Electronic Evidence | “Expert’s Report Is Not a Formal Substitute for Section 65B Certificate”: Kerala High Court Sets Aside Conviction, Citing Failure to Adduce Primary Record
Isabella Mariam
The High Court of Kerala set aside the conviction and sentence awarded by the Special Court of Sessions, Ernakulam, in a case involving charges under Sections 302, 376(A), and 201 of the Indian Penal Code. The Division Bench comprising Justice Raja Vijayaraghavan V and Justice P.V. Balakrishnan remanded the matter for retrial, specifically for the purpose of properly adducing electronic records in accordance with Section 65B of the Indian Evidence Act. The Court observed that “both the prosecution and the trial court have appallingly failed in their duties to meet the demand of justice” and recorded that “the original electronic record, which is the primary evidence and which was very much available before the court, has been omitted to be adduced as evidence.”
The trial had resulted in the accused being convicted and sentenced to imprisonment for life under Sections 302 and 376(A) IPC, and to five years of rigorous imprisonment under Section 201 IPC. A fine of Rs. 1,10,000/- in total was also imposed. However, the High Court, after evaluating the procedural lapses and evidentiary failures, set aside the entire judgment and directed that the case be remanded for retrial, stating that a fair trial had not occurred.
The appellant was convicted by the Special Court of Sessions, Ernakulam, for the rape and murder of a woman on the intervening night of 26 and 27 November 2019. The prosecution alleged that the accused, described as a vagabond, dragged the deceased to the courtyard of a hotel, sexually assaulted her, and caused multiple fatal injuries using a hoe. The injuries led to her death. The accused was also alleged to have tampered with a CCTV camera that captured the incident.
The prosecution’s case rested entirely on circumstantial evidence, including eyewitness accounts, forensic reports, and footage allegedly extracted from a CCTV system installed at the location of the incident. A total of 28 witnesses were examined, and multiple documentary and material exhibits were marked, including Ext.P25, a DVD that contained a mirror image of the footage from the CCTV DVR.
The defence, represented by Advocate Sai Pooja, raised several challenges. It was submitted that the prosecution had failed to establish the chain of custody and admissibility of the electronic records. It was argued that Ext.P25, which formed the core evidentiary basis of the prosecution’s case, lacked a certificate under Section 65B(4) of the Indian Evidence Act and therefore could not be admitted. The counsel relied on precedents including Anvar v. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, asserting that the absence of Section 65B certification rendered the DVD inadmissible.
The defence further contended that there was no Test Identification Parade conducted for the key witness PW5, whose dock identification of the accused was not corroborated by procedural safeguards. Concerns were also raised regarding the absence of independent witnesses during recovery proceedings and doubts about the tamper-proof condition of biological samples. Additionally, the reliability of scientific reports (Exts.P26 and P27) was challenged due to an alleged lack of methodological transparency.
The State, represented by Public Prosecutor Neema T.V., defended the trial court’s findings and maintained that the visual footage supported the prosecution case. It was submitted that the original hard disk was produced in court and that since the hard disk itself was available, there was no requirement for a 65B certificate for Ext.P25. The prosecutor also argued that multiple witnesses had identified the accused in the courtroom after viewing the CCTV footage, and that forensic evidence substantiated the identity and culpability of the accused.
The High Court meticulously examined the admissibility of the electronic records. It observed that “the DVDs, in which the electronic record (video clipping) was extracted from the DVR (MO4) and which have been played in the court and relied on, being secondary evidence of the electronic record, requires certification under Section 65B in order to admit the document in evidence.”
Citing Anvar v. Basheer and Arjun Panditrao Khotkar, the Court stated that Section 65B is a mandatory procedural safeguard intended to ensure the authenticity and integrity of electronic evidence. It recorded: “There is no exemption granted in law to any authority including the Forensic Science Laboratories from not complying with the requirement of certification under Section 65B, while making copies from the original electronic record.”
The Bench further explained that a forensic report issued under Section 293 Cr.P.C. is not a substitute for a 65B certificate. It stated: “A Section 293 Cr.P.C. report being admissible, simply means that the report can be read as evidence of what it states and it does not automatically validate any attached electronic media.”
The Court took note of the fact that the original DVR containing the electronic footage was not marked as an exhibit, even though it was produced. The DVD that was initially used in the trial did not function during the examination of the forensic expert, resulting in the production of a new DVD that was marked as Ext.P25. However, neither DVD was accompanied by a valid certificate under Section 65B.
The judgment observed: “We are at a loss to understand why the prosecution and the trial court had forgone the primary evidence available and have made attempts to rely upon secondary evidence and that too, without proper certification.”
The Court recorded that this omission caused “prejudice to both the victim and the accused” and led to a failure of justice. Citing Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT), it held that retrial should be ordered only in exceptional and rare cases when such a course becomes indispensable to avert failure of justice. The Court reiterated that “the guiding factor must always be demand of justice.”
The High Court set aside the conviction and sentence imposed on the appellant by the Sessions Court under Sections 302, 376(A), and 201 IPC. It remanded the matter for retrial specifically for the purpose of admitting electronic records in accordance with law.
The Court directed: “SC No.182/2020 is remanded back to the trial court for the purpose of bringing in evidence the electronic records available in this case, as per law.”
It was further directed that the trial court “shall, if required, recall any witnesses, summon any documents, take additional Section 313 statement and grant an opportunity to the accused to adduce further evidence.” The trial court was instructed to decide the case “on the basis of the evidence already on record and the additional evidence which would be recorded hereinafter.”
Considering that the appellant remains in custody, the Sessions Judge was directed to dispose of the matter expeditiously.
Advocates Representing the Parties
For the Appellant: P. Mohamed Sabah, Libin Stanley, Sai Pooja, Sadik Ismayil, R. Gayathri, M. Mahin Hamza, Alwin Joseph
For the Respondent: Neema T.V., Public Prosecutor
Case Title: Umer Ali v. State of Kerala
Neutral Citation: 2025:KER:24851
Case Number: Crl.Appeal No.652 of 2023
Bench: Justice Raja Vijayaraghavan V and Justice P.V. Balakrishnan
[Read/Download order]
