Delhi District Court
State vs Gulshan @ Bobby & Ors. on 24 March, 2023
FIR No. 145/14
PS Bindapur
State vs Gulshan @ Bobby & Ors.
IN THE COURT OF VIPLAV DABASS:
ADDL. SESSIONS JUDGE : FAST TRACK COURT:
SOUTH-WEST DISTRICT
DWARKA COURTS: NEW DELHI
SC No. 582/2018
CNR No. DLSW01-014139-2018
JUDGMENT
(a) Name, Parentage and 1. Gulshan @ Bobby addresses of the S/o Sh. Jai Prakash accused persons. R/o H. No.117, Hastsal Village, Uttam Nagar, New Delhi.
2. AmanKhurana S/o Sh. Kishor R/o H. No.E-185, Om Vihar, Phase-5, Uttam Nagar, New Delhi.
(Proceedings against accused
AmanKhurana stands abated
since expired)
(b) Offence 328/384/354C/34 IPC
(c) Plea of accused Pleaded Not guilty
(d) Final Order Acquitted
(e) Date of Institution 19.04.2018
(f) Date of committal 21.07.2018
(g) Date of Transfer to this 05.12.2022
court
(h) Date of reserving 24.03.2023
judgment
(i) Date of judgment 24.03.2023
Page No.1 of 16
FIR No. 145/14
PS Bindapur
State vs Gulshan @ Bobby & Ors.
FACTUAL MATRIX
1. The case of the prosecution is that before 01.11.2013, in the month of October, 2013, on an unknown date , in the night while coming from Vipul Aggarwal Mall/ Vipul Arora Mall to the residence of the complainant 'S'(name withheld to conceal her identity) accused was driving her car and when the complainant asked for water to drink, accused Gulshan @ Bobby give her a bottle containing intoxicated liquid with an intent to commit offence upon consuming which the complainant became unconscious. Taking advantage of the condition of the victim, the accused Gulshan @ Bobby along with co-accused Aman Khurana in furtherance of their common intention captured the image of the complainant 'S' in video while committing obscene act with her in nude condition. The accused Gulshan @ Bobby had showed the MMS containing the visuals of the complainant to her and threatened her to circulate the same, if she did not pay money to accused Gulshan @ Bobby and that she had paid Rs. Two lacs to accused Gulshan @ Bobby.
2. The present FIR was registered on basis of order dated 21.02.2024 passed by the Ld. Metropolitan Magistrate on the complaint given by the complainant under section 156(3) Cr.P.C and a charge-sheet for offences punishable u/s 328/354C/506/34 IPC was filed after usual investigation.
COURT PROCEEDINGS
3. The Court of Ld. Magistrate took cognizance of the alleged offences and provisions of Section 207 Cr.P.C were Page No.2 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
complied. Thereafter, the matter was committed to the Ld. Sessions Court.
4. After hearing detailed arguments on behalf of the accused persons and the State, as a prima facie case was made out, charge for the offence punishable under Section 328/384 IPC was framed against accused Gulshan @ Bobby and a separate charge for offence punishable under section 354C/34 IPC was also framed against accused persons namely Gulshan @ Bobby and Aman Khurana to which the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence.
5. During the course of trial accused Aman Khurana expired and proceedings against him were abated vide order dated 20.02.2023.
6. In order to prove the guilt of the accused persons punishable under sections 328/354C/384/34 IPC, the prosecution has to prove the following essential ingredients of the said Sections:
Section 328 IPC:-Causing hurt by means of administering poison or any stupefying, intoxicating or unwholesome drug or other thing etc
(i) with the intention of causing hurt or an offence ;(ii) with knowledge that it is likely to cause hurt; and (iii) to facilitate the commission of an offence Section 354C IPC:- Voyeurism
(i)the accused wathched a woman, that woman was at that time engaged in a private act and while doing such act, she had no expectation of being seen or bserved by the accused or by any other person at the behest of the accused (ii)the accused captured Page No.3 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
the image of woman while she was engaged in a private act without any expectation of being watched by any person at that time and the accused disseminated such image. Section 384 IPC:- Extortion
(i) the accused puts a person in fear of injury to such person or any other person; (ii) the putting of a person in such person must be intentional;(iii) the accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security;(iv) such inducement must be done dishonestly Section 34 IPC:- Sharing of Common intention
(i)That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more then one person and (ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.
PROSECUTION EVIDENCE AND STATEMENT OF ACCUSED
7. During the course of the trial, prosecution examined one witness to prove the aforesaid ingredients for substantiating the accusations levelled against the accused persons.
8. PW-1 Sh. Mukesh was the Investigating Officer of the present case. He deposed that in the month of February, 2014, he was posted as Sub Inspector at police station Binda Pur, that on 21.02.2014 order passed by the Hon'ble Court on application under section 156 Cr.P.C was received by him, that on 25.02.2014, he registered the present FIR on the complaint of complainant received vide DD no. 41-B , that his endorsement Page No.4 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
on the complaint is Ex. PW-1/A, that on 26.03.2014, he moved an application before the Hon'ble Court for recording statement of complainant under section 164 Cr.P.C, that the application was allowed and statement of complainant under section 164 Cr.P.C was recorded by Ld. MM, Ms. Ruchika Singla, that his application for recording statement of complainant is Ex. PW- 1/B bearing his signatures at point A and the statement under section 164 Cr.P.C is Ex. A2, that during the course of the investigation, he tried to contact the complainant, however, she had already left her address, that on 16.07.2014, he issued notice under 41A Cr.P.C to accused Gulshan @ Bobby and interrogated him, that the notice under section 41-A Cr.P.C. is Ex. PW-1/C and interrogation report is Ex. PW-1/D, that on 05.12.2017, he had also issued notice under section 41-A Cr.P.C to co-accused Aman Khurana and interrogated him and that the notice under section 41-A Cr.P.C. is Ex. PW-1/E and interrogation report is Ex. PW-1/F. He further deposed that he had also tried to collect the alleged video, however, the same could not be recovered and that after completion of investigation, he filed the charge sheet in the court. He correctly identified the accused Gulshan @ Bobby.
During his cross-examination conducted by Ld. Defence Counsel he deposed that he never arrested the accused persons in the present case, that he never visited Club 18, Gurgaon Vipul Aggarwal Mall for investigation, that he had never verified whether complainant was having four wheeler or not, that Page No.5 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
accused persons had already lodged FIR No 661/13 dated 16.11.2013 under section 365 IPC at police Station Uttam Nagar against complainant and that he never seized the mobile phone of the accused persons in the present case.
He voluntarily stated that Mobile phones were not recovered from the accused persons. He further deposed that he had also not collected CDR of the accused persons, that he had also not seized the driving license of the accused persons and that he does not know whether accused persons are having driving license or not.
He further testified that the alleged incident was happened in the month of June, 2013, however, the complaint was filed in the month of November, 2013 and that is why, he could not obtain stomach wash of the complainant.
He further deposed that he had never obtained any opinion from the doctors regarding administration of stupefying substance to the complainant. He denied that he had not obtained stomach wash or opinion of doctors qua administration of stupefying substance to the complainant as no such incident had ever happened.
He further deposed that complainant had only given complaint regarding extortion and she had never given any documents for the same.
He denied that accused persons never demanded any money from the complainant by putting her into fear or threat to publish the video recorded by them or that no such incident of Page No.6 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
extortion had ever taken place that is why he could not place on record CDR of the accused persons, that that accused persons had never threatened the complainant to publish the video as no such video was ever recorded by them or no such incident had ever taken place, that accused persons never committed any offence or they have been falsely implicated in the present case, that no such incident had ever taken place, that they have been falsely implicated in the present case on the behest of the complainant, that present FIR is counter blast of FIR lodged by the accused persons against the complainant, that he has not conducted fair investigation of present case and for the same reason accused persons have been charge sheeted in the present case or that he is deposing falsely.
9. Accused admitted the factum of preparation and genuineness of copy of FIR No. 145/14 and certificate under section 65-B Indian Evidence Act Ex. A1 and statement of complainant recorded under section 164 Cr.P.C Ex. A2. Accordingly, respective witnesses namely DO/HC Nawab Singh and Ld. MM Ms. Ruchika Singhla were dropped from the list of witnesses.
10. Thereafter, prosecution evidence was closed vide order dated 23.03.2023 at the request of the Ld. Additional Public Prosecutor and matter was proceeded further for recording of the statement of accused.
11. The statement of accused under Section 313 Cr.P.C was recorded wherein all the incriminating circumstances appearing Page No.7 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
in evidence were put to accused Gulshan @ Bobby to which he replied that the same are wrong, that he had not done any such act with the victim, that he never demanded any amount from the victim, the FIR is the counter blast of the complaint/FIR lodged by him against the complainant, that the present FIR was registered to take revenge from him as he had filed complaint against the complainant, that the witnesses have deposed against them being interested witnesses and that he has been falsely implicated in the present case. The accused opted not to lead defence evidence and therefore, defence evidence was closed. Thereafter, matter was fixed for final arguments.
SUBMISSIONS OF THE PARTIES AND REASONS FOR THE DECISION
12. Sh. Girish Kumar Manhas, Ld. Additional Public Prosecutor argued that the prosecution has clearly established its version that the accused administered stupefying substance to the complainant/ victim who became unconscious, that the accused along with co-accused (since expired) in furtherance of their common intention made a video of the victim in nude condition indulging in obscene act, showing the victim, himself and his friend/co-accused and that the accused extorted a sum of Rs. Two lacs from the victim by threatening her to make the said video public which the victim paid.
Page No.8 of 16 FIR No. 145/14PS Bindapur State vs Gulshan @ Bobby & Ors.
Ld. Additional PP for the State submitted that victim's statement u/s 164 Cr.P.C was also duly recorded and same has been admitted by the accused which establishes the culpability of the accused. He further argued that the non availability of complainant does not in any manner effect the veracity of the statement of the victim recorded under section 164 Cr.P.C. and consistent testimony of the police witness as he does not have any previous enmity with the accused persons. He further stated that moreover the complainant/victim in such cases does not appear due to social pressure and fear of further defamation likely to caused by the offenders, so victim's statement under section 164 and firm testimony of the police cannot be discarded in such circumstances. He further stated that in these facts, the accused be convicted for the offences charged as all the ingredients necessary for completion of alleged offences are proved beyond reasonable doubt.
13. Ld. counsel for the accused persons argued that the complainant who is the Star witness of the prosecution opted not to appear before the court during entire trial to depose her alleged version and that the prosecution has not examined any witness or placed any documentary proof to show that the accused administered a stupefying substance to her and made a nude video of complainant and that he extorted a sum of Rs. Two lacs from the victim by threatening her to make her obscene video public, which the victim paid.
Page No.9 of 16 FIR No. 145/14PS Bindapur State vs Gulshan @ Bobby & Ors.
He further stated that admission of statement u/s 164 Cr.P.C is of no use to the prosecution in view of the non availability of the complainant / victim at the time of trial.
He argued that the testimony of the police witness is of no consequence in view of non availability of the main/star witness. He further stated that the non examination of complainant substantiates the defence version of false implication of the accused to retaliate the registration of FIR by the accused against the complainant prior to the registration of present case. He further submitted that the accused in these circumstances should be acquitted.
14. This court heard the arguments advanced by the Ld. Additional PP for the State as well as Ld. Counsel for the accused persons and perused the record of the case.
APPRECIATION OF FACTS/CONTENTIONS/EVIDENCE AND FINDINGS
15. In order to bring home the guilt of the accused for the offences punishable under section 328/384 Indian Penal Code and 354 C read with section 34 Indian Penal Code, it was imperative for the prosecution to establish the fact that the accused administered stupefying substance to the complainant/ victim who became unconscious, that the accused along with co- accused (since expired) in furtherance of their common intention made a video of the victim in nude condition indulging in obscene act, showing the victim, himself and his friend/co-
Page No.10 of 16 FIR No. 145/14PS Bindapur State vs Gulshan @ Bobby & Ors.
accused, that the accused extorted a sum of Rs. Two lacs from the victim by threatening her to make the said video public, which the victim paid and that the accused again threatened the victim to make the video public and demanded a further sum of Rs. Two lacs from the victim.
16. For establishing the aforesaid ingredients, it is the testimony of the complainant which forms the basis of the entire prosecution version. Record shows that the complainant was not found available at the given address after recording of her statement under section 164 Cr.P.C. This fact is duly affirmed by the Investigating Officer in his examination in chief by deposing that during the course of the investigation, he tried to contact the complainant, however, the complainant had already left her address. He further deposed in his cross examination that complainant did not provide any other documents in support of her allegations except the complaint. It shows that the complainant did not come forward for assisting the Investigating Officer in the investigation.
17. It is further seen that the complainant/ victim could not be traced even during the trial as is reflected from the reports on the summons issued to her on 25.11.2021 and 29.03.2022 through IO, on 24.05.2021 and 05.12.2022, on 20.02.2023 through DCP. Record shows that due to the complainant being not traceable, she had been dropped vide order dated 23.03.2023. So, it follows that the prosecution failed to secure the presence of the star Page No.11 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
witness/ victim on the basis of whose version the criminal law was set in motion. It is settled law that in the absence of the complainant/ victim, testimony of any other witnesses can be of no use to substantiate the allegations against the accused as the same can be used for corroboration of the victim's version. So, the non deposition of victim before the Court topples the overall case of prosecution which is sufficient to exonerate the accused from alleged charges.
18. It is further revealed from the record that no recovery or discovery was effected during the investigation at the instance of the accused. The alleged video film was also not recovered as is deposed by Investigating Officer in his examination in chief. He further admitted in his cross examination that he did not seize the mobile phone of the accused persons as the same were not recovered from them. He further admitted in his cross- examination that he had also not collected CDR of the accused persons. It implies that there is no electronic or other evidence to connect the accused with commission of alleged offences.
He admitted that he had not seized the driving license of the accused and that he does not know whether the accused was having driving license or not. He further admitted that he never verified whether complainant was having four wheeler or not. These testimonies show that there is no material suggesting that there was any occasion for the accused to drive the car of the complainant as neither the existence of the car of the complainant is established nor the existence of driving license of the accused Page No.12 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
is established which both are necessary for a person to drive. It further shows that there is nothing on record suggesting that there was any possibility of commission of the alleged incident by the accused while driving the car of victim.
19. Testimony of IO further shows that he admitted in his cross-examination that the alleged incident took in the month of June, 2013 but complaint was filed in the month of November 2013 and hence he could not obtain stomach wash of the victim/complainant. He further admitted that he never obtained any opinion from the doctors regarding administration of stupefying substance to the complainant. It shows that there is no scientific evidence available on record to suggest that the victim was ever administered any stupefying substance due to which she became unconscious. It further shows that question of making of video film by the accused along with his co-accused of the victim in nude condition does not arise as the factum of her being administered stupefying substance and becoming unconscious under the influence of the same is not proved.
20. Admittedly the accused has got an FIR registered against the complainant prior to this FIR. Considering the said fact and non joining of investigation by complainant as well as her being untraceable even during trial, the defence version of false implication as a counter blast to said FIR stands duly substantiated.
21. With respect to the arguments advanced by Ld. Addl. PP for State that duly admitted victim's statement u/s 164 Cr.P.C Page No.13 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
regarding the incident is sufficient to incriminate the accused, it is pertinent to mention that statement u/s 164 Cr.P.C is not substantive piece of evidence. The same can merely be used to corroborate the version stated during the trial before the court. In the present case, the complainant was not traceable during investigation and trial despite best efforts as per deposition of IO as well as the reports on summons issued to victim through IO/SHO and DCP. Considering the fact of non availability of victim due to which there is no deposition of the victim before the Court, the said statement under section 164 Cr.P.Cis of no consequence as there is no version of victim recorded before the Court which could have been corroborated by the said statement. So, this argument does not have any force to connect the accused with the alleged offences.
22. It is already evident from the aforementioned discussion that factum of commission of alleged offences by the accused has not been established. So, question of sharing of common intention by the present accused with co-accused (since deceased) for committing the alleged offence does not arise. Moreover, the prosecution did not bring any material suggesting the sharing of common intention by the accused persons for commission of the alleged offences. Neither any telephonic record or nor any other electronic evidence or other direct evidence has been brought on record suggesting even their presence at the spot so as to assume that there was ever an Page No.14 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
occasion for the accused persons to share common intention for committing the alleged offences at the spot.
23. It follows from the aforesaid discussion and analysis of testimonies that there is neither any eyewitness nor any other material or circumstance to establish the fact that the accused administered stupefying substance to the complainant/ victim who became unconscious, that the accused along with co-accused (since expired) in furtherance of their common intention made a video of the victim in nude condition indulging in obscene act, showing the victim, himself and his friend/co-accused, that the accused extorted a sum of Rs. Two lacs from the victim by threatening her to make the said video public, which the victim paid and that the accused again threatened the victim to make the video public and demanded a further sum of Rs. Two lacs from the victim, which are essential elements for completion of alleged offences.
24. Considering the afore-discussed testimonies, this Court is of the opinion that arguments advanced by the Ld. Additional Public Prosecutor for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused has been falsely implicated, are found to be justified.
25. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case Page No.15 of 16 FIR No. 145/14 PS Bindapur State vs Gulshan @ Bobby & Ors.
against the accused beyond reasonable doubts. Accordingly, accused Gulshan @ Bobby is hereby acquitted of charge punishable u/s 328/384IPC and 354C/34 IPC levelled against him.Bail bonds stands cancelled and Sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
26. Fresh Bail bonds and surety bonds in compliance of Section 437 (A) Cr.P.C are furnished. Same are considered and accepted for a period of six months from today.
27. File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABASS) on 24.03.2023 ADDITIONAL SESSIONS JUDGE:
FAST TRACK COURT DWARKA COURTS, SOUTH-WEST NEW DELHI Page No.16 of 16