In this Revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in S.T. No. 5437 of 1996 on the file of the J.F.C.M., Kodungallur, challenges the conviction entered and the sentence passed against him concurrently by the courts below for an offence punishable under Sec. 292 (2) (a) and (b) I.P.C.

The Prosecution Case

2. The case of the prosecution can be summarised as follows:-

On 22-09-1996 at about 5.15 p.m. in the shop run under the name and style of "Ikkas Gents Corner", "Ikkas Videos and Audios" bearing building No. 54/53 (8) of Methala Panchayat in T.K.S. Puram Desom within the limits of Kodungallur Police Station, the accused was found in possession for sale/ hire/distribution of obscene blue film video cassette depicting a man and woman in a completely nude posture indulging in carnal intercourse appealing to the prurient interests of the viewers and arousing corrupt and sexual feelings of persons who chanced to view the video cassette. The accused has thereby committed offences punishable under Section 292 (2) (a) and (b) I.P.C.

The Trial

3. On the accused pleading not guilty to the charge framed against him by the learned Magistrate for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined five witnesses as P.ws 1 to 5 and got marked three documents as Exts.P-1 to P-3 and a video cassette as M01.

4. After the close of the prosecution evidence the accused was questioned under Section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. The stand taken by him was one of total denial. He stated as follows:-

"He is not the owner of the shop in question. He had gone there for the purpose of c cleaning a marriage cassette. While so he was falsely implicated in the case on the footing that he was the owner of the shop. That shop is not a video library. It is actually a service centre. He is innocent".

5. The accused did not adduce any defence evidence when called upon to do so. The learned Magistrate, after trial, as per judgment dated 28-8-1998 found the revision petitioner guilty of the offences and sentenced him to simple imprisonment for three months and to pay a fine of Rs. 1,000/- and on default to pay the fine to suffer simple imprisonment for one month. Even though the revision petitioner preferred an appeal before the Sessions Court as Criminal Appeal No. 2180f1998, the same was dismissed confirming the conviction entered and the sentence passed, as per judgment dated 31-5-2000. Hence, this Revision.

6. I heard Advocate Smt. A.C. Devi, the learned counsel appearing for the revision petitioner and Advocate Sri K.S. Sivakumar, the learned Public Prosecutor who defended the State.

The Defence Contention.

7. The learned counsel appearing for the revision petitioner made the following submissions in support of the Revision:-

All the independent witnesses to the search and seizure have turned hostile to the prosecution. The charge which does not specify the representation which is allegedly obscene and which therefore does not reveal the obscenity, is defective and groundless. The prosecution has failed to prove that the accused was either the owner or occupier of the shop room in question. The said fact could have been proved by producing the occupancy 160 register kept by the Methala Panchayath. No attempt has been made to prove the same. There is no evidence to show that M01 video cassette was meant for hire, public exhibition or distribution or circulation. P.W.5 the said Inspector has no case that time of detection the cassette was being exhibited or being circulated among the public. Mere possession of an obscene cassette cannot by itself attract the offence punishable under clause (a) or (b) of Section 292 (2) I.P.C. Vide Moidu v. State of Kerala1. The object of the cassett