Bangalore District Court
Raghavendra Sr vs Thomas Newton on 29 July, 2024
Digitally signed
by MOHAMMED
KABC030567032022 MOHAMMED YUNUS A
YUNUS A ATHANI
ATHANI Date:
2024.07.31
17:00:35 +0530
Presented on : 13-07-2022
Registered on : 13-07-2022
Decided on : 29-07-2024
Duration : 2 years, 0 months, 16 days
IN THE COURT OF XLV ADDITIONAL CHIEF JUDICIAL
MAGISTRATE, BENGALURU
AT: BENGALURU
Present:- Sri. Mohammed Yunus Athani,
B.A.,L.L.B.
XLV Addl. Chief Judicial Magistrate,
Bengaluru.
Dated this the 29th day of July, 2024
C.C.No.22384/2022
Complainant:
The State,
By Police Inspector,
South-East CEN Crime Police Station,
Bengaluru.
(By Sr. Assistant Public Prosecutor)
-V/S-
C.C.No.22384/2022
2
Accused:
Thomas Newton S/o Jabamani
Age: 58 years,
R/o: No.75, Hanuman Temple,
3rd Main, B.T.M., 2nd Stage,
Bengaluru.
(By Sri R. Manjunatha, Advocate)
Date of incident 05/01/2019
Date of report 28/04/2020
Date of arrest of accused ---
Date of release of accused on 14/10/2022
bail
Period of accused in J.C. ---
Name of the complainant Raghavendra S. R.
Date of commencement of 17/08/2023
evidence
Date of completion of 19/04/2024
evidence
Offences charged U/Sec.67B of Information
Technology Act, 2000.
Opinion of the Judge Accused not found guilty.
JUDGMENT
The Police Inspector, South-East CEN Crime Police Station, Bengaluru, has filed the final report against the accused, for the offences punishable U/Sec.67B of Information Technology Act, 2000.
2. The brief facts of the prosecution case are as under:
It is case of the prosecution that, as per Cyber Tipline complaints received from National Crime Records Bureau C.C.No.22384/2022 3 (NCRB), the accused, on 05/01/2019 at 10:26:43 p.m., in his house No.75, situated at B.T.M., 2 nd Stage, 3rd Main, Bengaluru, within the jurisdiction of South-East CEN Crime Police Station, Bengaluru, has uploaded a video of a minor boy indulged in an act of masturbation, on his facebook account http://www.facebook.com/thomas.newton.9465177 and thereby committed an offence of publishing and transmitting of material depicting children in sexually explicit act in electronic form, punishable under Sec.67B of Information Technology Act, 2000.
3. On the basis of first information statement lodged by the complainant, a case is registered against the accused, for the offence punishable Sec.67A of Information Technology Act, 2000. Accordingly, the investigation officer has conducted the investigation in the case and submitted the final report against the accused, for the offence punishable under Sec.67B of Information Technology Act, 2000.
4. On receipt of prosecution papers, the cognizance of above offence is taken against the accused and summons was issued to him. Accordingly, the accused has appeared in the C.C.No.22384/2022 4 case through his counsel and obtained bail. In compliance of Sec.207 of Cr.P.C., the prosecution papers were supplied to the accused. Thereafter, charge for the offence punishable U/Sec.67B of Information Technology Act, 2000, is framed, read over and explained to the accused in the language known to him. The accused has denied the charge, pleaded not guilty and claimed to be tried.
5. In order to substantiate its case and to bring home the guilt of the accused, the prosecution has examined total four witnesses as P.W.1 to 4 and got marked 13 documents as Ex.P.1 to 13 and two material objects as M.O.1 & 2. After closure of the prosecution evidence, the statement of accused as contemplated U/Sec. 313 of Cr.P.C., is recorded and read over to the accused. The accused has denied all the incriminating circumstances appearing in the prosecution evidence and stated no evidence in his defence.
6. I have heard the arguments of both the sides and perused the entire material available on record.
7. The following points arise for my consideration:
C.C.No.22384/2022 5 POINTS
1. Whether the prosecution proves beyond all reasonable doubt that, on 05/01/2019 at 10:26:43 p.m., in his house No.75, situated at B.T.M., 2nd Stage, 3rd Main, Bengaluru, within the jurisdiction of South-East CEN Crime Police Station, Bengaluru, the accused has uploaded a video of a minor boy indulged in an act of masturbation on his facebook account http://www.facebook.com/thomas.newton.94 65177 and thereby committed an offence of publishing or transmitting material depicting children in sexually explicit act in electronic form punishable under Sec.67B of Information Technology Act, 2000 ?
2. What order ?
8. My findings on the above points are as under:
POINT No.1: Negative.
POINT No.2: As per the final order for the following:
REASONS
9. POINT No.1: In order to prove its case and to bring home the guilt of the accused, the prosecution has examined four witnesses as P.W.1 to 4 and got marked 13 documents as Ex.P.1 to 13 and two material objects as M.O.1 & 2. The P.W.1 C.C.No.22384/2022 6 is the complainant/first informant, P.W.2 is hearsay witness, P.W.3 & 4 are investigation officers in the case.
10. It is specific case of the prosecution that, on 28/04/2020, the P.W.1 has received a letter and compact disc from CID office, which contained a report from National Crime Records Bureau (NCRB) and a Cyber Tipline complaint bearing No.49294906/2020. Accordingly, he has registered a case against the accused, prepared first information report and submitted to the Court. Thereafter, the P.W.3 & 4, who are the investigation officers in the case, have carried out investigation and found that, the accused has uploaded the alleged video of a minor boy indulged in an act of masturbation, seen in Ex.P.12 & 13 screen-shot photographs, on his facebook account http://www.facebook.com/thomas. newton.9465177 and thereby committed an offence of publishing and transmitting material depicting children in sexually explicit act in electronic form, punishable under Sec.67B of Information Technology Act, 2000.
11. But, it is pertinent to note that, the P.W.1 in his cross- examination at Page No.2 has clearly admitted that, he has C.C.No.22384/2022 7 not verified the M.O.1 compact disc, said to be received by him from CID office and just on the basis of letter received along with the said CD, he has registered the case against the accused. Further, the P.W.2, to whom the accused is alleged to have shared or transmitted the explicit video of a minor boy indulged in an act of masturbation, has unequivocally denied the same. It is strange to note that, though it is specific case of the prosecution that, the accused has shared the alleged video of a minor boy indulged in an act of masturbation to his friend P.W.2, the investigation officer has not seized the mobile phone of P.W.2, to which the accused is said to have to send the alleged explicit video. Further it is strange to note the reason stated by the investigation officer/P.W.4 in his cross- examination for not seizing the mobile phone of P.W.2. The P.W.4 in his cross-examination at Page No.3 has voluntarily stated that, as P.W.2/C.W.4 has recorded his statement with respect to same, he did not found it necessary to seize his mobile phone. The P.W.4 has denied the suggestion made to him during his cross-examination that, as the accused has not send any explicit video to the mobile number of P.W.2, he has not seized his mobile phone. But, he has clearly admitted C.C.No.22384/2022 8 that, in Ex.P.6 Analysis Report, issued by the authorised officer of Group Cyber ID Technology Pvt. Ltd., it is clearly mentioned at Page No.3 that, on analysis of SIM cards marked as '01a' and '01b', no case related data is found in the said SIM cards. The SIM cards marked as '01a' and '01b' are the SIM cards belonging to the accused, alleged to have been seized from the mobile phone of accused, which is marked as '01'. The Ex.P.6 Analysis Report clearly speaks that, the exhibit mobile phone 'Vivo: marked as '01' was extracted using forensic software 'Cellebrite UFED 4PC (VER. 7.52) and analysed using 'Cellebrite UFED Physical Analyzer (VER. 7.52) and the data of the SIM card marked as '01a' and '01b' was extracted using forensic software 'Cellebrite UFED 4 PC (VER. 7.52) by connecting it to the Cellebrite SIM card adaptor. Whereas, the mobile phone marked as '01' contains case related 2 images and 64 videos.
12. No doubt, it is clearly mentioned in the Ex.P.6 Analysis report that, the mobile phone marked as '01' contains case related 2 images and 64 videos. But, it is pertinent to note that, in the said report it is also clearly mentioned that, the mobile phone marked as '01' was not protected with any C.C.No.22384/2022 9 access control password. In such circumstances, the burden was on the prosecution to prove that, the accused himself has downloaded the explicit video of minor boy indulged in an act of masturbation in the said mobile phone and transmitted the same to the mobile number of P.W.2. Firstly, there is absolutely no evidence on record to show that, the alleged explicit video has been transmitted to the mobile number of P.W.2. The P.W.4, who is investigation officer in the case has clearly admitted that, he has not seized the mobile phone of P.W.2 to which the accused is alleged to have send the alleged explicit video.
13. Further, it is specific case of the prosecution that, the investigation officer has seized the M.O.2 mobile phone from the possession of accused in the presence of mahazer witnesses C.W.2 & 3 and at the time of seizure the said mobile phone was containing the alleged explicit video of boy indulged in an act of masturbation and other explicit material. But, the prosecution has failed to secure and examine the said mahazer witnesses. In such circumstances, there is no other option before this Court except to hold that, the prosecution has failed to prove through cogent and corroborative evidence C.C.No.22384/2022 10 that, the alleged M.O.2 mobile phone has been siezed from the possession of accused and it was containing the alleged explicit videos at the time of seizure. It is clearly stated in the Ex.P.6 Analysis Report that, the M.O.2 mobile phone marked as '01' was not protected with any access control password. In such circumstances, chances of downloading or transmitting the alleged explicit video in M.O.2 mobile phone by any third person cannot be easily over-ruled. Further, it is pertinent to note that, nothing with regard to from which path the alleged explicit videos have been downloaded or transmitted in M.O.2 mobile phone has been stated or opined by the forensic expert in his Ex.P.6 Analysis Report. In order to attract Sec.67B of Information Technology Act, 2000, the prosecution has to prove that, the accused was having intention to download or transmit the explicit material of a child.
14. The Section 67B of Information Technology Act, 2000, prescribes punishment for publishing or transmitting of material depicting children in sexually explicit etc., which reads as follows:
C.C.No.22384/2022 11 Sec.67B - Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form - Whoever -
a) publishes or transmits or causes to be published or transmitted material in any electronic 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
c) cultivate, 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 resources; 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 C.C.No.22384/2022 12 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.
Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form-
i) the publication of which is proved to be justified as being for the public good on the ground that, such book, pamphlet, paper, writing, drawing, painting representation or figure is in the interest of science , literature, art or learning or other objects of general concern; or
ii) which is kept or used for bonafide heritage or religious purposes.
Explanation - For the purposes of this section 'children' means a person who has not completed the age of 18 years.'
15. In order to say that the accused has committed an offence punishable under Section 67B of Information Technology Act, 2000, the foremost burden on the prosecution is to prove that, the explicit video or photograph in question is of a child or minor. But, in the present case, there is C.C.No.22384/2022 13 absolutely no evidence on record to show that, the person seen in Ex.P.12 & 13 photographs and M.O.1 compact disc is a minor or a child. Further, the investigation officer/P.W.4 has clearly admitted in his cross-examination that at Page No.5 that, it is not possible to say the exact age of the person seen in Ex.P.12 & 13 photographs. This clearly goes to show that, the investigation officer without ascertaining the age of the person seen in alleged explicit video and without ascertaining whether the accused has transmitted the said video to his friend P.W.2, has jumped to conclusion that the accused has committed an offence punishable under Section 67B of Information Technology Act, 2000 and has foisted charge- sheet against the accused. None of ingredients of offence punishable under Sec.67B of Information Technology Act, 2000, has been established by the prosecution in the present case.
16. Therefore, for the above stated reasons, this Court is of the considered opinion that, the prosecution has utterly failed to prove the charges leveled against the accused beyond all reasonable grounds. There is absolutely no evidence on record to show that, on the alleged date, time and place of offence, C.C.No.22384/2022 14 the accused has uploaded the alleged explicit video of a minor boy indulged in an act of masturbation, on his facebook account http://www.facebook.com/thomas.newton.9465177. As such, the accused is entitled for acquittal. Accordingly, I answer Point No.1 in Negative.
17. Point No.2: In view of above conclusion, I proceed to pass the following order:
ORDER Acting U/Sec.248(1) Cr.P.C., the accused is acquitted for the offence punishable U/Sec.67B of Information Technology Act, 2000.
The bail bond and surety bond executed by the accused stand canceled.
The M.O.1 compact disc is ordered to be destroyed and M.O.2 mobile phone is ordered to be released in favour of the accused, after expiry of appeal period.
(Dictated to the Stenographer, directly on the computer, transcript revised, corrected and then pronounced by me in the open Court on this the 29 th day of June, 2024) (Mohammed Yunus Athani) XLV A.C.J.M., Bengaluru.
C.C.No.22384/2022 15 ANNEXURE List of witnesses examined on behalf of prosecution P.W.1: Raghavendra S. S/p Ramanna M. T. P.W.2: Suhas S/o Hemaraj P.W.3: L. Y. Rajesh S/o B. V. Lakshmaiah P.W.4: Yogesh S. T. S/o Tippeshappa S. B. List of documents exhibited on behalf of prosecution Ex.P.1: First Information Statement. Ex.P.2: Letter issued by DGP, CID, Bengaluru.
Ex.P.3: First Information Report. Ex.P.4: Statement of P.W.2. Ex.P.5: Requisition Letter of Investigation Officer. Ex.P.6: Analysis Report. Ex.P.7: Compact Disc. Ex.P.8: Certificate issued U/Sec.65B(4) of Evidence Act. Ex.P.9: SIM Card Application Form.
Ex.P.10: Certificate issued U/Sec.65B(4) of Evidence Act. Ex.P.11: Voluntary Statement of Accused. Ex.P.12: Explicit Photograph. Ex.P.13: Explicit Photograph.
List of material objects marked on behalf of prosecution M.O.1: Compact Disc M.O.2: Mobile Phone.
C.C.No.22384/2022 16 List of witnesses examined and documents marked on behalf of accused
- NIL -
XLV A.C.J.M., Bengaluru.
C.C.No.22384/2022 17 (Order pronounced in open Court vide separate judgment) ORDER Acting U/Sec.248(1) Cr.P.C., the accused is acquitted for the offence punishable U/Sec.67B of Information Technology Act, 2000.
The bail bond and surety bond executed by the accused stand canceled.
The M.O.1 compact disc is ordered to be destroyed and M.O.2 mobile phone is ordered to be released in favour of the accused, after expiry of appeal period.
XLV A.C.J.M., Bengaluru.