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2016 DIGILAW 96 (CAL)

Bidhan Ghosh v. State of West Bengal

2016-01-29

R.K.BAG

body2016
JUDGMENT : R.K. Bag, J. This appeal arises out of judgment and order dated August 8, 2014 passed by Learned Additional Sessions Judge, Tehatta, Nadia in S.T. No.12(3) of 2010 corresponding to S.C. No.104(11)of 2009, by which Learned Judge of the trial court sentenced the appellant to suffer rigorous imprisonment for 7 years and to pay fine of Rs.5,000/- in default to suffer imprisonment for 6 months for commission of the offence punishable under Section 376 of the Indian Penal Code. 2. The backdrop of the conviction and sentence of the appellant by the trial court is as follows: On August 28, 2009 the de facto complainant filed one written complaint before the Inspector-in-charge of Tehatta Police Station in the District of Nadia. The contents of the written complaint disclose that the minor daughter of the de facto complainant aged about 14 years studied upto Class-VII at Barnia Sarbartha Sadhika Girls’ Junior High School. The minor girl of the de facto complainant is the victim girl of this case. The victim girl fell in love with the appellant aged about 20 years. The appellant is a co-villager of the victim girl. The appellant cohabited with the victim girl on promise of marriage. The pregnancy of the victim girl was detected by the de facto complainant when the victim was pregnant for 3 months. The incident was reported to the father of the appellant in a meeting of comprise held in the village. Both the appellant and his father took two days time for consideration of the proposal of marriage of the victim with the appellant, but they did not turn up after expiry of two days. Accordingly, the appellant reported the incident to the police and the criminal case was started against the appellant at Tehatta Police Station. 3. The police took up the investigation of the criminal case. Both the appellant and the victim girl had undergone medical examination. The statement of the witnesses were recorded by the Investigating Officer. Ultimately, chargesheet was submitted against the appellant on the allegation of committing offence under Section 417/376 of the Indian Penal Code. The appellant was arrested and detained in custody. The appellant pleaded not guilty of the charge and faced the trial. The statement of the witnesses were recorded by the Investigating Officer. Ultimately, chargesheet was submitted against the appellant on the allegation of committing offence under Section 417/376 of the Indian Penal Code. The appellant was arrested and detained in custody. The appellant pleaded not guilty of the charge and faced the trial. On conclusion of trial Learned Judge of the Court below convicted the appellant and sentenced him to imprisonment for 7 years for the offence under Section 376 of the Indian Penal Code, but he was acquitted of the charge under Section 417 of the Indian Penal Code. 4. Mr. Siladitya Sanyal, Learned Counsel for the appellant has challenged the order of conviction and sentence passed by the trial court mainly on three grounds: first, the victim girl attained 16 years of age at the time of cohabitation with the appellant; secondly, there was delay of about 5 to 6 months in reporting the incident to the police and the said delay has not been explained by the prosecution; and thirdly, the victim girl had sexual intercourse with the appellant due to love affairs between them and not on promise of marriage as alleged by the parents of the victim girl. By referring to the prescriptions of the doctor who examined the victim (Exhibit-4 and 5) and the report of Ultrasonography Test of the victim girl (Exhibit- B), Mr. Sanyal contends that the age of the victim girl was 17 to 18 years in the month of October, 2009 when the victim girl was found to be pregnant for 5 to 6 months. By making mathematical calculation of the approximate period of cohabitation of the appellant with the victim girl, he submits that the victim girl must have been more than 16 years old when sexual intercourse took place. According to Mr. Sanyal, the recording of date of birth of the victim girl in the Admission Register of the school (Exhibit-6) cannot be relied upon, as there is no explanation how the date of birth of the victim was recorded in the Admission Register of the school. Mr. According to Mr. Sanyal, the recording of date of birth of the victim girl in the Admission Register of the school (Exhibit-6) cannot be relied upon, as there is no explanation how the date of birth of the victim was recorded in the Admission Register of the school. Mr. Sanyal has relied on the decision of our High Court in “M.C. Prasannah V. State” reported in 1999 C.Cr.LR.(Cal) 45 and in “Saroj Mondal V. State of West Bengal” reported in (2007) 1 C.Cr.LR.(Cal) 249 and decisions of the Supreme Court in “Ravinder Singh Gorkhi V. State of UP” reported in 2006(2) Apex Criminal 333 and in “Deelip Singh V. State of Bihar” reported in 2005 SCC (Cri) 253 in support of his above contention. 5. By referring to the written complaint treated as FIR (Exhibit-1) and the evidence of the victim girl (P.W.3), Mr. Sanyal categorically submits that the victim girl was pregnant for about 5 months when the incident was reported to the police. According to the prosecution, the delay took place because the victim girl and her parents had the impression that the appellant would marry the victim. According to Mr. Sanyal, the victim girl (P.W.3) has not uttered a single word of promise of marriage of the appellant in her evidence before the trial court and as such the delay of about 5 months in reporting the incident to the police has not been explained by the prosecution. Mr. Sanyal has relied on the decision of the Supreme Court in “Vijayan V. State of Kerala” reported in (2008) 14 SCC 763, “Kaini Rajan V. State of Kerala” reported in (2014)1 C.Cr.L.R.(SC) 105 and “Deepak Gulati V. State of Haryana” reported in (2013) 3 SCC (Cri) 660 in support of his above contention. 6. By referring to the evidence of the victim girl (P.W.3) Mr. Sanyal argues that the victim girl had sexual intercourse with the appellant due to love affairs and not for any promise of marriage as contended by the State. According to Mr. Sanyal, no offence of rape is made out against the appellant who had sexual intercourse with the victim girl with her consent. Mr. Sanyal argues that the victim girl had sexual intercourse with the appellant due to love affairs and not for any promise of marriage as contended by the State. According to Mr. Sanyal, no offence of rape is made out against the appellant who had sexual intercourse with the victim girl with her consent. Mr. Sanyal has relied on the decision of the Supreme Court in “K.P. Thimmappa Gowda V. State of Karnataka” reported in (2011) 2 C.Cr.L.R. (SC) 698 and “Rai Sandeep alias Deepu V. State (NCT) of Delhi” reported in (2012) 3 SCC (Cri) 750, “Uday V. State of Karnataka” reported in 2003 SCC (Cri) 775 and decisions of Calcutta High Court in “Jayanti Rani Panda V. State of West Bengal” reported in 1984 CrLJ 1535 in support of his above contention. 7. By referring to the evidence of P.W.5 (Dr. Saikat Mukherjee) and P.W.10 (Dr. Amaresh Chandra Mondal) Mr. Sanyal contends that the victim girl was not found to be pregnant on September 2, 2009, whereas she was found to be pregnant for 20 weeks on November 19, 2009. This glaring inconsistency in the evidence of the prosecution, according to Mr. Sanyal, leads to infer that story of pregnancy of the victim girl is fabricated by her parents in order to create pressure on the appellant to marry the victim. 8. Mr. Anand Keshari, Learned Counsel for the State contends that the victim girl was 14 years old at the time of the incident. He has referred to the written complaint treated as FIR (Exhibit-1), evidence of P.W.2 (mother of the victim girl), evidence of P.W.3 (victim girl) and entries made in the Admission Register of the school (Exhibit-6) in support of the contention that the victim girl was below 16 years old at the time of cohabitation with the appellant. Mr. Keshari further submits that the appellant established sexual relation with the victim girl on promise of marriage and the parents of the minor victim girl waited till refusal of marriage by the appellant for reporting the incident to the police, and as such the delay in reporting the incident to the police has been explained satisfactorily. However, Mr. Keshari has failed to explain the discrepancy in the evidence of the prosecution witnesses with regard to the pregnancy of the victim girl. Mr. However, Mr. Keshari has failed to explain the discrepancy in the evidence of the prosecution witnesses with regard to the pregnancy of the victim girl. Mr. Keshari has relied on two decisions of the Supreme Court in “Deelip Singh alias Dilip Kumar V. State of Bihar” reported in 2005 SCC(Cri) 253 and “Deepak Gulati V. State of Haryana” reported in (2013) 3 SCC (Cri) 660 in support of his above contention. According to Mr. Keshari, the victim girl deserves justice by upholding conviction of the appellant who had cohabited with the victim on promise of marriage and subsequently evaded his responsibility. 9. The trial court convicted the appellant only for the offence punishable under Section 376 of the Indian Penal Code and he was acquitted of charge under Section 417 of the Indian Penal Code. “Rape” is defined in Section 375 of the Indian Penal Code as follows: “S.375. A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.-Against her will, Secondly.-Without her consent. Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.-Sexual intercourse be a man with his own wife, the wife not being under fifteen years of age, is not rape.” On perusal of the above definition of rape as applicable to the present case, it appears that sexual intercourse of a man with a woman under 16 years of age amounts to rape even if sexual intercourse takes place with consent of the woman. It is, therefore, necessary to ascertain the age of the victim girl at the time of commission of the offence. 10. The mother of the victim girl has stated in the written complaint treated as FIR (Exhibit-1) that the victim girl is 14 years old, whereas she (P.W.2) has stated in her evidence before the Court that the victim girl is aged about 15 years and two months. The victim girl (P.W.3) herself has stated in her statement under Section 164 of the Code of Criminal Procedure that she is aged about 15 years and she has stated in her evidence that her date of birth is May 9, 1995. The victim girl (P.W.3) has stated in evidence in chief that her pregnancy was terminated while she was carrying for 6 to 7 months. The mother of the victim girl (P.W.2) has stated during cross-examination that the victim girl was pregnant for 5 to 6 months before filing of this criminal case. On an analysis of the above evidence of the victim girl and her mother, it appears that the victim girl might have conceived in the month of February or March, 2009 when she was about 14 years old. Now, the question for consideration is whether the date of birth of the victim girl should be accepted as May 9, 1995. The discharge certificate of the victim girl after her admission in Government Hospital at Krishnanagar for treatment of miscarriage (Exhibit-A) indicates that her age is 16 years old. The report of Ultrasonography Examination of the victim girl conducted in a Private Hospital on January 12, 2010 (Exhibit-B) indicates that her age is 18 years old. The Radiologist (D.W.2) who conducted the said Ultrasonography Examination has stated in evidence that the age recorded in the said report was disclosed by the victim herself. Admittedly, the victim girl was treated by P.W.10 (Dr. Amaresh Chandra Mondal) on 08.10.2009 and 19.11.2009, who prescribed medicines in two prescriptions (Exhibit-4 and Exhibit-5). It appears from the said two prescriptions (Exhibit-4 and Exhibit-5) that the age of the victim girl is recorded as 17 years. These prescriptions have been admitted into evidence on behalf of the prosecution and thereby I find that the prosecution has adduced conflicting evidence with regard to the age of the victim girl. It appears from the said two prescriptions (Exhibit-4 and Exhibit-5) that the age of the victim girl is recorded as 17 years. These prescriptions have been admitted into evidence on behalf of the prosecution and thereby I find that the prosecution has adduced conflicting evidence with regard to the age of the victim girl. The recording of date of birth of the victim girl in the Admission Register of Barnia Sarbartha Sadhika Girls’ Junior High School (Exhibit-6) is found to be May 9, 1995. The Headmistress of the said school (C.W.1) has stated in evidence that the date of birth of the victim girl in the Admission Register was recorded by the concerned clerk, but she does not know on the basis of which document the date of birth of the victim girl was recorded in the said Register. On perusal of the entries with regard to date of birth of the victim girl in the copy of Admission Register of the school (Exhibit-6) I find that the date of birth was not recorded on the basis of either any document or declaration of the guardian of the victim girl in relevant columns no.13 to 16, which are found to be blank in the said Admission Register. Now, the issue for determination of this Court is whether the Court can rely on the recording of date of birth of the victim girl in the Admission Register of the school, when the date of birth is recorded not on the basis of any document, or declaration of the guardian. 11. In “Ravinder Singh Gorkhi V. State of UP” reported in 2006(2) Apex Criminal 333 the Supreme Court did not accept the school leaving certificate which was prepared for the purpose of the case. In this report, the date of birth recorded in the Register of the school was also not accepted by the Supreme Court as there was no evidence to indicate how the date of birth was recorded in the said Register. In “Saroj Mondal V. State of West Bengal” reported in (2007) 1 C.Cr.L.R.(Cal) 249 the Division Bench of our High Court has held in paragraph 23(vi) as follows: “23(vi). ………. In “Saroj Mondal V. State of West Bengal” reported in (2007) 1 C.Cr.L.R.(Cal) 249 the Division Bench of our High Court has held in paragraph 23(vi) as follows: “23(vi). ………. The recording of date of birth in the Admission Register of Narayanpur High School not being based on any authentic document certifying the date of birth of PW8 but being based on a duplicate copy of Transfer Certificate, the original whereof was not looked into while making the subject entry in the Admission Register, no credence can be attached thereto. .……..” Thus, in this report the recording of date of birth in the Admission Register of the school based on duplicate copy of Transfer Certificate was not accepted as credible evidence of age of the victim girl by the Hon’ble Division Bench of our High Court. 12. In “M.C. Prasannah V. State” reported in 1999 C.Cr.L.R.(Cal) 45 the Hon’ble Division Bench of our High Court did not accept the proof of age on the basis of date of birth recorded in the Admission Register of the school without production of any Birth Certificate or Transfer Certificate at the time of making entry of date of birth in the Admission Register of the School. Similary, in “Deelip Singh V. State of Bihar” reported in 2005 SCC (Cri) 253 the Supreme Court did not rely on Transfer Certificate of the School as proof of date of birth of the victim girl. In the said report the Transfer Certificate of the school issued by the Headmistress was produced by a clerk in the Court and the said certificate was obtained after commencement of the trial. The admission was made in the school on the basis of declaration of his father, but the father did not utter a single word about the date of birth of the victim girl and as such the Supreme Court did not accept the said Transfer Certificate as proof of date of birth. 13. The admission was made in the school on the basis of declaration of his father, but the father did not utter a single word about the date of birth of the victim girl and as such the Supreme Court did not accept the said Transfer Certificate as proof of date of birth. 13. In view of the above proposition of law laid down by our High Court and the Supreme Court, it will not be safe and prudent on my part to rely on the recording of date of birth of the victim girl in the Admission Register of Barnia Sarbartha Sadhika Girls’ Junior High School, particularly when the Headmisress of the said school (C.W.1) has failed to explain on the basis of what document the date of birth of the victim girl was recorded in the said Admission Register of the school (Exhibit-6). There are glaring inconsistencies in the other evidence with regard to age of the victim girl adduced on behalf of the prosecution. While the victim girl (P.W.3) and the mother of the victim girl (P.W.2) have stated the age of the victim girl as 15 years, the mother of the victim has disclosed the age of the victim girl as 14 years in the written complaint treated as FIR (Exhitit-1). Again, while the oral testimony of victim girl and her mother (P.W.2 and P.W.3) indicates that the date of birth of the victim girl is 15 years, the medical prescriptions of Dr. Amaresh Chandra Mondal (Exhibit-4 and 5) clearly indicate that the date of birth of the victim girl is 17 years. The age of the victim girl is recorded as 16 years in the discharge certificate of the hospital (Exhibit-A) and 18 years in the report of Ultrasonography Examination (Exhibit-B). In view of the above glaring inconsistencies in the evidence of the prosecution with regard to the age of the victim girl and in view of the recording of date of birth of the victim girl in the Admission Register of the school (Exhibit-6) without production of any valid document with regard to date of birth at the time of admission in the school, I am constrained to hold that the age of the victim was about 17 to 18 years old when his pregnancy was detected for 5 to 6 months. The natural corollary of my above observation is that the victim girl was more than 16 years old when she cohabited with the appellant. So, the appellant will be liable for commission of rape if the appellant cohabited with the victim girl without her consent. 14. The parents of the victim girl (P.W.2 and P.W.6) have stated in evidence that the appellant committed sexual intercourse with the victim girl on promise of marriage. However, the victim girl (P.W.3) has categorically stated in evidence that she had sexual intercourse with the appellant due to love affairs between them. The commission of sexual intercourse on promise of marriage is clearly absent from the evidence of the victim girl (P.W.3), though the victim girl stated about the promise of marriage in her statement under Section 164 of the Code of Criminal Procedure. Since the victim girl (P.W.3) has not stated in her evidence before the trial court that she had sexual intercourse with the appellant on promise of marriage and since she disclosed the fact of pregnancy to her parents after about 5 to 6 months of pregnancy, I am unable to give any credence to the prosecution story that the victim girl had sexual intercourse with the appellant only on promise of marriage. In my view, the sexual intercourse of the victim girl took place due to love affairs between the victim girl and the appellant. 15. Now, I would like to deal with the authorities cited on behalf of the appellant to impress upon the Court that the victim girl had consent for sexual intercourse with the appellant and as such no offence of rape is made out against the appellant. In “K.P. Thimmappa Gowda V. State of Karnataka” reported in (2011) 2 C.Cr.L.R.(SC) 698 the appellant had sex with consent of the victim girl aged about 18 years and the incident was reported after about 8 months of pregnancy and as such no offence was committed by the appellant. In “Rai Sandip alias Deepu V. State (NCT) of Delhi” reported in (2012) 3 SCC (Cri) 750 the Supreme Court acquitted the appellant of the charge of gang rape due to glaring inconsistencies in the evidence of prosecution of witnesses and total variation in the version of the prosecutrix from what was stated by her in the complaint and what was stated in the Court during the trial of the case. 16. Relying on the decision of our High Court in “Jayanti Rani Panda V. State of West Bengal” reported in 1984 CrLJ 1535 , the Supreme Court has observed in paragraph 16 of “Uday V. State of Karnataka” reported in 2003 SCC (Cri) 775 as follows: “16. .……. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 of Indian Penal Code cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her.” In the instant case, the victim girl (P.W.3) has not stated in her evidence before the trial court that she had sexual intercourse with the appellant on promise of marriage and she continued to indulge in maintaining sexual relation with the appellant till she became pregnant for 5 to 6 months. In view of clear and unambiguous statement made by the victim girl (P.W.3) in her evidence before the trial court that the sexual intercourse with the appellant took place due to love affairs between them, I am unable to give any credence to her earlier statement made before the Judicial Magistrate under Section 164 of the Code of Criminal Procedure, wherein she stated that her sexual intercourse with the appellant took place on promise of marriage. I have already observed that the age of the victim girl must have been above 16 years of age at the time of sexual intercourse with the appellant. The evidence on record clearly indicates that the victim girl consents to the act of sexual intercourse with the appellant for her deep love with the appellant at the relevant point of time and as such Section 90 of the Indian Penal Code cannot be called in the aid of the victim. In view of my above findings, I would like to accept the contention made on behalf of the appellant that the sexual intercourse of the victim girl with the appellant was with the consent of the victim girl. 17. In view of my above findings, I would like to accept the contention made on behalf of the appellant that the sexual intercourse of the victim girl with the appellant was with the consent of the victim girl. 17. Now, I would like to deal with the issue of delay in lodging the FIR and whether this delay is explained satisfactorily. I have already observed from an analysis of the evidence on record that the incident was reported to the police when the victim was pregnant for about 5 months, though the mother of the victim (P.W.2) has stated in the written complaint that the victim was pregnant for 3 months at the relevant point of time. The pregnancy of the victim girl has also created doubt in my mind due to conflicting evidence adduced by the prosecution. Dr. Saikat Mukherjee (P.W.5) who examined the victim girl on September 2, 2009 has opined that the victim girl was not pregnant on the basis of the H.C.G Urine Test for pregnancy. The report of medical examination of the victim girl (Exhibit-2/1) also corroborates oral testimony of P.W.5 to the effect that the victim girl was not pregnant. Nothing is on record to indicate that there is higher risk of getting false negative result of H.C.G Urine Test for pregnancy. The Urine Test for pregnancy was also not repeated to confirm the absence of pregnancy when the victim girl has specifically disclosed about her pregnancy by the appellant. On the other hand, the victim girl continued her medical treatment under another doctor, namely Dr. Amaresh Chandra Mondal (P.W.10) who examined the victim girl on October 8, 2009 and November 19, 2009 that is about one and two months after examination of the victim girl by Dr. Saikat Mukherjee (P.W.5). The prescriptions issued in favour of the victm girl by PW10 (Dr. Amaresh Chandra Mondal) go to establish that the victim girl was pregnant for about 13 weeks in October, 2009 and 21 weeks in November 2009. The parents of the victim girl has stated in evidence that there was miscarriage of pregnancy of the victim girl after reporting the incident to the police and all documents in connection with her medical treatment were sent to the Investigating Officer, but those documents are not produced on behalf of the prosecution. The parents of the victim girl has stated in evidence that there was miscarriage of pregnancy of the victim girl after reporting the incident to the police and all documents in connection with her medical treatment were sent to the Investigating Officer, but those documents are not produced on behalf of the prosecution. In the absence of any explanation the conflicting evidence with regard to pregnancy of the victim girl casts doubt in my mind whether the victim girl was really pregnant at the time of reporting the incident to the police. 18. With regard to the delay in lodging the FIR, I would like to deal with the authorities cited on behalf of the appellant. In “Vijayan V. State of Kerala” reported in (2008) 14 SCC 763 the Supreme Court acquitted the accused of the charge under Section 376 of the Indian Penal Code on two grounds: first, the prosecutrix waited for 7 months after rape for registration of FIR and secondly, there is no supporting evidence to establish the incident of rape, except the sole testimony of the prosecutrix which was not credible and trustworthy. In “Kaini Rajan V. State of Kerala” reported in (2014) 1 C.Cr.L.R (SC) 105 the Supreme Court did not rely on the uncorroborated version of the prosecutrix when the incident of rape was reported to the police after 10 months of the incident. In this report the delay was sought to be explained by stating that the accused wanted to marry the victim, but there is no iota of evidence to indicate that there was any talk of marriage between the parties. In “Deepak Gulati V. State of Haryana” reported in (2013) 3 SCC (Cri) 660 the Supreme Court disbelieved that the consent of the adult prosecutrix was obtained by promise of marriage as the prosecutrix did not report the incident of physical relationship to the police and the appellant/accused was not at fault for not solemnisation of marriage between the parties. In the present case, the victim girl did not report the incident of sexual intercourse with the appellant till she became pregnant for 5 months. The victim girl (P.W.3) has not uttered a single word in her evidence before the trial court that sexual intercourse took place due to promise of marriage. In the present case, the victim girl did not report the incident of sexual intercourse with the appellant till she became pregnant for 5 months. The victim girl (P.W.3) has not uttered a single word in her evidence before the trial court that sexual intercourse took place due to promise of marriage. On the contrary, the victim girl (P.W.3) has categorically stated in evidence that she had sexual intercourse with the appellant due to love affairs. By following the proposition of law laid down by the Supreme Court in “Vijayan V. State of Kerala” (supra), “Kaini Rajan V. State of Kerala” (supra) and “Deepak Gulati V. State of Haryana” (supra), I have no hesitation to hold that the prosecution has failed to explain the delay in reporting the incident to the police to the satisfaction of this Court and the delay is fatal to the prosecution. 19. I don’t find any relevance of the decision of “Deepak Gulati V. State of Haryana” reported in (2013) 3 SCC (Cri) 660 cited on behalf of the State. In “Deelip Singh V. State of Bihar” reported in 2005 SCC (Cri) 253 the Supreme Court directed the accused/appellant to pay Rs.50,000/- to the victim girl in spite of participation of the victim girl in the sexual act with the appellant/accused voluntarily. The Supreme Court gave the direction to the appellant to make payment of Rs.50,000/- to the victim girl by invoking the power under Article 142 of the Constitution of India. This Court cannot exercise the power under Article 142 of the Constitution of India and as such I don’t find any relevance of the said authority cited on behalf of the State. 20. In view of my above findings, the judgment and order dated August 8, 2014 passed by Learned Additional Sessions Judge, Tehatta, Nadia in S.T. No.12(3) of 2010 corresponding to S.C. No.104(11) of 2009 is hereby set aside. The appellant/convict is set at liberty. Let a copy of this judgment and order, be sent down to the trial court along with lower court record for favour of information and necessary action. The urgent photostat certified copy of the judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.