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Whether electronic justification is accessible in deficiency of certificate as per S 65B of justification Act

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD

APPELLATE SIDE JURISDICTION

CRIMINAL APPEAL NO. 432 OF 2012

1. Balasaheb Gurling Todkari,
Age. 51years, Occ: Agriculture,

2. Popat Dattu Mane,
Age. 55 years, Occ: Agriculture,

3. Shivaji Tulshiram Koyalkar,
Age. 58 years, Occ: Agriculture,
Nos. 1 to 3 R/o. Ambika Nagar,
Bale, Tal. North Solapur,
District: Solapur.

4. Chandrakant Shivaji Shinde,
Age. 56 years, Occ: Agriculture,
R/o. Bijapur Naka Zopadpatti,Solapur.
(at benefaction lodged in Yerwada Central Jail, Pune) … Appellants
(Orig. Accused Nos. 5 to 8 )

VERSUS

The State of Maharashtra,
At a instance of Foujdar Chawadi
Police Station, Solapur,
District : Solapur…. Respondent

Shri U.R. Agandsurve, Advocate for appellant Nos. 1 & 3
Shri Ritesh Thobde, Advocate for appellant Nos. 2 and 4
Shri A.S. Shitole, APP for respondent State.

WITH

CRIMINAL APPEAL NO. 464 OF 2012

Revansidha @ Bapu Gursiddhappa Loni,
Age: 44 years, Occ: –
R/o. 194/5, Gurukrupa Mitranagar,
Samrat Chowk Budwar Peth,
District: Solapur,
At benefaction Yerwada Central Jail,Pune. … Appellant

(Orig. Accused No.1)

VERSUS

The State of Maharashtra. — Respondent

Shri D.G. Khamkar, Advocate for appellant
Shri A.S. Shitole, APP for respondent State.

WITH

CRIMINAL APPEAL NO. 597 OF 2012

1. Navnath Bhikuji Salunkhe,
Age 25 years,
R/o. Ambika Nagar, Bale,
Tal. North Solapur,

2. Ambadas Hanumantu Talathi,
Age 32 years,
R/o. Shama Nagar Zopadpatti,
Modi, Solapur.

(at benefaction lodged in Yerwada Central Jail, Pune.) … Appellants (Orig. Accused Nos.9 and 11)

VERSUS

The State of Maharashtra,
At a instance of Foujdar Chawadi
Police Station, Solapur,
District : Solapur…. Respondent

Shri Ritesh Thobde, Advocate for appellant No.1
Shri U.R. Agandsurve, Advocate for appellant No.2
Shri A.S. Shitole, APP for respondent State.

WITH

CRIMINAL APPEAL NO. 693 OF 2012

Sanjay Narayan Zingdekar,
Age 26 years,
Residig during L Modi Khana,
Zopadpatti, Solapur.
Presently lodged in Yerwada

Central Prison, Pune. … Appellant (Orig. Accused No.10)

VERSUS

The State of Maharashtra,
Through Foujdar Chawadi
Police Station, Solapur. … Respondent

Shri Madhav J. Jamdar, Advocate for appellant
Shri A.S. Shitole, APP for respondent State.

WITH

CRIMINAL APPEAL NO. 1112 OF 2012

Malang Shankar Shende,
Age – 52 years, Occu. – Driver,
R/at – Garibi Hatav Zopadpatti No.2,
Bijapur Naka, Solapur,
At benefaction Yerwada Central Prison, Pune.. … Appellant
(Orig. Accused No.4)

VERSUS

The State of Maharashtra. … Respondent

Shri P.G. Sarda, Advocate for appellant
Shri A.S. Shitole, APP for respondent State.

AND

CRIMINAL APPEAL NO. 169 OF 2013

Basavraj Shivsharan Desai … Appellant (Orig. Accused No.3)

Versus

The State of Maharashtra
through Faujdar Chavdi Police Station — Respondent.

Shri Swapnil Ovalekar, Advocate allocated by Legal Aid Committee to paint appellant
Shri A.S. Shitole, APP for respondent State.

CORAM :- SMT. V. K. TAHILRAMANI AND
INDIRA K. JAIN, JJ.
RESERVED ON : 12TH MARCH, 2015 PRONOUNCED ON : 09TH JUNE, 2015 JUDGMENT [ Per Indira K. Jain, J. ] :

These appeals arise out of visualisation and sequence antiquated 21st March, 2012 upheld by a schooled Ad-hoc Additional Sessions Judge, Solapur in Sessions Case No.60 of 2006. By a pronounced visualisation and order, conference Court convicted a Appellants 4 of 51  strange Accused Nos.1 and 3 to 11 underneath sections 364, 365, 368, 302, 120-B, 201 review with 149 of a Indian Penal Code.

The sum of a punishment underneath several sections are as under:

Accused Nos. Under Sentence Sections

1 and 3 to 11 120-B of a Rigorous seizure for 5 Indian ig Penal years and excellent of Rs.5,000/-

Code any in default 1 year 3 months imprisonment.
1 and 3 to 11 364 review with Rigorous seizure for 10

149 of a years and excellent of Rs.5,000/-
Indian Penal any in default imprisonment
Code of 2 and 1/2 years each.

1 and 3 to 11 368 review with Rigorous seizure for 3
149 of a years and excellent of Rs.1,000/-

Indian Penal any in default further
Code seizure of 9 months each.

1 and 3 to 11 302 review with Imprisonment for life and excellent 149 of a of Rs.1,000/- any in default Indian Penal seizure for 6 months. Code 1 and 3 to 11 201 review with Rigorous seizure for 2 149 of a years and excellent of Rs.1,000/-

Indian Penal any in default further
Code seizure for 6 months each.

2] Accused No.2 Basavraj @ Basu Gurusidhappa Loni was clear by a schooled conference Judge of all a offences referred above.

3] For a consequence of preference we shall impute a Appellants as they were referred before a conference Court.

4] The assign box quickly staid is as under:

That, Shakuntala and Brahrambika were a wives of Gurusidhappa. Shakuntala and Gurusidhappa had dual sons and dual daughters viz. Mallinath, Chinappa, Shantabai and Sridevi, Basavraj @ Basu Gurusidhappa Loni, Revansidha @ Bapu Gurusidhappa Loni, Nagratna and Mahadevi, were dual sons and dual daughters of Mallinath from Brahrambika. Victim Rajesh was a usually son of Mallinath and complainant Sunanda.

5] According to prosecution, Complainant Sunanda and her son Rajesh were staying on a second floor, Revansidha alongwith his family was staying on a belligerent 6 of 51  building and Basavraj was staying on a initial building of a same building situated during Budhwar Peth, Samrat Chowk, Solapur.

They were using business in a name and character “Gurusidhappa M. Loni” trade in prolongation food grains, chillies harsh machineries and their gangling parts. They had a emporium and they were also using board “Vijay” and “City Palace”. It was a corner family business looked after by Basavraj, Revansidha and Rajesh.

6] It appears that Rajesh used to leave home for bureau during around 09:00 am. In a afternoon during 02:00 pm, he was going home for lunch. Immediately after lunch he used to go to bureau and afterwards returning during about 09:00 p.m. or so after shutting a factory. Some time, Rajesh was going for cooking with friends outward in hotel and returning home.

7] It is a assign box that Revansidha @ Bapu and Basavsidha @ Basu used to lift argue with Rajesh. It was relating to business, properties and parking of vehicles.

There were dual 4 wheelers i.e. one Ambassador Car and one 7 of 51  Indica Car that were to be used by them for business purpose. It is purported that Rajesh was denied use of vehicles for business purpose. Both Revansidha and Basavsidha were winning Rajesh in business. As use of automobile was denied to him, Rajesh purchased a Santro Car before 8 months of a incident. Revansidha and Basavsidha did not like squeeze of Santro Car by Rajesh. There was rumpus between them and Rajesh on squeeze of new vehicle. Both a brothers were angry with Rajesh as he used to park his automobile in a bungalow.

8] On 17th September, 2005 during around 09:00 pm, Rajesh came home. He was served food. He did not like food and so during around 10.30 p.m., he went to hotel to move a food.

While he was returning, Revansidha called Rajesh and asked him to mislay his vehicle. There was prohibited sell between Revansidha and Rajesh on parking of car. That time, Revansidha slapped Rajesh and threatened to attack him.

Sunanda intervened and took Rajesh home. Revansidha upheld inauspicious remarks opposite Sunanda. Wife of Revansidha 8 of 51  also came there and attempted to take her father inside a house, yet Revansidha slapped her too.

9] On 19th September, 2005, as usual, Rajesh was to leave for bureau during about 09:00 a.m. He perceived telephonic call from Revansidha @ Bapu that he had depressed down in a bureau and postulated injuries to his leg. Rajesh immediately rushed to a factory. It was sensitive to mom of Revansidha also. When Rajesh reached a factory, Revansidha told him that he was feeling silly and therefore, he fell down.

Thereafter, Rajesh returned home.

10] On 20th September, 2005 (Tuesday) during around 09:00 a.m. Rajesh went to factory. He came home for lunch during 2.00 p.m. and during 2.30 p.m. went behind to factory. Being Tuesday, Puja was to be achieved during a residence of Rajesh. So, while withdrawal a house, he asked his mom to arrange for Puja by a time he earnings from factory. Accordingly Sunanda finished arrangements for Puja. Till 08:00 pm, Rajesh did not come to a house. So, Sunanda called Rajesh on his mobile phone. It 9 of 51  was switched off. Sunanda was astounded as Rajesh was never gripping his mobile on switched off mode. She was disturbed and attempted to hit during a shop. Satish was a menial operative during a shop. He perceived call from Sunanda. She inquired from him about Rajesh. Satish replied that Rajesh and Bapu @ Revansidha had left to a emporium in hunt of mobile. After some time, again Sunanda called during a shop. Satish sensitive her that Rajesh had not returned to a shop.

ig Third time, Sunanda called and that time, Satish told her that Rajesh had left alongwith his friends. Sunanda was watchful for her son compartment 10:00 p.m. She inquired from Satish, possibly there was any argue between Bapu and Rajesh. Satish told her that Rajesh had left with his friends in a automobile and Bapu had left for home.

11] Sunanda afterwards sensitive Revansidha on phone that Rajesh had not come back. It is purported that Revansidha got angry and told her that Rajesh was not a child and he contingency have left with his friends. As no one was assisting Sunanda to find out locale of her son Rajesh, she phoned her nephew Gururaj and sensitive him that Rajesh was blank and 10 of 51  she was disturbed about him. Thereafter, Gururaj alongwith his crony went in hunt of Rajesh. They had been to a residence of Sachin Ashtekar one of a friends of Rajesh. But Rajesh was not found any where.

12] One Qadar was a motorist operative with Rajesh.

Sunanda inquired about Rajesh from Qadar. He told her that Rajesh had left with Revansidha on a prior night to squeeze a mobile.

13] Sunanda afterwards went to a residence of Revansidha.

Again, she sensitive him that locale of Rajesh could not be traced. That time, Revansidha and his hermit Basavsidha got angry and did not assistance Sunanda in hunt of locale of Rajesh.

14] Sunanda afterwards went to Tarti Naka Police Chawki and lodged blank report. Initially PSI More inquired into a blank report. Later, it was handed over to PI Shankar Chavan (PW 37). On a news of Sunanda, Missing Entry No.25 of 11 of 51  2005 was recorded. During inquiry, PI Chavan interrogated Complainant Sunanda. It was suggested that due to skill dispute, visit quarrels and brawl on parking of vehicles, Rajesh was kidnapped by Revansidha and Basavraj on 20 th September, 2005 during around 07:00 p.m. from a premises of Loni Firm situated during Solapur. On 19 th November, 2005, censure was lodged by Sunanda. PI Chavan accessible censure lodged by Sunanda and forwarded a same to Foujdar Chawadi Police Station, Solapur.

15] On a basement of news of Sunanda, Crime No.261 of 2005 was purebred during Foujdar Chawadi Police Station for a offences punishable under Sections 364, 365, 120-B read with 34 of a Indian Penal Code. Investigation was entrusted to PI Chavan.

16] During investigation, I.O. visited mark from where Rajesh was kidnapped. Spot Panchanama was drawn in a participation of dual Panch Witnesses, Satish Patil and Pandit. It was found that Revansidha and Basavraj were absconding. In 12 of 51  search, Revansidha was found in a board during Hubli. On 20 th November, 2005, he was taken in custody.

17] On 21st November, 2005, dual military officials were sent to Pune to detain Basavraj Desai. Basavraj Desai was arrested and brought to Solapur. In serve investigation, dual mobile phones were recovered from Revansidha. They were seized and a seizure Panchanama was drawn in a participation of Panchas.

18] On 22nd November, 2015, both a indicted were arrested and constructed before a schooled Judicial Magistrate First Class, Solapur. The military control of these indicted was sought.

19] On 23rd November, 2005 when Basavraj-Desai was in military control one mobile found with him was seized. On a same day, Basavraj-Desai had shown mark to military where they got down for squeeze of mobile. During inquire Basavraj-

Desai named some other persons as accused. One mobile 13 of 51  phone was seized from Padmakar Waghmode. One Tata Sumo was seized from Malang Shende. During review hunt of residence of Revansidha was taken. One revolver was found in his house. It came to be seized underneath Panchanama. A motorcycle of Chandrakant Shinde, a mobile from Umesh Popat were recovered. Supplementary matter of Sunanda was recorded. Many other witnesses were examined in a march of investigation.

20] When review of C.R. No.261 of 2005 purebred during Foujdar Chawadi Police Station, Solapur was in progress, CPI Najirsab Mokashi trustworthy to Baswan Bagewadi Police Station, perceived a telephonic call on 21 st September, 2005 during 03:00 pm from PSI, Kolar Police Station that a upheld physique of an opposite chairman was found fibbing on a range of encampment Shirnal in a land belonging to Gurupudappa. On receiving message, CPI Mokashi went to a spot. He took over review from PSI, Kolar Police Station, that was within a bureau of Baswan Bagewadi Police Station. CPI Mokashi drew Inquest Panchanama of a upheld physique of 14 of 51  opposite chairman aged between 25 and 30 years. Several injuries were beheld on a upheld body. CPI Mokashi accessible statements of witnesses who were benefaction on a spot. One Green Plastic Rope, earth churned with blood and elementary earth were seized from a spot. Accordingly, Spot Panchanama was drawn before a Panchas. CR No.175 of 2005 under Sections 302 and 201 of a Indian Penal Code was purebred during Kolar Police Station. PI Chavan collected a papers of CR No.175 of 2005 from Kolar Police Station. The print of upheld physique was shown to mom of Rajesh and other witnesses.

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They identified a same as of Rajesh.

21] In serve review blood stained garments and ornaments on chairman of defunct Rajesh, identified by complainant Sunanda were seized. Investigating Agency prepared a CD of visits to all a places. CDR of a calls from mobiles of indicted was collected. In all 11 indicted were found endangered and they were arrested. As many as 30 opposite Panchanamas were drawn. The seized muddemal articles were forwarded to CA. On completing investigation, charge-

15 of 51  piece was submitted to a Court of Judicial Magistrate First Class, Solapur who in spin committed a box for conference to a Court of Sessions during Solapur.

22] Charge came to be framed opposite a Appellants vide Exhibit 39. Appellants indicted pleaded not guilty to a assign and claimed to be tried. Their counterclaim was of sum rejecting and fake implication. Prosecution examined in all 37 witnesses. On going by a justification of assign witnesses and conference a parties, schooled Adhoc Additional Sessions Judge convicted and condemned a Appellants as staid in divide No.1 above. Hence these appeals.

23] We have listened a schooled Advocates for a Appellants and a schooled APP for State. After giving a endangered care to a contribution and resources of a case, arguments modernized by a schooled Advocates for a parties, a Judgment delivered by a conference Court and a justification on record, for a reasons staid below, we are of a opinion that assign has unsuccessful to move home a shame of a 16 of 51  indicted over reasonable doubt and a impugned visualisation and sequence of self-assurance and visualisation does not means for a reasons staid hereinbelow.

24] Needless to state that in a box of murder, disdainful weight lies on a assign to settle that genocide of a tellurian being is caused. Further, a assign has to overrule by adducing arguable and convincing justification a luck of natural, random or suicidal genocide indicating totally a savage genocide over reasonable doubt. In a benefaction case, it can seen from a visualisation of a conference court, that no specific anticipating on a factum of savage genocide has been recorded. To infer that genocide in doubt was a savage genocide justification of a Medical Officer, who achieved Post Mortem on a upheld physique was essential. Prosecution in a possess believe chose not to inspect a Doctor who achieved a Post Mortem.

25] Prosecution examined PW-2 Vitthal Dalwai, PW-3 Sagarappa Jakkal, PW-24 Gurupadappa and PW-35 CPI 17 of 51  Mokashi, to settle that a genocide in doubt was insincere death. According to PW-2 Vitthal, Police visited their village. He saw that a upheld physique was fibbing in a array besides highway of Kirsyal encampment in a plantation of Gurupadappa. There were injuries on a conduct of a upheld body. Those injuries were substantially caused by attack with stones. PW-2 could not brand a upheld physique from a sketch shown to him yet staid that it was of a chairman of age organization of around 36 years or so.

According to PW-3 Sagarappa, who acted as Panch on Inquest Panchanama, he saw a upheld physique of a chairman aged about 25 years or so fibbing between Krisyal encampment and Nirgundi village. It was in a plantation of PW-34 Gurupadappa. He staid that one cosmetic wire was fibbing nearby a upheld body. He did not see a blood fibbing on spot. He saw one damage on a conduct of upheld body. He staid that Inquest Panchanama was drawn in his presence.

PW-34 Gurupadappa was a owners of margin in that upheld physique was found. He staid that on 20.09.2005, during 8.00 18 of 51  a.m. he had seen upheld physique of immature child in his land during encampment Krisyal on Bagewadi road. One gunny pouch and one cosmetic wire was also fibbing there. The justification of this declare creates doubt that a upheld physique was of Rajesh as he was found blank after 7.00 p.m. on 20.09.2005.

Even differently from a justification of a above 3 witnesses, it can't be definitely staid that a upheld physique found in a margin of PW-4 Gurupadappa was a upheld physique of Rajesh.

PW-35 – CPI Mokashi was trustworthy to Baswan-

Bagewadi military hire during a applicable time. On 21.9.2005, during 3.00 p.m. he perceived a telphonic call from PSI Kolar Police Station that an occurrence of murder was reported. It took place on Baswan-Bagewadi – Nirgundi Road. On receiving information, he rushed to a mark and conducted Inquest Panchanama on a upheld body. CPI Mokashi staid that upheld physique was of opposite chairman aged about 25 to 30 years. He drew Inquest Panchanama in a participation of Panch witnesses.

The injuries that were found on a physique were mentioned in a Inquest Panchanama.

19 of 51  From Inquest Panchanama (Exhibit 224) a verbal justification of panch witnesses and a testimony of PW-35 CPI Mokashi, it is apparent that a upheld physique was not identified by any one of them. Prosecution, however, placed faith on a sketch of a upheld physique shown to PW-5 Sunanda mom of defunct Rajesh. She identified that a upheld physique shown in a sketch was of her son Rajesh. The garments and ornaments on a chairman of defunct that were seized during Kolar military hire were also shown to complainant Sunanda.

She identified a same as of her son Rajesh. On a basement of photos articles A to E and garments and ornaments of a deceased, assign attempted to contend that genocide was savage death. It is impending to note that a nylon wire was found nearby a upheld body. Except conduct injury, no other injuries were beheld on a upheld body. In such circumstances, hearing of a Doctor who achieved Post Mortem was pinnacle necessary. Non-examination of a Medical Officer creates doubt per a means and mode of genocide as homicidal.

20 of 51  Even if it is insincere for a impulse that a upheld physique that was recovered from a margin of PW-34 Gurupadappa was of a tellurian being and quite of Rajesh and a genocide was homicidal, that ipso facto would not soothe a assign from explanation that a indicted were thankful for causing a death.

26] There is no proceed justification in a matter. So distant as authorship of a indicted is concerned, assign box exclusively rests on vague evidence. On a law relating to vague evidence, schooled warn for indicted No.1 placed faith on Balwinder Singh Vs. State of Punjab1 and schooled warn for indicted No.10 relied on Dhan Raj @ Dhand Vs. State of Haryana2.

We have left by these authorities referred by schooled warn for accused. They echo a staid propositions of law on vague evidence.

It might be staid that for a crime to be proved, it is not compulsory that a crime contingency be seen to have been committed and must, in all circumstances, be valid by proceed 1 1996 Cri. L. J. 883 (Supreme Court) 2 2014 (6) SCC 745 21 of 51  or visible justification by examining before a Court those persons who had seen a commission. The corruption can be valid by vague justification also. The principal fact or “factum probandum” might be valid indirectly by means of certain inferences drawn from “factum probans” i.e. evidentiary facts. To put it differently, vague justification is not proceed to a infer in emanate yet consists of justification on several other contribution in emanate that taken together forms a sequence of resources from that a existence of a principal fact can be legally unspoken or presumed.

27] It has been consistently laid down by a Apex Court that where a box rests precisely on vague evidence, a deduction of shame can be fit usually when all a damning contribution and resources are found to be exclusive with a ignorance of a indicted or a shame of any other person. A authorised trend would serve uncover that for a self-assurance in murder box on vague evidence, following conditions contingency be over :

i) The resources from that a end of 22 of 51  shame is to be drawn should be entirely established.

ii) The contribution so determined should be unchanging usually with a supposition of a shame of a accused, that is, they should not be explainable on any other supposition solely that a indicted is guilty.

iii) The resources should be of a decisive inlet and tendency.

iv) They should bar each probable supposition solely a one to be proved.

v) There contingency be a sequence of justification so finish as not to leave any reasonable belligerent for a end unchanging with a ignorance of a indicted and it contingency uncover that in all tellurian probability, a act contingency have been finished by a indicted and a indicted alone.

28] Keeping in perspective a ratio laid down by a Hon’ble Apex Court, we have to inspect a vague justification on that faith is placed by a prosecution. In a benefaction case, assign has relied on a following damning circumstances, that according to a prosecution, infer a 23 of 51  shame of a indicted over reasonable doubt.

[a] Deceased was final seen in a association of indicted Nos. 1 and 3.

[b] Recovery of damning articles during a instance of indicted Nos. 1,3,4,9,10,11 and sons of indicted Nos. 6 and 8.

[c] Call Details Record (CDR) in honour of indicted Nos. 1,3,6 and 8.

[d] Motive opposite indicted No.1.

At a outset, it is to be mentioned here that PW-1, PW-20, PW-27 and PW-33, are a translators. Evidence of PW-10, PW-12, PW-13 and PW-26 is not of any assistance to a assign as they have been announced antagonistic and they have not upheld a prosecution.

29] [a] Deceased was final seen in a association of indicted Nos. 1 and 3 :-

On a law relating to speculation of Last Seen Shri Khamkar, schooled warn for indicted No.1 placed faith on Malleshappa Vs. State of Karnataka3 wherein a Hon’ble Apex 3 2008 ALL MR (Cri.) 280 (S.C.) 24 of 51  Court reason as under:-

“The business of final seen together does not by itself and indispensably lead to a deduction that it was a indicted who committed a crime. There contingency be something some-more substantiating connectivity between a indicted and a crime.

There might be cases where on comment of tighten vicinity of place and time between a eventuality of a indicted carrying been final seen with a defunct and a factum of genocide a receptive mind might be swayed to strech an overwhelming end that possibly a indicted should explain how and in what resources a plant suffered a genocide or should possess a shame for a homicide.”

In a box on hand,PW-4 Rahematulla Samiullah Qadri ( Exhibit 110) is a star declare on a speculation of final seen.Rahematulla was operative as Driver on a vehicles of a firm. In 2005, he was motorist with indicted No.1. He used to purify a vehicles and ensue to a residence of Revansidha.

He was also attending a domestic work of a family of indicted No.1. After attending domestic work, he was going to a emporium where indicted No.1 was using a flour mill. From 9.00 a.m. to 2.00 p.m. PW-4, Rahematulla was operative in a 25 of 51  flour mill. After one hour recess for lunch, he was returning to a emporium and remaining there compartment 8.00 p.m. or so.

It appears from a justification of PW-4 Rahematulla that on 20.9.2005, during around 7.30 p.m. he was sitting in front of a shop. Satish Huge ( PW-36) and other servants were lighting scent hang ( Agarbatti). That time, one chairman came with a mobile to a shop.

ig He showed that mobile to

Revansidha in his cabin inside a shop. Then Revansidha

called Rajesh. He asked PW-4 Rahematulla to keep watch on a emporium as he was move to squeeze another mobile.

PW-4 Rahematulla identified a chairman in a wharf who came with mobile. He was indicted No.3 – Basavraj Desai. It is staid by PW-4 Rahematulla that he saw Revansidha, Rajesh and Basavraj Desai afterwards move on feet towards Bhagwat Theater. At around 9.00 p.m. or so, Revansidha alone returned to a emporium and asked Rahematulla to mislay a motorcycle of Rajesh that was parked inside a emporium and to park a same outside. Accordingly, Rahematulla private a motorcycle of Rajesh from a emporium and parked it outside. Thereafter, they 26 of 51  hermetic a emporium and went away.

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In his serve evidence, Rahematulla staid that on 21.9.2005, during about 9.30 a.m. he went to a residence of Revansidha. Mother of Rajesh called him from second building while he was cleaning a car. So, Rahematulla went up. She enquired from him possibly he was meaningful anything about Rajesh as he had not returned home given night. That time, Rahematulla sensitive her that on a prior dusk Revansidha, one chairman and Rajesh had proceeded together towards Bhagwat theater. Thereafter, Sunanda, mom of Rajesh, came down and finished enquiry from indicted No.1 Revansidha.

Another declare on a speculation of final seen together examined by a assign is PW-36 Satish Huge. He was an worker in Gurusiddhappa Loni firm. On 20.09.2005, in a dusk during 7.00 p.m, or so, he was in a shop. He staid that he alongwith Rajesh, Bapu Loni and one worker Qadar was benefaction in a shop. As heater was not working, he went 27 of 51 to Dnyaneshwar Electronics for removing a coil. At 7.30 p.m., he came behind to a shop. He was lighting scent hang (Agarbatti). One chairman came there with a mobile. He identified indicted No.3 Basavraj Desai in a wharf as a same person. He staid that a pronounced chairman had shown mobile to Bapu. Then Bapu called Rajesh. Three of them proceeded on feet towards Bhagwat Theater to see a mobile.

It appears from his justification that afterwards Bapu reached a emporium during around 9.30 p.m. Sunanda – mom of Rajesh called on phone and enquired about Rajesh. Satish picked adult a phone and sensitive her that Rajesh, Bapu and one chairman had left towards Bhagwat Theater for saying a mobile. He certified in undeniable terms in a endless cross-

examination that third time when mom of Rajesh called on phone and enquired about Rajesh, he sensitive her that Rajesh had left in a automobile alongwith his friends.

If justification of PW-5 complainant – Sunanda is looked into, it can be seen that on 20.09.2005, Rajesh had been to a residence for lunch during 2.30 p.m. He asked her to ready for Puja and told that he would come behind by 8.00 p.m. 28 of 51  As he did not lapse she attempted to hit him on mobile. His mobile was switched off. She was disturbed as Rajesh was never gripping his mobile on switched off mode. So, she phoned during a emporium during 9.30 p.m. PW-36 Satish perceived a phone.

When she enquired, he told her that Satish was taken by Revansidha to squeeze a mobile. Thereafter again, Sunanda phoned during a shop. Satish picked adult a phone. He sensitive her that Rajesh had left in a automobile with his crony and Bapu Malak had left for home.

It is poignant to note that a matter of these dual star witnesses PW-4 Rahemtullah and PW-36 Satish came to be accessible on 26.11.2005 i.e. after 2 months of a incident.

There is no wheeze in a whole justification of a witnesses including a questioning Officer to explain check in recording statements. Further admissions elicited in cranky hearing of PW-4 Rahemtulla and PW-36 Satish, clearly shows that final seen ceased to be a business opposite indicted Nos. 1 and 3 as according to witnesses and complainant, Rajesh had left with his crony in a automobile and indicted No.1 Revansidha returned to a house.

29 of 51  30] In this background, we reason that speculation of final seen is not determined by a assign opposite indicted Nos. 1 and 3. So distant as other indicted are concerned, it is not a assign box that defunct Rajesh was final seen in their company.

31] [b] Recovery of damning articles opposite indicted Nos. 1,3,4,9,10,11 and sons of indicted Nos. 6 and 8 :-

So distant as liberation of damning articles from a indicted is concerned, according to prosecution, following articles were recovered in pursuit to a information given by a accused.

Accused Number Item recovered
Accused No.1 [I] Two mobiles
[ii] 0.32 Bore Revolver and 5 bullets Accused No.3 A Mobile Accused No.4 [I] Tata Sumo [ii] one blade [iii] one Nylon Rope [iv] one breathe Accused No.6 One mobile from his son Umesh 30 of 51  Accused No.8 [I] One mobile from his son Ramesh [ii] One motorcycle Accused No. 9 [i]Shirt [ii]Pant Accused No.10 [I] Knife [ii] Gold ring [iii] Gold Chain [iv] Shirt.

Accused No.11 [I] Shirt
[ii] Pant

[iii] Sattur with blood stained mud

On a law relating to liberation of articles, particularly, under Section 27 of a Indian justification Act, schooled warn for indicted No.1 strongly relied on Salim Akhtar alias Mota Vs. State of Uttar Pradesh 4, schooled warn for indicted Nos. 5 to 8 and 9 to 11, placed faith on Vijay Kumar Vs. State of Rajasthan5.

In Wakkar and another. Vs. The State of Uttar Pradesh6 relied on by a schooled warn for indicted No.10, a Hon’ble Apex Court reason as under:

“The range of this sustenance was explained by a Privy Council in a good famous box of Pulukuri Kottaya and others v.

4 2003 Cri. L. J. 2302 (Supreme Court) 5 (2014) 3 Supreme Court Cases 412 6 2011 (3) SCC 306 31 of 51  Emperor, AIR 1947 PC 67, wherein it was reason that it is fallacious to produce a “fact discovered” within a territory as homogeneous to a intent produced. The fact detected embraces a place from that a intent is constructed and a believe of a indicted as to this, and a information given, contingency describe clearly to this fact. Information as to a past user, or a past history, of a intent constructed is not associated to a find in a environment in that it is discovered. Therefore, what is accessible is a place from where a polythene bag containing pistol and other articles was allegedly recovered. The fact that some militant organization had given a pistol and other articles to a appellant or a use would not be admissible.”

Keeping in perspective a staid law in honour of liberation of articles in pursuit to a information given by accused, under Section 27 of a Evidence Act, it would be essential now to cruise a assign evidence.

PW-7 Dinesh Suhas Pandit is a Panch Witness examined on a following 30 panchanamas accessible within a camber of 2 months by a questioning agency.

32 of 51  Sr. Date of Type of Panchanama Exhibit No. Panchanama No.2 21/11/2005 Common Arrest panchanama 125 of indicted No.1 Revansidha and indicted No.2 Basavraj and seizure of dual mobiles from indicted No.1 Revansidha Panchanama of mobile from indicted No.3 Basavraj Desai

4. 24/11/2005 Seizure Panchanama of Tata 133 Sumo and immature nylon rope

5. 26/11/2005 Seizure of Nokia 6600 mobile 134 from Sachin Waghmode 6 26/11/2005 Seizure Panchanama of 0.32 135 gimlet revolver and 5 bullets during a instance of Revansidha Loni 7 26/11/2005 Seizure Panchanama of mobile 136 of motorola association and motorcycle of Boxer association from Ramesh Chandrakant Shinde, son of indicted No.8 8 26/11/2005 Seizure Panchanama of mobile 137 of Nokia association from Umesh locks 9 28/11/2005 Memorandum Panchanama 138 with honour of blazing of certain papers – indicted No.2 Basavraj Loni 10 28/11/2005 Recovery Panchanama of 139 burnt papers – indicted No.2 Basavraj Loni 33 of 51  11 29/11/2005 Memorandum Panchanama 140 with honour to willingness to uncover blade – indicted No.4 Malang Shende 12 29/11/2005 Seizure Panchanama of blade – 141 indicted No.4 Malang Shinde 13 30/11/2005 Seizure Panchanama of 143 garments of indicted No.4 Malang Shende 14 30/11/2005 Seizure Panchanama of 144 garments of indicted No.9 Navnath Salunke 15 01/12/2005 ig Memorandum Panchanama 145 with honour to willingness to uncover blade – indicted No.10 Sanjay Zingadekar 16 01/12/2005 Seizure Panchanama of Knife 146 and garments – indicted No.10 Sanjay Zingadekar 17 01/12/2005 Seizure Panchanama of bullion 147 sequence – indicted No.10 Sanjay Zingadekar` 18 02/12/2005 Seizure of one American 148 solid bullion ring – indicted No.10 Zanjay Zingadekar 19 13/12/2005 Panchanama of opening and 149 again sealing of dual knives for display them to alloy 20 15/12/2005 Seizure Panchanama of 150 garments of defunct Rajesh Loni 21 13/01/2006 Arrest Panchanama of indicted 151 No.11 Ambadas Talathi 22 15/01/2006 Seizure Panchanama of 152 indicted No.11 Ambadas Talathi 34 of 51  23 16/01/2006 Memorandum Panchanama 153 with honour to willingness to uncover Sattur – indicted No.11 Ambadas Talathi 24 16/01/2006 Recovery Panchanama of 154 Sattur – indicted No.11 Ambadas Talathi 25 18/01/2006 Panchanama of opening and 155 again sealing of Sattur for display them to Doctor 26 19/01/2006 Seizure of Video CD prepared 156 by Videographer PW 30 Anand Arun Gangaji 27 19/01/2006 ig Panchanama of record of Call 157 sum of mobiles of Chandrakant Shinde, Popat Mane and Basavraj Desai perceived from IDEA Company 27 pages 28 19/01/2006 Seizure Panchanama of Airtel 158 Company call sum news 58 pages 29 19/01/2006 Seizure Panchanama of IDEA 159 association call sum news – 35 pages 30 19/01/2006 Seizure Panchanama of IDEA 160 association call fact news – 33 pages 32] Commenting on a demeanour in that articles were seized schooled warn for indicted submitted that no efforts were finished to get eccentric Panch declare and this itself is adequate to drop a justification of Panch witness. In 35 of 51  support thereof, schooled warn relied on Salim Akhtar alias Mota Vs. State of Uttar Pradesh (Supra), in that a Hon’ble Apex Court reason as underneath :

“P.W. 1, N.P. Rai, has staid that after reaching P.S. Lisari Gate, he had summoned dual open witnesses, namely, Vipin and P.W.3 Anuj Kaushik out of whom usually one has been examined in Court. P.W. 3 has deposed that he works as a photographer for a repository famous as ‘Sachi Duniya’. He had perceived a phone call from his bureau that there was a trade jam nearby Medical College and accordingly he started for a pronounced place on his scooter to take photographs. However, he saw some military crew nearby Lisari Gate Chaupal and inquired from them because they were hire there and on their seeking he accompanied a military party. He has certified that he mostly goes to a military stations in a city and he had been paid Rs. 640/- for holding a photographs yet he had not expelled any receipt for a same. The matter of this declare shows that he is a visit caller to a military stations and this might be on comment of a fact that a military might have been good him by seeking him to take photographs on those occasions in that holding of photographs was warn necessary. It is not probable to accept his matter that yet he was paid Rs. 640/- by a military for holding a photographs yet he did not emanate any receipt. P.W. 1 36 of 51  has certified that yet Lisari Gate locality was usually dual or 3 furlongs from a place from where liberation was finished yet no declare was summoned there. It, therefore, shows that a military finished no bid to get any eccentric open declare during a time when a purported liberation was finished during a indicating out of A-l and a usually open declare examined, appears to be a chairman who was not usually insinuate yet was also thankful to them.”

33] In a benefaction box contribution are identical. It is poignant to note that all disclosures, discoveries and even arrests have been finished in a participation of PW-7 Dinesh. He certified in interrogate that Faujdar Chawadi Police Station was during a stretch of 4-5 Kilometers from his house.

His justification shows that within a camber of dual months, he visited military hire for about 18 times. According to him, he used to lay in a emporium of his consanguine uncle. His consanguine uncle was using a Xerox/STD shop. The emporium used to open during 9.00 a.m. and tighten during 10.00 p.m. He staid that he was not paid income by proceed of income yet his uncle was progressing his family comprising his parents, hermit and himself. He had no other business or trade. Since 10 to 12 years he was sitting in his 37 of 51  uncle’s shop. He certified that there were many residential houses surrounding Faujdar Chawadi military station. In perspective of these admissions, indecisive doubt that arises here is possibly faith can still be placed on a testimony of PW-7 Dinesh Pandit.

So distant as mandate of law are concerned, in such cases, Investigating Officer is compulsory to call on some eccentric declare of a locality and if such chairman is not available, or is not peaceful to act as panch afterwards another eccentric and critical chairman can be called as a Panch witness. Without any serve care of a matter, one thing can be some-more or reduction with certain volume of conclusiveness staid here, that selecting a chairman who is not of a locality as a Panch on 30 Panchnamas, when other eccentric Panch could have been simply available, creates a critical doubt. The skill devised by a assign in a benefaction box knew no bounds. From a admissions elicited in interrogate of PW-7 Dinesh, it can't be attributed to be perfect coincidence.

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On a contrary, it appears to be deliberate, as a chairman who was operative but income was selected as a Panch on array of 38 of 51  panchanamas accessible during a duration of 2 months.

Investigating Officer could not give trustworthy reason for not selecting eccentric Panch witnesses for array of panchanamas. The demeanour in that questioning group had acted creates clever guess about a integrity of review as it frustrates a intent of :-

[i] preventing astray sell on a partial of questioning agency;

[ii] defence a rights of a theme and to safeguard that hunt and seizure is conducted honestly;

[iii] ensuring certainty in a open in ubiquitous that anything damning that might be found shall unequivocally be found and shall not be planted;

[iv] to obtain as arguable justification as probable and bar a luck of mixture and malpractice of any kind; and [v] to safeguard genuine hunt and recoveries.

34] In a light of a above, we do not find it compulsory to go into serve sum of justification of PW-7 Dinesh on a 39 of 51  recoveries of several articles during a instance of indicted persons. Suffice it to state, that underneath a resources brought on record, his justification does not enthuse certainty and no faith can be placed on such testimony. Even otherwise, small explanation of panchanamas would not assistance a assign unless liberation of several articles are connected with a elect of a purported crime by a accused.

PW-19 Avinash Patil had carried 25 articles alongwith one Tata Sumo jeep to a Chemical Analyser. His justification shows that a articles were not in hermetic condition.

This critical acknowledgment is elicited in his cross-examination.

PW-35 CPI Mokashi also certified in interrogate that Muddemal was not sealed. None of a CA reports bond possibly of a indicted with a elect of any act as a formula were mostly inconclusive. If it is so there is no infer in deliberation a justification of PW-8 Maruti Vedphatak, PW-11 Sohel Abdul K. Alim, PW-14 Santosh Pawar, PW-15 Munna Kazi,PW-16 Vaibhav Kadam and PW-22 Sachin Ashtikar as it would be a fatuous practice and improved march would be to keep their testimonies out of consideration. In this premise, we reason 40 of 51  that assign has unsuccessful in explanation this business too.

35] [c] Call Details Record (CDR) in honour of indicted Nos. 1,3,6 and 8 :-

It is a assign box that, during a applicable time, there was sell of calls among indicted Nos. 1,3,6 and 8.

To infer CDR, assign examined PW-24 Sachin Shinde and PW-32 Suresh Shilgire.

ig PW-24 Sachin Shinde (Exhibit 199) was portion as Nodal Officer with Idea Cellular Ltd. On 28.11.2005, association perceived a minute from Deputy Police Commissioner to produce call sum of a mobiles mentioned in a letter. Accordingly, call sum were furnished.

Same are valid during Exhibits 157 (1)to (157). These call sum were per to mobiles of indicted No.1 son of indicted No.6 and indicted No.8.

PW-32 Suresh Shilgire (Exhibit 218) was operative in Airtel company. Police visited a association and sought information per incoming and effusive calls on mobile of Vaibhav Kadam, that was stolen and allegedly used by indicted No.3 Basavraj Desai. This mobile was recovered from 41 of 51  indicted No.3. CDR news is during Exhibit 219.

On CDR, schooled warn for indicted No.1 heartily submitted that there is no correspondence of a imperative supplies of Section 65B of a Indian Evidence Act and therefore, CDR reports can't be certified in evidence. In support, Shri Khamkar, schooled warn placed intense faith on Anvar P. V. Vs. P. K. Basheer and others 7. In this case, a Hon’ble Supreme Court overruled a prior preference in AIR 2005 SC 3820 and reason in para 19 & 22 as under:-

“19. Proof of electronic record is a special sustenance introduced by the IT Actamending several supplies underneath the Evidence Act. The really heading of Section 65A of a Evidence Act, review with Sections 59 and 65B is sufficient to reason that a special supplies on justification relating to electronic record shall be governed by a procession prescribed under Section 65B of a Evidence Act. That is a finish Code in itself. Being a special law, a ubiquitous law under Sections 63 and 65 has to yield.”

“22. The justification relating to electronic record, as 7 AIR 2015 Supreme Court 180 42 of 51  remarkable hereinbefore, being a special provision, a ubiquitous law on delegate justification under Section 63 read with Section 65 of a Evidence Act shall produce to a same. Generalia specialibus non derogant, special law will always overcome over a ubiquitous law. It appears, a probity wanting to take note of Sections 59 and 65A dealing with a admissibility of electronic record. Sections 63 and 65 have no focus in a box of delegate justification by proceed of electronic record;

the same is unconditionally governed by Sections 65A and 65B. To that extent, a matter of law on admissibility of delegate justification per to electronic record, as staid by this Court in Navjot Sandhu box (supra), does not lay down a scold authorised position. It requires to be overruled and we do so. An electronic record by proceed of delegate justification shall not be certified in justification unless a mandate under Section 65B are satisfied. Thus, in a box of CD, VCD, chip, etc., a same shall be accompanied by a certificate in terms of Section 65B obtained during a time of holding a document, but which, a delegate justification per to that electronic record, is inadmissible.”

43 of 51  36] It is impending to note that in a State (NCT of Delhi) Vs. Navjot Sandhu dual Judge Bench of a Hon’ble Apex Court had an arise to cruise an emanate on prolongation of electronic record as evidence. While deliberation a printouts of a computerized annals of a calls per to a cellphones it was reason that delegate justification is slight in a deficiency of certificate underneath sub-section (4) of Section 65-B of a Indian Evidence Act.

ig This visualisation was overruled in Anvar’s box (supra).

In a benefaction box a claim certificate on Call Details Record as per law was not filed. In perspective of a ratio laid down in a above management deficiency of such certificate would describe a CRD unfit in law. Being inadmissible, same can't be considered.

37] [d] Motive :-

Prosecution had attributed belligerent to indicted No.1 to discharge a life of Rajesh in perspective of a disputes over :-

[a] Business;

[b] landed property; and

44 of 51

[c] parking of vehicles.

To settle motive, assign relied upon

evidence of PW-4 Rahemtulla, PW-5 Sunanda, PW-6 Gurupad, PW-21 Sunita, PW-23 Shivsharnappa, PW-25 Vasanti John, PW-28 Kumar Harihar, PW-29 Shrikant Tiwari, and PW-31 Dr. Natraj.

On belligerent schooled warn for indicted No.1 Shri Khamkar, submitted that a assign has unsuccessful to infer that indicted were thankful for causing a genocide of Rajesh and so motive, howsoever strong, would not be sufficient to settle a shame of a accused. To justify his acquiescence Shri Khamkar, placed faith on State of Punjab Vs. Sucha Singh and others8, in that a Hon’ble Apex Court observed:-

“Mr. Walia, schooled counsel, lastly contended that there is a clever belligerent joining a indicted with a crime for a reasons being that Kuldip Singh, nephew of indicted Sucha Singh was murdered by a complainant celebration and a indicted had nursed a hate opposite a complainant celebration for revenge. This defence is of no assistance to a assign case. When a elementary substructure of a assign box crumbled down, a belligerent becomes 8 AIR 2003 Supreme Court 1471 45 of 51 inconsequential. At a same time, passion is a double edged sword. It could be a belligerent for fake implication, it could also be a belligerent for assault. In a benefaction case, in perspective of a contribution and resources as discussed above, a motive, however, clever merely creates a suspicion. Suspicion can't take a place of explanation of guilt.”

38] In a box on hand, assign had miserably unsuccessful to infer any of a resources opposite a accused.

Therefore, presumption that there were inner bickerings between indicted No.1 and Rajesh relating to business, landed skill and parking of vehicle, that alone would not be sufficient to reason a indicted guilty of elect of purported murder of Rajesh.

39] As discussed above, statements of element witnesses do not assistance a assign to move home a shame of a indicted persons over reasonable doubt. It is also clear that a testimonies of categorical witnesses is unconditionally unreliable, unbelievable, unnatural, strange and self-

contradictory. The whole assign justification bristles with extraordinary chronicle and element lacunas. There are array of 46 of 51  resources that are self vocalization to infer that assign box is overlain with array of doubts and mass of lies so embedded that a unfit to apart a law from falsehood. The vital deficiencies emerged in a assign box are –

[i] In blank news lodged by PW-5 Sunanda, she did not charge any specific purpose to a indicted yet she certified that she was sensitive by PW-4 Rahemtulla and PW-

36 Satish that indicted Nos. 1 and 3 had taken Rajesh alongwith them;

[ii] PSI More, who enquired into blank news was an critical witness. He was kept divided from a declare box for a reasons best famous to prosecution;

[iii] Medical Officer on Post Mortem news not examined;

[iv] Doctor to whom weapons were sent for opinion was not examined;

[v] PW-7 Dinesh was selected as a Panch on 30 Panchanamas accessible during a camber of dual months.

[vi] Articles that were seized during review were 47 of 51  sent to Chemical Analyser after 30 to 35 days of purported seizure and in unblocked condition;

[vii] FIR was lodged on 19.11.2005. Inordinate check in camp FIR not explained; and [viii] It has come during justification that Rajesh was tighten to a lady named Jullie. No review was finished in that instruction notwithstanding a matter of witnesses that he lastly went in a automobile with his friend.

The above infirmities are fundamental in nature. We find this box as an instance once again to remind a Investigating Agency and assign of a toilsome avocation to place a law before a Court with pinnacle attraction instead of adopting a possess proceed in such a critical crime where a doubt of life and genocide of persons is involved.

40] So distant as proceed of a conference probity is endangered reduction pronounced is a better. On 26.10.2009, a schooled Additional P.P. submitted an focus (Exhibit 127A) during a march of trial. By a pronounced application, a ask was finished to concede 48 of 51  a assign to infer chit matter of indicted No.3 Basavraj Desai accessible on 23.11.2005. Vide sequence antiquated 2/11/2009, this focus was dismissed.

41] It is intolerable that a same Presiding Officer relied on chit matter of indicted No.3 Basavraj Desai accessible during a march of investigation, notwithstanding rejecting of accede to vaunt a same and reason that indicted Nos. 1 and 2 designed before 5 months of a occurrence to kill Rajesh and conspired with indicted Nos. 3 to 11, to whom Rs. 3 Lakhs were given as agreement murdering income and afterwards executed a plan.

42] The observations of a schooled conference decider in para.134 of a impugned visualisation clearly infer miss of elementary bargain of a supplies of Sections 26 and 27 of a Indian Evidence Act. It appears that a schooled conference decider has incited blind eye to these critical supplies and poorly warn a same. The reasonings accessible by a conference probity are not in accord with a record. On a contrary, they are totally in negligence to a staid supplies ensuing in 49 of 51  grave miscarriage of probity to a accused. In this background, we find that a impugned visualisation and sequence of self-assurance and visualisation does not legally means and needs to be quashed and set aside.

43] In a result, we pass a following sequence :-

[a] The impugned visualisation and sequence of self-assurance and visualisation in Sessions Case No. 60 of 2006 upheld by a schooled Ad-hoc Additional Sessions Judge, Solapur, is hereby quashed and set aside ;

[b] Accused Nos. 1 and 3 to 11 are clear of a offences punishable under Sections 120B, 364 r/w.149, 368 r/w. 149, 302 r/w. 149 and 201 r/w. 149 of IPC;

[c] Accused No. 1 Revansidha Loni, Accused No.3 Basavraj Desai, Accused No.4 Malang Shende, Accused No. 10 Sanjay Zingadekar and Accused No.11 Ambadas Talathi, who are in jail, shall be expelled forthwith, if not differently compulsory in any other case;

[d] Bail holds of indicted Nos. 5,6,7,8 and 9 shall mount cancelled and they are set during autocracy forthwith;

[e] Registry to promulgate this sequence to a indicted in jail by a endangered Jail Authorities;

[f] We quantify a fees to be paid by a High Court Legal Services Committee, to a allocated Advocate for indicted No.3 Shri Swapnil Ovalekar, during Rs.

5,000/-.

[ INDIRA K. JAIN, J. ] [ SMT. V. K. TAHILRAMANI, J. ]

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