Himachal Pradesh High Court
Vijay Kumar vs State Of H.P on 13 August, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 35 of 2009.
Reserved on: 7th August, 2019.
.
Date of Decision: 13th August, 2019.
Vijay Kumar .....Appellant.
Versus
State of H.P. ....Respondent.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?
For the Appellant: Mr. Satyen Vaidya, Senior Advocate with Mr. Vivek Sharma, Advocate.
For the Respondent: Mr. Hemant Vaid, Additional A.G. with Mr. Y.S. Thakur, Dy. Adv. General and Mr. Vikrant Chandel, Dy. A. G Sureshwar Thakur, Judge The learned Additional Sessions Judge, Fast Track Court, Shimla, H.P., though, acquitted the accused for the charges framed under Section 292, and, under Section 376 of the IPC, and, vis-a-vis, the charge framed, under, Section 67 of the Information Technology Act, 2000. However, he convicted the accused/appellant herein, for, commission, of, an offence punishable, under, Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986, and, also ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 2 sentenced him to undergo rigorous imprisonment, for, a period of one year, and, to pay a fine of Rs.1,000/-, and, in default of payment of fine amount, he was further .
sentenced, to, undergo rigorous imprisonment, for, a period of one month. Moreover, the accused/convict was also directed, to, pay a sum of Rs.1,00,000/-, as, compensation, to, the prosecutrix. The aggrieved convict/accused hence challenges the conviction pronounced, upon, him, vis-a-vis, the afore charge, and, also challenges, the, afore therewith consequential, order, of, sentence(s) imposed, upon, him.
2. Briefly, the facts of the case are that a news time was published in the Dainik Bhaskar Newspaper dated 4th May, 2005 tot he effect that an obscene CD is in circulation in Shimla Town. In the said CD, an aged man and a female have been shown in compromising position. After the publication of this news, Inspector General of Police (CID), Himachal Pradesh, Shimla, directed Inspector Kushal Kumar of his department to look into the matter. Pursuant to the directions issued by the superiors, Inspector Kushal Kumar of the State CID started inquiring into the incident.
On 4.5.2005 itself, when Inspector Kushal Kumar was present in the Police Control Room, on The Mall, Shimla, an unknown person telephoned him and intimated that one of ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 3 such CDs is lying in an envelop near the Taka Bench. He (Kushal Kumar) will come to now of the true facts after viewing/checking that CD. The caller then disconnected the .
phone. Thereafter, Inspector Kushal Kumar Proceeded to the place i.e. Taka Bench, where the porn CD was allegedly lying. An envelop containing the CD was recovered by him.
That CD was playing/viewed by him on the computer of his office in the presence of his colleague Inspector Bhupinder Negi. The video of the CD lasted approximately 14-15 minutes. In it, a male and a female were shown having the sex. The copies of this CD were in circulation in Shimla Town. Inspector Kushal Kumar according submitted his report Ex. PA to the Inspector General (CID), Shimla. The I.G. in turn forwarded the report to the District Police for doing the needful. FIR No.140/05 was registered on the basis of this report in Police Station Sadar, Shimla. The Investigation of the case entrusted to Sh. Varinder Kanwar, the then Additional Superintendent of Police, Shimla.
Inspector Kushal Kumar, produced the obscene CD before Sh. Varinder Kanwar, who checked/played it on his office computer, and, took it into possession and sealed the same.
The male character in the CD was identified as Sh. Vijay Kumar. He was interrogated. On interrogation, the accused ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 4 divulged before the police that the obscene CD was made by him for his personal use in his office with the help of a web camera and computer. In this CD, he has been shown .
enjoying the sex with the prosecutrix. The accused also told the police that in the month of August, 2004, his computer had developed some defect. He had handed over the same to Sh. Narain Thakur of Middle Bazar, Shimla, for repair. The hard disc of the CPU was changed by Sh. Narain Thakur on the pretext that it has crashed. The crashed/faulty hard disc is in possession of Sh. Narain Thakur only. Accordingly, the shops of Shri Narain Thakur and the accused were sealed by the police during the night of 6.5.2005. On the next day, the seals of the shop of Shri Narain Thakur were broken and opened in his presence and in the presence of the witnesses. Three hard discs were recovered from the shop of Sh. Narain Thakur, which were taken into custody and sealed. The new hard disc which was fitted in the computer of the accused by Sh. Narain Thakur and the bill/cash memo issued by the latter were taken into possession. That hard disc too was sealed. The pass port, driving licence and the details of the telephone calls made by the accused were taken into custody. On 10th May, 2005, the dwelling house of the accused was search in his presence and in the ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 5 presence of the witnesses. 87 VCDs, 25 floppies, a CPU and web camera were recovered from the house of the accused.
The same were taken into possession and sealed. A settee, .
bed sheet spread on it, two glasses and CPU etc. were recovered from the office of the accused on The Mall Road.
The same too were taken into custody and sealed. The bed sheet was sent for chemical test to the Forensic Science Laboratory, Junga, Shimla. Human semen was found on it.
The CDs and floppies which were recovered from the house of the accused were viewed in the presence of Sh. O.P., Kant, the then Sub Divisional Magistrate (Rural), Shimla.
Out of them CDs No.78 and 79 were found containing the lewd material. The accused identified the females with whom he was shown having the coitus in the CDs. The prosecutrix had left Shimla after registration of the FIR. The police successfully traced her on 12.5.2005 from Garkhal in District Solan. She joined the investigation. She narrated to the police that previously she was working as Home Guard.
She left the said service and asked her cousin Krishna to find some suitable job for her. Krishna in turn told her that the accused, who runs a shop on The Mall Road, Shimla, needs a sales girl. Accordingly, in the year 1999, she approached the accused. The latter interviewed and ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 6 employed her. She started working on the shop of the accused. After 2 ½/3 months of her employment, when she was working in the office, the accused suddenly came and .
kissed her on her cheek. She objected to it. On this, the accused remarked that he is loving/kissing her like his children. She believed the said representation made by the accused. After a few days, when she was alone in the office, the accused took her in his arms. She inquired from the accused as to why he is doing so. The accused remarked that she is like his daughter and he will not do any such act in future. Thereafter, many days passed. One day, the accused too her to his house on the pretext that some articles are to be brought from there. When she reached the house of the accused, he made her to sit in a room on the sofa in front of the computer. The accused switched on the computer. An obscene picture started coming on the computer screen and the accused started coming near to her. She was amazed to see all this. She pushed the accused and ran away from his house. Then, she did not come to the shop of the accused for about two months. The accused used to ring her up time and again and asked her to join the duties. He even promised not to behave indecently in future. On the said assurance given byt the ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 7 accuse,d she again joined his services. After 6-8 days of her rejoining the service, one day during the lunch break, the accused brought lemon juice in two glasses. He gave one of .
the glasses to her so that she takes the juice. One of the glass was kept by the accused with him for drinking. When she sipped the juice, she told the accused that the juice does not taste proper. On this, the accused told her that he will bring another glass of juice. He then went away and brought the second glass of juice for her. After drinking the juice, she felt giddy. She told the accused that she is not feeling well. On this, the accused caught hold of her, made her to lie on the settee which was lying there and started indulging in obscene activities. She became almost unconscious and was not able to push away the accused inspite of her desire to do so. The accused then removed her clothes against her will and had the sexual intercourse with her. She regained the consciousness around 6 p.m. She started weeping and told the accused that he has not done the right act. She even told the accused that she will lodge a complaint against him. On this, the accused showed her a film/clipping on the computer of his office, where she was shown having the sex with him. She was uptset after viewing that film and remarked that she will report the ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 8 matter to the police. The accused threatened her that in case she reports the matter to the police, he will show the film to the public at large because of which she will be .
unable to show her face to anyone. She became panic. Due to the fear of the accused and to avoid defamation,s he did not disclose before anyone about the rape, wrongful acts of the accused and the preparation of the video/CD by him till date. The accused had also proclaimed that she will obey his commands and will come to him as and when he calls her. After that the accused used to call her as per his will to his office and the residence as well as sexually abused her. She further alleged that the accused kept her blackmailing and sexually assaulting by threatening that he will show the lewd CD featuring her to hers. Variuous other girls used to visit the office of the accused in her absence.
Needful be done. Thereafter the police completed all the investigating formalities.
3. On conclusion of the investigations, into the offences, allegedly committed by the accused, a report, under Section 173 of the Code of Criminal Procedure, was prepared, and, filed before the learned trial Court.
::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 94. The accused/appellant herein stood charged, by the learned trial Court, for, his committing offences, punishable under Section 292, and, under Section 376 of .
the IPC, and, under Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986, and, under Section 67 of the Information Technology Act, 2000.
In proof of the prosecution case, the prosecution examined 25 witnesses. On conclusion of recording, of, the prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case.
5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal, in, favour of the accused/appellant herein, vis-a-vis, the charges framed under Section, 292, and, under Section 376 of the IPC, and, under Section 67 of the Information Technology Act, 200, whereas, it returned findings of conviction, against the accused/appellant herein, vis-a-vis, an offence punishable, under, Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986.
::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 106. The appellant herein/convict, stands aggrieved, by the afore findings of conviction, recorded, by the learned trial Court. The Senior Counsel appearing for the .
convict/appellant, has, concertedly and vigorously contended, qua the afore findings of conviction, recorded by the learned trial Court, standing not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal.
7. On the other hand, the learned Additional Advocate General appearing for the respondent/State, has, with considerable force, and, vigour, contended qua the findings of conviction, recorded, by the learned trial Court, rather standing based, on a mature, and, balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication.
8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 119. Apparently, neither the State of Himachal Pradesh, nor the aggrieved prosecutrix/victim, have, through instituting appeals, before this Court, hence cast .
any onslaught, vis-a-vis, the acquittal pronounced, by the learned trial Court, upon, the accused, vis-a-vis, the charges framed, under, Section 376 of the IPC, and, under Section 67 of the Information Technology Act, 2000. Consequently, the order of acquittal pronounced, upon, the accused/convict, vis-a-vis, the afore charges obviously acquire(s) conclusivity, and, binding effect. In aftermath, this Court is not enjoined, to, discern, from, the prosecution evidence, qua hence, its making any purported displays, vis-a-vis, the accused committing the afore charged offence, rather this Court, is, only enjoined, to, adjudicate, whether, the learned trial Court, meted an appropriate interpretation, vis-a-vis, the apt provisions, of, Section 4, of, the Indecent Representation of Women (Prohibition) Act, 1986 (hereinafter referred to as the Act), provisions whereof stand extracted hereinafter:-
"4. Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women.- No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 12 pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form:"
.
10. Before proceeding to validate or invalidate, the, interpretation, meted, by the learned trial Court, qua the hereinabove extracted apt provisions of the Act, it is deemed fit to allude, to, the deposition, rendered by PW-18,
(a) wherein, he has made, an, echoing qua his preparing/generating obscene CDs, from, the hard disc, of, the CPU of the accused. The making of the afore echoing by PW-18, in his deposition, does, assume significance, as, the CDs carrying obscene, and, prurient contents, remain undisplayed, by cogent prosecution evidence, to be hence televised or screened, for, hence facilitating apt public viewing(s) thereof. Since, the afore, evidence is amiss, and, when it hence, can be concomitantly concluded, qua the CDs generated or prepared by PW-18, from, the hard disc of the CPU, of, the accused, and, theirs containing prurient, and, obscene contents, rather being meant, only, for the private viewing, of, the accused/'convict. However, the learned trial Court, upon, meteing, a, strict interpretation, to, the apt hereinabove extracted provisions, of, Section 4 of the Act, rather concluded, that, thereupon, ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 13 also the accused "producing or causing, to, produce, sell, letting to hire, distributing, circulating, or sending by post, pamphlet, paper, sliding, film, writing, drawing, painting .
etc., hence, the afore CDs". The afore strict interpretation, meted, to the apt provisions of the Act, is, for the reasons assigned hereinafter hence engendered, from, a stark fallacy (a) as, the apt "words" borne in the apt statutory provisions, are borne in the statutory phrase "No person shall produce or cause to be produced", naturally, the afore, carry, the, lead or are the apt beckon, for, therefrom hence rendering, a, befitting interpretation, to, the subsequently occurring "words" therein. (b) Conspicuously, the, mere existence, of, CDs inside the CPU of the accused/convict, and, when the requisite afore evidence, vis-a-vis, it being disseminated for public viewing, is, grossly amiss, hence, thereupon, this Court forms, a, conclusion qua it being, meant only, for, the viewing of the accused, hence, also bearing in the mind the definition meted, to, "produce" by the "Lexicon",, definition whereof stands extracted hereinafter:-
"Produce:- As a noun the words has no definite, exact, and, particular meaning; it may be used in a larger or more restricted sense. As a verb: To bring forward to show or exhibit, to bring into view or notice; as, to produce books or writings at a trial in obedience to a ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 14 subpoena to bring forward; to offer to view or notice; to show; to manufacture, make."
(I) definition whereof enjoins exhibition or public dissemination, for hence production, being caused or the .
relevant incriminatory material, being construed to be produced, (ii) thereupon, the afore stricto sensu meteing, of, an interpretation,qua the afore lead parlance, occurring in the apt phrase, is grossly inapt. Moreover, with the afore evidence displaying, qua the relevant material, being not , afore r to publicly disseminated or publicly exhibited, thereupon, in consonance, with, the afore parlance, as, meted, to, the coinage, "no person shall produce or caused to be produced", (iii) this Court concludes that the conviction, of, the accused/convict/appellant herein, and, in consonance therewith imposition of sentence, vis-a-vis, the charge framed under Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 rather being not sustainable.
11. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has not appraised the entire evidence, on record, in a wholesome and harmonious manner, apart therefrom, the analysis of the material, on record, by the learned trial court, hence, suffers, from, a gross perversity or absurdity ::: Downloaded on - 29/09/2019 02:03:29 :::HCHP 15 of mis-appreciation, and, non appreciation, of, germane evidence, on record.
12. Consequently, the instant appeal is allowed, and, .
the impugned judgment, convicting, and, sentencing the accused/appellant herein, for his committing an offence punishable, under, Section 6 of the Indecent Representation of Women (Prohibition) Act, is, set aside. In sequel, he is acquitted for the afore offence. The fine amount, if any, deposited by him, be released to him, forthwith. All pending applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) 13 th August, 2019. Judge.
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