Delhi District Court
State vs . Suresh Sharma on 20 April, 2015
IN THE COURT OF SH. RAKESH KUMAR RAMPURI
METROPOLITAN MAGISTRATE-08
(CENTRAL) : DELHI
State Vs. Suresh Sharma
FIR No. :184/2006
PS : Hauz Qazi
U/s. 292 IPC
Date of institution: 07/11/2006
Judgment Reserved on: 15/04/2015
Date of Judgment: 20/04/2015
JUDGMENT
Unique I.D No. 02401R1068352006
1. Serial No. of the case : 419/2
2. Name of the Complainant : SI Ranbir Singh
3. Date of incident : 29.05.2006
4. Name of accused person : Suresh Sharma, S/o Late Sh. Satya Narayan Sharma, R/o 2687, Gali Aarya Samaj, Sita Ram Bazar, Hauz Qazi, Delhi.
5. Offence complained of or proved : U/s: 292 IPC
6. Plea of accused : Pleaded not guilty
7. Final Order : Acquitted
8. Date of such Order : 20.04.2015 BRIEF REASONS FOR SUCH DECISION:
1. On 29.05.2006, SI Ranbir Singh, Ct. Naresh Kumar, Ct. Rakesh and FIR No. 184/2006 No. 1 of 6 Ct. Narender were on patrolling duty at about 06.30 PM near Hamdard Chowk, Asaf Alli Road and they received a separate information as to person namely Suresh Sharma (accused) was selling blue films after recording the same. SI Ranbir Singh took said police officials and informer to the given place and directed Ct. Naresh to come in the civil uniform. SI Ranbir Singh allegedly handed over Rs 100/- vide memo Ex PW2/A to Ct. Naresh who went to the informed place and after returning at about 07.00 PM he informed SI Ranbir Singh that he had purchased 4 CDs at Rs 25/- each. Obscene pictures were pasted on the cover of CDs packs. Pulanda of said CDs was prepared and sealed the same with seal the of RSA vide seizure memo PW2/B. Thereafter, said police officials had gone to the house of accused, as per information of Ct. Naresh and on formal search of accused, one currency of Rs 100/- was recovered which was handover by SI Ranbir to Ct.
Naresh. SI Ranbir Singh had conducted search of the room and found one CD writer make Sony which was kept on the table and same was used by the accused for preparing blue film CD after copying the same. SI Ranbir Singh allegedly found 550 obscene VCDs in black colour bag in the room of accused and all the CDs contain obscene picture on it. 340 blank CDs were also recovered from the accused. On the basis of rukka received from Ct. Naresh Kumar, DO HC Hawa Singh had reocrded FIR bearing No. 184/2006 FIR No. 184/2006 No. 2 of 6 at PS Hauz Qazi. After investigation challan had been filed and accused had been charged by the court for committing offence u/s 292 of IPC. The prosecution has examined 5 witnesses to prove its case against accused. Statement of accused u/s 313 r/w 281 CrPC also recorded wherein he had denied the claim of prosecution and raised plea of false implication by the police and at the instance of shop owner. Accused preferred not to lead any evidence in his defence. Ld defence counsel and Ld APP for the State had made detailed oral final arguments on behalf of respective parties.
2. I have gone through the testimonies of prosecution witnesses and material on reocrd. I have also given due consideration to respective submissions of both parties. Now, question is whether investigation of the case had been conducted scientifically and in-accordance with the mandates of CrPC and whether the prosecution had proved its allegation against accused beyond all shades of reasonable doubts by leading reliable and cogent evidence.
3. Having gone through material on the record of the case and after considering rival submissions of both parties, I am of considered view that accused Suresh Sharma is required to be acquitted and the reasons FIR No. 184/2006 No. 3 of 6 supporting said view are as follows:
i) The prosecution failed to produce any independent public eye witness who could have joined the investigation and testify alleged recovery of contraband CD despite spot of recovery being thickly populated residential area. It is admitted that police did not issue any notice to any public person who had allegedly refused to join investigation despite alleged request of the police officials to join its proceedings. PW-2 SI Ranbir Singh admitted in his cross examination that mother, father of accused were also present at the time of raid but none had allegedly agreed to join the proceedings. It casts doubts over integrity of the investigation of the case. Ld. defence counsel contented that police had planted alleged obscene CD on the accused who is poor labour.
ii) It is noteworthy that in furdmakburgi Ex PW2/B and fard Baramadgi note Ex PW2/C bear name of FIR 186/06, although, search documents are supposed to have been prepared at the spot before registration of FIR. Ld defence counsel submitted that the police had created documents at police station as a result of after thought action to implicate accused in question.
iii) I.O had failed to explained as to why, owner of shop or place FIR No. 184/2006 No. 4 of 6 where alleged CD had been found, was not subjected to any investigation. It is noticeable that PW-2 SI Ranbir Singh admitted in his cross examination that he did not remember of name of occupier of House No 2688. It shows that I.O had not conducted through investigation of the case and the accused had been tried to be trapped by decoy customer who was his fellow police official.
iv) As per section 100 (4) of CrPC the police official was to call upon two or more respectable inhabitants of the locality to witness the search. Here, it is also mandated u/s 100(4) of CrPC that if no such inhabitants of locality available or is willing to be a witness to search, order in writing to them to attend and witness the search may be issued.
Here, no notice has been admittedly issued by the police to the public person who had allegedly refused to join the investigation . Ld defence counsel further submitted that police had also not complied with the provision 165 of CrPC which governs the course of search in course of investigation. It is further noteworthy that as per section 4 of CrPC all offences under IPC shall be investigated in accordance to the provisions here in after contained. In view of non compliance of said vital provisions of CrPC dealing search proceedings, the seizure of contraband material can not be made sole basis of conviction of accused.
FIR No. 184/2006 No. 5 of 6
v) The court is also mindful of basic tenant of criminal jurisprudence as to benefit of any reasonable doubt must go in favour of accused and if two version of the case is reasonably possible, the version favouring the innocence of accused has to be opted by the court. Resultantly, accused in this case stands acquitted.
The bail bond already furnished by the accused is accepted further for the purpose of Section 437-A Cr.PC at the request of the accused. This bond shall remain in force for a period of six months.
File be consigned to Record Room.
Announced in Open Court (Rakesh Kumar Rampuri)
today on 20/04/2015 Metropolitan Magistrate-08
Central/Delhi.
FIR No. 184/2006 No. 6 of 6