Bangalore District Court
Raj Kumar, Pc-17883 vs Aleem Pasha on 29 July, 2024
Digitally signed
by MOHAMMED
KABC030727632021 MOHAMMED YUNUS A
YUNUS A ATHANI
ATHANI Date: 2024.07.31
16:59:27 +0530
Presented on : 04-10-2021
Registered on : 04-10-2021
Decided on : 29-07-2024
Duration : 2 years, 9 months, 25 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.27300/2021
Complainant:
The State,
By Police Inspector,
East CEN Crime Police Station,
Bengaluru.
(By Sr. Assistant Public Prosecutor)
-V/S-
Accused:
Aleem Pasha S/o Chand Pasha,
Age: 37 years,
C.C.No.27300/2021
2
R/o: No.91/C, 1st Stage, Munibhairappa Block,
Devarajeevanahalli, Near Arabic College,
Bengaluru - 560045.
(By Sri R. Manjunatha, Advocate)
Date of incident 01/02/2020 to 28/02/2020
Date of report 02/12/2020
Date of arrest of accused 22/01/2021
Date of release of accused on 25/01/2021
bail
Period of accused in J.C. 04 days
Name of the complainant Rajakumar Doddappa Pujari
Date of commencement of 09/03/2023
evidence
Date of completion of 03/02/2024
evidence
Offences charged U/Sec.67 & 67B of
Information Technology Act,
2000.
Opinion of the Judge Accused not found guilty.
JUDGMENT
The Police Inspector, East CEN Crime Police Station, Bengaluru, has filed the final report against the accused, for the offences punishable U/Sec.67 & 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 (NCRB), the accused, from 01/02/2020 to 28/02/2020, in his C.C.No.27300/2021 3 house No.91/C, situated at 1st Stage, Munibhairappa Block, Devarajeevanahalli, Near Arabic College, Bengaluru, within the jurisdiction of East CEN Crime Police Station, Bengaluru, has browsed and uploaded the explicit video of a minor girl and adult man indulged in sexual activities through his whatsapp number No.8197724093, used in his Samsung J-06 mobile phone and thereby committed an offence of publishing or transmitting obscene material depicting children in sexually explicit act in electronic form, punishable under Sec.67, 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 offences punishable under Sec.67, 67B of Information Technology Act, 2000. Thereafter, the accused was arrested and produced before the Court. The accused was remanded to judicial custody. Later, he was released on bail. Accordingly, the investigation officer has conducted the investigation in the case and submitted the final report against the accused, for the offences punishable under Sec.67, 67B of Information Technology Act, 2000.
C.C.No.27300/2021 4
4. On receipt of prosecution papers, the cognizance of above offences is taken against the accused and summons was issued to him. Accordingly, the accused has appeared in the case through his counsel. 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.67 & 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 five witnesses as P.W.1 to 5 and got marked 11 documents as Ex.P.1 to 11 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.
C.C.No.27300/2021 5
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:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that, from 01/02/2020 to 28/02/2020, in his house No.91/C, situated at 1st Stage, Munibhairappa Block, Devarajeevanahalli, Near Arabic College, Bengaluru, within the jurisdiction of East CEN Crime Police Station, Bengaluru, the accused has browsed and uploaded the explicit video of a minor girl and adult man indulged in sexual activities, through his whatsapp number No.8197724093, used in his Samsung J-06 mobile phone and thereby committed an offence of publishing or transmitting obscene material in electronic form punishable under Sec.67 of Information Technology Act, 2000 ?
2. Whether the prosecution proves beyond all reasonable doubt that, on the above date, time and place of offence, the accused has browsed and uploaded the explicit video of a minor girl and adult man indulged in sexual activities, through his whatsapp number C.C.No.27300/2021 6 No.8197724093, used in his Samsung J-06 mobile phone 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 ?
3. What order ?
8. My findings on the above points are as under:
POINT No.1: Negative.
POINT No.2: Negative.
POINT No.3: As per the final order for the following:
REASONS
9. POINT No.1 and 2: As both these points are inter- connected to each other, in order to avoid repetition of facts and circumstances of the case and for better appreciation of evidence on record, I take both the points together for common discussion.
10. In order to prove its case and to bring home the guilt of the accused, the prosecution has examined five witnesses as P.W.1 to 5 and got marked 11 documents as Ex.P.1 to 11 and two material objects as M.O.1 & 2. The P.W.1 is a Police C.C.No.27300/2021 7 Officer who has registered the case and prepared First Information Report against the accused. The P.W.2 is the complainant/first informant in the case. The P.W.3 is a Police Official who is said to have apprehended the accused from his house and produced before the investigation officer. The P.W.4 is the mahazer witness to Ex.P.6 retrieve mahazer and Ex.P.7 seizure mahazer. The P.W.5 is the investigation officer who has foisted the charge-sheet against the accused. The P.W.6 is the Scientific Officer who is said to have examined the electronic devices seized in the case and issued Ex.P.10 Analysis Report.
11. It is specific case of the prosecution that, on 02/12/2020, the P.W.2 has received a letter and compact disc from C.I.D. Office, Bengaluru, which contained a report from National Crime Records Bureau (NCRB) and a Cyber Tipline complaint bearing No.74377485/2020. Accordingly, he has lodged the first information statement with respect to same before P.W.1. The P.W.1 has prepared first information report and submitted to the Court. Thereafter, the P.W.1 & 5, who are the investigation officers in the case, have carried out investigation and found that, the accused has browsed and C.C.No.27300/2021 8 uploaded the explicit video of a minor girl and adult man indulged in sexual activities through his whatsapp number No.8197724093, used in his Samsung J-06 mobile phone and thereby committed an offence of publishing or transmitting obscene material depicting children in sexually explicit act in electronic form, punishable under Sec.67, 67B of Information Technology Act, 2000.
12. But, it is pertinent to note that, the P.W.2 in his cross-examination has clearly admitted that, he had no specific order from the Station House Officer to lodge complaint against the accused in the case and he has no technical experience to examine authenticity of explicit videos. Likewise, the P.W.1, the Police Officer who has registered the case against the accused and prepared First Information Report in the case has also clearly admitted in his cross- examination that, they register such type of cases without any preliminary enquiry and he has not received any property at the time of registering first information report. This clearly goes to show that, the P.W.1 & 2 have not verified the contents of M.O.1 compact disc and just on the basis of letter C.C.No.27300/2021 9 received from C.I.D. office, they have registered the case against the accused.
13. Further, it is specific case of the prosecution that, the investigation officer/P.W.5 has seized the M.O.2 mobile phone from the possession of accused and he has retrieved the data from the said mobile phone in the presence of mahazer witnesses P.W.4 & C.W.3. But, the P.W.4 has unequivocally denied the same. He has clearly deposed that, the Police have neither seized the M.O.2 mobile phone, nor they have retrieved any data from the said mobile phone in his presence. Further, he has clearly stated that, at the request of Police he has put his signature on Ex.P.6 mahazer and he does not know the contents of said document. Whereas, C.W.3, who is said to be another mahazer in whose presence the investigation officer has seized the M.O.2 mobile phone from the possession of accused and retrieved the data from the said mobile phone, has not been examined by the prosecution. Even after repeated issuance of summons and warrant against C.W.3, the prosecution has failed to secure and examine the said witness. Further, it is pertinent to note that, no where in the Ex.P.6 Retrieve Mahazer or Ex.P.7 Seizure Mahazer the IMEI C.C.No.27300/2021 10 number of the mobile phone alleged to have been seized and retrieved by P.W.5 has been mentioned. 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 that, the alleged M.O.2 mobile phone has been siezed from the possession of accused and the data from the said mobile phone has been retrieved in the presence of mahazer witnesses P.W.4 & C.W.3.
14. No doubt, it is clearly mentioned in the Ex.P.10 Analysis report that, based on the visual observation, the visuals of the video file namely "74377485" of Sony DVD-R marked as D1 and visuals of the video file namely "f2a95891fe0cb6b8e8007a4285e16.mp4" of Samsung mobile phone marked as D2a are similar. But, there is no cogent and corroborative evidence to show that, the mobile phone alleged to have been seized by investigation officer from the possession of accused has been submitted to Forensic Science Laboratory and the said mobile phone itself has been examined by the forensic science expert. Because, no where in the Ex.P.7 Seizure Mahazer the IMEI number of the mobile C.C.No.27300/2021 11 phone alleged to have been seized from the possession of accused has been mentioned. Even, it is not been mentioned in the requisition letter addressed to the Forensic Science Laboratory along with which the M.O.2 mobile phone was submitted to the Forensic Science Laboratory. The P.W.6 has clearly admitted in his cross-examination that, no IMEI number of M.O.2 mobile phone was mentioned in the requisition letter submitted to him by the investigation officer along with articles. Further, he has clearly admitted that, he has not issued the certificate mandated under Sec.65B of Evidence Act along with the Ex.P.10 Analysis Report. Further, he has clearly admitted that, no where in the Ex.P.10 Analysis Report he has mentioned that, the alleged video available in the M.O.2 mobile phone was a child porn video or explicit video of a child and also he has not mentioned the date on which the said video was downloaded in M.O.2 mobile phone. In such circumstances, expect the bald allegations made by the investigation officer in the final report, there is absolutely no evidence on record to show that, on the alleged date of offence, the accused has browsed or uploaded the explicit video of a minor girl and adult man indulged in sexual C.C.No.27300/2021 12 activities through his whatsapp number No.8197724093, used in his Samsung J-06 mobile phone. There is no cogent, corroborative and reliable evidence to show that, the M.O.2 mobile phone has been seized from the possession of accused in the presence of mahazer witnesses and at the time of seizure the said mobile phone was containing the alleged explicit video of a minor girl and adult man indulged in sexual activities. 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. But, nothing has been stated or opined by the forensic expert in the Ex.P.10 Analysis Report with regard to from which path the alleged explicit video has been downloaded or transmitted in M.O.2 mobile phone.
15. The Section 67 of Information Technology Act, 2000, prescribes punishment for publishing or transmitting obscene material in electronic form., which reads as follows:
Sec.67 - Punishment for publishing or transmitting obscene material in electronic form - Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to C.C.No.27300/2021 13 the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
16. Likewise, 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:
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 C.C.No.27300/2021 14
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 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-
C.C.No.27300/2021 15
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.'
17. 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 absolutely no evidence on record to show that, the girl seen in the alleged explicit video available in M.O.1 compact disc is a minor or a child. The P.W.6, Scientific Officer who is said to have has examined the alleged explicit has clearly admitted in his cross-examination that, no where in the Ex.P.10 Analysis Report he has opined that, the alleged video available in the M.O.2 mobile phone is a child porn video or explicit video of a C.C.No.27300/2021 16 child. Even the same is admitted by the investigation officer/ PW-5 in her cross-examination at page No.3. 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 himself has browsed or downloaded the alleged explicit video in the M.O.2 mobile phone, has jumped to conclusion that the accused has committed an offence punishable under Section 65 and 65B of Information Technology Act, 2000 and has foisted charge- sheet against the accused. None of ingredients of offence punishable under Sec.67 or Sec.67B of Information Technology Act, 2000, has been established by the prosecution in the present case.
18. 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, the accused has browsed and uploaded the explicit video of a minor girl and adult man indulged in sexual activities through his whatsapp number No.8197724093. As such, the accused C.C.No.27300/2021 17 is entitled for acquittal. Accordingly, I answer Point No.1 & 2 in Negative.
19. Point No.3: 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.67 and 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.
ANNEXURE List of witnesses examined on behalf of prosecution P.W.1: Suresh G. S/o Govindaraju C.C.No.27300/2021 18 P.W.2: Rajkumar S/o Doddappa Pujari P.W.3: Manjunath K. H. S/o Hucchanna P.W.4: Mazar Ahmed S/o Siraj Ahmed P.W.5: Anitha Kumari W/o Manjunath H. P.W.6: Balu M. S/o Mahadev List of documents exhibited on behalf of prosecution Ex.P.1: First Information Statement.
Ex.P.2: First Information Report. Ex.P.3: Property Form. Ex.P.4: Office Letter issued by the I.O. Ex.P.5: Report submitted by P.W.2. Ex.P.6: Retrive Mahazer Ex.P.7: Seizure Mahazer Ex.P.7: Requisition Letter for Mirror Image. Ex.P.9: Notice issued to mahazer witnesses Ex.P.10: FSL Analysis Report. Ex.P.11: Sample Seal
List of material objects marked on behalf of prosecution M.O.1: Compact Disc M.O.2: Mobile Phone.
List of witnesses examined and documents marked on behalf of accused
- NIL -
XLV A. C. J. M., Bengaluru.
C.C.No.27300/2021 19 (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.67 and 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.