IN THE COURT OF SH. DIG VINAY SINGH, ADDITIONAL CHIEF METROPOLITAN MAGISTRATE03 (IPR), ROHINI, DELHI In re: [ENTITY] COMPLAINANT VS. [ENTITY] ACCUSED FIR NO.205/91 PS CHANDNI MAHAL U/S. 63 COPYRIGHT ACT, 1957 DATE OF RESERVATION OF [ENTITY]: 18.5.2009 DATE OF PRONOUNCEMENT OF [ENTITY]: 21.5.2009 JUDGEMENT
(a) The serial no. of the case :246/3. (b) The date of commission of offence :14.9.1991. (c) The name of complainant :[ENTITY] s/o. [ENTITY] (d) The name, parentage, residence of accused :[ENTITY] s/o. [ENTITY] r/o.1094, [ENTITY], Chandni Mahal, Delhi. (e) The offence complained of/ proved :U/[SECTION] [ACT]. (f) The plea of accused :Pleaded not guilty (g) The final order :Acquitted. (h) The date of such order : 21.5.2009. (i) Brief statement of the reasons for the decision:
1. In this case, two accused namely [ENTITY] and [ENTITY] were sent up tor trial. During pendency of the case, accused [ENTITY] expired and proceedings against him were declared abated on 30.11.2007. Therefore, the present judgment is directed against accused [ENTITY] only.
2. Brief facts of the case are that complainant M/s. [ENTITY], through its authorised representative [ENTITY], filed a complaint before DCP/Crime and Railways alleging that the complainant company is engaged in music recordings and various audio cassettes of number of films were being recorded and sold by the complainant company and, the complainant company [ENTITY]/[ENTITY] VS. [ENTITY] FIR NO.205/91/[ACT] ACQUITTED/21.5.2009 /Page 1 of 9 k also had a copyright in the said work under the name [ENTITY] The company suspected that certain persons, who at that time were unknown, were indulging in infringement of its copyright by recording and selling audio cassettes of those film songs, the copyright of which were in favour of complainant. This complaint is dated 05.9.1991 and on this complaint allegedly secret inquiries were made during which a secret information was received by the police that accused [ENTITY] was indulging in infringement. A raiding party was organised, comprising of [ENTITY], [ENTITY] alongwith few police officials on 14.9.1991 and from premises no.1094, Ist Floor, [ENTITY], PS Chandni Mahal, Delhi, from where 634 infringed audio cassettes; 700 infringed sheets ; 62000 infringed inlay cards; 2 cassette copier and one rewinding machine were allegedly recovered. At that time accused [ENTITY] was stated to be present in the premises recording the cassettes. The recovered case property was kept in seven gunny bags, which were given sl. no.1 to 7 and the same were sealed. The machines and rewinding machine were separately sealed and the case property was taken into police possession. Thereafter, the case was registered and the accused was arrested. It is further the case of prosecution that subsequently from second accused, certain other case property was recovered, with which, were not concerned since accused [ENTITY] has already expired.
3. Accordingly, a charge u/[SECTION] of [ACT], was framed by my Ld. Predecessor on 09.12.2000 against accused [ENTITY]. It may be mentioned here that charges for the offence u/[SECTION] and [SECTION] of the [ACT], were not framed against the accused. My Ld. Predecessor Court on 09.12.2000 passed specific order on charge directing that charge u/[SECTION] of [ACT], only be framed against the accused.
4. In support of its case, prosecution examined total seven witnesses namely PW1 [ENTITY], PW2 [ENTITY], PW3 [ENTITY], PW4 [ENTITY], PW5 [ENTITY], PW6 [ENTITY] & PW7 [ENTITY], (retired).
5. Entire incriminating evidence against the accused was put to him to which accused denied that anything was recovered from his possession. The accused stated that he has been falsely implicated and arrested in this case and that he did not make any disclosure and nothing was recovered from his possession. Accused did not opt to lead any evidence in his favour.
6. I have heard the Ld. Counsel for accused and Ld. APP for the [ENTITY]. Ld. Counsel for the accused argued that total ten witnesses were cited by the prosecution and only seven were examined; two eye witnesses who were allegedly claimed to be independent witnesses namely [ENTITY] and [ENTITY]/[ENTITY] VS. [ENTITY] FIR NO.205/91/[ACT] ACQUITTED/21.5.2009 /Page 2 of 9 k [ENTITY], who allegedly witnessed the recovery have not been examined; PW4 [ENTITY], the complainant of case turned hostile when he was examined as PW4; none of the cassettes allegedly recovered belonged to or consist infringement of [ENTITY] i.e. complainant; the IO did not explain as to the delay in registration of FIR between 10.9.1991 to 14.9.1991, although, the complaint is dated 05.9.1991. It is also argued that one Inspector [ENTITY] was a necessary witness who has not been joined nor cited as a witness; no independent witness of locality has been joined and there are large number of contradictions in the statement of prosecution witnesses. It is lastly argued that allegedly 19 days after the disclosure of accused [ENTITY], raid was conducted on the alleged printing press where allegedly printing was done. It is claimed that on the above grounds, the prosecution has failed to prove its case beyond reasonable doubts and, therefore, the accused should be acquitted.
7. Perusal of the testimony of prosecution witnesses reveals that PW1 [ENTITY], is a witness against the deceased accused and does not pertain to the present accused as he was witness to the seizure of case property from the recovery of accused [ENTITY]. Therefore, testimony of witness PW1 is of no help to the case of prosecution, so far as present accused is concerned.
8. PW2 [ENTITY] was a Duty officer, who registered FIR and he is a formal witness. He proved the FIR Ex. PW2/A.
9. Similarly, PW5 [ENTITY] is a formal witness, who deposed that on 16.4.1992, the complainant [ENTITY] produced two authority letters and one certificate to the IO which were seized by the IO vide seizure memo Ex. PW5/A bearing signatures of this witness and those documents were proved as Ex. PW4/B1, PW4/B2 and Mark A.
10. Similarly, PW6 [ENTITY], from [ENTITY], deposed that M/s. [ENTITY], was owning copyrights of films "[ENTITY], [ENTITY], [ENTITY]", which were purchased from the producers and in April, 1999, copyrights of these films were sold to M/s. Tips Industries Pvt. Ltd. He deposed that prior to the sale of copyright, M/s. [ENTITY], were exclusively and sole copyright owners. He deposed that original deeds were handed over to the purchasers of copyright i.e. Tips Industries Pvt. Ltd. Therefore, the same cannot be produced. However, he proved the copies of agreement regarding sale of copyright of films "[ENTITY], [ENTITY], [ENTITY]". However, he produced sale documents of films "[ENTITY], [ENTITY], [ENTITY]" as mark PW6/A, [ENTITY]/[ENTITY] VS. [ENTITY] FIR NO.205/91/[ACT] ACQUITTED/21.5.2009 /Page 3 of 9 k PW6/B and PW6/C respectively. He identified the signatures of the officials of his company on these three documents. He also proved the documents vide which the copyright was sold as Ex. PW6/E. The testimony of this witness is also of no help to the case of prosecution.
11. PW4 [ENTITY] was the complainant on whose signed complaint, this case was registered, but when this witness appeared in the witness box, he deposed that he did not make any complaint to the police regarding piracy, although he signed the complaint as an authorised signatory. Thus this witness turned absolute hostile to the case of prosecution and he was cross examined by Ld. Prosecutor for the [ENTITY] after obtaining permission from the Court. In the cross examination by Ld. APP, the witness admitted that he gave a complaint dated 05.9.1991 to the DCP Ex. PW4/A as authorised signatory of M/s. [ENTITY] The witness further admitted that the two letters dated 02.9.1991 authorising [ENTITY] and [ENTITY] to participate in the raid were also forwarded by him as Ex. PW4/B1 & PW4/B2. The witness however had shown his ignorance whether on the basis of his complaint an FIR was registered or not. This witness was subjected to cross examination by accused [ENTITY] through his counsel and in the cross examination by the accused, the witness categorically stated that neither the complaint was typed nor it was drafted on his instructions. He deposed that he does not know as to on whose instructions, it was typed. Similarly, he replied to the two letters dated 02.9.1991. the witness deposed that since he was authorised signatory of the company, therefore, he used to sign various documents in routine. He also deposed that he simply put his signatures on the complaint Ex. PW4/A and he does not know who submitted the complaint and, to whom. He also deposed that he does not know as to what action has been taken on the complaint, if any. Thus, the testimony of of this witness also is of no help to the case of prosecution since this witness did not support the case of prosecution rather he stated that he routinely signed the complaint and he does not know its contents nor it was drafted on his instructions. Therefore, the complaint Ex. PW4/A and the letter dated 02.9.1991 Ex. PW4/B1 & PW4/B2 are not proved. It may also be mentioned here that this witness is not a witness of recovery of the above infringed articles from the accused.
12. PW3 [ENTITY] and PW7 [ENTITY] are both the witnesses of recovery. PW7 [ENTITY] deposed that on 11.9.1991, complaint Ex. PW4/A was marked to him for action and he made inquiries regarding complaint after which he received a secret information on 14.9.1991 upon which a raiding party was constituted which included [ENTITY]. Both these witnesses deposed that raiding party comprising of both of them alongwith, [ENTITY] and [ENTITY]/[ENTITY] VS. [ENTITY] FIR NO.205/91/[ACT] ACQUITTED/21.5.2009 /Page 4 of 9 k Ahmed under the supervision of Inspector [ENTITY] raided the house of the accused [ENTITY] on 14.9.1991 at 5.15 pm where the accused was physically present preparing infringed audio cassettes. On search of house, 634 infringed audio cassettes , 62000 infringed inlay cards, two recording machines and one rewinding machine were recovered which were taken into police possession vide memo Ex. PW3/A. Thereafter, ruqqa was prepared and PW3 was sent to PS for registration of case. The case property was sealed with the seal of SK and the seal after use was handed over to [ENTITY]. Thereafter, the accused was arrested vide arrest memo and personal search memo Ex. PW3/B. PW7 further deposed that the accused made a disclosure statement pursuant to which premises of J.K. Printers was raided on 28.9.1991 and from the possession of deceased accused [ENTITY], infringed material/printing machine etc. were recovered which were also taken into police possession. The case property was shown to the witness PW7, who identified the same except the two recording machines and one rewinding machine which were on Superdari of the accused which were also subsequently brought by the accused and proved in the evidence as Ex.P3. Both these witnesses were subjected to cross examination by the accused through his counsel.
13. Ld. Counsel for the accused has laid much emphasises on certain contradictions appearing in the testimony of these two witnesses. However, in my considered view, those contradictions are trivial in nature and do not really affect the decision of case. Those contradictions are very trivial, such as, with which vehicle the police party reached the spot, till what time the proceedings were conducted, at what time the ruqqa was sent for registration of case, at what time the Constable returned to the spot after registration of FIR etc. etc. No undue weightage can be given to those minor contradictions. In my considered view none of the contradictions as appearing in the statement of the witnesses and as pointed out are material enough to create doubt about the truthfulness of the case of the prosecution. The nature of contradictions pointed out in the present case are minor and are infact simple errors of observation which occurs in human nature. Simply because there occurs some minor variations in their powers of observation and retention would not Yadav & ors. Vs [ENTITY] make the case of the prosecution unbelievable. In the case of [PRECEDENT] it was held by Hon Supreme Court relying upon an earlier decision in Leela Ram vs. [ENTITY] of Haryana (1999) 9 SCC 525 was observed that 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 [ENTITY]/[ENTITY] VS. [ENTITY] FIR NO.205/91/[ACT] ACQUITTED/21.5.2009 /Page 5 of 9 k 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 [PRECEDENT] acceptable evidence. Relying upon an earlier decision in Ramani vs. [ENTITY] of M.P. 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 nondiscrepant. 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.
14. But, the question which still remains whether in view of the above evidence led by the prosecution, the prosecution can be said to have proved its case beyond reasonable doubt. We may remind ourselves here that in a criminal trial, it is the prosecution which has to prove its case beyond reasonable doubt and it is not the accused to prove its defence. The case of prosecution should stand on its own legs and the prosecution cannot take advantage of non explanation of the accused regarding motive for false implication. Ld. APP for the [ENTITY] argued that the accused has not come up with any reason as to why he has been falsely implicated but then on this ground, a conviction cannot be based if the prosecution is otherwise not able to prove its case beyond reasonable doubt.
15. In Sharad Birdhichand Sarda v. [ENTITY] of Maharashtra, 1984 (4) SCC 116 at 184: (AIR 1984 SC 1622) (at pages 165556) it was observed that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence and that it is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a faIse defence or a plea which is not accepted by a Court.
16. PW3 in the cross examination stated that all 634 audio cassettes which were recovered from the accused were belonging to Weston Co. Whereas the case property which was produced was shown to the witness in the cross examination and the witness admitted that none of the audio [ENTITY]/[ENTITY] VS. [ENTITY] FIR NO.205/91/[ACT] ACQUITTED/21.5.2009 /Page 6 of 9 k cassettes produced in the Court was of Weston Company. This means that either the case property which was produced in the Court was not the same which was allegedly seized or that there is something wrong with the case of prosecution. This fact is very material and important fact which affects the root of this case. PW3 also admitted that he is not aware as to of which companies, the inlay cards recovered belonged to or, how many such inlay cards were of Weston Company.
17. Besides this, it is the case of prosecution that in the case property, the seal which was affixed was of [ENTITY]. The said [ENTITY] is not a police official, but he was a public witness. It is very strange that a seal of a public witness [ENTITY] was affixed by the investigating team on the recovered case property and the police did not affix their own seal. No plausible explanation has been put forth for this. It is a highly unnatural that a public person was carrying his seal to be affixed on the case property. This fact coupled with the fact that the said [ENTITY] has not been examined in this case, is fatal to the case of prosecution. PW3 contradicted himself by saying that seal was of [ENTITY] and again said that seal was of IO. Whereas, IO PW7 [ENTITY] categorically admitted that seal was of [ENTITY].
18. Neither [ENTITY] nor another public witness, who allegedly witnessed the raid namely [ENTITY] have been examined. Non examination of these two witnesses is again fatal to the case of prosecution. PW3 admitted that near the premises from where recovery was effected, there are other houses also. It is the admitted case of prosecution that no witness from the locality was joined in this raid. [SECTION] of [ACT] specifically state that before making a search, the officer about to make search shall call upon two or more independent and respective inhabitant of the locality in which, the place is to be searched, is situated or, of any other locality, if no such inhabitant of the locality to be searched is available or willing to be a witness to the search. This section also provides that officer making search may issue an order in writing to such persons. In the present case admittedly there is no respectable independent witness of the locality of search is joined by the investigating agency. No name or address of those persons, from the same locality, who were so requested but they refused to join, is even mentioned. Although, PW7 in the cross examination stated that he requested occupants of one such house but even the name of that person is not mentioned anywhere in the judicial record prior to cross examination. Name is not even mentioned in the cross examination. Witness [ENTITY] and [ENTITY] cannot be called independent witnesses as they were associated with the complainant company. Even [ENTITY]/[ENTITY] VS. [ENTITY] FIR NO.205/91/[ACT] ACQUITTED/21.5.2009 /Page 7 of 9 k otherwise, they have not been examined during evidence by the prosecution. Non joining of witnesses from same locality particularly in view of above discussion is again a serious lapse by the prosecution. Besides this, the fact that police claims that on the complaint dated 05.9.1991, which was given on 10.9.1991, secret information was being gathered but no such fact is mentioned by the investigating officials in police diaries, which also creates doubt about the case of prosecution. Allegedly, accused [ENTITY] made a disclosure statement against the deceased accused but the premises of deceased accused was raided and, alleged recovery affected, after as many as fourteen days of the disclosure. This again creates serious suspicion on the case of prosecution. It is admitted case of the prosecution that none of the cassettes were played either at the place of recovery or at the police headquarter to check its contents. Inspector [ENTITY], who was also present in the raid and was vital to the case of prosecution has not been even cited as a witness nor examined. No departure entry or arrival entry by the police to the place of recovery has been proved which could have lend some credence to the case of prosecution particularly when the investigating agency claims that they had prior secret information about accused and that the raiding party on the date of recovery specifically departed to the premises of accused from the Crime Branch office. In such circumstances, DD entry register which records the departure and arrival of police officials on duty ought to have been proved, which is not proved.
19. Lastly, the provisions of [SECTION] of the [ACT] have not been complied with. [SECTION] of the [ACT] provides that any police official, if he is satisfied that an offence u/[SECTION] of [ACT] in any work has been, is being or is likely to be committed, seize without want of such copies of infringed work and plates used in making the infringed copies of the work wherever found. It further provides that all such copies and plates so seized shall, as soon as possible, be produced before a Magistrate.
20. In the present matter, the case property was not produced before a Magistrate in compliance of [SECTION] of the [ACT], and which again creates suspicion on the alleged recovery.
21. Law is well setteled that suspicion however strong cannot take place of proof. However strong suspicion may be it cannot take the place of proof. It cannot be the basis for conviction of an accused. ( so held in Parkash Chander vs. [ENTITY] 1994 JCC Delhi: [ENTITY] (N. C. T. of Delhi) v. Navjot Sandhu AIR 2005 SUPREME COURT 3820 : R. Sai Bharathi v. J. Jayalalitha AIR 2004 SUPREME COURT 692).
22. In view of the above discussion, the prosecution has failed to prove its case beyond reasonable [ENTITY]/[ENTITY] VS. [ENTITY] FIR NO.205/91/[ACT] ACQUITTED/21.5.2009 /Page 8 of 9 k doubt and benefit of the same ought to go to the accused. Accordingly, the accused is acquitted of the charges. His surety bond and personal bond, if any stands cancelled. Surety is discharged. Endorsement, if any on the documents of surety stand cancelled. File be consigned to Record Room.
th ANNOUNCED IN OPEN COURT ON 21 May, 2009.
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