IN THE COURT OF [ENTITY]: METROPOLITAN MAGISTRATE: DELHI In Re: STATE VERSUS VED PRAKASH ETC. F.I.R. No: 1201/99 U/[SECTION] [ACT] Date of Institution of Case : 04.01.2000 Date of Judgment Reserved for : 22.01.2011 Date of Judgment : 22.01.2011 JUDGMENT:
(a) The serial no. of the case : 4404/1/08 (b) The date of commission of offence : 14.11.1999 (c) The name of complainant : SI [ENTITY]
(d) The name, parentage, : 1. [ENTITY] S/o Sh. of accused [ENTITY], r/o H. No. 145, near PO Nangloi, Delhi. 2. [ENTITY] S/o Sh. [ENTITY], r/o B-54, Gujrawala Town, Delhi. Present Address : As above (e) The offence complained of: 292/34 [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Convicted (h) The date of such order : 22.01.2011
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 14.11.1999 at about 5.10 PM at Shobha Cinema near Punjabi Basti Main Rohak road, Nangloi, Delhi within the jurisdiction of PS Nangloi, accused [ENTITY] along with co-accused [ENTITY] in furtherance of their common intention being the licence holder of cinematography Act 1952, publicly exhibited or advertised/pasted obscene poster of two naked ladies at [ENTITY] and fixed small slip on the same titled as "Shobha Cinema Rozana 4 Show" and thus thereby the accused persons committed an offence punishable u/[SECTION] [ACT].
2. Charge sheet was filed in the court, accused was supplied the documents in compliance of [SECTION] [ACT] and vide order dated 08.08.2000, charge u/[SECTION] [ACT] was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused persons, prosecution examined 4 witnesses, thereafter the PE in the matter was closed and the statement of accused persons u/[SECTION] [ACT] were recorded wherein they claimed themselves to be innocent and having been falsely implicated in the case.
A brief scrutiny of the evidence recorded in the matter is as under:
4 PW1 [ENTITY] deposed that on 14.11.1999 he was posted as duty officer at PS Nangloi and on that day at about 7.05 pm on receipt of rukka sent by SI [ENTITY] through Ct. [ENTITY], he recorded the case FIR no. 1201/99 as Ex. PW1/A.
5. PW 2 [ENTITY] deposed that on 14.11.1999 on the instruction of IO SI [ENTITY], he took one photograph at the spot and the same along with its negative are Ex. P1 & P2.
6. PW 3 SI [ENTITY] deposed that on 14.11.1999 he was posted at PS Nangloi and on that day he along with Ct. [ENTITY] were on patrolling in the area of PS Nangloi. He deposed that at about 5.10 pm he saw obscene posters at [ENTITY] on which "[ENTITY]" was written and pictures of two nude ladies was printed. He deposed that he called the private photographer who took the photographs of that posters on which the sticker titled as "Shobha Cinema daily 4 shows' was fixed. He deposed that they carefully took out the said poster and taken into possession vide seizure memo Ex. PW3/A and the same was seized in a pullanda and sealed with the seal of AKS. He deposed that the seal after use was handed over to Ct. [ENTITY]. Thereafter, he prepared a rukka Ex. PW3/B and sent Ct. [ENTITY] to PS along with rukka for getting the case registered and after getting the case registered Ct. [ENTITY] came back at the spot along with rukka and copy of FIR and handed over to him. He deposed that he prepared the site plan Ex. PW3/C. Thereafter, they went to Shobha Cinema, Sultan Puri and inquired about the license holder who was showing that movie and they came to know that [ENTITY] and [ENTITY] were the license holder (correctly identified). The photocopy of license for running the cinema hall is Mark A. Thereafter, [ENTITY] and [ENTITY] were arrested and released on bail at the spot. The bail bond is Ex. PW3/D and Ex.PW3/E respectively. He deposed that they came back at the PS and deposited the case property in the malkhana. He recorded the statement of the witnesses and prepared the challan and filed the same in the Court.
This witness further identified the case property as Ex.P-1.
7 During his cross examination he stated that he was posted at PS Nangloi from April 1999 to July 2000. He stated that he does not remember the day of incident. He stated that the poster was pasted on the wall of the house near the Rohtak road. He denied the suggestion that any complaint was made by the owner of the house regarding the said poster. He stated that only one poster was pasted on the wall. He admitted that the base of the said poster was single but there were two posters. He admitted that except the words "Silk [ENTITY] in Ruchi Pictures [ENTITY]" there was something else written but he does not remember. He stated that the size of the said poster was approximately 4 x 5 ft, however, he does not know the exact size of the said poster as he had not measured the same. He stated that the poster was obscene as there was picture of nude ladies. He admitted that the pictures as were taken by the photographer are not complete however, he had taken the half photograph of the said poster. He denied the suggestion that intentionally he had taken the half photograph of the said poster because he wants to show it as obscene. He denied the suggestion that in one picture the lady had worn a top and the other picture the lady had worn full dress. He denied the suggestion that he was deposing falsely after seeing the posters. He admitted that pictures were nude but no private part of the ladies were visible in the picture. He stated that the distance between Shobha Cinema and the spot was about 2 km. He admitted that the accused persons are not the Manager of the Cinema hall. He voluntarily stated that they are the license holder. He admitted that after knowing about the license holder he did not try to know about the Manager. He admitted that he had not seen any employee of Shobha Cinema who pasted the said posters. He denied the suggestion that he was deposing falsely.
8. PW 4 [ENTITY] deposed on the same lines as deposed by PW-3.
9. During his cross examination he stated that he has no fixed duty hours. He stated that his patrolling duty was on Rohtak road. He stated that he went to call the photographer whose shop was nearby. He stated that he does not know whether the name of the director was written on the poster. He stated that the slips were pasted on the posters. He stated that he does not know who had printed the said posters.
He stated that he was posted at PS Nangloi from the year 1998. He stated that the incident happened on 14.11.1998. He stated that there were four slips pasted on the poster but he had not seen anyone pasting the poster at that place. He stated that no private part of the woman was seen in the poster. He stated that IO did not find out the publisher or distributor of the film in his presence. He stated that he does not know whether IO took any step against the distributor or publisher of the film. He stated that he does not know the owner of the hall and he did not inquire as he was not the IO of the case. He stated that he does not know whether IO took any action against the Manager. He admitted that film can be released and shown in Cinema hall which was passed by Censor Board. He stated that he does not know whether this film was passed by Censor Board. He stated that the poster was pasted at the said house and he did not see it at other places. He denied the suggestion that accused persons were falsely implicated in the present case. He denied the suggestion that posters were not obscene. He denied the suggestion that he was deposing falsely.
10 This is so far is the prosecution evidence in the present case.
11 I have heard the arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
12. In order to prove its case and establish the guilt of the accused persons the prosecution has to prove that on 14.11.1999 accused persons had publicly exhibited by way of advertisement at Nangloi Chowk obscene posters of two naked ladies and fixed a small slip on the same titled as Shoba Cinema Razana 4 show and thus thereby committed offence punishable u/[SECTION] [ACT].
13. After going through the material on record and giving my thoughtful consideration to the rival contentions raised at bar I am of the opinion that the prosecution has been able to bring home the guilt against the accused.
14. It stands proved from the deposition of PW3 and PW4 that the accused had indeed pasted/advertisement/exhibited obscene posters at Nangloi so as to solicit customers for the show which they were running at Shoba Cinema.
15 PW2 proved that on 14.11.1999 at around 5:10 p.m. while he was on patrolling duty at [ENTITY] he saw two obscene posters carrying the words "[ENTITY]", "Shobha Cinema daily 4 shows". He called the photographer, got the posters photographed and took the same into possession vide Ex. PW3/A. He further proved that he prepared ruqqa Ex. PW3/B and got the case FIR registered. He further proved that on enquiry they came to know that the license holder of Shobha Cinema Sultanpuri were the accused persons i.e. [ENTITY] and [ENTITY] and accordingly they were arrested in the present matter. He further proved the site plan as Ex PW3/C and the license for running the cinema as mark A. 16 The seized material (posters) duly sealed with the seal of AKS was identified by this witness as Ex. P-1.
17 The photographs of the obscene posters are on record as Ex. P1 and P2.
18 Deposition of this witness was duly corroborated by the [ENTITY] (PW4) who proved the arrest of the accused and the seizure of the obscene material from [ENTITY] in a manner as was proved by PW3 i.e. the IO.
19 FIR was proved by PW [ENTITY] as Ex. PW1/A. 20 The prosecution story is absolutely consistent/flawless regarding the arrest of the accused, seizure of the offending material as well as its deposit in the Malkhanna on 14.11.1999.
21 During the course of arguments, Ld. Defence counsel vehemently argued that prosecution has failed to prove its case against the accused as firstly, no public person was joined in the investigation by the IO and the prosecution is relying upon the testimony of police officials only to prove its case. Non-joining of public witness shows that no such incident have ever occurred. It was also argued that the posters were per se not obscene and prosecution has failed to explain how the case falls under [SECTION] [ACT] once the prosecution witnesses admitted that the posters did not depict any private parts of the woman. It was also argued that the prosecution failed to connect the accused persons with either the posters in question i.e. that the posters were pasted by the accused persons or that the accused persons were in any way related to Shobha Cinema.
22 However, I do not agree with either contention of Ld. Defence counsel.
23 I have no reasons to disbelieve the prosecution witnesses, no motive has been proved by the Ld. Defence counsel for false implication of accused persons. There is nothing on record to show that the investigating officer or the recovery witness was inimical to the accused. Even the cross examination by the Ld. Defence counsel failed to impeach the credit of recovery witness PW3 and PW4.
24. It is well settled principle of law that it is the quality of evidence that matters and not the quantity/number of witnesses. [SECTION] of the [ACT] does not require any minimum number of wit- nesses to be examined for proving a particular fact ( [PRECEDENT], [PRECEDENT]. Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation. The Court has also held that civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable. ([PRECEDENT]).
25 There is no requirement of law that everyone who has wit- nessed the occurrence, whatever there number be, must be exam- ined as a witness. ([PRECEDENT]). In [PRECEDENT] it was further observed that (1) It is very hard these days to get association of public witnesses in criminal investigation and (2) Normally, nobody from public is prepared to suffer any incon- venience for the sake of society.
26. Further more, there is no rule of law that police official/official witnesses ought not to be believed/relied upon. Police official/official witnesses do not suffer from any disability to give evidence and their official capacity by itself does not create any doubt about their credit worthiness. They cannot be presumed to be less or more reliable then any other normal public witness. Reliance may be placed upon [PRECEDENT], [PRECEDENT] and [PRECEDENT].
27 I had gone through the seized material which was proved as Ex. P-1 during the deposition of PW3 and PW4 and have judged the same in light of law laid down by the Apex Court in case titled as "[PRECEDENT] as well as Abdul Rashid V. State of Kerala (Kerala) 2009 (1) RCR Criminal
135.". The seized material squarely falls under the category of ob- scene material and is covered under [SECTION] [ACT] as the ma- terial is lascivious and appeals to prurient interest and it has an affect to deprave and corrupt the person who may read or see it. In my opinion, the poster fulfilled the purpose of the accused persons who were the licensee of Shobha Cinema. The poster was deliberately prepared/made so, so as to solicit/invite people to Shobha Cinema wherein the said show was allegedly held. Merely because no private parts of the women were visible in the posters that by itself does not take out the case out of the purview of [SECTION] [ACT] i.e does not make the posters non-obscene as the posters depict the woman as without wearing anything i.e. nude and the heading clubbed with the photo in the posters was intended to give an effect to the public at large that the show would indeed comprise of certain lascivious mate- rial.
28 Regarding the contention of the Ld. Defence counsel that the prosecution failed to connect the accused persons with either the posters i.e. there is no evidence that the posters were pasted by or at the instance of the accused or with the premises in question suffice would be to say that in view of document mark A i.e. the license to run cinematograph film which is in favour of the accused persons no doubt remain that the posters were pasted/advertised/exhibited at the instance/by the accused persons. Reasons being that it was the accused persons who were the sole beneficiary of the posters in question i.e. the posters were designed to invite number of customers and naturally more the number of customer/viewer, more would have been the profit of the accused persons i.e. by way of sale of tickets of the show.
29 Thus, in view of my above discussion, the prosecution has been able to prove the guilt against the accused persons beyond the shadow of doubt. Accordingly the accused persons are held guilty and convicted of charges in the present case.
30 A copy of this judgment be supplied to the accused persons free of cost and the matter be now listed for arguments on the point of sentence.
Announced in the open Court on 22.01.2011 ([ENTITY]) MM (West)/Delhi.
PS Nangloi 22.01.2011 Pr: Ld APP for the state.
Accused persons are present on bail along with their counsel. Final arguments heard.
Vide my separate judgment announced today in Open Court the accused persons have been held guilty under [SECTION] [ACT].
Matter be now listed for arguments on the point of sentence.
([ENTITY]) MM (West)/Delhi.
22.01.2011.
IN THE COURT OF [ENTITY]:
METROPOLITAN MAGISTRATE: WEST: DELHI In Re: [PRECEDENT] U/[SECTION] [ACT] ORDER ON SENTENCE 22.01.2011 Present: Ld. APP for the State.
Convicts [ENTITY] and [ENTITY] are present on bail along with his counsel.
Ld. Defence counsel has submitted that the accused persons may be heard on the point of sentence today itself and hence, arguments on sentence are being heard today itself.
Vide judgment announced today in the court accused persons have been convicted u/[SECTION] [ACT].
The learned defence counsel submitted that convicts have been facing trial for the last more than 10 years and the same itself has been enough punishment for him. It was also prayed the accused persons be given benefit of [SECTION] Cr.p.c. i.e to release the accused persons on probation of good conduct or at least be dealt with leniently.
Per contra, learned APP has very vehemently argued that the act of the accused persons is unpardonable. It was submitted that the obscene material was pasted at Nangloi Chowk which had a tendency to deprave and corrupt those minds which are open to such immoral influences as well as generate repulsive feeling among the public at large. It was submitted that the accused persons deserve no leniency least to release them on probation.
After giving my thoughtful considerations to the submissions made at bar I am of the considered opinion that taking into account the long drawn trial, the age of the accused persons who are around about 60 years and are not involved in any other criminal case it shall meet the ends of justice if benefit of [SECTION] [ACT]. is granted to the accused persons and they are sentenced to period already undergone along with fine of Rs. 5,000/- each for offence u/[SECTION] [ACT]. In default of payment of fine accused persons to undergo SI for 50 days.
Benefit of probation is not given to the accused as the offence they have been held guilty of is a serious one.
I order accordingly. Fine paid.
A copy of this order be given to the convict free of cost. File be consigned to Record Room.
Announced in the open court ([ENTITY]) on 22.01.2011 MM(W) Delhi