$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 24.08.2026 Pronounced on: 15.09.2026 Uploaded on: 15.09.2026 # CNR No. DLHC010510902005 + CRL.A. 45/2005 NARENDER .....Appellant Through: Mr. Javed Hashmi, Mr. Shahnawaz Malik, Ms. Sheetal Mishra and Mr. Parul Gurudev, Advocates. versus STATE .....Respondent Through: Mr. Aman Usman, APP for the State with Mr. Manvendra Yadav, Advocate and Insp. Sachin Yadav, PS Gulabhi Bagh. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA HON'BLE MR. JUSTICE RAVINDER DUDEJA J U D G M E N T RAVINDER DUDEJA, J. 1. Vide this appeal, the appellant/accused has taken exception to the Judgment of conviction dated 18th December, 2004 and the Order on Sentence dated 21st December, 2004, passed by the learned Additional Sessions Judge [“Trial Court”] in Sessions Case No. 51/2003, arising out of FIR No. 69/2003, registered under Section 302 of the Indian Penal Code, 1860 [for short “IPC”], PS Pratap Nagar. Factual Matrix 2. The prosecution case, as per the charge sheet, is that on 16th May, 2003, PW-23 Dinesh Singh, son of the coach of Kishan Ganj akhara, came at Police Post, Andha Mughal and informed the police that a wrestler named Sandeep, had died due to injury caused by scissor. Such information was reduced into writing vide DD No. 25 (Ex. PW-2/A) at 6:15 PM. On receipt of Ex. PW-2/A, SI Joginder Singh (PW-24) along with Constable Azad Singh (PW-6) reached at Railway Akhara Kishan Ganj, where, they found the dead body of Sandeep, lying on a cot in a room, located in the akhara with an incise wound on his chest near the heart. 3. SI Joginder Singh (PW-24) recorded the statement of complainant Naveen (PW-8) at the spot, wherein, he stated that on 16th May, 2003 at about 2:00 PM, he along with Neeraj (PW-3), Sandeep (deceased) and Narender (appellant) were sitting together in a room in the akhara. In the morning, he (PW-8) and Neeraj had shaved their heads. Seeing them, Sandeep asked Narender to get his head shaved off, but Narender refused. Sandeep then brought a scissor and started cutting the hair of Narender. Narender caught the right hand of Sandeep and tried to snatch the scissor. Naveen (PW-8) and Neeraj (PW-3) cautioned Narender not to twist the hand of Sandeep in such a dangerous manner, lest Sandeep would suffer injury, but Narender did not loosen the grip, and in the process, the scissor struck on the chest of Sandeep near his heart and he became unconscious. He was removed to Malik Nursing Home. Since his condition was serious, Dr. V.K. Malik (PW-13) advised that Sandeep be shifted to a bigger hospital for treatment. Sandeep was then shifted to ESI Hospital, where, the doctor declared him “dead”, following which, his body was brought back to the akhara. 4. PW-24 made an endorsement on the statement of PW-8 and sent the rukka to the police station through Constable Raj Singh (PW-2) for registration of the FIR. The FIR was initially registered under Section 304 IPC. 5. During investigation of the case, the Crime Team and Photographer were summoned to the spot. The scene of occurrence was inspected and photographs were taken. The weapon of offence, that is, scissor, was recovered from the spot, its sketch (PW-6/A) was prepared and the scissor was taken into possession vide memo Ex. PW-6/B. The site plan of the place of occurrence (Ex. PW-22/A) was prepared by PW-22 Sh. Tirath Raj Singh at the request of the IO. The pieces of cut hair of Narender found at the spot were also lifted and seized vide memo Ex. PW-6/C. Inquest documents were prepared and the body of Sandeep was sent for post-mortem at Subzi Mandi Mortuary. 6. During investigation, the post-mortem of the victim was conducted on 17th May, 2003 by PW-19 Dr. Akash Jhanjee, who prepared the post-mortem report Ex. PW-19/A. The scissor was produced before the doctor for his opinion. PW-19 gave the opinion that injury No. 8 could have been caused by the said weapon and that such injury was neither accidental nor self-inflicted. Pursuant to such opinion, Section 304 IPC was replaced by Section 302 IPC. 7. During investigation, the Investigating Officer [“IO”] recorded the statements of witnesses. Supplementary statement of PW-8 was also recorded on 05th August, 2003, wherein, he took a somersault, by stating that on 16th May, 2003, he and Neeraj had shaven off their heads, and at about 12:30 PM, he along with Neeraj, Narender and two other wrestlers, went to the room of Sandeep and asked him to cut off his hair, but he refused, saying that there was a marriage in his family. Neeraj then tried to cut the hair of Sandeep, but was stopped by him. He further stated that he asked everybody not to cut the hair of Sandeep, and when they started walking out of the room, Narender snatched the scissor from Neeraj, saying that he would see how Sandeep can stop him from getting his hair cut. When Narender tried to cut the hair of Sandeep, he gave him a slap. In response, Narender gave 1-2 slaps to Sandeep. A scuffle took place between both of them. He further stated that they separated them and while they were leaving the room, out of anger, Narender exhorted that he would teach Sandeep a lesson for slapping him and then picked up the scissor and struck on the chest of Sandeep, due to which, he immediately sat on the cot and was thereafter rushed to Malik Nursing Home in an auto. 8. Appellant/accused was arrested. Upon completion of investigation, charge sheet was filed under Section 302 IPC against the appellant/accused Narender and he was sent to Court for trial. Proceedings before the Trial Court 9. Charge under Section 302 IPC was framed against the appellant/accused on 08th October, 2003, to which, he pleaded not guilty and claimed trial. 10. In order to prove its case, prosecution examined 27 witnesses. Statement of appellant/accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 [“Cr.P.C.”], wherein, he denied all the incriminating evidence appearing on record against him. He claimed that he was innocent. No injury was caused by him to Sandeep, and he was falsely implicated in this case. He refused to lead any evidence in his defence. 11. The learned Trial Court vide judgment dated 18th December, 2004, concluded as under:- “(i) Accused Narender and deceased Sandeep were involved in a scuffle; (ii) Only these two persons were involved in scuffle and there is no evidence of any third person involved in that scuffle; (iii) Scuffle was over cutting of hair; (iv) Hair were being cut with a pair of scissors; (v) In the scuffle deceased Sandeep sustained injuries on account of which he became unconscious and died shortly afterwards; (vi) The injuries were caused with a pair of scissors recovered from the spot; (vii) All injuries i.e. injuries no. 1 to 8 are result of scuffle between two parties and are of the same duration. Injury no.8 is of the depth of 13 cm which proved fatal being sufficient to cause death in ordinary course of nature and is not possible accidentally or by self-infliction ; and (viii) There is no explanation from the accused as to how the injuries were suffered by the deceased when he and he alone was having a scuffle with him (deceased) with a pair of scissors in hand.” 12. On the basis of such conclusion, the learned Trial Court drew the inference that it was the accused and none else who had caused the death of the deceased, Sandeep by intentionally giving him fatal wound on his chest with a pair of scissors and accordingly convicted him under Section 302 IPC and vide Order on Sentence dated 21st December 2004, sentenced the appellant/accused to undergo imprisonment for life for the offence under Section 302 IPC with fine of Rs. 1000/-, in default, to undergo imprisonment for three months. 13. Feeling aggrieved, the appellant/accused Narender preferred the present appeal. Submissions on behalf of the appellant 14. The learned counsel for the appellant assailed the impugned judgment of conviction, stating that the learned Trial Court failed to appreciate the evidence in its proper perspective and convicted the appellant merely on conjectures and surmises. It was contended that the prosecution had failed to establish that the appellant intentionally caused the death of Sandeep. 15. It was submitted that as per the admitted case of the prosecution itself, there was no prior enmity or dispute between the appellant and the deceased. There was no motive for the appellant to kill or cause injury to the deceased. In fact, appellant neither had any intention to inflict any injury nor had any knowledge that by just trying to stop the deceased from cutting his hair, the deceased would apply so much force that would result in a jerk, and in turn injuring himself from the scissor. 16. It was further argued that at no point of time, the scissor came into the hand of the appellant nor he was negligent in his act. He had just tried to stop the appellant and did not use any excess force nor tried to snatch the scissor. He had only tried to defend himself and did not attack the deceased in any manner. 17. It was submitted that the two prosecution witnesses, that is, PW-3 and PW-8 turned hostile and did not support the case of prosecution. They were cross examined by the learned APP, and even in cross examination, nothing came out. In fact, in cross examination by the learned Prosecutor, contradictory suggestions were made, thereby, reflecting that there was no clear stand of the State. 18. It was submitted that if the appellant had tried to hit the deceased with the scissor, then the deceased must have suffered some injuries on his hand, but no such injuries were found, which proves that the appellant did not inflict any injury to the deceased. 19. It was argued that the deceased himself was the aggressor, he had the scissor in his hand and wanted to cut the hair of the appellant forcibly. The appellant was just trying to prevent the deceased from cutting his hair and in trying to get his hand released, the deceased may have gotten a jerk, resulting in injury on his person. 20. It was further submitted that as per information recorded vide DD No. 25, Sandeep had died due to injuries from the scissor and the information received was not regarding his murder. However, later on, the statements of the witnesses were manipulated to falsely implicate the appellant. 21. The learned counsel further submitted that there was admittedly no prior enmity between the appellant and the deceased. The occurrence took place on a trivial issue, concerning the cutting of hair. There was a complete absence of any motive. 22. It was further submitted that the conduct of the appellant immediately after the occurrence was wholly inconsistent with an intention to cause death to the deceased. The appellant along with PW-3 and PW-8, removed the injured Sandeep first to Malik Nursing Home and thereafter to ESI Hospital. The learned counsel contended that this conduct demonstrated the appellant's bona fide and his concern for the injured, rather than an intention to cause or facilitate his death. The evidence shows that the appellant accompanied the injured to the hospital and thereafter returned with others to the Akhada. 23. Referring to the testimony of PW-13 Dr. V.K. Malik, it was further submitted that even Sandeep had just informed the doctor that the injuries were caused by the scissor in a scuffle, but did not name the appellant or attribute any injury specifically to him. It was argued that such statement by the deceased to the doctor, substantially corroborated the defence version that the injury was sustained during a scuffle and was not an intentional assault by the appellant. 24. It was further argued that there was delay in passing the information to the police, inasmuch as, the incident took place at about 2:00 PM, while DD No. 25 was recorded at about 6:15 PM. The delay of several hours in recording the DD entry was a circumstance, which creates doubt on the prosecution case. It was also argued that the statement of PW-3 Neeraj was recorded after an unexplained and substantial delay of approximately 02 months and 21 days. Such delay in recording the statement of a witness, who was allegedly present at the scene of crime, materially affects the evidentiary value of his testimony. 25. The learned counsel submitted that the prosecution case, at best, established that a sudden scuffle had taken place between the appellant and Sandeep, and that Sandeep sustained a fatal injury with the scissors. It is not established beyond reasonable doubt that the appellant had the intention to inflict such a fatal injury. 26. It was urged that the judgment of conviction suffers from an erroneous appreciation of evidence and that the appellant was entitled to the benefit of doubt. In support of his submissions, the learned counsel for the appellant relies on the following judgments:- i. Tunda Vs. Rex, AIR 1950 ALL 95; ii. Rakesh Dutt Sharma Vs. State of Uttarakhand, Order in CRL.A. No. 1461/2012 dated 28th August, 2025; iii. Arvind Kumar Vs. State of NCT Delhi, Judgment in CRL.A. No. 2390/2010 dated 17th July, 2023. Submissions on behalf of the State 27. Per contra, Mr. Aman Usman, learned APP for the State, supported the impugned judgment and submitted that the learned Trial Court duly appreciated the evidence and rightly convicted the appellant under Sections 302 IPC. It was contended that the prosecution has established a complete chain of evidence, demonstrating the presence of the appellant during the scuffle and the fatal injury suffered by Sandeep at the behest of the appellant. 28. The learned APP submitted that the evidence of PW-3 Neeraj and PW-8 Naveen consistently placed the appellant and the deceased together at the relevant time and proved the scuffle between them. The mere fact that PW-3 and PW-8 did not specifically depose as to the precise manner in which Sandeep got injured by the scissors, is not sufficient to discard the remaining part of their testimonies, which clearly establish that the appellant and Sandeep were fighting just before the infliction of the fatal injury. 29. It was further submitted that the post-mortem examination conducted by PW-19 Dr. Akash Jhanjee proves that Injury No.8 was sufficient in the ordinary course of nature to cause death. The doctor opined that the said injury was caused by a sharp, penetrating and cutting pointed weapon. The medical evidence further receives material corroboration from the examination of the weapon recovered from the place of occurrence. After examining the said weapon, the doctor opined that Injury No. 8 was possible with the said pair of scissors. The compatibility between the recovered weapon and the fatal injury provides independent corroboration to the version of the prosecution. The recovery of scissors from the place of occurrence, when read along with the medical opinion, constitutes an important incriminating circumstance against the accused. 30. It was further submitted that the ocular evidence materially corroborates the medical circumstances surrounding the death of deceased Sandeep. The prosecution evidence establishes that deceased Sandeep, appellant/accused Narender and witnesses Neeraj and Naveen were present together at the wrestling ground. A dispute arose in relation to cutting of the hair, resulting in a scuffle between the appellant and the deceased, and during such scuffle, the deceased suffered a fatal penetrating injury with the scissor, resulting in his death. The evidence of PW-3 and PW-8 regarding the presence of the accused and the deceased together coupled with the scuffle between them receives substantial corroboration from the medical evidence. 31. The learned APP further submitted that the appellant's subsequent conduct of taking the injured to the hospital, could not by itself exonerate him. Such conduct could not negate the evidence establishing the appellant's participation in the scuffle and the medical evidence regarding the nature of the fatal injury. As regards the delay in lodging of the FIR, it was submitted that the mere fact that the first information of the occurrence was recorded several hours after the occurrence, could not demolish the prosecution’s case, particularly when, the deceased had first been taken for medical treatment and thereafter his body was brought to the Akhada. 32. The learned APP has thus argued that the prosecution has been able to establish a complete and cogent chain of circumstances connecting the appellant Narender with the fatal injury and the resultant death of the deceased Sandeep. The initial registration of the FIR under Section 304 IPC stands duly explained by the subsequent investigation and the medical opinion obtained thereafter, pursuant to which, the offence was altered to Section 302 IPC and the charge sheet was filed accordingly. The ocular evidence regarding the presence of the appellant and the deceased, the scuffle between them, recovery of the weapon and ruling out the possibility of accidental or self-inflicted injuries materially corroborates the prosecution case. 33. On the basis of the aforesaid submissions, it was argued that the circumstances proved on record when appreciated in their entirety and in a proper perspective, points towards the involvement of the appellant Narender in the occurrence and proves the prosecution charge under Section 302 IPC beyond doubt. It was accordingly submitted that the appeal being devoid of merits, deserves to be dismissed. 34. In support of his arguments, the learned APP placed reliance upon the following judgments:- i. Abdul Sayeed Vs. State of M.P., (2010) 10 SCC 259; ii. Gura Singh Vs. State of Rajasthan, (2001) 2 SCC 205; iii. Lokendra Singh Vs. State of M.P., (2019) 3 SCC 676; iv. Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681. Reasoning and Analysis 35. We have considered the arguments advanced by the learned counsel for the appellant and the learned APP on behalf of the State and have carefully perused the material on record. 36. While exercising appellate jurisdiction in a criminal appeal against conviction, this Court may re-appreciate the evidence to ascertain whether the findings recorded by the learned Trial Court suffer from any perversity, material illegality, or result in miscarriage of justice. 37. The present case is one of a sudden scuffle which occurred between the appellant and the deceased Sandeep over a trivial issue, which unfortunately resulted in the demise of Sandeep. The question for determination is whether the prosecution has been able to prove beyond reasonable doubt that the appellant was the person who inflicted the fatal injury and had the requisite intention to cause the death of Sandeep. 38. The post-mortem of the deceased was conducted by PW-19 Dr. Akash Jhanjee, who found eight injuries on the person of Sandeep. Injury No.8 was a penetrating incise wound measuring 1.2 cm x 0.4 cms and having a depth of approximately 13 cms. The doctor opined that the said injury was sufficient in the ordinary course of nature to cause death and that the death had resulted from cardiac tempunade consequent upon the said injury. He further opined that injury No.8 had been caused by a sharp, penetrating and cutting pointed weapon and that the injury was possible by the scissors recovered from the spot. The medical evidence thus leaves no room for doubt that Sandeep had died as a result of a fatal chest injury. PW-19 ruled out the possibility of Injury No.8 being accidental nor self-inflicted. Notwithstanding such opinion, the prosecution still needs to prove that the appellant had the necessary intent. It is settled position in law that merely on medical opinion, it may not be safe to convict the accused. 39. The prosecution case, insofar as the appellant’s involvement is concerned, rests substantially upon the testimonies of PW-3 Neeraj and PW-8 Naveen. Both these witnesses were admittedly present in the Akhada at the relevant time and knew the appellant and the deceased. Their testimonies require careful scrutiny, more so, because neither of them deposed to have seen the appellant inflicting the fatal injury. 40. PW-8 Naveen deposed that on the relevant date, he along with Neeraj, Narender and Sandeep were sitting in a room adjoining the Akhada. Sandeep asked Narender to get his head shaved, to which, Narender replied that Sandeep should first get his own head shaved. Sandeep then told him that there was marriage in his family and so he would get his head shaved later on. Sandeep thereafter picked a scissor and cut some hairs of Narender. Narender tried to stop him, and in the process, Sandeep suffered injuries. Significantly, PW-8 stated that he did not see how Sandeep suffered injuries, as he and Neeraj were sitting on a side and his attention was drawn towards Sandeep only when he started feeling giddiness. 41. PW-8 further stated that the police recorded his statement Ex. PW-8/A, bearing his signatures at point A, however, the same was not read over to him and he had only signed it. He further deposed about the recovery of scissor from the same room, but could not tell as to whether the hairs were also seized by the police. 42. PW-8 was declared hostile and was cross examined by the learned APP with the permission of the Trial Court. In such cross examination, he reiterated that statement Ex. PW-8/A was not read over to him, and that his signatures on Ex. PW-6/A to Ex. PW-6/C were obtained on blank papers. He feigned ignorance to the suggestion that at the time of cutting the hair, Narender had caught hold of the right hand of Sandeep in which he was holding the scissor. He denied the suggestion that Narender twisted the right hand of the deceased in which he was holding the scissor. He stated that he did not hear Sandeep requesting Narender not to twist his hand in such a dangerous manner as the same may result in injury. He further stated that he did not see if on account of non-release of the hand of the deceased by Narender, the scissors struck the left side of the chest of the deceased. He denied the suggestion that the IO had lifted few cut hairs lying in the same room or if any scissor was also lifted and its sketch Ex. PW-6/A was prepared. He denied that the scissor was kept in a parcel, which was sealed with the seal of JS and seized vide memo Ex. PW-6/B. He denied having given any supplementary statements Mark X and Mark Y to the police. He did not identify the scissor. 43. In cross examination by the defence, PW-8 re-confirmed that he was not aware about the content of the statement Ex. PW-8/A as the same was not written on his dictation and was also not read over to him. He took further somersault by stating that he had not seen the incident in which the deceased and the appellant Narender were trying to cut the hairs of each other, but heard about the same subsequently. He categorically stated that he does not know how the deceased suffered injuries. 44. The second eye witness projected by the prosecution is PW-3 Neeraj. He deposed that Narender and Sandeep were desirous of getting their heads shaved. However, deceased Sandeep later refused, though, appellant Narender was insisting for shaving off his hair. PW-3 then made an improvement by stating that it was Sandeep who was asking Narender to get his head shaved, whereas, Narender was insisting Sandeep to get his hair shaved. On this issue, both of them had a scuffle with each other, and in that scuffle, Sandeep suffered an injury on his chest with a scissor. However, according to him, he does not know how Sandeep received that scissor injury. He could not even tell as to where the scissor was at the time of incident. 45. PW-3 was also declared hostile and was cross examined by the learned APP with the permission of the learned Trial Court. In such cross examination, he was confronted with the previous statements Mark X and Mark Y, but he stated that such statements were not made by him to the police. He admitted the suggestion that on the day of incident, deceased Sandeep was insisting Narender to get his head shaved like him and that of Naveen. He admitted that the appellant was refusing for the same. However, he expressed his ignorance as to whether on such refusal of Narender, Sandeep had picked up the scissor from a box lying in the room and cut some hair of Narender with that scissor. He could not tell that due to this reason, Narender got enraged and entered into a scuffle with Sandeep. He could not tell if Narender had stabbed into the chest of Sandeep with the same scissor. 46. During cross examination by the defence, PW-3 stated that he gave the statement voluntarily without any pressure, threat or coercion. 47. On an analysis of the testimonies of PW-3 and PW-8, it is evident that both these witnesses have turned hostile and have not supported the prosecution case. There can be no doubt to the proposition that the entire testimony of a hostile witness is not to be discarded or effaced from the record, and it is the duty of the Court to separate the grain from the chauff, and therefore so much of the testimonies of the hostile witnesses which inspire confidence, can still be relied upon. At the same time, the testimonies of PW-3 and PW-8 only established the presence of the appellant and the deceased at the place of occurrence, the scuffle between the two on a trivial issue of cutting of the hair of each other and the resultant injury on the chest of Sandeep with the scissor. Their testimonies further prove that it was Sandeep who was forcibly trying to cut the hair of the appellant, who was resisting the same. Appellant was therefore not the aggressor. In fact, if the testimony of PW-8 is to be believed, it was the deceased Sandeep who himself picked up the scissor and started cutting the hair of the appellant against his wishes and consent. There is no evidence that the scissor was in the hand of the appellant at the time of delivering the fatal scissor blow. Mere recovery of the scissor also does not materially advance the prosecution case. The scissor was recovered from the spot and not from the possession of the appellant. What remains unproved is the crucial fact that the appellant had the scissor in his hand at the relevant moment and intentionally inflicted the injury. 48. PW-3 and PW-8 have deposed that after the injury was suffered by Sandeep, they both along with the appellant, removed the victim to Malik Nursing Home and from there to ESIC Hospital. The conduct of the appellant of accompanying the injured to the hospital is not a disputed circumstance. 49. PW-13 Dr. V.K. Malik examined Sandeep upon being brought to Malik Nursing Home, and as per his testimony, Sandeep told him that the injury was suffered by him by a scissor in a scuffle. What is significant is that Sandeep did not attribute the scissor injury to the appellant. While such omission cannot by itself exonerate the appellant, it certainly assumes relevance when considered alongside the failure of PW-3 and PW-8 to depose exactly how the fatal injury was inflicted. 50. There is no evidence on record to suggest that there was any previous enmity or ill-will between the appellant and the deceased, which may have prompted the appellant to commit the murder of the deceased. 51. We are of the view that the prosecution has failed to prove that the appellant had either any intention of causing death of the deceased or the intention of causing such bodily injury to the deceased, which was likely to cause his death. Merely because the appellant was trying to stop the deceased from cutting his hair, it is not possible to attribute knowledge to him that by his act of stopping the deceased, he was likely to cause the death of the deceased. Thus, by no stretch of imagination, it is a case of culpable homicide as defined under Section 299 of IPC, as the existence of none of the three ingredients incorporated therein has been proved by the prosecution. 52. We are also unable to accept the argument that the appellant's failure to explain the exact manner in which Sandeep suffered the fatal injury can, by itself, complete the prosecution case. The prosecution must first establish the foundational circumstances from which the guilt of the appellant can reasonably be inferred. Section 106 of the Evidence Act, 1872 cannot be employed to relieve the prosecution of its primary burden. 53. At the highest, prosecution has been able to prove that Sandeep suffered an injury with scissor accidently in a scuffle with the appellant without any criminal intention or knowledge on the part of the appellant. Thus, no offence was committed by the appellant in view of Section 80 of the IPC, as the death was purely accidental. 54. We find no clinching evidence on record to hold the appellant guilty of any offence, much less, Section 302 IPC. Consequently, we are of the considered opinion that the prosecution has miserably failed to prove its case against the appellant. 55. Accordingly, the appeal deserves to be allowed. The Judgment of Conviction dated 18th December, 2004 and the Order on Sentence dated 21st December, 2004 are hereby set aside. The appellant Narender is acquitted of the charge framed against him. 56. The bail bond furnished by the appellant shall remain valid for another period of three months. 57. Copy of this judgment be sent to the learned Trial Court and the Superintendent Jail for information. RAVINDER DUDEJA, J. NAVIN CHAWLA, J. SEPTEMBER 15, 2026/AK CRL.A. 45/2005 Page 20 of 20