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PETITIONER: STATE OF WEST BENGAL

       Vs.

RESPONDENT: MIR MOHAMMAD OMAR & ORS.

DATE OF JUDGMENT:       29/08/2000

BENCH: R.P.Sethi, K.T.Thomas

JUDGMENT:

     J  U  D G M E N T THOMAS, J.  A young  businessman  ofCalcutta  was  abducted  and  ki lled.  The      kingpin  of  the abductors  and  some of his henchmen were later  nabbed  and were tried for the offences.  The trial court convicted them under  Section 364 read with Section 34 of the Indian  Penal Code,  but  not  for  murder, and  sentenced  them  each  to rigorous imprisonment for 10 years.  A Division Bench of the Calcutta  High  Court rejected the State appeal against  the acquittal  for  murder and reduced the sentence to  a  short term  imprisonment  restricting it to the period  which  the convicted  persons had already undergone.  The State of West Bengal  as well as the convicted persons filed these appeals against  the  said decision of the Calcutta High Court,  the former  mainly  challenging the acquittal for murder  charge and  the  latter  challenging the  very  conviction  entered against them.

     Narration  of material facts of this case, in a  brief manner,  is  necessary  before considering  the  contentions raised.   The  victim  of the offence was one  Mahesh  Kumar Aggarwal  (’Mahesh’  for  short).  He was doing  some  small business  at  Bow Bazar area (Calcutta).  He was a  bachelor aged  29  and he was residing with his sister Anushila  Devi (PW-9)  in an apartment situated on the Westen Street  which was  re-christened  as  Banbuk   Gali.   First  accused  Mir Mohammad  @ Omar and 7th accused Sajid Ali were friends  and associates  in many activities indulged in at Bow Bazar area and the other accused were all the henchmen of Omar.

     Sajid  Ali (7th accused) wanted Mahesh to part with  a sum  of Rs.  50,000/-, almost as a ransom, for allowing  him to  deal  with his business unobstructed.  But the  deceased did  not capitulate to the demand and such refusal led to  a dig  between the two.  It seems Mahesh scored an upper  hand in  the  dig.  The above episode happened about  10-12  days before the death of Mahesh.

     The  night  of 4.11.1984 became horrendously  eventful for  Mahesh.  The events started with the gate-crashing made by  some assailants led by A-7 Sajid Ali, into the apartment of  Anushila  Devi (PW-9) in search of her  brother  Mahesh. Having  failed  to  see him there the  assailants  left  the apartment  after hurling threatening words at the housewife. About  an  hour later, Mahesh reached the apartment and  was told  by his sister of what happened.  Mahesh got frightened and  left  the house lest the assailants might come back  to that place.

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     By  about 11.00 P.M.  Mahesh reached the residence  of his  friend Abdul Aziz (PW-4) and took asylum therein.   But hardly  an hour passed he heard the sound of knocking at the door  and  when it was opened they saw one fruit-seller  (by name  Moin) standing at the doorstep for conveying a message that  A-1  Omar was waiting outside to see Mahesh.  When  he stepped  outside  he  saw  A-1 Omar who then  asked  him  to accompany  him.  But Mahesh refused to do so.  Then A-1 Omar forcibly  took him to a rickshaw to be taken away from  that site,  but  Mahesh managed to escape therefrom and ran  away towards Giri Babu Lane.

     Mahesh  reached  the place where PW-5 (Mohd.   Sayeed) was  residing  on Giri Babu Lane and sought asylum  therein. He narrated to PW-5 all what had happened till then.  He was allowed to sleep in that room, and concealed himself beneath the Chowki of that room.

     The  time was about 2.30 A.M.  when there was knocking at  the  door of PW-5’s room.  He opened the door and  found A-1  and  other accused standing just outside.  Four of  the accused  sneaked  into the room and made a prowl for  Mahesh and  traced  him out in that snoop.  The victim was  dragged out  of  the room.  A-1 yelled at the victim:  "You  escaped earlier.  Now let me see how you would escape again."

     Hearing  the commotion some of the neighbours woke  up from  sleep.   PW-6  (Mohd.   Idris) went out  to  see  what happened  and then saw some of the assailants (including the 7th  accused in this case) forcibly dragging Mahesh  towards the  Central  Avenue.  In the course of such towing A-1  was showering  lathi blows on Mahesh saying "I will beat you and kill you like a pig".  A-7 was heard saying, "As you did not give  the  money  which  we asked for we  would  finish  you today."  They took Mahesh away from the sight and ken of the residents  of  that area.  Thereafter, Mahesh was  not  seen alive by his kith and kin or his friends.

     On  the  same  night Mohd.  Sayeed (PW5) went  to  Bow Bazar  Police  Station and lodged a complaint regarding  the abduction  of Mahesh.  An FIR was registered on the strength of  the  said complaint.  On the next morning PW-9  Anushila Devi  (sister of Mahesh) told her nephew Pawan  Kumar(PW-29) about  the abduction of Mahesh.  Sometime later, Pawan Kumar learned  that  his  uncle  Mahesh was  admitted  in  Islamia Hospital.   So he rushed to that hospital and made inquiries and  came across the mangled body of his uncle lying in  the hospital with his head tonsured.

     PW-3  (Dr.  Debabrata Chaudhary) a Reader in  Forensic Medicine  conducted post-mortem examination on the dead body of  Mahesh  and  expressed  his   opinion  that  Mahesh  was murdered.   Subsequently,  all the accused were arrested  at different  times.   Some  articles  were  recovered  on  the strength of the statements elicited from the accused.  After conclusion  of  the  investigation  final  report  was  laid against  the  seven  accused.  The case as against  the  7th accused Sajid Ali was split up due to some reasons and hence the trial proceeded as against the remaining accused.

     There is abundant evidence for showing that Mahesh was abducted  by  the accused on the night in question.   It  is unnecessary  to  dwell  upon  that aspect  in  this  appeal, particularly  since the trial court and the High Court  have

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held  that issue in unison and since no serious attempt  was made  before  us  for  disrupting that  finding.   Sri  P.S. Misra,  learned  Senior Counsel contended that  there  would only  be a case of abduction simplicitor, even assuming that the  above position stands unassailable, but such  abduction by  itself  is not punishable by any provision of the  Penal Code.   We are not inclined to consider the said  contention in  an  academic perspective now, for, prosecution  in  this case  has put forward a case of abduction for the purpose of committing murder.  It was that case which was found against the  accused  by  the  trial court  which  finding  remained undisrupted by the High Court.

     Abduction  takes  place when a person is compelled  by force  (or such person is induced by any deceitful means) to go  from any place.  In this case Mahesh was dragged away by the  accused  from two places, first at Chittaranjan  Avenue and  when  he  escaped from the grip of  the  abductors  and perched  himself in a hide out selected by him at Giri  Babu Lane, from there also he was hauled out.

     Section  364 IPC says, whoever abducts any person  "in order  that such person may be murdered or disposed of as to be  put in danger of being murdered" he commits the  offence punishable  under the Section.  So the important task of the prosecution  was to demonstrate that abduction of Mahesh was for  murdering him.  Even if the murder did not take  place, the offence would be complete if the abduction was completed with  the said objective.  Conversely, if there was no  such objective  when the abduction was perpetrated, but later the abductors  murdered the victim, Section 364 IPC would not be attracted,  though  in  such a case the court  may  have  to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed.

     If  the  words  attributed  to the  abductors  can  be believed  we  have no doubt that the abduction was done  for the  purpose  of finishing him off.  Knowing  this  position well, Sri P.S.  Misra, learned Senior Counsel made a frontal criticism on the aforesaid evidence and contended that it is easy for interested witnesses to put such words in the mouth of  the  accused in order to aggravate the dimension of  the offence.   No doubt, witnesses can do so.  But the  question here is whether the aforesaid version of those witnesses was a  concoction to embroil the abductors into the cobweb of  a serious  offence  like Section 364 IPC.  The reliability  of that  part  of  the evidence can be  tested  from  different angles.

     First  is, even in the FIR PW-5 had quoted those words as  spoken  to by A-1.  It must be noted that when  FIR  was given  PW-5  had  no reason to believe that Mahesh  was  not alive.  If Mahesh had come back alive it is doubtful whether police  would have seriously followed up the FIR.  Next  is, the  temper  which the assailants exhibited in the house  of the  deceased’s sister (when she was the sole inmate present therein),  is  broadly indicative of the truculence  of  the intruders  that they went there with some definite  purpose. Mahesh  was once caught by them on that night itself by PW-4 and  then he was badly handled by them.  If their  intention was only to inflict some blows on the victim they would have stopped  with what they did to him at that stage.  But  when Mahesh  struggled and extricated himself from their clutches and escaped to another place at Giri Babu Lane these accused did  not stop and they persisted in prowling for their  prey

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and  succeeded  in tracing him out from that different  area and  hauled  him  out violently.  Such  repeated  chase  for Mahesh could, in all probabilities, be for his blood.  Thus, all  the broad features of this case eloquently support  the version  of  the  witnesses  to   conclude  that  the  words attributed to the accused were really uttered by them.

     For  the  aforesaid reasons, we have no difficulty  to conclude  that  all the accused abducted Mahesh in order  to murder him.

     Now  we  have  to  consider the  more  serious  aspect whether  Mahesh  was  murdered by the  abductors.   On  this aspect  Sri  P.S.  Misra led his most vocal contention  that the  identity of the corpus delicti has not been established in  this  case.  In other words, the contention is that  the prosecution  failed to establish that the dead body on which PW-30 (Dr.  Debabrata Choudhury) conducted the autopsy could not have been that of Mahesh.

     Learned    counsel     highlighted      two    seeming inconsistencies in the evidence to bolster up his contention on  the above score.  First is that PW-8 (Dr.  Adhikari) who saw  the  dead body first estimated the age as  40,  whereas Mahesh  was  only  29  according to his own  kith  and  kin. Second is that Dr.  Adhikari had noted that the penis of the dead body had undergone "religious circumcision".

     The  argument  advanced  by Sri P.S.   Misra,  learned senior  counsel on the above material appeared, at the first blush,  formidable.   But  on  a closer  scrutiny  the  said contention turned out to be very feeble.  It must be pointed out  that  the doctor who conducted post-mortem  examination (PW-30  Dr.  Debabrata Choudhury) did not find any  evidence of  such  circumcision on the dead body.  That doctor  is  a specialist in Forensic Medicine and was a senior person.  On the  other hand, PW-28 (Dr.  Adhikari) was only a  stripling in  the  profession  who had just completed  his  internship after  his graduation.  He said in his evidence that when he examined  the  patient he found "the glands  penis  exposed; foreskin  was rolled back;  thus it appeared to be a case of early  circumcision".  We do not think that such a  slipshod observation    regarding   such    a    vitally    important identification  mark  can be taken as a  seriously  observed feature,  particularly when PW-30, a senior doctor, did  not notice any such thing.  Similarly, the age estimated by this novice  medical practitioner without conducting any  medical tests  in that regard is hardly sufficient to conclude  that the  dead body was that of a person aged 40.  Even otherwise the  approximation  of the age made by looking at  the  dead body  is not enough to offset the age spoken to by the  kith and kin of the deceased.

     On  the other side, there is overwhelming evidence  to show  that  the autopsy conducted on the dead body by  PW-30 was  that of Mahesh.  We find little scope even to doubt the possibility of some other dead body being mistakenly treated as  that  of the deceased while conducting the post-  mortem examination.   PW-9  (Anushila Devi) sister of Mahesh,  said that  she saw the dead body of Mahesh before it was cremated and  she had absolutely no doubt that it was her  brother’s. PW-29  (Pawan  Kumar  Agarwal) a nephew of  Mahesh  went  to Islamia Hospital and it was he who first identified the dead body of his uncle.  PW-4 (Abdul Aziz), PW-5 (Mohd.  Sayeed), PW.6  (Mohd.   Idris) and PW-11 (Mohd.  Afjal) saw the  same

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dead  body and they had no doubt at all that it was that  of Mahesh.

     The  post-mortem report made by PW-30 (Dr.   Debabrata Choudhury)  shows that the victim was murdered.  He  noticed as  many  as  45 injuries on the dead  body  which  included fracture of 5 ribs (2 to 6 ) on he left side towards sternal end,  fracture  of  some of he fingers and  extravasaion  of blood  on  he night side of occipital region and also on  he situs of the rib fractures.  The remaining injuries included a  few lacerated wounds, contustions and aberrations.  There was  just  one  minor incised wound on he left  pinna.   The right  lung was congested.  The doctor opined that death  of that  deceased  had  resulted  from  multiple  injuries  and injuries of vital organs and I was homicidal in naure.

     The trial court made a fallacious conclusion regarding the  death  of the deceased on the premise that  the  public prosecutor  did not elicit from the doctor as to whether the injuries were sufficient in the ordinary course of nature to cause  death.  The Sessions Judge concluded thus on the said issue:   "There being no evidence on record to show that the injuries were sufficient in the ordinary course of nature to cause  death, it cannot be said that the injuries noticed by the autopsy surgeon (PW-30) were responsible for causing the death of the deceased Mahesh."

     No  doubt it would have been of advantage to the court if  the  public prosecutor had put the said question to  the doctor  when he was examined.  But mere omission to put that question  is  not  enough  for the court to  reach  a  wrong conclusion.   Though  not an expert as PW-30,  the  Sessions Judge  himself  would  have  been  an  experienced  judicial officer.   Looking  at  the injuries he himself  could  have deduced  whether  those  injuries  were  sufficient  in  the ordinary  course of nature to cause death.  No sensible  man with  some  idea regarding the features of  homicidal  cases would  come  to  a different conclusion  from  the  injuries indicated  above,  the details of which have been stated  by the doctor (PW-30) in his evidence.

     We  have  no doubt that homicidal death of Mahesh  had happened on the same night of his abduction.  Now we have to deal  with another crucial issue.  Having found that  Mahesh was  abducted  by the accused in order to murder him and  he was  in  fact really murdered very soon thereafter  can  the accused  escape from the penal consequences of such  murder. The  trial court has stated on the said crucial issue  thus: "From  the discussions made by me in the earlier part of the judgement  it  would  appear that the  accused  persons  had forcibly taken away the deceased Mahesh from the premises at 29/2/2A,  Giri  Babu  Lane, Calcutta.  There is no  iota  of evidence to show that the deceased Mahesh was in the custody of  the  accused persons along from 2.30 A.M.  to 5.45  A.M. of  5.11.86.....................There  is no evidence  worth the  name  to show that the accused persons had carried  the dead  body of Mahesh to Islamia Hospital and then  abandoned it at the Emergency Department."

     The  High  Court unfortunately did not deal with  this aspect  at  all.  Learned judges made scathing criticism  on the  flaws  incurred  in the investigation and  without  any reference to the evidence confirmed the conviction passed by the trial court.

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     Before  we consider the said crucial aspect we have to point  out  another  important   circumstance.   Sri  K.T.S. Tulsi,  learned counsel who argued for the State highlighted the said circumstance that when A-1 Omar was interrogated by the  Investigating Officer(PW-34) on 12.11.1986 he told  the officer  that  "I  have kept it (a full sleeve  bush  shirt) underneath  the  mattress  on the ground in my  club  room". Pursuant  to  the  said statement the  shirt  was  recovered therefrom.   It is marked as Ext.XV in this case.  It is now in  a torn condition.  The statement attributed to A.1 Omar, and extracted above would fall within the purview of Section 27  of the Evidence Act.  If it is believable, it would show that  the said shirt was concealed by the said accused.   We do  not  find any reason to disbelieve the evidence  of  the investigating officer regarding recovery of Ext.XV - shirt.

     There  are  two significant features relating  to  the said  shirt.  One is that PW-5 said that he supplied a shirt to  Mahesh  on  the  same night when he  found  his  wearing apparels  shabby  and torn.  PW-5 said that when Mahesh  was abducted  from  his room he was wearing that shirt and  PW-5 identified  Ext.XV  as the said bush shirt.  No  explanation whatsoever  was  offered by A-1 Omar regarding Ext.XV  (bush shirt)  except  a  bare  denial regarding it.   We  have  no difficulty  to believe the evidence of PW-34 on that  score. It  goes  a long way in focussing at the first accused  Omar for the murder of Mahesh.

     The  other feature has been highlighted by Sri  K.T.S. Tulsi  that  the  bush shirt was  subjected  to  serological examination  at the Forensic Sciences Laboratory and it  was found  stained  with human blood (vide Ext.40 series).   Sri Harsh  Kumar Puri, learned counsel for the appellants in one of  the appeals filed by the convicted persons, pointed  out in  his written submissions that the aforesaid  circumstance (FSL  test  result on the shirt) was not put to the  accused when  they  were  questioned  by the  Sessions  Judge  under Section  313  of  the Code of Criminal Procedure.   When  we scrutinised  the records we noticed that no question was put to  the accused on that score.  Consequently we are disabled from  using  that  feature on the shirt  as  a  circumstance against the accused.

     Even  barring  that, the following circumstances  have now  been  well  set against the accused:   (1)  Mahesh  was abducted around 2.30 A.M.  by the abductors proclaiming that he would be finished off.  (2) The abductors took Mahesh out of  the sight of the witnesses.  He was then wearing a  bush shirt  Ext.XV.   (3) Within a couple of hours  the  murdered body  of  Mahesh  was found in Islamia  Hospital  without  a shirt.   (4) The bush shirt which Mahesh was wearing at  the time of abduction was concealed by A-1 Omar.

     The  abductors  have not given any explanation  as  to what  happened to Mahesh after he was abducted by them.  But the  learned  Sessions Judge after referring to the  law  on circumstantial  evidence  concluded  thus:   "On  a  careful analysis and appreciation of the evidence I think that there is  a missing link in the chain of events after the deceased was  last  seen  together with the accused persons  and  the discovery  of  the  dead  body of the  deceased  at  Islamia Hospital.  Therefore, the conclusion seems irresistible that the prosecution has failed to establish the charge of murder against the accused persons beyond any reasonable doubt."

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     The  pristine rule that the burden of proof is on  the prosecution  to prove the guilt of the accused should not be taken  as  a  fossilised  doctrine as though  it  admits  no process   of  intelligent  reasoning.    The   doctrine   of presumption  is  not alien to the above rule, nor  would  it impair  the  temper of the rule.  On the other hand, if  the traditional  rule  relating  to  burden   of  proof  of  the prosecution  is  allowed to be wrapped in pedantic  coverage the  offenders  in  serious  offences  would  be  the  major beneficiaries, and the society would be the casualty.

     In   this   case,  when   prosecution   succeeded   in establishing the afore narrated circumstances, the court has to presume the existence of certain facts.  Presumption is a course  recognised  by the law for the court to rely  on  in conditions  such  as  this.   Presumption   of  fact  is  an inference as to the existence of one fact from the existence of  some other facts, unless the truth of such inference  is disproved.  Presumption of fact is a rule in law of evidence that  a fact otherwise doubtful may be inferred from certain other  proved facts.  When inferring the existence of a fact from  other  set  of  proved facts, the  court  exercises  a process  of reasoning and reach a logical conclusion as  the most  probable  position.   The above principle  has  gained legislative  recognition  in  India   when  Section  114  is incorporated  in the Evidence Act.  It empowers the court to presume  the existence of any fact which it thinks likely to have  happened.  In that process court shall have regard  to the  common course of natural events, human conduct etc.  in relation to the facts of the case.

     When  it  is proved to the satisfaction of  the  court that  Mahesh  was abducted by the accused and they took  him out  of  that area, the accused alone knew what happened  to him until he was with them.  If he was found murdered within a  short  time after the abduction the  permitted  reasoning process  would enable the court to draw the presumption that the  accused  have  murdered  him.  Such  inference  can  be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody.

     During  arguments we put a question to learned  senior counsel   for  the  respondents   based  on  a  hypothetical illustration.  If a boy is kidnapped from the lawful custody of  his  guardian  in  the  sight  of  his  people  and  the kidnappers  disappeared  with  the prey, what would  be  the normal  inference  if  the mangled dead body of the  boy  is recovered  within  a  couple of hours from  elsewhere.   The query  was  made  whether upon proof of the above  facts  an inference  could  be  drawn that the kidnappers  would  have killed  the  boy.  Learned senior counsel  finally  conceded that in such a case the inference is reasonably certain that the  boy  was killed by the kidnappers unless  they  explain otherwise.

     In  this  context we may profitably utilise the  legal principle  embodied in Section 106 of the Evidence Act which reads  as follows:  "When any fact is especially within  the knowledge  of any person, the burden of proving that fact is upon him."

     The section is not intended to relieve the prosecution of  its  burden  to prove the guilt of  the  accused  beyond reasonable  doubt.   But  the Section would apply  to  cases

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where  the  prosecution has succeeded in proving facts  from which  a  reasonable  inference can be drawn  regarding  the existence  of  certain  other facts, unless the  accused  by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

     Vivian  Bose, J., had observed that Section 106 of the Evidence  Act is designed to meet certain exceptional  cases in  which  it  would be impossible for  the  prosecution  to establish  certain  facts which are particularly within  the knowledge  of  the accused.  In Shambu Nath Mehra  vs.   The State  of Ajmer (1956 SCR 199) the learned Judge has  stated the  legal principle thus:  "This lays down the general rule that  in  a  criminal  case the burden of proof  is  on  the prosecution  and  section 106 is certainly not  intended  to relieve it of that duty.  On the contrary, it is designed to meet  certain  exceptional  cases  in   which  it  would  be impossible,  or at any rate disproportionately difficult for the  prosecution  to establish facts which are  ’especially’ within the knowledge of the accused and which he could prove without  difficulty or inconvenience.  The word ’especially’ stresses  that.   It means facts that are  pre-eminently  or exceptionally within his knowledge."

     In  the  present  case, the  facts  which  prosecution proved  including  the proclaimed intention of the  accused, when considered in the light of the proximity of time within which  the victim sustained fatal injuries and the proximity of the place within which the dead body was found are enough to  draw an inference that victim’s death was caused by  the same  abductors.  If any deviation from the aforesaid course would  have been factually correct only the abductors  would know  about  it,  because  such deviation  would  have  been especially within their knowledge.  As they refused to state such facts the inference would stand undisturbed.

     The  Division  Bench  of  the High  Court  instead  of dealing  with  the  circumstances  of the  case  and  issues involved   made  only  some   general  comments  and   after castigating  the  investigating officers in severe  language reached  the  final  part  of  its  judgment  upholding  the conviction under Section 364/34 IPC and reduced the sentence to  the period which the convict had already undergone.  The Division Bench used unkind remarks against the investigating officer  saying  "investigation of the case was  perfunctory and suffered from serious lacuna and irregularity".  Learned Judges  of the Division Bench did not make any reference  to any  particular  omission  or lacuna in  the  investigation. Castigation  of  investigation unfortunately seems to  be  a regular  practice  when the trial courts acquit  accused  in criminal  cases.  In our perception it is almost  impossible to  come across a single case wherein the investigation  was conducted  completely flawless or absolutely foolproof.  The function  of  the  criminal courts should not be  wasted  in picking  out  the lapses in investigation and by  expressing unsavoury  criticism  against  investigating  officers.   If offenders  are acquitted only on account of flaws or defects in  investigation, the cause of criminal justice becomes the victim.   Effort  should  be  made by  courts  to  see  that criminal  justice  is  salvaged   despite  such  defects  in investigation.    Courts  should  bear  in  mind  the   time constraints  of  the police officers in the present  system, the  ill-equipped machinery they have to cope with, and  the traditional  apathy  of respectable persons to come  forward

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for  giving  evidence in criminal cases which are  realities the  police  force  have to confront with  while  conducting investigation in almost every case.  Before an investigating officer  is  imputed  with castigating  remarks  the  courts should not overlook the fact that usually such an officer is not  heard in respect of such remarks made against them.  In our  view the court need make such deprecatory remarks  only when  it  is absolutely necessary in a particular case,  and that  too  by keeping in mind the broad realities  indicated above.

     In  the present case we have not come across any  such serious  flaw  in the investigation which had  affected  the case   or  which  would  have   impaired  the  core  of  the prosecution  case  justifying or warranting  the  pejorative remarks made by the Division Bench of the High Court against the  investigating  officers.  In the result, we  allow  the appeal  filed by the State and dismiss the appeals filed  by the  convicted persons.  While maintaining the conviction of the  offence  under  Section 364/34 IPC  and  restoring  the sentence  passed  by the trial court on the accused we  also convict  the  six  appellants/accused of the  offence  under Section  302  read  with  Section 34 of  IPC  and  impose  a sentence  of  imprisonment  for life on each of  them.   The sentences under all counts will run concurrently.  We direct the  Sessions Judge, Calcutta City, to take immediate  steps for  putting  the  convicted  persons   back  in  jail   for undergoing  the remaining portions of the sentences  imposed by this judgement.