Bangalore District Court
State By Sampigehalli Police Station vs Faiz Ahamed @ Faiz S/O Naheemulla on 27 September, 2016
IN THE COURT OF THE I ADDL.C.M.M, Bengaluru
Present: Smt. Hema Pastapur
B.A.,LL.B.,
I Addl C. M. M, Bengaluru
C.C.No.5392/2012
Dated this the 27th day of September 2016
Judgment under section 355 of the Code of Criminal Procedure
Complainant:- State by Sampigehalli Police Station, Bengaluru.
(By Learned Special Public Prosecutor)
VS
Accused:- Faiz Ahamed @ Faiz s/o Naheemulla, age: 21 years,
r/o No.441, 1st cross, R. K. Hegde Nagar, Bengaluru.
(By Shri Yunus Ali Khan, Advocate)
Offences complained : U/secs 292(A), 293, 354, 384 and 507 of the
Indian Penal Code r/w sec 67(B) of the
Information Technology Act and under sec
4 of Indecent Representation of Women
(Prohibition) Act, 1986.
Opinion of the Court : Accused is not found guilty
Date of Judgment : 27.09.2016.
2 C.C.No.5392/2012
JUDGMENT
That, the Police Inspector of Sampigehalli Police Station, Bengaluru, has filed the Final report against the accused for the offence punishable under sections 292(A), 293, 354, 384 and 507 of the Indian Penal Code r/w section 67(B) of the Information Technology Act and under section 4 of Indecent Representation of Women (Prohibition) Act, 1986.
1. That, the gist of the prosecution case is that the accused and CW2 were studying in same college at R. T. Nagar, Bengaluru and they were classmates and good friends. That, on 05-03-2010 the accused had invited CW2 to his house for some function and on that invitation CW2 had been to the house of accused which is situated at Hegde Nagar, 1st cross, house No.441 and on that day the accused had made CW2 to drink some cool drinks and after consuming the said cool drinks, CW2 became unconscious and at that time the accused to outrage the modesty of CW2 had took her indecent photos from different angles and thereafter, started to blackmail her and also extracted thousands of rupees from her and when CW2 failed to heed his words, then he criminally intimidated her and her 3 C.C.No.5392/2012 family members with dare consequences. That, on 05-06-2011 the accused sent his father to the house of CW1with a request to his marriage proposal with CW2, but, CW2 had refused for the same and on 06-09-2011 the accused threatened CW1 with dare consequences and also sent the naked photos of CW2 to his E-mail ID - [email protected].
2. That, on complaint being lodged the Sampigehalli Police, Bengaluru, have registered the case against the accused. That, the Investigating Officer after completion of investigation filed the Final report against the accused for aforesaid offences.
3. That, this court after taking the cognizance of the aforesaid offences issued the summons to the accused and in consonance with the said summons the accused has appeared before this court through his Learned counsel and he was enlarged on bail. That, the provisions of section 207 of Code of Criminal Procedure, have complied here with. That, the charge of the accused has framed and read over to him in language known to him and he has not pleaded guilty and claimed to be tried. That, after completion of prosecution side evidence, the statement of the accused as contemplated under 4 C.C.No.5392/2012 section 313 of Code of Criminal Procedure, has recorded and read over to him and he denied all incriminating evidence appearing against him and not chosen to lead either oral or documentary evidence on his behalf.
4. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:
1. Whether the prosecution has proved beyond all reasonable doubt that, the accused on 05-03-2010 to outrage the modesty of CW2 took her indecent photos from different angles and thereafter, by blackmailing her had extracted the thousands of rupees from her and on 06.09.2011 had sent the naked photos of CW2 to CW1 and thereby has committed the offence punishable under sections 292(2)(a), 354 and 384 of the Indian Penal Code and under section 4 of Indecent Representation of Women (Prohibition) Act, 1986?
2. Whether the prosecution has further proved beyond all reasonable doubt that, on alleged date of incident CW2 was minor and accused by taking the alleged indecent photos has committed the offence 5 C.C.No.5392/2012 punishable under sections 293 of the Indian Penal Code r/w section 67(B) of the Information Technology Act?
3. Whether the prosecution has further proved beyond all reasonable doubt that, the accused has threatened CWs1 and 2 with dare consequences and thereby has committed the offence punishable under section 507 of the Indian Penal Code?
4. What order?
5. That, the prosecution to prove its above case has got examined PWs1 to 7 and got marked the documents at EXsP1 to P8 and also got marked MOs1 to 6 and closed its side.
6. That, My answer to the aforesaid points are as under:-
Point No.1:- In the NEGATIVE Point No.2:- In the NEGATIVE Point No.3:- In the NEGATIVE Point No.4:- As per the final order for the following:-
REASONS
7. Points No.1 to 3:- That, as these points are inter-linked, I have taken them for joint discussion to avoid repetition of facts. 6 C.C.No.5392/2012
It is specific allegation of the prosecution that, accused and CW2 were studying in same college at R. T. Nagar, Bengaluru and they were classmates and good friends. That, on 10-03-2010 the accused had invited CW2 to his house for some function and on that invitation CW2 had been to the house of accused which is situated at Hegde Nagar, 1st cross, house No.441 and on that day the accused had made CW2 to drink some cool drinks and after consuming the said cool drinks, CW2 became unconscious and at that time the accused to outrage the modesty of CW2 had took her indecent photos from different angles and thereafter, started to blackmail her and also extracted thousands of rupees from her and when CW2 failed to heed his words, then he criminally intimidated her and her family members, with dare consequences. That, on 05-06-2011 the accused had sent his father to the house of CW1 with a request to his marriage proposal with CW2, but, CW2 had refused for the same and on 06-09-2011 the accused threatened CW1 with dare consequences and also sent the naked photos of CW2 to his E-mail ID - [email protected].
7 C.C.No.5392/2012
8. It is to be noted here that, before analyzing the evidence of witnesses it is very much necessary to have a glance over the essential requisites of sections 292(2)(a), 293, 354, 383 and 507 of Indian Penal Code, 67 (B) of the of the Information Technology Act and 4 of Indecent Representation of Women (Prohibition) Act, 1986.
(a) It is to be noted here that, to bring home the charge under sub-section (2) clause (a) of section 292 of the Indian Penal Code, the prosecution has to establish that there is a book, pamphlet, paper, writing, drawing, printing, representation, figure or any other object which is lavicious or which appear to the prudent interest or which tends deprive or corrupt persons, taking the effect of the books as a whole and lead the evidence to prove that such obscene material or object was sold, let on hire, distributed, publicly exhibited in any manner or put into circulation or made, produced or possessed by the accused or imported or exported etc., advertised or made known or offered to do an act.
(b) It is to be noted here that, to bring home the charge under section 293 of Indian Penal Code, the prosecution has to prove that the obscene object as referred in section 292 of the Indian Penal 8 C.C.No.5392/2012 Code, was sold, circulated etc., that such acts were done of the accused and that the person to whom the said object was sold, distributed or circulated etc., was below 20 years.
(c) It is to be noted here that, to bring home the charge under section 507 of the Indian Penal Code, the prosecution has to prove that the accused has committed the criminal intimidation by anonymous communication.
(d) It is to be noted here that, section 383 of the Indian Penal Code, deals with the phrase Extortion and which contemplates that whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person and any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits extortion.
It is pertinent to note here that, from perusal said provision it clearly appears that, to bring home the charge under section 384 of the Indian Penal Code, the prosecution has to establish that the accused had intentionally induced the victim and put him in fear of 9 C.C.No.5392/2012 any injury to deliver any property or valuable security. It is to be noted here that, injury is not only a harm to any person in body or property but also in mind or reputation.
(e) It is pertinent to note here that, the offence of outraging the modesty under section 354 of the Indian Penal Code, is said to be committed when a person assaults or causes criminal force to a women intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It is to be noted here that, in the absence of any clear and unimpeachable evidence, the offence under section 354 of the Indian Penal Code, does not attract.
(f) It is pertinent to note here that, section 67(B) of Information Technology contemplates as under- Whoever- (a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or 10 C.C.No.5392/2012
(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or
(d) facilitates abusing children online; or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
It is pertinent to note here that, aforesaid section deals with the punishment for publishing, or transmitting of material depicting children in sexually explicit act, etc., in electronic form. It is pertinent to note here that, to bring the home the charge under said section the prosecution has to establish that the accused has published, 11 C.C.No.5392/2012 transmitted, created or facilitated any material in any electronic form which depicts children engaged in sexually explicit act or conduct. It is pertinent to note here that, the word children used in aforesaid section means a person who has not completed the age of 18 years.
(g) It is pertinent to note here that, section 2 (c) of Indecent Representation of Women (Prohibition) Act 1986, deals with the definition of indecent representation of women and which means that the depiction in any, in manner of the figure of a woman, her form or body or any part thereof in such a way as to have effect of being indecent, or derogatory or denigrating women, or is likely to deprive, corrupt or injure the public morality or moral.
(h) It is to be noted here that, section 4 of Indecent Representation of Women (Prohibition) Act, 1986 deals with that, no person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photographs, representation or figure which contains the indecent representation of women in any form.
12 C.C.No.5392/2012
It is pertinent to note here that, from plain reading of aforesaid provisions it clearly appears that to bring home the charge of section 4 of the aforesaid Act, the prosecution has to establish that the accused has depicted the figure of a woman and produced, sold, distributed or circulated any book, pamphlet, paper, slide, film, writing, drawing, painting, photographs, representation or figure which contains the indecent representation of women in any form and the said the depiction has effected on public morals and morality.
9. It is to be noted here that, in the instant case the Learned counsel for the accused has placed his reliance on following decision.
Anwar P.V. Vs. P.K. Basheer and others, reported in AIR 2015 Supreme Court 180, wherein it has held that- Proof of electronic record is a special provision introduced under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under section 65-B of the Evidence Act. That is a 13 C.C.No.5392/2012 complete code in itself. Being a special law, the general law on secondary evidence under sections 63 and 65 had to yield. An electronic record by way of secondary evidence therefore shall not be admitted in evidence unless the requirements under section 65-B are satisfied. Thus, in the case of CD, VCD, chip etc., the same shall be accompanied by the certificate in terms of section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record is inadmissible.
10. It is pertinent to note here that, let us analyze the evidence of witnesses on background of aforesaid provisions.
It is pertinent to note here that, in the instant case the prosecution to prove its above case has got examined CW1- Shri Abdul Rehman s/o Abdul Jaleel- the Complainant as PW1. It is pertinent to note here that, PW1 in his examination-in-chief has deposed that CW2 on 05-03-2010 with the permission of her mother went to the house of accused to attend his birth day party and CW2 informed him that on alleged date the accused had made her to drink some cool drinks and when she became unconscious he took her 14 C.C.No.5392/2012 naked photos. That, PW1 has further deposed that after two to three months of aforesaid incident the accused has started to harass CW2 for marrying him and when she refused for the same, he started to blackmail her for sending her naked photos to her relatives. It is to be noted here that, PW1 has further deposed that on 05-06-2011 at about 11.00 a.m. the father of the accused Shri Nahim and his three friends came to his house with a marriage proposal of accused and CW2 and for which he refused for the same and on 06-09-2011 the accused threatened him by making a phone call and sent the naked photos of CW2 to his E-mail ID and when he asked his daughter about the said photos then she informed him that accused might have taken the said photos when she was unconscious.
11. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW2-Kumari Fathima Sufiya d/o Abdul Rehman as PW2. It is pertinent to note here that, PW2 in her examination-in-chief has deposed that she and accused were classmates and on 05-03-2010 the accused invited her to his house for some function and on that day she had been to the house of the accused and on that day the accused made her to consume some 15 C.C.No.5392/2012 cool drinks and after consuming the same she became unconscious and at that time he took her some naked photos and thereafter, he started to blackmail her and also extracted thousands of rupees from her. It is to be noted here that, PW2 in her examination-in-chief has further deposed that on 05-06-2011 the accused sent his father to her house with a marriage proposal and her father had refused for the same and for taking the revenge the accused on 06-09-2011 had sent her naked photos to the E-mail of her father.
12. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW3-Shri Mohammed Nazeer Ahamed s/o Mohammed Mohiruddin- the brother-in-law of PW2 as PW3. It is pertinent to note here that, PW3 in his examination-in- chief has deposed that at about four years back the accused called him and stated that PW1 is not giving consent to him to marry with PW2 and for which he will take serious action against him. It is to be noted here that, PW3 has further deposed that on that day he recorded the said conservation in his mobile and transferred the same in one compact disc and furnished the same to the police. 16 C.C.No.5392/2012
13. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW4-Shri C. Lakshmaiah s/o Late Siddappa as PW4 and CW5-Shri Ramesh s/o Hanumanthappa- as PW7. It is pertinent to note here that, PWs4 and 7 are the Seizure mahazar witnesses and have turned hostile and not supported the case of the prosecution.
14. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW8-Shri K. T. Nagaraju s/o Thimmappa- the then Investigating Officer as PW6. It is pertinent to note here that, PW6 has deposed about the investigation conducted by him in present case.
15. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW6-Shri K. Narayanaswamy s/o Late Krishnappa- the then Head Constable of Sampigehalli Police Station as PW5. It is pertinent to note here that, PW5 has deposed about producing the accused before PW6.
It is pertinent to note here that, the accused has cross-examined the PWs1 to 3, 5 and 7 and denied all allegations made against him. 17 C.C.No.5392/2012
16. It is pertinent to note here that, in the instant case the allegation of the prosecution is that the accused in order to outrage the modesty of PW2 has taken her naked photos. It is pertinent to note here that, PWs1 and 2 in their evidence have deposed that the accused might have taken the alleged photos. It is pertinent to note here that, from said evidence of PWs1 and 2 it clearly appears that they are not sure who has taken the alleged photos. It is pertinent to note here that, the Court cannot reply upon assumptions. It is pertinent to note here that, it is the bounden duty of the prosecution to prove its case beyond all reasonable doubt. It is pertinent to note here that, from the said evidence of PWs1 and 2 is quite sufficient to hold that the accused has not committed the offences punishable under sections 292 and 354 of the Indian Penal Code and under section 4 of the Indecent Representation of Women (Representation) Act.
It is to be noted here that, in the instant case PW1 has deposed that on alleged date of incident PW2 was a minor. It is to be noted here that, as discussed above to bring home the charge under section 293 of the Indian Penal Code and under section 67(B) of the 18 C.C.No.5392/2012 Information Technology Act, it is the bounden duty of the prosecution to prove that the accused has published, transmitted, created or facilitated any material in any electronic form which depicts children engaged in sexually explicit act or conduct and on alleged date of incident the victim was minor. It is to be noted here that, in the instant case the prosecution has not produced any document to show that on the alleged date of incident PW2 was minor and in view of the same section 293 of the Indian Penal Code and under section 67(B) of the Information Technology Act, go out from the purview.
It is to be noted here that, as stated above, the prosecution has also made an allegation against the accused that he had extracted money from PW2 and threatened PWs1 and 2 with the dare consequences. It is pertinent to note here that, the prosecution has not placed any material before the Court to substantiate its aforesaid contentions. It is pertinent to note here that, mere allegations are not sufficient to hold that the accused has committed the alleged offences. It is the duty of the prosecution to prove its case beyond all reasonable doubt. It is to be noted here that, in the instant case the 19 C.C.No.5392/2012 prosecution has failed to prove the essential requisites of sections 383 and 507 of the Indian Penal Code.
17. It is significant to note here that, in the instant case, the prosecution has got marked the Compact discs-MOs1 and 2 and EXP2-E-mail copy, EXsP2(a) and (b)-photos of PW2 (E-mail copies), EXP2(i)-colour xerox copy of naked photos of accused and PW2, EXP3(a) to (d) and EXP4(a) and (b)-photos of PW2 (print out).
It is significant to note here that, section 65-B of the Indian Evidence Act (for brevity the Act) contemplates that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred as the computer output) shall be deemed to be also a document and shall be admissible in evidence if the conditions mentioned in sub-section (2) and (4) are satisfied. It is pertinent to note here that, sub-section (4) of the section 65-B of the Indian Evidence Act, strictly emphasizes that in the case of CD, VCD, chip, printouts etc., the same shall be accompanied by the certificate at the time of taking the document, without which, the secondary evidence pertaining to that electronic record is inadmissible. It is 20 C.C.No.5392/2012 pertinent to note here that, in the instant case the prosecution has not filed any certificate as required under section 65-B of the Indian Evidence Act and in view of the same the said documents cannot be looked into. It is to be noted here that, the dictum rendered in aforesaid decision is aptly applicable to the present case. It is pertinent to note here that, from the evidence of aforesaid witnesses it clearly appears that the accused has been falsely implicated in present case. It is to be noted here that, in view of My above findings and without much discussion I hold that, the prosecution has failed to prove the guilt of the accused for the offence punishable under sections 292(A), 293, 354, 384 and 507 of the Indian Penal Code r/w section 67(B) of the Information Technology Act and under section 4 of Indecent Representation of Women (Prohibition) Act, 1986. In view of the same, points no.1 to 3 are answered in the NEGATIVE.
18. Point No.4:- That, as discussed on points no.1 to 3, I proceed to pass the following:-
21 C.C.No.5392/2012
ORDER That, acting under section 248(1) of the Code of Criminal Procedure, the accused is acquitted for the offence punishable under sections 292(A), 293, 354, 384 and 507 of the Indian Penal Code r/w section 67(B) of the Information Technology Act and under section 4 of Indecent Representation of Women (Prohibition) Act, 1986.
That, the bail and surety bonds of the accused are stands cancelled.
That, the accused shall comply with the provisions of section 437(A) of the Code of Criminal Procedure.
That, order passed in respect of Dell company Laptop- P.F.No.70/2011 is made as absolute.
That, MO's no.1 to 4 shall be destroyed after appeal period and MO's no.5 and 6 shall be confiscated to the State. (Dictated to the stenographer, transcript thereof, computerized revised and then corrected by me and then pronounced in open Court on this the day of 27th day of September 2016) Date:27.09.2016 (Hema Pastapur) Place:Bengaluru I Addl. C. M. M, Bengaluru.
22 C.C.No.5392/2012
Annexure List of witnesses examined on behalf of the prosecution PW1: Shri Abdul Rehman s/o Abdul Jaleel;
PW2: Kumari Fathima d/o Abdul Rehman;
PW3: Shri Mohammed Nazeer Ahamed
s/o Mohammed Mohiruddin;
PW4: Shri Lakshmaiah s/o Late Siddappa;
PW5: Shri K.Narayanaswamy s/o Late Krishnappa;
PW6: Shri K.T.Nagaraju s/o Thimmappa and
PW7: Shri Ramesh s/o Hanumanthappa.
List of documents marked on behalf of the prosecution EXP1: Complaint;
EXP1(a): Signature of PW1;
EXP1(b): Signature of PW6;
EXP2: E-mail copy(5 pages);
EXP2(a) to (h): Photos of PW2(E-mail copies);
EXP2(i) Photo of PW2(E-mail colour xerox copy);
EXP3: Colour xerox copy of naked photo of
accused and PW2;
EXP3(a): Photos of PW2(printout)
EXP3(b) to (d): Other photos of PW2(printouts);
EXP4: Photos of PW2 (printout colour photos);
EXP4(a) and (b): Naked photos of PW2
(printout colour photos)
EXP5: Seizure mahazar;
23 C.C.No.5392/2012
EXP5(a): Signature of PW4;
EXP5(b): Signature of PW6;
EXP6: Statement of PW4;
EXP7: FIR;
EXP7(a): Signature of PW6 and
EXP8 Copy of invoice.
List of witnesses examined on behalf of the accused Nil List of documents marked on behalf of the accused Nil List of material objects marked on behalf of the prosecution MOs1 and 2 : Compact discs;
MOs3 and 4: MTS cards and
MOs5 and 6: 2 mobiles.
Date:27.09.2016 (Hema Pastapur)
Place:Bengaluru I Addl C. M. M, Bengaluru.
24 C.C.No.5392/2012
25 C.C.No.5392/2012
27-9-2016
State by Sr.APP:
Accused C/B
For Judgment
(Judgment pronounced in the Open Court, vide separate order) ORDER That, acting under section 248(1) of the Code of Criminal Procedure, the accused is acquitted for the offence punishable under sections 292(A), 293, 354, 384 and 507 of the Indian Penal Code r/w section 67(B) of the Information Technology Act and under section 4 of Indecent Representation of Women (Prohibition) Act, 1986.
That, the bail and surety bonds of the accused are stands cancelled.
That, the accused shall comply with the provisions of section 437(A) of the Code of Criminal Procedure.
26 C.C.No.5392/2012
That, order passed in respect of Dell company Laptop- P.F.No.70/2011 is made as absolute.
That, MO's no.1 to 4 shall be destroyed after appeal period and MO's no.5 and 6 shall be confiscated to the State.
(Hema Pastapur) I Addl.CMM, Bangalore.