JUDGMENT : (per Ms. Ritu Bahri, C.J.) The appellant Laxman Tiwari @ Pankaj Tiwari, has come up in the appeal against the judgment dated 18.04.2014, passed by the 1st Additional Sessions Judge, Rishikesh, whereby the appellant has been convicted under section 302 of IPC, for life imprisonment and a fine of Rs.10,000/-, has been imposed causing a death of Smt. Geeta Shankar, wife of the complainant Sri Mani Shankar. 2. The complaint was lodged on 23.09.2011, at Police Station Rishikesh that on that day at 10:30 AM, he received the message that the fire is set in his house and his wife is burnt, and when he came up in the house his wife was burnt I immediately took her to hospital in THDC ambulance. On the way his wife informed him that the appellant had poured fuel upon her and set fire. After registration of the FIR, the investigation was carried out and charge-sheet was submitted before the Chief Judicial Magistrate, Dehradun, and thereafter the case was referred to the court of Sessions Court on 03.01.2012. On 09.04.2012, the charges under Section 302 of IPC against the appellant Laxman Tiwari @ Pankaj Tiwari, was framed, and the accused denied the charges. 3. The prosecution for proving the charges against the accused documentary evidence complaint exhibit kl, information of death exhibit k2, statement of deceased before death exhibit k3, panchayatnama exhibit k4, statement of deceased exhibit k5 statement of identifier exhibit k6, OPD slip exhibit k6, history slip exhibit k7, post-mortem exhibit k8, recovery report exhibit k9 and k10, forensic report exhibit k11, arrest memo exhibit k12, information memo exhibit k13, map of incident exhibit k14, charge sheet exhibit k15, and chick FIR exhibit k16. 4. From the prosecution the oral evidence PWI Manishankar, PW-2 Suresh Kumar, PW3 Smt. Snehlata Sharma, PW-4, Shivam Shankar, PW-5, Dr. Mohammad Shoeb, PW-6, Dr. NK Mishra, PW-7, SI Rajesh Shah, PW-8, Dr. Atul Gupta, PW-9, Shri Jagmohan Sharma, PW-10, Shri Digpal Singh Kohli, PW-11, Inspector Ravindra Kumar Chamoli were examined and prosecution completed its evidence. 5. After completion of evidence the statement of accused were recorded under section 313 of criminal procedure code, in which the accused deposed that the case is false and fabricated and further deposed that he would submit his defence evidence. The defence examined DW 1 Shri Sandeep Gupta and DW 2 Sri Chandrapal Singh. 6. 5. After completion of evidence the statement of accused were recorded under section 313 of criminal procedure code, in which the accused deposed that the case is false and fabricated and further deposed that he would submit his defence evidence. The defence examined DW 1 Shri Sandeep Gupta and DW 2 Sri Chandrapal Singh. 6. In the present case, the investigation was done by the Investigating Officer with regard to the death of Smt. Geet Shankar, and before the death of the deceased Geet Shankar, Km. Khushboo, died. However, no investigation was done for the death of Km. Khushboo, and in this backdrop evidence has to be evaluated with respect to the charges levelled pertaining to the death of Geeta Shankar. 7. The prosecution examined PW 1 Manishankar, husband of the deceased PW 4 Shivam Shankar, son of the deceased, and the consistent evidence given by both the said witnesses was that the deceased Geeta Shankar had informed them in the ambulance the accused/appellant had poured fuel upon her and set on her fire. When Geeta Shankar was taken to the hospital her dying declaration was recorded by the Tehsildar PW 2 Sri Suresh Kumar. The witness who is present at the time of recording the statement of Geeta Shankar is PW 3 Smt. Snehlata Sharma, who stated that the Police had recorded the statement of Geeta Shankar in her presence along with other, and thereafter the statement of the deceased was recorded by the Tehsildar concerned in the closed room. 8. PW 2 Naib Tehsildar Sri Suresh Kumar and PW 5 Dr. Mohammad Shoeb, Medical Superintendent, Nirmal Hospital Rishikesh, gave the statement that the statement of Geeta Shankar was taken before her death and the PW5 Doctor, gave certificate to the effect that patient is in the sound state of mind of giving the statement. PW 7 SI Rajesh Sah, who has conducted the investigation with PW 10 Digpal Singh Kohli, PW11 Inspector Ravindra Kumar Chamoli, SI Sri Devendra Singh Rawat and SI Sri O.P. Bhatt, and they had gone to the place of occurrence where things were burnt and spread here and there. They went to the place of occurrence and in the presence of PW 9 Sri Jagmohan Sharma and PW10 Sri Dhyan Singh, took the possession of the burnt articles and sealed and prepared a report. They went to the place of occurrence and in the presence of PW 9 Sri Jagmohan Sharma and PW10 Sri Dhyan Singh, took the possession of the burnt articles and sealed and prepared a report. After preparing the report, the witnesses have also signed who were residing in the neighbour. The report is Exhibit K9. Further in the presence of these two witnesses PW 9 Sri Jagmohan Sharma and PW10 Sri Dhyan Singh one empty bottle of aluminium phosphoid was recovered from the stair, which were going towards the place of occurrence and sealed. He recorded the statement of Geeta Shankar in the presence of Smt. Snehlata Sharma, Sandeep Gupta and Dr. Shoeb, and Smt. Geeta Shankar, deposed that on 23.09.2011 Laxman Tiwari, entered in her house and poured acid upon her and set fire in the house. She informed that earlier also the appellant threatened her. In the statement given by Geeta Shankar, who was shown to be the witness and verified and signed by the PW7 SI Rajesh Sah, and this witness further stated that as per the FIR, the complainant Manishankar, had shown his wife and his daughter admitted in the Nirmal Hospital, and during the investigation the people did not tell how the fire was set and told that after hearing hue and cry they reach to place of occurrence. 9. The prosecution witness PW 8 Dr. Atul Gupta, who had done the post-mortem of the deceased Geeta Shankar, and deposed in his statement that on 26.09.2011, he did the post-mortem of Geeta Shankar, and during inspection there were burnt injuries present and 70% body was burnt, and the following part the body was not burnt:- Left side breast and stomach, both legs front part and partially both hand and few part of hair on head. There was no other injury. The burned portion infected. In inside inspection the stomach membrane was blooding. The cause of death as due to burn. During the course of cross examination before post mortem there was bandage in the body of deceased. The body of deceased was burnt up to updramical and dyumise. If it is burnt the internal part of body gets affected. 10. The burned portion infected. In inside inspection the stomach membrane was blooding. The cause of death as due to burn. During the course of cross examination before post mortem there was bandage in the body of deceased. The body of deceased was burnt up to updramical and dyumise. If it is burnt the internal part of body gets affected. 10. In the present case, the lower court proceeded to examine the dying declaration Exhibit K3, is the statement of the deceased before her death, Exhibit K4 Panchayatnama and the statement of the deceased Exhibit K5, the dying declaration is Exhibit K3 and the statement was taken by the Tehsildar before her death and in this statement reference has been made to the Dr. Mohd. Shoeb, who has certified that the deceased was brought in the burnt condition and before giving the statement she was in a fit statement of mind, and in the dying declaration she has further stated that she was burnt by appellant Laxman Tiwari by match stick, and in this backdrop, the appellant had committed the offence. The statement of Geetashankar was taken in the presence of Smt. Snehlata Sharma, Sandeep Gupta and Sri Sanjay Shashtri, which is Exhibit K8 in the record. As per the dying declaration, she deposed on 23.09.2011 she was taking bath and her daughter was on the roof and accused in his hand brought acid in a plastic mug and poured upon me and set fire and to protect myself I try to put interlock but he poured acid and set fire and ran away, and before this the appellant threatened her. The other persons who were with him I do not know my daughter Khushboo can tell. The statements given by the deceased are K3 and K5. The Tehsildar has appeared as PW 2 Sri Suresh Kumar, the PW 5 Dr. Mohd. Shoeb and witness PW 3 Smt. Snehlata Sharma had deposed that at the time of the recording the dying declaration that she made a statement when she was in complete sense. 11. Keeping in view the above evidence, the lower court had rightly come to the conclusion that dying declaration has made in the complete sense when the deceased Geeta Shankar was in fit state of mind to give the statement, and her dying declaration cannot be discarded to make a case doubtful in favour of the accused. 12. 11. Keeping in view the above evidence, the lower court had rightly come to the conclusion that dying declaration has made in the complete sense when the deceased Geeta Shankar was in fit state of mind to give the statement, and her dying declaration cannot be discarded to make a case doubtful in favour of the accused. 12. In the present case Smt. Khushboo, daughter of the deceased Geeta Shankar was serious and she was taken to Nirmal Hospital Rishikesh in ICU, where she passed away before her mother. The Investigating Officer has not made any effort to show that at the time of the incident Km. Khushboo, was in a fit state of mind. However, non recording of the dying declaration of Km. Khushboo, the benefit cannot be given to the accused. The lower court has rightly held that in the absence of the recording of the statement of Km. Khushboo before she died, the entire evidence collected by the prosecution cannot be discarded and rightly so by referring to the judgment Criminal Appeal No.31 of 2013. “Hema Vs. State”, by learned Three Judge Bench dated 07.01.2016. 13. The lower court has examined that there was no evidence to show that at the time of the burning the accused has used what type of fuel, at the same time there was evidence available that the accused has poured some fuel on deceased and set her on fire. In this backdrop, even the prosecution witness could not prove that by which fuel the body of the deceased was burnt. This benefit cannot be extended to the accused. 14. Moreover, since there was 70% burnt injuries on the body of the deceased, which has been proved by the medical evidence finding, this Court does not want to interfere with the findings that the nature of the acid after collecting the sample, there was no evidence what type of fuel was poured on the deceased, it will not dent the prosecution evidence, and cannot give the benefit to the accused. This finding cannot require any interference. 15. As regarding the defence witnesses DW1 Sri Sandeep Gupta and DW 2 Sri Chandrapal Singh. From the evidence given by DW1 it transpires that Geeta Shankar had given a call and told him that she was suddenly burn and come and give help in my treatment. This finding cannot require any interference. 15. As regarding the defence witnesses DW1 Sri Sandeep Gupta and DW 2 Sri Chandrapal Singh. From the evidence given by DW1 it transpires that Geeta Shankar had given a call and told him that she was suddenly burn and come and give help in my treatment. The above witness has deposed that Geeta Shankar has neither given any statement to the police in presence and he never stated that Geeta Shankar had informed him the name of Laxman Tiwari/appellant. However, he admitted that she told him that she was suddenly burnt. 16. DW 2 Chandrapal states that at 10:30AM on the date of the incident, she was in front of his house after breakfast, suddenly the noise came from the house of Manishankar, he went to the house and saw Geeta Shankar was burning and he tried to control the fire. He further stated that no name was given by Geeta Shankar nor Manishankar that who has set on her fire. In the cross-examination this witness had admitted that Geeta Shankar in the burning stage and shouting help help. This witness DW 2, further stated that the entry of the THDC gate register is not maintained with respect to two wheelers and the lower court thereafter held that the Geeta Shankar was a social activist and the family of the accused and deceased relations were cordial and accused frequently visiting the house of the complainant and since he was a frequent visitor the gate keeper of the THDC did not enter his name. It is also possible that he might have visited by two wheelers, which is not entered at the gate, and hence the defence taken that his name was not entered in the entry register can lead to the conclusion that he never visited the house on the date of the incident has been rightly rejected and requires no interference. 17. In the dying declaration she has taken the name of the appellant and this fact was proved by PW 3 Smt. Snehlata Sharma, and the name of the accused was also mentioned in the FIR as his name was given by Geeta Shankar while she was going in the ambulance with her husband and her son. The dying declaration was recorded after the certificate was given by the PW5 Dr. Mohd. Shoeb and PW2 Tehsildar Suresh Kumar. The dying declaration was recorded after the certificate was given by the PW5 Dr. Mohd. Shoeb and PW2 Tehsildar Suresh Kumar. Hence, keeping in view the above fact, the lower court has rightly convicted the accused, keeping in view the evidence led by the prosecution. 18. Learned counsel for the appellant has referred to the Hon’ble Supreme Court judgment reported in 1999 (4) Crimes (SC) Page 150, “Paparambaka Rosamma and others Vs. State of Andhra Pradesh” this was a case where the Doctor did not certify that the victim was not in a fit condition to make a statement before recording of the statement, was made basis for acquittal of the accused, as per the opinion given by the Doctor K. Vishnupriya (Devi) PW 10, the injured was in a fit state of mind to make a statement. Further she/injured had sustained 90% burn injuries and while recording the dying declaration Exhibit P14, and as per the certificate given by the Dr. K. Vishnupriya Devi, the certificate stated that “patient was conscious while recording the statement”, however, it did not certify that the victim was in a fit condition to make a statement. Hence, dying declaration Exhibit P14 though was true and genuine, the court was required to draw the distinction between “conscious” and “in a fit state of mind”. Since the Doctor did not certify that the victim was in a fit condition to make a declaration, the Hon’ble Supreme Court held that dying declaration could not be made basis for conviction and the conviction was set aside. This judgment will not be applicable in the facts of the present case. 19. Second judgment of the Hon’ble Supreme Court is reported in 2007 (15) SCC 465 , “Nallapati Sivaiah Vs. Sub-Divisional Officer Guntur”, the Hon’ble Supreme Court was examining the case where the deceased had sustained as many as 63 injuries and as per the evidence given by PW 7 Inspector, the deceased even at 5:30 PM condition was very precarious. PW 10 Professor and Doctor of Forensic Medicine admitted the injuries from 1 to 13 and 19 could have resulted in the deceased going into comma. Even if dying declaration is substantial piece of evidence it has to be proved that same was voluntary and truthful and the victim was in a fit state of mind. Dr. PW 10 Professor and Doctor of Forensic Medicine admitted the injuries from 1 to 13 and 19 could have resulted in the deceased going into comma. Even if dying declaration is substantial piece of evidence it has to be proved that same was voluntary and truthful and the victim was in a fit state of mind. Dr. T. Narasimha Rao, Casualty Medical Officer, who was presented at the time of the recording of both the dying declaration has not been examined, it was the obligation of the prosecution to lead corroborate evidence available in the peculiar circumstances of the case. The Professor of Forensic Medicine & Medical Officer, who conducted the post-mortem and was examined as PW 11. He had found diffused subarchanoid haemmorrhage present all over the brain, which normally results in patient going into comma. He also expressed his opinion that the deceased must have died within one or two hours after receiving the injuries. This vital piece of evidence was inconsistent with the opinion given by the PW 10 – Professor of Forensic Medicine. The evidence given by this Doctor was not consistent with the opinion given by Dr. T. Narasimha Rao, Casualty Medical Officer, who was not even examined. Keeping in view the above said opinion given by the two doctors, which were contrary and the fact that the deceased has sustained as many as 63 injuries and the fact that the injuries could have resulted into the patient going in comma. The Hon’ble Supreme Court acquitted the accused of the charges levelled against him. Even the facts of this case will not be applicable to the present case. 20. Another judgment reported in 2021 (2) Crimes (SC) Page 60, “Naresh Kumar Vs. Kalawati & others”, the appellant, brother of the deceased, had challenged the acquittal of the respondent nos.1 and 2 before the Hon’ble Supreme Court, the respondent nos.1 and 2, were sister-in-law, and husband of the deceased and they had been acquitted of the charges under sections 498A and 302/34 of IPC. The judgment had been affirmed by the Hon’ble High Court. The deceased has suffered 95% burn injuries on 17.09.1991 at about 4:30 PM. The judgment had been affirmed by the Hon’ble High Court. The deceased has suffered 95% burn injuries on 17.09.1991 at about 4:30 PM. There was no eyewitness account, and the case of the prosecution were based only on circumstantial evidence consisting of the dying declaration while recording the dying declaration, there was no evidence about fitness of the mind of the deceased, including the presence of the Doctor. In this backdrop, the veracity and truthfulness of the dying declaration remained suspect, and in this backdrop, the Hon’ble Supreme Court held that it would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents. Even the facts of the case are not applicable here as dying declaration was recorded is not applicable in the present case. 21. Another judgment reported in 2022 (0) Supreme (SC) Page 541, “Uttam Vs. State of Maharashtra”, the Hon’ble Supreme Court was examining the evidentiary value of the dying declaration. There were two written dying declarations of the deceased. One was recorded by the Special Executive Magistrate and another by the Investigating Officer. There was glaring lacunae in the procedure while recording the dying declaration. There were four dying declaration. Two dying declaration in writing and the two dying declaration were oral made by the deceased when she had suffered 95% burn injuries, which create serious doubt about her being mentally and physically fit to gave her statement. Vide judgment dated 29.04.1997, passed by the Additional Sessions Judge, Nagpur, the appellant had been convicted for the offence under section 302 of IPC, and appeal filed by the accused was also dismissed by the Division Bench of the Hon’ble High Court of Bombay at Nagpur Bench. The Hon’ble Supreme Court while examining the four dying declarations, two were in writing and two were oral, allowed the appeal and acquitted the accused on the entire testimony of the PW 2 and PW 12, could not be relied and for conviction of the appellant, the dying declarations were not sufficient evidence for conviction. 22. Another judgment reported in 2022 (3) Crimes (SC) Page 269, “Makhan Singh Vs. State of Haryana”, whereby the appellant had gone on appeal against the judgment passed by the Division Bench of Punjab and Haryana High Court dated 15.05.2009, whereby partly allowed the appeal of the appellant and reduced his sentence from 10 to 7 years. 22. Another judgment reported in 2022 (3) Crimes (SC) Page 269, “Makhan Singh Vs. State of Haryana”, whereby the appellant had gone on appeal against the judgment passed by the Division Bench of Punjab and Haryana High Court dated 15.05.2009, whereby partly allowed the appeal of the appellant and reduced his sentence from 10 to 7 years. However, upheld the order of the conviction. The Hon’ble Supreme Court was examining the two dying declarations, which were totally inconsistent and contradictory to each other. In the first dying declaration the deceased has exonerated the appellant and his family members and the Hon’ble Supreme Court had observed that the second dying declaration could be possible after being tutored by her relatives could not be ruled out. On the basis of the same evidence by giving the benefit of the doubt, the father and mother of the appellant had been acquitted. The Hon’ble Supreme Court held that the benefit of doubt, which has been given to the other accused by the trial court, ought to have been equally given to the other present appellant as the evidence was totally identical against all the three accused. The above said five judgments referred by the learned counsel for the appellant are not applicable to the facts of the present case, as in the present case the dying declaration was recorded by PW 2 Tehsildar Sri Suresh Kumar, and the Doctor PW5 gave certificate to the effect that patient was in the fit state of mind of giving the statement and there were witnesses PW 3 Smt. Snehlata Sharma, who were present at the time of the recording of the statement in the closed room. The deceased in the present case has 75% burnt injuries. 23. In another judgment reported in 2022 (4) SCC 741 , “State of Uttar Pradesh Vs. Veerpal and another”, the Hon’ble Supreme Court was examining the case where there were two dying declaration. First one was recorded by the Investigating Officer making out a case of suicide and the second dying declaration was recorded by the Magistrate clearly implicating the accused. The dying declaration, which was recorded by the Magistrate, there was a mental fitness certificate of the deceased from the physician, who treated the deceased. The dying declaration was recorded by the Sub Divisional Magistrate, who was examined as prosecution witness PW 6, before the trial court. The dying declaration, which was recorded by the Magistrate, there was a mental fitness certificate of the deceased from the physician, who treated the deceased. The dying declaration was recorded by the Sub Divisional Magistrate, who was examined as prosecution witness PW 6, before the trial court. As per his statement, the deceased at the time of the making the statement is fully conscious and capable of understanding the questions put forth by the Officer to whom the declaration was made. The dying declaration was accompanied by the certificate from the physician, who was treating the deceased prior to her death stating that the deceased was fully conscious while making the statement. This dying declaration was recorded on 22.12.2011, the appeal filed by the complainant was allowed and the judgment passed by the Hon’ble High Court acquitting the accused was quashed and set aside. The ratio of this judgment is applicable to the facts of the present case. In paragraph 10.1, 10.2 and 11 of the said judgment, the Hon’ble Supreme Court held as under: “10.1. In Laxman after referring to and considering the earlier decisions on the credibility of the dying declaration recorded by the Magistrate, it was observed that the Magistrate being a disinterested witness and 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. 10.2 In Jagbir Singh this Court had an occasion to consider the law relating to the dying declaration and the problem of multiple dying declarations in detail. It was observed and held that merely because there are two/multiple dying declarations, all the dying declarations are not to be rejected. It was observed and held that when there are multiple dying declarations the case must be decided on the facts of each case and the court will not be relieved of its duty to carefully examine the entirety of the material on record as also the circumstances surrounding the making of the different dying declarations. Ultimately, in paragraph 32, this Court concluded as under: “Our conclusion on multiple dying declarations 32. Ultimately, in paragraph 32, this Court concluded as under: “Our conclusion on multiple dying declarations 32. We would think that on a conspectus of the law as laid down by this Court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a somersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relieved of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered.” Similar views have been expressed by this Court in the case of Ravi Chander & Ors. (supra), Harjit Kaur (supra), Koli Chunilal Savji & Anr. (supra) and Vikas & Ors. (supra). 11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is required to be considered whether the dying declaration recorded by the Magistrate on 22.12.2011 is to be believed or not. Nothing is on record with regard to any allegation against the Magistrate/SDM to the effect that he was biased or interested in recording the dying declaration against the accused. He was summoned during the course of investigation and during the course of investigation he recorded the dying declaration and the statement of deceased. Even the High Court as such has not doubted the credibility of the dying declaration recorded by the Magistrate/SDM on the ground of malice. The reasoning given by the High Court to not rely upon the dying declaration recorded by the Magistrate/SDM is not germane and cannot be accepted. 24. In the facts of the present case, the deceased Geeta Shankar, had 70% burn injuries, as per the post-mortem report proved by PW 8 Dr. The reasoning given by the High Court to not rely upon the dying declaration recorded by the Magistrate/SDM is not germane and cannot be accepted. 24. In the facts of the present case, the deceased Geeta Shankar, had 70% burn injuries, as per the post-mortem report proved by PW 8 Dr. Atul Gupta, at the time of the recording the dying declaration Exhibit K3, the statement was recorded by the Tehsildar in the presence of Doctor Mohd. Shoeb, who had certified that the deceased was brought in burnt condition and before giving statement, she was in a fit state of mind. The statement of Geeta Shankar was made in the presence of Smt. Snehlata Sharma, Sandeep Gupta and Sri Sanjay Shashtri, which is exhibit K8 on the record. As per her dying declaration on 23.09.2011, while she was taking a bath and her daughter was on the roof, the accused came and in his hand there was an acid in the plastic mug, which he poured upon her and set her on fire. He ran away and threatened her. She did not recognize the other two persons with the accused/appellant. The Tehsildar appeared as PW2 Sri Suresh Kumar and PW 5 Dr. Mohd. Shoeb and the witness PW 3 Smt. Snehlata Sharma, and they proved the dying declaration and the fact that she was in a complete state of mind when she gave the statement. 25. The above said evidence as per the judgments of the Hon’ble Supreme Court, referred to above, would not cause any dent to the dying declaration Exhibit K3. Hence, the conviction of the appellant based upon the dying declaration does not require any interference in the judgment dated 18.04.2014 passed by the 1st Additional Sessions Judge, Rishikesh, whereby the appellant has been convicted under Section 302 of IPC for life imprisonment and a fine of Rs.10,000/-.