Delhi District Court
State vs 1. Mr. Kuldeep Kumar on 2 May, 2014
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 119/2013
Unique Case ID Number : 0240R0309302013.
State versus 1. Mr. Kuldeep Kumar
Son of Mr.Joginder Kumar,
R/o B-22, IV th Floor,Hari Nagar, Delhi.
2.Mr. Rohtash Singh
Son of Mr. Ramji Lal,
R/o B-344,Avantika Rohini, Sec-1, Rohini, Delhi.
3.Ms. Manju Bala
Wife of Mr. Rohtash Singh,
R/o B-344, Avantika Rohini, Sec-1, Rohini,
Delhi.
4.Mr. Tarun Kumar
Wife of Mr. Rohtash Singh,
R/o B-344, Avantika Rohini, Sec-1, Rohini, Delhi.
5.Ms. Suraj Mukhi
Wife of late Mr. Raj Kumar,
R/o A-9/4, A-Block, DDU Hospital, Staff Quarter,
Delhi.
6.Mr.Kushank Kumar
Son of Mr. Rohtash Singh
R/o B-344,Avantika, Sector-1, Rohini, Delhi.
(Supplementary charge sheet-
Unique Case ID Number 02401R0502262013)
First Information Report Number : 143/13
Police Station Hari Nagar,
Under sections 342/376/506/120-B/109/34 of the Indian Penal Code.
Date of filing of the main charge sheet before : 27.06.2013.
the Court of the Metropolitan Magistrate
Date of filing of the supplementary charge sheet : 01.10.2013.
Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar,
Under sections 342/376/506/120-B/109/34 of the Indian Penal Code.
State versus Kuldeep Kumar & Ors. -:: Page 1 of 14 ::-
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(Kushank Kumar) before the Court of the Metropolitan Magistrate
Date of receipt of file after committal in this : 04.07.2013.
Court of ASJ(SFTC)-01, West, Delhi
Date of receipt of file : 21.10.2013.
(supplementary charge sheet-Kushank Kumar)
after committal in this Court of ASJ(SFTC)-01, West, Delhi
Arguments concluded on : 02.05.2014.
Date of judgment : 02.05.2014.
Appearances: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
All the other accused are on bail.
Mr. A.A.Kureshi, counsel for accused Mr.Kuldeep Kumar.
Mr. Anshul Gupta, counsel for all the other accused persons
namely Mr.Rohtash Singh, Ms.Manju Bala, Mr.Tarun Kumar,
Ms.Suraj Mukhi amd r.Kushank Kumar.
Prosecutrix in person with counsel, Mr.Saurabh Singhal.
Ms.Poonam Sharma, counsel for Delhi Commission for
Women.
Investigation Officer SI Usha Sharma is also present.
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. Mr. Kuldeep Kumar, Mr. Rohtash Singh, Ms. Manju Bala, Mr. Tarun Kumar and Ms. Suraj Mukhi, all the accused persons, have been charge Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code. State versus Kuldeep Kumar & Ors. -:: Page 2 of 14 ::-
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sheeted by Police Station Hari Nagar, Delhi for the offence under sections 342/376/506/120-B/109/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on or prior to 08.02.2013 at unknown time and within the jurisdiction of Police Station Hari Nagar, accused Mr.Kuldeep Kumar along with other accused persons Mr.Rohtash Singh, Ms. Manju Bala, Mr. Tarun Kumar, Ms. Suraj Mukhi and co-accused Kushank(absconding at that time) conspired to do an illegal act i.e. to get the prosecutrix (name withheld to protect her identity) married to accused Mr.Kuldeep Kumar forcibly and to abet the offence of rape on the prosecutrix by accused Mr.Kuldeep Kumar. In pursuance of the above said conspiracy on 08.02.2013 all accused persons along with co-accused Kushank (absconding) threatened the prosecutrix and brought her to Arya Samaj Mandir, Dwarka where accused took money from accused Mr.Kuldeep Kumar and forced the prosecutrix to under go marriage with accused Mr.Kuldeep Kumar despite knowing that she was already married to accused Mr.Kushank Kumar and thereafter intoxicated her and sent her with co-accused Mr.Kuldeep Kumar and abetted the offence of rape by accused Mr.Kuldeep Kumar on the prosecutrix. The allegations against accused Mr.Kushan Kumar (supplementary chargesheet) are similar as of the co- accused namely Mr. Rohtash Singh, Ms. Manju Bala, Mr. Tarun Kumar and Ms. Suraj Mukhi.
2. After completion of the investigation, the charge sheet was filed against accused Mr. Kuldeep Kumar, Mr. Rohtash Singh, Ms. Manju Bala, Mr. Tarun Kumar and Ms. Suraj Mukhi before the Court of the learned Metropolitan Magistrate on 27.06.2013 and after its committal, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code. State versus Kuldeep Kumar & Ors. -:: Page 3 of 14 ::-
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Track Court)-01, West, Tis Hazari Courts, Delhi for 04.07.2013. The supplementary charge sheet in respect of accused Mr.Kushank Kumar was filed on on 01.10.2013 which was later committed to the Court of Sessions for 21.10.2013.
3. After hearing arguments, charge for offence under sections 342/376/120-B of the IPC was framed against the accused Mr.Kuldeep Kumar vide order dated 11.04.2014. Charge for offence under sections 506/328/366/109/376/120-B was framed against the other accused persons Mr.Rohtash Singh, Ms. Manju Bala, Mr. Tarun Kumar and Ms. Suraj Mukhi. All the accused persons pleaded not guilty and claimed trial. Charge for offence under sections 506/328/366/109/376/120-B was framed against the accused Kaushank Kumar on 02.05.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined the Prosecutrix, as PW1.
5. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code. State versus Kuldeep Kumar & Ors. -:: Page 4 of 14 ::-
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6. PW1, the prosecutrix, has deposed that on 25.03.2013 she was residing at H. NO 145/10, Badh Mohalla, Old Faridabad, Haryana. On 07.07.2010, she had got married with accused Mr.Kushank in Arya Samaj Mandir in Haridwar after eloping with him. Thereafter, they shifted to Hyderabad where they started residing together for about one year. Then they moved back to Delhi and resided at Pkt-11, Rohini but she do not remember the complete address. Accused Mr.Kushank and herself are from the same Gotra Jainwaal. As she was told by her society member that it is a sin to marry in the same Gotra and the marriage is void, therefore consequently she married to one Mr.Kuldeep voluntarily and with her free consent and lived with him for about 40 days. During her stay with accused Mr.Kuldeep, she had some quarrel with him. Therefore, on 25.03.2013 she left accused Mr.Kuldeep and went to the house of her father. On 28.03.2013 accused Mr.Kuldeep called her and asked her to come back to him. On 28.03.2013 at about 11.00 pm, she went to Police Station Hari Nagar, where she met two ladies. They were not police officials. On their enquiry, she told them she had some dispute with her husband. They told her that she would not be able to write complaint properly so they would help her by writing a complaint in a legal manner. They made her sign on 5-6 blank pages and sent her home. She has not made any complaint against any one in Police Station Hari Nagar. When she had eloped with accused Kushank, her father had made a complaint in Faridabad. she was produced before the Court of learned ACJM, Faridabad where she had made a statement under section 164 Cr.P.C (Ex.PW1/A) in favour of accused Mr.Kushank. She received a call from IO Usha Madam, on which she came to Tis Hazari Court, where her statement under section 164 Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code. State versus Kuldeep Kumar & Ors. -:: Page 5 of 14 ::-
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Cr.P.C. (Ex.PW1/B) was recorded. IO had showed her the complaint which was supposedly made by her and told her that she had to give her statement before the learned Metropolitan Magistrate on the lines of the complaint. She had made her statement (Ex.PW1/B) before the learned Metropolitan Magistrate. She had given the statement before the learned Metropolitan Magistrate at the instance of some well wisher who had misguided her. She was taken by the police to DDU Hospital where she was medically examined. She did not tell anything to doctor. She had told Usha Madam that the allegations of rape in the complaint are false but she told her that she can not do anything since the FIR has already been lodged. Accused Mr.Rohtash Singh and Ms.Manju Bala are the parents of accused Mr.Kushank. Accused Mr.Tarun Kumar is the brother of accused Mr.Kushank. Accused Ms.Suraj Mukhi is the paternal aunt (Bua) of accused Mr.Kushank. All the accused persons namely Mr.Kushank, Mr.Kuldeep Kumar, Mr.Rohtash Singh, Ms.Manju Bala, Mr.Tarun Kumar and Ms.Suraj Mukhi are innocent and they have not committed any offence. In the bail application no.1056/13 filed by accused Mr.Kushank in FIR No.143/2013, PS Hari Nagar, the matter was referred by the Hon'ble Delhi High Court to the Mediation Centre, where a settlement was effected between her self and accused Mr.Kushank Kumar, Mr.Rohtash Singh, Ms.Manju Bala and Mr.Tarun Kumar. Copy of the settlement agreement dated 03.09.2013 of the Delhi High Court Mediation and Conciliation Centre (Ex.PW1/C) has been filed by her. She did not have any dispute with all the accused persons. She has prayed that all the accused persons may be acquitted.
7. As the prosecutrix was hostile and had resiled from her earlier Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code. State versus Kuldeep Kumar & Ors. -:: Page 6 of 14 ::-
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statement, the Additional Public Prosecutor has cross-examined her.
8. In her cross examination by the Additional Public Prosecutor for State, the prosecutrix has deposed that she has not made any complaint to the police. Her statement was not recorded by the police. She has admitted that the complaint dated 25.03.2013 bears her signatures. However, she has denied the suggestion that she had made the complaint against all the accused persons to Police Station Hari Nagar. She voluntarily stated that she had only signed on 5-6 blank papers at the instance of two ladies, whom she had met in PS Hari Nagar. The contents of the complaint have been written by them. She has neither dictated the contents nor told the contents to those ladies. The complaint (Ex.PW1/D) and the statement under section 161 Cr.P.C. (Ex.PW1/E) were read over to her and she denied the suggestion that she had made a complaint to the police that after she had eloped from her home on the enticement by accused Mr.Kushank, she had married him on 07.07.2010 in Arya Samaj Temple in Haridwar. She denied the suggestion that she had written in her complaint and told the police in her statement that after her marriage with accused Mr.Kushank, her parents had lodged a complaint against accused Mr.Kushank and others in Police Station Old Faridabad wherein at the instance of accused Mr.Kushank she had got the case disposed off. She denied the suggestion that in her complaint she had written and had told the police in her statement that after the case was disposed off, she along with accused Mr.Kushank lived at Hyderabad in a rented accommodation arranged by his maternal aunt (Mausi) namely Ms. Sangeeta and after one year we shifted to Delhi and resided at Sect-21, Pkt No.13 and 11 DDA Flats, where accused Mr.Kushank beat her and kept her confined in a room. His Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code. State versus Kuldeep Kumar & Ors. -:: Page 7 of 14 ::-
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family also used to beat her. She denied the suggestion that she had written in her complaint and told the police in her statement that whenever she used to request for meeting her parents they used to threaten to kill her brother. She denied the suggestion that she had written in her complaint and told the police in her statement that on 21.05.2012 her daughter was born and the accused used to treat her with cruelty. She denied the suggestion that she had written in her complaint and told the police in her statement that the accused took her to Dwarka Court on 18.01.2013 and made her sign on some blank papers threatening to kill her and accused Mr.Rohtash Singh showed a pistol to her. She denied the suggestion that she had written in her complaint and told the police in her statement that on 08.02.2013 accused Mr.Kushank, Mr.Tarun, Mr.Rohtash Singh and Ms.Manju showed a pistol to her and took her to Arya Samaj Temple Dwarka, where they forced her to go through a second marriage with accused Mr.Kuldeep after taking money from him and after intoxicating her sent her with accused Mr.Kuldeep. She denied the suggestion that she had written in her complaint and told the police in her statement that accused Mr.Kuldeep took her to a rented accommodation in Hari Nagar No. B 22, where he kept her tied with a rope and forcibly had physical relations with her. She denied the suggestion that she had written in her complaint and told the police in her statement that on 25.03.2013 some how she managed to escape and came to her parents. She admit that she has made the statement under section 164 Cr.P.C before the learned Metropolitan Magistrate, but the same was made at the instance of some well wisher. She denied the suggestion that when she was produced by the police before the doctor in DDU Hospital, she had told the doctor in the history that accused Mr.Kushank and his family had doped with some drugs and had illegally got her married Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code. State versus Kuldeep Kumar & Ors. -:: Page 8 of 14 ::-
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with accused Mr.Kuldeep who used to beat and rape her regularly. She denied the suggestion that she had also told the doctor that after she had married accused Mr.Kushank due to his threats to kill her and her brother, he used to beat her. She voluntarily stated that she had not told anything to the doctor. She denied the suggestion that due to settlement effected between her self and accused Mr.Kushank, Mr.Rohtash Singh, Ms.Manju Bala and Mr.Tarun Kumar, she had deposed falsely in the present case and have absolved all the accused persons. She denied the suggestion that she has been won over by all the accused persons. She denied the suggestion that as she is now living with accused Mr.Kushank she has not deposed anything incriminating against all the accused persons. She denied the suggestion that she is deposing falsely. She voluntarily said that she again prays that all the accused persons may be acquitted.
9. She has also been cross examined on behalf of all the accused persons and she admitted that accused Mr.Kuldeep Kumar has not committed any offence and that she did not have any physical relations with him. She admitted that accused Mr.Kuldeep is innocent. She admitted that accused Mr.Kushank, Mr.Rohtash Singh, Ms.Manju Bala, Mr.Tarun Kumar and Ms.Suraj Mukhi have not committed any offence. She admitted that all the accused persons are innocent.
10. In the circumstances, as PW1, the prosecutrix, who is the star witnesses has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to all the accused persons, the prosecution evidence is closed, declining the request of the Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code. State versus Kuldeep Kumar & Ors. -:: Page 9 of 14 ::-
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Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix, the material witnesses, has not supported the prosecution case and is hostile.
11. Statements under section 313 of the Cr.P.C. of all the accused persons are dispensed with as there is nothing incriminating against them when the prosecutrix, PW1, is hostile and nothing material has come forth in her cross examination by the prosecution.
12. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
13. In the light of the aforesaid nature of deposition of the prosecutrix, PW1, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code.
State versus Kuldeep Kumar & Ors. -:: Page 10 of
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14. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
15. Consequently, no inference can be drawn that the accused persons namely Mr. Kaushank, Mr.Rohtash Singh, Ms. Manju Bala, Mr. Tarun Kumar and Ms. Suraj Mukhi are guilty of entering into a criminal conspiracy, threatening, intoxicating the prosecutrix, abducting her and abetting her rape by accused Mr.Kuldeep Kumar. No inference can also be drawn that the accused Mr.Kuldeep Kumar is guilty of entering into a criminal conspiracy with the other accused, confining and raping the prosecutrix. No case is made out against all the accused persons as there is no incriminating evidence against them
16. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that all the accused persons are innocent and have not committed any offence. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
17. Consequently, no inference can be drawn that the accused Mr. Kuldeep Kumar is guilty of the charge under sections 120-B, 342 and 376 read with section 120-B of the IPC and the other accused persons namely Mr. Kaushank Kumar, Mr.Rohtash Singh, Ms. Manju Bala, Mr. Tarun Kumar and Ms. Suraj Mukhi are guilty of the charge offence under sections 120-B, 506, Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code.
State versus Kuldeep Kumar & Ors. -:: Page 11 of
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328, 366, 109 and 376 read with section 120-B IPC. There is no material on record to show that on the allegations that on or prior to 08.02.2013 at un- known time and within the jurisdiction of Police Station Hari Nagar, accused Mr.Kuldeep Kumar along with other accused persons Mr.Rohtash Singh, Mr. Kushank, Ms. Manju Bala, Mr. Tarun Kumar, Ms. Suraj Mukhi conspired to do an illegal act i.e. to get the prosecutrix (name withheld to protect her iden- tity) married to accused Mr.Kuldeep forcibly and to abet the offence of rape on the prosecutrix by accused Mr.Kuldeep. In pursuance of the above said conspiracy on 08.02.2013 all accused persons threatened the prosecutrix and brought her to Arya Samaj Mandir, Dwarka where accused Mr.Rohtash Singh, Mr. Kushank, Ms. Manju Bala, Mr. Tarun Kumar, Ms. Suraj Mukhi took money from accused Mr.Kuldeep and forced the prosecutrix to under go marriage with accused Mr.Kuldeep despite knowing that she was already mar- ried Mr.Kushank and thereafter intoxicated her and sent her with co-accused Mr.Kuldeep and abetted the offence of rape by accused Mr.Kuldeep on the prosecutrix
18. From the above discussion, it is clear that there is no evidence of the prosecution against all the accused persons and the prosecution has failed to establish criminal conspiracy, threat, intoxication, abduction and abetment of rape against accused Mr.Rohtash Singh, Mr. Kushank Kumar, Ms. Manju Bala, Mr. Tarun Kumar, Ms. Suraj Mukhi and the prosecution has failed to establish criminal conspiracy, illegal confinement and rapea gainst accused Mr.Kuldeep Kumar. The evidence of the prosecutrix, PW1, makes it highly Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code.
State versus Kuldeep Kumar & Ors. -:: Page 12 of
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improbable that such an incident ever took place. The evidence of other prose- cution witnesses is formal or official.
19. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused persons namely Mr.Rohtash Singh, Mr. Kushank Kumar, Ms. Manju Bala, Mr. Tarun Kumar, Ms. Suraj Mukhi for the offence under sections 120-B, 506, 328, 366, 109 and 376 read with section 120-B of the IPC. Prosecution has failed to bring home the charge against accused Mr.Kuldeep Kumar for the offence under sections 120-B, 342 and 376 read with section 120-B of the IPC.
20. Consequently, accused Mr. Kuldeep Kumar is hereby acquitted of the offence under sections 120-B, 342 and 376 read with section 120-B of the IPC and accused Mr. Kushank Kumar, Mr. Rohtash Singh, Ms. Manju Bala, Mr. Tarun Kumar and Ms. Suraj Mukhi, are hereby acquitted of the charge for the offence under sections 120-B, 506, 328, 366, 109 and 376 read with section 120-B of the IPC.
21. Compliance of section 437-A Cr.P.C. is made in the order sheet.
22. Case property be destroyed after expiry of period of limitation of appeal.
23. It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code.
State versus Kuldeep Kumar & Ors. -:: Page 13 of
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convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the prosecutrix is hostile, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
24. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 02th day of May, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 119 of 2013.
Unique Case ID Number : 02401R0613972013.
FIR No. 143/2013, Police Station Hari Nagar, Under sections 342/376/506/120-B/109/34 of the Indian Penal Code.
State versus Kuldeep Kumar & Ors. -:: Page 14 of
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