Bangalore District Court
(Rep. By Sr.App) vs And As Such Charge Sheet Is Fled For The on 7 April, 2021
IN THE COURT OF THE I st ADDL.CMM:
BENGALURU
Dated this the 7 th day of April 2021.
Present: Shri Bhat Manjunath Narayan,
B.Com., LL.B.
Ist Addl. C.M.M BENGALURU.
C.C.No.3776/2019
State by Mahadevapura Police Station
Bengaluru. ....Complainant
(Rep. by Sr.APP)
Vs
Gowtham Ganesh @ Gowtham
s/o Ravi, aged 27 years,
R/o No.142, 4th cross, Ashraya Layout,
Mahadevapura, Bengaluru. .....Accused
(Rep. by Ganesh R. Advocate)
1. Sl. No. of the case : CC No.3776 of 2019
2. The date of commission of : 26.07.2018
the ofence
3. Name of Complainant : Neha Rajput
4. Name of the accused : As stated above
5. The ofences complained or : U/s 354C of IPC R/w sec.
proved 66(E) of I.T.Act
C.C.No.3776/2019
2
6. Plea of the accused and his : Pleaded not guilty
examination
7. Date of Commencement of : -----
evidence
8. Date of Closing of : -----
prosecution evidence
9. Opinion of Judge : Accused not guilty
10. Date of Judgment : 07-04-2021
(Bhat Manjunath Narayan)
Ist Addl. CMM., Bengaluru.
C.C.No.3776/2019
3
JUDGMENT
That, Mahadevapura police have fled charge sheet against the accused alleging that he has committed an ofence punishable under Section 354C of I.P.C R/w sec.66(E) of Information Technology Act.
2. The brief facts and allegations made in the charge sheet are as under:
It is alleged in the charge sheet that on 26-07-2018 at about 9-45 p.m, C.W.1 Kum.Neha Rajaput along with C.W.2 Varun C.W.3 Vijay were in Phoenix Market City PVR Cinema for taking ticket, and at that time, the accused Goutham made videos of C.W.1 Neha Rajaput and other woman. It is further alleged that by noticing the act of accused, C.W.1 Neha Rajaput and her friends Varun and Vijay have caught hold accused. On verifcation of his smart phone, C.W.1 found that accused has taken photos of C.W.1 and made videos. Therefore, accused Goutham was taken to Mahadevapura Police Station.
3. C.W.1 Neha Rajaput has fled complaint on 26-07-2018 to Mahadevapura police and as per complaint fled by C.W.1 Mahadevapura PS Cr.No.371/2018 came to be registered. On 26-7- 2018 itself mobile phone of accused was seized in C.C.No.3776/2019 4 the presence of C.W.6 Shankarabharana and C.W.7 Channappa. In the presence of C.W.4 Venkatesh and C.W.5 Manjunath, IO has prepared spot mahazar. The Investigating ofcer has sent mobile phone seized to the forensic analysis. After recording the statement of witnesses, the Investigating Ofcer has come to a conclusion that the accused was recording the videos of C.W.1 and Investigating Ofcer has also found videos containing obscene material in the mobile of accused and as such charge sheet is fled for the ofence punishable under sec.354C IPC R/w sec.66(E) of Information Technology Act.
4. After fling of charge sheet, cognizance for the ofence punishable under section 354(C) of IPC R/w sec.66(E) of Information Technology Act is taken and the presence of accused is secured by issuing summons. During crime stage only, the accused was released on bail. Copy of the prosecution papers were supplied to the accused as required under sec.207 of Cr.P.C.
5. Charge for the ofence punishable under section 354C IPC R/w sec.66E of IT Act is read over and explained to the accused and accused pleaded not guilty. In order to prove the guilt of the accused C.C.No.3776/2019 5 for the ofence stated in the charge sheet, prosecution has failed to secure the presence of C.W.1 to 10. In-spite of issuance of summons, NBWs and proclamation to witnesses including Investigating ofcers, they have not attended the court to depose. Therefore, this court has rejected the prayer of Sr.APP to issue summons/ NBW to witnesses.
6. As there is no incriminating material against the accused, statement of accused as required under Section 313 of Cr.P.C. is dispensed with. The accused has not led oral or documentary evidence in support of his contention.
7. On the basis of charge sheet allegation, documents produced by the prosecution, the following points arose for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 26-06-2018 at about 9-45 p.m. in Phoenix Market City, PVR Cinema Theater, the accused has captured the image of C.W.1 Neha Rajaput and thereby committed an ofence punishable under sec.354(C) of IPC R/w sec.66 of Information Technology Act?
C.C.No.3776/2019 6
2. What order ?
8. Heard Counsel appearing for the accused and learned Sr.APP. and my fndings on the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per fnal order, for the
following:
REASONS
Point No.1 : -
9. That, in this case prosecution is alleging that the accused has committed an ofence of voyeurism punishable under sec.354C of IPC R/w sec.66E of Information Technology Act. The case of the prosecution is that the accused was taking photographs of C.W.1 Neha Rajaput and on verifcation it is found that in the mobile of accused there were obscene videos of child pornography and as such it is alleged that the accused has also committed an ofence punishable under sec.66(E) of Information Technology Act.
C.C.No.3776/2019 7
10. In order to prove the guilt of the accused, the prosecution has not examined any of the witnesses cited in the charge sheet. This court has issued summons NBWs and even proclamation to the witnesses including Investigating Ofcers. But State has failed to secure the presence of witnesses. This being the case there is oral evidence to substantiate / corroborate the allegations made in the charge sheet.
11. I have perused the documents submitted along with charge sheet. It is stated in the charge sheet that the mobile phones contains obscene videos of child pornography and photos & videos of C.W.1. Though mobile alleged to have been used by accused was seized and forensically examined, the Investigating Ofcer has not produced any material to show that the said mobile phone contained child pornography / obscene videos or videos of C.W.1 Neha Rajaput and other young girls. Absolutely there C.C.No.3776/2019 8 is no evidence or video available as stated in the charge sheet. The ofence of Sec.354C of IPC i.e. voyeurism & to attract this ofence one must capture image of a woman engaging in a private act in circumstances where she usually have expectation of not being observed either by perpetrator or any other person. In this case the allegation is that the accused was taking photographs in the public place when C.W.1 Neha Rajjaput was in queue for buying ticket. Therefore, the ofence alleged by the prosecution does not attract. This being the case, in my opinion and even if the allegations in the charge sheet are considered to be true then also the ofence under sec.354C of IPC is not made out.
12. In view of non-examination of C.W.6 Shankarabharana and C.W.7 Channappa Harijan, the prosecution is unable to prove the seizure of mobile phone alleged to have containing child pornography and obscene videos. This being the case the ofences C.C.No.3776/2019 9 under sec.66(E) of Information Technology Act is also not attracted. Therefore, in view of failure of prosecution to secure the witnesses, I am of the opinion that the prosecution has failed to prove the ofences alleged against the accused. Accordingly, I answer point No.1 in the negative.
Point No.2: -
13. In view of discussion and conclusion arrived at point No.1, accused is entitled to be acquitted. Hence I proceed to pass following:
ORDER Acting under Section 248(1) of Cr.P.C. the accused is acquitted for the ofence punishable under Section 354C of IPC R/w sec.66(E) of Information Technology Act.
The bail and surety bond
of the accused stand
canceled.
(Dictated to the stenographer, transcribed by her, revised and then corrected by me and then pronounced in open court on this the 7 th day of April 2021).
(Bhat Manjunath Narayan) Ist Addl. CMM., Bengaluru.
C.C.No.3776/2019 10 ANNEXURE List of witnesses examined for prosecution :- NIL List of exhibits marked for prosecution :-NIL List of witnesses examined for defence:- NIL List of documents marked for defence:- NIL (Bhat Manjunath Narayan) Ist Addl. CMM., Bengaluru.