The High Court of Delhi dismissed an appeal against conviction and life sentence for murder. The court upheld the reliability of unsealed CCTV footage captured on a hard disk, ruling it as primary evidence under Section 62 of the Evidence Act without complying with Section 65B.
Appeal dismissed; conviction and sentence of life imprisonment upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
+ CRIMINAL APPEAL NO. 108/2013
Reserved on: 19th October, 2015 % Date of Decision: 12th February, 2016
KISHAN TRIPATHI @ KISHAN PAINTER ....Appellant Through Mr. Arun Sharma, Advocate.
Versus
THE STATE …Respondent Through Mr. Varun Goswami, APP.
CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.K. GAUBA
SANJIV KHANNA, J.
Crl.A. No. 108/2013
Page 1 of 20
Crl.A. No. 108/2013
Page 2 of 20
where ASI Sakhi Ram (PW-20) and Rakesh Bhargava (PW-4) were already present. He affirms having noticed blood on the stairs leading towards the basement and on the first floor. In the basement, dead body of a male with papers and an air compressor machine on top, was lying. PW-7 has deposed that the locker (tijori) had been broken. Head Constable Ram Chander (PW-16) testified that on DD No. 4A being marked, he along with ASI Sakhi Ram (PW-20) had reached C-59, Okhla Industrial Area-I and had met Rakesh Bhargava (PW-4). He had seen blood in substantial quantity on the stairs going from ground floor towards the basement giving an impression that the body had been dragged. Loose papers were found lying near the narrow passage in the basement. The deceased was a security guard named Sachidanand Jha and a compressor machine had been put on him. A small chest (tijori) in the premises was found to be damaged. The FIR was registered. Inspector B.S. Rana (PW-18)‟s testimony is almost identical on aspects like, noticing a dead body in a pool of blood in the basement with a compressor on the top. They had called the crime team with the photographer, who then took pictures from different angles. PW-18 had collected blood samples from the floor in the basement in the form of blood stained earth, and earth control samples etc, which were seized vide memo Exhibit PW-17/B. They had lifted black colour blood stained shoes from the basement, which were seized vide seizure memo Exhibit PW-7/D and the compressor, which had been kept on the dead body was taken into custody vide seizure memo Exhibit PW-7/C. One woolen blood stained cap was taken into possession vide seizure memo Exhibit PW-7/E. On the first floor, window pane of the back door of the office had been removed and was kept on the table. A small chest (tijori) had been broken. They took into possession the glass removed from the door vide seizure memo Exhibit PW-7/F and the
Crl.A. No. 108/2013
Page 3 of 20
small chest vide seizure memo Exhibit PW-7/G. ASI Sakhi Ram (PW-20) has in seriatim affirmed the aforesaid facts. The dead body was first shifted to the mortuary and after it was identified by the relatives of the deceased, namely, Manoj Kumar Jha (PW-6) and Krishan Kant Jha (PW-10), PW-20 had got the post-mortem conducted.
“ 1. A stab wound size 2x.4 cm cavity deep was present over right middle aspect of back situated 21 cm below to right shoulder tip, 123 cm above to right heel and 6 cm right ward to midline. Stab would was obliquely placed inner margin downward. Both angle sharp, spindle shape and associated with oozing of blood. On dissection a track is established directed forward, outward and downward passing through wound muscle of back and passing through posterior chest wall at 7 intercostal muscles and pleura and terminate in 3 cm depth of lower lobe of right lung associated with haematoma and haemothorex about 1.5 liter of blood.
Crl.A. No. 108/2013
Page 4 of 20
clavicle, 10 cm downward to right mastoid tip associated with haematoma. On dissection track is directed downward and inward and associated with haematoma.
The cause of death, it was opined, was a result of haemorregic shock consequent upon multiple ante-mortem injuries. Injury No. 1 caused by a pointed sharp edged weapon was individually sufficient to cause death in the ordinary course of nature. Injury Nos. 5, 6 and 8 were caused by a sharp weapon, whereas injury Nos. 2, 3, 4, 7, 9, 10, 11 and 12 were caused by a blunt force object impact. These injuries were also collectively sufficient to cause death in the ordinary course of nature. PW-1 had subsequently on 25th June, 2009 examined a knife and had opined that injury Nos. 1, 5, 6 and 8 mentioned in the post-mortem report Exhibit PW-1/A were possibly through this exhibit. He identified the knife without handle as Exhibit P-1 and his second opinion in respect of the knife was marked Exhibit PW1/B.
Crl.A. No. 108/2013
Page 5 of 20
2009, he was posted with the crime team as a photographer and had visited C-59, Okhla Industrial Area-I where he had seen a dead body of a male smeared with blood. Blood could be seen lying there and on the stairs. He had taken 47 photographs, which were marked Exhibit PW-11/A-1 to A-47 and negatives Exhibit PW-11/B-1 to B- 32. The other 15 negatives could not be produced as they were not traceable.
Crl.A. No. 108/2013
Page 6 of 20
A.M. and 6 A.M., Kishan Tripathi had checked and ascertained whether Sachidanand Jha was still alive or breathing. The appellant had changed his wearing apparel in the factory and had put on clothes of the workers, which were kept in the factory. The appellant left the factory at about 6-6.04 A.M. after opening the main gate. The appellant had taken out the keys of the main gate from the pocket of Sachidanand Jha.
Crl.A. No. 108/2013
Page 7 of 20
inflicting injuries with some instrument. Inspector B.S. Rana (PW18) similarly proves this version narrated by HC Rajpal Singh (PW7) and Rakesh Bhargava (PW-4) that the CCTV cameras were installed in the factory, an operator was called and the CCTV recording was played, whereupon Rakesh Bhargava (PW-4) had identified the perpetrator as Kishan Tripathi. This person was visible and could be seen hitting Sachidanand Jha. PW-18 had then removed the hard disc from the computer system with the help of Ram Milan (PW-15) and sealed the same and they took the hard disc into possession vide seizure memo Exhibit PW7/H.
Crl.A. No. 108/2013
Page 8 of 20
she knew the appellant, who was a painter and used to do white washing and painting work.
“ 24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments
Crl.A. No. 108/2013
Page 9 of 20
and by feeding them into a computer, CDs were made there from which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.”
The aforesaid paragraph elucidates difference between primary and secondary evidence. When primary or direct evidence in form of original data be it a CD, hard drive or any other electronic record is produced, the same is admissible and taken on record. This takes care of the contention of the appellant that the CCTV footage should be discarded and not read in evidence in the absence of a certificate under Section 65B of the Evidence Act.
Crl.A. No. 108/2013
Page 10 of 20
already been given and programmed. The original hard disc, therefore, could be the primary and the direct evidence. Such primary or direct evidence would enjoy a unique position for anyone who watches the said evidence would be directly viewing the primary evidence. Section 60 of the Evidence Act states that oral evidence must be direct, i.e., with reference to the fact which can be seen, it must be the evidence of the witness, who had seen it, with reference to the fact, which could be heard, it must be evidence of the witness, who had heard it and if it relates to the fact, which could be perceived by any other sense or any other manner, then it must be the evidence of the witness, who says who had perceived it by that sense or by that manner. Read in this light, when we see the CCTV footage, we are in the same position as that of a witness, who had seen the occurrence, though crime had not occurred at that time when the recording was played, but earlier.
Crl.A. No. 108/2013
Page 11 of 20
would be per se and mostly discerningly reliable and compellingly conclusive evidence, unless its authenticity and genuineness is in question.
Crl.A. No. 108/2013
Page 12 of 20
Singh (PW-7), Insp. B.S. Rana (PW-18) and Ram Milan (PW-15) who had operated and played the CCTV footage. We are satisfied that the recorded CCTV footage has not been interpolated or tampered in the light of the original hard drive, which has been played before us. The footage recorded consists of 405 files starting from 2:06 P.M. on 21.02.2009 till 2:14 P.M. on 23.02.2009, with self generated numbers. Time and date are mentioned on the files and the video. These are not one, two or three files, but more than 400 files, created over a span of several hours. This “internal evidence” establishes its genuineness. Hard disk in the present case is not only a physical object, but a document within the meaning of section 3 of the Evidence Act [See Shamsher Singh Verma Vs. State of Haryana , 2015 (12) Scale 597]. The Supreme Court in Mobarik Ali Ahmed Vs. State of Bombay , AIR 1957 SC 857, has held that execution of a document can also be proved by the “internal evidence” contained in the contents of the document. The circumstantial evidence enforces our belief that the original document, i.e. hard drive, is original and authentic.
Entry in the factory at 4:45 PM on 22.02.2009
Crl.A. No. 108/2013
Page 13 of 20
At the basement from 4:20 AM to 4:30 AM in the intervening night of
22/23.2.2009
Crl.A. No. 108/2013
Page 14 of 20
Crl.A. No. 108/2013 Page 15 of 20
Leaving the factory at 6-6:04 AM on 23/02/2009
Crl.A. No. 108/2013
Page 16 of 20
Crl.A. No. 108/2013 Page 17 of 20
pair of blood stained socks (Ex. P-4, collectively) from the bedding lying on the floor, which were seized and taken into possession vide seizure memo Exhibit PW-14/F. A shirt with stripes, which the appellant was wearing at the time of offence and had been washed was also seized along with the cream colour sweater (Ex. P-5, collectively) and taken into possession vide seizure memo Exhibit PW-14/G. The said recoveries of the pant, shirt, socks and shoes was also deposed by and affirmed by SI Girjesh Singh (PW-19).
Crl.A. No. 108/2013
Page 18 of 20
house of Rakesh Bhargava (PW-4) and had demanded money. Rakesh Bhargava (PW-4) had asked him to come to the factory about 4-5 P.M. on Sunday as he would also be reaching there. Appellant had reached the factory as asked, but Rakesh Bhargava did not come. Appellant was not allowed to enter the factory by the guard, even though his goods were lying outside. The guard had asked him to procure/ bring some goods for him and had given him money. Appellant had bought the goods for the guard and had proceeded to Noida where he was doing painting work. Thereafter, the appellant had gone to Jahangirpuri, where he came to know that police was searching for him. He was arrested at 8/9 P.M. at Jahangir Puri. He was then taken to the factory and was made to put his palm on various articles and then brought to the chowki and kept there for the entire night. Next day he was taken to his room at Madanpur Khadar and thereafter sent to jail.
Crl.A. No. 108/2013
Page 19 of 20
was possibly detained in the intervening night between 26th and 27th February, 2009. However, this would not make any difference. Dr. Kamlesh (DW-3), the third defence witness is a Director (Professor) at the Gurunanak Eye Hospital. The appellant was diagnosed with alternate convergent squint and was admitted for treatment on 9th February, 2010. The appellant was using myopic glasses and had aided vision of 6/18 in both eyes. He had undergone surgery on 11th February, 2010 and the squint was fully corrected and the patient was discharged on 12th February, 2010. In his cross-examination, DW-3 clarified that the appellant did not have any problem in seeing at night and was not diagnosed to be suffering from night blindness. These depositions, do not show that the appellant is innocent or the prosecution evidence in the form of CCTV footage is of doubtful integrity and fabricated. The core evidence i.e. CCTV footage nails the appellant, Kishan Tripathi.
FEBRUARY 12, 2016 VKR /ssn
Crl.A. No. 108/2013
Page 20 of 20
3 issues framed by the court
Whether original CCTV footage stored on a hard disk requires Section 65B compliance to be admitted as evidence.
Whether the identity of the appellant was satisfactorily established through CCTV surveillance videos.
Whether the conviction and sentence in the murder case should be upheld on appeal.
Colour shows how this judgement treated each authority
Anwar P.V. (S) versus P.K. BasirExplained¶58
Anwar P.V. (S) versus P.K. Basir, (2014) 10 SCC 473 · Who else cites this
Shamsher Singh Verma Vs. State of HaryanaReferred¶75
Shamsher Singh Verma Vs. State of Haryana, 2015 (12) Scale 597
Mobarik Ali Ahmed Vs. State of BombayRelied on¶75
Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857 · Who else cites this
5 provisions across 3 enactments
KISHAN TRIPATHI @ KISHAN PAINTER
THE STATE
SANJIV KHANNA
R.K. GAUBA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
