# Lokesh & Ors v. State of U.P

- **Citation:** (2023) 2 ILRA 31
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-28
- **Case number:** Criminal Appeal No. 1371 of 2015
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lokesh-ors-v-state-of-u-p-49660
- **Pages:** 17

## Headnote

A. Criminal Law - Indian Penal Code, 1860
- Section 302 - Evidence Act, 1872 -
Section 32 - Dying declaration - It is
necessary for the prosecution to establish
that the dying declaration was recorded
when the victim was in the fit state of
mind - merely certifying that the victim
was
conscious
while
recording
the
32 INDIAN LAW REPORTS ALLAHABAD SERIES
statement, not sufficient - A specific
satisfaction was warranted regarding fit
metal state of the victim - In medical
science two stages namely conscious and
a fit state of mind are distinct and are not
synonymous - One may be conscious but
not necessarily in a fit state of mind -
Merely stating that the patient is clinically
fit does not amount to a satisfaction with
regard to fit mental state of the patient -
dying declaration must carry a certificate
by the Executive Magistrate to the effect
that it was a voluntary statement made by
the deceased and that he had read over
the statement to him (Para 46, 48, 50)

B. Criminal Law - Indian Penal Code, 1860
- Section 302 - Evidence Act, 1872 -
Section 32 - Dying declaration - On the
date
of
incident
itself
the
dying
declaration of the victim was recorded
after the doctor certified that the victim,
aged 18 years, was clinically fit for giving
her dying declaration - no satisfaction
recorded by the attending doctor that
victim was in a fit mental state to give a
voluntary statement - Deputy Collector,
who was present at the time of recording
of
dying
declaration
of
the
victim,
admitted that there was no recital in the
declaration
of
the
victim
that
the
statement was read out to the victim &
that it was a voluntary statement made by
the deceased - Attending doctor stated
that the injured was burnt over 90% of
her
body
and
her
condition
was
deteriorating continuously, her pulse was
weak - In the cross-examination he
stated that the condition of the victim was
much below normal but she was conscious
-Held - dying declaration not reliable in
the facts of the present case since the
victim was not in a position to give any
statement - the condition of the victim
was critical and her trachea was blocked
for which operation was proposed and,
therefore, the victim was not in a position
to speak or to get her dying declaration
recorded - no satisfaction recorded by the
Doctor about the victim being in a fit
mental state to give her statement - Also,
contents
of
the
dying
declaration
inconsistent
with
the
statements
of
prosecution witnesses (Para 55, 56,)

C. Criminal Law - Indian Penal Code, 1872
- Section 376 - Rape - it was claimed that
four young men committed rape upon the
victim, aged 18 years, but no injuries were
found on her private parts & her hymen
was old torn - vaginal swabs of the victim
were sent for pathological examination
wherein no spermatozoa found on the
victim
-
medical
evidence
does
not
support commissioning of rape upon the
victim (Para 37)

Dismissed. (E-5)

List of Cases cited:

## Text

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2 All. Lokesh & Ors. Vs. State of U.P.
31
who had died during the pendency of the
substitution application. In the meantime,
plaintiff/respondent
no.8
filed
two
misconceived applications which were
rejected by the court. Thereafter, the
plaintiff/respondent no.8 filed substitution
application 179A.

25. The substitution application
144A1/1 was not allowed, when the
application 179A was filed, therefore, the
suit could not have abated against Irfan
Khan as he did not become the defendant in
the suit for want of any order on the
substitution application 144A1/1. Late Irfan
Khan shall become defendant only after the
substitution
application
144A1/1
was
allowed by the trial court and would
become eligible to deny or refute the claim
of the plaintiff/respondent no.8 after his
substitution application was allowed and he
has been substituted. Thus, he will become
the defendant for the purpose of Order 22
Rule 4 of C.P.C. on the date his substitution
application is allowed by the trial court.
Given the language used under Order 22
Rule 4 (1) (3) of C.P.C., the application has
to be made within the time prescribed in
law for substituting the heirs of the
defendant and the suit would abate only
when the said application has not been filed
within the time prescribed.

26. In the instant case, the application
to substitute Irfan Khan was pending and
was not allowed and till it was allowed,
there was no question of substituting the
heirs of the Late Irfan Khan. Thus, the
limitation to substitute the heirs of the Late
Irfan Khan would start running from
03.10.2022 when application 144A1/1
regarding the substitution of heirs of the
Late Nayyar Jahan Raza is allowed by the
trial court. It is not in dispute that on the
date the substitution application 144A for
substituting the heirs of Late Nayyar Jahan
Raza was allowed, the application 179A to
substitute the heirs of Late Irfan Khan was
filed and pending before the court. Thus,
this Court believes that there was no delay
in filing the substitution application 179A
to substitute the heirs of Irfan Khan, nor the
suit could have abated against Irfan Khan
since the substitution application 144A1/1
was not decided by the court below.

27. Thus, for the reasons given above,
the civil revision lacks merit and is
accordingly, dismissed with no order as to
costs.
----------
(2023) 2 ILRA 31
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 1371 of 2015

Lokesh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Araf Khan, Sanakshi Arora, Sri Lihazur
R. Khan, Sri Rajesh Pathik, Sri Gaurav
Kakkar, Sri Sanjay Kumar Dubey.

Counsel for the Respondent:
Govt. Advocate, Sri Satish Solanki

A. Criminal Law - Indian Penal Code, 1860
- Section 302 - Evidence Act, 1872 -
Section 32 - Dying declaration - It is
necessary for the prosecution to establish
that the dying declaration was recorded
when the victim was in the fit state of
mind - merely certifying that the victim
was
conscious
while
recording
the
32 INDIAN LAW REPORTS ALLAHABAD SERIES
statement, not sufficient - A specific
satisfaction was warranted regarding fit
metal state of the victim - In medical
science two stages namely conscious and
a fit state of mind are distinct and are not
synonymous - One may be conscious but
not necessarily in a fit state of mind -
Merely stating that the patient is clinically
fit does not amount to a satisfaction with
regard to fit mental state of the patient -
dying declaration must carry a certificate
by the Executive Magistrate to the effect
that it was a voluntary statement made by
the deceased and that he had read over
the statement to him (Para 46, 48, 50)

B. Criminal Law - Indian Penal Code, 1860
- Section 302 - Evidence Act, 1872 -
Section 32 - Dying declaration - On the
date
of
incident
itself
the
dying
declaration of the victim was recorded
after the doctor certified that the victim,
aged 18 years, was clinically fit for giving
her dying declaration - no satisfaction
recorded by the attending doctor that
victim was in a fit mental state to give a
voluntary statement - Deputy Collector,
who was present at the time of recording
of
dying
declaration
of
the
victim,
admitted that there was no recital in the
declaration
of
the
victim
that
the
statement was read out to the victim &
that it was a voluntary statement made by
the deceased - Attending doctor stated
that the injured was burnt over 90% of
her
body
and
her
condition
was
deteriorating continuously, her pulse was
weak - In the cross-examination he
stated that the condition of the victim was
much below normal but she was conscious
-Held - dying declaration not reliable in
the facts of the present case since the
victim was not in a position to give any
statement - the condition of the victim
was critical and her trachea was blocked
for which operation was proposed and,
therefore, the victim was not in a position
to speak or to get her dying declaration
recorded - no satisfaction recorded by the
Doctor about the victim being in a fit
mental state to give her statement - Also,
contents
of
the
dying
declaration
inconsistent
with
the
statements
of
prosecution witnesses (Para 55, 56,)

C. Criminal Law - Indian Penal Code, 1872
- Section 376 - Rape - it was claimed that
four young men committed rape upon the
victim, aged 18 years, but no injuries were
found on her private parts & her hymen
was old torn - vaginal swabs of the victim
were sent for pathological examination
wherein no spermatozoa found on the
victim
-
medical
evidence
does
not
support commissioning of rape upon the
victim (Para 37)

Dismissed. (E-5)

List of Cases cited:

1. Paparambaka Rosamma & ors. Vs St. of
Andhra Pradesh (1999) 7 SC 695

2. Naresh Kumar Vs Kalawati & ors. 2021 SCC
OnLine SC 260

3. Suriender Kumar Vs St. of Har. (2011) 10
SCC 173

4. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This criminal appeal is directed
against the impugned judgment and order
dated 11th February, 2015 passed by the
Additional Sessions Judge, Court No.3,
Hathras in Session Trial No. 97 of 2013
(State of U.P. Vs. Lokesh & 2 Others),
arising out of Case Crime 296 of 2007,
whereby accused-appellants- Lokesh, Dani
and Indra have been convicted and
sentenced
for
one
year
rigorous
imprisonment each for the offence under
Section 452 I.P.C. with fine of Rs.1,000/-
each, in default thereof, to further undergo
one month each additional imprisonment;
life imprisonment for the offence under
2 All. Lokesh & Ors. Vs. State of U.P.
33
Section 302/34 I.P.C. with fine of Rs.
5,000/- each, in default thereof, to further
undergo,
three
months
additional
imprisonment; and ten years rigorous
imprisonment for offence under Section
376 I.P.C. each with fine of Rs. 5,000/-, in
default thereof, to further undergo three
months each additional imprisonment, with
an observation that all the sentences are to
run concurrently.

2. We have heard Mr. Araf Khan,
learned counsel appearing for the accusedappellants and Mr. Aruendera Singh,
learned A.G.A. for the State as also perused
the entire materials available on record.

3. This case is a classic example of
how an unscrupulous person can utilise
even a misery befallen on him to avenge
his enmity by falsely implicating his
enemy.

4. In the facts of this case, on the
basis of a written report (Exhibit-ka/1) a
first information report came to be lodged
at Police Station M.M. Gate, Agra, as Case
Crime No. Nil of 2007, under Sections 376
and 307 I.P.C. on 29th April, 2007, in
respect of the incident occurred on
27.04.2007
at
around
02:30
p.m.,
whereafter the FIR has been transferred to
the Police Station-Sadabad, where the same
was numbered as Case Crime No. 296 of
2007, under Sections 376, 307 and 452
I.P.C. The informant/P.W.-1 happens to be
the father of the victim who had gone with
his wife to his relative's place and was not
present at the place of occurrence when the
incident occurred. The victim/deceased
aged 18 years was a 1st year law student
studying in B.S.A. College, Mathura. When
she was alone in her house and her grandparents had gone towards the Jungle/forest,
at around 2:30 p.m. the accused Lokesh,
Dani, Indu/Indra, all sons of Surajmal and
Hukum, friend of Lokesh, entered the
house of the informant, grabbed the victim
who was attending to the domestic chores
and was intoxicated. The victim had
objected to it but the four accused gagged
her mouth and forcibly committed rape.
With an intent to remove the evidence of
crime, the accused then poured kerosene on
the deceased; and set her ablaze, and fled.
The victim was on the first floor of the
house, rushed out screaming and somehow
managed
to
come
down
the
stairs
whereafter neighbours tried to douse the
fire. The informant was intimated about the
incident
and
was
told
that
they
(neighbours) are bringing the victim to
Agra. The informant was asked to meet
them at S.N. Medical College, Agra.
Persons from the village accordingly
brought the victim in an injured state and
her condition was critical. The victim was
admitted in the emergency ward. She was
struggling with life and death. On being
asked,
the
victim
informed
P.W.-
1/informant about the incident. On account
of treatment and other exigencies, it was
not possible for the informant/P.W.-1 to
lodge a timely report and as the incident
has to be reported to police, the informant
has lodged the report at the police station.
The F.I.R. was initially registered at Police
Station M.M. Gate, Agra and was later
transferred
to
Police
Station-Sadabad,
District Hathras, where it was registered as
Case Crime No. 621-35 -Nil of 2007 under
Sections 376 and 307 I.P.C.

5. On the date of incident itself i.e.
27.04.2007 the dying declaration of the
victim was recorded after the doctor
certified that the victim, aged 18 years, is
clinically
fit
for
giving
her
dying
declaration. The contents of the dying
declaration are reproduced hereinafter:
34 INDIAN LAW REPORTS ALLAHABAD SERIES

"आज दिनॉक 27.4.07 को थाना-
एम.एम. गेट की सूचना के आधार पर S. N.
Medical College में Burn patient कु० प्रीदि
D/o प्रकाश वीर, उम्र-लगभग 18 वर्ष, R/O -
ऊँचा गाँव, P/S - सािाबाि, दजला-हाथरस का
D.D. (मृत्यूपूवष बयान) िजष दकया। मरीज ने
बिाया दक आज दिनाॉक 27.4.07 को समय
लगभग 2.30 pm. पर हमारे गाांव के लोकेश,
इन्दर ,िानी S/o सूरजमल िथा हुकुम S/o
अज्ञाि मेरे घर में घुस आए । मैं घर पर अकेली
थी िथा बिषन साफ कर रही थी। मेरे दपिाजी
खेि पर गए थे। माँ भी बाहर जानवरोां के बेडे में
गई थी। इन लड‌कोां ने मुझे कोई चीज सुँघाई,
दजससे मैं बेहोश होने लगी। इसके बाि इन लोगोां
ने मेरे साथ िुराचार (बलात्कार) दकया । जब मुझे
होश आने लगा िो िेखा दक ये लोग अब भी मेरे
साथ िुराचार कर रहे थे। ये लोग मेरे मुांह में
कपडा ठूस दिए थे। मुझे होश आिा िेख ये सभी
मुझे कमरे में बन्द कर दिए िथा घर में रखे दमट्टी
के िेल को मेरे ऊपर डालकर आग लगा दिए
और िरवाजा खोलकर भाग गए। आग लगने पर
मैं जोर से दचल्लाई। मेरी आवाज (चीख) सुनकर
लोग आए िथा आग बुझाए िथा Hospital में
भिी कराये। इन लोगोों के घर से हमारी पुरानी
दुश्मनी है। इसी कारण इन लोगोों ने ऐसा
ककया। इनको सख्त सजा कमलनी चाकहए।
अब मुझे कुछ नहीों कहना है।"

 (Emphasis supplied by us)

6. The victim was taken first to S.N.
Medical College, Agra, where the Doctor
examined her. The victim had 90% burns.
Smell of kerosene was present on her. The
victim
was
referred
for
her
internal
examination to the District Government
Women Hospital, Agra. Dr. Meera Mathur
(P.W.-6) conducted the internal examination
of the victim and opined as under:

"Internal Examination- No injury
seen over private parts. Pubic hairs
present. Vagina admits two fingers easily.
Hymen was old torn. Uterus anteverted.
Normal size. No burn marks present over
private parts.

Vaginal smear taken and sent to
pathology department, District Hospital,
Agra for examination for the presence of
spermatozoa.

For determination of age, case is
referred to Chief Medical Officer, Agra."

7. With reference to opinion of P.W.-
6, the vaginal swabs were sent for
pathological
report
wherein
no
spermatozoa was spotted on the swabs.

8. As per the evidence collected
during the course of the investigation, some
procedure was to be performed upon the
victim on 28th April, 2007. As the
condition of the victim deteriorated, she
was taken to Safdarjang Hospital, New
Delhi, where she ultimately succumbed to
her injuries on 14th May, 2007. The postmortem report is on record as per which the
approximate percentage of burn injuries is
90%. The cause of death was septicaemia
due to following ante-mortem external burn
injuries:

"Present on all over the body
except patches of head, abdomen, pelvis
and both feet. In state of burn injuries, line
of redness, charring, granulation tissue are
present on all involved areas."

9. In the post-mortem report,
following
is
the
status
of
internal
examination of the victim:

"In head (scalp and skull) no
abnormality detected. Brain; congested. In
neck,
naso-laryngo-pharynx-mucosed
congestion. In chest, lungs congested,
trachea and bronchi, mucosal congestion.
2 All. Lokesh & Ors. Vs. State of U.P.
35
Further in chest, no abnormality detected
in heart. In abdomen, stomach was empty,
no abnormality was detected in mucosal
wall. No abnormality was detected in
intestines,
liver,
spleen,
kidneys
and
pancreas. In pelvis, bladder was empty, no
abnormality was detected in uterus, hymen
tear in healing phase. No abnormality was
detected in rest of structures inside the
body."

The Autopsy Surgeon has further
opined that the death of the victim could be
caused due to other reasons including
attempt to suicide.

10. After the death of the victim, the
F.I.R. was converted to one under Section
302 I.P.C. in place of Section 307 I.P.C.
The investigation proceeded in the matter
wherein statement of various witnesses
were recorded. One of the persons whose
statement was recorded under Section 161
Cr.P.C. is Babu Lal who is the grand father
of the victim. The investigation concluded
with the submission of charge-sheet against
four accused on 31st July, 2007. The list of
witnesses
to
be
produced
by
the
prosecution contains a noticeable absentee
i.e. grand father of the victim, namely,
Babu Lal. Upon submission of the chargesheet under Chapter XII Cr.P.C., the
concerned Magistrate took cognizance and
referred the matter to the Court of Sessions
where charges were framed against the
accused on 13th June, .2008 under Sections
376, 302/34 and 452 I.P.C. The charges so
framed were read out to the accusedappellants, who denied the accusation and
demanded trial.

11. The prosecution in order to prove
its case has produced the first informant
Prakash Veer as P.W.-1. This witness has
supported the prosecution case in his
examination-in-chief. He has clearly stated
that when his parents (grand parents of the
victim) had gone towards the Gher and
forest, in the afternoon four accused
entered in the house at around 2:30 P.M.;
grabbed the victim; committed rape upon
her; and whereafter set her ablaze by
pouring kerosene so that the evidence could
be destroyed. He has proved the contents of
the first information report lodged in the
matter. He has stated that the victim was
admitted uptill 02.05.2007 at S. N. Medical
College, Agra whereafter she was taken to
Safadarganj Hospital, Delhi where she
died.

12. In the cross-examination, P.W.-1
has stated that he and P.W.-3 are real
brothers. They live in a double story house
where their shares are already segregated.
Northern portion of the first floor fell in the
share of P.W.-1, while southern portion fell
in the share of P.W.-3. This witness is a
Law Graduate although he has not got
himself
registered.
In
the
crossexamination, this witness has admitted that
his brother (P.W.-3) has five children, who
were living in the same house. He has
denied the suggestion that either the victim
set herself on fire or she caught fire
accidentally while cooking food. He has
further stated that while taking the victim to
hospital, the victim informed her mother
that in case she was present, the incident
could be avoided. He has stated that while
the victim was being taken to Ashoka
Hospital, she was not conscious. She was
largely unconscious and could open her
eyes in between. The seriousness of victim
increased and she was unconscious when
she reached S.N. Hospital, Agra. It is then
stated that around 06:00 p.m. the victim
became conscious after she was given first
aid treatment. He also stated that he was
with his daughter in the emergency room
and she narrated the entire incident to him.
36 INDIAN LAW REPORTS ALLAHABAD SERIES
He denied the suggestion that his parents
were at home at the time of occurrence. He
has also denied previous enmity between
him and the accused persons. He has
nevertheless admitted that in 1989 an
incident occurred in respect of which cross
cases were lodged between father of
accused and the informant's family, in
which a compromise was ultimately
entered between them. He has further
denied the existence of any criminal case.

13. P.W.-1 has been cross-examined at
length and he has disclosed the topography
of his house. There exists 5-6 rooms in the
ground floor of the house while another 5-6
rooms exist on the first floor of the house.
There is an open courtyard on the upper
floor and the roof is open on the western
side. There is about 10 feet height boundary
around the house of P.W.-1. There is a
kitchen on the upper floor measuring 8 x 7
feet. At the time of incident, the parents of
the informant/P.W.1 were present in the
house. While the mother of P.W.-1 lived
with P.W.-3, his father was living on his
side. He has admitted that he had left along
with his wife and is not aware as to what
was cooked by his daughter. He has denied
any knowledge about the person who
doused the fire after the victim came down
the stairs.

14. P.W.-1 has also admitted that after
the victim was admitted to the emergency
ward there was no improvement in her
condition which worsened later. P.W.-1 in
his cross-examination has stated that the
statement of his father under Section 161
Cr.P.C. about him along with his wife
(P.W.-1 and P.W.-2) to relative's place at
Agra and that grand-father Babu Lal and
victim alone were in the house is correct.
He has admitted that statement of his father
under Section 161 Cr.P.C. was recorded in
his absence. This witness has lastly stated
that his statement before the court is based
upon the hearsay information received from
others.

15.

P.W.-2,
namely,
Kamlesh
Chaudhary (wife of first informant/P.W.-1)
happens to be the mother of the victim and
has supported the prosecution case. She has
substantially adopted the stand taken by
P.W.-1 at the stage of trial. In her crossexamination she has admitted that in the
incident in question, the hands of her
father-in-law Babu Lal also got burnt.
However, Babu Lal had not accompanied
the victim to the hospital. She has admitted
that at the time of incident her father-in-law
Babu Lal was living with her. She has also
admitted that there was no estrangement,
irritation or enmity between her father-inlaw and herself. P.W.-2, has rather admitted
that her father-in-law used to love them. A
specific statement was made that there is no
loss of love between the victim and her
grand father. It is also admitted that on the
date of the incident meals were prepared
for her father-in-law by the victim.

16. P.W.-3 Raj Bahadur, who is the
uncle of the victim, in his crossexamination has stated that he saw the
accused running in the lane soon after the
incident of fire. He claims that he raised an
alarm after he saw the victim and with the
help of villagers the fire was doused by
him. He has also stated that the victim was
taken to Agra in the vehicle of Yogesh for
treatment. He has fully supported the
prosecution case. This witness has been
cross-examined. He has stated that his wife
and children live with him in the same
house and the age of his eldest daughter is
20 years. This witness has stated that about
half an hour was consumed in dousing the
fire.
2 All. Lokesh & Ors. Vs. State of U.P.
37

17. P.W.-4 was posted as Head
Moharir at Police Station M.M. Gate
District Agra on the relevant date when the
F.I.R. was registered. He has proved the
Chik F.I.R. He has admitted that vide Entry
No. 28 dated 27th April, 2007 in the G.D.,
an entry was made in the police station
with regard to a burn patient having been
admitted with 90% burns.

18. P.W.-5 is Doctor Ramkumar
Gupta who has proved the pathological
report as per which no dead or live
spermatozoa has been found on the victim.
P.W.-6 is Doctor Meena Mathur, who had
conducted the internal examination of the
victim, soon after she was referred by the
S.N. Medical College, Agra to the District
Government Women Hospital. This witness
has clearly stated that there were no injury
on the private parts of the deceased and her
hymen was old torn. P.W.-7 Shivraj Singh
was posted as Sub-Inspector at Police
Station
M.M.
Gate,
Agra
and
has
incorporated the contents of the F.I.R. in
the case diary and referred the matter to the
concerned Police Station i.e. Police StationSadabad, District Hathras.

19. P.W.-8 Udai Veer Singh Baliyan is
the Investigating Officer, who was posted
at Police Station Sadabad. He has admitted
that in the statement under Section 161
Cr.P.C. it is recorded that the victim Preeti
is substantially burnt and is not in a
position to speak and on account of
obstruction in the trachea an operation is
proposed to be conducted on 28th April,
2007. P.W.-1, however denied giving copy
of the written report to him. He has also
admitted that the victim was not in a
position to give her statement and no
inquiry was made from the concerned
doctor in that regard.

20. P.W.-9 Mahesh Chandra, the then
Assistant Sub-Inspector posted at Sarojini
Nagar Police Station, New Delhi within the
territorial limits of which Safdarjang
Hospital is situated, has conducted the
inquest of the deceased at Delhi and has
also proved the same.

21. P.W.-10 Anil Kumar Soan is the
Officer of the Forensic Science Laboratory,
Agra who has proved the forensic report as
per which no semen has been found on the
victim.

22. P.W.-12 Ranveer Singh was the
first Investigating Officer from the police
Station Sadabad. This witness has recorded
the statement of Babu Lal, who is the father
of P.W.-1. The extract of the statement of
Babu Lal recorded under Section 161
Cr.P.C. is referred to in the statement of
P.W.-12, which is reproduced hereinafter:-

"बाबूलाल ने मुझे अपने ब्यान में
बिाया था दक रसोई में प्रीदि ने खाना बनाने की
िैयारी भी की थी। प्रीदि अचानक जल गई।
बाबूलाल प्रीदि के िािा है। बाबूलाल ने अपने
बयान में मुझे यह भी बिाया था दक मैं प्रकाश
वीर वाले मकान के दहस्से में रसोई के बराबर
वाले कमरे में पहली मांदजल पर मौजूि था। प्रीदि
घर के बाहर खरांजे पर जली हुयी अवस्था में
पहुांची थी। बाबूलाल से मेरे द्वारा यह पूछने पर
दक आग कैसे लगी िो बाबूलाल ने मुझे बिाया
दक इस बारे में मुझे कोई जानकारी नहीां है।
बाबूलाल ने मुझे बताया था कक जब वह
खरन्जे पर पहोंचा जहााँ प्रीकत जल रही थी तो
वह केवल बचाओ-बचाओ कह रही थी।
बाबूलाल ने अपने बयान में मुझे बताया था
कक जब प्रीकत जल रही थी तो उसने नहीों
बताया था कक उसे ककसी व्यक्ति ने जलाया
था।"
38 INDIAN LAW REPORTS ALLAHABAD SERIES

23. This witness has also recorded the
statement of Raghuraj under Section 161
Cr.P.C., who has stated that the girl Preeti
had not taken name of anyone in
connection with the fire. The statement of
Tara Singh has also been recorded by this
witness in which he has stated that on the
date of incident, while burning, she
(victim) did not complain that someone had
set her on fire or that someone had raped
her. This witness has also recorded the
statement of Bhuri Singh, who has stated
that the victim had caught fire while
cooking. She had not told that accused
Lokesh, Dani, Indal, Hukum Singh raped
her and thereafter set her on fire. Statement
of Ramesh has also been recorded by P.W.-
12 in which he has reiterated the same
version as was stated by Bhuri Singh.
Similarly, in the statement of Bhudevi, wife
of Bhajan Lal, which has been recorded by
P.W.-12 it has been stated that the victim
has not taken any name and she told that
she had caught fire while cooking food.

24. Dr. R. B. Lal, has been produced
as P.W.-13, who had given the fitness
certificate to the victim at the time of
recording of her dying declaration. He has
clearly stated that the injured was burnt
over 90% of her body and her condition
was deteriorating continuously. However,
the victim was conscious but her pulse was
weak. He has stated that when he inquired
from the victim as to whether any untoward
act has been committed, the victim gestured
in affirmative. In the cross-examination this
witness has admitted that he had not
inquired about the cause of burn as the
victim was not in a good condition and
attempts were being made to save her life.
A question was posed to this victim as to
whether the questioning of victim could
have posed any risk to her life? In reply, the
Doctor opined that when all attempts were
being made to save her life, he was not
inclined to interfere with the team attending
the victim. He has also stated that the
condition of the victim was much below
normal but she was conscious. He has also
stated that just because on going treatment
be not adversely affected, as such, he had
not made any unnecessary queries from the
victim.

25. P.W.-14 Rajesh Kumar Prajapati is
the Deputy Collector of Mathura, who was
present at the time of recording of dying
declaration of the victim. He has stated that
the victim was conscious and the Doctor
had certified her to be fit to give her
statement. This witness however has not
been able to tell as to who was the Doctor
present and what is the difference between
a Doctor and Compounder. He has admitted
that there is no recital in the declaration of
the victim that the statement was read out
to the victim nor the Doctor was inquired
as to how the incident occurred with the
victim.

26. P.W.-15 N.K. Chaudhary is the
Investigating Officer, who has proved the
topography of the house in which the incident
occurred. P.W.-16 is Dr. Alexander F.
Khanva, who is the Autopsy Surgeon and has
proved the autopsy report. P.W.-17 Rakesh
Chandra Sharma, who was the Investigating
Officer and submitted the charge-sheet in the
matter. P.W.-18 Jagdish is the village
Chaukidar, who has stated that he informed
the concerned police station about the
incident after he acquired knowledge of it on
phone from his wife. He has stated in his
cross-examination that villagers informed
him that while the victim was cooking food,
she accidentally caught fire and got burnt.

27. On the basis of above evidence
produced by the prosecution, the statements
2 All. Lokesh & Ors. Vs. State of U.P.
39
of
the
accused-appellants
have
been
recorded under Section 313 Cr.P.C. in
which the accused have denied the
accusation made against them. They have
stated that since semen has not been found
on the victim the commissioning of offence
of rape is not proved. They have also stated
that evidence has been falsely created and
they have been implicated in the present
case due to previous enmity.

28. On the basis of evidence so led in
the matter by the prosecution the court
below has come to the conclusion that the
prosecution has proved its case beyond
reasonable doubt and consequently the
accused-appellants are convicted for the
offences under Sections 452, 302/34 and
376
I.P.C.
and
sentenced
to
life
imprisonment
with
fine,
as
already
recorded above.

29. Challenging the judgment of the
court below Mr. Araf Khan, learned
counsel for the accused-appellants submits
that the accused-appellants have been
falsely implicated in the matter due to told
enmity and false evidence has been created
to implicate them. It is submitted that grand
father of the victim, namely, Babu Lal was
present in the house and had clearly
admitted in his statement recorded under
Section 161 Cr.P.C. that the victim had
accidentally caught fire while cooking food
and that is why the prosecution deliberately
excluded him from the list of the witnesses
prepared in the charge-sheet. Mr. Khan
further submits that the investigation is
faulty and attempt has not been made to
ascertain the truth and for such purposes
relevant witnesses, who were present in the
house, have not been produced. It is urged
that apart from Babu Lal, others who were
present in the house were the family
members of P.W.-3, who have not been
produced. Mr. Khan further submits that
the allegation of rape upon the victim is not
substantiated as no injury was found on her
and even the pathological report does not
support commissioning of rape. He further
submits that the dying declaration is not
reliable in the facts of the present case
since the victim was not in a position to
give any statement. He next submits that no
satisfaction is recorded by the Doctor about
the victim being in a fit mental state to give
her
statement.
No
such
satisfaction
otherwise
is
recorded
by
the
Magistrate/Deputy Collector, either. He
submits
that
contents
in
the
dying
declaration regarding parents being present
in the village is otherwise falsified by the
statement of prosecution witnesses i.e.
P.W.-1 and P.W.-2, which clearly shows
that the narration of the facts in the dying
declaration are incorrect. He also submits
that the condition of the victim was critical
and her trachea was blocked for which
operation was proposed and, therefore, the
victim otherwise was not in a position to
speak or to get her dying declaration
recorded.

30. Mr. Khan, learned counsel,
therefore, submits that this is a case of
accidental fire during cooking of food by
the victim and the family members have
taken advantage of it to falsely implicate
the accused and thereby settle their old
enmity. It is urged that the evidence on
record has not been examined in correct
perspective by the trial Court.

31. It is also urged on behalf of the
accused-appellants that the incident was
reported to police at Police Station Sadabad
itself by P.W.-8 and the statements of
various witnesses including Babu Lal,
Raghuraj Singh, Tara Singh, Bhuri Singh
and Bhudevi etc. were recorded as per
40 INDIAN LAW REPORTS ALLAHABAD SERIES
which it was a case of accidental burn and
in order to get over it a subsequent F.I.R.
was lodged, as an after-thought, falsely
implicating the accused-appellants on the
basis of which the accused-appellants have
been convicted.

32. Sri Arunendra Singh, learned
A.G.A. on the other-hand submits that the
dying declaration has been proved wherein
specific allegations of rape and pouring
kerosene upon the victim are levelled along
with the allegation of setting her on fire
and,
therefore,
the
prosecution
has
established its case beyond reasonable
doubt. Mr. Singh also submits that P.W.-3
has otherwise seen the accused persons
rushing out of lane soon after the incident
which also supports the prosecution case
about offence being committed by the
accused. He thus submits that this is a case
in which a young girl has been raped and
then burnt to death which warrants no
leniency and, therefore, the conviction of
the
accused-appellants
merits
no
interference.

33. Prosecution case is that while first
informant (P.W.-1) and his wife (P.W.-1 and
P.W.-2) were out of the house and the
victim alone was engaged in the domestic
work in the house, all the four accused
entered in the house in the afternoon at
about 2:30 p.m. and finding the victim
alone, grabbed her and sniffed some
intoxicating substance on account of which
she lost her consciousness. The accused
also gagged her mouth by a cloth and
subjected her to rape, one after the other
and with an intent to alienate the evidence,
they poured kerosene upon the victim and
she was set ablaze. The victim in flames
came down from the upper floor and the
neighbours arrived and the fire was doused.
The victim was then taken to Agra and the
informant was also asked to reach S. N.
Medical
College,
Agra.
The
victim
admittedly was 18 years of age and was a
student of L.L.B. first year. The prosecution
in order to prove its case has essentially
relied upon oral testimony of prosecution
witnesses of fact and has also relied upon
the dying declaration wherein the victim
has specifically implicated the accused of
subjecting her to rape and thereafter, setting
her ablaze.

34. The trial Court has found the
witnesses to be reliable and the dying
declaration has also been found credible
and reliable which formed the basis for
conviction of the accused. The challenge to
the prosecution case is primarily laid on the
ground that dying declaration is not
reliable; prosecution witnesses have made a
false deposition on account of prior enmity
between families of the informant and the
accused. Mr. Khan, learned counsel for the
accused-appellant also submits that the
available evidence on record has not been
produced by the prosecution and it toed the
line
of
reasoning
suggested
by
the
informant
(P.W.-1)
for
settling
their
personal scores.

35. In order to examine the contention
advanced on behalf of the defence, we
proposes to deal with all three aspects
separately, one by one.

36. Before proceeding to discuss the
issues raised in this appeal we may note
some background facts. The three accused,
namely Lokesh, Dani and Indu are the sons
of one Surajmal who had inimical relations
with the informant. This enmity was on
account of a litigation between the parties
commenced in the year 1989 in which a
compromise is alleged to have been entered
between
the
parties.
Some
criminal
2 All. Lokesh & Ors. Vs. State of U.P.
41
proceedings also ensued between the
parties. This defence version is clearly
admitted by the prosecution witnesses.
P.W.-1 in his statement. P.W.-1 has stated
that though there was an enmity between
the parties but he maintains no enmity
towards the accused though the accused
may be inimical to him. Cross cases were
lodged between the informant and the
father of the accused. A evasive reply was
given in respect of criminal proceedings.
Other prosecution witnesses have also not
disputed the factum of prior enmity
between the parties. The factum of enmity
otherwise
stands
acknowledged
categorically
in
the
alleged
dying
declaration of the victim. From the
evidence available on record, therefore, it is
more or less admitted that the father of the
accused,
namely,
Surajmal
and
the
informant had inimical relations in the past
on
account
of
civil
and
criminal
proceedings. The prosecution witnesses
have also alleged some compromise but the
details in that regard have not been placed
by the prosecution in evidence. The law is
settled that enmity is a double-edged sward
inasmuch as it can be a cause for
commissioning the offence and also for
falsely implicating a person. The evidence
on record, in this case, therefore, will have
to be examined carefully in the context of
inimical relations between the parties.

37. The evidence adduced by the
prosecution reveals that soon after the
incident occurred on 27.04.2007, the victim
was taken to S.N. Medical College, Agra.
For her internal examination, the victim
was referred to the District Government
Women Hospital, Agra. Notwithstanding
severe burn on major parts of the body, the
abdomen and her private parts were saved
fortunately. The internal examination of the
victim shows that there were no injury over
the private parts of the victim. Victim's
hymen was found to be old torn. There was
no burnt marks present on the private parts
of the victim. The injury report prepared by
P.W.-6 has been proved by the doctor
during the course of trial. The medical
evidence also shows that vaginal swabs of
the victim were sent for pathological
examination wherein no spermatozoa has
been found to exist on the victim. The
medical evidence on record, therefore, does
not support commissioning of rape upon
the victim.

38. We find substance in the
contention of the appellants' counsel that in
an incident where a young girl/lady is
forcibly subjected to an offence under
Section 376 I.P.C. by four persons, some
sort of injury would be caused to her. The
prosecution case of rape, therefore, does
not find corroboration from the medical
evidence. This aspect has not been
explained by the prosecution neither before
the court below nor before us.

39. Prosecution case heavily relies
upon the dying declaration of the victim
which has already been extracted above.
This
dying
declaration
records
the
satisfaction of the Doctor that the victim
was clinically fit for recording of her dying
declaration.

40. The contents of the dying
declaration are that the victim/deceased
was alone at home and was cleaning
utensils when the accused entered in the
house. The victim has categorically stated
that her father had gone to the field and her
mother was attending the animals in their
enclosure (Bada). This statement of fact
contained
in
the
dying
declaration,
however, does not find support from the
prosecution witnesses themselves. The
42 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence, in regard to the presence of
victim's parents, is just the otherwise. The
father of the victim has been adduced in
evidence as P.W.-1 who has clearly stated
that he had left to a relative's place early in
the morning on the date of incident. Similar
statement is made by the mother of the
victim, who appeared as P.W.-2. The
version
of
prosecution
in
the
first
information report, lodged after two days of
the incident, is that the parents of the victim
had gone to a relative's place at the time of
occurrence. The evidence of prosecution,
therefore, clearly proves that the recital in
the dying declaration about victim's father
having gone to the field and mother to the
animals' enclosure (Bada) is incorrect. This
contradiction in the dying declaration and
the testimony of prosecution witnesses
compel us to examine more carefully the
contents of the dying declaration.

41. The attending circumstances in
which the dying declaration of the deceased
has been highlighted on behalf of the
accused-appellants at length. Statement of
P.W.-1 has been relied upon in which he
has clearly admitted that by the time the
victim reached Ashoka hospital, she was
largely unconscious and only at times
opened her eyes. P.W.-1 has categorically
stated that the seriousness of victim
increased with the passage of time. It is
also stated that when she arrived at S.N.
Hospital/Medical College, Agra she was
unconscious. It is then stated that the victim
became conscious at around 6:00 pm. The
doctor who has examined the victim prior
to recording of her dying declaration has
stated that the victim had sustained
superficial to deep burn injuries on
substantial part of her body and the burn
content is to the extent of 90%. The
condition of the victim was continuously
deteriorated. On being asked by the doctor
as to whether any untoward incident has
occurred with the deceased, she nodded and
thereby answered in affirmative, by way of
her gesture. The doctor has not stated that
the victim made any statement herself. This
doctor has been cross-examined and a
specific question was put to him as to
whether any effort was made to ascertain
the reason of burn caused to the victim.