No conviction unless charged even if autopsy reveals rape:SC

A bench of justices B S Chauhan and Swatanter Kumar passed the ruling while reversing the acquittal of two convicts and chided the Allahabad High Court for drawing inferences of rape and murder against the divorced husband of the deceased Rashmi murdered 31 years ago on May 5,1980 in Uttar Pradesh.

"The trial court did not frame any charge under Section 376 IPC (rape) or Section 376 read with Section 511 IPC (attempt to commit offence). Moreover, no witness had ever mentioned anything in this respect. Thus, it is beyond any stretch of imagination of any person, how such observations could be made by the High Court.

"Thus, even if the post mortem report revealed any sexual assault on the deceased victim, such contents are not admissible in spite of the fact that the post mortem report had been exhibited and proved by Dr G R Sharma (PW.1), in view of the facts mentioned herein above," Justice Chauhan, writing the judgement, said.

In the instant case, the sessions court in Saharanpur had sentenced Mohd Iqram and another person for strangulating to death Rashmi at her house who was divorced from Suresh Kumar.

Though the prosecution had named Suresh as an accused, the sessions court acquitted him of the charges.The deceased was residing in a portion of the house of Suresh as per a decree of a matrimonial court which had also ordered him to pay her a monthly maintenance of Rs 150. Rashmi had filed an appeal in the appellate court during the pendency of which she was murdered.

The high court, however, acquitted Mohd Ikram and the other accused but went on to infer that Suresh had probably committed the murder after committing her rape.
It said "the post-mortem report shows that seminal fluid was found in her vaginal part and several ante-mortem injuries had also been inflicted on her. The autopsy indicated as if she was subject to forcible intercourse also before her death.

"The greater possibility is that it was her husband who cut short her life after inflicting several injuries on her and strangulating her but before doing that he even had forcible sexual intercourse with her exhibiting sadistic tendency."Aggrieved by the acquittal, the UP government had appealed in the apex court