1. The present revision is against the judgment of conviction, dated 27th January, 2015 awarded by 7th Judicial Magistrate, First Class, Chandrapur in R.C.C. No. 480 of 2014 for the offence punishable under Sections 380, 457 of the Indian Penal Code by which he was sentenced to suffer rigorous imprisonment of two years and fine of Rs.1,000/- for the offence punishable under Section 380 of Indian Penal Code, in default, to further suffer simple imprisonment for eight days. He was further sentenced to suffer rigorous imprisonment for three years and fine of Rs.1,000/- for the offence punishable under Section 457 of the Indian Penal Code, in default, to further suffer simple imprisonment for eight days.
2. The applicant/accused challenged the said judgment before the Sessions Judge, Chandrapur in Criminal Appeal No. 72 of 201
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5. Learned Sessions Judge partly allowed the appeal and modified the sentence. In stead of three years, conviction for the offence punishable under Section 380 of Indian Penal Code is altered to suffer rigorous imprisonment for two years and two years for the offence punishable under Section 457 of the Indian Penal Code and enhanced fine of Rs.1500/- and Rs.2000/- respectively. Both the sentences were directed to run concurrently. Both the sentences are under challenge in the present appeal.
3. The case of the applicant/accused, in short, is as under:
On 10.01.2014, complainant locked his shop at 08:30 p.m. and went to his home. On next day i.e. 11th January, 2014, at about 09:00 a.m., when complainant went to his shop, he saw that both the locks of shutter were broken. The drawer of counter was also opened. He found that Rs.1000/which were kept in the drawer, were stolen. On the same day, he lodged report in the City Police Station, Chandrapur. Crime No. 13 of 2014 came to be registered for the offence punishable under Sections 457 and 380 of the Indian Penal Code. Investigating Officer visited the spot of incident and prepared spot panchnama. There was CCTV camera. On the basis of CCTV footage, Investigating Officer arrested the accused. His disclosure statement was recorded. After completing investigation, charge sheet came to be filed before the JMFC. Charge was framed at Exh.3. The prosecution has examined four witnesses. Statement of accused was recorded under Section 313 of the Code of Criminal Procedure. After hearing the prosecution and defence, learned JMFC convicted applicant/accused as stated above.
4. Heard Smt. S.P. Dhotre, learned Counsel (appointed) appearing on behalf of the applicant and Shri C.A. Lokhande, learned Additional Public Prosecutor appearing on behalf of the respondent/State.
5. Smt. Dhotre, learned Counsel for the applicant has pointed out cross-examination of Investigating Officer (PW3) and submitted that the printout of CCTV footage was produced before the Court. As per the provisions of Section 65B of the Indian Evidence Act, this evidence is not admissible. Learned Counsel has submitted that there is no other evidence to show that the applicant committed house breaking and committed theft of Rs.1,000/-. Learned trial Court as well as first appellate Court not considered the same and wrongly convicted the accused. In support of her submission, learned Counsel for the applicant has relied upon the judgment of this Court in the case of Balasaheb Gurling Todkari and others .v. State of Maharashtra (reported in 2013(3) Bom CR (Cri), 51). At last, she submitted that without any cogent evidence, applicant came to be convicted. Therefore, he is entitled for acquittal.
6. Shri Lokhande, learned Additional Public Prosecutor for the respondent/State has vehemently opposed the revision and supported the judgments impugned in the instant revision.
7. Perused the evidence on record. Evidence of PW1 (complainant) shows that in the night of incident i.e. 09.01.2014, he locked his shop and went to his house. On the next day morning, when he came to shop, he found both the locks of shutter were broken. Lock of counter was also broken. Rs.1000/- which were kept in the drawer were stolen. Therefore, he went to the Police Station and lodged the report. He has stated that he saw the accused in the CCTV footage and, therefore, he identified before the Court. PW2 (panch witness Pagade) has stated that in his presence, sport panchnama (Exh.10) was prepared. PW3 (IO) has stated that he saw the CCTV footage and taken printout of CCTV footage. Accused was seen in the said footage, therefore, he was arrested. PW4 (panch witness Dhote) stated about the spot panchnama.
8. From the perusal of evidence of PW Nos.1 to 4, there is no dispute that none of the witnesses saw the accused while committing crime. PW1 has only stated that when he came to shop in the morning, he saw two locks were broken. Cash counter was also broken and Rs.1000/- were found to be stolen. He has stated that there was CCTV camera and from the CCTV footage, he identified the accused before the Court. Except this, there is nothing on record to connect the accused. Investigating Officer (PW3) has stated that he had taken printout of the CCTV footage. On the basis of the same, he arrested the accused.
9. How to prove electronic evidence is given in Sections 65A and 65B of the Indian Evidence Act. As per Section 65A, the contents of electronic records may be proved in accordance with the provisions of Section 65B. As per Section 65B, if the printout etc. prepared from the original electronic records, then there should be certificate about the genuineness. In the present case, except the printout of CCTV camera, there is no other evidence certifying under Section 65B of the Indian Evidence Act. Learned trial Court as well first appellate Court not taken into consideration the provisions of Section 65B of the Indian Evidence Act. In fact, the printout of CCTV footage is not admissible in evidence. Learned JMFC admitted the same without following due procedure.
10. In the case of Balasaheb Gurling Todkari and others .v. State of Maharashtra (cited supra), the Division of this Court has observed as under:
“19. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the evidence Act. The very caption of section 65A of the Evidence Act, read with sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under section 65B of the Evidence Act. That is a complete Code in itself. Being a special law, the general law under sections 63 and 65 has to yield.”
It is further observed that -
“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, specil law will always prevail over the general law. It appears, the court omitted to take note of sections 59 and 65A 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 65A and 65B. 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 (supra), does not lay down the correct legal position.”
11. In the case in hand, learned trial Court as well as the first appellate Court not followed the procedure given under Sections 65A and 65B of Indian Evidence Act. If the electronic record i.e. printout of CCTV footage is not considered then there is no evidence against the accused. The CCTV printout not admissible and, therefore, cannot be considered as an evidence before the Court. There is no evidence against the accused to show that he has committed theft in the shop of complainant. Hence, both the judgments of trial Court and first appellate Court are liable to be quashed and set aside.
12. In that view of the matter, the revision is allowed. The impugned judgments of the learned trial Court as well as first appellate Court in RCC No. 480 of 2014 and in Criminal Appeal No. 72 of 2015 respectively are hereby quashed and set aside. The applicant/accused is hereby acquitted of the offence charged with.
Fees payable to Smt. S.P. Dhotre, learned Counsel (appointed) to represent the applicant/accused, are quantified at Rs.5,000/- (rupees five thousand only).
R and P be sent back.