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2005 DIGILAW 636 (CAL)

Mafijuddin Sheikh v. STATE OF WEST BENGAL

2005-09-23

SADHAN KUMAR GUPTA

body2005
Judgment :- (1.) The appeal has been preferred by the accused/appellant who faced the trial for the alleged commission of offence under Section 376/417, I.P.C. After trial, the learned Sessions Judge was pleased to hold the accused guilty for the offence under Section 376, I.P.C. and convicted and sentenced him to suffer R.I. for seven years and to pay a fine of Rs. 7,000/- in default further R.I. for seven months. However, he acquitted the appellant so far as the offence under Section 417 is concerned. Being aggrieved and dissatisfied with the said order of conviction, the appellant has preferred this appeal on the ground that the learned Sessions Judge was not at all Justified in convicting the appellant for the offence under Section 376, I.P.C. and it has been specifically claimed by the appellant that the learned Sessions Judge failed to appreciate the evidence properly and ignored the glaring discrepancies that were there in the evidence on the side of the prosecution. As such, the appellant has prayed for setting aside the said order of conviction, as passed by the learned Sessions Judge on him. (2.) Prosecution case is that one Samagri Bibi, being the mother of a deaf and dumb girl, filed a petition of complaint under Section 156(3), Cr.P.C. before the learned Chief Judicial Magistrate, Nadia alleging therein that the accused/appellant, being the neighbour allured her deaf and dumb daughter with the promise of ornaments and marriage etc. and committed sexual intercourse with her on different occasions taking advantage of her absence in the house as she was busy in attending her ailing husband and son who were undergoing medical treatment in the hospital. It has further been alleged that the appellant threatened her deaf and dumb daughter with dire consequences in the event of disclosure of the act of sexual intercourse between them to anybody. The complainant has claimed that she came to know about the incident when her daughter was carrying for three months. On her query the victim pointed to the house of appellant by her pose and posture and the pregnancy was confirmed by Dr. Subrata Pal of Krishnanagar. A salish was convened, where the victim identified the appellant, as the person responsible for the pregnancy, before the villagers. At that time, the appellant confessed his guilt and he was directed to pay a fine of Rs. 20,000/-: However, the appellant paid Rs. Subrata Pal of Krishnanagar. A salish was convened, where the victim identified the appellant, as the person responsible for the pregnancy, before the villagers. At that time, the appellant confessed his guilt and he was directed to pay a fine of Rs. 20,000/-: However, the appellant paid Rs. 500/- and prayed for one months time to pay off the balance amount. Subsequently, the accused/appellant refused to pay the balance amount and proposed the victim girl to cause abortion and when she did not agree to that proposal, the appellant started threatening the victim and her family members in various ways. When the defacto complainant approached the Police Station, the police authority refused to accept the petition of complaint on the ground of inordinate delay and as such finding no other way out, the defacto complainant filed the petition before the Chief Judicial Magistrate, Nadia who forwarded the same to the O.C. Chapra P.S. on 11.03.1999 for treating the said petition of complaint as F.I.R. and directed that the matter should be investigated. On the basis of that, Chapra P.S. case No. 77/99 dated 14.03.99 was started against the appellant. The case was investigated and after completion of the investigation, charge sheet was submitted against the accused/appellant. During investigation, the victim girls statement was recorded by a learned Magistrate under Section 164, Cr.P.C. In the mean time, the victim girl gave birth to a child who after few days expired. Subsequently, the case was committed to the Court of Sessions and charge under Section 376, I.P.C. alternatively under Section 417, I.P.C. was framed against the accused/ appellant. During trial, prosecution in all has examined 19 witnesses to prove the charge against the accused/appellant. Defence has adduced evidence of two witnesses and the defence case as it has transpired from the trend of the cross-examination and also from the statement of the accused made under Section 313, Cr.P.C., is that of complete denial and that he has been falsely implicated in connection with this case. The learned Sessions Judge, considered the entire materials on record and thereafter he was of the opinion that there is no case for proving the charge under Section 417, Cr.P.C. and as such he acquitted the accused in respect of the said charge. The learned Sessions Judge, considered the entire materials on record and thereafter he was of the opinion that there is no case for proving the charge under Section 417, Cr.P.C. and as such he acquitted the accused in respect of the said charge. However, the learned Sessions Judge was pleased to hold that the evidence on record sufficiently established that the accused/appellant was guilty of committing rape on the victim girl and as such the learned Trial Judge convicted the accused/appellant for the offence under Sections 376, I.P.C, Being aggrieved and dissatisfied with the said finding of the learned Trial Judge, the appellant has preferred this appeal. (3.) The point that is to be considered, so far as the present appeal is concerned, is, whether prosecution has been able to prove that it was the accused/appellant who actually committed rape on the victim girl against her will. Let us now see how far the prosecution has been able to prove the said charge against the accused/appellant beyond any reasonable shadow of doubt. (4.) I have already pointed out that the prosecution has examined 19 witnesses in support of its case. So far as the present case is concerned, the evidence of the victim girl and that of the defacto complainant are most important in order to come to a conclusion as to whether the accused/appellant committed rape on the victim girl or not. If we look into the petition of complaint, which was filed before the learned Magistrate on 10.3.99, then it will appear that there it has been stated by the defacto complainant, who is the mother of the victim girl, that the accused/appellant tempted her daughter of giving ornaments and to marry her and taking advantage of their absence in the house, he committed sexual intercourse with her in the bathroom of his house. It has further been alleged in the petition of complaint that thereafter the accused had sexual intercourse with the victim girl on subsequent occasions too. So, it appears that it is the case of the defacto complainant that the first incident of alleged rape took place in the bathroom of the house of the accused/appellant. In corroboration to the statement made in the petition of complaint, the complainant in her evidence also has admitted in cross-examination to the effect "The incident was happened at the bathroom of the house of Mafijuddin. In corroboration to the statement made in the petition of complaint, the complainant in her evidence also has admitted in cross-examination to the effect "The incident was happened at the bathroom of the house of Mafijuddin. My daughter informed that the incident was happened in 2/3 times in that bathroom. That incident was happened by force." But if we look into the evidence of the P.W. 1, who is the victim of this case, then it will appear that she has stated in her examination-in-chief that the incident of rape took place in her house and it happened only on one day. In her cross- examination this witness, that is the victim girl, stated to the effect "The incident was happened at my own house at night and all my family members were sleeping then." So it appears that there is material contradiction in between the statement of the defacto complainant and the victim girl regarding the place on which the alleged incident took place. The learned Sessions Judge, in his judgment tried to ignore this fact by pointing out that the victim was a deaf and dumb girl and as such no importance should be given to this discrepancy in her statement. But the reasoning of the learned Sessions Judge cannot be accepted, as because it is not the case of the prosecution that the victim girl was mentally unsound and was unable to understand what was taking place. Since the victim girl herself has claimed that the incident took place in her house, then we find no reason whatsoever as to why we should look into the evidence of the defacto complainant who has claimed that the incident took place in the bathroom of the house of the accused/appellant. We must not forget the mother only allegedly heard the incident from the P.W. 1. The victim girl clearly admitted in her evidence that the incident allegedly took place in the night in her house when all her family members were sleeping. It appears to me unbelievable that an outsider male person would take his entry into the said house in the night without the knowledge of the victim girl and her family members. The victim girl clearly admitted in her evidence that the incident allegedly took place in the night in her house when all her family members were sleeping. It appears to me unbelievable that an outsider male person would take his entry into the said house in the night without the knowledge of the victim girl and her family members. It is also unbelievable that the accused/appellant committed rape on the victim girl in her own house although the other family members were very much present in the said house, as admitted by the victim girl. This shows that the statement of the victim girl is either false or she must have consented with such sexual intercourse. Prosecution has tried to set up a case to the effect by adducing the evidence of the defacto complainant that on the material day the defacto complainant, her husband and her son were riot present in the house as both husband and son were admitted in the hospital and the victim girl was alone in the house. But this claim of the prosecution cannot have any leg to stand upon as from the evidence of the victim girl it is clear that the family members were present in the said house. Moreover, although the defacto complainant has claimed that she and other family members were in the hospital, as because her husband and her son were admitted in the hospital, but there is no supporting material on the side of the prosecution to establish this fact. No document whatsoever has been produced by the prosecution. It cannot be a difficult task for the prosecution to collect such papers from the hospital itself if there is any truth in this claim of the defacto complainant. Of course, the husband of the defacto complainant in his evidence has claimed that he was hospitalised during that period and that all the medical papers were lost due to flood. Even if we accept this claim of the husband of the defacto complainant that the papers were lost due to flood, then also we cannot place any reliance on this claim of the prosecution in absence of any medical paper being seized from the hospital by the investigating agency at the time of the investigation. Even if we accept this claim of the husband of the defacto complainant that the papers were lost due to flood, then also we cannot place any reliance on this claim of the prosecution in absence of any medical paper being seized from the hospital by the investigating agency at the time of the investigation. There is reason to believe that the prosecution has set up this claim falsely in order to establish the claim that at the time of the alleged incident the victim was alone in her house. Moreover, I have already pointed out that there are clear contradictions in between the statements of the two vital witnesses as to where the alleged incident actually took place. If the defacto complainants version is accepted, then the incident took place in the bathroom of the house of the appellant and as such, the question of the victim girls staying in her house in the night alone at that time, has got no significance at all. Be that as it may, I have already pointed out that the victim girl herself has come forward to depose in connection with this case regarding the incident. It is she who was ravished, allegedly by the accused/appellant. So, we are to confine our attention to the statements as made by the victim girl before the Court in respect of the alleged incident. I have already pointed out that the victim girl has claimed that the incident took place in her house in the night when the other family members were present in the said house. Of course, she has stated that those family members were sleeping. It appears to me to be unbelievable that the accused/appellant would be given free access in the said house in the night by the victim girl when the other family members were allegedly sleeping. It is not the case of the prosecution that the accused/ appellant entered into the house stealthily or by force without the knowledge of the victim girl. If we accept the claim of the victim girl that the accused had sexual intercourse with her in her room, then necessarily it presupposes that even if such incident took place, it was certainly with the consent of the victim girl. It appears that divergent claims have been made in respect of the age of the victim girl. If we accept the claim of the victim girl that the accused had sexual intercourse with her in her room, then necessarily it presupposes that even if such incident took place, it was certainly with the consent of the victim girl. It appears that divergent claims have been made in respect of the age of the victim girl. While the defacto complainant, has claimed that the age of the victim girl was 14/15 years, the victim girl herself has stated before the learned Magistrate that she was aged about 35 years. In order to dispel the doubt regarding the age of the victim girl, ossification test was undertaken and the medical report shows that at the time of the alleged incident the victim girl could not be aged less than 20 years. This shows that on the date of the alleged incident the victim girl attained majority and the circumstances in which the alleged incident took place, as described by the victim girl necessarily give rise to a presumption that the victim girl had consent for having sexual intercourse with the accused/appellant. If that is so, then the accused/appellant cannot be held liable for the offence as satisfied under Section 376, I.P.C. The learned Sessions Judge, in his judgment, tried to ignore all these facts by observing the helplessness of the victim girl, she being a deaf and dumb person. According to the learned Sessions Judge, the victim girl could not raise any protest due to her physical handicapness. But I regret, I cannot agree with this observation of the learned Sessions Judge. Certainly, the victim girl has the physical handicapness, being a deaf and dumb person and we have got full sympathy for her. But that does not mean, that only for that reason, whatever the victim girl had stated in her evidence, should be accepted as gospel truth in order to convict a person for the offence under Section 376 of the I.P.C. Even if there is a forcible sexual intercourse of the victim girl by the accused/ appellant, then I fail to understand as to what prevented the victim girl to make a sound of protest at the time of the incident particularly when the other family members were present in the house. There is no explanation for that. There is no explanation for that. Simply because, a claim has been made by the prosecution that the victim girl was threatened by the accused/appellant with dire consequences had she disclosed that fact, that cannot be a reason for the victim girl not to raise any protest or not to discuss the matter immediately to her parents. This fact certainly speaks a volume against the case of the prosecution. (5.) That apart, it appears that the defacto complainant filed the petition of complaint on 10.3.99, where she stated that she only came to know about the alleged incident when she took the victim girl to a doctor who opined that the said victim girl was carrying for three months. According to the defacto complainant, on her enquiry the victim girl suggested by her gesture that said pregnancy was caused by the accused/appellant as he committed forcible sexual intercourse with the victim girl. So the fact remains that the defacto cpmplainant has claimed that she became aware about the incident only when the victim girl was carrying for three months. I have already pointed out this petition of complaint was lodged only on 10.3.99. But if we look into the evidence of P.W. 17 Doctor Dipak Kumar Giri then it will appear that he has stated in his evidence that on 14.3.99 he examined the victim girl clinically and at that time he found on examination that she was pregnant of about eight months. This statement of the Doctor clearly suggests that the defacto complainant made a deliberate false statement before the Court that she came to know about the incident when the victim girl was carrying for three months. This statement cannot but be said to be false as the Doctor has clearly opined that in the month of March, 99 the victim girl was carrying for eight months. It is needless to point out that pregnancy of eight months cannot be suppressed by a! woman. Naturally it leads us to the conclusion that the defacto complainant and her family members were very much aware about the pregnancy of the v ctim girl than what has been claimed in the petition of complaint. It is needless to point out that pregnancy of eight months cannot be suppressed by a! woman. Naturally it leads us to the conclusion that the defacto complainant and her family members were very much aware about the pregnancy of the v ctim girl than what has been claimed in the petition of complaint. There is no reason whatsoever for the defacto complainant and others as to why inspite of such pregnancy of eight months, they did not take any step against the accused/ appellant for his alleged commission of rape on the victim girl. This fact certainly goes against the case of the prosecution and I have got no hesitation to hold that there was unusual delay in lodging the F.I.R. by the defacto complainant and the said delay has not at all been explained. (6.) In order to substantiate the claim of the alleged commission of rape on the victim girl by the accused/appellant, the prosecution has set up a story that the matter was discussed in the village salish where in presence of many villagers, the victim girl pointed out that it was the accused/appellant who was guilty of committing rape on her, resulting for her pregnancy. It has further been claimed by the prosecution that in the said salish a salishnama was written and it was duly signed by the persons concerned and it was decided that the accused/appellant would pay Rs. 20,000/- to the victim girl and in fact he paid Rs. 500/- in advance and promised to pay the balance amount in future. By this claim, the prosecution wanted to impress on the Court that there was an extra judicial confession by the accused/appellant, so far as the alleged incident is concerned. But it is the settled principle that extra judicial confession is a very weak piece of evidence and cannot be the basis of conviction without having sufficient and reliable corroboration. If we look into the evidence on the side of the prosecution, then it will appear that prosecution has mostly tried to prove its claim by way of adducing evidence of the relatives of the defacto complainant. In this respect, my attention has been drawn in respect of the evidence of the P.W. 4 Rustam Ali Biswas, P.W. 8 Chatur Ali Biswas and P.W. 7 Kajal Sk. In this respect, my attention has been drawn in respect of the evidence of the P.W. 4 Rustam Ali Biswas, P.W. 8 Chatur Ali Biswas and P.W. 7 Kajal Sk. But it appears that those persons were not mentioned in the list of witnesses, as submitted by the defacto complainant at the time of filing the petition of complaint. If actually they were present, then under normal circumstances it is expected that their names would have been mentioned in the petition of complaint. There is no explanation for that. It can further be stated that P.W. 8 Chatur Ali Biswas is a close relative of the defacto complainant and as such, it goes without saying that he is very much interested in the cause of the defacto complainant and as such, I think that it will not be prudent to place reliance upon his evidence. Learned Sessions Judge relied upon the evidence of P.W. 7 Kajal Sk. and P.W. 9 Bhaskar Ali Biswas in believing the prosecution claim of the salish. But it appears from the evidence of the Investigating Officer that those two witnesses were not at all examined by the Investigating Officer during investigation, As such, the evidence of these two persons cannot be taken into consideration at all. In this respect, I rely upon the decision reported in (2003) 3 SCC 175 Vimal Suresh Kamble v. Chaluverapinake Apal S.P. and Anr., wherein the Honble Apex Court has clearly held that when a witness did not state a particular fact to the Investigating Officer and the prosecution seeks to prove the said fact through that witness then the evidence of that witness regarding the said fact has got no significance at all and must be ignored. As I have pointed out that most of those witnesses were either not mentioned in the witness list of the petition of complaint or a very close relative, or their statements were not recorded by the I.O. during investigation, so, those statements cannot be taken into consideration at the time of trial. Learned Additional Public Prosecutor by citing decision reported in 2004 SCC (Cr) 851 Dhanaj Singh alias Shera and Ors. v. State of Punjab has claimed that defect in investigation cannot be fatal if the other testimony is found credible and cogent. Learned Additional Public Prosecutor by citing decision reported in 2004 SCC (Cr) 851 Dhanaj Singh alias Shera and Ors. v. State of Punjab has claimed that defect in investigation cannot be fatal if the other testimony is found credible and cogent. There is no dispute about this legal principle as decided by the Honble Apex Court, But it is not a case of defect in the investigation. It is a case where those witnesses were not produced before the I.O. by the defacto complainant and others and as such it speaks a volume against the complainants case and it is not possible to hold that those persons were also present in the alleged salish. If those persons were actually present in the salish then it is expected that they would have come forward before the I.O. for making such statement. There is no reason for the I.O. not to record the statements of those persons, although available. Certainly any defect on the part of the investigating agency can be ignored by the Court provided there are other cogent and credible materials to prove the charge against the accused. But so far as the present case is concerned, I have already pointed out that there are huge loopholes in the prosecution case and as such I think, that this claim of the prosecution that it was a mistake on the part of the I.O. not to examine those persons at the time of investigation, cannot be accepted. To my mind, since these persons did not make any such statement at the time of investigation, so their subsequent evidence before the Court to that effect, must be held to be an afterthought. (7.) That apart, if we look into the statements made by the defacto complainant in the petition of complaint as well as the statement made by the P. W. 5 and others then it will appear that it has been claimed that a salishnama was prepared and concerned persons signed in the same. That salishnama would have been the most important evidence for the purpose of this case. But for reasons best known to the prosecution, said salishnama was not produced before the Court. The Investigating Officer clearly stated in his evidence that the said alleged salishnama was never produced before him during investigation. That salishnama would have been the most important evidence for the purpose of this case. But for reasons best known to the prosecution, said salishnama was not produced before the Court. The Investigating Officer clearly stated in his evidence that the said alleged salishnama was never produced before him during investigation. If there is any existence of the salishnama then it was a duty of the defacto complainant and others to produce the same before the I.O. at the time of investigation. But no such step has been taken and as such the necessary conclusion can be arrived to the extent that there was no existence of such a salishnama as alleged and for that reason it was not produced before the I.O. So, due to all these things, I am of opinion that the prosecution has hopelessly failed to prove the existence of any alleged salishnama whereby the accused allegedly confessed his guilty beforethe villagers. To my mind, learned Sessions Judge was not justified in placing reliance upon this claim of the prosecution. (8.) Learned Additional Public Prosecutor, by citing the decision reported in 2004 SCC (Cr) 44 : 2004 C Cr LR (SC) 34, Tulshidas Kanotkar v. State of Goa, argued that as the victim girl was a physically handicapped person and as taking advantage of that position, the accused/appellant committed rape on her, so the Court should ignore the fact that the victim girl, being a major woman, actually consented to the sexual intercourse with the accused/appellant. By this he wanted to impress upon this Court that the victim girl was not at all in a position to understand the consequence of the said act and us such, the accused took advantage of the same and committed sexual intercourse with her. Learned Trial Judge also, in his judgment, observed much about this alleged helpless condition of the victim girl in having sexual intercourse with the accused/ appellant. I have perused the said decision. It appears that the fact of the said case is completely different with the fact of the case in our hand. In the said case the victim was a mentally deranged woman and as such Honble Supreme Court was of the opinion that her consent was irrelevant. I have perused the said decision. It appears that the fact of the said case is completely different with the fact of the case in our hand. In the said case the victim was a mentally deranged woman and as such Honble Supreme Court was of the opinion that her consent was irrelevant. But so far as the case in our hand is concerned, it appears that the victim girl was not a mentally deranged person, She is undoubtedly deaf and dumb. But that does not mean that she was unable to understand the consequences of the sexual intercourse which she allegedly had with the accused/appellant. The statement of the victim girl regarding the manner in which the alleged incident took place, even if we accept the same to be true, necessarily gives rise to an indication that she must have consented in having such sexual intercourse. As such, accused/ appellant, even if it is held, that he had sexual intercourse with the victim girl, cannot be said to be guilty for the commission of the offence of rape. (9.) Learned Additional Public Prosecutor further argued by placing reliance upon AIR 1996 SC 1393 State of Punjab v. Gurmit Singh and Ors. by pointing out that there is no bar for the Court to act on the sole testimony of the victim girl without looking for corroboration. There is no dispute regarding the principle as laid down by the Honble Supreme Court. But it has been laid down in the said decision that such testimony of the victim girl can be relied upon provided her testimony inspires confidence and is found to be reliable. But so far as the present case is concerned, I have already pointed out that the statement made by the victim girl that the accused had committed sexual intercourse with her against her will is neither reliable nor believable. So, this decision cannot be of any help for the prosecution, so far as the present case is concerned. (10.) Learned Additional Public Prosecutor has further argued that simply on the ground of delay the prosecution case should not be disbelieved and in this respect he has relied upon the decision reported in 2004 SCC (Cr) 44 (supra). Undoubtedly, simply because there is a delay, the prosecution case should not be disbelieved. But the law of prudence requires that this delay must be explained satisfactorily. Undoubtedly, simply because there is a delay, the prosecution case should not be disbelieved. But the law of prudence requires that this delay must be explained satisfactorily. If the delay is explained properly, then there cannot be any reason to disbelieve the prosecution case on the ground of delay. The main question that is to be looked into is, whether that delay has been sufficiently explained or not. I have already pointed out that when the petition of complaint was lodged, at that time the victim girl was carrying for about eight months. So it appears that for this long eight months the defacto complainant waited without taking any step regarding the alleged incident. In my discussion above, I have already pointed out that there was no satisfactory explanation regarding this long delay of eight months. I have also pointed out that the defacto complainant tried to explain the delay by claiming that she came to know about the pregnancy of the victim girl when she was carrying for three months. But I have already pointed out that the evidence of the doctor falsifies this claim of the defacto complainant. There is no doubt that when the petition of complaint was lodged, at that time the victim girl was carrying for eight months. So it is clear that the defacto complainant has tried deliberately to suppress the truth from the Court in order to secure conviction of the accused/ appellant. As such, it is not permissible to rely upon the statement of such a defacto complainant and I have got no hesitation to hold that this long delay has not at all been explained by the defacto complainant. To my mind, this unusual delay certainly speaks volume against the prosecution case and I have got no hesitation to hold that the learned Trial Judge is not at all justified in ignoring this fact. (11.) Therefore from my above discussion, I am of opinion that the prosecution case suffers from innumerable discrepancies and the version of the victim girl as well as of the defacto complainant about the incident of rape bristles with improbabilities, improvements and exaggeration. (11.) Therefore from my above discussion, I am of opinion that the prosecution case suffers from innumerable discrepancies and the version of the victim girl as well as of the defacto complainant about the incident of rape bristles with improbabilities, improvements and exaggeration. Simply because the victim girl is a deaf and dumb woman that cannot be a ground for ignoring all those improbabilities, as it transpires, from the evidence on record, particularly when there is nothing to show that the victim girl was unable to understand the consequences of the act, which allegedly was done on her, by the accused/ appellant. To my mind, the learned Sessions Judge was not at all justified in ignoring all those discrepancies simply by observing the physical handicapness of the victim girl. Since, I have already pointed out that the victim girl was in a position to understand the consequences of the alleged act, and since it appears from the other surrounding circumstances that the alleged incident, if at all happened, as claimed by the victim, must have taken place with her consent, the learned Sessions Judge was not at all justified in holding the accused/ appellants guilty for the offence under Section 376, I.P.C. The learned trial judge also was not justified in ignoring the glaring discrepancies in the evidence of the prosecution witnesses as pointed out above. From the materials on record, I have got no hesitation to hold that the prosecution has failed to prove the charge against the accused/appellant beyond reasonable doubt and as such the accused must get the benefit of doubt due to all those discrepancies, so far as this case is concerned. As such, I hold that as the prosecution has failed to prove the charge against the accused, so he is entitled to be acquitted and the order of conviction, as passed by the learned Trial Judge on the accused/appellant should be set aside. (12.) In the result, the appeal is allowed on contest. The order of conviction, as passed by the learned Sessions Judge, Nadia in Sessions Trial No. VI of April, 2001 arising out of Sessions case No. 16 of November, 2000, is set aside. The accused is held not guilty of the offence charged with and is acquitted. He be released at once, if not wanted in any other case. The order of conviction, as passed by the learned Sessions Judge, Nadia in Sessions Trial No. VI of April, 2001 arising out of Sessions case No. 16 of November, 2000, is set aside. The accused is held not guilty of the offence charged with and is acquitted. He be released at once, if not wanted in any other case. (13.) Send a copy of this judgment along with the Lower Court Record to the Court below at once for his information and taking immediate action.