Under which circumstances the court can release accused on bail relying on metadata of photo submitted by him by taking the plea of alibi?

 It is the submission of learned counsel for the applicant that applicant is suffering in confinement on false pretext. Counsel for the applicant referred the letter dated 28.02.2020 written by Station House Officer, Police Station Nai Saraye, District Ashoknagar addressed to Trial Court and report of Cyber Forensic Lab, Bhopal containing digital forensic examination report dated 12.12.2019 and subsequent report filed by the Cyber Forensic Lab, Bhopal indicates that photograph submitted by the applicant was in support of his innocence on the basis of plea of alibi. From perusal of Metadata of photograph, it is prima facie clear that the present applicant was present at Bakaspur Village Khajuri, Tahsil Badarwas, District Ashoknagar on 02.04.2019 at about 1.34 pm and time of incident is around 1.30 pm - 2.00 pm on the same day at Village Ranga, Tahsil Nai Saraye, District Ashoknagar. The distance of place of incident is around 60 kms.- 70 kms. from the place where applicant was present at 1.34 pm. Such distance can only be covered by the applicant in not less than one hour at least. Therefore, Metadata of photo and report indicate that he was present at that time at a place 60 kms.-70 kms. away from the place of incident and no tampering has been made in photograph.

According to applicant, benefit of doubt so far as grant of bail is concerned be given to him because it is the case of over implication. Applicant has been arrayed as accused on false pretext. He does not bear any criminal record. Confinement amounts to pretrial detention. 

This is the case mainly in respect of digital forensic evidence and Metadata of any photograph is a big tool in the hands of forensic experts to reach to the truth about the exact nature of incident. Trial Courts are expected to scrutinize the said scientific tool with care and deep study so that forensic examination of evidence can be done to its higher standards. Metadata can be very useful especially in cases where plea of alibi is taken by the parties or accused in particular. Photo, Metadata details and report of Digital Forensic Expert should carry due certification as per Evidence Act and other relevant provisions.

Madhya Pradesh High Court

Surendra vs The State Of Madhya Pradesh on 16 June, 2020.

M Cr. C No. 15796/2020

Author: Anand Pathak

Bench: Anand Pathak

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Bombay HC: What precautions Session Judge should take while putting question U/S 313 of CRPC to accused?

 I have perused the 313 Cr. P.C. statements of the appellants recorded by the learned Judge. While recording the 313 Cr. P.C. statements of the appellants, the learned Judge did not frame proper questions. The material part of the incriminating evidence adduced by the prosecution was not put to the appellants. In this context, it is necessary to see some of the questions framed by the learned Judge. As stated above, the proof of the identity of the appellants, being the perpetrators of the crime, was the fact in issue. The learned Judge was required to frame proper questions on the basis of the available evidence of the witnesses with regard to their identification. As stated above, the identification of the appellants was established by pointing out their photographs to the prosecutrix. It was not put to the appellants that they were identified by the victim before the Court in a particular manner. The incriminating part of her evidence with regard to the identification of the appellants in the Test Identification Parade was not specifically put to the appellants. It is further seen that the CA reports and the DNA report, being the important pieces of evidence, ought to have been put to them specifically in their 313 statements. Question No. 35 is common for both the appellants. It needs to be extracted. It is as follows:

“Q. No. 35. It has come in the evidence of PW-10 Satish K. Farkade (Ex.97) during investigation he prepared spot panchanama, seizure panchanama. He seized motor cycle, sickle, chapple, godahdi, clothes on the person of victim and muddemal sent for C.A. and obtain C.A. report. What do you have to state about it ?”{Para 29}

30. Perusal of this question would show that the incriminating material in the form of CA reports was put to the appellants in this manner. Perusal of 313 Cr. P.C. statements of the appellants would show that the DNA report was not at all put to them. Even if the appellants had admitted the DNA report, the learned Judge was required to put the same to the appellants in their 313 Cr. P.C. statements. It needs to be stated that, in this case, the appellants have not admitted the DNA report. It is pertinent to mention that, time and again, it has been observed that proper care is not taken while framing the questions in the 313 Cr. P.C. statement of the accused on the basis of the incriminating material. Sometimes, the composite questions are framed. The answer to the part of the question may be in the affirmative and the answer to the part of the question may be in the negative. Such a composite question needs to be avoided. The appellants are the rustic villagers. Similarly, the victim is also a rustic villager. The incriminating circumstances related to the CA and DNA reports had not been put to them. Failure of the learned Judge to follow the provisions of law has caused miscarriage of justice. It has prejudiced not only the appellants but also the victim.

31. In this case, the DNA report has not been put to the appellants. The Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : AIR 1984 SC 1622] has held that incriminating piece of evidence, if not put to the accused in his 313 Cr. P.C. statement, cannot be made the basis of the conviction of the accused. It has to be excluded from consideration. It is to be noted that, while recording the evidence, the learned Prosecutor and the learned Judge adopted a very casual and careless approach. The DNA Expert and the Chemical Analyzer have not been examined. The learned Judge, while examining the accused under Section 313 of the Cr. P.C., did not even care to frame a proper question and put the DNA report to the accused so as to enable them to explain it. This has caused prejudice to the appellants. Similarly, it has proved prejudicial to the prosecutrix, who had suffered the ordeal of a horrible incident. She was not at fault. This has resulted into miscarriage of justice.

In the High Court of Bombay

(Before G.A. Sanap, J.)

Criminal Appeal No. 155 of 2022

Puranlal Sakaru Dhurve. Vs State of Maharashtra, 

Criminal Appeal No. 155 of 2022 and Criminal Appeal No. 352 of 2022

Decided on September 30, 2024

Citation: 2024 SCC OnLine Bom 3437.

Read full Judgment here: Click here.

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Bombay HC: What precautions Session Judge should take while admitting the CA reports and the DNA report?

  The Prosecutor has not examined the carrier, who had deposited the samples with R.F.S.L., Amravati. The Investigating Officer did not produce on record the extract of the Malkhana register. Malkhana in-charge was not examined. It is to be noted that the samples had been collected on or before 6th April, 2016. The samples had been forwarded to the R.F.S.L., Amravati, vide Exh.106 on 11th April, 2016. The prosecution has failed to place on record the evidence with regard to the custody of the samples and the care taken to preserve the samples during this period. If the carrier had been examined, then he would have highlighted the relevant aspects. The CA reports, in this case, are very important. The CA reports had been tendered in the evidence at the time of the examination of the Investigating Officer (PW-10). The learned Judge did not pass a specific order under Section 293 of the Cr. P.C. and admitted these reports in evidence. The CA reports are very important. On the basis of the CA reports, a case is sought to be made out that the blood sample and the semen samples matched with the blood samples of the appellants. {Para 24}

26. The Prosecutor failed to examine the Chemical Analyzer, Amravati, to prove the contents of the CA reports. Similarly, he has failed to examine the DNA Expert from R.F.S.L., Nagpur. It is to be noted that DNA evidence is a scientific opinion. It has to be proved like any other document. The prosecution has to establish the link by adducing cogent and concrete evidence from the time of the collection of the samples till the samples are finally analysed by the F.S.L. In this case, the carrier has not been examined. The Chemical Analyzer has not been examined. Similarly, the DNA Expert has not been examined. 

27. In this case, the important witnesses have not been examined. There is no evidence with regard to the packaging, storage, handling, and preservation of the samples to rule out possibility of tampering or contamination. Perusal of the record would show that there is no reason for non-examination of these witnesses. The learned Judge has placed implicit reliance on the CA reports and the DNA report. The complete DNA report is not part of the record. Therefore, the finding recorded by the learned Judge that the DNA report fully corroborates the testimony of the prosecutrix is without application of mind. It is to be noted that it was the duty of the learned Judge at least to question the Prosecutor with regard to the evidence to prove the contents of these reports. The record shows that the learned Judge, while recording the examination-in-chief of the Investigating Officer, exhibited the CA reports and the DNA report. I fail to understand as to how the Investigating Officer could be the author of the CA reports and the DNA report. The evidence of the Investigating Officer could not be said to be legally admissible evidence to prove the contents of the CA reports and the DNA report. The evidence of the Investigating Officer could be relevant to the extent of the procedural part with regard to forwarding of the samples, preservation of the samples, and the receipt of the DNA report. In such a case, the learned Judge was required to pass a separate order under Section 293 of the Cr. P.C. and admit such scientific evidence in the case. It is to be noted that the helpless prosecutrix had no control over this. The acceptance of the submissions advanced by the learned advocates for the appellants, highlighting the drawbacks and lacunas, would cause miscarriage of justice. The helpless prosecutrix would be deprived of her right to get justice. In my view, this is a very serious matter.

28. Before parting with this subject, I must mention that while admitting the CA reports and the DNA report, without examining the Chemical Analyzer and the DNA Expert, the Court has to pass an appropriate order. First and foremost, the learned Presiding Officer shall insist for the examination of the Chemical Analyzer and the DNA Expert to prove the contents of the reports. The examination of the Chemical Analyzer and the DNA expert, in such a case, can take care of the custody, preservation, and handling of the samples from the time of the receipt till the final analysis of the samples. In my view, this is a very vital flaw in the case of the prosecution, which has been crept in on account of the casual and careless approach of the Prosecutor and the learned Presiding Officer.

In the High Court of Bombay

(Before G.A. Sanap, J.)

Criminal Appeal No. 155 of 2022

Puranlal Sakaru Dhurve. Vs State of Maharashtra, 

Criminal Appeal No. 155 of 2022 and Criminal Appeal No. 352 of 2022

Decided on September 30, 2024

Citation: 2024 SCC OnLine Bom 3437.

Read full Judgment here: Click here.

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Whether Session Judge can permit prosecution to show photo of accused to victim for his identification?

Learned advocate Mr. R.R. Vyas took me through the entire record and pointed out the material flaws in the case. Learned advocate submitted that, on the date of the evidence of the informant, the appellants were not produced before the Court. It is submitted that the evidence recorded in the absence of the accused was contrary to the mandate of Section 273 of the Criminal Procedure Code, 1973 (for short, “Cr.PC”). Learned advocate submitted that the learned Judge, without insisting for the production of the appellants while recording the evidence of such a star witness, showed some photographs of the appellants from the record to the informant to establish their identification. Learned advocate further submitted that the trial conducted against the appellants was not a fair trial. {Para 8}

 The identification of the accused in the Court has to be strictly proved in such cases. The learned second Judge, who recorded the evidence of PW-4, did not even bother to secure the presence of the appellants. The learned Judge adopted a shortcut method. The learned Judge, instead of securing the presence of the appellants, showed some photographs from the record to the informant. On going through the record, I am shocked that the full-size photographs of the appellants are not on record. The learned Judge has not made a note as to which photographs had been shown to the appellants. It is further seen that those photographs have not even been marked as articles or exhibits.

In the High Court of Bombay

(Before G.A. Sanap, J.)

Criminal Appeal No. 155 of 2022

Puranlal Sakaru Dhurve. Vs State of Maharashtra, 

Criminal Appeal No. 155 of 2022 and Criminal Appeal No. 352 of 2022

Decided on September 30, 2024

Citation: 2024 SCC OnLine Bom 3437.

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Can Police Disclose WhatsApp Chats and Photos Collected During Investigation Under RTI Act?

I. Conclusions of the Court

28. The competing arguments advanced on behalf of the parties lead to the following conclusions :

a)􀀁 The designated Information Officer has a duty and an obligation to apply his

mind on the nature of the information which is to be furnished to an

applicant who has sought for such information. This obligation calls for an

active determination taking into account Section 8(1) (a)-(j) and whether an

overwhelming pressure of public interest justifies the disclosure of the information at hand.

b)􀀁 The determination must also involve an assessment of whether the personal

information has any nexus with a public activity or furnishing of such

information would cause an unwarranted invasion of the privacy of the

individual concerned.

c)􀀁 The IO must also take into account the mechanism provided under section

11 of the Act involving the information supplied by a third party and treated

as confidential by that third party. In essence, the disclosure must be with

the consent of the third party.

d)􀀁 The IO must also consider whether the information is in the public domain

on the date of the application made for it and trace the movement of the

information from the private to the public domain. In other words, the IO

must see whether the information was put in the public sphere voluntarily

or under threat or compulsion.

e)􀀁 The determination must also include a fact-check as to whether the

information travelled to the public domain at the instance of one party or all

the parties who created and shared the content of the information.

f)􀀁 The determination must be nuanced and sensitive where one of the parties

to the conversation is no longer alive. In such cases, the consent of the other

(living) party to the disclosure of the information may not be relevant for the

purposes of section 8(1)(j) of the Act.

g)􀀁 The significance of section 8(1)(j) which upholds the right to privacy and

ultimately the reputation and dignity of an individual under Article 21 of the

Constitution goes against the tide of a free flow of information and remains

steadfast in holding on to the private space of an individual. The significance

of this provision must not be forgotten or diluted under any circumstances

(Ref. Subramanian Swamy vs. Union of India, Ministry of Law; (2016) 7 SCC

221).

29. In view of the above discussion is allowed and disposed

of by directing the Police Authorities to immediately withdraw the entire series of

photographs and WhatsApp messages between the deceased and

and treat the same as private information which falls within the

clamp of section 8(1)(j) of The Right to Information Act. The authorities are to

ensure that the WhatsApp messages and the photographs are not disclosed to any

person or authority by way of an application under the Right to Information Act or

otherwise.

 IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

Appellate Side

X Vs. State of West Bengal & Ors.

Present :-

The Hon’ble Justice Moushumi Bhattacharya.

Delivered on : 29.09.2022.

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Whether it is necessary for a party to produce negative of photograph along with photo for confronting witness in cross examination?

Order 7 Rule 14(3), Order 8 Rule 1A(4) and Order 13 Rule 1(3) all provide that the rule for filing a document alongwith pleadings and/or before the settlement of issues does not apply to documents with which a witness may be confronted in his cross examination. The question which arises is as to with what documents a witness can be confronted; whether with those mentioned in Sections 144 and 145 of the Evidence Act only or with others also. In the opinion of this court, no limitation can be placed on the documents which can be confronted to the witness. The present case itself gives a classic illustration in this regard. The witness is an architect who claims to have inspected the property and reported that the tenants have carried out unauthorized changes in the property and which changes have lowered the value, utility or security of the building. The endeavour of the cross examining party would be to falsify the said report. The same can be done by showing to the said witness the photographs or other material which would run contrary to the testimony or report of the said witness. Such material would not necessarily be one to which the witness would be a signatory or a scribe. The said material can be in the form of photographs and from the replies of the witness to the said material it can be established whether the witness has visited the property or not and has inspected the same or not and whether his reporting is correct or not. For instance if the witness has deposed as to the weakening of the structure by removal of a wall and if from the photograph it is apparent that the wall was merely the partition wall and the structure is otherwise supported by pillars and beams then I see no reason why such photographs cannot be shown to the witness and/or why he cannot be confronted with the same.

7. The contention qua negatives is also not correct. The negatives are required when photographs are sought to be proved in examination in chief and not when used for confronting the witness.

IN THE HIGH COURT OF DELHI

C.M.(M) Nos. 692, 702, 9953 and 10057/2009

Decided On: 30.11.2009

 Surinder Kumar Bajaj  Vs.  Sheela Rani Pasricha

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How to prove photo in evidence?

 It is apropos to refer to the judgment of the Division Bench of this Court, in support of the view I have taken, in the case of Laxman Ganpati v. Anusayabai . The Division Bench in the said case was considering the proof of photo copy, negative as well as enlarged print and has considered the provisions as laid down under Sections 62 and 65 of the Evidence Act. It is held that it is only when the person who takes a photograph and develops it into a negative himself comes into the box and deposes to both those facts, that a negative becomes admissible in evidence. As far as the enlarged print is concerned, the position is still worse, for no point or enlargement can be admitted in evidence without its negative being produced and proved in the matter.

Bombay High Court

Ramdas Bhatu Chaudhary Since ... vs Anant Chunilal Kate on 27 July, 2006

Equivalent citations: 2006 (6) MhLj 571,2007(1) ALLMR313

Bench: S Deshmukh

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