Delhi District Court
State vs . Tej Pal Singh on 27 September, 2019
State vs. Tej Pal Singh
IN THE COURT OF MM-05, EAST, KARKARDOOMA COURTS, DELHI
Presided by : Ms. Aakanksha Vyas
Cr. Case no. 9615/16
STATE Vs. Tej Pal Singh
FIR No. 123/04
PS Krishna Nagar
JUDGMENT:
a) Case No. : 9615/16
b) Name, parentage and : Tej Pal Singh s/o Diwari Singh,
address of the accused r/o 2/11, New Lathalpur,
Krishna Nagar, Delhi.
c) Offences charged : 292 IPC
d) Plea of accused : Not guilty
d) Date on which judgment was : 16.09.2019
reserved
f) Final order : 27.09.2019
g) Date of decision : Acquittal
FIR No.123/04 pages 1 out of11
State vs. Tej Pal Singh
FINAL ORDER
1. Vide this order, I shall dispose off the present case in which the accused Tejpal herein has faced trial for the commission of offence under section 292 Indian Penal Code (hereinafter referred to as the IPC). Briefly put, the case of the prosecution is that on 18/3/2004 at about 11:50 pm at shop no. 2/11 New Lyallpur Krishna Nagar, the accused was found selling one pornographic CD and was also found in possession of four pornographic CDs for the purpose of sale. FIR no. 123/04 PS Krishna Nagar was registered against the accused and after completion of investigation, chargesheet was filed against the accused for the commission of offence u/s292 IPC. The accused was summoned and charged with the commission of the abovesaid offence to which he pleaded not guilty and claimed trial.
2. To prove its case, the prosecution examined four witnesses. PW1 is HC Brij Pal who registered the present FIR and proved the same as Ex. PW1/A (OSR) and also proved the endorsement made by him on the rukka i.e. Ex. PW1/B. PW2 is Ct. Yogender, who was on patrolling duty on the day of the alleged offence in Chander Nagar area. PW4 HC Jai Prakash is the investigating officer (hereinafter referred to as the IO) of this case who proved the proved the rukka Ex. PW1/B, the seizure memo Ex. PW2/A whereby he seized the 100/- note given by him to PW1 for purchase of CD from accused as decoy customer, Ex. PW2/B whereby he seized the four CDs from the shop of the accused, the site plan prepared at the instance of FIR No.123/04 pages 2 out of11 State vs. Tej Pal Singh PW1 i.e. Ex. PW4/A as well as the arrest and personal search memos of the accused i.e. Ex. PW3/B and C, all the documents having been pre- pared by him. PW3 is Ct. Dayanand who assisted the IO during investiga- tion.
The testimony of PWs shall be discussed during appreciation of evidence. After completion of the prosecution evidence, the statement of the accused was recorded under section 313 CrPC in which he denied the case of the prosecution and alleged that he was falsely implicated. He pleaded that, "On 18.03.04 at 11.50 pm, I had made a call at 100 number with regard to quarrel with my friend at A-94, old Anarkali, near machliwala Gurudwara in this regard DD no. 39A was registered in the PS. Till the police arrived the matter was settled. The police told that al- though the matter has been settled the call is to be closed in PS. Therefore, I along with my brother in law reached at PS where on the pretext of compromise, the police officials had taken my signatures on some papers and I was released free. Later on after about on 21.12.2005 the police had given notice me to appear before the court in the abovesaid case. On coming to know the facts of the case, I had preferred a Writ Petition bearing no. 1789/06 before the Hon'ble High court of Delhi for quashing the proceedings."
However the accused did not lead defence evidence. Thereafter final submissions were heard.
FIR No.123/04 pages 3 out of11
State vs. Tej Pal Singh
3. In the present case, the accused has been charged for the commission of offence u/s 292 IPC. Therefore let us examine the legal provision of section 292 IPC. Section 292 (1) defines what is considered to be obscene. Section 292 (2) IPC penalizes certain activities with respect to an obscene object. Section 292 (2) provides as follows:
" 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 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."
FIR No.123/04 pages 4 out of11
State vs. Tej Pal Singh
4. I have carefully perused the file and examined the testimonies of the witnesses and I find that various facts have come on record which cast a strong doubt upon the case of the prosecution. To begin with, the presence of PW3 and PW4/IO at the spot i.e. shop no. 2/11 New Lyallpur Krishna Nagar at the time the alleged raid was conducted and the incriminating material was seized is itself in doubt for the following reasons.
PW4 has deposed that on the day of the incident, he was coming back alongwith PW3 after attending DD no. 39 A and at 11:30pm, they reached New Lyallpur where secret informer met them and informed them about a person selling blue CDs at Machiwali gali and thereafter PW2 who was on patrolling duty met them. PW4 went on to depose that PW2 was made a decoy customer and sent to the shop in question with 100/- for purchasing CD and after receiving signal from PW2, at about 11:50 pm, PW3 and PW4 went to the shop and apprehended the accused. PW2 has also deposed that he met PW4/IO and PW3 at 11:30 pm and PW3 and PW4 raided the shop no. 2/11 New Lyallpur Krishna Nagar at 11:50 pm. In the FIR Ex. PW1/A (OSR) also, the time period of the offence in question is mentioned as "11:30 pm to 11:50 pm". However, the above testimony of PW4/IO is completely at odds with the following documents which have come on record. The first document is copy of DD entry no. 39A which was placed on record by the PW4 himself i.e. Ex. PW4/X as per which it was a PCR call received at 11:50 pm which was handed over to PW4. The obvious question which therefore arises is that if DD no. 39A was handed over to PW4 at 11:50 pm which admittedly he attended to prior to FIR No.123/04 pages 5 out of11 State vs. Tej Pal Singh apprehension of the accused, it is not possible that he conducted the raid on the shop in question at 11:50 pm as deposed by the PWs. Further, PW4/IO was confronted with the documents Ex. PW4/D1 i.e. the certified copy of the proceedings undertaken in kalandra u/s 107/151 CrPC. As per Ex. PW4/D1, on 18/3/2004, PW4 had attended another call on 100 no. made by one Usha Rani recorded vide DD no. 32A in the PS at 9:50 pm and at 11:25 pm, the IO/PW4 was present at the PS after arresting one Pradeep vide kalandra u/s 107/151 CrPC pursuant to the said call. The obvious question which again arises is that if the IO was present in the PS at 11:25 pm he could not have been present at New Lyallpur at 11:30 pm. In fact during cross examination, PW4 deposed that he was present in the PS at 11:30 pm on 18/3/2004. No explanation has been provided by PW4 for this glaring discrepancy other than that his own watch was behind time and he had not seen the clock installed in the PS on that day. This expla- nation also runs in the face of the testimony of PW2 who has affirmed that he met PW4 and PW3 at 11:30 pm and the raid was conducted at 11:50 pm and that of PW3 who deposed during his cross examination by the Ld. APP that the raid was conducted at 11:50 pm. To sum up, the clear mismatch in the testimony of PW4 and the abovementioned documents raise a strong suspicion upon the factum of the alleged raid having been conducted at shop no. 2/11 New Lyallpur Krishna Nagar on 18/3/2004. Moreover, PW4 has deposed that he came back to the PS at 2:00 am on 19/3/2004 yet the DD entry made by PW4 regarding completion of proceedings qua the present FIR has been made FIR No.123/04 pages 6 out of11 State vs. Tej Pal Singh only at 11:40 am as per Ex. PW4/Y. This delay is also unexplained and impinges the fairness of the investigation. At this stage, it also becomes pertinent to refer to the plea of defence. As mentioned in the preceding paragraph, the accused has pleaded that on 18/3/2004, he had made a call on 100 no. at 11:50 pm vide DD no. 39A as he had a quarrel with his friend At A-94 Old Anarkali but the matter was settled and subsequently the police took him to the PS and falsely implicated him in the present case. Although PW3 denied that it was the accused who made the said call on 100 no., PW4 admitted during cross examination that on 18/3/2004, call on 100 no. which was received vide DD no. 39A was indeed made by the accused. Admittedly, PW4 had attended that call and as per the arrival entry of PW4 i.e. Ex. PW4/Y, the said call was found to be bogus as when PW4 reached at the spot i.e. A-94 Old Anarkali, no quarrel was found to have taken place. The abovesaid admission by PW4 therefore lends credence to the plea of defence taken by the accused.
5. Moving on, the place of recovery of the incriminating material i.e. the pornographic CDs is shop no. 2/11 New Lyallpur Krishna Nagar i.e. a public place. Yet, no public witness was joined in the recovery or arrest proceedings. PW2 has deposed during his cross examination that IO had asked 4-5 public persons to join investigation but none agreed and went away without disclosing their identity but no written notice was given to them. PW2 further deposed that IO had asked neighbours to join investigation and they refused but he also deposed that no written notice was given to them and IO had not recorded their names and addresses. In FIR No.123/04 pages 7 out of11 State vs. Tej Pal Singh other words, the testimony of the PWs does not reflect that the IO/PW4 made sincere efforts to join the public witnesses in as much as no notice was given to public persons to join investigation. The names of the public persons who were asked to join investigation is also not on record. Even section 100 (4) CrPC casts statutory duty upon the official conducting search to join two respectable persons of the society, which has not been done in the present case. The police officers are also entrusted with ample power under the provisions of Cr.P.C. to initiate proceedings u/s 187 IPC if any person does not cooperate with them despite giving notice. The non joining of independent witness casts a serious doubt over the fairness of the investigation by police. In this regard, reliance is placed upon the judgment in the case titled Anoop Joshi Vs. State 1992(2) C.C. Cases 314 in which it was observed as under:
"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 rigors 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".
FIR No.123/04 pages 8 out of11
State vs. Tej Pal Singh
Similar observations have been made in cases titled Narsi v. State of Haryana 1998 (4) Crimes 105 (SC) and State of Rajasthan v. Teja Singh 2001 (II) AD (SC) 125.
6. Next, the arrival and departure entry of PW2 who was allegedly on patrolling duty in the area and joined the investigation with the IO/PW4 and PW3 is a vital piece of evidence, but the same has also not been proved on record. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per the PPR rules. It is apposite at this juncture to reproduce Chapter 22 Rule 49 of Punjab Police Rules, 1934, which provides as under:-
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. Note:-The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
PW2 was specifically questioned regarding his departure entry but he deposed during cross examination that he cannot tell the details of his departure entry on the date of the incident. In view of the fact that the presence of PW4/IO is rendered suspicious in the present case as discussed in the preceding paragraph, non joining of public witnesses and FIR No.123/04 pages 9 out of11 State vs. Tej Pal Singh the failure to place on record the departure entry of PW2 has further dented the case of the prosecution.
7. Further, it must be noted that the present investigation commenced on the basis of a secret information as deposed by PW4. However the se- cret informer was not examined in the court. Even the said secret informa- tion was not reduced into writing. It has been held by the Hon'ble Delhi High court in Surender v. State MANU/DE/0873/2009 that:
"As indicated in Kanhai Mishra alias Kanhaiya Misar v. State of Bihar 2001 CriLJ 1259, secret information alleged to have been received by an investigating officer without disclosing its source cannot be made the basis to prove a circumstance. In Bhugdomal Gangaram & Ors. v. State of Gujarat 1983 CriLJ 1276, the Supreme Court with regard to information, which the prosecution had received, observed as under:
'But since the informant has not been examined as a witness, the evidence of P.W. 12 that he was informed that accused Nos. 3 and 4 would be coming behind the truck in a taxi is not admissible.' ... The secret informer has not been produced in court and, therefore, the secret information which forms the basis of such seizure is not admissible."
Yet another intriguing fact that has come on record in the present case is that the incriminating material as well as the 100/- note allegedly FIR No.123/04 pages 10 out of11 State vs. Tej Pal Singh given by the IO/PW4 to the accused were seized by him using the seal of RSB i.e. a seal which does not correspond to his initials. No cogent explanation has also been furnished as to why the IO did not use his own seal or why a seal belonging to him was not present in his IO kit.
8. It is settled law that in a criminal case, the prosecution is under the obligation to prove the case against the accused beyond all reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. Accused cannot be convicted on the basis of suspicion or assumptions and suspicion howsoever grave cannot take place of proof. In light of the preceding discussion, it is evident that the case of the prosecution is riddled with inconsistencies. Hence the case of the prosecution is not proved beyond all reasonable doubt. Hence accused stands acquitted.
Announced in the open court on Digitally signed by AAKANKSHA AAKANKSHA VYAS Location: Court No.3, Karkardooma Courts, Delhi VYAS Date: 2019.09.27 16:11:05 this day i.e. 27.09.2019 +0530 (AAKANKSHA VYAS) MM-5, East, KKD Courts, Delhi 27.09.2019 FIR No.123/04 pages 11 out of11