Delhi District Court
State vs . Kartik Kuila Page No. 1/20 on 21 April, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0009152014
SC No. : 19/14 and 1242/16
FIR No. : 232/13
U/s. : 376/506/354D IPC & 67 IT Act.
PS : Greater KailashI, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Kartik Kuila
S/o Shri Khudi Ram Kuila
R/o VPO Barchara, P.S Sabong,
Distt. East Midnapur,
West Bengal. .........................Accused
Date of Institution : 31.01.2014
Judgment reserved for orders on : 21.04.2017
Date of pronouncement : 21.04.2017
J U D G M E N T
Facts
1. The present case was sent up for trial on the basis of the statement dated 06.11.2013 given by the prosecutrix ( name withheld to protect her identity) which culminated into registration of FIR No. 232/13 at the police station Greater KailashI, New Delhi. The detailed facts and circumstances are as follows:
2. She alleged that she works as maid in a house at Faridabad. She is fifth class pass. She lives with her brother and bhabhi. Earlier she FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 1/20 used to work as maid in R43, Greater Kailash Part I. Accused used to work there. She worked there for 45 years. Once the accused committed sexual intercourse with her without her consent in the servant quarter. She wanted to make complaint against him but he threatened to kill her family. He sexually exploited her and made her nude videos. When she objected as to making of her videos, he told her that he would delete them after sometime. Whenever she tried to make complaint against him, he threatened her to kill and upload her photos and videos on the net. She got scared, left the job and started working in a house at Faridabad. She alleged that the accused from his mobile number 9891027258 called her on her mobile number 8800539683 and asked her address. She came to know from his village that he transmitted her photos and videos containing sexually explicit acts. She then told the incident to her brother who contacted his friend Ganesh. She alleged that the accused sexually exploited her and transmitted her videos and photographs containing sexually explicit acts in public.
Investigation
3. On the basis of her statement, the case was registered u/s 354(D), 376/506 IPC and Section 67 of Information Technology Act, 2000.The prosecutrix was got medically examined at AIIMS. The accused was arrested from R43, Greater KailashI where he had been working as cook. A mobile phone alongwith memory card which was stated to be used by him for taking and circulating sexually explicit pictures and videos of the prosecutrix was seized after making a pulanda sealing it with the seal of SG. He was got medically examined at AIIMS. The doctor found him FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 2/20 capable of performing sexual intercourse under normal circumstances. Investigation revealed that accused had given a memory card containing the nude pictures and videos of the prosecutrix to Ganesh Jana. The memory card 2GB, micro SD were seized and sealed with the seal of SG. The accused also identified the shop from where he got copied the nude pictures and videos of the prosecutrix and prepared the memory card. Three CDs were prepared from the contents of the memory card. The card was sent to the FSL. The laptop through which the nude pictures and videos were transferred was also sent to the FSL. The shopkeeper Nasir identified the accused stating that he had come at his shop for transferring the photographs and videos. The prosecutrix was got counseled. Her statement u/s 164 CrPC was got recorded. The call details record of the mobile phone of the prosecutrix and the accused were collected. The mobile number 8800539683 was found in the name of the brother of the prosecutrix. The mobile numbers 9891027258 and 8130381193 were found in the name of the accused. On an analysis of the call details, it was found that the accused made 147 calls on the mobile of the prosecutrix. The exhibits were sent to the CFSL, CBI Lodhi Road. The data from the Hard Disk of the laptop, mobile phone, mobile sim card of Airtel and Idea, memory card was retrieved. On analysis, the nude images and videos of the prosecutrix were found in the memory card provided by Ganesh Jana. Some of the images were also found in the mobile phone of the accused. After the investigation, the accused was charge sheeted.
4. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court.
FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 3/20 Charge
5. Vide order dated 10.02.2014, prima facie case was made out against the accused for the offences punishable u/s 376 IPC, 67 of the Information Technology Act 2000, 506 and 354D IPC. Charge was framed. The accused pleaded not guilty and claimed trial. Prosecution Evidence
6. To substantiate its allegations against the accused, prosecution examined as many as sixteen witnesses. PW1 HC Amit Singh was the Duty Officer. He proved the recording of FIR Ex. PW 1/A. PW2 is the prosecutrix. PW3 Ganesh Jana was the friend of the brother of the prosecutrix/PW12. When the accused showed him and others, the picture of prosecutrix, he showed it to PW12 who showed the photographs to the prosecutrix when she came to meet him. He accompanied them to the police station where she lodged the complaint. He also witnessed the arrest of the accused and his handing over the memory card to the IO. He also witnessed the seizure of laptop and memory card from the shop of Nasir. PW4 Dr Shashank Puniya did the medical examination of the accused vide MLC Ex. PW 4/A. PW5 R P Joneja was the owner of the premises at R43, Greater KailashI where the accused used to work as Cook. He stated that he had employed the prosecutrix on the recommendation of the accused. He gave the servant quarter to the accused on the first floor and to the prosecutrix on the third floor. He stated that the prosecutrix left the house about six months before the arrest of the accused saying that she was going to marry in her village. PW6 was the Nodal Officer, Airtel. He FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 4/20 proved the CDR in respect of mobile numbers 8130381193 and 8800539683 for the period from 01.10.2013 to 07.11.2013 Ex. PW 6/B and Ex. PW 6/C and Customer Application Forms Ex. PW 6/D and Ex. PW 6/F respectively. PW7 was the Nodal Officer, Idea Cellular Ltd. He proved the CDR and Customer Application Form in respect of mobile number 9891027258 for the period from 01.10.2013 to 07.11.2013 Ex. PW 7/C and Ex. PW 7/A. PW8 SI Manisha took the prosecutrix to AIIMS for her medical examination. PW9 Ct Neetu took the prosecutrix to the Duty Officer where her statement was recorded by the IO. PW10 Dr Nipun did the medical examination of the prosecutrix vide MLC Ex. PW 10/A. She also recorded the history of incident on the narration of the prosecutrix. PW11 Ct Prithvi Raj witnessed the arrest of the accused and seizure of his mobile phone containing two sim cards and one memory card vide memo Ex. PW 11/D. PW12 is the brother of the prosecutrix. PW13 Ms Namrata Aggarwal, Ld MM recorded the statement of prosecutrix u/s 164 CrPC Ex. PW12/B. PW14 Sh. Kailash Kumar, Junior Forensic/Asst. Chemical Examination, Computer Forensic Unit, RFSL forensically examined the exhibits and gave report Ex. PW 14/A after retrieving the images. He stated that certain images contained obscenity. He identified the laptop Ex. PW14/P1, mobile phone having two sim cards of Airtel and Idea and one SD memory card Ex. PW 14/P2, memory card Ex. PW 14/P3 and Hard Disk containing the retrieved data Ex. PW14/P4. PW15 SI Pawan Kumar recorded the statement of the prosecutrix Ex. PW 2/A and arrested the accused from R43 Greater KailashI. He recovered the mobile FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 5/20 phone from the accused vide memo Ex. PW 11/D and got him medically examined. On 07.11.2013 he took the accused to Jamrudpur and seized the laptop and the memory card vide memo Ex. PW 3/D. He got recorded the statement of prosecutrix u/s 164 CrPC. He got sent the exhibits to FSL. PW16 Insp. Sandeep Ghai was the investigating officer of the case. He deposed on the lines of PW15 and identified the exhibits. Statement of Accused u/s 313 CrPC
7. After the prosecution evidence was closed, statement of the accused was recorded u/s 313 CrPC. He admitted that the prosecutrix used to work as maid in H. No. R43, Greater KailashI and he used to work as cook. He also admitted that he got her employed in the premises and in May, 2013, she left the job. He denied all the incriminating evidence against him and stated that he never threatened her and she made the false complaint against him under the pressure of her family members. She knew that he was married. Their physical relations were consensual. He admitted that they used to live in the servant quarters. He offered no answer as to the sending of exhibits to CFSL and retrieving of data from the exhibits in the hard disk Ex. PW 14/P4. He offered no explanation as to the call details Ex. PW 6/B, Ex. PW 6/C and Ex. PW 7/C. He stated that he did not prepare her obscene video nor took her photographs. She herself handed over the memory card to the police to falsely implicate him in this case.
8. The accused did not examine any witness in his defence. Arguments
9. I have heard the arguments advanced by Sh. Mohd. Iqrar, FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 6/20 Ld. Addl. PP for the State and Sh. Tariq Hashmi, Ld. Counsel for the accused.
10. Ld. APP submitted that in view of the consistent and categoric stand of the prosecutrix coupled with the corroborating evidence, it stands proved that the accused is guilty of the charges as framed against him. Elaborating on his arguments, ld. APP submitted that the chain of events and link evidence clearly point towards the guilt of the accused. He forcefully submitted that the accused took advantage of the prosecutrix being in an extremely vulnerable position. He promised to marry the prosecutrix and made physical relations with her though he was already married. He took her naked photographs and prepared obscene videos and blackmailed her. He also transmitted the sexually explicit material in public.
11. Ld counsel for the accused on the contrary argued that prosecutrix is not consistent and cogent in her testimony. She did not know who took her nude photographs or made her video clips. She has stated that the accused never threatened her. She had also met the wife of the accused and she knew from before that the accused was already married. Even then, she wanted to marry with the accused and when he refused, she made the complaint. Ld counsel stated that their physical relations were consensual and were not on misrepresentation of facts. There was no recovery of any obscene material from the possession or at the instance of the accused. The prosecutrix herself had given the memory card to Ganesh. Ld counsel stated that it is a case of false implication of the accused.
FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 7/20 Findings
12. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and gone through the statements of the witnesses and the documents on record.
13. The accused has been charged with the offence of committing rape of the prosecutrix, taking of her nude photographs and transmitting them to the public, threatening her to kill, harassing her by following her in order to contact her to foster personal interaction repeatedly with her despite her clear indication of disinterest. As such, before adverting to the merits of rival submissions, a reproduction of the definition of the offences would be necessary and relevant.
14. Section 375 defines rape. It reads as:
"Rape A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.
FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 8/20 Secondly Without her consent.
Thirdly ..................
Fourthly ..................
Fifthly . ..................
Sixthly ..................
Seventhly ...................
Explanation 1. .........................
Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or noverbal communication, communicates willingness to participate in the specific sexual act.
Exception 1 ..............
Exception 2 ..............".
15. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.
16. Section 67 of Information Technology Act, 2000 provides punishment for publishing or transmitting obscene material in electronic form.
17. Section 506 IPC provides punishment for criminal intimidation.
18. Section 354D IPC provides punishment for stalking. Any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman shall be punished. .
FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 9/20
19. PW2/prosecutrix has testified on oath that she used to work as maid servant in R43 Greater KailashI. The accused used to work as cook. She worked there for 34 years. He promised to marry her. When she came to know that he was already married, she left the job. She stated that the accused did not do any wrong with her during her stay in the house. She filed the complaint to teach him a lesson since he had not disclosed to her that he was already married. She stated that she does not know if the accused had taken her naked photographs or prepared her obscene video. She stated that she never became pregnant during her stay in the house.
When she was declared hostile by the prosecution, she deposed on the lines of her complaint and stated that the accused had committed rape upon her in the said premises; he also threatened her to defame; he used to stalk her and when she left the job, he came in her village to search for her. She also admitted that she did not make complaint since she was afraid of him. She admitted that the accused used to threaten her that he made her obscene videos and put it on net. She however denied that the accused used to give her medicine/contraceptive to avoid pregnancy.
In her crossexamination, she stated that accused raped her once only during her stay in R43, Greater KailashI. She again improved and stated that the accused committed rape upon her quite often in R43, Greater KailashI. She stated that she filed the complaint to teach him a lesson since the accused had not disclosed to her that he was already married. She stated that she does not know who took her nude photographs or made her video clips or who uploaded her nude photographs on internet.
FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 10/20 She stated that she came to know from the friend of her brother about the pictures uploaded on the net. She stated that the accused never threatened her.
She again took Uturn and stated that nothing happened with her. She was further examined by the defence counsel. She stated that she knew the accused for about 78 years. The accused had stayed in her village for 810 days. She with her family had also gone to the native place of the accused, stayed there for 23 days and met with his wife. She came to know of the marriage of the accused when she went to his native place. She admitted that she had physical relations with the accused for many years and her parents and brother knew of their relations. She also admitted that she had made the video and taken the photographs from her mobile when they were in compromising position and had given the CD/memory card to the police. She also admitted that their physical relations were consensual and she made the relations since she liked him though she knew that the accused was already married. She stated that she made the complaint in anger.
She was reexamined by the Addl. Public Prosecutor wherein she stated that her parents and brother came to know of their physical relations about one year before she lodged the report. She stated that she consented for the physical relations since the accused had assured her that he would marry her.
When she was further crossexamined, she admitted that when the accused made physical relations with her, he did not talk about their marriage.
FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 11/20 She was court questioned. She clarified that the accused, when he made physical relations with her for the first time, did not talk about the marriage nor promised to marry her.
20. PW12, the brother of the prosecutrix has stated that in 2013, on the next day of Diwali, PW3 showed him an obscene video containing the pictures/footage of the accused and his sister. He told him that the accused had given him the memory card containing the said footage. He verified it from his sister. She started weeping and told him that the accused committed sexual intercourse with her forcibly several times and threatened her not to disclose it to anyone and for that reason, she did not disclose the incident to him. He then called the accused who threatened to kill him. He then discussed the matter with PW3 and took the prosecutrix to the police station where his sister gave the statement. On being crossexamined, he stated that he knew the accused for about 78 years. He used to come in his house and stayed there for 810 days. His sister and the accused worked in the same house for about 56 years. He knew that the accused was already married when he came to Delhi in search of a job. He stated that the prosecutrix also knew about the marital status of the accused. Once they had gone to the village of the accused and stayed there for 34 days. He stated that his family members never objected to the living of the prosecutrix with the accused. He stated that a quarrel took place between the prosecutrix and the accused on monetary issue and the prosecutrix made the complaint to teach him a lesson. She had told him that she has a CD containing obscene videos which she herself had got prepared.
FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 12/20 He was reexamined by Ld. Addl. PP but he did not support the prosecution story and reiterated what he stated in his cross examination.
21. PW3, the friend of the brother of the prosecutrix has stated that the accused was showing the pictures of a girl to some persons about four months ago. He also saw the pictures and found that it was of the sister of PW12. He showed the photographs to PW12. He got perplexed. He showed the photographs to his sister. He then with PW12 and PW2 went to the police station where prosecutrix made the complaint. He stated that PW12 had given the photo/video and the memory card to the IO and the police seized the laptop and the memory card from the shop of Nasir vide memo Ex. PW 3/A and Ex. PW 3/B.
22. On an analysis of the testimonies of PW2/prosecutrix and PW12, the brother of the prosecutrix, I find that they knew the accused for about 78 years. He used to come at their native place. He had stayed in their house for about 810 days. They had also gone to the native place of the accused and stayed there for 34 days. They knew that the accused was already married. The accused and the prosecutrix worked together as cook and maid in the house at R43, Greater KailashI, New Delhi. They had been given servant quarters on the first floor and third floor respectively. Testimony of PW5 shows that the prosecutrix never made any complaint against the accused during her stay in the said house. It has come in the evidence of PW2 that when the accused made physical relations with her for the first time, he did not talk about the marriage nor promised to marry her. There is no evidence to show that the accused followed the prosecutrix FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 13/20 to foster personal interaction with her despite her disinterest or that he sent any email or made electronic communication with her so as to constitute the offence punishable u/s 354D IPC.
23. In the instant case, the prosecutrix gave inconsistent statements in her deposition. Her testimony cannot be said to be of sterling quality. In her examination in chief recorded on 11.03.2014, she stated that accused had promised to marry her. Later she came to know that he was already married. He did not do anything wrong with her during her stay with him in the aforesaid house and she does not know who took her naked photographs and prepared her video. She filed the complaint to teach him a lesson when she came to know that he was already married. When she was declared hostile by the prosecution, she stated that the accused committed sexual intercourse with her forcibly in the aforesaid house, the accused used to stalk her when she left the job, he threatened her to upload the video clip of sexual intercourse on the net and he committed sexual intercourse with her for the last time in May, 2013 without her consent. She is inconsistent as to on how many times, the accused committed rape upon her. In her crossexamination, she stated that the accused never threatened her nor talked to her brother on mobile. She then stated that nothing happened with her as stated by her in her cross examination by Ld. Addl. PP. When she was further crossexamined on 30.03.2017, she stated that she had met the wife of the accused and they had physical relations for many years, her family members knew of their physical relations and it was she who made the videos and gave it to the police and their physical relations were consensual. She stated that FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 14/20 although she knew that the accused was already married but since she liked him, she made the physical relations. She stated that she made the complaint Ex. PW 2/A under pressure and in anger. She was reexamined but she did not support the prosecution case. Even she was court questioned but she remained consistent as to what she stated in her cross examination. In her statement u/s 164 CrPC Ex. PW 2/B, PW2 had stated that the accused had been committing rape upon her for about five year. He threatened her that in case she would make complaint, he will defame her. He also uploaded her picture/video on the net. PW12 is also inconsistent. He stated that he knew that the accused was already married when he came to Delhi in search of a job. The prosecutrix also knew the marital status of the accused. They never objected to the living of the prosecutrix with the accused. He stated that a quarrel took place on a monetary issue and PW2 lodged the complaint to teach the accused a lesson. It was the prosecutrix who had the CD and she handed over the CD to the police.
24. In Rai Sandeep @ Deepu v. State of NCT of Delhi, (2012) 8 SCC 21, the Supreme Court commented about the quality of the sole testimony of the prosecutrix which could be made basis to convict the accused. It held:
"In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 15/20 would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have corelation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
25. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, the Supreme Court held :
"It is true that in a case of rape the evidence FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 16/20 of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
26. In Abbas Ahmed Choudhary v. State of Assam (2010) 12 SCC 115 observing that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a prosecutrix would always tell the entire story truthfully, the Supreme Court held:
"Though the statement of prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecutrix would always tell the entire story truthfully. In the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been thoroughly demolished by the deposition of DW1."
Conclusion
27. The logical conclusion which can be drawn from the testimonies of PW2 and PW12 is that the prosecutrix and the accused knew each other from before. PW2 knew about the marital status of the accused when she came in contact with the accused. They worked together for many years. During that period, they made physical relations and their physical relations were consensual. The accused never promised to marry her nor their relations were out of misconception of fact. PW2 is very categorical in her testimony that the accused never threatened her nor FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 17/20 committed wrong with her and their physical relations were consensual. In the instant case, the last sexual intercourse allegedly took place in May, 2013 but she made the complaint in November, 2013. Nothing came in her medical examination to support the case of the prosecution. The call details record show that they used to talk to each other. I am of the view that necessary ingredients of the offences punishable u/s 376 and 506 IPC are not proved against the accused.
28. As regards, the allegations that the accused during the sexual intercourse with the prosecutrix made her videos and snapped her nude photographs and published it by transmitting them to different mobile phones and uploaded them on the net, perusal of the testimony of PW3 would show that the accused had showed him the pictures of the prosecutrix. He was showing the pictures to other persons also. He then showed the picture to PW12 who after confronting from PW2 made the complaint to the police. He stated that PW12 had given the photo/video and the memory card to the IO. The laptop and the memory card were recovered from the shop of Nasir. Testimony of PW2 would also show that her nude photographs were taken and her obscene videos were prepared. PW15/IO has stated that from the personal search of the accused, one mobile phone, two sim cards and one memory card were recovered. On 07.11.2013, the accused took them to Jamrudpur. PW12 and PW3 were with them. There he disclosed that from the laptop of Nasir, owner of the shop at Jamrudpur, he got the obscene pictures of the prosecutrix transferred from his phone to the memory card for circulation. He had also given one memory card to Ganesh. PW15 has further stated that Insp.
FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 18/20 Sandeep Ghai/PW16 seized the laptop and the memory card. PW16 also deposed on the lines of PW15 and stated that there were nude photographs of the prosecutrix in the memory card from which the CDs were prepared.
29. In the instant case, the laptop, mobile phone, sim cards and memory cards were sent to RFSL. On forensic examination, the memory card was found to contain the nude photographs and obscene videos of the prosecutrix. The accused did not challenge the forensic report Ex. PW 14/A and the contents of the retrieved data taken in the hard disk Ex SHDD1 prepared from the exhibits seized during the investigation. PW12 has stated that PW3 had shown him the nude photographs and videos of the prosecutrix.
30. From the testimonies of the above witnesses and the forensic report, it is clear that the nude photographs of the prosecutrix were taken and her obscene videos were prepared. The accused was having the nude photographs and obscene videos of the prosecutrix. He contacted Nasir at Jamrudpur to make copies of the same for circulation. He had also shown the nude photographs and obscene videos of the prosecutrix to many persons including PW3. He thus published/transmitted the sexually explicit act or conduct in the electronic form to the public at large. The very act committed by the accused amounts to commission of offence punishable under section 67A of the Information Technology Act.
31. In the light of above discussions and for the aforesaid reasons, I am of the view that the prosecution has failed to prove its case against the accused for his having been committed the offences punishable u/s 376, 354D and 506 IPC. I acquit him of the offences punishable under FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 19/20 section 376, 354D and 506 IPC. I am however of the opinion that the prosecution has proved beyond reasonable doubt its case against the accused for his having been committed the offence punishable under section 67 of Information Technology Act, 2000. I hold him guilty of the offence and convict him thereunder.
32. Let the accused be heard on the point of sentence on the date as fixed by this Court.
Announced in the open (Sanjiv Jain) court on 21.04.2017. ASJSpl. FTC / South East Saket Courts, New Delhi.
FIR No. : 232/13 PS : Greater Kailash-I State Vs. Kartik Kuila Page No. 20/20