Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 673 OF 2011
DESH DEEPAK KUMAR VIHANGAM@ DEEPAK KUMAR APPELLANT(S)
VERSUS
THE STATE OF BIHAR RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S). 674-675 OF 2011
CRIMINAL APPEAL NO(S). 683 OF 2011
CRIMINAL APPEAL NO(S). 1714-1715 OF 2011
J U D G M E N T
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Impugned judgment dated 20 May 2010 passed by the High
Court of Judicature at Patna dismissed the appeals preferred
by Desh Deepak Kumar Vihangam @ Deepak Kumar, Bimlesh Kumar
Singh, Madan Prasad Thathera, Kanhaiya Lal, Ramjee Prajapati
and Abhay Kumar @ Pappu, who have been convicted under
Signature Not Verified
Sections 364A and 120B of the Indian Penal Code, 1860 (‘Penal
Digitally signed by
JAGDISH KUMAR
Date: 2022.03.16
16:27:11 IST
Reason:
Code’, in short). The aforesaid 6 convicts were sentenced
to undergo Imprisonment for Life. Desh Deepak Kumar Vihangam
Crl.A. No. 673 OF 2011 etc. Page 1 of 15
was ordered to pay a fine of Rs. 7,00,000 (Rupees Seven lakh
Only), while the rest of the convicts were ordered to pay a
fine of Rs. 1,00,000 (Rupees One Lakh Only) each.
2. The impugned judgment by the High Court however acquits
Santosh who was convicted by the trial court. The State has
not preferred any appeal challenging the acquittal of
Santosh. The impugned judgment has also convicted Pradeep
Kumar Shrivastava, who had preferred a petition for special
nd
leave to appeal, which was dismissed on 22 October 2010.
Another co-convict, Upendra Kumar Singh, whose conviction
was upheld by the High Court, has expired, and hence, his
appeal has abated.
3. The case relates to the kidnapping for ransom of Dr. Shashi
Kumar Sinha (PW-3), abducted along with his driver Salauddin
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(PW-5) on 7 February 2006 while travelling in a car from
his residence at Station Road, Dehri, to his clinic at
Tilouthu Village. Kiran Sinha (PW-2), the wife of Dr. Shashi
Kumar Sinha and Dr. Amitabh Sinha (PW-1), son of Dr. Shashi
Kumar Sinha, have deposed that calls for ransom were made.
Initially, an amount of Rs. 1,00,00,000/- (Rupees One Crore
Only) was demanded, but thereafter, the kidnappers had
agreed to release the captives on payment of Rs. 12,00,000/-
(Rupees Twelve Lakhs Only). Dr. Amitabh Sinha (PW-1) had
deposed that he had paid a ransom of Rs. 12,00,000/- (Rupees
Crl.A. No. 673 OF 2011 etc. Page 2 of 15
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Twelve Lakhs Only) to Deepak Kumar at Ranchi on 24 February
2006. At that time, Dr. Amitabh Sinha (PW-1) did not know
the name and identity of Deepak Kumar. He came to know about
his identity when Deepak Kumar was arrested at Patna by the
I.O. Yogesh Chandra (PW-8) and Inspector Krishna Kumar Singh
@ K.K. Singh (PW-4). Dr. Amitabh Sinha (PW-1) had visited
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Patna on 9 March 2006 as the kidnappers had demanded a
further sum of Rs.5,00,000/- (Rupees Five Lakh Only) as
ransom. Deepak Kumar and Kanhaiya Lal were arrested at Patna
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on 10 March 2006. Inspector K.K. Singh (PW-4) and I.O.
Yogesh Chandra (PW-8) have deposed that Deepak Kumar had
then made a disclosure statement whereupon the police along
with Deepak Kumar and Kanhaiya Lal had proceeded to Village
Bar , District Aurangabad, Bihar. Dr. Shashi Kumar Sinha (PW-
3) and Salauddin (PW-5) were rescued in the intervening
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night of 10 and 11 March from the house of Upendra Kumar
Sinha situated at Village Bar. Bimlesh Kumar Singh, Madan
Prasad Thathera, Pradip Kumar Shrivastav and Upendra Kumar
Sinha were present at the house and were involved in the
kidnapping of Dr. Shashi Kumar Sinha (PW-3) and Salauddin
(PW-5). They were arrested. Dr. Shashi Kumar Sinha (PW-3)
and Salauddin (PW-5), the victims, identified Deepak Kumar,
Bimlesh Kumar, Madan Prasad Thathera, Pradeep Kumar and
Upendra Kumar in the court. On the basis of the disclosure
statement made by Deepak Kumar, Rs. 6,00,000/- (Rupees Six
Lakhs Only) were recovered from his tenanted premises at
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Patna. Some of the currency notes recovered bore the
signatures of Dr. Amitabh Sinha (PW-1).
4. In view of the aforesaid facts, and the appreciation of
evidence, we hold that the conviction of Bimlesh Kumar, Madan
Prasad Thathera and Deepak Kumar is correct. We are in
agreement with the findings and conclusions of the trial
court and the High Court in this regard.
5. We will now be adverting to the case of Kanhaiya Lal. Dr.
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Amitabh Sinha (PW-1) has deposed that on 9 March 2006 he
received a phone call from the kidnapper who asked him to
come to Patna with Rs. 5,00,000/- (Rupees Five Lakh Only).
He was told to reach Gaighat with the money after taking the
route from Hanuman Mandir road to Gandhi Maidan via Frazer
Road and to proceed towards Engineering Mod , and from the
said Mod to reach Gaighat. He thereupon had contacted the
police who made arrangements to track down the culprits and
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apprehend them. He reached Patna on 9 March 2006 and spent
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the night at Arya Samaj Hotel. On 10 March 2006 at 6.30
A.M. he received a call from the kidnappers and was asked
to reach Gaighat with the money on a rickshaw as per the
route specified. He hired a cycle rickshaw and followed the
route as per the instructions of the kidnappers. On the way
he crossed the gate of Patna Medical College and reached the
Engineering College at about 8.00 A.M. From there, he reached
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Gaighat at about 8.30-8.45 A.M.
6. After 3 to 4 hours Dr. Amitabh Sinha (PW-1) received a phone
call from Inspector K.K. Singh (PW-4) who asked the former
to reach Kotwali Police Station. On reaching the police
station, Dr. Amitabh Sinha (PW-1) identified Deepak Kumar,
as the person who had collected ransom money of Rs.
12,00,000/- (Rupees Twelve Lakh Only) from him at Ranchi on
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24 February 2006. Dr. Amitabh Sinha (PW-1) did not
recognise Kanhaiya Lal, who was also present as he had been
detained by the police.
7. Inspector K.K. Singh who has deposed as PW-4, has referred
to his conversation with Dr. Amitabh Sinha (PW-1) in which
Dr. Amitabh Sinha (PW-1) stated that he had been asked to
pay ransom money of Rs. 5,00,000/- (Rupees Five Lakh Only)
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at Patna in the morning of 10 March 2006. Accordingly, on
the directions of the Superintendent of Police, a special
task force was formed, and he was assigned the duty to lead
the raiding party. Inspector K.K. Singh (PW-4) knew the route
which Dr. Amitabh Sinha (PW-1) was required to follow. At
about 6.00-6.30 A.M., Inspector K.K. Singh (PW-4) was
informed by Dr. Amitabh Sinha (PW-1) that the culprits had
asked him to take a rickshaw and was required to travel
around Mahavir Mandir Station. This information was shared
by Inspector K.K. Singh (PW-4) with other police officers,
Crl.A. No. 673 OF 2011 etc. Page 5 of 15
including I.O. Yogesh Chandra (PW-8). The Police Team
decided to follow Dr. Amitabh Sinha (PW-1) in civil dress.
As planned, they followed the rickshaw in which Dr. Amitabh
Sinha (PW-1) was sitting. Dr. Amitabh Sinha (PW-1) crossed
Frazer Road via Gandhi Maidan and reached Ashok Rajpath. At
that time, the police team noticed that one black Yamaha
motorcycle was following the said rickshaw. The driver of
the motorcycle was not wearing a helmet, whereas the pillion
rider was wearing a helmet. They kept a watch on this
motorcycle and thereupon stopped the motorcycle near the
Patna Medical College. Kanhaiya Lal was driving the
motorcycle, and Deepak Kumar was the pillion rider .
Thereupon, both of them were taken to Peer Vihar Police
Station. However, the police team continued to follow Dr.
Amitabh Sinha (PW-1) as he moved forward towards Gaighat.
No one came to collect the money in the entire route. Upon
interrogation of Deepak Kumar, they came to know of the
location where Dr. Shashi Kumar Sinha (PW-3), after the
kidnapping , had been detained. The same night the police
team proceeded to Village Bar, District Aurangabad, Patna,
as noted above, had rescued Dr. Shashi Kumar Sinha (PW-3)
and Salaudin [PW-5].
8. I.O. Yogesh Chandra (PW-8) similarly deposed that he was a
member of the team which was following Dr. Amitabh Sinha
(PW-1), who was sitting on the cycle rickshaw and had
Crl.A. No. 673 OF 2011 etc. Page 6 of 15
thereupon detained Kanhaiya Lal and Deepak Kumar near Patna
Medical College.
9. From the aforesaid depositions of Inspector K.K. Singh (PW-
4) and I.O. Yogesh Chandra (PW-8), we accept that Kanhaiya
Lal along with Deepak Kumar, were detained when they were
travelling on the motorcycle at or around Patna Medical
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College at about 8 A.M. on 10 March 2006.
10. Noticeably, Kanhaiya Lal, in his statement under Section 313
of the Code of Criminal Procedure, 1973 (‘Criminal Code’,
for short) was candid to accept that he had picked up Deepak
Kumar from the bus stand as he had been called there to take
him to the Patna Medical College. He had stated that he was
in the business of running coaching classes and had nothing
to do with the incident.
11. On the question of the involvement of Kanhaiya Lal in the
episode of kidnapping and whether his conviction is
justified under Section 120B of the Penal Code, we would
like to refer to the cross-examinations of Inspector K. K.
Singh [PW-4] and the I.O. Yogesh Chandra. (PW-8). K.K Singh
(PW-4) in the cross-examination had accepted that :-
“ 36. Kanhiya lal never gave any statement regarding
this case. I cannot say that whether he was involved
in this case or not. I do not investigate mobile phone
of Kanhiya Lal. IO sir might took it only he can tell.”
Inspector K. K. Singh [PW-4] while agreeing that
Crl.A. No. 673 OF 2011 etc. Page 7 of 15
Kanhaiya Lal was brought to Village Bar, but thereafter
accepted that “Kanhaiya Lal never spoke regarding the whole
incident”. Inspector K. K. Singh [PW-4] also agreed that
Kanhaiya Lal had not given any statement “regarding either
len-den (money transaction) or abduction” during his
interrogation. Kanhaiya Lal had told them that he had been
asked by Deepak Kumar to take him to Patna Medical College
on his motorcycle. Kanhaiya Lal did not point out anything
regarding abduction of Dr. Shashi Kumar Sinha (PW-3) and had
no criminal history prior to the said date.
12. Relevant portions of the cross-examination of I.O. Yogesh
Chandra (PW-8) reads as under;
“ 42. Whether there is any hand of Kanhaiya Lal Gupta
in this case or not I have not inquired from anyone.
The mobile No. of Mr. Kanhaiya Lal is 9334315014. From
Kanhaiya Lal’s mobile nothing more has been called then
calling motor cycle for going and bringing the motor
cycle is there and nothing else. It has been confirmed
from the printout.
43. In making Kanhaiya Lal as accused there was a talk
with SP Sahib. It was an Oral talk and in the diary I
have not noted down. Written report which has been
submitted in PS Madanpur has not been written the facts
that Kanhaiya Lal Gupta was brought in the village of
War. In my front K.K. Singh had not said in his
statement that Kanhaiya Lal Gupta was also brought to
the village-War. Desh Deepak has not pointed out that
Kanhaiya Lal had knowledge about this incident. He only
pointed out regarding asking for motor cycle and what
was the motto, was not pointed out. In Para 142 of the
case diary accused Desh Deepak has not pointed any
thing about Kanhaiya Lal. Kanhaiya Lal had pointed out
only the facts that he has been caught with Desh Deepak,
that is why charge sheet has been submitted against him
on the basis of suspicion. It is circumstantial
evidence.”
13. Dr. Amitabh Sinha (PW-1), in his cross-examination, had
Crl.A. No. 673 OF 2011 etc. Page 8 of 15
testified that he did not see the police team apprehending
Deepak Kumar and Kanhaiya Lal when travelling on the
motorcycle near the Patna Medical College. Dr. Amitabh Sinha
(PW-1) did not recognize Kanhaiya Lal. As per the prosecution
case, Kanhaiya Lal is a resident of Patna. It is also not
the case of the prosecution that Kanhaiya Lal was involved
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in the act of kidnapping, which had taken place on 7
February 2006 at Tilouthu Village, District Dehri-On-Sone,
Bihar. Kanhaiya Lal was not in touch with any of the
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kidnappers including Deepak Kumar, from 7 February 2006
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until the morning of 10 March 2006.
14. At this stage it is imperative to discuss the settled
position of law with regard to the ingredients and the
standard of proof to be achieved by the prosecution for
conviction under section 120-B of the Penal Code. In Mohd.
1
Khalid v. State of West Bengal this Court had elucidated
the elements of criminal conspiracy which are reproduced as
under:
| “ | The elements of a criminal conspiracy have been | ||
|---|---|---|---|
| stated to be: | |||
| ( | a<br>b | ) an object to be accomplished, | |
| ( | ) a plan or scheme embodying means to accomplish | ||
| that object, | |||
| ( | c | ) an agreement or understanding between two or | |
| more of the accused persons whereby, they become | |||
| definitely committed to cooperate for the | |||
| accomplishment of the object by the means embodied | |||
| in the agreement, or by any effectual means, and | |||
| d | ) in the jurisdiction where the statute required | ||
| an overt act. The essence of a criminal conspiracy |
1
(2002) 7 SCC 334
Crl.A. No. 673 OF 2011 etc. Page 9 of 15
| is the unlawful combination and ordinarily the | |
|---|---|
| offence is complete when the combination is | |
| framed.” |
Elaborating upon the standard of proof the prosecution has
to meet in establishing criminal conspiracy, this Court in State
2
of Kerala v. P. Sugathan & Another held as under;
| “ | We are aware of the fact that direct independent | |
|---|---|---|
| evidence of criminal conspiracy is generally not | ||
| available and its existence is a matter of inference. | ||
| The inferences are normally deduced from acts of | ||
| parties in pursuance of purpose in common between the | ||
| conspirators. This Court in V.C. Shukla v. State (Delhi | ||
| Admn.) (1980) 2 SCC 665 held that to prove criminal | ||
| conspiracy there must be evidence direct or | ||
| circumstantial to show that there was an agreement | ||
| between two or more persons to commit an offence. There | ||
| must be a meeting of minds resulting in ultimate | ||
| decision taken by the conspirators regarding the | ||
| commission of an offence and where the factum of | ||
| conspiracy is sought to be inferred from circumstances, | ||
| the prosecution has to show that the circumstances | ||
| giving rise to a conclusive or irresistible inference | ||
| of an agreement between the two or more persons to | ||
| commit an offence. As in all other criminal offences, | ||
| the prosecution has to discharge its onus of proving | ||
| the case against the accused beyond reasonable doubt. | ||
| The circumstances in a case, when taken together on | ||
| their face value, should indicate the meeting of the | ||
| minds between the conspirators for the intended object | ||
| of committing an illegal act or an act which is not | ||
| illegal, by illegal means. A few bits here and a few | ||
| bits there on which the prosecution relies cannot be | ||
| held to be adequate for connecting the accused with the | ||
| commission of the crime of criminal conspiracy. It has | ||
| to be shown that all means adopted and illegal acts | ||
| done were in furtherance of the object of conspiracy | ||
| hatched. The circumstances relied for the purposes of | ||
| drawing an inference should be prior in time than the | ||
| actual commission of the offence in furtherance of the | ||
| alleged conspiracy.” |
This Court in Central Bureau of Investigation,
3
Hyderabad v. K. Narayana Rao held;
| (2000) 8 SCC 203 | |
|---|---|
| (2012) 9 SCC 512 |
Crl.A. No. 673 OF 2011 etc. Page 10 of 15
| “ | The ingredients of the offence of criminal conspiracy | |
|---|---|---|
| are that there should be an agreement between the | ||
| persons who are alleged to conspire and the said | ||
| agreement should be for doing of an illegal act or for | ||
| doing, by illegal means, an act which by itself may not | ||
| be illegal. In other words, the essence of criminal | ||
| conspiracy is an agreement to do an illegal act and | ||
| such an agreement can be proved either by direct | ||
| evidence or by circumstantial evidence or by both and | ||
| in a matter of common experience that direct evidence | ||
| to prove conspiracy is rarely available. Accordingly, | ||
| the circumstances proved before and after the | ||
| occurrence have to be considered to decide about the | ||
| complicity of the accused. Even if some acts are proved | ||
| to have been committed, it must be clear that they were | ||
| so committed in pursuance of an agreement made between | ||
| the accused persons who were parties to the alleged | ||
| conspiracy. Inferences from such proved circumstances | ||
| regarding the guilt may be drawn only when such | ||
| circumstances are incapable of any other reasonable | ||
| explanation. In other words, an offence of conspiracy | ||
| cannot be deemed to have been established on mere | ||
| suspicion and surmises or inference which are not | ||
| supported by cogent and acceptable evidence.” |
15. When we reflect on the evidence on record in the light of
aforementioned dictum, it is apparent that Inspector K.K.
Singh (PW-4) and the I.O. Yogesh Chandra (PW-8) who had
detained Kanhaiya Lal with Deepak Kumar, have themselves
expressed doubt on involvement of Kanhaiya Lal in the crime
in question. While we do not doubt that Kanhaiya Lal was
taken into custody while he was driving the motorcycle with
Deepak Kumar on the pillion behind him, the version given
by Kanhaiya Lal, in his statement under Section 313 of the
Criminal Code, that he had picked up Deepak Kumar from the
bus stand as he had been called there to take him to Patna
Medical College gets corroboration from the police team
Crl.A. No. 673 OF 2011 etc. Page 11 of 15
itself. Therefore, we cannot draw conclusive and
irresistible inference of an agreement or that Kanhaiya Lal
had gone to the bus stand and had picked up Deepak Kumar in
pursuance of a plan or scheme to accomplish an objective or
even with the knowledge that Deepak Kumar was following the
rickshaw because he had to collect ransom. It is palpable
that Inspector K.K. Singh (PW-4) and the I.O. Yogesh Chandra
(PW-8) have somewhat corroborated Kanhaiya Lal’s version
that he was to drop Deepak Kumar at Patna Medical Collage.
Dr. Amitabh Sinha (PW-1) while on the rickshaw had gone past
Patna Medical Collage and was not over taken or stopped by
Kanhaiya Lal.
16. In the aforesaid background, the settled position of law, factual
matrix and the depositions made by I.O. Yogesh Chandra (PW-8)
and Inspector K.K. Singh (PW-4)], we are inclined to give the
benefit of doubt to Kanhaiya Lal.
17. As far as Ramjee Prajapati and his son Abhay Kumar are
concerned, it is an accepted position that Ramjee Prajapati
was a compounder who also had a medical store outside the
clinic of Dr. Shashi Kumar Sinha (PW-3) at Tilouthu. Their
involvement is pleaded on the following assertaions (i)
Ramjee Prajapeeti had contacted the family of Dr. Shashi
Kumar Sinha (PW-3) when Dr. Shashi Kumar Sinha (PW-3 ) had
not reached the clinic and had raised suspicion that he may
Crl.A. No. 673 OF 2011 etc. Page 12 of 15
have been kidnapped ; (ii) Ramjee Prajapati and Abhay Kumar,
through their landline and mobile phones, had contacted and
spoke to telephone/mobile number 9431028412, which was the
telephone/mobile number of Dr. Shashi Kumar Sinha (PW-3);
and (iii) Dr. Shashi Kumar Sinha (PW-3), has deposed that
he heard the kidnappers take different names like Lalji
Mishra, Bindeshwary Choudhary, Taiyab Ansari, Kalicharan
etc., and also, Ramjee Prajapati and Abhay Kumar for money .
He had also stated that the accused had told him that Santosh
(who has been acquitted by the High Court) and Abhay Kumar
had committed the occurrence.
We do not think that the aforesaid assertions when
analyzed would meet and satisfy the standard of proof to
connect Ramjee Prajapati and Abhay Kumar with the kidnapping
of Dr. Shashi Kumar Sinha (PW-3). First two assertions are
neutral and can well be read as evidence that shows Ramjee
Prajapati and Abhay Kumar’s concern for Dr. Shashi Kumar
Sinha (PW-3). Once they had got in touch with the kidnappers
on the telephone, the kidnappers knew their names. The third
factum therefore is somewhat debatable. It is not the case
of the prosecution that Ramjee Prajapati and Abhay Kumar
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were known or in touch with the kidnappers on or before 7
February 2006. There is not even an iota of evidence that
any of the kidnappers were known beforehand to Ramjee
Prajapati and Abhay Kumar. The calls were made to the
mobile/telephone number of Dr. Shashi Kumar Sinha (PW-3)
Crl.A. No. 673 OF 2011 etc. Page 13 of 15
which Ramjee Prajapati obviously had. Telephone calls were
not made to the kidnappers on their personal telephone
numbers. Both of them were arrested on suspicion on 6 March,
2006. It is not the case of the police that Ramjee Prajapati
and Abhay Kumar gave any lead or information with regard to
the ‘other’ kidnappers. The family of Dr. Shashi Kumar Sinha
(PW-3) had received ransom calls even after the arrest of
Ramjee Prajapati and Abhay Kumar. It is only after Deepak
Kumar was arrested that the location where Dr. Shashi Kumar
Sinha (PW-3) after the abduction had been kept was
ascertained. Therefore, Ramjee Prajapati and Abhay Kumar are
also entitled to the benefit of doubt.
18. Accordingly, we dismiss the appeals and affirm the
convictions and sentences of Desh Deepak Kumar Vihangam @
Deepak Kumar, Bimlesh Kumar Singh and Madan Prasad Thathera.
The appeals preferred by Kanhaiya Lal, Ramjee Prajapati and
Abhay Kumar @ Pappu are allowed, and their convictions under
Section 364A and 120B of the Penal Code are set aside. Bail
bonds of Kanhaiya Lal, Ramjee Prajapati and Abhay Kumar stand
cancelled. Deepak Kumar, who is enlarged on bail, shall
surrender to the concerned authorities within 10 days from
today to serve the sentence of Imprisonment for life and pay
the fine of Rs. 7,00,000/- (Rupees Seven Lakh Only) with
stipulations for recovery. If he does not surrender, the
police would take immediate steps to detain and arrest him
as per law.
Crl.A. No. 673 OF 2011 etc. Page 14 of 15
19. All pending applications stand disposed of.
……………………………………………..J.
[SANJIV KHANNA]
……………………………………………..J.
[ BELA M. TRIVEDI]
NEW DELHI;
8TH MARCH, 2022.
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