Himachal Pradesh High Court
Subhash Chand vs State Of H.P on 29 December, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. R. No. 182 of 2008.
Reserved on 15.12.2016.
Decided on: 29.12.2016.
.
Subhash Chand ....Petitioner.
Versus
State of H.P. ... Respondent.
................................................................................................
Coram
of
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the petitioner. : Mr. B.L. Soni, Advocate with
rt Mr. Aman Parth , Advocate.
For the respondent. : Mr. Vikram Thakur, Deputy Advocate
General.
Ajay Mohan Goel, J.
By way of present revision petition, petitioner has challenged the judgment passed by the Court of learned Sessions Judge, Hamirpur in Cr. Appeal No. 27 of 2008 dated 10.9.2008 vide which, learned appellate court while dismissing the appeal filed by the present petitioner, upheld the judgment passed by the Court of learned Chief Judicial Magistrate, Hamirpur in Cr. Case No. 22-1 of 2007/40-II of 2007 dated 5.4.2008 whereby learned trial court convicted the accused for commission of offences punishable under Section 68-A of Copyright Act and Section 292 of IPC and sentenced him to undergo simple imprisonment for a period of 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 2one year and to pay a fine of Rs. 2,000/- for commission of offence punishable under Section 68-A of Copyright Act and to undergo simple imprisonment for a period of one year and to pay fine of Rs. 2,000/- for .
commission of offence punishable under Section 292 IPC. Both the substantive sentences of imprisonment to run concurrently.
2. The case of the prosecution was that PW6 Sub Inspector Guler Chand, HC Manohar Lal and Constables Sanjeev Kumar and Raj of Kumar had gone to Nalti for the purpose of verification of entry in the Daily Diary, Ext. PW6/A , with regard to the factum of accused keeping for sale pirated and pornographic VCDs. As per prosecution, PW2 Sub hash rt Verma and Ramesh Chand were associated by the police party as witnesses and search of the shop of accused was conducted in the course of which 19 VCDs were recovered out of which 9 were found to be MP-3 and 10 were found to be pornographic. Further as per prosecution these VCDs were sealed in a packet with seal 'H'. The CDs were seized vide seizure memo Ext. PW1/A on which signatures of witnesses Sanjeev Kumar, Suhhash and Ramesh Chand were obtained. Ruqua Ext. PW6/E was prepared and sent to the Police Station, on the basis of which, FIR Ext. PW5/B was registered. Statements of witnesses were recorded as per their versions and site plan was also prepared.
3. After completion of the investigation challan was prepared and filed in the Court and as a prima facie case was found against the accused he was charged for commission of offences punishable under ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 3 Section 68-A of Copyright Act and Section 292 of IPC, to which accused pleaded not guilty and claimed trial.
4. In order to prove its case prosecution, in all, examined 07 .
witnesses.
5. PW-1, Ramesh Chand, who as per the prosecution was associated by the police party with the search and seizure of VCDs from the accused, did not support the case of the prosecution.
of
6. PW2, Subhash Verma, the other independent witness who was associated by the prosecution with the search and seizure of the VCDs from the accused also did not support the case of the prosecution.
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7. PW3, Sanjeev Kumar, who was part of the police party stated that on 15.11.2006 Subhash Chand Gift Centre was checked at Nalti by Sub Inspector Guler Chand and from the counter of the said shop 19 CDs were recovered. He stated that out of these CDs, 09 were pirated and 10 were pornographic which were checked at the spot. He further stated that these CDs were taken into possession vide memo Ext. PW1/A. In his cross-
examination, this witness admitted it to be correct that at Nalti there were 25-30 shops. He also stated that police party did not associate any local person with the investigation. He further stated that Ramesh had joined the investigation at the spot only and that Ramesh was not taken along by the police party. He also stated that the entire proceedings at Nalti consumed about 3 to 4 hours. He admitted that before checking the counter the police party had not given its search to anyone.
::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 48. The next relevant witness is Sub Inspector Guler Chand who entered the witness box as PW6. This witness deposed that he was posted as Sub Inspector at Police Station, Hamirpur since July, 2006. He also .
deposed that on 15.11.2006 at around 2:45 p.m. some unknown person passed on information that Subhash Chand a shopkeeper at Nalti Bazar had kept pirated CDs in his shop which he used to sell and in case the shop was raided then the said CDs could be recovered. He further stated that on this of he entered the Rapat i.e. Rapat No 29, Ext. PW6/A, and went to the spot in a vehicle alongwith HC Manohar Lal, Constable Sanjeev Kumar and on the way he also took witnesses Ramesh and Subhas h Verma alongwith him. He rt further deposed that after reaching the shop of accused, search was carried out which revealed 19 CDs inside the counter which were not bearing any mark or identification sign of any Company and were in fact pirated. He further deposed that all the CDS were checked in a CD-Player which was found in the shop of accused and out of recovered CDs, 10 VCDs were found to be pornographic. He also deposed that remaining 09 pirated VCDs contained songs sung by various artists. He further deposed that Fard was prepared at the spot which was signed by witnesses Ramesh, Subhash and Sanjeev Kum ar. He also deposed that he recorded the statements of the witnesses, arrested the accused and sent Ruqua, Ext. PW6/E, through HC Manohar Lal. In his cross-examination, this witness deposed that he had associated witness Subhash from his shop and witness Ramesh from outside the Police Station. He also deposed that he had taken both these ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 5 witnesses alongwith him. He stated that he had taken the entire raiding party from there (Police Station) only. He also deposed that in Nalti there were about 25-30 shops and that he had not associated any local person of .
the area or Panch, Pradhan o r shopkeeper etc. He also stated in his cross examination that before carrying out the raid he had not given his search to anyone. He also stated in his cross examination that the shop of witness Subhash was adjacent to the Police Station and that witness Ramesh Chand of was a resident of village Anu. He further deposed that proceedings took place between 3:15 p.m to 6:00 p.m and Ruqua was sent at around 4:15 p.m. rt
9. Learned trial court on the basis of evidence produced before it by the prosecution held that the prosecution was able to prove successfully its case against the accused beyond all reasonable doubt for commission of offences punishable under Section 68-A of Copyright Act and Section 292 of IPC. Accordingly learned trial court convicted the accused for commission of the said offences. While returning the finding of conviction learned trial court held that though PW1 and PW2 turned hostile, however, statement of PW3, Constable Sanjeev Kumar, and PW6, Sub Inspector Guler Chand , proved the case of the prosecution as there was nothing to doubt the testimony of these two witnesses. Learned trial court also held that the factum of the Investigating Officer not associating any independent local witness also had no bearing as the requirement of having independent witness to corroborate evidence of Police Officers had to be viewed from a ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 6 realistic angle. Learned trial court further held that even if search was made in violation of the provisions of Section 100 (4) of Cr.P.C. then also conviction can be recorded if the testimonies are found to be satisfactory.
.
Learned trial court further he ld that the discrepancies in the statements of prosecution witnesses were otherwise bound to come with the passage of time and they were not sufficient to reject the prosecution case. On these bases, it was held by learned trial court that prosecution had proved that the of accused was found in possession of 19 VCDs, out of which 10 were pornographic and 09 were pirated. It was also held by learned trial court that as per the provisions of Section 52-A of Copyright Act it was essential rt that the name and address of the person who had made the video film and declaration that he had obtained necessary licence or consent from the owner of the copyright for making such video film, the name and address of the copyright owner were mentioned on VCD and if these requirements are not mentioned then it amount s to offence punishable under Section 68-A of Copyright Act. Learned trial court also held that it was not necessary for the prosecution to track and trace the owner of the copyright to adduce evidence for infringement of copyright. It was also held by learned trial court that prosecution witnesses had consistently held that VCDs were found to be pornographic in nature and since the VCDs were kept in a shop therefore there was a reasonable inference that the same was kept for the purpose of sale or hire. On these bases, learned trial court returned the finding of conviction against the accused.
::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 710. In appeal the finding so returned by learned trial court were upheld by learned appellate court. While upholding the judgment of conviction, learned appellate court held that neither non- associa tion of local .
witnesses was fatal to the case of the prosecution nor there could be any such presumption that CDs were in fact planted by the Investigating Officer. Learned appellate court also held that the Investigating Officer had no animus against the accused and therefore statement of Investigating of Officer had to be believed as the Investigating Officer had no interest to state falsely against the accused. Learned appellate court also held that even PW3 had duly supported the version of the Investigating Officer. Learned rt appellate court also held that it was evident from the police record that CDs were duly played on CD-player and were found to be of above description and furthe r the conclusions arrived at by learned trial court that the pirated CDs were without any name and address and manufacture etc. and other CDs were pornographic was the correct conclusion. Accordingly learned appellate court dismissed the appeal so filed by the accused.
11. Feeling aggrieved by the said judgments passed by learned courts below, the accused has preferred the present revision petition.
12. Mr. B.L. Soni learned counsel for the petitioner has argued that the judgments passed by both the learned courts below against the accused were not sustainable in the eyes of law as the same were perverse in view of the fact that the findings of conviction returned by both the learned courts below against the accused were not borne out from the ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 8 records of the case. Mr. Soni argued that both the learned courts below erred in not appreciating that the prosecution had failed to prove its case against the accused beyond all reasonable doub t. Mr. Soni argued that both .
the learned courts below erred in not appreciating that the independent witnesses had not supported the case of the prosecution because no CDs were recovered from the accused in the mode and manner as the prosecution wants this Court to believe. He further argued that beside this of there were major contradictions and inconsistencies in the statements of PW3 and PW6 which belied and falsified the entire case of the prosecution, however, both learned courts below gravely erred in not appreciating the rt testimonies of PW3 and PW6 in their correct perspective which had led to grave injustice to the petitioner. It was further argued by Mr. Soni that neither the documentary evidence was correctly appreciated by both learned courts below nor it was appreciated by both learned courts below that the petitioner was falsely implicated in the case by the prosecution. On these bases, Mr. Soni prayed that the judgments of conviction passed by both learned courts below against the petitioner were liable to be set aside and the petitioner deserved to be acquitted. Mr. Soni also drew attention of this Court to various documents purportedly prepared by the Investigating Officer at the spot and he argued that the factum of FIR number being mentioned in these documents in the same ink, handwriting and flow even before the FIR was lodged demonstrated that none of these documents was actually prepared at the spot and all these documents were concocted ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 9 subsequently in the Police Station. Mr. Soni also argued that another perversity with the judgments passed by both learned courts below was that both learned courts below erred in not appreciating that the CDs which .
were allegedly recovered from the possession of the petitioner were never exhibited in accordance with Section 65B of the Indian Evidence Act.
13. Mr. Vikram Thakur learned Deputy Advocate General, on the other hand argued that there was no merit in the present revision petit ion as of there was no perversity with the findings of conviction returned against the accused by both the learned courts below. Mr. Thakur argued that both PW3 and PW6 had proved and corroborated the case of the prosecution on rt all material aspects and both the learned courts below after taking into consideration the entire evidence had rightly found the accused guilt y of the offence with which he was charged. Accordingly, it was prayed by Mr. Thakur that as there was no merit in the revision petition, the same be dismissed.
14. I have heard the learned counsel for the petitioner as well as learned Deputy Advocate General and also gone through the records of the case as well as the judgments passed by both the learned Courts below.
15. Before proceeding in the matter, it is relevant to take note of what is the scope of revisional jurisdiction of this Court. It is settled law that the scope of revisional jurisdiction of this Court does not extend to re-
appreciation of evidence. It has been held by the Hon'ble Supreme Court that the High Court in exercise of its revisional power can interfere only if ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 10 the findings of the Court whose decision is sought to be revised is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the .
material facts are wholly ignored or where judicial discretion is exercised arbitrarily or capriciously. It has been held by Hon'ble Supreme Court in Sanjaysinh Ramrao Chavan Versus Dattatray Gulabrao Phalke and Others, (2015) 3 Supreme Court Cases 123, that unmerited and undeserved of prosecution is an infringement of guarantee under Article 21 of the Constitution of India. In this case, Hon'ble Supreme Court has further held that the purpose of revision jurisdiction is to preserve the power in the rt Court to do justice in cases of criminal jurisprudence.
16. Coming to the facts of this case, the case of the prosecution is that on 15.11.2006 a secret information was received from some unknown person at Police Station, Hamirpur at about 2:45 p.m. to the effect that in Nalti Bazar if raid is conducted in the shop of accused, pirated VCDs could be recovered which were kept by the accused for sale to consumers. This has come in the testimony of the Investigating Officer PW6 Guler Chand who also stated that after the receipt of the said information he entered Rapat No. 29 Ext. PW6/A and thereafter pro ceeded to the spot in a vehicle alongwith HC Manohar Lal and Constable Sanjeev Kumar and also associated witnesses Ramesh and Subhash Verma from near the Police Station itself. This witness has further deposed that after raid was conducted in the shop of the accused purportedly in the presence of ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 11 independent witnesses namely, Ramesh Chand and Subhash Verma, and 19 pirated VCDs were recovered which included 10 VCDs containing pornographic material, a ruqua was sent to Police Station i.e. Ext. PW6/E .
through HC Manohar Lal. It has come in his testimony that ruqua was sent through HC Manohar Lal for the registration of the case. It has also come in the testimony of this witness that before ruqua was sent , the CDS so recovered in the raid from the shop of accus ed were sealed in a parcel and of recovery memo was prepared at the spot which was signed by witnesses Ramesh, Subhash Verma and Sanjeev Kumar.
17. Memo of recovery is on record as Ext. PW1/A, FIR is Ext.
rt PW5/B and ruqua is on record as Ext. PW6/E.
18. A perusal of ruqua demonstrates that the same was sent by Investigating Officer on 15.11.2006 at 4:15 p.m. This document further demonstrates that on the basis of this ruqua, FIR No. 418/06 was registered against the accused at Police Station and a perusal o f FIR, Ext. PW5/B, demonstrates that the time of registration of the FIR is 4:45 p.m. This means that before 4:45 p.m. no one was aware about the FIR number.
However, surprisingly recovery memo Ext. PW1/A which as per the Investigating Officer himself was prepared much before the ruqua was sent to the Police Station for the registration of the case, contains FIR No. 418/06 alongwith all the Sections under which the said FIR was lodged and that too in the same ink, same pen, same flow and same handwriting with which the remaining contents of this exhibit ha ve been entered upon by the ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 12 Investigating Officer. Similarly, FIR number is also recorded in the statements which were recorded under Section 161 of Cr. P.C. of witnesses Subhash Verma and witness Ramesh Chand. Statement of PW6 i.e. the .
Investigating Officer also reveals that these statements were recorded by the Investigating Officer before the ruqua was sent by him to the Police Station for the registration of the case.
19. The above facts in my co nsidered view shroud the case of the of prosecution with cloud of suspicion. During the course of arguments, Mr. Thakur, learned Deputy Advocate General could not explain as to how FIR number were already mentioned in the recovery memo and that too in the rt same pen, handwriting and flow in which the remaining contents of this documents were entered when admittedly this document was prepared much before the registration of the FIR. Now in this background when we peruse the statements of PW1 and PW2 who as per the prosecution were independent witnesses, there appears to be merit in the statement of these two witnesses who have deposed in the Court that they were never taken by the police to Nalti and no recovery of VCDs took place from the shop of the accused in their presence at Nalti and in fact their signatures were obtained on the documents in the Police Station.
20. Not only this, a careful perusal of the statement of PW3 and PW6 also creates a serious doubt over the veracity of the prosecution case.
This is for the reason that whereas PW3 has stated that witness Ramesh Chand was associated with the proceedings by the Investigating Officer at ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 13 the spot itself, however, PW6, the Investigating Officer has stated that both the independent witnesses were taken alongwith by him (Investigating Officer) from around the Police Station itself. This contradiction in the .
testimony of PW3 and PW6 cannot be said to be a minor inconsistency. In my considered view it is a major contradiction taking into consideration other facts which have been enumerated by me above, which if taken together create serious doubt as to whether any pirated and pornographic of VCDs were actually recovered from the premises of the accused which were allegedly kept by him for sale to the general public, as the prosecution wants this Court to believe.
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21. A perusal of the judgments passed by both learned courts below demonstrates that they have not at all dealt with these issues and the documents on record having not been appreciated in their correct perspective leading to perversity in their respective judgments. The appreciation of the effect of non-joining of independent witnesses at the spot despite the fact that even as per PW3 and PW6 there were 25-30 shops at Nalti by both learned courts below can also not be termed to be sustainable. Though there is no doubt that it is not as if in each and every case it is only if independent witness corroborate the testimony of police witnesses then the testimony of police witnesses can be believed, however, in this case the prosecution has not been able to explain as to why independent local witnesses of the area concerned were not associated with the alleged raid conducted in the shop/premises of the accused and why ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 14 PW1 and PW2 were associated by the Investigating Officer from the Police Station itself. However, this even if PW6 had taken PW1 and PW2 alongwith him as independent witnesses , there was no bar for him to have .
had associated any other local independent witness to give credence to the case of the prosecution. However, it is categorically stated by both PW3 and PW6 tha t no independent witness of the area was associated by them in the search and seizure. In addition, it has also come in the statement of of both these witnesses that no personal search of theirs was given by them before they conducted the case, before they searched the premises of the accused. All these factors when taken together create a serious doubt about rt the truthfulness of the case of the prosecution and in my considered view, on the basis of material produced on record by the prosecution it could not be said that the prosecution was able to prove its case beyond all reasonable doubt and when the case of the prosecution is rendered doubtful then it is obvious that the benefit of doubt has to go to the accused.
22. As far as the contention of learned counsel for the petitioner qua the learned courts below not appreciating the factum of non-
compliance of the provisions of Section 65-B of the Evidence Act is concerned, in my considered view there is considerable force in the same.
There is no material on record from which it can be inferred that the requirements of Section 65-B of the Evidence Act were satisfied by the prosecution as there is neither any certificate in terms of Section 65-B of ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 15 Evidence Act obtained nor there is any expert opinion on record under Section 45-A of the Evidence Act.
23. Recently the Hon'ble Supreme Court o f India in Harpal @ .
Chotta and others Versus State of Punjab (Criminal Appeal No. 2539 of 2014/388 of 2015) decided on 21.11.2016 has held:-
"Qua the admissibility of the call details, it is a mater of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cell phones of involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing rt that all the stipulations contained under Section 65 of the Act had been complied within, in the teeth of the decision of this Court in Anvar P.V. ordaining an inflexible adherence to the enjoinments of Sections 65B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65B(2) had been complied with, in absence of a certificate under Section 65B(4), the same has to be held inadmissible in evidence.
This Court in Anvar P.V. has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above."
24. High Court of Kerala in Konnadan Abdul Gafoor Vs. State of Kerala, 2016 CRI.L.J. 2647 has held:-
"9. The probative information stored in digital form in a compact disc can be used before court as digital evidence or electronic evidence. The digital evidence is highly fragile and can be easily altered, damaged or destroyed and also time sensitive. Therefore special precaution should be taken to this document to collect preserve and examine this evidence. No analysis of the compact disc (hereinafter referred as CD) was made by the investigating officer to discover the ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 16 files in it. This includes normal files, deleted files and encrypted files. Therefore, for identification of the files in the CD digital evidence is necessary. Identification of the type of information stored in the disc is necessary, for this appropriate technology can be used to extract it. Without examining the digital data in a scientific manner, viewing of the CD by the Magistrate, Assistant Public Prosecutor and the Sub Inspector is unsustainable in law and their satisfaction is not an .
appreciation of electronics evidence in law. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, the same shall be accompanied by a certificate in terms of Section 65B obtained at the time of taking the documents, without which, the secondary evidence pertaining to that electronic record, is inadmissible. Moreover the expert opinion under Section 45A of the Evidence Act was not obtained relating to the stored data in electronic form. In the absence of such a certificate and opinion, the oral evidence to prove existence of such electronic evidence is not of sufficient to prove authenticity thereof.
10. However, while considering the offence under Section 292(2)(a), the prosecution has to prove that the accused sold, distributed and publically exhibited the obscene materials. Simply certain CDs were rt seized from a shop on the basis of information, in cannot be taken for granted that the revision petitioner was guilty of such crime. It is the primary responsibility of the prosecution to prove that the accused was in possess ion of the shop and the seized articles are obscene articles. In a case for offence under Section 292 of the IPC, prosecution has to prove that the accused sells, let to hire, distribute, 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, presentation or figure or any other obscene object whatsoever as alleged by the prosecution. There must be direct evidence with regard to the possession or sale of the obscene books or articles. There is no presumption with regard to possession, mere fact that some books were seized from a particular shop by a police officer. There may be exceptional cases, where the rule of presumption applies. In such cases, the proved facts and circumstances may speak for themselves and court may be justified in reaching a conclusion in the light of available evidence."
Therefore also, in my considered view, the judgment of conviction passed against the present petitioner by learned trial court and upheld by learned appellate court is not sustainable in law.
In view of discussion held above, this revision petition is allowed and judgment of conviction and sentence imposed upon the petitioner by the Court of learned Chief Judicial Magistrate, Hamirpur, in ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP 17 case No. 22-I of 2007/40-II of 2007, dated 5.4.2008, is set aside alongwith judgment passed in Criminal Appeal No. 27 of 2008, dated 10.9.2008 by the Court of learned Sessions Judge, Hamirpur. Petitioner is acquitted of .
the offences for which he was charged. Amount of fine deposited by the petitioner, if any, is directed to be refunded to him as per law. Pending miscellaneous application(s), if any, also stands disposed of.
(Ajay Mohan Goel) of Judge th 29 December, 2016.
(Guleria) rt ::: Downloaded on - 15/04/2017 21:50:23 :::HCHP