JUDGMENT : Kanwaljit Singh Ahluwalia J. 1. Rakesh Nayak, present accused-appellant three years before the day of occurrence was married with Mst. Saroj. They were having a son aged one year. 2. On 21.08.2009 on the alleged night at around 08:00-09:00 P.M. Mst. Saroj in her parental house suffered burn injuries. Her statement (Exhibit-P/26) was recorded by Ghadsi Ram (PW-15), who was then posted as Assistant Sub Inspector at Police Station, Sadar Sikar. 3. During her admission, in the Female Surgical Ward, S.K. Hospital, Sikar, under the directions of Chief Judicial Magistrate, Sikar on 22.08.2009 at 10:20 A.M. Yogesh Sharma (PW-17), who was then posted as Judicial Magistrate, Sikar, had recorded Exhibit-P/29 dying declaration of Mst. Saroj. 4. In both; the statement (Exhibit-P/26) made to the Investigating Officer, which later was termed as dying declaration and in the subsequent dying declaration (Exhibit-P/29) recorded by the Judicial Magistrate, Sikar, Mst. Saroj, in a categoric terms, stated that her husband, present appellant had poured kerosene oil from the lamp (chimney) and had put her on fire. 5. Almost all the prosecution witnesses, who happen to be the relatives of the deceased and her neighbourers, have not supported the prosecution case. They resiled from the previous statements made to the Police under Section 161 Cr.P.C. and were declared hostile to the prosecution. 6. The trial Judge, relying upon two dying declarations made by the deceased, vide its impugned judgment dated 23.02.2011 convicted the present appellant for commission of offence punishable under Section 302 of Indian Penal Code. 7. The Court of Additional District & Sessions Judge (Fast Track), Sikar, being trial Judge, vide a separate order of even date, sentenced the appellant to undergo life imprisonment, to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo additional six months rigorous imprisonment. 8. In the present appeal instituted by the accused-appellant - husband of the deceased, the conviction recorded and sentence awarded by the trial Judge have been made a subject matter of challenge. 9. The statement made by Mst. Saroj, deceased to A.S.I./I.O. Ghadsi Ram (PW-15), when translated into English reads as under :- “The parchabaya/statement made by Smt. Saroj w/o Rakesh by caste Nayak, aged twenty-years, resident of Jhigarbadi, Police Station Sadar Sikar, at present admitted for treatment at Bed No.35, Female Surgical Ward, S.K. Hospital, Sikar. 9. The statement made by Mst. Saroj, deceased to A.S.I./I.O. Ghadsi Ram (PW-15), when translated into English reads as under :- “The parchabaya/statement made by Smt. Saroj w/o Rakesh by caste Nayak, aged twenty-years, resident of Jhigarbadi, Police Station Sadar Sikar, at present admitted for treatment at Bed No.35, Female Surgical Ward, S.K. Hospital, Sikar. Stated that yesterday on 21.08.2009 at about 08:00-09:00 P.M. I was serving meals to my husband. I and my husband on full moon night came to my parental house at Bhikhanbasi. In the night, my husband came after consuming liquor. On arrival, first he had a quarrel with me. Then my husband threw burning lamp (chimney) upon me. I suffered burns. On my raising noise, my aunt - Chandri came. In the house, I, my husband and my sister - Sunita were present. My mother had gone to attend pernoctation (jagran). My marriage was solemnized three years ago. I am having a son, aged one year. My husband used to harass me. I became unconscious. I do not know who got me admitted here. I have been fully burnt. R.T.I. Saroj Ghadsi Ram Dt. 22.08.2009 at 09:55 A.M.“ 10. Circle Officer, - Rajendra Singh, who was then posted as Station House Officer, Police Station, Sadar Sikar, on 22.08.2009 had presented a written application to the Chief Judicial Magistrate, Sikar (Exhibit-P/28) praying therein that a Judicial Magistrate be deputed to record the statement of the deceased – Mst. Saroj. In pursuance thereof, Chief Judicial Magistrate, directed Judicial Magistrate – Yogesh Sharma (PW-17) to record the statement of Mst. Saroj. Yogesh Sharma (PW-17) reached at S.K. Hospital, Sikar and recorded Exhibit-P/29, dying declaration of deceased – Mst. Saroj. 11. In her dying declaration (Exhibit-P/29) recorded before the Judicial Magistrate, Mst. Saroj stated that yesterday at 09:00 P.M. her husband – Rakesh had put her on fire with the lamp (chimney), which was lying on the desk. She stated that she was put on fire in her parental house at Bhikhanbasi, and when she was put on fire, then in her parental house, nobody else was present. She and her husband were alone there. Her mother had gone to the house of Durga Jhakad. Her sister – Sunita, aged eight years, at that time had gone out of the house. She stated that her husband poured kerosene oil from the lamp (chimney) and had put her on fire. She and her husband were alone there. Her mother had gone to the house of Durga Jhakad. Her sister – Sunita, aged eight years, at that time had gone out of the house. She stated that her husband poured kerosene oil from the lamp (chimney) and had put her on fire. She raised noise, then her aunt, namely Chandri arrived. She saved her. She further stated that her marriage was three years old. She was having a son aged one year. Her son had accompanied her mother. She further stated that her husband - Rakesh had not demanded any dowry and as to why he put her on fire, is better known to him only. She stated that she has nothing more to say. 12. As noted earlier, the above dying declaration (Exhibit-P/29) was recorded on 22.08.2009 at 10:20 A.M. and while admitted in the hospital on 18.09.2009 at 07:25 P.M. Mst. Saroj expired. 13. Dr. Hardev Singh (PW-9) stated that on 21.08.2009 he had admitted Mst. Saroj in the Female Surgical Ward, being posted as Medical Jurist, S.K. Hospital, Sikar. At the time of admission, Mst. Saroj was having 90% superficial to deep burns over face, neck, forearm, chest, abdomen, back of both elbows and thighs. The said Doctor had prepared Injury Report (Exhibit-P/13). 14. In the said Injury Report (Exhibit-P/13), it was noted as under :- “Superficial to deep burn on face, neck, both upper limbs, chest, abdomen, couple to back hips and both thighs and knee. Right leg upper. Total burn are about 90%. Caused by dry heat. Smell of kerosene present. “ 15. According to the Doctor, the cause of burn was dry heat, smell of kerosene was present around the burns injuries. In the cross-examination, Dr. Hardev Singh (PW-9) admitted that head, hairs and shoulders of the deceased were not burnt. 16. Dr. Mohammad Farooq (PW-14) on 19.09.2009 at 09:00 A.M. had conducted an autopsy on the dead-body of deceased - Mst. Saroj. In the Post Mortem Report (Exhibit-P/17), said Doctor had also noticed superficial to deep burns over the face, neck, skull, both forearms, chest, back, abdomen and on both lower limbs. 17. The cause of death, according to the said Doctor, was antemortem burns having pus. The burn injuries were ante-mortem in nature and there was pus formation. Saroj. In the Post Mortem Report (Exhibit-P/17), said Doctor had also noticed superficial to deep burns over the face, neck, skull, both forearms, chest, back, abdomen and on both lower limbs. 17. The cause of death, according to the said Doctor, was antemortem burns having pus. The burn injuries were ante-mortem in nature and there was pus formation. As per opinion of the said Doctor, the cause of death was shock due to Septicemia, as a result of about 100% burn with super added infection. The burn injuries were sufficient to cause death in the ordinary course of nature. 18. Sevaram, father of deceased - Mst. Saroj had expired before the alleged occurrence. Smt. Vimla (PW-4), mother and Sunita (PW-3), sister of deceased, have not supported the case of prosecution. 19. Smt. Vimla (PW-4), mother of the deceased, stated that she never saw Rakesh consuming liquor. She never heard any kind of quarrel between her daughter and son-in-law - Rakesh. This witness stated that she had gone to pernoctation (jagran). Lixman, son of her husband's elder brother came and informed her that Mst. Saroj had suffered burn injuries. 20. Matabaksh was an elder brother of Sevaram, father of deceased. Lixman (PW-1) and Begaram (PW-2) are sons of Matabaksh and, hence, first cousin of deceased. They have also not supported the prosecution case and feigned ignorance regarding the alleged incident. 21. Similarly, Smt. Chandri Devi (PW-7) (tai/aunt), being wife of Matabaksh, who was immediately attracted at the spot, after hearing noise of deceased, has not supported the prosecution case. This witness in the Court stated that on the day, she heard cries of ‘ burnt-burnt. She went running to the house of Smt. Vimla. The daughter of Smt. Vimla was burning. They doused the fire. This witness stated that she is not aware as to how Mst. Saroj had received burns. 22. Not only the close relatives of the deceased, but Smt. Sohni (PW-5) and Smt. Chhoti Devi (PW-6), neighbourers have also not supported the prosecution. 23. Pooran (PW-8), uncle (phupha) of the deceased also deposed in the Court that he is not aware, who had put Mst. Saroj on fire and as to how she caught fire. 24. Thus, all the relatives and the neighbourers of the deceased have turned hostile to the prosecution and have not supported the prosecution case. 25. 23. Pooran (PW-8), uncle (phupha) of the deceased also deposed in the Court that he is not aware, who had put Mst. Saroj on fire and as to how she caught fire. 24. Thus, all the relatives and the neighbourers of the deceased have turned hostile to the prosecution and have not supported the prosecution case. 25. Yogesh Sharma (PW-17), being posted as Judicial Magistrate, under the orders of the Chief Judicial Magistrate, as stated earlier had recorded dying declaration (Exhibit-P/29) of Mst. Saroj. In his cross-examination, Yogesh Sharma (PW-17) admitted that the dying declaration is not having any endorsement by the attending Doctor. This witness stated that Doctor on the application submitted by Sub Inspector, Sikar had declared the patient to be fit to make the statement. This witness stated that along with Exhibit-P/28 and Exhibit-P/29, no Certificate of the Doctor regarding fitness of the deceased has been annexed. 26. We need not notice the statement of the formal witnesses and the witnesses, who had participated in the investigation. 27. We may note here that Priyanka Yadav (PW-13), being posted as Senior Scientist Assistant, Mobile Forensic Unit, State Forensic Science Laboratory, District Sikar, had carried inspection of the spot and had submitted Inspection Report (Exhibit-P/25). 28. After the prosecution closed its evidence, the statement of the accused was recorded under Section 313 Cr.P.C. All incriminating circumstances were put to him. He denied the same and pleaded innocence and false implications. No witness was examined in defence. 29. We have heard Mr. Vijay Poonia, learned counsel appearing for the accused-appellant and Mr. N.S. Dhakad, learned Public Prosecutor appearing for the State of Rajasthan, and perused the impugned judgment as well as the relevant record of the case. 30. Mr. Vijay Poonia, learned counsel appearing for the accused appellant, has submitted that in the present case, dying declaration in the form of the statement made by the deceased (Exhibit-P/26) before Assistant Sub Inspector – Ghadsi Ram (PW-15), as well as, the dying declaration (Exhibit-P/29) made before Yogesh Sharma (PW-17), Judicial Magistrate, Sikar is not corroborated by any evidence. Counsel has further submitted that the witnesses, who were examined by the prosecution to corroborate the dying declarations have not supported the prosecution case, rather they have deposed contrary to the contents of the dying declarations. 31. Counsel has further submitted that the witnesses, who were examined by the prosecution to corroborate the dying declarations have not supported the prosecution case, rather they have deposed contrary to the contents of the dying declarations. 31. Counsel appearing for the accused-appellant has contended that without corroboration, we should not rely upon the dying declaration, especially when the relatives of the deceased and the neighbourers have not attributed any motive on the part of the appellant. 32. It shall be apposite for us to reproduce here observations made by Apex Court in Paniben v. State of Gujarat, (1992) 2 SCC 474 , where for appreciating dying declaration, law has been summed up as under:- “Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court on its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:- (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munna Raja v. State of M.P., (1976) 3 SCC 104 ). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 ), Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 ). (Munna Raja v. State of M.P., (1976) 3 SCC 104 ). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 ), Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 ). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 ). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P., (1974) 4 SCC 264 ). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P., 1981 Supp SCC 25). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P., (1981) 2 SCC 654 ). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455). (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, 1980 Supp SCC 769). (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. ( Nanahau Ram v. State of M.P., 1988 Supp SCC 152). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, (1989) 3 SCC 390 ).” 32. It is a settled legal position of law that the dying declaration, if aspire confidence can be relied without any corroboration. 33. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, (1989) 3 SCC 390 ).” 32. It is a settled legal position of law that the dying declaration, if aspire confidence can be relied without any corroboration. 33. In the present case, alleged occurrence had taken place on the night of 21.08.2009 at 08:00-09:00 P.M. Immediately, Mst. Saroj was brought to S.K. Hospital, Sikar. She was admitted in the Female Surgical Ward at 10:30 P.M. In the morning, her statement (Exhibit-P/26) was recorded at 09:55 P.M. Thereafter, her dying declaration (Exhibit-P/29) at 10:20 A.M. was recorded by Yogesh Sharma (PW-17), Judicial Magistrate, Sikar. 34. A perusal of the dying declarations reveal that in the same, only allegations have been levelled against the husband. The victim had specifically stated that her husband was not demanding any dowry. Mst. Saroj, being wife has specifically stated that accused had a quarrel with her. He was under the influence of liquor. He poured kerosene oil upon her from the lamp (chimney)) and thereafter, had put her on fire. The dying declaration relied is free from any kind of blemish. The dying declaration is credible and truthful. Merely because the relatives and neighbourers have not supported the prosecution case because they have been prevailed upon by the accused, the dying declarations (Exhibit-P/26 and Exhibit-P/29) cannot be discarded. 35. Having failed to persuade us to believe the testimony of the relatives and neighbourers, Mr. Poonia, learned counsel appearing for the accused-appellant, has further canvassed that since Yogesh Sharma (PW-17), Judicial Magistrate, Sikar before recording the dying declarations had not obtained any opinion of the Doctor, we should exclude dying declaration from the consideration. 36. It has been contended by the learned counsel that both; Dr. Hardev Singh (PW-9), who was then posted as Medical Jurist at the time of admission of the deceased and Dr. Mohammad Farooq (PW-14), who had conducted an autopsy on the dead-body of deceased Mst. Saroj, have no where stated that the deceased was ever fit to make the dying declaration. 37. Hardev Singh (PW-9), who was then posted as Medical Jurist at the time of admission of the deceased and Dr. Mohammad Farooq (PW-14), who had conducted an autopsy on the dead-body of deceased Mst. Saroj, have no where stated that the deceased was ever fit to make the dying declaration. 37. It has been further contended by the learned counsel that it is admitted by Yogesh Sharma (PW-17), Judicial Magistrate, Sikar that no Certificate of the deceased issued by the Doctor is on record to the effect that the deceased was in a position to speak and make dying declaration. The argument raised is no longer res-integra. 38. Our opinion to place implicit reliance upon Dying Declaration recorded by Magistrate is further fortified by observations made by fivejudge Bench of the Apex Court in the case of Laxman Vs. 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. vs. 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 vs. 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. In the latter decision of this court in Koli Chunilal Savji & Another vs. 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 vs. 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 court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur VS. 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. vs. 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. vs. 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 vs. State of Gujarat 1999(9) SCC 562 case.” 39. Therefore, in view of the settled legal position, we reject the argument raised by the learned counsel appearing for the accused-appellant that the dying declaration recorded by the Magistrate cannot be relied, merely because on the record, there is no Certificate issued by the Doctor that the patient was fit to make the statement. The Magistrate is a most independent person, he will not record false dying declaration. Therefore, the assertion made by him that the deceased was fit to make the statement in itself is good enough to rely upon the dying declaration. 40. Therefore, in our view, the trial Judge has rightly relied upon the statement made by deceased (Exhibit-P/26) by treating it as a dying declaration and Exhibit-P/29, dying declaration recorded by the Judicial Magistrate. 41. Therefore, we have no hesitation to hold that the trial Judge has rightly convicted the appellant. Thus, no interference is warranted. 42. Consequently, we affirm conviction recorded and sentence awarded by the trial court and dismiss the present appeal, being devoid of merit.