Sakeer Hussain v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 17TH DAY OF JULY 2018 / 26TH ASHADHA, 1940** **Crl.MC.No. 2972 of 2015** **(AGAINST THE ORDER/JUDGMENT IN SC 594/2014 of SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI)** ## **PETITIONER(S)/1ST ACCUSED** **SAKEER HUSSAIN, S/O.KUNHI MOHAMMED, PALLIYALIL HOUSE, PO KALADI, MANOOR, MALAPPURAM DISTRICT.** **BY ADVS.SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031** **2. THE SUB INSPECTOR OF POLICE, CHENGARAMKULAM POLICE STATION, MALAPPURAM DISTRICT, PIN-676 505.** **R BY PUBLIC PROSECUTOR SMT. V.SREEJA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-07-2018, THE COURT ON 17/7/2018 PASSED THE FOLLOWING:** **Crl.MC.No. 2972 of 2015 ()** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **ANNEXURE A : CERTIFIED COPY OF THE FINAL REPORT IN SC NO.594 OF 2014 ON THE FILES OF THE SPECIAL COURT FOR SC/ST (POA) ACT CASES, MANJERI.** ## **RESPONDENTS EXHIBITS:** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.2972 of 2015** - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of July, 2018 ## **O R D E R** The first accused in SC No.594/2014 of the Special Court for Scheduled Caste/Scheduled Tribe(Prevention of Atrocities) Act Cases, Manjeri for offences punishable under sections 509, 34 IPC and sections 67 and 67A of the Information Technology Act and Section 3(1) (XI) of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, has approached this court to quash the proceedings against him. 2. The defacto complainant was the collegue of the petitioner in a shop. She alleged that, in March 2009, the petitioner had taken her photograph on a mobile and with the help of a computer technician, the sexual images of other persons were morphed on a computer with the photograph of the defacto complainant, with the full knowledge that the defacto complainant belonged to a scheduled caste community. The morphed photograph and the sexual scenes were shown to the defacto complainant by the petitioner herein. Thereafter, the images were transmitted to the phone of the second accused, who spread it to several other persons through their mobiles. Alleging that the accused had committed acts which were intended to outrage her Crl.M.C.No.2972/2015 2 modesty and that they have committed various offences punishable under the provisions of Information Technology Act 2000, the defacto complainant filed a complaint. She alleged that, the above acts were done by the accused taking advantage of the fact that she belonged to SC community. Crime was registered and after investigation, final report was laid. Cognizance was taken and the matter is now pending before the Special Court for Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act Cases, Manjeri. 3. The premise on which the Crl.M.C.is laid is that, the prosecution allegation and the materials produced by the prosecution do not prove prima facie, the allegations raised against the petitioner. It was contended that, the petitioner has been falsely implicated and in spite of detailed investigation, the investigating agency could not bring out any incriminating circumstance establishing the allegation against the petitioner herein. It was further contended that, there is no likelihood of a conviction and hence, the prosecution of the petitioner herein will be a futile exercise. 4. It was contended by the learned counsel for the petitioner that, the specific allegation of the prosecution was that the petitioner herein had taken a photograph of the defacto complainant, morphed it with other sexual scenes using a computer and transmitted to the second accused, who in turn, flashed it to other persons. It was Crl.M.C.No.2972/2015 3 contended that, the prosecution failed to seize from the petitioner herein the mobile phone and the computer which were allegedly used for commission of crime. Relying on the list of documents, it was contended that the only incriminating evidence was the CDR produced by the uncle of the defacto complainant allegedly containing the sexual scenes. However, the certificate under section 65B of the Indian Evidence Act was not produced to prove its evidentiary value. Hence, the above CD was only a secondary evidence. That material was not sufficient for the prosecution to establish offences under sections 67 and 67A of the Information Technology Act. It was further contended that, without seizure and production of the mobile with which the photographs was allegedly taken and the computer with which scenes were morphed, no allegation can be established against the petitioner herein. It was stated that, only the mobile phone of the second respondent was produced, which was insufficient to fasten any criminal liability on the petitioner herein. It was further contended that, even from the admitted facts, ingredients of section 509 IPC were not made out. 5. Evidently, the only materials produced by the prosecution were the dresses worn by the defacto complainant, her photographs, mobile phone of the second accused and the CDR produced by the uncle of the defacto complainant. Evidently, the mobile phone allegedly Crl.M.C.No.2972/2015 4 used for taking the photograph and the computer which was used for morphing has also not been seized. It is seen from the records that, at the time of the questioning of the accused, he had disclosed that, he had lost his mobile phone and that he did not own or possess computer. The question that is to be considered is whether in the absence of the above materials and the inability of the prosecution to seize the above materials, the prosecution under sections 66 and 66B r/w section 509 IPC has to fail. Evidently, the mobile phone on which photographs were allegedly taken and the computer might have gone long way in supporting the prosecution case. However, it has to be ascertained whether the non production of it will weaken the prosecution case. 6. It seems that, the defacto complainant has given a statement that the first accused had taken her photograph. He later showed the victim, her photograph along with sexual photographs of others. She claimed that, she was shown those photographs by the first accused. According to her, the photograph of victim seen in the mobile was one taken by first accused. Other witnesses have seen the objectionable photographs. One person recorded it in a CD and produced in Court. Other evidences indirectly supporting these evidences are available on record. Having regard to the above materials and the quality of the evidence which is yet to be established by the police, it is too early at this stage, that too in a proceeding under Crl.M.C.No.2972/2015 5 section 482 of Cr.P.C to hold that the evidence collected is insufficient to prove the allegations. Whether it is sufficient is a matter within the realm of appreciation of evidence. 7. It is pertinent to note that, the CDR has been seized and produced. According to the uncle of the defacto complainant, objectionable photographs were morphed and sent by the petitioner herein. The data were recorded and handed over to the investigating agency in the CDR itself. Person who recorded the photograph from the mobile was also questioned. According to the learned counsel for the petitioner, CDR is not supported by certificate under section 65B of the Evidence Act and being an electronic evidence, hence CDR alone cannot be let in evidence nor relied on by the prosecution. 8. Learned counsel for the petitioner relied on the decision reported in **P.V.Anvar v. P.K.Basheer & Others (2014 (4) KLT 104),** wherein it was held that in an allegation of corrupt practice relating to speeches made which were fed into a computer and CDR taken thereof, CD cannot be admitted in evidence since mandatory requirement of section 65B of the Evidence Act was not satisfied. It was held that, if an electronic record as such is used as primary evidence under section 62 of the Evidence Act, the same is inadmissible in evidence without compliance of the conditions in section 65B of the Evidence Act. However, this has been explained in a subsequent decision of the Crl.M.C.No.2972/2015 6 Supreme Court in **Shafhi Mohammad v. the State of Himachal Pradesh(2018(2) KHC 80),** wherein, the Hon'ble Supreme Court has held that, applicability of the procedural requirement under section 65B of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by the party who was not in possession of a device, applicability of sections 63 and 65 of the Evidence Act could not be held to be excluded, it was held. 9. In the light of the above decision, I feel that the question whether CDR as such can be brushed aside at this stage on the ground that certificate under section 65 of the Evidence Act was not produced is doubtful. It is for the trial court to consider the evidentiary value and the reliability of the above documents. 10. It was vehemently contended by the learned counsel for the petitioner that, ingredients of section 509 IPC was not attracted. It seems that, section 509 IPC involves various manifestations of the acts of the person who commits the offence. It may include words spoken, making of any comment or gesture or exhibiting any object. Whether showing of objectionable photograph of victim to herself will fall within the scope of the Act is a matter to be considered in the course of Crl.M.C.No.2972/2015 7 evidence. Learned counsel for the petitioner relied on the decision in **Ramkripal v. State of Madhya Pradesh(2007(11) SCC 265)** to contend that section do not cover cases of this nature. In the above decision, the Supreme Court has held that what constitutes an outrage of female modesty is no where defined in the IPC. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. 11. Evidently, the case of the defacto complainant is that she was shown the objectionable photographs. Whether that constitute offence by itself is sufficient to constitute an offence under section 509 is a matter which is again in the realm of appreciation of evidence. It is to be done by the court below on the basis of the evidence gathered. 12. Having considered the above facts, I feel that it is too early at this stage to conclude that the evidence gathered by the prosecution is insufficient to establish the charges laid against the petitioner herein. Hence, I am not inclined to invoke the jurisdiction under section 482 Cr.P.C.to quash the criminal proceedings. Accordingly, the Crl.M.C.is dismissed. ## **-** Sd/ dpk **SUNIL THOMAS Judge** /true copy/ PS to Judge **.**