Bangalore District Court
( Rep. By Sr.App) vs Has Sent Messages To C.W.2 Smt.Vandana ... on 2 March, 2021
IN THE COURT OF THE I st ADDL.CMM: BENGALURU
Dated this the 2 nd day of March 2021.
Present: Shri Bhat Manjunath Narayan,
B.Com., LL.B.
Ist Addl. C.M.M BENGALURU.
C.C.No.21659/2018
State by Sanjaynagar
Police Station,
Bengaluru. ....Complainant
( Rep. by Sr.APP)
Vs
Rahul S/o Madhi Angan,
aged 22 years, r/o No.44,
4th cross Kanakanagar,
near Railway Gate,
Veerannapalya, Bengaluru 32. .....Accused
(Rep by V.Ramanappa)
1. Sl. No. of the case : CC No.21659 of 2018
2. The date of commission of : 14-12-2016
the ofence
3. Name of Complainant : Sandeep Negi
4. Name of the accused : As stated above
5. The ofences complained or : U/s 507 of IPC R/w sec.67 of
proved I.T.Act
C.C.No.21659/2018
2
6. Plea of the accused and his : Pleaded not guilty
examination
7. Date of Commencement of : 26-02-2020
evidence
8. Date of Closing of : 13.01.2021
prosecution evidence
9. Opinion of Judge : Accused not guilty
10. Date of Judgment : 02.03.2021
(Bhat Manjunath Narayan)
Ist Addl. CMM., Bengaluru.
C.C.No.21659/2018
3
JUDGMENT
That, Sanjaynagar Police have fled charge sheet against the accused alleging that he has committed an ofence punishable under Section 507 of IPC R/w sec. 67 of Information Technology Act.
2. The allegations made in the charge sheet are as under:
It is alleged in the charge sheet that the accused from his mobile No.8892115717 used to send vulgar and objectionable WhatsApp messages to C.W.2 Smt.Vandana to her mobile No.8095311700. It is further alleged by the prosecution that on 14-12-2016 the accused has sent messages to C.W.2 Smt.Vandana and criminally intimidated her by anonymous communication. C.W.2 has informed her husband C.W.1 Sandeep Negi and accordingly C.W.1 has fled complaint before Sanjaynagar police. As per complaint, Sanjaynagar PS Cr.No.281/2016 has been registered against the unknown person for the ofence punishable under sec.67 of Information Technology Act and 507 of IPC. The Investigating Ofcer has visited the spot and prepared mahazar. The Investigating Ofcer has sought details of mobile No.8892115717 from Aircel and CDR & CAF were received along with certifcate under sec.65B of Cr.P.C from Aircel. That apart CDR & CAF of mobile C.C.No.21659/2018 4 No.8095311700 is also sought by Investigating Ofcer and Vodafone has given information with respect to said mobile. The Investigating ofcer has seized the mobile phone from accused in the presence of C.W.3 Arjun and C.W.4 Chandankumar by preparing mahazar. After verifying CDR & CAF, The Investigating Ofcer has come to a conclusion that the accused is a person who has sent vulgar messages to C.W.2 through WhatsAPP and accordingly charge sheet is fled against the accused for the ofence punishable under sec.507 IPC R/w sec.67 of Information Technology Act.
3. After fling of charge sheet cognizance for the ofence punishable under section 507 of IPC R/w sec.67 of Information Technology Act is taken and the presence of accused is secured by issuing summons. The accused is released on bail. Copy of charge sheet is supplied to the accused as required under sec.207 of Cr.P.C.
4. After hearing prosecution and counsel for accused, Charge for the ofence punishable under section 507 of IPC R/w sec.67 of Information Technology Act is framed against the accused. Accused pleaded innocence and as such prosecution had been directed to adduce oral and documentary evidence to prove the guilt of the accused.
C.C.No.21659/2018 5
5. In order to prove the guilt of the accused, out of ten witnesses cited in the charge sheet, prosecution has examined three witnesses as P.Ws.1 to 3 and Ex.P1 to Ex.P13 were marked on behalf of the prosecution. P.W.1- C.W.8 Arasegowda is the Investigating ofcer who has fled frst information. P.W.2 Ramakrishna is the Investigating Ofcer who has collected the documents pertaining to CDRs of mobile No.8892115717. P.W.3 Prashanth R.Varni has recorded the statement of witnesses and collected other documents from the service providers and fled charge sheet.
6. After closure of evidence of prosecution, statement of accused is recorded as required under sec.313 of Cr.P.C. The accused has denied the incriminating material against him. The accused has not adduced oral or documentary evidence in support of his defence.
7. On the basis of charge sheet allegation, the following points arose for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that accused on 14-12-2016 has sent vulgar & objectionable WhatsApp messages from his mobile No.8892115717 to the C.C.No.21659/2018 6 mobile number of C.W.2 bearing No.8095311700 and criminally intimidated her by anonymous communication and thereby committed an ofence punishable under Section 507 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that the accused by his mobile No.8892115717 has sent vulgar messages through WhatsApp using his mobile phone and thereby committed an ofence punishable under Section 67 of Information Technology Act?
3. What order ?
8. Heard Counsel appearing for the accused and learned Sr.APP. Perused the oral and documentary evidence adduced by the prosecution and my fndings on the above points are as under:
Point No.1 & 2 : In the Negative Point No.3 : As per fnal order, for the following:
REASONS Point No.1 and 2: -
9. Point No.1 and 2 are taken for common discussion as they are arising out of same incident and C.C.No.21659/2018 7 in order to avoid repetition. However, separate fnding has been given to each point.
10. That, Sanjaynagar police have alleged that the accused from his mobile No.8892115717 has sent vulgar WhatsApp messages to C.W.2 Vandana to her mobile No.8095311700. In order to prove the guilt of the accused, the persecution has examined three witnesses. P.W.1 to 3 are the Investigating ofcers. The prosecution is unable to secure the presence of C.W.1 complainant Sandeep Negi and C.W.2 victim Vandana. The independent witnesses C.W.3 Arjun and C.W.4 Chandankumar who are the witnesses to the seizure mahazar are also not examined. C.W.5 Prakash and C.W.6 Sheshu who are the Nodal ofcers of Vodafone and Aircel who have given documents pertaining to the mobile No.8892115717 are also not examined.
11. I have perused the oral evidence of Investigating Ofcers in this case in detail. There is no C.C.No.21659/2018 8 oral evidence to show that the accused has sent vulgar WhatsApp messages to C.W.2 Vandana which annoyed or criminally intimidated her. So, in the absence of oral evidence I have perused the documentary evidence produced by the Investigating Ofcer. The Investigating ofcer has produced CDRs pertaining to mobile No.8095311700 which is marked at Ex.P9 and Ex.P10. As per Ex-P9 and Ex-P10 the said number is standing in the name of C.W.2 Vandana. Like that the Investigating Ofcer has also produced Ex.P12 and Ex.P13 documents pertaining to mobile No.88925717. On perusal of Ex.P12 it is clear that the said mobile number is belonging to accused. Though the ofcials of Aircel and Vodafone are not examined if documents is considered then it is clear that mobile No.8892115717 is belonging to accused and mobile No.8095311700 is belonging to C.W.2.
12. In this case prosecution has to further prove that the accused by using his mobile has sent vulgar messages to C.W.2. CDR does not say or gives C.C.No.21659/2018 9 information about the messages sent through WhatsApp. In this connection the Investigating ofcer has not seized the mobile of C.W.2 to show that the messages are sent by accused. Though the mobile phone of accused is said to be seized, seizure mahazar is not proved by examining independent witness. Even if it is considered that the mobile seized is that of accused then also the Investigating Ofcer has not produced the documents to show that the accused has sent vulgar WhatsApp messages to C.W.2. Whatsapp messages are not recovered from the mobile phone and marked before this court. The Investigating ofcer has sent mobile for forensic analysis. The print out of WhatsApp chat is produced in the charge sheet at page No.12 and 13. However, print out of messages does not contain signature of expert or opinion is not annexed to that report. Even expert who has recovered the messages is also not examined in this case nor cited as witness. This being the case, in the absence of oral or documentary evidence to show that vulgar messages are sent by the C.C.No.21659/2018 10 accused he cannot convicted for the ofence punishable under sec.507 of IPC & sec.67 of Information Technology Act. Therefore, in my considered opinion, the charges leveled against he accused is not proved because of non- examination of victim and retrieval of whatsapp messages alleged to have been sent by accused. Therefore, by given beneft of doubt to the accused I hold that prosecution has failed to prove the ingredient of ofence punishable under sec.507 IPC & 67 of I.T. Act. Accordingly I answer point No.1 and 2 in the negative. Point No.3: -
13. In view of discussion and conclusion arrived at point No.1 and 2, 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 Sections 507 of Indian Penal Code R/w sec.67 of Information Technology Act.
C.C.No.21659/2018 11 The bail and surety bond of the accused stand canceled.
Interim order passed with respect to release of mobile phone is made as absolute.
(Dictated to the stenographer, transcribed by her, revised and then corrected by me and then pronounced in open court on this the 2 nd day of March 2021).
(Bhat Manjunath Narayan) Ist Addl. CMM., Bengaluru.
ANNEXURE List of witnesses examined for prosecution :-
P.W.1, Arasegowda, P.W.2, Ramakrishnaiah, P.W.3, Prashanth R.Varni;
List of exhibits marked for prosecution :-
Ex.P1, Complaint,
Ex.P1(a), Signature of P.W.1,
Ex.P2, First information report,
Ex.P2(a), Signature of P.W.1,
Ex.P3, Spot mahazar,
Ex.P3(a), Signature of P.W.2,
Ex.P4, Seizure mahazar,
Ex.P4(a), Signature of P.W.2,
Ex.P5 &
Ex.P6, Photographs,
Ex.P7, Report,
C.C.No.21659/2018
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Ex.P7(a), Signature of P.W.2,
Ex.P8, Letter,
Ex.P9 CDR,
Ex.P10, Certifcate,
Ex.P11, Letter,
Ex.P11(a), Signature of P.W.3,
Ex.P12, CDR,
Ex.P13, Certifcate;
List of material object : NIL
List of witnesses examined for defence:-
NIL List of documents marked for defence:-
NIL (Bhat Manjunath Narayan) Ist Addl. CMM., Bengaluru.
C.C.No.21659/2018 13 2/3/2021 State by Sr.APP Accused C/B For Judgment (Judgment pronounced in the Open Court) ORDER Acting under Section 248(1) of Cr.P.C. the accused is acquitted for the ofence punishable under Sections 507 of Indian Penal Code R/w sec.67 of Information Technology Act.
The bail and surety bond of the accused stand canceled.
Interim order passed with respect to release of mobile phone is made as absolute.
(Bhat Manjunath Narayan) I Addl. CMM., Bengaluru.