Delhi District Court
Wildlife vs . Balwant Rai Etc. on 30 May, 2017
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IN THE COURT OF SH. AJAY GARG: ACMM(SPL.ACTS):
CENTRAL DISTRICT:TIS HAZARI COURTS, DELHI
CC No. 302673/16
Wildlife Vs. Balwant Rai etc.
U/s 55 Of Wild Life (Protection) Act, 1972
JUDGMENT
(a) Date of commission of offence : 13.04.1997
(b) Name of complainant : Wildlife Department
(c) Name, parentage, residence : 1. Balwant Rai
of accused S/o Sh. Suraj Singh
R/o Village Sathar
PS Rajgarh, Distt.Sirmore,
Himachal Pradesh.
2. Rumarsan S/o. Sh. Het Ram
Village Swarana PS Rajgarh
Distt. Sirmore, H.P.
3. Parminder S/o Sh.Harbhajan
R/o R284A, Ramesh Park,
Laxmi Nagar, Delhi.
(d) Offence complained of/ proved : U/s 49 of the Wild
Life(Protection) Act,1972
punishable U/s 51 of
the said Act.
(e) Plea of accused : Pleaded not guilty
(f) Final order : Accused no. 1&2 convicted
Accused no. 3 acquitted.
(g) Date of such order : 30.05.2017
WLI Vs. Balwant Rai etc. CC No. 302673/16 1 of 19
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Date of institution of complaint : 08.07.1997
Arguments heard/order reserved : 26.05.2017
Date of Judgment : 30.05.2017
Brief statement of the reasons for the decision:
1.The complainant through WLI Sh. S.S. Negi filed the present complaint u/s 55 of Wild Life (Protection) Act, 1972 (for short the 'Act') against the all the accused persons for commission of offence punishable U/s 49 and 49(b)(1) of the Act punishable U/s 51 of the said Act.
2. As per the complaint on 13.04.97, 15.04.97 and 16.04.97, Sh. Vijay Pal Singh, SI Special Staff, East District alongwith other members of the raiding team seized the following wild animal skins from the accused vide seizure memo dated 13.04.97, 15.04.97 & 16.04.97:
(i) Lepard Skin uncured (adult) 02 pcs. (ii) Baby Leopard Skin uncured 01 pc. (iii) Leopard cat skin uncured 01 pc.
3. Further it is stated in the complaint that the seized property was identified by Sh. Raj Vir Singh, Wildlife inspector vide identification memo dated 18..04.97. The accused were produced before the Court on 17.04.97 and vide order dated 09.05.97 of the Court, the seized case property was ordered to be kept in wildlife Deptt, Delhi.
4. The accused were summoned. Copies of complaint and of WLI Vs. Balwant Rai etc. CC No. 302673/16 2 of 19 3 documents were supplied. In precharge evidence, the prosecution examined HC Vijender Singh as PW2, Inspector Vijay Pal Singh as PW3 and WLI S.S. Negi as PW4.
5. PW2 HC Vijender Singh deposed that on 13.04.97 he was posted at Special Staff, East District and at about 1.15 am, he alongwith SI Vijay Pal Singh, Ct. Karamvir and Ct. Mohan was present at pulia on the way of Kalyan Puri to Kondli village. In the meantime, SI Vijay Pal received secret information about a person coming in a blue Maruti Van with a tiger skin and heading to Noida for supplying the same. At about 1.45 a.m, one blue colour Maruti car No. DL2CD7752 came from the side of Kalyan Puri. Accused Parvinder (identified in court) was driving the said car and accused Balwant (identified in court) was sitting in the front seat having a plastic bag in his hand. The vehicle was stopped and checked. One tiger skin wrapped in a bed sheet was found. The same was seized vide seizure memo Ex. PW2/A, the said Maruti van was taken into possession vide memo Ex. PW2/B. He further deposed that SI Vijay Pal prepared rukka an got the case registered through Ct. Karamvir. IO prepared the site plan, interrogated the accused persons and arrested them and conducted personal search vide personal search memos Ex. PW2/C and PW2/D. IO recorded disclosure statement of accused Balwant Ex. PW2/E. The accused were taken into custody and produced before the Court. IO obtained police custody of accused Balwant Rai for four days. After obtaining permission from DCP, accused Balwant Rai was taken to Rajgarh for further recovery pursuant WLI Vs. Balwant Rai etc. CC No. 302673/16 3 of 19 4 to his disclosure. On way accused Balwant Rai changed his disclosure statement which was recorded vide Ex. PW2/F and disclosed about his relative i.e. accused Rumarsan having tiger skin. Thereafter, they apprehended accused Rumarsan from the road with a jute bag in his hand containing one tiger skin. The same was taken into possession vide seizure memo Ex. PW2/G and disclosure statement of accused Rumarsan Ex. PW2/H was also recorded. He was arrested vide personal search memo Ex. PW2/I. He further deposed that one letter was recovered from the possession of accused Rumarsan which was taken into possession vide memo Ex. PW2/J. On the next day, house of accused Rumarsan was searched pursuant to his disclosure statement and got recovered one tiger skin and one skin of kid/cub of tiger. Both the skins were taken into possession vide memo Ex. PW2/K. Search memo in respect of the house was prepared vide memo Ex. PW2/L. This witness identified the case property in the Court as Ex. P1 & P2, jute bag as Ex. P3 and bed sheet as Ex. P4. He also identified the skin of leopard and one skin of leopard cat produced in a bag as Ex. P5 & Ex. P6. This witness was not cross examined at precharge stage.
6. PW3 Inspector Vijay Pal Singh deposed on the same lines of PW
2. He also deposed about the secret information received by him, apprehension of the accused persons and investigations conducted and proved various documents/memos prepared by the raiding team. He further deposed about rukka Ex. PW3/A and the site plan Ex. PW3/B prepared by him, pointing out memo Ex. PW3/D. This witness identified WLI Vs. Balwant Rai etc. CC No. 302673/16 4 of 19 5 the case properties Ex. P1 to P6. He was crossexamined by Ld. Defence counsel for accused Parvinder.
7. PW4 WLI S.S. Negi deposed that on 09.05.97, on receipt of information from PS Kalyan Puri, Special Staff (East), he appeared in the Court where SI Vijay Pal Singh handed over the case property to him. He further deposed that during investigation WLI R.V. Singh prepared identification memo dated 18.4.97 Ex. PW4/A. He further deposed that he prepared the complaint Ex. PW4/B and filed the same before the Court.
8. Thereafter, a charge u/s 51 of Wild Life (Protection) Act, 1972, was framed against all the three accused on 07.01.2008 for contravention of provisions of section 49 & 49B(1) of the Act to which they pleaded not guilty and claimed trial. Thereafter, on an application moved on behalf of complainant, amended charge was framed U/s 49, 49(B)(1) punishable U/s 51 of the Act against accused no.2 Rumarsan and U/s 39,49&49(B)(1) of the Act against accused no. 1 Balwant Rai and accused no. 3 Parminder, on 20.05.2015.
9. In post charge evidence PW2, PW3 and PW4 were tendered for crossexamination and PW5 was examined.
10. PW5 HC Mohan Chand deposed on the lines of recovery witnesses i.e. PW2& PW3 and proved the exhibits which are already WLI Vs. Balwant Rai etc. CC No. 302673/16 5 of 19 6 on record.
11. After completion of post charge evidence, statement of all the accused were recorded u/s 313 Cr.P.C read with section 281 Cr.P.C. wherein they denied the material allegations leveled against them and submitted that they have been falsely implicated in this case.
12. Accused Balwant Rai examined Om Prakash as defence evidence. He deposed that Balwant Rai was with him prior to arrest and was empty handed. The police arrested him from his residence. He was crossexamined by Ld. APP for the State.
13. It is a matter of record that on application U/s 311 Cr.P.C., PW4 Sh. S.S. Negi recalled for further examination in chief wherein he identified the case property i.e. three leopard skin Ex. P1 and one leopard cat skin Ex. P2. He further identified signature of WLI Sh. R.V. Singh on memo Ex. PW4/A.
14. Thereafter, additional statement U/s 313 Cr.P.C. of all the accused were recorded wherein they denied that the case property is recovered from their possession and also denied execution of identification memo.
15. Final arguments heard.
16. I have given my thoughtful consideration to the submissions WLI Vs. Balwant Rai etc. CC No. 302673/16 6 of 19 7 advanced on behalf of the parties and have gone through the relevant records. I have also gone through written arguments filed on behalf of parties and relevant provisions of Wild Life (Protection) Act, 1972.
17. The relevant provisions of section 49 and 49B(1) are reproduced for ready reference:
49. Purchase of captive animal, etc, by a person other than a licensee. No person shall purchase, receive or acquire any captive animal, wild animal, other than vermin, or any animal article, trophy, uncured trophy or meat derived therefrom otherwise than from a dealer or from a person authorised to sell or otherwise transfer the same under this act.
49B. Prohibition of dealings in trophies, animal articles, etc., derived from scheduled animals. (1) Subject to the other provisions of this section, on and after the specified date, no person shall,
(a) commence or carry on the business as
(i)a manufacturer of, or dealer in scheduled animal articles; or [ia)a dealer in ivory imported into India or articles made therefrom or a manufacturer of such articles; or]
(ii)a taxidermist with respect to any scheduled animals or any parts of such animals; or
(iii) a dealer in trophy or uncured trophy derived from any scheduled animal; or
(iv) a dealer in any captive animals being scheduled animals; or
(v) a dealer in meat derived from any scheduled animal; or
(b) cook or serve meat derived from any scheduled animal in any eating house.
18. Complainant has to prove that accused Balwan Rai, Rumarsan and Parminder were found in the possession of two leopard skin (uncured), one baby leopard skin (uncured) and one leopard cat skin (uncured) which they were having for the purposes of trade.
WLI Vs. Balwant Rai etc. CC No. 302673/16 7 of 19 8
19. In order to prove their case, official witnesses have specifically deposed that a team consisting of HC Vijender Singh, Inspector Vijay Pal Singh, Ct. Karamvir and Ct. Mohan was constituted for the purpose of conducting raid and accused Balwant Rai and Parminder came at the spot carrying the case property in a Maruti Van. Both accused were apprehended by them and one leopard skin wrapped in a bed sheet was recovered from the bag found in possession of Balwant Rai. Accused Parminder was driving the said Maruti Van. PW2 admitted in cross examination that accused Parminder was the owner of the vehicle and accused Balwant Rai was the owner of the skin. Admittedly, the alleged bag containing skin was in the custody of Balwant Rai who was sitting next to driver seat. As per PW2&PW3, animal skin was wrapped in bedsheet and was not visible from outside. PW3 also admitted that Balwant Rai hired the vehicle on rent from Parminder. Apart from the fact that accused Parminder was driving the vehicle in which Balwant Rai was found carrying the leopard skin, no linkage or connection has been proved between the two. There is not even an iota of evidence to show that accused Parminder had the knowledge about the animal skin being carried in his vehicle. Case property was not visible from outside being wrapped in bed sheet. Use of alleged vehicle for hiring purposes is neither verified nor denied. Now as there is no direct evidence of his involvement, prosecution has to establish inevitable chain of circumstantial evidence leading to the only hypothesis of guilt of Parminder.
WLI Vs. Balwant Rai etc. CC No. 302673/16 8 of 19 9
20. In C. Chenga Reddy and others vs. State of A.P. (1996) 10 SCC 193, it has been observed that :
" In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
21. Further in Padala Veera Reddy vs. State of A.P. and other, AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests,
1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3. 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;
4. the circumstantial evidence in order to sustain conviction must be complete and incapable 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."
WLI Vs. Balwant Rai etc. CC No. 302673/16 9 of 19 10
22. However in case two views are possible, one favouring the accused should be adopted. In the instant case, even if the entire story of prosecution in respect of the role played by Parminder is accepted as gospel truth, still it is not sufficient to bring home the guilt. Hence, accused Parminder is acquitted of all the charges levelled against him.
23. Now as far as role of Balwant Rai and Rumarsan are concerned, recovery has been effected from their effective possession. Even their disclosure statement assumes significance U/s 27 of Evidence Act as it leads to discovery of facts. Witnesses were cross examined at length by Ld. Defence counsels, but Ld. Defence Counsel could not extract anything from the mouth of these witnesses to support the case of accused. These witnesses have successfully passed the test of cross examination.
24. It is pertinent to mention here that during the course of cross examination of the witnesses, Ld. Defence Counsel did not give any suggestion as to why the witnesses are deposing against the accused. Even otherwise, it is not the case of accused that witnesses were inimical towards the accused. Witnesses have totally supported the case of the prosecution regarding the recovery of leopard skins and also they all are corroborating each other on all material aspects and there is no inconsistent contradictions in their statement. Their statements on record are found to be cogent, inspires the confidence of the Court and WLI Vs. Balwant Rai etc. CC No. 302673/16 10 of 19 11 there is no reason to disbelieve the same. Further, minor discrepancies which have been pointed out, I am of the view that they are not of such nature which create infirmity in the complainant's case. I do not find any reason as to why complainant would falsely implicate the accused. Further non joining of public witnesses from the spot does not affect the merits of the case specially when efforts were taken in this regard by the raiding team. As recovery is effected pursuant to disclosure statement of Rumarsan, defence of conscious possession is immaterial.
25. At this stage it would be relevant to go through section 57 of the Act which says:
Presumption to be made in certain cases.____ Where, in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, (trophy, uncured trophy, specified plant, or part of derivative thereof} it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part of derivative thereof}.
26. Hence, as per section 57 of the Act, prosecution has to prove that accused was found in possession/custody or control of any part or deliberately of any animal and until the contrary is proved, which is to be WLI Vs. Balwant Rai etc. CC No. 302673/16 11 of 19 12 proved by the accused, custody of such person will be treated to be unlawful custody. The accused has not lead any evidence to rebut the presumption of Section 57 of the Act. From the cross examination of prosecution witnesses, accused has failed to bring anything on record to rebut the said presumption. Complainant has also complied with the Section 50(4) of the Act wherein any person detained or things seized shall forthwith be taken before a Magistrate.
27. As far as contradictions pointed out in the testimony of complainant witnesses are concerned, minor discrepancies are bound to occur due to lapse of time. However, these discrepancies does not throw away the case of the prosecution as the prosecution witnesses remained consistent regarding the recovery of leopard skin from the possession of accused persons. Further no ground shown for the false implication of the accused. Reliance can be placed upon in case titled as " Jugendra Singh vs State of U.P., reported in II (2012) CCR 431 (SC)=IV (2012) SLT 244=II (2012) DLT (Crl.) 794 (SC)= AIR 2012 SC 2254, held as under: "The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be WLI Vs. Balwant Rai etc. CC No. 302673/16 12 of 19 13 given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
28. Further, minor contradictions, if any, are bound to occur due to and individual appreciation and narration of the facts. It is so held in Shankar vs. State of Karnataka, AIR 2011 Supreme Court 2302 that : "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, namely, errors of memory due to lapse of time or due o mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make WLI Vs. Balwant Rai etc. CC No. 302673/16 13 of 19 14 material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e, materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
29. The Hon'ble Delhi High Court in Criminal Appeal no. 327/2007 titled as "Akbar & Anr. v. State" decided on 29.05.2009 opined that the WLI Vs. Balwant Rai etc. CC No. 302673/16 14 of 19 15 appreciation of ocular evidence is a Herculean task. There is no fixed or strait jacket formula for appreciation of ocular evidence. The judicially evolved principles regarding the appreciation of the ocular evidence in a criminal case can be enumerated as under (1)While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation is shaken as to render it unworthy of belief. (II)If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(III)When eyewitness is examined at length it is quite possible for him to make some discrepancies. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettinsoning his evidence.
(IV)Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
WLI Vs. Balwant Rai etc. CC No. 302673/16 15 of 19 16 (V) Too serious a view to be adopted on mere variations falling in the narration of an incident(either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(VI)By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a videotape is replayed on the mental screen.
(VII)Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(VIII)The powers of observations differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(IX)By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(X)In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the timesense of individuals which varies from person to person.
(XI)Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
WLI Vs. Balwant Rai etc. CC No. 302673/16 16 of 19 17 (XII)A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination by Counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.(These principles have been culled out from the decisions of Supreme Court reported as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cr. LJ 1096, Leela Ram v. State of Haryana, 1997 Cr.LJ 3178 and Tahsildar Singh v. State of U.P., 1959 Cr. LJ 1231).
30. Lastly, this Court is remindful of the dictum of Hon'ble Justice Sh. V.R. Krishna Iyer in the case of Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973)2 SCC 793 wherein it is held that : "Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerations devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that the acquittals are always good regardless of justice to the victim and the community, WLI Vs. Balwant Rai etc. CC No. 302673/16 17 of 19 18 demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of WLI Vs. Balwant Rai etc. CC No. 302673/16 18 of 19 19 the innocent....." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
31. Hence, in view of the above findings, I am of the considered opinion that complainant has successfully able to prove that accused Balwant Rai and Rumarsan were found in possession of two leopard skin (uncured), one baby leopard skin (uncured) and one leopard cat skin (uncured). The leopard skin is specified in schedule I of the Act and thus the accused have contravened the provisions of Section 49 of the Act. However no evidence had been led on record to show that they were dealing in leopard skins. Accordingly, accused Balwant Rai and Rumarsan are held guilty and are convicted for the offence U/s 49 punishable U/s 51 of the Wild Life (Protection) Act, 1972. However no offence is made out U/s 49B(1) of the Act against the accused person.
Announced in the Open Court on 30th of May, 2017.
(AJAY GARG) ACMM (Spl. Acts):Central District:
THC: Delhi WLI Vs. Balwant Rai etc. CC No. 302673/16 19 of 19