Abhijit Kanhaiya Chakroworty @ Abhijeet Chakrabarty v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.5 of 2023 Arising Out of PS. Case No.-305 Year-2021 Thana- AMARPUR District- Banka ====================================================== Abhijit Kanhaiya Chakroworty @ Abhijeet Chakrabarty S/o Kanhaiya Lal Charoworty R/v- Dumrama, P.S.- Amarpur, District- Banka ... ... Appellant

Versus

1.

The State of Bihar 2.

ANJALI MUKESH CHAKRABORTY C/o Mukesh Kumar Chakraborty R/o village and post- Dumrama, P.S.- Amarpur, District- Banka ... ... Respondents ====================================================== Appearance :

For the Appellant :

Mr. Vindhyakesari Kumar, Sr. Advocate Mr. Ajay Mukherjee, Advocate Mr. Ganesh Sharma, Advocate For the State :

Mr. Sujit Kumar Singh, APP For the Informant :

Mr. Uttam Kumar Mishra, Advocate Mr. Santosh Kumar Sinha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) Date : 28-04-2025 Heard Mr. Vindhyakesari Kumar, learned Senior Counsel assisted by Mr. Ajay Mukherjee, learned Advocate for the appellant, Mr. Uttam Kumar Mishra, learned counsel for the informant and Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State.

2. The present appeal has been preferred for setting aside the judgment of conviction dated 02.11.2022 (hereinafter referred to as the 'impugned judgment') and the order of sentence dated 10.11.2022 (hereinafter referred to as the 'impugned order')

2/23 passed by learned Additional Sessions Judge-VI-cum-Special Judge (POCSO), Banka (hereinafter called the 'learned trial court') in Spl. POCSO Case No. 26 of 2021 arising out of Amarpur P.S. Case No. 305 of 2021.

3. By the impugned judgment, the appellant has been convicted for the offences under Section 376(3) of the Indian Penal Code (in short 'IPC') and Section 4(2) of the Protection of Children from Sexual Offences Act (in short 'POCSO Act') and by the impugned order, the appellant has been directed to undergo rigorous imprisonment for twenty years with a fine of Rs. 25,000/- under Section 4(2) of the POCSO Act and in default of payment of fine, he shall further undergo simple imprisonment for six months. Prosecution Case

4. The prosecution story is based on the written application of the informant (PW-5). In her written application, the informant alleged that her husband, elder son and younger daughter (victim girl) came to her sasural in village Dumrama. On 08.02.2021, they came to Patna by plane, thereafter, they went to Bhagalpur and from there, they went to their native village Dumrama to attend Kali Pooja. On 23.02.2021, they returned to Mumbai but after coming home, she found that her daughter was scared and quiet, her daughter was not talking to anyone. The informant alleged that when her daughter came home, she found

3/23 blood on the underpant of her daughter, she asked her about it but she did not reply. She has stated that her daughter was bleeding from her private part for eight days. The informant stated that she contacted her family Doctor also. She was confused about the bleeding of her daughter as 'period' at her age was not possible. She doubted that something must have happened to her daughter in the village but her daughter was not saying anything. On 03.04.2021, when the informant took her daughter into confidence and persuaded her then her daughter told her about the occurrence which had happened when she was in village Dumrama. Her daughter told her that she used to play with two years old son of Abhijit Kanhaiya (this appellant). On 14.02.

2021 at about 03:00 PM, this appellant called her daughter in his room to play with his son, where his two years old son was also there. The house of Abhijit Kanhaiya is adjacent to sasural home of the informant. The informant further alleged that when her daughter went in the room then this appellant took off his jeans pant and underwear to which her daughter got scared and her daughter asked him to open the latch of the door but he did not open and her daughter was unable to open the latch because latch was too high. Thereafter, this appellant forcibly undressed her daughter and threatened her not to shout otherwise he would kill her.

4/23 informant alleged that her daughter got scared and this appellant caught hold of her from behind and committed wrong act. For a long time, this appellant tortured her daughter, blood started coming out of her private part. Thereafter, he opened the door and her daughter ran out of the room but her daughter did not tell this to anyone. After hearing all this from her daughter, she was shocked. Her daughter told her about the occurrence after one month.

5. On the basis of this written application, Amarpur P.S. Case No. 305 of 2021 dated 24.06.2021 was registered under Section 376 IPC and Section 6 of the POCSO Act. After investigation, Police submitted chargesheet bearing No. 579 of 2021 dated 29.08.2021 against this appellant under Section 376 IPC and Section 4 of the POCSO Act. On the basis of this chargesheet, learned trial court took cognizance of the offences vide order dated 13.09.2021. On 03.02.2021, charges were framed under Section 376 IPC and Section 4 of the POCSO Act. Charges were read over and explained to the appellant in Hindi to which he pleaded not guilty and claimed to be tried.

6. In course of trial, the prosecution examined as many as seven witnesses and exhibited several documents to prove the prosecution case. The defence also examined two witnesses. The

5/23 list of the prosecution witnesses and the defence witnesses as also the exhibits produced on behalf of the prosecution are being shown hereunder in tabular form:- List of Prosecution Witnesses PW-1 Dr. Sudha Kumari PW-2 Shweta Kumari (I.O.) PW-3 Victim girl (X) PW-4 Sister of the Victim PW-5 Mother of the Victim (Informant) PW-6 Brother of the Victim PW-7 Father of the Victim List of Exhibits brought on behalf of the Prosecution Exhibit 'P1'

Medical Report proved by PW-1 Exhibit 'P2'

Supplementary Medical Report proved by PWExhibit 'P3' Endorsement for Registration of FIR by PW-2 Exhibit 'P4'

Formal FIR proved by PW-2 Exhibit 'P5'

Chargesheet proved by PW-2 Exhibit 'P6'

Signature of the victim on her statement recorded under Section 164 CrPC proved by PW-3 Exhibit 'P7'

Signature of the informant on the FIR proved by PW-5 Exhibit 'P8'

Signature of the informant on her statement recorded under Section 164 CrPC proved by PW-5 List of Defence Witnesses DW-1 Naresh Mohan Chakraworty DW-2 Bharat Kumar Chakarworty

6/23 Findings of the Learned Trial Court

7. Learned trial court, after analysing the evidences available on the record found that the victim in this case is a reliable and trustworthy witness, therefore, conviction of the accused relying upon her sole testimony can be sustained.

8. Learned trial court observed that the victim girl had disclosed the incident after 10-15 days of the occurrence but the case was instituted four months thereafter of the alleged occurrence as the family of the victim was residing in Mumbai and the Mumbai police advised them to lodge the case in the jurisdictional police station where the occurrence had taken place but due to outbreak of Covid-19, they could not move out of Mumbai. Learned trial court further observed that only after institution of the case, the medical examination of the victim was done and obviously, even if any injury as alleged to have been caused to the body of the victim would have healed during the period.

9. Learned trial court further found that the defence witnesses have deposed about the land dispute between the parties which is the motive of this false case but the defence has not produced any documentary evidence in support of its contention, therefore, the plea of having land dispute is disbelieved.

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10. Learned trial court found that the prosecution has been able to prove the charges beyond all reasonable doubts against the accused. Accordingly, the appellant was convicted for the offence under Section 376(3) IPC and Section 4(2) of the POCSO Act.

Submissions on behalf of the Appellant

11. Mr. Vindhyakesari Kumar, learned Senior Counsel for the appellant submits that it is a case of no evidence. The First Information Report has been lodged after four and half months of the occurrence. The FIR was sent to the court of learned Jurisdictional Magistrate four days after registration of the FIR.

12. Learned Senior Counsel submits that from the evidence of the mother of the victim, it would appear that after the victim girl reached Mumbai, her mother noticed while washing her cloth that there were some blood stains. Then she asked from her daughter but her daughter did not disclose anything. The mother (PW-5) has stated that after about ten days her daughter told her that when she was playing with the son of Abhijeet Chakrabarty (the appellant) in village Dumrama then Abhijeet Chakrabarty caller her saying didi-didi and committed rape on her for 20-25 minutes. He had also threatened her not to tell the occurrence to anyone otherwise she would be killed. The mother (PW-5) has

8/23 stated that after hearing this she had taken the victim to Dadar Police Station with a Lawyer and had submitted a written application. The said written application has not been brought on record even as it was not produced before the I.O. (PW-2) in course of investigation of the case.

13. Learned Senior counsel submits that PW-5 has stated that the case which she had lodged in the Dadar Police Station, on that she had not put her signature. Police told her to go to Amarpur and lodge the case. It is submitted that from the sequence of events it would appear that PW-5 had come to know about the occurrence only after ten days of the arrival of the victim girl at Mumbai on 23rd February, 2021. She had gone to Dadar Police Station where she was advised to go to Amarpur for lodging the case but since then PW-5 kept quiet and she went to Amarpur Police Station on 24th June, 2021. This is her own statement in paragraph '6' of her deposition. She has proved her written application as Exhibit 'P7'.

14. Learned Senior Counsel submits that there is an inordinate delay in lodging of the FIR. The FIR could have been lodged even telephonically or through emails. There is also a concept of zero FIR and had she approached Dadar Police Station, the Dadar Police could have certainly registered a zero FIR and sent the same to the Amarpur Police Station but no such step was

9/23 taken by the informant (PW-5). The inordinate delay of over three and half months even after knowledge of the entire occurrence would prove fatal to the prosecution case.

15. Learned Senior Counsel submits that the FIR has been registered on 24th June but it was sent to the court of learned jurisdictional Magistrate on 28.06.2021. The statutory mandate as prescribed under Section 157 CrPC has not been followed and the column in the format of Formal FIR requiring the Station House Officer to write the date and time of dispatch of the FIR to the court, has been left blank. A four days' delay in sending the FIR, in the facts of the present case would further create doubt over the authenticity of the prosecution story. Learned Senior counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of Meharaj Singh (L/Nk.) vs. State of U.P. reported in (1994) 5 SCC 188 and Chotkau vs. State of U.P. reported in (2023) 6 SCC 742 to support his contentions. He has also relied upon the judgment of the Hon'ble Supreme Court in the case of Sunil Kumar and Ors. vs. State of M.P. reported in (1997) 10 SCC 570 to submit that the incident in question could have been reported to the police on phone. In the present case, however, no such step was taken.

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16. Learned Senior Counsel further submits that the mala fide on the part of the informant (PW-5) may be found from the fact that when she made her statement under Section 164 CrPC before the learned Magistrate, she alleged that the accused Abhijeet has done the same act with two daughters of his brother and one girl of neighbour. She has stated that her daughter is the fourth victim of the appellant, but when PW-5 came to depose in course of trial, she has not stated so in her examination-in-chief. In paragraph '31' of her deposition, PW-5 has rather stated that the accused has never committed any occurrence of rape. It is, thus, submitted that in her 164 CrPC statement, PW-5 had made exaggerated statement only to cause harassment to the appellant who is none else but the nephew of her husband. The defence has suggested that there was a dispute over the residential house in village Dumrama. It is an admitted position that the informant and her family was living in Mumbai. Her husband had shifted there about 40 years ago.

17. Learned Senior Counsel further submits that it has come in the evidence of the victim as well as the informant that when the victim was taken to the doctor in Mumbai and the doctor was informed that she was bleeding, the doctor said that she was bleeding because of the menstruation. The doctor had also said that

11/23 sometimes menstruation starts in the age of the victim girl. In this connection, the learned Senior Counsel has pointed out paragraph '30' of the deposition of the victim (PW-3) wherein she has stated that the doctor at Mumbai had said that this is simple and normal and period may come at the age of 10 years. Paragraph '15' of the evidence of her mother (PW-5) corroborates the statement of the victim (PW-3), she has stated that the family doctor had treated PW-3 and the said doctor had said that the blood was of menstruation/period. Learned Senior Counsel further submits that the opinion of the doctor at Mumbai, if appreciated with the opinion of Dr. Sudha Kumari (PW-1) who examined the victim on 28.06.2021 in the Medical College at Bhagalpur, it would appear that PW-1 was found in between 12-14 years of age and PW-1 has clearly stated that regarding intercourse nothing relevant has been found. The medical examination report and the supplementary report prepared by PW-1 are on the record as Exhibit 'P1' and 'P2' respectively.

18. Learned Senior Counsel further points out that the mother has stated that she had washed the clothes of the victim. It is submitted that the clothes of the victim were not handed over to the I.O., therefore, there is no examination of the so-called blood which was allegedly found on the cloth of the victim.

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19. Learned Senior Counsel further submits that the place of occurrence in this case is said to be the house of the accused. The I.O. (PW-2) has stated that she had recorded the boundary of the house of the accused but had not recorded the boundary of the room. The defence called upon the I.O. to say as to who had got the place of occurrence identified? On this, the I.O. has stated that she has not recorded in the case diary that who had got her the place of occurrence identified. In her examination-inchief, she has, though, stated about visiting the place of occurrence but who got her identified the room in which the alleged occurrence took place is not known.

The informant (PW-5) has stated that she had reached the police station from Mumbai for lodging the case and after lodging the case she had gone to the house of her mother-in-law at Champa Nagar with her husband, son and both the daughters. She has further stated in paragraph '29' that when Daroga Ji reached Dumrama, she was in Champa Nagar with her husband, son and both the daughters. It is, thus, submitted that the I.O. has done only paperwork, neither the victim nor any of the family member of the informant was present to show her the place of occurrence. The informant has herself stated that she had not handed over the clothes of the victim to the I.O.

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20. In these materials, it is submitted that the learned trial court has grossly erred in convicting the accused-appellant for the offences under Section 376(3) IPC and Section 4(2) of the POCSO Act, 2012.

Submissions on behalf of the Informant and the State

21. The appeal has been contested by learned counsel for the informant and learned Additional Public Prosecutor for the State. Mr. Uttam Kumar Mishra, learned counsel for the informant submits that the learned trial court has noticed in paragraph '22' the submissions of the learned Public Prosecutor. The victim of this case is the sole eyewitness and her evidence has been corroborated by four other witnesses.

22. It is submitted that the delay in registration of FIR had taken place because of the intervening Corona Pandemic lockdown and the suggestion of the defence through DW-1 and DW-2 that there was a previous land dispute and the desire of the victim's father to sell out his share of land has been rightly rejected by the learned trial court on finding the same flimsy in nature. Learned counsel has, therefore, submitted that no fault may be found with the judgment of the learned trial court, hence, it may be sustained.

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23. Learned Additional Public Prosecutor for the State has endorsed the submissions of Mr. Mishra, learned counsel for the informant.

Consideration

24. We have heard learned Senior Counsel for the appellant, learned counsel for the informant and learned Additional Public Prosecutor for the State as also perused the trial court's records.

25. It is evident from the materials available on the record that the alleged occurrence is said to have taken place on 14th February, 2021 in the house of the accused during Kali Pooja period. It has come in evidence that during Kali Pooja, there were at least 17 members of the family who were present in the house. It is alleged that in the occurrence which took place for 20-30 minutes, the appellant committed rape on the victim.

26. This Court finds that the victim did not disclose the occurrence to her parent and brother who were with her. A delay of few days in not disclosing the matter to her parents would not have proved fatal but the facts of this case are clearly showing that the victim could sense that she had a bleeding only during her travel to Delhi. The date of travel to Delhi has not been disclosed in her deposition but it has come in evidence that when she reached Mumbai, after 10-12 days, she had disclosed the occurrence to her

15/23 mother. Her mother had called a lawyer in the house. The victim (PW-3) has stated that after 3-4 days, she had disclosed the occurrence to her sister. She has also stated that her mother had taken her to a Doctor who said that she was having period and that was the reason of bleeding. She has stated that her mother had also gone to police station at Mumbai but police had not recorded her statement. She has stated that the Advocate had taken her statement. It is, thus, evident that only after few days of reaching to her house at Mumbai, the entire occurrence was within the knowledge of her mother and sister. Her mother had also taken advice of a lawyer. She had gone to local police station at Mumbai and then had also consulted a Doctor.

In these circumstances, a delay of over three and half months even after knowledge of the occurrence would definitely create doubt over the authenticity of the prosecution story. This, coupled with the fact that the formal FIR which was registered on 24.06.2021 was sent to the court of learned Jurisdictional Magistrate only on 28.06.2021 would create doubt as to whether FIR is anti-dated.

27. In the case of Meharaj Singh (supra), the Hon'ble Supreme Court has considered the impact of delayed lodging of the FIR and sending the same to the learned jurisdictional court. Paragraph '12' of the judgment is being reproduced hereunder for a ready reference:- "12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the

16/23 purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks.

One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report.

Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then antetimed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW-8."

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28. The same view has been reiterated by the Hon'ble Supreme Court in the case of Chotkau (supra). Paragraph '69' of the judgment in the case of Chotkau (supra) reads as under:- "69. On the question of compliance of Section 157(1) along with logical reasoning for doing so, the following passage from the decision in Jafarudheen v. State of Kerala8 may be usefully quoted as under : (SCC p. 462, paras 28-29)"

"28. The jurisdictional Magistrate plays a pivotal role during the investigation process. It is meant to make the investigation just and fair. The investigating officer is to keep the Magistrate in the loop of his ongoing investigation. The object is to avoid a possible foul play. The Magistrate has a role to play under Section 159CrPC.

29. The first information report in a criminal case starts the process of investigation by letting the criminal law into motion. It is certainly a vital and valuable aspect of evidence to corroborate the oral evidence. Therefore, it is imperative that such an information is expected to reach the jurisdictional Magistrate at the earliest point of time to avoid any possible antedating or ante-timing leading to the insertion of materials meant to convict the accused contrary to the truth and on account of such a delay may also not only get bereft of the advantage of spontaneity, there is also a danger creeping in by the introduction of a coloured version, exaggerated account or concocted story as a result of deliberation and consultation.

However, a mere delay by itself cannot be a sole factor in rejecting the prosecution's case arrived at after due investigation. Ultimately, it is for the court concerned to take a call. Such a view is expected to be taken after considering the relevant materials.""

8. (2022) 8 SCC 440 : (2022) 3 SCC (Cri) 436

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29. In the aforementioned background of the materials on the record, when this Court examines the evidence of PW-3 and PW-5 on the point of bleeding of the victim, this Court finds that both the witnesses are consistent in saying that when they contacted the Doctor at Mumbai, the Doctor told them that the victim was bleeding because she had started menstruating and it was because of the 'period' with which she had been undergoing. The informant did not approach any Doctor for further treatment as she seems to have got convinced with the opinion of the local Doctor that the victim was bleeding because of menstruation/ period at this age which is simple and normal.

30. This Court finds that so far as the local Doctor in Jawaharlal Nehur Medical College and Hospital at Bhagalpur is concerned, she has been examined as PW-1. She has opined on the basis of X-ray report and the radiological report findings that the victim was aged around 14 years approximately. There was no external injury over her private part and most importantly she has stated in paragraph '4' of her deposition that regarding intercourse nothing relevant was found. In her cross-examination, PW-1 has reiterated that she had not found any sign of intercourse while examining the victim (PW-3).

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31. This Court further finds from the conduct of the informant (PW-5) that she has tried to frame a case and implicate the appellant. In this regard, a bare perusal of her statement under Section 164 CrPC would show that when she came to make her first statement before the learned Magistrate, she said that the accused had committed the same act with two daughters of his brother and with one girl of her neighbour but in course of investigation, no such material has come. No witness or victim has come to support this allegation of PW-5. When the informant came to depose in course of trial, she has herself admitted in paragraph '31' of her deposition that the accused has never committed any occurrence of rape.

This kind of vacillating statement of PW-5 casting aspersion on the reputation of the accused would only lead this Court to believe that she is not at all a reliable witness. The manner in which she has tried to develop the case against the appellant, chances of tutoring the victim girl who, according to the informant, was only 10 years old and as per the Doctor (PW-1) in between 12-14 years may fall in the category of a child witness. The chances of tutoring PW-3 cannot be ruled out.

32. On the date of examination of the victim, PW-1 has found her aged between 12-14 years, therefore, this Court has to consider the evidence of the victim (PW-3) with all circumspection

20/23 and care. In the kind of the property dispute which has been suggested by the defence in course of the evidence of the prosecution witnesses, a possibility of framing of the appellant in a case of this kind is present.

33. It is further evident from the materials on the record that the informant along with her husband, son and two daughters had visited Amarpur Police Station from Mumbai, there she lodged the case and then went to village Champa Nagar. Her mother-inlaw or family members were not present in the said village. In Champa Nagar, she had not disclosed the occurrence to anyone. She has stated that there was no one from the family of her mother-in-law there.

34. Again, it seems highly improbable that the informant, her husband and the children went to a place which is her mother-in-law's village but no one was there in the house. Her story that she had visited Champa Nagar is also not corroborated by any independent evidence.

35. This Court finds that regarding the place of occurrence, the I.O. has only stated that she had inspected the place of occurrence but she has also stated that she had not recorded statement of any independent witness. She had also not conducted any investigation on the point of land dispute between

21/23 the parties. It appears to this Court that the I.O. never visited the place of occurrence, otherwise she would examined at least the family members who were there in the house during 'Kali Puja'. I.O. She could not say that who had got her identified the place of occurrence, this she had not recorded in the case diary. From the re-examination of the I.O. (PW-2) on recall, it would appear that the I.O. has proved the statement of the victim in paragraph '34' of the case diary. She has stated that the victim had not made statement before her that the appellant had committed rape on her from front and behind and the sister of the victim and the victiim had not stated in their statement under Section 161 CrPC that the accused had taken away her sister to a room where he had committed rape on her. The mother of the victim has not made any statement that she had submitted an application against the accused in Dadar, Mumbai Police Station. The I.O. had not received any such application which PW-5 may have given to the Dadar Police Station.

36. This Court finds that according to the I.O., the victim was going to Delhi on 18.02.2021 and while going to Delhi, she had sensed that blood was coming and then she was going to washroom to clean herself. The I.O. had not contacted the family Doctor, the Officer-in-Charge of Dadar Police Station and the

22/23 Advocate. She has stated that there is no independent witness in this case. In paragraph '15' of her deposition, she has stated that she had not found any sign of rape at the place of occurrence because 2-3 months had already gone after the occurrence.

37. From the discussions made hereinabove and the materials available on the record, this Court is of the considered opinion that it would not be safe to sustain the conviction of the appellant in the kind of the evidences which have been adduced in course of trial. The victim (PW-3) of this case seems to have been tutored at a belated stage after reaching Mumbai, still there is an inordinate delay in lodging of the FIR, the medical evidence does not corroborate the case of the prosecution rather the statement of PW-3 and PW-5 that the Doctor at Mumbai had said about PW-3 that she was menstruating and bleeding for that reason, would take this Court to conclude that the judgment of the learned trial court is not based on correct appreciation of the materials on the record.

38. In result, the impugned judgment and order are set aside.

39. This appeal is allowed.

40. The appellant is acquitted of the charges giving him benefit of doubt. He is said to be in custody. He shall be released forthwith if not wanted in any other case.

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41. The judgment has been dictated in court, however, the release order shall be issued forthwith and sent to the trial court and the concerned Jail Superintendent through FAX/ E-mail and Special Messenger at the cost of the High Court.

42. Let the trial court's records along with a copy of this judgment be sent down to learned trial court. (Rajeev Ranjan Prasad, J) ( Ashok Kumar Pandey, J) SUSHMA2/- AFR/NAFR CAV DATE Uploading Date 30.04.2025 Transmission Date 30.04.2025