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Judgments of Supreme Court of India and High Courts

Ramkrishna Ganesh Wagh vs The State Of Mah.Thr.Pso Akola on 12 July, 2018

1 apeal590.05.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

CRIMINAL APPEAL NO.590/2005

Ramkrishna Ganesh Wagh,
aged 19 years, Occ. Education,
r/o Village Khadka, Tq. Dist.
Akola (In Jail) …..APPELLANT

…V E R S U S…

The State of Maharashtra through
Police Station Borgaon Manju,
Tq. Dist. Akola, through office
of Govt. Pleader, High Court, Nagpur. …RESPONDENT

——————————————————————————————-
Mrs. Shamsi Haider, A.P.P. for respondent.
——————————————————————————————-

CORAM:- MANISH PITALE, J.

DATED :-

JULY 12, 2018

ORAL JUDGMENT

1. By this appeal, the appellant has challenged the

judgment and order dated 26.10.2005 passed by the Sessions

Court, Akola (trial Court) in Sessions Trial No.134/2004, whereby

the appellant was convicted under Section 376 of the Indian Penal

Code (IPC) and he was sentenced to undergo rigorous

imprisonment for seven years and six months, respectively on two

counts, as also to pay a fine in terms of direction contained in the

impugned judgment and order.

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2. On 05.12.2005, this court allowed the application filed

by the appellant and suspended the sentence passed by the trial

Court further directing the appellant to be released on bail on

same terms and conditions, as were applicable during the trial.

Accordingly, the appellant has been on bail since 05.12.2005.

3. This appeal was listed on 15.06.2018 for hearing when

none appeared on behalf of the appellant and the office note

recorded that the counsel for the appellant had not even collected

the paper book. Accordingly, time of one week was granted to the

counsel for collecting the paper book. On 22.06.2018, when the

appeal was listed again, none appeared on behalf of the appellant

and paper book was also not collected. Hence, the appeal was

adjourned to 29.06.2018. The office note dated 22.06.2018

recorded that the counsel for the appellant collected the paper

book. But, when the appeal was again listed on 29.06.2018, the

counsel for the appellant failed to appear to argue the appeal. It

was recorded in the order dated 29.06.2018 by this Court that

since the appeal pertains to the year 2005, it was to be listed on

09.07.2018, high on board. Accordingly, this appeal was listed

high on board for final hearing on 09.07.2018 and it continued on

the list on 10.07.2018 and even today i.e. on 11.07.2018. But,

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upon the appeal being called out, again none has appeared on

behalf of the appellant.

4. The aforesaid events clearly demonstrate that the

counsel for the appellant has chosen to remain absent, not once,

but again and again when this appeal has been listed before this

Court. In this situation, it becomes relevant to examine as to what

is the course to be adopted by the Court for disposal of the appeal.

In the case of Bani Singh and Ors. Vs. State of U.P.; reported in

(1996) 4 SCC 720, a Three Judge Bench of the Hon’ble Supreme

Court posed a similar question and then answered the same. The

relevant portion of the said judgment reads as follows:

“9. The question is, where the accused is the
appellant and is represented by a pleader, and the latter
fails to appear when the appeal is called on for hearing,
is the Appellate Court empowered to dispose of the
appeal after perusing the record on its own or, must it
adjourn the appeal to a future date and intimate the
accused to be present on the next date of hearing?

10 to 13. …..

14. We have carefully considered the view
expressed in the said two decisions of this Court and, we
may state that the view taken in Shyam Deo case,

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(1971) 1 SCC 855, appears to be sound except for a
minor clarification which we consider necessary to
mention. The plain language of Section 385 makes it
clear that if the Appellate Court does not consider the
appeal fit for summary dismissal, it ‘must’ call for the
record and Section 386 mandates that after the record is
received, the Appellate Court may dispose of the appeal
after hearing the accused or his counsel. Therefore, the
plain language of Sections 385-386 does not
contemplate dismissal of the appeal for non-prosecution
simpliciter. On the contrary, the Code envisages disposal
of the appeal on merits after perusal and scrutiny of the
record. The law clearly expects the Appellate Court to
dispose of the appeal on merits, not merely by perusing
the reasoning of the trial court in the judgment, but by
cross-checking the reasoning with the evidence on record
with a view to satisfyiny itself that the reasoning and
findings recorded by the trial court are consistent with
the material on record. The law, therefore, does not
envisage the dismissal of the appeal for default or non-
prosecution but only contemplates disposal on merits
after perusal of the record. Therefore, with respect, we
find it difficult to agree with the suggestion in Ram
Naresh Yadav’s case AIR 1987 SC 1500, that if the
appellant or his pleader is not present, the proper course
would be to dismiss an appeal for non-prosecution.

15. Secondly, the law expects the Appellate Court
to give a hearing to the appellant or his counsel, if he is

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present, and to the public prosecutor, if he is present,
before disposal of the appeal on merits. Section 385
posits that if the appeal is not dismissed summarily, the
Appellate Court shall cause notice of the time and place
at which the appeal will be heard to be given to the
appellant or his pleader. Section 386 then provides that
the Appellate Court shall, after perusing the record, hear
the appellant or his pleader, if he appears. It will be
noticed that Section 385 provides for a notice of the time
and place of hearing of the appeal to be given to either
the appellant or his pleader and not to both presumably
because notice to the pleader was also considered
sufficient since he was representing the appellant. So also
Section 386 provides for a hearing to be given to the
appellant or his lawyer, if he is present, and both need
not be heard. It is the duty of the appellant and his
lawyer to remain present on the appointed day, time and
place when the appeal is posted for hearing. This is the
requirement of the Code on a plain reading of Sections
385-386 of the Code. The law does not enjoin that the
Court shall adjourn the case if both the appellant and his
lawyer are absent. If the Court does so as a matter of
prudence or indulgence, it is a different matter, but it is
not bound to adjourn the matter. It can dispose of the
appeal after perusing the record and the judgment of the
trial court. We would, however, hasten to add that if the
accused is in jail and cannot, on his own, come to court,
it would be advisable to adjourn the case and fix another
date to facilitate the appearance of the accused/appellant

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if his lawyer is not present. If the lawyer is absent, and
the court deems it appropriate to appoint a lawyer at
State expense to assist it, there is nothing in the law to
preclude it from doing so. We are, therefore, of the
opinion and we say so with respect, that the Division
Bench which decided Ram Naresh Yadav case did not
apply the provisions of Sections 385-386 of the Code
correctly when it indicated that the Appellate Court was
under an obligation to adjourn the case to another date
if the appellant or his lawyer remained absent.

16. Such a view can bring about a stalemate
situation. The appellant and his lawyer can remain
absent with impunity, not once but again and again till
the Court issues a warrant for the appellant’s presence.
A complaint to the Bar Council against the lawyer for
non-appearance cannot result in the progress of the
appeal. If another lawyer is appointed at State cost, he
too would need the presence of the appellant for
instructions and that would place the Court in the same
situation. Such a procedure can, therefore, prove
cumbersome and can promote indiscipline. Even if a case
is decided on merits in the absence of the appellant, the
higher court can remedy the situation is there has been a
failure of justice. This would apply equally if the accused
is the respondent for the obvious reason that if the
appeal cannot be disposed of without hearing the
respondent or his lawyer, the progress of the appeal
would be halted.”

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The aforesaid judgment of the Hon’ble Supreme Court

was referred to and followed in a subsequent judgment in the case

of K. S. Panduranga Vs. State of Karnataka; reported in (2013)

3 SCC 721. The relevant portion of the said judgment reads as

follows:

“19. From the aforesaid decision, the principles
that can be culled out are:

19.1 That the High Court cannot dismiss an appeal
for non- prosecution simpliciter without examining the
merits;

19.2 That the court is not bound to adjourn the
matter if both the appellant or his counsel/lawyer are
absent;

19.3 That the court may, as a matter of prudence
or indulgence, adjourn the matter but it is not bound to
do so;

19.4 That it can dispose of the appeal after
perusing the record and judgment of the trial court;
19.5 That if the accused is in jail and cannot, on
his own, come to court, it would be advisable to adjourn
the case and fix another date to facilitate the appearance
of the accused-appellant if his lawyer is not present, and
if the lawyer is absent and the court deems it
appropriate to appoint a lawyer at the State expense to
assist it, nothing in law would preclude the court from
doing so; and

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19.6 That if the case is decided on merits in the
absence of the appellant, the higher court can remedy
the situation.

20. In Bapu Limbaju Kamble; (2005) 11 SCC
413 and Man Singh; (2008) 9 SCC 542, this Court has
not laid down as a principle that it is absolutely
impermissible on the part of the High Court to advert to
merits in a criminal appeal in the absence of the counsel
for the appellant. We have already stated that the
pronouncement in A.S. Mohammed Rafi; (2011) 1 SCC
688, dealt with a different situation altogether and, in
fact, emphasis was on the professional ethics, counsel’s
duty, a lawyer’s obligation to accept the brief and the
role of the Bar Associations. The principle laid down in
Sham Deo Pandey; (1971) 1 SCC 855, relying on
Siddanna Apparao Patil;(1970) 1 SCC 547, was slightly
modified in Bani Singh;(1996) 4 SCC 720. The two-
Judge Bench in Mohd. Sukur Ali;(2011) 4 SCC 729,
had not noticed the binding precedent in Bani Singh.

21 to 25. …..

26. Regard being had to the principles pertaining
to binding precedent, there is no trace of doubt that the
principle laid down in Mohd. Sukur Ali (2011) 4 SCC
729 by the learned Judges that the court should not
decide a criminal case in the absence of the counsel of
the accused as an accused in a criminal case should not

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suffer for the fault of his counsel and the court should,
in such a situation, must appoint another counsel as
amicus curiae to defend the accused and further if the
counsel does not appear deliberately, even then the court
should not decide the appeal on merit is not in accord
with the pronouncement by the larger Bench in Bani
Singh (1996) 4 SCC 720. It, in fact, is in direct conflict
with the ratio laid down in Bani Singh. As far as the
observation to the effect that the court should have
appointed amicus curiae is in a different realm. It is one
thing to say that the court should have appointed an
amicus curiae and it is another thing to say that the
court cannot decide a criminal appeal in the absence of a
counsel for the accused and that too even if he
deliberately does not appear or shows a negligent
attitude in putting his appearance to argue the matter.
With great respect, we are disposed to think, had the
decision in Bani Singh been brought to the notice of the
learned Judges, the view would have been different.

27 to 31. …..

32. In view of the aforesaid annunciation of law,
it can safely be concluded that the dictum in Mohd.
Sukur Ali, to the effect that the court cannot decide a
criminal appeal in the absence of counsel for the accused
and that too if the counsel does not appear deliberately
or shows negligence in appearing, being contrary to the
ratio laid down by the larger Bench in Bani Singh

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(supra), is per incuriam. We may hasten to clarify that
barring the said aspect, we do not intend to say
anything on the said judgment as far as engagement of
amicus curiae or the decision rendered regard being had
to the obtaining factual matrix therein or the role of the
Bar Association or the lawyers. Thus, the contention of
the learned counsel for the appellant that the High
Court should not have decided the appeal on its merits
without the presence of the counsel does not deserve
acceptance. That apart, it is noticeable that after the
judgment was dictated in open court, the counsel
appeared and he was allowed to put forth his
submissions and the same have been dealt with.”

5. Applying the aforesaid principles laid down by the

Hon’ble Supreme Court to the present case, it becomes evident

that this Court can decide the present appeal on merits after

perusing the grounds of appeal, impugned judgment and order of

the trial Court and the entire record and also on hearing the

learned A.P.P., who has been present on every occasion when the

appeal was called out for hearing. Hence, this Court is proceeding

to examine the merits of the present appeal.

6. Heard Mrs. Shamsi Haider, learned A.P.P. appearing on

behalf of the State. A perusal of the record of the present case and

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the impugned judgment and order of the trial Court shows that

according to the prosecution on 05.10.2003, in the evening at

about 4.00 p.m. when the prosecutrix (PW1) was alone in her

house, the appellant entered the house and after holding the

prosecutrix in a tight embrace, removed her clothes and

committed the act of forcible sexual intercourse with her. At that

time, father of the prosecutrix i.e. Babarao Tayade (PW5) entered

the house and caught the appellant red handed in the act of

committing sexual intercourse with his daughter i.e. the

prosecutrix. The said witness Babarao (PW5) slapped the

appellant twice, upon which the appellant fled away. According to

the prosecution, Babarao (PW5) then came to know from the

prosecutrix about the details of the incident and he left for Akola

to fetch the mother of the prosecutrix before proceeding to

approach the police. It is relevant that the appellant was related

to the prosecutrix and he was her maternal uncle. It has come on

record that Babarao (PW5) returned from Akola with his wife in

the evening on 05.10.2003 and, thereafter, in the morning on

06.10.2003, they took the prosecutrix to the police station to lodge

complaint in respect of the said incident.

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7. On the oral report lodged by the prosecutrix, First

Information Report (FIR) was registered on 06.10.2003 at 12.45

p.m. and an offence under Section 376 of the IPC was registered

against the appellant. The prosecutrix (PW1) was sent for medical

examination. Her clothes were seized and they were sent for

chemical analysis. The investigating officer Govind Hirekar (PW6)

took up the investigation. It was found that the school leaving

certificate and certificate issued by the Gram Panchayat showed

that the date of birth of the prosecutrix was 17.06.1988 and that

she was less than 16 years old at the time of the incident. Govind

(PW6), the investigating officer recorded the statement of

witnesses and on the basis of the evidence and material on record,

he submitted charge-sheet against the appellant. On being

charged for the aforesaid offence, trial against the appellant

proceeded. The prosecution examined six witnesses in support of

its case. PW1 was prosecutrix herself, PW2 was Dr. Kiran

Deshmukh, who opined regarding the age of prosecutrix based on

radiological test, PW3 Dr. Sheetal Mehta was the doctor who

medically examined the prosecutrix after registration of the FIR,

PW4 Ramrao Chotmal was the pancha witness for seizure of

clothes of the prosecutrix, PW5 Babarao Tayade was father of

prosecutrix and PW6 Govind was the investigating officer.

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8. The appellant examined one defence witness Surekha

Gavai as DW1, in order to demonstrate that the prosecutrix was

having illicit relations with the husband of said witness, perhaps,

in order to cast aspersions on the character of the prosecutrix.

9. Record shows that school leaving certificate, Exh.-27,

and certificate from Gram Panchayat, Exh.-28, were brought on

record by the prosecution. Both documents were showing date of

birth of the prosecutrix as 17.06.1988. The prosecutrix (PW1) in

her evidence also stated that her date of birth was indeed

17.06.1988, thereby showing that she was less than 16 years on

05.10.2003, when the incident took place. On the basis of the

evidence available on record, the trial Court found that the

prosecution had proved its case beyond reasonable doubt against

the appellant and on that basis, the trial Court convicted and

sentenced the appellant under Sections 376 and 448 of the IPC.

10. Perused the entire record of the case and the impugned

judgment and order passed by the trial Court. The learned A.P.P.

assisted this Court in perusing the oral and documentary evidence

on record, including the evidence of the defence witness, on which

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the reliance was placed on behalf of the appellant in the trial

Court.

11. The evidence of the prosecutrix (PW1) in the present

case shows that she stated in detail about the manner in which the

incident took place on 05.10.2003 in the evening. She also stated

specifically that her date of birth was 17.06.1988 and that the

contents of school leaving certificate and certificate issued by the

Gram Panchayat, were true and correct. It is significant that the

prosecutrix (PW1) has not been cross-examined on the aforesaid

assertion made by her in respect of her date of birth. There were

suggestions given on behalf of the appellant to the effect that there

was some dispute between the father of the appellant and relatives

of the prosecutrix (PW1), which were denied by her in the cross-

examination. The version of the prosecutrix has not been

discredited in any manner. The school leaving certificate at Exh.-

27 and certificate of Gram Panchayat at Exh.-28 are on record

which support the assertion of the prosecutrix that her date of

birth was 17.06.1988, demonstrating that she was less than 16

years old when the incident took place on 05.10.2003. In this

context, judgment of Division Bench of this Court is relevant,

passed in the case of Kundan s/o Nanaji Pendor Vs. State of

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Maharashtra; reported in. 2017 ALL MR (Cri) 1137, wherein it

has been held as follows:

“11. Since the appellant has been charged with
having committed offence under Sections 3 (a), 5 (j) (ii)
and 5 (l) of the Act of 2002, as per Charge at Exh.4, it
would be necessary to first record a finding as to the age
of “S”. As per provisions of Section 2 (1) (d) of the said
Act, a child means a person below the age of eighteen
years. As noted above, the prosecutrix had stated on
oath that her date of birth was 5th January, 1997.
There is no cross-examination, whatsoever, to this
specific assertion made by the prosecutrix in her
Examination-in-Chief. Her said statement has gone
totally unchallenged. It is a settled position of law that if
a witness is not cross-examined on a particular portion
of her deposition in her Examination-in-Chief, said
statement is required to be accepted as the same is not
challenged by the defence.”

12. Thus, it becomes evident that the prosecutrix was below

the age of 16 years at the time of incident. It is further fortified by

the evidence of Dr. Kiran (PW2), who has stated in her evidence,

on the basis of radiological test that the age of the prosecutrix was

indeed between 14 and 16 years. In fact, she has emphatically

stated that the age of the prosecutrix, at the relevant time, was

more than 14 years and less than 16 years of age. Nothing

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material has been brought out in the cross-examination of the said

witness. Therefore, the finding rendered by the trial Court that

the prosecutrix was below the age of 16 on 05.10.2003, cannot be

found fault with.

13. Father of the prosecutrix-Babarao (PW5) has also

described the incident, which corroborates the evidence of the

prosecutrix. He has also clearly stated that when he entered the

house, he caught the appellant red handed in the act of

committing sexual intercourse with his daughter i.e. prosecutrix.

In the cross-examination, efforts were made on behalf of the

appellant to demonstrate that the said witness had no explanation

for delay in registration of the FIR. The record shows that while

the incident took place on 05.10.2003 between 04.00 to 05.00

p.m., FIR was registered on 06.10.2003 at 12.45 p.m. The record

also shows that the said witness-Babarao (PW5) has stated that he

first visited Akola to bring his wife back home before proceeding

to lodge complaint with police. It has also come on record that the

appellant was maternal uncle of the prosecutrix i.e. brother of the

mother of the prosecutrix. In this situation, father of the

prosecutrix-Babarao (PW5) could be expected to first bring the

incident to the notice of his wife as it pertained to extremely

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serious allegation against her own brother and, therefore, it does

not appear to be unnatural for the father of the prosecutrix-

Babarao (PW5) to have first informed his wife and then

approached the police for lodging the complaint. Thus, on this

count, it could not be said that the delay in registration of the FIR

was fatal to the case of the prosecution. This view taken by the

trial Court, on the basis of the material on record, cannot be said

to be erroneous.

14. Dr. Sheetal (PW4) is the Doctor who medically

examined the prosecutrix on 06.10.2003 at about 2.45 p.m. after

registration of the FIR. Medical examination report, Exh.-38,

shows that although no fresh injury or bleeding was seen, hymen

was found to have been torn. In her evidence, the said witness

stated that although there was possibility of sexual intercourse,

she could not give an exact opinion regarding the same. She also

told that rupture of hymen was beyond 12 hours. It was further

contended before the trial Court on the part of the appellant that

in the absence of injuries to the private parts of the prosecutrix, it

could not be said that there was forcible sexual intercourse in the

present case. It was further contended that the prosecution case

was not made out against the appellant. But, perusal of the

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chemical analysis report, Exh.-51 in the present case shows that

the underwear and knicker, Exhs.-E and G respectively, in the

present case, show presence of stains of blood and semen, which

were human. In the light of said material on record, the trial

Court found that the act of sexual intercourse was proved in the

present case and from the oral evidence of the prosecutrix (PW1)

and her father Babarao (PW5), it was clear that the appellant was

responsible for the incident that occurred on 05.10.2003.

15. The evidence of the investigating officer-Govind (PW6)

did indicate that there were certain omissions or discrepancies in

the evidence of Babarao (PW5). But said omissions/discrepancies

did not go to the very root of the matter and they did not have any

adverse effect on the prosecution case against the appellant. The

trial Court also found that the said omissions/discrepancies were

minor in nature and perusal of the entire record shows that the

said conclusion rendered by the trial Court cannot be said to be

erroneous.

16. Insofar as the evidence of defence witness Surekha

Gavai (PW1) is concerned, there appears to be an attempt on the

part of the appellant to cause aspersions on the character of the

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prosecutrix. It is claimed by this witness in her examination-in-

chief that her estranged husband was not only having illicit

relations with the prosecutrix but also with her sister Sujata. She

has gone on to claim that the said sister of the prosecutrix had

given birth to child of her estranged husband. It is also claimed by

her that the prosecutrix was about 22 years old when her

deposition was recorded on 18.10.2005. But in cross-examination,

this witness has conceded that she was giving information about

the alleged illicit relations between her estranged husband and the

prosecutrix (PW1) for the first time in the Court when she

attended the Court at the request of father of the appellant and

further that father of the appellant had explained to her nature of

the case pending against his son and that the manner in which she

was expected to give evidence before the Court. The said witness

further conceded that there was no document to support her

statement. The said defence witness stands absolutely discredited

in cross-examination and it is evident that she was brought up by

the appellant and her father, only with an intention of creating an

adverse opinion about the prosecutrix and her character. The trial

Court has correctly ignored the same and it is correctly observed

that even if the prosecutrix was assumed to be of loose character,

it could not be said that the appellant had a right to rape her or to

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have sexual intercourse with her. The said finding of the trial

Court cannot be found fault with.

17. The evidence and material on record, in the present

case, clearly demonstrates that the prosecutrix (PW1) was less

than 16 years old at the time when the incident took place on

05.10.2003. Thus, as per clause ‘Sixthly’ of Section 375 of the IPC,

as it then stood, consent in the present case, was rendered

immaterial. Therefore, even if it is presumed for the sake of

argument that the medical evidence did not show that there had

been forcible sexual intercourse indicating that there might have

been consent on the part of the prosecutrix, since she was less

than 16 years old, consent was immaterial. Proof of the factum of

sexual intercourse, in the present case, was enough to prove that

the appellant was guilty of rape, as defined in clause ‘Sixthly’ of

Section 375 of the IPC.

18. The trial Court has taken into consideration each and

every aspect of the present case with minute details and it has

rendered a proper finding on appreciation of evidence and

material on record. This Court has also perused the entire record,

including oral and documentary evidence. It is found that the

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grounds raised in the appeal, pertaining to the age of the

prosecutrix, alleged delay is registration of the FIR and omissions/

discrepancies in the evidence of the prosecution witnesses, are

absolutely without any substance.

19. Consequently, this appeal is found to be without any

merit. The impugned judgment and order passed by the trial

Court is confirmed. Consequently, the appellant shall be taken in

to custody forthwith, to serve out the remaining part of the

sentence.

List this appeal for compliance after four weeks.

(Manish Pitale, J.)

kahale

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