The Allahabad High Court, the Bench of Justices Dr Kaushal Jayendra Thaker and Gautam Chowdhary, in the matter of “Vishnu Vs State of UP”, acquitted the man who was in jail for more than 20 years in a false rape case.
“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 bench also said that ,”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”.
The appellant was convicted under Section 376 IPC and sentenced to imprisonment for a period of ten years; 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 and sentenced to imprisonment for life; and he was further convicted under Section 506 IPC and sentenced to undergo rigorous imprisonment under Section 506 IPC.
Learned counsel for appellant submitted that, the victim woman was belonging to Scheduled Caste Community and she has not made any specific allegations against the appellant which attracts the Section 3(1)(xii) and 3(2)(v) of S.C./S.T. Act, 1989. Pertaining to act, the learned counsel relied in the case of Hitesh Verma Vs. State of Uttarakhand, 2020.
The counsel for appellant contended that “prosecutrix has roped in the accused with ulterior motive i.e. land dispute between her family members and the accused.”
Learned counsel for appellant referred the judgment in Sadashiv Ramrao Hadbe Vs. State of Maharashtra case, according to which, the court should be careful in accepting “sole testimony of the prosecutrix”.
“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 bench said that, the court is unable to convince themselves by the the submission made of the learned AGA for State, that prosecutrix is victim of rape and therefore the appellant should not be leniently dealt with.
The bench observed that
- the prosecutrix conveyed that she has dictated the FIR outside the Police Station while in her cross examination she accepted that her father-in-law dictated the report to the police.
- the prosecutrix has narrated that “the accused had gauged her for a period of ten minutes”, but she did not convey this to her husband immediately who was in the fields but she conveyed to her father-in-law next day.
- in her medical report, no external or internal injury was found, no evidence of sperm, her age was accessed 15 to 16 years according to her physical appearance. No definite opinion about rape was given by the lady doctor.
- The victim complained of pain during internal examination but no fresh injury was seen inside or outside the private part.
- 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.
The bench observing that the case was lodged three days later to the incident, so decided to go go through the merits of the matter.
The bench also refer the Ganesan Versus State case, according to which, if the conviction is based on sole testimony of the victim then prosecutrix testimony must be trustworthy and reliable, and stated that “prosecutrix cannot be said to be that of a sterling witness”.
“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 bench also observed that “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.”
The bench observed several contradictions in the examination-in-chief as well as cross examination.
The bench said that, prosecutrix oral testimony should be confirmed in her medical examinations.
“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”
Over the conviction of the appellant under the S.C./S.T. Act, the bench said that trial court has made an error.
“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 bench freed the appellant from the charges.
“The accused appellant, if not warranted in any other case, be set free forthwith.”
The bench seeing the “sorry State of Affairs”, requsted the Registrar for periodical listing of matters for those who are in jail for more than 10 or 14 years, where the appeals are pending.
The bench also directed the District Magistrates of all the districts in the State of U.P. to “reevaluate the cases for remission after 14 years of incarceration”
Bar and Bench first reported the matter.
CRIMINAL APPEAL No.-204 of 2021 (From Jail);(Defective Appeal No.386 of 2005); Order Date:28.1.2021