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2014 Supreme(Del) 2048
High Court of Delhi
PRADEEP NANDRAJOG & MUKTA GUPTA, JJ.
Achchey Lal Yadav
Versus
State
CRL.A. No. 1171 of 2012
Decided On : 04-09-2014
For the Appellant :Avninder Singh, with Sumi Anand, Advocates.
For the Respondent: Varun Goswami, APP Insp.Vijay Shrotriya, SHO, New Ashok Nagar.
Admissibility of electronic records under Section 65B of the Evidence Act and the necessity to comply with its conditions for proving electronic evidence.
Headnote:
Electronic Records - Admissibility of Electronic Records - Evidence Act, 1872, Section 65A, 65B
Fact of the Case:
Master Harsh aged five years was dropped at the gate of MCD Nigam Prathmik Vidyalaya and did not return home. Ransom calls were received by Shambhu Nath Verma from various phone numbers. The prosecution failed to prove electronic evidence as per Section 65B of the Evidence Act.
Finding of the Court:
The court found that the prosecution did not meet the requirements of Section 65B for proving electronic records. It noted the ignorance of the law by judges and prosecutors in handling electronic evidence. The court directed further evidence to be recorded and remanded the matter to the Trial Court.
Issues: Failure to prove electronic evidence as per Section 65B of the Evidence Act, ignorance of the law by judges and prosecutors in handling electronic evidence.
Ratio Decidendi: The court emphasized the admissibility of electronic records under Section 65B of the Evidence Act and the specific conditions that need to be satisfied for proving electronic evidence. It highlighted the necessity for witnesses to establish compliance with the conditions of Section 65B when presenting computer print outs of call details.
Final Decision: The appeal was disposed of, the previous judgment convicting the appellant was set aside, and the matter was remanded to the Trial Court for further evidence to be recorded.
Pradeep Nandrajog, J. (Oral):
1. Master Harsh aged five years was dropped, as claimed by his mother Rekha at the gate of MCD Nigam Prathmik Vidyalaya on January 22, 2009. He did not return home. As per the case of the prosecution Shambhu Nath Verma received ransom calls on mobile No.9958838258, the registered user whereof was Krishan Kumar, the nephew of Sambhu Nath Verma and had been handed over by Krishan Kumar Verma to Shambhu Nath Verma.
2. The ransom calls were purportedly received by Shambhu Nath Verma from a mobile No.9718657950 and land line Nos.2511540 and 2511091, registered user whereof as Om Prakash Verma. As per the prosecution two other land line numbers 22722880 and 2666014 in the names of Manoj Kumar were also used to make telephone calls to Shambhu Nath Verma at his mobile No.9958838258.
3. We find from the testimony of the witnesses of the prosecution that stored in the computer memory and print outs generated thereof have not been proved as per the requirement of Section 65B of the Evidence Act.
4. With reference to the record of the trial we find that in spite of it being filed and date given to the prosecution to prove an FSL report lying in the Trial Court record as per which ‘Phenobarbital & Cannabinol’ were find in the viscera Ex.1A, Ex.1B and Ex.1C of Harsh Kumar Verma and also on Ex.2B being a plastic colour packet with some sticky substance labelled as ‘Bhola’.
5. We pain to note that in every second case concerning electronic evidence learned Sessions Judges are showing complete ignorance of the law. The learned prosecutors seem to know nothing of the law.
6. In the instant case whereas certificate contemplated by Section 65B of the Evidence Act has been filed concerning the mobile No.9958838258, no such certificates have been filed concerning computer generated print out of the calls concerning the four land line and the second mobile No.9718657958.
7. Two witnesses of MTNL and BSNL have been examined and we refer to only one to illustratively bring home the point. Vijay Kumar Jain PW-21 has deposed as under:-
“I have brought the concerned commercial files pertaining to telephone nos.2511540, 2511091 and 2666014 from our office BSNL Sector 19, Noida. The numbers 2511540 and 2511091 are in the name of ownership of Manoj Kumar, S/o Sh.Ram Gulam Sharma, R/o Sweety Studio, Sector 15, Naya bans, Gali No.2, Sher Singh Market, Noida, he was running STD, PCO on these nos. The telephone no.266614 belongs to and under the ownership of Mr. Gajendra Pal Singh, S/o Durg Pal Singh, R/o in front of Krishna Floor Mill, Railway Road, Dadri, Gautam Budh Nagar 201301 and from this number also PCO was running.
I have seen the call details of the aforesaid three telephone connections on the records. The said call details are Ex.PW21/A, 21/B and 21/C respectively. The details are correct as per our record maintained in our office.”
8. Vijay Kumar Jain was the Sr.Office Assistant, BSNL. He could not have proved and therefore the call details of the three telephone numbers could have been exhibited as PW-21/A, Ex.PW-21/B and Ex.PW-21/C, in the manner the learned Trial Judge has recorded his testimony.
9. Section 65A and 65B of the Evidence Act, 1872, inserted by Act No. 21 of 2000 read as under:-
“65A. Special provisions as to evidence relating to electronic record.-
The contents of electronic records may be proved in accordance with the provisions of Section 65B.
65B. Admissibility of electronic records.
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evide
