Nanki Bai Sen Vs State Of Chhattisgarh and Anr.

Ramesh Kumar S/o Shri Faguha Chandrakar Aged About 37 Years R/o Village-Kurra, Police Chowki-Khandsara, Revenue District Bemetara, Civil District Bemetara C.G.

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--- Appellant

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Versus

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State of Chhattisgarh Through Police Chowki Khansara, Police Station Bemetara, Revenue District Bemetara C.G.Civil District Bemetara C.G.

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--- Respondent

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(Cause title taken from Case Information System)

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For Appellant in ACQA No.65/2013	: Ms. Sharmila Singhai, Senior Advocate assisted by Ms. Kanchan Kalwani, Advocate
For Appellant in CRA No.82/2014 and Respondent No.2 in ACQA No.65/2013	: Mr. Shobhit Koshta, Advocate
For State	: Mr. Ankur Kashyap, Deputy Government Advocate

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Hon'ble Smt. Rajani Dubey, Judge Hon'ble Shri Amitendra Kishore Prasad, Judge

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CAV Judgment

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Per Amitendra Kishore Prasad, J.

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1. Since both the Acquittal Appeal filed on behalf of the complainant and the Criminal Appeal preferred by the accused/appellant arise out of the same judgment passed by the learned trial Court, and as the issues involved in both the appeals are interconnected and based on the same set of facts and evidence, it was considered appropriate and in the interest of justice to hear them together. Accordingly, both the appeals have been clubbed, heard analogously, and are being disposed of by this common judgment.

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2. Acquittal Appeal No. 65/2013 has been preferred on behalf of the complainant assailing the legality, validity, and propriety of the judgment dated 07.08.2013 passed by the learned Additional Sessions Judge, Bemetara, Civil District Durg, Revenue District Bemetara, Chhattisgarh, in Sessions Trial No. 36/2012. By the said judgment, the learned Trial Court has acquitted respondent No. 2, namely Ramesh Kumar, of the charges punishable under Sections 342, 506-B, and 376 of the Indian Penal Code, 1860 (for short, ‘IPC’) and has convicted him only for the offence punishable under Section 67 of the Information Technology Act, 2000 (for short, ‘IT Act’). For the said conviction, the respondent

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No.2 has been sentenced to pay a fine of Rs. 50,000/-, and in default of payment of the fine amount, to further undergo simple imprisonment for a period of three months.

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3. Criminal Appeal No.82/2014 has been filed by the accused/appellant – Ramesh Kumar, challenging the legality, validity and propriety of very same judgment dated 07.08.2013 passed by the learned Additional Sessions Judge, Bemetara, Civil District Durg, Revenue District Bemetara, Chhattisgarh, in Sessions Trial No. 36/2012. By the said judgment, the learned trial Court has acquitted him for the charges punishable under Sections 342, 506-B, and 376 of the IPC and has convicted him only for the offence punishable under Section 67 of the IT Act and sentenced to pay a fine of Rs. 50,000/-, and in default of payment of the fine amount, to further undergo simple imprisonment for a period of three months.

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4. The case of the prosecution, in brief, is that the prosecutrix and the accused, Ramesh Kumar Chandrakar, belonged to the same village, Kurra, within the jurisdiction of Police Station Khandsara, District Bemetara. The accused had a borewell for water in his garden, and both he (PW-2) and his wife (PW-1) were engaged in work as boatmen during the “Chhatti” programme held in the said village.

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5. According to the prosecution, the prosecutrix (PW-1) had lodged a report at Police Station Khandsara, Bemetara, alleging that

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during the previous month of Jyeshtha , she had gone to the house of the accused, Ramesh Chandrakar, to fetch water. At that time, the accused was alone at home. Taking advantage of the situation, he had allegedly threatened her with a knife, compelled her to enter a room, and thereafter forcibly committed sexual intercourse with her against her will. It was further alleged that the accused had recorded the said act on a video camera and subsequently used that recording to threaten and coerce her into repeated acts of sexual abuse. When she resisted, he had threatened to make the video public and show it to the villagers and her husband.

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6. It was further alleged that the accused had in fact shown the said obscene video to certain villagers, and that one Rajnikant was also seen displaying the video clip to others. The husband of the prosecutrix, Sanat Sen (PW-2), came to know about the incident through this display, upon which the matter was reported to the police.

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7. On the basis of this report, Inspector A.S. Khan had registered a First Information Report (Ex. P-18) under Sections 342, 506-B, and 376 of the IPC and Section 67 of the IT Act. During investigation, a spot map (Ex. P-2) had been prepared by ASI Shivnandan Sahu, and another map (Ex. P-3) had been prepared by the Patwari, Manbodhi (PW-3). The prosecutrix was medically examined by Dr. Rajshree Devdhar (PW-14) after obtaining her

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consent Ex.P-4), and a report (Ex. P-13) was prepared. Dr. S.K. Sharma (PW-11) had examined the accused and submitted a report (Ex. P-11) confirming his capability to perform sexual intercourse.

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8. During the investigation, the prosecutrix’s cotton lehenga was seized (Ex. P-5), and an underwear belonging to the accused was seized (Ex. P-16). A mobile phone (model N-Nasaki M-3) containing the said video clip was also seized from the accused as per Ex. P-15. Further, a 2 GB memory card containing the video clip of the alleged incident was seized from Rajnikant on the statement of the prosecutrix’s husband, PW-2, who had retained it after obtaining it from Rajnikant (Ex. P-8).

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9. All seized articles were sent to the Forensic Science Laboratory (FSL) for examination, and the corresponding report was received. The accused was thereafter arrested (Ex. P-17), and intimation was given to his family members.

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10. Upon completion of investigation and after recording the statements of witnesses, a charge-sheet (No. 122/2012) was filed before the Court of the Chief Judicial Magistrate, Bemetara, for the offences under Sections 342, 506-B, and 376 of the IPC, and Section 67 of the IT Act.

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11. The case was subsequently committed to the Court of Sessions, where it was registered as Sessions Trial No. 36/2012. Charges were framed accordingly, to which the accused pleaded not guilty

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and claimed to be tried.

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12. In order to prove the above charges against the accused, a total of 21 witnesses have been examined by the prosecution being PW-1 to PW-21 and 21 documents have been exhibited being Ex. P-1 to Ex. P-21, contrary to which, on behalf of the defence, no defence witness has been examined, but he has exhibited 2 documents marked as Ex. D-1 and Ex. D-2. In his statement under Section 313 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), the accused denied all allegations, asserted his innocence, and stated that he had been falsely implicated. No defence evidence was adduced on his behalf.

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13. The learned trial Court after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment convicted and sentenced the accused / appellant – Ramesh Kumar for the offence punishable under Section 67 of the IT Act and acquitted him for the offence punishable under Sections 342, 506B and 376 of the IPC, against which, aforementioned Acquittal Appeal and Criminal Appeal have been filed by the respective parties i.e. the complainant and the accused.

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14. Ms. Sharmila Singhai, learned Senior Counsel assisted by Ms. Kanchan Kalwani, learned counsel for the complainant in Acquittal Appeal No. 65/2013, submitted that the learned trial Court erred in acquitting the respondent No.2 from the charges under Sections 342, 506-B, and 376 of the IPC and in convicting

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him only under Section 67 of the IT Act. It was argued that the impugned judgment suffers from gross misappreciation of the oral and documentary evidence available on record and that the learned Court below failed to properly evaluate the testimony of the prosecutrix, which by itself was sufficient to warrant conviction under Section 376 IPC. It is submitted that the prosecutrix (PW1), in her clear and categorical testimony, had deposed that on the date of the incident, the accused/respondent No. 2 forcibly committed sexual intercourse with her in his house by threatening her at knife-point.

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15. Learned Senior Counsel contended that it is a well-settled proposition of criminal jurisprudence that the sole testimony of the prosecutrix, if found to be reliable and trustworthy, does not require any corroboration, and a conviction can be safely founded upon it. In this regard, reliance was placed on the judgment of the Hon’ble Supreme Court in State of Punjab v. Gurmit Singh and Others, (1996) 2 SCC 384 , particularly paragraphs 8, 17, and 21, wherein it was held that the evidence of a victim of sexual assault stands on a par with that of an injured witness and should not be disbelieved merely on the ground of lack of corroboration.

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16. Ms. Singhai further submitted that the learned trial Court failed to appreciate the circumstances leading to the delay in lodging the FIR. It was contended that in cases involving the offence of rape, delay in reporting the matter to the police is a common and

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natural phenomenon owing to the social stigma, fear, and trauma suffered by the victim. The prosecutrix, being a married woman residing in a small village, was initially hesitant to expose the incident to the public gaze due to the fear of humiliation and loss of dignity. Thus, the delay of approximately six months in lodging the FIR was sufficiently explained and ought not to have been used to doubt the credibility of the victim. In support of this submission, reliance was placed on Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74 .

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17. It is urged by Ms. Singhai that the prosecution had clearly established that the accused/respondent No. 2 had recorded a video of the act of rape without the knowledge or consent of the prosecutrix and later used the same to blackmail her continuously for repeated sexual exploitation. Even assuming, without admitting, that the prosecutrix had initially consented to sexual relations, such consent, if obtained by putting the victim under threat of exposure through such a video recording, cannot be regarded as free consent in the eyes of law. Therefore, the acts of the accused/respondent No. 2 clearly amounted to sexual intercourse obtained under coercion and threat, attracting the rigour of Section 376 IPC.

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18. Learned Senior Counsel also contended that the finding of the learned trial Court regarding the alleged non-compliance of Section 65-B of the Indian Evidence Act, 1872, was erroneous. It

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was argued that the seized memory card (Ex. P-6) and mobile phone (Ex. P-15), being the original devices containing the primary electronic record, were duly exhibited and examined by the expert witness, A.L. Chaturvedi (PW-21). Hence, the requirement of a certificate under Section 65-B was not applicable. In support of this submission, reliance was placed on the judgments of the Hon’ble Supreme Court in Vikram Singh v. State of Punjab, (2017) 8 SCC 518 (para 26) , and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and others, (2020) 7 SCC 1 (paras 32–34) , which categorically held that when the primary electronic evidence itself is produced before the Court, the certificate under Section 65-B of the IT Act is not mandatory.

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19. It is further submitted by Ms. Singhai that the learned trial Court, while acquitting the respondent No.2 under Section 376 IPC, failed to appreciate the evidence in its proper perspective and did not assign any cogent reason for disbelieving the consistent, natural, and reliable testimony of the prosecutrix. It is argued that the conduct of the prosecutrix throughout the proceedings had remained consistent, and her evidence was duly corroborated by the medical report (Ex. P-13), the forensic evidence, and the recovery of the mobile phone and memory card containing the incriminating video recording.

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20. In conclusion, learned Senior Counsel for the complainant urged that the impugned judgment, to the extent it acquitted the respondent No. 2 of the charge under Section 376 IPC, deserved to be set aside. It is prayed that, in view of the overwhelming oral and documentary evidence on record and the legal principles settled by the Hon’ble Supreme Court, the acquittal be converted into conviction under Section 376 IPC, as held in Lok Mal alias Loku v. State of Uttar Pradesh, (2025) 4 SCC 470 .

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21. On the other hand, Mr. Shobhit Koshta, learned counsel appearing for respondent No. 2 in Acquittal Appeal No. 65/2013 and appellant in Criminal Appeal No. 82/2014, opposed the aforesaid submissions advanced by learned counsel for the complainant and submitted that the learned Trial Court had rightly appreciated the evidence on record while acquitting the accused of the charges under Sections 342, 506-B and 376 of the IPC. It was contended that the conviction of the accused under Section 67 of the IT Act, however, was wholly unsustainable in law and fact. He further submitted that the learned trial Court, in paragraph 43 of the impugned judgment, had convicted the appellant for the offence under Section 67 of the IT Act solely on the basis of the memory card (Ex. P-6) alleged to have been seized from the custody of PW-2, Sanat Sen (husband of the prosecutrix). The said memory card was purported to contain a video recording of the alleged sexual intercourse between the accused and the prosecutrix.

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22. Mr. Koshta argued that such electronic evidence was inadmissible in the absence of the mandatory certificate required under Section 65-B(4) of the Indian Evidence Act, 1872. It is further pointed out that the memory card in question had been seized by the investigating officer from PW-2 Sanat Sen, who himself had admitted in paragraph 3 of his deposition that he had obtained it from PW-5 Rajnikant, after finding him showing the said video clip to other persons. PW-5 Rajnikant, on the other hand, had stated in his evidence that he had found the said video in a Chinese-made mobile phone which he had purchased from PW-9 Hulas Das Manikpuri. However, PW-9 Hulas Das Manikpuri had categorically denied having sold any such mobile phone to PW-5 Rajnikant. He submitted that in view of the aforesaid admitted facts, there was no legal or credible evidence on record to establish that the alleged mobile phone ever belonged to the accused or that it was in his possession at any point of time. It was further contended that the said mobile phone was never seized by the investigating agency, and therefore, the primary electronic device was not produced before the Court. In the absence of such primary evidence, the memory card allegedly extracted from that mobile phone could, at best, be treated as secondary evidence , which would not be admissible without compliance of Section 65-B(4) of the Evidence Act.

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23. In support of his submission, learned counsel placed reliance upon the judgment of the Hon’ble Supreme Court in Arjun

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Panditrao Khotkar (supra) wherein it was clearly held that the production of a certificate under Section 65-B(4) is mandatory when electronic evidence is sought to be admitted in secondary form, i.e., when the original device is not produced before the Court. The relevant portion of paragraph 73 of Arjun Panditrao Khotkar (supra) was referred to, wherein it was held that the required certificate under Section 65-B(4) is unnecessary only if the original document or device itself is produced and proved by the owner or operator of the same. However, in cases where such original device is not produced, compliance with Section 65B(4) becomes mandatory.

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24. Reliance was also placed on the decision of the Hon’ble Supreme Court in State by Karnataka Lokayukta Police Station, Bengaluru v. M.R. Hiremath, (2019) 7 SCC 515 , wherein it was observed that electronic records are highly susceptible to manipulation and alteration, and therefore, safeguards under Section 65-B(4) are essential to ensure authenticity and reliability.

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25. Mr. Koshta submitted that in the present case, the prosecution had neither seized nor produced the original mobile phone alleged to have contained the video clip, nor was any certificate under Section 65-B(4) produced to establish the authenticity of the memory card (Ex. P-6). The investigating officer A.L. Chaturvedi (PW-21) himself admitted that the mobile device was not recovered from the accused. Hence, the contents of the

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memory card constituted secondary electronic evidence, which was inadmissible in the absence of the requisite certificate.

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26. In view of the aforesaid legal position, it is submitted that the conviction of the appellant under Section 67 of the IT Act based solely on such inadmissible electronic evidence, was patently illegal, perverse, and contrary to the settled principles of law. It was, therefore, prayed that the conviction recorded by the learned trial Court under Section 67 of the IT Act be set aside, and the appellant be acquitted of all charges.

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27. Mr. Ankur Kashyap, learned Deputy Government Advocate, submitted that the learned trial Court had rightly appreciated the evidence available on record and convicted the appellant under Section 67 of the IT Act, as the memory card containing the video was duly seized and proved during trial. He contended that there was sufficient material to establish the appellant’s guilt and no interference was warranted with the well-reasoned judgment of conviction.

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28. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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29. The pivotal question that arises for consideration in the present appeals is whether the learned trial Court was justified in convicting the appellant for the offence punishable under Section 67 of the Information Technology

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Act, 2000, and at the same time acquitting him of the offences punishable under Sections 342, 506-B, and 376 of the Indian Penal Code, 1860 ?

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30. The learned trial Court, while acquitting the appellant of the offences punishable under Sections 342, 506-B, and 376 of the IPC has held that the prosecution had failed to prove the charges beyond reasonable doubt. The Court observed that there was a significant delay of about six months in lodging the First Information Report, and no satisfactory explanation was offered for such delay. This delay, according to the Court, cast serious doubt on the veracity of the prosecution story.

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31. The Court further observed that the medical examination of the prosecutrix revealed no external or internal injuries on her body, nor were any signs of forcible sexual intercourse found. The forensic science laboratory report (Ex. P-21) also did not indicate the presence of semen stains or human sperm on the clothes of either the prosecutrix or the accused, thereby failing to corroborate the allegation of rape.

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32. The trial Court also took note of the conduct of the prosecutrix as reflected in the video clippings retrieved from the memory card. It found that in all three video clips, the prosecutrix did not appear to resist or show any signs of fear or struggle; rather, her demeanor suggested that the act was consensual. The fact that the prosecutrix continued to remain silent for several months and

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disclosed the alleged incident only after her husband saw the video further weakened the prosecution’s case.

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33. The learned trial Court also pointed out inconsistencies and contradictions in the statements of material witnesses, particularly regarding how the video came into circulation and how the mobile phone and memory card were recovered. The knife allegedly used for intimidation was never recovered, and there was no independent witness to support the allegations of wrongful confinement or criminal intimidation.

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34. In view of these cumulative deficiencies in the prosecution evidence, and relying upon judicial precedents such as Narsingh Ram v. State of Chhattisgarh (2013 (2) CGLJ 213), Natwar Dewangan v. State of Chhattisgarh (2006 (3) CGLJ (Supp 198), and Parasram v. State of Chhattisgarh (2010 (2) CGLJ 1) , the trial Court came to the conclusion that the prosecutrix was a consenting party to the sexual acts and that the prosecution had failed to prove the essential ingredients of the offences under Sections 342, 506-B, and 376 IPC. Consequently, the appellant was acquitted of the said charges.

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35. The acquittal appeal challenges the acquittal by the learned trial Court under Section 372 Cr.P.C. While exercising appellate jurisdiction, the Court must act with caution, recognizing that the trial Court has the advantage of observing witness demeanour and assessing credibility firsthand. The accused is entitled to the

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benefit of doubt, but only if it is real and substantial, such as a doubt a reasonable person would honestly entertain. Mere theoretical doubts or minor discrepancies not affecting the core prosecution case cannot justify acquittal. The appellate Court must ensure the trial Court properly appreciated all evidence and extended the benefit of doubt in line with settled principles.

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36. As held by the Supreme Court in C. Antony v. Raghavan Nair, AIR 2003 SC 182 , and Ramanand Yadav v. Prabhunath Jha, AIR 2004 SC 1053 , an appellate Court should not substitute its own view unless the trial Court’s findings are perverse or relevant, convincing evidence has been unjustifiably ignored, providing compelling reason for interference.

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37. The principles in Tota Singh and another v. State of Punjab, AIR 1987 SC 1083 , clarify that while an appellate Court can examine an acquittal, it must do so cautiously. The trial Court has the advantage of observing witnesses and assessing credibility. Interference is warranted only if the trial Court committed a manifest error, ignored material evidence, or reached a conclusion based on conjecture or misappreciation. Minor discrepancies cannot outweigh the core, consistent, and credible testimony unless they go to the root of the case. Interference is justified only in exceptional circumstances where failure to do so would result in a miscarriage of justice and held in para 6 as under:-

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“……….the mere fact that the Appellate Court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere within an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous.”

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38. In State of Rajasthan Vs. Kistoora Ram, 2022 SCC OnLine SC

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984 , the Supreme Court held that an appellate Court must exercise extreme caution before interfering with an acquittal. The trial Court’s advantage in observing witness demeanour and trial conduct cannot be lightly disregarded. Interference is warranted only in exceptional cases—where the trial Court committed a manifest error, overlooked material evidence, relied on conjecture, or reached a palpably perverse conclusion. Minor contradictions or inconsistencies not affecting the core prosecution case cannot justify acquittal. Thus, while an appellate Court may review an acquittal, it must do so circumspectly,

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extending the benefit of doubt only when a reasonable and substantial doubt exists and has held as follows:-

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" 8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all. "

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39. Further, in the matter of Jafarudheen and others v. State of

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Kerala, (2022) 8 SCC 440 , the Supreme Court held as under:-

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"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC. the Appellate Court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

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40. While exercising appellate jurisdiction against an acquittal, the

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Court may re-appreciate all evidence such as, oral and documentary, to determine whether the trial Court correctly weighed the materials and assigned valid reasons. If the trial

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Court’s conclusions are unsustainable, erroneous, or perverse, the appellate Court may arrive at its own conclusion.

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41. Applying these principles, we have examined the prosecution evidence in its entirety, considering witness credibility, consistency of statements, and logical inferences from proved facts.

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42. The prosecutrix (PW-1), in her examination-in-chief, deposed that she was acquainted with the accused, Rameva Drakar, who was a resident of her village. She stated that the incident took place around the month of Phalgun , approximately six months prior to the lodging of the report at Police Station Patna. According to her, there was an acute water shortage in the village, and there existed a borewell for water in the garden belonging to the accused. To reach that borewell, one had to pass through the house of the accused. On the date of the incident, she went alone to fetch water from the borewell situated in the accused’s garden. At that time, the accused was alone in his house. She further deposed that the accused threatened her with a knife, forcibly took her inside his room, and committed rape upon her against her will. The prosecutrix stated that the accused had also threatened to kill her husband if she disclosed the incident to anyone. She asserted that she understood the meaning of rape and described that the accused forcibly removed her clothes as well as his own and committed sexual intercourse despite her

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resistance. She added that after committing the act, the accused threw her out of the house and again threatened her with dire consequences should she reveal the matter to anyone.

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43. The prosecutrix (PW-1) further stated that she did not disclose the incident for about six months due to fear of the accused. Later, her husband came to know that the accused had made a video of the incident and was circulating it among the villagers. Upon being confronted by her husband, she narrated the entire incident to him, following which a written report was lodged at Police Station Patna. She identified her thumb impressions on the written report (Ex. P/1), the spot map prepared by the police (Ex. P/2), the Patwari map (Ex. P/3), and the consent letter for her medical examination (Ex. P/5). She also confirmed that the police had seized her lehenga worn at the time of the incident and prepared the seizure memo (Ex. P/6), bearing her thumb impression. She stated that she was medically examined and had given a similar statement to the police during investigation.

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44. In her cross-examination, several material contradictions and omissions emerged. She admitted that there was a delay of nearly six months in lodging the report and that she had continued to visit the accused’s garden even after the alleged incident. She also admitted that many villagers used to fetch water from the accused’s borewell and that screams from the accused’s house could be heard in the surrounding houses. She

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stated that she did not raise an alarm as the accused had threatened her with a knife. She further admitted that she had no injuries on her body and that she continued her normal marital life for several months after the alleged incident. She also conceded that she had not seen the accused taking any photographs or recording any video with her own eyes.

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45. Certain contradictions were also noticed regarding her clothing and conduct after the alleged incident, as she admitted washing and reusing the same clothes for several months. She denied the defence suggestion that her husband and one Jagdish Chandrakar had falsely implicated the accused with an intention to extort money from him.

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46. Overall, her deposition revealed significant inconsistencies concerning the time, manner, and circumstances of the alleged occurrence.

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47. Likewise, Dr. Smt. Rajshri Devdhar (PW-12) has deposed that she was posted as a Medical Officer at the Government Hospital, Bemetara, since the year 2000. On 15.02.2012 at about 2:00 p.m., she medically examined the prosecutrix, Nankibai Sen, aged about 35 years, who was brought by Constable Reena Gaikwad. The prosecutrix was a married woman with five children and had undergone sterilization. On examination, no external or internal injuries were found on her body, and her uterus was of normal size. In her opinion, there was no evidence suggestive of

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recent sexual intercourse or forcible rape. She proved her medical report as Ex. P/13 and stated that the petticoat sent for examination contained some whitish stains. In cross-examination, she admitted that no signs of restraint were found on the body and that similar stains could also be present on the clothes of a married woman living with her husband.

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48. Upon an overall appreciation of the evidence on record, this Court finds that the learned trial Court had meticulously evaluated both the oral and documentary evidence and assigned cogent and convincing reasons for acquitting the respondent No.2 of the charges under Sections 342, 506-B, and 376 of the IPC. The testimony of the prosecutrix (PW-1), though detailed, suffers from material contradictions, omissions, and improvements which materially affect her credibility. The significant delay of about six months in lodging the FIR, unexplained by any satisfactory reasoning, coupled with her continued visits to the accused’s premises even thereafter, casts serious doubt on the veracity of her version.

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49. The medical and forensic evidence on record does not lend any corroboration to the charge of rape. The medical examination of the prosecutrix revealed no external or internal injuries on her body, nor any sign suggestive of recent forcible sexual intercourse. The forensic report also did not detect the presence of semen or human sperm on her clothes. The absence of such

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corroborative evidence, though not by itself decisive, when taken in conjunction with the inconsistent and unreliable testimony of the prosecutrix, renders the prosecution version doubtful.

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50. The electronic evidence forming the basis of conviction under Section 67 of the Information Technology Act, namely the memory card (Ex. P/6), was proved to have been recovered not from the possession of the accused but through multiple hands, PW-2 Sanat Sen, PW-5 Rajnikant, and PW-9 Hulas Das Manikpuri creating a serious break in the chain of custody. Moreover, the original mobile phone alleged to have contained the video was never seized or produced before the Court. In the absence of such primary evidence and in the further absence of a certificate under Section 65-B(4) of the Indian Evidence Act, the memory card can only be treated as secondary electronic evidence, which is inadmissible in law. The trial Court’s reliance upon such evidence to convict the accused under Section 67 of the IT Act was, therefore, legally unsustainable.

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51. It is well settled that in an appeal against acquittal, the appellate Court does not ordinarily interfere with the findings of the trial Court unless they are perverse, manifestly illegal, or based on a complete misappreciation of evidence. As reiterated by the Hon’ble Supreme Court in Tota Singh (supra) and Jafarudheen (supra), if two views are reasonably possible on the evidence, the view which favours the accused must prevail. In the present case,

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the view taken by the learned trial Court is a plausible and wellreasoned one, based on proper appreciation of evidence and settled legal principles.

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52. The case laws relied upon by the learned Senior Counsel for both the complainant and the appellant—namely Gurmit Singh (supra), Raghubir Singh (supra), Chhotey Lal (supra), Phool Singh (supra), and Lok Mal @ Loku (supra) are of no help in the present case. In all the aforesaid decisions, the Hon’ble Supreme Court upheld the conviction of the accused persons on the basis of consistent, trustworthy, and corroborated testimony of the prosecutrix, supported by medical and forensic evidence, and in cases where any delay in lodging the FIR was satisfactorily explained.

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53. However, the factual matrix of the present case is entirely distinguishable. Here, there exists an unexplained delay of nearly six months in lodging the FIR; the medical report does not indicate any sign of sexual assault or resistance; and the prosecution witnesses, including the prosecutrix, have made material contradictions and omissions in their statements. Moreover, the conduct of the prosecutrix and absence of corroborative evidence render her version doubtful. In such circumstances, the ratio of the judgments relied upon by the learned Senior Counsel cannot be applied to the facts of this

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case, and hence, those precedents are of no assistance to either side.

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54. Accordingly, this Court finds no perversity, illegality, or material irregularity in the findings recorded by the learned trial Court either in acquitting the respondent No.2 of the offences under Sections 342, 506-B, and 376 IPC or in the appreciation of the evidence led by the prosecution.

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55. In the matter of M.R. Hiremath (supra), the Hon’ble Supreme Court while dealing with Section 65 of the IT Act, has held as follows :-

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“13. The fundamental basis on which the High Court proceeded to quash the proceedings is its hypothesis that Section 65B, which requires the production of a certificate for leading secondary evidence of an electronic record mandate the production of such a certificate at this stage in the absence of which, the case of the prosecution is liable to fail. Section 65B reads as follows :

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“Section 65(B). Admissibility of Electronic Records(1) Notwithstanding anything contained in this 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or any fact stated therein of which direct evidence would be admissible.

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(2) The conditions referred to in the Sub-section (1) in respect to the computer output shall be following, namely:

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(a) the computer output containing the information was produced by computer during the period over which computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of computer.

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(b) during the said period the information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities.

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(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation for that part of the period, was not such to affect the electronic record or the accuracy of its contents; and

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(d) The information contained in the electronic record reproduces or is derived from such information fed into computer in ordinary course of said activities.

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(3) Where over any period, the function of storing and processing information for the purposes of any activities regularly carried on over that period as mentioned in Clause (a) of Sub-section (2) was regularly performed by the computers, whether-

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(a) by a combination of computer operating over that period, or

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(b) by different computers operating in succession over that period; or

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(c) by different combinations of computers operating in succession over that period; or

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(d) in any other manner involving successive operation over that period, in whatever order, of one

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or more computers and one or more combinations of computers,

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all the computers used for that purpose during that period shall be treated for the purpose of this section as constituting a single computer and any reference in the section to a computer shall be construed accordingly.

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(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

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(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

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(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

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(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

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and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

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(5) For the purposes of this section,—

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(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

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(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in

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28

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the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

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(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

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Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”

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14. The provisions of Section 65B came up for interpretation before a three judge Bench of this Court in Anvar P.V. v. P.K. Basheer⁵ . Interpreting the provision, this Court held :

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“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.”

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15. Section 65B(4) is attracted in any proceedings “where it is desired to give a statement in evidence by virtue of this section”. Emphasising this facet of sub-section (4) the decision in Anvar holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence. This is clarified in the following extract from the judgment :

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“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

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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.”

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(emphasis supplied)

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16. The same view has been reiterated by a two judge Bench of this Court in Union of India v. CDR Ravindra V Desai⁶ . The Court emphasised that nonproduction of a certificate under Section 65B on an earlier occasion is a curable defect. The Court relied upon the earlier decision in Sonu alias Amar v. State of Haryana, in which it was held :

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“The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency.”

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(emphasis supplied)

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17. Having regard to the above principle of law, the High Court erred in coming to the conclusion that the failure to produce a certificate under Section 65B(4) of the Evidence Act at the stage when the charge-sheet was filed was fatal to the prosecution. The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise.”

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56. Reverting to the facts of the case in the light of M.R. Hiremath

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(supra) as well as having carefully considered the evidence on record, the findings of the learned trial Court, and the legal principles governing the admissibility of electronic evidence, this Court is of the considered view that the conviction of the

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appellant under Section 67 of the IT Act, cannot be sustained. The prosecution has failed to establish the essential foundational facts to render the electronic record admissible in evidence. The memory card (Ex. P-6), which formed the sole basis of conviction, was never shown to have been recovered from the possession or control of the appellant, and the primary device (mobile phone) allegedly containing the incriminating video was not seized or produced before the Court. The chain of custody stands broken, and the prosecution did not produce the mandatory certificate under Section 65-B(4) of the Indian Evidence Act, 1872, to prove the authenticity and integrity of the electronic record.

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57. In view of the settled legal position enunciated by the Hon’ble Supreme Court in Arjun Panditrao Khotkar (supra) as well as M.R. Hiremath (supra) as also compliance with Section 65-B(4) of the IT Act, is a mandatory precondition for the admissibility of secondary electronic evidence. In the absence of such compliance, no conviction can rest upon the contents of an electronic record.

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58. Accordingly, the conviction of the appellant for the offence punishable under Section 67 of the Information Technology Act, 2000, as recorded by the learned trial Court, is found to be legally unsustainable and is hereby set aside. The appellant is acquitted of the said charge. The acquittal of the appellant for the offences

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under Sections 342, 506-B, and 376 of the IPC, as recorded by

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the learned trial Court, is affirmed.

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59. In the result, and for the reasons stated hereinabove, this Court finds no merit in the acquittal appeal filed by the complainant. The learned trial Court has rightly appreciated the evidence on record and has correctly acquitted the respondent No.2 of the offences punishable under Sections 342, 506-B, and 376 of the Indian Penal Code, 1860. The findings of the trial Court on these counts are based on a proper appreciation of facts, consistent judicial reasoning, and do not suffer from any perversity or illegality warranting interference by this Court. Accordingly, the Acquittal Appeal No. 65/2013 stands dismissed .

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60. However, in view of the discussion made hereinabove regarding the inadmissibility of the electronic evidence forming the sole basis of conviction under Section 67 of the Information Technology Act, 2000, this Court finds sufficient ground to interfere with the conviction recorded by the learned trial Court. The prosecution has failed to prove the necessary foundational facts and to comply with the mandatory requirements under Section 65-B of the Indian Evidence Act, 1872, for admitting the memory card (Ex. P/6) in evidence. As a result, the conviction of the appellant under Section 67 of the IT Act cannot be sustained.

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61. Consequently, the Criminal Appeal No.82/2014 , preferred by the accused/appellant, is allowed . The judgment of conviction and

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order of sentence dated 07.08.2013, passed by the learned Additional Sessions Judge, Bemetara, Civil District Durg, Revenue District Bemetara, Chhattisgarh in Sessions Trial No.36/2012, convicting the appellant under Section 67 of the Information Technology Act, 2000, is hereby set aside, and the appellant is acquitted of all charges. The fine amount, if already deposited by the appellant, shall be refunded to him forthwith. His bail bonds shall stand discharged.

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62. The Registry is directed to transmit a certified copy of this judgment along with the trial Court record to the Court concerned forthwith for its information and necessary compliance.

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Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge

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Yogesh

Nanki Bai Sen v. State Of Chhattisgarh and Anr.

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