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Re-evaluate Cases For Remission After 14 Years Of Incarceration Even If Appeals Are Pending In HC: Allahabad HC To UP State Government

 

In a very path breaking development, we see that the Allahabad High Court has in the fitness of things for the benefits of undertrials who remain in incarceration for long period without any trial held in a latest, learned, laudable and landmark judgment titled Raggu Baniya @ Raghwendra vs State of UP in Criminal Appeal No. 544 of 2010 delivered as recently as on October 26, 2021 has directed the Uttar Pradesh Government to instruct the District Magistrates of all the districts to re-evaluate the cases for remission after 14 years of incarceration even if appeals in such cases are pending in the High Court. It must be apprised here that the Bench of Allahabad High Court comprising of Justice Dr Kaushal Jayendra Thaker and Justice Ajai Tyagi which pronounced this extremely commendable judgment ordered thus while hearing an appeal filed by a rape convict challenging his life imprisonment sentence awarded by Additional Sessions Judge, Special Court (Dakaity Affected Area), District Kanpur Dehat. We thus see that the Court allowed the appeal of the rape convict in jail since 2008 and reversed the judgment and order impugned and the accused was convicted for the period undergone.

To start with, the Bench first and foremost puts forth in para 1 that, “By way of this appeal, the appellant has challenged the Judgment and order dated 08.12.2009 passed by Additional Session Judge, Special Court (Dakaity Affected Area), District Kanpur Dehat in S.T. No.68 of 2009, State v. Raggu Baniya @ Raghvendra, (arising out of Case Crime No.413 of 2008), under Sections 376 of IPC, Police Station Ghatampur, District Kapur Dehat whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for life imprisonment with fine of Rs.5,000/-, and in case of default of payment of fine, to undergo further rigorous imprisonment for six months.”

While touching on the facts of this case, the Bench then observes in para 2 that, “The brief facts as per prosecution case are that on 24.8.2008 at about 9:00 a.m., the prosecutrix was going alone from her house to break the cucumber in the field of Bhaiyadin Yadav, when she reached, accused- Raggu Baniya @ Raghwendra son of Chandra Pal Sankhwar who had caught hold of her with bad intention and he committed rape with her and on the sound of her screaming, complainant with his brother (Baburam) came running to the place of the incident and tried to nab the accused, but accused ran away from the place of offence. The complainant reached the police station for reporting the said incident as a case of rape. Sub Inspector Ramraj Shukla, Chauki Incharge registered the First Information Report and started the investigation, visited the spot (namely place of offence), prepared site plan, recorded statements of the prosecutrix and witnesses and after completing investigation submitted charge sheet against the accused.”

Truth be told, the Bench then brings out in para 3 that, “The prosecution so as to bring home the charges examined five witnesses, namely:-

1 Prosecutrix P.W.1

2. Sukhram( Father) P.W.2

3. Dr. Geeta Yadav ( Doctor) P.W.3

4. Sughar Singh Sachan (Chief Pharmacist) P.W. 4

5. Ramraj Shukla (Chauki Prabhari) P.W. 5.”

To be sure, the Bench then states in para 4 that, “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-10

2. Written report Ext. Ka-2

3. Recovery memo of Cloth Ext. Ka-7

4. Statement of Pinki (prosecutrix) Ext. Ka-1

5. Injury Report Ext. Ka-3

6. Supplementary Report Ext. Ka-4

7. Injury Report Ext. Ka-5

8. Charge Sheet Mool Ex. Ka-9

9. Site Plan with Index Ex. Ka-8.”

To put things in perspective, the Bench then envisages in para 12 that, “PW-1, namely, the prosecutrix has been examined on oath who was made to understand that she was in a court of law, she understood the importance of her testimony, she understood why she was summoned to the Court where she answered that as the accused had committed bad work with her, she was summoned and that she was capable of answering or the questions. According to her, when she was 11 years of age and when she went with Pooja (sister of accused) for eating cucumber in the field of Bhaiyadin. Raghvendra-accused sent his sister from the field of Bhaiyadin to fetch water. When she also tried to leave the place, he conveyed that he would give her cucumber, he took her to the maize field, she started screaming but the accused forcibly shut her mouth by cloth and he had forcible intercourse. She was brought to the police station by her grand father. She was hospitalized for three days. She was taken to the hospital by her grand father and the police personnel. Her statement under Section 164 Cr.P.C. was recorded before the concerned Magistrate. In her cross examination, she stated that on the date or day of incident she did not go to the school as it was a Sunday. She was playing at her home and when Pooja came, her grand-father and father were not in the house. Her grand-father had gone just three fields ahead of Bhaiyadin’s field (the place of incidence). The incident occurred when Pooja called the prosecutrix at 9.00 a.m.”

As it turned out, the Bench then points out in para 13 that, “Sukhram, was examined as PW-2, who is the uncle of the prosecutrix,who had given the FIR. The prosecutrix was bleeding and so he took her on his shoulder and took her to police station and from there she was taken to hospital. She was hospitalized in Urshila Hospital, Kanpur, where she was hospitalized for three days. PW-2 when he was in his field, he heard the screaming of a girl, she was not able to speak because her mouth was forcibly shut by cloth. He brought the prosecutrix to their home and at 12.30 he took her to the police station.”

As we see, the Bench then brings out in para 14 that, “Dr. Geeta Yadav, PW-3 in her ocular version mentioned that hyman was ruptured and was bleeding the vaginal smear for the determination of the age of the prosecutrix was prepared. The matter was sent to the Radiologist and the injured, she was kept in emergency ward. Doctor in her ocular version did not give any finding of opinion about the sexual intercourse or rape committed on the prosecutrix. The prosecutirx was sent for getting her age examined by the C.M.O., Kanpur Nagar. The Injury, according to the doctor could be caused even otherwise then rape the hyman may ruptured not be because of the rap.”

It must also be mentioned here that the Bench then further states in para 15 that, “As far as PW-4, Chief Pharmacist is concerned, he is also a medical officer and he was summoned so as to prove the medico legal cases. The prosecutrix was referred to Kanpur accept the records he did not throw much light on the other facts.”

By the way, the Bench then as an aside states in para 16 that, “PW-5 is the Officer who had conducted the investigation.”

Be it noted, the Bench then envisages in para 19 that, “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”

To state the ostensible, the Bench then lays bare in para 20 that, “The evidence as discussed by learned Judge discusses all the aspects and he has held that the mere fact that no external marks of injury were found by itself would not throw the testimony of the prosecutrix over board as it has been found that at the time of occurrence as she was a minor girl. We also do not give any credence to that fact and would like to go through the merits of the matter.”

Adding more to it, the Bench then brings out in para 21 that, “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.”

It is worth noting that the Bench then minces no words in para 22 to hold that, “We venture to discuss the evidence of the prosecutrix on which reliance is placed by trial court 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 becomes clear that the testimony of the prosecutrix can be said to be that of a sterling witness and the medical evidence on evaluation prove the fact that case is made out against the accused.”

What’s more, the Bench then notes in para 23 that, “Though the evidence of Dr. Geeta Yadav, Medical Officer, PW-3, Mahila Hospital Kanpur Dehat who medically examined the prosecutrix on 22.10.2009, Auxiliary and public hair was not present. The breasts was not developed. The height of prosecutrix was 131 c.m. and her weight was 23 kg., teeth were present in her mouth. There was no injury on the breast. There was no injury and bleeding on the vaginal but hymen was torn and heeled vagginal smear was collected and was sent to the Pathologist. No living or dead spermatozoa were found in the vaginal smear. As per medical examination report no external or internal injury were visible on the whole body of the prosecutrix. On perusal of the medical report it appears that the victim was about 11 years old at the time of incident.”

Going ahead, the Bench then reveals in para 24 that, “In the x-ray examination, both wrist A.P., all eight carpal bones were found present. Lower epiphyses of both wrist joints were not fused. All the bony epiphyses around both elbow joints were fused. In the supplementary report, the doctor 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.”

It would be instructive to mention here that the Bench then enunciates in para 25 that, “As far as the medical evidence is concerned, there are three facts which emerge. 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 be helpful to the prosecution. The medical evidence should show some semblance of forcible intercourse, the prosecutrix was gagged and hospitalised for three days 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.”

Quite rightly, the Bench then holds in para 26 that, “In our finding, the medical evidence goes to show that doctor did not find any sperm. The doctor 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 girl who was minor girl.”

It cannot be glossed over that the Bench then mentions in para 27 that, “The factual data also goes to show that there are several contradictions in the examination-in-chief as well as cross examination of the witnesses. The prosecutrix in her examination-in-chief, she states that incident occurred at about 9:00 a.m. but nowhere in her ocular version or the FIR, she has mentioned that she was going to the fields to eat cucumber.”

No doubt, the Bench then rightly holds in para 28 that, “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 SCW 3104. The chain of incident goes to show that the prosecutrix was raped as would be clear from the provision of section 375 read with Section 376 of IPC.”

It also cannot be missed out that the Bench then underscores in para 29 that, “The judgment relied on by the learned counsel for the appellant will also permit us to concur with the judgment impugned of the learned Trial Judge where no perversity has crept in. Learned Trial Judge has given any finding as to fact as to how commission of offence under Section 376 IPC was made out in the present case, but the learned Judge further has not put any question in the statement recorded under Section 313 Criminal Procedure Code, 1973 of the accused relating to rape or statement which is against him.”

As a corollary, the Bench then quite significantly holds in para 30 that, “In view of the facts and evidence on record, we are convinced that the accused has been convicted for life, hence, the judgment and order impugned is reversed and the accused is convicted for period undergone. The accused appellant, if not wanted in any other case, be set free forthwith.”

Most significantly, the Bench then directs in para 32 that, “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.”

For clarity’s sake, the Bench then holds in para 33 that, “The accused, if not wanted in any other case, may be released forthwith.”

In sum, this notable judgment has come as a big relief to all those such under-trials who are in incarceration even after the expiry of 14 years as their appeals are pending in High Courts. Why should under-trials suffer jail if their appeals keep on pending in High Courts? Why Allahabad High Court which is biggest court in whole of Asia has just one High Court Bench and that too so near at Lucknow?

The million-dollar question is: Why can’t UP have more High Court Benches just like Maharashtra, Karnataka, Assam, Madhya Pradesh among other states? Incidentally, Maharashtra tops in the latest justice index ranking still it has 3 High Court Benches at Aurangabad, Nagpur and Panaji whereas UP has just one! Why when UP has maximum pending cases both in High Courts at more than 10 lakhs and more than 97 lakhs in lower courts about to touch 1 crore then why can’t more High Court Benches be created in UP? This is the nub of the problem!

The root cause is: Centre is just not prepared to do anything on this till now! The Judges of Allahabad High Court are most competent but so many seats keep lying vacant and in addition there are so many pending cases and worst of all to alleviate their burden Centre is just not prepared to set up even a single High Court Bench in whole of UP which is most shocking! This despite the fact that Justice Jaswant Singh Commission headed by former Supreme Court Judge in late 1970s had recommended 3 High Court Benches for undivided UP and so also 230th report of Law Commission of India recommended creation of more High Court Benches in States.

To top it all: The people of 26 districts of West UP whose population is more than 9 crore are compelled most foolishly to travel 600 to 750 km on an average whole night and half day all the way to Allahabad as they have been attached with it and not with Lucknow which is still 200 km closer and where High Court Bench exists since 1948 even though it is very close to Allahabad! The lawyers of West UP have gone on strike and even on hunger strike for a month in 1978, for 6 months in 2001 from July to December, for 3 to 4 months in 2014-15 and so on and even on Padyatra as we saw in 1986 from Rishikesh via Mussorie to Delhi yet Centre ruthlessly and most unabashedly has till now not allowed even a single High Court Bench not just in West UP but in any nook and corner of UP whether it is Bundelkhand or Purvanchal or anywhere else! Even holy cities like Ayodhya, Kashi, Mathura, Meerut, Gorakhpur are treated as “most worthless” and “most useless cities” for a High Court Bench which is most disgusting and most disgraceful!

What a national disgrace that Ayodhya is fit for all other purposes like lighting more than 12 lakh diyas but not for High Court Bench under any circumstances even though Lord Ram is always worshipped as “Lord of Justice”! No way! Same is the case for other holy cities like Meerut and Mathura in West UP! This we will see till India completes 75 years of independence which is now not far away as we have already touched 74 years and Centre is unrelenting on this for reasons I cannot second guess! This is the real reason why farmers especially in UP never trust Centre as they feel that Centre is most happy inaugurating international airports in which only rich and affluent can travel and is only concerned with their welfare!

Sanjeev Sirohi

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