Patna High Court
Pintu Kumar vs The State Of Bihar on 23 August, 2018
Author: Rakesh Kumar
Bench: Rakesh Kumar, Arvind Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No. 381 of 2013
Arising Out of PS. Case No.-169 Year-2010 Thana- Rohtas District- Rohtas
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Pintu Kumar son of Ramadhar Singh of Village- Govindpur, P.S.- Rohtas,
District- Rohtas.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant/s : Mr. Ramakant Sharma, Sr.Adv.
Mr. Rajesh Kumar, Adv.
For the Respondent/s : Mr. Ajay Mishra (App)
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date : 23-08-2018
The present appeal under Section 374(2) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.')
has been preferred by sole appellant against the judgment of
conviction and sentence dated 03-04-2013 and 06-04-2013
respectively passed in Sessions Trial No. 301 of 2011 (arising
out of Rohtas P.S. Case No. 169 of 2010) by learned Additional
Sessions Judge Ist, Rohtas at Sasaram (hereinafter referred to as
'Trial Judge'). The appellant was convicted on 03-04-2013 for
commission of offence under Sections 366(A) and 376(g) of the
Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') and
Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018
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by order dated 06-04-2013, for offence under Section 376(g) of
the I.P.C., he has been sentenced to undergo rigorous
imprisonment for life and to pay a fine of Rs. 50,000/- (Rupees
fifty thousand) and in default of payment of fine, he was
directed to further undergo imprisonment for two years. For
offence under Section 366(A) of the I.P.C. by the same order i.e.
order dated 06-04-2013, he has been sentenced to undergo
rigorous imprisonment for seven years and to pay a fine of Rs.
1,000/- (Rupees one thousand) and in default of payment of
fine, he was directed to further undergo imprisonment for one
year. All the sentences were directed to run concurrently.
2. Short fact of the case is that on 03-12-2010,
Probationer Sub-Inspector i.e. P.S.I. Sri Krishna Kumar (P.W.7)
of Rohtas Police Station recorded fardbeyan of victim aged
about 15 years, daughter of late Md. Jainul Khalifa of village -
Jalalabad, P.S. & District - Rohtas. The fardbeyan was recorded
at the door of the informant. In the fardbeyan, the
victim/informant disclosed that on 01-12-2010 at 3:15 PM, she
was going to attend the tuition class of teacher Rajeshwar
Pandey Jee in the village Patkhaulia. She alleged that one Arun
Kumar, her class-mate of village Bhuara, P.S. & District -
Rohtas, was also going for attending tuition class. He alongwith
Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018
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his friend Pintu Kumar (appellant) persuaded her to go with
them on a motorcycle and thereafter, she was carried to eastern
side of jungle from Govindpur village and both repeatedly
committed rape with her. At that very time, with a view to save
her respect, she did not open her mouth nor she disclosed
anything about the occurrence to her mother. On 03-12-2010 at
8:00 in the morning, while she proceeded for tuition class,
aforesaid two accused with their another friend namely Anil Sah
S/o Sundar Chaudhary of village Akbarpur, P.S. & District -
Rohtas tried to forcibly lift her, however; anyhow she fled away
and thereafter, she explained regarding entire occurrence to her
mother Shamima Khatoon (P.W.4). Subsequently, she alongwith
her mother (P.W.4) were proceeding to police station, in the
meanwhile, njksxkth (Darogaji) himself arrived there and
recorded her fardbeyan. The said fardbeyan was read over to
her and after finding it correct, she, in presence of her mother,
put her signature. The said fardbeyan was also signed by her
mother Shamima Khatoon (P.W.4) as well as her ekek (maternal
uncle) Imteyaj (P.W.1).
3. After recording fardbeyan, on 03-12-2010 itself at
11:00 AM, a formal F.I.R., vide Rohtas P.S. Case No. 169 of
2010, was registered for offence under Sections 376/120(B)/34
Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018
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of the I.P.C. against: 1. Arun Kumar, 2. Pintu Kumar (appellant)
and 3. Anil Sah. After investigation, 1 st chargesheet was
submitted against accused Anil Sah on 26-02-2011, whereupon,
the learned Chief Judicial Magistrate, Rohtas took cognizance
of offence on 28-02-2011. Thereafter, on 30-05-2011
supplementary chargesheet against remaining accused i.e. Arun
Kumar and Pintu Kumar (appellant) was submitted. However,
before completion of committal proceeding, case of co-accused
Arun Kumar was referred to Juvenile Justice Board. On
30-07-2011, the case of Pintu Kumar (appellant) was committed to the court of sessions and on 02-02-2012 charge against this appellant was framed for offence under Sections 366(A) and 376(g) of the I.P.C.
4. At the very outset, learned senior counsel for the appellant submitted that co-accused Anil Sah was tried separately, vide Sessions Trial No. 212 of 2011, however; he was finally acquitted by the trial court itself.
5. In the present case, after framing of charge, the prosecution, to establish its case, examined altogether ten witnesses. Out of 10 witnesses, P.W.6/victim is the only ocular witness, otherwise other witnesses namely P.W.1 Imtiyaz, P.W.2 Md. Kayum Khaleefa and P.W.3 Nausad Khaleefa, who are Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 5/20 maternal uncle (ekek) of the victim, are hearsay wintesses. Similarly, P.W.4 Shamima Khatoon, mother of the victim, is hearsay witness. P.W.5 Rajeshwar Pandey, who was teacher of the coaching institute, since did not support the prosecution case, was declared as hostile witness. P.W.9 Dr. Nand Lal Chouhan was Member of the Medical Board constituted to ascertain the age of the victim and P.W.10 Dr. Priyanshu Mala had examined the victim. P.W.7 P.S.I. Krishan Kumar was the investigating officer of the case and P.W.8 Jitendra Kumar at the relevant time was officer incharge of Rohtas Police Station.
6. After completion of the prosecution evidence, circumstances and evidences collected during the trial were explained to the appellant and his statement under Section 313 of the Cr.P.C. was recorded on 21-02-2013, in which, he claimed to be innocent and also claimed that he was falsely implicated, however; from defence side, no witness was examined.
7. Sri Ramakant Sharma, learned senior counsel for the appellant, after placing entire evidence, has argued that the prosecution has not been able to prove its case beyond all reasonable doubt and as such, the appellant was entitled at least to be given benefit of doubt. Besides this, it has been argued Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 6/20 that on examination of the evidence, it appears that the appellant has been victimized due to some other reasons. Sri Sharma submits that ofcourse initially, as per fardbeyan, it was case of the prosecutrix that on the first date i.e. 01-12-2010, she was forcibly raped by two accused persons namely Arun Kumar and this appellant (Pintu Kumar), during trial, she developed a story that on first date itself, she was raped by three accused persons. He submits that change of the version by the prosecutrix itself creates serious doubt on her evidence, in which, she had claimed that she was raped by all the three accused persons, including the appellant. However, despite the fact that she was immediately examined by Dr. Priyanshu Mala (P.W.10), during her medical examination, no sign of rape was noticed by the doctor. Even on her body, there was no injury, whereas, the victim (informant) P.W.6 had disclosed that on motorcycle, she was forcibly carried to a jungle and on a place, which was having some small stone chips, she was forcibly laid down and thereafter, raped by three persons. Sri Sharma has argued that in such a situation, there was every possibility of injury or scratches on the back side of the body of the victim, however; the doctor, who examined the injuries in categorical word, has stated that she had not noticed any sign of injury either on her Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 7/20 body or on her private part. Besides this, Sri Sharma has highlighted that the doctor (P.W.10), who examined her private part of the victim, has categorically stated that on difficulty the private part was accepting only one finger, that too tightly. In such situation, had it been a case of rape by three persons, there was every possibility of noticing some injury on her private part. Since during medical examination, no such injury was noticed by the doctor (P.W.10), certainly, it can be inferred that due to some extraneous reason, the appellant was victimised by the prosecution side. He further submits that falsity of the case is further evident that one of the co-accused, in similar circumstance, was tried separately, however; in the said trial, he was given clean acquittal, vide Sessions Trial No. 212 of 2011.
8. Learned senior counsel for the appellant has also argued that prosecution case appears to be doubtful due to the reason that in the fardbeyan, in specific term, it has been stated that her fardbeyan was recorded at her door, which was also corroborated by the investigating officer i.e. P.W.7, but during trial, the informant/victim (P.W.6) as well as her mother (P.W.4) has stated that they reached to the police station and in police station, fardbeyan of victim was recorded. He further submits that at the time of evidence, suggestion was given from the Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 8/20 appellant side that due to old animosity, the appellant was fabricated as accused in the present case. It has also been argued that it appears that the victim was having love affair with one of the accused namely Arun Kumar and this was the reason that love letter written by the victim to Arun (accused) was got exhibited from the defence side, which was marked as 'X' for identification. According to learned senior counsel for the appellant, since victim and her boy friend were hailing from different religion, it appears that due to some unforeseen reason, a false case has been instituted and the appellant. Since with him there was some animosity prior to the occurrence, he was made accused.
9. Sri Ajay Mishra, learned Addl. Public Prosecutor submits that in a case of rape, it is settled that evidence of prosecutrix itself is enough for approval of judgment of conviction and sentence. He submits that the victim in clear term has stated that forcibly on way to the coaching institute she was loaded on a motorcycle and carried to a lonely place in jungle and three accused persons had committed rape with her. It has also been argued that it is settled that in case of conflict in between medical and oral evidence, the oral evidence is required to be relied upon instead of medical evidence. Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 9/20 According to Sri Mishra, in view of evidence of prosecutrix i.e. P.W.6, the case of gang rape has been established and as such, there is no need to interfere with the judgment of conviction and sentence.
10. Besides hearing learned counsel for the parties, we have minutely examined evidences, both oral and documentary. Fact remains that in the present case, only ocular witness is the victim herself, who was examined as P.W.6 and as such, it would be necessary to firstly examine the evidence of P.W.6.
11. P.W. 6/victim, in her evidence, has stated that occurrence had taken place on 1 st December, 2010 at 3:15 P.M., while she was going to attend tuition class of Sri Rajeshwar Pandey of Mohalla Patkauli. Thereafter, she stated that Arun Kumar tried to persuade her, then Pintu Kumar (appellant) arrived there and they tied her hands and also wrapped her mouth and forcibly put her on a motorcycle. She tried to raise alarm, but she failed to do that. Thereafter, she was carried to jungle. From all the side, there was jungle and at that place, Arun Kumar firstly committed rape with her, thereafter, Pintu Kumar (appellant) committed rape and then Anil Choudhary arrived there on bike and he too committed rape with her. She started crying. The accused persons thereafter left her in jungle Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 10/20 itself and threatened not to disclose this fact to anyone, otherwise, she would be shot down. By crying, she returned back to her house, however she did not disclose anything to anyone. On the next date, she was not well. On third day, at 8:00 in the morning, while she was going for reading, again aforesaid three accused persons tried to caught hold of her, however anyhow she fled away and then she explained about the occurrence of 1st December, 2010 also, which was committed by three accused persons, to her mother. She stated that while she was explaining to her mother, her mama (maternal uncle) was also present. In paragraph - 3 of her examination-in-chief, she stated that thereafter she along with her mama and mother went to police station and gave her statement. Darogaji recorded her statement and thereafter, it was read over to her and after finding it correct, she put her signature. She identified her signature as well as signature of her mother and her mama. She proved substituted F.I.R., which was marked as Ext. 1 and also signature of P.W. 4 and P.W. 1, which were marked as Ext. 1/1 and 1/2 respectively.
12. Before proceeding to examine as to what she had stated in her cross-examination, at this juncture, again it would be necessary to see as to what she had stated in her fardbeyan. Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 11/20 In her fardbeyan, in categorical term, she had stated that on 1 st December, 2010, she was raped by two accused persons, namely, Arun Kumar and this appellant Pintu Kumar. In the fardbeyan, she had not at all whispered as to whether she was raped by third accused also, but during the trial, she had developed a story, as if, she was raped by three accused persons. This circumstance certainly creates serious doubts on the evidence of prosecutrix i.e. P.W.6. In paragraph - 8 of her cross- examination, she stated that the police station was less than ½ km. from her house. After second occurrence, she went to police station. She stated that in reaching police station, it took about half an hour/45 minutes. After 2 to 4 minutes of her arrival in police station, Darogaji recorded her statement. However, in the fardbeyan, i.e. Ext.-1 on top, it has categorically been stated that fardbeyan was recorded at the door of the informant. Besides this, the informant herself in the fardbeyan had stated that she was giving fardbeyan to police officer at her door itself, however to the reasons best known to the prosecutrix, during her evidence, she developed a case, as if, fardbeyan was recorded in the police station. In paragraph-11 of her cross- examination, she stated that she was forced to sit on motorcycle near Rohtas High School and her hands & mouth were tied. She Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 12/20 further stated that near the said place i.e. Rohtas High School, there was one hotel and houses as well as betel shop. She further stated that adjacent to Rohtas High School, there is post- office and adjacent to post-office, there was Rohtas Police Station. The distance of Rohtas Police Station from the place of occurrence was about 60-70 feet. It is a peculiar case that though, as alleged the victim by force was kidnapped at a public place, during the evidence, prosecution has not produced any independent witness at least to corroborate the occurrence of kidnapping. In the case, all the relevant witnesses are close relatives i.e. three maternal uncle and one mother of the victim. In normal course, in such a situation, there was every possibility of noticing such occurrence, which had taken place at 3:15 PM by some passers-by, any shop-keeper/betel shop owner or any other one, but no independent witness has come forward to corroborate the evidence of kidnapping, which had taken place at a public place. In paragraph-14 of her cross-examination, she stated that at the place, where she was raped and before that she was laid down, there were stones and stone chips. Meaning thereby that she was raped at a place on which if force was exercised, there was every possibility of finding some injury or even scratches on her back portion of the body. This can be Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 13/20 examined while considering the evidence of P.W. 10 Dr. Priyanshu Mala, who had examined the victim. In her further cross-examination, she tried to explain that after the occurrence from her private part, there was profuse bleeding and she was having serious pain. In paragraph -23 of her cross-examination, she was shown a letter purported to be written by her to accused Arun Kumar that was said to be love letter, however same was marked for identification as 'X'. In paragraph-30, she was further given suggestion that no rape was committed with her. She was known to co-accused Arun Kumar since earlier and there was love affair. Since he refused to solemnize marriage due to different religion, he was made accused and the appellant was victimized due to the reason that he was friend of Arun Kumar and with appellant's family, old animosity was going on. However, this suggestion was denied by the victim.
13. P.W. 1 Imtiyaz, P.W. 2 Md. Kayum Khaleefa and P.W. 3 Nausad Khaleefa are own maternal uncle of the victim. They in their evidence have simply stated that they were informed by the mother of the victim i.e. P.W. 4 Shamima Khatun. P.W. 4 Shamima Khatun (mother of the victim) stated that regarding the occurrence, her daughter/victim P.W. 6 had explained. Meaning thereby that P.W. 4 was also hearsay Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 14/20 witness. Accordingly, for considering the case, the base of prosecution case was the evidence of P.W. 6.
14. We may also examine the evidence of Dr. Priyanshu Mala (P.W.10), who examined the victim. P.W. 10 on 03-12-2010 was posted as Medical Officer in Sadar Hospital, Sasaram and she examined the victim/P.W. 6 after taking her consent. At this juncture, it is necessary to incorporate her evidence from paragraph - 2 to paragraph - 7, which are as follows:
"(2) Detail of examination -
M I - Mole over left side of neck.
Mole over upper part of right arm.
L.M.P. - 15 days back.
Auxillary hair present Black in colour.
Pubic hairs present black in colour.
Breast developed.
(3) According to statement of girl incident happened on 1/12/10 after that she has changed her cloth she has not taken bath.
(4) On examination, there is no injury abnormal, stain or foreign particles seen on any part of her body including her private parts. Hymen ruptured old tear. Vagina admits one finger tightly.
(5) Vaginal swab taken and sent for microscopical examination to Pathologist Dr. Pandey B. K. Sahay Sadar Hospital, Sasaram.
Report received which is attached.
(6) Age determination is done by a Medical Board Members being Dr. Vinod Kumar, Dr. N.L. Chouhan under the Chairmanship of Dr. K.B.Singh D.S. Sadar Hospital Sasaram.
Report received which is attached.
Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 15/20 (7) Opinion - On the basis of clinical examination and report of vaginal swab examination, it is difficult to say whether she is raped or not.
According to the opinion of Medical Board she is about 16 to 17 yrs of age."
15. One examination of aforesaid evidence of P.W.10, it is very much clear that at the time of examination, the doctor had noticed that the private part was accepting only one finger, that too tightly. In her cross-examination in paragraph - 9, she stated that "if the girl (victim) is below 18 years and only one finger tightly enters into private part and if she is raped by three persons, certainly on private part, there would be injury." Non-finding of any injury certainly creates doubt on the evidence of prosecutrix. In paragraph-10 of her cross- examination, she further clarified that "if girl was laid on stone chips surface and raped, there was possibility of abrasion and rashes and also bleeding on the back side." In paragraph-11 of her cross-examination, she further clarified that "on examination of whole body, including back side, she did not notice any injury." Meaning thereby that the evidence of prosecutrix on the point of her being raped on a place having small stones and non-finding of any injury on back side as also considering the evidence of P.W. 10 regarding accepting one Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 16/20 finger tightly in the private part creates serious doubts on the evidence of victim (P.W. 6).
16. P.W. 9 Dr. Nand Lal Chouhan on 03-12-2010, was posted as Orthopedic Surgeon at Sadar Hospital, Sasaram and he was Member of the Medical Board, which was constituted for ascertaining the age of the victim, in his evidence, he stated that on examination, the Board opined that the age of the victim was between 16 and 17 years. However; the prosecutrix in her fardbeyan had disclosed her age as 15 years.
17. P.W. 8 Jitendra Kumar at the relevant time was posted as officer incharge of Rohtas Police Station and he simply stated that he had made endorsement on the formal F.I.R. and as per his direction, investigation was entrusted to Sri Krishan Kumar P.S.I., who was examined as P.W. 7.
18. P.W. 7 Sri Krishan Kumar, in his examination, has stated that on 03-12-2010, he was probationer sub-inspector and posted in Rohtas Police Station. On 03-12-2010 at 10:00 AM, he received information from the officer incharge that in village Patkhauliya, which was about 100-150 meters away from the police station, some girl was raped and he was asked to go there. Then he left the police station at 10:05 AM and at 10:15 AM, with armed force on a police vehicle, he reached the house Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 17/20 of the victim in Jalalabad and thereafter, he recorded fardbeyan of victim and started investigation. The fardbeyan was also signed by her mother Shamima Khatun (P.W.4) as witness to the fardbeyan. He in paragraph-2 reiterated that he had recorded re- statement also at the house of the victim itself and recorded statement of Shamima Khatun (P.W.4), Imtiyaz (P.W.1) and Md. Kayum Khaleefa (P.W.2). Thereafter, with victim, her mother and maternal uncle with fardbeyan, reached to the police station, where formal F.I.R. was drawn. Thereafter, he inspected the first place of occurrence, which was near Model Tuition Centre on the metal road. He in paragraph -4 described regarding the place of occurrence. After investigation, this witness was also contradicted with previous statement of victim, which can be reflected from paragraph-14 and 15 of cross- examination of P.W. 7, which indicates that many facts, which were stated by the victim during the trial, were never stated before the police either in her fardbeyan or statement recorded under Section 161 of the Cr.P.C. Subsequently, he submitted chargesheet. Surprisingly, through this witness, case diary was also got exhibited, which was marked as Ext. 2.
19. On examination of entire aforesaid evidence, the evidence of victim/P.W. 6 itself appears to be doubtful, since Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 18/20 there is serious development from her earlier version, which was made in her fardbeyan, to disclosure made by her during the trial. In fardbeyan, the victim had categorically disclosed that on 1st December, 2010, she was raped by only two persons, however during trial, she stated, as if, she was raped by three accused persons. The commission of rape by one additional person can not be considered as a minor ignorance of the victim. Had it been a case of commission of rape by three persons on the first day, primarily at the time of fardbeyan or in her re-statement, she would have categorically stated that she was raped by three persons on the first day itself. Besides this, in the evidence, she stated that she was raped by three persons on a rough surface, however no injury or scratches were found on her body or on her back portion. This creates also serious doubt on her evidence. Secondly, the reason for serious doubt on the prosecution case is that though it was case of the victim that she was raped by three accused persons, at the time of medical examination by P.W. 10, she noticed that her private part was accepting only one finger that too tightly. Had it been a case of rape by three persons, certainly there was every possibility of noticing such injury on private part of the victim itself. This fact has also been corroborated in the cross- Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 19/20 examination of P.W.10/ Dr. Priyanshu Mala, which we have indicated here-in-above. The evidence of other witnesses, since are hearsay and are based on information given by informant/victim herself, may not be considered of having much relevance. Since they can be termed to be hearsay witness, if the evidence of source of information i.e. prosecutrix/P.W. 6 itself appears to be doubtful, certainly there is no need to place much reliance on the evidence of witnesses, who had deposed that they were informed by the victim. Moreover, prosecution has not produced any independent witness at least on the point of kidnapping. It was the case of the prosecutrix that she was forcibly loaded on a motorcycle in a public place i.e. on a metal road near Rohtas High School, which was surrounded by number of houses as well as shops, there was every possibility of any of the independent witness to state regarding the occurrence, but to the reasons best known to the prosecution, none of the independent witness has come forward during the trial. There was only one independent witness, who was none else but teacher of the coaching institute where the victim used to go for study, was examined as P.W. 5, but he has not supported the prosecution case, and as such, he was declared as hostile witness.
Patna High Court CR. APP (DB) No.381 of 2013 dt.23-08-2018 20/20
20. Considering the entire facts and circumstances, as discussed hereinabove, we are of the opinion that prosecution has not been able to establish its case beyond all reasonable doubt and as such, by way of extending benefit of doubt, it is necessary to interfere with the judgment of conviction and sentence.
21. Accordingly, the judgment of conviction dated 03.04.2013 and order of sentence dated 06.04.2013 passed in Sessions Trial No. 301 of 2011 (arising out of Rohtas P.S. Case No. 169 of 2010) by Sri Sajal Mandilwar, learned Ist Additional Sessions Judge, Rohtas at Sasaram is hereby set aside and appeal is allowed.
22. Since the appellant is in custody and the judgment of conviction and sentence has already been set aside, he is, hereby, directed to be released forthwith, if not required in any other case.
(Rakesh Kumar, J.)
( Arvind Srivastava, J.)
Anay
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 30.08.2018
Transmission Date 30.08.2018