Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 675

IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S.DIAS, J.
Dawood, S/o. Kabeer Rowther – Appellant
Versus
State Of Kerala – Respondent
Crl.Rev.Pet No. 3 of 2011
Decided on : 25-09-2023

Advocates:
Advocate Appeared:
For the Appellant : SRI.VINOD KUMAR.C
For the Respondent: SR PP SEETHA S

Point of Law: It is elementary in criminal jurisprudence that onus of proof is on prosecution to prove that accused has committed offence.

Headnote:
Indian Penal Code, 1860 - Section 292 (2) (e), (2)(a) - Code of Criminal Procedure, 1973 - Section 313, 397 to 401 – Imports, exports or conveys any obscene object - Obscene books - Appeal against conviction - Aggrieved by conviction and sentence, revision petitioner preferred Crl.A – His mere presence in shop room on uneventful evening is insufficient to hold that he was in possession of MOs 1 to 5 books. (Para 28)
Finding of the Court: No material is placed on record to corroborate that C. N. Saraswathy had given shop room to accused - His mere presence in shop room on uneventful evening is insufficient to hold that he was in possession of MOs 1 to 5 books - Onus of proof was on prosecution to establish link between accused and shop owner - Having failed to do so, irresistible conclusion is that prosecution has failed to prove a vital aspect, which is detrimental to prosecution – Court conclude that courts below have fallen in error in holding revision petitioner guilty, and for convicting and sentencing him for above offence.
Result: Petition is allowed.

ORDER :

The revision petition is filed challenging the legality and the propriety of the judgments of the Court of Session Palakkad Division, in Crl.A. No.206/2009, and the Judicial First Class Magistrate-III, Palakkad, in S.T.No.1921/2007, convicting and sentencing the revision petitioner for the offence punishable under Section 292 (2) (e) of the Indian Penal Code, 1860.

Relevant facts:

2. The prosecution case is that, on 17.03.2007, at about 9.00 p.m., the Sub Inspector of Police (PW4) ? of the Palakkad Town South Police Station ? conducted a search in the shop room of the revision petitioner (accused) and found him displaying obscene books (MOs 1 to 5) for sale. The Police seized the books and registered the crime. PW4, after investigation, filed the final report before the Trial Court alleging the revision petitioner to have committed the offence under Section 292(2)(a) of the Indian Penal Code (‘IPC’).

Trial:

3. The prosecution examined PWs.1 to 4 and marked Exts P1 to P3 and MOs.1 to 5 in evidence. The revision petitioner denied the incriminating circumstances put against him by the prosecution under Section 313 of the Code of Criminal Procedure, 1973 (‘CrPC’).

Trial Court judgment:

4. The Trial Court found the revision petitioner guilty and convicted him for the offence under Section 292(2)(a) of the IPC, and sentenced him to undergo simple imprisonment for three months.

5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.A. No.206/2009 before the Appellate Court.

Appellate Court judgment:

6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, confirmed the conviction but reduced the sentence to simple imprisonment for a period of 15 days and directed the revision petitioner to pay a fine of Rs.2,000/-, and in default to undergo imprisonment for a further period of 15 days.

7. It is assailing the above judgments that the revision petition is filed.

8. Heard; Sri. C. Vinod Kumar, the learned counsel appearing for the revision petitioner and Smt. Seetha. S, the learned Senior Public Prosecutor appearing for the respondent – State.

9. The learned Counsel for the petitioner argued that the courts below have gone wrong in holding the revision petitioner guilty for the offence under Section 292(2)(a) of the IPC mainly on two grounds: (i) the prosecution has failed to prove that the shop room from where Mos.1 to 5 books were allegedly seized was in the possession of the revision petitioner; and (ii) the prosecution has also not proved that MOs.1 to 5 books are obscene. The learned counsel relied on the decision of this Court in Konnadan Abdul Gafoor v. State of Kerala [2016(3) KHC 478] to bolster his submission on the first ground. He urged that the revision petition be allowed.

10. The learned Public Prosecutor defended the impugned judgments and submitted that even though PWs.1 to 4 have not testified that MOs.1 to 5 books are obscene, the courts below have examined and found them to be obscene. Therefore, this Court may not interfere with the impugned judgments by exercising its revisional power.

11. The points are:

(i) Is not the onus of proof on the prosecution to prove that MOs.1 to 5 books are obscene?

(ii) Is not the prosecution bound to prove that the accused was in possession of the shop room from where MOs.1 to 5 books were seized?

12. It is trite that the revisional jurisdiction of this Court is to be exercised sparingly to correct orders which are manifestly perverse and wholly unreasonable or when there is non-consideration of relevant material or there is a palpable misreading of the records. The power is in the nature of supervisory jurisdiction. Merely because another plausible view is possible, the revisional power under Sections 397 to 401 CrPC shall not be exercised.

Point No.1:

13. The prosecution allegation is that the Sub Inspector of Police and the Head Constable ? PWs.1 and 4 ? on getting information that the accused was selling obscene book