JUDGMENT 1. - This appeal is directed against the judgment and order dated 5.5.2003 passed by the Additional Sessions Judge (Fast Track) No. 1, Banswara, whereby he convicted and sentenced accused appellant Vikram Singh as under: Under Section 498-A, I.P.C. 3 years R.I. and fine of Rs. 2,000/- in default one month R.I. Under Section 307, I.P.C. 10 years R.I. and fine of Rs. 3,000/- in default one month R.I. Both the sentences were ordered to run concurrently. 2. The prosecution story is woven like this :On 27.1.2002 Krishan Kant Singh has lodged an oral report at Police Station Khemara that Krishan Kanwar, wife of his elder brother Vikram Singh who had married before 8-9 years and having 2-3 children. There were daily quarrel between them. On 31.1.2002 Vikramsingh came in night in drunkard condition quarrel with Krishan Kanwar. After hot exchange, Vikram Singh poured kerosene and lit the match, therefore, she burnt by fire. My another brother's wife Chandkanwar sprinkle water and save from fire. Thereafter look her to hospital at Banswara where she was admitted but still she is not cured and statement of Magistrate was recorded there. Thereafter took her for treatment to Ahmedabad where she died, this information is received from Savania by Madansingh and dead body was carried from Ahmedabad to Bankoda.On tire basis of oral report of Krishan Kant Singh, F.I.R. No. 26/2002 dated 27.1.2002 P.S. Khamcra District Banswara was registered against Vikram Singh for offences under Sections 498-A and 302 I.P.C. and investigation was started. During investigation, site inspection memo, statement of Krishankanwar and requisition for recording statement before Magistrate, certificate regarding fitness for giving statement, papers of Ahmedabad Hospital requisition of Sahib,to Police Station for Ahmedabad Hospital and Panchayatnama of dead with other usual memos were prepared and challan against accused appellant was filed under Sections 498-A and 302 I.P.C.After hearing on charge for offences under Sections 498-A and 302 I.P.C. and charges were read over and accused appellants pleaded not guilty and claimed for trial.Thereafter, case was committed to the Court of Sessions for trial who transferred the same to the Court of Additional Sessions Judge (Fast Track) No. 1, Banswara for trial for the offence under Sections 498-A and 302 I.P.C.During the trial prosecution has produced 23 witnesses and exhibited Fx.P-1 to Ex.P-28 documents and in defence E.x.D-1 was produced. Thereafter statement under Section 313 Cr.P.C. was recorded in which he denied all the allegations and said that he has been falsely implicated by the father in law and Ids family. No defence witness was produced in support of their case. Thereafter learned Additional Sessions Judge Fast Track No. 1 Banswara convicted and sentenced, as mentioned hereinabove. Hence, this appeal. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor and perused the record of the case. 4. Learned counsel for the appellant assailed the judgment and sentence of the trial Court and states that finding cannot be upheld because out of 23 witnesses, PW-1 Krishan Kant Singh, PW-2 Smt. Chandra Kanwar, PW-3 Vijay Singh, PW-4 Smt. Kcsar Kanwar, PW-9 Hoorji and PW-10 Bhagwat Singh have been declared hostile I and PW-6 Bharat Singh, PW-7 Moti Singh, PW-8 Smt. Shakunlla, PW-11 Dhulchand, PW-12 Lal Singh, PW-13 Madan Singh, PW-17 Jeewa and PW-20 Bhanwar Kanwar are not eye-witnesses and cause of death is by burns and as per evidence of prosecution this is a suicidal death and abatement thereof and not homicidal death so finding cannot be upheld. Learned counsel further urged that though there are two dying declarations i.e. Ex.P-26 and E.P-19 and the learned trial Court could not relied on dying declaration Ex.P-19 taken by the Magistrate PW-21 and relied on the dying declaration taken by up PW-23 Mitracharan. Looking to 60% burns, the deceased was not in a fit mental condition to give statement and even looking to the contradictions, dying declaration cannot be acted upon. Learned counsel further urged that looking to the charge under Section 302, I.P.C. conviction under Section 307, I.P.C. cannot be upheld and at the most if evidence of prosecution is relied on, conviction can be at the most may be made under Section 306 I.P.C. as per judgment reported in (2004) 5 SCC 334 Dalbir Singh v. State of U.P. Accordingly, conviction should be modified. 5. Learned Public Prosecutor supported the conviction and sentence passed by the trial Court and argued that under Section 222/464 Cr.P.C. where there is a major charge and accused appellant may be convicted for the minor charge, as were done in the instant case, so appeal deserves to be dismissed. 6. 5. Learned Public Prosecutor supported the conviction and sentence passed by the trial Court and argued that under Section 222/464 Cr.P.C. where there is a major charge and accused appellant may be convicted for the minor charge, as were done in the instant case, so appeal deserves to be dismissed. 6. As regards dying declaration it is said that "Nemo moriturus proesumitur mentri" a man will not meet his maker with a lie in his mouth that's why tendering of dying declaration is admissible and made relevant under Section 32 of the Indian Evidence Act. 7. Dying declaration is relevant under Section 32 of the Indian Evidence Act when it relates to the cause of death. Dying declaration may be sole basis of conviction provided dying declaration is found to be true and voluntary. Hon'ble Apex Court in Paniben v. State of Gujarat, AIR 1992 SC 1817 laid down some of principles governing dying declaration which are as follows : (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (iv) Where dying declaration is suspicious.it should not be acted upon without corroborative evidence. (v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain the details as to the-occurrence, it is not to be rejected. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of statement itself guarantees truth. (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration has to look to the medical opinion. But where tire eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration has to look to the medical opinion. But where tire eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. 8. As to the objection that without framing charge under Section 307 I.P.C., Court cannot convict the appellant under that section, is not tenable because of the provisions of Sections 222 and 464 Cr.P.C. such conviction is possible provided Court finds that failure of justice has not occurred and for this it depends upon the facts of the case and as per rulling cited herein above Dalbir Singh v. State of U.P. (supra). The conviction under Section 306 I.P.C. can be safely recorded provided the same would not result in failure of justice in any manner. 9. For the offence of abatement of suicide under Section 306 I.P.C. it is necessary that as per provisions of the Section 107, I.P.C. is attracted, which defines abatement which as under : (a) instigation to commit the offence; (b) engaging in conspiracy to commit the offence, and (c) aiding the commission of an offence. 10. Perusal of prosecution evidence it is clear that as per statement of PW-16 Dr. Rila Joshi, deceased Krishan Kanwar was treated as per Indoor Bed Head Ticket No. 1574 and after death, postmortem was done by PW-19 Dr. (Smt.) Dharitri and as per postmortem report Ex.P-11 the cause of death was septicemia due to bums over body. So now question remains as to whether death of Smt. Krishan Kanwar is suicidal or homicidal and for this, dying declaration is very important piece of evidence. Admittedly, learned trial Court discussed two dying declarations. Ex.P-19 is recorded by Magistrate Shri Pradeep Jain PW-21 and Ex.P-26 is recorded by PW-23 Mitracharan and the later one dying declaration Ex.P-26 was recorded first in time by the said witness. Admittedly, learned trial Court discussed two dying declarations. Ex.P-19 is recorded by Magistrate Shri Pradeep Jain PW-21 and Ex.P-26 is recorded by PW-23 Mitracharan and the later one dying declaration Ex.P-26 was recorded first in time by the said witness. The trial Court also considered the fact that both dying declarations were recorded on 23.1.2002 and by Mitracharan it was taken at 11.55 A.M. whereas by Magistrate it was recorded at 1.10 P.M. Thus, it is crystal clear that dying declaration Ex.P-26 was recorded first and Ex.P-19 was recorded later on and because of time factor, the dying declaration which have been recorded in first in time have been given priority because there was least chances of influence the person who made dying declaration and because of an important contradiction regarding lit the match, and Krishan Kanwar said that she herself lit the match. Hence, dying declaration Ex.P-19 recorded by PW-21 Shri Pradeep Jain has not been treated reliable whereas dying declaration Ex.P-26 which was taken prior in time has been treated as reliable one. 11. As to the dying declaration Ex.P-26 taken by PW-23 Mitra Charan, who has specifically said in His cross-examination : " izn'kZ ih 22 c;ku esa xt:gk d`".k daoj us eq>s ;s crk;k Fkk fd fodze flag ls ijs'kku gksdj esa Lo;a ty xbZ ;g ckr lgh gS fd d`".kk daoj us eq>s ;g crk;k Fkk fd fodze flag ds gkFk esa ls ekfpl ysdj mlls og Lo;a ty xbZ FkhA " 12. From the above discussions dying declaration Ex.P-26 recorded by (PW-23) Mitracharan is reliable one because it is found to be true and voluntary and was made in a fit mental condition and as per this dying declaration the kerosene was poured by appellant and deceased Krishan Kumari irritated and lit a match and got herself burnt. This is suicide on abatement by the appellant because of will full conduct of appellant in harassing the deceased. Thus it is a suicidal death because of abatement and is not a homicidal death. This is suicide on abatement by the appellant because of will full conduct of appellant in harassing the deceased. Thus it is a suicidal death because of abatement and is not a homicidal death. As per the Dalveer Singh's case (supra) conviction under Section 306 of the Indian Penal Code, can be held but looking to the facts and legal position the appellant cannot be convicted and sentenced under Section 307 of Indian Penal Code and it deserves to be set aside and instead of the appellant's conviction is held under Section 306 of the Indian Penal Code. Again 1 am also of the view that charge under Section 498-A of Indian Penal Code is proved against the accused appellant beyond reasonable doubt and conviction and sentence for the offence under Section 498-A, I.P.C. is maintained. 13. Thus, this appeal deserves to be partly accepted. However, the appellant is in custody since 28.1.2002 and thus he remained in custody for more than five years and two months and he has to look after his three minor daughters so in my opinion the period already undergone by the appellant would meet the ends of justice. 14. For these reasons, I disposed of the instant appeal in the following terms : (i) I partly allow the appeal of the appellant Vikram Singh -and his conviction and sentence under Section 307, Indian Penal Code is set aside and instead he is convicted under Section 306, Indian Penal Code and to suffer to the period already under gone. (ii) I, however, confirm his conviction and sentence under Section 498-A, Indian Penal Code. (iii) The impugned judgment of the trial Court stands modified as indicated above and appellant is set at liberty forthwith, if not required in any other case. Appeal disposed of. *******