Telangana High Court
Vada Prabhu Kumar vs The State Of Ap., Rep.Byits P.P on 25 July, 2018
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SMT JUSTICE T. RAJANI
CRIMINAL APPEAL No.1187 of 2011
JUDGMENT:(per Hon'ble Smt Justice T. Rajani) This appeal is preferred against the judgment of the VI Additional District and Sessions Judge, Machilipatnam in S.C.No.26 of 2010 dated 17.09.2011 convicting him for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for Life and to pay fine of Rs.2,000/- in default to undergo simple imprisonment for six months for the offence punishable under Section 302 IPC.
2. The facts, in brief, as reflected in the charge sheet, are as follows:
The accused is a resident of Potumeeda village of Koduru Mandal and the deceased is a resident of Gajulavaripalem and used to lend amounts to villagers, for interest. On 02.06.2008, at 8.30 PM, the deceased was found dead near the culvert at Gajulavaripalem village of Avanigadda Mandal. Based on a report given by the complainant, in the first instance a case was registered in Cr.No.62 of 2008 under Section 174 of the Criminal Procedure Code, as the manner of death was not known by then.
During the course of investigation, the scene of offence panchanama was conducted and rough sketch was prepared. The inquest and post mortem examination, on the dead body, were conducted. While so, on 14.07.2008 at 8 AM, the accused was produced before L.W.27, the Investigating Officer, by L.W.23, who is 2 the VRO, with his report and extra-judicial confession, allegedly, made by the accused before L.W.23. Based on the extra-judicial confession, the Section of law was altered from 174 Cr.P.C. to 302 IPC. The confessional statement of the accused was recorded again by the I.O. and based on the said confessional statement, two promissory notes were seized, apart from a plastic tin containing cyanide poison.
The motive for the accused to commit the offence is stated to be, that the accused borrowed amount from the deceased by executing two promissory notes and in spite of several demands, the accused did not clear the debt. The deceased started pressurising him and on that, the accused made up his mind to do away with the deceased. The accused purchased cyanide poison with a view to kill the deceased, by mixing it with brandy. On 01.06.2008, the accused purchased 180 ml liquor bottle from L.W.14 belt shop and mixed it with cyanide poison and concealed the remaining cyanide poison under the sunshade of his house. On 02.06.2008, when the deceased pressurized the accused to discharge the debt, he asked him to come to Nagayalanka village at evening time along with two promissory notes executed by him. On the same day evening, at about 7 PM, the deceased was waiting for the accused, near Andhra Bank centre, Nagayalanka. L.Ws.6 and 10 witnessed him. The accused took the poison mixed liquor bottle and came to the deceased at about 7.30 PM and requested time till next day morning, to pay the debt amount. The deceased scolded him and showed two promissory notes. However, the accused managed the deceased on the ground of providing liquor and took him on his TVS moped, towards the scene of offence and the 3 same was witnessed by L.W.10. The deceased consumed poisonous liquor offered by the accused and fell down and lost his breath. On confirming the death of the deceased, the accused took the promissory notes from the pocket of the deceased and went away on his TVS moped.
On appearance of the accused, the Additional Judicial Magistrate of First Class took cognizance of the case under Section 302 IPC and after completing the legal formalities, committed the case to the Sessions Division, Krishna District by virtue of orders in PRC.No.50 of 2009 dated 07.01.2010. The learned Sessions Judge, in turn, made over the case to the Court of VI Additional District and Sessions Judge, Machilipatnam for trial and disposal. On appearance of the accused before the trial court, the charges referred to above came to be framed and were explained to the accused, to which the accused pleaded not guilty and claimed to be tried. During trial, inn support of its case, the prosecution examined P.Ws.1 to 20 and got marked Exs.P1 to P22 and M.Os.1 and 2. After completion of the prosecution evidence, the incriminating circumstances, appearing against the accused in the prosecution evidence, were put to him. The accused denied truth in the prosecution evidence and stated that he did not commit the offence, but did not choose to examine any witness on his behalf.
3. The Court below, considering the material on record, passed the impugned judgment against which the present appeal is preferred on the following grounds:
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The Court below ought to have disbelieved the evidence of the prosecution witnesses, which is full of contradictions and ought to have held that the scene of offence, in this case, is not established by the prosecution and it ought not to have believed the evidence of P.W.18 and Ex.P11, extra-judicial confession.
4. Heard both sides.
5. The counsel for the appellant pointed out the alleged discrepancies in the prosecution case, which are importantly with regard to the scene of offence and the objects found at the scene of offence. The counsel further contends that several objects were found at a small distance from the scene of offence but the same were not seized by the police. The said objects would give reason to infer that there might have been some more persons present at the scene of offence. He also contends that the recovery of the pronotes form the accused is not proved beyond reasonable doubt. The counsel for the appellant further contended that statements of the witnesses are, obviously, fabricated, as the same were admitted to have been filed along with the charge sheet by the I.O., though according to the evidence of I.O., they are usually filed along with the remand report of the accused. The counsel further pointed out that the material part of the evidence of the material witnesses is an omission in their earlier statements made before the police and hence, their evidence loses credibility and cannot be believed.
6. Learned Public Prosecutor, on the other hand, contends that the recovery of two pronotes from the accused, clinches the whole case in 5 favour of the prosecution. The evidence of P.Ws.1 to 3 would show that the deceased left the house along with the two pronotes, informing them that he was going to collect the amounts under the two pronotes executed by the accused. He further contends that the witnesses, who have last seen the deceased and the accused together, have stood firm and their evidence remains unshaken even by the cross-examination and hence, all the circumstances would unerringly point towards the guilt of the accused.
7. Keeping the above arguments in view, we frame the following points for determination:
1. Whether the evidence of the witnesses would prove that the deceased went on the work of collecting amounts under Ex. P5 and P6 pronotes, from the accused.
2. Whether the evidence of the witnesses, who have seen the accused and the deceased together, inspires confidence and can be believed.
3. Whether the recovery of the pronotes from the accused, can be believed.
4. Whether the judgment of the Court below is sustainable.
5. To what result.
POINT No.1:
8. P.W.1 is the son-in-law of the deceased and his wife is the eldest daughter of the deceased. He stated that his family consists of himself, the deceased, his wife and four children and they live together in one house. The deceased used to lend money on interest to the 6 villagers. The accused is known to him and he used to come to their house for taking money from the deceased and he used to take the deceased on his TVS moped. He personally knows about the accused borrowing amounts from the deceased. The scribe of the said pronotes is one Poorna Chandra Rao, who is examined as P.W.9. The accused borrowed Rs.10,000/- and Rs.15,000/- under two separate pronotes and did not repay the same, in spite of the demand made by the deceased and the deceased used to tell them about the same. He further stated that the deceased was liked by all the villagers, as he was an old aged man and not related to any group/parties in the village and that the deceased had good relations with all the villagers. Stating about the fateful incident, he stated that the deceased left the house along with two pronotes and did not return during that night. On the next day morning at about 5.30 or 6.00 AM, one Tungala Srinu informed them that he saw the deceased lying dead at a distance of 6 yards of the culvert situated on the Avanigadda and Nagayalanka road. All the family members went to the spot and found the dead body of the deceased and also some material objects, which include three brandi bottles of quarter size, one cool drink bottle, three disposable glasses, one containing some unconsumed brandy and an umbrella belonging to the deceased. He also observed KONGALA MANDU (some poisonous substance) at that place. Then he went to the police station and gave a report. Inquest was held over the dead body. Later, the accused made an extra-judicial confession stating that he killed the deceased by mixing the poisonous substance in the brandy. Then all the villagers came to know about the same and they were saying that the accused was responsible for the death of the 7 deceased. He further stated that on the date of the incident, at the time of dust, P.Ws.2, 8 and 9 observed that the deceased was going on the TVS moped of the accused. P.W.7 told him that when he asked the deceased as to why he was going on the TVS moped of the accused, for which the deceased told that the accused would give the debt amount to him, hence, he was going with the accused on TVS moped. P.Ws.8 and 9 also told him that they saw the deceased going on TVS moped of the accused on the date of the incident.
10. In the cross-examination, however, the information given by P.Ws.7, 8 and 9 was pointed as an omission in his earlier statement. It was admitted that besides the accused, there were other persons who borrowed money from the deceased. His evidence that he knows the accused and that he used to come to their house for taking money on debt and that he used to take the deceased on TVS moped and that whenever the accused borrowed the amount from the deceased, the deceased used to get the pronotes executed by one Poornachandra Rao and that he personally knows that the deceased asked the accused to pay the debt amount and that the accused borrowed Rs.10,000/- and Rs.15,000/- from the deceased under two separate pronotes and that he did not repay the amount despite the deceased asking for that and that the deceased used to tell them that the accused is not paying the debt in spite of repeated demands and that the deceased did not have enmity with anyone and that the deceased left the house with two pronotes executed by the accused, is also pointed out as an omission.
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11. With regard to the omissions subsequent to the extra-judicial confession made by the accused, though P.W.1 states that he was examined by the police twice, the same is not corroborated by the I.O. An oral enquiry that might have been possibly made by the police with the family members after the extra-judicial confession of the accused might have been misconceived as recording a statement. Moreover, there would not be any reason for the police to record the statement of the family members who only spoke about the motive against the accused and who are not the persons who saw the accused along with the deceased. The statements would be recorded, for the investigation to take a line and course. When the accused himself confesses about the offence, there would not be any need to record the statements of the witnesses who are not concerned with such confession and their statements would not be needed for further investigation. But, the omissions with regard to the deceased leaving the house along with pronotes executed by the accused may have some bearing on the testimony of P.W.1. He is the person, who gave the report to the police and a perusal of the report would be beneficial in order to appreciate the omissions pointed out. If the said omissions find place in the report, the omission may not become material, as his version nevertheless would be available in the report, which is given at the earliest point of time and his subsequent failure to reiterate the same may become attributable to other factors, like memory, etc.
12. A perusal of the report, Ex.P1, does not show that the fact that the deceased left the house along with pronotes is mentioned. But it was, however, mentioned that they have suspicion that the death 9 might have been because of the money lending business that the deceased had been carrying on. That would show that the deceased has no enemies, except the money lenders, who could have a reason to harm him.
13. P.W.2 is the daughter of the deceased. According to her version also, the accused used to come to their house and borrow money from the deceased and as such, he borrowed Rs.10,000/- and Rs.15,000/-. The deceased told her that he would go to the accused and ask him to pay the amounts borrowed by him and on the date of the incident, he left saying so. He also told her that he would not come for lunch. It is stated that the deceased took along with him the two pronotes executed by the accused. Later, she corroborates the evidence of P.W.1. The facts spoken by her, subsequent to the extra-judicial confession made by the accused, were pointed out as an omission in her earlier statement. Ex.D1, which is marked in her cross- examination, may contradict her evidence that the deceased told her that he was going to the accused but it would lend support to the fact that the deceased went out to meet his debtors. Several omissions were pointed out in her earlier statement, which are with regard to the accused coming to their house and borrowing the amount from the deceased etc.
14. The evidence of P.W.3 is that of another daughter of the deceased. According to her, the accused used to come to their house now and then and used to borrow the amounts. On the date of the incident, the deceased left the house and when she enquired with P.W.2 as to where he was going, she told her that the deceased went 10 to the accused for collecting the amounts. Later, she came to know about the death of the deceased. In the cross-examination, it was elicited that she does not know the other debtors of the deceased. Her evidence that she used to visit the house of P.W.1 and that she enquired with the deceased as to who the accused is and that the deceased informed that he is one Vada Prabhu Kumar and he borrowed amount, is pointed as an omission. Ex.D2 was marked during her cross-examination, which is not very material but it shows that she stated to the police that her father left the house and did not come till evening.
15. Apart from the evidence of P.Ws.1 to 3, the evidence of P.W.6 is also available, to appreciate the fact of the debt taken by the accused under Ex.P5 and P6 pronotes and the fact of the execution of the pronotes. P.W.6 is the grand daughter of the deceased. She also spoke about the deceased leaving the house on 02.06.2008. She stated that on that day at about 5.30 AM, the deceased gave her three pronotes and asked her to tell the names of the borrowers on the said pronotes. After seeing the pronotes, she told the deceased that two pronotes belong to Vada Prabhu Kumar and third pronote belongs to one Sanaka Venkata Ratnam. The two pronotes belonging to the accused were kept by the deceased in his shirt pocket and the third pronote was kept in the lower pocket of his banian. Her deceased grand father told them that he would not come to the house for lunch, as he was going to the accused for collection of the debt amount. They waited till 10 PM, but the deceased did not return home. The next day they came to know about the death of the deceased. 11 She further stated that she knows the accused and he used to come to their house for taking money and that he used to come on TVS moped. In the cross-examination, omissions pointed out are, that the deceased kept two pronotes belonging to the deceased in his upper shirt pocket and the third pronote in the lower pocket of his banian and that the deceased told them that he was going to the accused for collection of debt amount. She asserted in the cross-examination that she saw the pronote of the accused executed for Rs.10,000/-, which was executed in the month of May 2007. Hence, the evidence of P.W.6 that she saw the pronotes and the deceased gave her pronotes and asked her to tell the names of the borrowers, stands unshattered. So also the fact that the deceased took the pronotes along with him.
16. P.W.13, who is the scribe of Exs.P5 and P6, was examined. He testified that he scribed the two pronotes for the deceased. The deceased lent Rs.10,000/- and Rs.15,000/- to the accused and in that connection, he scribed the said pronotes. He also identified the pronotes shown to him in the court and he stated that the accused signed on the said two pronotes, across the revenue stamp affixed on the said two pronotes. In the cross-examination, it was pointed out that he did not state in his earlier statement that the accused borrowed the amounts of Rs.10,000/- and Rs.15,000/- from the deceased. But an admission was elicited from him, that he stated before the police that the accused and the deceased came to him and got scribed two pronotes, one for Rs.15,000/- and the second one for Rs.10,000/-, which were borrowed by the accused from the deceased. The only omission then is with regard to the accused signing on the 12 pronotes in his presence. But the probabilities have to be looked into. When the accused had accompanied the deceased and when the pronotes were scribed by P.W.13 stating that the amounts mentioned therein were borrowed by the accused, in all probability, the accused would sign on the pronotes. Even if it is assumed that he did not affix signatures in the presence of P.W.13, his presence at the time of scribing the pronotes stating that amounts were being borrowed by him under the pronotes by him stands proved. He might have signed on the pronotes subsequently. If that was wrong, he would have taken an objection for the deceased misrepresenting to PW.13.
17. P.W.15 was examined to speak about the deposits made by the deceased in the post office, which might have been for the reason to prove the capacity of the deceased to lend amount to the accused.
18. The above evidence would clinchingly prove that the accused borrowed amounts from the deceased under Exs.P5 and P6 and that on the date of the incident, the deceased went out along with the said two pronotes for collecting money from the accused.
The point is accordingly answered.
POINT No.2:
19 P.W.7 is a resident of Gajulavaripalem village, which is the village of the deceased. He stated that on 02.06.2008 at about 7.30 PM, he was the deceased at Andhra Bank centre in Nagayalanka while he was sitting. He enquired with the deceased whether he would come to the house along with him but the deceased told him that as the accused had to give money to him, he was waiting for the accused. 13 In order to explain the reason as to why he went to Nagayalanka, he stated that went to purchase provisions. He further stated that he was at Andhra Bank centre for 15 minutes and saw the accused taking the deceased on his TVS moped and he identified the accused before the Court. In the cross-examination he stated that 15 minutes after accosting the deceased, he purchased the provisions and he saw the accused taking the deceased on his TVS moped. He stated that his purchasing of provisions, observing the accused taking the deceased on his TVS moped and his boarding the bus, all happened within half an hour. For the question asked by the Court, he admitted that he did not state to the police that he went to Nagayalanka for purchasing provisions. A question was also asked by the Court whether he stated to the police that the deceased got on the TVS moped of the accused at 8.30 PM on that day, to which he explained that he told that it was 7.30 PM or 8 PM.Ex.D6 was marked through him, may be for the purpose of relying on the discrepancy in the timings stated by P.W.7 in the chief examination. But by virtue of marking Ex.D6, the accused brings out the fact that P.W.7 saw the deceased getting on the TVS moped of the accused, be it at 8.30 PM or 7.30 or 8 pm. It came in the cross-examination of PW7, that he is uneducated. Hence, the said discrepancy can be attributed to the said factor. The calculation of time might not have been meticulously made by P.W.7, but the fact remains that he stated to the police in his earlier statement that he saw the deceased getting on the TVS moped of the accused, be it at 7.30 PM or 8.30 PM.
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20. P.W.8 is a resident of Vekanuru village. He stated that he saw the deceased and the accused sitting on the culvert leading to the fields of one Tungala Gopalam and chit chatting, at about 8.30 PM on 02.06.2008. Under the impression that the deceased sat there to consume liquor, as he consumes liquor now and then, without accosting the deceased and the accused he returned to his house. On the next day, he came to know about the death of the deceased. He came to Avanigadda Government Hospital and saw P.W.1 weeping, saying that he went from the house to collect the debt amounts and died without returning to the house. On hearing the same, he told P.W.1 that he saw the deceased and the accused sitting together at 8.30 PM, near the culvert leading to the filed of Gopalam and consuming liquor. This part of his evidence though was pointed out as an omission, the material part of it, ie. that he saw the deceased and the accused sitting together on the culvert leading to the fields of Gopalam and consuming liquor, is not an omission. Ex.D7, which is to the effect that at the dead body of the deceased, he asked P.W.1 as to what happened for which P.W.1 told that the deceased left the house at 5.30 AM for collection of amount and did not return to the house in the night, is marked. The purpose for marking Ex.D7 is not explained but it may be for the purpose of the time which is stated as 5.30 AM. But in our considered opinion, the time, which was allegedly, stated by P.W.1 may not be material and it may be attributed to either lack of comprehension of time or erroneous recording of the statement. It proves that he has informed PW.1 about his seeing the deceased and the accused together.
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21. P.W.9 is another witness, who saw the deceased going on the road, on the date of the incident and while coming from Nagayalanka at about 9 PM, he saw the accused coming on his TVS moped towards Nagayalanka. It is not an omission in his earlier statement also. In the cross-examination, he explained that he did not stop his cycle but saw the accused on his TVS moped. It was also elicited that he did not tell anybody that he saw the accused going towards Nagayalanka on his TVS moped on the previous night. P.Ws.10 to 12 turned hostile.
22. A combined reading of the evidence of the above witnesses would show that the accused was seen along with the deceased, consuming liquor near the scene of offence at about 8.30 PM and the accused was seen on his TVS moped at 9 PM by P.W.9. The death of the deceased, according to the evidence of the Doctor, who conducted the post mortem examination, is within 24 hours form the time of post mortem examination. He explained that the time includes 10 - 16 hours also. Hence, the time of death and the time at which the accused and the deceased were seen together correspond. The case, thus gains support.
The point is accordingly answered.
POINT No.3:
23. The recovery of Exs.P5 and P6 was made from the accused after he made an extra-judicial confession before P.W.18, who is the VRO of Vekanuru village.
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24. Learned counsel for the appellant contented that absolutely there is no reason for the accused to approach P.W.18 to make a confession, when he is not even the VRO of his village.
25. The evidence of P.W.18 shows that Gajulavaripalem, from which village the deceased and the accused hail, is a hamlet of Vekanuru village. Hence, there need not be any reason to doubt that the accused confided in P.W.18 to make confession. The confession was made on 14.07.2008. Prior to the confession made, the scene of offence panchanama was conducted in the presence of P.W.17 on 13.06.2018. P.W.17 is a witness to the said proceedings. He also speaks about Gajulavaripalem village being a hamlet of Vekanuru village. At the scene of offence, which is near the culvert, they saw glasses, three empty quarter bottles of brand Officers Choice, bananas and one glass in which there was some liquor, cover containing boondi packet and an umbrella belonging to the deceased. He observed one MAA brand cool drink bottle on the western side of the culvert. In the pockets of the deceased, they found one RTC ticket, two postal passbooks standing in the name of the deceased and one scribed pronote executed by Sanaka Venkata Ratnam. This fact would support the evidence of P.W.6, who stated that the deceased went along with three promotes, two executed by the accused and one executed by Sanaka Venkata Ratnam. It cannot be said that the pronote of Sanaka Venkat Ratnam was planted, as it would be implicating him in a financial debt. Slips were pasted on the seized articles and P.W.17 signed on the panchanama. In the cross-examination, it was elicited that the scene of offence is a pathway leading to the fields of Tungala Gopalam. Out 17 of the articles found near the scene of offence, which are, empty quarter brandy bottles of officers choice, two unused plastic glasses and boondi packet and liquor containing plastic glass, bananas and umbrella, which were, allegedly, found at the scene of offence, most of them were found on the southern side of the culvert. It is on the basis of this fact, that the counsel for the appellant contends that there is involvement of more than on person. But the investigating officer, in his evidence, explains that the other material objects found at the scene of offence are not related to the present case. Hence, the contention of the counsel for the appellant gets marginalized.
26. With regard to the extra-judicial confession made before P.W.18, we have already observed that there was sufficient reason for the accused to make the confession before P.W.18. It is after the said confession that the accused led P.W.18 and the police to his house from where Exs.P5 and P6 and plastic tin containing potassium cyanide were seized. The possession of the pronotes by the accused would prove beyond doubt that he has clear nexus with the death of the deceased. The accused did not account for his possession of the pronotes, when he was examined under Section 313 of the Criminal Procedure Code, thereby leaving only one inference that he has taken the said promotes, after committing the murder of the deceased, in order to leave no evidence of his debt, with even the legal heirs of the deceased. That also supports the motive aspect that he murdered the deceased in order to evade payment of amount.
The point is accordingly answered.
POINT No.4:
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27. The counsel for the appellant relies on the evidence of Investigating Officer, P.W.20, who sated that he filed 161 Cr.P.C statements of the witnesses, along with the charge sheet. But the statements would show the date as 03.06.2008. Even if it is assumed that the statements might have been fabricated subsequently with an antedate, the inquest report also bears the same date, which cannot be contended as manipulated, as it contains the signature of independent witnesses, which is a factor lending support to the fact that the statements could not have been fabricated. It cannot be expected and assumed that everyone would play to the tunes of the police and manipulate things.
28. The other contention of the counsel for the appellant is that the behaviour of the witnesses, who saw the deceased and the accused together, in not informing the same either to the police or to the family members of the deceased is abnormal. But the inquest report says that the deceased was seen at Nagayalanka. Usually in a village, the relations between villagers would be such as not to invite any displeasure from each other. It cannot be expected that the witnesses, who saw the deceased and the accused together, would be able to entertain a doubt with regard to the complicity of the accused in the death of the deceased for they might have been not felt it proper to disclose the said fact, which would probably imply that the witnesses were suggesting that the accused had something to do with the death of the deceased. When once the accused made an extra-judicial confession before P.W.18, the witnesses came out with the supporting fact that they saw the accused and the deceased together. 19 Hence, there need not be any doubt about the credibility of the said witnesses simply based on their omission to state about their seeing the accused and the deceased together to the police or to the family members of the deceased prior to the extra-judicial confession.
29. The other contention is with regard to the discrepancy in the scene of offence. The counsel contends that in the statement of P.W.8 it was mentioned that the incident occurred in the fields of Tungala Gopalam. But the said contention does not carry much weight as nevertheless the incident occurred on the pathway to the fields of Tungala Gopalam.
The point is accordingly answered and we do not find any reason to interfere with the judgment of the Court below.
30. Learned Public Prosecutor submitted that the appellant is granted bail vide order dated 28.12.2016 in CRLAMP.No.2344 of 2016. POINT No.5:
In the result, the criminal appeal is dismissed upholding the conviction and sentence imposed on the appellant/accused in SC.No.26 of 2010 dated 19.09.2011 by the VI Additional District and Sessions Judge, Machilipatnam. The period of detention/imprisonment undergone by the appellant/accused before trial and after trial shall be set off against the term of imprisonment. The appellant/accused, who is on bail, is directed to surrender before the trial Court, which shall commit him to the concerned jail for undergoing the remaining period of imprisonment.20
As a sequel, the miscellaneous applications, if any pending, shall stand closed.
___________________ C. PRAVAEEN KUMAR, J __________ T. RAJANI, J July 25, 2018 Note: Office to dispatch the copy of the judgment to the Trial Court forthwith.
(B/o) DSK