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12. PW3 Sh. Mohd. Hanif deposed that there was CCTV camera installed at his house. Police seized DVR from his house vide seizure memo Ex. PW3/A. PW3 identified and exhibited on record the DVR model no. TT7708, 8CH, digital video recorder bearing serial no. 429201504280168 RoHS as Ex. PW3/P1 which was taken by police official. PW3 was cross examined on behalf of accused.

13. PW4 Sh. Chaman Ali identified the dead body of deceased vide statement Ex. PW4/A. PW4 also signed on the application of IO for the postmortem which is Ex. PW4/B. PW4 further exhibited on record the memo vide which the dead body of deceased was handed over to Javed, the brother of deceased as Ex. PW4/C. PW4 further deposed that the accused was invited to his son's birthday party on 15.03.2017 and he reached there at FIR no. 122/17 State v. Aneesh Page no. 6 of 28 10-10.30 PM after his children went asleep. PW4 further deposed that since after dinner it was already late the accused slept in his house and in the morning he went back where his wife was not found and police arrested him. As this witness deposed contrary to the case of prosecution, he was cross examined by the Ld. Additional PP for the state, with the permission of the court. PW4 was not cross examined on behalf of accused.

46. Another important piece of evidence relied upon by the prosecution is the CCTV footage that shows the accused carrying the body of the deceased in a sack and dropping the same at a place from where the dead body was recovered in the next morning. PW3 Mohd. Hanif, PW18 SI Raj Kumar and PW19 Insp. Kuldeep Singh are the three witnesses examined by the prosecution in this regard.

47. PW3 Mohd. Hanif is the person in whose house the CCTV camera was installed and the police collected and seized the DVR Ex. PW3/P1 vide seizure memo Ex. PW3/A. This witness has identified the DVR in the court during his deposition but during his cross examination he stated that the police officials did not play any CCTV footage through the DVR nor did they ask him to play the footage of DVR. It is clear from the testimony of PW3 that he had not seen the CCTV footage in the DVR nor the DVR was played in the court during his testimony to ascertain the existence of CCTV footage relied upon by the prosecution.

48. PW18 SI Raj Kumar is another witness to the recovery of DVR vide seizure memo Ex. PW3/A. This witness also exhibited on record the photographs taken from the CCTV footage showing the accused carrying the dead body in a gunny bag as Ex. P15 (colly). PW18 also exhibited on record the pen FIR no. 122/17 State v. Aneesh Page no. 23 of 28 drive containing CCTV footage as Ex. PX3 and the same was played in the court whereby PW18 identified the accused leaving the gunny bag having dead body in it at the place of recovery of dead body. Ld. Defence counsel raised an argument that the DVR has not been played in the court to ascertain the CCTV footage and also that there is no report from the forensic department to the effect affirming untempered and unaltered DVR. It is also pointed out that no certificate u/s 65B of Indian Evidence Act has been adduced in evidence so the pen drive being secondary evidence cannot be said to be proved in accordance to law. Hence, the electronic evidence cannot be read in evidence.

50. It is also relevant to note that the primary source of electronic evidence i.e. DVR Ex. PW3/P1 has not been played in the court and none of the prosecution witness has identified the FIR no. 122/17 State v. Aneesh Page no. 24 of 28 CCTV footage in the said DVR. It is also admitted by PW19 Insp. Kuldeep Singh during his cross examination that the FSL department could not transfer or store the data in separate CD or pen drive from the DVR. Meaning thereby, the data from the DVR could not be retrieved by the FSL. In nutshell, the discussion above shows that the CCTV footage and the photographs taken from the CCTV footage has not been proved in accordance to the provisions of law. When the accused disputed the genuineness of CCTV footage and the DVR itself, the prosecution was supposed to get the forensic examination of the electronic evidence to rule out any tampering or manipulation in CCTV footage but it is not done so in this case leaving a strong doubt in the genuineness of the CCTV footage. Ld. Defence counsel has referred to the judgments passed by Hon'ble Supreme Court of India in case titled as Shafi Mohammad v. The State of Himachal Pradesh, SLP Leave Petition (CRL.) no. 2302 of 2017 and Naresh @ Nehru v. The State of Haryana, Criminal Appeal no. 1786 of 2023. Both the judgments referred above directly applies to the situation in hand. Therefore, the electronic evidence with respect to the CCTV footage lead in this case cannot be relied upon.