CCTV Photographs Inadmissible Without Certificate U/S 65B Evidence Act: Bombay High Court Acquits Man In Toddler Murder Case

The Division Bench set aside the conviction recorded by the Special POCSO Court at Thane, observing that the prosecution machinery “could not stand on its own legs” and that the police appeared to have exerted pressure to somehow secure a conviction in a deeply disturbing case involving a missing child. The Court, while examining the testimony of prosecution witnesses and the appellant’s own statements, noted that the material on record initially suggested that the appellant had found the child abandoned at the railway platform and attempted to locate her guardians. Evidence indicated that he approached persons present there, claimed he intended to arrange food for the child, and even contacted police personnel at the spot seeking assistance.

Justice A.S. Gadkari and Justice Shyam C. Chandak observed, “According to PW.8, the photographs (Exhs.23, 24 & 25) were the screenshots of the said CCTV footage. Said photographs were proved by showing it to PW.1. But, neither the relevant CCTV footage was produced nor the person who had copied and provided that CCTV footage to the police was examined by the prosecution. Even the necessary Certificate to be issued under Section 65-B of the Indian Evidence Act was not produced to support the prosecution’s claim that said photographs were produced by the cameras and the computers installed at Platform No.10 by the RPF. Said photos were inadmissible without such a Certificate and could not have been proved through PW.1…There is no difference between a CCTV footage (CCTV video recording) and its hard copy in the form of prints, as both are computer output and thus, an electronic record. In the case in hand, when the photographs (Exhs.23, 24 & 25) were referred to PW.1 to prove the same, that mode of proof was not objected by the defence…Therefore, as held in Sundar @ Sundarrajan (supra), without producing the relevant original CCTV footage, without examining the person who had copied and provided it and in absence of the supporting Certificate under Section 65-B of the Indian Evidence Act, the said photographs were inadmissible in evidence. Hence, we are of the view that the prosecution cannot be allowed to take an advantage of an inadmissible photographs as well as an illegal mode of proving those photographs though PW.1 more particularly when the charge was of a serious offence. Otherwise, this cannot be a fair trial”.

“…on re-appreciation of the prosecution evidence this Court finds that, the prosecution has failed to prove its case beyond a reasonable doubt. In the facts and circumstances of the case, it appears that, since the matter was taken to this Court in the Writ Petition, stage was managed by the police pressuring the Appellant to give the confessions and taking help of PW.4, PW.5, PW.6 and PW.9 to show that the case was resolved. The chain of circumstances is not established by the prosecution and in fact it is incomplete. However, the learned Judge of the trial Court failed to appreciate the prosecution evidence in its correct perspective and in accordance with law…Considering the evidence as a whole, it appears that both the confessions were the result of the pressure exerted upon the Appellant by the police as the police machinery could not stand on its own legs. In view of the above discussion, both the confession must be ignored and we have neglected it, accordingly”, the Bench further noted.

Advocate Amit Gharte appeared for the appellant and Vinod Chate, APP appeared for the respondent.

The case dates back to August 20, 2013, when a toddler went missing while playing outside her residence during a birthday celebration at Manpada, Thane. A kidnapping case was registered after frantic searches by her parents failed to trace her.

During investigation, CCTV footage from Thane Railway Station showed an unknown man picking up an abandoned child left on Platform No.10. The appellant, a scrap collector living near the railway station, was later identified as that individual.

Initially, the appellant consistently stated that he had merely found an abandoned child, tried to locate her guardians, approached railway personnel, and ultimately handed the child over to another person who claimed responsibility for her care.

The investigation took multiple turns, where Police traced a child nearly a year later and briefly reunited her with the complainant parents. However, DNA testing revealed that the traced child actually belonged to another couple, fundamentally weakening the prosecution narrative regarding the fate of the missing girl.

The Court noted that the case underwent a “dramatic twist” thereafter, as months after the initial investigation, while the appellant was already in custody in another offence, police recorded a disclosure statement allegedly confessing to rape and murder of the child and disposal of the body in the Indrayani river. Despite extensive searches, neither the body nor any weapon was ever recovered.

The trial court had framed charges against the accused under multiple provisions of the Indian Penal Code, 1860, including Section 363, Section 376(2)(i), Section 302, and Section 201. In addition, charges were invoked under the Protection of Children from Sexual Offences Act, 2012, including Section 4, Sections 5(l) & 5(m), Section 6, as well as Sections 9(l) & 9(m) and Section 10.

As regards the co-accused, the prosecution primarily invoked Section 363A IPC, read with Section 34 IPC. However, during the course of trial, proceedings against them were either separated or they were ultimately acquitted, leaving the principal allegations to be adjudicated against the main accused.

The Bench after considering the relevant facts, absence of cogent material, and the fact that the statement of the appellant did not bear his signature, noted “Additionally, the conjoint reading of the testimonies of these witnesses and the confessions indicate that when the Appellant had found the victim, he wanted to feed her. Meanwhile, twice he had contacted the police at Platform No.10 as he wanted to report about the victim to Thane Railway Police Station. However, the said police to whom the Appellant had contacted, did not take him seriously. Thereafter, throughout the day the victim was in the company of the Appellant. Since, the victim was away from her parents and in the company of an unknown, therefore it is safe to presume that she must have repeatedly cried during the transit, if not constantly. However, the Appellant did no wrong with her. As deposed by PW.9, in the Math, the Appellant had fed the victim with milk and rice. These fact indicate that, till then the Appellant had taken good care of the victim and did not develop any desire to commit the present crime…”.

“…The prosecution has not examined Kisan Pardeshi to prove that the Appellant had purchased Ganja from him and he then consumed it. We are unable to understand as to how Kisan Pardeshi was selling Ganja so easily, that too near a sacred place. It is not proved that the Appellant and PW.4 were in jail at the same time. Therefore, the claim of PW.4 was not reliable that he and the Appellant had become friends in the jail, PW.4 knew the Appellant and that, they had smoked Ganja together. PW.9 has not specifically deposed that she knew the Appellant prior to the incident. As per the prosecution case for last 2 ½ years the Appellant was staying on the footpath at Thane Railway Station. However, PW.9 has not deposed when she had seen the Appellant last before he had started staying at Thane Station. Therefore, the identification of the Appellant by PW.5 and PW.9 was based on the photographs (Exhs.23 to 25). But, as held above, said photographs were not proved as required in law; nor the same were enough clear to identify the alleged offender and the victim seen therein. Despite needed, no TIP was held in respect of PW.3 and PW.5 as the Appellant was unknown to them. Therefore, the prosecution case does not appear probable that only because the victim was crying, the Appellant had committed her murder and caused disappearance of the evidence”.

Cause Title: Shantilal Dashrath Gaikwad State of Maharashtra [Neutral Citation: 026:BHC-AS:14256-DB]

Appearances:

Appellant: Amit Gharte, Advocate.

Respondent: Vinod Chate, APP.

Click here to read/download the Judgment