Criminal Appeal No.169 of 2003

30th June, 2008

Petitioner Counsel: Mr. A. M. GHARE
Respondent Counsel: Mr. N. W. SAMBRE

Cases Cited:
Reg. Vs. Fata Adaji, (1874)11 Bom HCR 247 [Para 9,22]
The Empress Vs. Samiruddin, (1882)8 Cal. 211 [Para 10,22]
King-Emperor Vs. Mathura Thakur, (1902)6 C.W.N. 72 [Para 11,21,22]
Gouridas Nomasudra Vs. Emperor, (1908)36 Cal. 659 [Para 12]
Ghazi Vs. Crown, (1911)17 P.R. 1911 Cr. [Para 13]
In re : Karuppan Samban, 31 IC 359 : (1915)16 Cr.L.J. 759 [Para 14]
Emperor Vs. Balaram Das, AIR 1922 Cal 382(2) [Para 15]
Kaur Singh Vs. Emperor, AIR 1930 Lahore 450 [Para 16]
Krishnama Naicken Vs. Emperor, AIR 1931 Madras 430 [Para 17]
Suraj Bali Vs. Emperor, AIR 1934 Allahabad 340 [Para 18]
Emperor Vs. Somra Bhuian, AIR 1938 Patna 52 [Para 196]
Narbada Devi Gupta Vs. Birendra Kumar, 2004(5) ALL MR 51 (S.C.)=AIR 2004 SC 175 [Para 22]
Dandu Lakshmi Reddy Vs. State of A.P., 1999 ALL MR (Cri) 1784 (S.C.) [Para 22]

JUDGMENT

A. B. CHAUDHARI, J. :- In this appeal, there are two appellants, namely Jivan and his wife Kanta. They were convicted by the trial Court for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentenced to undergo imprisonment for life and pay fine of Rs.1,000/-, in default to suffer rigorous imprisonment for one month.

2. The case of prosecution, in brief, is that deceased Sushila d/o. Haribhau Dhavali and the appellants were neighbours residing at village Hingani (Buzurk) within the jurisdiction of police station Dahihanda. On the date of incident, namely 02.04.2002, appellant no.1 Jivan had fitted plastic pipe on the upper story of his house for taking water from the ground floor. On that day, in the evening, when Sushilabai returned from work she found plastic pipe fitted by appellant no.1. She, therefore, asked appellant no.1 to remove the said pipe. Appellant no.1 did not take out the said plastic pipe. Thereupon a quarrel ensued between Sushila on one hand and the appellants on the other hand. Sushilabai was beaten by the appellants and held and thereafter both the appellants poured kerosene on the person of Sushilabai and set her on fire and ran away. The neighbours came and extinguished the fire. Sushilabai was then admitted to the hospital. She had suffered 85% burn injuries. On the basis of dying declaration recorded by P.S.I. Madhukar Warade (P.W.7) at Ex.32-A, offence under Section 307 of Indian Penal Code was registered. Thereafter Executive Magistrate was called by the police. Noor Ahmed Khan (P.W.5), the Naib Tahsildar on duty at Tahsil office, Akola, visited the hospital and asked the medical officer on duty, Dr. Phadke, to examine the patient Sushila. Accordingly Dr. Phadke examined the patient and gave a certificate that the patient was conscious and fit to give statement. Having been satisfied with the condition of Sushila, Noor Ahmed Khan recorded her statement as per her say which is at Ex.43. The statement was read over to the patient, which she admitted to be correct. Thereafter Dr. Phadke again examined the patient and found her fit throughout. The investigation further proceeded. Ultimately Sushila succumbed to the burn injuries on 4.4.2002 and, as such, offence under Section 302 of Indian Penal Code was registered against the appellants. After completing the investigation, charge-sheet against the appellants was filed.

3. The trial Court framed the charge against the appellants, to which they pleaded not guilty and claimed to be tried. Trial was held. The defence of the appellants was that though quarrel had taken place between them and Sushila over fitting of plastic pipe by appellant Jivan, the same ended after intervention of Rangrao and Satish and appellant Jivan had gone to his shop. Thereafter Sushila poured kerosene on her person and set herself on fire and thus she committed suicide.

4. Prosecution besides relying on the two dying declarations (Exs.32-A and 43) also relied upon the evidence of Satish (P.W.2). After appreciating the evidence led by the prosecution, the trial Court held the appellants guilty and convicted and sentenced them, as stated above.

5. Mr. Ghare, learned counsel for the appellants, argued that the dying declaration (Ex.43) relied on by the trial Court has not at all been proved according to law. He argued that Noor Ahmed (P.W.5) working as Naib Tahsildar who recorded the said dying declaration (Ex.43) did not depose before the trial Court as to what the deceased Sushila told him about the name of the offender and the manner in which he poured kerosene and set her on fire. According to him, the evidence in the form of dying declaration falls in the exception to hear-say rule and, therefore, it was necessary for Noor Ahmed (P.W.5) to depose the name of the offender and the manner in which he committed the offence. He, therefore, argued that mere reliance on the dying declaration as evidence to be used against the appellant is wholly illegal and would result in miscarriage of justice to the appellant. The primary burden to prove that the appellant had in fact poured kerosene and set the deceased on fire has not been discharged by the prosecution inasmuch as Noor Ahmed did not depose to that effect before the trial Court. He, therefore, prayed for rejection of the dying declaration.

6. According to Mr.Ghare, the learned trial Court has rightly rejected the dying declaration (Ex.32-A) recorded by P.S.I. Madhukar (P.W.7) having found variance in the evidence of P.S.I. Madhukar and Dr. Tarpe (P.W.1). He then argued that the evidence of Satish (P.W.2) is liable to be rejected because he is an interested witness and closely related to deceased Sushila, inasmuch as deceased Sushila was the real sister of his father and from the childhood he was residing with Sushila. Pointing out his evidence from the cross-examination he submitted that Satish was living with Sushila since birth and she had no issue. She had four acres of agricultural land which, on the date of evidence he admitted, he got it after her death. That apart, Satish cannot be said to be an eye-witness because he had gone out when the incident of burning took place and came thereafter. The alleged oral dying declaration to him by Sushila is by way of omission amounting to contradiction and, therefore, his evidence is liable to be rejected. Finally, he prayed for allowing the appeal.

7. Per contra, the learned Public Prosecutor, opposing the submissions made by Mr. Ghare, argued that the dying declaration recorded by the Police Officer has been wrongly rejected by the trial Court having found minor variation about the presence of Dr.Tarpe in some other ward of the hospital. The dying declaration (Ex.32-A) is liable to be accepted by reversing the finding of the trial Court. Supporting the conviction, the learned Public Prosecutor further argued that the dying declaration (Ex.43) recorded by Noor Ahmed Khan (P.W.5) has been proved and there is no material to reject the said piece of evidence. According to him, it was not necessary for the Naib Tahsildar Noor Ahmed Khan to repeat the words stated to him in respect of the circumstances leading to the death of deceased Sushila and the accused persons who committed the offence of murder. The dying declaration having been duly proved and exhibited, it was not necessary to do so. Even otherwise, there is a presumption available to the dying declaration under Section 80 of Evidence Act. As regards the oral dying declaration to Satish (P.W. 2), he argued that presence of Satish in the house when the incident of quarrel began and subsequent incident of burning Sushila and Satish pouring water on her is proved beyond doubt and his presence is natural as he had been residing with Sushila since birth. In the absence of enmity between the accused and Satish (P.W.2) and his evidence being trustworthy, the same cannot be rejected being interested. The Public Prosecutor, therefore, prayed for dismissal of appeal.

8. We have heard the learned counsel for the parties. We have gone through the entire evidence on record. In view of the submissions made before us, the questions which arise, inter alia, for our determination, are as under:

(i) Whether presumption under Section 80 of Indian Evidence Act can be drawn in respect of a dying declaration recorded by a Magistrate without proof as to the cause of death of the dying person or as to in all the circumstances of the transaction which resulted in his death and particularly in respect of the name or description of/and act of the accused/offender in committing the offence of murder?

(ii) Whether it is necessary for the Magistrate who recorded the dying declaration to depose before the trial Court about the name and act of the accused which resulted into the murder, in the words spoken up by the dying man?

Since the above questions were of greater importance, we were required to find out the genesis of the law in relation to the above aspects.

9. The Indian Evidence Act, Act No. 1 of 1872 (15th March, 1872) was codified as there were no fixed rules of evidence. The law was vague and indefinite. After two years of passing of this enactment, on December 3, 1874, the Division Bench of Bombay High Court, as to the dying declaration, in the case of Reg. Vs. Fata Adaji & Two others reported in (1874)11 Bom HCR 247, held as under:

"The law does not provide that the mere signature of a Magistrate shall be a sufficient authentication of such a document, and it is obviously desirable that the person who took the statement should be subject to cross-examination as to the dying man's state of mind when he made it, and as to other circumstances. We must, therefore, exclude this document in considering the evidence in the case."

As to the submission that the statement be admitted without proof under Section 80 of Evidence Act, the Court said:

"The Magistrate was (i) not the committing Magistrate, and (ii) the prisoners were not present, and (iii) had no opportunity of cross-examining the dying man."

Thus this Court held that the person who took the statement of the dying man must be examined before the Court for knowing the truth about the dying man's state of mind when he made it, and as to other circumstances. Further, this Court also recorded three reasons for not admitting the statement without proof u/s.80 of Evidence Act.

10. In The Empress Vs. Samiruddin - (1882)8 Cal. 211, on Dec. 14, 1881, the Division Bench of Calcutta High Court held thus:

"The piece of evidence to which this observation relates is the dying statement of the deceased Baber Ali. This was recorded by the Deputy Magistrate as a 'deposition;' but it does not appear that Baber Ali was examined in the presence of the accused Samiruddin, and unless he were so examined by the Deputy Magistrate exercising judicial jurisdiction the writing made by such Magistrate could not be admitted to prove the statement made by the deceased. This statement must have been proved in the ordinary way by a person who heard it made. If the Deputy Magistrate had been called to prove it, he might have refreshed his memory with the writing made by himself at the time when the statement was made."

11. In King-Emperor Vs. Mathura Thakur & ors. - (1902)6 C.W.N. 72, the Division Bench held on the same line and Taylor J. in his separate concurring judgment remarked:

"With regard to the so-called dying-declaration the witnesses should not have been allowed to prove the document as if it was a substantial piece of evidence in the case. The relevant fact to be proved was the statement made by the deceased person admissible under Sec.32 of the Evidence Act. That statement is not the document made by the Magistrate but the verbal statement made by the deceased person. The document made by the Magistrate does not amount to a deposition or record of evidence. It was not taken in the presence of the accused; nor was it taken in their absence under the provisions and conditions prescribed by Sec.512, C.Cr.P. The only way of proving the statement was therefore by the oral evidence of some witnesses who heard it made, the said witness being at liberty to refresh his memory by referring to the note made by him or read over by him at or about the time the statement was made. I would lay stress upon this because in many cases irregularities of this nature have led to a miscarriage of justice or to great delay in the trial of cases."

12. In Gouridas Nomasudra Vs. Emperor - (1908)36 Cal. 659, the written petition of complaint which contained the statement made by the deceased person as to the cause of his death, was admitted in evidence on being proved by the mukhtear's mohurrir, who had prepared it under personal instructions and who deposed that the deceased made the statement to him which was correctly recorded in the petition.

13. In Ghazi Vs. Crown (1911)17 P.R. 1911 Cr., it was laid down that such statements must be proved and this would appear to show that if proved they are admissible.

14. In re Karuppan Samban, reported in 31 IC 359 : (1915)16 Cr.L.J. 759, the Division Bench of Madras High Court held thus:

"But it is contended that Exh. D, the principal of these, has not been properly proved, because the Magistrate who recorded it was not examined as a witness in the case. Reliance for this contention is placed on in the matter of the Petition of Samiruddin (1), Gouridas Nomasudra Vs. Emperor (2) and King-Emperor Vs. Mathura Thakur (3). A similar observation to that in the matter of the petition of Samiruddin (1), to the effect that when the Magistrate who records the dying declaration is not the Committing Magistrate and it is taken in the absence of the accused, it is not admissible unless the recording officer is examined as a witness, occurs also in Panchu Das Vs. Emperor (4) The learned Judges have not stated their reasons for this position, nor have they explained on what sections of the Criminal Procedure Code and the Evidence Act it is based. In Gouridas Nomasudra Vs. Emperor (2), it is conceded that an oral statement of a deceased person as to the cause of his death, if made in the absence of the accused, may be proved by any one who heard it made, as well as by the person who recorded it. That is sufficient for the purpose of the case, as Exh.D has been proved by the Sub-Assistant Surgeon who heard the statement being made and signed it. With all the due deference, we are unable to follow the learned Judges who decided In the matter of the petition of Samiruddin (1) and King-Emperor Vs. Mathura Thakur (3), when they say that the only way of proving such a statement is by calling a person who heard it made and permitting him to refresh the memory from the writing under section 159 of the Evidence Act. Whether they are treated as written statements of deceased persons or as written records of verbal statements, section 32(1) allows dying declarations which have been reduced to writing to be admitted as relevant facts. They thus become substantive evidence of the circumstances leading to the deceased person's death when the cause of the death is in question. A statement taken in the absence of the accused from a witness for the prosecution is described as a 'deposition' in section 162, Criminal Procedure Code, but sections 157 and 158, Evidence Act, show that, if it satisfies the conditions of section 32, it is nevertheless a 'statement' and as such is relevant whether the absence of the witness is caused by death or by some other cause which makes him incapable of giving evidence in person."

As to the presumption u/s.80 of Evidence Act, the Court stated thus:

"When, as here, the dying declaration has appended to it a certificate that it has been read over to the deponent and declared to be correct, and this is signed by the Magistrate who recorded the statement, section 80 of the Evidence Act creates a presumption that the circumstances under which it is stated to have been taken are true, the investigation by the Magistrate being a judicial proceedings. In this case, we have the additional security that the Medical Officer was present when the statement was taken and certified that the patient was in his senses at the time."

15. Similarly, in Emperor Vs. Balaram Das - AIR 1922 Cal 382(2) the Division Bench of Calcutta High Court held that though Babu Surendra Nath Ghosh, a Magistrate who had recorded the Dying Declaration, had since died, Asstt. Surgeon, P.W.6 who heard the same proved the Dying declaration by his oral evidence.

16. In Kaur Singh Vs. Emperor - AIR 1930 Lahore 450, the Division Bench on facts of that case observed thus:

"In both these statements Mt. Dhannon had stated that she was wounded by the appellant with a tesha and in my opinion they are valuable corroboration of the testimony to the eye-witnesses."

17. In Krishnama Naicken & anr. Vs. Emperor reported in AIR 1931 Madras 430, speaking for the Bench, the Chief Justice Beasley said on page 434-

"We guard ourselves from saying that when a dying declaration has been recorded and has been read over to the deponent and agreed to be correct it can be put in by itself and treated as substantive evidence without calling person who recorded it, as we are of the opinion that the evidence of the person who recorded it or in his unavoidable absence some other person who was present and heard it correctly recorded should always be taken to make the written record admissible."

18. A Single Judge of Allahabad High Court in the case of Suraj Bali Vs. Emperor reported in AIR 1934 Allahabad 340, while disagreeing with the view taken by Bombay High Court observed thus on page 342 of the report -

"He has produced no ruling in his favour with the exception of a very old ruling of the Bombay High Court reported in Reg. Vs. Fata Adaji (1). In that case the Government Prosecutor argued that the dying declaration before a Magistrate on solemn affirmation might be admitted without proof under S.80, Evidence Act. One of the learned Judges observed:

"The Magistrate was not the committing Magistrate, and the prisoners were not present, and had no opportunity of cross-examining the dying man."

Now, of these three reasons given not one reason would be altered if the Magistrate who recorded the dying deposition were called. That Magistrate would not become the Committing Magistrate by being called as a witness, nor would the defect of the accused having been absent and not having had an opportunity of cross-examination be in any way removed by the calling of the Magistrate who recorded the dying deposition. Further on the Court observed:

"The law does not provide that the mere signature of a Magistrate shall be a sufficient authentication of such a document."

The only question before the Court was whether S.80 does or does not make that provision. The mere declaration that it does not is no reason."

On Sec.80, Evidence Act, the Court held that a dying declaration before a Magistrate and recorded by him is admissible in evidence without calling the Magistrate or without proof under this Section.

19. In Emperor Vs. Somra Bhuian reported in AIR 1938 Patna 52, the Division Bench held thus:

"The argument is that the witness in each case should have given his parol evidence in full as to each sentence of what Kudrat stated to him, and that the written record is not evidence of the statements. For this proposition reliance is placed on 8 Cal 211. In this case the dying statement of the deceased Baber Ali had been recorded by the Deputy Magistrate as a deposition but not apparently in the presence of the accused. It was held that unless the deponent had been so examined by the Deputy Magistrate exercising judicial jurisdiction, the statement required to be proved in the ordinary way by a person who heard it made and could not be proved by the writing made by the Magistrate, though if the Deputy Magistrate had been called to prove the statement, he might have refreshed his memory with the writing made by himself at the time when the statement was made. This decision appears to have been sometimes cited in support of more than the Judges intended to lay down. In my opinion the law is not that the written record cannot be used at all, but that it is not to be used without first examining as a witness the person who heard the statement made. This is the view taken in 49 Cal.358 - Emperor Vs. Balram Das."

We have carefully considered the judgments rendered by various High Courts as above. We record our reasons hereinafter.

20. The question which arises for our consideration is, whether a dying declaration is admissible without proof, under Section 80 of the Evidence Act. It would be useful to reproduce the said provision.

"80. Presumption as to documents produced as record of evidence.- Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume -

that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken."

Since there are a number of "and" and "or", in order to avoid any ambiguity, this Section can be separated in three parts to arrive at a plain interpretation. S.80 applies to -

(i) any document produced before any Court, purporting to be a record or memoranda of evidence or of any part of the evidence given by a witness in a judicial proceedings, or

(ii) to a document purporting to be a record or memo of evidence given by a witness before any officer authorised to take such evidence, or

(iii) to a statement or confession by any prisoner or accused person taken in accordance with law and purporting to be signed by any Judge or Magistrate, or any such officer as aforesaid (i.e. authorised by law). To put it in another way, it would be -

(a) such document is memoranda of evidence;

(b) the evidence was given by a witness; and

(c) it was given in a judicial proceedings, or before an officer authorised by law to take it.

21. The words "by any prisoner or accused person" govern also the word "statement" because if they governed only the word "confession" the word "statement" would be left all alone and would be too vague to make any sense. Let us put to test the submission made on behalf of the State that dying declaration recorded by a Magistrate would fall under Section 80 of Evidence Act. S.80 of Evidence Act deals with presumptions to be attached to one important class of judicial documents viz. depositions of witnesses in a judicial proceedings or documents recorded by an officer necessarily means in some previous proceedings. The reason is, evidence recorded in open court in judicial proceedings or by an officer authorised to take evidence by observance of certain prescribed rules and formalities afford sufficient guarantee for the presumption that it was correctly done. The rule is, omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium - everything is presumed to be rightly and duly performed until the contrary is shown; and that the records of a Court of justice have been correctly made. For recording a dying declaration by a Magistrate, no particular procedure is prescribed by statutory law nor evidence of such a dying man is recorded in the presence of the accused, nor the accused had any opportunity of cross-examining the dying man. The dying declaration is recorded either before investigation begins or after and, therefore, it cannot be said that the same even if treated as 'evidence given by a witness' is not recorded during any previous judicial proceedings or any proceedings before an officer authorised by law to take such evidence. As Taylor J. in the case of King Emperor Vs. Mathura Thakur, supra, rightly observed that what is made admissible by S.32(1) of the Evidence Act is the verbal statement made by the dying man to the Magistrate and not the document prepared by the Magistrate. The document made by the Magistrate does not amount to a deposition or record of evidence so as to attract the presumption under Section 80 of Evidence Act. Therefore, what is admissible in evidence is the statement made by the dying man as to who was responsible for causing his death and not the paper on which dying declaration is recorded. For these reasons therefore, S.80 of the Evidence Act cannot be invoked in respect of presumption to be drawn in respect of a dying declaration recorded by a Magistrate or even an officer authorised by law to take evidence. As a sequel to our finding about inapplicability of presumption under Sec.80 of Evidence Act, we further hold that the Magistrate or the person who records a dying declaration will have to testify and prove who was named as offender by the dying person before Court where trial proceedings against accused are held. In the case of Samiruddin, supra, the Calcutta High Court held that the statement must have been proved in the ordinary way by a person who heard it made. If for any reason the Magistrate is not available, any other person who heard it when made can also testify and they being at liberty to refresh memory by referring to the document as provided by Sections 159 and 160 of Evidence Act.

22. Section 273 of Criminal Procedure Code reads thus:

"Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader."

A dying declaration recorded by a Magistrate is not recorded in the presence of the accused. But Sec.32(1) of the Evidence Act makes the same relevant and can be proved by evidence and sanctity given to it is embodied in the maxim nemo moriturus praesumitur mentire, i.e. a man will not meet his maker with lie in his mouth. That is why tests of oath and cross-examination are dispensed with. But then relevancy in evidence and proof by evidence are different things. Where accused is called upon to defend a charge under Sec.302, I.P.C., the burden of proof in the absence or presumption of law never shifts onto him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case, the accused can wait till the prosecution evidence is over and then show that the prosecution has not proved particular material facts through its prosecution witnesses who failed to describe the names and role of the accused in the offence of murder as told by the dying man to such a witness or a Magistrate who recorded the dying declaration. By merely exhibiting the document of dying declaration its contents and in particular the names of the offender/s and the role played by them in committing the offence of murder is not proved unless such witness or Magistrate vouchsafes before the trial court as to whom did the dying person named offenders. In Narbada Devi Gupta Vs. Birendra Kumar - AIR 2004 SC 175 : [2004(5) ALL MR 51 (S.C.)], the apex court in paragraph 16 held thus:

"The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court."

In Dandu Lakshmi Reddy Vs. State of A.P. - 199 ALL MR (Cri) 1784 (S.C.), supra, the apex court in para 3 held as under:

"There can be a presumption that testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross-examination, inter alia, for rebutting the presumption. But a dying declaration is not a deposition in Court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross-examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth."

We, therefore, respectfully agree with the Division Bench decision of the Bombay High Court in the case of Reg. Vs. Fata Adaje & ors. and Calcutta High Court in the case of the Emperor Vs. Samiruddin and King-Emperor Vs. Mathura Thakur & ors., cited supra. We do not agree with the decisions of other High Courts taking contrary view. We, therefore, answer question no.1 in the negative and question no.2 in the affirmative.

23. Now coming to the submissions made by Mr. Ghare, in the light of the view taken by us above, we find that insofar as the dying declarations (Exs.32-A & 43) recorded by P.S.I. Madhukar and Noor Ahmed Khan (P.W.5) are concerned, in their substantive evidence before the Court none of them had deposed that the appellants had poured kerosene on the person of Sushila and set her on fire and thus they were the offenders who caused her death. Both these witnesses wanted the Court to treat the dying declaration as substantive evidence in the form of documentary evidence which, as we have already held, is not the substantive evidence before the Court as these witnesses in their substantive evidence before the Court have failed to mention as to who were the offenders named by Sushila in her dying declaration. We, therefore, reject both the dying declarations (Exs.32-A & 43) on this count.

24. The next piece of evidence that remains to be carefully seen is that of Satish (P.W.2) who had been residing with deceased Sushila since his birth. He is a witness to the quarrel that took place between deceased Sushila and the appellants in the evening of 2.4.2002 and when the quarrel was going on, he left the residence and went to the nearby square. When he returned back after 10-15 minutes, having heard the shouts he found that the quarrel was still going on and Sushila was in burning flame behind the walls of her house. Seeing this, he poured a pot full of water and extinguished the fire. He went to the hospital along with Sushila and in the burning ward she told him that the appellants had poured kerosene on her person and set her on fire by lighting match-stick. We find his evidence natural so also his presence. He had been residing with Sushila since his birth and it was natural that he accompanied her to the hospital and that Sushila told him about the names of the offenders. We do not find that his evidence has been anywhere shaken, except for the attempt of the defence to show that he was highly interested witness because after the death of Sushila he got four acres of her agricultural land. In our opinion, for such reason, this witness cannot be called as an interested witness. He had no reason to depose on the material point regarding the oral dying declaration given to him by deceased Sushila. In paragraph 12 of evidence of this witness, the defence brought in cross-examination that the same was omission amounting to contradiction. The trial Court has rejected this omission on the ground that the same was not put up to the concerned police officer, who recorded his statement under section 161 of Criminal Procedure Code. We, however, find that the said alleged omission is not at all omission, as brought by the defence. For verification, we went through the statement of Satish recorded under section 161, Cr.P.C. and we find that in his statement in the last but one para of his statement it is mentioned that appellants had poured kerosene on the person of Sushila and set her on fire. We, therefore, reject the defence version that the oral dying declaration is in the form of omission amounting to contradiction. We have already held that the evidence of Satish is trustworthy and natural. We do not find any infirmity in the same and we therefore accept the evidence of Satish (P.W.2).

25. The contention that the other witnesses who had accompanied Sushila to the hospital were not examined by the prosecution, does not impress us because ultimately it is the choice of the prosecution to examine its witness. The medical evidence clearly supports the prosecution case regarding burning of Sushila. Sushila survived for about two days and was under medical treatment. Merely because she received 85% burn injuries and therefore she could not have talked is a far fetched submission. In fact, immediately after the incident of setting Sushila on fire the fire was extinguished and she was taken to the hospital where she immediately disclosed to Satish (P.W.2) about the incident and the name of the offenders.

26. In the result, we uphold the conviction of the appellants recorded by the trial Court for the offence of murder of Sushila committed by the appellants and consequently dismiss the appeal.

27. For the reasons aforesaid, the appeal stands dismissed. Appellant no.2 Sau. Kanta Jivan Dhavali, who is on bail, is directed to surrender before the trial Court within four weeks from today to undergo the sentence, and in default she be sent to prison after four weeks.

Appeal dismissed.