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2019 DIGILAW 184 (PAT)

Dinesh Mukhiya v. State of Bihar

2019-01-30

PRAKASH CHANDRA JAISWAL, RAKESH KUMAR

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JUDGMENT : PRAKASH CHANDRA JAISWAL, J. 1. Heard Sri Suraj Narain Yadav, learned counsel assisted by Sri Upendra Kumar Choubey, learned counsel for the appellants and Sri Ajay Mishra, learned APP for the State on this criminal appeal. 2. This criminal appeal has been preferred against the Judgment and Order of conviction dated 23.01.2012 and Order of sentence dated 25.01.2012 passed by Additional Sessions Judge, FTC-II, Madhubani in Sessions Trial No. 487 of 2010 arising out of Andharamath P.S. Case No. 19 of 2010 whereby the learned trial court convicted the accused Dinesh Mukhiya for the offence punishable under Sections 376, 302 and 201 read with Section 34 of the Indian Penal Code and Harihar Mukhiya under Sections 302 and 201 read with Section 34 of the Indian Penal Code and sentenced Dinesh Mukhiya to undergo R.I. for life under Section 302/34 of the Indian Penal Code, R.I. for five years under Section 201/34 of the Indian Penal Code and R.I. for ten years under Section 376 of the Indian Penal Code and sentenced Harihar Mukhiya to undergo R.I. for life under Section 302/34 of the Indian Penal Code and R.I. for five years under Section 201/34 of the Indian Penal Code. All the sentences were directed to run concurrently. 3. Factual matrix of the case is that Andharamath P.S. Case No. 19 of 2010 was instituted under Sections 376 and 302/34 of the Indian Penal Code against the accused Dinesh Mukhiya and Harihar Mukhiya on the basis of the fardbeyan of Sikandar Mukhiya, S/o Ramadhin Mukhiya recorded by S.I. Nirmal Kumar Paswan, S.H.O., P.S. Andharamath on 20.05.2010 at 09:15 PM at Dharhara Bhatta Tole with the allegation in succinct that his co-villager Dinesh Mukhiya had taken Radio of his niece namely Sinki Kumari 3-4 days back. In the evening of 18.05.2010, Sinki Kumari had gone to the house of Dinesh Mukhiya to take back her radio and she is missing since then. He started making search of his niece along with his family members, villagers and Dinesh Mukhiya, but Dinesh Mukhiya used to misguide them. On mounting pressure by the villagers, Harihar Mukhiya fled away from his house while Dinesh Mukhiya confessed about strangling Sinki Kumari to death and dumping her dead body in Ziroga Sareh. Then he arrived at the said Sareh along with the villagers and found the dead body of Sinki Kumari with both hands severed. On mounting pressure by the villagers, Harihar Mukhiya fled away from his house while Dinesh Mukhiya confessed about strangling Sinki Kumari to death and dumping her dead body in Ziroga Sareh. Then he arrived at the said Sareh along with the villagers and found the dead body of Sinki Kumari with both hands severed. Fowl smell was bellowing from the dead body. He informed the matter to the police. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the accused Dinesh Mukhiya and Harihar Mukhiya. 5. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions and after commitment and on transfer finally the case came in the seisin of Additional Sessions Judge, F.T.C.-II, Madhubani for trial. 6. Charge against the accused Dinesh Mukhiya and Harihar Mukhiya was framed under Sections 302/34 and 201/34 of the Indian Penal Code and further charge against the accused Dinesh Mukhiya was framed under Section 376 of the Indian Penal Code. Charges were read over and explained to them by the Court to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether eight prosecution witnesses namely, Birendra Mukhiya, father of the deceased as PW-1, Sanju Devi, mother of the deceased as PW-2, Mania Devi, grand mother of the deceased as PW-3, Ramadhin Mukhiya, grandfather of the deceased as PW-4, Deo Narain Mukhiya, cousin grand-father of the deceased as PW-5, Informant Sikandar Mukhiya as PW-6, I.O. Nirmal Kumar Paswan as PW-7 and Dr. Hari Sharan Prasad, one of the member of the medical board conducting the autopsy of the cadaver of the deceased as PW-8. Prosecution has also filed and proved some documents by way of documentary evidence in the case. 8. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. Accused persons have also examined one witness namely Asharfi Mukhiya as DW-1 in buttress of their case. 9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Accused persons have also examined one witness namely Asharfi Mukhiya as DW-1 in buttress of their case. 9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, convicts have preferred this Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not. 12. It is submitted by learned counsel for the appellants that there is no eye witness of the occurrence. None has seen the deceased entering into the house of the appellants and dumping the dead body of the deceased in Ziroga Sareh by them. It is a case of circumstantial evidence. Deceased is said to have gone to the house of the appellant Dinesh Mukhiya to take back her radio which the appellant Dinesh Mukhiya had taken 3-4 days preceding to the occurrence and as per the account of the informant Sikandar Mukhiya (PW-6), the radio was found but it was not handed over to the police. He has also not stated as to whether the aforesaid radio was recovered from the house of the appellants. Thus, the prosecution has utterly and miserably failed to substantiate the material circumstances leading to hypothesis of the guilt of the appellants only and none else. It is further submitted that as per the witnesses account, a panchayati was organized regarding the occurrence, but punches of the alleged panchayati were not examined by the prosecution. It is also submitted that there is vital contradiction between the testimony of PW-2 and I.O. as per the account of PW-2, the dead body of the deceased was taken by her to her house from where the police had taken it into custody while I.O. has stated that he recovered the dead body from Ziroga Sareh. It is also submitted that there is vital contradiction between the testimony of PW-2 and I.O. as per the account of PW-2, the dead body of the deceased was taken by her to her house from where the police had taken it into custody while I.O. has stated that he recovered the dead body from Ziroga Sareh. It is also submitted that the occurrence is said to be of the evening of 18.05.2010, but the fardbeyan has been recorded after delay of two days on 20.05.2010 at 09:15 PM and on the basis of the aforesaid fardbeyan, F.I.R. was lodged on 20.05.2010 at 09:45 PM but it was sent to the court after two days i.e. on 22.05.2010 and the prosecution has not ascribed any plausible and convincing explanation for the aforesaid delay in recording the fardbeyan and also sending the F.I.R. to the Court which creates serious doubt about the prosecution case. It is also submitted that admittedly there is animosity between the parties and the appellants have been falsely implicated in the case due to aforesaid animosity. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellants beyond all reasonable doubts by adducing consistent, trustworthy, reliable and worth credence evidence. Hence, aforesaid judgment and order of conviction and sentence passed against the appellants is liable to be set aside and the appellants are entitled to be acquitted. 13. On the other hand, learned APP for the State advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the informant has supported the prosecution case in toto and other material witnesses have also corroborated the case of the prosecution. The ocular evidence of the prosecution also stands corroborated by the medical evidence and learned trial court correctly appreciating the facts and evidence available on record has rightly passed the impugned Judgment and Order of conviction and sentence which is liable to be upheld and this criminal appeal is shorn of merit and is liable to be dismissed. 14. From perusal of the record, it appears that to substantiate its case, the prosecution has examined altogether six material witnesses in the case. 14. From perusal of the record, it appears that to substantiate its case, the prosecution has examined altogether six material witnesses in the case. Out of them, PW-1 Birendra Mukhiya, who happens to be father of the deceased does not happen to be eye witness of the occurrence as in Para-1 of his examination-in-chief itself, he has stated that on the date of occurrence he was in Punjab. His wife gave information of the occurrence to him and on the said information, he arrived at his house three days later. On his arrival at his house, his wife divulged him that Dinesh Mukhiya had committed rape against her daughter Sinki Kumari and Harihar Mukhiya had strangled her to death and concealed her dead body near the Sareh river. In para-3 of his cross-examination, he has stated that his wife had informed him about the occurrence telephonically. 15. Pw-2 Sanjau Devi has further stated in Para-1 of her examination-in-chief that during the course of search, she along with Ramadhin Mukhiya, Deo Narain Mukhiya, Sikandar Mukhiya, Suraj Mukhiya and Awadh Kurmi went to the house of Dinesh Mukhiya. Dinesh Mukhiya divulged them that he had committed rape aginat Sinki Kumari and he and Harihar Mukhiya had committed her murder by strangling her neck and concealed the dead body in the paddy field located in Zirogabad. PW-3 has further stated in her examination-in-chief that after misguiding the villagers Dinesh divulged to them on third day that he had dumped Sinki Kumari in Jirogabad after eliminating her. He had also committed rape against her. In Para-5 of her cross-examination, she has stated that the statement given by Dinesh Mukhiya before the villagers was reduced in writing by Gauri Mukhiya, Zinda Mukhiya and Awadh Kolia. In Para-8 of her cross-examination, she has further stated that persons of 100-150 houses were present at the time of panchayati. Deo Lal Mukhiya and Surendra Mukhiya were Punches. They are witnesses in the case. PW-4 Ramadhin Mukhiya has further stated in his examination in chief that succumbing pressure mounted by villagers, Dinesh Mukhiya divulged that they had committed rape against Sinki Kumari and his brother Harihar Mukhiya had strangled her to death and they had buried the dead body in the paddy field located in Jirogabad. They are witnesses in the case. PW-4 Ramadhin Mukhiya has further stated in his examination in chief that succumbing pressure mounted by villagers, Dinesh Mukhiya divulged that they had committed rape against Sinki Kumari and his brother Harihar Mukhiya had strangled her to death and they had buried the dead body in the paddy field located in Jirogabad. In Para-4 of his cross-examination, he has stated that the confessional statement of Dinesh Mukhiya was reduced in writing before him but he vented his ignorance about the aforesaid paper. He has further stated that punches Awadh Yadav, Dukhan Mandal, Gauri Sahni, Bindeshwar Mukhiya, Suraj Mukhiya, Shiva Mukhiya and he himself had put their signature on the said paper. Aforesaid panchayati was held in the house of Awadh Koria. In Para-5 of his cross-examination, he has further stated that Panchayati was held at 4 PM in the evening which lasted for 1 -2 hours. Villagers of all the villagers were present there. Dinesh Mukhiya had confessed succumbing the pressure mounted upon him. PW-5 Deo Narain Mukhiya has further stated in his examination-in-chief that Dinesh Mukhiya initially parried the inquiry, but succumbing the pressure of villagers, he divulged that he had committed rape against Sinki Kumari and then he and his brother Harihar Mukhiya strangled her to death and dumped the dead body in the paddy field located in Zirogabad. In Para-7 of his cross-examination, he has stated that Dinesh had confessed his guilt before him, his family members and Bindeshwar Mukhiya, Gauri Sahni, Dukhan Mandal and Awadh. Suraj Mukhiya was also present there. Informant (PW-6) has further stated in his examination-in-chief that villagers caught hold Dinesh Mukhiya and grilled him about Sinki Kumari, whereupon he divulged that he and Harihar Mukhiya had dumped her dead body in zirogabad after eliminating her. He had committed rape against her before eliminating her. In Para-7 of his cross-examination, he has stated that the villagers had grilled Dinesh Mukhiya regarding Sinki Kumari. Kuldeep, Dukhan and Awadh had mounted pressure upon him. Succumbing the pressure, he confessed his guilt, but no paper regarding his confessional statement was prepared. He had committed rape against her before eliminating her. In Para-7 of his cross-examination, he has stated that the villagers had grilled Dinesh Mukhiya regarding Sinki Kumari. Kuldeep, Dukhan and Awadh had mounted pressure upon him. Succumbing the pressure, he confessed his guilt, but no paper regarding his confessional statement was prepared. From perusal of the testimony of the aforesaid witnesses, it appears that Dinesh Mukhiya had confessed the commission of occurrence of rape by him against Sinki Kumari and then strangling her to death along with his brother Harihar Mukhiya and concealing her dead body in the paddy field located in Zirogabad before the informant, his family members, number of villagers and punches mentioned hereinabove. But barring family members of the deceased, none of the aforesaid punches and villagers has been examined by the prosecution in corroboration of the confession of commission of the aforesaid occurrence by the appellant Dinesh Mukhiya and no plausible and convincing explanation has been assigned by the prosecution for their non-examination. Hence, adverse inference is drawn against the prosecution and aforesaid aspect of the case creates serious doubt making confession by the appellant Dinesh Mukhiya. Moreover, as per the account of the aforesaid witnesses, confession of the guilt of Dinesh Mukhiya was reduced into writing and the punches had put their signature thereon, but no such confessional statement bearing the signature of the punches or any independent witness has been brought on record which also creates serious doubt about giving confessional statement by Dinesh Mukhiya before the punches and rules out the aforesaid case of the prosecution. 16. Though prosecution has filed and proved the confessional statement of Dinesh Mukhiya given before the police marked as Exhibit-4, but from perusal of the aforesaid confessional statement, it appears that it does not bear the signature of any of the witness thereon. I.O. Nirmal Kumar Paswan (PW-7), who had recorded aforesaid confessional statement in Para-16 of his cross-examination has stated that the confessional statement of Dinesh Mukhiya neither bears the signature of any independent witness nor of any other police personnel. First page of the confessional statement also does not bear the signature of Dinesh Mukhiya. I.O. Nirmal Kumar Paswan (PW-7), who had recorded aforesaid confessional statement in Para-16 of his cross-examination has stated that the confessional statement of Dinesh Mukhiya neither bears the signature of any independent witness nor of any other police personnel. First page of the confessional statement also does not bear the signature of Dinesh Mukhiya. Moreover, from perusal of the aforesaid confessional statement, it appears that the aforesaid confessional statement of Dinesh Mukhiya was recorded on 21.05.2010 at 08:10 AM, but from perusal of the statement of the I.O. (PW-7) recorded in Para-9 and Para-10 of his cross-examination, it appears that the dead body of the deceased was recovered on 20.05.2010 on the basis of the rumour about dumping of the dead body of the girl in Zirogabad Sareh. Thus, the aforesaid confessional statement had not led to recovery of the dead body. Moreso, I.O. in Para-17 of his cross-examination has stated that no incriminating article was recovered from the house of Dinesh Mukhiya and radio was also not recovered from the possession of Harihar Mukhiya and Dinesh Mukhiya. Thus, the aforesaid confessional statement is not leading to recovery of either dead body or the radio or any incriminating article. Hence, the aforesaid confessional statement not leading to recovery is hit by Section 25 of the Indian Evidence Act and is not admissible in evidence and cannot be considered as basis for conviction of the appellants. 17. Pw-2 Sanju Devi has stated in Para-2 of her cross-examination that the occurrence of committing rape against Sinki Kumari and strangling her to death did not take place before her. PW-3 Mania Devi has stated in Para-3 of her cross-examination that she had neither seen Sinki Kumari being slain nor taking her by the appellants. PW-4 in Para-6 of his cross-examination has stated that he had not seen the occurrence of committing rape against Sinki Kumari and committing her murder by the appellants. From perusal of the testimony of PW2 Sanju Devi, PW-3 Mania Devi, PW-4 Ramadhin Mukhiya, PW-5 Deo Narain Mukhiya and PW-6 informant Sikandar Mukhiya, it appears that they have unanimously stated that at the time of occurrence Sinki Kumari had gone to the house of the appellant Dinesh Mukhiya to take back her radio and she is missing since then. From perusal of the testimony of PW2 Sanju Devi, PW-3 Mania Devi, PW-4 Ramadhin Mukhiya, PW-5 Deo Narain Mukhiya and PW-6 informant Sikandar Mukhiya, it appears that they have unanimously stated that at the time of occurrence Sinki Kumari had gone to the house of the appellant Dinesh Mukhiya to take back her radio and she is missing since then. Though PW-5 Deo Narain Mukhiya has stated in his examination-in-chief that Dinesh Mukhiya had taken radio of Sinki Kumari preceding to occurrence but in para-4 of his cross-examination he has stated that he had not seen the appellant Dinesh Mukhiya taking radio. He vented his ignorance about taking the radio by the appellant on 18.05.2010. Thus from perusal of the testimony of the aforesaid witnesses, it appears that aforesaid witnesses have not seen the appellant Dinesh Mukhiya taking radio from Sinki Kumari preceding to the occurrence and committing the occurrence of rape against her and strangling her to death by the appellants. They have also not divulged about witnessing the deceased entering into the house of the appellant and taking away and dumping her dead body in the paddy field located in Jirogabad by the appellants. Though, informant (PW-6) has stated in Para4 of his cross-examination that Dinesh Mukhiya had taken the radio 4-5 days preceding to the occurrence to play it and the deceased Sinki Kumari had gone to take back the radio at 7 PM before him but he has also not stated about witnessing arrival of Sinki Kumari in the house of the appellant Dinesh Mukhiya. Informant has also not stated about witnessing the occurrence of committing rape against the deceased Sinki Kumari and thereafter strangling her to death by the appellants and taking away and dumping her dead body in the paddy field located in Jirogabad by the appellants. I.O. (PW-7) in Para-17 of his cross-examination has stated that radio was not recovered from the possession of the appellants Dinesh Mukhiya and Harihar Mukhiya. Though the informant (PW-6) has stated in para-20 of his cross-examination that radio was found but he had not handed it over to the police. I.O. (PW-7) in Para-17 of his cross-examination has stated that radio was not recovered from the possession of the appellants Dinesh Mukhiya and Harihar Mukhiya. Though the informant (PW-6) has stated in para-20 of his cross-examination that radio was found but he had not handed it over to the police. From perusal of the aforesaid testimony of the said witnesses, it appears that the prosecution has utterly and miserably failed to substantiate its case that the appellant Dinesh Mukhiya had taken radio from Sinki Kumari for playing 3-4 days preceding to the occurrence and Sinki Kumari had visited the house of the appellant Dinesh Mukhiya to take back her radio, which is said to be the genesis of the occurrence. Thus, the prosecution has utterly and miserably failed to substantiate the aforesaid genesis of the occurrence. 18. From perusal of the record, it appears that PW-1 Birendra Mukhiya happens to be father of the deceased, PW-2 Sanju Devi mother of the deceased, PW-3 Mania Devi grandmother of the deceased, PW-4 Ramadhin Mukhiya grand-father of the deceased, PW-5 Deo Narain Mukhiya cousin grand-father of the deceased and PW-6 informant Sikandar Mukhiya uncle of the deceased. All happen to be family members of the deceased. None of the independent witness of the occurrence as discussed hereinabove has been examined by the prosecution in corroboration of the prosecution case. 19. From perusal of the record and the fardbeyan of the informant, it appears that the occurrence is of 18.05.2010 at 7 PM but fardbeyan of the informant has been recorded after inordinate and abnormal delay of two days i.e. 20.05.2010 at 09:15 PM and moreover record further indicates that on the basis of the aforesaid fardbeyan, F.I.R. was lodged on 20.05.2010 at 09:45 PM, but said F.I.R. was sent to the Court after inordinate delay of two days i.e. on 22.05.2010 and the prosecution has utterly and miserably failed to explain the aforesaid delay in recording the fardbeyan of the informant as well as sending the F.I.R. to the court by ascribing convincing and plausible explanation which creates serious doubt about the credibility and sanctity of the aforesaid fardbeyan and the prosecution case. 20. In the facts and circumstances of the case, we find that it is a case of circumstantial evidence as there is no eye witness of the occurrence. 20. In the facts and circumstances of the case, we find that it is a case of circumstantial evidence as there is no eye witness of the occurrence. But the prosecution has utterly and miserably failed to substantiate the circumstances such as genesis of the occurrence, entering of the deceased in the house of the appellant, taking away either the deceased or her dead body by the appellants, dumping it in the paddy field located in Jirogabad, not recovery of any incriminating article from the house of the appellant, confessional statement of the appellant not leading to recovery, not bringing on record confessional statement allegedly given before punches and villagers and non-examination of punches and villagers in corroboration of giving aforesaid confessional statement by appellant Dinesh Mukhiya. In the case of holding the accused guilty on the basis of circumstantial evidence, the circumstances from which an inference of guilt of accused is sought to be drawn must be cogent and firm. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none-else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. But the prosecution has utterly and miserably failed to substantiate cogent and firm circumstances having definite tendency unerringly pointing towards the guilt of the appellants. 21. Hon’ble Apex Court in Shard Birdhichand Sarda Vs. But the prosecution has utterly and miserably failed to substantiate cogent and firm circumstances having definite tendency unerringly pointing towards the guilt of the appellants. 21. Hon’ble Apex Court in Shard Birdhichand Sarda Vs. State of Maharshtra reported in, (1984) 4 SCC 116 has been pleased to postulate the cardinal principle regarding the appreciation of circumstantial evidence by holding that whenever the case is based on circumstantial evidence, the following features are required to be complied with and proved by cogent evidence: (i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely may be fully established (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty (iii) The circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground from the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 22. Hon’ble Apex Court in Kanhaiya Lal Vs. State of Rajasthan reported in, (2014) 4 SCC 715 has been pleased to rule that the circumstances of last seen together does not by itself necessarily lead to inference that it was accused who committed crime. There must be something more establishing connection between accused and the crime, that points to guilt of accused and none else. Mere non-explanation of being last seen together with deceased person on part of accused, by itself cannot lead to proof of guilt against him. It is further held that where a case rests squarely on circumstantial evidence, reiterated, inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person. Circumstances from which an inference as to guilt of accused is drawn have to be proved beyond reasonable doubt. 23. Circumstances from which an inference as to guilt of accused is drawn have to be proved beyond reasonable doubt. 23. From perusal of the testimony of PW-2 Sanju Devi who happens to be mother of the deceased, it appears that there is animosity between the parties as she has stated in para-2 of her cross-examination that there was dispute with the appellants since before the occurrence. Though animosity cuts both the edge, but in view of not establishing the genesis of the occurrence by the prosecution, no eye witness of the occurrence, non-examination of any independent witness and punches regarding giving confessional statement by the appellant Dinesh Mukhiya before them, not bringing on record the aforesaid confessional statement, confessional statement recorded by police not leading to recovery, abnormal delay in recording the fardbeyan of the informant and sending the F.I.R. to the Court, false implication of the appellants at the hand of the prosecution due to aforesaid animosity cannot be ruled out. 24. In view of discussion of entire evidence, we are of the considered opinion that the prosecution has not been able to establish its case beyond all reasonable doubt and as such by way of extending benefit of doubt, it is desirable to interfere with the judgment of conviction and sentence. 25. Accordingly, the judgment of conviction dated 23.01.2012 and order of sentence dated 25.01.2012 passed in Sessions Trial No. 487 of 2010 (arising out of Andharamath P.S. Case No. 19 of 2010, corresponding to G.R. No. 599 of 2010) by Mr. Shahid Khan, learned Additional Sessions Judge, Fast Track Court-II, Madhubani is, hereby, set aside and the appeal is allowed. 26. Since appellants are in custody and the judgment of conviction and sentence has been set aside, both the appellants namely Dinesh Mukhiya and Harihar Mukhiya are directed to be released forthwith, if not wanted in any other case.