RAJENDRA CHANDRA SINGH SAMANT, J.

1. This appeal has been preferred against the judgment of conviction and order of sentence dated 05-11-2014 passed in Special Sessions Trial No.11/2013 by the Special Judge (Atrocities) North Bastar Kanker, C.G., convicting the appellant under Section 67 of the Information Technology Act, 2000 and sentencing him with R.I. for 02 years and fine of Rs. 25,000/- with default stipulation.

2. The prosecution case, in brief, is this, that the prosecutrix (PW-1) went missing in December, 2012. Father of the prosecutrix Dayaluram Sahare (PW-3) lodged a missing report on 31-12-2012. While the father of the prosecutrix and others were searching the prosecutrix (PW-1), Sanjay Mahavir (PW-4) informed that one obscene MMS has been prepared of the prosecutrix which was also shown to them. The FIR, Ex.-P/25 was lodged in Police Station Kanker, in which, the offence was registered under Section 67 of the Information Technology Act. Later on the prosecutrix was found in Delhi who was recovered and she gave statement, that in November, 2012, the appellant had by inducement and by giving allurement that he will get her appointed to some job and get her a house, had physical relation with her and despite objection of the prosecutrix he prepared one obscene MMS of that act. The prosecutrix belongs to Scheduled Tribe. The investigation was done in this case, in which, seizure of mobile and chips were made from the prosecutrix and seizure of some articles were made from the appellant. After completion of the investigation charge sheet was filed before the concerned Court.

3. The appellant was charged with offence under Section 376 of the IPC, Section 3(1)(xii) and 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 67 of the Information Technology Act, 2000, to which he denied and prayed for trial.

4. The prosecution examined as many as 15 witnesses. After completion of the prosecution evidence, the appellant was examined under Section 313 of the Cr.P.C., in which he denied the incriminating evidence against him, pleaded innocence and false implication. No witness was examined in defence.

5. After completion of the trial, the impugned judgment has been passed wherein the appellant has been convicted and sentenced as aforementioned. However, the appellant has been acquitted of charges under Section 376 of the IPC, Section 3(1)(xii) and 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

6. It is submitted by learned counsel for the appellant that there is no evidence of prosecution to support the conviction of the appellant under Section 67 of the Information Technology Act. There is no evidence present that the appellant was the person who published or transmitted the obscene material in any social networking website. No seizure of any electronic equipment has been made from possession of the appellant in the investigation to show that the same was used for publishing or circulating the obscene material. The micro SD card containing obscene material has been seized from the possession of witness Sanjay Mahavir (PW-4) and he had not made any statement, that from where he obtained that micro SD card. Hence, even if it is assumed that the MMS of obscene material in connection with the prosecutrix was circulated or published, it cannot be said that it was the appellant who has done it. Therefore, it is prayed that the appellant may be acquitted of the charge and the appeal may be allowed.

Learned counsel for the appellant placed reliance on the judgment delivered by Hon'ble the Supreme Court in the matter of Tomaso Bruno and another Versus State of Uttar Pradesh, (2015) 3 SCC(Cri) 54.

It is also prayed on behalf of the appellant that if this Court is not convinced to set aside conviction of the appellant, then his sentence of imprisonment may be reduced to the period of detention which he has already undergone in jail.

7. Learned counsel f