MANU/KE/1562/2023

Equivalent Citation: 2023/KER/37 624

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. A No. 880 of 2019

Decided On: 06.07.2023

Appellants: Gopesh
Vs.
Respondent: State of Kerala and Ors.

Hon'ble Judges/Coram:
P.B. Suresh Kumar and C.S. Sudha, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Krishnalal S., Adv.

For Respondents/Defendant: Sheeba Thomas, P.P.

JUDGMENT

C.S. Sudha, J.

1. This appeal under Section 374(2) Cr.P.C. by the sole accused in S.C.
No. 345/2015 on the file of the Court of Session, Kottayam has been
filed through the Superintendent, Central Prison,
Thiruvananthapuram under Section 383 Cr.P.C. challenging the
conviction entered and sentence passed against him for the offence

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 punishable under Section 302 IPC.

2. The prosecution case is that-the accused and the deceased, Sindhu,

were in a live-in-relationship for the past five years. They were eking
out their livelihood by collecting and selling scrap. They used to spent
their nights on shop varandhas and at tapioca plantations.
Sindhu had left her husband and two children to join the accused. She
used to tell the accused that she would go back to her husband and
family, due to which the accused was in inimical terms with her. Due
to this enmity and with the intention to kill her, the accused on
26/02/2015 at 09:30 p.m pushed Sindhu down from the staircase of
the first floor of Thottattil building situated in ward no.52 of Kottayam
Municipality. He pursued her to the tapioca plantation situated nearby
and about 10.30 p.m, voluntarily caused hurt to her by beating and
pushing her down. When Sindhu fell down on her stomach, the
accused sitting on her back pressed her neck and face to the ground
and smothered her to death. Hence the accused is alleged to have
committed the offence punishable under the above mentioned Section.

3 . Based on Ext.P1 FIS given by PW1 on 27/02/2015 at 03.30 p.m,

crime no.297/2015 of Gandhi Nagar police station, Kottayam was
registered by PW18, Senior Civil Police Officer. Ext.P11 FIR was
registered under Section 174 Cr.P.C. and the FIR was submitted before
the Sub Divisional Magistrate Court, Kottayam. On 27/02/2015, the
initial investigation was conducted by PW19, the Sub Inspector of
Police, Gandhi Nagar police station. He conducted inquest at the scene

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 of occurrence and prepared Ext.P2 report. After the inquest, the body
was sent for postmortem examination. PW12 conducted the autopsy
and the postmortem report is Ext.P5. Thereafter, PW19 filed a report
before the court incorporating Section 302 IPC. On 01/03/2015,
PW23, the then Circle Inspector Kottayam East police station took over
the investigation, conducted the investigation and submitted the
charge sheet before the court against the accused.

4 . On the final report being submitted, the jurisdictional magistrate

after complying with the statutory formalities committed the case
against the accused to the Sessions Court concerned, which court took
the case on file as S.C. No. 345 of 2015. On appearance of the accused
before the Court of Session, he was furnished with copies of all the
prosecution records. On 02/02/2016, the trial court framed a charge
for the offence punishable under Section 302 IPC, which was read over
and explained to the accused to which he pleaded not guilty. The
prosecution examined PW1 to PW24 and got marked Exts.P1 to P22
and MO.1 to MO.11. After the close of the prosecution evidence, the
accused was questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against him in the evidence of
the prosecution. The accused denied all the circumstances and
maintained his innocence. As the Sessions Court did not find it a fit
case to acquit the accused under Section 232 Cr.P.C., he was asked to
enter on his defence and adduce evidence in support thereof. No oral
or documentary evidence was adduced by the accused.

5. On a consideration of the oral and documentary evidence and after

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 hearing both sides, the trial court by the impugned judgment found
the accused guilty of the offence punishable under Section 302 IPC
and hence sentenced him to undergo imprisonment for life and to a
fine of ‚¹25,000/-and in default of payment of fine to undergo a
further period of six months. It has also been directed that if the fine
amount is realised, it shall be paid to the children of the deceased
under Section 357(1) Cr.P.C.

6 . The only point that arises for consideration in this appeal is

whether the conviction entered and sentence passed against the
accused by the trial court is sustainable or not.

7. Heard Sri. Krishnanlal S, the learned State Brief for the appellant
and Smt. Sheeba Thomas, the learned Public Prosecutor.

8. The prosecution case is that Sindhu died due to combined effects of

smothering and constriction force applied to her neck. To substantiate
the same, the prosecution relies on Ext.P2 inquest report; Ext.P5
postmortem report and the testimony of the PW4, PW12 and PW19.
PW19, the then Sub Inspector, Gandhi Nagar Police Station stated that
in the presence of the Scientific Assistant and the members of the
Panchayat, inquest was conducted and Ext.P2 inquest report prepared.
PW4 admits that he is an attestor to Ext.P4 inquest report. PW12,
Associate Professor, Forensic Medicine, Medical College Hospital,
Kottayam deposed that on 28/02/2015 at 12:15 p.m, he had conducted
postmortem examination on the body of a female named, Sindhu. The
injuries noted by him are-

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 "Injuries (Ante-Mortem)

1. Contusion 2x1x0.2cm on right side of front of scalp 2cm outer

to midline and 2cm above eyebrow.

2. Contusion 1x0.5x0.2cm on the left side of scalp 3cm above

eyebrow and 2m outer to midline.

3 . Multiple linear abrasion varying in size from 0.5cm to 2cm

over and area 2x1cm on the right side of face, its upper extent
1cm below malar prominence.

4. Curved abrasion 3cm long oblique on the right side of face,

with its convexity inward its upper end 2.5cm in front of ear
lobule.

5. Multiple curved abrasions (nail mark) varying in sizes from

0.5x0.2cm to 1x0.3cm over an area 3x1cm involving left side of
face, 2.5 outer to angle of mouth and 1cm below malar
prominence.

6. Abrasion 3x1.5cm involving left side of face overlying malar

eminence 2.5cm outer to alae of nose.

7. Contusion 1x0.5cmx0.3cm on the inner aspect of left side of

lower lip corresponding canine tooth.

8. Abrasion 1x0.5cm oblique on the front of chin.

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 9. Abrasion 1x0.5cm on the left side of front of chin 1cm below
lower lip margin.

10. Multiple curved abrasion varying in sizes from 0.5x0.3 to

1x0.3cm over an area 3.5x2cm involving left side of face,
overlying jawbone its inner extent 2.5cm outer to midline.

11. Curved abrasion 0.5x0.1cm with its convexity inwards (nail

mark) on the right side of front of neck, its upper end 5cm outer
to midline and 2cm below jawbone. Flap dissection of neck was
done under bloodless field. The subcutaneous tissue
corresponding to the injury (No. 10) showed infiltration with
blood, adjoining sub mandibular gland. The lower half of left
sternomastoid muscle showed contusion involving its full
thickness. Petechaeal haemorrahages seen in epiglottis and
inner aspect of larynx below vocal cord.

12. Contusion 1.5x0.5cm on the front of right shoulder 10cm

outer to root of neck.

1 3 . Contusion 1x0.5x0.5cm on the front of right chest 2cm

below top of shoulder.

14. Abrasion 1.5x1cm on the back of right fore-arm 9cm below

elbow."

The postmortem certificate has been marked as Ext.P5. The opinion as

to the cause of death is-"due to the combined effect of smothering and

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 constriction."

9 . The aforesaid evidence proves that death of Sindhu was not a

natural one and that it was in fact a case of homicide.

1 0 . There are no eye witness to the incident in this case. The

prosecution relies on circumstantial evidence and the last seen
together theory to prove the case. The fact that deceased Sindhu and
the accused were in a live-in-relationship is established by the
testimony of PW2, PW3 and PW22. PWs 2 and 3 are none other than
the brother and the mother respectively of the deceased. PW2 deposed
that his sister Sindhu was married to one Manoj. About six years back,
both the legs of Manoj had to be amputated. At that time, Sindhu got
acquainted with the accused, with whom she later on eloped. PW3, the
mother of Sindhu also substantiates this aspect of the prosecution
case. PW22, a supplier of Saraswathy Hotel, Medical College Hospital,
Kottayam deposed that both the accused and Sindhu used to come to
his hotel for buying food. They told him that they were husband and
wife. According to PW22, they were engaged in selling scrap and used
to spent their nights in the tapioca plantation nearby. The last time he
had seen them was on 26/02/2015 at about 09.00 p.m, when they had
come to the hotel for purchasing two packets of food.

10.1. PW5 has been examined to prove that the accused and the
deceased used to spent their nights in his tapioca plantation, which
property he had taken on lease from the Government. PW5 deposed
that when he used to go to the property during the early hours of the

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 day, he used to see the accused and Sindhu there. They used to tell
him that they do not have a roof above their head and hence they were
spending their nights in the plantation. He never objected to the same
as he thought that there would be somebody to guard his plantation.
On 27/02/2015, he came to know that Sindhu had died. Thereafter,
the accused was not to be seen. In the cross examination, he stated
that during nights, he had not gone to the property and checked. But
he did see signs which indicated that they had spent their night in the
plantation. He used to see empty bottles of liquor and glass in the
plantation.

10.2. The fact that the accused and Sindhu were making out their
livelihood by collecting and selling scrap is proved through the
testimony of PW9 and PW10. Therefore the aforesaid evidence would
establish the prosecution case that the accused and the deceased were
infact living together; that they were engaged in collecting and selling
scrap for their livelihood and that they used to spent their nights in the
tapioca plantation of PW5.

1 1 . Now coming to the last seen together theory advanced by the

prosecution. PW6, the owner of a hotel, deposed that after 08:00 p.m,
the accused and a woman who appeared to be the wife of the accused
used to come to his hotel for purchasing food. 26/02/2015 was the last
day on which they had come to buy the food. He has not seen them
thereafter. Later on, he came to know that the woman died.

11.1. PW7, a shop owner, deposed that the accused accompanied by a

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 woman used to come to his shop for buying water, soda and glass. He
had seen them for the last time on 26/02/2015 before 09:00 p.m. On
that day, they had purchased half litre of soda and MO.4 disposable
glass. Later on he heard that the woman died.

11.2. PW22, supplier in the hotel of PW6 deposed that the couple had
on 26/02/2015 at about 09:00 p.m come to purchase food parcels.

11.3. As rightly pointed out by the trial Judge, the last seen theory
comes into play where the time gap between the point of time when the
accused and the deceased were last seen alive and when the deceased
is found dead is so small that the possibility of any person other than
th e accused being the author of the crime become impossible. (see
Ajith Singh Harnam Singh v. State of Maharashtra, 2014 (4) KLT
S.N.70). Since the accused was last seen with deceased Sindhu, it is for
him to properly explain how the incident happened .

1 2 . As per the prosecution case, the accused absconded after the

incident. This is established by the testimony of PWs. 6, 7 and 22. The
accused when questioned under Section 313 Cr.P.C. stated that he was
at his house in Kalamassery during the relevant time. But this defense
version is proved wrong by the testimony of the prosecution witnesses
that he was seen on the night of 26/02/2015 with the deceased. The
conduct of the accused in absconding after the incident as pointed out
is yet another factor in favour of the prosecution.

13. Another incriminating circumstance pointed out is the presence of

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 fingerprint of the accused on MO.2 bottle that was seized from the
scene of occurrence. PW19, the officer who conducted the inquest
deposed that he had seized a liquor bottle having a capacity of 1000
ml. of jawan deluxe company; a water bottle having a capacity of 2 ltrs.
which contained water up to its ¾th level; a bill dated 26/02/2015 of
the Beverages Corporation, Nagampadam; a big shopper bag
containing three shirts and a dhothi, which are MO.1 to MO.7 series.
They were seized as per Ext.P12 seizure mahazar. In his presence
PW16, Scientific Assistant, had collected blood stained soil from the
place of occurrence. Chance prints were taken from the bottle. MO.1
and MO.2 bottles were sent for examination to the Fingerprint Bureau.
His investigation revealed the commission of the offence under Section
302 IPC and hence a report was submitted before the Sub Divisional
Magistrate, before whom the FIR under Section 174 Cr.P.C. had been
submitted.

14. PW23, the then Circle Inspector, Kottayam East police Station who
took over the investigation on 01/03/2015 deposed that on
02/03/2015 he had arrested the accused. He prepared Ext.P3 scene
mahazar and seized MO.9 plastic jar, MO.4 disposable glass and
MO.10 series plastic sacks. When he arrested the accused, the latter
had injuries on his body. The accused was taken to the doctor who
examined him and issued Ext.P6 certificate. The fingerprint of the
accused was taken and sent to the Fingerprint Bureau. The report of
the fingerprint expert is Ext.P18.

15. PW17, Testor Inspector, Single Digit Fingerprint Bureau, Kottayam

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 deposed that on 27/02/2015, as per information received from the
Gandhi Nagar police Station, he had deputed PW21, the Fingerprint
Expert of his office to inspect the articles, namely, the mineral water
bottle and liquor bottle that were kept in the Gandhi Nagar Police
Station relating to the present crime. PW21 had collected three chance
fingerprints and two palm portions from the aforesaid articles which
were photographed by the police photographer. PW21, the Fingerprint
Expert concerned, deposed that she had gone to the Gandhi Nagar
police station and had developed three chance prints and two palm
portions from a mineral water bottle and liquor bottle involved in the
present crime. The chance prints were collected and taken to the
Fingerprint Bureau, Kottayam for examination. On detailed
examination of the chance prints, it was found that one of the chance
print was identical with the right middle finger impression of the
accused. PW21 further deposed that, in order to establish the identity,
she has marked eight identical ridge characteristics in the enlarged
photograph of the identified chance print noted as "G.5" and in the
photograph of specimen right finger impression of the accused marked
as "S". The report has been marked as Ext.P15. In the cross
examination, she deposed that the chance prints were taken from the
bottles kept in the Gandhi Nagar police station.

16. It is by now well settled that obtaining fingerprints for the purpose
of investigation does not amount to objectionable testimonial
compulsion under Article 20 (3) of the Constitution of India. In order
that a testimony by an accused person may be said to have been self

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 incriminatory, the compulsion of which comes within the prohibition
of the constitutional provision, it must be of such a character that by
itself it should have the tendency of incriminating the accused, if not
also of actually doing so. In other words, it should be a statement
which makes the case against the accused person at least probable,
considered by itself. A specimen handwriting or signature or finger
impressions by themselves are no testimony at all, being wholly
innocuous because they are unchangeable except in rare cases where
the ridges of the fingers or the style of writing have been tampered
with. They are only materials for comparison in order to lend
assurance to the Court that its inference based on other pieces of
evidence is reliable. They are neither oral nor documentary evidence
but belong to the third category of material evidence which is outside
the limit of testimony. (State of Bombay v. Kathi Kalu Oghad,
MANU/SC/0134/1961 : AIR 1961 SC 1808: 1961 KHC 343)

1 7 . An investigating officer is certainly and absolutely justified in

obtaining the finger impressions of a person arrested by him. There
can be no doubt on the proposition of law at all. This is permitted
under Sections 4 and 5 of the Identification of Prisoners Act, 1920.
Section 4 says that any person who has been arrested in connection
with an offence punishable with rigorous imprisonment for a term of
one year or more shall, if so required by a police officer allow his
measurements to be taken in the prescribed manner. Section 5 deals
with the power of a magistrate to order a person to be measured or
photographed. It says that if a magistrate is satisfied that for the

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 purposes of any investigation or proceeding under Cr.P.C., it is
expedient to direct any person to allow his measurements or
photograph to be taken, he may make an order to that effect.
Measurements under Section 2(a) of the said Act includes finger
impressions. Section 5 of the Act does not control, guide or restrict the
power of the investigating officer to take finger impressions of an
arrestee who has been arrested in connection with an offence
punishable with rigorous imprisonment for a term of one year or
upwards. It is not necessary for the police officers to seek the orders of
the Magistrate for taking the fingerprints. It is only if the arrested
person refuses to co-operate, then the investigating officer can make
an application under Section 5 and under judicial orders ensure that
the finger impressions are taken. (See Dasan @ Viswambaran v. State
of Kerala, MANU/KE/2924/2010). Therefore the argument that as the
fingerprint of the accused had been taken by the police and sent for
examination, it is inadmissible in evidence, is only liable to be rejected.

18. The aforesaid evidence shows that the bottle seized from the scene
of crime did contain the finger print of the accused. The accused has
no explanation for the same except a bald denial of the entire
prosecution case. It is true that the burden of proof is always on the
prosecution and the burden never shifts to the accused. The accused
has also the right to remain silent. But when incriminating evidence
comes against him, it is his duty to explain the same. Added to this is
the admission made by the accused to PW13, the doctor, who had
examined him after his arrest.

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 18.1. PW13, Assistant Professor, Medical College Hospital Kottayam
deposed that on 03/03/2015 at 10:00 a.m, he had examined the
accused in this case. Some injuries were seen on the body of the
accused. He noted the injuries and recorded the cause of injuries
stated by the accused in Ext.P6 wound certificate issued by him. It
reads-

This statement made by the accused to the doctor amounts to an

admission as contemplated under Section 21 of the Evidence Act and
admissible in evidence (See Kanda Padayachi v. State of Tamil Nadu,
MANU/SC/0126/1971 : 1971 KHC 596). In addition to this, we refer to
the testimony of PW8, Addl. Sub Inspector, Gandhi Nagar police
station. PW8 deposed that on 26/02/2015 he was on night patrol duty.
On the said day at about 11:30 p.m, he had seen the accused in the
veranda of a shopping complex near mudiyoorkkara mosque and had
directed the accused to go to his residence. Therefore, all these
incriminating circumstances establish that the deceased was last seen
with the accused on the fateful day.

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 1 9 . After the close of the prosecution evidence, the accused was
questioned under Section 313 Cr.P.C. He stated that he is residing at
Nagampadam in Kottayam and that he does not know the deceased
Sindhu. In the case on hand, the accused when questioned under
Section 313 has completely denied the prosecution case. He has even
gone to the extent of denying any acquaintance with the deceased,
which has been proved wrong by the evidence on record. Sindhu with
the knowledge and consent of Manoj, her husband, was residing on
rent in Thottathil building and was engaged in sale of liquor and
involved in playing cards He had heard that Sindhu used to
go to the plantation for selling liquor. He does not sell scrap. He is a
head load worker as well as an autorickshaw driver. CW7 Sreekumar
used to live with Sindhu and engage in sale of scrap and timber. The
scene of occurrence is the place where CW7 and Sindhu used to sleep
guarding their timber. It was the dhothi and shirts of CW7 that had
been seized by the police from the place of occurrence. CW7 has made
quite a lot of money by the sale of timber and scrap. CW7, a leader of
quotation gangs, is politically quite influential. Hence the reason why
no investigation was conducted by the police against CW7 inspite of
the fact that the dress of CW7 had been seized from the scene of crime.
CW7 has not even been examined before the court because, if
examined, the truth would come out. He heard that it was CW7, who
was last seen with Sindhu. He had heard from the police that Sindhu
died due to excessive consumption of alcohol. He had no connection
whatsoever with Sindhu. He had never spent nights in the tapioca
plantation. He is innocent of the offence alleged against him.

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 20. The 313 statement of the accused is seen recorded by the trial
court on 21/02/2017. In the light of the stand taken by the accused, it
appears that the prosecution sought for re-opening of the evidence.
CW7 is seen to have been examined before the trial court as PW24 on
22/02/2017. PW24 deposed that during the year 2015, he was into
timber business. He was residing in a rented house at the place by
name, Parapparambu, Ettumanoor. In the second month of 2015, he
had purchased timber on auction from the Medical College Hospital.
The timber was stored by the side of the road. During nights, he used
to go and check the timber. On 26/02/2015 at 10:00 p.m, he had gone
to check the timber. On the said day he saw Sindhu and the accused
walking in front of him going towards the tapioca plantation. He
identified the accused before the Court. PW24 further deposed that he
proceeded to the place where his timber had been kept, checked the
same and on his return, he heard a commotion, abusive words being
called and a woman crying. The next day by 05:30 p.m, he came to
know of the death of Sindhu. The defense version stated by the
accused in his 313 statement is not seen put to PW24 when he was
cross examined. When PW24 was cross examined the accused has no
case as stated in his 313 statement. We find no reason(s) to disbelieve
the version of PW24, which has not been discredited in any way.

21. In the case on hand, the accused when questioned under Section
313 has completely denied the prosecution case. He has even gone to
the extent of denying any acquaintance with the deceased, which has

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 been proved wrong by the evidence on record. The object of S. 313 of
the Code is to establish a direct dialogue between the Court and the
accused (Samsul Haque v. State of Assam, MANU/SC/1159/2019 :
2019 KHC 6851: AIR 2019 SC 4163). The provisions of S.313 are for
the benefit of the accused and are there to give the accused an
opportunity to explain the "circumstances appearing in the evidence
against him". These provisions are not meant to nail the accused to his
disadvantage but are meant for his benefit (Ganesh Gogoi v. State of
Assam, MANU/SC/1119/2009 : 2009 KHC 4731 : AIR 2009 SC 2955).

22. It is obligatory on the part of the accused while being examined

under S.313 Cr.P.C. to furnish some explanation with respect to the
incriminating circumstances associated with him, and the Court must
take note of such explanation even in a case of circumstantial evidence,
to decide as to whether or not, the chain of circumstances is complete.
(Dr. Sunil Clifford Daniel v. State of Punjab, MANU/SC/0740/2012 :
(2012) 11 SCC 205). When the attention of the accused is drawn to
such circumstances that inculpate him in relation to the commission of
the crime, and he fails to offer an appropriate explanation or gives a
false answer with respect to the same, the said act may be counted as
providing a missing link for completing the chain of circumstances
(State of Maharashtra v. Suresh, MANU/SC/0765/1999 : (2000) 1 SCC
471; Govidaraju S. v. State of Karnataka, MANU/SC/0875/2013 :
(2013) 15 SCC 315).

2 3 . As held in Vasa Chandrasekhar Rao v. Ponna Satyanarayana,

MANU/SC/0394/2000 : AIR 2000 SC 2138, where the prosecution

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 wants to prove the guilt of the accused by circumstantial evidence, it is
necessary to establish that the circumstances from which a conclusion
is drawn, should be fully proved; the circumstances should be
conclusive in nature; all the facts so established, should be consistent
only with the hypothesis of guilt and inconsistent with innocence; and
the circumstances should exclude the possibility of guilt of any person
other than the accused. To justify an inference of guilt, the
circumstances from which such an inference is sought to be drawn,
must be incompatible with the innocence of the accused. The
cumulative effect of the circumstances must be such as to negate the
innocence of the accused and to bring home the offence beyond any
reasonable doubt. Where the accused on being asked, offers no
explanation or the explanation offered is found to be false, then that
itself forms an additional link in the chain of circumstances to point
out the guilt.

24. The evidence on record does establish the prosecution case that
the deceased was last seen together with the accused. This coupled
with the other circumstantial evidence on record and the explanation
offered by the accused turning out to be false, establishes the guilt of
the accused.

Therefore, the trial court was right in concluding that the accused did
commit the murder of Sindhu. We find no infirmity in the impugned
judgment calling for an interference.

In the result, the appeal is dismissed.

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 Interlocutory applications, if any pending, shall stand closed.

© Manupatra Information Solutions Pvt. Ltd.

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