Delhi District Court
State vs . Raj Kumar on 23 April, 2012
IN THE COURT OF SHRI SHAILENDER MALIK : ACMM/
NORTH EAST, KARKARDOOMA COURTS, DELHI.
State Vs. Raj Kumar
FIR NO. 306/04
PS Shahdara
U/S: 292 IPC
Date of Institution of case: 30.09.2004
Date on which judgment is reserved: 23.4.2012
Date on which judgment is delivered: 23.4.2012
Unique I.D. No. 02402RO500132004
J U D G M E N T
a) Sl. no. of the case 89/04
b) Date of commission of offence 16.8.2004
c) Name of complainant SI Dinesh Kumar
ci)Name of accused, his parentage
and address Raj Kumar S/o Late Shri Shiv
Dutt Mal R/o: H. No.
1/6625, gali no. 4, East
Rohtash Nagar, Shahdara ,
Delhi.
e) Offence complained of or proved U/S: 292 IPC
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted.
FIR NO. 306/04 Page1 of 9pages
h) Date of such order :23.4.2012
j) Brief reasons for the just decision of the case Accused Raj Kumar S/o late Shri Shiv Dutt Mal was sent up to face trial for the offence under section 292 IPC. Facts of the case precisely are that on 16.08.2004 while SI Dinesh along with HC Gopal and Ct. Parmod Kumar were on patrolling duty. SI Dinesh received secret information that owner of "Raja Videos" in East Rohtash Nagar is giving Video Cassettes on hire for Rs. 15 and take Rs. 100 as security. Secret information stated to have been shared with SHO PS Shahdara and 4/5 public passers by were tried to be joined in police proceedings but none agreed. Then a raiding party was constituted and HC Gopal who was in civil clothes was made decoy witness and to whom SI Dinesh handed over Rs. 100/ which was bearing signatures of SI Dinesh. Thereafter raiding party along with secret informer, went to street no. 4, East Rohtash Nagar. HC Gopal who was decoy witness, was instructed that as soon as he made a deal, he will make indication by keeping his hand on head. SI Dinesh and Ct. Pramod had concealed themselves and HC Gopal Stated to have gone to said shop of "Raja Videos' at about 8.15 pm . HC Gopal made an indication, SI Dinesh with staff went to said shop where HC Gopal stated to have given one CD, upon checking said CD was found to be containing video of "Blue Film". Said CD was taken into police possession. HC Gopal also pointed out towards FIR NO. 306/04 Page2 of 9pages one person whose name was revealed to be Raj Kumar and Rs. 100 currency note, which was handed over by SI Dinesh, recovered from the possession of accused Raj Kumar. Ruqqa was prepared and on the basis of same present case was registered.
2. After completion of investigation , charge sheet was filed. Copy of charge sheet was supplied to accused free of cost. After considering the material available on record, Ld Predecessor of this court vide order dtd. 15.7.05, frame charge for offence under section 292 IPC to which accused pleaded not guilty and claimed trial. 3 In order to substantiate the charge prosecution has examined four witnesses. PW1 is Ct Parmod, who has testified that on 16.8.04 when he along with SI Dinesh and HC Gopal were on patrolling, secret information was received at about 8.00 pm . PW1 thereafter went on to depose all those facts as stated in "Tehrir. PW1 says after receipt information, IO requested 3/4 passersby to join investigation, but none agreed. Thereafter SI Dinesh handed over Rs 100/ currency note after signing on it, to HC Gopal and give instructions to him give signal after completing the deal. PW1 says that he and SI Dinesh took their position near "gali" and there after at about 8.15 pm HC Gopal made signal and then PW1 and SI Dinesh reached at that shop where HC Gopal handed over one CD to SI Dinesh. PW1 says that said CD was played by the IO with the help of CD player at the shop and it was found obscene. PW1 then also testifies about recovery of currency note of Rs. 100/ from left pocket of shirt of accused. CD and currency note was taken into FIR NO. 306/04 Page3 of 9pages possession vide seizure memo Ex. PW1/A and rukka was prepared and after registration of FIR, accused was arrested vide memo Ex. PW1/B Case property i.e. CD proved as ex. 1 and currency note of Rs. 100/ as Ex. P2.
4 PW2 is ASI Gopal who says that on 16.8.04 when he was Head Constable, on that day, he along with SI Dinesh and Ct. Parmod were on patrolling. PW2 further says about secret information and hereafter handing over of Rs. 100/ after signing it by SI Dinesh and giving of instructions to go as decoy witness and to give signal when he enters into deal. PW2 also testifies that he thereafter went to the shop of "Raja Video" and found accused Raj Kumar present there. PW2 says that he asked accused Raj Kumar to give him obscene cassette on rent and thereafter accused Raj Kumar receives Rs. 100 note from PW2, which he kept in front pocket of his shirt. PW2 says accused Raj Kumar gave him CD and thereafter he gave signal, upon which IO along with Ct. Parmod reached there and PW2 stated to have handed over CD to IO and told IO that accused had given said CD to him on rent. PW2 says that thereafter IO conducted personal search of accused upon which same currency note of Rs. 100 was recovered from accused. PW2 says IO checked the CD, it was a "blue film'. PW2 proved seizure memo of CD and Rs. 100 currency note and proved arrest of accused after registration of FIR. 5 PW3 SI who has also testified all those facts as deposed by Pw1 and PW2. However, PW3 has not testified that he played the CD or that it was CD of a "blue film'. PW3 proved rukka Ex. PW3/A on FIR NO. 306/04 Page4 of 9pages the basis of which, present case was registered PW4 SI Shri Prakash, who proved formal registration of FIR, upon receipt of rukka sent by SI Dinesh.
6 Upon completion of prosecution evidence, whole of evidence was put to accused in statement of accused recorded as per section 281/313 Cr.P.C, wherein while denying the evidence accused has taken the plea that he is innocent and has been falsely implicated, because HC Gopal had taken CD from his shop which was when returned by HC Gopal his servant demanded money from him, because of which HC Gopal infuriated and he was falsely implicated in this case.
7 No evidence was led in defence.
8 I have heard Ld. APP for the State and Ld. Counsel for the accused.
9 Having heard the submissions at Bar & having appreciated evidence on record, it is first to mention that accused has been charged for offence of section 292 IPC with the allegations that accused was letting CDs containing obscene picture or video. The word `absence' used in Section 292 of Indian Penal Code has not been defined anywhere in the code. Section 292 IPC reads as:
"(1) For the purposes of subsection (2), 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 (wherever 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 persons who are FIR NO. 306/04 Page5 of 9pages 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 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.
Thus a book or any material shall be deemed obscene if
(a) it is lascivious or appeals to the prurient interest or FIR NO. 306/04 Page6 of 9pages
(b) if its effects or where it comprises of 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 persons who are likely, having regard to all relevant circumstances, to read the matter contained in it.
The words "if taken as a whole" are of significance and show a departure from the earlier approach. Meaning and scope of word "obscene" as used in Section 292 of the Penal Code came up for consideration before Supreme Court in Ranjeet D. Udeshi V State of Maharashtra AIR 1965 SC 881 It was observed that `main test of obscenity is whether the tendency of matter charged as obscene is to deprave and corrupt those whose mind are open to such immoral influences and into whose hands a publication of this sort may fall. In this connection, the interest of our contemporary society and particularly influence of matter on it must not be overlooked.
10. So it is required to be established in present case to prove charge against accused that CD or cassettes which he was selling or letting on hire, was containing a material which was obscene. It has come in evidence that accused gave to decoy witness HC Gopal a CD containing Blue film. Now if we take whole of evidence to be on face of it, to prove that CD given to HC Gopal by accused, contained a blue film which was such a matter, which was lascivious or appeals to the prurient interest or can deprave and corrupt those whose minds are open to such immoral influence and into whose hands a matter of this sort may fall. Now by just saying CD contained blue film, was not sufficient, nor does this court intend to say that CD must be played in court as evidence. Only thing I find not proved is that witness has not stated that when he saw that contents of CD he found it so lascivious that matter could have appeals to the prurient FIR NO. 306/04 Page7 of 9pages interest or could deprave any one whose mind is open to any such immoral influence. If we assess the evidence, Pw1 says that when HC Gopal gave signal upon which SI Dinesh & he reached at that shop, then HC Gopal handed over a CD to SI Dinesh, which played with the help of CD player, at the shop itself. Similarly Pw2 ASI Gopal also says that IO (SI Dinesh) checked the CD, it was blue film. Though both this witness have not elaborated as to nature of contents which was required in view of above requirement of law discussed above but above all, most surprisingly IO SI Dinesh has not stated even a single word in his evidence that he got that CD played & found it to be containing Blue film. So Pw 3 SI Dinesh contradicts Pw 1 & 2 on very material aspect of case. PW 1 & 2 says CD was played in CD player by SI Dinesh, but SI Dinesh himself does not utter even a single word about. This contradiction assumes more importance when we see said CD when produced in court, at the time of recording evidence, it was broken. So even court could not assess whether the contents of said CD were obscene or not. Non production of case property in proper & original shape or condition, may not be fatal for prosecution in certain situation, but in facts of present case, production of broken CD which allegedly contained, obscene matter, clearly show that prosecution has failed to establish one of the important ingredients of offence u/s 292 IPC. 11 Another aspect which needs to be mentioned here is that, present case was registered on the rukka sent by SI Dinesh, in that sense SI Dinesh was complainant, but, SI Dinesh went on to FIR NO. 306/04 Page8 of 9pages investigate the matter as well. Complainant himself investigator is against the canons of fair investigation & trial. Beside this alleged recovery is not presence of any independent witness. Thus I find prosecution case is surrounded with many infirmities, as consequence thereof accused is entitled to benefit of doubt. Therefore accused stands acquitted. His bail bond stands cancelled and discharged.
File be consigned to record room.
ANNOUNCED IN OPEN COURT ON 23.4.2012 (SHAILENDER MALIK) ACMM-II, North East, KARKARDOOMA COURTS:
DELHI FIR NO. 306/04 Page9 of 9pages