The court established that inconsistencies in dying declarations and lack of corroborative evidence undermine the prosecution's case, necessitating acquittal.

JUDGMENT :

Anoop Kumar Dhand, J.

1. Having regard to the sensitivity of the allegations levelled in the matter and the nature of the offence complained of, it is imperative to protect the identity of the prosecutrix. Therefore, she has been denoted as “K” in the incident.

2. Convicted of the offences punishable under Sections 376 and 306 of the Indian Penal Code (IPC), vide judgment dated 25.09.1991 passed by the Sessions Judge, Bharatpur, in Sessions Case No.88/1990, the appellants have preferred this appeal.

3. Vide impugned judgment dated 25.09.1991, the appellants have been directed to undergo rigorous imprisonment (for short ‘R.I.’) for a period of 10 years for the offence punishable under Section 376 IPC with a fine of Rs.500/- each, and in default, to further undergo six months additional R.I. They have been also sentenced to undergo 5 years RI for the offence punishable under Section 306 IPC with a fine of Rs.500/- each and in default, to further undergo six months additional R.I.

4. Process of law was set in motion on receipt of First Information Report (for short ‘FIR’) Ex.P5 at Police Station Kumher, District Bharatpur on 12.09.1989 wherein it was alleged by the complainant PW-4 Aasam that in the intervening night of 8th September and 9th September, 1989, when his daughter “K” (aged 13 years) and son Deshraj (aged 10 years) were sleeping at home, then Man Singh and Mohan Singh came and covered the mouth of his daughter and committed rape on her, while she was unconscious. Thereafter “K” poured kerosene oil on her body and lit fire. His son raised hue and cry, whereupon the neighbours arrived on the spot to rescue her. He was working at Delhi with his wife and two sons. After getting information of this incident he came to village around 7.00 pm on 10.09.1989 and “K” narrated to him the whole incident and on 11.09.1989 she was admitted in the Hospital. Mohan Singh was caught by the villagers where he admitted that he had committed the incident.

5. Upon this report Crime No.244/1989 (Ex.P6) was registered for the offence under Section 376 IPC. During the course of investigation, the victim “K” died on 08.10.1989, hence the offence under Section 306 IPC was added. After usual investigation, the appellants were chargesheeted for the offence under Section 376 and 306 IPC.

6. The learned trial Court framed charges against the appellants for the aforesaid offences and upon denial of charge/guilt by them, trial commenced. During the course of trial as many as 11 witnesses were examined and 22 documents were exhibited by the prosecution. Thereafter, an explanation was sought from the accused appellants under Section 313 Cr.P.C. in which they denied the prosecution allegation and claimed to be innocent. Thereafter, statements of three witnesses were recorded in defence and three documents were exhibited by the appellants. Then, after hearing the learned Public Prosecutor as well as learned defence counsel and upon meticulous appreciation of the evidence, the learned Judge convicted and sentenced the appellants in the manner stated above vide judgment dated 25.09.1991, which is under challenge before this Court in the instant appeal.

7. Learned counsel for the appellants conjointly submitted that the date of alleged incident is the intervening night of 8/9.09.1989 while the FIR was lodged after a delay of more than four days. Counsel submits that the alleged incident of rape as well as burning by fire has occurred on the fateful day i.e. in the intervening night of 8/9.09.1989 and the injured “K” was medically examined by the Doctor on 12.09.1989 wherein the duration of burn injuries was found to be within 48 hours. Counsel submits that with no stretch of imagination it can be proved that the incident has occurred in the intervening night of 8/9.09.1989. Counsel further submits that there is no evidence of sexual assault as the in