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2016 DIGILAW 506 (CAL)

Yusuf Ali Gazi v. State of W. B.

2016-06-24

RANJIT KUMAR BAG

body2016
JUDGMENT : RANJIT KUMAR BAG, J. 1. This appeal arises out of judgment and order of conviction and sentence passed by learned Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas in Sessions Trial No. 1(6) of 2001 corresponding to Sessions Case No. 15(6) of 1994, by which the appellants were sentenced to imprisonment for various terms and were directed to pay fine for the offence punishable under Section 498A and under Section 304B of the Indian Penal Code. 2. The backdrop of the conviction and sentence of the appellants is as follows: One Md. Arsad Ali Gazi filed a written complaint before the Officer-in-charge of Basirhat Police Station on the basis of which Basirhat Police Station Case No. 170 dated June 9, 1990 under Sections 498A/304B of the Indian Penal Code was registered. It appears from the said written complaint that one Mumtaj Begum was married to the appellant-Yusuf Ali Gazi in the month of Aghrayan, 1396 BS, according to Muslim rites. The mother of Mumtaj Begum gave cash of Rs.6,000/-, gold ornaments and other articles as gift in the marriage ceremony. Mumtaj narrated to her maternal uncle, maternal aunts and her mother that she was subjected to harassment and torture by her husband and parents-in-law in order to create pressure for non-fulfilment of demand of more money. This incident was reported to the members of local Gram Panchayat. On June 2, 1990 the younger brother of the de facto complainant went to the matrimonial home of Mumtaj, when the appellants threatened him with dire consequences if their demand for balance amount of money is not fulfilled within a period next seven days. One June 4, 1990 at about 10-11 P.M. Mumtaj was subjected to physical torture by her husband and parents-in-law and thereby Mumtaj died in her matrimonial home. The de facto complainant suspected that Mumtaj committed suicide due to torture inflicted on her by her husband and parents-in-law. The police investigated the said criminal case and submitted charge sheet before the appropriate court of law. 3. The trial court framed charge against the appellants on the allegation of committing offence under Section 498A and under Section 304B of the Indian Penal Code. On conclusion of trial all the appellants were found guilty of the charge under Sections 498A/304B of the Indian Penal Code. 3. The trial court framed charge against the appellants on the allegation of committing offence under Section 498A and under Section 304B of the Indian Penal Code. On conclusion of trial all the appellants were found guilty of the charge under Sections 498A/304B of the Indian Penal Code. The trial court convicted the appellants and sentenced them to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/- each, in default to suffer imprisonment for one month more for the offence punishable under Section 498A of the Indian Penal Code. The appellants were also convicted and sentenced to suffer rigorous imprisonment for seven years each and to pay fine of Rs.2,000/- each, in default to suffer imprisonment for two months more for the offence punishable under Section 304B of the Indian Penal Code. The trial court gave direction so that the appellants would serve the sentences concurrently and the period of imprisonment undergone by the appellants as under trial prisoner would be set off. The appellants have challenged the said judgment and order of conviction and sentence by preferring this appeal. 4. Mr. Debabrata Acharya, learned counsel for the appellant nos. 2 and 3 contends that the prosecution has failed to adduce any evidence to implicate the parents-in-law of the deceased in the offence punishable under Section 498A and under Section 304B of the Indian Penal Code. He submits that bald statements by the prosecution witnesses cannot establish that the deceased was subjected to cruelty by the parents-in-law of the deceased. By referring to the evidence of the doctor who conducted post mortem examination on the dead body of the deceased, Mr. Acharya argues that the doctor has failed to opine whether the deceased died an unnatural death. He has also pointed out the lacunae in the examination of the appellant nos. 2 and 3 under Section 313 of the Code of Criminal Procedure and submits that the appellant nos. 2 and 3 did not get opportunity to explain about the subsequent opinion of the doctor regarding cause of death of the deceased. Mr. He has also pointed out the lacunae in the examination of the appellant nos. 2 and 3 under Section 313 of the Code of Criminal Procedure and submits that the appellant nos. 2 and 3 did not get opportunity to explain about the subsequent opinion of the doctor regarding cause of death of the deceased. Mr. Acharya has relied on four decisions of the Supreme Court reported in (2003) Crimes (1) 244 (SC), (2011) 3 C Cr LR (SC) 480, (2012) 3 C Cr LR (SC) 34 and (2010) 3 C Cr LR (SC) 240 in support of the contention that the prosecution has failed to establish the charge against the appellant nos. 2 and 3 and as such they are entitled to be acquitted of the said charge. 5. Mr. Subhendu Sekhar Roy, learned counsel for the appellant no.1 submits that the extra judicial confession of the appellant no. 1 as proved by P.W.6 cannot be relied upon by the court, as the appellant no. 1 gave the said statement under pressure of the co-villagers immediately after the incident. He has relied upon the Division Bench Judgment of our High Court in “Biswaranjan Midya Chowdhury V. The State of West Bengal”, reported in 2015 (2) CLJ (Cal) 630 in support of his above contention. He has also pointed out the lacunae in the examination of the appellant no.1 under Section 313 of the Code of Criminal Procedure and submits that the appellant no.1 was deprived of the opportunity to explain the cause of death of the deceased. 6. Mr. Ayan Basu, learned counsel for the State has referred to the evidence of P.W. 4, P.W. 11, P.W. 12 and P.W. 21 to impress upon the court that there is evidence of torture and harassment of the deceased by all the appellants for demand of dowry and that the deceased was subjected to torture soon before her death under unnatural circumstances. By referring to the document marked as Ext.-5, Mr. Basu specifically submits that the prosecution has been able to prove the cause of death of the deceased as asphyxia, which is ante mortem in nature. According to Mr. Basu, there is justification for convicting and sentencing the appellants for the offence punishable under Sections 498A/304B of the Indian Penal Code. 7. Basu specifically submits that the prosecution has been able to prove the cause of death of the deceased as asphyxia, which is ante mortem in nature. According to Mr. Basu, there is justification for convicting and sentencing the appellants for the offence punishable under Sections 498A/304B of the Indian Penal Code. 7. For proper appreciation of the rival contentions made by learned counsel representing the respective parties I would like to make an analysis of the entire evidence adduced before the trial court. P.W.1 - neighbour of the appellants has not stated anything about the incident. This witness is declared hostile and permitted to be cross-examined by the prosecution and as such I am not inclined to rely on the evidence of P.W. 1. P.W. 2 - Rickshaw Van Puller has stated in evidence that in the night of the incident he took the victim Mumtaj towards hospital at the request of the appellant no.1 who happens to be husband of the deceased. It further appears from the evidence of P.W.2 that the husband of the deceased and the father-in-law of the deceased did not take the victim upto Basirhat Sub-divisional Hopital, but they took her back to home from the mid-way on suspicion that she had expired. The evidence of this witness does not help the prosecution in any manner to prove the incident. 8. P.W. 3 - is the maternal uncle of the deceased-Mumtaj. He reported the incident to the police by filing a written complaint, which has been treated as First Information Report and marked as Ex-1. It transpires from the evidence of P.W. 3 that the husband and the parents-in-law physically assaulted Mumtaj and tortured her mentally for getting more money from the mother of the deceased. P.W. 3 has specifically stated in his evidence that she came to know about the assault and torture of Mumtaj by her husband and parents-in-law for demand of more money from the deceased herself when she visited the house of P.W.3. Nothing transpires from cross-examination to disbelieve the evidence of P.W.3. So, I would like to give credence to the oral testimony of P.W. 3 who has corroborated his statement in FIR (Ext. -1). 9. Nothing transpires from cross-examination to disbelieve the evidence of P.W.3. So, I would like to give credence to the oral testimony of P.W. 3 who has corroborated his statement in FIR (Ext. -1). 9. P.W. 4 - the maternal aunt of the deceased has stated in evidence that she came to learn from the deceased-Mumtaj how she was tortured by her husband and parents-in-law for demand of money after her marriage. It is elicited from the evidence of P.W.4 that the deceased Mumtaj requested her to sell the property of her mother and to give money to her husband and in-laws, so that she can live in the matrimonial home. The cross-examination of P.W. 4 reveals that she has given the statement of the above fact before the Investigating Officer during investigation of the case. Nothing transpires from cross-examination to disbelieve the oral testimony of P.W.4 who has corroborated the evidence of P.W. 3. 10. P.W. 5, P.W.7, P.W.8, P.W. 9 and P.W. 10 - all neighbours of the appellants have not stated anything about the incident of physical assault and mental torture on the deceased-Mumtaj by her husband and parents-in-law. What transpires from the evidence of P.W. 5 is that he heard hue and cry from the house of the appellants and proceeded towards the house and found the dead body of the deceased-Mumtaj. P.W. 7 only identified the appellants in the court. P.W. 8 is declared as hostile and permitted to be cross-mined by the prosecution. Similarly, both P.W. 9 and P.W.10 are also declared as hostile and permitted to be cross-examined by the prosecution. P.W. 8, P.W.9 and P.W. 10 have stated during cross-examination by defence that they have never heard about any quarrel between the appellants and deceased-Mumtaj. Since these witnesses are declared hostile and permitted to be cross-examined by the prosecution, I am not inclined to give any credence to the oral testimony of these witnesses. 11. P.W. 6 is the scribe of the written complaint treated as First Information Report (Ex-1). This witness is also a member of Champa Pukur Gram Panchayat and neighbour of the appellants. He went to the place of occurrence immediately after the incident of death of Mumtaj. He has stated in his evidence that the appellant no.1 confessed his guilt when the appellant no.1 was surrounded by the villagers in his residence. This witness is also a member of Champa Pukur Gram Panchayat and neighbour of the appellants. He went to the place of occurrence immediately after the incident of death of Mumtaj. He has stated in his evidence that the appellant no.1 confessed his guilt when the appellant no.1 was surrounded by the villagers in his residence. This witness has stated that the appellant no.1 disclosed before him how he physically assaulted the victim with lathi and there after killed her by covering her body with kantha (pieces of clothes stitched together for being used as mattress). This witness has also stated in cross-examination that he narrated about the extra judicial confession of the appellant no.1 before the Investigating Officer of the case. It is true that extra judicial confession is a weak piece of evidence and the court cannot solely rely on extra judicial confession to base the conviction of the accused person. However, the extra judicial confession must be true and voluntary. In “Biswaranjan Midya Chowdhury V. The State of West Bengal” reported in 2015 (2) CLJ (Cal) 630 the Hon'ble Division Bench of our High Court has enumerated in paragraph 11 the circumstances when extra judicial confession cannot be considered to be free and voluntary. In the said report the Hon'ble Division Bench discarded the extra judicial confession as the appellant gave the statement when he was surrounded by the villagers who had put pressure for giving the statement and as such the statement was not considered to be free and voluntary. On scrutiny of evidence of P.W. 6, I find that the appellant no. 1 made extra judicial confession of killing the deceased when he was surrounded by the local people and he made a request to P.W.6 to save him from the outrage of the people of the locality. Since the appellant no.1 made extra judicial confession before P.W. 6 when he was surrounded by the co-villagers and was under threat of the co-villagers, the said extra judicial confession cannot be considered to be free and voluntary and as such I am not inclined to rely on the said extra judicial confession of the appellant no.1. 12. P.W. 11 - Upapradhan of Champa Pukur Gram Panchayat has given vivid description of demand of money by the appellants and the torture inflicted on the deceased-Mumtaj by the appellants. 12. P.W. 11 - Upapradhan of Champa Pukur Gram Panchayat has given vivid description of demand of money by the appellants and the torture inflicted on the deceased-Mumtaj by the appellants. It is elicited from the evidence of P.W. 11 that the father-in-law of the deceased-Mumtaj demanded Rs.10,000/- at the time of marriage and the mother of Mumtaj could give Rs.6,000/- and the balance amount of Rs.4,000/- could not be paid by the mother of Mumtaj. It further appears from the evidence of P.W.11 that the mother of Mumtaj decided to give balance amount of Rs.4,000/- to the appellants after selling out her property, but Mumtaj was physically assaulted and mentally tortured for the delay in making payment of Rs.4,000/-. This witness came to know about the incident of torture and demand of balance amount of Rs.4,000/- by the appellants as he approached the father-in-law of the deceased-Mumtaj for an amicable settlement of the dispute between them, which took place about a week before the death of Mumtaj. I do not find any cogent reason to disbelieve the evidence of this independent witness who was Upapradhan of Champa Pukur Gram Panchayat at the relevant point of time. Accordingly, I give much credence to the oral testimony of P.W. 11. 13. P.W. 12 - mother of the victim-Mumtaj has given graphic description of torture inflicted on Mumtaj by the appellants and the demand of money made by the appellants. It transpires from the evidence of P.W. 12 that the appellants demanded Rs.10,000/- for the marriage of Mumtaj, apart from other articles and gold ornaments and she arranged for Rs.6,000/- at the time of marriage. She had stated that she assured the appellants to pay the balance amount of Rs.4,000/- by selling her landed property, but the appellants harassed and tortured Mumtaj for non-payment of balance amount of Rs.4,000/-. This witness came to learn from Mumtaj that she would die if the balance amount of Rs.4,000/- is not paid to the appellants immediately. This witness has specifically stated in evidence that the deceased-Mumtaj was harassed and treated with cruelty immediately before three to four days of her death for non-payment of balance amount of Rs.4,000/- to the appellants. Nothing transpires from cross-examination to disbelieve the oral testimony of P.W.12 who has corroborated the evidence of the de facto complainant (P.W.3) and the evidence of Upapradhan of Gram Panchayat (P.W.11). 14. Nothing transpires from cross-examination to disbelieve the oral testimony of P.W.12 who has corroborated the evidence of the de facto complainant (P.W.3) and the evidence of Upapradhan of Gram Panchayat (P.W.11). 14. P.W. 13 is the Inspector of Police who registered the First Information Report and as such his evidence does not help the prosecution to prove the incident. P.W. 14 is also Inspector of Police who submitted the charge sheet and collected F.S.L. report. P.W. 15 is constable of police who brought the dead body of Mumtaj to the Sub divisional hospital at Basirhat for post mortem examination. P.W. 16 does not know about the incident. P.W. 17 also does not know about the incident. P.W. 19, neighbour of the appellants has no knowledge about the incident. P.W. 20, maternal aunt of the deceased Mumtaj has stated in the evidence how Mumtaj was assaulted and tortured by the appellants in the matrimonial home for demand of more money. Similarly, P.W. 21 - another maternal aunt of the deceased Mumtaj has stated in evidence how Mumtaj was physically assaulted and mentally tortured by the appellants in the matrimonial home for demand of more money. This witness has stated in evidence that the appellants claimed Rs.20,000/- and they tortured the deceased-Mumtaj for non-payment of the said amount. Since the consistent evidence of reliable prosecution witnesses is that Mujmtaj was physically assaulted and mentally tortured for non-payment of balance amount of Rs.4,000/- by her mother, this witness has exaggerated the amount of money as Rs.20,000/- in her evidence. I would like to rely on the evidence of both P.W. 20 and P.W. 21 in spite of exaggerated statement given by P.W. 21 by discarding the exaggerated claim of money as narrated by P.W. 21. P.W. 22 - another maternal uncle of the deceased Mumtaj has also narrated about the torture inflicted on Mumtaj for demand of more money by the appellants, but this witness did not face complete cross-examination by the defence. Accordingly, I am not inclined to rely on the evidence of P.W. 22 to prove the incident of physical assault and mental torture on the deceased-Mumtaj and the incident of demand of dowry. 15. P.W. 18 - the doctor who conducted post mortem examination on the dead body of Mumtaj could not opine about the cause of death in the report of post mortem examination (Ext.-4). 15. P.W. 18 - the doctor who conducted post mortem examination on the dead body of Mumtaj could not opine about the cause of death in the report of post mortem examination (Ext.-4). The findings of post mortem examination of the dead body of Mumtaj reveals that the vital parts of the body were congested and there was presence of blood in the lungs. However, on the advice of the doctor viscera was preserved and sent to the Forensic Science Laboratory for chemical examination. On perusal of the report of Forensic Science Laboratory the doctor gave the final opinion that the cause of death of Mumtaj might be due to asphyxia leading to acute heart failure, which is ante mortem in nature. This final opinion about the death of Mumtaj given by doctor in separate sheet of paper is marked Ext.-5. No cross-examination of the doctor is done by the defence with regard to the document marked as Ext.-5. I can, thus, safely hold from oral testimony of P.W. 18 and the report marked as Ex-5 that the cause of death of Mumtaj is asphyxia, which is ante mortem in nature. The natural corollary of my above observation is that Mumtaj died an unnatural death and under circumstances which is not normal. 16. On an analysis of the evidence adduced by the prosecution before the trial court I find that the prosecution has been able to establish from the evidence of mother of the victim (P.W.12), maternal uncle of the victim (P.W. 3), two maternal aunts of the victim (P.W. 4 and P.W.20) and Upapradhan of the Gram Panchayat (P.W.11) that the victim Mumtaj was subjected to cruelty by the husband and father-in-law for non-fulfilment of demand of Rs.4,000/-. It is established from the evidence of the mother of the victim and the evidence of Upapradhan of Gram Panchayat (P.W. 12 and P.W. 11) that the victim was harassed and treated with cruelty by her husband about three/four days before her death. The tenor of testimony of the prosecution witnesses leads me to hold that the deceased Mumtaj was subjected to cruelty by the appellant no. The tenor of testimony of the prosecution witnesses leads me to hold that the deceased Mumtaj was subjected to cruelty by the appellant no. 1(husband of the deceased) and the appellant no.2 (father-in-law of the deceased) The above prosecution witnesses have consistently stated in evidence that Mumtaj was mentally tortured and physically assaulted by her husband and in-laws, though no specific role was attributed to the mother-in-law of the deceased in subjecting the deceased Mumtaj to cruelty. Accordingly, I am of the view that the deceased Mumtaj was subjected to cruelty by the appellant no.1 and the appellant no.2 for non-fulfilment of demand of Rs.4,000/-. It is also established from the evidence on record that soon before her death the deceased Mumtaj was harassed and treated with cruelty in the matrimonial home. I have already observed that Mumtaj died of asphyxia which is ante mortem in nature and as such her death was unnatural and not under normal circumstances. Since it is established from the evidence on record that Mumtaj was subjected to cruelty by her husband and father-in-law for non-fulfilment of demand of money and since she was also tortured and harassed soon before her death and since the deceased Mumtaj died unnatural death and under unnatural circumstances, the court must draw presumption under Section 113B of the Indian Evidence Act to hold both the husband and the father-in-law of the deceased guilty of committing dowry death of the deceased Mumtaj. 17. Now I would like to deal with the decisions cited on behalf of the appellants. Relying on the decision of the Supreme Court in “Nirmal Pasi V. State of Bihar”, reported in (2003) Crimes (1) 244 (SC) Mr. Acharya, learned counsel for the appellant nos. 2 and 3 submits that the appellant nos. 2 and 3 were not given the opportunity to explain about the cause of death of the deceased as no such question was put to the appellant nos. 2 and 3 during their examination under Section 313 of the Code of Criminal Procedure. In “Nirmal Pasi V. State of Bihar” the test identification parade of the accused persons was conducted after delay of more than one month from the date of arrest and as such the Supreme Court did not rely on the evidence of test identification of the accused persons. In “Nirmal Pasi V. State of Bihar” the test identification parade of the accused persons was conducted after delay of more than one month from the date of arrest and as such the Supreme Court did not rely on the evidence of test identification of the accused persons. In this report some aspects of incriminating evidence appearing against the accused persons were not put to the accused persons during their examination under Section 313 of the Code of Criminal Procedure and as such the Supreme Court did not hold the accused persons guilty of the charge of dacoity. On close scrutiny of the said report I find that the Supreme Court acquitted the accused persons of the charge of dacoity for not relying on the evidence of test identification parade which was conducted after more than one month of arrest of the accused persons without cogent explanation. In the instant case I do not find any delay on the part of the Investigating Agency in recording the statement of the witnesses or collecting second opinion about cause of death of the deceased from the doctor who conducted post mortem examination on the dead body of Mumtaj. Moreover, in the present case the deceased-Mumtaj died in the matrimonial home where the husband and parents-in-law were present and they took the dead body towards Sub-divisional Hospital at Basirhat, but returned with the dead body without seeking any opinion of the doctor from the said hospital. Accordingly, I do not think that the appellants have been prejudiced for not putting the evidence about cause of death of the deceased to the appellants during their examination under Section 313 of the Code of Criminal Procedure. The facts of the present case are clearly distinguishable from the facts of “Nirmal Pasi V. State of Bihar” (supra) and as such the ratio of the said report cannot be made applicable in the facts of the present case. 18. In “Gurdeep Singh V. State of Punjab”, reported in (2011) 3 C Cr LR (SC) 480 the Supreme Court did not find any evidence of unnatural death as the bones and ashes collected from the cremation site and sent to the Forensic Science Laboratory were found to have no poison. 18. In “Gurdeep Singh V. State of Punjab”, reported in (2011) 3 C Cr LR (SC) 480 the Supreme Court did not find any evidence of unnatural death as the bones and ashes collected from the cremation site and sent to the Forensic Science Laboratory were found to have no poison. In the instant case the opinion of the doctor is that the deceased Mumtaj died of asphyxia which is ante mortem in nature and the doctor formed the opinion on perusal of report of Forensic Science Laboratory. So, the facts of the present case are distinguishable from the facts of “Gurdeep Singh V. State of Punjab” and the said report is also not relevant in the present case. Similarly, in “Rohtash V. State of Haryana”, reported in (2012) 3 C Cr LR (SC) 34 the Supreme Court observed in paragraphs 21 and 22 that the prosecution failed to establish that the deceased died of poisoning, as the Forensic Science Laboratory failed to detect poison on an analysis of bones and other articles of the deceased collected from the cremation site. I do not find any relevance of the present report in this case where the cause of death is clearly ascertained and opined by the doctor who initially conducted post mortem examination on the dead body and ultimately gave the report on perusal of report of Forensic Science Laboratory. 19. Mr. Acharya has relied on the decision of the Supreme Court in “Durga Prasad V. State of M.P.”, reported in (2010) 3 C Cr LR (SC) 240 in support of his argument that the bald statements of the prosecution witnesses do not establish that the deceased-Mumtaj was subjected to cruelty within the meaning of Explanation to Section 498A of the Indian Penal Code. I have already observed that there is specific and categorical statement of the mother of the deceased (P.W. 12), maternal uncle of the deceased ((P.W. 3), two maternal aunts of the deceased (P.W. 4 and P.W. 20) and Upapradhan of Gram Panchayat (P.W. 11) that the deceased Mumtaj was subjected to cruelty by the husband and father-in-law of the deceased for non-fulfilment of demand of Rs.4,000/-. The cruelty included physical assault and mental torture. The cruelty included physical assault and mental torture. It has been established from the evidence of the above witnesses that the mental torture of the deceased came to such a pass that Mumtaj had to disclose to her mother that she would have to die if the demand of Rs.4,000/- is not fulfilled with immediate effect. So, I am unable to accept the contention made on behalf of the appellant nos. 2 and 3 that the prosecution witnesses have made some bald statements to establish cruelty of the deceased Mumtaj. The facts of “Durga Prasad V. State of M.P.” are clearly distinguishable from the facts of the present case and as such the ratio of the said report has no manner of application in the present case. However, in the absence of any evidence about the specific role of the mother-in-law of the deceased in subjecting the deceased Mumtaj to cruelty or in making demand of Rs.4,000/- I cannot persuade myself to hold the mother-in-law of the deceased guilty of charge under Section 498A and under Section 304B of the Indian Penal Code. 20. The upshot of my above entire observation is that learned Judge of the trial court is justified in convicting and sentencing appellant no.1 and appellant no.2, but he is not justified in convicting and sentencing appellant no.3 who happens to be the mother-in-law of the deceased Mumtaj. Accordingly, the judgment and order of conviction and sentence passed by learned Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas in Sessions Trial No. 1(6) of 2001 corresponding to Sessions Case No. 15(6) of 1994 is modified to the extent that the appellant no.3 Fatema Bibi is acquitted of the charge under Sections 498A and 304B of the Indian Penal Code. The appellant no.1 Yusuf Ali Gazi and the appellant no.2 Mainuddin Gazi are convicted under Section 498A of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year each and to pay fine of Rs.1,000/- each, in default to suffer imprisonment for one month more and they are also convicted under Section 304B of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years each and to pay fine of Rs.2,000/- each, in default to suffer simple imprisonment for two months more. However, sentences will run concurrently and the period of imprisonment undergone by the appellants as under trial prisoners will be set off. The appellant no.1 who is in custody, will serve the remaining period of sentence and the appellant no.2 is directed to surrender before the trial court within a period of four weeks from the date of the order to serve the sentence, in default the trial court is directed to issue warrant of arrest against him to compel his attendance to serve the sentence. Criminal appeal is, thus, allowed in part. 21. Let a copy of this judgment and order along with lower court records be sent down to learned court below for favour of information and necessary action. 22. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.