The Madhya Pradesh High Court observed that the certificate under Section 65B of the Indian Evidence Act, 1872 is mandatory to prove electronic record which shall be issued by an authorised person.

The Indore Bench observed thus in a batch of criminal appeals filed by the accused persons under Section 374(2) of the Criminal Procedure Code (CrPC) against the judgment of the Additional Sessions Judge by which they were convicted under Sections 364, 307, 201, and 34 of the Indian Penal Code (IPC).

A Single Bench of Justice Prakash Chandra Gupta held, “From the foregoing analysis, it is apparent that certificate u/S 65B is mandatory to prove electronic record and such certificate shall be issued by authorized person, as prescribed u/S 65B(4).”

Advocate Manish Kumar Sharma appeared on behalf of the appellants while Government Advocate Bhagyashree Gupta appeared on behalf of the respondents.

Factual Background -

A man had two sons who used to study and live in a rented room in Indore colony. There was friendship between his elder son and a girl and one day he told his room partner that he was going out for breakfast but he did not return. His phone could not be reached and even after searching for a while, he could not be found, hence, a written complaint was filed by his father. During inquiry, it was found that the convict was in love with the aforesaid girl and hence, he along with the other convicts kidnapped the complainant’s son in a car.

A case was registered and then the convicts were arrested. The Trial Court framed the charge against the convicts who abjured their guilt and claimed to be tried. In turn to prove its case, the prosecution examined 15 witnesses and after completion of prosecution evidence, the convicts were examined under Section 313 of CrPC. They took the defence that they were innocent and were falsely implicated though no witness was examined by the convicts in their defence. Hence, the Trial Court convicted them and aggrieved by this, they were before the High Court.

The High Court in view of the facts and circumstances of the case said, “Apart from that SI Kamal Kishore (PW/11) in paragraph 10 of examination-in-chief deposed that he received customer applications form of accused persons and Mohit (PW/1) from Jio and Idea company and received CDR of mobile phone No.91 7999918396 in 72 pages. In relation to the aforementioned, he had prepared certificate u/S 65B of the Evidence Act. But in the case, CDR of mobile phone has not been proved by this witness and as per statement, he himself prepared certificate u/S 65B of the Evidence Act (Ex.P/21). Further, he stated that he also prepared certificate u/S 65B of the Evidence Act (Ex.P/22 & P/23) in respect of DVD (Article A-7 & A-8) which were prepared from electronic shop of Deepak Vijayvargiya (PW/6) and Hero Vinayak Motors, therefore, it appears that this witness himself prepared the certificates u/S 65B of the Evidence Act, while as per established law, certificate u/S 65B of the Evidence Act can be issued by a responsible official person in relation to the operation of the relevant device or the management of the relevant activities.”

The Court added that the copy of electronic record in form of DVD which are prepared by SI are not admissible in the evidence. It took note of the fact that at the time of the incident, the complainant’s son had enough time with the convicts because of which he was able to recognize them later and that the witness at the examination before the Trial Court has also identified them. Hence, the Court said that the identification by the witness to the convicts is reliable.

“… it appears that though case diary statement of witness has been taken belatedly, but it appears from the statement of Prashant Newalkar (PW/7) that at the time of discharge of Mridul (PW/2) from hospital, a pipe was inserted in his mouth to enable him to eat food. He had fractures in skull and jaw and as per statement of Dr. Alok Madaliya (PW/8), he had treated Mridul (PW/2) again on 28.03.2018 as outdoor patient. Therefore, it appears that the injured was not well for a long period”, observed the Court.

Furthermore, the Court said that delay in recording case diary statement is not fatal for the prosecution and though there are some omissions in case diary statement, there is no material omission and contradiction in the statement in respect of the incident.

“Even the statement of Mridul (PW/2) has been recorded before the Trial Court after more than 8 months. Therefore, minor omissions and contradictions are natural. Hence, on the basis of minor omission, contradiction and discrepancies, cannot affect credibility of the witness. … Consequently, from connecting the dots of the aforementioned facts and circumstances of the case, considering the statement of injured Mridul (PW/2) and other evidences, it is apparent that the accused persons had fulfilled all the essential elements of offences convicted i.e. they formed common intention and abducted injured Mridul (PW/2) from his residence, took him to aforementioned remote location, had beaten him and had thrown his body in deep trench with intent to kill him and hide his body/ disappear the evidence”, it concluded.

Accordingly, the High Court dismissed the appeals and upheld the conviction of the appellants.

Cause Title- Akash v. State of Madhya Pradesh

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