Judgment S. H. S. Abidi, J. 1. Appellant Permeshwar Sao, has been convicted under section 302 I. P. C. and sentenced to undergo rigorous imprisonment for life. The ferdbeyan, Ext.2 was given on 29-1-1987 at 8 p. m. in Modidih hospital at Dbanbad, by Mina Devi, the deceased herself. She has said that on 29-1-1987, at about 6 p. m. , her husband Permeshwar Sao came to the house after taking wine and asked her as to whether she had prepared food. She replied that she had prepared food, but said that he has again come after taking wine. Upon this, her husband, Permeshwar began to abuse her and bolted the house from inside and poured kerosene oil, which kept in a bottle, on her body. Thereafter he burnt a piece of paper from the oven, and set the fire on her body, on account of which, her body caught fire. Her daughter Meera was also there in the room. She and her daughter began to cry and raise alarm. Her husband Permeshwar had tied the bolt of the door by a rope on account of which she was not able to run out, although she attempted to run out. On hearing the alarm, sufficient number of persons from the neighbour collected and broke open the door from outside. Her husband also began to cry from inside and he also went outside after that. Then the neighbours took her to the Modidih hospital by lifting her. Her daughter Mira the eye witness of this occurrence, can give the details of the occurrence and also the persons collected at the spot can say, although she did not know the names of all of them Also she said that her husband with an intention to kill her had sprinkled kerosene oil on her body and bad set fire, on account of which her both the hands, chest and heirs were badly burnt, for which treatment was going on in the hospital. 2. On the basis of this ferdbeyan which the A. S. I. recorded, on getting information from the hospital, F. I. R. , Ext.4, was registered on 29-1-1987 at 9 p. m. at Jogta police station. The victim was under treatment in the hospital, but she died there. 2. On the basis of this ferdbeyan which the A. S. I. recorded, on getting information from the hospital, F. I. R. , Ext.4, was registered on 29-1-1987 at 9 p. m. at Jogta police station. The victim was under treatment in the hospital, but she died there. On the basis of the information of death received from the hospital on 4-2-1987, he wrote to the Officer Incharge saraidih for post mortem examination and requested the learned C. J. M. , to add Sec.302 I. P. C. also iu the case. The post mortem examination is said to have been done by Dr. Binod Kumar, P. W.4, on 5-2-1987 at about 7 a. m. He submitted the post mortem examination report to the I. O. which was received by him on 8-2-1987. Before that also, the I. O. went to the place of occurrence, where he found in one kothri rice and dal and also fish in a karahi. In one thali some eaten rice and dal was found. He also found a mud oven which was burning. He also recovered a bottle of kerosene oil which was hanging by the wall. After completing the investigation he submitted charge sheet against the appellant. 3. In his defence, the appellant denied the prosecution case and alleged that he has been falsely implicated in this case. Suggestions have been made on his behalf that it was a case of suicide by her. No witness has been examined in defence. 4. The prosecution in support of its case, examined 9 witnesses. P. W.1 mira Devi is the daughter of the deceased and the appellant. She, although not declared hostile, has said against the version given by her victim mother. P. Ws.2 and 3, Gobardhan Bahai and Darogi Bhuian the neighbours reaching the place of occurrence immediately after the occurrence have deposed about her statement given to them and also being the same in the ferdbeyan. P. W.4 Dr. Binood Kumar, had conducted the post mortem examination. P. W.5 Ashok Kumar Chaudhary the I. O , recorded the ferdbeyan and did most of the investigation and later on handed over the investigation to another I. O. on his transfer. P. W.6, is the compounder of the hospital who has said that the victim had given the ferdbeyan which was recorded in his presence. P. W.7 Munna Chauhan has been declared hostile. P. W.6, is the compounder of the hospital who has said that the victim had given the ferdbeyan which was recorded in his presence. P. W.7 Munna Chauhan has been declared hostile. P. W.8 Gafoor Khan has been tendered. P. W.9 Shayam Sunder Thakur is the Sub-Inspector, who has submitted the charge sheet. 5. The learned trial court on consideration of the entire material available on the record has convicted and sentenced the appellant as said above. 6. Learned counsel for the appellant has contended that the sole eye witness, Meera, the daughter of the deceased and the appellant, has not supported the version given by the deceased in her ferdbeyan and as such the case of the prosecution is falsified. It was also contended that the ferdbeyan recorded by the I. O. could not be treated as the dying declaration and it would not be safe to rely on the same. It was further contended that it was not a case of murder, but it was a case of suicide by the victim on account of tension between the appellant and the deceased, as he used to drink too much. Lastly it was contended that the statements of the other witnesses examined by the prosecution do not inspire confidence. In order to appreciate the contentions raised by the learned counsel for the appellant, the evidence adduced in this case is to be scrutinised with much care and caution. 7. Meena Devi was definitely the wife of the appellant and she was living with the appellant along with their daughter Meera, at the relevant time. P. W.5, the S. I. Ashok Kumar Chaudhary, he has said that he recorded the ferdbeyan Ext.5) of Meena Devi at Modidih hospital on 29-1-1987. Where he had gone on a telephonic massage from the hospital. On reaching the hospital he found Meena Devi badly burnt. He made sanha entry No.466 in the diary and in the hospital he had recorded the ferdbeyan of Meena Devi in presence of one S. D. Banerji, the compounder. Whatever she gave out was written by him and the same was read over to her and she put her thumb impression finding the same correctly written. He and the compounder also signed the same. Looking to this ferdbeyan, it appears that she has given out that her husband came in a drunken condition and asked for food. Whatever she gave out was written by him and the same was read over to her and she put her thumb impression finding the same correctly written. He and the compounder also signed the same. Looking to this ferdbeyan, it appears that she has given out that her husband came in a drunken condition and asked for food. She replied that she had prepared food but she objected to his drinking wine, whereupon the accused sprinkled kerosene oil from the bottle and then by burning a piece of paper from the oven he set fire on her body. The appellant had bolted the door from inside and had also tied the same with a rope when she caught fire, she and her daughter began to cry but the appellant did not open the door. The cries and the alarm attracted the neighbours who came and broke open the door and then she was taken out. This statement of the victim lady forms the basis of the F. I. R. which was registered on 29-1-1987. The post-mortem examination wan conducted by Dr. Binod Kumar, P. W.4 on 5-2-1987 at 7 a. m. , who also found burn injuries. The doctor has found Dermo epidermal burn with pus granulation seen on both knees upper half of abdomen, chest, neck, face, both upper extremeties and back of chest. In his opinion the death was due to burn injuries. The time of death was within 48 hours. From this evidence it appears that she had died of burn injuries, after giving the ferdbeyan. 8. Meera Devi, P. W.1 the daughter of the deceased has said that her mother died of burns about a year ago in the night she had given her fish and rise to eat. Her father had gone to Katras. Her mother had not taken food. Her mother had poured Kerosene oil on herself from the bottle and set fire by a match box and on alarm when Basti people came her mother said about setting fire. Her mother told her to say that her father had set fire, otherwise she will also be burnt. Next morning the police came and recorded her statement upon which she put her impression. Her mother has said to the police that her husband had set fire to her. Her mother told her to say that her father had set fire, otherwise she will also be burnt. Next morning the police came and recorded her statement upon which she put her impression. Her mother has said to the police that her husband had set fire to her. She (Meera) has said that she had not told to the police tint at the time of occurrence her mother was sitting on the ground and that her father had poured kerosene oil from the bottle hanging by the wall upon the body of her mother and that after burning a piece of paper by oven, has put the same on the body of her mother and closed the door f. om inside and tied the latches by a rope. She further said that basti people caught hold of her father and gave him to the police. Her mother died after 2-3 days in the hospital. She (Meera) was living with her uncle Bisheshwar and there was none in her house. It was not so that because of tutoring by her uncle she was deposing falsely. She has also said that before this occurrence her mother had Jumped in a pond and the villagers had saved her and she was suffering from epilepsy. 9. Besides this evidence of Meera Devi, there are two other witnesses, oobardhan Bahai and Darogi Bhujan. P. W.2, Oobardhan Bahai has said that at the time of the occurrence, at about 7-30 p. m. , he was in his house which is adjacent to the house of the appellant. On her alarm he went there and found the victim badly burnt. She wanted water which was given to her she said that the appellant had sprinkled kerosene oil upon her. He took the victim to the hospital. He could not say whether the appellant was caught by the police. The victim was sitting on her a small cot, and her daughter was also there. He said that his house is after two houses and in between bis and the P. O. house there was a house of Bishwanath, who was not there at that time. She was taken to the hospital after 10-15 minutes. He did not know whether the Sarpanch or the Mukhia were informed. The victim use to sell fish. Before taking her to the hospital, no information was given to the police. She was taken to the hospital after 10-15 minutes. He did not know whether the Sarpanch or the Mukhia were informed. The victim use to sell fish. Before taking her to the hospital, no information was given to the police. He oad gone to the hospital along with Darogi and Suresh Bhuiyan. She was taken on a cot to the hospital which was about 1 km. He denied the suggestion that he was falsely implicating the appellant on of enmity. 10. Darogi Bhuiyan, P. W.2 has alio said that at about 7-30 p. m. on the date of the occurrence, he was in his house about 5-6 houses away from the appellants house. On hearing the cries he also went these and saw the victim burnt and the appellant was running away crying thief thief. The victim was saying that she was burnt by the appellant by sprinkling kerosene oil and she asked to take her to the hospital. The appellant was caught by the villagers and was kept there. The victim was taken to the hospital. She had also said that the appellant bad borrowed Rs.5000/-for doing fish business and out of this money the appellant used to drink, which was objected by her. She also said that before this occurrence, the appellant had sold her ear rings. He has said that within 10-15 minutes of the occurrence Suresh, Balrarn. Basudeo and Binod had also reached there. The victim Meena had told them that the appellant had burnt her. He had also gone to the hospital. He could not notice as to which part of her bady was burnt. She was taken to the hospital on a cot. Next day, the police came and examined him. He denied that the appelland had and to katras, or that the appellants wife is the deceased had not given incorrect statement or that he was giving false statement. 11. P. W.5, Ashok- Kumar Chaudhary, is the Sub-inspeotor of police, who has recorded the ferdbeyan of the victim upon reaching the hospital on the basis of a telephonic information. The victim had put her thumb impression upon the same in presence of S. K. Banerjee, the compounder. He also prepared the injury report. The statement of the victim was recorded as given by her. The victim had put her thumb impression upon the same in presence of S. K. Banerjee, the compounder. He also prepared the injury report. The statement of the victim was recorded as given by her. On return to the police station, he registered the F. I. R. He went to the place of occurrence at 10 p. m. where he found two small kotharis and one small Aangan. The occurrence had taken place in one of the kotharis where he found rice and dal and also in a Karahi fish. In one thali he found eaten rice and dal. In the Kothri, towards southern corner, there was a mud oven which was burning, One piece of burnt cloth was also found, he seized the burnt cloth, kerosene oil bottle and 3-4 hands long rope before the witnesses, On 4-2-1987. On getting information about the death of the victim, he wrote to the Officer Incharge Saraidela for postmortem and also wrote to the learned C. J. M. to add Sec.302 I. P. C to the offences. He received the post-mortem report on 8-2-1987. On his transfer he gave charge of investigation to one Shyam Sunder Thakur, p. W.9. To the courts question, he replied that he could not get the dying declaration recorded by any Magistrate as there was no Magistrate, nor any doctor was there. According to him what the victim gave out he recorded the same. In the cross-examination, he said that the appellant was arrested outside his house at 10-11 p. m. 12. Besides this evidence, there is also the evidence of PW 6, S. K. Banerjee, the Compounder, who says that on 29-1-1987, in the Modidih hospital, the victim was brought at about 7-30 p m. Since no doctor was there he gave her first-aid. The Sub-inspector of Jagti police station reached hospital and recorded her statement, which was read over to her and she put her thumb impression. He had also signed on the same. He identified his signature Ext.5. He sent tha informant to Loyabad hospital for treatment. He also informed the doctor who asked him to refer her to Loyabad hospital, which he did after giving first-aid to the victim When she was brought to the hospital, she was in senses and gave her statement. 13. Pw 7, Munna Chauhan, who has been declared hostile denied to have given any statement to the police. He also informed the doctor who asked him to refer her to Loyabad hospital, which he did after giving first-aid to the victim When she was brought to the hospital, she was in senses and gave her statement. 13. Pw 7, Munna Chauhan, who has been declared hostile denied to have given any statement to the police. He said that on 29-1-1987 at about 7 p. m. on hearing the alarm from the victim he wept there and found her in burnt condition aad demanding water, which was given to her. 14. With regard to the first contention of the learned counsel for the appellant that the F. I. R. should not be treated as the dying declaration, it appears that at the time when the ferdbeyan was recorded, there was no doctor, but as her condition was not such that the S. I. S. K. Chaudhary could apprehend her death so he recorded her statement in the presence of the compounder. It was later on that she died of the injury. The I. O. on the basis ot the ferdbeyan, registered the F. I. R. Ext.4 and sent the same to the learned Magistrate on 30-1-1987. Immediately after registering the f. I. R. he went to the spot and started investigation. Thus the ferdbeyan or the F. I. R. which is the first version of the victim can be treated as the dying declaration. 15. In the case of Munna Raja V/s. The State of Madhya Pradesh, reported in AIR 1976 SC 2199 , the Supreme Court at page 2201 in paragraph 5 has observed "the learned Sessions Judge probably assumed that since the statement was recorded, as a F. I R. , it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement, before the police, Bahadur Singh succumbed to his injuries and, therefore, the statement can be treated as a dying declaration, and is admissible under section 32 (1) of the Evidence Act. The marker of the statement is dead and the statement relates to the cause of his death. In this assumption, he was clearly in error. After making the statement, before the police, Bahadur Singh succumbed to his injuries and, therefore, the statement can be treated as a dying declaration, and is admissible under section 32 (1) of the Evidence Act. The marker of the statement is dead and the statement relates to the cause of his death. In the case of Dalip Singh V/s. State of Punjab, reported in AIR 1970 SC 1173 , at page 1176, in Paragraph 8 the Supreme Court has observed that "we may also add that although a dying declaration recorded by a police officer during the course of the investigation is admissible under Sec.32 of the Indian Evidence Act, in view of the exception provided in sub-section (2) of Sec.162 of the Code of Criminal procedure, 1973, it is better so leave such dying declarations out of considerations until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a Doctor. As observed by thii Court in munnu Raja V/s. The State of M. P. , 1976 (2) SCC 764 ; AIR 1976 SC 2199 , the practice of the Investigating Officer himself recording dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that bettet and more reliable method of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method". In the case of Fekan Bin and others V/s. The State of Bihar and others, reported in 1988 BLJ-29, a Division Bench of thia Court at page 32, Paragraph 7 has observed of course the informant could not be examined due to her death, but the F. I. R. has been admitted in evidence. No word has been said in the F.1. R. that any bomb was exploded at the time of occurrence. No word has been said in the F.1. R. that any bomb was exploded at the time of occurrence. We are conscious of the fact that in absence of the evidence of the informant, the statement made in the F. I. R. cannot be used, but the fact remains that the informant is dead and the F. I, R. has been brought on the record by the prosecution, Therefore, the F. I. R. cannot be lost sight of, which contains the earliest version of the occurrence and in a criminal trial the earliest version has its own importance for the just decision of the case. " Thus on the basis of the ferdbeyan, the F. I. R. Ext.4. which was recorded by the I. O. PW 5 In the presence of the Compounder (PW 6), she had given the earliest version in this case to the PWs 2-3, and both the versions (one in the ferdbeyan and the other to PWs 2 and 3) are one and the same therefore the ferdbeyan can be treated as dying declaration because immediately after the ferdbeyan she died and this ferdbeyan gives out the course of her death. 16. The contention is that Meera, the daughter of the deceased has not supported the version given by the deceased in her statement and so the other evidence should not be relied on. As tsgards the contention, Meera was a child, and her age assessed on 21-6-1988 as about 10 yean. Whereas occurrence is of 29.1-1987. So at the time of the occurrence, she must have been of 9 years or even less. She is the deughter of the appellant also and had come from the custody of her uncle, though she denied tutoring. A child witness can be a witness of truth and there is no bar to accept the statement given by her, but on account of tenderness of her age, prudence requires that her testimony should be corroborated. The Supreme Court in the case of gurcharan Singh V/s. The State of Haryana, AIR 1972 SC 2661 , at page 2666, (para 13) has observed that in case of a common village girl of less than 16 years, due allowance must be made for her statement in court during the course of cross-examination by the counsel for the defence. The Supreme Court in the case of gurcharan Singh V/s. The State of Haryana, AIR 1972 SC 2661 , at page 2666, (para 13) has observed that in case of a common village girl of less than 16 years, due allowance must be made for her statement in court during the course of cross-examination by the counsel for the defence. In the case of tehal Singh V/s. The State of Punjab, reported in 1979 SC 1347, the Supreme court has said that a body of 13 years from a rural area with mature understanding cannot be treated as a child witness. In the case of Suresh V/s. The state of UP. ,reported in 1981 SC 1122, at page 1125, Paragraph 11, the supreme Court has said that "coupled with these considerations is the fact that the basic evidence in the casa is of a child of 5, who answered many vital questions with a nod of the head, one way or the other. A witness, who by reason of his immature understanding, was not administered oath and who was privileged by reason of years, not to make his answers in an intelligiable and coherent manner is unsafe to be trusted wholesale. . . . . . . . . . . . . . . Children in the first place mix np what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray. " 17. In this case, a child of 9 years, who has lost her mother and has got only her father and none left in the house and who has come from the custody of her uncle, even though she denies that she was tutored or beaten not to unfold the truth, yet the fact remains that she has come from the custody of her uncle and the court has not written about her capability of understanding. It appears that she has been administered oath. She is the sole eye witness and has given the statement contrary to that given by the deceased in the ferdbeyan and also the two neighbours. It appears that she has been administered oath. She is the sole eye witness and has given the statement contrary to that given by the deceased in the ferdbeyan and also the two neighbours. The statement of the victim herself was recorded in the hospital in the presence of the compounder, who is an independent person and has got nothing against the appellant nor has the appellant got anything against him. Further nothing has come out that the I. O. who recorded the statement of the victim had got animous against the appellant. Not only this, immediately after recording the ferdbeyan. the I. O. came to the place of occurrence and PWs 2 and 3 also gave out the version as given by the victim herself and recorded in the ferdbeyan at the Hospital. The persons who had taken the victim to the hospital have candidly supported the case what the victim herself had given in the ferdbeyan. There is nothing on the record to show that they have got any animous against the appellant to falsely implicate him. In these circumstance, the evidence of PW 1, Meera Devi, who is a child witness, does not find corroboration and it cannot be relied upon. 18. There are also the conduct of the appellant and also bis explanation and suggestions that the victim herself committed suicide. Though the presence of the appellant on the spot has been challenged yet the same is made out from the evidence of PWs 2, 3 and 5, besides the ferdbeyan. Therefore even if she committed suicide, it was expected of him to take her to the hospital. On the contrary, he is said to be running away, crying out thief thief but he was caught by the villagers and was given over to the police which came to the spot after reeording the ferdbeyan in the hospital. Besides the conduct, suggestions in defence have been made that she herself committed suicide and falsely implicated the appellants. The daughter appears to have been tutored to make such statement, such conduct and false explanation cannot be ignored. Prosecution cannot take advantage of the false explanation given by the appellant. 19. Besides the conduct, suggestions in defence have been made that she herself committed suicide and falsely implicated the appellants. The daughter appears to have been tutored to make such statement, such conduct and false explanation cannot be ignored. Prosecution cannot take advantage of the false explanation given by the appellant. 19. In the case of Stale of Haryana V/s. Sher Singh, reported in AIR 1981 sc 1021 , at page 1026 at Paragraph 6 (iv), the Supreme Court observed that" in addition, another circumstance tends to support the complicity of the respondent in the offence. It is the conduct of the respondents. The two deceased, who had been murdered, by whomsoever, it might be, were blood relations of the respondents. If the murder had been committed by some others, as supported by the High Court, they would not have kept quiet. Of course they have stated in their offence that they were away from home in some other place and returned to the place of occurrence on 17th october.1973, which has been found by us to be untrue. This conduct of the respondent is incriminating. In another decision of Suresh V/s. The State of U. P. , reported in 1s81 SC 1122, it was observed at page 1124, at Paragraph (6) that "it the appellant was present in the house at the time when geeta was assaulted, it becomes necessary to examine his conduct without shifting the burden of proof on him. If the mistress of the house was killed by robbers, we should have thought that the appellant would raise a hue and cry at least after the robbers had made good their escape. He did nothing of the kind and a little while later, he quitely walked to a neighbourer and trotted out the story that a few "badmashes" intruded into the house and killed Geeta and her son. " In these circumstances, it is sufficient to show the conduct of the appellant that he was present at the spot but he tried to mislead the people making it a story of thief and tried to run away. The conduct of the appellant in the background of the case, gives force to the guilt of the appellant. 20. " In these circumstances, it is sufficient to show the conduct of the appellant that he was present at the spot but he tried to mislead the people making it a story of thief and tried to run away. The conduct of the appellant in the background of the case, gives force to the guilt of the appellant. 20. Thus considering all the facts and circumstances of the case and on scrutiny of the evidence available on record, it is established that it is the appellant who committed the murder of his wife and so the judgement of conviction and sentence passed by the learned trial court appears to be well founded and is liable to be maintained. 21. In the result, I find no merit in this appeal, which is dismissed. The appellant is in jail. He will serve out his sentence. Amir Das, J. , I agree. Appeal dismissed.