An expert witness examined for the technical certification of electronic evidence under Section 65B and 45A of the Indian Evidence Act cannot identify persons in a recording if they have no personal knowledge of those individuals.

ORDER

1. The present revision application under section 438 read with section 442 of the Bhartiya Nagarik Surkasha Sanhita, 2023 (herein after referred to as the ‘BNSS Act’), has been filed against the order dated 26.07.2024 passed by the Additional Sessions Judge, Mehsana vide Exh.168 application in Special ACB Case No.9 of 2017 and 2 of 2018.

2. The trial was conducted in connection with the FIR being C.R. No.I-118 of 2017 registered at Mehsana Taluka Police Station dated 13.06.2017 and the charge-sheet essentially was filed under section 302 of IPC and ultimately being a case of custodial death, the matter was proceeded and three accused as police officials came to be chargesheeted, and four others were named in column no.2 of the charge-sheet.

3. Learned advocate Mr. Pratik B.Barot submitted that the prosecution examined FSL officer as P.W.11 vide Exh.146 and by playing the DVD in the Court room prepared on the strength of CCTV footage, had recorded the evidence of the witness.

3.1 Learned advocate Mr. Barot stated that the witness Dharmendra Govindlal Shah was examined as P.W.11, who was Retired Scientific Officer of D.F.S. Gandhinagar, for the purpose of electronic evidence which was of the CCTV footage recording and the back up was taken by Western Digital Company, and the USB Hard-disk with Serial No.WXQ1A3724CY3 was taken in a plastic bag, which was thereafter sealed and handed over to the Investigating Officer Advocate Mr. Barot stated that the said CCTV footage recording was sent for examination to D.F.S., Gandhinagar and the witness had brought the report along with the certificate under section 65B(4)(c) of the Indian Evidence Act.

3.2 Learned advocate Mr. Barot submitted that the report was produced on record by the witness and the certificate in the form at Exh.147 and 148; that procedure adopted by the Public Prosecutor was in accordance with the law and all the muddamal article in the form of electronic evidence was produced on record with the opinion of the officer concerned, was recorded. Advocate Mr. Barot submitted that the evidence, which was recorded by the Public Prosecutor from para-19 to 27 cannot be admitted in evidence, as the expert was asked to identify the persons in the video which was run in the Court.

3.3 Learned advocate Mr. Barot stated that the DVR was already put in evidence at Exh.165, and that DVR had been brought by him and the Annexure-B,C, D and E were referred, whereupon the Case No.DFS/EE/2017/CF/342 was written and both the DVRs were produced in evidence at Exh.165 and 166. Advocate Mr. Barot submitted that D.V.Ds were already exhibited, there was no necessity for the prosecution to open the DVD, as those DVDs were abstracts from DVR, the expert witness had referred to two folders, and in one folder, there were about 33 videos.

3.4 Learned advocate Mr. Barot submitted that thus far the evidence recorded would be admissible, but asking the expert to identify the person in the DVD would be against law, as that expert would have personally not known any of the persons in videos of the DVDs.

4. Learned APP Mr. Niraj Sharma stated that the expert witnesses are to be examined as an expert in view of the provision of section 45A of the Indian Evidence Act, 1872, and thus, stated that the report, DVR and DVD would go in evidence along with the report in accordance to section 65B(4). Mr. Sharma stated that it becomes relevant document in accordance to the