JUDGMENT : Satish Kumar Mittal, J. Appellants Mewa Devi, mother-in-law, and Kavita Devi, sister in-law (Jethani) of deceased Smt. Sunil @ Pinki, aged about 20 years, have filed the instant appeal against the judgment of conviction dated 19.2.2004 and the order of sentence dated 27.2.2004, whereby they have been convicted u/s 302, Indian Penal Code and each of them has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000 in default to undergo rigorous imprisonment for an additional period of one year. 2. In this case, the Appellants along with Krishan Kumar (husband of Appellant No. 2 Kavita Devi) and Pritam Singh (husband of the deceased) were tried by the Court of Additional Sessions Judge, Bhiwani, for committing the murder of Smt. Sunil @ Pinki. However, the Trial Court acquitted Krishan Kumar and Pritam Singh, by giving them the benefit of doubt. Against their acquittal, no appeal has been filed either by the State or by the complainant. 3. In the present case, the case of the prosecution is based upon the statement (Ex. PB/1) of the deceased herself, recorded by the Sub-Divisional Judicial Magistrate, Charkhi Dadri, on 6.3.2000 at 9.45 p.m., in General Hospital, Charkhi Dadri, which was later on treated as her dying declaration, in that statement, she stated that she was married two years ago with Pritam Singh. On the day of occurrence, at about 8.30 p.m., when she was washing her hands in the bathroom, her mother-in-law Mewa Devi and 'Jethani' Kavita Devi caught hold of her. Her mother-in-law poured kerosene oil upon her and her Jethani lit the fire with match-stick. She also stated that she was burnt in connivance with her husband and Jeth Krishan. This statement was recorded by the Sub-Divisional Judicial Magistrate, Charkhi Dadri, on the application (Ex. PB) moved by ASI Balwant Singh, at 9.25 p.m., after obtaining the opinion of the Doctor (Ex. PA/1) at 9.20 p.m., to the effect that "Patient is fit for statement". 4. As per the statement of PW1 Dr. S.S. Dhankar, who medico legally examined Smt. Sunil @ Pinki immediately after her admission in the Hospital, she was brought to the Hospital on 6.3.2000 at 8.30 p.m. by Krishan (Jeth of the deceased) and one Yudhvir Singh, driver of the vehicle. He found 50 to 60 superficial deep burns on her body. As per the statement of PW1 Dr. S.S. Dhankar, who medico legally examined Smt. Sunil @ Pinki immediately after her admission in the Hospital, she was brought to the Hospital on 6.3.2000 at 8.30 p.m. by Krishan (Jeth of the deceased) and one Yudhvir Singh, driver of the vehicle. He found 50 to 60 superficial deep burns on her body. He also noticed that kerosene smell was present on the clothes and the body of the victim. On 23.3.2000, after 17 days of the occurrence, she died in the Hospital. According to PW7 Dr. Hariom Manchanda, who conducted autopsy of the deceased, she died due to extensive burns and its complications. The burns were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. 5. During investigation, on 24.3.2000, i.e. on the next day of the death of Smt. Sunil @ Pinki, Kartar Singh and Jatinder, father and brother of the deceased, made statements (Ex. DA and Ex. DB) before the police, to the effect that the deceased was burnt by her mother-in-law Mewa Devi and Jethani Kavita Devi by pouring kerosene oil. They specifically stated that they have no suspicion on any other person. However, after completion of investigation, the police filed challan against all the four persons and they were charge-sheeted for the offence 302 read with Section 120-B, Indian Penal Code, to which they did not plead guilty and claimed trial. 6. In support of its case, the prosecution examined 13 witnesses. PW6 Vijay Kumar Jain, Draftsman, PW8 Jaipal Singh EHC, PW9 Parkash Chand MHC, PW10 Constable Satpal Singh, PW11 Mahender Singh HC,. PW12 SI Sube Singh and PW13 SI Krishna Devi are the formal witnesses. 7. PW1 Dr. S.S. Dhankar medico legally examined the deceased at the time of her admission in the Hospital and gave the opinion regarding her fitness to make statement. 8. PW 2 Shri J.R. Duggal, the then Sub-Divisional Judicial Magistrate, Charkhi Dadri, proved the dying declaration (Ex. PB/1) of the deceased, recorded by him. 9. PW 3 Kartar Singh and PW 4 Jatinder, who are father and brother of the deceased, have made improvements in their earlier version, made by them to the police, while making statements Ex. DA and Ex. DB. 10. PW 5 Krishan Lal SI had partly investigated the case. PB/1) of the deceased, recorded by him. 9. PW 3 Kartar Singh and PW 4 Jatinder, who are father and brother of the deceased, have made improvements in their earlier version, made by them to the police, while making statements Ex. DA and Ex. DB. 10. PW 5 Krishan Lal SI had partly investigated the case. He has stated that initially, the investigation in this case was conducted by ASI Balwant Singh, who has now died. This witness has identified the signatures of ASI Balwant Singh on the documents prepared by him during investigation. 11. PW 7 Dr. Hariom Manchanda, who conducted post-mortem on the dead body of the deceased, proved the Post-Mortem Report Ex. PH. 12. In their statements u/s 313, Code of Criminal Procedure, all the accused denied the allegations appearing against them in the prosecution evidence. They pleaded innocence and false implication in the case. They stated that the deceased had made her dying declaration at the instance and tutoring of her parents. They further stated that they got treated Smt. Sunil at PGIMS, Rohtak till her death and they also donated blood for her. They took the plea that the deceased had received burns accidentally while preparing meal on kerosene oil stove. They further stated that on the day of the alleged occurrence, accused Pritam Singh was not present in the house at Dadri, because he had gone to Baroda (Gujarat State) on 27.2.2000 and had returned to Dadri only on 16.3.2000. In defence, the accused examined six witnesses. 13. DW. 1 Surender Kumar, Clerk, Blood Bank, PGIMS, Rohtak, brought the record regarding donation of blood, according to which Jai Parkash son of Ram Avtar and Roop Chand son of Dani Ram had donated their blood for Smt. Sunil @ Pinki. 14. DW. 2 Brij Lal, Clerk, Food and Supply Office, Charkhi Dadri, proved that accused Krishan Kumar was residing with his wife Kavita Devi (Appellant No. 2), his daughter Pooja and grand-mother Patori. 15. DW. 3 Rajinder Kumar proved the record regarding sale of medicines for victim Sunil. 16. DW. 4 Sewa Singh, Daftri, is the formal witness, who proved cash memos/bills Ex. D8 to Ex. D24, issued by the Cooperative Store, Rohtak. 17. DW. 5 Jai Parkash stated that he and his maternal uncle Roop Chand had donated blood on 17.3.2000 in PGIMS, Rohtak. 18. DW. 16. DW. 4 Sewa Singh, Daftri, is the formal witness, who proved cash memos/bills Ex. D8 to Ex. D24, issued by the Cooperative Store, Rohtak. 17. DW. 5 Jai Parkash stated that he and his maternal uncle Roop Chand had donated blood on 17.3.2000 in PGIMS, Rohtak. 18. DW. 6 Shamsher Singh, Head Reservation Clerk, Railway Station, Bhiwani, proved the railway tickets from Rohtak Junction to Barodara Junction dated 27.2.2000 (Ex. DJ) and from Barodara to New Delhi dated 16.3.2000 (Ex. DKJ). 19. After taking into consideration the aforesaid dying declaration (Ex. PB/1) made by the deceased, in which she has implicated her mother-in-law and Jethani, as well as statements Ex. DA and Ex. DB, made by Kartar Singh and Jatinder before the police, and by not relying upon the improvements made by them, while appearing in the Court as PW3 and PW4, respectively, with regard to involvement of accused Krishan Kumar and Pritam Singh as well as the demand of dowry, the Trial Court convicted and sentenced both the Appellants, as indicated above, whereas accused Krishan Kumar and Pritam Singh have been acquitted of the charges framed against them. However, no appeal was filed against their acquittal. 20. We have heard the arguments of learned Counsel for the parties and have gone through the Trial Court record. 21. Learned Counsel for the Appellants argued that the Trial Court has committed grave illegality while convicting both the Appellants, solely on the basis of the alleged dying declaration (Ex. PB/1) made by Smt. Sunil @ Pinki. According to the learned Counsel, the said dying declaration was not voluntary and after recording the same, no opinion of the doctor was obtained to the effect that the victim remained throughout fit to make the statement. Learned Counsel argued that opinion of the doctor about the fitness of the victim to make the statement should have been at both the stages, i.e. before recording her statement by the Magistrate and after completion of the statement. He further argued that after recording the statement of the victim, opinion of the doctor was not obtained and the alleged dying declaration does not have the endorsement of the doctor that during her statement before the Magistrate, she remained conscious and fit to make statement, therefore, it is not safe to treat the said statement as her dying declaration. He further argued that after recording the statement of the victim, opinion of the doctor was not obtained and the alleged dying declaration does not have the endorsement of the doctor that during her statement before the Magistrate, she remained conscious and fit to make statement, therefore, it is not safe to treat the said statement as her dying declaration. In this regard, learned Counsel has relied upon the decision of the Hon'ble Supreme Court in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P., 2007 (4) DLT 254 (SC). Learned Counsel further argued that if the dying-declaration is ignored, then there is no evidence, on the basis of which the Appellants can be convicted for the offence of murder. He argued that in these circumstances, the defence taken by the Appellants that the deceased had received burns accidentally while preparing meal on kerosene oil stove, seems to be probable, therefore, their conviction for the offence u/s 302, Indian Penal Code is not sustainable. 22. On the other hand, learned Additional Advocate General, Haryana, supported the judgment of conviction and the order of sentence, passed by the Trial Court and submitted that the Appellants have been rightly convicted and sentenced, on the basis of the evidence, available on the record. 23. After considering the submissions made by learned Counsel for the parties, we do not find any substance in the contentions raised by learned Counsel for the Appellants. As per the evidence available on record, the alleged occurrence had taken place on 6.3.2000 at about 8.30 p.m. in the bathroom of the matrimonial house of the deceased, where she was residing with her husband and his other family members, including all the accused persons. After the occurrence, she was immediately shifted to the Hospital. According to PW1 Dr. S.S. Dhankar, she was brought in the Hospital by her Jeth Krishan Kumar. She was medico legally examined by him and he found 50 to 60 superficial deep burns on her body. He also noticed that the kerosene smell was present on the clothes and body of the victim. Due to those burns, she had expired on 23.3.2000 in the Hospital itself. In the meanwhile, on the day of her admission in the Hospital, i.e. on 6.3.2000, her statement was recorded by PW2 Shri J.R. Duggal, the then Sub-Divisional Judicial Magistrate, Charkhi Dadri, after obtaining the opinion of the Doctor (Ex. Due to those burns, she had expired on 23.3.2000 in the Hospital itself. In the meanwhile, on the day of her admission in the Hospital, i.e. on 6.3.2000, her statement was recorded by PW2 Shri J.R. Duggal, the then Sub-Divisional Judicial Magistrate, Charkhi Dadri, after obtaining the opinion of the Doctor (Ex. PA/1) about the fitness of the victim to make statement. As per the record, the opinion (Ex. PA/1) was given at 9.20 p.m. and immediately thereafter, at 9.45 p.m., statement of the victim (Ex. PB/1) was recorded by the Magistrate. PW1 Dr. S.S. Dhankar, while appearing in the witness box, has proved the opinion (Ex, PA /1) given by him and stated that at that time, the victim was fully conscious and fit to make statement. PW2 Shri J.R. Duggal has duly proved the declaration (Ex. PB/1) made by the deceased to him. He has stated that when he recorded the said declaration, none of the relations of the victim was present besides her. Her father-in-law was standing outside the room. He has categorically denied the suggestion given to him that the declaration (Ex. PB/1) was tutored one and was not voluntary. However no suggestion was put to him that at the time, he recorded the said statement, the victim was not conscious or was unable to make the statement. We have perused the declaration (Ex. PB/1). The same was duly signed by the victim after reading over and accepting the same to be correct. The Magistrate had duly certified that victim Sunil @ Pinki had made her statement voluntarily and the same was recorded in his hand. In the said declaration, it was categorically stated by the declarant that on the day of occurrence, when she was washing her hands in the bathroom, her mother-in- law Mewa Devi and Jethani Kavita Devi caught hold of her. Then her mother-in-law poured kerosene oil upon her and her Jethani lit the fire with match-stick. We have perused the site plan (Ex. PG), which has been proved on record by PW6 Vijay Kumar Jain, Draftsman. The bathroom, where the alleged occurrence had taken place, is situated at a distance from the kitchen. According to the defence version, the deceased had received burns accidentally while preparing meal on kerosene oil stove. We have perused the site plan (Ex. PG), which has been proved on record by PW6 Vijay Kumar Jain, Draftsman. The bathroom, where the alleged occurrence had taken place, is situated at a distance from the kitchen. According to the defence version, the deceased had received burns accidentally while preparing meal on kerosene oil stove. This defence has not been proved by the Appellants, rather the evidence led by the prosecution clearly establish that it was a made-up defence, as in case of the deceased receiving burns accidentally while preparing meal on kerosene oil stove, there could not have been kerosene smell from the clothes and body of the victim. Secondly, the occurrence had taken place in the bathroom and not-in the kitchen. In her dying declaration, the deceased had named only heir mother-in-law and Jethani. Even the father and brother of the deceased in their initial statements (Ex. DA and Ex. DB) did not implicate the other family, members. However, subsequently during the trial, they tried to improve their version, therefore, their improved versions were not accepted. Accordingly, accused Krishan Kumar and Pritam Singh were acquitted of the charges. We do not find any reason to hold that the dying declaration (Ex. PB/1) made by the deceased was tutored one, as at that time neither the father nor the brother of the deceased was present in the Hospital. As per the statement of PW1 Dr. S.S. Dhankar, only father-in-law of the deceased was standing outside the room. Therefore, at that time, there was no body, who could have tutored the deceased to make the said dying declaration. Since the statement was recorded by the Magistrate, who had duly certified that the victim had voluntarily made the same before him and after that it was read over and explained to her and she signed it after accepting the same to be correct. Therefore, we do not find any substance in the argument of learned Counsel for the Appellants that the dying declaration (Ex. PB/1) made by the deceased was tutored one and not voluntary. 24. The second argument of learned Counsel for the Appellants is that at the time of making the said declaration (Ex. PB/1), the deceased was not conscious and in a fit state of mind to make the statement. PB/1) made by the deceased was tutored one and not voluntary. 24. The second argument of learned Counsel for the Appellants is that at the time of making the said declaration (Ex. PB/1), the deceased was not conscious and in a fit state of mind to make the statement. Learned Counsel argued that in the present case, there is no evidence that during the period, the deceased made the declaration to the Magistrate, she remained throughout conscious and fit. According to the learned Counsel, in mis regard, no opinion of the doctor was obtained by the Magistrate, after recording the declaration of the victim. We do not find any substance in this argument. Undisputedly, within one hour of the occurrence, statement of the victim was recorded at 9.25 p.m. As per the opinion (Ex. PA/1) given by PW1 Dr. S.S. Dhankar at 9.20 p.m., which has been duly proved by the doctor himself, the victim was fit to make statement. Thereafter, she remained alive for 17 days. She had put her signatures on her statement, after reading over and accepting the same to be correct. These facts clearly establish that at the time of making the said statement (Ex. PB/1), she was fully conscious and fit to make the statement. The judgment in Nallapati Sivaiah's case (supra), relied upon by learned Counsel for the Appellants is not applicable to the facts and circumstances of this case, because in that case, the declaration was recorded by the Magistrate without obtaining the opinion of the doctor as to the mental fitness of the declarant. Coupled with the said fact, in that case, the injured had suffered 63 injuries. In that situation, the Court had taken the inference that the declarant might not have been fit to make the statement. But this is not the situation in the present case. In the instant case, immediately before recording the statement of the declarant, the doctor had already given the opinion to the effect that "Patient is fit for statement". Therefore, the contention of learned Counsel for the Appellants that the said declaration cannot be relied upon, because after recording it, no endorsement of the doctor was obtained that the declarant remained throughout conscious and fit to make the said statement. Therefore, the contention of learned Counsel for the Appellants that the said declaration cannot be relied upon, because after recording it, no endorsement of the doctor was obtained that the declarant remained throughout conscious and fit to make the said statement. In Laxman v. State of Maharashtra 111 (2002) CCR 247 (SC), the Constitutional Bench of the Supreme Court has held as under: The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. 25. In view of the above, we do not find any illegality or infirmity in the recording of the dying declaration (Ex. PB/1) of victim Smt. Sunil @ Pinki, by the Judicial Magistrate. We are of the opinion that when the said declaration was recorded by the Magistrate, the declarant was fit to make the statement and had the opportunity to observe and identify the assailant. She had voluntarily made the statement, in which she has named both the Appellants, who poured kerosene oil upon her and lit the fire with match-stick. Therefore, conviction of both the Appellants by the Trial Court on the basis of the said dying declaration is fully justified. 26. In view of the above, the impugned judgment of conviction as well as the order of sentence is upheld and the appeal is, accordingly, dismissed. 27. As the Appellants are on bail, their bail bonds stand cancelled. The Appellants are directed to surrender themselves before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against the Appellants in accordance with law.