Kerala High Court
Lanson vs State Of Kerala on 3 January, 2008
Author: K.Hema
Bench: K.Hema
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
&
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934
CRL.A.No. 144 of 2008 ( )
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AGAINST THE ORDER/JUDGMENT IN SC.574/2006 of VI ADDL.DISTRICT COURT,
ERNAKULAM DATED 3-1-2008
AGAINST THE ORDER/JUDGMENT IN CP.12/2006 of J.M.F.C.-I,KOCHI
APPELLANT(S)/ACCUSED 1 TO 7::
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1. LANSON, S/O. XAVIER,
THEVARKATTU VEEDU, VELIYATHAMPARAMBU BAGOM
NAYARAMBALAM KARA, NARAYAMBALAM VILLAGE.
2. LIJU, S/O. XAVIER,
THEVARKATTU VEEDU, VELIYATHAMPARAMBU BAGOM
NAYARAMBALAM KARA, NARAYAMBALAM VILLAGE.
3. NELSON, S/O. FRANCIS,
THEVARKATTU VEEDU, VELIYATHAMPARAMBU BAGOM
NAYARAMBALAM KARA, NARAYAMBALAM VILLAGE.
4. AMBROSE, S/O. FRANCIS,
THEVARKATTU VEEDU, VELIYATHAMPARAMBU BAGOM
NAYARAMBALAM KARA, NARAYAMBALAM VILLAGE.
5. DASAN, S/O. JOSE,
PALTHINKAL VEEDU, VELIYATHAMPARAMBU BAGOM
NARAYAMBALAM.
6. SEBI, S/O. JACOB,
KOLARIKKAL VEEDU, VELIYATHAMPARAMBU BAGOM
NAYARAMBALAM.
7. LAIJU, S/O. ITTIRA JOSE,
THEVARKATTU VEEDU, VELIYATHAMPARAMBU BAGOM
NAYARAMBALAM.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.M.REVIKRISHNAN
CRL.A.No. 144 of 2008
-2-
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.Hema & Babu Mathew P.Joseph, JJ.
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Crl.A.No.144 of 2008
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Dated this the 1st day of August, 2012
JUDGMENT
Hema, J.
The appellants are accused nos.1 to 7. A charge sheet was laid against them under Sections 143, 147, 148, 302 read with Section 149 of Indian Penal Code ('IPC' for short). After trial, the Additional Sessions Court convicted and sentenced them to undergo imprisonment for life and to pay a fine of ` 25,000/- each and in default, to undergo rigorous imprisonment for six months for offence under Section 302 read with Section 149 IPC, rigorous imprisonment for three months each for offence under Section 143 IPC and rigorous imprisonment for one year each for offence under Section 148 IPC.
2. No separate sentence was awarded for offence under Section 147 IPC and by virtue of Section 71 IPC, sentence shall run concurrently. Out of the fine amount, ` 1,50,000/- shall be paid to PW13 as compensation under Section 357(1)(b) of Code of Criminal Procedure ('the Code' for short) and the remaining CRA 144/08 2 amount, if any, shall be credited to the Government, if an order is passed by an appropriate Government either under Section 432 of the Code or under Section 55 IPC read with Section 433(b) of the Code. Set off was also allowed. The said conviction and sentence are challenged in this appeal.
3. According to prosecution, on 07.03.2000, accused nos.1 to 7 formed themselves into an unlawful assembly with the common object of committing murder of Shibu. Accused nos.1 to 7 armed with deadly weapons attacked deceased Shibu on several parts of his body. The incident happened at 3 p.m on the pathway situated on the western side of the provision shop run by PW6. The incident happened away from the shop on the road.
4. First accused beat the deceased with MO3-iron road and when he fell down second accused hit him with MO1-hammer on his chest, back and leg. The Fifth accused cut him with MO2- chopper on the back side of the leg and near the sole of left leg and inflicted fatal injuries on him. Accused nos.3, 4, 6 and 7 also beat the deceased with sticks-MO4 series on the body and the legs and inflicted injuries on him.
CRA 144/08 3
5. To prove the prosecution case, prosecution examined PWs 1 to 25 and marked Exts.P1 to P22 and MOs 1 to 9. The accused examined DW1 and marked Ext.D1 on their side. According to accused, they are innocent of the allegations made and they were falsely implicated in the offence. Learned Additional Sessions Judge considered the evidence and rival contentions and found that prosecution proved its case and offences proved against the accused are under Sections 143, 147, 148, 302 read with Section 149 IPC and convicted and sentenced the accused. The said conviction and sentence are challenged in this appeal.
6. Heard both sides. Perused records. The fact that Shibu died due to the injuries sustained by him, which are described as injury nos.1 and 3 in Ext.P7 is not disputed. PW22 deposed that he conducted postmortem examination on the body of deceased Shibu and noted the injuries found on his body in Ext.P7 and according to him, death was due to the injuries sustained to the arm and leg, which are injury nos.1 and 3 in Ext.P7. There is no reason to reject this evidence.
CRA 144/08 4
7. Hence, the following points arise for consideration: (1) Whether accused nos.1 to 7 committed the overt acts alleged by the prosecution against deceased Shibu, (2) whether they committed the offences as alleged by the prosecution and 3) whether conviction and sentence passed against the appellants are unsustainable.
8. The Points: The prosecution records reveal that the offence of murder was allegedly committed by the fifth accused. Prosecution has no case that any other accused in this case committed murder of Shibu independently. The criminal liability on accused nos.1 to 4, 6 and 7 is fastened on them only by virtue of Section 149 IPC. Prosecution has no case that they are independently liable for offence of murder. They are answerable for murder only if prosecution proves that fifth accused committed murder and that he was a member of the unlawful assembly which was formed with the object of committing murder of Shibu.
9. In such circumstances, the most important question to be considered in this case is whether fifth accused committed murder of Shibu as alleged by the prosecution. To prove the CRA 144/08 5 prosecution case, it mainly relies upon the evidence of PW1 and PW5 who are the alleged eye-witnesses to the occurrence. Other eye-witnesses were also examined. They turned hostile to the prosecution and PW1 and PW5 supported the prosecution.
10. PW1 set the law in motion. He lodged the First Information Statement before the police and it is marked as Ext.P1. His earlier version about the incident finds a place in Ext.P6. PW1 would state that he is the person who had taken the deceased to the hospital. PW20 gave evidence that on 07.03.2000 at about 5.45 p.m. while she was working as Assistant Surgeon in Government Hospital, Ernakulam, she examined deceased Shibu and noted the injuries in Ext.P6 wound certificate. She also deposed that the alleged cause of injury was stated to her by Joseph (PW1). The alleged cause of injury is recorded in Ext.P6. As per Ext.P6 column no.9, deceased Shibu was assaulted by one "Jansen, Biju and another person", who are identifiable by sight.
11. It is pertinent to note that name of fifth accused was not stated by PW1 to the doctor-PW20. PW1 admitted that he was the person who had given information to the doctor when the CRA 144/08 6 deceased was taken to the hospital. He admitted that he knew all accused. He had previous acquaintance with all the accused. But name of the fifth accused or the overt act alleged against him by the prosecution was not stated by PW1 to the Doctor.
12. As per the allegations made in the first information statement, the person who had inflicted injuries on deceased Shibu with a chopper is one "Dasan, S/o.Abbas Joseph", but, the charge sheet is not laid against Dasan, S/o.Abbas Joseph. The investigating officer filed a report-Ext.P10 which shows that the fifth accused involved in this case is "Dasan, S/o.Palathinkal Jose". PW1 has no case that "Palathinkal Jose" and "Abbas Joseph" are one and the same. The Investigating Officer has no case that any investigation was made into the question whether the said two persons are one and the same and whether the person referred to by PW1 as the assailant who used MO2- chopper is the same as what is referred to in Ext.P1.
13. In these circumstances, where there is a striking difference and discrepancy in the description of the fifth accused and an omission to mention about involvement of the fifth accused (Dasan, S/o.Palathingal Jose), PW1 should have CRA 144/08 7 identified the person who had inflicted the injuries which caused the death of the deceased at least from the court when he was examined. PW1 did not identify the fifth accused from court as the person who had cut deceased Shibu with MO2-Chopper. It would appear that learned Public Prosecutor himself was hesitant to get the accused identified by PW1 because, in the light of the discrepancy it was incumbent upon the prosecution to prove the identity of the offenders by getting them identified by the eye witnesses at least from the witness box.
14. It is pertinent to note that learned Public Prosecutor did not succeed in getting the accused identified by PW5, the other eye witness, but there is no explanation why PW1 did not identify the accused, while he was examined in court. In the light of the above discrepancy, especially in the absence of any investigation into the question whether the person who was arrayed as fifth accused in the charge is the same person mentioned by PW1 in the first information statement. It is most unsafe to act upon the evidence of PW1 to hold that fifth accused in this case committed the overt act alleged by the prosecution against deceased Shibu. On the basis of evidence of PW1, it CRA 144/08 8 cannot be said that fifth accused committed the overt act alleged against him.
15. Learned counsel for accused strongly argued that PW5 is totally unreliable. Even if the court is persuaded to act upon his evidence, it may be done only if there is corroboration to such evidence. PW5 deposed that he witnessed the incident which happened on 07.03.2000 at about 3 p.m. While he was going for work on the western side, he heard a cry and also people gathering and he noticed that deceased Shibu was lying supine position. The second accused was hitting on the chest of deceased Shibu with MO1 hammer declaring that he would leave only after killing him.
16. The first accused beat him with MO3-iron rod on the legs and hands. The fifth accused cut deceased Shibu on both his legs with MO2-chopper. Deceased Shibu was taken away from the place of occurrence in an autorickshaw by the person who came running there. Learned counsel for accused submitted that PW5 is not from the locality. He belongs to some other place. He is only a chance witness if his entire evidence is accepted. He also submitted that PW5 was residing away from the place of CRA 144/08 9 occurrence as revealed from his evidence. He deposed that he left the place in a bus to his house. The only reason stated by him is that he had gone for work on that day. He pointed out that PW2 gave evidence before the court that he had gone for work along with PW5 and they came back only after 3 p.m. on that day.
17. It is true that on an analysis of the evidence, it would be clear that PW5 is a chance witness. Nobody has a case that he was residing in the locality. The place of occurrence is at Veliyathamparamba, whereas PW5 deposed that he hails from Perumpilly in Narakkal. There is no rule that evidence of a chance witness has to be thrown out as unreliable. It only cautions the court to scrutinise his evidence with greater caution.
18. It has come out from the evidence of PW5 that he was accused in 3, 4, 5 criminal cases. It is also in evidence that deceased Shibu was also an accused in criminal cases as admitted by PW25-the investigating officer and other witnesses. It is also in evidence that co-accused were also involved in criminal cases. PW5 stated that he is acquainted with deceased Shibu. It is submitted that he has given evidence only because of his relationship with deceased Shibu, though PW5 denied it. This CRA 144/08 10 has to be kept in mind while his evidence is analysed. While doing so, the medical evidence gains significance. It has to be looked into whether evidence of PW5 is corroborated by the medical evidence.
19. PW5 deposed that second accused beat the deceased on his chest while he was lying in a supine position stating that he would leave him only after killing him. Evidence of PW22-the doctor shows that MO1 hammer is a very heavy weapon. According to him, if MO1 is forcibly used on the chest, it will cause injury like fracture and lacerated wounds. But there was no visible injuries on the chest. Apart from the incised wounds on the body of deceased Shibu, the doctor has not given evidence that any injury sustained by deceased Shibu could be caused by MO1 hammer.
20. Absence of injury on deceased Shibu, which could be caused by hitting with MO1 hammer, casts a doubt on the evidence of PW5 regarding the manner in which the assault was made. It is doubtful whether deceased Shibu was beaten with hammer by the second accused with intention to kill him, a declared by him at the scene of occurrence. It is also pertinent to CRA 144/08 11 note that PW5 categorically deposed that there was a crush injury on the chest of deceased Shibu which was caused by the second accused by hitting with MO1 hammer. Same is the case with other attacks made by co-accused, though first accused is stated to have beaten deceased Shibu with an iron rod.
21. The medical evidence also does not reveal any injury having been caused by beating with a weapon like MO3 or the sticks-MO4 series. He also did not say that any other accused beat deceased Shibu with the stick. In cross-examination, it was brought out that he could not say whether the injured was lying north-south or whether second accused was hitting from the side of the leg or from the side of the head of the deceased, etc.
22. Even though PW5 may not be able to give the various details regarding sequence of events, the manner of infliction of injuries, etc. because of lapse of time of seven years, if he was a witness to the occurrence, he would be able to say whether the injured was lying across the road in the east-west direction or in the north-south direction. He may also be able to say where the assailants were standing, whether it was by the side of the head or at the side of the leg. It is also stated that accused cut the CRA 144/08 12 deceased with MO2 chopper on the back side of the body of the deceased, but no injury was found on the back side.
23. No injury which could be caused by any other weapon allegedly used in this case was also noted by the doctor at the time of examination or at the time of postmortem examination. The medical evidence is silent about infliction of injuries with MO1, MO3 and MO4 series. In the light of the discrepancies noted above, as rightly pointed out by learned defence counsel, it is necessary that corroboration is insisted upon.
24. But, none of the eye witnesses who were examined in this case support the prosecution case. All of them turned hostile to the prosecution (PWs 2, 3, 4, 6, and 21). It is also relevant to note that though there are witnesses in the locality who could have witnesses the incident, prosecution examined PWs 1 and 5, who are not from the locality, as revealed from the evidence.
25. PW1 deposed that he came to the scene on hearing the cries while he was taking rest in his house. But the scene mahazar does not show the house of PW1 anywhere near the place of occurrence. It has come out from the evidence that he resides 2-3 furlong (about 600 metres) away from the place of CRA 144/08 13 occurrence. Prosecution has not case that such version given by the witnesses is wrong.
26. Apart from all these, it is mystery how deceased Shibu died even though PW1, who is his own uncle, was present at the scene of occurrence to rescue him immediately after the incident. If the prosecution case is believed, PW1 was present at the scene, he could have taken the deceased immediately to the hospital. But the incident happened at 3 p.m. and Shibu died in the Government Hospital at 8.30 p.m. He was examined by the doctor at Government Hospital only at 5.45 p.m., after two hours and forty five minutes of the incident.
27. The medical evidence reveal that though deceased Shibu had sustained certain incised wounds on his body, none of those injuries are in the vital organs of the deceased. Injuries were on the arms and legs. The evidence of the doctor shows that when deceased was brought to the hospital, his condition was bad and he was in a state of shock. It is clear from the evidence that he had lost sufficient quantity of blood. If, as a matter of fact, deceased was taken to the hospital immediately, especially since, PW1 was present at the scene, it is doubtful CRA 144/08 14 whether deceased was taken to any hospital for treatment immediately.
28. Though PW1 would say that deceased was taken to three different hospitals before he was taken to the General Hospital, no document is forthcoming. The investigating officer has not made any investigation into the fact whether deceased was taken to any hospital prior to his examination at the Government Hospital, as alleged by the witnesses in this case. An investigation into these aspects is very important because, had the deceased been taken to the hospital immediately on sustaining such injuries, he would have been in a position to state who were the assailants. Had he been taken to the hospital, such document would have been available.
29. It is also possible that if medical attention was given in which case his life must have been saved. But, it appears from the evidence that there was some delay in taking the deceased to the hospital. Though PW1 claimed that he had taken the deceased to three different hospitals, there is no supporting documents to believe this version. According to PW1, deceased was taken to the hospital in an autorickshaw. But, according to CRA 144/08 15 PW11, deceased was taken to two hospitals in his own autorickshaw after the incident by PW1 to two hospitals and thereafter in a car to the Government Hospital.
30. The version given by PW1 that deceased was taken to three hospitals in an autorickshaw and thereafter, to Government Hospital also is not supported by the evidence of PW11. Though PW1 would claim that deceased was taken in an autorickshaw to K.M.K. Hospital, PW11, in whose autorickshaw deceased was taken to the hospital, does not have such a case. He also did not say that deceased was taken in his autorickshaw to Government Hospital. Evidence of PW10 further shows that deceased was taken to three hospitals in an autorickshaw and thereafter to Government Hospital.
31. Thus, there is some contradictions in the evidence of PWs 1, 10 and 11 regarding the fact that deceased was taken to different hospitals. The contradictions are there in respect of number of hospitals to which the deceased was taken and also the vehicle in which he was taken. Since no document or evidence is forthcoming and no investigation seems to have been done as to whether deceased was taken to three different CRA 144/08 16 hospitals, it is doubtful whether deceased attended immediately after the incident or he was left at the scene without being taken to the hospital immediately after the incident.
32. In this connection, evidence of DW1 becomes relevant. He deposed that he is a Panchayat Member. It has come out from the evidence that he is residing near the place of occurrence. PW1 himself admitted that he is residing on the western side of the place of occurrence and his house is the scone one on the west. According to him, on 07.03.2000, he heard a noise and rushed to the place and found that deceased Shibu lying on the western side of the house of Francis. Deceased Shibu had some injury on the leg. He instructed to get an autorickshaw to take him to the hospital and also to inform his relatives. Some relatives came to the scene and he was taken to the hospital. There is absolutely nothing in his evidence to disbelieve his version.
33. It is clear from the evidence that at the time when he reached near the place of occurrence, neither PW1 nor any other relatives of deceased Shibu was present at the scene. In fact, he had instructed to call for the relatives. May be at the that time CRA 144/08 17 PW1 reached the place of occurrence as a relative. It is likely that deceased did not get immediate medical attention to save his life. Injuries were sufficiently bleeding and deceased Shibu was in a state of shock because of the blood loss when he was examined by PW20.
34. In the absence of any investigation into the vital aspect whether deceased was taken to three different hospitals, we find it difficult to believe the version given by PWs 1 and 10, since no evidence is forthcoming to support this version. The incident happened at 3 p.m. and they reached Government Hospital only by about 5.45 p.m., after about two hours and forty five minutes. Learned Public Prosecutor vehementally argued that all the details of the overt act, names of the accused, the weapons used, the sequence of events, etc. are all there in the F.I. Statement itself. That lends an assurance to the court that the version given by PW1 who is the first informant is correct.
35. PW1 stated that the incident happened on 07.03.2000 and the statement was given at 11.30 p.m. The FIR reached the court on the next day, i.e. on 08.03.2000 at 11 a.m. It is also argued that there is absolutely no reason to falsely implicate any CRA 144/08 18 of the accused in this case. Same is the case with PW5 also. Therefore, the evidence of PWs 1 and 5 cannot be rejected. Regarding the discrepancy in the F.I. Statement and the name of the accused as already discussed, it is also to be noted that though PW1 has given a statement to PW20-the doctor regarding involvement of only three persons, two named and one unnamed, neither of the two persons are in the array of accused at present.
36. PW1 has not given plausible explanation why the two persons stated by him to the doctor are not there in the array of accused now. It is also pertinent to note that in Ext.P1 also there are differences in the names of the accused. A comparison of the names in Ext.P10 report filed by the investigating officer and the F.I. Statement will show that certain names and names of the father are different. The names of persons as first and second accused in the F.I. Statement are different from the names shown in the charge sheet. First accused in the charge sheet is "Lalson", whereas the first accused in Ext.P1 is "Janson".
37. PW1 has no case that it was only a mistake committed either by him or by the person who recorded the F.I. Statement. PW24 has no case that he has committed any mistake CRA 144/08 19 in recording the name. The name of the second accused in the charge sheet is "Liju", whereas the name in Ext.P1 is "Lijo". The name of the second accused also differs. The third accused is described as Jenson whereas, in Ext.P1, third accused is described as Nelson. We have already discussed about the vital discrepancy in the description of the fifth accused, who has the major role in the alleged incident. But, none of the discrepancies are explained by PW1. He also did not identify any of the accused.
38. Apart from all these, PW1 did not explain to the court why he spoke about involvement of only about three persons when he gave information to the doctor. He has no case that he was perplexed or upset when he made a statement to the doctor. But, it is not brought out from the evidence of PW1 or the doctor that there should be a mistake in recording the alleged cause of injury. No presumption can be made that some mistake had occurred in recording the statement.
39. It is also pertinent to note that PW1 did not speak about use of MO2 chopper. If, as a matter of fact, he was an eye witness to the occurrence, it is not something which any eye CRA 144/08 20 witness would forget to mention about what weapon is used (with which no injury is caused), the stick (with which no injury is caused) and the chopper, by which majority of the injuries are caused, MO2 is a most dangerous weapon, etc. If PW1 had witnessed the incident, it is unlikely that he would omit to mention the use of MO2 for inflicting injuries on deceased Shibu. PW1 has no case that why he made such omissions while making statement to the doctor. All these facts will definitely throw a light on the version given by PW1 regarding the incident and even his presence at the time of incident.
40. In such circumstances, the argument advanced by learned Public Prosecutor that Ext.P1 contains the details of the overt acts, the weapons used, the consequence of events, etc. cannot be accepted and on that basis no conviction can be made. Prosecution has also examined certain witnesses to prove that weapons of offence were recovered pursuant to a statement given by PWs 1 to 25 from its place. As rightly pointed out, even if the entire evidence is accepted, there is nothing incriminating against the accused to connect them with the crime if at all the evidence of recovery of weapons is accepted.
CRA 144/08 21
41. It will only show that accused had knowledge about the place where the weapons alleged recovered were placed. But, even on the weapons seized in this case, except on MOs 1 and 2, blood was found to be AB group. This circumstance alone will not be incriminating against the accused. This is particularly so when evidence of the eye witnesses prove involvement of the accused in the offence. It is unfortunate that an incident had happened in which a boy aged 23 years lost his life. As far as the court is concerned, there must be cogent evidence to prove that all accused committed various overt acts. In the absence of it, no conviction can be had.
42. Now, coming to the involvement of the accused other than the fifth accused, who is made liable to be punished for offence under Section 302 IPC, is concerned, the first statement given by PW1 to the doctor gains significance. Involvement of only three persons was stated by PW1 to the doctor. To constitute an unlawful assembly, there must be five persons. In the absence of PW1 explaining non mention of persons more than three, it is doubtful whether five persons were involved in this offence. This is more particularly since there is no corresponding CRA 144/08 22 injury to the alleged overt act committed by any of the accused other than the fifth accused in this case. Taking all these facts into consideration, conviction of accused 1 to 4, 6 and 7 cannot be sustained as members of unlawful assembly.
43. Formation of unlawful assembly itself is doubtful. A mere allegation made or a statement made by a witness cannot lead the court to a conclusion that an unlawful assembly was made. Even though the common object is stated to be to commit murder of Shibu, in respect of the fact that all the accused were alleged armed with weapons like a very heavy hammer, a chopper and sticks and there were seven persons as assailants and deceased was in a supine position when the attacks were made.
44. It is a mystery that accused did not sustain any injury in the assault. If, as a matter of fact, the common object of the assembly was to commit murder, it is not discernible as to why the assailant should spare the vital organs on the body of the deceased. They have chosen only the arms and legs to make an attack. Therefore, commission of murder itself is doubtful. Taking all these into consideration, we find that prosecution has failed to CRA 144/08 23 establish that fifth accused was involved in the offence and that he intentionally caused the death of Shibu by cutting with MO2 and thereby the other accused are also liable for offence of murder being members of unlawful assembly. No other offences are alleged against accused 1 to 5 apart from murder. Therefore, the conviction and sentence passed against the accused are unsustainable.
45. Hence, the following order is passed:
i. The conviction and sentence passed against the appellants are set aside.
ii. The appellants are found not guilty and they are acquitted of offences under Sections 143, 147, 148, 302 read with Section 149 of Indian Penal Code.
iii. The appellants are set at liberty forthwith.
iv. The Registry shall issue release memo forthwith to the Superintendent of the prison concerned.
This appeal is allowed.
(Sd/- K.Hema, Judge) (Sd/-Babu Mathew P.Joseph, Judge) ma/tkv /True copy/ P.A to Judge