Roshan & Ors. vs State Of U.P.

Hon'Ble Abdul Shahid, J.

Heard Mr. Madan Singh, learned counsel for the surviving appellant no. 2 Har Kishan and Sri Vinay Kumar Pandey, learned A.G.A. for the State.

This criminal appeal is directed against the impugned judgment and order dated 06.02.1984, passed by the learned III Additional Sessions Judge, Moradabad, in Sessions Trial No. 605 of 1981, whereby the appellants were convicted and sentenced under Section 452 IPC to three years' rigorous imprisonment (R.I.) and under Section 376 IPC to seven years' rigorous imprisonment (R.I.) and a fine of Rs. 700/- each, with a further sentence of one and a half years' rigorous imprisonment in default of payment of the fine.

On perusal of the record, it transpires that appellant no. 1, Roshan, has already expired. Accordingly, the criminal appeal, insofar as it relates to appellant no. 1, has already been dismissed as abated vide order dated 17.05.2022. Thus, the present appeal survives only in respect of appellant no. 2, Har Kishan.

Learned counsel for the appellant has submitted that only two persons were named in the FIR. He has further submitted that the statement of the victim was neither recorded during the trial nor was her statement recorded under Section 164 Cr.P.C.; her statement was recorded only under Section 161 Cr.P.C. He has next submitted that the alleged incident took place on 16.10.1980 and that the victim succumbed to her injuries eleven days thereafter. Consequently, the case was converted to one under Section 304 read with Section 34 IPC. Charges were framed against both the accused persons for the offences punishable under Sections 452, 376 and 304/34 IPC. However, both the accused persons were convicted and sentenced only for the offences punishable under Sections 452 and 376 IPC.

Learned counsel for the appellant has further submitted that there was no external injury on the body of the victim and that her death was not caused by an injury inflicted by the male organ of the accused. He has next submitted that the incident occurred in the year 1980 and a period of more than 40 years has since elapsed. Hence, even if the appellant is found guilty, he may be released and sentenced to the period already undergone.

Learned counsel for the appellant has placed reliance upon the judgment in Dhan Singh Vs. State of U.P., 2010 (68) ACC 610, which relates to an offence under Section 304(1) IPC. He has also placed reliance upon the judgment of the Hon'ble Supreme Court in Bishan Singh and Another Vs. State, 2008 (60) ACC 46, wherein the accused was convicted for the offences punishable under Sections 147 and 308/149 IPC. Per contra, learned A.G.A. has submitted that the appellant has committed a very serious and heinous offence, which has been established by the testimony of the eyewitnesses and duly corroborated by the medical evidence. It has further been submitted that the victim was pregnant at the time of the alleged incident and succumbed to the injuries caused by the appellant after 11 days of the incident. The postmortem report also indicates the presence of a foetus in the womb of the deceased, which fact was duly confirmed by the doctor who conducted the postmortem examination. Learned A.G.A. has further submitted that considering the gravity and seriousness of the offence, the appellant is not entitled to any relaxation or leniency. Therefore, the appeal is liable to be dismissed.

The prosecution case was set in motion on the basis of the written complaint, Ex. Ka-1, dated 16.10.1980. Bhagwan Das, the father-in-law of the victim, was examined as P.W.-1. The prosecution case, in brief, is that the informant stated that at about 2:00 a.m. during the night, he and his wife were sleeping in their house situated at Uttar Muhana, while his son, Shaunath, and his wife, the victim, were sleeping in the adjoining house. On hearing the cries of his son, Shaunath, and his wife, the informant and his wife woke up and proceeded towards their house. They saw that four persons had entered the house. Out of them, one person was committing an indecent act with his daughter-in-law, while the other three persons had overpowered and restrained his son. There was light from a small oil lamp (dibia) inside the house, in which the informant identified Roshan, son of Nyawar, and Har Kishan, son of Sukhwa, both residents of his village. There were four persons in all, and the informant stated that he could identify the other two persons if they were brought before him. When the informant and his wife tried to intervene, the accused persons threatened them with a country-made pistol (tamancha). Thereafter, all four accused persons, one after another, committed the said indecent act with his daughter-in-law. After the accused persons left the place, the informant and his family raised an alarm, upon which several persons from the village gathered there. They saw the accused persons fleeing from the spot. The informant further stated that Roshan bore enmity towards him as he had refused, at Roshan's instance, to arrange the marriage of his widowed daughter with a person from Roshan's relations. He further stated that two days prior to the incident, Roshan's son had plucked sugarcane from his sugarcane field, to which his daughter-in-law had objected. At that time, Roshan had threatened her by saying that she should not worry and that he would teach her a lesson within a day or two.

A motive has been specifically assigned in the written complaint, Ex. Ka-1. On the basis of the said complaint, Ex. Ka-2, the check FIR was registered. The case was registered under Sections 452 and 376 IPC. Upon completion of the investigation, a charge-sheet was submitted against the accused, namely, Roashan and Har Kishan.

The medical examination of the victim was conducted on the same day of the incident, i.e., 16.10.1980, at 1:30 p.m. At the time of the incident, the victim was 22 years of age. As per the medical examination report, Ex. Ka-10, the victim was a lady of average build and was pregnant for approximately 22 weeks. No external injury marks were found on her body, nor were there any signs of struggle. Semen was found on her petticoat, which was duly sealed. The medical report further records that she was habituated to sexual intercourse, and the smear taken from the posterior fornix was positive for spermatozoa.

The medical officer opined that sexual intercourse had taken place with the aforesaid lady, although the definite duration thereof could not be ascertained.

The medical evidence further establishes that the victim was a married woman and was carrying a pregnancy of approximately 22 weeks. The finding of semen on her petticoat and the positive smear for spermatozoa lend corroboration to the prosecution case. The medical examination report, Ex. Ka-10, thus provides material corroboration to the prosecution version.

The inquest report was prepared on 27.10.1980. Thereafter, the postmortem examination of the deceased was conducted on 28.10.1980. During the postmortem examination, the deceased was found to be carrying a foetus of approximately six months. The cause of death was opined to be septicemia resulting from injuries to the internal and external genital organs. The postmortem report is Ex. Ka-15.

Thus, the ocular version of the prosecution stands materially corroborated by the medical evidence, including the medical examination report of the victim, Ex. Ka-10, and the postmortem report of the deceased, Ex. Ka-15.

Father-in-law of the victim Bhagwan Das who has been examined as P.W-1 stated that the name of his son is Shaunath Singh and his daughter-in-law is victim. He has two unmarried daughters and three married daughters, all of whom have children. About two years and five months prior to his deposition, at about 2:00 a.m., he and his wife were sleeping in a room adjoining the room in which his son and daughter-in-law were sleeping at Pahad Muhana. The accused Roshan and Har Kishan are residents of his village and are not related to each other. One of his daughters had become a widow. Roshan wanted him to marry his widowed daughter into his relations, but he refused, on account of which Roshan started bearing enmity towards him.

PW-1 further stated that two days prior to the incident, the son of accused Roshan had plucked sugarcane from his field. His daughter-in-law Victim objected to the same, whereupon an exchange of abuses took place between them. On coming to know of the incident, Roshan came to his house and abused them. At that time, Roshan threatened his daughter-in-law, stating that she should not abuse him and that he would teach her a lesson within a day or two.

PW-1 further deposed that on hearing the cries of his daughter-in-law, he and his wife woke up and went into the room where she was sleeping. A small oil lamp (dibia) placed in a corner of the room was burning. He saw four persons inside the room, namely, accused Roshan and Har Kishan and two unknown persons. One of them was lying over his daughter-in-law and committing rape upon her, while the remaining three persons also committed rape upon her one after another. The accused persons continued threatening them. All four accused persons were carrying country-made pistols (tamanchas). The accused persons had also overpowered his son and were pressing him down. PW-1 and his wife attempted to raise an alarm, but the accused persons prevented them from doing so and threatened that if they raised an alarm, they would be shot. After committing rape upon his daughter-in-law, the accused persons left the place. Thereafter, PW-1 and his wife raised an alarm, upon which two or four persons came there; however, by that time, the accused persons had already fled.

PW-1 stated that at the time of the occurrence, his daughter-in-law was about five and a half months pregnant. He further stated that at about 6:30 a.m. the next morning, he went to Ghanoura to lodge the report, accompanied by his daughter-in-law. About ten steps outside the police station, they met a person who enquired about their condition. After being informed about the incident, that person wrote down the report and read it over to PW-1. After hearing it, PW-1 affixed his thumb impression and stated that the contents were correct. The said report was marked as Exhibit Ka-1. Thereafter, PW-1 went to the police station and handed over the report to the Diwan Ji. His daughter-in-law was sent for medical examination. PW-1 further stated that his daughter-in-law died eleven days thereafter.

In his cross-examination, PW-1 stated that his eyesight had become weak by the time of his deposition, though previously he could see properly. The house of accused Har Kishan was situated towards the north of his house, that of Hamira towards the south, and that of Natthu Jat towards the west, while there was vacant land towards the east. On the night of the incident, their cattle were kept in the thatched shed situated on the western side. The room of Shaunath was situated towards the east of his room. The doors of the room were not closed and the doors of several rooms in the house did not have shutters. His two other daughters were also sleeping in the room occupied by PW-1 and his wife. One of them was aged about 10–11 years and the other about 14–15 years.

PW-1 stated that on hearing the cries, he and his wife came into the courtyard. He denied the suggestion that there was any physical altercation between the accused persons and his son and daughter-in-law. He stated that when he entered the room, accused Roshan was committing rape upon his daughter-in-law. According to him, the entire occurrence involving all four accused persons lasted about 45 minutes to one hour. He did not see any quarrel or physical assault between the accused persons and his daughter-in-law. He explained that since the accused persons were displaying country-made pistols, there was no question of any physical fight. His daughter-in-law had scratches on her face, though he did not notice that her clothes were torn.

PW-1 further stated that he and his wife remained in the same room while the accused persons continued committing rape upon his daughter-in-law. His daughter-in-law was lying on a cot placed near the western wall, with the cot extending from east to west. His son was also on the same cot, but the accused persons had pressed him down on the floor. His daughters did not enter the said room. He stated that his daughter-in-law had gone inside the room and, when the accused persons pointed their country-made pistols, PW-1 and his wife sat inside the room. There was a distance of about one or two steps between PW-1 and his son. His two daughters did not wake up and remained in the room where they had been sleeping.

With regard to the land dispute, PW-1 stated that he and Har kishan had a joint holding measuring about 18 bighas, in which he had a half share. He had subsequently sold his share to Samarpal. The sale took place about one year after the incident. He stated that he had sold the land comprised in his share to Natthu and Natthu had thereafter sold it to Samarpal. He did not know whether Samarpal was a witness in the present case. Samarpal's brother is Balveer.

PW-1 admitted that he had not lodged any report regarding the incident of sugarcane being plucked from his field. He had disclosed the matter to some persons but not to others, stating that such minor disputes used to occur frequently. He had also told some persons in the village that accused Roshan wanted him to marry his widowed daughter into his relations; however, he could not recall the names of the persons to whom he had disclosed this fact.

PW-1 stated that from the time of the occurrence until he left for the police station, he remained at his house. Ghanoura Mandi was about one kilometre from his village and he went there on foot. Apart from his daughter-in-law, no other person accompanied him. His son was left at home and, therefore, did not accompany them. He did not take the village chowkidar or any other person with him. While proceeding from the village to the police station, he and his daughter-in-law were crying and beating their chests. Several persons met them on the way, but none of them enquired as to why they were crying.He further stated that he did not know Devaraj previously and could not identify him even at the time of his deposition. He did not know his caste. The paper on which the report had been written remained with the person who had written the report. PW-1 had not met Devaraj thereafter. He further stated that when the partition between him and Har Kishan took place, there had been considerable quarrelling between them.

PW-1 stated that he did not know whether accused Roshan was the brother-in-law (saadu) of accused Har Kishan's brother. He stated that both Roshan and Har Kishan were Jatavs and that he was also a Jatav. Har Kishan was his real paternal cousin. PW-1 stated that he had about nine bighas of land in the village and that, considering all his holdings, the total land was nine bighas. He had asked Har Kishan also to sell the land, but Har Kishan had refused. He denied the suggestion that he had not witnessed the occurrence and that he had falsely implicated Har Kishan because Har Kishan had refused to sell the land at his instance. He also denied the suggestion that the report in the present case had been got written through Samarpal. He stated that he did not know whether Devaraj was a relative of Samarpal.

After his statement was read over to him, P.W.-1 verified and affirmed the same. In his examination-in-chief, P.W.-1 deposed that he had fully supported the prosecution case, as set out in Ex. Ka-1, the written complaint, and Ex. Ka-2, the check FIR. The incident took place inside the house, and P.W-1 supported the prosecution case regarding the entire incident that occurred with his daughter-in-law.

Husband of the victim Shaunath, P.W-2 has stated that the name of his wife was victim. He stated that the occurrence had taken place about two years and five months prior to his deposition. At about 2:00 a.m., he and his wife were sleeping on a cot in the north-eastern room of their house, while his mother and father were sleeping in the adjoining room towards the west, near the thatched shed where the cattle were tethered. The door of their room was open and a small oil lamp (dibia) was burning inside. While PW-2 and his wife were sleeping on the same cot, four persons entered their room and overpowered both of them, as a result of which PW-2 woke up. When they raised an alarm, his parents came into the room. The accused persons pressed PW-2 down on the floor while pointing a country-made pistol (tamancha) at him. Thereafter, all four accused persons committed rape upon his wife, one after another. Among the four persons were the accused persons Roshan and Har Kishan, who were present in Court. After committing rape upon his wife, all four accused persons fled from the spot. Thereafter, PW-2 and his family raised an alarm, upon which Balveer, Samarpal, Natthu and others arrived. PW-2 narrated the entire incident to them.

PW-2 further stated that on the following morning, his wife and father went to the police station to lodge the report, while he remained at home. He stated that prior to the occurrence, his wife used to go to the fields for agricultural work, but she stopped going thereafter. Her treatment was undertaken following the occurrence.

In his cross-examination, PW-2 stated that there was a distance of about two to three feet between his room and the room occupied by his parents and the two rooms were not joined together. On the night of the occurrence, their cattle were tethered inside the thatched shed. He explained that he had told the Investigating Officer that the cattle were tied outside and that he had kept the door open because there was no door to the cattle shed which could be closed. The main entrance door of his house also did not have shutters. He further stated that when the accused persons were committing rape upon his wife, there was no fight or quarrel and her clothes were not torn. Her hands and legs had been restrained while one person was committing rape upon her. Out of fear, PW-2 remained sitting silently on the floor. He did not attempt either to escape or to rescue his wife. His clothes were not torn and there was no physical assault between him and the accused persons.

PW-2 further stated that his parents also remained sitting silently inside the room. There was only one cot in his room. The oil lamp (dibia) had been placed behind a projection/recess in the southern wall of the room. His two younger sisters did not enter his room and remained in their own room. PW-2 stated that he did not go to the police station as he had to look after the household. He further stated that after the accused persons fled, he and his family did not go to the house of either of the accused persons who were present in Court. None of the family members of Har Kishan came to the spot in response to their cries for help. Other villagers came there, whose names were disclosed by PW-2.

PW-2 denied the suggestion that the accused persons had not committed any indecent act or rape upon his wife in his presence and that he was falsely naming them on account of previous enmity. He maintained that the accused persons had committed rape upon his wife in his presence. Both the accused persons were named in the FIR, and upon completion of the investigation, a charge-sheet was filed against them. Both the accused were identified by the witnesses, and there appears to be no sufficient or plausible reason for their false implication in the present case. There is also no apparent reason why the witnesses would falsely implicate the accused persons while allowing the real culprits to escape from the spot.

The victim, in her Statement under Section 161 CrPc, on the same day of incident i.e 16.10.1980 while confirming the occurrence, stated that on the previous night, she and her husband were sleeping in the room situated on the northern side of the house. The door of the room was not locked. Her mother-in-law and father-in-law were sleeping in another room of the house. During the night, four persons, including Roshan son of Nyadar and Har Kishan son of Sukhwa, both residents of their village, along with two other persons whom she could identify if brought before her, entered the house carrying country-made pistols. They overpowered both her and her husband. Three of them held her husband down, while the fourth, by threatening her with a country-made pistol, forcibly committed rape upon her. Out of fear, she could not resist or raise much alarm. At that time, a small oil lamp (dibia) was burning in the room. On hearing their cries, her mother-in-law and father-in-law also came there. They saw and clearly identified the accused persons. However, the accused also threatened them and made them remain silent, due to which they too could not raise much alarm. After committing rape upon her, the accused persons left the house. Thereafter, the victim and her husband raised an alarm, upon which several other persons from the village also arrived.

There has been an existing enmity between them and Roshan. Her father-in-law had refused to marry his daughter into the family as desired by Roshan. Further, two days prior to the incident, Roshan's son had plucked produce from their field in her presence. When she objected to this, Roshan and his son, being Jatavs, threatened that they would teach her a lesson. Her medical examination has already been conducted and she has also lodged a report regarding the occurrence. She requested that immediate action be taken against the accused persons.

The statement of the victim was recorded on the very same day of the incident, and the FIR was also lodged on the same day. The victim had sustained injuries to her external and internal genital organs and subsequently succumbed to those injuries. As per the postmortem report, she was approximately six months pregnant at the time of the incident.The victim had categorically identified both the accused persons, namely, Roshan and Har Kishan, as the persons who had committed rape upon her in her room. There appears to be no plausible reason for the victim to falsely implicate the accused persons. The prompt lodging of the FIR and recording of her statement on the very same day of the incident lend assurance to the credibility of her version.

The victim died eleven days after the incident as a result of the injuries sustained by her. Her statement, having been recorded on the very same day of the incident and her subsequent death being attributable to the injuries sustained in the occurrence, assumes considerable evidentiary significance. The said statement may, therefore, be considered in the nature of a dying declaration, subject to the requirements of law governing the admissibility and evidentiary value of such a statement.

In her statement recorded under Section 161 Cr.P.C., the victim specifically attributed the role of committing the offence to Roshan and Har Kishan. Her version regarding the occurrence finds further corroboration from the testimony of her father-in-law as well as her husband. The prosecution case is also supported by the medical evidence, particularly the injury report of the victim, which was prepared on the very same day of the incident.

The subsequent death of the victim is further corroborated by the postmortem report, which records that she died of septicemia resulting from injuries to her external and internal genital organs. Thus, the statement of the victim, the prompt lodging of the FIR, the testimony of the material witnesses, and the medical evidence on record lend substantial corroboration to the prosecution case against Roshan and Har Kishan.

The statement of PW-3 Mahendra Singh has been recorded and verified as Exhibit Ka-1 (written complaint) as well as the check FIR and General Diary (G.D.) entry as Exhibits Ka-1, Ka-2, and Ka-3. Despite being granted an opportunity for cross-examination, the accused chose not to cross-examine this witness; hence, the cross-examination is recorded as "Nil." Consequently, the truthfulness and authenticity of these documents are fully acceptable.

PW-4 Radheysham also verified the written complaint (Exhibit Ka-1) and Exhibit Ka-4. He, too, was not cross-examined by the accused despite an opportunity being granted. As such, his statement is completely acceptable.

PW-5 Kashiram Pundeer stated that he prepared the inquest report, the photograph of the dead body, the challan (dispatch note) of the dead body, and the letter addressed for the postmortem examination. All these documents were prepared in his handwriting and bore his signatures. Marked as Exhibits Ka-6 to Ka-9, these documents remain unchallenged as the accused declined to cross-examine PW-5 despite an opportunity to do so. Hence, these documents are fully admissible.

PW-6 Hari Singh stated that Shaunath was his maternal uncle and that the victim was Shaunath's wife. He further stated that he had submitted a written report at Police Outpost Ghanoura, Police Station Bachhraun, regarding the victim's death. According to him, about two years and eight months had elapsed since the submission of the report. He identified the written report (Exhibit Ka-1) as being in his handwriting and bearing his signatures.

PW-6 further stated that about eleven days prior to her death, an incident occurred wherein the assailants forcibly entered the victim's house and subjected her to rape. According to him, the incident was attributed to Roshan and others. Following the incident, swelling developed in the victim's legs and other parts of her body, ultimately leading to her death. During the intervening period, she was given indigenous treatment in the village because she was pregnant. He stated that the victim died at approximately 3:30 p.m., and information regarding her death was reported at about 4:30 p.m.

In his cross-examination, PW-6 stated that he resided within the jurisdiction of Police Station Gajraula, about 12 to 13 kilometers from the village where the occurrence took place. He arrived in Rasulpur on the morning of October 16, 1980, at around 8:00 a.m., where he found the children and the victim at the house. His maternal uncle, maternal grandfather, and maternal grandmother were attending to the situation, while his maternal grandfather had gone to the police station. PW-6 stated that he returned from Rasulpur that same evening. At the time, he was serving in the Police/PAC as a Naik, a service he had held for about 13 years. He initially stated that he had received information about the occurrence in the market the previous day; however, he subsequently stated that he had not received prior information and only learned of the incident upon reaching Rasulpur. He stated that he went to Rasulpur owing to his familial relationship.

PW-6 further stated that Natthu, a resident of his village, was his grandfather, and Natthu's father was named Baldev. Natthu was the son of the informant Bhagwan's samdhi (in-law). He stated that Bhagwan had sold his entire land holding of about 18 bighas to Natthu because it could not be sold in smaller portions. PW-6 stated that he knew Samarpal of Rasulpur, but was unaware of whether Samarpal was a witness in the case. He noted that the victim had developed swelling and that her family members had arranged for her treatment. He added that Samarpal accompanied him when lodging the report regarding the victim's death. After his statement was read over to him, PW-6 verified and affirmed its contents.

PW-7, Netrapal Singh, stated that he delivered the victim's body for postmortem examination. His statement remains undisputed as the accused did not cross-examine him despite being given the opportunity.

PW-8 Dr Smt S. Singh stated that on October 16, 1980, she was posted as a Medical Officer at Ghanoura. On that day, at approximately 1:30 p.m., she medically examined the victim, whose identity had been duly established before her. She noted that the victim was about 22 years of age and had a mole near her left eye.

PW-8 further stated that the victim was a married woman of average height and was approximately 22 weeks pregnant at the time of examination. No external injuries or visible marks of injury were found on her body. PW-8 observed that the victim was accustomed to sexual intercourse. Stains resembling semen were found on her petticoat, which was subsequently sealed. Posterior vaginal swab and slide examinations tested positive for spermatozoa, and the relevant washings were examined accordingly. In her opinion, sexual intercourse had taken place; however, she could not provide a definite timeline as to when it occurred. She confirmed that she prepared and signed the medical examination report in her own handwriting, which was marked as Exhibit Ka-10.

PW-8 further stated that it was possible sexual intercourse had taken place at around 2:00 a.m. on October 16, 1980. Upon inspecting the petticoat, she identified it as the item sealed during the medical examination, marked as Exhibit-1.

In cross-examination, PW-8 stated that spermatozoa can remain active for up to two days; therefore, given the findings, sexual intercourse could have occurred within that timeframe. She ruled out the possibility of sexual intercourse having taken place three or four days prior to the examination. After her statement was read over to her, she verified and affirmed it.

PW-9 Suresh Chand stated that on October 16, 1980, he was posted at Police Outpost Ghanoura. On that day, the informant, Bhagwan Das, arrived at the police station and submitted a written report. Based on this, Head Constable/Moharrir Mahendra Singh prepared the check FIR and made the corresponding General Diary entry. PW-9 confirmed that his signatures appear on the check FIR. Thereafter, PW-9 took over the investigation. He proceeded to the hospital to record the statements of the informant and the victim. He then visited the place of occurrence, inspected the site, and prepared the site plan in his handwriting, which he signed and marked as Exhibit Ka-11.

PW-9 further stated that he recovered an oil lamp (dibia) from the scene and prepared a recovery memo before placing the lamp in custody. The recovery memo was written and signed by him, read over to the witnesses, and marked as Exhibit Ka-12. He subsequently recorded the statements of Shaunath and other witnesses. On October 27, 1980, the victim succumbed to her injuries, whereupon the case was converted into one under Section 304 of the IPC. The inquest proceedings were conducted by Shri K.S. Pundir.

PW-9 stated that after the accused were apprehended and presented before the Court, their statements were recorded on December 31, 1980. Upon completing the investigation, he submitted the charge-sheet (Exhibit Ka-13), written and signed in his handwriting. Because the victim had died, he produced a true copy of her statement recorded under Section 161 of the Cr.P.C., which he had prepared and signed; it was marked as Exhibit Ka-14. As the victim was unable to testify in court due to her death, her statement holds evidentiary value as a dying declaration under Section 32 of the Evidence Act. In cases of sexual assault, the victim's statement carries significant evidentiary weight, surpassing even that of a standard injured witness.

In cross-examination, PW-9 stated that witness Hari Singh could not be located despite several attempts; hence, his statement could not be recorded. Similarly, the statement of witness Devraj could not be recorded as he was also untraceable.

PW-10 Dr. S.C Gupta stated that he conducted the postmortem examination of the victim/deceased. He has further stated that the body was moderately built and nourished. Post-mortem rigidity was present in the lower limbs and had passed off from the upper limbs. On external examination, old, fully healed multiple lacerated marks were present over both vulvae. Mucous discharge was present. On internal examination, both lungs were congested. The uterus, on opening, showed a wide area of old haemorrhagic changes with infection and foci of inflammation. The internal surface of the uterus was also congested. The foetus was approximately six months old, measuring about 35 cm in length. It was a female foetus, fully formed, with hair present. The foetus was in a stage of putrefaction. In my opinion, the cause of death was septicemia and toxemia due to injuries/infection of the internal and external genital organs.

PW-10 described the general physical appearance and external/internal findings of the body, noting that the lungs and internal organs were examined and detailed in the postmortem report. The report was prepared and signed in his handwriting and marked as Exhibit Ka-15.

In his cross-examination, PW-10 stated that old, multiple, ruptured lacerations would not ordinarily be caused by male genitalia alone. He further stated that he could not give any definite medical opinion as to whether the particular injuries had been sustained during a struggle. He also acknowledged that septic conditions could potentially arise as a consequence of an attempted abortion.

However, the aforesaid aspects of the cross-examination do not materially discredit the medical evidence. On the contrary, PW-10 specifically opined that the cause of death was septicemia and toxemia resulting from injuries to the internal and external genitalia. This medical opinion provides substantial corroboration to the prosecution case and lends assurance to the testimony of the prosecution witnesses regarding the nature and consequences of the injuries sustained by the victim.

More importantly, the medical evidence has to be considered in conjunction with the statement of the victim herself, recorded on the very day of the incident and subsequently proved by the Investigating Officer as Exhibit Ka-14. The Investigating Officer categorically verified that the statement had been recorded by him. The victim, being the injured person and the person directly affected by the occurrence, was in a position to speak about the incident from her own personal knowledge.

The subsequent death of the victim, approximately eleven days after the occurrence, assumes particular significance. Her inability to appear before the Court and give evidence was occasioned by her death. Therefore, her statement cannot be discarded merely because she could not be examined in Court. Its evidentiary value has to be examined in light of the applicable provisions of the Evidence Act, particularly the principles governing statements made by a person who subsequently dies. When considered along with the medical evidence and the testimony of the prosecution witnesses, Exhibit Ka-14 provides material corroboration to the prosecution version.

Thus, the medical evidence furnished by PW-10, particularly his opinion regarding septicemia and toxemia resulting from injuries to the internal and external genitalia, materially supports the prosecution case. The minor limitations expressed by the doctor during cross-examination do not, by themselves, negate the core medical finding or render the prosecution version inherently improbable. Rather, the medical evidence, the testimony of the prosecution witnesses, and the statement of the victim recorded during her lifetime are required to be considered cumulatively while assessing the truthfulness and reliability of the prosecution case.

It is held by the Supreme Court in Mohd. Imran Khan v. State (Govt. of NCT of Delhi), (2011) 10 SCC 192 in paragraph 22 that it is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The victim stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act, 1872 (hereinafter called "the Evidence Act"), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the victim, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the victim it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the victim does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

In paragraph 23 it has been held that the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the victim must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide State of Maharashtra v. Chandraprakash Kewalchand Jain 7 (1990) 1 SCC 550;, State of U.P. v. Pappu (2005) 3 SCC 594 and Vijay State v. State of Madhyapradesh (2010) 8 SCC 191. Thus, the law that emerges on the issue is to the effect that statement of victim, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the victim. There is no reason to disbelieve the victim, as no self-respecting girl would level a false charge of rape against anyone by staking her own honour.

It has been held by the Supreme Court in Iqbal Mousa Patel v. State of Gujarat, 2011 (2) ACR 1897 (SC), that although a criminal case must be proved beyond reasonable doubt, this does not mean that the degree of proof must be beyond a shadow of doubt. It has been held by this Court in Ramesh Chandra v. State of U.P., 2009 (66) ACC 486 (All.), that the age of technical justice is over. It has been held by the Hon'ble Supreme Court in Avtar Singh v. State of Haryana, AIR 2013 SC 286, that where there are several eyewitnesses, it is not necessary for the prosecution to examine all of them. It has been held by the Hon'ble Supreme Court in Surendra Kumar v. State of Punjab, 2012 (12) SCC 120, that there is no prescribed form for recording a dying declaration, and the presence or examination of an Executive or Judicial Magistrate is not obligatory. In the said case, the dying declaration was recorded in the presence of an ASI and two doctors. Although the deceased had suffered 90% burns, she retained the capacity to make a detailed dying declaration, sign it, and affix her thumb impression thereto. The dying declaration was found to be voluntary and truthful, and the conviction of the appellant-husband based thereon was affirmed.

It has been held by the Supreme Court in Sri Bhagwan v. State of U.P., (2013) 12 SCC 137, in paragraph 24, that as far as the implication of Section 162(2) Cr.P.C.is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161 Cr.P.C. assumes the character of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32 (1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 Cr.P.C. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.

It has been held by the Supreme Court in Ravi Vs. State of Tamil Nadu (2006) 9 SCC 240 that once the court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on dying declaration without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely the rule of prudence.

In the present case, the FIR was lodged promptly on the date of the incident itself, i.e., on 16.10.1980. The names of both the accused were specifically mentioned therein and were identified by the victim from the very inception. The surviving appellant, Har Kishan, is one of the accused so named. The allegation against the appellant finds specific mention in the written complaint (Ex. Ka-1) as well as in the check FIR.

The victim had sustained injuries and subsequently succumbed to septicemia and toxemia resulting from injuries to her internal and external genital organs, as is evident from the postmortem report. Her statement under Section 161 Cr.P.C. was recorded by the Investigating Officer on the very day of the incident, i.e., 16.10.1980, wherein she specifically attributed the allegations to both the accused. The statement was duly proved by the Investigating Officer as Ex. Ka-14, and its true copy was placed on record before the trial court at the time of his examination as P.W.-9.

Having regard to the fact that the victim succumbed to her injuries within 11 days of the incident, there appears to be no reasonable possibility of manipulation, interpolation, or tutoring in the statement attributed to her. Her version, as disclosed in the written complaint and the statement recorded under Section 161 Cr.P.C., has remained consistent on material particulars from the very inception

Upon a careful and anxious consideration of the entire evidence on record, this Court finds that the prosecution case is coherent and consistent and receives due corroboration from the oral as well as documentary evidence. The statement of the victim, being that of an injured witness and having regard to the subsequent death of the victim, assumes considerable evidentiary significance in the facts of the present case. Her version is further corroborated by the medical and other evidence available on record. Nothing material has been brought on record so as to discredit her statement or create any reasonable doubt regarding its veracity.

The prompt lodging of the FIR, the specific naming of the accused, the statement of the victim recorded at the earliest point of time, the medical evidence, and the other material available on record, when considered cumulatively, leave no room for doubt regarding the prosecution version. The possibility of false implication of the appellant is wholly ruled out.

Consequently, upon re-appraisal of the evidence and having carefully considered the judgment and order passed by the learned trial court, this Court finds no perversity, illegality, or infirmity warranting interference in the impugned judgment and order dated 03.02.1984. The findings recorded by the learned trial court are based upon a proper appreciation of the evidence on record and call for no interference.

Accordingly, the judgment and order dated 06.02.1984, passed by the learned III Additional Sessions Judge, Moradabad, in Sessions Trial No. 605 of 1981, is hereby affirmed. Appellant No. 1, Roshan, having died during the pendency of the present appeal, the appeal insofar as it relates to him has already abated.

So far as the surviving appellant, Har Kishan, is concerned, the criminal appeal preferred by him is hereby dismissed. As the appellant is on bail, he is directed to surrender before the learned trial court within fifteen days from today. His bail bonds shall be cancelled, and the sureties shall be discharged upon his surrender before the learned trial court.

The learned trial court shall complete the necessary formalities. The appellant shall undergo the remaining sentence awarded by the learned trial court. The period of incarceration already undergone by him, if any, shall be adjusted against the sentence in accordance with law.