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2019 DIGILAW 2407 (BOM)

Sandeep v. State of Maharashtra

2019-10-18

SWAPNA JOSHI

body2019
JUDGMENT : Swapna Joshi, J. 1. This Appeal has been directed against the judgment and order dated 5th November 2004, delivered by the learned 5th Ad-hoc Addl. Sessions Judge, Amravati in Sessions Trial Case No. 79/2003 convicting the appellant/accused for offence punishable u/s. 376 of the IPC and sentencing him to suffer R.I. for seven years and fine of Rs. 2,000/-, in default of payment of fine, R.I. for six months. 2. The prosecution case, in brief, is as under:-- Prosecutrix-PW 1, who was 16-years old at the time of alleged incident, and the accused were the resident of the same village i.e. Kanzara. The prosecutrix was prosecuting her studies in X standard in Dnyannmata Vidyalaya, Kanzara. On the date of incident i.e. 7.1.2003, as there was school holiday, she did not attend the school. At about 9.00 am, her father PW 4-Niranjan proceeded for his work at Balwadi which was in the same village and two younger brothers of the prosecutrix were at home. At about 3.00 pm, the prosecutrix after having meals, proceeded near the bridge to answer the nature's call. Thereafter while she was returning home, the appellant who was residing in the same locality, came behind her, caught hold and took her in the nearby nullah (drain). The appellant made her to lie down, removed her salwar and knicker and committed sexual intercourse with her. The prosecutrix then tried to raise an alarm however her mouth was gagged by the appellant. On hearing the shouts of the prosecutrix, her father who was at Balwadi rushed to the place of the incident and pushed aside the appellant who was lying on the person of the prosecutrix. There was a minor scuffle between the appellant and PW 4-Niranjan, father of the prosecutrix. After some time, the appellant fled away from the place. The prosecutrix and her father returned home after some time. The prosecutrix went to the house of her uncle. The salwar, knicker and chappal of the prosecutrix were lying at the place of the incident. After about half an hour, the appellant, his father and two other persons assaulted PW 4 at some distance from the house of the prosecutrix, due to which her father sustained injuries. PW 4 then returned home with her younger brother. Meanwhile, the prosecutrix sent her brother to call for her uncle. After about half an hour, the appellant, his father and two other persons assaulted PW 4 at some distance from the house of the prosecutrix, due to which her father sustained injuries. PW 4 then returned home with her younger brother. Meanwhile, the prosecutrix sent her brother to call for her uncle. Accordingly, her uncle and other relatives came to her house between 4.30 and 5.00 pm. The prosecutrix informed them about the incident. Thereafter they all proceeded to the Police Station. The prosecutrix lodged her complaint (Exh. 17). On the basis of her oral report, the offence was registered vide Cr. No. 3/2003. The appellant came to be arrested. The police visited the place of incident and recorded the spot Panchnama. The police took charge of the articles lying on the spot. The prosecutrix was referred for her medical examination. The clothes of the prosecutrix as well as that of the appellant were taken charge. All the seized articles were sent to the CA office for its analysis. The statements of the witnesses were recorded. After completion of investigation charge-sheet was filed in the Court of the learned JMFC at Nandgaon-Khandeshwar. The case was committed to the Court of Sessions. The charge was framed. After recording the evidence and hearing both sides, the appellant was convicted as aforesaid. 3. In order to bring home the guilt of the appellant, the prosecution has examined in all eleven witnesses. The defence of the appellant was of total denial and that as there was a scuffle between the appellant and the father of the prosecutrix at about 3.00 pm or so, the complaint was lodged by the appellant against the father of the prosecutrix at about 5.00 pm and as counterblast, a false case was lodged by the prosecutrix implicating the appellant, at about 9.30 pm and the offence came to be registered accordingly at 11.05 pm. 4. I have heard Shri Anil S. Mardikar, learned senior counsel with Ms. Akshaya Kshirsagar, learned Advocate for the appellant and Mr. Amit Chutke, learned APP for the respondent- State. With their able assistance, I have gone through the record and proceedings of the case. Learned senior counsel vociferously argued that the prosecution has failed to bring on record as to in what chronology the incident had taken place. Akshaya Kshirsagar, learned Advocate for the appellant and Mr. Amit Chutke, learned APP for the respondent- State. With their able assistance, I have gone through the record and proceedings of the case. Learned senior counsel vociferously argued that the prosecution has failed to bring on record as to in what chronology the incident had taken place. It is not properly brought on record by the Investigating Officer whether the incident of rape had taken place first in point of time or the assault made by the complainant to the appellant had taken place. It is further submitted that the age of the prosecutrix as per the oral report is 16-years. However efforts were made by the prosecution to show that the prosecutrix was below the age of 16-years, on the date of incident and the prosecution failed to succeed in the said effort. He further contended that the prosecution relied upon the testimony of the PW 11 -Subhash Bhagawe, Headmaster of the school who has stated that based on the declaration given by the father of the prosecutrix, an entry in the register maintained by the school has been taken. However, the said document is not reliable document and no birth certificate from the Gram Panchayat record has been produced by the prosecution, in order to substantiate its case. He submitted that the prosecution has failed to prove that the prosecutrix was below the age of 16-years at the time of incident and a false case has been concocted against the appellant. He contended that the medical evidence does not support the case of the prosecution at all so much so that the prosecution has failed to establish its case beyond reasonable doubt. 5. Per contra, Mr. Amit Chutke, learned APP supported the impugned judgment and contended that the learned trial Judge has assessed the evidence led by the prosecution witnesses in its right perspective and convicted the appellant. 6. In order to consider the rival contentions of both sides, it would be fruitful to go through the evidence led by the prosecution witnesses, more particularly, the testimony of PW 1-prosecutrix who is the victim of the rape, PW 4-Niranjan, father of the prosecutrix, PW 7-Dr. Radha Choudhary, the Medical Officer who examined the prosecutrix, PW 10-Dr. Amol Dube, Medical Officer who examined the appellant and PW 11-Subhash, who is the headmaster of the School where the prosecutrix was admitted. Radha Choudhary, the Medical Officer who examined the prosecutrix, PW 10-Dr. Amol Dube, Medical Officer who examined the appellant and PW 11-Subhash, who is the headmaster of the School where the prosecutrix was admitted. 7. So far as the age of prosecutrix is concerned, the oral report which is a contemporaneous document relied upon by the prosecution, shows the age of the prosecutrix as 16-years on the date of the lodging of the complaint. PW 1-prosecutrix while deposing before the trial Court stated her age as 16-years. It was put up to her that her age on the date of recording of her evidence was 19 years, however, she denied the same. The evidence of PW 4- Niranjan shows that the date of birth of the prosecutrix as 15.5.1988 i.e. on the date of the alleged incident the age of prosecutrix was 14 years, 7 months and 23 days. The said version of PW 4 is an improvement in his testimony before the Court which is brought on record by the prosecution in the cross-examination of PW 4. The evidence of PW 11-Subhash, who is the in-charge Headmaster of the school, shows that the prosecutrix was the student of his school. She was admitted in the school in first standard and she left the school after passing seventh standard. On the basis of the register maintained by the School, PW 11-Subhash deposed that the entry regarding admission of the prosecutrix was taken in the register on 31.7.1993 and as per the said entry her date of birth is 15.5.1988. It was stated by PW 11-Subhash that her date of birth was recorded in the register maintained by the school on the basis of the declaration given by the father of the prosecutrix. In the cross-examination, PW 11 has admitted that except the declaration no other document regarding the date of birth of the prosecutrix is placed on record by him. He further admitted that at the time of admission, extract of birth register or certificate issued by the doctor or certificate issued by the Gram Panchayat is required to be produced. A careful scrutiny of the testimony of PW 11-Subhash shows that the entry in respect of the birth of the prosecutrix was taken by the School authority on the basis of declaration given by the father of the prosecutrix i.e., PW 4. A careful scrutiny of the testimony of PW 11-Subhash shows that the entry in respect of the birth of the prosecutrix was taken by the School authority on the basis of declaration given by the father of the prosecutrix i.e., PW 4. Apart from declaration, no other document was produced by the father of the prosecutrix, while admitting his daughter in the school. Similarly, the school authority has not asked for any other document, such as, birth certificate of the prosecutrix issued by the Gram Panchayat, an entry in respect of date of birth of the prosecutrix made in the register maintained by the Gram Panchayat while reporting the birth of the prosecutrix. None of the documents were produced by PW 11 in that regard. Thus, simply based on the declaration made by PW 4-Niranjan, the school authority has made the entry in the register maintained by the school entry in respect of date of birth of the prosecutrix. The said evidence of PW 11 in my considered view, is not at all reliable one; so also the entry in the school register which is simply based on the declaration made by PW 4 also cannot be relied upon. Thus, there is no convincing evidence on record to show that the prosecutrix was below the age of 16-years on the date of the alleged incident. 8. Keeping in mind the age of the prosecutrix being not below the age of 16-years on the date of incident, her testimony as well as testimony of her father-PW 4 is to be scrutinized carefully. The evidence of PW 1- prosecutrix depicts that the incident took place on 7.1.2003 at village Kanzara. On the day of the incident her father, as usual, left the house for labour work while her mother was out of station on that day. The prosecutrix was in her house along with her younger brothers since there was holiday to the school. At about 2.30 to 3.00 pm, she went near the bridge for easing herself and while returning back to he house, the appellant came to that place from back side, caught hold and dragged her in mdlah(drain). The appellant made the prosecutrix to lie down, gagged her mouth, removed her salwar and knicker and then forcibly committed sexual intercourse with her. The prosecutrix then made a hue and cry. The appellant made the prosecutrix to lie down, gagged her mouth, removed her salwar and knicker and then forcibly committed sexual intercourse with her. The prosecutrix then made a hue and cry. On hearing the shouts, her father-PW 4 came to that place and removed the appellant from her person. At that time, a scuffle took place between the appellant and her father. The appellant thereafter fled away from that spot. Her salwar and knicker were lying on the spot. After some time, the prosecutrix proceeded to the house of her uncle. Her father went to the field of her uncle to call him. The prosecutrix stated that father was assaulted by the appellant while he was proceeding to the house of his brother. At about 5.00 pm all her relatives collected at her house thereafter her father and the relatives came to the house of her uncle where the prosecutrix was present and took her to the Nadgaon-Khandeshwar Police Station. The prosecutrix then lodged her complaint Exh. 17. According to the prosecutrix after lodging the report immediately police took her to the place of the incident and on the next day, the police sent her to the Government Hospital at Amravati for examination. The police took charge of the Kurta. 9. During the extensive cross-examination of the prosecutrix, it is noticed that the prosecutrix admitted that her mother-Devkabai is not residing with her father at Kanzara; and she is residing with one Madhukar Gedam. The said testimony of the prosecutrix was brought on record by the defence in order to show that the mother of the prosecutrix was not of a good moral character. It was brought on record during the cross-examination of PW 1 that in the month of October, 2002 there was quarrel between one Kundan Bagde who was related to her father and was managing the affairs of the agricultural land with the father of the appellant, as Kundan had transported his sugarcane from the land of father of the appellant, by the tractor. The prosecutrix said that she was not aware about the said aspect. According to PW 1 she was not aware whether her father was also a party to the said quarrel and he is not in good terms with the father of the appellant. The prosecutrix said that she was not aware about the said aspect. According to PW 1 she was not aware whether her father was also a party to the said quarrel and he is not in good terms with the father of the appellant. PW 1, however, admitted that on the day of the incident itself, at about 5.00 pm, appellant had lodged a report against her father and on the basis of the said report offence was registered against her father. The said fact has also been confirmed by Investigating officer in his evidence, which shows that on the date of incident which had allegedly taken place between 2.30 and 3.00 pm, at about 5.00 pm, a report came to be lodged by the appellant against the father of the prosecutrix. A case was put up to the prosecutrix that on the date of the incident, her father assaulted the appellant with the help of sickle and caused head injury and the said incident had taken place between 2.30 and 3.00 pm. 10. The cross-examination of PW 1 shows that the bridge where the incident had taken place was on the road leading to Satargaon from Kanzara and the distance from the said bridge to the village, was about half a kilometre and on both the sides of the road leading to Satargaon from the village, there is a place for easing and the general public used to visit the said place for easing. The said testimony of PW 1 makes amply clear that there was a road leading to Satargaon from Kanzara and the distance from the said bridge to the village was about half a kilometre. So also on both the sides of nullah there are agricultural lands. PW 1 however denied that on the day of the incident, as usual, land owners and labours were working in the field. It was further admitted by PW 1 that Satargaon road remains always busy. The aforesaid admission given by the prosecutrix indicates that the place of incident was near the busy road which was leading to Satargaon from village Kanzara and people used to visit that place for relieving themselves. Although the prosecutrix denied, it appears that the land owners and their labourers work in their fields which were situated on both the sides of the nullah where the alleged incident had taken place. Although the prosecutrix denied, it appears that the land owners and their labourers work in their fields which were situated on both the sides of the nullah where the alleged incident had taken place. Similarly, Satargaon Road must be a busy road, keeping in mind that the alleged incident had taken place during afternoon hours, which was situated near the place of the incident. She also admitted that the place of incident was inside the nullah. According to the prosecutrix, the appellant dragged her for about 10 ft; however it was an improvement in the testimony of the prosecutrix that the appellant took her to the nullah by dragging. The said improvement goes to the root of the prosecution case and creates a serious doubt about the appellant dragging the prosecutrix for a distance of about 10 feet. If at all the prosecutrix was dragged for such a considerably distance, then obviously there should have been some marks of dragging on her body. However, the medical evidence is silent on this aspect. Similarly, a material improvement is pointed out in her testimony to the effect that the appellant forcibly committed sexual intercourse with her. Significantly, the term "forcibly" is missing in the complaint lodged by the prosecution which again creates a serious doubt about the manner in which the incident had taken place. It also creates a doubt whether it was a forcible sexual intercourse committed by the appellant with the prosecutrix. It is not clear as to how the prosecutrix went to her uncle's home alone, after returning to her house, just after the incident. It shows her unnatural conduct. A case was put up to the prosecutrix which she denied stoutly, that the report (Exh. 17) was lodged as a counterblast and the same is lodged at the instance of her father against the appellant, however it appears so. The prosecutrix flatly denied that she has falsely deposed that her salwar and knicker were lying on the spot. If at all the said version of the prosecutrix is to be accepted that after the incident she left the salwar and knicker lying on the spot and proceeded with her father to her house which was at a considerable distance without salwar and knicker is highly improbable, keeping in mind that at the time of the incident the prosecutrix was not below the age of 16 years. The said version of the prosecutrix appears to be doubtful. It is also not clear as to after lodging of the complaint, the prosecutrix went to the place of incident with the police and then she was referred to the hospital for her medical examination on the next day. Thus, on a careful scrutiny of the testimony of PW 1, her testimony does not inspire confidence. 11. The testimony of the father of prosecutrix, PW 4-Niranjan, shows that on the day of incident at about 9.00 am, he had been to the Anganwadi of their village for doing labour work. His wife had gone to village Bhili and his nephew had gone to fetch his wife from that place and, therefore, his daughter i.e. prosecutrix and has two sons were alone in the house. According to him, at about 2.30 pm, he came to his house for taking lunch. As meals were not ready he asked his daughter to prepare chapati, however she stated that she will prepare the chapatis after attending the nature's call. Therefore PW 4 left the house and proceeded towards Anaganwadi. While he was working, he heard the cries and shouts from the nullah. The said shouts were resembling with the voice of his daughter and therefore he went to his house, took his bicycle and proceeded towards the nullah situated at Satargaon road. He parked his bicycle near the bridge and proceeded by walk after covering some distance, he noticed the appellant lying on the person of the prosecutrix. PW 4 saw the salwar and knicker of the prosecutrix lying at some distance. He further noticed that the appellant had pressed the mouth of the prosecutrix with his hand. PW 4 rushed towards the appellant and separated him from the prosecutrix. At that time there was a scuffle between him and the appellant, however, the appellant rescued himself and ran away. PW 4 then took the prosecutrix to their house. Thereafter he proceeded to the house of his cousin brother to consult about the further action. While he was on the way, in the courtyard of the house of one Tarabai Ghodeswar, the appellant, his father, one Sayyed and Sharif assaulted PW 4. They dragged him upto to the pipal tree. The father of appellant threatened PW 4 and abused him. While he was on the way, in the courtyard of the house of one Tarabai Ghodeswar, the appellant, his father, one Sayyed and Sharif assaulted PW 4. They dragged him upto to the pipal tree. The father of appellant threatened PW 4 and abused him. Due to said beating, PW 4 fell down and after 10 to 15 minutes his sons took him to their house. At that time, the prosecutrix had already left for the house of PW 4's brother. Sometimes thereafter Sudhir Meshram, Kundan Bagde, Kamalabai Gajbhiye, Baranbai Meshram, Sarubai Meshram came to his house and thereafter they all proceeded to Nandgaon-Khandeshwar Police Station where her daughter lodged the complaint against the appellant. According to PW 4 the distance between the place of incident and the Anganwadi was about 1 furlong (200 metres). 12. In the cross-examination of PW 4, he emphatically stated that on the next day of lodging the report, the police recorded his statement. It is not clear as to why the statement of PW 4 was not recorded on the same day, when the complaint of the prosecutrix was recorded, although he claimed to be an eye witness to the incident. According to PW 4, he stated that before the police that the appellant committed rape on his daughter. However the said version does not find place in his statement and he has made an improvement in that regard. Various improvements were pointed out in the testimony of PW 4 to the effect that the appellant and others had dragged him to the Pipal tree. It was also an improvement that both of his sons took him to the house from the place where he was allegedly assaulted. It was also an improvement in the testimony of PW 4 that the approximate distance between the place of incident i.e. nullah and Anganwadi was of one furlong (200 metres) and he heard shouts and cry at Anganwadi. The said improvement made by PW 4 goes to the root of the prosecution case and it creates a serious doubt whether PW 4 heard the cries and shouts of his daughter from the place of incident i.e., nullah to Anganwadi where he was working as a labourer and the distance was of one furlong. Thus, it is doubtful whether PW 4 heard the cries of his daughter. Thus, it is doubtful whether PW 4 heard the cries of his daughter. It is also not clear as to why PW 4 did not rush to the place of incident on hearing the cries of his daughter and why he first went to his house and then took his bicycle and then went to the spot. It is also doubtful whether PW 4 saw the appellant lying on the person of the prosecutrix and the appellant had pressed mouth of the prosecutrix and further saw the knicker and salwar of the prosecutrix lying at some distance. The entire testimony of the PW 4 is under shadow of doubt. Interestingly, as per the case of the prosecutrix, the appellant pressed her mouth at the time of the incident and after the actual incident of rape was over she shouted; whereas according to PW 4, he saw the appellant lying on the person of the prosecutrix and had pressed her mouth by one hand, meaning thereby that when PW 4 saw the appellant lying on the person of the prosecutrix, he had pressed her mouth. It is not clear as to how PW 4 heard the cries and shouts of the prosecutrix which she had allegedly made immediately after the incident. According to the prosecutrix, at the time of incident, the appellant had pressed her mouth and therefore there was no question of her raising shouts at that time. It is therefore not clear as to how PW 4 heard her cries and then came on bicycle to the place of the incident from the distance of 200 metres. It is also not clear as to when PW 4 heard the shouts of his daughter why he directly did not rush to the place of the incident which was allegedly at a distance of 200 feet and why he preferred to go back to his house from Anganwadi to take a bicycle and then go to the place of the incident. Thus, the entire testimony of PW 4 is not convincing at all. 13. PW 4 admitted that the criminal case for offence punishable u/s. 324 IPC was filed on the report of the appellant-Sandeep against him in the court of learned JMFC Nandgaon-Khandeshwar. Significantly, PW 4 admitted that the report lodged by the appellant is earlier in point of time to the report filed by the prosecutrix. 13. PW 4 admitted that the criminal case for offence punishable u/s. 324 IPC was filed on the report of the appellant-Sandeep against him in the court of learned JMFC Nandgaon-Khandeshwar. Significantly, PW 4 admitted that the report lodged by the appellant is earlier in point of time to the report filed by the prosecutrix. The said version of PW 4 makes clear that although the alleged incident had taken place between 2.30 and 3.00 pm, the complaint came to be lodged belatedly at 9.30 pm and the report lodged by the appellant against PW 4 u/s. 324 IPC was lodged prior to that. The prosecution has not come up with the true facts of the case and the chronology of the events. The said incident indicates some sort of rivalry between PW 4 and the family of the appellant. PW 4 also denied that on the date of the incident at about 2.30 to 3.00 pm he caused head injury to the appellant by means of a sickle and as a counterblast to the said report, the false report was lodged by his daughter against the appellant. Thus, the testimony of PW 4 does not inspire confidence at all that he had witnessed the incident of rape as such on hearing the shouts of his daughter. 14. So far as the medical evidence is concerned, the testimony of PW 7-Radha Choudhary. shows that on examination of the prosecutrix on 8.1.2003 i.e. on the next day of incident at about 4.00 pm, she found scratch marks on the upper part of her left breast. There was no injury on external genital; her secondary character were well developed. PW 7 stated that hymen of the prosecutrix was torn, admitting little finger easily. According to PW 7, hymen can be torn due to forceful sexual intercourse but not in every case. PW 7 issued medical certificate at Exh. 41. The cross-examination of PW 7 shows that there was only one scratch and she had not mentioned the age of injury of the said scratch and the breast of the prosecutrix, in the certificate. Thus, PW 7 failed to state the age of the said scratch which was found on the breast of the prosecutrix. 41. The cross-examination of PW 7 shows that there was only one scratch and she had not mentioned the age of injury of the said scratch and the breast of the prosecutrix, in the certificate. Thus, PW 7 failed to state the age of the said scratch which was found on the breast of the prosecutrix. As the age of the said scratch mark was not stated by the Medical Officer, it cannot be said that the said scratch was caused at the time of alleged incident. The Medical Officer stated in the cross-examination that there are various reasons due to which hymen can be torn. PW 7 stated that if affected part of the body comes in contact with the nail, the scratch mark is possible. According to her, on the basis of the examination of the prosecutrix, no definite opinion about rape can be given. Thus, the testimony of PW 7 does not throw any light on the aspect of the forceful sexual intercourse allegedly committed by the appellant. The Medical Officer has failed to state whether there was a fresh injury to the hymen of the prosecutrix. It is worthwhile to note that PW 7 did not notice any redness or tenderness on the private part of the prosecutrix. PW 7 failed to mention as to the direction of the hymenal tear. As PW 7 did not notice any fresh injury to the hymen of the prosecutrix, therefore, in the backdrop of the medical evidence, one cannot come to the conclusion whether the prosecutrix was sexually assaulted at that point of time. It is pertinent to note that according to the prosecutrix she was dragged for ten feet in the nullah, however, no injury on the breast of the prosecutrix was noticed by the Medical Officer. Therefore, the case of the prosecutrix that she was dragged for a considerable distance by the appellant in the nullah is not found to be truthful. 15. As far as the CA report is concerned, it shows semen stains on the full pant and underwear of the appellant. It also shows human blood stains on the shirt, full pant and underwear of the appellant. Finding of blood-stains on the clothes of appellant is possible due to assault on him by PW 4 as complaint was lodged by the appellant against PW 4. It also shows human blood stains on the shirt, full pant and underwear of the appellant. Finding of blood-stains on the clothes of appellant is possible due to assault on him by PW 4 as complaint was lodged by the appellant against PW 4. So far as the medial evidence is concerned, no injuries were found on the private part of the appellant. The CA report does not throw any light on the aspect of group of blood on those articles. 16. The overall assessment of the evidence on record shows that the prosecutrix was not below the age of 16 years at the time of incident and there is no convincing evidence on record that on the day of the incident the appellant had forcibly committed sexual intercourse with the prosecutrix. It appears from the evidence on record that the prosecutrix went to the place of incident on the pretext of easing and the appellant met her at that place. As her father PW 4 wanted to have lunch and he did not find her in his house for quite some time, he must have gone to search her at the place of incident where people used to go for easing and he must have found his daughter with the appellant in a compromising position so also he noticed salwar and knicker of the victim near the place of incident. It appears that therefore PW 4 after having discussed with his relatives proceeded with the prosecutrix to lodge the complaint. The prosecution has thus failed to prove its case beyond reasonable doubt. The learned trial Judge should have properly assessed the evidence led by the prosecution witnesses. In view of the facts and circumstances, an interference at the hands of this Court in the impugned judgment, is warranted. Hence, the order. ORDER: (i) Criminal Appeal No. 110/2007 is allowed. (ii) The judgment and order passed by learned 5th Ad-hoc Additional Sessions Judge, Amravati in Sessions Trial Case No. 79/2003 on 5th November, 2004 convicting the appellant/accused, is set aside and he is acquitted of the offence for which he was convicted. (iii) The bail bonds of the appellant shall stand cancelled. (iv) Fine amount if paid by the appellant/accused, be returned to him.