Md. Jabbar Ali & Ors. Vs. The State of Assam

Md. Jabbar Ali & Ors. Vs. The State of Assam 


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1105 OF 2010
Md. Jabbar Ali & Ors. … APPELLANT(S)
Vs.
The State of Assam ... RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.1128 OF 2010
Md. Ajmot Ali … APPELLANT(S)
Vs.
The State of Assam ... RESPONDENT(S)
J U D G M E N T
NAGARATHNA, J.
1. These Criminal Appeals have been filed assailing the common
impugned judgment and order dated 21.08.2009 passed by the
Gauhati High Court in Criminal Appeal No. 48 of 2007 by which the
judgment of conviction dated 29.12.2006 and order of sentence dated
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30.12.2006 passed in Special Case No.46 of 2004 by the Court of
Additional Sessions Judge, Fast Track Court, Barpeta (‘Fast Track
Court’, for the sake of convenience) has been upheld by dismissing the
aforesaid appeals and consequently confirming the conviction of all the
accused persons.
2. Since both the criminal appeals arise out of a common impugned
judgment, these appeals were heard together and are being disposed
of by this common judgment.
3. For the sake of convenience, the parties shall be referred to as
per their rank before the Fast Track Court.
4. The Fast Track Court vide its judgment dated 29.12.2006
convicted the appellants herein viz., Md. Yunush Ali (accused No.1),
Md. Hasan Ali (accused No.2), Md. Omar Ali (accused No.3), Md.
Jabbar Ali (accused No.4), Md. Tabibor Rahman (accused No.5), Mustt.
Hazerabhanu (accused No.6), Mustt. Chandrabanu (accused No.7),
Md. Moyan Ali (accused No.10) and Md. Sahed Ali (accused No.11) [all
appellants in Criminal Appeal No. 1105 of 2010] and Md. Ajmot
Ali (accused No. 8) [appellant in Criminal Appeal No. 1128 of 2010].
5. The present appeal qua accused No.1 stood abated vide order
dated 04.10.2010 since he died on 06.11.2009 during the pendency of
the aforesaid appeals.
6. By its judgment dated 30.12.2006, the Fast Track Court
sentenced accused Nos.4, 10 and 11 to undergo rigorous imprisonment
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for life along with a fine of Rs.2,000/- each and in default thereof to
undergo rigorous imprisonment for two months more, for commission
of offence punishable under Section 302 read with Section 149 of the
Indian Penal Code (‘IPC’, for short). Each of these accused have been
sentenced to undergo rigorous imprisonment for one year each for the
offence punishable under Section 148 IPC, rigorous imprisonment for
six months for the offence punishable under Section 323 IPC read with
Section 148 IPC and rigorous imprisonment for two months for the
offence punishable under Section 447 IPC read with Section 149 IPC.
All the sentences were directed to run concurrently.
7. By the same judgment of the Fast Track Court, accused Nos. 2,
3, 6, 7 and 8 were sentenced to undergo simple imprisonment for a
period of one year each for the offence punishable under Section 148
IPC, simple imprisonment for six months for the offence punishable
under Section 323 IPC read with Section 149 IPC and simple
imprisonment of two months for the offence punishable under Section
447 IPC read with Section 149 IPC. All the sentences were directed to
run concurrently.
8. By the judgment of the Fast Track Court, accused Nos.1 and 5
were sentenced to undergo simple imprisonment for a period of one
year each for the offence punishable under Section 148 IPC; simple
imprisonment for one year for the offence punishable under Section
324 IPC read with Section 149 IPC, simple imprisonment for six
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months for the offence punishable under Section 323 read with Section
149 IPC and simple imprisonment for two months for the offence
punishable under Section 447 IPC read with Section 149 IPC. All the
sentences were directed to run concurrently.
9. Currently, all the accused-appellants are on bail. accused No.4
and accused No.10 were granted bail vide order of this Court dated
18.08.2017; accused No.11 was granted bail by order dated
03.04.2017 and the accused Nos.2, 3, 5, 6, 7 and 8 were granted bail
vide order dated 25.10.2010.
10. Succinctly stated, the case of the prosecution is that on
19.11.1999 at about 7:00 a.m. when Md. Baju Mollik (PW-6) had gone
to plough his land, an altercation took place between him and accused
No.11. At that time, the other co-accused armed with falla, jong,
dagger, lathi etc. attacked Md. Baju Mollik. Ekkabar Ali, Md. Samad
Ali (PW-1) and Jonab Ali (PW-4) came to the place of occurrence
whereupon accused No.2 stabbed Ekkabar Ali in the abdomen with a
falla as a result of which Ekkabar Ali became unconscious and
succumbed to his injury shortly thereafter. That accused No.11
stabbed Md. Samad Ali (PW-1) with a falla whereas accused No.8
stabbed PW-1 with a fishing prong. Further, accused No.5 stabbed PW4 with a spear. The other accused were present at the place of
occurrence being armed with deadly weapons so that no other person
could come and prevent the commission of the alleged offences.
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11. An FIR/Ejahar was lodged by Md. Baju Mollik on 19.11.1999 at
about 9:00 a.m. which was registered at Police Station,
Barpeta being Case No. 1022/99 under Sections
147/148/149/447/323/324/307/302 IPC.
12. After investigation by the police, a Charge Sheet was submitted
against the persons accused of the aforesaid offences.
13. The accused appeared before the Court of learned Additional
Chief Judicial Magistrate, Barpeta but as the offence punishable under
Sections 307/302 are triable by court of sessions the learned ADJ
committed the case to the Court of Sessions, Barpeta. The accused
appeared before the Court of Sessions, Barpeta but the case was
transferred to the Fast Track Court, Barpeta for adjudication.
14. Thereafter, the accused appeared before the Fast Track Court
and faced trial. Charges were framed against the accused for the
respective offences and the same were read over and explained to the
accused to which they pleaded ‘not guilty’ and claimed to be tried.
15. The prosecution examined altogether ten witnesses. Thereafter,
statements of the accused under Section 313 of the Code of Criminal
Procedure, 1973 (‘CrPC’, for short) were recorded. All the accused
denied the alleged occurrence and submitted that they were innocent
and had been falsely implicated. The accused also examined two
witnesses in support of their defence.
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16. The Fast Track Court on considering the evidence on record
came to the following conclusions:
(i) on minutely scrutinizing the evidence of PW-1 and PW-2, it is
noted that the evidence of PW-1 lends support to the evidence
of PW-2. The evidence of PWs-1 and 2 also finds corroboration
with the medical evidence. The presence of these witnesses at
the place of occurrence cannot be doubted. The two are injured
witnesses in the occurrence and they sustained injuries on the
said day. The defence failed to impeach the credibility of these
witnesses in so far as the involvement of accused persons is
concerned and therefore, evidence of PW-1 and PW-2 are
cogent and reliable and the same are trustworthy witnesses.
The ocular evidence of these witnesses found corroboration
with the medical evidence adduced by Dr. D.C. Sarma (PW-7)
and Dr. S.C. Sarma (PW-9).
(ii) no doubt that there are minor variations in the evidence of PW6, informant of this case, with the evidence of PWs-1 and 2,
but this witness has clearly implicated accused-Sahed Ali
which finds corroboration from the evidence of PWs-1 and 2.
There is no ground to disbelieve the version of PW-6 as well.
(iii) the evidence of Inam Ali (PW-3) who is a reported witness,
Jonab Ali (PW-4) who sustained injury on his left ring finger
during the incident and Hakim Khan (PW-5) who was not an
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eye-witness but saw the accused near the place of occurrence,
lends credence to the correctness of the prosecution case.
(iv) the Investigating Officer Biseswar Singha (PW-10) prepared
the sketch/map of the place of occurrence and proved the
same along with his signature. The sketch/map shows that
the place of occurrence is a disputed land. Though, both the
informant and the accused have claimed the land, it transpires
from the evidence of the prosecution that the disputed land
where the incident occurred was in possession of the
complainant’s party. During investigation, PW-10 also seized
the weapon of assault and prepared a seizure list which bears
his signature.
(v) the discrepancies pointed out by the learned counsel for the
defence are trivial in nature and cannot be said to have
destroyed or demolished the case of the prosecution. The
discrepancies are due to normal errors of memory or due to
lapse of time. Further, the evidence of the two defence
witnesses failed to corroborate the plea of alibi taken by the
accused.
(vi) the defence witnesses failed to establish that the persons
accused were not present at the place of occurrence at the time
of the incident and that they did not kill the deceased person.
The reports of the doctor show that the deceased was killed at
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7 or 8 a.m. and the FIR was lodged promptly. All the accused
were named in the FIR. The parties were known to each other.
Thus, it is proved that all the accused came to the place of
occurrence being armed with deadly weapons such as falla,
lathi, surki, etc. by forming an unlawful assembly. Out of them,
accused Md. Sahed Ali, Md. Jabbar Ali and Md. Hasan Ali
assaulted PW-1 with a blunt object; accused-Md. Yunush Ali
and Md. Tabibor Rahman assaulted PW-2 with a sharp
pointed weapon; accused-Md. Ajmot Ali assaulted PW-4 and
accused Md. Sahed Ali assaulted PW-5. accused-Md. Jabbar
Ali, Md. Sahed Ali and Md. Moyan Ali gave a fatal blow to
Ekkabar Ali as a result of which he died. The weapons used
by the accused were dangerous weapons which clearly
indicate that the accused had an intention to kill Ekkabar Ali.
Thus, all the accused were held guilty and were convicted and
sentenced by the Fast Track Court as has already been
mentioned above.
17. In the criminal appeal filed by the accused before the High Court,
on considering the submissions made on their behalf as well as the
State, the High Court noted as under:
(i) the evidence of PW-1, PW-2 and PW-5 make it clear that to
prevent PW-6 from ploughing the land where the occurrence
took place, the accused had come to the land in question
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armed with dangerous weapons like lathi, fishing prong, falla
and surki. An assembly of the accused persons (who were more
than five) was formed on the day of occurrence and deposition
of these witnesses make it clear that the persons accused had
intended to take possession of the land on which PW-6 was
ploughing and to prevent him from further ploughing the land.
The prosecution has successfully established formation of an
unlawful assembly with a common object.
(ii) the evidence of PW-1, PW-2, PW-5 and PW-6 make it clear that
when the deceased Ekkabar Ali tried to intervene in the
matter, injuries were caused on his abdomen with a sharp
weapon, resulting in his death and the same were caused at
the instance of accused-Md. Sahed Ali. The causing of injuries
was in furtherance of the common object of unlawful assembly
formed by the accused persons. While it is correct that the
evidence of the witnesses are at variance as regards which one
of the accused had inflicted injury on the abdomen of the
deceased, the said fact will not be very relevant if liability is
otherwise attributable by virtue of the provisions of Section
149 of the IPC. Thus, it was held that Md. Jabbar Ali, Md.
Sahed Ali and Md. Moyan Ali, being members of an unlawful
assembly were liable for causing the death of (deceased)
Ekkabar Ali.
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(iii) it is an established principle of law that evidence tendered by
different prosecution witnesses have to be considered as a
whole and such evidence cannot be put in different
compartments and considered separately. The appreciation
must be of the totality of the evidence brought on record by
different witnesses. While it is correct that PW-6 had
implicated only four of the accused persons, the evidence of
the said witness cannot be construed to be another version of
the prosecution case. The evidence of PW-6 is supplementary
and not in derogation of the evidence of other prosecution
witnesses examined in the present case.
(iv) the injuries suffered by PW-1, PW-2, PW-4 and PW-5 are fully
corroborated by the evidence of PW-7 and PW-9 as well as the
reports of the injuries exhibited by the prosecution witnesses.
(v) the evidence of PW-10 established that PW-6 had given the
land for cultivation on ‘adhi’ basis and that the accused
person’s right to possess the land is also not established.
(vi) there was no fault with the conviction and sentence of the
accused passed by the Fast Track Court under Section 447 of
IPC read with Section 149 of IPC. That when all the persons
accused in the instant case had formed an unlawful assembly
and the death of Ekkabar Ali was on account of injuries
caused by some members of the unlawful assembly, the Fast
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Track Court convicted only three out of eleven accused under
Section 302 of IPC read with Section 149 of IPC and the others
were acquitted of the said charges. That the reason for such
acquittal was not clear, however, since the acquittal of the said
accused was not challenged, the High Court refrained from
getting further into the said question.
(vii) the judgment and sentence passed by the Fast Track Court in
respect of each person accused was thus upheld and affirmed
wholly.
18. We have heard Sri Raj Kishor Choudhary, learned counsel for the
appellants-accused and Sri Shuvodeep Roy, learned counsel for the
respondent-State and perused the material on record.
19. Learned counsel for the appellants submitted that the High Court
was not right in confirming the judgment of conviction and sentence
passed by the Fast Track Court. The counsel for appellants further
contended that the impugned judgments of the Courts suffer from legal
as well as factual infirmities and the findings therein are perverse and
are to be set-aside and the appellants are liable to be acquitted.
20. The details of the submissions put forth by the learned counsel
for the appellants-accused can be epitomised as under:
20.1 there was no evidence to show any alleged unlawful assembly,
rioting, murder and all the alleged offences have been falsely
fabricated by the Investigating Officer-Biseswar Singha (PW-10).
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The case of the appellants is that they were neither present nor
participated in the alleged occurrence.
20.2 the investigation by PW-10 was not done as required by law. It
was urged by the counsel for the appellants that the prosecution
stated that 100 to 150 people gathered at the place of
occurrence. However, the prosecution failed to examine any
independent and impartial witness. The witnesses examined
were under the influence of PW-10 who falsely implicated the
appellants. Further, the witnesses, PW-1 to PW-6, who were
examined by the prosecution, were related to each other. There
are material contradictions in the contents of the FIR and
depositions made by the witnesses. The charge sheet submitted
by PW-10 did not bear his signatures. The land documents of
the appellants were not verified by PW-10 as the same was
essential to do so. PW-10 has been negligent in performing his
duty and did not carry out the investigation in a proper manner.
20.3 the Courts below failed to note that dispute pertained only
regarding land and the ingredients of offence under Section 149
of the IPC were not made out and, as such, the conviction was
bad in law. Since the offence under Section 149 of the IPC was
not made out, accused Nos. 4, 10 and 11 could not have been
convicted under Section 302 of the IPC. There is no clear version
as to who gave the fatal blow to the deceased.
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20.4 the Courts below ought to have considered the cardinal principle
of the administration of criminal justice i.e., presumption of
innocence of the accused. In the present case, nothing was
proved beyond reasonable doubt and the Courts below were not
justified in depriving the accused persons of the benefit of doubt.
21. Per contra, learned counsel appearing for the respondent-State
supported the impugned judgment and order passed by the High Court
and the Fast Track Court and contended that the Courts below have
rightly perceived and assessed the evidence on record.
22. The submissions of the learned counsel for the respondent-State
can be summarised as under:
22.1 the present case is a case of clinching evidence and the
involvement of the accused in the offence has been proven
beyond reasonable doubt by the prosecution on the strength of
the depositions of injured eye-witnesses being PW-1, PW-2, PW4 and PW-5 which has been corroborated by medical evidence
duly proved on record.
22.2 both the Courts below have concurrently held that the minor
discrepancies in the deposition of PW-6 does not
demolish/destroy the consistent depositions of PW-1, PW-2, and
PW-5. The same is actually supplementary and not in derogation
of the evidence of other prosecution witnesses. The discrepancy
regarding who stabbed the deceased does not negate the value
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of the testimonies of PW-1 and PW-2 as it does not go to the root
of the matter. As long as the evidence contains a ring of truth, it
cannot be discarded on account of existence of discrepancies.
The learned counsel for respondent-State contended that this
Court has settled the principles relating to treatment of evidence
when discrepancies are alleged and relied on the judgments of
this Court in (i) Sohrab v. State of Madhya Pradesh (1972) 3
SCC 751, (ii) Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat (1983) 3 SCC 217, (iii) State of U.P. v. M.K. Anthony
(1985) 1 SCC 505, (iv) Prithu @ Prithi Chand v. State of
Himachal Pradesh (2009) 11 SCC 588 and (v) State of
Madhya Pradesh v. Chhaakki Lal (2019) 12 SCC 326.
22.3 the plea of alibi as claimed by the accused has not been
sufficiently proven by the defence. It was contended by the
learned counsel for the State that in respect of plea of alibi,
Section 11 and Section 103 of the Evidence Act, 1872 are
relevant. Further, the plea of alibi must be proved with absolute
certainty so as to completely exclude the possibility of the
presence of the person concerned at the place of occurrence.
Neither DW-1 nor DW-2 confirmed the presence of accused Md.
Sahed Ali in his house or the alleged incident of dacoity at his
alibi. The alibi is weak and does not create a contradiction to the
facts presented by the prosecution. Learned counsel for the
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respondent-State placed reliance on Dudh Nath Pandey v.
State of Uttar (1981) 2 SCC 166, Jitender Kumar v. State of
Haryana (2012) 6 SCC 204 and State of Maharashtra v.
Narsingrao Gangaram Pimple (1984) 1 SCC 446.
23. Having heard the learned counsel appearing for the respective
parties, the following points would arise for our consideration:
(a) Whether the High Court was justified in confirming the judgment
of conviction and sentence awarded to the appellants-accused by
the Fast Track Court?
(b) Whether the judgment of the High Court calls for any interference
or modification by this Court?
(c) What order?
24. Before proceeding further, it would be useful to recall the
approach to be adopted while deciding an appeal against conviction by
the Trial Court as well as by the High Court.
25. Section 374 of the CrPC deals with appeals from convictions.
Though it is a settled law that this Court shall not reassess the evidence
at large and come to fresh opinion as to the innocence or guilt of the
accused so as to interfere with the concurrent findings of the Courts
below, however this Court may interfere in certain cases. One such
case is when there has been an improper reception or rejection of
evidence, which, if discarded or received would leave the conviction
unsupportable. This Court may also interfere in a case where there has
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been a misreading of vital evidence or the Court omits to notice the
important points in favour of the accused. {See Saravanabhavan v.
State of Madras AIR 1966 SC 1273}
26. Where the finding of fact by the High Court is perverse,
inadequate and had resulted in miscarriage of justice, this Court may
itself hear the appeal on the evidence instead of remanding the case to
the High Court for a reconsideration of the evidence when the latter
course would lead to unnecessary delay or hardship. {Kashmira
Singh v. State of Madhya Pradesh AIR 1952 SC 159}
27. In order to appreciate the arguments advanced by the learned
counsel for the rival parties and to determine the correctness of the
conclusions recorded in the judgments passed by the High Court and
the Fast Track Court, it will be necessary to discuss the evidence
adduced by the witnesses examined by the prosecution as well as the
defence.
28. PW-1- Md. Samad Ali, is one of the persons allegedly injured in
the occurrence. The deceased Ekkabar Ali was his cousin (paternal
uncle’s son). According to him, at about 7:00 a.m. on the day of
occurrence, PW-6 had gone to plough his field when Md. Sahed Ali took
the other accused persons to the field of PW-6. Seeing the persons
accused go to the field of PW-6, PW-1 along with the deceased Ekkabar
Ali, PW-2 and PW-3 also came to the field. As per this witness, Md.
Sahed Ali exhorted the rest of the accused to assault the other persons
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whereupon accused Md. Ajmat Ali stuck PW-1 in the left arm with a
fishing prong whereas accused Md. Hasan Ali tried to stab him in the
abdomen with a falla, as a result of which he sustained injury in his
left hand. This witness further deposed that Md. Jabbar Ali stabbed
the deceased Ekabbar Ali in the lower abdomen with a surki (spear)
whereupon the deceased fell down. PW-1 also deposed that injuries
were caused to PW-2 and PW-4 and that injured Ekkabar Ali was taken
to the house of Barek Bepari where he died. In his cross examination,
PW-1 stated that his house is situated at a distance of half a kilometer
from the place of occurrence and that Md. Sahed Ali had forcibly taken
possession of the land on which the occurrence took place. PW-1 stated
that PW-6 is the husband of his niece. PW-1, in his cross examination,
further stated that the police did not interrogate him at the place of
occurrence. He further stated that some 15-20 people were present at
the place of occurrence and that PW-6 was ploughing Md. Sahed Ali’s
land. The quarrel took place when Md. Sahed Ali objected to the said
act of ploughing his field. PW-1 stated that he did not tell the police
about Mr. Jabbar Ali stabbing him in the arm and that Md. Ajmot Ali
did it. As per his statement in the cross-examination, he did not tell
the police that Md. Tabibor Rahman stabbed him in the right arm. PW1 stated that he did not tell the police about Md. Jabbar Ali stabbing
Ekkabar Ali since the police did not ask him. In his cross-examination,
PW-1 stated that it was only when Ekkabar Ali’s body was taken from
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the place of occurrence that he came to know about Md. Jabbar Ali
stabbing Ekkabar Ali. PW-1 further refused that he had any land near
PW-6’s land or Md. Sahed Ali’s land.
29. PW-2- Md. Baseruddin is another witness who got injured in the
course of the occurrence who has stated that deceased Ekkabar Ali was
his paternal uncle and that at about 7:00 a.m. while walking on the
road, he heard a hue and cry at the place of occurrence. When PW-2
reached the spot of occurrence, he found all the accused persons
present with lathi, falla, hanna, surki etc. and the accused persons were
quarrelling with PW-6 over ploughing the land. PW-2 deposed that he
had requested the parties not to quarrel. He deposed that at the time
of incident, Md. Sahed Ali exhorted the other accused to stab PW-2.
The deceased Ekkabar Ali was infront of him and that Md. Moyan Ali
caught hold of Ekkabar Ali while accused Md. Jabbar Ali stabbed
Ekkabar Ali in the lower abdomen with a surki. He deposed that
accused Md. Yunush Ali hit him on the upper dorsal side of his right
hand with a faska whereas accused Md. Tabibor Rahman had struck
him with a falla on the upper dorsal side of his left hand. By seeing this
he fled away from the place of occurrence. The accused Md. Ajmot Ali
and Md. Hasan Ali injured PW-1 on his hand and arm. That Ekkabar
Ali was carried to the house of Barek Bepari where he died and that he
underwent treatment for his injuries. In his cross-examination, the
place of occurrence of the incident belonged to one Rezzak Ali and that
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the patta is in his name. He stated that he had no knowledge whether
the name of accused Md. Sahed Ali was mutated in the patta or not.
He rushed to the place of occurrence after 10-15 minutes wherein 50-
60 people gathered there. PW-2 stated Ekkabar Ali sustained injury in
the right side of his lower abdomen and that he sustained only one
injury. PW-2 further stated in his cross-examination that he did not
know if the people were aware of this incident.
30. PW-3-Md. Inam Ali is the brother of deceased Ekkabar Ali who
deposed that at about 7:00 a.m. on the day of occurrence, when he had
been ploughing the field, a young boy came and informed him of the
incident. He deposed that he went to the place of occurrence and found
his elder brother Ekkabar Ali lying dead. According to him, PW-4
informed him that Md. Moyan Ali had killed Ekkabar Ali and further
that PW-4 and PW-1 were injured by Md. Ajmot Ali. Immediately, on
his arrival at the place of occurrence, the accused persons ran away
from there. In his cross-examination, PW-3 stated that the land on
which occurrence took place is an annual patta land and that he did
not know the dag and patta numbers of the land. He refused that he
knew the boundaries of the land. He stated that he had also seen some
Moslem ploughing the field on which incident took place and that he
had been ploughing his land which some 2-3 bighas away from the
place of occurrence. On his arrival on the place of occurrence, he did
not notice who were present there and that the accused persons ran
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away. The accused persons have separate homesteads. PW-3, in his
cross-examination further stated he told the police that PW-4 told him
that Md. Moyan Ali assaulted Ekkabar Ali. The two parties fought over
possession of land and that on the day of occurrence itself, Md. Sahed
Ali filed a case against them (Jonab, Raju Mallik and Baser) alleging
looting of his house
31. PW-4-Md. Jonab Ali is another brother of the deceased. He
deposed that at about 7:00 a.m. on the day of occurrence, he was
ploughing his land which is at a short distance from the place of
occurrence. Seeing 100-150 people gathered at the place of occurrence,
he went to the place of occurrence. Md. Ajmot Ali tried to hit him with
a faska, as a result of which, he fell on the ground and on standing up
he saw 4-5 men carrying Ekkabar Ali. He also saw injury on the
abdomen of Ekkabar Ali who, according to him, was assaulted by Md.
Hasan Ali. In his cross-examination, he stated that deceased Ekkabar
Ali and PW-6 had a quarrel over possession of the land. He did not see
injury on anyone at the place of occurrence except for on Ekkabar Ali.
As per this witness, PW-2 came to the place of occurrence afterwards.
He did not know the name of the persons who told him that Md. Hasan
Ali had assaulted Ekkabar Ali and that he did not tell that to the police.
In his cross-examination, PW-4 makes a mention of some other quarrel
that took place between the two groups at some place 10-15 bighas
away from Md. Sabed Ali’s house. He also made a mention of the case
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filed against them alleging dacoity being committed by them in Md.
Sabed Ali’s house. In his cross-examination, PW-4 stated that he
cannot say if the accused persons were present at the place of
occurrence. PW-1 and PW-3 are his brothers and PW-6 is the husband
of his niece.
32. PW-5- Md. Hakim Khan, who is the brother-in-law of deceased
Ekkabar Ali, in his deposition stated that at about 8:00 a.m. on the day
of occurrence, he was going home on a bicycle after purchasing some
fertilizer. As per this witness, Md. Sahed Ali, Md. Tabibur Rahman, Md.
Sabed Ali, Mustt. Chanderbhanu, Mustt. Hazarabhanu and Md. Yunus
Ali came together towards him and said ‘Ekkabar Ali’ is finished. Catch
this one’. According to him, Md. Sahed Ali hit him on his right shoulder
with a lathi, as a result of which, he fell down and became unconscious
and was taken to the hospital by his eldest son Anowar Khan, son-inlaw and his wife. PW-5 stated that Ekkabar Ali sustained injuries in
his right kidney. In his cross-examination, this witness stated that he
was attacked and injured near the house of one Jittu Ali at Keotpara.
The incidents of assault took place at two places. the distance between
the places where he was attacked and Ekkabar Ali was killed is one
furlong. This witness stated that he did not know what the rest of the
accused persons had done other than running towards him and
attacking him. The cause of quarrel was unknown to him. In his cross-
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examination, this witness stated that he did not tell the police about
the accused persons assaulting Ekkabar Ali.
33. PW-6- Baju Mollik, the first informant, deposed that on the
morning of the day of occurrence, at about 7:00 a.m. when he was
ploughing his land, the accused, namely, Md. Sahed Ali, Md. Sabed Ali,
Mustt. Hazerabhanu and Mustt. Chandrabhanu came to the land and
asked him not to plough the same. An argument took place over the
said issue. As per this witness, at that time, deceased Ekkabar Ali was
going along the road to his place of work. PW-6 called Ekkabar Ali to
his land and the latter asked the accused persons not to quarrel with
PW-6. PW-6 deposed that at that time, Md. Sahed Ali ordered that
Ekkabar Ali should be assaulted and therefore Md. Sabed Ali, Mustt.
Hazerabhanu and Mustt. Chandrabhanu held Ekkabar Ali tightly while
Md. Sahed Ali stabbed him in the abdomen with a falla. As per his
deposition, there was an attempt to assault him also but he ran away.
While running away, he met PW-4 and informed him of the incident.
PW-6 also informed the villagers regarding the said incident and on
returning to the place of occurrence, he found Ekkabar Ali lying in the
field in an injured state. In his cross-examination, he stated that he
was ploughing was his own land however he did not know the dag and
patta of his own land. He stated that he had seen only accused Md.
Sahed Ali, Md. Sabed Ali, Mustt. Hazerabhanu and Mustt.
Chandrabhanu and none others at the place of occurrence and he
23
informed the same to PW-4 when he was running away. After 10-15
minutes, he returned to the place of occurrence and saw only aforesaid
4 accused persons and no other person. He stated that there was only
Ekkabar Ali and him on the place of occurrence. He also deposed in his
cross examination that he did not know if any other man sustained
injuries. He stated that Md. Sayed Ali had asked him not to plough the
field. The said land was given to him by his maternal uncle Md. Rezzak
Ali however he has not obtained mutation in that respect. This witness
stated he did not tell the police about accused Md. Sayed Ali stabbing
PW-1 with a falla. According to him, PW-1 held it with his hand and as
a result of that, he sustained injury in the hand. He also stated that he
did not tell the police that Md. Yunus Ali had injured PW-2 and that
Md. Hasan Ali injured Ekkabar Ali. He did not know of any incident
happening near Md. Sayed Ali’s house. He denied that the land where
the incident took place belonged to Md. Sahed Ali. He even stated in
his cross-examination that he cannot say as to who assaulted whom.
This witness also deposed in his cross-examination that the deceased
Ekkabar Ali was his maternal uncle-in-law.
34. PW-7- Dr. D.C. Sarma who was working in Barpeta Civil Hospital,
deposed that on 19.11.1999, he examined PW-1, PW-4 and PW-5. The
report was prepared and signed by PW-7 and was exhibited by the
prosecution as Ext.2,4, and 3 respectively. The injuries as mentioned
24
in the injury reports were simple and were found to be caused by a
blunt weapon.
35. PW-8- Dr. P.N. Uzir conducted post-mortem examination on the
dead body of Ekkabar Ali. The post-mortem report Ext.5 indicated that
one stab injury was found on the left side of the lower abdomen and
that the rupture of the peritoneum was found along with perforation of
the large intestine. As per the opinion of the doctor, the cause of death
was shock and haemorrhage due to the injury sustained. Only one
injury was found on the body of the deceased. In his report, he stated
that the injury might have been caused by a sharp weapon.
36. PW-9-Dr. S.C. Sarma had examined PW-2 at Barpeta Civil
Hospital on 19.11.1999 and in his report, Ext.6, it was mentioned that
he found two small punctured injuries at the dorsal of the right hand.
The injuries were simple and caused by pointed weapon.
37. PW-10-Biseswar Singha is the Investigating Officer in the instant
case who deposed that PW-6 lodged a written Ejahar. He stated that he
registered the complaint, interrogated the complainant, visited the
place of occurrence, questioned the witnesses and drew a sketch/mapExt.7 of the place of occurrence along with his signature- Ext.7(i). He
deposed that he seized a 10 feet 7 inches bamboo pole fitted with 9
inches long pointed iron prong, 9 inches long iron falla fitted to a 2 feet
11 inches long bamboo pole and an 11 feet 2.5 inches long bamboo
pole fitted with 14-inch-long pointed iron falla vide seizure list- Ext.9
25
along with his signature- Ext.9(i). Ext.10 (1) is the signature of
Inspector Tanu Hazarika. As per this witness, he sent the body of the
deceased Ekkabar Ali to the Barpeta Civil Hospital for autopsy and on
completion of the investigation, he submitted a chargesheet against the
accused. In his cross-examination, he stated that the incident took
place on Muslimuddin’s land and that he did not verify the land
documents of PW-6 i.e., the first informant and of the accused persons.
In the diary, there is no mention that the accused Sayed Ali’s house
was ransacked. The chargesheet did not bear his signature. In his
cross-examination, PW-10 stated that he did not see the articles seized
by him in the court on the day of his deposition. He further stated that
he did not examine Anowar Khan as a witness. PW-10 stated that PW6 and PW-4 told him about the incident.
38. The accused examined two witnesses. DW-1- Phul Khatun in his
examination-in-chief, deposed that a quarrel took place in the house of
Md. Sahed Ali, over some land, about 4-5 years ago. DW-1 however
stated that she could not say whether at the time of occurrence, Md.
Sahed Ali was present or not. DW-1 stated that she had not seen the
occurrence of the incident. In her cross-examination, DW-1 deposed
that she was not present at the time of the occurrence.
39. DW-2- Md. Abu Ahmed, in his witness, deposed that on coming
to know of the arrival of the police at the place of occurrence, he had
gone there and found the dead body of Ekkabar Ali lying in the
26
courtyard of the house of Barek Bepari. In his cross-examination, this
witness stated that he was not present at the time when deceased
Ekkabar Ali was killed.
40. On reappreciation of evidence of the prosecution witnesses, it is
noted that PW-1 who is one of the injured witnesses has stated that on
the fateful day, it was Md. Sahed Ali who exhorted the other accused
to assault and as a result of the said exhortation Md. Jabbar Ali
stabbed Ekkabar Ali in the in the lower abdomen with surki (spear)
whereupon the deceased fell down. PW-2 has also stated that Md.
Moyan Ali caught hold of Ekkabar Ali while accused Md. Jabbar Ali
stabbed Ekkabar Ali in the lower abdomen with a surki. That Md.
Yunsh Ali hit him on the upper dorsal side of his right hand with a falla
and Md. Tabibur Rahman had struck him with a falla on the upper
dorsal side of his left hand. As a result, he fled from the place of
occurrence. PW-3-Md. Inam Ali is not eye witness but on information
has deposed that he went to the place of occurrence of the incident and
found Ekkabar Ali lying dead. According to this witness who is a
hearsay witness, PW-4 informed him that Md. Moyan Ali had killed
Ekkabar Ali. PW-4 further stated in his evidence that he saw the
injuries on the abdomen of Ekkabar Ali who, according to him, was
assaulted by Md. Hasan Ali. But he has not stated that he had seen
Md. Hasan Ali assaulting Ekkabar Ali. Also, PW-5-Md. Hakim Khan
has deposed that Md. Sahed Ali hit him on his right shoulder with a
27
lathi and as a result he fell down and became unconscious and was
taken to the hospital. He has also not stated as to who assaulted
Ekkabar Ali. Similarly, PW-6-Baju Mollik, the first informant has
stated that on the exhortation of Md. Sahed Ali, Md. Sabed Ali, Mustt.
Hazerabhanu and Mustt. Chandrabhanu held Ekkabar Ali tightly while
Md. Sahed Ali stabbed him in the abdomen with a falla and as there
was an attempt to assault him also, he ran away. While running away,
he met PW-4 and informed him of the incident. Thus, PW-4 is also not
an eye witness of the incident as they were not present at the time when
Ekkabar Ali was assaulted.
41. On an analysis of the evidence produced by both the parties, what
emerges is that there are variations in the evidence of PW-6 who was
the first informant in the instant case and the evidence of PW-1, PW-2
and PW-4 regarding as to who gave the fatal blows to deceased Ekkabar
Ali. As per the deposition of PW-6, accused Md. Sahed Ali stabbed the
deceased Ekkabar Ali in the abdomen with a falla while as per the
deposition of PW-1 and PW-2, accused Md. Jabbar Ali stabbed Ekkabar
Ali in the lower abdomen with a surki, whereafter he fell on the ground
and was later taken to house of Barek Bepari where he succumbed to
his injuries. But, PW-1 has admitted in his cross examination that he
had not told the police about Md. Jabbar Ali stabbing Ekkabar Ali and
when the latter’s body was being taken from the place of the
occurrence, he came to know that Md. Jabbar Ali had stabbed Ekkabar
28
Ali. PW-4 deposed that Md. Moyan Ali had killed Ekkabar Ali. From the
evidence of the witnesses, what emerges is that there is no consistency
in the depositions of the aforesaid witnesses as to who amongst the
accused persons gave a fatal blow to the deceased Ekkabar Ali. When
it is not clear as to who stabbed the deceased Ekkabar Ali, the finding
of the Fast Track Court, that the evidence of PW-6 finds corroboration
with the evidence of PW-1 and PW-2 is erroneous and cannot be
sustained. The Fast Track Court as well as the High Court ought not
to have relied on the evidence of these witnesses which are highly
inconsistent with each other in holding the concerned accused guilty.
42. The evidence of PW-3, who was the brother of the deceased, also
does not support the case of the prosecution since PW-3 was not an
eye-witness but was merely a hearsay witness who, in his deposition,
categorically stated that while he was ploughing his field, a young boy
came and informed him about the incident. After hearing about the
incident, this witness rushed to the place of occurrence and saw the
dead body of the deceased Ekkabar Ali. Further, in his deposition, PW3 also stated that he was informed by PW-4 that accused Md. Moyan
Ali stabbed the deceased Ekkabar Ali and that PW-1 and PW-4 were
further injured by the accused Md. Ajmot Ali. On examining the
deposition of this witness PW-3, it is clear that the same is not
corroborated by the evidence of any other witness such as PW-1 and
PW-2 who stated that accused Md. Jabbar Ali stabbed the deceased
29
Ekkabar Ali and PW-6 who stated that accused Md. Sahed Ali stabbed
the deceased Ekkabar Ali. The finding of the Fast Track Court that the
evidence of PW-3 lends support to the correctness of the prosecution
case is therefore incorrect. Thus, the evidence of PW-3 in no way lends
succor to the case of the prosecution.
43. Moving on to the evidence of PW-4, who is also alleged to be
injured in the said incident was also not an eye-witness to the
occurrence. As per his own deposition, he went to the place of
occurrence after he saw many people gathered there. According to this
witness, accused Md. Hasan Ali assaulted the deceased Ekkabar Ali,
however, during his cross-examination, he clearly stated that he did
not know as to who told him that accused Md. Hasan Ali stabbed the
deceased Ekkabar Ali.
44. Further, PW-5 was also not an eye-witness to the incident of
deceased Ekkabar Ali being killed by the accused persons. According
to this witness, the accused persons Md. Sahed Ali, Md. Sabed Ali,
Mustt. Chandabhanu, Mustt. Hazerabhanu and Md. Yunush Ali came
towards him and told that they had killed the deceased Ekkabar Ali.
However, this witness has failed to state which one of the accused
persons actually stabbed the deceased Ekkabar Ali. The evidence of
PW-5 thus, does not lend any credence to the case of the prosecution.
45. On scrutinizing the evidence of PW-10 i.e., the Investigating
Officer, it is clear that PW-10 did not verify the land documents/land
30
records of PW-6 as well as of the persons accused. The Fast Track
Court has held that on the relevant day i.e., on the day of the incident,
PW-6 was cultivating the land however the accused Md. Sahed Ali also
claimed to be owner of the land. Also, witness PW-10 did not collect the
blood stains from the place of occurrence.
46. Hence, we find there is no clinching evidence so as to prove
beyond reasonable doubt the case of the prosecution as there are
contradictions in the evidence/depositions of PW-1, PW-2 and PW-5.
Moreover, the evidence of PW-6, the informant is inconsistent with the
depositions of PW-1, PW-2 and PW-5. We find that the inherent
contradictions in the evidence of the prosecution-witnesses does not
prove the case of the prosecution beyond reasonable doubt. Therefore,
the evidence of the defence witnesses in relation to the alibi of Md.
Sahed Ali need not be considered as such.
47. It is pertinent to mention here that the finding of the High Court
as well as of the Fast Track Court is erroneous since no document was
brought on record to prove the possession or the ownership of the said
disputed land. The Fast Track Court arrived at a conclusion that the
disputed land where the occurrence took place was in possession of
the complainant’s party on mere conjectures. Hence, we express no
opinion on that aspect of the case.
48. It is noted that great weight has been attached to the testimonies
of the witnesses in the instant case. Having regard to the aforesaid fact
31
that this Court has examined the credibility of the witnesses to rule out
any tainted evidence given in the court of Law. It was contended by
learned counsel for the appellant that the prosecution failed to examine
any independent witnesses in the present case and that the witnesses
were related to each other. This Court in a number of cases has had
the opportunity to consider the said aspect of
related/interested/partisan witnesses and the credibility of such
witnesses. This Court is conscious of the well-settled principle that just
because the witnesses are related/interested/partisan witnesses, their
testimonies cannot be disregarded, however, it is also true that when
the witnesses are related/interested, their testimonies have to be
scrutinized with greater care and circumspection. In the case of
Gangadhar Behera and Ors. v. State of Orissa (2002) 8 SCC 381,
this Court held that the testimony of such related witnesses should be
analysed with caution for its credibility.
49. In Raju alias Balachandran and Ors. v. State of Tamil Nadu
(2012) 12 SCC 701, this Court observed:
“29. The sum and substance is that the evidence of
a related or interested witness should be
meticulously and carefully examined. In a case
where the related and interested witness may have
some enmity with the assailant, the bar would need
to be raised and the evidence of the witness would
have to be examined by applying a standard of
discerning scrutiny. However, this is only a rule of
prudence and not one of law, as held in Dalip
Singh [AIR 1953 SC 364] and pithily reiterated
in Sarwan Singh [(1976) 4 SCC 369] in the
32
following words: (Sarwan Singh case [(1976) 4
SCC 369, p. 376, para 10)
“10. … The evidence of an interested
witness does not suffer from any infirmity
as such, but the courts require as a rule of
prudence, not as a rule of law, that the
evidence of such witnesses should be
scrutinised with a little care. Once that
approach is made and the court is satisfied
that the evidence of interested witnesses
have a ring of truth such evidence could be
relied upon even without corroboration.”
50. Further delving on the same issue, it is noted that in the case of
Ganapathi and Anr. v. State of Tamil Nadu (2018) 5 SCC 549, this
Court held that in several cases when only family members are present
at the time of the incident and the case of the prosecution is based only
on their evidence, Courts have to be cautious and meticulously
evaluate the evidence in the process of trial.
51. It is thus settled that the evidence of the related witnesses have
to be considered by applying discerning scrutiny. In the instant case,
it is seen from the testimonies of the prosecution witnesses that all the
witnesses are related to the deceased Ekkabar Ali and therefore all the
witnesses being related to each other. In order to elucidate on the said
aspect, it is pertinent to note the relationship of the witnesses and to
the deceased Ekkabar Ali. PW-1 in his deposition stated that the
deceased Ekkabar Ali was his cousin (paternal uncle’s son) and PW-6
is the husband of his niece. PW-2 stated that the deceased Ekkabar Ali
was his paternal uncle. PW-3 and PW-4 deposed that they were
33
brothers of the deceased. PW-5 was the brother-in-law of the deceased
and PW-6 stated that the deceased was his maternal uncle in law. It is
necessary to state here that the evidence of the related witnesses can
be rejected if there are material contradictions and inconsistencies
found in their testimonies. It is observed that there have been material
improvements in the testimony of PW-1. PW1- in his examination
deposed that accused Md. Jabbar Ali stabbed Ekkabar Ali however in
his cross-examination, PW-1 stated that he had not told the police that
Md. Jabbar Ali stabbed Ekkabar Ali. The same is an improvement in
the testimony which has to be borne in mind.
52. Further as already stated above, all the witnesses have given
contradictory versions as to who gave the fatal blow to deceased
Ekkabar Ali and the same amounts to material contradictions. It is
reiterated that the testimony of PW-6 is inconsistent with the
testimonies of PW-1, PW-2 and PW-5 This Court in the case of State
of Rajasthan v. Kalki & Anr. (1981) 2 SCC 752, distinguished
between the normal discrepancies and material discrepancies. This
Court held that the Courts have to label as to which category a
discrepancy can be categorized. The material discrepancies corrode the
credibility of the prosecution’s case while insignificant discrepancies
do not do so.
53. Keeping in view the aforesaid principle, this Court would hold
that in the present case, there are material discrepancies in the
34
testimonies of the witnesses and the same is fatal to the case of the
prosecution. The prosecution has thus failed to prove the guilt of the
accused-appellants beyond reasonable doubt.
54. In the present case, owing to the substantial and material
contradictions in the testimonies of the prosecution witnesses, the
evidence of the prosecution is considered wholly unreliable.
Additionally, the prosecution has examined only related witnesses and
not a single independent witness. Therefore, in the facts and
circumstances of the case, the evidence does not prove the alleged
offences against the accused-appellants.
55. Another aspect that this Court would like to look into is as to
what extent this Court can reappreciate and reappraise the evidence
on record. In a catena of cases, it has been held that though in cases
of concurrent findings of fact, this Court will ordinarily not interfere
with the said findings, this Court is empowered to do so if in case it
finds inter alia, misreading of the evidence or where the conclusions of
the High Court are manifestly perverse.
56. Reliance in this regard is placed on the recent judgment of this
Court in Ashoksinh Jayendrasinh v. State of Gujarat (2019) 6 SCC
535, wherein it has categorically held that when the High Court has
failed to appreciate the oral evidence, it would definitely be entitled to
appreciate the evidence in its correct perspective. In the present case
at hand as well, the finding of conviction was recorded overlooking the
35
material contradictions in the evidence of the prosecution witnesses
and therefore the said conviction deserves to be set-aside. The relevant
portion from the aforesaid judgment is quoted as:
“We are conscious that the Supreme Court would
be slow to interfere with the concurrent findings of
the courts below. In an appeal under Article 136 of
the Constitution of India, concurrent findings of fact
cannot be interfered with unless shown to be
perverse (vide Mahesh Dattatray
Thirthkar v. State of Maharashtra (2009) 11
SCC 141: (2009) 4 SCC (Civ) 468]). Where the
appreciation of evidence is erroneous, the Supreme
Court would certainly appreciate the evidence. In
our considered view, the High Court ought to have
weighed and considered the materials. When the
findings of the trial court and the High Court are
shown to be perverse and there is no proper
appreciation of evidence qua the appellant, the
Supreme Court would certainly interfere with the
findings of fact recorded by the High Court and the
trial court.”
57. It is further noted that the injuries caused to PW-1, PW-2, PW-4
and PW-5 are simple in nature as per the medical reports submitted
by PW-7 and PW-9. The witnesses PW-7 and PW-9 have categorically
stated in their reports that the injuries were caused by a blunt weapon
and therefore the High Court and the Fast Track Court has grossly
erred in convicting and sentencing the accused Nos. 1, 2, 3, 5, 6, 7 and
8 for simple imprisonment for one year.
58. In our view, the High Court as well as the Trial Court have failed
to take into consideration, the vital discrepancies and inconsistencies
36
in the evidence of the prosecution witnesses and therefore the High
Court was not justified in reaffirming the judgment and order of
conviction passed by the Fast Track Court.
59. Having re-appreciated the evidence of the witnesses, we find that
the High Court was not justified in affirming the judgment of conviction
and sentence passed by the Fast Track Court, of the first three
appellants herein, namely, Md. Jabbar Ali (accused no.4), Md. Moyan
Ali (accused no.10) and Md. Sahed Ali (accused no.11) to undergo life
imprisonment and of the other appellants namely Md. Omar Ali
(accused no.3), Md. Hasan Ali (accused no.2), Mustt. Hazerabhanu
(accused no.6), Mustt. Chandrabhanu (accused no.7), Md. Tabibor
Rahman (accused no.5) and Md. Ajmot Ali (accused no.8- appellant in
the connected matter) to undergo simple imprisonment for one year.
60. In view of the aforesaid discussion, we find that the Session Court
as well as the High Court were not right in convicting and sentencing
the appellants herein and therefore, the impugned judgments are liable
to be set aside.
61. In the result, the appeals filed by the appellants-accused are
allowed and the impugned judgments passed by the High Court
affirming the conviction and sentence by the Fast Track Court are
hereby quashed and set aside. The appellants are acquitted of all the
charges levelled against them in the instant case.
37
62. Pending application(s), if any, shall stand disposed of in the above
terms.
.………….……………J.
(AJAY RASTOGI)
.………….……………J.
(B.V. NAGARATHNA)
NEW DELHI;
17th October, 2022.

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