Saturday, 9 January 2016

When electronic document DVD can not be used as previous statement as per S 145 and S 155(3) of Evidence Act?

Matters being so, the said documents marked as

D30 and D31 in evidence, even if those documents are

admissible under Section 65B(4) of the Indian Evidence Act

as an electronic record, the same cannot be made use of as

a previous statement within the meaning of Section 145 as

well as Section 155(3) of the Indian Evidence Act.

Admittedly, those DVDs contain the matters recorded by the

investigating officer or some other matters available at the

scene of occurrence during the preparation of the scene

mahazar.      A mahazar cannot be treated as a previous



statement at all.    What was seen by the person, who

prepared the mahazar, are recorded in the mahazar. It is

only a document.
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                      PRESENT:

                         THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

           TUESDAY,THE 8TH DAY OF DECEMBER 2015
                                           Crl.MC.No. 7647 of 2015 ()
                                              

            MOHAMMED NISSAM A.A., 
Vs

            THE STATEOF KERALA
           




Coram


                         B. KEMAL PASHA, J.




            During the preparation of scene mahazar in the

case, the investigating officer had contemporaneously

recorded the scene as such and the activities, through video

graph as well as photograph. The same were recorded in

DVDs. Even though such an exercise was done by the

investigating officer, the prosecution has not relied on the

said DVDs as, according to the prosecution, there was no

certification as mandated under Section 65B(4) of the Indian

Evidence Act, 1872 making it admissible in evidence as an

electronic record.

      2.    During the cross-examination of the investigating


officer, the defence wanted to press into service those two

DVDs, thereby those two DVDs were marked as documents

before the court below through the cross-examination of the

investigating officer on the side of the accused, as D30 and

D31. The evidence is over. The case stood posted for the

examination of the accused under Section 313 Cr.P.C.

      3.     During the course of the cross-examination of the

investigating officer, Crl.M.P. No.4641/2015 was filed by the

accused before the court below seeking that those DVDs

had to be played before the court below in open court for

enabling him to confront PW22, the investigating officer, on

the basis of the contents of those DVDs. The said request

was denied by the court below mainly on two grounds:- (1)

It is not an electronic record admissible in evidence as it

does not contain proper certification within the meaning of

Section 65B(4) of the Indian Evidence Act, and (2) The

same not being a previous statement of the witness, the

defence cannot encash it for the purpose of contradicting



the witness.

      4.     Heard learned Senior Counsel for the petitioner

Sri.K.Gopalakrishna Kurup and learned Director General of

Prosecutions Sri.Asaf Ali.

      5.     The learned Senior Counsel for the petitioner has

invited the attention of this Court to the decision in Ramaiah

alias Rama v. State of Karnataka [(2014) 9 SCC 365],

wherein it was held in paragraph 14 as follows:-

               "To falsify this position taken by the

         prosecution through these witnesses, the

         learned counsel for the appellant had taken

         us to the evidence of PW8 who had drawn

         mahazar near the well. This mahazar

         coupled with the statement of PW8 is a very

         significant piece of evidence which has

         considerable     effect     in  denting     the

         creditworthiness of the testimony of these

         witnesses. As per PW8 himself, when he

         had reached the spot, it was the mother of

         the deceased who pointed out the place

         where the dead body was lying.            This


         assertion     amply  demonstrates   that the

         mother of the deceased had known where

         the body was kept and she along with PW1

         and    PW2     had   reached  the  place   of

         occurrence before the dead body was

         cremated. Relying upon this evidence, the

         trial court has disbelieved the story of the

         prosecution that Laxmi was cremated even

         before these persons had reached the

         village of the appellant. Strangely, the High

         Court has discarded the mahazar drawn by

         PW8 by giving a specious reason viz. it was

         not an exhibited document before the court,

         little realising that this was the document

         produced by the prosecution itself and even

         without     formal   proof  thereto  by  the

         prosecution, it was always open for the

         defence to seek reliance on such an

         evidence to falsify the prosecution version.

         Moreover, PW8 has specifically referred to

         this document in his evidence. It is also a

         matter of record that a specific suggestion

         was made to PW3 (mother of the deceased)

         in the cross-examination to the effect that it



         is she who had pointed out the place of the

         dead body lying near the well to the police

         personnel. The version of PW1 to PW3 that

         they reached the village of the appellant

         after Laxmi had already been cremated,

         does not inspire confidence and appears to

         be mendacious."

It seems that in the decision in Ramaiah (supra), it was a

prior statement on which the defence wanted to rely on.

      6.     The learned Senior Counsel for the petitioner has

argued that being a document which is included in the

definition of 'evidence' in the Indian Evidence Act, the

defence should not be denied an opportunity to confront

PW22 with the aid of the said electronic record. As the

material is not before this Court at present, this Court cannot

say whether D30 and D31 are evidence admissible as an

electronic record within the meaning of Section 65B of the

Indian Evidence Act. Even assuming that it is an electronic

record, and in case there is due certification as



contemplated under Section 65B(4) of the Indian Evidence

Act, the question to be considered is whether such a

document can be made use of under Section 145 of the

Indian Evidence Act to cross-examine PW22 on the basis of

its contents or whether the credit of PW22 can be

impeached under Section 155(3) of the Indian Evidence

Act?

      7.     The learned Director General of Prosecutions has

pointed out that even if it is considered as a document, it

cannot assume the status of previous statement and,

therefore, as provisions in the Indian Evidence Act stand

now, the accused is not entitled to make use of those

documents in any manner. As per Section 145 of the Indian

Evidence Act, a witness may be cross-examined as to

'previous statements' made by him in writing. That means,

as per Section 145 of the Indian Evidence Act, only a

previous statement in writing of such a witness can be made

use of for contradicting such a witness.



      8.     The next provision is with regard to Section 155

(3) of the Indian Evidence Act, which says that the credit of a

witness may be impeached by the adverse party or with the

consent of the Court by the party who calls him, by proof of

former statements inconsistent with any part of his evidence

which is liable to be contradicted. There also, only in case

of a previous statement, the provision under Section 155(3)

of the Indian Evidence Act can be pressed into service.

      9. Matters being so, the said documents marked as

D30 and D31 in evidence, even if those documents are

admissible under Section 65B(4) of the Indian Evidence Act

as an electronic record, the same cannot be made use of as

a previous statement within the meaning of Section 145 as

well as Section 155(3) of the Indian Evidence Act.

Admittedly, those DVDs contain the matters recorded by the

investigating officer or some other matters available at the

scene of occurrence during the preparation of the scene

mahazar.      A mahazar cannot be treated as a previous



statement at all.    What was seen by the person, who

prepared the mahazar, are recorded in the mahazar. It is

only a document.

      10. Only when the versions by the person, who has

prepared it, are recorded in writing in the mahazar, it can be

treated as a previous statement. In such case, if the

document contains the previous statement of the person,

who prepared the scene mahazar, the defence may be able

to make use of it under Section 145 of the Indian Evidence

Act to contradict the witness or under Section 155(3) of the

Indian Evidence Act to impeach the credit of the witness.

When it is only a scene mahazar and when those

documents were recorded as things, which were available at

the scene at the time of the preparation of the scene

mahazar, the present request of the accused to make use of

it under Section 145 or Section 155(3) of the Indian

Evidence Act is not legally sustainable.

      11. It is made clear that this Court has not expressed



anything with regard to the admissibility or otherwise of the

contents of D30 and D31. If it is an electronic record duly

certified under Section 65B(4) of the Indian Evidence Act,

the contents of those documents can be relied on at the

appropriate stage by the court below. It is for the court

below to decide the admissibility or otherwise of the

contents of the said documents.

      12. I do not find any illegality, irregularity or

jurisdictional error in the impugned order passed by the

court below. Matters being so, this Crl.M.C. is devoid of

merits and is only to be dismissed, and I do so.

      In the result, this Crl.M.C. is dismissed.

      The Registry shall communicate a copy of this order to

the trial court, expeditiously.


                                               Sd/-
                                      (B.KEMAL PASHA, JUDGE)


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