Point of Law: To kidnapping from legal guardian, wherein it was established that the Court while respecting the concerns of both society and victim, propounded that the twin principle of deterrence and correction would be served by reducing the period of incarceration already undergone by the accused.

Headnote:
Indian Penal Code, 1860 - Sections 498, 452, 299, 300 & 302, and 498A - Dowry Prohibition Act, 1961 - Section 3/4 - Criminal Procedure Code,1973 – Section 313 - Dowry demand -Commits offence of culpable homicide – Offence of murder – Examination of accused - Complainant lodged a complaint that his daughter was married with accused-appellant After she went to matrimonial home, she was being harassed for dowry - She was sent back to matrimonial home again accused demanded money and gold chain - She was set ablaze by pouring kerosene on her despite fact that she was pregnant - She was subjected to all kinds of mental harassment - Child in the womb was also declared dead parents of the deceased decided to see that accused are brought to trial - Complainant lodged complaint - Charge-sheet against accused under 498A & 304 B of I.P.C. and Section 3/4 of Dowry Prohibition Act, 1961.
Finding of the Court :
Indian Penal Code instead of life imprisonment and sentence in default of fine as awarded by trial court under section 302 IPC - Sentence imposed in default of fine under section 452 IPC is also reduced to two months - Appellants are ordered to undergo rigorous imprisonment for a period - Six months for offence punishable under section 304(I) of Indian Penal Code and rigorous imprisonment for a period of five years and fine - Learned counsel for the appellant would permit us to uphold our finding which we conclusively hold that offence is not under Section 302 of I.P.C. but is culpable homicide - Accused-appellant fails to pay the fine, the default sentence will start after 13 years of incarceration – Court come to definite conclusion that death was due to septicemia - Judgments cited by the learned counsel for the appellant would permit us to uphold our finding conclusively hold that the offence is not under Section 302 of I.P.C.
Result: Appeal is partly allowed

JUDGMENT :

K.J. Thaker, J.

1. This appeal challenges the judgment and order dated 13.4.2016 passed by Additional Sessions Judge, Court No.1, Kannauj in Sessions Trial No.144 of 2009 convicting accused-appellant under Sections 498 & 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.25,000/-under Section 302 of I.P.C. and under Section 498A, sentenced him to undergo 2 years and 6 months rigorous imprisonment with fine of Rs.5,000/-and in case of default of payment of fine, further to undergo six months imprisonment.

2. Factual scenario as culled out from the record and the judgment of the Court below is that the complainant lodged a complaint that his daughter was married with accused-appellant namely Sunil Kumar Diwaker on 28.4.2008. After she went to matrimonial home, she was being harassed for dowry. On the fateful day, she was sent back to matrimonial home on 28.10.2008, again accused demanded money and gold chain. She was set ablaze by pouring kerosene on her despite the fact that she was pregnant. She was subjected to all kinds of mental harassment. The child in the womb was also declared dead and, therefore, the parents of the deceased decided to see that the accused are brought to trial. The complainant lodged the complaint.

3. Investigation was moved into motion. After recording statements of various persons, the investigating officer submitted the charge-sheet against accused under 498A & 304 B of I.P.C. and Section 3/4 of Dowry Prohibition Act, 1961 (in short 'D.P. Act'). The learned Chief Judicial Magistrate before whom charge sheet was laid put the same before the learned Sessions Judge. The learned Sessions Judge, on hearing the learned Government Advocate and learned counsel for the accused, framed charges under Section 498A, 304B, 302/34 of I.P.C. & Section 4 of D.P. Act.

4. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 9 witnesses who are as follows:

1 Ramsaran PW1

2 Rajrani PW2

3 Jintendra PW3

4 Surendra Kumar Sharma PW4

5 Dr. Anil Nigam PW5

6 Sameer Verma PW6

7 Dr. G.N. Dwivedi PW7

8 Indrajeet Singh PW8

9 Ram Swaroop PW9

5. In support of ocular version following documents were filed:

1 F.I.R. Ex.Ka.8

2 Written Report Ex.Ka.1

3 Panchayatnama Ex. Ka.2

4 Postmortem Report Ex.Ka.6

5 Site Plan Ex.Ka.10

6 Charge-sheet Ex.Ka.11

6. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid.

7. Heard Sri Amar Singh Kashyap and Sri Ashwani Prakash Tripathi, learned counsel for accused-appellant, learned A.G.A. for the State and perused the record.

8. It is submitted by learned counsel for accused-appellant that the accused is in jail since 2008, more particularly from 19.12.2008. The deceased was the wife of the accused-appellant. It is submitted that the deceased caught fire while burning the fire crackers and in saving her, the accused also sustained burn injuries in his hand; that both the deceased and accused sustained burn injuries and admitted to Hallet Hospital Kanpur where after giving her statement before the Magistrate, the Smt. Renu died.

9. Learned counsel for the appellant has vehemently submitted that dying declaration is not worth believing and it is an admitted position of fact that she died out of septicemia.

10. It is further submitted by learned counsel for the appellant that most of the witnesses have turned hostile despite that, learned Sessions Judge has convicted him under Section 302 of I.P.C. As far as conviction under Section 498A of IPC is concerned, he has completed the period of incarceration. It is submitted that there is no evidence of demand of dowry in the dying declaration which was the sole base of the case and that neither any spe