KAMLESH SHARMA, J.

(1.) In this appeal, the appellant, who is presently lodged in Model Central Jail, Nahan, is aggrieved by judgment dated 5-5-1998 passed by Additional Sessions Judge, Mandi, whereby he was convicted under Section 302, I.P.C. and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- for the murder of his wife Sumati Verma by setting her on fire, as a result of which she received burn injuries, to which she succumbed later on.

(2.) The factual matrix of prosecution case is that the appellant was married to deceased Sumati Verma in the year 1988 and two sons, namely, Akash and Lalit were born out of this wed-lock, who were 7 and 4 years of ages on the date of incident. The appellant was working as Clerk in Electrical Workshop of BBMB at Sundernagar and was residing in Quarter No. S-2-648 in B.S.L. Colony, Sundernagar, along with deceased Sumati Verma and their two sons in the year 1996. The appellant was addicted to drinking and purchase of lottery tickets in bulk. On 3-6-1996 he took a sum of Rs. 200/- from deceased Sumati Verma and spent the same for drinking and purchase of lottery tickets. On the same day at 1.30 p.m. he sought more funds from deceased Sumati Verma and on her refusal he had picked up his bank pass book and left his quarter but again returned at 2.30 p.m. and asked for more funds. When deceased Sumati Verma again refused and told the appellant that she had no money he became furious and started throwing household goods helter skelter and started beating deceased Sumati Verma. Ultimately, he brought a bottle of kerosene from the kitchen and poured it on the person of deceased Sumati Verma and set her on fire with a match-stick. When she cried for help, some women from the neighbourhood rushed to the spot and found deceased Sumati Verma completely burnt. In the meantime, Fire Brigade reached the quarter of the appellant and took deceased Sumati Verma firstly to BBMB Hospital at Sundernagar and thereafter to Civil Hospital, Sundernagar for treatment, where she was admitted at 4.20 p.m.

(3.) The Medical Officer of civil Hospital, Sundernagar had telephonically informed Police Station. Sundernagar on the basis of which Daily Diary Report No. 18 Ex. PW-15/A was recorded and SHO Hans Raj rushed to the hospital and thereafter made application to the S.D.M., Sundernagar Shri R.N. Karol to record the statement of deceased Sumati Verma. As Shri R. N. Karol, the S.D.M. took time to reach the hospital, SHO Hans Raj PW-15 in the presence of Doctor V.K. Kapil PW-14 and Shri B.M. Sharma, the then Dy. S.P. Sundernagar recorded the statement Ex. PA of deceased Sumati Verma and sent the same to Police Station Sundernagar with endorsement Ex. PW-15/B, on the basis of which FIR Ex. P-8 under Section 307, I.P.C. was recorded by Head Constable Narain Singh PW-2. Thereafter; Sub-Divisional Magistrate Shri R. N. Karol PW 4 reached the hospital and recorded statement Ex. PW4/C of deceased Sumati Verma in the presence of Doctor V.K. Kapil PW 14. In both these statements deceased Sumati Verma attributed the burn injuries to the appellant by categorically stating that he had set her on fire after throwing a bottle of kerosene on her person. Deceased Sumati Verma was referred to P.G.I. Chandigarh for expert treatment on 4-6- 1996, where she died on 14-6-1996 and autopsy on her dead body was conducted by Doctor V.K. Chopra PW-8, Medical Officer, General Hospital, Sector 16, Chandigarh along with Doctor Usha Bishnoi on 16-6-1996 and opined her death due to cardio respiratory arrest caused by septicemia as a result of 8O% burns and the FIR registered under Section 307. I.P.C. was converted to Section 302, I.P.C. The appellant stood arrested on 4-6-1996.

(4.) To prove its case the prosecution has produced 15 witnesses but decision of the case hinges upon the dying declaration Exts. PA and PW 4/C of deceased Sumati Verma which have been relied upon by the Additional Sessions Judge to hold that it was the appellant who had set her on fire after pouring kerosene on her person, as stated by her in her dying declarations. The defence set up by the appellant in the written statement of his defence was that deceased Sumati Verma got burnt accidently in the kitchen while he was in the bed room, where both their sons were playing and on hearing her cries he had rushed to the kitchen and tried to extinguish the fire with his right hand and thereafter, tried to wrap her body in a bed-sheet and lastly splashed water on her body. He had also informed some ladies, who were sitting in the open in front of his quarter, about the fire and went to the shop of Babu Ram PW-6 to send for the Fire Brigade to take his wife to the BBMB, Hospital. According to him, she was in coma till her death in P.G.I., Chandigarh. The Additional Sessions Judge has rejected this defence as it was not put to any witness and from the totality of facts and circumstances on record, the case for accidental fire was not probably made out. The statement of Akash DW-1, the son of the appellant, produced in support of the defence is also rejected as tutored and not worthy of any credence. However, the case of the prosecution that the appellant was addicted to drinking and purchase of lottery tickets in bulk and was treating deceased Sumati Verma with cruelty was not held proved by the Additional Sessions Judge, as the prosecution witnesses Ram Dass PW-1, Smt. Vikram PW-5, Baboo Ram PW-6 and Sarwan PW-7, who were the neighbours of the appellant, did not support the prosecution version.

(5.) After hearing learned Counsel for the parties and going through the record this Court does not find it a fit case to interfere with the findings of the Additional Sessions Judge recorded in the impugned judgment. Learned counsel appearing for the appellant has vehemently urged that the dying declarations Exts. PA and PW-4/C are not worthy of any credence for the reasons that these were not recorded in question answer form and if deceased Sumati Verma had suffered 80% burns, as found by Doctor V.K. Chopra PW-8, she was not in a fit state of mind to speak. The learned Counsel has also pointed out some discrepancies in these two dying declarations. According to the learned Counsel, on the other hand the defence version stands proved by the statement of Akash DW-1, the son of the appellant, who is a truthful and natural witness. Learned Counsel has also referred to the judgments in State of Rajasthan v. Prithvi Raj, State of Orissa v. Parshuram Naik, and State of Punjab v. Sita Devi.

(6.) After churning the evidence on record, more specifically, the statements of Shri R.N. Karol PW-4, Doctor V.K. Kapil PW-14 and SHO Hans Raj PW-15, and the documents Exts. PA, PW-4/A and PW4/C, we find that it is proved from the statement of Bhim Singh Mahal PW-11, the Executive Engineer of the BBMB, that the appellant was absent from duty on 3-6-1996. Rather the appellant has himself admitted that he was present in the quarter at the time of occurrence besides his two sons and has not stated that any other person was also present, as such, there was no direct evidence to the occurrence. As per the statement of Doctor V.K. Kapil PW-14 after deceased Sumati Verma was brought in Civil Hospital, Sundernagar he reported the matter on telephone to Police Station, Sundernagar at 4.20 p.m. on 3-9-1996, which message was recorded as Daily Diary Report No. 18 Ex. PW-15/A. On receipt of this message, SHO Hans Raj rushed to the Civil Hospital and thereafter filed application Ex. PW-4/ A to the S.D.M. Shri R.N. Karol PW-4 for recording the statement of deceased Sumati Verma. Since Shri R.N. Karol PW 4 was busy with his official work and had informed the SHO that he would reach the Civil Hospital shortly for the purpose. SHO Hans Raj sought the opinion of Doctor V.K. Kapil by his endorsement Ex. PB on application Ex. PW-4/A and on being certified by Doctor V.K. Kapil that deceased Sumati Verma was fit to give statement, recorded the statement Ex. PA, which is an under: Stated that I am a permanent resident of Shahjadpur Naraingarh. I was married to Shri Anil Kumar Verma 8 years back in accordance with Hindu rites and rituals. I am blessed with two sons. The elder is Akash and is 7 years in age and younger is Lalit 4 years in age. My husband is working as a clerk in Electrical Workshop of BBMB at Sundernagar. My husband is given to the vice of liquor and purchase of lottery tickets. Whether salary of month is given to me by him is taken back by him and is spent in liquor and purchase of lottery tickets. Whole of the salary is spent on it. On 1-6-1996 my husband had taken Rs. 600/- from me and had spent the same on liquor and purchase of tickets. On 2-6-1996. Rs. 1,050/- was spent of the liquor and tickets. Today on 3-6-1996 my husband had taken Rs. 200/- from me and had gone away and he returned to the quarter at 1.30 p.m. and demanded money from me. I stated that I was not in possession of money. At this, my husband took pass book of bank and went away. Thereafter, he returned at 2.30 p.m. and again demanded money. I said that I was not having money. Then my husband set out to set the clothes on fire inside the quarter. I prevented him. Then he started saying that (money) be produced. I refused whereupon he started beating me and had gone to the kitchen and had started smashing (TorFor) containers there and he put bottle of kerosene oil on my clothes and started saying that he would set me on fire. Then he brought a match stick and set me on fire. I cried whereupon women of Quarters No. S-2. 647 and 633 came to the spot. By that time my husband had put a bucket of water on me. My husband had set me on fire with an intent to finish my life.

(7.) The statement Ex. PA was recorded at 4.45 p.m. on the basis of which FIR No. 138/96 was registered at 4.55 p.m. in Police Station. Sundernagar. Shri R.N. Karol, the then Sub-Divisional Magistrate. Sundernagar reached Civil Hospital. Sundernagar and recorded the statement Ex. PW4/C of deceased Sumati Verma at 6.28 p.m. after getting the opinion of Doctor V.K. Kapil that she was fit for giving statement. On both these statements Exts. PA and PW-4/C the impression of left big toe pf deceased Sumati Verma was affixed as her both hands were burnt and impression of her thumbs or fingers could not be taken. Shri Karol PW-4 had also made endorsement of Ex. PW-4/C that he had recorded the statement of deceased Sumati Verma on the request of the Investigating Officer after obtaining medical opinion from 6.28 p.m. to 6.45 p.m., which was given voluntarily by the burnt patient in the presence of Doctor In-charge Vinod Kapil and the police personnel were not allowed to enter the room where the statement was recorded. The statement Ex. PW-4/C is as under: My husband Anil Kumar came to the quarter at 10.00 a.m. today. Asked for funds from me Demanded Rs. 500/- from me. I said that I was not having money. At this stage, Anil Kumar set to open the trunk. Took away bank pass book could not get money from the bank. Returned to quarter at 1.30 p.m. and asked for funds. I said I am having no money then went away. He came at 2.30 p.m. for 3rd time and then he said give money or else he would put clothes on fire. I again said I was having no money. Anil said give money from wherever, you have kept that. I said I have not kept the money. Again he said he would cause fire. Anil entered the kitchen and started smashing (Todna Fodna) ration containers. Kerosene oil was kept in the kitchen. Anil filled half bottle and put the same on me and. then he lighted the match box (Tili Laga Di). Anil smokes bidi, Match box was in the pocket. It all happened after 2.30 p.m. I cried loudly and loudly but no one arrived at. I had put on silk clothes. Then Anil put water on me. Then fire brigade vehicle was sent for through someone not known. Then fire brigade arrived and then the women of neighbourhood arrived. I do not know the names of the women of neighbourhood. Women of neighbourhood changed my clothes and then I was taken to colony hospital and from colony hospital I was taken to this place. I have two children and they are beaten by Anil. Children are afraid of Anil. I am pregnant even now there being 3rd month of pregnancy.T

(8.) From the perusal of the statements, it is clear that these were not recorded in question answer form as alleged by the learned Counsel for the appellant, but it is of no consequence. Both these statements are in the hands of respective scribes i.e. SHO Hans Raj PW 15 and SDM R.N. Karol PW-4, who have categorically deposed that these comprised of the replies given by deceased Sumati Verma to the questions put by them. Learned Counsel for the appellant has not been able to point out any law that dying declaration is vitiated in any manner if it is not recorded in question answer form.

(9.) By now it is well settled that once the statement of the dying person and the evidence of the witness or witnesses testifying to the same is found reliable on careful scrutiny, it becomes very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration by itself can be sufficient for recording conviction even without looking for any corroboration. In Kushal Rao v. State of Boobay, the learned Judges of the Supreme Court have held: In our opinion there is no absolute rule of law or even a rule of prudence which has ripened into a rule of law that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon and made the basis of a conviction.

(10.) Further in Lallubhai Devechand Shah v. State of Gujarat, the learned Judges of the Supreme Court while dealing with a dying declaration have laid down as under:

"The law with regard to dying declarations is very clear. A dying declaration must be closely-scrutinised as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case, bearing in mind on the one hand, that the statement is by a person who has not been examined in Court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent person falsely."

(11.) In State of Assam v. Mafijuddin Ahmed, the learned Judge of the Supreme Court have held: Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration, provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner.

(12.) The dying declarations Exts. PA and PW -4 IC in the present case fully inspire confidence that these are true and free from any embellishment as these were recorded within a period of about two hours from the time deceased Sumati Verma was admitted in the hospital, during which period neither any of her relations nor friends had reached Civil Hospital, Sundernagar to influence her version in any manner. Before recording these dying declarations, the opinion of Doctor V.K. Kapil was recorded that she was fit to give statement, which removes the doubt, which the learned Counsel for the appellant has tried to cast that she was in coma or unconscious and not fit to give statement due to 8O% bums suffered by her. The evidence of Doctor V.K. Kapil PW-14 has further removed this doubt that he has put various questions regarding time orientation and place, which deceased Sumati Verma had answered correctly to verify that she was fit to give statement. This witness was present throughout when statements Ex. PA and PW-4/C were recorded and there are no reasons to disbelieve him. Even Doctor V.K. Chopra, PW-8 who had conducted autopsy on the dead body of Sumati Verma, had stated that her internal organs of speech went intact and she could speak with burnt lips and despite having suffered 8O% bums on her person.

(13.) So far as variation in assessing the percentage of bums by Doctor Kapil PW-14 as 60% to 70% and by Doctor V.K. Chopra PW-8 as 80% is concerned, it is explained by Doctor Kapil PW-14 in This examination in-chief, as noticed by the Additional Sessions Judge, and is of no consequence. After comparing both the dying declaration Exts. PA and PW4/C we do not find any material contradiction, which may cast doubt about their truthfulness and veracity. Both the dying declarations are consistent that when deceased Sumati Verma refused to give money demanded by the appellant, he lost temper and started throwing household articles and thereafter went into the kitchen brought bottle of kerosene threw it on the person of deceased Sumati Verma and thereafter set her on fire with a matchstick. These dying declarations are most natural and trustworthy, as it was not expected of deceased Sumati Verma to speak a lie against her husband with whom she had lived for about eight years and produced two children immediately after suffering 60% to 70% or 80% burns.

(14.) So far as the defence of the appellant that she got burnt accidently in the kitchen is concerned, it is an afterthought, as it was not put to any prosecution witness, more specifically the doctors. Even his defence is disproved that he had tried to extinguish the fire with his right hand and suffered burn injuries thereon which were not opined to have been suffered in his attempt to extinguish the fire by Doctor Jagdish Chand Sharma PW-9, who had examined the appellant and issued medico-legal certificate Ex. PW-9/ A. As per his statement there should have been injuries on other parts of the body of the appellant if he had tried to extinguish the fire with his right hand for the reason that his left hand was nonfunctional as in the normal course a person tries to use all parts of his body for extinguishing the fire and not only one hand. Moreover. Ram Dass PW-1 and Smt. Vikram PW-5, who had reached on the spot immediately after the occurrence had not found the appellant doing anything to suggest that he had tried to extinguish the fire. However. Babu Ram PW-6 has stated that he had come to his shop to inform that his wife stood burnt and the Fire Brigade be informed, which does not suggest that she got burnt accidently as per his defence.

(15.) The next submission made by the learned Counsel for the appellant is also without any substance that the statement of Akash DW 1, who was eyewitness to the incident is reliable to hold that deceased Sumati Verma got burnt accidently and the appellant tried to extinguish the fire with his hand and by putting water on her. Akash DW-1 was 7 years of age when his evidence was recorded on 25- 7-1998. The cross-examination of this witness reveals that he was thoroughly tutored, the possibility of which cannot be ruled out in view of his tender age and the fact that he was living with the elder brother of the appellant, who must be interested to save his brother. He abstained from saying anything about the parents or brother of his mother and even about his neighbours at Sundernagar, which shows that he had made statement to the extent he was tutored. We find that he was cited as witness by the prosecution and had appeared in the court on 16-8-1997, when the Additional Sessions Judge was on leave and also on 15-10-1997, when he was given up as having won over but he has denied having visited the Court on these dates, which is against the record and clearly establishes that he was tutored. Therefore, in view of the evidence of the prosecution more specifically of Shri R.N. Karol PW-4. Doctor V.K. Kapil PW14 and SHO Hans Raj PW-15 the evidence of Akash DW -

1 deserves to be rejected. It is well settled that children are prone to tutoring and they even begin to imagine and even start telling stories, as such their evidence should be scrutinised with great care and caution. (16.) So far as the judgments cited by the learned Counsel for the appellant in State of Rajasthan v. Prithvi Ram. State of Orissa v. Parasuram Naik and State of Punjab v. Sita Devi (supra) are concerned, these are in the facts and circumstances of each case and do not suggest that the dying declarations, if inspire confidence, as in the present case, should not form basis for conviction. In State of Punjab v. Sita Devi (supra), the learned Judges of the Punjab and Haryana High Court were dealing with an appeal against the acquittal and refused to interfere with the judgment of trial court by holding that out of the two dying declarations, one recorded by the police on which FIR was registered and another by Executive Magistrate were not trustworthy for material contradictions found in them and for the reason that the Magistrate had not recorded the statement in his handwriting and got it recorded through stenographer and no certificate was given that the deceased was fit to make statement and the presence of alleged eye-witnesses on the scene of occurrence was doubtful. Similarly, in State of Rajasthan v. Prithvi Raj (supra), the learned Judges of the Supreme Court refused to interfere with the acquittal recorded by the High Court by finding major infirmities ill the three statements recorded by Assistant Sub-Inspector, Magistrate and Doctor. Further in State of Orissa v. Parasuram Naik (supra) also the oral dying declaration made to mother and another dying declaration recorded by Doctor that her husband had poured petrol on her person and lit fire, were disbelieved in the absence of certificate showing the deceased to be medically fit to make statement. (17.) Therefore, the result of above discussion is that there is no merit in this appeal and it is rejected. The impugned judgment dated 5-5-1998 passed by Additional Sessions Judge. Mandi is affirmed and conviction and sentence imposed upon the appellant are upheld. Appeal dismissed.