Bangalore District Court
State By Basaveshwarnagar vs For The Offences Punishable Under ... on 16 May, 2018
IN THE COURT OF THE I ADDL.CMM: BENGALURU
Dated this the 16th day of May 2018.
Present: Shri V.Jagadeesh, B.Sc., LL.M.
I Addl. C.M.M BENGALURU.
JUDGMENT U/s.355 Cr.P.C.,
Case No. : C.C.No.4599/2014
Date of Offence : 9-3-2013 to 25-3-2013
Name of complainant : State by Basaveshwarnagar
Police Station, Bengaluru.
Name of accused : V.Gopal s/o late Ananthanayak,
aged 48 years, r/o No.08,
5th cross, Katriguppe,
Bengaluru.
Offences complained off: U/s. 66 and 67 of I.T.Act.
Plea of accused : Pleaded not guilty
Final Order : As per final order
Date of Order : 16-3-2018.
JUDGMENT
The Sub-Inspector of Police, Basaveshwarnagar Police Station, Bengaluru has filed the charge sheet against the accused for the offences punishable under Sections 66 and 67 of Information Technology Act, 2000.
2 C.C.No.4599/2014
2. It is the case of the prosecution that, between 9-3-2013 to 13-3-2013 the accused has sent obscene messages to C.W.3, the wife of C.W.1 to her mobile No.944968559 from his mobile bearing No.9741132167. Under such circumstances, the complainant has filed a complaint against the accused before the jurisdictional police. Accordingly, the Basaveshwarnagar police have registered a case against the accused for the offences punishable under Sections 66 and 67 of Information Technology Act in Crime No.160/2013. After completion of investigation, the Investigating Officer has filed the charge sheet against the accused for the aforesaid offences.
3. After appearance of the accused, necessary documents as relied by the prosecution, are furnished to the accused as provided under Section 207 of Cr.P.C. Charge has been framed and same is read over and explained to the accused. The accused pleaded not guilty and claims to be tried. Therefore, the case was posted for prosecution evidence. 3 C.C.No.4599/2014
4. C.Ws.1 to 8 have been cited as charge sheet witnesses. In order to prove the guilt of the accused, during the course of trial, C.Ws.4, 2, 8 and 7 are examined as P.Ws.1 to 4 respectively and got marked Exs.P1 to P4 and identified M.Os.1 and 2. So far as other charge sheet witnesses are concerned, their presence is not secured, inspite of sufficient time and repeated issuance of summons and warrants. Therefore, they are dropped.
5. After completion of prosecution evidence, the statement of the accused was recorded under Section 313 of Cr.P.C. The accused has not adduced any defence evidence on his behalf. Therefore, there is no defence evidence on behalf of the accused.
6. Heard the arguments of learned Senior A.P.P. and counsel appearing for accused. The points that would arise for my consideration are as under:
1. Whether the prosecution proves beyond all reasonable doubt that, the accused has committed the offences punishable under Sections 66 and 67 of Information Technology Act, 2000?4 C.C.No.4599/2014
2. What order ?
7. My answer to the above points are as under:
Point No.1: In the Negative.
Point No.2: As per final order, for the following:
REASONS
8. Point No.1:- The contention of the prosecution is that, between 9-3-2013 to 13-3-2013 the accused has sent obscene messages to C.W3, the wife of C.W.1 to her mobile No.944968559 from his mobile bearing No.9741132167 and thereby the accused has committed the offences punishable under Sections 66 and 67 of Information Technology Act, 2000.
9. In order to prove the guilt of the accused for the offences punishable under Sections 66 and 67 of Information Technology Act, 2000, C.W.4 is examined as P.W.1. P.W.1 is a mahazar witness has not supported the case of the prosecution and pleaded ignorance. Therefore, he was treated as hostile witness and cross-examined by the learned Senior A.P.P. with the permission of the court, but nothing 5 C.C.No.4599/2014 has been elicited in the course of cross-examination to prove the mahazar.
10. C.W.2 is examined as P.W.2 who has deposed that the accused is his friend and he was well conversant with accused. Therefore, he has borrowed loan of Rs.10,000/- and was paying interest at the rate of Rs.3,000/- per month. It is further deposed by P.W.2 that he is a pigmy collector of the bank. It is further deposed by P.W.2 that the accused has taken his mobile on 8-3-2013 on the ground that he wants to call to somebody who has borrowed the loan from him and after 10-15 minutes he has taken back the phone from the accused. In chief-examination itself P.W.1 in para No.1, page No.2 has deposed to the following effect:
¢B 26.03.2013 gÀAzÀÄ §¸ÀªÉñÀégÀ £ÀUgÀ À ¥ÉÇðøï oÁuɬÄAzÀ £À£ÀߣÀÄß §gÀ®Ä ºÉý MAzÀÄ PÀgÉ §AvÀÄ. £Á£ÀÄ oÁuÉUÉ ºÉÆÃzÁUÀ DgÉÆæ UÉÆÃ¥Á¯ï ¸ÀºÀ C¯Éèà EzÀÝgÀÄ. £À£Àß ªÉƨÉʯï£À°èzÀÝ £ÀªÀÄä ¨ÁåAQ£À°è PÉ®¸À ªÀiÁqÀĪÀ gÁzsÁ J£ÀÄߪÀªÀgÀ ªÉƨÉÊ¯ï £ÀA§gï ¥ÀqÉzÀÄPÉÆAqÀÄ DgÉÆæAiÀÄÄ vÀ£Àß ªÉƨÉʯï¤AzÀ 09.03.2013 jAzÀ 16.03.2013 gÀªÉgÉUÀÆ gÁzsÁ 6 C.C.No.4599/2014 CªÀjUÉ C²èî ¸ÀAzÉñÀUÀ¼À£ÀÄß gÀªÁ¤¸ÀÄwÛzÀÄÝzÀÄ w½zÀÄ §AvÀÄ. ¸ÀĪÀiÁgÀÄ 7-8 ¥ÀÅlUÀ¼À C²èî ¸ÀAzÉñÀUÀ¼À£ÀÄß PÀ¼ÀÄ»¹gÀĪÀÅzÀÄ w½¬ÄvÀÄ.
The evidence of P.W.2 as above discloses that the accused might have utilized his mobile and sent obscene messages to C.W.3 between 9-3-2013 to 16-3-2013. According to the prosecution, the accused has sent obscene messages between 9-3-2013 to 16-3-2013 to C.W.3 who is the wife of complainant. When there is no material evidence to prove the seizure of the mobile from the possession of accused, the allegations made against the accused in sending obscene messages to the wife of the complainant through his mobile is not proved. Moreover, in order to prove the guilt of the accused beyond all reasonable doubt, the complainant himself is not examined before the court. Therefore, non-examination of complainant before the court is fatal to the case of the prosecution. Moreover, absolutely there is no material evidence to prove that the obscene messages were sent to C.W.3 by the accused through his mobile is not proved. In the absence of any such material 7 C.C.No.4599/2014 evidence, the allegations made against the accused is not sustainable. Moreover, the messages sent by the accused to C.W.3 are from the mobile of P.W.2, but not from his mobile. Therefore, the allegations made against the accused are not proved.
11. C.W.8 is examined as P.W.3 who is a Police Inspector and Investigating Officer who has deposed with regard to investigation conducted by him during the course of investigation with regard to his official duty. It is further deposed by P.W.3 in chief-examination itself in page No.2 to the following effect:
£ÀAvÀgÀ FvÀ£À£ÀÄß PÀÆ®APÀĵÀªÁV «ZÁgÀ ªÀiÁqÀ¯ÁV FvÀ£ÀÄ vÀ£Àß vÀ¥Àà£ÀÄß M¦àPÉÆAqÀ ªÉÄÃgÉUÉ CªÀ£À ¸ÀéEZÁÒ ºÉýPÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄ CzÀgÀAvÉ DvÀ£À §½ EzÀÝ 2 ªÉƨÉʯïUÀ¼À£ÀÄß CAzÀgÉ MAzÀÄ JfJA ZÉÊ£Á ¸Émï ªÉƨÉÊ¯ï ªÀÄvÉÆÛAzÀÄ £ÉÆÃQAiÀiÁ ¸Émï ªÉƨÉʯï£ÀÄß ºÁUÀÆ DgÉÆæAiÀÄ£ÀÄß ªÀ±ÀPÉÌ ¥ÀqÉzÀÄ oÁuÉUÉ PÀgvÉ ÀAzÀÄ C°è ¥ÀAZÀgÁzÀ gÁdÄ ªÀÄvÀÄÛ gÀ«PÀĪÀiÁgïgÀªÀgÀ£ÀÄß PÀgz É ÀÄ CªÀgÀ ¸ÀªÀÄPÀëªÀÄ F 8 C.C.No.4599/2014 JgÀqÀÆ ªÉƨÉʯïUÀ¼À£ÀÄß CªÀiÁ£ÀvÀÄÛ ¥Àr¹PÉƼÀî¯Á¬ÄvÀÄ.
The evidence of P.W.3 as above shows that a case has been registered against the accused only on the basis of voluntary statement of the accused recorded during the course of investigation, but not by the information given by P.W.3. Therefore, the evidence of P.W.3 creates a doubt with regard to the allegations made against the accused for the alleged offences. Though P.W.3 was cross-examined by the learned counsel for the accused is not much important.
12. C.W.7 is examined as P.W.4 who is a Police Constable who was deputed by his senior officer to arrest the accused. As already discussed above, the complainant and other independent witnesses have not been examined before the court. It is also important point to be noted at this stage itself that C.W.3 to whom the alleged messages were sent is also not examined. Therefore, non-examination of material witness is fatal to the case of the prosecution to prove the guilt of the accused. Therefore, viewed from any angle and in view of the above discussions and reasonings, I am of the 9 C.C.No.4599/2014 firm opinion that the evidence of P.Ws.1 to 4 is not all sufficient to prove the guilt of the accused for the offences punishable under Sections 66 and 67 of Information Technology Act, 2000 beyond all reasonable doubt. Hence, it is held that the accused is entitled for acquittal for the alleged offences. Accordingly, I answer point No.1 in the negative.
13. Point No.2:- In view of my answer on the point No.1, I proceed to pass the following:
ORDER The accused is not found guilty for the offences punishable under Sections 66 and 67 of Information Technology Act, 2000. Therefore, he is acquitted for the said offences under Section 248(1) Cr.P.C.
The bail bonds executed by the accused stands cancelled.
M.Os.1 and 2 shall be confiscated to the State after appeal period is over.10 C.C.No.4599/2014
(Dictated to the stenographer directly on computer, typed by her, revised and then corrected by me and then pronounced in open court on this the 16th day of May 2018).
(V.Jagadeesh) I Addl. CMM., Bengaluru.
ANNEXURE List of witnesses examined on behalf of prosecution:-
P.W.1, Raju, P.W.2, Rathnakara, P.W.3, C.A.Siddalingaiah, P.W.4, Gopal N;
List of documents marked on behalf of prosecution:-
Ex.P1, Seizure mahazar,
Ex.P1(a), Signature of P.W.1,
Ex.P1(b), Signature of P.W.3,
Ex.P2, Complaint,
Ex.P2(a), Signature of P.W.2,
Ex.P3, FIR,
Ex.P3(a), Signature of P.W.3,
Ex.P4, Computer generated copy of call details
and phone data,
Ex.P4(a), Signature of P.W.3;
Material Objects Produced:-
M.O.1, AGM China mobile set,
M.O.2, Nokia mobile;
11 C.C.No.4599/2014
Witnesses examined on behalf of the defence, documents marked:- NIL.
(V.Jagadeesh) I Addl. CMM., Bengaluru.12 C.C.No.4599/2014
16/5/2018 State by Sr.APP Accused C/B For Judgment (Judgment pronounced in the Open Court) ORDER The accused is not found guilty for the offences punishable under Sections 66 and 67 of Information Technology Act, 2000. Therefore, he is acquitted for the said offences under Section 248(1) Cr.P.C.
The bail bonds executed by the accused stands cancelled. M.Os.1 and 2 shall be confiscated to the State after appeal period is over.
(V.Jagadeesh) I ACMM, Bengaluru.13 C.C.No.4599/2014 14 C.C.No.4599/2014