Bangalore District Court
The State By P.S.I vs Shyamala W/O Madhusudhan on 1 April, 2022
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU
Present
Sri.Patil Veeranagouda S.,
B.Com. LL.M.
VIII ADDL.C.M.M., BENGALURU.
Dated this the 1st Day of April, 2022
C.C. No.10658/2014
Complainant:
The State by P.S.I.
High Grounds Police Station
(By Sr. Assistant Public Prosecutor)
Versus
Accused:
Shyamala w/o Madhusudhan
Age 50 years, r/at No.19/4
1st Main Road, Jayamahal
Layout, Bengaluru - 560 046.
(By Ms.Geetha Mishra Advocate)
PARTICULARS U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 10658/2014
2. The date of commission 21102011 to 01112011
of the offence
3. Name of the complainant Erica
2 C.C.No.10658/2014
4. Name of the accused Shyamala
5. The offence complained of U/s. 504 and 506 of IPC and
or proved 66(A) of I.T. Act
6. Plea of the accused and Pleaded not guilty
his/her examination
7. Final Order Accused is acquitted
8. Date of such order 01042022
JUDGMENT
The Police SubInspector of High Grounds Police Station has filed the final report against the accused for the offences punishable U/s. 504 and 506 of IPC and 66(A) of I.T. Act.
2. The prosecution case is that on 21102011 at No.28, Gowrikunj, Palace Cross Road, Bengaluru, the accused from her daughter's mobile number 9916541242 send messages by using filthy words to the mobile number 9342140005 of CW1 and gave life threat to CW1 and her son. Accordingly, CW1 3 C.C.No.10658/2014 lodged first information statement before the High Grounds Police. The said police have registered the case and issued FIR. After investigation the IO has filed the charge sheet against the accused for the above said offences.
3. The learned I ACMM Court, Bengaluru after taking the cognizance issued summons to the accused. In pursuance of summons the accused has appeared and by moving application obtained bail. The prosecution papers furnished to her in compliance of sec. 207 of Cr.P.C.
4. After hearing both the side, the learned I ACMM has framed the charges, read over and explained to the accused, wherein she pleaded not guilty and claimed to be tried.
5. On 06012016 in view of the memo filed by the Sr.APP of the learned I ACMM Court stating that Section 66(A) of I.T Act has been struck down by the Hon'ble Supreme Court. Hence, 4 C.C.No.10658/2014 the learned I ACMM by accepting the memo forwarded this case to this court as the remaining alleged offences are triable by this court.
6. Meanwhile it appears that the accused has preferred Crl.P.No.6558/2014 before Hon'ble High Court of Karnataka for quashing the entire proceedings of this case. On 2901 2019 the said petition was came to be allowed in part and only the offence punishable u/s 66(A) of I.T. Act 2000 was quashed against the accused. Accordingly my predecessor in office on 26042019 deleted the said offence from the charges framed against the accused.
7. To substantiate its case, the prosecution has examined seven witnesses as PW.1 to 7 and got marked nineteen documents as per Ex.P.1 to 19 and four material objects as per 5 C.C.No.10658/2014 MO1 to 4. During the cross examination of prosecution witnesses the accused got marked one document as Ex.D1.
8. Thereafter, the accused was examined U/Sec. 313 of Cr.P.C. to enable her to explain the incriminating evidence appeared against her in the evidence of prosecution witnesses. She denied the same and not chosen to lead her defence evidence. However, she stated that on 20102011 she has filed complaint with regard to theft of her mobile before High Grounds Police Station so this false case has been filed against her. Further she has filed memo with defence documents u/s 313 of CrPC.
9. Heard both sides and both parties have filed written arguments, perused the material available on record, the points that arise for my determination are:
6 C.C.No.10658/2014
1. Whether the prosecution proved beyond reasonable doubt that on 21102011 at No.28, Gowrikunj, Palace Cross Road, Bengaluru, the accused through her daughter's mobile number 9916541242 send messages by using filthy words to the mobile number 9342140005 of PW4 and to her son and thereby committed the offence punishable U/s.504 of IPC?
2. Whether the prosecution proved beyond reasonable doubt that on the above said date, time and place, the accused committed criminal intimidation to PW4 and thereby committed the offence punishable U/s.506 of IPC?
3. What order?
10. My findings on the above points are as under:
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : As per final order for the following:
7 C.C.No.10658/2014
REASONS
11. Points No.1 and 2: In order to avoid repetition of facts and discussion, I have taken both the points together for common consideration for sake of brevity.
12. In this case the first informant examined as PW4, the PSI who has registered the case and handed over the investigation to subsequent PSI as PW2, the subsequent IO who has investigated the matter and handed over further investigation to the PI as PW1, and the PI who after completion of the investigation filed the charge sheet against the accused as PW3. The witnesses to the mahazar were examined as PW5 and 6, the expert who has given report as PW7.
13. PW4 being the first informant has deposed that she knows the accused since 1998. Since 1998 she is using the mobile No.9342140005 and accused used to come to her house 8 C.C.No.10658/2014 and threatening her and also assaulting her since then. From 21102011 to 01112011 she has received obscene SMS and threat calls from the mobile ending with No.1242. Further she came to know that the mobile ending with No.1242 belongs to Chandini Khode, who is daughter of the accused. She further deposed that as she is having relationship with the present husband Madhusudhan as such the accused is having enmity with her. She further stated that in the messages sent by the accused it is stated that she is the legally wedded wife of Madhusudhan and she knows how to target her and she also sent threatening messages that see what will she do against her son. Such type of messages were already sent by the accused but she has deleted. The accused is residing at nearby plot and her son was very young and under the impression that the accused might have caused harm to her son she has kept quiet. On 06042013 another message came from 9 C.C.No.10658/2014 another mobile stating that "life of your son is under danger". Thereafter she came to know that this message was sent by accused and one Charumathi. On 14072013 she lodged first information as per Ex.P3.
14. She further deposed that on 16072013 again she went to police station and gave further first information statement as per Ex.P5. On 13082013 again police called her and directed her to give her SIM Card accordingly she gave her NOKIA mobile, SIM and charger which were already marked as MO1 to
3. The IO in the presence of PW5 and 6 opened the messages in her mobile the said mahazar was marked at Ex.P1 and the photographs of the said messages was marked at Ex.P2. Since the daughter of the accused lodged first information against her at the J.C.Nagar PS for that she has given the reply, copy of which is marked at Ex.P7, the police notice requesting her to give the mobile and SIM is marked at Ex.P8, the letter given by 10 C.C.No.10658/2014 her while submitting MO1 to 3 is marked at Ex.P9, the copy of the statement of one Nagalingaiah in Sheshadripuram PS in Cr.No.345/2012 marked at Ex.P10. Ten days after registering the said case the accused has assaulted her accordingly she has lodged first information before Bharatinagar PS, the certified copy of which is marked as per Ex.P11. The certified copy of the FIR registered in Bharatinagar PS in Cr.No.191/2013 is at Ex.P12 and the certified copy of her wound certificate is at Ex.P13, the certified copy of 4 photographs is at Ex.P14, the certified copy of the charge sheet filed by Bharatinagar PS in C.C.50192/2014 is at Ex.P15, the certified copy of FIR and first information statement lodged by accused against her in Bhartinagar PS on 24082013 is at Ex.P16, wherein she has given first information alleging that her mobile ending number 1242 was stolen. She further deposed that in that case the police have investigated the 11 C.C.No.10658/2014 matter and by seeing the CC TV footage at the spot they thought that there was no theft of mobile or purse, so they filed B report, the certified copy of which is marked at Ex.P17. She further deposed that in order to shirk her liability from this case the accused got filed false theft case against her. She further deposed that the mobile ending number 1242 is owned by the daughter of accused but the police said to her that it was used by the accused. The certified copy of the application given by the daughter of the accused to get SIM ending number 1242 is marked at Ex.P18.
15. During the cross examination she stated her name as Erica Madhusudhan and she has a son whose date of birth is 23031995. She stated that she do not know about the earlier marriage of Madhusudhan. She stated that she was not married Madhusudhan in the year 1995, she came to know Madhusudhan during her work place. In the year 1998 12 C.C.No.10658/2014 accused came to her house and created commotion. To the question why accused had created commotion in her house she remained silent. She further stated that she has not lodged any case in the year 1998. Chandini Khode is the daughter of Madhusudhan, this is informed by the police to her. She has not filed any complaint against Chandini Khode. Prior to marrying with Madhusudhan she had not married.
16. She denied the suggestion that in Ex.P6 there is no message which are shown to be threatening. She admitted that in Ex.P6 there is no message showing that there is a threat to the life of her son as well as there is no message of any obscene. In Ex.P9 she has mentioned that she received obscene and threatening messages from five different numbers. However, she expressed her ignorance about why said message were sent to her. She admitted that on 30112012 she has filed first information and she identified the certified copy of 13 C.C.No.10658/2014 the same which is marked at Ex.D1. She admitted that in Ex.D1 she has written that she suspects the accused, as per Ex.D1 the High Grounds Police have registered Cr.345/2012 and issued the FIR. To the suggestion that the High Grounds Police after investigation dropped the accused from that case, she states that they have not properly investigated. She denied the suggestion that she used to file false cases against the accused.
17. She further admitted that in her first information it is written that from mobile ending with number 1242 she has received messages from 21102011 to 01112011. She also admitted that on 16072013 she has lodged first information. To the question about the delay in lodging the first information she stated that due to fear she has lodged first information at belated stage. She further admitted that on 30112012 she has lodged first information stating that she has received 14 C.C.No.10658/2014 threatening message on 29112012. To the question that why she has not filed the complaint with regard to this case on 30112012 she remained silent. She denied the suggestion that the messages in Ex.P6 were got sent by herself to her mobile. In the year 1998 she came to know that the accused is the legally wedded wife of Madhusudhan thereafter she stayed away from him. She married Madhusudhan on 30092015, further she voluntaries that since 1998 she is in relation with him. Madhusudhan living separately by leaving the accused since 1994, but she has no document to show the same. She admitted to the suggestion that when she got child through Madhusudhan then there was no divorce between accused and Madhusudhan. She admitted that Ex.P11 to 15 are the documents pertains to the case pending on the file of XI ACMM.
15 C.C.No.10658/2014
18. She further admitted that with regard to Ex.P16 the complaint was lodged on 24082013 and the said incident took place at 6.30 p.m., to 7.00 p.m., at Thomas Cafe. She also filed counter complaint on 2582013 with regard to the incident taken place at Thomas Cafe at 6.30 to 7.00 p.m. So far Ex.P16 is concerned the police have filed B report and for her counter complaint the police have filed charge sheet. She has not filed any case against Chandini Khode after coming to know that the said mobile belongs to her. She expressed her ignorance to the suggestion that if the mobile having one SIM was lost then the other SIM for the same number can be obtain. To the suggestion that in the counter complaint given by her there is no clarity about the stolen mobile she stated that she has not seen said mobile.
19. PW2 being the then PSI of High Grounds PS has deposed that on 16072013 when she was on SHO duty at 9.55 p.m., 16 C.C.No.10658/2014 PW4 came to her and lodged first information as per Ex.P3 and on the basis of which she has registered the case and issued first information report as per Ex.P4 and handed over further investigation to PW1. For the delay in lodging the first information PW1 has gave a letter marked at Ex.P5.
20. During the cross examination she admitted that the incident taken place between 21102011 to 01112011 and after one year ten months the FIR was registered. PW4 mentioned in the first information that the accused might have cause harm for that she has not filed the first information. She has not enquired prior to register of this case about the other cases lodged in her police station. She denied the suggestion that on the basis of false first information given by PW4 she has registered a false case against the accused. She further denied that there is no relation between the accused and this case and she has not made any preliminary enquiry prior to 17 C.C.No.10658/2014 registering the case. She do not know that on 20102011 a case was registered by the accused against the PW4 in the same police station.
21. PW1 being the PI of High Grounds PS deposed that on 17072013 he received case file from PW2, who has issued notice to PW1 on 16072013 asking her to produce her mobile. Accordingly, on 13082013 PW1 came to police station and furnished her mobile which was seized by him in presence of PW5 and 6 and on verification it was NOKIA mobile model No.6275 wherein Reliance Company SIM NO.9342140005 was there and also a charger was produced which were seized under mahazar from 12.55 to 3.10 p.m. During conducting of said mahazar on verifying the message box of said mobile there were 14 messages came from the mobile No.9916541242 which were opened and mentioned in the mahazar. Thereafter they were seized and JK Seal were affixed to them and also affixed 18 C.C.No.10658/2014 the chits containing his signature and the signature of mahazar witnesses. Thereafter he mentioned the same in PF.No.59/2013 and reported the same to the court and send it for FSL.
22. He further deposed that he taken out screen shot of the said messages in 8 pages and on 21092013 the said screen shots were send to Truth Lab. On 26092013 in view of his transfer he handed over further investigation to PW2. The mahazar is marked at Ex.P1 and his signature is at Ex.P1(a). The cover from Truth Lab was opened and the mobile, charger, Reliance SIM Card were marked as per MO1 to 3 and the envelope marked at MO4, the eight pages screen shot is marked at Ex.P2.
23. During the cross examination he stated that during his investigation he has not investigated to whom the mobile number 9916541242 belongs to. He has also not investigated 19 C.C.No.10658/2014 whether the said mobile is standing in the name of accused. He denied that the said mobile is not belongs to the accused. To the question that on 25102011 there was a complaint lodged in his police station about theft of mobile number 9916541242 he stated that without seeing the records he cannot say. He stated that he has not enquired the antecedent of PW4, he has also not enquired why the said messages came to her mobile, he denied the suggestion that in Ex.P2 there is no filthy words and threat messages. He denied the suggestion that he has not seized anything and MO1 to 4 were created for the purpose of this case.
24. PW3 being the PI of High Grounds PS who stated that on 30092013 he received the case file for further investigation from PW1 and on 02122013 received the report from Truth Lab and the documents sent to it the said report is marked as 20 C.C.No.10658/2014 per Ex.P6. After completion of the investigation he has filed the charge sheet against the accused.
25. During the cross examination he denied the suggestion that as per the say of PW4 in order to harass the accused without verifying any documents he has filed false final report against the accused.
26. PW5 and 6 being the witnesses to the mahazar have deposed that on 13082013 the police have taken the photographs of the obscene and threatening messages from the mobile phone of PW4 and conducted the mahazar as per Ex.P1 and their signatures are at Ex.P1(c) and Ex.P1(d) respectively.
27. During the cross examination they stated that the messages sent were obscene and threatening messages sent from ending mobile number 242. They do not know who has sent these messages, police have seized the mobile of PW4. 21 C.C.No.10658/2014
28. PW7 being the expert deposed that she was working as Deputy Director in Truth Labs and having Post Graduation in the subject of Information and Technology. The High Grounds police have sent one mobile, one SIM Card and 8 sheets of screen shot and requested her to whether the messages appearing in the screen shot were sent from the said mobile or not. Accordingly, she marked the mobile as item No.1, the SIM card as item No.2 and 8 screen shot sheets marked as T1 to T8, on verifying the said mobile there was a folder by name imp wherein the messages were stored, they have taken the said messages from a CD and after taking print out she has sent her report which is marked at Ex.P6 and along with her report she has sent annexure which consists of 8 pages which is marked at Ex.P19. According to Ex.P19 the messages were came from the mobile number 9916541242. The Ex.P2 which 22 C.C.No.10658/2014 is the screen shot sheet sent by the IO are tallying with the Ex.P19.
29. During the cross examination she stated that the Truth Lab organization is not recognized by the Government and she has not been appointed as a Electronics Examiner from the Government. She cannot say the name of the IO who has sent the requisition. In the requisition the police have sought to ascertain the said SMS were sent from which mobile to which mobile, but she has stated in her report that it cannot be identified from which number the SMS were came to which number. She also cannot say the mobile through which SMS sent was belongs to whom. Since, IO has mentioned in her requisition that the said SMS as obscene she also stated the same in her report, but it is not her opinion. She further stated that in Ex.P19 there were mention of 14 messages which were sent in the year 2011. In the annexure page No.6 it is 23 C.C.No.10658/2014 mentioned that the SMS sent from mobile number 9692114289 in the year 2013 so also in the annexure page No.7 it is mentioned that the SMS sent from mobile number 9980935040. She has not given any report stating that the mobile number 9916541242 belongs to whom and the said messages are obscene. She denied the suggesstion that she was deposing falsely.
30. In the written arguments filed by the learned Sr.APP it is contended that all the witnesses have clearly supported the case. During the cross examination to the IO i.e., PW1 some suggestions were made which runs as "ದನನಕ 25102011 ರನದದ ಮಮಲ ಹಮಳದ ಮಬಬಲ ಸನಖಖ 9916541242 ಕಳದದಹಹಮಗದದ ಬಗಗ ನಮಮ ಠಣಯಲ ದಹರದ ದಖಲಗರದತತದ ಎನದರ ಸಕಯದ ಕಡತವನದ ನ ಪರಶಮಲಸದ ಹಮಳಲಗದವದಲಲ". From this suggestion the defence taken by the accused that the mobile number 9916541242 was lost and in this connection she has lodged the complaint before 24 C.C.No.10658/2014 Bharatinagar Police Station. But as per Ex.P17 the accused has lodged police complaint with regard to theft of said mobile and also to the assault done by the PW4 but the B report has been filed and as per Ex.P18 the said mobile stood in the name of daughter of the accused. So, he relied upon the decision reported in 1984 Cri.L.J. 1423 wherein it is held that mere suggestions however ingenious have no evidentiary value unless accepted by witness or proved by other evidence.
31. He also contended in the written arguments that PW4 being the first informant deposes during cross examination that "ನಪ 6 ರಲ ಯವದಮ ಅಶಲಮಕರವದ ಯವದಮ ಮಸಮಜಗಳದ ಇಲಲ ಎನದರ ಸರ". This evidence not amount to be admission because this case is purely banking on the documentary evidence. All the messages clearly shows that they are obscene and threatening messages so the evidence of PW1 to 7 are corroborative one and also supported by the documentary evidence. He also 25 C.C.No.10658/2014 contended that the evidence of police officers have to be believed when the credibility of such witness has to be tested on the touch stone of truthfulness and trustworthiness. In this regard he relied upon the decision of Hon'ble Apex Court reported in AIR 2007 SC 3106. So, on the basis of all the oral as well as documentary evidence he submits that the prosecution has proved its case beyond reasonable doubt and prayed to convict the accused.
32. Per contra, the learned advocate for the accused argued that accused is the first wife of Madhusudhan and the PW4 is second wife. The alleged incident as per the case is taken place in between 21102011 to 01112011, but the first information statement filed by the PW4 on 14072013 so there is a inordinate delay in lodging the FIR, to over come the delay the prosecution has created Ex.P5. In this case as per the prosecution the obscene and threatening messages were sent 26 C.C.No.10658/2014 by the mobile number 9916541242 but the accused is not its owner and nor the said mobile has been seized by the IO.
33. She further argued that so far as delay in lodging the FIR is concerned she relied upon the decision of the Hon'ble Apex Court in W.P. (Criminal) No.68/2008 Lalita Kumari v/s. Government of U.P. and others wherein certain directions given by the Hon'ble Apex Court in that the preliminary enquiry should be made time bound and in any case it should not exceed 7 days.
34. She also relied upon the decision of Hon'ble Apex Court in Sharat Babu Digumarti v/s. Government of NCT of Delhi in Cri.A.No.1222/2016 wherein it is held in paragraph No.32 as under:
32. ........................ Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of 27 C.C.No.10658/2014 the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with the obscenity in electronic form it covers the offence u/s 292 IPC.
35. So, on the basis of the above decision she contended that as per the decision of Shreya Singhal case Section 66A of IT Act has been struck down and in this case the said Section 66A has covered Section 504 and 506 of IPC. So, when this court has deleted the charges framed against the accused u/s 66A of IT Act in view of the above decision the IT Act being the special law which prevails over the general law i.e., IPC, so the accused ought to have dropped for the offences punishable u/s 504 and 506 IPC also.
28 C.C.No.10658/2014
36. The another tenor of argument of the advocate for accused is that no certificate u/s 65B of Evidence Act produced by the prosecution, so the entire evidence and the evidence of expert cannot be believed. In this regard she relied upon the decision of the Hon'ble Apex Court Anvar P.V. s/o P.K.Basheer and others in Civil Appeal No.4226/2012 wherein it is held that;
All the safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence. 29 C.C.No.10658/2014
37. She further contended that absolutely no material placed on record to accept the case of the prosecution, so prayed to acquit the accused.
38. Having heard the arguments and on perusal of the written argument and other material placed on record admittedly as per the case of the prosecution the alleged incident took place in between 21102011 to 01112011 and the first information lodged by PW4 as per Ex.P3 is on 14072013. The said delay is inordinate which has not properly explained by the prosecution. Even though the prosecution in order to overcome the delay has tried to bank upon Ex.P5 which is the another application filed by the PW4 to the Inspector, High Grounds PS, where the Ex.P3 has been filed. Only on the basis of Ex.P5 the first information was registered by the PSI of High Grounds as per Ex.P4. So the contention of the counsel for the accused 30 C.C.No.10658/2014 is having weight that there is inordinate delay in lodging the first information after the alleged incident as per Ex.P3.
39. So, far as inordinate delay in lodging the FIR the counsel for the accused has relied upon the Lalita Kumari case supra. For this the learned Sr.APP contended that the said case was delivered by Hon'ble Supreme Court on 12112013 but this case was registered prior to it, so the said decision was not delivered earlier. Though his contention is acceptable but in the said decision it is pertinent to mention paragraph No.89 which reads thus:
89) In Thulia Kali v/s. State of Tamil Nadu (1972) 3 SCC 393 this court held as under:
12........................ First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating of evidence adducing the trial the importance of the above report can hardly be 31 C.C.No.10658/2014 overestimated from the stand point of the accused.
The object of insisting upon from to lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.
40. The above ratio is aptly applicable to the present case because though the alleged incident taken place in the year 2011 but the first information has been filed by the PW4 on 32 C.C.No.10658/2014 14072013 as per Ex.P3. Even the present FIR has been registered as per Ex.P4 only on 16072013 on the basis of Ex.P5 the another application lodged by the PW4. Therefore, the delay is enormous which has not been properly explained by the prosecution. Under such circumstances, as per the above ratio it cannot be ruled out that the present FIR has been registered which is an afterthought of the PW4.
41. In this case, it is very strange that the CW1 who has set the criminal law into motion by filing the first information statement has not at all came forward to adduce her evidence despite taking coercive steps by this court. Therefore, it seems that the police officers have been examined by the prosecution as PW1 to 3 and at last the CW1 was examined in the year 2019 and thereafter she used to file recall application and got examined herself two times by filing different documents pertains to various other cases. Earlier to that the order sheet 33 C.C.No.10658/2014 shows that in view of struck down of Section 66A of IT Act the learned I ACMM Court has transferred this case to this court. Thereafter, the PW4 appears through her counsel and filed memo stating that she has no faith in this court, so this court has submitted the entire records to the Hon'ble CMM, Bengaluru the said petition was registered as Crl.Misc.4039/2019 and after hearing both side the said petition was dismissed as not maintainable by the Hon'ble CMM.
42. Thereafter, as per the memo filed by the defacto complainant it appears that she has filed transfer petition before the Hon'ble City Civil and Sessions Judge, Bengaluru in Crl.Misc.10341/2019. On perusal of the CIS the said miscellaneous case was also came to be dismissed for non prosecution. The order sheet also discloses the fact that the PW4 being the complainant used to change her counsel 34 C.C.No.10658/2014 frequently only in order to drag the matter. At last she has also filed the application u/s 302 of CrPC seeking permission to conduct prosecution from her private counsel which was seriously opposed by the state as well as the accused and the said application was came to be rejected. After that also the PW4 got examined by filing necessary application to the dropped witnesses i.e., CW2, 3 and 4 as PW5 to 7.
43. PW5 and 6 are the witnesses to the mahazar and they have categorically stated about the conducting of mahazar as per Ex.P1 but during cross examination admitted that they are the friends of PW4. They have categorically admitted that they do not know who have sent the said messages to the phone of PW4. The PW7 who has given the report as per Ex.P6 stated as per the case of the prosecution. During the cross examination she clearly stated that she cannot say the mobile which has sent the SMS belongs to whom. She also admitted that since 35 C.C.No.10658/2014 the IO mentioned in his requisition that SMS are obscene so she has also stated the same and it is not her opinion.
44. In this case, the IO has taken the screen shot of the mobile of PW4 and send it to the Truth Labs for verification. Admittedly, the certificate as required under section 65B of Evidence Act is not produced in this case. Therefore, as per the decision relied upon by the advocate for the accused i.e., Anvar case supra, the electronic records being more susceptible to tampering, alteration, transposition excision etc., without such safeguards the whole trial based on proof of electronic records can lead to travesty of justice. As per Section 65B of Evidence Act the certificate is mandatory but here in this case the IO has not affixed the certificate about the screen shot taken from which mobile. Therefore, admittedly, looking to the material placed by both the parties it appears that there is family dispute between the accused and the PW4 and there are 36 C.C.No.10658/2014 several litigations pending between them. Therefore the contention of the accused cannot be ruled out that the PW4 along with the police officials have filed this false case.
45. As per the case of the prosecution the mobile ending number with 1242 belongs to the daughter of the accused by name Chandini Khodey but even then the prosecution has not initiated any action against her. On the other hand the entire case is alleged against the accused on the basis of the said SMS alleged to have received from the said mobile ending with number 1242. When the first informant as well as the IO came to know who is the owner of the said mobile ending with number 1242, I failed to understand why they have not initiated any action against her instead of the accused. Therefore, this creates a serious doubt in the case of the prosecution.
37 C.C.No.10658/2014
46. Looking to the entire material placed on record, one thing is clear that the accused is the first wife of one Madhusudhan and the PW4 is the second wife of Madhusudhan and the said Madhusudhan has divorced his first wife, this shows that there is long standing enmity between both the parties, that may be the reason for filing this case and dragging since 2014 on one or other pretext by the PW4.
47. On perusal of the records it appears that the accused has approached the Hon'ble High Court to quash the proceedings of this case in Crl.Pet.No.6558/2014 but the Hon'ble High Court has quashed only Section 66A of IT Act in view of struck down the said provision by the Hon'ble Supreme Court. However, the counsel for the accused relied upon the Sharath Babu's case supra, wherein it is categorically held that when the accused was discharged for the offence punishable u/s Section 67 of IT Act he ought to have been discharged for 38 C.C.No.10658/2014 Section 292 of IPC also because the special provision having overriding effect on general Act.
48. So far as this contention is concerned the accused ought to have challenged the order passed by the Hon'ble High Court in said criminal petition No.6558/2014 but she has kept quite, now she cannot contend this contention because it has attained finality after the disposal of the said criminal petition by the Hon'ble High Court.
49. Apart from that looking to the entire material placed on record first of all there is inordinate delay which has not been properly explained by the prosecution. The another main point in this case is the mobile through which the alleged SMS were sent to the mobile of PW4 was not recovered from the accused. Nobody has seen sending of messages through the said mobile by the accused to PW4 as alleged by the prosecution. Moreover, 39 C.C.No.10658/2014 the accused is not the owner of the said mobile through which the alleged SMS were came to the mobile of PW4.
50. Looking to the attitude of the PW4 throughout the case she used to file various documents whether they are relevant to this case or not and also took years together time to lead her evidence. Therefore, these are all things creates suspicion over the case of the prosecution. In view of non furnishing the certificate as mandated u/s 65B of Evidence Act the material placed by the prosecution are not admissible. So, on perusal of the entire material placed on record the prosecution has miserably failed to prove its case beyond reasonable doubt. As per the settled principle of law the accused entitled for the benefit of doubt. Hence, by extending the benefit of doubt to the accused, I answer the above points in the negative.
51. Point No.3: For the foregoing discussion and my findings to the above point, I proceed to pass the following: 40 C.C.No.10658/2014
ORDER Accused is hereby acquitted of the offences punishable U/s. 504 and 506 of IPC by acting under Section 248 (1) of Cr.P.C.
Her bail bond stands cancelled. However, in view of Section 437A of Cr.P.C the same shall be in force for 6 (six) months.
The MO1 to 3 shall be released to PW4 and MO4 being worthless shall be destroyed after the expiry of appeal period.
(Dictated to the stenographer directly on the computer, typed by her verified and corrected by me, then the judgment pronounced by me in the open court, on this 1 st day of April 2022.) (Patil Veeranagouda S.) VIII Addl. CMM, BENGALURU ANNEXURE Witnesses examined for the prosecution :
PW1 : K.M.Ramesh s/o Madegowda 41 C.C.No.10658/2014 PW2 : Shobha G w/o Gangadhara Swamy PW3 : E.B.Sridhar s/o Bommaiah PW4 : Erika w/o K.N.Madhusudhan PW5 : T.A. Richardson s/o S.E.Antony PW6 : Silviya w/o T.A. Richardson PW7 : S. Neeru w/o V. Sridhar Documents marked on behalf of the prosecution:
Ex.P1 : Seizure Mahazar
Ex.P1(a) : Signature of PW1
Ex.P1(b) : Signature of PW4
Ex.P2 : Screen shots prints of messages
Ex.P2(a) : Signature of PW1
Ex.P2(b) : Signature of PW4
Ex.P3 : First Information Statement
Ex.P3(a) : Signature of PW2
Ex.P3(b) : Signature of PW4
Ex.P4 : First Information Report
Ex.P4(a) : Signature of PW2
Ex.P5 : Letter of PW4
Ex.P5(a) : Signature of PW2
Ex.P5(b) : Signature of PW4
Ex.P6 : Report of PW7
Ex.P7 : Copy of reply of PW4
Ex.P8 : Police notice
Ex.P9 : Letter of PW4
Ex.P9(a) : Signature of PW4
Ex.P10 : C C of Statement of Nagalingaiah
Ex.P11 : C C of FIS of PW4 to Bharati Nagara PS
Ex.P12 : C C of FIR of Bharati Nagara PS Cr.191/2013
Ex.P13 : C C of Wound Certificate of PW4
Ex.P14 : C C of 4 Photographs
42 C.C.No.10658/2014
Ex.P15 : C C of Charge Sheet in C C No.50192/2014
Ex.P16 : C C of FIR of Bharati Nagara PS Cr.187/2013
Ex.P17 : C C of B Report in Cr.187/2013
Ex.P18 : C C of Customer form of Chandini Khode
Ex.P19 : Annexure to Ex.P6
Witnesses examined for the defence:
NIL
Documents marked on behalf of the defence: Ex.D1 : Copy of first information statement Material Object:
MO1 : Mobile of PW4
MO2 : Sim Card of PW4
MO3 : Charger of PW4
MO4 : Cover
VIII Addl. C. M. M.
BENGALURU.
43 C.C.No.10658/2014
Judgment pronounced in the open court vide separately ORDER Accused is hereby acquitted of the offences punishable U/s. 504 and 506 of IPC by acting under Section 248 (1) of Cr.P.C.
Her bail bond stands cancelled. However, in view of Section 437A of Cr.P.C the same shall be in force for 6 (six) months.
The MO1 to 3 shall be released to PW4 and MO4 being worthless shall be destroyed after the expiry of appeal period.
VIII Addl. C. M. M. Bengaluru