Discharge u/s 239 CrPC in case of Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act read with Section 109 IPC. Discharge set aside by Apex Court.

Held :

1.           We are of the opinion that this was not the stage where the court should have appraised the evidence and discharged the  accused as if it was passing an order of  acquittal. Further, defect in investigation itself cannot be a ground for discharge. In our opinion, the order impugned suffers from grave error and calls for rectification.

2.           It is worth  mentioning that the Code contemplates discharge  of the accused by the Court of Sessions under Section 227 in a case triable by it; cases  instituted upon a police report are covered by  Section 239 and cases instituted otherwise than  on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different  provisions with regard to discharge of an accused. Under Section 227 of the Code, the  trial court is required to discharge the accused if it “considers that there is not sufficient  ground for proceeding against the accused”.  However, discharge under Section 239 can be  ordered when “the Magistrate considers the charge  against the accused to be groundless”. The power to discharge is exercisable under Section 245(1) when, “the Magistrate considers, for reasons to  be recorded that no case against the accused has  been made out which, if not repudiated, would  warrant his conviction.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.22-23 OF 2014

(@SPECIAL LEAVE PETITION(CRL.)NOs.3810-3811 of 2012)

STATE OF TAMILNADU BY INS.OF POLICE VIGILANCE AND ANTI CORRUPTION             … APPELLANT

VERSUS

N.SURESH RAJAN & ORS.                                                                  …RESPONDENTS

With

CRIMINAL APPEAL NO.26-38 OF 2014

(@SPECIAL LEAVE PETITION(CRL.)NOs. 134-146 of 2013)

STATE REP. BY DEPUTY SUPDT. OF POLICE

VIGILANCE AND ANTI CORRUPTION                                … APPELLANT

VERSUS

K.PONMUDI & ORS.                                           …RESPONDENTS

 

J U D G M E N T : CHANDRAMAULI KR. PRASAD, J.

CRIMINAL APPEAL NO.22-23 OF 2014 (@SPECIAL LEAVE PETITION(CRL.)Nos.3810-3811 of 2012)

The State of Tamil Nadu aggrieved by the order dated 10th of December, 2010 passed by the Madras High Court in Criminal R.C.No.528 of 2009 and Criminal M.P.(MD) No.1 of 2009, setting aside the order dated 25th of September, 2009 passed by the learned Chief Judicial Magistrate-cum-Special Judge, Nagercoil (hereinafter referred to as ‘the Special Judge’), whereby he refused to discharge the respondents, has preferred these special leave petitions.

Leave granted.

Short facts giving rise to the present appeals are that Respondent No. 1, N. Suresh Rajan, during the period from 13.05.1996 to 14.05.2001, was a Member of the Tamil Nadu Legislative Assembly as also a State Minister of Tourism. Respondent No. 2, K. Neelkanda Pillai is his father and Respondent No. 3, R.Rajam, his mother. On the basis of an information that N. Suresh Rajan, during his tenure as the Minister of Tourism, had acquired and was in possession of pecuniary resources and properties in his name and in the names of his father and mother, disproportionate to his known sources of income, Crime No. 7 of 2002 was registered at Kanyakumari Vigilance and Anti Corruption Department on 14^th of March, 2002 against the Minister N. Suresh Rajan, his father, mother, elder sister and his bother-in-law. During the course of the investigation, the investigating officer collected and gathered informations with regard to the property and pecuniary resources in possession of N. Suresh Rajan during his tenure as the Minister, in his name and in the name of others. On computation of the income of the Minister from his known sources and also expenditure incurred by him, it was found that the properties owned and possessed by him are disproportionate to his known sources of income to the tune of Rs. 23,77,950.94. The investigating officer not only examined the accused Minister but also his father and mother as also his sister and the brother-in-law. Ultimately, the investigating agency came to the conclusion that during the check period, Respondent No.1, N. Suresh Rajan has acquired and was in possession of pecuniary resources and properties in his name and in the names of his father, K. Neelakanda Pillai (Respondent No. 2) and mother R. Rajam (Respondent No. 3) and his wife D.S. Bharathi for total value of Rs. 17,58,412.47. The investigating officer also came to the conclusion that Minister’s father and mother never had any independent source of income commensurate with the property and pecuniary resources found acquired in their names. Accordingly, the investigating officer submitted the charge-sheet dated 4th of July, 2003 against Respondent No.1, the Minister and his father (Respondent No.2) and mother (Respondent No.3) respectively, alleging commission of an offence under Section 109 of the Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. Respondents filed application dated 5th of December, 2003 under Section 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), seeking their discharge. The Special Judge, by its order dated 25th of September, 2009 rejected their prayer. While doing so, the Special Judge observed as follows:

“At this stage it will be premature to say that there are no sufficient materials on the side of the state to frame any charge against them and the same would not be according to law in the opinion of this court and at the same time this court has come to know that there are basic materials for the purpose of framing charges against the 3 petitioners, the petition filed by the petitioners is dismissed and orders passed to that  effect.”

Aggrieved by the same, respondents filed criminal revision before the High Court. The High Court by the impugned judgment had set aside the order of the Special Judge and discharged the respondents on its finding that in the absence of any material to show that money passed from respondent No. 1 to his mother and father, latter cannot be said to be holding the property and resources in their names on behalf of their son. The High Court while passing the impugned order heavily relied on its earlier judgment in the case of State by Deputy Superintendent of Police, Vigilance and Anti Corruption Cuddalore Detachment v. K. Ponumudi & Ors. (2007-1MLJ-CRL.-100), the validity whereof is also under consideration in the connected appeals. The High Court while allowing the criminal revision observed as follows:

“12.In the instant case, the properties standing in the name of the petitioners 2 and 3 namely, A2 and A3 could not be held to be the properties or resources belonging to the 1^st accused in the absence of any investigation into the individual income resources of A2 and A3. Moreover, it is not disputed that A2 was a retired Head Master receiving pension and A3 is running a Financial Institution and an Income Tax assessee. In the absence of any material to show that A1’s money flow into the hands of A2 and A3, they cannot be said to be holding the properties and resources in their name on behalf of the first accused. There is also no material to show that A2 and A3 instigated A1 to acquire properties and resources disproportionate to his known source of income.”

It is in these circumstances that the appellant is before us.

CRIMINAL APPEAL NO.26-38 OF 2014 (@SPECIAL LEAVE PETITION(CRL.)Nos. 134-146 of 2013)

These special leave petitions are barred by limitation. There is delay of 1954 days in filing the petitions and 217 days in refiling the same. Applications have been filed for condoning the delay in filing and refiling the special leave petitions.

Mr. Ranjit Kumar, learned Senior Counsel for the petitioner submits that the delay in filing the special leave petitions has occurred as the Public Prosecutor earlier gave an opinion that it is not a fit case in which special leave petitions deserve to be filed. The Government accepted the opinion and decided not to file the special leave petitions. It is pointed out that the very Government in which one of the accused was a Minister had taken the aforesaid decision not to file special leave petitions. However, after the change of the Government, opinion was sought from the Advocate General, who opined that it is fit case in which the order impugned deserves to be challenged. Accordingly, it is submitted that the cause shown is sufficient to condone the delay.

Mr. Soli J. Sorabjee, learned Senior Counsel appearing for the respondents, however, submits that mere change of Government would not be sufficient to condone the inordinate delay. He submits that with the change of the Government, many issues which have attained finality would be reopened after long delay, which should not be allowed. According to him, condonation of huge delay on the ground that the successor Government, which belongs to a different political party, had taken the decision to file the special leave petitions would be setting a very dangerous precedent and it would lead to miscarriage of justice. He emphasizes that there is a life span for every legal remedy and condonation of delay is an exception. Reliance has been placed on a decision of this Court in the case of Postmaster General v. Living Media India Ltd., (2012) 3 SCC 563, and our attention has been drawn to Paragraph 29 of the judgment, which reads as follows:

“29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special  obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.”

Mr. Sorabjee further submits that the Limitation Act does not provide for different period of limitation for the Government in resorting to the remedy provided under the law and the case in hand being not a case of fraud or collusion by its officers or agents, the huge delay is not fit to be condoned. Reliance has also been placed on a decision of this Court in the case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448 and reference has been made to Paragraph 31 of the judgment, which reads as follows:

“31. It is true that when the State and its instrumentalities are the applicants seeking condonation of delay they may be entitled to certain amount of  latitude but the law of limitation is same for citizen and for governmental authorities. The Limitation Act does not provide for a different period to the Government in filing appeals or applications as such. It would be a different matter where the Government makes out a case where public interest was shown to have suffered owing to acts of fraud or collusion on the part of its officers or agents and where the officers were clearly at cross purposes with it. In a given case if any such facts are pleaded or proved they cannot be excluded from consideration and those factors may go into the judicial verdict. In the present case, no such facts are pleaded and proved though a feeble attempt by the learned counsel for the respondent was made to suggest collusion and fraud but without any basis. We cannot entertain the submission made across the Bar without there being any proper foundation in the pleadings.”

The contentions put forth by Mr. Sorabjee are weighty, deserving thoughtful consideration and at one point of time we were inclined to reject the applications filed for condonation of delay and dismiss the special leave petitions. However, on a second thought we find that the validity of the order impugned in these special leave petitions has to be gone into in criminal appeals arising out of Special Leave Petitions (Criminal) Nos. 3810-3811 of 2012 and in the face of it, it shall be unwise to dismiss these special leave petitions on the ground of limitation. It is worth mentioning here that the order impugned in the criminal appeals arising out of Special Leave Petition (Criminal) Nos. 3810-3811 of 2012, State of Tamil Nadu by Ins. Of Police, Vigilance and Anti Corruption v. N. Suresh Rajan & Ors., has been mainly rendered, relying on the decision in State by Deputy Superintendent of Police, Vigilance and Anti Corruption Cuddalore Detachment vs. K. Ponmudi and Ors.(2007-1MLJ-CRL.-100), which is impugned in the present special leave petitions. In fact, by order dated 3rd of January, 2013, these petitions were directed to be heard along with the aforesaid special leave petitions. In such circumstances, we condone the delay in filing and  refiling the special leave petitions.

In these petitions the State of Tamil Nadu impugns the order dated 11th of August, 2006 passed by the Madras High Court whereby the revision petitions filed against the order of discharge dated 21st of July, 2004 passed by the Special Judge/Chief Judicial Magistrate, Villupuram (hereinafter referred to as ‘the Special Judge’), in the Special Case No. 7 of 2003, have been dismissed.

Leave granted.

Shorn of unnecessary details, facts giving rise to the present appeals are that K. Ponumudi, respondent No. 1 herein, happened to be a Member of the State Legislative Assembly and a State Minister in the Tamil Nadu Government during the check period. P. Visalakshi Ponmudi (Respondent No.2) is his wife, whereas P.Saraswathi (Respondent No.3) (since deceased) was his mother-in-law. A.Manivannan (Respondent No.4) and A.Nandagopal (Respondent No.5) (since deceased) are the friends of the Minister (Respondent No.1). Respondent Nos. 3 to 5 during their lifetime were trustees of one Siga Educational Trust, Villupuram.

In the present appeals, we have to examine the validity of the order of discharge passed by the Special Judge as affirmed by the High Court. Hence, we consider it unnecessary to go into the details of the case of the prosecution or the defence of the respondent at this stage. Suffice it to say that, according to the prosecution, K. Ponmudi (Respondent No.1), as a Minister of Transport and a Member of the Tamil Nadu Legislative Assembly during the period from 13.05.1996 to 30.09.2001, had acquired and was in possession of pecuniary resources and properties in his name and in the names of his wife and sons, which were disproportionate to his known sources of income. Accordingly, Crime No. 4 of 2002 was registered at Cuddalore Village, Anti- Corruption Department on 14th of March, 2002 under Section 109 of the Indian Penal Code read with Section 13(2) and Section 13(1)(e) of the Prevention of Corruption Act, hereinafter referred to as ‘the Act’. During the course of investigation it transpired that between the period from 13.05.1996 to 31.03.2002, the Minister had acquired and possessed properties at Mathirimangalam, Kaspakaranai, Kappiampuliyur villages and other places in Villupuram Taluk, at Vittalapuram village and other places in Thindivanam Taluk, at Cuddalore and Pondicherry Towns, at Chennai and Trichy cities and at other places. It is alleged that respondent No.1- Minister being a public servant committed the offence of criminal misconduct by acquiring and being in possession of pecuniary resources and properties in his name and in the names of his wife, mother-in-law and also in the name of Siga Educational Trust, held by the other respondents on behalf of Respondent No. 1, the Minister, which were disproportionate to his known sources of income to the extent of Rs.3,08,35,066.97. According to the prosecution, he could not satisfactorily account for the assets and in this way, the Minister had committed the offence punishable under Section 13(2) read with Section 13(1)(e) of the Act.

In the course of investigation, it further transpired that during the check period and in the places stated above, other accused abetted the Minister in the commission of the offence by him. Respondent No. 2, the wife of the Minister, aided in commission of the offence by holding on his behalf a substantial portion of properties and pecuniary resources in her name as well as in the name of M/s. Visal Expo, of which she was the sole Proprietor. Similarly, Respondent No. 3, the mother-in-law, aided the Minister by holding on his behalf a substantial portion of properties and pecuniary resources in her name as well as in the name of Siga Educational Trust by purporting to be one of its Trustees. Similarly, Respondent No. 4 and Respondent No. 5 aided the Minister and held on his behalf a substantial portion of the properties and pecuniary resources in the name of Siga Educational Trust by purporting to be its Trustees. It is relevant here to mention that during the course of investigation, the statement of all other accused were taken and in the opinion of the investigating agency, after due scrutiny of their statements and further verification, the Minister was not able to satisfactorily account for the quantum of disproportionate assets. Accordingly, the Vigilance and Anti Corruption Department of the State Government submitted charge-sheet against the respondents under Section 109 of the Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the Act.

It is relevant here to state that the offences punishable under the scheme of the Act have to be tried by a Special Judge and he may take cognizance of the offence without commitment of the accused and the Judge trying the accused is required to follow the procedure prescribed by  the Code for the trial of warrant cases by the Magistrate. The Special Judge holding the trial is deemed to be a Court of Sessions. The respondents filed petition for discharge under Section 239 of the Code inter alia contending that the system which the prosecution had followed to ascertain the income of the accused is wrong. Initially, the check period was from 10.05.1996 to 13.09.2001 which, during the investigation, was enlarged from 13.05.1996 to 31.03.2002. Not only this, according to the accused, the income was undervalued and the expenditures exaggerated. According to Respondent No. 1, the Minister, income of the  individual property of his wife and that of his mother-in-law and their expenditure ought not to have been shown as his property. According to him, the allegation that the properties in their names are his benami properties is wrong. It was also contended that the valuation of the properties has been arrived at without taking into consideration the entire income and expenditure of Respondent No. 1. Respondents have also alleged that the investigating officer, who is the informant of the case, had acted autocratically and his action is vitiated by  bias. The Special Judge examined all these contentions and by order dated 21st of July, 2004 discharged Respondents on its finding that the investigation was not conducted properly. The Special Judge further held that the value of the property of Respondent Nos. 2 to 5 ought not to have been clubbed with that of the individual properties and income of Respondent No. 1 and by doing so, the assets of Respondent No. 1 cannot be said to be disproportionate to his known sources of income. On the aforesaid finding the Special Judge discharged all the accused. Aggrieved by the same, the State of Tamil Nadu filed separate revision petitions and the High Court, by the impugned order, has dismissed all the revision petitions. The High Court, while affirming the order of discharge, held that the prosecution committed an error by adding the income of other respondents, who were assessed under the Income Tax Act, in the income of Respondent No.1. In the opinion of the High Court, an independent and unbiased scrutiny of the entire documents furnished along with the final report would not make out any ground of framing of charges against any of the accused persons. While doing so, the High Court has observed as follows:

“18. The assets which admittedly, do not belong to Accused 1 and owned by individuals having independent source of income which are assessed under the Income Tax Act, were added as the assets of Accused -1. Such a procedure adopted by the prosecution is not only unsustainable but also illegal. An independent and unbiased scrutiny of the entire documents furnished along with the final report would not make out any ground for framing of charge as against any of the accused persons. The methodology adopted by the prosecution to establish the disproportionate assets with reference to the known source of income is absolutely erroneous.

xxx                                                                               xxx                                                           xxx

The theory of Benami is totally alien to the concept of trust and it is not legally sustainable to array the accused 3 to 5 as holders of the properties or that they are the benamies of the accused. The benami transaction has to be proved by the prosecution by producing legally permissible materials of a bona fide character which would directly prove the fact of benami and there is a total lack of materials on this account and hence the theory of benami has not been established even remotely by any evidence. On a prima-facie evidence it is evident that the other accused are possessed of sufficient funds for acquiring their properties and that A1 has nothing to do with those properties and that he cannot be called upon to explain the source of income of the acquisition made by other persons.

19……… Admittedly the accused are not possessed of the properties standing in the name of Trust and controlled by the Accused A3 to A5. The trust is an independent legal entity assessed to income tax and owning the properties. Only to boost the value of the assets the prosecution belatedly arrayed the Trustees of the Trust as accused 3 to 5 in order to foist a false case as against A1.

xxx                                                                              xxx                                                                   xxx

21………All the properties acquired by A2 and A3 in their individual capacity acquired out of their own income have been shown in the Income Tax Returns, which fact the prosecution also knows and also available in the records of the prosecution. The prosecution has no justification or reason to disregard those income tax returns to disallow such income while filing the final report. The documents now available on record also would clearly disprove the claim of benami transaction.”

The High court ultimately concluded as  follows:

“24…………Therefore, the trial court analyzing the materials and documents that were made available at the stage of framing charges and on their face value arrived at the right conclusion that charges could not be framed against the respondents/accused.”

Now we proceed to consider the legal position cconcerning the issue of discharge and validity of the orders impugned in these appeals in the background thereof. Mr. Ranjit Kumar submits that  the order impugned suffers from patent illegality. He points out that at the time of  framing of the charge the scope is limited and what is to be seen at this stage is as to whether on examination of the materials and the documents collected, the charge can be said to be groundless or not. He submits that at this stage, the court cannot appraise the evidence as is done at the time of trial. He points out that while passing the impugned orders, the evidence has been appraised and the case of the prosecution has been rejected, as is done after the trial while acquitting the accused.

Mr. Sorabjee as also Mr. N.V. Ganesh appearing on behalf of the respondents-accused, however, submit that when the court considers the applications for discharge, it has to examine the materials for the purpose of finding out as to whether the allegation made is groundless or not. They submit that at the time of consideration of  an application for discharge, nothing prevents the court to sift and weigh the evidence for the purpose of ascertaining as to whether the allegations made on the basis of the materials and the documents collected are groundless or not. They also contend that the court while considering such an application cannot act merely as a post-office or a mouthpiece of the prosecution. In support of the submission, reliance has been placed on a decision of this Court in the case of Sajjan Kumar v. CBI, (2010) 9 SCC 368 and our attention has been drawn to Paragraph 17(4) of the judgment, which reads as follows:

“17. In Union of India v. Prafulla Kumar Samal & Anr., 1979 (3) SCC 4, the scope of Section 227 CrPC was considered. After adverting to various decisions, this Court has enumerated the following principles:

xxx xxx xxx

 (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”

Yet another decision on which reliance has been placed is the decision of this Court in the case of Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, reference has been made to the following paragraph of the said judgment:

“12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”

We have bestowed our consideration to the  rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post-office and

may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative

value, it can frame the charge; though for  conviction, the court has to come to the  conclusion that the accused has committed the  offence. The law does not permit a mini trial at this stage. Reference in this connection can be  made to a recent decision of this Court in the  case of Sheoraj Singh Ahlawat & Ors. vs. State of  Uttar Pradesh & Anr., AIR 2013 SC 52, in which,  after analyzing various decisions on the point,  this Court endorsed the following view taken in  Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561:

“11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the  facts emerging there from, taken  at their face value, disclosed  the existence of all the  ingredients constituting the  alleged offence. At that stage, the court is not expected to go  deep into the probative value of  the material on record. What  needs to be considered is whether  there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been  made out. At that stage, even strong suspicion founded on  material which leads the court to  form a presumptive opinion as to the existence of the factual  ingredients constituting the offence alleged would justify the framing of charge against the  accused in respect of the  commission of that offence."

Now reverting to the decisions of this Court  in the case Sajjan Kumar (supra) and Dilawar Balu Kurane (supra), relied on by the respondents, we  are of the opinion that they do not advance their case. The aforesaid decisions consider the  provision of Section 227 of the Code and make it clear that at the stage of discharge the Court can not make a roving enquiry into the pros and  cons of the matter and weigh the evidence as if  it was conducting a trial. It is worth  mentioning that the Code contemplates discharge  of the accused by the Court of Sessions under Section 227 in a case triable by it; cases  instituted upon a police report are covered by  Section 239 and cases instituted otherwise than  on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different  provisions with regard to discharge of an accused. Under Section 227 of the Code, the  trial court is required to discharge the accused if it “considers that there is not sufficient  ground for proceeding against the accused”.  However, discharge under Section 239 can be  ordered when “the Magistrate considers the charge  against the accused to be groundless”. The power to discharge is exercisable under Section 245(1) when, “the Magistrate considers, for reasons to  be recorded that no case against the accused has  been made out which, if not repudiated, would  warrant his conviction”. Section 227 and 239  provide for discharge before the recording of  evidence on the basis of the police report, the  documents sent along with it and examination of  the accused after giving an opportunity to the  parties to be heard. However, the stage of  discharge under Section 245, on the other hand,  is reached only after the evidence referred in  Section 244 has been taken. Thus, there is  difference in the language employed in these provisions. But, in our opinion, notwithstanding  these differences, and whichever provision may be  applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in  this connection can be made to a judgment of this   Court in the case of R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716. The same reads as follows:

“43………………Notwithstanding this  difference in the position there is no scope for doubt that the stage at which the magistrate is  required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of “prima facie” case has to be applied. In spite of the difference in the language of the three sections, the legal  position is that if the Trial  court is satisfied that a prima facie case is made out, charge has to be framed.”

Bearing in mind the principles aforesaid, we  proceed to consider the facts of the present case. Here the allegation against the accused Minister (Respondent No.1), K. Ponmudi is that while he was a Member of the Tamil Nadu Legislative Assembly and a State Minister, he had  acquired and was in possession of the properties in the name of his wife as also his mother-inlaw, who along with his other friends, were of  Siga Educational Trust, Villupuram. According to  the prosecution, the properties of Siga Educational Trust, Villupuram were held by other  accused on behalf of the accused Minister. These  properties, according to the prosecution, in fact, were the properties of K.Ponumudi. Similarly, accused N. Suresh Rajan has acquired properties disproportionate to his known sources  of income in the names of his father and mother. While passing the order of discharge, the fact that the accused other than the two Ministers  have been assessed to income tax and paid income tax cannot be relied upon to discharge the  accused persons particularly in view of the  allegation made by the prosecution that there was no separate income to amass such huge properties. The property in the name of an income tax  assessee itself cannot be a ground to hold that  it actually belongs to such an assessee. In case this proposition is accepted, in our opinion, it will lead to disastrous consequences. It will  give opportunity to the corrupt public servants to amass property in the name of known persons, pay income tax on their behalf and then be out  from the mischief of law. While passing the  impugned orders, the court has not sifted the  materials for the purpose of finding out whether or not there is sufficient ground for proceeding  against the accused but whether that would  warrant a conviction. We are of the opinion that  this was not the stage where the court should  have appraised the evidence and discharged the accused as if it was passing an order of  acquittal. Further, defect in investigation  itself cannot be a ground for discharge. In our  opinion, the order impugned suffers from grave  error and calls for rectification.

Any observation made by us in this judgment  is for the purpose of disposal of these appeals and shall have no bearing on the trial. The  surviving respondents are directed to appear before the respective courts on 3rd of February, 2014. The Court shall proceed with the trial  from the stage of charge in accordance with law and make endeavour to dispose of the same  expeditiously.

In the result, we allow these appeals and set  aside the order of discharge with the aforesaid  observation.

………………..……………………………….J.

(CHANDRAMAULI KR. PRASAD)

………………….……………………………………… J.

(M.Y. EQBAL)

NEW DELHI,

JANUARY 06, 2014.

Criminal Trial- Burden of proof in criminal cases/ Prosecution must stand or fall on its own legs—It cannot derive any strength form the weaknesses of the defence

Held:

A. Criminal Trial—Burden of proof in criminal cases—Prosecution must stand or fall on its own legs—It cannot derive any strength form the weaknesses of the defence (Para-26)

Case-law relied on : Sharad Birdhichand Sarda vs. State of Maharashtra 1984 (4) SCC 116

 B. Indian Evidence Act, 1872—Section 3—Appreciation of circumstantial evidence—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. (Para-27)

 C. Indian Evidence Act, 1872—Section 114 (g)—Police officers who were present when the Inquest Report was prepared have not been examined—No reasons have been assigned—They could have at least explained the true picture and proved recovery of dying declaration and pocket telephone index diary from possession of deceased—Such non examination is held fatal to prosecution.  (Para-28)

 D. Indian Evidence Act, 1872—Section 32 (1)—Dying declaration—Dying declaration should be such, which should immensely strike to be genuine and stating 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

SUPREME COURT OF INDIA

DEEPAK VERMA & K.S. RADHAKRISHNAN, JJ.

Criminal Appeal No. 2496 of 2009 with Criminal Appeal No. 2497 of 2009

Decided on : 11.06.2010

NANHAR & ORS. Appellants     v  STATE OF HARYANA Respondent

ORDER:

 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 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 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 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 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 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 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 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.

 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 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 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.

 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 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 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 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 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 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 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 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 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.

 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 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.”

 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 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 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. Both the appeals are allowed accordingly.