Delhi District Court
State vs . Madachirayil Gopinathan Suni on 31 August, 2018
IN THE COURT OF SH. ASHU GARG
CHIEF METROPOLITAN MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI
New Case No. 63/2016
CNR no. DLCT02-000212-2005
RC.: CY1/05/E0005
PS: CBI/SPE/EOU-IV/ND
U/s 506/509/120-B IPC
State vs. Madachirayil Gopinathan Suni
(a) S. No. of the case : 263/2
(b) Name of complainant : Ms. SN
[Identity Concealed]
(c) Date of commission of offence : February, 2005
(d) Name of the accused person Madachirayil Gopinathan
Suni
S/o Sh. Gopinathan Suni,
R/o R-250, Adarsh
Colony, NIT Faridabad,
Haryana, and
Madachirayil House,
PO Thalavadi Taluk
Kuttanad, Distt. Alleppey,
Kerala, India
(e) Offence complained of : U/s. 506/507/509 IPC
& Section 67 of IT Act
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 13.08.2018
(h) Final Order : Convicted
(i) Date of such order : 31.08.2018
RC No. CYI/05E0005 P.S. CBI Page No. 1 of 45
JUDGEMENT:
1. Accused Madachirayil Gopinathan Suni (M. G. Suni) has been facing trial for the offences punishable under section 506/507/509 IPC and section 67 of Information Technology Act, with the allegation that during February, 2005, he had sent obscene and threatening emails thereby criminal intimidating the complainant, from his email IDs, together with a morphed/obscene photograph of the complainant. It is alleged that the accused through the emails sought sexual favours from the complainant and threatened to send the said photograph to her husband in case of her refusal. It is further alleged that the accused had in fact uploaded the said morphed obscene photograph of the complainant on the homepage of indiatimes club site http://clubs.indiatimes.com/clubs/myfirstchoice which in all relevant circumstances could be seen by general public, intending to insult her modesty.
2. The present regular case (RC) was registered by the CBI on 09.03.2005 on the basis of a complaint dated 28.02.2005 of Ms. SN (identity of the complainant concealed), who was working as a receptionist-cum-coordinator in M/s. Pearl Academy of Fashion, who alleged that she had been receiving threatening and obscene emails during February 2005 from unknown persons having email IDs [email protected], [email protected], [email protected] and [email protected]. In those emails, the sender had also attached obscene morphed photograph of RC No. CYI/05E0005 P.S. CBI Page No. 2 of 45 the complainant and threatened to post the same on some pornographic website on the internet. Further, a link to the indiatimes club site having URL http://clubs.Indiatimes.com/clubs/myfirstchoice was sent to her and upon visiting the said site, it was found that the said morphed photograph had been indeed posted on the homepage of the said site and was viewable by the general public. Accordingly, a letter was written to indiatimes.com and the said morphed photograph was got removed from the homepage and the present RC was registered for investigation.
3. Investigation revealed that total 8 emails had been received by the complainant from 14.02.2005 to 24.02.2005. In all but one email IDs, the IP address of the sender was found to be 61.16.235.146, which resolved to M/s. Primus Telecommunications India Limited. It was found that the said IP address was a static internet connection allotted to M/s. Oswal Chemical and Fertilizer Limited, 2 nd and 7th floor, Antriksh Bhawan, KG Marg New Delhi. It was found that the complainant had also worked at the said M/s. Oswal Chemical and Fertilizer Limited from 14.01.1998 to 06.03.2002. The investigation zeroed down to the accused MG Suni, who had also worked at the said office of that company from 23.11.1997 till 11.03.2005 and was acquainted with the complainant. The complainant had sent two photographs of her marriage through email to few of her friends/colleagues, including the accused MG Suni. It was her face from one of these photographs, that had been used in the pornographic morphed photograph by the offender while posting it on the internet RC No. CYI/05E0005 P.S. CBI Page No. 3 of 45 and sending the same as attachment in the emails to the complainant. The computer of the accused MG Suni, who was working as Computer Assistant of the Chief Technical Advisor Sh. T. N. Jaggi, was checked in the presence of independent witnesses and the keywords [email protected], [email protected], [email protected] and [email protected] were found in the temporary internet files/folder and cookies of the said computer, which was found having access to the internet through LAN. During investigation and interrogation, the accused disclosed the passwords of all his six email IDs (two actual and genuine IDs and the four questioned IDs from which the emails had been sent), in the presence of independent witnesses, subsequent to which all his email accounts were accessed. In his account [email protected], various emails from [email protected] were found, confirming that he was a member or creator of the said club page. In the "briefcase" folder of the said email account, various files were found, including one file namely "pick.jpg", which was the same morphed photograph of the complainant which had been sent to her and also uploaded on the website. The inbox of [email protected] (genuine email of accused) contained the email dated 29.06.2004 from the complainant vide which she had sent her two photographs to him. Other pornographic contents and emails were found in the email accounts of the accused, after accessing them through the passwords disclosed by the accused. The accused was therefore booked in the present case. The seized CPU was sent to the CFSL and its report obtained, to the effect that the same was RC No. CYI/05E0005 P.S. CBI Page No. 4 of 45 untampered one, was capable of accessing the internet, and was containing the incriminating keywords in the temporary internet files / folder. After completion of investigation, chargesheet was filed in the court on 29.06.2005.
4. Cognizance of the offences was taken by the court and the accused was summoned. Based on the material on record, charge was framed against him for commission of offences punishable under section 506/507/509 IPC and section 67 of IT Act on 17.04.2007, to which he pleaded not guilty and claimed trial.
5. At the trial, prosecution examined ten witnesses in support of its case.
6. PW-1 Ms. SN [identity concealed] is the complainant in the present case, who deposed that in the year 2005, she was working with M/s. Pearl Academy of Fashion, Naraina, Delhi and had one e-mail ID [email protected]. She deposed about having received obscene emails on her ID from e-mail IDs [email protected], [email protected], [email protected] and [email protected] and narrated their contents, whereby she was threatened and was asked to respond, else her obscene photograph would be sent to her husband and also be published in the pornographic sites, and also uploaded on fucker's internet. She proved her complaint Ex. PW-1/A made to the CBI and attached the printout of indiatimes club homepage Ex. PW-1/C along with copy of her RC No. CYI/05E0005 P.S. CBI Page No. 5 of 45 photograph Ex. PW-1/B. FIR Ex. PW-1/D was registered on her complaint. She also handed over the print-outs of the e-mails and messages to the CBI Ex. PW-1/O, Ex. PW-1/P, Ex. PW-1/I and Ex. PW-1/N, Ex. PW-1/K, Ex. PW-1/Q, Ex. PW-1/F, Ex. PW-1/J, Ex. PW- 1/H, Ex. PW-1/L and Ex. PW-1/M, which were seized by the CBI vide seizure memo Ex. PW-1/E. She deposed about the contents of all these emails, about her obscene morphed photograph, threat to upload the same on sites and forwarding to her husband. When she visited the link of indiatimes club homepage as sent to her, she found that her morphed obscene photograph had been pasted there which could be viewed by general public. She further informed that before joining M/s. Pearl Academy, she had worked with M/s. Oswal Chemical and Fertilizers Ltd. from 1998-2001 and Mr. Prakash Kurup, Ms. Lata, Ms. Nagarajan and accused Mr. MG Suni were her colleagues. She further informed that she and accused, both had worked in the IT section of the said company for sometime. Accused was also from Kerala and they were also in touch after leaving her job from M/s. Oswal Chemical and Fertilizers Ltd. She further deposed that after her marriage, she had also sent her photographs with her husband on the ID of the accused [email protected]. During her cross- examination by the Ld. Defence Counsel, she stated that around 10 to 15 employees were working with her in the IT department in the office and approximately 50 terminals/computers were installed in the office connected to one main server. She accepted that the accused had never misbehaved with her during the tenure they worked together and had never made any indecent advances towards her. She accepted that RC No. CYI/05E0005 P.S. CBI Page No. 6 of 45 she had never thought that the obscene emails received by her had been sent by the accused. She was not aware if the terminal used by the accused was not exclusively being used by him. She could not reply to the technical questions as to if a server could give entire information from the log list as to when anyone logged in or logged out or about the passwords.
7. PW-5 Sh. Anshuman Chaturvedi was working with M/s. Primus Telecommunication India Pvt. Ltd since 1997 as network manager. He deposed about the letter Ex. PW-5/1 given to the CBI, informing about the identity of the user (M/s. Oswal Chemicals & Fertilizers Ltd.), to which IP Block 61.16.235.144/29, which was a static IP, was allocated. He also proved the letters dated 10.03.2005 and 26.04.2005. During cross-examination, he informed that they had given internet lease line connectivity, which remained online 24 hours, and did not require any login or logout. Upon specific question as to if computer network could be used remotely, he informed that it was possible if the software to this extent had been installed on the system or if the user is having the password access or if the computer is hacked by a hacker. When asked if the mail server could give the entire information including password, he informed that the information can be given only if the server is configured to maintain log. He accepted that the person using different computers can have access on the same IP address through the server.
8. PW-4 Sh. Pradeep Kumar Grover was working with NBCC RC No. CYI/05E0005 P.S. CBI Page No. 7 of 45 since 1981. PW-7 Gopal Dass Aggarwal was Senior Manager, Union Bank of India, Asif Ali Road Branch, New Delhi. PW-8 Sh. Devraj V. was posted as Inspector, Cyber Crime, Investigation Cell, CBI. These witnesses were part of the search conducted by the CBI on 11.03.2005 at the premises of M/s. Oswal Chemicals, Antariksh Bhawan, KG Marg, New Delhi where computer system was checked and one CPU having incriminating material was sealed and seized by the CBI. Search/seizure memo Ex. PW-4/1 was prepared. Accused was arrested vide memo Ex. PW-4/2 and his disclosure statement Ex. PW-4/3 was recorded, in which the accused disclosed the passwords of all his email IDs, including the four questioned IDs. The email accounts were accessed using the said passwords and print outs of the incriminating material were taken vide recovery memo Ex. PW-4/4. During cross-examination by the Ld. Defence Counsel, the witnesses deposed about the time of their reaching the CBI office, time of reaching the Oswal Office, the number of people in the search team, etc. Upon specific question as to if the other terminals connected to the same server could view an attachment and use the same if one sends an email to any other person, PW-8 informed that only an email account holder can open an email account, send email and view or download the email, and that no other person from other terminals connected to the server can access the emails, without the knowledge of the email account holder.
9. PW-2 Sh. Trebhawan Nath Jaggi deposed that in the year 2005, he was working as Adviser Technical with M/s. Oswal Chemical and RC No. CYI/05E0005 P.S. CBI Page No. 8 of 45 Fertilizers, where the accused was working with him as a Computer Assistant, who used to do all his computer jobs like typing, sending and receiving emails etc.. He deposed that the accused was in exclusive possession of the computer which was provided to him by the office and the said computer was also having internet connection. This witness identified the signatures of Mr. V.P. Saluja and Sh. Prem Chand on the documents Ex. PW-2/B and Ex. PW-2/C given to the CBI. The witness was cross-examined by Ld. Defence Counsel, during which he reiterated that the computer system remained in possession of the accused for official purpose. He however confirmed that no complaint against the accused was received except the present case.
10. PW-6 Sh. Shellel Bajaj was working with Times Internet Limited since 2002 who had handed over letter dated 05.05.2005 along with Annexures and one CD under his signatures. He had also submitted soft copy of the said annexures in a CD and print out Ex. PW-6/2 which contained the details of the all the activities undertaken under that ID which contained the list of e-mails contacted by mamootty. He deposed about activities logs including date, time and message and in annexures, he had furnished the IP addresses including the time stamp and date stamp. He informed that the details of the files, contents uploaded by the users along with URL had been provided to the CBI. The questioned photograph had been immediately removed by him upon request on 28.02.2005. This witness was cross-examined by Ld. Defence Counsel, wherein he RC No. CYI/05E0005 P.S. CBI Page No. 9 of 45 deposed that the date of uploading mentioned the date from 19.02.2002 to 22.04.2003.
11. PW-3 Sh. N.K. Aggarwal was the Senior Scientific Officer, Grade-I, CFSL, who proved the report dated 21.06.2005 Ex. PW-3/A prepared by him after examination of one hard disc. It was found that system was fully functional and undamaged and was capable of accessing internet with the use of hardware like LAN Card. He further deposed that during search, several files of MS word, MPG files, Mails, BMP files and text concerning to material relating to email IDs [email protected], [email protected], [email protected], [email protected], obscene material and other information had been retrieved from the hard disc. He provided CD under the seal of CFSL, to the CBI. This witness was cross-examined by Ld. Defence Counsel, during which it was found that the CD Ex. PW-3/B on record had already been broken while in court custody and its contents could not be seen. He however accepted that the server has log list and it can be checked and verified as to which terminal and at what point of time the same was logged in or logged out. He went on to accept that the server could give the entire information including the password. He however expressed his ignorance about the existence of any software by which it could be verified as to which site was opened, at what time and what was its password. He accepted that if someone sends an email along with an attachment to another person, then from another terminal connected to the same server, that attachment could be viewed, saved and further RC No. CYI/05E0005 P.S. CBI Page No. 10 of 45 used.
12. PW-10 Sh. Sumit Jain had worked with Times Internet from 1999 to 2006 as Chief Manager and looking after all IT operations. He gave the details and meaning of the technical terms used in the said sector, including email, creating an email account, logging in to the account, creation of email over indiatimes.com, account on a Club being community of people sharing photographs and documents on indiatimes.com, active log, time stamp, IP address, etc. He informed that the server of indiatimes was located at Prabhadevi, VSNL, Mumbai and all the data was stored there. He deposed that "pick.jpg"
had been uploaded by username mamootty on the club homepage on 23.02.2005, which that they had removed after receipt of request and after creating a copy of that picture for records which was later renamed as "pick28022002.jpg", and moved it to deactive folder as per their standard procedure using the FTP software. During cross- examination, he stated that servers and emails were completely protected by security procedures. Upon specific questions as to if on the basis of log list, it could be checked and verified from the server as to from which terminal and when the same was logged in or logged out, he stated that the server could give all the information but not the passwords which are encrypted in the server. He went on to accept that one can know which site was opened, but not the password. He denied that if someone sends an email with an attachment, then by using some other terminal connected with the same server, the attachment could be viewed saved and further used by others. Upon RC No. CYI/05E0005 P.S. CBI Page No. 11 of 45 specific question as to if the server could store passwords or usernames in the network, he stated that it could, but it could not be used further because passwords were encrypted.
13. PW-9 Sh. Vivek Dutt was posted as DSP, Cyber Crime Cell, CBI, New Delhi, to whom the investigation of this case was marked after registration of RC Ex. PW-1/D on the complaint dated 28.02.2005 of PW-1. During investigation, he collected documents vide production cum receipt memo dated 09.03.2005 Ex. PW-1/E from the complainant. The letter dated 10.03.2005 was received from Primus Telecommunications India Limited informing about the IP address through which emails had been sent to the complainant. As per Ex. PW-5/2, the IP address had been allotted to Oswal Chemicals and Fertilizers Limited. A search was conducted on 11.03.2005 at the office of M/s. Oswal Chemical & Fertilizers Limited in the presence of three independent witnesses, during which, one CPU was recovered and search list Ex. PW-4/1 was prepared. The accused was arrested vide memo Ex. PW-4/2 who voluntarily made disclosure statement Ex. PW-4/3, wherein he disclosed about his various emails IDs which he was using at that time and their respective passwords and also about the facts regarding the photograph which was with the file name "pick.jpg" that had been saved in the "briefcase" folder of his email ID [email protected], which was the morphed photograph having the face of complainant on a pornographic image. Incriminating material was was recovered in the presence of independent witnesses. After completion of the investigation, he filed RC No. CYI/05E0005 P.S. CBI Page No. 12 of 45 the charge-sheet in the Court. This witness was duly cross-examined by Ld. Defence Counsel, wherein he stated that the CPU from which the photograph had been sent, had been seized by him and it was found that it was being exclusively used by the accused. He had recorded the statements of IT experts and other witnesses during the course of investigation.
14. Statement of the accused under section 313 CrPC was recorded on 01.07.2017, wherein he denied the allegations and pleaded innocence. He admitted that he had been working in M/s. Oswal Chemical and Fertilizers Ltd. as Computer Assistant/operator with PW-2 Sh. TN Jaggi, but claimed that the computer was not in his exclusive possession and was being used by other junior staff/assistants/engineers of PW-2. He denied creating the four questioned email IDs or creating a club on the indiatimes.com site, or creating a morphed photograph of the complainant, or sending threatening and obscene messages to her using the photograph or uploading the same on the internet. He denied the investigative steps, though claimed that he was in his office and accompanied the CBI team to the headquarters when he was told that he had been arrested. However, he chose not to lead any evidence in his defence.
15. It is in these circumstances that the Ld. APP for CBI has contended that the prosecution has been able to prove its case against the accused beyond reasonable doubt, as all the witnesses have supported its case and there is no contradiction in their evidence. Ld. RC No. CYI/05E0005 P.S. CBI Page No. 13 of 45 APP has pointed out that the CBI was able to locate the office on the basis of the static IP address, through which the emails in question had been sent. The CBI was albe to locate the office where the complainant used to work earlier. The investigation went on the right track when it was found that the computer of the accused had been used to send the said emails, as the keywords were found in the temporary internet files of his computer. The said computer was seized and on forensic examination by the CFSL, this fact was confirmed by the forensic experts. Further, the accused disclosed the passwords of his email IDs, on the basis of which all these emails were accessed and it was confirmed that it was the accused who had sent the incriminating content to the complainant and had uploaded the same on the internet. Though he had deleted the substantial content sent by him, yet the actual photograph used by him as sent to him by the complainant earlier was found in his email, the morphed photograph which had been created by him and saved in the 'briefcase' folder of the questioned email ID [email protected] had been recovered, which leaves nothing to doubt. It is submitted that the indiatimes.com has confirmed that the home page was created by the person having this email ID, which is none other than the accused and various emails from the indiatimes club site were also found in the said email account along with other pornographic content. It is thus submitted that the offence stands proved against the accused.
16. On the other hand, Ld. Counsel for the accused has questioned RC No. CYI/05E0005 P.S. CBI Page No. 14 of 45 the entire case and has submitted that the accused deserves to be acquitted. Written submissions/arguments have also been placed on record in support. It is submitted that as per section 88A of the IT Act, the court shall not make any presumption as to the person by whom an electronic message was sent. It is pointed out that the complainant PW-1 accepted that the accused had never misbehaved with her or made any indecent advances towards her. He questioned the deposition of PW-3 on the ground that he had not been imparted computer education in the year 1975 when he had completed his course. He has pointed towards the variations in the timings of reaching of the witnesses at the CBI office, of reaching at the office of Oswal, of conducting the search proceedings, of signing the documents as deposed by various witnesses who claim themselves to be a part of the search team. It is argued that the prosecution witnesses cannot be called as computer experts as they did not have even the basic knowledge of computers. It is then submitted that two witnesses mentioned in the list of witnesses have not been examined and the other witnesses were interested and 'arranged witnesses' of the CBI and were not 'natural witnesses' available at the spot who could be relied upon. It is submitted that the prosecution has failed to collect the basic information about the identities of the originators of the email IDs from the internet service providers and to obtain the details of IP addresses from which they were originated or log lists obtained from the servers to ascertain the time and places of login and logout. No attendance registers had been seized from the office to ascertain who had worked the even on Sundays when the emails were allegedly RC No. CYI/05E0005 P.S. CBI Page No. 15 of 45 sent. It is further submitted that as per PW-10, the photograph had been uploaded even prior to the date when the club page was created, which was not probable. It is submitted that the computer having IP address 203.122.31.58 has never been recovered, nor any information about its owner, user or location has been placed on record without any explanation. Various other IP addresses have been mentioned, qua which the prosecution did not obtain the details. It is submitted that the complainant had not even named the accused either as a suspect or the originator of the offensive photograph. It is further pointed out that the though the complaint was made on 28.02.2005, the RC was registered only on 09.03.2005, which delay has never been explained by the CBI. The FSL analysis has been questioned on the ground that the same is incomplete as it did not disclose what techniques had been applied to look for the evidence. He pointed out that the CD given to the IO by the FSL had been found broken before the witness could be examined and the said witness never saw its contents while deposing in the court. It is argued that no details of the use of forensic tools or technicalities about recovering the deleted contents have been disclosed in the CFSL report. No statement of server admin was recorded despite availability. It is then submitted that the accused was not an exclusive user of the computer system in the present case and as the computers were connected with the main server, any person through any other computer could have accessed his computer and even viewed and altered the emails with attachments. It is similarly submitted that the prosecution has not disclosed how a deleted photograph had been recovered and how such a photograph was RC No. CYI/05E0005 P.S. CBI Page No. 16 of 45 uploaded on a day prior to creation of the club itself. It is submitted that the witnesses had signed the documents while the accused was in CBI custody, which should not be relied upon. The investigation has been questioned on the ground that the delay in registration of the case has not been explained. Relying on various case law, it is submitted that the standard of proof required to convict a person is very high and the evidence in the present case does not point towards the guilt of the accused conclusively.
17. I have heard the arguments advanced by the Ld. APP for the CBI as well as the Ld. Defence Counsel for the accused, and have carefully perused the material available on record, including the written arguments furnished by the defence.
18. Like in most criminal cases, the prosecution is required to establish two facets of the case, (i) if any offence has been committed and what, and (ii) who has committed that offence and whether the accused is the offender.
19. As far as commission of the offence in question is concerned, the prosecution case is based on the evidence of the complainant PW-1 who informed that she had been receiving several obscene and threatening emails in her email account. At the time of filing the complaint, she was not aware who was the offender, as she never named anyone or even suspected anyone. The RC was therefore registered against unknown persons.
RC No. CYI/05E0005 P.S. CBI Page No. 17 of 4520. The so-called delay in registration of FIR would be immaterial in the present case, primarily because no person has been named in the FIR and no one was suspected and therefore, it cannot be said that there was any scope of manipulation or false implication of accused during the intervening period. It is a common knowledge that the CBI conducts a preliminary inquiry upon receipt of the complaint and if it finds some justification, a regular case (RC) is registered for investigation subsequently. Irrespective of that, the court is primarily concerned with the complaint made to the CBI by the complainant and not the delay caused thereafter by the investigating agency in converting the said complaint into RC. In any case, it was only the IO PW-9 who could have explained the said 'delay' in registration of the RC, if it could be so called. But no explanation in this regard was sought from the IO during his cross-examination. When the accused himself never asked any such explanation from him during his cross- examination when he had all the opportunity to do so, he cannot just assert at the stage of final arguments that such a delay remained 'unexplained'. Nothing substantial happened between receipt of the complainant or registration of RC which would have affected the accused in any manner or caused any prejudice to him. Till that time, no one was even aware as to from which source or computer or IP address the incriminating emails or obscene material originated.
21. It may be understood that the accused has never disputed the factum of commission of the offence as such. It is not in dispute that RC No. CYI/05E0005 P.S. CBI Page No. 18 of 45 the complainant had received obscene and threatening emails in her email account, addressed specifically to her by name. The accused has never denied that the complainant, who was already known to her, was having email account [email protected]. It is not a case of junk mail or spam emails which might have been received by the complainant in ordinary course. It is not in dispute that during the course of investigation, after the receipt of the complaint, the printouts of all the obscene and threatening emails were handed over to the CBI by the complainant which were seized vide recovery memo Ex. PW- 1/E. The complainant during her evidence proved all the printouts given by her to the IO including the specific emails received from the four email accounts, [email protected], [email protected], [email protected] and [email protected]. It is not a case of the accused that no such threatening or obscene emails had been received by the complainant. No such suggestion was given to the complainant during her cross-examination nor any such stand was taken by the accused in his statement under section 313 CrPC. The defence of the accused has been primarily that he was not in exclusive use of the computer in question and such emails might have been sent by some other person.
22. A perusal of the said emails would show that the offender already knew the complainant and her identity, that he was having some photograph of the complainant which he had used to create a morphed photograph whereby the face of the complainant was superimposed on an obscene photograph obtained from some RC No. CYI/05E0005 P.S. CBI Page No. 19 of 45 pornographic site. The language used in the emails clearly show that the offender was a sexually pervert person who had sent the emails seeking sexual favour from the complainant in a very indecent and filthy manner. Sexual advances were made in a very derogatory the language and in a threatening tone. The victim was threatened that her photograph would be sent to her husband and would also be uploaded on the internet in case of her refusal. In one such email, link to the homepage of the club 'myfirstchoice' created on indiatimes website was sent to her and upon opening the said link, it was found that the offender had actually uploaded the said morphed obscene photograph on the homepage of the said site, which was visible to all (at least to the members of the said club and there was no restriction on the membership of the said club on the public platform).
23. A perusal of the material collected at that time would show the IP addresses through which the emails had been sent. It was found that the said emails had been sent through four email accounts, that is [email protected], [email protected], [email protected] and [email protected]. It was also found that the photograph uploaded with the email as an attachment was having the name "pick.jpg".
24. No disputes have been raised by the accused on this factual position. It is not the case of the accused that no such emails had been received by the complainant or that such a story has been falsely cooked up by her to implicate some innocent person or to take some RC No. CYI/05E0005 P.S. CBI Page No. 20 of 45 revenge or due to any previous enmity. There is no allegation that the complainant has falsely implicated the accused, primarily because she never named the accused nor she even suspected the accused to be the offender.
25. It is thus clear that the material in question is lascivious and appeals to the prurient interest which tends to deprave and corrupt the persons who are likely to read, see or hear the matter contained or embodied in it, which was published, transmitted or caused to be so published or transmitted in electronic form. The emails are certainly in electronic form. Any person reading the emails and looking at the morphed obscene picture of the complainant, would tend to deprave and corrupt. Since the indiatimes club page was a public forum and any person could have been a member thereof and able to view such the picture, it is clear that the said picture had been published and transmitted for being viewed by anyone on a public platform. Therefore, the offence under section 67 of IT Act stood committed.
26. Similarly, by threatening to send such morphed photograph of the complainant to her husband and to upload the same on the internet in public domain, an offence under section 506 IPC would be made out. As per section 503 IPC, whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that RC No. CYI/05E0005 P.S. CBI Page No. 21 of 45 person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. In the present case, the offender had threatened the complainant of dire consequences of uploading her morphed and obscene photograph on the internet and to send that photograph to her husband, in case she refused sexual advances, which certainly caused alarm to that person and at the cost of her reputation. Therefore, an offence under section 506 IPC stood committed.
27. Further, since such criminal intimidation was by way of an anonymous communication, having taken precaution to conceal the name or abode of the person from whom the threat came, offence under section 507 IPC stood committed. The offender never disclosed his name and identity in the emails sent through the four different email accounts which were created specifically for this purpose by concealing the true identity of the creator.
28. Again, the language used in the emails was certainly intending to insult the modesty of a woman (complainant herein). The words and photographs mentioned in the emails were clearly intending that such words shall be read and the object/photograph shall be seen by the complainant woman so as to insult her modesty. Such obscene and pornographic material, which had been suitably modified and morphed by superimposing her face on a pornographic picture, would be sufficient to make out an offence under section 509 IPC.
RC No. CYI/05E0005 P.S. CBI Page No. 22 of 4529. It is therefore established that offences under section 67 of the Information Technology Act and those under section 506/507/509 IPC had been committed.
30. Now the question is as to who is the offender and whether the commission of the offence can be attributed to the accused.
31. To establish this fact, the prosecution has relied upon the investigative steps as carried out by PW-10 being the investigating officer. The investigating steps to locate the identity of the accused essentially involved three steps only. The first step was to ascertain the allottee of the IP address of the computer system through which the internet had been accessed for sending the emails. The second step was to ascertain the location of the exact computer system through which the emails had been sent from that IP address, by contacting the service provider. Once these two steps were complete, it was for the IO to ascertain to locate the offender.
32. It would be noticed that most of the emails originated from a single IP address, that is, 61.16.235.144. This fact has never been disputed by the accused during the cross-examination of any prosecution witness. Irrespective of the fact that there existed some other IP addresses as well, that would not affect the prosecution case in any manner till the time the investigation was on the right track. The IO would have required to ascertain the details and locations of all the IP addresses involved, if he had reason to believe that several RC No. CYI/05E0005 P.S. CBI Page No. 23 of 45 other persons were involved or if the investigation did not reach at any definite conclusions otherwise. Even if it is assumed that the investigation remained incomplete on that point as the other IP addresses were not located or identified, that would not nullify the identification of location of the most important IP address.
33. It may be noted that the said IP address was a static IP address, not a dynamic one. A static IP address never changes with date and time, as against a dynamic IP address which keeps on changing with date and time and with every login and logout.
34. The said IP address led the investigating agency to M/s. Primus Telecommunications Private Limited being the internet service provider. The evidence of PW-5 and the letter proved by him, the genuineness of which had never been disputed even by the accused, it has been established that this IP address had been allotted to M/s. Oswal Chemicals and Fertilizers Limited.
35. When the said location was traced, it was for the IO to ascertain as to which of the several computer systems installed there, that had access to the internet, had been used. As per the statement of the complainant, who had worked earlier in that office, she had sent her marriage photographs to some of her friends/colleagues and the morphed photograph in question had been created by using the face of the complainant from that original marriage photograph. For that matter, a bare perusal of the original photograph, copy of which was RC No. CYI/05E0005 P.S. CBI Page No. 24 of 45 seized by the CBI from the complainant, and comparing the same with the morphed photograph, would make it clear even to the naked eyes that the face of the complainant appearing in the original photograph has been superimposed on the pornographic photograph. The complainant informed about the names of her friends/colleagues to whom she had sent her photographs. The said names included the name of accused M. G. Suni as well. As the complainant had earlier worked in the said company where the accused was also working, the IO was easily able to zero down to the accused and to the computer being used by him.
36. Accordingly, a search team was constituted involving PW-4, PW-7, PW-8, PW-10 and two persons from Oswal company as well.
37. These four witnesses deposed about joining the search team and conducting search of the computer of the accused at his office, about recovery of incriminating material, about seizure of the printouts of such incriminating material in the presence of the accused, preparation of the recovery memo, recording of disclosure statement of the accused and accessing emails of the accused on the basis of the passwords he disclosed.
38. The accused has questioned the veracity of these witnesses on the ground that they were "arranged witnesses" and not "natural witnesses". Ld. Defence Counsel has pointed out that the two witnesses who were available at the spot being the employees of the RC No. CYI/05E0005 P.S. CBI Page No. 25 of 45 Oswal company, have not been examined by the prosecution, for which an adverse inference should be drawn.
39. However, I do not find any reason to doubt the credibility of the witnesses on the ground that they were "arranged witnesses". There is no rule of law that requires the court to view the evidence of any witness with any suspicion, be it the complainant or his relative or his neighbour or his colleague or a police official or any other witness. The credibility and truthfulness of a witness has to be ascertained on the basis of his cross-examination and if the court has no reason to discard the testimony of witness on any count whatsoever, he cannot be termed as a "fake witness" or an "interested witness" merely on some hypothetical assumption. The court does not find itself in agreement to the stand of the accused that these witnesses were "arranged witnesses". Had these witnesses not been arranged, the accused would have taken a stand that no "independent public person"
had been joined by the CBI as witnesses at the time of constitution of the search team.
40. A perusal of the testimony of PW-4 and PW-7 would show that these witnesses were totally independent and had no connection whatsoever with each other, with the investigating officer, with the accused or with the company in which the accused was working, or even with the present case. Both these witnesses deposed during their cross-examination that they did not know any other person in the search team and had never participated in any other search of similar RC No. CYI/05E0005 P.S. CBI Page No. 26 of 45 nature. This fact has never been disputed by the accused. Therefore, these witnesses can safely be said to be 'independent public witnesses' who had been fairly joined by the IO to be a part of search team. They had no motive to depose falsely against the accused to implicate him in any false case without any motive, reason, or enmity. The court has no reason to disbelieve them or to discard their testimony.
41. Similar is the position with respect to the CBI officials. There is no rule of law that requires the evidence of police or CBI officials to be viewed with any suspicion at the beginning itself. The yardstick to check the credibility of such witnesses is the same as in case of any other witness and the evidence of police or CBI officials cannot be brushed aside merely because they happen to be in service of police or CBI. Therefore, the court has no reason to disbelieve even the version of PW-8 and the investigating officer PW-10 with respect to the search and seizure proceedings.
42. It is not a case that the two witnesses who were working in the Oswal office, who had also been joined in the search proceedings, were deliberately not examined by the CBI. Record shows that a number of attempts were made by the CBI and the court to secure the presence of these witnesses, but they could not be served and their present whereabouts were not known. In such situation, no lapse can be attributed to the CBI and no adverse inference can be drawn, particularly when other witnesses have corroborated each other and have deposed about the search proceedings. It is the quality of RC No. CYI/05E0005 P.S. CBI Page No. 27 of 45 witnesses that determines the fate of the case and not their quantity. If a witness is truthful and credible, his testimony deserves to be considered, even if there is no other person to corroborate the same.
43. It may also be noted that some minor contradictions, exaggerations, omissions and variations to creep in the testimony of the witnesses with the passage of time, which is quite natural. The court cannot expect the witnesses to remember and recall all the minute details of the incident with mathematical accuracy and scientific precision. Unless such variations and contradictions go to the root of the matter, they have to be ignored, because human memory is liable to fade with the passage of time. Thus, when the witnesses examined after ten years of the incident, they cannot be expected to tell the exact timings and exact status of the search proceedings, of which they were a part long back.
44. Therefore, when there are slight variations in the timings narrated by the witnesses of the search team, as to when they had reached at the CBI office, when they had started from the CBI office, when they had reached the Oswal office, till what time the search continued, when the disclosure statement was recorded, or as to how many computer systems were there and whether all the systems had been checked etc., that would hardly make any difference as no such variation would go to the root of the matter. The evidence of all these witnesses is quite corroborative in nature on material particulars, with certain natural and expected variations. Irrespective of the number of RC No. CYI/05E0005 P.S. CBI Page No. 28 of 45 computer systems there or the number of computer systems checked by the IO, the fact remains that the computer system of the accused had been checked and its CPU seized after taking printouts of incriminating material, in the presence of these witnesses.
45. The court also is not moved by the argument of the Ld. Defence Counsel that the witnesses in the search team did not have even basic knowledge of computers. The court may not even expect the knowledge of the computers from the public witnesses or other members of the search team, as that would have been a subject matter of computer experts at a subsequent stage. After checking the computer and finding the incriminating material therein, the CPU was duly seized and sent to the forensic lab for detailed and technical examination.
46. It may be noted that even this fact has not been disputed by the accused. It is nowhere his case that no such computer system had been checked and seized, or that some other computer system had been checked, or that the computer of some other place had been planted on him, or that some other incriminating material had been recovered from some other computer system and imputed on him. It is not his case that the computer was not checked in his presence or that the CPU was not seized by the CBI, or that so many witnesses were deposing falsely to implicate against him. These witnesses had no reason or motive to depose against the accused, who was not even previously known to them. For that matter, the accused has not even RC No. CYI/05E0005 P.S. CBI Page No. 29 of 45 disputed the fact that the incriminating material had been recovered from the hard disk of the said computer system.
47. The genuineness and authenticity of this hard disk was verified by the CFSL. PW-3 from the CFSL duly established that the said computer system was capable of internet access and the keywords related to [email protected], [email protected], [email protected] and [email protected] were also found in the temporary internet files / folder of the said hard disk. It is not the case of the accused that such temporary files had been falsely created or put by some miscreant unauthorisedly to falsely implicate him. It would not lie in the mouth of the accused to claim at the stage the final arguments that the CFSL report is insufficient, in as much as it does not disclose what all software tools had been used by it recover the deleted files or to ascertain the details of temporary internet files. When the expert witness was examined in the court, the accused had all the opportunity to ask all the facts, details and clarifications from him, but if he failed to do so at the relevant time, he cannot take benefit of his own wrong and to now claim that the report is insufficient. The report on record is only a 'final opinion' given by the technical experts and all other details including the tools used, calculations made, softwares used etc. are maintained in the CFSL office, which could be called if required through a particular witness by the accused. But no such attempt was made by the accused. PW-3 gave all satisfactory answers of the Ld. Defence Counsel during his cross-examination and the court has no reason to disbelieve him or to RC No. CYI/05E0005 P.S. CBI Page No. 30 of 45 discard his testimony. The fact that the computer education was not imparted to him in the year 1975 when he completed the course on forensic science would not mean that he is not an expert so as to examine the issues in question. There is nothing to show that he was not competent to analyse the CPU in question or to give report.
48. As per PW-2, the said computer system used to remain in exclusive possession of the accused. This fact has been questioned and denied by the accused, on the ground that all the computer systems in the said company were connected to a single server, as also confirmed even by the complainant PW-1, and the contents of any such computer can be accessed, used, modified and transferred by any other computer system connected to that common server.
49. This is precisely the prime defence of the accused in the present case. According to the Ld. Defence Counsel, the prosecution has not been able to establish that it was only the accused and that it could not have been any person other than the accused, who might have used the computer in question, for sending the emails containing the obscene and threatening content. The main limb of argument on this point is based on the fact that the computer system, as seized by the IO, was not an individual or distinct system having one individual IP address. Instead, it was a network or an interconnection of as many as fifty different computer systems which were connected to a single server, which was having the same IP address in question. It is thus argued that any one of the said fifty computers could have used the same IP RC No. CYI/05E0005 P.S. CBI Page No. 31 of 45 address and uploaded the same photograph and sent the said emails to any person, while saving, altering or modifying any such file in the computer system of the accused.
50. Arguing his case on this basis, ld. Defence Counsel has put forth various arguments. It is his stand that there exists a software through which it is possible to ascertain as to when a particular system was logged in or logged out over the internet, what sites had been visited, what contents were uploaded or downloaded, and what were the passwords. It is argued that these facts have not been ascertained by the investigating agency thoroughly, which makes the prosecution case doubtful. It is contended that the recovery of the incriminating material from the computer system which was being used by the accused as well, should not be attributed exclusively to the accused, particularly when no investigation has been done with respect to other computer systems available at the spot. He has pointed out that as per the data on record, emails had been sent even on a Sunday and it is quite improbable that the accused was working on a Sunday. Similar questions with respect to the possibility of ascertaining the login and logout details from the server or existence of software to ascertain the details of site visits and their passwords, were asked from various witnesses. However, the ordinary witnesses could not answer such questions and the technical persons express their ignorance about the existence of any such software. PW-5 deposed that saving of such login and logout details or accessibility of system by the other systems through a common server would depend on the configuration of the RC No. CYI/05E0005 P.S. CBI Page No. 32 of 45 systems and network. The witnesses however denied existence of any software by which passwords could be ascertained or if any could access the emails and attachments sent by some person to a third person through a different computer system, though connected to a common server.
51. Well, the court does not find merit in any of such submissions, arguments and contentions. As pointed out by the internet service provider PW-5, there was no need to login or logout in the internet lease line provided to the Oswal company as it was a 24 hour online service. Therefore, there was no question of ascertaining the details or logs of logging in and logging out from any internet activity. Again, except bald averments and questioning by the Ld, Defence Counsel, there is no evidence at all to establish that any such software exists through which it could be ascertained as to what passwords were used by any user. Of course, login details, activity logs, site visits, the contents uploaded or downloaded, etc. can be generated by technical experts, which have been in fact generated even in the present case, on the basis of which the accused could be identified, but it would be too much to say that even the passwords could be ascertained through any such software. No such software has been brought to the notice of the court. No technical expert has been examined by the accused in defence to establish this fact. If this fact is to be believed blindly, it would mean that the entire banking system or defence system or government establishments or commercial systems based on electronic mailing systems, would simply collapse, as anyone would be free to RC No. CYI/05E0005 P.S. CBI Page No. 33 of 45 use that software so easily and to send emails from the accounts of some other person by ascertaining passwords. But it is not so the situation. Passwords are duly protected and encrypted which cannot be used by any person other than the account holder, except in cases of hacking. Clarification in this regard has been given by the technical expert PW-10 in the present case, who stated that such details can certainly be ascertained, except the passwords which remain in encrypted form and no other person can ascertain the same. For that matter, it may be noted that one does not need any password to visit any site, particularly the homepage. Passwords are required to login to some distinct account on that website.
52. Now, it is nowhere the case of the accused that his email accounts had been hacked by anyone, nor any such stand has been taken at the trial by the accused. Rather his case has been that the emails accounts in question did not belong to him at all. Therefore, irrespective of the fact as to which terminal was used, at what point of time, when was the system logged in or logged out to access the internet, that would be immaterial so far as the present case is concerned. Even if it is assumed that it was possible for any other user of any other terminal/computer connected to the main server of the company to have access to the files and folders of the computer that remained in possession of the accused, it would not lead to conclusion that the accused did not do anything or that the offence was committed by any third person only. The accused has not led any evidence to show if any such third person was involved. No technical RC No. CYI/05E0005 P.S. CBI Page No. 34 of 45 expert to this extent has been examined in defence. Mere hypothetical assumptions and vague averments or suggestions would not be taken as proof of existence of any fact. The accused is required to lead positive evidence to establish his defence. This is primarily in view of the fact that PW-2 categorically stated that the computer in question remained in exclusive possession of the accused and even he (PW-2) did not use the same. There is nothing to assume that no person would have worked on a Sunday, as being alleged. There is nothing to show that any attendance record as such was being maintained at the office of the company which should have been seized by the CBI. If such record was so favourable to the accused, nothing had stopped him to summon and prove such record in his defence. But no such attempt was made, which shows that such a defence has been taken in a casual manner only.
53. All said and done, all the above investigative steps and the contentions of the accused in pointing out some 'infirmities' therein, would all fall in dim light by the single most important fact established by the prosecution. The said fact is the accused making a disclosure statement, whereby he gave the passwords of his six email IDs, including the two actual IDs which were in public domain and the four email IDs which are questionable.
54. It may be noted that as many as four witnesses (PW-4, PW-7, PW-8 and PW-10) have categorically deposed about the disclosure statement made by the accused in their presence and also bearing his RC No. CYI/05E0005 P.S. CBI Page No. 35 of 45 signatures. The disclosure statement Ex. PW-4/3 has been duly approved by all these witnesses. It may be noted that the accused has nowhere disputed the said fact. Except putting a suggestion to PW-8 that no such disclosure statement had been made by him, which he categorically denied, no such suggestion was given to any other prosecution witness to the effect that no such disclosure statement had been made by him or claiming that the passwords of the six email IDs had not been disclosed by him.
55. Such a disclosure statement would be governed by section 25 to 27 of the Indian Evidence Act, assuming that the said statement was given while the accused was in the custody of the CBI. It may be noted that to make such a disclosure statement admissible, there has to be a discovery of fact which was not in the prior knowledge of the police/CBI. It is not recovery of any article but a discovery of a new fact in consequence of such a disclosure statement of an accused that makes such a statement admissible in evidence.
56. In the present case, the accused disclosed the passwords of the six email IDs as under:
[email protected] - anjanabindu [email protected] - Gayatri [email protected] - sexysita [email protected] - janardhan [email protected] - 123456 [email protected] - sexysita RC No. CYI/05E0005 P.S. CBI Page No. 36 of 45
57. The first two email IDs are the actual and genuine IDs of the accused. The email dated 29.06.2004 sent by the complainant to the accused with two photographs of her marriage, was found in the inbox of the email [email protected]. The latter four emails are the IDs created by the accused to commit the offence. The disclosure statement Ex. PW-4/3 shows the passwords of all the six email IDs. The same password "sexysita" was used by the accused in two email IDs.
58. It has come on record, and not even disputed by the accused at any stage of the trial, that the investigating officer had accessed all these email accounts in the office of the accused itself, by using the said passwords as disclosed by him. The relevant contents of material in the 'inbox' and the 'briefcase' folder of these emails were ascertained, their printouts were taken at the spot itself in the presence of independent witnesses and were seized vide memo Ex. PW-4/4. It is nowhere the case of the accused that the said email accounts were not accessed by the CBI using the passwords disclosed by him, or alleging that these passwords had been obtained by the CBI through any other source or that some third person had disclosed these passwords to the CBI. It does not appeal to the senses that the CBI was already aware of all these passwords and they mentioned these passwords under the name of the accused in the presence of the accused, independent public witnesses, CBI officials and even the officials of the company where the accused was working. No such RC No. CYI/05E0005 P.S. CBI Page No. 37 of 45 stand was taken by the accused during the course of trial or during the course of the cross-examination of any witness or even in his statement under section 313 CrPC. It is nowhere the case of the accused that he had been threatened or pressurized or forced to sign any such disclosure statement or recovery memo by any CBI or official.
59. Now, once the CBI is able to login to all the email accounts through which the questioned emails had been sent to the complainant, by using the passwords disclosed by the accused, nothing further remains to doubt. The court can safely presume that every user of an email account is its exclusive user. If a person is having the username and password of any email or other account, such a person can safely be said to be its exclusive user, unless there is something to establish anything to the contrary. As already observed, it is nowhere the case of the accused that all these email accounts had been hacked by some other person. He has rather denied himself to be the owner or creator of these email accounts. If that was the position, it is not understood how the accused was well aware of the passwords of all these email accounts, using which the CBI officials were able to login to these IDs. In the absence of any material to conclude anything to the contrary, it would be sufficient for the court to conclude that since the accused had disclosed the passwords of all the incriminating email accounts, and the CBI officials were able to log in to all such accounts and also to collect the relevant incriminating material therefrom, it was only the accused who could have sent the emails to the RC No. CYI/05E0005 P.S. CBI Page No. 38 of 45 complainant. There is nothing to show, nor there is any stand by the accused, to the effect that some unknown person had hacked into his account and sent emails to the complainant from his account. The accused in his statement under section 313 CrPC denied that the said email accounts belonged to him, which stand is apparently false in view of the fact that he was well aware of the passwords of all these accounts.
60. When the CBI officials accessed the email accounts in question, the incriminating material was also found therein. It was found that in the actual and genuine email ID of the accused [email protected], an email had been received from the complainant whereby she had sent two photographs of her marriage in good faith. It was then found that in the email account of [email protected], there were several emails from clubs.indiatimes.com under the head 'myfirstchoice', showing that the accused was a member or creator of that club. Various pornographic content was also found showing that the accused was accessing such content. Most importantly, the morphed obscene photograph, that had been created by using the actual photograph of the complainant, was found in the "briefcase" folder of this account belonging to the accused. The said photograph was also retrieved with the same name "pick.jpg", which was used to upload the photograph and sending it as attachment with the emails. Though the actual emails had already been deleted by the accused being the account user, such material in his email account would conclusively establish that it was he who had RC No. CYI/05E0005 P.S. CBI Page No. 39 of 45 sent the said emails to the complainant. There is nothing to show or even to assume that some other person had any access to any such email which he might have used to commit the offence. With such recovery of incriminating material and the discovery of new facts, which were not and could not have been in the prior notice of the police or CBI, would make the disclosure statement of the accused admissible in evidence and rather the strongest incriminating evidence against him.
61. Section 88A of the IT Act, as relied upon by the accused, pertains to a different area altogether. It only provides a presumption that an electronic message forwarded by the originator corresponds with the message sent into his computer for transmission, but the court shall not make any presumption as to the person by whom such message sent. In the present case, no such presumption is being made by the court. It is rather a positive and very incriminating fact which has been established by the prosecution that the accused was aware of the passwords of all the incriminating email IDs through which the obscene and threatening emails had been sent. Password of an account is only withing the personal knowledge of the account user. If the accused was not the creator or originator of these email accounts and had no concern whatsoever with these accounts, there is no reason how he was aware of the said passwords. There was no time gap in the disclosure statements and accessing of the email accounts so as to given any opportunity to the CBI to manipulate the things. The accounts were immediately accessed using those passwords at the RC No. CYI/05E0005 P.S. CBI Page No. 40 of 45 office of the accused only and in the presence of many other witnesses, which even the accused has never denied. Therefore, such disclosure statement leading to such discovery of incriminating facts, would be sufficient to establish that it was none other than the accused who had sent the incriminating emails to the complainant.
62. Once these facts are established, all the previous investigative steps would become irrelevant, primarily because those steps were only to identify the offender and to locate him. Once the accused has been located and the CBI was able to ascertain the passwords of emails through the accused, nothing further is required to establish the identity of the offender. Once it is established beyond reasonable doubt that the emails in question belonged to the accused, the court need not even go into the aspects as to which terminal had been used by him, which office had been used by him, when and from where the internet was accessed by him, when did he logged in or logged out, whether it was a Sunday or any other day, whether he ever misbehaved with the complainant or not, whether he ever made any indecent advances towards her or not, whether the computer/CPU was rightly seized, whether the witnesses were not independent witnesses, whether there was any deficiency in the investigative steps or not, etc. Even if it is assumed that the IO had not correctly or properly ascertained the details of the IP addresses, or omitted to ascertain the details of other IP addresses, or that there were fifty computers linked through a common server in the office of the accused, or that the accused was not in exclusive use or possession of the computer, or RC No. CYI/05E0005 P.S. CBI Page No. 41 of 45 that any third person had any access to the computer of the accused, or that the computer of the accused was not even used by the accused to create any such morphed photograph, that would only hit at the investigative steps through which the accused was identified. But none of these claimed 'deficiencies' would explain how the accused was aware of the passwords of the email IDs through which the emails had been sent. It is established beyond doubt that these particular emails had been used by the accused to send the incriminating material to the complainant. The presence of the morphed pick with the same particular name by which it had been uploaded and attached with the email, in the "briefcase" folder of his email ID and the presence of pornographic content in the said emails would establish that these emails had been actually used to send this material to the complainant as alleged by her. As the accused was aware of the passwords of all these emails, and there is nothing to suggest that he was not the exclusive use of these email accounts (as against the computer systems which could have been used by many persons in the office), it can be safely said that it was the accused only who had sent these emails to the complainant.
63. The other stands raised by the accused and his defence, have no merit whatsoever. It cannot be said that the witnesses lacked even the basic knowledge of the computers, as alleged by the accused who has gone ahead to call them 'ignorants'. According to the accused, CPU is the abbreviation of a chip called central processing unit, which is tiny enough to be fitted inside the motherboard of a computer system. No RC No. CYI/05E0005 P.S. CBI Page No. 42 of 45 such fact was however put to any expert witness during the examination. Even in common parlance, the CPU, called as the central processing unit, is the entire processing unit of the computer other than the output (monitor) and the input (keyboard), which includes hard disk and other integrated circuits. There is no merit in the claim that the witnesses were 'ignorants'.
64. There was no requirement for the investigating agency to ascertain the details and identity of the originators of the email IDs from yahoo.com, hotmail.com etc, particularly after the accused himself disclosed the passwords of these email IDs, which conclusively establishes that he was the creator / user of these emails, in the absence of any material to conclude anything to the contrary.
65. The court need not go to the details as to when the morphed picture was created or uploaded or sent. The fact that the emails had been used to send the threatening and obscene material and the fact that the incriminating material was found in the email accounts, the owner of which was the accused only, nothing further remains material whatsoever. The PW-10 though categorically stated that the picture "pick.jpg" was uploaded by mammooty on 20.03.2005 at 12.52 using the IP 203.122.31.58. Even if the said IP address could not be located or was not located, that would not be fatal to the prosecution case, as it has been established that the said email account belongs to the accused only. Irrespective of the fact as to which computer system was used by the accused, from which IP address and RC No. CYI/05E0005 P.S. CBI Page No. 43 of 45 from which location, that would not be sufficient to negate the fact that the emails had been sent by him, using his passwords, from any computer system, from anywhere and from any IP address. Even if the CD, as given to the CBI by the CFSL, which was found broken later in the court, would not make any difference in view of the material available on record.
66. In a criminal case, the burden is on the prosecution to establish the guilt of the accused beyond reasonable doubt. This burden has to be necessarily discharged by the prosecution and it cannot be shifted upon the accused. In the present case, the evidence on record is sufficient to establish the guilt of the accused. It has been established that the accused had sent morphed photograph of the complainant by using her actual photograph as sent to him in good faith and in friendly capacity earlier, along with threatening emails to the complainant. It has been established that the accused had sent indecent and obscene messages and her morphed picture to the complainant. It has been established that the accused had uploaded the said picture on the home page of the club site of indiatimes.com which was accessible to public at large.
67. Therefore, the prosecution has been able to establish that the accused has committed the offences with which he has been charged. The accused is accordingly held guilty and is convicted for the offences punishable under section 506/507/509 IPC, as well as section 67 of the Information Technology Act.
RC No. CYI/05E0005 P.S. CBI Page No. 44 of 4568. Matter be listed for arguments on sentence.
ASHU Digitally signed
by ASHU GARG
Date: 2018.08.31
Announced in the open Court GARG 16:01:16 +0530
this 31st day of August 2018 (Ashu Garg)
Chief Metropolitan Magistrate (Central)
Tis Hazari Courts, Delhi
RC No. CYI/05E0005 P.S. CBI Page No. 45 of 45