Introduction:
In a significant ruling impacting the admissibility of electronic evidence, the Kerala High Court in Umer Ali v. State of Kerala (CRL.A NO. 652 OF 2023) held that a government expert’s report obtained under Section 293 of the CrPC cannot serve as a substitute for the statutory certificate under Section 65B of the Indian Evidence Act. The case involved an appeal by Umer Ali, who had been convicted and sentenced to life imprisonment for offenses under Sections 302, 376(A), and 201 of the IPC. The prosecution alleged that Ali had dragged a woman into a hotel, assaulted her, raped her, and then fatally attacked her with a hoe before damaging the CCTV camera at the crime scene. The Trial Court relied on a DVD extracted from a DVR by the Forensic Science Laboratory (FSL) as crucial evidence without producing the original DVR or the mandatory Section 65B certificate. On appeal, the Division Bench of Justice Raja Vijayaraghavan V and Justice P.V. Balakrishnan scrutinized the evidentiary admissibility of electronic records and emphasized the fundamental distinction between expert reports under Section 293 of CrPC and certification under Section 65B of the Evidence Act. The High Court found that the prosecution and Trial Court had failed to comply with the law, resulting in a miscarriage of justice. Consequently, the conviction was set aside, and the matter was remanded for further evidence presentation per legal standards.
Arguments of Both Sides:
The appellant’s counsel, led by Advocates P. Mohamed Sabah, Libin Stanley, Saipooja, Sadik Ismayil, and R. Gayathri, argued that the prosecution’s case was flawed due to its reliance on CCTV footage obtained from a DVD without the requisite Section 65B certification. They contended that the Trial Court convicted the appellant based on secondary electronic evidence that lacked legal validity, as the primary evidence—the DVR—was neither produced nor authenticated. The defense emphasized that as per the Supreme Court’s rulings in Anwar P.V. v. Basheer (2014) and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), secondary electronic evidence, such as DVDs containing extracted footage, cannot be admitted without a proper Section 65B certificate. Furthermore, the defense pointed out that the FSL’s expert report merely analyzed the contents of the DVD and did not render the extracted footage admissible. The failure to produce the original DVR, which was initially in the Trial Court’s possession but later disregarded in favor of the DVD, was a significant lapse in the prosecution’s case.
On the other hand, Public Prosecutor Neema T.V., representing the State of Kerala, contended that the identification of the accused was unequivocally established through the CCTV visuals, and a Section 65B certificate was unnecessary since the original hard disk was available. The prosecution maintained that an FSL report is admissible under Section 293 of the CrPC, and therefore, the extracted DVD, being an official forensic record, should be treated as valid evidence. The State argued that requiring a separate Section 65B certificate in cases where an expert report is available would be redundant and would place an undue burden on law enforcement agencies investigating electronic evidence. The prosecution further claimed that even if the DVR was not used directly, the visual clarity of the extracted footage was sufficient to establish the identity of the accused beyond a reasonable doubt.
Judgement:
After meticulously evaluating the legal submissions, the Kerala High Court concluded that the prosecution had failed to meet the statutory requirements for electronic evidence admissibility. The Court ruled that an expert’s report under Section 293 of the CrPC serves a different purpose from a Section 65B certificate. While an expert’s report analyzes electronic evidence, it does not confer admissibility on secondary electronic records. The Court elaborated that a Section 65B certificate is a mandatory statutory prerequisite to make a secondary electronic record admissible as evidence. It further clarified that an FSL report merely provides details about the extraction process and does not authenticate the extracted data.
The Division Bench emphasized that just because an expert from the Forensic Science Laboratory retrieved video footage onto a DVD does not automatically make that footage admissible as evidence of its contents. The Court pointed out that “there is no exemption granted in law to any authority, including the Forensic Science Laboratory, from complying with the requirement of certification under Section 65B while making copies from an original electronic record.” The Court also criticized the prosecution’s failure to produce the DVR, which was the primary evidence, and stated that reliance on a DVD alone, without proper certification, was legally untenable.
The Court reiterated that a fair trial requires strict adherence to the rules of evidence, especially when electronic records form a crucial part of the prosecution’s case. The judgment highlighted that the failure of the Trial Court to insist on compliance with Section 65B amounted to a miscarriage of justice, as it deprived both the victim and the accused of a legally sound adjudication. The High Court held that a mere expert analysis of an electronic record does not replace the statutory requirement of authentication, stating: “An 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.” The Court clarified that had the prosecution produced the DVR itself, the requirement for a Section 65B certificate would not have arisen. However, since the prosecution opted to rely solely on the extracted DVD without proper certification, the evidence became inadmissible.
Given these fundamental flaws in the evidentiary record, the Court allowed the appeal in part. The conviction and life sentence imposed on the appellant were set aside, and the case was remanded to the Trial Court for reconsideration. The High Court directed the Trial Court to ensure that electronic evidence is presented in compliance with the law and that a fair trial is conducted. The judgment reinforces the importance of procedural safeguards in the digital age, ensuring that electronic evidence is subjected to rigorous scrutiny before being relied upon in criminal proceedings.