Per Virender Singh, J. 1. Appellant Havaldar Mangla Kumar (for short `accused') hails from Kerala. At the time of occurrence, he was in Army (care of 56 APO), therefore, stationed at Jammu. He stands convicted and sentenced for life imprisonment vide impugned judgment dated 11.12.2012 penned down by learned Additional Sessions Judge Jammu for allegedly setting his wife ablaze on 24.11.2002 in the morning hours (at about 5.30 am) in a Army quarter No.21/4 allotted to him. Being aggrieved thereof, he has preferred Cr.Appeal No.83/2012. 2. Since the sentence slapped upon the accused requires confirmation by this Court in terms of provisions of section 374 CrPC (State Code), the entire record of the present case has been submitted to this Court. Hence, Confirmation No. 29/2012. 3. Prosecution case in nutshell is as under: On 24.11.2002, Naib Subedar S. Shanker No. JC 371787-H c/o 56 APO submitted a written report in Police Station Gandhi Nagar Jammu that on the same day i.e 24.11.2002 in the morning hours at 5.30 am, D.B. Joshi (PW) made a telephonic call from C.M.P gate to the effect that wife of the accused had got seriously burnt upon which a vehicle was sent to the spot from Unit Headquarters and the injured was shifted to 166 Military Hospital Satwari Jammu. On this information, S.I. Bansi Lal Bhagat (PW) of Police Station Gandhi Nagar, Jammu rushed to the hospital and recorded the statement of Lt. Colonel Dr. S. Nagpal (PW) who was attending to the injured whereupon she told that on the morning of 24.11.2002 at 6.20 am, Subedar B.K.Upadaya had brought Ms. Bindu wife of the accused to the hospital with severe burns of 100%. Since the injured was speaking in Malayalam, she was questioned by Major K.M.Shelja (PW). The injured narrated that she was set ablaze by her husband after pouring kerosene oil upon her. She succumbed to the injuries in the hospital on the same day i.e 24.11.2002 at 1.15 pm. On this, FIR No. 381 of 2002 for the offence punishable under section 302 RPC came to be registered in Police Station Gandhi Nagar. The present case has been investigated by S.I. Bansi Lal Bhagat of the said police station. 4. After completion of the investigation, charge sheet in terms of section 173 Cr.PC was filed against the accused for facing trial under section 302 RPC. The present case has been investigated by S.I. Bansi Lal Bhagat of the said police station. 4. After completion of the investigation, charge sheet in terms of section 173 Cr.PC was filed against the accused for facing trial under section 302 RPC. The case was, thus, committed to the Court of Sessions for regular trial. 5. It needs to be mentioned here that initially the charge sheet against the accused was filed without taking the option of the Commanding Officer of the accused, therefore, the commitment order was set aside by this Court on a reference made by the Court concerned. Thereafter, option of the Commanding Officer was asked for and after obtaining the same, the challan was again committed to the Court of Sessions for trial and now concluded by learned Additional Sessions Judge Jammu in conviction of the accused. 6. Prosecution in order to prove the charge has examined all the witnesses shown in the list of witnesses annexed with the challan except one Subedar Sewa Kant. 7. Brief resume of the prosecution evidence is as under:- PW-1 Lt. Colonel. S. Nagpal stated that deceased-Bindu was brought to Military Hospital at 6.20 a.m. by Major Harminder Singh and Subedar B. K. Upadaya with 100% burns on her body and she was put in ICU for treatment. Since Bindu was not in a position to understand English, Hindi or any other language, Major M. H. Shelja (Pw) was called who could understand the language (Malayalam) of Smt. Bindu. This witness further stated that Smt. Bindu told Major Shelja that her husband had poured Kerosene Oil and set her ablaze at 5.30 in the morning and she prepared Medico Legal Report in this regard which was signed by her. It is exhibited as EXPW-NP. She also admitted her signed statement as correct which was recorded by I.O Bansi Lal Bhagat in urdu (vernacular) and exhibited as EXPW-NP/1. 8. PW-2 Major M. H. Shelja stated that Dr. Lt. Col. S. Nagpal was on duty in ICU when Smt. Bindu was brought in the hospital and she was called by Dr. Nagpal as Bindu was speaking Malayalam language and Dr. Nagpal did not know Malayalam. This witness further stated that Bindu told her that she was preparing tea in the kitchen at 5.30 a.m. when the accused picked up quarrel with her and set her ablaze after sprinkling kerosene oil. Nagpal as Bindu was speaking Malayalam language and Dr. Nagpal did not know Malayalam. This witness further stated that Bindu told her that she was preparing tea in the kitchen at 5.30 a.m. when the accused picked up quarrel with her and set her ablaze after sprinkling kerosene oil. This witness further stated that the victim stated that the accused always used to beat her. 9. In her cross-examination, this witness stated that she translated the statement of Bindu and Mr. Nagpal reduced it into writing. Regarding the conditions of the patient, this witness stated that Bindu was burnt from head to toe, but she was in a position to speak and when she made her statement, the accused and three other staff members were also present there. 10. PW-3/D. B. Joshi happens to be the neighbour of the accused and residing on the ground floor, whereas the accused was putting up on the first floor. This witness deposed that on 24.11.2002, between 5:00 to 5:30 a.m., he heard voices coming from the quarter of the accused, he got up and knocked at the door of the accused which was bolted from inside which was opened by the accused hurriedly and he started crying that his wife was burnt and she would die. He further stated that the accused and the deceased were standing at the door at that time and he rushed back, took his motorcycle and reached TCP from where he informed his unit telephonically. This witness further stated that he was not aware as to how the deceased had received burn injuries but whole of her body had gone blackish and she subsequently died in the hospital. 11. This witness was declared hostile and was cross-examined by Public Prosecutor in which he denied the contents of his statement recorded under Section 161 Cr.P.C, specifically the fact that the deceased told Suresh Kumar and his wife that she was burnt by her husband. He stated that the accused did not use to quarrel with the deceased before the occurrence. 12. PW-4/Naik Suresh Kumar is another witness who was staying in neighbourhood of the accused and hails from Kerala. He stated that the accused did not use to quarrel with the deceased before the occurrence. 12. PW-4/Naik Suresh Kumar is another witness who was staying in neighbourhood of the accused and hails from Kerala. He stated that at 5.30 a.m. when he was sleeping, wife of Pw-D.B. Joshi knocked at his door and told that noise was coming out from the quarter of the accused, upon which he along with his wife reached the quarter of the accused and found the door opened. He saw the accused and his wife standing in a room and on being asked, the wife of the accused told that she caught fire and by that time, the vehicle arrived in which she was taken to the Military Hospital. This witness, however, denied of having made any statement before the Investigating Officer of Police Station, Gandhi Nagar, Jammu. 13. PW-5/S. Shanker stated that on receiving the information about the burning of the wife of the accused, he, under the orders of the Commanding Officer went to Police Station, Gandhi Nagar and then accompanied the police to the place of occurrence. He further stated that in his presence the police took the photographs of place of occurrence, seized a match box, burnt pieces of clothes and a stove (of wicks) from the spot. Seizure memo Expw-SS which was attested by him and one other. This witness identified the articles shown to him in the Court. 14. This witness in cross-examination has stated that stove and match box were not burnt and the colour of the pieces of the clothes were not identifiable. He further stated that stove was less than half filled with kerosene oil. 15. PW-6 in the list of witnesses is Subedar Sewa Kant who has not been produced. 16. PW-7/Constable-Dalbir Singh is a Photographer, who after reaching the spot clicked six photographs. 17. PW-8/Naib Tehsildar-Ram Lal, resealed the seized articles produced before him by the I.O. and issued authority letter Expw-RL for sending those articles to Director FSL for analysis. 18. PW-9/Dr. L. D. Bhagat, conducted the post-mortem of the deceased and proved the post mortem report Expw-LD. In his opinion, the deceased died as a result of extensive burn injuries which were almost 100%. 18. PW-9/Dr. L. D. Bhagat, conducted the post-mortem of the deceased and proved the post mortem report Expw-LD. In his opinion, the deceased died as a result of extensive burn injuries which were almost 100%. He stated in his cross-examination that kerosene oil smell was present over the scalp at the time of post mortem and that a patient with 100% burns could speak till he gets unconscious. 19. PW-10/Baiju is the real brother of the deceased, who stated that the deceased was given gold jewelery and 340 square meter plot in dowry and the said plot was transferred in the name of the deceased and the accused. He further stated that the deceased was also gifted other house hold articles worth Rs.50,000/-. The deceased was a graduate. This witness went on to say that the accused sold 232 grams of jewelery and paid the proceeds thereof to his elder brother- Vijay Parkash who was a contractor who assured that he would return the amount along with interest but neither he returned the principle nor the interest and his sister (deceased) demanded that amount from brother of the accused who instead of returning the same started beating his sister which was not objected to by the accused. Because of this incident, he had brought the deceased back but on the assurance of the accused who visited them after two days, she was sent back. This witness further stated that the deceased was pregnant at that time which got terminated due to beating and mental shock. He further stated that six months thereafter the accused brought the deceased to Jammu where they started living in a family quarter at Satwari and the accused started beating the deceased after taking alcohol. This witness further stated that the deceased was pregnant at that time which got terminated due to beating and mental shock. He further stated that six months thereafter the accused brought the deceased to Jammu where they started living in a family quarter at Satwari and the accused started beating the deceased after taking alcohol. This witness further stated that Vijay Parkash, brother of the accused, wanted to start a factory as he was in need of money and he suggested the accused that the plot which was in the name of the accused and the deceased be mortgaged or sold for that purpose and he advised the accused to obtain signatures of the deceased on blank papers to which the deceased was not agreeing and on 22.11.2002 the deceased called him from STD and disclosed to him that the accused used to beat her and she wanted that someone should take her back and she further wanted to talk to her parents on next day but they did not get any call from her and on 24.11.2002, someone called from Military Hospital and told them that the deceased was badly burnt and when they reached Jammu on 25.11.2002, she had already expired. This witness further stated that the doctor told him that the accused had burnt her by pouring kerosene oil on her. Dead body of the deceased was handed over to this witness for her last rites. 20. PW-11/Gian Chand is a witness of formal character as specimen of the seal was handed over to him by the Investigating Officer. 21. PW-12/S.I. Bansi Lal is the Investigating Officer of this case. On the day of occurrence, he was posted in Police Station, Gandhi Nagar, Jammu. On 24.11.2002, he recorded the statement of Lt. Col. S. Nagpal and thereafter, conducted the spot inspection and seized the articles vide Expw-SS. He also examined the witnesses under Section 161 Cr.P.C. Post mortem and FSL reports were also collected by him. 22. PW-13/Shamsher Singh Parihar was the SHO of Police Station Gandhi Nagar. He deputed S.I. Bansi Lal Bhagat for the investigation of the present case. He also accompanied the police personnel to the Military Hospital and the place of occurrence. 23. PW-14/Rohit Koul is the Scientific Expert from FSL who examined three packets sent to him. He proved his report Expw-RK. PW-13/Shamsher Singh Parihar was the SHO of Police Station Gandhi Nagar. He deputed S.I. Bansi Lal Bhagat for the investigation of the present case. He also accompanied the police personnel to the Military Hospital and the place of occurrence. 23. PW-14/Rohit Koul is the Scientific Expert from FSL who examined three packets sent to him. He proved his report Expw-RK. This witness stated that he observed fractions of kerosene on the semi burnt pieces of clothes and the wick stove was found containing kerosene oil. 24. The accused when confronted with the prosecution evidence on record in terms of Section 342 Cr.P.C., he claimed that the deceased did not make any statement to Dr. S. Nagpal and Major Shelja. With regard to demand of dowry or having beating his wife at any stage, he also denied this fact. He also denied the arrival of any witness at his quarter in the wee hours of 24.11.2002 after he raised an alarm. He, however, stated that his wife was suffering from depression and he had informed about this fact to her family members and in this connection, a letter was also written to the deceased in which all the facts were mentioned in detail. 25. It is worth noticing here that the accused, who otherwise admits his presence in the quarter, does not explain as to how his wife received burn injuries, whether these are accidental or suicidal and whether he made any effort to save her. 26. The accused also lead some evidence in his defence. 27. DW Anant K deposed that he used to visit the house of the accused and that the wife of the accused spoke very less as she did not like any visitor and on 24.11.2002, he went to the hospital after coming to know about burning of the wife of the accused where she was calling her husband who had caught her hand. He further stated that the wife of the accused was unconscious since morning and expired on the same day at 1.15 p.m. 28. Another defence witness is Owais who stated that the deceased was suffering from depression and she used to cry during asleep. He further stated that Baiju, brother of the deceased, told him that his sister had died because of her own mistake and the accused was innocent. 29. Another defence witness is Owais who stated that the deceased was suffering from depression and she used to cry during asleep. He further stated that Baiju, brother of the deceased, told him that his sister had died because of her own mistake and the accused was innocent. 29. Ravindran, an Advocate is the 3rd defence witness who produced the certificate issued by one Dr. Veena Panicker. The certificate reveals that Bindu was admitted in hospital on 26.09.2001 with missed abortion and D & E was done on 29.09.2001. He further stated that he had obtained the certificate of aforesaid doctor in the case filed under Section 498-A/34 IPC against the father, mother and one of the brothers of the accused. 30. However, no record of the treatment of the deceased is placed on record by the accused. 31. Heard Mr. Abrol, learned counsel for the appellant and Mr. Jamwal, learned Deputy Advocate General. Trial Court record also perused. 32. The entire attempt of Mr. Abrol is to dislodge the oral dying declaration made by the deceased before Pws-Major Shelja and S. Nagpal, in the Military Hospital. He submitted that there are deviations from the standard method of recording the dying declaration in this case as the minimum requirement was to reduce the same into writing by Major Shelja in her own hand and thereafter thumb impression of the deceased should have been taken, whereas in the present case, this minimum required method of recording a dying declaration is altogether missing. Learned counsel submitted that before recording the statement of Bindu, there should have been a noting/certificate to the effect by the attending doctor that she was fit to make statement and in the present case, even step is also not taken. According to learned counsel, the dying declaration is otherwise not in question answer form and this again is a ground to see it with a tinge of doubt as exact words coming out of the mouth of the deceased are not clear, more so when Pw-M. H. Shelja and Dr. S. Nagpal are giving two different versions with regard to exact words uttered by the deceased before them. Learned counsel then submitted that the deceased had otherwise received 100% burn injuries and therefore it cannot be said that her mental faculties were intact so as to describe the manner in which she had received burn injuries. S. Nagpal are giving two different versions with regard to exact words uttered by the deceased before them. Learned counsel then submitted that the deceased had otherwise received 100% burn injuries and therefore it cannot be said that her mental faculties were intact so as to describe the manner in which she had received burn injuries. Learned counsel further submitted that admittedly the message was sent to the Police, in the morning itself, still no effort was made to get the statement of Bindu recorded by any Magistrate. 33. In order to cause more dent to the oral dying declaration made by the deceased, Mr. Abrol further submitted that the prosecution in order to lend corroboration to the same recorded the statement of Pw-D.B. Joshi and Suresh Kumar as they are the ones who immediately after the occurrence went at the spot (quarter of the accused) and that the deceased on being asked by Pw-Suresh Kumar and his wife as to how she received burn injuries, narrated that it is the accused who had poured kerosene oil on her and set her ablaze but when Pw-D.B. Joshi stepped into the witness box, he was declared hostile and denied that he had made any statement to the police to this effect. Learned counsel submitted that even Pw-Suresh Kumar, when stepped into the witness box stated that when he asked the deceased as to what had happened to her, she stated that she had received burn injuries (in vernacular Aag Lag Gai Hai). From all this, Mr. Abrol wanted to develop that the occurrence had not taken place in the manner as projected by the prosecution in the dying declaration recorded in the Hospital, there being no corroboration to it, therefore, it would not be safe to convict the accused on such a weak dying declaration. 34. Mr. Abrol then submitted that the prosecution in order project motive for killing the deceased has brought forward PW-Baiju, the real brother of the deceased to show that the accused was harassing the deceased on account of dowry demands and other factors but his evidence is neither here nor there and is demolished by the defence evidence. However, the main attack launched by learned counsel is for disbelieving the oral dying declaration on account of certain flaws as pointed hereinabove and prays for acquittal of the accused. 35. In support of his arguments, Mr. However, the main attack launched by learned counsel is for disbelieving the oral dying declaration on account of certain flaws as pointed hereinabove and prays for acquittal of the accused. 35. In support of his arguments, Mr. Abrol has relied upon the following Judgments:- i) Nallapati Sivaiah v. Sub Divisional Officer, Guntur, AP reported as AIR 2008 SC 19 ; ii) Kanti Lal v. State of Rajasthan reported as 2009 (3) Supreme 360 ; iii) Bawa Ram & anr. v. State of U. T. Chandigarh reported as 2009(3) Supreme 717 ; & iv) Surinder Kumar v. State of Haryana reported as 2011 (12) Scale 172. 36. Per contra, Mr. Jamwal learned State counsel while supporting the impugned judgment of conviction and sentence submitted that the oral dying declaration made by the deceased before two independent persons in the Military Hospital is most truthful and made voluntarily and that by itself is enough to hold conviction of the accused. Learned State counsel submitted that may be the oral dying declaration has not been recorded in the required manner but that would not make it untrustworthy when seen in the entirety of facts and circumstances of the present case. He, thus, prays for upholding of the conviction and sentence already recorded by the learned Trial Court. 37. Nemo Moriturus Praesumitur Mentire: No one at the time of death is presumed to tell lie is the philosophy underlying admittance in evidence of dying declaration. This is the reason that dying declaration enjoys a sacrosanct status as a piece of evidence being in the shape of last words coming from the mouth of the deceased (victim). On the basis of this principle, in `Khushal Rao v. State of Bombay' AIR 1958 SC 22 , their lordships of Apex Court held that it is not a rule of law or even the rule of prudence that `dying declaration' cannot be made the sole basis of conviction. 38. It is held in case State of U.P. v. Ram Sagar Yadav 1985 (1) SCC 552 that if the Court is satisfied that the dying declaration is true and made voluntarily, conviction can be based on it without corroboration. 39. It is also well settled that the Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring prompting or imagination. 40. 39. It is also well settled that the Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring prompting or imagination. 40. In case Dayal Singh v. State of Maharashtra 2007 (3) A.I.C.L.R (All India Criminal Law Reporter) (S.C.) 346, their lordships took into consideration many aspects vis-a-vis the manner of recording the dying declaration and its' evidentiary value in which other judgments of Apex Court were also taken into consideration. It was observed in para 11 as under: "11. The law regarding the dying declaration and the value which is to be attached to it has been examined in considerable detail in State of Karnataka v. Shariff (2003) 2 SCC 473 ; 2003(2) All India Criminal LR (S.C.) 533, by a Bench of which one of us was a member and paragraphs 18, 19, 20, 22 and 23 of the decision are being reproduced below:- 18. The earliest case in which the law on the point of dying declaration was considered in detail by this Court in Khushal Rao v. State of Bombay AIR 1958 SC 22 . The Court ruled that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; 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. It has been further held that in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. 19. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. 19. In State of Uttar Pradesh v. Ram Sagar Yadav, (1985) 1 SCC 552 the Court speaking through Chandrachud, C.J. held as under: "It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. See Khushal Rao v. State of Bombay, AIR 1958 SC 22 ; Harbans Singh v. State of Punjab, AIR 1962 SC 439 ; Gopal Singh v. State of M.P. 1972(3) SCC 268 . There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration....." 20. In K. Ramachandra Reddy and Anr. v. The Public Prosecutor, (1976) 3 SCC 618 it was held that a great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. It was further held that the Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. In Pothakamuri Srinivasulu v. State of AP, (2002) 6 SCC 399 it has been held that if the deceased made statement to the witnesses and their testimony is found to be reliable the same is enough to sustain the conviction of the accused. In Pothakamuri Srinivasulu v. State of AP, (2002) 6 SCC 399 it has been held that if the deceased made statement to the witnesses and their testimony is found to be reliable the same is enough to sustain the conviction of the accused. In Mafabhai Nagarbhai Raval v. State of Gujarat (1992) 4 SCC 69 it was held that the Doctor who has examined the victim was the most competent witness to speak about her condition. 22. The other reason given by the High Court is that the dying declaration was not in question-answer form. Very often the deceased is merely asked as to how the incident took place and the statement is recorded in a narrative form. In fact such a statement is more natural and gives the version of the incident as it has been perceived by the victim. The question whether a dying declaration which has not been recorded in question-answer form can be accepted in evidence or not has been considered by this Court on several occasions. In Ram Bihari Yadav v. State of Bihar and Ors. (1998) 4 SCC 517 , it was held as follows: "It cannot be said that unless the dying declaration is in question answer form, it could not be accepted. Having regard to the sanctity attached to a dying declaration as it comes from the mouth of a dying person though, unlike the principle of English law he need not be under apprehension of death, it should be in the actual words of the maker of the declaration. Generally, the dying declaration ought to be recorded in the form of questions and answers but if dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker the mere fact that it is not question answer form cannot be a ground against its acceptability or reliability. The mental condition of the maker of the declaration, alertness of mind, memory and understanding of what he is saying, are matters which can be observed by any person. But to lend assurance to those factors having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon...." 23. The mental condition of the maker of the declaration, alertness of mind, memory and understanding of what he is saying, are matters which can be observed by any person. But to lend assurance to those factors having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon...." 23. In Padmaben Shamalbhai Patel v. State of Gujarat (1991) 1 SCC 744 it was held that the failure on the part of the medical men to record the statement of the deceased in question and answer form cannot in any manner affect the probative value to the attached to their evidence. This view was reiterated in State of Rajasthan v. Bhup Ram (1997) 10 SCC 675 and Jai Prakash and Ors. v. State of Haryana (1998) 7 SCC 284 ." 41. Let us test the present case on its facts which are available on record on the settled law that the oral dying declaration if made voluntarily and truthfully by a person who is physically in a condition to make such statement, there is no impediment in relying on such a declaration. Primarily, we are testing the oral dying declaration on the touchstone of its reliability and in this exercise, we are examining all the aspects very carefully to arrive at the just conclusion of the case. 42. No doubt, the prosecution in order to get corroboration to the dying declaration has produced two witnesses namely D.B. Joshi (Pw-3) and Naik Suresh Kumar (Pw-4) out of which Pw-D.B. Joshi was declared hostile as he did not support the prosecution case to the extent that the deceased told Suresh Kumar and his wife that she was burnt by the accused and that in the statement of Suresh Kumar also, we do not find this fact that she and her wife on asking were informed by the deceased that the accused poured kerosene oil on her and set her ablaze, but the fact of the matter is that these persons reached the quarter of the accused and saw deceased in a badly burnt condition who was immediately shifted to Military Hospital. Beyond that, the prosecution, certainly, cannot derive any benefit from their evidence. Beyond that, the prosecution, certainly, cannot derive any benefit from their evidence. So, undoubtedly, the prosecution is totally dependent upon the truthfulness of the oral dying declaration of deceased-Bindu made to Major Shelja at 166 Military Hospital Satwari describing the circumstances in which she sustained the burns as only PW Major Shelja could understand Malayalam language of the deceased, whereas Pw-Dr. S. Nagpal was attending to her. 43. We are conscious of the fact that the statement of the deceased is not recorded in question answer form. We are also conscious of the fact that the statement is otherwise not reduced into writing except that an entry to this effect has been made in Medico Legal Report EXNP, maintained in the Hospital by Dr. S. Nagpal. We are also conscious of the fact that before recording the statement of deceased Bindu, there is no certificate in writing given by the attending doctor (PW Dr. S. Nagpal) about her sickness so as to ascertain, whether she could make the statement or not and all this can be said to be somewhat deviation from the normal manner/procedure in which the dying declaration should be recorded but what would be the effect of all these so called irregularities depends upon the facts of each case. 44. One very important fact which the Court cannot lose sight of in this case is that there was nobody from the side of the deceased to tutor or prompt her before she was asked by PW Major Shelja about the manner in which the occurrence had actually taken place in the quarter of the accused resulting into receiving of burn injuries on her person. Rather the accused was present in the Hospital and this fact has come in the evidence also. Dr. S. Nagpal who was attending to the deceased could not possibly tutor her to make a statement against the accused. Had she been knowing Malayalam, the language of the deceased, she herself would have recorded her statement but because of her inability to understand the language of the deceased, she requisitioned the services of Major Shelja who was present in ICU as she could understand Malayalam very well. It has come in the evidence of Dr. Had she been knowing Malayalam, the language of the deceased, she herself would have recorded her statement but because of her inability to understand the language of the deceased, she requisitioned the services of Major Shelja who was present in ICU as she could understand Malayalam very well. It has come in the evidence of Dr. S. Nagpal that the deceased Bindu narrated to Major Shelja that her husband poured kerosene oil on her and put her on fire at about 5.30 in the morning and this fact was narrated to her by Major Shelja. She further stated that she prepared a Medico Legal Report No.344 in this regard which was sent to Police Station for legal action. It is EXPW NP and we have perused the same from the Trial Court record. It is addressed to Police Station, Satwari and signed by Pw-Dr. S. Nagpal. It contains four columns and column 2 relates to circumstances of injury. It has further four sub-columns. Column-A relates to nature of accident where it is mentioned as burns 100%. Column-B relates to place of accident where it is mentioned as Q-P21/4, S. I. Line. Column-C relates to time of accident where it is mentioned approximately 05.30 hours and with regard to last column-D concerning the details of accident, it is mentioned: as per the statement of the patient her husband allegedly poured kerosene oil over her and set her on fire at approximately 05.30 hours on 24.11.2002. 45. The entire Medico Legal Report is typed one and we have also noticed in the details of accident that the word `poured' and date `24.11.2002' are hand written. What appears to us is that Military Hospital does not deal with medico legal cases in routine. They are very few. The Medico Legal Report prepared by Pw-Dr. S. Nagpal, in fact, is in not in that format as is usually maintained by any doctor of Government Hospital. This appears to be the reason that Medico Legal Report No.344 relating to deceased Bindu is prepared by Pw-Dr. S. Nagpal I subsequently in a typed format and then sent to Police Station for action. 46. S. Nagpal, in fact, is in not in that format as is usually maintained by any doctor of Government Hospital. This appears to be the reason that Medico Legal Report No.344 relating to deceased Bindu is prepared by Pw-Dr. S. Nagpal I subsequently in a typed format and then sent to Police Station for action. 46. We are also aware of the fact that when PW Major Shelja stepped into the witness box, she narrated somewhat different words coming out from the mouth of the deceased while narrating the occurrence in which she stated that at 5.30 a.m, she (deceased) went to kitchen for preparing tea and at that time accused started quarreling with her and then he poured kerosene oil upon her and set her ablaze.) Pw-Major Shelja further stated that the deceased told her that the accused always used to beat her. These words are undoubtedly not incorporated in the details of accident narrated in the Medico Legal Report No.344 by Dr. S. Nagpal whereas normally it should have been as whatever was being told to Major Shelja by the deceased was further conveyed to Dr. S. Nagpal, the attending doctor to the victim. It would have been certainly better, in case the entire statement of deceased was reduced into writing. Be that as it may, in this particular case, it would not make the dying declaration untrustworthy as it is made before two non-interested independent witnesses who in routine were on duty in the Military Hospital to attend to the patients. Fact of the matter is that deceased-Bindu who could speak Malayalam and Major Shelja who could understand Malayalam narrated to Major Shelja that it is the accused who poured kerosene oil on her and set her ablaze in his quarter on a particular day and at a particular time. The other words as stated by the deceased to Major Shelja are those words which Major Shelja could remember by heart when she stepped into the witness box in the year 2005. This is what she stated before the police also when her statement was recorded under section 161 CrPC. Dying declaration uttered by the deceased before the aforesaid two witnesses, rather before one witness PW Major Shelja who could understand Malayalam language and the shortness of the statement exactly relating to the occurrence in itself guarantees the truth in it. This is what she stated before the police also when her statement was recorded under section 161 CrPC. Dying declaration uttered by the deceased before the aforesaid two witnesses, rather before one witness PW Major Shelja who could understand Malayalam language and the shortness of the statement exactly relating to the occurrence in itself guarantees the truth in it. In other words, it is a very brief statement relating to the cause of death of the deceased. 47. An attempt has also been made by Mr. Abrol to dislodge the oral dying declaration of the deceased on the ground that she could not make the statement after receiving 100% burn injuries as her mental faculties could not work, may be the victim was little bit conscious. The stress of the learned counsel was that in the absence of any certificate to this effect, it can not be said conclusively that the victim was fit to make statement or was able to understand any query from PW Major Shelja for answering to the same coherently. 48. Undoubtedly, there is not such certificate with regard to the Medical fitness in writing given by PW Dr. S. Nagpal and proved on record. At the same time, no question was put to this witness regarding the fitness of the victim to make statement by either side as one finds from her evidence. However, a specific question was put to PW Major Shelja in this regard by the defence counsel in which she stated that when she recorded the statement of Bindu, she was conscious. She further stated that at the time of recording of statement, she was in a position to speak. In vernacular, it is stated, "Byan Dene Ke Waqt Be Bolney Ki Halat Me Thi". From this one can easily gather that the deceased was in a position to make a statement despite receiving 100% burn injuries and there was nothing unnatural in it also as she was put to required treatment by Dr. S. Nagpal immediately when she was brought to the Hospital at 6.20 a.m. by Major Harminder Singh and Subedar B. K. Upadaya, whose names are mentioned in Medico Legal Report No.344. Dr. S. Nagpal left the Hospital at around 8.30 a.m. as stated by her. S. Nagpal immediately when she was brought to the Hospital at 6.20 a.m. by Major Harminder Singh and Subedar B. K. Upadaya, whose names are mentioned in Medico Legal Report No.344. Dr. S. Nagpal left the Hospital at around 8.30 a.m. as stated by her. Although no exact time of recording the statement is available on record but it can be safely said that the statement of the victim was recorded positively within two hours only and the report also sent in the shape of MLR No.344 to Police Station Satwari by Dr. S. Nagpal. The deceased died at 1.15 p.m. on the date of occurrence itself. Medically also a patient who has received 100% burn injuries can remain conscious and alert initially for some time to speak and mumble few words to make sense and in the case on hand, her statement which is very brief consisting of few words is recorded within the gap of 2 hours only and this exercise is done independent of any bias by two prosecution witnesses Dr. S. Nagpal and Major Shelja. PW Dr. LD. Bhagat has also stated that a patient with 100% burns can speak till she/he gets unconscious. In this fact situation, it would be difficult to hold that the oral dying declaration made by the deceased is a fabricated piece of evidence or tutored one, that too, when the accused himself was there in the hospital. 49. No doubt that no thumb impression of the deceased has been obtained in this case by Dr. S. Nagpal but it is a case in which no separate statement of the deceased is recorded either by PW Dr. S. Nagpal or PW Major Shelja, therefore, taking of any thumb impression does not arise. Even otherwise, had the thumb impression of the deceased taken in this case, it could rather create doubt as it was a case of 100% burn injuries from head to toe. What appears to us is that the doctors in the Military Hospital attending to the medico legal cases of a serious nature like the one on hand have not been imparted required training with regard to the procedure and manner in which the a statement of a victim/injured, which may turn out to be a dying declaration should be recorded. What appears to us is that the doctors in the Military Hospital attending to the medico legal cases of a serious nature like the one on hand have not been imparted required training with regard to the procedure and manner in which the a statement of a victim/injured, which may turn out to be a dying declaration should be recorded. A uniform pattern covering all essential steps in this regard are required to be adhered to, otherwise, there can be a situation in a particular case, depending on its individual facts that the Court may discard/disbelieve a statement (dying declaration) on procedural grounds. However, that is not the situation in the case on hand when appreciated in totality of other facts and we are not inclined to doubt or disbelieve the dying declaration on the grounds agitated before us by Mr. Abrol learned counsel for the accused. 50. Apex Court Judgments on which Mr. Abrol has relied upon to strengthen his arguments are of no help to him being distinguishable on facts. 51. In Nallapati Sivaiah's case (supra), there were two dying declarations, first recorded by Inspector of the police and the second recorded by the Additional Magistrate. The dying declaration recorded by the Magistrate was rejected for the reason that before the actual recording, he did not see and obtain any information and certificate or endorsement from the duty Doctor as to the physical and mental condition of the declarant to give the statement or that the Magistrate did not see as to whether the declarant was making a voluntarily statement and whether he was in a fit condition to make statement and whether any seductive has been administered to the victim. 52. In the case on hand, the statement of the deceased is recorded by a person already present in the hospital (Major Shelja) on asking of Dr. S. Nagpal who was attending to the injured. No doubt, that no fitness certificate is prepared by Doctor S. Nagpal in this case, but he is one who was very much present along with Major Shelja who was informed of the entire incident by the deceased in Malayalam who further narrated the samen to Dr. S. Nagpal. This has also come in evidence that victim was fit to make the statement, therefore, in this eventuality as already discussed by us, absence of certificate of fitness by Dr. S. Nagpal. This has also come in evidence that victim was fit to make the statement, therefore, in this eventuality as already discussed by us, absence of certificate of fitness by Dr. Nagpal would not belie the contents of the dying declaration. 52. In Kanti Lal's case (supra), it was held that for placing implicit reliance on dying declaration, the Court must be satisfied that the deceased was in a fit state of mind to narrate the correct statement and that the dying declaration should be voluntarily and should not be prompted. It was held that physical as well as mental fitness of the maker is to be proved by the prosecution. 54. In the case on hand, mental fitness of the maker is duly proved by Dr.Nagpal and Major Shelja. 55. In Bawa Ram and anr's case (supra), the appellants were convicted for causing death of deceased by pouring kerosene oil on him and set him ablaze. The appeal was dismissed by the High Court. It was argued before Hon'ble Supreme Court that the dying declaration was not sufficient to record conviction when relatives and injured had resiled from their statements made during investigation and they deposed to the effect that the deceased was of unsound mind and had a suicidal tendencies. It is in this background and in peculiar facts of that case that the Hon'ble Supreme Court held that it would be unsafe to sustain the conviction on the basis of the said dying declaration. 56. In the case on hand, there is no such evidence available on record and that within just two hours of the occurrence when the deceased was taken to the hospital, she narrated the manner in which the accused had poured kerosene oil on her and set her ablaze. 57. In Surinder Kumar's case (supra), the dying declaration was rejected on the ground that it was shrouded by suspicious circumstances and contrary to the prosecution story. The Doctor certifying the fitness of the deceased to make statement was admittedly not present at the time and the date when the deceased made the statement and it was clarified that the Doctor was busy in some other professional work and he offered his opinion subsequently on the request of police official. The Doctor certifying the fitness of the deceased to make statement was admittedly not present at the time and the date when the deceased made the statement and it was clarified that the Doctor was busy in some other professional work and he offered his opinion subsequently on the request of police official. There was thumb impression on the statement of the deceased who has suffered 95/97% burns and it was found highly doubtful, whether it would be possible to put thumb impression below her statement. Not only that, many faults were also noticed in the investigation which was full of omissions. Doubt of false implication was also there as I.O had some previous animosity. It is in these circumstances, the conviction and sentence recorded by the High Court was set aside and the acquittal passed by the trial Court was restored. That is not the fact position in the case on hand. 58. The accused, otherwise has no explanation to put forth as to how his wife (deceased) who in the wee hours had gone to the kitchen to prepare tea got extensive burns to the extent of 100%. There was none else except the accused and the deceased in the quarter when the occurrence took place which fact is otherwise established from the evidence of PWs D.B.Joshi and Suresh Kumar. The accused, when confronted with incriminating evidence produced against him, he did not state that it was an accidental fire because of bursting of stove and for that matter any other explanation in which the deceased got burn injuries or she made an attempt to commit suicide. A feeble attempt was made by him to state that deceased was as a case of depression but did not strengthen that aspect also by any documentary evidence. The defence evidence led by the accused is of no help to him at all, if appreciated in the present set of circumstances. Contrary to it, there is a statement of PW Baiju the real brother of the deceased to the effect that the deceased was being ill treated and harassed by the accused within a span of two years of marriage and immediately before her death also. 59. The possibility of accidental death or suicidal attempt by deceased is otherwise ruled out in this case, if one looks at the articles seized by the police from the place of occurrence. 59. The possibility of accidental death or suicidal attempt by deceased is otherwise ruled out in this case, if one looks at the articles seized by the police from the place of occurrence. The stove recovered from the quarter of the accused was having its lid open. It is a typical old model stove (of wicks) make `Nutan' which is normally available in Army Canteen. No pressure can be built in it. When S.I.Bansi Lal visited the spot, he noticed certain small pieces of burnt cloth in the small base tank in which some left over kerosene oil was still there. It did not give any indication of bursting. So bursting of stove is ruled out. On the other hand, the report prepared by PW Rohit Koul of FSL confirms the presence of kerosene oil on the burnt pieces of the cloth recovered from the place of occurrence. PW Dr. L.D.Bhagat also noticed kerosene oil smell over the scalp at the time of post mortem. The accused has also not received any burn injury in this case and this also indicates that he did not make any attempt to' save his wife. All these circumstances when taken collectively rule out the suicidal attempt by the deceased and indicate more towards homicidal death. 60. We may make it clear that we have entered into this discussion for our own satisfaction, otherwise on the basis of the reasoning given hereinabove, we have no reason to doubt that the dying declaration made by the deceased in the Military Hospital immediately after the occurrence before PW Major Shelja and PW Dr. S. Nagpal, holding the accused responsible for setting her ablaze on the wee hours of 24.11.2002 in his quarter is doubtful. Rather, we are satisfied and convinced that the dying declaration made by the deceased Bindu is a true and pure statement of the incident, free from any tutoring or inducement from any quarter. Therefore, there is no legal impediment to make it basis of conviction of the accused for the charge of section 302 RPC. Accordingly, we uphold the conviction of the accused as already recorded by the learned trial Court vide impugned judgment. Sentence imposed upon him is also confirmed. 61. Resultantly, Cr. Appeal No. 83/2012 filed by the accused is hereby dismissed. Confirmation No. 29/2012 is also answered accordingly. 62. Accordingly, we uphold the conviction of the accused as already recorded by the learned trial Court vide impugned judgment. Sentence imposed upon him is also confirmed. 61. Resultantly, Cr. Appeal No. 83/2012 filed by the accused is hereby dismissed. Confirmation No. 29/2012 is also answered accordingly. 62. Outcome of the Criminal Appeal and Confirmation be intimated to the learned trial Court in terms of section 425 Cr.PC (State Code) for further action in accordance with law. 63. The copy of the judgment be also sent to Ministry of Defence, Government of India for circulation amongst the Doctors of the Army Hospitals who may have to attend to the medico legal cases of serious nature and the necessity also arises for recording the statement of injured/victim.