Delhi District Court
State vs Kishan Kumar & Anr. -:: Page 1 Of 33 ::- on 29 August, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
State
Versus
1. Mr.Kishan Kumar,
Son of Mr. Kedar Prasad Verma,
Resident of H. No.80, Saini Vihar Phase-3,
Mohan Garden, Uttam Nagar, Delhi.
2. Mr. Pankaj Kumar,
Son of Mr. Kedar Prasad Verma,
Resident of H. No.80, Sainik Vihar,
Mohan Garden, Uttam Nagar, Delhi.
First Information Report Number : 22/11
Police Station Uttam Nagar,
Under sections 376 , 341, 323,506, 34 of the Indian Penal Code.
Date of filing of the charge sheet before : 07.03.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 28.03.2011.
in the Sessions Court
Date of transfer of the file to this Court : 21.02.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 29.08.2013.
Date of judgment : 29.08.2013.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
Both the accused on bail with counsel, Mr.Satish Kumar.
Ms.Shubra Mehndiratta, counsel for the Delhi Commission for
Women.
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar,
Under section 376,341,323,506, 34 of the Indian Penal Code.
State versus Kishan Kumar & anr. -:: Page 1 of 33 ::-
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self- sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. This case falls in the list of twenty oldest cases pending before this Court and is listed at serial number 10 in the list of twenty oldest cases. This Court has made a sincere endeavour to dispose this case as expeditiously as practically possible.
2. Rape is a dark reality in Indian society like in any other nation. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is known to the culprit, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male adult.
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 2 of 33 ::-
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PROSECUTION CASE
3. Mr. Kishan Kumar and Mr. Pankaj Kumar, both the accused, have been charge sheeted by Police Station Uttam Nagar, Delhi for the offence under sections 376/506/323/341/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that before 15.01.2011 at House No. 6, South Extension, Gandhi Chowk, Mohan Garden, Uttam Nagar, Delhi, accused Mr.Kishan Kumar had committed rape on the prosecutrix (name withheld to protect her identity) several times in absence of her husband and at the aforesaid date, time and place while committing rape of prosecutrix, accused Mr.Kishan Kumar criminally intimidated by threatening to kill her and not to disclose the said act to anyone and that on 15.01.2011 at about 9.40 pm at Nala Vipin Garden, Uttam Nagar in furtherance of their common intention, both accused persons namely Mr.Kishan Kumar and Mr. Pankaj Kumar voluntarily caused hurt on prosecutrix and wrongfully restrained her.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 07.03.2011 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 28.03.2011 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 21.02.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 3 of 33 ::-
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CHARGE
5. After hearing arguments, charge for offence under sections 376 and 506 of the IPC was framed against the accused Mr.Kishan Kumar and charge for offence under sections 323, 341 and 34 of the IPC was framed against both the accused Mr. Kishan Kumar and Mr. Pankaj Kumar by the learned predecessor of this Court vide order dated 27.09.2011 to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined as many as 15 witnesses.
7. PW1 is the prosecutrix who has deposed about the incident.
8. PW2 is Mr. Uday Shankar, neighbor of the prosecutrix.
9. PW3 is SI Parsu Ram, the Duty Officer who had recorded the formal FIR of the case.
10. PW4 is W/HC Sudesh, who recorded DD No.22A regarding a quarrel.
11. PW5 is Mr. Sunil Kumar, husband of the prosecutrix.
12. PW6 is Dr. Shweta, under whose supervision Dr. Tania (who has Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 4 of 33 ::-
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resigned) had medically examined the prosecutrix.
13. PW7 is Dr. Avnish, who had medically examined the accused Mr.Kishan Kumar.
14. PW8 is HC Narender Kumar, witness of investigation and arrest of accused Mr.Pankaj Kumar.
15. PW9 is Mr. Vishal Gaurav, Nodal Officer, who has proved the CDR and other related documents of the mobile phone used by the prosecutrix and in the name of her husband.
16. PW10 is Ct.Nand Kishore, witness of investigation and arrest of accused Mr.Kishan Kumar.
17. PW11 is ASI Zile Singh, the first Investigation Officer.
18. PW12 is WCt. Suchitra Kumari, who had taken the prosecutrix to DDU Hospital for medical examination.
19. PW13 is Mr. Israr Babu, Nodal Officer, who has proved the CDR and other related documents of the mobile phone used by the accused Mr.Kishan Kumar and in the name of his mother.
20. PW14 is HC Ram Karan, who had taken accused Mr.Kishan Kumar to DDU Hospital for medical examination.
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 5 of 33 ::-
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21. PW15 is ASI Sushma, the Investigation Officer.
22. The accused has preferred not to cross examine PWs 6, 7, 10, 11, 12 and13 due to which their testimonies remain uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused persons.
STATEMENTS OF THE ACCUSED PERSONS UNDER SECTION 313 OF THE CR.P.C.
23. In their respective statements under section 313 of the Cr.P.C., both the accused have controverted and rebutted the entire evidence against them submitting that they are innocent and have been falsely implicated in this case. The case was registered falsely due to property dispute. Accused Mr.Pankaj Kumar is a government employee in Bank of India and real brother of accused Mr.Kishan Kumar. They have preferred to lead evidence in their defence.
DEFENCE EVIDENCE
24. Both the accused persons have examined HC Vidhya Nand as DW1 and he has proved DD entries regarding two complaints made by accused Mr.Kishan Kumar and two complaints made by the prosecutrix. They have also examined SI Binod Kumar who had produced the case file of FIR No28/11 PS Ranhola lodged by the accused Mr.Kishan Kumar against the prosecutrix and others which is still under investigation. Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 6 of 33 ::-
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ARGUMENTS
25. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
26. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 376, 506, 323, 341 and 34 of the IPC submitting that the prosecution has been able to bring home the charge against both the accused persons by examining its witnesses whose testimonies are corroborative and reliable.
27. The counsel for the accused, on the other hand, has requested for their acquittal submitting that there is nothing incriminating against both the accused persons on the record. He has also filed some documents including during the arguments but the same cannot be taken into consideration as they have not been proved by examining the relevant witnesses.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
28. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 7 of 33 ::-
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the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
29. Under this sphere, I now proceed to test the submissions of both the sides.
CASE OF THE PROSECUTION, ALLEGATIONS AND THE PROVED DOCUMENTS
30. The prosecution story unveils with the prosecutrix making a Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 8 of 33 ::-
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call at 100 number which was recorded by WHC Sudesh (PW-4) vide DD no. 22A dated 15.01.2011 (Ex. PW4/A) and marked to ASI Zile Singh (PW-11) and the police took her to PS Uttam Nagar where her statement (Ex.PW1/A) was recorded on which rukka (Ex.PW15/A) was written by WASI Sushma (PW-15) and FIR (Ex. PW3/A) was lodged by duty Officer SI Parshu Ram (PW-3) and endorsement (Ex. PW3/B) was made and the Kayami entry vide DD no. 41A dated 15.01.2011 (Ex.PW3/C) was made. The investigation of the case was assigned to WASI Sushma. The prosecutrix was taken to the DDU hospital by W/Ct. Suchitra (PW-12) where she was medically examined by Dr. Tania Anand (who had resigned from the service of the hospital) vide MLC (Ex.PW6/A) which has been proved by Dr. Shweta (PW-6) under whose supervision the MLC had been prepared. The samples were not preserved because the patient had last intercourse one month back. WASI Sushma (PW-15) ASI Zile Singh (PW-11), Ct. Nand Kishore (PW-10), sister of the prosecutrix and prosecutrix(PW-1) went to the spot where the site plan (Ex.PW1/D) was prepared. WASI Sushma (PW-15) ASI Zile Singh (PW-11), Ct. Nand Kishore (PW-10), sister of the prosecutrix and prosecutrix(PW-1) went to the house of accused Mr.Kishan Kumar from where on the pointing out of the prosecutrix, he was arrested vide arrest memo (Ex.PW1/B) and his personal search was taken (Ex.PW1/C). Accused Mr.Kishan Kumar was taken to DDU hospital by Ct. Ram Karan (PW-14) where he was medically examined by Dr. Avnish (PW-7) vide MLC (Ex. PW7/A). WASI Sushma accompanied by one beat constable went to the house of prosecutrix where at her instance the site plan of her house (Ex.PW15/B) was prepared. Accused Mr.Pankaj Kumar was arrested on 03.02.2011 from house no. 80, Mohan Garden, III, Sanik Enclave vide arrest Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 9 of 33 ::-
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memo (Ex.PW8/A) and his personal search was taken vide personal search memo (Ex.PW8/B). Mr. Vishal Gaurav, Nodal officer, Bharti Airtel Ltd. (PW-9) proved the call detail record of mobile phone number 9971057524 from 10.01.2011 to 15.01.2011 (Ex.PW9/A), cell ID chart (Ex.PW9/B) certificate under section 65 B Evidence Act (Ex.PW9/C), customer application form with ID proof (Ex.PW9/D). Mr.Israr Babu, Alternate Nodal officer, Vodaphone Mobile Services Ltd. (PW-13) proved the call detail record of mobile phone number 9811470903 from 01.01.2011 to 19.01.2011 (Ex.PW13/A),certificate under section 65 B Evidence Act (Ex.PW13/B), customer application form (Ex.PW13/C) and ration card as proof of residence (Ex.PW13/D).
31. As per the allegations of the prosecution, accused Mr.Kishan Kumar had committed rape on the prosecutrix before 15.01.2011 at House No.6, South Extension, Gandhi Chowk, Mohan Garden, Uttam Nagarm,Delhi and several times in absence of her husband and at the aforesaid date, time and place while committing rape of prosecutrix, accused Mr.Kishan Kumar criminally intimidated by threatening to kill her and not to disclose the said act to anyone.
32. On 15.01.2011 at about 9.40 pm at Nala Vipin Garden, Uttam Nagar in furtherance of their common intention both accused persons Mr.Kishan Kumar and Mr. Pankaj Kumar voluntarily caused hurt on proseuctrix and on the aforesaid date, time and place in furtherance of their common intention wrongfully restrained prosecutrix. Accused Mr.Kishan Kumar used to visit the house of the prosecutrix in the absence of her husband Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 10 of 33 ::-
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and committed rape upon her in the year 2001 and continued to commit rape upon her on different occasions till 2011. Accused Mr.Kishan Kumar made a telephonic call to the prosecutrix on 15.01.2011 at her mobile phone (number withheld to protect the identity of the prosecutrix) at about 9.27 a.m from his mobile no. 9716305042 and asked her to meet at Vipin Garden Nala. When the prosecutrix reached there at 9.30 a.m, he along with co-accused Mr.Pankaj Kumar gave her a beating and accused Mr.Krishan Kumar tried to commit rape upon her. Accused Mr.Kishan Kumar also gave a brick blow on her head due to which she became unconscious.
IDENTITY OF BOTH THE ACCUSED PERSONS
33. There is no dispute regarding the identity of accused Mr.Kishan Kumar and Mr.Pankaj Kumar who has been identified by the prosecutrix. It is also not in dispute that they were known to each other prior to the lodging of the FIR. They are also named in the FIR.
34. Therefore, the identity of accused Mr.Kishan Kumar and Mr.Pankaj Kumar stands established.
AGE OF THE PROSECUTRIX
35. There is no dispute that the prosecutrix was above 18 years of age at the time of the incident. In her complaint (Ex.PW1/A), the prosecutrix has stated her age as 31 years. In her evidence before the Court, the prosecutrix has stated her age as 31 years.
36. Therefore, it is clear that the prosecutrix was above 18 years of age Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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(major) at the time of the alleged incident.
VIRILITY OF THE ACCUSED
37. Accused Mr.Kishan Kumar has been medically examined by Dr.Avnish (PW7) vide MLC (Ex.PW7/A) wherein it is opined that "There is nothing to suggest that the examinee is incapable of performing sexual intercourse)"
38. This report indicates that accused Mr.Kishan Kumar is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX AND FSL REPORTS
39. The MLC of the prosecutrix (Ex.PW6/A) which is dated 15.01.2011 shows that on local examination in the Casualty, it was found that the prosecutrix has abrasions over B/L wrist, ant ab wall and swelling Rt side of forehead.
40. In the history given by the prosecutrix in the Gynecology Department, it is mentioned that "attempted sexual assault f/b physical assault but the accused was not able to have intercourse with the victim. Pt. gives h/o having intercourse with the same person (after threatening to kill the victim) since last 10 yrs. Pt. had last intercourse with the same person 1 mth back. This time, he attempted intercourse but was failed & so he physically assaulted the victim." There is also mentioned that "Samples not preserved because pt had last intercourse 1 mth back". There is no mention of Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 12 of 33 ::-
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any injury on her private parts.
41. These facts indicate that her version regarding her being raped are false as had she been actually raped, she would have received some injuries, maybe minor. The samples pertaining to the prosecutrix were not even taken at the time of her medical examination as the alleged incident of rape allegedlt happened much earlier and therefore nothing could be sent for examination to the FSL.
42. It may be observed here that at the time of her medical examination, the prosecutrix has failed to furnish the names of the culprit (s) to the doctor although she has mentioned their names in her complaint (Ex.PW1/A) and no explanation is coming forth regarding this major lapse.
43. The local injuries received by her i.e. abrasions and swelling shall be discussed while discussing the incident of 15.01.2011.
44. Therefore, it is clear that there is no medical nor forensic evidence against the accused Mr.Kishan Kumarto indicate that he has raped the prosecutrix.
45. However, medical and forensic evidence are only for the purpose of corroboration and solely on the ground of lack of such evidence, the accused cannot be acquitted. It is evidence of the prosecutrix which is of utmost importance and the judgment is mainly based on her evidence.
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
FIR No. 22/2011, Police Station Uttam Nagar, Under section 376,341,323,506, 34 of the Indian Penal Code. State versus Kishan Kumar & anr. -:: Page 13 of 33 ::-
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TESTIMONIES OF THE PROSECUTION WITNESSES
46. PW1, the prosecutrix, who has deposed in her examination-in- chief that her husband Mr. Sunil Kumar is working in export factory at Kirti Nagar. The accused Mr.Kishan Kumar is friend of her husband and working in the export factory. The other accused Mr.Pankaj is the brother of accused Mr.Kishan Kumar. Mr.Kishan Kumar used to visit her house along with her husband for the last 10-12 years and later on he used to visit her house in absence of her husband. Accused Mr.Kishan Kumar had committed rape upon her in the year 2001 but she did not remember the month and date. It was about 11.00 am when accused Mr.Kishan Kumar came to her house while she was alone. She has two children namely Kundan aged about one year and Chandani aged about 2 and half years at that time, who were also present at that time in the house. There were three rooms in the house and he came and sat in her room as they were having only one room on rent and at that time children were also present in her room. He forcibly committed rape upon her. She was wearing a sari at that time of alleged act by the accused. He threatened to kill her in case she disclosed his act to anyone and she did not disclose about the incident to any one. He continued to commit rape with her on different occasions till 2011, till she lodged the complaint on 15.01.2011.
47. On 15.01.2011, accused Mr.Kishan Kumar made a telephone call to her on her mobile phone number (number withheld) at about 9.27 am from his mobile bearing no.9716305042 and asked her to meet him at Vipin Garden Naala. She reached there at about 9.40am where both the accused persons Mr.Kishan Kumar and Mr.Pankaj were found there. Immediately both of them started beating her. Accused Mr.Pankaj caught hold of her from behind Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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and gave her fists and kicks blows. Accused Mr.Kishan tore off her suit and tried to commit rape with her even at that time also. She tried to save herself and in the meantime, accused Mr.Kishan gave a brick blow on her head. As a result, she became unconscious at the spot. She regained consciousness after about one hour and made a telephonic cal at number 100 to the police. Police took her to the Police Station at Uttam Nagar where she narrated the whole incident to the police personnel. Her statement (Ex.PW1/A) was recorded by the police. From Police Station, she was taken to DDU hospital, where she was medically examined by the doctors. Her clothes were not seized in the hospital. Accused Mr.Kishan Kumar was arrested by the police in her presence vide arrest memo (Ex.PW1/B) and his personal search memo (Ex.PW1/C) was also prepared. Her mobile was in the name of her husband Mr.Sunil Kumar. She had shown the place of occurrence to the police and police prepared the site plan (Ex.PW1/D). She had also lodged a report (Mark C) against the accused Mr.Pankaj Kumar and IO of the case. She had also lodged a complaint before the DCP regarding the present case. She has been cross examined at length.
SECTION 376 OF THE IPC (INCIDENT FROM 2001 TILL BEFORE 15.01.2011) AGAINT ACCUSED MR.KISHAN KUMAR
48. As regards the allegations of the prosecution that from the year 2001 till prior to 15.01.2011, accused Mr.Kishan Kumar had continuously raped the prosecutrix several times in her residence in the absence of her husband and threatened to kill her, it may be mentioned that the prosecution has miserably failed to bring home this part of the charge against the accused Mr.Kishan Kumar for plurality of reasons.
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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Delay in lodging of FIR
49. It is claimed by the accused that the FIR has been lodged on 15.01.2011 at 18.35 hours while the allegations made by the prosecutrix are that she was raped from the year 2001 till prior to 15.01.2011, the same shows that the delay is fatal. The delay in lodging of the FIR has been not explained by the prosecution.
50. The Additional Public Prosecutor, on the other hand, has submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the prosecutrix was under the fear of the accused and could not lodge the FIR immediately.
51. The complaint, Ex.PW1/A is made on 15.01.2011 at 6.35 pm.
52. The prosecutrix in her MLC (Ex.PW6/A) dated 15.01.2011 in the history has mentioned that she was sexually assaulted for 10 years.
53. The prosecutrix in her evidence before the Court has deposed that the accused Mr.Kishan Kumarhad raped her since the year 2001 till prior to 15.01.2011.
54. It may be mentioned here that no logical explanation has been furnished by the prosecution regarding what was the reason of the prosecutrix to wait till 15.01.2011 to make her complaint to the police. The claim that she was threatened by the accused cannot be said to a reason to wait for ten years Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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as she was not under the control of the accused. Admittedly, the prosecutrix was attending to all her household work, going to the market, being in contact with her family etc. and accused Mr.Kishan Kumar was not always with her. She was safely with her family immediately thereafter and there was no reason for her not to disclose about the incident of ten years and not to report the matter to the police. This shows that there is a delay of ten years made by the prosecutrix in approaching the police and a delay of same period in lodging the FIR.
55. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
56. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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57. I find on perusal of the record that indeed the criminal action was swung into motion on 15.01.2011 while there is delay of ten years. The prosecutrix has deposed in her evidence that out of fear of the accused, she did not report the matter earlier. However, it is also clear that after the alleged incident during the ten years, she was meeting others. Even then, she preferred not to make any complaint of rape against the accused. No explanation is coming forth from the prosecution as to why she did not tell about the rape to her family, neighbours, friends and others with whom she may be in contact.
58. It is also an admitted fact that the prosecutrix did not report to the police immediately. She has claimed that she was under the fear of the accused. This appears to be also contrary to the record as if she could call the police on 15.01.2011 when there was an alleged quarrel between her and the accused and she was allegedly beaten, she could have easily disclosed about the incident of rape for ten years to others.
59. These facts indicate that the possibility of the version of the prosecutrix being untrue cannot be completely ruled out.
60. Therefore, it can be said that the FIR was lodged after a delay of about ten years which is fatal to the prosecution story and the same has not been satisfactorily explained.
No medical or forensic evidence of rape for ten years
61. On careful perusal of the file including the MLC of the prosecutrix Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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(Ex.PW6/A), it is clear that there is no evidence whatsoever, medical and forensic, to show that the prosecutrix was raped from 2001 till prior to 15.01.2011. Even the samples were not preserved because the prosecutrix had last intercourse one month back. ''This fact also throws a shadow of doubt on the prosecution version.
Evidence of prosecutrix not reliable
62. PW1, the prosecutrix, has deposed in her examination-in-chief that accused Mr.Kishan Kumar used to visit her house along with her husband for the last 10-12 years and later on he used to visit her house in absence of her husband. Accused Mr.Kishan Kumar had committed rape upon her in the year 2001 but she did not remember the month and date. It was about 11.00 am when accused Mr.Kishan Kumar came to her house while she was alone. She has two children namely Kundan aged about one year and Chandani aged about 2 and half years at that time, who were also present at that time in the house. There were three rooms in the house and he came and sat in her room as they were having only one room on rent and at that time children were also present in her room. He forcibly committed rape upon her. She was wearing a sari at that time of alleged act by the accused. He threatened to kill her in case she disclosed his act to anyone and she did not disclose about the incident to any one. He continued to commit rape with her on different occasions till 2011, till she lodged the complaint on 15.01.2011.
63. However, her veracity of her testimony in her examination in chief is shattered when she has deposed in her cross examination that "The accused used to visit my house 3/4 times in a week between 10.00 to 11.00 am and Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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used to commit rape with me..... The accused used to visit my house every week since 2001 to 2011..... I never raised any alarm or shout when accused used to forcibly commit rape upon me. Vol. He has threatened me with death. I have never disclosed his act to anyone in neighbourhood to any one including landlord...... The eatable articles were brought by me from the nearby weekly market in the evening.....I used to go for stitching my clothes from the lady tailor near my house."
64. She has also deposed that her landlord did not suspect anything wrong which indicates that the landlord was aware of her relationship with accused Mr.Kishan Kumar.
65. Although there was a Police Station in the vicinity of her residence, she has preferred not to make a complaint for ten long years of the alleged rape by accused Mr.Kishan Kumar. She has admitted that "My house is situated in the jurisdiction of PS Uttam Nagar at a distance of about half an hour in a vehicle from my house. I had seen PS Uttam Nagar." but still she has not been able to furnish any reason for not making any complaint.
66. She has neither disclosed the words used by accused Mr.Kishan Kumar in threatening her with death, how and in what manner the alleged threat was extended as well as the impact of the alleged threat. She has also failed to explain as to why she despite being with her family, her neighbours, her friends, her going of her house to the market and elsewhere, etc., she preferred to remain silent for ten years before making the complaint. She has also failed to explain why she was permitting him to come to her house so Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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frequently (3-4 times in a week) if she was being forced to have physical relations with him. She would have protested and resisted if she had actually been raped for such a long duration.
67. PW2, a neighbor of the prosecutrix, who is hostile to the prosecution case, has deposed that accused Mr.Kishan Kumar used to visit the house of the prosecutrix for last 7/8 years and that he was working with her brother.
68. It is also clear from the evidence of the prosecutrix that she has not told the truth before the Court and withheld the same when in her cross examination, she has deposed that "It is correct that Mark C does not contain the receiving by the office of Joint CP (Special). Vol. I have got this complaint received in the office but I do not know the date when I gave the complaint.....I have never sold any plot to Krishan Kumar or his family member. Photocopy of GPA Mark E is shown to the witness by the defence counsel and she had identified her photograph at point X but denied her signature at point Y. Vol. Accused Krishan Kumar has threatened me and forced me to appear before the Registrar for pertaining these documents. Photocopy of bayana agreement Mark F is shown to the witness by defence counsel and she denied her signature at point X. I can identify the signature of my sister Sonam. The Mark F does not bear her signature at any place."
69. It is apparently clear from the documents put to the prosecutrix and also brought by DW2 byana receipt, GPA, agreement to sell, affidavit, Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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another receipt and possession letter (Ex.DW2/A to F) that there were some dispute about sale of property between the two sides which the prosecutrix has now denied in her evidence. Accused Mr.Kishan Kumar has also lodged FIR No.28/11 PS Ranhola under sections 420/468/471/452/380/323/324/34 IPC against the prosecutrix and others (Mark DW2/A).
70. The prosecutrix has also not deposed truthfully about the work of her husband and brother when she has deposed that "My husband is not doing any business as he is working in an export factory. On seeing the photocopy of Mark D given by learned defence counsel the witness states that my brother Neeraj is doing business in the name of my husband which find mention in Mark D. Neeraj is doing business independently. ...Earlier my husband was doing job in RAN Company and Krishan Kumar was also in the same company in the year 1999. Later on my husband started work doing in Richa Export Factory, Kirti Nagar since the year 2003." As she is not deposing the truth about the work of her husband, not much belief can be placed upon the evidence of the prosecutrix as there is a strong possibility of her not telling the truth even later while levelling allegations against the accused.
71. In fact, it emerges from her evidence that she was willingly having physical relations with accused Mr.Kishan Kumar for ten years, which may have been an extra marital affair since her husband was not at home at that time. Whatever physical relations the prosecutrix may have had with accused Mr.Kishan Kumar since 2001 till 15.01.2011 appear to be consensual and with her free consent and willingness.
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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72. Therefore, in view of the aforesaid discussion, it is clear that the prosecution has failed to bring home the charge against accused Mr.Kishan Kumar for the offences under sections 376 and 506 IPC for having raped and threatened to kill the prosecutrix from the year 2001 till prior to 15.01.2011 and accordingly he merits to be acquitted.
SECTIONS 323/34 AND 341/34 OF THE IPC (INCIDENT OF 15.01.2011) AGAINT BOTH THE ACCUSED
73. Now coming to the incident of 15.01.2011, the prosecutrix, as PW1, has deposed that on 15.01.2011, accused Mr.Kishan Kumar made a telephone call to her on her mobile phone number (number withheld) at about 9.27 am from his mobile bearing no.9716305042 and asked her to meet him at Vipin Garden Naala. She reached there at about 9.40am where both the accused persons Mr.Kishan Kumar and Mr.Pankaj were present. Immediately both of them started beating her. Accused Mr.Pankaj caught hold of her from behind and gave her fists and kicks blows. Accused Mr.Kishan tore off her suit and tried to commit rape with her even at that time also. She tried to save herself and in the meantime, accused Mr.Kishan gave a brick blow on her head. As a result, she became unconscious at the spot. She regained consciousness after about one hour and made a telephonic cal at number 100 to the police. Police took her to the Police Station at Uttam Nagar where she narrated the whole incident to the police personnel. Her statement (Ex.PW1/A) was recorded by the police. From Police Station, she was taken to DDU hospital, where she was medically examined by the doctors. Her clothes were not seized in the hospital. Accused Mr.Kishan Kumar was Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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arrested by the police in her presence vide arrest memo (Ex.PW1/B) and his personal search memo (Ex.PW1/C) was also prepared. Her mobile was in the name of her husband Mr.Sunil Kumar. She had shown the place of occurrence to the police and police prepared the site plan (Ex.PW1/D). She had also lodged a report (Mark C) against the accused Mr.Pankaj Kumar and IO of the case. She had also lodged a complaint before the DCP regarding the present case.
74. The prosecutrix, as PW1, in her cross examination has deposed that "When I went to the spot near naala at Vipin Garden I was having my mobile phone. On that day I had talked with accused Krishan from my mobile. On the spot I first made call to the police at number 100. I did not make telephonic call to any other person from that spot. On reaching police station I had made telephone call to the sister Ms. Sonam and also to my husband."
75. Here it may be observed that the CDRs produced by the Nodal Officers of the concerned telecom companies (PWs 9 and 13) show that indeed there were some talk between the prosecutrix and accused Mr.Kishan Kumar on 15.01.2011. The CDR of the mobile phone of the prosecutrix also shows that she had talked to her sister (who has not been examined) before calling the police.
76. Also her evidence that "There were no shop near the spot of occurrence. It was a lonely place. Public persons were not seen by me while coming and going on the spot. There were no residential place or office Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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near the spot of occurrence. No vehicle came there on the spot." does not appear to be believable as the spot of incident is a public place and it cannot be believed that neither any public person was available nor any vehicle was there.
77. Her allegation that accused Mr.Kishan Kumar attempted to rape her on 15.01.2011 (for which charge has not been framed by the learned predecessor) does not appear to be believable as no man, howsoever of criminal nature, would attempt to rape any woman at a public place in full public glaze.
78. Further, regarding the allegation of the prosecutrix of beating by both accused persons, the MLC of the prosecutrix (Ex.PW6/A) which is dated 15.01.2011 shows that on local examination in the Casualty, it was found that the prosecutrix has abrasions over B/L wrist, ant ab wall and swelling Rt side of forehead. Despite the prosecutrix knowing the names of both the accused persons, she has failed to give their names as the culprits to the two doctors who examined her. In fact, she only states to the doctor about one accused who having intercourse with her since last ten years (indicating that it is accused Mr.Kishan Kumar). Her not mentioning about the second culprit in the MLC (accused Mr.Pankaj Kumar) only indicates that accused Mr.Pankaj Kumar was not there at the spot where the alleged incident had occurred.
Merely be her mentioning his name in her complaint and in her evidence, it cannot be said that accused Mr.Pankaj Kumar was indeed at the spot of incident on 15.01.2011 as there is no substantive nor corroborative evidence to show the same.
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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79. The injuries received by the prosecutrix are of simple nature as they are only abrasions on her wrist and abdomen and swelling on her forehead. The prosecutrix has deposed that accused Mr.Kishan Kumar had hit her with a brick on her forehead and has deposed that "Police has taken into possession the brick from the spot" but this brick (weapon of offence) has neither been seized by the police nor produced in evidence which makes the version of the prosecutrix doubtful. Also, if she was assaulted with a brick, it would not be an ordinary swelling but there should have been some more serious type of injury with atleast some bleeding. However, the MLC only shows that there was only swelling on the forehead.
80. Further, the prosecutrix has deposed that her suit was torn in the incident but again this suit has neither been seized by the police nor produced in evidence which makes the version of the prosecutrix doubtful.
81. Another interesting fact which emerges from the evidence of PW5, husband of the prosecutrix is that he has only deposed in his examination in chief about the alleged attempt of rape of the prosecutrix by accused Mr.Kishan Kumar but he does not mention about any injury being caused to her and about the presence of accused Mr.Pankaj Kumar. This fact also indicates that accused Mr.Pankaj Kumar was not present at the spot and there was no beating given by the accused persons to the prosecutrix. PW5 has also made several improvements in his evidence before the Court and he has been confronted with the same in his cross examination. Also his deposition that he is not aware about any land dispute between his wife, his sister in law Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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Ms.Pinku Devi @ Sonam and accused Mr.Kishan Kumar is not believable as a husband can be presumed to be aware about any litigation/dispute by or against his wife.
82. Therefore, in view of the foregoing discussion, it is clear that the version of the prosecutrix does not appear to be reliable regarding the alleged incident of 15.01.2011.
Alibi of accused Mr.Pankaj Kumar
83. Accused Mr.Pankaj Kumar has claimed that he was not at the spot on 15.01.2011 as he was attending to his work. He has also filed a certificate of his employer (which has not been produced and proved in evidence). Since, it is not proved in accordance with law, the same cannot be taken into consideration. However, as already discussed above, the presence of accused Mr.Pankja Kumar at the spot is doubtful since the version of the prosecutrix is not reliable.
Previous litigation
84. The prosecutrix has admitted that "I am aware about the fact that a property dispute is going on between the accused Krishan Kumar and my sister Ms. Sonam. Vol. In the year 2010 the plot of my sister was focibly possessed by accused Krishan Kumar as aunt (bua) namely Ms.Sulochana of Krishan Kumar was living in said plot of my sister. I was never involved in any dispute of property between accused Krishan Kumar and my sister."
85. Accused persons have also produced and proved four DDs Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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(Ex.DW1/A to DW1/D) to show that both the sides have been filing complaints against each other.
86. However, this fact of the previous litigation and dispute can be a double edged weapon as both can commit an offence (as Mr.Kishan Kumar and Mr.Pankaj Kumar as accused in the present case with the prosecutrix as victim) and the accused as complainants with the prosecutrix as a culprit (in DDs Ex.DW1/A and B). In such a situation the possibility of false implication of both the accused persons by the prosecutrix can not be completely ruled out.
PUBLIC WITNESSES NOT EXAMINED
87. The prosecution has failed to examine some very material witnesses namely Ms.Sonam, sister of the prosecutrix, Mr.Neeraj, brother of the prosecutrix as well as the landlord of the prosecutrix. They could have thrown some light on the facts of the case which could have facilitated the Court in adjudicating the matter. However, they were neither cited as witnesses in the list of witnesses of the prosecution nor produced nor examined by the prosecution.
88. No public person who may have been able at the spot on 15.01.2011 has been associated in the investigation and produced before the Court for evidence.
INVESTIGATION
89. The investigation conducted in the present case has been deposed Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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by the police witnesses. The FIR has been proved by the duty officer. The MLCs of the prosecutrix and the accused have been proved by the doctors. There is nothing on the record which could show that the investigation has not been conducted properly, fairly and impartially.
90. The investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the IO. They have deposed on the lines of the prosecution case.
91. It is the actual crime which is important than the investigation.
Where the actual crime is being elaborated and proved in the evidence of the prosecutrix, then the investigation becomes less important.
92. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
93. Therefore, the investigation although it is material but not very relevant as the evidence of the prosecutrix itself is not reliable CONCLUSION
94. Since the prosecutrix as PW1 is neither reliable nor believable as there are overwhelming discrepancies and inconsistencies in her different Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against both the accused. The prosecution story does not inspire confidence and is not worthy of credence.
95. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish threat and rape by the accused Mr.Kishan Kumar since 2001 till prior to 15.01.2011 and restraint and beating on 15.10.2011 by both the accused Mr.Kishan Kumar and Mr.Pankaj Kumar. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.
96. In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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the accused and must show that in all human probability the act must have been done by the accused.
97. Applying the above principles of law to the facts of present case, it is evident that the identity of both the accused Mr.Kishan Kumar and Mr.Pankaj Kumar stands established. They were known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was not a minor when the alleged offence was committed. It also stands established that there was no threat and rape of the prosecutrix by the accused Mr.Kishan Kumar since 2001 till prior to 15.01.2011 and restraint and beating on 15.10.2011 by both the accused Mr.Kishan Kumar and Mr.Pankaj Kumar. There is no incriminating evidence against both the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.
98. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was threatened and raped by the accused Mr.Kishan Kumar since 2001 till prior to 15.01.2011 and restrained and beaten on 15.10.2011 by both the accused Mr.Kishan Kumar and Mr.Pankaj Kumar.
99. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against both the accused.
100. Accordingly, Mr.Kishan Kumar is hereby acquitted of the charges for the offences of threat and rape under sections 506 and 376 of Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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the IPC and Mr.Kishan Kumar and Mr.Pankaj Kumar, both the accused, are hereby acquitted of the charges for the offences of wrongful restraint and causing hurt under sections 341/34 and 323/34 of the IPC .
101. It would not be out of place to mention here that today there is so much public outrage and a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C.
102. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
103. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
104. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
105. After the expiry of the period of limitation for appeal, the file be consigned to record room.
Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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Announced in the open Court on (NIVEDITA ANIL SHARMA) this 29th day of August, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
************************************************************** Sessions Case Number : 87 of 2013.
Unique Case ID Number : 02401R0139852011.
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