Calcutta High Court (Appellete Side)
Sk. Rafijul @ Tutul vs State Of West Bengal on 4 August, 2026
Author: Arijit Banerjee
Bench: Arijit Banerjee
2026:CHC-AS:1177-DB
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
CRA (DB) 54 of 2024
Sk. Rafijul @ Tutul
Vs.
State of West Bengal
With
CRA (DB) 74 of 2024
With
CRAN 1 of 2024
Ukil Ali @ Akil Ali
Vs.
State of West Bengal
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the Appellants in CRA : Mr. Sudipto Maitra, Sr. Adv,
(DB) 54/24 Mr. Vijay Verma,
Mr. Dwaipayan Biswas
Mr. Anik Bhattacharya
...........Advocates
For the appellants in CRA : Mr. Santanu Talukdar
(DB) 74/24. Mr. Monojit Debnath
........... Advocates
For the State : Mr. Madhusudan Sur, ld. APP
Mr. Nirupam Dhali
.........Advocates
Reserved on : 07.05.2026
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Judgment on : 04.08.2026
Apurba Sinha Ray, J.
1. The judgment and order of conviction dated 24.01.2024 and 25.01.2024
passed by the learned Additional Sessions Judge, 2nd Court, Tamluk,
Paschim Medinipur in Sessions Trial No. 9(8)16 arising out of POCSO
Case no. 78 of 2014 convicting the appellant under Sections
364/34/302/376D/120B of the Indian Penal Code and also under
Section 6 of the POCSO Act has been challenged on the grounds, inter
alia, that the learned Special Judge has unnecessarily placed reliance
on the alleged last seen theory, that the Court has also misinterpreted
the present law on extra judicial confession, that although several
witnesses improved the version of the prosecution case during trial, the
learned Trial Judge had relied upon those improved versions of the
prosecution witnesses.
2. Mr. Maitra, learned counsel appearing for the appellant Sk. Rafijul @
Tutul has relied upon the following judgments in support of his
contention.
I. Manoj alias Munna vs. State of Chhattisgarh reported
in AIR 2026 SC 241
II. Sharad Birdhichand Sarda vs. State of Maharashtra
reported in 1984 SCC (Cri) 487
III. Smt. Basanti w/o prabhu vs. State of Himachal
Pradesh reported in 1987 3 SCC 227
IV. State of MP through CBI and ors. Vs. Paltan Mallah
and ors. reported in 2005 3 SCC 569
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V. Darshan Singh vs. State of Punjab reported in 2024 2
SCC (CRI) 126
VI. Vimal Suresh Kamble vs. Chaluverapinakeo Pal S.P
and anr. Reported in 2003 3 SCC 175
VII. Siddanki Ram Reddy vs. State of Andhra Pradesh
reported in 2010 3 CC.r LR (SC) 28.
VIII. Mahendra Singh & Ors. Vs. State of Madhya Pradesh
reported in 2022 2 Crimes 319 SC
IX. Naresh Anija alias Naresh Kumar Aneja vs. State of
Uttar Pradesh & Anr. Reported in 2025 1 SCC
(CRI)766.
3. The factual matrix of the case is as follows:
‘On 12.10.2014 at 10.35 hrs the de facto complainant of this case
PW-1/father of victim girl, lodged a written complaint before the
Officer-in-charge of Belda P.S. alleging inter-alia that her sixteen-
16 years minor daughter was a friend of ‘S’, another girl of their
village. On 11.10.14 at about 07.00 p.m. ‘S’ called his daughter
over the telephone. Accordingly the victim girl went with her. After
that, his daughter was missing. Thereafter, the local villagers
asked ‘S’ about it. Then she confessed that she forcefully handed
over the victim girl to her boy friend Rafijul @ Sk. Tutul. According
to their prior plan Rafijul came to their village in a maruti car with
his friends and driver of the maruti car and they kidnapped the
victim girl and fled away from that place by the said car.
Thereafter, the villagers went to the house of Rafijul at Khandrui
village but Rafijul was not there as he had fled away. On
12.10.14 at about 09.00 a.m he was informed from Pataspur PS
that he should go to Belda PS. After going there, he came to know
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that the dead body of his daughter was found beside O.T Road at
Belda. He identified the dead body of his daughter. It is alleged
that according to their criminal conspiracy ‘S’, her boy friend Sk
Rafijul and Ukil Ali kidnapped his minor daughter by maruti car
no. WB 36A/5049. Thereafter they murdered his daughter and
the body was thrown on O.T Road. The driver of the said maruti
car was Bisu Ghorai. It is further alleged that ‘S’ confessed that
the son of the de facto complainant refused to make any
relationship with ‘S’ as such, out of revenge ‘S’ handed over the
victim to the accused.’
4. After the investigation was over and on receipt of the chargesheet, the
appellants along with another accused Bishu Gorai were charged under
Sections 364/34, 376 D, 302/34, 201/34, 120B of IPC and 6 of the
POCSO Act. After recording the deposition of 28 witnesses, the learned
Special Judge has convicted and sentenced the three accused persons
under Sections 364/34/376D/302/34/120B of the IPC and Section 6 of
the POCSO Act. From the records it appears that Sk. Rafijul filed a
criminal appeal being No. CRA (DB) 54 of 2024 whereas another convict
Ukil Ali @ Akil Ali has filed CRA (DB) 74 of 2024.
5. Both the appeals are taken up for disposal by this common judgment.
6. From the impugned judgment it appears that the learned Trial Judge has
relied upon the allegation that the convicts were present at the spot and
the victim was last seen with the convicts. It is further revealed that the
learned Trial Judge has also relied upon the alleged extra judicial
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confession of one CCL, that is, ‘S’ who was the friend of the victim ‘T’.
The learned Trial Judge has also relied upon the deposition of PW 2 Sk.
Raimat who allegedly saw the convicts present at the spot wherefrom the
victim was abducted. He also saw the convicts who were waiting in a
Maruti Van. The learned Trial Judge has considered the deposition of PW
5 Nazrul Mallik who saw the convicts on the date of incident at Kharai
bazar when the present appellant Rafijul alongwith other convicts
stepped down from a steel coloured Maruti van. PW 5 has also deposed
that the convicts told him that they were going to the house of ‘S’. The
allegation that the victim’s mobile phone was recovered from the
possession of the appellant Rafijul was also considered by the learned
Special Judge in favour of the prosecution.
7. It appears that learned Trial Judge has endorsed the view of the
prosecution that although no direct evidence is adduced regarding
murder and rape of the victim girl but common intention of the accused
persons can be inferred from facts and circumstances of the case.
Court’s view:
8. After going through the materials on record, it appears that this is a case
of circumstantial evidence and the chain of events may be narrated as
hereunder.
i) Victim ‘T’ received a phone call from her friend ‘S’, as per the
deposition of the mother of the victim and other witnesses.
ii) The victim left her house to meet her friend ‘S’.
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iii) According to PW 2 he saw 3 convicts were waiting in a Maruti
Van.
iv) According to the prosecution, PW 2 saw the victim ‘T’ and her
friend ‘S’ were coming towards a stationary Maruti van.
v) The victim did not return to her house for a considerable period
of time.
vi) Her mother became anxious and started searching for her
daughter.
vii) The daughter being not found, the mother of the victim alerted
her neighbours and her husband.
viii) Search for the victim was carried on at the instance of the
parents and neighbours of the victim.
ix) The victim’s friend ‘S’ was not found in her house and
subsequently, she was found in the house of her grandmother
which is a few yards away from her house.
x) ‘S’ was interrogated by the parents and other neighbours.
xi) Initially, she did not disclose anything. xii) Subsequently, she divulged that she handed over the victim to
her boyfriend and the latter’s friends who took the victim to an
unknown place in a Maruti van. The father and other
neighbours including ‘S’ went to the house of the appellants at
Khandrui village but neither the convicts nor the victim was
found.
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xiii) In the morning the dead body of the victim ‘T’ was found beside
Orissa Trunk Road.
xiv) Subsequently, the 3 convicts were arrested and their mobile
phones were recovered.
xv) It is also alleged that one mobile phone of the victim was
recovered from the possession of the appellant Rafijul.
xvi) One steel coloured Maruti van was seized from one of the
convicts namely Bishu Ghorai.
xvii) It is alleged that blood stains, signs of semen etc. were found in
the seats and footsteps of the said car and the same were sent
for chemical examination.
Extra judicial confession:
9. Needless to mention, a confession made by an accused outside of Court
or to any person other than a Judicial Magistrate is historically viewed as
a weak piece of evidence in Indian criminal jurisprudence, but at the
same time, it can be said that if certain stringent conditions are fulfilled,
such extra judicial confession can be used by the Court with some
supporting corroborative evidence. Neither Indian Evidence Act, 1872 nor
Bharatiya Sakshya Adhiniyam, 2023 explicitly define the term ‘extra
judicial confession’, but its admissibility and evidentiary value emerge
from the general principles governing confessions. For an extra judicial
confession to form the basis of the conviction, the prosecution must
establish three primary conditions.
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Firstly, the voluntariness of confession: The confession must be free from
any threat, inducement or promise as prohibited under Section 24 of the
Evidence Act.
Secondly, the truthfulness as well as trustworthiness of such confession:
The Court must be convinced that the statement is true and made by a
person in a sound state of mind without coercion.
Thirdly, the credibility of the witnesses: Since the confession is proved
through the testimony of the person to whom it was made, the credibility
and independence of that witness are paramount. Therefore, the thumb
rule is that as a rule of prudence rather than law, Courts generally seek
corroboration in material particulars from independent evidence before
relying solely on an extra judicial confession.
10. In this case, the situation is quite different. The prosecution has
relied heavily upon the alleged extra judicial confession of the CCL who
was not tried by the learned Trial Judge during the prosecution of the
appellants since the CCL being a juvenile was being tried separately
under the provisions of Juvenile Justice Act. Therefore, there was no
chance to confront the said accused (CCL) over such alleged confession
nor even during examination under Section 313 Cr.P.C., since trials were
different.
11. In this case the learned Public Prosecutor has categorically argued
that the witnesses namely PW 1 father of the victim girl, PW 7, the
mother of the victim girl, PW 2 Sk. Raimat, PW 3 Sk. Sirazuddin, PW 4
Ilius Mallick, PW 6 Sk. Imran Ali, PW 19 Abdul Hakim Mallick, PW 20
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Sartaz Hossain, the brother of the victim have deposed before the Court
that the friend of the victim (CCL) confessed before them that she called
the victim ‘T’ over telephone and thereafter, handed over her to the 3
convicts on the relevant date and time. Apart from PW 20 Sartaz
Hossain, the other abovenamed witnesses have stated before the Court
that ‘S’ further confessed before them that as the brother of the victim ‘T’
refused to carry on his love relation with her, she did the same to take
revenge.
12. In Smt. Basanti w/o prabhu (supra), the Hon’ble Apex Court has
been pleased to hold that extra judicial confession of a co-accused
cannot be used against an accused.
13. In the State of MP through CBI and Ors. (supra), the Hon’ble
Apex Court was also pleased to hold that under Section 30 of the
Evidence Act, the extra judicial confession made by a co-accused could
be admitted only as a corroborative piece of evidence. In the absence of
any substantive evidence against the accused persons the extra judicial
confession allegedly made by another accused loses its significance and
there cannot be any conviction based on such extra judicial confession.
In the case in hand, according to prosecution, the FIR as well as the
statements of three witnesses under Section 164 Cr.P. before the Judicial
Magistrate has revealed that the CCL made such a confession at the
relevant point of time when she was continuously interrogated by the
parents and neighbours of the CCL. The question is whether or not such
alleged extra judicial confession can be the sole basis to convict the
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accused. It is well settled that such extra judicial confession of a co-
accused is the weakest piece of evidence and there must be some
substantive piece of evidence in support of such extra-judicial
confession.
14. PW 2 in his statement under Section 164 Cr.P.C. has also
indicated that ‘S’ confessed that she sent victim ‘T’ with her friend Tutul.
She has also stated before them that she knew the house of Tutul and
asked the villagers to accompany her so that the victim could be brought
back. He has made more or less same statement in his deposition. The
statement of PW 6, Sk. Imran Ali before the Judicial Magistrate was that
after visiting the house of the victim on the relevant night of occurrence
he came to know that ‘S’ forced the victim to board the car of Tutul. He
did not divulge from whom he came to know such fact. However, in his
deposition before the learned Court he stated that ‘S’ confessed before
them that she handed over the victim to Rafijul and others. So, there is
an improvement of the prosecution case in this regard at the instance of
PW 6.
15. PW 5 Nazrul Mallick has stated before the Judicial Magistrate that
he also came to know that victim ‘T’ was called by ‘S’ and thereafter ‘S’
compelled her to board the Maruti van of the Tutul. In his deposition, he
has made more or less the same statement. So, he did not hear ‘S’ to
confess. No doubt, the deposition of PW 1 , PW 2, PW 7, PW 3 and the
FIR were consistent in showing that there was confession from ‘S’
regarding the complicity of the appellants but such alleged confession of
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a co-accused cannot be used against other accused persons unless there
are other materials showing the involvement of the said other accused
persons.
The missing links:
16. In this case, it appears that the prosecution has tried to bring
other materials on record in support of the involvement of the present
appellants in commission of the crime. According to the prosecution, the
mobile phone of the victim/ the mother of the victim was recovered from
the possession of the present appellant Rafijul without sim card. The
seizure list witnesses turned hostile. No effort was taken from the side of
the prosecution to place such mobile phone without sim card for Test
Identification with the help of the parents of the victim. Even during their
examination before the Trial Court the said mobile was not shown to the
parents of the victim to identify the same as mobile phone of the victim
or her mother. The prosecution has relied upon some CDRs but they
have not been marked as Exhibits. Although the prosecution has tried to
show from CDRs that the mobile phone of the mother of the victim
received calls from the phone numbers of other concerned persons, the
same does not prove that the mobile without sim card allegedly recovered
from Rafijul actually belonged to the victim or her mother. Moreover, the
CDR remains unexhibited. This is a serious shortcoming in the case of
the prosecution. Had it been proved beyond doubt that the mobile phone
of the victim or her mother was recovered from the possession of the
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appellant Rafijul, it would have given sufficient strength to the
prosecution case against the appellant.
17. Furthermore, the FSL report remains inconclusive. There is no
matching of DNA of the convicts with the vaginal swab of the victim.
Voluntariness of the alleged confession:
18. Another aspect which should not be lost sight of by us is that the
depositions of some of the witnesses are to the effect that initially the
friend of the victim i.e. ‘S’ did not divulge anything but subsequently,
when she was pressurised by her father and PW 3 Sk. Serajuddin, a
member of the then Panchayat, ‘S’ allegedly confessed before them that
she had compelled the victim to board the Maruti van brought by the
appellant and his friends for abduction of the victim. Therefore, the
alleged confession made by ‘S’ cannot be said to be made voluntarily or
made without coercion. In view of the above the alleged extra judicial
confession made by ‘S’ cannot be said to be a legal one and is thus not
acceptable in the eye of law.
Last Seen Together: Improvement of the case during trial
19. Nobody saw the victim with the appellant Rafijul and his friends in
the said Maruti van.
20. In this case, although PW 2 Sk. Raimat has stated before the Court
that he saw three convicts were waiting in a Maruti van at the relevant
point of time and he saw that victim ‘T’ and her friend ‘S’ were coming
towards the Maruti van, PW 2 did not state such thing at the time of his
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examination under Section 164 Cr.P.C. If we peruse his statement under
Section 164 Cr.P.C. although he has stated before the Judicial
Magistrate that he saw one Maruti van was standing on the north-
eastern corner of Chaltapukur, he did not mention that he saw three
convicts were waiting in the said Maruti van. This is obviously an
improvement of the prosecution case by the PW 2 during trial.
21. PW 5 both at the time of recording his statement under Section
164 Cr.P.C. and also at the time of his examination before the Court has
stated that on the relevant date and time he saw the convicts in a Maruti
van at Kharaibazar and one of them had disclosed that they are going to
the house of ‘S’.
22. In Darshan Singh (supra), the Hon’ble Apex Court was pleased to
observe that if the Prosecution Witnesses had failed to mention in their
statement under Section 161 Cr.P.C. about the involvement of an
accused, their subsequent statements before Court during trial regarding
involvement of that particular accused cannot be relied upon.
23. In Vimal Suresh Kamble (supra), the Hon’ble Apex Court has
reiterated the same principle.
24. It appears that during the recording of his statement under Section
164 Cr.P.C. PW 2 did not say that he saw the 3 convicts waiting in the
Maruti van. From the record it transpires that the said convicts were not
placed in TIP during investigation and PW 2 was not asked to identify
those accused as the persons who were allegedly waiting in the Maruti
van. Although there was no TIP, PW 2 identified the convicts on the dock
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after a considerable period of time. Therefore, such evidence of PW 2
cannot be said to be free from blemishes since, it is very much difficult
for any person to identify the accused after a long period of time
particularly when those persons were not known to PW 2. PW 5, has
categorically stated that he saw the three accused coming down from a
steel coloured Maruti van at Kharaibazar. Although the said Maruti van
was seized, the same was not placed for identification with the help of
PW 2 and PW 5.
25. Although, the depositions of PW 2 and PW 6 show that they had
deposed categorically that victim ‘T’ and her friend ‘S’ were last seen
together, no evidence is forthcoming that the victim was seen alongwith
the three convicts at the relevant point of time. It is true that depositions
of some of the witnesses reveal that the alleged place of abduction was a
desolate place and if the abduction of a girl were done therefrom, there
was least chance to witness such abduction. That is a vital point in
favour of the prosecution. But it appears that the prosecution is under a
duty to prove the involvement of the present convicts with the
commission of the crime. It appears that although blood stains and
semen were found in the seats or footsteps of the seized car, the FSL
report remained inconclusive and did not support the prosecution case.
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Circumstantial Evidence:
26. Needless to mention that even if there is no direct evidence, a case
can be proved on the basis of circumstantial evidence. The essential
principle of applying circumstantial evidence is well known. However, for
recapitulation, we must say that the chain of events is to be established
in such a way that there cannot be any doubt that no other person apart
from the accused is responsible for the commission of the offence. In this
case, there are circumstances/events, but we have no doubt that the
chain of events is not complete and sometimes we have found that the
chain is broken and therefore, the conviction cannot be upheld on the
basis of such circumstantial evidence. In the case in hand nobody saw
the victim to get into the steel coloured Maruti van. There is no evidence
that the victim was seen lastly with the appellants. The alleged recovery
of the mobile phone of the victim/her mother from the possession of the
appellant Rafijul was not proved beyond doubt; the said mobile phone
was not placed for identification by the parents of the victim to verify that
the said mobile phone belonged to the victim /her mother and the same
was recovered from the possession of the appellant Rafijul without sim
card. The CFSL report does not prove that the alleged blood stain and
sign of semen belonged to the victim and the appellants respectively.
Therefore, we have no doubt that there are missing links and the
prosecution has failed to prove the essential ingredients of foundational
facts.
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27. In Manoj @ Munna (supra) the Hon’ble Supreme Court has
discussed the landmark judgment of Sharad Birdhichand Sarda
(supra). In Sharad Birdhichand Sarda (supra), the Hon’ble Supreme
Court has been pleased to lay down the basic principle to the effect that
“it is well settled that the prosecution must stand or fall on its own legs
and it cannot derive any strength from the weakness of the defence.” For
the proper understanding of the principle laid down in the aforesaid
case, the paragraphs 153 and 154 of the said decision are quoted
hereinbelow:-
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal
distinction between “may be proved” and “must be or should
be proved” as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations
were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
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should not be explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
28. In the case in hand the said five golden principles as referred to
above are not satisfied.
29. In view of the above we have no hesitation to point out that the
above discrepancies found in the prosecution case were not properly
considered and appreciated by the learned trial judge who relied upon
the extra judicial confession of a co-accused, last seen together theory
and recovery of the alleged mobile phone of the victim from the
possession of the appellant Rafijul without scrutinising that such
available materials are unacceptable in the eye of law as clinching
evidence against the convicts.
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Juvenility of the appellant Ukil Ali:
30. During pendency of this appeal the plea of juvenility of another
appellant Ukil Ali was taken and this Court directed the learned Chief
Judicial Magistrate to make an enquiry regarding the plea of juvenility in
accordance with law. By a report dated 20.12.2025 the learned Chief
Judicial Magistrate has categorically stated that the appellant Ukil Ali
was minor at the time of occurrence as per report of the concerned
school where he studied for sometime. We have considered the said
report and we have found that such enquiry was done on the basis of
cogent materials and we have no different opinion as to the juvenility of
the appellant Ukil Ali at the relevant point of time. In the said report the
mother of the appellant Ukil Ali disclosed that she was unable to produce
relevant documents concerning the age of the appellant Ukil Ali before
the learned Trial Judge and obviously the plea of juvenility was not taken
up by the said appellant properly before the learned Trial Judge.
However, as it appears that the appellant Ukil Ali was a minor at the
time of the alleged commission of offence, the trial and the judgment of
conviction and order of sentence dated 24.01.2024 and 25.01.2024
against the appellant Ukil Ali cannot be sustained under the law since
the trial was conducted by the learned Additional Sessions Judge, 2nd
Court, Tamluk, Paschim Medinipur without having any jurisdiction to try
the juvenile and accordingly the judgment of conviction and order of
sentence dated 24.01.2024 and 25.01.2024 so far as regards the
appellant Ukil Ali is set aside. The appellant Ukil Ali has already been
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released on bail on executing personal bond. His personal bond is
discharged.
31. Accordingly, CRA (DB) 54 of 2024 and CRA (DB) 74 of 2024 are
hereby allowed on contest. The judgment and order of conviction dated
24.01.2024 and 25.01.2024 passed by the learned Additional Sessions
Judge, 2nd Court, Tamluk, Paschim Medinipur in Sessions Trial No.
9(8)16 arising out of the POCSO Case no. 78 of 2014 convicting the
appellant Rafijul @ Tutul and Ukil Ali are hereby set aside. They are
acquitted from the charges. The appellants be released from their
custody immediately, if not already released, unless they are required to
be in custody in connection with any other case.
32. Accordingly, CRA (DB) 54 of 2024 and CRA (DB) 74 of 2024 with
connected applications, if any, are hereby disposed of.
33. Urgent photostat certified copies of this judgment, if applied for,
be supplied to the parties on compliance of all necessary formalities.
I Agree.
(ARIJIT BANERJEE, J.) (APURBA SINHA RAY, J.)
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