Excelsior Correspondent
Srinagar, Jan 12: Observing the prosecution must provide evidence to prove the publication or transmission of seized material, the High Court ruled that mere recovery of electronic devices is not sufficient to establish offence under Information Technology (IT) Act.
Justice Sanjay Dhar said that for proving an offence under the provisions of the Information Technology Act, it is incumbent upon the prosecution to collect and lead evidence showing publication or transmission, in electronic form, of material which is lascivious, appeals to prurient interest, or has the tendency to deprave and corrupt persons likely to read, see, or hear it.
The Court was hearing an appeal filed by the J & K UT challenging a judgment of acquittal passed by the Additional Sessions Judge whereby the accused persons had been acquitted of charges arising out of an FIR registered for multiple offences, including Section 67 of the Information Technology Act.
An FIR registered based on a complaint lodged by the prosecutrix alleging that two accused persons had trespassed into her house, administered intoxicating substances to her, committed sexual assault, and recorded and circulated videos of the alleged act through social media platforms and threats were extended to deter her from approaching the police, and that other accused persons were also involved.
Following registration of the FIR, an investigation was carried out, and electronic devices, including a mobile phone and a memory card, were seized and sent for forensic examination. Upon completion of the investigation, a charge sheet was filed alleging offences under various provisions of the Indian Penal Code, 1860, as well as Section 67 of the Information Technology Act, 2000.
Charges were framed against the accused, and the prosecution examined several witnesses, including the prosecutrix. During the trial, the prosecutrix in her statement denied having been subjected to sexual assault, stating that the videos she had seen were fake as such the accused were acquitted by the court below.
The prosecution preferred instant appeal against the acquittal contending that the trial court erred in not permitting the prosecution to lead further evidence, particularly in relation to the charge under Section 67 of the Information Technology Act, 2000.
Justice Dhar however, examined the evidence on record and noted that the foundation of the prosecution’s case with respect to sexual offences rested on the testimony of the prosecutrix, who had turned hostile and categorically denied the occurrence of sexual assault.
The court said that the prosecution was required to establish that the accused had published or transmitted, in electronic form, lascivious material, appealed to prurient interest, or tended to deprave and corrupt persons likely to access it.
“The investigation had failed to collect any material to demonstrate that the seized photographs or videos were actually published or transmitted through electronic means such as WhatsApp or Facebook, as alleged in the charge sheet”, the court observed.
In the absence of such evidence, the Court added, the essential ingredients of the offence under the Information Technology Act, could not be established even if the remaining prosecution witnesses had been examined, the charge under Section 67 of the Information Technology Act, 2000, could not have been proved in the absence of evidence demonstrating publication or transmission of the alleged material in electronic form.
The court concluded that there is no ground to interfere with the judgment of acquittal passed by the trial court and dismissed the appeal of prosecution.
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