Indian Kanoon - Search engine for Indian Law

16. On the other hand, Ld. Counsel for the accused has questioned 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 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 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.

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 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.

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 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.