JUDGMENT
C.K. Buch, J.
1. This appeal is preferred by the accused of Sessions Case No. 362 of 1991 tried and decided by Additional City Sessions Judge of Ahmedabad. The appellant (hereinafter referred to as ‘the accused’) was tried for offence punishable under Section 302 of Indian Penal Code on the allegations that on 11th June, 1991 at about 11-00 p.m. outside Shahpur Gate, Near Fire Brigade in Kamumiya’s chawl at Ahmedabad, he poured kerosene on his wife Kamlaben. At that relevant point of time, he was in drunken condition and with an intention of causing her death, set fire by throwing kerosene lamp. According to the case of prosecution, deceased Kamlaben had married the accused before seven years, and was residing with him. The accused was making allegations against her character and on account of such doubt, he was beating Kamlaben. It is contended by the prosecution that earlier on two occasions, she had gone to her parental house because of ill-treatment, but as her monther-in-law persuaded her, she had returned. According to the prosecution, since last four years, she was staying separately with her husband in Kamumiya’s chawl. On the date of incident, at about 11-00 p.m., the accused came from outside in drunken condition and told the deceased, Kamlaben, that she should leave the house or should die. Immediately, after saying so, he poured kerosene on her and a burning Jamp was thrown on her. The clothes caught fire and she sustained bum injuries all over the body. According to the prosecution, she shouted for help and neighbours came running to her rescue. P.W. Gafurbhai Gagjibhai, P.W.-Taraben Chandulal and husband of Taraben, Shri Chandulal were present. The accused thereafter, ran away from the house. Brother of deceased Kamlaben, Atmaram Praiapji, who is residing in the very area, also reached at the spot and took her to the hospital. She was admitted in the hospital. Hospital Authority informed the Police and her complaint came to be recorded by Police Sub-Inspector, Sharma. According to the prosecution, P.S.I., Sharma, had received vardhi from the hospital and the complaint was recorded in the Bums Ward. According to the prosecution, she was conscious. The complaint recorded by the P.S.I, was read over to her and as she was illiterate, her right hand thumb mark was taken on the complaint. P.S.I., Sharma thereafter, prepared a Yadi for Executive Magistrate and intimated that dying declaration of injured Bai Kamlaben requires to be recorded. On this yadi, an endorsement of Doctor present was taken to the effect that the patient was conscious. On arrival of Executive Magistrate, he recorded dying declaration of deceased Kamlaben and one copy of dying declaration was given to P.S.I., Sharma. By that time, the complaint recorded by the P.S.I., Sharma, was sent to the concerned Police Station and offence punishable under Sections 498A and 307 of Indian Penal Code was registered at about 3-30 a.m. on 12th June, 1991 and P.S.I., Sharma, started further investigation. Thereafter, he went to the scene of offence and Panchnama was drawn in presence of Panchas and Muddamal : Plastic Tin, a small glass kerosene lamp, burnt pieces of clothes, etc. were collected. Accused, at the relevant point of time, was not found in the house. Meanwhile, the deceased Kamlaben was undergoing treatment in V. S. Hospital, succumbed to injuries on 14th June, 1991. Thereafter, the police arrested and charge-sheeted the accused for offence punishable under Sections 302 and 498A of Indian Penal Code. After considering the oral evidence of nine witnesses, examined by the prosecution, and documents including panchnamas, hospital treatment papers, post mortem note, etc., the learned Judge held the appellant-accused guilty for the offence punishable under Section 302 of Indian Penal Code. At the time of framing of charge, no formal charge for the offence punishable under Section 498A was framed. Obviously, therefore, there is no formal finding for the trial qua the alleged offence punishable under Section 498A by the trial Court.
2. The learned trial Judge sentenced the accused to undergo rigorous imprisonment for life and a fine of Rs. 500/- and in default one month rigorous imprisonment. Feeling aggrieved by the order of conviction and sentence, this appeal is preferred under Section 374 of the Cr.P.C.
3. Learned Counsel appearing for the appellant, Mr. Nitin M. Amin, has taken us through the entire oral as well as documentary evidence and relevant part of the judgment. Mainly, he has assailed dying declaration made by deceased Kamlaben before the prosecution witnesses; Atmaram, Gafurbhai and Taraben Chandubhai. He has assailed the genuineness and credibility of the contents of the F.I.R. recorded by P.S.I., Sharma, and dying declaration recorded by the Executive Magistrate and submitted that the order of conviction is mainly based on this dying declaration. Dying declaration relied by the learned trial Judge does not inspire confidence, hence, order of conviction is bad. So, appeal should be allowed and the accused should be acquitted or atleast, looking to the totality of the facts and documents on record, he should be given benefit of doubt.
4. While enlarging the arguments, Mr. Amin has submitted that dying declaration oral as well as written ought not to have been accepted as trustworthy piece of evidence because : (1) deceased Kamlaben was under severe pain as the injury on her body was around 95% to 100%; (2) she was treated in the V. S. Hospital before her written dying declaration was recorded, an injection of Pethidine, a pain-killer, must have been injected in her body so, she could not have been in a fit state of mind at the relevant point of time; (3) Consciousness is altogether a different aspect than a fit state of mental condition and the learned Judge has not considered this aspect while evaluating the evidence; (4) Considering the time of F.I.R. allegedly recorded by P.S.I., Sharma, as stated by him, indicates that the F.I.R. was later in point of time than dying declaration recorded by the Executive Magistrate; (5) Alleged certificate as to consciousness of patient given under a Police Yadi must have been obtained at about 1-00 a.m. and so, the absence of certificate by a Doctor under dying declaration recorded by the Executive Magistrate and the F.I.R. recorded by P.S.I, renders both these documents doubtful and untrustworthy. In support of this submission, Mr. Amin has placed reliance on a decision of the Apex Court in case of Paparambaka Rosamma and Ors. v. State of A. P.. reported in 1999 (7) SCC 695. The Executive Magistrate ought to have obtained the certificate from the Hospital’s doctor before or after recording of dying declaration because, there is inherent weakness attached to the dying declaration and same would not justify any initial presumption to be drawn that dying declaration contains only truth. Quoting Para-3 of the judgment in case of Dandu Lakshmi Reddy v. State of A. P., reported in 1999 (7) SCC 69, Mr. Amin has advanced this argument.
5. Reading the relevant paras of the deposition of Executive Magistrate, Mr. Govindlal Shankerlal Parmar, Exh. 28, and the deposition of P.W.-Atmaram, Exh. 10, Mr. Amin has submitted that deceased Kamlaben was surrounded by close relatives prior to the entry of the Executive Magistrate in the Ward, so, there was ample opportunity of tutoring her by close relatives.
6. Prosecution has examined only close relatives as witnesses and though independent witnesses were present at the spot of incident, none except Taraben is examined and witness, Taraben, has not supported the case of the prosecution and she was treated hostile to the prosecution.
7. Absence of smell of kerosene from the body of the deceased goes to the root of the merit of the ease of the prosecution because prosecution witness Dr. Bhise, who accepted that he performed autopsy, has not smelled kerosene from the body at the time of post mortem.
8. It is hazardous to accept so-called oral dying declaration made before the relatives. One witness examined by the prosecution namely Gafurbhai Gagjibhai, Exh. 8, is a relative (distant maternal uncle), and Atmaram Pratapji, Exh. 17, is the real brother. Missing of T.P.R. chart in the Hospital papers creates a doubt and it can be legitimately inferred that injection pethidine must have been given prior to the recording of dying declaration by the Executive Magistrate. This can be said to be suppression of relevant papers.
9. Inconsistency in two dying declarations at Exhs. 35 and 30 respectively as to the cause for alleged torture is not considered by the learned trial Judge. According to Mr. Amin, when injection pethidine was prescribed, in absence of T.P.R. chart, the learned trial Judge ought to have held that injection must have been given to the patient. He has further submitted that written dying declaration before both these witnesses should be ignored in view of the principle propounded in case of State of Gujarat v. Dilipkumar Ratilal Shah, reported in 1992 (1) GLH (UJ-17) 28 and in case of State (Delhi Administration) v. Laxman Kumar and Ors., reported in AIR 1986 SC 250. He has referred relevant Para 26 of the judgment in the case of State (Delhi Administration) (supra), which reads as under :
“26. The summary of history-sheet, Ext. P.W. 17/0 indicates that a pethidine injection was given to Sudha at 10 p.m. and the doctor prescribed repetition of it every 8 hours. Judicial notice can be taken of the fact that after pethidine is given the patient would not have normal alertness. Appropriate care was not taken at the trial stage to cross-examine D.W. 1 with reference to this aspect. We are inclined to agree with counsel for the appellants that the certificate of D.W. 1 that Sudha was in a fit condition to make a declaration cannot be given full credit. This Court pointed out in Khushal Rao v. State of Bombay, AIR 1958 SC 22, that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as . far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.”
Mr. Amin in view of the above submissions has prayed for acquittal.
10. (i)Learned A.P.P., Mr. K. C. Shah, has resisted the arguments of Mr. Amin and submitted that this is a case wherein, overwhelming evidence is available on record against the accused. The finding of the learned trial Judge is absolutely legal and based on proper appreciation of oral as well as documentary evidence. Both witnesses, before whom the deceased Kamlaben had stated about involvement of the accused in the offence are rightly believed by the trial Court. Their presence at the spot of incident in couple of minutes was a natural. P.W.-Gafurbhai Gagjibhai @ Dhanji is not a real maternal uncle, but he is simply a caste fellow. He is residing in the very area and the statement made by deceased Kamlaben before Gafurbhai can be said to be at the earliest in point of time or at the first available opportunity. Same is the case with the P.W.-Atrnaram, brother of the victim, Kamlaben. Statement before these two witnesses, is consistent. No material contradiction is brought on record qua these two oral dying declarations. Taraben Chandulal is declared hostile to the prosecution, but during her cross-examination, she has accepted that she and her husband had poured water on victim’s body with a view to extinguish fire and at that time, accused, Rameshbhai was present in the house and had left the house with all the three children. So, presence of the accused in the house where the incident has occurred was satisfactorily established by the prosecution. F.I.R. recorded by the P.S.I., Sharma, can be treated as dying declaration within the meaning of Section 32 of the Evidence Act and the same has been rightly appreciated by the trial Court.
(ii) Prosecution witness-Gafurbhai was allegedly involved in the crime punishable under Section 420 of the Indian Penal Code. He has fairly accepted that a criminal case for such offence was filed against him, but there is nothing on record to show that he was ultimately held guilty. The learned trial Judge has rightly appreciated this part of evidence also. The nature of the offence allegedly committed by this witness, though can be said to be offence of moral turpitude, but in view of the nature and quality of the deposition of this witness cannot be graded as inferior type of evidence or of a “condemnable witness having weak moral fibre”. Merely on this count, his evidence cannot be thrown out and the learned trial Judge has, therefore, rightly not accepted this say.
(iii) How and in what circumstances, deceased Kamlaben was set on fire by her husband was told to the Sub-Inspector by Kamlaben herself and there is no material contradiction between the oral dying declaration made by her before P.Ws. – Gafurbhai and Atmaram and the story told to the Sub-Inspector. Investigating Officer had rightly arranged for the visit of Executive Magistrate, Mr. Parmar, and the dying declaration recorded by the Executive Magistrate, Mr. Parmar, also discloses the same story. She had stated before the Executive Magistrate that accused, on the day and at lime of incident, had come to the house in drunken condition. The accused was in habit of beating her and he poured kerosene on her and threw a kerosene lamp to her and her clothes caught fire. Of course, she has not stated details as to the motive for the committal of crime in her dying declaration before the Executive Magistrate, but the fact remains that the basic act of crime is described by her.
(iv) Dying declaration is recorded in question answer form. The Executive Magistrate himself was satisfied about the fact that the patient was conscious and was able to reply questions in a fit state of mind. Police Yadi sent to the Executive Magistrate also bears the endorsement of the Doctor about the consciousness of the patient. Case paper produced before the trial Court also says about consciousness of the patient throughout and there is no endorsement which could be said to be adverse to the prosecution. That abnormality in the health is not found recorded in the papers of treatment. Learned A.P.P., Mr. Shah submitted that consistency in the declarations before all the four witnesses is relevant and the learned trial Judge has rightly accepted this part of the evidence. By referring relevant panchnama of the scene of the occurrence, learned A.P.P., Mr. Shah has also pointed out that the lamp which was thrown on her body was also found at the scene of offence. This corroborative piece of evidence supports her oral version. Investigating Officer had requisitioned the services of Forensic Science Laboratory’s experts and on their visit, they have recovered certain materials from the spot of incident and recovery of these articles and the findings of F.S.L. report also corroborate the say of the victim lady. So, this is not a case of uncorroborated sole dying declaration, but here one recorded dying declaration corroborates the another and other circumstances support the dying declaration made by her before the witnesses. So, the finding recorded by the trial Court should sustain and the appeal requires to be dismissed.
11. On perusal of the entire evidence and reasons assigned by the learned trial Judge in holding the accused guilty for the offence, we are of the view that the arguments advanced by the learned A.P.P., Mr. K. C. Shah, is well-founded. We are not required to assign our own reasons when we are inclined to confirm the findings recorded by the learned Judge. However, we would like to answer the legal points agitated by the appellant to conclude that this is not a case wherein the benefit of doubt even can be granted to the appellant. It is true that there is no certificate of Doctor as to the consciousness and the fit state of mind of patient Kamlaben on the dying declaration recorded by the Executive Magistrate. The Apex Court in above cited case reported in 1999 (7) : SCC 695 (supra) has propounded a principle that the certificate as to the fit state of mind is very important and absence of such certificate goes to the root of the case of the prosecution. Opinion of the Magistrate recording declaration that injured was in a fit state of mind, at the time of making declaration cannot be relied upon. In the case before the Apex Court, none of the material witnesses including relative of deceased, Smt. Venkata Ramana had supported the case of the prosecution. Case of the prosecution was resting on sole piece of evidence i.e., dying declaration recorded by the Executive Magistrate. After some hours, there were no other declarations oral as well as written in between period and the dying declaration recorded by the Executive Magistrate was without certificate of a Doctor as to the consciousness and the state of mind of the patient. Here, in case on hand, deceased Kamlaben had made oral dying declaration before the prosecution witnesses, Gafurbhai and Atmarambhai at first available opportunity. The questions which were asked by these two witnesses to victim, Kamlaben, were significantly important. The language of questions even does not indirectly suggest that these two witnesses had intended a particular type of answer and in response of the questions asked, with a view to disclose her innocence, Kamlaben had disclosed the story explaining as to how she caught fire. These two oral dying declarations made before these two witnesses itself are with ring of truth. According to us, even in absence of other two recorded dying declarations, the appellant could have been convicted rightly by the trial Court. However, the learned trial Judge has accepted the totality of the evidence available on the record, by way of prudence and has evaluated the case of the prosecution in light of the consistency in the version of the deceased Kamlaben, non-disclosure of motive as to the crime before the Executive Magistrate cannot be said to be a case of material omission. It does not amount to a contradiction. Each omission has no characteristics of contradiction unless the same is satisfactorily established before the Court that the same has an effect of material contradiction. This might have happened because of non-anxiety of the Executive Magistrate. Person who records dying declaration if does not ask about the motive of the crime, it may not come on record. Non disclosure of the motive by the victim would not create an important infirmity itself, and therefore, this would not go to the credibility of witness or the case of the prosecution. Factually, this case is different than the fact of the case relied on by the learned Counsel, Mr. Amin. On the other hand, the Apex Court while dealing with the case of Kali Cfiunilal Savji and Anr v. State of Gujarat, reported in AIR 1999 SC 3695 : 2000 (4) GLR 3298 (SC), has considered the question whether the two dying declarations can be held to be true and voluntary and can be relied upon or should be excluded from consideration for the alleged infirmities pointed out by the learned Counsel appearing for the appellant. While answering this question, the Apex Court held, in Paras 7 & 8 of the judgment which we would like to quote as it is.
“7. Coming to the first question, the answer to the same would depend upon the correctness of the submission of Mr. Keshwani, that in the absence of doctor while recording the dying declaration, the said declaration loses, its value and cannot be accepted. Mr. Keshwani in this connections relies upon the decision of this Court in the case of Maniram v. State of Madhya Pradesh, AIR 1994 SC 840 : AIR 1993 SCW 211 : 1994 Cri.LJ 946. In the aforesaid case, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. In the said case, the Court also thought it unsafe to rely upon the dying declaration on account of aforesaid infirmity and interfered with the judgment of the High Court. But, the aforesaid requirements are mere a rule of prudence and the ultimate lest is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. In Ravi Chander v. State of Punjab, 1989 (9) SCC 303 this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration only made need not be doubted. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or in any way interested in fabricating the dying declaration, and therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaitr v. State of Punjab, 1994 (4) SCALE 47, this Court has examined the same question and held :
“….. As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not on the dying declaration itself, but on the application, that would not render the dying declaration suspicious in any manner.”
“8. In view of the aforesaid decision of this Court, we are unable to accept the submission of Mr. Keshwani that the two dying declarations cannot be relied upon as the doctor has not been examined and the doctor has not made any endorsement on the dying declaration. With regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically slated in her evidence that as soon as she reached the hospital in the Surgical Ward of Dr. Shukla, she told the Doctor on duty that she is required to take the statement of Dhanuben and she showed the doctor the police yadi. The doctor then introduced her to Dhanuben and when she asked the doctor about the condition of Dhanuben, the said doctor categorically stated that Dhanuben was in a conscious condition. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient, but there has been an endorsement on police yadi, indicating that Dhanuben was fully conscious. In view of the aforesaid evidence of the Magistrate and in view of the endorsement of doctor on the police yadi and no reason having been ascribed as to why the Magistrate would try to help the persecution, we see no justification in the comments of Mr. Keshwani that the dying declaration should not be relied upon in the absence of endorsement of the doctor thereon. In this particular case, the police also too the statement of the deceased which was treated as F.I.R., and the same can be treated as dying declaration. The two dying declarations made by the deceased at two different point of time to two different persons, corroborate each other and there is no inconsistency in those two declarations made. In this view of the matter, we have no hesitation to come to the conclusion that the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused persons and the prosecution case must be held to have been established beyond reasonable doubt. Consequently, we have no hesitation in rejecting the first submission of Mr. Keshwani. In this connection.
it may be appropriate for us to notice an ancillary argument of Mr. Keshwani that there has been an inordinate delay on the part of the Magistrate to record the dying declaration, and therefore, the same should not be accepted. As we find from the records, the incident took place at 4 a.m. and the Magistrate recorded the dying declaration at 9 a.m., in our opinion, it cannot be said that there has been an inordinate delay in recording the statement of the deceased. Mr. Keshwani had also urged that when the Magistrate recorded the dying declaration, the deceased had been surrounded by her relation, and therefore, it can be assumed that the deceased had the opportunity of being tutored. But we fail to understand how this argument is advanced inasmuch as there is no iota of evidence that by the time the Executive Magistrate went, the deceased was surrounded by any of her relations. No doubt, the Magistrate herself has said that three or four persons were there near the deceased whom she asked to go out but that they were the relations of the deceased, there is no material on record. We, therefore, have no hesitation to reject the said submission of Mr. Keshwani.”
12. According to us, the case on hand is a case where the prosecution had relied on dying declaration which can be said to be declaration without serious infirmity. The learned Executive Magistrate had a certificate of the consciousness of the patient before he reached, on the Yadi received. So, it remained a matter of subjective satisfaction of the Executive Magistrate, and therefore, dying declaration should not be considered with serious infirmity especially when the version in such dying declaration is found consistent with the previous Declarations. He himself had verified about the consciousness and state of mind of the patient. Consistency in dying declarations from point of earliest opportunity of making it and the last opportunity offered to the victim play vital part in evaluating the truthfulness of the maker. This consistency indirectly confirms the peace and harmony of thinking process and also tells the Court as to the state of mind. The complaint recorded by the Police Officer in the Hospital, even was accepted as a valid dying declaration in eye of law within the meaning of Section 32, after the death of the victim though the same was without any formal endorsement of the Doctor as to the consciousness or the state of mind. In the case reported in AIR 1999 SC 3361, Jai Prakash and Ors. v. State of Haryana, the Apex Court has observed as under :
“….. As Sushma was taken to the hospital with burns, the hospital authorities informed the police. The police after going there, recorded the statement of Sushma. It was then in the nature of a complaint and was later treated as a dying declaration because she died. Whether police could have recorded a regular dying declaration or not was matter for cross-examination, it cannot have any bearing on the correctness or otherwise of the statement recorded on 7-10-1990. The said statement was sent to the police station at about 1-30 p.m. and the F.I.R. was recorded at 3-30 p.m. A copy of the said F.I.R. was received by the Magistrate on 8-10-1990 at about 10-00 a.m. Therefore, there is no scope for doubling genuineness of that statement in this case. We are emphasising this aspect because it was also contended by the learned Counsel that the dying declaration – Ex. PJ was not her statement at all. Only a vague suggestion was made to the Investigating Officer and to the Doctor that no statement at all was made by the deceased. This suggestion was denied by both of them. There is nothing on the basis of which it can be said that there is any substance in that suggestion.
4. It was next contended that no weigh ought to have been given to that statement as it was not attested by the doctor and no endorsement was made thereon to show that the statement was made by Sushma while she was mentally and physically fit to make such a statement. This submission is also misconceived as it proceeds on an erroneous assumption that what was recorded by the police officer was a dying declaration. As he recorded a complaint, it was not necessary for him to keep any doctor present or obtain any endorsement from him.”
13. In nutshell, the legal argument advanced by Mr. Amin is not acceptable in view of the above settled legal position that because of 95% to 100% burns on the body, she could not have stated anything in a fit state of mind. This is a hypothetical argument and none of the doctors who have treated her has stated otherwise. Doctor has categorically opined and stated that such patient can remain conscious till last. Panchnama of scene of the offence and Forensic Science Laboratory report support the case of the prosecution. Non-smelling of kerosene from the body of victim, as stated by the Dr. Bhise who performed the autopsy, would not help the defence side because the victim sustained injuries on 11th June, 1991 and post mortem was performed on 15th June, 1991 meanwhile, she must have undergone treatment by the Doctors in the Hospital. Many of the burns might have been sustained because of the nature of the clothes put on by her. During the cross-examination of P.W.-1., Dr. Bhise, it was suggested by the defence Counsel that if anybody, by pouring kerosene on her body sets fire, whether such injuries could be sustained and the reply given by Dr. Bhise was in affirmative. We agree with the suggestion made by Counsel during the cross-examination, but same does not give other shape to the case of prosecution nor the same is binding to the accused, but the fact remains that according to Dr. Bhise the injury found on the body of deceased Kamlaben was of the nature, which can be inflicted after pouring of kerosene and setting fire. So far as applying the injection pethidine is concerned, there is no positive evidence on record that the injection was given to the patient any time prior to the recording of dying declaration by the Executive Magistrate. On the contrary, the endorsement in the case papers shows that a specific instruction was recorded to the effect that unless police enquiry is concluded, an injection pethidine may not be given. Doctor who is examined by the prosecution is the doctor who has prescribed this very injection and till he was in the ward, injection pethidine must not have been given. It was not suggested to this doctor that he himself had injected pethidine to the patient. We agree that T.P.R. chart was not with the case papers on the date of the deposition of the Doctor and from T.P.R. chart, one can exactly say when a particular injection was given to the patient or how many injectable fluid bottles were given to the patient. The deceased Kamtaben was brought into the concerned ward at about 12-30 p.m. and for some period, she was treated by Dr. K. C. Shah, P.W.-8 (Exh. 39). Of course, when the Executive Magistrate had entered in the Ward for the purpose of recording dying declaration, Dr. Shah was not available in the Ward. But, merely because T.P.R. chart was not in the case papers, on the date on which the deposition of the doctor was recorded, it cannot be inferred that the injection pethidine must have been applied to the patient prior to the recording of dying declaration by the Executive Magistrate. When the case of the prosecution does not rest on a sole piece of dying declaration recorded by the Executive Magistrate and much earlier to the dying declaration recorded by the Executive Magistrate, deceased Kamlaben had made three other dying declarations; two dying declarations before witnesses namely : Gafurbhai and Atmaram and one written dying declaration before the P.S.I., Sharma. Non-production of T.P.R. chart by the prosecution would not turtle the entire case of the prosecution. On the contrary, the consistency between the three oral dying declarations and the fourth recorded by the Executive Magistrate indicate three things : (1) say of the Executive Magistrate, that he himself has verified about the consciousness of the patient is acceptable piece of evidence; (2) the injection pethidine must not have been applied; (3) if the same was even applied the effect of the injection must not have been started as otherwise it is difficult to continue with the consistent say while making dying declarations. So, the above-referred cases relied on by the learned Counsel for the appellant, Mr. Amin, would not help the appellant. Alleged non-examination of independent witnesses by the prosecution, according to us, is not a forceful argument in this case. Merely because some witnesses are relatives, their evidence should not be viewed with doubt. If the Court is satisfied with the evidence as acceptable and trustworthy, the conviction can be based on such evidence. Two witnesses, Gafurbhai and Atmaram, were present and their presence is found natural and their evidence should not be discarded because one of them is a real brother and other is a caste fellow. Prosecution has examined Taraben, one of the neighbours, but she has not supported the case of the prosecution. Duplication of evidence is not required. Prosecution is at liberty to select the witness and to decide the chronology. Defence, if, is able to establish that non-examination of a particular witness or unscientific chronology of the witness examined, has caused serious prejudice, the same would not help the accused. The learned trial Judge has mainly relied on dying declaration of the deceased Kamlaben. According to us, this submission would not weigh much. In short, there is no merit in the appeal, hence, the same is required to be dismissed. The appeal is dismissed.
14. Appeal dismissed.