Allowed

Keshav Agariya v. State Of Chhattisgarh

Chhattisgarh HC17 Jan 2024CRA/1004/2015

Case brief

AI extract

What is this about?

Conviction under Section 302 IPC based solely on circumstantial evidence of a stick recovered under a memorandum was set aside as no FSL report showed human blood on it; the appellant was acquitted on benefit of doubt and directions were issued to ensure prompt release of convicts granted bail but unable to furnish bonds.

What did the court decide?

Appellant acquitted of Section 302 IPC charge on benefit of doubt and directed to be released from jail forthwith if not required in any other case.

Keshav Agariya Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 1004 of 2015

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1004 of 2015

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Keshav Agariya s/o Buturam Agariya, aged about 47 years, Resident of Village, Kasdol, P.S. and Tahsil Tamnar, District Raigarh, Revenue and Civil District Raigarh (CG).

---- Appellant

(In jail)

Versus

State Of Chhattisgarh Through Police Station, Tamnar, District Raigarh (CG)

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---- Respondent

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For Appellant :- Mr. Vikash Pandey, Advocate. For State :- Ms. Nand Kumari Kashyap, P.L.

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment On Board (18.01.2024)

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Sanjay K. Agrawal, J

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1 . This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused herein is directed against the impugned judgment of conviction and order of sentence dated 09.04.2015 passed by the Sessions Judge, Raigarh, Chhattisgarh in Sessions Trial No.27/2015, by which, the appellant herein has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and further sentenced to pay fine of

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Rs.5000/-; in default of payment of fine to further undergo additional rigorous imprisonment for 2 years.

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2 . Case of the prosecution, in brief, is that in the intervening night of 30^th and 31^st of October, 2014 at village Kasdol, Police Station, Tamnar, District Raigarh (CG) in Passengers’ Waiting Hall (Yatri Pratikshalaya), named as, ‘Kashiram Chabutara’, the appellant herein has assaulted Bittu Ram Sidar by wooden stick, due to which, he suffered grievous injuries and died and thereby, committed the said offence.

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3 . The further case of the prosecution is that in the intervening night of 30^th and 31^st of October, 2014, at village Kasdol in Passengers’ Waiting Hall (Yatri Pratikshalaya), namely, Kashiram Chabutara, the appellant herein assaulted Bittu Ram Sidar (since deceased) by wooden stick, due to which, he suffered grievous injuries and died and thereafter, in order to screen himself, poured kerosene oil and with the help of matchstick, burnt the dead body of the deceased. Thereafter, the matter was reported to Police by complainantLacchinder Rathiya (PW-1) and First Information Report was lodged vide Ex. P-1, on the basis of which, Merg intimation was recorded vide Ex.P-2. Inquest on the dead body of the deceased was prepared vide Ex. P-3 and the dead body was subjected to postmortem, which was conducted by Dr. Rajendra Patel (PW-8) and he gave postmortem report (Ex. P-

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10), in which, he opined that the cause of death was syncope due to head injury and asphyxia due to burn and the death was homicidal in nature. On the basis of memorandum of the accused (Ex.P-6), wooden stick was seized vide Ex.P-7. Shirt of the appellant and other articles were seized vide Ex. P-5. Seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur vide Ex. P13, but the FSL report has not been brought on record.

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4 . After due investigation, the appellant herein was chargesheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence by stating that he has not committed the offence and he has been falsely implicated in the offence in question.

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5 . In order to bring home the offence, prosecution has examined as many as 9 witnesses and exhibited 18 documents and defence in support of its case has not examined any witness nor has exhibited any document.

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6 . The trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

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7 . Mr. Vikash Pandey, learned counsel for the appellant, submits that the appellant has been convicted solely on the basis of his memorandum pursuant to which recovery of wooden stick and clothes of the appellant had been made and there is no other legal evidence on record. He further submits that the appellant has falsely been implicated in the crime in question and he has been convicted by recording a finding which is perverse to the record, as such, conviction of the appellant is liable to be set-aside.

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8 . On the other hand, Ms. Nand Kumari Kashyap, learned State counsel, supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant, therefore, the instant appeal deserves to be dismissed.

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9 . We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

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10. The first question is as to whether the death of deceased - Bittu Ram Sidar was homicidal in nature ?

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11. The first question as to whether the death of deceased Bittu Ram Sidar was homicidal in nature has rightly been answered by the trial Court in affirmative relying upon the

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postmortem report Ex.P-10 proved by Dr. Rajendra Patel (PW8) holding the death to be homicidal in nature. The said finding recorded by the trial Court is a correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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12. Now, the next question is, whether the appellant is the author of the crime in question?

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13. The case of the prosecution is based on circumstantial evidence. The prosecution was required to establish the five golden principles which constitute the panchsheel of a case based on circumstantial evidence as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of

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Maharashtra 1 in which it has been held in paragraph 153 as

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under: -

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction

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1 (1984) 4 SCC 116

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between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra² where the following observations were made:

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Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

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(2) 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,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for 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.”

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14. The first incriminating circumstance which has been found proved by the trial Court is that in the intervening night of 30^th & 31^st of October, 2014, the appellant and the deceased abused each other and the appellant has also abused some other persons residents thereof and that has been found proved as per the statement of Shatruhan Uraon (PW-6), however, it is not the case of the prosecution that the

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2 (1973) 2 SCC 793

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appellant herein has caused any injury to the deceased pursuant to the altercation that took place in the said night between the two and due to the said injuries, the deceased died. As such, this incriminating circumstance is of no use to the prosecution.

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15. That next incriminating circumstance the trial Court has found proved is that pursuant to the memorandum of the appellant, wooden stick has been seized, though witness of recovery and memorandum statement Lachhinder Rathiya (PW-1) has turned hostile and another witness Jatinder Sao (PW-7) has supported the case of the prosecution, even the said recovery and memorandum statement are held to be proved, but surprisingly, pursuant to the recovery, wooden stick was seized and sent for chemical examination to the FSL, but no FSL report has been brought on record to hold that it was stained with human blood.

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16. The Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another 3 held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though,

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3 (2019) 7 SCC 781

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even though the blood group is not proved because of - disintegration of blood and held in paras-23 & 24 as under:

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“ 23 . From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match.

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24 . In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

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17. Even the Supreme Court in the matter of Mani v. State of Tamil Nadu 4 has held that discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. It was further held that once the recovery fails, there would be literally nothing which supports the prosecution case.

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18. Reverting finally to the facts of the present case, it is quite vivid that though the trial Court has rightly held that death of

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4 (2009) 17 SCC 273

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the deceased is homicidal in nature, but further two incriminating circumstances that the appellant and the deceased abused each other in the intervening night of 30 th & 31 st of October, 2014, is of no use to the prosecution, thereafter, though wooden stick was seized from the possession of the appellant vide Ex.P-7 pursuant to the memorandum statement proved by Jatinder Sao (PW-7), but it was not found stained with human blood and in light of the decisions of the Supreme Court in Balwan Singh (supra), such recovery is of no use to the prosecution, as also the recovery is a weak piece of evidence {see Mani (supra)}. No other incriminating circumstance has either been brought on record by the prosecution or found proved by the trial Court. Even no blood has been found on the clothes of the appellant. It would be unsafe to convict the appellant only on the basis of recovery. In that view of the matter, the appellant is entitled for acquittal on the basis of benefit of doubt.

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19. Consequently, we are unable to uphold the conviction of the appellant for the offence punishable under Section 302 of the IPC and he is entitled for acquittal on the basis of benefit of doubt. The appellant is acquitted of the charge under Section 302 of the IPC. He is reported to be in jail, therefore, we direct that he be released from jail forthwith, if his detention is not required in any other case.

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20. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for necessary information and action, if any.

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21. Before parting with the record, we must notice the disturbing state of affairs in this appeal, as this Court by order dated 14-10-2015 has allowed the application for suspension of sentence and grant of bail and granted bail to the appellant herein and he was directed to be released on bail on his furnishing personal bond in the sum of ₹ 25,000/- with one solvent surety in the like amount to the satisfaction of the trial Court, but it has now been brought on record that he could not be released on bail despite the order of this Court, as he could not furnish bail bonds. Thereafter, the appellant herein while languishing in jail, on 5-1-2023, informed to the Chhattisgarh High Court Legal Services Committee through the concerned Superintendent, Central Jail that he could not furnish bail bond and thus, could not be released on bail, therefore, he be released on personal bond or his case be heard finally and that is how the matter has been placed before us. Once the application for suspension of sentence and grant of bail was allowed and bail was granted to the appellant herein, but thereafter, since the appellant could not

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furnish bail bonds, it was the duty of the concerned court to inform to this Court that the appellant has failed to furnish bail bonds and could not be released, but that has not been done and the case of the appellant could not be placed before the Court for further orders or for releasing the accused / appellant on personal bond and he remained in jail for more than 8 years despite the order suspending sentence and grant of bail by this Court.

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22. This Court by order dated 25-4-2007 passed in Cr.A. No.1523/1998 {Bhanwar Sai v. State of Madhya Pradesh (Now Chhattisgarh}, directed that “as and when the sentence is suspended and accused is granted bail with a rider that accused shall furnish bail bond before the trial Court and thereafter he be released, such orders are sent for compliance to the trial Court, but the trial Court is not sending any compliance report to this Court as to whether in pursuance of the Court order the accused on furnishing bail bond has been released or not, or the accused has not furnished the bail bonds”. The Registry of this Court has issued a circular informing the said direction / order to all the District & Sessions Judges along with the copy of order dated 25-4-2007 passed in Cr.A.No.1523/1998 to the following effect: -

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“It has been observed that as and when the sentence is suspended and accused is granted bail with a rider that accused shall furnish bail

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bond before the trial Court and thereafter he be released, such orders are sent for compliance to the trial Court, but the trial Court is not sending any compliance report to this Court as to whether in pursuance of the Court order the accused on furnishing bail bond has been released or not, or the accused has not furnished the bail bonds.

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In view of the above, as and when an order is passed for releasing the accused on bail on furnishing bail bond to the satisfaction of the trial Court, it is the duty of the concerned trial Court to intimate this Court as to whether in compliance of this Court’s order the accused has been released on bail or not or the accused failed to submit the bail bonds.

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All the subordinate Courts are directed to observe and follow the above directions scrupulously”.

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You are requested to comply the order and submit report.

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Copy of the order is annexed which be circulated to all the judicial officers posted in the District for strict compliance.

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23. Despite that circular, the Sessions Judge concerned has not taken pains to inform this Court that the accused has failed to furnish bail bonds on account of his poor financial condition resulting in his continued incarceration.

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24. Not only this, very recently, in the matter of In Re Policy Strategy for Grant of Bail 5 , their Lordships of the Supreme Court with a view to ameliorate the problems, issued number

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5 2023 SCC OnLine SC 483

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of directions in this regard which are as under: -

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“1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department].

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If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release.

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NIC would make attempts to create necessary fields in the e-prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA.

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The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition(s) of bail/surety.

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In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate

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case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties.

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If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/relaxation.

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One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety.”

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We order that the aforesaid directions shall be complied with.”

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25. However, it appears that the mandate/directions issued by their Lordships of the Supreme Court are not being followed in its letter and spirit. Therefore, it is directed that all the Courts will follow the above-stated imperative directions / mandate issued by the Supreme Court in In Re Policy Strategy for Grant of Bail (supra) without fail and the Court which grants bail to the under trial prisoner / convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software. If the accused is not released within a period of 7 days from the date of grant of bail, it is the duty of the Superintendent of Jail to

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inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release.

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26. Registry of this Court is directed send copies of all bail orders to the concerned Jail Superintendents for immediate compliance as stated by their Lordships in para (1) of the direction issued in In Re Policy Strategy for Grant of Bail (supra) without fail.

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27. Copy of this order be sent to the Registrar (Judicial) and the Secretary, High Court Legal Services Committee for onward circulation to all Secretaries of DLSAs of the State of Chhattisgarh and to all the Sessions Judges who in turn, will circulate the same amongst all the courts. Copy of this order be also sent to the Director General (Prisons) for onward circulation to all the Jail Superintendents of the State of Chhattisgarh to comply the directions of the Supreme Court in its letter and spirit without fail.

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28. We hope and trust that all the courts granting bail, concerned Jail Superintendents and all the Secretaries of DLSA will comply the aforesaid direction passed by the Supreme Court in its letter and spirit so that we may not have opportunity in future to face with the situation like this where the appellant having granted bail by this Court is still in jail for eight years.

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29. The criminal appeal is allowed with the above-stated

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direction and order.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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sunita