Gujarat High Court
Dineshbhai vs State on 8 July, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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CR.A/1111/2003 38/ 38 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1111 of 2003
With
CRIMINAL
APPEAL No. 1133 of 2003
With
CRIMINAL
APPEAL No. 997 of 2003
with
CRIMINAL
REVISION APPLICATION No.443 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DINESHBHAI
JASWANTBHAI PATEL - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
KJ SHETHNA for
Appellant(s) : 1,
MR LR PUJARI, APP for Opponent(s) : 1,(IN ALL
THE
MATTERS)
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 08/07/2010
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) For the sake of convenience the parties to the proceedings shall be referred to as per their original status before the trial Court as Accused-1 (A-1), Accused-2 (A-2), Accused-3 (A-3) and Accused-4 (A-4) respectively.
All the present Criminal Appeals being Criminal Appeal No.1111 of 2003 (preferred by A-4), Criminal Appeal No.997 of 2003 (preferred by A-3), and Criminal Appeal No.1133 of 2003 (preferred by A-1 and A-2), are directed against the judgement and order dated 6.8.2003 passed by the learned Sessions Judge in Sessions Case No.259 of 1995, whereby the accused Nos.1 and 4 have been convicted for the offence punishable under Section 377 of IPC sentencing with the imprisonment of 10 years each with the fine of Rs.5,000/- each, and accused Nos.2 and 3 have also been convicted for the offence punishable under Section 377 of IPC, sentencing with the imprisonment of 5 years each with the fine of Rs.2,000/- each and further all the accused have been convicted for the offence punishable under Section 292 of IPC with the imprisonment of one year with the fine of Rs.1,000/- each and all the accused have also been convicted for the offence punishable under Section 293 of IPC, convicting with imprisonment of 2 years with the fine of Rs.2,000/-.
It may be recorded that the Criminal Revision Application No.443 of 2005 has been registered for enhancement of the sentence against the accused No.2 in view of the reasons recorded by this Court in the order dated 12.5.2005 in Criminal Misc. Application No.2984 of 2004 in Criminal Appeal No.1133 of 2003, whereby the office was directed to issue notice of enhancement forthwith to the applicant therein (A-2) to show cause as to why the sentence of R.I. of 5 years imposed upon her should not be enhanced.
PROSECUTION CASE :-
4.1 As per the prosecution, Accused No.1 is the husband of accused No.2 and they were residing, during 1988 to 1992, at the flat situated in Permeshawar Park Society, Naranpura, Ahmedabad. The accused Nos.1 and 2 were aided and abetted by accused No.3 and 4 and they indulged in illicit intercourse with Nitaben Devising and obtained nude photographs of Nitaben with a view to send nude photographs to foreign countries and obtain huge amount for sending those photographs. Likewise, the accused Nos.1 and 4 committed rape to Archana and obtained nude photographs of Archana so as to send the same to foreign country and to obtain hefty amount by selling those photographs. The accused No.1 also obtained nude photographs of A-2 by indulging in intercourse with accused No.2. The accused No.3 was involved in the said act of intercourse with the accused No.1. The accused No.1 used to deposit the amount, which he received from the foreign countries in the name of accused No.3 in the bank account. The accused No.1 was fully aware of the fact that accused No.3 was not Ketkiben K. Desai, yet the bank account was opened in the name of Ketkiben K. Desai in the United bank of India, Asarwa Branch, Ahmedabad bearing Savings Account No.16923 and deposited the amount, which was received by him from the foreign countries. Thus, the accused No.1 in collusion with accused No.3 forged the signatures of Ketkiben K. Desai and withdrew the amount from the bank. Thus, accused No.1 has committed offences punishable under Sections 376, 377, 292, 293, 465 of IPC and in the alternative under Sections 376, 377, 292, 293, 465 read with Section 120B of IPC. The accused No.2 has committed offences punishable under Section 292, 293, 377 read with Section 114 of IPC and in the alternative under Section 292, 293, 376, 377 read with 120B of IPC.
The accused No.3 has committed offences punishable under Sections 292, 293, 377 and Section 409 of IPC and in alternative has committed offences punishable under Sections 293, 409, 377, read with Section 120B of IPC. Accused No.4 has committed offences punishable under Sections 292, 293, 376, 377 of IPC and in the alternative under Sections 292, 293, 376, 377 read with Section 120B of IPC.
4.2 It appears that the complaint was given by Mr.P.V. Raol, Police Inspector, CID Crime, Ahmedabad on 23.11.1992 and on the strength of the complaint given by him, the offence was registered against the accused in Naranpura Police Station bearing I-C.R. No.838 of 1992. The report prepared under Section 157 of the Cr.P.C., was forwarded to the charge Officer of the Naranpura Police Station. The place where the offence was committed was visited by the investigating Officer and incriminating documents as well as nude photographs were recovered and the camera which was used in the commission of offence was also recovered. The items which were recovered from the scene of offence were noted down in the panchnama which was prepared in the presence of panch witnesses. The panchnama with regard to the recovery of clothes which was put on by the accused No.1 at the time of committing illicit intercourse was recovered in the presence of panch witness. The panchnama with regard to the recovery of the articles from the postbox bearing No.2003 which was in the name of accused Nos.1 and 2 in the post office situated near the Civil Hospital was prepared in the presence of the witnesses. The panchnama with regard to seizure of the camera from the accused No.1 was prepared in the presence of panch witnesses. The panchnama with regard to the seizure of the stationery which was used to send the photographs was prepared in the presence of panch witnesses. The panchnama with regard to the material which was used at the time of committing illicit intercourse such as the thread which was used in obtaining nude photographs and the box which was used for that purpose was recovered in the presence of panch witnesses. The panchnama with regard to the seizure of the diary was prepared in the presence of panch witnesses. The panchnama with regard to the recovery of the material which was used in obtaining nude photographs was prepared in the presence of panch witnesses. The panchnama with regard to the forged signatures of Ketki Desai was prepared in the presence of panch witnesses. The victims were sent to Civil Hospital for the purpose of obtaining medical certificate. The muddamal article which was recovered was sent to FSL in order to have the complete analysis. The statements of the witnesses were recorded from the neighbourhood. The Investigating Officer, after receiving the medical report of the victims, the FSL report, and other materials produced the same along with the accused before the Metropolitan magistrate's Court, Ahmedabad who, in turn, committed the case to the Sessions Court as the case was exclusively triable by the Sessions Court.
The charge against the accused was framed, and as the accused pleaded not guilty, the evidence was led by the prosecution. The prosecution, in order to prove the guilt of the accused, examined 41 witnesses, whose details are available at paragraph 5 of the judgement of the learned Sessions Judge. The prosecution, in order to prove the guilt of the accused had produced the evidences of 42 documents, details of which are available at paragraph 6 of the judgement of the learned Sessions Judge. The learned Sessions Judge, thereafter recorded the statement of the accused under Section 313 of Cr.P.C., wherein the accused have denied the offence against them. The learned Sessions Judge, thereafter, heard the parties and passed the judgement and order, whereby he found the accused guilty for offence, except for the offences under Sections 376, 465, 405 and 409 of IPC. The learned Sessions, Judge, thereafter, heard the parties before imposition of sentence and ultimately imposed the sentence as referred to hereinabove vide the impugned judgement. It is under these circumstances, the present appeals before this Court.
We have heard Mr.K.J. Shethna, learned Sr. Counsel appearing with Mr.Adil mehta, learned Counsel for A-4, Mr.J.M. Panchal, learned Counsel for A-3, Mr.Budhbhatti as well as Mr.Singora, learned Counsel for A1 and 2. We have also heard Mr.Pujari, learned APP on behalf of the State in all the matters as well as in the proceedings of revision for enhancement of the sentence qua A-2.
The evidence as led by the prosecution can be bifurcated into three parts; one would be the evidence against A-1 and A-2, the another would the evidence against A-4 and the third would the evidence against A-3.
It appears that as per the evidence of the victim Archna (PW-5) (Ex.
91), she has categorically stated that A-1 and A-2, who are described as doctor uncle and aunty have taken nude photographs of herself and her sister Hitesha. When the photographs were shown those photographs were identified by her and not only that, but A-1 and A-2 as shown in the photographs were also identified. The pertinent aspect is that the said victim Archna and her sister Hitesha, as per the evidence of the father Navinchandra (PW-4) (Ex.90), were of tender age namely; Archna was aged 8 years and the younger one Hitesha was aged 6 years. As per the evidence of Devisinh S. Padiyar (PW-7) (Ex.94) the photographs taken of his daughter Nitadevi, who was of the tender age and was also identified and the presence of A-1 and A-2 in the said nude photographs are also identified. Similarly, as per the evidence of Jagdishbhai R. Gohil (PW-8) (Ex. 96) his daughter's nude photographs are identified with the other boy of a tender age namely; Sandeep, who has also been examined as PW-9 at Ex.97 and he has supported the case of the prosecution of taking nude photographs by A-1 with the help of A-2 of herself and Shila (alia Shilpa) when both were of a very young age. He has also stated for the inducement given of A-1 and A-2 to the father of the victim Sanjay namely; Benigopal M. Mandora (PW-10) (Ex.98) who has supported the say of victim Sanjay and as also identified the photographs of his son Sanjay and another girl Shilpa the daughter of Jagdishbhai and he has also stated for the inducement was being given by A-1 and A-2. The victim Nitaben (PW-14) (Ex.108) has stated that when she was aged about 15 to 16 years, she used to go to A1- and A-2 and nude photographs were taken. She has identified the photographs shown to her and she has also identified A-1 and A-2. The pertinent aspect is that in the other photographs at Ex.63, she has identified her photographs with the photographs of other accused. The victim Prajal Bhatt (PW-15) (Ex.109) has also identified the nude photographs taken by A-1 with the help of A-2 and various other mode and manner in which the photographs were taken. She has also identified the camera, which was in possession of A-1 The another victim Shila Jagdish Gohil (PW-41) (Ex.202) has stated that A-1 and A-2 were taking dirty photographs of her and she has identified her photographs as well as in the said photographs she has identified the presence of A-1 and also A-2. The photographs taken by A-1 and A-2 with Sandeep are also identified.
We have considered the photographs and all the photographs are not only nude photographs, but they are also dirty nude photographs, exposing various types of perversity. They are of various unnatural activities, which are prohibited by the provisions of Section 377 of IPC.
(As the Court time is over, S.O. to 8.7.2010 for further dictation and/or pronouncement of judgement.) The evidence, if further considered, it appears that it has been proved by the evidence of I.O. Read with the evidence of panchnama that all negatives of the photographs were found from the possession of A-1 and A-2. The occupation of the house by A-1 and A-2, which was raided is also proved. The negatives which were more than 500 found from the place, thereafter were developed and the photographs as referred to hereinabove were collected as evidence and such evidence has been proved by the deposition of the victims. The person, who developed the photographs from the negatives which were recovered by the I.O., has also been examined and the said aspect is proved. The camera recovered, which was used for such activities of photography is also proved by the evidence of I.O., read with the panchnama of recovery. Not only that but as referred to hereinabove, certain victims have also identified the said camera as was used for the activity of nude photography by A-1. All the victims have identified A-1 and A-2 to the extent that at the relevant point of time, the Accused No.1 was keeping beard and A-2 was having blunt hair. The presence of A-1 and 2 in the respective photographs, which were identified by the concerned victims are seen. In the photographs, which have come in evidence duly identified by the victims, the presence of A-1 and A-2 are seen and, therefore, is duly proved.
The pertinent aspect is that such photographs include the unnatural offences, which are covered under Section 377 of IPC. Section 377 for ready reference reads as under :-
Section
377. Unnatural offences Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.
-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
12.As per the aforesaid section, the essential ingredients are that the accused had carnal intercourse against the order of nature and that such intercourse was solicited with the man, woman or animal. There was requirement that the accused did do so voluntarily and even if the judgement of High Court of Delhi, in the case of Naz Foundation v. Government of NCT of Delhi & Ors., reported in 2010 Criminal Law Journal, 94 (Delhi High Court), is considered, it does not apply to the cases where the conviction was already made and, in any case, it would apply to the cases of unnatural offences by or with the person below a particular age. The relevant paragraph No.132 of the said judgement is reproduced below:-
132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14, and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament choses to amend the law to effectuate the recommendation of Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgement will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.
Therefore, when the said section is read down only to that extent and it is partly declared ultra vires, which even if considered, would not lead us to record the conclusion that conviction under Section 377 cannot be made, if the offence is proved for the activity of intercourse against the order of nature with the minor.
13.If the photographs are seen, penetration is apparent inasmuch as in those photographs, which have come on record by the evidence of the witnesses. Not only that but in the deposition of Sandeep (PW-9) (Ex.97) he has stated that A-1 removed the clothes of him and the victim Shila alias Shilpa and his private part was placed into the mouth of Shila by A-1 and thereafter the photographs were taken. The said evidence is supported by another victim Shila. There are various photographs, which have come on record by the evidence of witnesses, include activities of unnatural offences by A-1 himself with the other victim Shila Gohil (PW-41) (Ex.202) of very tender age. Therefore, we are of the view that the prosecution has been able to prove the case for the offence punishable under Section 377 of IPC against A-1 and A-2
14.If the evidence for the offence under Section 377 against A-4 is to be considered, the same is also on record and duly proved by the prosecution inasmuch as in the evidence of Nitaben (PW-14) (Ex.108), the photographs at Ex.63 in different sets were shown to her and out of which 28 photographs were identified by her as of herself and of other accused.
15.We have considered those photographs and they do show the presence of A-4 in the activity of unnatural offence. Additional photographs, which are identified by the other victims have come on record also show the presence of A-4 in the nude photographs as well as the photographs for the activity constitutes unnatural offences. Such are with A-2 as well as with other victim and rather confirmed by the deposition of the aforesaid witness Nitaben (PW-14). Therefore, the prosecution has established the case for the alleged offence under Section 377 of IPC against A-4.
16.Mr.Shethna, learned Counsel for A-4 had attempted to contend that in the evidence of Nitaben (PW-14) (Ex.108), there is no clear-cut identification of A-4 and the language used is all other accused. Therefore, he contended that such can be said as weak piece of evidence, which may not be considered by the Court so as to conclude the guilt of the Accused-4 for constitution of offence. He also relied upon certain decisions for supporting the contention that even if the photograph is identified of A-4 by any person or the victim in the Court, such cannot be termed as a valid evidence, since with the trick photography presence of any person can be inducted in any photograph. He also submitted that there is no clear evidence of identification of A-4 by any of the witnesses in the Court, but even if it is considered that one of the witnesses Nitaben (PW-14)(Ex.108)had identified A-4, then also such is no valid identification in the eye of law as there was no identification parade held before the Executive magistrate or the concerned authority. He, therefore, submitted that the evidence of Nitaben is required to be discarded or, in any case, cannot be relied upon for constitution of offence by A-4.
The pertinent aspect is that there was no cross examination by A-4 to the said witness Nitaben (PW-14) and, therefore, the allegation of trick photography or the concoction of the presence of A-4 in the concerned photography could only be said to be an after-thought defence sought to be canvassed by the learned Counsel, that too, at the time of appeal. Had any question been put to the concerned witness Nitaben, the witness could have stated as to whether the presence of A-4 or any other accused was genuine or not. In absence of any such question being put to the witness by the defence, such contention could hardly be available to discard the evidence of the witness Nitaben (PW-14) (Ex.108).
Apart from the above,neither in the evidence of I.O., and of panchs for recovery of photographs, nor in the evidence of the photographer, who developed the photographs on the basis of the negatives, such defence by putting question has been raised. Under the circumstances, in absence of such evidence the ground as sought to be canvassed of trick photography applied cannot be accepted. Further, it is not a matter of mere witness Nitaben (PW-14) making a vague statement of identification, but is a matter where such statement is supported by the photographs , which have been exhibited and accepted in the evidence. If the presence of A-4 is seen and clear by the evidence of the photographs, sufficient corroborated material is available for such identification of A-4 by the witness Nitaben (PW-14). Therefore, if the identification made by Nitaben (PW-14) is considered with the evidence of photographs, which have also been exhibited, identification of A-4 in the activity of unnatural offence is proved. The attempt to contend that there was no identification parade held is illusory and misconceived inasmuch as when the witness knows A-4, no identification parade was required. It is only when the identity of accused is at doubt at the stage of investigation, the identification parade may be required to be held. It is not a sine qua non that in every case holding of identification parade is a must. In the facts and circumstances of the present case, we are satisfied about the proper evidence led by the prosecution for identity of A-4 in the activity of unnatural offence, which is supported by the corroborated piece of evidence namely; the photographs showing the presence of A-4 and indulging into the activity of unnatural offence by A-4. Under the circumstances, the contention cannot be accepted. We are satisfied that the prosecution has been able to lead sufficient evidence for the offence by A-4 under Section 377 of IPC.
The aforesaid leads us to examine the evidence led by the prosecution for the offences punishable under Sections 292 and 293 of IPC. Sections 292 and 293, for ready reference, read as under:-
1[292.
Sale, etc., or obscene books, etc.-
2[(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 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.] 3[(2)] Whoever-
(a) Sells, lets to hire, distributes, publicly 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 4[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 also with fine which may extend to five thousand rupees].
5[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 of 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 or 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.]] 1[293.
Sale, etc., of obscene objects to young person.-
Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do, shall be punished 2[on first conviction with imprisonment of either description for a term which may extend to three 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 seven years, and also with fine which may extend to five thousand rupees].] As per the requirement of Section 292, if the accused has done any of the acts mentioned in Clause (a) to (e) of Sub-section (2) of Section 292, in any object, the offence would be constituted. Clause
(a) to (e) of Sub-section (2) of Section 292 provides for sale or hiring or distribution or public exhibition of obscene material. Sub-section (2) provides for import or export or conveying of any obscene object. Clause (c) provides for taking part or receiving profit from any business of any obscene object. Clause (d) provides for making of any advertisement in such an act, which is an offence and Clause (e) provides for offering or attempting to do any act which is an offence under this section, then in that case the requirement of this section would be attracted.
Section 293 of IPC provides that if any accused has sold or let to hire or distribute or exhibit or circulate any object to a person below the age of 20 years, then the offence would be constituted.
The examination of the evidence on record in the present case shows that A-1 and A-2 were found in possession of about more than 500 negatives of such nude photographs containing activity of intercourse and unnatural offences by themselves as well as by minors, who were victims and also by A-4 in certain photographs. The photographs as per the deposition of all the victims were nude and were of the aforesaid activities of intercourse as well as for unnatural offences. Therefore, those negatives of the photographs or the photographs itself are, not only, nude photographs, but it can be said that those photographs exhibit various perversities and also against the order of nature. Therefore, such can be said as obscene material. The negatives of such photographs can be termed as obscene objects. The possession is proved. The quantity of photographs and the manner and the mode in which they were taken and preserved by A-1 and A-2 would clearly go to show that they were for selling and hiring with commercial purpose. The possession of huge quantity of more than 500 negatives of such nude - perverse photographs can be considered as for selling or hiring or distribution to receive profit or to receive money therefrom.
Therefore, the possession of such a huge quantity of nude and perverse photographs by A-1 and A-2 would attract the provisions of Section 292 of IPC and it appears to us that the learned Sessions judge was right in holding A-1 and A-2 guilty for the offences punishable under Section 292 of IPC. So far as A-4 is concerned, as we have observed and discussed herein above, he has played role in participating the activity, which could be termed as unnatural offence and also in participating in the activities of photography for intercourse with minor, A-2 as well as with other victims. Such would be to the extent of taking part in the course of preparation of the obscene objects. As per Clause (c) of Sub-section (2) taking part has to be with the knowledge or with the reason to believe that such obscene objects are for the purposes as mentioned in Clause (a) and (b) that they are to be sold or hired for any consideration or they are to be imported or exported or conveyed for selling purpose. As per the prosecution case, A-1 and A-2 have sold those photographs, outside the country and have realised money. As per the prosecution case, A-1 and A-2 were found to be in possession of such huge quantity of nude and perverse photographs.
If the evidence for the knowledge on the part of A-4 is to be traced, the same is available from the medical history given to the doctor, which has come on record by document Ex.139 for examination of A-4. In the medical history, A-4 has stated that A-1 had told him that such photographs are to be sent to his friends to foreign countries and for such purpose he had offered himself for the intercourse as well as for the sex with Archna and Hitesh, who were minors at that time. If such evidence of medical history is tested with the reasonable prudence, none would offer himself for such photographs, that too, to be sent to a friend of A-1, who is uncle of A-4. Hence, there was element of knowledge on the part of A-4 that A-1 is to make use of such photographs for exporting it to a friend of him. Therefore, under these circumstances, if the learned Sessions Judge has found A-4 also guilty for the offence punishable under Section 292 of IPC, the same cannot be said as erroneous.
There is absolutely no evidence whatsoever led by the prosecution for taking part by A-3 in any of such activity for which the photographs are taken, nor any evidence is led by the prosecution for showing the identity of A-3 in such activity. Therefore, in absence of any evidence led by the prosecution against A-3, it is not possible for us to hold A-3 as guilty for the offence under Section 292 of IPC.
The evidence led by the prosecution, keeping in view the requirement of Section 293 of IPC, if considered as a whole, it has come on record that the bank account was opened, and the amount in dollars have been created in the said bank account being operated by A-2 and A-1. As per the prosecution, the account was opened in collusion with A-3. The evidence of the hand-writing experts shows that as per his opinion, the signature maintained in the bank record is similar to the signature in the name of Ketki @ Kanku, but written by A-2 and not A-3. Such hand-writing expert evidence is available in the deposition of Vasudev B. Barwad (PW-23) (Ex.132). He has admitted in the cross-examination that there is no opinion that the disputed writings were of A-3 and the evidence of the said witness is considered with the documentary evidence, goes to show that the specimen signature as per the bank record was tallying with the signature of A-2. Therefore, if the evidence as led by the prosecution is considered, it transpires that A-2 had opened the account by signing as if she is A-3 and there is no evidence to the effect that A-3 had taken part for opening the bank account by giving her of signature. There is no evidence led by the prosecution to the effect that such bank account was operated by A-3. Under these circumstances, it is not possible to hold that A-3 had colluded with A-1 and A-2 for the alleged activity of selling the photographs in foreign countries and realising money in foreign exchange from foreign countries.
As already observed earlier that A-3 has not taken any part in any activity, for which the photographs were taken by A-1, nor is there any evidence led by the prosecution for the knowledge on the part of A-3. Hence, it is not possible to agree with the view taken by the learned Sessions Judge for finding A-3 as guilty for the offence punishable under Sections 292 and 293 of IPC.
The provisions of Section 293 provides that if the photographs are sold, let or hired or distributed to a person below the age of 20 years, then it is an offence. The prosecution has led evidence to the extent to show that such obscene objects were sold by A-1 and A-2 in foreign countries and the money was realized therefrom by proving bank account and the amount received. There is weak piece of evidence to show that the money credited in the bank account was so realized from the transaction of sale or hiring the photographs. Even if the case of the prosecution is believed to the extent that the money was realized by sale of obscene objects, then also the second requirement of Section 293 is that such obscene objects must have been sold, hired or distributed to any person under the age of 20 years. There is absolutely no evidence led by the prosecution to show that the person to whom such photographs were sold in foreign countries was less than 20 years.
Under these circumstances, the second part of Section 293 of IPC for constituting offence cannot be said as satisfied as there is no evidence led whatsoever by the prosecution to show that the sale or hiring of such obscene objects was to the person under the age of 20 years. The second part of essential ingredients of Section 293 of IPC cannot be said as satisfied. Therefore, it is not possible for us to agree with the guilt recorded by the learned Sessions Judge of A-1 and A-2 for the offence punishable under Section 293 of IPC.
Under these circumstances and in view of the case of the prosecution that A-1 and A-2 had sold the photographs in foreign countries and the money was realised, A-1 and A-2 were not guilty for the offence punishable under Section 293 of IPC, the guilt for the offences under Section 293 of A-3 and A-4 who cannot be recorded.
In view of the aforesaid, the guilt and conviction recorded by the learned Sessions Judge for A-1, and A-4 for the offence punishable under Section 377 of IPC deserves to be confirmed. Similarly, the guilt recorded of A-2 for the offence punishable under Section 377 of IPC deserves to be confirmed, but on the aspects of imposition of punishment, the learned Sessions Judge has imposed sentence for a period of five years' R.I., and a fine of Rs.2,000/- each and in default, to undergo further R.I., for six months for the offence punishable under Section 377 of IPC. As per the report submitted by the learned APP, A-2 has already undergone sentence for three years, seven months, 23 days and she is entitled for the remission of one year and 17 days and, therefore, roughly the sentence undergone with remission comes about four years nine months as against the sentence imposed by the learned Sessions Judge of five years.
There are peculiar circumstances in the present case inasmuch as there are children of A-2, who are to be taken care by her, therefore, we find that the sentence already undergone, including the period of remission shall meet with the ends of justice and we modify the order of sentence upon A-2 for the offence under Section 377 of IPC by holding that the sentence already undergone, including the period of remission would be sufficient.
The guilt recorded by the learned Sessions Judge of A-3 for the offence punishable under Section 377 of IPC cannot be sustained in view of the aforesaid observations and discussions. Therefore, A-3 is acquitted for the offence punishable under Section 377 of IPC. Consequently, the order for imposition of sentence for the said offence punishable under Section 377 of IPC would stand set aside.
The order of learned Sessions Judge for recording guilt of A-1, A-2 and A-4 for the offence punishable under Section 292 of IPC deserves to be confirmed and the order of imposition of sentence consequently upon the concerned accused also deserves to be confirmed. However, so far as A-3 is concerned, in view of the aforesaid observations and discussions, the guilt recorded of A-3 for the offence punishable under Section 292 of IPC cannot be sustained. Hence, the same is set aside. Consequently, the order of imposition of sentence and fine also would not survive for A-3.
Further, in view of the aforesaid observations and discussions, the guilt recorded of all the Accused for the offence punishable under Section 293 of IPC cannot be sustained in the eye of law. Hence, the same is quashed and set aside. Consequently, the order for imposition of sentence upon A-1, A-2, A-3 and A-4 also would not survive.
In view of the aforesaid observations and discussions and the findings recorded by us, we find that it would not be a case for enhancement of sentence imposed upon A-2. Hence, the revision being Criminal Revision Application No.443 of 2005 shall stand disposed of accordingly.
The R and P, including the original photographs in the iron trunk with lock and key in sealed condition, be returned to the trial Court.
The appeals are partly allowed to the aforesaid extent. Order in the respective appeals accordingly. Revision disposed of accordingly.
(Jayant Patel, J.) (Z. K. Saiyed, J.) vinod Top