# Sonu v. State of U.P. Opp. Party

- **Citation:** (2022) 10 ILRA 953
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-01
- **Case number:** Criminal Appeal No. 726 of 2022
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonu-v-state-of-u-p-opp-party-47905
- **Pages:** 9

## Headnote

Law-
Indian
Evidence
Act,
1872- Section 32-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- 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.

Where the dying declaration is found to be
true and reliable and has been recorded by a
magistrate then the same requires no further
corroboration and conviction can be secured
solely on the basis of the dying declaration.

Indian Penal Code, 1860- Section 304-B-
Section 304 Part- I- 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- Perusal
of record goes to show that motive is
absent
for
causing
death
of
the
deceased by the appellant as it is
evident from the statement of P.W.1 and
P.W.3. The allegation of demand of
dowry was also not proved by the
prosecution as P.W.2 mother of the
deceased
in
her
statement
herself
admitted that the deceased never made
any complaint about her husband or
about his family members. Therefore,
only on the basis of dying declaration,
learned trial court has awarded very
harsh and severe punishment, which is
life imprisonment-Sentence is reduced
to the period of 10 years under Section
304 part-I of I.P.C. Fine imposed is
reduced to Rs.5,000/- and sentence in
default
payment
of
fine
is
also
maintained.

Settled law that the judicial trend in our Country
is reformative and not retributive hence
punishment awarded should be proportionate
and undue harshness has to be avoided. As
motive has not been proved by the prosecution,
the deceased has died after four days of the
occurrence and the intention and knowledge
was present that the act was likely to cause
death of the deceased, hence the offence would
954 INDIAN LAW REPORTS ALLAHABAD SERIES
come within the purview of Section 304 Part - I
of IPC. (Para 18, 19, 21, 29, 31, 32)

Criminal Appeal partly allowed. (E-3)

Judgements/Case law relied upon:-

## Text

10 All. Sonu Vs. State of U.P.
953
their sentences as have been awarded by
the trial court and modified by this Court
respectively.

78. Let a copy of this judgment along
with lower court record be transmitted to
the trial court forthwith for necessary
information and compliance.
----------
(2022) 10 ILRA 953
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 726 of 2022

Sonu ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri
D.S.
Pandey,
Sri
Dharmendra
Kumar
Chaubey, Sri Mahendra Kumar Yadav, Sri Namit
Srivastava, Sri Piyush Shukla

Counsel for the Respondents:
Govt. Adv.

Criminal
Law-
Indian
Evidence
Act,
1872- Section 32-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- 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.

Where the dying declaration is found to be
true and reliable and has been recorded by a
magistrate then the same requires no further
corroboration and conviction can be secured
solely on the basis of the dying declaration.

Indian Penal Code, 1860- Section 304-B-
Section 304 Part- I- 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- Perusal
of record goes to show that motive is
absent
for
causing
death
of
the
deceased by the appellant as it is
evident from the statement of P.W.1 and
P.W.3. The allegation of demand of
dowry was also not proved by the
prosecution as P.W.2 mother of the
deceased
in
her
statement
herself
admitted that the deceased never made
any complaint about her husband or
about his family members. Therefore,
only on the basis of dying declaration,
learned trial court has awarded very
harsh and severe punishment, which is
life imprisonment-Sentence is reduced
to the period of 10 years under Section
304 part-I of I.P.C. Fine imposed is
reduced to Rs.5,000/- and sentence in
default
payment
of
fine
is
also
maintained.

Settled law that the judicial trend in our Country
is reformative and not retributive hence
punishment awarded should be proportionate
and undue harshness has to be avoided. As
motive has not been proved by the prosecution,
the deceased has died after four days of the
occurrence and the intention and knowledge
was present that the act was likely to cause
death of the deceased, hence the offence would
954 INDIAN LAW REPORTS ALLAHABAD SERIES
come within the purview of Section 304 Part - I
of IPC. (Para 18, 19, 21, 29, 31, 32)

Criminal Appeal partly allowed. (E-3)

Judgements/Case law relied upon:-

1. Khokan @ Khokhan Vishwas Vs St. of
Chhattis. 2021 0 Supreme (SC) 73

2. St. of U.P Vs Subhash @ Pappu 2022 0
Supreme (SC) 260

3. Smt. Sudha & anr. Vs St. of U.P. 2021 0
Supreme (All) 1220

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

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

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

7. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926

8. Deo Narain Mandal Vs St. of U.P. (2004) 7
SCC 257

9. Ravada Sasikala Vs St. of A.P. AIR 2017 SC
1166

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. The appeal has been preferred by
the appellant- Sonu against the judgment
and order dated 11.02.2015, passed by
learned Additional District and Sessions
Judge, Fast Track Court, Gautam Budh
Nagar in Session Trail No. 144 of 2012
(State of UP vs. Sonu and another), arising
out of Case Crime No. 581 of 2011, under
Sections 498-A, 304B Indian Penal Code,
1860 (in short ''I.P.C.') and Section 3/4 of
Dowry Prohibition Act, Police Station-
Dadri,
District
Gautam
Budh
Nagar
whereby the appellant is convicted and
sentenced for the offence under Section 302
I.P.C. for life imprisonment with a fine of
Rs.25,000/- and in default of payment of
fine, further imprisonment for one year.
Accused Krishnapal Sharma was acquitted
by the Court below, therefore this appeal
has been preferred only for appellant-
Sonu.

2. Brief facts of the case giving rise to
this appeal are that a written report was
submitted by complainant Brahm Deo
(father of the deceased) at Police Station
Dadri, District Gautam Budh Nagar with
the averments that marriage of his daughter
Priyanka was solemnized with accused-
Sonu on 14.7.2010. He had given dowry as
per his capacity. After marriage accusedSonu and his family members demanded
additional dowry. It is further averred that
on 07.11.2011, appellant- Sonu and his
family members poured kerosene on his
daughter and set her ablaze. It is a fact that
during treatment the deceased succumbed
to the injuries.

3. On the basis of above written
report, a case crime no.581 of 2011 was
registered at Police Station Dadri, under
Sections 498-A, 304-B I.P.C. and Section
3/4 of Dowry Prohibition Act. Investigation
was taken up by Circle Officer, who visited
the spot, prepared the site plan and
recorded the statement of witnesses. the
dying declaration of the deceased was also
recorded
on
10.11.2011.
F.I.R.
was
registered as written report on 24.11.201.
Inquest report was prepared and postmortem of the dead body was conduced
and its report was also prepared by doctor.
After completion of investigation, I.O.
submitted the charge sheet against accused-
Sonu and Krishnapal, who are the husband
and father-in-law of the deceased.
10 All. Sonu Vs. State of U.P.
955

4. Case being exclusively triable by
the court of session was committed to the
court of session for trial. The accused
pleaded not guilty and wanted to be tried.

5. Learned Sessions Court framed the
charges
against
accused-
Sonu
and
Krishnapal, under Section 3 r/w 4 of
Dowry Prohibition Act, under Section 498A and 304-B I.P.C. Charges were read over
to the accused, who denied the charges and
claimed to be tried.

6. To bring home the charges, the
prosecution examined following witnesses:

1.
Brahm
Deo
Dubey
P.W.-1
2.
Arti Devi
P.W.-2
3.
Neha
P.W.-3
4.
Dr.
Mohit
Gupta
P.W.-4
5.
Krishna Mohan
Uppu
P.W.-5
6.
Bheem Singh
P.W.-6
7.
Udayveer Singh
Pokhar
P.W.-7
8.
Brajesh Singh
P.W.-8

7. In support of oral evidence,
prosecution
submitted
following
documentary evidence, which were proved
by leading oral evidence and proving the
contents of the said documents.

1.
FIR
Ex.ka-11
2.
Written report
Ex.ka-1
3.
Dying Declaration
Ex. ka-6/10
4.
Medico-Legal Report Ex. ka-7
5.
Post-mortem report
Ex.ka-3
6.
Letter of Executive
Magistrate
Ex. ka-4
7.
Brief Facts
Ex. ka-5
8.
Death Summary
Ex. ka-8
9.
Death Report
Ex. ka-2
10 Death Report
Ex. ka-9
11. Charge-sheet (Mool)
Ex.ka-14
12. Site plan with index
Ex.ka-13

8. After completion of prosecution
evidence, the statement of accused was
recorded under Section 313 of Criminal
Procedure Code (Cr.P.C.), in which the
accused denied involvement in the crime
and deposed that false evidence was led
against accused. The accused examined
D.W-1 Smt. Vijay and D.W.-2 Radhey
Shyam in defence.

9. Heard Shri Dharmendra Kumar
Chaubey, learned counsel for the appellant
and Shri N.K. Srivastava, learned counsel
for the State. Record has been perused.

10. Leaned counsel for the appellant
has submitted that as per the F.I.R., father
of the appellant was also involved in the
offence but no evidence was found against
him, which goes to show that entire F.I.R.
is fabricated and false averments were
made by the complainant to rope in all the
family members of the appellant. The FIR
was also lodged much after the incidence.
Such type of delayed F.I.R. raises refutable
proof and is highly suspicious and cannot
be relied upon so as to convict the accused.
It is further submitted there are no specific
allegations against the appellant so far as
demand of dowry is concerned which is
also evident from the version of F.I.R.
956 INDIAN LAW REPORTS ALLAHABAD SERIES

11. It is next submitted by learned
counsel for the appellant that prosecution
has examined P.W.-1, Brahm Deo Dubey,
father of the deceased and P.W.-2 Arti Devi,
mother of the deceased, as a witnesses of
fact but their testimony has material
contradictions, which go to the root of the
case. Demand of additional dowry is not
proved, even the F.I.R. does not mention
any demand of any article as dowry on the
part of the appellant.

12. It is borne out from the record and
dying
declaration
that
deceased
was
hospitalised after the occurrence. The deceased
died after 7 days of the occurrence during the
course of treatment and therefore the conviction
of accused under section 302 of I.P.C. was not
warranted.

13. After the aforesaid arguments, learned
counsel for the appellant submits that he would
press the appeal only for quantum of sentence
and it is also submitted that learned trial court
has awarded very severe punishment of life
imprisonment while it is proved that there was
no torture either mental or physical on the part
of the accused-appellant, which is finding
returned by the court below.

14. It is further submitted that death of the
deceased was due to septicaemia and therefore
the punishment be converted from 302 to 304
Part-I in view of the recent decisions of Apex
Court in Khokan @ Khokhan Vishwas Vs.
State of Chhattisgarh 2021 0 Supreme (SC)
73, State of Uttar Pradesh Vs. Subhash Alias
Pappu 2022 0 Supreme (SC) 260 and Smt.
Sudha and Another Vs. State of U.P. 2021 0
Supreme (All) 1220 cited by learned counsel
for the appellant.

15. Learned A.G.A. for the State has
vehemently objected to the submissions of
learned counsel for the accused-appellant
and submitted that death of deceased had
taken place within 7 years of her marriage.
It is also submitted that even the death was
caused due to burn injuries which is
covered within the category of dowry
death. Learned trial court has rightly
convicted and sentenced the accusedappellant. Learned A.G.A. has submitted
that the court below has given cogent and
sufficient reasons for awarding punishment
of life imprisonment which does not
require any interference by this Court

16. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report, the
death was homicidal death. The evidence
and dying declaration are correlating each
other. The dying declaration is as follows :-

"1) What is your name ?

Priyanka Sharma

2) Age ?

25Yrs

3) Where do you live ?

Dadri, U.P.

4) How long were you married ?

Since 14th July, 2010

5) Do you have any children ?

8 month old child (Shaurya) and
pregnant for 2 months

6) name of your husband ?

Sonu Sharma

7) who do you live with ?

I live with my husband and in-laws

8)
What
happened
after
yours
marriage ?

First two months were good but latter
we started having quarrels. My, husband
started beating me as I opposed him from
having liquor. These quarrels became big
in course of time

9) How did the burning happen ?

On 07.11.11 at around 0800 pm I had
a quarrel with my husband. He beat me up
10 All. Sonu Vs. State of U.P.
957
very badly and took out oil from his bike
and poured over me. I tried to oppose but
he pushed me to the stove on which milk
was being boiled and I caught fire. My
sister (neha) and brother-in-law (bhumesh)
were in another room in the house. My
sister and brother-in-law thought that we
were only quarrelling but when I started
shouting they came and stopped the fire
with clothes and blankets."

17. 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.

18. 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.

19. Deceased survived for 7 days after
the
incident
took
place.
Her
dying
declaration was recorded by Krishna
Mohan Uppu, District Magistrate after
obtaining the certificate of medical fitness
from the concerned doctor. This dying
declaration was proved by PW-5, Krishna
Mohan Uppu, District Magistrate. These
witnesses have absolutely independent
witnesses. In the wake of aforesaid
judgments
of
Lakhan
(supra),
dying
declaration cannot be disbelieved, 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
958 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

20. In Ramilaben Hasmukhbhai
Khristi vs. State of Gujarat, [(2002) 7 SCC
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.

21. From the above precedents, 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.

22. In dying deceleration of the
deceased, it is also relevant to note that
deceased died after four days of recording it. It
means that she remains alive for four days
after making dying declaration, therefore,
truthfulness of dying declaration can further be
evaluated from the fact that she survived for
four days. After making it from which it can
reasonably be that inferred she was in a fit
mental condition to make the statement at the
relevant time.

23. In this regard, we have to analyse the
theory of punishment prevailing in India as to
whether the case would be one causing murder
or culpable homicide not amounting to
murder.

24. However, the question which falls
for our consideration is whether, on reappraisal
of the peculiar facts and circumstances of the
case, the conviction of the appellant under
Section 302 of I.P.C. of the Indian Penal Code
should be upheld or the conviction deserves to
be converted as punishment under Section 304
Part-I or Part-II of the Indian Penal Code. It
would be relevant to refer Section 299 of the
Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever
causes death by doing an act with the
intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

25. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
10 All. Sonu Vs. State of U.P.
959
Courts. The confusion is caused, if Courts
lose sight of the true scope and meaning of
the terms used by the legislature in these
sections and allow themselves to be drawn
into minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.C. The following comparative table will
be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A
person
commits
culpable homicide if
the act by which the
death is caused is
done-
Subject to certain
exceptions
culpable homicide
is murder if the act
by which the death
is caused is done.

INTENTION
(a) with the intention
of causing death; or
(1) with the intention
of causing death; or
(b) with the intention
of
causing
such
bodily injury as is
likely
to

cause
death; or
(2) with the intention
of
causing
such
bodily injury as the
offender knows to be
likely to cause the
death of the person
to whom the harm is
caused;
KNOWLEDGE
KNOWLEDGE
(c)
with
the
knowledge that the
act is likely to cause
death.
(4)
with
the
knowledge that the
act is so immediately
dangerous
that
it
must
in
all
probability
cause
death or such bodily
injury as is likely to
cause
death,
and
without any excuse
for incurring the risk
of causing death or
such injury as is
mentioned above.

26. 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."

27. '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
960 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

28. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme Court
referred the judgments in cases titled
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
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.

29. 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.

30. Since the learned counsel for the
appellant has not pressed the appeal on its
merit, however, after perusal of entire
evidence on record and judgment of the
trial court, we consider that the conviction
of the appellant requires to be upheld but
whether under section 304 part-I & 2 or
section 302 I.P.C. will have to be decided.

31. 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
10 All. State of U.P. Vs. Govind Pasi
961
by learned trial court for life term is 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.

32. Perusal of record goes to show
that motive is absent for causing death of
the deceased by the appellant as it is
evident from the statement of P.W.1 and
P.W.3. The allegation of demand of dowry
was also not proved by the prosecution as
P.W.2 mother of the deceased in her
statement
herself
admitted
that
the
deceased never made any complaint about
her husband or about his family members.
Therefore, only on the basis of dying
declaration, learned trial court has awarded
very harsh and severe punishment, which is
life imprisonment.

33.

Keeping
overall
facts
and
circumstances of this case, in our opinion,
ends of justice would be met if the sentence
is reduced to the period of 10 years under
Section 304 part-I of I.P.C. Fine imposed is
reduced to Rs.5,000/- and sentence in
default payment of fine is also maintained.

34. Accordingly, the appeal is partly
allowed, as modified above.

35. Record be sent to trial court
immediately.
----------
(2022) 10 ILRA 961
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.10.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.

Capital Case No. 1 of 2018
connected with
Crl. Appeal No. 1004 of 2018

State of U.P. ...Appellant
Versus
Govind Pasi ...Respondent

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondents:
Manish Bajpai

Criminal Law- Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- "Last
Seen Theory"- Prosecution proved last
seen evidence. The chain of circumstances
is also closely related and proves that the
victim was going to school and the
accused was near the field of Shri Pal and
when the deceased ''X' reached near the
field, the convicted appellant Govind Pasi
lifted her in her arms and moved towards
the filed. Thereafter, she was found dead
in the field of Shripal.

For proving the theory of last seeing the
deceased in the company as one of the relevant
links in the chain of circumstances, it has to be
proved by the prosecution that the time-gap
between the point of time when the accused
and the deceased were last seen alive and when
the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes
impossible.

Criminal Law- Indian Evidence Act, 1872-
Section 3 - It has been further emphasized
that if discrepancies in the depositions are
minor, that that witnesses contradict
themselves during their testimonies as
opposed
to
their
previous
police
statements what is important is that the
nature of contradictions.

Settled
law
that
minor
contradictions,
improvements
and
embellishments
in
the
testimony of the witnesses are to be ignored