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Judgments of Supreme Court of India and High Courts

Manoj Sen (Khichi) vs State Of Rajasthan on 30 October, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3015/2019

Manoj Sen (Khichi) S/o Sh. Bajrang Lal Khinchi, Aged About 30
Years, B/c Nai , R/o Village Titari , Tehsil Ladnu , Distt. Nagaur At
Present Residing At Naya Bas, Near Karni Mata Mandir ,
Sujangarh , Distt. Churu (Raj.)

—-Petitioner
Versus

1. State Of Rajasthan, Through Pp

2. Nisha Sen W/o Sh. Manoj Sen (Khinchi) D/o Sh. Sushil
Sen, R/o Naya Bas, Sujangarh , Distt. Churu At Present
Residing At House Of J.p. Bangra , Behind Bajaj Hospital ,
Naya Bas, Sujangarh , Distt. Churu (Raj.)

—-Respondents

For Petitioner(s) : Mr. K.L. Thakur
For Respondent(s) : Mr. Gaurav Singh
Mr. Khet Singh

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Order

30/10/2019

Instant misc. petition has been filed by the petitioner under

Section 482 Cr.P.C against the order dated 24.05.2019 passed by

learned Special Judge, Protection of Children from Sexual offence

Cases, Churu in Sessions Case No. 104/2018 to the extent of

allowing the application under Section 65 of the Evidence Act

taking the mobile phone of the respondent no.2 on record and

permitting to mark exhibit in evidence.

Brief facts of the case are that the respondent

no.2/prosecutrix filed a complaint against the present petitioner

and his father before the court of Additional Chief Judicial

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Magistrate, Sujangarh, District ChurU stating therein that she is

married to Manoj Kumar as per Hindu rites on 20.02.2008. After

her marriage, her father purchased a house and gave it to her in

which she was residing alongwith family. However, the husband of

complainant used to consume ‘Bhang’ and liquor and used to force

her for performing unnatural sex and upon protesting, he used to

beat her. It was further stated that the petitioner used to molest

her 12 year old sister. The complainant caught her husband red-

handed but upon making complaint to her father-in-law, she was

turned out from the house. It was also stated that the accused

sent messages on whatsapp and other social networking sites

bringing disrepute to her mother and sister claiming to having

illicit relations with him.

The said complaint was sent for investigation before the

police under Section 156(3) Cr.P.C. The police registered a case

being FIR No. 11 dated 08.01.2018 for offence under Sections

323, Section327, Section309, Section377, Section354-A, Section354-C and Section120B IPC.

After conclusion of investigation, the police filed a challan

against the petitioner for offence under Sections 377, 354-A, 354-

C, 498, 506 SectionIPC and Section 9/10 of POCSO Act and Section 67 of

I.T. Act before the court of learned Special Judge, POCSO Act

Cases, Churu.

During the course of trial, the respondent no.2/prosecutrix

moved an application under Section 65 of the Evidence Act stating

that she has produced certified copies of four documents which

are material evidence, therefore, same may be taken on record

and be permitted to mark exhibit. Another application was filed

by the complainant alongwith affidavit stating that she used two

mobile SIMs which belong to her only and she has kept the data

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safe, therefore, it was prayed that she may be permitted to

produce the mobile handset and exhibit the same.

After hearing both the parties, the learned trial court partly

allowed the application filed by the prosecutrix. The trial court vide

order dated 24.05.2019, while declining to take the documents on

record, permitted to take the mobile handset of prosecutrix on

record and mark exhibit upon the same. Hence, this misc.

petition.

Counsel for the petitioner submits that there is contradiction

with regard to the mobile number being used by the respondent

no.2/complainant as to whether the mobile sought to be produced

on record is the same which was being used by her at the relevant

time. It is further argued that it was open for the respondent no.2

to provide her mobile phone to the investigating officer but she did

not do so and after a period of about 15 months, she has filed an

application for taking the mobile phone on record. It is further

argued that Section 65-B of the Evidence Act deals with specific

provision with respect to admissibility of electronic

document/record and in absence of proper compliance of said

provisions, the evidence of mobile cannot be accepted and read in

evidence.

Per contra, learned Public Prosecutor as well as counsel for

the complainant argued that the petitioner has wrongly construed

the electronic documents to be secondary whereas, the

respondent no.2 is seeking to produce the original electronic

record i.e primary evidence of the electronic record, therefore,

same is admissible in evidence without compliance of conditions

mentioned in Section 65-B of the Evidence Act. Thus, the

document sought to be taken on record is original document and

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trial court has rightly allowed the application filed by the

respondent no.2. In support of his contentions, learned counsel for

the respondent no.2 placed reliance on judgment of Hon’ble Apex

Court in the case of Anvar P.V. Vs. P.K. Basheer reported in (2014)

AIR 5695 so also judgment of co-ordinate Bench of this Court in

the case of Paras Jain Ors Vs. State of Rajasthan reproted in

2016 WLC (Raj.) 551.

I have considered the rival arguments and carefully gone

through the material on record.

Section 65-B of the Indian Evidence Act deals with the

admissibility of electronic record. As per Section 65-B,

notwithstanding anything contained in the SectionEvidence Act, any

information contained in an electronic record which is printed on a

paper, stored, recorded or copied in optical or magnetic media

produced by a computer shall be deemed to be a document only if

the conditions mentioned under sub- Section (2) are satisfied,

without further proof or production of the original. The very

admissibility of such a document, i.e., electronic record which is

called as computer output, depends on the satisfaction of the four

conditions under Section 65B(2).

The specified conditions under Section 65B(2) of the

Evidence Act reads as under:

(i) The electronic record containing the information
should have been produced by the computer during
the period over which the same was regularly used to
store or process information for the purpose of any
activity regularly carried on over that period by the
person having lawful control over the use of that
computer;

(ii) The information of the kind contained in electronic
record or of the kind from which the information is

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derived was regularly fed into the computer in the
ordinary course of the said activity;

(iii) During the material part of the said period, the
computer was operating properly and that even if it
was not operating properly for some time, the break or
breaks had not affected either the record or the
accuracy of its contents; and

(iv) The information contained in the record should be
a reproduction or derivation from the information fed
into the computer in the ordinary course of the said
activity.

Further under Section 65B(4) of the Evidence Act, if it is

desired to give a statement in any proceedings pertaining to an

electronic record, it is permissible provided the following

conditions are satisfied:

(a) There must be a certificate which identifies the
electronic record containing the statement;

(b) The certificate must describe the manner in which
the electronic record was produced;

(c) The certificate must furnish the particulars of the
device involved in the production of that record;

(d) The certificate must deal with the applicable
conditions mentioned under Section 65B(2) of the
Evidence Act; and

(e) The certificate must be signed by a person
occupying a responsible official position in relation to
the operation of the relevant device.

Thus, an electronic record by way of secondary evidence

shall not be admitted in evidence unless the requirement under

Section 65-B are satisfied. Thus, in the case of CD, VCD, chop etc

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. However, if the electronic record as such is used as

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primary evidence under Section 62 of the Act, the same is

admissible in evidence without compliance of conditions

mentioned in Section 65-B of the Evidence Act. In the present

case also, the respondent no.2 had filed an application for

adducing primary evidence by making available in evidence, the

original mobile handset alongwith SIMs used by the respondent

no.2 which recorded the data and therefore, the same is

admissible in evidence.

Hon’ble Apex court in the case of Anvar P.V (supra) has

clarified the legal position in para no.24 of the judgment which

reads as under :-

“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 and by feeding them
into a computer, CDs were made therefrom which were
produced in court, without due certification. Those CDs
cannot be admitted in evidence since the mandatory
requirements of Section 65B 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 on electronic record with
reference to Section 59, Section65A and Section65B of the Evidence
Act, if an electronic record as such is used as primary
evidence under Section 62 of the Evidence Act, the

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same is admissible in evidence, without compliance of
the conditions in Section 65B of the Evidence Act.”

In the facts and circumstances of the case so also in the light

of the judicial pronouncement of Hon’ble Apex Court, the trial

court has not committed any illegality or perversity in allowing the

application filed by the respondent no.2. Hence, this misc. petition

is hereby dismissed. Stay petition is also dismissed.

(MANOJ KUMAR GARG),J

173-BJSH/-

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