Kerala High Court
Umer Ali vs State Of Kerala on 24 March, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal No.652 of 2023 1
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CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947
CRL.A NO. 652 OF 2023
CRIME NO.2124/2019 OF Perumbavoor Police Station, Ernakulam
(AGAINST THE ORDER/JUDGMENT DATED 23.12.2022 IN SC NO.182 OF
2020 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM)
APPELLANT/ACCUSED (IN CUSTODY):
UMER ALI
AGED 23 YEARS
S/O ABDUL HUSSAIN, MASJID STREET, NEAR HAIBERGAON
POLICE AID POST, ISLAMPATHI BHAGOM (SADAR POLICE
STATION LIMITS), NAGON DISTRICT, ASSAM, PIN -
782002
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
R.GAYATHRI
Crl.Appeal No.652 of 2023 2
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M.MAHIN HAMZA
ALWIN JOSEPH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
BY PUBLIC PROSECUTOR NEEMA T.V.
OTHER PRESENT:
PP- ADV. NEEMA T.V
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18.03.2025, THE COURT ON 24/3/2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.652 of 2023 3
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RAJA VIJAYARAGHAVAN V, CR
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------.
Crl.Appeal No.652 of 2023
---------------------------------
Dated this the 24thday of March 2025
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the sole accused in SC No.182/2020 on
the files of the Special Court of Sessions, Ernakulam Division,
challenging his conviction and sentence imposed under Sections
302, 376(A) and 201 IPC by that court.
Prosecution Case
2. On 27/11/2019 at about 1.08 am, the accused, a
vagabond, with an intention to commit rape and murder of
deceased Deepa dragged her to the courtyard of 'Indraprastha
hotel' situated in Perumbavoor. Thereafter, when the deceased
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resisted the attempts of the accused, he took a hoe and hacked on
her face causing injuries. Then, the accused laid the victim on the
ground, disrobed her and committed rape upon her. Thereafter,
the accused again inflicted injuries on the head, face and other
parts of the body of the victim using the very same hoe, resulting
in inflicting further injuries and the deceased succumbing to her
injuries. Later, the accused also damaged a CCTV camera placed in
the place of occurrence, which had captured the events. Hence,
the prosecution alleged that the accused has committed the
offences punishable under Sections 302, 376 (A)and 201 IPC.
Proceedings before the trial court
3. On appearance of the accused, charges were framed
against him under the afore sections, to which he pleaded not
guilty. Thereafter, from the side of the prosecution PW1 to PW28
were examined and Exts.P1 to P45 and MO1 to MO11 were
marked. Ext.D1 contradiction was also marked from the side of the
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accused through the prosecution witnesses. When examined under
Section 313 Cr.P.C, the accused denied all the incriminating
circumstances appearing against him in evidence and contended
that he is innocent. He stated that on 26/11/2019 at about 3 pm,
the deceased approached him seeking money and he did not oblige
to the request. He told the deceased that he will handover the
money, if she is ready to have sex with him. The deceased
consented and they indulged in sexual intercourse and thereafter,
he paid Rs.300/-. Later, at 4.30 pm he was taken to the police
station and was informed that a crime is going to be registered
against him for usage of drugs. He was arrested on 27/11/2019 at
about 10 pm and he came to know that the arrest was made in
connection with the murder of a lady. He further stated that he
was below 18 years of age at that time. Even though an
opportunity was granted to the accused to adduce evidence, no
evidence was adduced. The trial court, on an appreciation of the
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evidence on record, found the accused guilty and convicted him
under Sections 302, 3769(A) and 201 IPC. The accused was
sentenced to undergo imprisonment for life and to pay a fine of
Rs.50,000/- under Section 302 IPC. In case of default, the accused
was ordered to undergo rigorous imprisonment for a period of four
months. The accused was also sentenced to undergo imprisonment
for life and to pay a fine of Rs.50,000/- under Section 376(A) IPC.
In case of default, he was ordered to undergo rigorous
imprisonment for a further period of four months. The accused was
further sentenced to undergo rigorous imprisonment for a period of
five years and to pay a fine of Rs.10,000/- under Section 201 IPC.
In case of default, the accused was ordered to undergo rigorous
imprisonment for a further period of two months.
Contentions of the appellant/accused
4. The learned counsel for the appellant Adv. Sai Pooja
contended that the prosecution case entirely rests upon
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circumstantial evidence and the prosecution has failed to prove
each of the circumstances relied on by it. She argued that the
entire case of the prosecution hinges upon the alleged CCTV
visuals recovered from the scene by the investigating officer, but
the same has not been proved as required by law. She contended
that the DVD's including Exbt.P25, which allegedly contains the
mirror image of the visuals in MO-4 DVR and which has been relied
on by the trial court, was not accompanied with an obligatory
certificate under Section 65B and hence, is not at all admissible in
evidence. She relied on the decisions in Anwar v. Basheer(2014
KHC 4602) and Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal (2020 4 KHC 101) in support of her
contentions. She argued that the evidence of PW5 identifying the
accused is not believable and no Test Identification parade has
been conducted to corroborate his evidence. She relied on the
decisions in Rameshwar Singh v. State of J & K (1971 KHC
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604) & Sasikumar v. State (AIR 2024 SC 5507) and contended
that the non-conduct of the Test Identification parade of PW5 is
fatal. She also argued that there is no link evidence to connect
Exts.P26 & P27 reports of the expert with the accused since there
is no evidence to show that the samples allegedly taken have
reached the lab in a tamper-proof condition. She relied on the
decision in Prakash Nishad v. State of Maharastra (AIR 2023
SC 2938) and contended that in such circumstances, no value can
be attached to them. She also added that Ext.P27 cannot be relied
upon, since it does not reveal the method of examination and the
recovery of the articles from the place of occurrence cannot be
relied upon, in the absence of independent witnesses. She further
contended that the prosecution has not proved the identity of the
accused and that the DVD, which has been played in the court
initially before the introduction of Ext.P25 DVD and which has been
relied on by many of the witnesses to identify the accused, is not
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seen produced and marked. Hence, she prayed that this appeal
may be allowed.
Contentions of the Public Prosecutor
5. The learned Public Prosecutor Adv.Neema T.V. argued that,
the prosecution has proved the contents of Ext.P25 which
unerringly shows that it is the accused who has committed the
crime. She argued that the evidence of PW25 would categorically
show that Ext.P25 is a mirror image of the original hard disk seized
by the police and which has been produced and marked as MO4.
According to the learned prosecutor, since the original hard disk
itself has been produced before the trial court, there is no need for
Section 65B certification for Ext.P25. She further submitted that all
the material witnesses have identified the accused in the dock as
the person, who is seen in the CCTV visuals, committing the crime.
She argued that the scientific evidence adduced by the prosecution
also supports the afore evidence and shows that it is the accused
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who has committed the crime. Hence, she prayed that this appeal
may be dismissed.
A conspectus of the prosecution evidence
6. PW1 is the son of the owner of the hotel by name
'Indraprastha'. He deposed that on 27/11/2019 at about 5.30 am,
PW3 called him and informed him that a lady was seen lying dead
in front of their hotel. He, along with his father, went there and
saw a lady lying in a pool of blood, with cut injuries on her hand,
face and head. Nearby, a black shawl and a hoe smeared with
blood was lying. The CCTV camera was found broken. He went
inside the shop and opened the CCTV monitor and saw that at
about 1.08 am, a person was seen dragging a lady to the front of
his shop and hitting her using a hoe. Thereafter, the person
committed rape upon the lady and damaged the CCTV. He
identified the person, whom he saw in the visuals, as the accused
in the dock. Thereafter, he along with his father went to the police
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station and gave Ext.P1 FIS. He also identified the weapon as
MO1, shawl as MO2, CCTV camera as MO3, the DVR and charger
as MO4 series. He also signed in Ext.P2 mahazar prepared by the
police while seizing MO4 series.
7. PW3 is the employee in Indraprastha Hotel, who had first
seen the dead body of the victim. He deposed that at about 5.30
am, when he went to the hotel, he saw the dead body and
informed PW1. He also found MO1 and MO3 (in a broken condition)
lying nearby. During cross examination, he denied giving a
statement to the police that he knew Malayalam very well and the
said portion was marked as Ext.D1.
8. PW4 deposed that in the evening of 26th November, he had
gone to Indraprastha hotel to have food and had kept his hoe at
that place. On the next morning, when he went to pick his hoe, he
saw the dead body lying there and he returned. He identified his
hoe as MO1.
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9. PW5 is working as a security guard in 'K.P.Chacko
Jewellery', which is located near Indraprastha hotel. He deposed
that at about 12.45-1.00 am, he had witnessed the accused
walking through the front of the jewellery store and that the police
had shown that person to him five to six days after the incident. In
his cross examination, he stated that he had seen the photos of
the accused in the newspaper.
10. PW8 was the manager of Indraprastha Hotel. He deposed
that when he reached the spot he saw the dead body of the victim
and MO1 and MO3 lying there. He witnessed the police seizing MO2
shawl, MO5 series dresses worn by the deceased and MO1 and
MO3, and had signed in Ext.P5 mahazar.
11. PW13 is the scientific officer, who inspected the scene of
crime on 27/11/2019 and collected samples. She thus collected
eight items, packed, labeled and sealed them and handed them
over to the investigating officer along with Ext.P12 certificate.
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12. PW15 deposed that he is running a computer firm by
name 'Bits and Bytes' in Ernakulam. He had installed the CCTV in
Indraprastha hotel and he identified the camera as MO3. In his
cross examination, he stated that the CCTV system includes a
camera, control recorder, DVR, Hard disk, Monitor and power
supply cable. He also stated that what was saved in the hard disk
is in MP 4 format and the CCTV was installed two months ago. He
further stated that in the DVD played before the court, the content
was in K-Lite -Codec format and the same was converted to this
format from MP 4 format by using a converter.
13. PW17 is the doctor, who conducted the postmortem
examination on the body of the deceased Deepa and issued Ext.14
certificate. He noticed 32 ante mortem injuries on the body. The
blood group was determined as 'O Rh positive' and he collected
blood samples from the body, vaginal swab and smears, nail
clippings and handed over the same to the place. He opined that
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the cause of death was due to head injury. Injury Nos. 1 to 5, 10 &
11 are fatal injuries and are sufficient in the ordinary course of
nature to cause death. He also stated that these injuries can be
caused by using MO1. He added that injury No.24 could be caused
as a result of forceful separation of the victim's thighs and this
could have happened following an attempt for a sexual assault. He
further stated that the whitish mucoid fluid seen inside the vaginal
orifice could have a mixture of female as well as male secretions.
In his cross examination, he stated that the congested margins in
vaginal orifice could be evidence of vaginal penetration.
14. PW19 is the senior CPO attached to the Perumbavoor
Police station. He deposed that on 27/11/2019 at about 1.00 pm,
the investigating officer arrested the accused and had seized the
articles worn by him as per Ext.P16 mahazar. He signed in the
mahazar as a witness and identified the dresses and other articles
worn by the accused as MO6 series to MO11.
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15. PW 23 is a witness to Exts.P5, P22 and Ext.P23
mahazars. He also identified MO1, MO2, MO3 & MO5 series as the
articles seized as per Ext.P5 mahazar. He also saw the visuals
along with the Investigating Officer while preparing Ext.P23
mahazar.
16. PW 24 is the police officer, who recorded Ext.P1 FIS and
registered Ext.P1(a) FIR. He also saw the CCTV visuals along with
the investigating officer and understood the details of the accused.
Thereafter, he brought the accused to the police station. In his
cross examination he stated that 7.35 am which is recorded in the
FIR, is the time when the information received was recorded and
completed.
17. PW25, the Assistant Director of Regional Forensic Science
Laboratory, Cochin, deposed that on 18/12/2009 she examined the
hard disk marked as Q1 and recovered the video footage for the
period 1.08 am to 1.20 am on 27/11/2019 . She stated that she
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copied it into Annexure -1 DVD. She also prepared and handed
over Ext.P24 report at that time. The DVD was identified and
marked as Ext.P25. She stated that on examining the video
footage, she could identify the man shown in the standard
photograph assaulting and sexually abusing a woman. She
identified the said person as the accused in the dock. She also
identified MO1 as the weapon used by him and MO4 series as the
DVR and charger examined by her. In her cross examination, she
stated that Ext.P24 does not contain the hash value and that
Folder No.1 of Ext.P25 contains the original visuals as retrieved
from Q1.
18. PW26, the Scientific Officer attached to FSL, Trivandrum,
deposed that he had received 26 sealed packets along with a
forwarding note and that he had examined items Nos. 1 to 5, 8,9
and 13 to 19 and issued Ext.P26 report. On examination, he found
human blood in item Nos. 1,2,4,5,8,9,14,15,17 & 19 and blood in
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item Nos. 3 and 18. He identified the articles examined as MO5
series, MO6, MO7, MO8, MO9, MO10, MO11, MO1 & MO2.
19. PW 27 was the Scientific Officer (Biology) attached to the
FSL, Thiruvananthapuram. She deposed that she had examined 26
items received from the Scientific Officer of Zerology Division and
has issued Ext.P27 certificate. On examination, she found that the
blood stains in item Nos. 1,2,4,5,8,9,14,17 & 19 belong to the
deceased and seminal stains in item No.4 belong to the accused.
The stains in item No.15 belong to both the accused and the
deceased and the nail clippings of the accused in item No.20
contained cells and tissues of both the accused and the deceased.
20. PW28 is the Investigating Officer in this case. He deposed
that he took over the investigation on 27/11/2019 and prepared
Ext.P3 inquest report and seized MO1, MO2, MO3, & MO5 as per
Ext.P5 mahazar. He produced these articles before the court as per
Ext.P28 property list. Later, he collected the samples taken by the
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Scientific Officer as per Ext.P15 Mahazar and produced them
before the Court as per Ext.P29 property list. He also prepared
Ext.P4 scene mahazar and arrested the accused by preparing
Ext.P30 series documents. Thereafter, he seized the dresses and
articles worn by the accused as per Ext.P16 mahazar and produced
them before the court as per Ext.P31 property list. He also
collected biological evidence of the accused along with Ext.P7
certificate as per Ext.P21 mahazar and produced them before the
court as per Ext.P32 document. Later, he collected the samples
taken by the doctor who conducted the postmortem as per Ext.P22
mahazar and produced it before the court as per Ext.P33. On
28/11/2019, he prepared Ext.P23 observation mahazar after
seeing the CCTV visuals, seized DVR and charger as per Ext.P2
mahazar and produced them in the court as per Ext.P35 property
list. He also produced all the documents collected during
investigation and prepared and sent Ext.P44 series forwarding
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notes to the court and obtained Exts.P26, P27 reports.
Evaluation of evidence
21. The first and foremost question that arises for
consideration is whether the cause of death of Deepa is homicidal
or not. The evidence of PW17 coupled with Ext.P14 shows that the
victim had suffered 32 ante mortem injuries and amongst them,
injury Nos. 1 to 5, 10 and 11 are fatal injuries, sufficient in the
ordinary course of nature to cause death. PW17 categorically
opined that the cause of death was due to the head injuries, which
are injury Nos. 1 to 5, 10 and 11 as referred above. His evidence
also reveals that these injuries can be caused using MO1. In the
light of the afore evidence, we have no hesitation to find that the
death of Deepa is by homicide.
22. The next question to be considered is whether it is the
accused who has committed the rape and murder of deceased
Deepa. Admittedly, in the present case there are no eye witnesses
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to the incident. The prosecution is heavily relying upon the visuals
collected from the CCTV, which is located near the place of the
occurrence, to inculpate the accused in this crime. The DVR of the
CCTV, which was kept in the premises, in which the events were
recorded, were seized by the investigating officer and produced
before the court and marked as MO4. It is also to be seen that the
mirror image allegedly copied to a DVD from the hard disk in the
DVR, have been played before the trial court to enable the
witnesses to identify the accused. The original document/primary
evidence which is available (the DVR containing the hard disk),
has not been brought into evidence during trial for reasons best
known to the trial court and the prosecution. Instead, it appears
that DVR has been forwarded to the Forensic Science Laboratory
and a copy of the relevant portion from it has been copied to a
DVD and has been adduced as evidence. The proceedings also
reveal that the DVD, which was played in the trial court and used
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for identifying the accused by the witnesses till PW25 was
examined, is not the DVD which was played and marked as
Ext.P25 through PW25. It appears that the DVD in which the video
clipping was copied from the DVR, and which was played in the
trial court till the examination of PW25, did not 'work' when the
same was attempted to be played when PW25 was in the box. An
application was then filed by the prosecution to direct the expert to
make another copy from the data retained in the office which was
allowed by the Trial Court. The expert then went back and came
with a new DVD and the same was marked as Ext.P25 through the
witness. Anyway, it is very pertinent to note that there is no
Section 65B certification for both the DVDs and there is nothing
available on record to show as to what happened to the DVD which
was initially produced and the same was run in the presence of the
witnesses.
23. Matter being thus, as stated earlier, the prime contention
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of the appellant is that in the absence of Section 65B certification,
the DVDs played and relied upon by the trial court are not at all
admissible in evidence and, therefore, the entire edifice, on which
the prosecution case is built up, is shaken. In order to appreciate
the afore contention, it would only be apt to discuss the settled
principles of law laid down by the Apex Court regarding the
admissibility and appreciation of electronic records/evidence. In
the decision in Anwar's case (cited supra), the Hon'ble Apex Court
has held thus:
"13. Any documentary evidence by way of an electronic
record under the Evidence Act, in view of S.59 and S.65A,
can be proved only in accordance with the procedure
prescribed under S.65B. S.65B 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. It may be noted that the Section starts with a
non obstante clause. Thus, notwithstanding anything
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contained in the Evidence 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 shall be deemed to be a document only if the
conditions mentioned under sub-section (2) are satisfied,
without further proof or production of the original. The very
admissibility of such a document, i.e., electronic record which
is called as computer output, depends on the satisfaction of
the four conditions under S.65B(2). Following are the
specified conditions under S.65B(2) of the Evidence Act:
(i) The electronic record containing the information should
have been produced by the computer during the period over
which the same was regularly used to store or process
information for the purpose of any activity regularly carried
on over that period by the person having lawful control over
the use of that computer;
(ii) The information of the kind contained in electronic record
or of the kind from which the information is derived was
regularly fed into the computer in the ordinary course of the
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said activity;
(iii) During the material part of the said period, the computer
was operating properly and that even if it was not operating
properly for some time, the break or breaks had not affected
either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a
reproduction or derivation from the information fed into the
computer in the ordinary course of the said activity.
14. Under S.65B(4) of the Evidence Act, if it is desired to
give a statement in any proceedings pertaining to an
electronic record, it is permissible provided the following
conditions are satisfied:
(a) There must be a certificate which identifies the electronic
record containing the statement;
(b) The certificate must describe the manner in which the
electronic record was produced;
(c) The certificate must furnish the particulars of the device
involved in the production of that record;
(d) The certificate must deal with the applicable conditions
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mentioned under S.65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a
responsible official position in relation to the operation of the
relevant device.
15. It is further clarified that the person need only to state in
the certificate that the same is to the best of his knowledge
and belief. 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 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.
16. Only if the electronic record is duly produced in terms of
S.65B of the Evidence Act, the question would arise as to the
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genuineness thereof and in that situation, resort can be
made to S.45A - opinion of examiner of electronic evidence.
17. The Evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence if requirements
under S.65B of the Evidence Act are not complied with, as
the law now stands in India.
18. xxxx
19.xxxx
20.xxxx
21.xxxx
22. The evidence relating to electronic record, as noted
herein before, being a special provision, the general law on
secondary evidence under S.63 read with S.65 of the
Evidence Act shall yield to the same. Generalia specialibus
non derogant, special law will always prevail over the general
law. It appears, the Court omitted to take note of S.59 and
S.65A dealing with the admissibility of electronic record. S.63
and S.65 have no application in the case of secondary
evidence by way of electronic record; the same is wholly
governed by S.65A and S.65B. To that extent, the statement
of law on admissibility of secondary evidence pertaining to
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electronic record, as stated by this Court in Navjot Sandhu
case (supra), does not lay down the correct legal position. It
requires to be overruled and we do so. An electronic record
by way of secondary evidence shall not be admitted in
evidence unless the requirements under S.65B are satisfied.
Thus, in the case of CD, VCD, chip, etc., the same shall be
accompanied by the certificate in terms of S.65B obtained at
the time of taking the document, without which, the
secondary evidence pertaining to that electronic record, is
inadmissible.
23 xxxxx
24.The situation would have been different had the appellant
adduced primary evidence, by making available in evidence,
the CDs used for announcement and songs. Had those CDs
used for objectionable songs or announcements been duly
got seized through the police or Election Commission and had
the same been used as primary evidence, the High Court
could have played the same in Court to see whether the
allegations were true. That is not the situation in this case.
The speeches, songs and announcements were recorded
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using other instruments and by feeding them into a
computer, CDs were made therefrom which were produced in
Court, without due certification. Those CDs cannot be
admitted in evidence since the mandatory requirements of
S.65B of the Evidence Act are not satisfied. It is clarified that
notwithstanding what we have stated herein in the preceding
paragraphs on the secondary evidence on electronic record
with reference to S.59, S.65A and S.65B of the Evidence Act,
if an electronic record as such is used as primary evidence
under S.62 of the Evidence Act, the same is admissible in
evidence, without compliance of the conditions in S.65B of
the Evidence Act."
24. Subsequently, in the decision in Arjun Panditrao Khotkar
case(cited supra), the Hon'ble Apex Court again considered the
very same question and held thus:
"30. Coming back to S.65B of the Indian Evidence Act,
sub-section (1) needs to be analysed. The sub-section
begins with a non obstante clause, and then goes on to
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mention information contained in an electronic record
produced by a computer, which is, by a deeming fiction,
then made a "document". This deeming fiction only takes
effect if the further conditions mentioned in the Section are
satisfied in relation to both the information and the
computer in question; and if such conditions are met, the
"document" shall then be admissible in any proceedings.
The words "...without further proof or production of the
original..." make it clear that once the deeming fiction is
given effect by the fulfilment of the conditions mentioned
in the Section, the "deemed document" now becomes
admissible in evidence without further proof or production
of the original as evidence of any contents of the original,
or of any fact stated therein of which direct evidence would
be admissible.
31. The non obstante clause in sub-section (1) makes it
clear that when it comes to information contained in an
electronic record, admissibility and proof thereof must
follow the drill of S.65B, which is a special provision in this
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behalf - S.62 to 65 being irrelevant for this purpose.
However, S.65B(1) clearly differentiates between the
"original" document - which would be the original
"electronic record" contained in the "computer" in which the
original information is first stored - and the computer
output containing such information, which then may be
treated as evidence of the contents of the "original"
document. All this necessarily shows that S.65B
differentiates between the original information contained in
the "computer" itself and copies made therefrom - the
former being primary evidence, and the latter being
secondary evidence.
32. Quite obviously, the requisite certificate in sub-section
(4) is unnecessary if the original document itself is
produced. This can be done by the owner of a laptop
computer, a computer tablet or even a mobile phone, by
stepping into the witness box and proving that the
concerned device, on which the original information is first
stored, is owned and / or operated by him. In cases where
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"the computer", as defined, happens to be a part of a
"computer system" or "computer network" (as defined in
the Information Technology Act, 2000) and it becomes
impossible to physically bring such network or system to
the Court, then the only means of proving information
contained in such electronic record can be in accordance
with S.65B(1), together with the requisite certificate under
S.65B(4). This being the case, it is necessary to clarify
what is contained in the last sentence in paragraph
24 of Anvar P. V. (supra) which reads as "... if an electronic
record as such is used as primary evidence under S.62 of
the Evidence Act...". This may more appropriately be read
without the words "under S.62 of the Evidence Act,...".
With this minor clarification, the law stated in paragraph
24 of Anvar P. V. (supra) does not need to be revisited."
25. In the light of the afore dictums, it can unambiguously be
stated that the DVDs, in which the electronic record (video
clipping) was extracted from the DVR (MO4) and which have been
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played in the court and relied on, being secondary evidence of the
electronic record, requires certification under Section 65B in order
to admit the document in evidence. In other words, we may say
that without Section 65B certification, there is no question of the
DVDs including Ext.P25 being admitted in evidence and relied
upon. There is no exemption granted in law to any authority
including the Forensic Science Laboratories from not complying
with the requirement of certification under Section 65B, while
making copies from the original electronic record. The afore
conclusion also gets full support from the observation made by the
Apex Court in para 16 of Anwar's case (cited supra), which is
extracted above. Further, an expert's report cannot be considered
as a formal substitute for Section 65B(4) certificate in the eyes of
law since, they serve two different purposes. A Section 65B
certificate is a specific statutory requirement to make a secondary
electronic record admissible as evidence, while Section 293 Cr.P.C.
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report is evidentiary material in its own right, typically presenting
the results of forensic analysis. A Section 293 Cr.PC report being
admissible, simply means that the report can be read as evidence
of what it states and it does not automatically validate any
attached electronic media. For instance, if the FSL report says "I
retrieved video file ZYZ from the DVR onto a DVD", the report is
proof that the analyst made such retrieval. But the video
recording(the DVD) still has to be independently admissible to be
viewed and relied upon as evidence of the facts depicted. The
expert's statement, however authoritative, is not the same as the
statutory certificate that permits the court to treat the DVD as
evidence of the video's contents. The situation would have been
different if in the present case, the prosecution has adduced
primary evidence by exhibiting and proving the contents of the
original electronic record itself, which is the DVR marked as MO4.
At the sake of repetition, we may say that we are at a loss to
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understand why the prosecution and the trial court had forgone the
primary evidence available and have made attempts to rely upon
secondary evidence and that too, without proper certification. In
the light of the afore discussions, the only conclusion we can reach
is that no reliance can be placed upon the secondary evidence in
the form of DVDs, the contents of which have been relied upon by
the trial court for convicting the accused.
26. The afore facts and circumstances discussed reflects a grave
truth, which is not at all easy to comprehend, i.e., both the
prosecution and the trial court have appallingly failed in their
duties to meet the demand of justice. The original electronic
record, which is the primary evidence and which was very much
available before the court, has been omitted to be adduced as
evidence and a copy of the electronic record extracted from the
original DVR was adduced without proper certification to make it
admissible. The prosecution, for reasons which we are not able to
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decipher or on a misconception, has failed in leading and tendering
material evidence to substantiate the charge, resulting in failure of
justice. It can also be stated that there was no fair trial conducted
in this case, thereby causing prejudice to both the victim and the
accused. It has been held by the Apex Court in Mohd.Hussain @
Julfikar Ali v. State (Govt. of NCT) [2012 KHC 4473] that an
appellate court hearing a criminal appeal from a judgment of
conviction has power to order retrial of the accused, though such
power should not be exercised in a routine manner. It was also
held that retrial should be ordered in exceptional and rare cases
and only when in the opinion of the court such a course becomes
indispensable to avert failure of justice. The guiding factor must
always be demand of justice. The appellate court must closely keep
in view that while protecting the right of an accused for fair trial
and due processes, the people who seek protection of law do not
lose hope in the legal system and the interest of the society are
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not altogether overlooked.
27. In the decision in Maria Margarida Sequeria
Fernandes v. Erasmo Jack de Sequeria (dead) Thr. L.Rs.
[2012 KHC 4181], the Hon'ble Apex Court held that truth is the
guiding star in a judicial process and truth alone has to be the
foundation of justice. The entire judicial system has been created
only to discern and find out the real truth and judges at all levels
should seriously engage themselves in the journey of discovering
the truth and that is their mandate, obligation and bounden duty.
It was also held that the justice dispensation system will acquire
credibility only when people get convinced that the justice will be
based on the foundation of truth.
28. It is true that if a case is ordered to be retried, ordinarily
it will be considered as a de novo trial. But, it is a settled law that
even in such cases, the appellate court is not debarred from
directing to use the evidence already recorded and to proceed to
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record additional evidence and dispose of the case. The Hon'ble
Apex Court in the decision in Satyajit Banerjee v.State of West
Bengal [(2005) 1 SCC 115] has held that even in cases where
retrial is directed, the evidence already recorded and the initial trial
need not be erased or wiped out from the records of the case and
the trial court can decide the case on the basis of the evidence
already on record and the additional evidence which would be
recorded on retrial. This Court also has, in the decision in Jimmy
George v. Sreekumar (2023 6 KLT 603), followed the afore
dictum.
29. If so, keeping in mind the afore principles and the facts
and circumstances of this case, including the fact that proper
evidence which was very much available before the trial court was
not adduced, the fact that no prejudice will be caused to the
accused since he has already been served with a copy of the DVD
and, in the interest of justice, we are of the view that this is a fit
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case where after setting aside the conviction and sentence passed
against the appellant/accused, the matter can be remanded back
for adducing further evidence relating to the electronic records in a
proper format, in the light of the discussions made afore. It need
not be mentioned that it will be open to the trial court to recall any
witnesses or summon documents for this purpose and the accused
will also be entitled to adduce evidence in his favour at the
appropriate stage. It is made clear that the trial court has to
decide the case on the basis of the evidence already on record and
the additional evidence which would be recorded hereinafter.
In the result, this appeal is allowed in part as follows:
i) The conviction and sentence passed against the
appellant/accused under Sections 302, 376(A) and 201 IPC in SC
No.182/2020 by the Special Court of Sessions, Ernakulam are set
aside.
ii) SC No.182/2020 is remanded back to the trial court for the
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purpose of bringing in evidence the electronic records available in
this case, as per law.
iii) The trial court shall, if required,recall any witnesses, summon
any documents, take additional Section 313 statement and grant
an opportunity to the accused to adduce further evidence.
iv) Thereafter, the trial court shall take a decision on the basis of
the entire evidence on record and strictly in accordance with law,
without in any manner being inhibited by anything stated in this
judgment.
v) Considering the fact that the accused is still undergoing
incarceration, the Session Judge shall make every endeavour to
dispose of the case as expeditiously as possible.
Sd/-
RAJA VIJAYARAGHAVAN V
Judge
Sd/-
P.V.BALAKRISHNAN
dpk Judge
