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4. After hearing learned counsel for the parties and on the basis of material available on record, the learned trial Court by the impugned judgment has convicted and sentenced the appellant as mentioned in paragraph-1 of this judgment. However, as prosecutrix (PW-1), her father Sevlaram Rathore (PW-2) and mother Deepavati Rathore (PW-3) have turned hostile, so the appellant was acquitted of the charge under Section 376 of the IPC.

5. Learned counsel for the appellant would submit that as seizure memo (Ex.-P/9) was prepared in the year 2002 and the Information Technology Act, which is a special legislation, came into force on 7th October, 2000, and the punishment for publishing or transmitting obscene material in electronic form has been provided under Section 67 and 67-A of the Information Technology Act, 2000, therefore, conviction could be imposed under Sections 67 & 67-A of the said Act and not under Sections 292 and 293 of the IPC. He would place reliance on the judgment in the matter of Sharat Babu Digumarti Vs. Government (NCT of Delhi) {(2017) 2 SCC 18} wherein the Hon'ble Supreme Court has considered the overriding effect of the Information Technology Act, 2000 as mentioned in Section 81 of the said Act. He would further submit that the materials which were seized vide Ex.-P/9 were not seized on the spot by the police and, therefore, the possibility of mixing/adding the seized articles cannot be ruled out. He would further submit that there is no sufficient material to demonstrate that the contents were obscene in nature. It was also submitted that mere possession of obscene cassettes cannot by itself attract the offence punishable under Section 292 of the IPC, unless the possession was not found for the purpose enumerated under sub-section (2) of Section 292 of the IPC i.e. for sell, lets to hire, distributes or publicly exhibits or in any manner puts into circulation. So the purpose of lending out has not been proved. He would further submit that only Ram Kumar Kashyap (PW-5) and Basant Lal Poyam (PW-6) have been examined by the prosecution and other independent witnesses namely, RM Sahu, MR Nag and KK Kuldeep were not examined, and the witnesses, who have been examined, were having adverse interest against the appellant. So, the prosecution has not proved its case, therefore, learned counsel prays to allow the Appeal and acquit the appellant of the aforesaid charges.

6. Per contra, learned State Counsel would support the impugned judgment of the trial Court on submission that the trial Court has properly appreciated the evidence and has rightly held guilty under Sections 292 and 293 of the IPC. The impugned judgment is well merited and does not call for any interference.

7. I have heard learned counsel for the parties at length and perused the record with utmost circumspection.

8. To prove the offence under Section 292 of the IPC, the prosecution has to establish that the object which is lascivious or appeals to the prurient interest or if its effect of anyone of its items, is, if taken as a whole so as to tend to deprave and corrupt person, who may read, see or hear the matter contained or embodied therein and then evidence has also to be led to prove that such obscene material or object was sold, let on hire, distributed, publicly exhibited in any manner or put into circulation, produced or possessed by the accused. So it is essential that the accused did any of the acts mentioned in clause (a) to (e) of sub-section (2) of Section 292 of the IPC.

11. The Hon'ble Supreme Court in the matter of Sharat Babu (Supra) has settled the law that the activities emanating from electronic form which may be obscene is exclusively punishable under Section 67 of the Information Technology Act, 2000 and not under Section 292 of the IPC, nor both under Section 67 of the IT Act and Section 292 of the IPC. The relevant paragraphs are reproduced hereunder:-

"30. In this regard, we may reproduce Section 81 of the IT Act, which is as follows:-
37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC."