Bangalore District Court
State By Cyber Crime Police Station vs Theodore.Jay.Jaffe on 16 September, 2016
IN THE COURT OF THE I ADDL.C.M.M, Bengaluru
Present: Smt. Hema Pastapur
B.A.,LL.B.,
I Addl C. M. M, Bengaluru
C.C.No.14616/2014
Dated this the 16th day of September 2016
Judgment under section 355 of the Code of Criminal Procedure
Complainant:- State by Cyber Crime Police Station,
C.I.D, Bengaluru.
(By Learned Special Public Prosecutor)
VS
Accused:- Theodore.Jay.Jaffe, age:67 years,
r/o No.501, D.No.594, E-24,
Radhananda Residency,
Indrali Temple road, Kunjibettu East,
Manipal, Udupi 576101
(Accused by Shri A.S.Gupta, Advocate)
Offences complained : U/sec 67(B) of the Information Technology
Act and u/sec 201 of the Indian Penal Code.
Opinion of the Court : Accused is not found guilty
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Date of Judgment : 16-09-2016.
JUDGMENT
That, the Police Inspector, Cyber Crime Police Station, C.I.D, Bengaluru, has filed the Final report against the accused for the offence punishable under section 67(B) of the Information Technology Act and under section 201 of the Indian Penal Code.
1. That, the gist of the prosecution case is that the accused was residing in house no.501, D.No.594, E-24, Radhananda Residency, Indrani Temple road, Kunji Bettu East, Manipal, Udupi, on rental basis and the said house is belonging to CW5. That, the accused in house had obtained the telephone connection with internet facility from BSNL network telephone bearing no.820-2574873 and he viewed, accessed and downloaded the offensive child pornography materials from 20-07-2009 at 4.54 IST to 21-07-2009 4.53 IST by means of his computer bearing I.P.No.117.198.97.27 and thereafter, with an intention to destroy the evidence had sold out his computer accessories to some unknown person.
2. That, on complaint being lodged the Cyber Crime Police, Bengaluru, have registered the case against the accused. That, the 3 C.C.No.14616/2014 Investigating Officer after completion of investigation filed the Final report against the accused for aforesaid offences.
3. That, this court after taking the cognizance of the aforesaid offences issued the summons to the accused and in consonance with the said summons the accused has appeared before this court through his Learned counsel and he was enlarged on bail. That, the provisions of section 207 of Code of Criminal Procedure, have complied here with. That, the charge of the accused has framed and read over to him in language known to him and he has not pleaded guilty and claimed to be tried. That, after completion of prosecution side evidence the statement of accused as contemplated under section 313 of Code of Criminal Procedure, was recorded and read over to him and he denied all incriminating evidence appearing against him and not chosen to lead either oral or documentary evidence on his behalf.
4. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:
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1. Whether the prosecution has proved beyond all reasonable doubt that, the accused had viewed, accessed and downloaded the offensive child pornography materials from 20-07-2009 at 4.54 IST to 21-07-2009 4.53 IST by means of his computer bearing I.P.No.117.198.97.27 and thereby has committed the offence punishable under section 67(B) of the Information Technology Act?
2. Whether the prosecution has proved beyond all reasonable doubt that, the accused with an intention to destroy the evidence had sold out his computer accessories to some unknown person and thereby has committed the offence punishable under section 201 of the Indian Penal Code?
3. What order?
5. That, the prosecution to prove its above case has got examined PWs1 to 9 and got marked the documents at EXsP1 to P25(a) and also got marked M.O.1 and closed its side.
6. That, My answer to the aforesaid points are as under:-
Point No.1:- In the NEGATIVE Point No.2: In the NEGATIVE Point No.3:-As per the final order for the following:- 5 C.C.No.14616/2014
REASONS
7. Points No.1 and 2:- That, as these points are inter-linked, I have taken them for joint discussion to avoid repetition of facts.
It is specific allegation of the prosecution that the accused was residing in house no.501, D.No.594, E-24, Radhananda Residency, Indrani Temple road, Kunji Bettu East, Manipal, Udupi, on rental basis and he obtained the telephone connection with internet facility from BSNL network telephone bearing no.820-2574873 and he viewed, accessed and downloaded the offensive child pornography materials from 20-07-2009 at 4.54 IST to 21-07-2009 4.53 IST by means of his computer bearing I.P.No.117.198.97.27 and with an intention to destroy the evidence had sold out his computer accessories to some unknown person.
It is pertinent to note here that, the prosecution to prove its above case has got examined CW1-Shri Mallikarjun s/o Bheemaiah- the Technical Assistant at CID as PW1. It is pertinent to note here that, PW1 has deposed that on 04-05-2011 he went to the house of accused along with Police Inspector Shri Venkatesh Murthy to seize the hard disc of the computer and at 6 C.C.No.14616/2014 that time they came to know that the accused had vacated the said house at about 15 days back.
8. It is pertinent to note here that, the prosecution to prove its above case has got examined CW4- Shri G. Sadananda Ameen s/o Late U. D. Kotiyana as PW2. It is pertinent to note here that, PW2 has deposed that he is residing in house no.509 at Radhananda residency and the accused was residing in house no.501 of the said house along with one Philiphines lady and 16 years old girl and on 04-05-2011 one Police Inspector Shri Venkateshmurthy had visited the said house of the accused and he informed the said Police Inspector about the house vacated by the accused at about 15 days back.
9. It is pertinent to note here that, the prosecution to prove its above case has got examined CW2-Shri Hemanath Hegde- s/o Shyamanatha Shetty as PW4. It is pertinent to note here that, PW4 has deposed that on request of one Dr.Shivakumar he shown the house of one Harish Shetty to the accused and the accused had stayed in said house for two years and during that period the accused was doing the work of consultant for foreigners. 7 C.C.No.14616/2014
10. It is pertinent to note here that, the prosecution to prove its above case has got examined CW5- Shri Harish Shetty s/o Buba Shetty as PW5. It is to be noted here that, PW5 in his examination-in-chief has deposed that he is the owner of flat no.501 of Udupi and he provided the said house on rental basis to the accused in the year 2009 and both of them have got executed the rent agreement deed and the said agreement was executed for 11 months and after expiry of 11 months, they have agreed to renew the same. It is pertinent to note here that, PW5 in his examination- in-chief has deposed that the accused had resided in said house for two years.
11. It is pertinent to note here that, the prosecution to prove its above case has got examined CW6-Smt. P. Susanna Kumari w/o Sudharshan -the then Divisional Engineer, BBNW Circle, BSNL Office of General Manager Network Operation Centre, Telephone Exchange, Bengaluru as PW3. It is to be noted here that, PW3 has deposed about the BSNL network connection obtained by the accused for his aforesaid house and providing the certificate under I.E. Act.
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12. It is pertinent to note here that, the prosecution to prove its above case has got examined CW7-Shri Naveenchandra s/o Sanjeev -the Division A.G.M. of Udupi as PW6. It is to be noted here that, PW6 in his examination-in-chief has deposed that on 25-02-2014 the Cyber Crime police have sought the information regarding the phone No.0820-2574873 and for which he furnished the informatin stating that the said connection was belonging to one customer by name Shri Thaddojjaffe. It is to be noted here that, PW6 has further deposed that on 30-03-2009 the accused had moved the application to their office for transferring his phone connection and broadband connection to house no.501 of Radhananda residency, Indrani temple road, Udupi and till November 2009 the accused had obtained the said connection.
13. It is pertinent to note here that, the prosecution to prove its above case has got examined CW10- Shri N. M. Anandakumar s/o K. Muniyappa the Investigating Officer as PW7. It is to be noted here that, PW7 has deposed about the look out notice issued by him to the accused and filing 'C' report.
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14. It is pertinent to note here that, the prosecution to prove its above case has got examined CW11-Shri S. N. Sanjeevkumar s/o Jambu Mahajan as PW8 and CW9-Shri A.V. Venkateshmurthy s/o Venkatappa as PW9. It is to be noted here that, PWs8 and 9 are the Investigating Officers and have deposed about the investigation conducted by them in present case.
It is to be noted here that, the accused in cross-examination of PWs1 to 9 has denied the entire prosecution case.
15. It is pertinent to note here that, in the instant case admittedly the accused is facing the trial for the offence punishable under section 67(B) of the Information Technology Act and under section 201 of the Indian Penal Code.
It is pertinent to note here that, the special rules of proof in criminal case are that -(1) there is presumption of innocence of the accused till the contrary is proved, (2) that the burden of proof lies on the prosecution and (3) the guilt of the accused should be proved to a moral certainty beyond any reasonable doubt.
It is pertinent to note here that, to bring home the charge under section 67(B) of the Information Technology Act, the 10 C.C.No.14616/2014 prosecution must prove that the accused has published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or created text digital images, collected, browsed, downloaded, advertised, exchanged or distributed material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or facilitated abusing children online, or the recorded in any electronic form own abuse or that of others pertaining to sexually explicit act with children; or cultivated, enticed or induced children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource.
It is pertinent to note here that, to constitute the offence punishable under section 201 of Indian Penal code, it must be proved that the accused has actively participated in the matter of causing disappearance of evidence. It is to be noted here that, the proof of an offence is an essential requisite for bringing home the offence under section 201 of the Indian Penal Code. It is pertinent to note here that, on examination of deposition by witnesses, no evidence 11 C.C.No.14616/2014 showed that the accused has committed the offence, the accused is liable to be acquitted.
16. It is pertinent to note here that, the prosecution in the instant case has failed to prove the essential requisites of aforesaid provisions. It is pertinent to note here that, the evidence of PWs1 to 9 is not crystal clear from which it can be held that the accused had viewed, accessed and downloaded the offensive child pornography materials by means of his aforesaid computer and with an intention to destroy the evidence had sold out his computer accessories to some unknown person. It is pertinent to note here that, mere allegation is not suffice to hold that the accused has committed the alleged offences. It is pertinent to note here that, in other words, in present case on examination of deposition of witnesses, no evidence is forth coming that the accused has committed the alleged offences. It is to be noted here that, in view of My above findings and without much discussion I hold that, the prosecution has utterly failed to prove the guilt of the accused for the offence punishable under section 67(B) of the Information 12 C.C.No.14616/2014 Technology Act and under section 201 of the Indian Penal Code. In view of the same, points no.1 and 2 are answered in the NEGATIVE.
17. Point No.3:- That, as discussed on points no.1 and 2, I proceed to pass the following, ORDER That, acting under section 248(1) of the Code of Criminal Procedure, accused is acquitted for the offence punishable under section 67(B) of the Information Technology Act and under section 201 of the Indian Penal Code.
That, the bail and surety bonds of the accused are stands cancelled.
That, the accused shall comply with the provisions of section 437(A) of the Code of Criminal Procedure.
That, M.O.1 shall be destroyed after appeal period. (Dictated to the stenographer, transcript thereof, computerized revised and then corrected by me and then pronounced in open Court on this the 16th day of September 2016).
Date:16.09.2016 (Hema Pastapur)
Place:Bengaluru I Addl. C. M. M, Bengaluru.
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Annexure
List of witnesses examined on behalf of the prosecution PW1: Mallikarjun s/o Bheemaiah;
PW2: G. Sadananda Ameen s/o Late U. D. Kotiyana; PW3: Smt. P. Susanna Kumari w/o Sudarshan;
PW4: Hemanath Hegde s/o Shyamanatha Shetty;
PW5: Harish Shetty s/o Booba Shetty;
PW6: Naveenchandra s/o Sanjeev;
PW7: N. M. Anandkumar s/o K. Muniyappa;
PW8: S. N. Sanjeevkumar s/o Jambu Mahajan and
PW9: M. V. Venkateshmurthy s/o venkatappa.
List of documents marked on behalf of the prosecution EXP1: Covering letter;
EXP1(a): Signature of PW3;
EXP2: Letter of information;
EXP2(a): Signature of PW3;
EXP3: Certificate issued under I.E. Act;
EXP3(a): Signature of PW3;
EXP4: Rent agreement deed;
EXP5: Lease agreement;
EXP6: E-mail print out;
EXP7: Billing address of customer/accused;
EXP8: Application of the accused;
EXP9: Certified copy of rent deed;
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EXP10: Application filed by accused to obtain the
broad band connection;
EXsP11 and P12: Applications;
EXP13: Request letter of PW8;
EXP13(a): Signature of PW8;
EXP14: Handing over letter;
EXP15: Take over letter;
EXP16: Bank statement of accused;
EXP17: Passport of the accused;
EXP18: Lookout notice;
EXP19: 'C' report;
EXP19(a): Signature of PW7;
EXP20: Letter;
EXP20(a): Signature of PW9;
EXP21: FIR;
EXP21(a): Signature of PW9;
EXP22: Letter of BSNL;
EXP22(a): Signature of PW9;
EXP23: Request letter;
EXP23(a): Signature of PW9;
EXP24: Search warrant;
EXP24(a): Signature of PW9;
EXP25: Request letter and
EXP25(a): Signature of PW9.
15 C.C.No.14616/2014
List of witnesses examined on behalf of the accused Nil List of documents marked on behalf of the accused Nil List of material objects marked on behalf of the prosecution M.O.1: Compact disc.
Date:16.09.2016 (Hema Pastapur)
Place:Bengaluru I Addl C. M. M, Bengaluru.
16 C.C.No.14616/2014
(Judgment pronounced in the Open Court, vide separate order) ORDER That, acting under section 248(1) of the Code of Criminal Procedure, accused is acquitted for the offence punishable under section 67(B) of the Information Technology Act and under section 201 of the Indian Penal Code.
That, the bail and surety bonds of the accused are stands cancelled.
That, the accused shall comply with the provisions of section 437(A) of the Code of Criminal Procedure.
That, M.O.1 shall be destroyed after appeal period.
(Hema Pastapur) I Addl.CMM, Bangalore.
17 C.C.No.14616/2014