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 stateme