Delhi District Court
State vs . Ajay Paudwal & Others on 24 June, 2023
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IN THE COURT OF SHRI YASHDEEP CHAHAL
Metropolitan Magistrate01 : New Delhi District : PHC : New Delhi.
FIR No.390/2008
P.S. : Connaught Place
Under Section : 292 & 34 IPC
State Vs. Ajay Paudwal & Others
JUDGMENT
ID number of the case : New No.39778/2016
DLND020000712008
Date of commission of offence : 01.09.2008.
Date of institution of the case : 22.11.2008.
Name of the complainant : SubInspector/Investigating Officer
Bhupesh Kumar, No. D193,
PIS No.16970034
P.S. Connaught Place, New Delhi.
Name of accused and address : (1) Ajay Podwal, S/o Shri Ram
Chandar, R/o CII/32, Tilak Lane,
Near India Gate, New Delhi.
(2) Deepak Kumar, S/o Shri
Mahinder Kumar, R/o 1349, Pushp
Vihar, Sector3, New Delhi110062.
(3) Sanjeev Kumar Rana, S/o Shri
Guna Lal, R/o 8/282, Dakshin Puri,
New Delhi110062.
Offence Complained of : Under Section : 292 & 34 of the
Or Proved Indian Penal Code, 1860.
Offence charged of : Under Section : 292 & 34 of the
Indian Penal Code, 1860.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date of judgment : 24.06.2023.
FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 1
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BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. By this judgment, this Court shall decide/disposeof case of the prosecution filed against accused persons, namely, Ajay Paudwal, Deepak Kumar and Sanjeev Kumar, for having committed the offence punishable under Section 292 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as "IPC").
2. It is the case of the prosecution that on 01.09.2008 at 5:45 p.m., during patrolling duty when complainant SubInspector Bhupesh Kumar along with Head Constable Kushal Malik and Constable Jagmal reached at Inner Circle, FBlock, near TGI Friday, one secret informer informed that three boys were selling Pornography CDs at Middle Circle, E & F Block, near Sun City Office, Connaught Place, New Delhi. Upon receiving secret information, complainant asked 45 passerby to join the raiding party but none agreed and left the spot on some reasonable ground. The complainant formed a raiding party and upon pointing out by the secret informer, apprehended all three accused persons who were selling Pornography CDs. Upon search of accused Ajay Paudwal, five Pornography DVDs with obscene pictures of men and women were recovered from one brown colour envelope, out of which two DVDs were taken out as sample.
FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 2 33. Upon search of accused Deepak Kumar, one black colour polythene containing six Pornography DVDs with obscene pictures of men and women were recovered, out of which two DVDs were taken out as sample.
4. Upon search of accused Sanjeev Kumar Rana, one white colour polythene containing nine Pornography DVDs with obscene pictures of men and women were recovered, out of which two DVDs were taken out as sample.
5. All sample DVDs were played in a nearby shop wherein men and women were indulged in pornographic acts. All six sample DVDs were kept in pulandas and sealed with the seal of BK. Thereafter, a case under Section 292 read with Section 34 of IPC was registered against all accused persons.
6. After completion of investigation, chargesheet under Section 292 read with Section 34 of IPC was filed in the Court concerned. Accused persons were summoned and requisite documents were supplied to them in compliance of Section 207 of Cr. P.C. FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 3 4
7. Thereafter, charge under Section 292 read with Section 34 of the Indian Penal Code, 1860 was framed against all three accused persons to which they pleaded not guilty and claimed trial.
8. During proceedings, accused Sanjeev Kumar absconded and was declared proclaimed offender vide order dated 02.11.2017 and accused Deepak Kumar alias Sadhu expired and subsequently, proceedings qua accused Deepak Kumar alias Sadhu were abated vide order dated 19.05.2023.
9. The trial was commenced and the matter proceeded to the stage of prosecution evidence. Prosecution examined following witnesses:
10. Head Constable Pramod Kumar, No. 516/ND was examined as PW1. He deposed on oath that on 01.09.2008 he was posted as Duty Officer from 4:00 p.m. to 12:00 midnight. On that day, he received a rukka through constable Jagmal sent by S.I. Bhupesh. On the basis of which he registered FIR in the present case, copy of which is Ex. PW 1/A (OSR), bearing his signatures at point A. Subsequently, he made endorsement on the rukka Ex. PW1/B, bearing his signatures at point A. After registration of FIR, he handed over copy of FIR and original rukka to constable Jagmal.
FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 4 511. PW1 Head Constable Pramod Kumar was not cross examined despite opportunity.
12. Constable Jagmal, No. 1357/ND was examined as PW2. He deposed on oath that on 01.09.2018, he was posted as constable at Police Station Connaught Place, New Delhi. On that day, he along with Sub Inspector Bhupesh, Head Constable Kushal Malik and Constable Dev Kumar was on beat duty near F & N Block, Connaught Place where one boy informed SubInspector Bhupesh Kumar that some persons were selling pornographic video CDs. Thereafter, they reached near Sun City Office and found three persons, namely, Ajay Paudwal, Deepak Kumar and Sanjeev. Upon their checking, five pornographic VCDs were recovered from the possession of accused Ajay Paudwal, six pornographic VCDs were recovered from the possession of accused Deepak Kumar and nine pornographic VCDs were recovered from the possession of accused Sanjeev Kumar. Sample CDs were kept in white pulanda and sealed with the seal of BK and were given serial numbers 1 to 6 respectively. Rest of the CDs were kept in separate pulanda and seized vide seizure memo Ex. PW2/A. Subsequently, I.O./SubInspector Bhupesh Kumar prepared rukka and handed over the same to him for registration of FIR. Thereafter, he got registered the present FIR and returned back at the spot and handed over original rukka and copy of FIR to SubInspector Bhupesh Kumar. Subsequently, accused persons were FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 5 6 arrested vide arrest memos Ex. PW2/B, Ex. PW2/C & Ex. PW2/D. They were personally searched vide personal search memos Ex. PW2/E, Ex. PW2/F and Ex. PW2/G, all bearing his signatures at point A respectively. Thereafter, his statement was recorded by the I.O. After that all police officials as well as three accused persons were brought to Police Station Connaught Place. The seized property was deposited in the Malkhana and he returned back to his duty. PW2 correctly identified all three accused persons as well as case property which was seized in his presence and sealed with the seal of BK.
13. During his crossexamination, PW2 deposed that on 10.09.2008 his duty hours were from 09:00 a.m. to 10:00 p.m. He could not tell the name of informer who had disclosed the above stated facts to SubInspector Bhupesh Kumar. He further deposed that they reached near Sun City Office at about 5:47 p.m. He affirmed that no public witness was cited in the arrest memo during arrest of accused persons. He further deposed that he went to Police Station at about 6:00 p.m. for registration of FIR and returned back at the spot at about 07:3507:45 p.m. Thereafter, I.O. recorded statement of Head Constable Kushal Malik and Constable Dev Kumar. Though, he could not tell the exact number of papers on which he had appended his signatures. He further deposed that all accused persons were arrested at about 6:00 p.m. and they were taken to Police Station at about 08:00 p.m. He further deposed that between FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 6 7 6:00 p.m. to 08:00 p.m., I.O./SubInspector Bhupesh was preparing the documents. He denied the suggestion that all the documents were prepared at P.S. Connaught Place. He further denied that he has deposed falsely at the instance of I.O.
14. Head Constable Kushal Malik, No. 392/PTC, Posted at Police Training College, Jharoda Kalan, Delhi was examined as PW3. He deposed on oath that on 01.09.2008, he was posted at Police Station Connaught Place as Head Constable. On that day, he along with Sub Inspector Bhupesh Kumar, Constable Jagmal and Constable Dev Kumar was on beat duty. During patrolling duty near F & N Block, one boy informed that some persons were selling pornographic video CDs. Thereafter, they reached near Sun City Office and found three persons, namely, Ajay Paudwal, Deepak Kumar and Sanjeev Kumar. On their personal search, five pornographic DVDs were recovered from the possession of accused Ajay Paudwal, six pornographic DVDs were recovered from the possession of accused Deepak and nine pornographic DVDs were recovered from the possession of accused Sanjeev. Two DVDs each were taken out in random as samples. Upon checking six sample DVDs in a nearby shop, the same were found containing pornographic video contents depicting men and women indulged in sexual activities. The checked sample DVDs were given serial Nos. 1 to 6 respectively and were kept in three separate cloth pulandas and sealed FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 7 8 with the seal of BK and were given exhibit Nos. 1, 2 & 3. The remaining recovered DVDs were kept in three respective separate cloth pulandas and sealed with the seal of BK and were given exhibit Nos. 1A, 2A & 3A respectively. After use, the seal was handed over to him. Thereafter, Sub Inspector Bhupesh Kumar prepared seizure memo Ex. PW2/A, bearing his signature at point A. Subsequently, I.O./SubInspector Bhupesh Kumar prepared rukka and handed over the same to constable Jagmal for registration of FIR. After sometime, constable Jagmal came back at the spot and handed over copy of FIR and original rukka to SubInspector Bhupesh Kumar. Thereafter, accused persons, namely, Ajay Paudwal, Deepak Kumar and Sanjeev Kumar were arrested vide arrest memos Ex. PW2/B, Ex. PW2/C and Ex. PW2/D and their personal search were conducted vide memos Ex.PW2/E, Ex. PW2/F & Ex. PW2/G, all bearing his signature at point B respectively. Thereafter, his statement was recorded by the I.O. After that all police officials as well as all three accused persons went to Police Station. The seized property was deposited in the Malkhana and he returned back to his duty. He duly identified all three accused persons in the Court.
15. During his crossexamination he deposed that on 01.09.2008 his duty hours were from 10:00 a.m. to 11:00 p.m. He could not tell the name of the informer who had disclosed the above mentioned facts to SubInspector Bhupesh Kumar. He further deposed that they reached FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 8 9 near Sun City Office at about 5:45 p.m. He affirmed that no public witness was cited in the arrest memo during the arrest of accused. He further deposed that constable Jagmal went to Police Station for registration of FIR at about 07:30 p.m. and returned back at the spot of incident after about half an hour. Thereafter, I.O. recorded statement of constable Jagmal and Constable Dev Kumar. He further deposed that he signed on about 45 documents including arrest memo, personal search memo and seizure memo and accused persons were arrested at about 09:30 p.m. Thereafter, the accused persons were taken to Police Station at about 09:30 p.m. after their arrest. He denied the suggestion that all the documents were prepared at Police Station Connaught Place. He further denied the suggestion that he has deposed falsely at the instance of I.O.
16. Constable Dev Kumar, No. 240/F, Posted at FRRO, New Delhi was examined as PW4. He deposed on oath that on 01.09.2008, he was posted at Police Station Connaught Place. On that day, he along with SubInspector Bhupesh, Constable Jagmal and Head Constable Kaushal were on beat duty at F & N Block. During patrolling, one boy informed SubInspector Bhupesh Kumar that some persons were selling pornographic video CDs. Thereafter, they reached near Sun City Office and found three persons, namely, Ajay Paudwal, Deepak Kumar and Sanjeev. They searched all three accused persons and found five pornographic DVDs were recovered from the possession of accused Ajay FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 9 10 Paudwal, six pornographic DVDs were recovered from the possession of accused Deepak and nine pornographic DVDs were recovered from the possession of accused Sanjeev Kumar. Two DVDs each were taken out as samples randomly. Upon checking all six sample DVDs in DVD player and TV in a nearby shop, all of them were found containing pornographic video contents depicting men and women indulging in sexual activities. All six checked DVDs were kept in three separate cloth pulandas and sealed with the seal of BK and were given exhibit numbers as 1, 2 & 3. The remaining recovered DVDs were kept in three separate cloth pulandas respectively and were also sealed with the seal of BK and pulandas were given exhibit numbers 1A, 2A & 3A. The seal after use was handed over to Head Constable Kaushal. Thereafter, SubInspector Bhupesh Kumar prepared seizure memo Ex. PW2/A, bearing his signature at point B. Subsequently, I.O./SubInspector Bhupesh Kumar prepared rukka and handed over the same to constable Jagmal for registration of FIR. After sometime constable Jagmal came back at the spot and handed over copy of FIR and original rukka to SubInspector Bhupesh Kumar. Thereafter, all three accused persons, namely, Ajay Paudwal, Deepak Kumar and Sanjeev Kumar were arrested vide arrest memos Ex. PW2/B, Ex. PW2/C & Ex. PW2/D respectively and their personal search were conducted vide personal search memos Ex. PW 2/E, Ex. PW2/F & Ex. PW2/G, all bearing his signatures at point C respectively. Thereafter, his statement was recorded by the I.O. After that FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 10 11 all police officials as well as all three accused persons went to Police Station. The seized property was deposited in the Malkhana and after that he returned back to his duty. PW4 duly identified all three accused persons in the Court.
17. Despite opportunity, PW4 Constable Dev Kumar was not crossexamined by Ld. Counsel for accused.
18. SubInspector Bhupesh Kumar, Posted as SHO, P.S. Rohini (North) was examined as PW5. He deposed on oath that on 01.09.2008 he was posted at Police Station Connaught Place, New Delhi. On that day, he along with Constable Jagmal, Head Constable Kushal Malik and Constable Dev Kumar was on beat patrolling duty at F & N Block, Connaught Place, where one boy met him and informed that some persons were selling pornographic video CDs near Sun City Office. Thereafter, they all reached near Sun City Office and asked 34 passerby to joining the investigation after telling the facts of the case, however, they all left without telling their names and addresses after telling their reasonable excuses. Thereafter, all police officials searched nearby and found three persons, namely, Ajay Paudwal, Deepak Kumar and Sanjeev Kumar. Thereafter, he offered all three accused persons, search of all police officials, before conducting the proceedings, however, they all refused to search them. Thereafter, he searched all three accused persons FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 11 12 with the help of other police staff and found five pornographic DVDs from the possession of accused Ajay Paudwal, six pornographic DVDs from the possession of accused Deepak Kumar and nine pornographic DVDs from the possession of accused Sanjeev Kumar. Two DVDs each were taken out randomly as samples and were given as serial Nos. 1 to 6 respectively. Thereafter, all the DVDs were checked by playing in a DVD Player and Television in a nearby shop and were found containing pornographic material depicting male and female indulging in sexual activities. The checked DVDs were sealed with the seal of BK by making a pulanda of white colour and were given exhibit numbers 1, 2 & 3. The remaining DVDs were kept in three separate cloth pulandas respectively and were also sealed with the seal of BK. The pulandas were given exhibit numbers 1A, 2A and 3A. The seal after use was handed over to Head Constable Kushal Malik. Thereafter, he prepared seizure memo and seized the case property vide seizure memo, already Ex. PW2/A, bearing his signature at point C. There were images of male and females on the envelope of said DVDs depicting sexual aroused photos. Thereafter he prepared the rukka and handed over the same to constable Jagmal for registration of FIR. Constable Jagmal went to Police Station and got the FIR registered and came back to the spot and handed over copy of FIR and original rukka to him. Thereafter, he prepared the site plan Ex. PW 5/A, bearing his signature at point A. After that he arrested and personally searched the accused persons vide memos already Ex. PW FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 12 13 2/B, Ex. PW2/C and Ex. PW2/D, Ex. PW2/E, Ex. PW2/F and Ex. PW2/G, all bearing his signatures at point D respectively. PW5 correctly identified accused Ajay Paudwal and Deepak Kumar as well as case property in the Court. The case property was deposited with MHC (M) and since the offence was bailable, all three accused persons were released on personal bonds. He further deposed that during investigation he recorded statement of Head Constable Kushal Malik, Constable Dev Kumar and Constable Jagmal and after completion of codal formalities filed the charge sheet before the concerned Court.
19. During his crossexamination PW5 deposed that his duty hours were not specific on the fateful day and being posted in Police Station, they remained on duty since morning till late night. PW5 further deposed that they reached near Sun City Office about 5:47 p.m. He affirmed that he did not give notice under Section 160 Cr.PC to the public persons. He volunteered that it was not given due to paucity of time. He further deposed that at about 07:20 p.m. the rukka was handed over to constable Jagmal and he returned back at about 08:00 p.m. He denied the suggestion that he had not given the notice as the case property was planted upon accused. He further denied that all the documents were prepared in the Police Station. He further denied that he had not cited any public person as witness as the present case was planted on the accused or that he has deposed falsely.
FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 13 1420. After recording of evidence of prosecution witnesses, P.E. was closed.
21. Thereafter, statement of accused was recorded under Section 281 read with Section 313 of Cr.PC wherein all the incriminating circumstances appearing in the evidence against the accused were put to him to which he replied that he has been falsely implicated in the present case. However, he did not lead any evidence in his defence.
22. Thereafter, the matter was fixed for final arguments. Final arguments were advanced by Ld. APP for State and Ld. Counsel for accused.
23. Ld. APP for the State submitted that all the witnesses have invariably supported the case of the prosecution and have succeeded in taking it to a logical end.
24. Per contra, it was submitted by Ld. Counsel for the accused that the story of the prosecution suffers from material inconsistencies and the case has not been proved beyond reasonable doubt.
25. The fundamental rule of criminal law postulates that the burden of proving the case rests on the shoulders of the prosecution. The FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 14 15 case of the prosecution is that the accused was found to be selling pornographic DVDs in printed pornographic envelopes and thus, committed the offence of obscenity.
26. I may now appreciate the evidence on record so as to ascertain the guilt of the accused. The prosecution has examined five witnesses and notably, all of them are police witnesses. Before proceeding, I may reproduce Section 292 of IPC for ready reference.
27. Section 292 of the Indian Penal Code reads as under: [292. 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 whole, such as to tend to deprave and corrupt person, 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, 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 FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 15 16
(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 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.]]
28. I may briefly lay down the ingredients required for proving the offence under question. For bringing home the charge under Section 292 IPC, it is essential that -
(a) The object being put for sale must be obscene i.e. it should either be lascivious or must appeal to the prurient interest or the effect of such obscene object, taken as a whole, must be to deprave or corrupt any person;
FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 16 17(b) Such object must be put for a sale or exhibited publicly, apart from other actions such as import, export, conveyance etc. of such object;
(c) The exception attached to Section 292 categorically indicates that the Section does not extend to any object the publication of which is justified on the grounds of public good or for any religious purpose.
29. Thus, the crucial consideration before the Court is to determine the legal meaning of the word obscenity. It may be noted that the meaning of obscenity has traversed through a series of divergent judicial views and has had a unique journey in criminal jurisprudence. One of the primary reasons for divergence on this concept is that it imposes a restriction on free expression which is enshrined as a fundamental right under Article 19 of the Constitution. Put otherwise, Section 292 creates a restriction on the fundamental right under Article
19. So far as Section 292 is concerned, Hon'ble Supreme Court of India in 'Ranjit D. Udeshi Vs. State of Maharashtra, 1965 (1) SCR 65, has expressed the meaning of obscenity in the following terms:
(i) That which depraves and corrupts those minds which are open to immoral influences;
(ii) That which suggests thoughts of most impure character;
(iii) That which is hardcore pornography; FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 17 18 (iv) That which has a substantial tendency to corrupt by arousing lustful desires; (v) That which tends to arouse sexually impure thoughts; (vi) That which passes the permissive limits as judged by our community standards.
30. It is fairly understood that obscenity changes colours from society to society and from community to community. Even within the same community, obscenity may bear a different meaning in a different time frame. Thus, what could be considered as obscene today may not be considered as such after ten years from now. In India, we had first adopted the Hicklin Test which originated from the English case Regina Vs. Hicklin (1868), wherein obscenity was assessed from the standard of an individual who was open to immoral influences and who was likely to be corrupted by the material in question. The vulnerability of the individual is the central concern here. Notably, this test was adopted in Ranjit D. Udeshi (Supra). Thereafter, we came to the Miller Test which originated from a decision of the U.S. Supreme Court in Miller Vs. California (1973). As per this test, a work is to be considered obscene if an average person would find it corruptible or patently offensive in a sexual way. It was a shift from a vulnerable person to reasonable person. Thereafter, in Aveek Sarkar Vs. State of West Bengal, 2014, the Hon'ble Supreme Court adopted the test of an average person for ascertaining FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 18 19 obscenity by applying the prevailing community standards. Thus understood, obscenity is to be adjudged by looking at the effect of the offensive material on an average person by applying community standards. The Court need not concern itself with an extra sensitive person whose prurient interest may be aroused even by an otherwise non obscene content. To understand this, one may take the example of a medical book wherein naked pictures may be published for the purpose of learning and on the contrary, one may take the example of a calendar wherein naked pictures are published for the purpose of pornography or modeling. An average person cannot be expected to find the former as obscene and the same may be protected under the law. However, the same protection cannot be given to the latter which is published solely for appealing to the sexual interests of persons and which shall have the same effect as intended on an average person.
31. I may also briefly look at the nature of the offence under Section 292 IPC. The offence of obscenity is not only an offence based on morality, as generally understood. Rather, the offence of obscenity justifies the test of harm principle and cannot be said to be a harmless offence solely premised on morality. An act of obscenity based on hardcore pornography is an ugly depiction of women in an objectified manner and the offence and its social implications must be understood in that light. Pornographic obscenity revolts against the entire feminist FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 19 20 jurisprudence which is duly enshrined in the Constitution and which guarantees equal protection of law to women and men alike. Such obscenity creates a breeding ground for discrimination against women and may even have a cause and effect relationship with the offences against women. Infact, this consequential effect of obscenity has been acknowledged by the Parliament in the Indecent Representation of Women (Prohibition) Act, 1986, wherein indecent representation of women is defined as depiction in any manner of the body of a women in such a way as to have the effect of being indecent or derogatory to women or in such a way which is likely to deprave or corrupt the public morality. One may note that the Act of 1986 uses a language similar to that used in Section 292 of IPC and, therefore, it can be understood as a statutory recognition that pornographic obscenity may cause direct harm to women and may violate the equal protection guarantee.
32. It is the foremost requirement of criminal law that the prosecution must establish three essential attributes - actus reus, mens rea and causal link between the crime and the accused on trial.
33. The prosecution has examined five witnesses in this case. All the witnesses are police witnesses. There is no whisper about any public witness. The importance of public witnesses in such cases has been highlighted time and again by the Hon'ble High Court. In Anoop FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 20 21 Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi had observed as under: "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 shopkeepers 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".
34. The legal position, as settled, is that as a matter of prudence, the investigating officers must look for independent witnesses to corroborate the factum of commission of offence.
35. However, the absence of any independent witnesses may not per se vitiate the entire case of the prosecution if the same can be duly explained. I may usefully refer to the decision of the Hon'ble Supreme Court in Tahir v. State (Delhi) (1996) 3 SCC 338 wherein the Court noted that although there is no rule of evidence that conviction cannot be based on the sole testimony of police officials, however, prudence demands a more careful scrutiny of the testimonies of police officials as they may be considered to be interested in the outcome of the case. The rule of prudence requiring independent witnesses is born out of this FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 21 22 careful scrutiny and requires that in cases, when the timing of the offence and surrounding circumstances indicate that it was fairly possible for the investigating officer to procure independent witnesses, and he failed to do so nonetheless, the case of the prosecution would meet a reasonable doubt in the eyes of the law, and the benefit shall accrue to the accused.
36. During evidence, the specific question was put to the PWs regarding their failure to involve public witnesses. It has been deposed that various witnesses were approached, however, they refused to join the investigation. Although, the reason does not appear to be justified, however, whether the same could be used to demolish the entire case of the prosecution or not, has to be seen in the light of the overall evidence on record. In this case, PWs 3, 4 & 5 have consistently deposed that the pornographic DVDs were recovered from the accused and two of them were played on a DVD player and they were found to be containing pornographic videos. PW5 has also deposed that the DVDs were contained in envelopes on which pornographic visuals were published. Thus, the alleged obscene content is found in two forms (i) Video content as available in the DVDs and (ii) Printed envelopes wherein the said DVDs were kept. So far as the video content is concerned, the only statement which is available on record is that the same was played in a nearby shop. There is no mention of the name of the shop or of the owner of the shop. It is difficult to believe that the owner of the shop could not FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 22 23 have been made a witness specifically when he permitted the PWs to play the said DVDs in his shop. I am of the view that on this aspect, the prosecution has failed to prove the contents of the DVDs. Thus, it has not been established that the DVDs in question actually contained pornographic content.
37. So far as the printed envelopes are concerned, the same (including the DVDs) are a part of the case property and were produced in the Court by the MHC (M). The entire case property was found to be in conformity with the testimonies of PWs. Later, the case property was not disputed by the accused and a specific statement to that effect is recorded in the testimony of PW5. The accused has been correctly identified by all the PWs. Even during crossexamination, not even a single question was put by the accused to raise a doubt on the printed envelopes. The PWs have given a consistent testimony in that regard and in the absence of any question (or even a suggestion) to impeach the printed portion on the envelopes, this Court has no reason to disbelieve and reject the consistent testimonies of the PWs. The only suggestion given by the accused in crossexamination is that the case property was planted by the PWs on the accused and the same has been categorically denied by all the PWs. Furthermore, in the absence of any question to impeach the credit of the PWs on this aspect, undue weight cannot be given to the said suggestion so as to discard the testimonies of the PWs.
FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 23 24In the present case, the absence of public witnesses regarding the aspect of seizure can be understood as the case pertains to the seizure of pornographic DVDs and unconcerned public persons may not want to associate themselves with a case of this nature. Even otherwise, the case property has been admitted by the accused during the testimony of PW5 and no dispute has been raised with respect to the same. There is no dispute on seizure.
38. The printed envelopes contain pornographic depictions portraying women in naked form or men and women in sexual acts. The said DVDs were exhibited for public sale and the nature of content revolts against the sexual morality of an average person and had the potential of depraving an average person's sense of sexuality. On applying the community standards, exhibition and depiction of hardcore pornographic content falls within the definition of obscenity as defined under Section 292 of IPC, as the community has a legitimate interest in curbing public exhibition and display of such content.
39. The underlying theme behind the law of evidence is the judicial satisfaction of the Court. There is no rigid rule of law that shuns the testimonies of police officials, however, the evidence on record must inspire confidence of the Court and inconsistencies must be explained to the satisfaction of the Court. On an overall view of the evidence, specifically in view of the questions asked during crossexamination, I FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 24 25 find that the case of the prosecution is consistent and worthy of credit so far as the printed envelopes are concerned.
40. In view of the aforesaid discussion, I am of the considered view that the prosecution has successfully proved the guilt of the accused beyond reasonable doubt. Accordingly, the accused is convicted for the commission of offence under Section 292 IPC.
41. Let convict be heard on the point of sentence.
42. This judgment runs into 25 pages. Let a copy of the judgment be supplied to the convict free of cost, as per rules.
Digitally signed by YASHDEEP YASHDEEP CHAHAL CHAHAL
Date: 2023.06.24 16:07:25 +0530
Announced in the Open Court (YASHDEEP CHAHAL)
On 24th June, 2023. M.M.01 : New Delhi District
Patiala House Courts
New Delhi.
FIR No.390/2008 State Vs. Ajay Poudwal & Others Page No. 25