JUDGMENT 1. - Convicted for having killed his wife, Mrs. Raju Bai, and sentenced to life imprisonment and imposed with a cost of Rs. 1000/- and further directed to undergo one year of rigorous imprisonment for offence under Section 302 IPC, the appellant, Chandraprakash has knocked at the doors of this court. He has challenged the judgment dated 15.9.2004, passed by the Additional Sessions Judge (Fast Track) No. 1, Jhalawar. 2. Briefly, the facts of the case are that on 19.10.2003, at 11.25 PM, Ratan Singh, S.I., of Police Station Khanpur had recorded the statement (Ex.P.9) of Mrs. Raju Bai at the General Ward, Bed No.3. In her statement, she claimed that "two years ago she was married to Chandraprakash S/o. Kalu Lal Meena, r/o. Moomalhedi. Her parental place is at village Talchi. My Father's name is Chhitar Lal. My Gauna (a ceremony performed after the marriage of a woman whereby the woman is finally sent to her in-laws home) had taken place about twelve months ago. After my Gauna, I have been coming and going to my in-laws place. In my dowry, I was given T.V. and other things. Today, at 8.00 AM, my husband, Chandraprakash, father-in-law, Kalu Lal, my mother-in-law and my elder brother-in-law (Jeth), Pappu Lal, poured kerosene over me and put me on fire. The villagers came and doused the fire. Since I was not going for any work outside the house, therefore, I had been burned. In the evening when my father came to my village, I told him everything. Due to the fire, my complete body has been burned. Signed - Raju Bai". 3. On the basis of this Parcha Bayan (Ex. P. 9), a formal FIR (Ex.P.11), FIR No. 450/2003, was chalked out for offences under Sections 498A and 307 IPC; the investigation began. During the course of the investigation, on the same night, i.e. on the night of 19.10.2003, at around 12.07 AM (technically the date is 20.10.2003), the Civil Judge (Jr. Div.) & Judicial Magistrate, Khanpur, Mr. Suresh Prakash Bhatt (P.W.5) recorded the dying declaration (Ex.P.7) of Mrs. Raju Bai. In her dying declaration, she claimed as under:- "Two years ago, I was married to Chandraprakash. On 19.10.2003, at 8 O'clock in the morning, my husband, Chandraprakash, poured kerosene on my body and burned me. Div.) & Judicial Magistrate, Khanpur, Mr. Suresh Prakash Bhatt (P.W.5) recorded the dying declaration (Ex.P.7) of Mrs. Raju Bai. In her dying declaration, she claimed as under:- "Two years ago, I was married to Chandraprakash. On 19.10.2003, at 8 O'clock in the morning, my husband, Chandraprakash, poured kerosene on my body and burned me. My elder brother-in-law (Jeth), Pappu Lal, my father-in-law, Kalu Lal, and mother-in-law, Dwarika Bai, were present at the moment when I was burned. My mother-in-law, my father-in-law and my elder brother-in-law (Jeth) ensured that my husband would burn me. My mother-in-law, father-in-law and elder brother-in-law did not try to save me. I was burned inside the house with the use of a matchstick. Screaming, I rushed out to the house. I have studied till the eighth class. Since I would not go out for any work and would not do any labor, therefore, I have been burned. The villagers had gathered, but nobody tried to save me". 4. A note attached to the dying declaration states that "since the woman is completely burned and since her hands are burned, therefore, she cannot sign the document. Therefore, her thumb impression is being recorded." Below the signature of the Judicial Magistrate, there is a note that "the injured woman, Smt. Raju Bai, is burned about 90%, but she is conscious and she has answered each question in a proper manner." Signed the medical officer - Dr. Pratibha Mehta (P.W.8). 5. After completing the investigation, the police filed a charge-sheet against four persons, namely Chandraprakash, Kalu Lal, Dwarka Bai and Pappu @ Mohan Lal. However, as Pappu @ Mohan Lal had absconded, the charge-sheet was submitted against him under Section 299 Cr. P. C. The charge-sheet was submitted for offence under Section 302/34 IPC. By order dated 20.5.2004, the case was committed to the court of Sessions Judge, Jhalawar; by order dated 5.6.2004, the case was transferred to the court of Additional Sessions Judge (Fast Track) No.1, Jhalawar. 6. In order to support its case, the prosecution examined eleven witnesses, and submitted about thirteen documents. On the other hand, the defense examined four witnesses and submitted four documents. 7. After going through the oral and documentary evidence, by judgment dated 15.9.2004, the learned Judge convicted the appellant, Chandraprakash, as aforementioned. But the learned Judge has acquitted Kalu Lal and Dwarka Bai of offences under Section 498A, 302 IPC. On the other hand, the defense examined four witnesses and submitted four documents. 7. After going through the oral and documentary evidence, by judgment dated 15.9.2004, the learned Judge convicted the appellant, Chandraprakash, as aforementioned. But the learned Judge has acquitted Kalu Lal and Dwarka Bai of offences under Section 498A, 302 IPC. He has also acquitted the appellant, Chandraprakash, of offence under Section 498A IPC. Hence, the present appeal before this court. 8. Mr. Santosh Kumar Jain, the learned counsel for the appellant has raised the following contentions before this court: firstly, there are glaring contradictions between the Parcha Bayan (Ex.P.9) of Mrs. Raju Bai and the dying declaration (Ex.P.7). Therefore, the learned Judge has erred in relying upon the dying declaration for convicting the appellant. 9. Secondly, the dying declaration is a tutored one as according to Suresh Prakash Bhatt (P.W.5) when he went to record the dying declaration, Chhitar Lal (P.W.11), the father of the deceased, was with Mrs. Raju Bai. Therefore, the dying declaration is an unreliable piece of evidence. 10. Thirdly, according to the testimony of the defense witnesses, namely Dhanna Lal (D.W.1), Dwarka Lal (D.W.2), Ram Narain (D.W.3), Bajrang Lal (D.W.4), at the time when Smt. Raju Bai burned herself, neither the appellants, nor his parents, nor his brother was in the house. All of them had gone to their respective work. According to them, Mrs. Raju Bai was in her house with her brother, Kanhaiya Lal. 11. Lastly, according to the defense, Mrs. Raju Bai had an illicit affair with one Devkaran. Kanhaiya Lal, her brother had raised an objection about the illicit affair. Therefore, there was a fight between the brother and the sister. Thus, Mrs. Raju Bai poured kerosene upon herself, and tried to burn herself. Hence, it is a case of suicide. This fact is abundantly clearly from the testimony of Kailash Singh (P.W.1) who is the investigating officer in this case. 12. On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor, has pleaded that firstly, there is no glaring contradiction between the Parcha Bayan (Ex.P.9) and the dying declaration (Ex.P.7). In both her statements there may be minor contradictions, but not major one. 13. Secondly, the dying declaration has not been tutored by Chhitar Lal, the father of the deceased. Thus, the dying declaration given to the Magistrate is a reliable piece of evidence. In both her statements there may be minor contradictions, but not major one. 13. Secondly, the dying declaration has not been tutored by Chhitar Lal, the father of the deceased. Thus, the dying declaration given to the Magistrate is a reliable piece of evidence. In the dying declaration, Mrs. Raju Bai has explicitly implicated the appellant for having burned her. According to Mrs. Raju Bai, her parent-in-laws and her elder brother-in-law had merely watched her burning, and did not rush to her rescue. Therefore, the learned Judge was justified in acquitting them for offence under Section 302/34 IPC and for convicting the appellant for offence under Section 302 IPC. 14. Thirdly, Kailash Singh (P.W.1), the investigating officer, does claim that Tulsi Ram and Kanhaiya Lal S/o. Bhanwar Lal Meena (not the brother of the deceased) had told him that they were the first to reach the spot when Mrs. Raju Bai was burning. According to these two witnesses, neither the appellant, nor other accused persons were present in the house when Mrs. Raju Bai burned herself. But these persons have not been produced as defense witnesses. Therefore, the statement given by Kailash Singh (P.W.1) is merely hearsay evidence. Hence, it is immaterial. 15. Fourthly, since the dying declaration (Ex. P. 7) is a reliable one, there is no reason to believe the testimonies of the defense witnesses who claim that Chandraprakash and his family members were not in the house at the time of incident. According to the learned Public Prosecutor there is a sanctity attached with a dying declaration as there is no reason why Mrs. Raju Bai would falsely implicate her husband and her parents-in-laws and her elder brother-in-law. Thus, the Public Prosecutor has fully supported the impugned judgment. 16. Heard the learned counsel for the parties, examined the record, and perused the impugned judgment. 17. In the case of Atbir v. Government of NCT of Delhi [ (2010) 9 SCC 1 ] , the Hon'ble Supreme Court has laid down the principles governing the admissibility and the evidentiary value of dying declaration in a criminal trial. The Apex Court held as under:- "22. The analysis of the above decisions clearly shows that: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. The Apex Court held as under:- "22. The analysis of the above decisions clearly shows that: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration". 18. Since both the Parcha Bayan (Ex.P.9) and the dying declaration (Ex.P.7) have been quoted above, they are not being reproduced here again. Both the Parcha Bayan (Ex.P.9) and the dying declaration (Ex.P.7) clearly reveal that Mrs. Raju Bai had narrated a consistent story on both the occasions. In the case of Dalip Singh & Ors. 18. Since both the Parcha Bayan (Ex.P.9) and the dying declaration (Ex.P.7) have been quoted above, they are not being reproduced here again. Both the Parcha Bayan (Ex.P.9) and the dying declaration (Ex.P.7) clearly reveal that Mrs. Raju Bai had narrated a consistent story on both the occasions. In the case of Dalip Singh & Ors. v. State of Punjab [ (1979) 4 SCC 332 ] , the Hon'ble Supreme Court has held as under:- "Although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a doctor. The practise of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. It is not that such dying declarations are always untrustworthy, but better and more reliable methods of recording dying declarations of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method." 19. In her dying declaration (Ex.P.7) given to the Judicial Magistrate, Mrs. Raju Bai has categorically implicated her husband, Chandraprakash. According to her, her parents-in-law and elder brother-in-law watched her burn, but did not rush to her rescue. There is no reason whatsoever for Mrs. Raju Bai to falsely implicate her husband. Moreover, she has also mentioned the reason why she was burned by her husband: she refused to work outside the house and to earn for the family. Since the dying declaration (Ex.P.7) is a reliable piece of evidence, the appellant could be convicted on the basis of this dying declaration (Ex.P.7) alone. 20. Although the learned counsel for the appellant has contended that the dying declaration was a tutored one, but the testimony of Suresh Prakash Bhatt (P.W.5) belies this contention. In his cross-examination, Suresh Prakash Bhatt has clearly stated that "It is true that when I went to the person who was about to give the statement, her father was there, but I removed him from the place. In his cross-examination, Suresh Prakash Bhatt has clearly stated that "It is true that when I went to the person who was about to give the statement, her father was there, but I removed him from the place. People told me that he is under the influence of liquor and is not in a position to speak". This statement given by the Judicial Magistrate clearly proves that the dying declaration is not a tutored one. Therefore, the contention raised by the learned counsel is clearly unacceptable. 21. Furthermore, with the production of Dhanna Lal (D.W.1), Dwarka Lal (D.W.2), Ram Narain (D.W.3), Bajrang Lal (D.W.4), the defense has tried to make out a case of alibi for the appellant and for the other co-accused persons. But in contrast to the dying declaration, there is no reason to believe these witnesses. For, there is no reason for Mrs. Raju Bai to falsely implicate her husband especially when she had come to her in-laws' house only twelve months before the incident. 22. For the reasons stated above, this court does not find any merit in the present appeal. It is, hereby, dismissed. The impugned judgment dated 15.9.2004 is hereby, confirmed.Appeal dismissed. *******