DHAN RAJ @ DHAND Vs STATE OF HARYANA
Bench: CHANDRAMAULI KR. PRASAD,PINAKI CHANDRA GHOSE
Case number: Crl.A. No.-001410-001410 / 2010
Diary number: 19920 / 2010
Advocates: R. C. KAUSHIK Vs
SAMIR ALI KHAN
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1410 of 2010
Dhan Raj @ Dhand … Appellant versus
State of Haryana ...Respondent
WITH
CRIMINAL APPEAL NO. 703 of 2011
Badal … Appellant versus
State of Haryana ...Respondent
J U D G M E N T
Pinaki Chandra Ghose, J.
1. These appeals arise from the impugned judgment of the High
Court of Punjab and Haryana wherein vide a common
judgment dated February 26, 2010, the High Court disposed of
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Criminal Appeal No. 496-DB of 1999, Criminal Appeal No. 510-
DB of 1999, Criminal Appeal No. 719-DB of 2009 and Criminal
Revision No. 334 of 2000. The present appeals however arise
out of Criminal Appeal No. 496-DB of 1999 filed by accused
Dhan Raj challenging the judgment of conviction and order of
sentence dated September 25 and 27, 1999 passed by the
Additional Sessions Judge, Jhajjar in Sessions Case No.21 of
21.5.1997/13.08.1998 and Criminal Appeal No. 719-DB of 2009
filed by the State of Haryana against the judgment of acquittal
dated February 18, 2009 passed by the Sessions Judge, Jhajjar
in Session Case No.73 of 21.5.1997/17.3.2008, acquitting the
accused Badal of the charges framed against him.
2. The High Court in the present matters convicted the accused
appellants on the basis of circumstantial evidence by the
impugned judgment. It has been well established by leading
judicial precedents that where the prosecution’s case is based
on circumstantial evidence, only the circumstantial evidence of
the highest order can satisfy the test of proof in a criminal
prosecution. In order to base conviction on circumstantial
evidence the circumstantial evidence put forth by the
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prosecution should establish a complete unbroken chain of
events so that only one inference is drawn out from the same.
If more than one inference can be drawn then the accused
should be entitled to the benefit of doubt.
3. In the present appeals we therefore would evaluate the case of
the prosecution in terms of the evidence brought on record and
the statements and discovery made in the course of
investigation.
4. The case of the prosecution revealed in the first appeal (being
Crl.A. No.1410 of 2010) is that the deceased Vijaypal was
serving a doctor who was posted in the Dispensary of Village
Kheri Jat and residing at Jhajjar. On January 24, 1997 he left for
his dispensary from his home at 9.45 a.m. by a Maruti car
which did not have a registration number. Sukhbir Singh (PW
13), a dispenser posted at Kheri Jat informed Harpal Singh (PW
6), brother of deceased that the dead body of Vijaypal was
found in a field of village Bizidpur where Harpal Singh went
with Sukhbir Singh and found the body in a side posture
bearing injuries from a sharp-edged weapon. There was blood
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on the ground and the Maruti car was found to be missing.
Harpal Singh filed an FIR and investigation was initiated. Post
mortem was also performed. The wife of the deceased
disclosed that the deceased had with him a briefcase and a
wrist-watch when he left home. Co-accused Sanjay, while in
custody of Delhi Police for a different case, made a statement
about the occurrence of this case. Subsequently, his production
warrants were obtained and he was arrested for the present
murder on February 4, 1997. Sanjay in his disclosure statement
states that Dhan Raj and Badal, the appellants herein, were
associated with him in the commission of the crime and that
Dhan Raj had taken away the briefcase and Badal took the
wrist-watch of the deceased. Furthermore, in his statement,
Sanjay disclosed that he had concealed a Kirpan along with his
blood stained clothes near Sadli Road, and he got the same
articles recovered as well. Dhan Raj and Badal were arrested
on February 4, 1997 and recovery of briefcase and wrist-watch
was effected. Subsequently, on completion of investigation, a
challan was presented in the court.
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5. The case of the prosecution in the second appeal is also the
same. However, the accused were tried separately as the
accused Badal was arrested later.
6. After perusing the material brought on record, we would
narrate the facts as they appear to us. However, as the
preliminary facts are the same, for convenience’s sake, they
are narrated from the trial in Criminal Appeal No. 1410 of 2010
and the trial in Criminal Appeal No. 703 of 2011 will be
discussed separately.
6.1 Vijaypal (the deceased herein) was posted as a doctor in the
Kheri Jat village dispensary and he was residing at Jhajjar.
As per the statement of Raj Singh (PW 15), who was the
elder brother of the deceased and stayed in the deceased’s
house, on January 24, 1997 at about 9.45 a.m., Dr. Vijaypal
left his home for the dispensary in his Maruti car, the
registration of which was awaited; that after a few minutes,
the accused Sanajay, Dhan Raj and Badal in a four-wheeler
reached the deceased’s home and inquired about him and
disclosed their names afterwards, whereafter they
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immediately left towards Delhi. Later in the day, Sukhbir
Singh (PW 13) a dispenser posted at Village Kheri Jat,
informed Harpal Singh (PW 6), the younger brother of the
deceased, and the complainant that the dead body of
Vijaypal was found lying in the wheat crop bearing injuries
caused by a sharp edged weapon with blood on the ground
nearby and the car of the deceased was also found to be
missing. On the basis of the statements of Harpal Singh, FIR
No. 26 of 1997 was registered and investigation was initiated
with the conduction of the post-mortem and the recording of
statement of the witnesses by the Investigating Officer.
6.2 The statement of the wife of the deceased being PW 7 which
was corroborated with the statement of Sub-Inspector Brij
Pal (PW-10) revealed that the deceased also had with him a
wrist watch and a briefcase when he had left his home,
which were also missing. On the next day, accused Sanjay
was arrested by the Delhi Police in a case under Section 411
of the Indian Penal Code arising out of FIR No. 32 of 1997
and from him, the car of the deceased (determined after the
engine and chassis-number of the car were tallied) was
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recovered. While in custody of Delhi Police, he made a
statement about the present case on January 25, 1997. In
the said statement, it must be noted that he named one
Rohtas as his accomplice and stated that Rohtas only took
the wrist-watch and the briefcase of the deceased.
6.3 Subsequently, Sanjay’s production warrants were obtained
and he was arrested by the Haryana Police on February 4,
1997 in the present case arising out of FIR No.26 of 1997
and therein he made a disclosure statement averring that
appellants Dhan Raj and Badal were associated with him in
the commission of the crime and that Badal had taken away
the wrist-watch of the deceased and Dhan Raj had taken
away the briefcase. It must be noted that there is a
discrepancy between the two statements of Sanjay.
6.4 Furthermore, Sanjay’s disclosure led to the recovery of a
Kirpan concealed by him and blood-stained clothes, as
specified in the statement. The blood on the Kirpan was
found to be human blood by the Forensic Science
Laboratory, Madhuban. It appears that the accused Dhan Raj
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was also arrested on February 4, 1997 and the recovery of
the briefcase was effected. Accused Badal remained absent
during the trial inspite of issuance of warrant of arrest and
he was declared a proclaimed offender but he was arrested
later and subsequently the recovery of the wrist-watch was
effected. The briefcase and the wrist-watch were duly
identified by Shanti Devi (PW 7) as possessions of the
deceased.
6.5 As per the report of Dr. Rajinder Rai (PW-5), who had
conducted the post-mortem of the deceased’s body, there
were seven injuries found on the body, and, in his opinion,
death was due to shock and haemorrhage as a result of
multiple injuries which were ante mortem in nature and
sufficient to cause death might have been committed by a
Kirpan.
6.6 The investigation was completed and the challan was duly
presented in court. The case was duly committed to the
Court of Sessions vide order dated May 8, 1997 and charge
under Section 302 of the Indian Penal Code was framed
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against Sanjay and under Section 302 read with Section 34
and Section 392 read with Sections 395 and 397 of the
Indian Penal Code, against the two accused wherein they
pleaded not guilty and sought for a trial. At this point, it is
pertinent to mention that the trial of accused Badal was
conducted separately as he was arrested later. In the course
of the trial, twentythree witnesses were examined by the
prosecution to prove its case. The statement of the appellant
Dhan Raj was recorded under Section 313 of the Code of
Criminal Procedure, wherein he has pleaded that he has
been falsely implicated and that the Sub–Inspector has
fabricated a false recovery in collusion with one Rohtas @
Maharaja who was also arrested in the matter. The case of
the prosecution was based on circumstantial evidence and
the trial court after hearing the parties vide judgement dated
September 25, 1999 convicted and sentenced the accused
Sanjay and Dhan Raj ordering imprisonment for life and a
fine of Rs. 2,000/- under Section 302 read with Section 341
of the Indian Penal Code along with rigorous imprisonment
for eight years and a fine of Rs. 1,000/- each under Section
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392 read with Section 397 of the Indian Penal Code and the
sentences to run concurrently. Vide judgment dated
February 18, 2009, the trial court acquitted the accused
Badal.
6.7 As the accused Badal was tried separately and was acquitted
in the trial, we find it pertinent to discuss the same briefly. A
case under Section 302 read with Section 34 and Section
392 read with Sections 395 and 397 was made against
accused Badal and the other co-accused and they were
charge-sheeted by an order dated June 4, 1997. Badal was
arrested (as stated in the order of the Trial Court dated
February 18, 2009) on February 20, 2007 and then his trial
began with the earlier witnesses in the trial of Dhan Raj and
Badal being recalled and recorded against the accused
Badal. He was examined under Section 313 of Cr.P.C.
wherein he pleaded not guilty and claimed that he was
falsely implicated and that he never made any disclosure
statement and no recovery was effected from him.
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6.8 In the said trial, the findings of the court were that the
deceased was murdered in Bizidpur by several knife blows
on his person while on his way to Kheri Jat. That evidence of
PW1 to PW7 recorded in the earlier trial did not amount to
material evidence against the accused. The statement of
Shanti Devi being PW7 regarding the wrist watch of the
deceased that the wrist watch recovered from Badal is the
same that belonged to the deceased as the initials ‘VPS’
were written on the same, does not inspire confidence; there
is no corroboration of that fact and that it does not seem
logical that a person will write something like this on his
wrist watch. Further, it was noted that the prosecution failed
to connect the accused with the recovery of the wrist watch
in view of a decision of the High Court that there was no
sufficient motive. The Trial Court also pointed out that the
case of the prosecution that the deceased was robbed and
killed on the road and his dead body was left on the road
itself, is not supported by any evidence as the dead body
was found in the fields and that the prosecution failed to
answer how the dead body reached there. It was also noted
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that in the Kutcha area where the body was found no foot
prints of the accused were found by the investigating
agency.
6.9 On the basis of the aforementioned findings, the Trial Court
acquitted the accused appellant and concluded that charges
against the accused were not proved beyond reasonable
doubt as the case of the prosecution was highly doubtful and
that PW9 to PW18, who were the material witnesses, did not
give any material and conclusive evidence against the
accused appellant.
6.10Aggrieved by the judgments of the trial court, accused
appellant Dhan Raj filed Criminal Appeal No. 496-DB of 1999
and the State of Haryana filed Criminal Appeal No. 719-DB of
2009 before the High Court of Punjab and Haryana. The High
Court in its impugned judgment held that the case of the
prosecution is based on circumstantial evidence and that in
the backdrop of the existing facts the chain of circumstantial
evidence is complete and the involvement of the accused in
robbery and commission of murder and robbery is
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established. Thus, the High Court upheld the conviction of
the appellant accused Dhan Raj and convicted the appellant
Badal on same grounds as those of Dhan Raj and Sanjay.
6.11Aggrieved, the appellants Dhan Raj and Badal filed the
present appeals and the matter came before us.
7. The High Court convicted the accused appellants and Sanjay
the other co-accused on the basis of circumstantial evidence.
However, we will confine ourselves only to the circumstantial
evidence produced against the accused appellants. The High
Court relied firstly, on the statement of the wife of the
deceased Shanti Devi (PW7) wherein she stated that the
deceased wore a HMT wrist watch gifted to him at the time of
his marriage by her parents and was carrying a briefcase with
the sticker of the initials ‘VPS’ when he left his house on
January 24, 1997 and that the same were missing when the
body of the deceased was found in the fields. Secondly,
reliance was placed on the statement of the Raj Singh (PW-15),
the brother of the deceased, wherein he has stated that when
he was visiting his brother the deceased on January 24, 1997
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after the deceased had left the three accused came to the
deceased’s house and enquired about him after disclosing their
names. Thirdly, the High Court relied on disclosure statement
of the co-accused Sanjay on the basis of which the blood
stained clothes and the Kirpan were recovered and he had
stated that Dhan Raj had taken away the briefcase and the
wrist watch was taken away by Badal. Fourthly, the High
Court greatly relied on the two disclosure statements of the
accused-appellants on the basis of which the recovery of the
briefcase and wrist watch was made.
8. It was also noted by the High Court that the blood on the
Kirpan was human blood and that injuries inflicted on the
deceased might be caused by a Kirpan as per the opinion of the
Doctor. While commenting on the completeness of the
circumstantial evidence it was further noted that the
truthfulness of the testimony of Sanjay was proved on the basis
of the recovery of the car. Furthermore, it was noted that the
fact that the deceased was carrying a briefcase and a wrist
watch has been proved with the statement of Shanti Devi.
Thus, on the basis of the above, the disclosure statements of
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the accused appellant and the disclosure statement of co-
accused Sanjay were treated as clinching evidence proving
their involvement by the High Court.
9. In order to discuss the correctness of the order of conviction,
we now proceed by considering the four grounds on which the
High Court relied. We would first discuss the reliance placed on
the evidence given by the co-accused Sanjay. The co-accused
Sanjay in the course of investigation by his confessional
statement being an extra-judicial confession dated February 4,
1997 named the accused appellants as his accomplices in the
murder and robbery and stated that Dhan Raj and Badal took
the briefcase and wrist watch of the deceased respectively.
However, in an earlier confessional statement dated January
25, 1997 made in the investigation in FIR No. 32 of 1997,
Sanjay has named Rohtas as his accomplice and stated that he
only took the wrist watch and the brief case and from the same
confession the car of the deceased was recovered. From the
later confession, the Kirpan and blood stained clothes were
recovered.
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10. It is well established that extra-judicial confession has been
treated by this Court as weak evidence in the absence of a
chain of cogent circumstances, for recording a conviction (See:
Gopal Sah vs. State of Bihar1, and Pancho vs. State of
Haryana2). It was held in Sahadevan and Anr. vs. State of Tamil
Nadu3 that if an extra judicial confession suffers from material
discrepancies or inherent improbabilities then this Court cannot
base a conviction on the same. In the present case, there is an
apparent discrepancy in the confession statement of Sanjay
and the same is a glaring one as he has named different
accomplices in the same crime in his two confessional
statements. Furthermore, Sanjay’s confessional statements
only connect him to the car and the Kirpan, his statement that
the accused appellants took the wrist watch and the briefcase
in the absence of other evidence except the recovery of the
same does not establish that anything beyond the fact that
they may possess stolen goods. In no manner does the later
statement of the co-accused supports that the accused
appellants were involved in the commission of murder. In the 1 (2008) 17 SCC 128 2 (2011) 10 SCC 165 3 (2012) 6 SCC 403
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case of Pancho vs. State of Haryana (supra) this Court did not
convict the accused Pancho on the basis of the confession
statement of the co-accused in the absence of other cogent
evidence, inspite of the belated recovery of the alleged weapon
of murder.
11. In view of the above, we are of the opinion that reliance on
the extra-judicial confession of the co-accused is misplaced.
12. Owing to the later confessional statement of co-accused
Sanjay, the accused appellants were arrested and subsequently
on the basis of the disclosure statements of the accused
appellants and corroboration by Shanti Devi (PW 7), wrist-
watch and the briefcase were recovered. Owing to the
interdependence of the above evidence, we will discuss the
same together. The prosecution relied on the disclosure
statements of the accused appellants, the subsequent recovery
of the briefcase and wrist watch on the basis of the same and
the statement of Shanti Devi corroborating that the recovered
wrist watch and briefcase belonged to the deceased. After
considering the evidence on record, we find that no proper
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recovery has been made in the present case. The objects which
were recovered were two common articles, not holding much
value and it does not seem rational that any accused would
keep such incriminating items connecting themselves to a
crime with them in their house. Regarding the recovery of the
wrist watch from Badal and its identification by Shanti Devi
PW7, we concur with the opinion of the Trial Court. The
relevant extract of the judgment of the trial court is reproduced
hereunder:
“She further stated that she saw the wristwatch Ex.P2 in the Police Station on 13.4.1997 and she identified the watch because alphabets VPS were written on the watch. This statement of PW7 does not inspire confidence because it does not appeal to the common sense that the wrist watch which was allegedly purchased in the year 1971 at the time of marriage of the deceased, could not carry the writing of alphabets VPS thereon uptil 1997. Otherwise also, it does not appeal to the common sense that a person would write any word on the wrist watch to connect him in this fashion. If these alphabets would have actually been written on the wrist watch, the complainant would have also mentioned this fact in the FIR because complainant was none else but the real brother of the deceased”
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Furthermore, it appears to us that the recovery has not been
corroborated by any proper independent evidence. Moreover,
recovery of an object is not a discovery of fact, as per the decision
of this Court in Mano vs. State of Tamil Nadu4. Recovery must be
of a fact which was relevant to connect it with the commission of
crime. Therefore, even if the recovery of goods is reliable then it
does not indicate that the accused appellants committed the
murder and the only admissible fact which can be inferred is that
they are in possession of stolen goods.
13. We would refer to the decision of this Court in Madhu vs.
State of Kerala5 the facts of which are relevant in the present
case. In the said case, the body of the deceased was found
near her home with her ornaments on her person missing. On
the basis of the information furnished by the accused recovery
of the said ornaments was made. This fact coupled with the
sighting of the accused near the place of crime was the basis
for conviction. However, this Court reversed the conviction on
the ground that said recovery and sighting of the accused near 4 (2007) 13 SCC 795 5 (2012) 2 SCC 399
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the deceased do not lead to the sole conclusion that murder
was committed by the accused only. In State of Rajasthan vs.
Talevar and Anr.6 also it was held that where the only
evidence against the accused is recovery of stolen property,
then although circumstances may indicate that theft and
murder might have been committed at the same time, it is not
safe to draw an inference that the person in possession of
stolen property had committed murder. Also the recovery of
looted articles at the instance of the accused could not be
relied upon in absence of any details as to when and where
such recovery was made and in absence of any confession of
commission of offence by the accused. Besides, the seizure of
the goods was not corroborated by any independent witness in
the present case.
14. The abovementioned circumstantial evidence was supported
with the statement of Raj Singh (PW-15), that when he was
visiting his brother the deceased on January 24, 1997 after the
deceased had left, the three accused came to the deceased’s
house and enquired about him after disclosing their names.
6 (2011) 11 SCC 666
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Before discussing the admissibility of the said statement, we
would refer to the landmark decision of this Court in Sharad
Birdichand Sarda vs. State of Maharashtra7 regarding
circumstantial evidence, where this Court held regarding the
question of the accused last seen with the deceased held that
where it is natural for the deceased to be with the accused at
the material time, other possibilities must be excluded before
an adverse inference can be drawn. It is evident from the
above that this Court refrains from drawing adverse inferences
in a factual matrix which points out toward the guilt of the
accused. Thus, we will consider the statement of Raj Singh also
in the same light. As per the statement of Raj Singh, the three
accused had come asking for the deceased but in the absence
of other corroborating evidence and independent evidence, it is
not established that the accused appellants had abetted the
co-accused Sanjay in the commission of the crime. Also it can
be the defence’s case that the said statement has been added
as an afterthought to strengthen the case of the prosecution.
We have found no material on record which corroborated the
statement of Raj Singh who is an interested witness. 7 (1984) 4 SCC 116
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Furthermore, there is no other evidence which indicates or
established the presence of the accused appellants near the
place of commission of crime. Also, as noted by the Trial Court
in the trial of Badal, no footprints were found in the surrounding
Kutcha area where the body of the deceased was found.
15. We have noticed in the case of Madhu vs. State of Kerala
(supra) facts of which were discussed earlier, that this Court
inspite of the factum that the accused were sighted close to
the place of occurrence at around the time of occurrence
reversed the conviction as guilt was not established. In the
present factual matrix, it is only an interested witness stating
that the accused had come asking for the deceased. This
factum alone does not establish guilt as no other evidence is
found that they were near the Bizdipur area where the crime
was committed or had visited the house of the deceased. For
establishing the guilt on the basis of circumstantial evidence, it
is also to be taken into account that the chain of circumstantial
evidence must be completed. It appears from the facts that the
said chain of circumstantial evidence cannot be concluded in
the manner sought to be done by the prosecution. The
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circumstances must be conclusive in nature. In the instant
case, after analysing the facts, it appears to us that there is a
gap between the circumstances tried to be relied upon to hold
the appellants as guilty.
16. Thus, we find many loopholes in the case of the prosecution
and grounds on which the High Court has convicted the
accused appellants. We would refer to the decision of this Court
in Munish Mubar v. State of Haryana8 wherein Dr. Justice
Chauhan has very aptly and succinctly stated the following:
“The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused.”
A court has to examine the entire evidence in its entirety
especially in case of circumstantial evidence and ensure that the
8 (2012) 10 SCC 464
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only inference drawn from the evidence is the guilt of the
accused. If more than one inference can be drawn then the
accused must have the benefit of doubt as it is not the court’s job
to assume and only when guilt beyond reasonable doubt is
proved then it is fair to record conviction.
17. In case of circumstantial evidence, each circumstance must
be proved beyond reasonable doubt by independent evidence,
and the circumstances so proved must form a complete chain
without giving any chance of surmise or conjecture and must
also be consistent with the guilt of the accused. None of the
circumstances relied upon by the prosecution and accepted by
the High Court can be said to be the probability of the
appellants’ guilt or involvement in the commission of the crime.
18. Therefore, for the reasons recorded hereinabove, the
judgment and order of the High Court is set aside; the appeals
are allowed and the accused are acquitted forthwith. The
appellant in Criminal Appeal No.703/2011 is already out on bail
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granted by this Court; the appellant in Criminal Appeal
No.1410/2010 is directed to be set at liberty forthwith, if not
required in any other case.
…………………………………..J. (Chandramauli Kr.
Prasad)
…………………………………..J. (Pinaki Chandra Ghose)
New Delhi; May 9, 2014.
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