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Madhya Pradesh High Court

The State Of Madhya Pradesh vs Raju on 27 August, 2019

Author: Vivek Rusia

Bench: Vivek Rusia

-1-                            MCRC No.1595/2017

         HIGH COURT OF MADHYA PRADESH,
                   BENCH AT INDORE
                   MCRC NO.1595/2017
        (State of M.P vs.Raju s/o Govardhan Sindhi)
27.08.2019 (INDORE):
      Shri Vikas Yadav, learned Govt. Advocate for the
applicant/State.
      Shri Jayesh Yadav, learned counsel for the respondent.
      Heard.
                         ORDER

Applicant/State has filed the present applicaton under section 378(3) of the Cr.P.C seeking leave to file appeal against the judgment dated 29.09.2016 passed by learned JMFC, Jaora, district Ratlam whereby the respondent has been acquitted under section 292A of the IPC read with section 67 of the Information Technology Act, 2000.

2. As per prosecution story on 21.07.2012 PW/5 R.S.Jadav, Sub Inspector, Police Station Jaora on a secret information conducted a raid in Sai mobile shop owned and run by the respondent. He found that the respondent is displaying obscene videos in his computer to the general public which is an offence and seized the LCD and CPU in presence of the Panch witness PW/1 & PW/2. The seized articles were sent to the IT department of Polytehnic College, Jaora for verofication. Khajan Singh Chouhan (PW/6) submitted a report Ex.P/10 that the E-drive of the computer contains certain folders full of obscene photos and -2- MCRC No.1595/2017 videos. After completing investigation Challan was filed under section 292A IPC read with section 67 of the IT Act..

Learned trial Court framed the charges against the applicant. He abjured the guilt and pleaded for trial.

In support prosecution has examined Panch witnesses Sher Mohammad (PW/1) and Mujmil (PW/2) but they turned hostile and did not support the prosecution case. Abid Hussain, In-Charge Computer Section, Polytehnic college Jaora who prepared the report Ex.P/10 was examined as PW/3 who deposed that he examined the E-drive of the computer and found obscene material in it. Constable Kamalsingh was also examined as PW/4 who seized the articles and brought to the police station. The Investigating Officer was examined as PW/5 and Khajansingh Chouhan, Faculty, Computer Department, Polytehnic College, Jaora who also inspected the E-drive of the CPU and prepared the report Ex.P/10 along with Abid Hussian was examined as PW/6.

After appreciating the evidence on record, learned trial Court has found that the respondent is the owner of the shop and the hard disk which was seized from his possession contains obscene material but the prosecution has failed to prove that he was using the said obscene material for public display, therefore, he has not committed any offence under sections 292A of the IPC read with section 67 of the IT Act. Hence, the present application by the State seeking leave to appeal against the judgment of acquittal.

Learned Govt. Advocate submits that in view of the evidence of PW/3, PW/4, PW/5 & PW/6 the prosecution has proved that the Laptop & LCD were recovered from the shop of the respondent and those articles were containing obscene material. The accused/respondent was running a mobile shop and transferring the obscene material to the general public in their mobile, therefore, he has been wrongly discharged by the learned trial Court, hence prays for leave to appeal against the judgment of acquittal.

It is correct that prosecution has proved that Laptop and LCD were recovered from the possession of the accused and in the E-drive of the hard disk obscene material was also available, however, to make out an offence under section 292A of the IPC read with section 67 of the IT Act the prosecution is is required to prove that the accused has transferred this obscene material or he has displayed the same to the general public on payment for which no independent witness who were watching the obscene material in the shop in question was examined by the prosecution nor any material has been seized in which the accused has transferred the obscene material to the general public.

In view of the above, I do not find any perversity in the finding recorded by the trial Court. No case for leave to appeal is made out. Accordingly, the application is rejected.

                                       (VIVEK RUSIA)
hk/       Digitally signed by Hari Kumar   JUDGE
          Nair
          Date: 2019.08.28 16:38:46 +05'30'