Delhi District Court
State vs . Raj Kishore Mehto on 21 May, 2011
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 698/05
P.S. Malviya Nagar
U/s 292 IPC
State Vs. RAJ KISHORE MEHTO
JUDGMENT :
a. Sl. No. of the case : 198/2
b. Date of Institution : 29.08.2005
c. Date of Commission of Offence : 06.08.2005
d. Name of the complainant : HCt. Attar Singh
no. 204/SD
e. Name of the accused and his : Raj Kishore Mehto
parentage and address S/o Sh. Jagannath
R/o S82/226, Jagdamba Camp
Malviya Nagar, New Delhi.
f. Offence complained of : U/s 292 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 30.04.2011
i. Final Order : Acquittal
j. Date of such order : 21.05.2011
FIR no. 698/05 Page 1 of 8
1. The accused in this case was sent up for trial for the commission of offence U/s 292 IPC.
2. The facts in brief are that on 6.08.2005 at about 10.10 pm while HCt. Attar Singh was on petrolling along with Ct. Sudhir secret informer met him and shared information that one person would come from the side of Khirki Bus Stand who is having blue film CD so they reached at T Point, B Block, Punchsheel Vihar and apprehended the accused who was found in possession of 10 CDs so tehrir was prepared and present case FIR no. 698/01 was got registered in PS Malviya Nagar. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing the other formal investigation, the challan was presented before the court for trial u/s. 292 IPC against the accused.
3. As a prima facie case was made out against the accused , charge was framed against the accused on 19.11.2008 U/s. 292 IPC to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has produced and examined three witnesses i.e. HCt. Suresh Kumar as PW1, HCt. Sudhir as PW2 and ASI Attar Singh as PW3.
5. PW1 HCt. Suresh Kumar has testified that on 6.08.2005 on receipt of rukka through Ct. Sudhir, he recorded formal FIR Ex.PW1/A and put his FIR no. 698/05 Page 2 of 8 endorsement on rukka Ex.PW1/B. Ld. Counsel for accused did not prefer to cross examine this witness.
6. PW2 HCt. Sudhir has testified that 6.8.05, while petrolling with HCt. Attar Singh, near Sai Baba Mandir, Khirki Extn., and they received secret information that one person would come from the side of Khirki Bus Stand who is having blue film CD. Request was made to 45 passer byes but none came forward. Thereafter, at about 10.10 PM they reached at T Point, B Block, Punchsheel Vihar and there accused present today in the court was apprehended. Accused was found in possession of 10 CDs. Case property was sealed with the seal of ASY and seized vide memo Ex.PW2/A. IO prepared tehrir Ex.PW2/B and he got the case registered. Accused was arrested and his personal search was conducted vide memo E.xPW2/C and D. PW2 identified the 10 CDs as Ex.P1 collectively.
During cross examination PW2 has testified that secret information was received when they both were standing and he cannot tell the age of Mukhbir (objected to) neither can he tell the height as well as the color of clothes of the secret informer. Near Sai Baba Mandir at a distance of around 20 meters there are residential houses and they were on bike and they had not gone to the houses to call residents to join us and no written notice was served upon any of the persons to join and that the information was received at 10.00 pm. He further deposed that there were five polythene which were having 10 CDs and he had not seen whether anything was written on the CD itself and the CDs were in normal color of white like and the other CDs without obscene coverage were having white like color and also FIR no. 698/05 Page 3 of 8 deposed that the seal was handed over to him after use but no handing over memo regarding the same was prepared. I do not remember whether the fact of handing over of seal was recorded in my statement or not. He further deposed that the seal was handed over back to the IO after two hours after the case property was deposited in the malkhana and that the CD were not seen with the help of VCD or DVD player and I had not seen the contents of the CD at any point of time till date. He denied the suggestion that nothing was found from the personal search of accused or that CDs have been planted upon the accused or that accused have been falsely implicated on account of the fact that accused did not oblige the police officials to give the CD free of cost.
7. PW3 ASI Attar Singh has testified that on 6.8.05, while petrolling with HCt. Sudhir, near Sai Baba Mandir, Khirki Extn., they received secret information that one person would come from the side of Khirki Bus Stand who is having blue film CD so request was made to 45 passer byes but none came forward. Thereafter, at about 10.10 PM they reached at T Point, B Block, Punchsheel Vihar and there accused present today in the court was apprehended. Accused was found in possession of 10 CDs and case property was sealed with the seal of ASY and seized vide memo Ex.PW2/A. He prepared tehrir Ex.PW2/B and Ct. Sudhir got the case registered. Accused was arrested and his personal search was conducted vide memo E.xPW2/C and D and he also prepared site plan Ex.PW3/A. PW3 also identified the as Ex.P1 (colly.) During cross examination PW3 has deposed that secret information FIR no. 698/05 Page 4 of 8 was received when they both were standing but he cannot tell the age of Mukhbir (objected to) nor can he tell the height as well as the color of clothes of the secret informer and near Sai Baba Mandir at a distance of around 20 meters there are residential houses and they were on bike. They had not gone to the houses to call residents to join us. No written notice was served upon any of the persons to join. The information was received at 10.00 pm and accused was on foot and was going towards B Block and there were five polythene which were having 10 CDs but he had not seen whether anything was written on the CD itself and the CDs were in normal color of white like. The other CDs without obscene coverage were having white like color. Seal was handed over to him after use but no handing over memo regarding the same was prepared. He further does not remember whether the fact of handing over of seal was recorded in his statement or not and that the seal was handed over back to the IO after two hours after the case property was deposited in the malkhana. The CD were not seen with the help of VCD or DVD player and he had not seen the contents of the CD at any point of time till date. Nothing was found from the personal search of accused. He denied the suggestion that he never joined the investigation of the present case or that all the documents are prepared falsely at the PS to implicate the accused or that CDs have been planted upon the accused or that accused have been falsely implicated on account of the fact that accused did not oblige the police officials to give the CD free of cost.
8. After closing of prosecution evidence, statement of accused persons was recorded U/s 313 r/w. 281 of Code of Criminal Procedure Code,1973. In his FIR no. 698/05 Page 5 of 8 statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case.
9. I have heard the Ld. APP for the State and Ld. counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
10. To prove its case under section 292 IPC the prosecution is firstly required to prove that the article recovered from the possession of the accused was obscene in nature. Secondly, it must be established that the accused intended to sell, distribute or publicly exhibit the said article.
11. When an article can be considered to be obscene, has been described in the section 292 IPC itself which postulates that an article can be said to be obscene if it is lascivious or appeals to the prurient interest or if its effect is such tends to deprave and corrupt persons who are likely to read, see or hear such object.
12. In the instant case, there is nothing on record to show that the article which was recovered from the possession of the accused was of the nature as described in this section. As per the prosecution story, certain CDs were recovered from the possession of the accused but those CDs were not played before the court nor has it been the case of the prosecution that any of the police official had FIR no. 698/05 Page 6 of 8 seen the contents of those CDs. Further none of the witness produced on behalf of the prosecution has stated anything about the contents of the CDs, much less anything about the character or nature of the content. In the absence of clear evidence regarding the contents of those CDs it can not be said, by any means, that those CDs were filled with any obscene contents. As per the evidence of the prosecution itself, the obscene material was printed on the polythene in which those CDs were being carried by the accused. As per the evidence of the prosecution, the CDs were in normal colour of white and the same were not having obscene cover.
13. Another ingredient has also not been proved by the prosecution which is that the accused had any intention to sell, distribute or publicly exhibit the contents of those CDs. It is not the case of the prosecution that the accused was in possession of those CDs with intent to sell them or exhibit the same publicly. He was not carrying those CDs with any business purpose. There is no evidence on record to show that the recovered article i.e. the CDs were meant for hire, public exhibition, distribution or circulation. The section 292 IPC does not cover the cases wherein the accused is found to have been in the possession of the obscene articles for the purpose of his own use. In this view of matter, it can not be said that the ingredients of the section 292 IPC are proved. Similar view has been expressed in "Abdul Rasheed v. State of Kerala, (Kerala) 2009(1) R.C.R.(Criminal)135 :
2008 Cri.L.J." wherein it has been held that if an object recovered from the possession of the accused is not meant for hire, public execution or distribution FIR no. 698/05 Page 7 of 8 then the said articles will not come within the ambit of section 292 IPC.
14. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Raj Kishore Mehto is acquitted for the offence punishable U/s. 292 IPC for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 21.05.2011 Metropolitan Magistrate
South District/New Delhi
FIR no. 698/05 Page 8 of 8