# SHAFHI MOHAMMAD v. THE STATE OF HIMACHAL PRADESH

- **Citation:** [2018] 1 S.C.R. 790
- **Court:** Supreme Court of India
- **Decided:** 2018-01-30
- **Case number:** Criminal Appeal No. 404 of 2009
- **Bench:** Adarsh Kumar Goel, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shafhi-mohammad-v-the-state-of-himachal-pradesh-32845
- **Pages:** 7

## Headnote

Evidence Act, 1872: s.65B(4) - Videography of scene of crime
or scene of recovery during investigation - Electronic evidence -
Admissibility of - Procedural requirement - Held: If the electronic
evidence is authentic and relevant the same certainly be admitted
subject to the court being satisfied about its authenticity and
procedure, for its admissibility may depend on fact situation such
as whether the person producing such evidence is in a position to
furnish certificate under s.65B(4) - A party who is not in possession
of device from which the document is produced cannot be required
to produce certificate under s.65B(4) - The applicability of
requirement of certificate being procedural can be relaxed by Court
wherever interest of justice so justifies - The applicability of
procedural requirement under s.65B(4) of furnishing certificate is
to be applied only when such electronic evidence is produced by a
person who is in a position to produce such certificate being in
control of the said device and not of the opposite party - In a case
where electronic evidence is produced by a party who is not in
possession of a device, applicability of ss.63 and 65 cannot be
held to be excluded - In such case, procedure under the said Sections
can certainly be invoked - If this is not so permitted, it will be denial
of justice to the person who is in possession of authentic evidence/
witness but on account of manner of proving, such document is
kept out of consideration by the court in absence of certificate under
s.65B(4) which party producing cannot possibly secure - Thus,
requirement of certificate under s.65B(4) is not always mandatory -
Information Technology Act, 2000 - ss.2(t), 2(o).
Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015)
7 SCC 178 : [2015] 1 SCR 721;
Ram Singh and Ors.
v. Col. Ram Singh (1985) Supp SCC 611 : [1985] Suppl.
SCR 399 - relied on
790
[2018] 1 S.C.R. 790
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791
Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010)
4 SCC 329 : [2010] 2 SCR 396; Mohd. Ajmal Amir
Kasab v. State of Maharashtra (2012) 9 SCC 1 : [2012]
8 SCR 295; State (NCT of Delhi) v. Navjot Sandhu
(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; Anvar
P.V. v. P.K. Basheer and Ors. (2014) 10 SCC 473:[2014]
11 SCR 399 - referred to
R. v. Maqsud Ali (1965) 2 All ER 464; R. v. Robson
(1972) 2 ALL ER 699 - referred to
Case Law Reference
[1985] Suppl. SCR 399
relied on
Para 3
[2010] 2 SCR 396
referred to
Para 4
[2015] 1 SCR 721
relied on
Para 5
[2012] 8 SCR 295
referred to
Para 5
[2005] 2 Suppl. SCR 79
referred to
Para 5
[2014] 11 SCR 399
referred to
Para 6

## Text

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SUPREME COURT REPORTS
[2018] 1 S.C.R.
SHAFHI MOHAMMAD
v.
THE STATE OF HIMACHAL PRADESH
(Special Leave Petition (Crl.) No.2302 of 2017 )
JANUARY 30, 2018
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
Evidence Act, 1872: s.65B(4) - Videography of scene of crime
or scene of recovery during investigation - Electronic evidence -
Admissibility of - Procedural requirement - Held: If the electronic
evidence is authentic and relevant the same certainly be admitted
subject to the court being satisfied about its authenticity and
procedure, for its admissibility may depend on fact situation such
as whether the person producing such evidence is in a position to
furnish certificate under s.65B(4) - A party who is not in possession
of device from which the document is produced cannot be required
to produce certificate under s.65B(4) - The applicability of
requirement of certificate being procedural can be relaxed by Court
wherever interest of justice so justifies - The applicability of
procedural requirement under s.65B(4) of furnishing certificate is
to be applied only when such electronic evidence is produced by a
person who is in a position to produce such certificate being in
control of the said device and not of the opposite party - In a case
where electronic evidence is produced by a party who is not in
possession of a device, applicability of ss.63 and 65 cannot be
held to be excluded - In such case, procedure under the said Sections
can certainly be invoked - If this is not so permitted, it will be denial
of justice to the person who is in possession of authentic evidence/
witness but on account of manner of proving, such document is
kept out of consideration by the court in absence of certificate under
s.65B(4) which party producing cannot possibly secure - Thus,
requirement of certificate under s.65B(4) is not always mandatory -
Information Technology Act, 2000 - ss.2(t), 2(o).
Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015)
7 SCC 178 : [2015] 1 SCR 721;
Ram Singh and Ors.
v. Col. Ram Singh (1985) Supp SCC 611 : [1985] Suppl.
SCR 399 - relied on
790
[2018] 1 S.C.R. 790
A
B
C
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E
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G
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791
Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010)
4 SCC 329 : [2010] 2 SCR 396; Mohd. Ajmal Amir
Kasab v. State of Maharashtra (2012) 9 SCC 1 : [2012]
8 SCR 295; State (NCT of Delhi) v. Navjot Sandhu
(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; Anvar
P.V. v. P.K. Basheer and Ors. (2014) 10 SCC 473:[2014]
11 SCR 399 - referred to
R. v. Maqsud Ali (1965) 2 All ER 464; R. v. Robson
(1972) 2 ALL ER 699 - referred to
Case Law Reference
[1985] Suppl. SCR 399
relied on
Para 3
[2010] 2 SCR 396
referred to
Para 4
[2015] 1 SCR 721
relied on
Para 5
[2012] 8 SCR 295
referred to
Para 5
[2005] 2 Suppl. SCR 79
referred to
Para 5
[2014] 11 SCR 399
referred to
Para 6
CRIMINAL APPELLATE JURISDICTION : Special Leave
Petition (Criminal) No. 2302 of 2017
From the Judgment and Order dated 26.06.2014 of the High Court
of Himachal Pradesh, Shimla in Criminal Appeal No. 404 of 2009.
WITH
SLP (Crl.) NO. 9431 of 2011
SLP (Crl). NO. 9631-9634 of 2012
Jayant Bhushan, (AC), Ms. Meenakshi Arora .(A.C.), Yashank
Adhyaru, Ms. V. Mohana, Sr. Advs. Ketan Paul, Ms. Reeja Varghese,
Tushar Bhushan, Ms. Ananya Ghosh, Rituj Chopra (For Dr. Arun Mohan,
Sr. Adv. (AC), Ms. E. R. Sumathy, Bharat Bhushan, Ms. Jaspreet Gogia,
Raj Kamal, Ms. Mandakini Singh, Ms. Shirin Khajuria, Ms. Sanskriti
Bhardwaj, Ms. Ayushi Gaur, B.V. Balaram Das, Ms. Asha G. Nair, Zoheb
Hussain, Ms. Rukmini Bobde, Kumar Shashank, B.V. Balaram Das,
Ajay Marwah, Ms. Seema Sharma, Varinder K. Sharma, Karan Thakur,
Vikas Mahajan, Vinod Sharma, Arun Singh, Ms. Anuradha Mutatkar,
SHAFHI MOHAMMAD v. THE STATE OF HIMACHAL
PRADESH
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Ms. Jaspreet Gogia, Raj Kamal, Ms. Mandakini Singh, Bharat Bhushan,
Advs. with them for the appearing parties.
The following Order of the Court was delivered:
O R D E R
SLP(Crl.)No.2302 of 2017 :
1. One of the questions which arose in the course of consideration
of the matter was whether videography of the scene of crime or scene
of recovery during investigation should be necessary to inspire confidence
in the evidence collected.
2. In Order dated 25th April, 2017 statement of Mr. A.N.S.
Nadkarni, learned Additional Solicitor General is recorded to the effect
that videography will help the investigation and was being successfully
used in other countries. He referred to the perceived benefits of "BodyWorn Cameras" in the United States of America and the United Kingdom.
Body-worn cameras act as deterrent against anti-social behaviour and
is also a tool to collect the evidence. It was submitted that new
technological device for collection of evidence are order of the day. He
also referred to the Field Officers' Handbook by the Narcotics Control
Bureau, Ministry of Home Affairs, Government of India. Reference
was also made to Section 54-A of the Cr.P.C. providing for videography
of the identification process and proviso to Section 164(1) Cr.P.C.
providing for audio video recording of confession or statement under the
said provision.
3. Thereafter, it was noted in the Order dated 12th October, 2017,
that the matter was discussed by the Union Home Secretary with the
Chief Secretaries of the States in which a decision was taken to constitute
a Committee of Experts (COE) to facilitate and prepare a road-map for
use of videography in the crime scene and to propose a Standard
Operating Procedure (SOP). However, an apprehension was expressed
about its implementation on account of scarcity of funds, issues of
securing and storage of data and admissibility of evidence. We noted the
suggestion that still-photography may be useful on account of higher
resolution for forensic analysis. Digital cameras can be placed on a mount
on a tripod which may enable rotation and tilting. Secured portals may
be established by which the Investigation Officer can e-mail
photograph(s) taken at the crime scene. Digital Images can be retained
on State's server as permanent record.
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SLP(Crl.)NO.9431 of 2011:
1. Since identical question arose for consideration in this special
leave petition as noted in Order dated 12th October, 2017, we have heard
learned amicus, Mr. Jayant Bhushan, senior advocate, Ms. Meenakshi
Arora, senior advocate, assisted by Ms. Ananya Ghosh, Advocate, on
the question of admissibility of electronic record. We have also heard
Mr. Yashank Adhyaru, learned senior counsel, and Ms. Shirin Khajuria,
learned counsel, appearing for Union of India.
2. An apprehension was expressed on the question of applicability
of conditions under Section 65B(4) of the Evidence Act to the effect
that if a statement was given in evidence, a certificate was required in
terms of the said provision from a person occupying a responsible position
in relation to operation of the relevant device or the management of
relevant activities. It was submitted that if the electronic evidence was
relevant and produced by a person who was not in custody of the device
from which the electronic document was generated, requirement of such
certificate could not be mandatory. It was submitted that Section 65B
of the Evidence Act was a procedural provision to prove relevant
admissible evidence and was intended to supplement the law on the
point by declaring that any information in an electronic record, covered
by the said provision, was to be deemed to be a document and admissible
in any proceedings without further proof of the original. This provision
could not be read in derogation of the existing law on admissibility of
electronic evidence.
3. We have been taken through certain decisions which may be
referred to. In Ram Singh and Others v. Col. Ram Singh, 1985 (Supp)
SCC 611, a Three-Judge Bench considered the said issue. English
Judgments in R. v. Maqsud Ali, (1965) 2 All ER 464, and R. v. Robson,
(1972) 2 ALL ER 699, and American Law as noted in American
Jurisprudence 2d (Vol.29) page 494, were cited with approval to the
effect that it will be wrong to deny to the law of evidence advantages to
be gained by new techniques and new devices, provided the accuracy
of the recording can be proved. Such evidence should always be regarded
with some caution and assessed in the light of all the circumstances of
each case. Electronic evidence was held to be admissible subject to
safeguards adopted by the Court about the authenticity of the same. In
the case of tape-recording it was observed that voice of the speaker
must be duly identified, accuracy of the statement was required to be
SHAFHI MOHAMMAD v. THE STATE OF HIMACHAL
PRADESH
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proved by the maker of the record, possibility of tampering was required
to be ruled out. Reliability of the piece of evidence is certainly a matter
to be determined in the facts and circumstances of a fact situation.
However, threshold admissibility of an electronic evidence cannot be
ruled out on any technicality if the same was relevant.
4. In Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4
SCC 329, the same principle was reiterated. This Court observed that
new techniques and devices are order of the day. Though such devices
are susceptible to tampering, no exhaustive rule could be laid down by
which the admission of such evidence may be judged. Standard of proof
of its authenticity and accuracy has to be more stringent than other
documentary evidence.
5. In Tomaso Bruno and Anr. v. State of Uttar Pradesh, (2015) 7
SCC 178, a Three-Judge Bench observed that advancement of
information technology and scientific temper must pervade the method
of investigation. Electronic evidence was relevant to establish facts.
Scientific and electronic evidence can be a great help to an investigating
agency. Reference was made to the decisions of this Court in Mohd.
Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 and State
(NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.
6. We may, however, also refer to judgment of this Court in Anvar
P.V. v. P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a
Three-Judge Bench. In the said judgment in para 24 it was observed
that electronic evidence by way of primary evidence was covered by
Section 62 of the Evidence Act to which procedure of Section 65B of
the Evidence Act was not admissible. However, for the secondary
evidence, procedure of Section 65B of the Evidence Act was required
to be followed and a contrary view taken in Navjot Sandh (supra) that
secondary evidence of electronic record could be covered under Sections
63 and 65 of the Evidence Act, was not correct. There are, however,
observations in para 14 to the effect that electronic record can be proved
only as per Section 65B of the Evidence Act.
7. Though in view of Three-Judge Bench judgments in Tomaso
Bruno and Ram Singh (supra), it can be safely held that electronic
evidence is admissible and provisions under Sections 65A and 65B of
the Evidence Act are by way of a clarification and are procedural
provisions. If the electronic evidence is authentic and relevant the same
can certainly be admitted subject to the Court being satisfied about its
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authenticity and procedure for its admissibility may depend on fact
situation such as whether the person producing such evidence is in a
position to furnish certificate under Section 65B(h).
8. Sections 65A and 65B of the Evidence Act, 1872 cannot be
held to be a complete code on the subject. In Anvar P.V. (supra), this
Court in para 24 clarified that primary evidence of electronic record
was not covered under Sections 65A and 65B of the Evidence Act.
Primary evidence is the document produced before Court and the
expression "document" is defined in Section 3 of the Evidence Act to
mean any matter expressed or described upon any substance by means
of letters, figures or marks, or by more than one of those means, intended
to be used, or which may be used, for the purpose of recording that
matter.
9. The term "electronic record" is defined in Section 2(t) of the
Information Technology Act, 2000 as follows:
"Electronic record" means data, record or data generated, image
or sound stored, received or sent in an electronic form or micro
film or computer generated micro fiche."
10. Expression "data" is defined in Section 2(o) of the Information
Technology Act as follows.
"Data" means a representation of information, knowledge, facts,
concepts or instructions which are being prepared or have been
prepared in a formalised manner, and is intended to be processed,
is being processed or has been processed in a computer system
or computer network, and may be in any form (including computer
printouts magnetic or optical storage media, punched cards,
punched tapes) or stored internally in the memory of the
computer."
11.The applicability of procedural requirement under Section
65B(4) of the Evidence Act of furnishing certificate is to be applied only
when such electronic evidence is produced by a person who is in a
position to produce such certificate being in control of the said device
and not of the opposite party. In a case where electronic evidence is
produced by a party who is not in possession of a device, applicability of
Sections 63 and 65 of the Evidence Act cannot be held to be excluded.
In such case, procedure under the said Sections can certainly be invoked.
If this is not so permitted, it will be denial of justice to the person who is
SHAFHI MOHAMMAD v. THE STATE OF HIMACHAL
PRADESH
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in possession of authentic evidence/witness but on account of manner
of proving, such document is kept out of consideration by the court in
absence of certificate under Section 65B(4) of the Evidence Act, which
party producing cannot possibly secure. Thus, requirement of certificate
under Section 65B(h) is not always mandatory.
12.Accordingly, we clarify the legal position on the subject on the
admissibility of the electronic evidence, especially by a party who is not
in possession of device from which the document is produced. Such
party cannot be required to produce certificate under Section 65B(4) of
the Evidence Act. The applicability of requirement of certificate being
procedural can be relaxed by Court wherever interest of justice so
justifies.
13.To consider the remaining aspects, including finalisation of the
road-map for use of the videography in the crime scene and the Standard
Operating Procedure (SOP), we adjourn the matter to 13th February,
2018.
14. We place on record our deep appreciation for the valuable
assistance rendered by learned amicus, Mr. Jayant Bhushan, senior
advocate, Ms. Meenakshi Arora, senior advocate, who was assisted by
Ms. Ananya Ghosh, Advocate, as well as by Mr. Yashank Adhyaru,
learned senior counsel, and Ms. Shirin Khajuria, learned counsel,
appearing for Union of India.
Devika Gujral Clarification given.