JUDGMENT : 1. Heard Mr.J.Sulthan Basha for Mr.R.Gandhi, learned counsel appearing for the appellant and Ms.J.Ananda Devi, learned Government Advocate (Crl.Side) appearing for the respondent. 2. This appeal has been filed to set aside the Judgment dated 28.02.2007 made in S.C.No.35 of 2006 on the file of the Additional District & Sessions Judge (Fast Track Court No.IV), Periyakulam. The appellant was convicted for the offence under Section 306 of IPC and sentenced him to undergo nine years Rigorous Imprisonment and pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand only) in default to undergo six years Rigorous imprisonment. 3. The case against the appellant is that prior to 27.07.1997, the accused married the deceased and afterwards, in two months, he left for his job at Pune and on 27.07.1997, there was wordy quarrel between the accused and his wife. The accused assaulted his wife and she fell upon the dosa thava and get burn injuries on 03.10.1997 at about 12.30 p.m. The case under Section 304(B) of IPC was registered against the appellant. After trial, the Sessions Court altered the charge into Section 306 of IPC and convicted the appellant and sentenced him to undergo nine years Rigorous Imprisonment and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand only) in default to undergo six years Rigorous imprisonment. 4. On the side of the appellant, it is stated that the death is only due to accidental fire. The saree of the deceased fell upon the stove and in that accident, the victim got injuries and died three months after the occurrence. It is stated that the appellant and his wife lived together only for 40 days. Afterwards, he went to Pune for work. During his absence, the deceased live only with her family at her mother's house. The appellant came back after 1+ years and she insisted the appellant to get a job here and that is the reason for the quarrel. It is stated that in the dying declaration recorded by the learned Judicial Magistrate, Periyakulam, which is marked as Ex.P8 it is the only allegation levelled against the appellant. In the dying declaration, it is stated that there was a wordy quarrel between the husband and wife only regarding her request asking him to get a job here and not to go to Pune. It is further deposed that “any other language”. In the dying declaration, it is stated that there was a wordy quarrel between the husband and wife only regarding her request asking him to get a job here and not to go to Pune. It is further deposed that “any other language”. In her inquest report, it is stated that the accused set fire to his wife by pouring kerosene upon her. In Ex.P15, FIR, it is stated that there was a quarrel between the husband and wife and the wife fell upon the stove and got the injuries. It is further stated that the witnesses are close relatives of the deceased and they were not eye witnesses. P.Ws.3 and 4 turned hostile. P.Ws.5 and 6 who were neighbors also were turned hostile. Except the evidence of P.Ws.1 and 2, there is no evidence to prove that there is a dowry demand. 5. On the side of the appellant, it is stated that even as per the dying declaration recorded by the learned Judicial Magistrate, there is no abetment for committing suicide. It is further stated that for a charge under Section 306 of IPC a clear mens rea is needed to prove the offence. He has further placed reliance on the Judgment passed by the Hon'ble Supreme Court in the case of S.S.Cheena v. Vijay Kumar Mahajan and Another reported in (2011) 1 MLJ (Crl) 547 (SC), which reads as follows: “28.Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.” 6. On the side of the appellant, the learned counsel placed reliance on the Judgment passed by this Court in the case of Suresh Kumar v. State rep. On the side of the appellant, the learned counsel placed reliance on the Judgment passed by this Court in the case of Suresh Kumar v. State rep. By its Inspector of Police reported in (2014) 1 MLJ (Crl) 303, which reads as follows: “In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.” 7. On the side of the appellant, the learned counsel placed reliance on the Judgment passed by the Hon'ble Supreme Court in the case of M.Mohan v. State rep. By the Deputy Superintendent of Police reported in (2011) 3 SCC 626 , which reads as follows: “44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.” 8. On the side of the appellant, the learned counsel placed reliance on the Judgment passed by this Court in the case of Rameshbhai Punjamji Maji Rana (Bhil) v. State of Gujarat reported in (2005) (2) Crimes 552, which reads as follows: “Mere act or omission on part of a person which in fact resulted in facilitating commission of offence will not satisfy requirement of explanation 2 of clause thirdly of Section 107 IPC. Mere act or omission on part of a person which in fact resulted in facilitating commission of offence will not satisfy requirement of explanation 2 of clause thirdly of Section 107 IPC.” 9. On the side of the respondent, it is stated that the appellant and the deceased lived together only for a period of 40 to 50 days. Afterwards, the appellant went to Pune and he did not turn up till 1+ years. He never sent money to her. On the side of the respondent, it is stated that the appellant and the deceased lived together only for a period of 40 to 50 days. Afterwards, the appellant went to Pune and he did not turn up till 1+ years. He never sent money to her. P.W.1 through has deposed admitted that her son-in-law never sent money to her daughter and he returned only after 1+ years and that even after returning from Pune, he tortured her demanding further dowry. In the dying declaration, it is clearly stated that “any other language”. It is clearly stated about the harassment by the husband and the conviction given by the Sessions Court is correct and prayed that the appeal is to be dismissed. It is stated that in the RDO report also, it is stated that the appellant did not come forward to see his wife while she is in the hospital. There is no burn injury on the accused and thereby, the prosecution has proved the charge against the appellant. 10. On the side of the appellant, it is stated that the respondent has not seized the stove and marked the same before the Court and whether the stove is a kerosene stove or a gas stove is not elicited in the prosecution case and that P.W.1 has deposed that “any other language”. 11. A perusal of the records reveals that except P.Ws.1 and 2 no other witnesses gave evidence regarding the occurrence. P.Ws.1 and 2 are not eye witnesses. P.Ws.3 to 6 turned hostile. A perusal of the dying declaration reveals that there is a quarrel between the deceased and the appellant. The deceased insisted upon the appellant to stay at home and to do some job in that area itself. The dying declaration clearly reveals that the occurrence is only due to an accidental fire. Hence, the deceased did not commit suicide. There is no question of abetting the suicide also. The conviction by the Sessions Court is under Section 306 of IPC, though the charge is only under Section 304(B) of IPC. Though P.W.1 has deposed that the dispute is regarding the balance of jewel to be paid as a part of dowry, the dying declaration clearly reveals that the dispute is not regarding any dowry demand. Hence the offence under Section 304 (B) of IPC is also not made out. Though P.W.1 has deposed that the dispute is regarding the balance of jewel to be paid as a part of dowry, the dying declaration clearly reveals that the dispute is not regarding any dowry demand. Hence the offence under Section 304 (B) of IPC is also not made out. The maximum allegation is that there was quarrel between the appellant and the deceased and in that quarrel, the accused assaulted the deceased. The words in the dying declaration also stated that “any other language”. So the assault is also mutual and moreover the maximum offence made out against the appellant under Section 323 of IPC only. It is sufficient to convict the appellant under Section 323 of IPC. Hence, the judgment passed by the lower Court is to be modified to the effect that the appellant is found guilty under Section 323 of IPC and is sentenced to undergo one month simple imprisonment and to pay a fine of Rs.1,000/- (Rupees One Thousand only). If the appellant/A2 is not in duress, the trial Court is directed to take steps to secure him in prison to serve out the remaining period of sentence. 12. With the above observation, this criminal appeal is partly allowed. The trial Court is directed to take appropriate steps so as to incarcerate the appellant in prison to serve out the remaining period of sentence. The excess fine amount if any paid by the appellant shall be refund forthwith. The Registry is directed to send this order copy to the lower Court immediately.