Judgment : 1. The appellant was convicted for the offences under Section 302 IPC and sentenced to undergo life imprisonment and also convicted for the offence under Section 498(A) IPC and sentenced to undergo three years R.I by the learned Additional District Sessions Court (Fast Track Court) Periyakulam, Theni District in S.C. No. 46 of 2008. 2. The case of the prosecution, in brief, is as follows: (i) The appellant and the deceased Bagyalakshmi got married in the year 1998. They were issueless. Initially they were living at Uthamapalayam at Theni District and later shifted to Viswasapuram of Bodinayakanur Taluk. The parents of the appellant were also living with them. From the day of marriage, the appellant and his parents were subjecting Bagyalakshmi to cruelty. Since there was no child born, it was found that there was some defect on the part of the appellant and he was taking treatment. More than Rs. 25,000/- was spent. (ii) A loanof Rs. 9,000/-was obtained from LIC and that was also spent. The appellant was insisting the deceased to bring more money from her parents‘ house. He started beating her and used to. say that his life will be peaceful only if she dies. (iii) On 13.10.2007 around 11.50 a.m, the deceased was in the house. Her father-in-law and mother-in-law had gone out. The appellant who came inside, locked the door inside and poured kerosene on the deceased and set her ablaze by shouting that “if she dies only his life will be peaceful‘. The deceased tried to embrace the husband and in that process, caught hold of his legs. However, he pushed her aside and ran out. He bolted the door outside. He sustained severe burn injuries on both the legs and he was taken by Aiyyanar (A.5) to the Government Hospital. He informed the Medical Officer around 12.30 p.m that he sustained injuries when his wife poured kerosene and set fire on herself and embraced him while burning. Around 2.00 p.m., the deceased was taken to hospital by one Rajendran (P.W.5). She informed the doctor that her husband poured kerosene over her and set her ablaze at 11.50 a.m at her house. The appellant and the deceased were admitted as inpatients. Around 3.00 p.m., the Inspector of Police, Bodi Taluk Police received intimation from the hospital and went to the hospital and recorded the statement of the deceased. She informed the doctor that her husband poured kerosene over her and set her ablaze at 11.50 a.m at her house. The appellant and the deceased were admitted as inpatients. Around 3.00 p.m., the Inspector of Police, Bodi Taluk Police received intimation from the hospital and went to the hospital and recorded the statement of the deceased. He registered a case in Cr. No. 363 of 2007 under Section 307 IPC. He gave a request to record the dying declaration of the deceased to the Magistrate, Bodinayakanur. (iv) P.W.11 was the Judicial Magistrate at Bodinayanakur, who received the intimation and went to the Government Hospital, Bodinayakanur and recorded the statement of the deceased. Both in her statement to the Inspector of Police and in the dying declaration, she would state that her husband poured kerosene and set her ablaze. (v) P.W.12, the Inspector of Police, who registered a case went to the scene of occurrence at 4.30 p.m, prepared the observation mahazar and drew rough sketch. He also seized a kerosene can under mahazar. He examined the witnesses and recorded their statements. (vi) P.W.1, the father of the deceased came to Bodinayakanur around 5.30 p.m., and he was told that his daughter was admitted in the hospital with burn injuries. He informed P.W.2, mother of the deceased and P.W.3, sister of the deceased who also came to Bodinayakanur and all of them went to the Government Hospital, Bodi and met the deceased. The deceased told them that the appellant subjected her to cruelty and demanded money and was always telling her to die and on 13.10.2007 poured kerosene and set her ablaze. (vii) They were examined by the Inspector. Around 8.10 p.m, the injured died. Therefore, P.W.12 altered the case into one under Section 302 IPC and forwarded the express FIR to the Court. On 14.10.2007 around 6.00 a.m., the Investigating Officer went to the Government Hospital and conducted the inquest on the body of the deceased in the presence of the witnesses. He sent a request for post-mortem. (viii) On 16.10.2007 P.W.12 arrested the appellant in the hospital. (ix) P.W.10, the doctor who conducted autopsy found extensive burn injuries on the body of the deceased. He had opined that the deceased would have appeared to have died of burn injuries and its complications. He sent a request for post-mortem. (viii) On 16.10.2007 P.W.12 arrested the appellant in the hospital. (ix) P.W.10, the doctor who conducted autopsy found extensive burn injuries on the body of the deceased. He had opined that the deceased would have appeared to have died of burn injuries and its complications. (x) The Investigating officer examined the doctor, who initially treated the appellant and the deceased and also the doctor who conducted the post mortem and obtained certificates. On 28.12.2007, he examined some of the witnesses and recorded their statements. (xi) On 30.12.2007, he filed a final report against the appellant and his parents and two others for offences under Secs.498-A and 302 IPC before the learned Judicial Magistrate, Bodinayakanur. 3. The case was taken on file by learned Judicial Magistrate Bodinayakanur and later committed to the learned Additional District and Sessions Court (Fast Track Court), Periyakulam. The learned Additional District and Sessions Judge took the case on file in S.C. No. 46 of 2008. To substantiate its case, the prosecution examined 12 witnesses, marked 15 documents and produced 3 material objects. Neither oral nor documentary evidence was adduced by the defence. 4. After the evidence of prosecution is over, the accused were examined under Section 313 Cr.P.C to explain the incriminating circumstances appearing in the evidence against them and the accused denied their complicity in the offence. 5. The learned Additional District and Sessions Judge, after examining the evidence in the light of the arguments advanced, ultimately, found the appellant guilty for the offence under Sections 498-A and 302 IPC and acquitted the other accused. Aggrieved by the conviction and sentence, the appellant has preferred the present appeal. 6. Mr. E. Somasundaram, learned counsel for the appellant would submit that the conviction and sentence are erroneous and a clear case of suicide has been converted into murder case and the appellant is innocent. The learned counsel pointed out that the appellant and the deceased were living happily for more than 9 years prior to the occurrence and she had not begotten any children and only on that frustration, she poured kerosene on herself and set fire. 7. According to the learned counsel, it is a suicide and not murder. The learned counsel pointed out that the appellant and the deceased were living happily for more than 9 years prior to the occurrence and she had not begotten any children and only on that frustration, she poured kerosene on herself and set fire. 7. According to the learned counsel, it is a suicide and not murder. The learned counsel would further point out that the dying declaration cannot be relied on as there was no intimation by the doctors either to the police or to the Judicial Magistrate to record a dying declaration. The learned counsel pointed out that without any intimation, how could the learned Magistrate reach the hospital to record the statement. The learned counsel also pointed out that there are ample opportunity for the parents of the deceased to tutor the deceased to give a false statement. 8. The learned counsel further submits that the appellant was trying to save his wife and in that course he sustained burn injuries. The learned counsel also relied on a decision in BrundabanMoharana and Another v. The State of Orissa (2011) 2 MLJ (Crl) 97 (SC) : LNIND 2010 SC 930 . 9. On the contrary, Mr. K.S. Durai Pandian, the learned Additional Public Prosecutor would submit that the case of the prosecution rests on the dying declaration given by the deceased. He also pointed out that the deceased was consistent in her statement. She had stated to the doctor at the time of admission that the appellant had poured kerosene and set her ablaze. Later, she maintained the same before the Investigating Officer who recorded the statement, on the basis of which, the case has been registered. She was also consistent when she was examined by the learned Judicial Magistrate and therefore, when there are three consistent dying declarations the trial Court was right in convicting the appellant for the offence under Section 302 IPC. 10. We have carefully considered the rival contentions on either side and perused the materials available on record. 11. It is admitted that the appellant and the deceased were married 9 years prior to the occurrence and they were initially living at Uthamapalayam and later at Viswasapuram near Bodinayakanur. It is admitted that they were issueless and the appellant was taking treatment. 11. It is admitted that the appellant and the deceased were married 9 years prior to the occurrence and they were initially living at Uthamapalayam and later at Viswasapuram near Bodinayakanur. It is admitted that they were issueless and the appellant was taking treatment. P.W.1 to 3 who are the parents and sister of the deceased would state that the appellant was demanding more money and he was subjecting the deceased to cruelty and always telling that his life will be peaceful only if she dies. 12. On 13.10.2007, the occurrence had taken place. Though there is no eyewitness and that the neighbours of the deceased did not support the case of the prosecution the fact remains that the appellant had sustained severe burn injuries on both his legs and the deceased was also suffering from severe burn injuries and both of them were admitted in the Government Hospital, Bodi. 13. On admission, the appellant had stated that his wife committed suicide by pouring kerosene on herself and set fire and when she tried to catch hold of the appellant, he sustained burn injuries on his legs in that course. However, the deceased had stated that the appellant poured kerosene and set her ablaze and she caught hold of him. 14. Subsequently, she was examined by the Inspector of Police where she had given the same statement and immediately thereafter, she was examined by the learned Judicial Magistrate (P.W.11) who recorded the dying declaration. The deceased was consistent in her statement and had stated that the appellant had poured kerosene and set her ablaze. 15. However, the learned counsel for the appellant pointed out that the doctor had not given any intimation to the Magistrate to record the statement and alleged intimation given by the Inspector of Police has not been marked. 16. In Exhibit P-9, dying declaration, the learned Magistrate has recorded that on receipt of intimation from the Inspector of Police, she proceeded to hospital to record the dying declaration. The duty doctor has also certified that the patient was conscious throughout recording the statement. The Magistrate had also put some questions to find out whether the deponent was in good state of mind to give a statement. 17. There is no suggestion to P.Ws.1 and 2 that they have prompted the deceased to give a statement against her husband. 18. The Magistrate had also put some questions to find out whether the deponent was in good state of mind to give a statement. 17. There is no suggestion to P.Ws.1 and 2 that they have prompted the deceased to give a statement against her husband. 18. It is well settled that in order to sustain a conviction passed on circumstantial evidence, it must be complete and must be incapable of any explanation or hypothesis other than that of the guilt of the accused. 19. A dying declaration made before the learned Judicial Magistrate has a higher evidentiary value. The learned Judicial Magistrate is presumed to know how to record a dying declaration. She/he is a neutral person too. 20. Consistency in the dying declaration is a very relevant factor. In BandiChandraiah v. State (2007) 2 SCC (Cr) 289, the Apex Court has held as follows: “3. The conviction of the appellant is based upon three dying declarations; one recorded by the police at the earliest point of time, the second by the Revenue Mandal Officer; and the third by the Magistrate. All the three dying declarations are consistent. In our view, the High Court was quite justified in upholding the conviction of the appellant; as such, no ground for interference is made out. 4. The criminal appeal, accordingly, fails and the same is dismissed.” 21. In Lakhanv. State of Madhya Pradesh (2010) 8 SCC 514 the Apex Court has held as follows: “The doctrine of dying declaration is enshrined in the legal maxim ‘nemomoriturus praesumitur men tire‘, which means “a man will not meet his Maker with a lie in his mouth”. The doctrine of dying declaration is enshrined in Section 32 of the Evidence Act, 1872 (hereinafter called as “the Evidence Act”) as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.” 22. It is well settled that the conviction can be based on the sole testimony of dying declaration and in a given case even without corroboration, provided the same is truthful, reliable, trustworthy and inspires confidence. Such statements themselves are relevant facts in certain cases.” 22. It is well settled that the conviction can be based on the sole testimony of dying declaration and in a given case even without corroboration, provided the same is truthful, reliable, trustworthy and inspires confidence. 23. The consistent plea of the appellant is that the deceased poured kerosene and set fire to herself in order to commit suicide and she herself tried to catch hold of the appellant and he pushed her aside and escaped. According to him, in that course, he has sustained burn injuries. However, the consistent statement of the deceased is otherwise. She would state that the husband poured kerosene on her and set her ablaze and she tried to catch hold of him, but he pushed her aside and ran away from the house. 24. It is pertinent to note that the appellant had sustained burn injuries on both the legs and in fact his left leg has been amputated due to severe burn injuries. 25. The couple were married and living together for 9 years and it is submitted that they have no issues. According to the deceased, to take treatment for infertility, the appellant was insisting upon her to bring money. She would state that for about fifteen days prior to the occurrence, her husband did not give any money for expenses and did not share the bed and there was no contact between them and she had to go for some coolie work to earn money for eking the daily life. She would further state that, on the day of occurrence, at 11.50 a.m, the husband suddenly came to the house, poured the kerosene and set her ablaze; however, she caught hold of him. In her statement before the Inspector of Police, she had repeated the same and would state that at 11.50 a.m, her husband suddenly came to the house and poured kerosene and set her ablaze. When she questioned about his act, he replied that he can be peaceful only if she is dead and so saying, set her ablaze. 26. When the appellant was questioned under Section 313 Cr.P.C, he would state that he was sleeping in the house and at that time her wife poured kerosene and set fire to herself and she fell on him and he sustained burn injuries on his legs. 27. 26. When the appellant was questioned under Section 313 Cr.P.C, he would state that he was sleeping in the house and at that time her wife poured kerosene and set fire to herself and she fell on him and he sustained burn injuries on his legs. 27. Though the dying declaration of the deceased is consistent, the fact remains that she was much aggrieved and was living in a depressed mind set due to the conduct of her husband in not providing money for livelihood and continuous destruction from the marital life. It is understandable for the husband also in the same state of mind. 28. Taking into consideration of the fact that the appellant had sustained severe burn injuries on his legs, as a result of which, one of his legs has been amputated, and also the fact that grounds exist that the appellant had acted in a frustrated state, suddenly provoked which made him to lose self-control, without thinking about the consequences, he has caused the death of his wife by pouring kerosene and setting her ablaze. Therefore, we are of the view that the said offence will not attract the provisions of Section 302 IPC, but only come under the exception (1) of Section 300 IPC and attract a punishment under Section 304 Part I of IPC for causing the death with an intention of causing such death, however, without any pre-plan or pre meditation. 29. Therefore, an offence under Section 302 I.P.C. has not been made out but an offence under Section 304 part IPC has been made out for which the punishment shall be imprisonment which may extend to 10 years. However, considering the age and the family back ground of the accused, we reduce the sentence to 7 years. 30. In the result, the criminal appeal is partly allowed and the appellant is convicted for the offence under Section 304 Part I IPC and sentenced to undergo 7 years rigorous imprisonment. The period already undergone by the appellant in prison shall be set off against the above sentence.