Electronic Document Must Be Produced In Entirety To Be Admissible Even If Supported By Certificate U/S 65B Evidence Act: Kerala High Court

Justice Gopinath P. referred to Sections 65A and 65B of the Evidence Act and observed:

“redacted portions of a conversation cannot be admissible in evidence even if they are supported by a certificate under Section 65B of the Evidence Act...It is evident from the provisions referred to above that any information contained in an electronic record printed on paper, stored, recorded, or copied in optical or magnetic media produced by a computer shall be deemed a document. Consequently, all the provisions applicable to a document shall also apply to an electronic record printed on paper or stored in any other form such as pen drives, discs, magnetic tape and so on. While it may be permissible for a person relying on a document to mark specific portions of it, it is beyond cavil that a document must be produced in its entirety.”

The judge was considering an appeal preferred by a person against his conviction and sentence for committing offences under Sections 376(2)(k), 376(2)(l), 376(2)(n), 376 [Rape] of the Indian Penal Code and Sections 4 r/w 3(a), 6 r/w 5(j)(i), 6 r/w 5(l), 6 r/w 5(k), 6 r/w 5(p), 10 r/w 9(j)(i), 10 r/w 9(l), 10 r/w 9(p), 12 r/w 11(ii), 12 r/w 11(iii) of the Protection of Children from Sexual Offences Act, 2012. The substantive sentences imposed was directed to run concurrently.

The brief facts are this: The appellant was a physiotherapist, who was initially employed in KIMS hospital and later, set up his own independent practice as 'TIMS'. The victim in the case was a patient, who was suffering some physical disabilities and being treated by the appellant.

The prosecution allegation was that the appellant sexually abused the victim for a period of about 5 years from 2011 to 2019, at the beginning of which the victim was a minor aged 16 years.

Before the High Court, the appellant contended that the relationship between the appellant and victim was consensual, and began only after she attained majority. He relied on certain messages and videos sent by the victim while he was an under-trial prisoner. He also argued that the Medical Board, which conducted an examination of the victim in 2016, had not noted any observations regarding sexual abuse. Further, he also refers to the statement of the victim before the Magistrate, where she had confirmed that the abuse happened in 2018-2019, after she became a major.

The appellant also took a contention that KIMS hospital was responsible for initiating this false case against him due to its grudge against him for taking some patients to his private practice. He said that PW2 psychologist, to whom the abuse was first revealed, was attached to KIMS.

It was also urged that since the victim suffered from medical conditions like psychosis, epilepsy, anxiety and depression, she was having hallucinations and saying the abuse started from 2014. It was also submitted that the victim was not a 'sterling' witness.

The public prosecutor, on the other hand, submitted that the evidence of victim, PW2 and PW3 gives out consistent proof that the abuse happened from 2014 till 2019. The profession rivalry argument was countered saying that the POCSO Act imposes a duty on every one to report about the happening of child sexual abuse.

Regarding the victim's statement before the Magistrate, the prosecutor pointed out that the victim was referring to certain specific acts and there is no contradiction from her deposition during trial. She stated that minor embellishment regarding dates cannot be used to acquit the appellant.

The Court noted that the voir dire test was conducted on the victim to find out about her competency to testify. According to the testimony, she was abused multiple times by the appellant and when PW2, who was giving her remedial therapy, asked about her excessive phone usage, she disclosed about abuse. PW2 reported to PW3 head of department and both of them had told the victim's mother, leading to a complaint.

The Court also took note of the fact that the victim did not change her testimony during cross-examination. It felt that there was no need to doubt the victim's testimony for being inconsistent since she maintained the same stance while giving statement before the Magistrate also.

Looking at the testimonies given by the parents of the victim (PWs 5, 6), PWs 2 and 3, the same was found to 'corroborate' with the victim's account of sexual abuse. Moreover, it also felt that corroborating evidence is needed only if the victim's evidence was found to unreliable.

The Court also checked whether the quality of the victim's testimony is such that it can be accepted in whole. After referring to various decisions in this regard, the Court remarked that except for the denial of having sent messages to the appellant while he was on bail, the victim's testimony was clear, lucid and free from embellishment.

It observed:

“The testimony of the victim has not been inconsistent with the case of the prosecution. No part of her testimony would make her a 'wholly unreliable' witness. On the other hand, her evidence appears to be 'wholly reliable' and on principles culled out from the decisions…I find that PW1 is a sterling witness and that her testimony can be safely relied upon.”

It further went on to say that there was no material to prove that KIMS hospital imposed this false case on the appellant during to professional rivalry.

Next, the Court turned to the evidence tendered by the defence, including the testimonies of DWs 1 to 3 and appellant himself as DW4. DW1, who was the female colleague of the appellant, deposed that she used to accompany him to the victim's house during sessions but could not recall the dates and times that she did. She was found to be an interested witness.

DW2 was a clinical psychologist who deposed that victim's medical condition would make her subject to hallucinations. However, since he had never treated the victim, his testimony was also not found to be reliable.

DW3 was a person acquainted with the appellant and had testified that he had witnessed the appellant visiting the victim's house for sessions. During cross-examination, he admitted that he used to contact the appellant frequently and he was also deemed an interested witness.

Considering the digital evidence produced by the appellant, D2 series and D3 mobile phone, the Court noted that the conversions produced were edited, and not full versions. It opined that the trial court rightly held that the redacted portions of a conversion cannot be admissible in evidence even if supported by certificate as per Section 65B.

It remarked that failure to produce the conversation in its entirety would result in it being understood in a completely different way.

The appellant also took the argument that the victim had expressed her willingness to keeping in touch with him during cross-examination. She had stated that she does not hold any grudge towards him. The Court felt that this indicated that she had developed a liking towards him but since the abuse, proven by the prosecution witnesses, happened while she was a minor, consent is immaterial.

The Court, thus, dismissed the appeal, and confirmed the conviction and sentence imposed by the trial.

Case No: Crl.A. No. 2389 of 2024

Case Title: Shinoj v. State of Kerala

Citation: 2025 LiveLaw (Ker) 654

Counsel for the appellant: Sreejith S. Nair, V.S.Thoshin, Satheesh Mohanan, Mahima, Akhil Suseendran, Sekhar G. Thampi, Abhishek Nair M.R., Sasthamangalam S. Ajithkumar (Sr.)

Counsel for the respondent: Seena C. – Public Prosecutor

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