RAJIV@MONU vs THE STATE (NCT OF DELHI) & ANR.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13th November, 2024
Date of Decision: 28th November, 2024
+ CRL.A. 627/2023
RAJIV@MONU …..Appellant
Through: Ms. Anu Narula (DHCLSC) and Ms. Sruthi, Advocates. (M: 9871122620).
Versus
THE STATE (NCT OF DELHI) …..Respondent
Through: Mr. Aman Usman, APP for the State with Insp. Yashwant Singh and SI Rohit Chahar, P.S. Bharat Nagar.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present appeal under Section 374(2) and Section 383 read with Section 482 of the Code of Criminal Procedure, 1973 (for short, CrPC) has been filed by the Appellant-Rajiv @ Monu assailing the impugned judgment of conviction dated 22nd February, 2023 and order on sentence dated 19th April, 2023 passed by Sh. Neeraj Gaur, Additional Sessions Judge-05, North-West District, Rohini Courts, New Delhi, whereby the Appellant has been convicted in SC No. 426/2017 arising out of FIR No. 81/2017, under Sections 302/34 of the Indian Penal Code, 1860 (for short, IPC), registered at P.S. Bharat Nagar.
2. Vide the aforesaid impugned judgment of conviction and order on sentence, the present Appellant has been convicted for the offences punishable under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life along with a fine of Rs. 1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. Other co-accused, Vijay @ Sahil @ Budhu (hereinafter referred to as co-accused No.1), has since passed away during the trial of the present FIR. However, the other co-accused person, Akash @ Kalu (hereinafter referred to as co-accused No.3), has been acquitted as the learned Trial Court held that the prosecution was not able to prove the charges against him beyond reasonable doubt.
3. The case of the prosecution was that the present FIR No. 81/2017 was lodged at the instance of one Mr. Gurdayal Singh (hereinafter Complainant/PW-2) who alleged that on 27th February, 2017 he was present in his house and at about 11:30 PM, he went out to take a night walk when he heard some noise from the side of Sawan Park Jhuggi. Upon hearing the noise, he proceeded towards the jhuggis where he saw that his son Chanmeet was being beaten up by co-accused No.1, the Appellant and two other associates. The said assailants, co-accused No.1 and the Appellant were known to the Complainant and used to often visit his house.
4. It is alleged that the Complainant tried to rescue his son but the assailants pushed the Complainant aside and continued beating his son. It was further alleged by the Complainant that co-accused no.1 tried to stab his son in the stomach but his son turned and the knife pierced his thighs. Thereafter, the Complainant raised an alarm and some persons gathered, due to which the assailants fled from the spot.
5. Pursuant to the aforesaid incident, the Complainants son was first taken to Sunder Lal Jain Hospital and from there he was shifted to Safdarjung Hospital where the Complainants son died during the treatment. It is alleged that during investigation co-accused No.1 was the first to be arrested and a knife was also recovered from co-accused No.1, the same is reflected in Seizure Memo dated 1st March, 2017 (Ex. PW 22/L). Thereafter, co-accused No.3 and the Appellant were also arrested. Upon the completion of investigation, chargesheet dated 26th May, 2017 was filed against the Appellant as well as the aforesaid two co-accused persons for the offences punishable under Sections 302/34 of the IPC.
6. Vide order on charge dated 8th August, 2017, charges for the commission of offences punishable under Sections 302/34 of the IPC were framed against the Appellant along with the other co-accused persons. The relevant portion of the order on charge qua the Appellant and other co-accused persons is reproduced hereinbelow: –
I, M.R. Sethi, ASJ/NW-03/Rohini, Delhi, do hereby charge you accused:
(1) Vijay @ Sahil @ Buddu S/o Sh. Bhim Sen
(2) Rajeev @ Monu S/o Late Sh. Rajender
(3) Akash @ Kalu S/o Sh. Nawab Singh
as under:
That on 27.02.2017 at about 11.30 pm in gali in front of Bhandari store, Sawan Park Extn. Ashok Vihar, you all in furtherance of your common intention along with one other person who could not be identified and apprehended, had committed murder of Chanmeet S/o Sh. Gurdayal Singh and thereby committed an offence punishable under section 302/34 IPC and within cognizance of this court.
I hereby direct that you all be tried by this Court for the aforesaid offences
It is pertinent to note that additional charges were framed against co-accused No.1 under Sections 25 and 27 of the Arms Act, 1959 (for short, Arms Act). However, co-accused No.1 passed away during the course of the trial and proceedings stood abated against him.
7. In order to prove its case, the prosecution examined a total of 26 witnesses to prove the guilt of the Appellant including Ms. Gurpreet Kaur (PW-1) i.e. sister of the deceased, Mr. Gurdayal Singh (PW-2) i.e. father of the deceased, Gurpreet Singh (PW-3) and Mr. Kuljeet Singh @Hunny (PW-5) i.e., cousins of the deceased, apart from other official witnesses. After the conclusion of prosecution evidence, statements of the Appellant along with other co-accused persons was recorded under Section 313 of the CrPC wherein they all refuted the case of the prosecution and claimed innocence. The Appellant in his statement under Section 313 of the CrPC opted not to lead any defence evidence and further stated that Gurpreet Kaur (PW-1) and Complainant (PW-2) are interested witnesses and have falsely implicated him in the present case.
8. Vide the impugned judgment of conviction the learned Trial Court held that the Appellant was guilty for offences punishable under Sections 302/34 IPC. It is pertinent to note that the learned Trial Court acquitted co-accused No.2 of all the charges and it was held that the prosecution failed to prove their case beyond reasonable doubt with regard to the role of co-accused No.2. Hence, the present appeal has been filed assailing the impugned judgment insofar as the conviction of the present Appellant is concerned.
9. Learned Counsel appearing on behalf of the Appellant submitted that the prosecution has failed to prove the case beyond reasonable doubt qua the Appellant inasmuch as the testimonies of Ms. Gurpreet Kaur (PW-1), Mr. Gurdayal Singh (PW-2), Gurpreet Singh (PW-3) and Mr. Kuljeet Singh @ Hunny (PW-5) are in contradiction with each other and different versions of the incident have been narrated in their testimonies before the learned Trial Court.
10. It is further submitted that the Appellant was, in fact, a friend of the deceased and the person who informed the family of the deceased about the fight that had taken place which was established by the testimony of Retd. ACP Jawahar Singh (PW-25) before the learned Trial Court. Ms. Gurpreet Kaur (PW-1) also during her testimony admitted that though someone informed the family regarding the incident by knocking on the door, however, she doesnt say that it was the Appellant. Learned counsel appearing for the Appellant submitted that it had been established through the testimonies of Ms. Gurpreet Kaur (PW-1) and Retd. ACP Jawahar Singh (PW-25) that the Appellant was the one who had informed the family regarding the aforesaid incident. Moreover, it is also submitted that as per Ms. Gurpreet Kaurs (PW-1) testimony, the family as also the deceased knew the Appellant from at least 6 months, before the aforesaid incident occurred thus, even when the initial PCR call was recorded, the only person named was co-accused No.1 i.e. Vijay and not the Appellant.
11. Learned Counsel for the Appellant submitted that the learned Trial Court shifted the burden of proof upon the Appellant to rebut the charges, whereas it was the responsibility of the prosecution to establish the guilt of the Appellant beyond reasonable doubt. To establish the aforesaid contention reliance was placed upon the judgment of the Honble Supreme Court in State v. Rahul, 2011(2) JCC 701. Further reliance was placed on the judgment of this Court in Sunil Kumar v. State, 181(2011) DLT 528.
12. It was further submitted that in the impugned judgment learned Trial Court has failed to appreciate the FSL report (Ex. PW-24/B) as per which human blood was detected on the knife, however the blood group could not be ascertained. Hence, it could be said that the recovery or use of the said weapon by the Appellant is highly doubtful.
13. Learned Counsel for the Appellant submitted that the learned Trial Court has failed to appreciate that there was lack of mens rea (motive) and actus reus (injury) in the present case and in the absence of the aforesaid ingredients learned Trial Court has wrongly convicted the Appellant for offences punishable under Sections 302/34 IPC.
14. Learned Counsel for the Appellant placed reliance upon the judgment of the Honble Supreme Court in Ashish Batham v. State of M.P., (2002) 7 SCC 317. The relevant paragraph of the aforesaid judgment is reproduced herein under:
8.Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between may be true and must be true and this basic and golden rule only helps to maintain the vital distinction between conjectures and sure conclusions to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.
15. It was further urged by the Counsel of the Appellant that the presence of the Appellant at the spot of the incident is itself in doubt as while the incident occurred, the Appellant was not present as is evident from the testimonies of the three witnesses from the family of the deceased. Moreover, even if his presence is taken as being there, there is no further evidence which has been adduced by the prosecution to convict the Appellant with the aid of Section 34 of the IPC and the Appellants conviction deserves to be set aside.
16. Per contra, learned APP for the State, in all fairness, has submitted that the PCR form dated 27th February, 2017 (Ex. PW-25/O) reflects that the deceased had stated that he was attacked by co-accused No.1 i.e., Vijay along with do teen ladke. He has pointed out that the use of the term do teen ladke alongwith co-accused No.1s name would show that the constable who had recorded the statement of the deceased while he was being taken to the hospital was not told of the Appellant by the deceased. Since the deceased knew the Appellant there was no occasion for him to refer to the Appellant as part of do teen ladke, he would have naturally named the Appellant if he was involved in the incident. It is further submitted that Ms. Gurpreet Kaur (PW-1), Mr. Gurdayal Singh (PW-2) and Mr. Gurpreet Singh (PW-3) have categorically named and identified the Appellant to be present at the incident when the deceased was stabbed by co-accused No.1 i.e Vijay.
17. Heard learned Counsel for the parties and perused the record.
18. Delhi Police Control Room (DPCR) Form (Ex. PW-25/O) placed on record by the prosecution shows that on receipt of a call on 27th February, 2017 at 23:44:18 hours, the concerned police staff reached the crime spot and were informed by the caller that the injured has been taken to Sunder Lal Jain Hospital. On reaching Sunder Lal Jain Hospital, the police staff met the injured Chanmeet Singh s/o Gurdyal Singh, the deceased, who told that the boy named Vijay (co-accused No. 1) alongwith 2-3 other boys had stabbed him with a knife on both his legs. This was informed to the concerned police station. Thus, it is seen that the name of the Appellant was not taken by the deceased to the staff of PCR van and this fact has not been brought to the notice of the learned Trial Court.
19. The name of the Appellant was taken by PW-2/Complainant (Gurdayal Singh) and on the basis of his statement, the FIR in the present case was registered. PW-2, during his testimony recorded before the learned Trial Court, has categorically named the present Appellant as one of the persons, who alongwith Vijay (co-accused No. 1) and other culprits were beating his son and when he tried to intervene to save his son, two of the said culprits caught hold of his sons hand and while one held his feet. Thereafter, Vijay (co-accused No.1), took out a knife and aimed it on his sons abdomen, however, when the latter turned to save himself, the knife hit him on his left thigh. And when co-accused No.1, again, tried to stab, the deceased turned and the knife hit him on his right thigh. PW-2 further stated that his wife, daughter Gurpreet (PW-1) and his nephew, Kuljeet Singh @ Hunny (PW-5), had also come by that time and took the deceased to Sunderlal Jain Hospital. It is pertinent to note here that PW-2 has also stated that the Appellant as well as co-accused No. 1 were well known to the deceased, his son, as they used to come to meet the deceased at his house. In these circumstances, the fact that the deceased did not take Appellants name at the very first instance becomes extremely significant. Furthermore, a perusal of the testimony of PW-2/Complainant shows that he has not assigned any specific role to the Appellant except for exhortation.
20. PW-1 (Gurpreet Kaur), who was the sister of the deceased, in her statement recorded before the learned Trial Court, stated that at 11:00 PM on 27th February, 2017, when they were sitting and watching TV after having their meals, along with her cousins Kuljeet Singh @ Hunny (PW-5) and Gurpreet Singh (PW-3), someone knocked at the door and claimed that the deceased was having a fight with someone. Consequently, all of them ran towards the jhuggis, where she saw that the present Appellant was holding the legs of her brother, the deceased, and other co-accused No.3 i.e Akash with one other boy holding his hands and co-accused No.1 (Vijay, correctly pointed out in Court) was having a knife with him and stabbed her brother. She has further stated that at the instructions of her father (PW-2), her cousin Kuljeet Singh @ Hunny (PW-5) brought the car there and took the deceased to Sunderlal Jain Hospital. This witness has also stated that she knew all the three accused persons as they used to roam around with her brother, the deceased, and also visit their house.
21. At this stage, it is relevant to note that PW-25 (Initial Investigating Officer) in his cross-examination recorded before the learned Trial Court had admitted the fact that PW-1 had told him that it was the Appellant who had knocked at their door and informed her on the said day that the deceased was having a fight with someone. The relevant portion of the cross-examination of PW-25 reads thus: –
.. I do not remember as how many times I have recorded the statement of Smt. Gurpreet Kaur/PW1. It is correct that PW1 never disclosed me the name of accused Akash as the person who was holding the hand of deceased at the time of incident. PW1 had disclosed me that the boy knocked the door of the deceased was Monu. I do not remember whether PW1 ever told me for recording her statement U/s. 161 Cr.P.C. that she knew Akash as he used to visit to her house
..
(emphasis supplied)
22. PW-3 (Gurpreet Singh), who is also a cousin of the deceased, in his testimony recorded before the learned Trial Court had stated that at about 11:30 PM on the said date he was sitting in the house of his cousin Kuljeet Singh @ Hunny (PW-5), a boy came and informed them that some boys were beating the deceased, and therefore, he alongwith Kuljeet @ Hunny (PW-5) went towards that crime spot. On reaching the spot, it is stated by this witness that he saw Vijay (co-accused No.1), the Appellant and 2-3 other boys were giving beatings to the deceased. He has further stated, on seeing them coming, Vijay stabbed the deceased but the knife blows landed on his legs and subsequently, the culprits ran away from the spot. It is further recorded, in his testimony, that thereafter Kuljeet @ Hunny (PW-5) brought his car and his uncle (Tayaji) Gurdyal Singh (PW-2) took the deceased to the hospital. Moreover, this witness has not identified co-accused No.2, Akash, as the person who was present at the spot on the said date. This witness does not mention the presence of PW-1 (Gurpreet Kaur) at the spot at all.
23. PW-5 (Kuljeet Singh @ Hunny) was also cited as an eye witness to the incident. His presence at the time of the incident has been asserted by all the other witnesses, i.e., PW-1 (Gurpreet Kaur), PW-2 (Gurdyal Singh) and PW-3 (Gurpreet Singh). However, this witness has not supported the case of the prosecution in this regard. In his testimony recorded before the learned Trial Court, he stated that on 27th February, 2017, during night time at about 11:00 PM he was present in his house and when his mother raised noise that someone has stabbed the deceased, he ran outside the house and saw 2-3 persons bringing the deceased towards his gali and after getting keys of his car, he made the deceased lie down in it and took him to Sunder Lal Jain Hospital. Subsequently, this witness was declared hostile by learned APP and was confronted with his previous statement given to the police, which he denied in entirety.
24. The Honble Supreme Court in Balu Sudam Khalde v. State of Maharashtra; 2023 SCC OnLine SC 355, while discussing the principles of appreciation of ocular evidence in a criminal case observed and held as under:
27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
(emphasis supplied)
25. In light of the aforesaid discussion on evidence and law, this Court is of the considered opinion that the prosecution has not been able to prove their case beyond reasonable doubt qua the present Appellant on account of the following circumstances: –
a) Name of the Appellant was not mentioned by the deceased himself at the very first instance and since it has come on record that they were known to each other, then, there was no reason for the deceased not to take the name of the Appellant if he was one of the culprits.
b) Categorical assertion by PW-25, in his cross-examination as noted hereinabove, that it was the present Appellant who had informed PW-1 and the said fact was told to PW-25 by PW-1 only, also casts a doubt on the prosecution case.
c) All the three key prosecution witnesses, i.e., PW-1, PW-2 and PW-3 have categorically stated that Kuljeet Singh @ Hunny (PW-5) was present at the spot and had witnessed the incident alongwith them. However, the said witness (PW-5) had completely denied the factum of having witnessed the incident. PW-5, in fact, had stated that 2-3 persons were bringing the deceased towards his gali and does not even mention about the presence of PW-1, PW-2 and PW-3 at that particular point of time. This witness (PW-5) was a cousin of the deceased, and, clearly had no connection with the Appellant, therefore, had no reason to not support the case of the prosecution. It is the admitted case of the prosecution that PW-5 took the deceased in his car to Sunder Lal Jain hospital. The testimony of PW-5 has created a doubt with regard to the testimonies of aforesaid three prosecution witnesses.
d) It is relevant to note that Gurpreet Singh (PW-3), in his testimony, has given a version, which is different from that of Gurpreet Kaur (PW-1) and Gurdayal Singh (PW-2). As per this witness (PW-3), when he reached the spot, he saw Vijay (co-accused No.1), the present appellant and 2-3 other boys giving beatings to the deceased and on seeing them coming, Vijay stabbed the deceased by giving knife blows which landed on his legs. This witness (PW-3) has not stated that the present Appellant alongwith the other co-accused persons were holding the deceased while Vijay stabbed him. This witness has ascribed the role of the Appellant with regard to giving beatings to the deceased. No other role has been attributed to the Appellant by PW-3.
e) Gurdayal Singh (PW-2) does not mention that Gurpreet Singh (PW-3) had come to the spot and witnessed the incident as claimed by Gurpreet Kaur (PW-1) and PW-3 himself. Similarly, Gurpreet Singh (PW-3) does not mention that Gurpreet Kaur (PW-1) was present at the spot and in fact gives a contrary statement to the effect that he was present at the house of his cousin Kuljeet Singh @ Hunny (PW-5) when somebody informed them about the incident. It is pertinent to note that PW-1 in her statement has categorically stated that she along with Gurpreet Singh (PW-3) and Kuljeet Singh (PW-5) were present at her house when somebody informed them about her brother being beaten up. These contradictions seriously affect the testimony of Gurpreet Kaur (PW-1) with regard to her claim of being present at the spot. Thus, in the final analysis of evidence of Gurdayal Singh (PW-2), Gurpreet Singh (PW-3) and Kuljeet Singh @ Hunny (PW-5) presence of Gurpreet Kaur (PW-1) at the spot becomes highly doubtful and, therefore, her evidence cannot be relied upon to convict the Appellant. Further, as pointed hereinabove Kuljeet Singh @ Hunny (PW-5) who happens to be the cousin of the deceased and the person taking him to the hospital has clearly not supported the case of the prosecution with regard to the presence of either of the aforesaid three witnesses i.e., PW-1, 2 and 3 to be present at the spot.
f) The learned. Trial Court in the impugned judgment while acquitting the co-accused No. 3 has observed as under: –
33. I will firstly examine the arguments on behalf of accused Akash. The Ld. Defence Counsel has vehemently challenged the testimonies of PW-l & 2 regarding their identification of accused Akash during TIP as well as in the court as one of the boys who had killed the deceased Chanmeet. During the cross-examination of PW-l Gurpreet Kaur, she admitted that she knew all the three accused (including Akash) as they used to roam around with deceased Chanmeet and also used to visit her house and that all the three accused were friends of Chanmeet for 6 months prior to the incident. It has also come in the cross-examination of PW-l that the name of the accuse d Akash has not been mentioned by her in her statement Mark PW-l/DA recorded u/s 161 CrPC. Since accused Akash was earlier known to PW-l, the TIP at the instance of PW-1 loses its probative value. Similarly, PW-2 Gurdyal Singh deposed in his cross-examination that Akash was earlier known to him as being Buddhu. Neither the name of accused Akash nor his alias name as Budhu is finding any mention in the complaint Ex.PW2/ 1. Since accused Akash was earlier known to PW-2 Gurdyal Singh as well, the TIP of accused Akash at the instance of PW-2 also is of weak probative value.
34. The two eye-witnesses in the form of PW-1 & 2 have not named accused Akash in their initial statement despite both of them knew him being the friend of deceased Chanmeet. Because accused Akash was earlier known to both these eye-witnesses, the judicial TIP of accused Akash by both of them do not have much probative value. It cannot be ruled out that both these witnesses identified the accused Akash during the judicial TIP as well as in the court at the instance of the police. This view is further emboldened by the fact that another eye-witness Gurpreet Singh /PW-3 (who stated that he saw accused Vijay and Manu giving beatings to Chanmeet with 2-3 other boys) did not identify the accus ed Akash in the court as one of the culprits though he correctly identified the accused Vijay and Manu. The deposition of PW-3 is inconsistent with the deposition of PW-l as well as PW-2 regarding the presence or identification of accused Akash. Due to these inconsistencies, the identification of accused Akash has become more doubtful.
The learned Trial Court disbelieved the testimony of Gurpreet Kaur (PW-1) and Gurdyal Singh (PW-2) on account of the fact that the name of the co-accused No.3 i.e., Akash was not taken by them at the first instance. The fact that the name of the Appellant was not taken by the deceased himself at the very first instance, as noted in the PCR form (Ex. PW-25/O), was not brought to the notice of the learned Trial Court. This circumstance read with the testimony of Kuljeet Singh @ Hunny (PW-5) completely contradicts the case of the prosecution qua the present Appellant and creates a doubt in the case of the prosecution. Benefit of such a doubt ought to be given to the Appellant.
g) Prosecution has also not been able to place on record any evidence to show that there was any meeting of mind between the Appellant and the other co-accused persons including co-accused No.1 who allegedly gave the stabbing, in order to convict the Appellant with the aid of Section 34 of the IPC. It is not the case of the prosecution that the Appellant and the deceased or, for that matter, any of the aforesaid co-accused persons were having any prior enmity or that the incident was pre-planned or premeditated in any manner.
26. In view of the above noted facts and circumstances of the case, the present appeal is allowed and disposed of accordingly along with all pending applications, if any.
27. The impugned judgment of conviction dated 22nd February, 2023 and order on sentence dated 19th April, 2023 passed by learned ASJ are set aside. The Appellant stands acquitted of the charges for the offences punishable under Sections 302/34 of the IPC.
28. However, the order on sentence with respect to the compensation to be awarded shall remain in force. It is directed that if the compensation has not been determined let the same be done within a period of 1 month.
29. Nominal roll dated 06th May, 2024 shows that the Appellant, as on that date, had undergone incarceration for 5 years 6 months and 20 days including the remissions earned by him during his custody. The Appellant is directed to be released forthwith, if his custody is not required in any other case.
30. Copy of the judgment be sent to the Jail Superintendent for necessary information and compliance forthwith.
31. Copy of this judgment be sent to the Secretary, DLSA North-West for necessary information and compliance forthwith.
32. Judgment be uploaded on the website of this Court forthwith.
AMIT SHARMA
(JUDGE)
PRATHIBA M. SINGH
(JUDGE)
NOVEMBER 28, 2024/nk
CRL.A. 627/2023 Page 2 of 2