Babu Lal Pasi @ Guruji vs State Of U.P.
2013 Latest Caselaw 2195 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(Reserved)
 

 
Criminal Appeal (From Jail) No. 750 of 2010
 

 
Babu Lal Pasi alias Guruji
 

 
Versus
 

 
State of U.P.
 

 
Hon Imtiyaz Murtaza J
 
Hon V.C.Gupta, J
 

 
(Delivered by Hon'ble Imtiyaz Murtaza, J.)
 

 

 
	Present Appeal has been preferred from Jail assailing the judgment and order dated 1.2.2010 rendered in S.T. No. 70 of 2007 by the Addl. District and Sessions Judge, Hardoi whereby the appellant has been convicted for offences under section 377/302/201 IPC and sentenced to undergo imprisonment for life studded with fine of Rs 1,20,000/-with default stipulation of undergoing six months RI for failure to pay fine.
 

 
	The author of the FIR in the instant case is Ramendra Kumar Yadav son of Kanhai Lal, a native of village Deoria Purvi Mazra Naya Gaon, which lies within the circle of PS Beniganj District Hardoi. The FIR in the case was lodged at PS Beniganj by the aforesaid complainant on 11.10.2006 at 6.20 pm. Briefly sketched the facts of the case are that on 11.10.2006 between 12 noon and 1 pm, the accused Babu Lal Pasi alias Guruji had taken the deceased Chhotu aged 8 years and his younger brother Akash aged 4 years from his house in the presence of complainant's wife, his brother Suresh Kumar and one Raghna son of Lochan Pasi of the same village on the pretext of giving them bath in the rivulet situated towards south of the village called Gharehara Nallah. It is alleged that after a shortwhile, his younger son Akash returned to home with the cloths of the deceased and on being asked about the whereabouts of Chhotu, Askash informed that Babu Lal Pasi had taken Chhotu across the rivulet by propping him up on his shoulders. Immediately thereafter, the complainant alongwith others left in search of the accused and also his son Chhotu. It is alleged that when his son Chhotu and accused were no where traceable they went to nearby village Deoria West where they noticed accused Babu Lal hiding behind grocery shop of Kripali Pasi and on being confronted about Chhotu, initially, he gave evasive replies but subsequently, he broke down informing that since he was possessed by an evil spirit, he had killed Chhotu by pressing his neck and by hitting hard object against his ear and that evil spirit in him also tried to suck blood of the deceased. On this revelation, the accused was taken to the place which was in the thicket across the rivulet, the body was recovered from the thicket across the rivulet/brook at about 5 pm. It is also alleged that accused Babu Lal was a regular visitor to the village where he used to display tricks entertaining the children and this attracted the village children to him.
 

 
	The accused abjured the guilt submitting that he has been falsely nominated in the case by the complainant further submitting that on the day of occurrence he was not present in the village and had gone to the house of his uncle in village Deoria namely Ram Dayal and that there was animus between his uncle Ram Dayal and the complainant on account of litigation which had erupted between them and that in the ongoing litigation, he used to assist his uncle on account of which the complainant bore grudge against him. He also submitted that on mere suspicion, he was forcibly picked up from the house of his uncle and was made to confess to a crime which he had not committed on pain of severe beating.
 

 
	The Investigation of the case was conducted by SO L.D Bharti who is arrayed as PW 6. It may be noted that after completing formalities of investigation, charge sheet was submitted in Court under section 377/302/201 IPC as against accused person.
 

 
	The prosecution in order to prop up its case, examined PW 1 Ramendra Kumar Yadav, who is complainant in the case, PW 2 Suresh Kumar, brother of the complainant, Pw 3 Raggha a native of village in whose presence the deceased was taken by the accused, PW 4 Sheru, a native of the same village, PW 5 Moharrir Cost Pramod Kumar Mishra, PW 6 SO L.D. Bharti, PW 7 Akash, brother of deceased Chhotu, PW 8 Dr SC Kaushal, and PW 9 Dr D.K.Dixit.
 

 
	The Sessions Judge after appraisal of evidence on record, recorded verdict of conviction against the appellant.
 

 
	We have heard learned counsel for the appellant and also learned AGA at prolix length. We have also been taken through the materials on record.
 

 
	The learned counsel for the appellant assailed the conviction on the ground that the the prosecution case is quite improbable as no family members would permit their children to go with complete stranger on the pretext as put forth in the FIR further submitting that the prosecution is completely a figment of imagination. It is also submitted that there was no strong motive impelling the accused to have committed the murder of the deceased and further that there was enmity between the accused and the family of deceased. The learned counsel also submitted that the injuries on the person of the accused do indicate that he was subjected to severe beating and forced to confess the crime which he had not committed. The learned counsel also assailed the investigation submitting that it was shoddily conducted.
 

 
	Per contra, learned AGA canvassed for correctness of the decision recording conviction against the appellants urging that the circumstances as brought on record fully point to the guilt of the accused.
 

 
	In order to appreciate the rival contentions, it would be but proper to independently scrutinize the oral as well as documentary evidence on record. 
 

 
	PW 1 Ramendra Kuamr Yadav reiterated the version as contained in the FIR  He deposed that the accused had taken complainant's two sons for giving them bath in the rivulet and when his younger son returned with the cloths of deceased, he enquired from his younger son Akash about the whereabouts of Chhotu upon which Akash informed that the accused had taken Chhotu on his shoulder across the rivulet. He also deposed that he immediately left in search of his son Chhotu. He also deposed that he saw the accused taking bath in the rivulet attended with further deposition that when he enquired about his son from the accused, he (accused) escaped towards village Deoria. In the meanwhile, he further deposed, the other village people also arrived at the scene. He also deposed that after assiduous search, the body of his son Chhotu was found across the rivulet. Thereafter, he alongwith village people went to village Deoria where the accused was found hiding behind the grocery shop of Kripali Pasi. Upon sustained interrogation, the accused revealed to have committed the murder of the deceased. He also deposed that the accused was made to sit at the village. He also deposed that in the meanwhile, Vinod Pandey of village Kakarhiya also arrived at the village who prepared the written report on his dictation. Thereafter, he also deposed, the written report was submitted at the police station on the basis of which FIR came to be registered at police station. He also deposed that thereafter, the police arrived at the village and took the accused into custody.
 

 
	During cross examination, he denied the suggestion that there had erupted any litigation between him and Din Dayal. He stated that his sons had gone alongwith accused Babu Lal to take bath in the rivulet. He also deposed that when his younger son returned he told this fact to his mother and not to him. When he came to know from his younger son, he immediately left searching for his son Chhotu. He also stated that on his arrival at the rivulet, he found the accused taking bath in the rivulet and on being confronted, he initially gave evasive replies. He denied the suggestion that his son Chhotu had gone all alone to take bath in the rivulet and died due to drowning. He also denied the suggestion that body of his son Chhotu was nibbled at/mauled by the fishes or tortoise indwelling the rivulet. He also denied the suggestion that the accused was nominated as a perpetrator of crime on mere suspicion.
 

 
	PW 2 Suresh Kumar is the brother of the complainant. He put weight to the deposition of PW 1. In his deposition he stated that when the body of Chhotu deceased was found, injuries were quite visible. He also stated that anus of deceased Chhotu had also injuries which was indicative of the fact that the deceased was sodomised before being killed. He also deposed that the accused had also confessed before them that he had committed sodomy on the deceased.
 

 
	During cross examination, he stated that he found accused Babu Lal hiding behind the grocery shop of Kripali Pasi. On being confronted, he initially gave evasive replies but when he was subjected to beating, he confessed to his crime and revealed the events leading to crime. He also offered to have the body recovered. He denied the suggestion that the deceased had gone to take bath in the rivulet and got drowned and his body was mauled by fishes or tortoise etc. He also denied the suggestion that accused Babu Lal had not committed sodomy on the deceased. He also denied the suggestion that on mere suspicion, the accused was nominated in the case.
 

 
	PW 3 Raggha who is native of the same village, deposed that on the day of occurrence, the accused had taken the children on the pretext of giving them bath in the rivulet. He also deposed that at the time when accused took the children, he, Ramendra Suresh and wife of Ramendra were present. He also deposed that after some time, Akash the younger son of Ramendra Yadav returned and informed that the accused had taken Chhotu across the rivulet by propping him up on his shoulders. He also deposed that Ramendra and others had gone in search of Chhotu. He also deposed that Ramendra and others came back to the village alongwith the body of deceased Chhotu sometime in the evening. He also deposed that Babu Lal accused had been apprehended by the village people and he had also been brought  to the village.
 

 
	In the cross examination,he stated that he used to earn his livelihood by doing odd jobs and on the day of occurrence, he was present at his house. He also stated that at the relevant time, he was sitting at his door step. He also deposed that he was a bespectacled person and denied that he had any dispute with Ramendra Singh and rather he stated that they were on interacting terms. On being asked, he stated that he did not make any queries from the accused why he was taking children. He denied that accused had ever taken sons of Ramendra Singh prior to the occurrence. He denied that he had seen the actual commission of crime and whatever he stated about murder of the deceased it was based on hearsay. He admitted that the expenses of his journey had been incurred by Ramendra Singh. He denied the suggestion that he was deposing falsely on account of his intimacy with Ramendra Singh.
 

 
	PW 4 Sheru deposed that the accused was known to him. He also deposed that at the relevant time he was working in his field and he had seen the accused alongwith the deceased. He also deposed that after some time he saw Akash coming back upon which he enquired about the whereabouts of Chhotu. He deposed that Akash told him that Babu Lal had taken Chhotu on his shoulder across the rivulet for bathing. He also deposed that thereafter, they embarked upon search for Chhotu. He also deposed that Babu Lal was found in village Deoria near the shop of Tripali Pasi. He further deposed that initially, the accused gave evasive replies but when he was given beating, he disgorged the truth. At the time of recovery of body, he deposed, there were injuries on the buttock of the deceased and when the accused was confronted, he revealed that he had committed sodomy.
 

 
	During cross examination, he denied the suggestion that he was deposing falsely that he had seen the accused taking the deceased for giving him bath in the rivulet/brook. He also denied the suggestion that the accused had not confessed in his presence about the factum of sodomy on the deceased. He also denied the suggestion that he was deposing falsely in the case actuated by being one belonging to the community of Ramendra Singh.
 

 
	PW 5 Pramod Kumar Misra being posted as Moharrir at the police station had completed all proceeding leading to registration of FIR. This witness is a formal witness.
 

 
	PW 6 is L.D Bharti who was then posted as SO PS Beni Ganj. After registration of the case, this witness had conducted investigation in the case.
 

 
	During cross examination, he stated that after registration of the case he had arrived at the scene of occurrence. He also stated that at the time of occurrence, there was enough water in the rivulet/brook and the body was found towards south of the rivulet. He also stated that he had approached the body after crossing over the rivulet and at that time, there was knee deep water in the rivulet. He also stated that by the time he arrived at the scene of occurrence, the accused had also been apprehended by the village people. He denied the suggestion that the accused had been brought to the police station at the time of lodging of the FIR. He also denied the suggestion that he had arrived at the scene of occurrence alongwith the accused person. He also stated that he had taken statement of the accused at the village separately and not in the presence of village people. At that time, accused had injuries on his person. He also stated that he did not enquire from the accused how he sustained the injuries. He denied the suggestion that he completed all the proceeding at the police station.
 

 
	PW 7 is Akash. At the time of occurrence, his age was stated to be 4 years and at the time of recording of his statement in the court, he was aged 7 years. Before recording his statement, the Court confronted him with certain queries in order to test whether he understands what he speaks. He was not administered any oath. On being asked about the occurrence, he stated that the accused had taken his brother Chhotu to rivulet for giving him bath. He also stated that at the rivulet, the accused took off cloths from his body and the body of the deceased. He also stated that firstly, the accused gave him bath and left him to the other end of the rivulet and thereafter took the Chhotu to the other end of the rivulet. Thereafter he returned home and on being asked he told his mother and father that the accused had taken Chhotu to the other end of rivulet and thereafter Chhotu was not seen.
 

 
	In the cross examination, he stated that earlier also he had gone to take bath in the rivulet alongwith his brother Chhotu. He also stated that the rivulet was not too deep. On the day of occurrence, Chhotu had gone down to take bath in the rivulet and when he did not emerge for long, he came back to the village. He also stated that Chhotu was taken to the other side of the rivulet by the accused. He denied the suggestion that he and his brother Chhotu had not gone alongwith Babu Lal accused to take bath in the rivulet. He also denied the suggestion that Babu Lal was not known to him from before the occurrence.
 

 
	PW 8 is Dr SC Kaushal. He deposed that the post mortem was conducted by Dr Hariom Taraiyya. He explained that Dr Taraiyya being a victim of paralysis, was not in a position to come over to the court to depose in the case. He proved the post mortem report and identified the signatures of Dr Hariom Taraiyya. From a perusal of the post mortem report, it would appear that as many as seven ante mortem injuries were noted to have been suffered by the deceased.
 

 
1.

Abraded contusion 8 cm x 4 cm on right side face and forehead.

2. Abraded contusion 3 cm x 2 cm on chin.

3. Abraded contusion 14 cm x 5 cm front of neck at the level of thyroid cartilage on dissection subcutaneous tissues are found achy-moses trachea found deeply congested trachea and both cornice are found fractured.

4. Abrasion 4 cm x 2 cm on right side chest right nipple.

5. Abraded contusion 3.5 cm x 2 cm on back of right shoulder joint.

6. Abrasion 1.5 cm x 1.5 x 1 cm on middle of right buttock.

7. Two abrasion 0.5 cm x 0.2 cm, 0.4 cm x 0.3 cm present on opening of anus on right side fecal matter coming out with redish discharge.

PW 9 is Dr D.K.Dixit who had examined the injuries on the person of accused Babu Lal. He found following six injuries on the person of accused Babu Lal.

1. Abrasion 5 cm x 3 cm in area on left leg 14 cm above the ankl.e serum present.

2. An abrasion 3 cm x 2 cm in area on right leg 7 cm ab ove the ankle . Serum present.

3. A contusion 20 cm x 18 cm in area on back of body just below the bone of right scapula. Red in colour.

4. A contusion 6 cm x 3 cm in area on left fore arm just above the wrist joint. Red in colour.

5. A contusion 10 cm x 3 cm in area on right thigh 6 cm below the head of femur. Red in colour.

6.A contusion 8 cm x 3 cm in area on left thigh 6 cm above the knee. Red in colour.

The Sessions Judge after considering the entire evidence convicted the appellant.It is important to mention is that there is no direct evidence of the crime in question . The findings of the trial court are based upon the incriminating circumstances against the appellant. The Sessions Judge has considered the following incriminating circumstances against appellant.

1.That the accused Babu Lal alias Guruji used to visit the village of Ramendra Kumar Yadav prior to the present incident and used to perform dangerous games, tricks and stunts which attracted the small children who used to gather around him.

2.That on 11.10.06 at about 12 noon-1 p.m. in the presence of the complainant Ramendra Kumar Yadav (PW-1) and his wife Smt. Ramkumari alias Chhoti and brother of the complainant Suresh Kumar (PW-2) and one Ragdha of the village (PW-3) etc., accused took away both the sons of the complainant, namely, Chhotu aged about 8 years and Akash, aged about 4 years from the doorstep of the complainant towards Dharehra nallah situated towards the southern side of the village on the premise of having bath therein. Since then the elder son Chhotu did not return alive.

3.That PW-4 Sheru lastly had seen the deceased Chhotu going alongwith his brother Akash and accused aforesaid from his field on 11.10.06 at about 12-1 O' clock afternoon.

4.That on the date of incident itself some time after the deceased Chhotu had gone alongwith his younger brother Akash and accused Babu Lal, the younger brother of the deceased, namely, Akash came back with cloths of the deceased Chhotu and on being enquired by his parents and other persons, he told that the accused has taken his brother on his shoulder across the nallah.

5.That on searching the deceased and the person who had taken him away, namely, the aforesaid accused, the witnesses found the deceased about one kilometer away in western side of village Deoria Pashchim on the date of incident itself i.e. 11.10.06 behind the grocery shop of Kripali Pasi.

6.On harsh interrogation, accused Babu Lal told them that he is devotee of genies (evil spirits) and that is why he took away the son of the complainant across the nallah in the thicket and after killing him by hitting hard object on his nose and pressing his neck hid the dead body in thicket which he can get recovered.

7.That on 11.10.06 itself accused Babu Lal Pasi took the witnesses alongwith him across Dharehra nallah and got the hidden dead body of deceased Chhotu recovered from the thicket during day time at about 5 p.m.

8.That after autopsy of the dead body of the deceased Chhotu it transpired that the deceased died on account of asphyxia as a result of ante mortem injuries and from injury no. 6 and 7 it was evident that before killing the deceased sodomy was done with him.

9.That on 12.10.06 on medical examination of the accused Babu Lal got conducted by the police, it came out that some of the injuries caused to him by attempting sodomy and the resisting by victim to the such attempt.

10.That the accused prior to the present incident had committed another similar heinous act wherein he has been sentenced to life imprisonment.

Before adverting to the arguments, we would, at the very threshold, like to mention that there is no direct evidence to abridge the gap between the appellant and the crime and the entire prosecution hinges on circumstantial evidence. This being a case based on circumstantial evidence, we would like to quip here before proceeding further that the Apex Court in a series of decisions, has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests.

(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii)those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;

(iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else; and

(iv)the circumstantial evidence in order to sustain conviction must be complete and inescapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.

The Sessions Judge while convicting appellant considered ten incriminating circumstances proved against the appellant.

We have considered the evidence against the appellant qua the incriminating circumstances against the appellant.

We are of the opinion that out of above mentioned ten incriminating circumstances first circumstance that the appellant used to perform tricks and games to attract children does not in any manner incriminate him with the crime.

The second and third circumstances considered by the Sessions Judge are relating to ''last seen'' of the deceased along with the appellant. In support of this incriminating circumstance the prosecution has examined P.W1 Ramendra Kumar ,P.W.2 Suresh Kumar, P.W3 Ragha and P.W7 Akash.

P.W.1 deposed that the accused had taken complainant's two sons for giving them bath in the rivulet and when his younger son returned with the cloths of deceased, he enquired from his younger son Akash about the whereabouts of Chhotu upon which Akash informed that the accused had taken Chhotu on his shoulder across the rivulet. P.W.2 Suresh Kumar is brother of P.W.1 and he fully supported the testimony of P.W.1 about taking away his two sons by accused for giving them bath.P.W3 Ragha has also supported the testimony of P.W.1 and P.W2 regarding taking away children by the accused. The most important testimony in support of incriminating circumstance of last seen of the deceased with accused is of P.W.7 Akash.He is a child witness. He was also taken away by the accused along with the deceased for giving them bath in the rivulet. When deceased did not return he brought the clothes of the deceased to his house. He was subjected to grueling cross examination but nothing could be elicited to doubt his testimony. We are of the firm view that the prosecution has proved that the deceased was taken away by the appellant for giving him bath to a rivulet and thereafter he was not seen alive.

The fourth incriminating circumstance considered by the trial court is that when Akash returned alone, on being inquired by his parents he told them that accused had taken away his brother on his shoulder across the nallah. We are of the opinion that the Sessions Judge has wrongly considered it as an incriminating circumstance because the statement of Akash given to other witnesses is not admissible in evidence as it amounts to hearsay. The only statement of P.W.7 Akash is admissible in which he stated that accused had taken away him and his brother and that part of the testimony is already considered as an incriminating circumstance of last seen. Therefore fourth incriminating circumstance can not be considered as an independent incriminating circumstance against the appellant.

Incriminating circumstances 5 is about the presence of accused on the date of incident behind a grocery shop of Kripali Pasi but this circumstance does not incriminate the appellant with the crime in any manner.

Incriminating circumstance 6 is about confession of the accused before the witnesses. The Sessions Judge has wrongly considered this circumstance because according to testimonies of witnesses he was interrogated sternly then he disclosed and confessed to have committed the crime. When he was medically examined the doctor had found six injuries on his body. Section 24 of the Evidence Act provides as under:

"Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.--A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."

In the instant case the confession is not voluntary, therefore, can not be accepted in evidence.

Incriminating circumstance 7 is about the recovery of dead body of deceased on the pointing out of accused. P.W.1 has stated that the dead body was recovered from the other side of gharera nallah. P.W.2 Suresh Kumar also deposed that Babu Lal took them near the gharera nallah and from patawar he got recovered the dead body. This testimony is also corroborated by P.W.4 Sheru. The prosecution has proved that the dead body of the deceased was got recovered by the accused from near the gharera nallah. This circumstance is admissible under section 8 of the Evidence Act.

Incriminating circumstance 8 is relating to post mortem report and this circumstance does not incriminate appellant with the crime.

Incriminating circumstance 9 is about the injuries found on the person of the accused. The Sessions Judge has considered this circumstance as incriminating circumstance because there were two injuries which were possible due to attempting sodomy and by the resistance committed by the victim. The medical examination report does not indicate any injury on the private part of the appellant.P.W9 Dr D. K.Dixit stated that he did not examine the private part of the appellant. In his opinion injuries No 5 and 6 which are situated on thighs could be possible due to resistance offered by the victim while sodomy was attempted by the appellant. We are of the opinion that this circumstance does not incriminate appellant because there was no injury on the private part of the body. It is not disputed that at the time of his apprehension appellant was assaulted by the villagers. The Sessions Judge has wrongly considered opinion of the doctor as an incriminating circumstance against appellant because as already observed that incriminating circumstance should be of definite tendency unerringly pointing towards guilt of the accused. We are of the opinion that it can not definitely stated that these injuries possible due to only resistance offered by the victim while appellant was attempting sodomy.

Last circumstance is about previous conviction of the appellant. In view of the specific provision in the Evidence Act this circumstance can not be relevant for considering as an incriminating circumstance. Section 54 of the Evidence Act reads as herein under,

"54. Previous bad character not relevant, except in reply.--In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.

Explanation 1.--This section does not apply to cases in which the bad character of any person is itself a fact in issue.

Explanation 2.--A previous conviction is relevant as evidence of bad character.]"

In the case of Swamy Shraddananda v. State of Karnataka, reported in (2007) 12 SCC 288, it is held as under:

''Also it is to be realised that in criminal cases character of the accused is immaterial by the mandate of Sections 53 and 54 of the Evidence Act. The same should not factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should not be a determinative factor.''

The prosecution in the instant case has successfully proved that the deceased was last seen along with the appellant and thereafter he was not seen alive. The other incriminating circumstance proved against the appellant is that when he was apprehended he got recovered the dead body where deceased was last seen along with the appellant. The duration in the time of death and last seen is very short and appellant did not offer any explanation about parting company with the deceased Another incriminating circumstance against the appellant is that when he was questioned under section 313 CrPC about the ''last seen'' he only denied and he did not offer any explanation and denied. A false answer completes the missing link in the chain of incriminating circumstances.

The Apex Court in the case of Pudhu Raja v. State,(2012) 11 SCC 196 has held:

''It is obligatory on the part of the accused while being examined under Section 313 CrPC, to furnish some explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to the circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances.''

In view of the above, we are of the opinion that the chain of incriminating circumstances is complete and we affirm the findings recorded by the trial court.

Accordingly, the appeal is dismissed.

The appellant is in jail. He shall remain there to serve out the sentences awarded to him by the trial court

Let a copy of this judgment and order be sent to the court below alongwith record for compliance.

May 16, 2013

MH/LN/-