Karnataka High Court
Siddabasappa H M vs Shankarappa on 15 September, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL No.115/2014
BETWEEN:
SIDDABASAPPA H. M.,
S/O MARIYAPPA,
AGED ABOUT 43 YEARS
HARALALLI VILLAGE
JAVAGAL HOBLI,
ARASIKERE TALUK,
HASSAN DISTRICT-573 221.
...APPELLANT
(BY SRI N. S. SAMPANGIRAMAIAH, AMICUS CURIAE, VIDE
ORDER DATED 7.9.2020;
SRI NAGARAJ M. BHAT, ADVOCATE FOR
SRI R.B. DESHPANDE, ADVOCATE FOR R1 TO R4)
AND:
1. SHANKARAPPA
S/O SIDDAPPA
AGED ABOUT 48 YEARS
AGRICULTURIST
HARALALLI VILLAGE
JAVAGAL HOBLI
ARASIKERE TALUK
HASSAN DISTRICT 573 221
2. MURTHY
S/O SIDDAPPA
AGED ABOUT 43 YEARS
2
HARALALLI VILLAGE
JAVAGAL HOBLI
ARASIKERE TALUK
HASSAN DISTRICT 573 221.
3. MALLIKAPPA
S/O HALAGAPPA
AGED ABOUT 53 YEARS
HARALALLI VILLAGE
JAVAGAL HOBLI
ARASIKERE TALUK,
HASSAN DISTRICT 573 221.
4. SUMITHRA,
W/O MALLIKAPPA,
AGED ABOUT 43 YEARS
HARALALLI VILLAGE
JAVAGAL HOBLI
ARASIKERE TALUK,
HASSAN DISTRICT-573 221.
5. STATE BY BANAVARA POLICE
HASSAN DISTRICT
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT BUILDING.
BANGALORE-01.
...RESPONDENTS
(BY SRI R. B. DESHPANDE, ADVOCATE FOR R1 TO R4;
SRI S. RACHAIAH, HIGH COURT GOVERNMENT PLEADER FOR
R5)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO
SET ASIDE THE JUDGMENT DATED 17.6.13 PASSED BY THE
PRINCIPAL SESSIONS JUDGE, HASSAN IN S.C. No.90/2010-
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 307, 324, 114 READ WITH 34 OF
IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
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JUDGMENT
The injured/complainant filed the present Criminal Appeal against the judgment and Order of acquittal dated 17th June 2013 made in S.C.No.90/2010 on the file of the Principal Sessions Judge, Hassan, acquitting the accused Nos.1 to 4 for the offences punishable under Sections 307, 324, 114 r/w 34 of the Indian Penal Code.
2. It is the case of the injured/complainant-appellant that, on 15.12.2009, at 4.00 pm, at Haralahalli village within the jurisdiction of Banavara Police Station, alleging that the complainant has taken away certain coconut branches and that he has allowed the cattle to graze in the lands of accused, and accused No.4 abused the complainant. When the complainant questioned the same, suddenly, accused No.4 assaulted the complainant with a stone over his head, accused No.1 assaulted with chopper and accused No.2 assaulted 4 with a club and caused injuries knowingfully well that such injuries would cause death of the complainant. Based on the complaint made by complainant, the jurisdictional police registered a case in Crime No.238/2009 against accused Nos.1 to 4 for the offences punishable under Sections 504, 324, 307, 114 r/w 34 of the Indian Penal Code. After investigation, the jurisdictional police filed charge sheet against the accused persons. Thereafter, the case was committed the Court of Sessions.
3. The learned Sessions Judge, framed the charge against accused persons on 13.10.2011 for the offences punishable under Sections 307, 324, 114 r/w Section 34 of the Indian Penal Code, read over the same to the accused persons, who pleaded not guilty and claimed to be tried.
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4. In order to prove the its case, the prosecution examined P.Ws.1 to 14, marked the documents Exs.P.1 to P.16, material objects M.Os.1 to 6.
5. After completion of the evidence of the prosecution witnesses, the learned Sessions Judge recorded the statement of the accused persons under Section 313 of the Code of Criminal Procedure. The accused persons denied all the incriminating evidence adduced by the prosecution witnesses and not taken any defence, denied the accusation in toto, not examined any witnesses except marking FIR No.241/2009 for the offences punishable under Sections 504, 323, 324 r/w 34 of the Indian Penal Code marked as Ex.D.1.
6. The learned Sessions Judge, formulated three points for determination and considering the entire oral and documentary evidence on record, recorded a finding that the prosecution failed to prove beyond all reasonable doubt that on 15.12.2009 at about 4.00 pm, 6 at Haralahalli, the accused in furtherance of their common intention, took up quarrel with the complainant, accused No.4 with intention to do away with the life of the complainant, assaulted C.W.1 with a stone on his head, accused No.1 assaulted with a chopper, accused No.2 assaulted with a club and caused grievous injuries knowingfully well that such injuries would cause death of C.W.1 and thereby committed an offence punishable under Section 307 r/w 34 of the Indian Penal Code; further, the prosecution failed to prove beyond all reasonable doubt that on the above said date, in furtherance of common intention accused No.2 assaulted C.W.2 with a club, when she was pacifying the quarrel, accused No.1 assaulted C.W.2 with a club voluntarily caused hurt to C.W.2 and thereby committed an offence punishable under Section 324 r/w 34 of the Indian Penal Code; further, the prosecution failed to prove beyond reasonable doubt that on the above said date, the 7 accused No.3 being present at the spot, abetted accused Nos.1, 2 and 4 to assault C.W.1 and C.W.2 and as a consequence, the accused Nos.1, 2 and 4 assaulted C.Ws.1 and 2 and caused grievous injuries to them and thereby committed an offence punishable under Section 114 of the Indian Penal Code.
7. Accordingly, the learned Sessions Judge, by the impugned judgment and order of acquittal dated 17.06.2013, acquitted accused Nos.1 to 4 for the offences punishable under Sections 307, 324, 114 r/w 34 of the Indian Penal Code. Hence, the present Criminal Appeal is filed by the complainant.
8. Since Sri Girish B.Baladare, learned counsel submitted that he has returned the entire file to the appellant-complainant, on the last date, Sri N.S.Sampangiramaiah, was appointed as Amicus Curiae to assist the Court.
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9. We have heard Sri N.S.Sampangiramaiah, learned Amicus Curiae on behalf of the complainant/appellant, Sri Nagaraj M.Bhat for Sri R.B.Deshpande, learned counsel for accused/ respondent Nos.1 to 4 and Sri S. Rachaiah, learned High Court Government Pleader for State/respondent No.5.
10. Sri N.S.Sampangiramaiah, learned Amicus Curiae for the complainant-appellant contended with vehemence that P.Ws.1 and 2 who are the victims at the hands of the accused persons have specifically stated on oath that, accused No.4 assaulted them with stone, accused No.1 assaulted with chopper, accused No.2 assaulted with club and accused No.3 abetted for the commission of the offence. P.W.4 who supported the case of the prosecution has reiterated averments made by P.Ws.1 and 2 in the examination-in-chief. P.W.12- Dr. Vijaykumar who issued wound certificates-Exs.P.10 and 11 stated that injuries are simple in nature. 9 P.W.13- Dr.K.P.Hebbar, who issued Ex.P.13 specifically stated that the injuries are grievous in nature. Though the accused persons also filed counter case in Crime No.241/2009 against the complainant for the offences punishable under Sections 504, 323, 324 r/w 34 of Indian Penal Code, the said case has ended in acquittal, as submitted by the learned counsel for the accused persons. The investigating officer recovered M.O.s 1 to 6 under Ex.P.2-mahazar. The same was spoken to by P.W.4-Siddappa, who supported the case of the prosecution. Therefore, the learned counsel for the accused-appellant submits that the impugned judgment and order of acquittal is liable to be set-aside and the accused persons are liable to be convicted and sentenced for the charge framed against them.
11. Sri Nagaraj M.Bhat, learned counsel for Sri R.B. Deshpande, learned counsel for respondent Nos.1 to 4/ accused Nos.1 to 4, while justifying the impugned 10 judgment and order of acquittal contended that, except the evidence of P.Ws.1 and 2, the evidence of all other prosecution witnesses is inconsistent and the prosecution has not proved any charges for conviction of accused persons. He further contended that P.Ws.1 and 2/alleged victims are highly interested witnesses. Therefore, their evidence cannot be considered. P.W.12- Dr.Vijaykumar, who issued wound certificates-Exs.P.10 and 11 has stated that the injuries are simple in nature. Though P.W.13-Dr.K.P.Hebbar who issued Ex.P.13- wound certificate has stated that the injuries are grievous in nature, the fact remains that the prosecution has not produced any x-ray to justify the same. Therefore, he sought to dismiss the Appeal.
12. Sri S.Rachaiah, learned High Court Government Pleader for respondent No.5/State, reiterating the arguments advanced by learned Amicus Curiae, contended that there is material on record to establish 11 the commission of the offence by the accused persons. He contended that the accused persons had also filed complaint before the police in Crime No.241/2009 as per Ex.D.1 against P.Ws.1 and 2, which clearly indicates that the alleged incident has occurred and the same cannot be disputed. Therefore, the accused persons are liable to be convicted for the offences alleged in the charge and hence, sought to allow the appeal.
13. In view of the rival contentions urged by the learned counsel for the parties, the only point that arise for our consideration in the present Appeal is:
"Whether the appellant-complainant has made out a case to interfere with the impugned judgment and order of acquittal passed by the learned Sessions Judge acquitting the accused persons for the offences punishable under Sections, 307, 324, 114 r/w 34 of the Indian Penal Code, in 12 the facts and circumstances of the present case?"
14. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material, including the original records, carefully.
15. In order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses. P.W.1-injured complainant who filed the complaint as per Ex.P.1 has stated that he was working as bill collector since 15 years. On 15.12.2009, after finishing his work, when he returned to village at 4.00 pm, the accused No.3-Mallikappa and his wife Sumithra-accused No.4 who were working in the field picked up quarrel with him alleging that he has stolen the coconut shell from their field and has allowed the cattle to graze in their filed. All of a sudden, accused No.1 assaulted on his forehead with stone. Accused 13 No.3-Mallikappa kicked him, accused No.1- Shankarappa brought a chopper and assaulted on his chest and caused injury. Accused No.2-Murthy assaulted him with a club over his left shoulder and caused grievous injuries. In the cross-examination, P.W.1 denied all the suggestions made by the defence and reiterated the averments made in the complaint.
16. P.W.2-Mamatha who is the sister-in-law of P.W.1 who is also an injured eye witness, reiterated the averments made by the P.W.1 in his examination-in- chief. P.W.3-Rangaswamy, an eye witness and signatory to Ex.P.2-spot and seizure mahazar, partly supported the case of the prosecution. P.W.4-Siddappa, panch witness to Ex.P.2 and also an eye witness for recovery of M.Os.1 to 6 supported the prosecution case. P.W.5-Byrappa, elder brother of P.W.1, an eye witness to the incident supported the prosecution case. P.Ws.6, 7 and 8, eye witnesses to the incident turned hostile. 14 P.W.9-Nanjundegowda, P.S.I, received the information as per Ex.P.7 from the Hospital and registered Crime No.238/2009 on the complaint made by P.W.1 and sent the FIR to the Court and referred the matter for further investigation to P.W.11. P.W.10 is the police constable who carried the FIR to the Court. P.W.11 is the PSI who conducted the investigation and filed charge sheet. P.W.12-Dr.Vijaykumar treated P.Ws. 1 and 2 on 15.12.2009 and issued wound certificates as per Exs.P.10 and 11 and opined that the injuries are simple in nature. P.W.13-Dr.K.P.Hebbar, Orthopedic surgeon examined P.W.1 and issued wound certificate Ex.P.13 stating the fracture of scaphoid left wrist and opined that the injuries are grievous in nature. P.W.14- Assistant Director of Forensic Science Laboratory, Bengaluru, issued report as per Ex.P.12.
17. Based on the aforesaid material evidence, the learned Sessions Judge recorded a finding that, P.W.11- 15 claims that he received the case file on 16.12.2009 from Nanjundegowda, PSI, Banavara, for further investigation and on the same day, he visited the scene of offence at 9.00 am, conducted the mahazar in the place shown by Rangaswamy-an eye witness. But Rangaswamy who has been examined in the case has not supported the case of the prosecution. However, Ex.P.3-mahazar discloses that, it was written in the property of C.W.1 and at the time of mahazar, a chopper, a stone and clothes were seized. Apart from that, the bloodstained banian and lungi that was produced by Rangaswamy were also seized. He also speaks about the procedure adopted by him while seizing those clothes and claims to have prepared the sketch of scene of offence as per Ex.P.8, which discloses that it is written at the scene of offence and under the said mahazar a chopper and club have been seized. But it is not clear from the evidence of the Investigating Officer regarding the efforts made by him to preserve the scene of offence when serious case 16 has been investigated by him. It appears that the Investigating Officer has approached in a casual manner and investigated the case. Being an Investigating Officer in the rank of CPI, he should have posted a guard to preserve the scene of offence. So this is the lapse on the part of the Investigating Officer and the benefit of the same will go to the accused. Except P.Ws.1 and 2, all the other witnesses examined by the prosecution have not supported the case of the prosecution. Even though he claims to have recorded the statements of witnesses, in his evidence given on oath, denied of having given statement before the police. As such, the evidence of the Investigating Officer is helpful only to the prosecution to prove that he had investigated the case after taking investigation file from the Police Sub Inspector-Nanjundegowda. Even this witness also not made any efforts to get clarification from the Doctor who is alleged to have examined the injured about the necessity to examine the injured 17 twice. The evidence of the doctors who examined the injured on the same day, is quite inconsistent and there is no corroboration from medical evidence to that of oral evidence adduced by the prosecution witnesses. Since the Investigating Officer has not made any effort to get clarification, it creates a lot of doubt in the mind of the Court whether the incident as narrated in the complaint took place or not. Therefore, the learned Sessions Judge opined that the prosecution failed to prove the guilt of the accused persons beyond all reasonable doubt and accordingly, acquitted the accused persons.
18. After reconsidering the entire material on record, it is relevant to consider the evidence of P.Ws.1 and 2 who are the injured eye witnesses and complainant. P.W.1 in his evidence, has specifically stated on oath that, he has been serving as bill collector since 15 years. Everyday he travels to Kalyadi. On 15.12.2009 at about 4.00 pm, when he was near the house after returning 18 from duty, the accused No.4-Sumithra was abusing him infront of his house. When he questioned her as to why she is abusing, suddenly she assaulted on his forehead with a stone-M.O.5 and in the meantime, accused No.3- Mallikappa kicked him and accused No.1-Shankarappa assaulted him with M.O.4-chopper on his head and chest. The accused No.2-Murthy assaulted on his shoulder with a club-M.O.3. When P.W.2 came to the spot to pacify the quarrel, the accused No.1 assaulted her. In the cross-examination of P.W.1, nothing has been elicited by the defence.
19. P.W.2 has also deposed on par with P.W.1 and nothing has been elicited by the defence in the cross- examination. It is also not in dispute that the Doctors of Arasikere Government Hospital treated P.W.1. The P.W.9, after investigation, registered a complaint in Crime No.238/2009 against the accused persons for the offences punishable under Sections 504, 324, 307, 114 19 r/w 34 of the Indian Penal Code. It is also not in dispute that the accused persons also lodged a counter complaint on the next day i.e., on 16.12.2009 against the P.Ws.1 and 2 in Crime No.241/2009 for the offences punishable under Sections 504, 323, 324 r/w 34 of the Indian Penal Code. It clearly indicates that the alleged incident occurred on 15.12.2009 is an admitted fact and the same cannot be disputed. When query made by this Court, learned counsel for the accused persons farily submits that Crime No.241/2009 registered against the complainant and other persons ended in acquittal. It is also not in dispute that the judgment and order of acquittal acquitting the complainant and others in Crime No.241/2009 has reached finality, since the same has not been challenged either by the accused persons or by the Prosecution. The prosecution has not even challenged the impugned judgment and order of acquittal acquitting the accused persons in Crime 20 No.238/2009. It is the complainant who has filed the present Criminal Appeal.
20. Based on the complaint, after registering the FIR as per Ex.P.6, the same was sent to the Court through P.W.11 at 12.30 pm on the next day. Ex.P.2 is the spot mahazar. Ex.P.10 is the wound certificate in respect of of P.W.1, Ex.P.11 is the wound certificate in respect of P.W.2, both issued by P.W.12-Dr.Vijayakumar. Ex.P.10 clearly indicates lacerated wound 3cm x 5cm over left parietal area with active bleeding. The Doctor has opined that the injury is simple in nature. Ex.P.11- wound certificate issued in respect of P.W.2 issued by P.W.12 clearly indicates contusion 3cm x 2cm over right should region (bluish red in colour) and the injury is simple in nature. P.W.13-Dr.K.P.Hebbar, Orthopedic Surgeon issued Ex.P.13-wound certificate in respect of P.W.1 wherein it is stated that the patient is admitted in the ward on 15.12.2020 with complaint of pain in left 21 hand and wrist. X-ray of the wrist 3225 dated 23.12.2009, Scaphoid fracture (left) and the doctor opined that the injury is grievous in nature. The said wound certificate along with the evidence of the doctor on oath supports the case of the prosecution. P.W.12- Doctor in his examination-in-chief has stated that P.W.1-Siddabasappa came to him with history of assault with stick and sickle and on examination found lacerated wound 3cm x 5cm over left parietal area with active bleeding and opined that the injury is simple in nature. His evidence corroborates with Ex.P.10. He has further stated that he also examined P.W.2 who came with the history of assault and found contusion 3cm x 2cm over right shoulder region and accordingly, issued Ex.P.11 and opined that the injury is simple in nature. The evidence of P.W.12-doctor corroborates with the evidence of P.W.1 and 2 and Exs.P.10 and 11, the wound certificates. But nothing has been elicited in the cross-examination of P.W.12 by the defence. 22
21. P.W.13-Orthopedic Surgeon has stated that on 15.12.2009 he has seen one patient by name Siddabasappa-P.W.1 who was admitted in Sri Jayachamarajendra General Hospital, Arasikere as inpatient with history of assault. He has taken x-ray of left hand wrist and found scaphoid fracture (left) and opined that the injury is grievous in nature. Accordingly, he issued wound certificate-Ex.P.13 and his signature is marked as Ex.P.13(a).
22. Though the evidence of P.W.13 supported by Ex.P.13-wound certificate corroborates with the evidence of P.W.1 and 2 with regard to the assault made by the accused persons, the fact remains that in the examination-in-chief, P.W.13 has deposed that, "if a person falls with an outstretched in a melee such type of fracture can be sustained". In the cross-examination, the witness has admitted that, "the weapon used for assault was not stated by Siddabasappa and the injury 23 mentioned in Ex.P.13 can not be sustained, if a person is assaulted with a chopper or a club. Siddabasappa had told that he sustained an injury in an assault. Usually the injuries stated in Ex.P.13 cannot be sustained in an assault. If a person falls on the ground with outstretched hand, such type of injuries can be sustained". Therefore, the evidence of P.W.13-doctor would indicate that the alleged injuries sustained by P.W.1 would not attract the ingredients of Sections 326 of the Indian Penal Code to show the injuries were grievous in nature.
23. By careful reading of Ex.P.10-wound certificate issued by P.W.12 clearly indicates only one injury on the parietal area with active bleeding and the same is simple in nature. There is no injury on the hand of P.W.1, as stated in Ex.P.13-wound certificate issued by P.W.13. Admittedly, the prosecution has not produced 24 the x-ray report or film to prove that there was injury and fracture of left hand wrist.
24. The learned Sessions Judge was not justified in acquitting the accused persons, since the material on record clearly indicates that there was complaint and counter complaint and two cases were registered, one in Crime No.238/2009 for the offences punishable under Sections 504, 324, 307, 114 r/w 34 of the Indian Penal Code filed by P.W.1; another in Crime No.241/2009 for the offences punishable under Sections 504, 323, 324 r/w 34 of the Indian Penal Code filed by the accused No.4 against the complainants. The material on record clearly depicts that there was assault and counter assault between the parties.
25. In view of the evidence of P.W.12-Doctor, Wound Certificates Exs.P.10 and 11 and evidence of P.W.1 and 2 would clearly indicates that the present case squarely falls under Section 324 of the Indian Penal Code against 25 accused Nos.1, 2 and 4; and Section 114 of the Indian Penal Code against accused No.3 who abetted in commission of the offence.
26. The oral and documentary evidence on record would clearly indicate that the prosecution failed to prove any case against the accused persons for the offence punishable under Section 307 of the Indian Penal Code, in view of the inconsistent evidence made by P.W.13 and wound certificate Ex.P.13 so also grievous injuries under Section 326 of the Indian Penal Code is also not made out. The prosecution is able to prove the charges against the accused persons only for the offences punishable under Sections 324 and 114 r/w 34 of the Indian Penal Code.
27. For the reasons stated above, the point raised for consideration in the present Criminal Appeal is answered in the affirmative holding that the complainant has made out a case to interfere with the 26 impugned judgment and order of acquittal passed by the learned Sessions Judge acquitting the accused persons. However, he failed to make out a case against the accused persons for the offence punishable under Section 307 r/w 34 IPC. In our considered opinion, the offence committed by Accused Nos.1, 2 and 4 for having assaulted and causing simple injuries to PWs.1 and 2, would fall under Section 324 of IPC and the offences committed by Accused No.3, who has abetted the other accused to assault PWs.1 and 2 would fall under Section 324 r/w 114 of IPC. Thus, we find that the Accused Nos.1,2 and 4 are guilty for the offence punishable under Section 324 r/w 34 of IPC and Accused No.3 is guilty for the offences punishable under Section 324 r/w 114 of IPC.
28. For the reasons stated above, the Criminal Appeal filed by the complainant is allowed in part. The impugned judgment and order of acquittal is hereby set- 27 aside. The accused Nos.1, 2 and 4 are hereby convicted for the offences punishable under Sections 324 r/w 34 of IPC and accused No.3 is convicted for the offence punishable under Section 324 r/w 114 of the Indian Penal Code.
29. Taking into consideration the case and counter case made by the parties and the mitigating circumstances and the fact that the parties are agriculturists hailing from the same village, instead of sentencing the accused persons with imprisonment for the offences punishable under Sections 324 and 114 r/w 34 of the Indian Penal Code, we find it just and proper to impose fine. Accused Nos.1, 2 and 4 are sentenced to pay a fine of Rs.5,000/- each for the offence punishable under Section 324 r/w 34 of the Indian Penal Code, and in default to pay the fine amount, to undergo simple imprisonment for two years; Accused No.3 is sentenced to pay a fine of Rs.5,000/- 28 for the offence punishable under Section 324 r/w 114 of the Indian Penal Code and in default to pay the fine amount, to undergo simple imprisonment for two years.
30. Out of the fine amount collected, Rs.10,000/- is ordered to be paid to P.W.1-Siddabasappa and Rs.5,000/- is ordered to be paid to P.W.2-Mamatha, as compensation, and the remaining Rs.5,000/- shall vest with the State.
31. We appreciate the valuable assistance rendered by Sri N.S.Sampangiramaiah, learned Amicus Curiae for the complainant, in coming to the present conclusion of imposing punishment to the accused Persons. The High Court Legal Services Committee is directed to pay Rs.5,000/- as honorarium to Sri N.S.Sampangiramaiah, learned Amicus Curiae, forthwith.
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32. The Registry is directed to return the records to the Trial Court along with copy of this Judgment, for recovering the fine amount from the accused/ respondents.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE kcm