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2019 DIGILAW 1258 (HP)

Mohan Lal v. State Of Himachal Pradesh

2019-08-30

ANOOP CHITKARA

body2019
JUDGMENT : Anoop Chitkara, J. The petitioner, who is under arrest, on being arraigned as an accused in FIR Number 17 of 2019, registered under Section 376 of Indian Penal Code, 1860, dated 09.04.2019, in the file of Women Police Station, Mandi, District Mandi, HP, disclosing non-bailable offence, has come up before this Court under section 439 CrPC, seeking regular bail. 2. The status report(s) filed. I have seen the status report(s) as well as the police file to the extent it was necessary for deciding the present petition, and the police file stands returned to the police official. I have heard Sh. Prashant Chaudhary, learned counsel for the petitioner and Sh. Nand Lal, learned Additional Advocate General for the respondent/State. FACTS: 3. The gist of the First Information Report and the investigation is as follows: (a). One Smt. Prabhi Devi, aged 71 years, resident of village Nayol, who was accompanied with her son Sh. Gian Chand and the victim visited the Women Police Station, Mandi on 9th April, 2019. She informed that her husband had died around eight years ago and she is a home maker. She has a son named Gian Chand and a daughter (victim aged 27 years). She further informed the police that her daughter is a specially abled child with mental retardation because of which she is deaf and dumb, and as a result of her mental illness she could not study. (b) On 7.04.2019, her son had gone away from home to attend a condolence meeting. She alongwith her daughter had gone to the house of her God-brother Sh. Nagnu in his village Binol, P.O. Gharan to take lunch (dhaam). During day time, around 3 O'clock her daughter, by signal, informed her that she needs to urinate. On this she signalled her to go to the toilet constructed adjacent to the house and she herself sat in the corridor near the water tap. Near the water tap, one Smt. Summi and her daughter-in-law Smt. Shanta were washing utensils and she started talking to them and her daughter went inside the toilet. After some time her daughter started crying. On this she ran towards the toilet and tried to open the door, which was bolted from inside. The door was not very strong and when she pulled it then the entire door came out. After some time her daughter started crying. On this she ran towards the toilet and tried to open the door, which was bolted from inside. The door was not very strong and when she pulled it then the entire door came out. Inside the toilet she noticed that Mohan Singh, petitioner herein, who was resident of the village Binol, had opened the salwaar of her daughter and he had also opened his pyjama. He had laid down the victim on the floor and was himself lying on her. On this she pulled Mohan Singh and thereafter pushed him away. She raised voice and all this was seen by Summi and her daughter-in-law Shanta. She further stated that due to this the clothes of her daughter had become stained and she had washed them. (c) She further stated that on 7.04.2019 she could not come to lodge the report with the police because she was alone in the house. On the arrival of her son she visited the Police Station alongwith her son and daughter on 9.04.2019 to report that Mohan Singh had committed a wrong act with her daughter and it is not possible for her daughter to reveal as to what has actually happened with her and she demanded justice. Consequently, the police registered the aforesaid FIR and started the investigation. (d) The police got conducted the medical examination of the victim from the Zonal Hospital Mandi. On the same day, the accused was arrested and his medical examination was also conducted from the same hospital. The Investigating Officer could not decipher anything from the victim. Subsequently the statements under Section 164 CrPC of the victim and her mother Smt. Prabhi Devi were got recorded. The vaginal swabs, which were preserved by the Doctor, were sent for RFSL and the report of the RFSL has been received. 4. The petitioner had come up with the present bail petition which is not supported by any affidavit. It is contended that there are inimical relations of the bail petitioner with the family members of the complainant and due to such discourse, a false case has been registered. 5. The police has filed the status report and also filed supplementary status report dated 8.8.2019, as per which the Investigating Officer conducted further investigation and did not find any inimical relations between the parties. 5. The police has filed the status report and also filed supplementary status report dated 8.8.2019, as per which the Investigating Officer conducted further investigation and did not find any inimical relations between the parties. The status report also stated that in the year 2016, the son of the petitioner had contested the election of Pradhan of Gram Panchayat Maini and he had won that election and in the very same election the brother of the victim had also filed his nomination papers but he had withdrawn his name and did not contest the elections. 6. At the time of grant of bail a detailed analysis of evidence is not required. Only the evidence is to be seen just like a skeleton without flesh. However, to decide a bail petition for serious offence like the present one, prima facie the credibility and probability of the statements is to be analyzed. 7. Reasoning: (a) As far as the allegation of the bail petitioner regarding animosity is concerned, there is no documentary evidence to corroborate the same. The bail petition is not even supported by an affidavit and the further investigation conducted by the police has belied the same. Therefore, regarding animosity, at this stage, there is nothing on the record to arrive at any conclusion. (b) Even as per the allegations of the complainant Smt. Prabhi Devi, there was a dhaam which was organized at that place. Dhaam is a common feast given by families to the entire village in which even people who are close to them are also invited from other places. Generally there is a gathering of lot of people because of the dhaam. The dhaam was organized during day time and broad day light. If the allegations, in its entirety are seen, it makes up a situation as if the petitioner was waiting for a prey. He would not know that the victim would feel urination and come to that toilet. There was no loss of time between her cries and her mother breaking open the door. If the accused was such a pervert, then till the age of 56 years, of which he is, he might have some previous criminal history. The status report filed by the prosecution does not reveal any previous criminal history of the petitioner. (c). There was no loss of time between her cries and her mother breaking open the door. If the accused was such a pervert, then till the age of 56 years, of which he is, he might have some previous criminal history. The status report filed by the prosecution does not reveal any previous criminal history of the petitioner. (c). The incident took place in the house of the God-brother of the mother of the victim, who was resident of the same village where the accused was residing. After all, the victim and her mother were the guests of the God-brother of the mother of the victim. In such a situation, the delay in reporting the matter is one of the factors for consideration in bail. (d) The complainant (Prabhi Devi), specifically stated that she was waiting for her daughter near the toilet and was talking to one lady Summi and her daughter-in-law Shanta, who were washing utensils. This means that there was commotion nearby and accused was aware of the presence of the people. When the door was forcibly opened then this fact would also have been noticed by Summi and Shanta and the incident would have spread to the entire village like a wild fire. In such a situation, the non reporting of the incident to the police till 9.4.2019, would at least entitle the petitioner for the relief of bail. (e) As per the spot map, which is on page 20 of the police file, there is a common WC and Wash Room, which is marked as points A and B. The total width of the WC is two feet. The width of the wash room is four feet and so the entire width of the toilet is six feet. Within that, a two feet width Indian seat is laid. As per the complainant, the victim was made to lie down in the toilet which was before this WC and at this place she was laid. The width of the wash room is four feet and length is not mentioned by the Investigating Officer. For a person to lie down on this floor and for accused to lie over her, the length of this wash room would be at least six feet. The width of the wash room is four feet and length is not mentioned by the Investigating Officer. For a person to lie down on this floor and for accused to lie over her, the length of this wash room would be at least six feet. In the absence of any explanation, for the purpose of grant of bail, it at least raises some doubt about the fact that the victim was laid on the floor of the wash room. (f) The medico-legal certificate of the victim is dated 9.04.2019 at 4.50 p.m., which would take it to fifty hours after the alleged assault. The examining Doctor did not find any sign of injury over any part of her body. The Doctor did not find any injury on external genitals as well as on the anus. The Doctor did not immediately give opinion about sexual assault and reserved it till the report of the chemical analysis and the report of psychiatrist were received. The RFSL report did not find any blood and semen in the swabs obtained from the victim by the Doctor. According to the Doctor, the possibility of sexual assault could not be ruled out. (g) According to the complainant, when she had pushed the door the entire structure had come out. I have also seen the photographs in the police file which contains the photograph of the broken door. The entire wooden plank is shown to have been torn off from between. It cannot be said that it was a weak door and the age of the mother of victim being 71 years, who claimed to have pulled this door, is another factor which makes out a case for bail. (h) As per the status report the investigation is complete and the report under Section 173 CrPC already stands filed in the Court on 24.7.2019. (i) The petitioner is in judicial custody since 9.4.2019. (j) In the status report, there is no mention of previous criminal history of the bail petitioner. (k) The petitioner is a permanent resident of address mentioned in the memo of parties. Therefore, his presence can always be secured to face trial. (l) I am satisfied that no purpose will be served if the bail petitioner remains in the judicial custody. (m) I am of the considered view that, prima facie, petitioner has made out a case for grant of bail. 8. Therefore, his presence can always be secured to face trial. (l) I am satisfied that no purpose will be served if the bail petitioner remains in the judicial custody. (m) I am of the considered view that, prima facie, petitioner has made out a case for grant of bail. 8. The learned counsel for the petitioner submitted that because of the medical evidence it is not a case under Section 376 IPC and even if everything is admitted it will be a case of attempt to rape. He submitted that simply because the charge-sheet has been filed under Section 376 IPC or even if charges are framed thereunder it would not take away the character of the offence from attempt to rape to that of rape. He has specifically placed reliance on the decision rendered by this Court in Cr.MP(M) No. 1288 of 2014, titled as Raj Kumar vs. State of Himachal Pradesh alongwith other connected petition, decided on 6th February, 2015. 9. The cumulative effect of the above discussion, makes out a case for bail. In the result, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of 10,000/- (rupees ten thousand) with one surety in the like amount to the satisfaction of the Sessions Judge/Addl. Sessions Judge, Mandi, District Mandi, H.P. 10. This Court is granting the bail subject to the conditions mentioned in this order. The petitioner undertakes to comply with all directions given in this order and the furnishing of bail bonds by the petitioner is acceptance of all such conditions: (a) The petitioner shall neither influence nor try to control the investigating officer in any manner whatsoever. (b) The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or tamper with the evidence. (c) The petitioner undertakes not to contact the complainant and witnesses to threaten or browbeat them or to use any pressure tactics. (d) As per the status report the distance between the villages of the bail petitioner and the victim is eight kilometers. (c) The petitioner undertakes not to contact the complainant and witnesses to threaten or browbeat them or to use any pressure tactics. (d) As per the status report the distance between the villages of the bail petitioner and the victim is eight kilometers. Therefore, a direction is issued that the petitioner shall not enter the village of the victim within a radius of seven kilometers from the house of the victim, under any circumstance whatsoever till the completion of the trial. The respondent-State shall send a copy of this order to the Pradhan of the concerned Panchayat and in case he notices the accused to be present within the vicinity of seven kilometer from the house of the victim, then he shall inform the S.H.O. of the concerned Police Station, who in turn shall take appropriate recourse to law. This condition is being laid so that no trauma is caused to the victim, at least till the time of recording of the statement of the victim in Court. Such a condition is neither arbitrary nor unreasonable and the only purpose is that the victim is unable to come face to face with the accused and also has been imposed with a view that the accused is unable to influence the victim. (e) In Kunal Kumar Tiwari vs. State of Bihar, (2017) AIR SC 5416, the Hon'ble Supreme Court had referred to Sub Clause (c) of Section 437(3) of the Code of Criminal Procedure and stated that conditions of bail cannot be arbitrary, fanciful and cannot extend beyond the ends of provisions. The Supreme Court held that the phrase "interest of justice" as used under Sub Clause (c) of Section 437(3) means "good administration of justice", or "advancing the trial process" and inclusion of broader meaning should be shunned because of purposive interpretation. (f) In case, the petitioner is arraigned as an accused of the commission of any offence, prescribing the sentence of imprisonment of ten years or more, then within thirty days of knowledge of such FIR, the petitioner shall intimate the SHO of the present police station, with all the details of the present FIR as well as the new FIR. It shall be open for the State to apply to this Court, for cancellation of this bail, if it deems fit and proper. (g) The petitioner undertakes to attend the trial. 11. It shall be open for the State to apply to this Court, for cancellation of this bail, if it deems fit and proper. (g) The petitioner undertakes to attend the trial. 11. It is clarified that the present bail order is only with respect to the above mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner. 12. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above. 13. Simply because the petitioner has been granted bail, the learned trial Court shall pursue the case expeditiously as per its calendar. 14. Petition stands allowed in the aforesaid terms. JUDGMENT : Anoop Chitkara, J. The petitioner, who is under arrest, on being arraigned as an accused in FIR Number 17 of 2019, registered under Section 376 of Indian Penal Code, 1860, dated 09.04.2019, in the file of Women Police Station, Mandi, District Mandi, HP, disclosing non-bailable offence, has come up before this Court under section 439 CrPC, seeking regular bail. 2. The status report(s) filed. I have seen the status report(s) as well as the police file to the extent it was necessary for deciding the present petition, and the police file stands returned to the police official. I have heard Sh. Prashant Chaudhary, learned counsel for the petitioner and Sh. Nand Lal, learned Additional Advocate General for the respondent/State. FACTS: 3. The gist of the First Information Report and the investigation is as follows: (a). One Smt. Prabhi Devi, aged 71 years, resident of village Nayol, who was accompanied with her son Sh. Gian Chand and the victim visited the Women Police Station, Mandi on 9th April, 2019. She informed that her husband had died around eight years ago and she is a home maker. She has a son named Gian Chand and a daughter (victim aged 27 years). She further informed the police that her daughter is a specially abled child with mental retardation because of which she is deaf and dumb, and as a result of her mental illness she could not study. (b) On 7.04.2019, her son had gone away from home to attend a condolence meeting. She further informed the police that her daughter is a specially abled child with mental retardation because of which she is deaf and dumb, and as a result of her mental illness she could not study. (b) On 7.04.2019, her son had gone away from home to attend a condolence meeting. She alongwith her daughter had gone to the house of her God-brother Sh. Nagnu in his village Binol, P.O. Gharan to take lunch (dhaam). During day time, around 3 O'clock her daughter, by signal, informed her that she needs to urinate. On this she signalled her to go to the toilet constructed adjacent to the house and she herself sat in the corridor near the water tap. Near the water tap, one Smt. Summi and her daughter-in-law Smt. Shanta were washing utensils and she started talking to them and her daughter went inside the toilet. After some time her daughter started crying. On this she ran towards the toilet and tried to open the door, which was bolted from inside. The door was not very strong and when she pulled it then the entire door came out. Inside the toilet she noticed that Mohan Singh, petitioner herein, who was resident of the village Binol, had opened the salwaar of her daughter and he had also opened his pyjama. He had laid down the victim on the floor and was himself lying on her. On this she pulled Mohan Singh and thereafter pushed him away. She raised voice and all this was seen by Summi and her daughter-in-law Shanta. She further stated that due to this the clothes of her daughter had become stained and she had washed them. (c) She further stated that on 7.04.2019 she could not come to lodge the report with the police because she was alone in the house. On the arrival of her son she visited the Police Station alongwith her son and daughter on 9.04.2019 to report that Mohan Singh had committed a wrong act with her daughter and it is not possible for her daughter to reveal as to what has actually happened with her and she demanded justice. Consequently, the police registered the aforesaid FIR and started the investigation. (d) The police got conducted the medical examination of the victim from the Zonal Hospital Mandi. Consequently, the police registered the aforesaid FIR and started the investigation. (d) The police got conducted the medical examination of the victim from the Zonal Hospital Mandi. On the same day, the accused was arrested and his medical examination was also conducted from the same hospital. The Investigating Officer could not decipher anything from the victim. Subsequently the statements under Section 164 CrPC of the victim and her mother Smt. Prabhi Devi were got recorded. The vaginal swabs, which were preserved by the Doctor, were sent for RFSL and the report of the RFSL has been received. 4. The petitioner had come up with the present bail petition which is not supported by any affidavit. It is contended that there are inimical relations of the bail petitioner with the family members of the complainant and due to such discourse, a false case has been registered. 5. The police has filed the status report and also filed supplementary status report dated 8.8.2019, as per which the Investigating Officer conducted further investigation and did not find any inimical relations between the parties. The status report also stated that in the year 2016, the son of the petitioner had contested the election of Pradhan of Gram Panchayat Maini and he had won that election and in the very same election the brother of the victim had also filed his nomination papers but he had withdrawn his name and did not contest the elections. 6. At the time of grant of bail a detailed analysis of evidence is not required. Only the evidence is to be seen just like a skeleton without flesh. However, to decide a bail petition for serious offence like the present one, prima facie the credibility and probability of the statements is to be analyzed. 7. Reasoning: (a) As far as the allegation of the bail petitioner regarding animosity is concerned, there is no documentary evidence to corroborate the same. The bail petition is not even supported by an affidavit and the further investigation conducted by the police has belied the same. Therefore, regarding animosity, at this stage, there is nothing on the record to arrive at any conclusion. (b) Even as per the allegations of the complainant Smt. Prabhi Devi, there was a dhaam which was organized at that place. Therefore, regarding animosity, at this stage, there is nothing on the record to arrive at any conclusion. (b) Even as per the allegations of the complainant Smt. Prabhi Devi, there was a dhaam which was organized at that place. Dhaam is a common feast given by families to the entire village in which even people who are close to them are also invited from other places. Generally there is a gathering of lot of people because of the dhaam. The dhaam was organized during day time and broad day light. If the allegations, in its entirety are seen, it makes up a situation as if the petitioner was waiting for a prey. He would not know that the victim would feel urination and come to that toilet. There was no loss of time between her cries and her mother breaking open the door. If the accused was such a pervert, then till the age of 56 years, of which he is, he might have some previous criminal history. The status report filed by the prosecution does not reveal any previous criminal history of the petitioner. (c). The incident took place in the house of the God-brother of the mother of the victim, who was resident of the same village where the accused was residing. After all, the victim and her mother were the guests of the God-brother of the mother of the victim. In such a situation, the delay in reporting the matter is one of the factors for consideration in bail. (d) The complainant (Prabhi Devi), specifically stated that she was waiting for her daughter near the toilet and was talking to one lady Summi and her daughter-in-law Shanta, who were washing utensils. This means that there was commotion nearby and accused was aware of the presence of the people. When the door was forcibly opened then this fact would also have been noticed by Summi and Shanta and the incident would have spread to the entire village like a wild fire. In such a situation, the non reporting of the incident to the police till 9.4.2019, would at least entitle the petitioner for the relief of bail. (e) As per the spot map, which is on page 20 of the police file, there is a common WC and Wash Room, which is marked as points A and B. The total width of the WC is two feet. (e) As per the spot map, which is on page 20 of the police file, there is a common WC and Wash Room, which is marked as points A and B. The total width of the WC is two feet. The width of the wash room is four feet and so the entire width of the toilet is six feet. Within that, a two feet width Indian seat is laid. As per the complainant, the victim was made to lie down in the toilet which was before this WC and at this place she was laid. The width of the wash room is four feet and length is not mentioned by the Investigating Officer. For a person to lie down on this floor and for accused to lie over her, the length of this wash room would be at least six feet. In the absence of any explanation, for the purpose of grant of bail, it at least raises some doubt about the fact that the victim was laid on the floor of the wash room. (f) The medico-legal certificate of the victim is dated 9.04.2019 at 4.50 p.m., which would take it to fifty hours after the alleged assault. The examining Doctor did not find any sign of injury over any part of her body. The Doctor did not find any injury on external genitals as well as on the anus. The Doctor did not immediately give opinion about sexual assault and reserved it till the report of the chemical analysis and the report of psychiatrist were received. The RFSL report did not find any blood and semen in the swabs obtained from the victim by the Doctor. According to the Doctor, the possibility of sexual assault could not be ruled out. (g) According to the complainant, when she had pushed the door the entire structure had come out. I have also seen the photographs in the police file which contains the photograph of the broken door. The entire wooden plank is shown to have been torn off from between. It cannot be said that it was a weak door and the age of the mother of victim being 71 years, who claimed to have pulled this door, is another factor which makes out a case for bail. The entire wooden plank is shown to have been torn off from between. It cannot be said that it was a weak door and the age of the mother of victim being 71 years, who claimed to have pulled this door, is another factor which makes out a case for bail. (h) As per the status report the investigation is complete and the report under Section 173 CrPC already stands filed in the Court on 24.7.2019. (i) The petitioner is in judicial custody since 9.4.2019. (j) In the status report, there is no mention of previous criminal history of the bail petitioner. (k) The petitioner is a permanent resident of address mentioned in the memo of parties. Therefore, his presence can always be secured to face trial. (l) I am satisfied that no purpose will be served if the bail petitioner remains in the judicial custody. (m) I am of the considered view that, prima facie, petitioner has made out a case for grant of bail. 8. The learned counsel for the petitioner submitted that because of the medical evidence it is not a case under Section 376 IPC and even if everything is admitted it will be a case of attempt to rape. He submitted that simply because the charge-sheet has been filed under Section 376 IPC or even if charges are framed thereunder it would not take away the character of the offence from attempt to rape to that of rape. He has specifically placed reliance on the decision rendered by this Court in Cr.MP(M) No. 1288 of 2014, titled as Raj Kumar vs. State of Himachal Pradesh alongwith other connected petition, decided on 6th February, 2015. 9. The cumulative effect of the above discussion, makes out a case for bail. In the result, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of 10,000/- (rupees ten thousand) with one surety in the like amount to the satisfaction of the Sessions Judge/Addl. Sessions Judge, Mandi, District Mandi, H.P. 10. This Court is granting the bail subject to the conditions mentioned in this order. Sessions Judge, Mandi, District Mandi, H.P. 10. This Court is granting the bail subject to the conditions mentioned in this order. The petitioner undertakes to comply with all directions given in this order and the furnishing of bail bonds by the petitioner is acceptance of all such conditions: (a) The petitioner shall neither influence nor try to control the investigating officer in any manner whatsoever. (b) The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or tamper with the evidence. (c) The petitioner undertakes not to contact the complainant and witnesses to threaten or browbeat them or to use any pressure tactics. (d) As per the status report the distance between the villages of the bail petitioner and the victim is eight kilometers. Therefore, a direction is issued that the petitioner shall not enter the village of the victim within a radius of seven kilometers from the house of the victim, under any circumstance whatsoever till the completion of the trial. The respondent-State shall send a copy of this order to the Pradhan of the concerned Panchayat and in case he notices the accused to be present within the vicinity of seven kilometer from the house of the victim, then he shall inform the S.H.O. of the concerned Police Station, who in turn shall take appropriate recourse to law. This condition is being laid so that no trauma is caused to the victim, at least till the time of recording of the statement of the victim in Court. Such a condition is neither arbitrary nor unreasonable and the only purpose is that the victim is unable to come face to face with the accused and also has been imposed with a view that the accused is unable to influence the victim. (e) In Kunal Kumar Tiwari vs. State of Bihar, (2017) AIR SC 5416, the Hon'ble Supreme Court had referred to Sub Clause (c) of Section 437(3) of the Code of Criminal Procedure and stated that conditions of bail cannot be arbitrary, fanciful and cannot extend beyond the ends of provisions. (e) In Kunal Kumar Tiwari vs. State of Bihar, (2017) AIR SC 5416, the Hon'ble Supreme Court had referred to Sub Clause (c) of Section 437(3) of the Code of Criminal Procedure and stated that conditions of bail cannot be arbitrary, fanciful and cannot extend beyond the ends of provisions. The Supreme Court held that the phrase "interest of justice" as used under Sub Clause (c) of Section 437(3) means "good administration of justice", or "advancing the trial process" and inclusion of broader meaning should be shunned because of purposive interpretation. (f) In case, the petitioner is arraigned as an accused of the commission of any offence, prescribing the sentence of imprisonment of ten years or more, then within thirty days of knowledge of such FIR, the petitioner shall intimate the SHO of the present police station, with all the details of the present FIR as well as the new FIR. It shall be open for the State to apply to this Court, for cancellation of this bail, if it deems fit and proper. (g) The petitioner undertakes to attend the trial. 11. It is clarified that the present bail order is only with respect to the above mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner. 12. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above. 13. Simply because the petitioner has been granted bail, the learned trial Court shall pursue the case expeditiously as per its calendar. 14. Petition stands allowed in the aforesaid terms.