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STATE OF U.P. versus DULAREY AND OTHERS

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State Of U.P. v. Dularey And Others - GOVERNMENT APPEAL No. 1498 of 1988 [2006] RD-AH 21495 (20 December 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 55

Reserved.

Government Appeal No. 1498 of 1988

State of U.P. Vs. Dularey and  three others.

Hon'ble Amar Saran, J

Hon'ble R.N. Misra, J

(Delivered by Hon'ble R.N. Misra, J )

This appeal has been preferred by the State of Uttar Pradesh against the judgement and order dated 1.3.1988, passed by Sri H.S. Sharma, the then IInd Additional Sessions Judge, Etawah in Session Trial No. 48 of 1987, by which the respondents were acquitted of the charges levelled against them for the offences, punishable under Section 302/449 I.P.C.  

This may be pointed out here that one of the respondents namely Dularey Lal has died and the case against him stood abated as is evident from the order sheet dated 26.7.2006.

The facts giving rise to this appeal are as under:

According to the prosecution case, the complainant-informant, Udai Narain and the accused respondents were residents of village Purwa Peetaram, Police Station Bidhuna, district Etawah. There was enmity between the parties including deceased Phool Singh. The accused respondent Kamlesh Kumar wanted to purchase a land, which was purchased by deceased Phool Singh and  that gave rise to bad blood between them. On 17.9.1986, at about 8.30 P.M, the deceased Phool Singh was sitting in his house along with the complainant-informant, Udai Narain,  Ram Bharosey, Chhotey Lal and ladies of the family and were  talking about domestic affairs. In the meantime, the accused respondents Dularey Lal, Hakim Singh, Jawahar Lal and Kamlesh Kumar entered the house. Dularey Lal had country made pistol, Hakim Singh had spear and Kamlesh Kumar and Jawahar Lal had Lathis in their hands. Dularey Lal exhorted his associates to kill the deceased Phool Singh. He also threatened that if any one will come in the way, he shall be shot dead by him. The deceased Phool Singh came forward and other family members present there raised alarms and the witnesses Daya Ram and Ram Prasad and other reached there. In the meantime, the accused-respondent Hakim Singh pierced the spear (Bhala) in the chest of Phool Singh, who sustained injury and fell down. The accused persons ran away from there.

The complainant-informant Udai Narain and other family members put the injured on a cot and proceeded for medical aid. As soon as they reached near the school of their village, they found the injured dead. The dead body was left there and the complainant-informant proceeded to Police Station Bidhuna, district Etawah. He lodged the report Ext. Ka-1 there. The police registered the case at Crime No. 169 of 1986, under Section 302/449 I.P.C., which is evident from Chik Ext. Ka-4. The Sub-Inspector Radhey Shyam Verma investigated the case. During investigation, he visited the spot and prepared site plan Ext. Ka-6 and Ext. Ka-7. He took blood stained and simple mud from the place of occurrence and prepared memo Ext. Ka-7. He also took Angauchha of the deceased which was blood stained and prepared memo Ext. Ka-8. The accused Kamlesh was arrested by him and on his pointing out, the spear was recovered from the Chhappar of respondent Hakim Singh. The memo Ext. Ka-10 was prepared. The recovered articles were deposited in the Malkhana. The houses of the accused persons were searched by the Investigating Officer and the search memo is Ext. Ka-9. The dead body of the deceased was inspected by the Investigating Officer and the inquest memo Ext. Ka-5 was prepared by him. The challan of the dead body is Ext. Ka-15 and photo Ext. ka-16. The letter to Chief Medical Officer, written by the Investigating Officer is Ext. Ka-13. The dead body was sealed and sent for post-mortem examination. Dr. S.C. Dubey conducted the postmortem examination. His report is Ext. Ka-2. The Investigating Officer interrogated the prosecution witnesses and after completing the investigation, he submitted charge sheet Ext. ka-12 against the accused persons.  

The accused persons had denied the allegations levelled against them and have made their false implication due to enmity. The accused Dularey Lal has stated that in the year 1982, there was Gram Sabha election, in which he was also a candidate. There were six other candidates including the complainant-informant, Udai Narain and the both were defeated. The deceased Phool Singh was drunkard and gambler and probably, he was killed near the school in the night by someone else. No incident took place at the house of the deceased as alleged by the prosecution. His dead body was found near the school. There was parti-bandi in the village, therefore, the witnesses deposed against him. The accused respondent Hakim Singh has stated that in the year 1972, Dulary lal had lodged a report against 25 or 26 persons including prosecution witnesses, Daya Ram, under Sections 147, 148, 427, 436, 307 I.P.C. at Police Station Bidhuna, district Etawah. They were prosecuted and due to that enmity, this false accusation has been made against them. The other accused persons have also adopted same defence. They have examined Ram Singh, DW-1 in their defence. They have filed copy of F.I.R. lodged in the year 1972, which is Ext. Kha-2. The copy of G.D. dated 19.11.1987 has also been filed by them which is Ext. Kha-1.

The accused-respondent Hakim Singh has been charged under Section 302/449 I.P.C. and the remaining respondents have been charged under Section 302 read with Section 34 and 449 I.P.C.

In support of its case, the prosecution has examined  Udai Narain PW-1, Smt. Ram Sakhi PW-2, Daya Ram PW-3 and  Ram Bharosey PW-4, as eye witnesses of the occurrence. Dr. S.C. Dubey PW-5 has been examined to prove the postmortem report. The Head Constable, Jitendra Bahadur Singh PW-6,  had prepared chik on the basis of written report of the complainant-informant and  made entry in the G.D., Sub-Inspector, Radhey Shyam Verma, PW-7  had investigated the case and had submitted charge sheet against the accused.

After hearing the parties and considering the evidence on record, the learned trial court came to the conclusion that the prosecution could not prove its case, beyond all reasonable doubts against the accused-respondents and vide impugned judgment and order, he acquitted them of the charges levelled against them and aggrieved by the said judgement and order, the State of U.P. has preferred this appeal.

We have heard learned counsels for parties and perused the evidence on record.

The motive behind the occurrence as alleged by the prosecution was that there was some dispute between the accused persons and the deceased regarding election of Gaon Sabha and water drainage.There was some enmity between them regarding purchase of a land also. This fact is not disputed that the election of Gaon Sabha had taken place much earlier to the incident in question, in which one of the accused persons, namely Dularey Lal and the deceased were contesting candidates, beside some others and both were defeated. The prosecution case is that the discredit of defeat was being given to the deceased. The accused respondent Hakim Singh has also mentioned enmity in his statement, under Section 313 Cr.P.C. He has stated that in the year 1972, co-accused Dularey Lal had lodged a report against 25 or 26 persons, in which the prosecution witness Daya Ram and some others were sent to jail. Copy of that report has been filed which is Ext. Kha-2. PW-4, Ram Bharosey has stated at page 7 of his statement on oath that the drainage of dirty water of the house of deceased was towards east, where there was a Rasta and the accused persons were objecting to it and giving threats. PW-2, Smt. Ram Sakhi, the wife of the deceased Phool Singh has also stated at page 4 of her statement on oath that the accused persons were objecting to the flow of water of her house towards the Rasta.This was the prosecution case that the deceased purchased a property prior to the incident in question, which was intended to be purchased by the accused-respondent Kamlesh. The learned trial court disbelieved this version on the ground that the  age disclosed by Kamlesh in his statement under Section 313 Cr.P.C in 1988 was about 16 years. The learned trial court also estimated his age to be 17 or 18 years. The learned trial court has expressed its opinion that prior to the incident in question, Kamlesh was minor and how  could he  purchase the property?. This reason is against  law. A minor can purchase the property in his name but the contract is to be made through his guardian. PW-1, Udai Narain at page 3 of his statement on oath has stated that the deceased Phool Singh had purchased the Abadi land from Hori Lal and on that land, he constructed a house. Though no documentary evidence for purchase of that land has been placed on record, but there is no evidence to falsify the said statement. If there was no such transaction, Hori Lal should have been produced by the accused in their defence. Thus, there was sufficient motive for murder of the deceased by the accused persons because all the accused persons belonged to the same family.

The eye witnesses have clearly deposed against these accused persons and they have given a complete eye account of the incident. PW-1, Udai Narain is the real brother of deceased Phool Singh. He has stated that on 17.9.1986, at about 8.30 P.M, he was sitting in the house of deceased, Phool Singh along with Ram Bharosey, Chhotey Lal, Smt. Ninda Devi and Smt. Ram Sakhi. These persons belonged to the same family. The accused-respondents Dularey Lal, Hakim Singh, Jawahar Lal and Kamlesh suddenly came in the Chhappar, in which the deceased and other family members were sitting. Dularey Lal had country made pistol, Hakim Singh had spear, Jawahar Lal and Kamlesh had lathis in their hands. Dularey Lal exhorted the other accused persons to kill the persons assembled there. Phool Singh mustered courage to come forward to protest  but  Hakim Singh pierced his spear in his chest, due to which, he fell down. The other persons assembled there raised alarm and the witnesses Daya Ram and Ram Prasad and others reached there and saw the occurrence. The accused persons ran away from there. Thus, it was a sudden attack by the accused persons. PW-1 has further stated that he tied ''Angauchha' on the wound of Phool Singh. He was put on a cot and the family members proceeded with the injured to the Hospital for medical aid, but as soon as they reached near the school situate in the village, they found the injured to have died. The dead body was left there under the supervision of other family members and PW-1 Udai Narain went to the police station and lodged the F.I.R  Ext. Ka-1 there. The report was lodged in the same night at 10.30 P.M. The distance of police station from the place of occurrence was about 5 Miles. Thus, there was a prompt F.I.R. The F.I.R. Ext. Ka-1 contains necessary descriptions of the crime naming the accused persons and the manner of assault. This argument of learned counsel for the respondents is not considerable that when the inquest report of dead body of the deceased was prepared, till that time, there was no F.I.R, because in the inquest report, the distance was given about 6.5 Kms. Roughly, the distance of 5 Miles is equal to about 7 Kms. Thus, there was no material contradiction. PW 1 has further stated at page 6 that he was present on the spot about 10 or 15 minutes prior to the incident in question and had seen the occurrence. At page 7, he has given detailed description of place of occurrence which corresponds with the site plan Ext. Ka-6, prepared by the Investigating Officer. At page 8, he has stated that none tried to catch the accused persons. As has been disclosed earlier, according to the prosecution witnesses, all the accused persons were armed with weapons, therefore, it was but natural for the complainant-informant and other persons assembled there to avoid further complications in catching the accused. They could attack them also. The scribe of the F.I.R. Ext. Ka-1 was Shiv Kumar Singh. PW-1 has clearly stated at page 9 that Shiv Kumar Singh had reached the spot after  hearing the news of murder of Phool Singh. Thus, there was no un-naturality in getting the F.I.R. Ext. Ka-1 scribed by Shiv Kumar Singh on the dictation of PW-1, Udai Narain.

PW-2, Ram Sakhi, the widow of deceased Phool Singh has also corroborated the prosecution case in her statement in chief. In her cross examination, she has given satisfactory answer to the questions asked by the defence. She has stated that the family members along with deceased were assembled in a Chhappar at the time of incident. They were talking about domestic matters. The accused persons came there and on exhortation of accused  Dulary Lal, the co-accused Hakim Singh wielded   Ballam in the chest of Phool Singh. At page 5, she has stated that the witnesses Daya Ram and Ram Prasad were standing outside of the room of her house  at a distance of about 2 or 3 feet, but no villager came inside the house. PW-3, Daya Ram and PW-4 Ram Bharosey have also fully corroborated the prosecution case. Ram Bharosey is also real brother of deceased Phool Singh. He was also present in the Chhapper at the time of incident. All these witnesses have stated that when Phool Singh fell down in the Chhapper after sustaining injuries, he was being shifted by the family members to the Hospital but near the school, he died and the dead body was left there. The Investigating Officer recovered the dead body near the school.

Learned counsel for the accused respondents has argued that the deceased was murdered near the school and that is why his dead body was lying there. But we see no force in this contention. Admittedly, the deceased was peon in the school. PW-2, Smt. Ram Sakhi has stated at page 6 that casually, the deceased used to sleep in the school in the night but normally, he used to come back to his house after performing his day time duties. The evidence on record shows that the deceased was Peon of the school and not Chaukidar. Merely on the basis of this statement of PW-2, Ram Sakhi that the deceased used to sleep in the school casually, it cannot be said that the murder was committed there. The statement of witnesses on this count is reliable that when the deceased was being shifted to Hospital on a cot, he succumbed to his injuries near the school. Therefore, after putting dead body there, the complainant-informant went to the police station for lodging the F.I.R.

No doubt all the witnesses are related to each other and belong to the same family. Learned counsel for the accused respondents has contended that no independent witness has been produced in this case, therefore, only on the basis of statement of family members, the prosecution story cannot be relied upon. But we find no force in this contention, because circumstances of the case were such that no outsider could be present there at the time of incident. There is specific evidence of the prosecution witnesses that they were sitting in the Chhapper of the deceased and were talking about domestic affairs. In the meantime, the accused persons reached there and within no time, the incident took place. When hue and cry was made by the family members, the village people assembled there but by that time, the incident had already taken place. In such circumstances,  only family members were there, who had seen the entire chain of incident. In the case of Ravi Vs. State of U.P. 2004 (11) SCC 266,  the Hon'ble Apex Court has thrown light on the appreciation of evidence of related witnesses. The Hon'ble Apex Court has opined that it is well settled in a catena of cases that the evidence of related witnesses cannot be rejected merely because they are related. The relatives will not exonerate real culprits and falsely implicate others. In the case of  Krishna Mochi Vs. State of Bihar 2002 (6) SCC 81 , it has been observed that in ordinary course, the independent witnesses are not inclined to depose in the matter of others. Similar view has been taken in the case of  Appa Bhai Vs. State of Gujarat 1988 (Suppl) SCC 241 . Thus, this social circumstance cannot be ignored. Normally unrelated persons do not come forward to give evidence in the criminal cases for others because of their safety and fear of enmity etc. If the evidence of related or interested witnesses is found reliable, that cannot be rejected only on the basis that they are interested or related to the aggrieved.

In the F.I.R. Ext. Ka-1, there is no mention of source of light. The F.I.R. was not expected to contain all  minor details  of occurrence or answer to the  expected questions to be put in the cross examination. All the eye witnesses have clearly stated that the Lantern was burning there and it was moon night, therefore, there was no hurdle in identifying the accused persons, who were acquainted with them and belonged to the same village. Learned trial court has made lack of light a ground for acquittal of the accused-respondents, which is not reasonable. The lantern was taken by the Investigating Officer on 29.9.1986, which is evident from the memo Ext. Ka-11. The incident had taken place on 17.9.1986. All the witnesses have clearly stated that they had told the Investigating Officer about the lantern and the moon light. The Investigating Officer, Radhey Shyam Verma PW-7 has also admitted this fact in his statement on oath that the complainant-informant Udai Narain had told him about Lantern at the time of interrogation. However, it could not find place in his statement, under Section 161 Cr.P.C. Thus, this was the fault of Investigating Officer and not the witnesses and for the fault of Investigating Officer, the prosecution cannot be made to suffer as has been held by the Hon'ble Supreme Court in the case of  Ram Bali Vs. State of U.P. 2004 (10) SCC 598.

Learned counsel for the accused respondents has argued that had there been light of Lantern on the spot, it would have been told by the witnesses to the Investigating Officer, under Section 161 Cr.P.C and  described by the complainant-informant in the F.I.R.  For a moment, if it is assumed that the source of light was not disclosed in the F.I.R or before the Investigating Officer and for the first time, it was disclosed in the statement before the Court, even then, the prosecution witnesses cannot be disbelieved. The law is very clear on the point. In the case of  State of Gujarat Vs. N.D. Patel and others 1983 SCC (Crl) 590,  it has been held by the Hon'ble Apex Court that this is no ground to reject the testimony of witnesses, merely on the fact that they did not disclose a particular fact before the police, but disclosed it before the court. The incident took place at about 8.30 P.M, where the deceased was talking with his family members. Hence it was but natural to have some device for light there.

The ''Angauchha' which was blood stained was found on the spot by the Investigating Officer. All the witnesses have clearly stated that to stop the bleeding from the chest wound, the ''Gamchha' was tied by the complainant-informant on the wound of injured. Admittedly, the dead body was lying near the school. Learned counsel for the accused respondents has argued that the Gamchha should have been found on the wound of deceased and the presence of Gamchha on the spot was going to falsify the prosecution case. But we see no force in this contention, because prosecution evidence is very clear on the point. All the witnesses have stated for tying of Gamchha on the wound of deceased in his Chhappar. There is nothing on record to show that when the injured was being shifted to Hospital, the Gamchha was already tied on the wound. There could be possibility of removing the Gamchha from the wound, if blood oozing had stopped. The Investigating Officer recovered the blood stained mud also from the place of occurrence. These recoveries along with statement of eye witnesses clearly proved the place of occurrence to be Chhapper of deceased and not the school. There is no report of chemical examiner on the record regarding blood stained mud and blood stained Gamchha and on that basis, it has been argued by learned counsel for the accused respondents that the prosecution case is doubtful. But in our opinion, when the place of occurrence is fully proved by the statement of eye witnesses, this fact cannot lead to disbelieve the prosecution case that blood stained articles were not sent to chemical examiner or even if sent, the report was not brought to the record. In the case of Anant Mohanta Vs. State of Orrisa 1978 SCC (Crl) 523 and Naurangi Lal Vs. State of U.P. 1995 ALJ 1625, it has been clearly held that if the blood stained articles are not sent for chemical examination, this will not be fatal for the prosecution provided the incident including place of occurrence is well proved from the evidence of eye witnesses.

The last point which was vehemently pressed by learned counsel for the accused respondents was that the deceased had sustained two stabbed wound on his body, whereas according to the prosecution witnesses, the Ballam was pierced only once to the deceased. Learned trial court has also made it major ground for acquittal. No doubt Dr. S.C. Dubey, who had conducted autopsy of the deceased has mentioned two stabbed wounds on the dead body of deceased Phool Singh. The first stabbed wound measuring 1.5 cm x 1 cm x cavity deep was found on the left side of chest. It was situate below 8 cm of left nipple. The wounds were triangular and edges were outverted. Naturally this was the wound caused by Ballam, which normally becomes triangular. The second stabbed wound was 1cm x 0.3 cm on the right side on the back of below 8 cm of right scapula. There was an abrasion of 8 cm x 4 cm on the back of right shoulder. The prosecution witnesses have stated that after sustaining Ballam injury, the deceased Phool Singh fell down on the earth. It has also come in evidence that he had fallen down on the earth in the chest side. It could depend on the dealing of the body of Phool Singh for putting him on the cot to proceed to Hospital for medical aid. The abrasion could be caused by fall also. There was possibility in that situation for sustaining abrasion on the backside of shoulder. Such minute situations were not expected to be observed  by the witnesses because in such situation, they might have been mentally disturbed. Each witness has stated that only one blow of Ballam was given by the accused Hakim Singh to the deceased but the dead body contained two stabbed wounds and according to the doctor, both wounds could not be caused by single blow because they had different directions. This fact that the Investigating Officer also found injuries on the back of right shoulder of deceased,  was also  mentioned in the inquest report, though from a different ink.

Learned counsel for the accused respondents has argued that there was a clear and major contradiction in the ocular testimony and medical evidence. When there is a contradiction between ocular testimony and medical evidence, the ocular testimony will prevail. The evidence which has come on record shows that the witnesses saw the accused Hakim Singh while wielding Bhala in the chest of deceased Phool Singh. The doctor found the injury there, but he also found one stabbed wound on the back of right shoulder also. No doubt, none of the witnesses has stated that he had seen the accused Hakim Singh while causing injury on the back of deceased by Bhala, but the injury was there. The Investigating Officer also mentioned this second injury on the body of deceased in the inquest report Ext. Ka-5. It appears that when the accused Hakim Singh wielded Bhala in the chest of deceased, it was but natural for the family members to become  disturbed and it appears that in that situation, another Bhala blow had been given to deceased Phool Singh and it could not be marked by the witnesses. The eye witnesses are truthful witness in regard to the assault made by accused Hakim Singh to the deceased. It cannot be said that another Bhala injury was not caused by Hakim Singh or was caused by anyone else. There was no occasion for the witnesses to conceal another injury on the right shoulder of deceased. The incident had taken place inside of the Chhapper of deceased, where a number of family members were there. The mar-peet took place suddenly. This can also not be said that the injury on the back of shoulder of deceased was not caused on the spot. The F.I.R. was lodged without delay and the Investigating Officer also reached the spot in the same night and while examining the dead body for preparing inquest report, he found stabbed wound on the right shoulder of the deceased. Every witness is not expected to observe all the things very minutely. As soon as the accused persons entered the house of deceased and started mar-peet, the atmosphere would have been charged and in that situation, possibly no one could see the second injury caused by Hakim Singh to the deceased.

The doctor who conducted the postmortem examination found semi-digested food in the stomach of deceased. Learned counsel for the accused-respondents has argued that when semi-digested food was found in the stomach of deceased, it was clear that he must have taken food before at least two hours, whereas the prosecution witnesses have stated that he had taken meal at 8.00 P.M. Learned counsel for the accused-respondents has further argued that the murder was committed at late hour and not at 8.30 P.M as disclosed by the prosecution. But this argument has no force. The rustic villagers state timing approximately and they cannot be expected to give exact time of every affair. Moreover, the process of digestion starts immediately after taking meal and the semi-digested food found in the stomach of the deceased indicates that the digestion process had already started.  What was actual state of semi-digested food was not ascertained. Even if for a moment, it is taken to be correct that the deceased had taken meal exactly at 8.00 P.M, even then, stomach would contain semi digested food because according to the prosecution case, the mar-peet took place at 8.30 P.M and after that the injured was alive for some period and when his family members were taking him to Hospital, he died in the way, meaning thereby, approximately or at least one hour time had been spent and when the deceased was alive, the process of digestion was continuing.

The evidence against respondents Jawahar Lal and Kamlesh Kumar is only this much that they had accompanied the main assailant, Hakim Singh. The F.I.R. version is that all the accused persons come to the house of deceased. Dularey Lal had country made pistol, Hakim Singh had spear and Kamlesh Kumar and Jawahar Lal had Lathis in their hands. Dularey Lal exhorted the other co-accused persons to kill the deceased, on which Hakim Singh wielded Ballam in the chest of deceased. No other role of Jawahar Lal and Kamlesh Kumar has been shown in the F.I.R except that they had accompanied Dularey Lal and Hakim Singh. The eye witnesses produced by the prosecution have also given same version in their statements on oath. No doubt, one of the motives for the crime has been assigned against Kamlesh Kumar but because of that motive, but no positive role has been assigned to him for committing this crime. As we have discussed earlier, the role of exhortation has been assigned to accused Dularey Lal and the role of actual assault has been assigned to accused Hakim Singh. Thus, presence of Kamlesh Kumar and Jawahar Lal on the spot becomes doubtful.

In view of our above discussion, we come to the conclusion that there is no force in the State Appeal against the accused-respondents Kamlesh and Jawahar Lal and the appeal against them is liable to be dismissed. But there is convincing evidence against respondent Hakim Singh. The learned trial court should have convicted him for the offence, punishable under Section 302/ 449 I.P.C. The appeal against Hakim Singh is liable to be allowed.

In the result, the appeal against the order of acquittal in question is allowed in respect of respondent Hakim Singh and he is held guilty for the offence punishable under Section 302 and 449 I.P.C. He is convicted for the offence, punishable under Section 302 I.P.C. and sentenced   imprisonment for  life. He is also fined Rs. 5000/ only and in default of payment of fine, he shall further undergo R.I. for six months. He is further convicted for the offence, punishable under Section 449 I.P.C. and sentenced to under go R.I. for one year and fined Rs. 2000/ only and in default of payment, he shall under go R.I for six months. All the sentences shall run concurrently.

The respondent Hakim Singh is on bail. His bail is cancelled and sureties are discharged. The C.J.M. Etawah is directed to issue non-bailable warrant of arrest against accused-respondent Hakim Singh and ensure compliance so that he may be sent to jail  to serve out the sentences awarded above. The compliance report within a month on receipt of copy of this order.

The appeal against respondent Dularey Lal stands abated and the appeal against respondents Jawahar Lal and Kamlesh is hereby dismissed.

Date: December 20th    ,2006

Sfa/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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