Judgment ( 1. ) THE appellant Thakkar @ Jamna Prasad being aggrieved by the judgment dated 31. 8. 2000 passed in S. T. No. 244/99 by the learned Second Additional Sessions Judge, Hoshangabad, convicting the appellant under Section 302 IPC, sentencing him to undergo RI for life and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for one year, has filed this appeal. ( 2. ) THE prosecution case in short is that accused Thakkar taking an exception to the fight between deceased Deepa and wife of the accused, doused/sprinkled kerosene upon Deepa Sona, brought her in the open Veranda and thereafter set her to fire. On the alarm raised by the deceased, her husband and others came to the spot, they tried to extinguish the fire and immediately thereafter the deceased was taken to the hospital. At about 2. 25 PM Dr. U. C. Saxena (PW-5) informed the police about admission of Deepa Sona in the hospital in burnt condition. Dr. Saxena examined the deceased and tried to repair her injury. On interrogation by Dr. Saxena, the deceased Deepa Sona informed him that the accused, his wife and others sprinkled Kerosene upon her and set her to fire. Naib Tahsildar, Mr. J. L. Marang (PW-8) was requested to come for recording the dying declaration. He reached the spot and recorded the dying declaration as contained in Ex. P/14. PW-4 Adil Imam, Sub inspector of Police also recorded the statements of the deceased under Section 161 Cr. P. C. It is to be noted that in the dying declaration recorded by the Naib Tahsildar, the statements recorded under Section 161 Cr. P. C. and in the case history the different witnesses recorded that the deceased every time informed the officer putting the question that she was burnt by the accused, his wife and the other relations. The accused was arrested on 8. 9. 1999. After the death of the deceased, the body was sent for autopsy. The doctor opined that the deceased died because of the extensive burn injuries. After completing the investigation, the accused was prosecuted and was ultimately convicted and sentenced as referred to above. ( 3. ) SHRI Gangrade, learned counsel for the appellant/accused submitted that the Court below has not relied upon Ex. P/14, the dying declaration recorded by Naib Tahsildar, Mr. J. L. Marang (PW-8) and Ex. After completing the investigation, the accused was prosecuted and was ultimately convicted and sentenced as referred to above. ( 3. ) SHRI Gangrade, learned counsel for the appellant/accused submitted that the Court below has not relied upon Ex. P/14, the dying declaration recorded by Naib Tahsildar, Mr. J. L. Marang (PW-8) and Ex. P/7, the case diary statements recorded by Mr. Adil imam (PW-4) and, therefore, this Court is also left with Ex. P/11, the case history recorded by the doctor. It is submitted by him that the statements recorded in the case history would not amount to a dying declaration and as in the present case except Ex. P/11 there is nothing else to connect the appellant with the alleged crime and as ex. P/11 does not inspire confidence, the accused is entitled to be acquitted. ( 4. ) SHRI S. K. Rai, learned Government Advocate for the State, on the other hand submitted that while interrogating the deceased, the doctor had put certain questions to the injured and if at that point of time the injured informed the doctor that the particular people/person were/was responsible for the injuries then such statement of the deceased would be of an oral dying declaration. Referring to the statement of PW-5 Dr. U. C. Saxena, it is submitted that on the questions put by the defence counsel, the doctor clearly informed the Court that the patient when was brought to the hospital was in senses, she was conscious and she was able to understand the questions and give answers. It is also submitted that in the cross-examination, no question has been put to the doctor that the statement recorded in Ex. P/11 that the patient was conscious and was responsive to question was incorrect. It is submitted by Shri Rai that the prosecution has proved its case beyond every shadow of doubt. ( 5. ) WE have heard the parties at length. ( 6. ) EX. P/14 the dying declaration recorded by PW-8 Shri J. L. Marang and the case diary statements Ex. P/7 recorded by PW-4 adil Imam have not been relied upon by the learned Court below, therefore, we ignore the said documents from consideration. ( 7. ) SO far as Ex. P/11, the case history is concerned, it contains a statement :. . . (Other Language Omited ). . . P/7 recorded by PW-4 adil Imam have not been relied upon by the learned Court below, therefore, we ignore the said documents from consideration. ( 7. ) SO far as Ex. P/11, the case history is concerned, it contains a statement :. . . (Other Language Omited ). . . After this statement, a portion marked as b to b reads "as per her statement". In the fourth line from the last, the doctor had recorded "pt. GC low conscious responsive to question". From these two statements recorded in Ex. P/11, it would clearly appear that the patient had given the history to the doctor and she informed the doctor that her brother-in-law (husbands younger brother) Jamna, wife of Jamna and other members of family poured Kerosene upon her and burnt her. It also appears that when she was brought to the hospital she was conscious and she could understand and answer the questions. ( 8. ) PW-5 Dr. U. C. Saxena when was suggested in the cross-examination that the patient was unconscious he denied the suggestion and said that the patient was conscious and the doctor was not required to ask questions to the relations because the patient was competent to give replies. In paragraph-6, when a suggestion was given to him that the portion marked b to b in ex. P/11 was later on added by him, the doctor denied the suggestion. After going through the original of Ex. P/11 the flow of the handwriting and the continuity in which it is recorded, we are of the opinion that the portion marked as b to b has not been subsequently added. In the last line of paragraph-6, he again denied the suggestion that the patient was unconscious when she was brought to the hospital. If in reply to the suggestions given in the cross-examination, the doctor has denied all the suggestions and has stood firm to his earlier statement that the patient was conscious, was responsive to question and patient herself informed the doctor that she was burnt by the accused, his wife and other relations then there is no scope for any interference to hold otherwise. ( 9. ) IT was lastly contended that if the deceased was burnt by the accused and other persons who have not been convicted or prosecuted then the accused is entitled to be acquitted. ( 9. ) IT was lastly contended that if the deceased was burnt by the accused and other persons who have not been convicted or prosecuted then the accused is entitled to be acquitted. In our opinion, non-conviction or non-prosecution stands on different footing. If a particular person is prosecuted alongwith the other and each of them is facing identical charges then the acquittal of other would pave the path for another for acquittal but in a case where the other persons involved in the crime have not been prosecuted then it cannot be argued that the positive evidence should be brushed aside because for one reason or the other, the other persons involved in the crime have not been prosecuted. ( 10. ) WE find no reason to interfere. The appeal is dismissed.