The Kerala High Court has held that a government expert’s report under Section 293 of the Criminal Procedure Code (CrPC) cannot be a substitute for a certificate under Section 65B of the Indian Evidence Act. The ruling clarifies that while an expert report can analyze electronic evidence, it does not automatically make such records admissible in court.
Background of the Case
The case arose when the Trial Court convicted the appellant, Umer Ali, based on CCTV footage extracted from a Digital Video Recorder (DVR). The original DVR was not produced; instead, the forensic lab created a DVD containing extracted contents. The conviction was challenged on the grounds that the DVD lacked a Section 65B certification.
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A Division Bench comprising Justice Raja Vijayaraghavan V and Justice P.V. Balakrishnan examined whether an expert report under Section 293 CrPC could replace the certification required under Section 65B of the Evidence Act.
The Court made a crucial distinction between a forensic expert’s report and a Section 65B certificate:
"An expert’s report cannot be considered a formal substitute for a Section 65B(4) certificate in the eyes of law since they serve two different purposes. A Section 65B certificate is a statutory requirement to make secondary electronic records admissible, whereas a Section 293 CrPC report merely presents forensic analysis results."
The Court cited Supreme Court judgments in Anwar v. Basheer (2014) and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), which established that secondary electronic evidence without a valid Section 65B certification is inadmissible.
Arguments Presented
- Appellant’s Counsel: The prosecution relied on CCTV footage that was not certified under Section 65B. Only DVDs were presented, making them inadmissible secondary evidence.
- Prosecution’s Argument: A Section 65B certificate is unnecessary when the original hard disk is produced in court. The identity of the accused was evident from the CCTV visuals.
After reviewing the evidence, the Court concluded that:
- The prosecution failed to provide a Section 65B certificate for the DVD.
- The original DVR, which was available, was not produced before the Trial Court.
- The forensic expert’s report alone could not validate the electronic evidence.
"There is no exemption in law for any authority, including forensic labs, from complying with Section 65B certification when making copies from the original electronic record."
Since the conviction was based on inadmissible electronic evidence, the Court ruled that a fair trial had not been conducted, leading to prejudice against both the victim and the accused.
The Court partially allowed the appeal, setting aside the conviction and sentence. It remanded the case back to the Trial Court for proper evidence submission in compliance with legal standards.
"The original electronic record, which was primary evidence and available before the court, was omitted, and a secondary copy was used without proper certification. This led to a failure of justice."
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The Court directed the Trial Court to:
- Recall witnesses if necessary.
- Summon missing documents.
- Ensure Section 65B compliance for electronic evidence.
- Expedite the retrial considering the appellant’s incarceration.
Case Title: Umer Ali v State of Kerala
Case No: CRL.A NO. 652 OF 2023
