Delhi District Court
State vs Dinesh Sharma on 14 December, 2023
IN THE COURT OF SHRI KAPIL GUPTA
METROPOLITAN MAGISTRATE-07, PATIALA HOUSE
COURTS, NEW DELHI DISTRICT: NEW DELHI
FIR No. : 370/1994
PS : Tilak Marg
State Vs. Dinesh Sharma & Ors.
JUDGMENT
A Case 46213/16
Identification
Number
B Name of the Ms. Manisha Chanana
Complainant
C Name of the 1) Sh. Dinesh Sharma
accused 2) Smt. Bhavna
3) Sh. Sandeep Singh
4) Sh. Anand Seth
5) Sh. Rajiv Gautam
6) Sh. Vicky
D Date of Institution 03.12.1994
E Offence Charged U/s 292/347/365/368/384/386/506/509/120-
B/34 IPC
F Plea of accused Accused Dinesh Sharma, Bhavna, Sandeep
Singh, Anand Seth and Rajiv Gautam pleaded
not guilty. Charge could not be framed upon
accused Vicky as he had been declared as a
Proclaimed Offender.
G Order Reserved 25.11.2023
on
H Date of 14.12.2023
Pronouncement
I Final Order Accused Dinesh Sharma, Bhavna, Sandeep
Singh, Anand Seth and Rajiv Gautam are
acquitted and accused Vicky was declared as
Proclaimed Offender.
FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 1 of 27
1. In brief, facts of the case as alleged by the prosecution are that present FIR was registered at PS Tilak Marg upon the complaint of Ms. Manisha Chanana. It was alleged that the accused persons induced the complainant to deliver her gold ornaments to them by putting her in fear of injury and they also took her signatures on blank papers forcibly and threatened to kill her when she denied to put her signatures. It is further alleged that the accused persons took photographs of the complainant in abnormal, indecent and objectionable manner and the same were published in Fantasy Magazine in July, 1994 edition. It is also alleged that accused persons with intention to wrongfully confine the complainant and to extort property from the complainant, compelled her to do obscene and illegal act and forced her to pose in abnormal, indecent and objectionable manner. It is alleged that accused persons used indecent/abusive words on telephone with the complainant. It is alleged that such acts were done in furtherance of common intention of all the accused persons.
2. After taking cognizance of the offence, the accused were summoned and after compliance of Section 207 CrPC and after hearing the parties concerned, a formal charge for commission of offence under Section U/s 292/347/365/368/384/386/506/509/120-B/34 IPC was framed upon accused Dinesh Sharma, Bhavna, Sandeep Singh, Anand Seth and Rajiv Gautam to which they pleaded not guilty and claimed trial. It is pertinent to mention that accused Vicky was declared as a proclaimed offender vide order dated order dated 06.10.2007 due to his non-appearance before the court.
3. In order to prove its case against the accused, the prosecution FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 2 of 27 examined 14 witnesses.
4. Sh. Ratan Singh was examined as PW 1 who deposed that on 15.04.1994 he was working as a stamp vendor at DDA Vikas Sadan and on such date, he had sold stamp paper Ex. PW1/A in the name of Bhargava and Bhargava.
5. Ld. APP for the State sought permission to cross-examine the witness as he was resiling from his earlier statement and the same was allowed. In cross-examination by Ld. APP for the State, witness stated that the affidavit on the said stamp paper was prepared in the name of Anamika and an affidavit has to be made in the name of the person in whose favour the stamp paper is sold.
6. During cross-examination of PW-1 on behalf of all the accused persons, he stated that if any person came to him for purchase of stamp paper, he did not use to ask for their identity proof and he used to make entry in the register without verifying the information.
7. Ms. Krishna Khanna was examined as PW 2 who deposed that on 02.05.1994, she had sold stamp paper No. 5134 Ex. PW2/A, stamp paper No. 5130 Ex. PW2/B, stamp paper No. 5110 Ex.PW2/C, stamp paper No. 5129 Ex. PW2/D and stamp paper No.5114 Ex. PW2/E in the name of Bhargava and Bhargava. She further deposed that on 27.04.1994 she had also sold stamp paper No. 4253 Ex.PW2/F, on 02.05.1994 had also sold stamp paper No.5135 Ex. PW2/G, stamp paper No.5107 Ex.PW2/H and on 27.04.1994 had also sold stamp paper No. 4258 Ex. PW2/I in the name of Bhargava and Bhargava. She also deposed that she made entry for the sale FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 3 of 27 of aforesaid stamp papers in the Register and when the register got filled, she deposited the said Register in the Office of Collector of Stamps, Tis Hazari Courts, Delhi.
8. During cross-examination of PW-2 on behalf of accused Dinesh, Anand and Sandeep, witness admitted that no serial number is imprinted on Ex.PW2/A to Ex.PW2/I. Witness was not cross-examined on behalf of accused Rajiv and Bhavna despite opportunity being given.
9. Ms. Virender Kaur was examined as PW 3 who deposed that in the month of August, 1993, she was pursuing English course in ICEL coaching institute at Moti Nagar and one person namely Sandeep was also doing the same course and posed himself as Hans in the class. Accused Sandeep was present in the court and was correctly identified by the witness. She deposed that Sandeep made offers to the girls of the class for modeling as he used to say that his friend Dinesh Sharma was running a Modeling Agency in Malka Ganj and also offered her the same. She further deposed that accused Sandeep treated her as a sister and after completion of English course in the year 1994, accused Sandeep along with the accused Dinesh Sharma came to her home and described about the portfolio and told her that for the purpose of modeling, she has to prepare a portfolio (face pictures book) as the same is required for further modeling purposes. She identified accused Dinesh Sharma who was present in the court. She deposed that in the month of March 1994, accused Sandeep called her and asked her to reach Rajouri Garden for a photoshoot and she along with her sister-in-law reached the address given by the accused Sandeep in morning hours. She further deposed that at such place, one photographer along with accused Dinesh Sharma were present and her 30 to 40 photographs were FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 4 of 27 taken and thereafter, in the month of April 1994, accused Sandeep and Dinesh Sharma came to her place and told her that she had got an offer from Zee TV for the fashion show and at the end of the April, 1994, they came again and told her that she may be selected for the same and she had to go to Holiday Inn hotel with an appointment with producer of the Zee TV and then in the Month of May, 1994, they took her to the Holiday Inn Hotel and they spoke to some person over there and then took her to some agency in Bhikajicama Place where she met Bhavana and Gautam, who were present in the court and were correctly identified. She further deposed that accused Bhavana saw her and told her that she is selected for the assignment and told her to sign some papers and she asked accused Dinesh about this but he told her that she was his sister so she should not worry and simply sign the papers and then they forced her to sign those papers and few papers were also stamped. She also deposed that they then took her to some Farmhouse in Maruti Van where accused Bhavana took her in a room and told her to took off her clothes and she was shocked and started crying but accused threatened her by saying that if she does not agree then she will not be able to go home and then she held her hands and she got frightened but the photographer told her to not say anything to them otherwise they may do some harm to her. She deposed that they had taken semi-nude photographs in red and copper color Saree and in black and white t-shirt and then they took her back in their van to Bhikajicama place from where she ran home by taking three wheeler scooter and the photographer helped her to run. She further deposed that thereafter, two police officials came to her home and showed her the affidavit signed by her Ex. PW-3/A and she recognized them and then they recorded her statement and read over the same to her.
FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 5 of 2710. Ld. APP for the State sought to cross-examine the witness as she was not narrating the entire facts of her statement recorded U/s 161 CrPC and the same was allowed. In her cross-examination by Ld. APP for the State, witness admitted that in the starting of the month of March 1994, accused Sandeep came to her house and told her that his friend had opened Modeling agency and told her that he provides assignment in that modeling agency. She further admitted that thereafter accused Sandeep took her to Malkaganj, Malka Chambers, Era Modeling Agency, Jawahar Nagar, Delhi, where he introduced his friends Dinesh and Jitender to her and introduced her as sister like. She also admitted that they told her that some close up photographs were required for modeling purpose and the same will be taken by their photographer and thereafter she returned back to her home. She admitted that in the end of the month of March 1994, accused Sandeep came to her house and took her to Rajouri Garden and her 35-40 closeup photographs were taken by the photographer. She further admitted that in the Farmhouse where she was taken by the accused Dinesh Sharma, Sandeep, Bhavana, Rajiv Gautam and one photographer (Sardar) in a maruti van, when she refused to put off her clothes, accused Dinesh Sharma threatened her by saying that if she did not put off her clothes, he will kill her and that accused Rajiv Gautam and Bhavana forcefully took off her half clothes and when she opposed the acts of the accused persons, accused Sandeep and Bhavna held her hand tightly while putting off her clothes. She admitted that accused Rajiv Gautam, Bhavna, Rajiv Gautam, Dinesh and Sandeep also threatened her for dire consequence if she refused to put off her clothes. She also admitted that accused Rajiv Gautam told the photographer that "ki photographs itne badiya dang se lo ki inko dekhte hi vicky bhargava ek dum se khreed le" and accused Rajiv Gautam threatened her by saying that "agar kisiko iske bare me bataye to tumhari photo ke FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 6 of 27 poster bna kar sab jagah lagwa dnga".
11. During the cross-examination of PW-3 on behalf of accused Sandeep, Dinesh and Anand, she stated that she never made any complaint with the police regarding the incident and around 30 to 40 photographs were taken at the office for the purpose of portfolio and no photographs were taken at the Malka Ganj office and she went to the office along with the accused Sandeep. She further stated that her photographs taken at the Rajouri Garden Office were never given to her and she had never seen her portfolio and never seen any offer letter issued from Zee TV. Witness was not cross-examined on behalf of accused Rajiv and Bhavna despite opportunity being given.
12. Sh. Manohar Lal was examined as PW-4 who deposed that on 07.05.1994, Dinesh Sharma had opened a current account in the name of New Era Modeling Ad Services and proved the certified copy of the account opening form of the said account no. 2948 Ex PW-4/A and statement of account Ex. PW-4/B.
13. During the cross-examination of the witness on behalf of accused Sandeep, Dinesh and Anand, witness stated that he did not remember whether New Era Modeling Ad Services was a proprietorship firm or a partnership firm or a company. Witness was not cross-examined on behalf of accused Rajiv and Bhavna despite opportunity being given.
14. Sh. Ct. Krisha Gopal was examined as PW5 who deposed that on 10.11.1994, he had joined investigation of the present case along with Inspector Anand Sagar and he along with Inspector Anand Sagar went to FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 7 of 27 the house of alleged accused Sandeep at H No. 2983/2, Gali No. 11, Ranjeet Nagar, New Delhi where IO arrested accused Sandeep and conducted personal search of the accused Ex. PW5/A.
15. During the cross-examination of the witness on behalf of accused Sandeep, Dinesh and Anand, he stated that he had joined investigation with the IO from the police station. Witness was not cross-examined on behalf of accused Rajiv and Bhavna despite opportunity being given.
16. ASI Sitaram was examined as PW-6 who deposed that on 10.11.1994, he had joined the investigation of the present case along with the IO SI Anand Sagar and on such day, he along with the IO went to the house No. 2983/2, Gali No. 11, Ranjit Nagar, New Delhi, where IO after enquiry with the alleged Sandeep, arrested him and his personal search was conducted vide memo Ex PW-5/A. Accused Sandeep was present in the court and was correctly identified by the witness.
17. Witness was not cross-examined on behalf of accused Rajiv and Bhavna despite opportunity being given. In his cross-examination on behalf of other accused he stated that he had joined investigation with the IO from the police station and went to house of the accused.
18. ASI Deshraj was examined as PW-7 who deposed that on 10. 11.1994, IO SI Anand Sagar had recorded disclosure statement of accused Sandeep Ex. PW-7/A. Accused Sandeep was present in the court and was correctly identified by the witness.
19. Witness was not cross-examined on behalf of accused Rajiv and FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 8 of 27 Bhavna despite opportunity being given. In his cross-examination on behalf of other accused he stated that the disclosure statement of accused was recorded in police station by the IO in his own handwriting.
20. Retired Deputy Manager Ms. Chanderesh Prabha Kathuria was examined as PW-8 who deposed that at the time of incident, she was posted in Punjab National Bank, Branch Bhikajicama Place and on 06.08.1994, she received a cheque no 487503 dated 18.06.1994 for Rs. 8,000/- through clearing from the account no. 1061 Media Ad Links (India) Pvt. Ltd and the cheque was returned due to insufficient balance. She placed on record the returning memo Ex. PW8/A and the cheque Ex. PW8/B.
21. In her cross-examination on behalf of accused Bhavna, she stated that the police officer recorded her statement on 07.11.1994. In her cross- examination on behalf of accused Anand, Dinesh and Sandeep, witness stated that she had not brought any record regarding the account no. 1061 and stated that account opening form of account no. 1061 Ex. PW8/C is already placed on record in which it is shown that above mentioned account is in the name of a firm and signed by Bhawna and Rajiv Gautam. She was not cross-examined on behalf of accused Rajiv.
22. Sh. Darwan Singh Bisht was examined as PW-9 who deposed that on 21.11.1994, he showed the admission register to the police and the certified copy of the register was exhibited as Ex. PW9/A (OSR). He further deposed that according to the register, the date of admission of Manisha Chanana was 11.04.1991 and date of birth was 20.02.1978. He also deposed that on such day, police showed him photocopy of school leaving certificate of Manisha Chanana dated 23.09.1994 Mark PW9/B. FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 9 of 27
23. In his cross-examination on behalf of accused Sandeep, Dinesh and Anand, he stated that he was never associated with the work of maintaining of admission register and withdrawal register and there is no entry in the register in his handwriting and no entry has been made in his presence. He was cross-examined on behalf of accused Bhavna and Rajiv.
24. MHC(R) HC Dharmender was examined as PW-10 who had brought the destruction order of daily diary register upto 2004 and deposed that the aforesaid DD register have been destroyed by order of the Deputy Commissioner of police vide order 11527-28/NDD/(G III) dated 04.08.2003 and 3081-3160/HAR/NDD/ND dated 09.08.2016 and had brought explanation of SHO, PS Tilak Marg regarding destruction of Daily diary register upto 2004 Ex. X. He had produced one letter no. 129/R/ACP/BRK dated 12.01.2018 in which the destruction order vide which relevant DD entry had been destroyed was mentioned and such letter was exhibited as Ex. PW10/X-1.
25. In his cross-examination on behalf of accused Sandeep, Anand and Dinesh, witness stated that the DD entries were neither written by him nor written in his presence. In his cross-examination on behalf of accused Bhavna, he gave a similar answer. He was not cross-examined on behalf of accused Rajiv despite opportunity being given.
26. ASI Om Prakash was examined as PW-11 who deposed that on 23.10.1994, he alongwith Insp. Anand Sagar visited the house of Rajeev Gautam, where they took personal search of Rajeev Gautam and Insp. Anand Sagar prepared search Memo Ex. PW11/A and thereafter at the FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 10 of 27 instance of Rajeev Gautam, they visited the house of accused Bhavna where they met father of accused Bhawna namely Capt. Lokesh and Insp. Anand Sagar served notice u/Sec. 91 CrPC Mark A to father of accused Bhawna for production of some documents related to the case and Capt. Lokesh furnished three affidavits in the name of Ms. Manisha dated 19.04.1994 Ex. PW2/C, Ex. PW2/D and Ex. PW11/C, one typed letter on which the signature of Manisha was put and one letter head and the same were seized vide seizure memo Ex.PW11/B. Witness was also shown one letter of Adult Model Relief dated 19.04.1994 on which Manisha had put her signature Ex. PW11/D and witness correctly identified all documents which were seized in his presence vide seizure memo Ex. PW11/B. He identified one letter having signature of Manisha Ex.PW11/F which was seized vide Ex. PW11/B. Identity of accused Rajeev Gautam was not disputed.
27. In cross-examination on behalf of accused Bhavna, witness stated that on 23.10.1994, he had visited the house of accused Rajeev Gautam and stated that he accompanied the IO and Rajeev Gautam to house of accused Bhavna. Such cross-examination was adopted on behalf of accused Rajiv and Anand. In cross-examination conducted on behalf of accused Dinesh and Sandeep, witness stated that no independent witness was joined by the IO during the proceedings conducted at the house of accused Bhawna and IO did not seal the documents seized vide seizure memo Ex.PW11/B in his presence and the documents remained in unsealed condition.
28. Retd. SI Ramesh Chand was examined as PW-12 who deposed that on 16.09.1994, Insp. Anand brought rukka on the basis of which he registered the FIR No. 370/1994 Ex.PW12/A (OSR). He proved his FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 11 of 27 endorsement on rukka Ex. PW12/B (OSR).
29. In cross-examination on behalf of accused Sandeep, Dinesh and Anand, witness stated that he had never met the complainant before registration of FIR and presentation of rukka. He was not cross-examined on behalf of accused Rajiv and Bhavna despite opportunity being given.
30. ACP Anand Sagar was examined as PW-13 who deposed that on 16.09.1994 Smt. Manisha Channa gave a written complaint to SHO PS Tilak Marg and same was marked to him for investigation and after receiving the same, he made endorsement on the same and the said complaint alongwith endorsement was exhibited as ExPW13/A and he stated that thereafter, he got registered the present FIR. He further deposed that he made interrogation from her on the very same day and recorded her supplementary statement with respect to the incident and also made interrogation from her father and recorded his statement and father of complainant handed over the Birth Certificate having serial no. 118072 and her date of birth was 20.02.1971 and the same was seized vide seizure memo Ex. PW13/B. He identified the above said birth certificate of Manisha Channa Ex. PW13/C. He further deposed that on 17.09.1994, he alongwith Inspector Sunil Vasist, Inspector Radha Raman and other staff including the complainant and her father conducted raid at the house of accused Dinesh Sharma and he was found present at his house and was arrested and his personal search memo Ex. PW13/D was prepared. He correctly identified accused Dinesh who was present in the court. He deposed that thereafter, they went to Bhikajicama Place for searching the accused Rajiv Gautum and Bhawna and both were found present in office i.e. Somdath Chamber, Bhikajicama Place, Media Addlinks Pvt Ltd and FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 12 of 27 thereafter, he made inquiry/ interrogation from both of them during which they accepted their involvement in commission of the alleged crime and then accused Rajiv Gautum and Bhawna handed over one magazine of 1994 namely Fantasy having obscene photograph of complainant Manisha Channa, one photograph of complainant Manisha Channa which was on the display board of their office and one blank affidavit was also handed over and the same was seized vide seizure memo Ex. PW13/E and the blank affidavit was exhibited as Ex. PW13/E. It was observed by the Ld. Predecessor that the photograph and above said magazine were not found in judicial record and after perusal of the record it was seen that explanations were sought from the court staff in an inquiry initiated regarding misplacing of certain documents including documents seized vide seizure memo Ex. PW13/E. He further deposed that he arrested accused Rajeev Gautam and Bhawna and prepared their personal search memos Ex. PW13/F and Ex. PW13/G respectively. He identified the accused persons who were present in the Court. He deposed that he recorded disclosure statement of accused Rajeev Gautam Ex. PW13/H and then they alongwith the complainant and her father searched and arrested the accused Anand Seth vide Ex. PW13/I. He identified accused Anand Seth who was present in the Court. He further deposed that he recorded detailed disclosure statement of accused Rajiv Gautam Ex. PW13/J and then he conducted raid to search accused Vicky Bhargav at the instance of accused Rajiv Gautam but it went in vain and they also made search for accused Sandeep Singh Hans but could not find him. He also deposed that on 21.10.1994, he arrested accused Vicky Bhargav and prepared his personal search Ex. PW13/K and during interrogation, one Sudheer Mukherjee, employee of Vicky Bhargav produced 17 transparancies of complainant Manisha Chanana in black dress and 20 transparancies in red FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 13 of 27 dress and both were obscene in nature and also produced one affidavit in the name of Virander Kaur and he seized the said articles vide seizure memo Ex. PW13/L. It was observed by the Ld. Predecessor that the articles except affidavit which was in the name of Virender Kaur were not found on judicial record and after perusal of the record, it was seen that explanations were sought from the court staff in an inquiry initiated regarding misplacing of certain documents including documents seized vide seizure memo Ex. PW13/L, however, it was not clear from the previous order sheet that what was the fate of those explanations/ inquiry. Witness idenitified the affidavit which was the name of Virender Kaur Ex. PW13/M. He deposed that they met the father of accused Bhavna and notice u/s 91 CrPC Mark A was given to him to provide certain documents and he produced three affidavits of complainant Manisha Chanana, one adult model release of Manisha Chanana and one letter to Maurya Publication, Juhu, Bombay and such documents were seized vide seizure memo Ex. PW11/B. He identified Ex. PW11/F, Ex. PW11/D, Ex. PW2/C, Ex. PW11/C and Ex. PW2/D. He also deposed that during interrogation he showed one affidavit in the name of Virender Kaur Ex. PW13/M to Manisha Chanana to which she told that said affidavit was not signed by her and same does not belong to her and he recorded her statement in this regard. He deposed that on 24.10.1994, Sudheer Mukherjee, employee of Vicky Bhargav produced 32 scanned positives (plastic sheets of 06 nude photographs of Manisha Chanana) and same were seized vide seizure memo Ex. PW13/N. It was observed by the Ld. Predecessor that the above said plastic sheets of 06 nude photographs of Manisha Chanana were not found on judicial record and after perusal of the record, it was seen that explanations were sought from the court staff in an inquiry initiated regarding misplacing of certain documents including documents seized FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 14 of 27 vide seizure memo Ex. PW13/N, however, it was not clear from the previous order sheet that what was the fate of that explanations/ inquiry. He further deposed that during the investigation he also seized a cheque of Punjab National Bank for Rs. 8000/- from the possession of accused Dinesh Sharma issued by Sh. Rajiv Gautam in the name of M/s New Era Modeling Ad Services vide seizure memo Ex. PW13/O and he correctly identified the said cheque. He deposed that on 27.09.1994, he also seized photocopy of school leaving certificate of Manisha produced by her father vide seizure memo Ex. PW13/P and he correctly identified the said certificate. He also deposed that he recorded disclosure statement of accused Vicky Bhargav Ex. PW13/Q, seized bank statement of account of Media Ad Links, photocopy of account opening form and photocopy of resolution vide seizure memo Ex. PW13/S. He deposed that he conducted search of the office of accused Rajeev Gautam and Bhawna and found 05 transparencies of complainant Manisha amongst other articles which were seized vide seizure memo Ex. PW13/T. He identified accused Rajiv, Bhavna, Dinesh, Sandeep who were present in the Court and presence of accused Anand was exempted through his counsel.
31. In cross-examination of the witness conducted on behalf of accused Bhavna, witness stated that the complainant Manisha told him about the date of incident in the month of April for the first time and later in May, 1994. He admitted that there is no date of the incident mentioned by the complainant in her statement. He further stated that the complainant during her interrogation told him about the place of incident but did not remember whether she had given the date of alleged incident or not. He admitted that he had not forwarded the ten affidavits for getting expert handwriting opinion from the CFSL etc. He further stated that witnesses namely FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 15 of 27 Virender Kaur @ Shashi or her parents did not make any kind of complaint against any of the accused person even after registration of FIR or seizure of the affidavits. He denied the suggestion that the witnesses/complainant with their own consent agreed to participate in photo session with the accused person after entering into contact through affidavits etc.
32. The cross-examination of the witness conducted on behalf of accused Bhavna was adopted on behalf of accused Dinesh and Sandeep and the witness was further cross-examined. During such cross- examination witness stated that he had not dictated any contents of complaint ExPW13/A and the complainant had not signed the complaint in his presence. He further stated that during investigation, complainant had not disclosed any telephone number from which she was being threatened and voluntarily stated that there were no mobile phones in operation and land-line phones were not necessarily covered with caller ID at that time and the complainant had disclosed the name of accused who were giving threat in the investigation. He also stated that he did not remember whether the complainant told him as to which accused had threatened her and stated that he can tell the same on seeing the record and the judicial record was shown to the witness and the witness stated that the date and time of threatening call was not disclosed by the complainant, however, she has mentioned the name of the person as Rajiv Gautam and Bhawna who called her on 16.09.1994 at about 06:30 pm and had mentioned "inn logon"
which was referring to the accused persons in the matter. He stated that accused Rajiv Gautam, Dinesh Sharma, Sandeep Singh Hans, Bhawna and photographer Anand Seth threatened that the complainant cannot go without having her photographs taken and if she does so, "tumhara yea haal karenge ki laash ka pata nahi chalega aur tum ghar nahi pahuch paogi" and FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 16 of 27 the accused further threatened the complainant after her photographs were taken that "iske baare main kisi ko bataya toh jaan se maar denge" and admitted that the complainant has not signed any statement where such threats are mentioned as they were statements U/s 161 CrPC.
33. The cross-examination of the witness conducted on behalf of accused Bhavna was adopted on behalf of accused Rajiv and Anand and the witness was further cross-examined. During such cross-examination witness denied the suggestion that he had recorded the statement of Virender Kaur on his own instance without examining her and the admission number 2729A for Manisha Chanana in the Admission Register of Radha Krishan International School, Defence Colony, New Delhi was created on his instance and further denied the suggestion that the birth certificate of Manisha Chanana was prepared on his instance.
34. Sh. Salandar Kumar Sarwast was examined as PW-14 who had brought the original birth register with respect to birth certificate registration no. 365, place of birth 77-D, Ganj issued by his department and produced photocopy of entry no. 365 Ex. PW14/A (OSR) as per which the date of birth of child was 20.02.1978. He deposed that as per record, the name of the mother of the child was Chandrakanta and father's name was H.K Channa.
35. In his cross-examination conducted on behalf of accused Dinesh and Sandeep he stated that he had no personal knowledge about this birth certificate and is deposing before this Court on the basis of record. Such cross-examination was adopted on behalf of accused Anand, Rajiv and FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 17 of 27 Bhavna.
36. Separate statements U/s 281 CrPC r/w Section 313 CrPC of the accused Dinesh, Bhavna, Sandeep, Anand and Rajiv Gautam were recorded and all the incriminating evidence were put to the accused persons and they stated that they are innocent and have been falsely implicated in this case and no such incident had happened. All accused opted not to lead Defence Evidence.
37. Ld. APP argued that prosecution has proved their case beyond reasonable doubt and there is sufficient material on record to prove the guilt of the accused and prayed that the accused be convicted.
38. Per contra, Ld. Counsel for all accused argued that the none of the witness had seen the accused commit the alleged offence. It was further argued that case of the prosecution is full of contradictions and prosecution has failed to prove that the alleged offence was committed by the accused persons and as the prosecution has failed to prove its case beyond reasonable doubt, accordingly accused be given benefit of doubt and be acquitted of all the charges.
39. Section 292 IPC reads as follows:
Sale, etc., of obscene books, etc. (1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 18 of 27 whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
(2) Whoever
(a) sells, lets to hire, distributes, publicity exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 19 of 27 also with fine which may extend to five thousand rupees.
Exception.--This section does not extend to (a) any book, pamphlet, paper, writing, drawing, painting, representation or figure (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or (ii) which is kept or used bona fide for religious purposes; (b) any representation sculptured, engraved, painted or otherwise represented on or in-(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or (ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.
40. Section 347 IPC reads as follows:
Wrongful confinement to extort property, or constrain to illegal act.
Whoever wrongfully confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, any property or valuable security or of constraining the person confined or any person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
41. Section 365 IPC reads as follows:
FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 20 of 27Kidnapping or abducting with intent secretly and wrongfully to confine person.
Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
42. Section 368 IPC reads as follows:
Wrongfully concealing or keeping in confinement, kidnapped or abducted person Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
43. Section 384 IPC reads as follows:
Punishment for extortion Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
44. Section 386 IPC reads as follows:
Extortion by putting a person in fear of death or grievous hurt Whoever commits extortion by putting any person in fear of death FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 21 of 27 or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
45. Section 506 IPC reads as follows:
Punishment for criminal intimidation Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc -- and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, of with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
46. Section 509 IPC reads as follows:
Word, gesture or act intended to insult the modesty of a woman Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
47. Section 120B IPC reads as follows:
FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 22 of 27Punishment of criminal conspiracy
1. Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
2. Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
48. Section 34 IPC reads as follows:
Acts done by several persons in furtherance of common intention When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
49. It is settled principle of criminal law that an accused is presumed to be innocent until proven guilty and the burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt by bringing on record reliable and credible evidence. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond reasonable doubt, unless otherwise so provided by any statute.
50. Ms. Virender Kaur was examined as a prosecution witness and she FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 23 of 27 deposed that the accused persons made her forcibly sign some papers and accused took her to some Farmhouse in Maruti Van where accused Bhavana took her in a room and told her to took off her clothes and threatened her and her semi-nude photographs were taken. Though, the deposition of the witness may constitute a separate offence, however, such witness is not an eye witness of the present case. The witness has not given even an iota of deposition to support the present case and thus, her testimony is immaterial in the facts and circumstances of the present case.
51. As per record, the complainant Manisha Chanana could not be examined as a witness as she was not traceable and could not be served on multiple occasions through various authorities including the IO/SHO/DCP concerned as per order of the Ld. Predecessor dated 27.10.2017. The entire prosecution case for the alleged offence committed by the accused is based on the complaint given by the complainant. To prove its case, prosecution did not examine any eye witness of the alleged offence committed by the accused persons. Moreover, the remaining examined witnesses were formal in nature and did not depose any incriminating fact against the accused persons. Thus, in the absence of any incriminating evidence against the accused persons and in view of the above discussion, it can be observed that the accused persons could not have been said to have committed the alleged offence. Thus, prosecution case of commission of offence cannot be considered to be standing on its own legs without the testimony of complainant or any other eye witness.
52. It was observed by the Ld. Predecessor that the photographs of the complainant, the magazine in which photographs of the complainant were published and the plastic sheets of 06 nude photographs of complainant FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 24 of 27 were not found in judicial record and explanations were sought from the court staff in an inquiry initiated regarding misplacing of certain documents including documents seized vide seizure memo Ex. PW13/E and documents seized vide seizure memo Ex. PW13/N. As per order of Ld. District Judge dated 08.11.2012, permission was given for reconstruction of missing documents since 2003 and to hold fact finding inquiry and fix responsibility and a report was later brought from Vigilance Branch, Central District, Tis Hazari Court but the missing documents could not be traced. It is an unfortunate situation that documents which were of paramount importance in proving the case of prosecution got misplaced and could not even be traced. In absence of such documents and in view of the fact that the complainant did not enter the witness box in order to prove the present case as she was not traceable, the prosecution has failed to prove its case beyond reasonable doubt.
53. It is also pertinent to mention that the IO and other police witnesses who joined investigation should have made an effort to join public witnesses and if members of the public would have refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings. In view of the facts and circumstances of the case, it is observed that that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on case decided by the Hon'ble High Court of Delhi titled as Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) wherein it was held as follows:
FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 25 of 27"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
54. In view of the above discussion it is observed that no sincere efforts were made by the police to join public witness. Moreover, there was no eye witness to the alleged act committed by the accused.
55. Further, the statements recorded by IO cannot be considered to be the conclusive proof of the commission of alleged offence.
56. As such, prosecution failed to successfully bring home the guilt of accused Dinesh Sharma, Bhavna, Sandeep Singh, Anand Seth and Rajiv Gautam for the offences punishable u/s 292/347/365/368/384/386/506/509/120-B/34 IPC through the testimonies of examined witnesses and further failed to establish the ingredients of offence alleged against the accused in the present matter beyond reasonable doubt.
FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 26 of 2757. In view of the evidence adduced, documents put forth and arguments advanced by the parties and further in view of the above discussion, the court is of the considered opinion that the accused Dinesh Sharma, Bhavna, Sandeep Singh, Anand Seth and Rajiv Gautam are not guilty of offence punishable U/s 292/347/365/368/384/386/506/509/120- B/34 IPC and accordingly, are hereby acquitted for the offence punishable under Section 292/347/365/368/384/386/506/509/120-B/34 IPC.
58. It is pertinent to mention that accused Vicky could not be traced and was declared as a proclaimed offender. In view of such facts, SHO concerned is directed to continue efforts to trace Vicky and file final report qua him as and when he is traced. It is further directed that records of this case be not weeded out without prior permission of the court.
Announced in the (Kapil Gupta)
court on 14.12.2023 Metropolitan Magistrate - 07
New Delhi District, Patiala House Courts,
New Delhi
FIR No. 370/94 State Vs. Dinesh Sharma @ Ors. Page 27 of 27