CCTV Footage, WhatsApp Chats and a Hostile Witness
In a murder trial under Section 103 BNS, the prosecution relies on CCTV footage from a private shop showing the accused entering the lane at 9:12 p.m. The investigating officer downloaded the footage onto a pen drive on 10 January 2024. The shop owner formatted the original DVR on 15 January. No certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, was filed with the chargesheet. The IO now seeks to produce a certificate at the stage of marking the pen drive. The defence objects. The prosecution also examines PW-3, an eyewitness, who turns hostile and says he saw nothing. The public prosecutor cross-examines him with the leave of the court. The defence argues that his entire testimony must be discarded. The prosecution further seeks to prove a WhatsApp message allegedly sent by the accused from his mobile phone; no certificate is produced for that either.
1. Is the CCTV footage admissible without the Section 63 BSA certificate? Can the certificate be produced now?
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Section 63 BSA makes a certificate mandatory for admissibility of an electronic record when it is produced as a computer output. The pen drive is a copy; the original DVR has been formatted. Without the certificate, the footage is inadmissible. The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal held that the certificate may be produced at any stage before the trial concludes, and the court can permit it. But the certificate must satisfy Section 63(4): identify the electronic record, describe the manner of production, give particulars of the device, and be signed by the responsible person. The IO can issue it if he is the person in charge of the device. The court should allow production only if the conditions are met; the formatted original goes to weight, not admissibility. If no valid certificate is produced, the footage must be excluded.
2. What is the evidentiary value of PW-3’s hostile testimony?
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Section 148 BSA permits the party calling a witness to cross-examine him with the court’s leave. The evidence of a hostile witness is not wholly wiped out. The court may accept the part that is corroborated by other reliable evidence and reject the rest. PW-3’s earlier statement under Section 180 BNSS can be used only to contradict him; it is not substantive evidence. The prosecution cannot treat his previous statement as proof of the event. The court should scrutinise his testimony along with the CCTV, if admitted, and other evidence. The defence’s contention that the entire testimony must be discarded is too broad.
3. Can the WhatsApp message be admitted without a certificate?
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A WhatsApp message is an electronic record. It must satisfy Section 63 BSA. The prosecution must produce a certificate from the person in charge of the device or the service provider, as the case may be. Additionally, authenticity of the sender must be proved; mere production of a screenshot is not enough. Without the certificate, the message is inadmissible. The court may permit a certificate at a later stage, but it cannot relax the statutory requirement. If the certificate is produced and the sender is identified, the message may be read as evidence, subject to the usual rule that it is only one circumstance in the chain.