Delhi District Court
Phool Chand vs The State on 4 August, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 266/2019 (RBT 107/22)
IN THE MATTER OF:
Phool Chand
S/o Sh. Kallu,
R/o Village Kherva, The Haidergarh
District Barabanki,
PS- Haidergarah, UP
............Appellant
Versus
The State
..........Respondent
Instituted on : 05.07.2019
Reserved on : 10.07.2023
Pronounced on : 04.08.2023
JUDGMENT
1. Vide this judgment, I shall dispose of Criminal Appeal U/s 374 Cr.P.C preferred on behalf of appellant Mr. Phool Chand against the judgment dated 27.04.2019 and order on sentence dated 06.06.2019 passed by Ld. MM-06, South in case titled as State Vs. Phool Chand pertaining to FIR No. 338/2013, U/s 279/337/304-A IPC, PS Hauz Khas whereby the appellant herein was convicted for the offences U/s 279/337/304-A and was sentenced accordingly.
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2. Briefly stated the facts as per record are as under:-
An FIR was lodged for the offences U/s 279/337 IPC at PS Hauz Khas on 03.09.2013 on the basis of written statement of one Mr. Jitender. It was alleged by him that on 02.09.2013 at around 9:30 PM he alongwith one Mr. Bhimsen was going towards K.M. Pur on Scooter from the side of Malviya Nagar. As soon as they reached under Panchsheel flyover on green light, one white coloured Balero Mahindra bearing no. DL-1LM-3069 jumped the red light and hit their vehicle. On this, Mr. Bhimsen got unconscious whereas he noted down the vehicle number of the offending vehicle. The driver of the offending vehicle waited for sometime and thereafter fled away from the spot. Thereafter, injured Bhimsen was taken to the hospital in a private vehicle and he returned to his home. He narrated the entire incident to the family members whereupon he was took to AIIMS Trauma Center. After registration of FIR, investigation was conducted. During the course of investigation, injured Bhimsen got expired on 07.09.2013. After completion of investigation, charge-sheet for the offences U/s 279/337/304-A IPC was filed against the appellant before Ld. Trial Court on 11.03.2014. Appellant was summoned as an accused for 19.04.2014. Notice U/s 251 Cr.P.C. was framed against him for the offences U/s 279/337/304-A IPC on 13.10.2014 to which he did not plead guilty and claimed trial. During the course of trial, the appellant admitted the FIR as EX.A-1, MLC of deceased Bhimsen as Ex.A-2, MLC of injured Jitender as Ex.A-3, Postmortem report as Ex.A-4, Mechanile inspection report Ex.PW2/A and Ex.PW2/B, case property register No.19 as Ex.A-5 and DD Nos. 3B and 6A as Ex.A-6 (Colly). Corresponding witnesses were dropped from the list of witnesses.
3. The prosecution has examined following four witnesses in support of its case:-
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GUPTA 2023.08.05 15:42:09 +0530 3.1 PW-1 is injured Jitender. He is the eye witness of the incident. His testimony is material for decision of this appeal. Same shall be discussed in detail later on.
3.2 PW-2 is T.U. Siddiqui. He is a Mechanical Inspector. He has proved the mechanical inspection report of Honda Scooter bearing no. DL-3SAZ-1499 as Ex.PW2/A and that of Mahindra Bolero bearing no. DL-1LM-3069 as Ex.PW2/B. He could not be cross-examined on that day as lawyers were abstaining from work however, same is of no consequence as mechanical inspection report of both the vehicles were admitted by the appellant U/s 294 Cr.P.C. on 21.02.2017.
3.3 PW-3 is Hemant Kumar. He is owner of the offending vehicle bearing no. DL-1LM-3069. He has deposed that the appellant was driving the said vehicle on the fateful day. He has proved his reply to the notice U/s 133 M.V. Act as Ex.PW3/A and Superdarinama whereby he got his vehicle as Ex.PW3/B (Colly). He was duly cross-examined by Ld. Defence Counsel.
3.4 PW-4 is SI Naveen Kumar. He is the Investigating Officer of the case. He has deposed about the steps taken by him during the investigation. He has proved the rukka and endorsement on the same as Ex.PW4/A, the site plan as Ex.PW4/B, seizure memo of both the vehicles as Ex.PW4/C and Ex.PW4/D. He has proved arrest memo and personal search memo of appellant as Ex.PW4/E and Ex.PW4/F respectively. He also proved seizure memo of driving licence of the appellant as Ex.PW4/G, seizure memo of original RC of offending vehicle and that of photocopy of insurance and fitness certificate as Ex.PW4/H and Ex.PW4/I respectively. He further proved the handing over memo of dead body CA No.266/2019 Phool Chand Vs. State Page 3 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
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of the deceased as Ex.PW4/J. He was duly cross-examined by Ld. Defence Counsel.
4. After completion of prosecution evidence, statement of the appellant U/s 313 Cr.P.C. was recorded wherein he stated that he has been falsely implicated in the present matter. He also stated that no accident took place from his vehicle. He further stated that when he reached at the spot, the accident has already taken place and he was trying to help the injured by putting him in autorickshaw. No witnesses were examined by the appellant in his defence. After considering the material on record, Ld. Magistrate convicted the appellant for the offences U/s 279/337/304-A IPC vide judgment dated 27.04.2019. He was sentenced vide Order on Sentence dated 06.06.2019. Said order is being challenged in these proceedings.
5. Arguments heard.
6. It has been argued by Ld. Counsel for appellant that Ld. Trial Court has fell in error in convicting the appellant as material on record was not properly appreciated. It was submitted that the only eye witness Mr. Jitender has not supported the case of the prosecution. There are several contradictions in his testimony. It has been submitted that in his cross-examination, PW-1 Jitender has submitted that he became unconscious soon after the incident so it could not have been possible for him to identify the offending vehicle or the driver of the said vehicle. It has been submitted that the site plan in question has not been signed by PW-1 making his presence at the spot doubtful. It was further argued that there is nothing on record to show that offending vehicle was being driven in rash and negligent manner. It was further submitted that merely because the vehicle was being driven in high speed does not mean that same amounts to rash CA No.266/2019 Phool Chand Vs. State Page 4 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
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and negligent driving. Prayer has been made for acquittal of the appellant. He has relied upon following judgments:-
(i) Abdul Subhan Vs. State (NCT of Delhi) 2007 CriLJ 1089 (Delhi High Court).
(ii) Govind Vs. State of M.P. 2005 CriLJ 1244 (M.P High Court).
(iii) Deshraj Chopra & Ors. Vs. Pooran Mal & Ors. AIR 1975 Delhi 109 (Delhi High Court).
7. Ld. Addl. PP for State has submitted that there is no illegality in the impugned judgment and the appellant has rightly convicted as the material on record was sufficient for this purpose. Prayer has been made for dismissal of the appeal.
8. I have considered the submission from both the sides alongwith record.
9. As metioned earlier, appellant herein has been convicted for the offences U/s 279/337/304A IPC. Section 279 IPC provides as under:-
"279. Rash driving or riding on a public way.-- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
9.1 Section 337 IPC provides as under:-
"337. Causing hurt by act endangering life or personal safety of others.--Whoever causes hurt to any person by doing any act so rashly or CA No.266/2019 Phool Chand Vs. State Page 5 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
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negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both."
9.2 Section 304-A IPC provides as under:-
"304A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
10. PW-1 Mr. Jitender is the material witness examined by prosecution to prove its case. He is one of the injured in the alleged incident and the sole eye witness thereof. His examination-in-chief was recorded before Ld. Trial Court on 11.03.2015. During his testimony, he deposed that on 09.03.2013, he alongwith Bhim Singh was going towards Shahpur Jat from Malviya Nagar on Scooter. He was unable to recollect the registration number of the scooter. He further stated that suddenly a Bolero Mahindra bearing no. DL1LM3069 jumped the red light and hit him and Bhim Singh whereupon they fell down on the road. He stated that the driver of the said vehicle was driving the same in a high speed. Thereafter, driver of offending vehicle ran away from the spot. He identified the appellant as the person who was driving the offending vehicle. He further stated that a vehicle came at the spot after the incident and took Bhim Singh to the hospital whereas he came to his home. He further stated that his family members took him to hospital and he went to PS Hauz Khas thereafter and lodged complaint Ex.PW1/A bearing his signature at Point A. He stated that CA No.266/2019 Phool Chand Vs. State Page 6 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
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he came back home after that. Six photographs (4 photographs of the offending vehicle and 2 photographs of scooter) were shown to him which were correctly identified by him and the photographs were exhibited as ExPW1/2 to Ex.PW1/6.
11. So it is clear from examination in chief of PW-1 recorded before Ld. Trial Court that he has fully supported the case of prosecution. He has described the offending vehicle and has identified the appellant as its driver at the relevant time. He has also described the manner in which vehicle was being driven and that they were hit by such vehicle. He was not cross-examined by defence on that day. Ld. Proxy Counsel for the appellant made a request for adjournment on the ground that main counsel was not well and his request was allowed subject to payment of diet money to the witness which was paid on the same day and also subject to furnishing of proof of illness of the counsel which never came on record. Thereafter, the witness was present for his cross-examination on 24.4.2015 however, he was discharged unexamined on that day because lawyers were abstaining from work. Ultimately, the witness could be cross-examined on 21.02.2017 i.e., around 2 years after his examination-in-chief was recorded. In his cross-examination, he took a u-turn from his earlier testimony and did not support the case of prosecution at all. He stated that it was correct that he was unable to recollect the registration number of the offending vehicle. He admitted the suggestion that he do not remember the registration no. of Bolero Mahindra car which was allegedly involved in the case. He volunteered to say that police officials had told him the number of the said car. He also stated that soon after the alleged incident, he became unconscious and somebody in the public put him in autorickshaw and somehow that autorickshaw took him to his house. He also admitted the he has not seen the driving of the offending vehicle at the spot. He further admitted the suggestion that he cannot identify the car which caused the accident and stated that it was of white colour. He further stated that CA No.266/2019 Phool Chand Vs. State Page 7 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
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he identified the offending vehicle from photographs annexed in the file at the instance of police officials. He also stated that he had met the investigating officer only once i.e, on the day when the FIR was registered. He was re- examined by Ld. APP wherein he was asked as to whether the accident occurred on 03.09.2013 or 09.03.2013 to which he replied that he is unable to recollect.
12. Main argument of Ld. Defence Counsel before this court to assail the impugned judgment is that the injured/PW-1 has not supported the case of prosecution at all in his cross-examination. He has argued that as per the cross- examinaiton of PW-1, he had become unconscious so he could not have noted down the registration no of the offending vehicle and also could not have seen the driver of the said vehicle. As mentioned earlier, the complainant had supported the case of prosecution on 11.03.2015 in entirety and did not support the same at all after around two years thereof, clearly suggesting that he was won over by defence in between. It is to be noted that the request for adjournment on 11.03.2015 was made on the ground of alleged illness of Ld. Defence Counsel and same was granted subject to furnishing of relevant medical documents but no such document ever came on record. Ld. Defence Counsel has relied upon the judgments in Govind Vs. State of M.P. 2005 CriLJ 1244 and Deshraj Chopra & Ors. Vs. Pooran Mal & Ors. AIR 1975 Delhi 109 and has stated that cross-examination of a witness is an essential tool in the hands of defence to test the credibility of a witness and the cross-examination of PW-1 should be appreciated in that light. There cannot be any dispute to the fact that the defence is entitled to cross-examine each and every witness produced by the prosecution. Also, in case a witness is not put to cross-examination then his testimony cannot be considered by the Court while deciding the matter. However, in this matter, the things are not that simple. The tone and tenor of questions put to the complainant in his cross-examination in itself are indicative CA No.266/2019 Phool Chand Vs. State Page 8 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
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of the fact that the witness was won over by defence and that knowing this fact, only suggestions were put to him. In the entire cross-examination, the witness has been put different suggestions and except the first and last suggestion, he has admitted all the remaining suggestions. It is surprising that a witness who had supported the case of prosecution in his examination-in-chief was not put any question except the suggestions.
13. In these facts, this Court is guided by judgment of Hon'ble Apex Court in Khujji @ Surendra Tiwari Vs. The State of Madhya Pradesh AIR 1991 SC 1853. In that case also, one eye witness of the incident in question had supported the case of prosecution in his examination in chief however, he did not do so at all in his cross-examination recorded around one month after that. Ld. Trial Court rejected his evidence however, the petitioner before Hon'ble Supreme Court was still convicted for the offence U/s 302 IPC. On appeal, the High Court accepted the testimony of said witness on the ground that he was won over by the accused by threat or otherwise by the time of his cross- examination. It was argued before Hon'ble Apex Court that testimony of said eye witness could not have been taken into consideration by Hon'ble High Court as he had not supported the case of prosecution during his cross-examination. In these facts, Hon'ble Apex Court held as under:-
" The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identi-ty to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant and his compan-ion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief."CA No.266/2019 Phool Chand Vs. State Page 9 / 15
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14. Reliance is also placed on the judgment of Hon'ble Apex Court in Vinod Kumar Vs. State of Punjab Crl. Appeal No. 554/2012. In that case also, one of the material witnesses had supported the case of prosecution during his examination-in-chief however, he took a U-turn in his cross examination and did not support the case of prosecution at all. The appellant before Hon'ble Apex Court was still convicted by Ld. Trial Court and same was upheld by Hon'ble High court. In the appeal before Hon'ble Supreme Court one of the grounds taken by the appellant was that the testimony of said witness could not have been considered as he had turned hostile. In these facts, Hon'ble Apex Court held as under:-
"40. Reading the evidence in entirety, his evidence cannot be brushed aside. The delay in cross-examination has resulted in his pre- varication from the examination-in-chief. But, a significant one, his examination-in-chief and the re-examination impels us to accept the testimony that he had gone into the octroi post and had witnessed about he demand and acceptance of money by the accused."
15. In this case also, the record indicates that the cross examination of complainant Jitender was a result of him having been influenced by the other side. It is to be noted that as per his cross examination, he had become unconscious and somebody from the public put him in the auto rickshaw which took him to his house. It is not clear as to how the auto rickshaw driver was able to locate his house as he could not have been informed about the location thereof by the injured as he was unconscious. It is not that any relative or acquittance of the complainant was present who had accompanied him to his home so this is clearly a false statement given by him so as to somehow justify his stance that he did not note down the number of the offending vehicle and that he had not CA No.266/2019 Phool Chand Vs. State Page 10 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
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seen the driver of offending vehicle. In these facts his cross-examination is not being considered for deciding this appeal.
16. Another argument of Ld. Defence Counsel is that there is nothing on record to show that the vehicle was being driven in a rash or negligent manner. It is to be noted that for holding an accused guilty for of the offences in question, one of the essential ingredients required to be duly proved is, that the act done which endangered the human life or the act done which caused the death of the person must necessarily be a "rash or negligent act". Where the act which caused the death of a person or which endangered the human life is not proved to be a rash or negligent act, the accused cannot be held to be guilty for the offences under Sections 279 or 337 or 304A of the IPC. However, the terms rashness or negligence have not been categorically defined in any statute. The dictionary meaning of the term rashness is, "an act done without due consideration", i.e. an act done without anticipating or caring for the result that may ensue by the act done. Whereas, the dictionary meaning of the term negligence is " failure to exercise due degree of care under the given circumstances which any reasonable man would have exercised" or "failure to exercise due degree of care under the given circumstances which under a given situation law requires to be exercised". Accordingly, both rashness as well as negligence are subjective concepts, and for ascertaining whether any particular act is rash or negligent no straight jacket formula can be laid down. Each case has to be decided on the basis of its own peculiar facts and circumstances. Furthermore, rashness and negligence are pure questions of facts so no presumption can be raised with respect to these. Rashness/negligence ought to be duly proved by the party who alleges that the person who endangered the human life or the person who has caused the death of another person was acting as such.
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signed by
SUNIL SUNIL GUPTA
Date:
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17. It is to be seen that PW-1 in his initial statement (Ex.PW4/A) given to police on the basis of which FIR in question was registered has clearly stated that the vehicle in question was being driven in high speed and in rash and negligent manner. He has also stated therein that the appellant had jumped the red light (signal todkar). He has deposed to the same effect in his testimony dated 11.03.2015. Now, jumping a red-light while driving a vehicle in itself is a rash act and in view of this Court, no other evidence is required to show the same.
18. Another argument of Ld. Defence Counsel is that the identification of both the vehicles on the basis of photographs was not correct as the photographs are admittedly printouts of images taken from a digital camera and there is no certificate U/s 65B Indian Evidence Act, 1872 on record. Perusal of cross examination of IO/PW-4 SI Navin Kumar shows that he has admitted that the photographs of offending vehicle were clicked by him by a camera and that no certificate U/s 65B Indian Evidence Act, 1872 was placed on record. In view of categorical judgments of Hon'ble Apex Court in Anvar P.V. Vs. P.K.Basheer, Civil Appeal No. 4226/2012 and Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Ors., Civil Appeal Nos. 20825-20826/2017, the photographs were not admissible in evidence in the absence of certificate U/s 65B Indian Evidence Act, 1872. Ld. Defence Counsel is correct on this point however, it appears that same shall not have any effect on the final outcome of present matter. It is to be seen that the complainant has clearly mentioned the registration no. of the offending vehicle in his examination in chief. He has also mentioned that he was alongwith deceased on a scooter however, he was unable the recollect the registration of no. of the scooter. PW-4/IO SI Navin Kumar in his testimony stated that when he reached at the spot on receiving the information, he found one car make Bolero bearing no. DL1LM3069 and one CA No.266/2019 Phool Chand Vs. State Page 12 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.08.05 15:45:25 +0530 scooter bearing no. DL3SAZ1499 in accidental condition. It is not in dispute that both these vehicle were seized by investigating agency vide seizure memo Ex.PW4/C and Ex.PW4/D. Both the vehicles were examined by the mechanical inspector/PW-2 vide mechanical inspection reports Ex.PW2/A and Ex.PW2/B showing damages to both the vehicles. Those mechanical inspection reports have been admitted by the appellant U/s 294 Cr.P.C. on 21.02.2017. It is not in dispute that the appellant herein was driving the vehicle No. DL1LM3069 on the fateful day. PW-3 Mr. Hemant Kapoor who is admittedly owner of said vehicle has deposed that on that day of incident, the appellant was driving the vehicle in question. In this factual matrix, it was for the appellant to explain as to how his vehicle was found in accidental condition at the spot on that day. The burden of proving this fact was upon him U/s 106, Indian Evidence Act, 1872.
19. Another ground taken by Ld. Defence Counsel is that the site plan is not bearing the signature of complainant Jitender and he has also not stated anything about the same in his evidence which indicates that same was prepared by IO on his own. It is true that the site plan Ex.PW4/B is not bearing signature of PW-
1. There is also no dispute to the fact that PW-1 has not deposed anything about the site plan either in his examination-in-chief or in his cross-examination. The site plan in question has been proved by IO. He has stated that after handing over the rukka to Constable Sunil for registration of FIR, he went to the spot alongwith complainant Jitender and prepared the site plan at his instance. He was given suggestions in his cross-examination to the effect that he had not visited the spot and that he had prepared all the documents at PS and that he had prepared the site plan on its own. He has denied all the suggestions. In view of silence of PW-1 on the issue of site plan, testimony of PW-4/IO on this aspect and there being nothing else in the file to show otherwise, this Court is of the CA No.266/2019 Phool Chand Vs. State Page 13 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
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view that site plan cannot be doubted with merely due to absence of signature of the injured.
20. MLC of PW-1 Jitender Ex.A-3 shows that he received simple injury from some blunt object. Postmortem report of the deceased Ex.A-4 shows that cause of death has been mentioned as craweo cerebral injury caused by blunt external forces which could be possible in road traffic accident. Both these documents have been admitted by the appellant U/s 294 Cr.P.C. The case of prosecution is that those injuries were caused due to incident in question and there is nothing on record to doubt the same.
21. Although, PW-1 has wrongly mentioned the date of incident as 09.03.2013 instead of 02.09.2013, however, same seems to be an inadvertent mistake. It is not in dispute that the FIR in question was lodged qua an incident dated 02.09.2013. It is also not the case of either party that any incident pertaining to present matter took place on 09.03.2013. Said lapse on the part of complainant can be due to the fact that he was deposing after more than 18 months of the incident. So, same is not going to affect the case of prosecution.
22. Ld. Defence Counsel has laid emphasis on the judgment of Hon'ble Delhi High Court in Abdul Subhan Vs. State (NCT of Delhi) 2007 CriLJ 1089 and has submitted that in this case also, the prosecution has failed to prove its case beyond reasonable doubt. Said judgment is clearly distinguishable on facts. In that case, the direction of vehicles involved in the alleged incident was not clear. There was nothing on record to show the rashness or negligence of the offending vehicle and even the investigating officer was not examined.
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SUNIL SUNIL GUPTA
Date:
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23. Considering the above discussion, this Court holds that the prosecution has successfully proved beyond reasonable doubt that the appellant herein was driving the vehicle No. DL1LM3069 on the fateful day and while driving the same, he jumped the red light and hit the scooter bearing No. DL3SAZ1499 which resulted in simple injuries to PW-1 Mr. Jitender and death of Mr. Bhimsen. Resultantly, the appellant is liable to be convicted for the offences U/s 279/337/304A IPC. Ld. Trial Court has rightly convicted him for those offences.
24. The appeal stands dismissed as far as same pertains to his conviction.
25. Order on sentence shall be passed after compliance in terms of judgment of Hon'ble Delhi High court in Karan Vs. State NCT of Delhi Crl. Appeal 352/2020.
Digitally signed by SUNIL SUNIL GUPTA
GUPTA Date:
2023.08.05
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Announced in the open (Sunil Gupta)
Court on 4th August,2023 Additional Sessions Judge-06,
South, Saket Courts, New Delhi
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