ANJANAPPA Vs STATE OF KARNATAKA
Bench: RANJANA PRAKASH DESAI,MADAN B. LOKUR
Case number: Crl.A. No.-001223-001223 / 2008
Diary number: 32746 / 2007
Advocates: DINESH KUMAR GARG Vs
ANITHA SHENOY
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1223 OF 2008
ANJANAPPA …Appellant
Versus
STATE OF KARNATAKA …Respondent
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. This appeal, once again like many other appeals,
presents before us the plight of a woman who is burnt to
death by her husband. Sadly, her parents turned hostile in
the court. This raises the serious question of witness
protection which is not addressed as yet.
2. Deceased Gowramma was married to the appellant on
17/04/1987. It is the prosecution case that at the time of
marriage the appellant demanded dowry and he received
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Rs.5,000/-, a motor bike, one gold chain and clothes from
Hanumantharayappa, the father of Gowramma. After
marriage the appellant was harassing the deceased for
bringing more dowry from her parents. The harassment was
both physical and mental. The appellant had caused burn
injuries on the thighs of Gowramma to compel her to bring
more dowry. He had kept one Puttamma as his mistress,
which caused mental agony to Gowramma. On 17/10/1991
there was a quarrel between the appellant and Gowramma
on the question of transferring Gowramma’s property in the
appellant’s name. At about 6.00 p.m. the appellant poured
kerosene on her and set her on fire. Gowramma was taken
to the Victoria hospital. At about 7.00 p.m. PW-4 Dr.
Parthasarathy admitted her for treatment of burn injuries.
When PW-4 Dr. Parthasarathy asked her about the burn
injuries she told him that on the same day at about 6.30
p.m. the appellant had poured kerosene on her and set her
on fire. He recorded the said occurrence in the Accident
Register. Gowramma’s statement recorded by him is at
Exhibit-P16(b). He reported the matter to the police. PW-5
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HC Ramachari of Vijayanagara Police Station came to the
hospital on 17/10/1991 at about 10.30 p.m. and sought
permission to record the statement of Gowramma from PW-4
Dr. Parthasarathy. As Gowramma was in a position to give
statement PW-4 Dr. Parthasarathy permitted PW-5 HC
Ramachari to obtain her statement. Thereafter, PW-5 HC
Ramachari recorded her statement in Burns Ward, which is
Exhibit P-19. She stated that her husband had poured
kerosene on her and set her on fire. PW-4 Dr. Parthasarathy
put an endorsement on the said statement and signed it.
After recording the statement of Gowramma, PW-5 HC
Ramachari presented the memo Exhibit-P18 and statement
Exhibit-P19 before the Station House Officer. PW-6 S.
Nanjundappa, who was at the relevant time, working as ASI,
Vijayanagara Police Station, recorded the FIR at about 11.30
p.m. on 17/10/1991 on the basis of Gowramma’s statement
Exhibit-P19. The appellant came to be arrested and charged
for offences under Sections 3 and 6 of the Dowry Prohibition
Act, 1961 and under Sections 498A and 302 of the IPC.
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3. The prosecution examined eight witnesses. Apart from
the police witnesses and the doctor, the prosecution
examined PW-2 Chikkaeeramma, mother of Gowramma and
PW-3 Hanumantharayappa, father of Gowramma.
4. The trial court acquitted the appellant. The trial court
inter alia held that the dying declaration could not be relied
upon because the doctor has not made any endorsement as
to whether the deceased was in a fit condition to make a
statement. The trial court held that the deceased was given
sedatives, therefore, in all probability she was not in a fit
condition to make a dying declaration. In the opinion of the
trial court it is doubtful whether the doctor was present when
the dying declaration was being recorded. The fact that the
parents of the deceased did not support the prosecution
case weighed with the trial court.
5. The State of Karnataka carried an appeal to the High
Court. The High Court by the impugned order set aside the
order of acquittal, convicted the appellant under Section 304
Part-II of the IPC and sentenced him to undergo RI for six
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years and to pay a fine of Rs.1,000/-, in default, to undergo
further sentence of three months. The said judgment and
order is challenged in this appeal.
6. We have heard learned counsel for the parties. We
have read written submissions filed on behalf of the
appellant. Mr.Shekhar Devasa, learned counsel for the
appellant submitted that the prosecution case that the
appellant poured kerosene on the deceased and set her on
fire is not supported by the parents of deceased Gowramma.
They stated that the death of Gowramma was accidental.
This affects the veracity of the prosecution case. Counsel
submitted that the dying declaration of deceased
Gowramma cannot be relied upon because PW-4 Dr.
Parthasarathy has stated that he had given sedatives to the
deceased. The deceased, therefore, could not have been in
a fit condition to make a dying declaration. Besides, the
doctor has not made any endorsement to that effect on the
dying declaration. The doctor has not stated that kerosene
smell was emanating from the body of the deceased. This is
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also not mentioned in Exhibits P16, 17 and 19. There is a
serious doubt about the doctor’s presence when the dying
declaration was being recorded. Counsel submitted that in
the circumstances the dying declaration must be rejected.
In support of this submission he relied on Nallapati Sivaiah
v. Sub-Div. Officer, Guntur A.P. 1 , Mehiboobasab
Abbasabi Nadaf v. State of Karnataka 2 , Rasheed
Beg and ors. v. State of M.P. 3 and Kake Singh @
Surendra Singh v. State of M.P. 4 .
7. Counsel submitted that there is a delay in recording
FIR. Counsel further submitted that the FIR was recorded at
10.30 p.m. on 17/10/1991. But, it reached the Magistrate at
4.30 p.m. on 18/10/1991. This delay casts a shadow of
doubt on the FIR. In this connection he relied on Bijoy
Singh and Anr. v. State of Bihar 5 and Meharaj Singh
v. State of U.P. 6 . Counsel further submitted that motive
is not proved. There is also discrepancy in the timing of the
1 (2007) 15 SCC 465 2 (2007)13 SCC 112 3 (1974) 4 SCC 264 4 (1981) Suppl. SCC 25 5 (2002) 9 SCC 147 6 (1994) 5 SCC 188
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dying declaration. Counsel submitted that the conviction of
the appellant under Section 304 Part-II of the IPC is not
maintainable as his case does not come within the purview
of Section 300 of the IPC. It, therefore, cannot fall in the
exceptions thereto. Besides, no reasons are assigned for
convicting the appellant under Section 304 Part-II of the IPC
which renders the order of conviction unsustainable. In this
connection he relied on State of U.P. v. Virendra
Prasad 7 . Counsel submitted that in the circumstances the
impugned judgment and order deserves to be set aside.
8. Ms. Anita Shenoy, learned counsel for the State of
Karnataka, on the other hand, submitted that parents of the
deceased were won over by the appellant. However, the
prosecution story is established by the independent
evidence of PW-4 Dr. Parthasarathy and PW-5 HC Ramachari,
who have deposed about the dying declaration of the
deceased. In her dying declaration the deceased has
implicated the appellant. Counsel submitted that the dying
7 (2004) 9 SCC 37
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declaration inspires confidence and, therefore, the appeal
deserves to be dismissed.
9. It is well settled that an order of acquittal is not to be
set aside lightly. If the view taken by the trial court is a
reasonably possible view, it is not to be disturbed. If two
views are possible and if the view taken by the trial court is a
reasonably possible view, then the appellate court should
not disturb it just because it feels that another view of the
matter is possible. However, an order of acquittal will have
to be disturbed if it is perverse. We have examined the trial
court’s order of acquittal in light of above principles. We are
of the considered opinion that the High Court was justified in
setting it aside as it is perverse.
10. What has weighed with the trial court is the fact that
the parents have turned hostile. They came out with a story
which even the appellant did not have in mind. He merely
denied the prosecution story. The parents stated that the
deceased was heating water on stove. She caught fire
accidentally and sustained burn injuries. If this was true, the
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appellant would have stated so in his statement recorded
under Section 313 of the Code of Criminal Procedure (“the
code”). We have perused the evidence of the parents. We
have no doubt that they were either won over by the
appellant or pressurized into supporting the appellant. Their
evidence is a tissue of lies. In any case, even if it is
obliterated and kept out of consideration, there is sufficient
other evidence on record to establish the appellant’s guilt.
11. PW-4 Dr. Parthasarathy is an independent witness. He
stated that on 17/10/1991 at 7.00 p.m. he admitted
deceased Gowramma in the Victoria Hospital. Her husband
and mother had accompanied her. On a query made by him,
she told him that on the same day at 6.30 p.m. the appellant
had poured kerosene on her and set her on fire. He, then,
recorded the occurrence in the Accident Register. The
relevant pages of the Accident Register are on record at
Exhibit-P16(a). The statement of the deceased is at Exhibit-
P16(b) and the signature of the witnesses is at Exhibit-P(c).
According to PW-4 Dr. Parthasarathy, Gowramma had
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received 34% burn injuries. Exhibit-P17 is the case sheet of
Gowramma. He stated that Gowramma died on 21/10/1991
at 7.30 p.m. He reported the case to the police vide Memo
dated 17/10/1991, which is at Exhibit-P18. PW-4 Dr.
Parthasarathy further stated that at 11.00 p.m. on the same
day PW-5 HC Ramachari of Vijayanagara Police Station came
to the hospital and sought permission to record Gowramma’s
statement. As Gowramma was in a position to give
statement he permitted PW-5 HC Ramachari to record her
statement. Thereafter, PW-5 HC Ramachari recorded
Gowramma’s statement in Burns Ward. PW-4 Dr.
Parthasarathy reiterated that even at that time Gowramma
repeated the story that her husband poured kerosene on her
and set her on fire. He stated that he made endorsement on
that statement. The said statement is at Exhibit-19, the
endorsement is at Exhibit-P19(a) and his signature is at
Exhibit-P19(b).
12. PW-4 Dr. Parthasarathy’s cross-examination has not
yielded any material which could be said to be favourable to
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the defence. In the cross-examination he stated that on
17/10/1991 he was on duty from 2.00 p.m. to 8.00 p.m.
After he attended the last patient at 8.00 p.m. another
doctor relieved him. He added that after 8.00 p.m. he was
working in the ward. He stated that till morning of
18/10/1991 he was on duty in the Burns Ward. He stated
that Gowramma was admitted in Casualty Ward. He advised
that she should be taken to Burns Ward but before sending
her to Burns Ward he recorded her statement. He further
stated that he started Gowramma’s treatment in Burns
Ward. He gave her sedatives but he has categorically
denied the suggestion that when he recorded the statement
of Gowramma she was not in a position to give statement.
He denied the suggestion that she was not conscious. This
shows that when Gowramma gave statement she was not
under the effect of sedatives.
13. Evidence of PW-4 Dr. Parthasarathy inspires confidence.
There is no reason why he should make-up a story. There is
nothing on record to show that he harboured any grudge
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against the appellant. He is an independent witness who
has given his evidence in a forthright manner. His evidence
establishes to the hilt that Gowramma was in a fit mental
condition to make a statement and she implicated her
husband. He stated that he made an endorsement on the
Gowramma’s statement recorded by PW-5 HC Ramachari.
The High Court has noted that PW-4 Dr. Parthasarathy has
made endorsement on Exhibit-P19 that Gowramma was in a
fit condition to make a statement. The High Court has also
noted that in Exhibit-17, which is the case sheet of
Gowramma, it is stated that she was conscious. But,
assuming he has not made any endorsement on
Gowramma’s dying declaration that she was in a fit state of
mind to make a statement that does not affect the credibility
of the prosecution story. He stated on oath in the court that
Gowramma was in a position to give statement and,
therefore, he permitted PW-5 HC Ramachari to record her
statement. An independent professional like PW-4 Dr.
Parthasarathy must be trusted when he makes such a
categorical statement with a sense of responsibility.
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Moreover, in Laxman v. State of Maharashtra 8 this
Court has made it clear that certification by the doctor about
the fitness of the declarant’s mind is a rule of caution. But, if
the doctor certifies that the patient was conscious, but does
not certify that he was in a fit state of mind, the dying
declaration is not liable to be rejected if the Magistrate who
records the statement deposes about the fit state of mind of
the declarant. That would be sufficient to give the dying
declaration legal acceptability. On the same analogy once
the doctor who examined the deceased, himself states that
the deceased was in a position to make a statement and that
she was conscious, absence of his endorsement on the
statement to that effect is of no consequence. Besides, PW-
4 Dr. Parthasarathy stated that Gowramma had received
34% burns. She died about five days after the incident.
Therefore, it is not possible to hold that she could not have
made any dying declaration. It is argued that PW-4 Dr.
Parthasarathy’s presence in the hospital is doubtful. It is
true that PW-4 Dr. Parthasarathy stated that he was relieved
8 AIR 2002 SC 2973
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from Emergency Ward at 8.00 p.m. But, he has clarified that
he was in Burns Ward till morning of 18/10/1991. There is no
reason to doubt his statement.
14. PW-5 HC Ramachari has corroborated PW-4 Dr.
Parthasarathy. He stated that on 17/10/1991 when he
received the information he went to the Victoria Hospital.
He requested PW-4 Dr. Parthasarathy to allow him to record
the statement of Gowramma. PW-4 Dr. Parthasarathy told
him that he could record her statement and accompanied
him to Burns Ward. He found that Gowramma was in a
position to talk. He, then, recorded her statement which is
at Exhibit-P19. He further stated that Gowramma told him
that at 6.00 p.m. the appellant demanded that house
property should be transferred to his name and then he
poured kerosene on her and set her on fire. He, then,
presented Memo Exhibit-P18 to the Station House Officer.
Thus, evidence of PW-4 Dr. Parthasarathy is fully
corroborated by this witness. We have no hesitation to
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record that both these witnesses are truthful and the trial
court erred in rejecting their evidence.
15. As we have already noted, PW-2 Chikkaeeramma and
PW-3 Hanumantharayappa have turned hostile. It is
apparent that they have tried to help the appellant. In that
effort they have come out with the accidental death theory
which was not even urged by the appellant. The appellant
could have very easily come out with it in his statement
recorded under Section 313 of the Code. PW-2
Chikkaeeramma and PW-3 Hanumantharayappa are,
therefore, completely exposed. It is sad that even parents
did not stand by their daughter. We do not understand how
a woman, particularly a mother, turned her back on the
daughter. Possibly these witnesses were bought over by the
appellant. Such conduct displays greed and lack of
compassion. If they were threatened by the appellant and
were forced to depose in his favour it is a sad reflection on
our system which leaves witnesses unprotected. The
reasons why witnesses so frequently turn hostile need to be
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ascertained. There is no witness protection plan in place. In
Zahira Habibullah Sheikh (5) v. State of Gujarat 9
this Court spoke about importance of witnesses and their
protection. The relevant paragraphs read as under:
“ “Witnesses” as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle the truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression
9 (2006) 3 SCC 374
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and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery.
… … … … … …
The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed… … ….”
We share the above sentiments. Unless the witnesses
are protected the rise in unmerited acquittals cannot be
checked. It is unfortunate that this important issue has not
received necessary attention.
16. In any case, the trial court should have seen through
the insincerity and dishonesty of PW-2 Chikkaeeramma and
PW-3 Hanumantharayappa and having regard to the
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independent evidence of PW-4 Dr. Parthasarathy, which is
corroborated by the evidence of PW-5 HC Ramachari the trial
court should have held that the deceased was in a fit mental
condition to make a dying declaration and, therefore, her
dying declaration can be relied upon.
17. It is well settled that a conviction can be based on a
dying declaration recorded properly when the declarant is in
a fit mental condition to make it. It should be truthful and
voluntary. All these tests are satisfied in the present case.
Judgments on which reliance is placed by the appellant’s
counsel are not applicable to the case on hand. In
Nallapati the medical evidence on record and other
attendant circumstances were altogether ignored and dying
declaration was relied upon. In those circumstances this
Court while reiterating its view in Laxman rejected the dying
declaration in the peculiar facts of the case. In
Mehiboobasab the deceased wife had made four dying
declarations in which she had taken contradictory stands.
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This Court was primarily dealing with inconsistent dying
declarations. While observing that a conviction can
indisputably be based on a dying declaration if it is
voluntarily and truthfully made this Court set aside the
conviction based on the dying declarations on the ground of
their inconsistency. Inconsistency in dying declaration is not
a ground of attack in this case. In any case, there is
consistency between the statement of Gowramma recorded
by PW-4 Dr. Parthasarathy, which is at Exhibit-P16(b), the
history recorded in Gowramma’s case sheet, which is
Exhibit-P17 and statement of Gowramma recorded by PW-5
HC Ramachari, which is at Exhibit-P19. This judgment is,
therefore, not applicable to the present case. Rasheed Beg
also turns on its own facts. There in the second dying
declaration two additional names were added. This Court
found it not safe to rely on the dying declarations. This
judgment must be restricted to its own facts and has no
application to the present case. In Kake Singh a good part
of the brain of the deceased was burnt. The doctor had not
categorically stated that the deceased was conscious when
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he made the dying declaration. Hence, no reliance was
placed on it. In the present case the doctor has categorically
stated that the deceased was in a position to make a
statement. No parallel can, therefore, be drawn from Kake
Singh. The doctor’s evidence which is supported by the
evidence of PW-5 HC Ramachari and other attendant
circumstances establishes that the dying declaration of
Gowramma is truthful and it was voluntarily made by her
when she was in a fit state of mind.
18. There is also no substance in the submission that there
is no motive. The appellant wanted the property standing in
the name of the deceased to be transferred to his name,
which the deceased was not prepared to do. There is no
reason to disbelieve PW-5 HC Ramachari on this aspect.
19. Besides, the conduct of the appellant speaks volumes.
He was absconding and could be arrested only on
19/02/1992. Moreover, in his statement recorded under
Section 313 of the Code he has not explained how the
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deceased received burn injuries. He did not set up the
defence of alibi. It was obligatory on him to explain how the
deceased received burn injuries in his house. His silence on
this aspect gives rise to an adverse inference against him. It
forms a link in the chain of circumstances which point to his
guilt.
20. Minor discrepancy in the time of recording of dying
declaration creates no dent in the prosecution story which is,
otherwise, substantiated by reliable evidence. Certain
documents like inquest panchanama and post-mortem notes
do not state that kerosene smell was emanating from the
body of Gowramma. When there is overwhelming evidence
on record to establish that kerosene was poured on
Gowramma and she was set on fire, it is absurd to argue that
the prosecution case should be disbelieved because it is not
mentioned in certain documents that kerosene smell was
emanating from her body.
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21. The submission that there is delay in lodging the FIR
must be rejected. PW-5 HC Ramachari recorded the dying
declaration at about 10.30 p.m. on 17/10/1991. He, then,
presented Memo Exhibit-P18 to the Station House Officer.
Thereafter, PW-6 ASI S. Nanjudappa of Vijayanagara Police
Station recorded the FIR at about 11.30 p.m. In the facts of
this case, we find that there is no delay in recording the FIR.
Hence, it is not necessary to refer to Meharaj Singh which
is relied upon on this aspect.
22. Similarly, we find that there is no unexplained delay in
forwarding FIR to the Magistrate. FIR was recorded at about
11.30 p.m. on 17/10/1991. PW-6 ASI S Nanjudappa has
explained that since the constable was going to the Court on
the next day, he gave the FIR to him on the next day i.e.
18/10/1991 and it reached the Magistrate at about 4.30 p.m.
on 18/10/1991. In the facts of this case this time lag can
hardly be described as delay and, in any case, acceptable
explanation is offered by PW-6 ASI S Nanjudappa. It is,
therefore, not necessary to refer to Bijoy Singh where this
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Court was dealing with a case where FIR was registered on
25/08/1991 at about 2.30 a.m. and copy thereof was
received by the Magistrate on 27/08/1991. It is pertinent to
note that even in that case this Court observed that sending
copy of the special report to the Magistrate under Section
157 of the Code is the only external check on the working of
the police agency imposed by law which is to be strictly
followed. But, that delay by itself does not render the
prosecution case doubtful. If the delay is reasonably
explained no adverse inference can be drawn against the
prosecution.
23. In the ultimate analysis, therefore, we are of the view
that the High Court was perfectly justified in interfering with
the trial court’s order. The acquittal of the appellant was
wrongly recorded. The High Court, however, adopted a
kindly approach and convicted the appellant under Section
304 Part-II of the IPC and sentenced him to six years RI
because the incident is of the year 1991. Surprisingly, the
appellant has made a grievance about this and stated that
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the appellant’s case does not fall under Section 300 of the
IPC and, therefore, it cannot fall under any of its exceptions
and that the High Court has not assigned any reasons for
convicting the appellant under Section 304 Part-II. This
submission deserves to be rejected. Besides, the High Court
has given reasons. So, it is wrong to say that no reasons are
assigned by the High Court. Since the State has not
approached this Court with a grievance that the sentence
awarded is too low and should be enhanced, we refrain from
commenting on this argument. Judgment of this Court in
State of U.P. v. Virendra Prasad 10 is not at all applicable
to this case and hence, it is not necessary to discuss it. The
High Court was merciful. In the absence of State appeal, at
this distance of time, we are inclined to simply dismiss the
appeal. The appeal is, therefore, dismissed. The appellant
is on bail. His bail bonds stand cancelled. He shall surrender
before the concerned court.
.…………………………..J. 10 (2004) 9 SCC 37
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(Ranjana Prakash
Desai)
.…………………………..J. (Madan B. Lokur)
New Delhi; November 12, 2013.
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