Delhi District Court
Sc No. 44/14 Fir No.340/11 State vs Maninder Singh @ Lucky Page No. 1/38 on 22 August, 2016
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADDITIONAL SESSIONS JUDGE05, WEST, TIS
HAZARI COURTS, DELHI.
IN THE MATTER OF
CASE NO.57162/16
SC NO. 44/14 & OLD NO. 19/13
FIR No.340/11
P.S NIHAL VIHAR
U/S 306/511/107/109/509/506/354/366A/34 IPC
& 67/67A I.T Act
STATE
VERSUS
(1) MANINDER SINGH @ LUCKY
S/O NARENDER SINGH
R/O RZD65, NIHAL VIHAR,
DELHI.
(2) JITENDER KUMAR @ JEETU
S/O RAMESH KUMAR
R/O RZD58, NIHAL VIHAR,
DELHI.
(3) GURPREET SINGH @ GOPI
S/O HARVINDER SINGH
R/O RZD65, NIHAL VIHAR,
DELHI.
DATE OF INSTITUTION : 21.02.2013
DATE OF RESERVING THE ORDER : 16.08.2016
DATE OF DECISION : 22.08.2016
SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 1/38
JUDGEMENT
1. The essential facts of the present case are that on receipt of intimation from Balaji Action Hospital on 30.12.2011 about the admission of prosecutrix, ASI Inder Pal alongwith Ct.Diwan went to Balaji Action Hospital and he collected the MLC of prosecutrix D/o Mohd.Yakoob and the doctor declared the patient "Unfit for Statement". On the MLC, the history of patient was given to the effect that the patient was hanging by Dupatta from ceiling fan at home. Father of the injured was directed to intimate the ASI when the patient regained her consciousness. Accordingly, father of prosecutrix gave intimation to the ASI that prosecutrix had regained her consciousness and ASI Inder Pal again went to Balaji Action Hospital and one written complaint was given by the complainant that she is residing at H.No. RZD60, Nihal Vihar, Delhi alongwith her parents and her date of birth is 04.07.1994. She is studying in SKV No.2, Madi Pur in 12th Class. About 10 days back, i.e. on 20.12.2011, Jeetu has took her photograph from the album as Jeetu used to visit her house and he has posted the photograph on the Internet in a wrong way and due to this, she has been SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 2/38 defamed. She has further stated that alongwith Jeetu, Teetu and Amit also misused her photograph and when her father came to know about this, she has tried to commit suicide.
2. On the statement of the complainant, FIR no. 340/11 of PS Nihal Vihar U/s 306/ 511/ 107/ 109/ 509/ 506/ 354/ 366A/ 34 IPC & 67/67A I.T Act was registered and investigation was carried out.
3. During investigation, further statement of the complainant U/s 161 Cr.P.C. was recorded. During investigation, statement of the complainant U/s 164 Cr.P.C. was also recorded wherein she has stated that her date of birth is 03.08.1994 and the boy namely Lucky was residing in the same locality. He is working as a salesman in Shastri Nagar and he had be friended her and used to talk frequently. About 1½ months back, while she was coming back from her school, Lucky asked her that his Bhabhi was calling her. Thereafter, she reached his house but his bhabhi was not there at the house. Lucky was alone at the house. Thereafter, Lucky gave her water to drink and as she had taken the same, she felt dizziness. Thereafter, he started making video of her. He was having a mobile phone of Gopi. She SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 3/38 requested him not to make the video, but he told her that he is making it just for fun sake and would delete it. She has further stated that since she was not feeling comfortable/feeling dizziness, she could not resist. Thereafter, after sometime, as the effect of intoxicant substance which he had given her had reduced, she left for her house. She has further stated that thereafter, after a day or two, she went to the shop of Gopi and he told her that he had got her MMS/video which Lucky had made. She requested him to delete the video but Gopi told her that he does not have the video with him but he knew about it. She has further stated that thereafter, jeetu showed her the said video and told her that she should establish physical relations with him, otherwise, he would show the video to all the persons of the locality. He also told her that he had also placed the video on the Internet. She has further stated that on 28.12.2011, she decided to commit suicide and tied a Chunni around her neck and decided to kill herself by getting hanged from the fan. Subsequently, she found herself admitted in the hospital. The marks of hanging are seen on her neck.
4. During investigation, accused persons were arrested and their disclosure statements were recorded. From the SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 4/38 possession of Gurpreet Singh @ Gopi, Mobile phone of Micromax 510 with Dual Sim and memory card was recovered. Accused Gopi has also disclosed that Lucky has made obscene video clip from his mobile phone. During investigation, mobile number 9582248312 in the ownership of Gurpreet Singh and CAF was taken. Mobile number 8750273867 in the ownership of Mohd.Yusuf and CAF was also taken. Both the abovesaid phones were sent to FSL, Rohini. Date of birth of the complainant was verified from the Govt.Sr.School, Madi Pur, Delhi and the same is 03.08.1994. Thereafter, Chargesheet for the offence U/s 306/ 511/ 107/ 109/ 509/ 506/ 354/ 366A/ 34 IPC & 67/67A I.T Act was filed against the accused persons.
5. Charge for the offence U/s 366A/34 IPC, 67 of Information Technology Act, 2000, 67A of Information Technology Act, 2000, U/s 509/34 IPC and U/s 506/34 IPC was framed against the accused persons by this court on 11.02.2014, to which they pleaded not guilty and claimed trial.
6. To prove its case, the prosecution has examined as many as 19 witnesses, which are as follows :
PW1 Smt.Yasmin, PW2 Sh.Babu @ Mehtab, PW3 SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 5/38 Sh.Aftab, PW4 prosecutrix, PW5 Smt.Arti, PW6 Dr.Virendra Kumar, PW7 Dr.Sandhya Koche, PW8 Sh.Israr Babu, PW9 HC Satbir Yadav, PW10 Ct.Diwan Singh, PW11 Sh.Rajeev Sharda, PW12 HC Vijay Singh, PW13 Sh.Sumit Dass, PW14 HC Raju Lal, PW15 SI Inder Pal, PW16 HC Naresh Kumar, PW17 HC Rajesh Kumar, PW18 Insp.C.L.Meena and PW19 Sh.Sarvesh Kumar.
7. PW1 Smt.Yasmin has deposed that Farhin is her daughter. She did not remember the date and month of the incident, however it was the year 2011 and those were winter days, when she came down stairs room at about 11 PM /12 mid night, she saw that her daughter Farhin was hanging with ceiling. She immediately called her son Babu and he immediately came there. She has further stated that she with the help of Babu untied the ligature i.e. dupatta and took her down. She alongwith her husband took Farhin to Balaji Hospital, Paschim Vihar, Delhi. Thereafter police met her. She had shown the place of incident where her daughter was hanging to the police. She had produced the 'Dupatta' before the police and the police seized the same vide seizure memo which is proved as Ex.PW1/A. This witness has proved SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 6/38 the Dupatta of Coffee and dark green colour as Ex. P.1.
8. PW2 Sh.Babu @ Mehtab has deposed that in the summer days and at about 7 PM, he came to his house after visiting his friends. As soon as, he entered in the staircase of his house, He heard voice of his mother and she asked him to see his sister. He came down at ground floor room and saw one rope was hanging from the ceiling. He called but nobody answered from the room. He pushed the door twice or thrice but the door was bolted from inside, however, on his pushing hard, the latch of door broken. He entered into the room and saw that the door of another adjacent room was also bolted from inside. He strike on door and thereafter, the door opened and saw that his sister was lying hanging with ceiling with rope. Thereafter, he untied the rope and taken down his sister. He had called taxi and took his sister to Balaji Hospital and admitted her there. Police met him at the hospital and IO made enquiries from him and recorded his statement.
This witness was cross examined by the Ld.Addl. P.P.for the State and in his crossexamination he has stated that he could not say if the date of incident was 29.12.2011. He has denied the suggestion put to him by SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 7/38 the Ld.Addl. P.P.for the State that the aforesaid incident took place in the night. In response to the question put to him by the Ld.Addl. P.P.for the State that he has told IO in his statement that he has untied chunni from the neck of prosecutrix while standing on the table and no where he has stated that it was a rope, this witness has replied that it was chunni but it was hanging in twisted manner and looking like rope.
This witness has identified the Chunni as Ex. P.1. This witness has admitted in the crossexamination done by the Ld.Addl. P.P.for the State that he had called the taxi in which his parents took prosecutrix to the hospital.
9. PW3 Sh.Aftab has deposed that he knew all three accused persons namely Jeetu, Lucky and Gopi, as they are his neighbours. In December, 2011, he went to the shop of Gopi and he told him that he is having a video clip and he will sent the clip through bluetooth. He sent the video clip to his mobile phone but he could not see that clip at that time. Later on, he saw clip on his mobile phone and find that the said mobile clip was having obscene video of his sister. He has further stated that he did not disclose about it to anybody, as disclosing about SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 8/38 the clip would defame his sister. He has further stated that on the night of 2930.12.2011, his sister attempted to commit suicide due to the said incident of obscene video clip. He told about the video clip to his family and on the next day, he handed over his mobile phone along with memory card and Sim card to police. This witness has proved the seizure memo of mobile phone as Ex.PW 3/A. This witness has identified black colour Nokia Mobile, Sim Card of Idea Company and memory card of Sandisk Company as Ex.PW3/P.1, Ex.PW3/P.2, Ex.PW 3/P.3 and Ex.PW3/P.4.
10.PW4 prosecutrix has deposed that she has studied upto 11th standard and having three brothers and she is the youngest one in her family. Her mother did not go out of the house for any job. Her date of birth is 03.08.1994 and she is residing in house number RZD60, Nihal Vihar. She knew all three accused persons as they are resident of same gali, where her house is situated. She knew their names as Lucky Singh, Jeetu and Gurpreet Singh. She has further stated that when she was coming from the school, accused Lucky met her at the corner near the shop of Gopi and told her that his sisterinlaw is calling her. She did not remember the date but the month was SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 9/38 November, 2011. She accompanied Lucky to his house, which was situated on the second floor of shop of Gurpreet Singh @ Gopi. Lucky was tenant at the room of Gupreet Singh @ Gopi. At that time, lucky was appearing in drunk condition. She did not find Bhabhi (sisterinlaw) of Lucky in the house. She has further stated that they started talking and thereafter, Lucky made her video clip with the mobile phone of Gurpreet Singh @ Gopi with her consent and at that time she was in her senses. That video clip was made by accused Lucky when she was in naked condition. About 34 PM, she left the room.
This witness has further stated that on the next day, accused Lucky told her that video clip is personal and he will delete the video clip. Prior to that accused Gurpreet Singh @ Gopi had already down loaded that video clip on his computer. Thereafter, the said video clip was sent to accused Jeetu. Accused Lucky had told her about down loading of the video clip by Gurpreet Singh @ Gopi and passing the same to Jeetu. Accused Jeetu had shown her obscene video clip to the children in the gali and she came to know about this fact from the children of gali. She has further stated that thereafter, SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 10/38 accused Jeetu started following her to her school and he started pressurizing her to establish physical relations with him otherwise, he will upload her video on the Internet. Lateron, that video clip came into knowledge of her father and due to the reason of the circulation of video clip, she attempted to commit suicide, on the night of 2930.12.2011. She has further stated that at about 1111:30 PM, she was admitted in Balaji Hospital.
This witness has further stated that on 30.12.2011, police officials came at Balaji Hospital and met her and recorded her statement. This witness again stated that at that time, she was not in her senses and therefore, she could not tell what statement of her was recorded by police. She has further stated that police met her on 31.12.2011 and on 02.01.2012 her statement was recorded before the Magistrate. However, she could not identify her signatures on statement. She has further stated that accused Lucky never disclosed about her relations to anybody else and he had made her video clip for personal use and it was Gurpreet Singh @ Gopi, who leaked this video clip. She had never seen that video clip. Once accused Jeetu came to gali and tried to show her the video clip but she refused. Accused Jeetu had also SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 11/38 shown the video clip to the children of the locality in her presence. This witness identified the black colour Micromax Camera Mobile as Ex. PW4/P1 mobile phone of Gurpreet Singh @ Gopi, which was used by the accused Lucky for making her video clip. She has further stated that accused Jeetu told children of the gali to depose in the court that nobody had shown any video clip to them. Accused Jeetu used to visit near her school and he used to pass vulgar comments on her. This witness has identified her signatures on the statement Ex.PW4/B at point A. This witness was crossexamined by the Ld.Addl. P.P.for the State as she has not stated certain facts which were mentioned in her previous statements U/s 161 Cr.P.C. and U/s 164 Cr.P.C. In response to a question put to her by the Ld.Addl. P.P.for the State, the witness has stated that she did not know what was recorded by the police as she was not in her senses. In her cross examination done by the Ld.Addl. P.P.for the State, this witness has admitted that on 02.01.2012 her statement was recorded by the Ld.M.M. and she has stated before the Ld.M.M. that when she reached at the house of Lucky on his calling, Lucky gave her water to drink and when SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 12/38 she had taken the same, she felt dizziness and thereafter, Lucky started making video of her. In response to one question put to her by the Ld.Addl. P.P.for the State, this witness has stated that she had told the accused not to make her video but he did not stop and she was fully conscious. She has further stated that she had told falsely before the Ld.M.M. in her statement that Lucky gave her water and after drinking the same, she started feeling dizziness and thereafter, Lucky made her video clip. She has denied the suggestion put to her by the Ld.Addl. P.P.for the State that accused Lucky made her video when she was not in her senses and she never gave any consent to him for making the video and she had deposed this fact in her statements before the Ld.M.M. and police.
11.PW5 Smt.Arti has produced the record of prosecutrix and she was admitted in their school on 27.04.2004 vide Admission no. 6057 in Class 6th E. She has further stated that as per record, the date of birth of prosecutrix is 03.08.1994. This witness has proved the photocopy of Admission register no.7 for the period of 15.04.2002 to 20.03.2006 containing relevant entry no. 6057 as Ex.PW 5/A, photocopy of computerized attendance register showing name of prosecutrix at point A as Ex.PW5/B, SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 13/38 photocopy of attendance register for the month of December, 2011 as Ex.PW5/C, application form for the admission of prosecutrix as Ex.PW5/D, School Leaving Certificate as Ex.PW5/E, attested copy of CBSE Certificate of 10th Class of prosecutrix as Ex.PW5/F.
12.PW6 Dr.Virendra Kumar has examined prosecutrix on 29.12.2011 as she was brought by her father with the alleged history of hanging by Dupatta by ceiling fan at home at approx.09:30 AM on 29.12.2011. She has further stated that she examined her and on local examination, ligature mark was found around the neck from right anterior to left antero lateral position of neck. She has further stated that at the time of examination, the patient was unconscious and irritable. This witness has proved the MLC no. 2935/11 of the patient prosecutrix as Ex.PW6/A.
13.PW7 Dr.Sandhya Koche has identified her signatures and stamp at point B regarding admission of prosecutrix in the ward.
14.PW8 Sh.Israr Babu has proved the CDR of Mobile Number 9582248312 for the period from 25.12.2011 to 02.01.2012 as Ex. PW8/A and stated that as per record, the said number was allotted in the name of Gurpreet SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 14/38 Singh. He has also identified the copy of certified customer application form alongwith copy of ID Proof as Ex.PW8/B and certificate U/s 65B of Evidence Act and the same is Ex. PW8/C.
15.PW9 HC Satbir Yadav has proved the computerized copy of FIR as Ex.PW9/A and his endorsement on the rukka as Ex.PW9/B.
16.PW10 Ct.Diwan Singh has deposed that on 29.12.2011, at about 1.35 AM (night), a call was received to ASI Inder Pal and he alongwith him had reached at Action Balaji Hospital, Paschim Vihar, Delhi where one prosecutrix D/o Mohd. Yakoob was found admitted and on her MLC the doctor concerned had opined as "Unfit for statement". The ASI Inder Pal had directed Mr.Yakoob to inform him as soon as the patient prosecutrix got conscious. The MLC of the patient prosecutrix was obtained by the IO. He has further stated that on 30.12.2011, he alongwith ASI Inder Pal had reached the H.No. RZD60, Nihal Vihar, Delhi where mother of prosecutrix met and had produced one green and Kathai colour Chunni which was kept in a cloth by ASI Inder Pal. A parcel was prepared and sealed with the seal of IP and taken into possession vide seizure memo which is proved as Ex.PW1/A. This witness has SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 15/38 proved the Chunni as Ex.P.1.
17.PW11 Sh.Rajeev Sharda has proved the customer application form of Mobile number 9555880897 and certified copy of the same alongwith copy of I.D.Card as Ex. PW11/A. He has further stated that as per company records, the said connection is issued in the name of Sh.Anmol Ram.
18.PW12 HC Vijay Singh has deposed that on 02.01.2012, at about 7:45 PM, Inspector C.L. Meena prepared raiding party in the present case consisting of himself, Ct. Naresh and Ct. Chandersekhar and left the PS in a private vehicle at about 7:50/7:55 PM and reached in DBlock, Nihal Vihar at RZD65, Nihal Vihar, which was a shop and IO made inquiries about the boy namely Lucky. It was learnt that Lucky was residing as a tenant at second floor of RZD65, Nihal Vihar. They went upstairs to second floor and the door was opened by a lady, who claimed herself to be mother of Lucky. Brother of Lucky was also found there and accused Lucky was also present there. The arrest memo of Maninder Singh @ Lucky is proved as Ex.PW12/A and his personal search memo is proved as Ex. PW12/B. The IO interrogated the accused and recorded his disclosure statement, which is proved as SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 16/38 Ex.PW12/C. This witness has further stated that as per the disclosure statement accused Maninder @ Lucky led them to ground floor where accused Gopi used to reside. There was shop at the house of Gopi, where father of Gopi was sitting. In the meanwhile, Gopi came at the shop. On the identification of Maninder @ Lucky, accused Gurpreet Singh was arrested vide memo which is proved as Ex.PW12/D, his personal search memo is proved as Ex.PW12/E and his disclosure statement is proved as Ex.PW12/F. He has further stated that on cursory search one Micromax X510, Black Colour, dual sim mobile was recovered from the right side pocket of the pent of Gurpreet Singh @ Gopi. On opening the mobile phone, it was found containing one sim card of Vodafone company and other sim card of Reliance company. There was one memory card in the phone. The IO seized the above articles after making its pullanda, which was sealed with the seal of VK. The seizure memo of mobile phone is proved as Ex.PW12/G. This witness has further stated that thereafter, both the accused persons led the police party to the H.No.RZD58, Nihal Vihar i.e. house of accused Jitu.
SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 17/38Father of accused Jitu met there alongwith accused Jitu. After narrating the grounds of arrest, IO arrested accused Jitu and conducted his personal search. The arrest memo of accused Jitu is proved as Ex.PW12/H and his personal search memo is proved as Ex.PW12/I. IO interrogated the accused and recorded his disclosure statement. In the personal search of accused Jeetu which was taken by Ct.Chandershekhar, nothing was recovered.
This witness has further stated that on the next day i.e. 03.01.2012, he alongwith IO, Ct.Naresh and Ct.Chander Shekhar participated the investigation of the present case and the accused Maninder @ Lucky was taken out from the lock up and they reached at RZD65, Second Floor, Nihal Vihar, where the accused Maninder @ Lucky had prepared the obscene of video clip of the complainant. The supplementary disclosure statement of accused Maninder @ Lucky is proved as Ex.PW12/J. The pointing out memo is proved as Ex.PW12/K. This witness has proved the Micromax Camera Mobile phone as Ex. PW4/P.1.
19.PW13 Sh.Sumit Dass has proved the statement of Prosecutrix as Ex. PW4/A, application of the IO for recording statement of the prosecutrix u/s 164 Cr.P.C. as SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 18/38 Ex.PW13/A and application of the IO for providing copy of the TIP proceedings as Ex.PW13/B.
20.PW14 HC Raju Lal has deposed that on 30.12.2011, ASI Inderpal deposited one sealed pullanda under present case FIR duly sealed with the seal of IP through copy of seizure memo and in this connection, he made entry in register no. 19 at srl.no. 556. The photocopy of the entry is proved as Ex.PW14/A. He has further stated that on 01.01.2012, Insp. C.L.Meena deposited one sealed pullanda of Nokia phone under present case FIR duly sealed with the seal of VK through copy of seizure memo and in this connection, he made entry in register no. 19 at srl.no. 549. The photocopy of the entry is proved as Ex.PW14/B. This witness has further stated that on 02.01.2012, Insp. C.L.Meena deposited one sealed pullanda of Micromax mobile phone under present case FIR duly sealed with the seal of VK through copy of seizure memo and in this connection, he made entry in register no. 19 at srl.no. 549A. The photocopy of the entry is proved as Ex.PW14/C. He has further stated that on 31.01.2012, IO/Insp.C.L.Meena took both abovesaid pullandas of mobile phones for depositing the same to FSL Rohini vide RC no. 16/21/12. After SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 19/38 depositing the above articles at FSL, the IO deposited the acknowledgment issued by FSL authorities. In this regard, he made entry in register no. 19 against srl.no. 549 already exhibited Ex.PW14/B. This witness has also proved the photocopy of the RC as Ex.PW14/D and copy of acknowledge as Ex.PW14/E.
21.PW15 SI Inder Pal has deposed that on 30.12.11 at about 1.35 AM (night) DD no.6A was received regarding admission of a female at Balaji Action Hospital, Paschim Vihar due to hanging. Thereafter, he along with Ct.Diwan went to Balaji Action Hospital where female namely Fareen daughter of Mohd.Yakoob was found admitted vide MLC no.2935/11. He collected MLC of the Prosecutrix. The doctor opined the patient unfit for statement. Father of the prosecutrix was presented in the hospital and he had instructed him to inform him after prosecutrix become fit. He has further stated that he along with Ct.Diwan went to the house of prosecutrix at Nihal Vihar where the mother of prosecutrix met them and she produced one chuni through which the hanging was made by prosecutrix. He prepared pullanda of chuni and sealed the same with the seal of IP and seized the pullanda of chuni through seizure memo vide DD no.6A, SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 20/38 which is proved as Ex.PW1/A. This witness has further stated that in the evening after getting the information from Mohd.Yaqoob, he along with Ct.Diwan went to Balaji Action Hospital. The victim gave a written complaint which is proved as Ex.PW4/B. He made endorsement on Ex.PW4/B which is proved as Ex.PW 15/A and gave the same to Duty officer for getting the FIR registered. After registration of FIR, investigation of case was marked to Inspector C.L.Meena.
22.PW16 HC Naresh Kumar has deposed that on 02.01.2012, he along with HC Vijay Singh, Ct.Chandrasekhar had joined the investigation in the present case with IO Inspector C.L. Meena. Inspector C.L. Meena organized the raiding party consisting of aforesaid police officials and left the PS at about 7:45 PM in a private Qualis car and reached RZD65, Nihal Vihar, Delhi. On the ground floor of RZD65, Nihal Vihar, there was a shop and they made inquiries from the person, who was present in the shop about the whereabouts of one person namely Lucky. The said person, who was present in the shop informed them that Lucky used to reside on the 2nd floor of the said house. Thereafter, all the members of raiding party went up stairs and reached SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 21/38 second floor and Inspector C.L. Meena called Lucky at the door of the house and he made inquiries from him and he disclosed his name as Maninder Singh @ Lucky. Lucky was further interrogated and arrested in this case vide arrest memo which is proved as Ex.PW12/A, and his personal search was conducted vide memo which is proved as Ex.PW12/B. Accused was further interrogated and during interrogation he voluntarily made his disclosure statement which was reduced in writing and same is proved as Ex.PW12/C. This witness has further stated that thereafter, they came out from 2nd floor of the house of RZD65, Nihal Vihar along with the arrested accused Maninder Singh @ Lucky and reached at ground floor in the shop. In the shop, two persons were found sitting and on the pointing out of Maninder Singh @ Lucky one another person was apprehended, who disclosed his name Gurpreet Singh @ Gopi and he was interrogated and arrested vide arrest memo which is proved as Ex.PW 12/D and his personal search was also conducted vide memo which is proved as Ex.PW12/E. During search one mobile phone Micromax X510 of black colour was recovered. The said mobile phone was checked and found SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 22/38 two Sims and one memory card. One Sim is of Reliance and another Sim is of Vodafone. The said mobile phone was kept in a pullanda after noted down the IMEI numbers and sealed with the seal of VK and took into possession vide seizure memo which is proved as Ex.PW 12/G. The disclosure statement of accused Gurpreet @ Gopi was also recorded, which is proved as Ex.PW12/F. This witness has further stated that thereafter, they left the shop along with both the accused and they led the police party to H. No. RZD58, Nihal Vihar. On the ground floor of the said house, two persons were found present and both the accused pointed towards one person, who disclosed his name as Jitender Kumar @ Jeetu, who was sitting alongwith his father. Jitender Kumar @ Jeetu was interrogated and arrested vide arrest memo which is proved as Ex.PW12/H and his personal search was conducted vide memo which is proved as Ex.PW12/I. Accused Jitender @ Jeetu further interrogated and he disclosed his disclosure statement, which is proved as Ex.PW12/DA. The information of arrest of all the accused were given to their relatives. This witness has further stated that on 03.01.2012, accused Maninder @ Lucky was again taken SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 23/38 out from lockup by the IO and he alongwith HC Vijay and Ct. Chandrshekhar joined the investigation. Accused Maninder @ Lucky was again interrogated and made the subsequent disclosure which is proved as Ex.PW12/J. As per the disclosure of the accused, he again led the police party to his house in a room constructed at top floor of the house and pointed the place, where he had prepared video clip from the mobile phone of Gurpreet Singh @ Gopi. Thereafter, they came back at PS and from there all the three accused persons were brought to Tis Hazari Courts and produced in the concerned Court. Accused Gurpreet Singh @ Gopi and Jitender @ Jeetu were sent to JC and accused Maninder Singh @ Lucky was remanded for one day police custody. This witness has proved the mobile phone as Ex. PW4/P.1.
23.PW17 HC Rajesh Kumar has proved the DD no. 6 dt. 30.12.2011 as Ex. PW17/A regarding the information that Prosecutrix D/o Mohd.Yaqub had hanged herself at the house and admitted at Balaji Action hospital vide MLC no. 2935/11.
24.PW18 Insp.C.L.Meena has deposed that on 31.12.2011 he had reached the house of complainant Farheen and prepared site plan of the spot which is proved as Ex.PW SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 24/38 1/DA, recorded at the instance of Yasmin. He has further stated that on 01.01.2012 Aftaab brother of prosecutrix came in PS and produced a mobile handset make Nokia and informed that the mobile phone set was containing MMS of his sister allegedly sent by Gopi to him and he seized the said mobile phone vide memo Ex. PW3/A. He has further stated that on 02.01.2012 he produced the prosecutrix before the court of Ld.M.M. and her statement was recorded before the Ld.M.M. which is proved as Ex. PW4/A. This witness has proved the arrest memo of accused Maninder Singh @ Lucky as Ex.PW12/A, his personal search memo Ex.PW12/B and his disclosure statement Ex.PW12/C, that of accused Gurpreet Singh @ Gopi as Ex.PW12/D, his personal search memo as Ex.PW12/E and his disclosure statement as Ex. PW12/F and that of Jitender Singh @ Jeetu as Ex. PW12/H, his personal search memo Ex. PW12/I and his disclosure statement Ex. PW12/DA and that of supplementary statement of accused Maninder Singh as Ex. PW12/J. He has also proved the pointing out memo of the place where accused Lucky had prepared the MMS of the prosecutrix as Ex. PW12/K. He has further stated that SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 25/38 during investigation, he had collected the age proof of prosecutrix and her date of birth was found mentioned in the certificate as 03.08.1994 and proved the said certificate as Ex. PW5/D. He has further stated that he obtained the call details of both the mobile phones including CAF from service provider. This witness has proved the CAF in respect of accused Gopi's mobile number 9582248312 as Ex. PW8/B, CDR as Ex. PW8/A and Certificate U/s 65B of the Evidence Act as Ex. PW8/C. He has also proved the CAF in respect of mobile phone produced by Aftab as Mark PW18/X, the CDR as Ex. PW18/Y and Certificate of service provider as Mark PW18/Z. This witness has also identified the black colour Nokia Mobile phone, SIM Card of Idea Company and Memory Card of Sandisk Company as Ex. PW3/P.1, Ex. PW3/P.2 and Ex. PW 3/P.3, CD containing the video clip of MMS of prosecutrix as ex.PW3/P.4 and one black colour micromax mobile phone, two Sim Cards of vodafone and reliance company and memory card as Ex. P.4/P.1 (colly.).
25.PW19 Sh.Sarvesh Kumar has proved the CAF record in respect of Mobile no. 8750273867 which has been issued SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 26/38 in the name of Mohd.Yusuf as Ex. PW19/A, the photocopy of I.D Prood as Mark PW19/A. This witness has identified the signatures of Sh.Amarnath who had issued the Certificate U/s 65B of Indian Evidence Act and the same is Ex. PW19/B. He has further stated that CDR of the above referred mobile number from 25.12.2011 to 01.01.2012 has already been provided to the police on 06.03.2012 and the requisition of the police is Mark PW 18/Y.
26. I have heard Sh.Anurag Jain, ld. Counsel for accused Gurpreet Singh @ Gopi, Sh.Mahender Singh, ld. Counself or accused Jitender @ Jeetu and Sh.S.P.S.Chauhan, ld. Counsel for accused Maninder Singh @ Lucky and Ld.Addl. P.P.for the State.
27.It is contended by Sh.Anurag Jain, ld. Counsel for accused Gurpreet Singh @ Gopi that Section 366A/34 IPC is not attracted in the present case as the prosecutrix was not foced or seduced to illicit intercourse with any other person. It is also contended that no case U/s 67 and 67A of I.T.Act is made out against the accused Gurpreet Singh as it is not proved by the prosecution that from the mobile phone of the accused Gurpreet Singh @ Gopi, the video footage of the prosecutrix was sent on the SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 27/38 mobile phone of PW3 Aftaab. It is also contended that in the FSL report, Video footage of the prosecutrix was not found in the mobile phone of accused Gurpreet Singh @ Gopi and it is also not proved on record that the video footage was transmitted from the mobile phone of accused Gurpreet Singh to the mobile phone of PW3 Aftaab. The IO has categorically stated that he had not personally checked the mobile phone of accused Gurpreet Singh.
28.It is also contended by Sh.Mahender Singh, ld. Counsel for accused Jitender @ Jeetu and Maninder singh that the prosecutrix was having an affair with the brother of accused Jeetu namely Bunty and quarrel has taken place in the year 2009. It is also contended that PW2 has categorically admitted that the accused Jeetu had told him to take care of the prosecutrix as she was having friendship with his brother Bunty. It is also contended that the prosecutrix was intentionally taken to Balaji Action hospital and PW2 Sh.Babu has also admitted that a doctor namely Sh.Barakatullah, who is his relative was residing as a tenant at the ground floor of their house. It is also contended that there are contradictions between the statement of PW1 and PW2. It is also contended SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 28/38 that prosecutrix in her statement before the court categorically admitted that video clip was made with her consent. It is prayed that all the accused persons be acquitted.
29.On the other hand, it is contended by the Ld.Addl. P.P.for the State that in the present case, though Section 366A IPC has not made out but ingredients U/s 363 IPC are fulfilled. It is also contended that the testimony of the prosecutrix is not shattered in any manner. It is prayed that all the accused persons be convicted.
30.Now I am dealing with the contention of Ld.defence counsels one by one.
31.In the present case, charge has been framed against all the accused persons for the offence U/s 366A/34 IPC. Section 366A IPC reads as under :
"Procuration of minor girl Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another persons shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine".
In Iqbal Vs. State (2007) 12 SCC 724, it is held SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 29/38 that in order to attract Section 366A IPC, the following essential ingredients are :
(1) That the accused induced a girl; (2) That the person induced was a girl under the age of eighteen years;
(3) That the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) Such intercourse must be with a person other than the accused and (5) That the inducement caused the girl to go from any place or to do any act.
32.In the present case, the prosecutrix was not forced or seduced to illicit intercourse nor there was another person in the room of the accused Lucky when the alleged video clip was made.
I am of the view the ingredients of Section 366A IPC is not attracted in the present case. Thus, all the accused persons namely Gurpreet Singh @ Gopi, Jitender @ Jeetu and Maninder Singh @ Lucky are hereby discharged for the offence U/s 366A IPC.
33.It is contended by the Ld.Addl. P.P.for the State that Section 363 IPC is attracted in the present. Section 363 IPC reads as under :
SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 30/38"Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
34.As per prosecution case, prosecutrix PW4 has stated that the accused Lucky asked her that his sister in law (Bhabhi) called her. She went to the house of accused Lucky and his sister in law was not there. Thereafter, she started talking and accused Lucky made her video clip with mobile phone of Gopi. Even if the entire testimony of PW4 is believed, even then no case U/s 363 IPC is made out as the complainant, on the asking of accused Lucky went to his house and she has categorically stated that video clip was made by accused Lucky with her consent and at that time, she was in senses. As the prosecutrix gave consent to make the video clip, no case U/s 363 IPC is made out.
35.Case of the prosecution is that accused Maninder Singh @ Lucky has made obscene video clip of the prosecutrix from the mobile phone of the accused Gopi and lateron accused Gopi has sent this video clip on the mobile phone of brother of the prosecutrix i.e. PW3 Aftab.
SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 31/3836.In the present case, during investigation mobile phone no. 9582248312 of accused Gopi was taken into possession and mobile phone of Yusuf who is uncle of PW3 was also taken into possession. Both the phones were sent to FSL and as per FSL report, the video named "Do not watch my video _3gp01.3 gp" retrieved from Memory Card Ext.'MC2' and all video files retrieved from Ext.'MC1' are given in CDR. Though no obscene video clip of the prosecutrix was found in the mobile phone of accused Gopi. The obscene video clip was found in the mobile phone of PW3 Aftab and this phone was issued in the name of uncle of PW3. IO has admitted in the cross examination that he has personally verified the fact that video clip was sent from the mobile phone of Gopi to the mobile phone of PW3 and he has admitted that he has not personally checked the mobile phone of Gopi. IO in the crossexamination has categorically admitted that PW3 told him that he had received the MMS from the mobile phone of accused Gopi and he has also categorically admitted that he has not reached any conclusion from any Data Analysis provided by the concerned service provider.
37.It is not proved on record that any video clip was sent SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 32/38 from the mobile phone of accused Gopi to the mobile phone of PW3 Aftab. There is no evidence that accused Gopi sent the video clip on the mobile phone of PW3. No Video clip of the prosecutrix was found in the mobile phone of accused Gopi. It is not proved by the prosecution that accused Gopi had sent the Video Clip of the prosecutrix on the mobile phone of PW3 Aftab. Thus, accused persons cannot be convicted for the offence 67 and 67A of I.T.Act.
38.It has come in the evidence of the prosecutrix that accused Lucky told her that Video clip is personal and he will delete the same. She has also stated that accused Gopi had already down loaded that video clip on his computer and thereafter the said video clip was sent to accused Jitender @ Jeetu. Accused Lucky had told her about down loading of the video clip by Gurpreet Singh @ Gopi and passing the same to Jeetu. Even if we believe this statement of the prosecutrix, even then no weightage can be given to this statement as IO has not seized the computer on which the video clip was downloaded. There is no evidence on record to show that the accused Gopi has sent the video clip to the mobile phone of accused Jeetu. Admittedly, the SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 33/38 prosecution has not taken into possession the computer of the accused Gopi nor the mobile phone of accused Jeetu was taken into possession to show that the accused Gopi had sent the video clip to the mobile phone of accused Jeetu. Thus, all the accused persons cannot be held guilty and convicted for the offence U/s 67 and 67A of I.T.Act.
39.In the present case, charge has also been framed U/s 509/506/34 IPC. This is the case of the prosecution that accused Lucky had sent the video clip to the phone of accused Jeetu and accused Jeetu started following her and pressurized her to establish physical relations with him, otherwise, he will down load her obscene video clip on the Internet.
40.PW2 Sh.Babu @ Mehtab, brother of the prosecutrix admitted in crossexamination that a quarrel had taken place with accused Jeetu in the year 2009. He has also admitted that accused Jeetu had told him to take care of his sister as she was having friendship with his brother Bunty. He has also admitted that this was the reason for the quarrel in the year 2009.
41.In the crossexamination, PW4 Farheen has also admitted that she used to talk with the brother of Jeetu.
SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 34/38She also used to send and receive SMS on the mobile phone of Bunty. She has also stated that Bunty had taken her mobile phone about 1½ months prior to the incident. As the prosecutrix has admitted that she used to talk with the brother of accused Jeetu namely Bunty and she has also received the SMS from the mobile phone of Bunty and she also used to send the messages on the mobile phone of Bunty. PW2 Sh.Babu has also admitted that the accused Jeetu had told him that the prosecutrix was having friendship with his brother Bunty and this was the reason of quarrel taken place in the year 2009. The prosecutrix has categorically admitted that she had not seen the Video clip and admitted that accused Jeetu came to the gali and asked her to see the Video clip but she refused. As the prosecutrix in clear terms has stated that she has not seen the video clip, I am of the view that Section 509 IPC is not attracted in the present case. Accordingly, all the accused persons namely Gurpreet Singh @ Gopi, Jitender @ Jeetu and Maninder Singh @ Lucky are hereby acquitted for the offence U/s 509/34 IPC.
42.As there is no specific allegations of extending threats to the prosecutrix by the accused persons, all the accused SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 35/38 persons namely Gurpreet Singh @ Gopi, Jitender @ Jeetu and Maninder Singh @ Lucky are hereby acquitted for the offence U/s 506/34 IPC.
43.In the present case, the prosecutrix gave an application to the police in her own handwriting that accused Jeetu had taken photo from her album and he has used her photo in a wrong manner. She has also stated that alongwith accused Jitender, Amit and Teetu also mis used her photo.
During investigation, no photograph of the prosecutrix was seized. This statement was given on 30.12.2011 at 08:30 PM and thereafter, statement of the prosecutrix was recorded U/s 164 Cr.P.C. which is proved on record and in her statement,she has deposed that accused Lucky called her to his house on the pretext that his Bhabhi was calling her. She went to his house but accused Lucky was alone and thereafter, she started talking with accused Lucky and he made video clip with the mobile phone of Gopi. She also requested accused Lucky not to make the video clip and accused Lucky told her that he is making this video only for fun and he will delete the same. She has also stated that on the next day, she went to the shop of Gopi and Gopi told her that he SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 36/38 was having her MMS which the Lucky had made. She requested to delete the same but he told her that he is not having the same. She has also stated before the Ld.M.M. that accused Jeetu used to pressurize her to develop physical relations with him, otherwise, he will upload the video clip on the Internet.
44. No video clip was found in the mobile phone of accused Gopi and the prosecutrix in clear terms has deposed that the video clip was made with her consent and she was in senses. There is no evidence that accused Gopi had down loaded the said video clip of the prosecutrix on his computer as no computer of Gopi was seized. No evidence is collected by the IO that the obscene video clip of the prosecutrix was sent by accused Gopi to the mobile phone of PW3 Aftab. There is no evidence that accused Gopi had send the video clip on the mobile phone of accused Jeetu. Mobile phone of accused Jeetu was not seized by the police. Prosecutrix admitted that she was having friendship with Bunty, brother of accused Jeetu. Accused Jeetu had asked brother of the complainant to take care of her. I am of the view complainant has falsely named the accused Jeetu in the present case.
SC No. 44/14 FIR NO.340/11 State Vs.Maninder Singh @ Lucky Page No. 37/3845.In view of above discussion, I am of the view that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, all the accused persons namely Maninder Singh @ Lucky, Jitender Kumar @ Jeetu and Gurpreet Singh @ Gopi are hereby acquitted for the offence punishable U/s 366A/34 IPC, 67 and 67A of Information Technology Act, 2000 and 509/34 IPC, 506/34 IPC. All the accused persons are further directed to furnish bail bonds and surety bonds for a sum of Rs.20,000/each (Rupees twenty thousand each) with one surety each in the like amount in view of Provisions of Section 437A Cr.P.C. Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.
File be consigned to record room.
ANNOUNCED IN THE OPEN (NARESH KR.MALHOTRA) COURT ON: 22.08.2016 ASJ05 (West), THC, Delhi.
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