Umesh Chandra Sharma, J.
1. We have heard learned counsel for the appellants, learned A.G.A for the State and perused the material available on record.
2. Criminal Appeal No. 4875 of 2014, Criminal Appeal No. 4713 and Criminal Appeal No. 1844 of 2015 have been filed by the appellants therein challenging a common judgment and order passed by Additional Sessions Judge, Court No. 2, Ballia in S.T No. 217 of 2011, arising out of Case Crime No. 53 of 2011, under Sections 376 (2) (g), 307 and 302 I.P.C, Police Station - Sukhpura, District - Ballia, convicting them under Section 376 (2) (g) I.P.C and sentencing for rigorous imprisonment for life and fine of Rs.50,000/- on each of them with default stipulation.
3. The brief facts of the case are as under :-
On a written complaint (Ex. Ka-1) of Nazim Ansari (PW-1), F.I.R (Ex. Ka-23) of Case Crime No. 35 of 2011 was registered under Section 376 I.P.C, at Police Station - Sukhpura, District - Ballia on 08.04.2011 at 12:15 hours by Constable Clerk (PW-10) against Israr @ Mintu, Pintu Yadav and Anoop Yadav. It has been stated in the F.I.R that Zareena Khatoon, daughter of the informant, aged about 17 years, was alone in the house at the time and date of occurrence when Mintu son of Saleem Ansari, Pintu son of Suraj Yadav and Anoop son of Laxmi Yadav, resident of Sukhpura, Police Station - Sukhpura, District - Ballia, resident of the same village came there and enquired about the mother of the girl. On having information that mother of the girl was away from the house, they got the door opened and sat inside the house to wait for her mother’s arrival. Pintu and Anoop bolted the door from inside while Mintu @ Israr bolted from the outside. Thereafter Pintu and Anoop by pressing her face by a pillow committed rape upon her. On alarm being raised they fled from there. When the informant came to his house, the girl narrated the whole incident and when he went out of the house in search of the accused persons he saw that his daughter had immolated herself due to which her whole body was burnt. Immediately, the girl was rushed to the District Hospital, Ballia, where her treatment was going on and he came to give written complaint of the incident to the Police Station about the incident occurred at about 7:00 pm. On 07.04.2011. the incident was witnessed by the villagers, who saw the appellants coming out of the house of the informant hurriedly. On 08.04.2011 at about 12:05 dying declaration was recorded by the Nayab Tehsildar, Sadar Ballia, after examination by the Medical Officer, District Hospital Ballia, who certified that she was mentally fit to give statement.
4. In her dying declaration, she narrated the whole story regarding the rape and also added that she was burnt by the accused persons, though, it is not in conformity with the contents of F.I.R and deposition of informant P.W-1. The lower court has not accepted part of the dying declaration that after rape she was set ablaze by the accused persons. After recording the dying declaration she died at 11:25 p.m on 18.04.2011. She was hundred percent burnt.
5. P.W 5. Dr. Manju Singh, District Women Hospital, Varanasi, the then Doctor at District Woman Hospital, Ballia, upon medical examination, found swelling on her private part due to burn, there was swelling upon the whole body due to burnt, but there was no sign of injury on her private parts. Her hymen was old torn and it was easily taking one finger entrance. After x-ray, she was found above 18 years old; in her vaginal smear examination male sperm was found.
6. P.W. 6. Dr. V.K. Gupta, Medical Officer, District Hospital, Ballia, did autopsy, he reported that the deceased was an average built lady of 16 years of age, she died due to burn injury.
7. P.W. 7. Dr. Krishna Chandra Rai, New Primary Health Center, Viravkot (Badagaon), Varanasi, the then Doctor District Hospital, Ballia, had examined the deceased on 07.04.2011 as Emergency Doctor, in District Hospital, Ballia, who found that deceased was hundred percent burnt. He referred the deceased to the Surgeon of District Hospital, Ballia and recorded and proved the injuries as Ex. - Ka 10. He has also proved his both certificates regarding fitness of the injured before and after recording of the Dying Declaration as Ex. K - 27 and Ex. K – 28 upon the Dying Declaration Ex. K-2.
8. P.W 9. Kanhaiyya Lal Yadav, Traffic Sub-Inspector, the then Chauki In-Charge, Police Station - Kotwali, Ballia, had completed the inquest report Ex. K-17 and prepared the papers of Photo-naash Ex. K-18, Chalan-naash Ex. K-19, letter sent to R.I. Ex. K-21, and letter sent to C.MO Ex. K-22 and prepared specimen seal (namuna mohar) Ex. K-20.
9. P.W.10. Head Constable Bhagwan Ram, Police Station - Suhpura, District- Ballia, has prepared the Chik F.I.R on the basis Tehrir and entered the same in G.D, which is called Kaimi G.D. and proved the same as Ex. K.23 and K-24.
10. P.W 8. Ashok Singh Yadav, S.O. Chopan, District Sonbhadra, I.O. of the case has investigated the case and prepared a map, proved the same as Ex K-11, he took ashes and burnt clothes of the deceased and prepared memo and proved the same as Ex. K-12. He also took the clothes of accused Pintu Kumar Yadav and Anoop Yadav prepared recovery memo and proved the same as Ex. K-13. He added Section 302 I.P.C and proved the same as Ex. K14, when the victim died, he after inquest added Section 302 I.P.C and submitted the charge-sheet under Sections 376 (2) (g) /307/302 I.P.C and proved the same as Ex. K-16. He also proved the clothes of accused persons as material Ex. 1 to 7 and burnt clothes of deceased as material Ex. 8.
11. After submission of charge-sheet the case was committed to the Court of Sessions, charges were framed on 11.08.2013 and 18.11.2013 and the evidences were recorded. Statement under Section 313 Cr.P.C as recorded on 16.05.2013 and later on written statement under Section 313 Cr.P.C were also adduced by all three accused persons and opportunity to adduce the evidence was also provided. In defence D.W-1 Shamshad Ahmad was examined.
12. After hearing the arguments the lower court found the charge under Section 376 (2) (g) I.P.C to be proved and also opined that the case under Sections 302/34 and 307/34 I.P.C have not been proved, accordingly the accused persons were convicted and sentenced against which this appeal has been preferred by the convicted accused persons.
13. No appeal has been preferred from the side of State so far as the acquittal under Sections 302/34 and 307/34 I.P.C is concerned.
14. The accused persons have taken following grounds:-
15. In Criminal Appeal No. 844 of 2015, the accused -Pintu Yadav has taken the ground that no eye witness in the aforesaid case has been examined to prove the charges. The defence version and evidence were not properly considered by the trail court and the appellant has not committed any crime. The impugned judgment and order has been passed against the weight of evidence on record. The judgment and order has been passed on the basis of conjectures and surmises and also the sentence is too severe, hence the appeal be allowed and the appellant be released on bail.
16. The appellant - Anoop Yadav in his Appeal No. 4713 of 2014 has taken the ground that the impugned judgment and order is against the law and facts of the case. The appellant has falsely been implicated in the aforesaid case. No eye witness has seen the incident nor examined. The defence version and statement version of the defence witnesses were not considered. Rests of the grounds are similar grounds taken by the co-accused and Pintu Yadav.
17. The accused – Ishrar Ahmad @ Mintu in Criminal Appeal No. 4815 of 2014, has taken the ground that the impugned judgment is bad in the eye of law, because the person, who records a dying declaration must be satisfied that the dying person was making a conscious and voluntarily statement with normal understanding, but the trial court without considering the settled principles of law recorded the convictions on the basis of dying declaration, which is unsustainable in the eyes of law. It is fully established that the deceased sustained hundred percent burn injuries and in such condition how she can adduce statement, this aspect has been ignored by the trial court. If the present appellant was outside of the house then he could not be one of the offender under Section 376 (2) (g) I.P.C and his act cannot be considered within the definition of gang rape under Section 376 (2) (g) I.P.C. The defence evidence has completely been overlooked and ignored by the trial court. The sentence awarded by the trial court is too severe in nature and also against the evidence on record, only relying on the dying declaration of the victim. There are material contradiction and discrepancies in the statement of the witnesses and the deceased's dying declaration. The judgment of conviction of the lower court is unjustified and against the evidence on record as there were several irregularities and short comings in the prosecution case, which creates a doubt about the entire allegations made against the appellant, but despite of that the trial court has recorded the conviction of the appellant under Section 376 (2) (g) I.P.C. If the victim was hundred percent burnt then she was not in a position to state dying declaration. There is no single independent witness, who has supported the prosecution version, which itself creates doubt on the prosecution story, therefore the appeal be allowed.
18. From the perusal of memo of appeal, it transpires that the accused persons have taken following grounds:-
1. That the dying declaration made by the deceased is not liable to be accepted, as she was in the state of hundred percent burns and she had not given the statement in a conscious state of mind and voluntarily with the normal understanding.
2. That since the deceased had sustained hundred percent burn injuries; therefore, she was unable to give the dying declaration.
3. That the appellant -Israr Ahmad @ Mintu is said to be standing outside of the house, therefore, he cannot be said to be accused of gang raper under Section 376 2 (g) I.P.C.
4. That Qamar-U-ddeen, uncle of the accused - Israr Ahmad @ Mintu had filed a Civil Suit No. 55 of 1989 – Qamar-U-ddeen Vs. Sikandar & Ors. in the Court of Munsif (West), Ballia, regarding opening of a window, due to which, he was falsely implicated.
5. That the deceased was having love affair with Chandan Gupta, due to which her father was defamed in the village and he wanted her early marriage with an another person, therefore when the family members of the deceased were out of the house shopping for her marriage proposal then being aggrieved, she put herself on fire to commit suicide and later on died.
19. After framing the charge and on denial of the charges, the prosecution adduced following witnesses to prove the charges.
P.W. 1 - Informant Nazeem Ansari, father of the deceased,
P.W. 2 - Sobra Begum, mother of the deceased,
P.W. 3 -Bhandari Prasad, Nayab Tehsildar, who recorded the dying declaration Ex. K 2.
P.W. 4 - Dr. R.N. Upadhyaya, Senior Surgeon, District Hospital, Ballia, who has treated the deceased and asked about the incident and proved the Ex-ray report Ex. K-3, Bed Head Ticket, Ex. K-4, Prescription District Hospital Ex. K-5 and paper regarding treatment Ex. K-6.
P.W. 5 - Dr. Manju Singh, District Women Hospital, Varanasi, examined the witnesses and proved her injury report as Ex. K-6 and supplementary report Ex. K-7 & K-8.
P.W. 6 - Dr. V.K. Gupta, Medical Officer, District Hospital, Ballia, has proved the postmortem report Ex.K-9.
P.W. 7 - Dr. Krishna Chandra Rai, New Preliminary Health Center, Viravkot (Badagaon), Varanasi, who first of all examined the victim and endorsed her injuries has and proved the same as Ex.K-10.
P.W. 8 - I.O Ashok Singh Yadav, S.O. Chopan, District Sonbhadra, has proved the map as Ex. K-11, specimen ashes and burnt clothes of the prosecutrix as Ex. K-12, clothes of the Pintu Kumar Yadav and Anoop Yadav, recovery memo of accused as K-13, G.D regarding addition of Section 307 I.P.C, Ex. K-14 and Charge-sheet Ex. K-16.
The witness has also proved the clothes of accused persons as material Ex. 1 to 7 and burnt clothes of the deceased material Ex. 8.
P.W. 9 - Kanhaiyya Lal Yadav, Traffic Sub-Inspector, who has proved the inquest report as Ex. K-17, Photo-naas as Ex. K-18, Chalaan-nash K-19, Specimen seal K-20, letter to R.I. K-21, letter to C.M.O, Ex. K-22.
P.W. 10 - Head Constable Bhagwan Ram, PS. Suhpura, District Ballia, who has prepared Chik F.I.R, and Kaymi G.D has proved its carbon copy respectively as Ex. K-23 and Ex. K-24.
Defence witness - D.W 1 - Shamshad Ahmad.
The prosecution has adduced and produced the following documentary evidence:
1. Written Tehrir Ex. K-1.
2. Dying Declaration Ex. K-2.
3. Ex-ray report Ex. K-3.
4. Bed Head Ticket Ex. K-4.
5. Prescription of District Hospital Ex. K-5.
6. Papers regarding treatment and Injury report Ex.K - 6.
7. Pathological report Ex. K-7 and K-8.
8. Postmortem Report Ex. K-9.
9. Injury Report Ex. K-10.
10. Map Ex. K-11.
11. Burnt clothes of the deceased Ex. K-12,
12. Recovery memo of the clothes of accused persons Ex. K-13.
13. G.D regarding addition of Section 307 I.P.C, Ex. K14.
14. Charge-sheet Ex. K-15, under Sections 376 and 307 I.P.C.
15. Charge-sheet Ex. K-16, under Sections 376 (2) (g) /307/302 I.P.C.
16. Inquest and other papers with inquest report Ex. K17 and K-22.
17. Chik F.I.R and Kayami G.D. Ex K-23 and Ex. K-24.
18. Forensic Science Laboratory Report, Varanasi Ex. K - 25 that sperm were found on the underwear of the accused Pintu Yadav.
19. On the lower half of the accused - Anoop Yadav Ex. K – 26, certificate by P.W 7 Dr. K.C Rai before and after recording the Dying Declaration as Ex. K-27 and Ex. K-28.
20. Underwear, lower & T. Shirt of accused - Pintu Yadav and Anoop Yadav as materiel Ex. 1, 2, & 3.
21. Underwear, T. Shirt, Full-pant, Ganzi of accused Israr @ Mintu as material Ex. 4 to material Ex.7.
22. Burnt clothes of victim deceased and ashes material Ex. 8.
20. Statements under Section 313 Cr.P.C of the accused persons were recorded, wherein they denied the incident and allegations and contended that the case has wrongly been instituted against them and false evidence has been adduced by the prosecutrix on the instigation of family members. Accused Israr @ Mintu has produced written statement in addition to his statement under Section 313 Cr.P.C. that he has falsely been implicated in the present case due to political enmity. The prosecutrix had love relation with Chandan Gupta, due to which her father was badly defamed and he wanted to settle her early marriage. Smt. Shahida, sister of deceased's mother had come with a proposal of marriage of the prosecutrix. On 07.04.2011 informant, his wife and Smt. Shahida had gone to purchase clothes and ornaments proposed to be given at the time of proposal, being aggrieved of that, the deceased herself immolated and attempted to commit suicide. Thoughtfully taking advantage a false report was lodged at behest of the informant against appellant- Israr @ Mintu and accused persons.
21. All the appeals are being decided together in following manner:-
22. The learned trial court acquitted the accused persons from the charges under Sections 307 & 302 I.P.C. Section 307 I.P.C had been framed against the accused persons Pintu Yadav and Anoop Yadav on the ground that an attempt was made by the accused persons to kill the deceased by pressing her face with pillow. The lower trial court has concluded that the pillow was put on the mouth and nose of the deceased only to prevent her from making hue and cry at the time of rape. There was no intention to commit the murder. It was done so that the deceased could not shout at the time of rape. This Court finds this finding factually and legally correct and no counter appeal has been preferred from the side of the State or the informant. Therefore, this Court accepts the conclusion regarding the acquittal under Section 307 I.P.C of the accused persons.
23. So far as the acquittal under Section 302 I.P.C is concerned, the State or the informant have not preferred any appeal against the judgment and order of acquittal under Section 302 I.P.C. In this regard, the lower court has categorically discussed the dying declaration made by the deceased and also the statement of her parents P.W 1 and P.W 2, and came to the conclusion that the dying declaration of the prosecutrix regarding rape is proved and regarding committing murder by setting her on fire by the accused persons is incorrect and not proved.
24. In view of the statement of P.W-1 – and averments of first information report, the lower court has concluded that only that part of the dying declaration regarding offence under Section 376 (2) (g) is proved and regarding setting the victim on fire by the accused persons to commit murder is not proved rather an improvement, which is an after thought and has come after the victim meeting with the parents to make the allegations serious against the accused persons. It has already been noted that no appeal has been preferred by informant or by the State against acquittal under Section 302 I.P.C of the accused-appellants. Therefore this Court would not consider that part of alleged offence under Section 302 I.P.C and acquittal of the accused under Section 302 I.P.C. The Court is confined to the legality and illegality of the judgement and order of conviction of the accused appellant persons under Section 376 (2) (g) I.P.C.
25. All the above questions shall be dealt with and answered in the decision of this appeal.
26. (A) As per the F.I.R version, the occurrence took place on 07.04.2011 in the evening at about 07:00 p.m, F.I.R was lodged in Police Station – Sukhpura on 08.04.2011, at 12:00 p.m. naming all the accused persons and stating their specific role as to which accused had committed the offence and in which manner with the deceased. According to the prosecution version, the deceased aged about 17 years old, was alone in her house when all the three accused persons knocked the door and asked about her mother and when she informed them that her mother was out of station, then they got the door opened to wait for her mother, but when they entered into the house, accused Pintu Yadav and Anoop Yadav, bolted the house from inside and accused Israr Ahmad @ Mintu bolted the house from outside. They both raped the deceased, putting pillow on her mouth and nose to prevent hue and cry, threafter, they fled away from the incident. When the informant returned, his daughter narrated the whole story and thereafter he (informant) went to search the accused persons, after sometime he heard hue and cry and smoke rising from his house, then he returned immediately and found that deceased was burning and crying. He with the help of some villagers put out the fire and admitted her to the District Hospital, Ballia, carrying her in a Tempo. In the night her mother also reached from her Maika. On the next day, he narrated the whole story to Raju Warsi, who wrote the Tehrir, and he put his thumb impression and presented before the S.H.O, F.I.R was lodged and Chik F.I.R Ex. K-23 was prepared. This witness has proved the written Tehrir as Ex. K-1.
(B) Thus there is a plausible explanation of delay in lodging the F.I.R, as the informant was busy in treatment of the deceased and his wife (mother of the deceased) was also out of station.
(C) Delay in lodging the F.I.R is no ground to doubt the prosecution case, especially in the case of rape.
(D) In the case of Bable Vs. State of Chhattisgarh, A.I.R 2012, Supreme Court, 2621, Supreme Court held that it is settled law that an F.I.R registered under Section 154 Cr.P.C is not substantive peace of evidence. It is a document to accelerate the police machinery. If the scribe, who is not an eye-witness had not been examined, then it is not fatal for prosecution, and no adverse inference can be drawn. When the informant has proved the execution of the F.I.R by examining himself as P.W. (refer : Moti Lal Vs. State of M.P. 2008 (8) SCC Page 20 ).
(E) In the case of Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 S.C.C, 537, Supreme Court held that F.I.R is not encyclopedia of all the facts relating to crime. The only requirement is that at the time of lodging the F.I.R, the informant should state all those facts, which normally strike to mind and help in assessing the gravity of the crime or identity of the culprit briefly.
(F) In the case of Ram Das Vs. State of Maharashtra, (2007) 2 S.C.C 170, it is held that the mere delay in lodging an F.I.R about the incident of rape, is not by itself necessarily fatal to the prosecution case. But a belated report is a relevant fact which the Court must take notice.
(G) In the case of State of U.P. Vs. Manoj Kumar Pandey, A.I.R 2009 Supreme Court 711 (three Judges Bench) and in the case of Santhosh Moolya & Anr. Vs . State of Karnataka (2010) 5 SCC 445, [LQ/SC/2010/450] the Supreme Court held that normal rule that prosecution has to explain delay and lack of prejudice does not apply per-se to rape cases.
(H) In the facts of this case, the victim was hundred percent burnt, therefore, she was carried to the District Hospital by the informant and the informant was busy in her treatment attempting to save her life, therefore he was not having sufficient time to lodge the F.I.R on the same day. Lodging the F.I.R next day cannot be said to be a case of undue delay.
(I) In this case sufficient facts with regard to the commission of the offence has been mentioned in Tehrir on which ground the Chik F.I.R has been prepared and G.D entries made and proved. Though certain improvement have been made in dying declaration and in the evidence of P.W-2, (mother of the deceased), which shall be analyzed later on.
(J) In this case, the accused persons were well-known to the deceased, informant and mother P.W-2; they are named in the F.I.R with their parentage and specific role of each accused has been mentioned in the F.I.R. As per the F.I.R, dying declaration of the deceased and statement of the informant P.W-1, it has been established that at the time of incident, mother of the deceased had gone to her Maika (parental house), the informant had gone to Sukhpura to purchase vegetable and when he returned he found his daughter was weeping bitterly and he asked for the reason. She informed that Israr @ Mintu opened the door of the house on the pretext of meeting her mother, when she informed that her mother had gone to her maternal house then he said to open the door so that they may sit inside and wait for her mother. When she opened the door then accused Pintu and Anoop bolted the door from inside and accused Israr Ahmad @ Mintu stood outside and started monitoring of people. After committing the gang rape one by one, the accused persons ran away towards the west side and she started sobbing. The statement of the deceased to her father is admissible, reliable and acceptable under Section 6 and Section 32 of the Indian Evidence Act.
Section 6 of The Indian Evidence Act, 1972, reads as under :-
“6. Relevancy of facts forming part of same transaction.—Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration.
(A) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.”
27. The case rests on the direct evidence and dying declaration of the deceased, in such cases motive has no significance.
Even in cases based on circumstantial evidence at times motive has no significance.
In the case of G. Parshwanath vs. State Of Karnataka on A.I.R 2010 S.C. 2914 and in the case of Jagdish Vs. State of M.P. 2009 (67) ACC 295 SC, the Supreme Court held that it is true in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not correct. Absence of motive in a case based on circumstantial evidence is not of much consequence when chain of proved circumstances is complete.
In the case of Sanjeev Vs. State of Haryana (2015) 4 SCC 387 para 16, the Hon’ble Supreme Court has held that.
“It is settled principle of law that to establish an offence (murder) by an accused, motive is not required to be proved. Motive is something which prompts a man to form an intention. The intention can be formed even at the place of incident at the time of commission of crime. It is only either intention or knowledge on the part of the accused which is required to be seen in respect of the offence of culpable homicide. In order to read either intention or knowledge, the courts have to examine the circumstances, as there cannot be any direct evidence as to the state of mind of the accused”.
28. In this case D.W. 1 – Shamshad Ahmed, has been examined from the side of appellant – accused Israr Ahmad @ Mintu. D.W-1 deposed that the deceased was having love affair with Chandan Gupta of Sukhpura, she was student of Class 12 standard. Due to love affair between the deceased and Chandan Gupta, family of the informant was defamed in the village and in the area, therefore, sister-in-law of the informant came with a proposal of marriage of the deceased with another boy, and for making arrangement the informant and his wife and sister-in-law left the house for purchasing some clothes, sweets etc. Then a hue and cry was heard by him that house of the informant is on fire, people reached there, they found that the deceased was burning and some women neighbour of the house were extinguishing the fire with water; informant was the only man to reach there, thereafter, the villagers gathered and put the deceased on cot for carrying the deceased to District Hospital. The informant, his wife and sister-in-law reached the house and immediately victim was taken to District Hospital by a Tempo of Parashuram Chaudhary. Later, the deceased had died. Except the informant no other person of the village or woman who tried to save the deceased, has been examined. It has been established that first of all the informant reached the house alone and mother and Maushi of the deceased had not reached the house with him. After knowing the incident mother of the deceased reached the hospital, therefore, the defence version does not find support from the evidence of the prosecution and the circumstances.
It is admitted by D.W. 1 that he is a driver of Jeep (four wheeler), who leaves the house at between 6:00 to 6:30 a.m in the morning and plies Jeep from Ballia to Sikandarpur and returns home in the evening. It is also noteworthy that this witness is interested witness and accused Israr Ahmad @ Mintu is the son of his maternal uncle, therefore, he is giving a false evidence to save the accusedappellant Israr Ahmad @ Mintu. No independent witness in support of the accused persons have been examined. Therefore, the defence version that the accused persons had not committed gang rape and the prosecutrix tried to commit suicide by burning herself due to marriage being fixed with an another person is not proved and is also not acceptable and creditworthy. In the Indian context normally no person will falsely make his unmarried girl child victim of rape to bring disrepute to herself and his family.
For want of any other oral or documentary evidence, it is also not proved that the informant or the victim had any reason or ground to falsely implicate the accused persons. The deceased before her death, has given a dying declaration to P.W. 3 - Bhandari Prasad, Nayab Tehsildar, that accused Pintu Kumar Yadav and Anoop Yadav after bolting the house from the inside raped her one by one while accused Israr @ Mintu locked the door from outside to provide them convenience.
P.W 5. Dr. Manju Singh, District Women Hospital, Varanasi, has proved that male sperm had been found, in the vaginal smear of the deceased. She has deposed that on 07 April, 2011 at about 8:50 p.m., victim was brought to District Hospital, Ballia, who died at 12:00 O’ clock on 08 April, 2011, while giving a statement she was speaking, which establishes that she was in a position to give dying declaration.
Thus the motive behind the commission of crime is apparent and obvious that the deceased was a young girl and alone in the house, therefore, the accused persons found an opportunity to fulfil their desire and committed gang rape.
29. On 09 April, 2011 at about 11:30 a.m, inquest proceeding was conducted by the Police, her body was hundred percent burnt with medicine layer on her body and the dead body was sent for postmortem. Before her death she was admitted in District Hospital, Ballia, and was treated by the P.W-7 Dr. K.C. Rai in emergency, where she was brought in hundred percent burnt conditions. Bed Head Ticket and Injury Report have been proved as Ex. K-5 and Ex. K-10. As per Medico Legal Examination Ex.K-6, her hymen was found with inverted tag, vagina admitted one finger easily, vaginal smear was taken and the same was sent for pathological examination for presence of spermatozoa. The x-ray was done of her right elbow and right wrist joints for determination of her age and as per the supplementary report Ex. K-7, she was found to be above 18 years, sperms were also found in pathological report; Dr. Manju Singh opined that possibility of rape could not be ruled out.
30. As per postmortem report superficial to deep burn wound was present on all over the body and the death was due to septicemic shock as a result of anti-mortem burn injury. Report Ex. K-25 of Forensic Laboratory U.P. Police Line, Varanasi, reported that sperm was found on the underwear of the accused Pintu Yadav and as per report Ex. K 26 male sperm were also found on the half lower of the accused Anoop Yadav. Thus, the commission of crime of rape by the accused persons namely Pintu Yadav and Anoop Yadav is also confirmed from the medical evidence. The learned counsel for the appellants was specifically confronted with the report to explain on instructions from the appellants, the learned counsel submits it is a case of false implication.
31. So far as the role of accused-appellant Israr @ Mintu is concerned, as per the F.I.R, first of all Israr @ Mintu, in the evening at 07:00 O’ clock came and said for opening the door to meet the mother of the deceased, when the deceased said that she has gone to her maternal uncle’s house then he insisted to open the door, they shall sit down inside the house and they shall wait her. When the door was opened, Mintu, Pintu and Anoop entered the house and locked the door from inside. Pintu and Anoop raped the deceased in turn. During that time the door of the room was locked from the outside by the accused Israr @ Mintu and he was standing outside the house of the informant and as watchman he was monitoring the people passing by. On the noise Pintu and Anoop ran away to the west side and Israr @ Mintu had also ran away. Knowing the said incident, informant went to the village to find Israr @ Mintu, Pinto and Anoop, and on reaching some distance from the house, he heard hue and cry and saw smoke rising from his house, he came back and saw that his daughter Zareena Khatoon (deceased) was burning and screaming; he with the help of the villagers put out the fire and after loading the victim in burnt condition, by the Tempo admitted her to the Sadar Hospital, Ballia, for her treatment. He also informed his wife, who reached the hospital in the night. Next day he went to Sukhpura and got Raju Warsi who wrote Tehrir on his narration and thereafter he put thump impression on the Tehrir and lodged the F.I.R.
Thus as per the F.I.R version accused Pintu Yadav and Anoop Yadav committed gang rape physically with the deceased with the help of the accused Israr @ Mintu providing protection to rest of the accused persons before her burning and death. He got opened the door being member of her community taking her into confidence and after entry of the two accused persons he bolted the door from the outside and started monitoring the people. On these facts, he has also been implicated as accused and member of gang rape, but according to the accused Israr @ Mintu, he has been falsely implicated on account of village rivalry and litigation, but no such direct litigation or rivalry has been found between the informant and the accused– Israr @ Mintu so that informant would falsely implicate him in the aforesaid crime.
It has already been concluded that D.W 1- Shamshad Ahmed is not a credible and independent witness as he is the maternal brother and son of maternal uncle of the accused Israr @ Mintu.
32. Under Section 376 (2) (g) I.P.C, gang rape has been defined, which is as under:-
Section 376 (2) (g) I.P.C, whosoever
“(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3. —“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]”
From bare perusal it is clear that in furtherance of a common intention to commit gang rape, if it is proved, that one or more persons had constituted a group or had formed a gang and each of them were acting in furtherance of the common intention of the said gang, then each member of the gang shall be deemed to have committed the offence of rape and shall be punished as provided above. Therefore, from the bare provision of Section 376 (2) (g), it is clear that actual rape by all member of the gang is not necessary.
In Bhupinder Sharma Vs. State of Himanchal Pradesh, AIR, 2003 S.C, 4684, Supreme Court held that where more than one accused has completed the act of rape, in will constitute a ‘gang rape’ and as per explanation of Section 376 I.P.C, it is not necessary for the prosecution to adduce proof that everyone of the gang had actually raped the victim. Every member of the gang rape acting in furtherance of common intention of the group has to be awarded minimum sentence of 10 years rigorous imprisonment as stipulated in Section 376 (2).
33. From the evidences of P.W 1, P.W 2 and Dying Declaration of the deceased, it is established that accused Israr @ Mintu, firstly got the door of the house of the victim opened and when the accused-appellant Anoop and Pintu Yadav entered the house, he bolted the door of the house from outside and started monitoring and only after commission of crime all the accused-appellants disbursed and ran away. Therefore, it can not be said that accused Israr @ Mintu would not be considered to be member of gang rape because he not only facilitated the other accused persons in physically raping the victim but also opened the door after commission of crime when the victim started screaming and made hue and cry. Such active role played by him shall not exonerate him from the liability.
The role of the accused Israr @ Mintu is very much enumerated in Tehrir Ex. Ka-1 and Chik F.I.R Ex. Ka- 23. This Court has already concluded that the narration of the deceased to her father informant P.W 1 – Nazeem Ansari, is relevant and admissible in evidence under Section 6 of the Indian Evidence Act.
The deceased has also narrated the story of gang rape to the informant P.W-1 and her mother P.W-2, and the I.O before her death, therefore her statement to her parents shall also be taken into account as dying declaration under Section 32 of the Indian Evidence Act.
34. P.W 1 – Nazeem Ansari has deposed that on the fate-full day his wife had gone to her parental house and he had gone to Sukhpura to purchase vegetable etc. leaving the deceased alone in the house and when he returned at about 07:00 p.m in the evening, he found that his daughter was sobbing and when he asked the reason, she narrated the whole story of the incident that Israr @ Mintu knocked the door and asked to meet her mother and when she informed that she had gone to the house of maternal uncle then he insisted to open the door with the averment that they shall wait for her mother inside the house. After opening the door all the three persons entered into the house and Pintu and Anoop bolted the door from inside and Israr @ Mintu after coming out bolted the door from out side and two offenders inside the house raped her in turn. Accused Israr @ Mintu was standing outside the house and locked the door from outside and was monitoring the people passing by the road and when she made hue and cry, the accused persons ran away, and when he (complainant) went to the village to search for the accused persons, his daughter put herself on fire then he returned and with the help of villagers put out the fire and carried her to District Hospital by Tempo.
This witness has not deposed that his daughter was burnt by accused persons.
35. P.W. Sobra Begum, mother of deceased, has deposed that her daughter told that Mintu and Anoop of the village had done bad deeds with her and set her on fire by sprinkling kerosene oil; on information her husband took his daughter to the District Hospital, Ballia, in a burnt state and she also went the hospital there and when her daughter became conscious she told her all the things at 12:00 in the night about the said incident. In cross-examination she accepted that her daughter had not told that accused persons had burnt her, but victim herself after pouring kerosene oil burnt herself.
During the course of cross-examination, she admitted that in her statement recorded under Section 161 Cr.P.C, she had stated to the I.O that her daughter had told her that when her father came, she was weeping due to humiliation and misery. When her father asked the reason, she narrated the wrong done by the accused persons, and when her father left the house to find accused – Israr @ Mintu, Pintu and Anoop, then due to humiliation and insult, after pouring kerosene oil on her body she put herself on fire, her whole body started burning, she started crying and shouting, on which people came and put out the fire and took her to the Hospital. She also admitted that earlier she had not given any statement that the accused had burnt her daughter by pouring kerosene oil.
Thus from the averments of the F.I.R and from the statements of informant P.W 1 and P.W. 2, the truthfulness has come before the Court that the accused persons had committed the offence of gang rape and not the murder of the deceased by pouring kerosene oil.
36. P.W 3 Nayab Tehsildar Bhandari Prasad, had written the dying declaration of the deceased. According to this witness before recording the statement P.W-7 Doctor Krishna Chandra Rai had given the report that the victim was in position to give her statement, then he started recording the statement. According to him the victim narrated that two boys Anoop Yadav S/o Laxmi Yadav and Pinto S/o Suraj Yadav started chasing her when she had gone for defecation, to escape she ran inside the house, Israr Ahmad @ Mintu S/o Saleem Ansari and other accused persons entered and closed the door, after which both of them raped one by one. She tried to shout, they closed her mouth and burnt her by spraying kerosene oil. Her father had admitted herself in District Hospital in a burnt condition. After recording the pre-death statement of the deceased, the concerned Medical Officer has certified her to be fit and conscious during the statement. This witness has proved the dying declaration as Ex. K-2.
37. A question was put this witness (P.W-3) that whether he asked the deceased from where the kerosene oil was brought in. The witness answered no. Victim herself had told that in the house, there was kerosene oil. He admitted that he has not written that there was kerosene oil in the house. He admitted that the deceased did not tell him as to who had come to save her from getting burnt. He admitted that the deceased did not tell him, which person poured the kerosene oil upon her.
38. The accused appellants have also heavily relied upon the statement of P.W 4 Dr. R.N. Upadhyaya, Senior Surgeon of District Hospital, Ballia, in cross-examination he has admitted that the patient was hundred percent burnt, she was not conscious. He had given information on the same day to take pre-death statement, but he has admitted that before taking the dying declaration, Executive or Judicial Magistrate had not contacted him about the patient's condition.
We find that another Doctor Krishna Chandra Rai - P.W-7, who first of all attended the injured in emergency ward, had examined the deceased before taking her statement and had found herself fit to give statement, therefore, the fact that especially Dr. R.N. Upadhyaya, was not contacted and another Doctor has given the certificate about the mental condition of the deceased is no ground to throw away the dying declaration recorded by P.W. 3.
39. In the case of Laxman Vs. State of Maharashtra, (2002) 6 SCC 710 [LQ/SC/2002/870] (Five Judge Bench), it is held that no statutory form for recording dying declaration is necessary. A dying declaration can be made verbally or in writing by any method of communication like sign, word or otherwise provided the indication is positive and definite.
In this case, it is held that a dying declaration can be made by the declarant even verbally. Reducing the dying declaration to writing is not mandatory. The certificate by Doctor as to mental fitness of the deceased is not necessary because the certificate by Doctor is only a rule of caution. Voluntary and truthful nature of the declaration can be established otherwise also.
40. In Raju Dewada Vs. State of Maharashra, A.I.R 2016, Supreme Court 3209, It is held that mere absence of certificate of Doctor would not render the Dying Declaration unreliable particularly when the Doctor was not present in the Hospital at the relevant time.
41. Considering the principles laid down in the above decisions, this Court finds that at the first instance deceased had made dying declaration to her father informant P.W 1 and thereafter to her mother P.W 2 and the I.O. P.W-8 Ashok Singh Yadav and thereafter to the Nayab Tehsildar P.W. 3. In all these dying declarations, the whole story regarding rape and role of the accused persons is intact and without any infirmity which also finds support from the medical evidence which confirms presence of spermatozoa in her vaginal smear and on the clothes of the accused – Pintu and Anoop Yadav.
42. In Narendra Kumar Vs. State of N.C.T of Delhi, A.I.R 2016, Supreme Court 150, it is held that where the dying declaration recorded under Section 32 of Indian Evidence Act, did not contain signature or thumb impression of the deceased and alleged to be in violation of the guide lines issued by the Delhi High Court, it has been held that defect in following guideline is of trivial in nature. The dying declaration otherwise proved by ample evidence can not be rejected.
43. P.W 7 - Dr. Krishna Chandra Rai, had examined the deceased before recording her dying declaration by P.W. 3 - Nayab Tehsildar and has deposed that on medical check-up of the deceased, before writing the statement she was fully conscious. She was fully conscious during the recording of the statement. He had written both the certificates in his own handwriting and signed on it and put the Government Seal. He has proved his signature and seal and mode of writing of the dying declaration. He deposed that he has given certificate at the top of the statement and also at the bottom of the statement. The certificates given by this Doctor witness has been exhibited as Ex. A-27 and Ex. A-28 respectively.
In this case, the Doctor has given certificate at 12:00 O' clock that the patient is fully conscious and is in a position to give her statement. After recording the statement the concerned Doctor has again given certificate at 12:10 p.m. that during the statement of the patient, she was in full consciousness. Therefore, so far as the dying declaration regarding the commission of crime under Section 376 (2) (d) I.P.C is concerned, it is proved from the dying declaration statement and from the statement of the informant P.W. 1 which is also admissible under Section 6 and Section 32 of the Indian Evidence Act. The statement of mother P.W 2 and I.O. P.W-8 and also from the report of Forensic Laboratory, that sperms were found on the underwear and half lower of the accused persons and sperms in the vaginal smear of the deceased.
44. The question that arises is regarding part of the dying declaration made by the deceased regarding her being burnt. According to the prosecution, the accused persons ran away after committing the crime of rape. The deceased was sobbing at her house and when her father informant P.W 1 reached his house and asked the reason of sobbing, she narrated the story regarding the gang rape and thereafter P.W-1 left the house for searching the accused persons, after few moment he saw smoke rising from his house. He returned, he found that the deceased had put herself on fire. It is pertinent to mention here that the deceased suffered hundred percent burn injury when she was admitted in District Hospital, Ballia, P.W-4 - Dr. R.N. Upadhyaya, visited her in emergency room, thereafter, she was laid at Bed No. 14 of the Surgical Ward and treatment was started. He had questioned the deceased on 08.04.2011, in response she said that she has been raped for which she was sent for medical examination at the Women's Hospital, Ballia.
45. From the above statement of this witness it has been established that even having suffered hundred percent burn injury, the deceased was able to speak and narrate the whole story of the incident, which happened with her. Therefore, it cannot be said that on 08.04.2011, she was unable to give her statement before the concerned Magistrate. From the evidence of this witness, it is also established in favour of the accused persons that they had not set her on fire. They have only raped the deceased. It is also noteworthy that from the evidence that it is not established that the accused persons had come with kerosene oil. They were not aware that where the kerosene oil was kept in the house of the informant, therefore, it cannot be said that after commission of rape all the three persons entered the house, they searched for the kerosene oil and after finding it they poured the kerosene oil upon the deceased and that they were also having match box, or obtained it from her house to put the deceased on fire. From the above facts and circumstances of the case, it is again proved that the accused-appellants have not committed murder by pouring kerosene oil upon the deceased and setting her on fire.
46. Though, this witness (P.W-4) has admitted this fact in his cross-examination that patient suffering hundred percent burnt generally is not able to understand anything, but this witness has refused and denied the suggestion from the accused persons that he has wrongly written on the dying declaration of the deceased being conscious to give statement. This witness in crossexamination has deposed that though the deceased was restless when she came to the hospital, but he has not found that she was unconscious. Being an unconscious patient and being a restless patient both are quite different stage of physical and mental status of a person.
47. From the statement of P.W. 8 - I.O. Ashok Singh Yadav, it is quite clear that deceased was able to give statement even on 08 April, 2011. After recording the statement of the informant and his wife Smt. Sobra Begum, he recorded the statement of the deceased, who was admitted in District Hospital, Ballia on Bed no. 14 of ward no. 8 and made statement part of the case diary. According to him the victim in her statement stated that when she was inside of her house, Israr @ Mintu called her for opening the door, after hearing his voice she recognized him and opened the door. Immediately thereafter Pintu Yadav and Anoop Yadav came inside and Israr @ Mintu closed the main door and started monitoring. These two accused persons after locking the door from inside raped the victim alternatively. The statement recorded under Section 161 Cr.P.C given by the deceased before her death to the I.O of the case, is also a dying declaration. In this statement the deceased has not said that the accused persons had also put her on fire, but said that they had only raped her. The statement given by the injured to the I.O, statement by her to her father informant P.W 1 and the mother P.W-2 and the version of Tehrir Ex. K-1 will be taken as dying declaration. Though the statement of any witness recorded under Section 161 Cr.P.C is not a substantive piece of evidence, but if the injured person dies after giving the statement under Section 161 Cr.P.C, such statement shall be considered as dying declaration under Section 32 of the Indian Evidence Act. In case, the person survives, it would be only a corroborative piece of evidence under Section 157 of the Indian Evidence Act.
48. In Gulab Singh Vs. State of U.P. (2003) 47 A.C.C 161 Division Bench of Allahabad High Court, upon noting the fact that the victim lodged an F.I.R and the I.O. of the case recorded his statement under Section 161 Cr.P.C before his death. The victim and witnesses recognized the accused persons in the night. The accused was the grandson of the deceased, dying declaration was corroborated by ocular witnesses; the Investigating Officer and Constable recorded his statement under Section 161 Cr.P.C which was found worthy to be relied on as dying declaration.
In the facts of the present case, recording the statement of the injured under Section 161 Cr.P.C is almost similar to the above cited case except the other facts of the case. In Gulab (supra) the deceased had also lodged an F.I.R, but in the present case on the narration of the story by the deceased, her father has lodged the F.I.R, and the I.O. of the case has recorded the statement of the deceased before her death, which is admissible in evidence as dying declaration under Section 32 of the Indian Evidence Act. This witness has also deposed that the deceased had also given statement that before leaving the house the accused persons had threatened that if she will come out they will kill her but after that they threw kerosene oil on her body, which was kept in the house with the intention of killing her and applied match stick which was kept next to her and burnt her and ran away after closing the door.
49. The deceased has given similar statement to P.W 3. Bhandari Prasad, Nayab Tehsildar. According to the Court, the part of the statement regarding immolation of the deceased by accused persons by pouring by kerosene oil and putting her on fire is doubtful and does not find support from the averment of the F.I.R and the statement of informant P.W 1, thus, it can be said and concluded that when the victim met her mother, to enhance the gravity of the offence, deceased has given statement regarding Section 302 I.P.C against the accused persons, which appears doubtful.
50. Now the question arises as to whether part of the statement of dying declaration regarding commission of gang rape is admissible and reliable or not, and if the Court finds that part of the statement of dying declaration is incorrect then whether the whole dying declaration can be thrown away and can be said to be unreliable. This aspect has been dealt with by the lower court. It is true that the death of the deceased is not accidental. In this context, the lower court has discussed several rulings, including, Shakuntala Devi Vs. State of Haryana 2008, Dand Nirnaya Sangrah 741, wherein it is held that neither there is rule of law nor a rule of wisdom that a dying declaration cannot be acted upon without confirmation.
51. The learned trial court has discussed the position that when part of the dying declaration is proved and other part is doubtful then what would be the correct position of law. In this regard, the learned trial court has referred Godhu Vs. State of Rajasthan, A.I.R 1974 S.C. 2188, wherein it is held that if a part of the dying declaration is true and one part is false in such a situation if only part of the truth is corroborated by an another evidence, such part of truthful dying declaration can be relied on for conviction.
52. In George Kutty Vs. State of Kerala, 1992 Cri.L.J. 1663, it is held that if part of dying declaration is corroborated by an another evidence, then the same shall not be dispensed with merely on the ground that one part of the dying declaration is false.
The dying declaration of the deceased regarding gang rape by the accused persons has been reiterated in her statement to her parents, I.O. or Magistrate and this fact is duly corroborated by the medical evidence and the report of Forensic Science Laboratory.
53. P.W 5 - Dr. Manju Singh, has also given evidence that there is possibility of rape. Sperm was found in the vaginal smear of the deceased and on the underwear of the accused - Pintu Yadav and half lower of the accused - Anoop Yadav. Therefore, this part of her statement, which is supported and backed by medical evidence, forensic laboratory report and the evidence of other oral and documentary evidence is acceptable.
54. So far as her evidence regarding burning of the deceased by accused persons is concerned, that part of her statement does not find support from any other evidence, accordingly, that part of the dying declaration has to be discarded being doubtful.
55. P.W 1 has given statement that when he reached at the house, he found his daughter alive and sobbing and after knowing the names of the accused persons, he went to search them, then victim set herself on fire. Therefore, the learned trial court has rightly acquitted the accused persons under the charge of Section 302 I.P.C. Similarly, as per the evidence, the accused persons put pillow on the mouth of the victim at the time of rape, but it was not to commit murder, rather it was for the purpose to prevent the victim from screaming and making hue and cry, therefore, the learned trial court has rightly acquitted the accused persons from the charge under Section 307 I.P.C.
56. So far as the charge under Section 376 (2) (g) I.P.C is concerned, before the amendment of Section 376 I.P.C, vide Criminal Law Amendment Act, 2013, Section 9 with effect from 03.02.2013, ‘gang rape’ was described in Section 376 (2) (g) I.P.C, providing minimum ten years’ rigorous imprisonment, which may extend for life and shall also be liable to fine, was provided.
In this regard explanation no. 1 is relevant, which reads as under:-
Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the person shall be deemed to have committed gang rape within the meaning of this Sub Section.
From perusal of the explanation, it is crystal clear that there is no requirement of law to commit rape physically by all persons of the group, acting in furtherance of their common intention. In the present case, it is established from the oral, documentary and medical evidence that accused – Pawan and Pintu committed rape with the deceased and accused Israr Ahmad @ Mintu facilitated them, got the door of the victim opened and after entrance of the two accused persons in the house he bolted the door from the outside of the house and monitored the people to facilitate the commission of gang rape, therefore, the act of gang rape committed in furtherance of common intention by all three accused persons is covered under the definition of gang rape and even the accused Israr Ahmad @ Mintu shall be held guilty of gang rape.
57. In the case of Raja Vs. State of Karnataka, (2016) 10 S.C.C 506; State of U.P. Vs. Chhotey Lal, A.I.R 2011 S.C 697 and Santosh Moolya Vs. State of Karnataka, (2010) 5 S.C.C 445, the Supreme Court held that :-
"In a case of rape, testimony of prosecutrix stands at par with that of an injured witness. It is really not necessary to insist of corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible. An accused can be convicted on the basis of sole testimony of the prosecutrix without any further corroboration provided the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. Woman or girl raped is not an accomplice and to insist for corroboration of the testimony amounts to insult to womanhood. On principle the evidence of victim of sexual assault stands at par with evidence of an injured witness just as a witness who has sustained an injury (which is not shown or believed to be selfinflicted) is the best witness in the sense that he is least likely to exculpate the real offender. The evidence of a victim of a sexoffence is entitled to great weight, absence of corroboration notwithstanding. Corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases but such evidence cannot be expected in sex offences having regard to the every nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from rules devised by the courts in the western world. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence as a general rule, there is no reason to insist on corroboration except from the medical evidence where having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to this qualification that corroboration can be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having leveled such an accusation on account of the instinct of selfpreservation or when the probability factor is found to be out of tune. "
58. In the present case there is no need to apply the provisions of Section 114-A, which provides presumption of absence of consent because accused persons have not taken the plea that it was a consensual cohabitation but have denied the charges. From the evidence on record it has been fully proved that the accused appellants have committed gang rape with the deceased against her will before her death. In Mohd. Iqbal & Anr. Vs. State of Jharkhand, A.I.R 2013 SC 3077, [LQ/SC/2013/793] Supreme Court held that in a case of gang rape under Section 376 (2) (g) of the I.P.C, consent of victim of gang rape cannot be presumed but its absence shall be presumed.
59. In India the Maxim Falsus in Uno Falsus in Omni Bus does not apply, meaning thereby, if part of the evidence of a witness is incorrect and part of the evidence is correct then the whole evidence cannot be thrown out and the correct part of evidence shall be taken into account. Since the dying declaration statement of the deceased has been considered as evidence under Section 32 of the Indian Evidence Act and her statement to her father (informant) P.W 1 under Section 6 of the Indian Evidence Act has also been considered by lower court, therefore, applying this principle, the learned trial court has concluded that part of the statement of the victim-deceased regarding the crime of gang rape is correct and acceptable, but the other part of her evidence regarding causing burn injury by pouring kerosene oil by the accused persons is incorrect.
60. This Court is in-conformity with the conclusion of learned trial court and affirms the finding that the accused-appellants had not burnt the deceased after the incident of gang rape, because when the informant (father) P.W. 1 came to his home, he found his daughter alive and sobbing, she narrated the whole story that the accused persons committed the offence under Section 376 (2) (g) I.P.C, and when P.W-1 went to search the accused persons, after some time she poured kerosene oil and set herself on fire, later she succumbed to the injury during the course of treatment in hospital. Therefore, the allegations regarding Section 302 I.P.C has not been proved. This Court has already discussed this aspect and also the aspect regarding Section 307 I.P.C.
61. The Investigating Officer had not submitted charge-sheet under Section 306 I.P.C, considering that the deceased has committed suicide on abatement by the accused persons, neither the accused persons have been convicted under the aforesaid Section nor the State has preferred any appeal regarding the acquittal of the accused-appellants under Sections 307 & 302 I.P.C.
This Court is of the opinion, that it is a case of selfimmolation, because in the case of burning by others, the person tries his best to escape, resist and save himself unless he is not unconscious or helpless by any means. But if he is committing suicide by self-immolation, it is probable that hundred percent burn may occur, as in this case. Therefore, this Court is confined to the conviction and sentencing order passed under Section 376 (2) (g) I.P.C challenged by the accused appellants.
62. From the above discussions, it is fully established that accused persons committed gang rape and they were rightly convicted and sentenced by the learned trial court. The accused persons committed rape with the victim-deceased very cleverly, cunningly and to avoid public shame the victim-deceased committed suicide. Only for a momentary bliss the accused persons ruined the life of deceased and forced herself to commit suicide.
In Moti Lal (supra), the Supreme Court citing Para 12 of the Judgment in Dinesh Vs. State of Rajasthan, (2006) 3 SCC, 771 [LQ/SC/1978/358] , has expressed an opinion about the quantum of punishment that would be appropriate in the case of rape. The relevant part is extracted :-
“The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, married women and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum….. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced.”
Therefore, the sentence of life imprisonment and a fine of Rs.50,000/- imposed on each accused by the learned Trial Court can not be said to be excessive or penal.
Thus, the appeals fail and are liable to be dismissed accordingly.
All the aforesaid Criminal Appeals Nos. 4875 of 2014 - Ishrar Ahmad Alias Mintu Vs. State of U.P., Criminal Appeal No. 4713 of 2014 - Anoop Yadav vs. State of U.P. and Criminal Appeal No. 1844 of 2015 - Pintu Yadav Vs. State of U.P. are hereby dismissed. The conviction order and sentence awarded by the learned Trial Court, is hereby affirmed.
A certified copy of this order be sent for compliance to the learned Trial Court, as well as, to the concerned Jail Superintendent.
Registry to return the Lower Court Record alongwith the copy of this order.
