A dying declaration is not admissible in evidence unless it is proved during the trial.

( 1 ) THE appeal is directed against the judgement and Order dated 29-4-1989 of Vth Additional Sessions Judge, Ujjain, passed in Sessions Trial No. 94/87, whereby the accused appellant has been convicted under S. 302, IPC for having committed murder of his wife Sushilabai on 29-1-87 by setting her to fire in his residential place, Rishi Nagar, Ujjain and sentenced to imprisonment for life.

( 2 ) THIS is not in dispute that Sushilabai d/o Ramnathsingh was married to accused, 12 to 14 years prior to the incident. Both of them were residing together at Rishi Nagar, Ujjain. Five children were born out of the wed-lock. Three children were living along with them and the two children were living with their grand-parents. Sushilabai was admitted with serious burn injuries in Ujjain Hospital and, thereafter, she died on the intervening night of 3rd and 4th February 1987.

( 3 ) THE prosecution story, in brief, is that the accused and his wife Sushilabai (deceased) were having strained relation. Accused was in the habit of consuming liquor and beating his wife. On one occasion he had turned his wife out of his house. On the date of incident accused came late in the night, he had consumed liquor. He abused and beat his wife and thereafter, poured kerosene oil and set her to fire. Their child Meena @ Minni (P. W. 15) witnessed the incident as she was awoke because of sounds of quarrel. After the incident accused went to his friend Umesh Punjabi, hired an autorikshaw and took his wife Sushilabai to Civil Hospital. Sushilabai disclosed to auto-rikshaw driver Ruturaj Pandey (P. W. 3) that she has been set to fire by his husband. Sushilabai was admitted in hospital. She was examined by Dr. Sharad Nayak (P. W. 4), who found 99% burn. Despite treatment Sushilabai succumbed to burn injuries and died as above. She died of hypovolumic and neurogenic shock due to 100% burn. After investigation police Madhav Nagar, Ujjain, filed challan against the accused, the same was committed to the Court of Sessions in due course. The accused denied the guilt and pleaded false implication. Learned trial Judge has convicted and sentenced the accused as above. Hence, this appeal.

( 4 ) THE contention of the learned counsel for the appellant is that the dying declaration has been purposely not proved by the prosecution. In the dying declaration Sushilabai has very clearly stated that she got burn injuries because of accidental fire; Appellant also got burn injuries that goes to show that he tried to extinguish fire. Lastly it has been contended that since Meena has not supported the fact of burn injuries being caused by the accused, corroborative evidence about alleged disclosure by Meena to witnesses cannot be made basis for conviction. AS against it learned counsel for the State has supported the judgement of conviction and sentence of accused and further submitted that looking to strained relation and alcoholic habit of accused inference drawn is cogent and natural.

( 5 ) WE were taken to the evidence of record. Dying declaration recorded by Executive Magistrate/sub Tehsildar, Ujjain, has been filed in the case along with the challan, but the same was not proved during the course of trial. However, it has been taken in the paper book at the request of the counsel for the accused. Similarly, the injury report of accused was also not proved, but was taken in the paper book at the request of accused-appellant. WE depreciate method of prosecution of withholding the evidence collected during investigation. The prosecutor is a 'state' and, therefore, the prosecution should be fair enough to produce all the evidence collected during investigation and it should be left to the Court to come to its own conclusion on the facts proved before him or the Court concerned. BUT, despite the absence of formal proof of document of dying declaration, the same can be made use of by the accused in his defence accused can take the advantage of the document even withou