# 529· RAJMKANT v. STATE OF MAHARASHTRA

- **Citation:** [1971] 2 S.C.R. 529
- **Court:** Supreme Court of India
- **Decided:** 1970-09-30
- **Case number:** Criminal Appeal No. 380 of 1968
- **Bench:** S. M. SlKRI, K. S. Hegde, I. D. DuA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/529-rajmkant-v-state-of-maharashtra-5169
- **Pages:** 8

## Headnote

Appeal-Conviction under Ss. 326 a11d 324 I.P.C.-High Court' dismjssing appeal .su111marily without giving any reason-_// desirable cours¢-
Necessity for giving reasons to enable Supren1e Court properly to· exercise
its power under Article 136 of the Cqnstitution,
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The appellant was convicted by the Trial court for offences under
Sections 326 and 324 I.P.C. for having voluntarily caused grievous hurt
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with a dangerous weapon to one person, and for 'causing hurt to three
other persons.
He was sentenced to imprisonment for four years for his
conviction under Sectiun 326 and for 1! years for each of the three
offences 11r,Jt:r Section 324, all sentences to run concurrently.
The appellant filed an appeal against his conviction to the High Court at Bombay
0
but his appeal was dismissed by the Court with one word "dismissed".
In appeal to this
Court by special leave
under
Article
136, it·
was contended on behalf of the appellant that the injuries complained of
were inflicted by him in the exercise of his lawful and legitimate right
of self-defence.
It ~1.as also contended that the statements of three of
the eye witnesses made in the committing Court from which they-had
resiled at the trial should not have been acted upon by the Trial Court
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in support of the prosecution version; and that the only witness who did
not resile from the. statement in the committing Court was._ a highly interested witness in that he was the person' on whom injuries were stated h>
have been inflicted by the appellant: therefore his evidence should not·
have been implicitly accepted.
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HELD : dismissing the appeal,
(i) Oi:t the evidence, the plea of self defence taken by the appellant
could not be sustained.
Furthermore the statements of the three witnesses
in the committing court from which they resiled at the trial and which
were duly brought on the record of the trial court under. Section 288
Cr. P.C. constituted substantive evidence and if the court was satisfied
that those statements were true whereas those made in the trial court were
untrue, then the earlier statements could safely be relied upon to sustain
the conviction.
In this case a mere reading of the statements at the trial
demonstrated their unconvincing nature and it was clear that there was
some u1terior motive for the witnesses to resite from the earlier statements which appeared to have a ring of truth about them. The trial
court was therefore right in convicting the appellant for offences under
Ss. 326 and 324 I.P.C. J;536 B-D]
(ii) On reading the judgment of the learned Additional Sessions Judge
and the memorandum of the grounds of appeal in the High Court it
was clear that the· summary dismissal of the appeal by the High Court ·
with -one word "dismissed" without
indicating its views on the points
raised in the appeal which appeared to be arguable was not right. This
530
SUPREME COURT REPORTS
[1971) 2 S.C.R.
•Court has repeatedly pointed out that when an appeal to the High Court
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u!lder the Code of Criminal Procedure raises some arguable points. the
High Court would be well-advised to give some indication of the reasons
for its view while repelling those points.
Without having the benefit of
the opinion of the High Court, this Court is likely to feel embarrassed in
dealing with those points on appeal by special leave, [530 H-531 CJ
Mustak Hussein v, The State of Bombay, [1953] S.C.R. 809 at 820
and Challappa Ramaswami v. State of Maharashtra [1970] (2) S.C.R. 426;
B
referred to.
Section 4!0 Cr.P.C. confers a right of appeal to the High Court on
a person convicted on a trial held by a Sessions Judge or an Additional
Sessions Judge. This right entitles the aggrieved party to challenge conclusions of facts and to claim reappraisal of evidence.
It would, therefore, be conducive to the ends of justice if the High Courts were as a
general rule to let this Court have the benefit of their valuable opinion
C
in cases which raise arguable points whether on facts or on law so as
to enabl

## Text

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529·
RAJMKANT
v.
STATE OF MAHARASHTRA
September 30, 1970
[S. M. SlKRI, K. S. HEGDE AND I. D. DuA, JJ,]
Appeal-Conviction under Ss. 326 a11d 324 I.P.C.-High Court' dismjssing appeal .su111marily without giving any reason-_// desirable cours¢-
Necessity for giving reasons to enable Supren1e Court properly to· exercise
its power under Article 136 of the Cqnstitution,
C
The appellant was convicted by the Trial court for offences under
Sections 326 and 324 I.P.C. for having voluntarily caused grievous hurt
-
with a dangerous weapon to one person, and for 'causing hurt to three
other persons.
He was sentenced to imprisonment for four years for his
conviction under Sectiun 326 and for 1! years for each of the three
offences 11r,Jt:r Section 324, all sentences to run concurrently.
The appellant filed an appeal against his conviction to the High Court at Bombay
0
but his appeal was dismissed by the Court with one word "dismissed".
In appeal to this
Court by special leave
under
Article
136, it·
was contended on behalf of the appellant that the injuries complained of
were inflicted by him in the exercise of his lawful and legitimate right
of self-defence.
It ~1.as also contended that the statements of three of
the eye witnesses made in the committing Court from which they-had
resiled at the trial should not have been acted upon by the Trial Court
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in support of the prosecution version; and that the only witness who did
not resile from the. statement in the committing Court was._ a highly interested witness in that he was the person' on whom injuries were stated h>
have been inflicted by the appellant: therefore his evidence should not·
have been implicitly accepted.
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HELD : dismissing the appeal,
(i) Oi:t the evidence, the plea of self defence taken by the appellant
could not be sustained.
Furthermore the statements of the three witnesses
in the committing court from which they resiled at the trial and which
were duly brought on the record of the trial court under. Section 288
Cr. P.C. constituted substantive evidence and if the court was satisfied
that those statements were true whereas those made in the trial court were
untrue, then the earlier statements could safely be relied upon to sustain
the conviction.
In this case a mere reading of the statements at the trial
demonstrated their unconvincing nature and it was clear that there was
some u1terior motive for the witnesses to resite from the earlier statements which appeared to have a ring of truth about them. The trial
court was therefore right in convicting the appellant for offences under
Ss. 326 and 324 I.P.C. J;536 B-D]
(ii) On reading the judgment of the learned Additional Sessions Judge
and the memorandum of the grounds of appeal in the High Court it
was clear that the· summary dismissal of the appeal by the High Court ·
with -one word "dismissed" without
indicating its views on the points
raised in the appeal which appeared to be arguable was not right. This
530
SUPREME COURT REPORTS
[1971) 2 S.C.R.
•Court has repeatedly pointed out that when an appeal to the High Court
A
u!lder the Code of Criminal Procedure raises some arguable points. the
High Court would be well-advised to give some indication of the reasons
for its view while repelling those points.
Without having the benefit of
the opinion of the High Court, this Court is likely to feel embarrassed in
dealing with those points on appeal by special leave, [530 H-531 CJ
Mustak Hussein v, The State of Bombay, [1953] S.C.R. 809 at 820
and Challappa Ramaswami v. State of Maharashtra [1970] (2) S.C.R. 426;
B
referred to.
Section 4!0 Cr.P.C. confers a right of appeal to the High Court on
a person convicted on a trial held by a Sessions Judge or an Additional
Sessions Judge. This right entitles the aggrieved party to challenge conclusions of facts and to claim reappraisal of evidence.
It would, therefore, be conducive to the ends of justice if the High Courts were as a
general rule to let this Court have the benefit of their valuable opinion
C
in cases which raise arguable points whether on facts or on law so as
to enable this Court satisfactorily to exercise its power under Art. 136
and dispose of the appeal finally.
[In order to avoid further delay in
the disposal of the present case the Court decided to go into the evidence-a course this Court is
normally reluctant to adopt in
appeals
under Art. 136-because this case prima facie raised arguable points].
(531 D-Fl
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(iii) Although this
Court would not
normatly interfere with the
quantum of sent.ences on appeal under Art. 136, in the present case as
the High Court had erroneously dismissed the appeal summarily without
giving the reasons, this was a fit case where this Court on a cono;;ideration
of the relevant circumstances could go into the question of !'entences
itself (th<: Court held that the sentence of two years imprisonment would
·meet the ends of justice). (536 E]
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No .
. 99 of 1968.
Appeal by special leave from the order dated March 28, 1968
of the Bombay High Court in Criminal Appeal No. 380 of 1968.
V. M. Tarkunde, N. H. Hingorani and K. Hingorani, for the
.appellant.
M. C. Bhandare 3ll1d S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Dua, J. This is .an appeal by special leave from the judgment
of the High Court of Judicature at Bombay dated March 28,
1968 si;mmarily dismissing the appellant's appeal
against
his
conviction by the Additional Sessions Judge, Greater Bombay for
uffences under ss. 326 and 324, I.P.C. The High Court disposed
·of his appeal with one word "dismissed".
At the outset we must point out that on reading the judgment
'Of the learned Additional Sessions Judge and the memorandum of
the grounds of appeal in the High Court we felt that the summary
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RAJNJKANT v. MAHARASHTRA (Dua, J.)
531
dismissal of the appeal by the High Court with one word "dismissed" without indicating its views on the, points rai~ed in .the'
appeal which clearly appears to us to be arguable was not right.
This Court has repeatedly pointed out. that when an appeal to the
High Court under the Code· of Criminal Procedure raises some
arguable points the High Court would be well advised to give
some indication of the reasons for its view while repelling those
points.
Without having the benefit of the opinion of the High
Court this Court is likely to feel embarrassed in dealing with
those points on appeal by special leave. [see Mushtak Hussain v.
The State of Bombay(') and Chalklppa Rama,swami v. State of
Maharashtra(')].
We would like once again to emphasise that
Art. 136 of the Constitution does not confer a right of appeal on
a party aggrieved by the decision of a High Court : it mere!}
confers on this Court a discretionary power to interfere in suitable cases.
For judicious exercise of this power this Court expects the High Courts to record speaking orders; however sketchy,
even while summarily dismissing appeals which raise arguable
points. Section 410, Cr. P.C., it is worth noting, confers a right
of appeal to the High Court ori a person convicted· on a trial
held by a Sessions Judge or an Additional Sessions Judge. This
right entitles the aggrieved party to challenge conclusions of facts
and (o claim reappraisal of evidence.
It would, therefore, be
conducive to the ends of justice if the High Courts were as a
general rule to let this Court have the benefit of their valuable
opinion in cases which raise arguable points whether on facts or
on Jaw so as to enable this Court s:itisfactorily to exercise its
power under Art. 136 and dispose of the appeal finally. In the
absence of a speaking order of the High Court this Court may
have to remand the cases to the High Courts for re-hearing and
recording reasons for their conclusions, to the avoidable harassment of the accused persons concerned and delay in the final disposal of criminal cases.
In the present appeal to avoid further
delay in the disposal of the case we chose to go into the evidence
ourselves--a course which normally this Court is reluctant to
adopt in appeals under Art. 136-because we felt that it did
prima facie raise arguable pqints.
The appellant Rajni alias Bal Ghanshyam Gadkar was charg~
ed with an offence of attempted murder under s. 307, 1.P.C. for
having stabbed Namdeo Keshav Padte (P.W. 2) With a knife
on June 21, 1966. In the alternative he was charged under s.
326, I.P.C. with the offence of having voluntal(ly caused the said
Padte grevious hurt with a dangerous weapon "(knife). He was
further charged with three offences under s. 324, I.P.C. for having
(I) [19S3J S. C.R. 809 at ~20.
(2) [1970) 2 S. C.R. 426.
532
SUPREME COURT REPORTS
(1971] 2·S.C.R,
voluntarily ca11-sed in the same transaction hurts to Vasant Narayan Shi.(ide, Promod Dattaram Chavan and to Sudam Mahadeo
Khanvilkar. The trial court convicted the appellant under s. 326,
l.P.C. inStead of s, 307, I.P.C. for stabbing Padte and sentenced
him to rigorous imprisonment for four years. It also convicted
him under s. 324, l.P .. C. for causing hurt to the other three per·
sons and . sentenced him to rigorous imprisonment for one and' a
half years for each of the three offences. All the sentenc~s were
directed to run concurrently.
Shri Tarkunde, learned counsel: for the appellant, took us
thr:iugh the relevant record. for the purpose of showing that the
assessment of the evidence liy the trial court was .erroneous and,
therefore, unsustainable. We were constrained to permit him to
refer to the evidence as we did not have the benfit of knowing the
reasons which had prevailed with the High Court in agreeing with
the ultimate conclusions of the trial court. The occurrence took
place at 9 p.m. on June 21, 1966 in the 10th Lane of Kerwadi,
Bombay and the F.l.R.. was lodged by Namdeo Krshav Padte
{P.W. 2 )at 10-30 p.m.
the same night at the police station,
l,amington Road.
According to this
report Padte's
cousin
Dattatraya Gajanan More (P.W. 8) who wanted to purchase a
scooter had for that purpose approached one Vinod Nimbelkar
(P.W. 3) known to Padte. More had told Padte that the former
had paid a sum of Rs. 5 or,6 thousand to the accused Rajni
through Nimbelkar.
The accused neither gave the scooter nor
returned the money.
On being approached by More for the
remrn of the money he was put off on various pretexts. More
had about two days earlier instructed Padte to go to Rajnikatit
with Nimbelkar to• get l)ack .the money. Accordingly on June 20,
in the evening Padte contacted Rajinikant at his residence but he
was told that Rajnikant had returned the money to Nimbelkar
at about 3 p.m.
On the date of the occurrence Padte returned
home at about 6 p.m.
He went to Nimbalkar and after taking
him along; they both wer:t to the accused. The accused was not
present at his ·residence but they learnt from his mother that he
would return at about 9 p.m.
Padte and Nimbalkar then went
back to the latter's residence in Sikka Nagar. At about 8-45 p.m.
-when they agrun went to the house of the accused Chavan
(P.W. 5) another resident of Sikka Nagar, also accompanied
them. Shinde (P.W. 4) who was known to Chavan also jointed
them on the· way
They all went to the residence of the accused
at about 9 p.m. !Jut again did not find-him there. While coming
down from the fifst floor of the building they found the accused
with three or four boys.
Nimbalkar asked him as to when he
would return the money.
The accused replied that he did not
recognise Nimbalkar but would settle the matter with More. On
Padte's intervention the accused told ·him also that he did not
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RAJNIKANT v. MAHARASHTRA (Dua, J.)
533
recognise him. When Padte insisted that he had been introduced
to him by Mori: the accused whipped out a knife from the ppcket
of his pants and stabbed him causing injury on the left side of
his stomach and on his left hand. Thereafter the accused stabbed
Shinde and then ran away.
This report was actually recorded
in the J. J. Hospital where R. M. Naik, S. I. Lamington Road
Police Station (P.W. 10) and B. N. Patil, G.S.I. attached to the
same police station (P.W. 12) had gone, on learning on telephone about an assault case in the 10th Lane, Kerwadi and admission of two persons in that hospital. This information was conveyed on telephone from V. P. Road Police Station where Padte
and Shinde had been taken by their friends and from where the
injured persons were taken to the J. J. Hospital in a jeep by
constable Babu Parab (P.W. 9). After registering the crime at
the police station both P.W. 10 and P.W. 12 went to the appellant's residence but found him absent. A watch was kept at his
house.
The appellant was, however, arrested ·at Goregaon on
the following day (June 22, 1966)
and was not medically
examined. He had some injuries on his person.
An abnormal feature in this case is that three eye-witnesses
Shinde (P.W. 4), Chavan (P.W. 5) and Khanvilkar (P.W. 6)
who supported the prosecution case in the
committing court
changed the~r statements at the trial in the court of the Additional
Sessions Judge. They were declared hostile and cross-examined
by the prosecutor and confronted with their earlier statements
from which they had resiled. Nimbalkar '(P.W. 3) who had not
been examined in the committing court also declined to support
the prosecution story when produced as a witness at the trial in
the court of the Additional . Sessions Judge. The !tfOund statea
by him _was that apprehending use of violence and of assaults he
had left the place of occurrence as soon as the quarrel started .
He too was declared hostile and cross-examined. The evidence
'of Padte (P.W. 2) completely supported the prosecution case and
remained unshaken. The statements ef P.Ws. 4, 5 and 6 made
in the committing court were duly broueht on the record under
s. 288, Cr. P.C.,
When confronted with the portions of their
statements made in the committing court, the truth of which they
had denied at the trial, they merely said that they did not know
how those portions came to be recorded.
The trial court after
going through the material on the record came to the conclusion
that the version given by Padte regarding the actual occurrence
was fully established.
The discr~pancies on minor points were
held not to affect the trustworthiness of the witness on the salient
features of the occurrence which fully brought home to the aunellant his guilt. On aopraisal of the entire evidence the appellant
was found euiltv of of.'ences under s. 326 and s. 324, I.P.C.
Und0 r s. ';26, I.P.C. he was sentenced to four years
riQorous
7-436S10 ~,/71
5.34
SUPREME COURT REPORTS
[1971 I 2 S.C.R.
imprisonment and under s. 324 to one and half years rigorous
imprisonment for injuries caused to each one of the three P.Ws.
Shinde, Chavan and Khanvilkar. All the four sentences of imprisonment were to run concurrently
In this Court on behalf of the appellant his learned counsel
Shri Tarkunde very strongly argued that the evidence on the
record and the probabilities of the case show that Padte (P.W. ·2)
and his companions were the aggressors and the appellant was
merely trying to defend himself when he attempted to catch hold
of the knife with which Padte had threatened to
attack him.
Padte, according to the. submission, got wounded as a result of
the push. given to him by the appellant who, during this struggle.
· successfully snatched his knife. Emphasis was in this connection
laid on the fact that Padte and his companions were admittedly
six: in number and the appellant ,who was single-handed could
not have dared to run the risk of a clash with them by starting
the assault.
In the alternative it was suggested that assuming
the appellant had in his possession a knife of his own, as a matter
of fact he was first hit by Padte (P. W. 2) with his umbrella and
it was thereafter that the appellant, in order to defend himself
gave the knife blow.
Now this was not the plea taken by the
appellant in his statement under s. 342, Cr. P.C., but his counsel
contended that it was open to him to rely on the prosecution
evidence itself for substantiating this defence.
For this purpose
he relied on the evidence of Padte where he admitted that he had
tried to push back the appellant with his umbrella· after receiving
from him the stab wound.
Padte, it was argued, had rightly
admitted use of umbrella by him, but had suppressed the truth.
Instead of admitting the initial assault by him he had shifted the
use of umbrella to a time after· the receipt of injury by him sug-
.gesting thereby that it was used in self-defence
Stress was in
this connection laid on the fact that a broken. umbrella was found
by the investigating officers at the place of occurrence.
From
this circumstance support was sought for the suggestion that
Padtc must have hit the appellant with the umbrella with considerable force and that could only be done before he was injured.
Faced with six hostile men, use of knife by the appellant after
having been severely hit was, according to the counsel, a lawful
and legitimate exercise of his right of self-defence.
It is true that an accused person can, without calling defence
evidence in support of the plea: of self-defence, rely on the evidence
led by the prosecution and the material on the record for showing
that he had acted in self-defence. In such cases the real question
which the court is called upon to decide is whether on proper
appraisal of the evidence and the relevant material on the record
it can be said that the accused has been proved to .be guilty beyond
reasonable doubt.
For the court cannot justifiably ignore the
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RAJNIKANT v. MAHARASHTRA (Dua, J.)
535
material which establishes the right of self-defence merely because
the accused has for some reason or the other omitted to take sw;h
plea.
On going through the evidence and the material on the
record we are, however, unable to hold that the injuries in question had been inflicted on the prosecution witnesses
by
the
appellant while acting in self;defence. The injuries on the appellant's person were found, on examination by Dr. V. B. Nair,
Casualty Medical Officer in Charitable Nair Hospital on June 22,.
1966 at about 5 p.m. to be a contused lacerated wound over the
right scapular region i" x 1-" skin . deep and two abrasions, (a
skin abrasioo on the right ring finger and a linear abrasion over
the left elbow). The injury over the right scapular region indicates that it was caused to the appellant by S0'7leone hitting him
t'rdm behind and if that be so, then as suggested by the trial court
it seems more probable that in the melee following the free u1e
of knife by the appellant, someone hit him with the umbrella.
when he was trying to escape after giving the knife injuries to the
P.Ws.
It could not be the result of a push as stated by Padte.
There being no clear evidence on the point the Coun has to g0>
by probabilities. On this view we are unable to sustain the appellant's suggestion that he was first assaulted with umbrella. The·
other submission that the appellant, when threatened by Padte
with knife, tried to snatch it and during the course of this struggle
Padte may have accidentally been wounded in his .abdomen when
pushed by the appellant, has merely to be stated to be rejected_
The story not only sounds unrealistic but we are also unable te>
find on the record any rational basis for its acceptance.
The
nature of the stab wo11nd in the abdomen as described by Dr ..
Yijendra J. Shankar (P.W. 11) also seems to negative this suggestion.
The wound has penetrated into the abdominal cavity
and intestinal loops were visible and were coming out. Keeping
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in view the nature of the scuffie it could not be accidental. The·
abrasions on the appellant's finger relied upon by the appellant's
counsel in support of this theory is equally unhelpful.
In
a
'trugglc for snatching an open knife from another person's hostile
hands one would expect more serious injuries than mere abra-
'ions. The pica on the right of private defence must, therefore,
he repelled.
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It was then contended that the statements of the three witnesses
1 P.Ws. 4. 5 and 6) made in the committing court from which
they had resiled at the trial, should not have been acted upon by
the trial court in support of the prosecution version and P.W. 8
the only witness who did not resile from the statement in ·the committing court is a highly interested witness and, therefore,
his
evidence should not be implicitly accepted, said
the · counsel.
Nimba!kar (P.W. 3) who was produced at the trial without having
been examined in the committing court was also declared hostile
536
SUPREME COURT REPORTS
[1971] 2 S.C.R.
and was permitted to be cross-examined by the prosecutor. His.
evidence, according to the appellant's counsel, is no better and,
therefore, does not add strength to the prosecution case.
This
Court must, therefote, hold that the evidence on the record is
not trustworthy and it does not establish the appellant's
guilt
beyond reasonable doubt. We are not impressed by this submis-
~ion. The statements of the three witnesses jn the committing
·court from· which they resiled at the trial and which were duly
brought on the record of the trial court under s. 288, Cr. P.C.
·constitute substantive evidence and if the court is satisfied that
those statements were true whereas those made in the trial court
were -untrue then the earlier statements can safely be relied upon
to sustain the conviction.
In this case a mere reading of the
statements at the trial demonstrates their unconvincing nature and
it seems clear that there was some ulterior motive for the witnesses
to resile from the earlier statements which appear to have a ring
of truth about them.
We are, therefore, satisfied that the trial
court was right in convicting the appellant for offences under ss.
326 and 324, I.P.C.
On the question of sentence, however, we. feel that in view
of the somewhat dubious nature of the transaction which led to
the occurrence and the fact that the appellant had felt somewhat
annoyed at the.. repeated visits of P.Ws. to his house where unpleasant scenes were created in the presence of his mother the
.sentence imposed is somewhat severe. In our opinion ~ sentence
of two years' rigorous imprisonment would meet the ends of
justice. This Court normally does not interfere with the quantum
of sentence on appeal under Article 136, but in the present case,
as the High Court had, in our opinion, erroneously dismissed the
appeal summarily without giving reasons, we have chosen on a
·consideration of all the relevant circumstances to go into the ques-
·tion ourselves.
The appellant will surrender to his bail bond to serve out the
remaining sentence.
R.K.P.S.
Appeal dismissed.
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