In the case of Laxmibai (dead) Thr. L.Rs. &
explaining the basis on which he had identified the
Anr. v. Bhagwantbuva (dead) Thr.L.Rs., & Ors.,
AIR 2013 (SC) 1204 the Apex Court has held that :
“31.
Furthermore, there cannot be any
dispute with respect to the settled legal
proposition, that if a party wishes to raise
any doubt as regards the correctness of
the statement of a witness, the said
witness must be given an opportunity to
explain his statement by drawing his
attention to that part of it, which has been
objected to that part of it, which has been
objected to by the other party, as being
untrue. Without that, it is not possible to
impeach his credibility. Such a law has
been advanced in view of the statutory
provisions enshrined in Section 138 of the
Evidence Act, 1972, which enable the
opposite party to cross examine a witness
as regards information tendered in
evidence by him during his initial
examination in chief, and the scope of this
provisions stands enlarged by Section 146
of the Evidence Act, which permits a
witness to be questioned, inter-alia, in
order to test his veracity. Thereafter, the
unchallenged part of his evidence is to be
relied upon, for the reasons that it is
impossible for the witness to explain or
elaborate upon any doubts as regards the
same, in the absence of questions put to
him with respect to the circumstances
which indicate that the version of events
provided by him, is not fit to be believed,
and the witness himself is unworthy of
credit. Thus, if a party intends to impeach
a witness, he must provide adequate
opportunity to the witness in the witness
box, to give a full and proper explanation.
The same is essential to ensure fair play
and fairness in dealing with witnesses.”
It is thus a settled legal proposition that in case the
question is not put to the witness in cross-examination
who could furnish explanation on a particular issue,
the correctness or legality of the said fact/issue could
not be raised.
In the light of these principles, and
having failed to challenge the evidence of P.W.1 and
disapprove the statement of P.W.1, challenge to the
identity of the corpus is not permissible.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 982 OF 2008
Popat Khandu Pisal, Vs The State of Maharashtra
P. V. HARDAS AND
ANUJA PRABHUDESSAI, J.J.
DATED : JUNE 11, 2014.
Citation;2015 ALLMR(CRI)1406
Appellant in Criminal Appeal No. 982 of 2009 was
the accused no.1 while the appellants in Criminal
Appeal No.966 of 2008 were accused nos.2, 4 and 5 in
Sessions Case No. 635 of 2002. These appellants/
accused have challenged the judgment dated 21st
August, 2008 whereby the 2nd Adhoc Addl. Sessions
Judge, Bombay, at Sewree convicted
and sentenced
each of them to suffer life imprisonment and to pay
fine of Rs.2000/ each in default, to suffer Rigorous
imprisonment for one month in respect of offence
under Section 302 r/w. 149 and 120B of IPC and to
suffer life imprisonment and to pay fine Rs.1000/- in
default rigorous imprisonment for one month each for
the offence under Section 364 r/w. 149 and 120-B
I.P.C.
Briefly stated the case of the prosecution is as
2.
under:
P.W.1. Ankush Pisal is a resident of Kaldhari. His
son Ravindra (deceased) was working as a porter at
Byculla Market, Mumbai. On 26th March, 2002 one
Kalange telephonically informed P.W.1 Ankush Pisal,
that Ravindra was missing from Mumbai since 20th
March, 2002.
P.W.1 Ankush Pisal came to Mumbai
and made enquiries with his relatives. Since
whereabouts of Ravindra could not be known,
the
PW-1
lodged a missing report on 27th March, 2002 at
Byculla Police Station.
3.
The accused Raosaheb and Madhukar (deceasd
A3) were the residents of Kaldhari and were living at
Lower Parel, Mumbai.
P.W.3 Bhanudas Pisal, a co-
villager who had come to Mumbai learnt that Ravindra
was having illicit relations with the wife of Raosaheb
(A-2) and that Raosaheb had conspired with Popat (A-
1), Sanjay(A-5) and Sandeep (A-4) to kill Ravindra.
PW-3 passed on this information to PW-1 Ankush.
P.W.3 Bhanudas Pisal informed P.W.1 that the accused
Raosaheb had paid Rs.3000/- to the accused Sanjay
Popat and Sandeep to kill Ravindra.
He further told
P.W.1 that the accused had initially planned to call
Ravindra at Dadar on 20.3.2002 under the pretext of
joining them for drinks and then to kill him. The said
plan did not succeed as Ravindra did not come to Dadar.
Subsequently, as per the instructions of
Raosaheb, accused Sanjay, Popat and Sandeep took
Ravindra to Mankhurd.
P.W.3 further informed P.W.1
that while Raosaheb and Madhukar (deceased A-3)
were forcing him to accompany them to Mankhurd, a
policeman on duty got suspicious and took them to
Dadar Police Station.
The said policeman took their
personal search and recovered a knife and an iron rod
from the possession of Raosaheb (A-2).
The police
released him but detained Raosaheb and Madhukar.
P.W.3 further informed P.W.1 that since the said date
he had not seen Ravindra, Sandeep and his associates
at Dadar and surrounding locality.
4.
Based on the said information, P.W.1 lodged a
complaint/FIR dated 1.4.2002 (Exh.19) against the
aforesaid appellants and Madhukar (deceased A-3) for
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------------judgment 982 of 2008
kidnapping his son Ravindra in order to murder.
Pursuant to the said complaint, P.W.8 P.S.I. Deepak
Chavan registered C.R.No.113 of 2002 under section
120(B), 364 r/w. 34 I.P.C. at the Byculla Police
Station. The accused Popat was arrested on 1.4.2002.
On the same day, while he was in custody, accused
Popat expressed his willingness to show the place
where the body of Ravindra as well as the stone used
The said
for causing death of Ravindra was thrown.
statement was recorded by P.W.8 under panchanama
Pawar.
ig
drawn in the presence of P.W.2 Mr. Baban Bhagwan
The body of Ravindra as well as the stone
which was used for causing death of Ravindra was
recovered from the spot of the incident as per the
disclosure statement made by the accused Popat. The
said recovery panchanama is at Exh.22.
5.
The body was identified by P.W.1 as that of his
son Ravindra. The police attached the stone and other
incriminating material from the scene of offence under
the
spot
panchanama
at
Ex.35.
The
inquest
panchanama at Ex.36 was drawn over the body of the
deceased Ravindra. The Postmortem examination was
conducted
Sharma.
by
P.W.7
Dr.
Rajendra
Anandmohan
He opined that the death of Ravindra was
due to multiple fractures of facial bones.
P.W.8
handed over the body to P.W.1, and on the same date
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added Section 302 I.P.C. and registered ADR 35 of
Officer
recorded
the
The Investigating
statements
of
2002 at Byculla Police Station.
witnesses,
including the sole eye witness P.W.4 Kavita Kakde, and
upon completion of investigation, filed charge-sheet
against
the
aforesaid
Madhukar(A-3)
and
appellants/accused
Meena
(A-6)
for
and
committing
offences punishable under Section 302, 364 r/w. 149
The case was committed to the Court of Sessions
ig
6.
and 120-B of Indian Penal Code.
and charge (Exhibit 3) was framed and explained to
Accused pleaded not guilty and claimed
the accused.
to be tried. The proceedings abated against accused
no.3 Madhukar, who expired during the pendency of
Upon considering the evidence adduced by
the case.
the prosecution, the trial court acquitted accused No.6
Meena and held the aforesaid appellants/accused
nos.1, 2, 4 and 5 guilty of offence under Section 302,
364 r/w. 149 and 120-B of Indian Penal Code and
sentenced
as
stated
above.
Aggrieved
by
the
conviction and sentence, the appellants/accused have
filed these appeals.
7. We have heard Learned Counsel Shri Nitin Pradhan
for the Appellants and Learned APP Mrs. Shinde
the state. We
have
perused
the
records
for
and
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------------judgment 982 of 2008
considered
the
arguments
advanced
by
learned
The prosecution, in support of its case has
9.
Counsel Shri Pradhan and Learned APP for the State.
examined 11 witnesses. P.W.1 is the father of the
deceased
Ravindra.
He
is
a
resident
Kaldhari, Taluka Purandar, District Pune.
of
Village
P.W.1 has
deposed that his son Ravindra was working as Hamal
P.W.1 has deposed that
at Byculla Market, Mumbai.
on 26.3.2002 one person by name Kalange informed
ig
him that his son Ravindra was missing from Mumbai
since 20.3.2002. On receipt of the said information,
relatives.
P.W.1 came to Mumbai and made enquiries with the
He was unable to trace his son; hence, on
27.3.2002 he lodged a missing report at Byculla Police
Station.
10.
P.W.1 has further stated that he knows accused
Raosaheb Pisal (A-2).
The accused Raosaheb is a
resident of village Kaldhari and was living at Lower
Parel, Mumbai. Said Raosaheb had agricultural land at
his native village at Kaldhari and his wife used to visit
Kaldhari to look after the agricultural work. P.W.1 has
deposed that his son Ravindra used to visit the
residence of Raosaheb Pisal. PW-3 Bhanudas Kalange
had told him that Raosaheb Pisal (A-2) suspected that
Ravindra was having illicit relation with his wife and
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had therefore given Rs.3,000/- to Popat Pisal (A-1),
death of Ravindra.
Sandip Kate (A-4), and Sanjay Samge (A-5) to cause
Said Raosaheb and the accused
Popat, Sandip and Sanjay had planned to cause death
of Ravindra on 20.3.2002 by enticing him to join them
for drinks near the railway track at Dadar.
The said
plan did not succeed as Ravindra did not come to
Dadar.
Subsequently, Raosaheb told them to bring
P.W.3 further informed P.W.1
Ravindra to Mankhurd.
that while Madhukar and Raosaheb were forcing him
ig
to accompany them to Mankhurd, two policemen took
their search and recovered a knife and iron rod from
their possession and therefore took them in police
custody. P.W.3 further informed P.W.1 that since then
Ravindra was not seen in Dadar area.
P.W.1 has
deposed that based on the information given by P.W.3,
he went to the police station and lodged a complaint
dated 1.4.2002 (Exh.19) against Raosaheb Pisal,
Madhukar Pisal, Sandeep Kate, Sanjay and Popat Pisal
for kidnapping his son Ravindra.
11.
P.W.1 has deposed that Popat Pisal (A-1) was
arrested by the police and that Popat (A-1) had
volunteered to show the place of offence. P.W.1 has
stated that the said statement was made in presence
of pancha witnesses and some of his relatives as well
as the police officers.
P.W.1 had stated that he had
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------------judgment 982 of 2008
accompanied the panchas, the police officers and the
He
accused Popat Pisal to Khalapur, District Raigad.
has stated that Popat Pisal had led them to Ujaloni
Village, Khalapur, District Raigad and after alighting
from the vehicle, he took them towards a hill.
P.W.1
has deposed that Popat Pisal pointed out at a stone
which was stated to have been used for committing
the crime.
Popat Pisal thereafter pointed out at the
body lying in the valley in supine position. The police
retrieved the body, which was emanating foul smell.
The
police
ig
He identified the said dead body as that of Ravindra.
Inspector
thereafter
conducted
panchanama of the dead body as well as that of the
place of incident.
P.W.2 Baban Pawar is the witness to the recovery
12.
panchanama and the scene of offence panchanama at
Exh.22 and 23. P.W.2 has deposed that on 1.4.2002
at about 1.45 p.m. he was called at Byculla Police
Station.
Another panch witness was also present at
the police station. He has deposed that accused Popat
had disclosed that he would show the place where the
dead body of the deceased Ravindra was thrown.
He
has stated that thereafter he along with the police and
the accused Popat proceeded to Khalapur police
station.
PSI Pawar of Khalapur Police station also
accompanied them. The accused no.1 Popat led them
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to a village.
He got down from the van and took
After walking for about
them towards a hilly terrain.
half an hour, the accused no.1 showed them the place
of the incident. They saw some bloodstains and one
stone at the place of the incident. The said stone was
stained with blood. The accused no.1 thereafter took
them to a distance of about 25-30 ft. from the said
spot and showed them the body lying in the valley.
The said body was retrieved from the valley. P.W.2 has
deposed that P.W.1 had identified the body as that of
ig
Ravindra. He has stated that the head of Ravindra was
completely crushed.
The police conducted a detail
panchanama at Exh.22 and obtained his signature as
well as the signature of accused no.1. He has deposed
that the police had also drawn another panchanama
Exh.23 under which the stone and blood stained earth
came to be seized.
13.
P.W.7 Dr. Rajendra Sharma had conducted post
mortem over the body of the deceased.
He has
deposed that on 1.4.2002 he was called to village
Khadai.
He has deposed that a body of a person by
name Ravindra Pisal was found at the said spot.
said body was decomposed.
The
P.W.7 has given the
description of the clothes found on the body and has
further stated that the colour of the skin was black,
features were swollen, tongue swollen and foul smell
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------------judgment 982 of 2008
was emanating from the body.
He has deposed that
C.L.W. On face (4”x4”x1”)
(ii) C.L.W on left mandibulor region (2”x2”x1”)
(i)
on examination he found the following injuries:-
(iii) Left forearm soft tissue eaten up by birds
(12”x3”x3”)
(iv) Fracture of frontal bone
(v)
Fracture of nasal bone
Fracture of mandible.”.
ig
(vii)
(vi) Fracture of maxilla
P.W.7 has deposed that the said injuries were ante
He has opined that the death of Ravindra
mortem.
was due to multiple fractures of facial bones.
He has
deposed that the said injuries could be caused by a
severe impact by a big stone.
He has deposed the
fracture of the frontal bone alone was sufficient to
cause death.
P.W.7 had prepared the postmortem
report at Exh.32. In his cross-examination P.W.7 has
stated that the face was totally damaged due to the
injuries. He has further stated that mandible fractures
of frontal bone, nasal bone, and maxila could be
caused due to a fall from a height.
14.
P.W.8 Deepak Rajaram Chavan was attached to
Byculla Police Station as PSI.
He has stated that on
1.4.2002 his senior officer had instructed him to
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conduct enquiry in the missing report dated 27.3.2002
of Ravindra Pisal, who was missing since 20.3.2002.
He has deposed that on 1.4.2002 Ankush Pisal
of
Ravindra
Pisal,
expressed
(P.W.1), the father
suspicion that his son might have been kidnapped by
Raosaheb Pisal, Madhukar Pisal, Popat Pisal, Sandeep
Kate and Sanjay.
He has stated that he had recorded
the complaint (Exh.19) lodged by P.W.1 Ankush Pisal
against the said accused persons and registered
C.R.No.113 of 2003 under Section 364-B, 120-B r/w.
P.W.8 has further deposed that the accused Popat
15.
ig
34 of Indian Penal Code.
Pisal was brought to the police station in connection
with the said complaint. He was arrested in the said
case and was taken into custody.
He has stated that
while he was in custody, accused Popat expressed his
willingness to show the place of the offence as well as
the place where the body of Ravindra was thrown. He
had recorded the said disclosure statement under
panchanama Exhibit 22 drawn in presence of panchas
and had obtained the signature of the accused as well
as of the panchas on the said panchanama. P.W.8 has
deposed that thereafter the accused no.1 led them to
Khalapur, District Raigad.
He sought assistance of
P.S.I. Pawar from Vavoshi Police station, Khalapur.
He has
further stated that the accused took them to
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------------judgment 982 of 2008
village Ujaloni.
After alighting from the vehicle, the
accused took them towards a hilly terrain and showed
them the place of offence and one stone lying at the
The accused thereafter took them
place of offence.
towards the end of the hill and showed the place from
where the body was thrown.
P.W.8 has deposed that
the body was recovered from the place shown by the
accused. P.W.1 identified the said body as that of his
He has stated that the recovery
son Ravindra.
panchanama at Exh.22 was drawn in the presence of
Inquest over the body was prepared by PSI
ig
P.W.2.
Pawar. Spot Panchanama was drawn and the blood
stained soil, control sample of Soil, and the stone
were seized.
He has deposed that he had recorded
the supplementary statement of the complainant at
the place of the incident.
P.S.I. Pawar had called a
doctor who had conducted postmortem examination
on the body of the deceased. The body was thereafter
handed over to P.W.1 Ankush Pisal, father of the
deceased. He then returned to the police station and
added Section 302 I.P.C. and registered A.D.R. 35 of
2002 at Byculla Police Station.
16.
The sequence of events as brought on record
through the evidence of the aforementioned witnesses
clearly indicates that on 26.3.2002 P.W.1 had learnt
that his son Ravindra was missing from Mumbai since
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20.3.2002, whereupon he had lodged a missing
Upon enquiry, P.W.1 learnt that his son
report.
Ravindra was having illicit relation with the wife of
accused Raosaheb and that accused Raosaheb had
conspired with the other accused to cause death of
Ravindra.
P.W.1 therefore suspected involvement of
Raosaheb and other accused. Hence, on 1.4.2002
P.W.1 lodged F.I.R. Exh.19 against Raosaheb, Popat,
Sanjay, Sandip and Madhukar for kidnapping his son
Ravindra to kill. Pursuant to the said F.I.R. P.W.8 P.S.I.
ig
Deepak Chavan registered Crime No.113 of 2002
dated 1.04.2002 under Section 364, 120-B r/w. 34 of
against the accused persons.
I.P.C.
Accused Popat
(A-1) was arrested on the same day i.e. on 1.04.2002,
under
the
arrest
panchanama
at
Exh.22
and
subsequent to his arrest; he volunteered to show the
place where the body of the deceased Ravindra was
thrown. The said disclosure statement, which was
recorded in presence of P.W.2, had led to recovery of a
dead body, which was identified by P.W.1 as that of his
son Ravindra, whereupon P.W.8 added Section 302 of
I.P.C to the crime.
17.
Learned Counsel Shri. Pradhan has drawn our
attention to the description of the injuries recorded in
the inquest and has submitted that the face was
totally crushed and the body was beyond recognition.
He therefore claims that the identity of the body is
doubtful. Whereas Learned APP has submitted that the
identity of the body was never in dispute. She has
PW1, the father of the deceased.
18.
further argued that the body has been identified by
It is to be noted that PW1 had deposed that he
had identified the body as that of his son, Ravindra.
This statement was neither denied nor anything was
elucidated in the cross examination of this witness to
This
witness
indicate that the said body was beyond recognition.
therefore
had
no
opportunity
of
body.
In the case of Laxmibai (dead) Thr. L.Rs. &
19.
explaining the basis on which he had identified the
Anr. v. Bhagwantbuva (dead) Thr.L.Rs., & Ors.,
AIR 2013 (SC) 1204 the Apex Court has held that :
“31.
Furthermore, there cannot be any
dispute with respect to the settled legal
proposition, that if a party wishes to raise
any doubt as regards the correctness of
the statement of a witness, the said
witness must be given an opportunity to
explain his statement by drawing his
attention to that part of it, which has been
objected to that part of it, which has been
objected to by the other party, as being
untrue. Without that, it is not possible to
impeach his credibility. Such a law has
been advanced in view of the statutory
provisions enshrined in Section 138 of the
Evidence Act, 1972, which enable the
opposite party to cross examine a witness
as regards information tendered in
evidence by him during his initial
examination in chief, and the scope of this
provisions stands enlarged by Section 146
of the Evidence Act, which permits a
witness to be questioned, inter-alia, in
order to test his veracity. Thereafter, the
unchallenged part of his evidence is to be
relied upon, for the reasons that it is
impossible for the witness to explain or
elaborate upon any doubts as regards the
same, in the absence of questions put to
him with respect to the circumstances
which indicate that the version of events
provided by him, is not fit to be believed,
and the witness himself is unworthy of
credit. Thus, if a party intends to impeach
a witness, he must provide adequate
opportunity to the witness in the witness
box, to give a full and proper explanation.
The same is essential to ensure fair play
and fairness in dealing with witnesses.”
It is thus a settled legal proposition that in case the
question is not put to the witness in cross-examination
who could furnish explanation on a particular issue,
the correctness or legality of the said fact/issue could
not be raised.
In the light of these principles, and
having failed to challenge the evidence of P.W.1 and
disapprove the statement of P.W.1, challenge to the
identity of the corpus is not permissible.
Learned Counsel Shri Pradhan has further argued
20.
that PW-7 Dr. Rajendra Sharma has admitted that the
injuries found on the body of the deceased Ravindra
could be caused by a fall from height. He therefore
contends that the medical evidence does not prove
that the death of Ravindra was homicidal. It is
pertinent
to
note
that
the
evidence
on
record
sufficiently proves that, Ravindra was a resident of
Kaldhari and was working at Byculla, Mumbai. He was
ig
missing since 20.3.2002. The body of Ravindra was
recovered from a valley at Ujaloni consequent to the
disclosure statement made by Popat (A-1).
The
medical evidence amply proves that the face of the
deceased was crushed and there were multiple facial
fractures. P.W.7 had opined that these injuries could
be caused by forceful impact of stone.
Apart from a
hypothetical question whether the injuries could be
caused by a fall, the defence has not seriously
disputed the homicidal nature of death.
No material
of whatsoever nature was elucidated to give rise to
the possibility or probability of the deceased having
visited the said place at Ujaloni or having had a fall
from a height and met either an accidental or suicidal
death. Consequently, the homicidal nature of death
cannot be doubted or disputed on the basis of a
hypothetical answer given by the medical witness. The
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circumstances under which the body was recovered,
the place of recovery, the nature of injuries coupled
with other ocular and circumstantial evidence, which
shall be discussed hereinafter, leaves no doubt that
the death of Ravindra was homicidal.
21.
So
far
conspiracy
is
as
the
motive
concerned,
it
and
is
the
the
charge
case
of
of
the
prosecution that the deceased was having illicit
relationship with the wife of the accused Raosaheb (A-
ig
2) as a result thereof, the aforesaid appellants/
accused had hatched a conspiracy to kill Ravindra.
it
is
imperative
Therefore,
to
see
whether
the
prosecution has adduced any reliable evidence to
establish the motive as well the charge of conspiracy.
22.
In this regard, the evidence of P.W.1 indicates
that he was residing at Kaldhari. Raosaheb Pisal who
is also a resident of Village Kaldhari was living at
Lower Parel, Mumbai. The wife of Raosaheb used to
visit village Kaldhari to look after the agricultural
work. P.W.1 has deposed that his son Ravindra used
to visit the house of Raosaheb Pisal, at Kaldhari
village.
He has further deposed that he had learnt
from P.W.3 Bhanudas that the deceased was having
illicit relation with wife of Raosaheb Pisal due to which
Raosaheb had decided to cause death of Ravindra.
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------------judgment 982 of 2008
P.W.3 Bhanudas is a resident of village Kaldhari.
23.
He has deposed that the accused Raosaheb and
Madhukar are the sons of his maternal uncle and that
both were residing in a room at Lower Parel, Mumbai.
He has further deposed that he had come to Mumbai
on 14.3.2002 and stayed at the house of his uncle
Pralhad.
Since there was no sufficient space in the
room, he used to sleep in the room of Raosaheb. He
has further stated that Ravindra was working at
ig
Byculla Vegetable market and that he too was residing
24.
in the room of the accused Raosaheb.
P.W.3 has further stated that Raosaheb had
learnt from his mother that Ravindra was having illicit
relation with his wife Manisha. P.W.3 has deposed that
Raosaheb had told him that he wanted to take
revenge against Ravindra.
P.W.3 has further stated
that on 19.3.2002 at about 10.00 to 10.30 p.m. when
he had gone to the house of Raosaheb to sleep, he
had heard Raosaheb and other accused planning to kill
Ravindra on Railway line at Dadar.
He had further
stated that on 20.3.2002 at about 11.15 p.m., while
they were in the room of Raosaheb, Madhukar had
received a phone call from Raosaheb. He has deposed
that Raosaheb had called Madhukar at Dadar.
He has
stated that he accompanied Madhukar at Dadar Flower
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market.
He has stated that on reaching Dadar, he
had told Raosaheb not to beat Ravindra and instead to
verify the facts. In the meanwhile, accused Sandeep
Kate came and told Raosaheb that Ravindra was not
ready to come to Dadar Railway line.
P.W.3 had
deposed that subsequently accused Popat, Sandip,
Ravindra and Sanjay went to Mankhurd by taxi.
Raosaheb brought another taxi and requested him to
accompany him and Madhukar at Mankhurd. He has
stated that he refused to accompany them and at that
ig
time the police in civil dress arrested him, accused
Raosaheb and Madhukar and took them to the police
The police took their personal
chowki at Dadar.
search and recovered one iron bar and knife from
possession of Raosaheb.
He stated that the police
released him and detained Madhukar and Raosaheb in
custody.
25.
P.W.3 has deposed that he returned to his native
place on 29.3.2002. On 30.3.2002, he was called at
Byculla Police Station for enquiry. He has stated in his
cross-examination that on the date of his arrest by
Dadar Police, he had not disclosed that Raosaheb and
other accused had hatched a plan to kill Ravindra. He
has further stated that he had gone to the police
station at Byculla on 5.4.2002 when his statement
was recorded by Magistrate under Section 164 of
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------------judgment 982 of 2008
Cr.P.C.
He has denied that the accused had not
conspired to kill Ravindra. He has further denied that
he was deposing falsely under the pressure of the
26.
police.
The contention of learned Counsel Mr. Nitin
Pradhan that this witness is an accomplice has no
merits as the evidence of P.W.3 clearly indicates that
he was not a party to the conspiracy but had only over
heard the plans of the accused. The mere fact that he
ig
had accompanied the accused Madhukar to Dadar
would not be a reason to brand him as an accomplice
when the evidence on record clearly indicates that he
was not in any manner associated with the crime. He
had not aided or encouraged the accused but had had
tried to persuade Raosaheb not to beat Ravindra but
to verify the facts from him. This witness had refused
to accompany the accused to Mankhurd and had
subsequently disclosed the plans of the accused to
P.W.1 Anksuh Pisal. The facts and circumstances,
therefore, do not even remotely suggest that the
witness was an accomplice. Consequently, there is no
embargo to rely upon the testimony of this witness.
27.
The evidence of P.W.3 indicates that he was not a
stranger but was related to the accused Raosaheb and
Madhukar. Hence, it was not anomalous for P.W.3
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Raosaheb to confide in him that Ravindra was having
plans
to
take
revenge
against
Ravindra.
illicit relations with his wife and further to share his
The
uncontroverted evidence of P.W.3 also reveals that he
used to sleep in the room of Raosaheb at Lower Parel,
Mumbai.
Hence, his presence in the room of
Raosaheb
at
the
time
of
conspiracy
cannot
be
doubted. The evidence of this witness that he had
heard the accused planning to kill Ravindra cannot be
disbelieved; more so, when there is absolutely no
ig
material to impeach the credibility of the witness or to
show that he had any reason to falsely implicate the
accused Raosaheb and Madhukar, who are related to
him.
The prosecution evidence brought on record
through P.W.3 amply proves that Raosaheb suspected
that Ravindra was having illicit relation with his wife
and had decided to take revenge, which led to plotting
and planning with the other accused to eliminate
Ravindra.
Thus, the evidence of this witness not only
proves the motive but also proves the conspiracy
hatched by the accused to kill Ravindra.
28.
The prosecution has examined P.W.4 Kavita
Kakde, who is the sole eyewitness to the incident. She
has stated that she knows Meena (acquitted accused
no.6).
She has deposed that that in the year 2002
she and Meena were working as maidservants in BARC
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------------judgment 982 of 2008
Colony at Mankhurd.
She has stated that the house
sometimes stay in the house of Meena.
of Meena is close to her house and that she used to
She has
stated that she knows accused Shankar and Sanjay,
who were residing with Meena. She has further stated
that accused Sandip and Popat used to sometimes
visit the house of Meena.
P.W.4 Kavita has deposed that on 20.03.2002 she
29.
had been to the house of Meena.
On the same day
ig
during evening hours, the accused no.1 Popat and
accused no.4 Sandep came to the house of Meena
Meena had told her that the said
alongwith one boy.
boy was Ravindra and was a friend of Sanjay.
They
spent the night in the house of Meena and in the
morning, Meena went to work, while accused no.1
Popat and others left the house and returned at about
3.00 p.m.
P.W.4 Kavita has further stated that she
had cooked the meat brought by Popat and had meal
in the house of Meena. P.W.4 Kavita has stated that
later
in the
day, Meena had
requested
her to
accompany her to Poona to attend marriage ceremony
of Sanjay.
30.
P.W.4 Kavita has deposed that she along with
Meena, Shankar, Sanjay, Sandip, Popat and Ravindra
left the house at about 5.00 p.m. to go to Poona. They
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first went to S.T. Stand, Mankhurd and took a S.T. Bus
Khopoli bus stand by autorickshaw.
to go to Panvel. They got down at Panvel and went to
She has deposed
accused
Popat,
Sandip,
that she and Meena waited at the bus stop while the
Sanjay,
Madhukar and
Ravindra went to Khopoli market to drink liquor. The
accused and Ravindra returned after about 15-20
minutes and they took a bus to go to village Palan.
p.m.
They reached village Palan at about 10.00 to 10.30
They got down at Palan and walked towards a
P.W.3 has stated that Ravindra was under the
31.
ig
hilly area.
influence of Alcohol and was unable to walk.
Accused
Sanjay and Sandip had assisted Ravindra to walk.
She has stated that Ravindra had asked for water, but
the accused Sanjay told Ravindra that he did not have
water and asked him to drink liquor.
down for a while.
Ravindra sat
He refused to drink liquor and
pushed away the liquor bottle. Ravindra told accused
that he knew the reason why they had brought him
there. He further told the accused that he was aware
that they had brought him there to beat him.
P.W.3
has stated that she had asked Meena as to why
Ravindra was talking in such a way and that Meena
had told her to keep quiet.
P.W.3 has stated that
Ravindra started abusing them, at which time Popat
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------------judgment 982 of 2008
lifted a stone and hit the stone on the left occipital
Said Popat once again lifted the stone and hit
on occipital
the
region,
due
to
which
region.
Ravindra
speak.
sustained bleeding head injury and was unable to
P.W.3 stated that thereafter accused Popat,
Sandip and Sanjay lifted Ravindra and carried him
towards a hilly area and returned back within five
minutes.
Thereafter she along with Meena, Popat,
P.W.4 has deposed that at about 1.30 to 2.00
ig
32.
Sandip and Sanjay walked towards the road.
a.m. while they were walking by the roadside, one
person from the nearby village asked them as to why
they were standing there at such late hours. Meena
told him that they were going to Pali Ganpati but had
to get down because of the quarrel with the driver.
The said person told them that they would not get any
vehicle at such odd hours and took them to the house
of one rickshaw driver and requested the said driver
to take them to Khopoli.
P.W.4 has stated that said
rickshaw driver dropped them at Khopoli.
Thereafter,
they took a bus and proceeded to Mankhurd.
33.
P.W.4 has stated that Sanjay had told her not to
disclose the incident to anyone and had threatened to
kill her in the same manner.
P.W.4 has stated that
thereafter all of them went to the house of Meena and
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on the next morning, she returned to her house.
P.W.4 has stated that on 14.4.2002 she was called to
Byculla Police Station and that the police had enquired
She has stated that she
with her about the incident.
had not disclosed the incident to anyone due to fear.
She has stated that she was called to Mazgaon Court
on 16.4.2002 and that her statement was recorded by
34.
the Metropolitan Magistrate.
In her cross examination she has stated that the
ig
police had sent the message about 7-8 days prior to
14.4.2002 and had asked her to come to the police
station. She has stated that the house of Meena is at
about five minutes walking distance from her house.
She has further stated that the relations between her
family and the family of Meena were cordial and that
her parents had never objected to her staying with
Meena. She has stated that she had not sought
permission of her parents to accompany Meena to
attend the marriage at Pune.
She has stated that
after her return, she had told her parents that she had
gone to attend the marriage of Sandesh.
She has
stated that they had arrived at Khopoli from Mankhurd
at about 7.00 to 7.30 p.m.
She has stated that after
they got down at Palan, they had walked for about
half an hour to reach the hilly terrain.
She has stated
that she had not seen the dead body of Ravindra after
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------------judgment 982 of 2008
the incident.
She has further stated that she has not
shown the place of the incident to the police and that
the police had not taken her to the spot.
She has
stated that the police had not shown her the stone by
which Ravindra was assaulted.
35.
Learned Counsel Mr. Nitin Pradhan has argued
that the evidence of this witness is unnatural and
suffers from inherent incredibility on the premise that
the if accused had allegedly planned to kill Ravindra,
ig
they would take precaution to commit the said crime
in secrecy and would not secure presence of any
He, therefore, claims that the presence of
witness.
P.W.4 at the place of the incident is doubtful.
He has
further argued that though P.W.4 has stated that she
is a eye witness, she has not narrated the incident to
anyone.
Her
statement
was
recorded
after
considerable time and all these facts cast doubt on her
presence at the place of incident.
In support of his
submissions, learned Counsel Mr. Nitin Pradhan has
placed
reliance
on
following
decisions
(1)
Vemireddy Satyanarayan Reddy & Ors. vs. State
of
Hyderabad 1956 SC 379,
(2)
Vadivelu
Thevur vs. State of Madras AIR 1957 SC 614, (3)
Anil Phukan vs. State of Assam (1993) 3 SCC
282, (4) Jagdish Prasad & Ors. vs. State of M.P.
1994 Cr.L.J. 1106, (5) Lallu Manjhi vs. State of
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Jharkhand, (6) (2003) 2 SCC 401
Joseph vs.
Govind
State of Kerala (2003) 1 SCC 465, (7)
Raju vs. State (2012) 4 SCC 722, (8) Tanaji
Shamrao Nalavade & Ors. vs. The State of
Maharashtra 2011(3) Bom.C.R. (Cri.) 506, (9)
Arvind
Anand
Bandal
&
Ors.
vs.
State
of
Maharashtra 2012 (1) Bom.C.R. (Cri.) 532.
The learned APP has argued that P.W.4 is an
36.
independent eye witness.
She has argued that the
in
all
material
testimony of this witness is reliable and corroborated
aspects
by
other
witnesses
and
circumstantial evidence.
37.
The legal position that the testimony of a solitary
witness can be made on the basis of conclusion is well
settled. In the case of Vadivelu Thevur vs. State of
Maharashtra AIR 1957 SC 614 the Apex Court has
held that law of evidence does not require any
particular number of witnesses to be examined in
proof of a given crime. The Apex Court held that the
testimony of a single witness can be relied upon if it is
entirely reliable.
The Apex Court held that it is well-
established law that it is the quality and not the
quantity of the evidence that is necessary for proving
of a fact. The Apex Court classified the oral testimony
into three categories, namely (1) wholly reliable, (2)
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------------judgment 982 of 2008
Wholly unreliable, and (3) neither wholly reliable nor
It was held that in the first two
wholly unreliable.
categories there would be no difficulty in either
witness.
accepting or discarding the testimony of a single
The difficulty arises in the third category
where the court has to be circumspect and has to look
for corroboration in material particulars by reliable
testimony, direct or circumstantial, before acting upon
The principles laid down by the Apex Court in the
ig
38.
the testimony of a single witness.
Case of Vadivelu Thevur vs. State of Madras (Supra)
have been followed in the case of Lallu Manjhi vs. State
of Jharkhand (Supra). In the case of Joseph vs. State
of Kerala (Supra), the Apex Court has held that:-
“......when there is a sole witness to the
incident, his evidence has to be accepted with
an amount of caution and after testing it on the
touchstone of the evidence tendered by other
witnesses or evidence as recorded”.
39.
On the same lines, the Apex Court in the case of
Govind Raju vs. State (supra) has held that:
“29. The evidence of a sole witness should be
cogent, reliable and must essentially fit into the
chain of events that have been stated by the
prosecution. When the prosecution relied upon
the testimony of a sole eyewitness, then such
evidence has to be wholly reliable and
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40.
trustworthy.
Presence of such witness at the
occurrence should not be doubtful.
If the
evidence of the sole witness is in conflict with
the other witnesses, it may not be safe to make
such a statement as a foundation of the
conviction o f the accused. These are the few
principles
which
the
court
has
stated
consistently and with certainty.
In the light of the well-settled principles laid
down, the question that falls for determination is
whether the testimony of P.W.4 is cogent, reliable, and
trustworthy. The evidence of P.W.4 was a young girl
ig
of about fourteen years, reveals that Meena was her
neighbor and a close friend. They were working
together and P.W.4 was sometimes staying in the
house of Meena.
P.W.4 knew the accused Popat,
Sanjay and Sandeep as they used to visit Meena. Her
testimony indicates that Meena had requested her to
accompany her to Poona for the marriage of accused
Sanjay. In such circumstances, the conduct of P.W.4 in
accompanying Meena cannot be said to be unnatural.
This young girl had accompanied the accused and
Meena without the knowledge of her parents.
had witnessed a ghastly act of murder.
She
She has
explained that she was threatened by the accused not
to disclose the incident to any one and that she was
scared.
Under the circumstances, delay in reporting
the incident either to her parents or to the police is of
little consequence.
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------------judgment 982 of 2008
It is also pertinent to note that P.W.4 has given a
41.
detail narration of the events from the time the
accused had come to the house of Meena until the
time they returned home after the alleged incident.
She was neither in inimical terms with the accused nor
was she favourably deposed towards the victim and
his family. She had no reason to concoct a false story
and rope in not only the accused, but also her friend
Meena in a serious case of murder.
not
suffer
from
ig
does
any
Her testimony
embellishment,
improvements, variations, or exaggerations.
Though
she was cross-examined at length, no contradictions
or omissions have been brought on record to impeach
her
credibility.
In
the
absence
of
any
such
discrepancy the testimony of P.W.4 cannot be brushed
aside as unreliable and her presence at the place of
the incident cannot be held to be doubtful on a broad
proposition of human conduct.
We are of the
considered view that the testimony of this witness is
cogent,
credible,
and
reliable
and
deserves
acceptance.
42.
The evidence of P.W.4 that the accused were
present at Mankurd on 20.03.2002 is consistent with
the evidence of P.W.3. Her evidence further indicates
that after the incident they had walked for some
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distance and thereafter had hired a rickshaw to come
to Khapoli bus stand. This statement is corroborated
by P.W.5 Rajendra Lakimale, the rickshaw driver,
whose rickshaw was hired by the accused to go to
Khopoli bus stand. The testimony of this witness
clearly indicates that on 21.03.2002 at about 1.30 to
1.45 a.m, six persons including two ladies were
brought to his house by one of the villagers with a
request to drop them to the bus stop.
He has
deposed that he had dropped the said six persons
ig
including the two ladies to Khopoli bus stop.
This
witness had identified accused Sandip, Sanjay, Popat
and accused Meena in the identification parade held
by P.W.6 Bhikaji Mungekar.
The evidence of P.W.6 Bhikaji Mungekar, the
43.
Special Executive Magistrate, proves that he had
conducted the ID parade at the request of Byculla
Police Station.
He has deposed that the witness
P.W.5 Rajendra Lakimale had identified the accused
Popat, Sandeep, Sanjay and Meena as the same
persons who had approached him with a request to
drop them at Khopoli Bus stand. He has given detail
narration of the procedure followed by him. He had
taken precautions to ensure that that the witnesses
were kept separately and could not see the suspects.
A perusal of the testimony of this witness leaves no
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------------judgment 982 of 2008
doubt that he had followed the proper procedure and
that P.W.5 had identified Popat, Sanjay, Sandeep and
Meena amongst the dummy witnesses who were made
to stand in the respective parades held by him. The
evidence of P.W.5 therefore fortifies the testimony of
P.W.4 that the accused Popat, Sanjay, Sandeep and
Meena were present in the same locality on the date
44.
and time as specified by P.W.4.
Another formidable incriminating circumstance
ig
against the accused is that while the accused Popat
was in custody he had made a disclosure statement,
Ravindra.
which had led to the recovery of the dead body of
The Apex Court in the case of Madhu v/s.
State of Kerala
(2012) 2 SCC 399 has held as
under:
....49. As an exception, Section 27 of
the Indian Evidence Act provides that a
confessional statement made to the police
officer or while an accused is in police
custody, can be proved against him, if the
same leads to the discovery of an unknown
fact. The rationale of Section 25 and 26 of
the Evidence Act is, that police may procure
a confession by coercion or threat.
The
exception postulated under Section 27 of the
Evidence Act is applicable only if the
confessional statement leads to the discovery
of some new fact. The relevance under the
exception postulated by Section 27 aforesaid,
is limited “.... as relates distinctly to the fact
thereby discovered...”. The rationale behind
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45.
Section 27 of the Evidence Act is, that the
facts in question would have remained
unknown but for the disclosure of the same
by the accused. The discovery of fact itself,
therefore substantiates the truth of the
confessional statement. And since it is truth
that a court must endeavour to search,
Section 27 aforesaid has been incorporated
as an exception to the mandate contained in
Section 25 and 26 of the Evidence Act.”
In the case of State of Maharashtra vs.
ig
Court has held that :-
Suresh, reported in 2000(1) SCC P-47 the Apex
“26. We too countenance three possibilities
when an accused points out the place where
a dead body or an incriminating material was
concealed without stating that it was
concealed by himself. One is that he himself
would have concealed it. Second is that he
would have seen somebody else concealing
it. And the third is that he would have been
told by another person that it was concealed
there. But if the accused declines to tell the
criminal court that his knowledge about the
concealment was on account of one of the
last two possibilities the criminal court can
presume that it was concealed by the
accused himself. This is because the accused
is the only person who can offer the
explanation as to how else he came to know
of such concealment and if he chooses to
refrain from telling the court as to how else
he came to know of it, the presumption is a
well-justified course to be adopted by the
criminal court that the concealment was
made by himself. Such an interpretation is
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46.
not inconsistent with the principle embodied
in Section 27 of the Evidence Act.”
In the instant case, the deceased Ravindra was a
Mumbai.
He
was
missing
resident of village Khapoli and was working at Byculla,
from
Mumbai
since
20.03.2002. The body of Ravindra was recovered from
a Valley in village Ujaloni pursuant to the information
given by the accused Popat. There is no material on
record to indicate that the body was recovered from
ig
an open space, which was not only accessible but was
visible to the public. Similarly, there is nothing on
record to even remotely suggest that location of the
body was already known to the prosecution witnesses
or the investigating agency.
The accused has not
offered any explanation as to how he came to know
that the body of Ravindra was lying in the valley.
Absence of explanation gives rise to the presumption
that the accused Popat had himself thrown the body of
the deceased in the said valley. Therefore, the
discovery of the said fact, which is admissible under
section 27 of the Indian Evidence Act, is also one of
the incriminating circumstances, which corroborates
the evidence of the eye witness.
47.
The medical evidence proves that Ravindra had
suffered
multiple
facial
fractures.
His
evidence
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indicates that the said injuries were ante mortem and
fatal and could be caused by a stone. The medical
evidence therefore corroborates t he ocular evidence
48.
of P.W.4.
Learned Counsel Shri Pradhan has argued that
the prosecution had not shown the stone to the doctor
and as such not made any attempts to prove that the
injury found on the deceased could be caused by the
said stone.
He has further argued that the
ig
prosecution has not placed on record the C.A. Report
and in the absence of such evidence it cannot be
presumed that the death of Ravindra was caused by
the stone. (Article 5).
He has relied upon the
decision in the case of (1) Kartarey & Ors. vs. The
State of U.P. (1976) 1 SCC 172, (2) Ishwar Singh
v/s. State of U.P. (1976) 4SCC 355,
and (3)
Gurmej Singh & Ors. Vs. State of Punjab 1991
SCC 75.
49.
In the case of Kartarey (supra) the Apex Court
had emphasized the importance of eliciting the opinion
of medical witness who had examined the injuries of
the victim.
It was held that :
“ It is the duty of the prosecution, and no
less of the Court, to see that the alleged
weapon of the offence, if available, is shown
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------------judgment 982 of 2008
to the medical witness and his opinion is
invited as to whether all or any of the
injuries on the victim can be caused with
that weapon.
Failure to do so may,
sometimes, cause cause aberration in the
course of justice.”
These principles have been reiterated in the case of
Ishwar Singh and Gurmej Singh (supra).
50.
It is true that in the instant case the prosecution
as well as the court had not shown the stone (Article
ig
5) to the medical witness and had not invited his
opinion as to whether the injuries sustained by
Ravindra could be caused by the said stone.
It is also
true that the prosecution has not placed on record the
C.A. Report and as such there is no evidence on
record to prove that the stone was stained with
human blood and that the same was used as a
weapon of offence.
In our considered view showing
the weapon to the medical witness and getting the
stone
examined
and
analyzed
by
the
chemical
analyzer would have only strengthened the case of the
prosecution, but it does not in any manner cause any
aberration to the prosecution case.
Any deficiencies
in the investigation or lapse on the part of the
prosecution
does
not
necessarily
render
the
prosecution case unworthy of credit.
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51.
In the case of Ram Bihari Yadav vs. State of
Bihar & Ors (1998) 4 SCC 517, the Apex Court,
while dealing with the effect of shoddy investigation,
investigation
or
to
the
has held that if primacy was given to negligent
omissions
and
lapses
committed in the course of investigation, it will shake
the confidence of the people not only in the law
enforcing agency but on the administration of justice.
Similarly, in case of Surendra Paswan vs. State of
Jharkhand (2003) 12 SCC 360, the Apex Court has
examination
ig
held that not sending blood sample for chemical
may
constitute
a
deficiency
in
the
investigation, but the same does not corrode the
evidentiary value of the eye witness.
In the case of Amar Singh vs. Balwinder
52.
Singh & ors. (2003) 2 SCC 518 the Apex Court has
held that in a case where the investigation is found to
be defective, the court has to be more circumspect in
evaluating the evidence.
But it would not be right to
completely throw out the prosecution case on account
of such defects, for doing so would amount to playing
in the hands of the investigating Officer who may have
kept the investigation designedly defective.
53.
In the light of the above, the failure on the part
of the Investigating Officer or the prosecution to show
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------------judgment 982 of 2008
the stone (Article 5) to the medical officer and further
to place on record the report of Chemical Examination
would not be sufficient to discredit the prosecution
case, which is otherwise proved by direct evidence of
P.W.4. and other circumstantial evidence discussed
above.
Hence, we do not find any merits in the
submissions of learned Counsel Shri Pradhan.
of
Thus, upon careful consideration of the evidence
the
prosecution,
54
in our
considered view
the
ig
prosecution has established the guilt of the accused
beyond reasonable doubt. We do not find any illegality
or infirmity which warrants interference with the
conviction as well as sentence imposed by the trial
court.
.
In the result, the appeals have no merit and are
(ANUJA PRABHUDESSAI, J.)
(P. V. HARDAS, J.)
hereby dismissed.
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