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This article is written by Poornima Animi, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).

Introduction   

Cybercrime is defined as a crime committed by using a computer, phone, or any other electronic device as a tool. Cyberstalking is one such major crime. The word “Stalking” means “to pursue or approach stealthily.”  Cyberstalking refers to harassing or threatening someone by using electronic communication like emails, social media, messaging apps, etc. It can target individuals, groups, or an organisation. 

In this article, we will read about cyberstalking in light of the following case State (cyber cell) v Yogesh Pandurang Prabhu (2009) which was presided over by Justice Shri M.R. Natu, Chief Metropolitan Magistrate, Court of Mumbai. This case deals with the offence punishable under Section 509 of Indian Penal Code, 1860 r/w Sections 67 and 67A of Information Technology Act,2000. The present case discusses sending obscene materials by email. Yogesh was accused of cyberstalking by sending obscene emails to a reporter. He was punished under Section 509 of the IPC and Section 66E of IT Act, 2000 but not under Sections 67 and 67A of IT Act, 2000.  Let us further study the facts of the case and the judgment given by the court.

Facts of the case

  • Sonali Asoka Sawai lodged a report in Cyber Cell, Mumbai. The reporter had been working in Diebold Systems Private Limited, since Feb 2009. The company provided laptops, data cards and other such necessary items to its employees. Before that, she worked at  Mahindra and Mahindra where she used to use a particular email ID and also had an Orkut Profile. 
  • The reporter contacted the accused -Yogesh Prabhu, who was working in the Wam Bombay Company through this website and became friends. They met each other face to face and after some time they decided to get married. But, later the reporter refused the accused’s proposal due to his behaviour and they broke up and after that the reporter also unfriended the accused on Orkut.
  • On 03-03-2009, the reporter opened her email account and found that she had received an email from an ID  which was unknown to the reporter. When she opened that email, she found vulgar comments in it and ignored that mail. The next day, she opened the email account at 11 p.m and found another email with similar content. She further found  the same style of emails with vulgar comments about her dated 05-03-2009,06-03-2009 and 08-03-2009. Those emails consisted of nude photographs and pornographic material. The reporter took printouts of those emails and filed a complaint in the cyber cell on 09-04-2009.
  • The police proved that emails were sent by the accused and that he had created a fake email ID to send those offensive emails to the reporter and the police registered a complaint against him.
  • The case was taken up by a cyber cell Investigating Officer Mukund Gopal Pawar. After the accused was found guilty the investigating officer recorded the disclosure statement and also seized the laptop of the accused and sent that laptop to the computer forensic expert (Sonali Mistry). The police discovered that the accused was the perpetrator  of the crime and submitted a charge sheet in court.
  • Charges were brought against the accused for offences punishable under Section 509 IPC and Sections 67 and 67A of the Information Technology Act, 2000.
  • In the court, the defendant argued that this was not an offence as it was not done physically. It was done through the web using email, there was no eye witness for this offence.
  • Both the parties pointed out that this offence completely  depended on circumstantial evidence.

In the  case Jawaharlal Das vs State of Orissa, the Hon’ble Supreme Court had decided  that; when we take circumstantial evidence as the evidence of an offence, it must satisfy three conditions:

1. While proving the guilt of an accused, the circumstances that led towards his guilt need to be established beyond reasonable doubt.

2.  The circumstances should have a definite tendency to prove the guilt of an accused.

3. Take all the circumstances cumulatively and they should form a chain of that offence and there should be no chance to escape from the conclusion. 

Similarly, in the case of  Hanumant vs State of Madhya Pradesh, and State of  Uttar Pradesh vs Ashok Kumar Srivastava, the court said that the chain of circumstances fully established and all the facts should be constituted only with the hypothesis of the guilt of an accused.

  • Sections 67and 67A of the IT Act, 2000 were not proven by the police but it came under the violation of the privacy of women under Section 66E of the IT Act, 2000 and also Section 509 of Indian Penal Code and the punishments enumerated under these Acts.

Detailed analysis of the case

  • The key actors of this case were Sonali Sawai (reporter & P.W.1), Anil Vishnu Mandoskar (employer of accused and P.W.5), Sonali Mistry (Forensic Expert & P.W.7), Kundan Raut(P.W.4), Ashutosh Singh (Colleague of accused & P.W.6) and Mukund Gopal Pawar (Investigating Officer & P.W.8) and the important witnesses of this case were reporter, Investigating Officer (P.W.8) and Forensic Expert (P.W.7) and P.W.4 turned hostile.
  • The trial began in the court and the prosecution said that the accused had created a fake id in the name of the reporter, put her phone number on the profile and also uploaded obscene photos in them. The reporter started receiving calls from the taxi drivers, rickshaw drivers making inappropriate advances because of the phone number that was uploaded on the profile.
  • P.W.8, investigating Officer Mukund Gopal Pawar, trained in cyber law, computer forensic and ethical hacking provided evidence of the fake email ID [email protected] by sending it to the Google server in the US  and issued a request for details of the ID. The server sent all the information about gave data for the 12 IP addresses belonging to Airtel and 2 IP addresses belonging to TATA Communications 
  • He found the physical address of the 2  IP addresses and called the reporter to ask if she was familiar with this address, she said that accused was working in this company and he travelled throughout  India for work purposes. 
  • They verified all the information related to that report and registered a case in Shivaji Park P.S. for the offence under Section 509 of Indian Penal Code, 1860 and Sections 67 and 67A of the Information Technology Act, 2000.
  • The investigating officer went to the company and asked Anil Maduskar about the accused. Anil confirmed that the accused was an employee of his company and he travelled throughout India for company purposes and also he said that they provided a laptop, mobile and internet connection to him. 
  • The investigating officer Mukund Gopal Power(P.W.8) investigated the accused and seized the laptop. The laptop was sent to the computer forensic lab for further research. Police proved that the emails were sent by the accused.
  • Forensic expert Sonali Mistry (P.W.7) made certain discoveries using the hard disk. She prepared a mirror copy of the hard disk and saw that the hash value of the original hard disk and mirror copy were the same, then she recovered the deleted emails from the internet access history and found that they were all of the same hash value. The hard disk played the main role in this case. 
  • However, there was not enough evidence provided by the police that the accused created the profiles used for the publishing of obscene sexual images and phone numbers of the reporter. So, the offence under Sections 67 and 67A of IT Act, 2000 was not proved but was established under section 66E as the accused insulted the privacy of the reporter. Therefore, the accused was punished under the said Act. 

The decision of the court

After hearing  the arguments of both the parties, the court gave an order that the accused be punished under Section 509 of  IPC,1860 and also Section 66E of IT Act, 2000 vide Section 248(2) of Criminal Procedure Code as follows:

  1. Under Section 509 of IPC,1860 that the accused was punished with simple imprisonment for 1 month and a fine of Rs.5,000/
  2. Under Section 66E of IT Act, 2000, the  accused was punished with simple imprisonment for 3 months and a fine of Rs.10,000/- in default to suffer simple imprisonment for 2 months.
  3. Both the sentences should run concurrently.
  4. The hard disk shall be returned to the managing director of WamBombay Company 

Conclusion

In this case, the accused was rightly convicted under Section 509 of Indian Penal Code, 1860 and Section 66E of Information Technology Act, 2000. The right to privacy comes under Article 21. The present act is not strong enough to deal with cases of cybercrime where one’s dignity and privacy are put into question. The acts must be amended, keeping the gravity of the crime in mind. Along with this, it is crucial to pay attention to awareness generation in the field of cybercrime to ensure that people, as done in this case, take action against harassment.

References


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