IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 Crl.Rev.Pet.No. 163 of 2004(A) ------------------------------ CRA.151/2003 of ADDL.SESSIONS COURT, KOTTAYAM ST.4352/2000 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- TOMY, S/O.VAKKACHAN, KALATHIL HOUSE, KARIKKAD BHAGOM, THANNEERMUKKOM VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.JAMES KURIAN RESPONDENT(S): COMPLAINANT. --------------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO. 666.04 IN CRL.R.P.163/04 DISMISSED 4/6/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.163 OF 2004 --------------------------------------------- Dated 4th June 2010 O R D E R Petitioner is challenging the concurrent conviction and sentence for the offence under Section 292 (2)(a) and(c) of Indian Penal Code, in this revision. Prosecution case is that on 17/10/2000 at about 5.30 p.m while on patrol duty PW2 Sub Inspector along with PW1 Head Constable reached the shop of petitioner near Anaswara Theatre, Thirunakkara, Kottayam. They found several obscene books in the shop for sale. Under Ext.P1 seizure mahazar Mos.1 to 3, 51 copes of three different publications were seized. Petitioner was arrested and MO.4 currency notes worth Rs.427/- found with the petitioner, being CRRP 163/04 2 the value of the obscene books sold, were seized on the allegation that petitioner committed the offence under Section 292 (2)(a) and(c) of Indian Penal Code. Petitioner pleaded not guilty. Defence taken was that petitioner used to supply lemon juice to the Constables in the police station and on the ill fated day, at about 5.30 p.m, he was called to the police station and made to stand there and was released only on the next day and the false case is foisted. According to the petitioner he was not engaged in sale of Mos.1 and 2 series of books. 2. Prosecution examined Pws.1 and 2 and marked Ext.P1 and P2 and identified Mos.1 to 4. Petitioner did not adduce any evidence. Learned Magistrate on the evidence of Pws.1 and 2 found that petitioner was in possession CRRP 163/04 3 of Mos.1 to 3 publications which are obscene and he was in possession of the same for the purpose of sale and he thereby committed the offence under Section 292 (2)(a) and(c). Petitioner was convicted and sentenced to simple imprisonment for two months for the said offence. It was confirmed in appeal. Argument of the learned counsel is that even though seizure was from a shop near to Anaswara Theatre and that too at about 5.30 p.m, no independent witness was examined and the alleged seizure was not in the presence of an independent witness and in such circumstances, evidence of Pws.1 and 2 should not have been accepted to convict the petitioner. Learned counsel also argued that in any case, the sentence awarded is excessive and considering the fact that the incident was in 2000, CRRP 163/04 4 sentence may be modified. 3. Though in Ext.P1 seizure mahazar, no independent witness signed as an attesting witness, evidence of Pws.1 and 2 were properly appreciated by the learned Magistrate and learned Sessions Judge. I had gone through the evidence of PWs.1 and 2. Nothing was brought out to disbelieve their version except a suggestion that petitioner used to supply lemon juice to the police station and on that evening he was called to the police station and made to stand and released him on bail only on the next day. Though it is contended that case is foisted, no reason was even suggested why police should do the alleged acts, and that too in the light of the suggestion that petitioner is regularly, supplying lime juice to the police station and that too when the CRRP 163/04 5 shop is near to the police station. There is no case that either the Sub Inspector or any other police constable have any reason for having enmity with the petitioner to foist the case. In the light of the evidence, I find no reason to interfere with the findings of the courts below that petitioner was in possession of Mos.1 to 3 series of publications for sale. 4. Learned Magistrate and learned Sessions Judge found that Mos.1 to 3 contained obscene materials. That aspect was not challenged. In such circumstances, I find no reason to interfere with the conviction, for the offence under Section 292 (2) (a) and(c) of Indian Penal Code. 5. Then the question is regarding the sentence. Section 292 provides for a sentence of imprisonment which may extend to two years CRRP 163/04 6 and fine which may extend to rupees two thousand in the event of first conviction and imprisonment which may extend to five years and fine which may extend to rupees five thousand in the event of subsequent conviction. There is no case for the prosecution that petitioner was convicted earlier. In such circumstances, sentence as provided is, imprisonment which could be upto two years and fine which may extend to rupees two thousand. Even though fine is mandatory under Section 292 (2)(a), learned Magistrate has not awarded any fine. Instead, petitioner was sentenced to imprisonment for two months. The incident was in 2000. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment for fifteen days and fine of rupees two thousand CRRP 163/04 7 and in default simple imprisonment for fifteen days. Revision is allowed in part. Conviction of the petitioner for the offence under Section 292(2)(a) and(c) of Indian Penal Code is confirmed. Sentence is modified and petitioner is sentenced to simple imprisonment for fifteen days and fine of Rs.2,000/- (Rupees Two thousand only) and in default simple imprisonment for fifteen days. Petitioner is directed to appear before the learned Magistrate on 2/7/2010. Judicial First Class Magistrate-III, Kottayam is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.