State of Orissa vs Susanta Kumar Dey and Another <BR> Magu Das Vs The State

P.K. Mohanti, J.—This common judgment will govern all the three appeals which arise out of a judgment of the learned additional Sessions judge of Cuttack.

Nine accused persons were placed on trial for an offence u/s 396 of the Indian Penal Code. After trial the learned Sessions Judge convicted accused Sridhar Pradhan and Magu Das and sentenced each of them to imprisonment for life. The remaining seven accused persons were acquitted. Criminal Appeals Nos. 102 and 103 of 1975 have been preferred by the accused Magu Das and Sridhar Pradhan respectively against their convictions and sentences. The State in its turn has brought Government Appeal No 70 of 1975 challenging the acquittal of the accused Susanta Kumar Dey and Bagu alias Brahmananda Biswal. There is no appeal by the State in regard to the acquittal of the other five accused persons. Thus the order of acquittal so far as the other five accused persons are concerned stands final and conclusive.

The case for the prosecution, as it emerges from the evidence placed before the trial Court, is that the nine accused persons conspired together to loot the house of P.W. 1 Bipra Palei, a resident of Gandhipalli in the city of Cuttack. On the night of 18-6-1974 at about 11. 30 p.m. they raided his house, being armed with dangerous weapons like pistol, dagger, knife and lathi. It is alleged that three of the dacoits entered the house of P.W. 1, committed assault on him and looted a cash of Rs. 270/-. a pair of silver Paunji and a pair of gold ear-rings. while the others mounted guard outside, on hearing the hulla raised by P.W. 1, his neighbours ran towards the spot. The accused Susanta fired a pistol as a result of which one Dharanidhar Sahu died at the spot while others namely P.W. 15 Radhasyam Pradhan and one Rusia Bhoi, were injured. After the dacoits left, the spot P.W. 1 lodged F.I.R. at about 2 p.m. in the night at Cuttack Sadar Police Station. The Officer-in-charge of the Police Station (P.W. 18) visited the spot and recorded the statements of witnesses. He sent the injured Rusia Bhoi to the S.C.B. Medical College Hospital. At 7 a. m. he held inquest over the dead body and despatched it for post-mortem examination. He found eleven empty catridges, one fired bullet and one magazine lying near the spot and seized the same under the seizure list. Ext. 14. He also seized a bamboo lathi a -cycle chain and a key from the spot under the seizure list- Ext. 19. Then the police began their investigation and search for the culprits and the stolen articles. This process took some time. No stolen article could be recovered. Accused Susanta was arrested by the Sub-Inspector of Police, Mangalabag Police Station (P.W. 17) on 27-7-1974 and the pistol (M.O.V) along with some live cartridges, two magazines and one empty cartridge were seized from his possession. Accused Sridhar was arrested on 11-8-1974, He made a judicial confession before the Magistrate (P.W. 10) on 13-8-1974 implicating himself as well as some of his co-accused persons. Accused Magu Das was arrested on 14-8-1974. The accused persons were put to T. I. Parade on 2-9-1974. P.W. 1 Bipra Palei identified the accused Magu Das, P.W. 6 Sankar Sahu identified the accused Bran mananda Swain and Bagu alias Brahmananda Biswal. After due investigation all the nine accused persons were charge-sheeted u/s 396, Indian Penal Code.

At the trial, the accused persons denied the charge and pleaded innocence. Accused Susanta denied recovery of the pistol and the cartridges etc. from his possession and contended that the case was foisted against him by P.W. 17 out of previous grudge. The plea of accused Sridhar Pradhan was that he made the confession out of police torture.

It cannot be disputed and indeed is not disputed that the house of P.W. 1 was raided on that night and the raiders removed the cash and jewellery after committing assault on him and one person died and two others were injured as a result of pistol firing by one of the culprits.

In order to prove the participation of the accused persons in the crime, prosecution relied mainly on the following items of evidence:

(i) netracted judicial confession of the accused Sridhar Pradhan,

(ii) identification evidence of P.Ws 1 and 6,

(iii) recovery of the pistol and cartridges etc. from accused Susanta and the seizure of fired bullets, empty catridges and magazines from the spot.

Broadly speaking, the prosecution succeeds or fails on the ability of the evidence of P.Ws. 1 and 6 to stand careful scrutiny, and satisfy the judicial conscience of the Court, particularly in regard to the identification of the participants in the crime.

Before dealing with the cases of individual accused, it will be worthwhile to see whether the retracted judicial confession of the accused Sridhar Pradhan is true and voluntary. It is well settled that a confession, if voluntarily and truthfully made, is an efficacious; proof of guilt against the maker of the confession. When the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded u/s 154 Code of Criminal Procedure, the Court must apply a double test:

(1) whether the confession was perfectly voluntary?

(2) If so, whether it is true and trustworthy?

Satisfaction of the first test is a sine qua non of its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must, before acting upon toe confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession, may be indicated. The Court should carefully examine the confession and compare it with the rest of the evidence in the light of the surrounding circumstance and probabilities of the case. If no such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test - Vide Shankaria v. State of Rajasthan AIR 1978 S.C. 1248.

The confession of a co-accused cannot, however, be used as a substantive evidence in the sense that a conviction on that alone can stand. u/s 30 of the Evidence Act the Court may "take into consideration" the confession of a co-accused. The confession can be used only in support of other evidence- and cannot be made the foundation of a conviction. If there is no other evidence, and if the other evidence in the case is insufficient to establish a prima facie case against the accused, the confession must be excluded from consideration. The confession cannot be added to supplement evidence otherwise insufficient and in no case can it be used to fill a gap in the prosecution evidence. In the case of Haroon Haji Abdulla Vs. State of Maharashtra, , the Court held that a confession intended to be used against a co. accused stands on a lower level than accomplice evidence because the latter is at least tested by cross-examination whilst the former is not. Their Lordships reiterated the view expressed earlier in Nathu Vs. State of Uttar Pradesh, , that confessions of co-accused are not evidence but if there is other evidence in which a conviction can be based, they can be referred to as lending some assurance to the verdict. In Mohd. Husain Umar Kochra etc. Vs. K.S. Dalipsinghji and Another etc., their Lordships laid down that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction.

The confessional statement (Ext. 7) was recorded by a Sub-Divisional Judicial Magistrate who has been examined as P.W. 10. His evidence clearly establishes the voluntary nature of the confession. The accused was produced before him on 12-8-1974 when he disclosed his identity and explained to him that he was not bound to make any confession and that any confession made by him would be user as evidence against him. Then the accused was remanded to jail custody till the next date for cool reflection. On the next day, that is 13.8.1974 at about 3.30 p.m. the accused was produced before the Magistrate when he again disclosed his identity and repeated the warnings. The accused was also given 15 minutes time for cool reflection in the Court room. Thus after observing all the formalities the Magistrate recorded the confession when he was satisfied that the accused was going to make the statement voluntarily. The accused did not deny the factum of making the confession. His plea was that he made the confession out of police torture. The confession is a long narrative of facts and contains a wealth of details. It gives us the impression that it was not extorted from him. During his examination in Court the accused stated that some police officers were present in plain dress inside the Court hall of P.W. 10 and some others were present on the Court verandah and they threatened him that unless he made the confession as directed by them he would be subjected to torture. Accordingly he contended that he made the confession as tutored by the police. The investigating officer (P.W. 18) denied all these allegations. He also denied the suggestion that he had deputed his subordinate officers to remain present in Court in plain dress at the time of recording of the confession. It is difficult to accept the bald plea of the accused that he made the confession under threat and coercion. The Court below was, therefore, justified in rejecting the plea set up by the accused.

The accused admitted in the confessional statement that he along with some of his co-accused persons conspired to commit dacoity in the house of P.W. 1 and they removed cash and jewellery from his house on the night of occurrence. He admitted that he had gone to the spot being armed with a lathi. He also admitted that he took a share out of the stolen cash. He further stated that a pistol was fired by accused Susanta when the residents of the locality ran towards the spot on hearing the hulla raised by a man who came with a lantern. The above statements find corroboration from the evidence of P.Ws. 1 to 4, 6 and 15 who deposed about the commission of dacoity, the firing of pistol by one of the dacoits and the death of Dharanidhar Sahu by gun shot injury. The evidence of P.W. 6 was that when he was going with a lantern to sleep in a shop, the culprits surrounded him. He further stated that he raised an alarm and when the villagers came running, one of the culprits fired a pistol, P.W. 15 Radhashyam Pradhan stated that he sustained a bleeding injury as a result of the firing a pistol by one of the miscreants. The doctor (P.W. 7) who conducted autopsy over the dead body of Dharnidhar Sahu opined that the death was due to shock and haemorrhage resulting from the bullet injury. He extracted a bullet (M.O.I.) from the dead body of the deceased and handed over the same to the police. We are, therefore, satisfied that the confession, though retracted, is fully believable inasmuch as it has been corroborated in material particulars by witnesses whose disinterestedness is beyond question.

Since all the alleged culprits were strangers to the prosecution witness, the crucial question is one of identification of the accused. The accused persons have impugned the identification parade as a mere force enacted by the police. Some of the accused persons took the plea that they were shown to the prosecution witnesses earlier when they appeared in Court and contended that no credence could be given to the identification made by the whiteness at the parade. On a review of the evidence we are of the opinion that the identification parade was conducted in a very impartial manner. The Judicial Magistrate who had conducted the parade has been examined as P.W. 16. He has given details as to the procedure followed by him for holding the parade. The parade was arranged in the Cuttack Jail premises. The accused Susanta Kumar Dey, Brahmananda Swain. Sridhar Pradhan, Magu Das, Bina Sethi and Brahmananda Biswal were put to T.I. Parade. They were mixed up with twenty unconnected persons similarly dressed. The Magistrate''s evidence reveals that no police officer was allowed to have any access to the accused or the witnesses. The Magistrate took precaution that a witness who had finished the identification was not allowed to mix with witnesses who were yet to identify. The Magistrate''s evidence remained unshaken by cross-examination. Had the accused persons been shown to the witnesses earlier they would have been able to identify or made a pretence to identify more accused persons in the parade as well as before the Court. For all these reasons we are not prepared to believe that the parade was not held properly.

We shall first take up the appeal preferred by the State. As mentioned earlier, out of the seven acquitted persons the State has preferred appeal only against two accused persons, namely Susanta Kumar Dey and Brahmananda Biswal.

We first of all take up the case of accused Susanta Kumar Dey. At the trial, p. ws 3 and 6 identified this accused as one of the persons who participated in the crime. It is really surprising how they could Identify this accused at the trial when they were unable to identify him at the T.I. parade. No doubt, identification of the accused in Court is substantive evidence. But the Court has to take precaution in accepting the identification evidence of the witnesses when they were in the witness box and the accused in the dock. In Vaikuntam Chandrappa and Others Vs. State of Andhra Pradesh, , their Lordships laid down:

It is also true that the substantive evidence is the statement In Court; but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding.

Similar view was taken in Rameshwar Singh Vs. State of Jammu and Kashmir, . P.Ws. 3 and 6 saw the culprits for a fleeting moment and that too in a dark night. When they saw the accused in such a situation it passes our comprehension how they could identify the accused several months after. . We are not therefore, inclined to accept the identification made by these witnesses.

Prosecution also relied on the circumstantial evidence about recovery of a pistol (M.O.V). some live cartridges (M.O.VI series), two magazines (M.O. VII series) and some empty cartridges (M. O. VIII) from the possession of this accused. P.W. 17 who conducted the search and seizure is the Sub-Inspector of Police of Mangalabag Police Station. He was not the Investigating Officer of this case. His evidence was that on 27-7-1974 on the complaint of one G. Thappa that his wife had been kidnapped by this accused, he along with an A.S.I. of Police and some constables raided a house at village Kamalpur, which this accused was occupying as a tenant under one Jogi Sahu, in presence of P.Ws 12 and 1-4 and recovered the incriminating articles. Then he produced the accused along with the articles before the Investigating Officer. P.W. 18. P.Ws. 12 and 14 who were cited as witnesses to the seizure did not support the evidence of P.W. 17 and were cross-examined by the Public Prosecutor. We have very carefully perused the judgment of the trial Court wherein the learned Judge has very elaborately discussed the evidence of these witnesses. For the sake of brevity of the judgment we would not like to repeat the reasonings adopted by the learned Judge in disbelieving the evidence about recovery of the aforesaid articles from the possession of this accused. The accused denied having occupied any house on rent at Kamalpur. It is in evidence that this accused is the son of the Post Master, Chauliaganj Post Office and he has his own residential house on a big plot of land in the city of Cuttack. Jogi Sahu who is said to be the owner of the house wherefrom the articles were seized was not examined at the trial. The wife of the said G. Thappa was said to be present inside the house at the time of seizure. She has also not been examined. Thus it will be seen that the independent witnesses, though available, have been withheld from the box. The trial Court also noticed several suspicious features in the seizure list and disbelieved the prosecution case about recovery of the aforesaid articles from the possession of this accused. We see no compelling justification to differ from its findings.

Prosecution also relied on the expert''s report (Ext- 29) to show that the bullet (M. O. I) which was extracted from the dead body of the deceased was fired by means of M.O.V. and that the magazines which were seized from the spot fitted into the pistol (M.O.V) for firing cartridges loaded into them. The report (Ext. 29) has been given by the Assistant Director and Assistant Chemical Examiner. It appears to have been simply forwarded to the Court by the Director and Chemical Examiner to the Government of Orissa, State Forensic Science Laboratory, Bhubaneswar though he had no role to play. The Assistant Director and Assistant Chemical examiner who has submitted the report was cite as a witness in the charge-sheet and he also attended Court, but for reasons best known to the prosecution he was not examined at the trial. It is true that u/s 293 of the new Code of Criminal Procedure the report of the Assistant Chemical Examiner to Government is admissible in evidence, but in the present case though it is the Assistant Chemical Examiner who has given the report, it is obvious that it does not pertain to his field of expertise. He has given his opinion about the science of Ballistics. That is properly the function of a Ballistic expert and not of the Chemical Examiner. Only a Ballistic expert can trace a bullet or cartridge to the particular weapon from which it was discharged by the application of certain tests. No doubt, the Assistant Chemical Examiner who has given the report is also the Assistant Director of the Forensic Science Laboratory. But under the provisions of Section 293, Code of Criminal Procedure it is only the report of the Director of a Forensic Science Laboratory that can be admitted into evidence. Assistant Director is not included in the list of scientific experts given in Sub-section (4) of Section 293, Code of Criminal Procedure. That being so, we held that the report (Ext. 291 is not admissible in evidence. Even assuming that it is admissible, it is of no avail to the prosecution in view of our earlier findings that the prosecution failed to establish that the incriminating articles like the pistol (M.O.V), the cartridges, the magazines etc. were actually recovered from the accused Susanta or that he was present at the scene of occurrence as one of the participants in the crime.

No doubt, this accused was implicated as one of the participants in the crime in the judicial confession of the accused Sridhar Pradhan. But as we have already indicated above the retracted confession of a co-accused cannot be made the foundation of a conviction. It can be used only in support of other evidence, but it cannot be used to fill a gap in the prosecution evidence. The acquittal of the accused Susanta is, therefore, justified.

Accused Brahmananda Biswal: He has been identified by P.W. 6 alone in the T.I. parade as well as in Court. He has also been implicated in the judicial confession (Ext. 7) as a participant in the crime. P.W. 6 stated that at about 11. 30 p.m. in the night while he was going with a lantern to sleep in a shop some persons surrounded him, struck down his lantern and threatened to assault him by means of pistol, dagger and lathi. So, out of fear he went away from the spot and raised an alarm as "thief, thief." According to him, it took about two minutes from the time the miscreants surrounded him till they left him and that he was greatly perplexed and stupefied with horror. It is difficult to believe that in such a situation the witness could remember the features of the accused so as to be able to identify him at the parade. It is noteworthy that the witness has not described the particular act which he had seen performed by the accused whom he identified. It is not shown that the accused has any distinctive marks in his appearance to fix his features indelibly upon the mind of the witness. It was a pitch-dark night and there was no light as the lantern carried by the witness was struck down and put off by the miscreants. As a number of persons surrounded the witness it is not unusual for him to commit mistake of Identity. The inmates of the house of P.W. 1 have not been able to identify this accused. It is true, that under the Evidence Act the accused can be convicted even on the basts of evidence of a single witness, if that evidence is found to be trustworthy. But when the Court has to deal with the evidence relating to the commission of an offence involving a large number of offenders who were strangers to the witnesses and whom they had never before seen in their lives and whom they saw for the first time during the course of the commission of the crime, which was frightening and nerve-racking in its nature and impact, it is unsafe, without anything else to rely only on the identification evidence of a solitary witness to convict the accused. In view of all the circumstances mentioned above, we feel it unsafe to convict this accused solely on the basis of the identification made by P.W. 6. We are, therefore, of the opinion that this accused is entitled to the benefit of doubt.

We shall now take up the appeals preferred by the convicts.

Sridhar Pradhan, the Appellant in Criminal Appeal No. 103 of 1975. This Appellant was not identified by any witness, but he made a judicial confession (Ext. 7) clearly implicating himself as one of the participants in the crime. In view of our earlier findings, the confession is true and voluntary. As already mentioned, the Appellant did not deny that he had made the confession but his plea was that he made it under threat and coarcion. This plea has been found to be false. The facts stated in the confessional statement fit in with the rest of the evidence and the surrounding circumstances. It does not suffer from any inherent improbability. In the confessional statement there are vivid details about the manner of the commission of the crime in question which only the perpetrator of the crime could know. We, therefore, hold that this Appellant was one of the persons who participated in the crime.

Magu Das, the Appellant in Criminal Appeal No. 102 of 1975: He has been identified by P.W. 1 as one of the culprits both in the T.I. parade and in Court. P.W. 6 identified him in Court though he could not identify him in the T.I. parade. The Appellant has been implicated in the judicial confession (Ext. 7). According to P.W. 1, this Appellant is one of the three -persons who entered his house. He specifically stated that this Appellant stood in his front and dealt a knife blow on him. His evidence shows that one of the miscreants was focussing a torchlight. He was examined by the doctor (P.W. 8) on the day following the occurrence and injuries were found on his person vide injury certificate, Ext 5. The doctor opined that two linear injuries sustained by p w 1 could be caused by a sharp cutting weapon. In the F.I.R. P.W. 1 also stated that he was given a knife-blow by one of the culprits. Thus the evidence of P.W. 1 gains corroboration from the medical evidence and from his previous statements made in the F.I.R (Ext 1). There is nothing in his evidence as inherently improbable in the identification of this Appellant. There is also no material contradiction in the evidence of the witness so far as this accused is concerned. There is nothing on the record to show that his demeanour, while under examination in Court, was abnormal or unsatisfactory. The fact that he identified this Appellant only as a person who participated in the crime would show that he was not a tool in the hands of the police, but acted with honesty and fairness while making the identifications. This is a very important feature of the case which should be borne in mind. His evidence reveals that this Appellant was a stranger to him and he had no opportunity of seeing him after the incident and before the T.I. parade. We see no cogent ground to disbelieve his sworn testimony. This Appellant was implicated in the judicial confession (Ext. 7) as one of the participants in the crime. We have, therefore, no doubt in our mind about his complicity in the crime.

Now the question arises what offences have these two Appellants committed. They have been convicted u/s 396, Indian Penal Code. A point of law has been raised by the learned Counsel appearing in both the Criminal Appeals that out of the nine culprits, seven having been acquitted it is not possible to sustain the conviction of the remaining two on a charge u/s 396. Indian Penal Code which contemplates participation of at least five persons in the offence. In support of their contention they relied on the decision Ram Shankar Singh and Others Vs. State of Uttar Pradesh, . In that case six known persons were charged with dacoity and as the High Court acquitted three out of the six, it was held by their Lordships that the remaining three could not have been convicted for dacoity.

The legal position seems to be that in spite of the acquittal of some of the accused persons, if it is found as a fact that along with the persons convicted there were other unidentified persons who participated in the offence of dacoity, bringing the total number of participants to five or more, the conviction of the identified persons, though less than five, is perfectly correct. Cases may arise where it is possible that though the charge names five or more persons, evidence may nevertheless show that other persons who were not identified also took part in the occurrence. In such cases it would be open to the Court to convict less than five persons of the offence of dacoity provided it comes to the conclusion that five or more persons participated in the incident. In the present case the prosecution case as set out in the charge and as sought to be supported by the evidence is that only nine persons placed on trial were the persons who had committed dacoity. The charge does not indicate that those nine persons along with other unknown persons had participated in the incident. The trial Court, having acquitted seven out of nine accused persons should have considered the question whether there was satisfactory evidence to show that the two remaining accused persons could be convicted u/s 396, Indian Penal Code on the charge as framed.

There is no credible evidence on the record to show that five or more persons had taken part In the offence. According to P.W. 1, only three persons entered his house. He stated that he heard the sound of firing of gun outside his house thereby suggesting that there was another person who fired the gun. His evidence does not, however, indicate that there was any other person besides these four persons who had participated in the occurrence. The evidence of P.W. 2 who is the wife of P.W. 1 is also to the same effect. The evidence of P.W. 3 does not indicate the number of persons who participated in the incident. He could not identify any of the accused persons in the T. I. parade. P.W. 4 stated that he heard sounds of firing and saw some persons coming out of the house of P.W. 1. Thus his evidence does not also show that five or more persons had participated in the incident. P.W. 5 simply stated that he heard the sound of firing. He was declared hostile by the prosecution. According to P.W. 6. he was surrounded and assaulted by some persons and out of fear he ran a way from the spot. The evidence of P.W. 15 was that when he came out of his house many persons had already gathered near the spot and that he was chased by two persons. He did not identify any of the accused persons. In this state of evidence, it is not possible to reach the conclusion that other persons named or unnamed had acted conjointly with the Appellants. \\When seven accused persons were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same: it would mean that they did not take part in the offence. It is, therefore, clear that on the charge as framed in this case, the two Appellants cannot be convicted of the offence u/s 396, Indian Penal Code, when their co-accused persons were acquitted of that offence. We accordingly hold that the conviction u/s 396, Indian Penal Code cannot be sustained.

Now it is to be considered whether the Appellants in the two Criminal Appeals can be convicted of the lesser offence u/s 394, Indian Penal Code. This section deals with the liability of robbers some of whom cause hurt. Such hurt must be caused voluntarily for the end of robbery. The section speaks of two distinct classes of persons - those who actually cause hurt and those who do not, but are "jointly concerned" in the commission of the offence of robbery. They may not be concerned in the causing of hurt, but they become liable therefor, independently of the knowledge of its likelihood or a reasonable belief in its probability.

The evidence of P.W. 1 Bipra Palai clearly shows that the Appellant Magu Das was one of the persons who entered his house and removed the cash by breaking open the almirah. His evidence also shows that this Appellant dealt knife-blows on him evidently for the purpose of facilitating commission of theft. We are, therefore, satisfied that the acts committed by the Appellant Magu Das amounted to an offence u/s 394. Indian Penal Code.

So far as the Appellant Sridhar Pradhan is concerned, there is no evidence that he caused or attempted to cause any force or violence to the victim. He, however, admitted in his judicial confession that he entered into a conspiracy with the culprits to commit the crime and went near the spot along with the Appellant Magu Das and the other culprits and that after the incident he took a share of the stolen cash. The conspiracy before commission of the: offence and the subsequent conduct in taking a share of the stolen cash and running away from the spot along with the other culprits are some of the important matters to be taken into consideration. In our opinion, though he did not cause hurt to the victim, yet by virtue of Section 394. Indian Penal Code he can be said to be a person jointly concerned in committing robbery.

The result, therefore, is that the conviction of both the Appellants u/s 396, Indian Penal Code is altered to one u/s 394, Indian Penal Code and they are sentenced to undergo R. I. for a period of eight years each.

The two Criminal Appeals are allowed to the extent indicated above and the Government Appeal is dismissed.

The bail bonds executed by the two Respondents in the Government Appeal be cancelled.

S. Acharya, J.

I agree.

Criminal appeals allowed of Government appeal dismissed.