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2016 DIGILAW 3404 (ALL)

ASLAM v. STATE OF U. P.

2016-10-05

ARVIND KUMAR TRIPATHI, MUKHTAR AHMAD

body2016
JUDGMENT : (Delivered by Hon'ble Mukhtar Ahmad, J.) 1. The present appeal has been preferred against the judgment and order of conviction and sentence dated 12.7.1984 passed by Sessions Judge, Aligarh in Sessions Trial No. 170 of 1983 (State of U.P. vs. Farid and 6 others) under Section 147, 148, 323, 307, 302 I.P.C. However appellant nos. 1, 2, 3, 5 and 7 namely Farid, Aslam Salli, Islam and Abdul Shakoor have expired during the pendency of this appeal hence the appeal in respect of them stands abated. Now this appeal survives on behalf of appellants no.4 and 6 namely Jamil and Munna respectively. Appellant Jamil has been convicted and awarded sentence to undergo life imprisonment for the the offence punishable under Section 302 read with Section 149 I.P.C. 3 years rigorous imprisonment for the offence punishable under Section 307 read with Section 149 I.P.C., two years rigorous imprisonment for the offence punishable under Section 452 I.P.C. and one year rigorous imprisonment for the offence punishable under Section 148 I.P.C. Appellant Munna has also been convicted and awarded sentence to under go life imprisonment for the offence punishable under Section 302 read with Section 149 I.P.C., for the offence punishable under Section 307 read with Section 149 I.P.C. is sentenced to undergo rigorous imprisonment for three years. Further convicted for the offence punishable under Section 147 I.P.C. is sentenced to undergo rigorous imprisonment for one year. 2. The prosecution case in essence is that informant Shamim d/o Bundu r/o Mohalla Nichan at Atroli was married to Anwar @ Inna r/o Delhi darwaza, Aligarh and she was staying in her parental house. On 14.9.1982 her dewar Aslam s/o Jhallar along with Rais s/o Rashid came to her parental house to bring her with them. On 15.9.1982 first informant, her younger sisters Golo and Hasina, daughter Reshma were present in the house. At about 7 a.m. Aslam s/o Nijam having Bugda, Salli s/o Uddi having knife and lathi, Farid s/o Shakoor and Jamil s/o Hamidulla both having knives entered into the house. All the accused dragged Aslam and took him out of the door in the lane. Accused Salli and Jamil caught hold of the hands of Aslam and accused Aslam s/o Nijam inflicted with Bugda and Farid with knife with a view to kill him. All the accused dragged Aslam and took him out of the door in the lane. Accused Salli and Jamil caught hold of the hands of Aslam and accused Aslam s/o Nijam inflicted with Bugda and Farid with knife with a view to kill him. It was also alleged that seeing this Raees came out on the door of the house, then accused Abdul Shakoor, Islam and Munna, who were standing infront of the door having knife and Bugda in their hands, caught hold Rais. Accused Munna gave him a Bugda blow while remaining inflicted knife blows on him with a view to kill him. It was further asserted that Aslam and Raees sustaining serious injuries fell down on the ground. On hue and cry one Naseeran widow of Bashir came there to protect them but Salli assaulted a lathi blow on her causing fracture in her forearm. Thereafter witnesses Fahim Khan s/o Kayyum Khan, Mashkoor s/o Shakoor Mulla, Shabbir s/o Saddik, Babu s/o Abdul Jamil, Munna Mali s/o Lakshman and Ramu and so other persons came on the spot who save them and saw the incident. It was also said that on 14 August too appellant Aslam had stabbed her brother Anwar and a report of this effect was made in the concerning police station and there was old enmity with accused persons. Injured Aslam, Rais and Nasiran were taken to the police station, where First Information Report was lodged on the oral assertion of Smt. Shamim PW.3 and Chik FIR was prepared by Head Constable Badri Prasad Pw.6 and entry in the concerning G.D was also made. Thereafter injured were sent for medical examination to Primary Health Centre, Atrauli through constable Ranvir Singh where Aslam s/o Jhallar was declared as brought dead, thereafter section 302 I.P.C. was added. 3. Dr. S.C. Singhal (PW-10), Medical Officer, Primary Health Centre, Atrauli examined the injuries of Rais (PW-1) at 8.47 am on 15.9.1982. He found following injury on his person:- "Incised wound 5.5 cm. x 2 cm. x not proved over middle of left side back 7.5 cm. below the lower end of left shoulder blade, clean sharp cutting margins, bleeding present. Advised x-ray of chest" According to him the injury was caused by some sharp edged weapon and was grievous in nature and was fresh at the time of examination. He also recorded the dying declaration of injured Rais marked Ex. below the lower end of left shoulder blade, clean sharp cutting margins, bleeding present. Advised x-ray of chest" According to him the injury was caused by some sharp edged weapon and was grievous in nature and was fresh at the time of examination. He also recorded the dying declaration of injured Rais marked Ex. Ka-27-28 in the presence of the Tehsildar, Atrauli on same day i.e. 15-9-1982 at 8.30 am. Thereafter second dying declaration was recorded at 8.40 am. On the same day Dr. S.C. Singhal also examined the injuries of Nasiran and found following injuries on her person: 1. Lacerated wound 0.4 cm x 0.1 cm over outer aspect of right upper arm 12.5 cm above the right elbow joint, margins irregular, bleeding present. 2. Traumatic swelling in the area of 11 cm x 11 cm over front and outer aspect of right upper arm just above the right elbow joint- advised x-ray. According to him the injuries were caused by some blunt weapon and were fresh and that injury no.1 was simple and injury no.2 was kept under observation and x-ray was advised. 4. The Investigation was taken over by Prem Pal Singh (PW-8). He after receiving the information about death of Aslam reached to Primary Health Centre, Atroli where he prepared the inquest report and other papers such as photo nash, chalan nash and letters to C.M.O respectively and sealed the dead body and entrusted it to constable Rajaram and Jagdish Singh for post mortem examination. He perused the injury reports, reached on the spot and made a local inspection and prepared a site plan (Ex. Ka-13). He also took in possession the blood stained bricks and stones and sample of ordinary bricks and stones from the spot. He recorded the statements of Smt. Shamim and Shabbir and searched the accused persons but the accused persons could not be found. Thereafter statements of witnesses were recorded. 5. Dr. Raj Kumar P.W.4, Medical Officer, Malkhan Singh Hospital, Aligarh conducted the post mortem examination on the body of Aslam on 16.9.1982 at 12.15 noon and prepared the post mortem report. According to him the age of the deceased was about 22 years and the duration of his death at the time of post mortem was one day. 5. Dr. Raj Kumar P.W.4, Medical Officer, Malkhan Singh Hospital, Aligarh conducted the post mortem examination on the body of Aslam on 16.9.1982 at 12.15 noon and prepared the post mortem report. According to him the age of the deceased was about 22 years and the duration of his death at the time of post mortem was one day. The body of the deceased was average built and that rigor mortis was present in the lower part of the body and had passed off from the upper part of the body. According to him following ante mortem injuries were found on the dead body of Aslam: "Incised wound size 3.3/4 x 1.3/4 x bone deep on the front of right shoulder extending and involving the right axilla and cutting the major blood vessels and nerve corps." On internal examination he found watery fluid in the stomach and faecal matter and gases in the small and large intestines. Gall bladder was found full. In his opinion Aslam died as a result of shock and hemorrhage due to anti mortem injuries. 6. Prem Pal Singh (PW-8) the Investigating Officer took possession the blood stained cloths of Rais and prepared memo (Ex. Ka 22), which were sent to chemical examination lab Agra. The chemical examination report and report of Serologist marked (Ex.ka-23-24) are on the record. After concluding the investigation the charge sheet was submitted against the accused persons. The case was committed by concerning magistrate to the court of session, where charges were framed against accused persons. All of them denied the charges and claimed to be tried. 7. The prosecution in order to prove its case has examined 11 witnesses. Pw.1 Rais is the witness of fact, who was injured in the same incident. Pw.2 Shabbir has also been produced as eye witness who had watched the incident. Pw.3 Smt. Shamim is the first informant of the case, who is also examined as eye witness Pw.4 Dr.Raj Kumar is the witness who conducted Postmortem on the dead body of the deceased Aslam. Pw.5 Dr. H.L Bansal is produced to prove the injury reports as were prepared by him after examining the injured persons. Pw.6 Head constable Badri Prasad prepared Chick FIR and made entry in G.D. Pw.7 is a witness of fact who has given eye witness account of the incident. Pw.8 S.I.Prem Pal Singh is the investigating officer. Pw.5 Dr. H.L Bansal is produced to prove the injury reports as were prepared by him after examining the injured persons. Pw.6 Head constable Badri Prasad prepared Chick FIR and made entry in G.D. Pw.7 is a witness of fact who has given eye witness account of the incident. Pw.8 S.I.Prem Pal Singh is the investigating officer. Pw.9 Constable is the witness who brought the articles for chemical examination but the lab did not receive it and returned to bring in separate bundles. Thereafter he re deposited in the police station. Pw.10 Dr. S.C.Singhal had examined injured Rais and Basheeran and has proved the injuries reports. PW.11 Constable Jagdish Singh who had taken the sealed articles and deposited in Chemical Examination laboratory Agra. 8. After concluding the prosecution evidence the statement of accused persons under Section 313 Cr.P.C were recorded. They admitted the proceedings under Section 107 Cr.P.C which were going on between accused Farid and Abdul Shakoor as on one hand and brothers of the Shamim on the other hand. However they denied from the crime and pleaded their ignorance. They also deposed that they were falsely implicated due to enmity. However no evidence was adduced on behalf of defence. 9. Learned Sessions Judge on the basis of evidence on record found the prosecution case proved and recorded the conviction and awarded sentences as stated above, which is now assailed in this appeal. 10. We have heard Mr. Zafar Nair learned senior advocate on behalf of appellant no.6 Munna and Sri Ishwar Chand Pandey Advocate, learned Amicus Curiae for appellant no.4 Jamil, learned A.G.A. for the state. 11. On behalf of appellants the judgment impugned has been assailed on various grounds. It is submitted that there is no evidence worthy of credence to establish the prosecution case and impugned judgment lies more on surmises than on facts proved beyond reasonable doubt. Initially it has been submitted that three dying declarations of injured Raees were recorded but all these are self contradictory and even not corroborated by other ocular evidence. It has vehemently argued that there was nothing to establish that there was any unlawful assembly and appellants being members of that assembly committed the offence in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It has vehemently argued that there was nothing to establish that there was any unlawful assembly and appellants being members of that assembly committed the offence in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. There is also no evidence showing any participation of appellants in the crime but learned Trial Court has convicted them assuming it to be a case of common object even as per facts and circumstances at the most accused persons would be liable only for what they did. In the continuation it is further submitted that before convicting the accused persons with the aid of Section 149 I.P.C. the Court must give clear finding based on evidence regarding nature of the common object and that the object was unlawful. Inviting our attention towards the judgment impugned, it is also contended that mere presence of empty handed accused persons would not be sufficient to establish that they were members of any unlawful assembly or acted in prosecution of the common object of that assembly. 12. It is next contended on behalf of the appellants that the witness account regarding description of the incident is also suspected as some of the statements made by them had not been disclosed to the Investigating Officer as appears from the evidence of Investigating Officer. Further the evidence of prosecution witnesses has severe discrepancies and the role and participation of appellants has not been established, so their testimony do not inspire confidence and entire prosecution story becomes doubtful. 13. Per contra learned A.G.A. has opposed these arguments and supported the judgment impugned. It has also been argued that entire prosecution story is that all the accused persons committed the murder of deceased Aslam and belabored Raees in prosecution of the common object of the unlawful assembly of the accused persons and evidence adduced on behalf of prosecution is sufficient to establish that all the accused persons in prosecution of common object committed the crime. He also submits that prosecution case is consistent with the fact as disclosed in the First Information Report. Minor contradictions in the testimony of the witnesses are bound to occur which also shows that the witnesses are not tutored and they have come to the Court for disclosing the facts of the incident in their own way. He also submits that prosecution case is consistent with the fact as disclosed in the First Information Report. Minor contradictions in the testimony of the witnesses are bound to occur which also shows that the witnesses are not tutored and they have come to the Court for disclosing the facts of the incident in their own way. Minor discrepancies not touching the core of the case, cannot be the ground for rejection of evidence in entirety. 14. Before appreciating the arguments of rival parties it would be constructive to consider evidentiary value and truthfulness of dying declarations made by Raees, who survives. It is not disputed that there are three dying declarations of injured Raees. First was recorded on 15-9-1982 at 8.30 a.m by Tahsildar. It was in the form of questionnaire. It has been stated there in that injuries were caused to him by accused Aslam by stabbing on the exhortation of Shakoor. He also stated that there was none other except accused Aslam sustaining injuries to him. He further stated that earlier accused Aslam and Salli had threatened him to kill. Second one was recorded on the request of Raees as additional dying declaration in continuity of first one by same Tahsildar on the same day i.e. 15-9-1982. Actually it is in respect of deceased Aslam. It is stated there in that his other companion Aslam s/o Jhallar mohalla Delhi Gate, Aligarh was also coming with him. He was also assaulted by Aslam s/o Nijam and Salli s/o not known residents of mohalla Nichan Atrauli. He also depicted that Farid s/o Shakoor was also having knife in his hands but he did not cause any injury. Third One was also recorded on 15-9-1982 at 5.15 Pm by Sub Divisional Magistrate. It was stated by Raees that Shakoor had caught hold him and accused Aslam stabbed him. He also said that accused Salli and Aslam had committed murder of his cousin (mausi's son) some days before and they had also threatened him to kill. He further stated that Faridul had also beaten him. 15. It is a clear legal position that where the declarant survives, his statement can not be used as a dying declaration. As long as the maker of the statement alive, it would remain only in the realm of statement recorded during investigation. He further stated that Faridul had also beaten him. 15. It is a clear legal position that where the declarant survives, his statement can not be used as a dying declaration. As long as the maker of the statement alive, it would remain only in the realm of statement recorded during investigation. If he appears to give evidence, his declaration can be used to corroborate or contradict his testimony. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact, but its use is very limited to corroborate the testimony of such witness. 16. Our aforesaid view finds support of the Apex Court of the land as observed in para 5 of the judgment delivered in State of U.P. Vs. Veer Singh and Others (2004) 10 SCC 117 , which is reproduced here under:- "5. It is trite law that when the maker of a purported dying declaration survives, the same is not statement under Section 32 of the Indian Evidence Act, 1872 (for short "the Evidence Act") but is a statement in terms of Section 164 of the Code. It can be used under Section 157 of the Evidence Act for the purpose of corroboration and under Section 155 for the purpose of contradiction. This position was highlighted in Ramprasad Vs. State of Maharashtra (1999) 5 SCC 30 : 1999 SCC (Cri) 651, Sunil Kumar vs. State of M.P. (1997) 10 SCC 570 : 1997 SCC (Cri 879 and Gentela Vijayavardhan Rao Vs. State of Andhra Pradesh (1996) 6 SCC 241 ". 17. Before adverting the rival contentions and assessing the prosecution evidence, we may take note of this fact that as per FIR version incident appears to have been taken place in two parts. First part relates to the murder of Aslam. In that incident as per FIR version accused persons namely Aslam s/o Nijam (hereinafter referred to as "accused Aslam), Salli, Farid and Jamil entered into the house of Bunda, father of first informant Shamim, having weapons of assault and dragged Aslam (here in after referred to as "deceased") out side the house. Accused Salli and Jamil caught hold the hands of Aslam (deceased) and accused Aslam inflicted him with bughda and Farid with knife. Accused Salli and Jamil caught hold the hands of Aslam (deceased) and accused Aslam inflicted him with bughda and Farid with knife. Second part of the incident starts when seeing all this Raees came on the door of the house, then as per FIR version he was caught hold by accused persons Islam, Munna and Abdul Shakoor, who all were standing outside the door, having knife and Bugda in their hands and accused Munna assaulted Raees by Bugda. 18. Now we have to asses the evidence of prosecution witnesses. PW1 Rais who was injured in the same incident has deposed before the court that aforesaid four accused persons had entered into the house and dragged deceased Aslam out side the house Accused Salli ans Jamil caught hold deceased Aslam and accused Aslam stabbed him by knife. Accused Farid also assaulted him with knife but it did not hit him. He further says that seeing this when he came on the door, he was encircled by Islam, Shakoor and Munna. On exhortation of Shakoor, accused Aslam also inflicted a knife blow on him. Undisputedly in all the three dying declarations, as shown above names of accused persons Munna, Islam and Jamil were not shown. In cross examination he denies from such fact and said that he had disclosed the names of aforesaid accused as they were present on the spot and why their names are not shown, he doesn't know the reason. He further states that his brother deceased Aslam was assaulted by accused Aslam only. Accused Farid also tried to assault him by knife but he remained unhurt. A careful scrutiny of FIR version, Facts disclosed in the dying declaration and oral testimony of Pw.1 Raees show great contradictions. Non disclosing the names of appellants in dying declarations of Pw.1 puts a shadow of serious doubt regarding their presence on spot at the time of the incident. As per FIR version it was accused Munna who caused injuries to Raees but Raees himself in his oral testimony denies that version and says that accused Aslam had assaulted him. Thus his testimony is not only in contradiction with the version put in dying declaration but it also conflicts with the statement made by this witness to the Investigating officer under section 161 Cr.P.C. and in our considered opinion his evidence is not liable to be relied upon. 19. Thus his testimony is not only in contradiction with the version put in dying declaration but it also conflicts with the statement made by this witness to the Investigating officer under section 161 Cr.P.C. and in our considered opinion his evidence is not liable to be relied upon. 19. Now we take the evidence of Pw.2 Shabbir. He has stated that it was the accused Aslam who caused injuries to deceased Aslam and Raees both. His this statement is again in contradiction of the FIR version. He further says that he had not stated before investigation officer that accused Munna assaulted Raees with Bugda. His this statement is again in contradiction of his own statement under section 161 Cr.P.C. It is also a point to be noted that as per FIR version accused Aslam caused injuries with Bughda but this witness says accused Aslam caused injuries with knife. All these discrepancies are very serious which makes the evidence of Pw.2 unreliable. 20. As far as testimony of Pw.3 Shamim First informant is concerned, she has deposed before the court that four accused persons namely Aslam, Salli, Jamil and Farid had entered into the house and dragged the deceased Aslam outside the house. Accused Salli and Jamil caught hold him and accused Farid assaulted with knife but no injury was caused then accused Aslam caused bughda blow on him. She further says that she had also seen Shakoor, Islam and Munna standing outside the house. Accused Munna was having no weapon in his hands and he had not caused any injury too. Except accused Aslam no other caused injuries to Raees. It has also been stated by her that She had not disclosed at the time of registering the FIR that Munna had assaulted Rais with Bugda with a view to kill him. A careful examination of this witness shows that as per her own version accused Munna was having no weapon and he caused no injury but in FIR he is shown to be the main assailant who caused injuries to Raees, which makes the impression that this witness has not put true version before the court and her testimony is full of discrepancies and in our opinion her testimony lacks confidence and it can not be safely relied upon. 21. PW7 Baboo has also been adduced as an eye witness. This witness depicts a new version. 21. PW7 Baboo has also been adduced as an eye witness. This witness depicts a new version. As per him all the 7 accused persons were having knives in their hands and all of them caught hold deceased Aslam. Accused Farid gave knife blow but it did not hit the deceased, thereafter Accused Aslam inflicted him with knife. He further says that Accused Aslam caused knife blow on Raees. It is also stated by him that he had seen no weapon in the hands of accused Munna, it may in his fist. He also denied from the statement recorded by Investigating officer in respect of causing injury by accused Munna. Evidence of this witness is again against the prosecution version itself and also in contradiction of other witnesses of facts adduced on behalf of prosecution. His oral evidence is also in contradiction of his own statement given to the Investigating Officer, so in our view, evidence of this witness too can not be safely relied upon. 22. In view of the discussion made above it comes out that prosecution evidence is full of discrepancies and contradictions and none of the eye witness is trustworthy. At this stage it would be proper to mention here that injured Raees in his second dying declaration as stated above, has asserted that ^^esjs nwljs lkFkh vlye iq= >Yyj Bsdsnkj ekS0 fnYyhxsV vyhx< tks esjs lkFk vk jgk Fkk ds Hkh vlye iq= futke o lYyh iq= irk ugha tks fd fupku ekSgYyk vrjkSyh ds gaS nksuksa us pkdw ls ekjk^^ his this statement coupled with the discrepancies in prosecution evidence give a utter surprise to us creating serious doubt that the incident was not happened in the manner as set up by prosecution in First Information Report. 23. Now one point remains for discussion is as to whether the conviction of appellants with the aid of section 149 I.P.C. is legally sustainable? Learned Counsel for the appellant has submitted that, appellants were not the members of any unlawful assembly and prosecution has not succeeded in establishing their presence on the spot and their participation in the crime. In Kuldip Yadav vs State of Bihar (2011)5 SCC 324 referred by the appellants the Hon'ble Supreme Court has observed in para 36 as under: 36. In order to understand the rival claim, it is useful to refer Section 149 which reads as follows:- "149. In Kuldip Yadav vs State of Bihar (2011)5 SCC 324 referred by the appellants the Hon'ble Supreme Court has observed in para 36 as under: 36. In order to understand the rival claim, it is useful to refer Section 149 which reads as follows:- "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established. The above principles have been reiterated in Bhudeo Mandal and Others vs. State of Bihar (1981) 2 SCC 755 ." 24. In view of the law cited above it comes out that Section 149 I.P.C. creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was committed in prosecution of the common object of unlawful assembly of accused persons. Since this Section imposes a penal liability, it must be safely construed as it seeks to punish members of the unlawful assembly for the offence or offences committed by their associates in carrying out the common object of the assembly. Since this Section imposes a penal liability, it must be safely construed as it seeks to punish members of the unlawful assembly for the offence or offences committed by their associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish common object of the assembly or was one which the members knew to be likely to be committed. There must be nexus between common object and the offence committed. It is not the intention of the legislature in enacting Section 149 I.P.C. to render every member of an unlawful assembly liable to punish for every offence committed by one or more of its members. In order to invoke Section 149 I.P.C. it must be shown that incriminating act was done to accomplish the common object of the unlawful assembly. If the members of the assembly knew or were aware of the likelihood of the particular offence being committed in prosecution of the common object they would be liable for the same under Section 149 I.P.C. 25. In the matter in hand, as per prosecution version the role assigned to appellant Jamil is that he was one of the four accused, who entered in to the house and dragged deceased Aslam out side the door thereafter caught hold deceased Aslam and accused Aslam assaulted the deceased and role assigned to the appellant Munna is that he alongwith accused Islam and Abdul Shakoor was standing in front of the door and encircled injured Raees and caused injury to him but as per the evidence of eye witnesses, as discussed above, the prosecution has failed to establish their presence on the spot at the time of occurrence, and in this situation they can not be held liable with the aid of section 149 I.P.C. 26. Going through the aforesaid discussion our independent analysis of the evidence on record coupled with the infirmities in prosecution evidence, which we have noticed above, has created an impression to our mind that the prosecution has not been able to bring home the guilt to the appellants beyond reasonable doubt. Consequently appellants are entitled for the benefit of doubt. 27. Hence the appeal succeeds and is hereby allowed. Consequently appellants are entitled for the benefit of doubt. 27. Hence the appeal succeeds and is hereby allowed. The conviction and sentence awarded by Sessions Judge, Aligarh in Sessions Trial No. 170 of 1983 (State of U.P. vs. Farid and 6 others) arising out of case crime no. 258 of 1982, under Section 147, 148, 323, 307, 302 I.P.C. against the appellants no. 4 and 6 namely Jamil and Munna is set aside. Since the appellants are on bail, their bail bonds are cancelled and sureties are discharged provided they furnish fresh bail bonds and sureties in compliance of the provision under section 437A Cr.P.C. Before the trial court .The court concerned shall ensure the compliance of the order. 28. Let this order be communicated to the Court concerned at the earliest for compliance under intimation to this court.