REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 38 of 2011
Rohtas & Anr. ..... Appellant(s)
VERSUS
State of Haryana .....Respondent
WITH
CRIMINAL APPEAL NO. 775 of 2011
Bijender ..... Appellant
VERSUS
State of Haryana .....Respondent
JUDGMENT
Surya Kant, J:
These two criminal appeals, which have been heard through video
conferencing, are directed against the judgment dated 15.03.2010 of the
High Court of Punjab and Haryana whereby conviction of Rohtas and
Sanjay (appellants in Criminal Appeal No. 38 of 2011) and Bijender
(appellant in Criminal Appeal No. 775 of 2011) under Sections 307 and
148 of the Indian Penal Code, 1860 (“IPC”) has been upheld, though the
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sentence of seven years rigorous imprisonment awarded by the
Additional Sessions Judge, Sonipat has been reduced to five years, with
a fine of Rs. 1,00,000 (Rupees One Lakh) payable as compensation to the
victimcomplainant.
FACTS
2. The brief facts of the prosecution case are as follows. A complaint
was lodged with the police by the victimRanbir Singh (PW1) on
26.01.1998 stating that two days ago while on his way to irrigate his
agricultural field, he was stopped by Rohtas, Sanjay, Bijender (the
present three appellants) and Om Prakash (since deceased) who
collectively threatened him with death if he were to return to his fields for
irrigation. The complainant came back to his house and narrated the
incident to his family members who while cautioning him against picking
a quarrel, asked him to go about his normal routine. On the following
day, i.e. 25.01.1998, when the complainant was passing by the
Hudawala field while on his way to another agricultural plot (known as
Patewala field), the four accused Om Parkash, Rohtas, Sanjay and
Bijender intercepted him. They started inflicting blows on the
complainant’s body using axes, thereby causing him to fall down and
seriously injuring his legs, hand and head. Another group of three
accused persons, comprising Hawa Singh, Virender @ Beero and
Rajinder also joined in thrashing the complainant. The assailants further
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declared that they would not rest till they killed the complainant. Upon
hearing the complainant’s cries, his brother Balwan (PW3) who was
irrigating a nearby Budewala field, rushed to the spot and raised an
alarm. Thereafter, all seven accused ran from the spot. Balwan
subsequently carried his injured brother to Government Civil hospital at
Sonipat for treatment. Owing to the seriousness of multiple injuries,
Ranbir was referred to Post Graduate Institute of Medical Sciences at
Rohtak (in short, “PGIMS, Rohtak”).
3. The jurisdictional police recorded the statement of the injured on
26.01.1998 at PGIMS, Rohtak and formally registered the First
Information Report under Sections 307, 323, 325, 506, 148 and 149 of
the IPC. All the seven accused were then arrested. Post completion of
investigation, they were committed to trial. The Additional Sessions
Judge, Sonipat framed two charges; first, of rioting with deadly weapons
under Section 148, and second, of attempt to murder with common
object as part of an unlawful assembly under Section 307 read with
Section 149 of the IPC. All seven accused pleaded not guilty and claimed
trial. During trial, however, Om Prakash died and proceedings against
him stood abated on 08.11.2000.
4. The prosecution examined twelve witnesses to establish the
accused’s guilt, which included the victimcomplainant Ranbir Singh
(PW1) and his brother and only eyewitness Balwan (PW3). The
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complainant very effectively corroborated his earlier version. He remained
firm during crossexamination and categorically stated that “Om
Parkash, Rohtas, Sanjay and Bijender and after a minute Beero,
Hawa Singh and Rajinder came there. All the accused attacked
me with their respective weapons.” He further mentioned that “Om
Parkash gave two axe blows on my head while Rohtas inflicted
uncounted injuries on my right leg... Sanjay gave twothree axe
blows on my left leg... Bijender gave one axe blow on the palm of
my left hand.” It is relevant to be noticed here that the complainant
was candid enough to admit in his crossexamination that “when the
accused Rajinder, Hawa Singh and Beero when arrived at the
scene of occurrence, I have already suffered all the injuries on my
person.... [sic]”
5. Eyewitness, Balwan (PW3) stated on oath that on 25.01.1998 he
was irrigating Budewala field which he had taken on lease basis. At
about 12PM he heard noise towards the passage and after running in
that direction he witnessed that “Om Parkash, Rohtas, Sanjay and
Bijender armed with axes were causing injuries to my
brother/Ranbir.” Like the injuredcomplainant, Balwan (PW3) also gave
a detailed account of the assault and consequent injuries on the body of
Ranbir. Despite strong suggestions by the defence counsel on the
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unlikelihood of him having seen the incident, Balwan unequivocally
replied that “I saw the accused causing injuries to my brother from
distance of about half killa...”.
6. Dr. Suman Mathur (PW4), who had medicolegally examined the
injured soon after the occurrence, lead the medical evidence. She found
the following seven injuries on various parts of the complainant’s (PW1)
body:
“1. Lacerated Wound 7 cm x 2 cm x bone deep on the lower 1/3rd of
right side. Bone exposed muscle and tendons were crushed. Fresh
bleeding was present and was advised xray.
2. Lacerated Wound 3 cm x 2 cms x bone deep present on the right
ankle foot. Advised xray.
3. Lacerated Wound 3 cms x 2 cms x bone deep on the front and
middle of left leg. Advised xray left leg.
4. Lacerated Wound 3 cms x 2 cms x muscle deep present on the
dorsum of the left leg.
5. Lacerated Wound 3 cms x 3 cms x skin deep on the palmer
aspect of left leg. Advised xray.
6. Lacerated Wound 5 cms x 2 cms x scalp deep on the left parieto
temporal region 5 cms above the left ear. Advised xray.
7. Lacerated Wound 2 cms x 2 cms x scalp deep on the right
parieto temporal region. Advised xray.”
7. The Orthopaedic Surgeon, Dr Ajay Goel (PW10), deposed that he
was posted as Registrar in the Department of Orthopaedics, XRay and
Emergency Wing, at PGIMS Rohtak when he attended to the complainant
and diagnosed him with fracture of both the lower bones in both of his
legs, along with vascular and nerve injuries. External bilateral legs were
affixed and vascular repair was carried out on 26.01.1998. But, upon
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deterioration of the complainant’s condition, the lower portion of his right
leg (below the knee) was amputated on 01.02.1998. The need for this
amputation and its correlation with the initial set of injuries inflicted by
the accused, was elucidated by Dr SS Lochab (PW12), who was posted
as Head of Department of Cardiothoracic and Vascular Surgery at
PGIMS, Rohtak. He explained the damage caused to the tibial arteries
and how the massive blood loss had endangered the complainant’s life.
The Investigating Officer, S.I. Parkash Chand (PW6) and other formal
police witnesses too deposed to substantiate the prosecution case.
8. The sixsurviving accused in their statement under Section 313 of
Code of Criminal Procedure, 1973 (“CrPC”) claimed that they were falsely
implicated on account of local village politics. They also led defence
evidence and produced Dr Varsha (DW1) posted then as the Medical
Officer, Civil Hospital, Sonipat who had found injuries on Om Prakash
(deceased) and Sanjay (present appellant) during a medico legal
examination on the day after the incident.
9. Analysing this substantial ocular and medical evidence, the learned
Additional Sessions Judge, Sonipat negated the defence’s objection
against reliance on testimony of PW3, for he being related to the
complainant or that the medical evidence did not reconcile with the
ocular evidence. The trial Court noted that an ‘unlawful assembly’ with a
common object had caused serious injuries to the complainant. All the
six accused were consequently convicted for the offence under Section
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307 read with Section 149 of the IPC (with sentence of seven years
rigorous imprisonment) and also under Section 148 of the IPC (with an
additional one year’s concurrent imprisonment).
10. The High Court, in appeal, reappraised the entire evidence and
took further notice of the complainant’s admission that three of the
accused, namely Rajinder, Hawa Singh and Beero @ Virender, had
arrived at the scene of occurrence after he had already suffered injuries
from the other accused. Sensing the possibility that the latearriving
accused might have been named only to widen the net and settle past
scores, the High Court extended the benefit of doubt to Rajinder, Hawa
Singh and Beero @ Virender and acquitted them of all charges. As
regards the present three appellants Rohtas, Sanjay and Bijender, the
High Court found no ground to interfere with their conviction, though it
reduced the quantum of sentence under the charge of Section 307 IPC
from seven years to five, with a combined additional fine of Rs 1,00,000
(Rupees One Lakh) to be paid to the victimcomplainant (PW1).
11. These three remaining convicts, namely, Rohtas and Sanjay
(jointly) and Bijender have assailed their conviction and sentence
through these two criminal appeals.
CONTENTIONS:
12. We have heard learned counsel for the appellants at considerable
length and have perused the record indepth. There are three principal
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contentions which have been raised on behalf of the appellants. First, it
was urged that the minimum number of persons required to constitute
an ‘unlawful assembly’ and concomitantly sustain any charge under
Section 149 IPC is five. Given that three of the original seven accused
have been acquitted by the High Court, the conviction for attempt to
murder as part of an unlawful assembly could not survive. In support,
learned counsel for the appellants relied upon Amar Singh v. State of
Punjab,1
and Dhupa Chamar v. State of Bihar2
. Further reliance was
placed on Subran v. State of Kerala3
, to urge that the case should not
be converted to one under Section 307 IPC simplicitor at an advanced
stage. Second, the prosecution story was highly doubtful as Balwan (PW3) was an interested witness and no other independent witness had been
examined. Third and finally, it was urged alternatively that the appellants
after having undergone some part of their sentence were enlarged on bail
by this Court almost a decade back, and it would not serve the ends of
criminal justice to return them to Jail at this juncture. The sentence
thus ought to be reduced to the period already undergone by the
appellants.
13. Although learned State Counsel did not appear on the date of final
hearing, but the respondent’s stand on the intermittent dates of hearing
has been in total contrast to that of the appellants. The prosecution case
1
(1987) 1 SCC 679.
2
(2002) 6 SCC 506.
3
(1993) 3 SCC 32.
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proceeds on the premise that there is an attempt to murder, involving
seven persons with a common intention and prior meeting of minds. The
emphasis of the State as usual is that no lenient view ought to be taken
in light of the nature of injuries.
ANALYSIS:
14. We have given our thoughtful consideration to all the issues raised
on behalf of the appellants. We first deem it appropriate to avert to the
contention whether a charge framed with the assistance of Section 149
IPC can later be converted to one read with Section 34 IPC or even a
simplicitor individual crime? Second, whether lack of independent
witnesses to a violent crime would undermine the prosecution case and
whether closely related witnesses can be relied upon in such instances?
And third, whether leniency ought to be shown to the present appellants
given the extended period of liberty which they have enjoyed since being
released on bail?
(i) Framing of charge and its subsequent alteration
15. The primary attack on the judgment of the High Court by learned
counsel for the appellants is on a question of law, which although seems
interesting at first but turns out to be superficial upon a deeper
consideration. The oversight regarding Section 148 and 149 of the IPC as
highlighted by the appellants is indeed inescapable. Before the members
of an ‘unlawful assembly’ can be vicariously held guilty of an offence
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committed in furtherance of common object, it is necessary to establish
that not less than five persons, as mandatorily prescribed under Section
141 read with Section 149 of the IPC had actually participated in the
occurrence. It is not uncommon, like in the present facts, when although
the number of accused is more than five at the time of chargesheeting,
but owing to acquittals of some of them over the course of trial, the
remaining number of accused falls below five. It may be true in such
cases, as rightly urged by the appellants that the charge under Section
148 and 149 IPC would not survive.
16. This does not, however, imply that Courts can not alter the charge
and seek the aid of Section 34 IPC (if there is common intention), or that
they cannot assess whether an accused independently satisfies the
ingredients of a particular offence. Sections 211 to 224 of CrPC which
deal with framing of charges in criminal trials, give significant flexibility
to Courts to alter and rectify the charges. The only controlling objective
while deciding on alteration is whether the new charge would cause
prejudice to the accused, say if he were to be taken by surprise or if the
belated change would affect his defence strategy.4
The emphasis of
Chapter XVII of the CrPC is thus to give a full and proper opportunity to
the defence but at the same time to ensure that justice is not defeated by
mere technicalities. Similarly, Section 386 of CrPC bestows even upon
the appellate Court such wide powers to make amendments to the
4
Nallapareddy Sridhar Reddy v. State of AP, 2020 SCC OnLine SC 60, ¶ 1621.
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charges which may have been erroneously framed earlier. Furthermore,
improper, or nonframing of charge by itself is not a ground for acquittal
under Section 464 of the CrPC. It must necessarily be shown that failure
of justice has been caused, in which case a retrial may be ordered.5
17. The contention of the appellants to the contrary is nothing but
hypertechnical. It deserves mention that the extracts of Subran v.
State of Kerala (supra) as relied upon by the appellants’ counsel have
been subsequently recalled and substituted by the bench in review
jurisdiction.6
The amended version makes clear that acquittal in Subran
(supra) was not because of improper framing of charges but on facts. In
that case, the injuries attributed to the accused failed to satisfy the
necessary ingredients of the relevant provision when his role was
assessed individually. Indeed, such is the right approach. Courts are free
to weigh the evidence and determine whether an independent conviction
is possible in case group prosecution under Section 149 IPC fails.
18. In another case relied upon by the appellants, i.e. Amar Singh v.
State of Punjab (supra), this Court in the penultimate paragraph notes
that “Apart from the fact that the appellants cannot be convicted
under Sections 148 and 149 IPC, it is difficult to convict them on
any charge on the basis of the evidence of PW5.” This shows that
acquittal was based not merely upon failure by the prosecution to fulfil
5
Kantilal Chandulal Mehta v. State of Maharashtra, (1969) 3 SCC 166.
6
(1993) 3 SCC 722.
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the requirements of Section 149 IPC, but because even independently no
substantive offence was found to have been committed.
19. In fact, the law on this point has continuously been delved into and
reiterated by this Court from time to time. A threeJudge Bench of this
Court in Karnail Singh v. State of Punjab7
, held that:
“8. It is true that there is substantial difference between the two
sections but as observed by Lord Sumner in Barendra Kumar
Ghosh v. Emperor I.L.R. 52 Cal. 197, they also to some extent
overlap and it is a question to be determined on the facts of each
case whether the charge under section 149 overlaps the ground
covered by section 34. If the common object which is the subjectmatter of the charge under section 149 does not necessarily
involve a common intention, then the substitution of section 34 for
section 149 might result in prejudice to the accused and ought not
therefore to be permitted.
But if the facts to be proved and the evidence to be
adduced with reference to the charge under section 149
would be the same if the charge were under section 34,
then the failure to charge the accused under section 34
could not result in any prejudice and in such cases the
substitution of section 34 for section 149 must be held to
be a formal matter.”
(emphasis supplied)
20. The aboveextracted position of law was further concretised in
Willie (William) Slaney v. State of MP8
and by the majority in
7
AIR 1954 SC 204.
8
AIR 1956 SC 116, ¶ 49.
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Chittarmal v. State of Rajasthan9
. The permissibility of convicting an
accused individually under a simplicitor provision after group conviction
with the aid of Section 149 of IPC fails, was further explored in
Atmaram Zingaraji v. State of Maharashtra10
, wherein this Court
held that:
“4. The next question that falls for our determination is whether,
after having affirmed the acquittal of all others, the High Court
could convict the appellant under Section 302, I.P.C. (simpliciter).
The charges framed against the accused (quoted earlier) and the
evidence adduced by the prosecution to bring them home clearly
indicate that according to its case, the nine persons arraigned
before the trial Court and, none others, either named or
unnamed (totalling minimum five or more persons) formed the
unlawful assembly. Consequent upon the acquittal of the other
eight the appellant could not be convicted with the aid of Section
149, I.P.C., more particularly, in view of the concurrent findings of
the learned Courts below that the other eight persons were not in
any way involved with the offences in question.
5. The same principle will apply when persons are tried with the
aid of Section 34, I.P.C. In the case of Krishna v. State of
Maharashtra [1964]1SCR678 , a four Judge Bench of this Court
has laid down that when four accused persons are tried on a
specific accusation that only they committed a murder in
furtherance of their common intention and three of them are
acquitted, the fourth accused cannot be convicted with the aid of
Section 34, I.P.C. for the effect of law would be that those who
were with him did not conjointly act with the fourth accused in
9
(2003) 2 SCC 266, ¶ 14.
10 (1997) 7 SCC 41.
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committing the murder.
6. In either of the above situations therefore the sole convict can
be convicted under Section 302, I. P. C. (simpliciter) only on proof
of the fact that his individual act caused the death of the victim.
To put it differently, he would be liable for his own act only. In
the instant case, the evidence on record does not prove that
the injuries inflicted by the appellant alone caused the
death; on the contrary the evidence of the eyewitnesses
and the evidence of the doctor who held the postmortem
examination indicate that the deceased sustained injuries
by other weapons also and his death was the outcome of
all the injuries. The appellant, therefore, would be guilty of
the offence under Section 326, I.P.C. as he caused a
grievous injury to the deceased with the aid of jambia (a
sharpcutting instrument).”
(emphasis supplied)
21. This position of law has finally been summed up very succinctly in
Nallabothu Venkaiah v. State of Andhra Pradesh11:
“24. Analytical reading of catena of decisions of this Court, the
following broad proposition of law clearly emerges; (a) the
conviction under Section 302 simpliciter without aid of
Section 149 is permissible if overt act is attributed to the
accused resulting in the fatal injury which is
independently sufficient in the ordinary course of nature to
cause the death of the deceased and is supported by
medical evidence; (b) wrongful acquittal recorded by the
High Court, even if it stood, that circumstance would not
11 (2002) 7 SCC 117.
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impede the conviction of the appellant under Section 302
r/w Section 149 I.P.C. (c) charge under Section 302 with the
aid of Section 149 could be converted into one under
Section 302 r/w Section 34 if the criminal act done by
several persons less than five in number in furtherance of
common intention is proved.”
(emphasis supplied)
22. Although both Section 34 and 149 of the IPC are modes for
apportioning vicarious liability on the individual members of a group,
there exist a few important differences between these two provisions.
Whereas Section 34 requires active participation and a prior meeting of
minds, Section 149 IPC assigns liability merely by membership of the
unlawful assembly. In reality, such ‘common intention’ is usually
indirectly inferred from conduct of the individuals and only seldom it is
done through direct evidence.12
23. Applying these settled principles to the facts of the present case, it
may be seen that both the common object and the common intention are
traced back to the same evidence, i.e., evaluating the conduct of the
accused as narrated by the injured and the eyewitness. Further, a
perusal of Section 313 CrPC statement shows that the appellants were
expressly confronted with their specific role in the offence: that each of
them had individually attacked the complainant with a deadly object in
furtherance of the common intention of killing him. We, therefore, do not
12 Mahbub Shah v. King Emperor, AIR 1945 PC 118, pp. 153154.
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find that the appellants suffered any adverse effect when the High Court
held the three of them individually guilty for the offence of attempted
murder, without the aid of Section 149 IPC.
24. We have no doubt that on facts, an offence under Section 307 IPC
is clearly made out against each of the three appellants. The medical
experts have in their depositions clearly explicated that the weapons
used and the injuries inflicted were more than sufficient to cause death
in ordinary course of nature. The appellants made death threats to the
complainant on 24.01.1998 and then they used sharp edged weapons
the very next day and further declared that they would not rest till they
killed the complainant. It manifests the appellant’s intention to inflict
bodily injury knowing fully that such injuries would ordinarily lead to the
complainant’s death. The recovery of the axe (kulhari) from Rohtas, which
is on the record as ExhibitP7, further punches holes in the mask of
denial worn by the appellants.
25. The gravity of the injuries is beyond doubt. Not only were there
seven injuries, some of which were deep cuts on vital parts of the body
including on the head (above the ear); but the appellants broke all the
bones in the complainant’s feet below the knee. Most appallingly, the
injuries have led to amputation of an entire limb, leaving the
complainant permanently disabled. This by itself shows the very likely
possibility of the complainant dying if not for the timely intervention of
PW3 and appropriate medical care by PGIMS Rohtak. Given such
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extreme injuries, we can fathom no rhyme or reason for either the
complainant (PW1) or his brother, Balwan (PW3) to falsely implicate the
appellants and allow the actual culprits to go scotfree. On the contrary,
the candour of PW1 and the responses of PW3 inspire confidence and
provide undoubtable explanation of the incident.
26. That apart, even the requirements of Section 34 of IPC are well
established as the attack was apparently premeditated. The incident was
not in a spurofthemoment. The appellants had previously threatened
the complainant with physical harm if he were to attempt to irrigate his
fields. Their attack on 25.01.1998 was thus preplanned and calculated.
There is nothing on record to suggest that the complainant caused any
provocation. Specific roles have been attributed to each of the appellants
by the injured and the solitary eyewitness, establishing their individual
active participation in the crime.
(ii) Independence of witnesses
27. It is true that the duty of the prosecution is to seek not just
conviction but to ensure that justice is done.13 The prosecution must,
therefore, put forth the best evidence collected in the course of
investigation. Although it is always ideal that independent witnesses
come forward to substantiate the prosecution case but it would be unfair
to expect the presence of thirdparties in every case at the time of
incident, for most violent crimes are seldom anticipated. Any adverse
13 Kumari Shrilekha Vidyarthi v. State of UP, (1991) 1 SCC 212.
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inference against the nonexamination of independent witnesses thus
needs to be assessed upon the facts and circumstances of each case. In
fact, it must first be determined whether the best evidence though
available, has been actually withheld by the prosecution for oblique or
unexplained reasons.
28. The present crime took place in a private agriculture field and not
in the middle of a busy public place. The defence has not claimed that
other farmers also gathered at the scene and yet have not been
examined. This shows that the appellants have in fact been blowing both
hot and cold with their arguments. Earlier in the trial they had tried to
discredit the ocular testimony of PW3 by claiming that he might not
have been able to witness the incident owing to standing crops in the
field. Nonetheless, they expect this Court to believe that there could
have been others who witnessed the incident but have deliberately been
suppressed by the prosecution.
(iii) Sentencing and Leniency
29. This leaves us to explore the equitable considerations and plea of
consequential reduction in sentence as has been pleaded by learned
counsel on behalf of the appellants. We have objectively considered this
prayer. We, however, cannot be oblivious of the fact that the appellants
and their deceased coaccused were all armed with deadly weapons. They
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surrounded the complainant and in a brutal attack caused him
gruesome injuries and disabled him for life.
30. The appellants have not undergone even half of their sentence
period. Having enjoyed the more productive part of their lives outside jail
cannot be, per se, taken as a mitigating factor. Any misplaced sympathy
with the appellants is likely to cause injustice to the victim of the crime.
We, therefore, do not find any justification to show leniency and reduce
the sentence.
31. Given that earlier the appellants had been ordered to serve their
two sentences of five years under Section 307 and one year under
Section 148 of IPC concurrently, acquittal in the latter would effectively
have no impact on their outstanding period of sentence.
CONCLUSION:
32. As a sequel to the above discussion, both the appeals are found to
be without any merit so far as conviction of the appellants under Section
307 IPC is concerned, and are dismissed accordingly. However, their
conviction under Section 148 is setaside. Their bail bonds are cancelled
and the State of Haryana is directed to take the appellants into custody
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to serve the remainder of their fiveyear sentence as awarded by the
High Court.
…………………………….. J.
(N.V. RAMANA)
…………………………...J.
(SURYA KANT)
…………………………...J.
(ANIRUDDHA BOSE)
NEW DELHI
DATED : 10.12.2020
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