Delhi District Court
State vs . Rakesh Kumar on 20 February, 2008
IN THE COURT OF SURESH KUMAR GUPTA
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
FIR NO.149/2003
State Vs. Rakesh Kumar
U/s 292 IPC
PS. Welcome
1. Sl. no. of the case 839 dtd. 18.01.08 RBT
433 dtd. 02.07.03Original
2. Date of commission of offence 26.04.03
3. Date of Institution 02.07.03
4. Name of the Complainant ASI Devi Ram, PS, Welcome,
Delhi
5. Name of accused Rakesh Kumar S/o Devender
Shah R/o House of Dulhe
Guddar, First Pusta, Usmanpur,
Delhi
6. Offence Complained or proved U/s 292 IPC
7. Plea of the accused Pleaded not guilty
8. Arguments heard /Order reserved on 14.02.08
9. Date of such order 20.02.08
10.Final Order Convicted
J U D G M E N T
1. The brief facts of the prosecution case are like this. On 26.04.03 at 3.45 PM near Ganda Nala a police party headed by ASI Devi Ram received a secret information that accused is selling obscene books at Old Seelampur, Delhi who can be apprehended on immediate raid. On this information public persons were asked to join them but none of them agreed as a result a raiding party of police officials was formed. The police party reached at 3.35 PM near Railway Phatak, Old Seelampur, Delhi where accused was found selling books on road side patri including obscene books. 17 books contained various naked pictures of ladies and gents including pictures showing them in intimate relations. The books were sealed in a pullanda and sealed with seal DR and taken into possession vide fard Ex.PW2/A. Sample seal after use was handed over to Ct Sohan. Rukka was prepared and sent to PS through Ct Sohan upon which FIR was registered. After usual investigation charge sheet was submitted U/s 292 IPC for trial.
2. Accused put his appearance. Copies of challan were given to him. After hearing, charge U/s 292 IPC was framed against him on 05.09.04 by my Ld. Predecessor to which he pleaded not guilty and claimed trial. Prosecution examined 4 witnessess. Prosecution evidence was closed. Statement of accused U/s 313 Cr.P.C. was recorded. His defence is of denial simplictor. However, no defence evidence was led.
3. Prosecution examined 4 witnessess. PW1 HC Nanu Ram has proved FIR Ex.PW1/A.
4. PW2 Ct Suman Stated that on 26.04.03 he along with HC Suresh Chand and ASI Devi Ram was on patrol duty and reached at 3.35 PM near Ganda Nala, GT Road, Delhi where a secret information was received by ASI Devi Ram that one person is selling obscene books on road side patri, Old Seelampur, Delhi who can be apprehended on immediate raid. On this information 45 passerby were asked to join them but none of them agreed and left the spot without telling their names and addresses. A raiding party of police officials was formed. They reached at 3.45 PM near Railway Track, Old Seelampur. The accused was apprehended while selling the obscene books. 17 books were found obscene which contained naked pictures of ladies and gents and pictures showing them in intimate relations. All the 17 books were wrapped in a cloth and sealed with seal DR and taken into possession vide fard Ex.PW2/A. Seal after use was handed over to him. Rukka Ex.PW4/A (exhibited in the testimony of PW4) was prepared and sent to PS through him for registration of case upon which FIR was registered. Site plan was prepared. The accused was arrested. Personal search and arrest memo Ex.PW2/B&C were prepared. His statement was recorded. He has identified the 17 books produced in the court as recovered from the possession of the accused. In the cross examination he stated that about 100 books were found at that time. 17 books were seized. They did not find anyone purchasing the books from the accused. There are other shops at the spot but no one was called from those shops to become a witness. The suggestion is denied that books were not recovered from the accused. The suggestion is denied that no investigation was done at the spot.
5. PW3 ASI Suresh Pal has corroborated the version of PW2 in his chief examination and stated in the cross examination that all the books were not taken into possession. Only 17 books were seized. There are other shops at the spot but no one was called from those shops to become a witness. The suggestion is denied that books were not recovered from the accused. The suggestion is denied that no investigation was done at the spot.
6. PW4 ASI Devi Ram is the investigating officer of this case. He has corroborated the version of PW2&3 and further added that he prepared site plan Ex.PW4/B, recorded statements U/s 161 Cr.P.C. of witnessess, deposited the case property in the malkhana and submitted the challan in the court for trial. He has identified the 17 books produced in the court as recovered from the possession of accused. In the cross examination he stated that 100/125 books were at the spot. Only 17 books were seized. No one was purchasing the books from the accused at that time. The writing work was done while sitting on the road side. There are other shops but no one was called from those shops to become a witness. The suggestion is denied that books were not recovered from the accused. The suggestion is denied that no investigation was done at the spot.
7. Section 292 IPC says that any object shall be deemed to be obscene if (i) it is lascivious of (ii) it appeals to the prurient interest, or (iii) its effect, or (where it comprises two or more distinct items) the effect of any of its items, 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.
8. The test of "obscenity" was laid down by Cockburn, CJ in R V Hicklin, (as reported in Ranjit D. Udesha Vs. State of Maharashtra AIR 1965 SC
881) I think the test of obscenity is this: Whether the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of the sort may fall.... It is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thought of a most impure and libidinous character.
9. In state of UP Vs. Kunji Lal AIR 1970 ALL 614, it was held by their lordship that when nude pictures are included in a book which deals with intimate side of sex life, without any reference to the subjectmatter, but as a cheap medium for obtaining, greater circulation of the book, the only inference, that can be drawn, is that they have been included therein with an idea to arouse sexual desire in the readers. Such nude pictures are pornographic and as such obscene.
10. I have heard Ld. APP, Ld. counsel for the accused and perused the entire evidence on record. Prosecution examined 4 witnessess in order to prove its case. The testimony of PW2 to 4 is material in order to determine the guilt of the accused as all of them were members of raiding party.
11. I have perused their testimony. Their testimony clearly shows that all of them were on patrol duty and reached at 3.35 PM near Ganda Nala, GT Road, Delhi where a secret information was received about the sale of obscene books by the accused on the road side patri at Old Seelampur. They constituted a raiding party as public persons refused to join them and left the spot without disclosing their names and addresses. No question or suggestion is put to any of the PWS that they did not receive any secret information or constituted a raiding party. No question or suggestion is put to any of the PWS that they did not ask any public person to join them meaning thereby that this part of examination stands admitted.
12. The police raiding party reached at Patri, Railway Phatak, Old Seelampur, Delhi. The accused was found selling the books. There is no question or suggestion to the PWS that accused was not selling the books at the relevant time. It shows that he has admitted the factum of selling the books at the relevant time. The testimony of PWS further shows that 17 books were found obscene. The pictures of ladies and gents are naked and showing them in intimate relations. The testimony of PWS clearly shows that they apprehended the accused while selling the books including obscene books. 17 books were found obscene as it contain naked photographs of ladies and gents and also showing them in intimate relations. The recovery stands proved from the testimony of PWS.
13. The books recovered from the possession of the accused contain naked photographs. The pictures also show ladies and gents in intimate relations. This is a cheap way to get maximum circulation of such kind of books. Such kind of books are printed with an idea to arouse sexual desire in the minds of readers as such books are likely to deprave and corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall. Such kind of books have tendency to deprave and corrupt the minds of all kinds of readers of such books. Such naked pictures are nothing but pornographic and as such are obscene.
14. Ld. counsel submitted that no independent witness was associated though there are number of shops as such non association of public persons creates doubt over the recovery and testimony of police officials alone is not sufficient to base the conviction of the accused. Heard and perused the record. The testimony of PWS shows that they asked public person to join them at the time of constituting the raiding party but none of them agreed. It means certain efforts were put in to join the public persons but none of them agreed to join them. It is correct that certain shops were on the road side but no one was associated from those shops at the time of seizure of books. The testimony of PWS is consistent. The testimony of PWS cannot be discarded merely on the score that they are police officials.
15. The testimony of PWS cannot be discarded merely on the score that they are police officials. Their testimony is consistent without any motive on their part to implicate the accused. The accused has failed to shatter them during the course of cross examination and nothing favourable has come on record. In these facts, the testimony of PWS cannot be discarded merely on the score that no independent witness was associated and they are interested in the success of their case. Reliance is placed in State of Kerala Vs. M M Mathew and another, AIR 1978 SC 1571 and A R Khima Vs. State of Saurashtra AIR 1956 SC 217. The arguments of Ld. counsel do not hold water.
16. The testimony of PWS is consistent without any contradiction on the record which clearly shows that accused was found in possession of 17 books which are obscene. Hence, their testimony is relied upon.
17. Hence, I have no hesitation to hold that prosecution has prove its case against the accused beyond shadow of reasonable doubt and accordingly accused is held guilty U/s 292 IPC and convicted. Put up for quantum of sentence.
ANNOUNCED IN THE SURESH KUMAR GUPTA
OPEN COURT ON 20.02.08 METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS,
DELHI / 20.02.08