Umer Ali v. State of Kerala

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Criminal Law – Evidence Act, 1872 – Section 65B – Admissibility of Electronic Evidence – CCTV Footage – Conviction under IPC Sections 302, 376(A), 201 – Appeal against Conviction – Requirement of Section 65B Certificate for Secondary Electronic Evidence – Failure to Adduce Primary Evidence – Fair Trial – Remand for Retrial.

HELD 

The conviction of the appellant under Sections 302, 376(A), and 201 IPC was set aside due to the inadmissibility of CCTV footage (DVDs) relied upon by the trial court, which lacked a mandatory Section 65B certificate as required under the Indian Evidence Act (Anvar v. Basheer, Arjun Panditrao Khotkar followed). The prosecution’s failure to exhibit the primary evidence (DVR) and reliance on uncertified secondary evidence constituted a miscarriage of justice, prejudicing both the accused and the victim. The court found the trial unfair and ordered a retrial, directing the trial court to adduce electronic evidence lawfully, recall witnesses if necessary, and decide the case based on existing and additional evidence. The court emphasized the judiciary’s duty to uphold truth and ensure a fair trial to maintain public confidence in the justice system. Case remanded for expeditious disposal considering the accused’s ongoing incarceration.

Court: High Court of Kerala

Judges: Hon’ble Mr. Justice Raja Vijayaraghavan V & Hon’ble Mr. Justice P.V. Balakrishnan

Case Number: Crl. Appeal No. 652 of 2023; March 24, 2025

Parties: Umer Ali v. State of Kerala

Citation: 2025 KER 24851 : 2025 (3) KLR 403 : 2025 (2) KLT 505 : 2025 (2) KHC SN 28

Background

Umer Ali was convicted by the Special Court of Sessions, Ernakulam, in SC No. 182/2020 for offenses under Sections 302 (murder), 376(A) (rape causing death), and 201 (causing disappearance of evidence) of the Indian Penal Code (IPC). The prosecution alleged that on November 27, 2019, at 1:08 AM, the accused raped and murdered the deceased, Deepa, at the courtyard of Indraprastha Hotel, Perumbavoor, using a hoe, and damaged a CCTV camera to conceal the crime. The trial court relied heavily on CCTV footage, witness testimonies, and forensic evidence, sentencing him to life imprisonment with fines. The accused appealed, challenging the admissibility of electronic evidence and the sufficiency of proof.

Issues

  1. Whether the death of Deepa was homicidal.
  2. Whether the accused committed the rape and murder.
  3. Whether the CCTV footage (DVDs, including Ext.P25) was admissible without a Section 65B certificate under the Indian Evidence Act.
  4. Whether the prosecution established the chain of circumstantial evidence beyond reasonable doubt.
  5. Whether the trial was fair and whether a retrial was warranted.

Arguments

  • Appellant’s Contentions (Adv. Sai Pooja)
    • The prosecution’s case rested on circumstantial evidence, with no direct eyewitnesses.
    • The CCTV footage (Ext.P25 DVD) lacked a mandatory Section 65B certificate, rendering it inadmissible (citing Anvar v. Basheer and Arjun Panditrao Khotkar).
    • Identification by PW5 (security guard) was unreliable without a Test Identification Parade (Rameshwar Singh and Sasikumar).
    • Forensic reports (Exts.P26, P27) lacked proof of tamper-proof sample handling (Prakash Nishad).
    • The initial DVD used for identification was not produced or marked, undermining the evidence.
    • The accused claimed consensual intercourse with the deceased and denied the murder, alleging he was falsely implicated.
  • Respondent’s Contentions (Public Prosecutor Adv. Neema T.V.)
    • The prosecution proved the contents of Ext.P25, showing the accused committing the crime.
    • The original DVR (MO4) was produced, negating the need for a Section 65B certificate.
    • Multiple witnesses identified the accused in court based on CCTV visuals.
    • Forensic evidence (blood, seminal stains, nail clippings) corroborated the accused’s guilt.
    • The prosecution urged dismissal of the appeal.

Findings

  1. Homicidal Death
    • The court found Deepa’s death to be homicidal, based on PW17’s (doctor) testimony and Ext.P14 (postmortem report), which detailed 32 ante-mortem injuries, with head injuries (Nos. 1–5, 10, 11) being fatal and consistent with the use of MO1 (hoe).
  2. Admissibility of CCTV Footage
    • The prosecution relied on CCTV footage copied onto DVDs, including Ext.P25, as secondary evidence. However, no Section 65B certificate was provided, violating the requirements laid down in Anvar v. Basheer and Arjun Panditrao Khotkar.
    • The original DVR (MO4), containing the primary evidence, was not exhibited during the trial, and the court found no justification for relying on uncertified secondary evidence.
    • The initial DVD used for witness identification was not marked, and Ext.P25 was introduced later due to technical issues, further undermining its reliability.
    • The court held that without Section 65B certification, the DVDs were inadmissible, collapsing the prosecution’s primary evidence.
  3. Other Evidence
    • The court noted inconsistencies in witness testimonies, such as PW5’s identification lacking corroboration via a Test Identification Parade and his exposure to the accused’s photo in newspapers.
    • Forensic evidence (Exts.P26, P27) was not conclusively linked to the accused due to insufficient proof of tamper-proof handling.
    • The absence of independent witnesses to recoveries weakened the prosecution’s case.
  4. Fair Trial and Failure of Justice
    • The court criticized the prosecution and trial court for failing to adduce the primary evidence (DVR) and relying on inadmissible DVDs, resulting in a miscarriage of justice.
    • The trial was deemed unfair, prejudicing both the accused and the victim’s right to justice (Mohd. Hussain @ Julfikar Ali, Maria Margarida Sequeria Fernandes).
    • The court emphasized that truth is the foundation of justice and that the judicial system must ensure its discovery.

Decision

  • The High Court allowed the appeal in part, setting aside the conviction and sentence under Sections 302, 376(A), and 201 IPC.
  • The case was remanded to the trial court for a retrial to adduce electronic evidence (DVR) in compliance with legal requirements, particularly Section 65B.
  • The trial court was directed to:
    • Recall witnesses or summon documents if necessary.
    • Take an additional Section 313 Cr.P.C. statement from the accused.
    • Allow the accused to adduce further evidence.
    • Decide the case based on existing and new evidence, uninfluenced by the High Court’s observations.
  • The court ordered expeditious disposal, considering the accused’s ongoing incarceration.

Ratio Decidendi

  • Secondary electronic evidence, such as DVDs, is inadmissible without a Section 65B certificate, as per Anvar v. Basheer and Arjun Panditrao Khotkar.
  • Primary electronic evidence (e.g., DVR) does not require Section 65B certification if properly adduced.
  • A retrial is warranted in exceptional cases to avert a failure of justice, balancing the accused’s right to a fair trial with the victim’s and society’s interest in justice.
  • Courts must prioritize truth and ensure procedural fairness to maintain the credibility of the judicial system.

Obiter Dicta

  • The court expressed dismay at the prosecution’s and trial court’s failure to utilize available primary evidence, highlighting systemic lapses.
  • It underscored the judiciary’s duty to uphold truth as the cornerstone of justice, citing Maria Margarida Sequeria Fernandes.

Disposition

Appeal allowed in part; conviction and sentence set aside; case remanded for retrial with directions for expeditious disposal.

Cited

  1. Sasikumar v. State, AIR 2024 SC 5507
  2. Prakash Nishad v. State of Maharashtra, AIR 2023 SC 2938
  3. Jimmy George v. Sreekumar, 2023 (6) KLT 603
  4. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 4 KHC 101
  5. Anvar P.V. v. P.K. Basheer, 2014 KHC 4602
  6. Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT), 2012 KHC 4473
  7. Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, 2012 KHC 4181
  8. Satyajit Banerjee v. State of West Bengal, (2005) 1 SCC 115
  9. Rameshwar Singh v. State of J & K, 1971 KHC 604
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