Saturday 11 September 2021

How to appreciate CCTV camera evidence in Rape Case under POCSO Act?

 G] ADMISSIBILITY OF ELECTRONIC EVIDENCE :-

120. Sections 65A and 65B of the Evidence Act, 1872 deal

with the admissibility and contents of evidence of information

contained in electronic records. The Apex Court in the case of

Anwar P. V. vs P. K. Basheer, reported in (2014) 10 SCC 473 has held

that these two sections are a complete Code in themselves on the

admissibility of evidence of information contained in electronic

records.

121. Section 65B(1) differentiates between –

i) the “original document” – the electronic record on

the device in which the original information is first

stored (qualifying it as primary evidence), and

ii) the output from such device which contains

information originating from the original document,

i.e. a copy made therefrom (being secondary

evidence) [Arjun Panditrao Khotkar vs Kailash

Kushanrao Gorantyal, (2020) 7 SCC 1].

122. The Hon’ble Apex Court has in Arjun Panditrao Khotkar

(supra), in para 73.2, expounded the law on admissibility of primary

and secondary evidence in electronic form in the following words–

“ 73.2. The clarification referred to above is that

the required certificate under Section 65B(4) is

unnecessary if the original document itself is

produced. This can be done by the owner of a

laptop computer, 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 the

“computer” happens to be a part of a “computer

system” or “computer network” and it becomes

impossible to physically bring such system or

network to the Court, then the only means of

providing information contained in such electronic

record can be in accordance with Section 65B(1),

together with the requisite certificate under

Section 65B(4). The last sentence in Anvar P.V.

(supra) which reads as “…if an electronic record as

such is used as primary evidence under Section 62

of the Evidence Act…” is thus clarified; it is to be

read without the words “under Section 62 of the

Evidence Act…” With this clarification, the law

stated in paragraph 24 of Anvar P.V. (supra) does

not need to be revisited.”

[Emphasis supplied]

123. It is necessary to note that the Hon’ble Apex Court in

Anwar P. V. (supra) has clarified its position on primary evidence

holding that if an electronic record is used as primary evidence under

Section 62 of the Evidence Act, it may be admissible in evidence

without any compliance of conditions under S. 65B. Arjun Panditrao

Khotkar (supra) held this position to be good law when read without

the words, “under Section 62 of the Evidence Act”, while placing its

derivation in S.65B(1). The Hon’ble Apex Court held that the

certificate under S. 65B(4) is unnecessary if the “original document”

itself is produced, since it is being used as primary evidence of the

information contained in the electronic record. This can be done by

the owner of the device (on which the original electronic record is

first stored) by proving that it is owned and/or operated by him.

124. Commonly, the original electronic record of a CCTV

footage is stored on a memory chip/CD/DVD/hard drive or any

similar device on a computer, DVR or NVR wherein the footage is

recorded. The original electronic record stored on a memory

chip/CD/DVD/hard drive, being the place where the electronic

record is first stored, is said to be the original document, qualifying it

as primary evidence. Such information can be led as evidence by

producing the hard drive, wherein the original document is first

stored, before the Court. In order to prove the information contained

in such electronic record, the memory chip/CD/DVD/hard drive on

which the electronic record was first stored can be produced before

the Court. Similarly, in cases where the device happens to be a part

of a “computer system” or “computer network”, such system or

network or server can be produced before the Court, if it is possible.

In case where the device happens to be a part of a “computer system”

or “computer network” and it becomes impossible to physically bring

such system or network to the Court, then the only means of proving

information contained therein can be, as specified above is, “in

accordance with Section 65B(1), together with the requisite

certificate under Section 65B(4).”

125. The prosecution has relied upon the CCTV footage from

camera no. 2 covering the area of the main gate of the office of

APMC Market, Chikhli. The prosecution has examined PI Gulabrao

Wagh (PW14) and Dy.S.P. Baburao Mahamuni (PW15) in order to

prove the said CCTV footage. From the evidence of Dy.S.P. Mahamuni

(PW15), it appears that the prosecution has brought on record the

CCTV footage copied in pendrive (Article-M). It is stated by Dy.S.P.

Mahamuni (PW15), that its Hash value was taken by NPC Sharad

Giri and accordingly certificate under Section 65B of the Evidence

Act (Exhibit 112) was taken. Though evidence of PI Wagh (PW14)

and Dy.S.P. Mahamuni (PW15) has been corroborated by panch

witness Subhash Bhalerao (PW2) regarding CCTV footage, it appears

that the prosecution has failed to adduce evidence of a person

occupying responsible official position in relation to the operation or

the management of the activities in relation to CCTV in the APMC

Market, Chikhli. Since the prosecution has failed to bring on record

the primary evidence in relation to CCTV footage in the form of hard

disc of the said CCTV footage wherein the footage was stored, it was

necessary for the prosecution to satisfy the ingredients of Sub-Section

(4) of Section 65B of the Evidence Act. Merely because the CCTV

footage has been exhibited by the trial Court and no objection was

raised on behalf of the accused, the CCTV footage cannot be read in

evidence. The said issue is no longer res-integra in view of the

judgment of the Hon’ble Apex Court in Arjun Panditrao Khotkar

(supra). We are, therefore, of the considered opinion that in absence

of compliance of Sub-Section (4) of Section 65B of the Evidence Act,

the CCTV footage from camera no.2 covering the area of main gate

of the office of APMC Market, Chikhli cannot be relied upon as

admissible evidence of the prosecution.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

: NAGPUR BENCH : NAGPUR.

CRIMINAL CONFIRMATION CASE NO. 01 OF 2020

 State of Maharashtra, Vs  Sagar Vishwanath Borkar,


CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.


Dated: SEPTMEBER 07, 2021

JUDGMENT [Per V. M. Deshpande, J.]

Read full Judgment here: Click here

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