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Gauhati High Court · body

2005 DIGILAW 768 (GAU)

Atul Borgohain v. State of Assam

2005-11-09

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. The appeal is directed against the judgment and order dated 04.08.04 passed by the learned Sessions Judge, Jorhat in Session Case No. 1(JJ)/03 arising out of GR Case No. 908 of 1999 Jorhat PS. Case No. 443 of 1999 convicting the Appellant Under Section 376 IPC with the sentence of 10 years R.I. and fine of Rs. 1,000/- in default another them of R.I. for one month and Under Section 448 IPC with the sentence of R.I. for one year and also to pay a fine of Rs. 500/-, in default, another R.I. for fifteen days. Both the sentences are to run concurrently. Be it stated here that the Appellant at the time of conviction was serving as Second Officer, Chinnamara Police Out Post, Jorhat. 2. The aforesaid police case subsequently registered as G.R. Case and Sessions Case was on the basis of the FIR lodged by one Smt. Punya Saikia on 21.10.99 with Jorhat P.S., after 7 days of the alleged incident. As per the allegations made in the FIR, her husband was arrested by the police of Chinnamara Out Post about two weeks back and since then she had been living with her two children in a rented house at Jakhalapar. At the time of arrest of her husband she got introduced with the Appellant, the Second Officer of the Out Post. Further story narrated in the FIR is that the Appellant assured her the release of her husband and asked her to give something in return. The incident narrated in the FIR is that on 14.10.99 at around 9.00 P.M. the Appellant came to her residence and asked her to open the door and thereafter entering into her room committed rape on her against her will. According to her she did not raise any hue and cry out of shame. On 15.10.99 the landlord asked her to vacate the house and thereafter she took another house on rent at Latif Nagar and started residing there. On 20.10.99 at about 3.00 P.M. the Appellant once again came to her residence and asked her to sleep with him. But she refused to do so and went out of her room. After sometime the Officer-in-Charge of Chinnamara Out Post came to her house and took the Appellant away. She narrated the incident to him. 3. On 20.10.99 at about 3.00 P.M. the Appellant once again came to her residence and asked her to sleep with him. But she refused to do so and went out of her room. After sometime the Officer-in-Charge of Chinnamara Out Post came to her house and took the Appellant away. She narrated the incident to him. 3. On the basis of the aforesaid FIR, the police investigated the case and thereafter submitted the charge sheet against the Appellant. During the trial the prosecution examined altogether 7 witnesses and the Appellant was examined Under Section 313 of the Code of Criminal Procedure. No other witness was examined on behalf of the defence. 4. There is no eye witness to the incident. It is primarily on the basis of the deposition made by said Smti Punya Saikia (hereinafter referred as the victim woman) the learned Sessions Judge has convicted the Appellant. None of the other witnesses has stated anything about the alleged incident. The Medical Officer who had examined the victim woman opined that there was no sign of rape as well as no sine of injury on the victim woman. 5. Various grounds were raised on behalf of the Appellant including the ground of delay in lodging the FIR. Although the alleged incident occurred on 14.10.99, the FIR was lodged on 21.10.99. There was no explanation of delay in lodging the FIR. 6. The learned Sessions Judge by the impugned judgment and order has convicted the Appellant as aforesaid. As regards the delay in lodging the FIR it has been held that mere delay in lodging the FIR cannot lead to the inference of making out a false case. It has been held that the offence Under Section 376 IPC stands at a different footing from that of the other offence and the story of the prosecution cannot be disbelieved and/or rejected solely on the ground of delay in lodging the FIR without plausible explanation. The learned Sessions Judge has opined that the procedural defects in all circumstances cannot demolish the otherwise well founded prosecution case, more so when it is an offence of sexual assault on a helpless woman. Various case laws have been discussed towards negating the argument of the defence that the delay in lodging the FIR was fatal and at least cast a serious doubt on the veracity of the statement made by the victim woman. 7. Various case laws have been discussed towards negating the argument of the defence that the delay in lodging the FIR was fatal and at least cast a serious doubt on the veracity of the statement made by the victim woman. 7. Although there is no independent eye witness to the incident, the learned Sessions Judge has relied upon the statement made by the victim woman and upon discussion of the facts and circumstances of the case and the case laws discussed in the impugned judgment and order has held the Appellant to be guilty of the offence Under Section 376 and 448 IPC and has sentenced him as indicated above. 8. Mr. R.P. Sharma, learned Sr. Counsel assisted by Mr. H.K. Baishya, learned Counsel appearing for the Appellant, submitted that on the face of the records the story narrated in the FIR is highly improbable. He submitted that since the husband of the victim woman was arrested by the police of Chinnamara Out Post and the Appellant was In-Charge of the investigation, the victim woman and her husband wanted favour from him and on his refusal to do so, the story of rape was made out against him. He submitted that had it been a case of rape, there would have been some resistance from the victim woman leading to some noise and injury on her body and that having regard to the place of residence, other witnesses would have come to know about the incident. According to Mr. Sharma another probability of the concocted story is that the Officer-in-Charge, Chinnamara Out Post was not in good terms with the Appellant who was the Second Officer of the Out Post. Pointing out to the medical evidence, he submitted that it is not a case of rape and that it would be too dangerous to rely on the story narrated by the prosecutrix. He also put emphasis on the un-explained delay in lodging the FIR. He placed on reliance on the following decisions: (1) Satpaul v. Delhi Administration, (1976) 1 SCC 727 (2) Surjan and other v. State of M.P. AIR 2002 SC 476 (3) Nabin Borah v. State of Assam, 2004 (1) GLT 478 9. Countering the above argument made on behalf of the Appellant, Mr. He placed on reliance on the following decisions: (1) Satpaul v. Delhi Administration, (1976) 1 SCC 727 (2) Surjan and other v. State of M.P. AIR 2002 SC 476 (3) Nabin Borah v. State of Assam, 2004 (1) GLT 478 9. Countering the above argument made on behalf of the Appellant, Mr. K. Munir, learned P.P., Assam submitted that the learned Sessions Judge upon discussion of the evidence on record and facts and circumstances involved in the case having passed the sentence, no interference is called for to the same. He submitted that as has been discussed in the judgment and order, there might be delay in lodging the FIR due to various reasons, more particularly in an offence Under Section 376 IPC. He submitted that normally in such type of offence no eye witness can be expected and that in absence of any motive attributed to the prosecutrix, her deposition cannot be disbelieved. 10. I have given my anxious consideration to the submission made by the learned Counsel for the parties and the entire materials on record. The incident narrated in the FIR has been noticed above. In the FIR it is the simple case of the victim woman that on 14.10.99 the Appellant entered her house at about 9.00 P.M. and committed the offence on her against her will. Being aware that such incident naturally leads to resistance and some noise including shouting of the victim, the victim woman in her FIR explained those circumstances by stating that she did not raise any hue and cry out of shame. In the FIR nothing was stated as to how the incident was against her will and as to whether any force was applied by the Appellant. 11. Similarly about the incident of 20.10.99 also there is no mention in the FIR as to whether the Appellant had applied any force while asking her to sleep with him. The only statement made in the FIR was that the Appellant had gone to her place and asked to sleep with him, but she refused to do so and went out of the room. It was at that moment the Officer-in-Charge of the Out Post came to her house and took away the Appellant. In the FIR she stated that she narrated the entire incident to the said Officer-in-Charge who incidentally is the PW 5. 12. It was at that moment the Officer-in-Charge of the Out Post came to her house and took away the Appellant. In the FIR she stated that she narrated the entire incident to the said Officer-in-Charge who incidentally is the PW 5. 12. As against the aforesaid story narrated in the FIR, the victim woman in her statement made during investigation enlarged the scope and ambit of the alleged offence committed by the Appellant by stating the following. 13. The husband of the victim woman, Shri Manik Saikia was arrested in connection with a case of theft of cable wire. She was staying in a rented house with her two minor children, elder being six years and the younger 2/4 years of age. She resided in the rented house of one Shri Bhupen Borah. As per her own statement the landlord and another lady namely Smti Renu used to stay in the room alongside her own room. Her husband was arrested on 06.10.99 in connection with theft of cable and was sent to jail. She used to visit Chinnamara Out Post in connection with the said case and in absence of the Officer-in-Charge, i.e. PW 5 used to meet the Appellant. She came to know that the investigation of the case was entrusted to the Appellant. On enquiry as to how long her husband would remain in jail, the Appellant told her that he would save her husband provided she would give something to her. She though of such demand to be in terms of money and accordingly assured him of doing something. 14. On 14.10.99 while she was sleeping along with her two minor sons, the Appellant came to her residence on a scooter and knocked the doors. On being asked as to who he was, the Appellant disclosed his identity. When the victim woman asked him what made him to come at night, he informed her that there was news of her husband and accordingly she opened the door. She switched on the light and asked him to sit on the chair. After sitting for a while, the Appellant went out of her house. However, he once again returned and this time sat on the bed. Suddenly electricity went off and she lighted a candle. The Appellant was in his official dress at that time. She switched on the light and asked him to sit on the chair. After sitting for a while, the Appellant went out of her house. However, he once again returned and this time sat on the bed. Suddenly electricity went off and she lighted a candle. The Appellant was in his official dress at that time. When the victim woman wanted to go out, of the room, the Appellant stood by the door and grabbing her he took her to bed. At that time her younger son was with her and was asleep. The Appellant took the child from her and put him on the bed. Thereafter he committed rape on her. When she told him that she would shout, he got hold of her neck and threatened her that he would kill her if any noise was made. As a result she could not do anything. It was in that manner the Appellant committed the offence on her. 15. She further stated in her deposition that after committing the crime the Appellant slept for a while and she could not make any hue and cry being ashamed of herself. However, the other inmates of the house could come to know about the incident. During the time when the Appellant was sleeping on the bed she kept on sitting on the chair. After about half and hour or so, the Appellant left the place. 16. On 15.10.99, the landlord asked her to vacate the house and accordingly she shifted to Latif Nagar to another rented house. On 17.10.99 at about 4.00 P.M. the Appellant once again came to her house. On that day, her sister was with her. Entering to her house, the Appellant sat on her bed and it was witnessed by one Smti Rehena Begum, PW 3 who was declared hostile. One Smti Jogomaya Gogoi also witnessed the same. Be it stated here that said Jogomaya Gogoi was not examined by the prosecution during trial, although her statement was recorded during investigation. Likewise, the sister of the victim was also not examined either during investigation or during trial. The Appellant slept in her house for about two hours and thereafter about 6.00 P.M. he left the house of the victim woman. 17. Likewise, the sister of the victim was also not examined either during investigation or during trial. The Appellant slept in her house for about two hours and thereafter about 6.00 P.M. he left the house of the victim woman. 17. The victim woman further stated in her deposition that on 20.10.99 the Appellant once again came to her house at about 3.00 P.M. and wanted to repeat the offence once again. She refused and asked the Appellant to go out of the room and it was at the moment the PW 5 came to her house. The nearby people witnessed the same. As regards the FIR, she stated that on 21.10.99 she met her husband in jail and thereafter she lodged the FIR as per his advice. 18. During the trial, the victim woman who was examined as PW 1 deviated from her earlier stand as per deposition made during the investigation and stated that immediately on opening of the door on the fateful day the Appellant after entering her room grabbed her and committed rape on her. She wanted to shout but she was put to fear by the Appellant. After committing the crime he left her house and she did not tell that to anyone out of shame. On 20.11.99 at about 3.00 P.M. the Appellant coming to her house once again applied force to repeat the offence and grabbed her. This time she could somehow rescue herself and came out of the house and it was at that moment the Officer-in-Charge came to her house and took the Appellant away from her house. She lodged the FIR and put her signature on the same. She also stated that she was medically examined. 19. In the cross examination she stated that the FIR was lodged after discussing the incident with her husband. She admitted that there was no injury on her body and that her wearing clothes were not seized by the police. She also admitted that she did not explain the delay in lodging the FIR either in the FIR itself or in the statement made before the Magistrate. She further stated that she made request to the Appellant for furnishing the report so as to entitle her husband to be released on bail. However, the Appellant stated to her that it would be entirely upto the Magistrate. She further stated that she made request to the Appellant for furnishing the report so as to entitle her husband to be released on bail. However, the Appellant stated to her that it would be entirely upto the Magistrate. She denied the suggestion that the Appellant was booked in a false case since he did not render any help in the case in which her husband was involved. She also denied the suggestion that no rape was committed on her and 20.10.99 also the Appellant did not go to her house. The suggestion that since the entire incident was concocted one, salme was not narrated to the neighbours, was also denied. 20. The statement of the victim woman, i.e. the PW 1, was also recorded Under Section 164 Code of Criminal Procedure in her statement she stated that on 14.10.99 at about 9.00 P.M. the Appellant went to her house and asked to open the door. She accordingly opened the door and the Appellant entering into the room committed the offence on her by grabbing her and putting her down on the bed. As per the said statement she was stripped off her wearing clothes by the Appellant and when she wanted to shout the Appellant threatened to kill her and thus out of fear she could not shout. The Appellant went away after committing the crime. Thereafter she shifted to another rented house and on 20.10.99 at about 3.00 P.M. the Appellant had gone to her new residence and wanted to repeat that crime. However, she could save herself by going out of the house. It was at that moment, he came to her residence and arrested the Appellant. On the next date she lodged the FIR. 21. From the above statements on four different occasions made by the victim woman, the apparent contradictions are noteworthy. In the FIR she simply stated that the crime was committed by the Appellant against her will without highlighting anything as to how the same was committed. She also did not show anything about the purported force applied by the Appellant on her, although later on she tried to say so in her deposition made during investigation. In fact, during investigation she elaborated the thing. In the FIR while narrating the alleged incident of 20.10.99, she did not say anything about applying force by the Appellant. She also did not show anything about the purported force applied by the Appellant on her, although later on she tried to say so in her deposition made during investigation. In fact, during investigation she elaborated the thing. In the FIR while narrating the alleged incident of 20.10.99, she did not say anything about applying force by the Appellant. Contrary to her stand that the incident was not divulged to anyone, in her deposition during investigation she clearly stated that the inmates of the other rooms adjoining her room came to know about the incident. In her said deposition she stated that after the incident, the Appellant kept sleeping on her bed and she remained seated on a chair. Even if the story of the victim woman is to be believed that she could not make any hue and cry out of fear, in the normal circumstances one would have raised hue and cry after being relieved of such fear. As per her own statement during the investigation, the Appellant slept on her bed at least for half an hour after committing the offence and she also remained seated on the chair. In the normal circumstances one would have reported the matter to the other inmates of the house so close to her. 22. There is also no explanation as to why she opened the door for the second time when, as per her own version, the Appellant after entering into her room sat for a while and then went out. In the normal circumstances one would not have opened the door more so when she was alone with her minor children. Regarding the second visit of the Appellant to her house about which she narrated in her deposition during investigation, she did not make any mention of the same in the statement recorded Under Section 164 Code of Criminal Procedure and also in her deposition during the trial. Such contradictions on the part of the PW 1 has made the prosecution case doubtful. 23. The PW 6, Dr. A.K. Borah, Senior Medical and Health Officer of Jorhat Civil Hospital who examined the victim woman on 22.10.99 clearly opined that there was no sign of rape on the victim woman. Such contradictions on the part of the PW 1 has made the prosecution case doubtful. 23. The PW 6, Dr. A.K. Borah, Senior Medical and Health Officer of Jorhat Civil Hospital who examined the victim woman on 22.10.99 clearly opined that there was no sign of rape on the victim woman. It is true that the victim woman being a married lady with two children and the incident having occurred on 14.10.99, it could legitimately be argued that after about a week there could not have been any sign of rape on her. However, the Medical Officer also opined that there was no sign of injury on her body. In case of rape, in the normal circumstances there will be resistance from the victim resulting in likely injury to her body. The PW 1 in her statement recorded Under Section 164 Code of Criminal Procedure stated about application of force by the Appellant and stripping her off the wearing clothes. In such an eventuality injury on her body was not unlikely. It is also hard to believe that the victim woman surrender to that extent without there being any hue and cry and/or at least some noise so as to be heard by the inmates, namely the PW 2 and PW 4 whose rooms in which they resided were admittedly just adjacent to the victim's room in the same house. All these factors made the prosecution case highly improbable. 24. As stated above, none of the above witnesses has stated about the incident. PW 2, the lady who used to stay in the room by the side of the room in which the victim woman used to stay, stated in her deposition during the trial that the Appellant on the day of the incident came on a motorcycle to the residence of the victim woman and went out after sometime. She stated that there were three rooms in the house. The landlord used to stay in the middle room and the remaining two rooms were occupied by the victim woman and the PW 2 respectively. In the cross examination, she could not identify the date on which the Appellant purportedly visited the house of the prosecutrix. She denied the suggestions that since the relationship with the victim woman was good, she deposed falsely that she had seen the Appellant visiting the house of the victim woman. In the cross examination, she could not identify the date on which the Appellant purportedly visited the house of the prosecutrix. She denied the suggestions that since the relationship with the victim woman was good, she deposed falsely that she had seen the Appellant visiting the house of the victim woman. This witness in her deposition during investigation stated that the three rooms were adjacent and she saw the person in front of the room of the victim woman at about 8.30 P.M. coming on a scooter and out of suspicion as to what could be the occasion for a person to come to the house of the victim woman at night and that too when her husband was absent, she contracted the wife of the landlord and on the basis of her permission she peeped through the door and saw the Appellant. Like that of the PW 1 she also stated that the Appellant went out of the house at the first instance and again came at around 9.30 P.M. She could see the Appellant going out of the house at 12 O'clock at night. Thus the Appellant who allegedly committed rape on the victim woman remained in her house for about three hours which in case of a rape is quite unnatural. This will go to suggest that the victim woman was a consenting party. 25. During the investigation the landlord namely Shri Bhupen Borah, PW 4 was examined and he clearly stated that he had no knowledge about the incident allegedly committed on the victim woman and that she also did not report anything to him. His wife Smti Deepti Borah was also examined during investigation, but was not examined by the prosecution during trial. Her deposition during investigation makes interesting reading. According to her, on the date of the incident, a person came to the room in which of the victim woman at night. He had come on a scooter. She reported the same to PW 2) She also asked the PW 1, the victim woman, as to who had come to her and the victim woman stated that it was the Second Officer of Chinnamara Out Post. Thereafter the PW 2 peeped through the door of the victim woman's room. She stated that she was not informed as to what she (PW2) had seen. 26. Thereafter the PW 2 peeped through the door of the victim woman's room. She stated that she was not informed as to what she (PW2) had seen. 26. In her deposition she further stated that she asked the victim woman to vacate the room on the ground of visit of other person to her room at a time when her husband was not at home. Accordingly the victim woman vacated the room on the next day. This statement of the wife of the landlord suggested that it was not a case of rape and at best, the victim woman was a consenting party and it was on that count she was asked to vacate the room which she readily obliged. Another interesting feature of the case to be noted is the statement of the PW3 who allegedly entered the house of the victim woman at about 3.00 P.M. Although she was declared to be a hostile witness, her evidence cannot be discarded altogether. She categorically stated that she had not seen the Appellant visiting the new rented house of the victim woman on 20.10.99. It is in this context learned Counsel for the Appellant placed reliance on the decision in the case of Satpaul (supra). 27. I now discuss the evidence of the Officer-in-Charge of Chinnamara Out post who was examined as PW 5. As against the claim of the victim woman that on 20.10.99 this witness had grabbed hold of the Appellant and took him away, this witness stated in his deposition made during the trial that on 20.10.99 he visited the house of the victim woman on receipt of telephone call that the Appellant had entered the house of the victim woman. In his visit he found that the door was open. Seeing him, the Appellant left the house of the victim woman. Thereafter the Officer-in-Charge asked the victim to lodge an FIR. Thus, the apparent contradictions in the story made out by the victim woman are noteworthy. As per her statement the Appellant was grabbed by the Officer-in-Charge, i.e. the PW 5 and was arrested, but PW 5 himself stated in his deposition that the Appellant went out of the house of his own. Thus, the apparent contradictions in the story made out by the victim woman are noteworthy. As per her statement the Appellant was grabbed by the Officer-in-Charge, i.e. the PW 5 and was arrested, but PW 5 himself stated in his deposition that the Appellant went out of the house of his own. Secondly, as against the statement of the victim woman that she had lodged the FIR after discussing the incident with her husband, PW 5 in his deposition stated that it is he who had asked the victim woman to lodge the FIR. Thus, the contradictions coupled with unexplained delay in lodging the FIR made the prosecution case highly improbable. 28. The Appellant in his statement made Under Section 313 Code of Criminal Procedure stated that he had been falsely implicated in a cooked up case and that he had visited the house of the victim woman on duty. He also stated that he was not in good terms with PW 5, i.e. the Officer-in-Charge of the Out Post, at whose behest the case was made up against him. 29. In the case of Nobin Ch. Borah (supra) this Court on the basis of the solitary testimony of the prosecutrix which did not corroborate with the medical evidence coupled with 14 days unexplained delay in lodging the FIR refused to believe the case of the prosecution and the conviction and sentence was set aside. 30. In the case of Surjan and Ors. (supra), the Apex Court noticing that inordinate delay in lodging the FIR before the police (10 days) had not been attempted to explain even when the prosecutrix was examined as a witness held that in a case where the accused should be visited with minimum sentence of 10 years RI, the Court cannot afford to act on the uncorroborated testimony of the prosecutrix unless the evidence is wholly reliable. Looking at the testimony of the prosecutrix from all the different angles highlighted in the judgment, the Apex Court declined to hold that her testimony was wholly reliable. Accordingly the Apex Court refused to confirm the conviction and sentence passed on the Appellant. 31. In the instant case also the apparent contradictions on the own statements of the prosecutrix have been noted above. It is solely on the basis of her statements, the trial Court has convicted the Appellant. Accordingly the Apex Court refused to confirm the conviction and sentence passed on the Appellant. 31. In the instant case also the apparent contradictions on the own statements of the prosecutrix have been noted above. It is solely on the basis of her statements, the trial Court has convicted the Appellant. Towards such conviction of the Appellant, the learned Sessions Judge placed reliance on certain decisions as indicated in the judgment. There is no quarrel regarding proposition of law discussed and reflected in the said judgments. However, it will have to be borne in mind that every decision is rendered in the background of facts of that case. The ratio of any decision must be background of facts of that case. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it see Lord Hulsburry in Quinn v. Leathern, 1901 ACC 495. 32. In the case of Amand Kumar and another v. State of Haryana reported in AIR 2004 SC 827 , the Apex Court observed that in order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exists. Surrounding circumstances many tie throw beacon light on that aspect. 33. In the aforesaid case though the prosecutrix version in the Court was of the rape but when the same was compared with one given during investigation, certain irreconcilable discrepancies were noticed. The evidence regarding actual commission of rape was at variance from what was recorded by police during evidence. 34. As in the instant case, in the said case also different versions were given by the prosecutrix not corroborated by other witnesses. The evidence regarding actual commission of rape was at variance from what was recorded by police during evidence. 34. As in the instant case, in the said case also different versions were given by the prosecutrix not corroborated by other witnesses. Noticing that there was no material to show that the accused were determined to have sexual intercourse in all events coupled with the aforesaid factors, the Apex Court was of the opinion that the case was not within the purview of the ingredients of Section 376 IPC. 35. From the aforesaid discussions of evidences, I am of the considered opinion that it cannot be said to be an offence of rape established against the Appellant beyond all reasonable doubt. Even if the story of the prosecution is to be believed, there is also no ingredient of Section 448 IPC. Since the prosecution has failed to establish the offence against the Appellant beyond all reasonable doubt and since the whole basis of the conviction of the Appellant is on the version of the story narrated by the prosecutrix which is at variance as discussed above, I am of the considered opinion that it is not a case of establishing the guilt of the Appellant beyond all reasonable doubt. Consequently, he is entitled to get benefit of doubt. 36. In view of the above, the appeal succeeds and the impugned judgment and order dated 04.08.04 convicting and sentencing the Appellant in Sessions Case No. 1(JJ)/02 arising out of GR Case No. 908 of 1999 Jorhat P.S. Case No. 443 of 1999 convicting the Appellant Under Section 376 and 448 IPC is liable to be set aside and quashed which I accordingly do. 37. The appeal stands allowed. The impugned judgment and order stands set aside and quashed and the Appellant is acquitted. The Appellant be set at liberty forthwith, if not wanted in connection with any other case. Send down the LCR immediately along with a copy of this judgment. Appeal allowed.