JYOTI v. State Of Chhattisgarh Through Station House Officer, Police Station

With the consent of learned counsel for the parties, the appeal is heard finally.

1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 28.03.2019 passed in Special Criminal Case No. H-24/2018 by the learned Special Judge, (POCSO Act) Mahasamund, District Mahasamund C.G. whereby the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 363 of IPC R.I. for 3 years and fine of Rs. 1,000/- with default stipulations. Under Section 366 of IPC R.I. for 5 years and fine of Rs. 1,000/- with default stipulations. Under Section 376(2) (i) of the IPC R.I. for 10 years and fine of Rs. 2,000/- with default stipulations. (All the sentence are directed to run concurrently)

2. The prosecution case in brief is that the complainant lodged a written report at Mahasamund Police Station stating that in the morning of 4 June 2018, her minor daughter (the victim) went missing from their residence and could not be found despite extensive search efforts. Subsequently, on 6 June 2018, she received information from Bhuneshwari Diwan and Bhoj Diwan relatives of Narsingh Kaki residing in Raipur that the victim and 3 CRA No. 758 of 2019 the accused had visited their house but had departed thereafter. Acting on the complainant’s report, the police registered an offence against the accused under Section 363 of the Indian Penal Code, and the matter was taken up for investigation.

3. During the investigation, Spot Map was prepared. Subsequently, after completing the investigation, a charge-sheet was submitted before the Court. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial.

4. In order to bring home the offence, the prosecution has examined 12 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter.

5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 28.03.2019 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal.

6. Learned counsel for the appellant contends that the impugned judgment of conviction is illegal, perverse, and contrary to the evidence on record. It is submitted that the prosecutrix (PW-1) herself deposed that on the date of incident she voluntarily left her house and accompanied the appellant, and thereafter both of them lived together for a considerable period without any objection, resistance, or protest. He further submits that the conduct of the prosecutrix clearly indicates that she was a 4 CRA No. 758 of 2019 consenting and willing party, and therefore the conviction recorded by the Trial Court is unsustainable. It is further urged that the medical evidence does not reveal any external or internal injuries on the prosecutrix and shows that she was habituated to sexual intercourse, thereby weakening the prosecution case. It is submitted that the findings of the Trial Court are perverse, unsupported by reliable evidence, and contrary to the record. The Trial Court, according to counsel, failed to appreciate that there is no cogent, credible, or trustworthy evidence linking the appellant to the alleged offences, and the essential ingredients of the offences charged are not made out. It is also contended that the prosecutrix was, as per the prosecution’s own case, more than 18 years of age on the date of the incident, and therefore the conviction is wholly untenable. On these grounds, learned counsel prays that the conviction and sentence imposed upon the appellant be set aside and that he be acquitted of all the charges.

7. On the other hand, learned counsel for the State opposed the submission and submits that the conviction is well merited which does not call for any interference.

8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

9. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ? 5 CRA No. 758 of 2019

10. The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:- “361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.”

11. The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:- (1) Taking or enticing away a minor or a person of unsound mind. (2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female. (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. (4) Such taking or enticing must be without the consent of such guardian. 6 CRA No. 758 of 2019 So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian.

12. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras1, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under:- “It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return 1 AIR 1965 SC 942 7 CRA No. 758 of 2019 to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.

13. Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), upon a careful consideration of the evidence, particularly the testimony of the prosecutrix, this Court is of the view that the offence under Section 363 IPC is not made out. As in cross examination the witness herself stated that she voluntarily came from Banjari village to Bhathapara village in Tumgaon. She also stated that while going to Raipur in bus with the appellant she did not raise any alarm and also that while staying at railway station also she did not raise any alarm. On the other hand, it is clearly established that the victim herself accompanied the appellant and there is no inducement to the victim by the appellant to leave the lawful guardianship. Therefore, in the considered opinion of this Court, the act/omission of the appellant, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC in light of judgment of the Supreme Court in S.Varadarajan (supra). Similarly, there is no evidence of enticing the minor victim by the appellant. As such, the trial Court is absolutely unjustified in 8 CRA No. 758 of 2019 convicting the appellant for offence under Section 363 of the IPC.

14. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 366 of the IPC ?

15. Bare perusal of the evidence of the victim girl, it appears that victim girl voluntarily accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366 of the IPC. Though, the learned State counsel vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366 of the IPC, other two essential ingredients i.e. the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person. As such, the prosecution has failed to prove the ingredients of offence under Section 366 of the IPC.

16. The next question arises before this Court whether the victim was minor on the date of incident or not?

17. The prosecutrix (PW-1) deposed that she had studied up to Class IXth and that her date of birth was 09.05.2004; however, in her cross-examination she admitted that she knew her date of birth 9 CRA No. 758 of 2019 only on the basis of school records. PW-2, the mother of the prosecutrix, stated that the prosecutrix was about 14 years of age at the time of the incident. PW-3, the maternal grandfather of the prosecutrix, also stated that she was about 14 years old, and in cross-examination he clarified that the age disclosed by him was based on the date of birth mentioned in the Aadhaar card.

18. Ramashankar Sharma (PW-4), Teacher of Primary School, Banjari, deposed that he had brought the original Dakhil Kharij Register (Article A-1) in which the date of birth of the prosecutrix was recorded. In cross-examination, he admitted that the Dakhil Kharij Register did not bear the signature of its author.

19. The prosecution has failed to prove the age of the prosecutrix beyond reasonable doubt as PW-1 stated her date of birth only on the basis of school records; PW-2 and PW-3 merely estimated her age and relied on documents not produced in evidence, with PW- 3 admitting he stated the age as per the Aadhaar card. PW-4 produced the Dakhil Kharij Register, but acknowledged that it did not bear the signature of its author, reducing its reliability. In the absence of any authentic or primary document, the age of the prosecutrix remains unproved. Even, there is no medical evidence with regard to actual age of the victim.

20. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Supreme Court has 10 CRA No. 758 of 2019 observed as under: "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, of birth who made the entry or who gave the date is examined.

42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No 11 CRA No. 758 of 2019 evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."

44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl.

48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a 12 CRA No. 758 of 2019 minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to regard to the provisions of Section 35 the lis, having of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

21. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

33.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX

33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 13 CRA No. 758 of 2019

33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. inquiry, the Court records a prima In case of an facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance.

33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.

33.11. Ossification Test cannot be the sole criterion for 14 CRA No. 758 of 2019 age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."

22. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under : "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15 CRA No. 758 of 2019

15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."

16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is 16 CRA No. 758 of 2019 provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference."

23. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment.

24. The next question for consideration would be whether the appellant has committed rape upon her or not?

25. PW-1 stated that she knows the accused, who was working at her sister Durga’s house in village Kokdi, where she stayed for 15 days during the summer holidays. After she returned to village Banjari, the accused obtained her mobile number from her brother-in-law and repeatedly called her, expressing love and threatening to commit suicide and file a false report if she did not elope with him. Out of fear, on the 4th she went to Tumgaon 17 CRA No. 758 of 2019 around 9–10 p.m., where the accused met her and took her to the forest at Bhathapara, Tumgaon, and had sexual intercourse with her against her will. He then took her to Raipur, where his sister refused to keep her, after which he kept her at the Raipur railway station for nine days. Later, he took her to Khariar Road railway station in Odisha, where his friend informed him that a report had been lodged. The accused left saying he would bring food and did not return, after which a policeman took her to the Khariar Road police station. In cross examination the witness admitted that she voluntarily walked from her village Bajari to Bhatapara, where she met the accused at a cycle shop. She further stated that during their travel and stay from walking together, spending the night in the forest, travelling by bus to Raipur, and staying nine days at Raipur railway station she did not inform her family, neighbours, co-passengers, or the police, even though the accused repeatedly left her alone. She agreed that she could have run away or sought help at multiple points but did not do so. She also confirmed that she has no knowledge of phone numbers, made no immediate complaint, and did not report anything until reaching Khariar Road.

26. PW-2 mother of the victim stated that she knew the accused. She stated that the victim is her daughter. She is aged about 14 years old. She stated that on the 4th, at night, her daughter left home 18 CRA No. 758 of 2019 without telling anyone. She further stated that they searched for the victim, but couldn't find her. She further stated that they learnt from a mobile phone at home that the accused had abducted the victim. She further stated that after three days she went to Mahasamund Police Station and filed a report about the accused abducting the victim.

27. PW-8 Dr. Anubha stated that on external examination of the victim she found scratch marks near the hips. However, no cuts or lacerations were found. Secondary sexual characteristics, including pubic hair, were present. She further stated that internal examination revealed the hymen was torn but no internal injuries were found.

28. Upon careful consideration of the evidence of PW-1, PW-2 and PW-8, this Court finds that the prosecution has failed to establish its case beyond reasonable doubt. The prosecutrix (PW-1), in her cross-examination, admitted that she voluntarily walked from her village to Bhatapara, met the accused there, and thereafter accompanied him during their travel and extended stay at different places without raising any alarm or informing her family, neighbours, co-passengers or the police, despite having several clear opportunities to do so and despite the accused frequently leaving her unattended. Further, the prosecution has not produced any reliable or primary document to prove the age of the prosecutrix, and PW-2 and PW-3 could only state her age in 19 CRA No. 758 of 2019 approximate terms, while PW-1 admitted that she knew her date of birth only from school records. The medical evidence of PW-8 also does not support the allegation of forcible intercourse, as no internal or significant external injuries were found on the prosecutrix.

29. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant has committed rape upon her, rather it reflects from the evidence that the victim herself had made consented sexual intercourse with the appellant. Thus, it cannot be said that the appellant committed such heinous offence.

30. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.

31. Thus, the prosecution has not proved that the appellant had forcefully taken away the Victim, and from the evidence of the victim the same creates doubt and also the fact that since, it has also not proved that at the time of incident the Victim was minor, therefore, 20 CRA No. 758 of 2019 I am of the view that the appellant is entitled to be acquitted.

32. In the result, the appeal is Allowed. The impugned judgment of conviction and order of sentence dated 28.03.2019 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith if not required in any other case.

33. Keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

34. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Bibhu Datta Guru) Judge Jyoti