# Vishnu (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 792
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-28
- **Case number:** Criminal Appeal No. 204 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishnu-in-jail-v-state-of-u-p-46811
- **Pages:** 13

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 376,506 &
Scheduled Castes and Scheduled Tribes
(Prevention
of
Atrocities)
Act,1989Sections
3(1)(xii)
&
3(2)(v)-rape
is
committed alleged by the prosecutrix -
inordinate delay in FIR-no injury found -
no
corroboration
in
the
prosecution
version
and
medical
evidence-doctor
opined
that
no
signs
of
forcible
intercourse-several contradictions were
found in examination-in-chief as well as
cross examination of all three witnessesmotive on the part of the complainant that
there was land dispute between the
parties-for maintaining the conviction u/s
376 IPC, medical evidence has to be in
conformity
with
the
oral
testimonyprosecutrix
belonged
to
the
SC/ST
community and accused falling in upper
caste-Learned Trial Judge has not given
any finding as to how commission of
offence u/s 376 IPC made out-Accused
acquitted.(Para 1 to 43)

B. The accused remained in jail for 20
years. Appeal was preferred through jail.
Even after 14 years of incarceration, the
State did not think of exercising its power
for commutation of sentence of life
imprisonment. Power of Governor under
Article 161 of the constitution are not
exercised while Section 433 and 434 of
the Cr.P.C. enjoins a duty upon the State
Government
as
well
as
Central
Government to commute the sentence as
mentioned in the said section. (Para 46 to
50)

The appeal is allowed. ( E-5)

List of Cases cited:-

## Text

_Characters 0–39,940 of 41,575. This is a partial read: ask again with offset=39940 for what follows._

792 INDIAN LAW REPORTS ALLAHABAD SERIES
express words or necessary implication.
There is a strong presumption against
construing a grant of legislative, judicial or
disciplinary power as impliedly authorising
sub-delegation; and the same may be said
of any power to the exercise of which the
designated body should address its own
mind."

15. In terms of aforesaid, it is clear
that the provisions of Regulation 68(iv)
of the Service Regulations of 1989 have
been completely ignored with regard to
petitioner
and
as
such
the
entire
proceedings are clearly vitiated on that
account.

16. Even otherwise, it is clear from
a perusal of impugned orders that the
entire enquiry proceedings have been
concluded treating the charges levelled
against the delinquent employee to be
true only on account of the fact that no
reply was submitted by him within the
time stipulated. Such a procedure is
totally contrary to the law enunciated by
Hon'ble the Supreme Court as referred to
herein above and clearly are against the
principles of natural justice as were
required to be followed by the enquiry
officer in terms of Regulation 68.

17. Considering the aforesaid
aspects, it is clear that the entire
proceedings against the petitioner were
clearly vitiated for non-compliance of
provisions of Regulation 68 of the
Service Regulations of 1989.

18. Consequently, a writ in the
nature of Certiorari is issued quashing the
punishment order dated 21.07.2020, the
enquiry report dated 13.12.2019 and the
charge sheet dated 17.06.2019.

19. Since it is admitted between the
parties and as specifically pleaded in the
counter affidavit that the Secretary of the
Council is the appointing authority of the
petitioner, the matter is remitted to the
said authority with a further writ in the
nature
of
Mandamus
to
first
pass
appropriate orders in consonance with
Regulation
68(iv)
and
to
take
consequential action in pursuance thereof
within a period of six weeks from the
date a copy of this order is served upon
the said authority. In case the said
authority
reaches
a
prima
facie
satisfaction
that
a
full
fledged
departmental enquiry is required to be
held the said enquiry proceedings shall be
completed within a period of six months
form the date the petitioner is required as
a last date to submit his reply.

20. Consequently, the writ petition
stands allowed in terms of aforesaid.
----------
(2021)02ILR A792
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 204 of 2021
(Defective Appeal No. 386 of 2005)

Vishnu ....Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Shweta Singh Rana (appointed by State
Service Legal Authority), Kamini Pandey, Sri
Anand Pandey
2 All. Vishnu Vs. State of U.P.
793
Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 376,506 &
Scheduled Castes and Scheduled Tribes
(Prevention
of
Atrocities)
Act,1989Sections
3(1)(xii)
&
3(2)(v)-rape
is
committed alleged by the prosecutrix -
inordinate delay in FIR-no injury found -
no
corroboration
in
the
prosecution
version
and
medical
evidence-doctor
opined
that
no
signs
of
forcible
intercourse-several contradictions were
found in examination-in-chief as well as
cross examination of all three witnessesmotive on the part of the complainant that
there was land dispute between the
parties-for maintaining the conviction u/s
376 IPC, medical evidence has to be in
conformity
with
the
oral
testimonyprosecutrix
belonged
to
the
SC/ST
community and accused falling in upper
caste-Learned Trial Judge has not given
any finding as to how commission of
offence u/s 376 IPC made out-Accused
acquitted.(Para 1 to 43)

B. The accused remained in jail for 20
years. Appeal was preferred through jail.
Even after 14 years of incarceration, the
State did not think of exercising its power
for commutation of sentence of life
imprisonment. Power of Governor under
Article 161 of the constitution are not
exercised while Section 433 and 434 of
the Cr.P.C. enjoins a duty upon the State
Government
as
well
as
Central
Government to commute the sentence as
mentioned in the said section. (Para 46 to
50)

The appeal is allowed. ( E-5)

List of Cases cited:-

1. Sadashiv Ramrao Hadbe Vs St. of Mah.,
(2006) 10 SCC 92

2. Manne Siddaiah @ Siddiramulu Vs St. of A.P.
(2000) 2 Alld (Cri.)
3. Hitesh Verma Vs St. of U.K. & anr. (2020)
10 SCC 710

4. Rafiq Vs St. of U.P.,(1981) AIR SC Page 559

5. Nawab Khan Vs St. (1990) Cri.L.J Pg. 1179

6. Bharvada Bhogin Bhai Hirji Bhai Vs St. of
Guj.,(1983) AIR SC pg.753

7. Ganesan Vs St. Reprted by its Insptr. of
Police Crl.Appl. No. 680 of 2020 (Arising from
S.L.P. (Crl. ) No . 4976 of 2020)

8. Bhaiyamiyan @ Jardar Khan & anr. Vs St. of
M. P.( 2011) SCW 3104 Pudav Bhai Anjana Patel
Vs St. of Guj. Crl. Appl. No. 74 of 2006

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

1. 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
794 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 2
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
2 All. Vishnu Vs. State of U.P.
795
6.
Charge Sheet ( Mool)
Ext.
Ka-6
7.
Site Plan with Index
Ext.
Ka-5

8. Heard learned Amicus Curiae Miss
Shweta Singh Rana for the appellant, Sri
Rupak Chaubey, learned AGA for the State
and also perused the record.

9. It is submitted by the counsel for the
appellant that as far as commission of offence
under Section 3(1)(xii) and 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.

10. Learned counsel for appellant has
relied on the following decisions of the Apex
Court rendered in the case of Sadashiv
Ramrao Hadbe Vs. State of Maharashtra,
2006(10)SCC 92 and the judgment of High
Court of Andhra Pradesh in the case of
Manne Siddaiah @ Siddiramulu Vs. State
of Andhra Pradesh, 2000(2) 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.

11. 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.

12. Learned counsel for the appellant
has relied on the judgment of Sadashiv
Ramrao Hadbe Vs. State of Maharashtra
(supra) and 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
(supra) rendered by Andhra Pradesh High
Court, though it is a judgment of Single
Bench, i.e. by Justice B. Sudershan Reddy
(as he then was). Learned counsel has
relied on findings returned in paragraphs
14, 15 and 16 of the said judgment, which
lay down as follows :-

"14. In nutshell the version given
by P.W.5 is not supported by even P.Ws. 1
and 2. P.W.1 in his evidence in categorical
terms states that he caught hold of the
appellant herein as his wife informed him
that the appellant has raped her. P.W.5 in
her evidence does not state that she has
informed P.W.1 about the rape at any time.
These
major
inconsistencies
and
contradictions in the evidence of material
witnesses - P.Ws. 1, 2 and 5 create a lot of
suspicion and doubt about the prosecution
case. Added to that, P.W.10 - the Civil
Assistant Surgeon who examined P.W.5, in
796 INDIAN LAW REPORTS ALLAHABAD SERIES
her evidence clearly states that she did not
find any external injuries on the body of
P.W.5. She has also not noticed any semen
and spermatozoa in the vaginal slides.

15.

In
the
aforesaid
circumstances, it would not be safe to
convict the appellant herein on mere
suspicion.
The
inconsistencies
and
contradictions noticed above are fatal to
the case of the prosecution and create any
amount of doubt. Obviously, it is the
appellant who is entitled for the benefit of
doubt.

16. In the aforesaid circumstances,
I find it difficult to sustain the conviction of
the
appellant
herein
for
the
offence
Under Section 3(1) (xii) and Section 3(2) (v)
of the Act read with Section 376 of the Code.
The conviction as well as the sentence of the
appellant herein is set aside."

13. Learned counsel for appellant
presses into service the judgment in the case
of Sadashiv Ramrao Hadbe Vs. State of
Maharashtra (supra) more particularly
observations in paras 9, 10, 11 of the said
judgment, which are verbatim reproduced as
follows
 :-

"9. It is true that in a rape case the
accused could be convicted on the sole
testimony of the prosecutrix, if it is capable of
inspiring of confidence in the mind of the
court. If the version given by the prosecutrix
is unsupported by any medical evidence or
the whole surrounding circumstances are
highly improbable and belie the case set up
by the prosecutrix, the court shall not act on
the solitary evidence of the prosecutrix. The
courts shall be extremely careful in accepting
the sole testimony of the prosecutrix when the
entire case is improbable and unlikely to
happen.

10. In the present case there were
so many persons in the clinic and it is highly
improbable the appellant would have made a
sexual assault on the patient who came for
examination when large number of persons
were present in the near vicinity. It is also
highly improbable that the prosecutrix could
not make any noise or get out of the room
without being assaulted by the doctor as she
was an able bodied person of 20 years of age
with ordinary physique. The absence of
injuries on the body improbablise the
prosecution version.

11. The counsel who appeared for
the State submitted that the presence of semen
stains on the undergarments of the appellant
and also semen stains found on her petticot
and
her
sari
would
probablise
the
prosecution version and could have been a
sexual intercourse of the prosecutrix.

12. It is true that the petticot and
the underwear allegedly worn by the
appellant had some semen but that by itself
is not sufficient to treat that the appellant
had sexual intercourse with the prosecutrix.
That would only cause some suspicion on
the conduct of the appellant but not
sufficient to prove that the case, as alleged
by the prosecution."

14. Learned counsel for the appellant
has also relied on the latest decision of
Apex Court in the case of Hitesh Verma
Vs. State of Uttarakhand & another,
2020(10)SCC 710, pertaining to Scheduled
Castes and Scheduled Tribes ( Prevention
of Atrocities) Act, 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
2 All. Vishnu Vs. State of U.P.
797
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.

17. PW-1, in her ocular version, has
conveyed that she dictated the FIR while she
did not go inside the police station but she
was sitting out side the Police Station
whereas, in her cross examination she
accepted that it was her father-in-law who
dictated the report to the police station officer
she deposed that prosecutrix belongs to the
community known as Dhobi community
which is enumerated as scheduled castes the
matter of fact which was known to the
accused. The prosecutrix in her oral
testimony has narrated the version of forcible
sex on her and that the accused had gauged
her for a period of ten minutes, she did not
convey this to anybody because of threats
given by the accused. In her cross
examination, she conveyed that her father-inlaw had dictated the report. If the police did
not mention in the FIR that the accused had
done the illegal act she could not possibly
know why the same is not reflected in the
report. The report was given by her father-inlaw. She had one daughter who was two
years of age, according to her, her marriage
had taken place when she was 13 years of age
and she was running 17 years of age at the
time of deposition. She denied the fact that
fields of accused was in the way to her fields
and they used to visit the place of each other
but accepted that she knew the accused by
name.

18. According to the prosecutrix, it was
rainy season when incident occurred, she was
thrashed in the bushes and according to her
the accused had committed bad act with her
for ten minutes. She did not convey the
incident to her husband immediately who
was in the fields but on next day, she
conveyed the same to her father-in-law.

19. PW-2 is the father-in-law of the
prosecutrix. It was he who was the person
whom the prosecutrix had conveyed about
the incident. In his cross examination, he
stated that marriage of the prosecutrix with
his son had taken place for about 10-12 years
ago. According to him his field was very far
from that of the accused and there was no
property dispute between PW-2 and the father
of the accused. He has admitted that he has
received
a
sum
of
Rs.25000/-
from
Government.

20. PW-3 is the husband who has
deposed on oath that his wife was going
to the field to give lunch to his father and
when she reached at the place of incident,
accused was present there and he
thrashed her in the bushes and did all bad
work.

21. PW-4 and 5 are the medical
Officer. PW-6 who is the Officer who had
conducted the investigation.

22. We now decide to sift the
evidence threadbare of the prosecution
story, the evidence laid and discussed
before the trial court and appreciated as
by the learned Trial Judge.
798 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Provision of Section 3(1)(xii) 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;"

24. 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 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;

25. Provision of Section 376 I.P.C.
read as follows :

"376. Punishment for rape.--

(1) Whoever, except in the cases
provided for by sub-section (2), commits 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 for a term
of less than seven years.

(2) Whoever,--

(a) being a police officer commits
rape--

(i) within the limits of the police
station to which he is appointed; 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 institution takes advantage of his
official position and commits rape on any
inmate of such jail, remand home, place or
institution; or

(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
2 All. Vishnu Vs. State of U.P.
799

(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 for
neglected woman or children or a widows'
home or by any other name, which is
established and maintained for the reception
and care of woman or children. Explanation
3.--"Hospital" means the precincts of the
hospital and includes the precincts of any
institution for the reception and treatment of
persons during convalescence or of persons
requiring medical attention or rehabilitation."

26. In respect of the victim, the doctor
in medical report has opined as under :-

"In the x-Ray of both wrist A.P., all
eight carpal bones were found present. The
lower epiphyses of both wrist joints have not
fused. In the x-Ray of both elbow joints, all
the bony epiphyses around both elbow joints
had fused

In her supplementary report, lady
doctor opined that no spermatozoa was seen
by her. According to physical appearance,
age of the prosecutrix was 15 to 16 years. No
definite opinion about rape was given"

27. The evidence as discussed by
learned Judge shows that the mere fact that
no external marks of injury was found by
itself would not throw the testimony of the
prosecutrix over board as it has been found
that the prosecutrix had washed out all the
tainted cloths worn at the time of occurrence
as she was an illiterate lady. The learned
Judge brushed aside the fact that report was
lodged three days later. We also do not give
any credence to that fact and would like to go
through the merits of the matter.

28. As far as the commission of
offence
under
Section
376
IPC
is
concerned, the learned Judge has relied on
the judgments of (1) Rafiq Versus State of
U.P., AIR 1981 SC page 559, (2) Nawab
Khan Versus State, 1990 Cri.L.J. Page
1179 and the judgment in (3) Bharvada
Bhogin Bhai Hirji Bhai Versus State of
Gujarat, AIR 1983 SC page 753. The
accused has not sought benefit of Section
155(4) of Evidence Act.

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.
680 of 2020 ( Arising from S.L.P. (
Criminal ) No.4976 of 2020) 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
800 INDIAN LAW REPORTS ALLAHABAD SERIES
medical evidence on evaluation belies the
fact that any case is made out against the
accused.

30. 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.

31. 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. All the bony epiphyses
around both elbow joints were fused. In the
supplementary report, the docotr opined that
no spermatozoa was seen by her and
according to the physical appearance, age of
the victim was appearing to be 15 to 16 years
and no definite opinion about rape could be
given.

32. We find one more fact that despite
allegation that rape is committed as alleged
by the prosecutrix, there are no injuries on the
private part of the lady, who is a fully grown
up lady and who was pregnant and is said to
have been threshed. Further, there was a
motive on the part of complainant that there
was land dispute between the parties. In
statement of prosecutrix in her cross
examination on 23.5.2002, she stated that it
was her husband and father-in-law, who had
lodged the compliant. Thereafter, learned
Judge closed the cross examination of PW-1
and recorded it further on 24.5.2002. The
First Information Report is also belatedly
lodged by three days is the submission of the
counsel Amicus Curiae appointed by High
Court.

33. As far as the medical evidence is
concerned, there are three emerging facts.
Firstly, no injury was found on the person of
the victim. We are not mentioning that there
must be any corroboration in the prosecution
version and medical evidence. The judgment
of the Apex Court rendered in the case of
Bharvada Bhogin Bhai Hirji Bhai Versus
State of Gujarat, AIR 1983 SCC page 753,
which is a classical case reported way back in
the year 1983, on which reliance is placed by
the learned Session Judge would not be
helpful to the prosecution. The medical
evidence should show some semblance of
forcible intercourse, even if we go as per the
version of the prosecutrix that the accused
had gagged her mouth for ten minutes and
had thrashed her on ground, there would have
been some injuries to the fully grown lady on
the basis of the body.

34. In our finding, the medical
evidence goes to show that doctor did not
find any sperm. The doctor categorically
opined that no signs of forcible sexual
intercourse were found. This was also
based on the finding that there were no
internal injuries on the lady who was grown
up lady.

35. The factual data also goes to show
that there are several contradictions in the
2 All. Vishnu Vs. State of U.P.
801
examination-in-chief as well as cross
examination of all three witnesses. In her
examination-in-chief,
she
states
that
incident occurred at about 2:00 p.m. but
nowhere in her ocular version or the FIR,
she has mentioned that she was going to the
fields with lunch for her father-in-law. This
statement was made for the first time in the
ocular version of the husband of the
prosecutrix i.e. PW-3 and that it was fatherin-law who narrated incident to the police
authority. The father-in-law as PW-2 in his
testimony states that he was told about the
incident by her daughter-in-law ( Bahu) 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 absent.

36. 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 from the
provision of section 375 read with Section
376 of IPC.

37. The judgment relied on by the
learned Amicus Curiae for the appellant
will also not permit us to concur with the
judgment impugned of the learned Trial
Judge where perversity has crept in.
Learned Trial Judge has not given any
finding as to fact as to how commission of
offence under Section 376 IPC was made
out in the present case.

38. Section 3(2)(v) 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
802 INDIAN LAW REPORTS ALLAHABAD SERIES
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.74 of 2006 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 Thaker (as
he then was).

39. Learned Judge comes to the
conclusion that as the prosecutrix belonged to
community falling in the scheduled caste and
the appellant falling in upper caste the
provision of SC/ST Act are attracted in the
present case.

40. While perusing the entire evidence
beginning from FIR to the statements of
PWs-1, 2 and 3 we do not find that
commission of offence was there because of
the fact that the prosecutrix belonged to a
certain community.

41. Site Plan with Index The learned
Judge further has not put any question in the
statement recorded under Section 313 of the
accused relating to rape or statement which is
against him.

42. In view of the facts and evidence on
record, we are convinced that the accused has
been wrongly convicted, hence, the judgment
and order impugned is reversed and the
accused is acquitted. The accused appellant,
if not warranted in any other case, be set free
forthwith.

43. Appeal is allowed accordingly.

44. We are thankful to learned Amicus
Curiae appointed by Legal Services Authority
who shall be paid all her dues as are
admissible. We are even thankful to learned
AGA for the State who has ably assisted the
Court.

45. We find that in the State of U.P.
even after 14 years of incarceration does not
even send the matter to the Magistrate for
reevaluation the cases for remission as per
mandate of Sections 432 and 433 of Cr.P.C.
and as held by Apex Court in catena of
decisions even if appeals are pending in the
High Court. The accused in present case is in
jail since 2000.

46. Sections 433 and 434 of the Cr.P.C.
read as follows:-

"Section 433. Power to commute
sentence. The appropriate Government may,
without the consent of the person sentenced,
commute-

(a) a 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;

(d) 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."
2 All. Vishnu Vs. State of U.P.
803

47. 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.

49. 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 appeals.

50. 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.

51. Seeing this sorry State of Affairs,
we request the Registrar (Listing) through
804 INDIAN LAW REPORTS ALLAHABAD SERIES
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 appeals.

52. Site Plan with Index 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 appeals are pending in the
High Court.
----------
(2021)02ILR A804
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 1850 of 2014

Akeela @ Sanno Anneta & Anr.
 ....Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Deepak K. Jaiswal, Mary Puncha (Sheeb
Jose), Sri Mohd. Kalim

Counsel for the Opposite Party:
 A.G.A.

A.