Delhi District Court
State vs Mr.Rajiv Dahiya -:: Page 1 Of 16 ::- on 16 March, 2017
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
SPECIAL JUDGE (NDPS) NORTH WEST,
ADDITIONAL SESSIONS JUDGE, ROHINI COURTS, DELHI
Sessions Case Number : 53590/2016.
State
versus
Mr.Rajiv Dahiya
Son of Mr. Sukhbir Singh
Resident of House No. 95, Gali No. 15,
Swatantra Nagar, Narela, Delhi.
First Information Report Number : 434/2013.
Police Station : Kanjhawala.
Under sections 302/365/364 A/201/34 of the
Indian Penal Code and under sections 25/27 Arms Act.
Date of filing of the charge sheet before : 13.09.2014.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 22.09.2014.
Arguments concluded on : 16.03.2017.
Date of judgment : 16.03.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Accused Mr. Rajiv Dahiya has been produced from
judicial custody.
Mr. Dharamvir Sharma, counsel for accused
Mr.Rajiv Dahiya.
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New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013
Police Station : Kanjhawala
Under sections 302/365/364 A/201/34 of the Indian Penal Code
and under sections 25/27 Arms Act.
State versus Mr.Rajiv Dahiya -:: Page 1 of 16 ::-
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JUDGMENT
1. Mr. Rajiv Dahiya, the accused, has been charge sheeted by Police Station Kanjhawala for the offences under sections 302/365/364A/201/34 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 25/27 of the Arms Act.
2. It is important to mention here that vide judgment dated 08.12.2016, co-accused Mr. Rajiv @ Diwan has already been acquitted for the offences under section 364/365 of the IPC read with section 34 of the IPC; under section 302 read with section 34 of the IPC; and section 201/34 of the IPC.
3. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 13.09.2014 and after its committal, the case was assigned to the learned predecessor of this Court for 22.09.2014.
4. After hearing arguments, charge for offences under section 364 A/365 IPC read with section 34 of the IPC, under section 302 IPC read with section 34 of IPC and under section 201/34 IPC was framed against accused Mr.Rajiv Dhaiya vide order dated 16.02.2015 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
5. Accused Mr.Rajiv Dahiya had absconded and was declared a Proclaimed Offender vide order dated 13.07.2015 of the learned New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
State versus Mr.Rajiv Dahiya -:: Page 2 of 16 ::-
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predecessor of this Court. Thereafter, he was arrested and produced in the Court on 05.10.2016.
6. The allegations against accused Mr.Rajiv Dahiya are that on 19.12.2013 at about 07:00 pm from outside house no.50, Village Karala, Delhi, accused Mr.Rajiv Dahiya along with Mr.Rajiv @ Diwan (since acquitted), in furtherance of their common intention, abducted Mr.Arvind Kumar son of Mr.Bijender with intention to secretly and wrongfully confine Mr.Arvind and for the purposes of ransom and after abducting Mr.Arvind Kumar, they took him to the office of Mr.Ashok son of Mr. Ishwar Chand at Sonipat and thereafter, again took him in their vehicle and also demanded ransom from the father of deceased Mr.Arvind telephonically by making a call from telephone n umber 8512098819 on the mobile number 837393595 belonging to Mr.Bijender. On the night of 19.12.2013, accused Mr. Rajiv Dahiya and Mr. Rajiv @ Diwan (since acquitted) committed murder of Mr.Arvind Kumar by shooting him with as many as six bullets on various parts of his body, intending to kill him, on Delhi-Chandigarh highway leading towards Panipat from Gannaur in Haryana near Neelkanth Dhaba and both of them committed the murder of Mr.Arvind. After committing the crime, they caused the evidence of the commission of that crime to disappear with intention of screening themselves from legal punishment and disposed of the fire arm with the deceased was shot and other evidences.
New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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7. In order to prove its case, the prosecution has examined as many as 04 witnesses i.e. Ms. Meena wife of deceased Mr.Arvind Kumar, as PW1; Mr. Avinash, brother of deceased Mr.Arvind Kumar as PW2;
Mr.Mukesh, property dealer, as PW3; and Mr. Ashok, property dealer as PW4.
8. Ms. Meena (PW1), widow of the deceased, has deposed that on 19.12.2013, in the evening hours, she was present in her house. At that time, her parents-in-law and her husband Mr. Arvind Kumar were also present in the house. At about 07:00 - 07:30 pm, one person, namely, Rajiv Dahiya came to her house. She knows Rajiv Dahiya as he is friend of her husband. She can identify accused Rajiv Dahiya, if shown to her. She has seen the accused, who is present in the court today, and she says that she is not the same man who she know as Rajiv Dahiya, who has committed the offence against her husband Mr. Arvind. The actual culprit Rajiv Dahiya was dark complexioned and had marks on his face. He was about 5 feet 4-5 inches tall and was of normal built. She again says that the accused, who has been brought in custody is not the same man, who she knows as Rajiv Dahiya and who is the culprit in the present case. Actual culprit Rajiv Dahiya had tea in her house on that day. After staying for about 15-20 minutes, culprit Rajiv Dahiya along with her husband left the house. Her husband did not return to the house. They waited him for sometime and then searched him at nearby places. However, they could not trace her husband. Thereafter, the police was informed. Police reached her New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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house after sometime. She informed the police that culprit Rajiv Dahiya took her husband but her husband did not return. Her statement (Ex.PW6/A) was recorded by the police. After about six months of lodging the FIR, she came to know about death of her husband. She does not know as to why culprit Rajiv Dahiya took her husband and why her husband was murdered. She does not want to say anything else.
9. As Ms.Meena (PW1) was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her. She has been cross examined at length but nothing material for the prosecution has come forth. She has denied the contents of her statement under section 161 of the Cr.P.C. She has again deposed that she has seen the person produced from judicial custody and she says that he is not the same person namely Rajiv Dahiya who is known to her as friend of her husband Arvind and who had abducted her husband on 19.12.2013. She has denied the suggestion that Rajiv Dahiya, who has been produced from judicial custody in the Court and shown to her specifically is the same man with whom Mr. Arvind, her husband, had monetary transactions and with whom her husband had gone on 19.12.2013. She has denied the suggestion that Rajiv Dahiya, who has been produced from judicial custody in the Court and shown to her specifically is the same man who had committed murder of her husband Arvind Kumar after abducting him on 19.12.2013. She does not know the father's name and the address of Rajiv Dahiya who was friend of New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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her husband. She did not come to know that Rajiv Dahiya used to reside in Swatantra Nagar, Delhi. She has denied the suggestion that accused Rajiv Dahiya, present in the Court today is the same person who had come to her house on 19.12.2013 and took her husband with him. She denied the suggestion that accused Rajiv Dahiya is the same person who had committed murder of her husband after abducting him on 19.12.2013. She has denied the suggestion that she is not identifying accused Rajiv Dahiya due to fear.
10.In her cross examination by accused Mr.Rajiv Dahiya, Ms.Meena (PW1) has admitted that the man produced from custody in the present case is not the same Rajiv Dahiya whom she knows.
11.Mr.Avinash Kumar (PW2) has also deposed that he has seen the accused who is present in the court today and he say that he is not the same man who he knows as Rajiv Dahiya, who has committed the offence against his brother Mr. Arvind. The actual accused Rajiv Dahiya was dark complexioned and had marks on his face.
He was about 5 feet 4-5 inches tall and was of normal built. He again says that the accused, who has been brought in custody, is not the same man, who he knows as Rajiv Dahiya and who is the culprit in the present case. He also came to know that Rajiv Dahiya, the actual culprit, who is not present in the court, took his brother Arvind Kumar and since then, his brother did not return to the house. They waited for his brother but, he did not return. Then, his New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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father made PCR call. Police reached their house after some time. On the next day, when his brother did not return so, FIR was got lodged in Police station. Police officials again visited their house. They did not get any clue/information about his brother Mr. Arvind. On 20.12.2013, he came to know that his father received a telephone call of Rajiv Dahiya and at that time police officials were also present in the house. He does not know about the conversation took place between his father and Rajiv Dahiya on 20-12-2013. After about 06 months of lodging the FIR, a phone call from Special Staff, Avantika, Rohini was received. He along with his cousins and mother went to the office of Special Staff. Police had shown the photographs of dead body of a person and asked them as to whether they can identify the dead body in the photographs. After seeing the photographs, he informed the police that the dead body of the person, reflected in the photographs, was of his brother Arvind Kumar. They were informed by the police that after about 1-2 days of the incident, the dead body was recovered in Ganour, Distt. Sonepat, Haryana by the police officials of PS Ganour. He along with his elder brother-Ashish Kumar went to PS Ganour, Sonepat. The police officials had shown them one bone by stating that this bone was kept by them after cremating the dead body of his brother. His statement was recorded in Police station Ganour regarding identification of dead body of his brother Mr.Arvind in the photographs (Ex.PW23/A). After some days of the incident dated 19.12.2013, he came to know from his father that there was some financial dispute between his brother Arvind Kumar and New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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culprit Rajiv Dahiya. In the month of May or June, 2013, culprit Rajiv Dahiya asked his brother Arvind to accompany him to Dehradun as he wanted him to show some plot. Then, he along with his brother Arvind and culprit Rajiv Dahiya left Delhi for Dehradun. When they were returning from Dehradun, culprit Rajiv Dahiya took them to some place near Mujaffar Nagar, UP. Thereafter, culprit Rajiv Dahiya left that place. There were some unwanted type of people. It was an open field. Those persons gave beatings to him as well as his brother Arvind Kumar. They were saying that his brother Arvind Kumar had to give some money to culprit Rajiv Dahiya. After some time, culprit Rajiv Dahiya also reached in the fields. Culprit Rajiv Dahiya took his brother from that place and he was also taken by culprit Rajiv Dahiya after two days. After coming to his house, he came to know that his father had given some ransom money to a culprit Rajiv Dahiya. His father had given approximately rupees four lakhs to culprit Rajiv Dahiya. He stated that the police did not record his statement.
12.As Mr.Avinash Kumar (PW2) was hostile and had resiled from his earlier statement, the Additional Public Prosecutor has cross-
examined him. He has admitted that he had deposed before this Court on 01.10.2015 as PW7 during the trial of accused Rajiv @ Diwan and has signed his deposition. He has admitted that on 01.10.2015, he had deposed that his father informed him that culprit Rajiv Dahiya made a telephone call to him and stated that Arvind was in his custody and he was demanding money for his New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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release. Today, during his examination-in-chief, he has deposed that he is not aware about the conversation took place between his father and culprit Rajiv Dahiya on 20.12.2013 as he could not understand the question properly. Now, he says that he is aware about the conversation as it was informed by his father regarding demanding of money by culprit Rajiv Dahiya for release of Arvind. He has admitted his statement (Ex.PW7/A) made by him before the police as well as the five photographs (Ex.PW7/B1 to B5) of Mr. Arvind, my brother. He had seen the person produced from judicial custody and he says that he is not the same person, namely, Rajiv Dahiya, who is known to him as friend of his brother Arvind and who had abducted his brother on 19.12.2013. He has denied the suggestion that Rajiv Dahiya, who has been produced from Judicial custody in the Court and shown to him specifically is the same man with whom Mr. Arvind, his brother had monetary transactions and with whom his brother had gone on 19.12.2013. He has denied the suggestion that Rajiv Dahiya, who has been produced from judicial custody in the Court and shown to him specifically is the same man, who in the month of June, 2013 took him and his brother Arvind Kumar to Mujaffar Nagar, U.P. on the pretext of showing plot in the Dehradun and then confined him and his brother in the fields and demanded money from Arvind Kumar. He has denied that Rajiv Dahiya, who has been produced from judicial custody in the Court and shown to him specifically is the same man, who had committed murder of his brother Arvind Kumar after abducting him on 19.12.2013. He does not know the New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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father's name and the address of Rajiv Dahiya who was friend of his brother. He has denied his statement dated 14.06.2014 (Mark P-2/A). He has denied the suggestion that accused Rajiv Dahiya, present in the Court today, is the same person who was having monetary transactions with his brother Arvind. He has denied the suggestion that accused Rajiv Dahiya is the same person who had committed murder of his brother after abducting on 19.12.2013. He has denied the suggestion that he is not identifying accused Rajiv Dahiya due to fear. He denied the suggestion that he is deposing falsely.
13.Mr.Avinash Kumar (PW2) has also been cross examined by the accused and deposed that the man produced from custody in the present case is not the same Rajiv Dahiya, whom he knows.
14.Similarly Mr. Mukesh (PW3) and Mr.Ashok Sharma (PW4) have also not identified accused Rajiv Dahiya as the culprit. They have been cross examined by the Additional Public Prosecutor for the State but nothing material for the prosecution has come forth.
15.All the witnesses PWs 1 to 4, have not deposed an iota of evidence of accused Rajiv Dahiya committing the offences of abduction, demand of ransom, murder of Mr.Arvind Kumar and destruction of evidence in furtherance of his common intention with co-accused Rajiv @ Diwan (since acquitted). They have not identified the accused Rajiv Dahiya as the culprit, who had abducted deceased New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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Mr.Arvind Kumar and demanded ransom for his release, killed him and destroyed the evidence. They have, infact, deposed that the man produced in the Court is not the same Rajiv Dahiya who is the culprit and had abducted and killed the deceased.They have deposed that the man produced from the custody in the present case is not the same Rajiv Dahiya, whom they know.
16.In the circumstances, as the complainant and other witnesses, who are the star witnesses, have turned hostile and have not supported the prosecution case and more importantly have not assigned any criminal role to the accused and have not deposed anything incriminating against him, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature.
The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the complainant as well as eye witness, the most material witness, have not supported the prosecution case and are hostile.
17.The statement under section 313 of the Cr.P.C of the accused Mr.Rajiv Dahiya is dispensed with as there is nothing incriminating against him when the complainant as well as eye witness are hostile and nothing material has come forth in their cross examination by the prosecution.
New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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18.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.
19.It appears from the evidence of Ms.Meena (PW1), widow of the deceased, Mr.Avinash Kumar (PW2), Mr. Mukesh (PW3) and Mr.Ashok Sharma (PW4) that a wrong man with the same name Mr.Rajiv Dahiya has been arrested in the present case and the actual culprit Rajiv Dahiya has not been apprehended. Accused Rajiv Dahiya who has been produced in the Court is not the culprit.
20.In the light of the aforesaid nature of deposition of Ms.Meena (PW1), widow of the deceased, Mr.Avinash Kumar (PW2), Mr. Mukesh (PW3) and Mr.Ashok Sharma (PW4) who happen to be the material witnesses, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the witnesses have retracted from their earlier statements and turned hostile. Nothing material for the prosecution has come forth in their cross examination on behalf of the State. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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21.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
22.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
23.If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
24.Consequently, no inference can be drawn that accused Mr. Rajiv Dahiya, produced from judicial custody in this case, had abducted Arvind Kumar, demanded ransom for his release, committed murder of Mr. Arvind Kumar and destroyed the evidence.
New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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25.Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the witnesses have themselves not deposed anything incriminating against accused Rajiv Dahiya. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
26.Consequently, no inference can be drawn that the accused Mr.Rajiv Dahiya is guilty of the charged offence under sections 364A/365/302/201 read with section 34 of the IPC. There is no material on record to show that on 19.12.2013 at about 7.00 pm from outside house no.50, Village Karala, Delhi, accused Mr.Rajiv Dahiya along with Mr.Rajiv @ Diwan (acquitted), in furtherance of their common intention, abducted Mr.Arvind Kumar son of Mr.Bijender with intention to secretly and wrongfully confine Mr.Arvind and for the purposes of ransom and after abducting Mr.Arvind Kumar, they took him to the office of Mr.Ashok son of Mr. Ishwar Chand at Sonipat and thereafter, again took him in their vehicle and also demanded ransom from father of deceased Mr.Arvind telephonically by making a call from telephone number 8512098819 on the mobile number 837393595 belonging to Mr.Bijender. On the night of 19.12.2013, accused Mr. Rajiv Dahiya and Mr. Rajiv @ Diwan (acquitted) committed murder of Mr.Arvind Kumar by shooting him with as many as six bullets on various parts of his body, intending to kill him, on Delhi New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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Chandigarh highway leading towards Panipat from Gannaur in Haryana near Neelkanth Dhaba and both of them committed the murder of Mr.Arvind. After committing the crime, caused the evidence of the commission of that crime to disappear with intention of screening themselves from legal punishment and disposed of the fire arm with the deceased was shot and other evidences.
27.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences against accused Mr.Rajiv Dahiya for the offences of abduction, demand of ransom, murder and destruction of evidence in furtherance of his common intention with co-accused Mr.Rajiv @ Diwan (since acquitted). The evidence of the witnesses makes it highly improbable that such incidents ever took place. The witnesses, have not deposed an iota of evidence that accused Mr.Rajiv Dahiya has committed the offences of abduction of deceased Mr.Arvind Kumar, demand of ransom for his release, murder of deceased and destruction of evidence, in furtherance of his common intention with co-accused Mr.Rajiv @ Diwan (since acquitted).
28.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 the accused Mr. Rajiv Dahiya for the offence under sections 364A/365/302/201 read with section 34 of New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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the IPC.
29.Consequently, accused Mr.Rajiv Dahiya is hereby acquitted of the charges for the offences of abduction, demand of ransom, murder and destruction of evidence, in furtherance of his common intention with Mr. Rajiv @ Diwan (since acquitted) under sections 364A/365 of the IPC read with section 34 of the IPC; under section 302 read with section 34 of the IPC; and section 201/34 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
30.Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
31.As accused Mr. Rajiv Dahiya is in judicial custody, he be released from custody and be set at liberty, if not required in any other case.
32.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 16th day of March, 2017. Special Judge (NDPS) North-West, Additional Sessions Judge, Rohini Courts, Delhi.
********************************************************** New Sessions Case Number : 53590/2016.
First Information Report Number : 434/2013 Police Station : Kanjhawala Under sections 302/365/364 A/201/34 of the Indian Penal Code and under sections 25/27 Arms Act.
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