JUDGMENT : B.N. KARIA, J. 1. The appellant, who is convicted in Sessions Case No.23 of 2011 by the learned Addl. Sessions Judge, Dhrangadhra for the offence punishable under Section 302 of the Indian Penal Code (‘IPC’, for short) to undergo rigorous imprisonment of life and to pay fine of Rs.10,000/- and in default of the same, to undergo further simple imprisonment of three years by judgment and order dated 25.4.2014, has preferred this Criminal Appeal under Section 374 of the Criminal Procedure Code, 1973 (‘Cr.P.C.’, for short). 2. Short facts of the present case are as stated below:- 2.1 Gauriben, wife of Chandubhai Harjibhai Mochi on 29.6.2011, lodged a complaint, alleging that her marriage was solemnised with one Chandubhai Harjibhai Mochi - the accused before two years and it was her second marriage. On the date of the incident i.e. on 28.6.2011, at about 4.00 p.m., when she was at her home, at that time, her husband - Chandubhai Harjibhai Mochi entered into the house and poured kerosene on her body and set her ablaze by a matchstick and thereafter, went away from the home. That she had frequent disputes with her husband. 2.2 She was shifted to Civil Hospital at Shankhalpur from Vanod in a 108 Ambulance and thereafter, was shifted to Civil Hospital, Mehsana in burns ward. As per her statement in the complaint, she was conscious and had received burn injuries over her body. This complaint was recorded by ASI, Mehsana Civil Hospital Duty, Mehsana ‘A’ Division Police Station produced vide Exh.30. After recording the complaint, police started the investigation and after completing the investigation, filed chargesheet against the accused under Section 302 and 307 of the IPC. 2.3 The police papers were provided to the accused as required under Section 207 of Cr.P.C. The learned Judicial Magistrate First Class, Patdi in Criminal Case No.470 of 2011 passed an order below Exh.6, committing the case to the Sessions Court under Section 209 of the Cr.P.C. 2.4 The learned Additional Sessions Judge framed charge against the accused vide Exh.5 and plea was recorded vide Exh.6, wherein the offence was denied by the accused. Hence, the case was proceeded accordingly and following witnesses were examined by the prosecution. Sr. No Name of Witnesses Exh. 1. Panch Dalpatbhai Mohanbhai Parmar 14 2 Panch Gulabbhai Jahangirbhai Malek 15 3 Panch Imamsha Mahammadshah Divan 18 4 Witness Dr. Hence, the case was proceeded accordingly and following witnesses were examined by the prosecution. Sr. No Name of Witnesses Exh. 1. Panch Dalpatbhai Mohanbhai Parmar 14 2 Panch Gulabbhai Jahangirbhai Malek 15 3 Panch Imamsha Mahammadshah Divan 18 4 Witness Dr. Hardik Shantilal Chauhan 22 5 Panch Bhavnaben Kishorebhai Solanki 26 6 Panch Dharmshibhai Bhikhabhai Thakor 27 7 Panch Ahmedsha Ganisha Fakir 28 8 Witness Naranbhai Mahadevbhai, A.S.I., who took the complaint 29 9 Witness Rameshbhai Ranchhodbhai Prajapati, Executive Magistrate 39 10 Witness Dr. Kamleshkumar Pitamberbhai Itadariya 41 11 Witness Harikrushna Manubhai Parmar 44 12 Witness Lilaben Manubhai Shivabhai Parmar 45 13 Witness Kantilal Ratilal Solanki 46 14 Witness Kishorbhai Ratilal Solanki 48 15 Witness Dr. Rameshbhai Maganbhai Shah 49 16 Witness Harshadkumar Bhanushankar Dave, Investigating Officer - P.S.I. 52 2.5 The learned Addl. Sessions Judge considered the following documentary evidences while determining the prosecution case:- Sr. No. Documents Exh 1 Panchnama of place of incident 15 2 Inquest panchnama of deceased 17 3 Arrest Panchnama of the accused 19 4 Yadi of Medical Test of the accused 23 5 Case-paper of the accused 24 6 Medical Certificate of the accused 25 7 Copy of the original complaint given by the deceased before the Head Constable at Mehsana Civil Hospital. 30 8 Letter with regard to the complaint to be further submitted before Mehsana City Police Station. 31 9 Yadi to Executive Magistrate to fill the inquest. 32 10 Yadi to Executive Magistrate by P.S.O. for taking the Dying Declaration of the deceased. 33 11 Letter to the Doctor to perform postmortem. 34 12 Post-death form 35 13 Letter with regard to submitting entire papers of deceased to Dasada Police Station. 36 14 Dying Declaration before Executive Magistrate. 40 15 Transfer form of the deceased. 42 16 Case of deceased of Mehsana Civil Hospital. 43 17 Yadi to police with regard to Postmortem of deceased. 50 18 Postmortem report of the deceased. 51 19 Report of FSL Investigation Van, Surendranagar. 53 20 Entries in Station Diary Entry No.7/11. 54 21 Report of adding Section 302 of IPC. 55 22 Yadi to Mehsana Civil Hospital. 56 23 Yadi to Executive Magistrate for getting the Dying Declaration. 57 24 Forwarding letter of muddamal articles being sent to FSL. 58 25 Receipt of muddamal articles by FSL. 59 26 Report submitted by FSL with regard to muddamal. 54 21 Report of adding Section 302 of IPC. 55 22 Yadi to Mehsana Civil Hospital. 56 23 Yadi to Executive Magistrate for getting the Dying Declaration. 57 24 Forwarding letter of muddamal articles being sent to FSL. 58 25 Receipt of muddamal articles by FSL. 59 26 Report submitted by FSL with regard to muddamal. 60 to 61 27 Letter to Vanod police station for investigation. 62 2.6 After completing the evidence of the prosecution, statement under Section 313 of the Cr.P.C. was recorded by the court. The accused denied the charges levelled against him and refused to examine the witnesses in support of his case. As per the statement of the accused, this was the third marriage of the deceased and he was doing his business by staying at Ahmedabad along with his parents and thereafter, on the request made by deceased, they shifted to Village: Vanod and states that no offence was committed by him and he was falsely involved in the case by the prosecution. 2.7 The learned Addl. Sessions Judge, after hearing the learned advocates for respective parties and considering the evidence on record, was pleased to pass an order dated 25.4.2014, convicting the accused as stated above. 3. Heard learned counsel Mr. Hardik K. Raval for the appellant and learned A.P.P. Mr. J.K. Shah for the respondent - State. 4. It was submitted by learned counsel for the appellant that the order passed by learned Addl.Sessions Judge, Dhangadhra, convicting the accused, is prima facie and apparently erroneous and illegal, contrary to the evidence on record. It was further submitted that evidence of the prosecution is full of infirmities and creates serious doubt as to the trustworthiness of the prosecution witnesses. That the accused was convicted on the basis of irrelevant consideration, conjectures and surmises by ignoring the material and evidence on record. It was further submitted that no panch witness supported the prosecution case, and no panchnamas are drawn in their presence. That out of 16 witnesses examined by the prosecution, prosecution witness Nos.1, 2, 3, 6 and 7 have turned hostile. That there is no eye-witness of the so-called incident and no independent witnesses were examined, even though it is alleged that the incident was taken place and the people had gathered at the placed of incident. That out of 16 witnesses examined by the prosecution, prosecution witness Nos.1, 2, 3, 6 and 7 have turned hostile. That there is no eye-witness of the so-called incident and no independent witnesses were examined, even though it is alleged that the incident was taken place and the people had gathered at the placed of incident. That witnesses examined by the prosecution are relatives of the deceased and they have not supported the case of the prosecution, as they are hear-say witnesses. That the learned Addl. Sessions Judger has committed an error on relying upon the Dying Declaration of the deceased, who had suffered 95% of second and third degree burns all over the body and same is suspicious with regard to the consciousness and fitness of the mind of deceased to lodge an FIR as well as to make her Dying Declaration. There was no satisfactory evidence that before recording of FIR, the ASI, PW-8, had obtained the opinion of the doctor as regards the state of mind of the deceased. It was further submitted that the Dying Declaration at Exh.40 of the deceased was full of improvement and contrary to FIR, Exh.30. That in the Dying Declaration, Exh.40, thumb impression was shown of the deceased, but it was never identified by any person and therefore, it was suspicious with regard to its correctness. It was further submitted that the prosecution is bound to prove the Dying Declaration, as it was voluntary and truthful and the victim was in a fit state-of mind. That considering the cumulative factors and surrounding circumstances, it was impossible to rely upon the Dying Declaration at Exh.40 so also FIR, Exh.30 and therefore, the conviction cannot be based solely upon it. As per the prosecution case, the accused had illicit relationship with a girl belonging to Prajapati community and if the deceased had been nurturing the grudge against her husband for a long time, while committing suicide, herself may try to implicate him so as to make his life miserable. That there was no evidence produced by the prosecution of illegal relationship with a girl belonging to Prajapati community as alleged by the prosecution. That the prosecution failed to explain how the accused sustained burn injuries on her body. That the prosecution has to prove its case beyond reasonable doubt, which is not yet proved. That there was no evidence produced by the prosecution of illegal relationship with a girl belonging to Prajapati community as alleged by the prosecution. That the prosecution failed to explain how the accused sustained burn injuries on her body. That the prosecution has to prove its case beyond reasonable doubt, which is not yet proved. That the impugned order is contrary to law and the findings arrived at, are illegal and bad in law and therefore, it was requested by learned counsel for the appellant to quash and set-aside the order dated 25.4.2014 passed by learned Addl. Sessions Judge, Dhangadhra in Sessions Case No.23 of 2011. 5. From the other side, learned A.P.P. Mr. Shah strongly opposed the submissions made by the appellant arguing that from the beginning, deceased Gauriben, on the day of incident, has stated with full consciousness that at about 4.00 p.m. on 28.6.2011 when she was at her home, the accused entered into the house and poured kerosene over the body and ablazed her with matchstick and thereafter, left her. She has further stated in her complaint, Exh.30 that she was married before two years to the accused and had frequent quarrels. That Shri Naranbhai Mahadevbhai, who had recorded the complaint at Exh.30 of the complainant, was examined as PW-8 vide Exh.29 and has supported the contents of the complaint. He has further stated that this complaint was recorded by him as per the instructions of the deceased - Gauriben in his presence and her thumb impression was taken. That, thereafter, the Executive Magistrate was informed to record the Dying Declaration by forwarding a Yadi vide Exh.33 on 28.6.2011. That the Executive Magistrate immediately rushed to the hospital and recorded the Dying Declaration of the deceased wherein also, she has clearly stated that at the time of this incident, there were only two persons in the house, she herself and her husband. She has clearly stated that on account of grudge of love affair of her husband and raising her grievance, kerosene was poured by him over her body and set her ablaze with a matchstick. Thereafter, she had shouted and her husband left the home and the neighbours gathered at the place of incident and tried to save her. That the husband was only responsible for her burn injuries. The same facts were also supported by the Executive Magistrate, PW-9 - Rameshbhai Ranchhodbhai Prajapati. Thereafter, she had shouted and her husband left the home and the neighbours gathered at the place of incident and tried to save her. That the husband was only responsible for her burn injuries. The same facts were also supported by the Executive Magistrate, PW-9 - Rameshbhai Ranchhodbhai Prajapati. That in Civil Hospital, Mehsana before Dr. Kamleshkumar Pitamberbhai, PW-10, same history was given by the deceased of pouring kerosene by her husband. This witness has also supported the case of the prosecution. That in Yadi, doctor concerned has passed his endorsement of consciousness of the deceased. It was not necessary to examine the doctor, when specific endorsement was passed by the doctor before recording the Dying Declaration of the deceased at Exh.40 that in the medical casepaper also, history was noted by doctor as per the instructions of the deceased - Gauriben of pouring kerosene on her body by her husband. The other witnesses, however, related to the deceased have clearly supported the prosecution case. No illegality or infirmity can be found from the findings and reasonings of the learned Addl. Sessions Judge in the impugned judgment and order. In Postmortem Note, Exh.51, doctor has opined the cause of death as 'hypovolemic shock due to extensive burns'. That the impugned judgment and order is legal and valid, as the prosecution has proved its case beyond reasonable doubt against the accused and hence, it was requested by learned A.P.P. to dismiss the Criminal Appeal. In support of his argument, he has placed his reliance on the judgment by Hon'ble Supreme Court of India, reported in (2002)6 SCC 710 in the case between Laxman vs State Of Maharashtra. 6. It is the case of the prosecution that the incident was taken place on 28.06.2011 at about 04.00 p.m. Thereafter, the victim/deceased was removed to Primary Health Centre, Dashada for the treatment and for her further treatment, she was referred to Mehsana Civil Hospital and admitted in burns department. On 28.06.2011, at about 23.50 hours, she was died. Thereafter, on 29.06.2011 yadi Ex. 54 was sent to the Medical Officer to perform the post mortem. 6.1 The post mortem was started on 29th June 2011 at about 06.10 a.m. and completed at about 7.30 a.m. The post mortem report is produced before the lower court at Ex. 51. As per the post mortem report, internal injuries mentioned in column no. 54 was sent to the Medical Officer to perform the post mortem. 6.1 The post mortem was started on 29th June 2011 at about 06.10 a.m. and completed at about 7.30 a.m. The post mortem report is produced before the lower court at Ex. 51. As per the post mortem report, internal injuries mentioned in column no. 17 are as under: 17. Surface wounds and injuries: Their natural position, dimension (measured) and directions to be accurately stated, their probable age and causes to be noted. (1) II and III degree burns as head, back of chest, abdomen, back of abdomen, both thigh, both legs (spacing some area antenaly) (2) Approx 95% Burn (3) Skin removed from most burnt area (4) Blackeing of the skin at some places If bruises are present, what is the condition of the subcutaneous tissues? (Note.: When injuries are numerous and cannot be mentioned within the space available they should be mentioned on a separate paper which should be signed) 6.2 As per column No. 18, it is stated that the injuries was anter mortem. As per column No.23 of the post mortem report, the cause of death is hypouolacnic shor due to extensive burns. The prosecution has examined Dr. Rameshbhai Maganbhai Shah, who has performed the post mortem, as prosecution witness No. 15 at Ex. 40. The post mortem report has been proved in the deposition of this witness. 6.3 Considering the injuries and cause of death of the deceased Gauriben mentioned in the post mortem report, it is concluded that the deceased was succumbed to the burns injuries and it is unnatural death. Now, it is required to be considered whether the accused is responsible for the said act/offence. For that purpose, the prosecution has relied upon mostly on dying declaration and in this regard, the discussion is as follows. 7. Having considered the facts and circumstances of the case, the submissions made by learned counsel for the respective parties and perusing the record of the Trial Court, in the instance case, the accused was convicted by the learned Addl. Sessions Judge, Dhangadhra on the Dying Declaration, Exh.40 as well as the complaint, Exh.30 of the deceased recorded by Executive Magistrate and ASI - Naranbhai Mahadevbhai, examined before the Trial Court vide Exhs.9 and 8 respectively. PW-9 - Rameshbhai Ranchhodbhai Prajapati, who was serving as Dy. Sessions Judge, Dhangadhra on the Dying Declaration, Exh.40 as well as the complaint, Exh.30 of the deceased recorded by Executive Magistrate and ASI - Naranbhai Mahadevbhai, examined before the Trial Court vide Exhs.9 and 8 respectively. PW-9 - Rameshbhai Ranchhodbhai Prajapati, who was serving as Dy. Mamlatdar and Executive Magistrate in the office of the Mamlatdar at Mehsana on 28.6.2011 received a Yadi, Exh.33 from the P.S.O., Mehsana, requesting to record the Dying Declaration of Gauriben Chandubhai Mochi of Village: Vanod. An another Yadi for Inquest Panchnama was also received from the Mehsana Police vide Exh.32, both of which were received by him under his signature. As the deceased was admitted in Civil Hospital, Mehsana, on receiving the Yadi, he rushed to the hospital and contacted the doctor, who was incharge of the patient. Upon inquiring from the doctor, he verified the fitness and consciousness of the patient, and it was opined by the doctor that the patient was conscious and was in a fit condition to answer the questions in respect of the Dying Declaration. In Yadi, Exh.33, necessary instruction was passed by the doctor incharge of her consciousness. Thereafter, this witness went into the room of the patient and verified that no person/s were there surrounding to the patient. At 7.05 in the evening, he started to record the Dying Declaration of the patient in the form of question and answer. The patient was found in burnt condition, but was fully conscious as well as fit to answer the questions. The witness found that the patient was fit and in a conscious position and was answering the question in proper manner. In respect of the question, she informed that her husband was tutoring embroidery work in her house at Village: Vanod. One girl of Prajapati community was coming for learning the embroidery work. She had raised her grievance before her husband that the work of embroidery has started recently and had stated not to enter into any illicit relationship and therefore, her husband got annoyed and had beaten her. Thereafter, kerosene was poured on her body and she was set-ablaze with matchstick. She had shouted and at that time her husband left the home and thereafter, the neighbours had reached and had tried to save her. The statement of deceased - Gauriben was recorded by this witness and Dying Declaration was completed at 19:20 hours. Thereafter, kerosene was poured on her body and she was set-ablaze with matchstick. She had shouted and at that time her husband left the home and thereafter, the neighbours had reached and had tried to save her. The statement of deceased - Gauriben was recorded by this witness and Dying Declaration was completed at 19:20 hours. He has further submitted that right-hand thumb impression was taken of Gauriben on the Dying Declaration and also made his signature showing the date. This entire Dying Declaration was wrote by himself in his own handwriting. In his crossexamination also, he has stated that after reaching the hospital, he first contacted the doctor, who was treating the patient. He has admitted that in the Dying Declaration, no endorsement was taken by him of the consciousness of the patient. This witness has voluntarily stated that such an endorsement was received by him from the original police Yadi. It appears from the cross-examination that the relatives of the patient were sitting outside the room. He recorded the Dying Declaration. He also admits that the thumb impression of Gauriben was not identified by anybody. He has denied that as the patient had received more than 60% burn injuries, and she was unconscious, was not in a position to answer the questions. The Dying Declaration recorded on 28.6.2011, was noted at 19:20 Hours and was produced at Exh.40. It also appears from the record of the Trial Court that in complaint lodged by Gauriben, deceased herself before the unarmed ASI Of Mehsana 'A' Division Police Station, has averred the same theory as was averred by her in her complaint, Exh.30, stating that her husband at 4.00 p.m., entered into the house and poured kerosene over her body and ablazed her with the matchstick. This content is also proved by the prosecution by examining Shri Naranbhai Mahadevbhai at Exh.29, who had recorded the complaint. He has clearly stated that on 28.6.2011, when he was serving as a Head Constable in Civil Hospital, Mehsana, Mochi Guariben Chandubhai was shifted from Becharaji C.H.C. to Mehsana Civil Hospital in an Ambulance. She was inquired by him and had recorded her complaint. He has further stated that the complaint, Exh.30 was recorded by him as per the instructions of Gauriben and she had also put her thumb impression below the complaint. Thereafter, he informed the City Police Station, Mehsana vide Exh.31. She was inquired by him and had recorded her complaint. He has further stated that the complaint, Exh.30 was recorded by him as per the instructions of Gauriben and she had also put her thumb impression below the complaint. Thereafter, he informed the City Police Station, Mehsana vide Exh.31. Then, as the complainant expired, this witness supported to prepare the inquest by informing the P.S.O. and accordingly, P.S.O. informed the Executive Magistrate by forwarding a Yadi. He had prepared the Inquest Panchnama in presence of P.S.O. after arrival of Executive Magistrate, produced vide Exh.17. That this witness has recorded the statement of Manubhai Naranbhai Mochi and he was not examined as witness by the prosecution. In such type of cases, when truthfulness of Dying Declaration was believed by the court, it was not necessary for the prosecution to examine number of witnesses. In absence of examining this witness, namely, Manubhai Naranbhai Mochi, would not fatal the entire prosecution case. It also appears from the deposition of Dr. Kamleshkumar Pitamberbhai, PW- 10 that when Gauriben was shifted from Becharaji C.H.C. to Civil Hospital, Mehsana with a transfer chit, Exh.42, this doctor investigated her and recorded her history. As per the history given by the patient i.e. Gauriben, her husband poured kerosene on her. The marriage span of the patient was of two years and had one child. She was completely in conscious condition. He stated that in the burn injuries received by the patient, there was smell of kerosene over the body and clothes. Necessary treatment was given to her by this witness, but during the course of treatment on the very same day, at about 10.15 during night hours, she expired. The case and necessary treatment papers under his signature is produced vide Exh.43. He has also supported the Yadi, Exh.33, stating that it was a Yadi for recording the Dying Declaration, wherein he had passed his endorsement under his signature that patient was conscious and was fit to answer in respect of the Dying Declaration. On 28.6.2011, at 7.00 p.m., he has further stated that this endorsement was passed on an inquiry made by the Executive Magistrate and thereafter, he investigated the patient and confirmed of her consciousness that she was able to answer the Dying Declaration. This doctor has also supported the endorsement by it on Yadi, Exh.33. On 28.6.2011, at 7.00 p.m., he has further stated that this endorsement was passed on an inquiry made by the Executive Magistrate and thereafter, he investigated the patient and confirmed of her consciousness that she was able to answer the Dying Declaration. This doctor has also supported the endorsement by it on Yadi, Exh.33. Therefore, it was very clear that before recording Dying Declaration, Exh.40 by the Executive Magistrate, he had inquired from the doctor concerned, who was treating the patient and the same doctor also before passing the endorsement below Exh.33 on an Yadi, investigated the patient and found that she was conscious and fit to answer the questions relating to Dying Declaration and thereafter, he passed such an endorsement of her consciousness and fit to answer the question. The Executive Magistrate has also confirmed said aspect of her consciousness and fitness of mind before recording the Dying Declaration. The ASI - Naranbhai Mahadevbhai, who has recorded the complaint of Gauriben, Exh.30 has also found that the patient was completely conscious and thereafter, he has recorded the complaint as per the instructions of complainant - Gauriben. Dr. Kamleshbhai Pitamberbhai, who was serving as Medical Officer in Civil Hospital at Mehsana has also clearly opined that when the patient i.e. Gauriben was transferred from Becharaji C.H.C. to Civil Hospital, Mehsana, patient was investigated by him and found that she was completely conscious and thereafter, had started the treatment. Only because thumb impression of the complainant i.e. Gauriben was not identified in the Dying Declaration, Exh.40 or in complaint, Exh.30 by the Executive Magistrate or by the ASI, would not create any doubt in the mind of the court that there is any lacuna in prosecution case because both the witnesses have clearly stated in their depositions before the court that thumb impression was put by the complainant/deceased in their presence in respective documents i.e. Dying Declaration, Exh.40 and complaint, Exh.30 in their presence. Both of them have made their signatures in both the documents after recording the Dying Declaration as well as complaint. The fitness of mind as well as consciousness of the deceased were also checked by three different witnesses of the prosecution before recording Dying Declaration as well as the complaint. When the Executive Magistrate himself has confirmed her fitness of mind and consciousness plus it was supported by Dr. The fitness of mind as well as consciousness of the deceased were also checked by three different witnesses of the prosecution before recording Dying Declaration as well as the complaint. When the Executive Magistrate himself has confirmed her fitness of mind and consciousness plus it was supported by Dr. Kamleshbhai Pitamberbhai in Yadi, Exh.33, there cannot be any room of doubt against the case of the prosecution, saying that she was not fit or able to answer the questions, as she had received more than 95% burn injuries over her body. The prosecution has also examined Kantilal Ratilal Solanki, PW-13, who is maternal uncle of deceased - Gauriben, Kishorbhai Ratilalbhai Solanki, PW-14, who is also maternal uncle of deceased - Gauriben. Both these witnesses to some extent have stated that there was some ill-treatment and dowry demand made by the accused to deceased - Gauriben. The issue of illtreatment or dowry demand would never be required to be considered, as it is not the case of the prosecution from the beginning of any ill-treatment or dowry demand from the accused. Whatever the statement was made by the deceased in her Dying Declaration, Exh.40, no further evidence of intention of the accused was sought to be proved by the prosecution of alleged affair with the girl of Prajapati community as declared in the Dying Declaration. Dr. Rameshbhai Maganbhai Shah, who was also a Medical Officer in Civil Hospital, Mehsana, on 29.6.2011, had performed P.M. Note vide Exh.50. He has also described the burn injuries received by the deceased. As per his opinion, cause of death was 'hypovolemic shock due to extensive burns'. The P.M. note was produced vide Exh.51. He has opined that the burn injuries were sufficient to cause death. The Investigating Officer Shri Harshadkumar Bhanushankar Dave, PW-16, has also supported the entire prosecution case in his deposition before the court below. On 11.8.2011, he had received investigation of this offence. In the case of Laxman (supra), Hon'ble Supreme Court of India has held that there is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate, there is no specified statutory form for such recording. Evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. Evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. 8. Here also, from the record, Dr. Kamleshkumar Pitamberbhai was satisfied with the fitness of mind of the deceased so also the Executive Magistrate and ASI. The Executive Magistrate has recorded the Dying Declaration after confirming her fitness and consciousness. The Dying Declaration appears to be voluntary and truthful and therefore, it cannot be doubted by the court. The doctor has also certified the consciousness and fitness of mind in Yadi, Exh.33 before recording the Dying Declaration upon his investigation. The Executive Magistrate has categorically stated in his evidence, indicating the question 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. 9. For the foregoing reasons, it cannot be said that any illegality or error was committed by the learned Addl. Sessions Judge, Dhangadhra in convicting the accused under the offence. Hence, this Criminal Appeal fails and the judgment and order dated 25.4.2011 passed by learned Addl. Sessions Judge, Dhangadhra in Sessions Case No.23 of 2011 is hereby ordered to be confirmed. R & P be sent transmitted back to the concerned Trial Court.