Gujarat High Court
Bharatbhai Manilal Jesangji ... vs State Of Gujarat on 6 May, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/1258/2024 ORDER DATED: 06/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 1258 of 2024
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BHARATBHAI MANILAL JESANGJI BRAHMBHATT (BAROT) & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PRATIK B BAROT(3711) for the Applicant(s) No. 1,2,3
MR NIRAJ SHARMA APP for the Respondent(s) No. 1
UNSERVED EXPIRED (N) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/05/2026
ORDER
1. The present revision application under section 438 read with section 442 of the Bhartiya Nagarik Surkasha Sanhita, 2023 (herein after referred to as the 'BNSS Act'), has been filed against the order dated 26.07.2024 passed by the Additional Sessions Judge, Mehsana vide Exh.168 application in Special ACB Case No.9 of 2017 and 2 of 2018.
2. The trial was conducted in connection with the FIR being C.R. No.I-118 of 2017 registered at Mehsana Taluka Police Station dated 13.06.2017 and the charge-sheet essentially was filed under section 302 of IPC and ultimately being a case of custodial death, the matter was proceeded and three accused as police officials came to be chargesheeted, and four others were named in column no.2 of the charge- sheet.
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3. Learned advocate Mr. Pratik B.Barot submitted that the prosecution examined FSL officer as P.W.11 vide Exh.146 and by playing the DVD in the Court room prepared on the strength of CCTV footage, had recorded the evidence of the witness.
3.1 Learned advocate Mr. Barot stated that the witness Dharmendra Govindlal Shah was examined as P.W.11, who was Retired Scientific Officer of D.F.S. Gandhinagar, for the purpose of electronic evidence which was of the CCTV footage recording and the back up was taken by Western Digital Company, and the USB Hard-disk with Serial No.WXQ1A3724CY3 was taken in a plastic bag, which was thereafter sealed and handed over to the Investigating Officer Advocate Mr. Barot stated that the said CCTV footage recording was sent for examination to D.F.S., Gandhinagar and the witness had brought the report along with the certificate under section 65B(4)(c) of the Indian Evidence Act.
3.2 Learned advocate Mr. Barot submitted that the report was produced on record by the witness and the certificate in the form at Exh.147 and 148; that procedure adopted by the Public Prosecutor was in accordance with the law and all the muddamal article in the form of electronic evidence was produced on record with the opinion of the officer concerned, was recorded. Advocate Mr. Barot submitted that the evidence, which was recorded by the Public Prosecutor from para-19 to 27 cannot be admitted in evidence, as the expert Page 2 of 6 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu May 07 2026 Downloaded on : Thu May 07 22:16:17 IST 2026 NEUTRAL CITATION R/CR.RA/1258/2024 ORDER DATED: 06/05/2026 undefined was asked to identify the persons in the video which was run in the Court.
3.3 Learned advocate Mr. Barot stated that the DVR was already put in evidence at Exh.165, and that DVR had been brought by him and the Annexure-B,C, D and E were referred, whereupon the Case No.DFS/EE/2017/CF/342 was written and both the DVRs were produced in evidence at Exh.165 and
166. Advocate Mr. Barot submitted that D.V.Ds were already exhibited, there was no necessity for the prosecution to open the DVD, as those DVDs were abstracts from DVR, the expert witness had referred to two folders, and in one folder, there were about 33 videos.
3.4 Learned advocate Mr. Barot submitted that thus far the evidence recorded would be admissible, but asking the expert to identify the person in the DVD would be against law, as that expert would have personally not known any of the persons in videos of the DVDs.
4. Learned APP Mr. Niraj Sharma stated that the expert witnesses are to be examined as an expert in view of the provision of section 45A of the Indian Evidence Act, 1872, and thus, stated that the report, DVR and DVD would go in evidence along with the report in accordance to section 65B(4). Mr. Sharma stated that it becomes relevant document in accordance to the provision of section 293 of the Cr.P.C.
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5. Section 65B(4) reads as under:
"65B(4): In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
6. The object of the provision under section 65B(4) of the Indian Evidence Act makes it desirable in a proceeding for giving a statement in evidence by virtue of Section 65B, a certification with regard to the doing of the things which have been notified in clause (a), (b) and (c) of sub-section (4) of section 65B, and those report are to be signed by the person occupying a responsible official position in relation to operation of relevant device with the management of the relevant activity, as the case may be, and that shall be in evidence of any matter stated in the certificate and for that purpose itself, the provision in sub-section (4) has been incorporated to make it sufficient for the matter to be stated to the best of the knowledge and belief of the person stating it.
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7. Thus, sub-section (4) of section 65B of the Indian Evidence Act is for the certification by the person, who holds the responsible position and who operates the relevant device under his management for the activity, which has been called for, and that activity would be identified regarding the electronic record, which would be containing some statement or describing the manner in which it was produced. The authorized person would be entitled to give the particulars of any device involved in the production of that electronic record, as may be necessary for the purpose of showing that, the electronic record was produced by a 'computer or a device', and in accordance thereof he has to certify that he had dealt with the electronic records and the device, as referred in accordance to the condition mentioned in sub- section (2) of the section 65B of the Indian Evidence Act.
8. It is only to that extent that the expert was required to be examined, as provided under section 45A of the Evidence Act, where the witness P.W.11 - Dharmendra Govindlal Shah was called for giving his opinion as an examiner of the electronic evidence and such person as an examiner of the electronic evidence is to be considered as an expert for that purpose of section 45A read with section 65B.
9. In view of this proposition of law and the provision under section 65B and section 45A of the Indian Evidence Act, this Court concurs with the submission made by learned advocate Page 5 of 6 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu May 07 2026 Downloaded on : Thu May 07 22:16:17 IST 2026 NEUTRAL CITATION R/CR.RA/1258/2024 ORDER DATED: 06/05/2026 undefined Mr. Barot that the expert was required to be examined only for that purpose restraining him to give evidence with regard to the electronic examination, which he has made and the certification thereof.
10. The Public Prosecutor appears to have gone beyond that limit of asking the expert witness to identify the persons in the video, which the expert would certainly have no knowledge, as he would not be personally knowing the persons in the recorded videos of the DVDs.
11. On perusal of the deposition of the witness P.W.11, paragraph Nos.19 to 27 were not at all relevant evidence to be recorded through the expert witness, as he would have no personal knowledge with regard to the images or the persons in the videos.
12. This Court considers that such evidence recorded was not at all necessary, as the witness - P.W.11 was an expert witness. Hence, in the deposition at Exh.146 from para-19 till para-27 is ordered to be expunged by marking the said paragraph with red ink with an order of expunging the same.
13. In the result, the present application is allowed. The learned concerned Sessions Judge is ordered to mark para-19 to 27 as expunged and necessary order thereupon be written in the own handwriting.
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