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2017 DIGILAW 860 (ALL)

RAJVEER SINGH v. STATE OF U. P.

2017-03-27

HARSH KUMAR

body2017
JUDGMENT : Hon'ble Harsh Kumar, J. Supplementary affidavit filed by learned counsel for the applicant today in the Court, is taken on record. Heard learned counsel for the applicant, learned AGA for the State and perused the record. Learned counsel for the complainant-appellant contended that the complainant-appellant is an advocate in District Court and on 26.11.2008, he purchased the Dainik Hindi "i-next" Newspaper for Rs.1/- and when he gone through the calender with the newspaper, he found there some obscene, exposed photographs of women in only shorter cloths, which were sufficient to tend to deprave and corrupt persons and were a social evil; that such a newspaper may not be read with family members and the act of Editor and Publisher in getting the above material printed for the calender comes within the definition of an offence under section 292 IPC; that the complainant-appellant has proved the charges against the accused by examining himself and one Krishna Kumar Sharma, as witness; that the learned trial court has acted wrongly and illegally in disbelieving the prosecution evidence and acquitting the accused-respondent; that it is wrong to say that in the changed scenario of the society and in view of availability of obscene materials on internet, its telecast on various channels of television as well as the materials and photos of the girls with exposure published in certain magzines, was not objectionable or obscene; that the appellant has every hope of success in appeal and by allowing the appeal, the accused-respondent is liable to be convicted for the offence under section 292 IPC; that the leave to file appeal may kindly be granted to applicant. Per contra, learned AGA supported the impugned judgment and contended that that there is nothing objectionable or obscene in the photographs of girls in innerwears and no private part of their body is exposed in a way, which may attract the provisions of section 292 of IPC. Per contra, learned AGA supported the impugned judgment and contended that that there is nothing objectionable or obscene in the photographs of girls in innerwears and no private part of their body is exposed in a way, which may attract the provisions of section 292 of IPC. Upon hearing learned counsel for the parties and perusal of record as well as the impugned judgment and the copy of impugned calendar of newspaper "i-next" containing the alleged obscene material provided with supplementary affidavit and the statements of prosecution witnesses on record, I find that the learned trial court has discussed and analyzed the prosecution evidence in detail and has come to the conclusion that undisputedly, the newspaper and the concerned material has been published from Agra and the local publisher has not been made accused, and it also noted that the accused-respondent has stated that he holds his office at Kanpur and the liability if any was of Agra Editor and Publisher and he has no direct concerned with the publication, which fact has not been disputed by prosecution. Upon going through the evidence on record and in view of the availability of calenders of Mohan Meakins and Kingfishers etc. which come to market regularly as well as the material available on internet including the daily telecasts on several channels of television and considering that in the calender in question, in all the photographs of girls, their private parts are covered with lingeries/ cloths, and though upper part of body is exposed to some extent, but none of the private part can be said to be nude in even a single photograph and in view of the above facts, the trial court has rightly come to the conclusion that the above photographs, may not be considered to be obscene in view of the present scenario of changing society. It is settled principle of law that if on one point there can be two opinions and the trial court has come to one opinion in passing the acquittal order unless and until the findings of trial court are perverse and suffers from manifest error of law, such findings of acquittal may not be interfered with or set aside by the appellate court merely for the reason that other view could also have been taken. The Supreme court in the case of K. Prakashan Vs. The Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 also held "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified". In view of discussions made above, I have come to the conclusion that the learned counsel for the applicant has failed to show any legal infirmity, incorrectness or perversity in the findings given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application u/s 378 (4) Cr.P.C. has no force and is liable to be dismissed. The application u/s 378 (4) Cr.P.C. for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.