JUDGMENT 1. - The sole accused in Sessions Case No. 198/2004 decided on 11.8.2005 by the Court of learned Addl. Sessions Judge (Fast Track) No. 1, Jodhpur, is the appellant before us. He has been charged with offence punishable under Sec lion 302, Indian Penal Code for committing murder of his wife Smt. Saraswati, who has been found guilty under this count and convicted and sentenced to undergo life term imprisonment with fine of Rs. 5,000/- and it was further ordered that in event of default in payment of fine, he will further undergo for one year simple imprisonment. Therefore, this appeal has been preferred, which was admitted by this Court vide order dated 16.1.2006 and record of the trial Court was called for. 2. The prosecution case was that on 21.12.2003 at about 2.30-3.00 P.M., the appellant/accused poured kerosene on his wife Smt. Saraswati and set her on fire by lightening a match stick. The injured was taken to Suncity Hospital, Jodhpur, where from, after giving first-aid, she was referred to Mahatma Gandhi Hospital, Jodhpur. While on treatment, she succumbed to the injuries on 8.1.2004 at about 7.20 P.M. It was also alleged that the appellant had been in habit of causing mental and physical cruelty after taking liquor, even prior to the occurrence towards his wife i.e. deceased Smt. Saraswati. It was on its basis that appellant/accused has been charged as aforesaid. 3. The evidence consists of the oral testimony of PWs Nos. 1 to 21, documents Ex.P-1 to Ex.P-24. Though there were no eye-witnesses to the occurrence but there were six dying declarations, as spoken to by PW-3 Dr. Harbans Singh, PW-5 Ragini, PW-9 Sri Am it Sahlot, Judicial Magistrate, PW-10 Kanhiya Lal, PW-17 Kamal Singh and PW-20 Gani Mohd. On the basis of circumstantial evidence and the oral testimony of the witnesses, the learned trial Court found the appellant-accused guilty, therefore, convicted and sentenced him as aforesaid. 4. Heard learned counsel for appellant and learned Public Prosecutor for State and perused the impugned judgment and trial Court record. 5. It is submitted by learned Amicus Curiae appearing on behalf of appellant-accused that dying declarations relied upon by the learned trial Court are not worthy to repose confidence in Court. 4. Heard learned counsel for appellant and learned Public Prosecutor for State and perused the impugned judgment and trial Court record. 5. It is submitted by learned Amicus Curiae appearing on behalf of appellant-accused that dying declarations relied upon by the learned trial Court are not worthy to repose confidence in Court. It has further submitted that the deceased was not in a position to speak as she was burnt 80%, therefore, it was not discernible as to what really the victim had told to the witnesses. Hence, those dying declarations cannot be connected with any other evidence. It has further submitted that the post mortem report Ex.P-10 issued by Dr. M.P. Joshi who conducted the autopsy, discloses that the cause of death was shock due to septicemia toxemia as a result of excessive burns. How did septicemia arise? No evidence is available in the case, therefore, it cannot be taken that the death was due to the burn injuries and not because of further and subsequent complications so on any count conviction cannot be sustained. He further submitted that deceased committed suicide at his own and appellant tried to save her. During rescue operation appellant himself sustained burn injuries. 6. On the other hand, it is submitted by the learned Public Prosecutor that the evidence on record is sufficient to conclude that the appellant was present all the while at the time of occurrence in his house. There is no reason to disbelieve the evidence of witnesses and dying declarations made by the deceased. The dying declarations spoken to the witnesses and the injuries found on the body of the deceased are sufficient enough to sustain the conviction that the accused might have attempted to save the deceased as is revealed by his injuries and the version of DW-1 is not sufficient to escape conviction. It is further submitted that there were 80% burn injuries. Treatment was given by the best hospital available in the city, therefore, there cannot have any failure in the treatment. The reason shown in Ex.P-10 may be obvious consequence that much burn injuries, therefore, there was no intervening circumstance and the death was caused only because of bum injuries. It is submitted that septicemia can only be caused because of 80% of the burn injuries. The Public Prosecutor further submits that there is no reason to interfere with the conviction. 7. It is submitted that septicemia can only be caused because of 80% of the burn injuries. The Public Prosecutor further submits that there is no reason to interfere with the conviction. 7. To decide the issues raised by the respective counsels, a brief of synopsis of evidence on record as led by the prosecution may be opposite. 8. PW-1 Nemi Chand stated that appellant-accused used to take drinks and threatened the deceased for domestic issues and on the fateful day i.e. on 21.12.2003, when he was cleaning his room, he heard loud cry of her maternal aunt (Mami) he ran towards ground floor where his maternal aunt was burning and Pradeep was pouring water on her. He brought a blanket and put it on her aunt and tried to of the fire. He has further submitted that his maternal uncle also tried to off the fire and went outside thereafter the injured was shifted to Suncity Hospital by Taxi belonging to Raju Sen wherefrom she was referred to MG Hospital and admitted for treatment. In cross-examination by the learned Addl. Public Prosecutor he agreed with the suggestion that when her maternal aunt was burning at that time nobody was in the room except his maternal uncle.PW-2 Raju also supported the prosecution story to the extent that on 21.12.2003 when he came for lunch at home, on hearing cries, he turned to the house of Uda Ram where Uda Ram was sitting having burns and his wife was burning. He further submitted that after putting the blanket on Smt. Saraswati Devi, he shifted her to Suncity Hospital by his Taxi thereafter she was forwarded to Mahatma Gandhi Hospital. He further submitted that after putting the blanket on Smt. Saraswati Devi, he shifted her to Suncity Hospital by his Taxi thereafter she was forwarded to Mahatma Gandhi Hospital. He also stated that while he brought Smt. Saraswati Devi hospital Nemi Chand was also with him and at that time Smt. Saraswati Devi was in a condition to talk but she did not say anything at this stage he was declared hostile.PW-7 Pradeep has supported the prosecution case to the extent that Smt. Saraswati Devi was burning in her house and he poured water on her to off the fire and also called the neighbour Raju and with the help of Raju Saraswati was taken to Suncity Hospital thereafter she was referred to Mahatma Gandhi Hospital.PW-8 Gopa Ram also supported the prosecution case to the extent that Saraswati was working in Suncity Hospital and she was brought to hospital in burnt condition after giving treatment doctor referred her to Mahatma Gandhi Hospital.PW-11 Naraini Devi mother of deceased has stated that her daughter Saraswati got married with Uda Ram 10-15 years prior to incident. She further submitted that Uda Ram was unemployed and used to quarrel with Saraswati and Saraswati was admitted in hospital in burnt condition as Uda Ram used to gave beatings to her. She further admitted the fact that she has stated before the police that on 21.12.2003 that Udai Ram poured kerosene on Saraswati for causing her death due to it Saraswati died on 8.1.2004 in hospital. Saraswati was sting up from her husband Uda Ram, Uda Ram never gave comforts to her daughter Saraswati as mentioned in Ex.P-8.PW-14 Mahesh is son of appellant accused admitted that Uda Ram occasionally used to take drinks. He recited from his police statement Ex.P-9.PW-16 Smt. Jasoda sister of the appellant accused supported the prosecution case to the extent that marriage of Uda Ram and Saraswati took place before 16-17 years back.PW-18 Smt. Leela Devi has supported the prosecution case to the extent that Saraswati Devi has supported the prosecution case to the extent that Saraswati Devi was working in Suncity Hospital. She also recited from her earlier police statement Ex.P-23.PW-3 Dr. Harbans Singh stated in his statement that Saraswati Devi was working as Sweeper in Suncity Hospital and she usually told them that her husband used to give beatings to her. She also recited from her earlier police statement Ex.P-23.PW-3 Dr. Harbans Singh stated in his statement that Saraswati Devi was working as Sweeper in Suncity Hospital and she usually told them that her husband used to give beatings to her. She also told them that her husband used to take drinks and snatched her money sometimes she shown marks of beatings on her face, back and on her hands. He has further stated that on 21.12.2003, she went to her home and on 3.00-3.30 P.M. site was brought to hospital in serious burnt condition by her neighbours. Her husband was not with her and he gave her primary treatment and being a MLC case she was referred to Mahatma Gandhi Hospital. Repeatedly she was asking that whether she will be saved or not at that time she was in a conscious condition and she told him that her husband burnt her by pouring kerosene on her. She was burnt exclusively from front side.PW-5 Ragini another employee of the Suncity Hospital also corroborated the statements of PW-3 Dr. Harbans Singh and stated that Saraswati Devi was brought to hospital in burnt condition by her neighbours and Dr. Harbans Singh Rajoria (PW-3) gave her primary treatment and she was also standing before Saraswati at that time Saraswati was in conscious condition though she was seriously burnt. She was asking that whether she will be saved or not and also told that her husband burnt her and smell of kerosene was coming from the body of Saraswati thereafter she was referred to Mahatma Gandhi Hospital.PW-9 Sri Amit Sahlot, the then Judicial Magistrate who recorded the dying declaration of deceased Smt. Saraswati Devi stated in his statement that after seeking report regarding mental condition of deceased Saraswati Devi from duty doctor Sri Sandeep Kumar, he recorded the statement of injured Saraswati Devi in question answer form as Ex.P-5 and in Kx.P-5 Smt. Saraswati Devi clearly stated that incident took place on 21.12.2003 at about 2.30-3.00 P.M. at her in laws house. On inquiring that how the incident took place, she clearly stated that since last 4-5 years his husband Uda Ram quarreled with her and gave beatings since marriage and today (on the day of incident), when she returned from duty and sit for lunch her husband abused her and told that he will kill her. On inquiring that how the incident took place, she clearly stated that since last 4-5 years his husband Uda Ram quarreled with her and gave beatings since marriage and today (on the day of incident), when she returned from duty and sit for lunch her husband abused her and told that he will kill her. Thereafter, he started to give "Dhakka Mukki" by fists blow and after caught hold of her, he snatched her upto the gate and said that go out thereafter he poured kerosene and set her on fire. She further stated that her mother-in-law was watching the whole incident while standing on stairs though her sister-in-laws were thereon first floor but they did not came there. On her cry one neighbour Pradeep came and poured water on her thereafter her sister-in-law's son Nemi Chand and neighbour Ramesh came there and shifted her to Suncity Hospital by taxi. Thereafter she was referred to Mahatma Gandhi Hospital.PW-10 Kanhiya Lal the brother of deceased also stated that her sister Saraswati told him in hospital that Uda Ram threatened her.PW-12 Dayarani, the sister-in-law (Bhabhi) has also stated that Saraswati Devi was employed in Suncity Hospital and was purterd from her husband. She further stated that on 21.12.2003, she received a telephone from hospital informing her that Smt. Saraswati had burnt and admitted in hospital and thereafter on 8.1.2004 she died.PW-13 Narpat, the neighbour of appellant accused also stated that a quarrel took place between Uda Ram and deceased Saraswati and Uda Ram after taking liquor used to give beatings to Sraswati.PW-19 Kamal Singh stated that on 21.12.2003 when he was posted as S.H.O., Mahila Thana, Jodhpur on the fateful day Sub Inspector Ghani Mohd., Police Station Sadar Kotwali, Jodhpur submitted a Parcha Bayan of Smt. Saraswati W/o Uda Ram, by caste Oad, Resident of Kila Ghati, Jodhpur at 9.30 P.M. on it, a case under Sections 324 and 307 of the I.P.C. was registered as Ex.P-13. He further submitted that on the same day the said parcha bayan was read over to the deceased which was approved by her and she stated that her husband burnt her after pouring kerosene on her in connection with demand of money. He further submitted that whatever Saraswati Devi stated he recorded the same. He further submitted that on the same day the said parcha bayan was read over to the deceased which was approved by her and she stated that her husband burnt her after pouring kerosene on her in connection with demand of money. He further submitted that whatever Saraswati Devi stated he recorded the same. He further submitted that Saraswati Devi told him that earlier too she gave her statements regarding pouring kerosene and she was set on fire by lightening a match stick by Uda Ram.PW-20 Ghani Mohd. has stated that on 21.12.2003 at about 4.05 P.M. he received a telephone call from Mahatma Gandhi Hospital that Saraswati Devi W/o Uda Ram is admitted in burn unit due to bum injuries, was called for inquiry. On this information, he went to burn unit of Gandhi Hospital where Smt. Saraswati Devi was admitted in female burn unit. After getting inquiry regarding her condition for giving statement recorded as Ex.P-12, she stated that since the statement was disc losing the offence under Sections 307 and 324 I.P.C. Hence, the same was sent to Mahila Thana for registering the case. He further stated that condition of the injured was serious so the reasons given for her treatment and after her medical examination, Chief Judicial Magistrate therefore, requested for recording the statement under Section 164 Cr.P.C., the learned Chief Judicial Magistrate was directed Judicial Magistrate No. 5 for recording the statement and the said Magistrate recorded the statement and the said Magistrate recorded the statement of injured Saraswati. In her cross-examination, he stated that when he reached at burn unit at that time her husband ran away.PW-15 Dr. M.P. Joshi who conducted the post mortem of the deceased Saraswati has stated that the cause of death was shock due to septicemia and toxemia due to burn also. He proved the post mortem report Ex.P-10. He further stated that the burn wounds were sufficient to cause death in ordinary course of nature. 9. From the statement of PW-15 Dr. M.P. Joshi and other witnesses the death of deceased Saraswati Devi was culpable homicide, which was not disputed by the learned Amicus Curiae. PW-15 Dr. M.P. Joshi also clearly stated that the cause of death was septicemia toxemia due to excess burns or the body of deceased. 10. Now the question remains that whether it was the case of suicide or murder? 11. PW-15 Dr. M.P. Joshi also clearly stated that the cause of death was septicemia toxemia due to excess burns or the body of deceased. 10. Now the question remains that whether it was the case of suicide or murder? 11. The case of prosecution rests on dying declarations and the law relating to dying declaration - the relevancy, admissibility and its probative value is fairly settled. More often the expression "relevancy and admissibility" are used as synonyms but their legal implications are distinct and different for more often without facts which are relevant may not be admissible for example; communication made by spouses during marriage or between an advocate and his client though relevant are not admissible; so also facts which are not admissible may not be relevant, for example questions permitted to be put in cross-examination to its veracity or much the credit of witnesses, though not relevant are admissible. The probative value of the evidence is weighed to be given to it which has to be judged. Having regard to the facts and circumstances of each case, in this case the thirst of the submission relates not to relevancy or admissibility but its value to be given to other dying declarations made by a person who is dead as to tire cause of death or as to any of the circumstances of the transaction which resulted in her death, in case in which death of his/her comes in question is relevant under Section 32 of the Evidence Act and is also admissible in evidence. Though dying declaration is indirect evidence being a spies on hearsay, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other circumstance evidence requires no corroboration for forming basis of conviction of an accused but then the question as to how much weight can be given to a dying declaration is a question of fact and has to be determined on the facts of each case. 12. The dying declarations made before Dr. Harbans Singh PW-3, Raghini PW-5, Naraini Devi PW-11, Kamal Singh PW-17 and Gani Mohd. PW-20, which followed by the dying declaration made vide Ex.P-5 by the deceased before PW-6 Judicial Magistrate Amit Sahlot, which was recorded in the form of questions and answers. 12. The dying declarations made before Dr. Harbans Singh PW-3, Raghini PW-5, Naraini Devi PW-11, Kamal Singh PW-17 and Gani Mohd. PW-20, which followed by the dying declaration made vide Ex.P-5 by the deceased before PW-6 Judicial Magistrate Amit Sahlot, which was recorded in the form of questions and answers. This dying declaration is a very important document because it amounts to a statement of the deceased verba dicta. Apart from the finding of the learned trial Court that the dying declaration made by the deceased before the Magistrate was true, we have ourselves also perused the dying declaration and find that it is a very natural and straight forward statement and contains a wing of truth, which also corroborates from the side plan that as a plate having meal was found at the place of incident with a jericane having kerosene smell in it and a burnt match-stick. There was absolutely no reason for the deceased to have falsely implicated the appellant-husband. It was argued by the learned counsel for the appellant that the deceased committed suicide while pouring kerosene and burnt herself. For proving this fact DW-1 Monika, the child witness who was six years old, was examined. Who stated that her Mummy poured kerosene on her at her own and lightened the fire from match-box. Her father came to rescue, who also got burnt. In cross-examination, she admitted that her Pappa caught hold the neck of her Mummy. She also admitted that sometimes Papa used to give beatings to her Mummy. 13. But in view of the dying declarations made before the above witnesses, the statement of Monika cannot be relied upon because the incident took place on 21.12.2003 and she was examined first time in the Court on 12.7.2005. During investigation, Monika was not produced before the Investigation Officer. Further, she remained with the mother and the relatives of the accused. As such, it cannot be ruled out that she is a tutored witness. Moreover, we find no reason why the deceased should implicate the appellant who is none else but her husband. The oral statement made by the deceased before PW-3 Dr. Harbansh Singh and PW-5 Ms. Ragini, was first in point of time is also consistent and straight forward and these are. Moreover, we find no reason why the deceased should implicate the appellant who is none else but her husband. The oral statement made by the deceased before PW-3 Dr. Harbansh Singh and PW-5 Ms. Ragini, was first in point of time is also consistent and straight forward and these are. Thereafter, deceased Saraswati stated that same statement before PW-20 Gani Mohammed, Sub Inspector who recorded her statement in M.G. Hospital, Jodhpur in the form of Parcha Bayan on which F.I.R. was registered. The fourth statement of the deceased made to PW-9, a Judicial Magistrate Amit Sahlot. Thereafter, Investigating Officer PW-17 Kamal Singh S.H.O., verified the statement (Parcha Bayan) recorded by PW-20 Gani Mohammed and thereafter deceased stated about the incident to her brother PW-10 Kanhaiya Lal and her mother PW-11 Narayani Devi, which fully corroborates the statement given by the deceased in the other dying declarations. Furthermore, the dying declarations by the deceased to the Magistrate (Ex.P-5) contains a certificate of the doctor that the deceased was conscious from the beginning at the time when the statement was recorded. PW-9 Amit Sahlot, Judicial Magistrate and PW-3 Harbans Singh and other witnesses had also said that the deceased was conscious when she made the statement before them. In these circumstances, we are of the opinion that the learned trial Court was fully justified in acting on the dying declarations of the deceased Saraswati Devi. Minor contradictions and embellishment in the statement of the witnesses are of no importance. Nothing important has been illustrated in the cross-examination to demolish the case of the prosecution. 14. As per the learned Amicus Curiae deceased herself poured kerosene on her and lightned fire and appellant accused tried to save her due to it he also suffered burn injuries. Though no injury report has been proved by the defence but one discharge ticket is available on record of the trial Court from which it is revealed that appellant-accused Uda Ram admitted in surgical unit 'A', Mahatma Gandhi Hospital, Jodhpur on 21.12.2003 having injuries on chest, abdomen and neck, as such there were no injuries on his hands if he would have saved the deceased then certainly he would have received bum injuries on his hands too. In absence of burn injuries on hands of Uda Ram this argument cannot be relied upon. 15. In absence of burn injuries on hands of Uda Ram this argument cannot be relied upon. 15. On the forgoing reasons and facts and circumstances of the case, we are of the opinion that no error is committed by the learned trial Court in convicting and sentencing the appellant under Section 302 I.P.C. for committing murder of his wife Smt. Saraswati, therefore, the appeal lacks its merit and deserves dismissal.For the foregoing reasons, the appeal fails and is hereby dismissed.Appeal dismissed. *******