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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. Noâ\200¦967â\200¦../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

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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

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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

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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

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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

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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

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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

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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

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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 Noâ\200¦â\200¦/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.