Delhi District Court
S T A T E vs (1) Vipin Jain on 12 January, 2010
FIR No. 569/05
PS: Shahdarai
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSIONS JUDGE, NORTHEAST DISTRICT
KARKARDOOMA COURTS, DELHI.
FIR No. : 569/05
PS : Shahdara, Delhi
U/s : 306/109/34 IPC
Sessions Case No. : 34/08
Date of Institution : 26/09/2006
Date of committal : 28/02/2007
Date on which reserved for order : 08/01/2010
Date of Delivery of Judgment : 12/01/2010
S T A T E Versus (1) Vipin Jain
S/o Sh. Raj Pal Jain
R/o 1/11689, Panchsheel
Garden Naveen Shahdara,
Delhi.
(2) Raj Pal Jain
S/o Sh. Kapoor Chand Jain
R/o 1/11689, Panchsheel
Garden, Naveen Shahdara,
Delhi.
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FIR No. 569/05
PS: Shahdarai
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J U D G M E N T
1. Accused persons namely Vipin Jain and Raj Pal Jain were sent up for trial by police of PS:
Shahdara, Delhi for offence punishable U/s 306/109/34 IPC on the allegations that on 25.11.2005, at about 7.30 AM at House No. st 1/11700, 1 floor, Panchsheel Garden, Naveen Shahdara,Delhi, daughter of the complainant namely Smita Rohtagi @ Honey committed suicide.
It is alleged that accused Vipin Jain was having love affair with deceased Smita and accused Vipin had married with Smita on 20.04.2005 at a temple at Preet Vihar, Delhi. Thereafter, Smita came to know that accused Vipin was marrying with some other Page 2 of 36 FIR No. 569/05 PS: Shahdarai 3 girl and thereafter, she tried to speak to them but they did not respond properly. On 24.11.2005, she saw the lights affixed in the house of accused Vipin Jain and came to know that the engagement ceremony of Vipin Jain had been performed. She could not bear that shock and committed suicide. She left the suicide note blaming accused Vipin Jain and his father Raj Pal Jain for her death. After completion of the investigation, chargesheet was filed against the accused persons.
2. After supplying the copies to the accused persons, the case was committed to the court of sessions vide order dated 28.02.2007.
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3. My Ld. Predecessor vide order dated 03.04.2007, after finding primafacie offence, charged both the accused persons for the offence punishable U/s 306/34 IPC, to which they pleaded not guilty and claimed trial.
4. The Prosecution in support of their case examined as many as 16 witnesses.
5. The prosecution examined the material witnesses.
PW2 Smt. Rajni Bala, mother of the deceased, who proved the handwriting of her daughter on the suicide note Ex.PW2/B and diary written by her daughter Ex. PW2/C. PW3 Sh. Suresh Chand, father of the deceased, who proved his statement to the police Ex.PW3/A, the seizure memo of suicide Page 4 of 36 FIR No. 569/05 PS: Shahdarai 5 note Ex.PW3/B, seizure memo of diary of he daughter Ex.PW3/C, seizure memo of eyeliner Ex.PW3/D, seizure memo of bedsheet Ex.PW3/E, seizure memo of the pencil by which the suicide note was written vide memo Ex.PW3/F and his second statement given to the police Ex.PW3/G. PW9 Sh. Kunal, brother of the deceased, who stated that his sister was married with accused Vipin Jain at Preet Vihar Vaishno Devi Mandir.
6. In this case, the prosecution also examined formal witnesses. PW1 Om Prakash Tiwari who allegedly performed the marriage of deceased with accused Vipin but he completely turned hostile towards the prosecution. PW4 Dr. Arvind Kumar who conducted the postmortem on the dead body of Page 5 of 36 FIR No. 569/05 PS: Shahdarai 6 Smita Rohtagi and opined that the cause of death as asphyxia due to hanging and proved his report Ex.PW4/A. PW5 ASI Parvesh Kumar was the duty officer who recorded the DD No. 12A regarding the admission of a girl in Shanti Mukund Hospital by her brother and he proved the copy of the said DD as Ex.PW5/A and he also recorded the formal FIR on the statement of the father of the girl and proved the same as Ex.PW5/B. PW7 Dr. Vikram Singh who examined Smita Rohtagi and prepared the MLC Ex.PW7/A and declared patient Smita brought dead to the hospital. PW8 Sh. R.C Gupta who identified the dead body of Smita vide his identification statement Ex.PW8/A and received the dead body of Smita vide handing over memo Ex.PW8/B. PW10 Page 6 of 36 FIR No. 569/05 PS: Shahdarai 7 Ct. Sunil who took the photographs of the spot and proved the photographs as Ex. PW10/1 to PW10/7 and its negatives as Ex.PW10/8 to PW10/14. PW11 Ct. Kunwar Pal Singh who deposited the exhibits at FSL Rohini. PW12 S.I E.S Yadav, Incharge Mobile Crime Team who inspected the spot and proved his inspection report Ex.PW12/A. PW14 Ct. Bijender Singh who deposited the parcel containing viscera at FSL Rohini. PW16 H. C Arvind Prashar who proved the deposit of the case property in the malkhana as Head Constable S.Raju, the then MHCM has expired and proved the extracts of the relevant entries as Ex.PW16/A
7. The prosecution also examined the witnesses of investigation. PW6 Ct. Virender who joined the Page 7 of 36 FIR No. 569/05 PS: Shahdarai 8 investigation of this case with the IO and proved the rukka Ex.PW6/A in addition to other memos. PW15 S.I Dinesh Kumar is the Investigating Officer.
8. It is pertinent to mention here that case property i.e eyeliner, bed sheet, and one pencil were not traceable in the Malkhana and the same have been misplaced by MHCM H.C S.Raju and the FIR against him was registered and later on, the then MHCM expired.
9. Statement of accused persons were recorded U/s 313 Cr.PC wherein they denied the prosecution evidence and claimed innocence. They choose not to lead any evidence in their defence. Page 8 of 36 FIR No. 569/05
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10. I have heard Sh. Virender Singh, Ld. Addl. Public Prosecutor for the State and Sh. S.K Ahluwalia, Advocate on behalf of the accused persons. I have also gone through the record.
11. There are two important facts to be established by the prosecution. One is with respect to the alleged marriage of the deceased with accused Vipin Jain and second is whether the suicide note and the other evidence available on record proves that there was abetment to commit suicide on the part of the accused persons.
12. PW1 Sh. Om Prakash Tiwari was examined by the prosecution to prove the marriage between Smita @ Page 9 of 36 FIR No. 569/05 PS: Shahdarai 10 Honey with accused Vipin Jain but he completely turned hostile towards the prosecution.
13. Now the other evidence is suicide note Ex.PW2/B which was allegedly written by deceased Smita. The said suicide note is in Hindi and its translation in English reads as under: " I Smita Rohtagi compelled to commit suicide because I have been cheated in love and after marriage. My parents do not have any hand in the same. My mother, father and my brother love me too much. Hence, I request that after my death, my mother, father and brother should not face any trouble because they will be, otherwise, in the state of shock. Vipin Jain is responsible for my death. He married me on 20.04.2005 at Preet Vihar through Pandit Om Prakash Tiwari. Now, he has denied the same and he is going to marry for the second time on 27.11.2005. I had spoken to his father Raj Pal Page 10 of 36 FIR No. 569/05 PS: Shahdarai 11 Jain but he rebuked me and got copy of my hand writing and got written some fake letters and they are blackmailing me and for that reason, they are getting him married at the earliest. Vipin Jain and his parents must get the severe punishment, so that, they do not spoil the life of another girl. My mother, father and brother should not suffer any harm. Please, they love me too much and I need justice after my death. I need justice then only my sole will rest in peace.
Thumb impression Smita Rohtagi
Smita Rohtagi
Smita Rohtagi
Don't think that the letter is written by my parents. This letter is written by me Smita Rohtagi before my death, therefore, I am putting my thumb impression. Delhi Police, please get Vipin punished for his acts. Brother, take care of my parents and yourself. I had troubled them too much, you do not trouble them. Always love them. Please, this is my last wish. You Page 11 of 36 FIR No. 569/05 PS: Shahdarai 12 should talk with respect with my parents. Please take care of father, please of mother also and yourself also.
Good Bye Bhaiya, I do not want to give you sorrow but I am not able to live I am dying every moment. Take care.
Good Bye Forever .
Smita Rohtagi Smile always because life never stops. Honey Love U all Mummy, Pappa & Bhaiya & Miss U."
14. PW2 Smt. Rajni Bala, mother of the deceased, testified that on 20.04.2005, accused Vipin Jain @ Vicky had married with her daughter. She came to know that Smita was in love affair with Vipin Jain. She stated that twothree days prior to Diwali, again stated that, on the eve of Goverdhan i.e on the next day of Diwali, her daughter Smita came to know Page 12 of 36 FIR No. 569/05 PS: Shahdarai 13 through her friend that the marriage of Vipin Jain had got fixed and she got stunned. They, her daughter Smita disclosed to her that on 20.04.2005, she got married with Vipin Jain at Preet Vihar Mandir. She informed her husband and they, her husband had a talk with the father of Vipin Jain i.e Raj Pal Jain. Initially, during the talks, it was agreed that deceased Smita and Vipin Jain will sit together and will talk about the matter but later on, Rajpal Jain started dillydallying the matter. She stated that on 24.11.2005, her daughter Smita saw the lights affixed in the house of accused Vipin Jain. She came to know that engagement ceremony of Vipin had been performed. She could not bear that shock. On seeing the lights in the night of 24.11.2005, she Page 13 of 36 FIR No. 569/05 PS: Shahdarai 14 (Smita) took her meals and watched T.V. Then, she went to her room. Subsequently, in the morning, she was found hanging from hook of the roof by her father.
15. PW3 Sh. Suresh Chand, the father of the deceased, testified that about 1015 days prior to the incident, he came to know that his daughter Smita was in love with Vipin Jain. On 22 23.11.2005, he called Rajpal Jain on telephone in his house but he did not turn up. He telephoned him about the marriage of his daughter Smita with accused Vipin Jain by saying that let they had talk prior to marriage. But Rajpal Jain, did not bother to come and told him that he would see whatever would happen. On 24.11.2005, there was lighting in Page 14 of 36 FIR No. 569/05 PS: Shahdarai 15 the house of accused Vipin. On verifying, he came to know that engagement ceremony was fixed on that day and as such the lighting was there in the house of Vipin Jain. His daughter told him that marriage of Vipin Jain was going to be solemnized on 27.11.2005 and further told him that she had already married with Vipin Jain in a temple in Preet Vihar and why again, Vipin Jain was getting married. He further telephoned to the accused persons to come to his house to discuss the matter but they did not come despite repeated calls. On 25.11.2005, at about 7.30 AM, he came back with milk and found that his daughter Smita was hanging with hook of the roof.
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16. PW9 Kunal, brother of the deceased, corroborated PW2 Smt. Rajni Bala and PW3 Sh. Suresh Chand regarding the incident. He stated that his sister was married with accused Vipin Jain at Preet Vihar, Vaishno Devi Mandir. He stated that he does not remember the name of the priest who had performed the marriage.
17. In her crossexamination, PW2 has stated that she knew for about one and half years prior to the incident that Smita was in love with Vipin. She had disclosed regarding the said affair to her husband few days prior to the incident. She talked to the parents of accused Vipin Jain about this matter about six months prior to the incident. She stated that on the second day of Deepawali, friend of Page 16 of 36 FIR No. 569/05 PS: Shahdarai 17 Smita told them on telephone that Smita had married with Vipin Jain. Smita told that she married with accused Vipin on 20.04.2005 at a temple at Preet Vihar. Smtia was residing with them.
18. PW3 Sh. Suresh Chand, on the other hand, in his crossexamination stated that he came to know about the love affair of the deceased and accused Vipin Jain about 15 days prior to her death. He came to know that they have married. He did not go to the house of Vipin on coming to know of these facts. He stated that he spoke to the father of Vipin twothree days prior to the death of his daughter on the telephone. He stated that his daughter herself told him that she had married to Vipin in Vaishno temple at Laxmi Nagar. He stated that he enquired Page 17 of 36 FIR No. 569/05 PS: Shahdarai 18 from his daughter whether she is having photographs or certificate of marriage but she denied the same. He did not go to Vaishno Temple to make the inquiry. He was not aware about the affair of his daughter prior to fifteen days of her death.
19. There are inconsistencies in the testimonies of PW 2 Smt. Rajni Bala and PW3 Sh. Suresh Chand as to when they came to know about the marriage of their daughter.
20. PW9 Sh. Kunal in his crossexamination has stated that he came to know 1015 days prior to her death through his sister that she was married to accused. His sister had told him the name of temple and Page 18 of 36 FIR No. 569/05 PS: Shahdarai 19 priest where her marriage was performed. He did not ask her about the certificate or photographs of the marriage. He asked her as to who attended her marriage. She told him that twothree friends of accused Vipin Jain was present but she did not tell the name.
21. PW1 Sh. Om Prakash Tiwari, the priest who allegedly performed the marriage turned hostile towards the prosecution and there are inconsistencies between the testimonies of the material witnesses. There is no witness who had seen the marriage being performed between accused Vipin Jain and deceased Smita Rohtagi nor there is any document or photograph to that effect. Accordingly, because deceased has stated in Page 19 of 36 FIR No. 569/05 PS: Shahdarai 20 her suicide note that accused Vipin has married with her, it cannot be said that the marriage between them has been proved by the prosecution.
22. Now the question arises whether offence U/s 306 IPC is made out against the accused persons.
23. Ld. Counsel on behalf of accused persons submitted that an essential ingredient to constitute the offence punishable U/s 306 IPC are not fulfilled in the present case as there is no abetment on the part of the accused persons. He cited "Shakuntla Rani V/s State of Punjab", 1984 (1) RCR 451. He also cited "Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh", 2002 (2) RCR (Criminal) 687.
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24. On the other hand, Ld. Addl. P.P for the State who is assisted by Sh. D.S. Sidhu, Advocate on behalf of the complainant cited "Sohan Raj Sharma Vs. State of Haryana" AIR 2008 Supreme Court 2108, Randhir Singh & Anr. Vs. State of Punjab, AIR 2004 Supreme Court 5097, Didigam Bikshapathi & Anr Vs. State of A.P., 2008 Crl. L.J.724. Ld. Addl. P.P submitted that the circumstances created by the accused persons were sufficient to infer that there was abetment on their part, which led the deceased to commit suicide.
25. Before going into the merit, let's have the over view of the law. The Hon'ble Supreme Court in case titled as Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh has laid down the law that Page 21 of 36 FIR No. 569/05 PS: Shahdarai 22 abetment is defined Under Section 107 IPC which means that "a person abets the doing of a thing if he firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing." The Hon'ble Supreme Court while relying upon the earlier judgment in "Ramesh Kumar Vs. State of Chattisgarh, (2001) 9 SCC 618 observed as under: "A word utter in a fit of anger or emotion without intending the consequences to actually follow Page 22 of 36 FIR No. 569/05 PS: Shahdarai 23 cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences, were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty."
In the said case case, it was held that the appellant told the deceased to go and die and he died. It does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the Page 23 of 36 FIR No. 569/05 PS: Shahdarai 24 necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional.
26. In case titled as "Brij Lal & another Vs. State", 1986 (1) R.C.R (Criminal) 10, a woman aged about 64 years who was living with her son and daughter inlaw, died of selfimmolation. She gave the dying declaration stating that her daughterinlaw used to trouble her and two days before, she even had a quarrel with her and she had left the home. She again came back home and in the night, she told everyone in family that she should be given Rs. 200/ for her expenses as she needed the same. No body gave her the money and her son Brij Page 24 of 36 FIR No. 569/05 PS: Shahdarai 25 Lal asked her to leave his house. On account of being fed up, she set herself to fire in the night as her daughterinlaw was not giving her tea and milk. She was in great trouble and they used to say that she should die. In this case, our own High Court observed as under: "An abortive attempt to take life is, however, penal; a successful attempt at self destruction is not. But where an act of suicide is not a voluntary act but is committed under the compulsion of adverse circumstances, the law punishes those who could be held responsible for bringing it about, directly or indirectly, either by active suggestion or by creating objective conditions which drive the victim to it, but only if these are intended to achieve the desired object. A philosphic suggestion or an intemperate and indiscreet eruption in fit of anger could not constitute an act of abetment. An act of abetment Page 25 of 36 FIR No. 569/05 PS: Shahdarai 26 must be intended to operate on the mind of the victim so as to lead him to the disaster."
27. In case titled as "Heera Lal Jain Vs. State", 87 (2000) Delhi Law Times 265, one person died and suicide note was found whereby he had stated that accused was responsible for his situation who forced him to take wrong steps who got him implicated in false case and threatened to get his family killed. In this case, Hon'ble Delhi High Court has held that From a reading of the Clause 'firstly' of Section 107 of the Indian Penal Code, it is clear that a person who instigates another to do a thing, abets him to do that thing. A person is aid to instigate another when he goads, provokes, incites, urges forward or encourage another to commit a crime Page 26 of 36 FIR No. 569/05 PS: Shahdarai 27 and from the suicide note, it was found that facts contained in the suicide note does not show the same, therefore, accused was discharged.
28. In case titled as "Ashok Kumar & Anr. Vs. The State", 2009 (4) C.C Cases (HC) 1, the dead body was found hanging and suicide note was found wherein the deceased had named two persons that they used to harass him daily saying that they will oust him from the job. The Hon'ble High Court while going through the law on the subject observed that in case of abetment, there must be some overt act attributed to the accused to show that he had instigated, goaded, persuaded, incited or in any Page 27 of 36 FIR No. 569/05 PS: Shahdarai 28 manner driven the deceased to commit suicide and on the facts, accused persons were discharged.
29. In the cited judgment on behalf of the complainant titled as "Sohan Raj Sharma Vs. State of Haryana", the deceased has left the suicide note wherein she had poisoned herself and her children and stated that her husband is a sexual pervert and that he had behaved like an animal and the deceased had tolerated the insulting manner in which he behaved. They were married in the court. It was stated that the accused was impotent and he was trying to defame the deceased for having relationship with ladies. In the said case, it was held that offence U/s 306 IPC is not made out against the appellant.
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30. The case of Randhir Singh & Anr. Vs. State of Punjab, was the case of dowry death where the demand of dowry was established, therefore, the same is distinguishable from the facts of the present case.
31. In case of "Didigam Bikshapathi & Anr. Vs. State of A.P", the deceased had close friendship with the appellant. About four years back, he appointed the deceased and others as field officers in his finance firm namely Uma Hire Purchase and Finance. The deceased and other two field officers sold about 15 plots in that group to Kommaipalli villagers and handed over the money to appellant No. 1. As he did not pay the money to the Kanaka Mahalaxmi Real Estate Ventures, the other partners Page 29 of 36 FIR No. 569/05 PS: Shahdarai 30 did not register the plots in favour of the persons, who paid the money to the deceased. Since the deceased demanded for registration of the plots in favour of the prospective purchasers, appellant escaped with his family and was staying at his in laws house. The deceased went there and demanded registration of the plots but the appellants abused him in filthy language and the accused neither registered the plots nor returned the amount. Due to the mental harassment and unable to bear the pressure from the purchasers of the plots, the deceased committed suicide. In the said case, the proceedings for quashing of the proceeding U/s 306 IPC was filed before the Hon'ble High Court which refused. Thereafter, the Page 30 of 36 FIR No. 569/05 PS: Shahdarai 31 Hon'ble Supreme Court held that exercise of quashing should not be done in those cases where the entire facts are incomplete and hazy and evidence has not been collected and produced before the Court.
32. Now coming to the facts of the present case, the deceased had left the suicide note. She has admittedly not stayed in the family of the accused persons for even a single day. There is no evidence on record that any quarrel has taken place between the deceased and the accused persons. She despite her alleged marriage stayed at her parental house for a very long period. Nothing can be inferred from the facts of the case that these are the accused persons who had instigated the deceased Page 31 of 36 FIR No. 569/05 PS: Shahdarai 32 to commit suicide. There is no mens rea on their part. Further merely because accused Vipin Jain was getting married and affixed lights on his house cannot by itself prove that accused persons had instigated the deceased to commit suicide. To instigate means to incite or to do some act which normally one would not do. It is true that creation of the circumstances against the deceased may be held to be aiding her to commit suicide. However, in such event, the circumstances must be so grave which leaves no opportunity for the deceased to remain alive but to commit suicide.
33. In the facts of the present case, PW2 Ms. Rajni Bala, the mother of the deceased, claims that her daughter Smita about her marriage with accused Page 32 of 36 FIR No. 569/05 PS: Shahdarai 33 Vipin on the next day of Diwali and she informed the same to her husband and her husband had talked with the father of the accused Vipin Jain. Initially, accused Raj Pal Jain agreed, thereafter, he started dillydallying the matter. On 24.11.2005, Smita committed suicide. However, in her cross examination, PW2 Ms. Rajni Bala has stated that she knew for about one and half years prior to the incident that Smita was in love with Vipin. She had disclosed regarding the said affair to her husband few days prior to the incident. She stated that neither she nor her husband had gone to the house of the accused persons to discuss the matter but there were talks on the telephone with them. Page 33 of 36 FIR No. 569/05
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34. On the other hand, PW3 Sh. Suresh Chand has stated that on 2223.11.2005, he called Rajpal Jain on telephone in his house but he did not turn up. In his crossexamination, PW3 has stated that he came to know about the love affair of deceased and accused Vipin Jain about 15 days prior to her death. He came to know that they have married but he did not go to the house of the boy Vipin on coming to know these facts. He stated that he had spoken to his daughter about the marriage with the accused about 15 days prior to her death. He did not speak to his relatives regarding the same.
35. Nowhere from the evidence of PW2 Smt. Rajani Bala and PW3 Sh. Suresh Chand, it is coming that there was any quarrel or any heated exchanges Page 34 of 36 FIR No. 569/05 PS: Shahdarai 35 between them and the accused persons. It is one of the unfortunate case, where the innocent life was lost but the facts remains that there is no legally recognizable instigation proved on record against the accused persons, which proves that accused persons had instigated the deceased Smita to commit suicide. The essential ingredient to constitute the offence U/s 306 IPC is, therefore, lack in the present case.
36. It is pertinent to mention that there is no investigation as to how accused person black mailed deceased and whether, they had the writings of deceased with them for that purpose. In cases like this, the investigation should be carried out from all angles to rule out the mischief. Page 35 of 36 FIR No. 569/05
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37. Accordingly, I am of the opinion that prosecution has miserably failed to prove offence U/s 306 IPC against both the accused persons. Accused Vipin Jain and Raj Pal Jain are entitled to acquittal. Accused Vipin Jain and Raj Pal Jain are accordingly acquitted from the charges against them. Their bail bonds stands cancelled. Sureties discharged. File be consigned to record room.
Announced in the open court Today i.e. on 12.01.2010 GURDEEP SINGH ASJ04/NE/KKD/12.01.2010 Page 36 of 36