Rape-accused acquitted after 20 years of wrongful conviction: Allahabad High Court
Accused wrongfully convicted for Rape, criminal intimidation, and charges under Scheduled Castes and Scheduled Tribes Act, 1989 was acquitted after being in jail for 20 years. The Allahabad High Court set aside the conviction of the said accused in the case of Vishnu vs. State of Uttar Pradesh [Criminal Appeal no. 204 of 2021] presided over by the bench of Hon’ble Justice Kaushal Jayendra Thaker and Justice Gautam Chaudhary. In the above-cited case, on 16-9-2000, the accused had tried to rape the prosecutrix for which he was convicted for the charges of Rape and criminal intimidation and other offences under Scheduled Castes and Scheduled Tribes Act, 1989. The Appellant (accused) was in jail for 20 years. He had made an appeal for challenging his conviction by the session’s court which was finally being heard in the High Court on 28th January 2021. Files were re-opened and it was found that in the medical examination of the prosecutrix, no injury was seen inside or outside her private parts. No proof showed that Rape was committed. The FIR was lodged by the woman’s family after 3 days of the incident which somehow gave an impression that they must have strategized the whole incident. Also, the testimony of the prosecutrix was found not to be that of a sterling witness and the medical evidence on evaluation belied any case against the accused/ appellant. It was found that after 14 years of incarceration, the State of UP did not send the matter to the Magistrate for a re-evaluation of the cases for remission as per the mandate of Sections 432 and 433 of Cr.P.C. and as held by Apex Court in a catena of decisions even if appeals are pending in the High Court. The High Court contended that the case was not grave and it could have been considered for remission/ commutation. Hence, Allahabad High Court took the decision of acquitting the rape accused after being sentenced for 20 years and stated that “Most unfortunate, aspect of this litigation is that the appeal was preferred through the jail. The matter remained as a defective matter for a period of 16 years and, therefore, we normally do not mention defective appeal number but we have mentioned the same.” 
 1 Court No. 49 Case : CRIMINAL APPEAL No. 2021read with Section 3(2)(v) of Scheduled Casts and Scheduled TribesAct 1989 Police Station Mehroni District Lalitpur whereby the accused appellant was convicted under Section 376 IPC and sentenced to imprisonment for a period of ten years with fine of Rs.2 000 and in case of default of payment of fine to undergo further rigorous imprisonment for six months he was further convicted under Section 3(2 read with Section 3(1)(xii) of Scheduled Casts and Scheduled Tribes Prevention of Atrocities) Act 1989 and sentenced to imprisonment for life with fine of Rs.2 000 and in case of default of payment of fine to undergo further rigorous imprisonment for six months and he was further convicted under Section 506 IPC and sentenced to undergo rigorous imprisonment under Section 506 IPC. All the sentences were to run concurrently as per direction of the Trial Court. The brief facts as per prosecution case are that on 16.9.2000 at about 2:00 p.m. the prosecutrix was going from her house in village Silawan P.S. Mehroni to Haarwhen she reached near mango tree named black mango tree situted on the road leading to Zaraia accused Vishnu son of Rameshwar Tiwari who had hidden behind the bushes caught hold of her with bad intention and behind the bushes he committed rape with her by pressing her mouth and went away extending threat that if any report is lodged at the police station or this fact is divulged to anyone he will kill her. She went back to the house and disclosed the whole incident to her family members who did not go to the police station due to threat and went to Lalitpur and on 19.9.2000 she along with her father in law Gulkhai and husband Bragbhan hiding themselves went to the police station for reporting the said incident C.O. Narahat Akhilesh Narain Singh tookup the investigation visited the spot prepared site plan recorded statements of the prosecutrix and witnesses and after completing investigation submitted charge sheet against the accused C.O. Narahat Akhilesh Narain Singh tookup the investigation visited the spot prepared site plan recorded statements of the prosecutrix and witnesses and after completing investigation submitted charge sheet against the accused The prosecution so as to bring home the charges examined six witnesses who are as under: 3 Gulkhaiand 3(2)(v) of S.C. S.T Act 1989 is concerned the learned Sessions Judge convicted the accused due to the fact that the victim was a person belonging to Scheduled Caste Community though there were no allegations as regard the offence being committed due to the caste of the prosecutrix and there were no allegations of commission of offence which would attract the provision of Section 3(2)(v) read with Section 3(1)(xii) of SC ST Act Learned counsel for appellant has relied on the following decisions of the Apex Court rendered in the case of Sadashiv Ramrao Hadbe Vs Alld(Cri) so as to contend and submit that in fact no case is made out so as to convict the accused under Section 376 IPC leave apart the offence under Sections 506 IPC and Section 3(1)(xii) and read with Section 3(2)(v) of S.C. S.T. Act 1989 and the prosecutrix has roped in the accused with ulterior motive i.e. land dispute between her family members and the accused. It is submitted by learned counsel for the State that prosecutrix belongs to Scheduled Caste community and the judgment of learned Trial Judge cannot be found fault with just because there is silence on the part of the prosecutrix. It is submitted that the incident occurred because of the caste of the prosecutrix. It is further submitted that any incident on person belonging to a particular caste would be an offence. It is further submitted by learned counsel for the State that the accused ravished the prosecutrix as she was belonging to lower strata of life. Learned counsel for the appellant has relied on the judgment of Sadashiv Ramrao Hadbe Vs. State of Maharashtraand has submitted that she presses for clean acquittal of the accused and not for a fixed term incarceration though the appellant has been in jail for more than 20 years. In support of her submission she presses into service the judgment in the case of Manne Siddaiah @ Siddiramulu (xii) and Section 3(2)of the Act read with Section 376 of the Code. The conviction as well as the sentence of the appellant herein is set aside.” Learned counsel for appellant presses into service the judgment in the case of Sadashiv Ramrao Hadbe Vs. State of MaharashtraAct 1989 and has contended that the incidence reported is prior to 2016 amendment more particularly relates to the year 2000 where no offence of S.C. S.T. Act 1989 has been committed on the lady on the basis of her caste belonging to a particular caste. The learned Trial Judge has misread the provisions of law just because the prosecutrix is belonging to scheduled caste community the offence would not be made out 15. We are unable to convince ourselves with the submission made by learned AGA for State that she has been a victim of atrocity as well rape and therefore the accused should not be leniently dealt with. 16. We have been taken through the evidence and the deposition mainly of prosecution witnesses and judgment of Trial Court. We have read the same and are discussing the same. of the Scheduled Castes and Scheduled Tribes Act 1989 read as follows : “(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed ” Provision of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes Act 1989 read as follows : v) commits any offence under the Indian Penal Codepunishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member shall be punishable with imprisonment for life and with fine Provision of Section 376 I.P.C. read as follows : “376. Punishment for rape.— 1) Whoever except in the cases provided for by sub sectioncommits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age in which cases he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment Whoever — a) being a police officer commits rape— i) within the limits of the police station to which he is ap pointed or ii) in the premises of any station house whether or not situated in the police station to which he is appointed or iii) on a woman in his custody or in the custody of a police officer subordinate to him or b) being a public servant takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him or c) being on the management or on the staff of a jail remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s insti tution takes advantage of his official position and commits rape on any inmate of such jail remand home place or institution d) being on the management or on the staff of a hospital takes advantage of his official position and commits rape on a woman in that hospital or e) commits rape on a woman knowing her to be pregnant or f) commits rape on a woman when she is under twelve years of age or g) commits gang rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention each of the persons shall be deemed to have committed gang rape within the meaning of this sub section. Explanation 2.—“Women’s or children’s institution” means an institution whether called an orphanage or a home Rafiq Versus State of U.P. AIR 1981 SC page 559 Nawab Khan Versus State 1990 Cri.L.J. Page 1179 and the judgment in Bharvada Bhogin Bhai Hirji Bhai Versus State of Gujarat AIR 1983 SC page of Evidence 29. We venture to discuss the evidence of the prosecutrix on which total reliance is placed and whether it inspires confidence or not so as to sustain the conviction of accused. There were concrete positive signs from the oral testimony of the prosecutrix as regards the commission of forcible sexual intercourse. In case of Ganesan Versus State Represented by its Inspector of Police Criminal Appeal No. 6820No.49720) decided on 14.10.2020 wherein the principles of accepting the evidence of the minor prosecutrix or the prosecutrix are enshrined the words may be that her testimony must be trustworthy and reliable then a conviction based on sole testimony of the victim can be based. In our case when we rely on the said decision it is borne out that the testimony of the prosecutrix cannot be said to be that of a sterling witness and the medical evidence on evaluation belies the fact that any case is made out against the accused. The evidence of Dr. Smt. Sarojini Joshi Medical Officer PW 4 C.H.C. Mehroni who medically examined the prosecutrix on 19.9.2000 at 8:45 p.m. found no external or internal injury on the person of the victim On preabclomen examination uterus size was 20 weeks and ballonement of uterus who was present. On internal examination vagina of the victim was permitting insertion of two fingers. Internal uterine ballonement was present. The victim complained of pain during internal examination but no fresh injury was seen inside or outside the private part. Her vaginal smear was taken on the slide sealed and sent for pathological investigation for examination. The doctor opined both in occular as well as her written report that the prosecutrix was having five months pregnancy and no definite opinion about rape could be given In the x ray examination both wrist A.P. all eight carpal bones were found present. Lower epiphyses of both writst joints were not fused on which he complained some villagers about the accused who denied about the incident therefore they decided to go to the police station on the next day but the police refused to lodge the report on the ground that no one was present in the police station therefore they went on third day of the incident to lodge the FIR. After this again he contradicts his story in his own statement recorded on cross examination on the next date stating that the incident was told by his daughter in law to his wife who told him about the same. There is further contradiction in the statements of this witness. In examination in chief he states that the parties called for Panchayat but there is nothing on record that who were the persons called for Panchayat. If the pregnant lady carries fifth month pregnancy is thrashed forcefully on the ground then there would have been some injury on her person but such injuries on her person are totally For maintaining the conviction under Section 376 Cr.P.C. medical evidence has to be in conformity with the oral testimony. We may rely on the judgment rendered in the case of Bhaiyamiyan @ Jardar Khan and another Versus State of Madhya Pradesh 2011 SCW3104. The chain of incident goes to show that the prosecutrix was not raped as would be clear of Scheduled Casts and Scheduled Tribes Prevention of Atrocities) Act 1989 is concerned the FIR and the evidence though suggests that any one or any act was done by the accused on the basis that the prosecutrix was a member of Scheduled Castes and Scheduled Tribes then the accused can be convicted for commission of offence under the said provision. The learned Trial Judge has materially erred as he has not discuss what is the evidence that the act was committed because of the caste of the prosecutrix. The sister in law of the prosecutrix had filed such cases her husband and father in law had also filed complaints. We are unable to accept the submission of learned AGA that the accused knowing fully well that the prosecutrix belongd to lower strata of life and therefore had caused her such mental agony which would attract the provision of Section 3(2)(v) of the Atrocities Act. The reasoning of the learned Judge are against the record and are perverse as the learned Judge without any evidence on record on his own has felt that the heinous crime was committed because the accused had captured the will of the prosecutrix and because the police officer had investigated the matter as a attrocities case which would not be undertaken within the purview of Section 3(2)(v) of Atrocities Act and has recorded conviction under Section 3(2)(v) of Act which cannot be sustained. We are supported in our view by the judgment of Gujarat High Court in Criminal Appeal No.706 in the case of Pudav Bhai Anjana Patel Versus State of Gujarat decided on 8.9.2015 by Justice M.R. Shah and Justice Kaushal Jayendra Thakera sentence of death for any other punishment provided by the Indian Penal Code b) a sentence of imprisonment for life for imprisonment for a term not exceeding fourteen years or for fine c) a sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced or for fine a sentence of simple imprisonment for fine.” “Section 434. Concurrent power of Central Government in case of death sentences. The powers conferred by sections 432 and 433 upon the State Government may in the case of sentences of death also be exercised by the Central Government.” Section 433 and 434 of the Cr.P.C. enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section. We are pained to mention that even after 14 years of incarceration the State did not think of exercising its power for commutation of sentence of life imprisonment of the present accused and it appears that power of Governor provided under Article 161 of the Constitution of India are also not exercised though there are restriction to such power to commute sentence. The object of Sections 432 read with Section 433 of the Cr.P.C. is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave. In our case we do not see that why the accused is not entitled to remission. His case should have been considered but has not been considered Remission commutation of sentence under Sections 433 and 434 of the Cr.P.C. is in the realm of power vested in the Government. The factual scenario in the present case would show that had the Government thought of taking up the case of the accused as per jail manual it would have been found that the case of the appellant was not so grave that it could not have been considered for remission commutation. 48. Most unfortunate aspect of this litigation is that the appeal was preferred through jail. The matter remained as a defective matter for a period of 16 years and therefore we normally do not mention defective appeal number but we have mentioned the same. This defective conviction appeal was taken up as listing application was filed by the learned counsel appointed by Legal Services Authority on 6.12.2012 with a special mention that accused is in jail since 20 years. Seeing this sorry State of Affairs we request the Registrar (Listing [ 17 through the Registrar General to place the matter before Hon ble the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years where the appeals are pending may at least get their appeal heard which are mainly jail Section 433 and 434 of the Cr.P.C. enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section. We are pained to mention that even after 14 years of incarceration the State did not think of exercising its power for commutation of sentence of life imprisonment of the present accused and it appears that power of Governor provided under Article 161 of the Constitution of India are also not exercised though there are restriction to such power to commute sentence. The object of Sections 432 read with Section 433 of the Cr.P.C. is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave. In our case we do not see that why the accused is not entitled to remission. His case should have been considered but has not been considered Remission commutation of sentence under Sections 433 and 434 of the Cr.P.C. is in the realm of power vested in the Government. The factual scenario in the present case would show that had the Government thought of taking up the case of the accused as per jail manual it would have been found that the case of the appellant was not so grave that it could not have been considered for remission commutation. Seeing this sorry State of Affairs we request the Registrar (Listing through the Registrar General to place the matter before Hon ble the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years where the appeals are pending may at least get their appeal heard which are mainly jail 52. A copy of this judgment be sent to the Law Secretary State of U.P who shall impress upon the District Magistrates of all the districts in the State of U.P. to reevaluate the cases for remission after 14 years of incarceration as per mandate of Sections 432 and 433 of Cr.P.C. even if 18 appeals are pending in the High Court. 