Electronic Records – Non-compliance of S.65-B(2) would result in inadmissibility of evidence as legal evidence.

Mr. A.B. Chaudhari, J.:- Being aggrieved by the judgment/order dated 29.09.2010/05.10.2010 passed by the learned Sessions Judge, Faridabad, in Sessions Case No.95 (RBT) of 30.09.2009, by which the appellant, namely Amiruddin, was convicted for commission of offence punishable under Section 302 and 304-B of Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to undergo Rigorous Imprisonment for life and to pay fine in the sum of Rs.50,000/-; in default of payment of fine, to further undergo Rigorous Imprisonment for one year, the present appeal has been preferred by the appellant-Amiruddin.

FACTS

2. In brief, the prosecution case is that the deceased Saiyna was remarried to the appellant-Amiruddin, resident of Gulawasti, District Bulandshahar (UP), on 27.04.2008. Saiyna had two daughters from her first marriage, but her daughters were carried by her to the house of Amiruddin. They started residing at Faridabad and Amiruddin was working in an Industry and used to get good salary also. His mother, Haseena used to taunt Saiyna saying that her mother had not given anything in the marriage and that they were to marry Amiruddin somewhere else in order to get good dowry amount. Saiyna informed her mother about the ill-treatment given to her. On 10.05.2009, when Shamim, mother of Saiyna, went to meet her in Indra Colony, Faridabad, Saiyna told her that Amiruddin was not even providing her food for three days consecutively and was harassing her for bringing motorcycle in dowry. Shamim went back after pacifying Saiyna. She reached her house at around 9:00 P.M., but then she received a telephonic call from her elder daughter Nazreen that Saiyna was set ablaze by her husband Amiruddin after pouring kerosene and was admitted to B.K. Hospital, Faridabad. On getting the said information, the complainant- Shamim and her elder daughter Nazreen rushed to the Hospital, but could reach there only at 3:00 A.M. on 11.05.2009 and saw that Saiyna was having burn injuries around her chest and stomach and was lying unconscious in the Hospital. She was being treated in the Hospital. At 6:00 A.M. on 11.05.2009, she ultimately died. FIR was registered, police started investigation, postmortem was conducted, statements of witnesses were recorded and final report under Section 173 of Code of Criminal Procedure, 1973 was filed before the trial Court. The trial Court convicted the appellant-Amiruddin. Hence, this appeal.

ARGUMENTS

3. In support of the appeal, learned counsel for the appellant vehemently argued that the prosecution has failed in proving its case according to law. She submitted that, at any rate, the appellant was entitled to the benefit of doubt since there was no evidence with the prosecution to record the conviction. She submitted that the prosecution relied on the solitary testimony of PW2-Sachin Khera, the alleged journalist who is said to have recorded the dying-declaration of Saiyna, in a C.D., which was produced before the trial Court. Referring to Section 65-B of the Evidence Act, 1872 (for short ‘Evidence Act’), she submitted that not a single condition under Sub-Section-2 of Section 65-B of Evidence Act was at all complied with, and therefore, the exhibition of the document or placing of C.D. on record of the trial Court, does not yield any legal evidence according to law. Therefore, the trial Court could not have looked into the C.D. or exhibited it at all. She prayed for ignoring the said C.D. for consideration. Learned counsel then argued that only testimony that remains on record, is of PW2-Sachin Khera and PW6-Landlady Meena, who eventually turned hostile and did not support the prosecution. She was witness for the fact of appellant running away from the house. Learned counsel then contended that the evidence of PW2-Sachin Khera is required to be rejected as he claimed to have recorded dying-declaration of Saiyna by way of recording in the C.D. and his substantive evidence, in the trial Court also, does not help the p