JUDGMENT 1. - Instant criminal appeal has been preferred by two appellants, namely Chotelal and his wife, Smt. Navalbai under Section 374 of the Code of Criminal Procedure, 1973. 2. In the present appeal, son of the appellants, namely Raju @ Rajendra (PW-5) was married with Smt. Vimla (PW-3). Raju @ Rajendra after marriage with Smt. Vimla (PW-3) had brought deceased - Smt. Sushila in his house, as a second wife. She was not accepted by his parents i.e. present appellants. 3. Case of the prosecution is that on 04.11.2003 Smt. Navalbai (appellant No. 2), being mother-in-law, had poured kerosene oil on Smt. Sushila (deceased) and Chotelal (appellant No. 1) had lit a match stick and ignited the fire. 4. Case of prosecution rests upon two Dying Declarations made by Smt. Sushila (deceased). One is in the form of Exhibit-P/5, statement made by Smt. Sushila (deceased) on 04.11.2003 at 11:40 P.M. while she was lying admitted in the Burns Ward at Bed No. 9, M.B.S. Hospital, Kota. The above said statement was recorded by Harnam Singh, A.S.I. (PW-2). After statement of Smt. Sushila (deceased) was recorded by Harnam Singh, A.S.I. (PW-2), he called Shri Sandeep Sharma, Additional Civil Judge-cum-Judicial Magistrate, No. 1, Kota (PW-18) for recording Dying Declaration of Smt. Sushila (deceased). The said Magistrate, on the intervening night of 4th & 5th of November, 2003, after obtaining opinion of the concerned Doctor regarding fitness of the deceased, recorded the statement in the night at around 02:05 A.M. The said statement now termed as Dying Declaration has been exhibited as Exhibit-P/20. 5. It is to be noted here that both the Dying Declarations contain no contradictions and supplement each other. 6. We shall first take note of the Dying Declaration (Exhibit-P/5) on the basis of which formal First Information Report (Exhibit-P/17) was registered at Women Police Station, Kota, being First Information Report No. 184/2003, dated 05.11.2003 for offences punishable under Sections 498-A and 307 I.P.C. 7. 6. We shall first take note of the Dying Declaration (Exhibit-P/5) on the basis of which formal First Information Report (Exhibit-P/17) was registered at Women Police Station, Kota, being First Information Report No. 184/2003, dated 05.11.2003 for offences punishable under Sections 498-A and 307 I.P.C. 7. The statement (Exhibit-P/5) recorded by A.S.I. Harnam Singh (PW-2) when translated into English reads as under:- "Statement/parcha-bayan of injured Smt. Sushila wife of Raju, aged twenty-eight years, by caste Yadav, resident of Santoshi Nagar, Kachhi Basti, Kota, Police Station, Mahaveer Nagar, Kota, at present admitted in the Burns Ward, at Bed No. 9, M.B.S. Hospital, Kota, dated 04.11.2003, at 11:40 P.M. while lying on the bed stated that my husband Raju has two wives, first wife is also residing with us. My father-in-law - Chotelal told my mother-in-law - Smt. Navalbai to pour kerosene. Thereafter, my father-in-law - Chotelal ignited match stick and put me on fire. At that time, my husband was not present in the house. It was about 07:00 A.M. I was cooking vegetables of spinach and fenugreek in a German vessel. When I was put on fire, my mother-in-law raised noise and said run she has put herself on fire and thereafter poured two buckets of water upon me. Thereafter, my husband came and took me upstairs. I am having two children; one son and one daughter from my first husband. I was earlier married at Mirzapur (Anta). Name of my first husband was Puran. After his death, I have performed Court Marriage with Raju. He told me that he is not having any other wife. Now his first wife has also came and she is also residing with us. My father-in-law and mother-in-law have liking for first wife of my husband and in order to kill me, my mother-in-law had poured kerosene oil upon me and father-in-law had put me on fire with a match stick. In case, I am cured, I will not stay with this person" L.T.I - Sushila Signature A.S.I." Action taken by Police : "The above said statement of injured Smt. Sushila wife of Raju, aged twenty-eight years, by caste Yadav, resident of Santoshi Nagar, Kachhi Basti, Kota, at present admitted in the Burns Ward, at Bed No. 9, M.B.S. Hospital, Kota has been recorded in the presence of duty Doctor Dr. Ashok Kumar, 1st Year Resident Doctor, P.G. Hostel, Burns Ward, M.B.S. Hospital, Kota. Ashok Kumar, 1st Year Resident Doctor, P.G. Hostel, Burns Ward, M.B.S. Hospital, Kota. The said statement was read over to the maker. She after hearing the same had appended her signatures. From the contents of the statement, offence under Section 307 and 498-A I.P.C. is made out. The statement is being sent to the Police Station for registration of the case. The statement be presented before Station House Officer. The above statement was carried by the Constable-Laddu Lal to the Mahila Police Station where formal First Information Report was registered. After the statement (Exhibit-P/5) was sent to the Police Station, A.S.I. Harnam Singh (PW-2) presented an application ( Exhibit - P/6 ) before the Judicial Magistrate for recording statement of Smt. Sushila under Section 164 of the Code of Criminal Procedure, 1973." 8. Shri Sandeep Sharma, who was then posted as Additional Civil Judge-Cum-Judicial Magistrate, 1st Class, Kota No. 1, on the intervening night of 04th & 05th of November, 2003 at around 02:05 A.M. reached the Burns Ward of the Hospital. He obtained opinion from Dr. Ashwani Rathore regarding fitness of Smt. Sushila and recorded the Dying Declaration of Smt. Sushila (Exhibit-P/20). 9. Dying Declaration (Exhibit-P/20), when translated into English reads as under:- "I was married four years ago. I am having one son and one daughter. My husband is having another wife, named Vimla. She also resides with us. Vimla was brought to house by my husband, Raju, fifteen-days ago. My parents-in-law are also residing with us. Yesterday in the evening of 07:00 P.M., I was cooking vegetables. At that time, my mother-in-law, Navalbai poured kerosene oil upon me from the stove. My father-in-law, Chotelal after igniting a match stick threw the same upon me. I immediately caught fire. At that time, my husband was not there. He had gone to Bazar. Vimla was present there, but she has done nothing. After I was burnt, my mother-in-law poured bucket of water upon me. Both my children are from my first husband who has died. I came to the house of Raju by way of "nata" marriage about four years ago. Our marriage was solemnised in the Court. I am having no child from the loins of Raju. My parents-in-law used to say that my husband is madly in love with me (Diwana bana diya hai). Therefore, I should be killed. I came to the house of Raju by way of "nata" marriage about four years ago. Our marriage was solemnised in the Court. I am having no child from the loins of Raju. My parents-in-law used to say that my husband is madly in love with me (Diwana bana diya hai). Therefore, I should be killed. Due to this reason, my mother-in-law and father-in-law had put me on fire. My husband and Vimla have not done anything against me. Vimla is married wife of Raju. She after staying in the house of her parents for seven-years came to our house fifteen-days ago. Vimla has two daughters from Raju. At the time of occurrence, my father-in-law and mother-in-law were there. After the occurrence, my father-in-law and mother-in-law had raised noise and gathered people of the colony to say that I have received burns from stove. My father-in-law and mother-in-law do labour work. I don't want to say anything else. Name of my son is Deepak and daughter's name is Kajal." 10. Having reproduced two Dying Declarations, we will take note of the medical evidence. 11. Dr. Rajesh Vaswani (PW-13) stated that he was a Member of the Medical Board. On 09.11.2003 at 11:15 P.M. autopsy was conducted on the dead-body of Smt. Sushila. 12. Another Member of the Medical Board was Dr. P.K. Tiwari (PW-20). As per opinion of the Doctors, cause of death was Septicemia due to burn injuries. Deceased had suffered 80% burns. 13. In cross-examination, this witness stated that he had examined the dead-body. Her neck and face were badly burnt. The burns were muscle deep and bones were not visible. The whole body was having burns. 14. Dr. P.K. Tiwari (PW-20) stated that on 05.11.2003 at 09:35 A.M. he had admitted Smt. Sushila in the Burns Ward. There were burns on the various parts of her body. Smt. Sushila had suffered 80% burn. Her general condition was bad. She had died on 09.11.2003 at 08:35 P.M. An autopsy was conducted on the next day i.e. on 09.11.2003 at 11:15 A.M. As per opinion of the Doctor, cause of death was Septicemia due to burn injuries. 15. In cross-examination, this witness stated that the patient was conscious. Her general condition was poor. There were no deep burns above the neck. This witness further stated that the patient was not unconscious, she was perplexed. 16. Mr. 15. In cross-examination, this witness stated that the patient was conscious. Her general condition was poor. There were no deep burns above the neck. This witness further stated that the patient was not unconscious, she was perplexed. 16. Mr. Tarun Jain, Advocate holding the brief of Mr. Sanjay Mehrishi, the learned counsel appearing for the accused-appellants, unable to assail the Dying Declaration recorded by the Judicial Magistrate in the presence of the Doctor, has not made any strenuous effort to assail the Dying Declarations. 17. Having examined both the Dying Declarations, which have been reproduced herein above and the statement of Dr. P.K. Tiwari (PW-20), who being a Medical Jurist admitted Smt. Sushila to the Hospital, and the fact that both the Dying Declarations bear the signatures of the Doctor to the effect that the Dying Declarations have been recorded in their presence, we are of the view that due credence ought to be given to both the Dying Declarations (Exhibit-P/5 and Exhibit-P/20) respectively. 18. We are also of the view that both the Dying Declarations do not suffer from any contradictions, and in fact broadly supplement each other. 19. Another prominent feature of the Dying Declarations, which we cannot ignore is that the deceased has not assigned any role to the first wife, who in a common parlance is called 'Sautan'. Generally, second wife bear a grudge against the first wife. 20. In the present case, deceased has absolved the first wife and has levelled no allegations against her. She has also categorically stated that her husband was not present at the house. 21. Our opinion to place implicit reliance upon Dying Declarations is further fortified by observations made by five-judge Bench of the Hon'ble Apex Court in the case of Laxman v. State of Maharashtra (A.I.R. 2002 S.C. 2973) , wherein it was held as under:- 4. "Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka Rosamma & Ors. "Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka Rosamma & Ors. v. State of Andhra Pradesh 1999 (7) SCC 695 the dying declaration in question had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart form the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji & Another v. State of Gujarat 1999(9) SCC 562 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander v. State of Punjab 1998 (9) SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise. 5. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise. 5. The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur v. State of Punjab 1999(6) SCC 545 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma & Ors. v. State of Andhra Pradesh 1999 (7) SCC 695 to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma & Ors. v. State of Andhra Pradesh 1999 (7) SCC 695 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji & Another v. State of Gujarat 1999(9) SCC 562 case." 22. In the present case, the Magistrate after obtained the opinion of the Doctor had recorded the Dying Declaration. v. State of Andhra Pradesh 1999 (7) SCC 695 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji & Another v. State of Gujarat 1999(9) SCC 562 case." 22. In the present case, the Magistrate after obtained the opinion of the Doctor had recorded the Dying Declaration. To us this Dying Declarations aspires confidence, and is, therefore, a reliable piece of evidence. 23. Having tough task to dislodge the Dying Declarations, the learned counsel appearing for the accused-appellants, has only argued, qua offence and has relied upon a Division Bench judgment of this Court rendered in the case of Govind Narayan and Others v. State of Rajasthan (D.B. Criminal Appeal No. 50/2004) decided on 17.01.2008, 2008 (4) W.L.C. 123 , to contend that since in the case relied husband after pouring kerosene oil on wife and putting her on fire thereafter had made an effort to douse the fire and considering this fact in the judgment relied offence was converted, we should also convert offence under Section 302 I.P.C. to Section 304 Part-II I.P.C. 24. It is contended by the learned counsel that intention of the parents-in-law was only to cause burn injuries to Smt. Sushila by putting her on fire, and not to cause her death. Counsel appearing on behalf of the accused-appellants contended that from both the Dying Declarations, it is evident that the accused had thrown water upon deceased to douse the fire. 25. In support of this contention, further reliance has been placed upon in the case of Kalu Ram v. State of Rajasthan [ (2000) 10 S.C.C. 324 ] to contend that where husband had poured water to save his wife, offence will not fall under Section 302 I.P.C. but to Section 304-Part-II I.P.C. 26. Having perused both the judgments, we are of the considered opinion that both the judgments are not attracted on the facts of the case. 27. In both the judgments relied upon, the act of putting deceased on fire was preceded with a quarrel. 28. In both the judgments cited above, Courts are of the view that due to quarrel, occurrence was a sudden affair and accused never intended to finish the victim, but they were having intention to frighten the victim. 29. 27. In both the judgments relied upon, the act of putting deceased on fire was preceded with a quarrel. 28. In both the judgments cited above, Courts are of the view that due to quarrel, occurrence was a sudden affair and accused never intended to finish the victim, but they were having intention to frighten the victim. 29. Facts of the present case speak otherwise: in the present case, there is no evidence that before putting Sushila on fire, there was any exchange of hot words between the accused and the deceased. Consequently, we reject the contention raised, qua modification of the offence. 30. Another submission made by the learned counsel is that since the death had taken place, after four-days of the occurrence and the cause of death is Septicemia, therefore, on this count also, we should convert offence. This contention is also unacceptable to us. 31. The deceased had suffered 80% burns while being admitted to the hospital, her general condition was poor. She had suffered Septicemia due to burn injuries. Intention of the accused to pour kerosene oil and thereafter, put deceased on fire by lighting match stick depicts their well thought and intention to finish Smt. Sushila, as they had not accepted the second marriage of their son, and they were favourably deposed towards Smt. Vimla, the first wife of their son. 32. It is probable that accused had not condoned the act of their son to bring the second woman as wife along with two children. Therefore, they were hostile towards the presence of Smt. Sushila in the house. 33. Taking totality of circumstances, we reject the only contention raised by the learned counsel appearing for the accused-appellants, qua modification of the offence and dismiss the appeal, being devoid of merit.Appeal dismissed. *******