JAIN, J. - (1.)THIS appeal has been filed against the judgment of the Additional Sessions Judge, Nohar (Sri Ganganagar) dated April 17, 1986 by which the accused-appellant has been convicted under section 302, I. P. C. and sentenced to undergo life imprisonment and to pay a fine of Rs. 200/- failing which to further undergo simple imprisonment for two months. The facts of the case giving rise to this appeal may be summarised thus.
(2.)THE deceased Pushpa daughter of Sita Ram P. W. 1 was married with Subhash, resident of Bhadra (Sri Ganganagar ). In the morning of May 16, 1984, she received serious burns. She was seen by Dr. Mahavir Prasad P. W. 2 of the Government Hospital, Bhadra. He sent Note Ex. P/8 to the S. H. O. , Bhadra, intimating about her admission in the hospital in serious condition. THE later requested the former to examine her medically and to intimate whether she was in a position to give her statement vide his letter Ex. P/9. It was returned with the note on its back "she was admitted in the hospital at 12. 45 P. M. she has extensive deep burns. . . . she is semi conscious,. . . she is speaking and she can give statement. " THE same day, the S. H. O. , Bhadra Richpal Singh P. W. 4 recorded her statement Ex. P/1 at 1. 20 P. M. On its basis F. I. R. Ex. P/18 was registered at 1. 30 P. M. under section 307, I. P. C. THE S. H. O. requested Damodar Mishra P. W. 6 Munsif-cum Judicial Magistrate, Bhadra for recording her statement under section 164, Cr. P. C. vide letter Ex. P/19. He recorded her statement Ex. P/20 at 1. 50 P. M. the same day. In both these statements Ex. P/l and Ex. P/20, she disclosed that the accused appellant Ram Dulari @ Douli had poured kerosene oil and set fire by lighted match stick on her body. On May 23, 1984, she died in the Government Hospital, Bhadra and her post-mortem examination was conducted by Dr. Mahavir Prasad P. W. 2. After necessary investigation, a challan was filed under Section 302, I. P. C. against the accused Douli in the court of the Munsif and Judicial Magistrate, Bhadra who committed her to the court of the Additional Sessions Judge, Nohar and charge under Section 302, I. P. C. was framed against her. THE prosecution examined Sita Ram P. W. I (father of the deceased Pushpa), Dr. Mahavir Prasad P. W. 2 who attended her in serious condition, Dr. Brij Mohan P. W. 3 who certified on May 16, 1984 that she was in a fit position to give her statement and conducted post-mortem examination after her death on May 23,1984, the investigating officer Richpal Singh P. W. 4, A S. I. Surajpal P. W. 5 who drew the F. I. R. Ex. P/18 on the receipt of the statement Ex. P/l of Pushpa and Sri Damodar Mishra P. W. 6, Munsif and Judicial Magistrate, Bhadra who recorded her dying declaration Ex. P/20/. THE prosecution has also tendered and proved 20 documents. In her statement recorded under section 313, Cr. P. C. the accused-appellant Douli @ Ram Dulari admits that she resides with her parents, her in-laws do not keep her and on May 18, 1984 Dr. Brijmohan P. W. 3 examined her sister Pushpa (not deceased) and brother Dharam Chand and found burns on their person. THE remaining prosecution evidence has either been denied or staled to be false. In her defence she has produced her brother Dharam Chand D. W. 1 and cousin Om Prakash DW 2.
It has been contended by the learned counsel for the accused-appellant that the deceased Pushpa committed suicide, her death was not homicidal and after receiving serious burn injuries she became unconscious and was not in a position to give statements Ex. P/1 and Ex. P/20. He further contended that the dying declarations Ex. P/1 and Ex. P/20 are not consistent, they do not inspire confidence, they are suspicious documents, they are not voluntary and there is no evidence on record to corroborate them. He also contended that bed head ticket has not been produced and no kerosene oil was found on her burnt cloths on chemical examination. He further contended that the accused-appellant Douli is lean and thin lady of 45 Kilograms in weight and deceased Pushpa was a healthy and stout woman having weight of 65 Kilograms, it was highly improbable for the appellant to have set fire on the deceased Pushpa and no motive has been proved. He lastly contended that the learned trial Judge has not properly appreciated the evidence on record and he has wrongly discarded the evidence of the defence witnesses Dharam Chand D. W. 1 and Om Prakash D. W. 2. He has placed reliance on Balak Ram and another v. State of U. P. (1), K. Ramachandra Reddy and another v. The Public Prosecutor, (2), Kishore v. State of Rajasthan (3) and S. D. Soni v. State of Gujrat

The learned Public Prosecutor duly supported the judgment of the learned Additional Sessions Judge, Nohar.

It is well proved from the overwhelming oral and documentary evidence on record that deceased Pushpa died due to deep and extensive burns on her body. It is not the case of either party that she received these burns in an accident.

The question for consideration in this appeal is whether the death of Pushpa was homicidal or suicidal and who caused it if it was homicidal. Admittedly, the prosecution has not produced any eye-witness. It has relied upon her oral dying declaration made to her father Sita Ram P. W. I in the Government Hospital, Bhadra and the written dying declarations Ex. P/l recorded by the S. H. O. , Bhadra Richpal Singh P. W. 4 and P/20 recorded by Sri Damodar Mishra, Munsif-cum-Judicial Magistrate, Bhadra. In her statement recorded under section 313, Cr. P. C. the accused-appellant has said nothing on this aspect of the case. She has produced her brother Dharam Chand D. W. 1 and cousin Om Prakash D. W. 2. They have deposed that the deceased Pushpa told that she had herself set fire on her body.

(3.)THE first objection raised against the said oral and written dying declaration is that Mst. Pushpa (deceased) was not in a fit condition to give them. Sita Ram P. W. 1 has deposed that Pushpa was in a fit condition when she gave the said oral dying declaration to him and the S. H. O. asked the doctor before him whether Pushpa was in a position to give her statement, the latter gave reply in affirmative and her statement Ex. P/l was recorded by the S. H. O. in his presence. In the cross-examination, she has disclosed that his daughter Pushpa was painfully groaning that fire had been set to her. Dr. Mahavir Prasad P. W. 2 has deposed that on May 16, 1984 he was posted as Civil Assistant Surgeon in the Government Hospital, Bhadra, on that day, he intimated the S. H. O. , Bhadra that he had seen Pushpa wife of Subhash resident of Ward No. 8, Bhadra, she had received 70% burn injuries, she was unconscious and the attendant of the patient had been advised to go to Civil Hospital, Hissar for treatment vide his letter Ex. P/8. THE note given on it shows that it was received by the Police Station, Bhadra at 10. 40 A. M. THEreon, the S. H. O. sent letter Ex. P/9 to the Medical Officer, Government Hospital, Bhadra to know whether Pushpa was in a fit condition to give her statement. This letter was returned in original with the following reply on its back : " Smt. Pushpa W/o Subhash age 22 Yrs. Mahipal Agrawal R/o Bhadra. Admitted in the Hospital at 12. 45 dated 16. 5. 84. She has extensive deep burns on her person about 75% of her body surface area burnt (except both legs below knee joint-Buttock few area. Back of abdomen, perineum scalp in partially burnt ). Her injury is grievous in nature caused by burn. She is in severe agony of pain. General condition is poor. She is semi-conscious. Pulse, B. P. not recordable. She is speaking. She can give statement. " Dr. Mahavir Prasad P. W. 2 admits that this note was written by him and it bears his signature. Dr. Brijmohan P. W. 3 is the Incharge Medical Officer of the Government Hospital, Bhadra. He has also deposed that the letter Ex. P/9 was received from the S. H. O. , Bhadra, the said note was written in his presence by Dr. Mahavir Prasad P. W. 2, it bears the signature of Dr. Mahavir Prasad and also his signature. In their statements on oath, both these doctors have stated that Mst. Pushpa was in a fit condition to give her statement and her statement was duly recorded in their presence by the Magistrate. THE S. H. O. , Bhadra Richpal Singh P. W. 4 has deposed that Pushpa was in a fit condition to give her statement and, accordingly, he recorded her statement Ex. P/l faithfully, Munsif-cum-Judicial Magistrate, Bhadra Sri Damodar Mishra P. W. 6 has deposed that he went to Government Hospital, Bhadra at 1. 40 P. M. on May 16, 1984 to record the dying declaration of Mst. Pushpa and at that time she was in a position to give her statement. In the cross-examination, he has disclosed that he duly enquired from the doctors of the Government Hospital about her condition to give her statement and they told that she was in a position to give her statement. THE dying declaration Ex. P. /20 recorded by him mentions that Dr. Mahavir Prasad P. W. 2 and Dr. Brij Mohan P. W. 3 were also present at that time. Nothing damaging could be elicited out in the cross-examination of the aforesaid prosecution witnesses particularly Dr. Mahavir Prasad P. W. 2, Dr. Brij Mohan P. W. 3, Richpal Singh P. W. 4 and Damodar Mishra P. W. 6. THEre is no reason to doubt or disbelieve their testimony. THEy arc independent witnesses. THEir testimony is corroborated from the statements of the defence witnesses Dharam Chand D. W. 1 and Om Prakash D. W. 2. THEy have not said that Smt. Pushpa was not in a fit condition to give her statement or she remained unconscious in the Govt. Hospital, Bhadra from the time of her admission till her death. On the contrary, they stated in their examination-in-chief that they enquired from her as to why she set fire on her body and she replied that she was tired with her life. In Suresh v. State of M. P. (5), the deceased Lachhi Bai had received 100% burns of second degree and it has been observed in paras 6 and 7 as follows : " THE only point that has been urged by the learned counsel appearing on behalf of the appellant is that the dying declaration which was recorded by Dr. Bhargava should not be relied upon inasmuch as at the time when the dying declaration was stated to have been recorded by her, Lachhibai was sinking and was unable to make any statement. Our attention has been drawn by the learned counsel to the post-mortem report of Dr. Bhargava. It is submitted that in view of the serious injuries sustained by Lachhibai on account of the burns, she must have been in an unconscious state at the time her dying declaration was stated to have been recorded. We are unable to accept the contention. Dr. Bhargava had examined Lachhibai. According to her Lachhibai was in a fit state of health to make a declaration. Indeed, her evidence is that when she recorded the dying declaration of Lachhibai, she was capable of deposing and was in her senses. She further stated that when she was recording her dying declaration, "she had started going into coma. "
It has been observed in State of U. P. vs. Chet Ram (6) as follows: " The entire edifice of suspicion raised by the High Court has its foundation on the stray answer of PW5 in cross-examination that when he was at Kishori's house, he found her lying unconscious. As already stated, even if his statement was a truthful one, Kishori could have overcome her momentary loss of consciousness and regained her consciousness within a few minutes and thereafter told PW 8 at her house and later PW 6 at the Police Station as to who her assailants were and how the occurrence had taken place. Once it is held that Kishori would have been fully conscious when she made the statement under Ex. Ka3 then it merits acceptance as her dying declaration, it is needless to say, does not require any corroboration as in the case of an accomplice or a confession vide Khushal Rao v. State of Bombay (AIR 1958 SC 22 ). Mr. Garg referred to the decisions in Madman Meher v. State of Orissa (1981 SCC (Cri) 362) and Darshan Singh v. State of Punjab (AIR 1983 SC 554) to contend that since Kishori had sustained 16 external injuries and several internal injuries as well, she could not have made the statement Ex. Ka 3 and hence the statement cannot be believed and acted upon as dying declaration. There is no merit in the contention because the observations of this Court in the two cases mentioned above were rendered under circumstances vastly different. In the former case, the doctor had ruled out the possibility of the victim being conscious and making a statement while in the latter, it was noticed that the vital organs had been smashed. Such is not the case here and on the contrary the medical evidence fully supports the prosecution case. "

It is thus well proved from the evidence on record that the deceased Pushpa was in a position to give her statement when her said dying declaration Ex. P/1 and Ex. P/20 were recorded. The facts of Balak Ram v. State of U. P. (supra) and S. D. Soni v. State of Gujrat (supra) relied upon by the learned counsel for the accused-appellant are quite different and distinguishable. The first case was not a case of burning but it was a case of poisoning. In the second case, the investigating officer made a note in his police diary about the dying declaration and did not even get it signed by the declarant and attested by two witnesses. In the instant case, on the basis of the statement Ex. P/l, the case was registered under Section 307, I. P. C. , it is attested by Sita Ram P. W. I. Her signature and thumb impression could not be taken as her hands were badly burnt.