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Akshay Kumar Singh vs The State Nct Of Delhi on 18 December, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRIMINAL) D NO.44603 OF 2019
IN
CRIMINAL APPEAL NOS.609-610 OF 2017

AKSHAY KUMAR SINGH …Petitioner

VERSUS
STATE (NCT OF DELHI) …Respondent

JUDGMENT

R. BANUMATHI, J.

This Review Petition has been preferred by the petitioner-

accused Akshay Kumar Singh who was the cleaner of the bus to

review the judgment dated 05.05.2017 passed by this Court in

Criminal Appeal Nos.609-610 of 2017 in and by which this Court

confirmed the conviction and death penalty imposed upon the

petitioner by the trial court as well as by the High Court.

2. In the evening of 16.12.2012, the prosecutrix (since

deceased) had gone for a movie with her friend, PW-1. At about
Signature Not Verified

Digitally signed by

08:45 pm, both the prosecutrix and PW-1 left the movie theatre and
MAHABIR SINGH
Date: 2019.12.18
16:00:46 IST
Reason:

reached Munirka bus stand and they boarded the bus bearing

1
registration No. DL-1PC-0149. This bus was being driven by

accused Ram Singh (since deceased) and the petitioner-Akshay

Kumar Singh @ Thakur was the helper thereof. The accused

misbehaved with the prosecutrix and have committed gang rape of

the prosecutrix in the moving bus. They also committed unnatural

offence and inserted iron rod in the private parts of the prosecutrix.

The accused persons had beaten up PW-1 with iron rods and his

clothes were torn off. The accused also took away all the

belongings of the prosecutrix and PW-1 and thereafter, threw the

prosecutrix and PW-1 in a naked/semi naked condition from the

moving bus. The prosecutrix was treated at Safdarjung Hospital,

Delhi where her three dying declarations were recorded. Since the

condition of the prosecutrix became critical, she was shifted for

further treatment on 27.12.2012 to Mt. Elizabeth Hospital,

Singapore where, she died on 29.12.2012.

3. The trial court held that the complicity and guilt of the accused

were proved and convicted the petitioner and other accused under

Sections 120-B IPC, 376 (2)(g) read with Section 120-B IPC, 377

read with Section 120-B IPC, 365 and 366 read with Section 120-B

IPC, 395 read with Section 120-B IPC, 397 read with Section 120-B

IPC, 302 read with Section 120-B IPC, 307 read with Section 120-B

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IPC, 412 and 201 read with Section 120-B IPC and inter alia

imposed death penalty upon them. Death penalty and other

sentence of imprisonment imposed upon them was confirmed by

the High Court. The accused had filed Criminal Appeal Nos.609-610

of 2017 before this Court.

4. Criminal appeal filed by the petitioner had earlier been

dismissed by this Court vide its judgment dated 05.05.2017 in

Mukesh and another v. State (NCT of Delhi) and others (2017) 6

SCC 1 on the basis of the following evidence which firmly

established the presence of the petitioner at the scene of the

incident and his involvement in the commission of rape on the

prosecutrix :-

(i) evidence of PW-1/injured eye-witness who spoke about the
occurrence in the bus; PW-1 identified the petitioner in the TIP
conducted on 26.12.2012 as one of the persons who came out of the
driver’s cabin from the bus and started abusing PW-1 and later, took
the prosecutrix to the back side of the bus and raped her;

(ii) three dying declarations of the prosecutrix of which, in the second
dying declaration (ExPW27/A), prosecutrix stated the incident in
detail and that the accused persons were calling “Ram Singh,
Thakur, Raju, Mukesh, Pawan and Vinay and in the third dying
declaration, the prosecutrix wrote the names of the accused “Ram
Singh, Mukesh, Vinay, Akshay, Vipin, Raju” including petitioner-
Akshay Kumar Singh and other accused;

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(iii) evidence of PW-81-Dinesh Yadav, owner of the bus in which he has
stated that accused Ram Singh was the driver and petitioner was the
helper in the bus in which the incident occurred;

(iv) Ex.PW71/C, report of PW-71-Dr. Ashith B. Acharaya who opined that
one bite mark found on the prosecutrix could have been possibly
caused by the petitioner; three other bite marks were caused by
accused Ram Singh;

(v) DNA evidence – DNA profile generated from the blood-stained jeans
and banian of the petitioner recovered at the behest of petitioner
matched with the DNA profile of the prosecutrix; another set of DNA
profile generated from jeans pant of the petitioner matched with the
DNA profile of PW-1 and DNA profile generated from breast swab of
the victim which was found consistent with the DNA profile of the
blood of the petitioner;

(vi) recovery of metro card and silver ring of PW-1 recovered at the
behest of the petitioner and identified by PW-1.

5. We have heard Mr. A.P. Singh, learned counsel appearing for

the petitioner-accused No.3. We have also heard Mr. Tushar

Mehta, learned Solicitor General appearing for NCT of Delhi

assisted by Ms. Supriya Juneja, learned counsel.

6. The learned counsel Mr. A.P. Singh had taken us through the

various grounds urged in the review petition and prayed for review

of the judgment. The learned Solicitor General Mr. Tushar Mehta

submitted that the evidence adduced by the prosecution and the

defence plea has been considered threadbare both by the trial

court, High Court and also by this Court. The learned Solicitor

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General submitted that upon appreciation of evidence, the High

Court and the Supreme Court upheld the findings as to the guilt of

the accused and also the sentence. The learned Solicitor General

also submitted that the very same grounds were raised in the review

petition by the co-accused and the same was dismissed by this

Court vide judgments in Mukesh v. State (NCT of Delhi) (2018) 8

SCC 149 and Vinay Sharma and another v. State (NCT of Delhi)

and others (2018) 8 SCC 186.

7. In this review petition, the petitioner prays for review of the

judgment dated 05.05.2017. In the review petition before us, the

petitioner has again sought to assail the merits of the prosecution

case and the findings rendered thereon which cannot be permitted.

8. It is no longer res integra that scope of review is limited and

review cannot be entertained except in cases of error apparent on

the face of the record. Article 137 of the Constitution of India

empowers the Supreme Court to review any judgment pronounced

or made, subject, of course, to the provisions of any law made by

the Parliament or any rule made under Article 145 of the

Constitution of India. Order XLVII Rule 1 of Supreme Court Rules,

2013 dealing with review reads as follows:-

“1. The Court may review its judgment or order, but no application for
review will be entertained in a civil proceeding except on the ground

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mentioned in Order 47 Rule 1 of the Code, and in a criminal
proceeding except on the ground of an error apparent on the face of
the record.”

As per the Supreme Court Rules, review in the criminal proceedings

is permissible only on the ground of error apparent on the face of

the record.

9. The jurisdiction of this Court under Article 137 of the

Constitution of India has been clearly stated in Sow Chandra Kante

and Another v. Sheikh Habib (1975) 1 SCC 674, wherein this Court

held as under:-

“A review of a judgment is a serious step and reluctant resort to it is
proper only where a glaring omission or patent mistake or like grave
error has crept in earlier by judicial fallibility. A mere repetition through
different counsel of old and overruled arguments, a second trip over
ineffectually covered ground or minor mistakes of inconsequential
import are obviously insufficient.”

10. Review is a not a rehearing of the appeal over again. In a

review petition, it is not for the Court to re-appreciate the evidence

and reach a different conclusion. The scope of review jurisdiction

has been elaborately considered by this Court in number of cases

and the well settled principles have been reiterated time and again.

In Kamlesh Verma v. Mayawati and Others (2013) 8 SCC 320, the

Supreme Court held as under:-

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“17. In a review petition, it is not open to the Court to reappreciate the
evidence and reach a different conclusion, even if that is possible.
Conclusion arrived at on appreciation of evidence cannot be assailed in
a review petition unless it is shown that there is an error apparent on the
face of the record or for some reason akin thereto. This Court in Kerala
SEB v. Hitech Electrothermics Hydropower Ltd. (2005) 6 SCC 654
held as under: (SCC p. 656, para 10)
“10. … In a review petition it is not open to this Court to
reappreciate the evidence and reach a different conclusion, even
if that is possible. The learned counsel for the Board at best
sought to impress us that the correspondence exchanged
between the parties did not support the conclusion reached by
this Court. We are afraid such a submission cannot be permitted
to be advanced in a review petition. The appreciation of evidence
on record is fully within the domain of the appellate court. If on
appreciation of the evidence produced, the court records a finding
of fact and reaches a conclusion, that conclusion cannot be
assailed in a review petition unless it is shown that there is an
error apparent on the face of the record or for some reason akin
thereto. It has not been contended before us that there is any
error apparent on the face of the record. To permit the review
petitioner to argue on a question of appreciation of evidence
would amount to converting a review petition into an appeal in
disguise.”

11. Considering the scope of review under Article 137 of the

Constitution of India and observing that normally in a criminal

proceeding, review applications cannot be entertained except on

the ground of error apparent on the face of the record, in Vikram

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Singh alias Vicky Walia and Another v. State of Punjab and Another

(2017) 8 SCC 518, the Supreme Court held as under:-

“23. In view of the above, it is clear that scope, ambit and parameters of
review jurisdiction are well defined. Normally in a criminal proceeding,
review applications cannot be entertained except on the ground of error
apparent on the face of the record. Further, the power given to this Court
under Article 137 is wider and in an appropriate case can be exercised to
mitigate a manifest injustice. By review application an applicant cannot
be allowed to reargue the appeal on the grounds which were urged at
the time of the hearing of the criminal appeal. Even if the applicant
succeeds in establishing that there may be another view possible on the
conviction or sentence of the accused that is not a sufficient ground for
review. This Court shall exercise its jurisdiction to review only when a
glaring omission or patent mistake has crept in the earlier decision due
to judicial fallibility. There has to be an error apparent on the face of the
record leading to miscarriage of justice to exercise the review jurisdiction
under Article 137 read with Order 40 Rule 1. There has to be a material
error manifest on the face of the record with results in the miscarriage of
justice.”

12. A review of the judgment is permitted only when it is shown

that judgment suffers from error apparent on the face of the

judgment. In P.N Iswara Iyer and Others v. Registrar, Supreme

Court of India (1980) 4 SCC 680, while considering Order XL Rule 1

of the Supreme Court Rules, 1996, the Constitution Bench of the

Supreme Court observed that Order XL Rule 1 affords the wider set

of grounds for review of orders in civil proceedings, but limits the

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grounds vis-à-vis criminal proceedings to errors apparent on the

face of the judgment.

13. Applying the above parameters of the review jurisdiction, it is

to be seen whether the petitioner has made out any ground

indicating error apparent on the face of the record warranting review

of our judgment dated 05.05.2017.

14. Even at the outset, it is to be pointed out that the grounds

raised by the petitioner-accused in this review petition are identical

to that of the grounds raised by the co-accused in their review

petitions. Those grounds urged by the co-accused in their review

petitions were considered and rejected by this Court in Mukesh v.

State (NCT of Delhi) (2018) 8 SCC 149 and Vinay Sharma and

another v. State (NCT of Delhi) and others (2018) 8 SCC 186.

15. At this juncture, we would like to point out two grounds raised

by the petitioner in this review petition viz., (i) futility of awarding

death sentence in Kalyug, where a person is no better than a dead

body; and (ii) that the level of pollution in Delhi NCR is so great that

life is short anyhow and everyone is aware of what is happening in

Delhi NCR in this regard and while so, there is no reason why death

penalty should be awarded. According to the petitioner, in view of

the above, he should be spared of the death sentence. We find it

9
unfortunate that such grounds have been raised in the matter as

serious as the present case.

16. The petitioner has also raised the plea that death penalty is

the ultimate denial of human rights and that it violates the right to

life; it also goes against the principle of non-violence. In the review

petition, the petitioner has put forth the general case against the

capital punishment by stating that only the poor and downtrodden

are more likely to be sentenced with death sentence. Such general

contentions put forth against the capital punishment cannot be gone

into in this review petition.

17. The petitioner has raised the plea as to the lack of

professional skills of the investigating agency and the need for an

unbiased investigation. In the petition, general allegations have

been made against the investigating agency alleging extortion of

confession and then create evidence to falsely implicate the

accused. The grounds raised in the petition alleging improper

investigation and manipulation of evidence are too general and not

specific. It is to be pointed out that each and every point raised by

the petitioner-accused assailing the course of investigation was well

considered by the trial court which we have gone through at the

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time of hearing of the criminal appeals. The same points cannot be

urged again and again.

18. So far as the dying declaration is concerned, the petitioner

has raised the same contention which was raised earlier that is,

according to the petitioner, only the first dying declaration

(Ex.PW49/A) recorded by PW-49-Dr. Rashmi Ahuja where the

prosecutrix has neither named nor mentioned the name of any of

the accused persons, has to be relied upon. Contention of the

petitioner is that the second dying declaration (Ex.PW27/A)

recorded by PW-24-Dr. Usha Chaturvedi, SDM on 21.12.2012 could

not have been recorded as the victim was under the life support and

she could not have given four pages of dying declaration. Further

contention of the petitioner is that the third dying declaration

recorded by PW-30-Pawan Kumar, Metropolitan Magistrate where

the victim has named the petitioner and other accused was a

tutored version and cannot be relied upon.

19. Mr. A.P. Singh, learned counsel appearing for the petitioner-

accused has contended that investigation in the present case is

flawed and unreliable. It was submitted that insofar as the recording

of the statement of witnesses under Section 161 Cr.P.C., manner of

arrest of the accused, conduct of test identification parade are

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doubtful. Various contentions assailing the course of investigation

have been raised both before the trial court as well as before the

High Court and this Court which have been considered threadbare

and were rejected. We do not find any merit in the contention of the

learned counsel for the petitioner assailing the investigation.

20. The learned counsel submitted that because of the media

pressure, the petitioner and other accused have been falsely

implicated. Taking us through the averments made in para 3(f) of

the review petition, the learned counsel submitted that PW-1-

Awninder Pratap Singh had taken heavy amount as bribe and this

has been highlighted in some of the news channels which affect the

credibility of the evidence of PW-1. It was submitted that in this

regard, Heera Lal Gupta, father of co-accused Pawan Gupta had

filed a complaint vide Diary No.26A on 02.11.2019 before SHO, PS

R.K. Puram, Sector-12, New Delhi and also before Deputy

Commissioner of Police, Vasant Vihar. The averments made in

para 3(f) of the review petition are subsequent events unsupported

by any material. In a criminal case, culpability or otherwise of the

accused are based upon appreciation of evidence adduced by the

prosecution and also the evidence adduced by the defence. The

materials or the news emerging in the media and press as also the

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news channels cannot be taken note of in arriving at a conclusion

on the culpability of the accused or to test credibility of the witness.

Such events cannot be urged as a ground for review.

21. The learned counsel appearing for the petitioner-accused has

taken us through the averments made in para 3(g) of the review

petition and also the clippings of book titled “Black Warrant” written

by Sunil Gupta, a former law officer of Central Jail, Tihar, Delhi who

served long time in Tihar jail. The learned counsel submitted that in

the book written by the above officer, the officer has expressed his

opinion that Ram Singh, accused No.1 was murdered in Tihar jail on

11.03.2013. Here again, the opinion of the said former law officer

Sunil Gupta is only his opinion which is not supported by any

material. If the former law officer had any doubt regarding death of

Ram Singh, the said officer could have offered himself to appear as

a defence witness or he could have filed an affidavit before any of

the courts, either trial court or High Court or before the Supreme

Court. The opinion of the said officer Sunil Gupta which is not

supported by any material, cannot be a ground for reviewing our

judgment.

22. As pointed out in the judgment, there were three dying

declarations recorded from the prosecutrix:-

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(i) in the first dying declaration (Ex.PW-49/A) recorded by Dr. Rashmi
Ahuja (PW-49) on 16.12.2012 at 11.15 pm, the prosecutrix has
stated that more than two men committed rape on her after which,
she does not remember the sexual intercourse; the prosecutrix also
stated that she was subjected to unnatural sex and she was bitten
over her lips, cheeks and breast;

(ii) in the second dying declaration (Ex.PW-27/A) recorded by PW-27-

Usha Chaturvedi, SDM on 21.12.2012 at 09.00 pm, the prosecutrix
has narrated the entire incident in great detail, specifying the role of
each of the accused, rape committed by number of persons, insertion
of iron rod in her private parts, description of the bus, robbery
committed and throwing of both the victims out of the moving bus in
naked condition. Prosecutrix also stated that the accused were
calling each other “Ram Singh, Thakur, Raju, Mukesh, Pawan and
Vinay”; and

(iii) in the third dying declaration (Ex.PW-30/D) recorded on 25.12.2012
at 1.00 p.m by PW-30-Pawan Kumar, Metropolitan Magistrate by
putting multiple choice questions to the victim and getting answers by
gestures and writing. While giving third dying declaration, prosecutrix
revealed the names of the accused by writing in her own handwriting
viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju”.

This Court considered the three dying declarations in the light of the

well-settled principles and found that the multiple dying declarations

inspire the confidence of the Court and are credible. The above

contentions were earlier raised and were considered by this Court in

paras (148) to (164), (186) to (192) and (395) to (417) of the

judgment and rejected. While so, the petitioner cannot raise the

same plea.

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23. So far as the plea of alibi, contention of the petitioner is that

he was not present in Delhi on the night of 16.12.2012 and that he

accompanied his sister-in-law Sarita Devi (DW-15) along with her

son Kundan. He boarded Mahabodhi Express on 15.12.2012 and

left for Aurangabad, Bihar from Platform No.9, New Delhi Railway

Station. Contention of the petitioner that the evidence adduced by

the petitioner to prove his presence in the Karmalahang, P.S.

Thandva, District-Aurangabad, that is the evidence of DW-1, local

auto driver, DW-12-Sarju Singh who has spoken about the petitioner

reaching his house in his native village on 16.12.2012 and DW-13-

Rajmohan, father-in-law of petitioner and DW-14-Punita Devi, wife

of petitioner who have deposed that the petitioner came to their

house in the native village Karmalahang along with Sarita Devi

(DW-15), would show that the petitioner was not present in Delhi on

the night of 16.12.2012. It was submitted that though the defence

has showed booked ticket details of Mahabodhi Express from New

Delhi to Aurangabad on 15.12.2012 to prove the departure of the

petitioner, this aspect was not appreciated by the court and the

petitioner’s plea of alibi was erroneously turned down.

24. To substantiate the plea of alibi, the petitioner has examined

DW-11-Chavinder, Auto Driver who has taken the petitioner and his

15
family members from Anugrah Narayan Railway Station, District-

Aurangabad, Bihar to his native village, Karmalahang. DW-12-Sarju

Singh, DW-13-Rajmohan, father-in-law of petitioner and DW-14-wife

of the petitioner have spoken about the presence of petitioner in the

village. DW-15-Sister-in-law of petitioner whom the petitioner claims

had accompanied her on 15.12.2012. Considering the evidence of

DWs 12, 14 and 15 in Para (256), this Court has observed that DWs

12, 14 and 15 are all relatives of accused Akshay Kumar Singh alias

Thakur and that as observed by both the courts, they tried to wriggle

the petitioner out of the messy situation as is the natural instinct of

the family members.

25. The plea of alibi taken by the petitioner-accused and the

evidence adduced by the petitioner has been well-considered by

this Court in Paras (247) to (269). Upon appreciation of evidence,

this Court affirmed the findings of the trial court and the High Court

rejecting the plea of alibi and held that plea of alibi taken by the

petitioner is an afterthought. We do not find any error apparent on

the face of the record in consideration of evidence and rejection of

the plea of alibi. The appreciation of evidence in rejecting the plea of

alibi does not suffer from any error apparent on the face of the

record and this cannot be urged as a ground for review.

16

26. The next contention urged by the petitioner is the use of iron

rod and absence of injury to the uterus on the alleged insertion of

the iron rod in the private parts of the victim. Elaborate submissions

were made on the alleged use of iron rod and the same was

rejected by well-considered reasonings in Paras (193) to (209) and

(413) to (422) and the said findings thereon supported by the

opinion of the medical expert do not suffer from any error.

27. The other contentions viz. (i) CCTV footage of Hotel Delhi

Airport was not properly examined; (ii) the bus bearing registration

No.DL-1PC-0149 was falsely implicated; (iii) PW-81-owner of the

bus was in judicial custody for six months before his examination in

the court and he was so detained in custody only to bring pressure

upon him to depose in favour of the prosecution; and (iv) the

petitioner-accused was photographed earlier and the same was

shown to PW-1 to enable him to identify the petitioner-accused in

the test identification parade. These contentions and other

contentions assailing the case of the prosecution were all raised

earlier and upon consideration of evidence, the same were rejected

by this Court. The review petition is not for re-hearing of the appeal

on reappreciation of the evidence over and over again. A party is

17
not entitled to seek review of the judgment merely for the purpose of

rehearing of the appeal and a fresh decision.

28. On the question of award of death sentence, the Court has

considered the aggravating and mitigating circumstances. In Paras

(322) to (368) and (511) to (518) of the judgment, while considering

the question of death sentence, opportunity was granted to the

petitioner accused and also other accused to file their affidavits as

to their family background, criminal antecedents, possibility of

reformation and such other relevant factors. The petitioner accused

through his counsel, Mr. A.P. Singh has filed an affidavit stating his

family background and stating that he has no criminal antecedent

and that his case is not falling under “the rarest of rare cases” to

affirm the death sentence, which contention was considered and

rejected. The aggravating and mitigating circumstance and the

affidavit filed by the petitioner was considered in detail in Para

(324). The contention urged by the counsel for the parties and

learned amicus curiae were considered in paras (327) to (368) and

(511) to (518) of the judgment and the court observed that the

background and family circumstances cannot be taken as the

mitigating circumstances. Considering the manner in which the

offence was committed, in the judgment dated 05.05.2017, this

Court held that the case is falling within “the rarest of rare cases”.
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We do not find that these findings suffer from any error apparent on

the face of the record. The mitigating circumstances elaborated

upon by the defence by way of highlighting the comparatively young

age of the convicts, their socio-economic background, their

unblemished antecedents and their chances of reformation, fade

into insignificance. In light of the aggravating circumstances and

considering that the case falls within the category of “rarest of rare

cases”, the death penalty is confirmed.

29. Insofar as the submission of learned counsel for the

petitioner-accused that the death penalty has been abolished in UK

and several other Latin American countries and Australian States,

the same contentions were raised by Mr. A.P. Singh in the earlier

review petitions and the same were dismissed. [vide Mukesh v.

State (NCT of Delhi) (2018) 8 SCC 149 and Vinay Sharma and

another v. State (NCT of Delhi) and others (2018) 8 SCC 186]

30. Dismissal of the review petitions filed by the co-accused:

The review petition filed by the co-accused were dismissed as

having no merit, on 09.07.2018 Mukesh v. State (NCT of Delhi)

(2018) 8 SCC 149. The court observed that the submissions urged

by the other accused were already considered while delivering the

19
judgment and were rejected. The same points were earlier raised in

the review petitions filed by other co-accused. The grounds raised in

the present review petition are almost repetition of the arguments

raised in the earlier review petitions which were rejected and in our

view, cannot be raised repeatedly.

31. We do not find any error apparent on the face of the record in

the appreciation of evidence or the findings of the judgment dated

05.05.2017. None of the grounds raised in the review petition call

for review of the judgment dated 05.05.2017. The review petition is

dismissed.

..……………………..J.

[R. BANUMATHI]

.………………………..J.

[ASHOK BHUSHAN]

….……………………..J.

[A. S. BOPANNA]
New Delhi;

December 18, 2019.

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