Radhey Shyam Tiwary vs The State Of Bihar on 8 September, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.172 of 2014
Arising Out of PS.Case No. -333 Year- 2012 Thana -BHABHUA District- BHABHUA (KAIMUR)

Girija Shankar Dubey @ Girija Dubey, son of Late Ram Singasan Dubey, resident
of village- Dadara, P.O.- Pahariya, P.S.- Bhagwanpur, District- Kaimur at Bhabua
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent
With

Criminal Appeal (SJ) No. 173 of 2014
Arising Out of PS.Case No. -333 Year- 2012 Thana -BHABHUA District- BHABHUA (KAIMUR)

Radhey Shyam Tiwary, son of Shri Daya Shankar Tiwary, resident of village-
Kathaura, P.S.- Sonhan, District- Bhabua (Kaimur)
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent
With

Criminal Appeal (SJ) No. 210 of 2014
Arising Out of PS.Case No. -333 Year- 2012 Thana -BHABHUA District- BHABHUA (KAIMUR)

Jalim Bind, son of Tulsi Bind, resident of Village Bahuara, P.S. Sonhan, District
Kaimur (Bhabua).

…. …. Appellant
Versus
The State of Bihar through Dudhnath Tiwary (informant) S/o Late Chandrika
Tiwary R/o Village Kathaura, P.S. Sonhan, District Kaimur (Bhabua).

…. …. Respondent

Appearance :

(In CR. APP (SJ) No.172 of 2014)
For the Appellant/s : Mr. Ranjeet Kumar Mishra, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
(In CR. APP (SJ) No.173 of 2014)
For the Appellant/s : Mr. Ajay Kumar Thakur with Nilesh
Kumar, Advocates
For the Respondent/s : Mr. Bipin Kumar, APP
For the informant : Mr. Rajni Kant Pandey, Advocate
(In CR. APP (SJ) No.210 of 2014)
For the Appellant/s : Mr. Radha Mohan Pandey, Advocate
For the Respondent/s : Mr. D.K.Sinha, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
CAV JUDGMENT
Date: 08 -09-2017
Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017

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All the above appeals are directed against the judgment dated

15.2.2014 and order dated 17.2.2014 passed by Shri Hari Dayal Patel,

1st Additional Sessions Judge, Bhabua, Kaimur in Sessions Trial No. 83

of 2013/63 of 2013 by which the appellants in all the above appeals had

been convicted under Section 376-G of the Indian Penal Code and

sentenced to undergo rigorous imprisonment for ten years and a fine of

Rs.10,000/- each and in default in payment of fine, further simple

imprisonment for six months. As all the appeals are directed against the

same judgment and order, they are taken up together and being

disposed of by a common judgment.

2. Prosecution case, in brief, based on the fardbeyan of the

informant, Dudh Nath Tiwary (P.W.4) is that on 1.10.2012 at around

10 P.M. after having dinner he along with his wife, Sushila Devi

(P.W.3) and daughter, Rekha Kumari (P.W.5), who is deaf and dumb,

but has cleared her Matriculation Examination, and can communicate

by reading and writing, went off to sleep. His wife and daughter were

sleeping in the adjoining room on separate cots when at around 11.30

P.M., his wife woke up and found her daughter missing from the cot.

After searching for her, when she could not find her, she informed the

informant about the same. Thereafter, the informant (P.W.4) along with

brother Lalmuni Tiwary (P.W.2) and other villagers searched for her in

and around the village but could not find her. He kept on searching on
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2.10.2012 as well but there was no information about her. At around 3

P.M., some village boys informed that the victim was lying under the

staircase of the newly constructed school building. The informant with

other villagers went there and brought back his daughter. The victim

told through the sign and gesture that 4-5 people took her away by

covering her mouth. The informant further stated that he has a firm

belief that the accused Radhey Shyam Tiwary along with some other

has taken away his daughter.

3. On the basis of fardbeyan of the informant, FIR was

registered and Bhabua (Sonhan) P.S.Case No. 333 of 2012 was

instituted under Section 376/34 of the Indian Penal Code against

accused Radhey Shayam Tiwary and other unknown persons and

investigation commenced. On completion of investigation, the

Investigating Officer submitted charge sheet against Radhey Shyam

Tiwary, Jalim Bind and Girija Shankar Dubey (all appellants) under

Section 376/34 of the Indian Penal Code.

4. The Chief Judicial Magistrate took cognizance of the

offence and on 14.2.2013, the case was committed to the court of

sessions. Accordingly, charge was framed under Section 376-G/34 of

the Indian Penal Code to which the accused persons pleaded not guilty.

5. Defence of the appellants as per the statement made under

Section 313 Cr.P.C. and from documents produced by the appellants, is
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that they are not guilty and that no such incident happened and they are

being falsely implicated in the present case as there were cases going

on between appellant Radhey Shyam Tiwary and his uncle and in

collusion with his uncle he has falsely been implicated.

6. During trial altogether seven witnesses have been examined

on behalf of prosecution, they are P.W.1 Dr.Sangha Mitra Singh, P.W.2

Lalu Tiwary, P.W.3 Sushila Devi, P.W.4 Dudh Nath Tiwary

(Informant), P.W.5 Rekha Kumari, P.W.6 Ajit Kumar Singh and P.W.7

Abhay Kumar.

7. Apart from the above, following documents have been

admitted as exhibits in this case, they are Ext.1- report of doctor Sangh

Mitra Singh (P.W.1), Ext.1/A- Signature of Doctor Sangh Mitra Singh

on report of medical examination for determination of age, Ext.2-

Signature of Dudh Nath Tiwary on Fardbeyan, Ext.3- Application to

Chief Judicial Magistrate by Investigating Officer for recording of

statement of victim, Ext.4- Statement of victim (P.W.5) under Section

164 Cr.P.C., Ext.5- Fardbeyan and endorsement in writing by Abhay

Kumar on Fardbeyan.

8. On behalf of defence, following documents have been

admitted as exhibits, Ext.A- Certified copy of judgment dated

25.10.2011 in the matter of State v. Radhey Shyam, Ext.B- Certified

copy of FIR in Bhabua P.S.Case No. 101 of 2007, Ext.C- FIR of
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Bhagwanpur P.S.Case No. 83 of 2002, Ext.D- Title Suit No. 208 of

2002, Ext.E- Complaint Case No. 541 of 2002, Ext.F- Trial No. 146 of

2013, Ext.G- order in Revision Case No. 126 of 2011 to show that

there was enmity between appellant Radhey Shyam Tiwary with his

uncle because of which he has falsely been implicated in this case at

the instance of his uncle.

9. After conclusion of trial, the learned Trial Judge has

convicted the appellants under Section 376-G of the Indian Penal Code

and sentenced them, as stated above.

10. Being aggrieved by the aforesaid judgment and order, the

appeals have been filed by the appellants on various grounds.

11. Learned counsels for the appellants have assailed the

judgment on several grounds but most important ground for assailing

the judgment is that the victim girl(P.W.5) is the sole eye-witness to the

commission of gang rape but she is deaf and dumb and her statement

was recorded by producing paper to adduce her evidence in chief in

writing and thereafter she was cross-examined by putting questions in

writing but from perusal of her answers, it clearly show that she has no

understanding of the questions put to her and she has only given a tutor

answer naming the appellant and she could not answer correctly, even a

single question put forward by defence. In such a situation, conviction

of appellants, relying on evidence of P.W.5, is not just and proper. It
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has also been submitted that though her statement under Section 164

Cr.P.C. was recorded and learned court has also relied upon the same

but from perusal of her statement, which is Ext.4, it appears that she

could not answer the questions put to her by learned Magistrate by

supplying her paper and she has given her statement in writing, as such,

the statement recorded under Section 164 Cr.P.C. is also not free from

reasonable doubt. Further submission is that even if it is accepted at its

face value, it is not substantive piece of evidence and that can only be

used for corroboration. Further submission is that if her statement

under Section 164 Cr.P.C. is compared with whatever she has stated in

her evidence in chief, it will appear that she has given a tutor version as

the wording is almost same in her chief, which she has given under

Section 164 Cr.P.C.

12. On the other hand, learned counsel for the State has

opposed the above submission on the ground that she has named these

appellants as the persons who have committed gang rape and her

statement has been corroborated by her statement recorded under

Section 164 Cr.P.C. and that is the case of the prosecution as per FIR

also.

13. Learned counsel for the appellants has further submitted

that so far the version in FIR is concerned, the same is given by the

father of the victim girl and the evidence of father of victim girl
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(P.W.3) clearly shows that when she was recovered she has given

everything in writing and she is a Matriculate and on the basis of the

information he has lodged this case but at first the written statement of

the victim girl has not been brought on record by the prosecution and

that also creates a doubt about the prosecution story. Further

submission is that FIR also shows that he (informant) has a firmed

belief that appellant Radhey Shyam Tiwary has committed the offence

and all these facts make evidence of P.W.5 an impeachable piece of

evidence and the same is not trustworthy and reliable, hence no

reliance can be placed on her evidence.

14. Before going into the evidence of informant (P.W.4) and

other witnesses, on examination of evidence of P.W.5, the victim girl,

it appears that she is a deaf and dumb girl. Her statement before the

Magistrate has been recorded under Section 164 Cr.P.C. (Ext.5) and the

Magistrate has found her deaf and dumb and her statement has been

recorded in writing. So far recording of evidence of a deaf and dumb

witness is concerned, the same has been dealt with in the Indian

Evidence Act, 1872. Section 119 of the Act provides as follows:

“Witness unable to communicate verbally- A
witness who is unable to speak may give his
evidence in any other manner in which he can make
it intelligible, as by writing or by signs, but such
writing must be written and the signs made in open
Court, evidence so given shall be deemed to be oral
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evidence :

Provided that if the witness is unable to
communicate verbally, the Court shall take

assistance of an interpreter or a special educator in
recording the statement, and such statement shall
be videographed.”

The aforesaid provision has been examined by the Apex Court

in a case of State of Rajasthan vs. Darshan Singh : AIR 2012 SC

1973 where the Hon’ble Apex Court has discussed the admissibility of

evidence of such a witness in paragraphs 18, 19 21 of the judgment,

which are as follows :

“18. The object of enacting the provisions of Section
119 of the Evidence Act reveals that deaf and dumb
persons were earlier contemplated in law as idiots.
However, such a view has subsequently been changed
for the reason that modern science revealed that
persons affected with such calamities are generally
found more intelligent, and to be susceptible to far
higher culture than one was once supposed. When a
deaf and dumb person is examined in the court, the
court has to exercise due caution and take care to
ascertain before he is examined that he possesses the
requisite amount of intelligence and that he
understands the nature of an oath. On being satisfied
on this, the witness may be administered oath by
appropriate means and that also be with the assistance
of an interpreter. However, in case a person can read
and write, it is most desirable to adopt that method
being more satisfactory than any sign language. The
law required that there must be a record of signs and
not the interpretation of signs.

19. In Meesala Ramakrishna v. State of A.P., (1994) 4
SCC 182 : (1994 AIR SCW 1978), this Court has
considered the evidentiary value of a dying declaration
recorded by means of signs and nods of a person who is
not in a position to speak for any reason and held that
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the same amounts to a verbal statement and, thus, is
relevant and admissible. The Court further clarified
that „verbal‟ statement does not amount to „oral‟
statement. In view of the provisions of Section 119 of
the Evidence Act, the only requirement is that witness
may give his evidence in any manner in which he can
make it intelligible, as by writing or by signs and such
evidence can be deemed to be oral evidence within the
meaning of Section 3 of the Evidence Act. Signs and
gestures made by nods or head are admissible and such
nods and gestures are not only admissible but possess
evidentiary value.

21. To sum up, a dead 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 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.”

15. In this case prosecution evidence shows that prosecutrix is

a Matriculate, as such, it appears that the Court has adopted the method

of examining her in writing and it appears that her evidence in chief

has been produced in court in writing. It does not appear from perusal

of her evidence as to whether she had been administered oath or

evidence in chief has been filed in court on affidavit. It appears from

the evidence and order-sheet that a copy of the evidence in chief has

been provided to the defence and defence has also cross examined her

by putting questions to the victim girl (P.W.5) in writing. On perusal of
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her answers to the questions in writing, it appears that she was unable

to answer simple questions put to her, for example :

Q. Ghatna ke bad Aapko pahel pahal hosh kaha aaya ?

A. Radhey Shyam Tiwary, Girja Dubey, Jalim Bind.

Q. Aapko pahel pahal hosh ghar me aaya tha school me ?

A. Aapko Pahel pahal thora ghar me aaya tha school hai.

Considering the same, it appears that she was unable to

understand the questions, even the court has provided further chance to

her and placed the matter for cross examination on next date, so as

defence may examine her but even in spite of that it appears from

perusal of her answers in cross examination that she has no intelligence

and has no understanding of the questions put to her, i.e.,

Q. Ghatna ki bad pahle pahal hosh kahan aaya ?

A. Hamko ghatna ke bad hosh samay pahale pahal hai.

Q. Daroga ji ghar mainaye to upne unhein apna ghatna

ke bare me likh kar diya ?

A. Ghatna ke rat main aur Mas alag alag khat par soyae

thi.

16. No doubt, her statement was also recorded under Section

164 Cr.P.C. It appears from her statement whatever she has disclosed,

she has given in writing and to the Magistrate also she could not reply

properly. It also appears from the above statements under Section 164
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Cr.P.C. and her evidence in court that the victim girl though claimed to

be a Matriculate but she has no intelligence and has no understanding

of the questions, as such, the argument of defence/appellants that

whatever she has written, that is tutored and all the answers in cross

examination appear to be irrelevant, and the whole testimony of this

witness is unreliable and untrustworthy, appears to have substance.

17. P.W. 3 is the only eye-witness of the occurrence of rape

and so far other witnesses are concerned, i.e., P.Ws. 3 and 4, are

mother and father of the victim. Their evidence shows that victim girl

was not found at about 11.30 P.M. in night on her bed. Thereafter they

searched her at night and even in the morning on the next day.

Evidence of P.W.4 further shows that he has informed the same to

police. His evidence further shows that on the next day at about 3 P.M.

some boys, namely, Onkar Tiwary and Vivek Kumar Tiwary, have

informed him that the girl is lying in the school near the staircase.

Thereafter he went there and found hand of his daughter tied and she

was unconscious. Thereafter police was informed. His evidence also

disclosed that the girl in gesture has told the name of Radhey Shyam

Tiwary. At best P.W.4 appears to be the witness on the point of girl

being traceless since night and her recovery on information by two

boys, Onkar and Vivek. However, his evidence in chief also shows that

the victim girl (P.W.5) disclosed in gesture the name of Radhey Shyam
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Tiwary. This written report also shows that she named appellant

Radhey Shyam on belief. P.W.3, mother of the victim, has stated in her

chief that the victim girl (P.W.5) disclosed about name of all appellants

by gesture and also about gang rape. P.W.2 has stated in his chief that

she disclosed about gang rape by appellants in writing. Hence, PWs. 2,

3 4 do not appear to be eye-witnesses to the occurrence and they

appear to be hearsay witnesses and at best witnesses on circumstances

of her recovery.

18. Evidence of P.Ws. 2 and 3 clearly shows that the girl has

given in writing names of appellants but as submitted by learned

counsel for the appellants, the aforesaid piece of writing in which, she

named these appellants, has not been produced before the court and

even the I.O. (P.W.7) has stated that the girl has not given anything in

writing before him.

19. P.W.1 is the Doctor, who has examined the girl and she

has stated in her medical examination report (Ext.1/1) as follows :

” Name of person examined – Rekha Kumari, D/o Mr.
Dudh Nath Tiwary, vill. Kalhaura, P.S. Sonhan, Dist.

Kaimur
Place of Examination – Sadar Hospital, Bhabhu, Date of
Examination- 3.10.12
M.I (i) Tilla over ® Zygoma (ii) old scar adjacent to
lateral angle of (L) Eye
Secondary Sexual character – Developed
Dental status – 7 + 7/ 7 + 7
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Radiological Examination – (1) X-ray ® klrist AP/Lat –
IGEMS. X-ray done at KEMS Sadar Hospital Bhabua
shows complete fusion of Epiphysis with distal end of
radius and Ulna (2) X-ray Pelvis (AP) – X-ray done at
16 Ems Sadar Hospital Bhabua dated 3.10.12 shows
partial fusion of illic crest with illium”

On the basis of above clinical and radiological examination

the age of person examined is between 17 – 19 years.”

She has further stated that no bleeding was found and on the

basis of the findings arrived at there was no sign of sexual intercourse.

As per prosecution case, occurrence has taken place in the night of

1.10/2.10.2012 and the girl has been examined by doctor on 3.10.2012.

She has also stated in her cross examination that the girl was aged 17-

19 years.

20. P.W.7 is the I.O. of this case and he has stated that there

was no eye-witness of commission of rape and he has also stated about

the contradiction and improvement made in the statement of P.W.3

Sushila Devi. His cross examination further shows during investigation

that he has not recorded the statement of the girl under Section 161

Cr.P.C.

21. Submission of learned counsel for the appellants is that

evidence of P.Ws. 2 to 4 and even the victim girl shows that she was

ravished badly by the three appellants and their evidence also shows

that her clothes were torn and she was in a very precarious condition
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but the evidence of Doctor falsifies the whole prosecution case as she

has not found any sign of rape and/or any injury on her body. Further

submission is that the clothes were not produced before the police.

Even though P.W.4 has also claimed that blood was fallen at the

staircase of the school but no bloodstained soil was seized by police.

Further submission is that not a single independent witness has been

examined in this case, including the boys, namely, Onkar Tiwary and

Vivek Tiwary, who have informed about her to P.W.4, who may be the

important witnesses in this case and even no other witness has been

examined but later on prosecution has come with a developed story that

there was altercation between the victim girl and Radhey Shyam

Tiwary and, as such, the appellant had committed rape upon her but

that is only development as there was no such prosecution story in FIR.

Even the victim girl in her statement under Section 164 Cr.P.C. has not

written so.

22. There is catena of decisions of the Supreme Court that in a

case under Section 376-G IPC conviction can be held on the sole

evidence of prosecutrix. However, Hon’ble Apex Court in a case of

Mohd. Ali alias Guddu vs. State of Uttar Pradesh : (2015) 7 SCC

272, has held in para-29, as follows :

“29. Be it noted, there can be no iota of doubt that on
the basis of the sole testimony of the prosecutrix, if it
is unimpeachable and beyond reproach, a conviction
can be based. In the case at hand, the learned trial
Judge as well as the High Court have persuaded
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themselves away with this principle without
appreciating the acceptability and reliability of the
testimony of the witness. In fact, it would not be
inappropriate to say that whatever the analysis in the
impugned judgment, it would only indicate an
impropriety of approach. The prosecutrix has
deposed that she was taken from one place to the
other and remained at various houses for almost two
months. The only explanation given by her is that she
was threatened by the accused persons. It is not in her
testimony that she was confined to one place. In fact,
it has been borne out from the material on record that
she had traveled from place to place and she was
ravished a number of times. Under these
circumstances, the medical evidence gains
significance, for the examining doctor has
categorically deposed that there are no injuries on the
private parts. The delay in FIR, the non-examination
of the witnesses, the testimony of the prosecutrix, the
associated circumstances and the medical evidence,
leave a mark of doubt to treat the testimony of the
prosecutrix as so natural and truthful to inspire
confidence. It can be stated with certitude that the
evidence of the prosecutrix is not of such quality
which can be placed reliance upon.”

23. In the present case, as I have discussed above, the

evidence of the prosecutrix does not inspire confidence as from cross

examination it appears that she has no intelligence and has no

understanding about the questions put to her even in writing and she

could not answer properly any question put to her and whatever

evidence that comes in cross examination, shows that she cannot

withstand the test of cross examination. No doubt her evidence in chief

has been supported by her statement under Section 164 Cr.P.C. but that

is also in writing not in question answers form and that can be tutored
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one. It is needless to say that cross examination is inseparable part of

examination of a witness to test his impeachable character and to find

out whether her evidence is reliable or trustworthy. However, in

present case, considering her answer in cross examination, the

possibility of her evidence, being tutored and manufactured one, cannot

be ruled out, hence those evidence of P.W.5 are not free from

reasonable doubt.

24. The P.Ws. 2, 3 and 4 are the witnesses to the

circumstances of her being traceless and thereafter of recovery, but

once the evidence of P.W 5 does not appear to be reliable and

trustworthy, conviction under Section 376-G IPC only on the basis of

evidence of P.Ws. 2 to 4, which relates to circumstances of recovery,

cannot be sustained. Moreover, evidence also shows that she was

ravished by three persons and she was found hand tied condition and

her mouth gagged and also her clothes were torn but Doctor (P.W.1)

does not find any injury or sign of rape on her body. Even the torn

clothes has not been produced before the I.O. Apart from that, as per

prosecution evidence she has given in writing the names of the

appellants but paper has not been produced before the court.

25. On the other hand, from perusal of the evidence it appears

a suggestion has been given by appellant Radhey Shyam Tiwary to the

witness that he has been falsely implicated in this case at the instance
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of his uncle with whom large number of cases are going on and the

documents have also been produced in support of his defence, i.e., Ext.

A to G. Further suggestion is given to the witness that as she has some

affairs with Amrendra Kumar Tiwary, she fled away with him and

thereafter the present false and concocted case has been lodged to

implicate these appellants.

26. Learned Trial Court has convicted the appellants under

Section 376-G considering the evidence of P.W.5, the victim girl and

evidences of P.Ws. 2, 3 and 4 and it seems that the trial court was

swayed by sentiments, emotion and heinous nature of case and has not

considered the circumstances discussed above and convicted the

appellants under Section 376-G.

27. No doubt this case is heinous in nature considering the

allegation of kidnapping and thereafter gang rape of a deaf and dumb

girl but the courts are not to be swayed by sentiments, rather has to

consider the materials available on record to come to a finding on the

basis of materials available on record, specially when the evidence of

P.W.5 itself appears to be impeachable in character and not free from

reasonable doubt. As the same does not inspire confidence, the

conviction of appellants on her testimony cannot be held to be

sustainable.

28. Considering the evidence in totality, the sole testimony of
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evidence of prosecutrix about commission of gang rape by appellants

in all the above appeals, does not appear to be sustainable and, the

appellants are entitled to benefit of doubt in this case.

29. Accordingly, these appeals are allowed. The conviction and

sentence of the appellants under Section 376-G IPC are set aside. As the

appellants are in custody, they are directed to be released forthwith, if

not required in any other case.

(Vinod Kumar Sinha, J)
spal/-

AFR/NAFR
CAV DATE 22.8.2017
Uploading Date 08.09.2017
Transmission 08.09.2017
Date

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