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The Allahabad HC in January, 2021 had noted that the accused (Vishnu Tiwari) has been wrongly convicted under rape charges since 2000 and therefore the judgment and order impugned by the trial court was reversed and he was acquitted after serving 20 years in jail.

The Division Bench of Justices Dr. Kaushal Jayendra Thaker and Gautam Chowdhary, observed that,

“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 facts of the present case date back to the year 2000 when,

“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.”

On 24.2.2003 a judgment was passed by court of Sessions Judge, Lalitpur in Special Case State Vs. Vishnu 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, 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/-; he was further convicted under Section 3(2) [ 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.

In the present case the counsel for the appellant relied upon the SC judgment in the case Sadashiv Ramrao Hadbe v. State of Maharashtra, 2006(10)SCC 92  and contends 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.

“...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.”

Further the counsel for the appellant relied on the latest decision of Supreme 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 has misread the provisions of law, just because the prosecutrix is belonging to scheduled caste community, the offence would not be made out.”

In respect of the victim, the doctor in medical report had opined that,

“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”

Taking into account the factual matrix of the present case the court observed 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 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. The First Information Report is also belatedly lodged by three days is the submission of the counsel Amicus Curiae appointed by High Court.”

Further the court on Section 3(2)(v) of Scheduled Casts and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 observed that,

“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 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.)”

The court noted that the factual data also goes to show that there are several contradictions in the examination-in-chief as well as cross examination of all witnesses and thus while allowing the appeal observed 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.”

The court further ordered 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 observing that,

“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.”

Case title – Vishnu Tiwari v. State of U.P., 2021

Law point- Section 433 and 434 of the Cr.P.C, Section 3(2)(v) of Scheduled Casts and Scheduled Tribes ( Prevention of Atrocities) Act, 1989, Sections 376, 506 of IPC

Following this, PIL's have been filed by BJP Leader's Ashwini Kumar Upadhyay and Kapil Mishra on the lines of issues surrounding wrongful prosecution before Supreme Court.

Mishra has sought compensation for Rape accused Vishnu Tiwari and it is his case that strict action be taken to initiate prosecution of those who make fake complaints and in order to do this, there is a prayer sought for formulation of guidelines which stipulated payment of compensation to the victims of wrongful prosecution. 

It has been averred that the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) is being misused by miscreants.

Ashwini Kumar Upadhyay on the other hand has sought directions to the Centre for formulation of Guidelines for purposes of granting Compensation to Victims of Wrongful Prosecution and to implement the recommendations of Law Commission Report No-277 on Miscarriage of Justice ("Law Commission Report").