CCTV footage: A silent witness

By Prachi Agarwal

Abstract

This article deals with some basic concept of identification of an accused person. Firstly, the author here is trying to elaborate on the importance of identification of accused person with reference to Section 9 of the Indian Evidence Act, 1872 (hereinafter referred to as “IEA”). Sometimes the crimes are committed under the cover of darkness where there is no one to establish the identity of the accused person, in such situation the commission of crime can be proved by circumstantial evidences. One such evidence is CCTV footage. Secondly, this article critically analyse with the help of various case laws, the status of CCTV footage and can a case be established on the basis of single piece of CCTV alone? Thirdly, in order to avoid confusion and misconception, this article further addresses the process of admissibility of electronic evidence in Court in light of section 65B of the IEA.

Keywords

Section 9 of IEA, Section 65B of IEA, CCTV Footage, Test Identification Parade, Circumstantial Evidence.

Identity of the accused

One of the most followed methods to establish the identity of the accused person is by way of “test identification parade (hereinafter referred as TIP)”. Evidence by way of TIP is taken as per Section 9 of the IEA. When the witness knows and recognizes the accused there is no need of TIP, in other words when the FIR is registered against known/named accused person there is no need to go through the process of conducting TIP, however when the crime is committed by unknown, TIP is used as a tool to test the accuracy of the witness to identify the unknown person whom the witness had seen at the place of occurrence on the time of occurrence.

Procedure of conducting TIP

The TIP is to be conducted without any delay as the main purpose of the TIP is to identify the accused person before the memory of the witness fades. The unexplained delay in conducting TIP may be fatal to the case of the prosecution. The TIP is to be conducted by the investigating agency in presence of the magistrate, it is through these identification parades the investigating agency ascertains whether the suspect of the crime is the real culprit or not. After the identification of the accused, it is relevant that the witness identifies the accused person before the Court as well and it is then the TIP becomes substantive evidence. In plethora of judgment, the Apex Court has observed that “without prior TIP, first time identification in the Court is considered as a very weak evidence”

The credibility of the TIP

It depends upon various factors such as time of the occurrence; whether the incident happened at day or at night, time with the eye witness to identify the accused; whether they had little time or enough time to see the accused person, whether the face of the accused was covered or not, etc. In the case of State of Maharashtra v Syed Umar Sayed Abbas & Ors., the incident of firing occurred in broad day light, however not much time was there with the witnesses to clearly see the accused and there was delay in TIP, hence the Court acquitted the accused on the ground that it is highly doubtful whether the eye witness could have remembered the face of the accused after such a long time. In yet, another case Raman Bhai Naran Bhai Patel & Ors. v State of Gujarat, Apex Court dismissed the appeal and upheld the conviction on the observation that:- “offence was committed in broad daylight and hence eye witness could easily remember and identify the accused person.”

The above mentioned case laws are just a brief overview of how the opinion of Court differs on the basis of circumstances. There can be no straight jacket formula for admissibility and non-admissibility of TIP, all depends upon the facts and circumstances of each case. 

CCTV Footage Recording:

CCTV cameras are found almost everywhere nowadays, be it on roads, outside localities, hotels, parks, you name it and you can find them there. Since the introduction of CCTV from the past few decades, it has played a huge role in helping investigating agencies in solving crimes. Where eye witness is not available and CCTV footage is there it has been used as an instrument in solving crime; does this mean that CCTV footage is equal to testimony of eye witness? There are various troubles with testimony of eye witness and it is not always reliable, like problem related to the memory of the eye witness, witness being bought by the culprit and thereby his or her turning hostile, witness may be an interested witness and he may be lying, etc. All these circumstances make the evidence of the witness unreliable and leads to acquittal of the alleged accused person. Similarly, CCTV footage have its own problems, like the image quality of the footage, CCTV does not record the sound, blurry footage, whether CCTV camera was in proper working condition or not, etc. These are just few example of problems with CCTV and with eye witnesses and it is presumably safe to say that CCTV footage recording is also not fully reliable and it cannot be blindly relied upon without corroborative evidence.

Status of CCTV footage as evidence

When a crime is committed, the accused person is convicted on the basis of evidence. The status of the CCTV footage can be discussed with reference to two different scenario: –

1. When the sole available evidence is CCTV recording, can it be used as a substantive evidence to prove actus – reus at the instance of the accused?

2. What will be the status of CCTV footage when the recording and the testimony of eye witness are not corroborating with each other?

In both the situations, if the CCTV footage if proper and clear and the origin of the CCTV is proved beyond reasonable doubt, it will be enough to establish the actus – reus at the instance of the accused person. At the global level also, Ld. Courts have observed the relevancy and importance of CCTV in evidence during trial. In Gubinas and Radavicius v HM Advocate, High Court at Aberdeen, Scotland, in para 59 mentioned about the genuineness of CCTV Footage and observed that even if all the witnesses say one thing and CCTV shows something else, then the electronic evidence will be relied upon and not the ocular evidence given by the witnesses. This observation made by the Court makes it clear that the content of CCTV footage is considered sufficient to establish the commission of crime and for identification of accused person. In a case of Tomaso Bruno & Anr. v State of U.P., murder of one Italian National was committed in Varanasi and two other Italian Nationals were convicted for the murder. The Apex Court observed that CCTV footage is a strong piece of evidence which could have established the crime and failure on part of prosecution to produce the CCTV footage raises serious doubt about prosecution’s case. In a case of K. Ramajayam @ Appu v The Inspector of Police, CCTV cameras were installed in the shop which clearly showed that accused entered the shop, stole jewels and committed murder. The face of the accused was identifiable from the footage. The accused was arrested who confessed the commission of crime and the clothes which the accused was wearing at the time of crime were also recovered. The CCTV recording along with the photograph of the accused was sent for examination to Forensic Science Department. In this case other than CCTV, there was other incriminating evidence and hence the accused was convicted and sentenced to life imprisonment. 

Procedure for admissibility of CCTV footage in evidence

Whenever any electronic evidence is used as an evidence, it is mandatory to prove the content of electronic record in accordance with Section 65B of the IEA. The primary purpose of Section 65B is to sanctify proof by secondary evidence. Recently, Apex Court in the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, revisited section 65B of the IEA and clarified the air by settling the conflicted position of Section 65B. The Court overruled the judgment in Shafhi Mohammad v State of Himachal Pradesh and held that certificate required under section 65B(4) is a condition precedent to admissibility of evidence by way of electronic record, as held by a three judge bench in Anvar P.V. v P.K. Basheer. The Ld. Court in its recent judgment of Arjun Panditrao’s also clarified that the certificate under section 64B (4) is unnecessary if the original document itself is produced before the Court for inspection. Hence, the position as per requirement of the certificate is clear as of now.

In case of CCTV, cameras captures image and it is converted to digital through Digital Video Recorder (hereinafter referred as DVR). The DVR is an electronic record as it stores data in electronic form. If the DVR is itself brought to the Court, it will be deemed as a primary evidence under section 62 of the IEA as the original document is itself produced before the Court for inspection and there will be no need to comply with the conditions of Section 65B (4) of the IEA. However, if there are a large number of cameras installed and the information is digitally stored in huge servers, it is not possible to bring the entire set up before the Court. In such case the only available option is to copy the data from the huge server to a CD or a USB and then produce it before the Court. Such USB and CD are not the primary evidence and thus compliance of section 65B (4) is mandatory. A certificate is to be obtained from the person who is in charge of the server. The main purpose of certificate is to establish the proper working condition of the computer from where the electronic record is produced before the Court for inspection, so that it can be established that the content has not been ill-treated or tampered with due to fault in the computer. The certificate has not been made a requisite to prove the truthfulness of the content of the computer generated record.

Conclusion:

In today’s era, CCTV cameras are installed almost everywhere to keep a check on crime. The investigating agencies have time and again taken help of CCTV footage in solving crimes and apprehending the culprits. The CCTV shows a true picture of the incidents and due to this authenticity, the Courts are highly relying on its credibility. Since the addition of section 65B in the IEA, the Supreme Court has given many decisions regarding the importance of admissibility of electronic evidence. When the CCTV footage is clear, the origin of the footage is established and it has complied with the requisites of Section 65B of the IEA, it can be used as best evidence. A corroborated case can be established on the basis of the single piece of the CCTV alone. The CCTV evidence cannot be said to be equivalent to the testimony of witness as the testimony of eye witnesses may differ from each other and they have the tendency and capacity to change their statement. However, the CCTV footage of adequate quality shows the actual occurrence of the crime and the inference of crime and identification of accused can be drawn from such evidence. If 10 people see an event and give the details of the event, undoubtedly the statement of all the 10 persons will differ in some way or another, but CCTV footage does not suffer from fallacies which makes it superior to human testimony. Even if the CCTV footage is a stand-alone evidence, its value cannot be undermined and it may be regarded as best evidence for the identification of the accused person. If there are eye witnesses also, then CCTV may either assist or supplement the testimony of such witnesses.

[ The author is an Advocate at Jharkhand High Court ]