Kalimullah vs State on 25 November, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : OCTOBER 28, 2017
DECIDED ON : NOVEMBER 25, 2017

+ CRL.A. 1502/2013

KALIMULLAH
….. Appellant
Through : Mr.Chetan Lokur with Mr.Nitish
Chaudhary, Advocates.

versus

STATE
….. Respondent
Through : Ms.Aashaa Tiwari, APP.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG
HON’BLE MR. JUSTICE C.HARI SHANKAR
S.P GARG, J.

1. Challenge in this appeal is a judgment dated 09.05.2013 of
learned Additional Sessions Judge in Sessions Case No.56/2011 arising
out of FIR No.77/11 registered at Police Station Bharat Nagar by which
the appellant-Kalimullah was held guilty for committing offences
punishable under Sections 302/201 IPC and Section 23 read with
Section 26 of Juvenile Justice (Care and Protection of Children) Act,
2000. By an order dated 30.05.2013, the appellant was sentenced to
undergo Rigorous Imprisonment for life with fine `1,00,000/- under
Section 302 IPC; Rigorous Imprisonment for three years with fine

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`2,000/- under Section 201 IPC and Rigorous Imprisonment for three
years with fine `5,000/- under Section 23 read with Section 26 of
Juvenile Justice (Care and Protection of Children) Act, 2000. All the
sentences were to operate concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-
sheet was that DD No.27A came to be recorded on 16.04.2011 at 6:43
PM at Police Station Bharat Nagar to the effect that 15-20 individuals
of F Block JJ Colony, Wazirpur had brought dead body of a child aged
about 10-11 years, having injury marks, at Kabristaan, Kewal Park,
Azadpur, Delhi. The investigation was assigned to SI Deepak Dahiya
who along with Ct.Devender, ASI Durga Prashad, ASI Shashi Kumar
and others reached F Block, JJ Colony, Wazirpur. From there he came
to know that the body of the child had been taken to Kabristaan Kewal
Park from House No.F-280, JJ Colony, Wazirpur. The investigation was
taken over by PW-42 (Inspector Ashok Kumar). On inspection of the
body, he noticed various injuries on it. PW-25 (Rahis Khan), present at
the spot, informed that the body was brought from F Block, JJ Colony,
Wazirpur for its burial by 15/20 persons. Mohd. Khalilullah (since
convicted), Mohd.Moti-ur-Rehman and Chamman Ahmed were present
there. On inquiry, Mohd. Khalilullah informed that the body was that of
the child Moim @ Chotu who worked with his elder brother
Mohd.Kalimullah (the appellant) to make bindis; he also lived there. He
further informed that on 16.04.2011 at about 3.00 p.m. when he had
gone to see the appellant at F-280, JJ Colony, Wazirpur, he saw the
dead body of a child and brought it to the graveyard at Kewal Park. The
Investigating Officer along with staff went to F-280, ground floor, JJ

Crl.A.1502/2013 Page 2 of 16
Colony, Wazirpur along with Mohd.Khalilullah. The crime team was
called; scene of the crime was photographed; the Investigating Officer
prepared the rukka (Ex.PW42/A) and lodged the FIR. Necessary
proceedings were conducted at the spot; various articles lying therein
were recovered. The body was sent for post-mortem examination.

3. During investigation, Rajav Ali, a child worker kept in the house
of Shabbir Ahmad (since convicted), was recovered from there in the
presence of his wife Farida. Juvenile Welfare Officer was informed; he
recorded Rajav Ali’s statement and after his medical examination; the
child was sent to Child Welfare Committee and from there to Mukti
Ashram.

4. On 20.04.2011, the Investigating Officer received information
that other children were kept at Bhalaswa at Gaffur’s house. Two
children, Sayeed Ansari and Nasim (who was deaf and dumb) were
recovered from there. Sayeed Ansari informed that the appellant used to
give beatings to the children for getting the work done from them.
Statement of child Sayeed Ansari was recorded. At his instance,
weapons of offence were recovered from appellant’s house and seized
vide seizure memo Ex.41/B. Both the children were medically
examined and sent to Mukti Ashram after producing them before Child
Welfare Committee.

5. On 21.04.2011, the appellant was arrested from Inderlok Metro
Station. Pursuant to his disclosure statement (Ex.PW-41/F), certain
recoveries were effected from his house. Statements of witnesses
conversant with the facts were recorded. Mohd.Khalilullah,
Md.Shabbir and Md.Haseeb were also arrested; they were interrogated

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and their disclosure statements (Ex.PW41/M, Ex.PW41/N and
Ex.PW41/O) were recorded. Rajav Ali and Sayeed Ansari recorded
their statements under Section 164 Cr.P.C. During investigation, the
post-mortem examination report was collected. The weapons of offence
were sent to the examining doctor to seek opinion if injuries sustained
by the victim were possible with the said crime weapons. Upon
completion of investigation a charge-sheet was filed against the
appellant- Kalimullah and co-convicts Khalilullah, Shabbir and Abdul
Haseeb in the court for committing various offences. The prosecution in
order to establish its case examined 42 witnesses and relied on several
documents. In their 313 statement, the appellant and co-convicts denied
their involvement in the crime and pleaded false implication. After
considering the contentions of the learned counsel for the appellant and
the other co-convicts and on appreciation of the evidence adduced by
the prosecution, the learned Trial Court by the detailed impugned
judgment, held the appellant guilty for the offences mentioned
previously. The appellant was, however, acquitted of the charges under
Sections 377 IPC and Section 16 of Bonded Labour System (Abolition)
Act, 1976. It is pertinent to note that the prosecution did not challenge
the appellant’s acquittal under those offences. It is apt to note that co-
convicts Khalilullah, Mohd.Shabir and Abdul Haseeb were held guilty
for the offence under Sections 201/34 IPC only. Being aggrieved and
dissatisfied, the appellant has filed the instant appeal.

6. We have heard the learned counsel for the parties and have
scrutinized the evidence on record minutely.

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7. Homicidal death of the child Moim @ Chotu, aged around 10/11
years is not in dispute. On 16.04.2011, his dead body was taken to
graveyard in haste for burial. PW-25 (Rahis Khan), a consultant with
Intazimia Committee, Muslim Kadimi Kabristan, Kewal Park Road,
Azadpur, became suspicious and called the PCR. Before the PCR could
arrive, the individuals who had brought the body fled the spot. The
child had injury marks on the body. In the post-mortem examination
report (Ex.PW15/A), after observing several injuries on the body, PW-
15 (Dr.V.K.Jha) was of the opinion that cause of death was combined
effect of hemorrhagic shock and asphyxia consequent to repeated blunt
forced impact diverted upon the body. Post-mortem findings were
consistent with repeated assault as evident from the injuries of different
durations; time since death was opined approximately five days. The
cause of death suggested by the expert was not challenged in the cross-
examination. Apparently, it was a case of culpable homicide.

8. PW-24 is Nazma Khatoon, victim’s mother. In her court
statement, she informed that Shabir (who had his maternal uncle’s
residence at her native place) brought Moim to Delhi to educate and
teach him. She however did not implicate the appellant or co-convicts
for inflicting injuries to her son during his stay at Delhi. She rather
informed that whenever she had conversation with Moim on phone, he
always told her that he was ‘well’. After coming to know from the
villagers about Moim’s death, she along with her mother-in-law came to
Delhi to perform his last rites. She did not attribute any role,
whatsoever, to any of the convicts for her son’s death. Learned
Addl.Public Prosecutor was permitted to put leading questions as the

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witness was not providing complete details. She informed that her other
son Nasim had also come to Delhi along with Moim; Nasim was deaf
and dumb. She denied if both the children were brought by the appellant
to educate and teach them at Delhi. She volunteered to add that it was
Shabir who had brought them to Delhi. She further denied that during
conversation with Moim, he had informed her that he was engaged in
the work of making ‘bindis’ and that Kallimulah (the appellant) used to
frequently thrash him. Again, she volunteered to state that he had
informed that Shabir was keeping him well. Addl. Public Prosecutor
after seeking court’s permission, cross-examined the mother. In the
cross-examination, she denied if the appellant was related to her. She
emphatically stated that she even did not know him. When confronted
with her statement Ex.PW24/PX1, she denied the contents recorded
therein. She even declined to identify the appellant in the court.

9. No extraneous motive can be attributed to the mother to spare the
appellant for the alleged crime. She being the victim’s mother must be
interested to bring the real offender to book, she is not expected to be
won over by the appellant for any consideration. Needless to state, she
completely exonerated the appellant.

10. PW-21 Khanija Khatoon, deposed that it was Shabir who had
brought her grandson Rajav, aged around 8/9 years to Delhi to provide
proper education. She also deposed that during her conversation with
Rajav on telephone, he always informed her that he was being kept
properly by Shabir. She came to Delhi on the call of Delhi Police after
Moim’s murder. Rajav was at Ibrahim Pur that time and when she saw
him there, he had injury marks on his body. On enquiry from Rajav

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about the injuries, he informed that it was the appellant who had given
him beatings. In the cross-examination, she fairly admitted that the
appellant was neither known nor related to her.

11. PW-21’s deposition is in the nature of hearsay evidence; no
injuries were inflicted on the person of Rajav or Moim in her presence.
She did not implicate the appellant-Kalimullah for inflicting injuries to
Moim. It is relevant to note that PW-22 (Rajav Ali) was medically
examined vide MLC PW-13/B on 17.04.2011, PW-13 Dr.Neeraj
Chaudhary informed that as per local examination, no fresh injuries
were seen on his body. It is not, thus, clear as to when the alleged
injuries were caused to Rajav and if so by whom.

12. The prosecution further examined another child PW-40 (Syed
Ansari), aged around 11 years. At the time of his examination learned
Presiding Officer observed that the witness was smelling
tabacoo/gutkha. The child witness completely exonerated the appellant
and did not assign any role, whatsoever, in causing victim’s death. He
was examined in question-answer form. In response to the questions
put to him, he informed that he had come to Delhi alone to study;
Shabir used to teach him at his house without charging any fee. Learned
Addl. Public Prosecutor was permitted to put leading questions as the
child did not disclose the complete facts. The witness denied to have
made a statement under Section 161 Cr.P.C. (Ex.PW40/PX1) to the
police. He denied if he used to work in the appellant’s factory along
with Boka, Moim and Kalim; he denied if the appellant used to get
work done from them from 7:00-8:00 a.m. to 12:00-1:00 AM
(midnight) and used to give beatings. He denied if the appellant had

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given beatings with a hot iron rod on Rajav’s hip or that the appellant
used to give them beatings with stapler, iron rod and ‘dal-gotni’. He
further denied that on 15.04.2011, the appellant had beaten Moim tied
his hands and feet with a rope and had hit his head against the wall
several times as a result of which he became unconscious. He further
denied if the appellant had hit Moim’s chest with a ‘sill-batta’ as a
result of which Moim expired at midnight. Learned Addl. Public
Prosecutor sought court’s permission to cross-examine the child as he
was a hostile witness. In the cross examination, he denied if he was a
tutored witness at Shabir’s behest. He declined to identify the appellant
to have any acquaintance with him.

13. In the cross-examination, PW-40 merely admitted the suggestion
that Rajav had left the factory to go to Shabir due to fear of beatings by
the appellant. He, however, did not testify if the appellant had given
beatings to Rajav any time in his presence. The deposition of the child
witness is of no benefit to the prosecution

14. Next comes the testimony of PW-22 (Rajav Ali), aged around
nine years in question-answer form. In his court statement, he disclosed
that after coming to Delhi along with Shabir, he stayed with him. He
disclosed that only for few days, he had lived at the appellant’s
residence. Thereafter, he was made to flee after beating him. (Usne
muje maar peet kar bhaga diya). Shabir had got him medically treated
and he incurred lot of expenses for his treatment. In response to the
question ‘Tum kitni baar Delhi Aaye’, the witness responded that he
visited Delhi twice. During his first visit, the appellant did not give him
beatings; he was beaten during the second visit. In answer to the

Crl.A.1502/2013 Page 8 of 16
question ‘tum Kalimullah ke pass kya kaam karte the’?; the witness
informed that ‘main Kalim ke pass bindi ka kaam karne ke liye aaya’.
He further disclosed that the appellant used to give him `10/- and his
brother used to give him `20/-. In response to the question ‘tumne
Kalimulla ke yahhan kitne din kaam kiya’? The witness stated that
‘maine uske yahan das din kaam kiya. Usne mujhe lohe se daga. Uske
baad Shabir ne mera ilaj karaya’. He also disclosed that the appellant
had inserted an iron pipe in his private part and he was unable to even
walk; it was Shabir who took him to the toilet. To the question ‘tum ko
wahan lal mirch bhi dali thi’? The witness replied ‘Ji. Kalimullah ne
dali thi. Again, he said ‘Shabir ne hi ilaj karaya tha’. The witness was
specifically asked if he knew Moim and whether he lived with the
appellant? The witness stated that after his departure, Moim was beaten.
He, however, added that he (Moim) was not beaten in his presence.

15. In the cross-examination, the witness was confronted with
statement (Ex.PX-3) under Section 161 Cr.P.C. where there were no
mention that the appellant had caused any injuries to him with a hot iron
rod or had put red chillies. When specifically asked as to what was
inflicted on his head; the witness disclosed that it was patri” (wooden
plank). He was confronted with his statement Ex.PX-3 where there was
no mention if the appellant had hit him on his head. He further admitted
that the police had conversation with them outside the court and had
informed as to what was to be stated in the court. He denied the
suggestion that the appellant had not beaten him.

16. On scrutinizing the testimony of the child witness, it emerges that
he did not attribute any role to the appellant in causing injuries to

Crl.A.1502/2013 Page 9 of 16
Moim. The witness was evasive to respond if Moim used to live with
the appellant. His testimony reveals that he was given beatings at some
stage by the appellant. It has, however, not come on record as to when
the beatings were given. It is unclear if any complaint was lodged by
the child or his parents or maternal uncle Shabir who had got him
medically treated against the appellant. No medical record of the child’s
treatment has been produced on record. The victim’s grandmother PW
Khanija Khatoon (PW-21) did not corroborate his statement if any
information was ever conveyed by her grandson about the beatings
given by the appellant to him. As observed above, at the time of
medical examination on 17.04.2011, the child Rajav Ali did not have
any fresh injury on his body. The child informed about his visits twice
to Delhi and no beatings were given to him during his first visit. Again,
it is not clear as to what was the duration of his first visit and what was
at the time of second visit. No charge for inflicting injuries to PW-22
(Rajav Ali) was framed in the present proceedings.

17. No other witness, whatsoever, has been examined to connect the
appellant with the victim’s murder. The allegations that the appellant
committed carnal intercourse with the victim remained unsubstantiated
and it resulted in appellant’s acquittal under Section 377 IPC.

18. The prosecution examined several witnesses to prove that
the appellant was guilty of commission of offence under Section 201
IPC for causing disappearance of evidence with an intention of
screening the offence from legal punishment. Again, the evidence
adduced on this aspect is highly deficient and no positive evidence has
emerged to infer if any overt act was done by the appellant in causing

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disappearance of the evidence. PW-25 (Rahis Khan), who had
suspected something foul with the body of the child brought at the
graveyard by a group of 20/22 persons on 16.04.2011 informed the
PCR. He, however, did not depose as to who were the individuals who
had brought the body of the child to the graveyard or if the appellant
was one of them. PW-26 (Rahis Ahmed), appellant’s landlord, had let
out the ground floor of house No.F-280 to the appellant about 4/5
months prior to the occurrence. He was, however, unable to give details
of the family members or the children who lived with him. He did not
implicate the appellant for any crime stating that on 16.04.2011 he had
gone to secure the admission for his son in a school and was not aware
of the incident. In the cross-examination by the learned Addl.Public
Prosecutor, he denied the contents of the statement (Ex.PW-26-PX1) to
have been recorded by him before the police. He categorically denied if
in the night intervening 15/16.04.2011 at about 1:00 am (midnight),
while returning from the house of his relative, when he reached House
No.280; after hearing hue and cries of a child; he knocked and inquired
from the appellant. He further denied if he was informed by the
appellant that one of the children had become ill and he was being
treated by him in spiritual manner. He denied if the appellant did not
open the door and he went to his house. He further denied if on the said
day at around 3-3:30 p.m. many public persons had gathered in front of
the appellant’s house and when he enquired from the co-convict
Khallillulah, he responded that the child who was ill had expired. He
further informed that the appellant had gone to attend the morning
prayers. He also denied if the appellant was among those who had

Crl.A.1502/2013 Page 11 of 16
brought the body of the child to the graveyard. The witness even did not
recognize co-convict Shabir and Abdul Hasid. Apparently, the
testimony of this witness does not implicate the appellant in the crime.

19. The prosecution examined PW-30 (Mohd.Motiur Rehman) who
had joined the procession to the graveyard on 16.04.2011. He deposed
that Shabir and Hashim had informed him that a boy had expired; they
asked him to arrange a vehicle. Thereafter, he made a call to a driver
and vehicle make TATA came there; it was parked near the bus stop
No.115. He did not claim if the appellant was present at the spot or that
he had any conversation with him any time. He did not elaborate as to
whom the telephone call was made; who was the driver and what was
the number of the vehicle that arrived at the spot. With the court’s
permission leadings questions were put to him. He denied if on
16.04.2011 at about 3:30-4 p.m. the co-convict Khallillulah informed
him to that a child had died due to illness at the appellant’s house. He
further denied if he had gone to the appellant’s house No.F-280, JJ
colony and had seen the co-convict Khallillulah, Shabir and
Mohd.Hasib, giving bath to the dead body or that when he entered the
room, he became suspicious. He denied that at the burial ground co-
convicts were in haste to burry the body. The witness even refused to
identify the appellant and his brother co-convict Khallillulah; he,
however identified Abdul Haseeb and Shabir. In the cross-examination,
he denied the contents of the statement (Ex.PW-30/PX1) completely to
have been given to the police. PW-31 (Chakkan Ahmed) in similar
circumstances did not state any incriminating circumstance against the
appellant.

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On examining the testimonies of the above noted witnesses, it
reveals that none of them has supported the prosecution in its entirety.
They all have resiled from their statements recorded under Section 161
Cr.P.C. None of them has assigned any role whatsoever to the appellant
in the crime. None of them saw the appellant in the victim’s company
before he met with death. Their evidence is of no consequence to base
appellant’s conviction either under Section 302 or 201 IPC.

20. We are now left with the statements of PW-32 (Balwan) and PW-
33 (Kamlesh Kumar). Learned Addl.Public Prosecutor urged that from
the statements of PWs 32 and 33 it is crystal clear that it was the
appellant who had made a telephone call to arrange the vehicle used for
transporting the body of the child to the graveyard. We do not think so.
PW-33 (Kamlesh Kumar) in his court’s statement informed that on
16.04.2011, his owner Balwan had asked him to take the vehicle
bearing No.HR-60-0334 make Tempo/TATA 407, to Wazirpur, JJ
Colony for taking a funeral procession to the burial ground at Azadpur;
he reached at 115 bus stop, JJ Colony, Wazipur at 4:30 p.m. and he
took the coffin along with 15-20 persons to Azadpur Burial ground.
After collecting hire charges, he came back to the office. PW-33’s
deposition does not reveal as to who had paid the hire charges; who had
met the witness and who were the individuals present in the procession.
PW-33 did not claim if the vehicle was taken to appellant’s residence at
F-280, JJ Colony, Wazirpur. This witness did not identify the appellant
or co-convict in the court to be the individuals present at the time of
transportation of the body to the graveyard. PW-32 (Balwan) merely

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informed the court that on 16.04.2011, the appellant had sent a request
to his ‘office’ seeking a vehicle at JJ Colony, Wazirpur for taking a
funeral procession and the hire was fixed at `800/-. After about 3-4
p.m., he sent two vehicles at the given address; one vehicle was
returned due to insufficient numbers of individuals to join the funeral
and the vehicle bearing No. HR-60-0334 was retained. Kamlesh who
drove the vehicle returned from the burial ground at about 6:00 p.m.
Again, this witness was not categorical to inform if the appellant was
acquainted with him or that he had contacted him to send any vehicle.
He also did not clarify as to by what mode he had received the request
from the appellant for the vehicle or as to which place it was to be sent.
It is also unclear if the request was received personally or by some
official in the office. The testimony of this witness is in contradiction
to PW-30 (Mohd.Motiur Rehman)’s statement. As per his testimony, in
response to a call to the driver for the vehicle, vehicle make TATA
came and it was parked near the bus stop No.115. PW-30
(Mohd.Motiur Rehman) did not claim if the request for vehicle was
made at the appellant’s behest. No Call Details Record was collected
during investigation to ascertain if the appellant was in touch with any
individual at the relevant time and where was his location. No
inference, whatsoever, can be drawn that it was the appellant who had
arranged the vehicle for transportation of the body to the graveyard. No
other incriminating circumstance has surfaced to point an accusing
finger against the appellant.

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21. The prosecution case is full of inconsistencies and contradictions.
The evidence adduced to bring home the appellant’s guilt is highly
scanty; no credible evidence has been collected to prove and establish
as to when the appellant had brought the victim or the other children
from Bihar to Delhi; when he had employed any of them in a hazardous
business or had exploited them. At no stage, the victim or the other
children or their family members ever complained that the children
were ill-treated/maltreated by the appellant or that they were being
sexually assaulted or given beatings. No MLC has been produced to
ascertain if any injuries were caused by the appellant to the victim or
the other children. Contrary to that, children Sayeed Ansari, Rajav Ali
and victim’s elder brother were medically examined vide MLC’s
Ex.PW-13/A to Ex.PW-13/C on 20.04.2011, 17.04.2011 and 20.4.2011
respectively; they did not have any ‘fresh’ injuries on their bodies, as
alleged. PW-14 (Dr.Deepak Chugh) ruled out any sexual assault on
their person at the time of their medical examination on 25.04.2011 vide
MLC Ex.PW14/A to Ex.PW-14/C. FSL report (Ex.PW42/L) is of no
assistance to the prosecution. As per this report, blood could not be
detected on Exhibit ‘1’ (one dirty small sized shirt’ recovered from the
spot); Exhibit ‘6’ (one iron pipe with rusty brownish stains described as
‘Iron gas stove pipe’); Exhibit ‘7’ (two wooden pieces described as
‘pieces of Danda’); Exhibit 8 (one stapler) and Exhibit 9 (one small and
one big piece of stone described as ‘Sil and Batta’). Apparently, the
crime weapons with whom the victim has allegedly inflicted injuries did
not have any bloodstains. Semen could not be detected on Exhibit 3 i.e.
one wet foul smelling cotton wool swab described as ‘Anal swab’.

Crl.A.1502/2013 Page 15 of 16

22. The appellant was not present at the graveyard till the sending of
rukka (Ex.PW42/A) at 10.40 p.m. The Investigating Agency did not
collect any document to show if the appellant was carrying on any
business of ‘bindi making’ on 16.04.2011 and if so since when. It is
also not clear as to how many workers were employed by the appellant
and what kind of machinery was used therein. No books of accounts
for the alleged business being carried out by the appellant were
collected. No incriminating circumstance connecting the appellant with
the crime has been proved beyond reasonable doubt. Gaftoor, from
whose house two children were allegedly recovered, was not produced
and examined. His complicity in the crime was not investigated. It is
not clear as to who was in the victim’s company soon before he suffered
fatal injuries. Resultantly the appellant’s conviction on the basis of mere
suspicion, with no acceptable and legal evidence on record, cannot be
sustained.

23. The appeal is, thus, allowed. The conviction and sentence
recorded by the Trial Court are set aside. The appellant be released
forthwith if not required to be detained in any other case.

24. Copy of this order be sent to the concerned Jail Superintendent
for information and necessary action. Trial court record be sent back
along with a copy of this order.

S.P.GARG, J.

C.HARI SHANKAR, J.

NOVEMBER 25, 2017/sa

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