Delhi District Court
State vs . 1 Mohd. Tahir, on 29 November, 2010
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.: 73/2008
Unique ID No.: 02404R00166632008
FIR No.: 130/08
PS: Swaroop Nagar
u/Section 307/323/34 IPC
State Vs. 1 Mohd. Tahir,
S/o Mohd. Habib Sikander,
R/o C-2/530, J.J. Colony,
Bhalaswa Dairy, Delhi.
2 Mohd. Habib Sikander,
S/o Mohd. Issa,
R/o C-2/530, J.J. Colony,
Bhalaswa Dairy, Delhi.
3 Abdul Kalam,
S/o Timbal Wahid,
R/o B-4/185, J.J. Colony,
Bhalaswa Dairy,
Delhi.
Date of Institution: 22.10.00
Date of conclusion of Arguments: 26.10.10
Date of pronouncement of Judgment: 09.11.10
JUDGMENT
1 All the three accused have been charge-sheeted by PS Swaroop Nagar for commission of offences u/s 307/323/34 IPC.
2 On 16.06.2008 information was received at PS Swaroop Nagar regarding one big quarrel (Jabardast Jhagda) at C-2/530, J.J. Colony, Bhalaswa Dairy. DD No. 50B was recorded and ASI Daya Nand was entrusted with investigation. He FIR No.: 130/08 PS: Swaroop Nagar page 1 of 17 reached at the spot along with Ct. Ramesh and learnt that injured had already been removed to BRJM Hospital. He went there and collected MLC of injured Jamil who had been declared unfit for making statement. He, however, could not meet any eyewitness at the hospital. He contacted Rahis (son of injured) on 18.06.2008 who told that his father had already been referred to RML Hospital. During further investigation, statement of eyewitness Zarina (wife of injured) was recorded. Statement of injured Mohd. Jamil was also recorded on 18.07.2008 and he had given statement by nods and signals as he was not in a position to speak.
3 As per prosecution story, on 16.06.2008, injured was rebuking his son Irshad on the point of his studies. His neighbour Mohd. Tahir got furious. Accused Mohd. Tahir misunderstood that injured was abusing him instead. He came there armed with cricket bat and wicket. His father i.e. accused Habib Sikander and Jija i.e. accused Abdul Kalam also came there and Mohd. Jamil was given blow with bat on his head with bat and was also given injuries on his arms and legs with wicket. He fell unconscious and was removed to hospital by PCR.
4 It is in these circumstances that all the accused have been arrested and charge-sheeted.
5 It will not be out of place to mention here that initially case had been registered u/s 308/323 IPC but at the time of filing of charge-sheet, all the accused had been challaned for offence u/s 307 IPC in place of Section 308 IPC.
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6 Case was received on committal by this Court on
22.10.2008. All the accused persons were charged u/s 307/34 IPC vide order dated 19.03.2009. They all pleaded not guilty and claimed trial.
7 Prosecution was directed to adduce evidence and has examined fourteen witnesses in all viz PW1 Smt. Zarina (wife of injured/eyewitness), PW2 Imrad Ali (eyewitness), PW3 HC Brij Pal Singh (duty officer), PW4 HC Naresh Pal (MHCM), PW5 Sarafat Ali (eyewitness), PW6 Mohd. Jamil (injured), PW7 Sh. Jaswant Singh (Medical Record Clerk), PW8 Ct. Bhupender (DD Writer), PW9 Ct. Ravinder Singh, PW10 Ct. Bijender, PW11 ASI Shyam Sunder, PW12 Dr. Neeraj Chaudhary, PW13 ASI Daya Nand (investigating officer) and PW14 Dr. Manu Ranjan (from RML Hospital).
8 All the three accused, in their respective statements u/s 313 Cr.P.C., pleaded innocence and claimed that they had been falsely implicated. They did not lead evidence in defence.
9 It will be pertinent to mention here that as far as accused Mohd. Tahir is concerned, he had also made a report to the police claiming that he had been stabbed with some sharp object by Mohd. Jamil (injured herein) and on the basis of such report, FIR No. 129/08 was registered. It would be equally pertinent to mention that vide separate judgment of even date, accused Mohd. Jamil in that cross-case has been acquitted.
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10 I have heard Ms. Purnima Gupta, learned Addl. P.P.
and Sh. R.C. Verma, learned defence counsel and carefully gone through the entire material available on record.
11 Learned Addl. P.P. has contended that prosecution has been able to prove its case to the hilt. She has contended that injured and his wife have supported the case of prosecution in toto and there is no reason to disbelieve the prosecution version. She has argued that injured Mohd. Jamil was given severe blow on his head and he fell unconscious. He was immediately rushed to hospital and since his condition was found to be precarious, he was referred to RML Hospital. She has also argued that due to blow received by Mohd. Jamil, he virtually became speechless and his right hand became paralytic. She has also argued that injury was found to be serious and blow was given on vital part of the body which makes it a clearcut case under Section 307 IPC. She has also argued that other independent witnesses have also supported the prosecution story and medical evidence also supports ocular evidence.
12 Sh. Verma has, on the other hand, refuted all the aforesaid contentions. He has also filed written arguments. It has been contended by him that no such incident had taken place and on the other hand Mohd. Tahir had been stabbed with knife by Mohd. Jamil and police did not investigate the case properly. He has also argued that there are material contradictions amongst the testimony of alleged spot witnesses. He has also argued that it is not clear whether injury was internal or whether any blood had also oozed out.
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He has also contended that it is not clear as to how the incident started and who was allegedly beaten first as injured and his wife are coming up with contradictory versions. He has contended that if prosecution case is to be believed then Zarina also accompanied her husband to the hospital but as per prosecution story, no eyewitness was available till 18.06.2008 which clearly reveals that Zarina has been introduced subsequently in order to pad up the case of prosecution and she had not actually seen any such alleged incident.
13 I have given my thoughtful consideration to the rival contentions and carefully gone through the entire material available on record.
14 On careful perusal of record, it is noticed that testimony of PW1 Zarina (wife of injured), PW2 Imrad Ali (eyewitness), PW5 Sarafat Ali (eyewitness) and PW6 Mohd. Jamil (injured himself) holds the key.
15 As is apparent from DD No. 50B, after information was received, investigation was entrusted to ASI Daya Nand. DD No. 50B has been proved as Ex. PW8/A and ASI Daya Nand could not meet any eyewitness either at the spot or at the hospital till 18.06.2008. I have seen the testimony of PW13 ASI Daya Nand. He has deposed that he had reached at BJRM Hospital and found Mohd. Jamil admitted in the hospital. He has also deposed that he collected MLC of injured and as per MLC, injured was unfit for making statement and was referred to RML Hospital but he could not find any eyewitness of the FIR No.: 130/08 PS: Swaroop Nagar page 5 of 17 incident and DD entry was accordingly kept pending. As per PW1 Zarina, who had allegedly seen the incident, after her husband was hit and she herself was also given injury and she informed police by dialing 100 and police vehicle had come at the spot and took her husband to BJRM Hospital and from there he was referred to RML Hospital. She also claimed in her cross-examination that police had come at the spot in her presence and her husband was lying unconscious. She claimed that police had recorded her statement that day. Fact remains that there is no such statement of her of that day. On the other hand, one attested statement of Zarina 25.06.2008 is found to be on record which even bears thumb impression of the witness. It is not understandable as to why her thumb impression was taken. It was not legally required. Moreover, it would be hardly believable that Zarina would not be there along with her husband either at BJRM Hospital or at RML Hospital. I have seen the testimony of Zarina. I have not been able find out anything which may suggest that she has been introduced as eyewitness subsequently. It appears to me that she had accompanied her husband to the hospital and remained with him at BJRM Hospital as well as at RML Hospital and investigating agency is to be blamed for not immediately recording statement of Zarina.
16 It would be also interesting to mention that if rukka is to be believed then ASI Daya Nand could not meet injured at BJRM Hospital but as per his own deposition made before the Court, he had met injured. He also deposed that injured had been referred to RML Hospital and he then visited RML Hospital. If it is so, then he should have recorded statement of FIR No.: 130/08 PS: Swaroop Nagar page 6 of 17 Zarina without any delay.
17 Naturally, in such a situation, the first concern is to provide appropriate medical attention to injured. Since there was clotting and loss of speech, naturally, Smt. Zarina was more worried in taking care of her husband. However, it was still the primary duty of the investigating agency to have recorded her statement as early as possible. Prosecution case, however, cannot be thrown away merely because of this investigational lapse.
18 Let me now take up the testimony of injured Mohd. Jamil. Initially, when his examination was recorded on 01.08.2009, it was found that he was unable to speak and he could give answers to the questions by signal and accordingly his deposition was recorded and in his deposition, he indicated that Mohd. Tahir had caused injuries on his head with bat. He also identified bat as Ex. P-1. He indicated towards accused Mohd. Kalam claiming that he was armed with wicket and also indicated towards accused Sikander @ Habib and gave signal in order to demonstrate that he had been grappled/caught by him at time of incident. He also indicated that accused Mohd. Tahir was in drunken condition at the time of incident. His further examination was recorded on 18.02.2010 but by that time he had recovered little bit as he was able to speak with the assistance of his wife and accordingly his further examination was recorded in which he had given date of incident as 16th June and time of occurrence as 8.00/8.30 PM. When asked as to what was the reason behind the quarrel, he revealed that it related to water of hand-pump and son of FIR No.: 130/08 PS: Swaroop Nagar page 7 of 17 accused Mohd. Tahir was putting soil in the hand-pump pipe. His wife Zarina asked son of accused not to do that upon which Mohd. Tahir hit his wife with bat. He further deposed that he was inside his house and was cooking and saw the incident from the door of his house. When he came out to rescue his wife then he was caught by accused Mohd. Habib and accused Mohd. Tahir hit him on his head with bat and accused Abdul Kalam had hit him with wicket.
19 Undoubtedly, PW6 Mohd. Jamil and his wife PW1 Zarina are coming with different versions with respect to manner in which the incident had started and also with respect to the fact as to who was beaten first. If PW6 Mohd. Jamil is to be believed then incident started on the question of putting soil in the hand-pump by son of accused Mohd. Tahir and his wife was beaten up first. However, his wife has deposed that incident occurred when her husband was rebuking her son Irshad on the issue of studies upon which accused Mohd. Tahir started abusing Mohd. Jamil as accused thought that Mohd. Jamil was rebuking him instead of Irshad. She also deposed that all accused had beaten up her husband first and when she tried to rescue her husband, she was also given blow with same bat and wicket. However, such contradictions cannot be said to be major contradicton. Minor contradictions are bound to appear in such type of matters and it is not expected that witnesses would depose with complete precision as if they were having photogenic memory. I also cannot be oblivious of the fact that due to the blow given on his head, Jamil had fallen unconscious and remained admitted in hospital for quite some time. He also had loss of speech and his right hand FIR No.: 130/08 PS: Swaroop Nagar page 8 of 17 stopped working because of the incident in question. He was treated for evacuation of clot and his injury was opined as dangerous. In such type of situation, even if he has come up with slight deviation, it really does not render entire prosecution story untrustworthy or unworthy of credence.
20 PW1 Zarina has categorically deposed that all the three accused persons had come there and accused Sikander had caught hold of injured with his both hands and accused Mohd. Tahir hit her husband with wicket. She also deposed that Mohd. Kalam also gave blows with the help of cricket wicket on arms and legs of her husband. When she tried to rescue her husband, accused Mohd. Tahir had also hit her with same bat and wicket and she also received injuries on her kulha. There is no MLC before me showing that Zarina was also medically examined or was injured in the incident. In her cross-examination, she admitted that she had refused to undergo medical examination as her first priority was to look after her husband.
21 Accused are not facing trial for causing any injury received by Zarina. Even if there is no MLC of Zarina, it does not make the prosecution story unbelievable. I have seen her cross-examination as well and I am of the opinion that defence has not been able to extract anything from her which may show that prosecution story is false or wrong or which may suggest that she had never seen the incident and had been introduced as witness subsequently. I have seen the cross- examination of PW6 Mohd. Jamil and he has also withstand the cross-examination. Undoubtedly, there is some confusion FIR No.: 130/08 PS: Swaroop Nagar page 9 of 17 whether blood had oozed out from the alleged injury received by Mohd. Jamil or not. According to Mohd. Jamil, his banian was drenched with blood but it was not seized by the police. His wife deposed to the contrary as according to her, injury was internal. However, such contradiction does not seem to be significant one.
22 As far as testimony of PW5 Sarafat Ali is concerned, he has vastly improved from his earliest stand. He never claimed himself to be an eyewitness of the incident and as per case of prosecution, in his presence, questions were asked from Mohd. Jamil during investigation and at that time Mohd. Jamil had given answers by nodding his head and he merely signed as witness. However, in witness box, PW5 Sarafat Ali has come up with huge improvement and according to him, he had even seen the incident with his own eyes. Since he has come up with drastic improvement, I am not inclined to reply on him.
23 As far as PW2 Imrad Ali is concerned, he has supported the case of prosecution but regarding accused Abdul Kalam, he claimed that he reached at the spot only after the incident was over. Learned defence counsel has contended that as far as accused Abdul Kalam is concerned, his presence at the spot becomes highly doubtful as according to material spot witnesses, he had reached at the spot after the incident was over and, therefore, prosecution case does not stand proved. Undoubtedly, PW2 Imrad Ali has not come up with anything incriminating against accused Abdul Kalam. He was even grilled by the prosecution in this regard. In his FIR No.: 130/08 PS: Swaroop Nagar page 10 of 17 such cross-examination conducted by learned Addl. P.P., he deposed that on hearing shouts, he came at the spot and at that time he did not see accused Abdul Kalam at the spot. It is nobody's case that incident had continued for a longer duration. Such incident is usually over in a flash and it seems quite possible that when Imrad Ali had reached at the spot on hearing shouts, accused Abdul Kalam might have run away from the spot after inflicting injuries with the help of his other relatives. Moreover, testimony of injured and his wife raise accusing fingers towards accused Abdul Kalam as well. Merely because Imrad Ali has failed to level any allegation against Abdul Kalam, it cannot be straightaway held that accused Abdul Kalam is liable to be exonerated completely.
24 As is apparent from the case of prosecution, injured Mohd. Jamil was first taken to BJRM Hospital from where he was shifted to RML Hospital. His MLC prepared at BJRM Hospital has been proved as Ex. PW12/A. PW12 Dr. Neeraj Chaudhary has proved the same. Such MLC was prepared by Dr. Nadeem. He was Junior Resident at that time and injured was further examined by Dr. Yashwant, Senior Resident (Orthopedic). Dr. Pawan was CMO at the relevant point of time and according to Dr. Neeraj Chaudhary, all these three doctors had left services of BJRM Hospital. Injured was examined at RML Hospital by Dr. R.S. Jaggi. He was Neurosurgeon but he has also left RML Hospital and according to Medical Record Clerk of RML Hospital, there was no other doctor in Neuro Department who might be conversant with the handwriting and signatures of Dr. R.S. Jaggi. PW7 Sh. Jaswant Singh, Medical Record Clerk has only proved OPD Registration Card FIR No.: 130/08 PS: Swaroop Nagar page 11 of 17 as Ex. PW7/A. Discharge report has been duly proved as Ex. PW14/A. According to PW14 Dr. Manu Ranjan, Senior Resident, Neuro Surgery, RML Hospital, patient Mohd. Jamil was admitted in their hospital on 17.06.2008 and was discharged on 25.06.2008. According to him, patient was referred with alleged history of assault and he was operated upon for left FP trephine craniotomy for evacuation of clot and injury was opined as dangerous. He also deposed that patient was not able to speak because of the injuries he had suffered. He has also made reference about GCS score. It was mentioned as E3 V1 and M5. E stands for eye opening, V for voice and M for motor and pursuant to the court question, Dr. Manu Ranjan enlightened the Court about the GCS score of the normal person. According to him, GCS score of normal person is E4 V5 and M6. Thus, all the values were found to be on lower side and voice value was reduced to 1 from normal value of 5. In his cross-examination, he admitted that he himself had not operated upon the patient and even discharge report was not prepared by him and same was not either prepared in his presence. He, however, claimed that he was supervising the treatment and discharge report was based on other medical documents. He also admitted that he had not physically examined Mohd. Jamil and his observations were based on case-sheet and discharge summary.
25 Undoubtedly, it would have been much better had the concerned doctor graced the witness box but prosecution case cannot be shut out merely due to the fact that concerned doctor has not graced the witness box. Moreover, in the case of Pale Ram Vs. NCT of Delhi 2003 I AD (Cr.) DHC 10, it FIR No.: 130/08 PS: Swaroop Nagar page 12 of 17 has been observed that if prosecution fails to produce the concerned doctor, the court should on its own elicit the expert opinion so as to deliver justice which should not only be done but should seem to be done also. In such eventualities, the prosecution or the court should invariably resort to provisions of Section 45 of the India Evidence Act. It has also been observed as under:
".......... To term an injury which has been opined as 'dangerous' of 'grievous' as simple injury merely because the doctor who opined it could not be examined either due to non-availability would be travesty of justice".
26 I do not find any reason to disbelieve the medical record which even otherwise corroborates the ocular version. Let me now see whether it's a case of attempt of murder or not. Victim was admittedly given blow on his head with cricket bat. But, intention was palpably not to straightaway eliminate him. In the case of "Budhi Lal V. State of Uttarakhand"
2009 Crl. J. 360, it has been observed as under:-
"............ Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere FIR No.: 130/08 PS: Swaroop Nagar page 13 of 17 possibility. The words "bodily injury ....... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature."
27 Hon'ble Supreme Court in Mahesh Balmiki alias Munna V. State of M.P. (2000) 1 SCC 319 : (1999 CRI LJ 4381) has held that the question with regard to the nature of the offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him.
28 In a recent case of Anil Kumar Versus. State (Criminal Appeal 482/2008) (DOD: 18.04.2009), accused had picked up a chisel and gave multiple stab injuries on vital part of the body i.e. chest and injuries were even found to be sufficient to cause death and Ld Trial court held it to be a case u/s 302 IPC. On appeal, conviction was altered to one u/s 304 (Part1) IPC.
29 Reference be also made to case of Camilo Vaz V. State of Goa, (SC) 2000 Crl. L. J. 1816 where also danda blow given on head proved to be fatal and accused was convicted u/s 304 IPC and not u/s 302 IPC.
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30 Here, in the instant case, following important
circumstances are noteworthy:
(i) Initially the accused persons were booked for commission of offence u/s 308 IPC but at the time of filing of charge- sheet, Section 307 IPC was substituted. Thus, during the investigational stage also, it was felt by the police that it was a case of attempt of culpable homicide not amounting to murder and not of attempt of murder. I do not find any drastic change which could have necessitated such conversion.
(ii) Exact origin of the dispute is not very clear and it can be safely assumed to be a case of sudden quarrel. Moreover, a cross-case was also registered though that cross-case has resulted in acquittal.
(iii) Incident took place in open and if accused had any real intention to eliminate the injured then they would not have dared to inflict injuries in open in full public gaze.
(iv) Weapon of offence is a simple cricket bat and not a lethal or dangerous weapon.
(v) Incident was over in a flash and the degree of probable death was remote.
31 In view of aforesaid facts and the afore referred Judgments, I find it to be a case of attempt to commit culpable homicide not amounting to murder instead of it being a case of FIR No.: 130/08 PS: Swaroop Nagar page 15 of 17 attempted murder.
32 Investigational aspect is not in much dispute though, I have already observed that IO should not have waited for long while recording the statements of eyewitness. PW3 HC Brij Pal Singh was posted as duty officer at the relevant point of time and he has proved FIR as Ex. PW3/A. PW4 HC Naresh Pal Singh was posted as MHC(M). He has proved relevant entries maintained in Register No. 19 as Ex. PW4/A and PW4/B. PW8 Ct. Bhupender was posted as DD Writer at PS Swaroop Nagar and has proved DD No. 50B as Ex. PW8/A. 33 Accused Abdul Kalam was apprehended subsequently and on the basis of his disclosure, wickets were recovered from his house at his instance. Such fact has been proved by PW9 Ct. Ravinder Singh and PW11 ASI Shyam Sunder.
34 Undoubtedly, PW10 Ct. Bijender faltered on the point of identification of accused Mohd. Tahir. He, instead, claimed Mohd. Habib as Mohd. Tahir. He was cross-examined by the prosecution with the permission of the Court and leading question was put to him and then he made amends and correctly identified accused. Incident is of the year 2008. Police officials are on duty in numerous cases and such type of mistake regarding identification can occur. Fact, however, remains that injured and his wife have categorically identified all the accused persons and, therefore, testimony of PW10 Ct. Bijender does not adversely affect the case of prosecution.
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35 PW11 ASI Shyam Sunder has also deposed that
accused Sikander surrendered before the Court and he has proved his arrest memo and personal search memo.
36 In view of my foregoing discussion, I hold that all the three accused persons have attempted to commit culpable homicide not amounting to murder and resultantly caused injuries on the person of Mohd. Jamil. All the three accused persons were acting in furtherance of their common intention and they all had come together and blow on the head was given by accused Mohd. Tahir in furtherance of such common intention. All the accused persons are accordingly held guilty and convicted for offence u/s 308/34 IPC. Announced in the open Court On this 09th day of November 2010.
(MANOJ JAIN)
ASJ/Special Judge (NDPS)
Outer District:Rohini Courts:Delhi
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State Vs. 1. Mohd. Tahir
2. Mohd. Habib Sikander
3. Abdul Kalam
FIR No.: 130/08
PS: Swaroop Nagar
u/Section 308/34 IPC
29.11.2010, Monday
Present: Ms. Purnima Gupta, Ld. Addl. P.P. for the State.
All the convicts in person with counsel Sh. R.C. Verma.
Reports from Probation Officer have already been received. I have perused the same very carefully and there does not seem to be anything against the convicts in such reports which may disentitle them from getting the benefit of probation.
As per learned defence counsel, convicts have no previous history and this happens to be their first case. It has also been argued that no useful purpose would be served by sending them behind the bars where there is every chance of their coming in contact with hardened criminals which can also spoil their future.
Undoubtedly, accused should have shown selfrestraint and should not have taken the law into their hands but fact remains that they have no bad history.
Keeping in mind the overall facts and circumstances of the case, age of the convicts, their past FIR No.: 130/08 FIR No.: 130/08 PS: Swaroop Nagar page 18 of 17 PS: Swaroop Nagar :2: clean antecedents, circumstances leading to the incident in question, the period already undergone by them behind the bars during the investigation and also keeping in mind the aforesaid reports furnished by Probation Officer, instead of sentencing them at once to any punishment, I direct that all the three convicts be released on their furnishing a bond of Rs. 5,000/ each undertaking therein to appear and receive the sentence as and when called upon so within a period of six months from today and in the meantime to keep peace and be of good behaviour.
Simultaneously, as per Section 5 of Probation of Offenders Act, I also direct each of the convicts to deposit a sum of Rs. 10,000/ each as compensation. Such amount has been deposited and such total total amount of Rs. 30,000/ be disbursed to the injured Mohd.
Jamil after expiry of period of appeal or as per the outcome of the appeal, if any as the case may be.
Bonds have also been furnished and accepted.
Previous bail bonds are cancelled. Previous sureties are also discharged.
A copy of judgment and order be given to each convicts free of cost.
FIR No.: 130/08
PS: Swaroop Nagar :3:
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Main file be consigned to record room and a separate file be opened up for purposes of disbursement of compensation and be placed before me on 03.03.2011.
(MANOJ JAIN)
ASJ/Special Judge (NDPS)
Outer District:Rohini Courts:Delhi
29.11.2010
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