Judgment Harjit Singh Bedi, J. 1. These appeals arise out of the following facts :- Sneh Lata (since deceased) had been married to Kuldip Kumar accused about 16- 17 years prior to the date of incident. On 9.9.1991, information was received from the Civil Hospital, Jalandhar that she had been admitted to the hospital with burn injuries in the early hours. On this ASI Darbari Lal (PW- 11) along with several other police officials and Sh. K.C. Anand (PW-6), an Executive Magistrate visited the hospital whereafter the latter recorded her statement (Exh. PR) in which she stated that at about 3.00 a.m. she had sprinkled kerosene oil on her body and set herself on fire as her husband Kuldip Kumar often till-treated and insulted her and compelled her to make demands of money from her brothers and to have sexual intercourse with other persons against her will and that she was ending her life on that account. On the basis of this statement, an FIR, Exh. PW11/E was registered. Sneh Lata died on 12.9.1991. During the course of the investigation, Kuldip Kumar, Sneh Latas husband and Bimal Kumar, his friend and partner in business, were arrested and whereas Kuldip Kumar was charged under Sections 306/498-A of the Indian Penal Code, the latter was charged for an offence punishable under Section 376 as well and as they pleaded not guilty, were brought to trial. 2 In support of its case, the prosecution inter alia relied on the evidence of PW-3 Vijay Kumar and PW-7 Rajan Kumar, brothers of the deceased, who deposed that their sister had been unhappy as her husband was a drunkard and often remained under the influence of liquor and compelled her to seek financial help from them and on several occasions they had in fact given money to her. They further stated that at about 8.00/8.30 p.m. on 8.9.1991, their nephews, namely, Jugnu and Lucky (sons of Kuldip Kumar and Sneh Lata) had rushed to them in panic and informed them that their father was dead drunk and was quarrelling with their mother but they had told the boys to go home and that they would visit them the next morning but at about 3.30 a.m. Vicky, the third son of the couple, had come to their house and informed them that their mother was being beaten by their father and that they accordingly rushed to Kuldip Kumars house and as they reached near the house, they had seen Bimal Kumar running away and had found Sneh Lata lying with serious burn injuries and that she had been removed to the hospital by them and her husband, who had slipped away after a short while. They also corroborated the story with regard to the recording of the dying declaration. Rajan Kumar (PW-7) further deposed that Sneh Lata had before her death told him that Kuldip Kumar, who was completely drunk had compelled her to have sexual intercourse with Billa alias Bimal Kumar and as she had felt disgusted, she had decided to end her life. Reliance was also placed on the statement of PW-5 Dr. Harleen Kaur, who had conducted the medico-legal examination of Sneh Lata at 12.15 p.m. on 10.9.1991 and had found her in a serious condition; PW-13 Dr. Uma Singal, who had conducted the post-mortem examination on the dead body and opined that the cause of death was shock caused due to extensive burns; PW-4 Dr. Surinder Kumar, who had conducted the medico-legal examination of Kuldip Kumar and Bimal Kumar and had found 8 and 2 injuries respectively on their persons and opined that there was nothing to suggest that Bimal Kumar was not capable of performing sexual intercourse; PW-6 Sh. K.C. Anand, the Executive Magistrate, who had recorded the dying declaration (Exh. PR) on the application (Exh. PQ) as per the directions given by the Additional District Magistrate, Jalandhar; and PW-11 ASI Darbari Lal, the Investigating Officer, who deposed to the various steps taken in the course of the investigation. 3. The prosecution case was then put to the accused and their statements recorded under Section 313 of the Code of Criminal Procedure. PQ) as per the directions given by the Additional District Magistrate, Jalandhar; and PW-11 ASI Darbari Lal, the Investigating Officer, who deposed to the various steps taken in the course of the investigation. 3. The prosecution case was then put to the accused and their statements recorded under Section 313 of the Code of Criminal Procedure. Kuldip Kumar, while admitting that he had been married to Sneh Lata and that three sons had been born to them, denied the allegation that he was a drunkard or had ever compelled her to have sexual intercourse with Bimal Kumar. He further stated that they had lived a cordial and happy marred life but after a fire in the year 1984 had destroyed his factory, she had become mentally disturbed and had on that account been treated by several doctors including Dr. Jaswant Singh, Professor and Head of the Psychiatric Department, Medical College, Faridkot. He further stated that his brothers-in-law, Vijay Kumar and Rajan Kumar had also started the business of rubber grinding and as he had good experience in the field, he had helped them out but when he had asked for some remuneration, they had quarrelled with him and that he had thereafter started working with Bimal Kumar, who too had a similar business. He further stated that on 8.9.1991, Sneh Lata had been sleeping with her son when he had woken up on hearing her shrieks and had seen her on fire and that he had tried to extinguish the flames and thereafter sent information to his brothers-in-law through his sons, who had subsequently manoeuvred the case against him. Bimal Kumar also denied the allegations levelled against him and stated that he was a happily married man with two children and that his wife was working as a Senior Lecturer and he and Kuldip Kumar were known to each other being in similar businesses and that Kuldip Kumars factory had been destroyed in 1984 after which they had got together and had done well in business. In defence they examined several witnesses including Pran Nath Sharma (DW-1) Ex. Divisional Fire Officer, who proved the certificate, Exh. DW1/A, to the effect that a fire had engulfed the premises of M/s Kuldip Rubber Industries and that the fire brigade had reached the spot and extinguished the fire; and Dr. In defence they examined several witnesses including Pran Nath Sharma (DW-1) Ex. Divisional Fire Officer, who proved the certificate, Exh. DW1/A, to the effect that a fire had engulfed the premises of M/s Kuldip Rubber Industries and that the fire brigade had reached the spot and extinguished the fire; and Dr. Jaswant Singh (DW-2), Professor and Head of Psychiatric Department, who proved the medical prescriptions, Exhs. DW2/A and DW2/B, but stated that it was not possible for him to give the details of the ailment as no such entry had been made therein though it appeared that the medicines prescribed were for the treatment of Psychosis and that Sneh Lata had visited the hospital on 11.8.1989, 26.2.1991 and 10.3.1991; Vicky son of Sneh Lata and Kuldip Kumar (DW-4), who though had been cited as a prosecution witness had been given up as having been won over, who too stated to the mental condition of his mother and that the relations between his father and his uncles Vijay Kumar and Rajan Kumar were not cordial and further that their mother had not been in a position to speak after the incident and that at 3.30 a.m. he had seen that his mother was on fire and the fire had been extinguished by his father. He denied that he or any of his brothers had gone to inform their uncles at night after the quarrel between their parents and stated that they had in fact received the information of the incident at about 10.00 a.m. 4. The trial Court in its judgment dated 24.4.1993 observed that the evidence of Vijay Kumar (PW-3) and Rajan Kumar (PW-7) was liable to be accepted and that after Sneh Latas death on 12.9.1991, her statement (Exh. PR) was to be treated as a dying declaration. The Court also observed that Dr. Surinder Kumar (PW-4) had sent information with regard to Sneh Latas admission in the hospital at about 5.15 a.m. and that thereafter ASI Darbari Lal (PW-11) had secured the services of Sh K.C. Anand, the Executive Magistrate and the dying declaration had been formally recorded and on that basis, and FIR had been registered against the two accused. The trial Court also observed that the dying declaration inspired full confidence and merely because it had not been recorded in a question-answer form could not be reason to doubt its veracity. The trial Court also observed that the dying declaration inspired full confidence and merely because it had not been recorded in a question-answer form could not be reason to doubt its veracity. The Court also found that the defence story that Kuldip Kumars factory had been burnt on 26.5.1984 had also not been proved as the certificate issued by Pran Nath Sharma (DW-1) did not indicate the date or the basis on which it had been issued. Likewise the evidence of Dr. Jaswant Singh (DW-2) was also rejected as the prescription slip and the OPD register in which they had been entered, did not reveal the details of the disease from which the deceased had been suffering and it was also not clear that Sneh Lata had been fully cured after her last visit to the hospital i.e. on 10.3.1991. The evidence of Vicky (DW-4) was also rejected on the ground that having lost his mother, he had thought it prudent to save his father as it was he who would henceforth have to look after him and his brothers. The Court accordingly convicted Kuldip Kumar accused under Sections 306/498-A of the Indian Penal Code whereas Bimal Kumar accused was convicted under Sections 306 and 376 thereof. They were accordingly sentenced as under :- Kuldip Kumar U/s 306 IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further rigorous imprisonment for one year. U/s 498-A IPC to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment for one year. Bimal Kumar U/s 306 IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further rigorous imprisonment for one year. U/s 376 IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further rigorous imprisonment for one year. 5 The sentence were, however, ordered to run concurrently. 6. Three appeals have been filed against the judgment of the learned trial Court; Crl. Appeals No. 149-SB and 153-SB of 1993 filed by Bimal Kumar and Kuldip Kumar respectively challenging their conviction whereas Cr. 1000/- and in default of payment of fine to undergo further rigorous imprisonment for one year. 5 The sentence were, however, ordered to run concurrently. 6. Three appeals have been filed against the judgment of the learned trial Court; Crl. Appeals No. 149-SB and 153-SB of 1993 filed by Bimal Kumar and Kuldip Kumar respectively challenging their conviction whereas Cr. Appeal No. 275-SB of 1993 has been filed by the State of Punjab seeking an enhancement of the sentence of both the appellants. All these matters are being disposed of by this judgment. 7. Mr. S.C. Sibal, the learned Senior Counsel for the appellants, has argued that the prosecution story suffered from glaring infirmities and, in particular, there was no evidence to show that Sneh Lata had been in a fit condition to make a dying declaration. It has also been pleaded that if the dying declaration was excluding from the evidence, there was no evidence to connect the appellants with the offence as the statement of Vijay Kumar (PW-3) and Rajan Kumar (PW-7), the brothers of the deceased, could not be believed as they had a clear animus against Kuldip Kumar. It has also been pleaded that no offence under Section 306 IPC was made out against Kuldip Kumar and that there was no evidence to suggest that Bimal Kumar had been guilty of committing rape and as such, the very basis of the prosecution story was lacking. It has finally been argued that the defence version was in fact the correct one and that the couple had been living happily and the fire, which had burnt Kuldip Kumars factory in the year 1984 had led to a mental disturbance in Sneh Lata, which had compelled her to take treatment from Dr. Jaswant Singh (DW-2) and it was her depression, which had driven her to suicide. 8. On the other had, Mr. Jayender S. Chandail, the learned State counsel has, however, supported the judgment of the trial Court on all counts. 9. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record very carefully. 10. As would be evident, the primary evidence is the dying declaration made by Sneh Lata. This dying declaration had been recorded by Sh. K.C. Anand, Executive Magistrate on the directions of the Additional Deputy Commissioner, Jalandhar. 9. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record very carefully. 10. As would be evident, the primary evidence is the dying declaration made by Sneh Lata. This dying declaration had been recorded by Sh. K.C. Anand, Executive Magistrate on the directions of the Additional Deputy Commissioner, Jalandhar. In this statement, she clearly spelt out the circumstances, which had led her to burn herself - that her husband was a drunkard, often misbehaved and demanded money from her and her brothers and had also compelled her to submit to sexual intercourse with Bimal Kumar. It is true, as he has been contended by Mr. Sibal, that the dying declaration has not been recorded in a question-answer form but to my mind, this omission could not by itself be a challenge to its validity. A dying declaration should preferably be recorded in a question-answer form but in case it is not so recorded but is otherwise held to be proved, no successful challenge can be made by the defence on this score. Sh. K.C. Anand deposed that he had obtained the opinion of the doctor before recording Sneh Latas statement and this fact has been corroborated by PW-10 Dr. Ashok Nanda, who had given the fitness certificate. It has also come in the evidence of Vijay Kumar and Rajan Kumar PWs that prior to the arrival of the Executive Magistrate, Sneh Lata had made a statement before them as well that she was fed up as her husband was a drunkard who misbehaved with her and even compelled her to have sexual relations with others including Bimal Kumar. They also stated that on several occasions efforts had been made by them to persuade Kuldip Kumar to mend his ways but with no success. They further stated that they had first been summoned through their nephews Jugnu and Lucky but they had told them that they would visit the next morning, but Vicky had come a little later and told them that his mother had put herself in fire after being beaten, on which they had rushed to her residence and removed her to the hospital accompanied by Kuldip Kumar. It is true that Vicky has appeared as DW-4 (though he had been cited as a prosecution witness but had been given up as having been won over) but Jugnu and Lucky did not appear as witnesses from either side. As one of the accused was their father and the mother having died, it would, to my mind, be difficult to expect that the children would support the prosecution. 11. Mr. Sibal has, however, argued with some emphasis that no case under Section 306 IPC was made out against Kuldip Kumar or under Section 376 IPC against Bimal Kumar. 12. I find no merit in this plea as well. It has come in the dying declaration as also in the evidence of Vijay Kumar (PW-3) and Rajan Kumar (PW-7) that Sneh Lata had been harassed for dowry and had been beaten by her husband during his bouts of drinking and also compelled her to have sexual intercourse with several other persons including Bimal Kumar. Section 306 IPC talks about abetment of suicide and sub-clause states that a person, who instigates to do that thing commits abetment. It is clear that it was the reprehensible behaviour of Kuldip Kumar, which had instigated Sneh Lata to commit suicide. 13. Section 375 defines rape and provides that if a woman is compelled to have sexual intercourse against her will, it would be sufficient to constitute the offence of rape. It has come in the evidence that Sneh Lata had been compelled by Kuldip Kumar against her will to have sexual relations with Bimal Kumar. The defence version that the relations of the couple were cordial and the misfortunes of the family started in the year 1984 after Kuldip Kumars factory had been burnt is without basis as there is no evidence to show as to when or how the factory had been burnt or as to whether it had in fact been burnt. The evidence of Pran Nath (DW-1) is clearly not believable. Likewise the version given by Dr. Jaswant Singh (DW-2) also does not prove the version that Sneh Lata was suffering from any mental disease or that on the date in question she had been suffering from depression. The prescription slips and the OPD register produced by Dr. Jaswant Singh do not prove this question. Now I take the State appeal. 14. It has been argued by Mr. The prescription slips and the OPD register produced by Dr. Jaswant Singh do not prove this question. Now I take the State appeal. 14. It has been argued by Mr. Chandail that the offence under Section 376 IPC provides a minimum sentence of seven years though a lesser sentence in exceptional cases can also be awarded and as a five years sentence has been imposed on Bimal Kumar and no reason for giving the lesser term had been given by the learned trial Court, the State appeal ought to be succeed. 15. Mr. Chandail appears to be right in his argument but I find that no notice has been given to the accused-respondent in the State appeal as the order made on 16.9.1993 reads as under:- "To be heard with Crl. Appeal Nos. 149-SB and 155-SB of 1993." 16. In this view of the matter, I would not, at this stage, interfere on the quantum of sentence as well. 17. All the appeals are accordingly dismissed.