Accused can convicted if witness evidence turn hostile?

In the High Court at Calcutta

Criminal Appellate Jurisdiction
Appellate Side

Present:The Hon’ble Justice Aniruddha Bose And The Hon’ble Justice Asha Arora

C.R.A 713 of 2006

Mahadeb Mal@ Geru
Vs
The State of West Bengal

Judgment on : 15th November, 2016

Citation: 2017 CRLJ 470 Cal

1. The present appeal at the instance of the accused/appellant is against the judgement and order of conviction and sentence dated 28th June, 2006and 29th June, 2006 passed by the learned Additional Sessions Judge, Fast Track Court Bankura in Sessions Trial No. 3 of February 2006 arising out of Sessions Case No. 29 of January 2006 whereby the appellant has been convicted for the offences punishable under section 498A and 302 of the Indian Penal Code (herein after referred to as the IPC) and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1000/- in default of which to suffer rigorous imprisonment for three months for the offence under section 498A of the IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs. 3000/- in default of which to suffer rigorous imprisonment for six months for the offence punishable under section 302 of the IPC.

2. Prosecution case, sans unnecessary details is as follows: On 3rd December 2005 at 13.15 hours the complainant Dukhu Mal of village Kendkunia within Police Station Bankura submitted a written complaint to Sub-Inspector Ramagati Dutta (PW 16) of Bankura Police Station stating that his daughter Khandi Mal alias Sulochana Mal was married to the accused Mahadeb Mal alias Geru about four years ago whereafter the accused started torturing his wife (complainant’s daughter) over his unfulfilled demand for a cycle. On 3rd December 2005 at about 9.00 AM on being informed that the accused had murdered his wife, the complainant rushed to his daughter’s matrimonial home and found her lying dead on a cot in the courtyard of the house. The sister of the accusedinformed the complainant that the deceased was mercilessly assaulted and throttled to death by the accused.

3. On the basis of the aforesaid written complaint of Dukhu Mal (PW 1), Bankura P.S Case No. 322 of 2005 dated 03.12.2005 was registered under section 498A/304B/302 of the IPC against the accused/appellant. Investigation into the case culminated in the submission of the charge sheet against the accused/appellant under section 498A/302/304B of the IPC. The case being a sessions triable one was committed to the Court of the Sessions Judge, Bankura wherefrom it was transferred to the Additional Sessions Judge, Fast Track Court, Bankura for trial and disposal. The Trial Court framed the charge against the accused for the offences punishable under section 498A, 302 and alternatively under section 304B of the IPC. The accused pleaded not guilty to the arraignment and claimed to be tried. During trial prosecution examined seventeen witnesses and exhibited several documents. The defence of the accused was complete innocence and outright denial of the prosecution case. After conclusion of trial, the learned Additional Sessions Judge, Fast Track Court, Bankura rendered the aforesaid judgement and order of conviction and sentence for the offences under section 498A and 302 of the IPC against the accused/appellant.

4. The point for consideration is whether the conviction and sentence of the accused/appellant is sustainable.

5. The main thrust of argument of Mr. Bakshi, learned counsel for the appellant is that PW 14 the star witness of the prosecution turned hostile during the trial so the case has no legs to stand. Leading us through the evidence of PW 14 Mr. Bakshi sought to impress that this witness did not see the incident as alleged by the prosecution since she had gone to the field for tending the cows and after returning home she found the victim lying dead. To buttress his submission learned counsel for the appellant invited our attention to the evidence of PW 14 in cross-examination (on behalf of the accused) wherein she (PW 14) stated that on the day of incident when she left the house for tending the cows, her elder brother (accused) had already left the house for his work. Further contention of the learned counsel is that the evidence of PW 4 is not worthy of credence since she is an interested witness. It has also been canvassed that there is no evidence to prove that the alleged torture upon the deceased continued till the date of the incident. Another branch of argument of the learned counsel for the appellant is that the incident was the outcome of a quarrel and the act in question was not premeditated. According to the learned counsel, there was no intention to kill so the act attributed to the accused would not fall within the offence of murder. It would at best constitute a lesser offence under section 304 of the IPC.

6. Repudiating the submissions on behalf of the appellant, the learned counsel for the respondent/State countered that though there is no ocular witness to the incident, there is a complete chain of circumstantial evidence which conclusively proves the charge against the accused/appellant. It has been argued on behalf of the State that through PW 1, PW 2, PW 4, PW 5 and PW 6 prosecution succeeded in proving that the deceased was subjected to torture by the accused while the testimony of PW 14 corroborated by the circumstantial evidence unerringly points to the accused as the murderer of the deceased. Placing reliance upon the decision reported in AIR 1986 Supreme Court 683 in the case of Jaspal Singh versus State of Punjab learned counsel for the State argued that the intention to cause the death of the victim is clear from the nature of the injuries found on the person of deceased so the conviction of the appellant under section 302 of the IPC is justified.

7. This now leads us to advert briefly to the witnesses examined by the prosecution. PW 1 Dukhu Mal is the complainant who is the father of the deceased. PW 2 Tapan Mal is the cousin brother of the deceased who deposed regarding the assault upon her by the accused since his demand for a cycle was not fulfilled. PW 3 Mohan Mondal is the scribe of the FIR (exhibit 3). PW 4 Sabila Mal is a neighbour of the accused who testified regarding a significant incriminating circumstance against the appellant. PW 5 Rabi Mal is another co-villager of the accused/appellant who testifiedregarding the torture upon the deceased. PW 6 Debu Mal, a resident of the neighbouring village spoke about the torture upon the deceased. PW 7 Aditi Das Gupta is the Deputy Magistrate who held inquest on the corpse of the deceased. PW 8 Kalipada Mahato is the constable who identified the dead body of the victim to the autopsy surgeon and seized the wearing apparels of the deceased. PW 9 Pravash Chandra Chakroborty, the Associate Professor and Head of the Department of Forensic and State Medicine concurred with the opinion of the autopsy surgeon (PW 17) as to the cause of death of the deceased. PW 10 Soma Mazumder is the Judicial Magistrate who recorded the statement of witness Sakhi Mal (PW 14) under section 164 of the CrPC. PW 11 Gopal Dey was posted as the Inspector-incharge of Bankura P.S on the relevant date. He is a formal witness who received the written complaint and registered the case against the accused. He also drew up the formal FIR and endorsed the case for investigation to S.I Ramagati Dutta (PW 16). PW 12 Constable Susanta Dutta is another formal witness who witnessed the seizure of the wearing apparels of the deceased. PW 13 ASI Anup Kumar Raj is also a formal witness of seizure. PW 14 Sakhi Mal the sister of the accused is a vital witness for the prosecution. PW 15 Mala Mal is yet another co-villager of the accused who turned hostile during the trial. PW 16 S.I Ramagati Dutta is the Investigating Officer and PW 17 Dr. Pralay Mazumdar held post mortem examination on the corpse of the deceased.8. There being no ocular witness to the incident, prosecution case rests entirely on circumstantial evidence. The incriminating facts and circumstances on which prosecution led evidence may be broadly enumerated as follows:

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(1) Deceased was the wife of the accused and they were residing together in the same house on the date of the incident.

(2) Deceased was subjected to torture by her husband (accused) over his unfulfilled demand for a cycle.

(3) The accused/appellant was last seen with the deceased in the courtyard of their house on the date of the incident.

(4) The (deceased)victim was found lying dead on a cot in the courtyard of the house shortly after the assault upon her by the accused.

(5) Post occurrence conduct of the accused.

(6) The medical evidence of the autopsy surgeon (PW 17) corroborating the prosecution version regarding the cause of death of the deceased.

(7) Silence of the accused on being questioned during his examination under section 313 of the CrPC as to the cause of death of his wife.

9. It is not in dispute that the deceased was the wife of the accused and they were residing together in the same house at the relevant time. This vital piece of incriminating circumstance has been testified by PW 1, PW 2, PW 4, PW 5, PW 14 and PW 15. In this context it is significant to refer to the evidence of PW 14 the sister of the accused who categorically testifiedthat her brother accused Mahedeb Mal and his wife Khandi Mal resided in a room while she (PW 14), her sister and mother resided in a separate room. PW 15 a co-villager of the accused deposed in conformity with the evidence of PW 14 by stating that the accused and his wife Khandi used to reside together in a room while the mother and sister of the accused resided in a separate room. The evidence regarding the factum of marriage and that the accused and the deceased resided together remained unchallenged in cross-examination. Even during his examination under section 313 of the CrPC accused admitted the aforesaid facts in reply to question nos. 1 and 3 which are reproduced hereunder:

“Q.1. It is revealed from the deposition of witness no. 1 and other witnesses that the daughter of witness no. 1 Khandi alias Sulochana was your wife and you have a four month old child. What will you say? Ans. It is true.

……………………………………………………………..
……………………………………………………………..

Q.3. Witness no. 14 Sakhi Mal who is your sister has stated that you used to live with your wife in a room and your sister and mother stayed in another thatched room, adjacent to your room. What will you say ? Ans. It is true”

10. Through the evidence of PW 1, PW 2, PW 4 and PW 5 prosecution sought to prove that the deceased was subjected to torture by the accused. PW1 father of the deceased testified in his evidence that his daughter disclosed to him that accused would torture and assault her over his demand for a cycle. This fact also finds place in the FIR (exhibit 3). Evidently PW 1 deposed in conformity with the FIR on this material aspect. Therefore it cannot be said that PW1 introduced a false story of torture as an afterthought to improve the case during the trial. Nothing could be elicited in the cross-examination of PW1 to suggest that he had any reason to depose falsely against the accused. The testimony of PW 1 regarding this piece of incriminating circumstance has been corroborated by PW 2, PW 4 and PW 5. PW 2 stated in his evidence that there was a talk of giving one cycle at the time of marriage of Khandi. He (PW 2) was told by Khandi that as the cycle was not given to the accused, he would beat her. It has surfaced in the cross-examination of PW 2 that the panchayat member Anna Mondal was informed verbally about the torture and the accused was warned by the said panchayat member whereafter for some time accused did not torture Khandi. Nothing could be brought on record by way of cross-examination of this witness to show that he was inimically disposed to the accused. On the contrary, it has emerged in the cross-examination of PW 2 that he had visiting terms with the accused. So there was no reason for him to depose falsely against the accused. PW 4 is an independent witness who supported the version of the complainantregarding the torture upon the deceased. The relevant portion of the evidence of PW 4 is reproduced hereunder:

“After her marriage for 3/4 months Khandi Mal was treated well but later
she was subjected to torture in her husband’s house as Khandi’s father
could not give one cycle to the accused as per their agreement. I heard the
cries and noise when she was tortured. I could hear this as my house was
very near to their house”.

No contradiction could be pointed out in the aforesaid portion of the evidence of PW4 in relation to her statement made under section 161 of the CrPC during investigation. The evidence of PW 4 remained unscathed in cross-examination. Nothing could be elicited from the cross-examination of this witness to suggest that she had any reason to depose falsely against the accused. It is evident that PW 4 deposed spontaneously without any exaggeration. The evidence of PW 4 inspires confidence and is worthy of credence. PW 5 is another independent witness who spoke about the torture in the following words :

“Initially Khandi was treated well but later she was tortured by her
husband in connection with his demand for a cycle. I came to know of the
said torture on Khandi as she would tell the same to us”.

No contradiction has emerged in the evidence of PW 5 in relation to his statement made during investigation. There is nothing to suggest in the cross examination of PW 5 that he had any grudge against the accused. On the contrary, PW 5 had cordial relation with the accused as is evident from his crossexamination wherein he disclosed that he had visiting terms with the accused. No motive could be assigned to PW 5 for deposing falsely against the accused. For the reasons discussed we are convinced that the second mentioned incriminating circumstance against the accused has been proved by credible and unimpeachable evidence.

11. In the case of Bodh Raj alias Bodha and others versus State of Jammu and Kashmir reported in AIR 2002 Supreme Court 3164 the Apex Court held that the last seen theory comes into play where the time gap between the point of time when the deceased was last seen alive in the company of the accused and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. In the case before us prosecution strived to prove through PW 14 this crucial piece of incriminating circumstance. PW 14, sister of the accused, for obvious reasons turned hostile during the trial to help the accused. Though PW 14 resiled from her statement made under section 161 of the CrPC during investigation as well as from her statement under section 164 of the CrPC, her evidence does not get wiped out in toto. It is settled law that the evidence of a hostile witness can be relied upon to the extent to which it supports the prosecution version of the incident. In the case of Bhajju alias Karan Singh versus State of M.P. reported in (2012)2 C CrLR (Supreme Court) 358 the Apex Court, while discussing the effect of hostile witnesses held as follows in paragraphs 36and 37 of the judgement:

“36. It is settled law that the evidence of
hostile witnesses can also be relied upon by the prosecution to the
extent to which it supports the prosecution version of the incident.
The evidence of such witnesses cannot be treated as washed off the
records, it remains admissible in trial and there is no legal bar to
base the conviction of the accused upon such testimony, if
corroborated by other reliable evidence. Section 154 of the Act
enables the Court, in its discretion, to permit the person, who calls a
witness, to put any question to him which might be put in crossexamination
by the adverse party.”

“37. The view that the evidence of the witness who has been called
and cross-examined by the party with the leave of the court, cannot
be believed or disbelieved in part and has to be excluded altogether,
is not the correct exposition of law. The Courts may rely upon so
much of the testimony which supports the case of the prosecution
and is corroborated by other evidence. It is also now a settled canon
of criminal jurisprudence that the part which has been allowed to be
cross-examined can also be relied upon by the prosecution”.

In the case before us it was PW 14 who had seen the deceased being assaulted by the accused on the date of the incident. Contrary to her statement made under section 161 of the CrPC before the Investigating Officer (PW 16), PW 14 stated in Court in her examination in chief that she was not at home on the day of the incident. She had been to the field for tending the cows and when she returned home she found Khandi lying dead on the bed. PW 14 also resiled from her earlier statement recorded under section 164 of the CrPC by the Judicial Magistrate (PW 10) wherein she stated unequivocally that she was present at the time of the incident and that she saw her elder brother Mahadeb Mal assaulting his wife Khandi. Due to fear she fled. After some time she came back and found the deceased lying dead. Being quizzed in cross-examination on behalf of the prosecution PW 14 admitted that her statement was recorded by the Judicial Magistrate and she stated about the incident to the Magistrate. PW14 also admitted in her crossexamination (on behalf of the prosecution) her earlier statement made under section 161 of the CrPC. The relevant portion of the evidence of PW 14 in cross-examination (by the prosecution) is reproduced hereunder:

“It is fact that I stated to the police that on 3.12.05 since morning a
quarrel took place between my said elder brother and my Boudi. I also
stated to the police that I remained present at the time of the incident. I
also stated to the police that my Boudi was feeding milk to her son sitting
upon a khatia in the courtyard. At that time my brother gave several blows
with a kick on the back of my Boudi and my brother was found to be very
excited and he also throttled my Boudi and seeing that I fled. I also stated
to the police that sometime thereafter I again came to the place hearing the
cries of my nephew and then I took my nephew on lap and found my Boudisoundless. I also pushed her but there was no movement and then I
realised that she was dead”.

Being quizzed by the counsel for the accused, PW 14 conceded in her cross-examination that on the day of incident when she left the house for tending cows her elder brother had already left the house for work but in the same breath PW 14 stated that her elder brother (accused) “came back that day as he did not have any work on that day”. This part of the evidence of PW 14 clearly supports the prosecution version. At this juncture it is significant to mention that the name of witness Sakhi Mal (PW 14) figures in the FIR wherein the complainant (PW 1) categorically averred that he was informed by Sakhi Mal that his daughter Khandi (deceased) was severely assaulted and throttled to death by the accused. We cannot lose sight of the fact that the FIR was lodged by the complainant with utmost promptitude on the date of incident within a few hours of being informed about the occurrence. Therefore the possibility of concoction or fabrication in the prosecution case with a view to falsely implicate the accused is completely ruled out. For the aforesaid reasons we are of the firm view that it was PW 14 who had last seen the deceased with the accused while she (deceased) was being assaulted by the accused in the morning on the date of incident. Shortly thereafter the deceased was seen (by PW 14) lying dead on a cot in the courtyard of the house. Thus the time gap between last seen and the death of the deceased is so small that itexcludes the possibility of any person other than the accused being the perpetrator of the murder of the deceased.

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12. There is no denial of the fact that the deceased was found lying dead on a cot in the courtyard of the house of the accused. PW 2, PW 5, PW 6, PW 14, and PW 16 have testified to this effect and their evidence regarding the aforesaid incriminating circumstance remained unassailed in crossexamination.

13. Yet another telling circumstance against the accused has been unfolded in the evidence of PW 4 who stated in her evidence that her house was very near to the house of the accused so she could hear the cries of the deceased when she was tortured. The relevant portion of the evidence of PW 4 regarding the post occurrence conduct of the accused is quoted hereunder:

“…Then Mahadeb Mal killed Khandi by throttling in front of their room.
Having heard the noise I went to their house and found Mahadeb was
fleeing after killing his wife”.

No contradiction has emerged regarding this part of the evidence of PW 4 who claimed to have seen the accused fleeing from his house after the incident. This post crime conduct of the accused is unnatural and inconsistent with his innocence. The evidence of PW 4 could not be demolished in cross-examination. Nothing could be elicited in thecross-examination of this witness to suggest that she had any reason to depose falsely against the accused. There is no substance in the argument on behalf of the appellant that PW 4 cannot be relied upon since she is an interested witness. Nothing could be brought on record by way of crossexamination of PW 4 to show that this witness had any interest in falsely implicating the accused. PW 4 is not related to the complainant nor is she inimical to the accused. PW4 is a completely independent witness who had no axe to grind against the accused. The evidence of this witness is convincing and beyond reproach.

14. The medical evidence of PW 17 who held post mortem examination on the corpse of the deceased is in complete conformity with the prosecution version as to the cause of death of the victim. On examination the Autopsy Surgeon found the following injuries on the person of the deceased:

“ 1. One bruise 1” X ½” over the left eyebrow and the upper eye lid of right eye;

2. one abrasion 1.2” X 1” placed obliquely over right malar prominence of face;

3. three linear cresentic abrasion over right side of neck measuring 0.5” X 0.1” , 0.4” X 0.1” and 0.6” X 0.1” resspectively downwards scattered over an area measuring 2.3” X 1.1” placed obliquely more or less parallel to each other 1.5” right to anterior midline and 2.9” above the suprasternal notch;4. one abraded bruise 0.8” X 0.4” over left side of front of neck placed obliquely 1.3” left to the anterior midline and 4.1” above suprasternal notch;

5. abrasion 1½” X ½” over posterial aspect of upper part of right forearm longitudinally placed 2” below right elbow;

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6. one abrasion 1” X ½” placed obliquely just over tip of the left shoulder. On dissection:-

7. haematoma 4” X 3” over the left side of frontal region of scalp;

8. one bruise 2.9” X 1.2” diffused in the soft tissues of the right side of the neck;

9. one bruise 1.5” X 0.9” diffused in the soft tissues in the left side of the front of the neck;

10. extensive extravasation of blood at the root of tongue and epiglotis;

11. fracture of the left greater cornu of the hyoid bone with inward displacement of fractured segment with extravasation of blood in and around it;

12. one bruise 1” X ½” diffused in the soft tissues over posterior aspect of junction between neck and left shoulder;

13. one bruise 4” X 3” diffused in the soft tissues of the right side of the posterior abdominal wall;

14. one bruise 2” X 1” diffused in the soft tissue of the back of the right forearm.”PW 17 categorically opined that death was due to the effect of manual strangulation ante mortem and homicidal in nature. The evidence of PW 17 regarding the injuries found on the person of deceased and his opinion as to the cause of death remained virtually unchallenged in cross examination. Nothing could be elicited in the cross examination of PW 17 to render his evidence doubtful. Evidently the prosecution case that the deceased was assaulted and throttled to death has been fully corroborated by the medical evidence of the doctor who held post mortem examination. Therefore, it has been established by convincing evidence that the death of the victim was homicidal in nature caused by manual strangulation.

15. The inevitable conclusion that necessarily follows is that the various links in the chain of circumstances have been proved by credible and unimpeachable evidence. The cumulative effect of the circumstantial evidence discussed leads to the unmistakable conclusion that the deceased was done to death by the accused alone. Having reached this conclusion, it is expedient to advert to the fact that during his examination under section 313 of the CrPC accused maintained silence as to the cause of death of his wife. On being asked the accused offered no explanation regarding the homicidal death of his wife. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In Shambhu Nath Mehra versus The State of Ajmer reported in AIR 1956 Supreme Court404 the Apex Court, while dealing with the interpretation of section 106 of the Evidence Act held that the section is not intended to shift the burden of proof (in respect of the crime) on the accused but to take care of a situation where a fact is known only to the accused and it is virtually impossible or extremely difficult for the prosecution to prove the fact. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. In the case before us the accused/appellant was prosecuted for the murder of his wife which took place in the courtyard of their house. In the case of Ganeshlal versus State of Maharashtra reported in (1992) 3 Supreme Court Cases 106 it was held by the Apex Court that since the death of his wife had occurred in the custody of the accused, he was under an obligation to give an explanation for the cause of death in his statement under section 313 of the CrPC. A denial of the prosecution case coupled with absence of any explanation from the side of the accused as to how his wife was throttled to death in the courtyard of their house is a circumstance inconsistent with his innocence but consistent with the hypothesis that it was the accused alone who committed the murder of his wife. There is no evidence that any third person had access to the courtyard and had committed the murder. It is also not the case of the accused that he was elsewhere at the time of occurrence. No such plea of alibi has been set up by the accused. In the case of Trimukh Maroti Kirkan versus State of Maharashtra reported in (2006)10 Supreme Court Cases 681 the Apex Court held that where anaccused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of the crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for the commission of the crime. Similarly, in the case of State of Rajasthan versus Thakur Singh reported in 2014 CRI.L.J. 4047 (Supreme Court) in paragraph 22 of the judgement the Apex Court held as follows:

“22. The law, therefore, is quite well settled that the burden of proving the
guilt of an accused is on the prosecution, but there may be certain facts
pertaining to a crime that can be known only to the accused, or are
virtually impossible for the prosecution to prove. These facts need to be
explained by the accused and if he does not do so, then it is a strong
circumstance pointing to his guilt based on those facts”.

In the case before us the facts relevant to the cause of death of his wife were known only to the accused yet he chose not to disclose them or to explain them. This itself forms a strong circumstance against the accused.

16. There is no merit in the argument on behalf of the appellant that the incident was the fallout of a quarrel and that there was no intention tomurder. According to the learned counsel for the appellant, the present case falls within Exception 4 to section 300 of the I.P.C. Exception 4 to section 300 provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. We are unable to accept the contention that the incident was the outcome of a sudden quarrel. It has been proved by the evidence herein before discussed that the deceased was subjected to torture by the accused over his unfulfilled demand for a cycle. On the date of the incident the deceased was mercilessly assaulted and throttled to death by the accused. The intention of the accused has to be gathered from the facts and circumstances of the case as well as from the nature of the injuries and the manner of assault. The fact that the accused throttled his wife to death is sufficient proof of intention to murder. The incident cannot be attributed to spur of the moment. The case squarely falls within the offence of murder.

17. For the reasons aforesaid we are convinced that the appellant failed to make out any case for interference with the impugned judgement and order of conviction and sentence passed by the Trial Court.

18. Consequently the appeal is dismissed.

19. A copy of this judgement be sent to the Superintendent of the concerned Correctional Home.

20. L.C.R along with a copy of this judgement be sent forthwith to the Trial Court.

21. Urgent photostat certified copy of the judgement, if applied for, shall be given to the parties upon compliance of requisite formalities

(Aniruddha Bose, J.) (Asha Arora, J.)
I agree.

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