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2005 DIGILAW 53 (HP)

AVTAR SINGH v. STATE OF H. P

2005-03-17

K.C.SOOD, LOKESHWAR SINGH PANTA

body2005
JUDGMENT Lokeshwar Singh Panta, J.—Appellant Avtar Singh (hereinafter referred to as the accused) has challenged the judgment and order dated 1.10.2002 passed by learned Additional Sessions Judge-II, Kangra at Dharamshala convicting him under Section 302 of the Indian Penal Code (for short IPC) and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months. Fine, if realized was ordered to be paid to the wife of deceased Darshan Singh as compensation. 2. Briefly stated the prosecution case is as follow:— 3. PW-5 Smt. Sushila Devi is the wife of Avtar Singh accused and sister of Darshan Singh (deceased). She was holder of joint account in Punjab National Bank with the accused. She withdrew a sum of Rs. 10,000/ - in the year 1996 from the Bank without consent of the accused for the marriage of her second brother namely PW-4 Kirpal Singh. On this account the accused used to quarrel with PW-5. She informed the deceased, his wife PW-2 Smt. Divya Devi and PW-16 Naginder Singh cousin brother of the deceased about the ill behaviour of the accused. The deceased alongwith PW-2 and their small child came to the house of the accused on 21.2.2001 to patch up the differences between accused and his wife PW-5. On 22.2.2001 the accused started quarrelling with PW-5 in the presence of the deceased and PWs 2 and 16. The deceased tried to pacify the accused but he asked the deceased and his wife PW-2 to go out from his house. They went to the house of DW-2 Smt. Sudershna Devi sister of the accused in village Kiari. They informed DW-2 about the conduct of the accused. The deceased telephonically asked his second brother PW-4 to reach at the house of the accused. When the deceased, his wife (PW-2), his brother (PW-4, his cousin brother (PW-16) and DW-2 were going to the house of the accused, a son of the accused coming from the school met them on the way and told that his father had taken out a gun and he was sitting in the court yard armed with gun. When the deceased, his wife (PW-2), his brother (PW-4, his cousin brother (PW-16) and DW-2 were going to the house of the accused, a son of the accused coming from the school met them on the way and told that his father had taken out a gun and he was sitting in the court yard armed with gun. When these persons reached at the court yard of the accused, the deceased tried to pacify him but the accused fired a gun shot hitting the right side of the chest of Darshan who was taken in an injured condition to Community Health Centre, Shahpur in Tractor Trolley. 4. PW-1 Dr. Mohan Singh, Medical Officer posted at CHC Shahpur examined Darshan Singh at about 5.25 p.m. He informed the Police that one person with gun shot injuries was brought to Community Health Centre Shahpur. The information was recorded in Roznamcha vide Rapat No. 14 (Ext.PW-19/A) dated 22.2.2001 by PW-21 Virender Kumar Assistant Sub-Inspector. PW-21 immediately rushed to Community Health Centre, Shahpur alongwith some police officials where the relatives of the injured Darshan Singh were busy in procuring medicines etc. for his treatment. He recorded the statement of PW-12 Ajit Pal, Pardhan Gram Panchayat Dohab who was present in the Hospital Ext.PW-12/A under Section 154 Cr.P.C. which was sent to the Police Station through HHG Pawan Kumar for registration of the case. On the basis of the said statement formal First Information Report Ext.PW-19/C was recorded by PW-19 H.C. Vishesh Kumar in Police Station, Shahpur under Section 307 of the IPC and Sections 27/54/59 of Arms Act. 5. PW-1 Dr. Mohan Singh on examination of the injured found the following injuries on the person of Darshan Singh:— "There was a enterance hole with abraded blackish ring 3" x 3" of size circular in shape in the right enterior exillary fold with numberous multiplicity of the shots and wad as around the penetrating wound extending upto mid clavicular line to right side of nipple then upto 7 rib in mid axillary line, then upto right elbow joint of right arm and deltoid muscle of right arm. There was profused bleeding from the wound". PW-21 Virender Kumar Investigating Officer presented application Ext. PW-13/A seekiog the opinion of the Doctor in regard to the fitness of the injured to make statement. Doctor opined that the patient was not fit to make statement. There was profused bleeding from the wound". PW-21 Virender Kumar Investigating Officer presented application Ext. PW-13/A seekiog the opinion of the Doctor in regard to the fitness of the injured to make statement. Doctor opined that the patient was not fit to make statement. Darshan Singh succumbed to the injuries in the hospital. In the opinion of Doctor the injuries found on the body of the deceased was possible by double barrel or single barrel gun. The lungs of the deceased were hit by the bullet on the right side. No exit wound was found on the body of the deceased. 6. The dead body of the deceased was taken to Zonal Hospital, Dharmshala. PW-13 Dr. D.P. Swami Lecturer in Medical College Tanda had conducted the post-mortem on the dead body of the deceased on 23.2.2001 at 11. a.m. As per the post-mortem report Ext.PW-13/C, the shirt of the deceased contained multiple holes and smell of fire-arm ammunition in area 5" x 3". Vest was blood stained containing multiple 35-40 holes in 11" x 3". Dr. Swami found the following ANTI MORTEM INJURIES (FIREARMS):— "1. Lacerated wound on right upper side (mid axillary line) 2" x 1" oval opending, lacerated margine deep 3" upto right side of chest front and inner side of upper right arm. Radish in area 10" x 7". 7. In the opinion of Dr. Swami the deceased died of asphysia and haemorrhage shock due to multiple ante mortem smooth borne fore-arm. The probable time of injury and death was 1 to 4 hours. 8. PW-21 inspected the spot and prepared the inquest paper PW-13/B and Site plan Ext.PW-21/A. He took into possession the fire cap and blood stains on the spot in the presence of PW-12 the Pardhan of the area. Photographs of the spot Ext.PW-17/1 to Ext.PW-17/6 were also taken. He procured Akas Tatima Ext.PW-8/A and copy of Jamabandi Ext.PW-8/B of the spot where the accused allegedly had fired gun shot at Darshan Singh deceased. He also collected the documents Ext.PW-6/A etc. from Punjab National Bank, Shahpur. 9. Further case of the prosecution was that on the day of incident, the accused came in the Police Station armed with a double barrel gun at about 8.05 p.m. He admitted before PW-20 ASI Negi Ram that he had fired gun shot at his brother-in-law Darshan Singh. He also collected the documents Ext.PW-6/A etc. from Punjab National Bank, Shahpur. 9. Further case of the prosecution was that on the day of incident, the accused came in the Police Station armed with a double barrel gun at about 8.05 p.m. He admitted before PW-20 ASI Negi Ram that he had fired gun shot at his brother-in-law Darshan Singh. PW-20 recorded the version of the accused in Rapat Ext.PW-19/D. The gun of the accused was taken into possession which was wrapped with a piece of cloth and sealed with seal impression T. The accused was arrested and was also medically examined. 10. As per report (Ext. PA) of the Scientific Officer, State Forensic Science Laboratory, Junga, gun Ext. P-7 was found in working order and one empty cartridge in the right barrel having been found fired from the gun and pallets four in numbers might be the part of the fired cartridges. 11. On completion of the investigation, PW-21 laid charge sheet against the accused for the commission of offence under Section 302 IPC and under Sections 27/54/59 of Arms Act before the learned Judicial Magistrate. 12. The trial of the case was committed to the learned Sessions Judge, Kangra at Dharamshala by the learned Judicial Magistrate. The learned Sessions Judge assigned the Sessions case to the learned Additional Sessions Judge (II) Kangra at Dharamshala for disposal. The learned trial Court having found prima facie case against the accused, charge sheeted him under Section 302 IPC. The accused pleaded not guilty to the charge and claimed trial. 13. In order to bring home the accusation, 21 witnesses were examined by the prosecution. 14. The accused in his statement recorded under Section 313 Cr.P.C. pleaded that some of the witnesses are the relatives of the deceased who have been misguided by PW-15 Prithvi Singh to lodge a false case against him as he has some landed dispute with Prithvi Singh. He stated that the gun shot was fired accidentally and after the incident he hired a Tractor and carried the injured Darshan Singh therein to the hospital. In support of his case, the accused examined DW-1 Suresh Kumar, Pharmacist posted in District Jail Dispensary, Dharamshala during the relevant time and his sister DW-2 Smt. Sudershna Devi. The trial Court found the evidence of PW-1 Dr. In support of his case, the accused examined DW-1 Suresh Kumar, Pharmacist posted in District Jail Dispensary, Dharamshala during the relevant time and his sister DW-2 Smt. Sudershna Devi. The trial Court found the evidence of PW-1 Dr. Mohan Singh, PW-2 Smt. Divya Devi wife of the deceased, PW-4 Kirpal Singh brother of the deceased, PW-13 Dr. D.P. Swami, PW-12 Ajit Pal, Pardhan of the Gram Panhcyat, PW-16 Naginder Singh cousin brother of the deceased, PW-19 H.C. Vishesh Kumar, PW-20 ASI Negi Ram and (PW-21) ASI Varinder Kumar the Investigating Officer cogent and reliable. Placing reliance on their evidence and documentary evidence coming on the record, the learned trial Court found the accused guilty for the commission of the offence punishable under Section 302 IPC. He, therefore, vide judgment and order dated 1.10.2002 convicted and sentenced the accused as aforesaid. 15. Feeling aggrieved by conviction and sentence imposed upon him, the accused has preferred this appeal from jail. 16. This Court has appointed Shri M.S. Guleria, Advocate to defend the accused as Legal Aid Counsel. 17. In support of the appeal, the learned Counsel for the accused submitted that the trial Court has not analysed and appreciated the evidence in proper perspective. The Investigating Officer has not recorded the statement of the closed relatives of the deceased who were present in the hospital about the truthfulness of the case but he had choosen PW-12 the Pardhan of the Panchayat to make statement under Section 154 Cr.P.C. which would go to show that the investigation was not fair. He next contended that from the evidence of the prosecution witnesses it becomes clear that the relation of the accused with his wife PW-5 Smt. Sushila Devi were cordial and there was no occasion for the deceased to have gone to the house of the accused to patch up their alleged differences and the defence of the accused that the bullet of the gun hit the deceased is more plausible and acceptable than the cocked up story of the prosecution against the accused. Finally, he submitted that there was no intention on the part of the accused to fire gun shot at the person of his brother-in-law and the case, if found having been proved against him would fall under Section 304 Part II IPC. 18. Finally, he submitted that there was no intention on the part of the accused to fire gun shot at the person of his brother-in-law and the case, if found having been proved against him would fall under Section 304 Part II IPC. 18. In response, learned Additional Advocate General for the State supported the judgment of the learned trial Court and further submitted that in view of the analysis of the evidence made by learned trial Court and the nature of the injuries on the vital part of the body of the deceased would prove that the accused had the intention to commit the murder of the deceased, no interference is called for and the accused has been rightly convicted by the learned trial Court for offence punishable under Section 302 IPC. 19. In order to appreciate the rival contentions of learned Counsel for the parties, we have reappraised and scrutinized the evidence appearing on the record. 20. PW-2 Smt. Divya Devi wife of deceased Darshan Singh stated that before his death, her husband iras serving in the CISE PW-5 Smt. Sushila Devi is her sister-in-law i.e. sister of her late husband and she is the wife of the accused. The accused is retired Army official. On 21.2.2001 she along with her husband went to the house of the accused on the request of PW-5 and stayed there for one night. On 22.2.2001 PW-4 Kirpal Singh elder brother and PW-16 Naginder Singh cousin brother of the deceased were called at the house of the accused. DW-2 Smt. Sudershna Devi sister of the accused was also present in the house of the accused. When her husband Darshan Singh was standing in the courtyard of the accused, the accused fired a gun shot at him from a distance of about 5 feet. This witness has resiled from her earlier statement and was declared hostile. In cross-examination conducted by the learned Public Prosecutor, she has admitted that the accused without any rhyam or reason fired a bullet shot from his gun hitting the chest of her husband. She admitted that after inflicting the bullet injury on the person of her husband, the accused carrying the gun fled from the scene of occurrence towards the jungle side. She with the help of her other relatives took her husband to the hospital where he succumbed to the injuries at about 6.10 p.m. on 22.2.2001. She admitted that after inflicting the bullet injury on the person of her husband, the accused carrying the gun fled from the scene of occurrence towards the jungle side. She with the help of her other relatives took her husband to the hospital where he succumbed to the injuries at about 6.10 p.m. on 22.2.2001. She deposed that she could not disclose to PW-1 Doctor in Community Health Centre, Shahpur that the accused had inflicted bullet injury with his gun at the chest of her husband as she was perplexed. A suggestion of the defence that the accused was going to jungle for hunting and his wife PW-5 started snatching the gun from his hand and in that process the bullet was fired accidentally hitting her husband was categorically denied by her. She also denied the suggestion of the defence that the gun shot was not fired in her presence as she at that time was inside the kitchen of the house of the accused. Further suggestion of the defence that the accused lifted her husband from the ground and took him to hospital was also denied by her. She again, reaffirmed that the accused after firing the bullet from the gun ran away from the scene of occurrence towards jungle side. 21. PW-4 brother of the deceased has categorically stated that on 22.2.2001 he alongwith his deceased brother, sister-in-law and PW-16 had gone to the house of the accused for settlement of some minor family dispute of the accused with his wife PW-5. The accused suddenly fired a bullet from his gun hitting at the chest of the deceased. He along with other relatives brought the deceased to the hospital on a Tractor. After firing the bullet shot the accused fled towards the jungle. He chased the accused upto a considerable distance but he could not be apprehended. DW-2 sister of the accused was also present at the scene of the occurrence when gun shot was fired at the person of the deceased by the accused. He denied the suggestion of the defence that the accused was going to the jungle armed with gun for haunting and his wife PW-5 had tried to stop him and she tried to snatch the gun from his hand and in that process the gun went off accidentally. 22. He denied the suggestion of the defence that the accused was going to the jungle armed with gun for haunting and his wife PW-5 had tried to stop him and she tried to snatch the gun from his hand and in that process the gun went off accidentally. 22. PW-5 wife of the accused and sister of the deceased has admitted that her brother Darshan Singh and his wife PW-2 came to her house on the date of the incident. She turned hostile-to the prosecution. She admitted in the cross-examination that two FDRs of Rs. 10,000/- each and one FDR of Rs. 30,000/- were lying in deposit in the Bank in her joint account with the accused. Her second brother PW-4 was married in the year 1996. A sum of Rs. 14,000/- on the maturity of the FDR of Rs. 10,000/- was encashed by her husband and the said amount was spent on the marriage of PW-4. She has admitted the suggestion of the prosecution that on 22.2.2001 her elder brother PW-4 Kirpal Singh and maternal uncles son PW-16 were also present at her house to settle a minor family dispute between her and the accused. She admitted that after firing the gun shot the accused fled towards the jungle. She also deposed that she did not make any attempt to snatch the gun from the hand of her husband. 23. PW-6 Tarlok Sharma at the relevant time was the Manager of Punjab National Bank, Shahpur Branch. It is his evidence that on 2.3.1996 PW-5 wife of the accused withdrew an amount of Rs. 14,000/- on maturity of one FDR of Rs. 10,000/-. The FDR was in the joint account of PW-5 and the accused. About six months before the date of recording of his evidence by the Court i.e. 19.10.2001, the accused came to him and enquired as to how a sum of Rs. 14,000/- was allowed to be withdrawn from his joint account with his wife. He told the accused that since his wife was joint holder of the account and after maturity of the FDR the matured value of the FD was credited to the joint account, which was duly operated by his wife. He placed on record a photo stat copy of joint account of accused and his wife as (Ext.PW-6/A). 24. PW-10 Abhishek is the owner of Tractor Bearing No. H.P-36-3442. He placed on record a photo stat copy of joint account of accused and his wife as (Ext.PW-6/A). 24. PW-10 Abhishek is the owner of Tractor Bearing No. H.P-36-3442. As per his deposition, on the day of occurrence, the accused came to him alongwith some other persons and requested him to take injured Darshan Singh to hospital. He was declared hostile. In the cross-examination conducted by the learned Public Prosecutor, he states that there were large number of persons coming in a hord towards the tractor when injured Darshan Singh was to be taken to the hospital. 25. PW-12 Ajit Pal the Pardhan of Gram Panchayat, Dhob has deposed that on 22.2.2001 he received a telephonic message at Shahpur Bazar that a murder had taken place in the village and he should reach at the hospital. On reaching the CHC Shahpur, he noticed that Darshan Singh sustained bullet injury on his chest. His statement under Section 154 Cr.P.C. (Ext.PW-12/A) was recorded by the police in the hospital which was duly signed by him. He was associated in the investigation by the police. This witness was also declared hostile, but in the cross-examination conducted by the learned Public Prosecutor he has admitted the preparation of the seizure memos by the Investigating Officer on the spot and his signature appended thereon. 26. In the presence of PW-14 Sanjay Kumar Up-Pardhan of the Gram Panchayat, the police took into possession some pellets from inside the box of the accused from his house. A gun licence was also handed over to the police by the accused. From the house of the accused, the police took into possession three wads of papers and one wad of plastic in the presence of PW-15 Prithi Singh. The recovered articles were taken into possession vide recovery memo (Ext. PW-14/A) duly signed by the PW-15. It has come in the cross-examination of the witness conducted by the defence that the accused is his nephew. He has denied the suggestion of the defence that he is making false statement against the accused as there was some landed dispute between them. 27. PW-16 has turned hostile to the prosecution, to the extent of giving the date of the incident. He has denied the suggestion of the defence that he is making false statement against the accused as there was some landed dispute between them. 27. PW-16 has turned hostile to the prosecution, to the extent of giving the date of the incident. As per his version it was on 13.2.2001 when he along with PW-2 and the deceased had gone to the house of the accused when the accused fired a gun shot at the chest of the deceased. A suggestion of the learned Public Prosecutor that the incident had taken place on 22.2.2001 and not on 13.2.2001 as deposed by him, was denied by him. He admitted the suggestion of the learned Public Prosecutor that after firing the gun shot the accused fled towards the jungle. In the cross-examination of the defence, he admitted that the accused had fired the gun shot at the chest of the deceased in his presence when the deceased was at a distance of about three feet from the accused. 28. PW-19 H.C. Vishesh Kumar recorded the FIR (Ext.PW-19/C) on the basis of the ruka. In his presence the accused came to Police Station at about 8.05 p.m. on the day of occurrence and disclosed to PW-20 ASI Negi Ram that he had fired a gun shot at the person of his brother-in-law Darshan Singh. The information was recorded in Rapat Rojnamcha (Ext.PW-19/B). The gun (Ext.P-7) was taken into possession and on its visual inspection one spent cartridge was found in its right barrel. Both the heads of the barrel was closed with a piece of cloth and was sealed with seal impression T. All the articles recovered by the Investigating Officer from the spot and seven empty cartridges and four live cartridges were deposited with him. He kept all the articles in safe custody. 29. PW-20 ASI Negi Ram has corroborated the version of PW-19 in its entirety. A suggestion of the defence that gun Ext.P-7 was produced by the accused to PW-21 the Investigating Officer in the hospital is categorically denied by him. 30. PW-21 the Investigating Officer has given the details of the investigation conducted by him. He denied the suggestion of the defence that the accused met him in the hospital accompanying the deceased and told him that the gun went off accidentally. 30. PW-21 the Investigating Officer has given the details of the investigation conducted by him. He denied the suggestion of the defence that the accused met him in the hospital accompanying the deceased and told him that the gun went off accidentally. He also denied the suggestion that the accused brought the gun from his house and produced it before him. 31. The medical evidence of PW-1 and PW-13 has corroborated the evidence of the other witnesses that the deceased died due to bullet injury sustained by him on his chest. The accused has admitted the presence of the deceased and his wife PW-2 in his house on 21.2.2001 and 22.2.2002 in answer to question No. 2 of statement recorded under Section 313 Cr.P.C. In answer to question No. 4 his reply was that the gun was fired accidentally and he did not know whether it was he or his wife who pressed the trigger of the gun. The accused pleaded twin defences namely, (i) that he was mentally unsound when the incident had taken place and (ii) that the gun was fired accidentally when his wife tried to snatch it from his hand. 32. In support of his first defence plea the accused has examined DW-1 Sh. Suresh Kumar who at the relevant time was posted as Pharmacist in District Jail Dispensary, Dharamshala when the accused was remanded to judicial custody on 26.2.2001. The accused was medically examined by Doctor in jail with whom DW-1 was working as Pharmacist. He was treated for psychiatric disorder in District Jail Hospital. He has admitted in the cross-examination that he did not intimate the Court about the mental disorder of the accused but he intimated the family members of the accused who used to visit him in jail. He also admitted that because of shock after committing the crime, the accused might be suffering from mental disorder. As per his version during the stay of the accused in jail, he never misbehaved with any person. The plea of the accused that he was not mentally sound is not corroborated by any evidence on record. The accused has not pleaded this defence in his statement under Section 313 Cr.P.C, nor his wife PW-5 has stated so in her deposition before the Court. This plea of the accused appears to be after thought and cannot be accepted. The plea of the accused that he was not mentally sound is not corroborated by any evidence on record. The accused has not pleaded this defence in his statement under Section 313 Cr.P.C, nor his wife PW-5 has stated so in her deposition before the Court. This plea of the accused appears to be after thought and cannot be accepted. He was found mentally sound by the family members, relatives and other village people before the commission of the offence. The prosecution has established on record by leading cogent, reliable and acceptable evidence as discussed above that the accused had fired bullet shot from his gun which caused blood injury on the chest of the deceased and after committing the crime the accused fled from the scene of the occurrence towards jungle side and appeared before PW-20 in Police Station, armed with the gun used by him in the crime. He disclosed to PWs 19 and 20 that he fired bullet from his gun resulting the death of his brother-in-law namely Darshan Singh. 33. DW-2 Smt. Sudershna Devi sister of the accused has admitted that in the month of February 2001, the deceased, his wife and their son came to the house of the accused. The relations of the accused with his wife was cordial and she never saw the accused quarreling with his wife. She stated that on 22.2.2001 the accused brought fodder for his cattle from the jungle. She along with the accused, his wife PW-5 and their children were in the house. The accused told his wife that he was going to jungle for haunting. He brought his gun from the room of his house. His wife requested him not to go to jungle as he was already tired. His wife tried to snatch the gun from the hand of the accused but in that process the gun went off and as a result thereof one bullet injured the chest of the deceased who was coming from the opposite direction. She has tired to support the version of the accused that it was he who arranged the tractor and took the deceased to the hospital in the said tractor. She has tired to support the version of the accused that it was he who arranged the tractor and took the deceased to the hospital in the said tractor. She has admitted in the cross-examination that the accused is her sole brother and on 22.8.2002 when her statement was recorded in the Court, it was Rakhi day and she tied the Rakhi on the wrist of the accused out side the Court premises. The evidence of this witness that the bullet of the gun accidentally hit the deceased stands fully falsified from the evidence of PW-5 Smt. Sushila Devi wife of the accused. As noticed above PW-5 the wife of the accused has categorically admitted that she did not attempt to snatch the gun from the hands of her husband on the day of incident. She clearly stated that after firing the gun shot at the chest of the deceased, the accused ran towards jungle side. 34. In the facts and circumstances of the case, the evidence of the defence witnesses is not reliable and acceptable. The evidence of the prosecution witnesses is more reliable, believable and trustworthy than the defence plea of the accused. 35. Now the question falls for our consideration is whether the injury found on the body of the deceased was intended to be inflicted by the accused to bring the case within Clause III of Section 300 IPC. We find it difficult to hold in the circumstances herein set out that such was the intention of the accused. 36. In our opinion, having regard to the totality of circumstances, viz. there was only one injury, there was no premeditation, and that the death occurred nearly after a gap of 1 to 4 hours, we can only say that the accused must be attributed the knowledge that he was likely to cause an injury which is likely to cause death. Under these circumstances, in our opinion, the accused is shown to have committed an offence under Section 304, Part II of the Indian Penal Code and he is accordingly convicted for the same and sentenced to suffer rigorous imprisonment for seven years. 37. Accordingly this appeal is partly allowed and the conviction of the accused is altered from Section 302 IPC to Section 304, Part II IPC and the sentence of life imprisonment is reduced to rigorous imprisonment for seven years. 37. Accordingly this appeal is partly allowed and the conviction of the accused is altered from Section 302 IPC to Section 304, Part II IPC and the sentence of life imprisonment is reduced to rigorous imprisonment for seven years. The order of fine imposed upon the accused and in default of payment of fine as well as the order of payment of the fine, if realized to the widow of the deceased as compensation shall remain intact. The case property shall be dealt with as per the direction of the learned trial Court. 38. We place on record our appreciation to the valuable assistance rendered to us in deciding this appeal by Mr. M.S. Guleria, Amicus Curiae.