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4. The learned counsel for the appellant Adv. Sai Pooja contended that the prosecution case entirely rests upon 2025:KER:24851 circumstantial evidence and the prosecution has failed to prove each of the circumstances relied on by it. She argued that the entire case of the prosecution hinges upon the alleged CCTV visuals recovered from the scene by the investigating officer, but the same has not been proved as required by law. She contended that the DVD's including Exbt.P25, which allegedly contains the mirror image of the visuals in MO-4 DVR and which has been relied on by the trial court, was not accompanied with an obligatory certificate under Section 65B and hence, is not at all admissible in evidence. She relied on the decisions in Anwar v. Basheer(2014 KHC 4602) and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020 4 KHC 101) in support of her contentions. She argued that the evidence of PW5 identifying the accused is not believable and no Test Identification parade has been conducted to corroborate his evidence. She relied on the decisions in Rameshwar Singh v. State of J & K (1971 KHC 2025:KER:24851

A conspectus of the prosecution evidence

6. PW1 is the son of the owner of the hotel by name 'Indraprastha'. He deposed that on 27/11/2019 at about 5.30 am, PW3 called him and informed him that a lady was seen lying dead in front of their hotel. He, along with his father, went there and saw a lady lying in a pool of blood, with cut injuries on her hand, face and head. Nearby, a black shawl and a hoe smeared with blood was lying. The CCTV camera was found broken. He went inside the shop and opened the CCTV monitor and saw that at about 1.08 am, a person was seen dragging a lady to the front of his shop and hitting her using a hoe. Thereafter, the person committed rape upon the lady and damaged the CCTV. He identified the person, whom he saw in the visuals, as the accused in the dock. Thereafter, he along with his father went to the police 2025:KER:24851 station and gave Ext.P1 FIS. He also identified the weapon as MO1, shawl as MO2, CCTV camera as MO3, the DVR and charger as MO4 series. He also signed in Ext.P2 mahazar prepared by the police while seizing MO4 series.

22. The next question to be considered is whether it is the accused who has committed the rape and murder of deceased Deepa. Admittedly, in the present case there are no eye witnesses 2025:KER:24851 to the incident. The prosecution is heavily relying upon the visuals collected from the CCTV, which is located near the place of the occurrence, to inculpate the accused in this crime. The DVR of the CCTV, which was kept in the premises, in which the events were recorded, were seized by the investigating officer and produced before the court and marked as MO4. It is also to be seen that the mirror image allegedly copied to a DVD from the hard disk in the DVR, have been played before the trial court to enable the witnesses to identify the accused. The original document/primary evidence which is available (the DVR containing the hard disk), has not been brought into evidence during trial for reasons best known to the trial court and the prosecution. Instead, it appears that DVR has been forwarded to the Forensic Science Laboratory and a copy of the relevant portion from it has been copied to a DVD and has been adduced as evidence. The proceedings also reveal that the DVD, which was played in the trial court and used 2025:KER:24851 for identifying the accused by the witnesses till PW25 was examined, is not the DVD which was played and marked as Ext.P25 through PW25. It appears that the DVD in which the video clipping was copied from the DVR, and which was played in the trial court till the examination of PW25, did not 'work' when the same was attempted to be played when PW25 was in the box. An application was then filed by the prosecution to direct the expert to make another copy from the data retained in the office which was allowed by the Trial Court. The expert then went back and came with a new DVD and the same was marked as Ext.P25 through the witness. Anyway, it is very pertinent to note that there is no Section 65B certification for both the DVDs and there is nothing available on record to show as to what happened to the DVD which was initially produced and the same was run in the presence of the witnesses.

2025:KER:24851 report is evidentiary material in its own right, typically presenting the results of forensic analysis. A Section 293 Cr.PC report being admissible, simply means that the report can be read as evidence of what it states and it does not automatically validate any attached electronic media. For instance, if the FSL report says "I retrieved video file ZYZ from the DVR onto a DVD", the report is proof that the analyst made such retrieval. But the video recording(the DVD) still has to be independently admissible to be viewed and relied upon as evidence of the facts depicted. The expert's statement, however authoritative, is not the same as the statutory certificate that permits the court to treat the DVD as evidence of the video's contents. The situation would have been different if in the present case, the prosecution has adduced primary evidence by exhibiting and proving the contents of the original electronic record itself, which is the DVR marked as MO4. At the sake of repetition, we may say that we are at a loss to 2025:KER:24851 understand why the prosecution and the trial court had forgone the primary evidence available and have made attempts to rely upon secondary evidence and that too, without proper certification. In the light of the afore discussions, the only conclusion we can reach is that no reliance can be placed upon the secondary evidence in the form of DVDs, the contents of which have been relied upon by the trial court for convicting the accused.