JUDGMENT Hon’ble Kaushal Jayendra Thaker, J.—Heard Mr.Satya Prakash, learned counsel for the appellants and Mr.Rajiv Gupta, Mr.Ramyash Pandey, Mr.Rahul Asthana and Mr.S.N Tripathi, learned A.G.A for the State. 2. The present appellants have preferred this criminal appeal under Section 374(2) of the Criminal Procedure Code against the judgment and order dated 6.12.1983 of conviction and sentence passed by the Session Judge, varanasi in Session Trial No. 197 of 1983 whereby the learned Judge convicted both the appellants under Section 302 I.P.C read with Section 34 and sentenced to undergo imprisonment for life for the aforesaid offence. 2.1 The investigation started after the deceased was admitted in the hospital for being treated for burn injuries. Her dying declaration was recorded on information being sent by the hospital authorities to the next Police Station who informed the Doctor and the Magistrate for recording of the dying declaration of the deceased. After the dying declaration was recorded, the father of the deceased gave the first information on 19.3.1983 to the Police Station in Chetganj, Varanasi. The police after recording the statements and after preparing the Panchnama lodged the charge-sheet before the Court of competent Magistrate. 3. The appeal was filed in 1983 and during this period the appeal stood abated qua appellant No. 2. The accused No. 1 husband who was enlarged on bail did not appear before this Court despite the matter being adjourned from time to time. Therefore, he was summoned by way of summon and he appeared on 12th of April 2016 through his Advocate and the matter was heard, as the record and proceedings were before this Court. 4. The police had filed the charge-sheet before the Court of Judicial Magistrate and the case was committed to the Court of Session Judge as it was triable by Session Court and was numbered as Session Trial Case No. 197 of 1983. 4. The police had filed the charge-sheet before the Court of Judicial Magistrate and the case was committed to the Court of Session Judge as it was triable by Session Court and was numbered as Session Trial Case No. 197 of 1983. The learned Session Judge framed the Charges on 13.7.1983 which were as follows: “That you both, in furtherance on your common intention with each other, on the night falling between March 18 and 19, 83 at about mid night, in our house in Mohalla Nawabganj, P.S Bhalupur, Varanasi committed the murder of Smt.Shiva Kumari by intentionally and or knowingly causing her death by setting fire to her body, and thereby committed an offence punishable under Section 302 I.PC read with Section 34, I.PC and within the cognizance of this Court.” 4.1 The brief facts of the present case as stated in the FIR and the dying declaration read in Unison as they emerge from the record are as follows: The accused No. 1 was alleged to have committed murder of his wife Smt.Shiva Kumari who was aged about 18 years. On between march 18 and 19, 1983 at about midnight, the two accused in furtherance of their common object so as to do away with Smt. Shiva Kumari by sprinkling kerosene oil on her body and set ablazed. It is also reported in the F.I.R that even before she was set on fire, the accused had given physically beating to the deceased by way of shoes and Kalchul big sized cooking spoon and Chappals. 4.2. The prosecution story further runs thus Smt. Shiva Kumari was married to accused No. 1 Ramesh on 18.5.1982, i.e. to say about 10 months before the alleged murder. About 2 or 3 months after the marriage, she came on bida to the accuseds’ house in Mohalla Nawabganj and started living there. Both the accused would however, give her names and call her Kalcoti (black complexioned). They would frequently give her physical beating also. They would taunt her for not bringing a T.V. Set and a steel almirah, too, as wedding gifts. A few days before the murder, when Smt. Shiva Kumari came to her father Gopal’s house which was also situated in Varanasi City itself viz., in Mohalla Sarai Goberdhan, accused No. 1, Ramesh arrived there and demanded a cash sum of Rs. 10,000/- from Gopal. A few days before the murder, when Smt. Shiva Kumari came to her father Gopal’s house which was also situated in Varanasi City itself viz., in Mohalla Sarai Goberdhan, accused No. 1, Ramesh arrived there and demanded a cash sum of Rs. 10,000/- from Gopal. Gopal, who had no means to pay the said amount, complained about it to Ramesh’ brother-in-law (sister’s husband) Raj Kumar who thereupon took Smt. Shiva Kumari alongwith him to her husband’s house. However, on 18.3.1983 when Smt. Shiva Kumar’s father Gopal (P.W.1), alongwith his son Dina Nath and mother Tulsa Devi, came to the accused’s house and requested the latter to send the girl alongwith him, the two accused misbehaved with him and at about 11 p.m. In the night, i.e. to say, about an hour before the murder, turned them out from their house, after hurling a number of abuses to them, before Gopal left the accused’s house, Smt. Shiva Kumari, it is said, complained of accuseds’ behaviour to her and specifically said that she was afraid‘ that probably she would be killed by her husband and mother-in-law. 4.3. Now, it is said that on the fateful night of March 18 and 19, 1983 after Gopal’s departure Smt. Shiva Kumari was beaten and severely burnt inside the house by the two accused, Ramesh and Smt. Prabhawati. No eye-witness was present at the time of this incident of beating and burning, but soon after this incident she was brought out of the house and laid in an injured state at the Chabutara of the house. On hearing her shrieks and cries, some neighbours, viz., Ganesh (P.W.4), Madan Lal and Shashi Tripathi arrived at this Chabutara and on their enquiry they were told by her that she had been beaten and burnt by her husband and mother-in-law. Smt. Prabhawati (accused No. 2) who was present at the place gave out a different story stating that Shiva Kumari had herself set fire to her clothes and got burnt. 4.4. Soon, on the advice of some neighbors, the injured Smt. Shiva Kumari was taken by one Badri Prasad to the S.S.P.G. Hospital, Varanasi where at 1.10 a.m. She was examined for her injures and admitted for medical aid. 4.5. The father PW 1 who heard about the incident rushed to the hospital where the deceased was being treated. 4.4. Soon, on the advice of some neighbors, the injured Smt. Shiva Kumari was taken by one Badri Prasad to the S.S.P.G. Hospital, Varanasi where at 1.10 a.m. She was examined for her injures and admitted for medical aid. 4.5. The father PW 1 who heard about the incident rushed to the hospital where the deceased was being treated. On questioning his daughter he was told that she had been beaten and burnt by her husband and and mother-in-law. The Police Station Kotwali Varanasi received a memo (Copy Ex.Kha 2) from the S.S.P.G Hospital Varanasi informing the arrival of Smt.Shiva Kumari in the said Hospital. Kotwali Police passed on this memo to Police Station Bhelupur Varanasi. i.e the matter related to the territorial jurisdiction to that Police Station. Recording of dying declaration of Shiva Kumari was entrusted to a Magistrate of the Ist Class, the S.I reached S.S.P.G Hospital, Varanasi and recorded the statement of Shiva Kumari between 11.15 a.m. and 12 noon of the same day, the dying declaration of Smt.Shiva Kumar was recorded that she was set ablaze by both the accused, at the same hospital by one Shri Murli Dhar Dubey, Additional City Magistrate, Varanasi who has been examined as PW 8 and before whom also the statement was recorded, that she was set ablaze by both the accused, has certified that she was in her full consciousness both mentally as well as physically and she possessed all sense to make a statement in which she disclosed the names of both the husband and the mother-in-law to have perpetuated the murder by setting her ablaze. After all these, PW 1 father of the deceased lodged F.I.R which is at Exhibitt-1 at Police Station Bhelupur naming the accused Ramesh and Smt. Prabhawati for murder. On the basis of this F.I.R, the Police registered commission vide Chik F.I.R (Ex.Ka 4) and P.W 7 S.I Markandey Singh was entrusted with the investigation. On 19.3.1983, Smt.Shiva Kumari is said to have succumbed to the injuries at S.S.P.G Hospital. An inquest on her dead body was performed on the very same day between 3.45 and 4.45 P.M which was performed by one S.I Markandey Singh. The post-mortem of Smt.Shiva Kumari was performed at B.H.U mortuary by Dr.C.B.Tripathi on 20.3.1983 at 1.30 p.m. 4.6. Heard all the learned Advocates for the respective parties. 5. An inquest on her dead body was performed on the very same day between 3.45 and 4.45 P.M which was performed by one S.I Markandey Singh. The post-mortem of Smt.Shiva Kumari was performed at B.H.U mortuary by Dr.C.B.Tripathi on 20.3.1983 at 1.30 p.m. 4.6. Heard all the learned Advocates for the respective parties. 5. The accused pleaded not guilty and therefore, the prosecution examined in all eight witnesses and all witnesses have testified in favour of the prosecution. 6. None of them have turned hostile or have been declared hostile. The accused also examined the Doctor as his defence witness No. 1 so as to prove that the theory of death by murder was false and it was an accidental death. The prosecution have relied on certain oral as well as documentary evidence which are as follows. Heard in order to bring the home the charge levelled against the appellants, the prosecution has examined the following witnesses. The record shows that the evidences of the witnesses have been recorded without there being an exhibit to their evidences and therefore, the same is narrated seriatim only. : 1. PW-1 Gopal 2. PW-2Dr. C.B. Tripathi 3. PW-3 Dr. M.N. Chaturvedi 4. PW-4 Sri Ganesh 5. PW-5 Dahari Dubey 6. PW-6 Raghuraj Singh 7. PW-7 Markandya Singh 8. PW-8 Murlidhar Dubey 9. Witness of accused DW-1 Dr. T.B. Rai 7. The prosecution produced the following documents in support of its case and tried to collaborate and ring-home the charge with which the accused were alleged to have committed the offense. Documents: 1. FIR Ex.4 2. Written report Ex-1 3. Dying declaration of Smt. Shiva Kumari Ex-Ka-3 4. Memo of inspection and recovery memo Ash, pieces of cloth, bangle,etc Ex.K-14 5. Injury report of Smt. Shiva Kumari Ex-Kha-1 6. P.M. Examination report Ex. Ka-2 8. The medical report, the post-mortem report and the autopsy report confirms the death to be by burning. This has not been doubted neither is disputed by the defence and therefore, the finding of the learned Judge that it was a homicidal death is proved as the burns injuries coincide with the time of occurrence and on that day incident took place at about mid night. Hence the finding that it was homicidal death is confirmed. 9. PW-1, Gopal, father of the deceased gave evidence about the alleged motive for the crime in terms as stated earlier. Hence the finding that it was homicidal death is confirmed. 9. PW-1, Gopal, father of the deceased gave evidence about the alleged motive for the crime in terms as stated earlier. He further testified that on the morning of 1983 when he went to the S.S.P.G Hospital Varanasi and interrogated the injured Smt.Shiva Kumari about her injuries, he was told by her that she had been beaten and set fire by her husband Ramesh and mother-in-law Smt.Prabhawati. PW. 1 Gopal proved his F.I.R Ex.Ka 1 also. 10. P.W 4 Ganesh also proved the alleged oral dying declaration made to him by Smt. Shiva Kumari at the Chabutara of the accuseds’ house in which she stated that she had been beaten and burnt by her mother-in-law. 11. After the evidence of the prosecution was adduced and the statements of the accused were recorded under Section 373 of the Cr.P.C and the learned Judge on 6.12.1983 convicted and sentenced the accused to undergo imprisonment for life. On appeal they were enlarged on bail during the pendency of the appeal. 12. It is submitted by the learned counsel for the appellant that there are discrepancies in the certificate given by the Magistrate and the Doctor. The Doctor has written that she was in fit state of mind to give the statement. 13. The second submission of the learned counsel for the appellant is that there were 90% burns injuries and she could not have opened her lips to give dying declaration. The sanctity of dying declaration is also not maintained as the I.O in his oral testimony in the cross-examination accepted the fact that when he took dying declaration, other persons were present at the place in the hospital. 14. It is further submitted that the F.I.R and also dying declaration both are antedated and are so adjusted that it may appear that accused caused the death. 15. Learned counsel for the appellant has relied on the deposition of DW 1 Dr.T.B.Rai that the alleged injuries could occur while preparing food and therefore, the theory of accidental death cannot be ruled out from the facts and circumstances of the case. 16. 15. Learned counsel for the appellant has relied on the deposition of DW 1 Dr.T.B.Rai that the alleged injuries could occur while preparing food and therefore, the theory of accidental death cannot be ruled out from the facts and circumstances of the case. 16. The Apex Court in the case of Khushal Rao v. State of Bombay and State of U.P. v. Ram Sagar Yadav, reported and discussed in the case of Krishan v. State of Haryana, (2013) 3 SCC 280 , the principles are enunciated in paragraph 19 also would require reference, and therefore, from the aforesaid decisions, it would emerge that it is not an absolute principle of law that dying declaration cannot form the sole basis of conviction of an accused. If it fulfills the test that such dying declaration is so reliable and has been recorded in accordance with law establish, practice and principles, we would now therefore, deal with the testimony and the injuries synchronize so as to test the judgment of the Sessions Judge convicting the accused under Section 302 of IPC. 17. The main ground of appeal as which was urged in the memo of appeal, is that the conviction and the sentence of the appellant is against the weigh of evidence on record and is bad in the eye of law and the sentence is too severe; It is a case of circumstantial evidence and that of dying declaration, there is no eye-witness of the case. It is an admitted fact as it emerges from the record and the fact of finding recorded by the authority i.e learned Trial Judge who has held that the house where the incident occurred was inhabited by three persons, namely the deceased and the two accused. However, the dearth of direct evidence will not impel on the worth of the prosecution evidence when there was a dying declaration of the deceased made before PW-4, PW-1, PW-7 and PW-8. There are two written dying declarations. The defence could not point out any discrepancies which would persuade this Court to take a different view and dent the finding of fact that the dying declaration is bad of the decision. 18. There are two written dying declarations. The defence could not point out any discrepancies which would persuade this Court to take a different view and dent the finding of fact that the dying declaration is bad of the decision. 18. The learned counsel for the appellants has relied on the decisions in Mannulal Sahu and another v. State of M.P., (2005) 10 SCC 259 and submitted that as there is variance in dying declarations before different persons, the same cannot be made basis for conviction. In the decision the Apex Court has laid down the principles that the dying declaration where first declaration recorded on the date of occurrence where accidental fire was disclosed and 2nd and 3rd subsequently recorded dying declarations showing the different story, conviction can be based on such dying declarations. The Apex Court in paragraph 3 has held as- “3. In the present case, there is no direct evidence. There were three dying declarations before the Court. The first dying declaration was recorded by an Executive Magistrate (CW 1) on the date of occurrence itself i.e. on 2.12.1991 at 9.00 p.m. in which, case of accidental fire has been disclosed. The second dying declaration was recorded on the next day i.e. on 3.12.1991 at 10.20 a.m. by the treating doctor (CW 5) which also disclosed a case of accidental fire. The third dying declaration was also recorded on 3.12.1991 at 8.30 p.m., after more than 24 hours of the occurrence which is said to have taken place on 2.12.1991 between 2.00 p.m. And 4.00 p.m. This dying declaration (Ext. P-4) has been recorded by the Tahsildar which runs into more than two pages and wherein the entire history from the date of marriage till the date of occurrence has been given in great detail and it was stated that the accused persons poured kerosene oil on the victim and set her on fire. It is not possible to believe such a dying declaration where there is so much narration of facts with meticulous details of everything by a dying person. The said dying declaration said to have been recorded by the Tahsildar is highly doubtful and in our view is an afterthought especially in view of the fact that according to the earlier two dying declarations it was a case of accidental fire and no case for torture was at all made out. The said dying declaration said to have been recorded by the Tahsildar is highly doubtful and in our view is an afterthought especially in view of the fact that according to the earlier two dying declarations it was a case of accidental fire and no case for torture was at all made out. This being the position, we are of the view that it is not safe to place reliance upon the dying declaration recorded by the Tahsildar, as such the prosecution has failed to prove its case beyond reasonable doubt and the High Court was not justified in upholding their convictions. “ 19. In our case, except Dr.T.B.Rai who is DW-1 the dying declaration oral as well as written are absolutely consistent. It is only the oral version of DW-1 that she has said that it was an accidental burn. This belies the theories from the medical evidence produced by the prosecution which has withstood the cross-examination and negatived the theory of accidental or suicidal death and therefore, this judgment would not come in the aid to the accused. 20. Reliance is placed on Kamalakar Nandram Bhavsar and others v. State of Maharashtra, (2004) 10 SCC 192, it is submitted that in the said case death had occurred just within ½ an hour of the recording of the dying declaration. 21. In our case, the dying declaration was made before Doctor M.N.Chaturvedi, the father P.W-1 and also Magistrate, therefore, the said decision could not help the accused as the facts of the present case are clearly distinguishable and difference. In our case, she did not die within ½ an hour after she made dying declaration, the document in this case is well supported by the ocular version of the Magistrate as has been discussed herein above. There was ill treatment and involvement of the husband is well established. 22. The decision on which reliance is placed namely Kans Raj v. State of Punjab and others, (2000) 5 SCC 207 , would not help the accused as in the said case, the conviction of the husband was confirmed. The said decision cannot apply to the facts of this case as the incident in our case occurred before insertion of Section 498-A. In the facts of our case, the deceased was done to death and therefore, the said judgment in Kans Raj (Supra) would not apply. The said decision cannot apply to the facts of this case as the incident in our case occurred before insertion of Section 498-A. In the facts of our case, the deceased was done to death and therefore, the said judgment in Kans Raj (Supra) would not apply. In this case, death was caused other wise, well under normal circumstances is well established as she was ill treated, she had complained to her parents time and again. 23. In Sher Singh and another v. State of Punjab, (2008) 4 SCC 265 , on the contrary favour the prosecution as the doctor has certified and his credibility during the Court proceedings is also well established. Merely the dying declaration was made by a person with 90% burn will not give the benefit of doubt to the accused. 24. It is proved as submitted by learned AGA that there were 90% burn on the body but the Doctor has opined that she was in fit state of mind to depose, therefore, also this Court should not interfere with the judgment of the learned Sessions Judge which is well reasoned judgment. Findings show that the guilt of the accused has been proved, the motive is proved, the burn injuries are proved and the young lady, who was only 18 years old and had pregnancy of about 3 months had been done to death is corroborated by PW-1, PW-2 Medical Officer as well as the Executive Magistrate who had recorded the dying declaration. 25. The learned AGA has given written submissions where he has made his submissions, tabulated in paragraph 1 to 15. In paragraph 14, it is submitted as follows which is most relevant. The entire written submissions are not reproduced as we have discussed and considered all the submissions made by the counsels. “14. That from perusal of the statement recorded under Section 313 Cr.P.C of the appellant Ramesh @ Raja Babu it is borne out that he has stated that Shiv Kumari has committed suicide by setting herself on fire and on the basis of suspicion he has been nominated as the accused. “14. That from perusal of the statement recorded under Section 313 Cr.P.C of the appellant Ramesh @ Raja Babu it is borne out that he has stated that Shiv Kumari has committed suicide by setting herself on fire and on the basis of suspicion he has been nominated as the accused. He has also produced a defence witness and from the from the said evidence the complicity of the applicant is further established as from the said evidence and circumstances it is absolutely clear that the present case is not a case of suicide but is a clear case of homicide. Even for the sake of argument no reason whatsoever has also been disclosed for the commission of suicide. Moreover in view of the fact that the lady was pregnant lady and the chances of committing suicide is very bleak rather ridiculous.” 26. Having heard the learned counsels for the parties, whether this Court should concur with the learned Session Judge who has considered it safe to pass the conviction of the accused on the basis of dying declaration which is main piece of evidence against the accused. 27. The answer to all the submissions made by the learned counsel for the appellants are in the negative. Reliance can be safely placed on the decision of the Apex Court firstly, whether as a principle of law, a dying declaration can form the sole basis for conviction of an accused or not. Secondly, whether the facts of the present case fully satisfy the settled principles and it would be safe to convict the accused No. 1 Ramesh alias Raja Babu Krishan solely on the basis of the dying declaration of the deceased. 28. The learned trial Judge has relied on certain decisions which are as follows and has recorded his finding which is verbatimly reproduced. These decisions lay down the principle even in those days and they are good law even today and in the light of these decisions, finding of facts and the factual scenario as it emerges the conviction, cannot be found fault with. “It is well-settled that if the Court is satisfied on a close scrutiny of a dying declaration or declarations that they are truthful, it is open to it to convict the accused on their basis without any independent corroboration. “It is well-settled that if the Court is satisfied on a close scrutiny of a dying declaration or declarations that they are truthful, it is open to it to convict the accused on their basis without any independent corroboration. (See Jaswant Singh v. State (Delhi Administration), 1978 Cr LJ (SC) 1869; Harbans Singh and another v. State of Punjab, AIR 1962 SC 439 and Khusal Rao v. State of Bombay, AIR 1958 SC 22 , in this connection). 29. The Additional City Magistrate during the course of preliminary inquiry on the receipt of the hospital memo regarding burning of the deceased, even in the cross-examination, he recorded the statement after receipt of FIR of the crime at about 12.15 noon. However, this was in consonance with the recording by one Murliddhar Dubey, P.W 8 at 12.00 noon, shows that dying declaration could not be believed. PW 1 Gopal had also unequivocally incorporated in the F.I.R that he was conveyed about the incident by his daughter. The learned Sessions Judge on facts has held as under: “However, there seems to be no good reason to reject as untruthful either the oral dying declaration alleged to have been made by Smt. Shiva Kumari to her father Gopal (P.W 1) at the S.S.P.G Hospital, Varanasi at about 9 a.m. On 19.3.1983 or her dying declaration (Ex.Ka 3) which is said to have been recorded the same day at about 12 a.m. ((noon) at the said Hispital by P.W 8 Shri Murlidhar Duby, Executive Magistrate." 30. Therefore, it cannot be said that the findings of the learned Trial Judge are perverse or the dying declarations are antedated. 31. The authenticity of the two dying declarations aforesaid, viz., the oral dying declaration made by Smt. Shiva Kumari to P.W.1 Gopal and the dying declaration, Ex. Ka 3, as recorded by the Magistrate, was also assailed by the learned counsel for the defence on the basis of the Hospital Memo, Ex. Kha 2, sent by D.W. 1 Dr. T.B. Rai to P.S. Kotwali, Varanasi immediately after her admission at the S.S.P.G. Hospital wherein, as indicated earlier, it was stated that, “It is said that Smt. Shiv aKumari died while cooking meal”. My attention was invited in this connection to the evidence of D.W. 1 Dr. Kha 2, sent by D.W. 1 Dr. T.B. Rai to P.S. Kotwali, Varanasi immediately after her admission at the S.S.P.G. Hospital wherein, as indicated earlier, it was stated that, “It is said that Smt. Shiv aKumari died while cooking meal”. My attention was invited in this connection to the evidence of D.W. 1 Dr. T.B. Rai in his examination-in-chief that he should have made the said endorsement in his memo after inquiring the facts from Smt. Shiva Kumari herself. This evidence of Dr. T.B. Rai which was stoutly assailed in cross-examination cannot, however, be easily accepted as correct. Dr. TG.B. Rai admitted in cross-examination that when Smt. Shiva Kumari came to the Hospital, she was very restless (Kaafi chhatpata rahee thee). It is highly improbable that during such restleness of hers, he would have been able to enquire from her personally about the cause of authorship of her burn injuries. In any case, it would seem that like a prudent man Dr.T.B.Rai would have, in that event, recorded in his memo, Ex.Kha 2, that Smt.Shiva Kumari had herself told or stated to him that she had been burnt while cooking meal. He could not in that case have rested content by saying, as he did, that “ It is said that she was burnt while cooking meal”. Accordingly, it appears to me that he did not make the endorsement concerned about the cause of Smt. Shiva Kumari’s burn injury in his memo, Ex.Kha 2, on the basis of any statement or declaration made to him by the injured Smt.Shiva Kumari herself but probably on some other basis, say, on a declaration or averment of facts as given out to him by Badri and or others who accompanied Smt. Shiva Kumari at the time. The learned Judge has held and believed that the evidence of Dr.T.B.Rai or his memo, Ex.Kha 2, cannot successfully assail the veracity of the dying declarations made by Smt. Shiva Kumari to P.W 1 Gopal and the learned Executive Magistrate. 32. Both the above said dying declarations made by Smt.Shiva Kumari to Gopal and the Magistrate are fully consistent and mutually corroborative also of each other on all material points. No discrepancy or contradiction could be shown or pointed by the learned defence counsel. 33. Therefore, it cannot be said that the findings of the learned Trial Judge are perverse or the dying declarations are antedated. 34. No discrepancy or contradiction could be shown or pointed by the learned defence counsel. 33. Therefore, it cannot be said that the findings of the learned Trial Judge are perverse or the dying declarations are antedated. 34. The dying declarations would seem to have been made by the deceased to the persons concerned without any undue delay also. She was admitted at the S.S.P.G Hospital at 1.10 a.m.. In the night of March 18 and 19, 1983. There is nothing on record to show that there were any visitors to her before P.W 1 Gopal himself reached the place alongwith same of his neighbors in the morning at about 9 a.m. If so, the oral l dying declaration made by her to P.W 1 Gopal was evidently at the earliest opportunity and without any undue delay, whatsoever. No magistrate would also seem to have visited Smt.Shiva Kumari before 12 noon on 19.3.1983 when Shri Murlidhar Dubey reached there and recorded her dying declaration, Ex.Ka 3. if so, her dying declaration as recorded by Shri Murlidhar Dubey, Magistrate cannot also be deemed to be any delayed affair at all. 35. The learned Judge while considering the principles on which the dying declaration had to be believed has elaborately discussed about the corroboration and truthful worthiness. “if a corroboration was necessary, then I have already pointed out that medical evidence, the evidence relating to motive and the evidence regarding the recovery of broken churis, etc. from the first floor of the accuses’ house together with the attending facts and circumstances of the case and the fact that the theory of suicide by Smt.Shiva Kumar stands rules out in the face of medical evidence on record, are sufficient to sustain the accuseds’ conviction for her murder." 36. Having considered all these facts and the decisions cited above, we are of the considered opinion that dying declaration was voluntarily made which was credible and on which after examining the demour of the witnesses, the Trial Judge has convicted the accused and therefore, also we do not like to disturb the finding of facts. The accused No. 1. had developed dislike for Shiva Kumari as is evident from her dying declaration also. The accused No. 1. had developed dislike for Shiva Kumari as is evident from her dying declaration also. Therefore, accused Ramesh alias Raja Babu on the basis of dying declaration show that the accused is well physically beating to lady Shiva Kumari and then set her ablaze by pouring kerosene oil over her body. Therefore, as the matter has abated against the accused No. 2, we do not think that anything requires further but there was an element of Section 34 involved. The learned Judge cannot be found false to have convicted the accused. 37. There is no valid reason or justifiable ground to interfere with the impugned judgement and order of conviction and sentence. Sentence is maintained. The accused Ramesh alias Raja Babu is granted eight weeks’ time to surrender before the authorities concerned failing which the authorities concerned shall take appropriate action to see that the accused served out his term. It goes without saying that the period of sentence spent as under trial prisoner before he was enlarged on bail shall be considered for counting the sentence. 38. In the result, this appeal is dismissed. The impugned judgement and order dated 6.12.1983 of conviction and sentence passed by the learned Sessions Judge, Varanasi in Session Trail No. 197 of 1983 is confirmed.