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  • How To Record The Evidence Of Deaf And Dumb Rape Victim? : Bombay High Court

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How To Record The Evidence Of Deaf And Dumb Rape Victim? : Bombay High Court

Courtesy/By: Sanjeev Sirohi  |  01 Jul 2019     Views:1377

It has to be remarked that in a significant judgment titled Hanumant Vs The State Of Maharashtra in Criminal Appeal No. 493 of 2019 and Criminal Application No. 1702 of 2019 in Criminal Appeal No. 493 of 2019 delivered just recently on June 26, 2019 by the Aurangabad Bench of Bombay High Court has explained as to how to record the evidence of deaf and dumb rape victim. It has also remanded the rape case to the Trial Court on the ground that evidence of deaf and dumb victim was recorded without considering the provisions of Section 119 Evidence Act. As per the proviso to Section 119 Evidence Act, when the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.

                               To start with, the ball is set rolling by Justice AM Dhavale who authored this noteworthy judgment by first and foremost pointing out in the introductory part in para 1 that, “Heard Shri Nilesh S. Ghanekar, learned counsel for the appellant and Shri S.J. Salgare, learned APP for respondent/State.” Para 2 then states that, “Considering the important issue of mode of recording of evidence of deaf and dumb victim girl, the appeal is admitted.” Furthermore, it is then stated in para 3 that, “With the consent of the parties, the matter is taken up for final disposal at the stage of admission.”

                                    To recapitulate, it is then pointed out further in detail in para 4 that, “The appellant has been convicted for offence u/s 376(2)(1) IPC for committing rape on a deaf and dumb girl and is sentenced to suffer RI for 10 years and to pay fine of Rs. 10,000/-, in default to suffer RI for three months. He is also convicted for offence u/s 323 IPC. On 16.11.2016, the victim’s brother lodged FIR at Shirur Police Station, Tq. Shirur Kasar, Dist. Beed. As per the FIR, the informant had five sisters and the victim was deaf and dumb. She was aged 23 years. Since 7-8 days prior to the FIR, the victim girl had abdominal pains and was feeling weakness. When she was taken to the Civil Hospital, it was disclosed that she was pregnant for five months. When the informant and his parents made enquiry with her as to with whom she had relations, she pointed by signs the house of the accused and stated that the person residing there had entered her house before Ramjan and used force to press her neck and thereafter committed sex with her. FIR was registered at Crime No. 226/2016 and was investigated into. The investigation revealed that the victim was illiterate and was not even knowing the scientific sign language of the deaf and dumb persons. Her statement was recorded through an interpreter from mentally retarded school and its video recording was done.”  

                           To be sure, it is then revealed in para 5 that, “Shri S.J. Salgare, learned APP submits that, the victim girl has delivered a child and there was DNA testing which proved that the accused was biological father of the child. The accused has taken a defence of total denial. Shri Ghanekar, learned counsel for the appellant submits that, when witness or victim girl is deaf or dumb, her evidence should be recorded as per Section 119 of the Evidence Act. He relies on the judgment of the Apex Court in State of Rajasthan vs. Darshan Singh @ Darshan Lal reported in 2012 AIR SCW (S.C.) 3036, wherein it was laid down that,

  1. To sum up, a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign for language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.”

                                      Going forward, it is then brought out in para 6 that, “Shri Ghanekar submits that, since the victim girl was illiterate, first course to record her evidence in writing was not possible but the ld. Trial Judge committed error in recording her statement with the aid of interpreter without giving him oath. Besides, the interpreter was the same person who had recorded her statement u/s 161 Cr.P.C. The ld. Trial Judge was bound to record the signs made by victim girl while giving answers. He argued that, though there is no specific defence that the act was committed with the consent, the prosecution is bound to show that if there was sexual intercourse it was against the will or without the consent of the victim girl. She was major and cannot be presumed to be mentally retarded or idiot. She is capable of giving consent and if the act has taken place with her consent, there would be no offence. He points out that, the victim girl had not disclosed the incident to anybody for a period of more than five months. Even the FIR was not immediately lodged after knowledge of her pregnancy. Shri Ghanekar relies on the evidence of Dr. Babasaheb Dhakane (PW6) to submit that the pregnancy of the victim girl was detected by her relatives in August-2016 only whereas the FIR is filed in November-2016. The victim’s brother has turned hostile. He also pointed out that, as per Section 119, it is mandatory to record the evidence of deaf and dumb person with videography. This has not been followed. The victim girl was not in a position to tell her name and age. No questions were asked to make enquiry about her intellectual capacity. Considering the facts, there was no fair trial and the accused has been prejudiced.”  

                                          On the contrary, it is then pointed out in the next para 7 that, “Per contra, learned APP submits that, statement of deaf and dumb was recorded with the help of interpreter and it was also videographed. Her evidence is supported with DNA report which shows that the accused is biological father of the child begotten by her. He refers to the evidence of PW3 that, she has identified the accused at the time of her evidence and showed by signs that he had pressed her throat and had moved her hand on her stomach indicating that the accused is responsible for her pregnancy.” 

                                      After hearing both the sides and considering their viewpoint and facts, it is then held in para 8 that, “Considering the facts, the most material issue in this matter is whether PW3 – the victim girl was consenting party or not? She was major and it is nobody’s case that she was not sound. She was capable of giving consent. There are some facts which may support the defence story that she was consenting as there was delay in reporting the matter to police. Nonetheless, there can be reasons which can be accepted for delay in lodging the FIR in such matters.”

                                   More significantly, it is then held in para 9 that, “I find that, the ld. Trial Judge while dealing with a case of deaf and dumb girl ought to have considered the provisions of Section 119 and the apex court’s judgment on the same. The trial court did not verify her understanding capacity. Though evidence of the witness was recorded by appointing an interpreter, the ld. Trial Judge has not followed certain conditions. No oath was administered to the interpreter that he would fully and correctly interpret the questions put to the witness and shall also fully and correctly interpret the answers given by the witness in sign language to the court. As per Section 119 of Evidence Act amended from 03.02.2013, the proviso lays down that, when the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed. The apex court has observed that, the Judge has not only to record the interpretation given by the interpreter but also he has to record the signs made by the witness. This is difficult and now the videography will solve the problem faced by the Judge in recording the signs. These provisions are not followed.”

                                     What’s more, it is then further held in para 10 that, “Considering the facts, it is difficult to determine whether the prosecutrix was a consenting party or not. In the light of these facts, the conviction cannot be sustained and the matter will have to be remanded to the Sessions Judge with direction to record the evidence of PW3-victim girl afresh by following the provisions of Section 119 as interpreted by the Apex Court in Darshan Singh @ Darshan Lal’s case (supra). The Judge shall record the competency to understand and interpret the sign language of deaf and dumb person. The Judge shall give oath to the interpreter for correctly interpreting the questions to the witnesses and the answers given by the victim to the court. Once it is done, the evidence shall be recorded and the same shall be videographed. The prosecution shall make arrangement of the videography of the evidence. The focal point of the evidence should be, whether the act was with consent or without consent. However, the parties shall be at liberty to lead evidence and challenge the same on any other legally permissible point according to law.

                                     It cannot be lost on us that it is then held in para 11 that, “Considering the facts the appeal is partly allowed. The conviction is set aside. The matter is remanded to the trial Court to record evidence of the prosecutrix again and decide the matter afresh. Since the accused is in Jail from 17.11.2016, he is permitted to file fresh Bail Application which the trial Court shall consider on its own merits.”

                              Not stopping here, it is then further held in para 12 that, “The appellant is directed to remain present in the trial Court on 08.07.2019. The ld. Trial Judge shall hear the matter expeditiously and shall dispose it of within one month from the date of receipt of record and appearance of the parties. The Registrar shall forward the record immediately.” Finally, it is then held in the last para 13 that, “In view of disposal of main appeal, nothing survives in the connected Criminal Application and same stands disposed of.”

                                       In a nutshell, the Aurangabad Bench of Bombay High Court in this notable case seeks to explain how to record the evidence of deaf and dumb rape victim. The Trial Court was directed to follow the procedure of recording such evidence and also to dispose it of within one month as pointed out in the above para. The Trial Court earlier didn’t follow the proper procedure in this regard as has already been explained in detail in the above paras and now it has to comply according to the procedure laid down by the Aurangabad Bench of Bombay High Court. Very rightly so!


Courtesy/By: Sanjeev Sirohi  |  01 Jul 2019     Views:1377

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Diocese of Tanjore Society School gets relief from...
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THE TEMPLES IN KARNATAKA NO MORE BE GOVERNED UNDER...
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Triple Talaq legislation is challenged in the Delh...
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Special Olympics International Football Championsh...
03 Aug 2019     Views:750
Concession to be given to disabled persons appeari...
03 Aug 2019     Views:1244
Bombay High Court Hears Dowry Case Involving A Civ...
03 Aug 2019     Views:886
Karnataka High Court on the condition of Roads...
02 Aug 2019     Views:1087
SC ORDERS DEATH PENALTY IN COIMBATORE GANG-RAPE CA...
02 Aug 2019     Views:795
RBI Changes Features Of New Currency Notes. Bombay...
02 Aug 2019     Views:757
Interest Of Victim And Society At Large Must Also ...
02 Aug 2019     Views:736
Abolition of Colonial Decorum in Courts...
01 Aug 2019     Views:4874
Punjab & Haryana HC Bans Use Of Loudspeakers Witho...
31 Jul 2019     Views:1236
ICJ Has Rightly Called Pakistan’s Bluff In Jadha...
26 Jul 2019     Views:716
Review And Reconsider Conviction And Sentencing Of...
22 Jul 2019     Views:732
Plaintiff Cannot Be Forced To Add Parties Against ...
21 Jul 2019     Views:847
Biggest Slap By ICJ Directly Right On The Face Of ...
19 Jul 2019     Views:637
Delhi HC Imposes Rs. 50,000 Cost On Woman For Fals...
17 Jul 2019     Views:778
Non-Appointment Of Judges Affects Speedy Justice: ...
16 Jul 2019     Views:732
Right To Get Anticipatory Bail Is Not Any Fundamen...
14 Jul 2019     Views:1088
Plea For Anticipatory Bail Not Maintainable Before...
13 Jul 2019     Views:1309
Divorce Cannot Be Granted Only On Ground Of Irretr...
11 Jul 2019     Views:715
Right To Shelter A Fundamental Right; State Has Co...
08 Jul 2019     Views:765
HC Cannot Reverse Acquittal Without Affording Oppo...
06 Jul 2019     Views:644
Centre Is Legally Empowered To Create A High Court...
05 Jul 2019     Views:1114
Centre Must Now Immediately Order Creation Of HC B...
03 Jul 2019     Views:640
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Ban Advocates From Carrying Weapons Inside Court P...
26 Jun 2019     Views:1634
Enact Strict Law To Ensure Personal Safety Of Doct...
26 Jun 2019     Views:1504
Mere Aggressive Behaviour Of Wife Not A Ground Of ...
26 Jun 2019     Views:1737
Court Cannot Destroy Faith & Beliefs Of People: Ma...
07 Jun 2019     Views:696
Insult Of Soldier In Name Of Law Is Most Disgracef...
07 Jun 2019     Views:784
Courts Cannot Decide Eligibility And Essential Qua...
20 May 2019     Views:2350
SC Upholds Constitutionality Of Section 23 Of PCPN...
20 May 2019     Views:1740
My Unflinching Faith In CJI Stands Fully Vindicate...
20 May 2019     Views:1041
Solitary Confinement Of Death Convict Prior To Rej...
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Section 498A & 306 IPC: Incidents Which Happened M...
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Why Should UP Have Least High Court Benches In Ind...
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“Drop This Episode From Your Minds And Gossips...
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Is The Criticism Of In-House Procedure Justified?...
20 May 2019     Views:927
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18 May 2019     Views:761
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Magistrate Shall Specify Whether Sentences Awarded...
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Inability To Establish Motive In A Case Of Circums...
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Successive Applications For Recalling Witnesses Sh...
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Lieutenant General (Rtd) Cannot Be Tried In A Gene...
06 Feb 2019     Views:1632
Autonomy Of the Bar Cannot Be Taken Over By The Co...
05 Feb 2019     Views:2330
Casual Act Of Possession Over Property Does Not Co...
04 Feb 2019     Views:1535
No Authority Can Claim Privilege Not To Comply Wit...
04 Feb 2019     Views:1706
Death Sentence Only When The Alternative Option Is...
04 Feb 2019     Views:1922
SC Imposes Rs 5 Crore Penalty On A Medical College...
28 Jan 2019     Views:1211
A Judicial Officer Is Not An Ordinary Government S...
25 Jan 2019     Views:1380
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Quick Divorce in India...
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Offences Under Section 307 IPC Can’t Be Quashed ...
17 Jan 2019     Views:2433
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recheck...
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11 Dec 2018     Views:1286
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26 Nov 2018     Views:1599
SLP Against Death Sentence Shall Not Be Dismissed ...
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Sexual Offenders Registry For Law Enforcement Agen...
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Devotion Cannot Be Subjected To Gender Discriminat...
23 Oct 2018     Views:2918
There Cannot Be Any Mechanical Denial Of Appointme...
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Rights Of Accused Far Outweigh That Of Victims, Ne...
23 Oct 2018     Views:1023
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Extra-Judicial Confession Of Accused Need Not In A...
23 Oct 2018     Views:1225
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Section 377 IPC Decriminalised Partially By Supre...
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SC Stresses On Need To Develop And Recognize ‘De...
08 Sep 2018     Views:1107
Mirchpur Dalit Killings: “Atrocities Against SCs...
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SC Upholds Pan India Reservation Rule in Delhi; Bu...
03 Sep 2018     Views:1489
NDPS Bail Conditions Discriminatory, Irrational An...
31 Aug 2018     Views:2274
People Without A Degree Performing Surgeries: Utta...
28 Aug 2018     Views:1079
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28 Aug 2018     Views:1669
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28 Aug 2018     Views:1282
MP HC To Debar Members/Office Bearers Of Bar Counc...
22 Aug 2018     Views:1028
Special Squad, Police Patrolling Every 24 Hours To...
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NRC Being Prepared Under Supreme Court’s Watch I...
20 Aug 2018     Views:1120
Victims Of Crime Can Seek Cancellation Of Bail: MP...
20 Aug 2018     Views:1268
Delhi HC Strikes Down Provisions In Law That Crimi...
13 Aug 2018     Views:1308
Delhi HC Quashes Govt Notification Revising Minimu...
09 Aug 2018     Views:1165
Poorest Of Poor Cannot Go To Private Hospitals: Ut...
07 Aug 2018     Views:1594
How Long Will Lawyers Of West UP Just Keep Strikin...
04 Aug 2018     Views:1500
Courts Must See That The Public Doesn’t Lose Con...
04 Aug 2018     Views:1167
UK Tier 1 Entrepreneur Visa: Overview from Experts...
31 Jul 2018     Views:1063
Enact Law For Safety Of Soldiers Of Jammu And Kash...
23 Jul 2018     Views:1132
SC Advocates Creating A Special Law Against Lynchi...
23 Jul 2018     Views:2299
Matrimonial Discord Can’t Be Considered As Reaso...
23 Jul 2018     Views:2032
Uttarakhand HC Recommends Govt To Enact Legislatio...
23 Jul 2018     Views:2386
High Court Priests Cannot Refuse To Perform Religi...
23 Jul 2018     Views:1595
Uttarakhand High Court Passes String Of Directions...
23 Jul 2018     Views:963
SC Finally Decides Master Of Roster Case...
23 Jul 2018     Views:900
Stone Pelters And Terrorists Have No Right To Life...
23 Jul 2018     Views:1123
Remove Designations Like Police, HC, Journalist, A...
23 Jul 2018     Views:998
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Farmer Suicide Due To Bankruptcy Or Indebtedness: ...
05 Jul 2018     Views:3437
Every Indian Should Salute Brave Soldier Aurangzeb...
05 Jul 2018     Views:2203
Uttarakhand HC Issues Directions To Curb Drug Pedd...
05 Jul 2018     Views:1778
Have A Functional National Law University Within 3...
05 Jul 2018     Views:1467
Establish Regional Bench Of AFT In The State Withi...
05 Jul 2018     Views:886
Cancel Licences of Drivers Using Cell Phones; Helm...
05 Jul 2018     Views:806
Uttarakhand High Court Puts Restrictions On Noise ...
05 Jul 2018     Views:879
Supreme Court To Look Into Validity Of Amended Law...
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Mysterious Deaths, Rapes, Malnutrition, Unsanitary...
29 Jun 2018     Views:1889
No Politics Please Over Plan To Assassinate PM Mod...
11 Jun 2018     Views:1330
Free Mentally Ill Children And Formulate Policies ...
11 Jun 2018     Views:1736
Landmark Ruling By Uttarakhand HC On Solitary Conf...
07 Jun 2018     Views:2101
Right Of Adult Couple To Live Together Without Mar...
06 Jun 2018     Views:1466
Why BJP Will Be Wiped Out In West UP And UP?...
06 Jun 2018     Views:1607
Why UP Has Just One High Court Bench And West UP N...
05 Jun 2018     Views:1065
Women Governed By Muslim Personal Law Can Invoke P...
04 Jun 2018     Views:905
Why Is BJP Not Creating More Benches In UP?...
01 Jun 2018     Views:902
Probation Period To Count For New Civil Servants B...
01 Jun 2018     Views:2426
SC Women Lawyers Association Seeks Chemical Castra...
01 Jun 2018     Views:877
SC Finally Steps In To Expedite POCSO Cases...
01 Jun 2018     Views:1801
UP Former CMs Can’t Stay In Govt Bungalows: SC...
01 Jun 2018     Views:830
Make BCCI A Public Body: Law Panel...
01 Jun 2018     Views:920
Self-Styled Godman Asaram Awarded Life Until Death...
01 Jun 2018     Views:941
Why Cases Withdrawn Against Stone Pelters In Kashm...
01 Jun 2018     Views:1023
A High Court Bench For West UP In Meerut Is Impera...
01 Jun 2018     Views:1126
People Of Karnataka Should Worship Congress...
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Delhi HC Upholds Life Term To Seven Policemen...
19 Mar 2018     Views:902
Finance Act-2018 And Customs Act-1962 (Amendments)...
28 Feb 2018     Views:944
Why No Death Or Life Term For Corruption?...
19 Feb 2018     Views:815
Will Electoral Bonds Usher In Transparency?...
19 Feb 2018     Views:803
How Long Will Lawyers Of West UP Keep Striking?...
19 Feb 2018     Views:875
Finance Act 2018 and Customs Act 1962...
18 Feb 2018     Views:1141
Why Has Stone Pelting Been Legalised In Kashmir?...
12 Feb 2018     Views:880
Shopian Firing: Major's Dad Moving SC For Quashing...
12 Feb 2018     Views:846
Soldiers Have Every Legal Right To Kill Stone Pelt...
12 Feb 2018     Views:1986
Attack On Lawyers: Delhi HC Issues Notice To Delhi...
10 Feb 2018     Views:886
Female Foeticide Must Be Punished Most Strictly...
10 Feb 2018     Views:859
Soldiers Have Every Legal Right To Act In Self Def...
10 Feb 2018     Views:810
New Consumer Protection Bill 2018 Will Entail More...
10 Feb 2018     Views:814
CJI Brings Out A Roster To Allot Cases...
10 Feb 2018     Views:1363
Five Year Jail Term For Lalu In Third Fodder Scam ...
10 Feb 2018     Views:899
SC Quashes All The 88 Mining Leases In Goa...
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Prevention Of Money Laundering Act -2002 (PMLA-20...
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Prevention Of Money Laundering Act-2002 Amended ...
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Prevention Of Money Laundering Act -2002 --U/S 45(...
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Prevention Of Money Laundering Act-2002 (P...
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Prevention Of Money Laundering Act-2002 PMLA...
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Right to Know...
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A STUDY OF CERTAIN DEDUCTIONS ON INCOME TAX RELATI...
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Enviornment protection is for saving universe...
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RIGHT TO PRIVACY AND STATUS OF SECTION 377, IPC, 1...
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PROBLEMS WITHIN THE EXISTING POLICE SYSTEM...
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THE PARADOX OF PLEA BARGAINING...
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JOURNEY OF EVMs AMIDST CONTROVERSIES ...
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2G Scam : The 2G Scam and much more...
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Motherhood or Employment- the judicial perspective...
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