Himachal Pradesh High Court
Reserved On: 12.9.2024 vs Mishank on 1 October, 2024
2024:HHC:9409 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 3154 of 2023 .
Reserved on: 12.9.2024 Date of Decision: 1.10.2024.
State of H.P. ...Applicant/Appellant
Versus
Mishank
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Applicant/appellant : Mr. Ajit Sharma, Deputy Advocate General.
For the Respondent : None.
Rakesh Kainthla, Judge
Applicant/Appellant has filed the present petition under Section 378(3) of the Code of Criminal Procedure for seeking leave to appeal against the judgment dated 9.8.2023, passed by learned Special Judge, Una, District Una, H.P., (learned Trial Court) vide which the respondent (accused before learned Trial Court) was acquitted of the commission of offences punishable under Section 67B of Information Technology Act 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present petition are that the police received a letter from the Superintendent of Police, Cyber Crime, CID, Police Headquarters, Shimla stating that the Cyber Crime Prevention against Women and Children Monitoring Team (NCRB) New Delhi had shared four CDs/DVDs about the offences committed within the jurisdiction of Una. A request was made to take legal action in the matter and submit a compliance report to the Police headquarters. FIR (Ex.PW3/E) was registered in the Police Station. Inspector Indu Devi (PW3) went through the Cyber Tipline Report (Ex.PW3/A) and found that accused Mishank Raj had uploaded a child pornographic video to his Facebook account from his mobile number with the user name and IP address specified in the Cyber Tiplines Report. She obtained the customer application form for the mobile phone (Ex.PW3/B).
She downloaded the content of the complaint received from Cyber Cell, Shimla and transferred them to CD (Ex. P5). She ::: Downloaded on - 01/10/2024 21:26:38 :::CIS 3 2024:HHC:9409 issued the certificate under Section 65B of the Indian Evidence Act (Ex.PW3/F). Charu Sharma (PW8) investigated the matter.
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She issued a notice to the accused. She seized the mobile phone of the accused vide memo (Ex.PW1/A). The mobile phone was sealed and deposited in the Malkhana. As per the complaint, the video was shared by the accused with Rakesh Kumar (PW4) and his statement was recorded. The mobile phone of the accused was sent to RFSL Dharamshala. A report (Ex.PW6/P6) was issued. The statements of witnesses were recorded as per their version and after the completion of the investigation, the challan was filed before learned Special Judge, Una.
3. Learned Special Judge, Una framed charges against the accused for the commission of offences punishable under Section 67 of the IT Act and Section 14 of the POCSO Act. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined nine witnesses to prove its case. HASI Bhakhtwar Singh (PW1) is the witness to the mobile phone recovery. HC Suresh Kumar (PW2) is the witness to the conversion of the CDs into one CD by Inspector Indu Devi (PW3). Rakesh Kumar (PW4) refused to support the prosecution ::: Downloaded on - 01/10/2024 21:26:38 :::CIS 4 2024:HHC:9409 case that the accused had shared the obscene video with him.
Devinder Verma (PW5), Nodal Officer of Bharti Airtel, proved the .
customer application form (Ex.PW5/B) and issued a certificate (Ex.PW5/C). HC Pramod Singh (PW6) was working as MHC with whom the case property was deposited. LC Soni (PW7) carried the case property to RFSL, Dharamshala and handed over the receipt to MHC on her return. Charu Sharma (PW8) conducted the investigation. Darshan Singh (PW9) was working as Inspector/SHO, who prepared the challan and presented it before the Court.
5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that he had not uploaded any video. He was working as a security guard. He was called by the police and his mobile phone was seized.
6. The accused was asked to lead the defence evidence.
He stated initially that he wanted to lead defence evidence but subsequently, a statement was made by learned counsel for the accused that he did not want to lead any defence evidence.
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7. The learned Trial Court held that witness Rajesh Kumar (PW4) had not supported the prosecution version. The .
victim seen in the video was not identified and there was no evidence that she was a child. The mobile phone of the accused was taken into possession and it was sent to RFSL Dharamshala for examination. However, no video was found on the mobile phone. The video was also not played in the Court and there was nothing to suggest that the video was pornographic. Rakesh Kumar (PW4) did not support the prosecution case that the accused had shared the video with him. Hence, the accused was acquitted.
8. Being aggrieved from the judgment passed by the learned Trial Court, the State has filed the present petition seeking leave to appeal. It has been asserted that the learned Trial Court failed to appreciate the material on record. A proper standard for appreciation of evidence was not adopted. The testimonies of prosecution witnesses were discarded without any reason. Learned Trial Court had not appreciated the statements of the official witnesses including Rakesh Kumar (PW4) in their proper perspective. The statements of the official witnesses corroborated each other and learned Trial Court erred ::: Downloaded on - 01/10/2024 21:26:38 :::CIS 6 2024:HHC:9409 in acquitting the accused. Hence, it was prayed that the present petition be allowed and the leave to appeal be granted.
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9. A notice of the application was issued to the respondent. The respondent did not appear before the Court despite service. Hence, the respondent/accused could not be heard.
10. I have heard Mr. Lokender Kutlehria, learned Additional Advocate General, for the applicant/State. He submitted that the learned Trial Court erred in acquitting the accused. It was duly proved by the Cyber Tipline Report that the video was uploaded from the account of the accused. Learned Trial Court ignored the report. The CD was produced before the Court and the Court could have watched the same. The accused could not have been acquitted on the ground that the CD was not played in the Court. Therefore, he prayed that the present petition be allowed and the leave to appeal be granted to the State.
11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
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12. The Cyber Tipline Report (Ex.PW3/A) shows that a child pornographic video was uploaded on the messenger by .
Monu Shehjada. His date of birth was mentioned as 28.9.1990 and his approximate age was mentioned as 29 years. The video was uploaded on June 29, 2020, from Amb, Himachal Pradesh with the IP Address specified in the Cyber Tipline Report. It was specifically mentioned in the Cyber Tipline Report that in case of any further information, the e-mail address or the phone number mentioned in the report should be contacted. There is no evidence on record that the police had contacted the person mentioned in the phone number or the e-mail ID. This was necessary to ensure the authenticity of the report. It was essential for the police to examine the person to prove the contents of the report. It was laid down by the Bombay High Court in Sir Mohammed Yusuf v. D, 1961 SCC OnLine Bom 5: AIR 1968 Bom 112 that the truthfulness of the contents of a document can be proved by examining the person who had written it. It was observed at page 118:
20....The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is ::: Downloaded on - 01/10/2024 21:26:38 :::CIS 8 2024:HHC:9409 to set at nought the well-recognised rule that hearsay evidence cannot be admitted. This question has been discussed by Halsbury at paragraph 533 at p. 294 (Halsbury's Law of England, 3rd Edition, Vol. 15) under the .
heading 'Hearsay' says Halsbury:
".. .. .. Statements in documents may also be hearsay. So, if A had taken counsel's opinion before acting, the contents of the opinion would be admissible for the same purpose, but not to prove the truth of any statement of fact therein".
21. In paragraph (534) Halsbury has discussed the reasons for the rejection of hearsay evidence and says:
"The reasons advanced for the rejection of hearsay are numerous, among them being the irresponsibility of the original declarant, the depreciation of truth in the process of repetition, the opportunities for fraud which its admission would offer, and the waste of time involved in listening to idle rumour.
The two principal objections, however, appear to be the lack of an oath administered to the originator of the statement, and the absence of opportunity to cross-examine him."
13. This Court took a similar view in UCo Bank vs. Durga Dass 1995 (1) Shim. LC 497 = 1995 ILR (HP) 110 and observed:
18. Thus, on the basis of the Law of Evidence Act and the guidelines, which can be taken note of from the cases decided by the apex Court and referred to above, it can safely be said that merely exhibiting a document will not absolve the party, relying on the document, from proving its execution and the contents thereof in accordance with law especially when the document is a private document, the scribe and the person who executed it, are the witnesses who alone could successfully and legally prove such a document.::: Downloaded on - 01/10/2024 21:26:38 :::CIS 9
2024:HHC:9409
14. Similar is the judgment in Narbada Devi Gupta v.
Birendra Kumar Jaiswal, (2003) 8 SCC 745: 2003 SCC OnLine SC .
1204 wherein it was observed at page 751:
"16. Reliance is heavily placed on behalf of the appellant in the case of Ramji Dayawala & Sons (P) Ltd. [(1981) 1 SCC 80] The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as admitted documents."
15. Thus, the prosecution cannot take any advantage of the Cyber Tipline Report to prove its case.
16. Rakesh Kumar (PW4) stated that he was called to the Police Station and an inquiry was made regarding the video. He disclosed that no video was received by him on his mobile phone. He was permitted to be cross-examined. He denied that he had told the police that he had received the video but the clip was deleted by him. He was contradicted with his previous ::: Downloaded on - 01/10/2024 21:26:38 :::CIS 10 2024:HHC:9409 testimony but he denied the same. It is apparent from his statement that he has not supported the prosecution case that .
the accused had forwarded the video to him and no advantage can be derived from his testimony by the prosecution.
17. The police had also seized the mobile phone of the accused. It was sent for analysis to RFSL, Dharamshala. As per the report (Ex.PW6/P6), the mobile phone and the memory card were carefully examined. The data related to child pornography w.e.f. 1.6.2020 till 31.7.2020 was not found present in the extracted data of the mobile phone, SIM card and memory card.
This shows that there was no pornographic video on the mobile phone of the accused. This falsifies the prosecution version that the accused had uploaded the video from his mobile.
18. The police obtained the customer application form along with the identity proof. Aadhar card was furnished as the proof of identity which mentions the date of birth of the accused as 20.1.1991, which is contrary to the date of birth mentioned in the Cyber Tipline Report. Hence, the proof of identity taken into possession by the police from the mobile service provider does not match the Cyber Tipline Report.
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19. There is no other evidence connecting the accused with the commission of crime. HASI Bhaktwar Singh (PW1) has .
not stated anything about the involvement of the accused.
Suresh Kumar (PW2) was the witness to the transfer of the content to the CD and did not name the accused. Inspector Indu Devi (PW8) conducted the investigation and did not show the involvement of the accused. Devinder Verma (PW5) proved that the mobile number was issued to the accused but he did not prove that the accused had uploaded the video. HC Pramod Singh (PW6) handed over the mobile phone to RFSL, Dharamshala and LC Soni (PW7) carried the mobile phone to RFSL, Dharamshala. Their testimonies also do not prove that the accused had uploaded the video. Charu Sharma (PW8) conducted the investigation and she was not a witness to the uploading of the video. Darshan Singh (PW9) prepared the challan and has not stated anything about the uploading of the video.
20. Thus, the learned Trial Court had rightly held that the prosecution had not succeeded in establishing its case beyond reasonable doubt and acquitted the accused. There is no reason to grant the leave to appeal in the present case.
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21. Hence, the present petition fails and the same is dismissed.
.
(Rakesh Kainthla)
Judge
1st October, 2024
(Chander)
r to
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