Kulwant Singh Alias Bittoo vs State
2009 Latest Caselaw 4435 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment reserved on: October 05, 2009
                                 Judgment delivered on : November 03, 2009


+      CRIMINAL APPEAL NO. 218/1994

       KULWANT SINGH ALIAS BITTOO                       ..... Appellant
                           Through:               Mr. A.J.Bhambhani,
                                                  Advocate with Ms. Nisha
                                                  Bhambhani, Advocate

                    Versus

       STATE                                            ..... Respondent
                                       Through:   Mr. Sunil Sharma,Advocate

       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE AJIT BHARIHOKE


1.     Whether Reporters of local papers may be allowed to see
       the judgment?                                           Yes
2.     To be referred to the Reporter or not ?                Yes
3.     Whether the judgment should be reported in Digest ?    Yes


AJIT BHARIHOKE, J.

1. The appellant having been convicted in the Sessions Case

No.76/94 emanating from FIR No.277/92, P.S. Tilak Nagar for an

offence under Section 302 IPC and sentenced in terms of order dated

09.08.1994 to undergo imprisonment for life with a fine of Rs.5000/-

and in default of payment of fine, to undergo RI for a period of one and

a half year, has preferred the instant appeal.

2. The facts in brief are that the appellant and Ms. Rani (hereinafter

called „deceased‟) were members of a dance group. The appellant had

an infatuation with the deceased and wanted to marry her. His

proposal for marriage was declined by Ms. Rani. On 17.05.92 at about

5.00 PM, appellant Kulwant Singh @ Bittoo called Ms. Rani to his House

No.WZ-112, Sant Nagar, Tilak Nagar, New Delhi on the pretext of

discussing an offer for a dance programme. There at his house,

appellant threatened her saying that either she should consent to

marry him or he would finish her. When she declined the offer,

appellant poured acid upon her body and face with a bottle, and fled

away after having bolted the door of the room from outside. It is

further the case of the prosecution that in the process, the appellant

also sustained acid burn injuries and he went away from the spot of

occurrence in three-wheeler scooter of PW8 Kashmir Singh who noticed

acid burns on his hands and on his enquiry, the appellant told him that

he had to go to a Doctor. The appellant is stated to have alighted from

the scooter at Khayala. PW7 Subhash and PW16 Surender Kumar are

stated to have heard the shrieks of appellant deceased, so they

reached at the spot of occurrence and on seeing the door of the room

of the appellant locked they broke the „kunda‟ of the door and rescued

Rani who had suffered acid burns.

3. It is further the case of prosecution that someone rang up Police

Control Room and informed that a girl had been confined in a room of

House No.WZ-112, Sant Nagar, after pouring acid on her. The

information was conveyed to the Police Station Tilak Nagar and was

recorded in the Daily Diary as DD No.39-B dated 17.05.1992

(Ex.PW13/A). SI Babu Ram, PW22 was entrusted to verify the DD

report, who visited the said house along with Constable Atma Ram. He

found the injured Rani present outside the aforesaid house with acid

burns all over her body. He immediately sent Rani to DDU Hospital

along with Constable Atma Ram. On enquiry at the spot, he came to

know that public persons had rescued the girl from the room by

breaking the lock and kunda of the door. SI Nawab Singh also reached

at the spot. He left SI Nawab Singh there to protect the scene of crime

and went to DDU Hospital. Dr. J.K. Tyagi, who had examined injured

Rani, declared her fit for making statement and appended his

endorsement to that effect on the MLC of Rani at about 6.30 PM. SI

Babu Ram thereafter recorded the statement of injured Rani in

presence of Dr. A.K. Seth, wherein she stated thus:

"I reside at the abovenoted address and I am a Dancer. Bittoo, a resident of WZ-112, Sant Nagar also performs dances with me as a Dancer. For some time Bittoo was proposing himself to me for marriage. But I did not like Bittoo because of his habits. Otherwise also he was not of my Biradari. My family members were also against this marriage with Bittoo. But Bittoo had earlier also threatened me a number of times that I should marry with him otherwise he will not leave me in a position to marry with anyone. Today at about 5.00 p.m. Bittoo called me at his house no.WZ- 112, Sant Nagar saying that there is an offer for a dance programme today. After calling me at his house, Bittoo threatened me that either I should give my consent to marry him or he would finish me that day. When I

declined his offer of marriage, Bittoo in order to kill me poured acid on my entire body and face. Thereafter he having bolted the door of that room from outside fled away from there. Legal action may be taken."

4. It is further the case of prosecution that SI Babu Ram sent said

statement of the injured along with his endorsement to the Police

Station for registration of the case and on the basis of said statement

formal FIR No.277/92 was registered under Section 307 IPC at Police

Station Tilak Nagar. It is also the case of prosecution that on

inspection of spot of occurrence, SI Babu Ram found a bottle containing

some black liquid Ex.P-12, a bed sheet burnt with acid Ex.P-13 and

ashes of cloth Ex.P-14. Besides, he also found a lock make Nelson Ex.P-

15 and a broken kunda Ex.P-16. All those articles were converted into

separate sealed packets and taken into possession vide memo

Ex.PW22/D.

5. The appellant surrendered in the court of Ms. Rekha Rani, MM

and he was formally arrested by the Investigating Officer. On

interrogation, the appellant made a disclosure statement and pursuant

to that he led the police party to the house of one Gurcharan Singh at

Khayala and got recovered the T-Shirt Ex.P-10 which he was wearing at

the time of occurrence. The T-Shirt was having acid burn stains and it

was taken into possession vide Memo Ex.PW4/B. The appellant also led

the police party to the house of his uncle Dalip Singh, PW 11 at Baljeet

Nagar and from there, he got recovered the pant Ex.P-11 having acid

stains, which was also taken into possession vide Memo Ex.PW4/C. It is

further the case of prosecution that the accused also led the police

party to Old Market, Tilak Nagar and pointed out the shop of PW 25

Inderjit Singh from where he had bought the acid bottle.

6. The Investigating Officer recorded the statement of the

witnesses, arranged for sending of the Exhibits seized during

investigation to the CFSL for examination and obtained the report of

CFSL. On completion of investigation, challan under Section 302 IPC

was filed against the appellant as Rani had expired in RML Hospital on

18.05.1992, and as per the post mortem report, cause of her death

was because of shock from corrosive burns, as opined by Dr. L.T.

Ramani, PW5.

7. The appellant was charged under Section 302 IPC for having

committed murder of the deceased Rani. Appellant pleaded innocence

and claimed to be tried.

8. On completion of trial, the learned trial Judge found the appellant

guilty for offence of culpable homicide amounting to murder of the

deceased Rani and convicted him under Section 302 IPC and passed

consequent order on sentence.

9. The case of the prosecution rests mainly on the dying declaration

Ex.PW22/A of the deceased made in presence of SI Babu Ram, PW22

and Dr. Alok Seth, PW23, which also formed basis for the registration of

FIR.

10. Before adverting to the submissions made on behalf of the

appellant, it would be relevant to note that the appellant in his

statement under Section 313 Cr.P.C. took the defence that he has been

falsely implicated. According to him, he wanted to marry the

deceased, but she was not inclined. The deceased had got a break to

work in a movie "Pyar Ki Pyas". He had seen her posing for nude

posters and the deceased was afraid that he may not disclose her

secrets, which may mar her chances to work in the movies. Therefore,

with a view to get rid of him, the deceased tried to throw acid on him

and when in order to save himself, he slapped Rani. She fell down with

the acid bottle. The appellant explained that because of that, she

might have suffered acid burn injuries. He also stated that out of fear

of his own safety, he left the spot. The appellant even admitted having

purchased acid from the shop of PW 25 Inderjit Singh, but he explained

that it was purchased at the instance of deceased Rani on 17.05.1992

and not on 15.05.1992 as projected by the prosecution. Regarding the

recovery of clothes i.e. pant Ex.P-11 and T-Shirt Ex.P-10 at his instance,

he has admitted that he went to the houses of Gurcharan Singh at

Khayala and Dalip Singh at Baljeet Nagar with the police, but according

to him, the clothes were not recovered at his instance, though he

admitted that the pant and T-Shirt Exhibits P-11 and P-10 belong to

him.

11. In view of the above explanation given by the accused in answer

to the incriminating evidence put to him, the only issue for

determination in the instant appeal is whether the deceased Rani

suffered fatal acid burn injuries incidentally, as explained by the

appellant, or it was homicidal?

12. We may notice that the motive behind the incident is that the

appellant was obsessed with the deceased and when she declined to

accept his offer of marriage, he got frustrated and poured acid over

her. This fact is also admitted by the appellant in his statement under

Section 313 Cr.P.C.

13. Learned counsel for the appellant has submitted that in the

instant case the conviction of the appellant is mainly based upon the

purported dying declaration Ex.PW22/A of the deceased. He has

pointed out that the prosecution has sought to prove that she made

the dying declaration in presence of the Investigating Officer, SI Babu

Ram when he examined her at DDU Hospital and also she made dying

declaration in presence of her parents PW1 Ram Narayan and PW2

Phuleshwari Devi.

14. It was argued on behalf of the appellant that the dying

declaration Ex.PW22/A allegedly made in presence of SI Babu Ram is

not reliable because the deceased, as per the MLC Ex.PW21/A, had

suffered 60% acid burns on her body, including the face and the lips,

which makes it improbable that she would have been in a position to

speak to make a dying declaration, that too a prolix one. He has drawn

our attention to the testimony of PW16 Surinder Kumar, who stated

that the deceased was unable to speak because of the serious burn

injuries over her face, body arms and lips. He has also pointed out that

DDU Hospital admittedly could not handle the deceased and referred

her to the RML Hospital. Therefore, it is highly improbable that the

deceased could have given a prolix dying declaration Ex.PW22/A to the

Investigating Officer, SI Babu Ram. Learned counsel further submitted

that as per the testimony of PW29 Dr. Shishank Chaudhary, who was

Junior Resident Doctor in Surgical Emergency, RML Hospital, Delhi, the

patient Rani was unable to speak so as to disclose her parentage and

address. It was argued that the doubt against the authenticity of dying

declaration Ex.PW22/A is further compounded by the fact that the

Investigating Officer has admittedly obtained the impression of the big

toe of the deceased on the dying declaration, whereas perusal of MLC

Ex.PW21/A of the deceased shows that the deceased had appended

her right as well as left thumb impressions thereon. From this, learned

counsel for the appellant has urged us to infer that the dying

declaration is a fabricated document, otherwise there was no reason

for the Investigating Officer for taking big toe impression instead of

thumb impression of the deceased on the dying declaration. Besides

aforesaid circumstances, it is submitted that the dying declaration

Ex.PW22/A ought to be rejected as there is no independent

corroboration of the dying declaration.

15. On perusal of the MLC Ex.PW21/A, it transpires that the deceased

Rani was brought to DDU Hospital by Constable Atma Ram on 17.05.92

at 6:10 PM. PW21, Dr. J.K. Tyagi, who examined the injured, has

proved the MLC. He has further stated that on the same day, on the

request of the Investigating Officer, he examined the patient and

declared her fit for statement at about 6:30 PM. He has proved his

endorsement to this effect on the MLC Ex.PW21/A as Ex.PW21/B.

Therefore, we have no reason to doubt that the deceased was not fit

for statement. According to PW22 SI Babu Ram, the Investigating

Officer, he recorded the statement of injured Rani Ex.PW22/A in

presence of Dr. A.K. Seth, the then CMO of the Hospital. Dr. A.K. Seth

has appeared as PW23 and he has confirmed the aforesaid fact. Not

only this, he has even attested the statement of Rani recorded by the

Investigating Officer. Even PW26 Dr. V.K. Grover, who was the then

Senior Resident Surgeon, DDU Hospital, has confirmed in his cross-

examination that dying declaration of the deceased was recorded

under the supervision of Dr. A.K. Seth. In view of the above

overwhelming evidence, we have no reason to doubt that the

statement Ex.PW22/A was not made by the injured Rani. On perusal of

the record, we find no reason as to why the above witnesses i.e. PW22,

SI Babu Ram, PW21, Dr. J.K. Tyagi, PW23, Dr. A.K. Seth and PW26 Dr.

V.K. Grover would join hands to create a false dying declaration with a

view to implicate the appellant, with whom they have no axe to grind.

16. Another question raised for consideration is as to why instead of

thumb impression of the deceased, her big toe impression was taken

on the statement Ex.PW22/A? In our view, aforesaid infirmity, if at all

it can be termed as infirmity, is no help to the appellant because if the

thumb impression of the deceased on the MLC is closely seen, then it

appears that there was some injury on the thumbs of the deceased.

Sulphuric acid is a corrosive material and once it falls on the body of a

person, it seeps into the portion of body around the point of contact

with the passage of time and affects a larger area of the body.

Therefore, it is not surprising that by 6:30 PM, reaction of acid had

caused burns on the thumbs of the deceased due to reaction of

sulphuric acid. As such the Investigating Officer deemed it appropriate

to obtain big toe impression of the deceased on the dying declaration

Ex.PW22/A just to eliminate any doubt about the identity of the person

who had made the statement.

17. Learned counsel for the appellant has also submitted that even if

it is taken that the deceased Rani did make the statement in presence

of Investigating Officer, then also it is difficult to expect that she was in

a fit state of mind to make a clear and concise statement. Expanding

on the argument, he has submitted that generally in cases like acid

burns, which cause severe pain and burning sensation to the victim,

they are administered sedatives to ease their trauma. Those sedatives

have a tendency to impact the brain function of the patient and within

a few minutes of administration of the medicine, the patient goes into

stupor. He argued, obviously, in this case also, Rani must have been

administered the sedatives like Pathedene etc. by 6:30PM, therefore

when the Investigating Officer reached at the hospital, she could not

have been in a fit state of mind to make the statement. We do not find

any merit in this contention because had that been the case, Dr. J.K.

Tyagi, PW21 would not have declared the patient fit for statement.

Even Dr. A.K. Seth, PW23, in whose presence and under whose

supervision the dying declaration was recorded, would not have

permitted the recording of said statement.

18. Next submission of learned counsel for the appellant is that the

prosecution has failed to prove the purchase of acid by the appellant.

In support of this contention, he has pointed that the shopkeeper

Inderjit Singh, PW25 could not identify the appellant in his testimony.

In the alternative, learned counsel for the appellant has submitted that

even if it is assumed that the appellant had gone to the shop of PW25,

Inderjit Singh, then also from the cross-examination of PW9 Constable

Satbir Singh it appears that on enquiry by the Investigating Officer, the

shopkeeper had told him that when the appellant went to purchase

acid from his shop, he was accompanied by one girl. This suggestion in

itself, in our view, indicates that the appellant did purchase the acid

bottle from the shop. This conclusion also finds support from the

admission of the appellant in his statement under Section 313 Cr.P.C.

in answer to Q. No.19, wherein he stated that "so far as purchase of

acid is concerned, the same was purchased on 17.05.92 itself at the

instance of Rani, along with Rani". From the aforesaid reply, it stands

proved on record that the appellant had purchased the acid from the

shop of PW25, Inderjit Singh. His only reservation is that Rani

(deceased) was along with him and the acid was purchased on

17.05.92.

19. Next submission on behalf of the appellant is that the case of the

prosecution is that the appellant poured sulphuric acid on the body of

the deceased. Whereas, as per the testimony of the Investigating

Officer, a bottle with some black coloured liquid was recovered at the

spot. He has submitted that sulphuric acid, as per testimony of PW25

Inderjit Singh, is a yellow colour liquid. Therefore, the theory of

prosecution of pouring sulphuric acid on the deceased by the appellant

is belied. The submission of learned counsel for the appellant, in our

considered view, is devoid of merit. The bottle along with the black

coloured liquid was sent to CFSL for chemical analysis and as per the

CFSL Report Ex.PW-7/L-1, the black coloured liquid contained in the

bottle did give positive tests for sulphuric acid. Thus, there can be no

doubt that sulphuric acid was actually used in the incident. Otherwise

also, in view of defence taken by the appellant in his statement under

Section 313 Cr.P.C., the acid was actually used. According to him, Rani

tried to throw acid upon him and when he slapped her, she fell down

and sustained acid burn injuries.

20. Next contention on behalf of the appellant is that the prosecution

has not been able to prove the recovery of his pant and T-Shirt Exhibits

P-11 and P-10 beyond reasonable doubt. In this regard also, it is

noticed from the statement of the appellant that he has admitted

having led the police party to the houses of Gurcharan Singh at

Khayala and his uncle Dalip Singh, PW11 at Baljeet Nagar from where

his T-Shirt Ex.P-10 and pant Ex.P-11, both having acid burns were

recovered respectively. His only explanation is that the Police has

planted those pants and shirts, though in answer to Q. No.38 in his

statement under Section 313 Cr.P.C., he admitted that the T-Shirt Ex.P-

10 and the pant Ex.P-11 belong to him. He has not explained as to why

and when those clothes were burnt due to acid. Therefore, in our view,

the learned Trial Court was right in concluding that his pant and T-Shirt

sustained acid burns in the occurrence. Otherwise also, the appellant,

as per his defence, has admitted his presence at the time of

occurrence and he has also admitted that he had sustained the burn

injuries in the occurrence, therefore, the issue of recovery of acid burnt

clothes of the appellant has lost its significance.

21. Now the question arises, whether the occurrence took place in

the manner as projected by the prosecution or in the manner as

projected by the appellant in his statement under Section 313 Cr.P.C.?

The explanation of the appellant in his statement under Section 313

Cr.P.C. is that deceased Rani was afraid that her career may not be

marred in the event of the appellant disclosing her secrets. Therefore,

she threw acid from the bottle upon him and in order to save himself,

the appellant slapped the deceased, as a result of which she fell along

with acid bottle and in the process might have sustained the burn

injuries.

22. In our view, the defence of the appellant is not plausible. If the

occurrence had happened in the manner as projected by the appellant,

then the deceased Rani had fallen along with the acid bottle and in that

eventuality, unless the bottle had broken, much acid could not have

flown out of the narrow mouth of the bottle, so as to cause 60% burn

injuries to the deceased. As per evidence on record, the bottle with

some acid was seized intact from the spot. This circumstance itself

makes the explanation of the appellant improbable. Further, it has

come in evidence that the appellant ran away from the spot after the

occurrence after bolting and locking the deceased inside the room.

The fact that the appellant escaped from the spot is established from

the testimony of PW8 Kashmir Singh, three-wheeler driver who stated

that he knew the accused, who was resident of WZ-112, Sant Nagar,

Tilak Nagar and on 17.05.92, he met the appellant near his house. The

appellant was having acid burn injuries on his hands and he told him

that he was to go to a Doctor. Thereafter, he took the appellant in his

three-wheeler scooter and the appellant alighted from his scooter at

Khayala and went away. There is no explanation of the appellant on

record as to which Doctor he had gone to for treatment and what

history he gave about his burn injuries. It is pertinent to note that he

had alighted from the three-wheeler scooter at Khayala where

Gurcharan Singh was residing and from his house, the T-Shirt of the

appellant with acid burns Ex.P-10 was recovered. This points towards

the guilty conduct of the appellant. Not only this, he had left the

injured Rani locked in the room. It was argued by learned counsel for

the appellant that the locking of Rani in the room has not been proved

because PW7, Subhash and PW16 Surinder Kumar, who were examined

by the prosecution to prove this fact have not supported the case of

prosecution and according to their version, they found Rani in a badly

burnt condition in front of the house of the appellant. Both these

witnesses were cross-examined by the learned APP and they denied

the suggestion that they took out the girl from the room after breaking

open the lock and the kunda. It is interesting to note that PW7

Subhash, in his zeal to come to the rescue of the appellant,

volunteered during his cross-examination by the learned APP that the

Police had kept the lock there at the spot and got it photographed.

Whereas, PW16 Surinder Kumar in his cross-examination by the

learned APP volunteered his opinion that the door of the room of the

accused was made of an iron-sheet and kunda of the said door could

not be separated. If the witnesses, for the reasons best known to

them, have opted not to support the case of the prosecution, that by

itself, in our view, is no reason to reject the testimony of police

witnesses. PW22, SI Babu Ram is categorical in his testimony that

when he reached at the spot, one lock make Nelson and kunda were

lying outside the house No.WZ-112, Sant Nagar, Tilak Nagar and those

were taken into possession by him after converting them into sealed

packets vide memo Ex.PW22/D. PW28, Constable Atma Ram has also

corroborated his version. We find no reason why these two witnesses

would try to create false evidence against the appellant, particularly

when no family member of the deceased was present at that time nor

they had any axe to grind with the appellant. Thus, in our view, the

learned Trial Court has rightly believed the prosecution evidence to the

effect that the deceased was taken out of the room after breaking open

the kunda of the door, which was obviously locked from outside by the

appellant while going away from the spot.

23. In view of the discussion above, we do not find any reason to

suspect the veracity of the dying declaration of the deceased

Ex.PW22/A and we are of the view that the learned trial Judge has

rightly relied upon the same. In the matter of Manu Raja Vs. State of

MP, AIR 1976 SC 2199, it was held by the Supreme Court that it is

neither a rule of law nor of prudence that a dying declaration cannot be

acted upon without corroboration. In Narain Singh & Anr. Vs State

of Haryana, AIR 2004 SC 1616, it was held that the dying declaration,

if found reliable, can form basis of conviction. In the instant case, from

the evidence on record, we do not find any reason to suspect the

reliability of the dying declaration Ex.PW22/A. Therefore, in our

considered view, the learned Trial Court has rightly found the appellant

guilty of pouring acid on the deceased.

24. Lastly, it is submitted by learned counsel for the appellant that

from the facts of the case, if those are taken to be true, it is apparent

that the appellant committed the act of pouring acid on the deceased

in the heat of passion without any intention to kill her. At best the

intention of the appellant was only to deface the deceased to make her

incapable of marrying anyone else as she was not ready to marry him.

Thus, he has urged us to conclude that her case falls within 4th

Exception to Section 300 IPC. As such the conviction under Section 302

IPC is not justified and it should have been under Section 304 Part I IPC.

In support of this contention, he has relied upon the judgments in

Vineet Kumar Chauhan Vs State of Uttar Pradesh, (2007) 14 SCC

660, Ruli Ram & Anr. Vs State of Haryana, (2002) 7 SCC 691,

Jagat Singh Vs State of Haryana, (1977) 1 SCC 225, Dharman Vs

State of Punjab, AIR 1957 SC 324: 1957 Crl.LJ 420, Basdev Vs State

of PEPSU, 1956 SCR 363: AIR 1956 SC 488: 1956 Crl.LJ 919 (2),

Chamru, Son of Budhwa Vs State of Madhya Pradesh, AIR 1954

SC 652: 1954 Crl.LJ 1676, Rajinder Vs. State of Haryana, (2006) 5

SCC 425 and State of UP Vs Jodha Singh & Ors, (1989) 3 SCC 465.

25. In order to appreciate the submission of learned counsel for the

appellant, we deem it necessary to have a look at 4th Exception to

Section 300, which is reproduced thus:

"Section 300. Murder

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Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner."

------

------

26. A plain reading of the above provision shows that in order to take

advantage of above Exception, the appellant is required to show that

the act committed by him was without any pre-meditation in a sudden

fight, it was committed in the heat of passion upon a sudden quarrel

and the appellant had not taken undue advantage or acted in a cruel or

unusual manner.

27. Perusal of the dying declaration Ex.PW22/A shows that the

appellant had called the deceased to his room on the pretext of

discussing a dance programme offer. He asked the deceased to marry

him and threatened that in the event of her refusal, he would finish her

and when the deceased declined the offer, he poured acid upon her

from a bottle which he had procured earlier. From the above sequence

of events, it is obvious that that the appellant had not only acted in a

pre-meditated manner, but he had also acted in a cruel manner. Not

only this, he had acted in a cruel manner because even if the

deceased, by the grace of God had survived, her life would have been

ruined because of de-figuration due to corrosive action of the acid.

Therefore, in our considered view, the aforesaid heinous act committed

by the appellant does not fulfil even a single requirement of 4th

Exception to Section 300 IPC. We have gone through the judgments

cited by learned counsel for the appellant and, in our considered view,

all those judgments are based upon their own peculiar facts and the

factual matrix distinct from the facts of this case. Thus, we find no

reason to extend the benefit of 4th Exception to Section 300 to the

appellant.

28. In view of the above discussion, we find no infirmity in the

impugned judgment. The learned Trial Court has rightly convicted the

appellant under Section 302 IPC. Therefore, there is no reason to

interfere with the impugned judgment.

29. The appeal is devoid of merit. It is accordingly dismissed.

30. The appellant is on bail. His bail bond and surety stand

cancelled. We direct the appellant to be taken into custody and sent to

Jail to undergo remaining period of his sentence.

AJIT BHARIHOKE, J.

NOVEMBER 03, 2009                         SANJAY KISHAN KAUL, J.
pst