Certificate U/S 65B Evidence Act Mandatory To Admit Electronic Evidence, Expert's Report U/S 293 CrPC Not Its Substitute: Kerala High Court

The Kerala High Court has held that the report of a government expert obtained under Section 293 of the CrPC cannot be considered as a formal substitute for a certificate under Section 65B of the Evidence Act which is used to prove the validity of electronic evidence. The Court stated that expert report under Section 293 of CrPC only analyses the evidence and that does not automatically makes the electronic record admissible.In the facts of the case, the DVR initially produced before the Trial Court did not work and therefore, the Forensic Science Laboratory made a DVD extracting contents from the DVR which was produced without certificate under Section 65B. The original DVR was not produced and only the DVD was used by the Trial Court to convict the appellant.At this juncture, the Division Bench of Justice Raja Vijayaraghavan V and Justice P. V. Balakrishnan outlined the difference between certificate produced under Section 65B of the Evidence Act and a government expert's report under Section 293 of the CrPC. Court stated, “...an expert's report cannot be considered as a formal substitute for Section 65B(4) certificate in the eyes of law since, they serve two different purposes. A Section 65B certificate is a specific statutory requirement to make a secondary electronic record admissible as evidence, while Section 293 Cr.P.C. report is evidentiary material in its own right, typically presenting the results of forensic analysis. A Section 293 Cr.PC report being admissible, simply means that the report can be read as evidence of what it states and it does not automatically validate any attached electronic media… The expert's statement, however authoritative, is not the same as the statutory certificate that permits the court to treat the DVD as evidence of the video's contents.”In this appeal, the appellant challenged his conviction and life sentence imposed for committing offences under 302 (punishment for murder), 376(A) (punishment for causing death or resulting in persistent vegetative state of victim) and 201 (causing disappearance of evidence) of the IPC. The prosecution case was that the appellant dragged a woman into a hotel and attacked her using hoe and committed rape. It was alleged that after commission of rape, the appellant inflicted serious injuries on the head and face of the victim with hoe causing her death. It was also alleged that the appellant damaged the CCTV camera at the place of occurrence. The Counsel for appellant submitted that prosecution case relies on footage from the CCTV camera which was not proved by law. It was submitted that only DVDs were produced which contained mirror images of visuals from DVR without certificate under Section 65B of the Evidence Act and was thus not admissible. On the other hand, Public Prosecutor submitted that certificate under Section 65B is not required when original hard disk is produced. It was submitted that identity of accused is clearly proved from the CCTV visuals. The Court on analysing evidence concluded that the death of the woman was caused by homicide. However, it noted there was no Section 65B certification for the DVD and there was no explanation regarding the hard disk in the DVR that was originally produced before the Court. It thus observed that original evidence, that is the hard disk inside the DVR was not produced before the Trial Court.Further, the High Court noted that conviction was based on a DVD copy which is secondary evidence without certificate under Section 65B of the Evidence Act. It relied upon the Apex Court decisions in Anwar v Basheer (2014) and Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal (2020) to state that DVD produced before the Trial Court which contained contents extracted from the DVR should have been produced along with certificate under Section 65 B.Court added, “There is no exemption granted in law to any authority including the Forensic Science Laboratories from not complying with the requirement of certification under Section 65B, while making copies from the original electronic record.”The Court stated that just because expert examined the DVD and submitted a report does not mean that certificate under Section 65B is not required. “For instance, if the FSL report says “I retrieved video file ZYZ from the DVR onto a DVD”, the report is proof that the analyst made such retrieval. But the video recording(the DVD) still has to be independently admissible to be viewed and relied upon as evidence of the facts depicted.”In the facts of the case, the Court noted that this would not have been the situation if the prosecution had produced original evidence which is the DVR itself. It stated that the prosecution had relied upon DVDs which is secondary evidence that too without certificate under Section 65B. Accordingly, the Court observed that both the Trial Court and the Prosecution failed to meet the requirements of law. It held fair trial was not conducted and prejudice was caused to both the victim ...

Certificate U/S 65B Evidence Act Mandatory To Admit Electronic Evidence, Expert's Report U/S 293 CrPC Not Its Substitute: Kerala High Court

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