JUDGMENT : Hon'ble Ashwani Kumar Mishra, J. This criminal appeal is directed against the impugned judgment and order dated 11th February, 2015 passed by the Additional Sessions Judge, Court No. 3, Hathras in Session Trial No. 97 of 2013 (State of U.P. v. Lokesh and others), arising out of Case Crime 296 of 2007, whereby accused-appellants-Lokesh, Dani and Indra have been convicted and sentenced for one year rigorous imprisonment each for the offence under Section 452 I.P.C. with fine of Rs. 1,000/- each, in default thereof, to further undergo one month each additional imprisonment; life imprisonment for the offence under Section 302/34 I.P.C. with fine of Rs. 5,000/- each, in default thereof, to further undergo, three months additional imprisonment; and ten years rigorous imprisonment for offence under Section 376 I.P.C. each with fine of Rs. 5,000/-, in default thereof, to further undergo three months each additional imprisonment, with an observation that all the sentences are to run concurrently. 2. We have heard Mr. Araf Khan, learned counsel appearing for the accused-appellants and Mr. Aruendera Singh, learned A.G.A. for the State as also perused the entire materials available on record. 3. This case is a classic example of how an unscrupulous person can utilise even a misery befallen on him to avenge his enmity by falsely implicating his enemy. 4. In the facts of this case, on the basis of a written report (Exhibit-ka/1) a First Information Report came to be lodged at Police Station M.M. Gate, Agra, as Case Crime No. Nil of 2007, under Sections 376 and 307 I.P.C. on 29th April, 2007, in respect of the incident occurred on 27.4.2007 at around 02:30 p.m., whereafter the FIR has been transferred to the Police Station-Sadabad, where the same was numbered as Case Crime No. 296 of 2007, under Sections 376, 307 and 452 I.P.C. The informant/P.W.-1 happens to be the father of the victim who had gone with his wife to his relative's place and was not present at the place of occurrence when the incident occurred. The victim/deceased aged 18 years was a 1st year law student studying in B.S.A. College, Mathura. The victim/deceased aged 18 years was a 1st year law student studying in B.S.A. College, Mathura. When she was alone in her house and her grand-parents had gone towards the Jungle/forest, at around 2:30 p.m. the accused Lokesh, Dani, Indu/Indra, all sons of Surajmal and Hukum, friend of Lokesh, entered the house of the informant, grabbed the victim who was attending to the domestic chores and was intoxicated. The victim had objected to it but the four accused gagged her mouth and forcibly committed rape. With an intent to remove the evidence of crime, the accused then poured kerosene on the deceased; and set her ablaze, and fled. The victim was on the first floor of the house, rushed out screaming and somehow managed to come down the stairs whereafter neighbours tried to douse the fire. The informant was intimated about the incident and was told that they (neighbours) are bringing the victim to Agra. The informant was asked to meet them at S.N. Medical College, Agra. Persons from the village accordingly brought the victim in an injured state and her condition was critical. The victim was admitted in the emergency ward. She was struggling with life and death. On being asked, the victim informed P.W.-1/informant about the incident. On account of treatment and other exigencies, it was not possible for the informant/P.W.-1 to lodge a timely report and as the incident has to be reported to police, the informant has lodged the report at the police station. The F.I.R. was initially registered at Police Station M.M. Gate, Agra and was later transferred to Police Station-Sadabad, District Hathras, where it was registered as Case Crime No. 621-35 -Nil of 2007 under Sections 376 and 307 I.P.C. 5. On the date of incident itself i.e. 27.4.2007 the dying declaration of the victim was recorded after the doctor certified that the victim, aged 18 years, is clinically fit for giving her dying declaration. The contents of the dying declaration are reproduced hereinafter: (Emphasis supplied by us) 6. The victim was taken first to S.N. Medical College, Agra, where the Doctor examined her. The victim had 90% burns. Smell of kerosene was present on her. The victim was referred for her internal examination to the District Government Women Hospital, Agra. Dr. Meera Mathur (P.W.-6) conducted the internal examination of the victim and opined as under: ''Internal Examination-No injury seen over private parts. The victim had 90% burns. Smell of kerosene was present on her. The victim was referred for her internal examination to the District Government Women Hospital, Agra. Dr. Meera Mathur (P.W.-6) conducted the internal examination of the victim and opined as under: ''Internal Examination-No injury seen over private parts. Pubic hairs present. Vagina admits two fingers easily. Hymen was old torn. Uterus anteverted. Normal size. No burn marks present over private parts. Vaginal smear taken and sent to pathology department, District Hospital, Agra for examination for the presence of spermatozoa. For determination of age, case is referred to Chief Medical Officer, Agra.'' 7. With reference to opinion of P.W.-6, the vaginal swabs were sent for pathological report wherein no spermatozoa was spotted on the swabs. 8. As per the evidence collected during the course of the investigation, some procedure was to be performed upon the victim on 28th April, 2007. As the condition of the victim deteriorated, she was taken to Safdarjang Hospital, New Delhi, where she ultimately succumbed to her injuries on 14th May, 2007. The post-mortem report is on record as per which the approximate percentage of burn injuries is 90%. The cause of death was septicaemia due to following ante-mortem external burn injuries: ''Present on all over the body except patches of head, abdomen, pelvis and both feet. In state of burn injuries, line of redness, charring, granulation tissue are present on all involved areas.'' 9. In the post-mortem report, following is the status of internal examination of the victim: ''In head (scalp and skull) no abnormality detected. Brain; congested. In neck, naso-laryngo-pharynx-mucosed congestion. In chest, lungs congested, trachea and bronchi, mucosal congestion. Further in chest, no abnormality detected in heart. In abdomen, stomach was empty, no abnormality was detected in mucosal wall. No abnormality was detected in intestines, liver, spleen, kidneys and pancreas. In pelvis, bladder was empty, no abnormality was detected in uterus, hymen tear in healing phase. No abnormality was detected in rest of structures inside the body.'' The Autopsy Surgeon has further opined that the death of the victim could be caused due to other reasons including attempt to suicide. 10. After the death of the victim, the F.I.R. was converted to one under Section 302 I.P.C. in place of Section 307 I.P.C. The investigation proceeded in the matter wherein statement of various witnesses were recorded. 10. After the death of the victim, the F.I.R. was converted to one under Section 302 I.P.C. in place of Section 307 I.P.C. The investigation proceeded in the matter wherein statement of various witnesses were recorded. One of the persons whose statement was recorded under Section 161 Cr.P.C. is Babu Lal who is the grand father of the victim. The investigation concluded with the submission of charge-sheet against four accused on 31st July, 2007. The list of witnesses to be produced by the prosecution contains a noticeable absentee i.e. grand father of the victim, namely, Babu Lal. Upon submission of the charge-sheet under Chapter XII Cr.P.C., the concerned Magistrate took cognizance and referred the matter to the Court of Sessions where charges were framed against the accused on 13th June, 2008 under Sections 376, 302/34 and 452 I.P.C. The charges so framed were read out to the accused-appellants, who denied the accusation and demanded trial. 11. The prosecution in order to prove its case has produced the first informant Prakash Veer as P.W.-1. This witness has supported the prosecution case in his examination-in-chief. He has clearly stated that when his parents (grand parents of the victim) had gone towards the Gher and forest, in the afternoon four accused entered in the house at around 2:30 P.M.; grabbed the victim; committed rape upon her; and whereafter set her ablaze by pouring kerosene so that the evidence could be destroyed. He has proved the contents of the First Information Report lodged in the matter. He has stated that the victim was admitted uptill 2.5.2007 at S. N. Medical College, Agra whereafter she was taken to Safadarganj Hospital, Delhi where she died. 12. In the cross-examination, P.W.-1 has stated that he and P.W.-3 are real brothers. They live in a double story house where their shares are already segregated. Northern portion of the first floor fell in the share of P.W.-1, while southern portion fell in the share of P.W.-3. This witness is a Law Graduate although he has not got himself registered. In the cross-examination, this witness has admitted that his brother (P.W.-3) has five children, who were living in the same house. He has denied the suggestion that either the victim set herself on fire or she caught fire accidentally while cooking food. This witness is a Law Graduate although he has not got himself registered. In the cross-examination, this witness has admitted that his brother (P.W.-3) has five children, who were living in the same house. He has denied the suggestion that either the victim set herself on fire or she caught fire accidentally while cooking food. He has further stated that while taking the victim to hospital, the victim informed her mother that in case she was present, the incident could be avoided. He has stated that while the victim was being taken to Ashoka Hospital, she was not conscious. She was largely unconscious and could open her eyes in between. The seriousness of victim increased and she was unconscious when she reached S.N. Hospital, Agra. It is then stated that around 06:00 p.m. the victim became conscious after she was given first aid treatment. He also stated that he was with his daughter in the emergency room and she narrated the entire incident to him. He denied the suggestion that his parents were at home at the time of occurrence. He has also denied previous enmity between him and the accused persons. He has nevertheless admitted that in 1989 an incident occurred in respect of which cross cases were lodged between father of accused and the informant's family, in which a compromise was ultimately entered between them. He has further denied the existence of any criminal case. 13. P.W.-1 has been cross-examined at length and he has disclosed the topography of his house. There exists 5-6 rooms in the ground floor of the house while another 5-6 rooms exist on the first floor of the house. There is an open Courtyard on the upper floor and the roof is open on the western side. There is about 10 feet height boundary around the house of P.W.-1. There is a kitchen on the upper floor measuring 8 x 7 feet. At the time of incident, the parents of the informant/P.W.1 were present in the house. While the mother of P.W.-1 lived with P.W.-3, his father was living on his side. He has admitted that he had left alongwith his wife and is not aware as to what was cooked by his daughter. He has denied any knowledge about the person who doused the fire after the victim came down the stairs. 14. While the mother of P.W.-1 lived with P.W.-3, his father was living on his side. He has admitted that he had left alongwith his wife and is not aware as to what was cooked by his daughter. He has denied any knowledge about the person who doused the fire after the victim came down the stairs. 14. P.W.-1 has also admitted that after the victim was admitted to the emergency ward there was no improvement in her condition which worsened later. P.W.-1 in his cross-examination has stated that the statement of his father under Section 161 Cr.P.C. about him alongwith his wife (P.W.-1 and P.W.-2) to relative's place at Agra and that grand-father Babu Lal and victim alone were in the house is correct. He has admitted that statement of his father under Section 161 Cr.P.C. was recorded in his absence. This witness has lastly stated that his statement before the Court is based upon the hearsay information received from others. 15. P.W.-2, namely, Kamlesh Chaudhary (wife of first informant/P.W.-1) happens to be the mother of the victim and has supported the prosecution case. She has substantially adopted the stand taken by P.W.-1 at the stage of trial. In her cross-examination she has admitted that in the incident in question, the hands of her father-in-law Babu Lal also got burnt. However, Babu Lal had not accompanied the victim to the hospital. She has admitted that at the time of incident her father-in-law Babu Lal was living with her. She has also admitted that there was no estrangement, irritation or enmity between her father-in-law and herself. P.W.-2, has rather admitted that her father-in-law used to love them. A specific statement was made that there is no loss of love between the victim and her grand father. It is also admitted that on the date of the incident meals were prepared for her father-in-law by the victim. 16. P.W.-3 Raj Bahadur, who is the uncle of the victim, in his cross-examination has stated that he saw the accused running in the lane soon after the incident of fire. He claims that he raised an alarm after he saw the victim and with the help of villagers the fire was doused by him. He has also stated that the victim was taken to Agra in the vehicle of Yogesh for treatment. He has fully supported the prosecution case. This witness has been cross-examined. He claims that he raised an alarm after he saw the victim and with the help of villagers the fire was doused by him. He has also stated that the victim was taken to Agra in the vehicle of Yogesh for treatment. He has fully supported the prosecution case. This witness has been cross-examined. He has stated that his wife and children live with him in the same house and the age of his eldest daughter is 20 years. This witness has stated that about half an hour was consumed in dousing the fire. 17. P.W.-4 was posted as Head Moharir at Police Station M.M. Gate District Agra on the relevant date when the F.I.R. was registered. He has proved the Chik F.I.R. He has admitted that vide Entry No. 28 dated 27th April, 2007 in the G.D., an entry was made in the police station with regard to a burn patient having been admitted with 90% burns. 18. P.W.-5 is Doctor Ramkumar Gupta who has proved the pathological report as per which no dead or live spermatozoa has been found on the victim. P.W.-6 is Doctor Meena Mathur, who had conducted the internal examination of the victim, soon after she was referred by the S.N. Medical College, Agra to the District Government Women Hospital. This witness has clearly stated that there were no injury on the private parts of the deceased and her hymen was old torn. P.W.-7 Shivraj Singh was posted as Sub-Inspector at Police Station M.M. Gate, Agra and has incorporated the contents of the F.I.R. in the case diary and referred the matter to the concerned Police Station i.e. Police Station-Sadabad, District Hathras. 19. P.W.-8 Udai Veer Singh Baliyan is the Investigating Officer, who was posted at Police Station Sadabad. He has admitted that in the statement under Section 161 Cr.P.C. it is recorded that the victim Preeti is substantially burnt and is not in a position to speak and on account of obstruction in the trachea an operation is proposed to be conducted on 28th April, 2007. P.W.-1, however denied giving copy of the written report to him. He has also admitted that the victim was not in a position to give her statement and no inquiry was made from the concerned doctor in that regard. 20. P.W.-1, however denied giving copy of the written report to him. He has also admitted that the victim was not in a position to give her statement and no inquiry was made from the concerned doctor in that regard. 20. P.W.-9 Mahesh Chandra, the then Assistant Sub-Inspector posted at Sarojini Nagar Police Station, New Delhi within the territorial limits of which Safdarjang Hospital is situated, has conducted the inquest of the deceased at Delhi and has also proved the same. 21. P.W.-10 Anil Kumar Soan is the Officer of the Forensic Science Laboratory, Agra who has proved the forensic report as per which no semen has been found on the victim. P.W.-11 Hakim Singh was the second Investigating Officer in the case. 22. P.W.-12 Ranveer Singh was the first Investigating Officer from the police Station Sadabad. This witness has recorded the statement of Babu Lal, who is the father of P.W.-1. The extract of the statement of Babu Lal recorded under Section 161 Cr.P.C. is referred to in the statement of P.W.-12, which is reproduced hereinafter : 23. This witness has also recorded the statement of Raghuraj under Section 161 Cr.P.C., who has stated that the girl Preeti had not taken name of anyone in connection with the fire. The statement of Tara Singh has also been recorded by this witness in which he has stated that on the date of incident, while burning, she (victim) did not complain that someone had set her on fire or that someone had raped her. This witness has also recorded the statement of Bhuri Singh, who has stated that the victim had caught fire while cooking. She had not told that accused Lokesh, Dani, Indal, Hukum Singh raped her and thereafter set her on fire. Statement of Ramesh has also been recorded by P.W.-12 in which he has reiterated the same version as was stated by Bhuri Singh. Similarly, in the statement of Bhudevi, wife of Bhajan Lal, which has been recorded by P.W.-12 it has been stated that the victim has not taken any name and she told that she had caught fire while cooking food. 24. Dr. R. B. Lal, has been produced as P.W.-13, who had given the fitness certificate to the victim at the time of recording of her dying declaration. 24. Dr. R. B. Lal, has been produced as P.W.-13, who had given the fitness certificate to the victim at the time of recording of her dying declaration. He has clearly stated that the injured was burnt over 90% of her body and her condition was deteriorating continuously. However, the victim was conscious but her pulse was weak. He has stated that when he inquired from the victim as to whether any untoward act has been committed, the victim gestured in affirmative. In the cross-examination this witness has admitted that he had not inquired about the cause of burn as the victim was not in a good condition and attempts were being made to save her life. A question was posed to this victim as to whether the questioning of victim could have posed any risk to her life? In reply, the Doctor opined that when all attempts were being made to save her life, he was not inclined to interfere with the team attending the victim. He has also stated that the condition of the victim was much below normal but she was conscious. He has also stated that just because on going treatment be not adversely affected, as such, he had not made any unnecessary queries from the victim. 25. P.W.-14 Rajesh Kumar Prajapati is the Deputy Collector of Mathura, who was present at the time of recording of dying declaration of the victim. He has stated that the victim was conscious and the Doctor had certified her to be fit to give her statement. This witness however has not been able to tell as to who was the Doctor present and what is the difference between a Doctor and Compounder. He has admitted that there is no recital in the declaration of the victim that the statement was read out to the victim nor the Doctor was inquired as to how the incident occurred with the victim. 26. P.W.-15 N.K. Chaudhary is the Investigating Officer, who has proved the topography of the house in which the incident occurred. P.W.-16 is Dr. Alexander F. Khanva, who is the Autopsy Surgeon and has proved the autopsy report. P.W.-17 Rakesh Chandra Sharma, who was the Investigating Officer and submitted the charge-sheet in the matter. 26. P.W.-15 N.K. Chaudhary is the Investigating Officer, who has proved the topography of the house in which the incident occurred. P.W.-16 is Dr. Alexander F. Khanva, who is the Autopsy Surgeon and has proved the autopsy report. P.W.-17 Rakesh Chandra Sharma, who was the Investigating Officer and submitted the charge-sheet in the matter. P.W.-18 Jagdish is the village Chaukidar, who has stated that he informed the concerned police station about the incident after he acquired knowledge of it on phone from his wife. He has stated in his cross-examination that villagers informed him that while the victim was cooking food, she accidentally caught fire and got burnt. 27. On the basis of above evidence produced by the prosecution, the statements of the accused-appellants have been recorded under Section 313 Cr.P.C. in which the accused have denied the accusation made against them. They have stated that since semen has not been found on the victim the commissioning of offence of rape is not proved. They have also stated that evidence has been falsely created and they have been implicated in the present case due to previous enmity. 28. On the basis of evidence so led in the matter by the prosecution the Court below has come to the conclusion that the prosecution has proved its case beyond reasonable doubt and consequently the accused-appellants are convicted for the offences under Sections 452, 302/34 and 376 I.P.C. and sentenced to life imprisonment with fine, as already recorded above. 29. Challenging the judgment of the Court below Mr. Araf Khan, learned counsel for the accused-appellants submits that the accused-appellants have been falsely implicated in the matter due to told enmity and false evidence has been created to implicate them. It is submitted that grand father of the victim, namely, Babu Lal was present in the house and had clearly admitted in his statement recorded under Section 161 Cr.P.C. that the victim had accidentally caught fire while cooking food and that is why the prosecution deliberately excluded him from the list of the witnesses prepared in the charge-sheet. Mr. Khan further submits that the investigation is faulty and attempt has not been made to ascertain the truth and for such purposes relevant witnesses, who were present in the house, have not been produced. Mr. Khan further submits that the investigation is faulty and attempt has not been made to ascertain the truth and for such purposes relevant witnesses, who were present in the house, have not been produced. It is urged that apart from Babu Lal, others who were present in the house were the family members of P.W.-3, who have not been produced. Mr. Khan further submits that the allegation of rape upon the victim is not substantiated as no injury was found on her and even the pathological report does not support commissioning of rape. He further submits that the dying declaration is not reliable in the facts of the present case since the victim was not in a position to give any statement. He next submits that no satisfaction is recorded by the Doctor about the victim being in a fit mental state to give her statement. No such satisfaction otherwise is recorded by the Magistrate/Deputy Collector, either. He submits that contents in the dying declaration regarding parents being present in the village is otherwise falsified by the statement of prosecution witnesses i.e. P.W.-1 and P.W.-2, which clearly shows that the narration of the facts in the dying declaration are incorrect. He also submits that the condition of the victim was critical and her trachea was blocked for which operation was proposed and, therefore, the victim otherwise was not in a position to speak or to get her dying declaration recorded. 30. Mr. Khan, learned counsel, therefore, submits that this is a case of accidental fire during cooking of food by the victim and the family members have taken advantage of it to falsely implicate the accused and thereby settle their old enmity. It is urged that the evidence on record has not been examined in correct perspective by the trial Court. 31. It is also urged on behalf of the accused-appellants that the incident was reported to police at Police Station Sadabad itself by P.W.-8 and the statements of various witnesses including Babu Lal, Raghuraj Singh, Tara Singh, Bhuri Singh and Bhudevi etc. were recorded as per which it was a case of accidental burn and in order to get over it a subsequent F.I.R. was lodged, as an after-thought, falsely implicating the accused-appellants on the basis of which the accused-appellants have been convicted. 32. were recorded as per which it was a case of accidental burn and in order to get over it a subsequent F.I.R. was lodged, as an after-thought, falsely implicating the accused-appellants on the basis of which the accused-appellants have been convicted. 32. Sri Arunendra Singh, learned A.G.A. on the other-hand submits that the dying declaration has been proved wherein specific allegations of rape and pouring kerosene upon the victim are levelled alongwith the allegation of setting her on fire and, therefore, the prosecution has established its case beyond reasonable doubt. Mr. Singh also submits that P.W.-3 has otherwise seen the accused persons rushing out of lane soon after the incident which also supports the prosecution case about offence being committed by the accused. He thus submits that this is a case in which a young girl has been raped and then burnt to death which warrants no leniency and, therefore, the conviction of the accused-appellants merits no interference. 33. Prosecution case is that while first informant (P.W.-1) and his wife (P.W.-1 and P.W.-2) were out of the house and the victim alone was engaged in the domestic work in the house, all the four accused entered in the house in the afternoon at about 2:30 p.m. and finding the victim alone, grabbed her and sniffed some intoxicating substance on account of which she lost her consciousness. The accused also gagged her mouth by a cloth and subjected her to rape, one after the other and with an intent to alienate the evidence, they poured kerosene upon the victim and she was set ablaze. The victim in flames came down from the upper floor and the neighbours arrived and the fire was doused. The victim was then taken to Agra and the informant was also asked to reach S. N. Medical College, Agra. The victim admittedly was 18 years of age and was a student of L.L.B. first year. The prosecution in order to prove its case has essentially relied upon oral testimony of prosecution witnesses of fact and has also relied upon the dying declaration wherein the victim has specifically implicated the accused of subjecting her to rape and thereafter, setting her ablaze. 34. The trial Court has found the witnesses to be reliable and the dying declaration has also been found credible and reliable which formed the basis for conviction of the accused. 34. The trial Court has found the witnesses to be reliable and the dying declaration has also been found credible and reliable which formed the basis for conviction of the accused. The challenge to the prosecution case is primarily laid on the ground that dying declaration is not reliable; prosecution witnesses have made a false deposition on account of prior enmity between families of the informant and the accused. Mr. Khan, learned counsel for the accused-appellant also submits that the available evidence on record has not been produced by the prosecution and it toed the line of reasoning suggested by the informant (P.W.-1) for settling their personal scores. 35. In order to examine the contention advanced on behalf of the defence, we proposes to deal with all three aspects separately, one by one. 36. Before proceeding to discuss the issues raised in this appeal we may note some background facts. The three accused, namely Lokesh, Dani and Indu are the sons of one Surajmal who had inimical relations with the informant. This enmity was on account of a litigation between the parties commenced in the year 1989 in which a compromise is alleged to have been entered between the parties. Some criminal proceedings also ensued between the parties. This defence version is clearly admitted by the prosecution witnesses. P.W.-1 in his statement. P.W.-1 has stated that though there was an enmity between the parties but he maintains no enmity towards the accused though the accused may be inimical to him. Cross cases were lodged between the informant and the father of the accused. A evasive reply was given in respect of criminal proceedings. Other prosecution witnesses have also not disputed the factum of prior enmity between the parties. The factum of enmity otherwise stands acknowledged categorically in the alleged dying declaration of the victim. From the evidence available on record, therefore, it is more or less admitted that the father of the accused, namely, Surajmal and the informant had inimical relations in the past on account of civil and criminal proceedings. The prosecution witnesses have also alleged some compromise but the details in that regard have not been placed by the prosecution in evidence. The law is settled that enmity is a double-edged sward inasmuch as it can be a cause for commissioning the offence and also for falsely implicating a person. The prosecution witnesses have also alleged some compromise but the details in that regard have not been placed by the prosecution in evidence. The law is settled that enmity is a double-edged sward inasmuch as it can be a cause for commissioning the offence and also for falsely implicating a person. The evidence on record, in this case, therefore, will have to be examined carefully in the context of inimical relations between the parties. 37. The evidence adduced by the prosecution reveals that soon after the incident occurred on 27.4.2007, the victim was taken to S.N. Medical College, Agra. For her internal examination, the victim was referred to the District Government Women Hospital, Agra. Notwithstanding severe burn on major parts of the body, the abdomen and her private parts were saved fortunately. The internal examination of the victim shows that there were no injury over the private parts of the victim. Victim's hymen was found to be old torn. There was no burnt marks present on the private parts of the victim. The injury report prepared by P.W.-6 has been proved by the doctor during the course of trial. The medical evidence also shows that vaginal swabs of the victim were sent for pathological examination wherein no spermatozoa has been found to exist on the victim. The medical evidence on record, therefore, does not support commissioning of rape upon the victim. 38. We find substance in the contention of the appellants' counsel that in an incident where a young girl/lady is forcibly subjected to an offence under Section 376 I.P.C. by four persons, some sort of injury would be caused to her. The prosecution case of rape, therefore, does not find corroboration from the medical evidence. This aspect has not been explained by the prosecution neither before the Court below nor before us. 39. Prosecution case heavily relies upon the dying declaration of the victim which has already been extracted above. This dying declaration records the satisfaction of the Doctor that the victim was clinically fit for recording of her dying declaration. 40. The contents of the dying declaration are that the victim/deceased was alone at home and was cleaning utensils when the accused entered in the house. The victim has categorically stated that her father had gone to the field and her mother was attending the animals in their enclosure (Bada). 40. The contents of the dying declaration are that the victim/deceased was alone at home and was cleaning utensils when the accused entered in the house. The victim has categorically stated that her father had gone to the field and her mother was attending the animals in their enclosure (Bada). This statement of fact contained in the dying declaration, however, does not find support from the prosecution witnesses themselves. The evidence, in regard to the presence of victim's parents, is just the otherwise. The father of the victim has been adduced in evidence as P.W.-1 who has clearly stated that he had left to a relative's place early in the morning on the date of incident. Similar statement is made by the mother of the victim, who appeared as P.W.-2. The version of prosecution in the First Information Report, lodged after two days of the incident, is that the parents of the victim had gone to a relative's place at the time of occurrence. The evidence of prosecution, therefore, clearly proves that the recital in the dying declaration about victim's father having gone to the field and mother to the animals' enclosure (Bada) is incorrect. This contradiction in the dying declaration and the testimony of prosecution witnesses compel us to examine more carefully the contents of the dying declaration. 41. The attending circumstances in which the dying declaration of the deceased has been highlighted on behalf of the accused-appellants at length. Statement of P.W.-1 has been relied upon in which he has clearly admitted that by the time the victim reached Ashoka hospital, she was largely unconscious and only at times opened her eyes. P.W.-1 has categorically stated that the seriousness of victim increased with the passage of time. It is also stated that when she arrived at S.N. Hospital/Medical College, Agra she was unconscious. It is then stated that the victim became conscious at around 6:00 p.m.. The doctor who has examined the victim prior to recording of her dying declaration has stated that the victim had sustained superficial to deep burn injuries on substantial part of her body and the burn content is to the extent of 90%. The condition of the victim was continuously deteriorated. On being asked by the doctor as to whether any untoward incident has occurred with the deceased, she nodded and thereby answered in affirmative, by way of her gesture. The condition of the victim was continuously deteriorated. On being asked by the doctor as to whether any untoward incident has occurred with the deceased, she nodded and thereby answered in affirmative, by way of her gesture. The doctor has not stated that the victim made any statement herself. This doctor has been cross-examined and a specific question was put to him as to whether any effort was made to ascertain the reason of burn caused to the victim. To this, the doctor has replied that considering the condition of victim, it was not appropriate to put unnecessary questions to her as the anxiety was to somehow save her life. In reply to a further question as to whether the victim could die during the course of her questioning, the doctor has opined that serious attempts were being made to save her life and he did not think it proper to interfere with the attempt of the team who was trying to save the victim. He has further stated that at the time of medical examination the condition of the victim was much below normal (apparently suggesting that she was critical) but she was conscious. 42. At this juncture, we would also like to refer to the statement of the investigating officer who recorded the statement of P.W.-1 under Section 161 Cr.P.C. wherein he has admitted that victim was substantially burnt and was not in a position to speak. There was obstruction in the trachea and attempt was being made to conduct an operation. The statement, in that regard, is extracted here-in-after : 43. This witness has further stated that victim was not in a position to give her statement and that he made no inquiry from the doctor in that regard. 44. The evidence available on record, therefore, shows that the victim was in a critical state and her trachea was congested. 45. It has therefore to be seen as to whether the victim was in a position to make her dying declaration and whether necessary precaution had been taken by the prosecution to ensure that victim was in a proper mental shape to make a declaration. 46. The primary evidence that the victim was in a fit mental state to make a dying declaration is of the attending doctor who has been produced as P.W.-13. 46. The primary evidence that the victim was in a fit mental state to make a dying declaration is of the attending doctor who has been produced as P.W.-13. We have noticed that this witness in his statement has mentioned the critical situation of the victim. There is no satisfaction recorded by the doctor on the dying declaration that victim was in a fit mental state to give a voluntary statement. P.W.1 has otherwise admitted that the victim was unconscious when she was brought to the S.N. Medical College at around 6:00 p.m.. He has also admitted that only after administering of first aid, the condition of the victim improved and she became conscious. It is not clear as to what kind of first aid was given to the injured victim but considering her serious condition, it is logical to expect that some short of pain killer may have been given to her. In such circumstances, mere recording of satisfaction by the doctor that patient was conscious, was not sufficient. A specific satisfaction was warranted regarding fit metal state of the victim. No such satisfaction has been recorded by the doctor. Merely stating that the patient is clinically fit does not amount to a satisfaction with regard to fit mental state of the patient. The ability of the victim to speak was severely compromised as per the prosecution evidence itself. 47. We are therefore doubtful of the victim being in a proper mental shape to have given a conscious voluntarily statement which could qualify to be a dying declaration. The Magistrate/Deputy Collector who has recorded the dying declaration of the victim has also admitted that no questions were put to the victim regarding her fit mental state. 48. At this juncture, we would like to refer to the observation of the Supreme Court in Paparambaka Rosamma and others v. State of Andhra Pradesh, (1999) 7 SC 695, wherein the Court while referring to the dying declaration observed that mere statement that patient is conscious while recording the statement is not sufficient. In a case where injured had sustained 90 % burn injuries, it was necessary to ascertain the fit mental state of the injured before accepting the dying declaration. Paragraph 9 of the judgment is reproduced hereunder : ''9. It is true that the medical officer Dr. In a case where injured had sustained 90 % burn injuries, it was necessary to ascertain the fit mental state of the injured before accepting the dying declaration. Paragraph 9 of the judgment is reproduced hereunder : ''9. It is true that the medical officer Dr. K.Vishnupriya Devi (PW 10) at the end of the dying declaration had certified patient is conscious while recording the statement. It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P.Koteswara Rao (PW 9) who performed the post-mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K.Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that patient is conscious while recording the statement. In view of these material omissions, it would not be safe to accept the dying declaration (Ex.P-14) as true and genuine and was made when the injured was in a fit state of mind. From the judgments of the Courts below, it appears that this aspect was not kept in mind and resultantly erred in accepting the said dying declaration (Ex.P-14) as a true, genuine and was made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the Courts below.'' (Emphasis supplied by us) 49. The observation made in the case of Paparambaka Rosamma (supra) has been reiterated in a subsequent decision of the Supreme Court in the case of Naresh Kumar v. Kalawati and others, 2021 SCC OnLine SC 260, wherein the Supreme Court after referring to the above quoted paragraph No. 9 observed as under in para-13 : ''13. The observation made in the case of Paparambaka Rosamma (supra) has been reiterated in a subsequent decision of the Supreme Court in the case of Naresh Kumar v. Kalawati and others, 2021 SCC OnLine SC 260, wherein the Supreme Court after referring to the above quoted paragraph No. 9 observed as under in para-13 : ''13. In the facts and circumstances of the present case, considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.'' (Emphasis supplied by us) 50. The statement of the Magistrate/Deputy Collector is categorical that the contents of the dying declaration were not read out to the victim and no satisfaction in that regard is otherwise recorded in the dying declaration. In Suriender Kumar v. State of Haryana, (2011) 10 SCC 173 , the Supreme Court questioned the dying declaration also on the ground that such a satisfaction about the contents of the dying declaration having read out to the victim was missing. In paragraph No. 25 of the judgment, the Supreme Court observed as under : ''25. As per the prosecution, the incident took place at 2 a.m. on 26.6.1991 and as per her statement, the occurrence of burning was in the evening of 25.6.1991, that is, the previous day. The dying declaration did not carry a certificate by the Executive Magistrate to the effect that it was a voluntary statement made by the deceased and that he had read over the statement to her. The dying declaration was not even attested by the doctor. As stated earlier, though the Magistrate had stated that the statement had been made in mixed dialect of Hindi and Punjabi and the statement was recorded only in Hindi. Another important aspect is that there was evidence that Kamlesh Rani was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness. In our view, the trial Court rightly rejected the dying declaration altogether shrouded by suspicious circumstances and contrary to the story of prosecution and acquitted the appellant.'' (Emphasis supplied by us) 51. In our view, the trial Court rightly rejected the dying declaration altogether shrouded by suspicious circumstances and contrary to the story of prosecution and acquitted the appellant.'' (Emphasis supplied by us) 51. It is in the context of the deliberations aforesaid that we are persuaded to attach importance to the wrong narration of facts in the declaration about the father being at the field and mother of the victim being in the animals' enclosure (Bada), to be crucial. The fact that dying declaration refers to an old enmity between the family is also not very natural. Though it is otherwise claimed that four young men committed rape upon the victim but the fact that no injuries were found on her private parts also assumes significance. It is otherwise admitted that there was old enmity between the two families, and therefore, possibility of false implication of three real brothers could have been orchestrated to ensure appropriate revenge for the old enmity. The dying declaration is therefore neither found credible nor can be relied upon in the facts of the present case. This aspect of the matter has not been examined by the trial Court. The prosecution has failed to explain the circumstances, noticed above, which creates a doubt upon the dying declaration. 52. This takes us to the other limb of the prosecution evidence which is the oral testimony of its witnesses. Admittedly, none of the witnesses have seen the incident and there is no eye-witness account. P.W.-1 and P.W.-2 admittedly were not present at the place of occurrence. The only testimony relevant is that of P.W.-3 who happens to be uncle of the deceased. He claims that he has seen the four accused coming out of the lane just around the time when the victim came down after she caught fire. This testimony of P.W.-3 is also not convincing and suffers from same infirmity, from which suffers the testimony of P.W.-1 i.e. the old enmity. Although, P.W.-3 states that he called the neighbours and assisted in fire being doused upon the victim but P.W.-1 and P.W.-2 in their statements have claimed that incident was informed to them by Jagveer (not produced) and not by P.W.-3. Although, P.W.-3 states that he called the neighbours and assisted in fire being doused upon the victim but P.W.-1 and P.W.-2 in their statements have claimed that incident was informed to them by Jagveer (not produced) and not by P.W.-3. Presence of P.W.-3 at the place of occurrence is otherwise questioned on the ground that in the statements of other witnesses, namely, Smt. Sumitra and Smt. Sukhbiri under Section 161 Cr.P.C., it is noticed that P.W.-3 was driving his car when he received telephonic information that the victim had sustained burn injuries. 53. The relevant statements of Smt. Sumitra and Smt. Sukhbiri are reproduced herein below: Statement of Smt. Sumitra Statement of Sukhbiri These two witnesses are not produced by the prosecution. No reasons are otherwise discernible for their non-production except that it was not clear whether they would support the prosecution version. 54. We are therefore, not much impressed by the oral testimony of P.W.3 nor we find his testimony reliable for forming an adverse opinion against the accused or with regard to their complicity. No other witness of fact has been produced by the prosecution. The oral testimony is thus not sufficient in the facts of the case to return a finding of guilt against accused-appellants. The circumstances relating to presence of P.W.-3 at the place of occurrence is not explained by the prosecution. 55. In the backdrop of the evidence led by the prosecution, we find it rather strange and unnatural that the grand father of the victim, namely, Babu Lal, who was present in the house and who had also sustained burn injuries in his hand (as per P.W.-2) was not produced by the prosecution. No plausible explanation in that regard has been placed. Babu Lal was otherwise a natural witness who admittedly was not inimical to the victim. The statement of Babu Lal under Section 161 Cr.P.C. has been noticed by P.W.-12 which supports the plea of defence that the incident occurred in some manner other than the manner suggested by the prosecution. Babu Lal has also admitted that victim never disclosed him that anyone was responsible for pouring kerosene or for causing burn injuries to the deceased. The statement of Bhu Devi wife of Bhajan Lal is also to similar effect and she too has not been produced in evidence. Babu Lal has also admitted that victim never disclosed him that anyone was responsible for pouring kerosene or for causing burn injuries to the deceased. The statement of Bhu Devi wife of Bhajan Lal is also to similar effect and she too has not been produced in evidence. The witnesses of fact who were present on the spot were the relevant persons who could have thrown light on the manner in which the incident itself occurred. The fact that such evidence has been withheld by the prosecution renders the prosecution version wholly unreliable. Although, the Court below has referred to the evidence of prosecution but the fact that the contents of the dying declaration are inconsistent with the statements of prosecution witnesses and no satisfaction was recorded about the fit state of mind of victim has been overlooked. The inimical relations between the parties have also not been factored it. 56. Critical situation in which the victim was at the time of the making of dying declaration has also not been evaluated in correct perspective. In such circumstances, we cannot approve the findings returned by the Court below that the prosecution has established its case beyond reasonable doubts. The findings of the Court below holding the accused-appellants guilty of offence stands reversed. 57. In view of the discussions and deliberations held above, this appeal succeeds and is allowed. The judgment and order of conviction and sentence dated 11th February, 2015 passed by the Additional Sessions Judge, Court No. 3, Hathras in Session Trial No. 97 of 2013 (State of U.P. v. Lokesh and others), arising out of Case Crime 296 of 2007, against the accused-appellants, is set aside. 58. The accused appellants-Dani and Indra, who are reported to be in jail since 2007, shall be released forthwith, unless they are wanted in any other case on compliance of Section 437-A Cr.P.C. whereas the accused-appellant Lokesh, who is reported to be on bail, need not surrender and his bail bonds shall stand discharged subject to compliance of Section 437-A Cr.P.C. 59. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Hathras henceforth, who shall transmit the same to the concerned Jail Superintendent for release of the accused-appellants in terms of this judgment.