Judgment : (Delivered by Naheed Ara Moonis.J.) The instant appeal has been filed on behalf of the appellant challenging the judgment and order dated 21.2.1985 passed by the Additional Sessions Judge Moradabad whereby the appellant has been convicted and sentenced to undergo imprisonment for life in Sessions Trial No. 75 of 1984 under section 302 IPC Police Station Katghar District Mordabad. The emanation of facts as set up by the prosecution in a short conspectus is that Balbir lodged a first information report on 5.11.1983 at 6.30 p.m. divulging the facts that his sister Madhu was married with Puran, the sole appellant one & half year earlier to the incident. Raj Bahadur who is the relative of the complainant resident of Katghar came to his house and unfolded that his sister had sustained burn injuries and was admitted in the District hospital Moradabad in a precarious condition. On getting the shocking news, the complainant and his brother Ashok Kumar proceeded to District Hospital Moradabad to know her condition. On reaching at the Hospital, their sister informed him that her husband Puran (appellant) had thrashed in the night barbarously and brutally in an inebriated condition and in the morning there was exchange of heated words between them on the issue of consuming liquor. The appellant could not squeeze his anger and ire merely by thrashing the victim. He poured kerosene oil setting her ablaze as a consequence of which the house was also burnt. On the shriek and shrill of the victim, folk of the locality came on the spot. The complainant further stated that the condition of his sister was deteriorating on account of acute burn injuries hence appropriate action be taken. On the basis of the said report, Ext. Ka.1,Ex.Ka.4 FIR was prepared and the case was registered against the appellant under section 307 IPC vide Case Crime No. 478 of 1983 in G.D. On registration of the first information report, investigating officer swung into action and recorded the statement of the complainant Balbir and Ashok Kumar, real brother of the victim, Dinesh and Hari Om, the Sardhoo of the accused appellant which were exhibited as Ex.Ka.7.8,9 & 10. On 5.11.1983 in the evening at about 5.10 p.m., dying declaration of the victim was recorded by V.P.Sharma Addl.City Magistrate Moradabad in the presence of Dr. On 5.11.1983 in the evening at about 5.10 p.m., dying declaration of the victim was recorded by V.P.Sharma Addl.City Magistrate Moradabad in the presence of Dr. Y.C. Gupta who had declared her in a fit state of mind to give dying declaration. The victim had unfolded that today in the morning her husband had brutally assaulted and had poured kerosene oil setting her ablaze. She had also divulged that there was fiery exchange of words on the issue of consuming liquor. The appellant was in an inebriated state and thrashed her in the previous night. The victim had also stated that her in laws who were living in the lower portion had shifted to Delhi for the last two months. In the upper portion of the house her Jeth Bhagwan Das was living. She was living in one room. The victim used to cook in the same room. The kerosene oil was in the container. The appellant had bolted the door after setting the victim ablaze and shouted that his wife had set herself ablaze. On the hue and cry, her Jeth and Jethani came on the spot. They tried to extinguish the fire. The appellant himself began to extinguish the fire on seeing other persons. Subsequent thereto she became unconscious. The victim regained consciousness in the hospital. The rift between the victim and the appellant aggravated on the issue of liquor as the appellant was habitual drunkard and the victim was always trying to restrict him from taking liquor. The appellant was confronting the allegation of taking liquor by telling her lie but the quarrel between the appellant and the victim could not be pacified. The appellant was highly infuriated and set the victim ablaze after pouring kerosene oil. The victim did not permit the appellant to enter inside the room in an inebriated state. The appellant slept in the room down stair in the night. When the victim opened the door in the morning, the appellant came inside the room and on account of intensive infuriation and ire, the appellant took the drastic step of setting her ablaze. A number of persons including the females of the locality came at the place of incident on the alarm and screaming of the victim. When the victim opened the door in the morning, the appellant came inside the room and on account of intensive infuriation and ire, the appellant took the drastic step of setting her ablaze. A number of persons including the females of the locality came at the place of incident on the alarm and screaming of the victim. On the aforesaid statement of the victim, V.P.Sharma, the Additional City Magistrate had put a note that the thumb of the victim was not being straight hence the thumb impression of right hand was taken. During the course of investigation, the victim died in the hospital on 9.11.1983 at 10.05 p.m. on account of the severe burn injuries. The investigating officer reached at the hospital on getting information regarding the sad demise of the victim and conducted the inquest. After carrying out necessary formalities, the corpse was sealed and was handed over to Dinesh Kumar and Madhur Murari along with requisite papers vide Ext.Ka.14 & 15. The autopsy of the victim Smt. Madhu was conducted on 10.11.1983 at 5.10 p.m. by doctor K.Khan in V.Z.Hospital Moradabad. The doctor had found the face of the deceased disfigured due to burn injuries. The body of the deceased was found to be burnt upto 90%. According to the doctor, the death of the victim was resulted on account of shock due to burn injuries The case was converted under section 302 IPC from section 307 IPC vide G.D. No. 52 dated 9.11.1983 at 11.45 p.m. The investigating officer Raghunath Prasad, S.I.who conducted the inquest report, recorded the statement of the witnesses, prepared the site plan and sent the corpse to mortuary for autopsy was transferred and the investigation was taken up by Inspector T.C.Tyagi. The investigating officer collected credible and clinching materials showing the complicity of the appellant in the commission of the said crime. He submitted the charge sheet against the appellant which was proved by him as Ex.Ka.3. The charge sheet was submitted under section 302 IPC finding involvement of the appellant in the commission of the said offence. The case was committed to the Court of Sessions for framing the charges. The Xth Addl.. Sessions Judge Moradabad framed the charge against the appellant under sections 302 IPC which was read over and explained to the appellant in Hindi. The case was committed to the Court of Sessions for framing the charges. The Xth Addl.. Sessions Judge Moradabad framed the charge against the appellant under sections 302 IPC which was read over and explained to the appellant in Hindi. The accused appellant pleaded not guilty to the charge framed against him under section 302 IPC and claimed to be tried. The prosecution has examined nine witnesses out of whom four witnesses were witnesses of fact namely Balvir Saran (P.W.1), Ashok Kumar (P.W.2), Dinesh (P.W.3) and Hari Om P.W.4. The formal witnesses examined by the prosecution were namely V.P.Sharma, Addl. City Magistrate, Moradabad P.W.5 who recorded dying declaration of the victim Smt. Madhu. Dinesh Kumar constable who was entrusted the corpse of the deceased for taking to the mortuary was examined as P.W.6. T.C.Tyagi Inspector who had conducted the investigation and submitted the charge sheet was examined as P.W.7. Raghu Nath Prasad S.I. who conducted the investigation, recorded the statement of the witnesses, inspected the site and prepared the site plan (Ex.Ka.11) and the inquest report was examined as P.W.8. Dr. Y.C.Gupta who was posted as Medical Officer at the District Hospital Moradabad on 5.11.1983 and had examined the victim Madhu prior to recording her dying declaration in the presence of the Magistrate V.P.Sharma (P.W.5) and proved his certificate was examined as P.W.9. The statement of the appellant under section 313 Cr.P.C. was recorded wherein he showed his ignorance by pleading innocence It was next stated by him that he has been implicated in the present case due to personal grudge and animosity. However, the appellant had not put forth any convincing material in support of his defence. Learned trial court recorded conviction of the appellant relying upon the dying declaration of the victim and held that the prosecution has proved the guilt of the appellant beyond reasonable doubt. Heard Sri R.R.Singh, learned counsel for the appellant and Sri Rajeev Gupta, learned AGA appearing on behalf of State and have been taken through the record. It is submitted by the learned counsel for the appellant that the trial court has committed manifest error in convicting the appellant on the solitary evidence of dying declaration which cannot be made a basis for conviction. There are various infirmities and vulnerabilities in the so-called dying declaration of the victim. It is submitted by the learned counsel for the appellant that the trial court has committed manifest error in convicting the appellant on the solitary evidence of dying declaration which cannot be made a basis for conviction. There are various infirmities and vulnerabilities in the so-called dying declaration of the victim. While recording the dying declaration, the doctor has not certified that the victim was in a position to speak, sensing and seeing the manner of the incident. The victim had sustained 90% burn injuries and there is no tangible evidence on the record confirming that the victim was in a position to speak in the manner in which she gave her statement. In the absence of any certificate from the doctor, the alleged dying declaration cannot be the sole basis for conviction. It is evident that the doctor has not appended his certificate that the victim was in a fit state of mind to depose. There is no motive on the part of the appellant to have poured kerosene oil on the body of the victim and set her ablaze. The alleged dying declaration of the victim was not found in order and reliable. No other person had attested the statement alleged to have been made by the injured victim before the Magistrate. The prosecution had further unfolded that one Raj Bahadur had informed the brother of the victim that his sister was admitted in the District Hospital in a burnt condition who could be a trustworthy and reliable witness, was not examined by the prosecution. In case the victim had sustained 90% burns then she could not be in a conscious statement of mind divulging about the time, place and the manner which is not consistent with the prosecution version. The appellant himself was burnt in the process of dousing the fire so as to save the life of his wife. The victim had set herself ablaze for the reasons best known to her and on her shriek and wailing, the appellant made his best effort to save her life by extinguishing the fire and admitting her in the hospital which has not been given due weight and considered by the learned trial judge. Further more all the witnesses of fact have turned hostile. They have given affidavit disowning the prosecution case and admitted that she had committed suicide. Further more all the witnesses of fact have turned hostile. They have given affidavit disowning the prosecution case and admitted that she had committed suicide. None of the prosecution witnesses has supported the case and the conviction of the appellant merely on the basis of dying declaration before the Magistrate that she was mentally fit to make the statement and the same having not been corroborated by sworn testimony of the complainant himself cannot be made the sole basis of conviction. There was no natural witness at the relevant time to claim that he had seen the appellant assaulting the victim and pouring the kerosene oil to set her ablaze. The learned trial judge has mis-appreciated and misread the entire evidence without delving into depth whether the victim was fully possessed of the sense to understand the implication of her statement and whether the same was made without any exterior consideration whereas the alleged dying declaration reflects entirely a false version. The accused appellant did not have any opportunity to test its veracity and verity by way of cross examination and so it has to be scrutinized thoroughly so as to sift the grain from the chaff or the truth from the falsehood. The appellant had remained in jail during trial for more than two years. The life and liberty of the appellant has been curtailed merely on the dint of suspicion while there is no credible and ocular testimony to support the prosecution case. There is material inconsistency and conflict in the medical examination and the statement of the witnesses which creates serious doubt about the manner of occurrence and its credibility and verity. The learned trial judge has drawn wrong inference about the complicity of the appellant in the commission of the said occurrence solely relying upon the testimony of the doctor and the Magistrate. There is no incriminating material showing the complicity of the appellant hence the conviction and the sentence of the appellant awarded by the trial court is patently erroneous and may be set aside. Per contra learned AGA opposed the contention of the learned counsel for the appellant and contended that the victim had died at her matrimonial house. The onus of proof lies upon the husband (appellant) to substantiate under what circumstances the victim sustained fatal burn injuries. The first information report has been lodged in a natural and unbleached manner. Per contra learned AGA opposed the contention of the learned counsel for the appellant and contended that the victim had died at her matrimonial house. The onus of proof lies upon the husband (appellant) to substantiate under what circumstances the victim sustained fatal burn injuries. The first information report has been lodged in a natural and unbleached manner. There is no exaggeration in the prosecution case. The appellant is the husband of the victim and the victim had divulged the name of the appellant in her dying declaration before the Magistrate. The doctor who had examined the victim prior to her statement recorded his satisfaction that she was in a fit state of mind to depose. Even if the prosecution witnesses who are brothers of the victim and close relative of the appellant have turned hostile will not overshadow the entire prosecution case. The formal witnesses who recorded the dying declaration of the victim had no animosity to depose against the appellant so as to entangle him falsely in the present case. There is no material on record to discredit the dying declaration of the victim recorded by V.P.Sharma, Magistrate. It is conspicuously clear that the victim Madhu was in a perceptible state of mind to give statement and had narrated the prosecution case in a very natural manner. The Magistrate who had recorded the dying declaration of the victim had obtained certificate of the doctor on duty that the victim was in a conscious state of mind to give her statement. The victim was admitted in the hospital and the witnesses who have turned hostile had supported the prosecution case that the victim was admitted in burn condition and had conversed with them. The slight aberration or deviation in the prosecution version will not exculpate the appellant from his accountability as the victim had sustained fatal burn injuries at her matrimonial house. V.P.Sharma (P.W.5) recorded the dying declaration of the victim in the presence of Dr. Y.C.Gupta (P.W.9) Medical Officer. The victim had unfolded the mischievous deed of her husband (the appellant) accusing him for setting her ablaze by pouring kerosene oil on her. There was no congenial term between the appellant and the victim as the appellant was habitual of consuming liquor and the victim was resisting him from indulging in the foul practice of consuming liquor. The victim had unfolded the mischievous deed of her husband (the appellant) accusing him for setting her ablaze by pouring kerosene oil on her. There was no congenial term between the appellant and the victim as the appellant was habitual of consuming liquor and the victim was resisting him from indulging in the foul practice of consuming liquor. The appellant was highly irritated and infuriated on account of resistance rendered by the victim in his recreation of consuming liquor and had concerted his mind to eliminate her by setting her ablaze after pouring kerosene oil kept in a container in the room. On account of severe and fatal burn injuries, the victim shrieked and wailed loudly attracting the neighbours. There is nothing on record to corroborate that the victim had committed suicide. The possibility of suicide had not been proved by any cogent and convincing material showing that the door was bolted from inside. On getting the information about the burn injuries of the victim, Balbir (P.W.1) went to see his sister in the hospital. The victim had narrated the entire incident in a very natural and unbleached manner accusing the appellant for setting her ablaze. The victim will not make tutored statement implicating her husband at the crucial moment when she was grappling with life. Learned AGA has placed reliance upon a judgment of Hon'ble Apex Court in re State of U.P. Vs. Ramesh Prasad Mishra & others AIR 1996 SC 2766 held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. This has been followed and re-iterated in many other decision enunciated by the Hon'ble Apex Court. The statement of prosecution witnesses of fact cannot be rejected in its entirety merely because the prosecution chose to treat them as hostile and not cross examined them. The statement of such witnesses cannot be treated as obliterated or washed off the prosecution case altogether. Their statement may be accepted to the extent so far as their version is found to be acceptable on a careful scrutiny. The statement of such witnesses cannot be treated as obliterated or washed off the prosecution case altogether. Their statement may be accepted to the extent so far as their version is found to be acceptable on a careful scrutiny. The statement of the hostile witnesses cannot be discarded as a whole as the relevant part supporting the prosecution case is admissible under the law. The appellant has not put forth any satisfactory explanation to the incriminating circumstances put in his examination under section 313 Cr.P.C. The alleged incident had taken place inside the matrimonial house. The appellant had disowned all the questions showing his ignorance with regard to the alleged incident and could not induce any plausible explanation which prompted the victim to commit suicide. The trial court dealt with all the incriminating materials whereby the appellant has been sentenced and convicted finding him guilty beyond all reasonable doubt. Having considered the rival submission advanced by the learned counsel for the parties, this Court is of the opinion that the dying declaration of the victim has been tested on the anvil of judicial scrutiny. This fact cannot be over sighted that the incident had taken place within a short span of marriage inside the matrimonial house and the victim had sustained fatal burn injuries. Even if the defence theory is accepted, there is nothing on record to corroborate that the appellant had made any attempt to approach to the authorities concerned to report with regard to the alleged incident of suicide which itself tilts towards gravamen of the offence showing the complicity of the appellant. There is no justification to disbelieve the statement of P.W.1Balveer who had lodged the report on the basis of the enquiry made by him from his sister as to how she had sustained burn injuries. The sister of the complainant had narrated the incident in a very natural and unbleached manner that on account of being highly inebriated state on the previous night, her husband (appellant) had thrashed her brutally and in the morning, the appellant could not pacify his ire and indignation and on the exchange of some heated words, the victim was again beaten badly by him and out of intensive anger and wrath of the appellant poured kerosene oil and set her ablaze. When the victim was burning, her cries and wailing attracted the neighbourhood. When the victim was burning, her cries and wailing attracted the neighbourhood. According to the first information report, these words uttered by the complainant's sister is admissible under section 6 of Indian Evidence Act which is described as res-gestae evidence. The utterances made by the deceased on the verge of her death is by itself a guarantee of truth connecting the circumstances leading to her death. It is conspicuous from the record that the appellant had fled from the scene of occurrence and was arrested from his house in the interregnum night of 22/23.11.1983 at about 1.45 A.M. The act of disowning or ignorance on the part of the accused appellant would not exculpate him from the charges. The appellant had shown ignorance of all the incriminating circumstances in his statement under section 313 Cr.P.C. except admitting solemnization of marriage with the victim and stated that he had falsely been implicated in the present case due to personal vendetta which has not been fortified by any cogent and convincing evidence. He had also shown his ignorance about the post mortem conducted by the doctor on the corpse of his deceased wife. His ignorance further authenticates the prosecution case which is an additional evidence that he was actively involved in setting the victim ablaze who sustained fatal burn injuries. The investigating officer proved the statement of the witnesses recorded under section 161 Cr.P.C. which were exhibited as Ex.Ka.7, 8, 9 & 10. This itself shows that how all the witnesses have been won over during the course of trial. The trial court had appreciated all the evidence with the connecting circumstances and also delved into the proximity of the incident and the dying declaration of the deceased. Dr. Y.C.Gupta who was posted at District Hospital Moradabad in his deposition specifically stated that he had examined the victim prior to recording her dying declaration by the Magistrate. The victim was mentally fit for making the statement. The statement of the victim was duly recorded by V.P.Sharma, Magistrate (P.W.5) on 5.11.1983. Dr. Y.C.Gupta had proved the statement of the victim which was exhibited as Ext.Ka.2. In his examination in chief, he had further stated when the statement of the victim was being recorded, no other person was present except he and the (P.W.9) Dr.Y.C.Gupta. The statement of the victim was duly recorded by V.P.Sharma, Magistrate (P.W.5) on 5.11.1983. Dr. Y.C.Gupta had proved the statement of the victim which was exhibited as Ext.Ka.2. In his examination in chief, he had further stated when the statement of the victim was being recorded, no other person was present except he and the (P.W.9) Dr.Y.C.Gupta. In his cross examination he had totally denied the suggestion specifying that he had not recorded any statement that the certificate was given under the pressure of the police rather V.P.Sharma had stated that he had taken full precaution at the time of recording the statement. The victim was alert and sensitive and had given her statement in full consciousness. No-one was present beside her at the time of recording her statement. After recording her statement he had put his signature and it was read over to the victim, thereafter the victim had put her thumb impression. In cross examination, V.P.Sharma, P.W.5 had further specifically stated that in the dying declaration, he had not certified that the victim was in a position to depose nor he had made any note that he had removed away all the persons standing there. He had only interrogated how she had sustained burn injuries. P.W.5, V.P.Sharma had not mentioned his own question put to her in the dying declaration thus the statement of the P.W. 5 V.P.Sharma and the P.W.9 Dr. Y.C.Gupta, conspicuously shows that the victim was in a position to give her statement which on her death has been treated as her dying declaration. The Magistrate had taken proper precaution while recording the declaration. In the examination of the aforesaid witnesses, it is clearly mentioned that the dying declaration was read over to the victim to authenticate its correctness. It is neither a rule nor tradition to record the dying declaration in a form of questionnaire. Merely because this question was not inserted in the dying declaration, it would not create any suspicion about the verity of dying declaration. There is nothing on record to disbelieve the dying declaration of the victim. It is neither a rule nor tradition to record the dying declaration in a form of questionnaire. Merely because this question was not inserted in the dying declaration, it would not create any suspicion about the verity of dying declaration. There is nothing on record to disbelieve the dying declaration of the victim. The testimony of the witness Balveer Saran who is the brother of the deceased supported the prosecution case in the examination in chief but later on in the cross examination, he changed his version stating that his sister was unconscious and had stated that she had sprinkled kerosene oil herself and set ablaze herself which amply shows that the witness Balveer Saran was won over and turned hostile. There is material consistency in his statement viz-a-viz medical evidence and dying declaration to discard his testimony to the extent which it does not support the prosecution case as incredible and untrustworthy. It is well settled law that on the sole basis of dying declaration there is no impediment in basing conviction without corroboration. The accused appellant failed to discharge his moral duty by making his presence at the last rites of the victim Smt. Madhu. The conduct of the appellant itself postulates active participation in the commission of the said offence. The accused appellant has also failed to elicit that he was so far away on the fateful day of occurrence that he could not be present at the place of occurrence. The onus to prove unnatural death of his wife in his own house rests on the accused appellant which is within his special knowledge and ought to have been conclusively proved by him. On the one hand it has been argued that the victim has committed suicide by pouring kerosene oil and setting herself ablaze but on the other hand, the appellant in his statement under section 313 Cr.P.C. has made vague and bald denial of all the incriminating circumstances by saying 'Mujhe Malum Nahin' (I do not know) The post mortem report shows that there were injuries around the body of the victim including the neck and there is no explanation from the side of the accused appellant as to how the victim had committed suicide and in what manner she had suffered injuries. The accused appellant instead of saving the life of the victim had fled away from the hospital. The accused appellant instead of saving the life of the victim had fled away from the hospital. The learned trial judge has rightly given weightage to the statement of the victim i.e. dying declaration who had supported the prosecution version in a very natural and convincing manner. Such evidence cannot be ignored and thrown out because it is spontaneous flow of actual facts showing connectivity of the accused appellant with the occurrence. The statement of the witnesses of fact who had turned hostile cannot be drifted away in toto if part of their statement hinges in favour of the prosecution. It is settled law that evidence of hostile witnesses can also be relied upon to the extent to which it supports the prosecution version. The prosecution version is corroborated by other reliable evidence. It is highly onerous to assume how a witness reacts to a particular incident. It is the quality of evidence and not the quantity which is gauged and weighed to prove a fact in issue. There is ample evidence to prove in all human probability to connect that the victim Smt. Madhu was done to death by the appellant and the appellant alone. The motive existing in the mind of the accused appellant may not be within the access of others. However, it is the perpetrator of the crime alone who is aware of the circumstances that prompted him to adopt a certain course of action leading to the commission of the crime. There is sufficient evidence on record suggesting strong motive behind the commission of gruesome and monstrous act of the appellant causing burn injuries to the victim Smt. Madhu. The connectivity of the circumstances are conclusive in nature excluding any other probability except the complicity of the accused appellant. It is well settled law that section 106 of Evidence Act does not shift the burden of proof in a criminal trial which is always upon the prosecution at the same time when the accused person does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation as an additional link which completes the chain. The submission that the appellant has neither any motive nor any role in the commission of the said incident hence the sentence and conviction of the appellant resting solely upon the dying declaration is untenable. The guilt of the accused appellant can very well be inferred from his conduct and surrounding circumstances coupled with medical evidence on record. The gruesome crime has been committed with preconcerted state of mind hence the appellant has rightly been convicted and sentenced under section 302 IPC. The guilt of the appellant has been drawn from the circumstances and the cumulative effect of the circumstances is so as to negate his innocence. There is no reason why the victim would falsely implicate her husband. There is no suggestion in the statement recorded under section 313 Cr.P.C. as to why victim had set herself ablaze leaving one month old child. From the prolix discussion, it emerges out that the involvement of the appellant in the commission of the said offence stood proved beyond reasonable doubt. The witnesses of fact (P.W.1, P.W.2 & P.W.3) have retracted from their statement and have made material improvement at the time of trial and came up with the theory of suicide so as to shield the genesis of the incident and to create doubt as to the mode and the manner of the incident under which the victim sustained fatal burn injuries but the court below while appreciating their evidence has rightly not attached undue significance to minor discrepancies and has considered the broad spectrum of the prosecution version. The injured victim had established the identity of the appellant which was neither tutored nor tainted. No material contradiction was found affecting the credibility of her dying declaration. The gravamen of the offence and the proved circumstances which shows the connectivity of the appellant with the commission of the said crime also stands fully established. The victim had succumbed to unnatural death on account of 90% burn injuries. Her dying declaration recorded by P.W. 5 V.P.Sharma in the presence of the Dr.Y.C.Gupta (P.W.9) cannot be said to be the result of tutoring or prompting, hence the trial judge was satisfied from their evidence that the dying declaration was true and voluntary. The victim had succumbed to unnatural death on account of 90% burn injuries. Her dying declaration recorded by P.W. 5 V.P.Sharma in the presence of the Dr.Y.C.Gupta (P.W.9) cannot be said to be the result of tutoring or prompting, hence the trial judge was satisfied from their evidence that the dying declaration was true and voluntary. In the light of aforesaid facts and circumstances of the case, we draw irreversible and irrefutable conclusion that the judgment and order dated 21st February 1985 passed by the learned Xth Additional Sessions Judge, Moradabad does not suffer from any infirmity warranting interference by this Court. The conviction and sentence of the appellant as awarded by the learned trial judge is hereby maintained and upheld. Resultantly this appeal fails and is hereby dismissed. The appellant who is on bail be taken into custody forthwith to serve out the sentence as awarded by the court below. Office is directed to send back the record to the trial court. Judgment be certified and placed on record. ———————