Himachal Pradesh High Court
State Of H.P vs Amrik Singh on 23 September, 2015
Author: Sanjay Karol
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 4191 of 2013
Judgment reserved on: 08.09.2015
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Date of Decision: September 23 , 2015
State of H.P. ...Appellant.
Versus
Amrik singh ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice P.S. Rana, Judge.
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Whether approved for reporting?1Yes.
For the Appellant: Mr. Ashok Chaudhary, Additional
Advocate General and Mr.J.S.
Guleria, Assistant Advocate
General.
For the Respondent: Mr. Suneet Goel, Advocate.
Sanjay Karol, J.
Assailing the judgment dated 04.06.2013, passed by the Additional Sessions Judge, Sirmaur, District at Nahan, H.P., in Sessions Trial No.12-N/7 of 2011, titled as State of Himachal Pradesh Versus Amrik Singh, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 22. It is the case of prosecution that on 15.02.2010, Smt. Surto Devi (PW.2) lodged a report at Police Station, Paonta Sahib to the effect that her .
daughter i.e. the prosecutrix (PW.1) aged about 18 years had left home on the pretext of undergoing training of tailoring course. Same day, Niranjan Singh also reported that his daughter Kuldeep Kaur (PW.3) had also left home of for Paonta Sahib. ASI Jeet Singh (PW.13) searched the missing girls and found them to be staying in the premises owned by Surtu Devi (PW.2) at Kala Amb.
rt Initially girls did not disclose anything to the police or their parents, but however on 05.04.2010 prosecutrix lodged FIR No.112/2010 dated 05.04.2010 (PW.1/A) under the provisions of Sections 363 and 376 of the Indian Penal Code, against the accused at Paonta Sahib, District Sirmaur, H.P., stating that the accused enticed her on the pretext of marriage, which he did not solemnize but subjected her to rape. Investigation further revealed that prosecutrix had stayed with the accused at different places, including Chandigarh and Kala Amb. Prosecutrix was got medically examined from Dr.Daljeet Kaur (PW.11), who issued MLC (Ex.PW.11/B).
::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 3Certificate regarding age of the prosecutrix (Ex.PW.8/A) was taken on record. Accused threatened the prosecutrix not to disclose the incident to anyone, else she be killed.
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With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.
3. Accused was charged for having committed of offences punishable under the provisions of Sections 363, 376 (1) and 506(II) of the Indian Penal Code, to which he did not plead guilty and claimed trial.
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4. In order to establish its case, in all, prosecution examined as many as sixteen witnesses.
Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took the plea of false implication.
5. Trial Court, after appreciating the testimony of the prosecution witnesses acquitted the accused.
Hence the present appeal.
6. We have heard Mr. Ashok Chaudhry, learned Additional Advocate General, assisted by Mr. J.S. Guleria, learned Assistant Advocate General on behalf of the State as also Mr. Suneet Goel, Advocate, on behalf of the ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 4 accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having .
done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and of ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
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7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients so as to constitute the charged offence.
8. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 5 has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v.
.
Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be of reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in rt exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "
9. It is settled principle of law that testimony of prosecutrix is sufficient enough to convict the accused if it inspires confidence. (See: Rajesh Patel Versus State of ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 6 Jharkhand, (2013) 3 SCC 791 and State of Rajasthan Versus Babu Meena, (2013) 4 SCC 206).
10. The Court is duty bound to appreciate the .
evidence in totality of the background of the entire case. It is also settled proposition of law that in case evidence read in its totality and the story projected by the prosecutrix is found to be improbable, her version is liable to be rejected. The apex Court in Narender Kumar Versus State (NCT of Delhi), (2012) 7 of SCC 171, has held as under:-
"20. It is a settled legal proposition that once the rt statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances.
Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr., (2003) 3 SCC 175; and Vishnu v. State of Maharashtra, (2006) 1 SCC 283.
22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 7 improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220.
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23. In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14 SCC 534, this Court while dealing with the issue held:
"4....the only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
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24. In Rajoo & Ors. v. State of Madhya Pradesh, (2008) 15 SCC 133, this Court held: (SCC p. 141, para 10) rt "10....that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary."
The court however, further observed:
"11.......It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication..... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
25. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, this Court held has under:
"9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 8
26. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to .
sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide: State of Maharashtra & Anr. v. Madhukar Narayan Mardikar, (1991) 1 SCC 57; State of Punjab v. Gurmit Singh & Ors., (1996) 2 SCC 384; and State of U.P. v. Pappu @ Yunus & Anr., (2005) 3 SCC 594.
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27. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a rt relevant factor to be taken into consideration at all.
28. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 9 Maharashtra, (2979) 2 SCC 143; and Uday v. State of Karnataka, (2003) 4 SCC 46.
30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be .
proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
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31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot rt be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of."
11. Prosecutrix states that she was born on 15.04.1995. She further states that she had left her school in the year 2010 and studied only upto 8th Class.
She failed in her class. She admits that she was born in the State of Haryana and is not sure as to whether her date of birth was recorded anywhere in the Panchayat or with any Authority in that State. She categorically does not deny having been born on 11.01.1991. She does not know the basis on which Sub Divisional Magistrate, Paonta Sahib, recorded her date of birth. She admits to ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 10 have been employed gainfully, having disclosed her age to be more than 18 years.
12. Surto Devi (PW.2) states that prosecutrix was .
17 years of age. She also does not deny her daughter to have been born on 01.11.1991. She admits that only on the basis of her affidavit, the date of birth of the prosecutrix was recorded in the Shivpur Panchayat, under of order of SDM, Paonta Sahib.
13. As per Pariwar Register (Ex.PW.7/A), prosecutrix was born on 15.04.1995. This evidence in our rt considered view is legally inadmissible, for Baal Mukand Aggarwal (PW.7), who proved the same has categorically deposed that the entry was recorded only with the passing of order by the SDM, Paonta Sahib, which we find, undisputedly, not to have been produced on record.
Also witness admits cuttings at various pages in the Pariwar Register rendering serious doubt about its authenticity. The register produced in Court is a new register and not the old one where initial entries were recorded. Where is this register? Why it was not produced? are Unanswered queries. Witness admits that at the place where date of birth of the prosecutrix is ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 11 recorded, there is cutting and as per the certificate, mother of the prosecutrix is Harijan by caste, whereas, in Court prosecutrix states that she is Rajput.
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14. Mam Raj Tomar (PW.8) has proved on record school certificate (Ex.PW.8/A) recording age of the prosecutrix to be 15.04.1995, but then even this certificate cannot be said to have been proven, in of accordance with law, for the reason that the Principal, who entered and verified such entries, was not examined, also entries recorded are based on the school leaving rt certificate of primary school, which was neither produced nor proved on record.
15. Even Surto Devi (PW.2) states that no record with regard to registration of birth of the prosecutrix was maintained at a place where she was born. According to her, the date of birth was recorded on the order passed by the SDM, Paonta Sahib, but no such order has been placed on record. Even the Investigating Officer Geeta Ram (PW.15) admits that medical record estimated the age of the prosecutrix to be between 15 to 19 years.
Thus, there is no conclusive proof with regard to the exact age of the prosecutrix. Prosecution cannot be said ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 12 to have established, beyond reasonable doubt, the fact that as on the date of commission of the alleged crime, prosecutrix was below 18 years of age. We find the .
evidence to be otherwise.
16. In Court, prosecutrix (PW.1) states that in the year 2010, she was studying in Class 8th at Government Senior Secondary School, Paonta Sahib. She admits that of she developed intimacy with the accused and became friends. On 13.02.2010, accused telephonically contacted her and asked her to come to Chandigarh, rt where their marriage would be solemnized. With her friend Kuldeep Kaur (PW.3) she travelled to Chandigarh in a bus, where accused gave `1000/- to Kuldeep Kaur and then made them stay in a Gurudwara for two days. After three days, accused took them to Moginand, where they started residing in a rented accommodation. There accused got them employed. Only after 2-3 days when accused returned to Moginand she was subjected to sexual intercourse on the promise of marriage. After some time, she shifted to Kala Amb and started residing with Kuldeep Kaur. After 2-3 days, accused came to Kala Amb and stayed with her. Though Kuldeep Kaur got ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 13 married to Sachin, but accused did not solemnize his marriage. However, he continued to sexually assault her.
Later on, on telephone accused informed her that he .
would not be marrying her. On 14.04.2010, she was recovered by the police. Under threat extended by the accused, she did not disclose the incident to anyone.
Later on with her mother went to Police Station, Paonta of Sahib and lodged the FIR.
17. We do not find this version of the prosecutrix to be truthful or inspiring in confidence. Prosecutrix rt admits that she developed intimacy with the accused. It is not that accused took her away, forcibly or otherwise, from her village. She voluntarily travelled with her friend to Chandigarh, where accused made them stay in a Gurudwara and also got them employed. Admittedly till that time, accused had not subjected her to sexual intercourse. Prosecutrix admits that she had informed the Deputy Superintendant of Police, Paonta Sahib, of having gone to Chandigarh and stayed at Kala Amb "out of our own sweet will" and that "no bad act was done with me by the accused". She tries to clarify that this was so done under pressure of the accused, but then she ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 14 forgets that having returned home, after a period of two months, she was in no contact with him. Noticeably she admits that her love affair with the accused lasted for .
four years and significantly, he never had any sexual intercourse with her during this period. She admits that wherever she resided there were neighbours. Even after learning that the accused would not be solemnizing of marriage, she never protested or informed anyone about the same. She continued to work at Kala Amb till the time she was recovered, when also she did not disclose rt the incident to anyone. At that time accused had no influence over her. It appears that only when police exerted some pressure that a case was registered. It is not her case that he was either staying with her or was in constant touch.
18. We notice her friend Kuldeep Kaur (PW.3) to have admitted that accused never committed any sexual intercourse with the prosecutrix. All that she states is that accused used to talk to her on phone. She admits having left the village with the prosecutrix; taken employment; hired independent accommodation both at Moginand and Kala Amb; and worked in a Factory. She ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 15 admits that both were adult and aware of consequences of their actions. In fact, uncontrovertedly she states that prosecutrix knew that accused already stood engaged .
with another woman. This witness was not declared hostile or cross-examined by the prosecution. Otherwise shaky and untrustworthy version of the prosecutrix, which we find to be an afterthought, perhaps prompted of by her mother, stands contradicted by this witness.
19. Surto Devi (PW.2), mother of the prosecutrix states that on 15.02.2010, she lodged a report with the rt police. On 14.04.2010, police informed her of the whereabouts of her daughter. She went to the Police Station and found her daughter and Kuldeep Kaur to be there. On inquiry, her daughter started weeping and did not tell anything. Only next day i.e. 15.04.2010 FIR was lodged. Witness admits that her daughter and Kuldeep Kaur had told the police that they left their houses of their own will and started working in a Factory at Kala Amb. Significantly she records presence of Dy.S.P., Paonta Sahib. Crucially no pressure could have been exerted by the accused at that point in time. Prosecutrix was free to disclose whatever she had desired, but did ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 16 not do so. Why so stands unexplained. It appears that only when she went home, as an afterthought, on the asking of her mother, following day, she lodged the .
complaint. It is in this backdrop, we find the prosecution not to have established its case.
20. Significantly SI Geeta Ram (PW.15) and other police officials Jeet Singh (PW.13) and Daleep Singh of (PW.14) admit that prosecutrix and her friend were voluntarily working in a Factory at Kala Amb. They did not find either of them to be under any pressure, threat rt or intimidation.
21. We find version of the prosecutrix of having sex with the accused on the promise of marriage not to be inspiring in confidence at all. At no point in time she disclosed such fact either to her friend or her parents.
She admits that before police reached her, accused had already disclosed his intent of not marrying her. Yet she did not take any action.
22. Hon'ble the Supreme Court of India in Vinod Kumar Versus State of Kerala, (2014) 5 SCC 678, has held as under:-
"Finally, the law has been succinctly clarified in Kaini Rajan Versus State of Kerala, (2013) 9 SCC ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 17
113. The Court is duty-bound when assessing the presence or absence of consent, to satisfy itself that both the parties are ad idem on essential features; in the case in hand that the prosecutrix .
was led to believe that her marriage to the appellant had been duly and legally performed. It is not sufficient that she convinced herself of the existence of this factual matrix, without the appellant inducing or persuading her to arrive at that conclusion. It is not possible to convict a of person who did not hold out any promise or make any misstatement of the facts or law or who presented a false scenario which had the consequence of inducing the other party into the rt commission of an act. There may be cases where one party may, owing to his or her own hallucinations, believe in the existence of a scenario which is a mirage and in the creation of which the other party has made no contribution. If the other party is forthright or honest in endeavouring to present the correct picture, such party cannot obviously be found culpable. The following paragraph from Deelip Singh Versus State of Bihar, (2005) 1 SCC 88, is extracted (SCC p. 99, para 19) "19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 18 knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of .
injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology". "
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23. In the given facts and circumstances, the aforesaid ratio is squarely applicable. Prosecutrix was rt more than 18 years of age. She was mature enough to understand implication of her actions, as also actions of the accused. Undoubtedly she was in love with him.
Voluntarily she left her parents' house with her friend and got gainfully employed. For more than two months she stayed at different places and freely moved and travelled from place to place at public places and through public transport. She rented accommodation and started residing. Even according to her, she had sex with the accused much after she had left her house and was employed in a Factory. Quite apparently accused had no intent of deceiving her or else from the very first day, he would have subjected her to sexual intercourse. Also ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 19 prosecutrix immediately did not disclose anything either to the police or her mother. Witness cannot be said to be reliable and her version to be inspiring in confidence.
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24. Thus, to our mind, prosecution has not been able to establish by leading clear, cogent, convincing and reliable piece of evidence so as to prove that accused kidnapped the prosecutrix from the lawful guardianship of of her mother, raped her and criminally intimidated the prosecutrix to do away with her life.
25. The Court below, in our considered view, has rt correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.
26. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of ::: Downloaded on - 15/04/2017 19:00:00 :::HCHP 20 the accused has resulted into travesty of justice, no interference is warranted in the instant case.
For all the aforesaid reasons, present appeal, .
being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.
of (Sanjay Karol), Judge.
rt (P.S. Rana),
September 23 , 2015. Judge.
(Purohit)
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