JUDGMENT :

1. The instant appeal has been preferred against the judgment dated 7.11.2009 passed by the Additional Sessions Judge, Link Court Dongargarh, District Rajnandgaon in Sessions Trial No.13 of 2009, whereby the Appellant has been convicted and sentenced as under:

2. Prosecution case, in brief, is that on the date of incident the prosecutrix (PW9) was a major girl aged about 20 years. According to the case of prosecution, on 14.12.2008, the prosecutrix went along the Appellant for a picnic at Karwari Dam where he offered her few eatables and cold drink. After consuming those eatables and drink, she got unconscious. Taking advantage of this situation, he committed rape with her and also prepared a video clip of the incident on his mobile phone and tried to blackmail her. He also transmitted the said video clip to co-accused Purmanand Kanwar alias Purva (acquitted). On 11.2.2009, First Information Report (Ex.P14) was lodged by her. During the course of investigation, one mobile phone was seized from the possession of the Appellant vide Ex.P5. One other mobile phone was seized from the possession of co-accused Purmanand vide Ex.P6. Statements of the prosecutrix and other witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a charge-sheet was filed. The Trial Court framed charges against the Appellant under Sections 376(1), 292 of the Indian Penal Code and Section 67 of the Information Technology Act and against co-accused Purmanand under Section 67 of the Information Technology Act.

3. In support of its case, the prosecution examined as many as 10 witnesses. In examination under Section 313 of the Code of Criminal Procedure, the accused persons denied the guilt and pleaded innocence. No witness has been examined in their defence.

4. On completion of the trial, vide the impugned judgment, the Trial Court acquitted co-accused Purmanand of the charge under Section 67 of the Information Technology Act and also acquitted the Appellant of the charges under Sections 376(1) and 292 of the Indian Penal Code, but convicted him under Section 67 of the Information Technology Act and sentenced him as mentioned in first paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellant submits that without there being clinching and sufficient evidence on record against the Appellant, the Trial Court has wrongly convicted him. None of the prosecution witnesses has supported the case of the prosecution. The Trial Court has convicted the Appellant only on the basis of statement of Investigating Officer M.N. Bathi (PW10). From the statements of the witnesses, it is clear that none of the witnesses has seen any video clipping or obscene photo of the prosecutrix. There is no evidence on record on the basis of which it could be said that the Appellant had published or transmitted the obscene video clipping. Therefore, conviction of the Appellant under Section 67 of the Information Technology Act is not sustainable.

6. Learned Counsel appearing for the State opposes the above submission and supports the impugned judgment of conviction and sentence.

7. I have heard Learned Counsel appearing for the parties and perused the entire record with due care.

8. Ku. Sandhya Shende (PW1), Sanni Gwala (PW2), Shailendra Kumar Pardhi (PW3) and Mahesh Kumar Sen (PW4) have not supported the case of the prosecution. They have turned hostile. Layakram (PW5), father of the prosecutrix has only deposed that the prosecutrix had told him that the Appellant had committed wrong act with her and he had also taken out her naked photographs. In paragraphs 10 and 11, this witness has categorically admitted t