Delhi District Court
State vs . Khem Chand on 10 July, 2023
1
IN THE COURT OF SHRI YASHDEEP CHAHAL
Metropolitan Magistrate01 : New Delhi District : PHC : New Delhi.
FIR No.241/2016
P.S. : Connaught Place
Under Section : 292 IPC
State Vs. Khem Chand
JUDGMENT
ID number of the case : New No.59912/2016
DLND020224432016
Date of commission of offence : 11.09.2016.
Date of institution of the case : 10.11.2016.
Name of the complainant : Assistant Sub Inspector Jai Pal Singh,
No. 1534/ND, Posted at Police
Station Connaught Place, New Delhi.
Name of accused and address : Khem Chand, S/o Shri Krishan,
R/o A276, Metro Vihar, Holambi
Village, Delhi.
Offence Complained of : Under Section : 292 of the
Or Proved Indian Penal Code, 1860.
Offence charged of : Under Section : 292 of the
Indian Penal Code, 1860.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date of judgment : 10.07.2023.
BRIEF STATEMENT OF FACTS FOR THE DECISION:
FIR No.241/2016 State Vs. Khem Chand Page No. 1
2
1. By this judgment, this Court shall decide/disposeof case of the prosecution filed against accused, namely, Khem Chand, for having committed the offence punishable under Section 292 of the Indian Penal Code, 1860 (hereinafter referred as "IPC").
2. It is the case of the prosecution that on 11.09.2016 at 6:35 p.m., during patrolling duty complainant Assistant SubInspector Jaipal Singh reached in front of Gate No. 6, Metro Station, Palika Bazar, Connaught Place, where he met Head Constable Shehzad on picket duty. In the meantime, one secret informer informed that sex toys are being sold in Shop No. A15, Palika Bazar and if raided, the accused could be apprehended. Information in this regard was given to SHO at Police Station Connaught Place, who in turn ordered to take immediate action. Thereafter, ASI Jai Pal Singh asked 57 passerby to join the raiding party but they all refused and left on one pretext or the other. Due to paucity of time, no notice could be served upon them. Thereafter, ASI Jai Pal Singh handed over one currency note of Rs.500/ bearing No. 0AC957758 to Head Constable Shahzad impersonating him as decoy customer to bargain and purchase sex toys with direction to indicate by raising right hand on his head. In the meantime, secret informer left the spot. Thereafter, Head Constable Shahzad visited Shop No. A15, Palika Bazar as decoy customer and bargained/purchased sex toys from there by making payment through currency note of Rs.500/ bearing No. 0AC FIR No.241/2016 State Vs. Khem Chand Page No. 2 3 957758 and at about 07:10 p.m. raised his right hand over his head. On receiving indication, ASI Jai Pal Singh reached at Shop No. A15 where Head Constable Shahzad indicated towards one person (accused Khem Chand) and produced one sex toy from one black colour polythene and told that accused has sold him sex toy in lieu of Rs.500/. Thereafter, ASI Jai Pal Singh again asked 45 passerby to join the investigation but they all left the spot on one pretext or the other. Upon search of accused, one currency note of Rs.500/ bearing No. 0AC957758 was recovered from his wearing shirt. Upon checking counter of the shop, one orange colour sex toy and one purple colour male organ type sex toy with transparent glass/plastic with battery insertion facility from back side, were also recovered. Meanwhile, Constable Vikas also reached at the spot.
3. All three sex toys were kept in the same black colour plastic polythene by making white clothh pulanda and sealed with the seal of K.S. Currency note of Rs.500/ bearing No. 0AC957758 was also kept in separate cloth pulanda and sealed with the seal of K.S. Seal after use was handed over to Constable Vikas. Since, the accused has committed an offence punishable under Section 292 of IPC, a complaint was made and subsequently, case FIR was got registered.
4. After completion of investigation, chargesheet under Section 292 of IPC was filed in the Court concerned. Accused was summoned and FIR No.241/2016 State Vs. Khem Chand Page No. 3 4 requisite documents were supplied to him in compliance of Section 207 of Cr. P.C.
5. Thereafter, charge under Section 292 of the Indian Penal Code, 1860 was framed against the accused on 21.01.2017 to which he pleaded not guilty and claimed trial.
6. The trial was commenced and the matter proceeded to the stage of prosecution evidence. Prosecution examined following witnesses:
7. Head Constable Dinesh Kumar, No. 179/ND was examined as PW1. He deposed on oath that on 11.09.2016, he was posted as Duty Officer at Police Station Connaught Place. On that day, at about 10:50 p.m., he received a rukka through Constable Vikas and on the basis of which he registered FIR in the present case, copy of which is Ex. PW 1/A (OSR). Subsequently, he made endorsement on the rukka Ex. PW 1/B.
8. PW1 Head Constable Dinesh Kumar was not cross examined despite opportunity.
FIR No.241/2016 State Vs. Khem Chand Page No. 4 59. Constable Vikas Balyan, No. 2581/ND was examined as PW2. He deposed on oath that on 11.09.2016, he was posted as Constable in Police Station Connaught Place. On that day, he along with Head Constable Shahzad was on picket duty at Gate No. 6, Palika Bazar Metro Station. At about 6:35 p.m., ASI Jaipal was also on patrolling duty in the area where secret informer informed him that a person was selling gents sex toys at Shop No. A15, Palika Bazar, Connaught Place and if raided accused could be apprehended. Thereafter, I.O. informed them about the secret information and asked 57 public persons to join the investigation but they all refused and left the place without disclosing their names and addresses. Thereafter, I.O. made Head Constable Shahzad as a decoy witness/customer and handed over him a currency note of Rs.500/ with instructions to go to the shopkeeper and handover currency note to the shopkeeper and after the deal to give signal by placing his hand on his head. Thereafter, they all went to Shop No. A15. They stopped at a little distance from the shop and Head Constable Shahzad approached the shop No. A15 as per directions of the I.O. Thereafter, at about 07:00 p.m. Head Constable signaled them by placing his hand. Thereafter, he along with I.O. went to the shop and overpowered the accused. He also correctly identified the accused in the Court. He further deposed that Head Constable Shahzad handed over one black polythene to the I.O. which was containing one gents sex toy and also told that he has handed over the currency note of Rs.500/ to the FIR No.241/2016 State Vs. Khem Chand Page No. 5 6 accused for purchasing the sex toys. Upon search, the said currency note was recovered from the upper pocket of the accused. The name of accused was revealed as Khem Chand. On checking counter of the shop, two more sex toys were recovered. Thereafter, 45 public persons were again asked to join the investigation but they refused and left the place without disclosing their names and addresses. Thereafter, all the sex toys were seized by the I.O. vide seizure memo Ex. PW2/A. Thereafter, the currency note was seized vide memo Ex. PW2/B. The seizure memos were duly sealed with the seal of K.S. and seal after use was handed over to him. Thereafter, I.O. prepared a rukka and handed over the same to him for registration of FIR. After registration of FIR, he came back at the spot and handed over copy of FIR and original tehrir to I.O. Thereafter, accused was arrested and personally searched vide memos Ex. PW2/C and Ex. PW2/D. His disclosure statement was recorded vide memo Ex. PW2/E. After that accused was released on bail and I.O. recorded his statement to that effect. PW2 correctly identified the case property as Ex. P1 and currency note as Ex. P2, which were recovered from the possession of accused and seized at the time of conducting raid.
10. During his crossexamination PW2 deposed that he was posted at P.S. Connaught Place since last two years approximately and at Beat No. 7 for last one and a half year. He remained at Beat No. 7 most of the time but sometimes it changed. He further deposed that at the time FIR No.241/2016 State Vs. Khem Chand Page No. 6 7 of alleged incident five police officials including him were posted at Beat No. 7. He further deposed that on the day of incident, he along with Head Constable Shahzad was on picket duty when I.O./ASI Jaipal reached there on foot at about 6:20 p.m. In the meantime, one secret informer reached there. Thereafter, ASI Jaipal Singh made a call to the concerned SHO on his mobile. He further deposed that after the secret informer arrived at the picket, they remained there till 2025 minutes. Thereafter, they went to the shop of the accused on foot and it took about 510 minutes to reach there. He along with ASI Jai Pal Singh stopped at a distance of about 15 metre from the shop. He affirmed that he along with ASI Jai Pal Singh was standing far away from the shop and he did not know about the conversation between accused and alleged customer. He further affirmed that they remained at the picket in Police Uniform and came to picket only after wearing the police uniform. He further deposed that accused was running a shop of electronics, belt, purse etc. at the time of incident. He denied the suggestion that no sex toy, as alleged, were being sold at the shop of the accused. He further denied the suggestion that alleged sex toys were planted upon the accused as accused declined the demand of bribe from local police. He affirmed that he did not make any entry in the roznamcha register at P.S. Connaught Place before making raid (Objected to by Ld. APP for State as the witness was already on picket duty so the question of recording of D.D. entry did not arise). He could not say whether I.O. had made departure entry before coming to FIR No.241/2016 State Vs. Khem Chand Page No. 7 8 shop of the accused. PW2 affirmed that no public witness was made by the I.O. He denied the suggestion that as no alleged incident took place, hence, no public witness was made by the I.O. He further denied the suggestion that the document Ex. PW2/A, Ex. PW2/B, Ex. PW2/C, Ex. PW2/D & Ex. PW2/E were not prepared at the spot and were prepared at the Police Station as per convenience of the I.O. He further denied the suggestion that he has deposed falsely.
11. Assistant SubInspector Jai Pal Singh, No. 1534/ND was examined as PW3. He deposed on oath that on 11.09.2016 at about 6:30 p.m. when he reached Gate No. 6 Metro Station, Connaught Place, Head Constable Shahzad and Constable Vikas, who were already present there on picket duty, met him. Meanwhile, a secret informer informed him that owner of Shop No. A15, Palika Bazar, New Delhi is selling sex toys and if raided, accused could be apprehended red handed. Thereafter, he gave the said information to SHO, P.S. Connaught Place, New Delhi telephonically, who in turn told him to adopt all possible procedure regarding the same. Thereafter, he requested the people, who were present there, to join the investigation but they denied to join the investigation. Thereafter, he constituted a raiding party with Head Constable Shahzad and Constable Vikas. Head Constable Shahzad was in civil dress. Thereafter, he gave Rs.500/ currency note bearing No. 0AC 957758 to Head Constable Shahzad to purchase the sex toy from the FIR No.241/2016 State Vs. Khem Chand Page No. 8 9 above said shop. He instructed Head Constable Shahzad to put his hand on his head after purchasing the sex toy. Thereafter, they went near the said shop and Head Constable Shahzad went to the said shop to deal with the shopkeeper for sex toy. Thereafter, at about 07:10 p.m., Head Constable Shahzad put his hand on his head and after receiving his indication, PW3 along with Constable Vikas reached the said shop where Head Constable Shahzad handed over him one black colour polythene containing one gents sex toy. Head Constable Shahzad told him that he had given Rs.500/ currency note, which PW3 had given him previously, to the shop keeper. Thereafter, PW3 along with Constable Vikas and Head Constable Shahzad apprehended the accused Khem Chand and searched him. Rs.500/ currency note was recovered from the pocket of his wearing shirt. Thereafter, PW3 seized the same vide seizure memo, already Ex. PW2/B, bearing his signature at point B. Thereafter, PW3 searched the counter of the said shop where two other sex toys were also found. Thereafter, he seized all three sex toys vide memo, already Ex. PW2/A, bearing his signature at point B. Thereafter, he sealed all three sex toys with the seal of 'K.S.' Thereafter, PW3 prepared a rukka, already Ex. PW1/B, bearing his signature at point B, and handed over the same to Constable Vikas for registration of FIR. Subsequently, PW3 prepared the site plan, Ex. PW3/A, bearing his signature at point A. After sometime constable Vikas returned back at the spot and handed over copy of FIR, already Ex. PW1/A, and original FIR No.241/2016 State Vs. Khem Chand Page No. 9 10 rukka to him. Thereafter, PW3 interrogated accused Khem Chand and arrested him vide memo, already Ex. PW2/C, bearing his signature at point B. Thereafter, PW3 personally searched accused Khem Chand vide personal search memo Ex. PW2/D, bearing his signature at point B, and recorded his disclosure statement, already Ex. PW2/B, bearing his signature at point B. Subsequently, PW3 recorded statement of Head Constable Shahzad and Constable Vikas under Section 161 Cr.PC. Since, the offence was bailable, accused Khem Chand was released on Police bail. Thereafter, PW3 deposited the case property in the Malkhana of P.S. Connaught Place and after completion of investigation filed the charge sheet in the Court. PW3 correctly identified accused Khem Chand in the Court.
12. During his crossexamination conducted on 28.11.2022, PW3 SubInspector Jai Pal Singh deposed that he was complainant in the present matter and he was not posted in the same beat where accused was apprehended. He further deposed that the spot is covered with market area and he had not noted down name of any shopkeeper besides the spot nor did he call any shopkeeper to join the investigation. He voluntarily deposed that due to paucity of time, no written notice was given. He further deposed that he was in uniform and information was received from a secret informer.
FIR No.241/2016 State Vs. Khem Chand Page No. 10 1113. PW3 SubInspector Jai Pal Singh denied the suggestion that the accused was not selling any such sex toys, as alleged or that the accused has been falsely implicated as monthly bribe was not paid. He further deposed that he had asked other persons nearby to join the investigation but they refused to join after telling their reasonable excuses, though he did not take any action against such persons. He further denied the suggestion that he has deposed falsely.
14. Head Constable Shahzad, No. 664/ND, was examined as PW4. He deposed on oath that on 11.09.2016, he along with constable Vikas was present at Metro Gate No. 6. Meanwhile, one secret informer met ASI Jai Pal Singh and informed him that sex organs toys are being sold at Shop No. A15, Palika Bazar and if raided the accused could be apprehended along with case property. The information was shared with SHO, P.S. Connaught Place by ASI Jai Pal Singh and on the instruction of SHO, a raiding party consisting of Head Constable Shahzad, I.O./ASI Jai Pal Singh and Constable Vikas was constituted. ASI Jai Pal Singh requested 45 public persons to join the raiding party but none came forward and left the spot without disclosing their names and addresses. Thereafter, as per instructions of ASI Jai Pal, he wore civil dress and a currency note of Rs.500/ bearing No. 0AC 957758 was handed over to him with instruction to visit Shop No. A15, where accused was found present in the shop. PW4 correctly identified accused Khem Chand in FIR No.241/2016 State Vs. Khem Chand Page No. 11 12 the Court. PW4 Head Constable Shahzad further deposed that he demanded sex organ toy and accused handed over one male sex organ toy to him and Head Constable Shahzad handed over above mentioned currency note of Rs.500/ to him. Thereafter, he signaled other staff by raising his right hand. Thereafter, ASI Jai Pal and Constable Vikas reached at the spot and accused Khem Chand was over powered by them and aforesaid currency note was recovered from his possession. Thereafter, a search was conducted and two male organs toys were recovered from the counter of said shop. He further deposed that all three male sex organs toys and currency note of Rs.500/ were seized by the I.O. vide seizure memo, already Ex. PW2/A & Ex. PW2/B, both bearing his signature at point C respectively. Thereafter, accused was arrested and personally searched vide memos, already Ex. PW2/C and Ex. PW2/D, both bearing his signatures at point C respectively. Thereafter, the accused was interrogated by the I.O. and his disclosure statement was recorded by the I.O. vide memo, already Ex.PW2/E, bearing his signature at point C. PW4 also correctly identified the case property, already Ex. P1 and Ex. P2.
15. During his crossexamination PW4 Head Constable Shahzad deposed that at the time of incident he was posted in Beat No. 7 along with two other police officials. However, he could not tell in which beat ASI Jai Pal Singh was posted at the relevant time but he was sure FIR No.241/2016 State Vs. Khem Chand Page No. 12 13 that ASI Jai Pal Singh was not posted in Beat No. 7 at that time. He further deposed that ASI Jai Pal Singh reached at the spot at about 6:30 p.m. by foot. PW4 could not tell whether I.O. had given any written information to P.S. Connaught Place in respect of raid at the shop of the accused. He further deposed that if any secret information is received at the spot, the same is informed to Duty Officer telephonically in the Police Station and if secret information is received in P.S. Connaught Place, a written information is given to the Duty Officer. PW4 could not tell exact number of people who went to the shop of accused. He further deposed that they reached at the shop of accused at around 07:15 p.m. He could not tell about the owners of shops adjacent to the shop of the accused. He further deposed that accused used to sell electronic items. He could not say if accused also used to sell belts and wallets. He did not remember under which name and style accused used to run his shop. He affirmed that Palika Bazar Market has many shops. He could not say whether adjacent shops to the shop of accused were opened or closed at that time. He also could not tell whether I.O. had recorded statements of nearby shop owners or not. He also could not tell the colour of clothes worn by the accused at the relevant time. He also could not tell whether the accused had worn TShirt or Shirt or Kurta at the relevant time. He further deposed that he used to keep his civil clothes at Palika Bazar Gate No. 3 and he changed the same there and then came back at Gate No. 6 and thereafter, they went to the shop of the accused. He further deposed FIR No.241/2016 State Vs. Khem Chand Page No. 13 14 that he has not stated to the I.O. in his statement under Section 161 Cr.PC that he used to keep his civil clothes at Gate No. 3, Palika Bazar, where he had changed his clothes. He voluntarily deposed that he had changed his clothes at Gate No. 3, Palika Bazar as per directions of the I.O. He further deposed that serial number of the currency note of Rs.500/ was OAC 957758. However, he could not tell the exact distance where ASI Jai Pal Singh along with Constable had stopped and PW4 proceeded towards the shop of the accused. PW4 could not tell as to how many persons were present in the shop of the accused at the time of alleged incident. He denied the suggestion that he never visited the shop of the accused along with I.O. during the raid. He further deposed that he knew the accused prior to the alleged incident. He further deposed that he and accused used to greet each other prior to incident. He further deposed that arrest memo of the accused was prepared at the spot and at that time apart from him, only two police persons were present there. However, he could not tell the names of the persons to whom the I.O. had requested to join the investigation. PW4 denied the suggestion that all the paper work was done by the I.O. while sitting in the Police Station. He further denied the suggestion that the alleged recovery was planted upon the accused. He further denied the suggestion that he has deposed falsely at the instance of I.O. He further denied the suggestion that the accused has been falsely implicated in this case or that he has deposed falsely.
FIR No.241/2016 State Vs. Khem Chand Page No. 14 1516. After recording of evidence of prosecution witnesses, P.E. was closed.
17. Thereafter, statement of accused was recorded under Section 281 read with Section 313 of Cr.PC wherein all the incriminating circumstances appearing in the evidence against the accused were put to him to which he replied that he has been falsely implicated in the present case. However, he did not lead any evidence in his defence.
18. Thereafter, the matter was fixed for final arguments. Final arguments were advanced by Ld. APP for State and Ld. Counsel for accused.
19. Ld. APP for the State submitted that all the witnesses have invariably supported the case of the prosecution and have succeeded in taking it to a logical end.
20. Per contra, it was submitted by Ld. Counsel for the accused that the story of the prosecution suffers from material inconsistencies and the case has not been proved beyond reasonable doubt.
21. The fundamental rule of criminal law postulates that the burden of proving the case rests on the shoulders of the prosecution. The FIR No.241/2016 State Vs. Khem Chand Page No. 15 16 case of the prosecution is that the accused was found to be selling male organ sex toys in open public display and thus, committed the offence of obscenity.
22. I may now appreciate the evidence on record so as to ascertain the guilt of the accused. The prosecution has examined four witnesses and notably, all of them are police witnesses. Before proceeding, I may reproduce Section 292 of IPC for ready reference.
23. Section 292 of the Indian Penal Code reads as under: [292. Sale, etc., of obscene books, etc.-- [(1) For the purposes of sub section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.] [(2) ] Whoever--
(a) sells, lets to hire, distributes, 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, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or FIR No.241/2016 State Vs. Khem Chand Page No. 16 17
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this section, shall be punished [on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees].
[(Exception) --This section does not extend to--
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure--
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in--
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.]]
24. I may briefly lay down the ingredients required for proving the offence under question. For bringing home the charge under Section 292 IPC, it is essential that -
(a) The object being put for sale must be obscene i.e. it should either be lascivious or must appeal to the prurient interest or the effect of such obscene object, taken as a whole, must be to deprave or corrupt any person;
FIR No.241/2016 State Vs. Khem Chand Page No. 17 18(b) Such object must be put for a sale or exhibited publicly, apart from other actions such as import, export, conveyance etc. of such object;
(c) The exception attached to Section 292 categorically indicates that the Section does not extend to any object the publication of which is justified on the grounds of public good or for any religious purpose.
25. Thus, the crucial consideration before the Court is to determine the legal meaning of the word obscenity. It may be noted that the meaning of obscenity has traversed through a series of divergent judicial views and has had a unique journey in criminal jurisprudence. One of the primary reasons for divergence on this concept is that it imposes a restriction on free expression which is enshrined as a fundamental right under Article 19 of the Constitution. Put otherwise, Section 292 creates a restriction on the fundamental right under Article
19. So far as Section 292 is concerned, Hon'ble Supreme Court of India in 'Ranjit D. Udeshi Vs. State of Maharashtra, 1965 (1) SCR 65, has expressed the meaning of obscenity in the following terms:
(i) That which depraves and corrupts those minds which are open to immoral influences;
(ii) That which suggests thoughts of most impure character;
(iii) That which is hardcore pornography; FIR No.241/2016 State Vs. Khem Chand Page No. 18 19 (iv) That which has a substantial tendency to corrupt by arousing lustful desires; (v) That which tends to arouse sexually impure thoughts; (vi) That which passes the permissive limits as judged by our community standards.
26. It is fairly understood that obscenity changes colours from society to society and from community to community. Even within the same community, obscenity may bear a different meaning in a different time frame. Thus, what could be considered as obscene today may not be considered as such after ten years from now. In India, we had first adopted the Hicklin Test which originated from the English case Regina Vs. Hicklin (1868), wherein obscenity was assessed from the standard of an individual who was open to immoral influences and who was likely to be corrupted by the material in question. The vulnerability of the individual is the central concern here. Notably, this test was adopted in Ranjit D. Udeshi (Supra). Thereafter, we came to the Miller Test which originated from a decision of the U.S. Supreme Court in Miller Vs. California (1973). As per this test, a work is to be considered obscene if an average person would find it corruptible or patently offensive in a sexual way. It was a shift from a vulnerable person to a reasonable person. Thereafter, in Aveek Sarkar Vs. State of West Bengal, 2014, the Hon'ble Supreme Court adopted the test of an average person for FIR No.241/2016 State Vs. Khem Chand Page No. 19 20 ascertaining obscenity by applying the prevailing community standards. Thus understood, obscenity is to be adjudged by looking at the effect of the offensive material on an average person by applying community standards. The Court need not concern itself with an extra sensitive person whose prurient interest may be aroused even by an otherwise non obscene content. To understand this, one may take the example of a medical book wherein naked pictures may be published for the purpose of learning and on the contrary, one may take the example of a calendar wherein naked pictures are published for the purpose of pornography or modeling. An average person cannot be expected to find the former as obscene and the same may be protected under the law. However, the same protection cannot be given to the latter which is published solely for appealing to the sexual interests of persons and which shall have the same effect as intended on an average person.
27. I may also briefly look at the nature of the offence under Section 292 IPC. The offence of obscenity is not only an offence based on morality, as generally understood. Rather, the offence of obscenity justifies the test of harm principle and cannot be said to be a harmless offence solely premised on morality. An act of obscenity based on hardcore pornography, for instance, is an ugly depiction of women in an objectified manner and the offence and its social implications must be understood in that light. Pornographic obscenity revolts against the entire FIR No.241/2016 State Vs. Khem Chand Page No. 20 21 feminist jurisprudence which is duly enshrined in the Constitution and which guarantees equal protection of law to women and men alike. Such obscenity creates a breeding ground for discrimination against women and may even have a cause and effect relationship with the offences against women.
28. It is the foremost requirement of criminal law that the prosecution must establish three essential attributes - actus reus, mens rea and causal link between the crime and the accused on trial.
29. The prosecution has examined four witnesses in this case. All the witnesses are police witnesses. There is no whisper about any public witness. The importance of public witnesses in such cases has been highlighted time and again by the Hon'ble High Court. In Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi had observed as under: "18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers 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".
FIR No.241/2016 State Vs. Khem Chand Page No. 21 2230. The legal position, as settled, is that as a matter of prudence, the investigating officers must look for independent witnesses to corroborate the factum of commission of offence.
31. However, the absence of any independent witnesses may not per se vitiate the entire case of the prosecution if the same can be duly explained. I may usefully refer to the decision of the Hon'ble Supreme Court in Tahir v. State (Delhi) (1996) 3 SCC 338 wherein the Court noted that although there is no rule of evidence that conviction cannot be based on the sole testimony of police officials, however, prudence demands a more careful scrutiny of the testimonies of police officials as they may be considered to be interested in the outcome of the case. The rule of prudence requiring independent witnesses is born out of this careful scrutiny and requires that in cases, when the timing of the offence and surrounding circumstances indicate that it was fairly possible for the investigating officer to procure independent witnesses, and he failed to do so nonetheless, the case of the prosecution would meet a reasonable doubt in the eyes of the law, and the benefit shall accrue to the accused.
32. During evidence, the specific question was put to the PWs regarding their failure to involve public witnesses. It has been deposed that various witnesses were approached, however, they refused to join the FIR No.241/2016 State Vs. Khem Chand Page No. 22 23 investigation. Although, the reason does not appear to be justified, however, whether the same could be used to demolish the entire case of the prosecution or not, has to be seen in the light of the overall evidence on record. In this case, PWs 2, 3 & 4 have consistently deposed that male organ sex toys were recovered from the counter which was in possession of accused and one of them was sold to decoy customer PW4 Head Constable Shahzad in lieu of one currency note of Rs.500/ bearing No. OAC 957758. Upon checking counter of the shop, one orange colour sex toy and one purple colour male organ type sex toy with transparent glass/plastic with battery insertion facility from back side, were also recovered. The seizure memo categorically lists the three sex toys recovered from the accused and bears the signature of the accused. In the entire evidence or even in his statement under Section313 Cr.P.C., the accused has never stated that the seizure memo did not bear his signature. There is not even a suggestion to the effect that he was forcibly made to sign on the seizure memo. In such circumstances, the seizure memo cannot be discarded.
33. The accused has been correctly identified by all the PWs. Even during crossexamination, not even a single question was put by the accused to raise a doubt on the recovery of male organ type sex toys. The PWs have given a consistent testimony in that regard and in the absence of any question (or even a suggestion) to impeach the recovery of male FIR No.241/2016 State Vs. Khem Chand Page No. 23 24 organ type sex toys, this Court has no reason to disbelieve and reject the consistent testimonies of the PWs. The only suggestion given by the accused in crossexamination is that the case property was planted by the PWs on the accused and the same has been categorically denied by all the PWs. Furthermore, in the absence of any question to impeach the credit of the PWs on this aspect, undue weight cannot be given to the said suggestion so as to discard the testimonies of the PWs. In the present case, the absence of public witnesses regarding the aspect of seizure can be understood as the case pertains to the seizure of male organ type sex toys and unconcerned public persons may not want to associate themselves with a case of this nature. Even there is no dispute on seizure of sex toys.
34. The male organ type sex toys were exhibited for public sale and the nature of product revolts against the sexual morality of an average person and had the potential of depraving an average person's sense of sexuality. On applying the community standards, exhibition of sexual organs in the form of sex toys, which are meant for sexual activities, falls within the definition of obscenity as defined under Section 292 of IPC, as the community has a legitimate interest in curbing public exhibition and display of such products. In a case of this nature, the Court is not expected to construe community standard from the perspective of its individual viewpoint, which may be a view inclined towards a more FIR No.241/2016 State Vs. Khem Chand Page No. 24 25 open and free society. The standard required is different and I have applied the test accordingly.
35. The underlying theme behind the law of evidence is the judicial satisfaction of the Court. There is no rigid rule of law that shuns the testimonies of police officials, however, the evidence on record must inspire confidence of the Court and inconsistencies must be explained to the satisfaction of the Court. On an overall view of the evidence, specifically in view of the questions asked during crossexamination of PWs, I find that the case of the prosecution is consistent and worthy of credit.
36. In view of the aforesaid discussion, I am of the considered view that the prosecution has successfully proved the guilt of the accused beyond reasonable doubt. Accordingly, the accused is convicted for the commission of offence under Section 292 IPC.
37. Let convict be heard on the point of sentence.
38. This judgment runs into 25 pages. Let a copy of the judgment be supplied to the convict free of cost, as per rules.
YASHDEEP Digitally signed by YASHDEEP
CHAHAL
CHAHAL Date: 2023.07.10 16:07:20 +0530
Announced in the Open Court (YASHDEEP CHAHAL)
On 10th July, 2023. M.M.01 : New Delhi District
Patiala House Courts
New Delhi.
FIR No.241/2016 State Vs. Khem Chand Page No. 25