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Sec. 498 A, 304 B and 306 I.P.C. – sec.116 A of Evidence Act – Trial court acquitted as there are material improvements in evidence and acquitted – High court convicted the husband under sec. 306 I.P.C. with the help of sec.116 A of Evidence Act – when wife and child died as the wife plunged in to river with a child within 7 years of marriage – burden lies on husband why she committed suicide when the prosecution proved harassment = Ramesh Vithal Patil …Appellant Versus State of Karnataka and Ors. …Respondents= 2014 (March.Part) http://judis.nic.in/supremecourt/filename=41370

Sec. 498 A, 304 B and 306 I.P.C. – sec.116 A of Evidence Act –  Trial court acquitted as there are material improvements in evidence and acquitted – High court convicted the husband under sec. 306 I.P.C. with the help of sec.116 A of Evidence Act – when wife and child died as the wife plunged in to river with a child within 7 years of marriage – burden lies on husband why she committed suicide when the prosecution proved harassment  – Apex court confirmed the High court order = 

The trial court in the circumstances  held  that  demand

was not proved and that it  cannot  be  said  that  the  deceased  committed

suicide because she was ill-treated by the accused.=

The  acquittal  of  the

appellant of the offence under Section 304-B  of  the  IPC  was  set  aside.

Instead he was convicted for offence punishable under  Section  306  of  the

IPC and sentenced to undergo rigorous imprisonment  for  three  years.   The

acquittal of the other accused was confirmed.   

The  High  Court  held  that

they must be given benefit of doubt.  

Being  aggrieved  by  his  conviction, the appellant has approached this Court.=

 

Ganpat   v. State of Haryana &  Ors.[8],  this  Court  reformulated

the principles as under:

 

           “(i) There is no limitation on the part of the  appellate  court

           to review the evidence upon which  the  order  of  acquittal  is

           founded and to come to its own conclusion.

 

 

           (ii) The appellate court  can  also  review  the  trial  court’s

           conclusion with respect to both facts and law.

 

 

           (iii) While dealing with the appeal preferred by the  State,  it

           is the duty  of  the  appellate  court  to  marshal  the  entire

           evidence on record and by giving cogent and adequate reasons may

           set aside the judgment of acquittal.

 

 

           (iv) An order of acquittal is to be interfered  with  only  when

           there are “compelling and substantial reasons” for doing so.  If

           the order is “clearly unreasonable”, it is a  compelling  reason

           for interference.

 

 

           (v) When the trial court has ignored the evidence or misread the

           material evidence or has ignored material documents  like  dying

           declaration/report of  ballistic  experts,  etc.  the  appellate

           court is competent to reverse the decision of  the  trial  court

           depending on the materials placed. (Vide Madan Lal v.  State  of

           J&K(1997) 7 SCC 677, Ghurey Lal v. State of U.P. (2008)  10  SCC

           450, Chandra Mohan Tiwari v. State of M.P. (1992) 2 SCC 105  and

           Jaswant Singh v. State of Haryana(2000) 4 SCC 484.” =

When his wife and small child had left  the  house  and

were not traceable the appellant was expected to move heaven  and  earth  to

trace them.  As to when and why the deceased left  the  house  and  how  she

died in suspicious circumstances was within the  special  knowledge  of  the

appellant.  When the prosecution established  facts  from  which  reasonable

inference can be drawn that the deceased committed  suicide,  the  appellant

should have, by virtue of  his  special  knowledge  regarding  those  facts,

offered an explanation which might drive  the  court  to  draw  a  different

inference.  The burden of proving those facts was on the  appellant  as  per

Section 106 of the Evidence Act but the appellant  has  not  discharged  the

same  leading  to  an  adverse  inference  being  drawn  against  him  (See:

Tulshiram Sahadu Suryawanshi & Anr.    v.   State  of  Maharashtra[9]    and

Babu  alias Balasubramaniam)=

Applying the above principles, we  have  no  hesitation  in  recording

that the trial court’s order acquitting the appellant is replete with  gross

errors of facts resulting in miscarriage of justice.   

The  High  Court  has

rightly held that the other members of the appellant’s family can  be  given

benefit of doubt, but the appellant cannot escape the liability.  

We  concur with the High Court.   We see no  reason  to  interfere  with  the  impugned

judgment of the High Court.  

The  appeal  is,  therefore,  dismissed.    

The appellant is on bail.  He is directed  to  surrender  forthwith.   His  bail

bond stands cancelled.

2014 (March.Part) http://judis.nic.in/supremecourt/filename=41370
RANJANA PRAKASH DESAI, MADAN B. LOKUR

 

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 56 OF 2006
Ramesh Vithal Patil …Appellant
Versus
State of Karnataka and Ors. …Respondents

 

J U D G M E N T

 

(SMT.) RANJANA PRAKASH DESAI, J.

 

1. The appellant-accused no.1 was tried along with five others (original
accused nos. 2 to 6 respectively) by the III Additional Sessions Judge,
Belgaum for offences punishable under Sections 498-A, 304-B read with
Section 34 of the IPC.

2. Accused no.1 is the husband of deceased Hira alias Vaishali (‘the
deceased’, for convenience). Accused no. 2 is the father of the appellant,
accused nos. 3 & 4 are the brothers of the appellant, accused no. 5 is the
wife of accused no. 2 and accused no. 6 is the wife of accused no. 3.

3. The appellant was married to the deceased on 27/06/1985. According
to the prosecution, the appellant and other accused subjected the deceased
to cruelty in their house at Kasaba Nandgad, Taluka Khanapur, District
Belgaum. They asked her to bring five tolas of gold and Rs.10,000/- from
her parents. On account of this unbearable cruelty, on 10/12/1987 the
deceased committed suicide by jumping in the Malaprabha River near Khanapur
along with her ten month old daughter Jyoti.

4. In support of its case the prosecution examined 11 witnesses. The
important witnesses who unfolded the prosecution story are PW1-Bhavakanna
and PW2-Balram, elder brothers of the deceased and PW5-Babita, wife of PW2.
PW4-Dr. Ishwarappa, the Medical Officer attached to District Civil
Hospital at Belgaum, conducted post-mortem examination of the deceased. He
opined that death of the deceased was due to asphyxia on account of
drowning. The accused pleaded not guilty to the charge.

5. The trial court came to a conclusion that the prosecution had failed
to prove its case beyond reasonable doubt and acquitted the accused. The
trial court observed that while in court PW1 and PW2 stated that all the
accused were harassing the deceased and asking her to bring 5 tolas of gold
and cash of Rs. 10,000/- from her parents; that the deceased was made to
work in the house for the whole day; that the deceased was not given food
to eat and that on her last visit to her maternal house the deceased had
told her brothers that if the demand of her in-laws is not met she would be
murdered, the FIR lodged by PW1 does not contain these allegations. In the
FIR there are vague allegations about the demand. PW5, the wife of PW2 has
not referred to the specific amount and quantum of gold allegedly demanded
by the in-laws of the deceased. She has not even referred to the last visit
of the deceased. The trial court was also of the view that since the
accused belonged to a rich family it is inconceivable that they would make
a demand for money and gold. The trial court was further of the view that
since the evidence on record established that the deceased was allowed to
visit her maternal home and that the appellant and his father visited her
maternal home, the allegation that the deceased was ill-treated in the
house is not true. The trial court in the circumstances held that demand
was not proved and that it cannot be said that the deceased committed
suicide because she was ill-treated by the accused.

6. Being aggrieved by the judgment of acquittal, the State of Karnataka
preferred an appeal before the Karnataka High Court. The High Court held
that PW2 had stated in his evidence that the appellant and the deceased
were staying in another house belonging to the accused. The evidence also
shows that effort was made by PWs.1 and 2 to open that house to find out
whether the deceased was in that house. The High Court observed that
therefore the possibility of the deceased staying with the appellant in
that house at least for major part of the day cannot be ruled out and hence
though the other accused can be given benefit of doubt, the appellant
cannot escape the liability. The High Court observed that it is more so
because the appellant kept mum after the disappearance of the deceased for
a long time. The High Court relied upon evidence of PWs.1, 2 & 5 and by
the impugned judgment partly allowed the appeal. The acquittal of the
appellant of the offence under Section 304-B of the IPC was set aside.
Instead he was convicted for offence punishable under Section 306 of the
IPC and sentenced to undergo rigorous imprisonment for three years. The
acquittal of the other accused was confirmed. The High Court held that
they must be given benefit of doubt. Being aggrieved by his conviction,
the appellant has approached this Court.

7. We have heard at some length Mr. P. Vishwanath Shetty, learned
counsel appearing for the appellant. He submitted that the High Court
erred in disturbing the acquittal of the appellant. He submitted that the
trial court’s view was a reasonably possible view. It was not a perverse
view warranting interference from the High Court. In support of this
submission counsel relied on Shyamal Saha & Anr. v. State of West
Bengal[1]. Counsel submitted that all the witnesses examined by the
prosecution are interested witnesses and, therefore, the High Court ought
not to have placed reliance on them. Their evidence is not corroborated
by the other evidence on record. Counsel submitted that there is nothing
on record to suggest that the appellant demanded dowry, in fact, the High
Court has acquitted the appellant of the offence punishable under Section
304-B of the IPC. There is no cogent evidence to establish that the
deceased was subjected to cruelty by the appellant which led her to commit
suicide. Counsel pointed out that the evidence of PW1, brother of the
deceased, shows that the deceased was regularly visiting her parents’
house. Therefore, cruelty or ill-treatment is not established. Counsel
submitted that there is a vague allegation of demand for money and gold
ornaments in the FIR. The demand is not specified in the complaint.
Whereas PW1 and PW2 the brothers of the deceased have tried to give
particulars of the demand PW5, the wife of PW2, has omitted to do so. The
prosecution witnesses have improved their version in court. There is no
evidence to establish that the appellant abetted the suicide of the
deceased. In the circumstances, the impugned order deserves to be set
aside.

8. Mr. K. Parameshwar, learned counsel for the State of Karnataka, on
the other hand, submitted that the prosecution has proved it’s case beyond
reasonable doubt. The brothers and sister-in-law of the deceased have
clearly stated that she was subjected to cruelty. Moreover, the deceased
was staying in the matrimonial house. She was in the custody of the
appellant. The bodies of the deceased and her daughter Jyoti were found in
Malaprabha river near Khanapur. It was incumbent upon the appellant to
explain how the deceased and her daughter Jyoti died in suspicious
circumstances. Counsel submitted that Section 106 of the Indian Evidence
Act, 1872 (‘Evidence Act’, for short) is clearly attracted to this case.
In support of his submissions counsel relied on K. Prema S. Rao & Anr. v.
Yadla Srinivasa Rao & Ors.[2], Thanu Ram v. State of Madhya Pradesh[3],
Narwinder Singh v. State of Punjab[4], Rakhal Devnath v. State of West
of Bengal[5], Gurnaib Singh v. State of Punjab[6] and Babu @
Balasubramaniam & Anr. v. State of Tamil Nadu[7].

9. Since we are dealing with a case involving reversal of acquittal
order by the High Court, it is necessary to see the principles laid down by
this Court in that behalf. After adverting to several judgments of this
court in Ganpat v. State of Haryana & Ors.[8], this Court reformulated
the principles as under:
“(i) There is no limitation on the part of the appellate court
to review the evidence upon which the order of acquittal is
founded and to come to its own conclusion.
(ii) The appellate court can also review the trial court’s
conclusion with respect to both facts and law.
(iii) While dealing with the appeal preferred by the State, it
is the duty of the appellate court to marshal the entire
evidence on record and by giving cogent and adequate reasons may
set aside the judgment of acquittal.
(iv) An order of acquittal is to be interfered with only when
there are “compelling and substantial reasons” for doing so. If
the order is “clearly unreasonable”, it is a compelling reason
for interference.
(v) When the trial court has ignored the evidence or misread the
material evidence or has ignored material documents like dying
declaration/report of ballistic experts, etc. the appellate
court is competent to reverse the decision of the trial court
depending on the materials placed. (Vide Madan Lal v. State of
J&K(1997) 7 SCC 677, Ghurey Lal v. State of U.P. (2008) 10 SCC
450, Chandra Mohan Tiwari v. State of M.P. (1992) 2 SCC 105 and
Jaswant Singh v. State of Haryana(2000) 4 SCC 484.”

 
10. In Shyamal Saha this Court referred to Ganpat and observed that it
is the obligation of the High Court to consider and identify the error in
the decision of the trial court and then decide whether the error is gross
enough to warrant interference. The High Court is not expected merely to
substitute its opinion for that of the trial court because it has power to
do so – it has to correct an error of law or fact significant enough to
necessitate overturning the verdict of the trial court. This Court further
observed that the High Court has to exercise its discretion keeping in mind
the acquittal of the accused and the rights of the victim (who may or may
not be before it). We shall proceed to deal with this case keeping these
principles in mind.

11. There is no dispute about the fact that the bodies of the deceased
and her daughter Jyoti were recovered from Malaprabha river near Khanapur
on 11/12/1987. In the complaint dated 11/12/1987 PW1 Bhavakanna stated
that the deceased was treated well in her matrimonial house for 4 to 5
months after her marriage, thereafter, she was subjected to harassment.
She was asked to bring money and gold from her parents for the business of
her husband. It is further stated that during her visits to her parents’
house the deceased used to complain about the harassment meted out to her.
They used to console her and send her back. It is further stated that
about 15 days back when the deceased had visited their house she complained
about the demand for money and gold and the harassment meted out to her.
The complaint further goes on to say that on 10/12/1987 the appellant came
to the village and told them that the deceased had left their house along
with her daughter Jyoti. The appellant enquired whether she was in their
house. All of them rushed to the appellant’s house where they were ill-
treated and abused. They started searching for the deceased. They found
the dead bodies of the deceased and her daughter Jyoti lying in Malaprabha
river. The complaint ends with the apprehension expressed by PW1 that
there was some foul-play.

12. In his evidence PW1-Bhavakanna reiterated the same story. He stated
that during marriage they had given 2½ tolas gold Mangalsutra and 2½ tolas
gold Laxmihar to the deceased. About 4 to 5 months after her marriage, the
appellant and the members of his family started harassing her. They asked
her to get 5 tolas of gold and cash of Rs.10,000/- from her parents house.
They were making the deceased work for the whole day. They were not giving
her food. She used to convey her woes to her brothers whenever she
visited their house. Even after birth of the child, the appellant
continued to ill-treat her. Fifteen days prior to her death, the deceased
had visited her parents house and told them that if 5 tolas of gold and
cash of Rs.10,000/- were not given to her in-laws she would be murdered.
She refused to go to her matrimonial house, but, they told her that after
the draught is over they may think of meeting the demands of the appellant.
After consoling her they took her to her matrimonial house and left her
there. On 10/12/1987 the appellant came to their house and asked them
whether the deceased had come there. The appellant told them that she had
left the house with the child on 9/12/1987. Thereafter, he along with his
brother PW2-Balram went to Nandgad. They searched for the deceased but
could not find her. On 11/12/1987 they again went in search of the
deceased and her daughter Jyoti. They found their bodies lying in
Malaprabha river. PW1 then, went to Khanapur police station and lodged
the FIR, Ex.P-1.

13. In the cross-examination PW1 has stuck to the same story. This
witness comes across as a truthful witness. He admitted that the appellant
is a leading merchant in Nandgad. He admitted that for her first delivery
the deceased came to their house and after the child was born the appellant
and her father-in-law came to their house to see the child. He also
admitted that the deceased had been to their house to see PW-2 Balram, who
was sick. It is argued that the evidence of this witness shows that the
relations between both the families were cordial. It is submitted that the
appellant is a rich merchant and, therefore, he could not have made any
demand for money. It is not possible for us to accept this submission.
It would be wrong to say that the poor are avaricious and not the rich.
Many a murder are committed by the rich out of greed for money. Besides,
merely because the appellant and his father visited the maternal house of
the deceased it cannot be presumed that both the families maintained
cordial relationship and, therefore, the deceased must not have been ill-
treated. The trial court has wrongly come to this conclusion, despite
there being cogent evidence on record to establish the demand. PW1
Bhavakanna’s evidence establishes this case of the prosecution. His
evidence becomes more acceptable because of the honesty displayed by him.
There is no reason to disbelieve his statement that whenever the deceased
used to come to their house she used to tell them about the demand for
money and gold and the harassment meted out to her in her matrimonial home
in that connection. It is argued that, whereas in the evidence, PW1 stated
that the appellant made demand for 5 tolas of gold and cash of Rs.10,000/-,
it is not so mentioned in the complaint. This is hardly a significant
omission. The fact that the deceased was asked to bring money and gold
from her parents’ house and she was harassed for that is stated in the
complaint. The specific details of the demand are given in the evidence.
PW1 must have been in a great shock when he saw the dead bodies of his
sister and niece lying in Malprabha river. He could not have therefore
given details of the demand made by the appellant and other particulars of
harassment to which the deceased was subjected, in his complaint. In any
case, it cannot be said that he has completely omitted to say anything
about the demand. The trial court wrongly gave importance to absence of
such details in the FIR. It is not necessary for us to repeat that the FIR
is not expected to be a treatise.

14. PW2-Balram, the other brother of the deceased, has supported PW1-
Bhavakanna. PW2 explained why their family had not disclosed the ill-
treatment meted out to the deceased to anyone. He stated that they felt
that if these facts are disclosed to people, the ill-treatment of the
deceased may increase. This reaction is normal and the fear appears to be
genuine. He also stated that the deceased was not given food in the house
and she was made to work for the whole day. Both PW1 and PW2 stated that
the deceased was asked to bring money and gold from her parents’ house and
was given dire threats. Both these witnesses have been cross-examined at
length. The cross-examiner could not make any dent in their evidence. PW5
Babita wife of PW2 Balram has supported PW1 and PW2. PW5’s evidence cannot
be overlooked because she has not verbatim repeated the version of PW1 and
PW2. Being wife of PW2 her presence in the house is natural and her
evidence can be safely relied upon. In our opinion, on the basis of
evidence of PWs 1, 2 and 5, the High Court has rightly concluded that the
deceased committed suicide and the suicide was abetted by the appellant.

15. It is true that the appellant was not charged under Section 306 of
the IPC. The charge was under Section 304-B of the IPC. It was, however,
perfectly legal for the High Court to convict him for offence punishable
under Section 306 of the IPC. In this connection, we may usefully refer to
Narwinder Singh. In that case the accused was charged under Section 304-B
of the IPC. The death had occurred within seven years of the marriage.
The trial court convicted the accused for an offence punishable under
Section 304-B of the IPC. Upon reconsideration of the entire evidence, the
High Court came to the conclusion that the deceased had not committed
suicide on account of demand for dowry, but, due to harassment caused by
the husband in particular. The High Court acquitted the parents of the
accused and converted the conviction of the accused from one under Section
304-B of the IPC to Section 306 of the IPC. This Court dismissed the
appeal filed by the accused. It was observed that it is a settled
proposition of law that mere omission or defect in framing charge would not
disable the court from convicting the accused for the offence which has
been found to be proved on the basis of the evidence on record. In such
circumstances, the matter would fall within the purview of Sections 221(1)
and (2) of the Code of Criminal Procedure, 1973. The relevant observations
of this Court could be quoted:
“21. The High Court upon meticulous scrutiny of the entire evidence on
record rightly concluded that there was no evidence to indicate the
commission of offence under Section 304-B IPC. It was also observed
that the deceased had committed suicide due to harassment meted out to
her by the appellant but there was no evidence on record to suggest
that such harassment or cruelty was made in connection to any dowry
demands. Thus, cruelty or harassment sans any dowry demands which
drives the wife to commit suicide attracts the offence of “abetment of
suicide” under Section 306 IPC and not Section 304-B IPC which defines
the offence and punishment for “dowry death”.”

 

16. Moreover, admittedly the deceased committed suicide within a period
of seven years from the date of her marriage. Section 113-A of the
Evidence Act is, therefore, clearly attracted to this case. Presumption
contemplated therein must spring in action. This provision was introduced
by Criminal Law Second Amendment Act, 1983 to resolve the difficulty of
proof where married women are forced to commit suicide but incriminating
evidence is difficult to get as it is usually available within the four
walls of the matrimonial home. Section 113-A reads as under:

“113A- Presumption as to abetment of suicide by a married woman.-
When the question is whether the commission of suicide by a woman had
been abetted by her husband or any relative of her husband and it is
shown that she had committed suicide within a period of seven years
from the date of her marriage and that her husband or such relative of
her husband had subjected her to cruelty, the court may presume,
having regard to all the other circumstances of the case, that such
suicide had been abetted by her husband or by such relative of her
husband.
Explanation.– For the purposes of this section, “cruelty” shall have
the same meaning as in section 498A of the Indian Penal Code (45 of
1860 ).”
In this case the prosecution has led evidence to establish cruelty or
harassment caused to the deceased, which is rightly taken into account by
the High Court. Thus, the foundation for the presumption exists. The
appellant, however, has led no evidence to rebut the presumption.
Therefore, it can be safely concluded in the facts of this case that the
appellant abetted the suicide of the deceased.

17. There is also another angle to this case. The prosecution has
succeeded in proving facts from which a reasonable inference can be drawn
that the deceased committed suicide by jumping in the river along with her
daughter. The deceased was in the custody of the appellant. She left the
appellant’s house with the small child. Admittedly, neither the appellant
nor any member of his family lodged any missing complaint. The appellant
straightway went to the house of the deceased to enquire about her. This
conduct is strange. When his wife and small child had left the house and
were not traceable the appellant was expected to move heaven and earth to
trace them. As to when and why the deceased left the house and how she
died in suspicious circumstances was within the special knowledge of the
appellant. When the prosecution established facts from which reasonable
inference can be drawn that the deceased committed suicide, the appellant
should have, by virtue of his special knowledge regarding those facts,
offered an explanation which might drive the court to draw a different
inference. The burden of proving those facts was on the appellant as per
Section 106 of the Evidence Act but the appellant has not discharged the
same leading to an adverse inference being drawn against him (See:
Tulshiram Sahadu Suryawanshi & Anr. v. State of Maharashtra[9] and
Babu alias Balasubramaniam)

 

18. In our opinion, the trial court erred in giving undue importance to
trivial matters. The trial court missed the core of the prosecution case
which is established by the straightforward and honest evidence of the
brothers of the deceased. The trial court should have seen that when a
woman is harassed and ill-treated in her matrimonial house, it is not
possible to get independent witnesses to depose about the harassment. No
doubt, the brothers of the deceased are interested witnesses. It is,
therefore, necessary to scrutinize their evidence carefully. Keeping this
caution in mind if the evidence of the brothers is examined, the conclusion
is irresistible that it inspires confidence and bears out the prosecution
case. The trial court should have taken note of the callous and
indifferent attitude of the appellant. It should have taken into account
the fact that there is nothing on record to suggest that the deceased was
schizophrenic or was insane. That is not even the case of the defence. It
is also not the case of the defence that the death was accidental. When a
married woman jumps in a river along with her small child that too within
seven years of marriage and when the prosecution leads reliable evidence to
establish harassment caused to her in her matrimonial house in connection
with demand of money for her husband’s business and the accused-husband
leads no evidence to prove to the contrary the logical and legal conclusion
that must follow is that she committed suicide and her suicide was abetted
by her husband.

19. Undoubtedly, the High Court should not interfere with an order of
acquittal because it has power to do so and just because some other view is
also possible. The High Court must locate some gross error of law or fact
and must feel impelled to interfere with the order of acquittal to rectify
it. The purpose behind such interference is obviously to prevent
miscarriage of justice. If in a given case the High Court feels that the
trial court could never have taken the view it has taken and that it is a
perverse view which may result in gross miscarriage of justice, it is not
only its legal obligation but duty to interfere with such order of
acquittal.

20. Applying the above principles, we have no hesitation in recording
that the trial court’s order acquitting the appellant is replete with gross
errors of facts resulting in miscarriage of justice. The High Court has
rightly held that the other members of the appellant’s family can be given
benefit of doubt, but the appellant cannot escape the liability. We concur
with the High Court. We see no reason to interfere with the impugned
judgment of the High Court. The appeal is, therefore, dismissed. The
appellant is on bail. He is directed to surrender forthwith. His bail
bond stands cancelled.

…………………………………..J.
(Ranjana Prakash Desai)
……………………………………J.
(Madan B. Lokur)
New Delhi;
March 31, 2014.
———————–
[1] 2014 (2) SCALE 690
[2] (2003) 1 SCC 217
[3] (2010) 10 SCC 353
[4] (2011) 2 SCC 47
[5] (2012) 11 SCC 347
[6] (2013) 7 SCC 108
[7] (2013) 8 SCC 60
[8] (2010) 12 SCC 59
[9] (2012) 10 SCC 373

———————–
20

 

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