# Smt. Kiran & Anr v. State of U.P

- **Citation:** (2022) 12 ILRA 1003
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-29
- **Case number:** Criminal Appeal No. 2218 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kiran-anr-v-state-of-u-p-47952
- **Pages:** 10

## Headnote

Criminal Law- Indian Evidence Act, 1972-
Section 154- Evidence of a hostile witness
cannot be discarded as a whole, and
relevant
part
thereof,
which
are
admissible in law, can be used by
prosecution or the defence.

Settled law that the part of the testimony of a
hostile witness which is relevant and admissible
can be used.

Indian Evidence Act, 1972 - Section 32- In
case the court comes to the conclusion
that the dying declaration is true and
reliable, has been recorded by a person at
a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made
under any tutoring/duress/prompting; it
can be the sole basis for recording
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction. In such an eventuality no
corroboration is required. In order to pass
the test reliability, a dying declaration has
to be subjected to a very close scrutiny,
keeping
in
view
the
fact
that
the
statement has been made in the absence
of the accused, who had no opportunity of
testing the veracity of the statement by
cross-examination-The hostility of the
witnesses of fact cannot demolish the
value
and
reliability
of
the
dyingdeclaration of the deceased which has
been
proved
by
the
prosecution
in
accordance with law and is a truthful
version of the incident that occurred and
the circumstances leading to her death.

Dying declaration can be solely relied upon for
convicting the accused, without seeking further
corroboration, where the dying declaration is
found to be truthful and legally admissible.

Indian Evidence Act, 1972 - Section 32-
Dying-declaration no where says that
appellant Smt.Kiran had any role in
setting the deceased ablazed- Conviction
and sentence against appellant Smt. Kiran
under Sections 304/34 and 120-B I.P.C. is
hereby set aside and she is acquitted of all
the charges framed against her.

Where no part is assigned to the accused in the
dying declaration, then conviction of such
accused is illegal and unsustainable.

Doctrine of Proportionality- Keeping in
view criminal jurisprudence in our country
which is reformative and corrective and
not retributive, this Court considers that
no accused person is incapable of being
reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to
bring
them
in
the
social
stream.
'Reformative theory of punishment' is to
be adopted and for that reason, it is
necessary to impose punishment keeping
in view the 'doctrine of proportionality'.

As the judicial trend in our country is
reformative and not retributive hence the period
of incarceration undergone by the accused
would be a relevant factor in imposing the
punishment.

Criminal Appeal partly allowed. (E-3)
(Para 16, 17, 18, 20, 22, 25, 27, 28, 29)

Case law/ Judgements relied upon:-

## Text

12 All. Smt. Kiran & Anr. Vs. State of U.P.
1003
Samsul Haque v. State of Assam, (2019) 18
SCC 161 held that judgment of acquittal,
where two views are possible, should not be
set aside, even if view formed by appellate
court may be a more probable one,
interference with acquittal can only be
justified when it is based on a perverse view.

18. The prosecutrix was examined as
PW1, who did not support the prosecution
case and deposed that she was in love with
respondent No.2. Her parents wanted her to
marry with an old man, hence, she eloped
with respondent No.2 out of her own
volition. They both performed marriage in
Ghaziabad and after that she came to the
police herself. It is also deposed by the
prosecutrix that she was never enticed by
respondent
No.2
and
rape
was
not
committed with her against her will. This
witness was declared hostile.

19. Apart from the prosecutrix, the
prosecution examined three more witnesses
of fact, namely, PW2, who is the informant,
PW3, who is brother of the prosecutrix and
PW4, who is mother of the prosecutrix. As
per prosecution story, no one is eye-witness
except PW3.

20. Prosecution examined PW5 Dr.
Sandesh
Arekh,
who
had
medically
examined the prosecutrix. He has opined
that no opinion can be given with regard to
the fact of rape. Learned trial court after
examining the evidence on record and
hearing
both
the
sides,
found
that
prosecution could not prove the case
against respondent No.2 beyond reasonable
doubt and respondent No.2 was not guilty.
Consequently he was acquitted of all the
charges levelled against him.

21. We are also of the opinion that
this appeal is nothing but an abuse of the
process of law. Hence, we permit the
learned counsel for the appellant to
withdraw this appeal.

22. Accordingly, the appeal is
dismissed as withdrawn.
----------
(2022) 12 ILRA 1003
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 2218 of 2018

Smt. Kiran & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Abhay Raj Singh, Sri Vikas Rana, Sri Vishal
Mohan Gupta

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1972-
Section 154- Evidence of a hostile witness
cannot be discarded as a whole, and
relevant
part
thereof,
which
are
admissible in law, can be used by
prosecution or the defence.

Settled law that the part of the testimony of a
hostile witness which is relevant and admissible
can be used.

Indian Evidence Act, 1972 - Section 32- In
case the court comes to the conclusion
that the dying declaration is true and
reliable, has been recorded by a person at
a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made
under any tutoring/duress/prompting; it
can be the sole basis for recording
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction. In such an eventuality no
corroboration is required. In order to pass
the test reliability, a dying declaration has
to be subjected to a very close scrutiny,
keeping
in
view
the
fact
that
the
statement has been made in the absence
of the accused, who had no opportunity of
testing the veracity of the statement by
cross-examination-The hostility of the
witnesses of fact cannot demolish the
value
and
reliability
of
the
dyingdeclaration of the deceased which has
been
proved
by
the
prosecution
in
accordance with law and is a truthful
version of the incident that occurred and
the circumstances leading to her death.

Dying declaration can be solely relied upon for
convicting the accused, without seeking further
corroboration, where the dying declaration is
found to be truthful and legally admissible.

Indian Evidence Act, 1972 - Section 32-
Dying-declaration no where says that
appellant Smt.Kiran had any role in
setting the deceased ablazed- Conviction
and sentence against appellant Smt. Kiran
under Sections 304/34 and 120-B I.P.C. is
hereby set aside and she is acquitted of all
the charges framed against her.

Where no part is assigned to the accused in the
dying declaration, then conviction of such
accused is illegal and unsustainable.

Doctrine of Proportionality- Keeping in
view criminal jurisprudence in our country
which is reformative and corrective and
not retributive, this Court considers that
no accused person is incapable of being
reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to
bring
them
in
the
social
stream.
'Reformative theory of punishment' is to
be adopted and for that reason, it is
necessary to impose punishment keeping
in view the 'doctrine of proportionality'.

As the judicial trend in our country is
reformative and not retributive hence the period
of incarceration undergone by the accused
would be a relevant factor in imposing the
punishment.

Criminal Appeal partly allowed. (E-3)
(Para 16, 17, 18, 20, 22, 25, 27, 28, 29)

Case law/ Judgements relied upon:-

1. Jail Appeal No.315 of 2013 (Prakash Vs St. of
U.P.).

2. Koli Lakhmanbhai Chandabhai Vs St. of Guj.
[1999 (8) SCC 624]

3. Ramesh Harijan Vs St. of U.P. [2012 (5) SCC
777]

4. St. of U.P. Vs Ramesh Prasad Misra &
anr.,1996 AIR (SC) 2766

5. Lakhan Vs St. of M.P ,(2010) 8 Supreme
Court Cases 514

6. Krishan Vs St. of Har. (2013) 3 Supreme
Court Cases 280

7. Ramilaben Hasmukhbhai Khristi Vs St. of Guj.,
(2002) 7 SCC 56

8. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926

(Delivered by The Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Ajai Tyagi, J.)

1. Heard learned counsel for the
appellants and learned A.G.A. for the State
and perused the record.

2. The instant criminal appeal has
been filed with the prayer to set aside/quash
the impugned judgment and order dated
5.4.2018 passed by the learned Additional
Sessions Judge, Court No.3, Shahjahanpur
in Sessions Trial No.338 of 2014 (State v.
Anil & Anr.) (arising out of Crime No.175
of 2014, under Sections 304, 452, 506, 120B IPC, Police Station-Sadar Bazar, DistrictShahjahanpur and to acquit the appellants.
12 All. Smt. Kiran & Anr. Vs. State of U.P.
1005
3. Brief facts as culled out from the record
are that the informant-Kandhai submitted a
written report to the Superintendent of
Police-Shahjahanpur, on the basis of which,
F.I.R. was registered at Police StationSadar Bazar, District-Shahjahanpur. It is
stated in the aforesaid report that daughter
of the informant namely Rajbeti used to
reside in a separate house with her
husband. On 25.11.2013 at about 10:00
p.m., Govind, Suraj and Anil all real
brothers entered the house of her daughter
and set her ablaze by pouring kerosene oil.
It is also stated in the report that the son of
informant Rajesh and Budhpal s/o Amarpal
and informant himself saw them coming
out from the house and running. Smt. Kiran
who is daughter-in-law of his daughter was
having illicit relations with the aforesaid
Suraj to which the informant's daughter
Rajbeti objected several times. Rajbeti was
admitted to hospital on 25.11.2013 in
burning condition where she died on
01.12.2013 during the course of treatment.
On the basis of the aforesaid report, the
Case Crime No.175 of 2014 was registered
at police station. The investigation was
taken up by the Investigating Officer during
which he visited the spot before the site
plan.
The
dying-declaration
of
the
injured/deceased Rajbeti was recorded by
the Additional District Magistrate in
hospital on 27.11.2013. The statements of
witnesses were recorded by the the
Investigation Officer under Section 313
Cr.P.C.. After the death of the deceased,
inquest proceedings were conducted and
inquest report was prepared. The concerned
doctor conducted the post-mortem on the
dead-body and prepared the post-mortem
report. After completion of investigation,
the charge-sheet was submitted by the
Investigating Officer only against two
accused persons Anil and Smt. Kiran and
other named accused Suraj and Jagdish
were
not
charge-sheeted
because
no
evidence was found against them. The case
being triable exclusively by the court of
sessions was committed by the Magistrate
to the sessions court.

4. Learned trial court framed charges
against the accused Anil and Smt. Kiran
under Sections 452, 304 read with Section
34, 120-B and 506 I.P.C. The accused
persons denied the charges and came to be
tried.

The
prosecution
examined
the
following witnesses:-

1.
Kandhai (informant)
PW-1
2.
Rajesh
PW-2
3.
Budh Pal
PW-3
4.
Dr. K.P. Singh
PW-4
5.
Laxmi Shankar Singh PW-5

5. To bring on the charges, apart from the
aforesaid oral testimony, the prosecution
filed the following documentary evidence
also which was proved by leading the
evidence:-

1.
F.I.R.
Ex. Ka.4
2.
Written Report
Ex. Ka.1
3.
Dying- Declaration
Ex. Ka.3
4.
Death Memo
Ex. Ka.13
5.
Post-mortem report
Ex.Ka.2
6.
Panchayatnama
Ex.Ka.7
7.
Charge-sheet
Ex. Ka.14
8.
Site Plan
Ex.Ka.6

6. After completion of prosecution
evidence, the statement of accused persons
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
were recorded under Section 313 Cr.P.C.
No evidence was adduced by the accused
persons in their defence.

7. After hearing both the parties
learned trial court convicted Smt. Kiran for
the offence under Section 304/34 IPC and
awarded sentence for ten years with fine,
under Section 120-B IPC and awarded 10
years with fine. The trial court convicted
accused Anil under Section 304/34 IPC for
life imprisonment with fine and Section
120-B for ten years with fine and under
Section 452 I.P.C. for 5 years imprisonment
with fine. Both the accused persons were
acquitted for the offence under Section 506
IPC and Smt. Kiran was also acquitted for
the offence under Section 452 IPC.

8. Learned counsel for the appellants
submitted that this is a case of no evidence as
far as appellant-Smt. Kiran is concerned. It is
submitted that in this case prosecution has
produced three witnesses of fact namely PW1, PW-2 and PW-3. Among them, PW-1 is
father of the deceased who is informant also.
In his testimony, he has not supported the
prosecution version and has been declared
hostile. Even in cross-examination by the
State, no fact has emerged which could go
against the appellant. In the same way, PW-3
and PW-4 have also not supported the
prosecution case and have turned hostile
hence there is no witness of fact who had
supported the prosecution case. It is next
submitted that in dying-declaration also the
deceased has not stated any role of appellant
Smt Kiran and even in the dying-declaration,
it is stated that at the time of occurrence
appellant Kiran was sleeping in separate
room and she did not come out from her
room.

9. Learned counsel for the appellants
also made submission that the trial court
has convicted both the appellants only on
the basis of dying-declaration which cannot
be said to be reliable. It is also submitted
that no witness of fact has supported the
prosecution case hence dying-declaration is
not corroborated by any evidence hence it
is not safe to rely on such dying-declaration
which is not corroborated at all. Moreover,
the deceased has implicated two brothers of
appellant Anil namely Suraj and Jagdish
but no evidence was found against them
during investigation by the Investigating
Officer and they were not charge-sheeted.
Even the named accused Suraj and Jagdish
were minor at the time of the said
occurrence hence the dying-declaration is
wholly
unreliable,
concocted
and
exaggerated version as given by the
deceased to implicate all three brothers
falsely. Learned counsel also submitted that
in dying-declaration, it is stated that the
deceased had taken her daughter-in-law to
her house and Suraj and Jagdish and Anil
came behind them secretly and committed
the crime in the night. This story cannot be
believed. This narration is given only to
implicate all the three brothers which was
not found correct even during investigation.
Hence, learned trial court has committed
grave error in relying on such type of
dying-declaration. Hence appellants are
liable to be acquitted. Learned counsel for
the appellants in support of his submission
has
also
placed
reliance
upon
the
judgments of this Court passed in Criminal
Appeal No.2878 of 2013 (Babu v. State of
U.P.) and in Jail Appeal No.315 of 2013
(Prakash v. State of U.P.).

10.

Learned
A.G.A.
opposed
the
submissions made by learned counsel for
the appellants and contended that witness
of fact have turned hostile because they
entered into connivance with the appellants
at the time of their deposition in learned
12 All. Smt. Kiran & Anr. Vs. State of U.P.
1007
trial court but it does not create any doubt
on prosecution case because the deceased
was the best witness of the occurrence for
which she had given dying-declaration and
dying-declaration was recorded by the
Additional District Magistrate in hospital.
Learned A.G.A. further submitted that
A.D.M. Laxmi Shankar Singh is examined
as PW-5 who is absolutely an independent
witness. He had proved dying-declaration
in his testimony and stated that he had
recorded it by going in the I.C.U. Ward of
the hospital where the deceased was under
treatment. It is also stated by the PW-5 that
before and after the dying-declaration, the
doctor had appended the certificate of
fitness and the injured/deceased was in a fit
mental state to give the dying-declaration
and during recording of dying-declaration
also she remained in a fit state of mind
hence dying-declaration is reliable and
learned trial court has not committed any
error in acting upon the dying-declaration.
Hence, there is no illegality or infirmity in
the impugned judgment which calls for
interference by this Court.

11. The entire evidence goes to show
that the three witnesses of fact are produced
by prosecution namely PW-1 to 3 but
nobody has supported the prosecution case.
All the aforesaid witnesses have turned
hostile but the testimony of hostile
witnesses cannot be brushed aside. The
testimony of the hostile witnesses can be
relied upon to the extent it supports the
prosecution case. Needless to say that the
testimony of hostile witnesses should be
scrutinized
meticulously
and
very
cautiously.

12. Hon'ble Apex Court in Koli
Lakhmanbhai Chandabhai vs. State of
Gujarat [1999 (8) SCC 624], has held that
evidence of hostile witness can be relied
upon to the extent it supports the version of
prosecution and it is not necessary that it
should be relied upon or rejected as a
whole. It is settled law that evidence of
hostile witness also can be relied upon to
the extent to which it supports the
prosecution version. Evidence of such
witness cannot be treated as washed off the
record. It remains admissible in the trial
and there is no legal bar to base his
conviction
upon
his
testimony
if
corroborated by other reliable evidence.

13. In Ramesh Harijan vs. State of
U.P. [2012 (5) SCC 777], the Hon'ble Apex
Court has also held that it is settled legal
position that the evidence of a prosecution
witness cannot be rejected in toto merely
because the prosecution chose to treat him
as hostile and cross-examined him. The
evidence of such witness cannot be treated
as effaced or washed off the record
altogether.

14. In State of U.P. vs. Ramesh
Prasad Misra and another [1996 AIR
(Supreme Court) 2766], the Hon'ble Apex
Court held that evidence of a hostile
witnesses would not be totally rejected if
spoken in favour of the prosecution or the
accused but required to be subjected to
close scrutiny and that portion of the
evidence which is consistent with the case
of the prosecution or defence can be relied
upon. Thus, the law can be summarized to
the effect that evidence of a hostile witness
cannot be discarded as a whole, and
relevant part thereof, which are admissible
in law, can be used by prosecution or the
defence.

15. Learned trial court has relied on
the dying-declaration made by the deceased
and entire impugned judgment is based on
the
evidence
which
is
the
dying-
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration.
Dying-declaration
is
very
important piece of evidence.

16. Learned counsel for the appellant
has argued that dying declaration is doubtful
and not corroborated by witnesses of fact,
hence, it cannot be the sole basis of
conviction.
Legal
position
of
dying
declaration to be the sole basis of conviction
is that it can be done so if it is not tutored,
made voluntarily and is wholly reliable. In
this regard, Hon'ble Apex Court has
summarized
the
law
regarding
dying
declaration in Lakhan vs. State of Madhya
Pradesh [(2010) 8 Supreme Court Cases
514], in this case, Hon'ble Apex Court held
that the doctrine of dying declaration is
enshrined in the legal maxim nemo moriturus
praesumitur mentire, 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 Evidence Act,
1872, as an exception to the general rule
contained in Section 60 of Evidence Act,
which provides that oral evidence in all cases
must be directed, 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.

17. The law on the issue of dying
declaration can be summarized to the effect
that in case the court comes to the
conclusion that the dying declaration is true
and reliable, has been recorded by a person
at a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made under
any tutoring/duress/prompting; it can be the
sole basis for recording conviction. In such
an eventuality no corroboration is required.
It is also held by Hon'ble Apex Court in the
aforesaid case, that a dying declaration
recorded by a competent Magistrate would
stand on a much higher footing than the
declaration recorded by office 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.

18. In the wake of aforesaid
judgments of Lakhan (supra), dying
declaraion cannot be disbelived, if it
inspires confidence. On reliability of dying
declaration and acting on it without
corroboration, Hon'ble Apex Court held in
Krishan vs. State of Haryana [(2013) 3
Supreme Court Cases 280] that it is not an
absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused. Where the dying
declaration is true and correct, the attendant
circumstances show it to be reliable and it
has been recorded in accordance with law,
the deceased made the dying declaration of
her own accord and upon due certification
by the doctor with regard to the state of
mind and body, then it may not be
necessary for the court to look for
corroboration. In such cases, the dying
declaration alone can form the basis for the
conviction of the accused. Hence, in order
to pass the test reliability, a dying
declaration has to be subjected to a very
close scrutiny, keeping in view the fact that
the statement has been made in the absence
of the accused, who had no opportunity of
testing the veracity of the statement by
cross-examination. But once, the court has
come to the conclusion that the dying
declaration was the truthful version as to
the circumstance of the death and the
assailants of the victim, there is no question
of further corroboration.

19. In Ramilaben Hasmukhbhai
Khristi vs. State of Gujarat, [(2002) 7 SCC
12 All. Smt. Kiran & Anr. Vs. State of U.P.
1009
56], the Hon'ble Apex Court held that under
the law, dying declaration can form the sole
basis of conviction, if it is free from any
kind of doubt and it has been recorded in
the manner as provided under the law. It
may not be necessary to look for
corroboration of the dying declaration. As
envisaged, a dying declaration is generally
to be recorded by an Executive Magistrate
with the certificate of a medical doctor
about the mental fitness of the declarant to
make the statement. It may be in the from
of question and answer and the answers be
written in the words of the person making
the declaration. But the court cannot be too
technical and in substance if it feels
convinced about the trustworthiness of the
statement which may inspire confidence
such a dying declaration can be acted upon
without any corroboration.

20. From the above case laws, it
clearly emerges that it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused when such dying declaration is
true, reliable and has been recorded in
accordance with established practice and
principles and if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity.

21.

The
dying-declaration
of
injured/deceased was recorded by PW-5
Laxmi Shankar Singh, Additional District
Magistrate, Bareilly who has entered the
witness box and proved the dyingdeclaration. PW-5 is an independent
witness hence his testimony can be
believed. Moreover, PW-5 has deposed that
on 27.11.2013, he was posted as Additional
City Magistrate-I Bareilly and he recorded
the dying-declaration in I.C.U. Ward of the
hospital. This witness has also stated that
doctor of the hospital appended the
certificate of mental fitness of the injured
Rajbeti.
After
recording
the
dyingdeclaration, it was read over to the injured
who verified it and put her thumb
impression. In cross-examination, PW-5
has stated that he had recorded the dyingdeclaration after being satisfied with regard
to the state of mind of the injured with the
consent of the doctor who was treating her.

22. In such a situation, the hostility of
the witnesses of fact cannot demolish the
value
and
reliability
of
the
dyingdeclaration of the deceased which has been
proved by the prosecution in accordance
with law and is a truthful version of the
incident
that
occurred
and
the
circumstances leading to her death but we
find that dying-declaration no where says
that appellant Smt.Kiran had any role in
setting the deceased ablazed rather it is
stated by injured/deceased that as soon as
she slept at about 10:00 p.m., Anil, Suraj
and Govind all sons of Jagdish R/o
Mohanpura entered her house and ignited
fire by match-stick after pouring the
kerosene oil on her. It is specifically stated
that the daughter-in-law (appellant Smt.
Kiran) did not come out of her room even
on calling. Further, it is made clear in
dying-declaration that aforesaid all the
three ran away with daughter-in-law after
turning her hence deceased nowhere says in
the dying-declaration that appellant Smt.
Kiran was having any role in either pouring
kerosene oil on her or igniting of fire rather
it was made clear by the deceased that at
the time of the said occurrence, appellant
Smt. Kiran was sleeping in her room and
she did not come out at the time of
occurrence hence we fail to understand
how the learned trial court has convicted
the appellant Smt. Kiran only on the basis
of fact/evidence that she ran away from the
house after the occurrence. If somebody
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
runs away from the house, it does not mean
that he has committed offence specially
with the deceased even if the dyingdeclaration does not assign any role to him.
Hence in our opinion, the appellant Smt.
Kiran has been wrongly convicted and
sentenced by trial court and no charge has
been proved against her.

23. As far as role of other appellant
Anil is concerned, there is absolutely clear
allegation made in dying-declaration. The
role of pouring the kerosene oil on the
deceased and ignition of fire by the matchstick is assigned to the appellant Anil as
discussed above. The dying-declaration is
found wholly reliable. As far as role of
appellant Anil is concerned, he has been
convicted by the learned trial court and
awarded sentence for life imprisonment
under Section 304 I.P.C. Which is too harsh
and severe. Sentence should be awarded in
proportion to the crime.

24. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
rehabilitary & reformative aspects in
sentencing it has been observed by the
Supreme Court:

"Crime is a pathological aberration.
The criminal can ordinarily be redeemed
and the state has to rehabilitate rather than
avenge. The sub-culture that leads to antesocial behaviour has to be countered not by
undue cruelty but by reculturization.
Therefore, the focus of interest in penology
in the individual and the goal is salvaging
him for the society. The infliction of harsh
and savage punishment is thus a relic of
past and regressive times. The human today
vies sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

25. 'Proper Sentence' was explained in
Deo Narain Mandal Vs. State of UP
[(2004) 7 SCC 257] by observing that
Sentence should not be either excessively
harsh
or
ridiculously
low.
While
determining the quantum of sentence, the
court should bear in mind the 'principle of
proportionality'. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

26. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme Court
referred the judgments in Jameel vs State
of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC
441], and Raj Bala vs State of Haryana,
[(2016) 1 SCC 463] and has reiterated that,
in operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
12 All. Smt. Kiran & Anr. Vs. State of U.P.
1011
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

27. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

28. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

29. Learned A.G.A. admitted the fact
that the appellant is in jail for more than 8
and a half years without remission. Hence,
we modify and reduce the sentence awarded
to the appellant-Anil under Section 304 IPC
from life imprisonment to the period already
undergone. Sentence of fine and default shall
remain intact. Sentence under Section 120-B
IPC is also reduced to the period already
undergone. Sentence under Section 452 IPC
has already been undergone by the appellant
Anil.

30. Conviction and sentence against
appellant Smt. Kiran under Sections 304/34
and 120-B I.P.C. is hereby set aside and she
is acquitted of all the charges framed
against her.

31. The appeal is, accordingly, partly
allowed.

32. Appellant-Anil be set free
forthwith if he is not wanted in any other
case. Personal bond of appellant Smt. Kiran
is cancelled and sureties are discharged.

33. Lower court record be transmitted
back to the court concerned.
----------
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 12 ILRA 1012
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 2964 of 2014
with
Criminal Appeal No. 2965 of 2014

Pawan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sanjay Singh, Sri Amrendra Nath Rai, Sri
Manoj Kumar Srivastava, Sri Pradeep Saxena, Sri
Sandeep Kumar Rai, Sri Shams Uz Zaman

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1972-
Section 154- Evidence of a hostile witness
cannot be discarded as a whole, and
relevant
part
thereof,
which
are
admissible in law, can be used by
prosecution or the defence.

Settled law that the part of the testimony of a
hostile witness which is relevant and admissible
can be used.

Indian Evidence Act, 1972 - Section 32-
Dying Declaration- In case the court
comes to the conclusion that the dying
declaration is true and reliable, has been
recorded by a person at a time when the
deceased was fit physically and mentally
to make the declaration and it has not
been
made
under
any
tutoring/duress/prompting; it can be the
sole basis for recording conviction. In
such an eventuality no corroboration is
required. In order to pass the test
reliability, a dying declaration has to be
subjected to a very close scrutiny, keeping
in view the fact that the statement has
been made in the absence of the accused,
who had no opportunity of testing the
veracity of the statement by crossexamination-The hostility of the witnesses
of fact cannot demolish the value and
reliability of the dying-declaration of the
deceased which has been proved by the
prosecution in accordance with law and is
a truthful version of the incident that
occurred and the circumstances leading to
her death. It is admitted fact that
deceased survive for nine days after the
date of occurrence, therefore, truthfulness
of the dying declaration can further be
evaluated from the fact that she was in fit
condition to make the statement at the
relevant time and in dying declaration she
had not unnecessarily involved other
family members of accused-appellant.

Notwithstanding the hostility of the prosecution
witnesses dying declaration can be solely relied
upon for convicting the accused, without
seeking further corroboration, where the dying
declaration is found to be truthful, legally
admissible and inspires the confidence of the
Court.

Doctrine of Proportionality- Keeping in
view criminal jurisprudence in our country
which is reformative and corrective and
not retributive, this Court considers that
no accused person is incapable of being
reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to
bring
them
in
the
social
stream.
'Reformative theory of punishment' is to
be adopted and for that reason, it is
necessary to impose punishment keeping
in view the 'doctrine of proportionality'.

As the judicial trend in our country is
reformative and not retributive hence the period
of incarceration undergone by the accused
would be a relevant factor in imposing the
punishment.

Criminal Appeal partly allowed. (E-3)
(Para 18, 21, 23, 25, 26, 27, 28, 34)

Case Law/ Judgements relied upon:-