JUDGMENT : 1. Present Criminal Appeal has been directed against the judgment and order dated 8.4.2016 passed by the Additional Sessions Judge Court No.1, Hathras in Sessions Trial No. 51 of 2014 (Case Crime No. 134 of 2013), P.S. Hasayan, District Hathras convicting and sentencing the appellant under Section 304 I.P.C. for life imprisonment and a fine of Rs. 20,000/-with stipulation of default clause. 2. Brief facts, as culled out from the record, are that a First Information Report was lodged by the informant, Yogesh Kumar son of Rohan Singh, resident of village Pakshi Bihar, Police Station Jalesar, Etah, at Police Station Hasayan, District Hathras with the averments that marriage of her sister, Vimlesh, was solemnized with Devendra Ram son of Tikam Singh, resident of Buzurg about 12 years back. Two children were born out from their wedlock. On 10.4.2013 at about 4.00 p.m. Devendra poured kerosene upon the sister of informant and set her ablaze due to which she received burn injuries. Devendra had brought the victim to Aligarh for treatment but he fled from hospital leaving the victim there. Informant brought the victim from the hospital to the police station in an injured condition to lodge the F.I.R.. 3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-11) was registered at Police Station concerned on 11.4.2013 at 11.35 p.m. against the applicant Devendra. 4. Matter was investigated by Sub-Inspector Jiya Lal. During the course of investigation, the Investigating Officer recorded the statement of witnesses and the victim/deceased, prepared site plan, inquest report was also prepared and post mortem was performed. After making thorough investigation, charge sheet was submitted against the accused appellant. The learned Magistrate summoned the accused and committed the case to Court of Sessions, as prima facie charge was for the sessions triable offence. 5. The charge framed was under Section 304 IPC. The accused pleaded not guilty and wanted to be tried. Trial started and in support of its case, prosecution examined 7 witnesses, who are as follows: 1 Yogesh Kumar PW-1 informant (brother of the deceased) 2 S.I. Mohd. Aslam PW-2 (performed the inquest and prepared other papers) 3 Dr. R.P. Singh PW-3 (prepared injury report of the victim) 4 Radhapyari PW-4 5 Rohan Singh PW-5 6 S.I. Jiya Lal PW-6 (Investigating Officer) 7 Dr. Iqrar Ahmad PW-7 (performed the post mortem of the deceased) 6. Aslam PW-2 (performed the inquest and prepared other papers) 3 Dr. R.P. Singh PW-3 (prepared injury report of the victim) 4 Radhapyari PW-4 5 Rohan Singh PW-5 6 S.I. Jiya Lal PW-6 (Investigating Officer) 7 Dr. Iqrar Ahmad PW-7 (performed the post mortem of the deceased) 6. In support of oral version, following documents were filed and proved on behalf of the prosecution: 1 Written report Ext. A-1 2 Inquest Report Ext. A-2 3 Challan Nash Ext. A-3 4 Letter to R.I. Ext. A-4 5 Letter to C.M.O. Ext. A-5 6 Photo Nash Ext. A-6 7 Injury report Ext. A-7 8 Site Plan Ext. A-8 9 Copy of case diary Ext. A-9 10 Charge sheet Ext A-10 11 Chik F.I.R. Ext. A-11 12 Copy G.D. Ext. A-12 13 Post mortem report Ext. A-13 7. Deceased was hospitalised after the occurrence by her husband. She died after 7 days of the occurrence during the course of treatment. 8. After conclusion of evidence, statement of accused was recorded under Section 313 of Cr.P.C., in which he pleaded his false implication and claimed alibi. In support of its case defence has examined Ranvir Singh as DW-1. 9. Heard Shri S.S. Rajput, learned counsel for the appellant and Shri Patanjali Mishra, learned AGA for the State. 10. Learned counsel for the appellant submitted that accused has been falsely implicated in this case. He has not committed the present offence. Deceased was the wife of the appellant. It is further argued that on the basis of analysis of prosecution evidence, no guilt against the accused appellant is established and proved. Learned trial court misread the evidence and convicted and sentenced the appellant. In alternative, it is submitted that this appeal relates to the year 2016 and the appellant is in jail since 07.10.2013 i.e. for more than nine years. The sentence for life imprisonment awarded to the appellant by the trial court is very harsh and excessive. If the Court deems it appropriate, as the accused has been in jail for more than 9 years without remission, he may be granted fixed term punishment of incarceration. 11. No other point or argument was raised by the learned counsel for the appellant and he confined his arguments on above points only. 12. If the Court deems it appropriate, as the accused has been in jail for more than 9 years without remission, he may be granted fixed term punishment of incarceration. 11. No other point or argument was raised by the learned counsel for the appellant and he confined his arguments on above points only. 12. Learned AGA for the State vehemently opposed the submissions made on behalf of the appellant and submitted that PW-4, the mother of the deceased and PW-5, father of the deceased, have supported the prosecution case in their testimonies. Several burn injuries were found on the body of the deceased. Hence, while going through the evidence on record, it cannot be said that the offence under Section 304 IPC is not made out against he appellant. The learned trial court has not committed any error in convicting and sentencing the accused-appellant under Section 304 IPC. There is no merit in the appeal and the same may be dismissed. 13. Learned Judge has categorically relied upon the testimony of PW-7 Dr. Iqrar Ahmad and has opined that deceased died out of septicemia as a result of ante mortem thermal burn. The postmortem was conducted on 18.4.2013. Though P.W.-1 informant in his examination-in-chief has supported the prosecution case yet in his cross-examination he did not support and resiled from his earlier statement. PW-4 and PW-5 have supported the prosecution case and stated that the accused used to beat the deceased. There was a quarrel between them for returning the borrowed money from one Jaipal Singh. Deceased has stated before the Investigating Officer that the appellant has set her ablaze by pouring kerosene due to which she was severely burnt. The genesis of setting her ablaze was nonpayment of borrowed money. The said statement has been proved by PW-6 in verbatim, the Investigating Officer as Ext. K9, which was admissible under Section 32 of Evidence Act. As per Ext. The genesis of setting her ablaze was nonpayment of borrowed money. The said statement has been proved by PW-6 in verbatim, the Investigating Officer as Ext. K9, which was admissible under Section 32 of Evidence Act. As per Ext. A-9 the deceased had stated before the Investigating Officer as under : ^^esjh 'kknh nsosUnz ds lkFk gqbZ Fkh vkSj oks ijs'kku djrk Fkk] ekjrk&ihVrk FkkA m/kkj ds :i;s okil djus ds Åij ekj&ihV dh Fkh] >xM+k gqvk FkkA bl dkj.k ^^fnukad 10-4-13 dks esjs ifr nsosUnz us [ksr ls tks fudyokdj cktkj es csp fn;k Fkk &&& blh ckr ij fnu ds pkj cts esjs ifr nsosUnz us esjs Åij feVVh dk rsy Mky yxk nh vkSj eSa dkQh ty xbZA^^ 14. In Mukesh Bhai Gopal Bhai Barot vs. State of Gujarat, 2010 AIR SCW 5614 it was held by the Hon’ble Apex Court that statement of a person recorded under Section 161 CrPC would be treated as dying declaration after his death. Likewise, in Pradeep Bisoi Vs. State of Odisha,(2019)11 SCC500, it was reiterated that the statement of victim recorded under Section 161 CrPC before three months of the death will cover under Section 32(1) of the Evidence Act and admissible as dying declaration after death of the victim. 15. PW-6, the Investigating Officer, is a responsible police officer. He has no grudge or enmity with the accused and there is no possibility of false implication of the accused by this witness. In the present case the statement of the deceased under Section 161 CrPC recorded by the Investigating Officer is a cogent and reliable piece of evidence and is admissible as dying declaration and the prosecution undoubtedly can reply upon this statement. 16. The accused has taken a specific plea in his statement under Section 313 CrPC that at the time of occurrence he was not present at his home and had gone to the market. To prove this fact, DW-1 Ranvir Singh has been examined on behalf of accused. Learned trial court has elaborately discussed the entire evidence of DW-1 and has found that his evidence is not cogent and trustworthy. We have also analyzed the evidence of DW-1 and found that in the facts and circumstances of the case and also in the light of topography of the place of occurrence, as has been shown in the site plan Ext. We have also analyzed the evidence of DW-1 and found that in the facts and circumstances of the case and also in the light of topography of the place of occurrence, as has been shown in the site plan Ext. ka-8 prepared by the Investigating Officer, the evidence of DW-1 Ranvir Singh is not believable. It is also pertinent to mention here that the fact that at the time of occurrence accused was not present on the spot was especially within the knowledge of the accused and since the prosecution had discharged its burden on the basis of dying declaration Ext. ka-9, the onus was shifted upon the accused to show that his plea of alibi was true. It has been held by the Hon’ble Apex Court in Satye Singh and Another v. State of Uttarakhand, (2022) 5 SCC 438 that Section 106 Evidence Act is not intended to relieve prosecution from discharging its duty to prove guilt of accused. Prosecution must discharge its primary onus of proof and establish the basic facts against the accused in accordance with law and only thereafter may Section 106 be restored to, in the facts and circumstances of each case. 17. In Shambu Nath Mehra vs. State of Ajmer AIR 1956 SC 404 , wherein the basic law on the subject was discussed, has been relied upon in the case of Satye Singh(supra). It has been held by Hon’ble Apex Court that : “11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are [Attygalle v. Emperor, 1936 SCC OnLine PC 20 : AIR 1936 PC 169 ] and Seneviratne v. R. [Seneviratne v. R., (1936) 3 All ER 36] , All ER at p. 49.” 18. It has already been held above that the accused has not succeeded to discharge his onus/burden to prove his plea of alibi, hence, this legal position also stands against him. 19. The learned Sessions Judge has relied upon the testimony of PW-4, PW-5, PW-6 and PW-7 and convicted and sentenced the appellant for the offence under Section 304 IPC. As per the finding of the learned trial court, the incident happened out of quarrel and death has happened due to septicemia as a result of thermal burn. 20. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report and more particularly the dying declaration, there is no doubt left in our mind about the guilt of the present appellant, as concluded by the trial court. We concur with the same. 21. Now it takes us to the quantum of sentence, specifically under Section 304 IPC, where life imprisonment has been awarded by learned trial court. For awarding the sentence, we have to keep in mind the theories of punishment in our country. 22. 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 ante-social behaviour has to be countered not by undue cruelty but by reculturization. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social 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." 23. The term '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. 24. 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 consideration. 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. 25. Considering 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. 26. 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. 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. 27. Keeping in view the reformative theory of punishment and “doctrine of proportionality”, it appears to us that the sentence of life imprisonment awarded under Section 304 IPC by learned trial court to the appellant is too harsh and severe keeping in view the facts and circumstances of this case. The appellant is in jail for the last more than 9 years. This fact is also admitted by learned AGA. 28. Hence, we are of the considered view that since the appellant has already served-out more than 9 years sentence, the sentence of life imprisonment under Section 304 IPC is converted into the sentence already undergone. Fine amount is reduced to Rs. 10,000/-. If fine is not paid within 12 weeks from the date of release, appellant shall undergo six months’ further incarceration. 29. The appeal is accordingly partly allowed, as modified above. 30. The office is directed to transmit the record to the court below.