Reserved On: 12.9.2024 vs Mishank
2024 Latest Caselaw 14700 HP

Himachal Pradesh High Court

Reserved On: 12.9.2024 vs Mishank on 1 October, 2024

2024:HHC:9409

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 3154 of 2023

.

Reserved on: 12.9.2024

Date of Decision: 1.10.2024.

    State of H.P.                                              ...Applicant/Appellant

                                          Versus

    Mishank


    Coram
                            r                to                  ...Respondent

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.

For the Applicant/appellant : Mr. Ajit Sharma, Deputy Advocate General.

    For the Respondent                          :      None.




    Rakesh Kainthla, Judge

Applicant/Appellant has filed the present petition

under Section 378(3) of the Code of Criminal Procedure for

seeking leave to appeal against the judgment dated 9.8.2023,

passed by learned Special Judge, Una, District Una, H.P., (learned

Trial Court) vide which the respondent (accused before learned

Trial Court) was acquitted of the commission of offences

punishable under Section 67B of Information Technology Act

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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(IT Act) and Section 14 of Protection of Children from Sexual

Offences Act (POCSO Act). (The parties shall hereinafter be referred

.

to in the same manner as they were arrayed before the learned Trial

Court for convenience).

2. Briefly stated, the facts giving rise to the present

petition are that the police received a letter from the

Superintendent of Police, Cyber Crime, CID, Police

Headquarters, Shimla stating that the Cyber Crime Prevention

against Women and Children Monitoring Team (NCRB) New

Delhi had shared four CDs/DVDs about the offences committed

within the jurisdiction of Una. A request was made to take legal

action in the matter and submit a compliance report to the

Police headquarters. FIR (Ex.PW3/E) was registered in the Police

Station. Inspector Indu Devi (PW3) went through the Cyber

Tipline Report (Ex.PW3/A) and found that accused Mishank Raj

had uploaded a child pornographic video to his Facebook

account from his mobile number with the user name and IP

address specified in the Cyber Tiplines Report. She obtained the

customer application form for the mobile phone (Ex.PW3/B).

She downloaded the content of the complaint received from

Cyber Cell, Shimla and transferred them to CD (Ex. P5). She

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issued the certificate under Section 65B of the Indian Evidence

Act (Ex.PW3/F). Charu Sharma (PW8) investigated the matter.

.

She issued a notice to the accused. She seized the mobile phone

of the accused vide memo (Ex.PW1/A). The mobile phone was

sealed and deposited in the Malkhana. As per the complaint, the

video was shared by the accused with Rakesh Kumar (PW4) and

his statement was recorded. The mobile phone of the accused

was sent to RFSL Dharamshala. A report (Ex.PW6/P6) was

issued. The statements of witnesses were recorded as per their

version and after the completion of the investigation, the

challan was filed before learned Special Judge, Una.

3. Learned Special Judge, Una framed charges against

the accused for the commission of offences punishable under

Section 67 of the IT Act and Section 14 of the POCSO Act. The

accused pleaded not guilty and claimed to be tried.

4. The prosecution examined nine witnesses to prove

its case. HASI Bhakhtwar Singh (PW1) is the witness to the

mobile phone recovery. HC Suresh Kumar (PW2) is the witness

to the conversion of the CDs into one CD by Inspector Indu Devi

(PW3). Rakesh Kumar (PW4) refused to support the prosecution

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case that the accused had shared the obscene video with him.

Devinder Verma (PW5), Nodal Officer of Bharti Airtel, proved the

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customer application form (Ex.PW5/B) and issued a certificate

(Ex.PW5/C). HC Pramod Singh (PW6) was working as MHC with

whom the case property was deposited. LC Soni (PW7) carried

the case property to RFSL, Dharamshala and handed over the

receipt to MHC on her return. Charu Sharma (PW8) conducted

the investigation. Darshan Singh (PW9) was working as

Inspector/SHO, who prepared the challan and presented it

before the Court.

5. The accused in his statement recorded under Section

313 of Cr.P.C. denied the prosecution case in its entirety. He

stated that he had not uploaded any video. He was working as a

security guard. He was called by the police and his mobile phone

was seized.

6. The accused was asked to lead the defence evidence.

He stated initially that he wanted to lead defence evidence but

subsequently, a statement was made by learned counsel for the

accused that he did not want to lead any defence evidence.

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7. The learned Trial Court held that witness Rajesh

Kumar (PW4) had not supported the prosecution version. The

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victim seen in the video was not identified and there was no

evidence that she was a child. The mobile phone of the accused

was taken into possession and it was sent to RFSL Dharamshala

for examination. However, no video was found on the mobile

phone. The video was also not played in the Court and there was

nothing to suggest that the video was pornographic. Rakesh

Kumar (PW4) did not support the prosecution case that the

accused had shared the video with him. Hence, the accused was

acquitted.

8. Being aggrieved from the judgment passed by the

learned Trial Court, the State has filed the present petition

seeking leave to appeal. It has been asserted that the learned

Trial Court failed to appreciate the material on record. A proper

standard for appreciation of evidence was not adopted. The

testimonies of prosecution witnesses were discarded without

any reason. Learned Trial Court had not appreciated the

statements of the official witnesses including Rakesh Kumar

(PW4) in their proper perspective. The statements of the official

witnesses corroborated each other and learned Trial Court erred

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in acquitting the accused. Hence, it was prayed that the present

petition be allowed and the leave to appeal be granted.

.

9. A notice of the application was issued to the

respondent. The respondent did not appear before the Court

despite service. Hence, the respondent/accused could not be

heard.

10.

I have heard Mr. Lokender Kutlehria, learned

Additional Advocate General, for the applicant/State. He

submitted that the learned Trial Court erred in acquitting the

accused. It was duly proved by the Cyber Tipline Report that the

video was uploaded from the account of the accused. Learned

Trial Court ignored the report. The CD was produced before the

Court and the Court could have watched the same. The accused

could not have been acquitted on the ground that the CD was not

played in the Court. Therefore, he prayed that the present

petition be allowed and the leave to appeal be granted to the

State.

11. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

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12. The Cyber Tipline Report (Ex.PW3/A) shows that a

child pornographic video was uploaded on the messenger by

.

Monu Shehjada. His date of birth was mentioned as 28.9.1990

and his approximate age was mentioned as 29 years. The video

was uploaded on June 29, 2020, from Amb, Himachal Pradesh

with the IP Address specified in the Cyber Tipline Report. It was

specifically mentioned in the Cyber Tipline Report that in case of

any further information, the e-mail address or the phone

number mentioned in the report should be contacted. There is

no evidence on record that the police had contacted the person

mentioned in the phone number or the e-mail ID. This was

necessary to ensure the authenticity of the report. It was

essential for the police to examine the person to prove the

contents of the report. It was laid down by the Bombay High

Court in Sir Mohammed Yusuf v. D, 1961 SCC OnLine Bom 5: AIR

1968 Bom 112 that the truthfulness of the contents of a document

can be proved by examining the person who had written it. It

was observed at page 118:

20....The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is

2024:HHC:9409

to set at nought the well-recognised rule that hearsay evidence cannot be admitted. This question has been discussed by Halsbury at paragraph 533 at p. 294 (Halsbury's Law of England, 3rd Edition, Vol. 15) under the

.

heading 'Hearsay' says Halsbury:

".. .. .. Statements in documents may also be hearsay. So, if A had taken counsel's opinion before acting, the

contents of the opinion would be admissible for the same purpose, but not to prove the truth of any statement of fact therein".

21. In paragraph (534) Halsbury has discussed the reasons

for the rejection of hearsay evidence and says:

"The reasons advanced for the rejection of hearsay are numerous, among them being the irresponsibility of

the original declarant, the depreciation of truth in the

process of repetition, the opportunities for fraud which its admission would offer, and the waste of time involved in listening to idle rumour.

The two principal objections, however, appear to be

the lack of an oath administered to the originator of the statement, and the absence of opportunity to cross-examine him."

13. This Court took a similar view in UCo Bank vs. Durga

Dass 1995 (1) Shim. LC 497 = 1995 ILR (HP) 110 and observed:

18. Thus, on the basis of the Law of Evidence Act and the guidelines, which can be taken note of from the cases decided by the apex Court and referred to above, it can safely be said that merely exhibiting a document will not absolve the party, relying on the document, from proving its execution and the contents thereof in accordance with law especially when the document is a private document, the scribe and the person who executed it, are the witnesses who alone could successfully and legally prove such a document.

2024:HHC:9409

14. Similar is the judgment in Narbada Devi Gupta v.

Birendra Kumar Jaiswal, (2003) 8 SCC 745: 2003 SCC OnLine SC

.

1204 wherein it was observed at page 751:

"16. Reliance is heavily placed on behalf of the appellant

in the case of Ramji Dayawala & Sons (P) Ltd. [(1981) 1 SCC 80] The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its

execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". The situation is, however, different where the documents are produced,

they are admitted by the opposite party, signatures on

them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent

receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as admitted documents."

15. Thus, the prosecution cannot take any advantage of

the Cyber Tipline Report to prove its case.

16. Rakesh Kumar (PW4) stated that he was called to the

Police Station and an inquiry was made regarding the video. He

disclosed that no video was received by him on his mobile

phone. He was permitted to be cross-examined. He denied that

he had told the police that he had received the video but the clip

was deleted by him. He was contradicted with his previous

2024:HHC:9409

testimony but he denied the same. It is apparent from his

statement that he has not supported the prosecution case that

.

the accused had forwarded the video to him and no advantage

can be derived from his testimony by the prosecution.

17. The police had also seized the mobile phone of the

accused. It was sent for analysis to RFSL, Dharamshala. As per

the report (Ex.PW6/P6), the mobile phone and the memory card

were carefully examined. The data related to child pornography

w.e.f. 1.6.2020 till 31.7.2020 was not found present in the

extracted data of the mobile phone, SIM card and memory card.

This shows that there was no pornographic video on the mobile

phone of the accused. This falsifies the prosecution version that

the accused had uploaded the video from his mobile.

18. The police obtained the customer application form

along with the identity proof. Aadhar card was furnished as the

proof of identity which mentions the date of birth of the accused

as 20.1.1991, which is contrary to the date of birth mentioned in

the Cyber Tipline Report. Hence, the proof of identity taken into

possession by the police from the mobile service provider does

not match the Cyber Tipline Report.

2024:HHC:9409

19. There is no other evidence connecting the accused

with the commission of crime. HASI Bhaktwar Singh (PW1) has

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not stated anything about the involvement of the accused.

Suresh Kumar (PW2) was the witness to the transfer of the

content to the CD and did not name the accused. Inspector Indu

Devi (PW8) conducted the investigation and did not show the

involvement of the accused. Devinder Verma (PW5) proved that

the mobile number was issued to the accused but he did not

prove that the accused had uploaded the video. HC Pramod

Singh (PW6) handed over the mobile phone to RFSL,

Dharamshala and LC Soni (PW7) carried the mobile phone to

RFSL, Dharamshala. Their testimonies also do not prove that the

accused had uploaded the video. Charu Sharma (PW8) conducted

the investigation and she was not a witness to the uploading of

the video. Darshan Singh (PW9) prepared the challan and has

not stated anything about the uploading of the video.

20. Thus, the learned Trial Court had rightly held that

the prosecution had not succeeded in establishing its case

beyond reasonable doubt and acquitted the accused. There is no

reason to grant the leave to appeal in the present case.

2024:HHC:9409

21. Hence, the present petition fails and the same is

dismissed.

.

                                                (Rakesh Kainthla)
                                                     Judge
     1st October, 2024





          (Chander)




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