JUDGMENT : S. Vimala, J. The Sessions Judge, Mahalir Neethimandam, Thoothukudi found the appellant, aged 43, father of three children, guilty under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.3,000/- in default to undergo Rigorous Imprisonment for six months. This judgment is under challenge in this appeal. The facts in brief: (i) The deceased Parameshwari is the wife of the accused; the accused and the deceased were residing in North Semapudur Village along with three children; the accused was an alcoholic and he used to treat the wife cruelly; the act of the accused was questioned by brothers of Parameshwari; (ii) On 08.03.2014 at about 10:30 pm, when the deceased was serving food to the accused, she asked him for the salary of the husband and aggrieved over that, the accused allegedly poured kerosene over her body and set her ablaze; the rescue call by Ajith, the son of the deceased went in vain; it is alleged that the deceased in order to save her life pulled the hands of the accused, but the accused pushed her out and ran outside; she was admitted in Kovilpatti District Quarters Hospital by PW7/Doctor Yamuna. PW7 sent intimation to the Police, which is marked as Ex.P2; Parameshwari told the Doctor that she was set on fire by her husband; at that time she was allegedly semiconscious; she was with 90% burn injuries and the Accident Register copy is Ex.P3; in the presence of PW8/Doctor Gorlin Reshma on 09.03.2014 at about 9:30am, the Tahsildar Kovilpatti recorded the dying declaration of Parameshwari, the deceased; the Doctor issued a certificate that she is conscious and is in a fit state of mind to give the dying declaration; later Parameshwari died on 09.03.2014 at 01:30hrs and the death intimation was given to Police under Ex.P4. (iii) PW9/Dr.Uma conducted autopsy on 10.03.2014 and gave the opinion that the death could have occurred 18 to 24 hours prior to autopsy and the death was due to complication of burn injuries and the postmortem certificate is Ex.P6; (iv) PW14/Rathamani, the then Sub Inspector of Police, after receiving the intimation from the Hospital regarding the admission of Parameshwari with burn injuries went to the District Head Quarters Hospital, Kovilpatti and recorded the statement of Parameshwari; the statement was read over to deponent and left her hand thumb impression was also obtained. The witnesses Kaleeswari and Karpagam were along with the injured; she returned to the Police Station and registered a case in Crime No.37 of 2014 under Sections 294(b), 323 and 307 IPC. (v) The Special Tahsildar/PW15, Muthuramalingam, at the request of the hospital authorities recorded the dying declaration of the deceased at about 9:15 to 09:45 am under Ex.P14. (vi) PW16/Ajeeth Kumar completed the investigation and filed the final report under Section 302 IPC. (vii) The Special Judge relied upon the evidence of PW1/sister-in-law of the deceased, PW2/son of the accused, the dying declaration of the deceased and found the accused guilty of committing murder of his wife. 2. The contention of the accused is that the deceased died of suicide, whereas the contention of the prosecution is that the deceased died of homicide of which the accused is responsible. It is not in dispute that the deceased died out of complications of burn injuries. Who caused those burn injuries, whether it is caused by the deceased herself or it was caused by the accused with the intention of killing his wife is the issue to be considered. 3. The learned counsel for the accused would submit that the evidence of the sister-in-law of the deceased is not reliable and the dying declaration is highly suspicious and it is not safe to rely upon the dying declaration. It is pointed out specifically that there is no thumb impression in the dying declaration recorded by the Executive magistrate, but thumb impression has been obtained in the complaint. It is contended that without even knowing that the earliest complaint would amount to dying declaration, on the death of the complainant, the prosecution has fabricated the subsequent dying declaration after the death of the deceased and that is why, it does not bear the thumb impression of the deceased. The complaint did not have the certificate of the Doctor that the deceased was in a fit state of mind to give the statement. Reliance is placed upon the belated sending of the dying declaration to the Court, probabalizing the contention that the dying declaration ought to have been brought into existence after the death of the deceased. The complaint did not have the certificate of the Doctor that the deceased was in a fit state of mind to give the statement. Reliance is placed upon the belated sending of the dying declaration to the Court, probabalizing the contention that the dying declaration ought to have been brought into existence after the death of the deceased. There is no explanation on the side of the prosecution as to why the subsequent dying declaration did not contain the thumb impression of the deceased, while the earlier complaint bear the thumb impression of the deceased. Apart from that, the way of writing of the complaint running to two complete pages without even leaving space for margin is indicative of the fact that the thumb impression should have been obtained in a blank paper and the content should have been filled upon at a later point of time is the contention raised on behalf of the defence. This contention appears to be probable in the light of the comparison of the complaint at the earliest point of time and the dying declaration recorded by the Magistrate at a later point of time. 4. The son of the deceased aged about 10 has supported the case of the defence, where he would state that the deceased poured kerosene over herself and thus the mother attempted to kill herself. He would state that preceding this incident, there was a quarrel in respect of jewels which was given by the deceased to her brother, which was questioned by the father. The sum and substance of the evidence of the son is that the reason for the suicide was on account of the quarrel between the deceased and the accused just prior to that. 5. It is pointed out that the version of the deceased before the Doctor at the earliest point of time was that she was put to flames by the husband, but the learned counsel for the accused would submit that this statement cannot be believed as it is not the statement of the deceased, but it is the statement of the relatives, who were eating fruits of labour brought by the accused. Under the circumstances, the question is, whether the version of the son has to be believed or the version of the deceased has to be believed. 6. Under the circumstances, the question is, whether the version of the son has to be believed or the version of the deceased has to be believed. 6. The fact remains that the accused was also admitted in the hospital for treatment of burn injuries and he had been in hospital for a period of 45 days. Out of three injuries sustained by him, two injuries have been categorized as grievous injuries. When the accused was in the treatment for a period of 45 days, what is inference to be drawn? It is relevant to point out that the son has spoken about the effort taken by the father to save the mother. Neither the complaint running to two pages nor the dying declaration speaks about the manner in which and the cause for which the accused also sustained injuries. 7. The fact remains that the relationship between the deceased and her husband had been fraught with strains, though for different reasons. Even presuming the evidence of the son to be true, the question remains whether a woman with three children would dare to commit suicide, but for the cruelty committed by her husband. 8. The learned counsel for the appellant relied upon the following decisions to contend that the dying declaration can be the sole basis for conviction provided it inspires confidence and that in this case, the dying declaration is unreliable and it is lacking in integrity and therefore, it has to be rejected: 8.1. (2002) 7 SCC 57 [Ramilaben Hasmukhbhai Khristi vs. State Of Gujarat]; “28. Under the law, dying declaration, can form sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But Court cannot be too technical and in substance if feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon, without any corroboration. 8.2. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But Court cannot be too technical and in substance if feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon, without any corroboration. 8.2. 1985 (4) SCC476 [State (Delhi Administration) vs. Laxman Kumar]; “We have already pointed out that the document does not bear the signature of Sudha. Admittedly, burning was to the extent of 70% and there is medical evidence as to which parts of the body had been affected. There is not any positive evidence that the palms had been affected so badly that Sudha was not in a position to use any of her fingers. Nor is there clear evidence that the left hand thumb had been so affected that a full impression was not available to be taken. Mr. Singh has argued with emphasis that Sudha must have used both her hands to extricate herself from her wearing apparel when the same was burning and thus both the palms and the fingers including the tips must have been burnt. We do not think in the absence of evidence, such a submission should be accepted to explain away either a signature or thumb impression in the dying declaration.” 9. Considering the dying declaration in the light of the decisions and comparing the complaint with the dying declaration recorded by the Executive Magistrate, we are constrained to hold that the dying declaration is unreliable and unbelievable. It cannot be said that the prosecution was not aware of the importance of sending dying declaration to the Court immediately after recording. In this case, dying declaration has been sent to Court after filing of the final report. Under the circumstances, dying declaration cannot be believed. 10. The intention to cause death does not tally with the conduct of the husband in trying to rescue her at the cost of his hospitalization for a period exceeding 40 days. Under the circumstances, the evidence already available proves the offences of cruelty and not the murder. 11. In the result, the Criminal Appeal is partly allowed and the conviction and sentence imposed under Section 302 IPC is set aside and the accused is found guilty under Section 498-A IPC. Under the circumstances, the evidence already available proves the offences of cruelty and not the murder. 11. In the result, the Criminal Appeal is partly allowed and the conviction and sentence imposed under Section 302 IPC is set aside and the accused is found guilty under Section 498-A IPC. The accused had been under custody for a period of 2½ years and the sentence already undergone by the accused shall be treated as sentence under Section 498-A IPC. The accused is ordered to be acquitted of the charge under Section 302 IPC and he is ordered to be set at liberty, if his presence is not needed in any other case. 12. We place on record the appreciation to the learned Sessions Judge, who was sensitive enough to refer those children to Child Welfare Committee. 13. At this juncture, we are mindful of the children below 18 (of the prisoners, who have been convicted for life imprisonment), who are vulnerable to all kinds of evils. In a Domestic Violence, when one spouse is done to death by the other spouse, the mental agony and the psychological imbalance for the child is incalculable. They require moral, physical, financial, emotional and psychological support from the society and the provisions of Juvenile Justice Act recognize those requirement. Those children would come under the category of children in need of care and protection and they would remain protected by Child Welfare Committee. 14. Under the circumstances, we deem it appropriate to constitute a Committee in each of the place, where there is a Central Prison as well as a Special Prison for Women, to identify the vulnerable children of prisoners to find out the rehabilitation measures to be taken in respect of those children. It was represented that there are eight Central Prisons (where the life convicts are lodged) and Four Special Prisons for Women. The details of the Committee constituted against each Central Prison are as follows: Sl.No. Name of the Central Prison Particulars of Members 1. Central Prison, Puzhal (1) Mrs.Nirmala, IAS, Chair Person of State Commission of Protection of Child Rights; (2) Mrs.Lakshmi Ramesh, Sub-Judge, Arokkonam; (3) Principal Judge, City Civil Court, Chennai (4) Chairperson, Child Welfare Committee (CWC) 1a. Special Prison for Women, Puzhal 2. Central Prison, Puzhal (1) Mrs.Nirmala, IAS, Chair Person of State Commission of Protection of Child Rights; (2) Mrs.Lakshmi Ramesh, Sub-Judge, Arokkonam; (3) Principal Judge, City Civil Court, Chennai (4) Chairperson, Child Welfare Committee (CWC) 1a. Special Prison for Women, Puzhal 2. Central Prison, Vellore (1) Chairperson, Child Welfare Committee (CWC); (2) District Child Protection Officer (DCPO); (3) Probation Officer; (4) A Social Worker to be allotted from the District Child Protection Unit by DCPO 2a. Special Prison for Women, Vellore 3. Central Prison, Cuddalore (1) Chairperson, Child Welfare Committee (CWC); (2) District Child Protection Officer (DCPO); (3) Probation Officer; (4) A Social Worker to be allotted from the District Child Protection Unit by DCPO 4. Central Prison, Salem (1) Chairperson, Child Welfare Committee (CWC); (2) District Child Protection Officer (DCPO); (3) Probation Officer; (4) A Social Worker to be allotted from the District Child Protection Unit by DCPO 5. Central Prison, Trichy (1)The Principal Magistrate (JJB), Trichy;2) Chairperson, Child Welfare Committee (CWC); (2) District Child Protection Officer (DCPO); (3) Probation Officer; (4) Mr.Martin, Advocate (Mob:9842410055) (5) Mr.T.Giftson, Assistant Professor, Bishop Hober College, Trichy (Mob:9994012397) 5a. Special Prison for Women, Trichy 6. Central Prison, Madurai (1) J.M.No.3, Madurai-cum-Principal Magistrate (JJB); (2) Chairperson, Child Welfare Committee (CWC); (3) District Child Protection Officer (DCPO); (4) Probation Officer; (5) Mr.K.R.Raja, Law Student, Madurai Govt. Law College; (Mob:9962981392) (6) The President, Madurai Women Advocates' Association (Mob:9444069933); 6a. Special Prison for Women, Madurai 7. Central Prison, Palayamkottai (1) Chairperson, Child Welfare Committee (CWC); (2) District Child Protection Officer (DCPO); (3) Probation Officer; (4) A Social Worker to be allotted from the District Child Protection Unit by DCPO; (5) Mr.Britto, Advocate (Mob:9442618117) (6) Mr.Senthur Pandian, Law Student, Madurai Govt. Law College (Mob:8903422490) 8. Central Prison, Coimbatore (1) Chairperson, Child Welfare Committee (CWC); (2) District Child Protection Officer (DCPO); (3) Probation Officer; (4) A Social Worker to be allotted from the District Child Protection Unit by DCPO 8a. Special Prison for Women, Coimbatore 15. The committee shall collect the nominal role of the life convicts from the Jail Authorities and collect other details in the prescribed Proforma (annexed hereunder) after examining the prisoners/life convicts in person. The concerned Superintendent of Central Prisons shall extend their utmost co-operation to the Committee Members for speedy and effective survey. The Committee is required to submit its report on 26.03.2018. 16. The concerned Superintendent of Central Prisons shall extend their utmost co-operation to the Committee Members for speedy and effective survey. The Committee is required to submit its report on 26.03.2018. 16. The Principal Secretary, Home (Prison Department) is directed to bear the entire expenses, including the incidental expenses of the Committee. 17. When this Court posed a question with regard to payment of compensation to the children, it is reported that there is only one property, standing in the name of the deceased wife and pursuant to her death, the said property will automatically devolve upon on three children and her husband, as they are legal heirs of the deceased wife. The claim of the husband is that it is his property, which was purchased in the name of his wife. However, in order to avoid future claims, the husband shall transfer his 1/4th share in favour of three children by way of compensation forthwith.