JUDGMENT 1. - Heera Lai, appellant herein, was put to trial for having committed murder of his wife Sampat before learned Additional Sessions Judge (Fast Track) No. 1 Jhunjhunu, who vide judgment dated September 30, 2002 1 convicted and sentenced the appellant as under- U/s 302 IPC: To undergone life imprisonment and fine of Rs. 2000/-, in default to further suffer two months simple imprisonment. U/s 498A IPC: To undergo three years rigorous imprisonment and fine of Rs. 500/- in default to further suffer fifteen days simple imprisonment. The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that while the appellant's wife Sampat 1 (since deceased) was admitted to the Government Hospital at village Mehansar after receiving burn injuries, the SHO Police Station Bisau recorded her Parcha Bayan (Ex. P-14) on May 13, 2001 at 8.15 PM wherein she stated that the appellant used to beat her in connection with demand of dowry. Earlier also be made attempt to kill her by sprinkling kerosene on her. 1 Around 5-6 PM on the said day appellant beat with legs and chappals and poured kerosene on her and ignited match stick. On that Parcha Bayan case under sections 307 and 498A IPC was registered and investigation commenced. During the course of treatment Sampat succumbed to her injuries and section 302 IPC was added. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Jhunjhunu. Charges under sections 302 and 498A IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Section 313 Cr PC, the appellant claimed innocence and stated that at the time of incident he was not present at the house and Sampat committed suicide in his absence. One witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant after having place reliance on two dying declarations of Sampat one (Ex. P-14) allegedly recorded by Hari Singh SHO (Pw. 16) and another (Ex. P-9) by Nemi Chand Punia Tehsildar (Pw. 9). 3. We have heard submissions advanced before us and weighed the material on record. 4. Coming to the prosecution evidence we find that Hari Singh 10 (Pw. P-14) allegedly recorded by Hari Singh SHO (Pw. 16) and another (Ex. P-9) by Nemi Chand Punia Tehsildar (Pw. 9). 3. We have heard submissions advanced before us and weighed the material on record. 4. Coming to the prosecution evidence we find that Hari Singh 10 (Pw. 16) in his cross examination deposed that when he reached Mahensar Hospital he found that Sampat was admitted by Compounder since doctor had gone out of village. He further stated that he recorded Parcha Bayan of Sampat in the presence of Ram Singh Constable and Compounder but he did not ask them to put their signatures over Parcha Bayan. He even did not ensure as to whether Sampat was in a fit state of mind to give the statement. Nemi Chand Punia (Pw.9) his deposition stated that on May 13, 2001 while he was posted as Tehsildar Churu, he was asked to record the statement of Sampat who was admitted in the Emergency Ward of Hospital having burn injuries. He further deposed that Sampat was speaking in local dialect (Marwari Language) but he got the statement recorded in Hindi Language. ( ;g lgh gS fd lEir ekjokMh Hkk"kk cksy jgh FkhA ;g lgh gS fd izn'kZ ih&9 c;ku fgUnh esa fy[kok;k FkkA ) Nemi Chand further stated: MkDVj lkgc ekStwn Fkh ulZ dksbZ ekStwn ugha FkhA MkDVj dk uke lqUnfj;k Fkk------- lEir dh igpku eSaus HkrhZ dkMZ dks ns[kdj vkSj MkDVj ls iwNdj dh FkhA He also stated that: lEir yxHkx lkjh tyh gqbZ Fkh vkSj muds gkFk iSj tys gq, FksA lEir ds nksuksa gkFkksa dh gFksfy;kWa Hkh tyh gqbZ FkhaA 5. A look at the alleged dying declaration (Ex.P-9) goes to show that Nemi Chand Punia put his signatures in black ink. The declaration was not in the hand writing of Nemi Chand and it bears clear signatures allegedly put by Sampat. We also notice that Dr. Ramesh Chandra Sundaria (Pw. 10) was a male Doctor and not Female as deposed by Nemi Chand Punia. Dr. Ramesh Chandra Sundaria did not depose that Nemi Chand Punia was ever met him. Dr. C.L. Chauhan (Dw. 1) in his deposition stated that he initially treated Sampat at her house and administered injection to her. We also notice that Dr. Ramesh Chandra Sundaria (Pw. 10) was a male Doctor and not Female as deposed by Nemi Chand Punia. Dr. Ramesh Chandra Sundaria did not depose that Nemi Chand Punia was ever met him. Dr. C.L. Chauhan (Dw. 1) in his deposition stated that he initially treated Sampat at her house and administered injection to her. At that time she was unable to speak and her fingers could not bend: " yM+dh dk iwjk 'kjhj tyk gqvk FkkA ,slk dksbZ vax ugha Fkk tks tyk gqvk ugha gksA yM+dh djkg jgh FkhA mlds gkFkksa dh vaxqfy;ka ,DlVsUMsM Fkha tks eksM+ ugha ldrh FkhA eqag cUn Fkk cksy ugha ldrh FkhA yM+dh ds eSaus nnZ fuokjd bUtsD'ku yxk;k FkkA " 6. Having carefully considered the testimony of Hari Singh SHO (Pw. 16) Nemi Chand Punia Tehsildar (Pw.9) Dr. Ramesh Chandra Sundaria (Pw. 10) and Dr. C.L. Chauhan (Dw. 1) and on analysing the alleged dying declarations Ex. P- 14 and Ex.P-9 of the deceased we are of the view that these documents appeared to have been concocted. Nemi Chand Punia Tehsildar did not go to the Hospital. Had he gone, he would not say that Dr. Sundaria was a lady doctor. We also notice that alleged Parcha Bayan (Ex.P-14) and the statement recorded by Tehsildar Ex. P-9, bear the signatures of Sampat whereas according to Dr. C.L. Chauhan, Sampat was neither in a position to speak nor could she bend her fingers. The alleged dying declarations do not inspire confidence and could not have been acted upon. It is well settled that for a dying declaration to provide the basis for conviction, the same has to be beyond any reproach. In State of Punjab v. Gian Kaur (1998 Cr.L.J.2061 (SC) the dying declaration of a woman who sustained hundred percent burn injuries was not accepted because of inherent contradictions one of which was that according to the statement her thumbs were completely burnt yet her thumb impression appeared on the statement. 7. From the material on.. record it appear that Sampat committed suicide because appellant used to beat her and treat her cruelly. Clause (a) of the Explanation under section 498-A IPC defines cruelty to mean a "wilful conduct of the husband of such nature as is likely to drive the woman to commit suicide". 7. From the material on.. record it appear that Sampat committed suicide because appellant used to beat her and treat her cruelly. Clause (a) of the Explanation under section 498-A IPC defines cruelty to mean a "wilful conduct of the husband of such nature as is likely to drive the woman to commit suicide". In the instant case it is established from the ocular and documentary evidence beyond a reasonable doubt that as a result of cruel treatment of appellant Sampat was driven to meet the suicidal death. Thus offence of abetment of committing suicide punishable under section 306 IPC is clearly made out against appellant and for that purpose presumption under section 113-A of the Evidence Act can be raised against him. Section 306 IPC and Section 113-A Evidence Act read thus- "306: Abetment of suicide. - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. "113-A: Presumption as to abetment of suicide by a married woman. - When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation-For the purposes of this section cruelty shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)." 8. The appellant is found guilty of cruel treatment of his wife, as a result of which she committed suicide within eleven years of their i marriage. On such evidence the presumption which arises under section 113-A of the Evidence Act is that the appellant abetted the suicide. The word 'cruelty' as mentioned in the Explanation below Section 113-A of the Evidence Act has been given the same meaning contained in the Explanation below Section 498A IPC. On such evidence the presumption which arises under section 113-A of the Evidence Act is that the appellant abetted the suicide. The word 'cruelty' as mentioned in the Explanation below Section 113-A of the Evidence Act has been given the same meaning contained in the Explanation below Section 498A IPC. On the facts established, the wilful conduct of appellant in neglecting and harassing his wife Sampat was so cruel that she was driven to commit suicide and the offence of abetment of committing suicide, punishable under section 306 IPC is proved against the appellant. 9. Although charge under section 306 IPC was not framed against the appellant but omission to frame charge under section 306 IPC has not resulted in any failure of justice In Hira Lal v. State (Govt. of NCT) Delhi (2003) 8 SCC 80 , their Lordships of Supreme Court in a similar situation observed as under "Though no charge was framed under section 306 IPC, that is inconsequential. On the facts of the case, even though it is difficult to sustain the conviction under section 304-B IPC, there is sufficient material to convict the accused-appellants in terms of Section 306 IPC along with Section 498A IPC." 10. For these reasons, we partly allow the appeal and instead of section 302 we convict him under section 306 IPC. Looking to the fact that the appellant has already undergone confinement for a period more than six years the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however maintain his conviction and sentence under section 498A IPC. The appellant has already served out the sentence awarded to him under section 498A IPC. The appellant Heera Lal, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.The impugned judgment of learned trial court stands modified as indicated above.Appeal Partly Allowed - Conviction Altered And Judgment Modified. *******