Delhi District Court
State vs Sunil Kumar on 23 January, 2013
IN THE COURT OF SH. MUNEESH GARG
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
FIR No. 400/05
U/s 292 IPC
State versus Sunil Kumar
PS Farsh Bazar
JUDGMENT
a. Unique ID Number of the case : 02402R0193092006 b. Sl. No. of the case : 327/2 c. Date of commission of offence : 13.12.05 d. Date of institution : 20.12.2008 e. Name of complainant : HC Jag Sharan Singh f. Name & address of accused person : Sunil Kumar S/o Sh. Ram R/o D-324, New Sanjay Amar Colony, Anand Vihar, Delhi.
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 : 23.01.2013 BRIEF STATEMENT OF REASONS FOR DECISION
01. Briefly stated the version of the prosecution is that on 13.12.05 at about 09:15 pm at Ration Daftar Road, Near Jain Mandir, Bhola Nath Nagar, Delhi within the jurisdiction of PS Farsh Bazar, accused Sunil was FIR No. 400/05 Page No. 1/11 found in possession of two CDs 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 10.10.06, 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 and examined three witnesses.
05. PW 1 ASI Astham Ali proved the registration of FIR Ex. PW 1/A on the day of incident.
06. PW 2 Constable (Kushal Pal) is a recovery witness who deposed that on 13.12.2005, he alongwith Constable Jagsharam was on patrolling duty. On the information of secret informer, at about 09:15 p.m., they apprehended the accused and on his formal search, two CDs were recovered from pocket of his pant. On interrogation, they came to know the name of the accused as Sunil and then they went to the shop namely Aggarwal Electronics to check the contents of said CDs, and on checking they found FIR No. 400/05 Page No. 2/11 both the two CDs were containing pornographic contents. IO put both the CDs in a cloth pullanda and sealed with the seal of KCU and seized vide seizure memo Ex. 2/A. Seal after use was handed over to him. Thereafter, IO prepared rukka and handed over the same to him. He went to PS and got registered the FIR and came back at the spot alongwith the copy of FIR and rukka and handed over the same to IO. Accused was arrested vide arrest memo Ex. PW-2/B and personally searched vide memo Ex. PW 2/C. IO recorded his statement. Case property was deposited in the malkhana. PW 2 identified the accused in the Court and case property Ex. P1 & P2 collectively in the court.
07. PW-3 (HC Jagsharan) is the Investigating Officer of the case who deposed that he alongwith Constable Kushal Pal was on patrolling duty in the area of PS and on the information of secret informer, they apprehended the accused and on his formal search, two CDs were recovered from pocket of his pant. On interrogation, they came to know the name of the accused as Sunil and then they went to the shop namely Aggarwal Electronics to check the contents of said CDs, and on checking they found both the two CDs were containing pornographic contents. He put both the CDs in a cloth pullanda and sealed with the seal of KCU and seized vide seizure memo Ex. 2/A. Seal after use was handed over to Ct. Kushal Pal. Thereafter, he prepared rukka Ex. PW-3/A and handed over the same to Constable Kushal Pal who went to PS and got registered the FIR and came back at the spot alongwith the copy of FIR and rukka and handed over the same to IO. He prepared site plan Ex. PW-3/B. Accused was arrested vide arrest memo Ex. PW-2/B and personally searched vide memo Ex. PW 2/C. He recorded the FIR No. 400/05 Page No. 3/11 statement of Ct. Kushal Pal. Case property was deposited in the malkhana. PW 3 identified the accused in the Court and case property Ex. P1 & P2 collectively 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.
09. 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 to prove that the contents of the seized CDs 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 the fact that the contents of the CDs are obscene. Further, no investigation was carried by the IO with respect to the fact that alleged FIR No. 400/05 Page No. 4/11 recovered CDs were carrying by the accused for the purpose of selling, distributing or in any manner puts into circulation. 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 2 and PW 3 were on patrolling duty in the area of police station and apprehended the accused alongwith alleged recovered 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.
For 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.
FIR No. 400/05 Page No. 5/11In 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 2 and PW-3 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 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 FIR No. 400/05 Page No. 6/11 on the part of the prosecution.
12. IO has also not made any public witnesses of the recovery of the alleged CDs despite the fact that alleged spot was a public place. In this regard, the explanation of the prosecution witnesses was that none of the public persons agreed to join the investigation. IO PW 3 deposed that he asked 4-5 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. IO (PW-3) deposed in his testimony that they went to shop namely Aggarwal Electronics to check the said CDs and on checking they found that both the CDs were containing pornographic content. However, IO has not joined the owner of Ajay Electronics as witness. Therefore, the explanation given by the prosecution witness does not seem plausible because in the 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 FIR No. 400/05 Page No. 7/11 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.
In a case law reported 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."
FIR No. 400/05 Page No. 8/1113. 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 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 FIR No. 400/05 Page No. 9/11 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 investigation or a shoddy investigation but in either case, the benefit should go to the accused.
15. 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 23.01.13 METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS,
DELHI
FIR No. 400/05 Page No. 10/11
FIR No. 400/05
U/s 292 IPC
State versus Sunil Kumar
PS Farsh Bazar
23.01.2013
Present: Ld. APP for the State.
Accused on bail with counsel.
Final arguments heard.
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/23.01.13 FIR No. 400/05 Page No. 11/11