Delhi District Court
State vs Dhan Raj Etc. on 27 April, 2015
FIR No. 317/06
PS Keshav Puram
U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc.
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE: NORTH WEST04, DELHI
Case ID:- 02404R0809672007
FIR No. 317/2006
PS Keshav Puram
U/s 292 /34 IPC & 67 of I. T Act.
State Vs Dhan Raj
Date of Institution of case : 18.12.2007
Date of Judgment : 27.04.2015
JUDGMENT:
a) Date of offence : 11.05.2006 b) Offence complained of : U/s 292 /34 IPC & Section 67 of Information Technology Act c) Name of Accused, his :1) Dhan Raj parentage & residence S/o Late Sh. Radhey Shyam Gupta Presently R/o RZ-139/9/10, Raghu Nagar, Janakpuri, Delhi 2) Ishan @ Dev S/o Sh. K.S.Rishabh, Presently R/o H.No. 404, 13th Floor, Sam Residency, Crossing Republic, Ghaziabad, U.P. 3) Neha Sharma D/o Sh. Ashok Kumar 1/14 FIR No. 317/06 PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act. State Vs Dhan Raj etc. R/o C-6/133A, Keshav Puram, Delhi. (Discharged vide order dated 23.01.2013) d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted 2/14 FIR No. 317/06 PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act. State Vs Dhan Raj etc. BRIEF FACTS AND REASONS FOR DECISION:-
1. The present FIR was registered on the statement of complainant Sh. Sachin for commission of the offence punishable u/s 292 IPC and Section 67 of Information Technology Act. It is alleged by the complainant Sachin that he was having mobile phone make Nokia 6681 with number 9818023999 and few days back he had seen a blue film at his mobile phone which has been up loaded by Dev @ Hassan who took his mobile phone from him, that in the picture one person namely Dhan Raj who is his neighbour and one girl whom he identified were seen and that after seeing the movie he felt bad hence he deleted the picture. The complainant further alleged that again on 11.05.2006 he received the same picture on his mobile phone at about 9:40 p.m & that said picture was prepared by Dhan Raj alongwith his girl friend who transmitted the same to him, that the said obscene picture had been sent to his mobile phone through mobile phone and they have also sent the same on other mobile phone. The police investigated the matter and filed report wherein it has been reported that on the identification of the complainant Sachin, the accused Dhan Raj and accused Ishan @ Dev were arrested on 12.05.2006 and the car bearing no DL 1CF 0282 used in the commission of the offence was seized, that the mobile phone make Sony Ericsson was also seized, that accused Dhan Raj has made disclosure statement and got recovered two CDs of the same picture from his residence, that the accused persons have disclosed that they have sent the MMS of that picture to their friend Deepak @ Deepu who joined the investigation and told that he has sold the said phone to one Sh. Ashok Kumar Jain, that thereafter the mobile phone was seized from the possession of Sh. Ashok Kumar Jain and sent to FSL for examination and that accused Neha was also searched and on collection of the sufficient material she was formally arrested in the present case 3/14 FIR No. 317/06 PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. and released on bail.
2. The Court took cognizance of the above-said offence u/s 292 IPC and 67 of Information Technology Act. After the arguments on charge, accused namely Neha was discharged in the present case vide order dated 12.01.2013 passed by the Ld. Predecessor Court and as a prime facie case was made out against the accused namely Dhanraj and Ishan @ Dev for offence punishable u/s 67 of Information Technology Act, charge was accordingly framed against accused persons namely Dhanraj and Ishan @ Dev to which accused persons pleaded not guilty and claimed trail.
3. To prove its case, prosecution has examined four witnesses.
4. PW-1 Sh. Sachin deposed that incident was of June, 2006, that the incident may be of 10.06.2006 but he is not confirmed about the date, that at about 8.00 PM, he along-with his friends was standing outside his house at Lawrence Road, that he received phone call from PS Keshav Puram and they called him at PS Keshav Puram, that at the time of incident, he had just passed his 12th class, that he visited PS Keshav Puram in night hours, that police officials at PS Keshav Puram inquired from him whether he knew Ishan, that he stated to them that he knew Ishan as for the last 1 or 2 years he is organizing Jagran programe alongwith Ishan, that the police officials inquired from him whether he knew anything about any MMS and he replied no, that police officials asked him to show his mobile, that he handed over his mobile phone to them and they asked him to sit outside and that after one hour they asked him to go to his house. PW-1 Sh. Sachin further deposed that police officials took his 4/14 FIR No. 317/06 PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. signatures on 1 or 2 papers, that on the next day in the morning he went to PS Keshav Puram where police officials asked him to sign on 2-3 blank papers and 1-2 written papers and when he asked the reasons they stated him to sign the same and that his father was also present there who was illiterate and on saying of his father he signed the documents.
During recording of examination in chief, MHC(M) produced 6 sealed envelopes, out of which one envelope on which Ex. 1 was written with seal of CFSL, Hyderabad was taken out. The Seal was intact which was broken and out of that envelope another envelope was taken out. On said envelope, seal of RSD was affixed but the envelop was torn from one side and on the said envelope particulars of the case were mentioned. From the envelope, one mobile phone and one CD was taken out. The CD had the words Ex. 1B 11737 written on it and it was submitted by the Ld. APP that the same could be written by CFSL official. The mobile phone was shown to the witness and on seeing the mobile phone the witness stated that the mobile phone did not belong to him.
During the cross examination the witness deposed that photocopy of bill of mobile phone marked as Mark X was shown to the witness and on seeing it the witness states that he does not remember whether the said bill belongs to his mobile phone or not. The signature at point A on the said bill was also shown to the witness and on seeing it witness states that the said signature does not belongs to him and voluntarily stated that he signed in his full name. The document Ex. PW-1/A was also shown to the witness and the witness was asked as to whether said document bear his signature at point A and B and on seeing the same the witness states that the signature at point B belongs to him but signature signature at point A does not belongs to him. The witness further stated that the signatures at point A on document marked as Mark X4, Mark X5, 5/14 FIR No. 317/06 PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. Mark X6 and Mark X7 are not his signatures. The witness denied the suggestion that abovestated documents bears his signature at the respective points and he is intentionally denying the same to be his signatures, that in the year 2006, Dev @ Ishan took his mobile phone from him and he loaded a blue film in his mobile phone, that in his abovestated mobile phone, one blue film was loaded in which one person Dhanraj alongwith one girl was shown, that he deleted the same, that on 11.05.2006 at about 9:40 p.m the same blue film was again transmitted to his mobile phone, that he came to know that the same blue film was made by Dhanraj with his friend, that the said Dhanraj transmitted the same blue film to other mobile phone also and that he lodged his complaint in this regard. The complaint Ex. PW-1/A was shown to the witness and on seeing it witness stated that he never made any such complaint to police officials. The witness further denied the suggestion that he himself with his own will handed over his mobile phone Nokia 6681 to police officials, that on 12.05.2006 on his instance police official arrested two persons namely Dhanraj and Ishan accused in the present case when they were sitting in Maruti Zen Car bearing registration no. DL 1CF 0282, that after the apprehension of these two boys mobile phone make Ericsson was recovered from the possession of accused Ishan and same was seized vide seizure memo marked as Mark X2, that those two boys were arrested and personally searched vide memo marked as mark X4 to X7 and these documents bear his signature, that Maruti Zen was seized vide memo marked as mark X3 or that it bears his signature and that he has compromised the matter with the accused persons and so he has not stated true facts.
The contents of document Ex. PW-1/A were shown and read over to the witness and on seeing the same the witness stated that he never gave any such statement. The witness further denied the suggestion that he is deposing falsely 6/14 FIR No. 317/06 PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. to save the accused persons, that police officials never called him at PS or that he never took his mobile phone into their possession against his wishes and that he never made him to sign any blank papers.
The testimony of this witness has gone unrebutted as this witness was not cross examined on behalf of accused persons namely Dhanraj and Ishan despite opportunity.
5. PW-2 ASI Tej Pal No. 6084/D proved the registration of FIR exhibited as Ex. PW-2/A in the present case bearing his signature at point A. The endorsement on tehrir is Ex. PW-2/B. The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
6. PW-3 Sh. Deepak Garg, S/o Sh. Ram Vilas Garg deposed that he does not know anything about the present case.
Ld. APP for the State was permitted to cross examine the witness as he was resiling from his statement recorded earlier and the witness deposed that police officials had inquired him about the incident of the present case. The witness denied the suggestion that he had purchased the mobile phone from Deepak Electronics, Narang Colony, that his friend Ishan @ Dev had sent one obscene picture MMS on his mobile phone, that picture of obscene MMS was prepared by his friend Dhan Raj and his friend Neha Sharma. The witness further deposed that he did not state to the police officials that he had purchased the mobile phone from Deepak Electronics, Narang Colony. Confronted with his statement marked as Mark X1 from point A to A where it is so recorded. The witness further stated that he did not state to the police officials 7/14 FIR No. 317/06 PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. that his friend Ishan @ Dev had sent one obscene picture MMS on his mobile phone. Confronted with his statement marked as Mark X1 from point B to B where it is so recorded. The witness further deposed that he did not state to the police officials that picture of obscene MMS was prepared by his friend Dhan Raj and Neha Sharma. The accused Dhanraj and Ishan @ Dev present in the Court were shown to the witness and on seeing them the witness stated that he does not know both the said persons shown to him. The witness denied the suggestion that he has compromised with the accused Dhan Raj and Ishan @ Dev, that due to compromise he is deposing falsely and that he has given his statement marked as Mark X to police officials.
The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
7. PW-4 Retired ACP Sh. Rajender Singh deposed that on 11.05.2006 Ct. Yogender Kumar came at his office and handed over to him copy of FIR No. 317/06 alongwith original rukka for further investigation, that on the next day, he alongwith complainant Sachin, Ct. Yogender and SI Rajbeer went to the spot and prepared the site plan Ex. PW-4/A bearing his signature at point A at the instance of complainant, that he recorded the statement of the witnesses and thereafter they searched the accused persons and at the instance of the complainant he arrested the accused persons namely Dhanraj and Ishan @ Dev both present before the Court (correctly identified by the witness) at A-1 Block, Keshav Puram alongwith car bearing registration number DL 1CF 0282, that he arrested both the accused persons vide arrest memo already marked as Mark X6 and X7 now exhibited as Ex. PW-4/B and Ex. PW-4/C and conducted their personal search vide memos already marked as Mark X4 and X5 and now exhibited as Ex.
8/14 FIR No. 317/06PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. PW-4/D and Ex. PW-4/E, that all memos bear his signatures at point B, that he seized the abovesaid vehicle vide seizure memo marked as mark X3 and now exhibited as Ex. PW-4/F bearing his signature at point B, that he also seized the mobile phone from accused Ishan already marked as mark X2 and now exhibited as Ex. PW-4/G bearing his signature at point B, that accused persons pointed out towards the spot where they had prepared the clipping of the obscene scene through mobile by pointing out memo Ex. PW-4/H bearing his signature at point A, that he recorded the disclosure statement of accused persons exhibited as Ex. PW-4/I & Ex. PW-4/J bearing his signature at point A, that accused took them to his residence i.e A-1/ 203, Keshav Puram and accused Dhanraj got recovered two Sony CD-R Disc Supermax 700 MB which were seized vide seizure memo Ex. PW-4/K bearing his signature at point A, that he recorded the statement of witnesses, that they brought the accused persons and the case property to PS and that the case property was deposited in Maal Khana. The witness further deposed that accused Ishan also produced ownership of the mobile i.e receipt and same was seized by him vide Ex. PW-4/L. The witness further deposed that on 14.05.2006, he seized the number plate of the car vide seizure memo Ex. PW-4/M bearing his signature at point A, that the witness Deepak disclosed that he had sold the mobile phone to Sh. Alok Jain and thereafter on 19.05.2011, he alongwith SI Rajbir went to the shop of Sh. Ashok Jain and he handed over to them one mobile phone make Nokia 7610 and same was seized by him vide seizure memo Ex. PW-4/N bearing my signature at point A, that he recorded the statement of the witnesses, that on 26.06.2006, he sent the exhibits to CFSL Hyderabad vide R/C No. 69/21 and that he recorded the statement of the witnesses.
9/14 FIR No. 317/06PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. The witness further deposed that on 20.07.2006, he formally arrested Neha Sharma vide arrest memo Ex. PW-4/O bearing his signature at point A and later on vehicle was released on superdari, that he also collected the CDR of mobile number of accused Ishan, that the photographs of the car are marked as mark P-1 to P-5 (colly) and that after completion of the investigation, he prepared the challan and filed it before the Court.
The MHC(M) produced the case property in six envelopes bearing Ex. 1 to Ex. 6 written over them which were opened one after another and the case property were duly identified by the witness. The Mobile Phone Nokia 6681 is Ex. P-1, CD is Ex. P-2, mobile phone Sony Ericsson is Ex. P-3, CDs are Ex. P-4 (colly), the number plate bearing no. DL 1CF 0282 is Ex. P-5 and one more CD is Ex. P-6. The witness correctly identified the same.
During the cross examination the witness deposed that all the documents in the case are not in his handwriting but the same are in handwriting of SI Rajbir and voluntarily stated that the above said documents were prepared under his direction and dictation by SI Rajbir. The witness denied the suggestion that Ex.PW-4/I, Ex.PW-4/G and Ex.PW-4/F do not bear the signature of SI Rajbir. The witness further deposed that on these documents he has not signed over his name as required and voluntarily stated that his signatures appear under his name, that signature of SI Rajbir on documents Ex.PW-4/N and Ex.PW-4/M appear at the right place over his name, that he apprehended accused Dhanraj from A1 Block Market, Near Mandir, Keshav Puram and that he has not mentioned the specific place of arrest of both the accused. The witness denied the suggestion that nothing was recovered from the accused persons, that they have been falsely implicated in the present case, that accused persons were called to the police station and they have been falsely implicated in present 10/14 FIR No. 317/06 PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. case.
8. Vide order dated 23.03.2015 passed by this Court, the prosecution evidence was closed and matter was listed for statement of accused persons.
9. On 27.04.2015, statement of accused persons was recorded and all the incriminating evidence was put to the accused persons u/s 313 read with Section 281 of code of criminal procedure in which accused persons stated that they are innocent and they have been falsely implicated in the present case.
10. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued by Ld. Defence Counsel on behalf of accused persons they they are innocent and they have been falsely implicated in this case by the police officials and that nothing was recovered from their possession.
11. The case of the prosecution is that the accused persons transmitted a film containing sexually explicit act or conduct in electronic form on the mobile phone of complainant Sachin and of another prosecution witness Deepak. Perusal of testimony of PW-1 complainant Sachin shows that PW1 told the police that he does not know anything about any MMS. PW-1 Sachin further testified that the police took his mobile phone from him and that the mobile phone shown to him during the evidence is not the same mobile which was taken by police from him. Record further shows that the prosecution failed to extract anything favouring its case despite cross examining the PW-1 as the said witness failed to identify the 11/14 FIR No. 317/06 PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. bill of his mobile phone and deposed that the signatures appearing on the bill marked as mark X do not belongs to him. This witness further denied his signatures on the various arrest, personal search and seizure memos and thus shattered the prosecution version of seizing of case property and arresting the accused persons in his presence. It is further clear from the testimony of PW-1 that the PW-1 flatly denied the fact that in the year 2006 accused Dev @ Ishan took his mobile phone from him, that in the said mobile one blue film was loaded in which one person namely Dhan Raj alongwith one girl was shown, that he deleted the same, that on 11.05.2006 at about 9:40 p.m the same blue film was again transmitted to his mobile phone, that he came to know that the same blue film was made by Dhanraj with his friend, that the said Dhanraj transmitted the same blue film to other mobile phone also and that he lodged his complaint in this regard. This witness further deposed that the complaint Ex. PW-1/A was never made by him to the police officials and further denied the suggestion that he himself with his own will handed over his mobile phone Nokia 6681 to police officials, that on 12.05.2006 on his instance police official arrested two persons namely Dhanraj and Ishan accused in the present case when they were sitting in Maruti Zen Car bearing registration no. DL 1CF 0282 and that after the apprehension of these two boys mobile phone make Ericsson was recovered from the possession of accused Ishan.
This witness firmly denied suggestions that he is deposing falsely to save the accused persons, that police officials never called him at PS or that the police officials never took his mobile phone into their possession against his wishes and that they never made him sign any blank papers. The testimony of aforesaid witness shows that the prosecution version as alleged has been shattered in all material particulars.
12/14 FIR No. 317/06PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. Similarly, another star witness of the prosecution PW-3 Deepak Garg deposed that he does not know anything about the present case and testified during cross examination conducted on behalf of the state that police officials had inquired him about the incident of the present case. This witness denied the suggestion that he had purchased the mobile phone from Deepak Electronics, Narang Colony, that his friend Ishan @ Dev had sent one obscene picture MMS on his mobile phone, that picture of obscene MMS was prepared by his friend Dhan Raj and his friend Neha Sharma. The witness further deposed that he did not state to the police officials that he had purchased the mobile phone from Deepak Electronics, Narang Colony. Confronted with his statement marked as Mark X1 from point A to A where it is so recorded and that he did not state to the police officials that his friend Ishan @ Dev had sent one obscene picture MMS on his mobile phone. The witness further deposed that he did not state to the police officials that picture of obscene MMS was prepared by his friend Dhan Raj and Neha Sharma. This witness failed to identify the accused Dhanraj and Ishan @ Dev present in the Court when shown to him in the Court and submitted that he does not know both the said persons shown to him. The witness denied the suggestion that he has compromised with the accused Dhan Raj and Ishan @ Dev, that due to compromise he is deposing falsely and that he has given his statement marked as Mark X to police officials. The aforesaid testimony of PW-3 Deepak shows this witness has shattered the prosecution version in all respects including the identity of the accused persons and the prosecution has failed to extract any substance in its favour despite cross examination. The afore- discussed testimonies of the only material witnesses show that a grave doubt is cast upon the identity of the mobile phones seized by the police officials as well as upon the entire proceedings conducted by the police during the investigation 13/14 FIR No. 317/06 PS Keshav Puram U/s 292 /34IPC & 67 of I. T Act.
State Vs Dhan Raj etc. of this case which makes the entire prosecution version suspicious.
It is thus apparent from the testimony of PW-1 and PW-2 that prosecution failed to establish its case against the accused Dhanraj and Ishan @ Dev that they transmitted sexually explicit act/ conduct in electronic form on the mobile phone of the PW-1 Sachin and PW-2 Deepak. The testimony of PW-1 and PW-2 indicates that prosecution failed to establish the identity of mobile phone of the complainant Sachin and that of PW-2 Deepak on which the lewd MMS was allegedly transmitted, the fact that lewd MMS was transmitted twice by the accused Ishan @ Dev on the mobile phone of complainant PW-1 and also on the mobile phone of PW-2 Deepak, that accused Dhanraj transmitted the MMS to other mobile phones and that the blue film was made by accused Dhanraj with his friend.
12. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the accused persons beyond reasonable doubts. Accordingly, accused persons namely Dhan Raj and Ishan @ Dev are acquitted of the charge leveled against them. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Superdarinama if any be cancelled. File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABAS)
today i.e on 27.04.2015 MM-04/NORTH WEST-04):DELHI
27.04.2015
14/14