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:
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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