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State Of U.P. v. Umesh @ Ashwani & Others - GOVERNMENT APPEAL No. 5196 of 2003 [2007] RD-AH 14328 (21 August 2007)


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       Court No. 46

Government Appeal No. 5196 of 2003

Government of U.P...........................................................Appellant


Umesh alias Ashwani and others....................................Respondents


Hon'ble Amar Saran, J.

Hon'ble Shiv Shanker, J

A prayer for bail is being made in this Government appeal which was admitted against a judgement and order dated 16.6.2003 passed by the Additional District and Sessions Judge, Kanpur Dehat in S.T. No. 441 of 2002, acquitting the respondents of charges under Sections 376, 302, 120-B, 201, 328, 342 IPC, police station Sikandra, district Kanpur Dehat by a Bench of Hon'ble R.C. Deepak and Hon'ble V.K. Verma, JJ. on 11.4.07. While admitting the appeal the Bench had also issued non-bailable warrants against accused-respondents Umesh alias Ashwani, Balram Pal and Kailash Babu Shukla who were produced in Court in pursuance of the said order on 15.5.2007.  As the Bench was not inclined to release the respondents-accused, it summoned the record and also directed that the case be placed before Hon'ble the Chief Justice for nominating another Bench, which would dispose of the bail application or the hearing of this government appeal.  By an order of Hon'ble Senior Judge dated 19.5.2007, this case had been directed to be listed before a Bench presided over by one of us (Hon'ble Amar Saran,J. ).

We have perused the judgement and record and heard Shri V.S. Mishra, learned counsel for the respondents and the learned Additional Government Advocate for the State of U.P on the prayer for bail.  

It has been argued by Shri Mishra that the trial judge had recorded a reasonable finding that there was no evidence of rape or evidence of murder, hence bail should be granted to the accused-respondents.

The prosecution allegations in this case were that on 25.4.2002, Km. Shobha Gupta, the deceased, aged 16 years, who was studying in  Janta Inter College, Umarpur in Class 11 had been called to the college through accused-respondent Balram Pal, a Class-IV employee of the college, who told her that her class teacher, the accused-Umesh alias Ashwani wanted her presence in the college. On this information Km. Shobha Gupta reached the college at 2.00 P.M. whereupon accused-Balram, asked her to go to room No. 2. As soon as she reached room No. 2, Umesh alias Ashwani quickly closed the door and caught hold of her and thereafter he forcibly committed rape on her.  After that he took her to the science laboratory where he forced her to drink some poisonous substance. The accused-Balram remained standing at the door keeping a watch. The girl made efforts to be freed, but she was unsuccessful and she received a number of injuries on her body.  The next day when she became conscious at 1.00 P.M. she found herself in a private nursing home in Auraia. After that she went to police station Sikandra, where she lodged a report scribed by Sadhna Singh. Ashwani was the son of the Principal of the college, co-respondent Kailash Babu Shukla and Balram had assisted  Ashwani to commit rape on Km. Shobha Gupta.

The FIR of this incident was lodged at 2.30 P.M. on 26.4.2002 at case crime No. 103 of 2002, under Sections 376/342/328/120-B IPC IPC at police station Sikandra, district Kanpur Dehat. As after lodging of the FIR  Shobha was sent to Dufferin hospital where her condition became serious, she was referred to Hallet hospital, Kanpur where her statement under Section 161 Cr.P.C. was recorded by the investigating officer. Thereafter she died and Section 302 IPC was also added to the case.

It was argued by Shri V.S. Mishra that the evidence of the different doctors who examined Shobha was inconsistent in respect of injuries suffered by the deceased, and could not be relied upon. Initially Km. Shobha was examined by P.W. 7 Dr. Vishwanath Katiyar on 25.4.2002. He found the girl lying on a cot under a tree in front of the school. At that time she was not speaking. As he was a B.A.M.S. Doctor, he said that he was not capable of treating her and she should be taken outside for medical treatment. Thereafter she was examined by Dr. G.N. Agrawal at  Prarthana Nursing Home, Auraiya, where she was brought in the night at about 3.00 A.M. Dr. Agarwal stated that Km. Shobha was vomiting and there was pain in her stomach. He gave her medicine and injection for stomach-ache, and for controlling her vomiting and for raising her blood-pressure. At about 6.15 A.M. he checked her again, at that time she was conscious and was talking to the persons present. Then he recommended that she should be taken to a senior doctor. He further mentioned that a Daroga Ji had come at about 9.30 A.M., and taken away the girl, who was also accompanied by some leaders of the Kisan Union. Thereafter Shobha was taken to PHC, Sikandra, where she was examined by Dr. Chandra  Shekhar Chaturvedi, the medical officer in-charge. She was brought by lady constable Sudha at about 5.15 P.M. on 26.4.2002 to the PHC. He treated her and gave her some inection. There was no disclosure about rape to him by the persons present.  After receiving the letter for medical examination, he referred her to Dufferin hospital.

It was argued that up-to this stage there was no disclosure by anyone including the victim, nor was it noted by any of the doctors that rape had been committed on the girl. As rape is something which caused great humiliation to a person, it is possible that the persons who are accompanied Km. Shobha Gupta were not talking about the rape on her at that stage. However, Dr. Kiran Sinha, Medical Officer, who examined Km. Shobha on 27.4.2002 at 12.10 P.M. at Dufferin hospital has clearly noted in her medical examination that girl was drowsy and sleepy, but responding to stimuli. There was a teeth bite on her right cheek. Abrasion mark on left elbow at the olecranon process. A Cut mark was seen on the planter aspect of the left leg. Hymen was torn. Vagina admits two fingers with difficulty.  No blood or semen stains was seen on P/V.  Vaginal smear was taken and slide made for spermatozoa. In the opinion of the doctor rape had been committed on the girl and on examination of the x-ray report etc. the doctor opined that the girl was about 18 years of age.

It was further argued by Shri Mishra that the bite mark on the right cheek was not seen by any other doctor and even in the post-mortem report, nine injuries which are noted only show an abraded contusion 4 cm x 3 cm on the right side face 2 cm lateral to right angle of mouth.  Also as per the medical examination report conducted by P.W. 10, Medical Officer, Hallet hospital some abrasions were seen on the right cheek.

We do not see how it matters whether the injuries on the right cheek are described as an abraded contusion or an abrasion or a bite mark by different doctors. If violence had been committed with a girl and there are marks of injuries all over her body, this much is certain that she has not voluntarily caused these injuries to herself nor is she a consenting party to any sexual assault on her.

Learned counsel, however, sought to argue that the level of serum bilirubin was very high as noted by P.W. 13 Dr. Ajay Kumar at the Arsala hospital, who examined her on 27.4.2002 and that actually the deceased had died as a result of jaundice.

We do not understand how the girl would have received so many injuries on different parts of her body if she had not been raped and died as a result of jaundice. Also even though it is unfortunate that P.W. 1 Sadhna, who, although, she admits being the scribe of the FIR, seems to have been won over by the defence and has been declared hostile, and has denied the disclosure of rape by the girl and has suggested that the FIR was actually dictated by the police officer, but we see no reason for the police officer to invent such a story and put the FIR in the mouth of the deceased and record her 161 Cr.P.C. of the girl, if no such incident as alleged had transpired. On the contrary it appears that because of their financial clout the accused have tried to tamper with the evidence.  

The criminal revision, which was filed by the complainant, the mother of Km. Shobha was admitted by Hon'ble S.S. Kulshrestha, J by an order dated 1.8.2003.  It was mentioned in the said order   relying on Tellu and another Vs. State (1988) Cr.L.J. 1062, that the statement of the girl under Section 161 Cr.P.C. could be considered as dying declaration.

In AIR 2004 SUPREME COURT 2884 "Dastagir Sab v. State of Karnataka" it has been held that even when there are no injuries on the prosecutrix a charge of rape is not automatically discounted and persons are not likely to stake their reputation and future by  making a false charge of rape, although in this case several injuries have noted by Dr. Kiran, and in the post mortem report which corroborates the allegation of rape.  

Also although poison could not be found in the viscera, but the circumstances of the case do suggest that after the crime, the deceased was made to forcibly drink some substance, which has resulted in her death and as the earlier Bench of Hon'ble R.C. Deepak and Hon'ble V.K. Verma, JJ rightly observed in the order dated 11.4.2007 that " the unfortunate victim lost her life leaving strong circumstances against the accused, who sexually assaulted and forced her to die. These circumstances are cognizable  for the purpose of deciding the case on merit, but the learned trial judge appears to have ignored the cognizable evidence and prevailing circumstances and twisted the same according to his own wisdom and understanding for the reason best known to him." Thereafter the Bench granted leave to appeal.

We agree with this reasoning of the bench of Hon'ble R.C Deepak and Hon'ble V.K. Verma JJ. We think that no case for bail has been made out at least for the respondent-accused Umesh alias Ashwani, a class teacher of victim Km. Shobha and Balram Pal, the peon of the college, who actively assisted him, is made out.

Therefore,  bail to respondents-accused Umesh alias Ashwani and Balram Pal is refused.

However, so far as the co-accused Kailash Babu Shukla, the principal of the college is concerned against whom, it was observed by the Bench of Hon'ble R.C. Deepak and Hon'ble V.K. Verma, JJ,  that he may have influenced the prosecution machinery in supporting the prosecution case and succeeded in removing the relevant evidence, but his case was found distinguishable from the cae of respondents Umesh alias Ashwani and Balram Pal, hence he was enlarged on bail by the earlier Division Bench by its order dated 4.5.2007.

As two accused-respondents are in jail in pursuance of this order and the record has been received, we direct the registry to prepare the paper-books of this case within three months and list the case for final hearing thereafter.

Dated: 21.8.2007



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