Prosecutrix in her statement on oath has given statement that
one day in the month of October 2008 the accused called her in the
office room in the interval and committed rape upon her. Her
further statement is that after 20-25 days of the above incident the
accused called her in that very room and took her naked photo on
mobile and also took photo when he was committing rape on her.
This witness also admitted that she did not tell the incident to any
one due to the threats extended to her by the accused.
P.W.1, Dalip Singh in his cross-examination has stated that
prosecutrix had left the Gairad School after passing her class 8th in
the year 2007 to 2009 and in the year 2010 she was studying in class
10th in Inter College Tuped. Suggestion has been given to P.W.1,
Dalip Singh that the accused has been implicated in false case due to
the reason that prosecutrix was weak in her studies and she was
failed in her class and he was annoyed with the accused. This
witness also stated in
cross examination that the parents of
prosecutrix are alive. She has one brother and grand mother and the
prosecutrix never narrated the incident to them. It also creates a
doubt to this fact that the accused committed rape on the prosecutrix
once in the month of October, 2008 and then again in the month of
November 2008 and also prepared video clipping but surprisingly
enough no one had seen the incident particularly when it has come in
the statement of prosecutrix that the accused had used force and she
had raised alarm. This fact cannot be ignored that there were many
students and teachers, clerks and chukidar in the school but no one
had noticed the incident. Further when the prosecutrix left the school
then also she did not narrate the incident to her family members.
Again when the M.M.S. had come to light two years earlier as has
been stated by the I.O. in his statement, then also no action was
taken in the matter and there is no explanation from the side of
complainant as to why the action was not taken at that time. P.W.7,
11
Darshan Singh is alleged to have noticed the video clipping from the
mobile of a Nepali who had come to his shop to down load Nepali
songs and Darshan Singh saved the video clipping on his computer
and deleted the same from the mobile of that Nepali, but this witness
did not try to report the matter to the police and allowed him to go
away. P.W.7, Darshan Singh also stated before the court that the
Nepali person had told him that the video clipping was loaded to his
mobile from the mobile of his friend. Darshan Singh also admitted
that he has no registration under I.T. Act to do the work of preparing
C.D. from mobile and to do the work of downloading the songs on
mobile. All the above circumstances of video clipping don’t make a
complete chain of events so that it may be inferred that the video
clipping was prepared by the accused.
It is to be mentioned here that according to prosecutrix the
accused asked her to lift the border of her shirt and to pull down her
Salwar and she did that due to fear of the accused. The prosecutrix
was in school dress at that time and the accused took naked photos of
her body and when she refused to take her naked photos the accused
told her that he would delete the same. She further stated that the
accused committed rape on her on that day also and also prepared
video himself when he was committing rape on her. This part of
statement of prosecutrix is unbelievable. How a person can prepare a
video while he was doing sexual intercourse by using force with the
prosecutrix. In the situation like this some other person could have
prepared the video, but it is not a case of prosecution and as per
statement of prosecutrix
the accused himself prepared video of
naked part of her body when he was committing rape on her. This
possibility cannot be ruled out that some other person might have
done sexual intercourse with prosecutrix and she has falsely named
the accused- her teacher. Apart from this P.W.7, Darshan Singh,
owner of Kumaun Photo Studio, did not produce the hard disc of the
computer as a primary evidence to prove the factum of recovery of
M.M.S. from mobile of Nepali person and he has prepared the
C.D. without forensic examination of mobile of the accused, it can
not be said that the accused prepared the video of naked parts of the
body of the prosecutrix, particularly when in the disputed video the
person
shown committing rape is not identifiable and thus the
charges levelled against the accused-appellant are not proved.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 286 of 2011
Raju Thapa S/o Late Sri Bahadur Singh Thapa V State of Uttarakhand
Citation;2014 CRLJ 324 uttarkhand
Hon’ble B.S. Verma, J.
This criminal appeal U/S 374 of Cr.P.C. is directed against the
judgment and order dated 22-9-2001, passed by District and Sessions
Judge Bageshwar District Bageshwar in Sessions Trial No. 4 of 2011,
State Vs. Raju Thapa, convicting the accused Raju Thapa U/S 376
I.P.C. and Section 67-A of The Information Technology Act, 2000
and sentencing him to undergo R.I. for ten years and to pay a fine of
Rs. 10,000/- U/s 376 I.P.C. and in default of payment of fine to further
undergo six months R.I. and further sentencing him to undergo R.I.
for two years U/S 67-A of The Information Technology Act and a fine
of Rs. 10,000/- and in default of payment of fine to further undergo
six months R.I. However, it is directed that the sentences shall run
concurrently.
The prosecution story in brief is that
on 15-12-2010,
complainant Dalip Singh Khetwal lodged written report at P.S.
Kotwali Bageshwar to the effect that his niece the prosecutrix aged
14 years who is studying in class 10th in Inter College Tuped, two
years ago Raju Thapa a teacher of Gairad Bilkhet School had forcibly
committed rape on her after given her threats and also prepared a
obscene mobile clip after giving her threats to fail her in the class and
due to the threats she could not tell the occurrence to any one. On 14-
12-2010, when a Nepali customer came to the shop of Darshan
Khetwal, owner of Kumaun Photo Studio, in order to load picture-
songs in his mobile, then it came to light that there was an obscene
video-recording of Km. Reeta, who is his Bua in relation. At this
Darshan informed the informant and he came to the Photo Studio and
saw the obscene video recording and inquired from prosecutrix about
the said video recording whereupon the prosecutrix told the informant
that the incident is of two years ago, accused Raju Thapa, teacher of
Bilkhet Gairad High School had prepared the video record after giving
threats her to fail her in the class and to expel her from the school. The
complainant also handed over the C.D. at the police station. On the
basis of written report, Ext. Ka.1, chick F.I.R. Ext. Ka.5 was prepared
and case crime No. 1533 of 2010 U/Ss 376/506 I.P.C. and Section
67-A, 67-B of Information Technology Act, 2000 was registered,
carbon copy of registration of the case is Ext. Ka.6. The prosecutrix
was medically examined by the doctor. The I.O. inspected the place of
occurrence and prepared site-plan Ext. Ka.11. After completing the
investigation the I.O. submitted charge sheet Ext. Ka.14 against the
accused.
The C.J.M. Bageshwar committed the case to the court of
Sessions.
The Sessions Judge, Bageshwar framed charges U/Ss 376, 506
I.P.C., Section 67-A and 67-B of Information Technology Act and
Section 4/6 of Indecent Representation of Women(Prevention) Act,
1986. The accused denied the charges and claimed his trial.
The prosecution to prove its case produced P.W.1, Dalip Singh,
P.W.2, prosecutrix, P.W.3, Constable 40- C.P. Nandu Kumar Joshi,
P.W.4, Dr. Gayatri Pangti, P.W.5, Dr. Khempal, P.W.6, Rajendra
Singh, P.W.7, Darshan Singh and P.W.8, Basant Lal Biswakarma,
I.O.
The accused in his statement U/S 313 Cr.P.C. denied the
prosecution case and alleged that he has been falsely implicated in the
case.
The learned Sessions Judge after considering the entire
evidence on record and having heard counsel for the parties found the
accused guilty of Offences U/S 376 I.P.C. and Section 67-A of the
Information Technology Act, 2000, and passed sentences against him.
Feeling aggrieved, the accused/appellant has preferred this
appeal.
3
I have heard learned counsel for the parties and have gone
through the record.
Learned counsel appearing on behalf of the appellant
emphatically contended that there has been inordinate delay in
lodging the FIR and the prosecution could not furnish any satisfactory
explanation
for the same,
therefore, the whole prosecution case
based on this F.I.R., cannot be relied upon. Apart from this no effort
was made by the prosecution to prove the factum of
recording
obscene mobile video taken by the accused on the mobile and further
the computer hard-disc was not produced before the court for forensic
examination. Even mobile of the witness P.W.7, Sri Darshan Singh
was not taken by the I.O. for forensic examination and even no date
and time of occurrence was mentioned by the prosecutrix in her
statement. The prosecution failed to prove his case and thus the
accused-appellant is entitled to get benefit of doubt in the case.
In reply, the learned Brief Holder appearing on behalf of State
has submitted that in sexual offences delay in lodging FIR has to be
considered with different yardstick. The accused was class teacher of
the victim and he had committed rape on the prosecutrix after giving
her threats to fail her and to expel her from the class and the accused
also extended threats to her life and as the honour of family was
involved, the prosecutrix did not tell the incident to any one and when
the video recording prepared by the accused came to light, then she
was compelled to tell the truth. Therefore, the delay has been
explained satisfactorily. In support of her contention learned Brief
Holder
has relied on the case of
Satpal Singh versus State of
Haryana, reported in 2010 CRI.L.J. 4283.
I have gone through the above cited case. In para-15, the
Hon’ble Apex Court has observed as under-
“However, no straight-jacket formula can be laid down in this
regard. In case of sexual offences, the criteria may be different
altogether. As honor of the family is involved, its members have to
decide whether to make the matter to the court or not. In such a fact-
situation, near relations of the prosecutrix may take time as to what
course of action should be adopted. Thus, delay is bound to occur.
This Court has always taken judicial notice of the fact that-
4
‘ordinarily the family of the victim would not intend to get a stigma
attached to the victim. Delay in lodging the First Information Report
in a case of this nature is a normal phenomenon’.
The Apex Court also considered the issue at length in the case
of State of Himachal Pradesh vs. Prem Singh, reported in AIR 2009
SC 1010 and observed as under:-
“So far as the delay in lodging the FIR is concerned, the delay in a
case of sexual assault, cannot be equated with the case involving
other offences. There are several factors which weigh in the mind of
the prosecutrix and her family members before coming the police
station to lodge a complaint. In a tradition bound society prevalent
in India more particularly, rural areas, it would be quite unsafe to
throw out the prosecution case merely on the ground that there is
some delay in lodging the FIR.”
Learned Brief Holder also relied upon the case of State of U.P.
v. Manoj Kumar Pandey, reported in AIR 2009 Supreme Court 711,
wherein it has been observed in para-3-
‘The approach of the trial court and the High Court is clearly
unsustainable. Merely the victim was more than 16 years of age as
held by the trial court that cannot be a ground to hold that she was
consenting party. No evidence was led to show such consent. Apart
from that normal rule regarding the duty of the prosecution to
explain the delay in lodging FIR and the lack of prejudice and/or
prejudice caused because of such delayed lodging of FIR does not
per se apply to cases of rape. This has been the consistent view of
this Court. The High Court was, therefore, clearly wrong in
disposing of the appeal in such cryptic manner. In the circumstances
of the case, we set aside the order of the High Court and remit the
matter to it for fresh hearing so that it can consider the matter and
hear in detail and dispose of the same by a reasoned judgment.
Whatever has been expressed by us supra is only for the purpose of
coming to the conclusion that the manner of disposal of the appeal is
not proper.’
The written report was lodged by Dalip Singh Khetwal, P.W.1.
This witness has stated that on 14-12-2010, Darshan Singh Khetwal,
owner of Kumaun Photo Studio Bageshwar has informed him that a
5
Nepali customer had come to his shop to load songs on his mobile
and he had seen that there is an obscene video clipping in the mobile
whose face is like the face of his niece prosecutrix. This information
was given by Darshan Singh on his mobile and this witness had gone
to the Photo Studio and Darshan Singh had shown the video M.M.S.
and this video clipping was of the prosecutrix. The video clipping
was the photo of prosecutrix in naked position from knee upto
breast. In that picture the prosecutrix was wearing school dress –
white salwar, blue colored shirt and white coloured chunari and the
logo was of Junior High School Gairad and the scene of commission
of rape with prosecutrix was seen in the picture. This witness further
told that he came to his home and inquired from prosecutrix about
the matter. At this the prosecutrix told him that the incident is of 1 1⁄2
years ago. The accused Raju Thapa a teacher of Gairad School had
committed rape on her after threatening her to fail her and expel her
from the school and he had taken her photo on his mobile. This
witness further deposed that at the time when the rape was
committed on prosecutrix she was 12-13 years of age. He further
deposed that on 14-12-2010 he got prepared C.D. of video clipping
and on 15.12.2010 he lodged the F.I.R. against the accused. This
witness has proved the written report Ext. Ka.1 and the C.D. was
handed over to the Station Officer which has been proved as Ext.
Ka.2. This witness also proved the material Ext. 1 and 2, cloths of
prosecutrix and C.D. respectively.
In the cross-examination this
witness has stated that the prosecutrix after passing her 8th class had
left Gairad School and in the year 2010 she is studying in Inter
College Tuped in 10th class. He further stated that he does not know
the person in the video clipping , who has done sexual intercourse.
He also stated that he does not know how the video clipping had
come with Darshan Singh.
Thus from the statement of complainant P.W.1, Dalip Singh, it
is quite clear that when the obscene video clipping came to the
notice of Darshan Singh, owner of Kumaun Photo Studio, then this
witness came to the shop of Darshan Singh and he had seen the
video clipping and thereafter he got prepared C.D. and inquired from
prosecutrix and the prosecutrix had told this witness that the accused
6
had committed forcible rape on her about 1 1⁄2 years ago whereas in
the written report this witness has mentioned the period of incident
two years ago. This witness also could not tell the name of the
person doing intercourse in the video clipping.
P.W.2, prosecutrix has stated that in the year 2008, she was
studying in 8th class in Junior High School Gairad. There accused
was posted as a teacher and he used to teach her also. When she
was studying in class –8th in the month of October, 2008, the accused
called her alone at the Varandah of the School and told her that her
study work is not upto the mark, she had failed in class-6th twice and
if she has to pass class 8th she should be in his contact and if she
declines his advise, she will not pass class 8th and the accused would
expel her from the school and she could not get admission in some
other school also. Prosecutrix further deposed that on the same day
the accused told her to come to his office but she did not go to the
office room of accused. At this the accused beat her on the pretext of
study. In the month of October, 2008 one day when Head Master
was not in the school, in the third period the accused told her to
bring food in the office room. She went in the office room in the
interval. The accused was sitting in the room. The accused bolted
the door from inside and asked the prosecutrix to lay down on the
mat, but she refused to do so. The accused forcibly laid her down on
the mat and committed rape on her. When she cried the accused
closed her mouth with his hand. When the prosecutrix tried to run
away from the room the accused gave threats to her that if she
would tell the incident to any one, he would kill her and due to fear
of accused and for the sake of her honour she did not narrate the
incident to any one. This witness further deposed that after 20-25
days of the above incident, in the month of November, 2008 the
accused again called her in the same office room and asked her to
raise the hem of shirt and put-down the salwar and due to fear of
accused she did that and accused took out photo of her naked body
on his mobile. This witness also stated that on that day she was
wearing school dress – green shirt, white salar and white scarf and
school badge. When this witness refused to do so, the accused had
told her that he would delete the photo from mobile. She further
7
deposed that on that day the accused committed rape on her and took
obscene photo of commission of rape on her. When C.D. Ext. 2 was
shown to this witness playing on lap-top, this witness has admitted
that it is her photo. This witness further deposed that when in the
month of December, 2010 her paternal uncle told her about the
obscene photo on mobile then she narrated the truth to him. Then her
statement U/S 164 Cr.P.C. was recorded and she was medically
examined by the doctor. This witness has proved her signature on
statement recorded U/S 164 Cr.P.C. as Ext. Ka.4.
In the cross-
examination this witness has denied the suggestion that the accused
has not committed rape on her and no M.M.S. was prepared by the
accused on mobile.
The evidence of P.W.7, Darshan Singh is important. He is the
witness who had at the first instance seen the video clipping on the
mobile of a
person, resident of Nepal and had
informed the
complainant about the video clipping and thereafter prepared the
C.D. He has stated that he does the business of photography and
Tent House. His shop is situated at Pindari Road Bageshwar. He also
does the work of down-loading songs and videos on mobile through
computer. He further alleged that on 13-10-2010 at about 2 p.m. a
Nepali person came at his shop to load songs on his mobile and he
handed over the chip of his mobile to him and asked this witness to
down-load Nepali songs. The memory of
chip was full and he
asked the Nepali person that song cannot be downloaded on the chip.
At this that person asked him to delete some video clipping and
when he was deleting the video clipping he saw an obscene video
clipping and the face of the girl in video clipping was matching with
the face of prosecutrix daughter of his Bua and when he asked the
person how this video came to his mobile, he replied the same was
loaded from the mobile of his friend. He further deposed that he
saved that video clipping on his computer and deleted the same from
the mobile of Napali person. Thereafter he downloaded the songs on
the mobile and handed over the chip to Nepali person. Then he
called Dalip Singh paternal uncle of prosecutrix at his shop on 14th
and when he came to his shop, this witness told him about the
incident. After seeing the clipping Dalip Singh told this witness to
8
prepared C.D. and he prepare C.D. and deleted the clipping from the
computer. This witness also proved the C.D. material Ext. 2. In the
cross-examination this witness has stated that police had interrogated
him and he had given the statement to the police which he had given
in examination in chief before the court and if the I.O. has not noted
these facts in his statement he cannot tell the reason. Thus, from
cross-examination of this witness it reveals that the I.O. had not
noted the facts narrated by this witness in court. The conduct of this
witness seems to be highly doubtful. When a Nepali person had
come to him to down-load Nepali songs and he came to know about
the obscene video clipping then why this witness has not narrated the
facts to the police and allowed that person to go away. It has also
come in the statement of this witness that that Nepali person had told
him that the video clipping was downloaded by him from the mobile
of his friend. This witness also admitted that he has no registration
under I.T. Act to do the work of down-loading the songs on mobile
and for preparing C.D. from computer
whereas registration
is
essential.
The evidence of P.W.8, Inspector Basant Lal Viswakarma has
got relevance. This witness has stated that on the day when the
investigation was entrusted to him he had arrested the accused. He
inspected the registers of Junior High School Gairad took them into
custody and prepared Fard Ext. Ka.12. No effort was made to know
whether the Principal was really on leave on the dates when the
accused called the prosecutrix in the office room and committed rape
and prepared video clipping as narrated by prosecutrix. This fact
could very well be verified from the attendance registers, but it has
not been done.
This witness further deposed in his cross-
examination that two years ago this video clipping had come in the
mobiles. He further stated that he made search for the said Nepali
person but he could not be traced. He further stated that the mobile
of accused was taken by him from his brother but the same was not
sent for forensic test as the make of the mobile was of 2009 and he
also did not make the said mobile as case property. From the above
statement of I.O. it seems that no effective efforts were made by him
to search for the mobile on which the video clipping was prepared.
9
This witness also admitted in his cross-examination that
in the
recent technology the date and time of video clipping can be known
but he did not send the video clipping for forensic examination. He
further stated that he has recorded the statement of
Sri Rajendra
Bora, Head Master, Ramesh Singh Bhakuni, Assistant Teacher, Sri
Rajendra Singh Clerk and Sri Harish Chandra Kandpal, Chaukidar of
Junior High School Gairad, but he did not record the statement of
Sri Soban Singh Bisht, the then Principal of the school and these
witness did not support the theory of sexual intercourse by the
accused with the prosecutrix and video clipping.
This is an admitted fact that the person shown doing sexual
intercourse in the video clipping is not identifiable. Prosecutrix in
her statement has stated that she has identified the accused by his
pant, thigh, and penis. P.W.1, Dalip Singh in his cross-examination
has stated that he does not know the person in the video clipping
doing sexual intercourse. The face and other parts of body of the
person are not there in the video clipping and it cannot be said with
certainty that the video clipping is of the accused. It has also come
in evidence of the I.O. that two years ago this video clipping had
come in light. When this video clipping had come on the mobiles
two years ago then this fact remains as to why action was not taken
against the accused. Therefore in the facts and circumstances of the
case it is not a fit case where inordinate delay of about two years
may not be ignored and the case laws cited on behalf of the learned
Brief Holder on behalf of the State has no application in the case at
hand.
The prosecutrix was medically examined by P.w.4, Dr. Gayatri
Pangti on 16-12-2010. According to prosecutrix the incident was
committed in the months of October 2008 and thereafter in the
month of November, 2008. Thus the medical of the prosecutrix was
done after more than two years of the incident. According to this
witness hymen of the prosecutrix was ruptured, vagina was
admitting two fingers. Vaginal smear was taken and slide was sent
for examination but not sperm dead or alive was found.
P.W.5, Dr. Khempal had taken x-ray of
elbow and writ for
determining the age of prosecutrix and this witness has opined that
10
both the elbow joint and wrist joint had fused and on 16-12-2010 her
age was above 14 years and below 16 years.
Thus from the
evidence of P.W.1, Dalip Singh and P.W.2, prosecutrix as well as
medical evidence it is proved that the prosecutrix at the time of
occurrence was minor.
Prosecutrix in her statement on oath has given statement that
one day in the month of October 2008 the accused called her in the
office room in the interval and committed rape upon her. Her
further statement is that after 20-25 days of the above incident the
accused called her in that very room and took her naked photo on
mobile and also took photo when he was committing rape on her.
This witness also admitted that she did not tell the incident to any
one due to the threats extended to her by the accused.
P.W.1, Dalip Singh in his cross-examination has stated that
prosecutrix had left the Gairad School after passing her class 8th in
the year 2007 to 2009 and in the year 2010 she was studying in class
10th in Inter College Tuped. Suggestion has been given to P.W.1,
Dalip Singh that the accused has been implicated in false case due to
the reason that prosecutrix was weak in her studies and she was
failed in her class and he was annoyed with the accused. This
witness also stated in
cross examination that the parents of
prosecutrix are alive. She has one brother and grand mother and the
prosecutrix never narrated the incident to them. It also creates a
doubt to this fact that the accused committed rape on the prosecutrix
once in the month of October, 2008 and then again in the month of
November 2008 and also prepared video clipping but surprisingly
enough no one had seen the incident particularly when it has come in
the statement of prosecutrix that the accused had used force and she
had raised alarm. This fact cannot be ignored that there were many
students and teachers, clerks and chukidar in the school but no one
had noticed the incident. Further when the prosecutrix left the school
then also she did not narrate the incident to her family members.
Again when the M.M.S. had come to light two years earlier as has
been stated by the I.O. in his statement, then also no action was
taken in the matter and there is no explanation from the side of
complainant as to why the action was not taken at that time. P.W.7,
11
Darshan Singh is alleged to have noticed the video clipping from the
mobile of a Nepali who had come to his shop to down load Nepali
songs and Darshan Singh saved the video clipping on his computer
and deleted the same from the mobile of that Nepali, but this witness
did not try to report the matter to the police and allowed him to go
away. P.W.7, Darshan Singh also stated before the court that the
Nepali person had told him that the video clipping was loaded to his
mobile from the mobile of his friend. Darshan Singh also admitted
that he has no registration under I.T. Act to do the work of preparing
C.D. from mobile and to do the work of downloading the songs on
mobile. All the above circumstances of video clipping don’t make a
complete chain of events so that it may be inferred that the video
clipping was prepared by the accused.
It is to be mentioned here that according to prosecutrix the
accused asked her to lift the border of her shirt and to pull down her
Salwar and she did that due to fear of the accused. The prosecutrix
was in school dress at that time and the accused took naked photos of
her body and when she refused to take her naked photos the accused
told her that he would delete the same. She further stated that the
accused committed rape on her on that day also and also prepared
video himself when he was committing rape on her. This part of
statement of prosecutrix is unbelievable. How a person can prepare a
video while he was doing sexual intercourse by using force with the
prosecutrix. In the situation like this some other person could have
prepared the video, but it is not a case of prosecution and as per
statement of prosecutrix
the accused himself prepared video of
naked part of her body when he was committing rape on her. This
possibility cannot be ruled out that some other person might have
done sexual intercourse with prosecutrix and she has falsely named
the accused- her teacher. Apart from this P.W.7, Darshan Singh,
owner of Kumaun Photo Studio, did not produce the hard disc of the
computer as a primary evidence to prove the factum of recovery of
M.M.S. from mobile of Nepali person and he has prepared the
C.D. without forensic examination of mobile of the accused, it can
not be said that the accused prepared the video of naked parts of the
body of the prosecutrix, particularly when in the disputed video the
person
shown committing rape is not identifiable and thus the
charges levelled against the accused-appellant are not proved.
The witnesses of facts produced by prosecution i.e. P.W.1,
Dalip Singh and P.W.7, Darshan Singh, could not prove this fact that
in the video the person committing rape with the girl is the accused,
except the prosecutrix who has stated that she has recognized the
accused with the thigh, pant and penis. Thus, in the above facts and
circumstances it cannot be said that the person in the video clipping, is
the accused and no one-else. In the above facts and circumstances of
the case and the evidence discussed above, in my opinion, the case
law cited on behalf of learned Brief Holder referred above, is not
applicable to the facts of this case. The
prosecution has failed to
explain satisfactorily the long delay of about two years in lodging the
F.I.R., therefore, the whole prosecution story based on it is not
believable.
In view of discussion made in foregoing paragraphs, the
prosecution has failed to prove its case against the accused beyond all
reasonable doubts therefore, the accused-appellant is entitled to get
the benefit of doubt. The learned trial court has failed to appreciate the
evidence and facts of the case in right perspective and the judgment
and order passed by the trial court is liable to be set aside.
The appeal is allowed. The judgment and order passed by trial
court convicting the accused-appellant U/S 376 I.P.C. and section
67-A of I.T. Act and accordingly sentencing the accused-appellant,
is set aside.
The accused-appellant is in jail. He shall be released forthwith.
Let the record be transmitted to the trial court for compliance.
(B.S. Verma, J.)
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