Binay
Kumar Singh Vs. The State of Bihar [1996] INSC
1365 (31 October 1996)
A.S.
Anand, K.T. Thomas Thomas. J.
ACT:
HEAD NOTE:
A
veritable holocaust took place in a Bihar
village (Paras Bigha in Gaya District) on a moonlit night in early February,
1980. In that massacre lives of 13 human beings were snuffed out and 17 others
were badly mauled, a large number of mute cattle were burnt alive and many
dwelling houses were gutted. The venue of that macabre was the area where
houses of Harijans and people belonging to Backward Classes were clustered
together in Paras Bigha village.
After
investigation the police charge-sheeted 56 persons for various offences
committed in connection with the aforesaid.
Incident,
but due to different reasons only 44 of them were put on trial. Sessions Court
convicted 37 among them of various offences ranging from Section 302 IPC (read
with Section 149) to minor offences such as Section 429 IPC and sentenced them
to rigorous imprisonment for 10 years for the principal offence and to lesser
terms of imprisonment for the lesser offences. The Patna High Court confirmed
the conviction and while dealing with the sentences rectified an illegality in
awarding a sentences of imprisonment only for 10 years for the offence under
Sections 302/149 IPC by enhancing it to imprisonment for life. The maximum fine
imposed by the Sessions Court was reduced from Rs.5,000/- to Rs. 3,000/- and
made it applicable to all the convicted accused. We are now dealing with the
appeals filed by the convicted persons in this Court by special leave.
During
the pendency of these appeals the appellant in Criminal Appeal No.91 of 1994 (Surendra
Prasad Singh) died and hence his appeal has abated. We may point out that
appellant Moiddin Mian(ranked as 7th accused in the trial court) has not filed
any appeal before the High Court and hence the conviction and sentence passed
on him remained unchallenged. He is one of the many appellants arrayed in
Criminal Appeal NOs.280-283 of 1987 in this Court. But he could not have Come to
this Court without approaching the High Court in appeal first. We, therefore
record that his appeal before us is not maintainable and hence the conviction
and sentence passed on him the Sessions Court would remain undisturbed. We,
therefore dismiss his appeal filed in this Court.
Due to
the crowding of many accused person in this case we deem it convenient to refer
to the individual appellant as far as practicable by the rank in which the were
arrayed in the trial Court. We do not think it necessary to mention the facts
elaborately yet a brief narration of the story would be advantageous to deal
with the questions raised before us.
One
Ram Niranjan Sharma (father of A-3 Madan Mohan Sharma) was Killed on 28.10 1979
for which the police charge-sheeted certain persons including Sukhdev Bhagat
(PW- 32) and some other prosecution witnesses who were all inhabitants of the
venue of this crime. From then onward tension was mounting up this lacality.
Police patrol as well as bandobust were provided and some measures, such as
initiation of security proceeding under Section 107 of the Code of Criminal
Procedure (for short 'the Code') for easing down the tension and to preserve
law and order situation, were adopted but the Police perambulation was
subsequently lifted. On the occurrence night these appellants and lot of their
henchmen formed themselves into an unlawful assembly arming themselves with
deadly weapons, gun, rifles and cutting instruments. When the inhabitants of
the place Of occurrence were sleeping the rioters made a blitz on them around
11 in the night. Many houses occupied by the victims in this case were set on
fire and (heap of straws) were set blaze. The occupants who emerged out of the
burning houses were sot at by the appellant though some of them could escape
either by fleeing off or by hiding from then spewing barrels of the firearms
which prowled for them. when the assailants were satisfied that they had
accomplished their objects they. all retreated from the scene.
The
Sub-Inspector of Jehanabad Police Station got information From Rabindra Bhagat
(PW-36) about some serious occurrence involving arson and a large number of
people He then rushed to the scene. He spotted PW-32 (Sukhdev Bhagat) and
elicited statement from him (Ext.14). he Forwarded it to the Police Station
where an Fir was prepared on its basis. Investigation was commenced and
inquests were held autopsy on the dead bodies was arranged and hospitalisation
of the injured was ensured. On completion of the investigation charge sheet was
laid as aforesaid.
We do
not propose to refer to the evidence regarding the injuries sustained by the
victims nor to the records showing the extensive damage inflicted on the cattle
as well as to the dwelling houses. The trial court and High Court have dealt with
those aspects in extenso and reached findings substantially in favour of the
prosecution. In fairness to all the learned senior counsel(who argued for the
appellants) we must observe that none of them disputed before us that on the
dreadful night the devastating carnage took place at this place in which those
13 persons died and a number of other persons were injured at the hands of
armed assailants. The nub of the points stressed by the leaned counsel is that
these appellants were not the miscreants involved in the incident. In other
words, basically the only point now to be considered is whether appellants were
also among the assailants in the said occurrence ? A number of witnesses
examined by the prosecution have identified these assailants in the trial
court. Leaned Sessions Judge and the High court did place reliance on the
evidence of large of such witnesses on that aspect.
However,
the trial court did not act on the evidence of Raja Dev Bhagat (PW-5), Peru Bhagat
(PW-2), Feken Yadav (PW-17) and Chandrika paswan (PW-19).
Learned
counsel pointed out that neither the trial court nor the High court has treated
Ext.14 (statement of PW-32 sukh Dev Bhagat) as forming the FIR in this case,
instead the statement made by PW-36 Ravindra Bhagat which was marked as
Ext.10/3 was treated as the FIR. True it is that before the Sub Inspector of Jehanabad
Police Station (PW-42 Kalika Prasad) could record the statement of Sukhdev Bhagat
(PW-32) some information had already reached the Police Station when Rabindra Bhagat
(PW-36) went there by early morning. It has been marked as Ext 10/3. That
information was entered in the station diary in the following words.
At
this time Rabindra Bhagat Son of Soharai Bhagat resident of Paras Bigha, P.s Jahanabad
came to Police Station accompanied by Bhangi Yadav resident of village Titai Bigha
and gave the information that the sons (probably he meant sons and grand sons)
of late Ram Niranjan Sharma had collected with large number of persons in his
collected, with large number of persons in his village and they have set fire
to the houses and piles of straws and had fled away seeing the fire and he was
not aware of the full facts as to what had happened." But we do not find
any error on the part of the police in not treating Ext 10/3 as the first
information statement.
for
the purpose of preparing the FIR in this case It is evidently a cryptic
information and is hardly sufficient for discerning the commission of any
cognizable offence therefrom. Under Section 154 of the Code the information
must unmistakably relate to the commission of a cognizable offence and it shall
be reduced to writing (if given orally) and shall he signed by its maker. The
next requirement is that the substance thereof shall be entered in a book kept
in the police station in such form as the State Government has prescribed.
First Information Report (FIR) has to be prepared and it shall be forwarded to
the magistrate who is empowered to take cognizance of such offence upon such
report. The officer incharge of a police station is not obliged to prepare FIR
on any nebulous information received from somebody who does not disclose any
authentic knowledge about commission of the cognizable offence. It is open to
the officer incharge to collect more information containing details about the
occurrence, if available, so that he can consider whether a cognizable offence
has been committed warranting investigation thereto. (Tapinder Singh vs. state
of Punjab, 1971 (1) SCR 599; Some Bhai vs. state of Gujarat AIR 1975 SC 1453;
sc 1453; State of U.P. vs. P.A.Madhu AIR 1984 sc 1523).
Learned
counsel who argued for the appellant, however, contended that first information
statement in this case is neither Ext.14 nor Ext.10/3, but it should have been
the statement which PW-32 (Sukhdev Bhagat) had given before Jehanabad Police
Station much prior to the other two statements. Learned counsel submitted that
the police had, for reasons best known to them, hushed up that statement.
Basis
for the above submission is the evidence given by DW- 19 ( Nawal Kishore Prased)
a member of the Board of Revenue of the State of Bihar who conducted an official enquiry into the administrative
lapses involved in this incident. Of course, DW-19 claimed that one Sukhdev Bhagat
had told him during such enquiry that his first statement was not recorded at
the village but at the police station.
In
this context, we may point out that Sukhdev Bhagat (PW-32) has stated in his
evidence in the trial court that many officials would have recorded his
statements though he could not remember precisely whether an officer by name, Nawal
Kishore Prasad would have examined him. PW-32 has further said in his evidence
that Ext.14 statement was recorded at the place of occurrence and that he had
not given any other statement to the police. If he was to be contradicted with
any other statement, the defence should have adopted the procedure prescribed
in Section 145 of the Evidence Act. Learned counsel contended that it is enough
if he was asked questions in cross-examination with reference to such
statement. In support of it he relied on the decision of this Court in Bhagwan
Singh State of Punjab, AIR 1952 SC 214.
The
credit of a witness can be impeached by proof of any statement which is
inconsistent with any part of his evidence in court. This principle is
delineated in Section 155(3) of the Evidence Act and it must be borne in mind
when reading Section 145 which consists of two limbs. It is provided in the
first limb of Section 145 that a witness may be cross-examined as to the previous
statement made by him without such writing being shown to him. But the second
limb provides that "if it is intended to contradict him by the writing his
attention must, before the writing can be proved, be called to those parts of
it which are to be used for the purpose of contradicting him." There is
thus a distinction between the two vivid limbs, though subtle it may be. The
first limb does not envisage impeaching the credit of a witness, but it merely
enables the opposite party to cross-examine the witness with reference to the
previous statements made by him. He may at that stage succeed in eliciting
materials to his benefit through such cross-examination even without resorting
to the procedure laid down in the second limb. But if the witness disowns
having made any statement which is inconsistent with his present stand his
testimony in Court on that score would not be vitiated until the corss-examiner
proceeds to comply with the procedure prescribed in the second limb of Section
145.
In Bhagwan
Singh's case, Vivian Bose J. pointed Out in paragraph that during
Cross-examination of the witnesses s concerned the formalities prescribed
Section 145 are complied With. The cross-examination in that case indicated
that every circumstance intended to be used as contradiction was put to him
point by point and passage by passage.
Learned
Judges were called upon to deal with an argument that witnesses attention
should have been specifically drawn to that passage in addition thereto. Their
Lordships were however satisfied in that case that the Procedure adopted was in
substantial compliance with Section 145, and hence held that all that is
required is that the witness must be treated fairly and must be afforded a
reasonable oportunity of explaining the contradictions after his attention has
been drawn to them in a fair and reasonable manner. On the facts of that case,
there is no dispute with the proposition laid therein.
So
long as the attention of PW 32 (Sukhdev Bhagat) was not drawn to the statement
attributed to him as recorded by DW-19(Nawal Kishore Prasad) we are not
persuaded to reject the evidence of PW 32 that he gave Ex.14 statement at the
venue of occurrence and that he had not given any other statement earlier
thereto.
Learned
counsel for the appellant next pointed out as a peculiar feature in the case
that none of the injured had identified the assailants (except two or three
appellants) but only those witness who did not sustain any injury have claimed
to have identified a bulk of them. Even if so, it cannot have any adverse
impact on the credibility of the witness relied on by the two courts as it
could happen many a times that person sustaining injuries in a mass of attack
night not be in the same position to observe men and events as the non injured
persons. It is quite probable that the vision of the injured might get blurred,
as their focus of attention would instinctively get diverted to the injuries
sustained by them. They could then be in a less advantageous position to watch
or observe the events than the non-injured witnesses.
That
apart, there is no justification in drawing a hiatus between injured witnesses
and noninjured witnesses in this case as for the capacity to identify the
assailants while in action. PW-4 (Babanand Bhagat), PW-9 (Doman Bhagat), PW-14
(Krishna Das), PW-27 (Damyanti Devi), PW-33 (Ajay Kumar) are the witnesses who
sustained injuries in this episode. Among them PW-14 is a small boy who said he
got up from sleep on hearing gun shots and even at the first sight of
occurrence he fell under a shock and become unconscious. The other injured
witnesses have said that they woke up from sleep and on seeing the surroundings
in flames, they ran for life and some sustained gun shots during the flight
while the others sustained burns. If this was the position, we cannot find
fault with then as to their inability to identify a good number of assailants.
Some
of the appellants have putforth the plea of alibi.
The
appellants who resorted to the plea of Alibi in this case are A-1 (Krishnadev),
A-2 (Shyam Sunder Singh), A-3 (Madan Mohan Sharma ) and A-34 (Vinay kumar
Singh). As against the testimony of a large number of witnesses who claimed to
have noticed those appellants actively participating in the occurrence the
above noted appellants have led evidence to show that during the relevant time
they were at far away places. Such plea was emphatically reiterated by the
learned counsel in this Court also.
According
to the appellants - Krishnadev (A 1) and Shyam Sunder Singh (A-2) on 5.2.1980
evening they were arrested by police in connection with case No.9(2)90 of Kankerbagh
police station and was remanded to judicial custody by the Chief Judicial
Magistrate, Patna and were interned in the Central Jail, Patna where they
remained till 19.2.1980 and were shifted to sub jail at Jehanabad where they
remained till 23.2.1980 until they were released on bail. Those appellants
examined official and non-official witnesses to prove the plea of alibi; the
Public Prosecutor in the trial court had mounted a severe onslaught on the said
plea by contending that jail records were manipulated at the instance of these
appellants, though perhaps in the later period of incarceration in connection
with the said case those accused might have been detained in jail.
Appellant
Madan Mohan Sharma (A-3) advanced his plea of alibi by saying that he was on
the security guard o a Minister of the Bihar Government (Thakur Prasad Singh -
DW 38) and that on the night of 6.2.1980 a dinner was hosted by that Minister
in his official residence and that A-3 (Madan Mohan Sharma) was then attending
his security duty at the residence of the Minister. The said appellant examined
a number of witnesses including the Private Secretary to the Minister and some MLAs,
besides the Minister himself, to establish his plea. Public Prosecutor who crossexamined
the witnesses took the stand that PW-38 had stopped down to speak to the false
evidence only to salvage himself from the murk of accusation flung on him
inside the legislative assmebly that someone in his personal staff played the
main role in the carnage which shocked Bihar State.
Appellant,
Binay Kumar Sharma (A-32) adopted the defence that he was admitted as an
inpatient at Nalanda Medical College Hospital with accute appendicitis and was treated there for a long
period which covered this crucial period of 6.2.1980 also. He examined Dr. Binod
Bihari Sinha (DW-6) and DIG of Police Kapil Dev Dubey (DW-8) to prove his plea.
The Public Prosecutor who cross-examined those witnesses assailed DW6 - Doctor
suggesting that he became privy to the fabrication of documents to concoct the
plea of alibi.
The
trial court and the High Court concurently replelled in toto, the plea of alibi
putforth by the above appellants after dealing, in extenso, with the materials
produced them in the Court in support of the plea. Learned counsel who argued
for the appellants in this Court submitted first that the strict view adopted
by the two Courts bellow that unless the plea of alibi is conclusively eastablished
no benefit. would enure to the accused, is not a sound proposition in criminal
cases. Learned counsel further contended that if an accused succeeded in
creating a reasonable doubt regarding the- possibility of himself to be
elsewhere then the plea of alibi need acceptance.
We
must bear in mind that alibi not an exception (special or general) envisaged in
the Indian Penal code or any other law. It is only a rule of evidence recognised
in Section 11 of the Evidence Act that facts which are inconsistent with the
fact in issue are relevant.
Illustration
(A) given under the provision is worth reproducing in this context:
"The
question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant." The Latin word
alibi means "elsewhere" and that word is used for convenience when an
accused takes recourse to a defence line that when the occurrence took place he
was so far sway from the place of occurrence that it is extremely improbable
that he would have participated in the crime. It is basic law that in a
criminal case, in which the accused is alleged to have inflicted physical
injury to another person, the burden is on the prosecution to prove that the
accused was present at the scene and has participated in the crime. The burden
would not be lessened by the mere fact that the accused has adopted the defence
of alibi The plea of the accused in such cases need be considered only when the
burden has been discharged by the prosecution satisfactorily. But once the
prosecution succeeds in discharging the burden it is incumbent on the accused,
who adopts the plea of alibi to prove it with absolute certainty So as to
exclude the possibility of his presence at the place of occurrence. When the
presence of the accused at the scene of occurrence has been established
satisfactorily by the prosecution through reliable evidence, normally the court
would be slow to believe any counter evidence to the effect that he was
elsewhere when the occurrence happened.
But if
the evidence adduced by the accused is of such a quality and of such a standard
that the court may entertain some reasonable doubt regarding his presence at
the scene when the occurrence took place, the accused would no doubt, be
entitled to the benefit of that reasonable doubt. For that purpose, it would be
a sound proposition to be laid down that in such circumstances, the burden on
the accused is rather heavy. It follows, therefore, that strict proof is
required for establishing the plea of alibi. This Court has observed so on earlier
occasions (vide Dudh Nath pandey vs state of Utter Pradesh (1981) 2 SCC 166;
state of Maharashtra vs Narsingrao Gangaram Pimple AIR
1984 SC 63).
The
appellants Krishnadev (A-1) and Shyam sunder Singh (A-2) adopted the defence
that they were taken to Central Jail, Patna on 5.2.1980 on a remand order passed by the Chief Judicial Magistrate, Patna. We need not vex our mind with the
evidence pertaining to the internment of those appellants in the sub-jail, Jehanabad
from 19.2.1980 till 23.2.1980 Let that be as they say. But their detention in
the Central Jail) Patna from 5.2.1980 which continued any day beyond 6.2.1980
is the crucial period so far as this case is concerned In considering that. crucial
aspect the first question to be pondered over is, why should they have been
arrested at all. Their case is that one Anil Kumar lodged a complaint with the
police alleging that these two appellants had snatched Rs.10/-from one of the
and so an FIR was registered against them which included the offence under Section
379 IPC and the arrest is said to have been made on its basis. The two Courts
below have observed that the said Anil Kumar is a fictitious character and he
was never traced out Later. It was beyond comprehension for the two Courts as
to why these two appellants did not even move for bail inspite of very clear
advantageous factors for them. One is, they are nephews of appellant Madan
Mohan Sharma (A-3) who was a police personnel on the security of one of the
Ministers and he was stationed at Patna itself.Second is, bailing out the
appellants would have been only a matter for making a motion as the offences
lodged against them were seemingly trivial. Besides those incongruity, the very
unsatisfactory way the gate register of the Central Jail, Patna was maintained has been
specifically noticed by the two Courts. In view of all such broad circumstances
the trial judge agreed with the contention of the public prosecutor that a
bogus complaint with the fictitious complaint would have been created in
advance for using it for a plea of alibi. After exhaustively dealing with the
evidence on this aspect, the High Court also concurred with that view.
Of
course, Sri UR Lalit, learned Senior Counsel has vehemently argued that the
courts should have presumed the genuineness of all official records and
accepted the proof as more than reasonably sufficient to discharge their
burden. We shall not forget that presumption is only a rule in the realm of
burden of proof and the reasons concurrently weighed with the two courts below
for disbelieving the plea of alibi put forth by these two appellants are quite
sturdy.
At any
rate, in an appeal by special leave granted under Article 136 of the
Constitution, this Court would not be inclined to upset the finding of fact
based on such weighty reasons, more so when the reasons advanced by both the
courts in support of the finding appeal to us also.
Sri UR
Lalit, learned Senior Counsel, next contended that the plea of Alibi advanced
by the appellant Madan Mohan Sharma (A-3) that he was on guard duty in the
Minister's bungalow should have been accepted. The distance between the
Minister's residence and the place of occurrence is 60 Kilometres. It is
possible for anyone to cover the said distance in two hours. Perhaps, he was
doing guard duty in the bungalow of the Minister but to hold that he was at the
Minister's bungalow on the night of 6.2.1980 the evidence must be very
credit-worthy. Those defence witnesses who have spoken to this aspect,
including the Minister himself (DW- 36), have simply said long after that date
that one particular person was doing guard duty on 6.2.1980. It should be
remembered that Madan Mohan Sharma (A-3) had no special role to play during the
dinner hosted by the Minister. The witness could not say who were the other
persons on guard duty on any other day. Those aspects apart, it is revealed in
the evidence of the Minister (DW-36) that on the next day of occurrence a furore
had erupted in the Bhiar legislative Assembly with the allegation that a member
of the personal staff of the Minister, by name Madan Mohan Sharma, was involved
in the Paras Bigha massacre and then the Minister has said on the floor of the
Assembly that Madan Mohan Sharma was not on his personal staff but was only a
security guard. He did not say, in the Legislative Assembly, that Madan Mohan
Sharma was at his official residence at Patna during the relevant time. For
these reasons, we are satisfied that the trial court and the High Court have
rightly rejected his plea of alibi.
Sri Sushil
Kumar, learned Senior Counsel arguing for the appellant Binay Kumar Singh
(A-34) pursued the plea of alibi put forth by that accused in the trial court.
He examined one Dr. Binod Bihar Singh who was Associate Professor of Medicine
at Nalanda Medical College, Patna as DW-36. The witness of course, said that
appellant Binay Kumar Singh was admitted as an in-patient of the said Medical
College Hospital for appendicitis and was not in a position to move out of his
bed even on 6.2.1980. The witness said this with reference to the Bed-head
Ticket produced by him. But the cross-examination of DW-6 has exposed the
falsity of his evidence. That a patient admitted for acute case of appendicitis
in a Medical College Hospital was never shown to a surgeon creates a serious doubt
as to whether this appellant was really admitted in that hospital as claimed by
DW6. The witness said in cross-examination that the patient left the hospital
soon after his admission but again returned on the next day. PW-6 also admitted
that the Bed-head Ticket referred to by him did not contain any entry made by
him. No mark of identification of the patient was noted in such bed-head Ticket
and DW-6 had no previous acquaintance with this appellant. No other document
was produced to support the plea. On such a meagre and unsatisfactory evidence,
the two Courts below have rightly discarded his plea of alibi.
Turning
back to the prosecution evidence regarding identification of the appellants Sri
Sushil Kumar, learned Senior Counsel adverted to certain anomalies which crept
in the deposition of some witnesses; one such anomaly relates to the evidence
against appellant Binay Kumar Sharma.
There
were two accused in this case bearing that name Binay Kumar Sharma. One of them
is the appellant in Criminal Appeal No.277 of 1987 and he was arrayed as A-34
in the trial court. The other Binay Sharma is from Sarthua Village and he has jumped the bail and hence his trial was
separated from the rest of the accused as per order of the trial court dated
15.5.1982. It is true that PW-11 ( Mithlesh Paswan ) who was examined in Court
on 29.11.1982 mentioned two persons as Binay Sharma as having been identified
by him. On the strength of it, learned senior counsel tried to make out a
strong point as seriously affecting the prosecution case against appellant Binay
Kumar Sharma (A-34). At the first blush, we too felt that it has some serious
implication on the identification evidence of that appellant, but on closer
scrutiny, we are convinced that there is no merit in that contention. What
PW-11, in fact, said was that he recognised those two persons ticipating in the
occurrence. It was not as though he identified two persons in the trial court
bearing that name from out of the accused arrayed.
Arguments
were addressed before us for reappreciation of evidnece of the eye-witnesses on
the strength of some discrepancies highlighted from their testimony. But we are
not disposed to disturb the concurrent finding regarding reliability of the
evidence of those witnesses on such discrepancies as they do not appear to us
to be material or serious.
We
have noticed that Mritunjaya (A-23) and Parmanand Sharma) and Madan Mohan
Sharma son of Ambica (A-24) were identified by more than two two witnessas as
participants in the occurrence. Out of those witness the testimony of PW-10 and
PW-32 was accepted by both courts. As for the remaining appellants both courts
have accepted the testimony of at least three witnesses each as referring to
each appellant.
There
is no rule of evidence that no conviction can be based unless a certain minimum
number cf witnesses have identified a particular accused as member of the
unlawful assembly. It is axiomatic that evidence is not to be counted but only
weighed and it is not the.quantity of evidence but the quality that matters.
Even the testimony of one single witness, if wholly reliable, is sufficient to
establish tho identification of an accused as member of an unlawful assembly.
All the same when size of the unlawful assembly is quite large(as in this case)
and many persons would have witnessed the incident, it would be a prudent
exercise to insist on at least two relaible witnesses to vouchsafe the
identification of an accused as participant in the rioting.
In Masalti
vs. The State of utter Pradesh (AIR 1965 SC 202), a Bench of four Judges Of
this court has adopted such a formula. It is useful to extract it here :
"Where
a criminal court has to deal with evidence pertaining to the commission of an
office involving a large number of offence and a large number of victims, it is
usual to adopt the test that the conviction could be sustained only if it is suported
by two or three or more witnesses who give a consistent account of the
incident." We feel that the said proposition can profitably be followed in
this case also as the said proposition has stood the test of time.
We are
satisfied that the two courts have considered the evidence form the correct
angle and found the appellants guilty of the offences keeping in view the above
proposition. There is no reason for us to interfere with the conviction and
sentences passed on the appellants. The appeals are accordingly dismissed Bail
bonds executed by the appellants shall stand cancelled. They shall be taken
into custody to undergo the remaining part of sentence.
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