Calcutta High Court (Appellete Side)
Maharaj Halder vs The State Of West Bengal & Anr on 8 July, 2026
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
(APPELLATE SIDE)
Present:
The Hon'ble Justice Rajasekhar Mantha
And
The Hon'ble Justice Smita Das De
CRA 281 of 2019
Maharaj Halder
Vs.
The State of West Bengal & Anr.
For the Appellant : Mr. Rajat Sinha Roy,
: Mr. Surajit Basu
For the State : Mr. Subrata Karmakar, Ld. Amicus
Curiae,
Hearing Concluded on : 03/07/2026
Judgment on : 08/07/2026
Smita Das De, J.:-
1.
The appellant/convict has challenged in the instant appeal a judgment
and order of conviction dated 18th February, 2019, of the Additional
District and Sessions 1st Court-cum-Special Judge under the POCSO
Act, 2012, at Sealdah, 24 Parganas (South), in Special Case No. 52 of
2018, thereby convicting the appellant under Section 6 of the POCSO
Act, 2012.
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2. Before entering into the arguments by the parties on the merits and
demerits of the impugned judgment, it is required that the FIR, evidence
and other relevant materials on record be looked into.
3. The FIR has been lodged by one, Lakhhmi Halder on 12 th October 2018
being registered as Tala Police station Case No. 98 of 2018 dated
12.10.2018 under Section 4 and 6 of the POCSO Act, 2012 and 376 (n)(i)
of the IPC. The FIR narrates the incident as follows:-
i) The complainant has stated therein that she along with the
appellant / her husband and two daughters reside at the
address 20/1/1, Belgachia Road, Kolkata 700037 within the
jurisdiction of Tala Police Station. Her younger daughter/ victim
is a 16 year old girl. The victim suddenly felt indisposed on 10 th
October, 2018 and had been brought to the R. G. Kar Hospital
with complaints of severe stomach pain. On Doctor’s advice she
has been immediately admitted therein. After several medical
examinations the victim has been found to be three months
pregnant. The complainant has further stated that due to foetus
developing in the fallopian tube she suffered profuse bleeding,
which rendered her condition critical. The Doctor advised
immediate termination of pregnancy. Accordingly, as per
medical advice the abortion has been carried out and the
patient has been shifted to the Intensive Care Unit. It has been
further stated in the FIR, that after regaining consciousness,
3the victim stated that, “My father Maharaj Halder is responsible
for this. He had physical relationship with me for past three-four
months. On the day before last Mahalaya, he forcefully made
physical relationship with me. My father told me that if I disclose
this to any one he would kill me and my mother.” The
complainant has stated in the FIR, that her husband, i.e. the
present appellant, is responsible for the incident and has
sought his punishment.
4. Charges have been framed against the appellant on 12 th December,
2018, under Section 4 and 6 of the POCSO Act, 2012 and 376(2) (i) of the
IPC.
5. During the trial the prosecution examined 11 witnesses including the
Investigating Officer. The appellant has been examined under Section
313 of CrPC and the Trial court has passed the judgment of conviction
and an Order of sentence, which is impugned in the instant appeal.
6. From amongst the 11 witnesses cited by the prosecution, the PW11 is
the Investigating Officer, PWs 5, 6, 7 and 8 are the Doctors, PWs 2 and 9
are the complainants mother of the victim and her elder sister
respectively and close relatives of the victim PW4, Suman Singh being
the son from the first wife of the present appellant and a close
acquaintance of the family, PW10 is the friend of the elder sister of the
victim, PW3 is a record keeper of the hospital and is a formal witness and
finally PW1 is the victim girl herself.
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7. The victim girl, and her elder sister with the complainant mother (PWs 1,
9 and 2 respectively) have supported the prosecution case in their
depositions.
8. On 2nd January, 2018, the victim deposed that her father has sexually
assaulted over the preceding previous three months. She has been
hospitalized on account of abdominal complications and upon
examination found to be pregnant. She further deposed that she has
already narrated the incident to the Magistrate who recorded her
statement under 164 CrPC, and also to the Doctor who has been treating
her. The victim identified her statement recorded by the Magistrate,
doctor as well as the appellant, who has been present in the Doc. The
complainant / PW2 corroborated the evidence of the victim / PW1 and
stated in her examination in chief that the victim has disclosed the
appellant’s involvement in the said incident. The victim’s elder sister /
PW9 have deposed that she came to know about the incident two days
after Mahalaya during the night. She stated that she learnt from the
Doctor that her sister has been suffering from ECTOPSI pregnancy with
clotted blood in her abdomen. She further stated that she has been
informed by her sister that the appellant has been responsible for the
same. The PW9 is the scribe of the FIR and has deposed that she drafted
it at the instance of her mother.
9. Two other witnesses have been cited by the prosecution, as independent
witnesses namely, PWs 4 and 10. Amongst them Suman Singh / PW4 is
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the son from the first wife of the present appellant. He has not disclosed
the said fact in his evidence. He deposed that upon reaching the hospital
he came to learn about the victim’s pregnancy of which he did not have
any prior knowledge. He further deposed that he has been informed by
the victim’s sister. Similarly PW10 has stated in her evidence that she
reached the hospital after being informed by PW9 about the victim’s
pregnancy.
10. Upon examining the evidence of the medical witnesses i.e. PWs 5,
6, 7 and 8, the following facts have emerged. PW5 has examined the
victim on 26th October, 2018 and upon examination she opined that
there has been evidence of ruptured hymen, which is suggestive of
sexual intercourse in the past. Evidence of recent pregnancy has also
been noted. She further noted, a partly healed surgical scar on the lower
and anterior abdominal wall, indicating intervention 7 – 10 days prior.
The Doctor also recorded the history given by the victim, namely
repeated sexual abuse by her father /the present appellant over the past
few months and her sudden illness on 8th October 2018 which resulted
in unconsciousness and necessitated immediate hospitalization. The
findings recorded in the medical examination report as an exhibit in the
case are quoted below:-
“1. abdomen flabby, linea ligra (faint) detected, a partly healing
surgical scar of 5 and ½ length 9 stich marks placed 4 inches
below umbilicus, 3.5 inches to the right of anterior mid line of the
right side and 2 inches on the left side, 3 inches below the right
anterior superior iliac spine (right end) and similarly left end; scar
6is transparently placed over the lower part of the anterior
abdominal wall mildly pigmented at places. No. 2. General
examination—- No. 1 labia majora darkened slightly flattened, no
injuries presence, No. 2. labia minora thickened, darkened, mildly
protruding to labia majora on full abduction of the thighs. No
injuries presence. No. 3 hymen – faibriated, an old heal tear at 3 O’
Clock position. No. 4 vagina one finger loosly moving in all
direction, Mildly blood stained serous discharged. No injuries
detected.”
11. On 12th October 2018 the PW6 examined the victim and it has
been noted by the Doctor with regard to the history of the alleged
commission of rape by the present appellant. The element of commission
of rape found by the Doctor is quoted below:-
“1. Labia Majora pigmented, no injury, nipple black – hymen
raptured — old raptured. Per vaginal examination I found no active
bleeding.”
12. PW7 has deposed that he has been present at the time of
examination of the victim by PW6 on 13th October 2018 and witnessed
the entire process including the preparation of the reports which he
signed. PW8 has examined the appellant and prepared the Potency
Report, which has accordingly been exhibited during the trial. The
finding of PW8 has been that the appellant is potent and capable of
performing sexual intercourse. However, in cross examination he stated
that the sperm count of the person has not been determined during the
examination.
13. On the basis of the evidence, the trial Court held that the guilt of
the appellant has been proved beyond reasonable doubt. Accordingly, the
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appellant has been convicted and sentenced vide the impugned judgment
dated 18th February 2019.
14. Mr. Rajat Sinha Roy, the Learned Counsel appearing for the
appellant has argued that the entire prosecution case has been
fabricated to unjustifiably implicate the appellant. He contends that the
prosecution materials are unfounded and baseless. It is further
submitted that the deposition of PW4 regarding regular visits to the
victim’s house constitutes a material fact that raises doubt about the
credibility of the case. Furthermore, a conviction cannot rest solely on
the evidence of the victim and her mother.
15. The Learned Counsel for the appellant refers to the FIR to submit
that the victim has stated to have been hospitalized and operated on 10 th
October 2018 while FIR has been lodged on 12 th October 2018. The
mother, PW1 has not deposed on this fact in her evidence. Though
according to him she should have deposed on the said issue which
thereby amounts to deliberate suppression of the relevant and material
facts in evidence by the said witness, which raises serious doubts as to
the truthfulness of her testimony. It is further submitted that the delayed
lodging of the FIR suggests an afterthought and tutored version on the
part of the complainant. He also pointed out that during the cross-
examination of the said witness it has been revealed that since the
witness is an illiterate person, the FIR could not have been written by
them. In defense, it has been submitted that the admission of the
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witness regarding their close acquaintance with and the regular visit by
PW4 / Suman Singh to the house of the victim, raises substantial doubt
regarding the alleged involvement of the present appellant in the offence
and is only indicative of his innocence. It is submitted that since the
evidence provided by the victim and her mother is not trustworthy, a
judgment of conviction and sentence cannot be sustained solely on the
basis of the same. He has therefore, pressed for setting aside the
impugned judgment and order and for the release of the appellant on a
finding of not being guilty of the offence alleged.
16. The State is represented by Mr. Subrata Karmakar, the Learned
AMICUS, CURIAE. According to the State the evidence of PW2 and in
particular, that of the victim, is unimpeachable in nature. According to
the State on the basis of the evidence of atleast these two witnesses, the
conviction and the sentence of the present appellant are fully
substantiated. Additionally the Potency report of the appellant as well as
the Medical evidence lends strong support to the prosecution case. It is
submitted that any discrepancies, being minor in nature, would not
disprove the case established on record through evidence beyond
reasonable doubt. Hence, it has been submitted that the impugned
judgment calls for no interference by this court and the instant appeal
may be dismissed for the reasons as stated above.
17. In this context it is pertinent to observe that the law is now well
settled that corroboration, by its nature is only a rule of prudence and
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not a statutory requirement. For an offence of aggravated penetrative
sexual assault does not depend upon the number of witnesses examined
by the prosecution. The testimony of a solitary witness, including that of
the victim herself, if found wholly reliable, trustworthy and of sterling
quality, is sufficient to sustain a conviction without any independent
corroboration. It is equally settled that where the testimony of such a
witness suffers from inherent improbabilities, material inconsistencies,
unreasonable conduct or circumstances raising reasonable doubt
regarding its truthfulness, the court would be justified in seeking
assurance from other evidence and in absence thereof extend the benefit
of doubt to the accused. Thus, in the present case if the evidence of the
victim stood unimpeached, unshaken, and of Stirling quality the
conviction of the appellant could have been sustained solely on the
strength thereof.
18. The legal position governing appreciation of the testimony of a
prosecutrix is now well settled. In State of Punjab versus Gurmit
Singh reported in (1996) 2 SCC 384, the Supreme Court held that the
testimony of a victim of sexual assault stands on a footing higher than
that of an injured witness and ordinarily does not require corroboration.
However, the Court simultaneously emphasized that such testimony
must inspire confidence and must be free from circumstances giving rise
to doubt regarding its truthfulness. Thus, while corroboration is not a
rule of law, credibility remains the indispensable foundation of
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conviction. The aforesaid principle has been further explained in
Narender Kumar versus State (NCT of Delhi) reported in (2012) 7 SCC
171, wherein it has been held that though conviction may rest upon the
sole testimony of the prosecutrix, such testimony must be of such quality
that the Court can safely place implicit reliance thereon. The Court
further held that where the evidence suffers from infirmities or creates
suspicion regarding its veracity, the Court would be justified in seeking
corroboration before recording a conviction.
19. The doctrine of a “sterling witness” has been authoritatively
formulated in Rai Sandeep @ Deepu versus State (NCT of Delhi)
reported in (2012) 8 SCC 21. The Supreme Court held that a sterling
witness is one whose version is of such quality that it remains consistent
throughout, withstands cross-examination, accords with surrounding
circumstances and can be accepted without hesitation. Such testimony
should be natural, probable and free from embellishment. Tested on the
touchstone of the said doctrine, the evidence of PW.1 in the present case
does not satisfy the characteristics of a sterling witness. The prolonged
silence of the victim, the emergence of the accusation only after detection
of pregnancy and the absence of any contemporaneous disclosure create
circumstances rendering the testimony susceptible to doubt and
therefore incapable of being accepted without careful scrutiny. Upon a
careful scrutiny of the evidence on record, this Court finds several
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circumstances which prevent the testimony of the victim and her mother
from attaining the status of wholly reliable evidence.
20. The prosecution case proceeds on the allegation that the appellant,
being the father of the victim, has repeatedly subjected her to sexual
intercourse for a period of approximately three months. Significantly,
during the entire period of such alleged repeated acts, the victim
admittedly did not disclose the matter to any person whatsoever. She did
not disclose the same to her mother, who has been residing in the same
household; she did not disclose the same to her elder sister; nor did she
disclose the same to any relative, friend or neighbour. More importantly,
even when she became seriously ill and suffered severe abdominal
complications requiring urgent hospitalization, no allegation against the
appellant surfaced. It is only after the medical examination at the
hospital revealed that the victim has been pregnant that the allegation
implicating the appellant came to be disclosed.
21. The chronology of events assumes considerable importance. The
FIR itself records that on 10th October 2018 the victim has been admitted
to the hospital with severe abdominal pain. Medical examinations
revealed pregnancy. The pregnancy has been found to be ectopic in
nature, requiring immediate medical intervention. The pregnancy has
been terminated vide surgical procedure following which immediate
medical attention has been provided.
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22. The abortion proceedings and subsequent statements reveal that
the allegations against the appellant has been disclosed only after the
event. Consequently, the FIR has been registered on 12 th October 2018.
Thus, the accusation against the appellant emerged only after the
pregnancy has been medically detected and the abortion has been taken
place. Such chronology constitutes a relevant circumstance in assessing
the credibility of the prosecution version.
23. This Court is conscious of the settled principle that delay in
disclosure of sexual offences is not necessarily fatal and cannot be
viewed with the same rigidity as in ordinary criminal cases. Victims may
remain silent due to fear, trauma, shame or coercion. Nevertheless,
where prolonged silence is sought to be explained on the ground of threat
or intimidation, the explanation must appear reasonably probable in the
backdrop of the proved facts and circumstances. In State of Himachal
Pradesh versus Sanjay Kumar reported in (2017) 2 SCC 51 and
several earlier decisions, it has been recognised that victims often remain
silent due to fear, shame, social stigma or psychological trauma.
However, the principle does not imply that every delayed disclosure must
automatically be accepted irrespective of surrounding circumstances.
The Court must still examine whether the explanation for silence appears
probable in the factual backdrop of the particular case.
24. In the considered view of this court having regard to the totality of
the circumstances, the conduct of the victim appears unnatural and
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inconsistent with normal human behaviour. She remained silent during
the entire period of the alleged repeated acts, during her illness, during
her admission to hospital and even when examined by the Medical
Professional. The accusation surfaced only after medical examination
revealed pregnancy and after the abortion procedure has already been
performed. Such conduct does not appear consistent with the ordinary
course of human behaviour and therefore constitutes a relevant
circumstance affecting the weight to be attached to her testimony. The
conduct attributed to the victim, viewed in the totality of the
circumstances, appears unnatural and casts serious shadow upon the
reliability of the prosecution version.
25. The testimony PW1 is not a “sterling quality”. There has been
complete silence during the alleged repeated acts denying illness,
hospitalisation and medical examination. The accusation emerged only
after the pregnancy has been detected and abortion performed. In the
present case no DNA, Forensic evidence connects the appellant to the
pregnancy. Potency alone is not a proof of commission. Suspicion cannot
replace proof of and that the benefit of doubt must be granted.
26. Another circumstance which considerably affects the credibility of
the prosecution case is the evidence of PW.2, the complainant and
mother of the victim. The FIR gives a detailed account of the
hospitalization of the victim, the discovery of pregnancy, the medical
complications arising therefrom and the abortion which has been carried
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out before the FIR has been lodged. Surprisingly, while deposing before
the Court, PW.2 did not disclose the material facts relating to the
hospitalization and abortion of the victim prior to the lodging of the FIR.
Such omission pertains not to a peripheral aspect but to the very genesis
of the prosecution case. The law is well settled that omissions touching
the core of the prosecution case constitute material omissions affecting
the credibility of the witness. Suppression of a material circumstance by
a key witness renders the testimony vulnerable and prevents the Court
from treating such evidence as wholly trustworthy. In this regard,
reference may be made to the principle laid down by the Supreme Court
in State of Rajasthan versus Kalki reported in (1981) 2 SCC 752,
where a distinction has been drawn between minor discrepancies arising
from errors of observation and material omissions affecting the
substratum of the prosecution case. Where an omission touches the
genesis of the occurrence or the very foundation of the prosecution story,
it ceases to be a mere discrepancy and assumes substantial significance.
The omission of PW.2 regarding the hospitalization and abortion prior to
lodging of the FIR pertains directly to the genesis of the prosecution case
and therefore materially affects her credibility.
27. The evidence of the remaining witnesses also does not provide
independent corroboration of the prosecution case. PW.9, the elder sister
of the victim, admittedly derived knowledge regarding the alleged
involvement of the appellant from the victim herself. PW.10 similarly
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came to know about the incident through PW.9. PW.4 also possesses no
direct knowledge regarding the alleged acts and merely came to know of
the pregnancy after reaching the hospital. Thus, the evidence of these
witnesses is substantially hearsay in nature and cannot constitute
substantive proof of the alleged offence. The settled rule of evidence is
that hearsay evidence is ordinarily inadmissible to prove the truth of the
facts asserted and carries little probative value unless it falls within
recognised exceptions. The rule against hearsay constitutes one of the
fundamental principles of the law of evidence. The rationale underlying
the rule is that the person who originally made the statement is not
subjected to oath, cross-examination or judicial scrutiny. Consequently,
hearsay evidence ordinarily carries limited evidentiary value and cannot
substitute direct evidence of the occurrence. The evidence of these
witnesses, therefore, furnishes no independent assurance regarding the
truthfulness of the accusation. Consequently, the testimony of these
witnesses does not materially strengthen the prosecution case.
28. The medical evidence adduced through PWs.5, 6, 7 and 8
establishes certain medical facts beyond doubt. It establishes that the
victim had conceived, the pregnancy is abnormal and ectopic in nature,
consequently, surgical intervention became necessary and there has
been signs indicative of prior sexual intercourse. Thus, the medical
evidence clearly proves the factum of pregnancy and prior sexual activity.
However, it is equally settled that medical evidence can corroborate the
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occurrence of sexual intercourse but ordinarily cannot identify the
perpetrator thereof. None of the doctors had any personal knowledge
regarding the identity of the person responsible for the pregnancy.
29. The case history recorded by the doctors implicating the appellant
has been based exclusively upon the statements allegedly made by the
victim. Such history recorded in medical documents is not substantive
evidence of the truth of its contents. The doctor merely records what is
narrated by the patient. If the source narration itself is doubtful, the
repetition of that narration in medical records cannot elevate it into proof
of the fact asserted. Therefore, while the medical evidence establishes
pregnancy, it does not independently establish the culpability of the
appellant.
30. It is further noteworthy that no scientific evidence has been
produced to connect the appellant with the pregnancy. No DNA profiling
or comparable forensic examination has been brought on record. The
potency report merely indicates that the appellant has been capable of
sexual intercourse. Potency is merely evidence of capability and not
evidence of commission. Such evidence does not advance the prosecution
case in any significant manner.
31. The jurisprudential foundation of criminal law requires the
prosecution to establish its case beyond reasonable doubt. The
presumption of innocence continues throughout the trial and remains
available to the accused unless displaced by cogent, reliable and
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convincing evidence. Suspicion, however grave, cannot substitute proof.
In Kali Ram versus State of Himachal Pradesh reported in (1973) 2
SCC 808, the Supreme Court described the presumption of innocence as
a golden thread running through the web of criminal jurisprudence. The
Court held that if two views are reasonably possible on the evidence, the
one favourable to the accused must necessarily be adopted. Similarly, in
Sharad Birdhichand Sarda versus State of Maharashtra reported in
(1984) 4 SCC 116, the Supreme Court reiterated that suspicion,
however grave, cannot take the place of proof and that every
incriminating circumstance must be established with certainty before a
conviction can be recorded. Equally, moral conviction cannot replace
legal proof. The Court must distinguish between proof that the victim has
been pregnant and proof that the appellant has been responsible for the
pregnancy. While the former stands established by medical evidence, the
latter remains dependent entirely upon the credibility of the victim’s
subsequent accusation.
32. The motive and conduct of victim create a probable alternate
hypothesis and contribute to reasonable doubt. There is evidence on
record of discord between the appellant and the second wife. It is also in
evidence that the appellant has been paying the first wife from the funds
generated from the hotel run outside the KMC office. This financial
dispute and domestic discord furnishes a probable motive for false
implication and cannot be ignored in assessing the belated allegation.
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33. The record further indicates visit and intimacy between the victim
and her step brother. Further the age of the victim, stated to be 15-16
years indicates a level of maturity.
34. This circumstance is relevant while assessing whether the victim
has been in a position to resist on to inform her mother and sister of
alleged acts, by her father or to exercise independent volition in her
association including with Suman Singh. The cumulative effect of the
circumstances does not accord with the prosecution version of
continuous coercion without any disclosure.
35. The cumulative effect of the circumstances discussed above,
namely, the complete absence of any prior disclosure by the victim; the
emergence of the accusation only after detection of pregnancy and
abortion; the material omission by PW.2 regarding hospitalization and
abortion prior to lodging of the FIR; the largely hearsay nature of the
evidence of supporting witnesses; the absence of independent
corroborative evidence; the absence of scientific evidence linking the
appellant to the pregnancy; and the inability of the medical evidence to
identify the perpetrator, creates substantial and reasonable doubt
regarding the prosecution case. In criminal jurisprudence, whenever two
views are reasonably possible from the evidence on record, the view
favourable to the accused must prevail. The evidence of the victim and
PW.2, when tested on the anvil of the principles governing appreciation of
testimony of key witnesses, does not inspire the degree of confidence
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required for sustaining a conviction under a penal statute carrying severe
consequences. Their testimony cannot be classified as wholly reliable or
of sterling quality so as to exclude every reasonable hypothesis
consistent with innocence. The evidence of the victim and her mother
does not attain the standard of complete reliability contemplated in
Gurmit Singh (supra), Narender Kumar (supra) and Rai Sandeep
(supra). The material omissions, unexplained conduct, delayed
disclosure, hearsay nature of supporting evidence and absence of
scientific corroboration collectively generate reasonable doubt regarding
the prosecution case.
36. Applying the aforesaid principles, this Court finds that while the
prosecution has successfully established that the victim has been
pregnant and has undergone abortion, it has failed to establish beyond
reasonable doubt that the appellant has been responsible for such
pregnancy. Consequently, this Court is of the considered opinion that the
prosecution has failed to establish the guilt of the appellant beyond all
reasonable doubt. The appellant is therefore entitled to the benefit of
doubt.
37. The appeal accordingly succeeds. The judgment of conviction and
order of sentence impugned dated 18th February, 2019, are set aside.
The appellant is acquitted of all the charges levelled against him. He
shall be released forthwith from custody, if his detention is not required
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in connection with any other case. The bail bonds, if any, shall stand
discharged.
38. Let the TCR along with a copy of this judgment be returned back to
the trial Court for necessary action.
39. All parties shall act on the server copy of this order downloaded
from the official website of this Court.
I Agree.
(Rajasekhar Mantha, J.) (Smita Das De, J.)
