( 1 ) THE present appeal has been preferred by the appellants-accused against the judgement and order of conviction and sentence dated 12th December,1995 passed by learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad in Sessions Case No. 97 of 1992, whereby the appellants have been convicted and sentenced to undergo life imprisonment for an offence punishable under Section 376 of the Indian Penal Code and ordered to pay fine of Rs. 10,000/-, each, in case of default, further simple imprisonment for 2 years. The appellants have also been convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and each accused to pay fine of Rs. 10,000/-, in case of default, ordered to undergo further simple imprisonment for 2 years. All sentences have been ordered to run concurrently. Against this order of conviction and sentence, the present appeal has been preferred.

( 2 ) LEARNED counsel for the appellants submitted that appellant No. 2 (accused No. 2) has expired on 22nd September,2007 and, hence, this appeal is abated against him.

( 3 ) BRIEF facts of the present case are as under: it is a case of the prosecution that on 4th October,1991 at about 8. 00 a. m. , appellants-accused had committed rape on the deceased and, thereafter, she was ablazed by them. The deceased Madinaben Abdulbhai Pathan was maid-servant. Offence of rape had taken place at the house of the appellants, whereas, she was ablazed at 10 feets away from the house of the appellants. Upon hearing screams, neighbour rushed. Father of the appellants namely Chandrakantbhai put a quilt upon her and, thereafter, she was taken at Mahatma Gandhi Hospital at Viramgam and, thereafter, she was referred to Civil Hospital at Ahmedabad, where, she was examined by P. W. No. 8 - Dr. Virambhai Gamarbhai Chaudhari as well as by P. W. No. 11 Dr. Manoranjanaben Bharatbhai Shah. The deceased herself has given complaint at Exh-60 on 4th October,1991, and, thereafter, an offence bearing C. R. No. I-137 of 1991 was registered at Viramgam Town Police Station. Thereafter, police yadi was sent to Mamlatdar for recording dying declaration. P. W. No. 1 Rasikbhai Maganbhai Bhabor recorded dying declaration of Madinaben Abdulbhai Pathan (Exh-12) on 4th October,1991 at 8:45 a. m. This is a second dying declaration, after FIR. Thereafter, Doctor of Viramgam Hospital, referred case of the deceased at Civil Hospital, Ahmedabad, where, the Doctor had recorded case history, which is at Exh-36. Necessary panchnama of scene of offence was also reduced in writing during the course of investigation. P. W. No. 11 Dr. Manoranjanaben Shah examined the deceased. The deceased expired on 9th October,1991 at 6:55 a. m. at Civil Hospital at Ahmedabad. Thereafter, upon completion of investigation, charge-sheet was filed and Sessions Case No. 97 of 1992 was registered against the appellants and upon recording evidence, they have been convicted for life imprisonment and, thereafter, the present appeal has been preferred by the appellants. Out of which, the present appeal has been abated for appellant No. 2 because of death of appellant No. 2 (accused No. 2), who has expired on 4th September,2007 i. e. during the pendency of this Criminal Appeal and, therefore, the present appeal survives only for appellant No. 1 (accused No. 1 ).

( 4 ) WE have heard learned counsel Mr. Panchal for the appellant No. 1, who has mainly submitted that there are more than one dying declarations. First dying declaration is FIR at Exh-60. Second is dying declaration recorded by Deputy Mamlatdar- Rasikbhai Maganbhai Bhabor- P. W. No. 1 at Exh-12 and third dying declaration is a statement made by the deceased narrating her case history before independent witness P. W. No. 8 Dr. Vikrambhai of Civil Hospital, at Ahmedabad. The case papers, in which, the case history is given is at Exh-36. It is also submitted that one more dying declaration has been recorded by