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2022 DIGILAW 1678 (BOM)

Nivrutti Ninaji Ghule v. State of Maharashtra

2022-07-12

G.A.SANAP, SUNIL B.SHUKRE

body2022
JUDGEMENT : G. A. SANAP, J. 1. In this appeal, challenge is to the judgment and order dated 28th December, 2018 passed by the learned Additional Sessions Judge, Khamgaon, Dist. Buldhana, in Sessions Trial No. 45 of 2013, whereby the learned Judge has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Rs.500/-. In default of payment of fine, he is ordered to suffer rigorous imprisonment for one month. 2. The facts leading to this appeal are as follows : The informant (PW1) is the father-in-law of deceased Sharda. The incident occurred on 23rd of April, 2013 around 12.15 p.m. The appellant is the nephew of the informant. The facts recorded in the first information report have unfolded the incident. The appellant was raising dispute with the deceased and Shrawan, husband of the deceased, for vacating the land. The informant on the date of incident went to Khamgaon to see his daughter’s son, who was admitted in the hospital. At about 1.00 p.m. Laxman Paraskar (PW8) made a phone call to him and informed him that the appellant had assaulted his daughter-in-law by axe. Laxman (PW8) requested the informant to come back immediately. Informant (PW1) came back to his village. He saw that crowed gathered in front of the house. He saw his daughter-in-law Sharda was lying in the bathroom in a pool of blood. She had sustained injuries on her head, neck and on back. The informant went to Jalamb police station and lodged the report of incident. On the basis of this report, a crime bearing No.21/2013 came to be registered. 3. Santosh Tale (PW13), Assistant Police Inspector, attached to Jalamb Police Station, conducted the investigation. He visited the spot of the incident and drew the spot panchanama. He also held the inquest of the dead body. He collected and seized the blood and blood mixed soil samples from the spot. He forwarded the dead body to the General Hospital, Khamgaon for post mortem. He arrested the appellant and seized the clothes worn by him. The appellant during the course of investigation made a confession which led to the discovery of axe used by the appellant for commission of the crime. He forwarded the dead body to the General Hospital, Khamgaon for post mortem. He arrested the appellant and seized the clothes worn by him. The appellant during the course of investigation made a confession which led to the discovery of axe used by the appellant for commission of the crime. The Investigating Officer recorded the statements of the witnesses and on completion of the investigation, filed charge-sheet in the Court of learned Judicial Magistrate, First Class, Shegaon. 4. Since the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of learned Additional Sessions Judge, Khamgaon. On committal, the learned Additional Sessions Judge framed the Charge at Exhibit-2. The Charge was read over and explained to the appellant. The appellant pleaded not guilty. The defence of the appellant is of total denial and false implication in the case. 5. In order to bring home the guilt against the appellant, the prosecution examined 13 witnesses. The prosecution relied on number of documents. The learned Additional Sessions Judge, on consideration of the material on record, found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and sentenced him as above. Being aggrieved by the judgment and order of conviction, the appellant is before this Court in appeal. 6. We have heard Shri M. L. Chouhan, learned Advocate appointed for the appellant and Shri M. J. Khan, learned Additional Public Prosecutor for the State. With their able assistance we have gone through the entire record and proceedings. 7. The first plank of the submission of the learned advocate for the appellant is that the evidence adduced by the prosecution is not sufficient to prove the charge against the appellant. Shri Chouhan, learned advocate for the appellant took us through the evidence of the witnesses and submitted that there are major omissions, contradictions and inconsistencies in the evidence of the witnesses examined by the prosecution to prove the actual occurrence and the involvement of the appellant in commission of the crime. In the submission of the learned advocate for the appellant, the learned trial Judge has glossed over all these omissions, contradictions and inconsistencies. The learned advocate submitted that recovery of the weapon of the offence namely axe at the instance of the appellant has not been proved by cogent and reliable evidence. In the submission of the learned advocate for the appellant, the learned trial Judge has glossed over all these omissions, contradictions and inconsistencies. The learned advocate submitted that recovery of the weapon of the offence namely axe at the instance of the appellant has not been proved by cogent and reliable evidence. The second plank of the submission of the learned advocate is that the prosecution has failed to prove that the appellant had acted with pre-meditation or pre-planned to commit murder of the deceased. In the submission of the learned advocate for the appellant, at the most on the basis of the available evidence, the knowledge that the injuries inflicted by him would result into death of the deceased could be attributed to the appellant. The learned advocate submitted that therefore, offence of culpable homicide not amounting to murder, punishable under Section 304 Part-II of the Indian Penal Code would be made out against the appellant. 8. Shri M. J. Khan, learned Additional Public Prosecutor for the State submitted that there are two eye-witnesses to the actual incident of murder of the deceased at the hands of the appellant. The learned APP submitted that the evidence of the eye-witnesses despite searching cross-examination has remained unshaken. The learned APP submitted that there is other evidence to corroborate the evidence of eye-witnesses on the actual involvement of the appellant in commission of the crime. The learned APP submitted that the appellant had made a confession before the police officer and the said confession led to the discovery of weapon namely axe. The learned APP submitted that on the clothes worn by the appellant at the time of the incident, blood of the deceased was detected. The learned APP submitted that the appellant had inflicted three blows on vital parts of the body of the deceased and the deceased succumbed to those injuries within no time. In the submission of the learned APP, the intention of the appellant to commit murder of the deceased is writ large. The learned APP submitted that the offence of murder has been made out against the appellant. 9. We have made minute scrutiny of the evidence to appreciate the submissions advanced by the learned advocate for the appellant and the learned Additional Public Prosecutor for the State. 10. The learned APP submitted that the offence of murder has been made out against the appellant. 9. We have made minute scrutiny of the evidence to appreciate the submissions advanced by the learned advocate for the appellant and the learned Additional Public Prosecutor for the State. 10. At the outset, it would be necessary to consider the evidence of the Medical Officer who had conducted post mortem of the dead body of the deceased. Dr. Sachin Gadekar (PW12) at the relevant time was attached to the General Hospital, Khamgaon as a Medical Officer. He conducted post mortem of the dead body on 23rd April, 2013. On examination of the dead body, he found following external injuries – 1. There were three deep stab wounds as follows : i] Stab wound of size 8 x 3 x 5 cm over the posterior of neck with evidence of fracture of cervical spine. ii] Stab wound of size 5 x 3 x 3 cm on the right side of upper back near 10th rib. iii] Stab wound of size 5.5 x 3 x 3 cm on left side of back at 11th rib. 2. I could notice following wounds on the skull. i] There was evidence of CLW (Contused lacerated wound) on right and left parietal region of scalp size 5 x 2 x 2 cm. There were evidence of fracture of skull below the aforesaid both CLW of size 4 x 2 x 2 cm. ii] There was evidence lacerated wound over the left cerebral hemisphere with collection of blood inside the skull. 3] In the thorasic region there was evidence of laceration over the left lung of size 3 x 2 x 1 over posterior surface. 4] In the abdominal cavity there was evidence of laceration of both the kidneys approximately at the centre of size 3x2x2 cm. 11. Dr. Gadekar (PW12) has opined that the cause of death was due to grievous fatal injuries to the vital organs like brain, lungs and kidneys. He has stated that the injuries were ante mortem and sufficient to cause death. The post mortem report is at Exhibit-62. In Column no.21, the Medical Officer has mentioned that the blood was preserved as per police request. The clothes on the dead body, post mortem report and the blood sample were handed over to a Constable. Dr. He has stated that the injuries were ante mortem and sufficient to cause death. The post mortem report is at Exhibit-62. In Column no.21, the Medical Officer has mentioned that the blood was preserved as per police request. The clothes on the dead body, post mortem report and the blood sample were handed over to a Constable. Dr. Gadekar (PW12) has stated that the weapon of offence namely axe was sent to him with the queries by the Investigating Officer. He has stated that on inspection of the weapon and the injuries mentioned in the post mortem report, he opined that the injuries found on the body of the deceased could be caused by the said weapon. The Medical Officer at the time of his evidence identified the axe, which was sent to him for his opinion. Perusal of the evidence of the Medical Officer would show that the injuries had been caused on the vital parts of the body. The injuries were found sufficient to cause death in ordinary course of nature. The injuries were ante mortem. The cause of death and nature of death has been prima facie established on the basis of his evidence. Besides, there is other direct and corroborative evidence in order to come to a conclusion that the deceased died homicidal death. 12. The informant (PW1) is not an eye-witness to the incident. On the date of the incident he had gone to Shegaon to meet his grandson, who was admitted in the hospital. In his evidence it has come on record that he received a phone call about occurrence of the incident and therefore, he came back to his village. He found that the deceased was lying in the bathroom in a pool of blood. He found three major injuries on her body. He made enquiry with the people gathered on the spot. The eye-witnesses informed him about the occurrence of the incident. He, therefore, went to the police station and lodged the report. 13. Vikas Ghule (PW2) and Sudam Ghule (PW3) are the two eye-witnesses. The learned Additional Sessions Judge found the evidence of these two eye-witnesses worth credible and reliable. Vilas Ghule (PW2) has deposed that the appellant assaulted the deceased by means of an axe. He has stated that on the date of the incident at about 11.30 am, he went to the house of Sudam Ghule (PW3). The learned Additional Sessions Judge found the evidence of these two eye-witnesses worth credible and reliable. Vilas Ghule (PW2) has deposed that the appellant assaulted the deceased by means of an axe. He has stated that on the date of the incident at about 11.30 am, he went to the house of Sudam Ghule (PW3). He and Sudam were present in his house. Sudam was cooking poha. Within 15 minutes of his reaching the house of Sudam, they heard the cries “O maa O” ¼vks ek vks½ . After hearing the cries, they came out of the house. They saw that the appellant was inflicting the blows on Shardabai with an axe. The appellant, according to him, inflicted axe blows on waist and neck of the deceased. According to him, the incident occurred in the bathroom. He has categorically stated that the appellant inflicted three blows with an axe on the deceased. He has stated that after witnessing the incident he got frightened and rushed to call Shrawan, the husband of the deceased. He found Shrawan at a ‘pan tapri’ (kiosk). He narrated the incident to him. When they rushed back to the spot, they found that the deceased was lying in the bathroom. In his evidence, Vilas (PW2) has described the clothes on the person of the appellant at the time of the incident. He has stated that after inflicting the blows with an axe, the appellant fled from the spot. At that time, Sudam (PW3) went inside his house, which is adjoining to the house of the appellant. In his cross-examination, he was subjected to grueling inquiry. Perusal of his cross-examination would show that while answering the relevant questions he has reiterated and confirmed the incident. In his cross-examination, one omission has been recorded. In order to verify the correct factual opposition, we have perused his statement recorded by the police. In his statement before the police, he had stated that the appellant gave stroke of an axe to Shardabai on her neck, back and waist. We are satisfied that his omission was wrongly recorded. He has stated this fact to the Investigating Officer at the time of recording his statement. He is the close relative of the deceased as well as of the appellant. His house is in the vicinity of the spot. We are satisfied that his omission was wrongly recorded. He has stated this fact to the Investigating Officer at the time of recording his statement. He is the close relative of the deceased as well as of the appellant. His house is in the vicinity of the spot. No suggestion has been given in the cross-examination as to why he has deposed against the appellant who is his close relative. 14. Another eye-witness is Sudam Ghule (PW3). In his evidence, he has narrated the incident. He has categorically stated that when the incident took placed at about 12.00 to 12.15 pm, he was cooking poha. They heard the cries “O maa O” ¼vks ek vks½ from outside. They came out of the house and saw that the appellant was inflicting the blows with an axe on the deceased. Vilas (PW2) immediately rushed to call the husband of the deceased. He has stated that daughter of deceased namely Anuradha was crying and proceeding towards bathroom where her mother was lying. He has stated that he picked up Anuradha and brought her to his house. The appellant, according to him, was carrying an axe and therefore, he closed his door and latched it from inside. He was frightened. After some time people gathered on the spot and therefore, he opened the door. He has stated that the deceased was lying in a pool of blood in the bathroom. PW3 is the uncle of Shrawan. A probing cross-examination has been conducted. However not an iota of material has been brought on record to dis-lodge this witness from the first hand account of the incident narrated by him. This witness has categorically stated that Vilas (PW2) was present in his house and after hearing the cries of the deceased, they came out and saw that the appellant was inflicting blows on the deceased with an axe. 15. The only thing which can go against these two eye-witnesses is that after seeing the merciless assault on the deceased, they did not bother to intervene and save the deceased. The appellant at the time of the incident was 50 years old. It has come on record that the appellant was residing alone because his wife had left him due to the quarrel. Vilas (PW2) and Sudam (PW3) on the date of the incident were below 20 years of age. The appellant at the time of the incident was 50 years old. It has come on record that the appellant was residing alone because his wife had left him due to the quarrel. Vilas (PW2) and Sudam (PW3) on the date of the incident were below 20 years of age. They have deposed that after seeing the brutal attack they got frightened. Vilas (PW2) immediately rushed to call the husband of the deceased. Sudam (PW3) picked up the daughter of the deceased from the spot when he saw that the small girl was proceeding towards the place of the incident to see her mother and brought her in his house. In our opinion, the brutality of assault by the appellant on the deceased could have been a frightful sight for Vilas (PW2) and Sudam (PW3). They saw the merciless blows inflicted on the deceased by the appellant. They could see depravity of the appellant. In our opinion, therefore, their conduct would not weigh against PW2 and PW3 and affect their credibility. It is seen that they were natural witnesses. Their presence on the spot was natural inasmuch as the place of occurrence could be seen from the house of PW3. Both PW2 and PW3 have narrated the first hand account of the incident witnessed by them. Perusal of their evidence, more particularly their cross-examination, would show that not a slightest dent has been caused to their credibility. The incident of assault by the appellant with an axe on the deceased has been proved on the basis of the evidence of these two eye-witnesses. We do not see any reason to discard and disbelieve the evidence of these two witnesses. 16. The next important witness, who has deposed in the case to corroborate the version of Vilas (PW2) and Sudam (PW3), is Pankaj Paraskar (PW9). It is the case of the prosecution that after brutal attack on the deceased, the appellant fled from the spot with the weapon of the offence. Pankaj (PW9) has stated that his father is a Police Patil. He has stated that on 23rd April, 2013 at about 12.30 to 12.45 pm he was took lunch at his house. His parents had gone to Nandura to attend the meeting of Anganwadi work. After completion of his lunch, he was sitting in the house. Pankaj (PW9) has stated that his father is a Police Patil. He has stated that on 23rd April, 2013 at about 12.30 to 12.45 pm he was took lunch at his house. His parents had gone to Nandura to attend the meeting of Anganwadi work. After completion of his lunch, he was sitting in the house. He has stated that the appellant came to his house holding an axe stained with blood. The appellant made enquiry about his father. He has stated that the appellant requested him to take axe in his possession. He has stated that he told the appellant that he would not take it and he should go to the police station. He has categorically deposed that the appellant disclosed to him that he had killed Sharda by axe. He has stated that after the appellant left his house, he made a phone call to his father and informed him about the incident. It has come on record in his cross-examination that his house is at the distance of five minutes walk from the house of the informant (PW1). While recording his statement by police he has not specifically disclosed that the appellant told him that he had killed Sharda. The omission was in respect of the name of the deceased. The witness had stated before the police that the appellant told him that he killed “vairi”. It is to be noted here that the deceased was the wife of the nephew of the appellant. It can be seen that in that part of Buldhana district, daughter-in-law is called as “vairi”. In view of this, the omission is not material. Pankaj (PW9) has narrated in great detail the extra-judicial confession made by the appellant to him. It is undisputed that the father of Pankaj (PW9) is a Police Patil. The appellant, it seems that, after realizing the blunder committed by him, went to the house of Police Patil, but the Police Patil was not found at the house. His son Pankaj (PW9) was found and the appellant narrated killing of the deceased by him with an axe. PW9 saw that the axe carried by the appellant was stained with blood. We do not see any reason to discard and disbelieve this witness. On appreciation of the evidence, possibility of planting this witness to support the case of the prosecution has been completely ruled out. 17. PW9 saw that the axe carried by the appellant was stained with blood. We do not see any reason to discard and disbelieve this witness. On appreciation of the evidence, possibility of planting this witness to support the case of the prosecution has been completely ruled out. 17. Evidence of the eye-witnesses namely Vilas (PW2) and Sudam (PW3) has proved the actual incident and the complicity of the appellant in commission of crime. This part of the incident and conduct of the appellant after the brutal murder has been proved on the basis of evidence of Pankaj (PW9). It would, therefore, be necessary to consider the other corroborative evidence. 18. The clothes of the deceased were seized. The blood and blood mixed soil from the spot were also seized. During the course of investigation, the blood sample of the appellant was collected. It is the case of the prosecution that after arrest of the appellant, he made a confession and on the basis of his confession, an axe was recovered. The appellant was arrested on the same day of the incident at about 20.45 hours. On his arrest, the clothes namely yellow colour payjama and bluish colour sando baniyan were seized. The seizure panchanama of the clothes on the person of the appellant is at Exhibit-37. The appellant made a confession on 25th of April, 2013 in presence of the panch witnesses and the Investigating Officer. Arvind Paraskar (PW7) is the panch witness to the memorandum and discovery panchanama. 19. Perusal of the evidence of Arvind Paraskar (PW7) would show that on 25th of April, 2013, he was called by the police to act as a panch witness. He has stated that one Murlidhar was another panch. He has stated that the appellant had confessed that he would point out the place where the weapon (axe) was concealed by him. Exhibit-42 is the memorandum panchanama. He has stated that the appellant led the panchas and police to an agricultural land of one Amol. The appellant in their presence took out an axe from the heap of sprinkler pipes. The only discrepancy which has been brought on record in his cross-examination was in regard to the timing of recording of the memorandum and discovery panchanama. He has stated that the appellant led the panchas and police to an agricultural land of one Amol. The appellant in their presence took out an axe from the heap of sprinkler pipes. The only discrepancy which has been brought on record in his cross-examination was in regard to the timing of recording of the memorandum and discovery panchanama. In his cross-examination, he has stated that memorandum panchanama was prepared after 11.00 a.m., whereas the memorandum panchanama would show that it was prepared between 8.25 am and 8.45 am. He has stated that the discovery panchanama was prepared after 11.00 a.m., whereas perusal of the discovery panchanama would show that it was commenced at 10.10 am and completed at 10.45 am. On the basis of difference of timings, it was submitted that recovery of the weapon pursuant to the confession of the appellant and at the instance of the appellant is doubtful. In our opinion, evidence of Arvind (PW7) and evidence of the Investigating Officer if read together would show that the discrepancy as to the time is not material. There is difference of about two hours in the timings mentioned in the panchanamas and as deposed by Arvind (PW7) in the Court. The evidence on record would show that the axe was found stained with blood. The blood group of the blood found on the axe was of group “A”. In the totality of the evidence brought on record and in the circumstances, we do not see any reason to discard and disbelieve the aspect of recovery of weapon axe at the instance of the appellant. Evidence of Pankaj (PW9) to whom the appellant wanted to handover the axe stained with blood, fully corroborated the evidence of recovery of axe stained with blood. 20. Let us now discuss the other corroborative evidence. The Investigating Officer has stated that the articles seized in the crime were sent to the Chemical Analyser for analysis. The CA reports are at Exhibits-76, 77 and 78. The report Exhibit-76 would show that the clothes seized from the body of the deceased and the clothes seized from the appellant were found stained with blood of group “A”. Similarly, it would show that the blood found on the axe was of group “A”. The CA report at Exhibit-77 would show that blood group of the appellant is of group “A”. Similarly, it would show that the blood found on the axe was of group “A”. The CA report at Exhibit-77 would show that blood group of the appellant is of group “A”. The CA report at Exh.78 would show that blood group of the deceased was also of group “A”. On the basis of these documentary evidence it is submitted by the learned advocate for the appellant that this evidence cannot be used against the appellant. We are not prepared to accept this submission. The appellant was arrested by the Investigating Officer on the day of the incident. There were no bleeding injuries or any injury on the body of the appellant at the time of his arrest. It is not suggested in the cross-examination of any of the witnesses that the appellant had sustained bleeding injury and therefore, the blood found on his clothes was his own blood. It is further pertinent to mention that the blood of group “A” was detected on the axe. There was no injury on the person of the appellant at the time of his arrest. The blood group of the deceased was of group “A”. It can, therefore, be stated with certainty that the blood detected on the axe was of the deceased. This evidence, in our opinion, corroborates the evidence of eye-witnesses Vilas (PW2) and Sudam (PW3) and the evidence of Pankaj (PW9). 21. On re-appreciation of the entire evidence, we do not see any reason to discard and disbelieve the evidence. On the basis of the evidence on record, it has been proved that the appellant was the author of the injuries sustained by the deceased. The weapon used by the deceased for causing injuries has been proved to be an axe. The Medical Officer in his evidence has stated that the injuries found on the body of the deceased could be caused by an axe. It has come on record that the Investigating Officer had forwarded the axe to the Medical Officer and obtained his opinion. In this case, therefore, the complicity of the appellant in the commission of the crime has been proved beyond reasonable doubt. 22. It would now be necessary to deal with the submissions advanced by the learned advocate for the appellant on the aspect of the actual offence made out against the appellant. In this case, therefore, the complicity of the appellant in the commission of the crime has been proved beyond reasonable doubt. 22. It would now be necessary to deal with the submissions advanced by the learned advocate for the appellant on the aspect of the actual offence made out against the appellant. In order to seek support to his submission that the offence made out against the appellant would be culpable homicide not amounting to murder, he has placed reliance on three reported decisions, namely : 1] Ankeri. vs. State of Rajasthan, reported in 1994 AIR 842. 2] Kulesh Mondal. vs. State of West Bengal, reported in AIR 2007 SC 3328. 3] Nazir Malitha and others. vs. State of West Bengal, reported in 2019 All SCR (Cri) 1267. 23. We have perused the decisions relied upon by the learned advocate for the appellant. The proposition which is culled out from the aforesaid decisions is that if the intention of the accused either proved or unfolded was not to commit murder but to cause some grievous injury, the offence punishable under Section 304 Part-II of the Indian Penal Code would get attracted. It is further held that if there is direct evidence or some evidence to infer that the act was committed in the course of sudden quarrel without any pre-meditation, then in that event such an act would fall within Explanation – 4 of Section 300 of the Indian Penal Code, warranting punishment under Section 304 Part-I or Part-II of the Indian Penal Code. 24. In this case, the intention of the appellant would be required to be gathered from the nature and manner of the assault on the deceased by the appellant. Similarly, the weapon used by the appellant would also be required to be taken into consideration while considering the state of mind of the appellant at the time of the incident. It is nobody’s case that the deceased either quarrelled with the appellant or insulted him in any manner before the actual occurrence of the incident. The informant (PW1) has deposed that there was a dispute between the appellant on one hand and the deceased and her husband on the other hand on account of vacating the land. This fact would show that the appellant wanted the deceased and her husband to vacate his land and on that account there was a dispute. The informant (PW1) has deposed that there was a dispute between the appellant on one hand and the deceased and her husband on the other hand on account of vacating the land. This fact would show that the appellant wanted the deceased and her husband to vacate his land and on that account there was a dispute. This, in our view, would be the motive for the appellant to commit this brutal crime. The appellant inflicted three blows on the vital parts of the body of the deceased. The deceased, as can be seen from the evidence of the Medical Officer, died instantaneously. The injuries were on vital parts of the body. The appellant did not give her a chance to move or defend herself. The prosecution has proved the brutality and depravity of the appellant. He had preplanned the attack and therefore, he came there with an axe. The intention, therefore, of the appellant has been proved to be to eliminate the deceased. Therefore, in this case, the offence made out is murder of the deceased by the appellant, punishable under section 302 of the Indian Penal Code. In the teeth of the available evidence, we are not convinced to accept the submission advanced by the learned advocate for the appellant that the offence proved in this case would be culpable homicide not amounting to murder punishable under Section 304 Part-II of the Indian Penal Code. 25. In view of the above, we hold that there is no substance in the appeal. The learned Additional Sessions Judge, Khamgaon has recorded the cogent reasons in support of his findings. On re-appreciation of the evidence, we do not see any reason to take a view different from the one taken by the learned Additional Sessions Judge. The appeal, therefore, fails. The same is accordingly dismissed. We appreciate the able assistance extended by learned advocate Shri M.L. Chouhan appointed for the appellant by the Court and the learned Additional Public Prosecutor for the State. Shri M. L. Chouhan, learned advocate appointed for the appellant is entitled to receive his fees from the High Court Legal Services Sub Committee, Nagpur, which is quantified at Rs.15,000/-.