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Friday, January 9, 2015

CRIMINAL APPEAL NO. 242 OF 2012 B.D. Khunte …Appellant Versus Union of India & Ors. …Respondents

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 242 OF 2012


B.D. Khunte                                  …Appellant

Versus

Union of India & Ors.                        …Respondents

WITH

                       CRIMINAL APPEAL NO.2328 OF 2014
           (@ Special Leave Petition (Crl.) No.8457 of 2014
              Crl. M.P. No.15455 of 2014)



                               J U D G M E N T

T.S. THAKUR, J.

Criminal Appeal No.242 of 2012:

1.    High Court of Delhi has, while dismissing  writ  petition  No.4652  of
2010 filed by the appellant, affirmed the orders passed by the Armed  Forces
Tribunal, New Delhi and  that  passed   by   the   Summary   General   Court
Martial holding the

appellant guilty for an offence punishable under Section 69 of the Army  Act
read with Section 302 of  the  Ranbir  Penal  Code  and  sentencing  him  to
undergo imprisonment for life besides dismissal from service.

2.    Enrolled on 30th July, 2004, the appellant was  posted  at  Razdan  in
Baramulla Sector of the State Jammu and Kashmir. Deceased Sub Randhir  Singh
was serving as a Senior  JCO/Post  Commander  at  the  very  same  place  of
posting. The prosecution case is that on 28th June, 2006 at about 9.30  p.m.
the appellant while on guard duty shot  Subedar  (AIG)  Randhir  Singh  dead
with a 5.56 Insas Rifle  issued  to  him.  FIR  No.137  of  2006  about  the
incident  was  lodged  by  the  Brigade   Commander   concerned   with   the
jurisdictional  police  Station  at  Bandipur  who  after   completing   its
investigation of the incident filed a charge  sheet  against  the  appellant
before the Jurisdictional Magistrate for  commitment  of  the  case  to  the
Court of Sessions at Baramulla for trial.

3.    The Court of Sessions at Baramulla in turn  transferred  the  case  to
the Army Authorities  for  being  dealt  with  under  the  Army  Act  on  an
application filed before it by the GOC 15 Corps.  A  Summary  General  Court
Martial was accordingly convened for the trial of the  appellant  who  found
the appellant  guilty  for  the  commission  of  offences  punishable  under
Section 69 of the Army Act and Section 302 of  the  Ranbir  Penal  Code  and
sentenced him to undergo imprisonment for life and dismissal  from  service.
Statutory remedies under the Army Act, 1950 having proved  ineffective,  the
appellant filed OA No.5 of 2009 before the Armed Forces Tribunal,  Principal
Bench, New Delhi, which was heard and  dismissed  by  the  Tribunal  by  its
order dated 27th August,  2009.  The  appellant  then  filed  Writ  Petition
No.4652 of 2010 before the High Court of Delhi  which  too  failed  and  was
dismissed by a Division Bench of the High  Court  by  its  order  dated  5th
July, 2011. The present appeal  assails  the  correctness  of  the  judgment
passed by the High Court and that  passed  by  the  Armed  Forces  Appellate
Tribunal. It also  challenges  the  conviction  of  the  appellant  for  the
offence of murder and the sentence awarded to him  by  the  Summary  General
Court Martial.

4.    Mr. Sisodia, senior counsel appearing  for  the  appellant,  raised  a
short point before us. He contended that the appellant  was,  in  the  facts
and circumstances of the case, entitled to the benefit  of  Exception  1  to
Section 300 of the IPC. He argued that according to appellant’s  version  he
was on 28th June, 2006 resting in his bunk after  lunch  when  the  deceased
Sub Randhir Singh came to  the  appellant’s  cot  in  an  inebriated  state,
slapped him mildly twice and asked the appellant  to  follow  him.  Thinking
that he was being called for some kind of duty, the appellant  followed  the
deceased to the store room where the deceased bolted the  door  from  inside
and asked the appellant to remove  his  pant  suggesting  thereby  that  the
deceased intended to sodomise the appellant. When  the  appellant  declined,
the deceased punched him and kicked him repeatedly and asked him to  put  up
his hand and hold the side beams of the top berth of the double bunk in  the
store room. The appellant’s further case is  that  the  deceased  thereafter
made unwelcome and improper advances  like  kissing  his  body,  cheeks  and
stomach. While this was going on, two other personnel viz. Hadgal Vilas  and
Anil Gadge knocked at the door of the store room. The  deceased  opened  the
store room door and asked them to go away and shut the door  again  only  to
continue the appellant’s torture for half an  hour.  The  appellant  somehow
managed to free himself  and  return  to  his  barrack,  shaken  and  crying
inconsolably. He is alleged to have shared his grief and  sorrow  about  the
whole episode with  his  colleagues  and  immediate  superior  officers.  No
formal report was, however, lodged by  the  appellant  before  the  superior
officers,  although  according  to  the  appellant,  the  superior  officers
pacified and advised the appellant to remain calm and  keep  his  cool.  The
appellant’s further case is that he and his  colleagues  planned  to  gather
near the water heating point in the evening and beat up the  deceased.  With
that resolve he performed his administrative tasks during the  day  till  it
was time for him to go for night picket guard duty commencing at  2000  hrs.
along with Hadgal Villas carrying his service  weapon  duly  loaded  as  the
place where he was posted was an operational area. The  appellant’s  version
is that after taking early dinner he reached his place of night guard  duty.
While on duty he saw someone approaching him.  As per the  prevailing  drill
and procedure the  appellant  claims  to  have  challenged  the  approaching
person, but the person  paid  no  heed  to  the  warning  and  continued  to
approach till the appellant could recognise him to  be  Sub  Randhir  Singh.
Seeing the deceased and still seething with anger he opened  fire  upon  him
from his service weapon.  Sub Randhir Singh was hit and dropped dead on  the
spot. The appellant was immediately taken into custody handcuffed  and  tied
to the cot in the barrack.  Investigation  by  the  local  police  into  the
incident commenced leading  to  his  trial  by  the  Summary  General  Court
Martial in which he was found guilty for the murder  of  Sub  Randhir  Singh
and sentenced as mentioned earlier.

5.    The above factual backdrop, argued  Mr.  Sisodia,  was  to  bring  the
appellant’s case within Exception 1 to  Section  300  of  the  Indian  Penal
Code. It was contended that the day time incident in the store room  had  so
deeply shaken the appellant that he was gravely and suddenly  provoked  when
the appellant saw the deceased approaching the picket in  the  evening.  Mr.
Sisodia argued that although there was a time gap of several  hours  between
the attempted commission of an unnatural offence upon the appellant and  the
time when he was gunned down by the  appellant,  yet  keeping  in  view  the
nature of the incident and the effect the same had upon  the  appellant  the
interval was not  of  much  consequence  in  the  matter  of  restoring  the
appellant’s  equilibrium.  The  appellant  was,  according  to  the  learned
Counsel, so deeply disturbed and provoked into a state of complete  loss  of
self-control that he had taken the extreme step of putting the  deceased  to
death no sooner the latter came before him while the appellant was on  guard
duty  armed  with  his  service  weapon.  Mr.  Sisodia  contended  that  the
question: whether an incident was sufficient to result in a  provocation  so
grave and sudden as would deprive the person so provoked  of  the  power  of
self-control will have to be decided in the facts and circumstances of  each
case.  He urged that the appellant  being  a  young  jawan  serving  in  the
Indian Army when beaten up to make him succumb to a possible sexual  assault
was bound to provoke any reasonable person in his position  especially  when
the provocation came from a superior  who  instead  of  protecting  him  had
tried to take undue advantage of his  position.  The  provocation  resulting
from the day time store room incident had continued despite the  intervening
time gap as the appellant had been all the while seething  with  anger.  His
act of firing at the deceased no sooner  he  saw  him  must,  therefore,  be
taken in the context of the attendant facts and circumstances. It was  urged
that an incident of  this  nature  taking  place  in  the  Army  is  usually
underplayed by the  authorities  by  either  denying  the  same  totally  or
presenting a different picture which is neither true nor realistic.

6.    On behalf of the respondents, it was per contra argued  by  Mr.  Attri
that while the question of grave and sudden  provocation  will  have  to  be
seen in the context of each individual case, the facts of the case  at  hand
did not support the appellant’s  plea  for  invocation  of  Exception  1  to
Section 300 of IPC. He urged that the test laid down  by  the  decisions  of
this Court to determine whether the deceased had given  any  provocation  to
the accused, whether the provocation was sudden and  whether  the  same  was
sufficiently grave so as to deprive the offender of  his  self-control  were
not satisfied in the case at  hand.  It  was  contended  that  even  if  the
appellant’s version about  the  day  time  incident  was  accepted,  a  long
interval between the alleged provocation by the deceased and  the  murderous
assault by the appellant clearly denuded the provocation of its gravity  and
spontaneity. A provocation like the one allegedly given by the  deceased  at
1 p.m. would have sufficiently cooled down after long hours especially  when
even according to the appellant he had  attended  to  other  duties  in  the
intervening period. The fact that  the  appellant  and  his  colleagues  had
decided that they will in the evening give a beating to  the  deceased  when
they assembled at the water heating point also showed that  the  provocation
was far from being sudden and grave enough for the appellant  to  shoot  the
deceased down when he saw him in the evening.

7.    We must at the threshold point out that there is no challenge  to  the
finding that it was the appellant  who  had  shot  the  deceased  using  the
weapon and the ammunition issued to him. The reason is obvious.  Depositions
of PWs 4, 5, 7, 8-12 and 16-18 clearly support the prosecution case that  it
was the appellant who had shot the deceased-Randhir Singh and  that  he  was
moments after the incident seen standing near the former’s  dead  body  with
the service rifle in his hand. The evidence also proves that  the  appellant
was caught by two Jawans on the spot and brought inside  the  OR  Lines  and
tied to the bed using ropes.  PW-19  has  further  deposed  that  after  the
appellant was tied to the bed the witness slapped the  appellant  and  asked
him as to why he shot the deceased to which  the  appellant  replied  “SAHAB
NEY MERE KO DUPHAAR KO MARA THA, ISLIYE MAINE SAHIB  KO  MAAR  DIYA”  (Sahab
had beaten me at noon, therefore, I have killed  Sahab).   The  use  of  the
rifle issued to the appellant and the fact that 18  empties  recovered  from
the spot had been fired from the said weapon is also  established  from  the
evidence of PW-18. That 18 bullets fired by the appellant  had  pierced  the
body of the deceased is also not in  dispute.   Any  argument  to  discredit
this overwhelming evidence or dispute the involvement of  the  appellant  in
the shooting incident would have been specious and futile to say the  least.
That is perhaps the reason why no attempt was made by Mr. Sisodia  to  argue
that the incident did not involve the  appellant  or  that  he  was  falsely
implicated.
8.    The only question, as seen earlier, is whether the incident that  took
place around 1400  hrs.  in  the  store  room  could  mitigate  the  offence
committed by the appellant. The  answer  to  that  question  would  in  turn
depend  upon  the  nature  of  the  incident  and  whether  the  same  would
constitute grave and sudden provocation for the appellant to have  shot  the
deceased long after the store room incident had taken place.
9.    That an incident took place at 1400 hrs. in the store room  cannot  be
denied. Depositions of PWs. 11 and 13  support  the  appellant's  case  that
some incident had indeed taken place which had disturbed the  appellant  for
he was found crying over the same. When asked as to why  he  was  upset  and
crying, the appellant had, according to the said two  witnesses,  told  them
that the deceased had beaten him. To the same effect is  the  deposition  of
PW-19, according to whom, the appellant was in the company of  the  deceased
in a room at around 1400 hrs. where the appellant was  crying.   Later  that
day when the appellant met the witness near the water heating point and  was
asked as to why he was crying the appellant is said to have  replied  “SAHAB
NEY MERE KO BAHUT MARA AUR PANT KHOLNEY KO BATAYA AUR MERE  MANA  KARNE  PAR
MUJHE PHIR PITA” (Sahab beat me up and asked me to open my pant  and  on  my
refusal to do so beat me again).
10.   Suffice it  to  say  that  the  appellant's  version  gets  sufficient
support from the prosecution witnesses themselves that an incident did  take
place at 1400 hrs. in the store room in which the appellant was  beaten  and
humiliated. There is, however, no evidence nor is it  the  appellant's  case
that the deceased had actually sodomised him. Even PW-19  deposed  that  the
appellant had not complained of having been sodomised by the  deceased.  The
High Court has also taking note of this aspect held that while the  physical
assault on the  appellant  had  humiliated  the  appellant,  but  there  was
nothing to show that he was actually sodomised. Whether or not the  deceased
had sodomised the appellant is not material.  The  question  is  whether  an
incident had taken place.  If so, did the same constitute grave  and  sudden
provocation?  What is proved by the evidence on record is that the  deceased
had, by his conduct, humiliated the appellant to  an  extent  that  he  felt
deeply disturbed and was seen crying  by  his  colleagues  in  whom  he  had
confided by telling them the cause for his distress.

11.   What is critical for a case to fall under Exception 1 to  Section  300
IPC is that the provocation must not only be grave but sudden  as  well.  It
is only where the following ingredients of Exception 1  are  satisfied  that
an accused can claim mitigation of the offence committed by him from  murder
to culpable homicide not amounting to murder:

(1)   The deceased must have given provocation to the accused.

(2)   The provocation so given must have been grave.

(3)   The provocation given by the deceased must have been sudden.

(4)   The offender by reason of such grave and sudden provocation must  have
been deprived of his power of self-control; and

(5)   The offender must have killed the deceased  or  any  other  person  by
mistake or accident during the continuance of the deprivation of  the  power
of self-control.



12.   Applying the above tests to the case at hand there  is  no  gainsaying
that an  able  bodied  youthful  Jawan  when  physically  assaulted  by  his
superior may  be  in  a  state  of  provocation.   The  gravity  of  such  a
provocation may be heightened if the physical beating  was  meant  to  force
him to submit to unnatural carnal  intercourse  to  satisfy  the  superior's
lust. The store room incident involving the appellant and  the  deceased  is
alleged to have taken place when the deceased had bolted  the  door  of  the
store room to keep out any intruder from seeing what was  happening  inside.
By  any  standard  the  act  of  a  superior  to  humiliate  and  force  his
subordinate in a closed room to succumb to the lustful design of the  former
was a potent recipe for anyone placed in the appellant’s position to  revolt
and retaliate against the treatment  being  given  to  him.  What  may  have
happened inside the store room if the  appellant  had  indeed  revolted  and
retaliated against the unbecoming conduct of the deceased  is  a  matter  of
conjecture. The appellant or any one in his  position  may  have  retaliated
violently to the grave peril of his tormentor.   The  fact  of  the  matter,
however, is that the appellant appears to have  borne  the  assault  without
any retaliation against the deceased-superior and somehow managed to  escape
from the room. The critical moment when the appellant  could  perhaps  loose
his cool and equilibrium to take retaliatory  action  against  the  deceased
was thus allowed to pass uneventfully, grave and sudden provocation for  any
such action notwithstanding.

13.   All that the evidence proves is  that  after  the  said  incident  the
appellant was seen crying and depressed and when asked by his colleagues  he
is said to have narrated his  tale  of  humiliation  at  the  hands  of  the
deceased.   There  is  no  evidence  to  prove  that  after   the   incident
aforementioned the appellant had continued to suffer a  prolonged  spell  of
grave provocation. By their nature such provocation  even  when  sudden  and
grave cool off with passage of time often lapsing into what would  become  a
motive for taking revenge whenever an opportunity arises.  That  appears  to
have happened in the present case also for the appellant's version  is  that
he and his colleagues had planned to avenge the humiliation  by  beating  up
the deceased in the evening when they all assemble near  the  water  heating
point. That apart, the appellant attended to his normal duty during the  day
time and after the evening dinner, went to perform his guard  duty  at  2100
hrs. All these circumstances do not betray any signs of  grave  leave  alone
grave and sudden provocation to have continued haunting  the  appellant  and
disturbing his mental equilibrium or depriving him of self control  that  is
an essential attribute of grave and  sudden  provocation  to  qualify  as  a
mitigating factor under Exception 1 to Section 300 IPC.

14.   It was contended by Mr. Sisodia that  although  between  the  incident
that happened at noon and the shooting of the deceased  at  2130  hrs.  were
separated by nearly seven hours interval,  the  nature  of  the  provocation
continued to be  grave within the meaning of  Exception  1  to  Section  300
IPC. We find it difficult  to  accept  that  submission.  Grave  provocation
within the meaning of Exception  1  is  a  provocation  where  judgment  and
reason  take  leave  of  the  offender  and  violent  passion  takes   over.
Provocation has been defined by Oxford Dictionary,  as  an  action,  insult,
etc. that is likely to provoke physical retaliation.  The  term  grave  only
adds an element of  virulent  intensity  to  what  is  otherwise  likely  to
provoke retaliation.

15.   In R. v. Duffy [1949] 1 All E.R. 932 provocation  has  been  explained
as under:-

“The whole doctrine relating to provocation depends  on  the  fact  that  it
cause, or may causes, a sudden and temporary loss of  self-control,  whereby
malice, which is the formation  of  an  intention  to  kill  or  to  inflict
grievous bodily harm, is  negatived.  Consequently,  where  the  provocation
inspires an actual intention to kill, or to inflict  grievous  bodily  harm,
the doctrine that provocation  may  reduce  murder  to  manslaughter  seldom
applies.”



16.   The argument that the incident that took place  around  noon  on  that
day was a grave provocation that continued to provoke  the  appellant  right
through the day till 9.30 evening when  the  appellant  shot  the  deceased,
does not, therefore, appeal to  us,  not  only  because  the  appellant  had
settled for a lesser act of retaliation like beating of the deceased in  the
evening by him and  his  colleagues  when  they  assembled  near  the  water
heating point, but also because  the  appellant  had  performed  his  normal
duties during the day time and even in the evening except that he  and  some
of his colleagues appear to have planned beating up the deceased.

17.   This Court was in K.M. Nanavati v. State of Maharashtra  AIR  1962  SC
605 dealing with a somewhat similar question.  In that case the wife of  the
accused had confessed her  illicit  intimacy  with  the  deceased  when  the
deceased was not present. The prosecution case as proved at  the  trial  was
that after the confession of the wife, the accused had driven  her  and  the
children to a cinema and left them  there,  gone  to  his  ship  to  take  a
revolver loaded with six rounds and driven his car  to  the  office  of  the
deceased and then to his flat, gone to his  bed  room  and  shot  him  dead.
This Court held that between 1.30 p.m. when the deceased left his house  and
4.20 p.m. when the murder took place there was a gap of  three  hours  which
was sufficient time for him to regain his self control even if  he  had  not
regained it earlier. The following passage from the decision is  significant
when it deals with the expression grave within the meaning  of  Exception  1
to Section 300 IPC:


“86. Bearing these principles in mind, let us look  at  the  facts  of  this
case. When Sylvia confessed to her husband that  she  had  illicit  intimacy
with Ahuja, the  latter  was  not  present.  We  will  assume  that  he  had
momentarily lost his self-control. But, if his version is  true  —  for  the
purpose of this argument we shall accept that what he has said is true —  it
shows that he was only thinking of the future of his wife and  children  and
also of asking for an explanation from Ahuja for his conduct. This  attitude
of the accused clearly indicates that he had not  only  regained  his  self-
control, but, on the other hand, was planning for the future. Then he  drove
his wife and children to a cinema, left them there, went to his  ship,  took
a revolver on a false pretext, loaded it with six rounds, did some  official
business there, and drove his car to the office of Ahuja  and  then  to  his
flat, went straight to the bedroom of Ahuja and shot him dead. Between  1.30
p.m., when he left his house, and 4.20 p.m., when  the  murder  took  place,
three hours had elapsed, and therefore there was sufficient time for him  to
regain his self-control, even if he had not  regained  it  earlier.  On  the
other hand, his conduct clearly shows that the murder was a  deliberate  and
calculated one. Even if any conversation took place between the accused  and
the deceased in the manner described by the  accused  —  though  we  do  not
believe that — it does not affect the question, for the accused entered  the
bedroom of the deceased  to  shoot  him.  The  mere  fact  that  before  the
shooting the accused abused the deceased and the abuse provoked  an  equally
abusive reply could not conceivably be a provocation  for  the  murder.  We,
therefore, hold that the facts of the case do not attract the provisions  of
Exception 1 to Section 300 of the Indian Penal Code.”



18.   The position in the case at hand is no different.  Between  1400  hrs.
when the appellant was given a grave provocation and  2130  hrs.,  the  time
when the appellant shot the deceased there were  seven  hours  which  period
was sufficient for the appellant to cool down.  A  person  who  is  under  a
grave and sudden provocation can  regain  his  cool  and  composure.   Grave
provocation  after  all  is  a  momentary  loss   of   one’s   capacity   to
differentiate between what is right  and  what  is  not.  So  long  as  that
critical moment does not result in any  damage,  the  incident  lapses  into
realm of memories to fuel his desire to take revenge and  thus  act  a  s  a
motivation for the commission of a crime in future.  But any such memory  of
a past event does  not  qualify  as  a  grave  and  sudden  provocation  for
mitigating the offence.  The beating and humiliation which the  accused  had
suffered may have acted as a motive for revenge  against  the  deceased  who
had caused such humiliation but that is not what falls  in  Exception  1  to
Section 300 of the IPC which is identical to Exception 1 to Section  300  of
the Ranbir Penal Code applicable to the State of Jammu & Kashmir  where  the
offence in question was  committed  by  the  appellant.   We  may,  in  this
regard, extract the following passage from Mancini v.  Director  for  Public
Prosecutor [1941] 3 All E.R. 272 :

“it is not  all  provocation  that  will  reduce  the  crime  of  murder  to
manslaughter. Provocation to have that result, must be such  as  temporarily
deprive the person provoked of the power of self-control as result of  which
he commits the unlawful act which caused death. The test  to  be  applicable
is that of the effect of the provocation on a reasonable man,  as  was  laid
down by the Court of Criminal Appeal in Rex v. Lesbini so that an  unusually
excitable or pugnacious individual is not entitled to  rely  on  provocation
which would not have led ordinary person to act as he did. In  applying  the
test, it is of particular importance to (a) consider  whether  a  sufficient
interval has elapsed since the provocation to allow a  reasonable  man  time
to cool, and (b)  to  take  into  account  the  instrument  with  which  the
homicide was effected, for to retort, in the  heat  of  passion  induced  by
provocation, by a simple blow, is very different thing from making use of  a
deadly instrument like a concealed dagger. In short, the mode of  resentment
must bear a reasonable relationship to the provocation if the offence is  to
be reduced to manslaughter.”


19.   The contention  that  the  day  time  incident  being  such  that  the
appellant could get a grave provocation, the  moment  he  saw  the  deceased
coming towards the place where he was on guard duty, also has  not  appealed
to us.  It is not the case of the  appellant  that  the  deceased  had  come
close to him or tried to act fresh with him so as to give to  the  appellant
another provocation that could possibly justify his losing self-control  and
using his weapon. The appellant's version that he had  called  halt  as  all
Jawans on guard duty are trained to do in operational  areas  but  when  the
person approaching him did not stop and when he recognised the person to  be
none other than the deceased shot him, clearly suggests  that  the  deceased
was not in close physical proximity to  the  appellant.  The  appellant  may
have been angry with the deceased for his  act  of  misdemeanour.   But  any
such anger would only constitute  a  motive  for  taking  revenge  upon  the
deceased.  It could not be described as a grave and sudden  provocation  for
which deceased could have been shot the moment  he  came  in  front  of  the
appellant.  The deceased, at any rate, could not be accused of having  given
any provocation to the appellant by  moving  towards  the  place  where  the
appellant was on guard duty for the deceased was well within the  sphere  of
his duty to keep an eye on those who were performing  the  guard  duty.  The
very act of appearance of  the  deceased  near  the  picket/post  where  the
appellant was on duty could not, therefore, constitute a provocation  within
the meaning of Exception 1 to Section 300 IPC.

20.   In the result this appeal fails and is hereby dismissed.

  Criminal Appeal No.2328 OF 2014
(@ Special Leave Petition (Crl.) No. 8457 of 2014 Crl M.P.
 No.15455/2014)


      Delay condoned

      Leave granted.

      In view of our order of even date passed in Criminal Appeal No.242  of
2012, this appeal, filed by the appellant-B.D. Khunte, also  fails  and  is,
hereby, dismissed.



                                                        ………………………………….…..…J.
                                           (T.S. THAKUR)





                                                        ………………………………….…..…J.
                                           (ADARSH KUMAR GOEL)



                                                       …………………………..……………..J.
New Delhi,                     (R. BANUMATHI)
October 30, 2014

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