Delhi District Court
3. Title Of The Case : State vs Mohd. Asif on 5 November, 2012
IN THE COURT OF SH. MANISH YADUVANSHI: ACMM01 (CENTRAL):
TIS HAZARI COURTS, DELHI.
1. Case No : : 0139/CR
2. Unique I.D. No. : 02401R1003882003
3. Title of the Case : State Vs Mohd. Asif
FIR No.: 397/2002
PS : Daryaganj
U/S: 63/68A Copy Right Act &
U/s 292 IPC
4. Date of Institution : 15.05.2003
5. Date of reserving judgment : 05.11.2012
6. Date of Pronouncement : 05.11.2012
J U D G E M E N T :
a) The Sl. No. of the case : 0139/CR
b) The date of commission of offence : 25.08.2002
c) The name of complainant : Sh. Devender Kapoor
S/o Sh. Pyare Lal
R/o 35B, Sector15A, Noida (UP)
d) The name of accused : Mohd. Asif
S/o Mohd. Nasreen
R/o 931, Jatwala, Daryaganj, Delhi
FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 1 of 15
e) The offence complained of : U/s 63/68A Copy Right Act &
U/s 292 IPC
f) The offence charged with : U/s 63/68A Copy Right Act &
U/s 292 IPC
g) The plea of accused : Pleaded not guilty.
h) The final order : Acquitted
i) The date of such order : 05.11.2012
j) Brief facts of the decision of the case:
1. One Devender Kapoor (PW1), duly authorized by M/s Super Cassette Industries Ltd. made over a complaint (Ex.PW1/B) dated 25.08.2002 to ACP/IPR/EOW/Crime submitting therein that the complainant is owner of trademark namely "TSeries", "SCT" in a rectangle and Photograph of Mata Vaishnov Devi in a circle. A complaint was made that some persons particularly one Asif are infringing their aforestated copy right. The said complaint was entrusted to SI Sunder Pal (PW4) who made inquiry. Informer confirmed that one Asif sells pirated CDs from the Pavement near Golcha Cinema. The case was registered by sending rukka through HC Vinod Kumar. A raiding party consisting of SI Sunder Pal, SI Vinod, ASI Uday Singh, HC Rohtash, lower staff and the complainant was prepared under supervision of Insp. D.P.Joshi. The said team reached near Golcha Cinema and tried to join 56 public persons who refused. They did not disclose their identity. Wasting no more time, the raiding party reached in front of Post OfficeDaryaganj where one person FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 2 of 15 was found selling CDs on the footpath. During his search, a total of 1010 CDs of different Hindi/English/MP3/Obscene Movies were recovered. The accused did not have any license to sell them. The CDs did not have mandatory information required U/s 52A of the Copy Right Act. The CDs were kept in a gunny bag and sealed with the seal of 'SP'. The accused was arrested. The investigations were completed and charge sheet was filed in the court in respect of offences punishable U/s 63/68A of Copy Right Act read with section 292 IPC. On 02.08.2004, the accused was charged on three counts. He was charged for committing offence punishable U/s 68A of the Copy Right Act on the allegations that on 25.08.2002 at about 09.00 AM at footpath in front of Post OfficeDaryaganj, he was found in possession of 462 VCDs/MP3 containing songs of Hindi/English/Punjabi Movies; that he was also found in possession of 493 VCDs of English Movies and 37 VCDs of Hindi Movies without requisite particulars U/s 52A of the Copy Right Act.
Secondly, the accused was charged for committing offence punishable U/s 63 of the Copy Right Act on the ground that he was found in possession of the said VCDs and that he knowingly infringed or abetted the infringement of Copy Right.
Thirdly, the accused was charged for being found in possession of 18 pornographic VCDs which is an offence punishable U/s 292 IPC. The accused claimed trial.
2. The complainant Sh. Devender Kapoor (PW1) was examined as PW1. The FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 3 of 15 Duty Officer W/ASI Anita Sharma is DW2. One Manoj Rana, Field Officer of the complainant, as PW3, produced the minutes books of the company and proved copy of extract of Resolution dated 29.02.1998 as Ex.PW3/A. The member of the raiding team i.e., SI Sunder Pal and ASI Uday Singh were examined as PW4 & PW5 respectively. No further PWs were examined. The prosecution did not examine Ved Prakash Chanana, Director of the complainant. The prosecution did not name other members of the raiding party i.e., SI Vinod Gandhi, HC Rohtash and Insp. D.P.Joshi as its witnesses.
3. The incriminating evidence on record was explained to the accused in his statement recorded U/s 313 Cr.P.C. He denied the same including recovery of the CDs. According to him, he was called in the Police Station while he was running a shop at Footpath, Near Golcha Cinema adjacent to the Post OfficeDaryaganj and was selling purse and goggles etc. The police officials asked him to sign some papers. He did not lead any evidence.
4. I have heard Ld. APP for State and Sh. Mukhtar Ahmad, Ld. Defence Counsel.
5. In the present case, the main witnesses of the prosecution are PW1 Sh. Devender Kapoor, PW4 SI Sunder Pal and PW5 ASI Uday Singh. As per rukka, the time of sending the same was 09.15 AM on 25.08.2002. The time of arrest of the FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 4 of 15 accused is 12.30 PM on the same day as per arrest memo (Ex.PW1/E). As per PW2, he alongwith Insp. D.P.Joshi, SI Sunder Pal and other staff left the office of IPR at Mehrauli for Golcha Cinema before Noon. In his cross examination, he stated that he had reached IPR Section of Crime Branch at about 10.30 AM on 25.08.2002. He remained there for about half an hour. They reached Golcha Cinema at about 12.00 Noon. He remained at the spot till 01.30 PM from where he went to his house.
PW4 states that the police team alongwith the complainant had left IPR Office and had reached Golcha Cinema at about 10.30 AM. Further, according to PW4, the complainant reached IPR Office at 08.00 AM on the date of raid. At the said time, he also met ACP/IPR Section and Insp. D.P.Joshi. Rukka was sent at 09.15 AM. HC Vinod reached the spot with copy of FIR and original rukka at about 12.30 PM. According to him, police team had left the IPR office for conducting raid about 09.15 AM itself.
Thus, as per PW1, he reached IPR Office only at 10.30 AM where he remained for half an hour. This means, he was still at the IPR Office till 11.00 AM. They reached Golcha Cinema at 12.00 Noon. In this context, PW4 has different narration. The complainant was at the IPR Office at 08.00 AM and they had left for Golcha Cinema at 09.15 AM. This time discrepancy is not explained by the prosecution. It becomes important in view of the fact that the prosecution did not name the remaining members of the raiding party as their witnesses. The said officials have not even signed on the seizure memo (Ex.PW1/C). It bears the signatures of PW1, PW4 & PW5 only.
FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 5 of 15 In this context, PW5 submits that he had reached the spot i.e., Golcha Cinema at 08.00 AM. He remained there till 12.00 Noon only. As per arrest memo, it is duly signed by PW5 Uday Singh. The time of arrest is 12.30 PM. Admittedly, the rukka was sent only at 09.15 AM after which the police party left for Golcha Cinema and therefore, the presence of PW5/ASI Uday Singh at 08.00 AM on spot is not possible. The aforestated time discrepancies are sufficient for this court to look for further corroboration to the testimony of these witnesses which are not available on record.
6. There is no genuine explanation on record regarding nonjoining of public persons. The police party had definite information that the accused would be present in front of Golcha Cinema. They had ample time to proceed against public persons who refused to join raiding party. However, no such steps were taken.
7. Accordingly, there is no explanation on record as to why this omission was made. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
In case of "PREM SINGH VS. STATE" 1996 CRI. L. 3604 (DELHI) and in case of "PAWAN KUMAR VS. DLEHI ADMN" 1989 CRLJ 0127 DEL, it has been observed as under: "Kalam Singh has to admit that at the time of arrest and FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 6 of 15 recovery of knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalan Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7:30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused".
FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 7 of 15
8. In the case of "Hem Raj Vs State of Haryana" AIR 2005 SC 2010, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not given rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
9. In the case of "D.V.Shanmugham Vs State of A.P" AIR 1997 SC 26583", it has been observed as under: "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 8 of 15 prosecution and only those persons who are related to the deceased were examined then in such a situation, the prosecution case has to be scrutinized with more care and caution".
10. In the case of "Pawan Kumar Vs The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows: "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public persons was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 07.30 PM when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried t contact the public witnesses or that they refused to join the investigation. Here is a case where no efforts was made to join any public witness even though number of them were present. No plausible from the side of the FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 9 of 15 prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused".
11. In the case of "Massa Singh Vs State of Punjab" 2000 (2) CC Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under: "The recovery has been effected from a public place.
The investigating officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 10 of 15
12. In the case of "Chanan Singh Vs State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the party of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
13. In the cases of "Gurbel Singh Vs State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
14. In the case of "Sahib Singh Vs State of Punjab" AIR 1997 SC 2417, it has been held as under: "Having gone through the record, we find much substance in each of the above contentions. Before conducting a search, the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case, it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities, the evidence of the police officers who conducted FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 11 of 15 the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, if would affect the weight of evidence of the Police Officer, though not its admissibility."
15. At the same time, I am also reminded of the aspect that so far the arguments in respect of non joining of public witness is concerned, it is well settled law that 'the case of the prosecution cannot be thrown away merely on the ground that public witnesses have not been joined. Reliance is placed upon the judgment titled "Ambika Prasad & Anr Vs. State" reported in 2002 (2) Crimes 63 SC wherein it has been held 'Independent persons are reluctant to be a witness or to assist the investigation. In any case,if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses'.
16. Reliance is also placed upon judgment titled "Appa Bhai Vs. State of Gujrat"
reported in AIR 1988 SC 696 wherein it is observed, "These days people in the vicinity where the occurrence took place avoid to come forward to give evidence and civilized persons are in sensitive when crime is committed in their presence and they FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 12 of 15 withdraw both from the victim and vigilance'.
17. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997(3) Crime 55 the Punjab & Harayana High Court wherein it was observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility, the benefit of doubt necessarily has to go the accused".
18. I have already pointed out that there are material contradictions amongst testimonies of the main three witnesses regarding the time element. Further, there are more such contradictions. The FIR (Ex.PW2/A) was recorded at PS Daryaganj. The rukka was sent at 09.15 AM through HC Vinod Kumar. HC Vinod Kumar has not been examined. The rukka was presented to the Duty Officer at 10.20 AM. The FIR was registered at 10.25 AM i.e. within five minutes of presentation of rukka. As per PW4, the said HC Vinod had reached the spot with copy of rukka at 12.30 PM. The FIR makes mention that the place of occurrence is only 200 meters to the West of the Police Station. The prosecution does not explain as to in what circumstances HC Vinod took a time of two hours and five minutes in covering a distance of 200 meters FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 13 of 15 although he covered the distance from IPR Office, Mehrauli to PS Daryaganj in about one hour only. If PW5 is to be believed, he was not even present at the spot at 12.30 PM when HC Vinod came to spot with rukka and copy of FIR. However, surprisingly, PW5 submits that HC Vinod had returned to the spot at 10.00 AM after registration of FIR. The FIR clarifies that it was registered only at 10.25 AM. HC Vinod is neither a cited witness nor examined by the prosecution.
19. Further, as per PW4, first, he recorded statement of PW1 and thereafter of HC Uday Singh. He further states in his cross examination that the said statements were recorded at the Police Station. On the contrary, PW1 had stated that at 01.30 PM, he had left from the spot and had gone to his house. He also states that he did not visit PS Daryaganj on that day. As to how his statement was therefore recorded at the Police Station on the said day, is not clarified.
These contradictions are in itself independently and jointly sufficient for the court to discredit the manner of narration of the events by the three main witnesses. Absence of public witness also makes recovery doubtful.
20. Lastly, it is seen from the charge sheet that the case property was kept in a gunny bag and sealed with the seal of 'SP'. It was produced in the court before PW1 and collectively exhibited in the court as Ex.P1. Two other CDs of Movies 'Dil Chahta Hai' and 'Kaante' were exhibited as Ex.P2 & P3 respectively. The case FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 14 of 15 property was produced in a gunny bag sealed through 'tied' with 'sutli'. There is a court observation that the seal was not legible. Further, on opening, gunny bag was found to be having another gunny bag inside with 1010 CDs. The perusal of the seizure memo (Ex.PW1/C) clarifies that all the said CDs were kept in a gunny bag, sealed with the seal of 'SP' and taken into police possession. There is no reference to the second gunny bag. Thus, the fact that at the time of its production in the court, another gunny bag was found and the seal thereupon was not visible is pointer to the effect that the case property may have been tampered. MHC (M) was not examined.
21. In the result, it is held that the prosecution has been unable to prove its case against the accused beyond all reasonable doubts and therefore the accused is, accordingly, acquitted of all the three counts. His Personal Bond/Surety Bond are extended for further period of six months in compliance of Section 437A Cr.P.C.
File be consigned to Record Room.
Announced in the open court on 5th November 2012.
(MANISH YADUVANSHI) ACMM (CENTRAL01)/DELHI It is certified that this judgment contains 15 (fifteen) pages and each page bears my signatures.
(MANISH YADUVANSHI) ACMM (CENTRAL01)/DELHI FIR No. 397 of 2002 State Vs Mohd. Asif Page No. 15 of 15