Bangalore District Court
State By Shivajinagar Police Station vs The Cross-Examination Of P.W.4 Was ... on 21 July, 2015
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 21st day of July 2015
Present : Sri.J.V.Vijayananda B.Com., LL.B
IX Addl.C.M.M.Bangalore.
JUDGMENT U/S.355 OF Cr.P.C..
1.C.C.No. 25312/2012
2.Date of Offence 1-5-2012
3.Complainant State by Shivajinagar Police Station
4.Accused 1. Altaf Pasha S/o Afizan, aged 26
years, No.596/D, 9th Cross, Bipani
Road, Yeshwanthapura, Bangalore.
2. Mohammed Saif S/o. Mohammed
Akbar, aged 18 years, Beshagalli,
Masalagalli, Shivajinagar, Bangalore.
3. Syed Tabrez S/o. Late Syed Apsar,
aged 25 years, No.3257/5,
Anthoniswamy Layout,
Lingarajapura,
Bangalore-560 084.
5. Offences complained Under Sections 52(A), 68(A) of
of Copyright Act 1957 and Sec.292 of
IPC.
6.Plea Accused Nos.1 to 3 pleaded not
guilty.
7.Final Order Accused Nos.1 to 3 are acquitted
2 C.C.No.25312/2012
8.Date of Order 21-7-2015
REASONS
The Sub Inspector of Police, Shivajinagar Police Station,
Bangalore has filed this charge sheet against the accused
Nos.1 to 3 for the offences punishable U/s.52(A) and 68(A) of
Copy Right Act 1957 and Sec.292 of IPC.
2. The brief facts of the prosecution case are that, on
1-5-2012 at 12-20 p.m., in Sangeeth Sagar Video Cassette
Shop situated at No.177A, D.K.Street, Shivajinagar within the
limits of Shivajinagar Police Station, the accused No.3 is being
the owner, the accused Nos.1 and 2 are being the workers of
the said shop were found in possession and selling of pirated
DVDs and MP3s of different language films over which super
cassette industries had copyright without there being any
authorisation or written consent from the copyright holder and
further the accused persons without any license were selling
obscene DVDs and thereby committed aforesaid offences.
3. The accused Nos.1 to 3 are on bail. On receipt of
charge sheet, this court took cognizance of the offences and
furnished the copies of the prosecution papers to the accused
Nos.1 to 3. After hearing on charges, this court framed the
charge for the offences punishable U/s.68(A) of Copyright Act,
3 C.C.No.25312/2012
1957 and Sec.292 of IPC., and questioned the accused Nos.1
to 3 regarding the charge made against them, they denied the
charge and claimed to be tried.
4. The prosecution in order to prove its case got examined
four witnesses as P.Ws.1 to 4 and got marked six documents
at Exs.P.1 to Ex.P.6 also marked 1 material object as per MO
1. Since C.Ws.2, 6 to 11 did not turn up before this court, by
rejecting the prayer of Sr.APP, this court dropped the
examination of said witnesses.
5. Thereafter, this court examined the accused Nos.1 to 3
as required U/s.313 of Cr.P.C., the accused persons denied
the incriminating evidence appeared against them and
submitted that they have no defense evidence.
6. I have heard the arguments on both sides.
7. The prosecution to prove the guilt against accused
Nos.1 to 3 has examined four witnesses. P.W.1 Mahalingaiah.
H.B is the head constable who said to have participated in the
raid. P.W.2 Ameen and P.W.3 Pawan Singh are the
independent seizure Mahazar witnesses. P.W.4 K.S.Venkatesh
Naidu is the Investigating Officer who conducted partial
investigation. It appears, in spite of giving sufficient
4 C.C.No.25312/2012
opportunities the prosecution has not examined other
witnesses on record.
8. The testimony of P.W.4 K.S.Venkatesh Naidu
indicating that on 1-5-2012 he, along with his police staffs
C.Ws. 5 to 7 herein were on bandubust duty within the limits
his Police Station. At that time, he received credible
information about selling of pirated DVDs in Sangeeth Sagar
Video Cassette center situated at D.K. Street, Shivajinagar
Bangalore. Accordingly, he called the representative of super
cassette industries C.W.2 herein, two independent panchas
C.Ws.3 and 4 herein and informed them regarding raid.
Thereafter, he and his staff along with C.Ws.2 to 4 the
representative of Super Cassette Center and panchas visited
and found two persons in the said shop. He enquired license
pertaining to CDs in the said shop, but the said two persons
pleaded no. Thereafter, he verified and found six thousand
thirty two pirated DVDs of English, Hindi, Tamil and Telugu
language and seventy obscene DVDs. Accordingly, he seized
the same by preparing the seizure Mahazar. Thereafter, he
registered the case, recorded the statements of C.Ws.2 to 7
and released the accused Nos.1 to 3 on station bail.
Thereafter, he obtained report regarding the seized DVDs as
pirated. On 8-3-2012, he recorded the statement of owner of
the building where Sangeeth Sagar Video Cassette center is
locating. Thereafter, he handed over case papers to C.W.8
another PSI, as he transferred from the said Police Station. It
5 C.C.No.25312/2012
is to be noted here that at the request of counsel for the
accused the cross-examination of P.W.4 was deferred.
Subsequently, P.W.4 has not tendered for cross-examination.
9. P.W.1 Mahalinagaiah.H.B the head constable has
almost corroborated the testimony of P.W.4. His testimony
indicating that on 1-5-2012 he, his colleagues were on
patrolling duty along with PSI of his Police Station P.W.4
herein. At that time his PSI P.W.4 herein, has received credible
information regarding selling of pirated DVDs in Sangeeth
Sagar Video Cassette center situated at D.K.Street.
Accordingly, P.W.4 has called two persons as panchas, along
with him, his staff and panchas conducted the raid. They
found accused Nos.1 and 2 in the said shop. Further, on
verification they found 6,032 pirated DVDs and MP3s of Hindi,
English, Telugu and Tamil language films. They also found 70
obscene DVDs. Thereafter P.W.4 has seized the same by
preparing the seizure Mahazar. It appears, though P.W.1 was
subject to cross-examination but nothing worth is elicited from
him to doubt his testimony.
10. In a case like this, the offences have to be proved in a
circumstantial evidence by way of proving the seizure Mahazar
of seized DVDs and MP3s beyond all reasonable doubt.
Further, the prosecution has to prove that the seized DVDs are
pirated and obscene. Further the prosecution has prove that
6 C.C.No.25312/2012
Super Cassette Industries has copyright over different
language films of seized DVDs and MP3s. Further, the
prosecution has to prove that A3 is the owner of Sangeeth
Sagar Video Cassette center and accused Nos.2 and 3 are the
worker in it.
11. It appears the prosecution to prove seizure Mahazar
has examined 4 witnesses. P.Ws.2 and 3 the independent
seizure Mahazar witnesses have totally turned hostile.
Though the learned Sr.APP., treated these two witnesses as
hostile and further cross examined them but nothing worth is
elicited from them.
12. It is to be noted here that, the cross-examination of
P.W.4 was deferred at the request of learned counsel for the
accused. However, subsequently P.W.4 has not tendered for
cross-examination. As per well-settled law, if the evidence of
any witness is recorded in part for some reason his evidence
has been deferred, subsequently, the said witness not
appeared for further examination, in such circumstances
whatever the part of evidence of witness of said witness cannot
be looked into. In the instant case though P.W.4 has given his
chief examination, subsequently, he has not tendered for
cross-examination. Therefore, whatever the evidence of P.W.4
cannot be looked for any purpose. Since the evidence of P.W.4
cannot be looked, the prosecution is relying upon the sole
7 C.C.No.25312/2012
testimony of P.W.1 to prove seizure Mahazar. As stated above,
though P.W.1 was subject to cross-examination, but nothing
worth is elicited from him. I have no reason to disbelieve the
testimony of P.W1 in the matter of conducting of raid and
seizer of 6032 pirated DVDs of different language films and 70
obscene CDs. Therefore, I am of the considered opinion that
the prosecution has successfully proved the seizure Mahazar
beyond all reasonable doubt.
13. In my opinion, mere proving of seizure Mahazar is not
sufficient to hold that the prosecution has proved its case
beyond all reasonable doubt. In my opinion, apart from
proving the seizure, the prosecution has also to prove that the
seized DVDs are pirated and obscene. It appears, during the
course of investigation and as per the testimony of P.W.4, the
seized DVDs and obscene CDs sent to the expert and intern
the said expert has issued certificate as per Ex.P.6. It appears
Ex.P.6 is the expert opinion issued by one MV.Suresh Babu
the representative of Super Cassette Industries who
accompanied at the time of seizer. But in spite of giving
sufficient opportunities, the prosecution has not examined
C.W.2. In my opinion, mere marking of Ex.P.6 is not sufficient
to hold that the prosecution has proved Ex.P.6 unless it
examines its author. Therefore, I am of the considered opinion
that the prosecution has failed to prove that the seized DVDs
are pirated and some of DVDs are obscene.
8 C.C.No.25312/2012
14. Further, the prosecution has not examined any
witness and has not been marked any documents to show that
the super cassette industries had copyright over different
language films of seized DVDs. Therefore, the prosecution has
failed to prove that the super cassette industries had copyright
over different language films of DVDs.
15. Further, the prosecution has not examined any
witnesses and has not been marked to any documents to show
that accused No.3 is the owner and accused Nos.1 and 2 are
the workers in Sangeeth Sagar Video Cassette center.
Therefore, having regard to the facts and circumstances of the
case and the evidence available on record, I am of the
considered opinion that the prosecution has failed to prove its
case beyond all reasonable doubt. Accordingly, I proceed to
pass the following:
ORDER
This court did not found guilt of accused Nos.1 to 3 for the offences under Sections 68(A) of the Copyright Act, and Sec. 292 of IPC.
Hence, acting under Sec.248(1) of Cr.P.C., the accused Nos.1 to 3 have been acquitted for the above referred offences.
Their bail bonds and surety bonds stand cancelled.
9 C.C.No.25312/2012Mo.1 i.e., the seized DVDs are being worthless shall be destroyed after appeal period is over.
(Dictated to the Stenographer directly on computer and print out taken by her is verified and then pronounced by me in the open court on this the 21st day of July 2015) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1, Mahalingaiah.H.B, P.W.2, Ameen, P.W.3, Pawan Singh, P.W.4, K.S.Venkatesha Naidu, LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P1, Mahazar
Ex.P1(a) Signature
Ex.P.1(c) Signature
Ex.P.2 Statement
Ex.P2 (a) Signature of P.W.2,
Ex.P3 Statement
Ex.P3(a) Signature of P.W.2
Ex.P4 Complaint
Ex.P.4 (a) Signature
Ex.P.5 FIR
Ex.P.5(a) Signature
Ex.P.6 Report
10 C.C.No.25312/2012
Ex.P.6(a)
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :
M.O.1 CDs and DVDs LIST OF WITNESSES EXAMINED, DOCUMENTS &
MATERIALS MARKED ON BEHALF OF THE DEFENCE: NIL IX ADDL.C.M.M. Bangalore.11 C.C.No.25312/2012
Judgement pronounced in the open court vide separate sheet.
ORDER This court did not found guilt of accused Nos.1 to 3 for the offences under Sections 68(A) of the Copyright Act, and Sec. 292 of IPC.
Hence, acting under Sec.248(1) of Cr.P.C., the accused Nos.1 to 3 have been acquitted for the above referred offences.
Their bail bonds and surety bonds stand cancelled.
Mo.1 i.e., the seized DVDs are being worthless shall be destroyed after appeal period is over.
IX ADDL.C.M.M. Bangalore.