State of U.P v. Ahsan and another) whereby the

stated that the first informant after threatening him used to commit sodomy on him and used to threaten him that if he discloses it to anyone he would implicate him falsely in a case. He did not give his Rs. 20,000/- due to him of work and even he used to visit him in jail and used to say that he has committed a wrong and would get him released soon. He states that he has been falsely implicated in the matter and is innocent.

16. The accused Naushad further states that he had given Rs. 3,000/- to the informant. He is the cousin brother of accused Ahsan. As being his relative, he has been falsely implicated in the present case and is innocent.

17. No defence witness was produced by the accused persons but the accused in their defence filed list of documents numbered as 45-Ka enclosing copies of 9 applications of the informant given to Deputy Jailor, Devband for permission to meet him.

18. The trial court after considering the evidence and material on record came to the conclusion that the links in the chain of circumstances are well connected and the prosecution has established its case beyond reasonable doubt and thus convicted the accused-appellants as above.

19. P.W.1 Nadeem is the first informant and father of the deceased. He states that he knows the accused. Accused Ahsan works with him in making crackers. The accused Naushad used to visit Ahsan. His son aged about 5 years wearing white kurta and pajama and yellow sleeper went missing from the house on 10.8.2017 at about 11.15 a.m. He searched his son a lot but could not trace him and then on 10.8.2017 he got a missing report typed and signed it and gave it at the police station. He proves the same as Exb. Ka-1 to the records. He further states that after lodging of (6) the missing report on 10.8.2017 in the evening when he came back while searching his son then Gulsher, S/o Shamim and Sharique, S/o Mohd. Khalid who are of his locality told that they saw his son going with Ahsan, his employee and Naushad. He further states that they went to the house of Dr. Saeed Anwar where C.C.T.V was installed and checked it and found that accused Ahsan had caught-hold the hands of his son and was going with him. He then gave a second application at the police station on 10.8.2017 which is proved by him as Exb. Ka-2. He further states that on 11.8.2017 the accused Ahsan and Naushad were arrested. Both the accused were taken to the sugarcane field of Yaqoob at about

4.30 a.m. from where they got the dead-body of his son recovered. His son Zaid was drowned by both the accused in the Sugarcane field which was filled with water. He can file the C.C.T.V. footage which at the present moment is not with him. He further states that his son was kidnapped. A photograph of the kidnappers can be seen in the C.C.T.V. footage in the camera of Dr. Saeed Anwar. He files the photograph and the C.C.T.V. footage of his son before kidnapping which is marked as material Exb.1 and two photograph of later on when the accused had caught his hand and were taking him have also been filed, the same are marked as material Exb.2 and 3.

20. In his cross-examination he states that the photograph have been prepared by him from the C.C.T.V. footage of Dr. Anwar. He knows Dr. Saeed Anwar since he is of the same locality. Material Exb.1 is the photograph of his son prior to the incident. The said photograph was got made by him recently. The accused Ahsan is working with him since the last 3 years. The accused Naushad is the relative of Ahsan. His son used to go Madarsa for studies which is behind his house. He used to go daily and come back. He used to go for studies at 7 a.m. and the Madarsa used to close at 11 a.m. On the day of incident he had gone to village (7) Mahikota and he did not see the incident. He did not go to call Ahsan at 9 a.m. to his house. He states that it is incorrect to state that he went to call accused Ahsan at 9 a.m. to his house and on being tutored he is denying it. He searched his son along with other people.

21. Gulsher and Sharique are the witnesses of the incident. Both the said witnesses did not go with him for search. Witness Sharique is his cousin brother. Gulsher is not his relative and lives in a different locality. After his son went missing, there was lot of news about it in the nearby places. He had also got an announcement done about the same. He did not go to the house of Ahsan in the evening but after the incident Ahsan himself came to him and for about two hours joined in the search and then absconded. The missing report was written outside the police station. He then states that it was written in the locality. When he was writing the missing report, many people had gathered there. Witness Gulsher and Sharique were not present at that time. When he came back from the police station after lodging the missing report then he met them. He denies the suggestion that they were with him at the police station. He states that he does not know from where the accused had come and on which day. The accused were arrested in the night and brought to the police station. He had also gone to the police station. He does not know when the inquest on the body of his son was done. He had gone to hospital where the dead-body was kept. The house of Gulsher is at a distance from his house but the localities are nearby. He knows Naushad as he used to come to Ahsan. Ahsan did not take his son to stroll. He never gave anything to his son. He denies the suggestion that Ahsan previously used to take his son for walking and used to love him a lot. He states that it is incorrect that he is giving this statement after being tutored. His statement was recorded by the Investigating Officer after lodging of the missing report on 10.8.2017 after which his statement was (8) not recorded. He visited the accused in jail many times. He denies the suggestion that the accused did not kidnap his son and did not murder him and that the accused did not take his son. He further denies that material Exb. 2, the photograph is also of prior to the incident. He states that he did not show the place where the C.C.T.V. was installed to the Investigating Officer. He further denies that there is no C.C.T.V. camera installed. He further denies that accused Ahsan and Naushad had money due on him and in order to misappropriate the same, he has got them falsely implicated. He further denies the suggestion that he used to commit sodomy on Ahsan against his wishes after threatening him and further denies that he never threatened him that if he tells it to anyone, he would send him in jail by implicating him in a false case. He denies that due to the same he went to meet Ahsan in the jail. He further denies that he had told Ahsan that he would get him released soon. He further denies that he has stated to the accused that he has got them falsely implicated. He further denies that he is giving a false statement on the pressure of the police.

22. P.W.2 Gulsher is a rickshaw puller and is a witness of taking away the deceased by the accused persons. He states that accused Ahsan and Naushad used to work at the place of the informant Nadeem. On

10.8.2017 at about 11-11.30 a.m. when he was waiting for passengers and roaming around, he saw both the accused taking Zaid, the child of the informant. The accused Ahsan was holding the fingers of the child. He continued transporting the passengers from one place to other and then reached his house at about 8 p.m. In the morning when he went with his rickshaw then he came to know that Zaid is missing. He had told the fact that Zaid was taken away by Ahsan and Naushad and he had seen them doing so at the police station. He had come to know that the dead- body of Zaid was recovered from the field. (9)

23. In his cross-examination he states that his house is situated at a distance of 1-1.1/2 km. from the house of the informant. He used to visit the house of Nadeem as he used to transport material on his rickshaw and thus he knew him very well. He does not know as to how many children Nadeem has. He does not know that Zaid (deceased) goes to school for study or not. The accused Ahsan mostly lives in the house of the informant and used to take Zaid for roaming. Earlier he had also seen him, taking Zaid for roaming number of times. The Investigating Officer had recorded his statement on the next day in the morning. He then states that his statement was recorded after about 20 days at the police station after which his statement was never again recorded. From the day of incident to the next day he had gone to the police station on his own. He had told the Investigating Officer that he had gone to the police station on the next day of incident but if the same is not written in his statement, he cannot tell the reason about it. On the next day he came to know about Zaid missing from persons of the locality. He does not know about broadcast from the mosque of the locality regarding Zaid going missing. He denies the suggestion that he did not see the accused taking Zaid on the day of incident at about 11.30 a.m. He further denies that he did not go to the police station and did not tell anything to the Investigating Officer. He further denies that as he is a friend of the informant, thus on his saying he is giving a false statement.

24. P.W.3 Waseem is the witness of recovery of the dead-body. He states that on 11.8.2017 at about 4-4.30 a.m., he heard that the dead-body of Zaid is lying in the Sugarcane field of Yaqoob. When he reached there, he found the dead-body lying on the medh of the field. It was about 15- 20 steps inside the field. The accused Ahsan and Naushad had got it recovered in their presence. The police then took out the dead-body and took it in its possession and prepared recovery memo on which he also (10) signed. He identifies his signature on it. The same is marked as Exb.Ka-3 to the records.

25. In his cross-examination he states that the informant of the present matter lives in a different locality than him. His locality is situated around 300-400 mtr. away from the police station. The place from where the dead-body was recovered is situated at about half kilometer from his house. In between his house and the police station on both the sides of the road, there is a lot of population. When he reached the said place apart from the police, there were around 10-12 other people present. He was present there for about 30 minutes and the papers were prepared there. He states that the dead-body of Zaid was sealed at the said place and sent for postmortem. He had signed at only one place after which he had come back to the house of the deceased. He had reached the said house at about 6 a.m. and remained there till 9-9.30 a.m. The father of the deceased and his family members were in the house. He was present at the house of the deceased at about 4.30 a.m. and there only he had heard that the dead-body of Zaid has been recovered and then 10-12 people proceeded for the said place. In the said night he had stayed at the house of the informant. His statement was recorded by the Investigating Officer in the evening at the police station. He had told the Investigating Officer that the accused Ahsan and Naushad had got the dead-body recovered and then after taking out the dead-body, a memo was prepared in which he had signed but if the same is not in the statement, he cannot tell the reason. He states that it is incorrect to say that he did not tell the Investigating Officer about it and now he is telling it to give the case a different colour. He states that when he had signed on Exb. Ka-3, except for his signature, there was no other signature on it. He states that it is incorrect that he had signed on a blank paper at the police station. He states that it is incorrect that the dead-body was not recovered in his (11) presence from the said place and no paper work was done regarding it. He further states that it is incorrect to state that he did not go to the place of recovery on the said date and time. He further states that it is incorrect that he is giving the said statement on being tutored as the informant is his friend and is giving false statement.

26. P.W.4 Dr. Virendra Bhatt conducted the postmortem of the deceased on 11.8.2017 at about 11 a.m. He proves the said postmortem which is Exb. Ka-1 to the records. The noting of the doctor have already been stated above and thus are not being repeated herein.

27. In his cross-examination he states that he did not mention the time of conducting the postmortem in Exb.Ka-4. He further states that if the deceased falls in a drain of water or a big drain, he would die due to drowning. The deceased died due to drowning. The deceased would have died on 10.8.2017 at about 11 a.m. or 5-6 hours before. There was injury on the face of the deceased.

28. P.W.5 Jitendra Singh Tomar, is the Head Constable who transcribed the Chik FIR and the G.D regarding the same. He proves the Chik FIR as Exb. Ka-5 to the records and the G.D. as Exb. Ka-6 to the records.

29. In his cross-examination he states that Exb. Ka-5 was typed by the computer operator on his dictation in which Section 364 IPC was mentioned and the FIR was lodged against unknown persons. He further states that in column 12 of the FIR it is mentioned that Mohd. Zaid had gone on 10.8.2017 at about 11.15 a.m. and it is also written that it is requested that a missing report regarding the boy be lodged. He states that in column 7 the name of accused Ahsan and Naushad is not mentioned which had surfaced but the same is against unknown persons. He states that it is correct that in Exb.Ka-6, there is no name of any (12) accused mentioned. He states that the FIR was lodged under Section 364 IPC and no signature or thumb impression of the informant was taken in column 14. He further states that under the signature of the Circle Officer, no date is mentioned. He further states that in Exb. Ka-5, there is no signature of his and there is no column for his signature. The computer operator has also not signed on it. At the time of lodging of the FIR, the Station House Officer was present at the police station who was informed about the incident. The In-Charge who was the Investigating Officer of the matter is sub-ordinate to the S.H.O and the witness is sub- ordinate to him and all the directions issued by him were to be followed which was his responsibility. He states that in Exb.Ka-6 under his signature the date is not mentioned and the In-Charge Inspector has not signed on it. To a suggestion that the FIR is ante-timed and on the saying of the In-Charge, he denies the same.

30. P.W.6 S.H.O Pankaj Kumar Tyagi is the Investigating Officer of the matter. He states that the FIR of the matter was lodged under Section 364 IPC against unknown person regarding Zaid, the son of the informant going missing. The investigation was taken by him. On the same day the informant gave him another application regarding Ahsan and Naushad kidnapping his son which was noted in the G.D. He states of recording the statements of the witnesses, recording of the recovery and then filing of charge sheet against accused Ahsan and Naushad under Section 302, 364, 201 IPC. He states that the site-plan of the place of recovery of the dead-body was prepared by him which is Exb. Ka-7 to the records. He further states that the place from where the child was kidnapped was seen and a site-plan was prepared by him which is Exb.Ka-8 to the records. He proves the charge sheet as Exb. Ka-9 to the records. He further proves the video C.D as material Exb. 4 and another C.D as material Exb. 5. (13)

31. In his cross-examination he states that on none of the C.D’s the time of its preparation and its end is mentioned and there is no date mentioned below the signature of the Circle Officer on the same. He states that except for the father of the deceased Zaid, who is the informant, he did not interrogate any of his family members. He also did not interrogate any person from the school where the deceased was studying. He states that he did not interrogate the owner of the shop where the C.C.T.V footage was stated to be installed and neither did he interrogate any person of the nearby place. He states that he did not himself take the C.C.T.V. Footage. The distance between the place of incident and the police station is 1-1.1/2 km. The distance between the house of the informant and the place of incident is about 2 km. The accused persons were not beaten by him or by anyone else. He cannot tell as to how they received injuries. He does not remember that at what time police proceeded to arrest the accused. The distance of place of arrest from police station is 3-3.1/2 km. Both the accused were arrested from the house of accused Ahsan. At that time the parents and family members of Ahsan were present there and arrest memo was prepared. He states that it is true that there is no signature of parents or family members of accused Ahsan on paper no.25/1 and in the column of date, no date is mentioned. In column 9 regarding injuries, there is no description mentioned. There is no mention as to whom the information regarding arrest has been given. There is no noting about the time when the accused were sent for medical examination. In column 6 it is mentioned that on the pointing out of the accused, the dead-body of the deceased was recovered but there is no detail given of the witness who was present at the time of arrest. He had made the memo and had converted the case for which he had prepared the C.D but he had added Section 302, 201 IPC before preparing Exb. Ka-3. He further states that it is correct that recovery (14) memo was not made by him and there is no mention in it that the dead- body is being sent to C.H.C. and there is no reason mentioned in it for it. He further states that it is correct that the dead-body was not sealed at the place of recovery. In the recovery memo there is no mention as to who identified the dead-body. He does not remember as to how many persons have been shown in ravangi for the recovery. He states that it is incorrect that on the recovery memo he and S.I. Devendra Singh had only signed but there is no signature of any other police personnel. He further states that it is correct that in the name of witness Waseem there is an overwriting and there is no reference of the name of the accused in it. He states that it is correct that in Exb. Ka-3 at the place of recovery of the dead-body in the Sugarcane field, there is no reference of any pond filled with water being there. He states that it is incorrect that the dead-body has not been recovered at the said time and place and on the pointing out of the accused but all the documents have been prepared at the police station which are ante-timed and just in order to give the case a different colour, recovery on the pointing out of the accused of dead-body has been shown. It is incorrect that false recovery has been shown on the pointing out of the accused. He states that the site-plan of the place of recovery of dead-body has been prepared by him on 13.8.2017. He further states that the said site-plan has been prepared after two days of recovery of the dead-body but no reason has been given regarding delay in making of it. He states that in the site-plan the vehicle from which they had gone is not shown and even the route of the movement of the witnesses is not mentioned. He states that it is not shown in the site-plan that the place of recovery was filled with water. He states that the owner of the field was not called and he was also not interrogated. He denies that the site-plan was prepared at the police station and is also ante-timed just to give a different colour to the incident. He states that the name of (15) the accused was not mentioned in the site-plan and there is an overwriting on Section 201 IPC.

32. He states that in Exb. Ka-8 which is the site plan of the place of incident, the name of the accused is not mentioned. The place where C.C.T.V camera was installed is also not shown in Exb. Ka-8. It is correct that the place from where the witnesses have seen the accused taking the deceased is also not mentioned in the site-plan and further it is not mentioned from where the accused had called the deceased. He states that it is correct that in the site-plan Exb. Ka-8, the date of its preparation is not mentioned and the distance between the house of the informant and place “A” is also not mentioned. The site-plan was prepared on the pointing out of the informant. He states that the informant is not an eye- witness of the incident. He further states that a missing report of the deceased was not registered but a case of kidnapping was registered against unknown persons. He states that when missing report is registered, no section is mentioned in it. After the arrest of the accused, the informant had come to the police station or not he does not remember. He does not remember that after how many days he had interrogated witness Gulsher. He then states that he does not remember that witness P.W.3 Waseem has stated that the accused Ahsan and Naushad had got the dead-body recovered in his presence and his signature was also got done on the memo and if he had told him then the same would have been mentioned in his statement. It is incorrect to state that he has not investigated the matter and in conspiracy with the informant has submitted a false and baseless charge sheet against the accused. He further states that it is incorrect that all the proceedings have been done in the police station and are ante-timed just to give a different colour to the matter and to show good work and papers have been prepared in a false manner. (16)

33. P.W.7 Ramjani is a witness of inquest. He proves his signature on the inquest which is marked as Exb. Ka-10. In his cross-examination he states that in the opinion of five witnesses of inquest, the deceased died due to drowning. He denies that the inquest was not prepared before him and he had only signed on it.

34. P.W.8 Constable Bhupendra Kumar is a witness of inquest who was subsequently handed over the dead-body and he and constable Harsh Tomar took it for postmortem. He proves Form 13 and other relevant documents being Exb. Ka-11 to 14.

35. In his cross-examination he states that he left the police station in the morning along with Harsh Tomar. He went to C.H.C on his motorcycle. He states that in Exb. Ka-10 the name of the accused is not mentioned and there is an overwriting on digit 4 of Section 364 IPC in it. He states that in column 1 of Exb. Ka-10, the date of report, time and start of investigation and place is not mentioned. He states that in column 4 at the place of recovery of dead-body C.H.C. Devband is written. He further states that in column 7, the time of closure of the said document is not mentioned. He states that he reached the postmortem house with the dead-body.

36. Heard Sri Kripa Shankar Mishra, learned counsel for the appellants in both the appeals, Sri A.N. Mulla, Sri Shashi Shekhar Tiwari, Sri Arun Kumar Pandey, learned AGAs for the State and perused the records (the paper-book, the High Court file and the trial court records).

37. Learned counsel for the appellants submitted as under:- (i). The FIR was lodged under Section 364 IPC against unknown person although a missing report was given for being registered on 10.8.2017. (17) (ii). The disclosure of the name of the appellants/accused came in the present matter for the first time in the second application given by the informant on 10.8.2017. (iii). In the alleged recovery memo pertaining to recovery of dead-body, it is mentioned that Section 302/201 IPC has been added in the present matter. (iv). The inquest on the body of the deceased was conducted after its recovery but still in the recovery memo, despite the fact that the Investigating Officer had written that Section 302 and 201 IPC have been added, the inquest only states of the case being under Section 364/302 IPC. Section 201 IPC was missing in the inquest report. (v). P.W.1 Nadeem is not an eye-witness of the accused taking away the deceased with them. He discloses the names of the accused in the second application dated 10.8.2017 and states that Gulsher and Sharique were the witnesses of taking away and the same was also recorded in the C.C.T.V. camera installed in the house of Dr. Saeed Anwar. (vi). The evidence of C.C.T.V. footage cannot be relied upon at all since Dr. Saeed Anwar, the person on whose house/premises, the said camera is stated to have been installed was not examined, there is no certificate under Section 65-B of the Evidence Act regarding it and there is no certainty of the date and time of the said clipping as even P.W.2 Gulsher states that the accused used to take the child even earlier for walk. (vii). The present case is a case of circumstantial evidence in which the links in the chain of circumstances are conspicuously missing. (viii). The arrest of the accused-appellant is wholly doubtful inasmuch as the Investigating Officer states that there was no signature of any witness (18) in the recovery memo and the date in the same was also missing. He further states that the details of the person to whom information about missing was not mentioned and also the recovery of the dead-body is doubtful inasmuch as the same is alleged to have been recovered on

11.8.2017 but site-plan regarding the said recovery has been prepared on

13.8.2017 for which no explanation whatsoever has been given by the Investigating Officer. The same would go to show that the said document was prepared later on as an afterthought. (ix). The site-plan regarding the incident of taking away the deceased does not bear the date on it. In it the place where the C.C.T.V. camera is installed is also not shown. There is no explanation given regarding the same. (x). The place from where the dead-body of the deceased was recovered was Sugarcane field and there is nothing on record to show that it was filled with water so that the child could drown in it. (xi). The fact which appears is that the deceased died somewhere due to drowning after which the accused persons who were known to the informant were involved in the present matter as the informant was having some animosity with them and then the police in order to show good work has implicated them. The entire investigation in the present matter is done at the police station and the papers have been prepared just to give a different colour to the case. (xii). The appellants have no motive to commit the said offence. (xiii). The appeal be allowed and judgement and order of conviction be set-aside and the accused-appellant be acquitted of the charges levelled against them and they be directed to be released from jail forthwith since they are in jail. (19)

38. Per contra learned counsels for the State opposed the prayer for quashing and submitted as follows:- (i). The accused-appellants are known to the first informant. (ii). Gulsher, P.W.2 has stated of seeing them taking the deceased with them. (iii). The dead-body of the deceased was recovered on the pointing out of both the accused-appellants. (iv). The accused-appellants were seen taking away the deceased in the C.C.T.V. footage of a camera installed at the premises of Dr. Saeed Anwar. (v). The F.S.L report shows human blood present on the clothes of the deceased. (vi). The prosecution has proved its case beyond reasonable doubt and the links in the chain are complete. (vii). The present appeal is devoid of any merit and is liable to be dismissed.

39. After having heard the learned counsels for the parties and perusing the records, it is evident that the accused-appellants have been made accused in the present matter on the basis of second application dated

10.8.2017 given by the first informant to the police. Initially a missing report was given by him which was registered as a FIR under Section 364 IPC in which they are not named. He then on the same day gives another application to the police, stating therein that Gulsher and Sharique saw the accused Ahsan and Naushad taking his son Zaid and the same is also recorded in the C.C.T.V. of which camera is installed at (20) the house of Dr. Saeed Anwar. The accused-appellants were then made accused in the present matter. The accused Ahsan was working in the establishment of the informant. The accused Naushad was relative of Ahsan and used to visit him and thus was known to the informant. The prosecution case is of both the accused then being arrested in the night of 10/11.8.2017. A memo of arrest is stated to have drawn by the arresting officer P.W.6 who in his cross-examination states that accused were arrested from the house of accused Ahsan where Naushad was also present and at that time family members and parents of Ahsan were also present and a memo was prepared. He states that there is no signature of the parents or family members of Ahsan on the memo. He further states that in the column of date there is no date mentioned. He further states that there is no noting in it as to who was informed regarding their arrest. The memo of arrest thus is incomplete and lacks vital details in it. He then states to have taken the accused and on their pointing out states to have recovered the dead-body of the deceased Zaid from the sugarcane field of one Yaqoob. Yaqoob has not been examined by the prosecution. The cause of death of the deceased is due to asphyxia as a result of ante- mortem drowning. The site-plan of the place of recovery of the dead- body has been prepared after two days of the alleged recovery and even therein there is no mention of the field being filled with water and thus there is nothing on record to corroborate the fact that the field was filled with water. The site-plan of the place from which the deceased was alleged to have been taken by the accused persons does not bear the date on which it was prepared. There is no justifiable reason given by the Investigating Officer as to why the date in the site-plan regarding the place of taking away the deceased has not been mentioned and further as to why the site-plan regarding the place of recovery of dead-body has been prepared after two days of the alleged recovery. Further the (21) C.C.T.V. footage is being relied by the prosecution to show the accused persons taking away the deceased. The said C.C.T.V. camera is stated to be installed at the house of Dr. Saeed Anwar. Dr. Saeed Anwar has not been examined in the present matter. The said C.C.T.V. footage does not show the date and time of the deceased being taken away by the accused persons. Even there is no certificate under Section 65-B of the Indian Evidence Act with regards to the said C.C.T.V. footage.

40. The law with regards to admissibility of electronic evidence is trite. A C.C.T.V. footage can be admissible in evidence if it meets the criteria of Section 65-B of the Indian Evidence Act. A certificate under the said section must accompany the electronic record when the same is produced in evidence. The requirement of a certificate under Section 65- B (4) of the Indian Evidence Act is a condition precedent to the admissibility of evidence by way of electronic evidence.

41. In the case of Anvar P.V. v. P.K. Basheer : (2014) 10 SCC 473, it was held by the Apex Court as under: “22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (22) (Cri) 1715], does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”

42. In the case of Chandrabhan Sudam Sanap Vs. State of Maharashtra : 2025 SCC OnLine SC 174 the Apex Court while considering the question of admissibility of electronic evidence held as under: “47. A two-Judge Bench in a referral order reported in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216 referred the following question to a larger bench: “3. We are of the considered opinion that in view of Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108], the pronouncement of Court in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC (Civ) 346 : (2018) 1 SCC (Cri) 860] needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter.” (23)

48. The reference came to be answered in the judgment reported in (2020) 7 SCC 1 by a three-Judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal The relevant portions of which are as under:— “45. Thus, it is clear that the major premise of Shafhi Mohammad [Shafhi Mohammad v. State

stated that the first informant after threatening him used to commit sodomy on him and used to threaten him that if he discloses it to anyone he would implicate him falsely in a case. He did not give his Rs. 20,000/- due to him of work and even he used to visit him in jail and used to say that he has committed a wrong and would get him released soon. He states that he has been falsely implicated in the matter and is innocent.

16. The accused Naushad further states that he had given Rs. 3,000/- to the informant. He is the cousin brother of accused Ahsan. As being his relative, he has been falsely implicated in the present case and is innocent.

17. No defence witness was produced by the accused persons but the accused in their defence filed list of documents numbered as 45-Ka enclosing copies of 9 applications of the informant given to Deputy Jailor, Devband for permission to meet him.

18. The trial court after considering the evidence and material on record came to the conclusion that the links in the chain of circumstances are well connected and the prosecution has established its case beyond reasonable doubt and thus convicted the accused-appellants as above.

19. P.W.1 Nadeem is the first informant and father of the deceased. He states that he knows the accused. Accused Ahsan works with him in making crackers. The accused Naushad used to visit Ahsan. His son aged about 5 years wearing white kurta and pajama and yellow sleeper went missing from the house on 10.8.2017 at about 11.15 a.m. He searched his son a lot but could not trace him and then on 10.8.2017 he got a missing report typed and signed it and gave it at the police station. He proves the same as Exb. Ka-1 to the records. He further states that after lodging of (6) the missing report on 10.8.2017 in the evening when he came back while searching his son then Gulsher, S/o Shamim and Sharique, S/o Mohd. Khalid who are of his locality told that they saw his son going with Ahsan, his employee and Naushad. He further states that they went to the house of Dr. Saeed Anwar where C.C.T.V was installed and checked it and found that accused Ahsan had caught-hold the hands of his son and was going with him. He then gave a second application at the police station on 10.8.2017 which is proved by him as Exb. Ka-2. He further states that on 11.8.2017 the accused Ahsan and Naushad were arrested. Both the accused were taken to the sugarcane field of Yaqoob at about

4.30 a.m. from where they got the dead-body of his son recovered. His son Zaid was drowned by both the accused in the Sugarcane field which was filled with water. He can file the C.C.T.V. footage which at the present moment is not with him. He further states that his son was kidnapped. A photograph of the kidnappers can be seen in the C.C.T.V. footage in the camera of Dr. Saeed Anwar. He files the photograph and the C.C.T.V. footage of his son before kidnapping which is marked as material Exb.1 and two photograph of later on when the accused had caught his hand and were taking him have also been filed, the same are marked as material Exb.2 and 3.

20. In his cross-examination he states that the photograph have been prepared by him from the C.C.T.V. footage of Dr. Anwar. He knows Dr. Saeed Anwar since he is of the same locality. Material Exb.1 is the photograph of his son prior to the incident. The said photograph was got made by him recently. The accused Ahsan is working with him since the last 3 years. The accused Naushad is the relative of Ahsan. His son used to go Madarsa for studies which is behind his house. He used to go daily and come back. He used to go for studies at 7 a.m. and the Madarsa used to close at 11 a.m. On the day of incident he had gone to village (7) Mahikota and he did not see the incident. He did not go to call Ahsan at 9 a.m. to his house. He states that it is incorrect to state that he went to call accused Ahsan at 9 a.m. to his house and on being tutored he is denying it. He searched his son along with other people.

21. Gulsher and Sharique are the witnesses of the incident. Both the said witnesses did not go with him for search. Witness Sharique is his cousin brother. Gulsher is not his relative and lives in a different locality. After his son went missing, there was lot of news about it in the nearby places. He had also got an announcement done about the same. He did not go to the house of Ahsan in the evening but after the incident Ahsan himself came to him and for about two hours joined in the search and then absconded. The missing report was written outside the police station. He then states that it was written in the locality. When he was writing the missing report, many people had gathered there. Witness Gulsher and Sharique were not present at that time. When he came back from the police station after lodging the missing report then he met them. He denies the suggestion that they were with him at the police station. He states that he does not know from where the accused had come and on which day. The accused were arrested in the night and brought to the police station. He had also gone to the police station. He does not know when the inquest on the body of his son was done. He had gone to hospital where the dead-body was kept. The house of Gulsher is at a distance from his house but the localities are nearby. He knows Naushad as he used to come to Ahsan. Ahsan did not take his son to stroll. He never gave anything to his son. He denies the suggestion that Ahsan previously used to take his son for walking and used to love him a lot. He states that it is incorrect that he is giving this statement after being tutored. His statement was recorded by the Investigating Officer after lodging of the missing report on 10.8.2017 after which his statement was (8) not recorded. He visited the accused in jail many times. He denies the suggestion that the accused did not kidnap his son and did not murder him and that the accused did not take his son. He further denies that material Exb. 2, the photograph is also of prior to the incident. He states that he did not show the place where the C.C.T.V. was installed to the Investigating Officer. He further denies that there is no C.C.T.V. camera installed. He further denies that accused Ahsan and Naushad had money due on him and in order to misappropriate the same, he has got them falsely implicated. He further denies the suggestion that he used to commit sodomy on Ahsan against his wishes after threatening him and further denies that he never threatened him that if he tells it to anyone, he would send him in jail by implicating him in a false case. He denies that due to the same he went to meet Ahsan in the jail. He further denies that he had told Ahsan that he would get him released soon. He further denies that he has stated to the accused that he has got them falsely implicated. He further denies that he is giving a false statement on the pressure of the police.

22. P.W.2 Gulsher is a rickshaw puller and is a witness of taking away the deceased by the accused persons. He states that accused Ahsan and Naushad used to work at the place of the informant Nadeem. On

10.8.2017 at about 11-11.30 a.m. when he was waiting for passengers and roaming around, he saw both the accused taking Zaid, the child of the informant. The accused Ahsan was holding the fingers of the child. He continued transporting the passengers from one place to other and then reached his house at about 8 p.m. In the morning when he went with his rickshaw then he came to know that Zaid is missing. He had told the fact that Zaid was taken away by Ahsan and Naushad and he had seen them doing so at the police station. He had come to know that the dead- body of Zaid was recovered from the field. (9)

23. In his cross-examination he states that his house is situated at a distance of 1-1.1/2 km. from the house of the informant. He used to visit the house of Nadeem as he used to transport material on his rickshaw and thus he knew him very well. He does not know as to how many children Nadeem has. He does not know that Zaid (deceased) goes to school for study or not. The accused Ahsan mostly lives in the house of the informant and used to take Zaid for roaming. Earlier he had also seen him, taking Zaid for roaming number of times. The Investigating Officer had recorded his statement on the next day in the morning. He then states that his statement was recorded after about 20 days at the police station after which his statement was never again recorded. From the day of incident to the next day he had gone to the police station on his own. He had told the Investigating Officer that he had gone to the police station on the next day of incident but if the same is not written in his statement, he cannot tell the reason about it. On the next day he came to know about Zaid missing from persons of the locality. He does not know about broadcast from the mosque of the locality regarding Zaid going missing. He denies the suggestion that he did not see the accused taking Zaid on the day of incident at about 11.30 a.m. He further denies that he did not go to the police station and did not tell anything to the Investigating Officer. He further denies that as he is a friend of the informant, thus on his saying he is giving a false statement.

24. P.W.3 Waseem is the witness of recovery of the dead-body. He states that on 11.8.2017 at about 4-4.30 a.m., he heard that the dead-body of Zaid is lying in the Sugarcane field of Yaqoob. When he reached there, he found the dead-body lying on the medh of the field. It was about 15- 20 steps inside the field. The accused Ahsan and Naushad had got it recovered in their presence. The police then took out the dead-body and took it in its possession and prepared recovery memo on which he also (10) signed. He identifies his signature on it. The same is marked as Exb.Ka-3 to the records.

25. In his cross-examination he states that the informant of the present matter lives in a different locality than him. His locality is situated around 300-400 mtr. away from the police station. The place from where the dead-body was recovered is situated at about half kilometer from his house. In between his house and the police station on both the sides of the road, there is a lot of population. When he reached the said place apart from the police, there were around 10-12 other people present. He was present there for about 30 minutes and the papers were prepared there. He states that the dead-body of Zaid was sealed at the said place and sent for postmortem. He had signed at only one place after which he had come back to the house of the deceased. He had reached the said house at about 6 a.m. and remained there till 9-9.30 a.m. The father of the deceased and his family members were in the house. He was present at the house of the deceased at about 4.30 a.m. and there only he had heard that the dead-body of Zaid has been recovered and then 10-12 people proceeded for the said place. In the said night he had stayed at the house of the informant. His statement was recorded by the Investigating Officer in the evening at the police station. He had told the Investigating Officer that the accused Ahsan and Naushad had got the dead-body recovered and then after taking out the dead-body, a memo was prepared in which he had signed but if the same is not in the statement, he cannot tell the reason. He states that it is incorrect to say that he did not tell the Investigating Officer about it and now he is telling it to give the case a different colour. He states that when he had signed on Exb. Ka-3, except for his signature, there was no other signature on it. He states that it is incorrect that he had signed on a blank paper at the police station. He states that it is incorrect that the dead-body was not recovered in his (11) presence from the said place and no paper work was done regarding it. He further states that it is incorrect to state that he did not go to the place of recovery on the said date and time. He further states that it is incorrect that he is giving the said statement on being tutored as the informant is his friend and is giving false statement.

26. P.W.4 Dr. Virendra Bhatt conducted the postmortem of the deceased on 11.8.2017 at about 11 a.m. He proves the said postmortem which is Exb. Ka-1 to the records. The noting of the doctor have already been stated above and thus are not being repeated herein.

27. In his cross-examination he states that he did not mention the time of conducting the postmortem in Exb.Ka-4. He further states that if the deceased falls in a drain of water or a big drain, he would die due to drowning. The deceased died due to drowning. The deceased would have died on 10.8.2017 at about 11 a.m. or 5-6 hours before. There was injury on the face of the deceased.

28. P.W.5 Jitendra Singh Tomar, is the Head Constable who transcribed the Chik FIR and the G.D regarding the same. He proves the Chik FIR as Exb. Ka-5 to the records and the G.D. as Exb. Ka-6 to the records.

29. In his cross-examination he states that Exb. Ka-5 was typed by the computer operator on his dictation in which Section 364 IPC was mentioned and the FIR was lodged against unknown persons. He further states that in column 12 of the FIR it is mentioned that Mohd. Zaid had gone on 10.8.2017 at about 11.15 a.m. and it is also written that it is requested that a missing report regarding the boy be lodged. He states that in column 7 the name of accused Ahsan and Naushad is not mentioned which had surfaced but the same is against unknown persons. He states that it is correct that in Exb.Ka-6, there is no name of any (12) accused mentioned. He states that the FIR was lodged under Section 364 IPC and no signature or thumb impression of the informant was taken in column 14. He further states that under the signature of the Circle Officer, no date is mentioned. He further states that in Exb. Ka-5, there is no signature of his and there is no column for his signature. The computer operator has also not signed on it. At the time of lodging of the FIR, the Station House Officer was present at the police station who was informed about the incident. The In-Charge who was the Investigating Officer of the matter is sub-ordinate to the S.H.O and the witness is sub- ordinate to him and all the directions issued by him were to be followed which was his responsibility. He states that in Exb.Ka-6 under his signature the date is not mentioned and the In-Charge Inspector has not signed on it. To a suggestion that the FIR is ante-timed and on the saying of the In-Charge, he denies the same.

30. P.W.6 S.H.O Pankaj Kumar Tyagi is the Investigating Officer of the matter. He states that the FIR of the matter was lodged under Section 364 IPC against unknown person regarding Zaid, the son of the informant going missing. The investigation was taken by him. On the same day the informant gave him another application regarding Ahsan and Naushad kidnapping his son which was noted in the G.D. He states of recording the statements of the witnesses, recording of the recovery and then filing of charge sheet against accused Ahsan and Naushad under Section 302, 364, 201 IPC. He states that the site-plan of the place of recovery of the dead-body was prepared by him which is Exb. Ka-7 to the records. He further states that the place from where the child was kidnapped was seen and a site-plan was prepared by him which is Exb.Ka-8 to the records. He proves the charge sheet as Exb. Ka-9 to the records. He further proves the video C.D as material Exb. 4 and another C.D as material Exb. 5. (13)

31. In his cross-examination he states that on none of the C.D’s the time of its preparation and its end is mentioned and there is no date mentioned below the signature of the Circle Officer on the same. He states that except for the father of the deceased Zaid, who is the informant, he did not interrogate any of his family members. He also did not interrogate any person from the school where the deceased was studying. He states that he did not interrogate the owner of the shop where the C.C.T.V footage was stated to be installed and neither did he interrogate any person of the nearby place. He states that he did not himself take the C.C.T.V. Footage. The distance between the place of incident and the police station is 1-1.1/2 km. The distance between the house of the informant and the place of incident is about 2 km. The accused persons were not beaten by him or by anyone else. He cannot tell as to how they received injuries. He does not remember that at what time police proceeded to arrest the accused. The distance of place of arrest from police station is 3-3.1/2 km. Both the accused were arrested from the house of accused Ahsan. At that time the parents and family members of Ahsan were present there and arrest memo was prepared. He states that it is true that there is no signature of parents or family members of accused Ahsan on paper no.25/1 and in the column of date, no date is mentioned. In column 9 regarding injuries, there is no description mentioned. There is no mention as to whom the information regarding arrest has been given. There is no noting about the time when the accused were sent for medical examination. In column 6 it is mentioned that on the pointing out of the accused, the dead-body of the deceased was recovered but there is no detail given of the witness who was present at the time of arrest. He had made the memo and had converted the case for which he had prepared the C.D but he had added Section 302, 201 IPC before preparing Exb. Ka-3. He further states that it is correct that recovery (14) memo was not made by him and there is no mention in it that the dead- body is being sent to C.H.C. and there is no reason mentioned in it for it. He further states that it is correct that the dead-body was not sealed at the place of recovery. In the recovery memo there is no mention as to who identified the dead-body. He does not remember as to how many persons have been shown in ravangi for the recovery. He states that it is incorrect that on the recovery memo he and S.I. Devendra Singh had only signed but there is no signature of any other police personnel. He further states that it is correct that in the name of witness Waseem there is an overwriting and there is no reference of the name of the accused in it. He states that it is correct that in Exb. Ka-3 at the place of recovery of the dead-body in the Sugarcane field, there is no reference of any pond filled with water being there. He states that it is incorrect that the dead-body has not been recovered at the said time and place and on the pointing out of the accused but all the documents have been prepared at the police station which are ante-timed and just in order to give the case a different colour, recovery on the pointing out of the accused of dead-body has been shown. It is incorrect that false recovery has been shown on the pointing out of the accused. He states that the site-plan of the place of recovery of dead-body has been prepared by him on 13.8.2017. He further states that the said site-plan has been prepared after two days of recovery of the dead-body but no reason has been given regarding delay in making of it. He states that in the site-plan the vehicle from which they had gone is not shown and even the route of the movement of the witnesses is not mentioned. He states that it is not shown in the site-plan that the place of recovery was filled with water. He states that the owner of the field was not called and he was also not interrogated. He denies that the site-plan was prepared at the police station and is also ante-timed just to give a different colour to the incident. He states that the name of (15) the accused was not mentioned in the site-plan and there is an overwriting on Section 201 IPC.

32. He states that in Exb. Ka-8 which is the site plan of the place of incident, the name of the accused is not mentioned. The place where C.C.T.V camera was installed is also not shown in Exb. Ka-8. It is correct that the place from where the witnesses have seen the accused taking the deceased is also not mentioned in the site-plan and further it is not mentioned from where the accused had called the deceased. He states that it is correct that in the site-plan Exb. Ka-8, the date of its preparation is not mentioned and the distance between the house of the informant and place “A” is also not mentioned. The site-plan was prepared on the pointing out of the informant. He states that the informant is not an eye- witness of the incident. He further states that a missing report of the deceased was not registered but a case of kidnapping was registered against unknown persons. He states that when missing report is registered, no section is mentioned in it. After the arrest of the accused, the informant had come to the police station or not he does not remember. He does not remember that after how many days he had interrogated witness Gulsher. He then states that he does not remember that witness P.W.3 Waseem has stated that the accused Ahsan and Naushad had got the dead-body recovered in his presence and his signature was also got done on the memo and if he had told him then the same would have been mentioned in his statement. It is incorrect to state that he has not investigated the matter and in conspiracy with the informant has submitted a false and baseless charge sheet against the accused. He further states that it is incorrect that all the proceedings have been done in the police station and are ante-timed just to give a different colour to the matter and to show good work and papers have been prepared in a false manner. (16)

33. P.W.7 Ramjani is a witness of inquest. He proves his signature on the inquest which is marked as Exb. Ka-10. In his cross-examination he states that in the opinion of five witnesses of inquest, the deceased died due to drowning. He denies that the inquest was not prepared before him and he had only signed on it.

34. P.W.8 Constable Bhupendra Kumar is a witness of inquest who was subsequently handed over the dead-body and he and constable Harsh Tomar took it for postmortem. He proves Form 13 and other relevant documents being Exb. Ka-11 to 14.

35. In his cross-examination he states that he left the police station in the morning along with Harsh Tomar. He went to C.H.C on his motorcycle. He states that in Exb. Ka-10 the name of the accused is not mentioned and there is an overwriting on digit 4 of Section 364 IPC in it. He states that in column 1 of Exb. Ka-10, the date of report, time and start of investigation and place is not mentioned. He states that in column 4 at the place of recovery of dead-body C.H.C. Devband is written. He further states that in column 7, the time of closure of the said document is not mentioned. He states that he reached the postmortem house with the dead-body.

36. Heard Sri Kripa Shankar Mishra, learned counsel for the appellants in both the appeals, Sri A.N. Mulla, Sri Shashi Shekhar Tiwari, Sri Arun Kumar Pandey, learned AGAs for the State and perused the records (the paper-book, the High Court file and the trial court records).

37. Learned counsel for the appellants submitted as under:- (i). The FIR was lodged under Section 364 IPC against unknown person although a missing report was given for being registered on 10.8.2017. (17) (ii). The disclosure of the name of the appellants/accused came in the present matter for the first time in the second application given by the informant on 10.8.2017. (iii). In the alleged recovery memo pertaining to recovery of dead-body, it is mentioned that Section 302/201 IPC has been added in the present matter. (iv). The inquest on the body of the deceased was conducted after its recovery but still in the recovery memo, despite the fact that the Investigating Officer had written that Section 302 and 201 IPC have been added, the inquest only states of the case being under Section 364/302 IPC. Section 201 IPC was missing in the inquest report. (v). P.W.1 Nadeem is not an eye-witness of the accused taking away the deceased with them. He discloses the names of the accused in the second application dated 10.8.2017 and states that Gulsher and Sharique were the witnesses of taking away and the same was also recorded in the C.C.T.V. camera installed in the house of Dr. Saeed Anwar. (vi). The evidence of C.C.T.V. footage cannot be relied upon at all since Dr. Saeed Anwar, the person on whose house/premises, the said camera is stated to have been installed was not examined, there is no certificate under Section 65-B of the Evidence Act regarding it and there is no certainty of the date and time of the said clipping as even P.W.2 Gulsher states that the accused used to take the child even earlier for walk. (vii). The present case is a case of circumstantial evidence in which the links in the chain of circumstances are conspicuously missing. (viii). The arrest of the accused-appellant is wholly doubtful inasmuch as the Investigating Officer states that there was no signature of any witness (18) in the recovery memo and the date in the same was also missing. He further states that the details of the person to whom information about missing was not mentioned and also the recovery of the dead-body is doubtful inasmuch as the same is alleged to have been recovered on

11.8.2017 but site-plan regarding the said recovery has been prepared on

13.8.2017 for which no explanation whatsoever has been given by the Investigating Officer. The same would go to show that the said document was prepared later on as an afterthought. (ix). The site-plan regarding the incident of taking away the deceased does not bear the date on it. In it the place where the C.C.T.V. camera is installed is also not shown. There is no explanation given regarding the same. (x). The place from where the dead-body of the deceased was recovered was Sugarcane field and there is nothing on record to show that it was filled with water so that the child could drown in it. (xi). The fact which appears is that the deceased died somewhere due to drowning after which the accused persons who were known to the informant were involved in the present matter as the informant was having some animosity with them and then the police in order to show good work has implicated them. The entire investigation in the present matter is done at the police station and the papers have been prepared just to give a different colour to the case. (xii). The appellants have no motive to commit the said offence. (xiii). The appeal be allowed and judgement and order of conviction be set-aside and the accused-appellant be acquitted of the charges levelled against them and they be directed to be released from jail forthwith since they are in jail. (19)

38. Per contra learned counsels for the State opposed the prayer for quashing and submitted as follows:- (i). The accused-appellants are known to the first informant. (ii). Gulsher, P.W.2 has stated of seeing them taking the deceased with them. (iii). The dead-body of the deceased was recovered on the pointing out of both the accused-appellants. (iv). The accused-appellants were seen taking away the deceased in the C.C.T.V. footage of a camera installed at the premises of Dr. Saeed Anwar. (v). The F.S.L report shows human blood present on the clothes of the deceased. (vi). The prosecution has proved its case beyond reasonable doubt and the links in the chain are complete. (vii). The present appeal is devoid of any merit and is liable to be dismissed.

39. After having heard the learned counsels for the parties and perusing the records, it is evident that the accused-appellants have been made accused in the present matter on the basis of second application dated

10.8.2017 given by the first informant to the police. Initially a missing report was given by him which was registered as a FIR under Section 364 IPC in which they are not named. He then on the same day gives another application to the police, stating therein that Gulsher and Sharique saw the accused Ahsan and Naushad taking his son Zaid and the same is also recorded in the C.C.T.V. of which camera is installed at (20) the house of Dr. Saeed Anwar. The accused-appellants were then made accused in the present matter. The accused Ahsan was working in the establishment of the informant. The accused Naushad was relative of Ahsan and used to visit him and thus was known to the informant. The prosecution case is of both the accused then being arrested in the night of 10/11.8.2017. A memo of arrest is stated to have drawn by the arresting officer P.W.6 who in his cross-examination states that accused were arrested from the house of accused Ahsan where Naushad was also present and at that time family members and parents of Ahsan were also present and a memo was prepared. He states that there is no signature of the parents or family members of Ahsan on the memo. He further states that in the column of date there is no date mentioned. He further states that there is no noting in it as to who was informed regarding their arrest. The memo of arrest thus is incomplete and lacks vital details in it. He then states to have taken the accused and on their pointing out states to have recovered the dead-body of the deceased Zaid from the sugarcane field of one Yaqoob. Yaqoob has not been examined by the prosecution. The cause of death of the deceased is due to asphyxia as a result of ante- mortem drowning. The site-plan of the place of recovery of the dead- body has been prepared after two days of the alleged recovery and even therein there is no mention of the field being filled with water and thus there is nothing on record to corroborate the fact that the field was filled with water. The site-plan of the place from which the deceased was alleged to have been taken by the accused persons does not bear the date on which it was prepared. There is no justifiable reason given by the Investigating Officer as to why the date in the site-plan regarding the place of taking away the deceased has not been mentioned and further as to why the site-plan regarding the place of recovery of dead-body has been prepared after two days of the alleged recovery. Further the (21) C.C.T.V. footage is being relied by the prosecution to show the accused persons taking away the deceased. The said C.C.T.V. camera is stated to be installed at the house of Dr. Saeed Anwar. Dr. Saeed Anwar has not been examined in the present matter. The said C.C.T.V. footage does not show the date and time of the deceased being taken away by the accused persons. Even there is no certificate under Section 65-B of the Indian Evidence Act with regards to the said C.C.T.V. footage.

40. The law with regards to admissibility of electronic evidence is trite. A C.C.T.V. footage can be admissible in evidence if it meets the criteria of Section 65-B of the Indian Evidence Act. A certificate under the said section must accompany the electronic record when the same is produced in evidence. The requirement of a certificate under Section 65- B (4) of the Indian Evidence Act is a condition precedent to the admissibility of evidence by way of electronic evidence.

41. In the case of Anvar P.V. v. P.K. Basheer : (2014) 10 SCC 473, it was held by the Apex Court as under: “22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (22) (Cri) 1715], does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”

42. In the case of Chandrabhan Sudam Sanap Vs. State of Maharashtra : 2025 SCC OnLine SC 174 the Apex Court while considering the question of admissibility of electronic evidence held as under: “47. A two-Judge Bench in a referral order reported in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216 referred the following question to a larger bench: “3. We are of the considered opinion that in view of Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108], the pronouncement of Court in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC (Civ) 346 : (2018) 1 SCC (Cri) 860] needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter.” (23)

48. The reference came to be answered in the judgment reported in (2020) 7 SCC 1 by a three-Judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal The relevant portions of which are as under:— “45. Thus, it is clear that the major premise of Shafhi Mohammad [Shafhi Mohammad v. State