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2014 DIGILAW 923 (GAU)

Puran Nath v. State of Assam

2014-10-15

C.R.SARMA, DR.INDIRA SHAH

body2014
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 18.12.2012, passed by the learned Sessions Judge, Udalguri in Sessions Case No. 16(DU)/2012, whereby the learned Sessions Judge convicted the appellant under Section 498A and 304B of the Indian Penal Code (for short "IPC") and sentenced him to suffer imprisonment for life for his conviction under Section 304BIPC and suffer rigorous imprisonment for 3 (three) years for his conviction under Section 498A IPC. The appellant has been sentenced to pay fine of Rs. 25,000.00 (Rupees twenty five thousand) only, in default to suffer imprisonment for another period of 6 (six) months. It has been directed that both the sentences shall run concurrently and that the fine amount, if realized, shall be paid to the informant. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. 2. The facts leading to the impugned conviction and sentence, in brief, may be stated as follows: The appellant, on 25.01.2006, married the informant's (P.W. 1) daughter (hereinafter called the deceased) and out of the said wedlock a child was born to them. The appellant, along with his deceased-wife, used to visit the informant's house and he look money, on various occasions, from his said father-in-law. The deceased also once asked for Rs. 500.00 (Rupees five hundred) only on the plea that her husband was in need of money. But due to inability of her father to give the said amount, she had left her parental house weeping. Once the informant, coming to know about assaulting the deceased, by her husband, visited her husband's house and while counseling them not to quarrel, extended them invitation to visit his house. Accordingly, both of them, on 21.03.2007, visited his house and left on 25.03.2007. However, while leaving her paternal house, the deceased told PW 1 that she would not visit his house again. On 30.03.2007 at 10 p.m. the informant came to know that the deceased was admitted at the Udalguri Civil Hospital in critical condition. On the same night, she was shifted to Gauhati Medical College & Hospital, wherein PW 1 visited her. On 02.04.2007, the deceased told the informant that, on 30.03.2007 at about 7.30 p.m., her husband had set her ablaze. On 04.04.2007, the deceased succumbed to the burn injuries, sustained by her. The informant lodged the FIR (Ext. On the same night, she was shifted to Gauhati Medical College & Hospital, wherein PW 1 visited her. On 02.04.2007, the deceased told the informant that, on 30.03.2007 at about 7.30 p.m., her husband had set her ablaze. On 04.04.2007, the deceased succumbed to the burn injuries, sustained by her. The informant lodged the FIR (Ext. 2) and on receipt of the same, police registered a case and launched investigation into the case. 3. During the investigation, police visited the place of occurrence, prepared inquest report (Ext-1), forwarded the dead body of the deceased for autopsy, collected the post mortem examination report (Ext. No. 8) and recorded the statement of the witnesses. At the close of investigation, the Investigating Officer submitted the charge sheet under Sections 498A and 304B IPC and forwarded the appellant to the court to stand trial. 4. The offence under Section 304B IPC, being exclusively triable by the court of Sessions, the learned Chief Judicial Magistrate, Udalguri committed the case to the court of Sessions for trial. 5. The learned Sessions Judge, considering the materials, on record, framed charges under Section 498A and 304B IPC. The charges were read over and explained to the accused person, to which he pleaded not guilty and claimed to be tried. 6. In order to prove its case, prosecution examined as many as 10 witnesses including the B.D.O. (PW 10), who performed the inquest, the Medical Officer (PW 7), who performed the autopsy and the Investigating Police Officer (PW 9). The accused person was examined under Section 313 Cr. P.C. He denied the allegations, brought against him and examined four defence witnesses as DW 1, DW 2, DW 3 and DW 4. 7. Considering the evidence, on record, the learned Sessions Judge convicted and sentenced the appellant, as indicated above. 8. We have heard Mr. HRA Choudhury, learned senior counsel, assisted by Mr. I.A. Hazarika, learned counsel appearing for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent and perused the materials on record. 9. Mr. Choudhury, learned senior counsel, taking us through the evidence, on record, has submitted that there is no substantive evidence against the appellant and that the prosecution failed to prove the allegations, beyond all reasonable doubt. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent and perused the materials on record. 9. Mr. Choudhury, learned senior counsel, taking us through the evidence, on record, has submitted that there is no substantive evidence against the appellant and that the prosecution failed to prove the allegations, beyond all reasonable doubt. It is also submitted that the deceased, during her visit to her paternal house, did not make any complain regarding torture and demand of dowry and that even on her last visit i.e. on 25.03.2007 also, she did not whisper anything about torture and demand of dowry. Referring to the evidence of her father (PW 1), the learned senior counsel has contended that the deceased had never complained of any quarrel or ill treatment and that if there was any such cruel treatment or demand of dowry then the PW-1, being the father of the deceased, would have certainly disclosed the same. In view of the above, it is submitted that the evidence of PW 1 negates the allegation of torture and demand of dowry. With regard to the death of the deceased, the learned senior counsel has submitted that, except the alleged dying declaration, there is no evidence to show the involvement of the accused. It is submitted that, though the alleged dying declaration was made in her critical condition in the hospital, there is nothing to believe that she was fit to make such statement. It is also submitted that, there being no corroboration with regard to the dying declaration, it is not safe to rely on the same to arrive at the conclusion that the appellant had caused the death of the deceased. In support of his contention the learned Senior Counsel has relied on the following decisions: 1. (2003) 1 SCC 217 (K. Prema S. Rao & Ann vs. Yadla Srinivasa Rao & Ors.) 2. (2004) 4 SCC 470 (State of A.P. vs. Raj Gopal Asawa & Ann), and 3. (2010) 2 SCC 85 (Sharda vs. State of Rajasthan). 10. Refuting the said augment, advanced by the learned senior counsel, Ms. S. Jahan, learned Addl. Public Prosecutor, Assam has submitted that there are sufficient evidence, on record, to show that the appellant had demanded and taken money as dowry and that he had set fire on her, causing her death. (2010) 2 SCC 85 (Sharda vs. State of Rajasthan). 10. Refuting the said augment, advanced by the learned senior counsel, Ms. S. Jahan, learned Addl. Public Prosecutor, Assam has submitted that there are sufficient evidence, on record, to show that the appellant had demanded and taken money as dowry and that he had set fire on her, causing her death. It is also submitted that the evidence of PW 1, before whom the deceased made dying declaration, is sufficient to base the conviction and as such the learned Sessions Judge committed no error by holding the appellant guilty of the offences under Sections 498A and 304B IPC. Therefore, it is submitted, by the learned Addl. Public Prosecutor, that the impugned judgment and order need no interference. 11. In order to appreciate the counter arguments, advanced by the learned counsel, appearing for both the parties, and to examine the correctness of the impugned judgment and order, we feel it appropriate to, briefly, scrutinize the evidence on record. There is no dispute regarding the identity of the deceased as well as the dead body. She was the wife of the appellant and she died in the hospital, while undergoing treatment for the burn injuries, sustained by her, on the night of 30.03.2006. 12. Dr. Pradip Thakuria, Assistant Professor of Forensic Medicine, Gauhati Medical College and Hospital (PW 7) performed the autopsy of the dead body of the deceased, on 05.04.2007, on police requisition and on being identified by the brother of the deceased. He found the following injuries:- " 1. External Appearance:- The body was of average built, female, naked. Rigormortis partially present all over the body and vermilion mark over the forehead was present. Injuries:-Dermoepidermal burn injury present over front of the chest, both sides of cheek, forearm excluding palms excluding palms Epidermal burn injury present over front of the chest, abdomen and thighs both front and beck present. Dermoepidermal deep burn present over back of the chest and buttock. Other organs were all found healthy and congested. Uterus was found small and empty." His opinion was as follows: "In my opinion, death occurred due to shock as a result of ante-mortem burn injuries sustained which were dermoepidermal, deep in type and involved approximately 80% of the total body surface area. Approximate time since death was 18 to 36 hours. Ext. 8 is my P.M. Report, wherein Ext. Uterus was found small and empty." His opinion was as follows: "In my opinion, death occurred due to shock as a result of ante-mortem burn injuries sustained which were dermoepidermal, deep in type and involved approximately 80% of the total body surface area. Approximate time since death was 18 to 36 hours. Ext. 8 is my P.M. Report, wherein Ext. 8(1) is my signature." 13. In his opinion the death occurred due to shock as a result of ante mortem burn injuries, sustained, which were dermoepidermal, deep in type and involved approximately 80% of the total body surface area. Approximate time since death was 18 to 36 hours. The PW 7 has exhibited the post mortem report as Ext. 8 and his signature therein as Ext. 8(1). In his cross examination, made on behalf of accused, the said Medical Officer opined that in such cases the patient would be able to talk till his or her death. From the above evidence of PW 7 it is found that the deceased died due to burn injuries, sustained by her and she was in a position to speak. 14. Now the question to be determined is whether the appellant i.e. the husband of the deceased had set fire on her. 15. The conviction of the appellant is based on the alleged dying declaration. Except the said dying declaration there is no other substantive evidence regarding involvement of the appellant with the death of the deceased. 16. The father of the deceased, who is the vital witness in this case, deposing as PW 1, stated that, since after the marriage of the deceased with the appellant, they used to visit his house and during their last visit they stayed in his house from 21.03.2007 to 25.03.2007. According to this witness, the appellant used to take money from him and the total amount stood at Rs. 25,000/- (Rupees twenty five thousand) only. He stated that, in the first week of March, 2007, during their visit to his house, the deceased asked for an amount of Rs. 500/- (Rupees five hundred) only, on the plea that her husband was in need of money, but due to his failure to give the said amount, she left weeping. After about 10/12 days of the said visit, he (P.W. 1) came to know that the deceased was beaten by her husband. 500/- (Rupees five hundred) only, on the plea that her husband was in need of money, but due to his failure to give the said amount, she left weeping. After about 10/12 days of the said visit, he (P.W. 1) came to know that the deceased was beaten by her husband. Accordingly this witness visited her in her marital house and counseled both of them not to quarrel. They, again, on 21.03.2007, visited his house and left on 25.03.2014. This time, the deceased told her father that she would not come again. As stated by PW 1, on the night of 30.03.2007, at about 10.00 a.m., he came to know that the deceased was admitted in the hospital in serious condition and accordingly he rushed to the hospital and found her, undergoing treatment for burn injuries, in the Gauhati Medical College and Hospital. He stated that, on 02.04.2007, in the hospital the deceased told him that her husband had called her into their living room, wherein someone had put something covering her head and face, for which she could not see anything and that someone had pushed her out after setting ablaze. He further stated that the deceased had told him that her husband had set fire on her. Exhibiting the FIR as ext. No. 1, he stated that he lodged the same, on 03.04.2007 and that the deceased died on 04.04.2007. 17. In his cross examination, this witness stated that, at the time of making the said dying declaration, his sister Ms. Manumati Saikia (PW 2), and the brother of the appellant, Sri Bani Kanta Nath and their sister Ms. Nilima were present in the same room. This statement of the appellant's father (PW 1) indicates that the dying declaration was made in presence of PW 1, PW 2 and the brother and the sister of the appellant. But, Ms. Manumati Saikia, deposing as PW 2 clearly stated that, at the time of making the said dying declaration, there was none except herself and the deceased in the room. This evidence, given by PW 2 has contradicted and negated the evidence given by PW 1. If, PW 1 is believed then PW 2 and the brother and the sister of the appellant were also present in the room, at the time of making the said statement by the deceased. This evidence, given by PW 2 has contradicted and negated the evidence given by PW 1. If, PW 1 is believed then PW 2 and the brother and the sister of the appellant were also present in the room, at the time of making the said statement by the deceased. But, if PW 2 is believed then it must be held that none, except the PW 2 herself, was present. Hence, the evidence given by PW 1 and PW 2 are found to be contradictory on material point. Therefore, we find no corroboration in the evidence of PW-1 and PW-2 regarding the dying declaration. 18. The mother (PW 3) of the deceased, her two brothers (PW 4 and PW 5) and her aunt i.e. father's sister (PW 6) also gave evidence. PW 3 stated that the deceased, on 03.04.2007, told her that the appellant had set fire on her. PW 5 i.e. a brother of the deceased told that her husband had set her ablaze by pouring petrol. PW-5, for the first time disclosed about the use of petrol. PW 4, one of the brothers of the deceased, who also visited her in the hospital, did not state anything regarding dying declaration. 19. Smti. Renu Nath (P.W. 6) stated that she met her niece i.e. the deceased in the hospital and that she had told her that, due to failure to bring money from her father's house, the appellant had assaulted her. This witness clearly stated that the deceased did not tell her as to how she was caught by fire. Here, rises the question, if the deceased had made any dying declaration before PW-1, PW-2, PW-3 and PW-5, who met her in the hospital, as to why she did not disclose the same to PW 4 and PW 6, who were also close relatives being the aunt and the brother respectively. It is surprising to note and hard to believe that neither PW 4 nor PW 6 could to know about such a vital disclosure i.e. dying declaration. Therefore, silence of PW-4 and PW-6 regarding the dying declaration raises doubt about the veracity of the prosecution version. This doubt is more fortified by the silence of PW-1, PW-2 and PW-3 regarding use of Petrol. 20. That apart, as discussed above, the evidence of PW 1 and PW 2 are found to be contradictory. Therefore, silence of PW-4 and PW-6 regarding the dying declaration raises doubt about the veracity of the prosecution version. This doubt is more fortified by the silence of PW-1, PW-2 and PW-3 regarding use of Petrol. 20. That apart, as discussed above, the evidence of PW 1 and PW 2 are found to be contradictory. According to PW 1 at the time of making the dying declaration, PW 2 was also present. But PW 2's evidence rules out the presence of PW 1. Hence, the evidence of PW 1 and PW 2 is found to be contradictory, lacking corroboration and hardly to belie. 21. Admittedly, the dying declaration was not recorded. As stated by the said witnesses the alleged dying declaration was made prior to lodging of the FIR by PW-1, i.e. the father of the deceased. It is hardly believable that the said witnesses, being close relatives (members of the same family) had no occasion to deliberate amongst themselves regarding the cause of death and more particularly about alleged dying declaration which is a vital fact regarding involvement of the appellant with the death of the deceased. Therefore, such vital fact ought to have found place in the FIR, which was the statement made, at the first point of time. But the FIR is silent about such dying declaration. This also raises doubt about the truthfulness of the dying declaration. 22. Regarding evidentiary value of dying declaration, the Supreme Court in the case of Sharda (Supra) observed as follows: "25. Though a dying declaration is entitled and is still recognised by law to be given greater weightage but it has also to be kept in mind that the accused had no chance of cross-examination. Such a right of cross-examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any corroboration." 23. Fact remains that the deceased sustained 80% burn injuries. There is no certificate, issued by the attending medical officer, suggesting that the deceased with the said injuries sustained by her and in that state of her health was in a fit state of mind to make statements. If she was capable of making such statement, we failed to understand as to why the Investigating Officer did not make any attempt to record her statement. Though PW 7, who performed autopsy stated that the patient, with the said injuries, was in position to talk, this part of his evidence is an opinion evidence, inasmuch as had no occasion to observe and examine the deceased, when she was alive, struggling for her life. The attending physician was the best person to say as to whether the deceased, in the prevailing physical condition, was fit to make statement. Therefore, a certificate from the attending medical officer regarding capability of the deceased to speak would have removed any such doubt. 24. In view of the above discussed discrepancies and the principle held in the case of Sharda (Supra), we do not find it safe to accept the evidence regarding dying declaration. 25. PW- 4, Shri Babul Chandra Barman, who worked as a domestic assistant, in the house of the appellant, stated that, hearing noise, he went out to the courtyard and found that the deceased was caught by fire. According to this witness, he alongwith other members of the family doused the fire by pouring water and covering the body of the deceased with gunny bag. He stated that he did not know as to how the deceased was caught by fire. This witness was declared hostile and cross-examined by the prosecution. According to this witness, he alongwith other members of the family doused the fire by pouring water and covering the body of the deceased with gunny bag. He stated that he did not know as to how the deceased was caught by fire. This witness was declared hostile and cross-examined by the prosecution. He, in his such cross-examination, stated that, before the police, he had stated that the appellant had poured something from a polythene bag on the back side of the deceased and set fire on her by lighting a match stick. He did not say about covering the head and face of the deceased as stated in the alleged dying declaration. Hence, this part of admission, made by PW 8 does not support the evidence given by PW 1 regarding the dying declaration. According to the said statement, made by this witness, before the police, he was looking through the window and saw the appellant pouring something on the deceased from her behind and a lighting stick. But according to PW 1, before setting fire, the appellant had covered the head and face of the deceased with something. Hence, even if the statement made by PW 8, before the investigating officer, is accepted then also the evidence of the PW-1 and PW-8 cannot be relied upon for want of corroboration on material point. Of course, PW-8 stated that he made statement before the police, on being threatened by the police and PW 1. That apart, the statement made under Section 161 Cr. P.C. before the investigating officer cannot be accepted as substantial evidence. Hence, the said evidence given by PW 8 cannot lead to the conclusion regarding involvement of the appellant. 26. In view of the above discussion, we are of the considered opinion that the evidence, on record, does not inspire confidence to rely on the dying declaration. In the absence of the said dying declaration, there is no evidence to show that the appellant had set fire on the deceased. 27. 26. In view of the above discussion, we are of the considered opinion that the evidence, on record, does not inspire confidence to rely on the dying declaration. In the absence of the said dying declaration, there is no evidence to show that the appellant had set fire on the deceased. 27. Section 304-B IPC, which is the provision for dowry death, reads as follows: "304-B. Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death. Explanation.-For the purposes of this sub-section, 'dowry' shall have the same meaning as in Section 2of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life". Section 2 of the Dowry Prohibition Act, 1961 defines "dowry" as under: "2 Definition of 'dowry'.- In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation I. For removal of doubts, it is hereby declared that any presents made at the time of marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties. Explanation II. Explanation II. The expression 'valuable security' has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)" Section 113-B of the Evidence Act raises a presumption against the accused and reads:- "113-B. Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Explanation.-For the purpose of this section, 'dowry death' shall have the same meaning as in Section304-B of the Indian Penal Code." 28. As held in the case of K. Prem Rao (Supra), the basic ingredient to constitute an offence under Section 304-B IPC is that there must be evidence to show that "soon before her death, she was subjected to cruelty and harassment in connection with demand of dowry. In the case of Raj Gopal Aswa (Supra), the Supreme Court observed: ".....As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or, or harassment "for, or in connection with, the demand for dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with, any demand for dowry. (4) Such cruelty or harassment was for, or in connection with, any demand for dowry." 29. In order to hold a person guilty of the offence under Section 498-A IPC, the existence of cruelty as defined by Section 498-AIPC must be proved. (3) Such cruelty or harassment was for, or in connection with, any demand for dowry. (4) Such cruelty or harassment was for, or in connection with, any demand for dowry." 29. In order to hold a person guilty of the offence under Section 498-A IPC, the existence of cruelty as defined by Section 498-AIPC must be proved. Section 498-A IPC reads as follows: "498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purposes of this section, 'cruelty' means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (Whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable scrutiny or is on account of failure by her or any person related to her to meet such demand". 30. In the present case, the father of the deceased, who deposed as PW 1 was the best person to say regarding demand of dowry, cruelty and harassment. He did not whisper anything regarding demand of dowry, torture and cruelty. What he stated was that the appellant, who used to visit his house with his wife, had asked for money and the total amount stood at Rs. 25,000/- This witness further stated that the appellant had taken money on various dates. He did not say that the money was demanded or taken by the as dowry. According to PW 1 his daughter asked for Rs. 500/- on the plea that the appellant i.e. his son in law was in need of money. Taking money by a son-in-law from his father-in-law can't be treated as demand of dowry, unless he taking of the money is shown to be in connection with demand of dowry. 31. According to PW 1 his daughter asked for Rs. 500/- on the plea that the appellant i.e. his son in law was in need of money. Taking money by a son-in-law from his father-in-law can't be treated as demand of dowry, unless he taking of the money is shown to be in connection with demand of dowry. 31. Further, PW 1 clearly stated that the deceased had never informed him about any quarrel with her husband on 29.03.2007 also, i.e., on the previous day of the occurrence, when PW 1 had visited her, she did not complain about any torture. 32. PW 2 stated that fifteen days prior to the date of occurrence, when the deceased had visited her parents' house she had told her (PW-2) and PW 3 that the appellant tortured her in connection with his affairs with a widow. PW 3 i.e. the mother of the deceased stated that she was told by the deceased, prior to one month, that she was tortured (beaten) by her husband and that he asked her to take money from her parent's house. 33. PW 4 i.e. the brother of the deceased stated that one week prior to her death, she had asked him for Rs. 2000/- on the plea that, in the event of failure to take money, she would be set ablaze. PW 5 and PW 6, who are the brother and the aunt respectively of the deceased, did not state anything about torture or demand of dowry. In tune with the evidence given PW 5 and PW 6, P.W-1 i.e. the father of the deceased negated the version regarding demand of dowry and torture. 34. From the evidence we do not find it convincing to believe that there was any demand for dowry and that the deceased was treated with cruelty. There is also no evidence to show that, soon before the said incident i.e. burning, the deceased was subjected to any cruelty or harassment. In view of what has been discussed above, we are of the considered opinion that the prosecution failed to prove the charges, brought against the appellant, beyond all reasonable doubt. Hence, the impugned conviction and sentence are not maintainable. Therefore, we find sufficient merit in this appeal. Accordingly, the appeal is allowed and the appellant is acquitted. He be set at liberty forthwith, if not required in any other case. Return the LCR. Hence, the impugned conviction and sentence are not maintainable. Therefore, we find sufficient merit in this appeal. Accordingly, the appeal is allowed and the appellant is acquitted. He be set at liberty forthwith, if not required in any other case. Return the LCR. Appeal allowed.