CASE NO.: Appeal (crl.) 1141 of 2001 PETITIONER: Kunju Muhammed @ Khumani & Anr. RESPONDENT: State of Kerala DATE OF JUDGMENT: 11/08/2003 BENCH: N. Santosh Hegde & B.P. Singh. JUDGMENT:
JUDGMENT
(With Crl. A. No…967…../2003
@ S.L.P.(Crl.)No.6744/2001)
SANTOSH HEGDE, J.
The two appellants herein who were accused Nos.1 and 2
before the IIIrd Additional Sessions Judge, Ernakulam, are in
appeal before us in this appeal filed under Section 379 of the
Code of Criminal Procedure. The appeal is filed against the
judgment of the High Court of Kerala at Ernakulam made in
Criminal Appeal No.41 of 1995. In the said judgment, the High
Court reversed the judgment of the learned Sessions Judge and
convicted the appellants herein of offences punishable under
Sections 302, 323 and 324 read with 34 IPC and awarded a
sentence of imprisonment for life as also on the charge for an
offence under Section 302. A sentence of RI for one year for
offences punishable under sections 323 and 324 read with
Section 34 IPC was awarded in addition to the sentence already
imposed under Section 302 IPC. The co-accused namely
Ummer son of Kochunni who stood convicted under Sections
323 and 324 read with 34 and sentenced to undergo RI for one
year by the impugned judgment of the High Court has
preferred the connected SLP which will be taken up for
consideration separately.
The case of the prosecution as presented to the trial court
is that in an altercation that took place between
Kunjumuhammed PW-3, Kochunni PW-4, Khadarkunju PW-5
on one side and Moosakutty A-2, Ummer A-3, Ali A-4,
Kochunni A-5, Ashraf A-6 and Subair A-7 on the other, on
3.11.1991 at about 8.15 a.m. on the North-Eastern portion of
Korathukudy House No.III/209 of Vengola Panchayat, the
abovesaid accused persons assaulted Kochunni PW-4 and
Kunjumuhammed PW-3. At that time the deceased Majeed
came to the place of the incident and resisted the said accused
from assaulting PWs.3 and 4 at which time Ummer A-3 beat
Majeed with an iron rod MO-1 which blow was warded off by
Majeed who caught hold of the iron rod and a scuffle ensued
between Majeed and Ummer A-3. At this point of time,
Kunjumohammed A-1 came to the scene with a fishing sword
MO-2 and stabbed on the back of Majeed with the same.
Majeed having received the said stab injury then allegedly
turned towards A-1 and caught hold of the sword which was
pulled back by A-1 who again stabbed Majeed on the left side
of his chest. Seeing the assault on Majeed it is stated
Muhammed PW-2 rushed to the scene but he was intercepted
and stabbed by A-1 on the right side of the lower part of his
belly. PW-2 then caught hold of the sword but he was assaulted
by Ummer A-3 on the head with the iron rod. At that point of
time the prosecution alleges accused 2 and 4 to 7 dragged
Majeed to the residential compouned of the 3rd accused and put
Majeed in a supine position and A-4 exhorted others by
shouting “cut this pig’s throat”. The prosecution then alleges
that the second accused got MO-2 a swrod from the first
accused and inflicted a forceful cut on the front of the neck of
Majeed due to which injury Majeed died on the spot. It is the
further case of the prosecution that on the same day at about
8.45 a.m., Sacaria PW-1 went to the Perumbavoor Police
Station which is about 2 to 3 kms. from the place of incident
and lodged a complaint as per Ex. F-1. The Assistant Sub-
Inspector of Police, PW-18 attached to the said Police Station
recorded Ex. P-1 and registered Crime No.408/91, he then sent
the file to the Circle Inspector of Police, PW-19, who initiated
the investigation of the case and proceeded to the scene of
incident at about 9 a.m. and prepared inquest Panchnama as per
Ex. P-6 which was attested by PW-10 Azeez. The I.O. (PW-19)
also seized MO-4, a lungi found on the body of Majeed, a
thorthu (MO-3) found near the body of Majeed and also MO-5
slippers. Thereafter he sent the body to Kottayam Medical
College hospital for postmortem examination. He then
conducted the Mahazar of the scene of the incident. On search
of the house of the 3rd accused he found and seized Mos.1 and 2
as per Ex. P-8 which was attested by Mohammad PW-12.
The postmortem of the body of the deceased was
conducted at about 1.30 p.m. on 3.11.1991 by PW-13 the doctor
who was then the Asstt. Professor of Forensic Medicine,
Kottayam Medical College and who issued Ex. P-12, the
postmortem certificate noting that the injuries suffered by the
deceased were anti-mortem. On 3.11.1991 the doctor, PW-14 at
the Medical Trust Hospital, Ernakulam examined Muhammad
PW-2 and issued Ex. P-13 on 4.11.1991. PW-17, the doctor at
the Taluk Headquarters Hospital, Perumbavoor examined
Kochunni, PWs. 3 and 4 and issued Exs. P-16 and P-20, the
medical certificates. This witness also identified the
handwriting of CW-28, Dr. T.K. Ibrahim who had issued the
certificate Ex. P-22 and who was not available to be examined.
After completing the investigation, accused were
committed for trial for an offence punishable under Section 302
and other offences before the Sessions Court, Ernakulam which
trial then stood transferred to the III Additional Sessions Court
at North Perumbavoor. At the trial since the 7th accused Subair
was found to be a minor below the age of 16, his case was
separated from the rest of the accused and he was directed to
appear before the Juvenile Court. Thus his case stood
transferred to the Juvenile Court while the trial against A-1 to
A-6 stood transferred ultimately to the III Additional Sessions
Court, Ernakulam. The said learned Sessions Judge as per his
judgment dated 29.10.1994 came to the conclusion that though
the prosecution has established that the deceased Majeed died
due to the injuries suffered by him, further came to the
conclusion that the prosecution has failed to establish beyond
all reasonable doubt that it is these accused persons who had
caused injuries to Majeed leading to his death. It also came to
the conclusion that from the prosecution evidence it was not
possible to come to the conclusion that the incident in question
had taken place at the time and place mentioned by it and on the
contrary, it was more probable as stated in the defence version
that Majeed must have sustained injuries at the Tapioca
cultivation at about 4.30 or 5 a.m. i.e. much prior to the alleged
time put forth by the prosecution i.e. 8.15 a.m. It also came to
the conclusion, since admittedly the prosecution witnesses had
enmity with the accused persons and the prosecution having
failed to produce any independent witnesses though such
witnesses were present at the time and the place when the
incident had taken place, that it was not safe to rely upon the
interested testimony of those witnesses produced by the
prosecution. The trial court also noticed the fact that even
though the prosecution had projected PW-1 as an eye witness to
the incident in question, he had not supported the prosecution
case and had actually stated in his evidence before the court that
he was called to the Police Station on the midnight of 3rd and 4th
November, 1991 and was asked to sign a prepared statement
which indicated the fact that the investigating agency did not
know who the accused persons were till that time. Though this
was the evidence of an hostile witness, the trial court found
corroboration for this part of the evidence of PW-1 from the
fact that even according to the prosecution the special report
sent from the Police Station Perumbavoor to the Magistrate,
Perumbavoor reached the said court only at about 4.30 p.m. on
4.11.1991 inspite of the fact that the Police Station and the
court are located in the same town. It also noticed the fact that
the prosecution had failed to explain the clay and mud found on
the feet of the deceased which could not have been there on his
feet if actually the incident had taken place as projected by the
prosecution said court opined that this fact also indicated that
incident must have taken place in the Tapioca garden. The trial
court also relied upon certain omissions in the evidence of
PWs.2 to 5 in regard to dragging of the body of Majeed and in
the narration of incident that took place after he was taken to
the compound of A-3’s building. Thus the trial court came to
the conclusion that there is a strong and genuine doubt in regard
to veracity of the prosecution case and benefit of that doubt
should enure to the advantage of the accused and it is based on
that conclusion, it acquitted the accused persons of all the
charges levelled against them.
It is against the said judgment of acquittal that the State
preferred an appeal to the High Court of Kerala at Ernakulam as
stated above, and the High Court as per the impugned judgment
on a total re-appreciation of the evidence on record disagreed
with the trial court in regard to the involvement of 3 appellants
herein and came to the conclusion that the prosecution has
clearly established its case against these accused persons
namely A-1 to A-3 therefore found appellants
Kunjumohammed A-1 and Moosakutty A-2 guilty of offences
punishable under section 302 and sentenced them to undergo RI
for life. It also convicted A-1 to A-3 of offences punishable
under sections 323 and 324 read with section 34 for having
caused injuries to PW-2 hence convicted them to undergo RI
for a period of 1 year since A-1 and A-2 were already convicted
for offence under section 302 for life imprisonment, it made the
sentences imposed by it for offences under sections 323, 324
read with 34 to run concurrently with the sentence imposed
under section 302, while in regard to A-3 it made it the
substantive sentence. It is against this judgment as stated above
that the appellants are now before us, challenging their
conviction and sentence as awarded to them by the High Court.
Mr. Sushil Kumar, learned senior counsel appearing in
Crl.A. No. 1141/2001 for the appellants very strenuously
contended that the High Court was in error in reversing the
judgment of the trial court merely on the basis that another view
was possible on the same set of facts. He contended that though
the High Court while entertaining an appeal under Section
378(3) of the Code of Criminal Procedure acts as an appellate
court on facts also still it ought not to have reversed a finding of
fact arrived at by the trial court which is otherwise justly
arrived at. He submitted that merely because another view
could have been possible, the High Court ought not to have
substituted its opinion in place of the one arrived at by the trial
court, that too without coming to the finding that the
conclusions arrived at by the trial court were either perverse or
were such which could not have been arrived at by any
reasonable person on the facts of the case. He further submitted
that the prosecution has failed to establish its case beyond all
reasonable doubt especially in regard to the time and place of
incident. According to learned counsel, the High Court took a
very casual view of the serious discrepancy found in the
prosecution evidence while accepting the same to base a
conviction.
Mr. Ramesh Babu, learned counsel for the State per
contra argued that the finding of the learned Sessions Judge was
contrary to the evidence on record therefore the High Court was
justified in interfering with such finding of the trial court. He
submitted there is absolutely no reason why PWs.-2 and 3
should be disbelieved when they themselves had suffered
injuries. He submitted that the arguments of the learned counsel
for the appellants in regard to the time and place of incident
have no support from the material on record, hence, ought to be
rejected.
A perusal of the judgments of the two courts below
shows that the trial court noticed 2 major discrepancies in the
case of the prosecution. It found that the prosecution case that
the incident in question had occurred at about 8.15 a.m. on
3.11.1991 in the front lane on the North-Eastern portion of
Korathukudy House NO.III/209 of Vengola Panchayat is highly
doubtful and the defence version that the incident in question
must have occurred around 4 or 5 a.m. on 3.11.1991 in a
Kappapadam (Tapioca garden) is more probable. The High
Court of course did not agree with this conclusion of the trial
court and preferred to rely on the evidence of the alleged eye
witnesses to accept the prosecution case as to the time and place
of incident. Since this question goes to the very root of the
prosecution case we would prefer to discuss this issue at this
stage itself.
From the judgment of the trial court, we notice that in
regard to the time of incident, the trial court relied upon the
evidence of PW-1 who lodged the complaint Ex. P-1. He in his
examination in chief itself has stated that he signed Ex. P-1 on
the midnight of 3.11.1991. This witness was treated as hostile
and cross examined by the prosecution. If this was the sole
piece of evidence on which the trial court relied upon to come
to the conclusion that the incident in question might not have
taken place at 8.15 a.m. on 3.11.1991 we would have definitely
disagreed with the trial court but then the trial court also relies
on the fact that Ex. P-1 did not reach the Magistrate Court at
least till the evening of 4.11.1991 as could be seen from the
endorsement in the FIR. This omission on the part of the
prosecution to explain why the FIR did not reach the
jurisdictional Magistrate till the evening of 4.11.1991 even
though the incident in question had taken place at 8.15 a.m. and
reported to the police at 8.45 a.m. on 3.11.1991 itself casts very
serious doubt which lends support to the evidence of PW-1 that
the complaint was got ready only on the midnight of
3/4.11.1991. It should be borne in mind that the distance
between the Magistrate’s court and the Police Station being in
the same town was very close. Then again it is to be noticed
from the evidence of PW-10 who is admittedly a very close
friend of deceased Majeed that on 3.11.1991 at about 7 a.m.
when he was in his house, he had come to know that somebody
had killed Majeed which was told to him by a friend and he
reached the Police Station by 7.30 a.m. which was again a time
much earlier than the time of incident as projected by the
prosecution. This also supports defence version that the incident
in question could not have taken place at 8.15 a.m. We further
notice that the doctor PW-13 who conducted the postmortem
examination had noted that the rigor mortis had formed and was
found all over the dead body at the time when he conducted the
postmortem. He in his evidence had stated that in his opinion
the rigor mortis sets in within about 4 to 7 hours of the death. If
we apply the yardstick as spoken to by PW-13 of the starting of
rigor mortis to the facts of this case then we notice that in the
instant case the death must have occurred prior to 8 a.m.,
because if the rigor mortis starts within 4 to 7 hours of death
then it would taken some time to reach all parts of body and in
the instant case, rigor mortis was found in the entire body of the
deceased, therefore, to reach this stage if we take 4 hours as the
starting point, it would have taken some more time to reach
different parts of the body, therefore, we think it is reasonable
to take the upper limit of rigor mortis reaching the entire body
as 7 hours and if we work backwards then we notice that the
death in question must have occurred before 6.30 a.m. on
3.11.1991 which actually fits into the other facts noticed by us
hereinabove while discussing the time of death.
We also notice from the evidence of PW-10 and others
that when they touched the body of the deceased they found the
body was cold and frozen, (may be a terminology used by the
locals for the body having become stiff). Therefore, we think
the trial court was justified in its finding that death had occurred
much earlier to the time mentioned by the prosecution, and the
High Court was in error in coming to a contra conclusion. Thus
relying on (a) the statement of PW-1 that the complaint was
signed on the midnight of 3.11.1991; (b) the FIR reaching the
jurisdictional Magistrate more than 36 hours after the incident
in question though the court is situated in the same town; (c) the
evidence of the doctor as to the presence of rigor mortis on the
body of the deceased indicating death must have occurred much
earlier than 8.15 to 8.30 a.m. on 3.11.1991; (d) recording in the
inquest report Ex. P-6 that the body of the deceased when
examined was found to be cold and frozen; we find that the
conclusions arrived at by the learned trial Judge that the
incident in question did not take place as indicated by the
prosecution is a probable one.
Next point to be considered is in regard to place of
incident. We are aware of the fact that the witnesses who have
supported the prosecution have stated that the incident in
question started in the lane on the north-eastern portion of
House No.III/209 of Vengola Panchayat. Thereafter the
deceased was dragged by A-4 to A-7 to the compound of
building No.III/206 where the deceased was put in a supine
position and at the behest of A-4, A-2 cut the neck of deceased
with MO-2. The trial court disbelieved this part of the
prosecution case also by noticing that even according to eye
witnesses the injury to the neck of the deceased was such that
there was profuse bleeding but none of the eye witnesses who
supported the prosecution case in their evidence before the
court noticed any blood on the ground where Majeed was
attacked for the second time which according to the trial court
was a glaring omission in the evidence of the eye witnesses
giving room for doubt as to the place of the incident. The trial
court also noticed the fact that in the inquest report there was no
reference to the blood found at the place where the deceased’s
neck was cut. In the said report it was merely mentioned that
the blood had clotted in the wound on the throat. The trial court
observed that these are indications of the fact that the attack on
deceased could not have taken place at the place suggested by
the prosecution. This doubt as to the place of incident gets
further compounded by the fact that PW-13 the doctor who
conducted the post mortem examination in his evidence has
stated that when he examined the body of the deceased he
found his legs covered with mud and clay. Nowhere in the
prosecution case it has come in evidence that the place where
deceased was attacked consisted of either soft mud or clay
similar to what was found on the foot of the deceased. On the
contrary, the trial court which we presume had the knowledge
of the area in question had observed that such mud or clay is
normally found in a Tapioca field or garden, hence, justly came
to the conclusion that the attack on the deceased must have
taken place as pleaded by A-2 in his 313 Cr.P.C. statement.
This aspect of the defence case also finds some support in the
evidence of PW-2 who when taken for the medical examination
had told the doctor PW-14 when asked about the history of the
case that the incident in question had taken place in a
Kappapadam (Tapioca garden). If really the incident had taken
place as suggested by the prosecution, we fail to understand
how PW-2 could have thought of Tapioca garden even by
inadvertence. The explanation given by this witness that he was
either in an unconscious state or in a disoriented state has been
belied by the certificate given by PW-14, the doctor, who in his
certificate had in specific terms recorded that the deceased was
conscious and “was in no way disoriented”. Thus the following
factors noticed by the trial court i.e. (a) omission on the part of
the prosecution to establish there were blood stains on the
ground where the deceased’s neck was cut either through the
evidence of eye witnesses or through the inquest report; (b)
presence of clay/mud on the feet of the deceased which is
similar to the one found in Tapioca garden; (c) the statement
made by PW-2 to the doctor PW-14 when he was examined that
the incident in question took place at Kappapadam are in our
view sufficient in the absence of any independent evidence
supporting the prosecution to create a serious doubt in the
prosecution case as to the place of incident also. Therefore, we
do not agree with the High Court when it rejected the above
discrepancies found in the prosecution case as either being
irrelevant or very minor in nature.
Be that as it may, the trial court has also considered the
eye witness evidence produced by the prosecution bearing in
mind of course the close relationship between the parties as also
the longstanding enmity between the parties. It is in this
background while discussing the evidence of PW-2 the trial
court came to the conclusion that the discrepancies in the
evidence of this witness as to place of incident as stated to the
doctor PW-14 and in his evidence before the court itself were
sufficient to reject his evidence. However, the High Court
proceeded on the basis that the evidence of PW-2 in regard to
the incident in question was not challenged by the defence,
hence, the trial court was not justified in rejecting his evidence.
It took PW-2’s evidence in examination-in-chief as the gospel
truth and proceeded to accept the same. In regard to the
contradicting version given by PW-2 as to the place of the
incident to the doctor, PW-14, the High Court brushed aside
same by observing : “Merely because the doctor recorded that
the incident took place in Kappapadam near the house on
3.11.1991 at 8.45 AM it is not a ground to discard the effect of
the evidence of PW2 …” From the above, we notice that the
High Court proceeded on the basis that the doctor had
committed a mistake in noting down the place of the incident,
without noticing the fact that PW-2 in fact, in his evidence, did
admit the contradiction but explained it away by stating that he
was disoriented at the time of medical examination, which fact
was found to be false on the basis of medical report. Thus, in
our opinion, the High Court missed a very important
contradiction in the evidence of PW-2 which certainly makes
his evidence doubtful.
We notice the learned Sessions Judge rejected the
evidence of PW-3 primarily on the ground that he was not able
to state who are the accused persons who lifted the body of
Majeed from the place of first incident to the place of second
incident. The explanation given by this witness for this
omission that he became unconscious at that point of time was
rejected by the trial court as a mere excuse which on facts and
circumstances of the case, in our opinion, is a good and valid
reason to reject the evidence of PW-3 who when it came to the
crucial part of the attack, did not support the prosecution case.
The High Court did not notice this aspect of the evidence of
PW-3 but proceeded to accept his evidence by relying upon his
examination in chief only.
PW-4’s evidence was rejected by the trial court because
he was not able to remember how A-2 inflicted the injury on
the deceased in the second place of the incident. It is seen as per
prosecution case the deceased after he was dragged to the
second place of incident, was placed in a supine position and A-
2 cut his neck with MO-2 causing the fatal injury. If really PW-
4 had witnessed this incident as observed by the trial court, we
also think it would have been very difficult for him to have
forgotten this part of the prosecution case. It is not his case that
he did not witness this part of the incident but he stated before
the court that he did not remember how the attack took place. In
our opinion, the evidence of this witness is not worthy of any
credence, hence, has to be rejected.
PW-5 as noticed earlier is the person who initiated the
original fight. Learned Sessions Judge noticed that while
answering the questions, he found that this witness would
answer only the leading questions and to certain inconvenient
questions he would say that he did not remember that part of
the incident in question. The trial court also noticed that he was
unable to say who actually had given the fatal blow to the
deceased nor could he say who were the persons who dragged
the deceased from the first place of incident to the second place
of incident. It is on this basis the trial court rejected his
evidence. The High Court in its turn while considering the
evidence of this witness observed : “The learned Sessions Judge
also forgot the fact that the witness was related to the accused
as well as to the deceased and a reading of his evidence as a
whole would clearly show that he was trying to help the
accused while giving his testimony. We are of the view that
merely because the witness adopted such an attitude, his clear
evidence corroborating the version of others regarding the
infliction of injury on the back and on the chest should not be
discarded.”
We are at pains to appreciate this reasoning of the High
Court. This witness has not been treated hostile by the
prosecution, and even then his evidence helps the defence. We
think the benefit of such evidence should go to the accused and
not to the prosecution. Therefore, the High Court ought not to
have placed any credence on the evidence of such unreliable
witness.
PW-6’s evidence was rejected by the Sessions Court on
the ground that the same was inconsistent with the versions
given by PWs.2 and 4. He also admitted that he did not know
who had dragged Majeed from the first place of incident to the
second place of incident. The Sessions Court had noted that like
PW-5 this witness was unable to say who actually dragged
deceased and it was only when the Additional Public Prosecutor
repeatedly asked these questions, he stated that accused 2, 4 and
6 as the persons who dragged the deceased. Even this answer,
as noticed above was inconsistent with the version given by
PWs.2 and 4. Despite this the High Court preferred to accept
his evidence in the examination in chief which on facts of the
case is unsustainable.
Evidence of PW-7 was rejected by the Sessions Court
holding that his version of the attack and dragging and attack on
Majeed, on the property of the 3rd accused was entirely different
from the version given by PWs. 2 and 4 to 7. The trial court had
observed that his evidence is inconsistent, improbable and
unbelievable. We have perused the evidence and are in
agreement with the learned Sessions Judge and we think the
High Court was wrong in accepting a part of his evidence
inspite of noticing the discrepancy in his evidence regarding the
dragging of Majeed.
Thus, we find most of the reasons given by the High
Court for rejecting the conclusions of the learned Sessions
Judge are unacceptable. At this juncture, we would like to bear
in mind the law laid down by this Court in regard to
reappreciation of evidence by the High Court in appeal against
acquittals. This Court in Dhanna etc. v. State of M.P. [1996
(10) SCC 79] had laid down that though the High Court has full
power to review the evidence and to arrive at its own
independent conclusion whether the appeal is against
conviction or acquittal. While doing so it ought to bear in mind
: first, that there is a general presumption in favour of the
innocence of the person accused in criminal cases and that
presumption is only strengthened by the acquittal. Secondly, it
should bear in mind that every accused is entitled to the benefit
of reasonable doubt regarding his guilt and when the trial court
acquitted him, he would retain that benefit in the appellate court
also. Thus, the appellate court in appeals against acquittals has
to proceed more cautiously and only if there is absolute
assurance of the guilt of the accused, upon the evidence on
record, that the order of acquittal is liable to be interfered with
or disturbed.
In Shailendra Pratap & Anr. v. State of U.P. (2003 (1)
SCC 761), this Court held : “It is well settled that the appellate
court would not be justified in interfering with the order of
acquittal unless the same is found to be perverse. In the present
case, the High Court has committed an error in interfering with
the order of acquittal of the appellants recorded by the trial
court as the same did not suffer from the vice of perversity.”
The above principles have been consistently followed by this
Court in a large number of cases. If we apply the said principle
to the facts of this case, we notice that the High Court in the
instant case has not come to the conclusion that the finding of
the Sessions Court was in any manner perverse or one that
cannot be arrived at by a reasonable person. Therefore, in our
opinion, assuming another view was possible to be taken on
the material on record, the High Court ought not to have
substituted its view in place of that of the Sessions Court, and
reverse an order of acquittal on such substituted view of its
own. At any rate, on the facts of this case, we have come to the
conclusion that the view taken by the learned Sessions Judge
was the only possible view, hence, the High Court ought not to
have interfered with the same. From the material on record, the
defence has been able to establish that the prosecution case in
regard to the time and place of incident is highly doubtful even
the evidence of the eye witnesses apart from being interested
was full of contradictions and improbabilities based on which
no conviction could have been recorded against the appellants.
For the reasons stated above, this appeal succeeds and the
judgment and conviction awarded to the appellants by the High
Court is set aside. The appellants, if in custody, shall be
released forthwith, if not required in any other case.
Crl. Appeal No……/2003 @ SLP (Crl.) No.6744 of 2001 :
Leave granted.
Following the judgment delivered by us in Criminal
Appeal No.1141/2001, we allow this appeal, set aside the
judgment and the conviction awarded by the High Court. If the
appellant is in custody, he shall be released forthwith, if not
required in any other case.
