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PETITIONER: LAXMAN AND OTHERS

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT28/11/1973

BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH

CITATION:  1974 AIR  303            1974 SCC  (1) 309  CITATOR INFO :  D          1985 SC1156  (49,53)

ACT: Evidence  Act, Section 145-Important omissions by a  witness in  the previous statements regarding participation  of  the accused  in  the crime--whether  contradictions  within  the meaning of the section-Law laid down in Tahsildar Singh  and another  v.  State  of  U.  P. A. I.  R.  1959  S.  C.  1012 explained-Impact of omissions on the probative value of  the witnesses’ evidence.

HEADNOTE: In the trial u/s 302 read with s. 34 I. P. C., one Sopan was convicted  on  the  evidence of one  Sudam,  the  only  eye- witness.   Sudam  admitted  in  his  cross-examination  that neither  before  the  Executive Magistrate  nor  before  the Committing  Magistrate, he stated that Sopan had beaten  the deceased with Rumana and that he bad stated the fact for the first time before the trial Magistrate.  Sudam also admitted that Sopan did nothing and was simply standing there.  Sudam also  stated  that he could watch the incident  for  a  very short time as he himself was threatened by the accused  and, therefore, ran away.  The F.I.R. and dying declarations also did  not mention the part played by Sopan in  the  incident. The trial Court acquitted all the accused but the High Court convicted  them.   As  regards  the  omissions  in   Sudam’s evidence,  the High Court held, following Tahsildar’s  case, that  the  omissions  do not amount  to  contradictions  and cannot  be  proved  to show that  the  witness  was.  making improvements.   The  High  Court,  therefore,  ignored   the omissions. Allowing Sopan’s appeal (but not of the other two accused), HELD . (i) We do not think that s. 145 of the Evidence  Act, on  the very reasoning of Tahsildar Singh’s case,  cited  by the High Court, was intended to exclude from, evidence  what is relevant and admitted, and, therefore, a proved  omission from   having   its  due  effect  in   the   assessment   of probabilities.   S.  145  of Evidence Act  applies  only  to ’contradictions.’   If  there  are  omissions  in   Previous statements  which do not amount to contradictions but  throw some  doubt  on  the  veracity  of  what  was  omitted,  the uncertainty or doubt may be capable of removal by  questions

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in  reexamination.   There  were no such  questions  put  to Sudam.   Neither proof nor use of such omissions,  which  do not  amount  to contradictions is barred by s.  145  of  the Evidence  Act.  The error the High Court had  committed  was that  it  entirely  excluded very  important,  relevant  and material omissions, from duly proved previous statements  of the  witness Sudam from consideration altogether  as  though they were quite irrelevant and in-consequential. [51 OF] It  is  not possible to lay down a general rule as  to  what effect a particular omission from previous statement  should have  on  the probative value of what was so  omitted  by  a witness.    The  effect  will depend upon  the  totality  of proved  facts and circumstances in which the omission  might have  taken  place.   It will often  be  determined  by  the importance  of  what  was  omitted.   The  Law  of  Evidence contains  nothing more than s. 3 and s. 114 of the  Evidence Act  to  indicate and illustrate the standards  and  methods employed in assessing the evidence. [510H] (ii)The  High Court ought to have examined the evidence  of Sudam,  the only eye-witness, in the light of  the  material omissions and found out how much Sudam actually saw with his own eyes and how much of what he said could be attributed to his  conjecture, surmise or imagination.  Sopan is  entitled to benefit of the doubt, which emerges on an examination  of the  whole  evidence in the case about the precise  acts  of participation by him. 1513D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 122 of 1970. Appeal  by special leave from the judgment and  order  dated 24/;  25th  September  1968  of the  Bombay  High  Court  in Criminal Appeal 1731 of 1965. 506 M.   C. Bhandare and P. H. Parekh, for the appellants. H.   R. Khanna and S. P. Nayar for the respondent. The Judgment of the Court wag delivered by BEG, J.-The three appellants Laxman (aged 30 at the time  of trial).  Sopan (aged 18 at the time of trial), and  Sakharam (aged  40 years at the time of trial), residents of  village Walana were acquitted of charges under section 302 read with section 34 I.P.C. by the learned Sessions Judge of Parbhani. The  trial court had declared the testimony of the only  eye witness,  Sudam  Sakharam,  P.S.  17,  to  be  unworthy   of credence.   Neither  the several dying declarations  of  the deceased  Narain Rao, in which he gave out the names of  the three  appellants  as  his assailants nor  other  facts  and circumstances,  such  as the recovery on a pointing  out  by Sopan  of  the  "Rumna"  said to  have  been  used  for  the murderous  attack,  were  held  by the  trial  Court  to  be sufficient  to corroborate the version of the  eye  witness. On an appeal against the acquittal, a Division Bench of  the High  Court of Bombay had elaborately discussed each one  of the  reasons  given  by  the  learned  sessions  judge   for discarding  the  testimony of Sudam, corroborated  by  other facts  and  circumstances, and found the  logic  behind  the trial  court’s reasoning to be unsound.  The High Court  had also  criticised  the learned Session’s  Judge  in  treating certain  omissions from the previous statements of Sudam  as damaging   contradictions   without   complying   with   the provisions of section 145 of Evidence Act.  It had relied on Tahsildar Singh and anr. v. State of U.P.,(1) to support its views  on the requirements of s. 145 of Evidence  Act.   The

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High  Court set aside the acquittal of the three  appellants and convicted them under section 302 I. P.C. read with s. 34 IPC and sentenced them to imprisonment. for life. in  the appeal by special leave, now before us, the  learned counsel  for the appellants has criticised the  approach  of the  High  Court,  its  findings  on  individual  items   of evidence,  and  its view that the  omissions  from  previous statements of the alleged eye witness Sudam could not affect his credibility.  After having examined the judgments of the trial  court  and  the High Court  and  relevant  pieces  of evidence in the case, and listening to the arguments of  the learned counsel for the appellants, who said all that  could be urged to support this appeal, and learned counsel for the respondent  State,  we think that the  appreciation  of  the evidence by the High Court was undoubtedly far superior  and that  interference  with  the  trial  Court’s  judgment   of acquittal  was justified.  Nevertheless, we find that  there is  an  aspect  of the case relating to  Sopan,  who  was  a student  aged  about  18 years at the time  of  the  alleged offence, which has not been given due importance by the High Court  so  as to determine whether this  appellant  was  en- titled,  as  we  think he is, to the  benefit  of  doubt  as regards  his alleged participation in the actual  commission of an offence. (1)  AIR 1959 S.C. 1012. 507 The account of the occurrence given by Sudam, P.W. 17 may be summarised as follows:-- The  witness, who knew, Narainrao, Sarpanch of  Walana,  had been   engaged  by  the  Sarpanch  to  assist  him  in   the supervising  the  construction of a road under  a  contract. The Sarpanch got a commission and the witness got Rs. 3  per day.   He left Walana with the Sarpanch at 8 . 00  A.M.  for village  Mannas Pimpri to pay the wages of the labourers  on 30th  April, 1966, which was a Saturday.  Wages used  to  be paid on Saturdays.  Laxman, appellant, met and followed them on  the way saying that he too had to go to  Mannas  Pimpri. As  the  party reached Mahboob’s field,  Laxman  lifted  and tucked in his Dhoti like a wrestler.  Then, Laxman  suddenly caught  hold of Narayan’s right leg, and, putting  his  left hand  on  his  back, felled Narainrao  on  the  ground  face downwards.   Narainrao’s hands were under his body.   Laxman caught and then sat on Narainrao’s neck.  Narainrao raised a hue and cry. When the witness tried to restrain Laxman and caught his hand, hewas warned that he would be killed if he interfered.  Just then, thewitness    saw    Sopan    and Sakharam,  brother  and  wards  them.   Sakharam  carried  a ’Ramna’.   The  witness let go the hand  of  Laxman.   While Laxman  sat  on the neck of Narainrao and pressed  it  down, Sakharam  rained  blows  with the ’Ramna’  on  the  back  of Narainrao.  Sopan stood watching nearby- After Sakharam  had finished  beating Narainrao, Sopan took the same  Ramna  and started  beating  him while Narain shouted :  ’I  am  dead’. Finally, Laxman took a big stone and threw it on the neck of Narainrao.   As  Laxman  saw the  witness  watching  from  a distance,  while escaping he said : "Catch this Mang".   The witness ran towards Walana.  He met, Bhika Kotwal of  Walana on the way and informed him that Narainrao was being  beaten by the’ three accused.  At Walana, he informed Abhiman,  the brother  of  Narainrao,  that the accused  were  beating  up Narainrao.   He  then went to his sister’s house  and  drank some  water.   He  was  about to go back  to  the  scene  of occurrence when Laxman and Sopan came there.  Laxman said  : ’Take care Mang I If you testify in favour of the  Sarpanch, you  would  be  murdered’.  The witness  was,  however,  not

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deterred  from going back to the scene of  occurrence  where other villagers had. collected. Attempts  were  made by cross-examination to  discredit  the testimony of this witness.  Firstly, it was suggested to him that two chits (Ex. 31 and 32), showing that the witness was demanding Rs. 30/to spoil the prosecution case, were sent by him.   But, as the High Court had rightly pointed  out,  the connection of this witness with writing on these chits could not be established.  The trial Court had obviously erred  in using  these chits to doubt the credibility of the  witness. Secondly, it was urged that this witness had denied his con- viction for an offence under s. 12 of the Gambling Act.  The learned  Sessions  Judge had, in our opinion,  attached  too much  importance  to this denial. , The High Court,  on  the other hand, had examined the certified copy of the  criminal case register (Ex. 42) filed to contradict the statement  of this witness denying a conviction and had 508 held that, although one Sudam Sakharam of Bahar Jahagir  was shown to be one of two accused persons mentioned in the copy filed, yet, the entries in the relevant columns did not show anything beyond a fine of Rs. 5/- on Laxman, the co-accused. The High Court also held that the identity of the particular Sudam Sakharam mentioned in this copy was not established as that of Sudam P.W. 17 and that there could be other  persons of  that  name  in the village.  The  High  Court  had  also adversely  commented on the fact that the copy was not of  a document kept in proper form.  It had been only signed by  a clerk.   No judgment and order of the Court was filed.   The High  Court  doubted  the  bona  fides  of  the  defence  in producing  what  it considered to be a  suspicious  copy  to contradict one of the statements of the witness.  Even if we do not question the bona fides of the defence in finding it, the technical defect of want of proof of the exact  identity of  Sudam  mentioned in the copy was  certainly  there.   We agree with the High Court that the trial court had made  too much  out of this alleged contradiction in the testimony  of Sudam.   Thirdly, it was sought to be shown that  Sudam  had improved the account of the incident given by him at earlier stages  by introducing, in his statement at the trial,  what he  had  not said earlier.  The High Court held  that  these omissions were not "contradictions".  Alternatively, it held that,  even  if  an  omission here  could  be  viewed  as  a ’contradiction,  it  could  not  be  used  at  all   without complying with s. 145 of the Evidence Act. In Tahsildar’s case (supra) the majority view of this  Court by Subba Rao, J., was (at p. 1023) :-               "Contradict according to the Oxford Dictionary               meant to affirm to the contrary.  Section  145               of  the Evidence Act indicates the  manner  in               which  contradiction  is  brought  out.    The               cross-examining counsel shall put the part  or               parts  of  the  statement  which  affirms  the               contrary to what is stated in evidence.   This               indicates  that there is something in  writing               which  can  be set against  another  statement               made in evidence.  If the statement before the               police officer in the sense we have  indicated               and  the statement in the evidence before  the               Court  are so inconsistent  or  irreconcilable               with  each other that both of them cannot  co-               exist, it may be said that one contradicts the               other.               It  is  broadly  contended  that  a  statement               includes all omissions which are material  and

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             are  such as a witness is expected to  say  in               the  normal course.  This  contention  ignores               the  intention of legislature expressed in  s.               162  of  the Code and the nature of  the  non-               evidentiary value of such a statement,  except               for  the  limited  purpose  of  contradiction.               Unrecorded  statement is completely  excluded.               But  recorded  one  is used  for  a  specified               purpose.   The record of a statement,  however               perfunctory,  is assumed to give a  sufficient               guarantee to the correctness of the  statement               made but if words not recorded are brought  in               by some fiction, the objection of the  section               would be defeated.               509               By  that process, if a part of a statement  is               recorded,  what was not stated could go in  on               the sly in the name of contradiction,  whereas               if the entire statement was riot recorded,  it               would  be excluded.  By doing so, we would  be               circumventing the section by ignoring the only               safeguard  imposed by the  legislature,  viz.,               that the statement should have been recorded".               In the case before us we find that no question               was  put  at  all  to  Sudam,  in  his  cross-               examination,  about  what  he  bad  stated  or               omitted  to  state to the  police  during  the               course of investigation.  Cross-examination of               the  witness  bad, however,  brought  out  two               material omissions from statements before  the               Executive Magistrate and the Committing Court.               The witness said :               "I  have  not  stated  before  the   Executive               Magistrate,  nor before the  committing  court               that  accused nos. 2 and 3 bad obstructed  me,               when  I took to my heels.  Sepan (accused  no.               2)  had  beaten Narainrao  with  Rumna,  after               taking the same from accused no. 3. I have not               stated therefore the Executive Magistrate that               accused no. 2 bad beaten Narainrao with Rumna.               I  have  not  stated  before  the   committing               Magistrate that the accused no. 2 (Sopan)  bad               beaten  Narainrao.  I have stated  before  the               Committing Magistrate that at the time of  the               incident,  accused no. 2, did nothing  and  he               was simply standing there".               The High Court itself observed :               "It is true that the witness had not made  any               statement  before  the  Committing  Magistrate               regarding the part played by accused no. 2  in               the  assault  on  Narainrao but  that  may  be               because he was not questioned on that point at               that  time.   The same can be said  about  the               statement before the Executive Magistrate."               It then went on to say               "It  cannot, however, be said that be bad  not               made  any  statement on the point  before  the               Police.  As we will presently point out, it is               not  possible to any that the witness had  not               made  any  statement on the point  before  the               Police, but, assuming for the present that  he               bad  not made any such statement, it would  be               only  an  omission presumably due to  his  not               being questioned on the point.  That cannot be               of any help to the defence to suggest that the

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             witness was making intelligent improvements as               assumed ’by the learned Judge.  The  omission,               if  at all it is there, is not such  as  would               amount to controdiction and cannot, therefore,               be proved to show that the witness was  making               improvements." In so far as the High Court was presuming, from the  failure of  the  defence  to cross-examine  the  witness  about  any assatement  before  the  police,  that  there  was  no  such omission in his statement before M602SupCI/74 510 the  police,  the High Court was assuming the  existence  of something which could not have been used by the  prosecution to corroborate its case even if it existed.  The High  Court had  then, proceeding on the assumption that there was  such an  omission  from the statement of the witness  before  the police, explained an assumed infirmity in it by holding that this   constituted  neither  a  contradiction  nor  was   it inexplicable  by  a failure to question the witness  on  the point  during the investigation as though it was no part  of the duty of the police to elicit or ascertain what part  was played by each accused in the occurrence before  prosecuting him. If  we were to assume that the witness had revealed  to  the police  the  part alleged by him at the trial to  have  been played by Sopan, it would make it all the more incumbent  on the prosecution to bring out this part when the witness  was making his statement in his examination-in-chief before  the Magistrates.  The statements before the magistrates could be used both to contradict and to corroborate.  The prosecution had  performed its duty in questioning the witness, when  he was  deposing at the trial, about the part played by  Sopan. It should not have gone to sleep at earlier stages and  then tried  to fill up the possible gaps in the evidence on  this part of the case at the trial.  If it does this, so that  an important prosecution witness appears to be introducing  new allegations which are vital for determining the liability of an accused, the new statements are bound to arouse suspicion and doubt. It  may  not be out of place to mention here that  the  11th Report  of the Criminal Law Revision Committee  in  England, has  recommended the abrogation of several artificial  rules of  evidence  which may result in the exclusion of  what  is logically  relevant (See : Criminal Law Review, June,  1973, p.  329).  So far as our law goes. we do not think  that  s. 145 of the Evidence Act, on the very reasoning of  Tahsildar Singh’s case (supra), cited by the High Court, was  intended to exclude from evidence what is relevant and admitted, and, therefore,  a proved omission from having its due effect  in the assessment of probabilities.  Section 145, Evidence  Act applies only to ’contradictions’. if there are omissions  in previous  statements which do not amount  to  contradictions but  throw some doubt on the veracity of what  was  omitted, the  uncertainty  or  doubt may be  capable  of  removal  by questions  in re-examination.  There were no such  questions put  to Sudam in the case before us.  Neither proof nor  use of such omissions, which do not amount to contradictions, is barred by Sec. 145.  Evidence Act. is not possible to lay down a general rule as to what effect a particular omission from a previous statement should  have on the probative value of what was so omitted by a  witness. The effect will depend upon the totality of proved facts and circumstances  in which the omission might have taken  place It  will often be determined by the importance of wtiat  was

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omitted.  Oar enacted law of evidence contains nothing  more than sections 3 and 114 of the Evidence Act to indicate  and illustrate  the standards and methods employed in  assessing the evidence.  The error the High Court had committed in 511 the  case  before  us was that  it  entirely  excluded  very important,  relevant,  and  material  omissions,  from  duty proved  previous  statements  of  the  witness  Sudam   from consideration   altogether   as  though  they   were   quite irrelevant and inconsequential. Quite  apart  from the error of the High Court  in  assuming that a material omission from a previous statement, even  if it is not to be treated strictly as a contradiction, must be ignored in evaluating the testimony of the only eye  witness on  so important a matter, for determining the liability  of Sopan, we think that what Sudam P.W. 17 had omitted to state before  the  Magistrates  ought  also  to  have  been   more critically  examined  and tested by the High  Court  in  the light  of  probabilities  and the natural  course  of  human conduct.    The   important   question   which   arose   for determination on facts and circumstances disclosed by  Sudam himself was :               How  much did Sudam actually see with his  own               eyes and how much of what he said could be not               unreasonably    attributed   to    conjecture,               surmise, or imagination on his part?               Before we discuss the evidence further, we may               observe that Professor Munsterberg, in a  book               called  "On the Witness Stand" (p. 51),  cited               by  Judge  Jerome Frank in his  "Law  and  the               Modern  Mind" (see : 1949 ed. p.  106),  gives               instances of experiments conducted by enacting               sudden  unexpected preplanned episodes  before               persons  who  were then asked to  write  down,               soon afterwards, what they had seen and heard.               The astounding result was :               "Words were put into the mouths of men who had               been silent spectators during the whole  short               episode; actions were attributed to the  chief               participants of which not the slightest  trace               existed;   and   essential   parts   of    the               tragicomedy  were completely  eliminated  from               the memory of a number of witnesses". Hence,  the Professor concluded : "We never know whether  we remember,   perceive,   or  imagine".    Witnesses   cannot, therefore,  be branded as liars in toto and their  testimony rejected  outright  even if parts of  their  statements  are demonstrably  incorrect or doubtful.  The astute  judge  can separate  the grains of acceptable truth from the  chaff  of exaggerations and improbabilities which cannot be safely  or prudently accepted and acted upon.  It is sound  commonsense to  refuse to apply mechanically, in assessing the worth  of necessarily  imperfect human testimony, the maxim :  "falsus in uno falsus in omnibus." Reverting  to the evidence in the case, we find  that  Sudam was,  as  is quite natural, in a hurry to get  back  to  the village because, apart from the fear of the accused  (Laxman had  actually threatened to kill him and the other  two  had also  been alleged by him to have attempted to  prevent  his escape),  he had to inform the relations of  Narainrao  soon about  what he had seen.  And, he deposed that he told  both Bhika  Kotwal and Abhiman (P.W. 2) when he met  them,.  that Narainrao  was  "being"  beaten, or,  in  other  words,  the beating had not come 512

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to  an  end when he ran away from the scene  of  occurrence. Moreover,  he  was quite far when Sopan is alleged  by  him, apparently  for the first time it the-trial, to  have  taken his turn to beat the deceased with the Rumna.  Even the last act attributed by him to Laxman who is said to have hurled a big  stone at the neck of Narainrao lying on the ground,  is not  corroborated by medical evidence, Moreover, it was  not possible for Sudam to have observed from a distance that the stone hurled by Laxman actually hit Narain on his neck.   He could have mistaken some act of Sopan, such as throwing away of the Rumna, for an assault with it claimed by him to  have been seen from a distance as he turned his head back to  see whilst  escaping.   We, therefore, conclude  that,  although Sudam  was  there to witness how the attack  began,  he  had probably  drawn upon his imagination to some extent to  give the details of how it ended. We  next turn to the several dying declarations put  forward to corroborate the statement of Sudam.  These show that  the three  appellants were present at the attack upon  Narainrao and  were  thought  by Narainrao  to  have  participated  in beating  him.   These dying declarations,  however,  do  not mention  the particular part assigned by Sudam to  Sopan  in his  deposition at the trial.  This is natural as  Narainrao was  not in a position to see the actual assailant after  he was  pinned down to the ground with his face  downwards  and Laxman  sitting on his "neck".  He could only guess who  was striking him on the back. The  first dying declaration, made to Mahboob, P.W. 10,  did not  impress the High Court.  The second was made to  Piraji P.W.  9,  the  third to Laxmanramji P.W. 2 and  the  4th  to Datarao  P.W.  3, the Sarpanch of Mannas Pimpri.   The  High Court  had  rightly  observed  that  the  last  three  dying declarations  made  to villagers, who had assembled  at  the scene of occurrence before Narainrao died, could not be held to be false as the medical evidence indicated that he  could remain  conscious for some time after the attack.  The  more important question for determination, therefore, was : "To what extent do the dying declarations corporate Sudam?" Neither the dying declarations nor the F.I.R. lodged at  the police station by Abhiman P.W. 12, the brother of Narainrao, on  30-4-1966.  at 12 30 p.m. disclose the parts  played  by each  of the three accused.  The report sent by  Abhiman  is actually signed by Sudam P.W. 17.  It is true that, at  that time, it was not known that Narainrao would die.  But,  both Sudam  and Abhiman knew that a very severe beating had  been given  to Narainrao.  We think that it is unlikely that,  if Sudam  had seen the details of the way in which the  beating of  Narainrao  ended, no details of it whatsoever  would  be given in the report sent by Abhiman to the police which  was signed by Sudam.  Thus, the proved omission of the last part of  Sudam’s  version  from the F.I.R. as well  as  from  his proved  previous  statements before the  Executive  and  the Committing Magistrates, combined with the unlikelihood  that he could either stay long enough at the scene to see how the beating ended or 513 would  be  able to see this well enough when he  turned  his head back while running away and his own admitted statements to  other  witnesses throw that part of the story  in  which Sopan appellant is said to have taken his turn in beating of Narainrao in the region of reasonable doubt. Sopan,  appellant,  a young man, may  have  accompanied  his elder  brother,  Laxman, and his cousin,  Sakharam,  out  of curiosity.   He may have watched the beating.   Sudam’s  own statement before the committing magistrate quoted above, was

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that  this  is all that Sopan did there, although  the  High Court thought fit to explain it away by believing that  this assertion was confined to the earlier stage of the  beating. According  to  the  High Court’s  finding,  Sopan  was  only standing  at least when Sakharam was giving the eating  with the ’Rumna’.  He must have accompanied his elder brother and cousin  back to the village.  Sopan may have even taken  and thrown  the ’Rumna’ or known where it was lying.   The  fact that he indicated the place from where it could be recovered would  not be sufficient to establish his  participation  in the incident beyond reasonable doubt.  Therefore, we are  of the  opinion  that  Sopan, appellant,  is  entitled  to  the benefit of the doubt which emerges on an examination of  the whole  evidence  in  the  case about  the  precise  acts  of participation by him.  As regards Laxman and Sakharam  there is  no room for doubt that they actually attacked  Narainrao deceased as stated by Sudam.  The manner in which  Narainrao was  said  to be beaten, corroborated by  medical  evidence, makes it impossible for the beating to have been given by  a single individual.  The participation of Laxman and  Saharam in  the  actual  commission of the  offence  is,  therefore, established  beyond  any  reasonable  doubt.   The   medical evidence  also  leaves no doubt that the  beating  was  such that,  in the ordinary course of nature, it would cause  the death of Narainrao. We,  therefore,  think that Laxman and  Sakharam  appellants have  been rightly convicted under section 302 read with  s. 34  I.P.C.  and sentenced to life imprisonment.   Hence,  we dismiss  the appeal of Laxman and Sakharam and affirm  their convictions  and  sentences.  We allow the appeal  of  Sopan appellant  and  set aside his conviction and  sentence.   We order  that Sopan be set at liberty forthwith unless  wanted in some other connection. S.B.W.               Appeal allowed in part. 514