Pappu Rajbhar vs State Of Jharkhand

The instant application has been preferred by the petitioner challenging the legality, propriety and correctness of the judgment dated 14.03.2013, passed by the learned Sessions Judge, Dhanbad, in Cr. Appeal No.48 of 2013, whereby, the learned Sessions Judge upheld the judgment of conviction and order of sentence, both dated 23.01.2013, passed by learned Judicial Magistrate, Dhanbad in G.R. No.255 of 2012, arising out of Jorapokhar P.S. Case No.12 of 2012, whereby learned Judicial Magistrate has held the petitioner guilty for offence committed u/s 67/67A/67B of Information and Technology Act (IT Act) and Section 354 of IPC. The petitioner was convicted under Section 67-B of I. T. Act and the petitioner was sentenced to undergo S.I for 3 years and a fine of Rs.2000/- and in default of payment of fine, the petitioner was directed to undergo further S.I for a period of 4 months. The petitioner was also directed to undergo S.I for a period of 3 years and a fine of Rs.2000/- u/s 67-A of I. T. Act, and in default, he was ordered to undergo further S.I for a period of 4 months. The petitioner was also sentenced to undergo S.I for a period of 3 years and a fine of Rs.2,000/- u/s 67 of I. T. Act, and in default, he shall further undergo S.I for a period of 4 months. The petitioner was also sentenced to undergo S.I for a period of 2 years under Section 354 of Indian Penal Code. However, all the sentences were directed to run concurrently.

The prosecution case in brief is that the informant Preeti Kaur aged about 14 years gave a fardbeyan recorded by S.I. Kanta Kumari, O/C Mahila P.S, Dhanbad, on 23.01.2012 that she is a student of Class-IX of Royal High School, Jorapokhar. She further states that about 10 months ago at about 11:30 A.M accused-petitioner, who is a friend of her maternal uncle-Sewa Singh, came to her school and informed that her mother was seriously ill and she was instructed to accompany him. When she came out from the School, she saw another friend of accused-petitioner, namely, Raushan Kr. Sao, co accused, who has been declared as Juvenile and his record splitted up and sent to JJB, was waiting with motorcycle. Both of them took her near a railway crossing which was at a distance of about half a kilometer from her school. The accused took her inside a bush like jungle and made her to sit on his lap. Thereafter, the accused started kissing her, opened her shirt and acted indecently. Raushan Kr. Sao digitally recorded the above action. She further states that after about an hour she was dropped in her school. The further case of the prosecution is that a memory chip was handed over to the informant by the accused-petitioner on the next day who asked her to watch the same. The accused also threatened her that if she disclosed the incident to anyone, the MMS of the videography would be sent to the mobiles of other people. Later on, in order to defame the informant and her family members the above video was sent to the mobile of different person of the locality by the accused. The informant also handed over a memory chip which was given to her by the accused, to the police which was seized and production cum seizure list was made.

After institution of the case, investigation started and chargesheet was submitted against the petitioner u/s 292/354 of Indian Penal Code and u/s 67/67A/67B/84B of I.T. Act and cognizance was also taken for the said offences and charge was framed. The petitioner pleaded not guilty and sent up for trial. In order to prove the case, the prosecution has examined altogether eight witnesses.

Based upon the evidences, both oral and documentary, the learned trial Court convicted the petitioner and sentenced him as stated herein above.

Being aggrieved, the petitioner challenged the order passed by the learned trial Court before the learned Sessions Judge, Dhanbad, in Cr. Appeal No.48 of 2013, who affirmed the order and dismissed the appeal filed by the petitioner.

Mr. R. S. Mazumdar, the learned Sr. Counsel for the petitioner vehemently argued that both the Courts below has failed to consider that there is no evidence on record to show that petitioner has assaulted or used criminal force to her with intent to outrage her modesty. The learned courts below should have appreciated the statement of P.W 2 (informant) herself who admits that she has talking terms with petitioner which goes to show that the alleged act was consensual. He further submits that there is no evidence on record to prove that MMS has been transmitted in the mobile of local people. He further submits that the very usual conduct of P.W 2 (informant-victim) right from the date of occurrence that she was not upset, disheartened and tensed due to occurrence which is very unusual in human conduct creates suspicion on the entire prosecution case. Further, the co-accused-Roshan Gupta who was declared juvenile, has been acquitted by the learned Juvenile Justice Board. From bare perusal of the said judgment, it would transpire that learned J.J. Board has found that victim girl must be a consenting party as she left the school without permission of school authority.

The learned Sr. Counsel further submits that Ext.4 and Material Ext.I have not been proved by the prosecution in accordance with the provisions of Evidence Act. In this regard, he relied the judgment of Hon'ble Supreme Court reported in (2014) 10 SCC 473, Anvar P.V vrs P.K. Basheer & Others wherein the Hon'ble Apex Court has held that if the copy of statement pertaining to electronic record is produced in court, not being the original electronic record, such statement has to be accompanied by a certificate as specified in Section 65B(4) of Evidence Act. In absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence. As in the present case, no such certificate is produced or obtained by the I.O. He submits that in light of said judgment and provision of Evidence Act, conviction for the offence I.T. Act cannot be sustained in the eyes of law. He further submits that so far conviction and sentence u/s 354 IPC is concerned, the learned J.J. Board in the case of co-accused has found that victim girl must be a consenting party as she left the school without permission of school authority. He concluded his argument by submitting that even otherwise, the petitioner has remained in custody for a reasonable period and in the interest of justice, he may be granted some relief by this Hon'ble Court.

Per contra, the learned counsel for the state opposed the prayer of the petitioner and submits that the learned trial court has rightly convicted the petitioner which has also been affirmed by the appellate Court and as such no interference is required by this Court.

Heard learned Counsels for the parties and perused the material available on record. So far as conviction for the offence under I. T. Act is concerned, it is a settled law that if the copy of statement pertaining to electronic record is produced in court, not being the original electronic record, such statement has to be accompanied by a certificate as specified in Section 65B(4) of Evidence Act. In absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence. Admittedly, in the instant case, no such certificate is produced or obtained by the I.O. In this regard judgment passed by the Hon'ble Apex Court in the case of Anvar P.V vrs P.K. Basheer & Others reported in (2014) 10 SCC 473 wherein the Hon'ble Apex Court has held in para-14, 15 & 16 as under :

"14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65- A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

Thus, the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements u/s 65B of the Evidence Act are not complied with. The proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act.

That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.

It is well settled law that a revisional jurisdiction should be exercised normally on question of law. However, when factual appreciation is involved, then it must find place in class of cases resulting in perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court.

In view of the aforesaid discussions and the settled law, I am of the considered opinion that the learned Courts below has failed to see this aspect of the matter and as such there is manifest error of law in convicting the petitioner under the provisions of I.T. Act and as such the petitioner is acquitted for offence committed u/s 67/67A/67B of I.T. Act (Information and Technology Act).

So far as conviction of the petitioner u/s 354 of the IPC is concerned, I am not inclined to interfere with that part of the order of the learned trial court which has been upheld by the learned appellate court, and the same is hereby confirmed.

So far as sentence with respect to the offence u/s 354 of IPC is concerned, it has been informed that the petitioner remained is custody for about 16 months out of 2 years sentence. The case is also pending since 2012 and certainly in the last seven years the petitioner must have suffered rigors of litigation and also remained in custody for some time. In this way, I find that it is expedient in the interest of justice that the sentence already undergone will suffice for the ends of justice for the alleged offence. Thus, the sentence passed by the learned trial court and concurred by the learned appellate court is hereby modified to the extent that the petitioner is sentenced to undergo for the period already undergone. It appears that the petitioner has availed the privilege of bail by this Court and as such the petitioner is discharged from the liability of bail bonds.

As a result, this revision application is partly allowed.

Let the lower court records be sent to the court concerned, forthwith.