Bombay High Court
Vasant Bhikaji Bodke And Ors vs The State Of Maharashtra on 18 July, 2018
Author: Sarang V. Kotwal
Bench: B. R. Gavai, Sarang V. Kotwal
1 APEAL 445-14 Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.445 OF 2014
1. Vasant Bhikaji Bodke. ]
Age - 69 years, Occupation - Agriculture, ]
R/at - Bahuli, Potewadi, Post - Sangrun, ]
Taluka - Haveli, District - Pune. ]
2. Vilas Vasant Bodke. ]
Age - 31 years, Occupation - Driver, ]
3. Kailas Vasant Bodke. ]
Age - 29 years, Occupation - Service, ]
4. Sudam Vasant Bodke. ]
Age - 38 years, Occupation - Service, ]
5. Suresh Vasant Bodke. ]
Age - 35 years, Occupation - Milk Business, ]
Nos.2 to 5 - Residing at Jai Bhawani Nagar, ]
Chawl No.7B, Room No.4, Near Rambaug ]
Colony, Kothrud, Pune. Original inhabitants ]
of Bahuli, Potewadi, Post - Sangrun, ]
Taluka - Haveli, Dist. - Pune. ]
(All are at present lodged at Yerawada ] ... Appellants
Prison, Pune) ] Orig.Accd.Nos.1 to 5
Versus
The State of Maharashtra. ]
(Vide Sessions Case No.164 of 2010, ]
arising out of C.R.NO.549 of 2009 ]
registered at Haveli Police Station, Pune) ] ... Respondent
Mr. Satyavrat Joshi a/w Mr. Nitesh J. Mohite for Appellants.
Mrs. S. S. Kaushik, APP for State.
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CORAM :- B. R. GAVAI &
SARANG V. KOTWAL, JJ.
DATE :- 18 JULY, 2018
JUDGMENT (PER SARANG V. KOTWAL, J.) :-
1. The Appellants / original accused nos.1 to 5 have preferred this Appeal challenging the Judgment and Order dated 27/03/2014 passed by the learned Extra Joint Ad-hoc Additional Sessions Judge - 1, Pune, in Sessions Case No.164 of 2010. By the impugned Judgment and Order, the Appellants / original accused nos.1 to 5 were convicted as under :
For the offence punishable under Section 147 of the IPC, the Appellants were convicted and sentenced to undergo simple imprisonment for five months and to pay a fine of Rs.500/- each and in default of payment of fine, to undergo further S.I. for 15 days.
For the offence punishable under Section 148 of the IPC, the Appellants were convicted and sentenced to undergo simple imprisonment for ten months and to pay a fine of Rs.1,000/- each and in default of payment of fine, to undergo further S.I. for one month.
For the offence punishable under Section 341 read with 149 of the IPC, the Appellants were convicted and sentenced to URS 2 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 3 APEAL 445-14 Judgment.doc undergo simple imprisonment for one month and to pay a fine of Rs.200/- each and in default of payment of fine, to undergo further S.I. for six days.
For the offence punishable under Section 307 read with 149 of the IPC, the Appellants were convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- each and in default of payment of fine, to undergo further S.I. for one month.
For the offence punishable under Section 302 read with 149 of the IPC, the Appellants were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/- each and in default of payment of fine, to undergo further S.I. for two months.
All the substantive sentences were directed to run concurrently. The accused were given set off for the period already undergone by them in custody.
Along with the present accused, there were 8 other accused who had faced the trial. Accused nos.6 to 13 were acquitted of all the charges framed against them. They were charged for commission of the same offences for which the present Appellants URS 3 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 4 APEAL 445-14 Judgment.doc were convicted. The present Appellants were the original accused nos.1 to 5 in the said sessions case. The Appellant No.1 is the father of the remaining Appellants.
2. The prosecution case, in nutshell, is as follows :
Complainant Laxman and his brother Ramdas (deceased in the present case) were residing together with their parents, their sister Deepali and Ramdas's wife Pallavi. They were cultivating an agricultural land as a source of their livelihood. Ramdas's mother had an ancestral agricultural land originally belonging to her grandfather Genu Bodake. Out of the said land, half portion was cultivated by the deceased and his family and the other half was cultivated by the Appellant No.1 Vasant. It is the case of the prosecution that the Appellant No.1 had got his name entered in the records in respect of the said land and therefore, there was a dispute between the Appellants' family on one hand and the deceased's family on the other. On 08/08/2009, Ramdas's maternal grandmother expired and when the family of the deceased was returning after performing the last rites, the Appellant No.1 threatened them and told them that he would not allow them to enter the agricultural land. A quarrel ensued URS 4 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 5 APEAL 445-14 Judgment.doc and the villagers pacified them. On the same day in the evening on 08/08/2009 at about 8.00 p.m., deceased Ramdas and his brother Laxman, the first informant in this case, were proceeding towards Kelewadi, Kothrud on a motorcycle. Their parents were walking on the same road. When the deceased Ramdas reached near Bhairoba Mandir bus stop at Kotewadi, the Appellants and 10 to 15 others came in two cars and intercepted their motorcycle. Ramdas fell down.
Laxman ran away from the spot and took shelter in the temple nearby. Ramdas was assaulted by all the accused and the Appellants with dangerous weapons like sickles, swords, iron rods and sticks. Ramdas gave shouts for help. His parents who were at some distance behind, walking on the road, rushed there to find that Ramdas was lying in a pool of blood in a ditch. Even the parents were beaten with those weapons and then the accused went away from the spot. Laxman who was hiding in the temple, came out, went home and brought his other family members and carried all the injured to Lodha Hospital at Warje. Ramdas was shifted to Sahyadri Hospital for further treatment but he died after 5 days i.e. on 13/08/2009. Laxman gave his statement in the same night and FIR was lodged at Haveli Police Station vide C.R.No.549 of 2009 at 12.30 a.m. on 09/08/2009. After URS 5 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 6 APEAL 445-14 Judgment.doc registration of the FIR, spot panchanama was conducted at the spot which was at Bahuli Mutha Road near Bhairavnath temple. The Appellants and the other accused were arrested during the course of the investigation. The police recovered and seized various weapons, clothes worn by the accused and the Maruti van at the instance of different accused. Some Call Detail Records were collected and at the conclusion of the investigation, the charge-sheet was filed. As the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions for trial. The case was tried vide Sessions Case No.164 of 2010 before the learned Extra Joint Ad-hoc Additional Sessions Judge - 1, Pune. At the conclusion of the trial, the Appellants were convicted and the other accused were acquitted as mentioned earlier.
3. We have heard Mr. Satyavrat Joshi, learned Counsel for the Appellants and Ms. S. S. Kaushik, learned APP for State. With their assistance, we have read the evidence and perused the impugned Judgment.
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4. During trial, the prosecution examined 26 witnesses. Out of them, most witnesses were panchas for various recovery and seizure panchanamas. Most of these witnesses had turned hostile and did not support the prosecution during trial. However, nothing turns on their evidence as it is a case of direct evidence consisting of the depositions of PW 7 Mangal Jori who was the mother of the deceased and an injured eye witness, PW 9 Subhash Jori who was the father of the deceased and an injured eye witness and PW 8 Laxman Jori who was the first informant and claimed to be an eye witness. The entire prosecution case sails through or sinks depending on the quality of their evidence. PW 17 Dr. Pravin Jain was attached to Sahyadri Hospital and has deposed about the treatment given to the deceased Ramdas when he was admitted to Sahyadri Hospital. PW 18 Dr. Naresh Lodha had examined PW 7 and PW 9 for their injuries. PW 19 Dr. Nitin Patil had conducted post-mortem examination on the dead body of Ramdas. PW 20 Mohan More, PW 21 Vasant Babar, PW 22 Satish Patil, PW 25 API Raju Pachurkar and PW 26 PSI Pandurang Jhakne had taken part in the investigation at various stages. PW 23 Ravi Pardesdhi and PW 24 Dattaram Angre were the officers from the telephone service provider companies. The defence of the Appellants URS 7 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 8 APEAL 445-14 Judgment.doc and the other accused was of total denial. After recording the evidence and the statements of the accused, the learned trial Judge heard the arguments and passed his Judgment and Order.
5. As mentioned earlier, the evidence of PW 7, PW 8 and PW 9 is important for the decision of this Appeal. PW 8 Laxman Jori was the first informant. He has deposed that the Appellant No.1 was a cousin of his mother Mangal. Mangal's mother Chandrabhaga was having 1 acre of agricultural land but it stood in the name of the Appellant No.1. The land was admeasuring 1 acre and was divided into four parts. Out of those, two parts were cultivated by the Appellants and the other parts were cultivated by the family of PW 8. Afore-mentioned Chandrabhaga was staying with PW 8's family and sometime with Mangal's sister Kamal. According to PW 8, the Appellant No.1 wanted to usurp the remaining two parts of the land. He has further deposed that on 08/08/2009, his grandmother Chandrabhaga died around 10.00 a.m. At about 3.30 p.m., PW 8's family were returning after performing last rites. At that time, the Appellant No.1 abused them and threatened them that he would not allow them to enter the land. At about 8.30 p.m., PW 8 and Ramdas URS 8 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 9 APEAL 445-14 Judgment.doc left their house on a motorcycle for going to Kelewadi. When they reached near Bhairavnath temple, one Maruti van and one Indica car came there and intercepted them. One vehicle was in front of their motorcycle and the other was behind and thus, they were caught between the two vehicles and therefore, could not proceed further. The headlights of the vehicle at the back were on and PW 8 saw that the Appellant No.4 got down with a sword. PW 8 got scared and ran away from the spot and hid himself in the temple which was approximately 40 ft. away. The Appellant Nos.2, 3 and 5 got down from their vehicle carrying swords. Along with them, 7 to 8 more persons alighted. All of them started assaulting Ramdas with swords. Appellant Suresh was holding a sickle and the Appellant Vilas was holding an iron rod. PW 8 has further deposed that the Appellant No.1 Vasant came there with an axe. Ramdas gave shouts for help. PW 8's parents came running there. At that time, the Appellant No.1 assaulted PW 8's mother Mangal on her back and hand and the other Appellants and other accused assaulted his father with their weapons. Thereafter, all the accused ran away from the spot. PW 8 then went to his house and returned with his family members. They sought help from a three wheeler tempo and removed the injured to Lodha URS 9 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 10 APEAL 445-14 Judgment.doc Hospital at Warje-Malavadi. At about 10.30 to 11.00 p.m., the police came there and took down his statement in writing. Ramdas was then shifted to Sahyadri Hospital. This witness has identified the present Appellants before the Court. The FIR is produced on record at Exh.80. In his cross-examination, he has admitted that when he was running from the backside of the vehicle, nobody accosted him and nobody beat him. He has admitted that nobody chased him either. He has further admitted that he did not try to help Ramdas when he was being assaulted and he has explained that he was frightened. He has further stated that at the time of the incident, it was raining. He has also admitted that even when his parents were assaulted, he did not intervene.
6. PW 7 Mangal Jori was the mother of PW 8 Laxman and deceased Ramdas. After narrating about the dispute between the families, she has further deposed that on 08/08/2009, there was a quarrel in the afternoon between her family and the Appellant and for the said incident, her sister Kamal had lodged a complaint with the police. She has further deposed that at around 8.00 p.m., her both sons i.e. PW 8 Laxman and deceased Ramdas, were proceeding URS 10 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 11 APEAL 445-14 Judgment.doc towards Kelewadi, Kothrud. She herself and her husband were proceeding towards her sister Kamal's house. Their sons overtook them on a motorcycle. At some distance, she heard shouts from her son Ramdas. Therefore, she and her husband ran towards him near Bhairoba Mandir bus stop at Kotewadi. She saw that Appellant No.2 with an iron rod, Appellant No.3 with a sword, Appellant No.4 with a sword and the Appellant No.5 with a sickle, were assaulting Ramdas. They also beat her husband with their weapons and she herself was assaulted with sword and sickle. The Appellant No.1 assaulted this witness with axe on her back due to which she fell down at the spot in a pool of blood. She then saw the accused leaving from there in two vehicles towards village Mutha. After some time, PW 8 Laxman and others took them in a tempo to Lodha hospital and she was treated there for 10 days. Her husband was treated for 5 days. She failed to identify the other accused, except the present Appellants, before the trial Court. She was cross-examined in detail in respect of their dispute and also in respect of the incident of actual assault. However, nothing worth mentioning was brought on record on behalf of the defence except that there was no electricity in that area, she has clarified that there was electricity in the temple which was nearby.
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7. PW 9 Subhash Jori was the father of the deceased and PW
8. He has deposed that at about 8 to 8.30 p.m. on 08/08/2009 when they were proceeding towards his sister-in-law Kamal Kamble's house at village Bahuli, his sons overtook them on a motorcycle near a temple. At some distance, he heard Ramdas's shouts. Therefore, they went running there. At that time, the Appellant No.1 gave an axe blow to his wife (PW 7). He has deposed that the Appellant No.2 was having an iron rod, the Appellant No.3 was having a sword, the Appellant No.4 was having a sword and the Appellant No.5 was having a sickle. He has further deposed that the Appellants had detained Ramdas. As this witness tried to intervene, at that time, he received a blow with an iron rod on his head. He was assaulted on hand, thigh and back. It is his case that the Appellants assaulted him. He has further deposed that the others were beating him and Ramdas with fist blows and kicks and that Ramdas had suffered injuries on his head, abdomen and legs. He has further deposed that thereafter, his younger son Laxman (PW 8) arrived there and noticed that everything was over and then returned to his house and brought his daughter and daughter-in-law who took them in a tempo to Lodha Hospital at Warje.
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8. The prosecution has examined PW 19 Dr. Nitin Patil who had conducted the post-mortem examination on the dead body of Ramdas. He has found that the deceased had four wounds on the head. Those were stitched wounds and there were contusions and abrasions on the hands and legs. In his opinion, the cause of death was due to head injury. In the cross-examination, he has admitted that the Injury Nos.1 to 4 on the head were surgery wounds and there were two other punctures which corresponded to the medical treatment given to him. He has admitted that the abrasions and contusions were possible because of fall on any rough or hard surface. He has admitted that all the abrasions and contusions found on the dead body of the deceased were were possible if the deceased, while traveling on a two wheeler, was given a dash by a four wheeler.
9. As can be seen, Ramdas was operated for his head injury after he had suffered the injuries in the assault. Therefore, the post- mortem examination may not indicate the exact nature of injuries suffered by him during assault. Instead, the evidence of PW 17 Dr. Pravin Jain in this behalf would be of relevance.
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10. PW 17 Dr. Pravin Jain was attached to Sahyadri Hospital as a Neurosurgeon Consultant. He has deposed that on 09/08/2009, Ramdas was admitted to their hospital and he was an indoor patient till 13/08/2009 when he died. This witness has produced the medical papers at Exh.132. The medical papers show that there was a CLW over occipito-parietal region which was sutured before he was brought to Sahyadri Hospital and there was blunt trauma all over body. His evidence shows that there was only one injury which was a CLW on the head of Ramdas. There was blunt trauma all over his body which, according to the evidence of PW 19 Dr. Nitin Patil, was possible due to fall from the motorcycle. Significantly, the same medical papers of Sahyadri Hospital mention the history as 'assault injury beaten by unknown people by rods around 8 p.m. at Potewadi, Tal. Haveli Dist. Pune on 8/8/9'. Ramdas was brought to Sahyadri Hospital at 3.00 a.m.
11. The prosecution has further examined PW 18 Dr. Naresh Lodha. He has found following injuries on the person of PW 7 Mangal and PW 9 Subhash :
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PW 7 - Mangal Jori had following injuries:
(i) CLW over low back region, right side around 7 inches in
length. Bone muscle exposed, bleeding plus. It was a cut injury.
(ii) CLW over occipital region, approximately 3 inches in length, cranial bone exposed, margins were irregular. It was a bleeding injury.
(iii) Penetrating close injury over left shoulder region. It was bleeding and wound was contaminated, size 1 inch deep and 1 cm in length.
(iv) Blunt trauma over both hamstring (back side of thigh) region,
(v) Blunt trauma over chest and back.
(vi) Blunt trauma over right forearm.
PW 9 - Subhash Jori had following injuries:
(i) CLW over occipital region of 3 cms size. Bone was
exposed, bleeding heavy, wound was contaminated.
(ii) CLW over right elbow region, 5 cm in length, bleeding and wound was contaminated with soil and rice particles.
(iii) Blunt trauma over right side of chest. Patient has surgical emphysema, lower rib fracture.
Thus, it can be seen that from the evidence of this witness that both these witnesses PW 7 and PW 9 had suffered grievous injuries. The evidence of PW 18 further shows that they had suffered injuries due to hard and blunt object as well as a sharp instrument.
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12. Taking overall view of the matter in the light of the evidence of the important witnesses discussed above, we find that the evidence of PW 8, the first informant, does not inspire confidence. According to him, he was riding on the same motorcycle with the deceased when they were intercepted by the Appellants and others in two cars. At that time, he got frightened and ran away from the spot and hid himself in a nearby temple. The entire evidence shows that the dispute was between the two families and there was no particular reason to assault Ramdas and leave out PW 8 Laxman. He has admitted in his cross-examination that none of the accused chased him and there was not even a scratch on his person. There is no reason why he was spared and only Ramdas was attacked. His further conduct was also unnatural. Even giving concession to his frightened state of mind, it does not stand to reason that he did not go for rescuing his brother and thereafter his old parents. He did not raise shouts or he did not seek help from any quarter. PW 7 has, in fact, deposed that after everything was over, PW 8 arrived there. This witness has described that Ramdas was assaulted by the Appellant and others with sharp weapons but there was only one injury on the head URS 16 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 17 APEAL 445-14 Judgment.doc and blunt trauma over other parts. Hence, there is no corroboration and, in fact, his evidence is contrary to the medical evidence. Therefore, we do not find that he is a reliable witness. Mr. Joshi, learned Counsel for the Appellants, is justified in arguing that this witness had not seen the incident at all. This submission is further strengthened by the medical papers of Sahyadri Hospital which mention that the assault was by unknown persons. When Ramdas was admitted to Sahyadri Hospital, PW 7 and PW 9 themselves were admitted to Lodha Hospital and they could not be in a position to describe the incident at that point of time. However, PW 8 was very much in a position to narrate the incident and, in fact, had given his FIR but the medical papers of Sahyadri Hospital mention that the assault was by unknown persons. Therefore, the defence has created sufficient doubt regarding the evidence of PW 8 and we are not inclined to rely on his evidence.
13. Though we have discarded the evidence of PW 8, we cannot treat the evidence of PW 7 and PW 9 in the same manner. Both of them were injured eye witnesses and had suffered grievous injuries. They were carried together to Lodha Hospital along with URS 17 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 18 APEAL 445-14 Judgment.doc Ramdas. Therefore, there is no doubt that they had suffered the injuries due to assault in the same incident in which Ramdas was assaulted. Both these witnesses were natural witnesses and their presence at the spot at the time of incident is proved beyond reasonable doubt. Therefore, their versions carry more weight. The injury suffered by PW 7 Mangal on her back is attributed by her to the Appellant No.1 and his assault with axe. This injury is corroborated by the medical evidence. Therefore, there is sufficient corroboration to their evidence. The defence has tried to create doubt about their evidence by suggesting that there was no light at the spot. However, the assailants were close relatives of PW 7 and PW 9 and therefore, it was not difficult for them to identify them as their assailants. PW 7 in particular, appears to be a truthful witness and she has refused to identify the other accused in the Court. Mr. Joshi tried to submit that since there was a dispute in respect of the agricultural land and therefore due to enmity, the Appellants were falsely implicated. Such enmity is a double edged weapon. It can be a cause for false implication but at the same time, it can be a motive for commission of the offence. In this case, there is a previous background of the incident in the afternoon when the Appellants had threatened them.
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Therefore, that enmity was proved to be the motive behind the present crime. Therefore, we are satisfied that the Appellants had assaulted the deceased Ramdas, PW 7 Mangal and PW 9 Subhash.
14. The analysis of the evidence discussed above, shows first Ramdas was assaulted by some members of the unlawful assembly. There is no evidence to show as to who was the accused who had actually caused the head injury which ultimately proved to be fatal. It is significant that after Ramdas had fallen down, he was not assaulted on his vital parts with deadly weapons and no other serious injury was caused to him by inflicting blows with such weapons. Even after PW 7 and PW 9 reached on the spot, they were assaulted but they were not beaten to death. All the three victims were at the mercy of the unlawful assembly of the accused who had gathered there with deadly weapons and yet they were not beaten to such an extent to cause their death on the spot. It shows that the common object of the assembly was not to commit murder of any of the victims but their object was to give severe thrashing to these victims. Though it is not clear as to who has assaulted deceased Ramdas on his head, knowledge that such injury could be caused to the deceased, can be attributed to each URS 19 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 20 APEAL 445-14 Judgment.doc member of the unlawful assembly and therefore, under the provisions of Section 149 of the IPC, each member of the unlawful assembly can be held liable for committing this offence with the prerequisite knowledge. Thus, we are of the opinion that the Appellants were members of the unlawful assembly. For the injuries caused to the deceased which ultimately led to his death, each member of the unlawful assembly can be said to have committed an offence punishable under Section 304 (Part-II) read with Section 149 of the IPC and not under Section 302 read with Section 149 of the IPC. At the same time, each member of such assembly has committed the offence of causing grievous hurt to PW 7 and PW 9 and hence, each such member is liable to be convicted for commission of an offence punishable under Section 326 read with Section 149 of the IPC. Hence, the following order.
ORDER
(i) Appeal is partly allowed.
(ii) Conviction of the Appellants for the offence punishable
under Section 149 of IPC read with Section 307 of IPC is altered to the one under Section 149 read with Section 326 of IPC. Appellants are sentenced to undergo rigorous URS 20 of 21 ::: Uploaded on - 31/07/2018 ::: Downloaded on - 31/07/2018 23:22:03 ::: 21 APEAL 445-14 Judgment.doc imprisonment for five years for the said offence. The order of learned Trial Judge, so far as the fine is concerned, is maintained.
(iii) Conviction of the Appellants for the offence punishable under Section 149 of IPC read with Section 302 of IPC is converted into the one under section 149 read with Part-II of Section 304 of IPC and the Appellants are sentenced to undergo rigorous imprisonment for seven years. The order of learned Trial Judge, so far as the fine is concerned, is maintained.
(iv) Rest of the order of the learned Trial judge, convicting the Appellants for other offences, is maintained.
(v) Needless to state that, Appellants shall undergo the sentence concurrently.
(vi) Appellants, who have undergone sentence of more than seven years, are directed to be set at liberty, if not required in any other case.
(SARANG V. KOTWAL, J.) (B. R. GAVAI, J.)
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