Delhi District Court
State vs Sourav on 29 August, 2012
IN THE COURT OF SH. MUNEESH GARG
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
FIR No. 427/2004
U/s 292 IPC
State versus Sourav
PS Farsh Bazar
JUDGMENT
a. Unique ID Number of the case : R018322005 b. Sl. No. of the case : 355/2 c. Date of commission of offence : 12.12.04 d. Date of institution : 22.12.08 e. Name of complainant : HC Ajay Pal f. Name & address of accused person : Sourav S/o Lal Chand Aggarwal R/o 4/2737, Gali No. 4, Bihari Colony, Shahdara, Delhi-32.
g. Offence complained of : U/s 292 IPC h. Plea of accused : Pleaded Not Guilty i. Date when judgment was reserved : Not reserved j. Final order : Acquitted k. Date of Judgment : 29.08.2012 BRIEF STATEMENT OF REASONS FOR DECISION
01. Briefly stated the version of the prosecution is that on 12.12.2004 at about 08:30 pm at Gali No. 14, Jharkhandi Road, Bhola Nath Nagar, Farsh Bazar, Delhi within the jurisdiction of PS Farsh Bazar, accused Sourav was found in possession of 02 CDs (on which WRITEX & JUPITER was FIR No. 427/2004 Page No. 1/11 written) of blue films and thereby committed an offence punishable u/s 292 IPC.
02. After filing of the police report, cognizance of offence under section 292 IPC was taken by the Learned Predecessor of Court and the accused was called upon to face trial after complying with the requirement of section 207 of Cr.P.C.
03. On 19.02.2008, after hearing the Ld. APP for the State and the accused, a formal notice was framed against the accused for having committed an offence punishable under section 292 IPC to which the accused pleaded not guilty and claimed trial.
04. Prosecution adduced evidence in support of its case.
05. PW1 Head Constable Naresh Kumar is a recovery witness who deposed that on 12.12.2004 he was posted as constable in police station Farsh bazaar. On that day, he alongwith constable Sushil (PW 2) and PW 3 (HC Ajay Pal) was on patrolling duty in the area of police station. On the information of secret informer, at about 08:30 p.m., they apprehended the accused person. On his formal search, two CDs were recovered from right pocket of his pant. On interrogation, they came to know the name of the accused as Sourav who is present in the court and correctly identified. The CDs were checked at Sachin Telecom Centre with the help of CD player and TV at which they found obscene contents in the CDs. IO seized the abovesaid both the CDs vide seizure memo Ex. PW- 1/A and sealed with FIR No. 427/2004 Page No. 2/11 the seal of APG. Seal after use was handed over to constable Sushil (PW 2). IO prepared rukka and handed over the same to Constable Sushil for registration of FIR. Accused was arrested and personally searched vide memo Ex. PW-1/B and PW-1/C respectively. Case property was deposited in the malkhana. PW-1 identified the case property Ex. P1 & Ex. P2.
06. PW 2 Constable Sushil is also a recovery witness who deposed that he alongwith Ct. Naresh Kumar and HC Ajay Pal apprehended the accused with two obscene CDs. He also deposed regarding the seizure of the case property, preparation of rukka, arrest and personal search of the accused. He identified the accused and case property Ex. P1 & Ex. P2 in the court.
07. PW 3 Head Constable Ajay Pal, Investigating Officer of the instant case deposed those very investigative steps which were taken by him during the course of investigation. . He also deposed regarding the seizure of the case property, preparation of rukka, arrest and personal search of the accused. He identified the accused and case property Ex. P1 & Ex. P2 in the court.
08. After closure of prosecution evidence, the statement of the accused was recorded u/s 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused and he was questioned generally on the case. He denied all the allegations and stated that he is innocent and has been falsely implicated in this case. The accused opted not to lead any defence evidence.
FIR No. 427/2004 Page No. 3/1109. I have heard the submissions of both the parties and perused the evidence on record carefully.
10. Ld. Counsel for the accused argued that prosecution has failed to prove that the content of the CDs are obscene as neither the same were displayed in the Court nor any photograph of the contents of the CDs are placed on the record. I find merit in the submission of the Ld. Counsel for the accused. To prove the offence U/s 292 IPC, it is necessary for the prosecution that the contents of the seized CDs Ex. P1 & P2 are obscene as to tend to deprave and corrupt person. However, the prosecution has failed to prove the same. Prosecution has not proved the contents of the CDs by displaying the same in the Court. Even prosecution has not placed on record the secondary evidence i.e. the photographs of the contents of the CDs to prove that the contents of the CDs are obscene. PW-1 in his examination stated that CDs were checked at Sachin Telecom Centre with the help of CD player and TV at which they found the obscene contents of the CDs. However, the owner of the abovesaid centre was not made a witness by the IO to prove that contents of the CDs are obscene. Therefore, prosecution has failed to establish the necessary ingredients of section 292 IPC.
11. Moreover, I find serious doubt on the story of the prosecution of alleged recovery of two CDs from the possession of the accused. As per the prosecution version, PW 1, PW 2 and PW 3 were on patrolling duty in the area of police station and apprehended the accused alongwith case property from the spot. However no document/DD entry have been shown by which it can be proved that they left the PS for duty in the concerned area.
FIR No. 427/2004 Page No. 4/11For knowing the importance of the DD entry of arrival and departure of the police officials from the police station, I have perused Chapter 22 Rule 49 of Punjab Police Rules, 1934 which reads as under:
"22.49 Matters to be entered in Register No. II. The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at all police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note:The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
In the present case, the above said provision appears to have not been complied with by prosecution. As per the prosecution version at the time of the apprehension of the accused with two obscene CDs, PW 1 Ct. Naresh Kumar alongwith PW 2 Sushil and PW-3 HC Ajay Pal was on patrolling duty in the concerned area but the DD entry vide which they had left the PS for patrolling duty in the concerned area have not been brought on record. The number of the said DD entry made in Register No. II has not even been brought on judicial record. In my opinion, prosecution was under an obligation to prove on record, the above said DD entry vide which above said police officials had left the PS for patrolling duty so as to prove the possibility of availability of Prosecution Witnesses at the place of FIR No. 427/2004 Page No. 5/11 apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have proved the DD entry by which the above said police officials had left the PS so as to inspire the confidence regarding their availability / presence at the place of apprehension of the accused.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal versus State 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that "if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
12. IO has also not made any public witnesses of the recovery of the alleged liquor despite the fact that alleged spot was a residential area. In this regard, the explanation of the prosecution witnesses was that none of the public persons agreed to join the investigation. IO PW-3 (HC Ajay Pal) deposed that he asked 4-5 public persons to join the investigation but all of them refused and left the spot without disclosing their names and addresses. PW-6 also deposed in his cross examination that spot is a residential place and public persons were coming and going from there. The explanation given by the prosecution witness does not seem plausible because in the FIR No. 427/2004 Page No. 6/11 police report as well as the testimony of the prosecution witnesses, the names of the public persons, who were requested to join the investigation, have not been mentioned. It is apparent that no genuine efforts have been made to join the public witnesses despite their availability. IO has also not taken any action against such public persons who did not tender help to the public servant despite they were being under an obligation to render help on the legitimate request of the public servant.
I have also relied upon citation Sadhu Singh versus State of Punjab, (1997) 3 Crimes 55 (PH) wherein it is held that:
"there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genius attempt having been made to join public witnesses. It is further held that a stereotype statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness."
Keeping in view of the citation, I am of the considered view that prosecution has failed to show a genuine effort to make a public witness in regard of alleged recovery of case property from the possession of the accused.
IO PW 3 deposed in his examination-in-chief that recovered CDs were checked at Sachin Telecom Centre with the help of CD player and TV at which they found obscene contents in the CDs. Strangely, owner of Sachin Telecom Centre was not joined as a witness. In a case law reported FIR No. 427/2004 Page No. 7/11 as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
18. "It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made particularly when we find that shops were open and one or two shop-
keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
13. There are other inconsistencies on the record which have not been explained. Perusal of the deposition of prosecution witnesses reveals that the case property was first seized and then rukka was prepared for registration of FIR. Thus according to the prosecution witnesses, FIR was registered after seizure of CDs. However, the seizure memo bears the FIR number. At the time of the seizure, FIR number was not available and therefore, FIR no. could not have figured on the seizure memo. The existence of FIR no. on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore, ante timed. This erodes the credibility of the witness who has stated that the seizure memo FIR No. 427/2004 Page No. 8/11 was prepared on the spot and before the registration of FIR.
In Lalji Shukla Vs. State (2000) 1 AD (Cr.) DHC, M.S.A. Siddiqui, J. of Delhi High Court observed as follows:
"4.....the prosecution has not offered an explanation whatsoever as to under what circumstances number of the FIR (Ex. PW6/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This give rise to two inferences that either the FIR (Ex PW6/B) was recorded prior to the alleged recovery of the contraband or number of the FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant."
14. No efforts whatsoever have been made by the prosecution to have clue about the source from where CDs were arranged for by the accused. At least, some efforts must have been made by the police to interrogate the accused and conduct the requisite investigation to know as to from where the accused arranged the CDs. It could be a result of either a hasty FIR No. 427/2004 Page No. 9/11 investigation or a shoddy investigation but in either case, the benefit should go to the accused.
15. There are other contradictions which creates doubts on the version of the prosecution. PW-1 and PW 2 in their cross-examination stated that accused was arrested at about 8:30 p.m. whereas, PW-3 HC Ajay Pal stated in his cross examination that accused was arrested at about 10:20 p.m. PW-2 in his cross examination stated that he took rukka to police station at about 9:40 p.m. and came back at the spot along with copy of FIR and rukka at about 10:00 p.m. whereas PW-3 deposed that Ct. Sushil took rukka to police station at about 9:40 p.m. and came back at the spot along with copy of FIR and rukka at about 10:15 p.m. Keeping in view of the aforesaid fact, I am of the considered view that prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
16. In view of the above discussion I hold that the accused is not found guilty of the charge framed against him and he is acquitted of the charge under section 292 IPC framed against him. Bail bond of accused and surety be discharged after six months in view of the section 437 A CrPC. After compliance file be sent to record room. Case property be confiscated to State as per rules and same be destroyed.
ANNOUNCED IN THE OPEN (MUNEESH GARG)
COURT ON 29.08.12 METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS,
DELHI
FIR No. 427/2004 Page No. 10/11
FIR No. 427/2004
U/s 292 IPC
State versus Sourav
PS Farsh Bazar
29.08.12
Present: Ld. APP for the State.
Accused with counsel.
Clarification addressed.
Vide my separate judgment of even date, accused is acquitted of the charge under section 292 IPC. In compliance of u/s 437 A CrPC, bail bond of accused is extended for the prescribed period. Documents, if any be released after cancellation of endorsement to the person entitled. File be consigned to record room after compliance.
(Muneesh Garg) MM/KKD/29.08.12 FIR No. 427/2004 Page No. 11/11