Rajasthan High Court - Jaipur
Vinay Krishna Ghatak vs State Of Rajasthan on 23 April, 2003
Equivalent citations: RLW2004(1)RAJ3, 2004(1)WLC136
JUDGMENT Garg, J.
1. This appeal has been filed by the accused appellant against the judgment and order dated 28.11.2001 passed by the learned Addl. Sessions Judge (Fast Track), Rajsamand in Sessions Case No. 47/2001 by which he convicted the accused appellant for the offence under Section 376 IPC and sentenced to undergo seven years RI and to pay a fine of Rs. 5000/-, in default of payment of fine, to further undergo RI for three months.
2. The facts giving rise to this appeal, in short, are as follows:-
On 4.6.2000 at about 7.15 PM, PW 2 Monika (hereinafter referred to as the prosecutrxi) lodged an oral report (Ex. P/i) with the Police Station Raj Nagar District Rajsamand to Sunderlal Soni, who was Incharge of that Police Station, stating inter-alia that the accused appellant, who was doctor by profession, was known to her father and the accused appellant had brought to her from her father's house from Bengal two months back for doing the domestic work. The prosecutrix has further stated in her report Ex. P/l that she used to work at the house of the accused appellant and asked to keep the children and she also used to perform other domestic work. The prosecutrix has further stated in her report Ex. P/l that on 27.5.2000 she was sleeping in the TV room and the wife of the accused appellant was also seeing TV, but she did not know when the wife of the accused appellant had left that room and in the night, when her clothes were being pulled, she awoke from the sleep and at that time, she found the accused appellant sitting there, who after making her undressed, committed rape with her and when she tried to make hue and cry, her mouth was pressed. The prosecutrix has further stated in her report Ex. P/l that after that incident, she continuously slept for whole next day (sunday) and she awoke in the evening, but she did not inform that incident even to the wife of the accused appellant, but asked the wife of the accused appellant that she should be allowed to go back to home and on this, the wife of the accused appellant assured that she would be sent.
The prosecutrix has further states in her report Ex. P/l that on 2.6.2000 when she was seeing TV, the wife of the accused appellant asked her to go with water on the roof where the accused appellant was there and thereupon, she went on the roof alongwith water where the accused appellant put her on the bed and committed rape with her and when she tried to make hue and cry, she was threatened and that incident took place at about 11.30 PM in the night and, thereafter, she came back from the roof, but she did not tell about this incident even to the wife of the accused appellant. The prosecutrix has further stated in her report Ex. P/l that when she found the chance and when nobody was in the house, she took her clothes and left the house of the accused appellant and after sitting in the Bus, she reached kelwa where she asked for the Bus which was to go to Delhi. Thereafter, many people assembled there and she was sent to Police Station, where she lodged that report Ex. P/l. In her report Ex.P/l, the prosecutrix has further stated that she had washed those clothes which she was wearing at the time of commission of rape with her by the accused appellant.
On this report Ex. P/l, Sunderlal Soni registered the case and chalked out regular FIR Ex. P/2 and the investigation was conducted by PWIO Kishan Singh, who was at the relevant time SI, Police Station Raj Nagar.
During investigation, prosecutrix PW 2 Monika was got medically examined by PW 4 Dr. B.P. Jain and Dr. Sunita Jain for the purpose of ascertaining whether rape was committed with her or not and both doctors have given their report Ex. P/4 and the injury report of the prosecutrix is also Ex. P/4.
The prosecutrix PW 2 Monika was also got medically examined by PW 4 Dr. B.P. Jain and Dr. Sunita Jain for the purpose of ascertaining her age and the report about her age is Ex. P/5 where the age of the prosecutrix was assessed about between 15 to 17 years.
The statement of the prosecutrix PW 2 Monika under Section 164 Cr. P.C. was recorded and the same is Ex. P/6.
The accused appellant was arrested through Ex. P/13 on 5.6.2000.
After usual investigation police submitted challan for the offence under Section 376 1PC against the accused appellant before the Court of Magistrate and from where the case was committed to the court of Session and, thereafter, the case was transferred to the Court of Addl. Sessions Judge (Fast Track), Rajsamand.
On 24.3.2001, charge for the offence under Section 376 IPC was framed against the accused appellant stating that the committed rape with the prosecutrix on 27.5.2000 and 2.6.2000. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial.
During trail, the prosecution examined as many as 10 witnesses and got exhibited several documents. Thereafter, statement of the accused appellant under Section 313 Cr. P.C. was recorded. No evidence in defence was produced.
After conclusion of trial, the learned Addl. Sessions Judge (Fast Track), Rajsamand through judgment and order dated 28.11.2001 convicted and sentenced the accused appellant for the offence under Section 376 IPC in the manner as indicated above holding inter-alia :-
1. That at the time of alleged incidents, the age of the prosecutrix PW 2 Monika was above 16 years.
2. That the theory of consent as put forward by the defence was rejected and other submissions were also rejected and it was held that the accused appellant committed rape with the prosecutrix PW 2 Monika against her will.
Aggrieved from the said judgment and order dated 28.11.2001 passed by the learned Addl. Sessions Judge (Fast Track), Rajsamand, the accused appellant has preferred this appeal.
3. In this appeal, the following submissions have been made by the learned counsel for the accused appellant :-
1. That the statement of the prosecutrix PW 2 Monika does not inspire confidence as there is much improvement in her statement recorded in the Court and her statement gets contradicted from her police statement Ex. D/l on material points and she had developed the story that she was given some drugs before she was raped by the accused appellant and this aspect is not found in her report Ex. P/l and police statement Ex. D/l,
2. That since the age of the prosecutrix PW 2 Monika was above 16 years at the time of alleged incidents, therefore, the case of the prosecution that she was forcibly raped by the accused appellant should not have been accepted as the medical evidence does not corroborate her statement and the prosecutrix was a consenting party and thus, the conviction of the accused appellant for the offence under Section 376 IPC cannot be sustained.
Hence, it was prayed that this appeal be allowed and the judgment and order dated 28.11.2001 passed by the learned Addl. Sessions Judge (Fast Track), Rajsamand be set aside and the accused appellant be acquitted of the charge framed against him.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 28.11.2001 passed by the learned Addl. Sessions Judge (Fast Track), Rajsamand.
5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
6. No doubt in the present case the learned Addl. Sessions Judge (Fast Track) has held that the age of the prosecutrix PW 2 Monika was above 16 years, all the same, the medical evidence in this respect has to be discussed first.
Medical Evidence with respect to age
7. The medical evidence with regard to age of the prosecutrix PW 2 Monika is found in the report Ex. P/5 prepared by PW 4 Dr. B.P. Jain and Dr. Sunita Jain and the age report Ex. P/5 deals with the clinical determination of age as well as determination of age by radiological examination.
8. Before considering the medical evidence in the present case, what is legal position with respect to determination of age as per medical jurisprudence has to be seen.
9. For determining accurate age of an individual, especially in early years, the following examination of the body is must :-
1. Teeth
2. Height
3. Weight
4. Ossification of bones
5. Minor sings.
10. On this point, the decision of the Hon'ble Supreme Court in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir (1), may be referred to where it has been held that margin of error in age ascertained by the radiological examination is of two years on either side.
Secondary sex characters :
11.The growth of hair appears first on the pubes and then in the axillae (armpits). The first sign of beginning puberty is found with the appearance of hair along labia. In the case of girls, it commences withe the appearance of soft and pale coloured downy hair on the pubes at the age of 13 years and a few sparse dark hairs appear at about 14 years. The growth becomes thicker in the course of a year or two when hair commences to grow in the axillae. The development of breasts in girls commences from thirteen to fourteen years, but it is liable to be affected by loose habits and social environments.
12. Keeping the above principles in mind, the factors of age of the prosecutrix PW 2 Monika has to be seen.
13. In the present case, the medical examination report about age of the prosecutrix PW 2 Monika is Ex. P/5 for which PW 4 Dr. B.P. Jain has been produced by the prosecution. In the age report Ex. P/5, it has been mentioned as follows :-
1. Built Average 2. Denture 7/7 7/7
3. Breast developed
4. Axillary hair present-brown
5. Public hair present-brown
14. The report of radiological examination of the prosecutrix PW 2 Monika is also Ex. P/5, which shows x-rays of elbow, wrist joint and pelvis were taken for determining the radiological age of the prosecutrix and it has opined in that report Ex. P/5 that the age of the prosecutrix PW 2 Monika was about between 15 to 17 years, The report Ex. P/5 has been proved by PW 4 Dr. B.P. Jain
15. Apart from this, it may be stated here that the prosecutrix PW 2 Monika has categorically stated in her examination that she had not studied in school and no school certificate or birth certificate of the prosecutrix has been produced and in absence of school certificate or birth certificate, the age is to be determined on the basis of medical evidence available on record.
16. Since in the present case, as per age report Ex. P/5 of the prosecutrix PW 2 Monika, the built was average, breast was developed and axillary and public hairs of brown colour were present, therefore, the age of the prosecutrix PW 2 Monika about between 15 to 17 years was rightly determined by PW 4 Dr. B.P. Jain and Dr. Sunita Jain and the learned Addl. Sessions Judge (Fast Track) rightly held that the age of the prosecutrix was above 16 years at the time of alleged incidents.
17. Thus, it is held that at the time of alleged incidents, the age of the prosecutrix PW 2 Monika was above 16 years and the findings of the learned Addl. Sessions Judge (Fast Track) in this respect are liable to be confirmed one.
Medical Evidence in respect of rape
19. To determine the factor whether rape has been committed by accused appellant on the prosecutrix PW 2 Monika or not, apart from the oral evidence, medical evidence, which is found in the present case, is also to be seen and discussed.
20. The medical examination report about rape is Ex. P/4, which shows that at the time of examination of the prosecutrix PW 2 Monika, no recent tears were found on her hymen and hymen was found not intact and vagina admits two fingers easily and thus, it was opined by PW 4 Dr. B.P. Jain and Dr. Sunita Jain that there was nothing to suggest that sexual intercourse had not taken place. PW 4 Dr. B.P. Jain has proved the rape report Ex, P/4.
21. The prosecutrix PW 2 Monika was also got medically examined by PW 4 Dr. B.P. Jain and Dr. Sunita Jain on 5.6.2000 and her injury report is also Ex. {/4, which shows that following injuries were found on her person :-
1. Abrasion 1 x 1/4 cm Rt. side of forehead.
2. Abrasion 1. 5 x 0.25 cm central part of forehead.
3. Abrasion 0.25 x 0.25cm root of nose.
4. Abrasion 0.5 x 0.25 cm dorsum of RI. hand. PW 4 Dr. B.P. Jain has proved the injury report Ex. P/4.
22. Thus, from the above, it appears that so far as the medical evidence pertaining to commission of offence of rape is concerned, it is nil.
23. So far as the above four injuries found on the person of the prosecutrix are concerned, it may be stated here that as per the statement of the prosecutrix PW 2 Monika herself, these injuries were caused by the accused appellant not at the time of commission of alleged rape on 27.5.2000 or 2.6.2000, but later on she was beaten by the accused appellant and thus, these injuries have no relevance so far as the commission of alleged rape is concerned.
24. Thus, in the present case, there remains solitary statement of the prosecutrix PW 2 Monika and the question for consideration is whether reliance on her solitary statement should be placed or not.
Whether corroboration is essential in rape cases before convicting an accused person ?
25. This problem was considered by Hon'ble Supreme Court earlier in the year 1951 in Rameshwar Kalyan Singh v. State of Rajasthan (2), and taking into considerations both sections 133 and 114(b) of Indian Evidence Act, answered the question in the following manner :-
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter or prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and injury case must find place in the charge before a conviction without corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such, for example, as its demearing unlikelihood of tutoring and so forth, may render corroboration unnecessary but that it is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or by them. There is no rule or practice that there must, in every case, be corroboration before a conviction can be allowed to stand.
Further, when corroborative evidence is produced it also has to be weighed and in a given case, as with other evidence even though it is legally admissible for the purpose on hand, its weight may be nil. It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear :-
(1) It is not necessary that there should be independent confirmation of every material circumstance in the case, apart from the testimony of the complainant or the accomplice should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it provable that the story of the accomplice (or complainant) is true and that is reasonably safe to act upon it.
(2) The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complaint that the accused committed the crime.
(3) The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another.
(4) The corroboration need not be direct evident that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime.
26. If prosecutrix is found habitual to intercourse, her statement in Order to base conviction of accused persons, must be corroborated in some material particulars from independent source as held by Hon'ble Supreme Court in Ram Murti v. State of Haryana (3).
27. In Gurucharan Singh v. State of Haryana (4), the Hon'ble Supreme Court has stated "As a rule of prudence, however, court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape on her has not been falsely implicated.
The Hon'ble Supreme Court has further stated in the above case that-
"The matter is not res-integra and this Court has, on more occasions than one, considered and enunciated legal position."
28. The Hon'ble Supreme Court in R. K. Agrawal v. State of Orissa (5), held.
"In a case where the victim is a child of six years, the medical examination of accused's genitals where presence of spermatozoa was considered as one of the circumstances sufficient corroborative piece of evidence.
29. On this aspect, Rafiqu v. State of UP (6), can also been seen.
30. On nature and extent of corroboration necessary for such offence the Hon'ble Supreme Court in Sheikh Zakir v. State of Bihar (7), has stated in the following manner :-
"Even though a victim of rape cannot be treated as an accomplice, the evidence of the victim in a rape case is to be treated almost like the evidence of an accomplice requiring corroboration. Hence there must be an indication in the course of the judgment that the judge had this rule in his mind when he prepared the judgment and if in a given case the judge finds that there is no need for such corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. In the case of a grown up and married woman it is always safe to insist on such corroboration. Whether corroboration is necessary it should be from an independent source but it is not necessary that every part of the evidence of the victim should be confirmed in every detail by independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence or from both."
31. The Hon'ble Supreme Court in State of Maharashtra v. Chandra Prakesh Kewalchand Jain (8), where the accused in rape case was a police officer, has stated "The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence."
On corroboration further stated-
"To insist on corroboration except in the rarest of rape cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as the case of an accomplice to a crime."
32. The law laid down in the above noted cases has been further approved by the Hon'ble Supreme Court in the following cases :-
(1) Karnel Singh v. State of M.P. (9) (2) State of Punjab v. Gurmit Singh (10)
33. The net result of above cases decided by Hon'ble Supreme Court by time to time can be summarised in the following manner: -
(1)The net result of above cases decided by Hon'ble Supreme Court by time to time can be summarised in the following manner :-
(2) That corroboration in such cases is, however, required as a matter of prudence and this rule of prudence has now almost hardened into rule of law.
(3) That the rule of prudence which has been hardened into rule of law is that the rule as to corroboration must be present in the mind of judge and must have been incorporated in the judgment.
(4) That if the evidence of the prosecutrix does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, corroboration should not be insisted upon.
(5) That the corroboration of the prosecutrix evidence may be dispensed with where the circumstances of a case make it safe to do so. But the reasons for dispensing with the necessity of such corroboration should be forthcoming in the judgment.
(6) That corroboration should ordinarily be required in the case of woman having attained majority and who is habitual to sexual intercourse as in such cases there is likelihood of her having levelled such an accusation of account of instict of self preservation or when the probabilities factor is found to be out of time.
(7) That the view that though corroboration should ordinarily be required in the case of a grown up woman, it is unnecessary in the case of a child of tender years is not correct whether corroboration is unnecessary is a question in every case.
34. If the victim is unwilling to yield to sexual intercourse, she is expected to receive injuries on her person. The absence of injuries on the body of the prosecutrix, generally, gives rise to an inference that she was consenting party to coitus. Where the prosecutrix had received multiple injuries on the various parts of her body it indicated that she offered resistance when she was subjected to sexual intercourse. It would be too much to hold that whenever a prosecutrix is found to have sustained no visible injury in a case of rape, consent on her part should be presumed. It would amount to leaving the unprotected girls at the mercy of the wolves of the society. The absence of injuries either on the accused or on the prosecutrix shows the prosecutrix did not resist but absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party.
35. Before proceeding further, something should be said about consent.
36. Consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind a person to permit the doing of the act complained of.
37. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent.
38. Where the prosecutrix had sufficient opportunity not only to run away from the house but she could have also taken the help of the neighbours and the medical evidence also indicated the there were no injuries on the person of the prosecutrix including her private parts, it can be said that she was a consenting party.
39. Consent or absence of it is generally gathered from the attendant circumstances.
40. Keeping in mind the above basic principles of law, the facts of the present case and the statement of the prosecutrix PW 2 Monika are being examined.
41. From perusing the report Ex. P/l lodged by the prosecutrix PW 2 Monika and other evidence, the following facts have emerged:-
(i) That the accused appellant had sex with the prosecutrix PW 2 Monika on 27.5.2000 and 2.6.2000 and both incidents were never told by her to anybody.
(ii) That in the report Ex. P/l as well as in the statement Ex. D/l of the prosecutrix recorded by police, the fact that she was given drug before committed rape on her by the accused appellant, has not been mentioned.
(iii) That in the report Ex. P/l, the fact that she narrated the incident of alleged rape even to the wife of the accused appellant, has not been mentioned.
(iv) That the fact that she was beaten by the accused appellant with musal has also not been found in the report Ex. P/l.
42. In her statement recorded in Court, the prosecutrix PW 2 Monika has stated that when she felt pain in stomach, she told about this to the accused appellant, who gave some tablet arid, thereafter, she slept and when she was in intoxication, the accused appellant committed rape with her. She has further stated that she slept continuously on the next whole day. Thereafter, she has narrated the incident, which took place on the roof after 5-6 days of previous incident, and on the very day, she did not inform about that incident to the wife of the accused appellant, but on the next day, she informed about that incident to the wife of the accused appellant and, thereafter, she was beaten by the accused appellant with musal, as a result of which she received injuries.
In cross-examination, she has admitted the following facts:-
(i) That she was brought by the accused appellant from Calcutta and she worked in the house of the accused appellant for near about two months, but she was not paid any salary.
(ii) That the fact that before committing rape with her by the accused appellant, she was given tablet of intoxication, has not been mentioned in the report Ex.P/l as well as in her statement Ex.D/l recorded by police.
(iii) That at the time of committing rape with her on 27.5.2000 and 2.6.2000, the accused appellant first made her undressed and, thereafter, committed rape with her and thereafter, she herself put on the clothes.
(iv) That the fact that she was beaten by sandasi has not been mentioned by her in her statement Ex.D/l recorded by police.
43. PW 6 Bhopal Singh is another witness, who has stated that the prosecutrix PW 2 Monika told him that she was beaten by the accused appellant, but she did not tell him that the accused appellant committed rape with her.
44. In my considered opinion, because of the following reasons, the statement of the prosecutrix PW 2 Monika does not inspire confidence and she was a consenting party and thus, the findings of the learned Addl. Sessions Judge (Fast Track) convicting the accused appellant for the offence under Section 376 IPC cannot be sustained :-
(i) That the medical evidence so far as the allegation of alleged rape is concerned, is nil and thus, from medical evidence, there is no corroboration to the statement of the prosecutrix PW 2 Monika.
(ii) That the fact that the prosecutrix did not receive any injury when accused appellant committed rape with her on 27,5.2000 and 2.6.2000 itself goes to show that she was a willing partner to the sexual intercourse.
(iii) That the fact that she did not tell about the alleged incidents of rape to anybody or even to the wife of the accused appellant further goes to show that she was a consenting party.
(iv) That the fact that on both incidents of alleged rape, she was first undressed and she herself put on the clothes, further goes to show that she was a consenting party.
(v) That hymen of the prosecutrix PW 2 Monika was found torn and vagina admitted two fingers easily and there were no tears present in the vagina and these facts go to show that she was habitual to sexual intercourse and this aspect also negatives the allegations of rape.
(vi) That the medical evidence, therefore, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the accused appellant. From this, the only irresistible inference can be that the prosecutrix was a consenting party.
(vii) That the fact that the prosecutrix did not raise any hue and cry on both incidents of rape, itself goes to show that she was a consenting party.
(viii) That the fact that the prosecutrix was unmarried girl and she was habitual to intercourse further goes to show that she was a consenting party. Furthermore, absence of injuries on the person of the prosecutrix negatives the allegation of rape and show that the accused appellant had intercourse with her with her tacit consent.
(ix) That the age of the prosecutrix was above 16 years and thus, she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever and since in this case, there is no evidence that the prosecutrix offered any resistance when the accused appellant committed rape on her on 27.5.2000 and 2.6.2000 and therefore, the allegations of rape cannot be accepted.
(x) That the fact that narration of alleged incidents of rape to the wife of the accused appellant is not found in the report Ex.P/1 itself goes to show that she made improvement when she was being examined in Court on this aspect.
(xi) That the prosecutrix washed out her clothes, which she was wearing at the time of alleged incidents of rape and thus, the corroborative evidence of clothes stained either with blood or semen is missing in this case and from this point of view also, theory of rape cannot be accepted. Had there been any stains of semen or blood on the clothes, which she was wearing at the time of alleged incidents of rape, they would have gone long way to prove the case of the prosecution about commission of rape and in absence of that, negatives the case of the prosecution.
(xii) That the injuries received by the prosecutrix have not no relevancy so far as the allegation of rape is concerned, as these injuries were not received by the prosecutrix PW 2 Monika at the time of alleged commission of rape on 27.5.2000 and 2.6.2000, but later on when she was beaten by the accused appellant.
(xiii) That no doubt in sexual offence, the prosecutrix is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars, but, however, since in the present case, the corroboration to the statement of the prosecutrix is not found in any other evidence as she remained silent over the alleged incident and, therefore, in such circumstances, statement of the prosecutrix PW 2 Monika cannot be said to be reliable and trustworthy being not corroborated with any other evidence and furthermore, she has made improvement when she was being examined in Court.
45. Thus, for the reasons stated above, looking to the entire facts and circumstances of the case, the only irresistible conclusion that can be drawn is that the prosecutrix PW 2 Monika when she had sex with the accused appellant on 27.5.2000 and 2.6.2000, she was a consenting party and she voluntarily participated in such act and, therefore, the statement of the prosecutrix PW 2 Monika on the point that she was forcibly raped by the accused appellant cannot be said to be reliable and trustworthy and in view of this conclusion, the findings of the learned Addl. Sessions Judge (Fast Track) by which the accused appellant was convicted for the offence under Section 376 1PC cannot be sustained and liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled to acquittal.
Accordingly, this appeal filed by the accused appellant Vinay Krishna Ghatak is allowed and the judgment and order dated 28,11.2001 passed by the learned Addl. Sessions Judge (Fast Track), Rajsamand are set aside and the accused appellant is acquitted of the charge framed against him.
Since the accused appellant is in jail, he be released forthwith, if not required in any other case.