Telangana High Court
Khaja Miya vs State Of Telangana on 10 April, 2025
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL No. 1456 of 2018
JUDGMENT:
(per The Hon'ble Sri Justice K.SURENDER)
This appeal is filed by the appellant/accused, aggrieved by the
conviction recorded by the V Additional Metropolitan Sessions
Judge (Mahila Court), Hyderabad, in SC.No.25 of 2016 dated
15.03.2018, convicting the accused under Section 302 of the Indian
penal Code, and sentencing him to undergo Life Imprisonment and
to pay a fine of Rs.1,000/-.
2. Heard learned counsel for the appellant and Sri Arun Kumar
Dodla, learned Additional Public Prosecutor, Sri M.Vivekananda
Reddy, learned Assistant Public Prosecutor appearing for the
respondent-State.
3. The appellant was convicted for beating the deceased, Swamy,
with a boulder on his head, resulting in his death. The said act of
the appellant beating the deceased was captured on CCTV camera.
On the basis of the said CCTV camera footage, which is Ex.P12 (two
CDs), the appellant was identified as the accused. PW.1 was
working as a Police Constable in Nallakunta Police Station. He went
to the scene of offence, along with another, while he was on
patrolling duty. There, they found the deceased in an unconscious
state. They also found a stone at the scene. The deceased was taken
to the Gandhi Hospital, where he was declared as brought dead.
PW.1-Constable lodged Ex.P1-complaint, stating that they found the
body of an unidentified person who was aged around 50-55 years.
On the basis of the complaint, the Police started the investigation.
During the course of the investigation, it was found that a CCTV
camera was installed near the Charitha Automobiles showroom.
The Inspector of Police collected the footage from the said CCTV
camera. In the CCTV footage, according to the prosecution, the
appellant was seen beating the deceased on his head with a
boulder.
4. PW.2 accompanied PW.1 and states about the dead body being
found. Similar evidence is of PWs.3 and 4 that the dead body was
found.
5. PW.5 stated that, between 3.00 and 4.00 A.M., while he along
with his friend were sitting in front of a showroom and having Tea,
they heard a sound, and when they went there, they found the
deceased lying on the ground in a pool of blood. The appellant was
seen running from the scene. PW.5 has prior acquaintance with the
appellant. The Police have also shown the CC TV footage to PW.5 in
which he identified the appellant. PW.5, in his cross-examination,
stated that he did not state in his statements recorded under
Sections 161 and 164 Cr.P.C. that he was sitting to have Tea
between 3.00 and 4.00 A.M. on 10.08.2015.
6. PW.9 is the Manager of Charitha Automobiles Showroom,
where the CCTV footage cameras were installed. He identified the
CCTV footage in which a person is seen hitting a sleeping person
with a stone. After confirming the death of the sleeping person, the
person left the scene.
7. The entire case rests on the CCTV footage, which was
transferred and stored on the CDs-Ex.P12.
8. The learned Sessions Judge found that the applicability of the
requirement of the certificate, being procedural, can be relaxed by
the Court wherever the interest of justice justifies. The said finding
of the learned Sessions Judge is contrary to the Judgment of the
Honourable Supreme Court in Chandrabhan Sudam Sanap v.
State of Maharashtra 1.
9. The Honourable Supreme Court in the above case held that
Section 65(B) (4) certificate is a condition precedent to the
admissibility of electronic records.
2023 SCC OnLine 1342
10. Following the observations of the Honourable Supreme Court,
once the CCTV footage is excluded from consideration, there is no
other evidence to connect the appellant to the crime. Although PW.5
stated that he saw the appellant running from the scene, however,
his presence at the scene itself was neither stated to the Police when
he was examined under Section 161 of Cr.P.C. nor before the
Magistrate when his statement was recorded under Section 164 of
Cr.P.C. Further, LW.8, who stated that he saw the appellant along
with PW.5, was not examined. Even if the evidence of PW.5 is
considered, where he claims to have seen the appellant either
beating the deceased or running from the scene and that they found
the dead body, the First Information was given at about 5:50 hours,
which is nearly 2 ½ hours after the incident took place. For the said
reason, the presence of PW.5 is doubtful. In fact, PW.5 did not give
any information to the Police about the incident.
11. PW.9 was working as Manager of Charitha Mobiles when he
handed over the CCTV footage. PW.9 did not say whether he handed
over the hard disk or the two CDs under Ex.P12. PW.8 is the
Assistant Director of FSL, Hyderabad, who analysed two CDs and
gave opinion, vide Ex.P3, that the video clips in the CDs were not
tampered with. However, PW.8 did not state that he examined the
two CDs under Ex.P12. The Court observed that there was no
section 65(B)(4) certificate while marking Ex.P3, however, no steps
were taken to obtain a 65(B)(4) certificate during the trial. Ex.P12-
CDs were marked through PW.14-Investigating Officer, subject to
objection. PW.14 says he collected CDs-Ex.P12 from PW.9, however,
PW.9 did not say anything about copying footage onto the CDs-
Ex.P12.
12. There is no other evidence apart from the CDs (CCTV footage)
which are filed before the Court. Though the FSL report-Ex.P3 was
filed and the CDs were sent to the FSL, however, in the absence of
the certificate under Section 65(B)(4) of the Indian Evidence Act,
required for admissibility of electronic secondary evidence, the said
footage cannot be looked into.
13. In view of the aforesaid reasons, Criminal Appeal is allowed.
The appellant shall be released forthwith, if he is not required in
any other case.
__________________
K.SURENDER, J
_____________________
E.V.VENUGOPAL, J
Date: 10.04.2025
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