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Petu @ Gopal vs State Of M.P on 14 August, 2019

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HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************
SB:- Hon’ble Shri Justice G. S. Ahluwalia

CRA No. 296/2013
Appellant ——————– Petu alias Gopal

Vs.

Respondent ——————The State of MP

None for the appellant. Shri D. S. Rajawat, who is in the list of Legal Aid
Services Authority, is appointed as amicus curiae for the appellant.
Shri Aditya Singh, Counsel for the respondent/ State.

JUDGMENT

(Delivered on 14/08/2019)
Per G. S. Ahluwalia, J:-

This Criminal Appeal under Section 374 of Cr.P.C. has been filed

against the judgment and sentence dated 24/12/2012, passed by 8 th

Additional Sessions Judge, Gwalior in Sessions Trial No.07/1996, by

which the appellant has been convicted under Section 376 (2)(g) of SectionIPC

and has been sentenced to undergo the rigorous imprisonment of ten years

and a fine of Rs.1,000/- in default to further undergo rigorous

imprisonment of two months.

(2) As per the certificate issued by the Trial Court under Section 428 of

CrPC, during the trial, the appellant had already undergone the actual jail

sentence of three years, four months and 22 days approximately. Further,

the appellant is in jail from 24/12/2012 i.e. from the date of judgment and

from the order sheets of this case, it appears that the appellant had never

filed an application for suspension of sentence and grant of bail. Thus, it

appears that the appellant must have undergone the entire jail sentence of

rigorous imprisonment of ten years.

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(3) The necessary facts for the disposal of the present appeal in short

are that on 06/11/1994 at about 1:00 PM the prosecutrix lodged a report

that she is the resident of Gendewali Sadak. Her father-in-law and mother-

in-law live in Village Koleth. She had gone to Village Koleth one day

before Diwali to celebrate the festival. At about 11:00 PM she went to

answer the call of nature where the co-accused Ramdeen and the appellant

committed rape on her after gagging her mouth. They had also extended a

threat that in case if any complaint is made, she would be again ravished.

Earlier also, the prosecutrix had made a complaint at police station Tighra

against the co-accused Ramdeen for molesting her. The prosecutrix came

back and informed the incident to her mother-in-law and on the next day,

without taking bath she came back and informed the incident to her

husband and accordingly, the matter was reported to the police on

06/11/1994. Since the incident had taken place within the jurisdiction of

Police Station Tighra, therefore, the matter was transferred to the said

police station and Crime No.51/1994 for offence under Section 376/Section34 of

IPC was registered. The prosecutrix was sent for medical examination.

The site memo was prepared. Accused persons were arrested vide arrest

memo Ex.P5 and Ex.P6. Clothes, vaginal slides and vaginal swabs of the

prosecutrix were prepared and sealed by doctor which were duly seized by

the police and were sent to FSL and the FSL report is Ex.P9. The

statements of the witnesses were recorded and the charge sheet was filed

against the present appellant and the co-accused Ramdeen for offence

under Section 376/Section34 of IPC.

(4) The Trial Court by order dated 24/10/1996 framed the charge under

Section 376(1) of IPC against the appellant as well as the co-accused
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Ramdeen. By order dated 1/7/1999, the Trial Court amended the charge

and charge under Section 376(2)(g) of IPC was framed.

(5) The prosecution, in order to prove its case, examined prosecutrix

(PW1), Mullo Bai (PW2), Tularam (PW3), Alka Shukla (PW4), Udal

Singh (PW5), Brij Kishore Parashar (PW6), Dr. A.K.Bohare (PW7) and

Anand Bhargav (PW8). The accused persons did not examine any witness

in their defence.

(6) The Trial Court by judgment dated 25/07/2001 acquitted the appellant

as well as the co-accused Ramdeen of all the charges.

(7) It appears that the prosecutrix filed a Criminal Revision before this

Court against the judgment of acquittal dated 25/07/2001, which was

registered as Criminal Revision No.413/2001 and this Court by order

dated 11/10/2011 allowed the Criminal Revision and remanded the matter

back to the Trial Court. However, since the co-accused Ramdeen had

expired during pendency of the criminal revision, therefore, the criminal

revision filed by the complainant against the acquittal of Ramdeen was

dismissed as abated.

(8) It appears that on 07/12/2011, the appellant surrendered before the

Trial Court and on the same day he was granted bail. Thereafter, notices to

the witnesses were issued. Dr. A.K.Bohare (PW7) and Anand Bhargav

(PW8) were further examined and cross-examined on 06/01/2012. On

07/02/2012, the prosecutrix appeared but on the request of the counsel for

the appellant, her further examination was deferred. On 09/02/2012 also,

the prosecutrix was present but as the appellant was absent, therefore, the

case was adjourned on the request of the counsel for the appellant. On
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10/02/2012, the prosecutrix was present but since the appellant was not

present, therefore, his bail bonds were cancelled and warrant of arrest was

issued. On 23/04/2012, the appellant was arrested and produced in

execution of warrant of arrest. On 19/07/2012, the prosecutrix and

Tularam (PW3) were further cross-examined. On 26/10/2012, the

prosecution witness Brij Kishore Parashar was present but in the light of

the order dated 11/10/2011, passed in Criminal Revision No.413/2001, the

counsel for the appellant expressed that he does not want to further cross-

examine this witness. The prosecution could not serve Dr. Hemlata

Batham. Accordingly, the prosecution case was declared closed on

09/12/2012 and the case was fixed for recording the statement of the

appellant under Section 313 of CrPC. On 21/12/2012 his statement under

Section 313 of CrPC was recorded and the case was fixed for final

arguments and accordingly, by the impugned judgment and sentence dated

24th December, 2012, the appellant has been convicted under Section

376(2)(g) of IPC.

(9) Challenging the judgment and sentence passed by the Court below,

it is submitted by the counsel for the appellant that the prosecution has

failed to prove that the prosecutrix was subjected to rape by the appellant.

Her sole testimony should not be relied upon in absence of any

corroboration. Further, it is fairly conceded that since the appellant had

undergone the actual detention of three years, four months and 22 days

during the trial and since the appellant is in jail from the date of judgment

i.e. 24/12/2012, therefore, it appears that after including the remission

period, the appellant must have been released after having undergone the

jail sentence and even in absence of remission period, the appellant has
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undergone the actual jail sentence of ten years also.

(10) Per contra, the Counsel for the State submits that where evidence

of the prosecutrix is found to be reliable and credible, then asking for

further cross-examination is nothing, but adding insult to her. It is further

submitted that the prosecutrix cannot be treated as an accomplice. Further,

the Trial Court has rightly convicted the appellant after appreciating the

evidence in detail.

(11) Heard the learned Counsel for the parties.

(12) In the present case, the incident is said to have taken place on

05/11/1994 at about 11:00 in the night and the FIR was lodged on

06/11/1994 at about 1:00 in the afternoon i.e. 14 hours of the incident and

the police station Mahila Thana Gwalior is situated at a distance of 18

kilometers. In the FIR, it is specifically stated by the prosecutrix that she is

residing in Gendewali Sadak along with her husband and her parents-in-

law live in village Kuleth and one day prior to Diwali, she had gone to

Village Kuleth for celebrating the festival. At about 11:00 in the night she

went outside the house to answer the call of nature. The appellant and the

co-accused Ramdeen caught hold of her and gagged her mouth and she

was thrown on the ground. The appellant caught hold of her hands and the

co-accused Ramdeen took off her clothes and committed rape on her.

Thereafter, her mouth was gagged by the co-accused Ramdeen and the

appellant committed rape on her. Earlier also, the co-accused Ramdeen

had molested her and a report was lodged in Police Station Tighra. While

leaving the place of incident, the co-accused Ramdeen had warned that in

case, if the report is lodged, then again she would be raped as she must
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have got the result of lodging the report of molestation. The prosecutrix

came back to her house and informed the entire incident to her mother-in-

law. On the next morning without taking bath, she came back to her house

and informed the entire incident to her husband and accordingly, the FIR

was lodged. In the Court evidence also, the prosecutrix narrated the entire

incident in the manner in which it was disclosed in the FIR Ex.P1. She has

further stated that she was sent for medical examination. When she was

medically examined and her clothes were seized, the spot map was

prepared. Her broken and unbroken bangles were seized. In cross-

examination, she has stated that after the marriage, she was residing in

village Kuleth with her parents-in-law, and now she has shifted to Shinde

Ki Chhavani, Gwalior along with her husband and sometimes she go to

village Kuleth for celebrating the festival. Ramdeen resides in the colony

itself and his house is situated after two houses and the house of the

appellant is situated at a distance of 100-150 steps. Further, none of the

appellants are on visiting terms. She had gone to village about two days

prior to the incident. She had gone to forest area at about 11:00 in the

night. The place of incident is situated at a distance of 100-200 steps from

the house. The place of incident is an isolated place having no colony or

house. She took about five minutes for coming back to her house from the

place of incident. She further denied that her husband was ever detained in

the police station. She further denied that the co-accused Ramdeen had

spent Rs.3,000/- for getting her husband released. She further denied that

the co-accused Ramdeen used to demand his money back, therefore, he

has been falsely implicated. She was further cross-examined on

27.07.1999. She further admitted that the incident falls within the
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territorial jurisdiction of Police Station Tighra but as she was told that the

report of rapes are lodged in Mahila Thana, therefore, she lodged the

report in Mahila Thana. She had not suffered injuries because of broken

bangles. She did not suffer any external injury, however, swelling had

developed in her private parts. She further stated that she had gone to the

police station without changing her clothes and her clothes were seized in

the hospital. In the light of the remand order, the prosecutrix was further

examined by the prosecution. In further examination, on 19.07.2012 she

admitted that she had given her petticoat for medical examination and in

cross-examination, she has stated that she had put her thumb impression of

right hand on the consent letter.

(13) Mullo Bai (PW2) has stated that the prosecutrix had come to Village

Kuleth and had gone to answer the call of nature in the night. After

sometime, she came back and informed that the appellant and the co-

accused Ramdeen have committed rape on her. In cross-examination, she

stated that the prosecutrix had come to her village about four days prior to

the incident and she came back after two hours and had informed the

incident.

(14) Tularam (PW3) is the husband of the prosecutrix. He has stated that

the prosecutrix had gone to village. On the next day the prosecutrix

informed that both the accused persons have ravished her. Thereafter, he

lodged the FIR in the police station Mahila Thana and in cross-

examination, this witness has stated that he was never arrested in any

criminal case. In further examination in the light of the remand order

passed by this Court, this witness has stated that about 7-8 months prior to

the incident, the co-accused Ramdeen had molested his wife and its report
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was lodged.

(15) Alka Shukla (PW4) is the SHO of Police Station Mahila Thana,

Gwalior. She has stated that the FIR Ex.P1 which was lodged on the

instructions of the prosecutrix is in her handwriting and written by her and

the statement of the prosecutrix was also recorded. The prosecutrix was

sent for medical examination and since the incident had taken place within

the territorial jurisdiction of Police Station Tighra, therefore, diary along

the FIR Ex.P1 was sent to Tighra Police Station.

(16) Udal Sngh (PW5) had seized the clothes as well as slides sealed by

the Hospital vide seizure memo Ex.P2.

(17) Brij Kishore Parashar (PW6) had investigated the matter.

(18) Dr. A.K.Bohare (PW7) had medically examined the appellant and

he was found competent. His MLC report is Ex.P10.

(19) It appears that Dr. Hemlata Batham who had medically examined

the prosecutrix, was never examined, for the reason that her whereabouts

could not be traced and the medical report of the prosecutrix was got

proved from the prosecutrix (PW1) and was marked as Ex.P11 and

according to MLC report of the prosecutrix, no injury mark was found all

over the body and two vaginal slides and swabs were prepared. As the

prosecutrix was habitual to intercourse, therefore, no definite opinion

could be given. The FSL report is Ex.P9 according to which human

sperms and semen were found on the petticoat, as well on both the vaginal

slides and vaginal swabs of the prosecutrix, however, semen found on the

petticoat as well as vaginal swab was found insufficient for semen

examination.

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(20) It is well-established principle of law that if the evidence of the

prosecutrix is found to be reliable and credible, then no further

corroboration is required.

The Supreme Court in the case of Aslam Vs. State of U.P. Reported

in (2014) 13 SCC 350 has held as under :-

”9. This Court has held that if, upon consideration of the
prosecution case in its entirety, the testimony of the
prosecutrix inspires confidence in the mind of the court, the
necessity of corroboration of her evidence may be excluded.
This Court in SectionRajinder v. State of H.P. has observed as
under: (SCC pp. 77-79, paras 18-19)
“18. This Court in SectionState of Punjab v. Gurmit Singh made
the following weighty observations in respect of evidence
of a victim of sexual assault: (SCC pp. 395-96, para 8)
”8. … The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no self-
respecting woman would come forward in a court just to
make a humiliating statement against her honour such as is
involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations
which have no material effect on the veracity of the
prosecution case or even discrepancies in the statement of
the prosecutrix should not, unless the discrepancies are such
which are of fatal nature, be allowed to throw out an
otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the courts
should not overlook. The testimony of the victim in such
cases is vital and unless there are compelling reasons which
necessitate looking for corroboration of her statement, the
courts should find no difficulty to act on the testimony of a
victim of sexual assault alone to convict an accused where
her testimony inspires confidence and is found to be
reliable. Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases amounts to
adding insult to injury. Why should the evidence of a girl or
a woman who complains of rape or sexual molestation, be
viewed with doubt, disbelief or suspicion? The court while
appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in the
outcome of the charge levelled by her, but there is no
requirement of law to insist upon corroboration of her
statement to base conviction of an accused. The evidence of
a victim of sexual assault stands almost on a par with the
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evidence of an injured witness and to an extent is even more
reliable. Just as a witness who has sustained some injury in
the occurrence, which is not found to be self-inflicted, is
considered to be a good witness in the sense that he is least
likely to shield the real culprit, the evidence of a victim of a
sexual offence is entitled to great weight, absence of
corroboration notwithstanding. Corroborative evidence is
not an imperative component of judicial credence in every
case of rape. Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under given
circumstances. It must not be overlooked that a woman or a
girl subjected to sexual assault is not an accomplice to the
crime but is a victim of another person’s lust and it is
improper and undesirable to test her evidence with a certain
amount of suspicion, treating her as if she were an
accomplice. Inferences have to be drawn from a given set of
facts and circumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of the rule
of law is introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot cling to a
fossil formula and insist upon corroboration even if, taken
as a whole, the case spoken of by the victim of sex crime
strikes the judicial mind as probable.”

19. In the context of Indian culture, a woman–victim of
sexual aggression–would rather suffer silently than to
falsely implicate somebody. Any statement of rape is an
extremely humiliating experience for a woman and until
she is a victim of sex crime, she would not blame anyone
but the real culprit. While appreciating the evidence of the
prosecutrix, the courts must always keep in mind that no
self-respecting woman would put her honour at stake by
falsely alleging commission of rape on her and therefore,
ordinarily a look for corroboration of her testimony is
unnecessary and uncalled for. But for high improbability in
the prosecution case, the conviction in the case of sex crime
may be based on the sole testimony of the prosecutrix. It
has been rightly said that corroborative evidence is not an
imperative component of judicial credence in every case of
rape nor the absence of injuries on the private parts of the
victim can be construed as evidence of consent.”

The Supreme Court in the case of State of Haryana Vs. Basti Ram

reported in (2013) 4 SCC 200 has held as under :-

”25. The law on the issue whether a conviction can be based
entirely on the statement of a rape victim has been settled by
this Court in several decisions. A detailed discussion on this
subject is to be found in SectionVijay v. State of M.P. After discussing
the entire case law, this Court concluded in para 14 of the
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Report as follows: (SCC p. 198)
“14. Thus, the law that emerges on the issue is to the
effect that the statement of the prosecutrix, if found to
be worthy of credence and reliable, requires no
corroboration. The court may convict the accused on
the sole testimony of the prosecutrix.”

This decision was recently adverted to and followed in SectionState
of Rajasthan v. Babu Meena.”

The Supreme Court in the case of Narendra Kumar Vs. State

(NCT of Delhi) reported in (2012) 7 SCC 171 has held as under :-

”20. It is a settled legal proposition that once the
statement of the prosecutrix inspires confidence and is
accepted by the court as such, conviction can be based
only on the solitary evidence of the prosecutrix and no
corroboration would be required unless there are
compelling reasons which necessitate the court for
corroboration of her statement. Corroboration of
testimony of the prosecutrix as a condition for judicial
reliance is not a requirement of law but a guidance of
prudence under the given facts and circumstances. Minor
contradictions or insignificant discrepancies should not be
a ground for throwing out an otherwise reliable
prosecution case.

21. A prosecutrix complaining of having been a victim of
the offence of rape is not an accomplice after the crime.
Her testimony has to be appreciated on the principle of
probabilities just as the testimony of any other witness; a
high degree of probability having been shown to exist in
view of the subject-matter being a criminal charge.
However, if the court finds it difficult to accept the
version of the prosecutrix on its face value, it may search
for evidence, direct or substantial (sic circumstantial),
which may lend assurance to her testimony. (SectionVide Vimal
Suresh Kamble v. Chaluverapinake Apal S.P.and SectionVishnu v.
State of Maharashtra.)

22. Where evidence of the prosecutrix is found suffering
from serious infirmities and inconsistencies with other
material, the prosecutrix making deliberate improvement
on material point with a view to rule out consent on her
part and there being no injury on her person even though
her version may be otherwise, no reliance can be placed
upon her evidence. (SectionVide Suresh N. Bhusare v. State of
Maharashtra.)

23. SectionIn Jai Krishna Mandal v. State of Jharkhand this Court
while dealing with the issue held: (SCC p. 535, para 4)
“4. … the only evidence of rape was the statement of
the prosecutrix herself and when this evidence was read in
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its totality the story projected by the prosecutrix was so
improbable that it could not be believed.”

24. SectionIn Raju v. State of M.P. this Court held: (SCC p. 141, para

10)
“10. … that ordinarily the evidence of a prosecutrix
should not be suspected and should be believed, more so as
her statement has to be evaluated on a par with that of an
injured witness and if the evidence is reliable, no
corroboration is necessary.”

The Court however, further observed: (Raju case, SCC p. 141,
para 11)
“11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at the
same time a false allegation of rape can cause equal
distress, humiliation and damage to the accused as well.
The accused must also be protected against the possibility
of false implication … there is no presumption or any basis
for assuming that the statement of such a witness is always
correct or without any embellishment or exaggeration.”

25. SectionIn Tameezuddin v. State (NCT of Delhi), this Court held as
under: (SCC p. 568, para 9)
“9. It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but to
hold that this evidence has to be accepted even if the story
is improbable and belies logic, would be doing violence to
the very principles which govern the appreciation of
evidence in a criminal matter.”

26. Even in cases where there is some material to show that the
victim was habituated to sexual intercourse, no inference of the
victim being a woman of “easy virtues” or a woman of “loose
moral character” can be drawn. Such a woman has a right to
protect her dignity and cannot be subjected to rape only for that
reason. She has a right to refuse to submit herself to sexual
intercourse to anyone and everyone because she is not a
vulnerable object or prey for being sexually assaulted by anyone
and everyone. Merely because a woman is of easy virtue, her
evidence cannot be discarded on that ground alone rather it is to
be cautiously appreciated. (SectionVide State of Maharashtra v.
Madhukar Narayan Mardikar, SectionState of Punjab v. Gurmit Singh
and SectionState of U.P. v. Pappu)

27. In view of the provisions of Sections 53 and Section54 of the
Evidence Act, 1872, unless the character of the prosecutrix itself
is in issue, her character is not a relevant factor to be taken into
consideration at all.

28. The courts while trying an accused on the charge of rape,
must deal with the case with utmost sensitivity, examining the
broader probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the evidence of
the witnesses which are not of a substantial character.

29. However, even in a case of rape, the onus is always on the
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prosecution to prove, affirmatively each ingredient of the offence
it seeks to establish and such onus never shifts. It is no part of the
duty of the defence to explain as to how and why in a rape case
the victim and other witnesses have falsely implicated the accused.
The prosecution case has to stand on its own legs and cannot take
support from the weakness of the case of defence. However great
the suspicion against the accused and however strong the moral
belief and conviction of the court, unless the offence of the
accused is established beyond reasonable doubt on the basis of
legal evidence and material on the record, he cannot be convicted
for an offence. There is an initial presumption of innocence of the
accused and the prosecution has to bring home the offence against
the accused by reliable evidence. The accused is entitled to the
benefit of every reasonable doubt. (Vide Tukaram v. State of
Maharashtra and SectionUday v. State of Karnataka.)”

(21) If the facts of this case are considered, then it is clear that the FIR

was lodged within a period of 14 hours. In the FIR itself, it was

specifically mentioned that because the prosecutrix was earlier molested

by the co-accused Ramdeen and as a report was lodged by her, therefore,

she was raped and even the co-accused Ramdeen had extended a threat

that in case, if she again makes a complaint, then she would be raped and

the rape was the result of the report lodged by the prosecutrix. The

prosecutrix was cross-examined in detail, however, nothing could be

elicited from her cross-examination to prove that the false FIR was lodged

or false evidence was given by her because of any enmity. Only suggestion

which was given to the prosecutrix was that as the co-accused Ramdeen

had spent some money for getting the husband of the prosecutrix released

from the police station, therefore, he was demanding his money back and

thus, a false FIR of rape was lodged. Tularam (PW3) was cross-examined

and a single question was put to him and it was replied by him that he was

never arrested by the police in any case. The appellant has not filed any

document to show that the husband of the prosecutrix was ever arrested by

the police in connection with some other case. Thus, the defence taken by
14

the appellant that as the co-accused Ramdeen had spent some money for

getting the husband of the prosecutrix released, therefore, the FIR has been

lodged, cannot be accepted. Even otherwise, according to the appellant

himself, the co-accused Ramdeen had spent Rs.3,000/- and in the

considered opinion of this Court, no woman would put her chastity to

stake for such a trivial amount. Accordingly, this Court is of the considered

opinion that the prosecution has succeeded in establishing beyond

reasonable doubt that the prosecutrix was raped by the appellant as well as

co-accused Ramdeen and hence, committed an offence under Section

376(2)(g) of IPC.

(22) Accordingly, the judgment and sentence dated 24/12/2012 passed by

8th Additional Sessions Judge, Gwalior in Sessions Trial No.07/1996 is

hereby affirmed.

(23) The appellant was never granted bail by this Court. In case, if the

appellant has not completed his jail sentence, then he shall undergo the

remaining jail sentence and if he has already been released after

undergoing the entire jail sentence, then nothing more is required to be

done.

(24) With the aforesaid observation, the appeal fails and is hereby

dismissed.

(G.S. Ahluwalia)
Judge

MKB

Digitally signed by
MAHENDRA KUMAR BARIK
Date: 2019.08.14 17:58:32
+05’30’

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