JUDGMENT 1. - Being aggrieved by the conviction recorded for an offence punishable under Section 302 Indian Penal Code and the sentence awarded, i.e., life imprisonment with a fine of Rs. 3,000/- and in default of payment of fine further to undergo simple imprisonment for three months, by the judgment dated 29.7.2004 passed by learned Additional Sessions Judge (Fast Track), Chittorgarh, this appeal is preferred. 2. The facts of the case in nut shell, are that on receiving a .telephonic message about admission of Smt. Tara wife of Kalu Meena to burn unite of the Government Hospital, Shri Bhagwan Singh (PW-13), Sub Inspector, Police Station, Chanderia, on 5.10.2003 at about 11:45 PM, reached at the hospital. Looking to the serious condition of Smt. Tara, after getting a certificate Ex.P-12 from the medical jurist about her physical competence about narrating statement of facts, got her dying declaration (Ex.P-11) recorded through Judicial Magistrate Smt. Rekha Sharma. After availing a certified copy of the dying declaration the sub Inspector submitted a first information report to the Station House Officer, Police Station, Chanderia. A case, thus, was registered and investigation was initiated. 3. During the course of treatment Sint. Tara died at Government Hospital, Udaipur on 10.10.2003, therefore, investigation was launched for an offence punishable under Section 302 Indian Penal Code and after completion of the same a report as per provisions of Section 173 Cr:P.C. was filed. 4. The trial Court proceeded with trial as desired on denial of the charge for commission of an offence punishable under Section 302 Indian Penal Code. 5. The prosecution supported its case with the aid of 19 witnesses and several documents including Ex.P-13, the dying declaration. Learned trial Court held the accused appellant guilty for an offence punishable under Section 302 Indian Penal Code by relying upon the dying declaration Ex.P-13 made by deceased Smt. Tara before Judicial Magistrate Smt. Rekha Sharma. 6. In appeal, the argument of counsel for the accused appellant is that most of the witnesses on whom the prosecution relied, have not supported the prosecution case and as such the dying declaration is not adequately corroborated, hence that is not sufficient to rest the conviction under Section 302 Indian Penal Code. 6. In appeal, the argument of counsel for the accused appellant is that most of the witnesses on whom the prosecution relied, have not supported the prosecution case and as such the dying declaration is not adequately corroborated, hence that is not sufficient to rest the conviction under Section 302 Indian Penal Code. In alternative, it is also submitted that the case of the accused appellant does not come within the ambit of 'murder" as defined under Section 300 Indian Penal Code, but is an offence punishable under Section 304 part-II Indian Penal Code. 7. Per contra, as per learned Public Prosecutor the terms of dying declaration are quite definite, therefore, i.e., sufficient to record conviction of the accused appellant under Section 302 Indian Penal Code. While meeting with the alternative argument, it is urged that the evidence available on record is sufficient to establish that the accused was having only one intention, i.e., to kill Smt. Tara, therefore, the conviction has been rightly recorded for commission of an offence of murder. 8. Heard counsel for the parties and scanned the entire record. 9. Deceased Smt. Tara as per the evidence available on record was brought to the Government Hospital, Chittorgarh in the night of 5.10.2003 and she was immediately examined by a competent medical officer. As per the injury report Ex.P-17 though the patient was conscious but she was having 90-95% burns. The burns occurred due to dry heat. The patient then was referred for further treatment to Government Hospital, Udaipur where she' died on 10.10.2003. The postmortem report is available on record as Ex.P-22 and according to that cause of death is septicemia shock resulted by severe antemortem burns which are sufficient to cause death in ordinary course of nature, in view of the medical evidence referred above, there is no doubt about homicidal death of Smt, Tara. 10. True it is, the family members of the deceased including her son Deepak (PW-18), a child witness, have not supported the prosecution case, however the dying declaration (Ex.P-13) recorded by Sint. Rekha Sharma (PW-8) on basis of the process initiated by Sub Inspector Shri Bhagwan Singh (PW-13), is quite an important piece of evidence and, therefore, the trial Court settled the conviction on basis of it. 11. Rekha Sharma (PW-8) on basis of the process initiated by Sub Inspector Shri Bhagwan Singh (PW-13), is quite an important piece of evidence and, therefore, the trial Court settled the conviction on basis of it. 11. The first argument of counsel for the appellant is that the dying declaration is not corroborated by other evidence, therefore, that should have not been relied upon, Hon'ble Supreme Court in Khushal Rao v. State of Bombay, reported in AIR 1958 SC 22 , while dealing with the issue pertaining to the need of corroboration of a dying declaration, held as under: "A dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the, death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case." 12. In Kusa & Ors. v. State of Orissa, reported in AIR 1980 SC 559 , the Apex Court while dealing with the same issue held as under : "A person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives. In Kusa & Ors. v. State of Orissa, reported in AIR 1980 SC 559 , the Apex Court while dealing with the same issue held as under : "A person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives. In fact the shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding the causes or circumstances leading to his death which are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth. It is for these reasons that the Statute (The Evidence Act) attaches a special sanctity to a dying declaration. Thus, if the statement of a dying person passes the test of careful scrutiny applied by the Courts, it becomes a most reliable piece of evidence which does not require any corroboration. Suffice it to say that it is now well established by a long course of decisions of this Court that although a dying declaration should be carefully scrutinised but if after perusal of the same, the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration." 13. In view of the judgments aforesaid, a dying declaration is not required to be corroborated by other evidence, if, i.e., free from any effort to prompt the deceased to make a statement and is coherent and consistent. 14. PW-13 Shri Bhagwan Singh received a telephonic information at Police Station Chanderia and as per him he then immediately rushed to the Government Hospital. The total time taken by him for reaching the hospital was about 5-10 minutes. This witness then availed necessary certificate about physical condition of Smt. Tara and called for in accordance with law to Smt. Rekha Sharma, the Judicial Magistrate, to record the dying declaration. 15. The total time taken by him for reaching the hospital was about 5-10 minutes. This witness then availed necessary certificate about physical condition of Smt. Tara and called for in accordance with law to Smt. Rekha Sharma, the Judicial Magistrate, to record the dying declaration. 15. PW-8 Smt. Rekha Sharma recorded dying declaration of Smt. Tara which reads as under : iz'u % rqEgkjh mez D;k gS\ mRrj& mez irk ugha gSA iz'u % vkidk uke D;k gS\ mRrj& esjk uke rkjk gSA iz'u % ifr dk uke mRrj& dkyw iz'u % 'kknh fdrus o"kZ iwoZ gqbZ mRrj& eq>s ekywe ugha gSA iz'u % rqe dSls tyh mRrj& eq>s esjs vkneh us tyk;k iz'u % vkneh dk uke crkvks\ mRrj& eq>s esjs vkneh dkyw firk rqylhjke us tyk;k iz'u % dSls tyk;k rqEgs\ mRrj& esjk vkneh dkyw 'kjkc ihdj ?kj vk;k vkSj esjs ikl vk;k vkSj dgk fd vkt eSa rq>s ek:xk vkSj mlus esjs mij dsjklhu Mkydj fryh yxk nhA iz'u % rqEgkjs lkFk ml le; vkSj dkSu Fkk mRrj& esjs lkFk ml le; esjs cPps Fks mUgksaus Hkh tykrs gq, ns[kk iz'u % rqEgkjs cPpksa ds uke D;k gS mRrj& esjs cPps dk uke nhiw] nhuk] lwjt gSA iz'u %?kVuk ds le; lkl lklqj dgka FksA mRrj& esjs lkl llqj esjs ls vyx jgrs gSA esjs ek= lkl gSaA " 16. Smt. Rekha Sharma (PW-8) stated before the Court that at the time of declaring dying declaration nobody was present including father, mother and sister of the burnt person close to her. She also stated,that looking to severe burns Tara was narrating the facts quite slowly. From examination of the dying declaration (Ex.P-13) and the statements of Smt. Rekha Sharma (PW-8) we are having no doubt that the dying declaration was given with free will and without having any pressure. 17. In the case in hand, as already discussed above, there is no evidence available on record to establish any prompting or pressure upon Smt. Tara for giving such a statement. It is also relevant to note that the dying declaration was recorded by the competent judicial officer as early as possible without providing any space for prompting or pressurising Smt. Tara. The statement given is apparently independent and is outcome of a free will, thus, such a dying declaration is sufficient to record a conviction. 18. It is also relevant to note that the dying declaration was recorded by the competent judicial officer as early as possible without providing any space for prompting or pressurising Smt. Tara. The statement given is apparently independent and is outcome of a free will, thus, such a dying declaration is sufficient to record a conviction. 18. The other argument of counsel for the appellant is that the offence committed by the accused does not travel beyond an offence punishable under Section 304 part-II Indian Penal Code, and this argument is substantiated with the aid of the judgment of Hon'ble Supreme Court in Kalu Ram v. State of Rajasthan, reported in 2000 Cr.L.R. (SC) 18 . In the case aforesaid Hon'ble Supreme Court modified the conviction recorded under Section 302 Indian Penal Code to Section 304 part-II Indian Penal Code on reaching at the conclusion that a man pouring kerosene would not have anticipated that the act done by him would have escalated to such a proportion that a lady may die. In the case aforesaid an additional fact was the effort made by the accused to save the victim after getting burnt. 19. In the instant matter the factual position is quite different. The deceased was brought to the hospital on suffering ablaze. She was having 90-95% burns and there is no evidence available on record that any effort was made by the accused to save her. It is also pertinent to note that Smt. Bhuri (PW-14) though declared hostile, accepted in cross-examination that during the course of investigation she stated to the investigating agency that the fire was stopped by neighbours and at that time Kahl was standing nearby under intoxication. This fact clearly establishes that no effort at all was made by the accused to save his wife. The only conclusion that could have been arrived on basis of the evidence available is that the accused was intending to kill the deceased by ablaze. The trial Court, therefore, has not committed any wrong that may warrant interference of this Court. 20. The appeal, for the reasons given above, is having no merit. Hence, dismissed.Appeal dismissed. *******