RIYAJUDDIN vs STATE GOVT OF NCT OF DELHI
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision :09.10.2023
+ CRL.M.C. 7284/2023
RIYAJUDDIN ….. Petitioner
Through: Mr. M.N.Dudeja and Mr. Aditya Mishra, Advocates.
versus
STATE GOVT OF NCT OF DELHI ….. Respondent
Through: Mr. Amit Ahlawat, APP for the State with SI Manish, P.S.Welcome.
CORAM:
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR
RAJNISH BHATNAGAR, J. (ORAL)
CRL.M.A. 27179/2023 (Exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CRL.M.C. 7284/2023
3. The petitioner has preferred the present petition under Section 482 Cr.P.C for setting aside the order dated 20.07.2023 passed by the learned ASJ-04, Shahdhara, Karkardooma Courts, Delhi, in Sessions Case No. 208/2019, by virtue of which two applications, one under Section 311 Cr.P.C. moved by the petitioner for recalling of PW 2, Roshan Jahan, and other application for placing on record two pen drives containing certain recording have been dismissed.
4. Issue notice. Learned APP appears on advance notice, and accepts notice.
5. It is submitted by learned counsel for the petitioner that PW 2 is a material witness for the just decision of this case and she is a planted witness of the incident as she was not present at the spot, i.e., Kabristan at the time of the alleged incident as Muslim woman never visits Kabristan as per the custom. It is further submitted by the learned counsel for the petitioner that PW 2 has not been cross-examined properly and only suggestions have been given, moreover, the manner in which PW 2 has been cross-examined has greatly prejudice the case of the petitioner and it is to be kept in mind that the petitioner is an accused under Section 302 IPC which entails punishment up to death. Therefore, a just and fair opportunity should be given to the petitioner for the cross-examination of PW 2.
6. It is further submitted by learned counsel for the petitioner that on 11.01.2019, one video recording of Kabristan went viral and petitioners brother Firoz received the said video on his mobile phone no. 8800656593 through WhatsApp and the same has been retrieved in a pen drive which has been filed in the Court. It is further submitted that PW 2 is to be confronted with the said video recording to falsify her presence at the time of the incident.
7. Learned counsel for the petitioner has also drawn the attention of this Court to the testimony of PW 2 to bring home the point that she needs to be further cross-examined as this witness has been cross-examined in a very casual manner and only suggestions have been put to him.
8. On the other hand, it is submitted by the learned APP for the state that there is no infirmity in the impugned order and proper opportunity has been granted to the petitioner to cross-examine PW 2. It is further submitted by the learned APP that learned Trial Court has rightly refused to take pen drive on record and to confront PW 2 with the same during her further cross-examination. It is further submitted by learned APP that change of counsel cannot be a ground to permit the newly engaged counsel to recall the witness for further cross-examination.
9. I have perused the cross-examination of PW 2 conducted on behalf of the petitioner. The petitioner, in the instant case, is an accused under Section 302 IPC which entails maximum punishment in the IPC. The perusal of the cross-examination shows that the counsel who has cross-examined PW 2 on behalf of the petitioner has only put 6 or 7 suggestions to the witness. As per the prosecution, PW 2 is an eye witness to the murder of her husband so she is the most material witness of the prosecution. This witness has not been cross-examined on all material facts stated by her in her examination-in-chief. So looking into the manner of the cross-examination and also the fact that the witness has not been cross-examined on even a single material fact given by her in her examination-in-chief, therefore, in my opinion this is a fit case to afford an opportunity to the petitioner to cross-examine PW 2. Therefore, the learned trial court is directed to afford one opportunity to the petitioner to cross-examine PW 2 subject to her availability.
10. The petitioner has also prayed that the petitioner be allowed to put video clips to PW 2 during her cross-examination. Petitioner had also filed an application before the learned Trial Court seeking permission for placing on record two pen drives containing certain recordings. The learned Trial court while dismissing the said application of the petitioner vide impugned order dated 20.07.2023 has observed as follows:-
Another application has also been moved along with this application for taking on record two pen drives, one containing the video clip of Kabristan and the other contains the CCTV footage showing the police officials of PS Welcome taking away the accused on 11.01.2019. These pen drives have actually been filed in support of application under Section 311 Cr.P.C as in the application under Section 311 Cr.P.C it is stated that the witness PW-2 is to be cross- examined on the basis of video recordings received on whatsapp on the mobile phone of Firoz who is brother of accused and on the basis of CCTV footage of the house of accused.
As per the Certificate under Section 65 B of Indian Evidence Act filed along with application, Firoz has stated that said video recording was received by him in mobile phone in between 11.01.2019 to 15.01.2019. The evidence of PW2 was recorded on 07.12.2021. The video recording thus, was already available with the brother of the accused at the time of examination of PW2 and it is not the case of the accused that the brother of the accused had received the said recording after the examination of the witness PW-2.
The court has perused the said recording which is contained in the pen drive marked as ‘K’ by the Ld. Counsel for the accused. The said recording is only of 31 seconds in which the deceased can be seen lying on the ground and many public persons were present there. Merely because the PW2 is not seen in that footage of 31 seconds, it does not establishes that she was not present at the spot. Moreover, the said footage is a whatsapp forward admittedly. The maker of the said video is not known. It is also not stated in the application from which number Firoz had received the said video on whatsapp. As the source of the said video itself is not established and had not been stated in the application under Section 311 Cr.PC, PW-2 cannot be recalled for further cross-examination on the basis of such whatsapp forwarded videos. There is nothing on record also to suggest that the said video is authentic or in continuity and has not been tempered with, edited or morphed. Source and authenticity are two hallmarks on which any digital evidence is to be tested upon before relying upon the same.
In the present case, both source and authenticity of the recording of 31 seconds is doubtful and hence, the said video recording and pen drive containing the said recording cannot be taken on record nor PW-2 can be recalled for cross-examination on this aspect.
The next is the pen drive containing the video recording of the CCTV footage of the house of accused. The contents of the said pen drive has also been perused by the court. The said pen drive contains video recordings of four video clips of 34 seconds, 2:26 minutes, 2:51 minutes and 4:43 minutes respectively. The Certificate under Section 65 B of Indian Evidence Act of Mohd. Zahid has been filed in support of the said CCTV footage. In the Certificate, it is mentioned that the DVR is installed in his room and is in his custody and from DVR he has retrieved data of 11.01.2019 in accompanying pen drive. However, when the video recordings were perused they were not directly showing the CCTV footage rather CCTV footage was played on a screen and it seems that recording of the screen was done from a mobile phone. Therefore, it is doubtful that data from the DVR have been directly retrieved in the pen drive. The source and authenticity of this recordings in such circumstances is also doubtful. Moreover, this CCTV footage in the DVR was also available with the accused persons since 2019. The accused persons thus, had ample opportunity to put these recordings to PW-2 at the time of her cross-examination on 07.12.2021. As the source and authenticity of the recordings contained in the two pen drives is doubtful therefore, the same cannot be permitted to be taken on record and there is no merit in the application for recalling of PW-2 on the basis of the said video recordings contained in the pen drives.
11. A perusal of the above said observations made by the learned Trial Court shows that the learned Trial Court has given cogent reasons for not allowing the petitioner to place on record above said two pen drives for the purpose of confronting PW 2 with the same. I find no infirmity in the impugned order passed by learned Trial Court as far as this part of the order is concerned. This part of the impugned order dated 20.07.2023 is, therefore, upheld.
12. The petition stands disposed of in the aforesaid terms.
RAJNISH BHATNAGAR, J
OCTOBER 9, 2023
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