Ashok Kumar Mathur, J.

1. This is an appeal against the judgment of the learned Sessions Judge, Balotra dated 29-4-1981 convicting the accused appellant under Section 302 I.P.C. and sentencing him to life imprisonment with a fine of Rs. 1.000/- and in default of payment of fine to further undergo rigorous imprisonment for six mouths.

2. The facts giving rise to this case that on 6 10-1980 Dr. Harish Bafna, Incharge Government Hospital, Siwana informed the Station House Officer, Police Station, Siwana on telephone that one Smt. Bhagwati had received the burns and is in very serious condition. She was found in a serious condition in Quarter No. 8. Thereafter Smt. Bhagwati Devi was brought to Hospital on a stretcher for medical aid. The Munsif and Judicial Magistrate, Siwana was also summoned and he recorded the dying declaration Ex. P 4 of the deceased. She in her dying declaration has deposed that her husband sprinkled kerosene on her and set-fire in order to kill her. On the basis of this dying declaration a case under Section 302 I.P.C. was registered against the accused and after close of the investigation the accused was committed to the Court of Sessions for trial under Section 302 I.P.C. The prosecution examined 10 witnesses whereas the defence examined three witnesses. A large number of documents were also got exhibited. The plea of the accused was of denial and he stated in his statement under Section 313 Cr. P.C. that when he smell of kerosene he rushed to the room but found that the doors were closed from inside. Thereafter he pushed his way by break opening the bolt of the doors. There he found that his wife was burnt. He tried to extinguish the fire by water. He further stated that she was a quarrel some lady and she herself committed suicide. The learned Sessions Judge after recording the evidence and hearing both the parties found that the dying declaration of the deceased appears to be trust worthy and reliable. Therefore, he convicted the accused appellant under Section 302 I.P.C. and sentenced him to lire imprisonment.

3. Aggrieved against his conviction and sentence the accused appellant has preferred the present appeal before this Court.

4 During the course of arguments, it was felt necessary that some expert should also be again summoned & for that purpose a request was made to the Principal, S.N. Medical College, Jodhpur to depute some Professor to assist the court. The Principal, S.N. Medical College, Jodhpur deputed Dr. Harbans Singh, Professor in Surgery, S.N. Medical College, Jodhpur and his statement was recorded on 16-2-1987. Thereafter, the accused was summoned and his statement was put to him.

5. Mr. Purohit, learned Counsel for the appellant has contended that the dying declaration recorded by the learned Magistrate is wholly unreliable and according to the injuries received by her she was incapable of speaking. Learned Counsel submitted that this was a plain and simple case of suicide by the deceased as she was not happy with her husband and the case of suicide has been made out a case of homicide and her husband has been roped in the case falsely. Learned Counsel has also challenged the testimony of PW 1 Badri Prasad and PW 2 Birdichand. He has also seriously challenged the testimony of PW 4 Dr. Harish Bafna and a serious criticism were also levelled regarding the manner of recording the dying declaration.

6. The crucial question in the present case is that whether the deceased was capable of giving the dying declaration or not. The incident is said to have taken place on 6-10-1980 at about 9 a.m. in the quarter No. 8 of the Panchayat Samiti, Siwana, where the accused was employed. PW 1 Badri Prasad Garg, who is the nearest neighbour has deposed that on the fateful day when he was coming from the hospital to his quarter he saw fire and smoke coming out from the ventilator of quarter No. 8 of the accused. The doors were closed and only the ventilator was open. Thereafter he went to quarter No. 8 and knocked the doors. The doors were boiled from inside. Inspite of his repeated knocking on the doors were not opened. Thereafter he forced open the door and got inside the house. He saw that the accused was standing and holding one pitcher in his hand. He does not know whether that Contained water or not. The deceased was lying up-side down in a naked condition and was burning. The burnt clothes were sticking to her body and most of the body was naked. At that time she was alive and groaning with pain. Thereafter he called some more persons of that locality. He left Bherulal and Vijay Shanker in the quarter and he along with Birdi Chand rushed to the Doctor. Dr. Harish Bafna, PW 4 was brought in the quarter and he immediately asked to remove her to the hospital. Thereafter necessary treatment was given to her. This version is duly supported by the testimony of PW 2 Birdi Chand also. PW 4 Dr. Harish Bafna has also deposed that he reached the quarter No. 8 and found that the deceased was lying on the floor and was in great agony. He immediately got her shifted to the hospital and took up the treatment. She was speaking some words which were not very decipherable. He further deposed that he also informed the police and he also personally called the Magistrate. Meanwhile, necessary treatment had already been given to patient. He has further deposed that the Magistrate before recording her dying declaration has satisfied himself about the condition of the patient. She was conscious though she was in great agony. He further deposed that she had 90% burns But conscious to make a statement and she was speaking slowly. Thereafter the deceased died at (sic).30 p m. on the same day. PW 3 Shri Ram Swaroop, Munsif Magistrate who has recorded the dying declaration has also come into the witness-box and proved the dying declaration Ex. P 4. He deposed that on 6-10 1980 at about 9.30 a.m. Dr. Harish Bafna, PW 4 came on his motor cycle to his house and informed him that a dying declaration has to be recorded. He accompanied Dr. Harish Bafna on his motor cycle and he informed him about the impending danger to the life of Smt. Bhagwati Devi. He deposed that he immediately leached the Hospital and asked her the questions about the incident and whatever she has deposed was reduced in writing in Ex. P 4. PW 3 has further deposed that before recording the dying declaration he asked the Doctor whether the patient is in a condition to give the dying declaration and he himself talked with the patient and it was found that she was conscious. Therefore, it was apparent that the deceased was conscious and in a condition to give the dying declaration. He has further deposed that after satisfying himself that she is conscious and is in a condition to give the dying declaration he recorded the dying declaration Ex. P 4A (81) of the deceased.

7. Mr. Purohit, learned Counsel for the appellant submitted that Badri Prasad is not a reliable person and according to him this witness has not faithfully given out the version of the incident After going through the testimony of Badri Prasad we do not find any infirmity in his statement. According to the version given out by him he was the first person who has reached at the scene of occurrence and he broke open the door to find out the cause of fire and smoke. He has faithfully deposed what he saw regarding the condition of the deceased and position of accused standing there with bucket. Testimony of this witness is duly supported by the testimony o(sic) PW 2 Birdi Chand, UDC of the Panchayat Samiti and a neighbour. Thus, we do not find and infirmity with the testimony of this witness.

8. Mr. Purohit, learned Counsel for the appellant has strenuously urged that after receiving 30% burns the deceased was incapable of giving any dying declaration. The condition of the deceased as described by Dr. Bafna was that the face was swollen, tongue was swollen and eroded at tip and sides, lips were swollen and hanging. Remaining body was not swollen. There were no formation of blisters, but sooty blackening of parts were seen. The superficial skin at places has been found missing. There was also smell of kerosene oil in the clothes which were half burnt. The hair on the front of scalp are burnt but those lying on back i.e. occipital area were signed. The whole body has assumed a defensive, pugilistic position. He has further deposed that the burns were severe and more than 90%. In the opinion of the Doctor the cause of death was shock and suffocation due to severe degree of burns. It has been submitted that in such a state of condition the deceased was incapable of speaking as her lips were swollen and hanging, her tongue was swollen and eroded at tips and sides. Dr. Bafna has deposed that inspite of this nature of burns she was speaking but very slowly and the testimony of Dr. Bafna has already been supported by the Magistrate, who has reached at the hospital for recording the dying declaration. He has also deposed that Dr. Bafna certified that the deceased was conscious and in a position to give the dying declaration. This was further established that in his presence when Dr. Bafna talked to the deceased she was in a position to speak. Thereafter, he (Magistrate) proceeded to record the dying declaration In view of the categorical statement of Dr. Bafna which is supported by the Magistrate, it is difficult to accept the contention of Mr. Purohit that in such a state of condition the deceased was incapable of speaking. Dr. Bafna who attended the deceased has deposed that she was conscious and the same is supported by the Magistrate PW 3 who recorded the dying declaration it is difficult to accept that both these witnesses are not reliable. Both are independent witnesses, one of them attended the deceased soon after the burning and the other has recorded the dying declaration within one hour. But in order to be more sure Dr. Harbans Singh was summoned as a court witness for expert opinion. He has deposed that looking to the condition of the patient she was capable of speaking. Mr. Purohit, learned Counsel for the appellant could not dislodge the testimony of this expert witness. Mr. Purohit has also invited our attention to the text books on Medical Jurisprudence by Modi, Lyon, Raju & Jhala and Taylor. But no authentic account is found in these text books that whether in such burns the condition of the patient is capable of speaking or not. Mr. Purohit has also invited our attention to K. Ram Chandra Reddy and Anr. v. The Public Prosecutor : AIR 1976 SC 1994 where it was observed that undoubtedly the dying declaration is admissible under Section 32 of the Evidence Act, but such a statement not being on oath can not put to be cross-examined. The courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon such a statement. Learned Counsel has also invited out attention to Darshan Singh and Ors. v. State of Punjab AIR 1985 SC 554. In this case, the dying declaration was not accepted because according to the evidence on record it was found that after receiving a fatal How to the vital organs of the body the deceased was incapable of speaking.

9. Recently, their Lordships of the Supreme Court in Suresh v. State of M.P. 1987 (1) SLR 51 in almost identical circumstances has accepted the dying declaration on the testimony of the Doctor. There also the accused poured kerosene on the deceased and set fire. The deceased received extensive burnt injuries and her condition was said to be serious She was removed to the hospital as she has sustained 100% burns. But she was conscious and her condition was serious, Dr. Bhargava recorded her dying declaration and the same was accepted and the conviction of the accused was upheld.

10. But having regard to the fact that PW 3 Ram Swaroop, Magistrate and Dr. Harish Bafna, PW 4 who immediately attended the deceased, have deposed that the deceased was conscious and in a fit condition to give a dying declaration it is difficult to accept the contention of Mr. Purohit that the deceased was incapable of giving such a dying declaration.

11. Since we have found that the dying declaration Ex. P 4 given by the deceased is reliable and trust worthy therefore there is no hesitation in affirming the conviction of the accused appellant.

12. Our attention was also invited to the plea of the accused and the evidence of the defence witnesses to show that the relations between the husband and the wife were strained and it has been pointed out that earlier also she had made similar attempts while residing with her husband. But recently the father of the deceased has left the girl to the house of the accused and assured that she will be have properly. Thus, it is submitted that on account of strained relations she might deliberately be deposing against the accused. We have bestowed our consideration to this contention of the learned Counsel also and we are of the opinion that it is unbelievable that in such a pain and agony she will falsely implicate the accused. The conduct of the accused that he did not make any effort to rescue the deceased, or ask for help negatives the contention of the learned Counsel. It has also been argued that the accused had also received injuries as he broken open the room where the deceased burnt herself. The nature of injuries received by the accused is wholly superficial and there are no burnt injuries on his body. If the accused was genuinely concerned he could have made all the efforts to extinguish the fire and in that he could have received the burnt injuries. But that is not so. Thus, he conduct of the accused that he did not ask for the help nor did he open the door when it was knocked repeatedly from out side by Badri Prasad nor did he make any efforts to extinguish the fire negatives the contention of Mr. Purohit.

13. In the result, we do not find any merit in this appeal and the same is dismissed. The conviction and sentence of the accused appellant is affirmed.