Allahabad High Court sets free rape convict languishing in jail from past 21 years; Showed anguish on authorities for notconsidering him for remission

   

Allahabad High Court: In an appeal against the judgment passed by Special Judge convicting the accused under Section 376 of Penal Code, 1860 (‘IPC’) read with Section 3(2)(v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’) and sentencing him to life imprisonment with fine, the division bench of Kaushal Jayendra Thaker and Ajai Tyagi, JJ. while acquitting the accused held that no case for commission of offence under Section 376 read with Section 3(2)(v) of IPC is made out, as to attract these provisions, the ingredients of the said offence must be proved. Thus, the Court set aside the impugned judgment and directed the jail authority to set the accused free.

The Court noted that the disobedience to the Court’s order in Saudan Singh v. State of U.P., 2021 SCC OnLine SC 3259 and not considering the case of accused for remission seems to be the natural administrative conduct of the officers and the jail authority.

The Court observed that neither the first information report states that the injured belong to a particular community nor any documentary evidence to prove that the injured belongs to SC or ST was produced either before investigating officer or Sessions Court. Further, no independent witness has been examined by the prosecution, and one of the witnesses had stated that he did not know the accused and in his cross examination had denied the commission of offence.

Further, the Court said that the evidence on record highlights the theory of commission of rape on the ground that the prosecutrix belong to a particular community, but neither the FIR nor the oral testimony remotely suggests the same, and 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 must be proved.

The Court said that the evidence of the doctor and the medical report does not show presence of any spermatozoa though the prosecutrix and no injury was found on her private part.

The prosecutrix stated in her testimony that the accused 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 her back. The Court said that the Sessions Judge has also gone on the assumption that as she was married lady and was carrying a child, there is no necessity of there being any kind of injury sustained by her and has considered the fact that spermatozoa may or may not be found. Thus, the Court upturned the judgment of Sessions Judge.

Placing reliance on Patan Jamal Vali v. State of A.P., 2021 SCC OnLine SC 343, it was held that no case is made out for commission of offence under Section 376 read with 3(2)(v) of SC/ST Act, and only on the ground that the prosecutrix and her family members belong to a particular community, it cannot be said that the offence has been committed against them. Further, the Court said that it is not worth believing that a person who wants to commit sexual offence would enquire from the prosecutrix her name and her caste and then commit the unlawful act.

[Aftaf v. State of UP, 2022 SCC OnLine All 766, decided on 03-11-2022]


Advocates who appeared in this case:

Rakesh Dubey, Counsel for the Appellant;

Government Advocate, Counsel for the Respondent.


*Apoorva Goel, Editorial Assistant has reported this brief.

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