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Dharmendra Mahato & Ors vs The State Of Bihar on 30 August, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.463 of 2013
Arising Out of PS. Case No.-44 Year-2011 Thana- KARENDE District- Sheikhpura

1. Dharmendra Mahato, Son Of Late Yamuna Mahato

2. Shakunti Devi alias Durgabati Devi, Wife Of Late Yamuna
Mahato

3. Sushma Devi, daughter Of Late Yamuna Mahato
All Residents Of Sijhuri, P.S.- Karande, District- Sheikhpura,
Bihar

… … Appellant/s
Versus
The State Of Bihar

… … Respondent/s

Appearance :

For the Appellant/s : Sri Jagdish Prasad, Advocate
Sri Bhimsen Prasad, Advocate
For the Respondent/s : Sri Ajay Mishra, A.P.P.

CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)

Date : 30-08-2018

1. The present Appeal has been preferred against the

judgment of conviction of aforesaid three appellants in Sessions

Trial No. 513 of 2012 / TR No. 29 of 2012 ( arising out of

Karande P.S. Case No. 44 of 2011 ) passed by learned Ad-hoc

Additional Sessions Judge – I, Sheikhpura. All the three appellants

by judgment dated – 10.04.2013 were convicted for commission of

offence under Section 498A / 34, 304B of the Indian Penal Code ,

1860 ( hereinafter referred to as the “I.P.C.”) and Section 4 of the

Dowry Prohibition Act, 1961 ( hereinafter referred to as the “D.P.

Act”). By order dated: 11.04.2013 appellant no. 1 – Dharmendra
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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Mahato ( husband of the deceased) under Section 304B of the

I.P.C. was sentenced to undergo rigorous imprisonment for life,

whereas, other two appellants namely- Shakunti Devi @ Durgabati

Devi ( mother of appellant – 1 mother -in-law of deceased)

and appellant no. 3 – Sushma Devi (sister of appellant no. 1)

under Section 304B of the I.P.C. were sentenced to undergo

rigorous imprisonment for seven years. All the appellants under

Section 498A / 34 of the I.P.C. were sentenced to undergo rigorous

imprisonment for three years and to pay a fine of Rs. 1000/- each.

In default of payment they were directed to additionally undergo

imprisonment for three months. Under Section 4 of the D.P. Act all

the three appellants were sentenced to undergo imprisonment for

six months and to pay a fine of Rs. 1000/- each. In default of

payment of fine they were directed to further undergo simple

imprisonment for one month. All the sentences were directed to

run concurrently. The judgment of conviction and sentence was

passed by Sri Vijay Kumar Trivedi, learned Ad-hoc Additional

Sessions Judge – I, Sheikhpura (hereinafter referred to as the “trial

judge”) in Sessions Trial No. 513 of 2012 / TR No. 29 of 2012

( arising out of Karande P.S. Case No. 44 of 2011).

2. Short fact of the case is that on 16.12.2011 at 18.50

Hours (6.50 P.M.) in Emergency Ward of Sadar Hospital,
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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Sheikhpura one probationer Sub Inspector of Police Sri Mukesh

Kumar Verma (P.W. 9) recorded fardbyan of Bindu Devi

(deceased)/ wife of appellant no. 1. In the fardbyan the informant

disclosed that her marriage was solemnized with appellant no. 1 –

Dharmendra Mahato, S/o Yamuna Mahato three years back in the

village – Sijhuri, P.S. -Karande, district – Sheikhpura as per Hindu

rites. About six months back after donga she had come to her

husband’s house and with her husband , mother-in-law and father –

in-law led peaceful life, however, two months after donga her

husband , mother-in-law, father-in-law, devar and nanad started

torturing her and compelling her to bring Rs. 50,000/- as dowry on

which she replied that whatever was to be given that has already

been given by her father at the time of marriage and now it was

difficult to make any payment since his father was a poor person.

Due to the said reason repeatedly the informant was being

tortured and compelled to bring money . She further disclosed that

on the same day i.e. on 16.12.2011 which was Friday at about

3.30 P.M. she developed some abdominal pain which was

intimated to her husband, mother-in-law and father-in-law, then

she was threatened that she will be done to death. One hour

thereafter while she was lying on bed with abdominal pain, her

mother- in- law ( appellant no. 2) , father- in- law , nanad , devar
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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along with her husband entered into the room and locked the room

from inside. Her husband brought container of kerosene oil and

sprinkled the same over her body, then mother-in-law, father -in-

law, nanad and brother of her husband all caught her and thereafter

her father -in-law lighted machis and threw it on her person. Fire

caught her clothes and she started crying, however, all the accused

persons after locking room from outside fled away. She raised

alarm thereafter neighbourers arrived there and extinguished the

fire. In the meanwhile, her brother – Srikant Mahto (P.W. 4 )

arrived there and with his help she was carried to Sadar Hospital,

Sheikhpura where she was under treatment. She claimed that her

husband – Dharmendra Mahato (appellant no. 1), father -in-law /

Yamuna Mahato ( since died), mother -in-law /Shakunti Devi @

Durgabati Devi (appellant no. 2), brother of her husband-

Sakendra Mahto ( case referred to Juvenile Justice Board ) and

sister of her husband – Sushma Devi (appellant no. 3 ) conniving

with each other with common intention had administered torture

and by putting her on fire tried to kill her. She further stated that

her fardbyan was read over to her by her brother – Srikant Mahto

(P.W. 4) and after finding it correct in presence of Srikant Mahto

she put her right thumb impression. The said fardbyan was also

signed as witness by Srikant Mahto ( P.W. 4). On the basis of the
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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said fardbyan on 17.12.2011 at 16.00 hours ( 4.00 P.M.) a formal

F.I.R. vide Karande P.S. Case No. 44 of 2011 was registered for

the offence under Sections 341/342/307/ 498A/ 34 of the I.P.C.

and Sections 3/4 of the D.P. Act against the aforesaid three

appellants and Yamuna Mahato ( father of appellant no. 1) and

Sakendra Mahto (younger brother of appellant no. 1).

3. After investigation, on 10.06.2012 charge- sheet was

submitted against all the five F.I.R. named accused persons for the

offence under Sections 304(B)/34 of the I.P.C. After filing of the

charge -sheet it appears that younger brother of appellant no. 1

Sakendra Mahto claimed juvenility, and as such, his case was

referred to the Juvenile Justice Board. Thereafter, on 26.06.2012

learned Chief Judicial Magistrate , Sheikhpura took cognizance

of the offence and on 26.06.2012 the case was committed to the

court of Sessions, and as such, it was numbered as Sessions Trial

No. 513 of 2012. On 30.07.2012 charge was jointly framed

against the remaining four accused persons which includes the

aforesaid three appellants under Section 498A, 302, 304B of the

I.P.C. and Section 3 /4 of the D.P. Act. Thereafter, evidence

commenced, however, due to death of accused – Yamuna Mahto

( father of appellant no. 1 ) on 01.08.2012 his case stood abated.
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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4. During the trial to establish its case from the

prosecution side altogether ten witnesses were examined. P.W. 1

( Parmeshwari Devi ), P.W. 2 ( Sita Devi) and P.W. 3 (Janki Devi)

are co-villagers of the accused persons. P.W. 4 ( Srikant Mahto)

though in the fardbyan was described by the deceased

( informant ) as her brother, in his evidence has stated as if he was

distant relative of the informant, who proved his signature on the

fardbyan, which was marked as Ext. 1. This witness as well as

P.W. 5 -Vikash Kumar [ Son of P.W. 4 -Srikant Mahto] were

declared hostile. P.W. 2 ( Sita Devi ) was also declared hostile.

P.W. 6 -Soma Devi [ mother of the deceased ] though deposed

entirely contrary to the prosecution case, she was not declared

hostile. Similarly, P.W. 7 – Krishna Nandan Mahto ( father of the

deceased) has also not supported the prosecution case, he too was

not declared hostile. P.W. 10 ( Dr. Anil Kumar ) who was posted

on 20.12.2011 in the Patna Medical College and Hospital had

conducted post-mortem examination on the dead body of the

deceased. P.W. 9 (Mukesh Kumar Verma) who had recorded the

fardbyan of the informant (deceased) had proved the fardbyan,

which was marked as Ext. 2/1 and Bishweshwar Prasad Yadav

( P.W. 8) was the Officer- in-charge of Karande Police Station on
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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the date of occurrence and he is the Conducting Officer who

submitted charge-sheet also.

5. After completion of prosecution evidence, on

01.02.2013 statement of accused persons under Section 313 of the

Code of Criminal Procedure, 1973 ( hereinafter referred to as the

“Cr.P.C.”) was recorded in which appellants claimed to be

innocent and also claimed that at the time of occurrence they were

not present at the place of occurrence. From the defence side

altogether six witnesses were examined to substantiate that the

appellants at the time of occurrence were not present at the place

of occurrence. A defence has been taken that deceased on her

marriage with appellant no. 1 was not satisfied and this was the

reason that she was not willing to come to her husband’s house and

by force she was asked to reside with her husband, and thereafter,

due to such reason, she had committed suicide by putting herself

on fire.

6. Sri Jagdish Prasad, learned counsel, assisted by Sri

Bhimsen Prasad, learned counsel for the appellants after referring

aforesaid evidences has argued that all the appellants have been

held guilty and sentenced in a case of no evidence. He submits

that of-course initially prosecution had come out with a case that

the case was based on dying declaration of the deceased but on
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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perusal of the fardbyan itself vis-à-vis post-mortem examination

report of the deceased it appears that fardbyan appears to be not

believable. It is evident that in a case of burn injury having about

95% injury the injured was in any event not in a position to make

any statement what to talk of detailed description which has been

shown in the fardbyan of the deceased. He submits that the doctor

who conducted post-mortem examination on the dead body of the

deceased was examined as P.W. 10 and in the post- mortem

examination he had noticed that the deceased was having 95 %

burn injury. Sri Jagdish Prasad, learned counsel for the appellants

has argued that in a case of more than 70% burn injury it would be

difficult for anyone to make any statement whereas in the present

case deceased had received 95 % burn injury and in such injured

condition it was impossible for her to make such specific

description in the fardbyan as to when she was married with

appellant 1, for what time she remained with her husband and

how she was tortured and was forcibly burnt. It has also been

argued that though fardbyan of the injured (deceased) was shown

to be recorded in the Sadar Hospital, the Investigating Officer had

not bothered to get any certification from the doctor in the

Emergency Ward as to whether the injured was in a condition to

make such statement or not . He submits that it is settled law that
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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in absence of certification of doctor in a case of recording

fardbyan in hospital the said fardbyan may not be treated as dying

declaration. He submits that if the fardbyan in the case is not

treated as dying declaration, there is nothing in the case to show

that the appellants were directly or indirectly involved in the case,

rather it was a case of voluntary suicide by the deceased without

any provocation from the appellants side.

7. Sri Jagdish Prasad, learned counsel for the appellants

has argued that in the case mother and father of the deceased

were the best persons to depose as to whether the victim before the

occurrence had ever informed them regarding torture for non-

fulfillment of dowry or not. He submits that on the contrary

mother and father both have deposed that their daughter was not

happy on her marriage with appellant no. 1 and she was not

willing to go to her husband’s house. It has also come in their

evidence that they put pressure on the deceased to reside with her

husband and within few days when she was left to her husband’s

house she voluntarily committed suicide. Besides this, it has been

argued that the neighbourers of the appellants have also come

forward to depose but they too had stated that the wife of

appellant no. 1 herself had put fire on her and committed suicide.

Sri Jagdish Prasad, learned counsel for the appellants has further
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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argued that at best the so-called brother who had put signature on

the fardbyan was the best person to state as to whether the

deceased had made any such fardbyan or not, however, in the

present case the said person i.e. Srikant Mahto was examined as

P.W. 4 and to the reasons best known to the prosecution he was

declared hostile and he has only identified his signature on the

fardbyan, which was marked as Ext. 1. On aforesaid grounds it

has been argued that the learned trial judge in a case of no

evidence has incorrectly passed judgment of conviction and

sentence, which requires to be set aside.

8. Sri Ajay Mishra, learned Additional Public Prosecutor

tried to defend the prosecution case, however, he was not in a

position to satisfy the court as to whether in a case of 95% burn

injury the informant (deceased) was in a position to give such

descriptive fardbyan or not, but he insisted that fardbyan is

virtually the last word of the deceased, and as such, the learned

trial judge relying on the fardbyan has passed judgment of

conviction and sentence, which may not be interfered with.

9. Besides hearing, learned counsel for the parties, we

have minutely examined entire evidences available on record and

after going through the same we are prima facie satisfied that in

view of aforesaid evidences there was no reason for the learned
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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trial judge to pass judgment of conviction and sentence. We have

already discussed in detail as to what informant ( deceased ) had

stated in her fardbyan. On going through the fardbyan it is difficult

to rely on the prosecution case that the said fardbyan was given by

the injured who was having 95% burn injury. It is not a case that

in hospital few words were stated by the injured and she

disclosed regarding involvement of the accused persons but in the

fardbyan right from the very beginning it has been described as to

when marriage of injured (deceased ) was performed with

appellant no. 1, when after ruksaddi she went to the house of her

husband, what torture was administered and what amount was

demanded. All those things create serious doubt in the mind of the

Court as to whether in such injured condition one can make

such detailed statement. Moreover, we are in agreement with

the submission of learned counsel for the appellants that in the

hospital once fardbyan of injured was being recorded certification

by doctor was necessary. Of- course in absence of such

certification entire prosecution case may not be brushed aside, but

in view of the peculiar facts and circumstances of the present case

non-availability of certification by doctor also creates some doubt.

Even P.W. 4 ( Srikant Mahto ) in the fardbyan was shown to be

brother of the injured (deceased ) however at the time of evidence
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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P.W. 4 has stated otherwise, which indicates that he was distantly

related with the deceased. This witness i.e. P.W. 4 who is the only

witness to the fardbyan has also not supported the prosecution

case. In absence of any corroboration by the witness to the

fardbyan certainly the said fardbyan cannot be termed as dying

declaration.

10. In the case P.W. 1 (Parmeshwari Devi) – co-villager

of the appellants has accepted that deceased as a co-villager was

her daughter- in- law and her marriage was solemnized with

Dharmendra Mahato ( appellant no. 1 ). She in paragraph -2 has

stated that the in -laws of the deceased had gone outside for their

work and in the meanwhile Bindu Devi ( deceased) had put

herself on fire. She further stated that she was unaware as to

whether in between husband and wife there was any dispute or

not. This witness examined as prosecution witness though had not

supported the prosecution case, was not declared hostile by the

prosecution. Meaning thereby that evidence of this witness may

not be ignored particularly on the point that deceased herself had

put herself on fire and at the time of occurrence none of the

appellants were present at the place of occurrence.

11. P.W. 2 (Sita Devi) – one another co-villager of the

appellants deposed in paragraph -2 that deceased was not willing
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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to reside with her husband and 10-15 days back she had come to

her in-law’s house. In paragraph -3 she further stated that when the

in-law’s of deceased were not in house Bindu Devi put herself on

fire. Due to such burn injury she was not in a position to speak.

This witness was thereafter declared hostile as requested by

learned Public Prosecutor.

12. P.W. 3 (Janki Devi) – another co-villager of the

appellants has reiterated that the deceased herself had put herself

on fire. She further indicated that about 10-15 days back deceased

had come to her in-law’s house and she was not liking her in-

law’s house and this was the reason that by sprinkling kerosene oil

she ignited machis. This witness has also not been declared

hostile.

13. Similarly, P.W. 4 (Srikant Mahto) whose presence

has been shown as per fardbyan since he put his signature on the

fardbyan and informant (deceased) in her fardbyan had also

disclosed that after injury she was carried by this witness and

others to hospital, has not supported the prosecution case and he

also reiterated the same stand which was taken by other witnesses

that victim herself had tried to commit suicide. This witness has

identified his signature on the fardbyan which was marked as Ext.

1. This witness was declared hostile.

Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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14. P.W. 5 (Vikash Kumar) is none else but the son of

P.W. 4 (Shrikant Mahto) and he too was declared hostile.

15. Now the most important witnesses were the mother

and father of the deceased who were examined as P.W. 6 (Soma

Devi ) and P.W. 7 ( Krishna Nandan Mahto) . In paragraph -2 of

the evidence of P.W. 6 she stated that in the in-law’s house the

deceased with her husband remained only for fifteen days and

thereafter by putting herself on fire she died in Government

Hospital, Patna. In paragraph -4 she stated that Bindu (deceased)

was not interested to go to her in law’s house and with a view to

maintain social image she had compelled her to go to her in- law’s

house. She further reiterated that her daughter was not liking her

husband and this was the reason for the occurrence. P.W. 6 was

not declared as hostile witnesses.

16. Father of the deceased- P.W. 7 (Krishna Nandan

Mahto) in his evidence in paragraph – 2 has stated that his daughter

had never intimated him as to whether anything had ever

happened against her in her in- law’s house. In paragraph -13 of

his cross- examination he stated that before Police at Patna and

Sheikhpura he had given statement that his daughter was not liking

her husband nor she was willing to go with him. In paragraph -14

he stated that by force to save social image he sent his daughter
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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and this was the reason that she put herself on fire. In paragraph –

17 of his cross -examination he further stated that his daughter

had informed him that she was not willing to continue relation

with her husband . In paragraph – 18 of the cross -examination he

while identifying all the four accused persons which includes the

aforesaid three appellants stated that they had not burnt his

daughter. This clearly indicates that it was not a case of dowry

death.

17. At this juncture it would be necessary to incorporate

the evidence of Dr. Anil Kumar ( P.W. 10 ) who conducted post-

mortem examination on the dead body of the deceased. He had

proved the post -mortem examination report, which was marked as

Ext. 3. On 20.12.2011 this witness was posted in P.M.C.H. and on

the same day he conducted post -mortem examination on the dead

body of the deceased which was conducted at 3.30 P.M. on

20.12.2011 and in the post-mortem examination he noticed the

following facts:-

“External finding:- She was thin built. Rigor mortis present all
over body. No sign of decomposition. Fooly’s IV Cells , in-
citic and intravenous eathalen right foot.
Scalp hair sinerd and bandaged burn wound found as
detailed in para below.

On removal of bandage, anti-mortem burn wound was
found all over body, both upper limb, both lower limb,
neck on anterior and posterior of surface and face except
part of both sole and (all together 95% burn). Burn was
epidermal to dermal in thickness.

Internal finding on dissection:-

Cranial and spinal canel:- Maninges conjusted.
Thorax:- Lung both congested.

Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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Heart:- Right side chamber contained blood and left side
empty.

Abdomen:- Liver, spleen and kidney all congested.
Stomach:- Yellow color fluid and its mucosa was normal.
Urinary bladder:- Empty and uterus N.A.D. (no abnormality
detected).

Opinion:-

I. Cause of death- ante-mortem burn and its complication.
II. Time elapse since death- 06 to 24 hours approximately ”

In his cross -examination in paragraph – 5 he stated that

in case of 40 % burn injury also death can be caused, however, in

his evidence as well as on examination of the post-mortem

examination report it is evident that dead body was having 95 %

burn injury.

18. P.W. 9 (Mukesh Kumar Verma) had only recorded

fardbyan of the deceased and he proved the fardbyan, which was

marked as Ext. 2/1.

19. P.W. 8 (Bishweshwar Prasad Yadav) on the date of

occurrence was posted as Officer – in – Charge in Karande Police

Station and he had drawn the formal F.I.R., which was marked

Ext. 2. He conducted investigation and he had also submitted

charge-sheet. In his evidence he has stated that after the occurrence

he visited the place of occurrence, however he did not notice any

smoke nor smell of kerosene oil at the place of occurrence. On

going through the evidence of P.W. 8 we are of the opinion that in

such cases particularly in case of burning this should not have

been the approach of the Investigating Officer to conduct
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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investigation in such a manner. Moreover, on examination of the

evidence of P.W. 8 ( Investigating Officer) it is difficult to come to

a conclusion as to what was the actual place of occurrence.

20. In defence in the statement of the appellants which

was recorded under Section 313 of the Cr.P.C. they had taken the

same stand that at the time of occurrence they were not present.

This fact has also been corroborated in the defence evidence. In

the case from the defence side six witness were examined, namely:

Rajendra Mahto ( D.W. 1), Kapildev Mahto ( D.W. 2), Shibu

Mahto ( D.W. 3), Shanti Devi ( D.W. 4), Mushtaque Ansari ( D.W.

5) and Arun Kumar ( D.W. 6).

21. Normally, in a criminal trial it is not necessary to

place much reliance on the evidence of defence witnesses but in

view of peculiar facts and circumstances of the present case

certainly we may lend some reliance on defence evidence. Even if

for the time being we ignore the defence evidence on examination

of prosecution evidence we are satisfied that prosecution has

miserably failed to establish its case beyond all reasonable doubt,

and as such, it is fit a case for interfering with the judgment of

conviction and sentence. Accordingly, judgment of conviction

dated -10.04.2013 and sentence dated : 11.04.2013 passed by Sri

Vijay Kumar Trivedi, learned Ad-hoc Additional Sessions Judge –

Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
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I, Sheikhpura in Sessions Trial No. 513 of 2012 / TR No. 29 of

2012 ( arising out of Karande P.S. Case No. 44 of 2011 ) is

hereby set aside.

22. The Appeal is allowed.

23. In this case appellant no. 2 and 3 are on bail, and as

such, they are discharged from liability of their bail bonds. So far

appellant no. 1 is concerned, he is in custody and since judgment

of conviction and sentence has been set aside, it is hereby

directed to release him forthwith, if not required, in any other case.

24. The Appeal stands allowed.

(Rakesh Kumar, J)

( Arvind Srivastava, J)
praful/-

AFR/NAFR AFR
CAV DATE NA
Uploading Date 06-09-2018
Transmission Date 06 -09-2018

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