# Dhermendra Yadav v. State of U.P. & Anr

- **Citation:** (2021) 7 ILRA 274
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-28
- **Case number:** Bail No. 6572 of 2020
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhermendra-yadav-v-state-of-u-p-anr-47086
- **Pages:** 11

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 439 - bail -
Indian Penal Code, 1860 - Sections
302/328/376D
-
Gang
rape
-
The
Protection
of
Children
from
Sexual
Offences (POCSO) Act, 2012 - Sections
5/6 , Section29 - presumtion as to
certain offences - Section30 - Scheduled
Caste and Scheduled Tribe (Prevention
of Atrocities) Act, 1989 - Section 3(2)(5)
- merely because the Forensic Science
Laboratory report is inconclusive, it is
not
necessary
that
the
irresistible
conclusion is only one that the accused
is
not
guilty
(Rajendra
Pralhadrao
Wasnik v. State of Maharashtra) .(Para -
26)

(B) Criminal Law - The Indian Evidence
Act, 1872 - Section 32 (1) - Cases in
which statements of relevant fact by
person who is dead or cannot be found,
etc., is relevant - When it relates to
cause of death - narration of incident to
the father and other witnesses is dying
declaration - need no corroboration, if
the statement is convincible with other
evidence - narration by victim is
sufficient to be a statement disclosing
the cause of her death - no reason to
disbelieve the said statement, if read
alongwith the report of Forensic Science
Laboratory .(Para - 16)

Incident of brutal and aggravated sexual
assault on a minor girl - committed rape -
administered
forcibly
poison
-
behaved
inhumanly by filling up her vagina with soil -
belongs to a poor and down trodden family,
suffering trauma - victim girl died - police of
the
locality
behaved
apathetically
with
insensitive inaction on it's part - accused
persons
named
by
deceased-victim
and
reported to the police by her father -
Special Court, POCSO Act come into action -
allowed application under Section 156(3) of
Cr.P.C. - F.I.R. registered.(Para - 10)

HELD:- In view of the observation of Hon'ble
the Supreme Court in Rajendra Pralhadrao
Wasnik v. State of Maharashtra it can be
said that whatever stated in dying declaration
by the deceased with regard to the cause of
her death and the commission of gang rape
upon her, told to her mother, father and
uncle, deserves to be believed and relied on
with credibility. Manner in which the offence
is committed, the nature and conduct of the
accused-applicants, all are sufficient to raise
apprehension of abusing their liberty in case
of release on bail in adversely affecting
witnesses and the family of the victim's so as
to effect the trial. (Para - 26,27,31)

Bail a

## Text

274 INDIAN LAW REPORTS ALLAHABAD SERIES
manufacturing of forged and fictitious
documents, account book etc. under garb of
misrepresentation of above committee was
said in first information report. This first
information report was investigated and
ultimately
charge-sheet
for
offences
punishable under section 419, 420, 467, 467,
471, 406 IPC was filed before the Court of
Judicial Magistrate, wherein cognizance was
taken. The applicants moved before the Court
of Sessions Judge, Aligarh with a prayer for
grant of anticipatory bail and this was heard
and denied by the Court of Sessions Judge,
Aligarh in Anticipatory Bail Application No.
758 of 2021 vide order dated 2.2.2021. Again
there was an application under section 482
Cr.P.C. No. 18049 of 2020 moved with a
prayer for setting aside criminal proceeding
and it was denied by this Court vide order
dated 28.1.2021 and it was held that there
was substance for alleged commission of
cognizable offence in the material placed on
record.

6. The second round of anticipatory
bail has been moved by way of this
application before this Court, whereas
cognizance has been taken on 28.2.2020.
Wherein the present applicants have been
charge- sheeted for the offences punishable
under section 420, 467, 468, 471, 406 IPC of
Police Station Civil Line, District Aligarh.
Charge-sheet is at page No. 38 of paper
book. The offences alleged to be committed
by applicants, including misrepresentation
about
registration
of
District
Cricket
Association, Aligarh and applicants being
office bearer of above association which was
neither registered with Registrar Chit Fund
Societies, Agra nor any office bearer-ship
was there. Rather, Secretary of District
Cricket Association has already filed a civil
suit No. 554 of 2016 against applicants and
one other with the same accusation that
defendants including the present applicants
were misrepresenting themselves to be a
member of District Cricket Association,
Aligarh and their activities of deceiving
money in the name of District Cricket
Association, Aligarh, manufacturing and
fabricating documents and register were also
result of forgery. This civil suit was filed by
Aligarh District Association through its
Secretary, Pradeep Singh who was said to be
registered
society
under
Registrar
of
Societies Chit Fund, Agra with specific
registration No. 0747/1996-97. The same
accusation is here in this criminal case.
Hence, deceit, manufacturing of forged and
valuable securities, receiving of money
under the guise of misstatement, criminal
breach of trust with regard to above trusted
money etc. and deceit with public at large,
including cricketers of District Aligarh are
heinous offences, requiring no indulgence
by this Court in granting anticipatory bail
under section 438 of Cr.P.C.

7. Considering all these essential
ingredients and parts of the consideration laid
down by Hon'ble Apex Court, but without
commenting on merits, later on to be seen by
trial court on the basis of evidence, this
application merits dismissal. Dismissed, as
such. .
----------
(2021)07ILR A274
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.07.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Bail No. 6572 of 2020
with
Bail No. 6614 of 2020

Dhermendra Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties
7 All. Dhermendra Yadav Vs. State of U.P. & Anr.
275
Counsel for the Applicant:
Dhirendra Pratap Singh, Ajay Kumar Singh,
Vijay Pratap Singh

Counsel for the Opposite Parties:
G.A., Jaikaran

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 439 - bail -
Indian Penal Code, 1860 - Sections
302/328/376D
-
Gang
rape
-
The
Protection
of
Children
from
Sexual
Offences (POCSO) Act, 2012 - Sections
5/6 , Section29 - presumtion as to
certain offences - Section30 - Scheduled
Caste and Scheduled Tribe (Prevention
of Atrocities) Act, 1989 - Section 3(2)(5)
- merely because the Forensic Science
Laboratory report is inconclusive, it is
not
necessary
that
the
irresistible
conclusion is only one that the accused
is
not
guilty
(Rajendra
Pralhadrao
Wasnik v. State of Maharashtra) .(Para -
26)

(B) Criminal Law - The Indian Evidence
Act, 1872 - Section 32 (1) - Cases in
which statements of relevant fact by
person who is dead or cannot be found,
etc., is relevant - When it relates to
cause of death - narration of incident to
the father and other witnesses is dying
declaration - need no corroboration, if
the statement is convincible with other
evidence - narration by victim is
sufficient to be a statement disclosing
the cause of her death - no reason to
disbelieve the said statement, if read
alongwith the report of Forensic Science
Laboratory .(Para - 16)

Incident of brutal and aggravated sexual
assault on a minor girl - committed rape -
administered
forcibly
poison
-
behaved
inhumanly by filling up her vagina with soil -
belongs to a poor and down trodden family,
suffering trauma - victim girl died - police of
the
locality
behaved
apathetically
with
insensitive inaction on it's part - accused
persons
named
by
deceased-victim
and
reported to the police by her father -
Special Court, POCSO Act come into action -
allowed application under Section 156(3) of
Cr.P.C. - F.I.R. registered.(Para - 10)

HELD:- In view of the observation of Hon'ble
the Supreme Court in Rajendra Pralhadrao
Wasnik v. State of Maharashtra it can be
said that whatever stated in dying declaration
by the deceased with regard to the cause of
her death and the commission of gang rape
upon her, told to her mother, father and
uncle, deserves to be believed and relied on
with credibility. Manner in which the offence
is committed, the nature and conduct of the
accused-applicants, all are sufficient to raise
apprehension of abusing their liberty in case
of release on bail in adversely affecting
witnesses and the family of the victim's so as
to effect the trial. (Para - 26,27,31)

Bail applications rejected. (E-6)

List of Cases cited:

1. Shama Vs St.of Har., (2017) 11 SCC 535

2. Sudhakar Vs St.of M.P., (2012) 7 SCC 569

3. Bharwada Bhoginbhai Hirjibhai Vs St.of Guj.,
(1983) 3 SCC 217

4. Rajendra Pralhadrao Wasnik Vs St.of Mah.,
(2019) 12 SCC 460

5. Sudha Singh Vs The St. of U.P. & anr., AIR
2021 SC 2149

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.

1. These two bail applications for
releasing the accused persons on bail are
moved before this Court under Section 439
of the Cr.P.C..

2. The accused-applicants, Pankaj
Kori
in
Criminal
Misc.
Application
No.6614 (B) of 2020 and Dhermendra
276 INDIAN LAW REPORTS ALLAHABAD SERIES
Yadav in Criminal Misc. Application
No.6572 (B) of 2020 are involved in Case
Crime
No.08/2020,
under
Sections
302/328/376D of I.P.C., Sections 5/6 of
POCSO Act and Section 3(2)(5) of
S.C./S.T. Act, registered at Police Station
Fursatganj, District Amethi.

3. The accused-applicants, Pankaj Kori
and Dharmendra Yadav moved their bail
applications before the Special Judge,
POCSO Act, Raebareli, respectively bail
applications no.1109 of 2020 and 1100 of
2020 which were heard and rejected by a
consolidated order dated 19.08.2020.

4. For the bail-applicant, Pankaj Kori,
learned counsel Sri Dileep Kumar Pandey,
Advocate and for the accused-applicant,
Dharmendra Yadav, learned counsel Sri
Dhirendra Pratap Singh, Advocate appeared
through video conferencing for virtual
hearing.

5. Learned A.G.A. on behalf of State
Sri Rajiv Verma, Advocate also appeared
before the Court in virtual hearing through
video conferencing.

6. Since the matter pertains to Section
376-D of Indian Penal Code, 1860 and
Section 5/6 of The Protection of Children
from Sexual Offences (POCSO) Act, 2012
alongwith Section 3(2)(5) of Scheduled Caste
and
Scheduled
Tribe
(Prevention
of
Atrocities) Act, 1989 coupled with Section
302 and 328 of Indian Penal Code, 1860,
therefore, pursuant to the order of the Court
dated 23.09.2020, notice of bail applications
was issued by the office to be served through
Chief Judicial Magistrate, Sultanpur. Office
has reported that the notice is served
personally on the opposite party no.2, the
father of the victim / informant. State has
filed it's counter affidavit.

7. Briefly the case is that the Ram
Kishor Pasi, resident of village Poore,
Hanumat Mazare, Mohaiya Kesaria, Police
Station
Fursatganj,
District
Amethi
complained before the Special Court,
POCSO Act under Section 156(3) Cr.P.C.
that his minor daughter aged about 16 years
informed him on mobile phone on
29/30.04.2019 at about 12:30 A.M. that the
accused, native villager of his village
namely Pankaj Kori and Dharmendra
Yadav respectively 25 years and 30 years
of age committed rape on her and thereafter
administered forcibly poison by reason of
which, she is feeling extreme thirst of water
and lying helpless below a mongo tree in
the grove of Akhilesh. The complainant
rushed up alongwith his wife and brother,
Ram Bahadur on the spot and his daughter
reiterated about incident as she had
informed telephonically to him. She further
told that the accused persons have filled up
her vagina with soil. At that time, the
informant's daughter, the victim was alive.
He brought her at his home and after
informing the police on their assurance,
began to manage to take her to hospital.
The entire family stayed waiting the police
for a long but she could not be taken to the
hospital until she was alive and suffering
severe pain, ultimately she died. The police
reached the complainant's home at about
06:00 A.M. after her death.

8. A complaint in writing against the
accused persons was got written by the
informant-father, the police carried away the
dead body of the victim in police station,
where accused persons were also found
present, talking and whispering with S.I.
Santosh Kumar Singh. Pursuant thereto, the
S.I. started threatening to the informant and
his family members that they would be
committed to jail by him and their report will
not be registered nor the post mortem will be
7 All. Dhermendra Yadav Vs. State of U.P. & Anr.
277
done unless his demand of Rs.15,000/- is not
fulfilled. The informant under compulsion,
any how managed the amount of Rs.15,000/-
and paid to him. The S.I. got complainant's
thumb impression on 3 to 4 blank papers, sent
the body for post mortem but did not register
the first information report. He began to
avoid the informant and also did not
handover the post mortem report to him,
therefore,
the
informant-father
of
the
deceased-victim had no option but to
approach the District Magistrate, moved there
an application, complaining the threat of life
and limb on the part of accused and action
not being taken by the police station. But
when no action was taken, he dispatched the
first information report of the incident on
02.07.2019 through registered post, addressed
to the Police Superintendent, District Amethi
but that too went in vain.

9. Compelled under the aforesaid
circumstances, an application under Section
156(3) Cr.P.C. was moved before the competent
court on 05.07.2019 which ultimately ordered by
the Special Court (POCSO Act) on 26.10.2019
and the first information report was got registered.

10. The information reveals an incident
of brutal and aggravated sexual assault on a
minor girl, who belongs to a poor and down
trodden family, suffering trauma, the victim
girl died but the police of the locality behaved
apathetically with insensitive inaction on it's
part. The accused persons were named by the
deceased-victim and reported to the police by
her father. Minor in age, the girl was sexually
assaulted and behaved inhumanly by filling
up her vagina with soil. She was victimized
in very gruesome manner that too cannot
invoke the sensitivity of the local police. If
the Special Court, POCSO Act does not
come into action by allowing the application
under Section 156(3) of Cr.P.C., the
F.I.R. also could not be registered.

11. Contentions on behalf of accused

11.1 Learned counsel Sri Dilip
Kumar Pandey, Advocate on behalf of accusedapplicant-Pankaj Kori argued that before going
into the first information report, it would be
pertinent for the Court to look into at page 18 of
the paper book, annexure no.2, which is moved
to the Station House Officer, Police Station
Fursatganj, District Amethi by the informant of
the case, Ram Kishor to the effect that on
30.04.2019 at 02:30 A.M., his daughter aged
about 17 years fallen in severe stomach ache
and she died in the house as she got diarrhea,
requesting not to proceed for legal action, if
any.

11.2 Learned counsel further argued
that the said letter reveals the real cause of the
death of the victim and the first information
report, pursuant to the order of the Court under
Section
156(3)
Cr.P.C.
is
subsequent
development
with
ulterior
motive
and
premeditated plan to falsely implicate the
accused. He further drew attention towards the
G.D. entry annexed by him as annexure no.3,
reproducing the contents of annexure no.2, the
alleged information by the informant-Ram
Kishor. He further pressed on inquest report
made annexure no.4 to the application, wherein
the witnesses of the inquest and the S.I. have
collectively opined that cause of death is not
ascertained, therefore, post mortem of the dead
body is necessary. He further drew attention
towards annexure no.5, which is an information
of death of the victim on 30.04.2019 at about
03:30 A.M. by reason of loose motion and
vomitting. This letter was handed over to
medical officer for post mortem.

11.3 Learned counsel for the
applicant argued that the prosecution did
278 INDIAN LAW REPORTS ALLAHABAD SERIES
not try to identify the accused-applicant
who allegedly committed offence of rape
upon the victim. He further argued that the
statement of informant was recorded
alongwith statement of informant's brother
and wife, though, they stated that the victim
while
she
was
alive,
informed
telephonically to the informant about the
commission of rape by accused persons
namely Pankaj Kori and Dharmendra
Yadav and thereafter administered her
poison is not admissible in evidence.

11.4 Learned counsel for the
applicant further argued that there is no
corroboration of the alleged statement of
victim by other evidences. There is no
independent witness, therefore, it does not
deserve to be relied on and believed.

11.5 Learned counsel further
argued that the charge sheet is submitted
excluding the co-accused Santosh Kumar,
S.I. posted at Police Station Fursatganj,
District Amethi as the evidence could
established the allegation made against him
by the informant as to his being in
collusion with the present accused, as such
on the basis of same evidence, the accused
cannot be prosecuted.

11.6 Learned counsel further
argued that the most vital fact of the case is
that the victim was subjected to gang rape
but neither the inquest report nor the post
mortem report has affirmed the sign of
gang rape, therefore, allegations in the first
information report and in the statement of
the prosecution witnesses have no lacks for
want of medical evidences.

11.7
Learned
counsel
lastly
argued
that
accused-applicants
are
lingering in jail since 02.07.2020 for no
fault of them, therefore, they should be
released.

11.8 On behalf of accused,
Dharmendra Yadav, learned counsel Sri
Dhirendra
Pratap
Singh,
Advocate
submitted in agreement with the argument
submitted by learned counsel Sri Dilip
Kumar Pandey, Advocate subject to an
addition that none of the accused persons
were identified as the offender as well as
their connection from the offence of gang
rape over the victim, is not established by
any evidence of the medical and forensic
examination. The police tried to trace the
location of accused from the mobile phone,
getting C.D.R. reports from the telecommunication department but the location
of the accused could not be traced from the
spot of incident, where the offence has
been committed.

11.9 On the basis of aforesaid
facts and circumstances, learned counsels
submitted that the entire prosecution story
is nothing but false implication, therefore,
the accused-applicants need be released on
bail.

12. Contentions on behalf the
Prosecution

12.1 Learned A.G.A., on the
other hand, argued that accused-applicants
are not innocent. The victim of the incident
had
her
date
of
birth
08.07.2003,
accordingly, as on the date of incident, she
was nearly 15 years 9 months and 21 days
old i.e. child under the definition clause of
The Protection of Children from Sexual
Offences (POCSO) Act, 2012. He drew the
attention towards the statement of the
father-complainant,
recorded
by
the
Investigating Officer under Section 161
Cr.P.C., where he has stated that the high
school certificate for the purpose of
showing date of birth and age of victim was
hand over to the Investigating Officer. She
was subjected to aggravative penetrative
offence under Section 5/6 of The Protection
of
Children
from
Sexual
Offences
(POCSO) Act, 2012 as well as the rape was
7 All. Dhermendra Yadav Vs. State of U.P. & Anr.
279
committed by two persons simultaneously
i.e. accused Pankaj Kori and Dharmendra
Yadav, therefore, offence of Section 376-D
I.P.C. read with Section 5/6 of POCSO Act
is committed by them.

12.2 Learned A.G.A. argued that
the victim narrated the whole incident on
telephone to her father and to the mother and
uncle when they reached alongwith father at
the spot where she was lying helpless after
the commission of rape below a mango tree
in grove of one Akhilesh, a native villager.
All of them have stated the same without
any contradiction to the Investigating
Officer that the accused persons, Pankaj
Kori and Dharmendra Yadav committed
rape on victim child, thereafter filled soil in
her vagina and administered her poison. She
was badly feeling thirsty by reason of
poison.

12.3 Learned A.G.A. further argued
that this is established by law from time to time
in the judgment delivered by our own High
Court and Hon'ble the Supreme Court that if the
medical evidence is in deviation with the oral
statement of witness particularly the statement
of the victim who is at the pedestal of injured
witness, the same could not be disbelieved even
the medical report is liable to be discarded.

12.4
Learned
A.G.A.
further
submitted that the entire situation reveals the
high handedness and collusion, there is no
whisper of examining the private parts while
making autopsy over the dead body of
deceased. Therefore, the report of post
mortem seems to be prepared in collusion
with person interested to get benefited from
them.

13. After hearing to the rival
contentions and arguments of the parties,
the facts and evidence available on record
should be considered for the decision on
the issue of releasing the accused on bail.

14. Learned counsels for the
applicants tried to divert attention of the
Court to another approach of examining the
incident suiting to them. He pressed on the
annexure no.2, the information of death
said to have been given by the father of the
victim to the police station. On bare perusal
of the said information, it does not emanate
the Court to believe that the same was
given by the father of the victim as
information
of
death
by
reason
of
Diarrhoea to the police station. Neither date
nor time of moving such application is
entered thereon. Moreover, under Section
154 of the Cr.P.C., where the Station House
Officer of the police station is duty bound
to get reduced into writing, if any
information of unnatural death is given to
him and a copy of the said writing is to be
furnished to the informant under the seal of
the officer. The said annexure no.2 is not in
the form of any such document, it seems to
have been procured by the accusedapplicants as a 'writing' purported to exhibit
it as the same is of the father of the victim,
so as to suit their version of defense.

15. In this patriarchal and male
dominated society, even the fundamental
and human rights of women are often
denied and invalidated. In villages, towns
and semi-urban areas, there is no effect of
women's awakening going on for centuries
but traditionally women are unsecured,
deprived of equal rights, deprived of right
to redress in justice. Undue advantage of
this environment are taken by tyrants of the
society, who do not have fear and
hesitation in making girl child, adolescent
girls and minors, a victim of their lust.
Instead of providing justice to the victim or
the families of the victim, the responsible
people of the society, the law enforcement
authorities start following the reverse
280 INDIAN LAW REPORTS ALLAHABAD SERIES
course of action. Non-writing of first
information report by the police, not
conducting relevant medical examination
by the doctors etc. are example of this,
which is nothing but negative activness of
such people and authorities to prevent the
fact or evidences from coming to light
usually in collusion with the accused. In the
recent past, in September 2020, the nation
has shockingly witnessed the Hathras gang
rape case, where the victim faced an
extreme bestiality of the accused and
ultimately died.

16. The narration of incident to the
father and other witnesses is dying
declaration, which need no corroboration, if
the statement is convincible with other
evidence. The Forensic Science Laboratory
has confirmed human blood found on
salwar, which the deceased wore at the
time of incident and human semen was also
found. The chemical examination report
confirms the statement of victim made to
her family members when she was alive.
The family members have stated the same.
The narration by victim is sufficient to be a
statement disclosing the cause of her death.
There is no reason to disbelieve the said
statement, if read alongwith the report of
Forensic Science Laboratory at this stage.

17. This would be pertinent to state
here
that
the
accused-applicant's
involvement in the crime became known to
all only after the victim narrated the entire
incident to her father, firstly on telephone
and thereafter when the father and other
witnesses reached to her at the spot of
incident and brought her to home, she told
the entire incident, how happened and who
was the culprit, to her father (the
informant), mother as well as to uncle. The
father rushed up to police station instantly
as he stated in his statement but the police
did not come at once but opted to reach at
the home of the victim at 06:00 A.M. Till
then, the victim could not survive and died.

18. I perused on record, annexure
no.6 on the paper book, the post mortem
report wherein no external injury is
reported as anti mortem injuries. Since
cause of death could not be ascertained, the
doctor preserved viscera for forensic
examination. The viscera alongwith clothes
wore by the deceased at the time of death
were chemically examined in the Forensic
Science Laboratory. The viscera report is
made annexure no.11, which discloses that
a considerable amount of Aluminum
Phosphate poison is found. Likewise, the
salwar, underwear, top, thread alongwith
locket and nosepin as item no.1 to 5 were
sent for the chemical examination. The
salwar, underwear and top was found
stained with human blood and on the
salwar, the human semen was also found.
All these are clear and unambiguous
evidence prima facie establishing the
sexual assault on the victim.

19. The argument of learned counsel
for the accused persons with regard to the
statement of deceased-victim as to the
commission of rape and her murder by
poisoning is unbelievable as it is not
recorded by the Magistrate on prescribed
format is baseless as Hon'ble the Supreme
Court in the case of Shama Vs. State of
Haryana1, it is held:-

"Law does not prescribe any
format for recording dying declaration;
and secondly, it also does not prescribe any
specific authority to record it unless any
special law or rule is enacted to that effect.
On the other hand, perfect working and
neatly structured dying declaration at times
brings about an adverse impression and
7 All. Dhermendra Yadav Vs. State of U.P. & Anr.
281
creates suspicion in mind of court, since
dying declaration need not be drawn with
mathematical precision. All that law
requires is that declarant should be in a fit
state of mind and be able to recollect the
situation resulting in the available state of
affairs in relation to the incident and the
court should be satisfied that reliance
ought to be placed thereon rather than
distrust."

20. In the case of Sudhakar Vs. State
of Madhya Pradesh2, it is laid down that :-

"20. The "dying declaration" is
the last statement made by a person at a
stage when he is in serious apprehension of
his death and expects no chances of his
survival. At such time, it is expected that a
person will speak the truth and only the
truth. Normally in such situations the
courts attach the intrinsic value of
truthfulness to such statement. Once such
statement has been made voluntarily, it is
reliable and is not an attempt by the
deceased to cover up the truth or falsely
implicate a person, then the courts can
safely rely on such dying declaration and it
can form the basis of conviction. More so,
where the version given by the deceased as
dying
declaration
is
supported
and
corroborated
by
other
prosecution
evidence, there is no reason for the courts
to doubt the truthfulness of such dying
declaration."

21. In order to deal with the argument
of learned counsel for the accusedapplicants that the prosecution could not
proceed against them only on the basis of
statement of deceased-victim, which was
made to her family members only, it would
be relevant to quote Section 32 (1) of the
Indian Evidence Act, 1872, which is as
follows:-

"Section 32 : Cases in which
statements of relevant fact by person who
is dead or cannot be found, etc., is
relevant-Statement, written or verbal, of
relevant facts made by a person who is
dead, or who cannot be found, or who has
become incapable of giving evidence, or
whose attendance cannot be procured
without an amount of delay or expense
which, under the circumstances of the case
appears to the Court unreasonable, are
themselves relevant facts in the following
cases:

(1) When it relates to cause of
death

When the statement is made by a
person as to the cause of his death, or as to
any of the circumstances of the transaction
which resulted in his death, in cases in
which the cause of that person's death
comes into question.

Such statements are relevant
whether the person who made them was or
was not, at the time when they were made,
under the expectation of death, and
whatever may be the nature of the
proceeding in which the cause of his death
comes into question."

22. The deceased victim narrated the
incident of gang rape committed by the
accused persons to her father, mother and
uncle before her death. After her death that
narration have assumed the status of dying
declaration explaining cause of her death.
Any
corroborative
evidence
is
not
necessarily required to place reliance on it,
provided it in itself appears to be readily
true in the circumstances of the case free of
doubts.
Moreover,
requirement
of
282 INDIAN LAW REPORTS ALLAHABAD SERIES
certificate provided by a doctor in respect
of such state of deceased, is not essential in
every case.

23. The reliance may be placed of in
the judgment of Hon'ble the Supreme Court
in case of Bharwada Bhoginbhai Hirjibhai
Vs. State of Gujarat3, where it is held that
corroboration to the testimony of the victim
of sexual offence is not required except
corroboration by medical evidence, if
available, no other corroborating evidence
required if the victim's testimony is
otherwise believable. Here the victim's
statement as dying declaration is stated by
her parents and uncle, which is supported
by forensic science examination report.

24. During the investigation, the
investigating
officer
has
written
the
statement of mother, uncle and the first
informant-father of the deceased victim and
the father, in which the incident of brutal
sexual violence happened to her and the
perpetrators who caused the incident. There
is no mutual contradiction, deviation or
material contradiction in the statements of
all of them.

25. Learned counsel for the accusedapplicants vehemently argued that merely
because of Forensic Science Laboratory
report, the present accused-applicants could
not be detailed as connected with the offence,
as the report is inconclusive with regard to
the semen found on the salwar, wore by the
deceased at the time of incident.

26. In a recent judgment of Rajendra
Pralhadrao
Wasnik
v.
State
of
Maharashtra4, Hon'ble the Supreme Court
held that merely because the Forensic
Science Laboratory report is inconclusive,
it is not necessary that the irresistible
conclusion is only one that the accused is
not guilty.

27. In view of the above observation
of Hon'ble the Supreme Court, it can be
said
that
whatever
stated
in
dying
declaration by the deceased with regard to
the cause of her death and the commission
of gang rape upon her, told to her mother,
father and uncle, deserves to be believed
and relied on with credibility.

28. It would be pertinent to refer
Section 29 and 30 of The Protection of
Children from Sexual Offences (POCSO)
Act, 2012, which is quoted as under:-

"29.
Where
a
person
is
prosecuted for committing or abetting or
attenuating to commit any offence under
sections 3,5,7 and section 9 of this Act, the
Special Court shall presume, that such
person has committed or abetted or
attempted to commit the offence, as the
case may be unless the contrary is proved.

30. (1) In any prosecution for any
offence under this Act which requires a
culpable mental state on the part of the
accused, the Special Court shall presume
the existence of such mental state but it
shall be a defence for the accused to prove
the fact that he had no such mental state
with respect to the act charged as an
offence in that prosecution.

(2) For the purposes of this
section, a fact is said to be proved only
when the Special Court believes it to exist
beyond reasonable doubt and not merely
when its existence is established by a
preponderance of probability.

Explanation.-In
this
section,
"culpable mental state" includes intention,
motive, knowledge of a fact and the belief
in, or reason to believe, a fact."
7 All. Dhermendra Yadav Vs. State of U.P. & Anr.
283

29. The provision of Section 29
provides for a presumption as to certain
offences. It provides that where a person is
prosecuted for violating any of the provisions
under Section 3, 5, 7 and 9 of the Act and
where the victim is a child, below the age of
16 years, the Special Court shall presume that
such person has committed the offence unless
the counter is proved. The offence against the
accused-applicant bears a reverse burden of
proof, therefore, their argument as to the lack
of evidences against them for proving the
offence committed by them is not tenable.

30. At the stage of hearing on the bail
application of accused this court without
going deep into the scrutiny of evidences
collected by the investigating officer, is to
assess them on "probability factor" only. The
version of the victim about the incident of
gang rape as stated by the witnesses finds
corroboration from the forensic science lab's
examination report of clothes (salwar) wore
on the body of deceased, was found stained
with human blood and human semen. Like
wise the victim's version of administering her
poison by the accused as stated by the
witnesses also finds support as the viscera
extracted from the dead body of deceased for
forensic examination was found containing
poison like Aluminum phosphate, sufficient
to cause death. Informant-father of the
deceased is not pleaded to be inimical with
the accused since before the incident of rape.
He is not blamed by the accused to be
interested any how to falsely implicate to get
them behind the bar. They are most natural
witnesses. As such, the witnesses are prima
facie reliable and credible, their statements as
to dying declaration of the victim as stated by
the witnesses sufficient to explain cause of
her death by reason of administering poison
to her by accused after committing brutal
gang rape. The prosecution case, thus prima
facie found established against the
accused persons.

31. The manner in which the offence is
committed, the nature and conduct of the
accused-applicants, all are sufficient to raise
apprehension of abusing their liberty in case of
release on bail in adversely affecting witnesses
and the family of the victim's so as to effect the
trial.

32. Moreover, it would not be out of place
to observe that from the very inception, just
after the incident, the people of the locality, the
police, all seem to had acted in protecting the
accused-applicants from prosecution. The First
Information Report was not got registered
despite the fact that father of the victim
approached the police instantly in the night of
the incident, he was told to wait so that the
victim may be sent to the women hospital for
medical examination. The victim died but the
police reached only thereafter at 06:00 A.M. in
the morning. Despite the fact stated by the
victim to her parents that she was brutally with
aggravation subjected to gang rape by both the
accused and their criminal animus was so
aggravated and heinous that they filled soil in
her vagina and administered her poison, the
Aluminum Phosphate to ensure her death.
Therefore, the personal liberty of the accused is
not to override, the right to life of the victim's
family and for fair trial, the complainant would
need a completely fear-free environment as a
witness. He has the right to have a fair trial of
the matter.

33. Hon'ble the Supreme Court further in
the case of Sudha Singh Vs. The State of Uttar
Pradesh & Anr.5 held as follows:-

"12. There is no doubt that liberty
is important, even that of a person charged
284 INDIAN LAW REPORTS ALLAHABAD SERIES
with crime but it is important for the courts
to recognise the potential threat to the life
and liberty of victims/witnesses, if such
accused is released on bail."

34. This would also not be irrelevant
to mention that while the police officers
were making inquest and doctors were
doing autopsy on the body of the deceased
in post mortem house, despite the fact, the
blood stained salwar of the victim was sent
to
Forensic
Science
Laboratory
for
chemical examination, no private part of
the deceased was examined so as to verify
the allegations of gang rape with her.
Neither the inquest report nor the post
mortem report have made any such report.

35. All these facts, if they are true,
sufficient to gather inference of high
handedness
of
the
accused-applicants
affecting the things in their favour.
Therefore, their release on bail at this stage
cannot be considered.

36. The application of the bail moved
on behalf of accused-applicants on the
basis of above discussions is rejected.

37. The trial court is required to
examine
as
soon
as
possible,
the
prosecution witnesses and proceed further
with the disposal of the case, therefore, a
direction is hereby issued to the Court
concerned to proceed expeditiously within
one year, from the date, the certified copy
of the order is placed before it.

38. It is further clarified that the
learned trial court while deciding the case
on merit, shall not swayed upon with the
observation made by this Court in the order
because
occasion
to
make
such
observations arisen while dealing with the
argument made at the stage of bail by
learned counsels for the bail-applicants.

39. The officers entrusted with the
prosecution i.e. A.D.G. (Police) / Incharge
of D.G. (Prosecution), State of U.P.,
Lucknow, Joint Director (Prosecution),
Amethi and D.G.C. (Criminal), Amethi are
directed to ensure the production of
prosecution witness before the trial court
expeditiously and get them examined so
that the trial court may be able to decide the
case expeditiously within a prescribed
period of one year. They are further
directed to ensure the protection of
witnesses of prosecution.

40. The Senior Registrar of the Court
to ensure the service and communication of
order to (i) A.D.G. (Police) / Incharge of
D.G.
(Prosecution),
State
of
U.P.,
Lucknow, (ii) Joint Director (Prosecution),
Amethi and (iii) D.G.C. (Criminal), Amethi
through email in addition to the usual
course of communication and service of
orders as prescribed under rules.
----------
(2021)07ILR A284
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2020

BEFORE

THE HON'BLE SIDDHARTH, J.

Crl. Misc. Anticipatory Bail Application No. 8285
of 2020

Adil ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Sadaful Islam Jafri, Sri Iqubal Hussain,
Sri Nazrul Islam Jafri (Senior Adv.)