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2014 DIGILAW 1519 (BOM)

Francisco Colaco v. State of Goa

2014-07-11

A.R.JOSHI

body2014
Judgment : 1. Heard learned Counsel for the applicant. Also heard learned Prosecutor for the State. 2. This is the Criminal Revision Application preferred by the petitioner/original accused challenging his conviction in criminal case no.148/S/2004/D passed by Judicial Magistrate, First Class, D-Court, Margao for the offences punishable under Sections 292 of Indian Penal Code and Section 7 of Cinematography Act. For the offence punishable under Section 292 of Indian Penal Code, present petitioner/accused was convicted and sentenced to suffer simple imprisonment for two months and directed to pay fine of Rs.2,000/-, in default to undergo simple imprisonment for one month. For the offence under Section 7 of Cinematography Act, he was sentenced to pay fine of Rs.5,000/-and in default to undergo simple imprisonment for one month. This judgment and order was challenged before the first appellate Court in Criminal Appeal no.44/2012. Said Criminal Appeal was finally heard and was dismissed by learned Additional Sessions Judge, South Goa, Margao vide order dated 29/10/2013. 3. Being aggrieved by both the above orders by which the conviction of the present petitioner/accused was confirmed for the offences as mentioned above, the present criminal revision is preferred. 4. Prior to going to the arguments advanced on behalf of the applicant, the case of the prosecution can be narrated in nutshell as under: On 14/07/2003, on prior intimation, the raid was conducted by the police officers along with the pancha witness at one Video Parlour. The information was that some obscene video CDs were being displayed without there being any licence. During the raid, the present petitioner/accused was found displaying the CD on the TV. Some 20 to 25 persons who were watching the said TV were also accosted. During the search of the said premises four other DVDs were also found. The TV, video recorder and the DVDs were taken charge of under the panchanama. Offence was registered against the present applicant and was put to trial. After examination of four witnesses he was convicted. The said conviction was upheld by the first appellate Court as mentioned above. 5. The four prosecution witnesses are PW1, Police Sub-Inspector, raiding party member who lodged FIR after conclusion of the raid. Offence was registered against the present applicant and was put to trial. After examination of four witnesses he was convicted. The said conviction was upheld by the first appellate Court as mentioned above. 5. The four prosecution witnesses are PW1, Police Sub-Inspector, raiding party member who lodged FIR after conclusion of the raid. PW2 is a pancha witness, PW3 is one of the viewers, who apparently gave the evidence that on the relevant day he had entered the video parlour and had viewed the TV on which some video CD was being played and it was in fact showing the obscene material. PW4 is the Investigating Officer, who had recorded the statement of the witnesses and filed the charge sheet. 6. During the arguments, learned Counsel for the applicant took this Court to the substantive evidence of all the four prosecution witnesses. However, his main thrust of the argument was that there was failure on the part of the prosecution to establish that the contents of the CD which was seized during the said raid, were obscene, which can attract provisions of Section 292 of Indian Penal Code and Section 7 of Cinematography Act. In fact, this is the basic requirement which should have been established by the prosecution in order to establish the guilt of the applicant/accused inasmuch as though apparently accused had mentioned that whatever contained in the CD seized by the prosecution is accepted to him, still it is his categoric defence that there was nothing obscene or objectionable in the said CD, so as to attract Section 292 of Indian Penal Code and Section 7 of Cinematography Act. It is factual position that the said CD has not been sent for any expert analysis as to find out whether in reality it contained any obscene material which will attract the provisions of relevant section as dealt above. Even there is nothing on record to show that the trial Court had arranged for playing the said CD during recording of the evidence and then coming to the conclusion as to contents of the said CD, attracting the provisions of Section 292 of Indian Penal Code and Section 7 of Cinematography Act. 7. Even there is nothing on record to show that the trial Court had arranged for playing the said CD during recording of the evidence and then coming to the conclusion as to contents of the said CD, attracting the provisions of Section 292 of Indian Penal Code and Section 7 of Cinematography Act. 7. On the above aspect, learned Public Prosecutor for the State submitted that even during the trial the prosecution had filed an application before the Court for playing the said CD in the Court so that the trial Court can ascertain the contents of the same and in fact the said playing can be in the presence of the rival parties and their Counsel. In the opinion of this Court when such application was in fact made before the trial Court it should have been heard and such type of playing should have been conducted before the Court in order to establish the contents of said CD attracting the relevant penal provisions. However, unfortunately that has not been done and for this the explanation now given by the learned Public Prosecutor that at that juncture the accused accepted the contents of the CD. In fact, whether or not the accused accepted the contents of the particular CD, it was must for the prosecution to initially establish that the contents of the CD are of such nature to attract the provisions of Section 292 of Indian Penal Code and Section 7 of Cinematography Act. Mere acceptance by the accused as to the contents of the CD, with still emphasizing that the CD was not containing any obscene material, would not have helped the prosecution to establish the offences charged. In the opinion of this Court the trial Court had in fact not appreciated this material and accepted the word by the police officer and the panchas and also one viewer PW3 when they mentioned that the contents of the said CD were obscene. On this aspect, it must be mentioned that statement of PW3 was recorded by police after three days of the incident. Moreover, though this witnesses have mentioned that the contents of the CD were of obscene nature there was categorical cross-examination of these witnesses and it is consistent stand on behalf of the accused that the contents were not obscene. On this aspect, it must be mentioned that statement of PW3 was recorded by police after three days of the incident. Moreover, though this witnesses have mentioned that the contents of the CD were of obscene nature there was categorical cross-examination of these witnesses and it is consistent stand on behalf of the accused that the contents were not obscene. When such is the state of the evidence before the trial Court it was must for the trial Court to ascertain with authenticity that the contents of the CD are of such nature so as to attract the penal provisions for which the accused was charged. 8. Even the first appellate Court had also ignored this aspect which was ignored by the trial Court as to non-establishment of the contents of the said CD and, as such, there is definitely a miscarriage of justice and which is required to be cured under the revisional jurisdiction of this Court when in fact the ingredient of the offence has not been established by the prosecution. For this reason, the present revision must succeed and the same is accordingly allowed. The impugned conviction of the applicant for the offences punishable under Section 292 of Indian Penal Code and Section 7 of Cinematography Act, is quashed and set aside. The fine amount, if already paid, be refunded back to the petitioner.