B. Kemal Pasha ORDER
B. Kemal Pasha, J.
1. During the preparation of scene mahazar in the case, the investigating officer had contemporaneously recorded the scene as such and the activities, through video graph as well as photograph. The same were recorded in DVDs. Even though such an exercise was done by the investigating officer, the prosecution has not relied on the said DVDs as, according to the prosecution, there was no certification as mandated under Section 65B(4) of the Indian Evidence Act, 1872 making it admissible in evidence as an electronic record.
2. During the cross-examination of the investigating officer, the defence wanted to press into service those two DVDs, thereby those two DVDs were marked as documents before the court below through the cross-examination of the investigating officer on the side of the accused, as D30 and D31. The evidence is over. The case stood posted for the examination of the accused under Section 313 Cr.P.C.
3. During the course of the cross-examination of the investigating officer, Crl.M.P. No. 4641/2015 was filed by the accused before the court below seeking that those DVDs had to be played before the court below in open court for enabling him to confront PW22, the investigating officer, on the basis of the contents of those DVDs. The said request was denied by the court below mainly on two grounds:-- (1) It is not an electronic record admissible in evidence as it does not contain proper certification within the meaning of Section 65B(4) of the Indian Evidence Act, and (2) The same not being a previous statement of the witness, the defence cannot encash it for the purpose of contradicting the witness.
4. Heard learned Senior Counsel for the petitioner Sri. K. Gopalakrishna Kurup and learned Director General of Prosecutions Sri. Asaf Ali.
5. The learned Senior Counsel for the petitioner has invited the attention of this Court to the decision in Ramaiah alias Rama v. State of Karnataka [MANU/SC/0677/2014 : (2014) 9 SCC 365], wherein it was held in paragraph 14 as follows:--
"To falsify this position taken by the prosecution through these witnesses, the learned counsel for the appellant had taken us to the evidence of PW8 who had drawn mahazar near the well. This mahazar coupled with the statement of PW8 is a very significant piece of evidence which has considerable effect in denting the creditworthiness of the testimony of these witnesses. As per PW8 himself, when he had reached the spot, it was the mother of the deceased who pointed out the place where the dead body was lying. This assertion amply demonstrates that the mother of the deceased had known where the body was kept and she along with PW1 and PW2 had reached the place of occurrence before the dead body was cremated. Relying upon this evidence, the trial court has disbelieved the story of the prosecution that Laxmi was cremated even before these persons had reached the village of the appellant. Strangely, the High Court has discarded the mahazar drawn by PW8 by giving a specious reason viz. it was not an exhibited document before the court, little realising that this was the document produced by the prosecution itself and even without formal proof thereto by the prosecution, it was always open for the defence to seek reliance on such an evidence to falsify the prosecution version. Moreover, PW8 has sp........