IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Crl.Rev.Pet.No. 187 of 2000() ----------------------------- CRA.171/1997 of SESSIONS COURT, KOLLAM CC.203/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... REVN. PETITIONER(S):APPELLANT/ACCUSED --------------------- SREEKUMAR, S/O.SADASIVAN PILLI, RESIDING AT CHINGELI CHARUVILA PUTHEN VEEDU, KADAKKAL MURI, KADAKKAL VILLAGE, KOLLAM. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.KRISHNA PRASAD. S RESPONDENT(S): /RESPONDENT/COMPLAINANT --------------- THE STATE OF KERALA,. REP. BY THE SUB INSPECTOR OF POLICE, KADAKKAL, KOLLAM. BY PUBLIC PROSECUTOR SHRI AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, JJ. -------------------------------------- Crl.R.P.No.187 of 2000 -------------------------------------- Dated this the 14th day of November, 2008. ORDER Revision petitioner faced trial in the court of Judicial First Class Magistrate-II, Kottarakkara in C.C.No.203 of 1996 for offence punishable under Section 293 of the Indian Penal Code (for short, 'the Code'). Case is that on 17.1.1996 at about 5 p.m. revision petitioner exhibited obscene books which are lascivious in nature and appealed to the prurient interest of the students of the High School nearby. Obscene books are said to have been exhibited in Kumar Bakery in building No.99/KP VII. Learned Magistrate found the revision petitioner guilty, convicted and sentenced him to undergo rigorous imprisonment for one year and payment of fine of Rs.1,000/-. In appeal, conviction was confirmed but the substantive sentence was modified as simple imprisonment for two months. Revision petitioner is still aggrieved and preferred this revision. 2. Heard both sides. 3. It is contended by the learned counsel for revision petitioner that there is no evidence to show that revision petitioner was employed in the shop in question and that at any rate, it is not shown that he exhibited or sold or attempted to sell the obscene books to students as alleged. According to learned counsel, none of the witnesses examined have witnessed the alleged seizure. Crl.R.P.No.187/2000 2 4. Case is that PW5, Sub Inspector while on patrol duty got information about exhibition of obscene books in the shop in question for sale to the students of nearby High School. He reached the place at 5 p.m. and seized MO1 series and MO2 series from Kumar Bakery. Ext.P1 is the mahazar for seizure. PW1, the Headmaster of the adjoining High School and PW2 are the attestors in Ext.P1. Though, PW2 did not support the prosecution in full, he admitted signing Ext.P1. PW1 deposed that he witnessed the seizure of MO1 series and MO2 series from the shop in question by the police on the relevant day and time. He identified MO1 series and MO2 series. PW3 is Police Constable who is said to have accompanied PW5 on patrol duty for the alleged seizure. PWs 3 and 5 spoke in support of prosecution in tune with PW1 and identified MO1 series and MO2 series. PW4 is the Head Constable who is also said to have accompanied PW5 on patrol duty and gave similar evidence. 5. It is contended by learned counsel that none of the neighbouring shop owners are examined. But, that is no ground to disbelieve the evidence of PWs 1 and 3 to 5. It is also to be born in mind that PW1 was the Headmaster of the adjoining High School. Courts below accepted the evidence of PWs 1 and 3 to 5 which I find no reason to interfere in revision. Crl.R.P.No.187/2000 3 6. The next question is whether the appellant is involved in the alleged incident. Though PW5 stated in chief-examination that MO1 series and MO2 series were exhibited in the shop, evidence of PWs 1, 3 and 4 and even the version of PW5 in cross-examination is to the effect that MO1 series and MO2 series were kept along with other weeklies in the shop and as instructed by PW5, revision petitioner produced MO1 series and MO2 series. 7. So far as the nature of MO1 series and MO2 series is concerned, learned Magistrate has observed in the judgment that they are obscene books. That has been accepted by learned Sessions Judge. I find no reason to interfere with that finding. 8. As regards the involvement of the revision petitioner is concerned, though PW5 said that the shop belonged to the appellant, no evidence in that line is produced. PW5 has not verified the licence for the shop or other document to show that it belonged to the revision petitioner. On the other hand, going by the version of PW1, the shop belonged to one Chandran Chettiar and revision petitioner was only a salesman. Thus, evidence is to the effect that revision petitioner was a salesman of the shop in question. In fact, when questioned under Section 313 of the Code, revision petitioner also claimed that he is a salesman of that shop. Crl.R.P.No.187/2000 4 9. It is in evidence that revision petitioner produced MO1 series and MO2 series. Courts below found from the evidence that revision petitioner was the salesman of the shop in question. If that be so, the revision petitioner had control and possession of MO1 series and MO2 series. 10. Since MO1 series are nine copies of the same book and MO2 series are two copies of another book, it is difficult to think that revision petitioner had kept the same for his personal use. This has been taken note of by the courts below as well. Moreover, those books were kept along with other weeklies in the shop. Hence, the only inference possible is that it was kept for sale. 11. So far as offence under Section 293 of the Code is concerned, it must be shown that revision petitioner sold, let to hire, distributed, exhibited or circulated the obscene books to any person under the age of 20 years or, offer or attempted to do so. In this case, nobody has seen revision petitioner selling or circulating MO1 series and MO2 series to anybody under the age of 20 years. There is no evidence to show that revision petitioner had made any attempt to do so. Mere fact that a High School is situated near the shop is not a sufficient reason to warrant inference that MO1 series and MO2 series were sold, let to hire, distributed or circulated to any person under the age of 20 years Crl.R.P.No.187/2000 5 or it was attempted to be done so. But, there is no evidence to show that revision petitioner had kept MO1 series in the shop for sale or circulation. Therefore, the act of revision petitioner is punishable under Section 292 of the Code and hence the conviction of the revision petitioner is to be altered to one under Section 292 of the Code. 12. So far as the sentence is concerned, learned Sessions Judge modified the sentence to simple imprisonment for two months. I stated from evidence that revision petitioner is only an employee of the shop in question though he was in control and possession of MO1 series and MO2 series. While considering the sentence to be awarded to the revision petitioner, that he was only an employee of the shop has to be taken into account. It is not shown that revision petitioner is involved in any other case. He has been fighting this case from 1996 onwards. Counsel for revision petitioner tells me that revision petitioner was aged 22 years at the relevant time. In these circumstances, I am inclined to think that simple imprisonment till the rising of court and fine of Rs.2,000/- will be sufficient to meet the ends of justice. Resultantly, revision petition is allowed in part in the following lines:- Crl.R.P.No.187/2000 6 Conviction of the revision petitioner is altered from Section 293 to 292 of the Code. Sentence is modified as simple imprisonment till the rising of court and fine of Rs.2,000/- (Rupees Two thousand only) and, in default of payment of fine, to undergo simple imprisonment for one month. Revision petitioner shall surrender in the trial court on 20.12.2008 to receive the sentence. Bail bond is cancelled. Crl.M.P.No.1066 of 2000 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.187/2000 7 Thomas P.Joseph, J. Crl.R.P.No.187 of 2000 ORDER 14th November, 2008