Delhi District Court
In Re: State vs Subodh Kumar on 25 November, 2010
IN THE COURT OF GAURAV RAO: METROPOLITAN
MAGISTRATE: DELHI
In Re: STATE VERSUS SUBODH KUMAR
F.I.R. No: 788/05
U/s 292 IPC
P.S. Nangloi
Date of Institution of Case : 18.11.2005
Date of Judgment Reserved for: 25.11.2010
Date of Judgment : 25.11.2010
JUDGEMENT:
(a) The serial no. of the case : 3019/1/08
(b) The date of commission of offence : 07.08.2005
(c) The name of complainant : HC Dalbir Singh
(d) The name, parentage of
accused : Subodh Kumar s/o Shiv
Shankar Pandey r/o H.
No. C-15, Shiv Ram
Park,
Nangloi, Delhi.
Present Address : As above.
(e) The offence complained of: 292 IPC
(f) The plea of accused : Pleaded not guilty
FIR No. 788/05 1/15
(g) The final order : Convicted
(h) The date of such order : 25.11.2010
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 07.08.2005 at about 6:40 PM at Footpath near bus stand, Peergarhi Flyover, Delhi within the jurisdiction of PS Nangloi the accused was found in possession of 4 obscene books which were kept by the accused for sale/ to let on hire and thus thereby the accused committed an offence punishable u/s 292 IPC.
2. Charge sheet was filed in the court, accused was supplied the documents in compliance of section 207 Cr.P.C and vide order dated 15.09.2010 charge u/s 292 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined 3 witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. Accused also lead his DE and examined Sh. Brijnandan Pandey as DW1 and himself as DW2.
A brief scrutiny of the evidence recorded in the matter is as FIR No. 788/05 2/15 under.
4 PW1 HC Baljeet Singh deposed that on 07.08.2005 while he was posted as duty officer at PS Nangloi on receipt of rukka through Ct. Hawa Singh sent by HC Dalbir Singh he recorded case FIR no 788/05 Ex. PW1/A. 5 PW2 Ct. Hawa Singh deposed that on 07.08.2005 he was posted at PS Nangloi and on that day he was on patrolling duty along with HC Dalbir Singh in beat no. 1, Udyog Nagar, Nangloi. At about 6:30 p.m. when they reached near Peera Garhi Red Light, a secret informer met them and informed that one boy was selling obscene material/books near Bus stand. On this information IO HC Dalbir Singh requested 4/5 passerby to join the investigation but none of them agreed and left the spot without disclosing their names and address, citing their own genuine problems. He deposed that without wasting time they apprehended the accused sitting on a footpath/patri near bus stand Peeragarhi Flyover and found obscene books/material in the books kept by him for sale. Accused (correctly identified) disclosed his name as Subodh Kumar @ Pappu s/o Shiv Shankar Pandey. He deposed that IO checked all the material and found four obscene books with obscene photographs and written material. He further deposed that four books were having name (1) Dhoom Macha Le, (2) don"t we wrong, (3) college girl and (4) Behakte Kadam. He deposed that on seeing these FIR No. 788/05 3/15 photographs/books the nearby passing persons were also feeling offended. He further deposed that IO seized all the obscene books by preparing a pullanda duly sealed with the seal of DS vide seizure memo Ex. PW2. IO prepared the ruqqa as Ex. PW2/B which he took to PS, got the case FIR registered and came at the spot along with copy of FIR and ruqqa. He deposed that IO prepared the site plan Ex. PW2/C and arrested the accused vide arrest memo Ex. PW2/D. He deposed that Accused's personal search was carried out vide personal search memo Ex. PW2/E. Accused was released on bail and case property was depositing in the Malkhanna.
This witness duly identified the case property when the same was produced in the court by the MHC (M) as colly. Ex. P-1.
6 During his cross examination he admitted that the spot was busy public place and many public persons were present nearby. He admitted that there were other Rehries nearby but the people do not want to indulge in the matter pertaining to court/Kachhari. He stated that IO did not take any steps against the persons who refused to join the investigation. He stated that they received the information at around 6:30 p.m. and at that time IO was with him. He stated that the spot was around 250/300 feet from where the informer met them. IO had made the enquries from the accused regarding the obscene books and he told him that he was selling the books in question to earn more profit. He stated that they reached the spot within 10 minutes of receiving information. He denied the suggestion that no FIR No. 788/05 4/15 obscene books were recovered from the accused or that they were planted upon him. He further denied the suggestion that accused was not present at the spot and he was arrested after calling from his house at the PS itself. He denied the suggestion that accused was not selling obscene books or that he instead works at a factory. He denied the suggestion that due to some quarrel in the neighborhood where the accused resided he was falsely implicated in this case. He stated that no purchaser was present at the time when the books were recovered from the possession of the accused. He denied the suggestion that he was deposing falsely.
7 PW3 HC Dalbir Singh deposed that on 07.08.2005 he was posted at PS Nangloi as HC and on that day he was on patrolling duty along with Ct Hawa Singh in beat no. 1, Udyog Nagar, Nangloi. At about 6:30 p.m. when they reached near Peera Garhi Red Light, a secret informer met them and informed that one boy was selling obscene material/books near Bus stand. He deposed that on this information he requested 4/5 passerby to join the investigation but none of them agreed and left the spot without disclosing their names and address, citing their own genuine problems. He deposed that without wasting time they apprehended the accused sitting on a footpath/patri near bus stand Peeragarhi Flyover and found obscene books/material in the books kept by him for sale. Accused (correctly identified) disclosed his name as Subodh Kumar @ Pappu s/o Shiv Shankar Pandey. He deposed that he checked all the material and FIR No. 788/05 5/15 found four obscene books with obscene photographs and written material. Four books were having name (1) Dhoom Macha Le, (2) don"t we wrong, (3) college girl and (4) Behakte Kadam. He deposed that on seeing these photographs/books the nearby passing persons were also feeling offended. He deposed that he seized all the obscene books by preparing a pullanda duly sealed with the seal of DS vide seizure memo already Ex. PW2/A. He deposed that he prepared the ruqqa as Ex. PW2/B which Ct. Hawa Singh took to PS, got the case FIR registered and came at the spot along with copy of FIR and ruqqa. He deposed that he prepared the site plan already Ex. PW2/C and arrested the accused vide arrest memo already Ex. PW2/D. He deposed that accused's personal search was carried out vide personal search memo already Ex. PW2/E. Accused was released on bail and case property was depositing in the Malkhanna.
This witness duly identified the case property when the same was produced in the court by the MHC (M) as colly. Ex. P-1.
8 During his cross examination he admitted that the spot was busy public place and many public persons were present nearby. He further admitted that there were other Rehries nearby. He stated that people do not want to indulge in the matter pertaining to court/Kachhari. He further stated that he did not take any steps against the persons who refused to join the investigation and he did not notice any persons at the site who could be made witness. He stated that he received the information at around 6:30 p.m. and at FIR No. 788/05 6/15 that time Ct. Hawa Singh was with me. He stated that the spot was around 250/300 feet from where the informer met him . He stated that he had made the enquries from the accused regarding the obscene books and he told me that he was selling the books in question to earn more profit. He stated that he reached the spot within 10 minutes on information on my feet. He denied the suggestion that no obscene books were recovered from the accused or that they were planted upon him. He denied the suggestion that accused was not present at the spot and he was arrested after calling from his house at the PS itself. He denied the suggestion that accused was not selling obscene books or that he instead works at a factory. He denied the suggestion that due to some quarrel in the neighborhood where the accused resided he was falsely implicated in this case. He stated that no purchaser was present at the time when the books were recovered from the possession of the accused. He denied the suggestion that he was deposing falsely.
9 The accused also examined two witnesses in his defence. They are discussed hereunder as DW1 and DW2.
10 DW 1 Brijnandan Pandey deposed that he knew the accused as he belonged to his village and had certain business dealings with him. He deposed that the accused had to re-pay the amount taken by him on loan from him however, when he asked for the same accused refused to pay and accordingly, he gave an FIR No. 788/05 7/15 application for the same in the PS. He deposed that both of them were called at the PS, certain queries were made from him and he was asked to go from the PS. 11 During his cross examination he stated that he was not a summoned witness and I came to depose on the request of the accused. He stated that he does not have any copy of the complaint which he made in the PS as stated above. He stated that he does not know about the present case. He denied the suggestion that the accused was found in possession of certain obscene books. He voluntarily stated he works at Mahipal Pur and he has been falsely implicated in this case. He stated that he does not know why he has been implicated in this case.
12 DW 2 Subodh Kumar (accused) deposed that he works in a factory at Mahipal Pur and he had some quarrel with his uncle. He deposed that the day on which this case was framed against him he had quarreled with his uncle regarding the payment of loan which he had taken from him. He deposed that he was not in a position to re- pay the loan and his uncle made a complaint to the police. He deposed that police official called him to PS Nangloi and asked him to sign certain blank papers. He deposed that his uncle was also present there and he was allowed to go after sometime and in the evening he was implicated in this false case. He deposed that nothing FIR No. 788/05 8/15 was recovered from him and he was innocent. He deposed that he was not carrying on the business of selling obscene books.
13 During his cross examination by the Ld. APP he stated that the name of his uncle was Brij Nandan Pandey. He stated that he was not his real uncle. He stated that there was no written document regarding any monetary transaction/loan transaction between him and his uncle. He stated that he cannot tell the exact address of the factory however, it is at Mahipal Pur. He stated that he was working in the said factory for the last 6-7 years. He stated that there are about 40/50 persons working at the said factory and it is a motor automobile factory. He stated that he does not have any ESIC/EPF card as documentary proof. He stated that he does not have any salary slip or appointment letter or any other document to prove that he works at that place. He further stated that his uncle referred the matter regarding payment to the police and police kept him for half an hour. He stated that he did not make any complaint to any authority regarding police/his uncle illegally asking for money and pressurizing him for same. He stated that he does not have any witness regarding quarrel with his uncle. He denied the suggestion that he was not working at the aforesaid factory and therefore, he does not have any documentary proof regarding the same. He denied the suggestion that he has no quarrel with his uncle regarding any loan/monetary transaction or that he has taken a false plea to hide his mistake and therefore, he does not have any documentary proof regarding the FIR No. 788/05 9/15 loan/transaction. He denied the suggestion that he was deposing falsely.
14. I have heard the arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
15. In order to prove its case and establish the guilt of the accused the prosecution has to prove that on 07.08.2005 accused Subodh Kumar was found in possession of certain obscene books which he intended to sell/let on hire thus thereby committing offence punishable u/s 292 IPC.
16. After going through the material on record and giving my thoughtful consideration to the rival contentions raised at bar I am of the opinion that the prosecution has been able to bring home the guilt against the accused.
17. It stands proved from the deposition of PW2 and PW3 that the accused was indeed found in possession of four obscene books as discussed above.
18 PW2 Ct. Hawa Singh who is main recovery witness proved that on 07.08.2005 while he was on patrolling duty and present at FIR No. 788/05 10/15 near Peeragarhi Red Light, he received a secret information that the accused was selling certain obscene books/material. He proved that on receipt of said information he went there and found that the accused was trying to sell certain books/material which contained obscene photograph/material. He proved that IO who was along with him seized the said material/books and sealed them with the seal of DS and prepared the ruqqa i.e. Ex. PW2/B which he took to PS and got the case FIR registered.
19 He proved that obscene books/material was seized vide seizure memo Ex. PW2/A and after preparing the site plan Ex. PW2/C, the accused was arrested vide Ex. PW2/E. 20 The seized material duly sealed with the seal of DS and containing the case particulars was identified by this witness as Ex. P-1.
21 Deposition of this witness was duly corroborated by the IO who proved the arrest of the accused and the seizure of the obscene material from accused in a manner as proved by PW2 Ct. Hawa Singh.
22 FIR was proved by PW1 HC Baljeet Singh as Ex. PW1/A. 23 The prosecution story is absolutely consistent/flawless FIR No. 788/05 11/15 regarding the arrest of the accused, seizure of the offending material as well as its deposit in the Malkhanna on 07.08.2005.
24 During the course of arguments, Ld. Defence counsel vehemently argued that prosecution has failed to prove its case against the accused as firstly, no public person was joined in the investigation by the IO and the prosecution is relying upon the testimony of police officials only to prove its case. Non-joining of public witness shows that no such incident have ever occurred. It was also argued that the alleged books firstly, were never recovered from the accused but still as claimed by the PWs the books were kept hidden and hence, the case does not fall within the purview of section 292 IPC.
25 However, I do not agree with either contention of Ld. Defence counsel.
26 I have no reasons to disbelieve the prosecution witnesses, no motive has been proved by the Ld. Defence counsel for false implication of accused Subodh. There is nothing on record to show that the investigating officer or the recovery witness was inimical to the accused. Even the cross examination by the Ld. Defence counsel failed to impeach the credit of recovery witness PW2 and PW3.
FIR No. 788/05 12/1527. It is well settled principle of law that it is the quality of evidence that matters and not the quantity/number of witnesses. Section 134 of the Indian Evidence Act does not require any minimum number of wit- nesses to be examined for proving a particular fact ( Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krish- na Mochi and others Vs. State of Bihar, (2002) 6SCC 81). Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation. The Court has also held that civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696).
28 There is no requirement of law that everyone who has wit- nessed the occurrence, whatever there number be, must be exam- ined as a witness. (Amar Singh V. Balwinder Singh (SC) 2003 (1) RCR Criminal 701). In Jawahar v. State, (Delhi) 2007(4) R.C.R. (Criminal) 336 it was further observed that (1) It is very hard these days to get association of public witnesses in criminal investigation and (2) Normally, nobody from public is prepared to suffer any incon- venience for the sake of society.
29. Further more, there is no rule of law that police official/official FIR No. 788/05 13/15 witnesses ought not to be believed/relied upon. Police official/official witnesses do not suffer from any disability to give evidence and their official capacity by itself does not create any doubt about their credit worthiness. They cannot be presumed to be less or more reliable then any other normal public witness. Reliance may be placed upon Izzazul V. State (Delhi) 2007 (4) RCR Criminal 315, Kala Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 1948 and Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336.
30 Though, the accused examined his uncle in his defence howev- er, the said witness failed to inspire any confidence. I am not inclined to believe his story in the given facts and circumstances of the case as neither any document could be proved by him or the accused to show that they had any monetary transaction nor DW1 could prove any complaint which he allegedly made to the police. Even the ac- cused failed to prove that at the time of incident he was employed somewhere else and his claims of being falsely implicated by his un- cle seems to be mere after thought.
31 I had gone through the seized material which was proved as Ex. P-1 collectively during the deposition of PW2 and PW3 and have judged the same in light of law laid down by the Apex Court in case titled as "Ranjit D Udeshi v. State of Maharastra 1965 (SC) 881 as well as Abdul Rashid V. State of Kerala (Kerala) 2009 (1) RCR Criminal 135.". The seized material squarely falls under the FIR No. 788/05 14/15 category of obscene material as the material is lascivious and ap- peals to prurient interest and it has an affect to deprave and corrupt the person who may read or see it.
32 Further it is clear from the deposition of PW2 and PW3 that the books were in the possession of the accused and they were visible to the public at large who were also feeling offended with the contents of the books.
33 Thus, in view of my above discussion, the prosecution has been able to prove the guilt against the accused beyond the shadow of doubt. Accordingly the accused is held guilty and convicted of charges in the present case.
34 A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
Announced in the open Court on 25.11.2010 (Gaurav Rao) MM (West)/Delhi.
FIR No. 788/05 15/15 FIR No. 788/05PS Nangloi 25.11.2010 Pr: Ld APP for the state.
Accused present on bail along with counsel.
Final arguments heard.
Vide my separate judgment announced today in Open Court the accused has been held guilty under section 292 IPC.
Matter be now listed for arguments on the point of sentence on 27.11.2010.
(Gaurav Rao) MM (West)/Delhi.
25.11.2010.
FIR No. 788/05 16/15 FIR No. 788/05 17/15IN THE COURT OF GAURAV RAO:
METROPOLITAN MAGISTRATE: WEST: DELHI In Re: STATE V/s SUBODH F.I.R. No.: 788/05 U/s 292 IPC P.S. Nangloi ORDER ON SENTENCE 29.11.2010 Present: Ld. APP for the State.
Convict Subodh is present on bail along with his counsel.
Vide judgment announced on 25.11.2010 accused Subodh has been convicted u/s 292 IPC.
The learned defence counsel submitted that convict has been facing trial for the last more than 5 years and the same itself has been enough punishment for him. It was submitted that the convict has a large family including two small children and a widow mother to look after and he is sole bread earner in the family. It was also prayed the accused be given benefit of section 360 Cr.p.c. i.e to release the accused on probation of good conduct.
Per contra, learned APP has very vehemently argued that the act of the accused is unpardonable. It was submitted that the obscene material which was recovered from the accused had a tendency to deprave and corrupt those minds which are open to such FIR No. 788/05 18/15 immoral influences as well as generate repulsive feeling among the public at large. It was submitted that the accused deserves no leniency least to release him on probation.
After giving my thoughtful to the submissions made at bar I am of the considered opinion that taking into account the long drawn trial as well as the age of the accused, the fact that he is extremely poor as is evident from his appearance and he is the sole bread earner of a large family it shall meet the ends of justice if the accused is sentenced to undergo 6 months RI along with fine of Rs. 2000 for offence u/s 292 IPC in default of payment of fine SI for 20 days.
Benefit of probation is not given to the accused as the offence he has been held guilty of is a serious one.
I order accordingly.
At this stage, an application u/s 389 Cr.P.C. has been moved by the accused for suspension of sentence. As the accused was on bail during trial he is admitted to bail on furnishing bail bond in the sum of Rs. 10,000/- with one surety of the like amount for 30 days. Bail bonds furnished considered and accepted.
A copy of this order be given to the convict free of cost. File be consigned to Record Room.
Announced in the open court (Gaurav Rao) on 29.11.2010 MM(W) Delhi FIR No. 788/05 19/15 FIR No. 788/05 20/15