# Ishrar Ahmad @ Mintu v. State of U.P

- **Citation:** (2022) 9 ILRA 1661
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-18
- **Case number:** Criminal Appeal No. 4875 of 2014
- **Bench:** Suneet Kumar, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishrar-ahmad-mintu-v-state-of-u-p-49061
- **Pages:** 23

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2) - Indian Penal
Code,1860-Sections 376 (2) (g), 307 302
-
Challenge
to-Conviction-Dying
declaration-
The
accused
persons
committed rape with the victim-deceased
very cleverly, cunningly and to avoid
public
shame
the
victim-deceased
committed suicide-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 LaboratoryP.W 5 - Dr. has also given evidence that
Sperm was found in the vaginal smear of
the deceased and on the underwear of the
accused - 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- 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-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- Trial court
rightly convicted the accused persons who
only for a momentary bliss ruined the life
of deceased and forced herself to commit
suicide.(Para 1 to 62)
1662 INDIAN LAW REPORTS ALLAHABAD SERIES
B. 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
sex-offence 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 self-preservation or when the
probability factor is found to be out of
tune. (Para 57)

C. 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
statemen

## Text

_Characters 0–39,741 of 75,985. This is a partial read: ask again with offset=39741 for what follows._

9 All. Ishrar Ahmad @ Mintu Vs. State of U.P.
1661
of sentence is concerned, I considered that
the minimum sentence of seven years is
prescribed for offence under Section 376
I.P.C.
and
Section
4
POCSO
Act.
Therefore, keeping in view the facts and
circumstances of the present case, I am of
the view that end of justice would be
served, if the appellant is sentenced to
imprisonment for the period, which he has
already undergone, consequently awarded
sentence is reduced to the period already
undergone
by
the
appellant-Badri
Narayan. It is hereby also directed that the
fine clause shall be unaltered. Appellant is
directed to deposit the fine of Rs. 10,000/-
before the trial court. The deposited amount
i.e. Rs. 10,000/- shall be awarded in favour
of the victim under Section 357 (2) Cr.P.C..
Thus, this appeal is partly allowed on the
point of sentence only.

35. With the above observations/
directions, this appeal is disposed of.

36. Let a copy of this order along with
lower court record be transmitted back to
the trial court concerned for necessary
compliance. A copy of this order be also
given to the Superintendent of Jail of the
concerned District for compliance of order
of this Court
----------
(2022) 9 ILRA 1661
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 4875 of 2014
With
Criminal Appeal No. 4713 of 2014
And
Criminal Appeal No. 1844 of 2015
Ishrar Ahmad @ Mintu ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Anubhav Chandra, Sri Devendra Mohan
Singh, Sri Lallan Verma, Sri Mangala Prasad
Rai, Sri Manoj Kumar Singh, Sri Ram Jatan
Yadav, Sri Shivajee Srivastava

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2) - Indian Penal
Code,1860-Sections 376 (2) (g), 307 302
-
Challenge
to-Conviction-Dying
declaration-
The
accused
persons
committed rape with the victim-deceased
very cleverly, cunningly and to avoid
public
shame
the
victim-deceased
committed suicide-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 LaboratoryP.W 5 - Dr. has also given evidence that
Sperm was found in the vaginal smear of
the deceased and on the underwear of the
accused - 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- 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-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- Trial court
rightly convicted the accused persons who
only for a momentary bliss ruined the life
of deceased and forced herself to commit
suicide.(Para 1 to 62)
1662 INDIAN LAW REPORTS ALLAHABAD SERIES
B. 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
sex-offence 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 self-preservation or when the
probability factor is found to be out of
tune. (Para 57)

C. 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.(Para 59)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Dinesh Vs St. of Raj.(2006) 3 SCC, 771

2. Mohd. Iqbal & anr. Vs St. of Jhar. (2013) AIR
SC 3077

3. Raja Vs St. of Karn. (2016) 10 SCC 506

4. St. of U.P. Vs Chhotey Lal (2011) AIR SC 697

5. Santosh Moolya Vs St. of Karn. (2010) 5
S.C.C 445

6. George Kutty Vs St. of Ker.(1992) Cri.L.J. 1663

7. Godhu Vs St. of Raj.(1974) AIR SC 2188

8. Shakuntala Devi Vs St. of Hary. (2008)

9. Gulab Singh Vs St. of U.P. (2003) 47 ACC 161

10. Narendra Kumar Vs St. of N.C.T of Delhi
(2016) AIR SC 150

11. Raju Dewada Vs St. of Mah. (2016) AIR SC
3209
9 All. Ishrar Ahmad @ Mintu Vs. State of U.P.
1663
12. Laxman Vs St. of Mah. (2002) 6 SCC 710

13. Bhupinder Sharma Vs St. of H.P.(2003) AIR
SC 4684

14. Sanjeev Vs St. of Har. (2015) 4 SCC 387
para 16

15. G. Parshwanath Vs St. Of Karn. (2010) AIR
SC 2914

16. St. of U.P. Vs Manoj Kumar Pandey (2009)
AIR SC 711

17. Ram Das Vs St. of Mah. (2007) 2 S.C.C 170

18. Moti Lal Vs St. of M.P. (2008) 8 SCC Pg 20

19. Bhagwan Jagannath Markad Vs St. of Mah.
(2016) 10 SCC 537

20. Bable Vs St. of Chh. (2012) SC 2621

(Delivered by Hon'ble 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. Ka1) of Nazim Ansari (PW-1), F.I.R (Ex. Ka23) 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,
1664 INDIAN LAW REPORTS ALLAHABAD SERIES
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 InCharge, 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. K-14, 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
9 All. Ishrar Ahmad @ Mintu Vs. State of U.P.
1665
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
1666 INDIAN LAW REPORTS ALLAHABAD SERIES
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.K10.
9 All. Ishrar Ahmad @ Mintu Vs. State of U.P.
1667

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 Chargesheet 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. K- 14.

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. K-17 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.
1668 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Underwear, T. Shirt, Fullpant, 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.
9 All. Ishrar Ahmad @ Mintu Vs. State of U.P.
1669
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
1670 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 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
9 All. Ishrar Ahmad @ Mintu Vs. State of U.P.
1671
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 sisterin-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
1672 INDIAN LAW REPORTS ALLAHABAD SERIES
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 antimortem 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
9 All. Ishrar Ahmad @ Mintu Vs. State of U.P.
1673
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 accusedappellant 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.