HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.132 of 2004 Vikram Singh S/o Sri Nain Singh, R/o Selaquai P.S. Sahaspur. District Dehradun. ……Appellant Versus State ……Respondent Mr.Vinod Sharma, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. JUDGMENT Hon’ble J. C. S. Rawat, J. This is a criminal appeal preferred against the judgment and order dated 29.3.2004 passed by the learned Addl. Sessions Judge/F.T.C-VI, Dehradun in ST No. 56/2003, State Vs. Vikram Singh, whereby the learned Addl. Sessions Judge has convicted the accused-appellant for the offence punishable under Section 304-B IPC and sentenced him to undergo rigorous imprisonment for the period of ten years. 2. The case of the prosecution, in brief, is that on 04.2.2003, the complainant-Gulab Singh who is the father of the deceased-Seema scribed a report, which is said to have been given at the police station on 08.2.2003 and consequent thereupon, a case under Sections 498-A and 307 IPC was lodged against the accused-appellant. It has been alleged by the complainant-Gulab Singh in the report that on 4th March, 2002, marriage of the deceased-Seema was solemanized with the appellant in Dehradun but she was subjected to cruelty by her in-laws, as such, Gulab Singh brought her daughter i.e the deceased- Seema to his house. On 27.12.2002, the appellant came to the house of his father-in-law and persuaded his father-in-law regarding taking away the deceased to her matrimonial house on the condition that he would not harass or torture the deceased any further. He also gave in writing to the deceased to that effect. On 3rd Feb, 2003, the complainant came to know that her daughter i.e. the deceased-Seema has been burnt and she has been admitted in Doon Hospital, Dehradun. The deceased was then shifted to PGI, Chandigarh for better treatment, where her dying declaration was recorded on 7th Feb, 2003 by the Judicial Magistrate, Chandigarh. On 8th Feb, 2003, she died in PGI, Chandigarh. The said information was given to the police and consequently, the case was converted from the aforesaid sections to Section 304-B IPC. The matter was investigated by the police and eventually, chargesheet was submitted against the accused-appellant before the court. 3. After submission of the chargesheet, the trial court framed charge against the accused-appellant under Section 304-B IPC. The accused- appellant denied the charge levelled against them and claimed trial. 4. In order to prove its case, the prosecution examined Gulab Singh as PW1 who is the father of the deceased-Seema; Dr. Dalveer Singh as PW2 who had conducted the autopsy/postmortem of the dead body of the deceased-Seema; Kumari Gurwinder Kaur, Judicial Magistrate/Chandigarh as PW3 before whom dying declaration of the deceased was recorded; Const. Roshan Lal as PW4 who has proved the FIR (Ex.Ka.6) and G.D (Ex. Ka. 7); A.S.I Rajkumar as PW5; Dr. Raj Rajan as PW6 who proved the endorsement to the effect that the deceased was in a condition to give statement in regard to how she received the burn injuries and; Circle Officer-Asim Srivastava as PW7 who was the Investigating Officer of this case. 5. The accused-appellant was examined under Section 313 of the Criminal Procedure Code. The accused-appellant denied all the averments made in the evidence and challenged the varacity of the dying declaration made by the deceased soon before her death. The appellant further stated that his wife-the deceased was burnt due to her own act while she was boiling the milk on the stove and he was also not in the house at the time of the incident. The defence also examined Smt. Shashi Kala DW1 and Jawahar Singh DW2 in his defence to prove that the accused was not in his house at the time of the incident. 6. The learned trial court after appreciation of the evidence found the appellant guilty of the offence, and convicted and sentenced the appellant as mentioned above. 7. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 8. At the outset it needs to be mentioned that the learned counsel for the appellant is not challenging the propriety of the conviction order passed by the learned trial court, as the learned trial court has passed the conviction order on sound footing relying upon the dying declaration recorded in the PGI, Chandigarh by Kumari Gurwinder Kaur PW3, Judicial Magistrate/Chandigarh. Kumari Gurwinder Kaur PW3 has proved the dying declaration made by the deceased soon before her death. Dr. Raj Rajan PW6 who was on duty in the hospital, has given the endorsement to the effect that the deceased was able to give statement in regard to how she received the burn injuries and after this endorsement, dying declaration of the deceased was recorded. Dr. Raj Rajan PW6 has also proved that endorsement. It is settled position of law that dying declaration can be a basis for the sole conviction of the accused, if it is found credible, trustworthy and untutored. The trial court after going through the entire evidence, has found that the dying declaration of the deceased is credible and cogent. I have also gone through the entire dying declaration which is reproduced as under: iz”u% vkidks D;k dguk gS\ mRRkj % esjh 'kknh dks djhc ,d lky gks x;k gS esjk ?kjokyk eq>s cgqr /kedkrk jgrk Fkk vkSj dgrk Fkk fd eSa mldks ilUn uk gwaA og 'kjkc ihdj eq>s ekjrk ihVrk Fkk oks eq>s dgrk Fkk fd eSa ngst de ykbZ gwaA oks jkst yM+kbZ djrk Fkk vkSj dksbZ dke Hkh ugha djrk FkkA esjs eka&cki us cgqr ngst fn;k FkkA esjk ,d eghus dk yM+dk gSA 2-2-03 dks lqcg 11- 30 cts ds djhc mlus dqUMh yxkdj eq> ij feVVh dk rsy Mkyk vkSj vkXk yXkk nhA esjh lkl eq>s vLirky ys dj xbZA nsgjknwu esa bykt dk [kkl vPNk bUrtke Ukk Fkk blfy, eq>s ih th vkbZ yk;k x;kA esjs lkl llqj eq>s rax ugha djrA esjs ?kjokyk eq>s dgrk gS fd c;ku cny nsuk dguk LVkso QV x;k Fkk vkSj eSa ty xbZA iz'u% D;k vkidks dqN vkSj dguk gS\ mRrj % th ughaA 9. I have scrutinized the entire evidence of the prosecution and also perused the judgment of the Hon’ble Apex Court passed in the case of Vikas & Others Vs. State of Maharashtra 2008 (1) SCC (Cri) Page 486. I found that the conviction of the appellant is based on a sound footing as the learned trial court has given a detailed reasoning to this and I am completely in agreement with the findings recorded by the trial court. 10. The learned counsel for the appellant has not challenged the propriety of the conviction. He argued that the sentence of the appellant be reduced to a minimum sentence of seven years instead of ten years. It is pertinent to mention here that the father of the deceased has been declared hostile and he is not supporting the prosecution version. It is settled position of law that the sentence should commensurate with the offence. The lagislature in its wisdom has defined a minimum sentence of seven years in such cases where the offence is proved. I find that seven years imprisonment would serve the ends of justice. Hence, the sentence of the appellant is reduced from ten years to seven years as minimum, under Section 304-B of the IPC. 11. The appeal is partly allowed. The conviction of the appellant under Section 304-B IPC is maintained, however, the sentence awarded by the learned trial court is reduced to seven years instead of ten years under Section 304-B I.P.C. The impugned judgment of the trial court is modified to the above extent accordingly. 12. Let the lower court record be sent back to the court concerned. The compliance report be submitted within a period of three months. Dated 24.06.2008 V.K. (J.C.S. RAWAT, J.)