Bangalore District Court
(Represented By The Learned App) vs For The Offences Punishable Under on 24 September, 2021
1 CC 5747 of 2018
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 24th DAY OF SEPTEMBER 2021
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 5747 OF 2018
BETWEEN
1. STATE represented by
Beguru Police, Bengaluru ....COMPLAINANT
(Represented by the learned APP)
AND
1. Sudeep S/o Subbanna,
Aged about 21 years,
R/o. Bellala Village, Moodamunda Post,
Vandse Hobli, Kundapur Taluk,
Udupi District.
....ACCUSED
(Represented by Sri.Naveen Chandra Shetty Advocate)
BEGURU POLICE HAVE CHARGE SHEETED THE
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 354D, 501, 509 OF IPC R/W SECTION 67A
OF INFORMATION TECHNOLOGY ACT, 2000.
AFTER ADJUDICATION, THIS CASE COMING ON FOR
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING....
2 CC 5747 of 2018
Offences alleged u/s : 354D, 501, 509 of IPC
& Section 67A of Information
Technology Act, 2000.
Charge sheet filed on : 04042015
Trial commenced on : 21092021
Trial completed on : 21092021
Judgment date : 24092021
Total duration : DaysMonths Years
20 05 06
JUDGMENT
1. Case of the prosecution is stated hereinafter; It is alleged that PW1 came in contact with accused through the social media called "facebook". PW1 is an artist and she does an art called as "Yakshagana". Knowingly well about that, the accused collected her other information and introduced himself to her as her fan. He further told her that he wants to write an article about her. Accordingly he took her mobile phone number by introducing himself as Sudeep Shetty. However he wanted to defame her. He used his elder brother's phone and created a fake account assigning its name as "HB Devaraja HB" and disturbed her by sending 3 CC 5747 of 2018 irrelevant messages. When she questioned about the details by sending the message to the said account, inspite of her reluctance, he has sent messages in a entising her for sexual favors and in his comments he did offer Rs.01,00,000/ towards the same. PW1 got disturbed and informed him that the she would file a police complaint. In turn he has sent a false message asserting that one Neelkodu Shankar Hegde and Kyadagi Mahabaleshwar Bhat only have given supari to him for stalking and thus he apologized. But further he used one more Micromax Bolt mobile phone. He used a Sim card No.9632516791 and created one more account in the name of "HB Devaraja HB" in the "facebook" social media and in said account he published defamatory aspects about PW1 and disturbed PW1 to 3 mentally. Thereafter he called PW1 and informed her that one Sudeep Shetty being her fan has published some fake and derrogatory comments etc., and prompted her to submit a police complaint.
4 CC 5747 of 2018
2. The investigation officer did draw the mahazar and seized the articles and recorded the statements of the witnesses. Upon completion of his investigation, he charge sheeted the accused for the offences aforementioned.
3. This court took the cognizance of the offences punishable under sections 354D, 501, 509 of IPC and also of a section 67A of Information Technology Act. As per the directions of the court, CC.No.5747 of 2018 came to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
4. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to the accused in Kannada language in which he claims to be conversant with. But he did not plead guilty and 5 CC 5747 of 2018 he claimed then, to be tried. Therefore, this court issued summons to the witnesses.
5. In the course of trial, the prosecution has examined CW1 as PW1 and CW2 as PW3 and CW3 as PW2. Considering their evidence, this court taking into consideration the nature of the case as well, has dropped other witnesses CW4 to 12. Accordingly this court has dispensed with the statement of accused, which ought to have been recorded under section 313 of Cr.P.C., if any incriminating evidence would have been made available by the prosecution against accused. Accordingly the matter came to be posted for arguments.
6. Heard the arguments of learned Sr.APP.
7. Heard the arguments of the learned counsel for the accused.
6 CC 5747 of 2018
8. Following points arise for determination;
1) Whether the prosecution proves beyond reasonable doubt that, the accused has published and transmitted in the electronic form, a comment which contains a sexual explicit acts and conduct as to PW1 by creating a facebook accounts and therefore, the same has put those PW1 to 3 to mental agony and therefore the accused shall be punished for an offence punishable under section 67A of Information Technology Act, 2000?
2) Whether the prossecution proves beyond reasonable doubt that the accused herein has created a fake facebook account in the name of Devaraja HB, has tried to entice PW1 by sending the message in which he invites her by way of stalking for sexual favors and offered Rs.01,00,000/ for the same and he continously followed her by meassaging her and tried to contact her to have personal interaction repeatedly despite her clear indication of her disinterest to continue to chat and he monitored her use of internet and facebook and thereby he has committed an offence punishable under section 354D of IPC ?
3) Whether the prosecution proves beyond reasonable doubt that the accused has created a fake facebook account in the 7 CC 5747 of 2018 name of one H.B.Devaraja and has used that facebook account to comment in an indecent manner and also in a defamatory manner and publicly in the said acccount and has commented against her by inviting her for sexual favors and offered Rs.01,00,000/ for the same, which is nothing but a defamatory message which has hurt the feelings of PW1 to 3 and also has defamed PW1 and in the said message, he has engraved, such a matter which is defamatory to her and therefore, he shall be punished for an offence punishable under section 501 of IPC ?
4) Whether prosecution proves beyond reasonable doubt that the accused herein has created a fake facebook account and through the said fake account he had sent a message publicly about PW1, to her account with an intention to insult her modesty and he uttered such words which give a clear meaning that he has offered Rs.01,00,000/ for sexual favors and he intended to use such words against her only to see to it that her privacy is intruded and thereby by way of using such words, he insulted the modesty of PW1 and therefore he shall be punished for an offence punishable under section 509 of IPC ?
5) what order ?
8 CC 5747 of 2018
9. Above points are answered as under; Point nos.01 to 4 : In the Negative Point no.05: As per final orders for the following reasons...;
REASONS The burden of proof heavily lies upon the prosecution to prove the case. The said burden has to be discharged by the prosecution alone.
10. Points nos'.01 to 4 ; Though a serious case as to creation of fake account and use of words which constitute defamation and which would intrude the privacy of PW1 etc, being have been alleged by the prosecution against accused, although it has been alleged in the case that the aforementioned acts of the accused have constituted the offence punishable under section 67A of Information Technology Act, 2000 and the offences described in sections 354D, 501 and 509 of IPC, all PW1 to 3 in the course of 9 CC 5747 of 2018 their examinations in chief have turned hostile to the case of the prosecution.
11. PW1 in her evidence has clearly deposed that the accused has been acquainted with her. He has not sent any messages in a bad manner to her and he has not spoken or engraved or used defamatory words or any words which would disturb her reputation and he has not publicly uttered any word which would defame her reputation and he has not put any threat and he has not used any word which would outrage her modesty and he has not insulted her etc.
12. Further she has deposed in her evidence that as the accused got introduced in facebook account to her, there has been some small differences amongst them and therefore she has submitted the first information to the police. However she has pleaded ignorance regarding the contents of Ex.P1. Even during her 10 CC 5747 of 2018 cross examinaiton also learned Senior APP did not elicit anything which would dismantle her evidence.
13. PW2 and PW3 are being her parents, have deposed similarly to what has been deposed by their daughterPW1 and they also did not support the case of the prosecution. Even during her cross examination, learned Senior APP did not eliect anything which would dismantle their evidence.
14. Though it is the specific case of the prosecution that the accused has created a fake account in facebook social media and used it against PW1 to send her messages in a manner which constitues an offence called Stalking etc, though the prosecution has specifically alleged that the accused has committed the offence punishable under section 67A of Information Technology Act, 2000 by way of publishing some messages or materials containing some sexual explicits act and conduct etc, against 11 CC 5747 of 2018 PW1, no evidence has been adduced by the prosecution to prove the same. Although the prosecution has alleged that the aforementioned alleged acts of accused have intruded upon her privacy etc, prosecution has utterly failed to adduce evidence to the said effect.
15. The prosecution has not even adduced any evidence to prove that the accused has engraved such a matter knowingly well that the words engraved by him would defame the reputation of PW1 etc, prosecution has not adduced any evidence at all. Therefore, there is nothing on record to believe that the accused has committed those offences.
16. Although PW1 in her examination in chief has deposed that the accused came in contact with her in facebook social media, although she has deposed that there were some differences between them and therefore she submitted the case etc, still those 12 CC 5747 of 2018 aspects will not incriminate accused. On the basis of these aspects the offences aforementioned cannot be stated to have been established beyond reasonable doubt.
17. There is nothing on record to believe that he has created a fake account. Moreover prosecution has not showed any person in the list of witnesses, who is well worsed in ascertaining the aspect as to in what way the fake account has been created and by using which IP address the alleged messages have been sent to PW1 etc. Therefore, when such being the case, this court has dropped the witnesses of the charge sheet except who have been examined so far, as aforesaid, for the aforesaid reasons as well. Therefore, there is nothing on record which prove the case of the prosecution and accordingly the foregoing aspects promote the delivery of findings in the negative with respect to the points for determination aforementioned.
13 CC 5747 of 2018
18. For the purpose of clarity sections 67A of Information Technology Act and Sections 354D, 501 and 509 of IPC are extracted herein below;
Section 67A in The Information Technology Act, 2000 78 [ 67A Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form. Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. ] Section 354D of Indian Penal Code [354D. Stalking.(1) Any man who
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or 14 CC 5747 of 2018
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.]
15 CC 5747 of 2018 Section 501 in The Indian Penal Code
501. Printing or engraving matter known to be defamatory.--Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. Section 509 in The Indian Penal Code
509. Word, gesture or act intended to insult the modesty of a woman.--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
19. I have carefully gone through the wordings employed in the provisons of laws extracted herein above. The evidence of the prosecution letin does not establish any of the ingredidents of those sections of various statutes against accused. Therefore, for the foregoing reasons the Points aforementioned are answered in the Negative.
16 CC 5747 of 2018
20. Point No.5 : The failure of the prosecution to establish the case promotes the rendition of an operative portion as below. Resultantly the following ;
OPERATIVE PORTION Invoking section 248(1) of Cr.P.C, the accused is hereby acquitted of the offences punishable under section 67 of Information technology Act, 2000 and of Sections 354D, 501 and 509 of IPC.
The bail bond and surety bond of accused if any, will be in force till completion of appeal period, thereafter, they shall stand cancelled.
The property stated in PF No.79/2015 dated 04/07/2015, Mobile Phone being Samsung Galaxy Core Mobile phone (White coloured, IMEI No.357089058249717, 357090058249715) is concerned, Vide orders dated 07/01/2016, this court has permitted the IO to retain the said property with him till completion of investigation. 17 CC 5747 of 2018 Thereafter the record does not specify any order as to interim release of said property. Hence, now the said Mobile Phone shall be returned to its actual owner after ascertaining the right to receive it and shall submit the documents to the court regarding the same forthwith.
(Dictated to the stenographer, typed by him, corrected by me and then pronounced in the open court today, that is on 24092021) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 18 CC 5747 of 2018 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : Arpitha Hegde PW.2 : Smt.Surekha PW.3 : Sri.Suresh Hegde List of documents marked on behalf of the Prosecution: Ex.P.1 : Complaint Ex.P.1(a) : Signature of PW1 Ex.P.2 : Statement of PW2 Ex.P.3 : Further statement of PW2 Ex.P.4 : Statement of PW3 Ex.P.5 : Further statement of PW3 List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL S.S.BHARATH XLI (41ST) ACMM, BENGALURU;