JUDGMENT : (M.B. Snehalatha, J.) : Challenge in this appeal is to the judgment of conviction and order of sentence against the accused in S.C.No.572/2016 on the file of Court of Session, Kozhikode whereby the appellant/accused was convicted for the offences punishable under Sections 498A and 302 IPC. 2. Prosecution case in a nutshell is as follows: Victim in this case is one Bindu. Accused is her husband. They were living together at their residence at Kuttikkattoor. Accused used to subject the victim to cruelty and used to torture her. On 12.7.2015 at 1.30 pm, with intent to commit murder of the victim, accused poured kerosene over the body of the victim and set ablaze her. The victim who suffered burn injuries, succumbed to the injuries on 12.8.2015 while she was undergoing treatment at Medical College Hospital, Kozhikode. 3. After investigation, final report against the accused for the offences punishable under Sections 498A and 302 of IPC was filed before the jurisdictional Magistrate. Upon committal, the case was made over to the Special Additional Sessions Court (Marad cases), Kozhikode. 4. The learned Sessions Judge framed charge against the accused for the offences punishable under Sections 498A and 302 of IPC. Accused pleaded not guilty to the charge and claimed to be tried. 5. Before the trial court, prosecution examined PWs 1 to 24, marked Exts.P1 to P25. MO1 is the material object. After the closure of the prosecution evidence, accused was examined under Section 313(1)(b) of Cr.P.C regarding the incriminating circumstances appearing against him in the evidence of the prosecution. He maintained innocence. On the side of the accused DW1 and 2 were examined. By the judgment impugned in this appeal, the learned Sessions Judge found the accused guilty for the offences punishable under Sections 498A and 302 of IPC and he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/-for the offence punishable under Section 302 IPC, in default of payment of fine to undergo simple imprisonment for one year. For the offence punishable under Section 498A of IPC, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, in default of payment of fine to undergo simple imprisonment for one month. 6. For the offence punishable under Section 498A of IPC, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, in default of payment of fine to undergo simple imprisonment for one month. 6. The point which arises for consideration is whether the conviction entered and the sentence passed against the accused by the trial court is sustainable or not. 7. It is an admitted fact that the accused and the victim were husband and wife and they were living together at Kuttikattoor with their minor children. There is no dispute over the fact that Bindu who was the wife of the accused sustained burn injuries on 12.7.2015 at around 1.30 pm at the residence wherein she along with her husband and children were residing. Undisputably, the victim Bindu died on 12.8.2015 at Medical College Hospital, Kozhikode while she was undergoing treatment at the said hospital for the burn injuries. 8. PW15 is the doctor who conducted the postmortem examination on the dead body of Bindu and Ext.P12 is the postmortem certificate. The ante-mortem injuries noted in Ext.P12 are: “Non heeling burns with yellowish infected areas seen on face, ears, neck, front and back of chest and right upper limb upto the wrist. Heeling burns over an area 10x7 cm on inner aspect of left arm 10 cm. below armpit (30% of total body surface area involved)” 9. In Ext.P12 the opinion as to the cause of death stated by the doctor is that the deceased died due to deep burns involving 30% of the total body surface area and its complications including pneumonia. 10. The prosecution also caused production of Ext.P5 case sheet and examined PW18 doctor. Ext.P5 case sheet in respect of victim Bindu and Ext.P2 postmortem certificate coupled with the evidence tendered by the doctors viz. PWs15 and 18 would reveal that the victim Bindu who suffered burn injuries on 12.7.2015 was admitted at Medical College Hospital, Kozhikode died on 12.8.2015 due to the burn injuries sustained and its complications. 11. Thus, the case of the prosecution that on 12.7.2015 the victim Bindu sustained burn injuries and died as a result of the burn injuries stands proved. 12. The next aspect for consideration is whether her death was a homicide or suicide and if it is a homicide, who caused her death. 13. 11. Thus, the case of the prosecution that on 12.7.2015 the victim Bindu sustained burn injuries and died as a result of the burn injuries stands proved. 12. The next aspect for consideration is whether her death was a homicide or suicide and if it is a homicide, who caused her death. 13. According to the prosecution on 12.7.2015 at around 1.30 pm, at the residence at Kuttikkattoor wherein the victim Bindu and accused were living, accused poured kerosene over her body and set fire to her and caused burn injuries and consequential death. 14. The learned Public Prosecutor contended that the versions of PWs1, 2, 4 and 6 coupled with the Ext.P11 dying declaration given by the victim to the learned Judicial First Class Magistrate and the dying declaration of the victim to her siblings and relatives while she was undergoing treatment at the hospital, would clearly shows that the accused poured kerosene over her body and set fire to her and caused the burn injuries to her and thus caused her death. 15. The defense canvassed by the accused is that the victim Bindu, who was suffering from stress and depression, poured kerosene over her body and she set herself on fire. 16. The learned counsel for the accused pointed out that in Ext.P1 FI statement given by PW1, who is the sister of the victim, PW1 has specifically stated that when she visited the victim at Medical College Hospital who was undergoing treatment there with burn injuries, victim told her that she herself poured kerosene over her body and set herself on fire. The learned counsel for the accused vehemently contended that if it was a case where the accused poured kerosene and set fire, naturally at the time of laying Ext.P1 FI statement, PW1 who is none other than her own sister would have made mention of the said crucial fact to the police. According to the learned counsel for the accused, the version of PW1 in Ext.P1 FI statement that Bindu immolated herself is to be believed, since the said statement was given by PW1 after visiting the victim in the hospital. 17. Now let us have a look at the testimonies of the witnesses. PW1 is the sister of the victim. According to the learned counsel for the accused, the version of PW1 in Ext.P1 FI statement that Bindu immolated herself is to be believed, since the said statement was given by PW1 after visiting the victim in the hospital. 17. Now let us have a look at the testimonies of the witnesses. PW1 is the sister of the victim. She testified before the court that on 12.7.2015, at about 3.45 pm., she received a phone call from her colleagues at Medical College Hospital, Kozhikode that her sister Bindu had been admitted there with burn injuries. Accordingly, she reached the Medical College Hospital at 5.30 pm. When she reached there, the learned Magistrate was seen recording the dying declaration of the victim. Further, she has testified that victim told her that the accused caused the burn injuries by pouring kerosene over her body and she was brought to the hospital. The victim also told her that after the incident accused fled from the scene. PW1 has further testified that accused is an alcoholic and drug addict who used to harass the victim constantly. 18. PW2 who is the brother of the victim has also testified that accused is a drunkard; that the accused used to harass victim Bindu; that on 12.7.2015 at about 2.30 pm. he received information regarding the incident in this crime and accordingly, he had gone to the Medical College Hospital. His further version is that on 15.7.2015 when he visited the injured Bindu at the hospital, she told him that the accused poured kerosene over her body. PW4 Sindhu is the twin sister of victim Bindu. According to her, Bindu used to contact her over phone regularly; that on 12.7.2015 at noon Bindu had called her over phone and told her that accused assaulted her. After a short while she got information that Bindu sustained burn injuries and had been admitted in the hospital. Accordingly, she reached at the hospital and upon enquiry, the victim told her that accused poured kerosene over her body and set her ablaze. PW5, who is another relative of the victim has also testified that when she enquired the victim about the incident, the victim told her that it was done by the accused. PW6 is the neighbour who took Bindu to the Medical College Hospital. His version is that on 12.7.2015 at about 1.30 pm. PW5, who is another relative of the victim has also testified that when she enquired the victim about the incident, the victim told her that it was done by the accused. PW6 is the neighbour who took Bindu to the Medical College Hospital. His version is that on 12.7.2015 at about 1.30 pm. while he was going to the shop, he could see Bindu running with flames on her body and sought help to rescue her. Accordingly, he took her to the Medical College Hospital in an autorickshaw. 19. The investigating officer viz.PW23 had taken into custody MO1 stove from the scene of occurrence and MO1 stove was sent for scientific analysis to detect whether there was presence of kerosene in the stove. In Ext.P23 FSL report it has been reported that there was presence of kerosene in the stove. 20. PWs1, 2, 4 and 5 have testified before the court that upon enquiry made by them from the victim Bindu as to the cause of burn injuries while she was undergoing treatment at the hospital, the victim told them that the accused poured kerosene over her body and set her ablaze. 21. Prosecution would also rely on Ext.P11 dying declaration recorded by the learned Judicial First Class Magistrate viz. PW14. The learned Magistrate has testified that on 12.7.2015 at 6.40 pm. as per the requisition of the Sub Inspector of Police, Medical College Police Station, he reached the Medical College Hospital and recorded Ext.P11 dying declaration of the victim Bindu who was admitted in Ward No.23. The evidence tendered by PW14 would reveal that prior to the recording of Ext.P11 dying declaration, the learned Magistrate had obtained certificate from the Medical Officer to the effect that victim Bindu was conscious and she was able to speak about the incident and she was sound in mind for recording the statement. Ext.P11 contains the said certificate of the doctor. In Ext.P11 dying declaration, the victim specifically stated that while she was lying on the cot, her husband poured kerosene over her body and he set her ablaze. Thus, it can be seen that immediately after the incident ie. on 12.7.2015 at 6.40 pm. the victim had given Ext.P11 dying declaration to the effect that it was the accused who poured kerosene over her body and set fire to her and it was thus she sustained the burn injuries. 22. Thus, it can be seen that immediately after the incident ie. on 12.7.2015 at 6.40 pm. the victim had given Ext.P11 dying declaration to the effect that it was the accused who poured kerosene over her body and set fire to her and it was thus she sustained the burn injuries. 22. The statement of the victim in the dying declaration recorded by the learned Magistrate exactly tallies with the versions of PWs 1, 2, 4 and 5 that upon enquiry made as to how she sustained burn injuries, the victim told them that accused poured kerosene over her body and set fire to her. Thus, Ext.P11 dying declaration is corroborated by the versions of PWs 1, 2, 4, and 5. 23. Ext.P11 dying declaration recorded by PW14 reads as follows: 24. It has come out in evidence that Ext.P11 dying declaration was recorded by the learned Magistrate on 12.7.2015 itself at 6.40 pm. at Medical College Hospital, Kozhikode and it was recorded by the learned Magistrate after satisfying that the victim was in a fit state of mind to make the dying declaration. Ext.P11 would show that the doctor has certified that the dying declaration was recorded in the presence of the doctor and throughout the declaration the patient was conscious and in sound mind and absolutely fit for giving declaration. 25. The doctrine of dying declaration is enshrined in the legal maxim “Nemo moriturus praesumitur mentire” which means that a man will not meet his maker with a lie in his mouth. The doctrine of dying declaration is enshrined in Section 32(1) of Indian Evidence Act 1872 as an exception to the general law contained in Section 60 of the Evidence Act which provides that oral evidence in all cases must be direct. 26. The learned counsel for the accused would contend that since Ext.P1 FI statement laid by PW1 who is none other than the sister of the victim would reveal that the victim set herself on fire after pouring kerosene over her body, the version given by PWs 1, 2, 4 and 5 before the court and Ext.P11 dying declaration recorded by the learned Magistrate cannot be relied on. It is contended by the learned counsel that since there are inconsistent dying declarations, no reliance can be placed on Ext.P11 dying declaration recorded by the learned Magistrate. 27. It is contended by the learned counsel that since there are inconsistent dying declarations, no reliance can be placed on Ext.P11 dying declaration recorded by the learned Magistrate. 27. The learned Public Prosecutor contended that Ext.P11 dying declaration recorded by a competent Magistrate is to be accepted and it stands on a much higher footing. 28. It is to be borne in mind that Ext.P1 FI statement though seen recorded on 14.7.2015, reached before the court only on 16.7.2015. The categoric version of PW1 before the court is that she had not stated to the police that victim poured kerosene and set fire on herself. It is to be borne in mind that PW1 has testified before the court that at the time when she visited her sister at the Medical College Hospital, the victim told her that the accused poured kerosene. Therefore, we are of the view that the statement in Ext.P1 FI statement dated 14.7.2015 which is seen to have reached before the court on 16.7.2015 cannot be given much credence than Ext.P11 dying declaration given by the victim to PW14 viz. the Judicial First Class Magistrate on 12.7.2015 at 6.40 pm. Moreover, it is a well settled principle that FIS is not a substantive piece of evidence. It can be used to corroborate the informant under Section 157 of the Evidence Act, or to contradict the informant under Section 145 of the Evidence Act, if the informant is called as a witness at the time of trial. It cannot be used for corroboration or contradiction of any witness other than the one lodging the FIS. Therefore, even if in Ext.P1 FI statement, PW1 who is not an eye witness has stated that the victim herself poured kerosene and set herself on fire, it does not affect the credibility of Ext.P11 dying declaration of the victim which was recorded by the Judicial First Class Magistrate and the versions of PW2, PW4 and PW5 that the victim told them that it was the accused who poured kerosene over her body and set her on fire. 29. 29. In Ravi Chander and Others v. State of Punjab ( 1998(9) SCC 303 ), Harjit Kaur v. State of Punjab ( 1999(6) SCC 545 ), Koli Chunilal Savji and Another v. State of Gujarat ( 1999(9) SCC 562 ) and Vikas and Others v. State of Maharashtra ( 2008(2) SCC 516 ), the Hon’ble Apex Court held that a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by an officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim. However, circumstances showing anything to the contrary should not be there in the facts of the case. 30. In the case on hand there are no inconsistent dying declarations. The dying declaration of the victim was recorded by the learned Magistrate on the date of incident itself ie. on 12.7.2015 at 6.40 pm. wherein the victim categorically stated that her husband poured kerosene over her body and set her on fire. PWs 1, 2 and 4 who are the siblings of the deceased have also testified that the victim told them that it was the accused who poured kerosene over her body and set her on fire. So the contention raised by the learned counsel for the accused that there is inconsistency in the dying declarations of the victim, is untenable. 31. The learned counsel for the accused would contend that there is absolutely no reason at all to discard and doubt the versions of DWs 1 and 2 who are the minor children of the victim and the accused who testified that their mother viz. the victim herself poured kerosene over her body and set her on fire. According to DWs1 and 2, on the date of incident their father quarreled with their mother for not giving the telephone number of the rider of the scooter which hit their mother. Then their mother took kerosene from a can, poured it on her head and tried to set the fire using a matchbox. Immediately, their father viz. the accused snatched away the matchbox from their mother. While so, their mother rushed to the courtyard, took another matchbox and set herself on fire. DW1 and DW2 have further testified that their father had tried to save their mother by covering her with his dhoti. Immediately, their father viz. the accused snatched away the matchbox from their mother. While so, their mother rushed to the courtyard, took another matchbox and set herself on fire. DW1 and DW2 have further testified that their father had tried to save their mother by covering her with his dhoti. It is also their version that they also tried to douse the fire by pouring water over the body of their mother. 32. It is to be borne in mind that if there was an attempt on the part of the accused to save the victim and to douse the fire, as spoken to by DWs1 and 2, naturally he would take the victim to the hospital also. It has come out in evidence that the victim who was in flames, rushed to the road seeking help from the local people and it was PW6 who took her to the hospital. So the version given by DWs 1 and 2 that their father viz. the accused tried to douse the fire cannot be believed. It has come out in evidence that subsequent to the loss of their mother, DWs1 and 2 viz. the minor children, were in the care and custody of their paternal grandmother. It has also come out in evidence that prior to giving evidence before the court their paternal grandmother had tutored them. 33. It is also to be borne in mind that in Ext.P5 case sheet, PW18 doctor has recorded the history and cause as (as stated by the patient). PW18 the doctor categorically testified that the patient Bindu stated the said cause of injury at the time when she was admitted at the Medical College Hospital, Kozhikode with burn injuries. PW18 has further testified that the patient was conscious and oriented at the time of admission. The said entry in Ext.P5 tallies with the Ext.P11 dying declaration given by the victim to the learned Magistrate and also the testimonies given by PWs1 ,2 4 and 5 before the court that the accused poured kerosene over the body and set her on fire. There is no reason whatsoever not to act upon Ext.P11 dying declaration of the victim, wherein she has categorically stated that it was the accused who poured kerosene over her body and set her on fire. There is no reason whatsoever not to act upon Ext.P11 dying declaration of the victim, wherein she has categorically stated that it was the accused who poured kerosene over her body and set her on fire. Ext.P11 dying declaration made by the victim is further corroborated by the versions of PW1, PW2, PW4 and PW5 and the entries in Ext.P5 case sheet and the evidence of PW18 doctor. 34. Prosecution has succeeded in establishing that with intent to commit murder of his wife Bindu, accused poured kerosene over the body of the victim and set her on fire and caused her death and thus committed the offence punishable under Section 302 of IPC. We find no reason to interfere with the said finding rendered by the learned Sessions Judge. 35. The remaining question for consideration is whether any interference is called for in the finding of the trial court regarding the conviction and sentence under Section 498A IPC. 36. The learned counsel for the accused contended that the trial court went wrong in convicting the accused for the offence under Section 498A IPC as the ingredients for the said offence had not been proved by the prosecution. It is contended by the learned counsel that in the charge framed by the trial court, the allegation was that the accused exerted cruelty towards victim Bindu demanding more dowry and thereby committed offence punishable under Section 498A IPC. The learned counsel for the accused contended that there is no evidence in support of the said charge framed by the court. 37. The charge framed by the learned Sessions Judge for the offence under Section 498A reads as follows: “Firstly That, you married Bindu aged 37 and were living as husband and wife. Three children were born in that wedlock. Subsequently, you exerted cruelty towards Bindu demanding more dowry and thereby committed an offence under Section 498A IPC and is within my cognizance. xxxxxxx” 38. PWs1, 2 and 4 who are the siblings of the victim in their evidence testified that accused used to physically assault the victim after consuming alcohol. But they have no case at all that the accused subjected the victim to cruelty demanding dowry. xxxxxxx” 38. PWs1, 2 and 4 who are the siblings of the victim in their evidence testified that accused used to physically assault the victim after consuming alcohol. But they have no case at all that the accused subjected the victim to cruelty demanding dowry. Though prosecution has succeeded in establishing that accused used to harass her after consuming alcohol, prosecution failed to establish that the accused harassed his wife Bindu with a view to coerce her or any person related to her to meet any unlawful demand for any property or any valuable security or on account of failure by her or any person related to her to meet any such demand. In the absence of any such evidence, we find force in the argument advanced by the learned counsel for the accused that the charge under Section 498A IPC has not been established against the accused and the accused is entitled to acquittal under the said head of charge. Therefore, accused is found not guilty for the offence under Section 498A IPC and we set aside the conviction and sentence against him for the offence under Section 498A IPC. 39. In the result, Crl. Appeal is allowed in part as follows: (a) The conviction and sentence passed against the accused for the offence punishable under Section 302 IPC stands confirmed. (b) The conviction and sentence passed against the accused for the offence punishable under Section 498A IPC stands set aside.