Delhi District Court
State vs . Manmeet Singh Bindra on 15 September, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 27/15.
Unique Case ID No. 02405R0030822015.
State Vs. Manmeet Singh Bindra
S/o Sh. Gursharan Singh,
R/o A-94, Sector-40, Noida,
U.P.
Date of Institution : 20.3.2015.
FIR No.163 dated 30.1.2015.
U/s. 376/420/506 IPC.
P.S. Bindapur.
Date of reserving judgment/Order : 08.9.2015.
Date of pronouncement : 15.9.2015.
JUDGMENT
1. The prosecution had chargesheeted accused Manmeet Singh Bindra for having committed the offences punishable u/s. 376/420/506/201/354 IPC & u/s.66/66-C/66-E/67-A I.T. Act.
2. According to the case of the prosecution, the prosecutrix namely 'V' (real name withheld in order to conceal her identity) got acquainted with accused Manmeet through internet in December, 2012 and they became friends. They started meeting each other and the accused expressed his desire to marry her but SC No.27/15. Page 1 of 21 she ignored. The accused then took her to his residence in Noida on 20.10.2013 on the pretext of introducing her to his family and committed forcible sexual intercourse with her there. The accused asked her not to narrate the incident to anybody as they are going to marry each other. Thereafter he had been pressurizing her to have physical relations with her but she always refused. They met again on 17.7.2014. The accused started misbehaving with her in the car and when she resisted, he showed her nude photographs to her which he had clicked by a spy camera on 20.12.2014 and threatened her that if she did not oblige her, he would send these photographs to her house. In this way, the accused took her to Gurgaon and again committed rape upon her. Thereafter, the accused used to call her whenever he wished and used to exploit her sexually after blackmailing her on the basis of her nude photographs. He also used to tell her that he loves her and would marry her.
3. It is further the case of the prosecution that when the prosecutrix told the accused in November, 2014 that now they should marry, he reused to marry her saying that he is already married and was only passing time with her. Thereafter, he used to send threatening messages to her and also uploaded her nude photographs on her own Facebook page as he knew her password. When the prosecutrix saw her own nude photographs on her Facebook book account, she felt immensely ashamed and consumed toilet cleaner in order to end her life. When she regained consciousness in Gandhi Nursing Home, she narrated the entire story to her parents.
SC No.27/15. Page 2 of 214. Further prosecution case is that the prosecutrix sent a typed complaint to the SHO, P.S. Bindapur, on 28.1.2015 through her father as she was herself bed-ridden at that time. On the direction of the SHO, FIR was registered on said complaint on 30.1.2015 and the investigation was entrusted to SI Kusum. She recorded the statement u/s.161 Cr.PC of the prosecutrix and her mother. Meanwhile, the prosecutrix was referred from Gandhi Nursing Home to DDU Hospital and after discharge therefrom, she went home. As she had not completely recovered her medical examination could not be conducted. Ultimately, she was produced in DDU Hospital again on 03.2.2015 and her gynecological examination was conducted. The statement of the prosecutrix u/s.164 Cr.PC was got recorded on 03.3.2015. Accused was arrested from his office in Moti Nagar on 12.2.2015. His mobile phone bearing IMEI No. 865072027553378 and mobile no. 9999688747 was seized by the IO. Accused is stated to have made confessional statement admitting his guilt. The mobile phone of make Samsung having IMEI No. 353019/05/080412/2 and mobile no. 9643827492 of the prosecutrix was seized by the IO. The mobile phone having no. 9654323507 of prosecutrix's sister was also seized by the IO as the accused had sent certain obscene photographs to her also through Whatsapp. The medical examination of the accused was got conducted in DDU Hospital and the exhibits given by the doctor were seized. As it was found that section 66 of the Information Technology Act is attracted to the case, the further investigation was entrusted to Inspector Vijay Pal Singh. He obtained two days police custody of the accused and took him to his residence in Noida. The accused pointed out the bedroom on the second floor of the house where he had raped the SC No.27/15. Page 3 of 21 prosecutrix on 20.10.2013. He also got recovered a laptop of make 'hp' alongwith its charger from the room which were seized by the IO.
5. The accused then led the IO and police party to flat no. 19, U-35-46-47 DLF Phase-III, Gurgaon, stating that he had attempted to commit physical relations with the prosecutrix there also. The father of the prosecutrix handed over to the IO a printout of nude photographs of the prosecutrix and certain messages which had been sent by the accused on the mobile phone of the prosecutrix. The IO obtained the call details record of all the aforesaid mobile numbers. He also seized the Maruti Swift car bearing registration no. DL-9CAC-0560 of the accused. He sent all the exhibits to the FSL for forensic examination. He also recorded statement of the prosecutrix's elder sister. She stated that she had received obscene messages and obscene photographs on her phone from the accused which she transferred to the mobile phone of her father. The prosecutrix had handed over to the previous IO a video CD on 31.1.2015 containing these messages and photographs. Prosecutrix stated that the accused had been pressurizing her to send these nude photographs to him which she used to click in the bathroom while taking a bath.
6. During the course of investigation, it came to be known that the mobile no. 9971847310 was allotted in the name of Bhupinder Singh r/o Geeta Colony, New Delhi. Inquiries were made from him and he stated that this mobile number was being used by his daughter Navneet Kaur. IO summoned Navneet Kaur to the police station and recorded her statement u/s.161 Cr.PC SC No.27/15. Page 4 of 21 who stated that she too had developed friendship with accused through Facebook and provided the SIM Card having aforesaid no. 997847310 to the accused on his request for his use. Thereafter, she got married and snapped her ties with the accused.
7. After culmination of investigation, the IO submitted the Charge Sheet against the accused u/s.376/420/506/201/354 IPC & u/s.66/66-C/66-E/67-A I.T. Act.
8. Upon committal of the case to the court of Sessions, Charge u/s.376 IPC, u/s.354 IPC, u/s.506 IPC and u/s.201 IPC and u/s.66-C/66-E/67-A of the Information Technology Act was framed against the accused on 21.4.2015. The accused denied the charges and hence trial was held.
9. At trial, the prosecution has examined 17 witnesses to bring home the guilt of the accused. The accused was examined u/s.313 Cr.PC on 21.8.2015 wherein he refuted all the incriminating evidence put to him and claimed false implication.
10. It may be noted here that after completion of trial in this case, a supplementary Charge Sheet was filed by the IO before the ld. M.M. which was received in this court on 04.9.2015 upon committal. It mainly contains the FSL result in respect of various mobile phones and accused's laptop which had been seized by the IO during the course of investigation. The Ld. Counsel for the accused made a statement on 08.9.2015 stating that he does not dispute the FSL result and other documents filed alongwith the supplementary Charge Sheet and hence Ld. APP SC No.27/15. Page 5 of 21 made a statement that she does not want to examine any other witness to prove the documents filed alongwith this supplementary Charge Sheet. These statements were made by Ld. Defence Counsel and Ld. APP as both felt that nothing incriminating against the accused is contained in these documents. Hence this court also did not feel any necessity to examine the accused again u/s.313 Cr.PC.
11. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record.
12. The prosecutrix has been examined as PW3. In her examination in chief, she reiterated that she developed friendship with the accused in the year 2012 through chatting on the internet and he proposed to her for marriage in September, 2013 but she did not take the proposal seriously. She further stated that the accused took her to his residence in Noida one day in the month of October, 2013 saying that he wants to introduce her to his parents. But on reaching there, she found that none of his family members was present in the house. She drank the cold drink offered to her by the accused and then accused took her to his bedroom and started misbehaving with her. She lost consciousness as the accused had mixed something in the cold drink and when she regained consciousness, she found that her clothes had been taken off and she was bleeding from her private part. The accused was also naked. She realized that the accused has committed physical relations with her. The accused then told her that since they are going to marry each other, she should not disclose the incident to anybody. She further deposed that SC No.27/15. Page 6 of 21 thereafter accused used to send text messages to her and she used to reply the same. She saw the profile of accused's wife in her Facebook account in the month of January, 2014. She also downloaded the photographs of accused and his wife from Facebook when she showed these photographs to accused, he admitted that he is already married and told her that he was only passing time with her. Thereafter, she started avoiding to reply the text messages of the accused. However, the accused sent her nude photographs on her mobile phone and told her that he had taken these photographs during the incident in her house in October, 2013.
13. She further deposed that the accused started blackmailing her on the basis of those nude photographs and asked her to send him more such nude photographs. She had no option but to oblige him and accordingly she clicked her nude photographs in the bathroom of her house and sent those to the accused through Whatsapp on his mobile no. 9999688747 from her mobile no. 7503069816. The accused used to tell her to either send him her nude photographs or to have physical relations with him and she preferred sending him her nude photographs. The accused also used to threaten her that in case she did not oblige him, he would upload these photographs on the internet and would inform her parents about the same. She further deposed that one day in the month of November, 2014, the accused called her asking her to meet him in Gurgaon or otherwise, he would ruin her. The accused took her in his car to a flat in Gurgaon saying that they have to attend a party in the house of his friend Kamal. However, nobody was present in the flat. The accused locked the SC No.27/15. Page 7 of 21 flat and tried to have sexual intercourse with her but she did not permit him to do so and managed to escape. She did not tell anything to her parents for fear of humiliation as preparations for the marriage of her sister Nimmy were going on in their house at that time. Nimmy's marriage was fixed for 18.1.2015. She further deposed that the accused then uploaded her nude photographs on her Facebook page as he knew the password which had been given to him by her in November, 2013 at his request. The accused had changed the user ID and password of her Facebook account and was operating the same himself. The prosecutrix then received a call from her sister in law (Bhabhi) on 22.1.2015 saying that her nude photographs have been uploaded on her Facebook page. When she herself saw her nude pictures on the Facebook page "lemmetry". She became so much depressed that she consumed acid and became unconscious. She was taken to hospital by her brother and her cousin for treatment. She remained admitted in Gandhi Nursing Home for about 8 to 10 days. She further deposed that the accused had also sent her nude photographs through Whatsapp to her sister Nimmy also from his mobile no. 9971847310. Thereafter, she got typed the complaint Ex.PW1/D and sent the same to the police station through her father. She also proved her statement u/s.164 Cr.PC as Ex.PW3/A. She further stated that her father had handed over the printout of all the text messages received by her from the accused and also all the nude photographs uploaded by the accused on her Facebook page and also the messages and photographs sent by the accused on the mobile phone of her sister to the IO. She proved three of such photographs which have been uploaded by the accused on her Facebook as Ex.PW3/B (colly).
SC No.27/15. Page 8 of 2114. She further deposed that the photographs which had been sent by the accused to the mobile phone of her sister were transferred by her sister to the mobile no. 8882221605 of her father. Her father got developed these photographs as well as the photographs which had been uploaded by the accused on the Facebook page "lemmetry" and got prepared a CD containing all these photographs. She handed over the said CD, the photocopies of printout of text messages and a photograph of accused Manmeet to the IO, which were seized vide seizure memo Ex.PW3/C. She proved the CD as Ex.PW3/D and the photocopies of text messages as Ex.PW3/E (colly). She had also handed over the mobile phone of her sister Nimmy to the IO. She proved the printout of the photographs uploaded by the accused on Facebok page "lemmetry" as Ex.PW3/I (colly). She proved the printout of five photographs sent by the accused on the mobile phone of her sister Nimmy as Ex.PW3/J (colly) saying that photographs at Srl. Nos.1 & 4 were taken by her in their bathroom and photographs at Srl. Nos.2, 3 & 5 have been taken by the accused at the time of committing rape upon her in his house in October, 2013.
15. In the cross examination, she deposed that the accused did not commit any wrong or illegal act with her in his house, when he had gone there alongwith him in October, 2013. She stated that she mentioned in her examination in chief that the accused misbehaved with her and committed forcible sexual intercourse with her in his house on that day as everybody has advised her to depose on the lines of her earlier statements recorded by the police and the Ld. M.M. She stated that her family SC No.27/15. Page 9 of 21 members had themselves incorporated in the complaint Ex.PW1/D that the accused had raped her in his house on that day. She deposed that she had told her parents only about the nude photographs which had been sent by her to the accused and which had been uploaded by him on her Facebook page. She admitted that the complaint Ex.PW1/D was got typed by her parents on their own imagination and she had not gone through its contents before signing it. She stated that the accused had not used force against her at any point of time since the year 2012 when she got acquainted with him. She, however, denied that her mobile phone may have been hacked by somebody who then retrieved her nude photographs from the same and had uploaded on her Facebook page. She also denied that the accused had not asked her to send him her nude photographs and that she never sent him her nude photographs to him through Whatsapp. She also denied that the accused had not sent her nude photographs from his mobile phone on the mobile phone of her sister. She also denied that the accused had not uploaded her nude photographs on her Facebook page. She denied that all these photographs are morphed and not genuine. She denied that the mobile no. 9971847310 was not being used by the accused.
16. She was reexamined by the Ld. APP, in which she denied that the accused had committed forcible sexual relations with her in his house in October, 2013 or that she had got complaint Ex.PW1/D typed herself or that its contents relating to the rape incidents are true and correct.
17. The prosecutrix has thus deposed contrary to the SC No.27/15. Page 10 of 21 prosecution case in her cross examination so far as the charge of rape u/s.376 IPC is concerned. She has contradicted her own version in this regard contained in her complaint Ex.PW1/D and in her examination in chief. According to her deposition in cross examination, accused had not committed forcible sexual intercourse with her at all and the rape incident has been included in the complaint by her family without her knowledge. She has stated that she mentioned about the rape incident in her statement to Ld. M.M. and in her examination in chief as everybody has told her to depose on the basis of her complaint Ex.PW1/D.
18. Hence, the prosecutrix has given a clean chit to the accused with regards to the allegations of rape. Her deposition in cross examination appears to be voluntary as neither she nor her father (PW4), brother (PW5) and sister (PW6), who were examined after the recording of her testimony, complained that the accused or anybody on his behalf had threatened or pressurized them to depose in his favour. Further, if at all the prosecutrix and her family would have been threatened or pressurized, they would have deposed in favour of accused with regard to the charges under Information Technology Act also framed against accused. The threat or pressure couldn't have been regarding one particular charge only. The accused, thus, gets absolved of the allegations of rape and molestation and is liable to be acquitted of the charge u/s.376 IPC & u/s.354 IPC.
19. Regarding charges u/s.66C, u/s.66E and u/s.67A of the Information Technology Act, 2000 the allegations against the SC No.27/15. Page 11 of 21 accused are that he had uploaded nude photographs of the prosecutrix on the Facebook page "lemmetry", uploaded these nude photographs on her own Facebook account also and sent these nude photographs to the mobile no.9654323507 of her sister Nimmi through Whatapp from his mobile no.99971847310.
20. The prosecutrix has deposed in this regard that when she came to know that the accused is married, she quarrelled with him and asked him not to keep any relation with her. However, after few days, the accused sent her nude photographs on her mobile phone saying that he had clicked those photographs during the incident when she had accompanied him to his house in October, 2013. It needs note here that the accused had taken her to his home one day in the month of October, 2013 on the pretext of introducing her to his family. According to her deposition in examination in chief, the accused offered her cold drink in which something had been mixed and upon taking it, she lost consciousness and slept. When she woke up, she found that her clothes had been taken off and she was bleeding from her private part. Accused was present in the room and he too was nude. From her condition, she realized that accused had committed sexual intercourse with her.
21. The prosecutrix has further deposed that accused started blackmailing her on the basis of the aforementioned nude photographs and forced her to send him more nude photographs. She used to take her nude photographs in the bathroom and send those to the accused through Whatsapp. She further deposed that the accused uploaded these nude photographs on her Facebook SC No.27/15. Page 12 of 21 page "lemmetry" and also on her Facebook account as he knew the password. She also stated that accused sent her nude photographs to her sister through Whatsapp. She further stated that her sister had sent these photographs to mobile number 8882221605 of her father who got these photographs developed. Her father also got developed the photographs which had been uploaded on the Facebook page "lemmetry". She deposed that her father got a CD prepared of all these photographs and she handed over the CD to the IO. The CD is Ex.PW3/D and the printouts of the nude photographs are Ex.PW3/I (colly) and Ex.PW3/J (colly).
22. The prosecutrix's father (PW4) has deposed that Harpreet (the wife of prosecutrix's cousin) told him that prosecutrix had seen her nude photographs on her Facebook profile and her nude photographs had also been sent to the mobile phone of her sister Nimmy and for this reason had the prosecutrix consumed toilet cleaner. He further stated that Harpreet had handed over a pendrive containing nude photographs of prosecutrix to him and his son Inderdeep converted the contents of pendrive into a CD. He also took the printouts of the photographs from a nearby shop. He also deposed that he handed over the CD and the photographs to the IO.
23. Inderdeep, the brother of prosecutrix, appearing as PW5 has deposed that accused had sent certain nude photographs of prosecutrix to his mobile phone on 16.1.2015, which was his birthday, saying that it is birthday gift for him. He immediately deleted the photographs and apprised his other sister Nimmy about the same. He did not say anything about the pendrive or CD SC No.27/15. Page 13 of 21 or the printouts of the photographs in his examination in chief. In the cross examination conducted by Ld. APP after declaring him hostile, he stated that his Bhabhi (sister in law) Harpreet Kaur had handed over a pendrive to him containing screen shots of the nude photographs of his sister 'V' which had been uploaded on her Facebook page. He prepared a CD of these screen shots and handed over the CD to his father.
24. Prosecutrix's sister (PW6) stated that she, her sister i.e. prosecutrix and their sister in law (Bhabhi) Harpreet Kaur had been operating the Facebook page "lemmetry". She further deposed that she got married on 18.1.2015 and while she alongwith her husband was in Goa for honeymoon trip, her office colleague Preeti Gupta called her to say that certain nude photographs of the prosecutrix have been uploaded on the Facebook page "lemmetry". As she was not having internet connection in Goa, she made call to her father and apprised him about the same. When she returned to Delhi and switched on her mobile phone, she found that certain nude photographs of her sister 'V' had been sent to her through Whatsapp from an unknown mobile number.
25. She was declared hostile at the request of Ld. APP and in the cross examination of Ld. APP, she stated that she didn't recollect whether she had transferred the nude photographs of 'V' to the mobile phone of her father.
26. PW15 SI Kusum was the initial IO of this case. She has deposed that she visited Gandhi Nursing Home, Om Vihar, Uttam SC No.27/15. Page 14 of 21 Nagar, New Delhi, on 31.1.2015, where the prosecutrix was undergoing treatment, and recorded her statement u/s.161 Cr.PC. She also recorded statement of prosecutrix's mother. The prosecutrix handed over to her a CD containing her nude photographs and a transcript of Whatsapp conversation between her and accused Manmeet which she seized vide memo Ex.PW3/C. She further deposed that she has seized the mobile phone of the accused of make 'Mi' on 12.2.2015 after his arrest. On the same day, she alongwith Const. Anil and prosecutrix's father reached to his house wherefrom she seized the mobile phone of the prosecutrix of make Galaxy and that of her sister of make Sony Xperia vide seizure memo Ex.PW3/G. She further deposed that she alongwith Inspector Shashi Bala, HC Satyawan and Const. Sher Singh accompanied the accused to his house no.A-94 in Noida on 14.2.2015 wherefrom Inspector Shashi Bala seized a laptop, its charger and bag from the bedroom of the accused vide seizure memo Ex.PW15/D.
27. In the cross examination, she deposed that she did not ask the prosecutrix wherefrom had she got the CD prepared which she had seized vide memo Ex.PW3/C. She also did not check the mobile phone of the accused after its seizure from the accused and hence could not say whether any nude photographs of the prosecutrix had been stored in the same. She admitted that the prosecutrix did not give her Facebook account details and URL, for which reason she was not able to check the Facebook page of the prosecutrix.
28. PW17 Inspector Shashi Bala had been the SC No.27/15. Page 15 of 21 Investigating Officer of this case from 14..22015 onwards. She deposed that on that day she alongwith HC Satyawan, Const. Sher Singh and ASI Ksum accompanied the accused to his house no.A-94 in Noida wherefrom she seized one laptop of make 'hp' and its charger from the bedroom of the accused vide seizure memo Ex.PW5/D. She further deposed that she served a notice u/s.91 Cr.PC upon the prosecutrix requiring her to produce all the requisite documents pursuant to which prosecutrix's father appeared in the police station on 17.2.2015 and handed over the written reply of the prosecutrix and certain printouts of nude photographs of the prosecutrix to her. She seized those vide memo Ex.PW17/A. She further deposed that the prosecutrix herself appeared in the police station on 26.2.2015 and submitted her reply to notice u/s.91 Cr.PC. Prosecutrix also handed over printouts of nude photographs taken from the CD which she had earlier submitted alongwith her 10th class certificate to her and she seized these vide memo Ex.PW3/H. She then sent all the exhibits to FSL for forensic examination.
29. According to the deposition of the prosecutrix, accused had uploaded her nude photographs on the Facebook page 'lemmetry', which was being jointly operated by herself, her sister PW6 and their sister in law (Bhabhi) namely Harpreet Kaur. She has further deposed that the accused had sent her nude photographs to the mobile no. 9971847310 to her sister Nimmy through Whatsapp. She also stated that her sister Nimmy had transfered these nude photographs to the mobile no. 8882221605 of their father who got developed these photographs as well as the photographs which had been uploaded by the accused on the SC No.27/15. Page 16 of 21 Facebook page 'lemmetry', got prepared a CD containing all these photographs and handed over the CD to the IO which were seized vide seizure memo Ex.PW3/C.
30. The version of the prosecutrix is that she had no choice but to click her nude photographs in the bathroom of her house and to send those to the accused as the accused was blackmailing her on the basis of her previous nude photographs which were in his possession which he had clicked during the incident of October, 2013 when she had accompanied her to his house where he had administered Spiked cold drink to her, upon taking which she had become unconscious and after regaining consciousness, she had found that her clothes had been taken off and she was bleeding from her private part. The prosecutrix has herself mentioned in the cross examination that the accused did not commit any wrong or illegal act with her in his house on that day. Therefore, it is evident that the accused had not administered any Spiked cold drink to her and there was no occasion for him to click her nude photographs. This, in turn, leads to conclusion that the accused did not possess any nude photographs of the prosecutrix and hence could not have blackmailed her. The only impression which can be gathered from the overall testimony of the prosecutrix in this regard is that she was voluntarily sending her nude photographs to the accused as she was in love with him.
31. The prosecutrix has nowhere mentioned as to who had at first noticed her nude photographs on the Facebook page 'lemmetry' and who had downloaded those photographs from the said page. Her father, appearing as PW4, has deposed that one SC No.27/15. Page 17 of 21 Harpreet (wife of prosecutrix's cousin) had seen the nude photographs of prosecutrix on the Facebook and handed over to him a pendrive containing these nude photographs. He handed over the pendrive to his son Inderdeep who converted its contents into a CD and also took printout of the photographs from nearby shop. PW4 then handed over the CD and photographs to the IO.
32. Therefore, it appears that her Harpreet Kaur had downloaded to nude photographs of the prosecutrix from Facebook page 'lemmetry' and transfered the same into a pendrive which she handed over to PW4. Neither has the statement of Harpreet Kaur been recorded u/s.161 Cr.PC by the IO nor has she been produced as a witness before this court. Since she was the person who had downloaded the nude photographs of the prosecutrix from the Facebook page 'lemmetry' and converted into a pendrive, it was a legal necessity that a certificate u/s. 65B(4) of the Evidence Act should have come from her in order to certify the genuineness of the contents of the pendrive. Even no such certificate from Harpreet Kaur has been placed and proved on record.
33. It is further evident from the deposition of PW4 and PW5 that PW5 had prepared a CD from the contents of the aforesaid pendrive which CD was then handed over by PW4 to the IO and is on record as Ex.PW3/D. Therefore, his certificate u/s. 65B(4) of the Evidence Act was also necessary to vouchsafe the genuineness of the contents of the CD Ex.PW3/D. No such certificate has been produced and proved on record.
SC No.27/15. Page 18 of 2134. According to prosecutrix, the CD Ex.PW3/D also contains her nude photographs which had been sent by the accused to the mobile number of her sister Nimmy, which had been sent by Nimmy to the mobile number of their father PW4. PW4 has not deposed anything regarding transfer of such nude photographs by his daughter Nimmy to his mobile phone. PW6 (Nimmy) has, though, stated that the certain nude photographs of the prosecutrix had been sent to her mobile phone from an unknown mobile number through Whatsapp but she did not recollect whether she had transfered these nude photographs to the mobile phone of her father. Therefore, it is very difficult to say with certainty that the CD Ex.PW3/D also contains those nude photographs of the prosecutrix which had been sent by accused to the mobile number of her sister through Whatsapp.
35. The case of the prosecution regarding the charges under Information Technology Act framed against the accused is based upon the electronic evidence in the form of pendrive, CD Ex.PW3/D and the printouts of nude photographs of the prosecutrix Ex.PW3/I (colly) as well as Ex.PW3/J (colly). The pendrive has neither been seized by the IO nor has been produced by any witness before this court. The CD Ex.PW3/D and the printouts of the nude photographs Ex.PW3/I (colly) as well as Ex.PW3/J (colly) are not accompanied by certificate u/s.65B of the Evidence Act. Section 65B (4) of the Evidence Act bars taking on record any electronic evidence unless following conditions are satisfied:
(a) There must be a certificate which should identify the SC No.27/15. Page 19 of 21 electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record.
(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
36. The Supreme Court in Anvar P.V. vs. P.K. Basheer and others, (2014) 10 SCC 473, has very clearly held that the Evidence Act does not contemplate or permit to prove on record an electronic record by oral evidence if requirements u/s.65B of the Evidence Act are not complied with.
37. In view of the aforesaid legal position, the CD Ex.PW3/D and the photographs Ex.PW3/I (colly) and Ex.PW3/J (colly) cannot be taken into consideration as these are not accompanied by a certificate u/s.65B (4) of the Evidence Act. Similarly, the oral evidence of PW3, PW4, PW5 & PW6 in this regard also cannot be looked into for the same reason.
38. Hence the prosecution has failed to lead any legally admissible evidence to prove the charges under the Information Technology Act framed against the accused. The accused is entitled to benefit of doubt and hence is liable to be acquitted.
SC No.27/15. Page 20 of 2139. The accused is therefore acquitted of all the charges, giving him benefit of doubt.
Announced in open (VIRENDER BHAT)
Court on 15.9.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.27/15. Page 21 of 21