Indian Kanoon - Search engine for Indian Law

2. The IO PW-5 had investigated the case, submitted the chargesheet before the Court, the cognizance was taken and the U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur accused was summoned. Charge was given to the accused on 15.11.2017 under section 328/354/354B/356/379/506/509 IPC to which accused had pleaded not guilty and claimed trial. Prosecution had led PW-1 to PW-5 as its total witness and statement of accused was recorded under Section 313 Cr. P. C. on 21.02.24. Accused has not preferred to lead evidence in defence.

8. It is noticed that the examination in chief of PW-4 was recorded on 27.09.2019 and the entire case of the prosecution rests on the statement of PW-4. After recording of part examination in chief of PW-4 the further examination in chief was deferred as PW-4 was not feeling well during her such deposition. Then the examination in chief of the witness was U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur deferred for 16.12.2019, 22.10.2019 and 23.10.2019. The witness Vikas Sehgal was absent on 22.10.2019 despite service. However the prosecutrix PW-4 did not appear though the IO was present on 22.10.2019. Learned PO was on leave on 16.12.2019.The witness remained absent on 15.02.2020. Thereafter the matter had to be adjourned on 05.09.2020 due to Corona Pandemic. The witness Vikas Sehgal had expired report of which was received before the Court on 26.03.2021. It is recorded in order dated 04.04.2022 that PW-4 /the prosecutrix had left her last known address and had shifted to some unknown place without leaving her contact on which IO was summoned who was cross examined and discharged. Again process on PW-4 received with the report that she was not found at the given address however she was contacted through WhatsApp and would be coming at another date as she was attending last rites of some person. This fact is recorded in order dated 20.09.2022. Summons were issued to witness PW-4 through IO and the witness was served on WhatsApp. The phone call of PW-4 was attended by her friend stating that the witness is in Malaysia. It is recorded in order dated 15.12.2022 that the witness has not been appearing for one reason or the other and it was further recorded that it appears that PW-4 is evading the process of the Court. Fresh process was issued and the witness was also informed telephonically but PW-4 did not disclose her current address. PW-4 had stated on phone U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur call that she will appear on her own before the Court but she did not appear on 03.04.2023 despite such oral undertaking on which bailable warrants were issued against her for a sum of Rs.1000/- which were received unexecuted on 21.08.2023. Fresh bailable warrants were also received unexecuted with the report of DCP. It was observed in order dated 01.11.2023 that the witness PW-4 is not traceable despite grant of numerous opportunities to the prosecution and no further opportunity was granted after 01.11.2023. Since the star witness was not examined in chief in complete nor her cross examination was done therefore no useful purpose would be served for issuing repeated summons in a 5 years old matter. Hence PE was closed by the order of the Court on 01.11.2023. Statement of accused was recorded under Section 313 Cr. P. C. and accused had preferred not to lead any DE.

Xxxxxxx 11.1 The first ingredient is that accused person should administer or cause to be taken such unwholesome substance or U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur thing on PW-4. The prosecutrix had reported the matter dated 02.05.2015 and the obscene photographs were shown to PW-4 by accused in his mobile phone on the same day with the threat to her to come on next day. Hence the complaint was lodged by prosecutrix before the police vide Ex.PW5/A and FIR on which was lodged on 25.08.2015. Hence there is considerable difference between 02.05.2015 and 25.08.2015 and of course the effect of unwholesome substance or thing must have been lost during the said period. However the effect of administration of such unwholesome substance or thing could be conveniently looked into if the IO could have collected relevant evidence available on the face of it which are the obscene photo on the mobile phone of the accused shown to PW-4 on 02.05.2015. IO had not even bothered to collect the said photo from the mobile phone of the accused. The intention also which is part of second ingredient of Section 328 IPC could be gathered after looking into such photographs and there software attributes. Both the ingredients must satisfy conjunctively and in absence of the relevant evidence it cannot to said that any such offence was caused by the accused persons. The oral deposition of the PW-4 cannot be relied upon in the absence of cross examination and her further non-appearance. Hence it is held that the prosecution has miserably failed to prove ingredients of Section 328 IPC against the accused and therefore the accused is held entitled to the benefit of doubt under all the U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur offences against which he is charged with.

12. In such view of the matter there is absence of sufficient material/ evidence on record by way of proof to satisfy any ingredient of any of the offence against which the accused is charged with. Hence it is held that the prosecution has failed to prove the offences against the accused.

13. In view of above, it is held that prosecution has failed to discharge burden of proof that the accused has committed offence under Section 356/379/328/354/354-B/509/506 IPC. Hence the accused Amit Sharma is acquitted of the offence charged under Section 356/379/328/354/354-B/509/506 IPC against him. Accordingly, accused Amit Sharma stands acquitted. His earlier personal bond is cancelled and surety is discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 437A Cr. PC, accused has furnished his bail bonds as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.