JUDGMENT M.C. Jain, J.
1. The appellant is one Rafat Mian, who has preferred this appeal against the judgment and order dated 31-5-85 passed by Sri B. N. Srivastava, the then Sessions Judge, Bareilly in Sessions Trial No. 447 of 1984 whereby he has been convicted under Sections 376/511, I.P.C. and under Section 302, I.P.C. He has been sentenced to rigorous imprisonment for three years under Sections 376/511, I.P.C. and imprisonment for life under Section 302, I.P.C. Both the sentences have been order to run concurrently.
2. The prosecution case as emerging from the First Information Report and the evidence on record may briefly be stated. The victim was Km. Babbo, aged about 17 years, daughter of Smt. Kishmari (a muslim widow). Her two daughters had been married and she was residing with the victim along with her younger daughter Suriya PW 1 and two sons-Gulam Sabir PW 2 and Gulam Quadir, who were self-employed on some minor jobs. The deceased with her family members was residing under guardianship of her mother in one of the five apartments of a big house around a courtyard having a hand-pump in Kanghi Tola P.S. Quilla, District Bareilly. Out of other four apartments, one was occupied by the accused-appellant who had been married about four months before the incident. He was residing with his wife and other family members in such another apartment. Out of remaining three apartments one was in the occupation of Shaffan PW 3. The incident occurred on 4-6-1984 at 10 A.M. Gulam Sabir PW 2 and Gulam Qadir, brothers of the victim, had left for their respective jobs for the day while their mother Smt. Kishmari had gone to her married daughter with the result the victim Km. Babbo and her younger sister Km. Suriya were only present in their apartment. On being asked by her, Km. Suriya PW 1 left for vegetable market at Quilla, situate at a short distance from her house to purchase vegetables. The victim was thus left all alone at the time of the incident and she wanted to take her bath. The accused-appellant approached the victim in her apartment when she was going to take bath and tried to make lascivious advances towards her and to violate her person. She declined to fall prey to his lust and prevented him. He then sprinkled kerosene over her and after setting her on fire ran away. He was seen coming out from her apartment and fleeing away with tension writ large on his face by Suriya PW 1 and Shaffan PW 3 as also by one Swaib. On being asked by Shaffan PW 3 and Swaib as to what was the matter, the accused did not give any reply and escaped.
3. All the three, namely, Suriya PW 1, Shaffan PW 3 and Swaib rushed to the door of her house where they found the deceased Km. Babbo crying out for help. On entering inside the house, they noticed that she was lying near the door-frame of the kitchen of her apartment and she told them that she had been set on fire by accused Rafat, who thereafter ran away. She was immediately taken by Shaffan PW 3 and Swaib to the District Hospital, Bareilly where she was admitted at 12.20 P.M. the same day i.e. on 4-6-84. She was attended to by Dr. S.K. Saxena P.W. 5. Her injuries were recorded as under :
Burn first and second degrees, covering face, neck, chest, abdomen, back, head. Hairs singed.
4. According to the opinion of the Doctor, the injuries could be sustained by burning at about 10.30 A.M. At the time of her medical examination by him, she was unconscious and was admitted in District Hospital.
5. After admitting the victim in the hospital, Shaffan PW 3 went to inform Gulab Sabir PW 2 at the place of his work who then came to District hospital and was narrated the incident by her sister, the victim. He then got scribed report by one Sarnmo which was lodged at the police station at 9.30 P.M.A case under Sections 376/307, I.PC was registered. Her dying declaration in the form of statement under Section 161, Cr.P.C. was recorded by the I.O. Badan Singh S. I. PW 9 and also by the City Magistrate, Bareilly Sri Raj Kumar Singh in between the night of 4/ 5-6-84 at 2.30 A.M. She ultimately died of burn injury on 15-6-84 and the case was converted under Section 302, I.P.C.
6. The post-mortem over the dead body was conducted by P.W. 4 Dr. S.P. Goel PW 6 on 15-6-84 at 5 P.M. The following ante-mortem injuries were found on her person :
Superficial deep burn over whole of face, neck front of chest, upper part of abdomen, left umbilicus' extending up to back of neck, back of chest and front of her both upper limbs.
The cause of death was shock and haemorrhage on account of burning.
7. After conclusion of investigation, a chargesheet was laid against the accused-appellant whereafter he was put on trial. The prosecution examined nine witnesses in all out of whom H.C. Deshraj Singh PW 8 and I.O. Badan Singh S.I. PW 9 were the formal witnesses. Dr. S. K. Saxena PW 5 had admitted the deceased and had examined her medically in the District Hospital on 4-6-84 at 12.20 P.M. Dr. S. P. Goel PW 6 had conducted autopsy over her dead body. Dr. D. S. Gangwar PW 7 had recorded his certificate at 2.30 A.M. on 4/5-6-84 about the victim to be mentally fit to giver her statement Sri Raj Kumar Singh PW 4 was the City Magistrate, Bareilly at the relevant time who had recorded dying declaration Ext. Ka 2 of the deceased after Dr. D. S. Gangwar PW 7 had certified her to be mentally fit to give her statement. Gulam Sabir PW 2 is the brother of the deceased and the informant. The remaining two witnesses are Suriya PW 1, younger sister of the deceased and Shaffan PW 3, about whose testimony reference has been made above in the earlier part of the judgment.
8. The defence of the accused was that Km. Baboo wanted to marry with him for which his parents did not agree and got him married with another girl a few months back. On this score, she had come in for deep shock and disappointment. He seemed to suggest that she committed suicide by burning.
9. The learned Sessions Judge believed the prosecution case and the evidence including dying declaration of the deceased. On finding the case proved against the accused to the hilt, he convicted and sentenced him as stated earlier.
10. We have heard Sri Satish Trivedi, learned counsel for the accused-appellant and learned A.G.A. on behalf of the State in opposition of the appeal. We have also care-fully gone through the evidence on record. Indeed, the case of the prosecution was virtually based on dying declaration of the deceased. The learned counsel for the accused-appellant has levelled criticism against the dying declaration of the deceased and has painstakingly argued that she was unconscious at the time of her admission in hospital on 4-6-84 and continued to be so till she died. It has been urged that she was not at all in a position to make a dying declaration and the same is a piece of fictitious evidence. On the other hand, the argument of the learned A.G.A. is that the dying declaration of the deceased has rightly been relied upon by the Court below which had been recorded by Sri Raj Kumar Singh PW 4, City Magistrate, Bareilly after having been satisfied about the fit mental condition of the victim to make the statement and on this factum having been certified by Dr. D.S. Gangwar PW 7 also. We have carefully weighed the respective arguments from the two sides and on testing the evidence on the anvil of strictest scrutiny, we are of the firm opinion that the dying declaration of the deceased has rightly been relied upon by the Court below. The dying declaration of the deceased cannot be flawed even on applying microscopic standard. It is significant to point out that the victim had not received any head injury, brain haemorrhage or any such injury of like nature. She survived after the incident which took place on 4-6-84 up to 15-6-84. True, as per BHT Ext. 2 she was unconscious at the time of her initial medical examination and admission in the hospital on 4-6-84 at 12.20 P.M. as stated by P.W. 4 Dr. S. K. Saxena PW 5 and mentioned in BHT (Ext. 2) also. Obviously, her unconsciousness was attributable to shock resulting from burning. There is no warrant for this presumption that unconsciousness of the deceased produced as a result of burning would have continued till her death on 15-6-84. It is further to be noted that Sri Raj Kumar Singh PW 4, City Magistrate, Bareilly who recorded her dying declaration and Dr. D. S. Gangwar PW 7 who certified her to be mentally fit to make the statement cannot at all be termed as partisan witness. It cannot be accepted that these two officers would go out of their way in aiding the production of a fictitious dying declaration of the deceased. The contention of the learned counsel for the accused-appellant is that Dr. D.S. Gangwar PW 7 was not treating the victim. Rather she was being treated by Dr. A. P. Singh and Dr. H. C. Sharma whose endorsements are there on BHT. To our mind it cannot be a ground to discard the testimony of Dr. D.S. Gangwar PW 7. It is pertinent to state that the dying declaration of the deceased had been recorded by Sri Raj Kumar Singh PW 4 in the night of 4/ 5-6-84 at 2.30 A.M. Dr. D. S. Gangwar PW 7 being on duty at that time in the hospital could be the only right person to certify the mental condition of the deceased at that time. It has been urged that on the BHT, while recording his endorsement (fit for DD) he also recorded her general condition to be poor. It should be pointed out that her poor general condition does not and cannot lead to the inference that she was unconscious and was not in a fit mental condition to make a dying declaration.
11. It is further, to be observed that her statement had also been recorded by S.I. Badan Singh PW 9 at 11 p.m. on 4-6-84 in the hospital which is Ext. Ka-8. He had found her conscious at that time. What appears to be the truth is that after the incident, she lost consciousness subsequent to narration of the incident to her sister Suriya PW 1 and Shaffan PW 3. Her physical agony must have been at the climax at the time of her admission in hospital and she was unconscious when admitted in the hospital the same day at 12.20 p.m. She, however, gained consciousness in the night when the Investigating Officer reached there at about 11 p.m. to whom she made a statement in conscious state. It could only be thereafter that the Magistrate could be called for recording her dying declaration authentically. It thus stands satisfactorily explained as to how her dying declaration was recorded by Sri Raj Kumar Singh PW 4 at 2.30 p.m. the same night. The challenge to the dying declaration by the learned counsel for the accused-appellant is unfounded.
12. It is established to the hilt by her dying declaration Ext. Ka-2 recorded by Sri Raj Kumar Singh PW 4 in between the night 4/5-6-84 at 2.30 a.m. that it was the accused-appellant who had attempted to commit rape on her, finding her all alone in her apartment on the fateful day and time when she was about to take her bath. On a resistance by her, he doused her with kerosene and set her on flame cutting short her life in the prime of her youth. It is well explained as to how he entered in her apartment. It has come in her statement that there was no door in her apartment. It appears that she belonged to lower status of the society, so much so that the apartment of the family did not even have a proper door. The dying declaration Ext. Ka-2 gets corroboration from her statement recorded by the Investigating Officer the same night at 11 p.m. and also by res gestae evidence of her sister Smt. Suriya PW 1 and Shaffan PW 3 to whom she had stated immediately after the occurrence that she had been set to fire by the accused-appellant, it may be stated at the risk of repetition that it was Shaffan PW 3 who had admitted her in the hospital. She had disclosed the details of the incident to her brother Gulam Sabir PW 2 also that the accused-appellant burnt her on her refusal and resistance to fall prey to his sexual design when she was going to take bath in her house. This was after her such disclosure to him in the hospital that Gulam Sabir PW 2 had lodged the F.I.R. It is perfectly believable that she had become conscious after being admitted to the hospital. Of course, she continued to struggle between life and death till she ultimately died on 15-6-84. There must have been spells of consciousness and unconsciousness during this interregnum, but the argument cannot be accepted that she continued to be unconscious right after the incident till her death.
13. It may also not be out of place to mention that during investigation the Investigating Officer recovered the bottle and burnt hairs and clothes from scene of occurrence. Thus physical evidence establishes the place of occurrence.
14. The defence has rightly been discarded by the Court below. As per the own statement of the accused, he had been married a few months before the incident to another lady, There is nothing to presume or indicate that he and the deceased were having some love affair. If the deceased wanted to marry with him, then her frustration would have been at the climax when he was married with another lady. With the passage of time she would have regained her composure and there could hardly be any question of her committing suicide by burning after several months of the marriage of the accused. We have not the slightest doubt that the defence theory coined by the accused-appellant in his statement under Section 313, Cr. P. C. was completely false which had been concocted by him to come out of the difficult situation in which he had landed himself by this heinous criminal act.
15. We are in judgment that the guilt of the accused-appellant is proved to the hilt that he attempted to commit rape on the deceased, who was a girl of about 17 years of age. When she declined and resisted to fall prey to this lascivious designs and he failed to satisfy his sexual lust with her immorally, he turned into a wolf in human shape, doused her with kerosene and burnt her. The offence committed by him is most heinous and despicable. By order dated 20-6-1987 this Court issued a notice to him for enhancement of sentence awarded by the trial Court, having given our thoughtful consideration to this aspect of the matter and the age of appellant who was about 24-25 years at the time of his conviction, we. feel that then ends of justice would be met by maintaining the sentence against the appellant as awarded by the learned Sessions Judge.
16. In view of the discussion made hereinabove, we cannot locate any merit in this appeal and the same is liable to be dis-missed. We accordingly dismiss the appeal and maintain the conviction and sentence passed against the accused-appellant Rafat Mian under Sections 376/511, I.P.C. and Section 302, I.P.C. He shall undergo three years' rigorous imprisonment under Section 376/511, I.P.C. and life imprisonment under Section 302, I.P.C., both the sentences running concurrently. He is on bail. He shall surrender forthwith to serve out the sentence passed against him.