Abdul Rasheed vs State of Kerala

V. Ramkumar, J.—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

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(B) 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, an obscene blue film video cassette depicting a man and a woman in a completely nude posture indulging in carnal intercourse appealing to the prurient interests of the viewers and arousing corrupt and lascivious feelings of persons who chanced to view the video cassette. The accused has thereby committed offences punishable u/s 292(2)(a) and (b) I.P.C.

THE TRIAL

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. P1 to P3 and a video cassette as MO1.

After the close of the prosecution evidence the accused was questioned u/s 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 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.

The revision petitioner/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. Eventhough the revision petitioner preferred an appeal before the Sessions Court, Thrissur as Criminal Appeal No. 218 of 1998, the same was dismissed confirming the conviction entered and the sentence passed, as per judgment dated 31-5-2000. Hence, this Revision.

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

THE DEFENCE CONTENTION

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 Register kept by the Methala Panchayath. No attempt has been made to prove the same. There is no evidence to show that MO1 video cassette was meant for hire, public exhibition or distribution or circulation. P.W. 5 the Sub Inspector has no case that at the 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 Kerala - 1989 (2) KLT 809. The object of the contents of the cassette is to eradicate the evils of prostitution and aids and is, therefore, of medical and educational value for which video is a medium of expression. Hence, the cassette will not come within the purview of Sec. 292 I.P.C. Vide Dr. Promilla Kapur Vs. Yash Pal Bhasin and others, . For judging the question of obscenity the judge in the first place should try to place himself in the position of the author and examine the matter from the perspective of the author after going through the entire work. Then only it can be decided whether the work in question is obscene or not. (Vide Samaresh Bose and Another Vs. Amal Mitra and Another, . The conviction recorded by the courts below overlooking these vital aspects cannot be sustained.

JUDICIAL EVALUATION

I am afraid that I cannot agree with the above submissions, P.W. 1 (Raveendran) is a person running a stationary shop near "Ikkas Videos" at T.K.S. Puran. He is an attester to Ext. P1 search list prepared by P.W. 5. He, however, turned hostile to the prosecution by deposing that he did not see the police seizing any blue film cassette from Ikkas Videos. P.W. 2 (Siddhique) is a person conducting a ready made shop near Ikkas Videos. He was cited as an eve witness to the search and seizure. He also mined hostile to the prosecution. P.W. 3 (Submramonian) was cited as another witness to the search and seizure of the video cassette in question. He also turned hostile to the prosecution. P.W. 4 (Raju) was the police constable who accompanied the Sub Inspector of Police. Kodungallur on law and order patrol duty on 22-9-1996. He supported the prosecution. P.W. 5 (Renjan) was the Sub Inspector of Police. Kodungallur who detected the offence. He proved Ext. P1 search list, Ext. P2 search memorandum and Ext. P3 F.I.R. He also proved MO1 video cassette seized under Ext. P1 search list.

It is true that P.Ws. 1 to 3 who are the independent witnesses to the search and seizure of MO1 Video Cassette turned unfriendly to the prosecution. But then such independent witnesses turning disloyal to the prosecution is not a noval phenomenon. Courts are not unfamiliar with such dishonest persons who are prepared to mortgage their conscience with a view to salvage their fellow trader. Courts very often come across such witness who turn out to be cunning performers in the witness box. The hostility exhibited by such witnesses cannot throw overboard a prosecution which is otherwise true and genuine. If the testimony of the official witnesses is blemishless and free from suspicion and inspires confidence, the hostility shown by ill-motivated independent witnesses is of no consequence. (Vide Sivaraman v. State of Kerala - 1981 KLT (SN) 9, Suresh Vs. State , Tahir Vs. State (Delhi), , Balbir Singh Vs. State, , Sahib Singh Vs. State of Punjab, and Sama Alana Abdulla Vs. State of Gujarat, .

Going by the credible testimony of P.Ws 4 and 5 it has been clearly established that the accused was conducting the business of letting on hire video and audio cassettes kept for hire in the shop by name "Ikkas Videos". P.W. 5 took MO1 cassette bearing the name "Have a nice day" from the racks and played it on the cassette player and viewed the same in the T.V. monitor to find a man and a woman completely naked indulging in carnal intercourse in various postures in a manner appealing to the lascivious and prurient interests of the viewers and tending to deprave and corrupt persons who were likely to see the matter embodied in the video cassette. P.W. 5 seized the cassette under Ext. P1 search list in which he has described what he has viewed.

Sec. 292 I.P.C. reads as follows:

(292. Sale, etc. of obscene books etc. (1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items), the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it).

((2)) Whoever -

(a) Sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire distribution, public exhibition or circulation, makes produces or has in his possession any obscene book, pamphlet, paper, drawing, painting representation or figure or any other obscene object whatsoever, or

(b) imports, exports or conveys an obscene object for any of the purposes aforesaid, or knowing or having reason to belief that such object will be sold, let to hire distributed or publicly exhibited or in any manner put into circulation, or

(c) takes part in or receives profits from any business sin the course of which he knows or has reason to belief that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or

(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person or

(e) Offers or attempts to do any act which is an offence under this section.

Shall be punished (on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second of subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend in five thousand rupees)

(Exception - This section does not extend to--

(a) any book, pamphlet, paper, writing, drawing, painting representation or figure --

(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or

ii) which is kept or used bona fide for religious purposes;

(b) any representation sculptured, engraved painted or otherwise represented on or in -

(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or

(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose)

Thus, in order to attract sub-section (2) of Section 292 it is enough if a person sells, lets for hire, distributes, publicly exhibits or in any manner puts into circulation or has in his possession for the purpose of sale, hire distribution public exhibition or circulation any obscene representation or object. If such representation or object is lascivious or appeals to the prurient interests or its effect, if taken as a whole, is such as to tend to deprave or corrupt persons who are likely to see or hear the matter contained or embodied in such representation or object, such a person need not necessarily be the owner or occupier according to the panchayath records. It is sufficient enough if such person is found in management of the business of hiring the cassette kept for circulation in the premises. P.Ws 4 and 5 who had viewed MO1 cassette have vividly described what they saw on the T.V. screen taken by the accused was one of total denial which in the circumstances of the case, cannot be accepted. The learned Magistrate who tried the revision petitioner has also observed in paragraph 9 of the judgment that she herself played the cassette with the help of a video cassette recorder and a T.V. monitor and was convinced about the obscene contents of MO1 cassette.

It may be true that mere possession of an obscene cassette by itself mat not amount to an offence punishable u/s 292(2) I.P.C. But is all depends upon the circumstances under which a person is found to be in possession of such obscene material. In Moidu''s Case - 1989 (2) KLT 809 all that was proved was that a person was found standing in a public place with two cassettes in a bag and those cassettes were after his apprehension by the police, found to contain obscene scenes. If from the facts and circumstances of a given case it is revealed that a person is in possession of obscene material meant for satisfying his fugitive passion for sec, and the circumstances do not suggest that he had any mercenary interest in possessing such obscene material, it could then be legitimately concluded that such material is not obscene so as to expose the person to punishment. But here in the case on hand, the accused was found managing a video shop wherein MO1 obscene cassette containing a blue film evidently kept for lure to the potential customers, was found. In such circumstances, it cannot be said that the possession of the cassette was without the requisite mens rea or that it and does not attract the ingredients of the offence punishable u/s 292 I.P.C.

Eventhough the word "obscene" has not been defined in the I.P.C. the said expression has been the subject of judicial interpretation at the hands of the Apex Court and other Courts. The word obscene means what is offensive to modesty or decency and which gives rise to emotions, nudeness, filthiness and repulsiveness. The real test of obscenity is whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands the object of the sort may fall. But then the perspective of the author alone is not decisive in evaluating whether a given work is obscene or not. Even the certificate issued by the Censor Board under the Cinematograph Act, 1952, does not give immunity to a celluloid film from obscenity. In other words, certification by the Censor Board does not vaccinate the film against obscenity. The Court will have to examine the film or other object, book, material or representation for the purpose of evaluation of obscenity for which the criterion is whether the work in question is lascivious or appeals to the prudent, lewd, lecherous, lustful or satyric instincts of the reader of the viewer. Raj Kapoor and Others Vs. State and Others, . Unless the court personally examines the work and evaluate the degree of obscenity, if any, applying the well settled tests, it cannot be said that there is primary or first hand evidence before court so as to enable the court to record a finding either way. It is not enough that the court merely peruses the description or the appearance or the contends of the work in question as incorporated in a search list or seizure mahazar because, in such a case the court would be violating the rules of primary of evidence as contained in Secs. 60 and 61 of the Evidence Act. The trial court, in this case, had viewed MO1 cassette using a cassette player and a monitor and was satisfied that the contents of the cassette are obsence.

By no stretch of imagination could it be said that the contents of MO1 cassette as narrated by P.Ws 4 and 5 and as recorded in Exts. P1 and P3 is a matter of medical of educational value or that it was intended to eradicate the evils of prostitution and aids. Equally misconceived is the contention that the charge against the revision petitioner is vague or groundless. Applying the tests laid down in the various judicial pronouncements, I have no hesitation to conclude that MO1 video cassette contains obscene material sufficient to attract the offence punishable under Sec. 292 I.P.C. The conviction was thus rightly recorded against the revision petitioner and the same is confirmed. What now survives for consideration is the question of adequacy or otherwise of the sentence imposed on the revision petitioner. Having regard to the activity of hiring obscene cassettes containing blue films to the customers who are likely to be corrupted by viewing the same, the sentence of simple imprisonment for 3 months and a fine of Rs. 1,000/- imposed by trial court and as confirmed by the lower appellate court cannot be said to be excessive of disproportionately harsh so as to warrant interference by this court.

In the result, this Revision fails and is accordingly dismissed confirming the conviction entered and the sentence passed against the revision petitioner.