R. S. SODHI, J. ( 1 ) THIS appeal seeks to challenge the judgment and order dated 9. 12. 1996 of the additional Sessions Judge, Delhi in Sessions case No. 110/1996, arising out of F. I. R. No. 389/1994, Police Station Seelampur, whereby the learned judge has held the appellant guilty for an offence punishable under Section 342/34 and 302/34 IPC and vide separate order of the same date has sentenced him to suffer rigorous imprisonment for six months and a fine of Rs. 500/- under section 342/34 IPC, in default further rigorous imprisonment for one month; rigorous imprisonment for life and a fine of rs. 1,000/- under Section 302/34 IPC and in default, further rigorous imprisonment for two months. Both the sentences were directed to run concurrently. ( 2 ) BRIEF facts of the case as noted by the additional Sessions Judge are as follows :- "that on 16. 7. 94, PW-14, SI Jiya Ram was posted as ASI at PP Shastri Park under P. S. Seelampur. He received an information vide D. D. No. 21 regarding the burning of lady near DDA flats Shastri park, true copy of which is Ex. PW-14/ a. He along with Ct. Mohar Singh went to the said spot of incident. There they came to know that the burnt lady had been sent to G. T. B. Hospital. He after leaving behind the said constable at the spot reached at GTB Hospital and collected the MLC Ex. PW-6/a pertaining to the said Bhuri injured. He conveyed the facts of the case on telephone to the SHO from the hospital. He had also contacted the said injured bhuri at the hospital who told him verbally on his query that she had been married before about 6 years back with sohan pal and she had also stated that she was sleeping on the roof of H. No. A-13, Shastri Park and that they both committed rape on her person during the night and that both sprinkled kerosene oil on her person in the morning and set her on fire. After hearing this version made to him he conveyed these facts to the SHO who directed him to inform the SDM. He immediately contacted Shri Amit Yadav the then SDM on telephone and told him the above stated fact and he reached at the hospital. After hearing this version made to him he conveyed these facts to the SHO who directed him to inform the SDM. He immediately contacted Shri Amit Yadav the then SDM on telephone and told him the above stated fact and he reached at the hospital. He met the sdm at the hospital and disclosed him the facts of the case there. He accompanied the SDM at the burn ward of GTB Hospital where Bhuri was admitted in burnt condition and he pointed out Bhuri to SDM. SDM asked him to go out of the ward. Before going away from the ward he had given the MLC Ex. PW-6/a also to the SDM. The SDM recorded the statement of bhuri. Bhuri was talking and was conscious and was capable of making statement as per his observation and satisfaction. SDM recorded her statement which is Ex. PW-7/b and thereafter the SDM gave his endorsement with the direction to register a case under the relevant section of law against Ram Khilari and babloo. He after taking the said statement of Bhuri recorded by SDM which is Ex. PW-7/b, reached at P. S seelampur and he handed it over to the then SHO Sh. Bhagwant Singh Insp. who gave his direction Ex. PA at portion a to a to the duty officer to register the case accordingly and thereupon this case was registered at. S. Seelampur on the said dying declaration of Bhuri. The investigation after registration of the case was handed over to him. During the investigation, he revisited the place of occurrence i. e. A-24, Shastri park, Delhi and inspected the place of incident, prepared rough sketch Ex. W-14/b with correct marginal notes. He had also seized the broken pieces of bangles after sealing the same into a pulanda with the seal of J. R. He had also found one four burnt pieces of match sticks. One pair of ladies chappal was also found at the sot. He had also found one container containing some kerosene oil and he also saw some kerosene oil lying spread at the spot. All these articles were taken into possession vide recovery memo Ex. One pair of ladies chappal was also found at the sot. He had also found one container containing some kerosene oil and he also saw some kerosene oil lying spread at the spot. All these articles were taken into possession vide recovery memo Ex. PW-10/b at the spot and only the broken pieces of bangles and burnt math sticks were seized with the seal of J. R. Subsequently he came to know that Bhuri injured had succumbed to her injuries and an information vide D. D. No. 4, copy of which is Ex. PW-14/c was given to him in this regard. On its receipt he reached at G. T. B. Hospital with Ct. Mohar Singh and found Bhuri dead there. He saw her dead body in the mortuary of the said hospital. Since the SDM had recorded the statement of Bhuri, so he informed him about her death also. But the SDM did not turn in the hospital on 17. 7. 94 and he came there on 18. 7. 94 and he told him the facts of the case again. SDM directed him to conduct the inquest proceedings and thefeupon he conducted the inquest proceedings. Sohan Pal, the husband of the deceased, and Suraj Pal had identified the dead body. They had come there as they were also informed by him. Their statements regarding the identification of dead body are Ex. PW- 3/a and PW-2/a recorded by him respectively. The inquest proceedings containing the brief facts of the case and his request for post mortem and death report on Form 25 is collectively ex. PW-14/d. These were prepared by him at the mortuary and the request for post mortem made to the doctor. He had also collected the death certificate Ex. PW-/b from the hospital. It was also sent to the post mortem doctor along with the inquest papers and the MLC Ex. PW-6/c. The post mortem was conducted on the dead body and thereafter the dead body was handed over to the relations of the deceased. However on 16. 7. 94 the accused, Ram Khilari, present in court, was arrested by him from Shastri park and his personal search was conducted vide memo Ex. PW-6/c. The post mortem was conducted on the dead body and thereafter the dead body was handed over to the relations of the deceased. However on 16. 7. 94 the accused, Ram Khilari, present in court, was arrested by him from Shastri park and his personal search was conducted vide memo Ex. PW-10/a. He was interrogated by him and on his interrogation the accused made a disclosure statement by setting the motive for the offence and sequence of events leading to the commission of offence which is Ex. PW-3/a. The accused was also sent for medical examination and the doctor opined him as potent for sexual intercourse vide mlc Ex. PW-5/a. The duty constable gtb Hospital had also produced before him two sealed pullandas which he seized vide Memo Ex. PW-10/c. He examined the witnesses. During the investigation, he confirmed that the accused, Ram khilari, present in court was residing at a distance of 100 yards from the house of the deceased. The co-accused, babloo, was tried to be arrested by him but he was not traceable despite his best efforts. He correctly recorded the statement of Kalu Ram and Suraj Pal which are Ex. PW-l/b and PW-2/b respectively and nothing was added or omitted therein. He tendered in evidence the report of the CFSL Expert which is Ex. PX. He had deposited the case property on the same day with the MHCM which was seized by him and nobody had tampered with the same till remained in his custody. After concluding the investigation the challan was submitted in the court. He further deposed that he had submitted the cfsl report in the curt on 13. 3. 96. The death summary which he has collected during the investigation is Ex. 2. Babloo could not be arrested and he was declared P. W. During the investigation. ( 3 ) THE prosecution, in order to prove their case, examined 14 witnesses. Of them, PW-1, kalu Ram, PW-2, Suraj Pal, PW-4, Dr. N. K. Aggarwal, PW-11, Amit Yadav and PW-14, s. I. Jiya Ram appear to be the material witnesses. ( 4 ) PW-1, Kalu Ram, has deposed that the deceased was his neighbourhood sister and that about 15 to 16 months ago she had died. He came to know of the death in the morning on hearing the alarm that she had sustained burn injuries. ( 4 ) PW-1, Kalu Ram, has deposed that the deceased was his neighbourhood sister and that about 15 to 16 months ago she had died. He came to know of the death in the morning on hearing the alarm that she had sustained burn injuries. He states that she was taken to the hospital by PCR van. This witness knows the accused persons but denies that the accused was arrested by the police in his presence or that a disclosure statement was made by him in the presence of this witness. The witness was cross-examined by Additional Public Prosecutor as according to him the witness had resided from his previous statement. ( 5 ) PW-2, Suraj Prakash, deposes that Bhuri was her sister and that the accused was his neighbour. This witness identified the dead body of the deceased. His statement, Ex. PW-2/a, was recorded by SDM. This witness was also declared hostile and cross -examined by the Additional Public Prosecutor wherein he admitted his signature on the statement recorded by the SDM which statement, according to him, was true. ( 6 ) PW-4 is Dr. N. K. Aggarwal deposes that he had conducted the post mortem on the body of Bhuri and observed the injuries stated in his report, Ex. PW-4/a. ( 7 ) PW-11 is Amit Yadav who deposes that he was posted as SDM, Shahdara, and on being requisitioned by the police on 16. 7. 1994, he reached GTB hospital and found bhuri, wife of Som Pal, admitted with burn injuries. He visited the burns ward in the said hospital at about 10. 45 a. m. The patient was on bed No. 18. The patient was opined to be fit by the doctor for making a statement by his endorsement at point x on MLC, Ex. PW-6/a. This witness further states that he was satisfied after taking medicl opinion of the doctor that the said patient was in a fit state of mind and thereafter questioned Bhuri who narrated the sequence of events after questions were put to her. The detailed statement, Ex. PW-7/b, was recorded by this witness which was thus b-marked at x by Bhuri. In cross-examination the witness states that he had noted down the statement of Bhuri by putting to her questions and getting her reply. The detailed statement, Ex. PW-7/b, was recorded by this witness which was thus b-marked at x by Bhuri. In cross-examination the witness states that he had noted down the statement of Bhuri by putting to her questions and getting her reply. He further states that right thumb impression of Bhuri was obtained in the presence of a purse who had brought the stamp-pad. ( 8 ) PW-13, R. S. Sharma, who is the record clerk, GTB Hospital, has certified that the MLC, ex. P-6/a, is in the handwriting of Doctor L. Ganveja who has left the hospital services and the whereabouts are not known. ( 9 ) PW-14, S. I. Jiya Ram, states that on 16. 7. 1994 he was posted as ASI at Police post Shastri Park under Police Station seelampur and received information regarding burning of a lady near DDA flats, Shastri Park. He along with Constable Manohar Singh went to the spot of incident where they came to know that the injured had been sent to GTB hospital. This witness, after leaving behind the Constable on the spot, reached the hospital and collected MLC, Ex. PW-6/a, pertaining to Bhuri, the injured. The aforesaid fact was conveyed to the Station House officer from the hospital. He thereafter contacted the injured Bhuri who verbally informed him that she had been raped and burnt by the accused and his brother, Babloo. This version was also conveyed to the Station house Officer who directed PW-14 to inform the SDM. The SDM reached the hospital and this witness was capable of making statement. The statement recorded by the SDM is Ex. PW-7/b. ( 10 ) THE statement of Bhuri recorded by the sdm was sent to the police station on the basis of which an F. I. R. was registered. This witness made recoveries of bangles from A- 24, Shastri Park which were sealed and converted into a pulanda. He also found match-sticks and a pair of lady chappals at the spot as also a container with some kerosene oil. He also saw some kerosene oil spread on the spot. The aforesaid articles were taken into possession vide recovery memo, Ex. PW-4/b, subsequently on coming to know that Bhuri had succumbed to her injuries caused amendments in the F. I. R. , the witness further goes on to state the steps taken during investigation. He also saw some kerosene oil spread on the spot. The aforesaid articles were taken into possession vide recovery memo, Ex. PW-4/b, subsequently on coming to know that Bhuri had succumbed to her injuries caused amendments in the F. I. R. , the witness further goes on to state the steps taken during investigation. ( 11 ) IT is contended by counsel for the accused/appellant that the only piece of evidence available for consideration by this court is the statement of Bhuri which may now be termed as a dying declaration . This statement, according to counsel, inspires no confidence and is not supported by any supportive material to bring home the guilt of the accused. Counsel submits that the story put forth by the deceased is highly improbable inasmuch as it is not possible for the deceased to have been carried away from the roof of her house to an adjacent room and her being subjected to repeated rape by two persons without anybody else having any inkling of what was going on. He also submits that the presence of chappals of the deceased in the room where the alleged incident is stated to have taken place belies her story that she had been picked up forcibly and taken to the room and thereafter subjected to rape. He also contends that the trial court has acquitted the accused of the charge under Section 376 IPC and disbelieved a portion of the dying declaration which again causes grave doubt to the veracity of the statement. ( 12 ) LEARNED Additional Public Prosecutor, on the other hand, contends that the statement of the deceased was recorded by the SDM on the day of the occurrence and that the same was recorded without anybody else being present in the hospital. Therefore, it cannot be said that the statement is tutored and/or is not the first version of the incident. ( 13 ) LEARNED Additional Public Prosecutor further submits that the trial court has given benefit of doubt to the accused regarding the rape since no medical evidence was forthcoming to connect the accused with the rape which, according to counsel, was not possible to obtain in view of the ninety per cent burns on the deceased at the time of medical examination. ( 14 ) WE have heard counsel for the parties and with their assistance gone through the judgment under challenge as also the material on record. From the statements of witnesses, it is clear that the deceased was taken to the hospital by the PCR van shortly after the incident had occurred. There appears to be nobody from the family who accompanied the victim and Doctor L. Ganveja, who prepared the MLC, in the first instance, records that this is a case of rape and burning, obviously, the information could only have been supplied by the deceased herself. There was no other person to have given the history of the case to the doctor. Further, prior to arrival of the SDM at the hospital, the patient had been declared fit for recording of statement at 10. 15. rn. On the MLC we find another information given as fit for statement though no time has been put thereunder. The SDM has recorded the statement f the victim in a question and answer form, from where it appears that the victim was coherent, mentally Sund and in a position to narrate the course of events. Merely because the trial court has chosen to acquit the accused of the offence under Section 376 IPC that too without assigning any reason, does not in itself mean that the statement/dying declaration is not worthy of credence. ( 15 ) THE deceased in her dying declaration very clearly states that she was picked up from the roof of her house and taken to the adjoining room across the street by the accused persons where she was subjected to repeated rape by both the accused persons who kept her in the room throughout the night and at day break poured kerosene oil on her and set her ablaze. ( 16 ) THIS statement is fortified with the recoveries of broken bangles, a kerosene container and match-box from the spot of occurrence and there is nothing on record to show that the spot of occurrence was a kitchen or a store which otherwise would have a kerosene container, match-box etc. stored. ( 17 ) THE accused was arrested from Shastri park on 16. 7. 1994 by SI Jiya Ram, PW-14, and personal search conducted vide Memo ex. PW-10/a. This arrest was made after the statement, Ex. PW-7/b, had been recorded. stored. ( 17 ) THE accused was arrested from Shastri park on 16. 7. 1994 by SI Jiya Ram, PW-14, and personal search conducted vide Memo ex. PW-10/a. This arrest was made after the statement, Ex. PW-7/b, had been recorded. ( 18 ) IN the totality of sequence of events and the material on record, the dying declaration of Bhuri can safely by relied upon being the first information of the incident recorded well within time without any tutoring and/or any external force, threat or motivation. The statement in itself, when read, appears to be coherent, clear and unambiguous. Besides, there is nothing on record to show that Bhuri had any animus against the accused persons. The statement of Bhuri was recorded in question and answer form in which nothing extraneous has been introduced, in which view of the matter, we find no infirmity which should render the dying declaration a suspect. ( 19 ) AS regards the statement of recovery of the chappals of the deceased from the room where the incident has taken place, there is nothing to show that the aforesaid chappals were those of the deceased. Even if the same were taken into possession by the investigating Officer, they have not been identified, being the chappals of the deceased. Consequently, no benefit can be derived from this recovery by the accused persons. ( 20 ) THERE is no doubt that the investigation carried out is shabby and lacks professionalism, yet the material on record, namely, the dying declaration as also the recoveries leave no manner of doubt that the prosecution has been able to bring home the guilt of the accused. The fact that the trial court has recorded acquittal under Section 376 IPC can hardly be pressed into service to tarnish the prosecution s case for the reason that the trial court has nowhere reasoned as to why it is dropping the charge of Section 376 IPC. ( 21 ) HOWEVER, since the State has not come up in appeal against the acquittal of the accused under Section 376 IPC we propose to rest the matter as it stands. In view of our discussion above, we hold that the prosecution has been able to bring home the guilt of the accused and that the judgment under challenge can be sustained. Consequently, Criminal Appeal 94 of 1997 is dismissed. .