State of U.P. vs Udai Veer Singh alias Munan

Amar Saran, J.—This Government Appeal No. 3705 of 2006 has been preferred by the Stale of U.P. against the judgment and order of the Additional District and Sessions Judge, Fast Track Court No. 2, Kanpur Dehat acquitting the accused respondent Udai Veer Singh alias Munan under Sections 376 and 302 IPC. A Connected Criminal Revision No. 1375 of 2006 has also been preferred by the informant Ram Chandra Tiwari against the judgment of acquittal.

The brief facts of this case were that on 21.3.2005, when the informant Ram Chandra Tiwari returned from the Kutchery to his home in village Kasturi Niwada, he saw his neighbour, the accused respondent running out of his house. When he entered the house, he found his daughter-in-law Smt. Rinki Devi in flames, as a result of which she was tossing about in anguish. He raised a loud alarm, which attracted his neighbour Subhash Chandra and his wife Smt. Shashi Devi and other villagers, who helped in dousing the fire. At that time, his son Vijay Kumar Tripathi, who had gone for his mami''s terahawi (thirteen day ceremony) in village Gaupur arrived there accompanied by his brother-in-law, (sala) Akhilesh.

When they inquired from Smt. Rinki Devi as to how she had caught fire, then Rinki Devi disclosed that the accused respondent had entered the house and thrown her on a cot and forcibly committed rape on her on knife point. When she raised a cry and threatened to complain, then the respondent poured some kerosene oil on her, which was lying in a container nearby. After that Smt. Rinki lapsed into silence. Two children of Rinki Devi Deva 8 years and Vaibhav 5 years were also present.

As the condition of Rinki Devi was serious, after arranging for a tractor, she was immediately taken to Paharipur, where a marshal jeep had arrived from Rasoolabad. By this vehicle the informant proceeded to the Rasoolabad police station where after having given oral information of the incident, as the condition of Smt. Rinki Devi was serious, he took her to Ursula hospital at Kanpur for her treatment, where she died at 3.00 a.m. on 22.3.2005. After the inquest and post mortem were conducted there, the informant lodged the report (Ext. Ka-1) on 22.3.2005 at 11.35 pm. at P.S. Rasoolabad, which was scribed by Ram Kishore Misra. On the basis of the informant''s written report, the chik report and G.D. were prepared (vide Exts. Ka-11 and Ka-12). The police came to the house of the informant on 22.3.2005. After spot inspection, the Investigating Officer S.I. Munna Lal Uttam P.W. 6 prepared recovery memo of burnt clothes, ash, plain mud, broken piece of bangles from the spot, one burnt match box red plastic container containing kerosene oil (Ext. Ka-2), apiece of printed pink saree of the deceased and striped bed sheet (Ext. Ka-3). He also prepared sue plan of the house (Ext. Ka-5). He recorded the statements of the witnesses on 23.3.2005.

He made attempts to apprehend the accused and he submitted the charge sheet (Ext. Ka-6) on 25.4.2005. He proved the signature and writing of S.I. Umesh Chandra, who had prepared inquest (Ext. Ka-4) and connected papers viz. photo lash, letter for C.M.O., the seal, challan lash (Ext. Ka-7 to Ka-10).

Post mortem report (Ext. Ka-13) whose proof was dispensed with by the accused u/s 294 Cr.P.C. showed that the post mortem was conducted on 22.3.2005 at 1.45 p.m. by Dr. Satish Kumar at C.P.C. Bilhour, Kanpur Nagar. Rigor mortis was present in the upper extremities and was appearing in the lower extremities. The ante mortem injuries were as follows:

Skull hair singed. Superficial and deep burn injury all over body except lower part of both legs, feet and soles.

Line of redness present.

Viggo with leucoplast at right wrist joint.

Skin pealed off at places.

Membranes, brain, larynx, trachea and Bronchi, left and right lung, liver, gall bladder, pancreas, spleen and both kidney were congested.

Cause of death was shock due to ante mortem injuries.

Apart from the I.O., P.W. 6 Sri Munna Lal Uttam, P.W. 1 Sri Ram Chandra Tiwari, father-in-law of the deceased, P.W. 2 Vijay Kumar Tripathi, the husband of the deceased, P.W. 3 Chhote Lal, P.W. 4 Uma Shankar Shukla and P.W. 5 Ajay Singh have been examined as witnesses.

P.W. 1 Ram Chandra Tiwari stated that he had gone to the Kutchery at Kanpur in connection with a case. When he returned to his village Kasturi Nivada at 5 p.m., he saw the accused respondent running out of the gate. When he entered the house, he heard the sound of crying. Rushing inside he saw his daughter-in-law Rinki in a desperate burnt condition, crying from pain. He raised a loud cry, which attracted the neighbours. At that moment, his son Vijay Kumar, who had gone for his mami''s terehawi arrived there accompanied by his sala.

When he asked his daughter-in-law as to what had happened, she disclosed that the accused respondent had entered the house, after happened, knife on her, had forcibly thrown her on the cot and had committed rape on her. On her cry and threats, the accused brought a pipiya containing kerosene oil which he sprinkled on her and set her on fire. After that she became silent. Then he took his daughter-idn-law to Paharipur on a tractor. There at his information a marshal jeep had arrived. Uma Shankar P.W. 4 and his son Ajay Kumar, Rajesh Chandra, Ajay Bhadauriya and others were present in the marshal jeep. When they inquired from his daughter-in-law as to what had happened, she disclosed the same story. Then he took his daughter-in-law to Rasoolabad police station and informed them about the incident. The police asked him to rush her to Ursula hospital in Kanpur. He got her admitted at 9.45 p.m. in Ursula hospital, where she died during treatment on 22.3.2005 at 3.00 a.m. His son, the husband of the deceased was also present. Thereafter the inquest was conducted. He dictated the report to his neighbour Ram Kishore and appended his signature on it and then lodged the report at the police station.

P.W. 2 Vijay Kumar Tripathi the husband of the deceased disclosed that he had gone for his mami''s terahawi ceremony in village Gaupur on 21-3-3005. At that time his wife and his two children Deva and Vaibhav were present. When he returned home, he saw a crowd assembled and his children were crying. When he entered, he saw his wife Rinki Devi in a burnt condition. She disclosed to him and other persons present that some time earlier neighbour Udai Veer alias Munan Yadav had forcibly entered the house and after pointing a knife committed rape on her and criminally assaulted her and when she threatened to tell her family members about this incident, he brought a kerosene oil pipiya from the kitchen and poured kerosene oil on her and set her on fire. They took the deceased to Paharipur, where her brother arrived from Rasoolabad on a Marshal jeep. On the Marshal jeep, they carried Rinki Devi to the police station Rasoolabad and after furnishing information there, they got her admitted in Ursula hospital Kanpur, where she was treated and died there on 21.3.2005 at about 2 or 2.30 a.m. Thereafter inquest and post mortem were conducted on the deceased.

P.W. 3 Chhote Lal stated that he was in the market when the incident with Smt. Rinki took place. On hearing of the incident, he arrived there. He bad heard that Munan had molested Rinki and he had seen nothing else. He bad found Rinki in a burnt condition at the door of Banshi Lal. He had not beard diat Munan had committed rape on Rinki. He had also not seen as to how Rinki Devi had been burnt and had no knowledge who had burnt her. He was declared hostile and had denied having given any 161 Cr.P.C. statement to the Investigating Officer that Udai Veer had entered the house and committed rape on Rinki after showing her a knife, issuing threats and pouring kerosene oil and setting her on fire when she protested.

P.W. 4 Uma Shankar Shukla stated that on 21.3.2005 at about 5.30 p.m., he heard about the incident when he was present at Rasoolabad. On receiving the information, he brought a marshal jeep with which he left for the place of incident on a marshal jeep, but at Paharipur he met Rinki, who was being brought on a tractor on a cot in a burnt condition. He took Rinki out of tractor and made her lie down on the marshal jeep. Rinki disclosed to him that at about 5 p.m., when she was alone in the house, Udai Veer alias Munan had entered the house and after pointing a knife at her, he threatened her and committed rape on her when Rinki said that she would disclose this fact to be family members then Munan poured kerosene oil on her and set her on fire. They had gone to the police station on the marshal jeep. After that he had returned home.

P.W. 5 Ajai Singh disclosed that the incident took place on 21.3.2005. The inquest of Rinki Devi, who was the daughter-in-law of Ram Chandra Tiwari, was conducted on 22. 3.2005 at 11 O''clock which ended at about 3.00 a.m. He disclaimed having met Rinki Devi in Kastun village. From Paharipur, Rinki Devi was being taken on a tractor to the police station. He was told by Ram Chandra''s son that Rinki had been burnt. He had met Rinki along with Ajay Tiwari. She was shouting that Munan had committed rape on her and that on her declaration that she would complain about the incident, the accused had set her on fire.

The principal ground for acquittal mentioned by the Trial Judge was that the basis for implicating the accused respondent in this offence was the so called oral dying declaration of Rinki to P.W. 1, Ram Chandra Tiwari, father-in-law. P.W. 2 Vijay Kumar Tripathi, the husband and others. He had recorded a finding that said oral dying declaration is highly suspicious because Rinki''s brother Akhilesh Pandey had filed a complaint in the Court in which his statement u/s 200 Cr.P.C. and statements of other witnesses u/s 202 Cr.P.C. had been recorded, in which Akhilesh Pandey had clearly stated that Rinki had told him and others in the hospital that her husband had illicit relations with two unmarried girls in the village, because of which there were a lot of quarrels between Rinki and her husband. As she was an obstacle to the illicit relations, hence her husband had poured kerosene oil on her and set her on fire.

The other grounds for acquittal were that it was also mentioned that in the statement of Akhilesh Pandey u/s 200 Cr.P.C. that one of the girls with whom his brother-in-law Vijay Kumar Trpathi had illicit relations, Vijay Kumar Tripathi has told her as to why she was not observing karwa chauth brat for him whereupon the girl''s father and Vijay Kumar Tripathi and his father informant Ram Chandra Tiwari quarrelled and 107 and 116 Cr.P.C. proceedings were initiated between the parties. It was further mentioned that to escape from being implicated in this offence, Vijay Kumar Tripthi and Ram Chandra Tiwari his father has implicated the accused respondent for the crime. Further there w as enmity of Vijay Kumar Tripathi with the respondent Udai Veer, because both Vijay Kumar Tripathi and Udai Veer conveted the attentions of the two unmarried girls in the village, and thus by implicating Udai Veer for this crime, Vijay Kumar Tripathi was killing two birds with one stone, saving himself from the crime and eliminating his rival in his quest for the affections of the two unmarried village girls.

Another ground of the Trial Court for the acquittal of the respondent was that admittedly there was no eye witness account of this murder. The evidence was only of the oral dying declaration allegedly made by the deceased Smt. Rinki to P.W. 1 informant Ram Chandra Tiwari, P.W. 2 Vijay Kumar Tripathi, her husband, P.W. 4 Uma Shankar and P.W. 5 Ajai Singh. According to the Trial Judge, as both parties conceded that Smt. Rinki had 90% burns which mainly affected the entire region above the waist and she died within 10 hours of the incident, hence she was not in a position to make the so-called oral dying declaration to the aforesaid witnesses. Also as the doctor, who has examined Rinki in the hospital, was never produced in Court, where he could have disclosed whether Rinki was in a position to make the alleged dying declaration, nor is any such medical report available on record of Rinki giving such a version as mentioned by the prosecution.

The veracity of the dying declaration to the witnesses has also been doubted by the learned Trial Judge, because there was another version viz. the dying declaration made by Rinki to her brother Akhilesh Pandey, which is mentioned in the complaint in his 200 Cr.P.C. statement, which is supported by the two witnesses, who were examined u/s 202 Cr.P.C. and claimed to be eyewitnesses of the incident. According to Akhilesh Pandey, when he along with other family members met his sister in the hospital, then she tearfully narrated that her husband Vijay Kumar, who had a bad character and had illicit relations with two unmarried girls in the village, and there was even exchange of love letters between them, which have been produced by the defence, hence Rinki used to quarrel with her husband P.W. 2 Vijay Kumar on this account.

He had assaulted Rinki and her relations with her husband Vijay Kumar had become very bitter. As Vijay Kumar felt that Rinki was an obstacle to his love affairs, on the date of incident there was a quarrel over the love affairs because Vijay Kumar had sold off wheat, which was kept in the house and had given the sale proceeds to his paramour, which was questioned by Rinki. When first Vijay Kumar assaulted her, after that he set her on fire and this version was corroborated by the two witnesses Brij Mohan Singh and Sher Singh, whose statements have been recorded under Sections 202 Cr.P.C. In view of the fact that there were two dying declarations, hence the Trial Court was of the view that there was no ground for placing implicit reliance in the alleged oral dying declaration made by the deceased before her father-in-law Ram Chandra P.W. 1 informant and Vijay Kumar her husband.

It was further observed by the Trial Judge that the informant Ram Chandra had stated that after getting burnt she had made a disclosure that Udai Veer showed her a knife and committed rape and on saying that she would complain about the incident, he poured kerosene oil and set her on fire. After giving this information, she became quiet. As her condition became serious, hence she was immediately brought to the police station and thereafter taken to the hospital and hence she could not have made any other statement. But P.W. 2 Vijay Kumar, the husband of the deceased, P.W. 4 Uma Shankar Sbukla and P.W. 5 Ajai Singh have deposed that after Rinki had made the disclosure to her father-in-law, when she was being transferred from the tractor to the marshal jeep, she shouted loudly in the presence of her husband, P.W. 4 Uma Shankar and P.W. 5 Ajai Singh that Udai Veer had committed rape on her and thereafter poured kerosene oil and set her on fire and that she was conscious during the night.

Another contradiction pointed out by the Trial Judge that P.W. 1 Ram Chandra had admitted in his cross examination that Rinki was conscious when she reached the police station and she gave a statement to the investigating Officer after which they took her to the hospital. However, the I.O. P.W. 6 Munna Lal Uttam has specifically stated in his cross examination that he has never recorded the statement of Rinki. If Rinki had given such a statement to the Investigating Officer, then his denial of the same in Court also casts a doubt about the reliability of this version according to the Trial Judge. Even if it was assumed that Rinki was conscious in the police station, then in such a condition how did she give a contrary dying declaration before her brother Akhilesh Pandey and her other maternal relations at the hospital.

As dying declarations giving contradictory versions have been mentioned after the commission of the incident and until she was taken to the hospital, hence it could not be said that the dying declaration allegedly made before Ram Chandra and Vijay Kumar Tripathi was of such sterling value that implicit reliance could be placed on the alleged oral dying declaration to her husband and her father-in-law for recording the conviction of the accused respondent.

A doubt has also been raised about the reliability of the F.I.R. because in the F.I.R., it has been mentioned that immediately after Rinki was burnt, his son Vijay Kumar and Rinki''s brother Akhilesh Pandey came together to the informant''s house and that Rinki had given a oral dying declaration before her husband Vijay Kumar and her brother Akhilesh Pandey, but in the evidence in Court, neither P.W. 1 Ram Chandra, nor P.W. 2 Vijay Kumar has mentioned that Akhilesh Pandey was present at the time of incident or whether Rinki had made any statement before Akhilesh Pandey or not. Hence the prosecution has not replied to this objection raised by the defence as to why the version given by Akhilesh Pandey in his complaint may not be treated as correct. Akhilesh Pandey has himself stated in his complaint that he did not go to the informant''s house after the incident, but he had gone along with his family members to meet his sister in the hospital directly and he met her there. There she made the disclosure as described above.

In this manner, the F.I.R. version that Akhilesh Pandey was present along with Vijay Tripathi becomes untrue. Also the alleged disclosure by Rinki to the I.O., which is also mentioned in 161 Cr.P.C. statement of P.W. 1 Ram Chandra is falsified by the fact that the I.O. P.W. 6 disclaimed having made any any enquiry from Rinki. Hence the Trial Judge observed that the solitary circumstance of Ram Chandra claiming that he saw Udai Veer leaving the house in his presence, was not sufficient for reaching a finding of guilt against the accused, because no one other than Ram Chandra had deposed to having seen Udai Veer leaving the house after the incident and thus there is no corroboration of this version of Udai Veer leaving the place by any other witness. P.W. 3 Chhote Lal has also not supported the prosecution story.

P.W. 4 Uma Shankar Shukla and P.W. 5 Ajai Singh also have no personal knowledge of the incident. They only claim that Rinki made such an oral disclosure to them on the way, which for the reasons given in the judgment, do not appear to be very reliable. Even the version of P.W. 2 Vijay Kumar is also unreliable because he never saw the accused leaving the house when he arrived there and the only basis for his information was the disclosure made by Rinki to him. There was no explanation of all these important points, which are inconsistent with version set out in the defence documents. Apart from the alleged dying declaration made to her father-in-law, her husband Vijay Tripathi and the witnesses on the way, no other circumstances have been brought on record for showing the complicity of the accused respondent in this offence.

The Trial Court has further observed that the character of Rinki''s husband Vijay Kumar Tripathi was doubtful because the defence has filed the paper viz. paper cutting of Dainik Jagran dated 16.1.2001, where Ram Chandra had brought out an advertisement that he was severing relations with his son Vijay Kumar alias Ramu and dispossessing him from his movable and immovable property as he was not happy with the conduct and activities of Vijay Kumar. The bad character of Vijay Kumar was apparent from the circumstance that Vijay Kumar had asked one of the unmarried girls with whom he was having illicit relations to observe Karva chauth vrat for him, in which there was a quarrel between Ram Chandra and the father of the girl and 107/116 Cr.P.C. proceedings were initiated between the parties.

Learned Trial Judge, in our view, rightly did not place reliance on the alleged oral dying declaration given to Vijay Kumar, Ram Chandra and to the other witnesses P.W. 4 Uma Shankar and P.W. 5 Ajai Singh, who are said to have been witness to the disclosures made by the deceased on the way to the police station and to the hospital, in the absence of any other corroborative evidence, when a contrary version deposed to by the brother of the deceased was available.

Learned Counsel for the revisionist and learned A.G.A. have, however, contended that an application was moved on 22.11.2005 by the informant Ram Chandra for examination of his two sons Deva aged about 8 years and Vaibhav aged 6 years before the Trial Judge as they were said to be present in the house, but it appears that no orders were passed on the said application.

We have examined the order sheet, which does not even show any mention of the said application. It is also apparent that, no effort was made for bringing the said application to the notice of the Trial Court for the purpose of obtaining orders on the same, even on a subsequent date.

Also according to the order sheet on 22.11.2005 only the examination of P.W. 1 Ram Chandra Tiwari was concluded and 26.11.2005 was fixed for remaining evidence. Also no application u/s 482 Cr.P.C. or under any other provision has been moved before the High Court complaining against the fact that no orders were passed on the said application.

We find that in his 200 Cr.P.C. statement and in the complaint, Akhilesh Pandey has stated that on the date of incident, 21.3.2005 the two children Deva and Vaibhav had gone to house of their uncle Ajay in Rasoolabad and were not present at the time of incident and mentioned that Rinki had disclosed that her two children Vaibhav and Deva had gone to Rasoolabad and they were not present at the time of incident. Even otherwise we wonder what would have been the value of the statement of two children aged about 8 years and 6 years, who are of an easily impressionable age and can be made to depose in any manner and thus Vijay Tripathi and Ram Chandra could have made them to depose in any manner that they chose. We are further of the view that it was only in a half hearted manner that the said application was moved for examination of these two children by the prosecution and the prosecution itself was not serious about pressing this application.

One other point has been weakly raised by the learned A.G.A. that the sheet which was taken in possession by the I.O. probably showed some semen stains. In the first place, there is no confirmation of presence of semen on the sheet, as there is no report of any Serologist confirming the presence of the semen on the sheet. It is also clear that mere presence of some semen mark on the sheet is a natural circumstance, the same could have been left during intercourse of the deceased with her husband. Therefore, this circumstance can be safely ignored.

There is no other corroboration of the allegation of rape on a perusal of the post mortem report or in the statements of the witnesses, who has not been examined by the prosecution. We are further of the view that even if the rival version regarding dying declaration mentioned by Akhilesh Pandey in his complaint and u/s 200 Cr.P.C. statement and the eyewitnesses account of his two witnesses Brij Mohan Singh and Sher Singh examined u/s 202 Cr.P.C. are excluded, we think that on the basis of the alleged dying declaration to the husband P.W. Vijay Kumar Tripathi and her father-in-law P.W. 1 Ram Chandra Tiwari, who have arrived at the spot at the very moment after the accused respondent had committed rape on the deceased and was fleeing from the house and thereafter Smt. Rinki shouted and disclosed the version when she was transferred on to the marshal jeep before P.W. 4 Uma Shankar Shukla and P.W. 5 Ajai Singh, are not sufficient for establishing the complicity of the accused respondent for the offence, it is noteworthy that the prosecution has had no courage to produce Akhilesh Pandey the brother of the deceased, who according to the FIR was accompanying his brother-in-law Vijay Kumar Tripathi when he is alleged to have arrived at the spot immediately after the incident, and when Smt. Rinki made the claimed disclosure to him. If Akhilesh Pandey had been produced by the prosecution and had corroborated the version of the informant Ram Chandra Tiwari and Vijary Kumar Tripathi, his version would have carried considerable weight, because he was the real brother of the deceased. Therefore his non-production by the prosecution should give rise to an adverse inference against the prosecution. Under illustration (g) to Section 114 of the Evidence Act, that Court may presume, that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.

It should be noted that it has come in the evidence of P.W. 5 Ajai Singh that Paharipur from where Rinki was taken out from the tractor, and placed on the marshal jeep, where she is said to have shouted that the accused respondent had committed the crime with her, was at a close distance from Rasoolabad, as they reached Rasoolabad within 15 or 20 minutes. Yet we find utter silence regarding any such disclosure to the Investigating Officer or to any person at the police station Rasoolabad. Thus, there appears no corroboration of this version, which was only given to the husband or father-in-law and the closely connected partisan witnesses Uma Shankar Shukla, whose son was married to Ram Chandra''s niece and who had brought the marshal jeep to take Rinki to the police station and the hospital and Ajai Singh, who was also a close neighbour and no independent witness has supported this version.

Ordinarily when a girl dies in her marital home, the needle of suspicion for such a crime usually points to the husband and her in-laws. It cannot be ruled out in these circumstances that the informant father-in-law of the deceased in order to deflect the finger of suspicion pointing at them have decided to foist the case on the accused respondent who was a neighbour to save his own son, and himself from being implicated in this crime.

For these reasons it cannot be said that the trial Court''s judgment of acquittal is unreasonable or perverse or that two views of the evidence could not have been taken, or that such compelling circumstances existed for justifying interference with the order of acquittal. There is thus no force in this Government Appeal and Criminal Revision.

The accused respondent is on bail after the admission of this Government appeal. His bail bonds are cancelled and sureties discharged. He need not surrender to the bail granted to him. The Government appeal and Criminal Revision preferred by the informant are accordingly, dismissed.