JUDGMENT :

(Umesh Chandra Sharma, J.)

1. We have heard learned counsel for the appellants, learned A.G.A for the State and perused the material available on record.

2. Criminal Appeal No. 4875 of 2014, Criminal Appeal No. 4713 and Criminal Appeal No. 1844 of 2015 have been filed by the appellants therein challenging a common judgment and order passed by Additional Sessions Judge, Court No. 2, Ballia in S.T No. 217 of 2011, arising out of Case Crime No. 53 of 2011, under Sections 376 (2) (g), 307 and 302 I.P.C, Police Station - Sukhpura, District - Ballia, convicting them under Section 376 (2) (g) I.P.C and sentencing for rigorous imprisonment for life and fine of Rs.50,000/- on each of them with default stipulation.

3. The brief facts of the case are as under :-

On a written complaint (Ex. Ka-1) of Nazim Ansari (PW-1), F.I.R (Ex. Ka-23) of Case Crime No. 35 of 2011 was registered under Section 376 I.P.C, at Police Station - Sukhpura, District - Ballia on 08.04.2011 at 12:15 hours by Constable Clerk (PW-10) against Israr @ Mintu, Pintu Yadav and Anoop Yadav. It has been stated in the F.I.R that Zareena Khatoon, daughter of the informant, aged about 17 years, was alone in the house at the time and date of occurrence when Mintu son of Saleem Ansari, Pintu son of Suraj Yadav and Anoop son of Laxmi Yadav, resident of Sukhpura, Police Station - Sukhpura, District - Ballia, resident of the same village came there and enquired about the mother of the girl. On having information that mother of the girl was away from the house, they got the door opened and sat inside the house to wait for her mother’s arrival. Pintu and Anoop bolted the door from inside while Mintu @ Israr bolted from the outside. Thereafter Pintu and Anoop by pressing her face by a pillow committed rape upon her. On alarm being raised they fled from there. When the informant came to his house, the girl narrated the whole incident and when he went out of the house in search of the accused persons he saw that his daughter had immolated herself due to which her whole body was burnt. Immediately, the girl was rushed to the District Hospital, Ballia, where her treatment was going on and he came to give written complaint of the incident to the Police Station about the incident occurred at about 7:00 pm. On 07.04.2011 the incident was witnessed by the villagers, who saw the appellants coming out of the house of the informant hurriedly. On 08.04.2011 at about 12:05 dying declaration was recorded by the Nayab Tehsildar, Sadar Ballia, after examination by the Medical Officer, District Hospital Ballia, who certified that she was mentally fit to give statement.

4. In her dying declaration, she narrated the whole story regarding the rape and also added that she was burnt by the accused persons, though, it is not in conformity with the contents of F.I.R and deposition of informant P.W-1. The lower court has not accepted part of the dying declaration that after rape she was set ablaze by the accused persons. After recording the dying declaration she died at 11:25 p.m on 18.04.2011. She was hundred percent burnt.

5. P.W 5. Dr. Manju Singh, District Women Hospital, Varanasi, the then Doctor at District Woman Hospital, Ballia, upon medical examination, found swelling on her private part due to burn, there was swelling upon the whole body due to burnt, but there was no sign of injury on her private parts. Her hymen was old torn and it was easily taking one finger entrance. After x-ray, she was found above 18 years old; in her vaginal smear examination male sperm was found.

6. P.W. 6. Dr. V.K. Gupta, Medical Officer, District Hospital, Ballia, did autops