Patna High Court
Gul Mohammad @ Gul Mohammad Nut And Anr vs State Of Bihar on 10 September, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.350 of 2004
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1. Gul Mohammad @ Gul Mohammad Nut,
2. Bhuwal Nut @Bhual Nut, Both are sons of Dilyar Nut @Diljar Nut,
Resident of Vill- Pachbama, Police Statoion- Andar, District- Siwan
... ... Appellant/s
Versus
State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Ms. Mariya Nazir, Amicus Curie
For the Respondent/s : Mrs. Anita Kumari Singh, APP
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CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date : 10-09-2025
1. This criminal appeal is arising out of
the judgment of conviction and order of sentence
dated 13.05.2004 passed by the Additional
Sessions Judge No. V Siwan, in Sessions Trial No.
240 of 2003 arising out of Ander P.S. Case No. 02
of 2002, whereby and whereunder the appellants
were convicted for the offences punishable under
Section 394 r/w Section 34 of the Indian Penal
Code (hereinafter referred as IPC) and they were
sentenced to undergo rigorous imprisonment for
ten years with a fine of Rs. 2000/- each, and in
default of payment of fine, to undergo simple
imprisonment of four months.
2. The case of the prosecution, as per
Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025
2/28
the fardbeyan of one Rabindra Baitha, recorded on
10.01.2002at 06:15 AM, was that on the night of 09.01.2002, at about 10:30 PM, he heard the cries of his cousin Gajadhar Baitha from his bathan. On his alarm, he along with the wife of Gajadhar Baitha and others, rushed to the place and saw four persons coming out of the bathan. Among them, the informant/Ravindra Baitha/P.W.3 identified both the appellants holding Chhura in their hands, while the two other persons (unknown) holding sticks. All four accused persons fled away from the said place. When P.W. 3 and others entered inside, they saw Ram Umar Baitha stained with blood and crying. On enquiry, Ram Umar narrated that three or four persons suddenly broke the door, rushed inside, and started looting a box and other articles. When Ram Umar tried to resist, they started assaulting him with chhura near his eyes and stomach, due to which he fell down and later became unconscious. The contents of the fardbeyan further disclose that Ram Umar (hereinafter called as deceased) was brought Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 3/28 to the hospital at about 05:00 A.M. on 10.01.2002, where the doctor declared him as brought dead. In the said hospital, the statements of P.W. 3 (informant), P.W. 4 (mother of the deceased), P.W. 2 (wife of the deceased), and the brother of the deceased/ Gajadhar Baitha, were recorded. The fardbeyan further discloses that the deceased had no enmity with anyone.
3. Basing on the fardbeyan of the informant/ P.W.3 dated 10.01.2002, a case was registered against the appellants and two unknown persons, in connection with Ander Police Station Case No. 02 of 2002, for the offences punishable under Sections 393, 302 r/w 34 of IPC. After investigation, the police submitted a charge-sheet against the appellants and shown the unknown persons as absconding. On 29.07.2003, the trial Court framed charges against both the appellants for the offences punishable under Sections 393, 307 and 302 of IPC. The charges were read over and explained to the appellants in Hindi, for which the appellants pleaded not guilty and claimed to Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 4/28 be tried.
4. The record further reveals that a charge under Section 394 r/w 34 of IPC was also framed against the appellants on 23.04.2004 after recording the evidence of P.W.2. The charges were read over and explained to the appellants for which, they further pleaded not guilty and claimed to be tried.
5. During the course of trial, the prosecution has examined altogether four witnesses, i.e., P.Ws. 1 to 4, and marked two Exhibits i.e., Ext. 1 and 2. The names and details of Prosecution witnesses and list of exhibits are as follows:-
P.Ws P.Ws. names Relation/designation P.W. 1 Deonath Singh Advocate Clerk P.W. 2 Shanti Devi Wife of the deceased P.W. 3 Rabindra Baitha Uncle of the deceased P.W. 4 Samundari Devi Mother of the deceased Sl. No. Exhibit Exhibit Details
1. Ext. 1 Fardbeyan dated 10.01.2002
2. Ext. 2 Signature of P.W. 3 on fardbeyan Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 5/28
6. After considering the entire material on record, the trial Court convicted the appellants for the offences punishable under Section 394 r/w Section 34 of the IPC.
7. The points for determination in this appeal are :-
(i) Whether the prosecution is able to prove the guilt of the appellants for the offences punishable under Section 394 r/w 34 of IPC beyond reasonable doubt?
(ii) Whether the trial Court has rightly convicted and sentenced the appellants for the aforesaid offences?
8. In order to decide the aforesaid points for determination, it is just necessary to re- appreciate the evidence on record.
9. As none appeared for the appellants, this Court was constrained to appoint Amicus Curiae, Ms. Mariya Nazir vide order dated 11.09.2024.
10. Heard Ms. Mariya Nazir, the Learned Amicus Curiae on behalf of appellants as well as Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 6/28 Mrs. Anita Kumari Singh, the Learned Additional Public Prosecutor for the State and perused the record.
11. P.W. 1 is an advocate clerk. His evidence disclose that he knew one B.K. Yadav, Sub-Inspector of Police at Siwan, in whose handwriting the fardbeyan was written and it bears the signature of the said Sub-Inspector. The fardbeyan got marked as Exhibit-1. In cross- examination, he specifically admitted that he has been working as an advocate's clerk, for thirty-five years, and that he has no knowledge as to who drafted the fardbeyan. He also stated that the said fardbeyan was not written in his presence.
12. On perusal of evidence of P.W. 1, it can be construed that he had no knowledge about the crime or about the contents of the fardbeyan.
13. It is pertinent to mention that followings are criteria for marking a document:-
In order to have a documents marked by the Court as an Exhibit, a party must satisfy the Court that there is sufficient Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 7/28 material in order for the Court to arrive at a prima facie view that:-
"It is evident that in order to have the documents marked by the Court as Exhibits, a party must satisfy the Court that there is sufficient material in order for the Court to arrive at a prima facie view that :
(a) The "contents" of the document are proved (i.e. the document exists).
(b) The signature or handwriting on the document, if any, are proved (i.e. the document is genuine).
(c) In some cases, the witness who seeks to tender the document in evidence has personal knowledge of the document (i.e. that the witness is in a position to prove the accuracy or truth of the contents of the document);
(d) The document is not inherently or ab initio inadmissible on some other legal ground (e.g. irrelevance, privilege, non- registration) and,
(e) The document has been Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 8/28 appropriately stamped, if so required by law.
14. (i). In order to prove contents of a document, the witness through whom the document is sought to be tendered must produce the document in court. The Evidence Act provides, in essence, that the "contents" of documents must ordinarily be proved by "primary" evidence.
(ii). As the second step in getting a document marked, the witness who introduces the document must identify the signature or handwriting on the document, if there is any. 19 The mere production of a document is not sufficient for the document to be marked as an exhibit.
(iii). Thirdly, in order to lay a foundation for marking a document, if the document contains any statement(s) of fact, and the party propounding the document relies on the truth or accuracy of those statements, then the witness. who tenders the document must demonstrate personal knowledge and the familiarity of the document.
(iv). Fourthly, in some cases, irrespective of a party's ability to satisfy the criteria set out above, a law might prohibit some documents from being considered admissible in evidence. Such documents cannot be marked in evidence. Once a document is marked, it becomes the part of the Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 9/28 record but has to be considered by the Court about its admissibility and relevancy of the such document. Marking of document alone will not give any right to read the contents of the documents or about the admissibility of the documents."
15. Furthermore, Rule 58 of the Criminal Rules Of Practice and Circular Orders, 1990 envisages about marking of exhibits which reads as follows:-
"58 Marking of exhibits:-
(1) Exhibits admitted in evidence shall be marked as follows:-
(i) if filed by the
prosecution with the capital
letter 'P' followed by a numeral, P1, P2,P3 and the like;
(ii) if filed by defence
with the capital letter 'D'
followed by a numeral, D1, D2,
D3 and the like;
(iii) in case of Court
exhibits with the capital letter 'C' followed by a numeral C1, C2, C3 and the like;
(2) All the exhibits filed by the several accused shall be marked consecutively.
Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 10/28 All material objects shall be marked in Arabic numbers in continuous series as M.O. 1, M.O.2 and M.O.3 and the like, whether exhibited by the prosecution or the defence or the Court."
16. This Court is unable to understand as to why the trial Court has not followed the procedure, while marking the Exhibits as per Rule 58 of Criminal Rules of Practice. Admittedly, the documents was said to be marked as Ext. 1 through P.W. 1.
17. At this juncture, it is relevant to rely on the judgments of Hon'ble Division Bench of this Court in the case of Sukhi Yadav v. The State of Bihar reported in 2014 SCC OnLine Pat 5721 wherein their Lordships have held as follows:-
"9. We fail to appreciate as to which law permits such a thing and how a Judge of standing of Additional Sessions Judge could do such a thing. First thing we must notice that P.W.9 is an Assistant to an Advocate Clerk, who has nothing to do with the Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 11/28 case, yet the Court permits him to step in as a prosecution witness.
Moreover we have coined such witness as "Sankat Mochan witness". What more scandalized us is the trial court, which permits a person, who was nobody, to pick up the entire case diary from paragraphs 1 to 121 and prove it and make it a part of evidence. The court then proceeds further to mark it as Ext. 3 and then the court sits down to read entire case-diary in order to appreciate evidence. Nothing can be more scandalous. No such step is permissible in law. The trial court forgot the true import of section 172(2) of the Code of Criminal Procedure (for short 'Cr.P.C.'), which clearly states that any criminal Court may use such diaries, not as evidence in the case, but to aid it in such enquiry or trial. What the trial court has done is using it as evidence, making it as evidence and appreciating it as evidence, which is wholly impermissible in law. The Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 12/28 diary can never be proved in a Court, for it cannot be used as evidence. No part of diary can be proved because if any one is proving it for the purposes of making it an evidence, such act is prohibited by law. The law contemplates a reference to the diary only for the purposes of refreshing memory or contradicting the statements of witnesses in the Court with the statements made during the course of investigation. Only when it is used for refreshing memory, the procedure as envisaged under section 145 of the Evidence Act is to apply but that does not mean that diary can become evidence. Law prohibits such thing. We have found in cases after cases that in the State of Bihar, the Sessions Courts do not know or understand this distinction in law and in cases after cases the statements of witnesses recorded under section 161 of the Cr.P.C. are proved as evidences or other materials in the case-diary are proved as evidence Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 13/28 and marked as exhibits. This is a practice that should end, the sooner the better. The other thing is that as to who is permitted to prove a document. It appears that in this State every Tom, Dick and Harry, the expression we have formed now "Sankat Mochan Witness", could come and prove any official document. In this case, an Assistant to Clerk of an Advocate, who has nothing to do in the case, has been permitted by the trial court to prove the entire case-diary and mark it as exhibit. This practice is deprecated and it must come to an end. A person, who is author of a document or in absence of author, which absence has to be explained, a person familiar with the handwriting of the author can only prove the document. The procedure adopted by the trial court is unknown to law. No sooner this practice ends than better it would be."
18. The above citation squarely applies to the facts of the present case. Their Lordships have held that a person who is author of the Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 14/28 document, or in absence of the author, (whose absence has to be explained), a person familiar with the hand-writing of author can prove the documents. Their Lordships have further held that the procedures adopted by the trial Court are unknown to law, and such practices have to be ended.
19. In the present case, P.W. 1 has no knowledge either about the crime, or about the contents of the fardbeyan, or about the case registered at the police station on the basis of the fardbeyan. Therefore, the evidence of P.W. 1 cannot be taken into consideration to prove the contents of the fardbeyan.
20. P.W. 2/ Shanti Devi (wife of the deceased) is the crucial witness, as the trial Court has convicted the appellants on the basis of her evidence. The Exhibit 1, i.e., fardbeyan, does not disclose the presence of P.W. 2 at the place of occurrence. Further, P.W. 3/informant, also did not state about the presence of the P.W. 2 in his evidence. The evidence of P.W. 2 disclose that on Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 15/28 the date and time of the incident, people were untying the cattle and someone killed her husband, and she could not say who killed her husband. She further testified that at about 10:30 PM, four dacoits entered their house, two of them were holding chhura, light and sticks. While entering the house, they took a ataichi, but she could not identify which one of them took the ataichi. When the villagers gathered, the said four persons fled away. Her husband (deceased) objected one of the persons, who was about to take away the articles, and on that the said person assaulted him with a chhura. In the conversation among the unknown persons, she heard the names of Noor Mohammad Nut and Bhual Nut. During the incident, her ears got cut, and she could not say with certainly whether their names were Lal Mohammad or Noor or Bhuar. She further deposed that although her in-laws were in house, they could not do anything. Thereafter, taking advantage of darkness, the dacoits fled away. Her evidence further disclose that the appellants were the Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 16/28 residents of Panchbarwa village, which is adjacent to her village. P.W. 2 further testified that though the appellants were in dock, she could not say who assaulted her husband with chhura.
21. In the cross-examination, P.W. 2 specifically deposed that her statement was recorded after two days of occurrence, which contradicts the contents of the fardbeyan. As per the fardbeyan, the statements of P.Ws. 2 to 4 as well as father of the deceased were recorded at the Sadar Hospital. However, P.W. 2 specifically testified that her statement was recorded at the house, whereas the statements of her in-laws were recorded at police station. This aspect also contradicts with the contents of the fardbeyan. She further stated that she was in the bathan while her in-laws were in another room and, after the incident, she became unconscious. She also admitted in the cross examination that it was a dark night and that, taking advantage of the darkness, the dacoits fled away as the courtyard was open from all sides.
Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 17/28
22. As per evidence of P.W. 2, the incident took place in bathan; whereas on the other hand, the evidence disclose that the incident took place at her house. If at all the incident took place at bathan, the question of having an attaichi in bathan would not arise. If the incident occurred in the house, her evidence that she was in the bathan at the time of the incident, cannot be relied upon. Thus, the evidence of P.W. 2 is self- contradictory with regard to the place of occurrence. She herself admitted in her evidence that it was a dark night, and testimony nowhere disclose that the appellants were known to her, so as to enable her to identify them in the darkness. It is also significant that the evidence of P.W. 2 clearly disclose that the appellants were not holding chhura in their hands, and that it was an unknown person holding the chhura, who assaulted her husband. She never testified that her ears were cut in the hands of appellants. Therefore, the credibility of this witness and the reliability of her evidence are doubtful.
Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 18/28
23. P.W. 3 (informant) and P.W. 4 (mother of the deceased) have turned hostile. P.W. 3, in his examination-in-chief, testified that four persons entered the house, two of whom were holding knives and two were holding sticks. Though P.W. 3 is not the eye witness to the incident, he testified that the deceased fought with four persons when they were about to commit loot, in the house and one of the accused assaulted the deceased. In the cross-examination by the Learned Public Prosecutor, P.W. 3 denied the suggestion that an alarm was raised by Gajadhar Baitha at bathan where he found the parents of the deceased and other villagers and also four accused coming out of bathan. He also denied the suggestion that he had identified the appellants, and they were holding chhura, as well as about the narration made by his nephew to him.
24. Likewise, the evidence of P.W. 4, also disclose that on hue and cry, she rushed to the bathan but did not see anything. She also denied the suggestion made by the Learned Public Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 19/28 Prosecutor that she had seen the appellants along with one Munna Nut and Lal Mohammad Nut assaulting the deceased/Ramumar Baitha. She specifically testified that the dacoits were not in the dock and she could not identify them.
25. The contents of the fardbeyan (Ext.
1), were not confronted with P.W. 3, who is alleged to be its author. However, the signature of P.W. 3 on the fardbeyan got marked as Ext. 2. The Investigating Officer and the doctor were also not examined. The crucial documents such as the FIR, scene observation report, and postmortem report were not marked as exhibits in this case.
26. On perusal of the entire record, it is evident that the charges were not properly framed against the appellants. As per the case of prosecution, it is a homicide, in view of the death of the deceased, and the entire allegations are that a robbery was committed by four persons and in the course of the said act, deceased was stabbed by one of the dacoits. However, the contents of the fardbeyan and the evidence of P.Ws. 2 to 4, clearly Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 20/28 disclose that neither the appellants nor the unknown persons committed any robbery. Evidence of prosecution witnesses disclose that during the course of attempt to commit robbery, the unknown persons assaulted the deceased as well as P.W. 2. No proper charge was framed against the appellants or unknown persons for assaulting P.W. 2 and the weapons were also not recovered in this case.
27. Section 393 of the IPC reads as follows:-
393. Attempt to commit robbery.- Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
28. The prosecution has miserably failed to prove the guilt of the appellants for the offences punishable under Sections 302, 307 and 393 of the IPC, although the charges were framed for the said sections.
Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 21/28
29. The trial Court has acquitted the appellants for the offence under Sections 393, 302 and 307 of IPC. However, the trial Court has convicted them under Section 394 r/w 34 of the IPC. Section 394 of IPC reads as follows:-
394. Voluntarily causing hurt in committing robbery.- If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
30. There is no evidence on record to show that that the appellants either committed robbery or made an attempt to commit robbery and, in the course of such act, they voluntarily caused hurt to any person. It is not the case of P.W. 2 that the appellants have cut her ears. Likewise, it Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 22/28 is not the case of P.Ws. 2 and 3 that the appellants hacked/stabbed the deceased with chhura near his eyes or on stomach. The findings recorded in the impugned judgment are completely contradictory to the evidence available on record. Furthermore, the incident took place in the dark night.
31. The Learned Amicus Curiae has relied on the judgment of the Hon'ble Apex Court in Shankar Lal Yadav v. State of M.P., reported in 1994 SCC (Cri) 1409 wherein, it is held from the judgment that, "it is clear that it was pitch dark and, therefore, the identification of the accused becomes doubtful. However, in view of recovery affected the conviction of appellants under Section 411 of IPC cannot be disturbed". In the present case, there is no recovery of article from the appellants.
32. The above citation squarely applies to the facts and circumstances of the present case, as none of the witnesses have identified the appellants as the persons who committed the robbery on the date of the incident. Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 23/28
33. Likewise, the Learned counsel for the appellants also relied on the judgment of the Hon'ble Apex court in case of Inspector of Police, T.N. v. Palanisamy @Selvan, reported in (2008) 14 SCC 495 wherein their Lordships at para-5 have held as follows:
5. We find that the High Court has analysed the evidence in great detail and we find that the evidence of PWs 1 and 2 is not truthful so far as the identification aspect is concerned. Undisputedly it was a dark night. They claimed to have identified them from their voice. Though such identification in some cases is possible, in the instant case no evidence was adduced to show that the witnesses were closely acquainted with the accused to even identify him from his voice, that too from very short replies, purported to have been given. This fact was lost sight of by the trial court. The High Court found the possibility of identification as claimed by PWs 1 and 2 an impossibility.
Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 24/28
34. In the present case also, the evidence of P.W. 2 is that she had heard the names of the appellants during the conversation of the dacoits but did not identify their voices, and her evidence nowhere disclose about any intimacy with the appellants. Her evidence further disclose that the appellants were not residents of her village. The said fact was not considered by the trial Court. The record reveals that the Test Identification Parade of the appellants during the course of investigating was also not conducted by the police.
35. One more crucial aspect to be discussed in this case, is about addition of charge by the trial Court on a subsequent date, that too after examination of P.W. 2. The charge under Section 394 r/w Section 34 of IPC was added on 23.04.2004, after recording the evidence of P.W. 2. Once the charge is altered, it is the incumbent duty of the trial Court to follow the due procedure under Section 216 of the Cr.P.C.
Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 25/28
36. Section 216 of Cr.P.C. reads as follows:
216. Court may alter charge.- (1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 26/28 may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained.
37. The record further reveals that no petition was filed by the prosecution to recall and re-examine P.W. 2, who is said to be the crucial witness in this case. The procedure as contemplated under Section 216 of Cr.P.C, clearly disclose that in case of any alteration or addition of charge which may prejudice the case of the accused, the Court may direct a new trial or adjourn the trial for such period, and an opportunity has to be given to the defence to prove the innocence. Section 217 Cr.P.C. also makes it clear that whenever the charge is added or altered after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon and examine witnesses with reference to such addition or alteration of charge. Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 27/28 The trial Court failed to adhere to this mandatory process for the reasons best known to it. The prosecution has miserably failed to prove that the appellants have committed the offence under Section 394 r/w 34 of IPC. In the absence of evidence, the trial Court cannot convict the appellants basing on assumptions or presumptions.
38. In view of the aforesaid discussion, this Court is of the considerable view that the trial Court erred in convicting the appellants for the offence punishable under Sections 394 r/w 34 of IPC and as such the judgment of trial Court is liable to be set aside.
39. Accordingly, the judgment of conviction and order of sentence dated 13.05.2004 passed by the Additional Sessions Judge No. 5 Siwan, in Sessions Trial No. 240 of 2003 arising out of Ander P.S. Case No. 02 of 2002, is hereby set aside, and both the appellants are acquitted for the aforesaid offences.
40. In result, the appeal is allowed.
41. The record reveals that the Patna High Court CR. APP (SJ) No.350 of 2004 dt.10-09-2025 28/28 appellants were released on bail by this Court vide order dated 17.12.2004. Hence, the bail bonds of the appellants shall stand cancelled.
(G. Anupama Chakravarthy, J) AMANDEEP/-
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