Bombay High Court
Prakash Trinath Jalwar (In Jail) vs State Of Maharashtra Thr. P.S. ... on 4 February, 2025
Author: N.B. Suryawanshi
Bench: N.B. Suryawanshi
2025:BHC-NAG:1096-DB
1 apeal102.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.102 OF 2019
Prakash Trinath Jalwar
(Accused No.1)
Aged about 31 years, Occ: Labourer,
Presently at Central Prison, Nagpur
(Convict No.C-10066) ...APPELLANT
...V E R S U S...
State of Maharashtra,
Through Police Station Officer,
Gadchandur, Tahsil Korpana,
District Chandrapur. ...RESPONDENT
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Shri A.M. Balbande, Advocate (appointed) for appellant.
Shri S.S. Doifode, APP for respondent/State.
Shri P.A. Abhyankar, Advocate assisting the prosecution.
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CORAM :- N.B. SURYAWANSHI & M.W. CHANDWANI, JJ.
ARGUMENTS WERE HEARD ON :- 09.01.2025.
JUDGMENT IS PRONOUNCED ON :- 04.02.2025.
ORAL JUDGMENT (PER : M.W. CHANDWANI, J.):
. This appeal takes exception to the judgment and order of conviction dated 10.05.2018 passed by the learned Additional Sessions Judge, Chandrapur in Session Case No.98/2016 thereby convicting the appellant (accused no.1) for the offence punishable under Sections 302, 460 and 201 of the Indian Penal Code (for short, "IPC") and sentencing him to suffer rigorous imprisonment for life and a fine of Rs.5,000/-, rigorous imprisonment for three 2 apeal102.19.odt years and a fine of Rs.2,000/- and rigorous imprisonment for one year and a fine of Rs.1,000/- respectively with a default clause.
The case of the prosecution can be summarized in a narrow compass as under:
2. On 01.09.2015, Sachin Jungari (PW1) received information on the phone that his father-in-law/Dr. Jogi and mother-in-law/Mrs. Sudha Jogi are no more and therefore, he alongwith his wife Smita (PW14) and other relatives came to village Nanda. When they entered into the house of Dr. Jogi, they found that Dr. Jogi and Mrs. Jogi were lying in the pool of blood and they were murdered by some unknown person. Articles in the house were scattered. On search, Sachin (PW1) and Smita (PW14) found that one LED TV, DVD player, one set-top box, gold and silver ornaments, cash amount, coins, mobile phones and others articles were missing. On the complaint lodged by Sachin (PW1), offences under Section 302 and 460 came to be registered against unknown persons and police machinery was set into motion. The incriminating articles were seized from the spot. The investigating officer referred the dead bodies for post-mortem and prepared spot panchanama, inquest panchanama and questionnaire for the Medical Officer. Thereafter, clothes of the deceased were also seized.
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3. After about nine months, the appellant alongwith other accused came to be arrested in this crime. At the instance of the appellant, the police seized weapons of the offence i.e. iron rod, stolen articles - gold and silver ornaments and other articles such as mobile phones, SIM Cards and set-top box from various places. After completion of the investigation, the charge-sheet came to be filed against the appellant and one other co-accused. The appellant and the co-accused were put on trial. The appellant and the co- accused pleaded not guilty to the charge framed against them. The prosecution in all examined 22 witnesses. The statements of the appellant and the co-accused were recorded under Section 313 of the Code of Criminal Procedure (for short, "CrPC"). After hearing, trial Court convicted the appellant for the aforesaid offences whereas, the co-accused was acquitted from all charges. Feeling aggrieved with the impugned judgment of conviction and sentence imposed by the learned trial Court, the present appeal came to be filed.
4. At the outset, we must mention here that in the present case there is no eyewitness to the incident. The prosecution relied on various circumstances. The trial Court on the basis of incriminating circumstances brought on record by the prosecution, held the appellant guilty for the offence of murder and house 4 apeal102.19.odt trespass and accordingly, convicted him for the offences punishable under Sections 302, 460 and 201 of the IPC.
5. Before proceeding further, we must deal with the law on circumstantial evidence. It is well settled that when the case is based on circumstantial evidence, all the circumstances relied upon by the prosecution should be conclusive in nature and must be clearly established. The proved circumstances, if put together shall form a complete chain so as to point only towards the guilt of the accused by excluding the possibility of innocence of the accused and should be consistent only with the hypothesis of the guilt of the accused. Keeping this principal in mind, we now proceed to examine whether the circumstances brought on record by the prosecution and considered by the trial Court are sufficient to prove the guilt of the accused beyond reasonable doubt.
6. The prosecution, first in turn has examined Sachin (PW1), the son-in-law of deceased Dr. Jogi and Mrs. Jogi. It has come in his evidence that after receipt of the information about the death of his father-in-law and mother-in-law, he alongwith his wife (PW14) went to the house of Dr. Jogi and found the dead bodies of Dr. Jogi and Mrs. Jogi. It has also been noticed by this witness that both the dead bodies had injuries and blood was scattered on the 5 apeal102.19.odt entire floor. They found that one LED TV, one DVD Player, one set- top box, ornaments and mobile phones were missing. The lock of the cupboard was broken and all the material was scattered; even the cash amount and a plastic jar containing coins was missing. Therefore, he went to Gadchandur Police Station and lodged a complaint (Exh.58) whereupon the FIR came to be registered (Exh.59). His evidence is also supported by Smita (PW14), the daughter of deceased Dr. Jogi and Mrs. Jogi who had accompanied him and discovered the aforesaid scene in their house.
7. Anil Musale (PW8), who was serving as Headmaster in Prabhu Ramchandra Vidyala,Nanda, a panch witness to the spot panchanama (Exh.91) has identified the spot panchanama (Exh.91) which speaks about the situation in the house of deceased Dr. Jogi which has been deposed by Sachin (PW1) and Smita (PW14). The spot panchanama reveals that dead bodies of the deceased persons were having bleeding injuries and articles were lying in a scattered condition in the house coupled with the fact that the lock of the cupboard was broken.
8. From the above said material available on record what can be deduced is that, somebody with an intention to rob, entered into the house of Dr. Jogi and while committing robbery he/they 6 apeal102.19.odt committed the murder of Dr. Jogi and Mrs. Jogi. Robbery and murder in the present case are the outcome of the same transaction. We do not find any force in the argument of the learned counsel for the appellant that, since he was involved in the business of property dealing, somebody with an intention to take revenge might have committed the above referred crime. The circumstances on record indicate that the deceased persons were robbed at their home and have been murdered by the same person who robbed the articles from the he house of the deceased persons.
9. To prove the recovery of ornaments at the instance of the appellant, the prosecution has examined Vijay Wasade (PW5) a panch to the memorandum panchanama (Exh.75) and recovery of ornaments under panchanama (Exh.76).
10. Vijay (PW5) has deposed that he went to Gadchandur Police Station where another panch witness Vitthal Gonde was present. It appears from the tenor of this witness that the appellant had informed the police in their presence that he had concealed some gold and silver ornaments and he is ready to handover the same. Accordingly, police prepared a memorandum panchanama (Exh.75) which is signed not only by this witness but also the other witnesses and the investigating officer. Further, it is also the version 7 apeal102.19.odt of this witness that the appellant took them to his house. In the courtyard of the said house, there was one cement block near a papaya tree. The appellant broke the said cement block down wherefrom, gold rings, bangles, patlies, some silver coins and other silver and gold ornaments were recovered. These articles were taken to the goldsmith who weighed the said ornaments under panchanama (Exh.76).
11. The version of Vijay Wasade (PW5) is corroborated by investigating officer-Sudhir Khiradkar (PW18) who deposed on the same line as that of PW5. This witness testified that pursuant to the memorandum panchanama (Exh.75), the appellant took them to his house and showed one cement block. The appellant asked them to remove the said cement block and told them that the ornaments of the present crime are concealed under the said block. Accordingly, the ornaments made of yellow metal and white metal were seized.
12. The versions of Vijay (PW5) and Investigating Officer (PW18) are further corroborated by the memorandum panchanamas (Exh.75 & Exh.76). Santoshkumar Chhajed (PW6) valued the articles (ornaments) seized at the instance of the appellant and found that some of the articles were made of gold and silver.
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13. Needless to mention that Section 27 of the Indian Evidence Act is an exception to the general rule wherein, when any fact is discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Such a discovery is a guarantee that the information supplied by the accused is true.
14. A reference can be made to the decision of the Supreme Court in the case of Asar Mohammad and others V. State of Uttar Pradesh 1 in Para 21 as under:
"21.It is a settled legal position that the facts need not be self-probatory and the word "fact" as contemplated in Section 27 of the Evidence Act is not limited to "actual physical material object". The discovery of fact arises by reason of the fact that the information given by the Accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the Accused as to its existence......."
15. Therefore, the above said versions of PW5, PW6 and PW18 coupled with the production of those articles in Court establish the recovery of those articles on the information given by 1 (2019) 12 SCC 253 9 apeal102.19.odt the appellant which would be admissible under Section 27 of the Indian Evidence Act.
16. This takes us to the version of Smita (PW14), the daughter of the deceased couple who was called by Umesh Gedam (PW7) Executive Magistrate at the request of police. It appears from the versions of these two witnesses that the identification process was conducted by Umesh Gedam (PW7), wherein Smita (PW14) identified the Mangalsutra, gold tops and birya gold from the ornaments seized at the instance of the appellant, as ornaments which belonged to her mother.
17. It is submitted on behalf of the learned counsel for the appellant that in the first information report lodged by Sachin (PW1) there is a mention of a mangalsutra of 40 grams and gold tops of 5 grams but the mangalsutra and the gold tops recovered in the crime are not 40 grams and 5 grams respectively. Therefore, it cannot be said that the appellant was found in possession of the ornaments belonging to the deceased Sudha Jogi. It is matter of a record that a big tragedy happened at the house of the Jogi couple. The relatives were themselves shocked by the incident of double murder, it cannot be excepted from them to search missing articles especially when the dead bodies of the couple were lying in front of 10 apeal102.19.odt those relatives in the house. In that scenario, it is not expected from a person to give a list of all missing or stolen articles from the house or to give the exact weight of the ornaments. The version of Smita (PW14) goes to show that she was able to identify the gold ornaments managalsutra, gold tops and birya. Therefore, the prosecution was successfully able to prove the ownership of the ornaments of deceased Sudha, recovered at the instance of the appellant.
18. Let's consider the next circumstance; recovery of a set- top box of TataSky company connected to the house of the deceased couple at the instance of the appellant in the presence of Govindprasad Gupta (PW2), other panchas and the investigating officer. Govindprasad Gupta (PW2), Assistant Teacher has deposed that on 19.03.2016, the appellant was present in the police station and he confessed that, an LED TV and a set-top box have been concealed by him and showed his readiness to handover the same. The memorandum panchamana (Exh.62) came to be prepared and thereafter, the appellant took them near a Nalla. The appellant entered the said Nalla and took out one set-top box of TataSky Company which was seized under recovery panchanama (Exh.63) and then police took six photographs. This witness has identified the said set-top box produced by the prosecution in Court as Article-1.
11 apeal102.19.odt Inspite of searching cross-examination, nothing has been brought on record by the appellant to disbelieve the testimony of this independent witness, who is an assistant teacher. His version is also corroborated by the Investigating Officer (PW18) as well as memorandum panchanama (Exh.62) and recovery panchanama (Exh.63) coupled with identification of the set-top box (Article-1) before the Court. Perusal of the recovery panchanama (Exh.63) reveals that the said TataSky set-top box contained a white coloured card bearing No.000114492705. It is also brought on record that the said set-top box was registered in the name of Sachin (PW1), the son-in-law of the deceased couple. Thus, prosecution has also established the recovery of set-top box of TataSky company at the instance of the appellant which was missing from the house of the deceased couple.
19. The prosecution has also relied on the recovery of an iron rod at the instance of the appellant, which has been proved through PW3, who has deposed that the appellant told the police that he has concealed an iron rod in the Nalla nearby his house and showed his readiness to handover the same. His evidence is corroborated not only by the Investigating Officer (PW18) but also by Ramdas Jiwane (PW11), who supplied the JCB machine. Ramdas Jiwane has deposed that one constable namely Sampat requested 12 apeal102.19.odt him to provide his JCB machine to lift some mud from the stream near Prabhu Ramchandra Vidayala of Nanda. He provided his JCB alongwith his driver Chakradhar Mankar (PW12). PW12 deposed that after digging for one and a half hours they found one iron rod in the lifted material. Police asked him to leave the place alongwith his JCB. Chakradhar Mankar (PW12) has specifically deposed that the JCB was used for searching the iron rod from the Nalla at the instance of the appellant and the iron rod is seized under seizure panchanama (Exh.67).
20. The most crucial circumstance on which the prosecution has heavily relied on is the recovery of the Micromax phone being used by Mrs.Sudha Jogi which was missing from the house of the deceased couple since the date of incident. To prove the recovery of the Micromax phone bearing IMEI No.911368008699620, the prosecution relied on the version of Kapil Borde (PW3), who was working in ZP School, Dara who has deposed that he was called by the police in May 2016. He, alongwith one Rathod went to Gadchandur Police Station where the appellant was present. In their presence, the appellant told that he has committed theft of one white mobile from the house of Dr. Jogi and showed his readiness to handover the same. The police noted the confession accordingly under the memorandum panchanama 13 apeal102.19.odt (Exh.65); thereafter, the appellant took them to his house and dug some earth on the side of his house and retrieved one white coloured mobile phone from beneath the earth which was seized under panchanama (Exh.66).
21. The prosecution has also come up with a case that a white coloured Micromax mobile phone having IMEI No.911368008699620 owned by Dr. Jogi and was being used by Mrs. Jogi before the said incident. Vyankana Ramdeni (PW21), the owner of a grocery and mobile shop and his son Sunil Ramdeni (PW22) have been examined by the prosecution to prove the ownership of the mobile phone bearing IMEI No.911368008699620. Both of them have deposed that Samsung and Micromax mobile phones were sold to Dr. Jogi. The bill of the Micromax mobile phone has been placed on record at Exh.170 which carries a sticker of IMEI No.911368008699620. Not only this, the mobile phone has been identified by both these witnesses (PW21 & PW22) as well as Smita (PW14), the daughter of the deceased couple.
22. According to prosecution, after the incident Micromax mobile phone belonging to Mrs. Jogi was used by the appellant. For that purpose the prosecution has relied upon the version of Sachin Shinde (PW19), who supplied the CDR and SDR of the said 14 apeal102.19.odt Micromax mobile phone having IMEI No.911368008699620 and mobile No.9146273500. Accordingly, he produced the CDR (Exh.154). Perusal of the CDR (Exh.154) reveals that from 02.04.2016 to 04.05.2016 the mobile No.9146273500 was being used in the mobile having IMEI No.911368008699620. It has also been brought on the record from the version of this witness that the SIM card having mobile No.9146273500 has been purchased in the name of the appellant vide application (Exh.157) and with residence proof of the appellant (Exh.158). Nothing has been brought on record in the cross-examination of this witness.
23. The version of this witness demonstrates that a mobile phone bearing IMEI No.911368008699620 was being used by the SIM card holder of 9146273500. Thus, it is proved that the mobile phone bearing IMEI No.911368008699620 was being used by the appellant after the incident from 02.04.2016 onwards. That apart, their versions are also supported by Mahadeo Pendor (PW10), a peer of the appellant working with him at Shetty Brothers Contractors he has deposed that the appellant was using the Micromax mobile phone (Article AB-4). Thus, it has been conclusively proved that the appellant was found in possession of the Mircomax mobile phone owned by Dr. Jogi and used by Mrs. 15 apeal102.19.odt Jogi, which was missing from the house of the deceased couple from the day of incident.
24. Possession of ornaments of deceased Sudha Jogi, the TataSky set-top box which was missing from the house of the deceased couple and the weapon i.e. iron rod are recovered at the instance of the appellant so also, the possession of Micromax mobile bearing IMEI No.911368008699620 which belongs to deceased Sudha Jogi, in the custody of appellant and the fact that the said Micromax mobile phone was being used by the appellant after the incident is self-speaking. It was for the appellant to explain as to how he got the possession of the gold and silver ornaments as well as the set-top box and the iron rod but he failed to offer any explanation of the special knowledge of possessing those articles which belonged to the deceased couple. The appellant took a defence of total denial and has filed to offer no explanation about incriminating circumstances put to him at the time of recording his statement under Section 313 of the CrPC. Appellant in his statement under Section 313 of the CrPC did not offer any explanation about recovery of these articles belonging to deceased Sudha and the murder weapon. "The mere denial of prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence with the accused, but consistent with the hypothesis that 16 apeal102.19.odt the appellant is a prime accused in the commission of murder of his wife." (vide Ganeshlal Vs. State of Maharashtra 2). Therefore, he did not discharge the burden under Section 106 of the Indian Evidence Act. As per the presumption under Section 114 illustration (a) of the Indian Evidence Act, it can be inferred that it is the accused who has stolen those articles from the house of deceased Jogi couple.
In R. Sreenivasa Vs. State of Karnataka 3 the Hon'ble Supreme Court has held in para 23, which reads thus:
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the 2 (1992) 3 SCC 106 3 2023 SCC OnLine SC 1132
17 apeal102.19.odt court can consider his failure to adduce any explanation, as an additional link which completes the chain........" Non-offering of plausible explanation by the appellant provides an additional link in the chain of circumstances proved against him. Appellant has not thrown any light upon the facts which were specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence. Therefore, his failure to give any explanation is required to be treated as an additional link to sustain his conviction. Due to his failure to offer any explanation, an adverse inference needs to be drawn against him that he has stolen the articles from the house of deceased Jogi couple.
25. All the aforesaid circumstances discussed above clearly show that all of them are conclusive in nature and clearly establish that no other person except the appellant can be held responsible for the aforesaid crime. The aforesaid chain of circumstances is reliable, trustworthy and pin points conclusively towards the guilt of the appellant. In other words, if all those circumstances are clubbed together at once, the only inference that can be drawn is that it is only the appellant who has committed the murder of the deceased couple and thereafter, has stolen all the valuable articles from their house in the intervening night of 31.08.2015 and 01.09.2015.
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26. The murder and robbery in these circumstances are proved to have been an integral part of the same transaction. Therefore, the appellant not only robbed the deceased couple but also murdered them while committing the robbery. This is for the simple reason that the circumstances appearing in the record and the condition of the house where the crime occurred on the day of incident clearly demonstrates that the robbery and murder are an integral part of the same transaction. This is also fortified by the evidence of the Doctor (PW4) who has deposed that the deceased couple had the following injuries:
Injuries found on the person of Dr. Devrao Pandurang Jogi -
"i)abrasion on right nostril, size 1 inch x 1 inch.
ii) horizontal lacerated wound on mid posterior parietal bone of size 3 inch x 1 inch x bony cavity deep. I have mentioned both injuries in column No.17.
iii)commuted fracture of mid posterior parietal bone of size 4 inch x 4 inch palpable. Aforesaid injury is corresponding injury to injury No.2 in column No.17. I have mentioned this injury in column No.18.
iv) a sub-dural haematoma of size 6 inch x 6 inch present in posterior parietal region.
v) commuted fracture of mid posterior parietal bone of size 4 inch x 4 inch palpable. Aforesaid injury is corresponding injury to injury No.2 of column No.17. I have mentioned this injury in column No.19."
As per post-mortem report (Exh.69), the cause of death of Dr. Devrao Jogi mentioned is "death on account of head injury".
19 apeal102.19.odt Injuries found on the person of Sudha Devrao Jogi -
"i) lacerated wound on mid forehead of size 2 inch x ¼ inch x bony deep. I have mentioned both injuries in column No.17.
ii) lacerated cut wound to upper lip of left side ½ inch deep.
iii) contusion on both upper and lower lip with cyanosis and laceration on inner aspect of both lips with bleeding seen.
iv) contusion on nose size 1 inch x 2 inch.
v) upper three incised teeth on left side rooted out.
vi) upper three teeth on right side loosen with palpable fracture to jaw.
vii) lacerated wound to right upper eye lid size ½ inch x ¼ inch. All those injures mentioned in column No.17.
viii) nasal bone have palpable commuted fracture. I have mentioned this injury in column No.18.
ix) petechial haemorrhages seen on brain substance. I have mentioned this injury in column No.19."
As per post-mortem report (Exh.70), the cause of death of Sudha Jogi mentioned is "asphyxia due to smothering'".
Dr. Kalosadkar (PW4) also proved the query report (Exh.71) for an iron rod forwarded by the investigating agency. After examining the weapon i.e. iron rod he opined that injuries mentioned in para 17 of post-mortem report of Dr. Devrao Jogi can be caused by aforesaid iron rod. According to him, injuries mentioned in post-mortem report (Exh.70) of Sudha Jogi cannot be caused by the said iron rod. It is thus clear that injuries of Dr. Devrao Jogi were caused by the iron rod recovered at the instance of the appellant.
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27. Though cause of death of deceased Sudha Jogi is asphyxia due to smothering but the fact remains that she died an unnatural death and there were injuries on her person. Therefore, just because of the iron rod was not used while assaulting deceased Sudha Jogi the same would not be of help to the appellant as robbery and murder are integral part of the same transaction.
28. In Gulab Chand vs State Of Madhya Pradesh 4 the Hon'ble Supreme Court held that "...in Earabhadrappa alias Krishnappa Vs. State of Karnataka [1983] 2 SCC 330 this Court has held that the nature of presumption under Illustration (a) to Section 114, must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot he said to be too long particularly when the Appellant had been absconding during that period. In our view, it has been rightly held by the High Court that the accused was not affluent enough to possess the said 4 (1995) 3 SCC 574 21 apeal102.19.odt ornaments and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery a reasonable inference of the commission of the said offence can be drawn against the appellant....., no plausible explanation for lawful possession of the said ornaments immediately after the murder has been given by the accused. In the facts of this case, it appears to us that murder and robbery have been proved to have been integral parts of the same transaction and therefore the presumption arising under illustration (a) of Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments." These observations are applicable to the facts of the present case to sustain the conviction.
29. In view of foregoing discussion, we do not find any infirmity in the impugned judgment. The learned trial Court has rightly appreciated the evidence on record in proper perspective and rightly convicted the appellant for the aforesaid offences. Therefore, the appeal fails and is dismissed.
(M.W. CHANDWANI, J) (N.B. SURYAWANSHI, J.) Wagh