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2016 DIGILAW 827 (CAL)

Bistupada Mondal v. State of West Bengal

2016-10-05

TAPASH MOOKHERJEE

body2016
JUDGMENT : Tapash Mookherjee, J. 1. The present appeal is against the judgment and order of conviction and sentence dated 22.05.2013 and 23.05.2013 passed by the learned District and Sessions Judge, Fast Track Court-II, Basirhat, North 24 Parganas, in Sessions Trial No. 09 (05)/2004 arising out of Sessions Case No. 43 (3)/2004. By the said judgment and order the Trial Court convicted the Appellant Bistupada Mondal of the offence under Section 304 Part II of the Indian Penal Code (in short, I.P.C.) and sentenced him to suffer Rigorous Imprisonment for seven years and to pay fine of Rs. 1,000.00 (Rupees one thousand only) with a default clause. By the said judgment the Trial Court acquitted the other three accused persons in the case. 2. Prosecution’s case may be summarised, in brief, as follows:- 3. On 28.10.2003 one Anil Krishna Mondal of village Dakshin Kalitala under P.S. Hingalgunj, Dist North 24 Parganas submitted a complaint and narrated therein that in the morning of 26.10.2003 when the Appellant Bistupada Mondal with his three sons were raising fencing in the boundary of their land, their adjacent neighbour Rampada Mondal appeared and resisted the act on the plea that such fencing would obstruct the drainage system in his house. A quarrel ensued between the Appellant and his sons in one side and the said Rampada Mondal on the other side and during such quarrel the Appellant suddenly hit on the back of the head of Rampada Mondal with a thick branch of a tree lying there and due to such sudden hit Rampada Mondal failed on the ground. The family members and some local villagers as well, immediately rushed to the spot and shifted Rampada at his house. A local doctor was immediately called for, who advised for immediate hospitalisation of Rampada. On such advice, Rampada was taken to the local Hospital at Sandeshkhali immediately and was admitted there. The doctor in that Hospital advised immediate shift of the patient to any Hospital at Kolkata. Accordingly, attempt was made to take Rampada to Kolkata. But on the way Rampada succumbed to his injury. The persons accompanying Rampada, therefore, brought the dead body of Rampada to their village and Police was informed. The doctor in that Hospital advised immediate shift of the patient to any Hospital at Kolkata. Accordingly, attempt was made to take Rampada to Kolkata. But on the way Rampada succumbed to his injury. The persons accompanying Rampada, therefore, brought the dead body of Rampada to their village and Police was informed. Thereafter the aforesaid complainant submitted the F. I. R. to the Police on 28.10.2003, on the basis of which Hingalgunj Police Station Case No. 51, dated 28.10.2003 under Section 304/34 I. P. C. was started against the Appellant and his sons. After investigation charge-sheet under Section 304/34 I.P.C. was submitted against the Appellant and his three sons. 4. After submission of charge-sheet, the case was committed to the Court of learned Sessions Judge, North 24 parganas, in usual course, from where the case was transferred to the Court of learned Additional Sessions Judge, Fast Track Court-II, Basirhat, District North 24 Parganas, for trial. 5. Considering the materials collected during investigation charge under Section 304/34 I. P. C. was framed against the Appellant and other accused persons in the case and they denied the charge and pleaded their innocence. 6. To prove their charge, prosecution examined as many as 17 witnesses in the case and proved some documents as well. Defence tendered no evidence whatsoever. 7. Considering the evidence thus produced, the Trial Court was of the view that the charge under Section 304 Part II, was proved against the present Appellant and the Trial Court convicted the Appellant accordingly and passed sentence against the Appellant as mentioned earlier. The Trial Court acquitted the other three accused persons in the case for want of sufficient evidence, by the same judgment. Being aggrieved by such judgment and order of conviction and sentence the accused Bistupada Mondal filed the present appeal. 8. Mr. Purakayastha, learned Advocate appearing for the Appellant, pointed out that P.W.-1, P.W.- 3, P.W.- 4 and P.W.- 7 clearly stated that the incident in question took place in the morning of 26.10.2003 and P.W.-1, P.W.- 2, P.W.- 3, P.W.- 4, P.W.- 5, P.W.- 6, P.W.- 7, P.W.- 11 and P.W.- 13 clearly stated that the victim Rampada was taken to the Khulna Hospital on the very day of the incident. But in the F. I. R. it is stated that Rampada was taken to Khulna Hospital on 27.10.2003. So, there was no incident on 26.10.2003. But in the F. I. R. it is stated that Rampada was taken to Khulna Hospital on 27.10.2003. So, there was no incident on 26.10.2003. In reply, learned Advocate Mr. Gupta appearing for the State submitted that the date of Hospitalisation of the victim mentioned in the F. I. R. was an accidental mistake which the F.I.R. maker admitted during his cross examination. 9. As mentioned above, P.W.- 1, P.W.- 2, P.W.- 3, P.W.- 4, P.W.- 5, P.W.-6, P.W.- 7, P.W.- 11 and P.W.- 13 stated clearly that the incident took place on 26.10.2003. The same date has been also mentioned in the formal F. I. R. (Exhibit-4). Most of the witnesses have stated that the victim was shifted at Khulna Hospital on the very day of the incident. Exhibit – 5, is a report forwarded to the Hingalgang Police Station by the Medical Officer of Health Sandeshkhali Rural Hospital which is also known as Khulna Hospital as admitted. In the said report the Medical Officer informed the Police Station that the victim Rampada Mondal was admitted in that Rural Hospital on 26.10.2003 at 1.20 p. m. with injury. The said Medical Officer Dr Pijush Kanti Mondal (P.W.-15) in his evidence stated that Rampada Mondal was admitted in Sandeshkhali Rural Hospital on 26.10.2003 with injury on head and he himself supervised the medical treatment and he himself referred the patient to any state Hospital at Kolkata for better treatment. So, from all the above evidence considered together it is clear that the incident of assault took place on 26.10.2003 and the victim was shifted at Sandeshkhali Rural Hospital on that very day. In fact, P.W.-1, the F.I.R. maker, himself stated during his cross-examination that he mentioned a wrong date of Hospitalisation of the victim in the F. I. R. So, the point raised by Mr. Purakayastha is not acceptable. 10. The next contention of Mr. Purakayastha was that the delay behind the F.I.R. has not been properly explained and the fact itself is sufficient to create doubt in the prosecution’s case as a whole. Mr. Gupta contradicted the view and according to him, the delay has been sufficiently explained. 11. The chain of events after the incident have been narrated in detail by some of the witnesses. Mr. Gupta contradicted the view and according to him, the delay has been sufficiently explained. 11. The chain of events after the incident have been narrated in detail by some of the witnesses. The incident of assault took place in the morning of 26.10.2003 A local quack doctor was called for immediately after the incident and after giving some primary medical aid the injured was referred to the local Rural Hospital as stated by the said quack doctor, i. e., P.W.- 3. After such advice, the injured was taken to the said Sandeshkhali Rural Hospital locally known also as Khulna Hospital and the injured was admitted there on 26.10.2003. Thereafter on 27.10.2003 the doctor treating the injured, i.e., P.W.- 15 found the condition of the injured critical and he therefore advised for shifting the injured at any Government Hospital at Kolkata. Thereafter the injured was at first taken to Dhamakhali by a boat where a vehicle was hired for shifting the injured at Kolkata but on the way the victim succumbed to his injuries. The persons accompanying the victim failed to take any decision themselves on the spot and hence they carried the dead body to their village and kept it under a shade at Kalitala Bazar near to the house of the victim. Local Panchayat intervened and informed Hingalganj Police Station over telephone, but the Police did not come to the village promptly. So, being impatient P.W.-1 himself went to the Police Station on the following day and submitted the F. I. R. which was received by the Police Station in the night of 28.10.2003. The distance between the village of the victim and the local Police Station is about 50 Km as found from Exhibit- 4. The two places are intervened by river and boat is the only mode of transport in the area. All facts have come out from the evidence of the witnesses. So, if all the aforesaid situations are perceived by realistic approach, then the delay does not appear to be unreasonable. 12. Mr. Gupta submitted that P.W.-1, P.W.- 2 and P.W.-5 are eyewitnesses to the occurrence and the prosecution rely on the oral testimonies of those witnesses as well as the medical evidence on record. He further submitted that the defence in different ways admitted the incident but disputed only the alleged involvement of the Appellant in it. 13. In reply, Mr. Mr. Gupta submitted that P.W.-1, P.W.- 2 and P.W.-5 are eyewitnesses to the occurrence and the prosecution rely on the oral testimonies of those witnesses as well as the medical evidence on record. He further submitted that the defence in different ways admitted the incident but disputed only the alleged involvement of the Appellant in it. 13. In reply, Mr. Purakayastha argued that none of the witnesses examined in the case is an eyewitness and all of them have falsely testified against the Appellant. 14. Undisputedly there was some incident in the courtyard of Rampada Mondal. A fact was suggested to P.W.- 1 by the defence that on the day of the incident there was a scuffle between the Appellant and the deceased Rampada and during that scuffle Rampada fell down due to a knock against a wall in the house of the Appellant and sustained injury on the back of his head. A similar suggestion was given to P.W.- 2 and P.W.- 5 also and all of them denied the suggestion. 15. During his examination under Section 313 Cr. P. C. the Appellant explained that the deceased Rampada tried to demolish his wall by a spade and while doing so, Rampada fell down on the ground and sustained injury due to which Rampada died. It was further explained by him that all the witnesses examined, came to the spot, but after the aforesaid incident was over and he has been falsely implicated in the case by them. 16. So, according to the version of the defence, there was an incident on the day and the deceased was injured by an accidental fall. But it is the case of the prosecution that during the incident referred to by the defence the deceased Rampada was assaulted by the Appellant and the assault ultimately resulted in the death of Rampada. So, let it be seen, whether the prosecution’s allegation of assault against the Appellant is proved, or not. In the Post-mortem Report, i.e., Exhibit- 7 the cause of death of Rampada Mondal is stated to be the result of brain haemorrhage which is ante-mortem in nature. A large Hematoma, measuring 4 cm. X 3 cm (approx.) was found over the left parital region of scalp with depressed fracture over the left parital bone, as found from the Postmortem Examination Report. 17. A large Hematoma, measuring 4 cm. X 3 cm (approx.) was found over the left parital region of scalp with depressed fracture over the left parital bone, as found from the Postmortem Examination Report. 17. Anil Krishna Mondal (P. W.-1) the defacto complainant in the case, stated in his evidence that on 26.10.2003 at about 8 a.m. the Appellant Bistupada and his sons were raising fencing by wooden poles and bamboos on the boundary of their land and the land of Rampada, and Rampada resisted it. He further stated that because of such resistance, a quarrel cropped up and during such quarrel the Appellant struck on the back of the head of Rampada by a heavy branch of tree. P.W.- 1 stated further that due to such assault Rampada fell down and become unconscious and hence taken to the Varanda of Rampada’s house. P.W.-1 during his cross-examination claimed that he saw the Appellant assaulting the deceased with a branch of a tree, from a very close distance. P.W.-1 also narrated the chain of incidents happening thereafter including the medical treatment of the deceased. What is stated by him in his evidence find support from the F. I. R. lodged by him (Exhibit-1). However, an anomaly has been pointed out by Mr. Purakayastha regarding the date of the incident and the date of first treatment of the deceased. The anomaly was due to a mistake, as explained by P.W.- 1 and the matter has been discussed in detail earlier. 18. P.W.-1 stated that due to the quarrel between the parties in connection with Appellant’s raising fencing, there was a hue and cry hearing which he rushed to the spot and just at that moment he found the Appellant striking on the back of the head of Rampada with a thick branch of a tree. The incident of fencing took place in the boundary of the lands of the parties. P.W.- 1 is an adjacent neighbour of Rampada and the place of occurrence is quite visible from his house, as found from the sketch map of the P. O. (Exhibit-10) prepared by the Investigating Officer. The time of the incident was the early hours of the morning. So, the presence of P.W.-1 at the P. O. during the incident is very much probable. 19. Smt. Kalpana Mondal (P.W.-2) is a married sister of the deceased Rampada. The time of the incident was the early hours of the morning. So, the presence of P.W.-1 at the P. O. during the incident is very much probable. 19. Smt. Kalpana Mondal (P.W.-2) is a married sister of the deceased Rampada. She stated that she came to her parental home just two before the incident. In her evidence she stated that in the morning of the incident the Appellant along with his sons tried to raise fencing on the boundary of their house which was resisted by her elder brother Rampada due to which the Appellant assaulted on the back of the head of her brother by a branch of tree and for such assault her brother fell down. She also stated that after her brother’s falling down, she along with others took her brother to the Varandah of their house and called for the local doctor. P.W.- 2 explained the subsequent events also. P.W.-2 in her cross- examination stated that coming out of their house she found her brother lying on the ground. According to Mr. Purakayastha, the statement itself indicates that P.W. –2 herself had not watched the assault. Bimala Mondal (P.W- 4) resides at a distance of 50 cubits from the house of the deceased and according to him the distance between the house of the deceased and the place where the deceased fell down due to assault was about 10 cubits only. At first there was a quarrel between the parties in connection with raising of fencing by the Appellant and his sons on the boundary in between their land and the land of the deceased and It was followed by a hue and cry as stated by P.W. –1 and thereafter the incident of assault took place. So, the entire incidents continued for sometimes and as such the attention of P.W.- 2 must have been attracted even if she was inside the house. That apart, the distance between her house and the place of incident was 10 cubits only. So, P.W. –2 had the opportunity and she was in a position to watch the incident of assault. It is a immaterial whether she was mentioned as an eyewitness by any other witness, or not. 20. Smt Sudharani Mondal (P.W.- 5) is the mother of the deceased. So, P.W. –2 had the opportunity and she was in a position to watch the incident of assault. It is a immaterial whether she was mentioned as an eyewitness by any other witness, or not. 20. Smt Sudharani Mondal (P.W.- 5) is the mother of the deceased. In her evidence she stated that in the morning of the incident the Appellant along with his sons tried to raise fencing on the drain in their land and hence her son resisted them due to which the Appellant struck on the head of her son by a branch of a tree. She further added that she was in the Varandah of their house and her daughter was in their kitchen when her son Rampada went to resist the Appellant and that she and her daughter rushed to the courtyard of their house. During cross examination she stood by what she stated during her examination-in-chief and clarified that the very moment her son fell down after assault she along with her daughter rushed to the spot. As mentioned earlier P.W. – 5 was in the Varandah of the house when the Appellant and his sons tried to raise fencing and they rushed to the spot just at the very moment when her son fell down after the assault. It should be noted here that the distance between the Varandah of P.W. – 5 and the exact place of occurrence was 10/20 cubits only as stated by P.W. – 4 and P.W. – 6. So, P. W. – 5, in particular, in all probabilities, watched all the incidents from the beginning to end. A witness is not supposed to mention in detail as to who were the persons present on the spot during the incident unless such a specific question is asked from either side. So, who has named whom as a witness, is not of much importance. The most important factor is to see whether a witness claiming himself to be an eyewitness had the opportunity to be present on the spot at the time of the incident and whether his presence during the incident is probable, in view of all the attending facts and circumstances appearing from the evidence on record in a case. In my opinion, P.W. - 1, P.W. – 2 and P.W. – 5 have overcome the test. 21. In my opinion, P.W. - 1, P.W. – 2 and P.W. – 5 have overcome the test. 21. Excepting P.W. – 1, P.W. – 2 and P.W. – 5 all other villagers went to the spot after the incident and their testimonies mainly relate to the events after the incident of assault. 22. The eyewitnesses, in one voice stated that the Appellant struck on the back of the head of Rampada with a thick branch of a tree. It would not be out of context to mention that the Appellant and his sons were raising fencing by wooden poles and bamboos just before the incident of assault. According to P.W. – 5 the fencing was being raised by the branches of tree. 23. Nirmal Mondal (P.W. – 3) is a quack doctor of the village. He was called on the spot by P. W. – 4 and P. W. – 3 reached the spot within a few minutes after the incident. P.W. – 3 stated that he found the victim lying on the Varandah of his house unconscious and on his asking after the victim regained his consciousness, the victim pointed out by hand, the injury on back of his head. P. W. – 3 further stated that after such indication he himself examined and found swelling which was being pointed out by the victim and he advised for shifting of the victim to the local Hospital and accordingly he along with Anil Mondal (P.W. – 1), Gunadhar Mistry (P.W. – 6) and others shifted the victim at the local Khulna Hospital. P.W. – 1 and P.W. – 3 also stated that after the incident they shifted the victim at Khulna P. H. C. 24. Dr. Pijush Kanti Mondal (P.W. – 15) was posted at Sandeshkhali Rural Hospital as a Medical Officer at the relevant time. The said Sandeshkhali Rural Hospital and the Khulna P. H. C. is the same Hospital as admitted by the learned Advocates on both sides. Dr Mondal stated that on 26.10.2003 he examined Rampada Mondal who was admitted in the Hospital at 1.20 p. m. on that day. He stated further that on examination of the patient he found a oedema (swelling) at his left lateral part of head. Dr Mondal stated that on 26.10.2003 he examined Rampada Mondal who was admitted in the Hospital at 1.20 p. m. on that day. He stated further that on examination of the patient he found a oedema (swelling) at his left lateral part of head. He further stated that the patient was vomitting at the time of his examination and the patient was under his treatment and having seen the patient’s condition detoriating he advised for shifting the patient at any Government Hospital at Kolkata. A written report forwarded by him to the Police Station was proved by him and marked Exhibit- 5. The document corroborates the oral statement of Dr Mondal. Dr. Bikash Chandra Mondal (P.W. – 16) performed Post-mortem Examination over the dead body of the victim and he found a large hematome, measuring 4 sm. X 3 cm. (approx.) over the left parital region of scalp of the deceased with depressed fracture over the left parital bone and haemorrhage as well. So, the medical evidence produced by the Prosecution completely supports the testimony of the witnesses on the point of injury sustained by the victim due to assault. 25. Admittedly the incident in question took place on the boundary between the land of the Appellant and that of the deceased. P.W. – 1 in one place of his cross- examination stated that on the boundary of both the parties there was a mud wall. According to P.W. – 2 there was fencing on the boundary by wooden poles and bamboos. Mr. Purakayastha argued that since a boundary wall or fencing was in existence, there was no question of victim’s raising protest against such fencing. 26. A boundary dispute was going between the parties since long prior to the incident as stated by P.W. – 1. P.W. – 1 stated that there was a mud wall in the boundary line. But he did not mention the exact location of that mud wall. P.W. – 1 in his examination-in-chief stated that the fencing was being raised by the Appellant and his sons by wooden poles and bamboos towards the West of the house of Rampada Mondal. During his cross-examination he further explained that the fencing was being raised on the drain of Rampada Mondal. P.W. – 1 in his examination-in-chief stated that the fencing was being raised by the Appellant and his sons by wooden poles and bamboos towards the West of the house of Rampada Mondal. During his cross-examination he further explained that the fencing was being raised on the drain of Rampada Mondal. P.W. – 2 stated that the victim tried to resist the act of raising fencing as there was a chance of flow of foul water from his house being restricted by such fencing. In cross-examination she clarified that there was a fencing on the boundary line by wooden poles and bamboos where the Appellant tried to raise a new fencing. According to P.W. – 5 the dispute started when the Appellant and his sons tried to raise fencing by branches of tree on the drain of their house. She further explained during her cross-examination that just before the assault the Appellant and his sons were trying to repair the existing fencing. So, such evidence of the witnesses indicate that the boundary dispute between the parties was never settled permanently and was going on and the trouble began when the Appellant and his sons tried to repair or raise a new fencing on the drain in the house of the deceased. 27. Now, let it be seen, how far the case, the defence tried to make out, by suggestions to the witnesses and answer of the Appellant to the questions put to him by the Court during his examination under Section 313 Cr. P. C. mentioned earlier, is believable. The defence picked up two specific cases one not connected with the other. According to suggestions to P.W. – 1, P.W. – 2 and P.W. – 5 there was a scuffle between the Appellant and his sons on one side and the deceased on the other side due to which the deceased had an accidental fall for a knock against the wall of the kitchen of the Appellant’s house and thus the victim sustained injury on the back of his head. Interestingly the Appellant himself’s version on the point was quite different. According to him, on the day of the incident the deceased tried to demolish a wall of their house with a spade and during such act the deceased had an accidental fall causing the injury, in question, to which the deceased ultimately succumbed. 28. Interestingly the Appellant himself’s version on the point was quite different. According to him, on the day of the incident the deceased tried to demolish a wall of their house with a spade and during such act the deceased had an accidental fall causing the injury, in question, to which the deceased ultimately succumbed. 28. It is true that according to the autopsy surgeon (P.W. – 16) the type of fracture found on the head of the victim may be caused by a dash against a wall. But from the sketch map of the place of occurrence prepared by the Investigating Officer (Exhibit - 10) no wall is found anywhere near to the place of occurrence. Nor there is any such cogent evidence on record to prove the existence of any wall at or near to the place of occurrence. The alleged fall of the appellant prior to the assault is not also in evidence. 29. It is true that it was drizzling when the incident started as found from the evidence. But none of the witnesses examined, has stated that the victim had an accidental fall because of the drizzling. There is no evidence also on record to suggest that it was the victim himself who tried to demolish any wall in the house of the Appellant by spade as claimed by the Appellant during his examination under Section 313 Cr.P.C. In fact, there is no evidence whatsoever to raise a probability of any incident happening as claimed by the defence. So, the conflicting alibi picked up by the defence and the total failure of the defence to probablise at least any of them, definitely strengthens the Prosecution’s case. 30. In reply, to the Appellant’s contention that the Appellant has been falsely implicated in the case, Mr. Gupta submitted that had the witnesses any ill-intention to implicate the Appellant and his sons who are acquitted by the Trial Court, for want of evidence, then it was natural for the witnesses to implicate all the accused persons in the case directly in the alleged assault resulting in the death of the victim. But instead of doing so, the witnesses held the present Appellant only responsible for the death of the victim. So, such fact itself rules out any chance of false implication of the Appellant in the case. I find sufficient force in such contention of Mr. Gupta. 31. But instead of doing so, the witnesses held the present Appellant only responsible for the death of the victim. So, such fact itself rules out any chance of false implication of the Appellant in the case. I find sufficient force in such contention of Mr. Gupta. 31. Having thus considered all the facts and circumstances of the case and the evidence on record, I have no hesitation to hold that the prosecution have successfully proved the charge under Section 304 Part II I. P. C. against the Appellant. 32. The last submission of Mr. Purakayastha was that the alleged assault causing the death of the victim was not a pre-planned act and it was committed out of a sudden excitement during a quarrel. So, the sentence of Rigorous Imprisonment for seven years is excessive and hence the sentence should be reduced. He has cited two decisions on the point, one reported in AIR 2009 Supreme Court 1711, (Shaikh Karimullah @ Babu & Ors.- versus – State of A. P.) and the other reported in AIR 1986 Supreme Court 309, (Mohinder Singh- versus – State (Delhi Administration)) . 33. Mr. Gupta argued that both the cases cited for the Appellant are fact based decisions and as such cannot be applied in this case. 34. It is true that the Appellant had not gone to the spot with preparations to kill the victim. But the fatal blow was on a vital part of the body, i.e., back of the head and weapon used was a thick branch of a tree. So, the Appellant had the knowledge that such a blow on the head was likely to cause death of the victim. So, Section 304 Part II, I. P.C. is well attracted in the case. Maximum punishment for such offence is imprisonment for 10 years. The sentence passed in the case is imprisonment for seven years only. So, the sentence is on the lower side. 35. So, Section 304 Part II, I. P.C. is well attracted in the case. Maximum punishment for such offence is imprisonment for 10 years. The sentence passed in the case is imprisonment for seven years only. So, the sentence is on the lower side. 35. In the case reported in AIR 1986 Supreme Court 309 (supra) the Appellant was convicted of the offence under Section 302 by the Trial Court and in the appeal, the High Court moved the conviction to the offence under Section 304 Part II, I.P.C. But considering the evidence on record the Apex Court altered the conviction from Section 304 Part II, I.P.C. to Section 325 I. P. C. and accordingly the sentence was also reduced to four years’ imprisonment. Similarly in the other case reported in AIR 2009 Supreme Court 1711 (supra) the Apex Court found the Appellant guilty of the offence under Section 325 I. P. C. and accordingly reduced the sentence to three years’ imprisonment. But as held above, the offence under Section 304 Part II, I. P. C. is attracted and proved in the present case. So, the aforesaid decisions are of no help to the Appellant. The sentence passed in the case is on the lower side as held above. So, I find no reason, whatsoever, to reduce the sentence in the case. 36. To conclude, the decisions of the Trial Court on all the points are logical and legal. So, no interference with the decisions of the Trial Court is called for in this appeal. 37. The appeal is dismissed. The judgment and order of conviction and sentence passed in the case against the Appellant are affirmed. 38. Let the L.C. Rs. along with a copy of this judgment be returned to the Trial Court at once.