Delhi District Court
State vs . Robin Singh on 3 June, 2019
IN THE COURT OF SH. DEVENDER KUMAR GARG,
CHIEF METROPOLITAN MAGISTRATE (NORTHEAST)
KARKARDOOMA COURTS, DELHI.
State vs. Robin Singh
FIR No. 20/08
U/s : 63/68 of Copy Right Act
P.S.: M.S. Park
CIS No. 465629/15
Date of Institution : 23.05.2009
Date of reserving of order : 25.05.2019
Date of pronouncement : 03.06.2019
JUDGMENT
1. Case No. : 465629/15
2. Name of the complainant : Sh.Shivender Kumar (Investigator)
3. Date of incident : 17.01.2008
4. Name of accused persons : Robin Singh
S/o Sh.Sushil Kumar
R/o 1/4, 649/93B,
New Modern Shahdara,
Delhi110032.
5. Offence complaint of. : 63 of Copy Right Act
6. Plea of accused : Pleaded not guilty
7. Final order : Acquitted
8. Date of such order : 03.06.2019
FIR No. 20/08, P.S. M.S. Park Page 1 of 17
BRIEF REASONS FOR SUCH DECISION
1. Brief facts of the case of prosecution are that a written complaint was given by complainant namely Sh.Shivander Kumar, Investigator of The Indian Music Industry (IMI), G11, Nizamuddin West, New Delhi110013 to DCP, NorthEast Distt. on 17.01.2008 alleging therein that "IMI is a Trade Association of 90 music companies in India amongst being Saregama India Ltd., Universal Music (I) Ltd., Tips Industries Ltd., Venus Records & Tapes Ltd., Sony Music Entertainment (I) Ltd., BMG Crescendo & Others. The above said companies are engaged in the business of manufacture and sale of sound recordings, prerecorded audio cassettes, Vinyl Discs and Compact Discs (Audio), MP3 & also allowing the telecom Companies to load their copyrighted songs in mobiles and mobile chips and the said companies are holding independent copyrights (under the Indian Copyright Act, 1957 as amended from time to time) in various sound recordings and packaging designed especially to accompany the sound recording and between them hold a repertoire of both film and nonfilm music & Sony Playstation (Games). IMI has given him significant training to identify the pirated audio cassettes/ CDs/Sony Playstation games and he is also aware of the differences between the duplicates and originals Mcs/Music Cds/Sony Playstation games and can identify them by seeing them visually. He has been FIR No. 20/08, P.S. M.S. Park Page 2 of 17 authorized to monitor instances of Copyright Infringement of sound recordings i.e. Audio cassettes/CDs/Sony Playstation games and downloading of songs in Mobile Chips etc. and to lodge complaint and assist the police at the time of raid with identification of illegitimate cassettes/CDs (Audio), Loading of songs in mobile chips & Sony Playstation (Games) etc. It has come to their knowledge that certain persons are undertaking illegal business of manufacturing/ distributing/selling audio cassettes, CDs, fake inlay cards & Sony Playstation games and also downloading of songs in Mobile Chips, the copyright of which are vested in the above mentioned companies and these persons are carrying out their business under the jurisdiction of PS M.S. Park. The police has power to take action u/s 63, 64(i) of the Copyright Act, 1957 and seize the goods and file cases against U/s 51, 52A read with 63, 68A & 65 of the Copyright Act, 1957 and the police has also got the powers to seize all the material which do not fulfill requirement of Section 52A which stipulates inclusion of particulars of names and address of the person who made it, names and addresses of the owner of Copyright and year of first publication in any work including Audio Cassettes, MP3, CDs, DVDs and VCDs etc."
2. It is also case of prosecution that on the basis of the above said complaint, a raid was conducted by the police on 17.01.2008 in a shop of Friends Communication, situated near Indira Piyau, DDA FIR No. 20/08, P.S. M.S. Park Page 3 of 17 Flats Road, Delhi, where accused was found loading songs of movies such as Diwana, Bazigar, Dil to Pagal Hai, Kuch Kuch Hota Hai, Pardes, Dar and Dilwale Dulhaniya Le Jayenge on mobile phones of different persons without any authority or licence to do so in violation of the Copy Rights Act of the actual owners. Accordingly, present FIR No.20/08 dated 17.01.2008 u/s 63/68 of the Copy Right Act was registered at P.S. Mansarover Park against the accused.
3. After completion of investigation, charge sheet was filed against the accused for offences u/s 63/68 of Copy Right Act on 23.05.2009 and on the same day, cognizance was taken of the offence committed by accused by Ld. Predecessor of this court. Thereafter on 26.10.2009, accused had appeared before the court and copy of the challan was supplied to him in compliance of Section 207 of Cr.P.C.
4. Thereafter, vide order dated 19.12.2011, charge for offence u/s 63 of Copy Right Act was framed against the accused and the same was explained to him in simple Hindi, to which, he had pleaded not guilty and claimed trial. The said charge is as follows: "That on 17.01.2008 at about 9.10 p.m. at 1/2307, Ram Nagar, Shahdara, Delhi, you were found loading the songs of movies such as Diwana, Bazigar, Dil To Pagal Hai, Kuch Kuch Hota Hai, Pardes, Dar and Dilwale Dulhaniya Le Jayenge on mobiles of different persons without having any FIR No. 20/08, P.S. M.S. Park Page 4 of 17 authority or licence to do so in violation of the Copy Rights of the actual owners and thereby committed an offence punishable under Section 63 of the Copy Right Act and within my cognizance."
5. In order to prove its case, the prosecution has examined nine witnesses. Ct. Pramod Kumar, who was member of the raiding team, was examined as PW1, HC Naresh, who proved the entry regarding deposit of case property in the Malkhana of PS M.S. Park, was examined as PW2, Sh.Shivender Kumar, who was the complainant, was examined as PW3, ASI Siya Nand, who was Duty Officer, was examined as PW4, Sh.Lajja Ram, who was landlord of the accused in respect of the shop in question, was examined as PW5, SI U. Bala Shankaran, who was the investigation officer of this case, was examined as PW6, ASI Devender Kumar, who was also a member of the raiding team, was examined as PW7, Insp. Ajeet Kumar, who was also investigation officer and filed charge sheet in the present matter, was examined as PW8 and Sh.Ashwani Kumar, Legal Assistant of Indian Music Industry, who proved documents regarding Copy Right of the songs in question, was examined as PW9. Thereafter, PE was closed vide order dated 20.03.2018. Perusal of the file would show that PW9 Sh.Ashwani Kumar was examined u/s 311 Cr.P.C. vide order dated 28.05.2018 and after his examination, PE was closed vide 23.04.2019. Following documents were exhibited in the evidence of the above said prosecution witnesses : FIR No. 20/08, P.S. M.S. Park Page 5 of 17 "Seizure memo of chip/memory card as Ex.PW1/A, arrest memo of accused as Ex.PW1/B, personal search memo of accused as Ex.PW1/C, copy of entry bearing no.1561 dated 17.1.2008 in register no.19 as Ex.PW2/A, original complaint as Ex.PW3/A, seizure memo of case property as Ex.PW3/B, certificate of incorporation consequence on change of name as Ex.PW3/C10, copy of FIR as Ex.PW4/A, endorsement on the rukka as Ex.PW4/B, Rukka as Ex.PW6/A, site plan of the spot as Ex.PW6/B, documents regarding copy rights of the songs in question as Ex.PW9/A to R, memory card as Ex.P1 (also exhibited as Ex.P5), plastic dibbi as Ex.P2, remaining case property as Ex.P3 and songs as Ex.P4 (colly).
6. After that, statement of accused u/s 281 read with Section 313 of Cr.P.C. was recorded on 16.05.2019 in which all incriminating evidence were put to the accused, to which, he denied all allegations against him. He had stated that he is innocent and has been falsely implicated in the present matter. He had further stated that his system was not working and he had not loaded songs as alleged and he did not sell any memory card to the complainant. He had further stated that he did not want to examine any witness in his defence and accordingly, DE was closed vide order dated 16.05.2019.
7. I have already heard final arguments from Sh.Pradeep Kumar, Ld. APP for State and Sh.J.M. Mittal, Ld. Counsel for accused FIR No. 20/08, P.S. M.S. Park Page 6 of 17 and perused the entire material available on record carefully.
8. The relevant provision of Copy Right Act for purpose of disposal of the present matter i.e. Section 63 of Copy Right Act is as under : "63. Offence of infringement of copyright or other rights conferred by this Act.--Any person who knowingly infringes or abets the infringement of-
(a) the copyright in a work, or
(b) any other right conferred by this Act except the right conferred by section 53A, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees."
9. I have already heard Shri Pradeep Kumar Ld. APP for the State and Sh. J. M. Mittal Ld counsel for the accused and perused the material available on record.
10. Ld. APP has contended that the prosecution has proved his case against the accused beyond reasonable doubt. On the other hand, Ld. Counsel for the accused has contended that at the stage of charge, accused was discharged by Ld. Predecessor of this court and thereafter in view of order passed by Ld. ASJ, the present matter was proceeded FIR No. 20/08, P.S. M.S. Park Page 7 of 17 for evidence. He further contended that no steps were taken by the prosecution for fulfilling the lacunae as found by Ld. Predecessor of this court and further contended that accused has been falsely implicated. He further contended that no public witness was joined during investigation and further contended that the authenticity of the alleged sound track found in the computer as well as in the alleged memory card was not verified and hence no case is made out against the accused. He also drawn the attention of this court towards the contradictions and inconsistencies in the statement of witnesses and further contended that accused is entitled for acquittal in the present matter.
11. Perusal of the file would show that accused was initially discharged by Ld. Predecessor of this court vide order dated 25.09.2010 observing that he had no hesitation in holding that in the absence of any investigation having being conducted by the IO in the present matter regarding ascertainment of genuineness, authenticity and originality of the sound tracks stored in the computer of the accused, there was no incriminating evidence against him to fasten the liability upon him regarding any offence u/s 63/68 of Copy Right Act and hence the accused was discharged. The above said order was challenged by the prosecution by which the above said order was set aside by Ld. ASJ inter alia observing that Ld. trial court altogether discarded the evidence on record and statement of witnesses including FIR No. 20/08, P.S. M.S. Park Page 8 of 17 the complainant and also the trial court failed to appreciate the documentary evidence placed on the file in favour of complainant's company.
12. In brief the case of the prosecution is that the accused was found loading songs of some movies on mobile phone of decoy customer i.e. PW3 and took an amount of Rs. 100/from him.
13. Perusal of the file would show that the investigating Officer has seized the computer and accessory, the identity of which was not disputed by the accused during trial and same were exhibited as Ex. P3. It is not the case of the prosecution that data stored or the alleged sound tracks were got authenticated from FSL or any other institute expert in determining the originality or genuineness of the sound track that the said alleged sound track pertains to company of complainant. The same was a material piece of evidence which the IO was required to do during the investigation because in the absence of the same, it cannot be proved that sound track found in the computer belonged to company of complainant. In his cross examination, PW6 IO SI U. Bala Shankaran deposed that authenticity and genuineness of sound track of computer was not examined by any agency as the complainant Shivender was himself a technical expert and was an eye witness of the incident of downloading of sounds and infringement of provisions of Copy Right Act.
FIR No. 20/08, P.S. M.S. Park Page 9 of 1714. The court does not agree with the explanation given by Investigating Officer because if the IO had got verified the genuineness or originality of alleged sound track, then he would have got the objective analysis from FSL or CFSL and it is not disputed that such facility is available. The investigation officer relied upon the knowledge of the complainant for proving the genuineness of originality of said sound track which is not sufficient to prove the same as the complainant would have only subjective criteria to identify the originality of sound track. No such documentary report was prepared by PW3. Further, the complainant is Authorized Representative of the complainant company and he cannot be taken as independent witness, particularly, for proving the genuineness of the alleged sound track found in the computer of the accused. This court is of the view that the Investigating Officer did not collect best evidence despite the fact that it was within his domain to collect it. This fact also becomes material in the scenario when accused was discharged by the Ld. Predecessor of this court at one point of time, however, it is also matter of record that the said order was set side by Ld. ASJ. This was a clear indication to the IO or the prosecution to have proper steps to verify authenticity or originality of the sound track found in the computer of the accused.
15. During the cross examination of PW1, he had deposed that he had told to the IO in his statement that he along with Complainant FIR No. 20/08, P.S. M.S. Park Page 10 of 17 Shivender had reached the shop of the accused, when he was confronted with his statement u/s 161 Cr.PC Ex. PW1/DA where it was not found so recorded. He further deposed in his cross examination that he had not told to the IO in his statement that Ct.Devender had gone the shop of the accused. He was confronted with his statement Ex. PW1/DA wherein it was so recorded.
16. In his cross examination, PW1 deposed that when they reached at the shop of the accused, accused was sitting with another person. Perusal of the file would show that no said person was made witness to the investigation, however, that person could have been the best and independent witness to the incident. During the cross examination of many witnesses it has come on record that the IO had asked to join a number of persons but they refused, however, they have also admitted that no notice was given to the said persons. The same shows that no sincere efforts were made on behalf of the Investigating Officer to join independent witness during the investigation.
17. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999(1) C.L.R. 69, the Punjab & Haryana High Court held as under : "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the FIR No. 20/08, P.S. M.S. Park Page 11 of 17 possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, If they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating FIR No. 20/08, P.S. M.S. Park Page 12 of 17 Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worth of credence. All these facts taken together make the prosecution case highly doubtful".
18. In the cross examination, PW3 Sh. Shivender Kumar deposed that he asked the accused to download total eight songs in memory card and he further deposed that after downloading of the songs, he had heard total eight songs of the movies in the memory card. The above said facts are materially contradicted by the said witness in his examination in chief by memory card Ex. P5 which was played in the court on a laptop in which seventy songs of different movies 'Dilwale Dulhaniya Le Jayenge, Darr etc. were found. When PW3 had asked only for eight songs then the accused was not expected to download more songs and this fact is verified by the deposition of PW3 where he had stated that he had heard the said eight songs and he did not say that they were more than eight or seventy songs. The prosecution has projected PW3 as a technical expert and this court is of the view that technical expert cannot be so casual as not to remember whether the same were eight songs or seventy songs. It is also admitted on record that the said memory card Ex. P5 has also not been sent to FSL for proving its authenticity or for comparison of the FIR No. 20/08, P.S. M.S. Park Page 13 of 17 songs in the same with original sound track. This fact also creates doubt in the story of the prosecution.
19. PW3 has deposed that the accused gave him songs along with memory card for an amount of Rs. 100/ but no such receipt or acknowledgment is on the record. It is also not the case of the prosecution that the complainant had asked for slip of Rs. 100/ or it was refused by the accused.
20. During his cross examination, PW3 Sh. Shivender Kumar admitted that there was no identification mark on the said memory card and further admitted that he was not having any documentary proof of purchasing memory card. He even admitted that he had not made any demand from the accused to issue the receipt of Rs. 100/. He showed his ignorance whether IO had conducted any investigation regarding the genuineness, authenticity or originality of the sound track stored in the computer of the accused. He also admitted that memory cards are easily available in the market which are similar to Ex. P1.
21. Perusal of the deposition of material witnesses would show that there are material contradictions and inconsistencies in the statements and their deposition do not inspire the confidence of this court. The matter has also not been investigated fairly and thoroughly as best evidence could not be collected during investigation.
FIR No. 20/08, P.S. M.S. Park Page 14 of 1722. It has been observed by Hon'ble Supreme Court of India in the judgment titled as "Kailash Gour & Ors. vs. State of Assam"
2012(1) JCC 519 as under: "28. It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused 'may have committed the offence' and 'must have committed the offence' which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away. See Narender Singh and Anr. v. State of M.P., 2004 (2) JCC 832 : (2004) 10 SCC 699 and Ranjit singh Brahmajeetsingh Sharma v. State of Maharastra and Ors.,2005(2) JCC 689 : (2005) 5 SCC 294. To the same effect is the decision of this Court in Ganesan v. Rama S. Raghuraman and Ors., (2011) 2 SCC 83, where this Court observed:
"Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India."
23. It has also been observed by Hon'ble Supreme Court of India in judgment titled as "Harbeer Singh v. Sheeshpal & Ors." 2017 (1) FIR No. 20/08, P.S. M.S. Park Page 15 of 17 JCC 289 as under: "11. It is cardinal principle of criminal juris prudence that the guilty of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, 2003 (3) JCC 1372; (2003) 8 SCC 180; Chandrappa & Ors. vs. State of Kernataka, (2007) 4 SCC 415: Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242].
24. In a case titled in AIR 1956 Cr. L.J. 1234, it was held that, "In the event of any doubt as to the guilt of accused, the benefit will go to the accused".
25. In such cases, in view of Saifulla Vs. State reported in 1998 (1) CCC 497 (Delhi) and Abdul Gaffar Vs. State reported in 1996 JCC 497 (Delhi), benefit of doubt is to be given to the accused.
FIR No. 20/08, P.S. M.S. Park Page 16 of 1726. It is settled principle of law that the prosecution is required to prove its case beyond reasonable doubt. After perusal of the record of this case carefully, this Court is of the view that deposition of material witnesses of the prosecution suffers from contradictions, inconsistencies and does not inspire confidence of this Court. The investigation is also defective on certain material points as discussed in the judgment.
27. Taking into consideration all the facts and circumstances and material available on record, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence, accused namely Robin Singh is acquitted from charge of offences u/s 63 of Copy Right Act. Digitally signed Devender by Devender Kumar Garg Kumar Date:
Announced in open court Garg 2019.06.04
16:52:12 +0530
on 03.06.2019
(DEVENDER KUMAR GARG)
CMM (NORTHEAST DISTT.)
KKD COURTS, DELHI.
FIR No. 20/08, P.S. M.S. Park Page 17 of 17