REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 78 OF 2007

MOHD. ASIF … APPELLANT

VERSUS

STATE OF UTTARANCHAL … RESPONDENT

J U D G M E N T

S.B. Sinha, J.

1.Khatima is a small town in the State of Uttaranchal. In a cinema

theatre known as ‘Sharda’ a movie ‘Akhri Insaf’ was being exhibited at the

relevant time. On or about 15.2.1981, Mohd. Saeed, the deceased, and his

friend Shakeel Ahmad (PW 3) were watching the night show of the said

movie in the said theatre. At about 10.30 p.m. Iqbal Ahmad (Iqbal), an

associate of the appellant went inside the cinema hall and asked the

deceased to come out therefrom. Meanwhile, the appellant waited outside.

The deceased followed Iqbal and came out of the cinema hall. Iqbal and

appellant started quarreling with the deceased. There was some heated

exchange of words. Both the accused took out knives which they were

carrying. Iqbal caught hold the deceased and appellant struck a blow with

the knife on the back of the deceased. PW 1 – Kanhaiya Lal, a betel

shopkeeper in the said theatre, PW-2 Hem Raj, gate-keeper of the cinema

hall and PW-3 Shakeel Ahmad witnessed the said occurrence. Hearing the

shouts and cries for help, PW-4 Constable Bachche Singh with another

constable Bhishma Singh also reached the spot. Appellant was

apprehended at the spot whereas Iqbal succeeded in running away. The

knife used by the appellant was also recovered from him. The deceased was

taken to a nearby hospital. He was referred to a hospital at Pilibhit. He died

four days after the incident, i.e., on 20.2.1981.

2.A First Information Report (FIR) under Section 307 of the Indian

Penal Code (IPC) was lodged on or about 16.2.1981. The case was

subsequently converted to one under Section 302 of the IPC.

3.A dying declaration of the deceased was recorded by one Javed

Usmani, Sub-Divisional Magistrate, Khatima on or about 15.2.1981, which

reads as under:

“About 1 – 1-1/2 hours before, I was watching

night show of movie at Sharda Cinema, then Iqbal

s/o unknown Asif s/o unknown asked me to come

out of the cinema hall. Iqbal had come to asked

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me to come out. I came outside. Iqbal started

getting angry upon me, I said do not get angry

upon me. There was hand-scuffle between me and

Iqbal, and Iqbal drew out the knife. Asif was also

scuffling with me and I was trying to keep myself

away from them. Asif also drew out the knife and

then Asif struck the knife blow at my back. Iqbal

ran away from the spot after the knife blow was

struck. Asif was apprehended by Shakeel s/o

Farooq. Shakeel had come along with me to

watch the movie. Beside Shakeel, there were two-

three more persons who apprehended Asif, whom

I do not know. There was no past enmity between

me and Iqbal and Asif. Asif used to live at

Mohalla Gotia near the Chakki in front of the

house of Farooq Master. Iqbal used to live at

Potters locality.

I had no past enmity with Asif but 3 – 4 days

before there was some altercation between Asif

and me at Gotia Mohalla. It may be possible that

because of this, today’s incident took place.”

4.Appellant was put to trial. He was found guilty of commission of an

offence punishable under Section 302/34 of the IPC and was sentenced to

undergo R.I. for life. An appeal was preferred thereagainst, which has been

dismissed by reason of the impugned judgment. However, as during the

pendency of the said appeal Iqbal expired, the appeal filed by him stood

abated.

5.Mr. K.V. Viswanathan, learned counsel appearing on behalf of the

appellant would contend that the deceased having been given only a single

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blow and that too on a non vital part of the body, no offence can be said to

have been committed by him under Section 302 of the Code. Drawing our

attention to the post-mortem report, the learned counsel would urge that the

deceased having died of pulmonary embolism and furthermore having

regard to the fact that before the purported attack a scuffle had taken place

and thus there being a sudden provocation, the High Court committed a

serious error in holding that the appellant had the intention to cause murder

of the deceased. In a case of this nature, Mr. Viswanathan would contend,

the principle of causa causan should be applied.

6.Mr. S.S. Shamshery, learned counsel appearing on behalf of the

respondent, on the other hand, would support the impugned judgment.

7.Indisputably, the deceased was watching a movie on that fatal night

with his friend Shakeel (PW-3). Appellant and Iqbal knew thereabout. The

fact that there existed a dispute between the appellant and the deceased is

neither denied nor disputed. Iqbal was sent by the appellant to ask the

deceased to come out of the cinema hall. As soon as he came out, appellant

along with Iqbal started quarreling with him. There was no cause therefor.

It was not a case of sudden provocation. Both the accused were armed with

knives. During the said quarrel, both of them took out their weapons. Iqbal

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caught hold of the deceased whereas appellant inflicted the injury. The

injury might have been inflicted on the back side of the lowermost part. The

depth of the wound could not be ascertained immediately. As per the injury

report prepared by Dr. L.D. Khatri (P.W.9), the stab wound was of the size

of about 2 cm x 1 cm x depth. . Edges of wound were found clean cut.

Both ends were pointed. Profused bleeding from the wound was noticed.

Even the sub coetaneous tissue was visible. As per the said doctor, the

injury was caused by a sharp edged weapon like a knife. The deceased had

to be operated upon. He, however, could not survive.

The post-mortem examination on the person of the deceased was held

on 21.2.1981 by Dr. A.K. Mehrotra. He, in his report, stated that the

deceased suffered the following ante-mortem injuries:

“i)Stitched wound 15 cm long, oblique 26 cm

below the auxiliary pit left side, drainage

put in.

ii)Stitched wound 2 cm long in lumbar region back of the

left side of abdomen 5 cm from injury no. 1.

iii)Cut open wounds on both legs on medical mellows 1 cm

x 0.5 cm x muscle deep.”

Whereas the first and third injuries were operational ones, injury No.2

was caused during the incident.

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Dr. A.K. Mehrotra, in his deposition before the court, inter alia,

stated:

“Left lung was infract and collapsed. There was a

big blood clot in the left pulmonary artery.

Peritoneum was stitched below the wound caused

by operation. The stomach was empty. Left

kidney was stitched at cortex.

In my opinion the cause of death was pulmonary

embolism.”

It was furthermore stated:

“It is possible that the kidney of the deceased was

ruptured because of the injury no. 2. And it is also

possible that the pulmonary embolism was due to

injury no. 2. The abovementioned injury no.2 was

sufficient to cause death in ordinary course of

nature. The above mentioned injuries no. 1 and 3

are likely to be related with the operation.”

To a question as to whether the stab wound of the size of about 2 cm

x 1 cm x depth would correspond to injury no.2 mentioned in the post-

mortem examination report, he answered in the affirmative. In his cross-

examination, he stated:

“Pulmonary embolism occurred due to the

blockage in the pulmonary artery. The pulmonary

embolism in the body was caused due to blood

clot. The said blood clot happens some times after

the operation. I cannot say definitely that the said

blood clot was caused because of injury no. 2”

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8.The term ‘Pulmonary’, it must be noted, refers to the lungs.

‘Pulmonary Embolism’ is described in Medical Dictionary, 2

nd

Edition, by

P.H. Collin as under:

“blockage of a pulmonary artery by a blood clot”

Further, it must be noted that pulmonary arteries take deoxygenated

blood from the heart to the lungs for oxygenation.

In Taylor’s Principles and Practice of Medical Jurisprudence, it is

stated:

“Pulmonary embolism is a condition in which

thrombi are formed on the walls of the pelvic and

leg veins and such thrombi break away and

embolise to the lungs. The veins themselves are

usually normal and the condition is referred to as

phlebothrombosis in contradistinction to

thrombophlebitis where thrombosis occurs in a

vein which is already inflamed. In this latter case

embolism is much less likely to occur as the

inflammation anchors the thrombus to the vessel

wall. Although the thrombosis is the primary

event the embolus itself usually consists of a tube

of thrombus with a central core of clotted blood.

When it reaches the lung its effects depend on its

size. Small ones are carried to the periphery of the

lung where they cause pulmonary infarcts but

large ones straddle the bifurcation of the

pulmonary artery completely blocking the blood

circulation. Spasm of the pulmonary arteries

around the thrombus only helps to make matters

worse. The cause of the thrombosis is thought to

be damage to the vessel wall by slowing of the

blood flow and pulmonary embolism frequently

causes death in people who are confined to bed,

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particularly in the postoperative period. It has even

been observed in people confined to an aeroplane

seat on long journeys such as the flight to

America.”

Pulmonary embolism is, thus, caused by reason of the blockage in the

lungs, a clot may form on any part of the body and then travel upto the

lungs. Pulmonary embolism is an extremely common and highly lethal

condition that is a leading cause of death in all age groups. It may arise

from anywhere in the body. It may be caused even during long air travels as

commonly it arises from the calf veins. It is not a disease by itself. It has

been argued by the learned counsel for the appellant that the death of the

deceased occurred due to pulmonary embolism as a result of the operation

that he had to undergo after the incident and not due to the injury caused to

him at the time of the scuffle. This argument has been rightly pointed out

by the lower court is misconceived.

Dying declaration in this case has been held to be reliable. The level

of reliance to be placed on a dying declaration by a court has now come to

be well settled. If it is trustworthy, a judgment of conviction can be based

thereupon.

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In Ranjit Singh & ors. vs. State of Punjab [(2006) 13 SCC 130], this

Court held:

“13. It is now well settled that conviction can be

recorded on the basis of a dying declaration alone,

if the same is wholly reliable, but in the event

there exists any suspicion as regards correctness or

otherwise of the said dying declaration, the Courts

in arriving at the judgment of conviction shall look

for some corroborating evidence. It is also well

known that in a case where inconsistencies in the

dying declarations, in relation to the active role

played by one or the other accused persons, exist,

the Court shall lean more towards the first dying

declaration than the second one.”

In Shakuntala (Smt.) vs. State of Haryana [(2007) 10 SCC 168], this

Court held:

“11. This is a case where the basis of conviction

of the accused is the dying declaration. The

situation in which a person is on deathbed is so

solemn and serene when he is dying that the grave

position in which he is placed, is the reason in law

to accept veracity of his statement. It is for this

reason the requirements of oath and cross-

examination are dispensed with. Besides, should

the dying declaration be excluded it will result in

miscarriage of justice because the victim being

generally the only eye-witness in a serious crime,

the exclusion of the statement would leave the

Court without a scrap of evidence.

12. Though a dying declaration is entitled to

great weight, it is worthwhile to note that the

accused has no power of cross- examination. Such

a power is essential for eliciting the truth as an

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obligation of oath could be. This is the reason the

Court also insists that the dying declaration should

be of such a nature as to inspire full confidence of

the Court in its correctness. The Court has to be on

guard that the statement of deceased was not as a

result of either tutoring, or prompting or a product

of imagination. The Court must be further satisfied

that the deceased was in a fit state of mind after a

clear opportunity to observe and identify the

assailant. Once the Court is satisfied that the

declaration was true and voluntary, undoubtedly, it

can base its conviction without any further

corroboration. It cannot be laid down as an

absolute rule of law that the dying declaration

cannot form the sole basis of conviction unless it

is corroborated. The rule requiring corroboration

is merely a rule of prudence. This Court has laid

down in several judgments the principles

governing dying declaration, which could be

summed up as under as indicated in Smt. Paniben

v. State of Gujarat [(1992) 2 SCC 474]: (SCC

pp.480-81, paras 18-19)

(i) There is neither rule of law nor of prudence

that dying declaration cannot be acted upon

without corroboration. [See Munnu Raja and Anr.

v. The State of Madhya Pradesh (1976) 3 SCC

104]

(ii) If the Court is satisfied that the dying

declaration is true and voluntary it can base

conviction on it, without corroboration. [See State

of Uttar Pradesh v. Ram Sagar Yadav and Ors.

(1985) 1 SCC 552, and Ramavati Devi v. State of

Bihar (1983) 1 SCC 211]

(iii) The Court has to scrutinize the dying

declaration carefully and must ensure that the

declaration is not the result of tutoring, prompting

or imagination. The deceased had an opportunity

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to observe and identify the assailants and was in a

fit state to make the declaration. [See K.

Ramachandra Reddy and Anr. v. The Public

Prosecutor (1976) 3 SCC 618]

(iv) Where dying declaration is suspicious, it

should not be acted upon without corroborative

evidence. [See Rasheed Beg v. State of Madhya

Pradesh (1974) 4 SCC 264]

(v) Where the deceased was unconscious and

could never make any dying declaration the

evidence with regard to it is to be rejected. [See

Kake Singh v. State of M.P. , 1981 Supp. SCC 25]

(vi) A dying declaration which suffers from

infirmity cannot form the basis of conviction. [See

Ram Manorath and Ors. v. State of U.P. (1981) 2

SCC 654]

(vii) Merely because a dying declaration does

contain the details as to the occurrence, it is not to

be rejected. [See State of Maharashtra v.

Krishnamurthi Laxmipati Naidu, 1980 Supp. SCC

455]

(viii) Equally, merely because it is a brief

statement, it is not to be discarded. On the

contrary, the shortness of the statement itself

guarantees truth. [See Surajdeo Ojha and Ors. v.

State of Bihar, 1980 Supp. SCC 769].

(ix) Normally the Court in order to satisfy

whether deceased was in a fit mental condition to

make the dying declaration look up to the medical

opinion. But where the eye- witness said that the

deceased was in a fit and conscious state to make

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the dying declaration, the medical opinion cannot

prevail. [See Nanhau Ram and Anr. v. State of

Madhya Pradesh, 1988 Supp SCC 152].

(x) Where the prosecution version differs from

the version as given in the dying declaration, the

said declaration cannot be acted upon. [See State

of U.P. v. Madan Mohan and Ors. (1989) 3 SCC

390].

(xi) Where there are more than one statement in

the nature of dying declaration, one first in point

of time must be preferred. Of course, if the

plurality of dying declaration could be held to be

trustworthy and reliable, it has to be accepted. [See

Mohanlal Gangaram Gehani v. State of

Maharashtra (1982) 1 SCC 700]”

In State of Rajasthan vs. Parthu [(2007) 12 SCC 754], this Court held:

“13. It is now a well settled principles of law that

a judgment of conviction can be recorded on the

basis of the dying declaration alone subject of

course to the satisfaction of the Court that the

same was true and voluntary. For the purpose of

ascertaining truth or voluntariness of the dying

declaration, the Court may look to the other

circumstances….”

We do not see any reason to differ with the ratio laid down therein.

{See also Samadhan Dhudaka Koli vs. State of Maharashtra [(2008) 16

SCALE 66]}

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9.It is not a case where the death of the deceased had nothing to do with

the injury inflicted. The utterances on the part of the appellant that he

would not leave the deceased alive indicate the state of mind on the part of

the appellant. The doctors tried their best to save his life. They could not

do it.

10.Section 299 of the IPC reads as under:

“299. Culpable homicide.- Whoever causes death

by doing an act with the intention of causing

death, or with the intention of causing such bodily

injury as is likely to cause death, or with the

knowledge that he is likely by such act to cause

death, commits the offence of culpable homicide.”

Explanation-2 appended thereto may also be noticed:

“Explanation 2.--Where death is caused by bodily

injury, the person who causes such bodily injury

shall be deemed to have caused the death,

although by resorting to proper remedies and

skilful treatment the death might have been

prevented.”

The operation of the deceased was necessitated because of the injury

inflicted upon him at the time of the incident and there would have been no

question of subjecting him to such an operation had he not been so seriously

injured in the incident. The operation of the deceased became necessary on

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account of the injury. It can hardly be argued that his death did not take

place due to the aforesaid injury.

11.The question which now arises for consideration is as to whether a

case for converting the sentence from Section 300 IPC to Section 304 IPC

has been made out.

Section 300 of the IPC reads as under:

“300. Murder.- Except in the cases hereinafter

excepted, culpable homicide is murder, if the act by

which the death is caused is done with the intention

of causing death, or--

Secondly.- If it is done with the intention of causing

such bodily injury as the offender knows to be likely

to cause the death of the person to whom the harm is

caused, or--

Thirdly.- If it is done with the intention of causing

bodily injury to any person and the bodily injury

intended to be inflicted is sufficient in the ordinary

course of nature to cause death, or--

Fourthly.- If the person committing the act knows that

it is so imminently dangerous that it must, in all

probability, cause death or such bodily injury as is

likely to cause death, and commits such act without

any excuse for incurring the risk of causing death or

such injury as aforesaid.”

Exception 4 thereof reads as under:

“Exception 4. - Culpable homicide is not murder

if it is committed without premeditation in a

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sudden fight in the heat of passion upon a sudden

quarrel and without the offender having taken

undue advantage or acted in a cruel or unusual

manner.

Exception 4 of Section 300 in this case would not arise.

12.Indisputably, commission of offence has been proved by the

witnesses Kanhaiya Lal (PW-1), Hem Raj (PW-2) and Shakeel Ahmad (PW-

3). The facts do not disclose any sudden provocation.

Indisputably, the doctor has noticed that left lung was infract and

collapsed. A big blood clot in the left pulmonary artery was also noticed.

There was thus no adequate blood supply.

13.There may be a scuffle but it occurred because of the overt acts on the

part of the appellant and Iqbal. We have noticed hereinbefore the manner in

which the assault had taken place as well as the manner in which the force

was applied in inflicting the assault is evident. It ruptured the kidney. The

wound was therefore deep. Profused bleeding was noticed. And that is the

reason he had to be operated upon.

15

14.The question with regard to finding out the intention on the part of

the accused to cause death depends upon the facts and circumstances of

each case. No hard and fast rule can be laid down therefor. Section 300 of

the Code provides that subject to the exceptions contained therein culpable

homicide would be murder if the act by which the death is caused is done

with the intention of causing death. Exception 1 thereto providing for a

situation when culpable homicide is not murder. In terms of Exception 1,

culpable homicide is not murder if the offender, whilst deprived of the

power of self-control by grave and sudden provocation, causes the death of

the person who gave the provocation or causes the death of any other person

by mistake or accident. The said provision is, however, subject to the

following:

“First – That the provocation is not sought or

voluntarily provoked by the offender as an excuse

for killing or doing harm to any person.

Secondly.- That the provocation is not given by

anything done in obedience to the law, or by a

public servant in the lawful exercise of the powers

of such public servant.

Thirdly.- That the provocation is not given by

anything done in the lawful exercise of the right of

private defence.”

The Explanation appended thereto states that whether the provocation

was grave and sudden enough to prevent the offence from amounting to

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murder is a question of fact. It is not a case of exercise of right of private

defence. The provocation was not given by a thing done in obedience to the

law, or by a public servant in the lawful exercise of the powers of such

public servant. The provocation, if any, was sought for by the offenders. In

this case, appellant and Iqbal must be held to have known that it was so

imminently dangerous that it must, in all probability, cause death or such

bodily injury as is likely to cause death.

What is meant by ‘imminently dangerous’ which, in all probability,

cause death or such bodily injury as is likely to cause death came up for

consideration before this Court in Virsa Singh vs. State of Punjab [AIR

1958 SC 465], wherein it was held:

“(15). ….We quote a few sentences earlier from

the same learned judgment :

"No doubt, if the prosecution prove and act

the natural consequences of which would be a

certain result and no evidence or explanation is

given, then a jury may, on a proper direction, find

that the prisoner is guilty of doing the act with

intent alleged."

That is exactly the position here. No evidence or

explanation is given about why the appellant

thrust a spear into the abdomen of the deceased

with such force that if penetrated the bowels and

three coils of the intestines came out of the would

and that digested food oozed out from cuts in three

places. In the absence of evidence, or reasonable

explanation, that the prisoner did not intend to stab

in the stomach with degree of force sufficient to

penetrate that far into the body, or to indicate that

his act was regrettable accident and that he

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intended otherwise, it would be perverse to

conclude that he did not intend to inflict the injury

that he did. Once that intend is established (and no

other conclusion is reasonably possible in this

case, and in any case it is a question of fact), the

rest is a matter for objective determination from

the medical and other evidence about the nature

and seriousness of the injury.”

A bench of this Court in Kesar Singh & Anr. vs. State of Haryana

[2008 (6) SCALE 433] applied the standard laid down in Virsa Singh

(supra) to hold:

“To put it shortly, the prosecution must prove the

following facts before it can bring a case under

Section 300, "3rdly":

First, it must establish, quite objectively, that a

bodily injury is present;

Secondly, the nature of the injury must be proved;

These are purely objective investigations.

Thirdly, it must be proved that there was an

intention to inflict that particular bodily injury,

that is to say, that it was not accidental or

unintentional, or that some other kind of injury

was intended. Once these three elements are

proved to be present, the enquiry proceeds further

and,

Fourthly, it must be proved that the injury of the

type just described made up of the three elements

set out above is sufficient to cause death in the

ordinary course of nature. This part of the enquiry

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is purely objective and inferential and has nothing

to do with the intention of the offender.

Once these four elements are established by the

prosecution (and, indisputably, the burden is on

the prosecution throughout) the offence is murder

under Section 300, "3rdly". It does not matter that

there was no intention to cause death. It does not

matter that there was no intention even to cause an

injury of a kind that is sufficient to cause death in

the ordinary course of nature (not that there is any

real distinction between the two). It does not even

matter that there is no knowledge that an act of

that kind will be likely to cause death. Once the

intention to cause the bodily injury is actually

found to be proved, the rest of the enquiry is

purely objective and the only question is whether,

as a matter of purely objective inference, the injury

is sufficient in the ordinary course of nature to

cause death….”

Applying the aforementioned principles, we have no doubt in our

mind that it is not a case which attracts the provisions of Section 304 Part II

of the IPC or Section 326 thereof

15.Mr. Viswanathan relied upon a decision of this Court in Chowa

Mandal & anr. vs. State of Bihar (Now Jharkhand) [(2004) 13 SCC 231].

In that case it was found that there was no motive, intention or knowledge

on the part of the offenders as to their act which led to the death of the

deceased. It was found that the incident had occurred on the spur of the

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moment without there being any intention of causing death or of causing

such injury as they knew was likely to cause death.

In State of Rajasthan vs. Jora Ram [(2005) 10 SCC 591] whereupon

again Mr. Viswanathan placed reliance, the High Court itself found that

medical evidence on record did not make out a case of murder as it

disclosed that the injuries found on the person of the deceased were simple

injuries and furthermore it was found that they were not sufficient in

ordinary course of nature to cause death as merely a bruise was found. Even

that injury was not attributed to the respondent therein.

In Gokul Parashram Patil vs. State of Maharashtra [(1981) 3 SCC

331], relied upon by Mr. Viswanathan, distinguishing Virsa Singh (supra),

this Court held:

“...The question thus is whether the particular

injury which was found to be sufficient in the

ordinary course of nature to cause death, in the

present case, was an injury intended by the

appellant. Our answer to the question is an

emphatic No. The solitary blow given by the

appellant to the deceased was on the left clavicle-a

non-vital part-and it would be too much to say that

the appellant knew that the superior venacava

would be cut as a result of that wound. Even a

medical man perhaps may not have been able to

judge the location of the superior venacava with

any precision of that type. The fact that the

venacava was cut must, therefore, be ascribed to a

non-intentional or accidental circumstance.”

20

Such is not the case here.

Reliance has also been placed by Mr. Viswanathan on Dashrath Singh

vs. State of U.P. [(2004) 7 SCC 408] wherein it was held:

“29. The medical evidence however does not

establish beyond reasonable doubt that the

ultimate cause of death was the aforesaid injury.

From the date of the surgery, the victim was alive

for 23 days and undergoing treatment in the

hospital. He survived for 38 days after the injury

was received. Not a word has been said and no

report or case-sheet has been filed to indicate the

condition of the patient after the surgery. No

doubt, there was no crass examination of the

Doctor (PW8) on this aspect. Yet, it was the

primary duty of the prosecution to adduce

evidence in regard to the post-operative condition

of the patient so that the scope for any intervening

ailment unconnected with the injury is ruled out.

This becomes ail the more important because of

the long time lag and the omission to hold post-

mortem. Apparently, there was a callous

indifference or lack of vigilance on the part of the

Investigating Officer in failing to ensure the post-

mortem examination in a case of this nature. PW 8

came forward with the explanation that the post-

mortem is not absolutely necessary to ascertain the

cause of death. But, then, the prosecution has to

establish beyond reasonable doubt that the

eventual cause of death was only the injury

inflicted by the appellant and nothing else, but it

has failed to do so.”

The said decision also has no application in the present case.

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16.It is not a case where the intervening ailment was wholly unconnected

with the injury. On the other hand, in Manubhai Atabhai vs. State of

Gujarat [(2007) 10 SCC 358], this court clearly held:

“Merely because a single blow was given that does

not automatically bring in application of Section

304 Part I IPC.”

We, therefore, are of the opinion that the appellant has rightly been

found guilty of commission of an offence under Section 302 of the IPC.

17.For the reasons aforementioned, there is no merit in the appeal. It is

dismissed accordingly.

……………………………….J.

[S.B. Sinha]

..…………………………..…J.

[Asok Kumar Ganguly]

New Delhi;

MARCH 06, 2009

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