Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1708 OF 2009
SURYAKANT DADASAHEB BITALE … APPELLANT
VERSUS
DILIP BAJRANG KALE & ANR. … RESPONDENTS
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
This appeal is directed against the judgment and order dated
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18 October, 2007 passed by the High Court of Judicature at Bombay
in Criminal Revision Application No.321 of 2004. By the impugned
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judgment, the High Court set aside the judgment dated 29 May,
2004 passed by the Sessions Judge, Satara in Sessions Case No.4 of
2004 acquitting the appellant-accused for the offence punishable
under Section 498A and 302 of the Indian Penal Code and remanded
back the proceedings for consideration afresh to the Session
Court.
JUDGMENT
The factual matrix reveals that the deceased Archana married
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to the appellant-accused on 6 June, 2003. Satyanarayan Puja was
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performed on 8 June, 2003. As per family traditions, Archana
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returned to her father’s house on 9 June, 2003 and, thereafter,
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she went back to matrimonial home on 11 June, 2003.
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On 14 July, 2003 the deceased Archana sustained 95% burn
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injuries in her matrimonial house. Her husband, appellant-accused
was present in the house at the relevant point of time. She was
admitted in Civil Hospital, Satara, where the Special Executive
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Magistrate had recorded her dying declaration on 14 July, 2003
(first dying declaration).
4. The message of the burn injuries suffered by Archana was
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received by her maternal uncle on 15 July, 2003. He along with
his wife, went to see Archana and found that she was under medical
treatment in Civil Hospital at Satara.
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5. On 16 July, 2003, Special Executive Magistrate recorded
another dying declaration of Archana at Civil Hospital, Satara
(second dying declaration).
6. Dilip Bajrang Kale (in short Dilip), father of the deceased
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Archana, thereafter lodged an FIR on 16 July, 2003 with the
Pusegaon Police Station, District Satara against the appellant-
accused alleged that the accused had given mental and physical
harassment to Archana, since dowry demand was not fulfilled and
that, ultimately, Archana was made to suffer burn injuries.
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7. On 17 July, 2003 inquest panchnama on the body of the
deceased was carried at Civil Hospital, Satara and the dead body
was sent for postmortem. The postmortem report suggested that
JUDGMENT
death is caused due to 90% superficial and deep burn injuries.
8. The appellant-accused was arrested and initially proceeded for
the charges under Section 498A and 307 IPC. After the death of
Archana, he was charged for the offence punishable under Section
302 and 498A IPC.
9. After investigation, the case was committed to the Sessions
Court at Satara. The prosecution produced a number of witnesses
and documentary evidence.
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10. The Sessions Judge tried the accused for the offences
punishable under Section 302 and 498A IPC and after recording the
evidence and appreciating submissions made by the parties
acquitted the appellant-accused of the offences alleged against
him.
11. Being aggrieved by the aforesaid order of acquittal dated
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29 May, 2004 passed by the Sessions Judge, the complainant Dilip,
father of the deceased invoked revisional jurisdiction of the High
Court under Section 397 Cr. P.C. to challenge the legality and
validity of the order of acquittal. The High Court under
revisional jurisdiction while accepted that appreciation of
evidence is not within the jurisdiction of the revisional court,
re-appreciated the dying declaration and observed as follows:
“ 23. Having taken survey of the law regarding dying
declaration and value which is to be attached to it,
now let me turn to the dying declarations which are
available on record.
24. The deceased had stated in her first dying
declaration dated 14.7.2003 that on 4.7.2003 i.e. on
the date of incident at about 3.30 p.m. while
cooking in the kitchen on gas stove fire caught to
the shore of her saree which she tried to
extinguish, and, ultimately, suffered injuries. That
her husband, who was in the next room brought a bed
sheet and bad cover to extinguish fire. That he had
also suffered burn injuries.
JUDGMENT
25. In the second dying declaration recorded on
16.7.2003, Archana had stated that first dying
declaration was given by her under pressure and she
went on to say that she having refused to have the
sexual intercourse on second occasion her husband
(accused) got annoyed and in the hit of anger poured
kerosene on her person and set her on fire using
matchstick. That her husband did not try to
extinguish fire.
26. With the aforesaid two dying declarations on
record, it was expected on the part of the learned
Sessions Judge to appreciate both dying declarations
and to find out which was reliable. It was open for
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him to appreciate and to accept either of the dying
declarations or to reject both. But it was not open
for him not to appreciate any of the dying
declarations and exclude and/or omit or to overlook
this vital evidence from consideration.
27. The spot panchnama shows that gas cylinder
was empty; whereas, the report of Chemical Analyser
shows that residues of kerosene were detected on the
clothes which were seized including those of the
accused and the deceased. The earth collected from
the kitchen had also trecess of the kerosene and
that her husband (accused) had also suffered burn
injuries.”
In view of such observation, the High Court remitted the
matter back to the Session Court for consideration afresh.
12. Learned counsel for the appellant assailed the judgment on the
ground that in absence of appeal against the acquittal under
Section 378 Cr.P.C., it was not open to the High Court to re-
appreciate the evidence like dying declarations under Section 397
Cr.P.C. It was further contended that the Sessions Judge had
extensively appreciated the dying declarations of the deceased and
thereafter had come to the conclusion that the appellant is not
guilty of the offence charged against him. Where two views are
possible, the High Court should not have interfered with the order
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of the acquittal.
To appreciate the arguments, it is desirable to refer the two
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dying declarations made by the deceased Archana and recorded by
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the Special Executive Magistrate, one on 14 July, 2003 and the
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other on 16 July, 2003.
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Dying declaration dated 14 July, 2003 is in the form of
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statement and reads as follows:
“Statement
Dated: 14.7.2003
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I, Archana Suryakant Bitale, age 22, R/o Garwadi
Taluka Khatav, District Satara.
On being asked I hereby give my statement in Ward
No.27 that I have been residing at the aforesaid
place alongwith my father-in-law Tai Dadaso Bitale.
My husband Suryakant Dadaso Bitale is working as
Mothadi Labourer in Nhava Sheva Project Mumbai and
my marriage took place as per my wish and with the
consent of people from parent’s side. My marriage
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took place on 6 June, 2003. Since my marriage I
have been residing at my husband’s place. I have
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studied upto 12 and my marriage took place at
Kalewadi i.e. my parent’s place.
Today i.e. 14.7.2003 around 3.30 I was cooking on
the gas stove and my husband was sleeping in the
other room. While cooking my saree accidentally fell
on the flame of the gas and caught fire. I tried to
extinguish but my saree caught fire and since I got
burnt I came out of the kitchen shouting. My husband
and neighbours extinguished the fire with bed sheet
and bed cover. My husband also suffered burn injury
while trying to extinguish the fire. I got burn
injuries on both the legs, chest, back, abdomen,
both legs and neck and it is paining. I was taken to
the primary health centre Diskal in a jeep from our
village and from there I was taken to the Civil
Hospital, Satara. I am being treated here.
Therefore on 14.7.2003 around 3.30 my husband had
to go to Mumbai and while I was cooking around 3.30
my saree caught fire ad I got burnt. At the time of
incident me and my husband were at home and my
father-in-law had gone to the field and nobody has
set me on fire. My saree fell on the gas stove and
therefore, I got burnt I do not have any complaint
against anyone.
JUDGMENT
The aforesaid statement is written down correctly
as stated by me and hereby sighing the same.
The aforesaid statement started at 16.00 and
completed at 6.30.
14.7.2003
Sd/-
A.S.I.
Hospital Duty’
Satara City Police Hospital.”
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On the other hand dying declaration dated 16 July, 2003 is
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recorded in the format which reads as follows:
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“DYING DECLARATION DATED 16.7.2003
I, Sou, Archana Suryakant Bitale, again state and
answer the following questions:
1. Full Name : Sou. Archana Suryakant
2. Age : 22 years
3. Occupation : Household work
4. Residing at : Garvadi Taluka Khatav
5.
Reason of : My husband Suryakant Dada
Burning Saheb Bitale poured
Kerosene on my person and
lit me on fire after I
disallowed him to have
intercourse on second
occasion.
6. Quarrel with : There was no quarrel with
Whom anybody in the house.
7. Did husband or: No
in-laws make
any demand for
dowry
8. How many years : Marriage took place on
have lapsed 6,6,2003.
After marriage?
9. Is this second: Nobody asked me to give
Statement being the second statement.
Recorded at the
Behest of
anybody?
JUDGMENT
10.Why did you : Statement dated 14.7.2003
not tell the was recorded under
information pressure and, therefore,
given in the I could not state.
earlier However, since my agony
statement has increased, I am
recorded on making this fresh
14.7.2003 ? statement.
My husband Suryakant Dada Saheb Bitale poured
kerosene from the kerosene cane in the house and
set me on fire by lighting matchstick. At that
time, there was nobody else in my house. After I
was lit on fire, my husband was lying on the bed.
After I was set on fire, I started shouting
loudly. However, somebody from the neighbouring
house whose name I do not know came to douse the
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fire. However, he saw my husband and returned back
without doing anything. My husband did not try to
douse the fire. On the day of the incident my
husband and other persons in the village admitted
me to Civil Hospital at 3.30 p.m. It is my
accusation that my husband set me on fire. There
is no allegation by me against my mother-in-law,
father-in-law, brother-in-law in our house and I
do not have any complaint against them. My husband
should be severely punished. Neither the Police
Officer nor any of my relatives were present while
recording my statement nor am I making this
statement under pressure of anybody. Recording of
my statement started at 12.40 in the afternoon and
continued till 1.10 p.m. on 16.7.2003. The
statement was read over to me and the contents
thereof are correct.
Accordingly, the statement is recorded.
Dated: 16.7.2003.
In the presence of
Sd/-
Special Executive Magistrate,
Satara
Thumb Impression of
Archana Suryakant Bitale.”
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16. From the judgment dated 29 May, 2004 passed by the Sessions
Judge in Sessions Case No.4 of 2004, what we find is that the
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Sessions Judge not only dealt with dying declaration dated 14
JUDGMENT
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July, 2003 and 16 July, 2003 but also noticed that the deceased
Archana made a declaration to her father, complainant, Dilip (PW-
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5) on 15 July, 2003 i.e. a day prior to the lodging of FIR on 16
July, 2003.
17. While dealing with so, the Sessions Judge observed as follows:
“ 10……………………………….Therefore, what remains for scrutiny
is dying declaration of Archana recorded by Pusalkar
on 16.7.2003.
11. Before dealing with dying declaration
recorded by Pusalkar, it will be just and proper to
see what Dilip has stated in his evidence. According
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to him after coming in Civil Hospital at Satara on
15.7.2003 he is not asking Archana as to how she
sustained burn injuries. Archana on her own accord
disclose him that accused was asking for sexual
intercourse second time on 14.7.2003 and when she
refused for it, he set her on fire. Without knowing
as to what statement she made previously, it is his
say that Archana on her own accord expressed that
accused had forced her to make statement about burn
injuries sustained by her accidentally that is why
this witness had been to Police Station on the very
day to file application. He requested police to
record statement of Archana again. He is not filing
any complaint with police on said day against
accused. Complaint is filed by him on 16.7.2003 it
was taken to station diary at about 1.00 noon or
about. Whereas dying declaration recorded by
Pusalkar in between 12.40 to 1.00 noon. It is denied
by Dilip that he was present when Pusalkar recorded
dying declaration. Statement of Dilip is recorded by
police on 18.7.2003. Dilip denies that he made
statement before police about his presence at the
time when Pusalkar recorded dying declaration on
16.7.2003. Statement was pointed out by way of
contradiction (Exh.36) wherein it is stated by this
witness that as per his request statement of Archana
was re-recorded on 16.7.2003 and she made such
statement in his presence. It means that at the time
of filing complaint he was aware of the fact as to
what Archana disclosed before Pusalkar in her
subsequent dying declaration. In complaint filed by
Dilip Exh.24 on 16.7.2003 it is no where stated that
accused intended to have sexual intercourse for
second time on 14.7.2003 and when she refused for
it, he set her on fire. In complaint it is stated by
Dilip that Archana herself set on fire due to ill-
treatment to her. Thus prosecution itself is coming
with two-fold cause about sustaining burn by Archana
namely an attempt to commit suicide by Archana by
setting fire to herself, at the same time causing
burn injuries to her by her husband for the reasons
stated above. If at all Archana would not have
stated to her father as to how she sustained bur
injuries, one would not have found contents in
F.I.R. that in an attempt to commit suicide, Archana
sustained burn injuries. Attempt is made by Dilip
Kale to explain about state of his mind, when
he filed complaint with police on 16.7.2003. One
cannot attach much importance explanation at belated
stage. Prosecution itself is coming with the case
that Dilip came to know on 14.7.2003 itself from
Hanmant that accused set her on fire. Then on next
day he is coming to Hospital where according to him
Archana disclosed him that accused set her on fire.
He is insisting police to re-record dying
declaration of Archana on 15.7.2003 itself. Under
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these circumstances omission in complaint by Dilip
of homicidal death of Archana amounts to making
improvement. The contradictory version in complaint
is that she sustained burn injuries, in an attempt
to commit suicide, is quire inconsistent facts.
Prosecution thus itself is coming with two
possibilities namely suicidal death by deceased
Archana, at the same her homicidal death. Question
is to whom benefit of such inconsistency will go.
Certainly it will go in favour of accused and not
prosecution. Now let us see dying declaration
recorded by Pulsakar.
12. Pulasakar was aware of the fact that dying
declaration was already recorded by his colleague on
14.7.2003. Therefore he did not read earlier dying
declaration of Archana. He came to know from his
colleague Mirza that Archana in her statement stated
that she sustained burn injuries when her saree came
into contact with gas-burshen. According to him he
did not put question to Archana as to what statement
she made previously. When no question was put to
Archana about it, then how question No.9 finds place
in D.D. recorded by Pusalka. There is specific
question to her as to why she did not state about
act of accused when her statement was recorded on
14.7.2003 when question was not put to Archana in
suggestive form naturally it was expected to answer
that due to some reason she made statement. Then
answer to it is that her husband and his cousin
brother pressurised her to make statement on
14.7.2003. Now the statement of Archana recorded by
Pusalka is mostly in question and answer form up to
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9 question. Questions are objective in nature.
Question No.5 is put as to whether there was any
quarrel between her and other person. It means that
Pusalkar pre-supposes that there was quarrel. Answer
to this question no doubt is that there was no any
quarrel as suggested to Archana. Now question No.8
is as at whose instance she was making this
statement. Now in fact this question does not relate
to cause of death of a person, but some sort of
enquiry with deceased in form of suggestive
question. Answer to it which is brought on record is
that Archana had not made statement at instance of
any other person. I do not understand as to why
where was doubt in mind of Pusalkar to put such
question. At this stage at the cost of repetition,
I may point out here about an attempt made by some
person to extinguish fire. He is Hanmant who is
coming with such case. He states before us that
Archana prayed him to save her from fire. If at all
Hanmant would have present there, then Archana would
have disclosed his name. In dying declaration what
is stated is that one person came but seeing accused
he went away. It is not say of Hanmant that in
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Hospital Archana disclosed him that accused set her
on fire, when she refused to have sexual intercourse
for second time. It was specifically put to him
whether he asked Dilip to approach police to re-
record D.D. Said statement is made by this witness
before police, but he denies that he made such
statement and contradictory version is brought on
record with held of I.O. examined in this case. It
is stated by this witness that he asked Dilip to
inform police to record statement of Archana again.
It is not stated by Pusalkar in his examination-in-
chief that father of Archana was present when he
recorded D.D. However, we find from D.D. that when
Pusalkar recorded D.D. no relative of Archana was
present. All these facts clearly suggest that D.D.
recorded on 16.7.2003 by Pusalkar must be effect of
prompting to her. Questions are also put by Pusalka
to Archana in such way so as to expect answer “Yes”
or “No”. There is also doubt as t whether Archana
really must be in position to make statement.
13. Pusalkar states in para 4 of his deposition
that entire body of Archana was covered with net. He
states that no I.V. was on when he saw Archana. He
then states that before giving opinion by Dr. about
condition of Archana, Dr. read pulse of Archana. He
also checked her chest with stethoscope. Dr.
Nalawade states in his deposition at Exh.31 that he
did not see pulse of Archana. He also did not see
her B.P. He then states that I.V. was on to Archana
when Pusalkar recorded her statement in his
presence. However, Dr. Nalawade thus took the matter
as routine. It appears to be somewhat peremptory
approach, when D.D.was recorded by Pusalkar. Shri
B.D. Kadam, learned Adv. for defence pointed out
observations in Uka Ram vs. State of Rajasthan
reported in 2001 (2) B. Cr.C. (SCC) 492 wherein it
is observed as below:
JUDGMENT
“It has always to be kept in mind that
though a dying declaration is entitled to
great weight, yet it is worth-while to note
that as the maker of the statement is not
subjected to cross-examination, it is
essential for the Court to insist that
dying declaration should be of such nature
as to inspire full confidence of the Court
in its correctness. The Court is observed
to rule out the possibility of the
statement being the result of either
tutoring, prompting, or vindictive or
product of imagination. Before relying upon
a dying declaration, the Court should be
satisfied that the deceased was a fit state
of mine to make the statement. Once the
Court is satisfied that the dying
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declaration was true, voluntary and not
influenced by any extraneous consideration,
it can base its conviction without any
further corroboration as rule requiring
corroboration is not a rule of law but only
a rule of prudence.”
The scope of revisional jurisdiction was considered by this
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Court in and
K. Chinnaswamy vs. State of A.P., AIR 1962 SC 1788
held as follows:
“ Where the appeal Court wrongly, ruled out evidence
which was admissible, the High Court would be
justified in interfering with the order of acquittal
in revision, so that the evidence may be re-apprised
after taking into account the evidence which was
wrongly ruled out as inadmissible. But the High
Court should continue itself only to the
admissibility of the evidence and should not go
further and appraise the evidence also.”
In
19. Akalu Ahir & Others vs. Ramdeo Ram, AIR 1973 SC
2145=(1973) SCC 2 583, this Court held that where the material
evidence have been over looked by the Trial Court or Sessions
Court, the High Court in revisional jurisdiction can interfere
with the finding of acquittal.
20. In the present case the Session Court has not ruled out any
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evidence which was admissible. Both the dying declarations were
considered in proper prospect. The material evidence has not been
overlooked by the Sessions Court, as apparent from the discussions
made by Sessions Judge and quoted above. In these circumstances,
the High Court was not justified in interfering with the order of
acquittal in a revision.
In this
21. State of Punjab vs. Parveen Kumar, (2005) 9 SCC 769,
Court noticed different versions of incident in three several
dying declarations which created doubt about their truthfulness.
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One dying declaration was made by the deceased before the uncle,
second before the Executive Magistrate and third before the SI,
Police. This Court having noticed the inconsistency with each
other, since versions disclosed in those dying declarations were
quite different, affirmed the order of acquittal recorded by the
High Court.
In the present case, in fact, there are three dying
22.
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declarations. One was made before the Executive Magistrate on 14
July, 2003, the second alleged to have been made by the deceased
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Archana before her father, Dilip (PW-5)-complainant on 15 July,
2003 and the third dying declaration was made in a format before
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the Executive Magistrate on 16 July, 2003. The complainant, Dilip
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(PW-5), father of the deceased in his FIR dated 16 July, 2003 had
not stated that her daughter Archana alleged that the accused was
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asking for intercourse second time on 14 July, 2003, and when she
refused the accused sprinkled kerosene on her and put her on fire.
The prosecution could not explain as to why the second dying
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declaration was taken on 16 July, 2003, though in the said
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declaration the deceased Archana had stated that she had not
called for the second dying declaration. All this aspect has been
discussed by the Sessions Judge who acquitted the appellant.
23. In the present case, the view taken by the Sessions Judge is
neither unreasonable nor perverse. It is possible reasonable view
based on the evidence on record. In the circumstances, the High
Court was not justified in setting aside the order of acquittal.
24. For the reasons aforesaid, we set aside the impugned judgment
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and order dated 18 October, 2007 passed in Criminal Revision
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Application No. 321 of 2004 and affirm the order passed by the
Sessions Court. The appeal is allowed.
………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J.
(R.K. AGRAWAL)
NEW DELHI,
JULY 2, 2014.
JUDGMENT
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