Bangalore District Court
State By Hal Police Station vs No.1 To 4 Appeared And They Are Enlarged on 11 March, 2022
IN THE COURT OF THE I ADDL.CMM: BENGALURU
Dated this the 11th day of March 2022.
Present: Shri Anand T Chavan, B.Com., LL.B(Spl.).
I Addl. C.M.M BENGALURU.
JUDGMENT U/s. 355 Cr.P.C.,
Case No. : C.C.No.28579/2019
Date of Offence : 19-7-2019
Name of complainant : State by HAL Police Station,
Bengaluru.
(By Learned Sr. APP)
Name of accused : 1. Venugopal S/o Veeraswamy
Age : 36 years, Editor-
Suddi Samachar, On-line
News Portal, HBR Lay out,
Bengaluru.
2. Hemanth C.D.
S/o Dasegowda C.T.
aged 23 years,
r/o Srilakshmi
Ranganathaswamy Nilaya,
8th cross, Saraswathipuram,
Tumkur,
Perm. address:
Srilakshmi
Ranganathaswamy Nilaya,
Chikkahonnudike,
Sasalu Post, Gulur Hobli,
Tumkur district.
2 C.C.No.28579/2019
3. Nawaz Pasha
S/o Akram Pasha,
aged 27 years, R/o No.66,
4th cross, Farookinagar,
Padarayanapura,
Bengaluru,
4. Ashok Gowd
S/o Cheluva Rangaiah,
aged 38 years, r/o No.24,
Shayi Garments road,
Chikkagollarahatti,
Magadi main road,
Bengaluru.
(By Sri. Sathyanarayana Advo.
for A.1 & 4, S.J. Associates Advos. for
A.3, Sri. Ganesh G. Advo, for A.2)
Offences complained off: U/s.67(A) of I.T. Act & 109 of
IPC
Plea of accused : Pleaded not guilty
Final Order : Accused are acquitted
Date of Order : 11-03-2022.
JUDGMENT
Police Inspector HAL P.S. has filed this charge sheet against the accused No.1 to 4 for the offences punishable under Sections 67(A) of Information Technology Act and 109 of IPC.
3 C.C.No.28579/2019
2. Brief facts of prosecution case are that :- On 19.07.2019 Accused No.1, being editor of On-line News portal with an intention to defame and insult one Aravind Limbavali, Member of Legislative Assembly, ( hereinafter referred as aggrieved person) created fake and sexually explicit video of said MLA with C.W.2 and published the same in said on-line news portal. Further accused No.1 abetted other persons, including accused Nos.2 to 4 to circulate said video in social media plot form. The said fake video was posted and circulated in several groups of face book and WhatsApp and further accused Nos.2 to 4 shared said fake and sexually explicit video in social media platforms with an intention to defame aforesaid MLA knowing fully well that they are circulating fake sexually explicit content. Thereafter on 19.07.2019, C.W.1 who is representative of aggrieved person lodged first information before HAL PS, which was registered by 4 C.C.No.28579/2019 them in their P.S.Cr.No.315/2019 and FIR is issued. After completion of investigation, I.O. filed charge sheet against accused persons for above offences.
3. After filing of this charge sheet, cognizance of above offences is taken and summons is issued. Accused No.1 to 4 appeared and they are enlarged on bail. Charge sheet copy is furnished to accused persons u/s 207 of Cr.P.C and charge is framed. Accused have not pleaded guilt of alleged offences and they have claimed to be tried.
4. In order to prove the guilt of the accused, prosecution has examined 14 witnesses as P.Ws.1 to 14 and got marked 79 documents as per Exs.P1 to P79. Further M.O.1 to 5 are also identified. After completion of prosecution evidence, statement of the accused as required under Section 313 of Cr.P.C. has been recorded. The accused have denied the 5 C.C.No.28579/2019 incriminating evidence against them and they have not led any defence evidence.
5. On the basis of charge sheet allegation, the following points arose for my consideration:
1. Whether prosecution proves beyond reasonable doubts that on 19.07.2019 accused no.1 being editor of Suddi Samachar On-line news portal created and published a fake and sexually explicit video of aggrieved person and C.W.2 in said on-line news portal and accused No.2 to 4 circulated said fake and sexually explicit video in WhatsApp and Facebook groups with the help of electronic devices and mobile phones and thereby Accused No.1 to 4 have committed offence punishable under section 67(A) of Information Technology Act?
2. Whether prosecution further proves beyond reasonable doubts that on 19.07.2019 accused No.1 being editor of Suddi Samachar On-line news portal after creating and publishing aforesaid fake and sexually explicit video of aggrieved person and C.W.2, he abetted other persons to circulate the same in social media platforms and accused No.2 to 4 circulated such fake 6 C.C.No.28579/2019 video in WhatsApp and Facebook groups they also abetted other persons to further transmit aforesaid sexually explicit video and thereby accused No.1 to 4 have committed offence punishable under Sec.109 of IPC?
3. What order ?
6. Heard arguments of learned Sr.APP and learned counsel for accused persons. Perused oral and documentary evidence adduced by the prosecution. The following are findings to above points.
Point No.1 and 2 : In the Negative Point No.3: As per final order, for the following:
REASONS
7. Point No.1 and 2:- These points are taken together for consideration as findings on one point have bearing on other points.
8. P.W.1 Girish S/o Dathathreya has testified in his evidence that on 19-7-2019 he found an objectionable material of aggrieved person and he 7 C.C.No.28579/2019 lodged first information before HAL PS. He has identified first information lodged by him as per Ex.P1, his signature as per Ex.P1(a) and further stated that contents of aforesaid video uploaded in face book were morphed and sexually explicit. He has further stated that he lodged information against Suddhi Samachar and Srinivas Gubbi, thereafter on 22-7-2019 as per direction of police he produced two San disc pen drives of 8 GB each containing aforesaid objectionable video. P.W.1 has further testified that police watched said video and thereafter they sealed in white cloth in presence of C.W.3 and 4 by conducting mahazar as per Ex.P2 and he has identified his signature as Ex.P2(a). However, in his further chief examination during confrontation of seized two pen drives, P.W.1 has stated that it were not pen drives given by him to police. Further he has partly turned hostile stating that till today he did not get any information from police as to who had uploaded 8 C.C.No.28579/2019 aforesaid objectionable material in social media plot form. In cross examination by defence side, P.W.1 has admitted that he was not given any authorization to lodge first information and to depose in the case. He has also admitted that he is seeing accused No.1 to 4 for the first time during his evidence. Hence evidence of P.W.1 is not helpful for prosecution to prove the guilt of accused.
9. P.W.2 Shankar S/o Venkaswamy and P.W.3 Abbas S/o Abdul Suban, who are said to be Mahazar witnesses of Ex.P2 under which the Pen drive given by P.W.1 were seized, have turned hostile and testified in their evidence that they signed Ex.P2 mahazar as per Ex.P2(b) and P2(c) respectively about 2 years back in police station as per request of police and they have specifically stated that police have not showed them any articles during Mahazar. Though P.W.2 and 3 are treated as hostile and cross examined at length by learned Sr.APP, nothing is elicited from their mouth to 9 C.C.No.28579/2019 prove seizure of aforesaid pen drives. Hence in view of hostile evidence of these two witnesses and in view of denial of P.W.1 in identifying said pen drives, prosecution has filed to prove seizure of said pen drives as per Ex.P2 mahazar.
10. P.W.4 Dr.Kumuda Rani D/o Mukundappa Deputy Director of FSL, Madivala Bengaluru has testified that she is examining matter related to Cyber Crimes and IO of this case forwarded a pen drive of 8 GB memory to her, which is marked as D1 by her and their office issued acknowledgement as per Ex.P3. She has further stated that thereafter from 6-9-2019 to 9-9-2019, she conducted forensic examination of said pen drive by using Access data image 4.2.0.13 forensic software. P.W.4 has further testified that the extracted data contains one video and said video was analyses by using FTK6.4 software and after analyzing it, it was found that it was not genuine. She has further stated that in that regard she has given report 10 C.C.No.28579/2019 as per Ex.P4 and issued specimen sealed document as per Ex.P5. Further she has identified her signatures on said documents as per Ex.P4(a) and P5(a) and above pen drive as per M.O.1. In cross examination, P.W.4 admits that on frame analysis, she came to conclusion that video was not genuine and she could not identify the persons in video nor she can say contents of video perfectly. However evidence of this witness does not help prosecution to prove alleged act of creation of video by accused no.1, much less to prove it's transmission by other accused persons.
11. P.W.5/ C.W.2 Chetan Kumar S/o Radhakrishna has testified in his evidence that his friends informed him that some objectionable post is uploaded in Facebook and other social media platforms in respect of a person who looks like him and aggrieved person, he had seen the video and P.W.1 lodged first information in the matter. He has further stated that police enquired him, he watched said video and the 11 C.C.No.28579/2019 person in said video was not him. He has further identified his statement u/s 164 of Cr.P.C. as per Ex.P6 and his signature on it as per Ex.P6(a). However he has also turned hostile by stating that till today he does not know who uploaded above video. In cross examination by defence side, his entire evidence is denied in toto.
12. P.W.6 Harish S/o. Mallegowda, PW.7 Lokesh S/o. Subramani, P.W.8 Balraj S/o. Govindswamy Naidu and P.W.9 Magesh S/o. Selvapathi, who are said to be independent witnesses of this case have completely turned hostile by testifying that they do not know anything about this case, police have not inquired them and they have not recorded their statement. Though P.Ws.6 to 9 are treated as hostile and cross examined at length by learned Sr.APP, nothing worthwhile is elicited from their mouth to prove alleged guilt of accused. P.Ws.6 to 9 have denied 12 C.C.No.28579/2019 to have given statement before I.O. as per Exs.P7 to P10.
13. P.W.10 Amarnath K Lamani S/o Krishnappa H.C. in HAL PS has testified that P.W.1 had sent a disputed video link to his mobile phone through WhatsApp and he took print out of said video link after downloading it in Police station. He has further stated that he handed over print outs as per Ex.P11, his signature as per Ex.P11(a) and he has also identified pages of said print out as per Exs.P12 to P35. Further he has identified print outs of link as per Ex.P36 and his certificate u/s 65(B) of Evidence Act as per Ex.P37. In cross examination by defence side, P.W.10 has admitted that he has not given any documents to show that P.W.1 had forwarded Ex.P12 to 35 video links and screen shots to his mobile. He has further admitted that he cannot say the exact dates on which said screen shots were sent. He has further admitted that he has not given any documents 13 C.C.No.28579/2019 with regard to transfer of aforesaid data from his mobile phone to DVD. The entire evidence of this witness is also denied by defence side. However P.W1 has not whispered anything with regard to forwarding aforesaid messages from his mobile phone to P.W.10 and hence evidence of this witness does not inspire confidence of this Court in respect of above documents.
14. P.W.11 Amjad Pasha S/o. Amjad Pasha and P.W.12 Dinesh Babu S/o.Kumar M. Who are witnesses of Exs.P38 to 40 seizure mahazars of mobile phones of A2 to 4 have also completely turned hostile by testifying that they signed Exs.P38 to 40 Mahazars about 3 years back in HAL Police station, when they had been to said PS for their personal work and they do not know contents of said mahazars. They have further stated that Police have not shown any persons nor seized any mobile phones in their presence as per above mahazars. Though they have identified their 14 C.C.No.28579/2019 signatures on Exs.P41 to 43 chits, they have stated that they had put their signatures on blank papers. Though these two witnesses are also treated as hostile and cross examined at length by learned Sr.APP nothing is elicited from their mouth to prove seizure of mobile phones from accused No.2 to 4 as per case of prosecution under above mahazars. Hence evidence of these two material seizure mahazar witnesses do not help prosecution to prove guilt of accused.
15. P.W.13 S.R.Chandradhar S/o T.Rajashekar the then PI of HAL PS and one of I.O. of this case has testified in his evidence that on 19-7-2019 C.W.1 lodged Ex.P1 first information, he registered the case under said PS Cr.No.315/2019 and issued FIR as per Ex.P44. He has further stated that on same day he filed requisition seeking deletion of objectionable posts in social media plat forms as per Ex.P45 and on next day the court permitted said requisition. P.W.13 has further stated that he instructed C.W.17 to 15 C.C.No.28579/2019 consolidate above posts uploaded by accused and C.W.17 submitted Ex.P11 report after consolidation of list of such websites. He has identified such consolidated documents as per Ex.P36 and notice issued to C.W.1 calling upon him to produce video clips as per Ex.P46. P.W.13 has further testified that on 22-7-2019 C.W.1 produced one pen drive consisting of such video clips, he issued notice to C.W.3 and 4 panchas as per Exs.P47 and P48, he secured them and seized two pen drives under Ex.P2 mahazar. P.W.13 has further stated that he retained said pen drives as per Ex.P14 PF, he recorded statements of C.Ws.3 and 4 panchas. However, said panchas have turned hostile and P.W.1 has disputed that seized pen drives were given by him. Hence evidence of P.W.13 does not help prosecution to prove the seizure of aforesaid pen drives. P.W.13 has further testified that on 22-3-2019 he requested Cyber crime police to furnish details about the link under which 16 C.C.No.28579/2019 objectionable video was uploaded. P.W.13 has further testified that on 24-7-2019 he forwarded letter to Facebook seeking information about aforesaid links and on 26-7-2019 he received reply to send each and every link separately by mentioning case number. He has further stated that on same day he issued separate notices to Facebook by mentioning link and case number u/s 91 of Cr.P.C. and he has identified copies of said notices as per Exs.P52 to P73. P.W.13 has further identified the enclosed print outs of said links as per Exs.P12 to P35. P.W.13 has further testified that on 19-8-2019 he received e-mail from Facebook wherein it was mentioned that victim can directly approach helpline of Facebook and accordingly he intimated the same to victim. Hence it shows that P.W.13 could not secure information as to who created the aforesaid disputed links from Facebook. P.W.13 has further stated that on 26-8-2019 he forwarded seized pen drives to FSL 17 C.C.No.28579/2019 through C.W.15 as per Ex.P74 letter and he identified enclosed documents as per Ex.P74(b) to P74(e). P.W.13 has further stated that on same day he received report as per Ex.P75 and on 25-9-2018 he recorded statement of C.W.2. He has further stated that on 26-9-2018 he got recorded statement of C.W.2 before 11th SCCH, Bengaluru as per Ex.P6 and thereafter on 29-9-2019 he received report of FSL as per Exs.P4 & P5. He has identified seized pen drives as per M.Os.1 & 2. In cross-examination by defence side P.W.13 has admitted that P.W.1 has not produced any authorisation letter of victim and he is not the victim of the case. He has further stated that the aggrieved person had refused to give statement. The entire evidence of P.W.13 is denied by defence side and it is suggested to him that though M.O.1 and 2 pen drives were not given by P.W.1, he himself has created said pen drives. It is further averred that there is no nexus between contents of said pen drives 18 C.C.No.28579/2019 and accused persons. It is further suggested that he has registered a false case due to political pressure and he is deposing falsely. P.W.13 has denied all the suggestions.
16. P.W.14 Mohammed M.A. S/o Abdul Azeej the then PI of HAL PS and other IO of this case has testified that on 25-11-2019, he issued request letter to CID, Cyber Cell seeking information about disputed video links as per Ex.P76 and on same day he sent an e-mail to concerned Cyber crime section seeking information about above links. He has further stated that on same day Cyber crime police forwarded notices u/s 91 and 102 of Cr.P.C. to Facebook and instagram and on 26-11-2019 he obtained information about suspected accused as per CDR document. P.W.14 has further testified that he deputed PSI and staff members to secure accused persons and he recorded statements of C.Ws.11 to 14. However, P.W.6 to 9, who are cited as C.Ws.11 to 14 in charge sheet have 19 C.C.No.28579/2019 turned hostile and they have denied to have given statement before I.O. as per Exs.P7 to P10. P.W.14 has further stated that on 27-11-2019 he secured accused No.2 to 4 and recorded their statements and on 28-11-2019 accused No.2 produced Samsung mobile phone used for sharing objectionable video link before him, which was seized by him before C.Ws.8 and 9 panchas as per Ex.P38 mahazar. He has further stated that he retained said mobile as per Ex.P77 PF. P.W.14 has further testified that on 28-11-2019 accused No.4 also produced his Vivo 18 pro mobile phone, which was seized by him before C.Ws.8 and 9 panchas as per Ex.P39 mahazar and he has also identified signature of accused No.4 as per Ex.P39(d). P.W.14 has further stated that he retained said mobile as per Ex.P78 PF. P.W.14 has further testified that on 28-11-2019 accused No.3 produced his OPPO 11 pro mobile phone, which was seized by him before C.Ws.8 and 9 panchas as per Ex.P40 mahazar and he has 20 C.C.No.28579/2019 also identified signature of accused No.3 as per Ex.P40(d). P.W.14 has further stated that he retained said mobile as per Ex.P79 PF. P.W.14 has further testified that thereafter he has filed preliminary charge sheet before this court on the basis of materials collected and he has identified aforesaid seized mobile phones as per M.Os.3 to 5. However, C.Ws.8 and 9 panchas have been examined as P.W.11 and 12 and they have also completely turned hostile. Hence seizure of M.O.3 to 5 mobile phones from the custody of accused No.2 to 4 is also not proved to the satisfaction of the court. In cross-examination by defence side, P.W.14 has also admitted that victim did not come to police station to give his statement. Further though P.W.14 has produced aforesaid CDR document, he has not explained as to how said document proves the nexus between accused persons and alleged act of posting disputed video to social 21 C.C.No.28579/2019 media platform. The entire evidence of this witness is also denied by defence side in toto.
17. Thus On perusal of evidence of prosecution it shows that except evidence of official witnesses, absolutely there is nothing on record to prove the alleged act of accused No.1 to 4 in transmitting alleged fake and sexually explicit video of aggrieved person and P.W.5. Further P.W.1 himself has turned hostile by denying M.O.1and 2 pen drives to be pen drives given by him to I.O. Further seizure of said pen drives is also not satisfactorily proved as per Ex.P2 mahazar in view of hostile evidence of P.Ws.2 and 3. Further the other victim i.e., C.W.2/P.W.5 has also turned hostile by testifying that till today he does not know as to who posted aforesaid objectionable video to news portal and who further circulated it. The evidence of FSL expert i.e., P.W.4 though proves that the alleged video is fake one, it does not help prosecution in any manner to prove 22 C.C.No.28579/2019 nexus between aforesaid video and accused persons. Further the so called independent witnesses i.e., P.Ws.6 to 9 have completely turned hostile. Further P.Ws.11 and 12, who are mahazar witnesses of M.O.3 to 5 mobile phones have also tuned hostile and hence seizure said mobile phones are also not proved. Further nothing is mentioned with regard to referring M.O.3 to 5 mobile phones for expert opinion in order to prove that accused No.2 to 4 had transmitted objectionable video in social media plat form as per case of prosecution. Hence evidence of official witnesses does not help prosecution in any manner to prove that accused No.1 created and uploaded fake and sexually explicit video of aggrieved person and P.W.5 and thereafter accused No.2 to 4 circulated it in social media. Further there is no evidence of any act of abatement by accused No.1 to 4 in commission of alleged offece as per case of prosecution. Hence prosecution has failed to 23 C.C.No.28579/2019 prove beyond all reasonable doubts that accused No.1 to 4 have committed offences punishable under Sec.67(A) of Information Technology Act and 109 of IPC. Hence point no.1 and 2 are answered in the Negative.
18. Point No.3: -
For the reasons stated and findings given on point No.1 and 2 , following is:
ORDER Acting under Section 248(1) of Cr.P.C. the accused No.1 to 4 are acquitted for the offences punishable under Sections 67(A) of Information Technology Act and 109 of IPC.
The bail bond and surety bond executed by accused No.1 to 4 shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
Unclaimed M.O.1 and 2 pen drives shall be destroyed after expiry of appeal period and M.O.3 to 5 mobile phones shall be returned to 24 C.C.No.28579/2019 accused Nos.2 to 4 after expiry of appeal period.
( Typed by me directly on computer, revised, corrected by me and then pronounced in open court on this the 11 th day of March 2022).
(Anand T Chavan) st 1 Addl. CMM., Bengaluru ANNEXURE List of witnesses examined for prosecution :-
P.W.1, Girish Bharadwaj, P.W.2, Shankar, P.W.3, Abbas, P.W.4, Dr.Kumudarani, P.W.5, Chetan Kumar, P.W.6, Harish, P.W.7, Lokesh, P.W.8, Balaraj, P.W.9, Magesh, P.W.10, Amarnath K Lamani, P.W.11, Ajmal Pasha, P.W.12, Dinesh babu, P.W.13, S.R.Chandradhar, P.W.14, Mohammed M.A.;
List of exhibits marked for prosecution :-
Ex.P1, First information,
Ex.P1(a), Signature of P.W.1,
Ex.P1(b), Signature of P.W.13,
Ex.P2, Mahazar,
Ex.P2(a), Signature of P.W.1,
25 C.C.No.28579/2019
Ex.P2(b), Signature of P.W.2,
Ex.P2(c), Signature of P.W.2,
Ex.P3, Acknowledgement,
Ex.P4, Report,
Ex.P4(a), Signature of P.W.4,
Ex.P5, Specimen seal document,
Ex.P5(a), Signature of P.W.4,
Ex.P6, Statement,
Ex.P6(a), Signature of P.W.6,
Ex.P7, Statement of P.W.6,
Ex.P8, Statement of P.W.7,
Ex.P9, Statement of P.W.8,
Ex.P10, Statement of P.W.9,
Ex.P11, Report,
Ex.P11(a), Signature of P.W.10,
Ex.P11(b), Signature of P.W.13,
Ex.P12 to
Ex.P35, Printouts of screen shots and video
link obtained from page No.37, 39, 41, 43, 45, 47, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66, 68, 70, 72, 74, 76, 78, 80, 82, Ex.P36, Printout of link obtained from page No.8 to 22, Ex.P37, Certificate u/s 65(B) of Evidence Act, Ex.P37(a), Signature of P.W.10, Ex.P38 to Ex.P40, 3 mahazars, Ex.P38(a)to Ex.P40(a), Signatures of P.W.11, Ex.P38(b)to Ex.P40(b), Signatures of P.W.12, Ex.P38(c) to Ex.P40(c), Signature of P.W.14, Ex.P39(d), Signature of accused No.4, Ex.P40(d), Signature of accused No.3, 26 C.C.No.28579/2019 Ex.P41 to Ex.P43, Slips, Ex.P44, FIR, Ex.P44(a), Signature of P.W.13, Ex.P45, Requisition, Ex.P45(a), Signature of P.W.13, Ex.P46, Notice, Ex.P46(a), Signature of P.W.13, Ex.P47 & Ex.P48, Notices, Ex.P47(a) & Ex.P48(a), Signatures of P.W.13, Ex.P49, PF No.95/2019, Ex.P49(a), Signature of P.W.13, Ex.P50 to Ex.P73, Notices issued to Manager of Facebook an instagram, Ex.P50(a) to Ex.P73(a), Signatures of P.W.13, Ex.P74, Letter, Ex.P74(a), Signature of P.W.13, Ex.P74(b) to Ex.P74(e), Copy of description of articles, certificate of P.W.13, invoice and passport, Ex.P75, Report, Ex.P75(a), Signature of P.W.13, Ex.P76, Request letter, Ex.P76(a), Signature of P.W.14, Ex.P77, PF No.137/2019,, Ex.P77(a), Signature of P.W.14, Ex.P78, P.F.No.138/2019, Ex.P78(a), Signature of P.W.14, Ex.P79, P.F.No.139/2019, Ex.P79(a), Signature of P.W.14;27 C.C.No.28579/2019
List of material object :
M.O.1 & 2, Pen drives, M.O.3 to 5, Mobile phones;
List of Witnesses examined for defence:-
NIL List of documents marked for defence:-
NIL 1st Addl. CMM., Bengaluru.28 C.C.No.28579/2019
11-3-2022 State by Sr.APP Accused No.1 to 4 C/B For Judgment (Judgment pronounced in the Open Court) ORDER Acting under Section 248(1) of Cr.P.C. the accused No.1 to 4 are acquitted for the offences punishable under Sections 67(A) of Information Technology Act and 109 of IPC.
The bail bond and surety bond executed by accused No.1 to 4 shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
Unclaimed M.O.1 and 2 pen drives shall be destroyed after expiry of appeal period and M.O.3 to 5 mobile phones shall be returned to accused Nos.2 to 4 after expiry of appeal period.
ACMM, Bengaluru.