Abduljakhir Vs the State of Karnataka

THIS CRIMINAL REVISION PETITION IS FILED U/S. 397 R/W. 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENTS AND ORDERS PASSED BY THE I ADDL. DIST. & SESSIONS JUDGE, AT BAGALKOTE SITTING AT JAMKHANDI IN CRL.APL.NO.106/2013 DATED 01.07.2016 THERE BY CONFIRMING THE ORDER PASSES BY PRL. CIVIL JUDGE & I ADDL. JMFC, JAMKHANDI IN CRL.C.NO. 51/2011 DATED 19.09.2013.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

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Heard Sri.Anand R. Kolli, learned counsel for the revision petitioners and Sri.Praveen Y. Devareddyavar, learned High Court Government Pleader for the State/respondent.

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Accused persons who have suffered an order of conviction in CC No.51/2011 dated 19.09.2013 on the file of Principal Civil Judge and I Additional JMFC, Jamakhandi for the offence punishable under Section 292 of IPC and were directed to undergo simple imprisonment for a period of one year and to pay fine of Rs.2,000/- each with default sentence of three months which was confirmed in Crl.A.No.106/2013 dated 01.07.2016 on the file of I Additional District and Sessions Judge, Bagalkot, to sit at Jamakhandi are the revision petitioners.

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Facts in brief which are utmost necessary for disposal of the present revision petition are as under:

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3.1. A complaint came to be lodged with Jamakhandi Town Police by contending that on 03.01.2011, when PSI, Jamakhandi by name Sri.A.G.Joshi was on duty, there was credible information that in a shop situated in Kunchanoor Circle in the name and style of ‘Goufiya mobiles’, there was downloading of obscene and nude films and same were sold to the general public in a sum of Rs.100/- to Rs.150/-.

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3.2. To verify the veracity of such information, Sri.A.G.Joshi, sent one of his sub staff at about 6.30 p.m. Substaff who visited the shop, got confirmed about the information. Thereafter, there was a raid team formed by Sri.A.G.Joshi comprising of himself, sub-staffs and panch witnesses and all of them raided the shop. They seized the computers which were used for downloading obscene and nude films and a case was registered based on the report given by Sri.A.G.Joshi in Crime No.01/2011.

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After thorough investigation, charge sheet came to

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be filed.

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Presence of the accused persons were secured and

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charges were framed. Accused persons pleaded not guilty and therefore, trial was held.

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After due trial, taking note of the oral testimony of P.W.1 to 9 coupled with the documentary evidence placed on record as Exs.P.1 to 7 and also the material objects as MO.1 to 4, learned Trial Judge convicted the accused persons and sentenced as referred to supra.

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Being aggrieved by the same, accused persons filed

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an appeal before the First Appellate Court.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record, dismissed the appeal filed by the accused persons by considered judgment dated 01.07.2016.

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Being further aggrieved by the same, accused

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persons are before this Court, in this revision.

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Sri.Anand R. Kolli, learned counsel for the revision petitioners reiterating the grounds urged in the revision petition vehemently contended that material evidence placed on record is hardly sufficient to conclude that the accused persons are guilty of the offence under Section 292 of IPC and therefore, order of conviction recorded by the learned Trial Judge confirmed by the First Appellate Court not only suffers from legal infirmity but also impugned judgments are perverse in nature besides factually incorrect.

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He would further contend that material evidence placed on record is hardly sufficient that accused persons are the persons who downloaded the obscene and nude films from the record as there is no proper material evidence placed on record with necessary certificate under Section 65B of the Indian Evidence Act which is mandatory to prove the digital evidence and thus, sought for allowing the revision petition.

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Alternatively, he also contended that in the event, this Court upholding the order of conviction, taking note of the fact that accused persons are now in their middle age group and they have families to maintain and children are dependent

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on their earnings and all the revision petitioners have given up the business of mobile shop and are eking out their livelihood in a decent manner and therefore, sentence of imprisonment may be set aside as they are the first time offenders by enhancing the fine amount reasonably.

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Per contra, Sri.Praveen Y. Devareddiyavara, learned High Court Government Pleader for the State/respondent supports the impugned judgments.

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He would contend that very fact that sub-staff who visited the shop of the complainant and reported that information is credible, raid has taken place and computers have been seized which is marked as MO.1. With the help of MO.1, the revision petitioners had indulged in downloading the obscene and nude films and used to sell the same to the general public in a sum of Rs.100/- to Rs.150/-.

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Therefore, all the ingredients to attract the offence under Section 292 of IPC has been established by the prosecution by placing cogent and convincing evidence on record and thus, sought for dismissal of the revision petition.

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He would further contend that alternate submission

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made on behalf of the revision petitioners cannot be countenanced in law as same would encourage the similarly placed accused persons to indulge in such activities in future besides sending a wrong message to the society and thus, sought for dismissal of the revision petition in toto .

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, following points would arise for consideration:

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1. Whether the revision petitioners makes out a case that impugned judgments are suffering from legal infirmity or perversity and patent factual error and thus, calls for interference?

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2. Whether the sentence is excessive?

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3. What order?

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REG.POINT No.1:

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In the case on hand, admittedly, seizure of the material objects is under the panchanama by head of the raid

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party. Head of the raid party is examined as P.W.1 who did not nurture any previous enmity of animosity as against the revision petitioners herein. Panchanama also stands established by placing necessary oral and documentary evidence on record. The sub-staff who have been part of the raid party have also supported the case of the prosecution.

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Further, seizure of the material object – MO.1 being the personal computer of LG brand would make it clear that the false implication of the accused persons is impermissible and such a valuable computer would not be implanted by the Police only for the purpose of foisting a false case against the accused persons. More so, when there is no previous enmity of animosity nurtured by the head of the raid party as against the revision petitioner.

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Therefore, having regard to the seizure that has taken place and material evidence placed on record being of higher probative value, learned Trial Judge convicted the accused persons for the offence punishable under Section 292 of IPC.

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Moreover, there was no explanation whatsoever placed on record by the accused persons for the alleged false implication at the time of recording the accused statement.

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Learned Judge in the First Appellate Court reappreciated the material evidence on record in the right perspective while upholding the order of conviction and sentence.

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Therefore, having regard to the limited scope of revisional jurisdiction, in view of the principles of law enunciated by the Hon’ble Apex Court in the case of Amit Kapoor v. Ramesh Chander and Another reported in (2012) 9 SCC 460 , this Court does not deem it fit to further interfere with the order of conviction and thus, point No.1 is answered in negative .

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REG.POINT No.2:

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It is submitted on behalf of the revision petitioners that revision petitioners are now middle aged and having respective families to maintain including the children. It is also submitted that all the revision petitioners have stopped the business of mobile shop and they have not involved in any such

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incident thereafter and their conduct is above the board in the society. It is also submitted that revision petitioners are the first time offenders.

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Taking note of these aspects of the matter, setting aside the imprisonment period as ordered by the learned Trial Judge by directing each of the revision petitioners to undergo simple imprisonment for a day till rising of the Court by enhancing the fine amount in a sum of Rs.25,000/- each would meet the ends of justice.

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Accordingly, point No.2 is answered partly in the affirmative.

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REG.POINT No.3:

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In view of the findings of this Court on point Nos.1 and 2 as above, following:

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ORDER

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i. Criminal revision petition is allowed in part.

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ii. While maintaining the conviction of the revision petitioners for the offence punishable under

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Section 292 of IPC, sentence ordered by the learned Trial Judge confirmed by the First Appellate Court is modified by directing each of the revision petitioners to undergo simple imprisonment for a day till rising of the Court and also directed to pay enhanced fine amount of Rs.25,000/- each (Rs.2,000/- + Rs.25,000/- = Rs.27,000) payable on or before 15.04.2025.

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iii. Failing which revision petitioners shall undergo simple imprisonment as ordered by the learned Trial Judge.

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iv. Office is directed to return the Trial Court Records with copy of this order forthwith for issuing modified conviction warrant.

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SD/(V.SRISHANANDA) JUDGE

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KAV CT:PA LIST NO.: 2 SL NO.: 34

Abduljakhir v. the State of Karnataka

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Abduljakhir v. the State of Karnataka

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