Mahendra Sen vs The State Of Madhya Pradesh
2023 Latest Caselaw 14286 MP

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IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
         HON'BLE SMT. JUSTICE ANURADHA SHUKLA
               ON THE 31st OF AUGUST, 2023
               CRIMINAL APPEAL No. 6128 of 2023

BETWEEN:-

MAHENDRA SEN S/O SHRI DEVISINGH SEN,
AGED ABOUT 33 YEARS, AGRICULTURIST, R/O
VILLAGE BHAVRA, WARD NO.9, P.S. ASHTA,
DISTRICT SEHORE (MADHYA PRADESH)
                                                         .....APPELLANT
(BY SHRI SATYAM AGRAWAL - ADVOCATE)

AND

THE STATE OF MADHYA PRADESH THROUGH
STATION HOUSE OFFICER, POLICE STATION
ASHTA, DISTRICT SEHORE (MADHYA PRADESH)
                                                       .....RESPONDENT
(BY SMT. VINEETA SHARMA - PANEL LAWYER )


       RESERVED ON            : 24.08.2023

       PRONOUNCED ON :             31.08.2023



      This appeal having been heard and reserved for judgment, coming

on for pronouncement this day, the court passed the following:
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                              JUDGMENT

This criminal appeal has been preferred to assail the judgment

passed on 18.04.2023 by First Additional Sessions Judge, Ashta, District-

Sehore, in S.T. No.121/2022, by which the appellant has been convicted

for the offence of Section 506(Part-II) of Indian Penal Code (hereinafter

referred to as "I.P.C.") and Section 67 of the Information Technology Act

(hereinafter referred to as "I.T. Act") and sentenced to undergo rigorous

imprisonment of one year and two years, respectively, with fine amount

of Rs.1,000/- and Rs.50,000/-, respectively, along with default

stipulations.

2. Brief facts of the prosecution case are that appellant was the

teacher of mathematics in the school, in which prosecutrix was studying

in 12th standard. Later, prosecutrix went for graduation course and when

she was in final year, in the month of December, 2020, appellant

proposed her to marry; he took the prosecutrix to his house where he

forcibly raped her and threatened her to life if she shared this incident

with anyone; the appellant, then started blackmailing her. The prosecutrix

later came to know that the appellant was a married man having children

and that he had made some obscene photos of her. On being informed

about these facts, the prosecutrix stopped talking or meeting the

appellant, but then he started stalking her. The prosecutrix was engaged

to another man, but the appellant sent him the obscene (naked) photos

and videos of the prosecutrix to her fiancé. The appellant made this

footage viral because he did not want that the prosecutrix could get

married. The fiancé of the prosecutrix downloaded the photos but before

he could download the video, the appellant deleted it. The appellant is

still threatening the prosecutrix of having numerous obscene photos and

videos of her. The screenshots of photographs sent by the appellant were

taken, which were submitted to the police. On the basis of this FIR, case

was registered against the appellant. After investigation, charge-sheet was

filed and the appellant was tried for the offence of Sections 376(2)(n),

354-D, 506(Part-II) of I.P.C. and Section 67 of the I.T. Act. In the

impugned judgment, the appellant was acquitted of the charges of

Sections 376(2)(n) and 354-D of I.P.C. and was convicted and sentenced

as aforesaid.

3. The grounds raised in this criminal appeal are that the

impugned judgment was passed without taking the entire facts and

circumstances into consideration. It is admitted by the prosecutrix that

she went along with the appellant to his village on his motorcycle. In

these circumstances, no offence of Section 506 of I.P.C. could be made-

out. The prosecutrix herself has admitted that there were many people

standing near the house of appellant and it is proved that she did not take

help of any of them nor raised any alarm, which proves that she was a

consenting party. The FIR was lodged after a lapse of two years from the

alleged date of occurrence. The appellant is convicted for the offence of

Section 67 of the I.T. Act, but electronic evidence has not been proved in

accordance with the provisions of Section 65-B of the Indian Evidence

Act, as no primary evidence was produced in evidence. The learned Court

below observed that there were as many as 51 photos seized from the data

of Samsung phone, but mere possession of obscene videos does not

attract the offence of Section 67 of the I.T. Act. There is no clinching

evidence on record to show that the appellant was in any way actively

involved in the commission of offence proved against him. It is,

therefore, prayed that the instant appeal be allowed and the judgment of

conviction and sentence be set-aside by acquitting the appellant.

4. Learned counsel for the State has opposed the present appeal

claiming that the judgment is passed on proper appreciation of facts and

evidence, hence, does not require any interference in appeal. It is,

therefore, prayed that the appeal be dismissed.

5. Learned counsels for both the parties have been heard and the

record is perused.

6. The impugned judgment shows that the charges of Sections

376(2)(n) and 354-D of I.P.C. were examined in the light of evidence

available on record and it was observed in paragraph-41 of the impugned

judgment that the prosecutrix was a consenting party, who never

complained or raised any objection against the sexual advances of the

appellant. Despite these observations, it was found proved that the

appellant had threatened the prosecutrix and had therefore committed the

offence of Section 506(Part-II) of I.P.C. The discussion regarding

conviction on this count is available in paragraphs-8 and 9 of the

impugned judgment. It is mentioned therein that in the month of

December, 2020, the appellant had forcible sexual relation with the

prosecutrix and he thereafter, threatened her to continue this relationship

otherwise he would kill her. It is observed by the trial Court that the

prosecutrix became so afraid that she did not tell anyone about the

incident and because of this fright, she started going to the place of

appellant. These two findings, in one of which, the Court has observed

that the prosecutrix was a consenting party and the other one, in which

the Court has held that the prosecutrix was frightened on account of threat

given by the appellant, are in absolute contradiction with each other and

in no eventuality, they can go along. Thus, the finding given by the trial

Court of causing criminal intimidation to the prosecutrix, cannot be

sustained in the light of facts observed regarding the consenting nature of

relationship.

7. It is claimed by the prosecutrix (PW/1) in paragraph-3 of her

statements that the appellant had recorded a video when he established

physical relationship with her the very first time and the appellant used to

send the video in her WhatsApp account. In contrast to these allegations,

the FIR (Ex.-P/1) discloses that the episode of preparing video happened

later in time and not on the very first occasion when they were sexually

intimate. Thus, the statements of prosecutrix are not credible on this point

as they are based on improvements and embellishment.

8. In the light of above discussion relating to the observation of

the trial Court regarding the consenting nature of relationship and also the

improvements made by the prosecutrix in her Court testimony, the

conviction of appellant under Section 506(Part-II) of I.P.C. is not

sustainable.

9. Further, it is claimed by the prosecution that the obscene

(naked) photos and videos of prosecutrix were sent by the appellant to her

fiancé and before the video could be downloaded, the appellant deleted it

while the photographs were downloaded by the fiancé of the prosecutrix

who also took their screenshots. Further, obscene photos and videos are

submitted as annexures along with cyber cell report, which is marked as

Ex.-P/24. This report is regarding forensic examination of mobile phone

seized from possession of the appellant. According to this report, 132

photos and 51 video files were extracted from the recovered data of

mobile phone. This evidence could, at the most, prove the fact that these

photos and videos were available in the data of mobile phone of

appellant, but this evidence does not prove that the data saved in mobile

phone of appellant was ever sent to the mobile phone of the fiancé of the

prosecutrix. The appeal is argued on the point that the prosecution has

failed to prove the transmission or publication of obscene data from the

mobile phone of appellant to any other electronic device.

10. Section 67 of the I.T. Act, may be conveniently reproduced

here, which reads as under:-

"67. Punishment for publishing or transmitting obscene material in electronic form. - Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave or corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or

embodied in it, shall be punished on first conviction with imprisonment of 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."

11. From this definition, it is evident that it is the case of

publication or transmission or taking steps for publication, which is

punishable under Section 67 of the I.T. Act. In the present case, the

prosecution has not been able to prove that the objectionable data

contained in the mobile phone of appellant was sent to any other mobile

or electronic device. Thus, in absence of proof regarding necessary

ingredients of publication/transmission, the appellant could not have been

convicted under Section 67 of the I.T. Act, merely on the basis of cyber

cell report.

12. It is claimed by the fiancé of the prosecutrix (PW/3) that he

received a message from an unknown WhatsApp number, in which it was

mentioned that the sender was keen to tell something and thereafter,

obscene photos and videos of the prosecutrix were sent by that number.

The entire statement of the fiancé of the prosecutrix does not reveal the

phone number, from which this message and photos/videos were sent.

There is no investigation regarding the phone number of person sending

the message and other items. The fiancé of the prosecutrix has claimed

that the number belonged to the present appellant, but this statement was

not verified during investigation.

13. The brother of the prosecutrix (PW/2) has also been examined

in this case, wherein he has disclosed of having conversation with the

fiancé of prosecutrix regarding the message and photos/videos sent on his

WhatsApp account. According to the brother of prosecutrix, these photos

were further sent by the fiancé of prosecutrix to him, which he showed to

the prosecutrix and asked about the person present in those visuals. It is

also claimed by the brother of the prosecutrix that he then came to know

that it was the appellant who was a teacher in the same school where the

prosecutrix had studied. This witness does not disclose that he was aware

of the phone number of the appellant and also failed to state that from the

phone number of appellant, obscene photos and videos were sent to the

WhatsApp account of the fiancé of the prosecutrix.

14. On the basis of above discussion, it is evident that the

prosecution has failed to prove either on the basis of statements of

witnesses or through technical evidence that any obscene data was

transmitted by the appellant to the WhatsApp account of the fiancé of the

prosecutrix. The prosecution has also failed to prove the fact that there

was any publication of data available in the mobile phone of the

appellant. Thus, the essential ingredient of Section 67 of the I.T. Act is

not proved in the case; hence, conviction under that section is not

sustainable.

15. In the light of above discussion and the entire facts of the case,

the conviction of appellant under Section 506(Part-II) of I.P.C. and

Section 67 of the I.T. Act, is not sustainable. Accordingly, the impugned

judgment dated 18.04.2023 is set-aside and the appellant is acquitted of

the charges as aforesaid. Consequently, the appeal stands allowed.

16. The bail bonds of appellant stand discharged. Fine amount, if

any, deposited in the case, be refunded to the appellant.

17. Let a copy of this judgment be sent to the concerned trial Court.

(ANURADHA SHUKLA) JUDGE

Prachi

Digitally signed by PRACHI PANDEY Date: 2023.09.01 15:23:47 +05'30'