Judgment : ARUNACHALAM, J.: 1. The alleged murder of his wife Kamala and causing hurt to his son Seenu, at or about 11.30 p.m. on 1.4.1984 at his residence, No. 12, Rangappan Street, Mettupalayam, Otteri, Madras, landed the appellant before the VII Additional Sessions Judge, Madras, to face his trial in Sessions Case No.69 of 1984 on charges framed under Secs. 302 and 324 of the I.P.C. The learned Sessions Judge, after an elaborate trial, accepted the prosecution case, found the appellant guilty on both the charges and sentenced him to undergo imprisonment for life for the capital offence and two years rigorous imprisonment under Sec.324 of the I.P.C. The sentences of imprisonment were directed to run concurrently. 2. The prosecution case in brief is as follows: The residence of the appelant, a thatched house, was divided into two portions separated by a partition wall about 6 to 6 1/2 in height. Thus, there was an open space between the wall and the roof. The appellant was residing in a portion of the house, while the other portion was occupied by P.W.1, Krishnamoorthy. The appellant was living in his portion along with his wife, the deceased Kamala and his son Seenu, aged about a year and a half, at the time of occurrence. The occupants in each portion, would be easily able to hear, whatever transpired on the otherside. The appellant was an employee in TANSI. He had developed illicit intimacy with hisco-workerSuriyakala. On this score, there used to be frecuent quarrels between the appellant and his wife. At or about 7 p.m. on 1.4.1984, P.W.1 heard a wordy quarrel, between the appellant and the deceased, protracted for about half an hour. P.W.1 took his bed at or about 11 p.m. He heard loud shouts and cries. He also noticed flames all over his house. He opened the door and rushed out. He found deceased Kamala, running in flames, with burn injuries. P.W.2, Subramaniam, on hearing hue and cry, that his aunt Kamala was flames, rushed towards the scene with his parents and grand mother. He found the victim lying with burn injuries. P.W.3 Kamaraj; a neighbour, also cams out of his house and found the deceased lying in front of the entrance of his house in flames. P.Ws.1 to 3 put out the fire and went inside the house of the appellant. He found the victim lying with burn injuries. P.W.3 Kamaraj; a neighbour, also cams out of his house and found the deceased lying in front of the entrance of his house in flames. P.Ws.1 to 3 put out the fire and went inside the house of the appellant. The appellant was not to be found, but they noticed child Seenu, with burn injuries. Seenu was brought out.and an ambulance driven by Sundararaj (P.W.7) arrived soon thereafter at the scene, at the instance of P.W.2. Deceased Kamala and baby Seenu were taken to the Kilpauk Medical College Hospital in the ambulance, by P.Ws. 1 and 2 accompanied by Kanthammal, the grand mother of P.W.2. 3. At or about 12.20 a.m. on 2.4.1984, Dr.Mythili (P.W.5) examined Kamala and Seenu. Kamala was conscious and was able to speak. P.W.5 noticed that Kamala had sustained 90% burn, while Seenu had 30% burns. Kamala told P.W.5 that her husband Vijaya Rao (appellant) had poured kerosene over her and set fire, at or about 10 p.m. on the same night. She also staled that baby Seenu caught fire, since he was near her. After giving preliminary treatment. P.W.5 admitted Kamala and Seenu in the burns ward. Ex.P-4 is the copy of the accident register for Kamala and Seenu. In Ex.P-4, the statement of Kamala, has been recorded by P.W.5. 4. After admission of Kamala and Scenu in the hospital, P.W.9 Dr.Govindan, Duty Medical Officer, examined Kamala at or about 12.50 a.m. The victim gave out the history of her husband having poured kerosene over her, and setting fire. P.W.9 had made an entry in the case sheet, Ex.P-5. The condition of Kamala was deteriorating. Around 1.15 a.m. she was not able to answer questions, since she was put on sedation. Information was forwarded to the police. When the police officer arrived at or about 2 a.m. to record the dying declaration, victim Kamala was fully unconscious and not in a position to talk. Kamala breathed her last at or about 4.15 a.m. on 2.4.1984. 5. P.W.15, Murthy, Sub Inspector of Police, R6 Kumaran Nagar Police Station, on the basis of the telephone message received from the Kilpauk Medical College Hospital, by the State Writer, proceeded to the said hospital at or about 1.05 a.m. He could not examine Kamala, since she was unconscious. Kamala breathed her last at or about 4.15 a.m. on 2.4.1984. 5. P.W.15, Murthy, Sub Inspector of Police, R6 Kumaran Nagar Police Station, on the basis of the telephone message received from the Kilpauk Medical College Hospital, by the State Writer, proceeded to the said hospital at or about 1.05 a.m. He could not examine Kamala, since she was unconscious. He questioned P.W.1, who was there and recorded his statement Ex.P-1, to his narration and obtained his signature on it. On Ex.P-1, he registered Crime No. 189 of 1984 under Sec.307 of the I.P.C, at or about 2.30 a.m. Ex.P-15 is the printed first information report. Seenu, who was admitted in the hospital with burns, was discharged on 4.4.1984. Ex.P-8 is the relevant case sheet. P.W.11, Dr.Kamalakar Rao, who had treated Seenu, was of the opinion that the burn injuries noticed on him, were superficial and simple in nature. Ex.P-9 is the wound certificate. 6. P.W.15, directed Photographer Ratnam (P.W.8) to take photographs at the scene of occurrence. M.O.9 series and M.O.10 series are the negatives and photographs respectively. At the scene, P.W.15 prepared the observation mahazar, Ex.P-2 as well as Ex.P-16, rough scene sketch, in the presence of P.W.4 and another. P.W.15 seized M.O.1 a mat; M.O.2 a pillow; M.O.3 a towel; M.O.4 brassiere; M.O.5 match box. M.Os.6 and 7, kerosene tin and lid respectively; and M.O.8 series, match sticks under mahazar Ex.P-3 attested by the same witnesses. He searched for the appellant, but he could not be traced. When he returned to the police station at or about 6.30 a.m. he had a telephonic message that Kamala had expired. He obtained the death intimation, Ex.P-17 through a messenger at or about 7.30 a.m. Soon thereafter, he altered the crime into one under Sec.302 of the I.P.C. and prepared express first information report, Ex.P-18; copies of Ex.P-18 were forwarded to court and to his superior officers. P.W.16, Vasanthakumar, the then Inspector of Police, took up further investigation. In the Kilpauk Medical College Hospital mortuary, P.W.16 conducted inquest over the corpse of Kamala between 8 a.m. and 11 a.m. on 2.4.1984, during the course of which he examined P.Ws.1 and 2. Ex.P-19 is the inquest report. After inquest, he forwarded the dead body, with a requisition Ex.P-10, through police Constable, Mayakkannan (P.W.13) to Dr.Amrit Patnaik (P.W.12), for the conduct of Post morterm. 7. Ex.P-19 is the inquest report. After inquest, he forwarded the dead body, with a requisition Ex.P-10, through police Constable, Mayakkannan (P.W.13) to Dr.Amrit Patnaik (P.W.12), for the conduct of Post morterm. 7. P.W.12 conducted autopsy on the dead body at 1 p.m. on 2.4.1984. He found smell of kerosene on the hairs of left temple region of the scalp, occipital region and hair lied in the form of a plaint. There was slight wetting with smell of kerosene on the hands of the examiner, on touching and examining the plaint. P. W.2 also found the hair on the vault of the skull and the posterior biparietal regions smelling of kerosenes. The following external injuries were noticed: “1. Superficial burns involving the face, ears and neck; front of the trunk excepting right lumbar and right umbalical regions of the front of the abdomen; both lower limbs in their entire excepling the soles of the feet; the entire back of the trunk and skin on labia majera on both sides. The epidermis was blackened and pulling off in many areas and emitting smell of kerosene. Epidermis present on the front of trunk and neck which was blackened and emitting smell of kerosene. There was antemortem blisters on the palmer aspect of both hands and on the front of the abdomen. There was clear line of demarcation in the form of red inflammatory reaction between the burnt and unburnt areas on the front of the abdomen. Eye brows and eye lashes on both sides, and a few hairs on either sides of the mons pubis and posterior biparietal regions of the scalp were partly signed. 2. A transverse incised sutured wound measures 1 × 0.5 cms. and skin deep on the inner aspect of the right ankle. It was a surgical wound.” The following internal injury was also noticed. “1. A bruise of reddish discolouration 3×2 cms. underneath the scalp on the right posterior frontal region.” P.W.12 did not find any other internal injury on the body of victim. In the opinion of the Doctor, the deceased would appear to have died of extensive burns sustained by her. Ex.P-11 is the Post mortem certificate. 8. P.W.16 forwarded the material objects seized during investigation for chemical analysis through court. Ex.P-14 is the report of the Chemical Analyst. 9. In the opinion of the Doctor, the deceased would appear to have died of extensive burns sustained by her. Ex.P-11 is the Post mortem certificate. 8. P.W.16 forwarded the material objects seized during investigation for chemical analysis through court. Ex.P-14 is the report of the Chemical Analyst. 9. P.W.16 arrested the appellant at or about 7.15 p.m. on 3.4.1984 at the junction of Perambur Highways and Chandra Yogi Samadhi Road and took him to the police station. Since P.W.16 found burn injuries on the appellant, he forwarded him to the Kilpauk Medical College Hospital for examination and treatment. P. W.10,Dr.C.R.Doss at or about 9.45 a.m. on 3.4.1984 found burn injuries on the right hand, right foot, right side of the face and neck of the appellant with blisters to the extent of 10 percent, first degree. Ex.P-7is the case sheet referable to the appellant. The appellant was discharged from the hospital on 17.4.1984. In the opinion of P.W.10 the appellant could have sustained these injuries, if a person in flames had crossed him since all the injuries were found on the right side of his body. Ex.P-6 is the copy of the wound certificate. The injuries noticed on the accused were simple in nature. 10. On transfer of P.W.16, his successor (not examined) laid the charge sheet against the appellant, before the committal court on 11.5.1984, after completion of investigation. 11. When the appellant was questioned under Scc.313, Crl.P.C. to explain the incriminating circumstances appearing against him in evidence, he denied his complicity it the crime. He chose to file a written statement in which he has stated, that deceased Kamala used to pick up unnecessary quarrels with him frequently, and that on the night of 1.4.1984 when he was fast asleep in his room, he woke up on hearing the caries “fire” “fire”. He found his wife in flames. He tried to put out the fire. While doing so, he also sustained burn injuries. His neighbours poured water on his wife and put out the fire. She fainted and fell down. His wife and child were taken to the hospital in an ambulance. On information, police arrived at the scene, on the occurrence night itself, and caught hold of him. He was detained at the police station for two days and later sent to the hospital. She fainted and fell down. His wife and child were taken to the hospital in an ambulance. On information, police arrived at the scene, on the occurrence night itself, and caught hold of him. He was detained at the police station for two days and later sent to the hospital. He informed the Doctor that he had sustained burn injuries, while trying to put out the flames on his wife. The wound certificate, in which such a record was made by the Doctor, had not been produced by the prosecution. He claimed innocence and went on to add, that he had been falsely implicated at the instigation of the relatives of his wife. He did not choose to adduce any evidence, in defence. 12. The learned trial Judge, on meticulous appreciation of the oral and documentary evidence, accepted the prosecution case, rejected the defence and dealt with the appellant in the manner indicated earlier. 13. Mr.P.Venkatasubramaniam, learned counsel representing the appellant, contended that Exs.P-4 and P-5 cannot be treated as substantive evidence and on that sole ground, the prosecution case has to be thrown out. He then pointed out, that in Ex.P-19, the inquest report in column 11 the Investigating Officer had only noted that there was suspicion against the appellant. If that be so, it can be presumed, that Exs.P- 4 and P-5 were not available with the Investigating Officer, when the inquest was conducted, though he would claim, that he had collected Ex.P- 4 from the medical officer on the occurrence night itself. He then argued, that the appellant had also sustained burn injuries and his defence was totally probable. He also pointed out the evidence of P.W.3, to persuade us to hold, that the appellant was in the custody of the police even on the next morning at or about 3.30 a.m. On the basis of the evidence of P.W.3, the alleged arrest of the appellant on 3.4.1984 cannot be true. He contended that Exs.P-4 and P-5 did not contain the signature or the thumb impression of the deponent, and further precautions necessary to lend assurance to a dying declaration had not been adopted. According to the learned defence counsel, the appellant, due to these infirmities, was entitled to the benefit of doubt. 14. On these contentions, we have heard Mr.S.Shanmughavelayudham, the learned Additional Public Prosecutor. According to the learned defence counsel, the appellant, due to these infirmities, was entitled to the benefit of doubt. 14. On these contentions, we have heard Mr.S.Shanmughavelayudham, the learned Additional Public Prosecutor. He contended, that Exs.P-4 and P-5 were dying declarations, admissible under Sec.32 of the Indian Evidence Act. The medical evidence furnished by Dr.C.R.Doss (P.W.10) would be sufficient to hold, that the appellant had sustained burn injuries, when he had crossed the victim, who was already in flames, since all the injuries were on his right side. He contended that the medical officer, who noticed the precarious condition of the victim, had thought it fit to record her statement. Detailed procedure, as the one to be followed by the Magistrate, cannot be expected of the Doctors. The oral evidence of P.Ws.5 and 9 will be entitled to total credence. He urged, that the evidence of P.W.3, as though the appellant was in the custody of the policemen on the next morning, was obviously a mistake, since there was positive evidence let in through P.W. 16, that soon after the arrest of the appellant, he had forwarded the appellant, for medical examination. He also stated, that there was no motive whatever for the deceased to have falsely implicated her husband in this grave crime. The statement of the deceased and the Doctors clearly showed, the manner in which she and her minor son had sustained burn injuries. 15. We have carefully considered the rival contentions placed before us. P.Ws.1 and 2, who were examined to connect the appellant with the crime, did not choose to support the prosecution and, therefore, were treated hostile. P.W. 1 was living in a portion of the house of the appellant, while P. W.2 was living nearby and the deceased was his aunt. It was P.W.1 who had set the law in motion by preferring Ex.P-1, the first information report. Ex.P-1 contains a wealth of details showing not only the motive but also the manner in which the crime was committed. Because P.W.1 has not supported the prosecution his evidence has no value. Ex.P-1 cannot be treated as substantive evidence. Hence contents of Ex.P-1 will not enure in favour of the prosecution. The evidence of hostile P. W.2 is also not useful. P.W.3 was residing at the relevant time, at Rangappan Street, Mettupalayam, Otteri where the appellant and his wife were residing. Ex.P-1 cannot be treated as substantive evidence. Hence contents of Ex.P-1 will not enure in favour of the prosecution. The evidence of hostile P. W.2 is also not useful. P.W.3 was residing at the relevant time, at Rangappan Street, Mettupalayam, Otteri where the appellant and his wife were residing. He had seen, on the fateful nigh t, the deceased lying in front of the entrance of his house engulfed in flames. He was one of those persons who poured water to quench the flames. He has also spoken about P.Ws.1 and 2 taking the deceased and the injured child in an ambulance to the hospital. He has further spoken about the possible motive for this crime. According to him, the appellant who was working in TANS, developed illicit intimacy with a co-employee On account of such intimacy, there used to be frequent quarrels between the appellant and the deceased. On the night of 1.4.1984, while he was sleeping, he heard loud shouts in front of his house, and thereafter found the deceased in flames. There are only three houses in between his house and that of the appellant. The evidence of P.W.3 shows that the appellant had a motive to commit this crime. It is in this background, that we have to appreciate the dying declarations, stated to have been made by the deceased, to the medical officers. 16. The occurrence had taken place at or about 11.30 p.m. P.W.5, Dr.Mythili had examined the victim at 12.20 a.m. within about an hour of the occurrence. She has also deposed, that it was P.W.2 who had accompanied the victim P.W.5 affirms that victim Kamala was conscious when she was produced before her in the casualty department. It was Kamala who had told her, that her husband Vijaya Rao, around 10 p.m. had poured kerosene over her and set fire to her. She also told the Doctor, that the baby also caught fire as it was near her. This statement of the deceased, recorded by P.W.5, forms part of Ex.P-4, the copy of the accident register, contemporaneously made. It was argued that Kamala had stated to the Doctor that her husband had poured Kerosene over her at or about 10 p.m. which goes against the prosecution case, that the occurrence had taken place at 11.30 p.m. This argument has no merit. It was argued that Kamala had stated to the Doctor that her husband had poured Kerosene over her at or about 10 p.m. which goes against the prosecution case, that the occurrence had taken place at 11.30 p.m. This argument has no merit. Kamala had sustained 90% burn injuries and she must have been groaning with pain. The medical officer had felt, that the end of Kamala was so near. In that stage of physical condition, Kamala could not have remembered every minute detail cogently, while narrating the time of occurrence. We cannot expect the victim to have gone by the watch and with arithmetical precision inform the Doctor about the exact time of occurrence, by minutes and seconds. The Doctor has also stated that due to extensive burns suffered by Kamala, even identification marks could not be noted. We have no hesitation in accepting the evidence of P.W.5 that victim Kamala was capable of speaking. P.W.5 has stated, that if the patient was conscious, they used to take a statement. When cross-examined, she had frankly deposed, that the person, who had accompanied Kamala did not volunteer to furnish information, but stated that the victim herself wanted to make a statement. There appears to be nothing unusual in P.W.5 remembering these details, as she is categoric, that this was the only burn case of homicide which she had examined during her tenure of six months in the casualty department of the Kilpauk Medical College Hospital. She further volunteered to slate, that as she was under the impression that patient Kamala would not survive for a long time, she thought it fit to write the name of the assailant, as given by her in Ex.P-4. She did not record a separate statement from Kamala. She has denied the suggestion that the contents of Ex.P-4 had been subsequently written at the instance of the police. She is further certain that she did not ask P. W.2 or other persons as to how the accident had taken place. We are unable to find any reason whatever, which would have impelled P.W.5 to make a false record in Ex.P-4. She had neither any ill-will against the appellant nor any affinity towards the deceased. Ex.P-4 is certainly a dying declaration and will be admissible in evidence. We are unable to find any reason whatever, which would have impelled P.W.5 to make a false record in Ex.P-4. She had neither any ill-will against the appellant nor any affinity towards the deceased. Ex.P-4 is certainly a dying declaration and will be admissible in evidence. In any event, we have the substantive evidence of P.W.5, who has spoken about the manner in which Ex.P-4 came into existence and the truth of the statement recorded therein. It would be unfair to expect a medical officer to record a dying declaration as would be expected from a Judicial Magistrate. We are unable to suspect the origin of Ex.P-4. It is not as though Ex.P-4 alone is available for the prosecution, which connects the appellant with the crime. We also have the evidence of yet another Doctor, P. W.9 who had examined victim Kamala, at or about 12.50 a.m. w thin about thirty minutes after examination by P.W.5. Victim Kamala had herself told P.W.9, that her husband had poured kerosene on her and set fire. P. W.9 is definite, that Kamala was conscipus oriented and was answering questions. Half an hour later at or about 1.15 a.m. the victim was not able to answer his questions, since she was put on sedation and her condition was becoming bad. He has also deposed, that on his information policemen arrived at the hospital to record a dying declaration from Kamala, but could not do so since the victim was fully unconscious and was unable to talk. P.W.9 had recorded Ex.P-5, himself. He has fairly stated, that other persons were also present there, but the statement was given by Kamala and not by anybody else. He also denied that Ex.P-5 was prepared subsequently The evidence of P.W.9 inspires confidence and as in the case of P.W.5, P.W.9 also had no moth whatever to make a false record, as though the victim had implicated her husband as the offender, if she had not so stated. P.Ws.5 and 9 are members of a noble profession and had done their duty in the normal course of their stipulated work at the Kilpauk Medical College Hospital. The deceased had not only stated, that she had sustained burn injuries, but has also affirmed that her child also sustained similar injuries, since it was adjacent to her. P.Ws.5 and 9 are members of a noble profession and had done their duty in the normal course of their stipulated work at the Kilpauk Medical College Hospital. The deceased had not only stated, that she had sustained burn injuries, but has also affirmed that her child also sustained similar injuries, since it was adjacent to her. If as claimed by the appellant, the victim wanted to commit suicide, she would have put away the child a t a safe distance or if she had decided to kill the child as well, the latter could not have escaped with such simple injuries. This factor, taken along with other circumstances, on the face of credible dying declarations, clearly points Out, the appellant as the author of this crime. If the appellant had not committed this offence, one would normally expect him, to have attempted to put off the flames on his wife and immediately taken her to the hospital, for effective treatment. The appellant obviously made himself scarce, even if we accept the evidence of P. W.3 that he was available only on the next day morning in the company of the police. These circumstances cannot be altogether ignored, since it is admissible as conduct evidence under Sec.8 of the Indian Evidence Act. We are not prepared to accept the contention, that the’ evidence of P.W.3, would fix. the presence of the appellant with the police even on the next morningand therefore, the alleged arrest two days later, should not be accepted. If the appellant was available with the police and he had burns, naturally he would have been forwarded immediately to the hospital for treatment as had been done as had been done soon after arrest. There was no reason why the Investigating Officer should trot out .a case against the appellant, if he was innocent; more so when he had the sheet-anchor, in the form of dying declarations. The defence of the appellant has been totally manipulated as though he had sustained injuries, while attempting to save his wife. The evidence of P. W. 10 clearly probabilises the fact that the appellant had sustained injuries found on him in his attempt to cross the victim, who was in flames. If in fact the appellant had attempted to rescue his wife, there was no reason for her to point out her husband as the offender. 17. The evidence of P. W. 10 clearly probabilises the fact that the appellant had sustained injuries found on him in his attempt to cross the victim, who was in flames. If in fact the appellant had attempted to rescue his wife, there was no reason for her to point out her husband as the offender. 17. It is quite true that P.W.15 the Sub-Inspector of Police admits having received a copy of the accident register, on the very same night, from the medical officer. It was only on the next day between 8 and 11 a.m., that the inquest was conducted and in column 11 it has been noted that the appellant was the suspected accused. Merely because of such an entry, the guilt of the appellant, cannot get erased. Since the investigation had commenced on the complaint of P.W.1, in all probability the investigating officer could have presumed, that the complicity of the appellant will have to be fixed, after completion of investigation. When we are unable to doubt Exs.P-4 and P-5, the entry in the inquest report cannot adversely affect the prosecution case. No sinister significance can be attached to this entry. 18. Dying declarations, after careful scrutiny, if held to be credible and acceptable, can form the sole basis for recording a conviction. We have scrutinised Exs.P-4 and P-5 and the evidence of P.Ws.5 and 9 with anxiety, care and caution. We are fully satisfied that Exs.P-4 and P-5 reflect the whole truth and the evidence of P.Ws.5 and 9 has no blemish whatever. All relevant details, sufficient to show that the appellant was the offender, clearly form part of Exs.P-4 and P-5. 19. That the extensive burns sustained by the victim were necessarily fatal, has been spoken to by Dr.Amrit Patnaik (P.W.12). He has found smell of kerosene on the victim and had noted the extensive burns found on the deceased. The evidence of P.W.12 stands unchallenged. Once we believe, that statements made by the victim were recorded in Exs P-4 and P-5 by the medical officers, the non-obtaining of signatures or thumb impressions in these entries cannot cast any dent in the truth of the prosecution case. Exs.P-4 and P-5 were not recorded as dying declarations. They are respectively the wound certificate and the case sheet, which contain entries made in the regular course of medical activity, at the Kilpauk Medical College Hospital. 20. Exs.P-4 and P-5 were not recorded as dying declarations. They are respectively the wound certificate and the case sheet, which contain entries made in the regular course of medical activity, at the Kilpauk Medical College Hospital. 20. We are entirely in agreement, with the verdict pronounced by the learned trial judge. The convictions and sentence imposed on the appellant on both counts shall stand confirmed. This appeal shall stand dismissed.