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2010 DIGILAW 782 (RAJ)

Puran Ram v. State of Rajasthan

2010-04-06

A.M.KAPADIA, GOPAL KRISHAN VYAS

body2010
JUDGMENT Hon'ble VYAS, J.-In this criminal appeal filed under Section 374 CLP.C., the accused appellants are challenging the judgment and sentence dated 17.6.1987 passed by the learned Additional District and Sessions Judge No. 1, Hanumangarh in Sessions Case No. 14/1986, by which the learned trial Court has convicted the accused appellant Om Prakash under Section 302, 148 and 364 IPC and rest of the accused appellants, namely, Puran Ram, Sultan, Jodhram, Raju, Hajari and Kaluram have been convicted for offence under Section 302/149, 148 and 364 IPC. The accused appellant Om Prakash for the offence under Section 302 IPC and rest of the accused appellants for the offence under Section 302/149 IPC were sentenced to undergo imprisonment for life alongwith fine of Rs. 100/- to be paid by each of them and in default of payment of fine, to further undergo simple imprisonment for 15 days. For the offence under Section 364 IPC, all the accused appellants were sentenced to undergo imprisonment for life alongwith fine of Rs. 100/- and in default of payment of fine, to further undergo simple imprisonment for 15 days. Further, for the offence under Section 148 IPC, all the accused appellants were sentenced to undergo rigorous imprisonment for three years alongwith fine of Rs. 100/- and in default of payment of fine, to further undergo simple imprisonment for 15 days. All the sentences were ordered to run concurrently. 2. As per the brief facts of the case, on 14.11.1985, an FIR (Ex. P.1) was registered under Section 302, 364, 147, 148, 149 IPC at Police Station Hanumangarh Town at about 4 O'clock on the basis of the statement of Smt. Lichhma, wife of the deceased Jaisaram, in which it was alleged by the complainant Smt. Lichhma (PW.1) that due to an incident of beating by her husband Jaisaram and one Sahabram 10-12 years back to accused appellants Puran Ram and Sultan, relations of the deceased Jaisaram and the accused appellants Puran Ram, Raju and Sultan were not good and on 13.11.1985 at about 7.00 p.m., her son Fattaram (PW. 2) upon her instruction went to the residence of Hukmaram to bring money back but did not return, then her husband deceased Jaisaram went to call him at about 7.30 p.m. At the time, she heard a loud cry of her husband and rushed to the place from where the noise was coming and saw that near house of one Nayak near the dustbin, the accused persons were beating her husband and all the accused appellants were saying that today they will not spare her husband deceased Jaisaram. As per the allegation of the complainant, the accused appellant Puran Ram and Om Prakash caught hold of the legs of the deceased and dragged his towards the liquor shop, where Rajuram was drinking liquor and all the accused persons started beating her husband deceased Jaisaram. In the statement of the complainant Smt. Lichhma, all the accused appellants gave severe beating to her husband deceased Jaisaram and it resulted into his death. It is specifically stated that Dulichand hit her son Fattaram on his back with lathi and asked him to leave else threatened to beat him also. The complainant party requested the accused persons to spare the life of the deceased, but they did not leave him. In the meantime, her neighbour Bakhtawar (PW. 4) also came there and requested to spare the deceased Jaisaram but due to threatening and fear, the complainant and her son came back to home. At home they received information from maternal uncle Motaram (PW. 3) that after beating, the deceased has been dumped near the school, but due to fear they did not go to the place of occurrence and filed the FIR at about 4.00 p.m. on 14.11.1985 at Police Station Hanumangarh Town. 3. After registration of the FIR, inquest report was prepared and body of the deceased was sent to the hospital for postmortem. The postmortem was conducted on 15.11.1985 at 8.15 a.m. The Investigating Officer commenced investigation and arrested the accused appellants and after usual investigation in accordance with the provisions of Cr.P.C., filed challan against 8 persons in the Court of Additional Chief Judicial Magistrate, Hanumangarh and challan against one Brijlal was filed in the Children's Court as Brijlal was minor. The postmortem was conducted on 15.11.1985 at 8.15 a.m. The Investigating Officer commenced investigation and arrested the accused appellants and after usual investigation in accordance with the provisions of Cr.P.C., filed challan against 8 persons in the Court of Additional Chief Judicial Magistrate, Hanumangarh and challan against one Brijlal was filed in the Children's Court as Brijlal was minor. The case of the accused Dulichand was also transferred to the Juvenile Court vide order dated 5.2.1986 passed by the Additional Chief Judicial Magistrate, Hanumangarh because Dulichand was also minor on the date of incident and case of the rest of the accused appellants was committed to the Court of Additional District and Sessions Judge No.1, Hanumangarh. 4. The learned trial Court after framing the charge under Section 302/149, 148 and 364 IPC, proceeded to conduct the trial. Later on vide order dated 30.4.1986, charge was amended for the accused appellant Om Prakash and instead of charge under Section 302 read with Section 149 IPC, charge under Section 302, 148, 364 IPC was framed and charge against all other accused appellants under Section 302/149, 148, 364 IPC were kept intact. 5. After framing charge, the learned trial Court granted an opportunity to the prosecution to produce its evidence. In this way, the prosecution produced as many as 13 witnesses, namely, PW.1 Lichhma, PW.2 Fattaram, PW. 3 Motaram, PW. 4 Bakhtawar, PW. 5 Dhannaram, PW. 6 Chhotu Singh, PW. 7 Shravan Kumar, PW. 8 Mohan Singh (Dy. S.P.), PW. 9 Balwant Rai, PW. 10 Parmeshwari, PW. 11 Netram, PW. 12 Dr. Narendra Godara and PW. 13 Kesar Singh and 32 documents were exhibited from the prosecution side. After recording evidence of the prosecution statements of all the accused appellants were recorded under Section 313 Cr.P.C. Thereafter opportunity to lead evidence in defence was also given to the accused appellants, however, no oral evidence is produced from their side and 3 documents were exhibited in defence. 6. The learned trial Court after recording entire evidence, finally heard the matter and vide the impugned judgment dated 17.6.1987, convicted the accused appellant Om Prakash for offence under Section 302, 148, 364 IPC and all the other accused appellants for committing offence under Section 302/149, 148, 364 IPC and sentenced them as mentioned in initial para of this judgment. 7. The learned trial Court after recording entire evidence, finally heard the matter and vide the impugned judgment dated 17.6.1987, convicted the accused appellant Om Prakash for offence under Section 302, 148, 364 IPC and all the other accused appellants for committing offence under Section 302/149, 148, 364 IPC and sentenced them as mentioned in initial para of this judgment. 7. During the pendency of this appeal, accused appellant Raju died, therefore, his appeal was ordered to be abated on 8.3.2000. Now by this judgment, we are adjudicating the case of the remaining accused appellants, namely, Puran Ram, Sultan, Jodhram, Om Prakash, Hajari, Kaluram in this appeal. 8. Mr. Digvijay Singh Jasol, learned counsel appearing on behalf of the appellants, while challenging the validity of the judgment dated 17.6.1987 vehemently argued that the judgment rendered by the trial Court is not based upon proper application of mind so also without considering the evidence on the record in right perspective, therefore, the finding recorded in the judgment impugned deserves to be quashed. 9. Learned counsel appearing on behalf of the appellants submit that out of 7 eye-witnesses, 4 independent eye-witnesses, namely, PW.3 Motaram, PW. 4 Bakhtawar, PW. 5 Dhannaram and PW. 10 Parmeshwari turned hostile and did not support the prosecution story before the court. The remaining eye-witnesses PW. 1 Smt. Lichhma is wife of the deceased, PW. 2 Fattaram is son of the deceased and PW.7 Shravan Kumar is closed relative and these witnesses supported the prosecution story before the court to prove the charge levelled against the accused appellants. Upon perusal of statements of these 3 interested witnesses, it will reveal that there are major contradictions in their statements, therefore, the learned trial Court has erroneously relied upon their testimony and illegally convicted the accused appellants. 10. In the case of accused appellant Om Prakash, it is vehemently argued that as per the statement of PW.7 Shravan Kumar, there is specific allegation in his statement that accused appellant Om Prakash has inflicted injury to the deceased by Gandasi but in the cross-examination, it is stated that the said injury was caused upon the head of the deceased from the sharp side of the Gandasi. If this statement is testified with the postmortem report and the statement of PW.12 Dr. If this statement is testified with the postmortem report and the statement of PW.12 Dr. Narendra Godara, then it will emerge that the statement of this witness is not corroborated by Medical evidence because as per the injury report and statement of Dr. Narendra Godara (PW. 12), the grievous injury which is found upon the head of the deceased, was lacerated wound, meaning thereby the testimony of PW.7 Shravan Kumar with regard to specific injury upon the head of the deceased from the sharp side of Gandasi cannot be treated to be proved because as per the statement of Dr. Narendra Godara (PW. 12), no incised wound found upon any part of the body of the deceased, therefore, it is obvious that the testimony of PW.7 Shravan Kumar has wrongly been relied upon by the trial Court as eye-witness for the purpose of convicting the accused appellant Om Prakash for the offence under Section 302 IPC simplicitor. 11. Learned counsel for the appellants further invited our attention towards the statement of PW.2 Fattaram, son of the deceased Jaisaram who has stated that the accused appellant Om Prakash inflicted injury by lathi upon the head of his father and his father fell down, meaning thereby the statement of PW.2 Fattaram with regard to nature of injury upon the head of the deceased is totally contrary to the statement of PW. 7 Shravan Kumar who has deposed in his statement that head injury was caused by Gandasi, that too from sharp side of Gandasi, therefore, on the basis of major contradiction in the statements of these eye-witnesses, it cannot be presumed that the accused appellant Om Prakash has committed offence under Section 302 IPC. 12. Learned counsel for the appellants while inviting our attention towards the statement of PW.1 Smt. Lichhma, the author of the FIR, submitted that according to her statement, first of all she sent her son Fattaram (PW.2) to the house of Hukmaram for taking money back, when he did not come back, then she sent her husband deceased Jaisaram to call him and after some time heard noise of some quarrel in the backside of her house near the house of Nayak community and she rushed to the place of occurrence where she saw that the accused appellants were beating her husband Jaisaram. As per her statement, all the accused were having lathis in their hands and they were saying that they will not leave Jaisaram today. At that time, Fatta, Dhanna and Om Prakash came there. She requested the accused appellants not be beat her husband and leave him, but they took her husband Jaisaram with them and threw him at the liquor shop of the accused Raju, where Raju was sitting and consuming liquor. After reaching at the shop of Raju, all the accused appellants including Raju assaulted the deceased. Learned counsel for the appellant while inviting our attention towards the statement of PW.1 Lichhma submitted that although as per her testimony, there was severe beating of her husband by lathis by all the accused appellants, but this fact is not corroborated by the medical evidence because as per the medical evidence, there was only one lacerated wound upon the head of the deceased and rest of the injuries were simple bruise and abrasions, meaning thereby upon the assessment of the statement of PW.1 Smt. Lichhma with the postmortem report and the statement of PW.12 Dr. Narendra Godara, it emerges that those injuries could not be inflicted by Gandasi and lathis because as per the statement of PW.12 Dr. Narendra Godara, except injury No.1, all other injuries can be caused if a person is dragged from one place to another place by force, meaning thereby there is no complete corroboration of the testimony of PW.1 Smt. Lichhma, therefore, it is obvious from the assessment of the statements of PW.1 Smt. Lichhma, PW.2 Fattaram and PW. 7 Shravan Kumar that there are major contradictions in the statements of these 3 eye-witnesses and the medical evidence is also not supporting the allegation of inflicting repeated blows by 9 accused persons with lathis, therefore, the learned trial Court has committed serious error while convicting the accused appellant Om Prakash for the offence under Section 302 IPC and he is entitled to be acquitted from the charge under Section 302 IPC. 13. 13. With regard to conviction of the other accused appellants, namely, Puran Ram, Sultan, Jodhram, Hajari and Kaluram under Section 302 read with Section 119 IPC, it is argued that as per the prosecution case, head injury was not caused by any other accused appellant and specific allegation has been levelled only against accused appellant Om Prakash and upon perusal of the injuries mentioned in the postmortem report, there was only one lacerated wound upon the head of the deceased, all other injuries are abrasions and bruise and who has caused the head injury is not proved, therefore, it can be said that the accused appellants have been convicted for the offence under Section 302 or 302 read with Section 149 IPC on the basis of false statement made by the eye-witnesses because lacerated wound cannot be caused upon alleged injury inflicted by sharp edged weapon, but here in this case, all the injuries except injury No. 1 are abrasions and bruise and this fact alone is sufficient to arrive at the finding that there was no intention or common object of all the accused appellants to kill and deceased Jaisaram and when intention and motive are absent, then it is obvious that the learned trial Court has committed serious error while convicting the accused appellants for offence under Section 302 or 302/149 IPC. It is submitted that from any angle of assessment of the statements of PW.1 Smt. Lichhma, PW.2 Fattaram and PW.7 Shravan Kumar and testimony of PW.12 Dr. Narendra Godara, it cannot be said that the accused appellants are liable for committing offence under Section 302 or 302 read with Section 149 IPC because the evidence for intention, motive or common object are totally at sent. 14. Narendra Godara, it cannot be said that the accused appellants are liable for committing offence under Section 302 or 302 read with Section 149 IPC because the evidence for intention, motive or common object are totally at sent. 14. Learned counsel for the appellants submitted that all the accused appellants have been convicted for offence kidnapping under Section 364 IPC also, but upon assessment of the testimony of all the prosecution witnesses, no case under Section 364 IPC is made out because upon facts stated by the eye-witnesses, the main ingredients of offence of "kidnapping" are absent because as per the allegation of the prosecution, deceased Jaisaram was taken from one place to another place in the presence of the eye-witnesses and he was given beating at the liquor shop of Raju, therefore, the judgment rendered by the learned trial Court convicting all the accused appellants for committing offence under Section 364 IPC is totally baseless and has no foundation to stand, therefore, the judgment impugned deserves to be quashed. 15. Likewise, it is argued by the learned counsel for the appellants that no offence under Section 148 IPC is made out against the accused appellants because even according to the prosecution case, accused am Prakash was armed with lathi, as such conviction under Section 148 IPC cannot be sustained. 16. Lastly, learned counsel for the appellants argued that even upon taking the prosecution case on its face value, the offence does not travel beyond Section 325 read with Section 149 IPC because except injury No.1, all other injuries are on non-vital parts of the body of the deceased and for injury No.1, the prosecution has not proved by any trustworthy evidence that who has caused the said injury. 17. Learned counsel for the appellants submitted that the accused am Prakash remained in jail from 23.11.1985 and was released on bail by this court vide order dated 27.7.1990. 17. Learned counsel for the appellants submitted that the accused am Prakash remained in jail from 23.11.1985 and was released on bail by this court vide order dated 27.7.1990. Likewise, other accused appellant Jodhram was arrested on 23.11.1985, Sultan was arrested on 27.11.1985, Puran Ram was arrested on 23.11.1985, Kaluram was arrested on 23.11.1985 and Hajari was arrested on 27.11.1985 and all of them were granted bail by this Court on 9.2.1988, meaning thereby the accused appellant am Prakash remained in custody for 4 years and nearby 7 months and other accused appellants remained in custody for 2 years and 3 months approximately, therefore, while acquitting the accused appellants from the offence under Section 302 or 302/149 IPC, 148, 364 IPC, their conviction may be altered to offence under Section 325 read with Section 149 IPC and they may be released on the basis of sentence already undergone by them in the custody. 18. Per contra, learned Public Prosecutor vehemently opposed the prayer so made by the learned counsel for the appellants and submitted that by leading cogent and trustworthy evidence, the prosecution has proved its case beyond reasonable doubt for commission of offence under Section 302 IPC simplicitor by accused appellant am Prakash and offence under Section 302/149 IPC by other accused appellants, so also for offence under Section 148 and 364 IPC by all the accused appellants, therefore, the judgment rendered by the learned trial court does not require any interference. 19. Learned Public Prosecutor pointed out that there were 19 injuries upon the body of the deceased and as per the testimony of Dr. Narendra Godara (PW.12), the deceased Jaisaram died due to head injury which is said to be inflicted by the accused appellant Om Prakash, therefore, the learned trial Court has rightly convicted the accused appellant am Prakash for offence under Section 302 IPC. Likewise all the other accused appellants were having common intention due to previous enmity, therefore, they have also been rightly convicted for the offence under Section 302 read with Section 149 IPC, therefore, this appeal deserves to be dismissed. 20. We have considered the rival submissions made by both the parties. In this case, first of all we have perused the postmortem report in which 19 injuries are mentioned. 20. We have considered the rival submissions made by both the parties. In this case, first of all we have perused the postmortem report in which 19 injuries are mentioned. Although the number of injuries are 19, but except the injury No.1, all other injuries are abrasions and bruise, but as per the allegation made by the eye-witnesses PW.1 Lichhma, wife of the deceased and PW.2 Fattaram, son of the deceased and P.W. 7 Shravan Kumar, there was severe beating of the deceased by lathis, so also by Gadasi by the accused appellants. In our opinion, if such type of allegation is accepted, then obviously the allegation of inflicting number of injuries is required to be corroborated by the medical evidence but here in this case, except injury No. 1, which was caused upon the head of the deceased, all the injuries are abrasions and bruise, therefore, it can be gathered from this fact alone that there was no intention or common object of all the accused appellants to commit the murder of the deceased Jaisaram. We have also ascertained from the statements of the Jaisaram. We have also ascertained from the statements of the prosecution witnesses as to what was the enmity between the parties but we have not found any lota of evidence except the allegation in the FIR that 10 to 12 years back there was beating by the deceased Jaisaram and one Sahabram of the accused appellant Puran Ram. In our opinion, this fact cannot be termed as enmity between the parties, therefore, at the most, it can be said that accused appellants wanted to give lesson to the deceased, therefore, the deceased Jaisaram was given beating by the accused appellants, that too without any intention to kill him. With regard to the allegation of inflicting head injury by the accused appellant Om Prakash is concerned, for which charge was amended and charge for offence under Section 302 simplicitor was framed, we have assessed the evidence on the record. As per statement of the prosecution witness Fattaram (PW.2), before reaching of Shravan Kumar (PW. With regard to the allegation of inflicting head injury by the accused appellant Om Prakash is concerned, for which charge was amended and charge for offence under Section 302 simplicitor was framed, we have assessed the evidence on the record. As per statement of the prosecution witness Fattaram (PW.2), before reaching of Shravan Kumar (PW. 7), the head injury was inflicted by the accused Om Prakash by lathi and due to that injury the deceased Jaisaram fell down, but as per the statement of Shravan Kumar (PW.7), after he reached at the place of occurrence, one head injury was inflicted by the accused appellant Om Prakash upon the head of the deceased Jaisaram by Gandasi and in the cross-examination, he has specifically stated that the said injury was caused from the sharp side of the weapon Gandasi. In our opinion, the statement of PW.2 Fattaram with regard to inflicting head injury by lathi and the statement of PW.7 Shravan Kumar with regard to inflicting head injury from the sharp side of Gandasi, create serious doubt with regard to the fact that who has caused head injury. When the specific injury found upon the head of the deceased has not been proved by the prosecution by leading cogent and trustworthy evidence, then obviously it is not safe to convict the accused appellant Om Prakash for committing offence under Section 302 IPC simplicitor and at the most the role of the accused appellant Om Prakash can be treated at per with all the other accused appellants, but the accused appellant Om Prakash has not been charged for committing offence under Section 302 read with Section 149. IPC, therefore, he cannot be convicted for committing offence under Section 302 read with Section 149 IPC. 21. Upon the above discussion, we are of the opinion that the prosecution has not proved its case with regard commission of offence by the accused appellants under Section 302 or 302 read with Section 149 IPC because there is no evidence on the record to prove the intention or motive behind the incident, therefore, all the accused appellants deserve to be acquitted from the charge for offence under Section 302 or 302 read with Section 149 IPC. 22. 22. With regard to commission of offence under Section 364 IPC is concerned, as we have discussed above and assessed the reliability of the statements of the eye-witnesses from which it emerges that out of 7 eyewitnesses, 4 independent eye-witnesses, namely, PW.3 Motaram, PW. 4 Bakhtawar, PW. 5 Dhannaram and PW. 10 Parmeshwari, produced as eyewitnesses by the prosecution were declared hostile by the trial Court and did not support the prosecution story and upon assessment of the testimony of eye-witnesses PW.1 Smt. Lichhma, PW. 2 Fattaram and PW.7 Shravan Kumar, it is revealed that there is no evidence to establish the fact that ingredients of offence under Section 364 IPC are present. Admittedly, as per the testimony of the eye-witnesses, the deceased was dragged from one place to another and the same cannot be said to be an offence of abduction in real sense, therefore, in our opinion, upon admitted facts no offence under Section 364 IPC is made out, hence, the conviction and sentence awarded by the trial Court for commission of offence under Section 364 IPC is hereby quashed and set aside. 23. Upon assessment of the evidence on record, it emerges that as per the prosecution evidence, accused appellant Om Prakash was armed with lathi is such offence under Section 148 IPC cannot be said to be made out because except one injury upon the head of the deceased, all the injuries were abrasions and bruise, meaning thereby if the evidence of the prosecution is accepted that the accused appellants were armed with weapons, then the injuries upon the body of the deceased were required to be found, but obviously the injuries which were found upon the body of the deceased cannot be said to have been caused by any weapon and this fact is corroborated by Dr. Narendra Godara (PW. 12) who has deposed in his statement that the injury No. 2 to 19 can be caused if any person is dragged from one place to another. In this view of the matter, the learned trial Court has committed a serious error while convicting the accused appellants for the offence under Section 148 IPC, therefore, the conviction and sentence awarded by the learned trial Court for the offence under Section 148 IPC deserves to be quashed. 24. In this view of the matter, the learned trial Court has committed a serious error while convicting the accused appellants for the offence under Section 148 IPC, therefore, the conviction and sentence awarded by the learned trial Court for the offence under Section 148 IPC deserves to be quashed. 24. On the basis of the above discussion, now the question arises that if offence under Section 302 or302 read with Section 149 IPC and offence under Section 148 and 364 IPC is not made out, then what offence is made out against the accused appellants on the basis of the testimony of PW.1 Lichhma, PW. Fattaram and PW. 7 Shravan Kumar. In our opinion, the statements of these witnesses cannot be thrown straightway because there is some substance therein because admittedly the occurrence has taken place in which the deceased Jaisaram died. Upon assessment of the evidentiary value of the prosecution evidence, we are of the opinion that the occurrence took place for the reason that the accused appellants wanted to give lesson to the deceased Jaisaram and the so-called injuries were caused only to give lesson to him and not to kill him because it is beyond the imagination that if 9 persons came on the spot and participated with weapons and they inflicted only simple injuries on the body of the deceased. In the present case, as per the medical evidence, only one grievous injury, which was lacerated wound, was found upon the body of the deceased Jaisaram upon his head and rest of the injuries were abrasions and bruise, meaning thereby it appears from the above fact that there was no intention to kill Jaisaram and the occurrence took place only to give lesson to Jaisaram, but he died de to injury No.1 which is lacerated wound and that too is not proved specifically by the prosecution that who has caused the said injury. 25. In the statements of PW.2 Fattaram and PW.7 Shravan Kumar there is volumes of contradictions with regard to injury No. 1 which is found upon the head of the deceased, therefore, in our opinion, no offence under Section 302 or 302/149 IPC, 148 and 364 is made out. At the most, offence under Section 325 IPC can be said to be made out against the accused appellant Om Prakash, against whom allegation is made by PW. At the most, offence under Section 325 IPC can be said to be made out against the accused appellant Om Prakash, against whom allegation is made by PW. 2 Fattaram for inflicting head injury and no repeated blow is said to be made by him. So also all the other accused appellants, the case cannot travel beyond Section 325 read with Section 149 IPC. 26. In view of the discussion made above, this appeal deserves to be allowed partly. Accordingly, this appeal is partly allowed in the following terms. 27. The conviction of the accused appellant Om Prakash under Section 302, 148, 364 IPC is hereby set aside ad altered to Section 325 IPC. The accused appellant Om Prakash has remained in custody for 4 years and 7 months, therefore, he is hereby sentenced to imprisonment for the period already undergone by him with a fine of Rs. 500/- which is to be deposited by him within a period of two months from the date of receipt of certified copy of this order. Conviction of all the other accused appellants, namely, Puran Ram, Sultan, Jodhram, Hajari and Kaluram, under Section 302/149, 148, 364 IPC is hereby set aside and altered to Section 325/149 IPC. These accused appellants have remained in custody for 2 years and 3 months approximately, therefore, each of them is hereby sentenced to imprisonment for the period already undergone by them, so also each of them shall deposit a fine of Rs. 500/- within a period of two months from the date of receipt of certified copy of this order. The accused appellants are on bail, therefore, their bail bonds are hereby cancelled and sureties are hereby discharged.