1

REPORTABLE

                IN THE SUPREME COURT OF  INDIA

         CRIMINAL APPELLATE JURISDICTION

             CRIMINAL APPEAL NO. 2496  OF 2009

NANHAR & ORS. ..  APPELLANT(S)

vs.

STATE OF HARYANA ..  RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 2497 OF 2009

O R D E R

1. Appellant  five  in  number,  in  both  the  

appeals,  feeling  aggrieved  by  the  judgment  and  

order  of  conviction  dated  7/5/2008  passed  in  

Criminal Appeal No.919-DB/2006  by  Division Bench  

of High Court of Punjab and Haryana at Chandigarh,  

arising out of the judgment and order of conviction  

dated  24/11/2006  and  order  of  sentence  dated

2

25/11/2006 pronounced by Additional Sessions Judge,  

Bhiwani, convicting them for commission of offences  

under  Sections  302/149  of  the  IPC  and  awarding  

sentence to undergo RI for life,  together with  

fine of Rs.2,000/-, are before us challenging the  

same on variety of grounds.

2. It  may  be  mentioned  herein  that  initially  

charge-sheet was filed only against four accused  

namely Nanhar, Virender @ Binder, Rampat and Rajbir  

@ Meda under Sections 306/34 IPC.  The name of the  

fifth accused Umed Singh was added subsequently by  

the Trial Court on an application being filed by  

the prosecution under Section 319 of the Code of  

Criminal  Procedure  and  allowed  on  3.6.2004.  The  

order of committal makes it clear that the first  

four  appellants  were  charged  and  prosecuted  for  

commission of offence under Sections 306/34 IPC.  

Accordingly it was committed to Court of Sessions  

for  being  tried  for  the  aforesaid  offences.  

However,  on  5.10.2004  charge  was  framed  by  the  

learned  Trial  Judge  under  Sections  302/34  IPC.  

Even though Umed Singh was added subsequently as  

one of the accused but the charge was not altered

3

to one under Section 149 of the I.P.C.

3. Thumbnail sketch of the facts of the case is  

as under:

Kartar Singh elder brother of Vijay deceased  

had filed an application on 27/2/2004 before the  

Superintendent of Police Bhiwani, alleging therein  

that  he  is  resident  of  village  Malkosh  Tehsil  

Charkhi  Dadri,   District  Bhivani  and  has  been  

serving Armed forces for last 20 years.  He has a  

residential house of his own in Rewari Town wherein  

his  family  and  aged  mother  are  residing.  His  

younger brother Vijay, the deceased, was residing  

in Malkosh and was looking after the agricultural  

land owned by them.  One Bhajani wife of Roop Ram,  

of the same village was on visiting terms to the  

house of Vijay as he was having small flour mill in  

his house.  She used to come for grinding of wheat.  

In  the  course  of  time  she  developed  family  

relations with Vijay.  There was a rumour in the  

village that she had forced her own daughter-in-law  

Kamlesh, wife of Rampat, one of the accused herein,  

to have illicit relations with deceased Vijay.  In  

lieu whereof it was said that she had received a

4

sum of Rs. 1,000/- from Vijay.  It was also the  

case of the prosecution that Vijay and Kamlesh wife  

of Rampat - appellant No.3 were seen in the field  

by many villagers and they had a doubt about their  

relationship.  In  fact,  their  relationship  had  

become talk of the village.  Rampat, the accused,  

came  to  know  about  the  said  relationship.  

Therefore, he along with other co-accused Nanhar  

Virender and Rajbir decided to finish Vijay.  On  

coming to know about the motive of the accused,  

Vijay had left village Malkosh for some time.

4. It was further mentioned that aforesaid four  

accused  had  told  PW.11  Dalip,  uncle  of  deceased  

Vijay, about their intention. They wanted to take  

revenge with Vijay on account of his relationship  

with Kamlesh, wife of Rampat. They further informed  

that  this  illicit  relationship  will  not  be  

tolerated by them and therefore they are planning  

to kill Vijay.

5. On 24/2/2004 PW.7 Sudesh, cousin of deceased  

Vijay informed PW.9 Kartar Singh, on telephone that  

Vijay has been murdered and his dead body was lying

5

in his field.  It was further informed that some  

poisonous substance was administered to Vijay by  

accused Nanhar, Virender and Rajvir and Rampat. He  

was asked to reach Malkosh from Rewari immediately.  

On the same night,  Kartar Singh reached village  

Malkosh and found his brother dead.  On enquiries  

being made by him it was found from the villagers  

that he has been done away with by administering  

poisonous substance to him by aforesaid persons.  

This fact stood fortified from a small note said to  

be Vijay's dying declaration, written on the inside  

paper of the match box, recovered from the pocket  

of his pants.  In the same, name of Meda Panch was  

also mentioned that they had mixed sulphas in the  

drink  which  was  administered  to  him  and  it  is  

likely to take away his life.

6. The said two pages written complaint dated  

27.2.2004  was  submitted  by  Kartar  Singh  to  

Superintendent  of  Police,  Bhiwani.  A  note  was  

endorsed by the Superintendent of Police to Deputy  

Superintendent of Police to look into the matter  

and do the needful.  DSP sent it to SHO of Police  

Station  Bhond  Kalan,  who  was  directed  to

6

investigate the matter, in accordance with law. The  

said written complaint was treated as an F.I.R. and  

formal FIR came to be registered on 6/3/2004, that  

is to say almost after 11 days from the date of  

occurrence of the incident.   

7. It  is  pertinent  to  mention  here  that  on  

24.2.2004, PW.11 Dalip while proceeding to lodge  

the report had met ASI Raj Kumar (reported to be  

dead) at the bus stop of Malkosh and had orally  

informed him about the incident. His statement to  

the police was entered into Daily Diary (Rojnamcha)  

by Sub-Inspector Raj Kumar at the Police Station.   

8. On such report being received by him, ASI  

Raj Kumar reached the spot and prepared the inquest  

report Ext.PN.  In column No.12, dealing with in  

what manner or by what weapon of instrument such  

marks or injuries appeared to have been inflicted,  

he  recorded:  “appears  to  have  taken  poisonous  

substance”.   

9. In the same inquest report, ASI Raj Kumar  

recorded detailed version of Dalip as was given to

7

him.  According to Dalip, his nephew Vijay either  

took poisonous substance himself on account of the  

fact  that  villagers  had  come  to  know  about  his  

illicit relationship with Kamlesh, wife of Rampat  

or someone had forcibly administered it to him. He  

further got it recorded  that he had left his other  

nephew PW.7 Sudesh at the place of occurrence for  

the safety of dead body and had come to the Police  

Station. But since ASI Raj Kumar met him at the bus  

stop of Malkosh, he is getting the said statement  

recorded.   

10. ASI Raj Kumar recorded further in the said  

inquest report that after getting this information  

he went to the place of occurrence and found dead  

body of Vijay.  The same was lying in a straight  

posture, mouth and eyes were found to be little  

open.  He  was  wearing  terricot  pants  along  with  

ready  made  shirt  but  no  external  injuries  were  

found on the body of the deceased. Height of the  

deceased was about 5' 9”. Mouth was full of froth,  

a steel glass containing poisonous substance, and  

two bottles containing water and little liquor were  

found. However, Raj Kumar was not able to come to

8

definite conclusion with regard to cause of death.  

Therefore, he thought it fit to wait till post-  

mortem report was received by him.

11. It is pertinent to mention here that neither  

in  the  statement  of  Dalip  nor  in  the  Inquest  

Report,  there  was  any  mention  with  regard  to  

recovery of hand written dying declaration said to  

have been ascribed by deceased, from his pants.

12. Recovery memo was prepared by Raj Kumar, ASI  

in presence of two witnesses namely Dalip (PW.11)  

and Sudesh (PW.7). In the same it is said following  

articles  were  seized  from  the  spot:-  one  hand  

written  note  authored  by  deceased  Vijay,  on  the  

cover of the match box, two separate bottles, one  

containing  water  and  another  containing  little  

liquor,  one  steel  glass  with  name  of  Rampat  

ingraved.  Earth containing white powder said to be  

poisonous substance was also collected.  They all  

were  sealed  in  different  parcels  and  taken  into  

police custody.

9

13. Translated copy of Ext.PG, dying declaration  

has been filed. The exact Hindi version written by  

him in the slip reads as thus:

““Daru ke sath Sulphas pila rahe hai. Marenge.”

  (underlining by us)

The said Inquest Report was prepared at the spot.  

In the site plan prepared there, neither recovery  

of pocket telephone directory nor recovery of pen  

was  made.  The  statements  of  witnesses  were  

recorded.

14. As  mentioned  hereinabove,  initially  Raj  

Kumar, ASI (now dead) did not find commission of  

any  cognizable  offence,  thus  he  dropped  the  

proceedings.  Only after registration of the FIR on  

6/3/2004,  the  criminal  machinery  was  set  into  

motion.

15. Post-mortem on the dead body of the deceased  

Vijay  was  performed  by  PW.4  Dr.  Kuldeep  Singh.  

Post-Mortem Report is marked as Ext.PD.  Doctor has  

opined that deceased was aged about 32 years, well  

built, having a height of about 5' 6”, appears to  

be more appropriate than what was mentioned in the

10

Inquest. He has further categorically recorded that  

on the dead body no bruises or wounds were found.  

Bladder and stomach both were found to be empty.  

The time of death was shown to be 36 hours prior to  

performing of post mortem. The cause of death was  

shown  to  be  excessive  drinking  of  alcohol  with  

poisonous substance.  On the strength of FSL report  

(Ext.P.1),  poisonous  substance  was  found  to  be  

aluminium  phosphide.  According  to  the  doctor,  

consumption  of  excessive  alcohol  coupled  with  

poisonous substance was sufficient to cause death  

in ordinary course of nature.

16. From the post-mortem report Exh. PE as also  

from  the  deposition  of  Dr.  Kuldeep  Singh-PW.4,  

either  deceased  had  met  with  homicidal  death  or  

committed suicide.

17. Now  the  question  that  crops  up  for  

consideration before us is whether it was the act  

of  the  aforesaid  five  appellants,  on  account  of  

which he met with the homicidal death or it was  

Vijay himself, with an intention to save his status  

and glory in the society, had consumed poisonous

11

substance, thereby committed suicide.

18. Prosecution in all had examined 12 witnesses  

on its behalf, to bring home the charges levelled  

against the  appellants.  The accused had generally  

denied  the  charges  levelled  against  them  and  

submitted  that  Vijay  had  committed  suicide,  on  

account of his misdeeds. They pleaded  innocence.  

They deposed that they have falsely been roped in  

by the prosecution on the strength of manufactured  

and engineered documents. The appellants did not  

lead any evidence on their behalf.   

19. On  appreciation  of  evidence  available  on  

record, learned Trial Judge found them guilty for  

commission of offences under Sections 302/149 of  

the  IPC  and  awarded  them  sentences  as  mentioned  

hereinabove.  The appeal filed by them in the High  

Court of Punjab and Haryana was dismissed and the  

findings recorded by the Trial Court were affirmed  

and the judgment and order of conviction of the  

Trial Court was maintained.  Hence these appeals.

12

20. We  have  accordingly  heard  learned  senior  

counsel Mr. S.K. Dubey with Ms. Mrinamayee Sahu and  

Sh.  Ajay  Beer  Singh  for  the  appellants  and  

Mr.  Kamal  Mohan  Gupta,  learned  counsel  for  the  

respondent  and  perused  the  record.   Evidence  

adduced  have  also  been  critically  and  

microscopically gone through by us.

21. Sheet  anchor  of  the  prosecution  story  has  

been the alleged dying declaration Exh. PG said to  

have been written by deceased Vijay, on the inside  

paper of a match box.  English translation thereof  

reads thus:  

Rajbir Singh S/o Bhuru  

Rampat S/o Ruppa  

Binder  

Nanhar  

are drinking liquor by mixing the Sulphas and  

would kill.  

It was written in vernacular language and in  

Hindi, as mentioned earlier, reads as under: “Daru  

ke sath Sulphas pila rahe hai. Marenge.”

22. The  aforesaid  dying  declaration  has  been  

found to be sufficient by the two courts below and  

appellants have been found guilty for commission of

13

offences under Sections 302/149 of the I.P.C. and  

have  been  awarded   sentence  as  mentioned  

hereinabove.   

23. Whether the same would fall in the category  

of dying declaration and if so, if it was sufficient  

to  uphold  the  conviction  and  sentence  awarded  to  

them  on  the  strength  thereof,  is  required  to  be  

examined by us.  

24. After critically going through the documents,  

not  only  Exh.  PG  but  also  the  oral  and  other  

documentary evidence  available on  record, we  find  

the  following  lacunae,  shortcoming,  lapses  and  

deficiencies in the prosecution story:

(i) the said dying declaration has not been  

signed by deceased Vijay.  

(ii)  If  the  appellants  were  really  present  

when the said dying declaration was said to have  

been  written,  then  obviously  they  would  not  have  

allowed him to write the said dying declaration.   

(iii) No recovery of pen was made from the  

site or from the person of the the deceased.

(iv) There is nothing either in the site plan

14

or in the recovery memo to suggest that the deceased  

was able to get any platform on which he could have  

written the said dying declaration.  

(v)  The  inner  pocket  of  the  match  box  

together with match sticks was not at all recovered.  

(vi) It is not established by the prosecution  

that the deceased was a smoker of bidi or cigarette.  

No butts or bidis were recovered from the place of  

occurrence.  

(vii) As per the post-mortem report performed  

on 25.2.2004, the death had occurred within 36 hours  

from  the  time  of  performing  of  the  post-mortem,  

meaning thereby that the incident must have taken  

place some time in the night.  

(viii)  There  is  nothing  on  record  to  show  

availability of electricity or any source of light  

at the spot.

(ix) In the Inquest Report prepared by ASI  

Raj  Kumar  (now  dead),  there  is  no  mention  with  

regard to the recovery of the dying declaration Exh.  

PG or recovery of pocket index telephone directory.

(x) Similarly, in the site plan prepared on  

the spot, there is no mention with regard to the  

recovery of dying declaration, pen or pocket diary

15

from the place of occurrence or from the body of the  

deceased.   

(xi) No finger prints either of the deceased  

or of the accused were taken, even though the same  

were available.   

(xii) Report of the Chemical Examiner dated  

6.10.2004 shows that the packets were received by  

him only on 10.3.2004 but no remnants of poisonous  

substance were found either in the two bottles or in  

the steel glass but were found only in the earth so  

collected  from  the  place  of  occurrence.  The  

poisonous substance has been described as Aluminium  

Phosphide.  

(xiii)  Except  for  the  evidence  of  PW-7  

Sudesh, PW-8 Ramesh, PW-9 Kartar Singh, PW-11 Dalip,  

who  all  happened  to  be  closely  related  to  the  

deceased, evidence of an independent witness was not  

recorded, even though there is evidence available to  

show that many villagers were available.   

(xiv) The evidence of PW-7 Sudesh and PW-11  

Dalip is highly contradictory inasmuch as Sudesh has  

not  deposed  anything  with  regard  to  recovery  of  

pocket index telephone diary from the person of the  

deceased;  whereas  Dalip  has  categorically  deposed

16

with regard to recovery of pocket index telephone  

diary from his possession.    

It  is  pertinent  to  mention  here  that  PW-7  

Sudesh  and  PW-11  Dalip  are  the  witnesses  to  the  

recovery memo said to have been prepared by ASI Raj  

Kumar who is said to have died during the pendency  

of  the  sessions  trial,  also  does  not  record  its  

recovery.     

(xv) It is extremely difficult to comprehend  

if the deceased was in a position to write the dying  

declaration,  more  so,  after  having  consumed  

excessive  amount  of  Alcohol  mixed  with  poisonous  

substance. Fact of excessive amount of Alcohol mixed  

with poison stands proved from the evidence of PW-4  

Dr.  Kuldeep  Singh,  who  had  performed  post-mortem  

(Exh. PD) on the person of the deceased.

(xvi) The post-moretm report further reveals  

that the deceased was aged about 32 years having a  

height of 5 feet 6 inches with a robust body.  It is  

inconceivable  to  believe  that  if  the  appellants  

would  have  tried  to  administer  him  Alcohol  mixed  

with poisonous substance, he would not have resisted  

to the same or at least would not have made any hue  

and cry. It also stands proved from the evidence of

17

PW-4 Dr. Kuldeep Singh and the post-mortem report  

that no bruises and external injuries were found on  

the person of the deceased.  

(xvii) No explanation has been offered by the  

prosecution as to why the blank pages of the pocket  

index telephone diary were not used to scribe it, if  

the same had been recovered from his possession.     

(xviii) The doctrine of motive could not be  

established by the prosecution at all. Thus another  

ground of holding them guilty on account of motive,  

completely shatters the prosecution story and falls  

flat.   

(xix) It could not be established that dying  

declaration  and  pocket  index  telephone  diary  

belonged to the deceased only. This aspect of the  

matter has not been established by the prosecution.  

(xx) Even if it stood established from the  

opinion  of  the  Handwriting  Expert  that  dying  

declaration and pocket index telephone diary were in  

the same hand, still it could not be established  

that it belonged to the deceased only.  

(xxi)  Possibility  of  implanting  of  these  

documents cannot be ruled out.

(xxii)  The  said  dying  declaration  does  not

18

inspire confidence, much less to hold the appellants  

guilty for commission of the said offence.  

25. In  fact,  the  salient  features  noted  above  

with regard to the deficiencies are sufficient, in  

our considered opinion, to come to the conclusion  

that  the  Courts  below  committed  grave  error  in  

holding  the  appellants  guilty  for  commission  of  

offence under Sections 302/149 of the I.P.C.

But with intention to fortify our views, we  

would like to reiterate what this Court has already  

held in its earlier leading judgments.  

26. Almost  25  years  back,  this  Court  in  

celebrated judgment in Sharad Birdhichand Sarda vs.  

State of Maharashtra, reported in 1984 (4) SCC 116,  

held in paragraph 151 and 161 thereof that it is  

well settled law that the prosecution must stand or  

fall  on  its  own  legs  and  it  cannot  derive  any  

strength  form  the  weaknesses  of  the  defence.  For  

ready reference, the said paragraphs are reproduced  

hereunder:  

“151.  It is  well settled  that the  

prosecution must stand or fall on its own

19

legs and it cannot derive any strength from  

the weakness  of the  defence. This  is   

trite law  and  no decision has  taken a  

contrary view.  What some  cases have held is  

only this:  where various  links in  a chain  

are in themselves complete than a false plea  

or a false defence may be called  into aid  

only to lend assurance to the Court. In other  

words,  before using  the additional  link it  

must be proved that all the  links in the  

chain are complete and do not suffer  from  

any infirmity. It is not the law that where  

is any infirmity or lacuna in the prosecution  

case, the same could be  cured or  supplied  

by  a false  defence or  a plea which is  

not accepted by a Court.

161. This Court,  therefore, has in no way  

departed from the five  conditions  laid down  

in  Hanumant's  case  (supra). Unfortunately,  

however,  the High  Court also  seems to have  

misconstrued this  decision and  used  the  

so-called  false defence put  up by  the  

appellant   as  one   of  the  additional  

circumstances  connected  with  the   chain.  

There  is a  vital difference between  an  

incomplete  chain  of  circumstances  and  a  

circumstance  which,  after  the  chain  is  

complete, is added to it merely to reinforce  

the  conclusion  of  the  court.  Where  the  

prosecution is unable  to prove  any of  the  

essential principles laid  down  in

20

Hanumant's case,  the  High   Court  

cannot supply the weakness or the lacuna by  

taking  aid  of  or  recourse  to   a  false  

defence  or  a  false  plea.  We are,  

therefore, unable  to accept  the argument of  

the Additional Solicitor-General.”   

27. Similarly,  when  the  case  is  based  on  

circumstantial  evidence,  it  has  now  been  well  

settled by several authorities of this Court that  

the chain of circumstances should be complete in all  

respect and the pointer of guilt should continuously  

be on the accused only. Any deviation of the pointer  

of guilt on the accused would enure him the benefit  

of doubt.   

28. No doubt it is true that ASI Raj Kumar, who  

had prepared the Inquest Report had died during the  

pendency  of  the  trial,  but  no  reasons  have  been  

assigned as to why other police personnel present  

along with ASI Raj Kumar, were not examined. They  

could have at least explained the true picture and  

proved  recovery  of  dying  declaration  and  pocket  

telephone  index  diary  from  possession  of  deceased  

Vijay.  

21

29. Admittedly, from the evidence of PW-7 Sudesh,  

it has come on record that the deceased Vijay was  

having bank account and he was also a member of some  

society,  where  his  standard  signatures  were  

available.  But those standard signatures were not  

made the basis for comparison of his hand-writing  

alleged to have been found from his possession. In  

the case of Sharad Birdhichand Sarda (supra), it has  

been dealt with elaborately as to how the chain of  

circumstantial evidence has to be complete in all  

respect.  The  relevant  paragraphs  153  &  154  are  

reproduced herein below:  

“153.     A close  analysis of  this decision  

would show that the following conditions must  

be fulfilled before a case against an accused  

can be said to be fully established:   

(1)   the  circumstances   from  which  the  

conclusion  of  guilt  is  to  be  drawn  

should be fully established. It may be noted  

here  that  this  Court  indicated  that  the  

circumstances concerned  'must or  should'  

and not 'may be' established. There  is  

not   only  a   grammatical  but   a  legal  

distinction between  'may be  proved' and  

'must be or should be proved'  as was  held

22

by  this Court in Shivaji Sahabrao Bobade &  

Anr.  v.  State  of  Maharashtra(')  where  the  

following observations were made:  

 'Certainly, it  is a primary  principle  

that  the accused must  be and  not merely  

may be guilty before a  court can convict and  

the  mental  distance  between  'may  be'  and  

'must  be'  is  long  and  divides  vague  

conjectures from sure conclusions.'  

(2)   The  facts  so  established  should  be  

consistent only with the  hypothesis of  the  

guilt of the accused, that is  to say. they  

should  not  be  explainable  on  any  other  

hypothesis except that  the   accused  is  

guilty.   

(3)   The  circumstances  should  be  of  a  

conclusive nature and tendency.   

(4)  They should exclude  every

possible  hypothesis except the one to  

be proved, and 164      (5)  There must  be a  

chain of evidence so complete as  not  to  

leave  any reasonable  ground  for  the  

conclusion consistent with the  innocence of  

the accused  and  must  show   that  in  

all   human probability the  act must  have  

been done by the accused.  

154. These  five  golden  principles,  if  we  

may  say so, constitute the panchsheel of  

the proof  of a case based on circumstantial  

evidence.”  

23

30. The aforesaid cardinal principles with regard  

to  the  completion  of  chain  of  circumstantial  

evidence for holding the appellants guilty could not  

be  established  at  all  by  the  prosecution  in  the  

present  case.  With  such  broken  chain  of  

circumstantial evidence,  at many  places, it  would  

neither be safe nor prudent to hold the appellants  

guilty.

31. Apart  from  the  above,  it  is  extremely  

difficult for us to come to the conclusion if Exh.  

PG can fall in the category of dying declaration at  

all or can be said to be legally admissible. Even  

though  we  have  categorically,  minutely  and  with  

microscopic  eyes  gone  through  the  said  document  

number of times, but it does not inspire confidence,  

more so, the manner in which it has been written.  

We  have  already  mentioned  hereinabove  that  after  

having consumed excessive liquor, it would not have  

been possible for any one, much less for Vijay, to  

have written the said dying declaration with so much  

of precision or with steady hand. In our considered  

opinion,  dying  declaration  should  be  such,which  

should immensely strike to be genuine and stating

24

true story of its maker. It should be free from all  

doubts and on going through it, an impression has to  

be  registered  immediately  in  mind  that  it  is  

genuine, true and not tainted with doubts. It should  

not be the result of tutoring. But dying declaration  

in  the  present  case  does  not  fulfill  these  

conditions.   

32. In  HWV  Cox  Medical  Jurisprudence  and  

Toxicology,  Seventh  Edition,  at  page  936,  under  

title  “Alcohols”,  deals  with  handwriting  after  

consumption of liquor. While coming to the general  

behaviour after excessive drinking, apart from other  

things, it has specifically been noted: “Character  

of  hand-writing:  There  is  often  difficulty  with  

letters, N, M and W.”   

33. In  the  same  book,  it  is  further  described  

that blood reaches all the organs, mainly the brain  

and  interferes  with  normal  brain  functions  like  

judgment and coordination of muscular movements. The  

blood alcohol level influences the behaviour of the  

person. The amount of alcohol present in the stomach  

and intestine has no effect but only indicates the

25

ingestion.

34. Obviously, it would go to show and we also  

come to the conclusion that after going through the  

handwriting, as has been found by us in the alleged  

dying  declaration  Ext.  PG,  it  would  have  been  

extremely difficult for him to write it as he could  

not have been in a mentally fit condition to have  

written the same.  

35. Unfortunately, this aspect of the matter has  

neither been considered by the learned Trial Judge  

nor has been adverted to by the Division Bench of  

the  High  court  and  yet  the  appellants  have  been  

found guilty for commission of the aforesaid offence.  

36. In our considered opinion, the said judgment  

and order of conviction passed by the Trial Court  

and upheld by the High Court, cannot be sustained in  

law. They are accordingly set aside and quashed. As  

a  necessary  consequence  thereof,  the  appellants  

would be set at liberty forthwith, if not required  

in connection with any other criminal case.  

26

Both the appeals are allowed accordingly.  

....................J (DEEPAK VERMA)

....................J (K.S. RADHAKRISHNAN)

New Delhi; June 11, 2010.