The Allahabad High Court recently set aside the conviction of man jailed for 20 years on allegations of rape, criminal intimidation and charges under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Vishnu v. State of UP).
In doing so, the Court also expressed anguish over the sorry state of affairs that contributed to the man’s prolonged imprisonment, including the government’s failure to recommend his case for remission of sentence or to commute the sentence under Sections 432-434 of the Code of Criminal Procedure (CrPC).
The Court was dealing with the case of one Vishnu (appellant), who had been in jail since September 16, 2000. On January 28, 2021, his appeal challenging a 2003 Sessions Court conviction was allowed by the High Court.
The Bench of Justices Dr Kaushal Jayendra Thaker and Gautam Chowdhary observed,
“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.”
The Court proceeded to take critical note that the Uttar Pradesh government had not send the matter to the Magistrate for revaluation even after the appellant underwent 14 years of imprisonment, thereby violating the mandate under Sections 432-433 of the CrPC which deal with the remission, suspension, and commutation of offences.
“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… His case should have been considered but has not been considered…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,” the order said.
In view of this “sorry state of affairs“, the Court requested the Registrar (Listing) through the Registrar General to place the matter before the Chief Justice so that matters involving persons who have been in jail for over 10-14 years may have their cases listed and their appeals heard by the High Court.
A copy of the judgment is also to be sent to the State’s Law Secretary so that District Magistrates in Uttar Pradesh may be urged to re-evaluate cases for remission after 14 years of imprisonment, in line with Sections 432-433 of the CrPC, even if appeals are pending in the High Court.
Why the appellant’s conviction was set aside.
In the instant case, the Court set aside the appellant’s conviction in view of the following factors:
- The medical examination, no sperm, or injuries (both external and internal) were found on the victim, who was estimated to be 15-16 years of age and 5 months’ pregnant at the time. The victim complained of pain during internal examination, but no fresh injury was seen inside or outside the private part. No definite opinion about rape was given.
- The trial court had brushed aside the fact that FIR was lodged three days later.
- 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.
- There were contradictions in the examination-in-chief as well as cross examination of all three witnesses in the case i.e., the prosecutrix, her father-in-law and her husband. Inter alia, the High Court noted, “In examination-in-chief he(father-in-law of the victim) 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.“
- The trial judge materially erred as he did not discuss what evidence was there to show that the act was committed becauseof the caste of the prosecutrix.
In this backdrop, the Court ordered the release of the appellant, finding that:
“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.”
Advocate Shweta Singh Rana, appointed by the State Legal Services Authority to represent the appellant, assisted the Court as Amicus Curiae. Government Advocate Rupak Chaubey appeared for the State.