# Aftaf @ Nafees @ Pappu v. State of U.P. Opp. Party

- **Citation:** (2022) 11 ILRA 1250
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-03
- **Case number:** Crl. Appeal No. 5275 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aftaf-nafees-pappu-v-state-of-u-p-opp-party-47788
- **Pages:** 8

## Headnote

Criminal Law- Indian Penal Code, 1860 -
Section 376 - The Scheduled Castes and
the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989- Section 3 (2) (v) -
P.W.1,
in
his
cross
examination,
categorically mentions that he has not
seen the appellants committing any kind
of sexual intercourse with the prosecutrix.
P.W.3, whose oral testimony has been
considered, also categorically states that
she
cannot
conclusively
opine
that
whether there was commission of sexual
intercourse against the will or against the
consent of the prosecutrix. None of the
ingredients has been proved by the
prosecutrix. Neither the F.I.R. nor the oral
testimony have been remotely suggests
the same. So as to attract the provisions
of Section 375 read with Section 376 of
IPC and Section 3 (2) (v) of SC/ST Act,
ingredients of the said offence has to be
proved. There is no evidence which goes
to show that the offence by the appellant
is
committed
on
the
ground
that
prosecutrix belongs to scheduled caste.
The improvement in statement before
lower Court was made by the prosecutrix,
P.W.2, stating that appellant first asked
her caste and name of her husband then
commit the said offence. This is nothing
else but a totally manufactured evidence.
In the medical report of the prosecutrix,
no injury was found on her private part.
Neither the First Information Report nor
the oral testimony of P.W.1 to P.W.5 even
remotely suggest that the accused knew
the prosecutrix.

Where the prosecution has failed to prove the
offence of rape by either oral or medical
evidence and there is also no evidence to
establish that the accused knew the caste of the
victim from before, then the conviction of the
accused is liable to be set aside. (Para 15, 16,
17, 19, 20, 21)
11 All. Aftaf @ Nafees @ Pappu Vs. State of U.P.
1251
Criminal appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

1250 INDIAN LAW REPORTS ALLAHABAD SERIES
out the agricultural field and jewellery
being recovered from beneath the earth was
within
the
exclusive
knowledge
of
Appellant and as such when no explanation
has been offered by Appellant, prosecution
case gets strengthened.

31. The trial court on the aforesaid basis
has come to the conclusion that the
prosecution has been able to prove its case
against the Appellant under Section 411 I.P.C.
and thereafter, convicted the Appellant.

32. The Appellant has failed to dislodge
the prosecution case and no circumstance has
been stated which would entitle the finding of
conviction and sentence recorded by the trial
court as per-se perverse. This Court is in
agreement with the conviction and sentence
recorded by the trial court in the impugned
judgment.

33. In view of the aforesaid, the present
appeal lacks merit and is, accordingly,
dismissed and as a consequence bail granted
to the Appellant is cancelled.

34. Office is directed to return the
record of the lower court forthwith along with
a
copy
of
this order
for
necessary
compliance.
----------
(2022) 11 ILRA 1250
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Crl. Appeal No. 5275 of 2008

Aftaf @ Nafees @ Pappu ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Rakesh Dubey, Sri S.G. Hasnain

Counsel for the Respondents:
Govt. Advocate

Criminal Law- Indian Penal Code, 1860 -
Section 376 - The Scheduled Castes and
the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989- Section 3 (2) (v) -
P.W.1,
in
his
cross
examination,
categorically mentions that he has not
seen the appellants committing any kind
of sexual intercourse with the prosecutrix.
P.W.3, whose oral testimony has been
considered, also categorically states that
she
cannot
conclusively
opine
that
whether there was commission of sexual
intercourse against the will or against the
consent of the prosecutrix. None of the
ingredients has been proved by the
prosecutrix. Neither the F.I.R. nor the oral
testimony have been remotely suggests
the same. So as to attract the provisions
of Section 375 read with Section 376 of
IPC and Section 3 (2) (v) of SC/ST Act,
ingredients of the said offence has to be
proved. There is no evidence which goes
to show that the offence by the appellant
is
committed
on
the
ground
that
prosecutrix belongs to scheduled caste.
The improvement in statement before
lower Court was made by the prosecutrix,
P.W.2, stating that appellant first asked
her caste and name of her husband then
commit the said offence. This is nothing
else but a totally manufactured evidence.
In the medical report of the prosecutrix,
no injury was found on her private part.
Neither the First Information Report nor
the oral testimony of P.W.1 to P.W.5 even
remotely suggest that the accused knew
the prosecutrix.

Where the prosecution has failed to prove the
offence of rape by either oral or medical
evidence and there is also no evidence to
establish that the accused knew the caste of the
victim from before, then the conviction of the
accused is liable to be set aside. (Para 15, 16,
17, 19, 20, 21)
11 All. Aftaf @ Nafees @ Pappu Vs. State of U.P.
1251
Criminal appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Crl. Appeal No. 204 of 2021 (Vishnu Vs St. of
U.P.) dec. on 28.1.2021

2. Crl. Appeal No.4083 of 2017 (Pintu Gupta Vs
St. of U.P.) dec. on 28.7.2022

3. Ved Prakash Vs St. of Har., JIC 1996 SC 18 (
distinguished on facts)

4. Patan Jamal Vali Vs St. of A.P., 2021 SCC
OnLine SC 343

(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J. & Hon'ble Ajai Tyagi, J.)

1. Heard Sri Rakesh Dubey, learned
counsel for the accused-appellant and Sri
Vikas Goswami, learned A.G.A. for the
State.

2. Non-following of the decision of
Apex Court in Criminal Appeal No.308 of
2022 (Saudan Singh vs. State of U.P.)
decided on 25.2.2022 and non-considering
the case of accused for remission seems to
be the natural administrative conduct of the
officers and the jail authority. We once
again pained to show our anguish.

3. This appeal was listed in the year
2004. Unfortunately, as the order sheet
shows, the matter was listed only after few
years and the delay came to be condoned in
the year 2008. From 2008 till 2022, the
matter was never listed for hearing as is
clear from the order sheet and it was only
after the listing application was filed that
the matter was listed. The lower Court's
records were there in the year 2004 but the
office has not prepared the paper book. As
the matter is pending since long and the
accused-appellant is in jail for more than 21
years with remission, we dispense with the
paper book. We have requested learned
counsels to go through the record. We have
also perused the record.

4. This appeal challenges the
judgment and order dated 23.10.2003
passed by Special Judge (SC/ST Act),
Kanpur Dehat in Special Sessions Trial
No.50 of 2001 (State vs. Aftaf alias Nafees
alias Pappu) wherein the learned Special
Judge has convicted & sentenced accusedappellant, Aftaf alias Nafees alias Pappu,
under Section 376 of Indian Penal Code,
1860 (hereinafter referred to as 'IPC') read
with Section 3 (2) (v) of Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred
to as SC/ST Act) and sentenced him to
imprisonment
for
life
with
fine
of
Rs.5,000/- and, in case of default in
payment of fine, further to under go one
year's simple imprisonment.

5. Brief facts as culled out from the
record are that Kamlesh Kumar, the
husband of prosecutrix, made a complaint
to Police Station Akbarpur, Kanpur Dehat
stating that on 9.2.2001, at about 12.00
noon, when the prosecutrix went to her
field for bringing silage for the cattle, the
accused-appellant, Aftaf alias Nafees alias
Pappu, caught her from behind, knocked
her down and started committing rape on
her. On raising alarm by the prosecutrix,
the informant along with his brother,
Dinesh Kumar who were cutting silage in
the adjacent field reached at the place of
incident where they saw that accused was
committing rape on her. It was alleged that
the prosecutrix sustained injuries, her glass
bangles got broken and the informant, his
brother and one Darogi Lal brought her to
the Police Station. On basis of the written
report, the F.I.R. being Case Crime No. 36
of 2001 under Section 376 of IPC and
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 3 (2) (v) of SC/ST Act came to be
lodged against the accused.

6. After lodging of the F.I.R, the
investigation was moved into motion. The
prosecutrix was got medically examined.
The Investigating Officer, after taking
statements of witnesses, submitted chargesheet against the accused-appellant under
Section 376 of IPC and under Section 3 (2)
(v) of SC/ST Act.

7. The accused was committed to the
Court of Sessions as the case was triable by
the Court of Session. The learned Sessions
Judge framed charges on the accused. The
accused pleaded not guilty and wanted to
be tried.

1
Kamlesh Kumar
PW1
2
Prosecutrix
PW2
3
Dr. Subha Mishra
PW3
4
Maan Singh
PW4
5
Dinesh Kumar
PW5
6
Om Prakash Singh
PW6
7
B. R. Premi
PW7

8. So as to bring home the charge, the
prosecution has examined 7 witnesses who
are as under :

9. In support of ocular version
following documents were filed:

1
F.I.R. & G.D.
Ex.Ka.5
&
Ka.6
2
Written Report
Ex.Ka.1
3
Recovery memo of
glass bangles
Ex. Ka. 7
4
Recovery memo of
petikot
Ex. Ka.2.
5
Medical
Report
of
Prosecutrix
Ex. Ka. 3 &
Ka.4
6
Charge-sheet
Ex. Ka. 12
7
Site Plan with Index
Ex. Ka.8

10. At the end of the trial and after
recording the statement of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Special
Judge
convicted the appellant as mentioned
aforesaid.

11. As far as commission of offence
under Section 3 (2) (v) of SC/ST Act is
concerned, it is submitted by learned
counsel that the F.I.R. nowhere states that
the
injured
belongs
to
a
particular
community. No documentary evidence so
as to prove that the injured belongs to
Scheduled Caste or Scheduled Tribe was
produced
either
before
Investigating
Officer or Sessions Court. No independent
witness
has
been
examined
by
the
prosecution. It is stated by prosecutrix that
she did not know the accused. P.W.1 had
stated that he did not know the accused and
in his cross examination he had denied the
commission of offence and, therefore, no
case is made out for commission of offence
under Section 3 (2) (v) of SC/ST Act and
finding of the learned Special Judge
requires to be upturned.

12. As far as commission of offence
under Section 376 of IPC is concerned, it is
submitted by learned counsel for the
appellant that the accused has been falsely
implicated in the present case. The medical
evidence does not support the prosecution
version as no internal/external injury was
11 All. Aftaf @ Nafees @ Pappu Vs. State of U.P.
1253
found on person of the prosecutrix though
the F.I.R. and medical examination were
prompt. It is further submitted that even
P.W.1, in his cross examination has denied
the commission of rape and the finding of
the Special Judge is based on surmises and
conjectures and requires to be upturn. In
support of his argument, learned counsel
for the appellant has relied on the decision
of this Court in Criminal Appeal No. 204 of
2021 (Vishnu vs. State of U.P.) decided on
28.1.2021 & in Criminal Appeal No.4083
of 2017 (Pintu Gupta vs. State of U.P.)
decided on 28.7.2022 and has contended
that no ingredients of Section (3) (2) (v) of
SC/ST Act & Section 376 of IPC is made
out and, therefore, the conviction is
required to be set aside.

13. Per contra, Sri Vikas Goswami,
learned A.G.A. for the State has submitted
that the conviction of the accused is just
and proper as ingredients of offence under
Section 3 (2) (v) of SC/ST Act and Section
376 are very much there. It is further
submitted by learned A.G.A. that P.W.2,
prosecutrix,
has
stated
that
before
committing the unlawful act, the accused
had asked her name, caste and her
husband's name and, therefore, finding of
the learned Special Judge is just and proper.

14. Before we venture upon to discuss
the evidence and the arguments advanced
by the learned counsel for the parties, it
would be pertinent to discuss Section 3 (2)
(v) of SC/ST Act and Section 375 of IPC
which read as under:

"3. Punishments for offences of
atrocities.--

(1).....................xx...............xx.......

(2) Whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe,--

(i).....................xxx..........

(ii)....................xx...........

(iii)...............xxx...........

(iv)..............xxx...............

(v) commits any offence under the
Indian Penal Code (45 of 1860) punishable
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."

[375. Rape.--A man is said to commit
"rape" who, except in the case hereinafter
excepted, has sexual intercourse with a
woman under circumstances falling under
any of the six following descriptions:--

(First)-- Against her will.

(Secondly)--Without her consent.

(Thirdly)-- With her consent, when her
consent has been obtained by putting her or
any person in whom she is interested in
fear of death or of hurt.

(Fourthly)--With her consent, when the
man knows that he is not her husband, and
that her consent is given because she
believes that he is another man to whom
she is or believes herself to be lawfully
married.

(Fifthly)-- With her consent, when, at
the time of giving such consent, by reason
of unsoundness of mind or intoxication or
the administration by him personally or
through another of any stupefying or
unwholesome substance, she is unable to
understand the nature and consequences of
that to which she gives consent.

(Sixthly)--
With
or
without
her
consent, when she is under sixteen years of
age. Explanation.--Penetration is sufficient
to
constitute
the
sexual
intercourse
necessary to the offence of rape.

(Exception)--Sexual intercourse by a
man with his own wife, the wife not being
under fifteen years of age, is not rape.]
1254 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The aforesaid provisions of law
would now be seen in view of the ocular
version as well as the documentary
evidence of the prosecution witnesses.
P.W.1,
in
his
cross
examination,
categorically mentions that he has not seen
the appellants committing any kind of
sexual intercourse with the prosecutrix.
P.W.3, whose oral testimony has been
considered, also categorically states that
she cannot conclusively opine that whether
there was commission of sexual intercourse
against the will or against the consent of
the prosecutrix. None of the ingredients,
according to us, has been proved by the
prosecutrix.

16. The evidence on record highlights
the theory of commission of rape on the
ground that the prosecutrix belong to a
particular community. Neither the F.I.R.
nor the oral testimony have been remotely
suggests the same. So as to attract the
provisions of Section 375 read with Section
376 of IPC and Section 3 (2) (v) of SC/ST
Act, ingredients of the said offence has to
be proved.

17. P.W., Kamlesh Kumar, who had
lodged the F.I.R. is the husband of
prosecutrix who has stated that the accused
appellant professes muslim religion. The
appellant is the resident of a place which is 8
to 9 kms away from the house of the
prosecutrix. The most important aspect is that
he does not know the accused which goes to
show that the accused would not be knowing
the caste of the prosecutrix. The accident
occurred on 9.2.2001 in broad day light at
about 12.00 noon. The F.I.R. and evidence go
to show that the accused caught hold the
prosecutrix from behind and knocked her
down. P.W.1, P.W.5 & Darogi Lal were in the
nearby field. According to P.W.1, in resisting,
the prosecutrix suffered injuries and her
bangles got broken. The report was got
lodged by one Omkan Singh and the
informant has signed on the same. It is an
admitted position of fact that broken bangles
were found from the so called place of
occurrence. But when we read the evidence
of P.W.2, the prosecutrix, it shows that she
was being dragged and when she shouted, her
husband and one Darogi Lal came there to
save her. According to prosecutrix, the
accused ran away and after lot of running
around he could be caught. This is a
statement which is opposite to the statement
made by P.W.1 as in his statement and the
statement of P.W.5, there is no corroboration
to this statement. She also mentions that she
does not know the accused nor the accused
knows her. They are the witnesses of facts
who have given different versions. Evidence
of P.W.2, prosecutrix, goes to show that at the
time of occurrence, first of all, the accused
caught her from behind and asked her caste
and name of her husband. It is highly
unbelievable that person who is going to
commit grave offence like rape would ask
caste and name of husband of prosecutrix
before commission of crime. Hence, there is
no evidence which goes to show that the
offence by the appellant is committed on the
ground that prosecutrix belongs to scheduled
caste. The improvement in statement before
lower Court was made by the prosecutrix,
P.W.2, stating that appellant first asked her
caste and name of her husband then commit
the said offence. This is nothing else but a
totally manufactured evidence.

18. As per prosecution version, on
hearing hue and cry of the prosecutrix, her
husband, brother-in-law and one Darogi Lal
reached at the spot but Darogi Lal who was
independent witness has not been produced.

19. We now go to the depositions of
P.W.3, the doctor, the medical examination
11 All. Aftaf @ Nafees @ Pappu Vs. State of U.P.
1255
of prosecutrix was conducted by P.W.3. In
the medical report of the prosecutrix, no
injury was found on her private part. Two
slides were taken from the discharge of
vagina and sent for examination. Pathology
report
received
by
the
doctor
and
supplementary report was prepared. In
supplementary report, no living or dead
spermatozoa was found which shatters the
prosecution case with regard to commission
of rape. Neither dead nor live spermatozoa
was found. She was having fetus of five
months.

20. This judgment shows that the
learned Sessions Judge has convicted the
accused-appellant where there was no
evidence for commission of offence under
Section 3 (2) (v) of The Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989. Neither the First
Information Report nor the oral testimony
of P.W.1 to P.W.5 even remotely suggest
that the accused knew the prosecutrix. It is
not worth believing that a person who want
to commit sexual offence would enquire
from the prosecutrix her name and her caste
and then commit the unlawful act. P.W. 1
who is the husband of the prosecutrix has
flatly denied the commission of offence in
his cross examination though he was in the
adjacent field. He had also stated that he
did not know
the
accused-appellant.
Therefore, the evidence of P.W.5 is wholly
unreliable. The judgment relied by the
prosecution before the Court below namely
Ved Prakash vs. State of Haryana, JIC
1996 SC 18 cannot apply to the facts of this
case.

21. The evidence of doctor and the
medical report does not show presence of
any spermatozoa though the prosecutrix
after lodging of F.I.R. was directly taken
from
police
station
for
medical
examination. No injury was found on her
private
part.
In
medical
report
of
prosecutrix, some little abrasions were
found on her hand and knee but it has been
specifically mentioned in the medical
report that these abrasions were three to
four
days
old
while
the
medical
examination of prosecution was conducted
on the very next day of the occurrence,
hence, these abrasions cannot be linked
with the alleged occurrence of this case. It
was also stated in her testimony by
prosecutrix that at the time of alleged
occurrence, the appellant threw her on the
ground and at the time of commission of
rape she was sliding herself along with the
ground but not even a single injury has
been found on the back of the prosecutrix.
The learned judge, unfortunately, no where
has discussed about the ingredients of
Section 375 of IPC. Rather, he has misread
the evidence of P.W.3. The learned Sessions
Judge has gone on the assumption that as
saree was worn by the prosecutrix, there
may not be any injuries. The learned
Sessions Judge has also gone on the
assumption that as she was married lady
and she was carrying a child, there is no
necessity of there being any kind of injury
sustained by her. The learned Session Judge
has considered the fact that spermatozoa
may or may not be found. The important
aspects are non founding of spermatozoa
and non finding of any kind of injuries
which would permit us to upturn the
judgment of learned Sessions Judge. There
is no finding as far as commission of
offence under Section 3 (2) (v) of SC/ST
Act. Only on the ground that the
prosecutrix and her family members belong
to a particular community, can it be said
that the offence has been committed? The
answer is, No. We are also fortified in our
view by the decision of the Apex Court in
Patan Jamal Vali vs. State of Andhra
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
Pradesh, 2021 SCC OnLine SC 343,
wherein the Apex Court has held as under :

"58. The issue as to whether the
offence was committed against a person on
the ground that such person is a member of
a SC or ST or such property belongs to
such member is to be established by the
prosecution on the basis of the evidence at
the trial. We agree with the Sessions Judge
that the prosecution's case would not fail
merely because PW1 did not mention in her
statement to the police that the offence was
committed against her daughter because
she was a Scheduled Caste woman.
However, there is no separate evidence led
by the prosecution to show that the accused
committed the offence on the basis of the
caste identity of PW2. While it would be
reasonable to presume that the accused
knew the caste of PW2 since village
communities are tightly knit and the
accused was also an acquaintance of
PW2's family, the knowledge by itself
cannot be said to be the basis of the
commission of offence, having regard to the
language of Section 3(2)(v) as it stood at
the time when the offence in the present
case was committed. As we have discussed
above, due to the intersectional nature of
oppression PW2 faces, it becomes difficult
to establish what led to the commission of
offence - whether it was her caste, gender
or disability. This highlights the limitation
of a provision where causation of a
wrongful act arises from a single ground or
what we refer to as the single axis model.

59 It is pertinent to mention that
Section
3(2)(v)was
amended
by
the
Scheduled Castes and theScheduled Tribes
(Prevention of Atrocities) Amendment Act,
2015, which came into effect on 26 January
2016. The words "on the ground of"
underSection 3(2)(v) have been substituted
with "knowing that such person is a
member of a Scheduled Caste or Scheduled
Tribe". This has decreased the threshold of
proving that a crime was committed on the
basis of the caste identity to a threshold
where mere knowledge is sufficient to
sustain a conviction.Section 8which deals
with presumptions as to offences was also
amended to include clause (c) to provide
that if the accused was acquainted with the
victim or his family, the court shall presume
that the accused was aware of the caste or
tribal identity of the victim unless proved
otherwise. The amendedSection 8reads as
follows:

"8. Presumption as to offences. - In a
prosecution for an offence under this
Chapter, if it is proved that

(a)
the
accused
rendered
[any
financial assistance in relation to the
offences committed by a person accused
of],
or
reasonably
suspected
of,
committing, an offence under this Chapter,
the Special Court shall presume, unless the
contrary is proved, that such person had
abetted the offence;

(b) a group of persons committed an
offence under this Chapter and if it is
proved that the offence committed was a
sequel to any existing dispute regarding
land or any other matter, it shall be
presumed that the offence was committed in
furtherance of the common intention or in
prosecution of the common object.

[(c) the accused was having personal
knowledge of the victim or his family, the
Court shall presume that the accused was
aware of the caste or tribal identity of the
victim, unless the contrary is proved.]"

60 The Parliament Standing Committee
Report on Atrocities Against Women and
Children has observed that, "high acquittal rate
motivates and boosts the confidence of
dominant and powerful communities for
continued perpetration" and recommends
inclusion of provisions of SC &ST Act while
11 All. Ashok Yadav Vs. State of U.P.
1257
registering cases of gendered violence against
women from SC & ST communities53.
However, as we have noted, one of the ways in
which offences against SC & ST women fall
through the cracks is due to the evidentiary
burden that becomes almost impossible to meet
in cases of intersectional oppression. This is
especially the case when courts tend to read the
requirement of "on the ground" underSection
3(2)(v)as "only on the ground of". The current
regime under the SC &ST Act, post the
amendment, has facilitated the conduct of an
inter-sectional analysis under the Act by
replacing
the
causation
requirement
underSection 3(2)(v)of the Act with a
knowledge requirement making the regime
sensitive to the kind of evidence that is likely to
be generated in cases such as these. 61
However, sinceSection 3(2)(v) was amended
and Clause (c) ofSection 8was inserted by Act 1
of 2016 with effect from 26 January 2016 these
amendments would not be applicable to the
case at hand. The offence in the present case
has taken place before the amendment, on 31
March 2011. Therefore, we hold that the
evidence in the present case does not establish
that the offence in the present case was
committed on the ground that such person is a
member of a SC or ST. The conviction
underSection 3(2)(v)would consequently have
to be set aside."

22. The decisions cited by learned counsel
for the appellant in Visnu (Supra) and in
Pintu Gupta (Supra) will also apply to the
facts of this case. This is a similar case to
Vishnu
(Supra)
where
the
man
was
languishing in jail for non commission of
offence for which he was punished.

23 We, therefore, hold that no case for
commission of offence under Section 376 read
with Section 3 (2) (v) of IPC is made out. The
judgment and order impugned to this appeal is
set aside. The accused-appellant is acquitted
from the charges leveled against him. We direct
the jail authority concerned to set the accusedappellant free, if not warranted in any other
offence.

24. Record and proceedings be sent back
to the Trial Court forthwith.

25. This Court is thankful to both the
learned advocate for ably assisting the Court
and getting this old matter decided.

26. The office has not prepared the paper
book in this matter though the record was very
much there in the year 2004. We, by this
omnibus direction, direct Registrar (Listing) to
impress upon the officer concerned to follow
the decision of this Court in Vishnu (Supra)
which are yet not being followed as even after
2021, the matters are not being listed. Even this
matter has been listed only after the counsel for
the appellant has filed listing application as the
accused is in jail for more than 19 years (21
years with remission). His case has not been
considered for remission by the jail authorities
though 14 years of incarceration is over and
there are directions of the Apex Court and this
Court. Even if there is no direction of the
Courts, under Section 433 of Cr.P.C. the
authorities concerned are under an obligation to
consider the case of the accused for remission.
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(2022) 11 ILRA 1257
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.11.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Crl. Appl. No. 5277 of 2013

Ashok Yadav ...Appellant
Versus
State of U.P. ...Opp. Party