Calcutta High Court (Appellete Side)
Riki Das @ Babai @ Goutam Das vs The State Of West Bengal & Anr on 24 April, 2023
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
C.R.A 272 of 2021
With
CRAN 2 of 2022
Riki Das @ Babai @ Goutam Das
versus
The State of West Bengal & Anr.
For the Appellants : Mr. Mrityunjoy Chatterjee
Mr. Manas Das
Mr. Debapriya Majumder
For the State : Mr. S. G. Mukherji, ld. PP
Mr. Imran Ali
Mrs. Debjani Sahu.
For the O.P. No.2 : Mr. Dipanjan Dutt
Mr. Surajit Saha
Heard On : 13.04.2023 & 20.04.2023 & 24.04.2023
Judgement On : 24.04.2023.
Tirthankar Ghosh, J. :
The present appeal has been preferred against the judgement and order of conviction and sentence dated 26.08.2021 passed by the Learned Special Judge, POCSO Court, Sealdah in Special Trial No. 2 05(12)2020 arising out of Special Case No. 40 of 2020 wherein the learned trial court was pleased to hold the appellant guilty for commission of offence under Section 12 of the POCSO Act and Section 66E of the Information and Technology Act, 2000(hereinafter referred to as the 'I. T Act') and sentenced him as follows:-
1. imprisonment for three years and to pay fine of Rs.3000/- i.d., to suffer rigorous imprisonment for one month for the offence punishable under Section 12 of the POCSO Act.
2. for the offence punishable under Section 66E of the I.T. Act, imprisonment for three years and to pay fine of Rs.6000/-, in default to suffer rigorous imprisonment for two months.
The present case was initiated on the basis of a complaint lodged by the 'X' (hereinafter referred to as the 'complainant') with the Officer- in-Charge, Beliaghata Police Station on 20.09.2020. On such complaint being received by the Police Station, Beliaghata P. S. Case No. 188 dated 20-09-2020 was registered for investigation.
The allegations made in the letter of complaint were to the effect that the complainant who is aged about 16 years, was residing within the jurisdiction of the said Police Station. On 20.09.2020 at about 7.30 am in the morning she received a phone call from her elder sister Tulika Mistry who represented that her obscene pictures were uploaded and available at her other facebook account. She came to know that her 3 obscene pictures were available at some other facebook account and the same were sent to her by Tulika Mistry through whatsapp. After seeing the pictures, the complainant understood that the said photographs were not uploaded by her and she realized that Riki @ Babai Das with whom she had friendship and for two consecutive days had video chat did the mischief. She alleges that she had shown her breasts in good faith of which screenshots were taken by the accused without her knowledge. The accused created a fake facebook account which was in her name, from the facebook settings it reflected that the fake facebook account was created through the mobile number 6291830256. The fake facebook account had URL number facebook.com/profile.php and ID no.100055564146665. She requested the Police Authorities to take requisite legal steps against the accused and informed that the address of Riki Das is 97, K. G. Bose Sarani, Kolkata -85.
On completion of investigation, Investigating Officer submitted charge-sheet against the appellant, Riki Das under Section 12 of the POCSO Act read with Section 66D/66E of the I. T. Act.
After supply of copies on which the prosecution intended to rely, charge was framed against the accused/appellant and the contents were read over to him to which he pleaded not guilty and claimed to be tried. 4
The prosecution in order to prove its case relied upon eleven (11) witnesses which included P.W-1, 'X' complainant/victim girl; P.W-2 Tulika Mistry, cousin sister of the complainant; P.W-3, Karabi Roy, aunt of the complainant; P.W-4, 'Y' father of the victim girl; P.W-5, Bappa Naskar, seizure list witness; P.W-6, Thirtha Ghosh, seizure list witness; P.W-7, Sosanna Rai, Judicial Magistrate, 2nd Court, Sealdah; P.W-8, Ratna Sarkar, LSI of Police attached to Narkeldanga P.S; P.W-9, Biren Roy Chowdhury, constable of police at Photographic Section, Scientific Wing, DD, Lalbazar; P.W-10, Gunasindhu Sahoo, reporting officer, Cyber Forensic and Digital Examination Laboratory at SDF Building, Sector -V under the ADG(CID), West Bengal; P.W-11, Amit Sen Gupta, Investigating Officer of the case.
The documents and materials which were produced in support of the case included Ext.1(written complaint), signature of PW1 on seizure list dated 21.09.2020 (Ext.2/1), signature of Pulak Mondal on seizure list dated 21.09.2020 (Ext.2/2), birth certificate (Ext.3), two signatures on the statement U/s 164 Cr.P.C (Ext.4/1 collectively), one printed photograph (Ext.5), signature of PW5 on the seizure list dated 21.09.2020 (Ext.6/1), signature of PW6 on the seizure list dated 21.09.2020 (Ext.6/2), statement under section 164 Cr.P.C of victim girl (Ext.4), statement of victim girl (Ext.7 with objection), six number of 5 print outs (Ext.11 to 11/5), brown colour envelope containing picture (Ext.11/a), green envelope (Ext.11/b), formal FIR (Ext.12), seizure list dated 21.09.2020 (Ext.6), seizure list dated 21.09.2020 (Ext.2), xerox copy of birth certificate (Ext.13), packet pasted with label (Ext.14), rough sketch map (Ext.15), five photographs (Ext.16 to Ext.16/4), five photographs (Mat Ext.1 to Ext.1/4), micro SD chip (Mat Ext. II), mobile phone (Mat Ext. III), SIM card (Mat Ext.III/1), memory card (Mat. Ext.III/2), brown envelope (Mat Ext.III/a), light green envelope (Mat Ext.III/b), Mobile phone (Mat Ext.IV).
In the present case after the prosecution evidence was closed and the examination of the accused under Section 313 Cr.P.C was over, opportunity was granted to the accused to adduce evidence in support of its case but the accused/defence did not tender any witness or documentary evidence in order to resist the prosecution version but relied upon the prosecution evidence to counter the prosecution version.
P.W-1 is the victim girl and the complainant of the case. She deposed that on 20-09-2020 at 7.30 am her cousin Tulika Mistry told her over phone that someone posted obscene photography in the facebook by opening a fake facebook account in her name Sunayna Kumari. Sunayana Kumari has also been mentioned in her own facebook account and her cousin sister sent her three photographs to 6 her whatsapp account. After seeing the said photographs she came to understand that she did not upload the said photographs in the facebook account and some unknown person uploaded the said three photographs by creating fake facebook in her name as Sunayana Kumari. In the said fake facebook account her phone number was not available and her own facebook account lies with her own phone number. In the fake facebook account her photographs were also uploaded in profile picture. Prior to four months of 20-09-2020, she had friendship with Riki Roy @ Babai through facebook. The said Riki Roy @ Babai sent friend request to her and she accepted the same and since then there was correspondence between them, which was continuing. The said conversation was through phone call and video call. During one of such video call the accused Riki told her to show her breast when at first she refused his request, however the accused repeatedly request her when she showed her breast at the time of video call. Riki by taking screen shot saved the said photographs of her breast and since then used to blackmail her by sending said photographs through messenger. She alleged that Riki used to threat her by saying that if she did not maintain the relationship with him, he will upload her said pictures/photographs in the facebook. Thereafter, Riki opened the fake facebook account in her name and uploaded the said 7 pictures/photographs in the said fake facebook account. She identified the accused in court. After having knowledge regarding the incident she informed the matter to her aunt as her parents were at their place of duty. She was accompanied by her aunt and cousin sister to the police station where she lodged the written complaint. She identified the complaint and her signature which was marked as Ext.1. On the next date, she along with her father had been to the Beliaghata Police Station and on her production police seized her birth certificate, her mobile phone with SIM and printed copies of the said photographs under seizure list where she identified her signature on the seizure list dated 21.09.2020 which was marked as Ext. 2/1. She also identified her father's signature on the seizure list which was marked as Ext. 2/2. The birth certificate was also identified by her which was marked as Ext. 3. She identified the photographs and mobile phone with SIM. She also gave her statement before the learned Judicial Magistrate and signed the said statement. Her two signatures on the statement under Section 164 of the Code of Criminal were marked as Ext. 4/1 collectively.
PW-2 Tulika Mistry is the cousin sister of the complainant. She deposed that on 20-09-2020 at about 7.30 am she noticed in her facebook that there are three pictures of her cousin sister namely 'X' in the name of Sunayana Kumari. She knew that 'X' had only one facebook 8 account in her name and in some of the photographs breast of 'X' were seen. She sent the said obscene photographs through whatsapp number to 'X'. Then 'X' told her that one Riki sent her friend request in the facebook and she accepted the said friend request. During conversation in the facebook and also in the mobile, while video calling, the accused Riki told her to show her breasts and for that reason, 'X' showed her breast, photographs of which by screenshot were taken by the accused in the mobile. 'X' also complained to her that as there was difference of opinion, the accused uploaded the pictures of obscene photographs in the facebook for such reason. She also accompanied 'X' to the police station and she was interrogated by the police authorities.
P.W3 Karabi Roy is the aunt of 'X'. She deposed that on 20-09- 2020 at about 7.30 am her daughter Tulika told her over phone that she had seen some obscene photographs of 'X' on the mobile and she accordingly informed the matter to her brother over phone as he was at his working place and his wife was also not available in the house. Her brother told her to go to the police station to lodge complaint. Accordingly, she along with 'X' and her daughter went to the police station. 'X' lodged the written complaint to the police authorities. She also deposed that he had seen the obscene pictures. She identified one of such pictures/photographs which was marked as Ext.5. After the 9 complaint was lodged, she returned to her brother's house. On the next day i.e., 21.09.2020 she along with her brother and 'X' went to the police station again and handed over birth certificate of 'X', mobile phone of 'X' and some photographs to the police.
P.W4 'Y' is the father of 'X'. She deposed that on 20-09-2020, her elder sister told him over phone that some obscene photographs were seen in the mobile of Tulika and at that time he was not at his house and after returning to his house he saw the photographs in the mobile. On 21.09.2020, he along with others had been to the police station and handed over birth certificate of 'X', mobile phone and photographs to the police who seized the same under the seizure list and signed. He identified his signature, which was marked as Ext. 2/2. The photographs are also shown to the witness who identified the same.
P.W5 Bappa Naskar is a seizure list witness. He deposed that he along with one Thirtha Ghosh were sitting at a tea stall when the police authorities arrived there with a boy. The boy went to his house and took out a black colour mobile phone from his house and handed over to the police. He signed on the seizure list and identified his signature therein which was dated 21.09.2020. The said seizure list was marked as Ext. 6/1.
10
P.W-6 is Thirtha Ghosh. He deposed in the same manner as P.W - 5 and identified his signature on the seizure list dated 21.09.2020 which was marked as Ext. 6/2. However, the witness identified the accused who handed over the mobile phone to the police.
P.W-7 is Sosanna Rai. She is the Judicial Magistrate, 2nd court, Sealdah who recorded the statement of the victim girl 'X' under Section 164 of the Code of Criminal Procedure. She identified the statement under Section 164 of the Code of Criminal Procedure which was in her own handwriting. She also identified the signature of 'X' on the statement which was marked as Ext.4.
P.W. 8, Ratna Sarkar is the Sub Inspector attached to Narkeldanga PS. She deposed that she was posted at Beliaghata PS under same capacity. She recorded the statement of the victim girl under Section 161 Cr.P.C as per her conversation. The contents of the statement was read over and explained to the victim girl. The statement was marked as Ext.7.
P.W. - 9 is Biren Roy Chowdhury. He was a constable of police attached to Photographic Section, Scientific Wing, DD, Lalbazar. He deposed that on 09.12.2020 as per instruction of the Officer-in-Charge, Scientific Wing, DD, Lalbazar he went to Beliaghata Ps and met with Inspector-in-Charge who took him to 47, Chaulpatti Road and told him 11 to take photographs of the place of occurrence and its surroundings. Accordingly, he took five photographs of the place of occurrence and its surroundings. The said photographs were taken by a digital camera with micro SD chip. He identified the five photographs which was marked as Mat. Ext. I to Ext.I/4 and also identified the said micro SD chip, which was marked as Mat. Ext. II.
P.W-10 is Gunasindhu Sahoo. He deposed that he was the reporting officer attached to Cyber Forensic and Digital Examination Laboratory at SDF Building, Ground floor, Salt Lake, Sector-V under the control of ADG(CID), W.B. On 30.09.2022, their office received intimation under case token no. 05/20/CFDEEL dated 30-09-2020, as per endorsement of Director-in-Charge on 11.01.2021 he opened the said case token no. 05/20/CFDEEL dated 30-09-2020 with the assistance of Shilpa Chakroborty and Swarnendu Das and found from the sealed packet one mobile phone with SIM card and one external memory card and six copies print out of screen shot photographs. On the basis of the requisition of the Investigating Officer, the same was examined. After examination a report was prepared. The report contains four sheets. He identified his signature with official seal on the report. The forensic examination report containing four sheets was marked as Ext.8. Along with the report the extraction report of mobile 12 data containing 48 sheets were kept as Annexure 'A' aggregating to 49 sheets which were collectively marked as Ext. 9. Soft copy of total extraction data of mobile in respect of said examination was given in a pen drive. After opening the sealed packet, the pen drive was taken out. The said pen drive and the envelope wherein the pen drive was kept were signed with official seal on the envelope. The pen drive was marked as Ext. 10 and the envelope were marked as Ext. 10/1. A sealed packet was opened in court and one brown colour envelope was taken out and from the brown colour envelope, a mobile phone was taken out and one SIM card and one memory card were also taken out. The said mobile phone, SIM card, memory card was examined and the witness signed on the backside of mobile phone and also signed his initials in the SIM card and memory card. He identified his signatures and initials. The mobile phone was marked as Mat. Ext. III, SIM card was marked as Mat. Ext. III/1 and memory card was marked as Mat. Ext. III/2. The envelope which was inside the brown colour envelope with mobile phone which had a signature with official seal was marked as Mat. Ext. III/a. The brown colour envelope by which investigating officer sent the mobile phone along with SIM card and memory card was marked as Mat. Ext.III/b. Another sealed packet was opened in court and one brown colour envelope was taken out and from the brown colour envelope six 13 copy print out were also taken out. The print outs were sent by the investigating officer to their office which was examined. The six number print out were marked as Ext. 11 to 11/5. The brown color envelope which was sent by the investigating officer along with the six number print out was marked as Ext. 11/a. The six print out and the brown colour envelope after examination containing the signature with official seal of the witness was marked as Ext. 11/b.
PW-11, Amit Sen Gupta is the Investigating Officer of the case. This witness narrated the manner in which investigation was carried out and the chronology by which he proceeded to apprehend the accused, collect the data, sent the same for forensic examination, collected the report, took assistance of the Photographic Section of DD, Lalbazar and also arranged for recording statement of the victim girl through a lady Sub Inspector and also by the Judicial Magistrate and on conclusion submitted chargesheet no. 161 dated 24-11-2020 under Section 12 of the POCSO Act read with Sections 66D/66E of the I. T. Act against the accused Riki Das @ Babai.
Mr. Chatterjee, learned advocate appearing for the appellant submitted that the appellant has been falsely implicated in connection with the instant case and the learned trial court erroneously convicted the appellant without appreciating the evidence. It was emphasized that 14 the primary duty of the prosecution during the trial is to lay down the foundational facts and then only the prosecution can claim for invoking the presumption. In this case, according to the learned advocate, none of the ingredients of Section 11 of the POCSO Act has been proved by the prosecution so as to convict the appellant and punish him under Section 12 of the POCSO Act. Learned advocate also emphasized that the nature of documents marked in evidence also do not qualify the necessary ingredients of Section 66E of the I. T. Act. Lastly, the learned advocate prayed for interference by this Court in respect of order of conviction and sentence passed by the learned trial court.
Mr. Dutt, learned advocate for the victim submitted that even if the oral evidence is taken into account, the ingredients of Section 11 of the POCSO Act is satisfied. Learned advocate, to that effect drew the attention of the Court to sub-Section (ii) of Section 11 which is set out as follows :
"Sexual harassment.- A person is said to commit sexual harassment upon a child when such person with sexual intent-
(i) ..................................................
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) ...................................................... "15
Reliance was placed on the deposition of PW-1 by the learned advocate to substantiate his contention.
Mr. Mukherjee, learned Public Prosecutor resisted the contention of the appellant and submitted that the prosecution by way of cogent evidence has proved its case and there is no room for interference in the judgement and order of conviction and sentence passed by the learned trial court.
In the present case, the documentary evidence placed by the prosecution along with the opinion of the expert assumes significant importance. Exhibit-2 is the seizure list dated 21.09.2020 by way of which the birth certificate of the victim and blue coloured VIVO mobile having connection No. 7439605623 were seized. The said seizures were effected pursuant to the same being produced by the victim 'X' and her father 'Y'. Exhibit-6 related to seizure of one black colour MI mobile having model number - M1903C3GI IMEI No. - 863982047668210/01, 863982047668228/01 Sl No.-c6c21ace7d06, with SIM No.-8697305120 (connection number) in slot-1, SIM No. 8991301804798922038SY and the same was seized pursuant to the identification of accused Riki Das @ Babai from his residence while he was in custody. The result of examination in the report of PW-10, Exhibit-8 is as follows : 16
"15. RESULT OF EXAMINATION The Digital device was forensically analyzed using the authorised software & hardware tools.
The cardinal rules of Computer Forensics have been followed during the entire process of analysis.
15.1 Data of the Mobile phone marked Exhibit-A has been extracted and analyzed by using Cellebrite UFED 4PC Ultimate Version:7.40.0.85 & Cellebrite Physical Analyzer Version:
7.45.0.96 the soft copy of the UFE report containing Device information, Contacts, Calender, Call Log, Chat history, Location, Image, Videos, Audio, sim data, Application, Text, Instant messages is given in the file named "REPORT-EX-A.PDF" under the folder named "05-20-CFDEEL" which is provided in HP Pendrive (64GB) Serial no.KGK64GS-IB marked as 05/20/CFDEEL. Hard copy of Extraction report is given in Annexure-A (Page No.01 to 02).
15.2 The SIM Card marked Exhibit-A1 has been extracted and analyzed by using Cellebrite UFED 4PC Ultimate Version: 7.40.0.85. The Hard copy of the UFED report is given in Annexure-A (page no.37 to 48).
15.3 The Data of Memory Card marked Exhibit-A2 could not be retrieved with the tools/software available in this laboratory. 15.4 Some of the images are retrieved from the mobile phone marked Exhibit-A may be construed relevant with the Exhibit-B, Soft copy is provided in the file named "REPORT-EX-A.PDF'', page no.3398 in HP Pendrive (64 GB) Serial no.KGK64GS-IB marked as 05/20/CFDEEL"
Exhibit-9 is Annexure 'A' to Exhibit-8 which has been admitted in evidence. One of the messages which was sent from 8697305120 (mobile 17 connection of accused Riki Das) to 7439605623 (mobile connection of victim 'X') on 18.09.2020 reflect as follows :
"Ajker kaj ta khub kharap korli er jonno onk poschate hobe."
The opinion of the expert at serial no. 15.4 states that some of the images retrieved from mobile phone marked as Exhibit-A (i.e. Redmi M- 1903C3GI) may be construed relevant with Exhibit-B (i.e. 6 screenshots).
On an analysis of the seizure list and the report of the expert, it is reflected that M-1903C3GI is the seized mobile set which was recovered pursuant to the identification made by the custody accused Riki Das @ Babai as is reflected in the seizure list Exhibit-6 and the same reveals presence of the images which were also handed over by the investigating agency and print out of screenshots being taken from the mobile of the victim 'X'. The oral evidence and the exhaustive report sent by the forensic laboratory along with the documents do corroborate the prosecution case and substantiate and prove the allegations made by the victim 'X' for the charges framed against the accused.
Having regard to the nature of such evidence which has surfaced, I am of the opinion that there is no scope for interference in the judgement and order of conviction and sentence passed by the learned Special Court in connection with Special Trial No. 05(12)2020 arising out 18 of Special Case No. 40 of 2020. The trial Court judgment is therefore affirmed.
Accordingly, the criminal appeal being CRA 272 of 2021 is dismissed.
Pending connected application is consequently disposed of. The appellant is on bail. His bail bond stands cancelled. The appellant is directed to surrender before the learned Trial Court/Special Court by 01.05.2023.
Department is directed to send back the lower court records along with a copy of this judgement immediately to the learned Special Court.
All parties shall act on the server copy of this judgement duly downloaded from the official website of this Court.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties upon compliance with all requisite formalities.
(Tirthankar Ghosh, J.)