Bangalore District Court
Akshatha Shetty vs Jagadish on 30 April, 2024
Digitally signed
KABC030180402018 by MOHAMMED
MOHAMMED YUNUS A
YUNUS A ATHANI
ATHANI Date:
2024.05.22
16:52:14 +0530
Presented on : 13-03-2018
Registered on : 13-03-2018
Decided on : 30-04-2024
Duration : 6 years, 1 months, 17 days
IN THE COURT OF XLV ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE COURT, BENGALURU
AT: BENGALURU
Present:- Sri Mohammed Yunus Athani,
B.A.,L.L.B.
XLV Addl. Chief Metropolitan
Magistrate, Bengaluru.
Dated this the 30th day of April, 2024
C.C.No.6552/2018
Complainant:
The State,
By Police Inspector,
Mico Layout Police Station,
Bengaluru.
(By Sr. Assistant Public Prosecutor)
-V/S-
Accused:
Jagadish S/o Siddaveerayya,
Age: 40 years,
C.C.No.6552/2018
2
R/o: No.1, Puspa Layout, 7th Main,
N. S. Palya, B.T.M. II Stage,
Bengaluru.
(By Sri Ashwath C. M., Advocate)
Date of incident 15/01/2017
Date of report 16/01/2017
Date of arrest of accused ---
Date of release of accused 04/07/2018
on bail
Period of accused in J.C. --
Name of the complainant Akshatha Shetty W/o Sharath
Date of commencement of 25/07/2019
evidence
Date of completion of 09/01/2023
evidence
Offences charged U/Sec. 354A(1)(ii) of I.P.C., and
Sec.67 of Information
Technology Act, 2000.
Opinion of the Judge Accused not found guilty.
JUDGMENT
The Police Inspector, Mico Layout Police Station, has filed the final report against the accused, alleging that the accused has committed an offence punishable under Sec.354A(1)(ii) of I.P.C. and Sec. 67 of Information Technology Act, 2000.
2. The brief facts of the prosecution case are as under:
It is case of the prosecution that, on 15/01/2017, from 12:45 a.m. to 1:30 a.m., when C.W.1 was at her house, C.C.No.6552/2018 3 situated at H.No.28, Flat No.201, Sai Sumukha Dollars Apartment, 5th Cross, 3rd Main, N. S. Palya, B.T.M. Layout, 2 nd Stage, Bengaluru, the accused has sent text messages from his mobile No.7019091040 to her mobile No.8123141150, inviting her for sexual favours and caused sexual harassment to her. Thereby, the accused has committed an offence punishable under Sec. 354A(1)(ii) of I.P.C. and Sec. 67 of Information Technology Act, 2000.
3. On the basis of first information statement lodged by the informant/complainant a case is registered against the accused for the offences punishable U/Sec. 354A(1)(ii) of I.P.C. and Sec. 67 of Information Technology Act, 2000. Accordingly, the investigation officer has conducted the investigation and filed the final report against the accused, alleging commission of above offences.
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 and obtained bail. Thereafter, charge for the offence punishable U/Sec. 354A(1)(ii) of I.P.C. and Sec. 67 of Information Technology Act, 2000, is framed, C.C.No.6552/2018 4 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 5 witnesses as P.W.1 to 5 and got marked 17 documents as Ex.P.1 to 17 and one material object as M.O.1. After closure of the prosecution evidence, the statement of accused as contemplated U/Sec. 313 of Cr.P.C., is recorded and read over to the accused. The accused has denied all the incriminating circumstances appearing in the prosecution evidence and stated no evidence in his defence.
6. I have heard the arguments of both the sides and perused the entire material available on record.
7. The following points arise for my consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that, on 15/01/2017, from 12:45 a.m. to 1:30 a.m., when C.W.1 was at her house, situated at H.No.28, Flat No.201, Sai Sumukha Dollars Apartment, 5th Cross, 3rd C.C.No.6552/2018 5 Main, N. S. Palya, B.T.M. Layout, 2 nd Stage, Bengaluru, the accused has sent text messages from his mobile No.7019091040 to her mobile No.8123141150, inviting her for sexual favours and caused sexual harassment to her and thereby committed an offence punishable U/Sec.354A(1)(ii) of I.P.C.?
2. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place of offence, the accused has sent text messages from his mobile No.7019091040 to the mobile No.8123141150 of C.W.1 and invited her for sexual favours and thereby committed an offence punishable U/Sec.67 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 & 2: As both these points for consideration are inter-connected to each other, in order to avoid repetition of facts and circumstances of the case and for better C.C.No.6552/2018 6 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 total 5 witnesses as P.W.1 to 5 and got marked 17 documents as Ex.P.1 to 17.
11. The P.W.1, who is the first informant/victim in the case, has deposed in her evidence that, the accused being a doctor became familiar to her through her husband. On account of difference of opinion between her and her husband, she is residing with her parents at Bengaluru and her husband is residing at Mangalore. In the year 2014 when she had met with an accident, her husband told her to approach the accused for treatment at Sagar Hospital, Bengaluru. Accordingly, she had approached the accused and got primary treatment from him. Thereafter, within a year her mother sustained knee fracture and she was also treated by the accused. During the said period the accused used to send messages to her mobile number in order to enquire her and her mother's health condition. After six months on Varamahalaxmi festival day, she had uploaded her photo on C.C.No.6552/2018 7 Whatsapp DP. Watching the said photo the accused send her a message through whatsapp in filthy language. She blocked the mobile number of accused and informed the same to her husband. Thereafter, on 15/01/2017, the accused again send a message to her writing " Hi akshita , after a long time I am messaging u, since i saw u today I thought of telling u this, I know u don't like my intentions, but its no reasons to tell my wife abt it, say yes r no, thats it but don't keep on saying I am forcing u for things,, but u hand a certain liking for me n I had for u, don't deny that, now think abt yes r no, but please stop telling all abt it to my other half n spoil things, but sincerely i am interested in u on moral ways n i think u have the same feelings, if no, say no n don't blackmail me by telling all to my wife, a man have to have sex, plz understand it". She informed about the above message to her husband, parents, uncle and her relatives. They all went to HOSMAT Hospital and scolded the accused for sending her above message. Thereafter, she went to Halasoor Police Station and lodged the complaint against the accused, as per Ex.P.1. After lodging the complaint the Police have conducted mahazer as per Ex.P.2. Further she has deposed, along with her complaint she has handed over a copy of messages send by the accused to her , which is C.C.No.6552/2018 8 marked as Ex.P.3. Further, she has identified the accused present before the Court.
12. The P.W.2, who is one of the panch witness to Ex.P.2 spot mahazer, has deposed in his evidence that, in his presence the Police have conducted spot mahazer in the house of P.W.1, as per Ex.P.2, with respect to sexual harassment given by the accused to P.W.1 and thereby supported the case of prosecution.
13. The P.W.3, who is the Police Officer, who is said to have received the first information statement lodged by P.W.1 and registered the case against the accused, has deposed in his evidence that, on 08/03/2017 when he was on duty at Police Station, he received the First Information Statement and enclosures through Post, from Ulsoor Police Station. He verified the same, registered the case and prepared First Information Report. Thereafter, he has handed over the case file to C.W.12 for further investigation. The First Information Statement and First Information Report identified by the witness are marked as Ex.P.4 and Ex.P.5 respectively.
C.C.No.6552/2018 9
14. The P.W.4, who is the investigation officer in the case, has categorically deposed in his evidence that, he took up further investigation of the case from C.W.9 and verified the same. On 17/01/2027, he visited the house of C.W.1 and conducted spot mahazer in the presence of C.W.4, C.W.5 and C.W.1 and prepared Ex.P.2 mahazer. Since the place of offence comes within the jurisdiction of Mico Layout Police Station, with the permission of the Court, he has transferred the case file to Mico Layout Police Station for further investigation.
15. Likewise, P.W.5, who is another investigation officer in the case, has categorically deposed in his evidence that, on 08/03/2017, he took over the further investigation of the case from P.W.3. On the same day he has received mobile screen shot copies produced by P.W.1, which are marked as Ex.P.3. On 10/03/2017, he has recorded the statement of C.W.2. On 11/03/2017 the accused has appeared before him along with copy of anticipatory bail order. He has interrogated the accused and recorded his voluntary statement, marked as Ex.P.7. On the same day he has seized the M.O.1 mobile phone in the presence of one Dayan and Nithin and prepared C.C.No.6552/2018 10 Ex.P.8 seizure mahazer. On 15/05/2017 he has recorded the statement of C.W.3. On the same day he received CDR and CAF details of the accused and C.W.3, which was used by C.W.1, from concerned service providers. The Sec.65B certificate is also issued by the concerned service providers, which is marked as Ex.P.10. The copy of CAF of accused is marked as Ex.P.12 and CDR statement of mobile number of accused is marked as Ex.P.13. The CAF and CDR of mobile number of C.W.3 are marked as Ex.P.15 & 17 respectively . Further he has deposed that, on verification of both the CDRs, it is confirmed that accused has sent the many messages to P.W.1 on 14/01/2017, from midnight 12:45 A.M. to 1:30 A.M. In view of sufficient material available against the accused, on 25/05/2017 he has filed the charge-sheet against the accused. Further, he has identified the M.O.1 mobile phone and the accused present before the Court.
16. On meticulously going through the entire oral and documentary evidence placed on record by the prosecution, it clearly reveals that, none of the ingredients of offence punishable under Sec.67 of Information Technology Act, 2000, are established by the prosecution in the present case. The C.C.No.6552/2018 11 Sec.67 of Information Technology Act, 2000, prescribes punishment for publishing or transmitting obscene material in electronic form, which reads as follows:
67. Punishment for publishing or transmitting obscene material in electronic form - Whoever publishes or transmits or causes to be publishes or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or its effect is such as to tend to deprave and corrupt persons who are likely, having regards to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment or 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.
17. It is specific case of the prosecution that, on 15/01/2017, from 12:45 a.m. to 1:30 a.m., when C.W.1 was at her house, the accused has sent text messages from his mobile No.7019091040 to her mobile No.8123141150, inviting C.C.No.6552/2018 12 her for sexual favours and caused sexual harassment to her. It is not the case of prosecution that, the accused has sent any material which is lascivious or appeals to the prurient interest or its effect is such as to tend to deprave and corrupt persons who are likely, having regards to all relevant circumstances, to read, see or hear the matter contained or embodied in it. As per contents of first information statement of P.W.1, which is marked as Ex.P.1 and the evidence of P.W.1, the accused has sent text message to her mobile number, which reads as follows, " Hi akshita, after a long time I am messaging u, since i saw u today I thought of telling u this, I know u don't like my intentions, but its no reasons to tell my wife abt it, say yes r no, thats it but don't keep on saying I am forcing u for things,, but u hand a certain liking for me n I had for u, don't deny that, now think abt yes r no, but please stop telling all abt it to my other half n spoil things, but sincerely i am interested in u on moral ways n i think u have the same feelings, if no, say no n don't blackmail me by telling all to my wife, a man have to have sex, plz understand it".
18. No doubt, as per the above message, the sender is seeking sexual favour from P.W.1. But, there is no such C.C.No.6552/2018 13 material transmitted by the sender which is lascivious or appeals to the prurient interest or its effect is such as to tend to deprave and corrupt persons who are likely, having regards to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
19. Further, with regard to commission of alleged offence of sexual harassment punishable under Sec.354A)(1)(ii) of I.P.C, the burden is on the prosecution to prove that, the accused has made a demand or request for sexual favours by sending a text message through his mobile number to the mobile number of P.W.1. In order to prove the same the prosecution has strongly relied on the oral evidence of P.W.1 and the documents got marked as Ex.P.3, 13 & 17. The Ex.P.3 are the print outs of text messages, alleged to have been sent by the accused. The Ex.P.13 is the Call Details Report of the accused and Ex.P.17 is the Call Details Report of the P.W.1.
20. It is specific case of the prosecution that, the accused has sent text messages from his mobile No.7019091040 to mobile No.8123141150 of P.W.1, inviting her for sexual favours. But, it is pertinent to note that, as per Ex.P.15 Application Form, the mobile No.8123141150 belongs to one C.C.No.6552/2018 14 Manoj Gowda S/o Tulasi Raju. No where in Ex.P.1 first information statement, the name of said Manoj Gowda S/o Tulasi Raju is whispered by the complainant/P.W.1 or it is stated that, the mobile No.8123141150 belonging to Manoj Gowda S/o Tulasi Raju was being used by P.W.1, as on the alleged date, time and place of offence. Even, the said Manoj Gowda S/o Tulasi Raju, who is cited as a witness in the charge-sheet as C.W.3, has not stepped into witness box to depose that, as on the alleged date, time and place of offence, his mobile No.8123141150 was being used by P.W.1. Even after repeated issuance of summons and warrant to C.W.3, the prosecution has failed to secure and examine the said witness. In such circumstances, there is absolutely no corroborative evidence on record to show that, as on the alleged date, time and place of offence, the mobile No.8123141150 belonging to C.W.3 was being used by P.W.1.
21. Further, the P.W.1 in her cross-examination at Page No.6, line No.13, has deposed that, C.W.3 Manoj Gowda S/o Tulasi Raju is her sister's classmate. But, nothing has been stated by P.W.1 with regard to, why or under what circumstances she was using the SIM card or mobile number C.C.No.6552/2018 15 of her sister's classmate by name Manoj Gowda S/o Tulasi Raju.
22. Further it is pertinent to note that, there is no evidence on record to show that, the printout of Ex.P.3 text messages has been taken from the mobile phone of P.W.1. The source from which the said documents has been obtained has neither stated by P.W.1 or by the investigation officers, who are examined as P.W.3 to 5. Further, no certificate as mandated under Sec.65B(4) of Indian Evidence Act, 1872, has be produced by the prosecution in the case. In such circumstances, the Ex.P.3 document has no evidentiary value in the eye of law. It is strange to note that, the investigation officer/P.W.5 in his cross-examination at Page No.6 has deposed that, the P.W.1 has produced the printed screen shots as per Ex.P.3 and he has not obtained 65B(4) certificate from P.W.1, so as to ascertain from which device she has taken the said printouts. Further, the P.W.5 has voluntarily deposed that, the said print outs were taken from company and as such, he did not feel it necessary to obtain such 65B(4) certificate from concerned person as to ascertain from which device the said print outs were taken.
C.C.No.6552/2018 16
23. The certificate under Sec.65B(4) of Indian Evidence Act, 1872, is mandatory and a condition precedent for admissibility of evidence by way of electronic record in evidence. The Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar V/s Kailash Kushanrao Gorantyal, reported in 2020 SCC Online SC 571, has clearly held that, " A certificate under Section 65B(4) is mandatory, and a condition precedent to the admissibility of evidence by way of electronic record. The law laid down in Anvar (supra) need not be revisited. However, the last sentence in paragraph 24 of the said judgment which reads as "if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act" is to be read without the words "under Section 62 of the Evidence Act". The non-obstante language of Section 65B(1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf. Sections 62 and 65 are irrelevant for this purpose. The requirement under Section C.C.No.6552/2018 17 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, tablet or even a mobile phone by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. Where the computer happens to be on a system or network and it is impossible to physically bring such system or network to court, then the only means of providing information contained in such electronic record is in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). Oral evidence cannot suffice in place of a certificate under Section 65B(4) and evidence aliunde cannot be given by a person in charge of a computer device, in place of the requisite certificate under Section 65B(4). Where the requisite certificate has been sought from the person or the authority concerned, and the person or the authority concerned refuses to give such a certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under the provisions of the Evidence Act, the Code of Civil Procedure, 1908 and/or Code of Criminal Procedure, 1973. Once such an application is made to the court, and the court orders or directs that the C.C.No.6552/2018 18 requisite certificate be produced by the person to whom it sends summons in this regard, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate. The Court observed that Section 65B does not speak of the stage at which such a certificate must be furnished to the court. In Anvar (supra), the Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. This requirement is applicable in cases where such certificate could be procured by the person seeking to rely upon the electronic record. In cases where either a defective certificate is given, or where such certificate has been demanded and is not given by the concerned person, the court must summon the person referred to in Section 65B(4) and require that the certificate be given by such person(s). This ought to be done when the electronic record is produced in evidence before the court without the requisite certificate. In criminal cases, the requisite certificate can be directed to be produced by the court at any stage, as long as the trial is not over. Whilst these observations were made in the context of criminal cases, the Court noted that the aforesaid is subject to exercise of appropriate discretion in civil cases. Given that the certificate C.C.No.6552/2018 19 under Section 65B(4) may be given long after the electronic record has actually been produced by the computer, it is sufficient that the certificate is either to the best of the issuer's knowledge or belief. The conditions under Sections 65B(2) and 65B(4) must be satisfied cumulatively.
24. Further, the prosecution has failed to prove the seizure of M.O.1 mobile, alleged to have been seized from the possession of accused. The investigation officer has neither cited the panch witnesses to Ex.P.8 seizure mahazer as witnesses in the charge-sheet, nor the prosecution has taken any steps to secure and examine the said witnesses, for the reasons best known to them. Further, the investigation officer/P.W.5, who has foisted charge-sheet against the accused in the case, has clearly admitted in his cross- examination at Page No.5, last 3rd line, that, the IMEI number of mobile phone mentioned in Ex.P.13 CDR and Ex.P.8 seizure mahazer are totally different. In such circumstances, there is no other option before this Court except to hold that, the prosecution has failed to prove that, the M.O.1 mobile phone has been seized from the possession of accused in the presence of mahazer witnesses stated in Ex.P.8.
C.C.No.6552/2018 20
25. Further, it is pertinent to note that, except P.W.1 no other independent evidence has been examined by the prosecution. As such there is no cogent, corroborative and convincing evidence to show that, on the alleged date, time and place of offence, the accused has sent text messages from his mobile No.7019091040 to the mobile No.8123141150 of P.W.1, inviting her for sexual favours and thereby caused sexual harassment to her. Therefore, in the light of ratio laid down in the above cited decision and for the above stated reasons, this Court is of the considered opinion that, the prosecution has utterly failed to prove its case beyond all reasonable doubt. As such, the accused is entitled for acquittal. Accordingly, I answer Point No.1 & 2 in Negative.
26. 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.354A(1)(ii) of I.P.C. and Sec.67 of Information Technology Act, 2000.
C.C.No.6552/2018
21
The bail bond and surety bond
executed by the accused and his
surety stand canceled.
The M.O.1 mobile phone seized in
the case under P.F.No.45/2017 is
ordered to be released in favour of
accused, if applied, 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 30 th day of April, 2023) (Mohammed Yunus Athani) XLV A.C.M.M., Bengaluru.
ANNEXURE List of witnesses examined on behalf of prosecution P.W.1: Dr. Akshata Shetty W/o Sharat.
P.W.2: Ravindra S/o Narayan Shetty. P.W.3: Renuka A. V. W/o Venkata Reddy. P.W.4: Subramanya S/o Narayanappa P.W.5: B. K. Shekhar S/o B. K. Kempaiah.
List of documents exhibited on behalf of prosecution Ex.P.1: First Information Statement.
Ex.P.2: Spot Mahazer
Ex.P.3: Copy of text messages.
Ex.P.4: Requisition letter to Deputy Police Commissioner.
Ex.P.5: First Information Report.
C.C.No.6552/2018
22
Ex.P.6: Requisition for transfer of case file.
Ex.P.7: First Information Statement.
Ex.P.8: Seizure Mahazer.
Ex.P.9: Property Form.
Ex.P.10: Certificate U/Sec.65B(4)(c) of Evidence Act. Ex.P.11: Application Form for SIM card. Ex.P.12: Copy of Election Identity Card. Ex.P.13: Call Details Record of accused. Ex.P.14: Letter issued by Tala Tele Services Ltd. Ex.P.15: Application Form for SIM card. Ex.P.16: Copy of Driving Licence. Ex.P.17: Call Details Record of P.W.1 List of material objects marked on behalf of prosecution M.O.1: Mobile Phone.
List of witnesses examined and documents marked on behalf of accused
- NIL -
XLV A.C.M.M., Bengaluru.
C.C.No.6552/2018
23
Accused present.
Judgment not ready. For
judgment, call on
30-04-2024.
XLV A.C.M.M., Bengaluru.
30-04-2024 Accused present.
(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.354(A)(1)(ii) of I.P.C.
C.C.No.6552/2018 24 and Sec.67 of Information Technology Act, 2000.
The bail bond and surety bond executed by the accused and his surety stand canceled.
The M.O.1 mobile phone seized in the case under P.F.No.45/2017 is ordered to be released in favour of accused, after expiry of appeal period.
XLV A.C.M.M., Bengaluru.