Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 707 (HP)

Hukam Chand alias Monu v. State of H. P.

2014-06-03

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Rajiv Sharma, Judge This appeal is instituted against the judgment 12.9.2008, whereby the appellant/accused (hereinafter referred to as the “accused” for the sake of convenience) was convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/-and in default of payment of fine to further undergo rigorous imprisonment for a period of one year under Section 376 of the Indian Penal Code and to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year under Section 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He was acquitted under Section 201 of the Indian Penal Code. 2. Case of the prosecution, in a nut-shell, is that on 27.8.2007, at about 7.00/7.30 A.M., at village Behna (Pandroh) the accused committed rape on the prosecutrix, who was nine years old. The prosecutrix belonged to Scheduled caste, whereas the accused belonged to Rajput caste. The accused used his position to exploit the prosecutrix sexually and thereby committed offence under Section 3(xiii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the “SC & ST Act” for the sake convenience). The prosecutrix was medically examined. The accused was also medically examined. After receipt of the FSL report, the Challan was put up in the court after completing all the codal formalities. 3 The prosecution examined as many as sixteen witnesses in order to support its case. Statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence and claimed trial. He produced three witnesses in his defence. 4 Learned trial Court sentenced and convicted the accused under Section 376 of the Indian Penal Code and under section 3(xii) of the SC & ST Act, whereas acquitted him under Section 201 of the Indian Penal Code vide judgment dated 12.9.2008, as stated hereinabove. Hence, the appeal. 5 Mr. Anoop Chitkara, learned Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 6 Mr. Anup Rattan, learned Additional Advocate General has supported the impugned judgment dated 12.9.2008. 7 We have heard learned counsel for the parties and have also gone through the impugned judgment and record carefully. 8 The prosecutrix appeared as PW1. Anoop Chitkara, learned Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 6 Mr. Anup Rattan, learned Additional Advocate General has supported the impugned judgment dated 12.9.2008. 7 We have heard learned counsel for the parties and have also gone through the impugned judgment and record carefully. 8 The prosecutrix appeared as PW1. According to her, she was studying in 4th class. She knew the accused as his cow shed was near to her house. She did not know about her date of birth. About one year ago, during rainy season, she was sent by her mother to the house of one Suresh Kumar to bring ‘Lassi’. At that time her father had gone to village Panjgai, where he was working as mason. When she was coming back with ‘Lassi’, the accused met her on the way to her house. The accused asked her to go back. She went back as the accused took her by holding her arm to his cowshed. The accused took off his pants and asked her to take off her salwar. She took off her salwar. The accused made her to lie on the gunny bag. The accused put his body on her and did ‘HARKUCH’ with her. She started feeling pain in her vagina and started crying. The accused gagged her mouth with his hand. She felt pain in her stomach and thereafter, the accused sent her back to her house. She put on her salwar. The accused left the place. The blood started oozing from her vagina. She narrated the incident to her mother at home. Her salwar and shirt smeared with blood, which was also noticed by her mother. There was also blood in her vagina. At 12.00 noon, mother of the accused came to the cowshed to feed the cattle. Her mother told her about the incident. The mother of the accused said that she could not say anything about the conduct of the accused. Mother of the accused came in the evening at 5.00 P.M., at her house and asked her mother not to disclose the matter to the public as it would tarnish image of her son. Thereafter, mother of the accused went back. Her father came home at 9.00 P.M.. Her mother told him about the incident. Her father also made enquiries from her about the incident. Thereafter, mother of the accused went back. Her father came home at 9.00 P.M.. Her mother told him about the incident. Her father also made enquiries from her about the incident. She further deposed that her father made a telephonic call to her maternal uncle. Her maternal uncle Hem Raj (Mama) came to their village and called them to come nearby shop in the village. She along with her mother and father went to the shop. They all went in a Jeep to the Police Station Sundernagar and reached there next morning. They lodged the report. She was medically examined by Medical Officer, C.H. Sundernagar. In cross-examination, she deposed that it took about fifteen minutes to reach the house of the accused from her house. The land of the family of the accused was adjoining to their land. The family of the accused had greater holdings than her family. According to her, whenever her family was in dire need of grass, her parents took the same from the land of family of the accused. The mother of the accused was complaining of theft of grass by her mother often from their land, which led to a number of quarrels between the two families. She admitted that her parents were not on visiting terms with the family of the accused. Family of the accused never gave beatings to her family. She failed in 3rd class. She admitted that on the date of incident, her parents had cut grass from the land of parents of the accused. Mother of the accused picked up a quarrel with her mother. The quarrel took place prior to the alleged incident. Her parents and maternal uncle said that they would teach a lesson to the family of the accused. She had not disclosed to the police regarding arrival of mother of the accused at 12.00 noon and 5.00 P.M.. 9 PW2, Roshani Devi, deposed that the prosecutrix is her daughter. Her daughter was studying in 4th class. Schools were closed on account of holidays. She had sent her daughter to the house of Suresh Kumar to bring ‘Lassi’ at about 7.30 A.M. Her daughter came back at 9.30 A.M.. She was perplexed. She had put her hand on her stomach. She noticed blood stains on the back of her shirt. She made enquiries from her. Schools were closed on account of holidays. She had sent her daughter to the house of Suresh Kumar to bring ‘Lassi’ at about 7.30 A.M. Her daughter came back at 9.30 A.M.. She was perplexed. She had put her hand on her stomach. She noticed blood stains on the back of her shirt. She made enquiries from her. Her daughter told her not to give any kind of beatings and only then she would disclose the incident. She assured her daughter. Her daughter told her that the accused took her in his cowshed. He put off her salwar and subjected her to sexual intercourse in the cowshed. The salwar of the prosecutrix was stained with blood. There was swelling on the vagina of the prosecutrix. At 12.00 noon, mother of the accused met her near her cattle shed and then she narrated the incident to her. She asked her not to disclose the matter to anyone in the village. In the evening at 6.00 P.M.., mother of the accused on way back to her house again met her and took assurance from her not to disclose the matter because it would be insulting to both the families. Her husband came back to home at 9.30 P.M.. She disclosed the incident to him. Her husband scolded her for not disclosing the incident immediately. She told him that she was upset. Thereafter, her husband immediately made a telephonic call to her brother, Hem Raj, who called them on the road. Thereafter, they went on foot and visited the Police Station in a Jeep and lodged FIR. Thereafter, her daughter was medically examined by doctor at C.H. Sundernagar. The doctor also took into possession Ext.P1 and Ext.P2 shirt and salwar of her daughter. In cross-examination, she deposed that the accused had landed property in the vicinity. They had 2 bighas of land and father of the accused was having more land than to them. There was shortage of grass normally. She denied the suggestion that she had been cutting grass from the land of the family of the accused. She also denied that her family had strained relations with the family of the accused on account of theft of grass etc.. ‘Lassi’ was thrown near the bushes by the side of the cowshed of the accused. She had shown the spot where the ‘Lassi’ was thrown. She also denied that her family had strained relations with the family of the accused on account of theft of grass etc.. ‘Lassi’ was thrown near the bushes by the side of the cowshed of the accused. She had shown the spot where the ‘Lassi’ was thrown. 10 PW3, Jia Lal, is father of the prosecutrix. He deposed that he had been working as mason at Village Panjgai for the last 6-7 years. In the year 2007, the prosecutrix was studying in 4th class. On 27.8.2007, he had gone to village Panjgai in connection with his work. His wife and children were at home. He came back to home at 9.00/9.30 P.M. His wife told him that the prosecutrix was sent to bring “Lassi” from the house of Suresh Kumar and when she was coming back, accused subjected her to sexual intercourse in his cow shed. He noticed that the clothes of his daughter were stained with blood. He was upset and made telephonic call to Pradhan Babu Ram, who told him that he could come only next morning. Thereafter, he telephoned his brother-in-law Hem Raj, who told that he would come. Hem Raj came at night near his house on the road and from that place they went in a Jeep to Police Station and reached next morning at Police Station Sundernagar. The matter was reported and the prosecutrix was medically examined. In cross-examination, he deposed that he had small holdings. He had not told the police having made a telephonic call to Pradhan Babu Ram. 11 PW4, Babu Ram, deposed that he was Pradhan of Gram Panchayat Nalagh since 2.6.2007. On 27.8.2007, when he was in his in-laws house, he received a telephonic call from Jia Lal, who told him that the accused had committed rape on his daughter. He informed him that he would come next morning. Next morning, he went to the spot, but nobody from the family of the prosecutrix and accused was found there. He came to know that the prosecutrix and her parents had gone to Police Station, Sundernagar. He along with Up Pradhan Banarsa was associated in the investigation. The cowshed of the accused was visited by the police in their presence and the place of incident was also pointed out by the prosecutrix. However, gunny bag was not found in the cattle shed at that time. He along with Up Pradhan Banarsa was associated in the investigation. The cowshed of the accused was visited by the police in their presence and the place of incident was also pointed out by the prosecutrix. However, gunny bag was not found in the cattle shed at that time. In cross-examination, he was confronted with his statement recorded under Section 161 Cr.P.C., wherein he had not informed the police having received the telephonic call from Jia Lal. He admitted that he also belonged to chamar caste. 12 PW5, Suresh Kumar, deposed that on 27.8.2007, the prosecutrix came to his house in the morning to take ‘Lassi’ and after taking the same, she went back. She used to call him “dada”. Later on, when the accused was arrested by the police, he came to know about the incident. In cross-examination, he deposed that he could not tell exactly the time when the prosecutrix came to his house. His house was situated at a distance of 8 kms from the house of the prosecutrix. He also admitted that the land of the family of the accused was adjoining to the cowshed of the prosecutrix. He did not know about the relations between the parties. However, he had heard about the quarrels going on between them due to theft of grass. 13 PW6, Lalman, testified that accused was studying in 10th class in the month of August 2007 in Senior Secondary School Taleli. He issued certificate, Ext.PF showing date of birth of the accused as 10.8.1989. 14 PW7, Dr. Sushma Dutta, deposed that she medically examined the prosecutrix and issued MLC, Ext. PJ. According to her, there was no history of onset menstrual period. Though, the prosecutrix had taken the bath, but she was wearing the same clothes, which she had worn at the time of incident. Her clothes were soiled with some dried fluid like substance. There was no external sign of injury on any part of the body. According to her opinion, the prosecutrix was exposed to sexual act. The probable duration of injuries was within 48 hours. 15 PW8, Jai Lal, deposed that on the request of the police, he handed over the birth certificates of the prosecutrix, Ext.PL and accused, Ext.PM to the police. As per the certificate, date of birth of the prosecutrix was recorded as 3.11.1996 and that of accused as 10.8.1989. The probable duration of injuries was within 48 hours. 15 PW8, Jai Lal, deposed that on the request of the police, he handed over the birth certificates of the prosecutrix, Ext.PL and accused, Ext.PM to the police. As per the certificate, date of birth of the prosecutrix was recorded as 3.11.1996 and that of accused as 10.8.1989. 16 PW9, Pushap Lata, deposed that as per the record, the prosecutrix was admitted in 1st class vide Sr. No.2167 on 29.4.2002. Her date of birth was recorded 3.11.1996. She issued the date of birth certificate, Ext.PN. 17 PW10, Dr. S.K. Fotedar, deposed that on 28.8.2008, at the request of police, vide Ext.PO, he medically examined the accused. According to him, the accused was capable of performing normal intercourse. He issued MLC, Ext.PP. 18 PW11, HC Raj Kumar, deposed that on 28.8.2007, SI Purshotam Chand deposited with him nine sealed parcels with seal impressions “A”, details of which were entered by him in the malkhana register vide Ext.PQ. On 5.9.2007, he sent the case property through Constable Mukesh Kumar to FSL Junga vide R.C. No.83/07, who after depositing the same, handed over the receipt to him. 19 PW12, Constable Mukesh Sharma, deposed that on 5.9.2007, HC Raj Kumar handed over to him nine sealed parcels vide R.C. No.83/07 for being deposited at FSL Junga. He deposited the same at FSL Junga same day. 20 PW13, Dilshad Mohd, deposed that he remained posted as SHO, Police Station, Sundernagar from March 2007 till February 2008. On 28.8.2007, at 6.45 A.M., prosecutrix along with her parents came to the Police Station and lodged FIR, Ext.PA. 21 PW14, SI Purshotam Chand, deposed that he moved an application Ext.PG for the medical examination of the prosecutrix at Civil Hospital Sundernagar and sent the prosecutrix to Civil Hospital, Sundernagar with Lady Constable Meera Devi. He obtained the MLC. He visited the spot on 28.8.2007. He obtained birth certificates of the prosecutrix, Ext.PL and the accused, Ext.PM. At the instance of the prosecutrix, the spot was identified to be cow-shed. He also prepared site plan, Ext.PS. The accused was interrogated and arrested on 28.8.2007. In cross-examination, he deposed that he had not recorded statements of Lady Constable Meera Devi and Sunita Devi. He had not recorded statement of Hem Raj, uncle of the prosecutrix nor he associated him in the investigation. He also prepared site plan, Ext.PS. The accused was interrogated and arrested on 28.8.2007. In cross-examination, he deposed that he had not recorded statements of Lady Constable Meera Devi and Sunita Devi. He had not recorded statement of Hem Raj, uncle of the prosecutrix nor he associated him in the investigation. The land of the family of the accused was adjacent to cowshed. 22 PW15, Hem Raj is maternal uncle of the prosecutrix. According to him, on 27.8.2007, at about 9.30 P.M., he received a telephonic call from his brother-in-law that his daughter aged about 12-13 years had been raped by the accused. Thereafter, he along with his father and brother visited the house of his brother-in-law. He found the prosecutrix weeping. He along with his father, brother, brother-in-law, sister and the prosecutrix went to Police Station Sundernagar and the FIR was lodged. In cross-examination, he admitted that the landed property of father of the accused was nearby the house of the prosecutrix. 23 PW16, Sanjeev Gandhi, deposed that he was posted as SDPO Sundernagar during 2007. He verified the investigation of the case, which was previously carried out by SI Purshotam, Police Station Sundernagar. On 19.11.2007, he examined the case file and on 20.11.2007, he visited the spot. He enquired from the prosecutrix, who narrated the entire episode. On 19.11.2007, when he examined the file, he found that the prosecutrix belonged to Scheduled caste and the accused belonged to Rajput caste. He added provisions of the SC & ST Act. He also added section 201 of the Indian Penal Code for causing dis-appearance of evidence. He also recorded supplementary statements of Babu Ram, Roshani Devi and Nand Lal as per their respective versions. In cross-examination, he deposed that he su motu examined the case file being Supervisory Officer. At the time of lodging the FIR, provisions of the SC & ST Act were not inserted. He admitted that the facts of Section 201 of the Indian Penal Code were already investigated by the Investigating Officer. 24 DW1, Sita Ram, father of the accused, deposed that his wife used to go to cowshed in morning at about 8.00 A.M. daily. On 27.8.2007, his wife went to cow shed at 7.00 A.M.. He admitted that the facts of Section 201 of the Indian Penal Code were already investigated by the Investigating Officer. 24 DW1, Sita Ram, father of the accused, deposed that his wife used to go to cowshed in morning at about 8.00 A.M. daily. On 27.8.2007, his wife went to cow shed at 7.00 A.M.. When she returned, she told him that Roshani Devi was cutting grass and removing maize from their fields and when she was asked by his wife, a quarrel took place between them. The family of the prosecutrix was stealing grass and fuel wood etc. from their fields 25 DW2, Phula Devi, is the mother of the accused. She deposed that on 27.8.2007, when she went to cowshed at 8.00 A.M., she found grass stolen and maize damaged from her fields. When she enquired about it from the mother of the prosecutrix, she started quarrelling with her. On other occasions also, parents of the prosecutrix used to cut grass and steal maize crop and fuel wood from her land. The mother of the prosecutrix had threatened her to teach lesson. 26 DW3, Ganga Ram, deposed that on 27.8.2007, when was going to purchase buffalo from village Ropa, at 8.00 A.M., he noticed that wife of Sita Ram was quarreling with wife of Nand Lal alias Jia Lal. He did not intervene, but heard that they were quarreling regarding grass and fuel wood etc.. 27 According to PW6, Lalman, date of birth of the accused is 10.8.1989 and as per PW9 Pushap Lata, date of birth of the prosecutrix is 3.11.1996. When the prosecutrix entered in the witness box as PW1, she disclosed her age as 9 years. 28 PW1, prosecutrix, testified that she was sent by her mother PW2 Roshani Devi to the house of PW5 Suresh Kumar to bring ‘Lassi’. Her father PW3, Jia Lal, had gone to Village Panjgai, where he was working as mason. According to her, when she was coming back from the house of PW5 Suresh Kumar with ‘Lassi’, the accused met her on the way. He took her to his cowshed by holding her arm. He committed rape on her. She started feeling pain in her private part and started crying. The accused gagged her mouth with his hand. Thereafter, she came back to her house and narrated the incident to her mother. He took her to his cowshed by holding her arm. He committed rape on her. She started feeling pain in her private part and started crying. The accused gagged her mouth with his hand. Thereafter, she came back to her house and narrated the incident to her mother. Her salwar and shirt were stained with blood, which were also noticed by her mother. The blood was also noticed in her private part. When her father came back to home, her mother narrated the incident to him. Her father made a telephonic call to his maternal uncle PW15 Hem Raj, who came to village. Thereafter, they went to Police Station in a jeep. In cross-examination, she categorically stated that whenever her family was in need of grass, her parents took the same from the land of family of the accused. The mother of the accused was complaining of theft of grass often by her family, due to which, several times quarrels took place between the two families. She admitted that her parents were not on visiting terms with the family of the accused. She categorically admitted that on the date of incident, her parents had cut grass from the land of parents of the accused. Mother of the accused picked up a quarrel with her mother and the quarrel took place between them prior to the alleged incident. She has stated that her parents and maternal uncle said that they would teach a lesson to the family of the accused. According to PW2, Roshani Devi, she sent the prosecutrix to the house of Suresh Kumar to bring ‘Lassi’ at about 7.30 A.M. and she came back at 9.30 A.M.. She narrated the incident to her. She noticed blood stains on salwar. Her husband came back to home at 9.30 P.M. and she disclosed the incident to him. Her husband scolded her for not disclosing the incident immediately. She told him that she was upset. PW3, Jia Lal, deposed that on 27.8.2007, he came back home from village Panjgai at 9.00/9.30 P.M. The incident was narrated to him by his wife PW2 Roshani Devi. Thereafter, he contacted his brother-in-law PW15 Hem Raj and FIR was lodged. 29 The prosecutrix was resident of village Pandroh. House of PW5 Suresh Kumar was in village Talai Nalag. According to PW5 Suersh Kumar, distance between his house and house of the prosecutrix was 8 kms. Thereafter, he contacted his brother-in-law PW15 Hem Raj and FIR was lodged. 29 The prosecutrix was resident of village Pandroh. House of PW5 Suresh Kumar was in village Talai Nalag. According to PW5 Suersh Kumar, distance between his house and house of the prosecutrix was 8 kms. According to PW2 Roshani Devi, the prosecutrix left the house at about 7.30 A.M. and came back at 9.30 A.M.. According to PW1, prosecutrix, when she was coming back to her house with lassi, on the way the accused met him. She was accosted by the accused, who took her to his cow-shed and committed rape on her. It is not believable, by any stretch of imagination, the prosecutrix travelled 16 kms within two hours. 30 There is ample evidence on record to establish that the land of the family of the prosecutrix is adjacent to the cowshed of the family of the accused. PW1, prosecutrix, has specifically deposed that whenever her family was in need of grass, her parents used to cut the grass from the land of family of the accused. The mother of the accused quarrelled with her mother several times. It has also come on record that the mother of the accused was complaining about theft of the grass and fuel wood by the family of the prosecutrix from her land. The prosecutrix specifically stated that her parents and maternal uncle said that they would teach a lesson to the family of the accused. It is duly established that relations between the two families were restrained due to repeated thefts of grass and fuel wood by the family of the prosecutrix from the land of the family of the accused. Quarrel took place on the very same day when the incident is stated to have taken place on 27.8.2007. 31 According to PW7, Dr. Sushma Dutta, the prosecutrix was subjected to sexual act. The statement of doctor has to give due weightage, however, it is not a substantive piece of evidence. The accused was examined by PW10, Dr. S.K. Fotedar. He had not noticed on the private parts of the accused. Version of the prosecution that she was raped while coming from the house of PW15 Suresh Kumar at his cowshed after bringing lassi cannot be believed in view of the statement of PW5 Suresh Kumar read with site map, Ext.P5. The accused was examined by PW10, Dr. S.K. Fotedar. He had not noticed on the private parts of the accused. Version of the prosecution that she was raped while coming from the house of PW15 Suresh Kumar at his cowshed after bringing lassi cannot be believed in view of the statement of PW5 Suresh Kumar read with site map, Ext.P5. 32 According to PW2, Roshani Devi, she came to know about the incident by 9.30 A.M. when she noticed blood stains on the shirt and salwar of the prosecutrix. If that was so, her normal reaction, would be to firstly contact her husband or elderly person from the village or by calling her relatives, however she waited for her husband, who came back to house at 9.00/9.30 P.M. 33. According to PW3, Jia Lal, father of the prosecutrix, he informed PW4 Babu Ram, Pradhan of the Gram Panchayat on 27.8.2007, who told him that he would come in the morning. When Babu Ram, Pradhan, stepped into the witness box as PW4, he was confronted with his earlier statement recorded under Section 161 Cr.P.C, wherein he had not stated that PW3 Jia Lal had made a telephonic call informing about the incident to him on 27.8.2007. 34. According to statement of PW2, Roshni Devi, recorded under Section 161 Cr.P.C, mark B, she narrated the incident to her husband when he came back at 8.30 P.M.. Thereafter, her husband contacted his in-laws at village Panjgai and in the mid-night his brother-in-law and relatives came to the house. They narrated the incident to them. When Roshni Devi appeared as PW2, she deposed that her brother PW15 Hem Raj called them on the road. According to PW1, the prosecutrix, her maternal uncle PW15 Hem Raj came to their village and called them to come nearby shop in the village. PW3, Jia Lal, stated that PW15 Hem Raj came at night near his house on the road and from that place they went in a Jeep to Police Station. According to PW15, Hem Raj on 27.8.2007, at about 9.30 P.M., he received a telephonic call from his brother-in-law PW3 Jia Lal that the prosecutrix had been raped by the accused. Thereafter, he along with his father and brother visited the house of PW3 Jial Lal, where he found the prosecutrix weeping. According to PW15, Hem Raj on 27.8.2007, at about 9.30 P.M., he received a telephonic call from his brother-in-law PW3 Jia Lal that the prosecutrix had been raped by the accused. Thereafter, he along with his father and brother visited the house of PW3 Jial Lal, where he found the prosecutrix weeping. There is variance in the statements of PW1, prosecutrix, PW2 Roshani Devi, PW3 Jia Lal and PW15 Hem Raj whether PW15 Hem Raj visited the house of the family of prosecutrix or went nearby the house of the prosecutrix. 35. Learned Sessions Judge recorded findings that since the accused belonged to Rajput caste, he was in a position to dominate the prosecutrix, who belonged to scheduled caste category. Initially the offence under SC & ST Act was not inserted in the FIR registered on 28.8.2007. It was inserted on 19.11.2007 at the instance of PW16, Sanjeev Gandhi, the then SDPO Sundernagar. Similarly, though, the Investigating Officer did not find any offence under Section 201 of the Indian Penal Code during his investigation, it was also added in the FIR for causing dis-appearance of evidence at the instance of PW16, Sanjeev Gandhi. PW16, Sanjeev Gandhi, has not explained why he visited the spot on 20.11.2007 when the investigation of the case was already complete. The only explanation given by PW16, Sanjeev Gandhi that he suo-motu examined the case file being Supervisory Officer. 36 There are major contradictions, inconsistencies, exaggerations and embellishment in the statements of the material witnesses of the prosecution. Learned trial court has overlooked major contradictions in the statements of the prosecution witnesses. The prosecution has failed to prove its case against the accused. 37 Accordingly, the appeal is allowed and the judgment of conviction and sentence dated 12.9.2008, under Section 376 of the Indian Penal Code and under section 3(xii) of the SC & ST Act is set aside. The accused is acquitted of the charges framed against him. The fine amount, if any deposited by him is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 38 The Registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the Jail concerned in conformity with this judgment forthwith.