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2015 DIGILAW 392 (CAL)

Harun Rasid Ansari v. State of West Bengal

2015-05-04

ANIRUDDHA BOSE, SANKAR ACHARYYA

body2015
JUDGMENT : Sankar Acharyya, J. This appeal has been preferred by two appellants Harun Rasid Ansari and Gabla Dosad as appellant nos. 1 and 2 respectively challenging the judgment and order of conviction and sentence dated 9.7.2014 passed against them by the learned Additional Session Judge 3rd Court, Purulia in Sessions Case No. 102 of 2010 corresponding to Session Trial No. 31 of 2010. In the said judgment both the appellants have been convicted of the charge under Section 302 of the Indian Penal Code and sentenced to suffer life imprisonment with fine of Rs. 5000 each and in case of non-payment of fine simple imprisonment for three months more. Other 11 accused persons have been found not guilty and acquitted of the charges under Sections 148/302/326/149, I.P.C. in the impugned judgment. Said acquitted part of the judgment is not under challenge by either party. 2. Contending inter alia the appellants have contended that the learned Trial Judge has committed grave error of law, convicting and sentencing the appellants and that the PW 5 who is the informant of the case has not been corroborated by any independent evidence which fact has not been taken into consideration in the impugned judgment. Appellants have also contended that state prosecution respondent failed to prove the place of occurrence and the alleged facts of the FIR but without considering the same impugned judgment and orders have been passed. The impugned judgment and orders are bad in law and liable to be set aside which has been claimed by the appellants in their petition for appeal. During pendency of this appeal, appellant No. 2 Gabla Dosad has been granted bail while the appellant No. 1 remains in correctional home as appears from the record. 3. Moot questions for determination in this appeal as per arguments advanced by learned Advocate for the appellants is whether the learned Trial Judge failed to appreciate the reality of the evidence on record and whether the impugned judgment of conviction and sentence has been erroneously delivered on the basis of hearsay statement or not. Learned Advocate for the appellants has claimed that none of the witnesses of state respondent can be considered as eye-witness of the alleged occurrence. The other determining question is whether the ingredients for convicting a person under Section 302, I.P.C. have been fulfilled and whether appellant Gabla Dosad can be held guilty of any offence. Learned Advocate for the appellants has claimed that none of the witnesses of state respondent can be considered as eye-witness of the alleged occurrence. The other determining question is whether the ingredients for convicting a person under Section 302, I.P.C. have been fulfilled and whether appellant Gabla Dosad can be held guilty of any offence. 4. The facts of the case as appears are that on 4.6.2000 at 12:05 hours, one Biswanath Bouri (PW 5) lodged a written information at P.S. Para in the District of Purulia with a complaint that 11 accused persons including the present two appellants of village Bajkatara were engaged as labourers by a contractor for manufacturing of concrete cement slipper in a factory at New Colony near Anara Railway Station. Said accused persons did not intend to allow any other labour of other villagers to work in that factory. On 4.6.2000 at about 9:30 a.m. informant Biswanath Bouri along with Mansur and others went there to meet the contractor and they reached near Durga Temple at Anara New Colony. Accused persons being armed with Lathi, Tangi, Ballam (spear), iron-rod, arrow and bow assaulted them. Appellant No. 1 shot one arrow towards chest of Mansur in order to kill him and appellant No. 2 gave a blow of iron-rod forcefully on the head of Mansur causing injuries. The informant tried to resist them when appellant No. 2 assaulted him on the back side of his head. Then, the informant and others fled away therefrom out of fear. Mansur was lying there in injured condition. After about 30 minutes Mansur's brother Sahanaz Ansary and some others took Mansur on a vehicle for his treatment at Para Health Centre where Mansur was declared dead. 5. The matter was investigated by police and charge sheet under Sections 147/148/149/325/326/302, Indian Penal Code was submitted against 13 accused persons including 11 FIR named accused persons. Learned Trial Judge framed charges under Sections 148, 326/149 and 302/149 of the Indian Penal Code against 13 accused persons. During trial state respondent examined as many as 12 witnesses and adduced some documentary evidence. For the prosecution among the 12 witnesses 5 witnesses have been declared hostile by the state respondent and they have been cross-examined by both the parties. 6. Defence case of the accused persons as disclosed during trial is that they have been falsely implicated in the case and they are innocent. For the prosecution among the 12 witnesses 5 witnesses have been declared hostile by the state respondent and they have been cross-examined by both the parties. 6. Defence case of the accused persons as disclosed during trial is that they have been falsely implicated in the case and they are innocent. 7. In this appeal, undisputedly the charges under Sections 148/149/326/302, Indian Penal Code have not been proved against 11 acquitted accused persons and the charges under Sections 148/149/326, I.P.C. have not been proved against convicted and sentenced appellants. Each of the appellants has been found guilty independently of the charge under Section 302, I.P.C. 8. We are inclined to decide first as to whether appellant No. 2 can be held guilty of the charge under Section 302, I.P.C. or not. 9. According to the written complaint (FIR) lodged by PW 5 Biswanath Bouri, the appellant No. 2 Gabla Dosad gave blow with iron rod forcefully on the head of the victim as a result of which head was cracked. Mansur was lying in injured condition. After 30 minutes Mansur's younger brother Sahanar Ansary (PW 4) and others went there and took Mansur to hospital for treatment where Mansur was declared dead. 10. Significantly, PW 5 is the author of written complaint but the scribe of the said written complaint is one Tanmay Banerjee who was not examined as a witness of prosecution for which learned trial Judge has marked the signature of PW 5 only as exhibit - 1. According to learned Advocate for the appellants, the contents of the written complaint cannot be taken into consideration as a piece of evidence. On going through the written complaint on record it appears to us as an original document and under Section 62 of the Evidence Act it is a primary evidence and therefore, it is admissible under Section 64 of the Evidence Act. Let us see the version of the PW 5 who signed this document as author. In his deposition, he has stated that the complaint was written by one Tanmay Banerjee of Anara Railway Colony as per instruction of PW 5 and then contents of the complaint was read out by said Tanmay in Bengali and having ascertained it was correctly recorded PW 5 put his signature in Bengali on that complaint. Thus, PW 5 is not an illiterate person. Thus, PW 5 is not an illiterate person. During cross-examination PW 5 has stated nothing to disbelieve the fact of writing by Tanmay Banerjee and signing the complaint by PW 5 and its lodging at P.S. by PW 5. Therefore, we believe that written complaint as documentary evidence exists and it has been duly proved under Section 3 of the Evidence Act. We hold that learned Trial Judge should have marked the whole written complaint and not only the signature of PW 5 as exhibit - 1. We are satisfied to look into the contents of the written complaint though we do not hold that the truth has been proved by this document. 11. It is needless to say that the written complaint that is FIR (hereinafter referred to as exhibit - 1 in this judgment) is not a substantive piece of evidence but it is a document to be used for corroboration or contradiction as the case may be. In the instant case, we hold that when PW 5, being author of the written complaint and not an illiterate person, rather conversant with the language used for writing it admits his signature and writings as under his instruction done correctly which he ascertains on being read over it by scribe then non-examination of scribe Tanmay Banerjee is of no consequence. 12. According to state respondent, PW 5 is the eye witness of the occurrence. This PW 5 has stated that he (PW 5) was assaulted on the back of his head with iron rod by Gabla Dosad which has been disbelieved in the impugned judgment. Surprisingly, PW 5 has not stated anything in his deposition about assault by appellant No. 2 Gabla Dosad on the victim Mansur. Thus there is no substantive evidence of eye witness about any assault on the victim by accused Gabla Dosad. In fact, there is no substantive evidence in support of the charge under Section 302, I.P.C. against appellant Gabla Dosad. Learned Trial Judge has found him guilty of that charge on the basis of allegation made in exhibit - 1. Thus there is no substantive evidence of eye witness about any assault on the victim by accused Gabla Dosad. In fact, there is no substantive evidence in support of the charge under Section 302, I.P.C. against appellant Gabla Dosad. Learned Trial Judge has found him guilty of that charge on the basis of allegation made in exhibit - 1. It is worthy to mention that according to exhibit - 1 Gabla Dosad assaulted on the head of Mansur by iron rod but the Autopy surgeon PW 8 and Post Mortem report (exhibit - 3) speak about incised wound by sharp cutting weapon on the scalp of the victim which is a serious contradiction to destroy the allegation against Gabla Dosad. Thus in no circumstances available on record it is acceptable that prosecution has been able to prove any charge against Gabla Dosad. We, therefore, discard the findings of the learned Trial Judge against Gabla Dosad. 13. Let it be considered now as to whether accused Harun Rasid Ansary, appellant No. 1 is guilty of any offence according to the materials brought by prosecution that is state respondent herein on record. 14. PW 1 Mitali Banerjee has been examined by prosecution to prove that she had seen one person with profuse bleeding from head being chased by some persons entered into R.P.F. barrack for taking shelter but PW 1 did not agree to having said about such knowledge. Prosecution has declared her as hostile witness. 15. PW 2 Mohan Kumar Das has been examined by prosecution to prove that while he was cooking at the canteen of R.P.F. he heard a noise on 4.6.2000 and when he came out he saw one injured person lying on the ground was being dragged towards northern vacant portion of the Barrack. But he has also not admitted such fact. He was produced for Test Identification Parrade but he could not identify any accused. This PW 2 has also been declared hostile by prosecution. 16. PW 3 Dilip Shai has been examined as assistant of PW 2 in R.P.F. canteen. But he has also not admitted such fact. He was produced for Test Identification Parrade but he could not identify any accused. This PW 2 has also been declared hostile by prosecution. 16. PW 3 Dilip Shai has been examined as assistant of PW 2 in R.P.F. canteen. He has been examined by prosecution to prove that on 4.6.2000 at about 9:10 a.m. near Durga Temple victim Mansur while being chased by some persons was running towards the barrack and fell down beneath a tree near barrack and at that time Mansur was bleeding profusely from head and he was dragged by those persons therefrom towards northern vacant portion of barrack. PW 3 has not stated about his knowledge of any such incident. He was also produced in Test identification Parrade but he also failed to identify any accused. He has also been declared hostile by prosecution. 17. As such, prosecution gets no support from PW 1, PW 2 and PW 3 for proving the case against accused. 18. PW 4 Sohanaj Ansary is cousin of victim Mansur. He is not an eye-witness of occurrence. According to him, he heard from one Nasib Ansary (not a PW) that some people of village Bajkartard assaulted Mansur around R.P.F. barrack and lifted him near that barrack. Since Nasib Ansary has not been examined by prosecution to say that he told such fact to PW 4 the aforesaid part of deposition of PW 4 becomes hearsay and inadmissible in evidence in view of the provision of Section 60, Evidence Act. However, PW 4 has also stated about his direct knowledge to the effect that he reached the spot and found Mansur. He talked with Mansur when Mansur had head injury and one arrow remained pierced on the left side of his chest. At that time Mansur expressed that he would not survive any more and so he desired to meet his children in his home for the last time. He also disclosed names of some accused of the case including appellant no. 1 Harun Rasid who attacked him. PW 4 took Mansur to Para Government Hospital where Mansur was declared brought dead. Remaining part of his examination-in-chief being hearsay is not discussed herein. He also disclosed names of some accused of the case including appellant no. 1 Harun Rasid who attacked him. PW 4 took Mansur to Para Government Hospital where Mansur was declared brought dead. Remaining part of his examination-in-chief being hearsay is not discussed herein. During his cross-examination it transpired that he was accompanied by Mansur's brother Mobarak Ansary (not examined by prosecution as a witness) and they found Mansur was lying under a "Bell" tree near R.P.F. barrack which is approximately 300 metres away from Anara Durga temple. 19. PW 6 Dipu Roy Chowdhury is another hostile witness of prosecution as claimed by the state respondent. According to PW 6 he is a resident of Bankura town but he stayed at Anara near old colony Durga Mandir as a tenant in a house from 1985 to 1998. Informant (PW 5) and this PW 6 belong to same political party. On the date of occurrence PW 6 along with PW 5, Mansur (victim) Amrit Sahis (PW 9) and some other activists of T.M.C. party were going to meet a contractor who was engaged in executing a project of manufacturing Railway slippers in order to get labour contract. On the way near Durga temple they had altercation with a group of labourers including appellant No. 1 Harun. After altercation PW 6 told PW 5 for leaving that place for trying to meet G.M. of Railways and PW 6 proceeded back to his house. During such altercation there was no incident of assault. Remaining part of his examination-in-chief is of no effect as the same is hearsay. During his cross-examination on behalf of prosecution nothing has come out to believe him as eyewitness of any incident of assault. He has denied the statements recorded by the investigating Police Officer in the name of PW 6. During his cross-examination by the defence he has admitted the distance between Durga temple and R.P.F. barrack is 300 yards. From the totality of his evidence we believe that on the date of occurrence in the morning hours there was an altercation near Anara Durga temple between two groups of people and that in one group Mansur (victim), PW 5, PW 6, PW 7 and other remained present while in the rival group appellant No. 1 Harun Rasid Ansary and others remained present. 20. PW 9 is also a hostile witness as claimed by prosecution. 20. PW 9 is also a hostile witness as claimed by prosecution. According to him, Mansur died on 4.6.2000. PW 9 has corroborated PW 6 in the matter of altercation, which has been stated by PW 6. He (PW 9) has added that they including Mansur (victim) were attacked by appellant No. 1 and others with "Gaity", spade and lathi. Eventually, PW 9, PW 5, PW 6 and Mansur of their group escaped for their lives in different directions. He has also stated that he heard from PW 5 about arrow injury and death of Mansur but he has not stated about his knowledge about the name of the person who actually caused the death of Mansur Ansary. He has been cross-examined by the prosecution side and also by the defence side. But, no remarkable evidence comes to our notice from the deposition of PW 9 in favour of prosecution. Rather, it appears from the deposition of PW 6 and PW 9 read with the evidence of the first investigating Police Officer Gouranga Chandra Sarkar (PW 12) as claimed by prosecution that neither PW 6 nor PW 9 stated before PW 12 during investigation that accused Harun Rasid Ansary shot arrow on the chest of the victim Mansur. It also appears from deposition of PW 9 and PW 12 as claimed by prosecution that the PW 9 stated before PW 12 during investigation that head injury of Mansur and his chest injury were caused in two different places and not at the same place which substantially contradicts PW 5 on whose evidence the prosecution gives emphasis. 21. PW 7 Himangshu Sannigrahi is a Police Constable. On 4.6.2000 he escorted the dead body receiving the same from PW 12 at Para Hospital to Purulia Sadar Hospital for Post Mortem examination and handed over it to Autopsy surgeon. After Post Mortem examination the Autopsy surgeon (PW 8) handed over blood stained clothes and one iron arrow to PW 7 which were brought by PW 7 and handed over to PW 12. Said materials were seized by PW 12 under a seizure list (exhibit- 2). Said seized materials were produced in Court during trial and identified by PW 7. It reveals from the deposition of PW 7 that one arrow was struck to the dead body at the time of handing over the dead body to PW 8 by PW 7. 22. Said materials were seized by PW 12 under a seizure list (exhibit- 2). Said seized materials were produced in Court during trial and identified by PW 7. It reveals from the deposition of PW 7 that one arrow was struck to the dead body at the time of handing over the dead body to PW 8 by PW 7. 22. PW 8 Dr. Arup Kumar Jas is the Autopsy surgeon who conducted the Post Mortem examination. He has corroborated PW 7. On examination of the dead body PW 8 found one scalp injury caused by sharp cutting instrument and an arrow was struck to the neck from left side piercing the inner left trachea wall and further cut left carotid artery and further left side of the neck muscles. In the opinion of PW 8, the death was caused due to haemorrhage from the left carotid artery and other injuries which are ante mortem and homicidal in nature and the injury caused by arrow was sufficient in the ordinary course of nature to cause death of a human being. PW 8 is fully corroborated by the Post Mortem report which has been marked exhibit- 3. 23. From the evidence of PW 7, PW 8 read with PW 12 and exhibit- 3 we are satisfied to hold and therefore, we hold that Mansur died due to shooting of an arrow on the vital part of his body by someone. 24. Question is who caused the said arrow injury. Prosecution has relied upon the deposition of PW 5 only as eye witness to prove the prosecution case beyond reasonable doubt to the effect that appellant no. 1 Harun Rasid Ansary is the person and none else caused the said injury. 25. It is the settled principle of law that required evidence is not to be counted but to be weighed. 26. Before entering into the discussion in the matter of charge Under Section 302, I.P.C. against appellant No. 1 Harun Rasid Ansary we would like to reiterate that prosecution has not been able to prove the charges Under Section 148/326-149/149, I.P.C. against the other accused persons and the charge under Section 302, I.P.C. against appellant No. 2 accused Gabla Dosad. 27. Let us examine the deposition of PW 5. 27. Let us examine the deposition of PW 5. This PW 5 has substantially stated that on 4.6.2000 in the morning at around 9:30 a.m. he along with PW 6, PW 9, Mansur (victim) and some others went to meet works contractor who was engaged in executing some project in concrete slipper factory at Anara asking him for job in the said project. This part of evidence of PW 5 finds substantial corroboration by PW 6, PW 9 and exhibit- 1. PW 5 has further stated that accused persons were armed with arrow, bow, spear, iron rods and tangi. Except the exhibit- 1 no evidence is found to corroborate it. According to PW 5, they were attacked by accused persons with those weapons. Although PW 9 has also stated about attacking them by accused persons but according to him, they were attacked with ‘Gaity’, spade and lathi. However, we may believe that PW 5, PW 6, PW 9 and Mansur were attacked by some persons including appellant No. 1 Harun Rasid Ansary. PW 5 has specifically stated that Harun Rasid Ansary shot an arrow towards Mansur, which pierced, on the left side of his chest. Mansur was lying on the spot with grievous injury and PW 5 and others dispersed from the spot. It is significant to note that PW 5 has stated that all the accused persons are day labourers and at the material point of time they were working in foundation work of concrete slipper factory. Within four corners of the record it does not appear that the appellant No. 1 and others received prior information about going of PW 5, PW 6, PW 9 and Mansur to that site in the morning of 4.6.2000 to meet contractor for getting job in that factory. As such, it is improbable that there was preplanned attacking with bow, arrow, spear, tangi etc. at that time by Harun Rasid Ansary and others. According to PW 5, the precise location of assault on them was New Colony in the vicinity of local Durga temple. PW 5 came to know that PW 4 went to the spot and removed Mansur to hospital. The PW 4 has not stated any particular name of accused as stated by Mansur as to who shot arrow on his person. PW 5 came to know that PW 4 went to the spot and removed Mansur to hospital. The PW 4 has not stated any particular name of accused as stated by Mansur as to who shot arrow on his person. According to the substance of examination-in-chief of PW 4, he found Mansur near Anara R.P.F. Barrack and at that place he found head injury and an arrow remained pierced on the chest of Mansur. According to his cross-examination he found Mansur lying under a ‘Bell’ tree near the barrack. According to PW 5, the incident of assault including shooting of arrow on Mansur took place at the same time and place where they were attacked. Immediately, except Mansur who was lying with grievous injuries on that spot, PW 5 and his companions became panicked and dispersed therefrom. Later he came to know that PW 4 went to that spot and removed Mansur to hospital. At page 2 the PW 5 has made clear that precise location of assault on them was in New Colony in the vicinity of Durga Mandir there. During cross-examination PW 5 has stated (page 3) that there is a metal road passing adjacent to Durga Mandir (temple) in north south direction and that from Durga Mandir if one travels around 50 feet to the north on the road and thereafter moves another 20 feet in western direction one would find railway quarters and on the north direction from that quarters R.P.F. Barrack would lie at a distance of around 70 to 80 metres and that in the vicinity surrounding the barrack there are many trees including a ‘Bell’ tree. In his cross-examination it has been recorded at page 5, "it is a fact that Harun Rasid did not shoot an arrow towards Mansur, which pierced the left side of his chest as a result of which he died". Learned Advocate for the appellants has given emphasis on that sentence during arguments and has claimed that said evidence demolishes the prosecution case against appellant No. 1. Since the said sentence stands in favour of the accused we cannot read the sentence as "it is not a fact..he died" even following the principle that evidence of a witness is to be considered as a whole and not by isolated scrutiny. Since the said sentence stands in favour of the accused we cannot read the sentence as "it is not a fact..he died" even following the principle that evidence of a witness is to be considered as a whole and not by isolated scrutiny. We do not find from the totality of evidence of PW 5 as to how Mansur reached under a "Bell" tree near Anara R.P.F. Barrack after falling down near Durga temple which is at a distance of around 300 feet according to PW 5. We would like to note that according to PW 12 and exhibit 5 series that is sketch map index and explanatory note prepared by PW 12. The distance between place of occurrence and R.P.F. Barrack is 300 yards that is three times more than the distance guessed by PW 5. As such a shadow of doubt is cast on the question as to whether PW 5 nearby saw any incident of shooting arrow by appellant No. 1. 28. To sum up, the entire evidence brought by prosecution goes uncorroborated and testimony of PW 5 is not so strong that basing upon his evidence only a person may be held guilty of an offence punishable under Section 302, I.P.C. for which capital punishment has also been prescribed in law. Before concluding our discussion we point out that the occurrence took place in broad day light in public place as claimed by prosecution. Therefore, we cannot believe that no independent witness would have been available to corroborate the PW 5. On that score also the prosecution case suffers from infirmity. Therefore, the veracity of PW 5 is not above reasonable doubt. Consequently, the prosecution case relating to the charge under Section 302, I.P.C. is covered under reasonable shadow of doubt. As a result, accused Gabla Dosad, appellant No. 2 herein is found not guilty of any charge brought against him in this case and he deserves acquittal. Appellant No. 1 Harun Rasid Ansary also cannot be held guilty of the charge under Section 302, I.P.C. and he is also found not guilty with a finding that he deserves acquittal. 29. Before concluding our discussion we like to note as to why we are unable to concur with the findings of the learned Trial Judge made in the impugned judgment. 30. 29. Before concluding our discussion we like to note as to why we are unable to concur with the findings of the learned Trial Judge made in the impugned judgment. 30. On going through the impugned judgment we are of the view that although the learned Trial Judge has observed at page 5 of the impugned judgment that there may be chances for presence of other people in surrounding places but did not insist for corroboration of PW 5. Learned Trial Judge has not believed the statement of PW 5 made in FIR relating to the allegation of assault on the head of PW 5 by appellant No. 2 Gabla Dosad. At pages 7 and 8 of the impugned judgment the learned Trial Judge has believed presence of PW 6 and PW 9, at the time of incident and simultaneously, it has been observed that their evidence did not get support in this case. At page 8 of the impugned judgment learned Trial Judge has observed that Mansur's brother Mobarak Ansary is a vital witness but has not been called by prosecution as a witness in this case. There is no material observation of the learned Trial Judge relating to withholding of such vital witness by the prosecution. At page 10 learned Trial Judge has observed in the impugned judgment that there appears some contradiction in the evidence of PW 5 and the I.O. (PW 12). He has mentioned the contradiction and has made a finding that had it been happened as stated by PW 12 regarding statement of PW 5 under Section 161, Cr.P.C. then FIR would have been otherwise. Such finding in a trial in connection with a charge under Section 302, I.P.C. cannot be upheld by us, sitting in Appeal. Significantly, the judgment of conviction and sentence has been passed by the learned Trial Judge on the basis of evidence of PW 5, informant and PW 12, the I.O. taking help of the deposition of the Autopsy Surgeon PW 8. Further discussion is a redundant. We find and hold that the impugned judgment and orders dated 9.7.2014 of conviction and sentence of the two appellants Harun Rasid Ansary and Gabla Dosad is liable to be set aside and each of them deserves acquittal. Accordingly, this appeal succeeds. 31. Hence. ORDERED 32. That this appeal is allowed. Further discussion is a redundant. We find and hold that the impugned judgment and orders dated 9.7.2014 of conviction and sentence of the two appellants Harun Rasid Ansary and Gabla Dosad is liable to be set aside and each of them deserves acquittal. Accordingly, this appeal succeeds. 31. Hence. ORDERED 32. That this appeal is allowed. We set aside the impugned judgment and orders of conviction and sentence dated 9.7.2014 passed by learned Additional District and Sessions Judge, 3rd Court, Purulia in Sessions Trial No. 31 of 2010 arising out of Sessions Case No. 102 of 2010. Both the appellants are found not guilty of the charge under Section 302, I.P.C.. Let them be acquitted of the charge under Section 302, I.P.C. and they be released without delay. Department is directed to inform all concerned forthwith for compliance of this judgment and order of acquittal. 33. Copy of this judgment alongwith LCR be sent to the Court of learned Additional Session Judge, 3rd Court, Purulia with a direction for issuing release order of the appellant No. 1 from custody and appellant No. 2 from bail bond promptly on receiving copy of this judgment. The appellants are set at liberty. 34. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Bose, J. - I agree. Appeal is allowed.