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ALLAHABAD HIGH COURT
Dr. Kaushal Jayendra Thaker and Gautam Chowdhary, JJ.
Vishnu —Appellant
versus
State of U.P. —Respondent
Criminal Appeal No.204 of 2021 (From Jail) (Defective Appeal No.386 of 2005)
Decided on 28.1.2021
(A) Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act, 1989—Section 3(1) (xii) and Section 3(2) (v)—Indian Penal Code, 1860—Section 376—Rape—Conviction and sentence—For maintaining conviction under Section 376 I.P.C., medical evidence has to be in conformity with oral testimony—Despite allegation that rape is committed as alleged by prosecutrix, there are no injuries on private part of lady who is a fully grown up lady and who was pregnant and is said to have been threshed—There was a motive on part of complainant that there was land dispute between parties—Medical evidence goes to show that doctor did not find any sperm—Doctor categorically opined that no signs of forcible sexual intercourse were found—This was also based on finding that there were no internal injuries on lady who was grown up lady—There are several contradictions in examination-in-chief as well as cross examination of all three witnesses—Report was lodged three days later—Trial Judge has not given any finding as to fact as to how commission of offence under Section 376 IPC was made out in present case—Reasoning of Judge are against record and are perverse as Judge without any evidence on record on his own has felt that heinous crime was committed because accused had captured will of prosecutrix and because police officer had investigated the matter as a atrocities case which would not be undertaken within purview of Section 3(2)(v) of Atrocities Act and has recorded conviction under Section 3(2)(v) of Act which cannot be sustained—Accused has been wrongly convicted—Judgment and order impugned reversed and accused acquitted—Appeal allowed. (Paras 28, 32, 34, 35, 36, 37, 38, 42 and 43)
(B) Criminal Procedure Code, 1973—Sections 432 and 433—Commutation of sentence— Remission/ commutation of sentence under Sections 433 and 434 of Cr.P.C. is in realm of power vested in Government—Factual scenario in present case would show that had Government thought of taking up case of accused as per Jail Manual, it would have been found that case of appellant was not so grave that it could not have been considered for remission / commutation—Matter to be placed before Hon’ble Chief Justice that periodical listing of matters be taken up in High Court so that those who are in jail for more than 10 or 14 years, where appeals are pending, may at least get their appeal heard which are mainly jail appeals. (Paras 50 and 51)
Result: Appeal allowed.
JUDGMENT
Dr. Kaushal Jayendra Thaker, J.—Since the date of occurrence of the incident, i.e. 16.9.2000, the accused is in jail i.e. since 20 years. 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.
2. By way of this appeal, the appellant has challenged the Judgment and order 24.2.2003 passed by court of Sessions Judge, Lalitpur in Special Case No.43 of 2000, State Vs. Vishnu arising out of Special Case No. 43 of 2000, under Sections 376, 506 of IPC and 3(1)(xii) read with Section 3(2)(v) of Scheduled Casts and Scheduled Tribes ( Prevention of Atrocities) Act, 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) (v) read with Section 3(1)(xii) of Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘S.C./S.T. 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.
3. 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 Haar ( fields ), when 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.
4. 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.
5. 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.
6. The prosecution so as to bring home the charges examined six witnesses, who are as under:-
| 1. | Prosecutrix | P.W.1 |
| 2. | Gulkhai (Father-in-law) | P.W.3 |
| 3. | Brijbhan (Husband) | P.W.3 |
| 4. | Dr. Sarojini Joshi | P.W. 4 |
| 5. | Dr. S.N.H. Rizvi | P.W. 5 |
| 6. | Akhilesh Narayan Singh | P.W. 6 |
7. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
| 1 | F.I.R. | Ext. Ka-7 |
| 2. | Written report | Ext. Ka-1 |
| 3. | M.L.P.C. | Ext. Ka-4 |
| 4. | Injury Report | Ext. Ka-2 |
| 5. | Supplementary report | Ext. Ka-3 |
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