Mohd. Ishtiyaq & Anr. vs State & Ors.
2011 Latest Caselaw 3427 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                          RESERVED ON: 20.05.2011
                                                       PRONOUNCED ON: 19.07.2011

+                                    CRL.A. 129/1998

       MOHD. ISHTIYAQ & ANR.                                             ..... Appellant

                             Through: Sh. Jatin Rajput, Advocate.

                                            versus

       STATE & ORS.                                                    ..... Respondents

Through: Sh. Lovkesh Sawhney, APP.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE G.P. MITTAL

1.     Whether the Reporters of local papers         YES
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?            YES

3.     Whether the judgment should be                YES
       reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT
%

1. The appellants Mohd. Ishtiyak and Bhurey impugn the judgment and order dated

27.02.1998, of the learned Additional Sessions Judge, Delhi, in S.C. No. 23/1996 by which they

were convicted for the offences punishable under Section 302/324 IPC. They were sentenced to

undergo Rigorous Life Imprisonment and to pay a fine of `10,000/- in default of which they

would further undergo six months of Rigorous Imprisonment.

Crl.A.129/1998 Page 1

2. The prosecution case is that the deceased (Yusuf) was burnt alive by Mohd. Ishtiyak and Bhurey, (the appellants). On 12.09.1989 at about 01:30 AM, PW-15 constable Virender Singh informed the police station at Gokalpuri that Yusuf had been admitted to GTB hospital in a burnt condition by PW-1 Gajraj Singh and Parmal Singh. DD No. 24A was recorded and PW-21,SI Murlidhar Meena along with PW-17 Constable Om Pal Singh reached the hospital for investigation and collected the deceased's MLC. The deceased was declared fit to make a statement (he was suffering from 90% burns) and PW-21 recorded his statement which later was treated as a dying declaration-as the deceased died within a few hours of the statement. The statement was recorded in the presence of a doctor and the same was attested by him. In the dying declaration, the deceased stated that he was a mechanic and a partner of the appellants and that on the night of the incident the appellants demanded ` 500/- from him, which he refused to pay. On this the appellant Mohd Ishtiyak called him to his house. He further stated that when he reached the house of Mohd. Ishtiyak, the appellant Bhurey poured kerosene oil on him whereas Mohd Ishtiyak set him ablaze. On the basis of this statement, FIR No. 288/89 was registered at PS Gokalpuri for the offence under section 307/34 IPC. However the offence was later converted to one under section 302 IPC as the deceased succumbed to his injuries at GTB hospital at about 08:45 PM. A charge was framed against the appellants by the Trial Court for the offence punishable under section 302/34 IPC. The appellants pleaded not guilty and claimed trial.

3. To prove its case the prosecution examined 22 witnesses out of which three witnesses turned hostile (PW-1 Gajraj Singh, PW-2 Intizar and PW-3 Zahiruddin). PW-4 Akhtar Ali (brother of the deceased), PW-5 Mahesh Pal (owner of the scooter which was given to the deceased for repairing work), PW-6 Dr. Raman Tyagi (witness to the dying declaration recorded by the IO) and PW-21 Inspector M.D. Meena (IO who recorded the dying declaration of the deceased) are the material witnesses.

4. PW-4 Akhtar Ali, the deceased's brother deposed that he (the deceased) was running a scooter repair shop in partnership with the appellants. In the month of September 1989, somebody came to him in the night and informed him that his brother (the deceased) had been burnt by his partners. He went to the house of the appellants and inquired about his brother;

Crl.A.129/1998 Page 2 somebody from the mohalla informed him that his brother had been taken to a hospital near Nand Nagri. He further deposed that he spoke to the deceased who told him that the two appellants had tried to take away ` 500/- from him which he (the deceased) had received from a customer for repair work. The deceased further told PW-4 that when he (the deceased) refused to give the money to the appellants they beat him in the abdomen with a brick and one gagged his mouth and the other poured kerosene oil on him; and thus set him ablaze. PW-4 further stated that before going to the hospital he went to the police station where the police told him to go to the hospital. The next day, in the morning, PW-4 went to the appellant's house from where the police seized some items in his presence. In his cross-examination PW-4 denied having stated that his brother told him that the appellants beat him in the abdomen with a brick. He further denied having stated that his brother told him that one of the appellants had gagged his mouth.

5. The prosecution examined PW-5 Mahesh Pal to prove that the deceased had taken a sum of ` 500/- from Mahesh Pal for the purpose of repair work. PW-5 deposed that in the month of August or September 1989, he had given his scooter for repairs to the deceased Mohd. Yusuf; he had paid the deceased a sum of ` 500/- for the said work. He further deposed that the deceased had promised him that he would repair the scooter in 8/10 days. When the deceased did not return the scooter, he visited the deceased who told him that he would himself come and return the scooter after two days. He further deposed that when the deceased did not come and return the scooter in two days, he searched for him and it is then that he found out that the deceased had been murdered by someone.

6. PW-6 Dr. Raman Tyagi, a witness to the dying declaration recorded by the IO (PW-21) deposed that on the night of 11.09.1989 he was on duty in the casualty department of GTB Hospital. One patient, Mohd. Yusuf (the deceased) was brought to the hospital with 90% burns and his condition was so serious that his chances of survival were very poor. He deposed that he informed the SDM and requested him to come to the hospital and record the statement of the patient; the SDM told him that the police would record the patient's statement and he (PW-6) should attest the same. He stated that the patient's statement Ex.PW-6/A was recorded by an Inspector at about 02:15 AM and he attested the same; the thumb impression of the patient was

Crl.A.129/1998 Page 3 also taken in his presence. He further deposed that the patient was capable and fit enough to make a rational statement and the statement recorded by the IO was read over to the deceased. In the cross examination, PW-6 states that the deceased's hands were burnt and had boils on them. He further states that the deceased was withering with pain but was still in a condition to speak. He admits that almost all the vital parts of the body were having burns. PW-6 states that he spoke to the SDM but was not able to give the particulars and name of the SDM he spoke to. However he stated that it was the duty constable who put him through to the SDM. He admits that before the police officials came, the deceased had told him (PW-6) that the appellants Bhurey and Mohd. Ishtiyak had burnt him. He further admitted that the thumb impression of the deceased was taken when the skin had slightly peeled off but he clarified that there was no boil on it.

7. PW-21 the IO of the case deposed that on 12.09.1989 on receipt of DD No. 24A at about 01:35 AM he along with constable Om Pal went to GTB hospital and received the MLC of the deceased. He deposed that he recorded the statement of the deceased Ex.PW-6A in the presence of PW-6. The statement of the deceased was read over to the deceased by him; the deceased admitted the statement to be correct and gave his thumb impression on the statement. He obtained PW-6's endorsement on the deceased's statement and got the FIR registered at PS Gokalpuri. He further deposed that the spot was inspected, photographed and some items were seized from the place of incident. He sent the body for post mortem examination on 13.09.1989 and after receipt of the post mortem report he handed over the body to the relatives. He further deposed that it is incorrect that the last sentence of the deceased's statement " yeh vakya samay karib 11 baje ka hai, Bhurey ke kamre ka" was included by him on his own and was not a part of the deceased's statement. He was not able to remember the name or other particulars of the SDM of that area.

8. The dying declaration recorded by PW-21, (PW-6/A) and witnessed by the doctor, PW-6 states that the injured Mohammed Yusuf used to work as a scooter mechanic, in partnership with the Appellants. He stated that he had been give ` 500/- to do some repair work, which the Appellants wanted him to give to them. He refused; later, when he went to their place, Ishtiaq and Bhure together poured kerosene oil and set him on fire.

Crl.A.129/1998 Page 4

9. Mr. Jatin Rajput learned counsel for the appellant submitted that the dying declaration before PW-4 cannot be relied on as he is the deceased's brother. Further according to the prosecution PW-1, 2 and 3 were also witnesses to the dying declaration made before PW-4 but none of them supported the prosecution's version and hence the dying declaration made before PW-4 the brother of the deceased cannot be relied upon. PW-4 had deposed that the deceased had told him that the appellants had hit him in the abdomen with a brick however the MLC and the Post Mortem Report do not mention any such injuries. Therefore, submitted the counsel that the testimony of PW-4 should not be relied upon.

10. The counsel for appellant further submitted that the dying declaration recorded by PW-21 should also not be looked into. It was submitted that both the hands of the deceased were burnt and had boil marks, therefore it would not have been possible for the deceased to have made a thumb impression on the dying declaration, however the dying declaration had a thumb impression which creates a doubt on the credibility of the dying declaration. It was further submitted that the deceased was not in a fit state of mind to have made the statement as he was suffering from 90% burns and had been administered with pathedine at the time of his admission to the hospital. PW-21 did not call the SDM to record the statement and instead recorded it on his own. This casts a shadow of doubt on the statement recorded by him. It was argued that effort should have been made by the police to have the statement of the victim, (recorded- by the SDM) since the deceased lived for over 15 hours after the incident. Learned counsel for the appellant also argued that the dying declarations could not have been believed. It is submitted that PW-4 reached the hospital, at about 1-30 AM to 2-00 AM, when three persons were already there. The dying declaration was allegedly recorded at 2:15 AM. In these circumstances, the possibility of manipulation and tutoring could not be ruled out. It was further submitted that the time gap between the incident (11:30 PM) and the admission of the deceased to the hospital (01:00 AM) has not been explained.

11. It was urged that the prosecution could not prove the motive alleged by it, since the story of the deceased owing ` 500/- or any other amount, to the appellants had not been substantiated. Counsel emphasized that in any case, even if it were assumed that such amount was owed, it was far too trivial, without anything more, to constitute a motive for murder, as alleged by the

Crl.A.129/1998 Page 5 prosecution. Counsel highlighted that since the impugned judgment is substantially based on the dying declaration, the motive alleged by the prosecution had to be established. Unlike a case where direct eye witness testimony is forthcoming, a prosecution based on dying declaration, has to establish motive. It was urged, in addition, that for a court to rely on the dying declaration, without any corroboration, the possibility of tampering and manipulation or creation of a false story ought to be completely eliminated. Here, submitted counsel for the appellants, the MLC Ex. PW-21/A mentioned only the role of Mohd. Ishtiyak. Later, the prosecution version was changed, and in the dying declaration, Bhurey was also roped in (in Ex. PW-6/A). Furthermore, argued the counsel, the prosecution witnesses sought to incrementally improve on the previous versions recorded in the statements. Arguing that this is a fatal infirmity to the entire case against the appellants, their counsel submitted that firstly the prosecution sought to prove its case of the deceased being called to Bhurey's house, his being asked about the money, and his later being allegedly burnt. However, PW-4 later urged -contrary to his Section 161 Cr. PC statement, that the deceased was severely beaten with bricks, and later burnt, after kerosene was poured.

12. It was submitted that the second dying declaration is a clear improvement over the first. The witness, PW-6 stated that the details were given to IO; the latter, however, does not mention anything of the sort.

13. Learned counsel submitted that the Trial Court overlooked material circumstances that the appellant did not flee from the spot, and that no finger print was found or lifted from the stove. Similarly the tin containing the kerosene was not recovered. PW-3/B stove was recovered; however, PW-3 did not support the prosecution on this. The recovery of match sticks, burnt clothes, earth control, slippers, a nylon shirt, were irrelevant in these circumstances. It was urged that the finger print report of the prosecution was relevant, but was not placed on record. Its non production severely dented the prosecution version. In this respect, about the recoveries, counsel highlighted that PW-4 deposed that his signatures were taken in the police station, after seizure of articles.

14. The Learned counsel lastly urged that the fitness of the state of mind of the victim making a dying declaration is an important aspect, which has not been conclusively proved in the present case. Therefore, he argued, the court could not have relied on it. Reliance was placed on

Crl.A.129/1998 Page 6 the judgment of the Supreme Court, in Laxmi v. Om Prakash,(2001) 6 SCC 118 where it was held that:

"One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. "

15. The learned APP, argued on behalf of the State, and submitted that the Trial Court findings do not warrant any interference. It was urged that PW-5's statement does not say that he had any dealing with the accused. He mentioned that the money was given to Yusuf, in his shop. Therefore, the argument that any dealings took place where the money was owed, to the appellants, which constituted motive for the offence, was not relevant. It was argued that the appellants admitted to the fact that the deceased had been called to Bhurey's house, and that the room had been bolted. The APP further submitted that both the appellants are brothers, and were living together.

16. The learned APP next refuted the appellants' submission about the scope of tutoring the deceased or any witness, while recording the dying declaration. Here, it was argued that PW-1 and PW-2 had accompanied the deceased when he was taken to the hospital; they were not family members. They were independent, and had no reason to be partisan, nor was any such suggestion given to them. Similarly, urged the APP, PW-6 attested the dying declaration. He was a wholly independent witness, being a doctor. The appellants had not put anything to him, in cross examination to elicit motive to act in a partisan manner, either against them, or to favour the victim's family. Under these circumstances, there was no reason to disbelieve his testimony.

17. It was urged by the APP, that no suggestion was given to PW-4 that the dying declaration was recorded in his presence, or he came to know about it. Also, no suggestion was given to PW- 6 or PW-21 to the effect that family members were present, when the dying declaration was recorded. On the other hand PW-21 says that only he and doctor were present when the dying declaration was recorded. PW-6 also corroborates this. The cumulative effect of these testimonies was that the prosecution had proved that the dying declaration was made by the deceased, and that there was nothing in the surrounding circumstances, to disbelieve it.

Crl.A.129/1998 Page 7

18. The prosecution urged that the decision in Laxman v. State of Maharashtra,(2002) 6 SCC 710 has now established that there is no legal requirement about a doctor, or anyone having to record, on the dying declaration, that the patient or injured, was "fit" or "conscious" or "oriented" to make a statement, and that such certification or statement could be made in court. It was urged that the court should be satisfied that the dying declaration was made voluntarily, truthfully, and the injured person wanted to state what was actually recorded. In Laxman it was held that:

"Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. "

19. In this case, the prosecution had relied on evidence of PW-1 and 2, who it alleged, had accompanied the injured to the hospital. However, they were declared as hostile in the Court. PW-3 deposed that on the day of the incident, when he returned home, he saw Bhure sleeping and Mohd. Ishtyak told him that the decased had taken Rs. 500/- from a customer for repairing a scooter and did not do the work. PW-3 claims to have asked the deceased to do the repair job and that the latter agreed. PW-3 further deposed that Mohd. Yusuf, the deceased, went to sleep in Bhure's room and ten minutes later, saw flames coming out from that room. PW-3 had rented the room to Bhure. PW-3 and his wife woke-up, went and saw Mohd. Yusuf burning and he was holding a cloth in his hands. They extinguished the fire, put him on a cot; he stated that PW-1 and PW-2 went to the police station and then to the hospital, with the deceased. He further deposed that the deceased had set himself ablaze. Significantly, he does not mention the basis of this statement. This aspect is important, because he lived in a separate place, and does not state Crl.A.129/1998 Page 8 whether the deceased told him that he (the deceased) had set himself on fire. PW-4, the deceased's brother deposed that at 12 midnight someone went to his place and informed him that the deceased had been burnt by his partners Mohd. Ishtiyak and Bhure. He along with other family members made enquiries about Mohd. Yusuf Ali, and they became aware that he had been admitted to the hospital. All of them went to the hospital, where Yusuf Ali had been admitted. He deposed to having talked to Mohd. Yusuf Ali, who said that some customer had given him ` 500/- to do some repair work and that Bhure and Mohd. Ishityak went with him inside and tried to snatch that amount. PW-4 mentioned for the first time that Mohd. Yusuf Ali had been beaten with bricks and set aflame. He was confronted on this aspect as also the facts pertaining to payment of ` 500/-, and the alleged snatching by the accused of the amount with him. PW-4, in his cross-examination, also stated that the deceased had told him in the hospital that he had been stripped naked and after that kerosene oil was poured on him and he was set on fire.

20. A significant fact which the Court notices in this context is that PW-3 mentioned that the deceased went to Bhure's room. This aspect has been in fact corroborated by both the appellants in their statement under Section 313. The explanation afforded by them in reply to the Court's query as to whether anything had to be said is in identical terms. The statement of Bhure, in reply, reads as follows:

"XXXXXX XXXXXX XXXXXX My brother Mohd. Ishtiaq and Mohd. Yusuf were working near each other. Mohd. Yusuf took Rs. 500/- from a customer on the guarantee o my brother for the repair of his scooter about three months back of the incident in two instalments. He did not repair the scooter nor returned his money. That customer had abused my brother Ishtiaq and asked for returning his money back. My brother then contacted Mohd. Yusuf who got agreed to meet that person and thus he came to our house and agreed to sleep at our place and after taking meals, went to sleep in the room of my house with the understanding that he would meet that customer in the morning. So my brother bolted the room from outside so that he may not run away. I was not present at my room. My brother went away to his house. Mohd. Yusuf put kerosene oil on his banian and pant.

He had put his shirt on the cot. He took a small piece of cloth and soaked it in kerosene oil & put it on fire and shouted so that someone may come and may open the bolted room so that he may come out and run away. In the said process,

Crl.A.129/1998 Page 9 his clothes contacted fire flame and thus he was burnt. The landlord of the house tried to save me. Mohd. Yusuf had set himself on fire so that he may set free but due to misfortune he met with his fate. I and my brother Ishtiaq at our own accord went to the P.S. where we were detained and later on falsely implicated in this case. We are innocent.

XXXXXX XXXXXX XXXXXX"

21. The combined effect of depositions of PW-3 and the appellant's stand before the Court after conclusion of prosecution evidence, therefore, establish that the deceased went into Bhure's room. Both the appellants stated that the deceased had taken ` 500/- from a customer (PW-5, who confirmed this aspect in the deposition and corroborated having given ` 500/- for the repair job). The appellants also confirmed that the deceased was confined in Bhure's room, which was bolted from outside so that the deceased could not run away. Bhure admitted that he was not present in the room and that Mohd. Ishtiyak bolted the room from outside. These facts assume considerable significance in the light of the statement made by the deceased in his dying declaration. Among the prosecution witnesses, even though PW-1 and 2 turned completely hostile, PW-3 admitted having gone along with Gajraj and Intzar to the police station and then to the hospital. He is undoubtedly an independent witness.

22. The MLC (Ex. PW-21/A) was recorded at 1:10 AM. It bears a noting that the patient had a history of being burnt by his partner, Mohammed Ishtiyak. The MLC also bears an endorsement that the patient was fit to make a statement and contains the observation that he had 90% superficial to deep burns. The doctor, who asked the questions, in the dying declaration, PW-6 Dr. Raman Tyagi, corroborated the MLC fully, and confirmed to the prosecution version and deposed having examined the injured, who was in a serious condition, and whose survival chances were very slim. He also deposed to informing the SDM and requesting him to reach the hospital. The SDM however, instructed him to have the statement recorded by the police officer, and that he (PW-6) ought to attest it. The dying declaration was marked as Ex. PW-6/A. In cross examination, he stated having been with the deceased for about 35-45 minutes. His testimony about talking to the deceased, and his having received instructions and acting upon it, while recording the dying declaration, remained unshaken. He also stated that "Before the police officer had come, I had made enquiries from the patient who told me that he had been burnt by two persons Bhure and Ishtiaq..." He also deposed that this was not separately recorded by him.

Crl.A.129/1998 Page 10 To a specific query, in cross examination, the witness deposed that the last sentence of the statement (Ex. PW-6/A) was recorded by the police in response to the query as to where and when the incident had taken place. PW-21, the IO, corroborated PW-6's deposition in all material particulars.

23. There can be no hard and fast rule that victims of severe burn injuries cannot make statements, which turn out to be dying declarations later, recounting the manner of a criminal attack. ( Ref. Padmaben Shamalben Patel v State of Gujarat 1991 (1) SCC 744; Charipalli Shankarrao v Public Prosecutor, High Court of AP 1995 Supp (4) SCC 24). Much depends on the medical condition of the individual, her (or his) coherence to make the statement, and alertness in making it. The testimony of a doctor, in this regard, is crucial in every case, where the prosecution relies on a dying declaration of an accused. The decision in Laxman (supra) by a larger Bench of the Supreme Court has now settled the legal position that courts should not adopt a stereotypical approach, insisting that the doctor in attendance or one who examined the injured must necessarily state on the document that the patient was in a conscious and fit state of mind to record a statement. The test to be adopted is the credibility and quality of the prosecution's witness, rather than the existence or otherwise of a few ritualistic words on the document. If the doctor deposes that the patient was fit to make a statement, it is sufficient. Applying that test, the court holds that the Appellants' submissions in this regard are without merit. PW-6 deposed to having asked the questions to the deceased, who was conscious and fit to make a statement. PW- 21 confirms to having recorded the statement by the deceased. In addition, the deposition of PW- 3 proves the fact that the deceased was not taken by his relatives to the hospital. This rules out the possibility of tutoring, since PW-21/A (the MLC) itself mentions the cause of death as burning by Mohd. Ishtiaq. That document was prepared at 1:10 AM. PW-6 is an independent witness; he had no motive, or any axe to grind, and withstood the cross examination on behalf of the Appellant. In these circumstances, the court is of opinion that the prosecution has proved that the dying declaration implicating the Appellants was recorded, in the manner alleged by it.

24. The next important question is as to the veracity of the contents of the dying declaration. Here, the Appellant's submissions that Bhure's role has not been described in the MLC, and the

Crl.A.129/1998 Page 11 lack of clarity about the motive, and the further fact that the story of the deceased being beaten with bricks, have to be carefully considered. Undoubtedly, Bhure the second Appellant, has not been mentioned in PW-6/A. However, PW-3 mentions about seeing him on the day of the indent, shortly before the actual occurrence. Bhure was his tenant. Both Bhure and Mohd. Ishtiaq admit, in their statement under Section 313, Cr. PC, that the deceased had gone to their place, and that he had slept there; they also state that since he had the ` 500/- given by a customer, whose work had not been done by him, they wanted to ensure that he did not disappear, and consequently bolted the door (of the room) from outside. These, coupled with the circumstance that the Appellants are brothers, and were partners of the deceased, clearly establish Bhure's presence at the time and place of the incident. PW-5 deposed to having paid money to the deceased for doing a repair job, and the latter not having performed it. If these facts are taken into consideration, the further detail of whether PW-5 had any dealing with the Appellants, or had asked them to get the amount refunded, is immaterial, and any lack of proof of that would not ultimately impact the prosecution story, because in the dying declaration, the deceased clearly mentioned receiving some money, the Appellants asking for it, his refusal, and their setting him on fire. Taken together, the contents of the dying declaration therefore stand the test of credibility.

25. Once the prosecution established the essential facts, in this case, if the Appellants had any explanations to offer, especially in the light of the facts mentioned by them under Section 313, Cr. PC, the onus to give such explanation was on them, by virtue of Section 106. The incident occurred in Bhure's room; he was PW-3's tenant. Both the appellants admitted that the deceased was in their room, when the incident occurred. No evidence was led by them to show the circumstances under which the deceased set fire to himself, as stated by them. The plea taken by the Appellants in their statements U/S 313 Cr.P.C. that the deceased soaked a small piece of cloth in kerosene and put it on fire and shouted so that someone may come and open the bolted room is neither credible nor able to create any doubt in prosecution version.

26. In view of the above discussion, the court is of the opinion that the conviction and sentence returned by the Trial Court do not call for interference. The appeal, being unmerited has to be dismissed. The appellants shall present themselves before the concerned Trial Court on

Crl.A.129/1998 Page 12 12.08.2011 and surrender to serve the remainder of the sentence. The Registry shall forthwith transmit the Trial Court's record for appropriate follow up and action. The appeal is dismissed in the above terms.

                                                                 (S.RAVINDRA BHAT)
                                                                                 JUDGE




JULY 19, 2011                                                             (G.P. MITTAL)
                                                                                  JUDGE




Crl.A.129/1998                                                                         Page 13