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6. PW4 Ramesh, partner of M/s. Tips Cassettes & Records Co. is a formal witness, who proved original authority letter issued by his company in favour of Indian Phonographic Industries to protect the music work of M/s. Tips cassettes as Ex. PW4/A, which was signed by this witness as a partner. The witness also proved the agreement of the copyright regarding movie "Khuddaar" with the producer of the film as Ex. PW4/B1.

7. PW2 Naresh Kumar, PW3 Inspector Satyavir Singh, PW5 JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68­A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 4 of 22/K Satish Kapoor & PW6 Inspector Anil Kapoor are all recovery witnesses and it is deposed by the witnesses that on 25.2.1994, Satish Kapoor gave a complaint Ex. PW5/A which was marked to PW6 for investigation and on which a raiding party consisting of these witnesses alongwith Inspector D.B. Dutt, Ct. Rajesh, Ct. Kamal Singh and other police officials was organised and the premises no. BG-7/177, Paschim Vihar, New Delhi, was raided at 11.10 pm. In the premises, accused was present and total 1960 infringed audio cassettes of different titles, 200 blank cassettes, 2253 inlay cards of movies "Kabhi Haan Kabhi Naa, Elaan, Dilwale, Khuddar" were recovered. It is deposed that out of 1960 audio cassettes, 1110 cassettes were with inlay cards and remaining 850 were without inlay cards. Three recording units having capacity of 1 X 3 copies were also recovered. All these case property was kept in seven gunny bags and were sealed with the seal of AK which belonged to PW6 Inspector Anil Kapoor, who was the IO of this case. The case property was seized vide seizure memo Ex. PW2/A and thereafter ruqqa was prepared and the case was got registered through Constable and thereafter the accused was arrested vide arrest memo Ex. PW5/B. It is further deposed that the accused made a disclosure statement Ex. PW5/C upon which premises at 66B, Pandav Nagar, New Delhi, was also raided on that very night and from where 7900 infringed audio cassettes and 60000 infringed inlay cards were also recovered. This case property was kept in another 12 gunny bags and was sealed with the seal of AK and taken into police possession vide memo Ex. PW2/G. In the testimony of PW2 Naresh Kumar, the case property was produced who identified the case property as the same which was recovered from the possession of accused. All 19 gunny bags were produced in the Court on 05.9.2000, it is not mentioned that any of those gunny bags were without seal or torned gunny bags or there was any other problem with the case property JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68­A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 5 of 22/K produced, thereby meaning, that when the case property was first produced in the Court in the testimony of PW2, the gunny bags were intact with all intact seals. PW6 Inspector Anil Kapoor also deposed that during investigation, he seized various documents and on completion of investigation, he filed the chargesheet. The case property was proved in the testimony of witnesses as Ex. PW1 to P19. PW5 Satish Kapoor could not depose regarding recovery from the accused at Pandav Nagar premises upon which he was declared hostile by Ld. APP and he was cross examined, but in the cross examination, the witness recollected and deposed that on that very night from Pandav Nagar premises infringed audio cassettes and inlay cards which were total 7900 and 60000 respectively of different Hindi Movies were recovered and which were properly sealed by the IO and taken into police possession. PW2 Naresh Kumar, PW3 Inspector Satyavir Singh, PW5 Satish Kapoor & PW6 Inspector Anil Kapoor all categorically deposed about raiding the two premises of the accused and recovery of large quantity of infringed articles. These witnesses were subjected to cross examination by the accused but despite lengthy cross examination nothing material could be brought out on record from the cross examination of these witnesses in order to impeach the creditworthiness or trustworthiness of these witnesses. Although, in the cross examination, some minor discrepancies regarding the time when ruqqa was sent, the time when the Constable returned after registration of FIR, the time spent by the raiding time in completing the proceedings at two premises, the time when they finally left the spot were brought out, but all these contradictions are trivial in nature particularly in view of the fact that evidence of the witnesses in this case was recorded after more than six years after the recovery and even some of the witnesses were examined more than ten years after the incident. In such circumstances, no JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68­A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 6 of 22/K undue weightage can be given to these trivial contradictions. Whenever witnesses are examined in the Court after such long gap of time, minor discrepancies are bound to occur.

12. In AIR 1970 SUPREME COURT 1396 "Bai Radha v. State of Gujarat" The sole point which arose before Supreme court for decision was whether the trial became illegal by reason of the search not having been conducted strictly in accordance with the provisions of Section 15 of the Suppression of Im- moral Traffic in Women and Girls Act, 1956 which provision was akin to the present sec 15 of the Act . The facts need not be stated in detail. The appellant and two other persons were tried for various offences under the provisions of the Act, the charge substantially against her being that she was keeping a brothel in her house and knowingly lived on the earnings of the prostitution of women and girls. What was stressed great- ly by learned counsel for the appellant was that the Act being a special Act its provisions should have been strictly followed. It was pointed out that the panch witness was not an inhabitant of the locality in which the place to be searched was situate. Hon'ble S.C. held that, we are of the opinion that non-compliance with the di- rections contained in Section 15 (2) in the matter of search would only be an irregularity and not such an ille- JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68­A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 10 of 22/K gality which will vitiate the trial. In that sense it would be legitimate to say that a search which is to be conduct- ed under the Act much comply with the provisions con- tained in Section 15; but it cannot be held that if a search is not carried out strictly in accordance with the provisions of that section the trial is rendered illegal. There is hardly any parallel between an officer conduct- ing a search who has no authority under the law and a search having been made which does not strictly con- form to the provisions of Section 15 of the Act. The prin- ciples which have been settled with regard to the effect of an irregular search made in exercise of the powers un- der Section 165 of the Code of Criminal Procedure would be fully applicable even to a case under the Act where the search has not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which any search carried out in contravention of Section 15 would render the trial ille- gal. In the absence of such a provision we must apply the law which has been laid down with regard to searches made under the provisions of the Criminal Procedure code. In para 8 it was held that "In conclusion it may be observed that the investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in sub-sections (1) and (2) of Section 15 of the Act. The legislature in its wisdom provided special safeguards owing to the nature of the premises which have to be searched involving inroads on the privacy of citizens and handling of delicate situations in respect of females. But the entire proceedings and the trial do not become illegal and vitiated owing to the non-observance of or non-compliance with the directions contained in the aforesaid provisions. The Court, however, has to be JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68­A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 11 of 22/K very careful and circumspect in weighing the evidence where there has been such a failure on the part of the in- vestigating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside.

In the case of Sukhdev Yadav & ors. Vs State of Bihar (2001) 8 SCC 86 it was held by Hon Supreme Court that that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same . If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram vs. State of Haryana (1999) 9 SCC 525 it was observed that JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68­A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 13 of 22/K there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Relying upon an earlier decision in Ramani vs. State of M.P. (1999) 8 SCC 649 it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment the credit of a witness by proof of an JUDGMENT/ST.VS.TILAK RAJ/FIR NO.99/94/U/S.63,65,68­A of Copyright Act, 1957 /CONVICTED/23.5.2009/Pg 14 of 22/K inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.

34.In the present case from the possession of the accused a recording machines which falls within the definition of a dupli- cating equipment was recovered which is used for reproducing copies of the audio cassettes and therefore the accused is also liable to be punished for the offence under section 65 of The Copyright Act 1957.

35. The accused also infringed the copyright of the audio cassettes as discussed above. Accordingly the prosecution is also succeeded in proving its case against the accused u/s.63 of the Copyright Act, 1957. In view of the above, the accused is found guilty and convicted for the offences u/s.63,65 & 68A of the Copyright Act, 1957.