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Himachal Pradesh High Court · body

2019 DIGILAW 1142 (HP)

Vijay Kumar v. State of H. P.

2019-08-13

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The learned Additional Sessions Judge, Fast Track Court, Shimla, H.P., though, acquitted the accused for the charges framed under Section 376 of the IPC, and, vis-a-vis, the charge framed, under, Section 67 of the Information Technology Act, 2000. However, he convicted the accused/appellant herein, for, commission, of, an offence punishable, under, Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986, and, also sentenced him to undergo rigorous imprisonment, for, a period of one year, and, to pay a fine of Rs.1,000/-, and, in default of payment of fine amount, he was further sentenced, to, undergo rigorous imprisonment, for, a period of one month. Moreover, the accused/convict was also directed, to, pay a sum of Rs.1,00,000/-, as, compensation, to, the prosecutrix. The aggrieved convict/accused hence challenges the conviction pronounced, upon, him, vis-a-vis, the afore charge, and, also challenges, the, afore therewith consequential, order, of, sentence(s) imposed, upon, him. 2. On 20th June, 2005, the prosecutrix allegedly made a statement under Section 154, Cr.P.C., before the police that in the year, 1999 and 2000, she studied in S.D. School, Shimla in 10th and 10+1 class. She took the 10+2 examination as a private candidate. Her father left the land of dying anterior to her birth, whereafter her mother remarried. She has a younger sister. Their mother employed in the Industries Department. The accused, who runs a shop on the Mall Road, Shimla, is their family friend, and, used to visit their house since long. When her sister was married in the month of May, 2004, her "Kanyadan" was done by Sh. Vijay Kumar Sood, accused. As their financial condition was not good, in the year 2001, she while pursuing her studies joined the services of Goel Properties, Shimla. After some time, she left the said job as she wanted to learn the computer. One day, the accused came to her house and remarked as to why she should pay Rs.2,500/- as fees and join some computer center to learn the computer. The accused even remarked that there is a computer in his office and he will teach its operation to her on payment of Rs.500/- per mensem. She then started going to the office of the accused to undergo the computer training. She kept visiting the office of the accused for three months. The accused even remarked that there is a computer in his office and he will teach its operation to her on payment of Rs.500/- per mensem. She then started going to the office of the accused to undergo the computer training. She kept visiting the office of the accused for three months. During the said period, the accused several times touched her waist and back etc., to which she objected. When she learnt the computer, accused got her employed on the shop of one Sh. Amrit Singh above Sohan Studio, The Mall, Shimla. During those days, an advertisement appeared in the newspaper for modeling in Delhi. She sent her photograph to Mr. Jitu of Delhi. She was selected for modeling at Delhi. For the last 1 1/2 years, she is working as a model in Delhi. She visited, her house at Shimla twice, during the last 1 1/2 years. In the year 2004, when she visited Shimla, the accused inquired from her about her boy friend. While learning the computer, she had told the accused about her boy friend stationed at Chandigarh as he used to ring her up. She had even divulged before the accused that she is having physical relations with her boy friend and wants to marry him. After the expiry of two months from the date of wedding of her sister, she came to Shimla. She telephoned the accused and told him that she has to leave for Delhi by the night bus. She even requested the accused to depute his servant so that he leaves her luggage at the bus-stand. On this, the accused asked her to come to his office and leave for Delhi after eating something. The accused also remarked that his servant will drop her at the bus stand. She accordingly reached the office of the accused in the evening. The accused served her the juice which she had. As she was in need of the money, she requested the accused to lend her the same. She even conveyed to the accused that as and when she visits Shimla again, she will refund the borrowed sum. While she was having the juice, the accused started talking to her regarding her boy friend and asked her to have the sexual intercourse with him. She refused to have the coitus with him. She even conveyed to the accused that as and when she visits Shimla again, she will refund the borrowed sum. While she was having the juice, the accused started talking to her regarding her boy friend and asked her to have the sexual intercourse with him. She refused to have the coitus with him. On this, the accused remarked that if she can enjoy the sex with her boy friend, she should have not hitch in having the sex with him. She told the accused time and again that she will not have the sex with him. Then the accused proclaimed that he will disclose about her physical relations with her boy friend in front of her mother. Under these circumstances, she was forced to have the sexual inter course with the accused so that he keeps mum regarding her physical relations with her boy friend. Some intoxicant was administered to her by the accused, after mixing it with the juice. On consumption of the juice, she became a bit tipsy. Thereafter, the accused took off her clothes and sexually abused her. The accused then gave Rs.500/- and left her on bus station, Shimla, so that she catches the bus which leaves for Delhi at 10 p.m. While the accused was having the sex with her, he never told her that he is making her blue film. Even she could not make out that the accused is making a video showing him having coitus with her. The lewd video/CD was prepared by the accused in a clandestine manner. Now the accused has been arrested by the police for preparing the obscene CD(s). She has come to know from her parents and the police that in the video/CD she and the accused feature having the sex. The accused took undue advantange of his familiarity with her family, her need for the money and helplessness. She has come to know that such CD(s) have also been sold in the market. Once, the accused had played an obscene CD on the computer when she was learning the same, spotting her, the accused stopped playing the CD, and, remarked that he was not knowing that she is about to come. As she was ashamed to her act, she did not disclose about the incident before anyone. Once, the accused had played an obscene CD on the computer when she was learning the same, spotting her, the accused stopped playing the CD, and, remarked that he was not knowing that she is about to come. As she was ashamed to her act, she did not disclose about the incident before anyone. On the basis of afore statement of the prosecutrix, FIR was registered against the accused, and, thereafter the police completed all the investigating formalities in the case. 3. On conclusion of the investigations, into the offences, allegedly committed by the accused, a report, under Section 173 of the Code of Criminal Procedure, was prepared, and, filed before the learned trial Court. 4. The accused/appellant herein stood charged, by the learned trial Court, for, his committing offences, punishable under Section 376 of the IPC, and, under Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986, and, under Section 67 of the Information Technology Act, 2000. In proof of the prosecution case, the prosecution examined 21 witnesses. On conclusion of recording, of, the prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal, in, favour of the accused/appellant herein, vis-a-vis, the charges framed under Section 376 of the IPC, and, under Section 67 of the Information Technology Act, 200, whereas, it returned findings of conviction, against the accused/appellant herein, vis-a-vis, an offence punishable, under, Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986. 6. The appellant herein/convict, stands aggrieved, by the afore findings of conviction, recorded, by the learned trial Court. The Senior Counsel appearing for the convict/appellant, has, concertedly and vigorously contended, qua the afore findings of conviction, recorded by the learned trial Court, standing not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal. 7. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General appearing for the respondent/State, has, with considerable force, and, vigour, contended qua the findings of conviction, recorded, by the learned trial Court, rather standing based, on a mature, and, balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. Apparently, neither the State of Himachal Pradesh, nor the aggrieved prosecutrix/victim, have, through instituting appeals, before this Court, hence cast any onslaught, vis-a-vis, the acquittal pronounced, by the learned trial Court, upon, the accused, vis-a-vis, the charges framed, under, Section 376 of the IPC, and, under Section 67 of the Information Technology Act, 2000. Consequently, the order of acquittal pronounced, upon, the accused/convict, vis-a-vis, the afore charges obviously acquire(s) conclusivity, and, binding effect. In aftermath, this Court is not enjoined, to, discern, from, the prosecution evidence, qua hence, its making any purported displays, vis-a-vis, the accused committing the afore charged offence, rather this Court, is, only enjoined, to, adjudicate, whether, the learned trial Court, meted an appropriate interpretation, vis-a-vis, the apt provisions, of, Section 4, of, the Indecent Representation of Women (Prohibition) Act, 1986 (hereinafter referred to as the Act), provisions whereof stand extracted hereinafter:- "4. Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women.- No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form:" 10. Before proceeding to validate or invalidate, the, interpretation, meted, by the learned trial Court, qua the hereinabove extracted apt provisions of the Act, it is deemed fit to allude, to, the deposition, rendered by PW-10, (a) wherein, he has made, an, echoing qua his preparing/generating obscene CDs, from, the hard disc, of, the CPU of the accused. Before proceeding to validate or invalidate, the, interpretation, meted, by the learned trial Court, qua the hereinabove extracted apt provisions of the Act, it is deemed fit to allude, to, the deposition, rendered by PW-10, (a) wherein, he has made, an, echoing qua his preparing/generating obscene CDs, from, the hard disc, of, the CPU of the accused. The making of the afore echoing by PW-10, in his deposition, does, assume significance, as, the CDs carrying obscene, and, prurient contents, remain undisplayed, by cogent prosecution evidence, to be hence televised or screened, for, hence facilitating apt public viewing(s) thereof. Since, the afore, evidence is amiss, and, when it hence, can be concomitantly concluded, qua the CDs generated or prepared by PW-10, from, the hard disc of the CPU, of, the accused, and, theirs containing prurient, and, obscene contents, rather being meant, only, for the private viewing, of, the accused/'convict. However, the learned trial Court, upon, meteing, a, strict interpretation, to, the apt hereinabove extracted provisions, of, Section 4 of the Act, rather concluded, that, thereupon, also the accused "producing or causing, to, produce, sell, letting to hire, distributing, circulating, or sending by post, pamphlet, paper, sliding, film, writing, drawing, painting etc., hence, the afore CDs". The afore strict interpretation, meted, to the apt provisions of the Act, is, for the reasons assigned hereinafter hence engendered, from, a stark fallacy (a) as, the apt "words" borne in the apt statutory provisions, are borne in the statutory phrase "No person shall produce or cause to be produced", naturally, the afore, carry, the, lead or are the apt beckon, for, therefrom hence rendering, a, befitting interpretation, to, the subsequently occurring "words" therein. (b) Conspicuously, the, mere existence, of, CDs inside the CPU of the accused/convict, and, when the requisite afore evidence, vis-a-vis, it being disseminated for public viewing, is, grossly amiss, hence, thereupon, this Court forms, a, conclusion qua it being, meant only, for, the viewing of the accused, hence, also bearing in the mind the definition meted, to, "produce" by the "Lexicon",, definition whereof stands extracted hereinafter:- "Produce:- As a noun the words has no definite, exact, and, particular meaning; it may be used in a larger or more restricted sense. As a verb: To bring forward to show or exhibit, to bring into view or notice; as, to produce books or writings at a trial in obedience to a subpoena to bring forward; to offer to view or notice; to show; to manufacture, make." (I) definition whereof enjoins exhibition or public dissemination, for hence production, being caused or the relevant incriminatory material, being construed to be produced, (ii) thereupon, the afore stricto sensu meteing, of, an interpretation, qua the afore lead parlance, occurring in the apt phrase, is grossly inapt. Moreover, with the afore evidence displaying, qua the relevant material, being not , publicly disseminated or publicly exhibited, thereupon, in consonance, with, the afore parlance, as, meted, to, the afore coinage, "no person shall produce or caused to be produced", (iii) this Court concludes that the conviction, of, the accused/convict/appellant herein, and, in consonance therewith imposition of sentence, vis-a-vis, the charge framed under Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 rather being not sustainable. 11. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has not appraised the entire evidence, on record, in a wholesome and harmonious manner, apart therefrom, the analysis of the material, on record, by the learned trial court, hence, suffers, from, a gross perversity or absurdity of mis-appreciation, and, non appreciation, of, germane evidence, on record. 12. Consequently, the instant appeal is allowed, and, the impugned judgment, convicting, and, sentencing the accused/appellant herein, for his committing an offence punishable, under, Section 6 of the Indecent Representation of Women (Prohibition) Act, is, set aside. In sequel, he is acquitted for the afore offence. The fine amount, if any, deposited by him, be released to him, forthwith. All pending applications also stand disposed of. Records be sent back forthwith.