Mohammed Nissam A.A. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 8TH DAY OF DECEMBER 2015/17TH AGRAHAYANA, 1937 Crl.MC.No. 7647 of 2015 () --------------------------- CRIME NO. 173/2015 OF PERAMANGALAM POLICE STATION , THRISSUR ORDER IN CRL.M.P.4641/2015 IN SC.300/2015 OF I ADDITIONAL SESSIONS COURT, THRISSUR PETITIONER(S)/PETITIONER/ACCUSED: --------------------------------------------------------- MOHAMMED NISSAM A.A., AGED 39 YEARS S/O. ABDUL KHADER, ADAKKAPARAMBIL HOUSE MUTTICHOOR DESOM, PADIYAM VILLAGE, THRISSUR BY ADVS.SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.GEORGE BRISTON SRI.ABHISHEK KURIAN ## RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------------------------------------------------------------- THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM R BY SRI.ASAF ALI, DIRECTOR GENERAL OF PROSECUTIONS THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-12-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 7647 of 2015 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- ANNEXURE A1 TRUE COPY OF THE LIST OF DOCUMENTS AND ARTICLES PRODUCED AND SUPPLIED TO THE ACCUSED/PETITIONER ANNEXURE A2 TRUE COPY OF THE COMPLAINT SUBMITTED BY 2ND RESPONDENT BEFORE THE 1ST ADDITIONAL SESSIONS COURT, THRISSUR ANNEXURE A3 TRUE COPY OF THE ORDER DATED 3-12-2015 IN CRL M.P NO 4641/2015 IN SC NO 300/2015 OF THE 1ST ADDL. SESSIONS COURT, THRISSUR RESPONDENT(S)' EXHIBITS : NIL --------------------------------------- _// True Copy //_ _PA to Judge_ ## **[CR]** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Crl.M.C. No.7647 of 2015 B ````````````````````````````````````````````````````````````` _Dated this the 8[th] day of December, 2015_ ## **O R D E R** ~ ~ ~ ~ ~ ~ During the preparation of scene mahazar in the case, the investigating officer had contemporaneously recorded the scene as such and the activities, through video graph as well as photograph. The same were recorded in DVDs. Even though such an exercise was done by the investigating officer, the prosecution has not relied on the said DVDs as, according to the prosecution, there was no certification as mandated under Section 65B(4) of the Indian Evidence Act, 1872 making it admissible in evidence as an electronic record. 2. During the cross-examination of the investigating Crl.M.C.7647/2015 : 2 : officer, the defence wanted to press into service those two DVDs, thereby those two DVDs were marked as documents before the court below through the cross-examination of the investigating officer on the side of the accused, as D30 and D31. The evidence is over. The case stood posted for the examination of the accused under Section 313 Cr.P.C. 3. During the course of the cross-examination of the investigating officer, Crl.M.P. No.4641/2015 was filed by the accused before the court below seeking that those DVDs had to be played before the court below in open court for enabling him to confront PW22, the investigating officer, on the basis of the contents of those DVDs. The said request was denied by the court below mainly on two grounds:- (1) It is not an electronic record admissible in evidence as it does not contain proper certification within the meaning of Section 65B(4) of the Indian Evidence Act, and (2) The same not being a previous statement of the witness, the defence cannot encash it for the purpose of contradicting Crl.M.C.7647/2015 : 3 : the witness. 4. Heard learned Senior Counsel for the petitioner Sri.K.Gopalakrishna Kurup and learned Director General of Prosecutions Sri.Asaf Ali. 5. The learned Senior Counsel for the petitioner has invited the attention of this Court to the decision in _**Ramaiah alias Rama v. State of Karnataka** [(2014) 9 SCC 365]_ , wherein it was held in paragraph 14 as follows:- _“To falsify this position taken by the prosecution through these witnesses, the learned counsel for the appellant had taken us to the evidence of PW8 who had drawn mahazar near the well. This mahazar coupled with the statement of PW8 is a very significant piece of evidence which has considerable effect in denting the creditworthiness of the testimony of these witnesses. As per PW8 himself, when he had reached the spot, it was the mother of the deceased who pointed out the place where the dead body was lying. This_ Crl.M.C.7647/2015 : 4 : _assertion amply demonstrates that the mother of the deceased had known where the body was kept and she along with PW1 and PW2 had reached the place of occurrence before the dead body was cremated. Relying upon this evidence, the trial court has disbelieved the story of the prosecution that Laxmi was cremated even before these persons had reached the village of the appellant. Strangely, the High Court has discarded the mahazar drawn by PW8 by giving a specious reason viz. it was not an exhibited document before the court, little realising that this was the document produced by the prosecution itself and even without formal proof thereto by the prosecution, it was always open for the defence to seek reliance on such an evidence to falsify the prosecution version. Moreover, PW8 has specifically referred to this document in his evidence. It is also a matter of record that a specific suggestion was made to PW3 (mother of the deceased) in the cross-examination to the effect that it_ Crl.M.C.7647/2015 : 5 : _is she who had pointed out the place of the dead body lying near the well to the police personnel. The version of PW1 to PW3 that they reached the village of the appellant after Laxmi had already been cremated, does not inspire confidence and appears to be mendacious.”_ It seems that in the decision in _**Ramaiah** (supra)_ , it was a prior statement on which the defence wanted to rely on. 6. The learned Senior Counsel for the petitioner has argued that being a document which is included in the definition of 'evidence' in the Indian Evidence Act, the defence should not be denied an opportunity to confront PW22 with the aid of the said electronic record. As the material is not before this Court at present, this Court cannot say whether D30 and D31 are evidence admissible as an electronic record within the meaning of Section 65B of the Indian Evidence Act. Even assuming that it is an electronic record, and in case there is due certification as Crl.M.C.7647/2015 : 6 : contemplated under Section 65B(4) of the Indian Evidence Act, the question to be considered is whether such a document can be made use of under Section 145 of the Indian Evidence Act to cross-examine PW22 on the basis of its contents or whether the credit of PW22 can be impeached under Section 155(3) of the Indian Evidence Act? 7. The learned Director General of Prosecutions has pointed out that even if it is considered as a document, it cannot assume the status of previous statement and, therefore, as provisions in the Indian Evidence Act stand now, the accused is not entitled to make use of those documents in any manner. As per Section 145 of the Indian Evidence Act, a witness may be cross-examined as to 'previous statements' made by him in writing. That means, as per Section 145 of the Indian Evidence Act, only a previous statement in writing of such a witness can be made use of for contradicting such a witness. Crl.M.C.7647/2015 : 7 : 8. The next provision is with regard to Section 155 (3) of the Indian Evidence Act, which says that the credit of a witness may be impeached by the adverse party or with the consent of the Court by the party who calls him, by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. There also, only in case of a previous statement, the provision under Section 155(3) of the Indian Evidence Act can be pressed into service. 9. Matters being so, the said documents marked as D30 and D31 in evidence, even if those documents are admissible under Section 65B(4) of the Indian Evidence Act as an electronic record, the same cannot be made use of as a previous statement within the meaning of Section 145 as well as Section 155(3) of the Indian Evidence Act. Admittedly, those DVDs contain the matters recorded by the investigating officer or some other matters available at the scene of occurrence during the preparation of the scene mahazar. A mahazar cannot be treated as a previous Crl.M.C.7647/2015 : 8 : statement at all. What was seen by the person, who prepared the mahazar, are recorded in the mahazar. It is only a document. 10. Only when the versions by the person, who has prepared it, are recorded in writing in the mahazar, it can be treated as a previous statement. In such case, if the document contains the previous statement of the person, who prepared the scene mahazar, the defence may be able to make use of it under Section 145 of the Indian Evidence Act to contradict the witness or under Section 155(3) of the Indian Evidence Act to impeach the credit of the witness. When it is only a scene mahazar and when those documents were recorded as things, which were available at the scene at the time of the preparation of the scene mahazar, the present request of the accused to make use of it under Section 145 or Section 155(3) of the Indian Evidence Act is not legally sustainable. 11. It is made clear that this Court has not expressed Crl.M.C.7647/2015 : 9 : anything with regard to the admissibility or otherwise of the contents of D30 and D31. If it is an electronic record duly certified under Section 65B(4) of the Indian Evidence Act, the contents of those documents can be relied on at the appropriate stage by the court below. It is for the court below to decide the admissibility or otherwise of the contents of the said documents. 12. I do not find any illegality, irregularity or jurisdictional error in the impugned order passed by the court below. Matters being so, this Crl.M.C. is devoid of merits and is only to be dismissed, and I do so. In the result, this Crl.M.C. is dismissed. The Registry shall communicate a copy of this order to the trial court, expeditiously. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/08/12 _// True Copy //_ _PA to Judge_