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2022 DIGILAW 1241 (ALL)

Bali Singh v. State of U. P.

2022-08-05

MANOJ MISRA, SAURABH SRIVASTAVA

body2022
JUDGMENT : 1. We have heard Sri Yogesh Kumar Srivastava for the appellant; Sri J.K. Upadhyay, learned AGA, for the State; and have perused the record. 2. This appeal is against the judgment and order dated 22.02.2008 passed by the Additional District and Sessions Judge, Court No.9, Ghaziabad in S.T. No.787 of 1999, arising out of case crime no.52 of 1999, P.S. Muradnagar, district Ghaziabad, whereby the appellant Bali Singh has been convicted and sentenced under Section 304 IPC to imprisonment for life and fine of Rs.3,000/- coupled with a default sentence of one year. INTRODUCTORY FACTS 3. A written report (Ex. Ka-3), signed by brother of the deceased, namely, Sunder (PW-5), was submitted at P.S. Muradnagar, district Ghaziabad on 17.02.1999 at 19.30 hrs, giving rise to case crime no. 52 of 1999, under section 308 IPC of which G D Entry No.42 (Ex. Ka-5) and Chik FIR (Ex. Ka-4) was prepared by PW-6. In the written report it was alleged that informant's sister Santosh was married to the appellant Bali Singh about 12 years ago; Bali Singh was addicted to liquor as a result whereof, her sister used to remain worried and for the last three years was staying with the informant; that 6-7 months before the incident, on insistence of mediators, informant's sister (the deceased) returned to her matrimonial home; that on 12.02.1999, at about 11.30 pm, the appellant in an inebriated state poured kerosene over informant's sister and set her ablaze; when she raised an alarm, her Devar Chatar Singh (PW-3) and Devrani Smt. Rajesh (PW-4) broke open the window of her room, saved her and got her admitted at M.M.G. Hospital, Ghaziabad, where she is under treatment. 4. On 17.02.1999, a dying declaration of Smt. Santosh was recorded by Om Pal Singh (PW-8), Naib Tehsildar. The dying declaration (Ex. Ka-5) recites that there was a fight between her and her husband; during that fight, her husband poured kerosene on her and set her ablaze; whereafter, the fire was doused by putting quilt over her; later, her Devar, mother-in-law and father-in-law brought her to the hospital. She stated that she was married 15 years ago and has two children. The fight between her and her husband was on account of consumption of liquor by her husband. 5. During the course of investigation, burnt quilt and Dari were lifted from her matrimonial home of which seizure memo (Ex. She stated that she was married 15 years ago and has two children. The fight between her and her husband was on account of consumption of liquor by her husband. 5. During the course of investigation, burnt quilt and Dari were lifted from her matrimonial home of which seizure memo (Ex. Ka-11) was prepared. The initial medical examination report of the victim (Ex. Ka-13), dated 13.02.1999, which was produced by PW-10 indicates that she was brought to the hospital by Atar Singh (to be read as Chatar Singh) son of Ratan at about 1.20 am on 13.02.1999 at M.M.G. Hospital. The injury report (Ex. Ka-13) recites: "superficial to deep burn over face, neck except forehead, and left face and both eyes. Superficial to deep burn on both lower extremities, front and back of chest, and abdomen. Superficial to deep burn on both lower extremities, pelvic region. Singeing of hair present. Peeling off skin present. Blisters present. Smell of kerosene coming from body. Mental condition confused and irritable. General condition low. Blood pressure 90/94. Pulse 100." 6. Santosh died at 10 am on 18.02.1999 in the district hospital, Ghaziabad of which information was sent to the police station concerned at 12.35 hrs.. Inquest was conducted at the hospital on 18.02.1999. It was completed by 15.00 hours and an inquest report (Ex. Ka-1) was prepared, which was witnessed by PW-1 amongst others. Autopsy was conducted at 5 pm on 18.02.1999. The autopsy report (Ex. Ka-2) prepared by Dr. Rajendra Prasad (PW-2) recites ante-mortem injuries as follows:- "Extensive superficial to deep burn all over body except scalp and forehead and lateral aspect of arm and forearm on both side". Cause of death mentioned in the autopsy report is septicaemia due to ante mortem burns. Internal examination of the cadaver revealed gravid uterus (male foetus present 18-20 weeks old). Consequent to the death of Santosh, the case was converted to an offence punishable under Section 304 IPC. 7. After investigation, charge sheet dated 09.04.1999 (Ex. Ka-12) was submitted by O.P. Singh Chauhan (PW-9). After taking cognisance on the charge sheet, the case was committed to the court of session. The trial court, on 21.10.1999, charged the appellant for offence punishable under Section 304 IPC. The appellant pleaded not guilty and claimed trial. PROSECUTION EVIDENCE 8. During the course of trial, the prosecution examined 10 witnesses. Their testimony, in brief, is as follows:- 9. After taking cognisance on the charge sheet, the case was committed to the court of session. The trial court, on 21.10.1999, charged the appellant for offence punishable under Section 304 IPC. The appellant pleaded not guilty and claimed trial. PROSECUTION EVIDENCE 8. During the course of trial, the prosecution examined 10 witnesses. Their testimony, in brief, is as follows:- 9. PW-1 - Tara Chand. He is a witness of the inquest proceeding. He proved the inquest report by identifying his signature thereon, which was marked Ex. Ka-1. 10. PW-2 - Dr. Rajendra Prasad-Autopsy Surgeon. He proved the autopsy report and confirmed the injuries recited therein. On the basis of his statement, the autopsy report was exhibited. 11. PW-3 - Chatar Singh-Devar of the deceased. He stated that the deceased was his elder brother Bali Singh's (the appellant) wife. He denied having witnessed the incident. He denied of making an attempt to douse the fire. He stated that in the night of the incident he was at his Sasural and is not aware as to how his Bhabhi (the deceased) got burnt. He stated that he is not aware as to who got her admitted in the hospital. At this stage, the witness was declared hostile by the prosecution and permission to cross examine him was granted. During cross examination, PW-3 denied that the appellant was addicted to liquor. He stated that he never saw him drinking. He stated that he arrived at his house two days after the incident when he came to know that Santosh (the deceased) was admitted in the hospital. He stated that the investigating officer had not recorded his statement. When confronted with his previous statement recorded under Section 161 CrPC, PW-3 stated that he did not give any such statement. He denied the suggestion that to save his brother he is lying. 12. PW-4 - Smt. Rajesh - Devrani of the deceased. She resiled from the prosecution case and stated that she was at her Maika (maternal home) with her husband since two days before the incident and she returned two days after the incident. PW-4 too, was declared hostile by the prosecution and permission to cross examine her was granted. During cross examination, she stated that her Jeth (the appellant) was not addicted to liquor and that she had never seen her Jeth having a fight with his wife. PW-4 too, was declared hostile by the prosecution and permission to cross examine her was granted. During cross examination, she stated that her Jeth (the appellant) was not addicted to liquor and that she had never seen her Jeth having a fight with his wife. On being confronted with her previous statement recorded under Section 161 CrPC, she stated that she never gave any such statement. 13. PW-5 - Sunder- brother of the deceased. He stated that the deceased was his elder sister and was married 16 years ago to the accused Bali Singh. Bali Singh never harassed his sister and never assaulted her under the influence of liquor. On 12.02.1999 Bali Singh did not ablaze her. However, he is not aware as to how she got burnt. PW-5 denied having dictated the written report, which was scribed by Krishna Pal, but admitted his signature on it. The written report was marked Ex. Ka-3. At this stage, the prosecution declared the witness hostile and sought permission to cross examine him, which was granted. During cross examination, the witness stated that he gave the written report on the suggestion of the police because he feared the police and, at that time, was under stress due to death of his sister. PW-5 stated that whenever Bali Singh had come to his house he never took liquor and that he never reported that Bali Singh was addicted to liquor. He also stated that his sister never complained about Bali Singh. On being confronted with his previous statement recorded under Section 161 CrPC, the witness denied having given any such statement. He denied the suggestion that he has colluded with the accused. 14. PW-6 - Rajveer Singh. He is the Chik maker of the written report and made its GD entry. He stated that the written report was submitted by Sunder (PW-5) on the basis of which, vide GD Entry No.42 at 19.30 hours on 17.02.1999 Case Crime No.52 of 1999, under Section 308 IPC, was registered. He proved the Chik FIR and GD entry as Ex. Ka-4 and Ex. Ka-5 respectively. During cross examination, he stated that he does not personally know the informant. 15. PW-7 - Virendra Singh. He is the constable who accompanied the police to the hospital on getting information about her death. He proved the Chik FIR and GD entry as Ex. Ka-4 and Ex. Ka-5 respectively. During cross examination, he stated that he does not personally know the informant. 15. PW-7 - Virendra Singh. He is the constable who accompanied the police to the hospital on getting information about her death. He stated that on getting information about death of the deceased from ward boy of the hospital, he along with Constable Om Singh arrived at district hospital Ghaziabad where they met Daroga O.P. Singh Chauhan (PW-9). PW-9 prepared the inquest report and the body and papers were handed over to him for autopsy. He did not allow anyone to touch the body till it was given to the autopsy surgeon at the Mortuary. 16. PW-8 - Ompal Singh, Naib Tehsildar- Executive Magistrate, who recorded the dying declaration of the deceased. PW-8 stated that on 17.02.1999 he was posted as Tehsildar at Tehsil Ghaziabad. On that day, he recorded the statement of Smt. Santosh wife of Bali Singh, aged about 25 years, who was a resident of village Bhovapur. He stated that the dying declaration was recorded by him in his own handwriting and signature. The dying declaration, which was kept in a sealed envelop, was opened in court and shown to him. PW-8 identified the document as the dying declaration recorded, written and signed by him. The same was marked Ex. Ka-5 and the envelop containing the dying declaration was marked material Ex.-1. He stated that the dying declaration carries thumb impression of the deceased, which was put by her in his presence after the dying declaration was recorded and read over to her. He stated that the declaration was recorded between 4.10 and 4.15 pm. Before recording the declaration, he had obtained permission of the then attending Emergency Medical Officer posted at M.M.G. District Hospital, Ghaziabad. He stated that the deceased was in a fit mental condition and was fully conscious when her declaration was recorded. He stated that after her statement was recorded, the same was sealed and the sealed envelop was sent to the Chief Judicial Magistrate, Ghaziabad. He stated that the envelop in which the dying declaration was sealed bears seal put by him. The envelop also bears his signature. The envelop sealed by him was also produced and marked material Ex.-2. He stated that after her statement was recorded, the same was sealed and the sealed envelop was sent to the Chief Judicial Magistrate, Ghaziabad. He stated that the envelop in which the dying declaration was sealed bears seal put by him. The envelop also bears his signature. The envelop sealed by him was also produced and marked material Ex.-2. During cross examination, PW-8 stated that he is not aware of the date when Smt. Santosh was admitted in the hospital. When he had noticed her, she must have been 70% burnt but she was in a position to speak. Her face was not burnt though rest of her body was burnt. He stated that before recording her statement he had obtained written permission of the doctor regarding her fitness. The written permission regarding her fitness was not obtained on a separate document but was taken on the document wherein the statement was recorded. He specifically stated that fitness certificate/permission was obtained before recording the statement. When permission to record the statement was endorsed on the paper, the paper was blank. He stated that this certificate/permission was endorsed on the left margin of the paper. On further questioning, PW-8 stated that at the time when he recorded the dying declaration, except him and the injured, no one else was present. However, when he had arrived to record the dying declaration one or two persons were there, but he does not know who they were. He stated that he does not know the deceased personally; that he himself got her thumb impression on Ex. Ka-5. He denied the suggestion that fingers and thumb of the deceased were burnt. He also denied the suggestion that thumb impression of the deceased was not obtained in his presence. He denied the suggestion that he recorded the declaration on the basis of information contained in the first information report and not by inquiring from the declarant. 17. PW-9 - O.P. Singh Chauhan- Investigating Officer. He stated that on 17.02.1999 he was posted at P.S. Muradnagar. The case was registered in his absence but the investigation was assigned to him. After obtaining necessary papers, he recorded the statement of the informant (Sunder) and of the GD/Chik maker. On 18.02.1999, he came to learn that the deceased had expired at 10 am. He proceeded to the spot, appointed panches and conducted inquest proceeding. The case was registered in his absence but the investigation was assigned to him. After obtaining necessary papers, he recorded the statement of the informant (Sunder) and of the GD/Chik maker. On 18.02.1999, he came to learn that the deceased had expired at 10 am. He proceeded to the spot, appointed panches and conducted inquest proceeding. He proved his signatures on the inquest report (Ex. Ka-1). He proved preparation of various papers for autopsy which were marked as Ex. Ka-6 to Ex. Ka-9. He stated that after the death of Santosh, the case was converted from Section 308 IPC to Section 304 IPC. On 19.02.1999, he inspected the spot and at the instructions of the informant prepared a site plan (Ex. Ka-10). From the spot, he recovered a quilt and a Dari as also a printed Dhoti which was sealed and a seizure memo thereof (Ex. Ka-11) was prepared. The recovered articles were produced in court and marked material Ex.1 and 2. On 20.02.1999, he arrested the appellant and recorded his statement. On 09.04.1999, he recorded the statement of Smt. Rajesh and Chatar Singh and also received copy of the dying declaration. After completing the investigation, he submitted charge sheet (Ex. Ka-12). During cross examination, PW-9 stated that the incident was of 12.02.1999 as per the written report lodged on 17.02.1999. On the day when the written report was lodged, he did not visit the hospital. He visited the hospital on 18.02.1999. When he visited the hospital, Santosh was already dead. He arrived at the hospital between 11 and 12 hours and thereafter the inquest was conducted. The deceased was fully burnt. He stated that on 19.02.1999 when he visited the place of occurrence, the house of the deceased was found open and no one was present there. Neighbours were around but they were not at the spot. Inspection was conducted at the instance of the informant. A cot was found in the room but the quilt (Material Ex. 1) and Dari (Material Ex.2) was lifted from the floor and not from the cot. He stated that he did not separately disclose in the site plan the place from where Dari and the quilt was lifted. On being questioned, whether the cot was burnt or not, PW-9 stated that he does not remember whether it was burnt. However, the cot was not seized. He stated that he did not separately disclose in the site plan the place from where Dari and the quilt was lifted. On being questioned, whether the cot was burnt or not, PW-9 stated that he does not remember whether it was burnt. However, the cot was not seized. He stated that in that room the other household articles were noticed but no electricity supply was noticed in that room. PW-9 denied the suggestion that the material exhibits 1 and 2 were not there since the date of the incident but were planted later. PW-9 denied the suggestion that he had not interrogated persons in the vicinity. He also denied the suggestion that without properly and fairly conducting the investigation he submitted the charge sheet. 18. PW-10 - Brijesh Kumar. He was employee of District Hospital Ghaziabad who produced the original record relating to medical examination of Smt. Santosh wife of Bali Singh on 13.2.1999. On production of the original record by him, photocopy of the medical examination report of the deceased dated 13.2.1999 was taken on record and marked Ex. Ka-13. During cross examination, by looking at Ex. Ka-13, PW-10 stated that it records that the deceased was burnt to the extent of 90%. He admitted that the original of the record was not prepared in his presence. Statement of the accused-appellant under section 313 CrPC 19. The incriminating circumstances appearing in the prosecution evidence were put to the appellant while recording his statement under Section 313 CrPC. The appellant though admitted that he was married to the deceased about 12 years before 12.2.1999 but denied the incriminating circumstances appearing in the prosecution evidence against him. He took no plea that the deceased did not suffer burn injuries or that she was not admitted in the Hospital on 13.02.1999 in connection therewith. He also did not dispute her death on 18.02.1999. He also did not take a specific plea that he was not present in the house when the incident occurred. Notably, no defence evidence was led. Trial Court Findings 20. He also did not dispute her death on 18.02.1999. He also did not take a specific plea that he was not present in the house when the incident occurred. Notably, no defence evidence was led. Trial Court Findings 20. The trial court found from the prosecution evidence that it was proved that the incident had occurred in the house of the appellant; that the deceased was brought to the hospital in a burnt condition on 13.02.1999; and that she was under treatment at the hospital where she died on 18.02.1999 due to septicaemia as a result of ante mortem burn injuries. The trial court found that from the statement of PW-5 it was proved that the written report was signed by him; the Chik maker (PW-6) proved the submission of written report by PW-5; that the medical record produced by PW-10 proved that the deceased was admitted in the hospital on 13.2.1999 with burn injuries and the dying declaration was proved by PW-8, which proved that the appellant had caused those burn injuries. The trial court therefore held that the prosecution was successful in proving the guilt of the appellant beyond reasonable doubt. The trial court, accordingly, convicted the appellant and sentenced him as above. Submissions on behalf of the appellant 21. The learned counsel for the appellant submitted that since all public witnesses of fact examined by the prosecution were declared hostile as they have not supported the prosecution story that the deceased was a liquor addict and was in a habit of ill-treating/ assaulting his wife; and, admittedly, the deceased was married to the appellant more than seven years before the incident, no presumption was available to the prosecution, hence, in absence of any evidence in respect of motive for the crime it was not appropriate to record conviction on the sole basis of dying declaration. It has been urged that the dying declaration has been recorded after four days. The deceased was admitted in the hospital on 13.02.1999 with about 90% burns. There is no reason available in the prosecution evidence as to why the dying declaration was recorded so late. From the statement of the recording magistrate, it appears, one or two persons were present in the hospital from before, when her dying declaration was recorded. The deceased was admitted in the hospital on 13.02.1999 with about 90% burns. There is no reason available in the prosecution evidence as to why the dying declaration was recorded so late. From the statement of the recording magistrate, it appears, one or two persons were present in the hospital from before, when her dying declaration was recorded. In such circumstances, the possibility of the dying declaration being tutored and that she was not in a fit mental condition at the time of giving her declaration cannot be ruled out therefore, the dying declaration is not worthy of acceptance as to form the sole basis of conviction. Submissions on behalf of the State 22. Learned AGA has supported the judgment and order of the trial court and has submitted that the spot inspection by the I.O., recovery of burnt articles therefrom and the statement of the I.O. has proved beyond reasonable doubt that the place of incident is the house of the appellant. The appellant in his statement recorded under Section 313 CrPC has neither stated that he was present elsewhere nor claimed that the place of incident was not his house but some other place. The deceased was brought to the hospital in a burnt state by her Devar Chatar Singh (PW-3) on 13.02.1999 at 1.20 am, which fact though not admitted by PW-3 but was proved from the entry in the original record of the hospital produced by PW-10 as also by injury report (Ex. Ka-13). It is also proved from the recital in the inquest report (Ex. Ka-1) and the autopsy report (Ex. Ka-2) that the deceased died in the hospital on 18.02.1999 at 10 am therefore, from record it was proved that the deceased remained in the hospital from 13.02.1999 to 18.02.1999. Once the prosecution was successful in establishing those facts, the dying declaration (Ex. Ka-5), which was duly proved, finds support from the surrounding circumstances. The mental fitness of the deceased at the time of making her declaration and of her fitness during the course of recording her dying declaration are certified at the margin of Ex. Ka-5 by an endorsement to that effect. Nothing could be elicited from the statement of recording magistrate that he had failed to notice whether the deceased was mentally fit or not. Ka-5 by an endorsement to that effect. Nothing could be elicited from the statement of recording magistrate that he had failed to notice whether the deceased was mentally fit or not. In these circumstances, the dying declaration stands duly proved and as it finds corroboration from the surrounding circumstances proved on record, it can form the sole basis of conviction. The appeal be therefore dismissed. ANALYSIS 23. Having noticed the rival submissions and the entire prosecution evidence on record before we proceed to evaluate the evidence, we must remind ourselves that if public witnesses of fact examined by the prosecution are declared hostile their testimony does not get effaced from the record. It can be utilised by the prosecution to the extent it corroborates the prosecution case. In this case though the informant - PW-5 (brother of the deceased), Dewar (PW-3) and Devrani (PW-4) of the deceased may have been declared hostile but from the statement of informant that the written report bears his signature, the lodging of the FIR at his instance, as proved by PW-6, is corroborated. PW-5 proved that the deceased was appellant's wife. This fact is admitted by the appellant in his statement recorded under section 313 CrPC. Even PW-3 (Chatar Singh) admits that Bali Singh (appellant) is his elder brother and the deceased Santosh was his wife. Similarly, Smt. Rajesh (PW-4) admits that she is wife of Chatar Singh. Thus, from the public witnesses examined by the prosecution even though they were declared hostile this much is established that the deceased Santosh was married to the appellant; Chatar Singh (PW-3) was her Devar; and Smt. Rajesh (PW-4) her Devrani. Notably, the dying declaration (Ex. Ka-5) is to the effect that after she was set ablaze by her husband when fire was doused, her Devar, Saas and Sasur had got her admitted in the hospital. This portion of the dying declaration finds support from Ex. Ka-13 as also the medical record produced by PW-10 which discloses that she was brought to the hospital by Chatar Singh i.e. her Dewar. 24. In the instant case, by the testimony of the I.O. (PW-9) who inspected the spot, prepared site plan (Ex. Ka-10) and lifted burnt quilt/Dari from the room where the deceased was burned, it is proved that the deceased got burnt in a room of her matrimonial home. 24. In the instant case, by the testimony of the I.O. (PW-9) who inspected the spot, prepared site plan (Ex. Ka-10) and lifted burnt quilt/Dari from the room where the deceased was burned, it is proved that the deceased got burnt in a room of her matrimonial home. The I.O. had also disclosed that the quilt and Dari was found on the floor and not on the cot, which suggests that when the deceased was ablaze an effort was made to douse the fire by throwing a quilt/Dari on her. This evidence corroborates the dying declaration (Ex. Ka-5) wherein it is recorded that after she was set ablaze, fire was doused by throwing a quilt on her. Notably, the appellant in his statement recorded under Section 313 CrPC does not claim that his wife got burnt at some other place. 25. In so far as the dying declaration (Ex. Ka-5) is concerned, the same has been proved by the recording Magistrate (PW-8). He not only proved its recording but also proved declarant's fitness to depose and the endorsement/ certificate to that effect provided by the attending doctor on the margin of Ex. Ka-5. Perusal of Ex. Ka-5 indicates that on its left margin the attending doctor has endorsed that at 4.10 pm on 17.2.1999, the patient was found fully conscious and fit for dying declaration (DD). Thereafter, just below that it is endorsed that the patient remained fully conscious during dying declaration (DD). The recording magistrate has also confirmed that the declarant was in a fit mental condition and was in a position to speak when he recorded the dying declaration. PW-8 stated that the dying declaration was recorded by him between 4.10 and 4.15. The statement of the declarant comprises of six short sentences which can conveniently be recorded in that time. The argument of the learned counsel for the appellant that since the certifying doctor was not examined mental fitness of the declarant cannot be held proved, is not acceptable. In Laxman v. State of Maharashtra, (2002) 6 SCC 710 , a Constitution Bench of the Supreme Court, held that the court before accepting the dying declaration must be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. In the instant case, there is no such suggestion to PW-8 during his cross-examination. In the instant case, there is no such suggestion to PW-8 during his cross-examination. In respect of necessity of medical certificate of fitness of the declarant, in Laxman's case (supra), in paragraph 3, it was held: "Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit condition and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. ........What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by a doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." 26. In light of the law noticed above, on perusal of the record of the instant case, we find that not only there appears a certificate of fitness on the margin of the paper used for recording the dying declaration but there is a statement of the recording Magistrate (PW-8) also, about the declarant being fit to give her statement. Further, no effort has been there on the part of the defence to summon the medical records to demonstrate that the general or mental condition of that patient was so low that recording of the declaration was not feasible. In such circumstances, in our view, non-examination of the doctor does not render the dying declaration unworthy of acceptance. 27. When we come to the contents of the dying declaration, we find that it is straightforward and truthful. In such circumstances, in our view, non-examination of the doctor does not render the dying declaration unworthy of acceptance. 27. When we come to the contents of the dying declaration, we find that it is straightforward and truthful. It states that the deceased and her husband had a fight; the fight was because of consumption of liquor by her husband; husband poured kerosene on her and set her ablaze; the incident is of night; thereafter, fire was doused by throwing quilt on her; whereafter, her Devar, Saas and Sasur brought her to hospital; that she was married 15 years ago and has two children. When we take into account the proven documents i.e. Ex. Ka-13 (medical examination report of the deceased), Ex. Ka-11 (seizure of semi burnt Quilt/ Dari from the room of the deceased), Ex. Ka-1 (Inquest report), Ex. Ka-2 (autopsy report) and site plan (Ex. Ka-10), it becomes clear that the deceased suffered burn injuries in the night of 12/13.02.1999; that an attempt to douse the fire by throwing a quilt on her was made; that she was brought to the hospital in the night by her Devar and was medically examined by the doctor at 1.30 am on 13.2.1999 for her burn injuries; that she remained admitted in the hospital till she died on 18.02.1999; and the autopsy report proved that she died due to septicaemia as a result of those burn injuries. The statement in the dying declaration that she was set ablaze by her husband, after pouring kerosene, in the night and was brought to the Hospital is corroborated by Ex. Ka-13. Similarly, statement that fire was doused by throwing quilt is corroborated by seizure of burnt quilt from the spot i.e. Ex. Ka-11. Likewise, the statement that she was brought by her Devar is corroborated by entry to that effect in Ex. Ka-13. Once, this is the position, we have no hesitation in coming to the conclusion that the dying declaration is wholly reliable and truthful and can on its own form the sole basis of conviction. We, therefore, uphold the order of the trial court convicting the appellant. 28. At this stage, an alternative submission was made by the learned counsel for the appellant. We, therefore, uphold the order of the trial court convicting the appellant. 28. At this stage, an alternative submission was made by the learned counsel for the appellant. Learned counsel for the appellant submits that both from the written report as well as the dying declaration it is clear that there was a fight in between husband and wife on account of consumption of liquor by the husband (appellant), which suggests that the appellant was in a drunken state; and the deceased was set ablaze by her husband during the course of that fight. He submitted that from the declaration it appears that the appellant tried to douse the fire by throwing a quilt. In these circumstances, the charge framed against the appellant is of an offence punishable under Section 304 IPC and not under Section 302 IPC. It is argued that it is not mandatory that on conviction for an offence punishable under Section 304 IPC, life imprisonment be awarded. In these circumstances, since the appellant has already served incarceration of over 14 years since the date of his conviction i.e. 22.02.2008 he be let out by reducing the sentence of imprisonment for life to the sentence already undergone. 29. Sri J.K. Upadhyay, who appears for the State, does not dispute that no premeditated plan to kill the deceased has been proved by the prosecution evidence. He accepts that as per the dying declaration the incident occurred during a fight in between husband and wife on consumption of liquor by the husband. He thus leaves it to the discretion of the court to alter the sentence. 30. Having considered the submissions on the question of sentence, and having noticed that the conviction of the appellant is under Section 304 IPC, we are of the view that as the appellant has already served over 14 years of sentence, though we affirm the conviction of the appellant under Section 304 IPC but, looking to the facts of the case and the mitigating circumstance of an effort to douse the fire, we are of the considered view that ends of justice would be served if the sentence of imprisonment for life awarded by the trial court is reduced to the period of sentence already under gone. Consequently, the appeal is partly allowed to the extent above. Consequently, the appeal is partly allowed to the extent above. The sentence of imprisonment for life awarded to the appellant by the trial court is modified and reduced to the period of sentence already undergone. However, the fine and the default sentence awarded by the trial court is maintained. Subject to above, the accused-appellant shall be released forthwith, unless wanted in any other case, on compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial court. 31. Let a copy of this order be forwarded to the court below along with the record for information and compliance.