The advent of social media has ushered in an era of vlogging. Social Media,
being inextricably linked to our contemporary lives has become indispensably
crucial for keeping in touch with the rest of the world. The growing role of
social media in disseminating stories at lightning speed has emanated various
questions pertaining to the credence & credibility of voluntarily-disclosed
events. Recently, the abhorrence of the crime committed in Udaipur has
shocked the conscience of the nation.
The knowledge of the commission of the crime came into the public domain through
a video posted on social media, wherein the accused persons not only allegedly
beheaded a man but also recorded the encircling events, and in the aftermath,
one of the accused in the video broodingly disclosed the commission of the
offence by both the accused in the video. Though this incident raises serious
apprehensions over the crumbling state of Rule of Law in our society, it also
implores revisiting the admissibility of confessional statements made by a
co-accused in the light of the law pertaining to the admissibility of electronic
The law of Evidence in India is governed by the Indian Evidence Act, 1872. The
evidentiary jurisprudence qua confessions is trite. Confessions are either the
direct admission of the commission of an offence or at any rate admission of
substantially all the facts which constitute the offence. Mere suggestions or
inferences of commission of crime cannot be considered a confession.
Furthermore, a confession in order to be admissible must be made voluntarily,
meaning thereby that it must be a statement made of free will and accord of the
S. 24 of the Evidence Act interdicts a confession made by threat, inducement or
any promise. Even the procedural law pertaining to recording of the confessions,
to prevent the malice under S. 24 of the Evidence Act, mandates that an accused
making confessional statement must be informed of the consequences that shall
ensue and if he intends to proceed regardless, only then may his statements be
As regards the confessions made by a co-accused, S. 10 of the Evidence Act
provides that where there are reasonable grounds to believe that two or more
persons have conspired together to commit an offence, things said or done by any
of such persons in reference to their common intention, any time after such
thought was first entertained by any one of them is a relevant fact against all
of them to both prove the existence of a conspiracy, as well as to show that any
such person(s) were party to it.
The purpose underlying the above section is the concept of Agency. Though it
is a redundant principle of Criminal jurisprudence that one person is ordinarily
not made liable for the acts of another, S. 10 of the Evidence Act carves out an
exception to provide that, once it is established that there exists an identity
of interest, or, a community of purpose between certain persons, any act done,
or statement made by one co-conspirator is held to be the act or statement of
other conspirators if such act or statement has any connection to the object of
However, to attract S. 10, there must exist prima facie evidence affording
reasonable grounds that lead to the inference that such persons have been
involved in a conspiracy. If the above condition is satisfied, only then can
the confessional statement made by a co-accused be admitted as evidence during
the course of trial. Though the principles regarding confessions made by a
co-accused are settled, the admissibility of confessions made through electronic
evidence remains at a relatively nascent stage.
Admissibility of Electronic Evidence
Electronic Records have been defined in S. 2(1)(t) of the Information Technology
Act and means "data, record or data generated, images or sound stored, received
or sent in an electronic form, or microfilm or computer-generated microfiche".
Under S. 3 of the Evidence Act, evidence includes inter alia electronic records
that are produced for the inspection of the Court.
In tune with the ever-growing reliance on technology, S. 65A & S. 65B were
introduced in the Evidence Act by the amending Act of 2000, with the intent to
lay a comprehensive code for the use of electronic records as a material piece
of evidence without compromising the sanctity of such evidence.
Resultantly, any electronic evidence to be able to be exhibited as admissible
evidence before the Court must be in compliance of S. 65B of the Evidence
Act.For any electronic evidence to be admissible in the Court of law, it is
required to satisfy the 4 conditions stipulated in S. 65B(2) that are:
- The information must be created by a person who is in regular &
legitimate use of the computer resource;
- Information generated must be supplied to the computer on a daily basis;
- During the concerned period, the computer must be in working order & if
it is out of order for a brief period then it shall not be of such nature to
affect the electronic record or accuracy of its content;
- Data generated must reproduce or be derived from information fed into
the computer during its ordinary course of business.
The abovementioned conditions under S. 65B(2) have been included to eliminate
the probability of tampering or falsification of evidence. A further safeguard
has been included under S. 65B(4) which provides that the person in possession
of the source computer from which such electronic record is sought to be
obtained, is required to sign a certificate and state that the contents of the
concerned record are believed to be true to the best of his knowledge.
Though the jurisprudence regards the requirement of certificate under s. 65B(4)
became scattered over the time, the law as it stands now, provides that a
certificate under S. 65B(4) is a sine qua non for the admissibility of
electronic evidence but only in cases where electronic evidence is being
tendered as secondary evidence.
S. 65B owes its inception to S. 5 of the Civil Evidence Act (UK), which by the
time was adopted in India, had already been repealed in UK on Law Commissions'
recommendation, stating that S. 5 as it stood was outdated due to the
developments in computer technology & a different regime for electronic evidence
was no longer required.
Video recording in Indian Jurisprudence holds the same evidentiary value as an
audio recording. Media files generated through mobile phones can also be
tendered as primary evidence provided that the mobile phone and the memory card
(if any) used to store that file is submitted before the Court.
While the requirements for the admissibility of electronic evidence have been
settled by the Hon'ble Supreme Court, the difficulties posing the admissibility
of a confession made without complying with the procedural law, on social media,
still remain to be authoritatively explored.
As regards the international jurisprudence on the subject, social media posts
have been recognized as material evidence to adjudicate contentious issues.
The Australian High Court in the case of Tofilau Vs R
determining whether conviction could be based on confession recorded in
electronic form, addressed a glaring difficulty in the admissibility of an
Out-of-the-Court confession and held that the principle of "exclusionary
discretion" of out-of-court-confessions is primarily based upon the fairness
of using such a confession, rather than the mode of obtaining such evidence.
The Court further held that the relevance of the seriousness of offence being
investigated is an essential factor while exercising the principle of
exclusionary discretion of evidence that is not obtained unlawfully. In
other words, if the evidence tendered is not obtained unlawfully, gravity of the
offence committed is a crucial factor while exercising the discretionary
jurisdiction of exclusion of evidence.
The abovementioned statutory provisions and precedents are reflective of
significance that electronic evidence is obtaining in the law of Evidence. To
effectively enhance the potential of electronic evidence as material evidence
upon which a prosecution may be sustained, the long-standing principles of
evidentiary law & their applicability to the growing involvement of social media
in disclosing the commission of criminal offences ought to be assertively
Written By: Gauri Pande
- C.B.I. Vs V.C. Shukla (1998) 3 SCC 410
- Mohammed Khalid Vs State of West Bengal (2002) 7 SCC 334
- S. 164 CrPC
- S. 10 Evidence Act
- Sardul Singh Caveeshar & Ors. Vs State of Bombay 1958 SCR 161
- Badri Rai Vs State of Bihar 1959 SCR 1141
- Bhagwan Swamp Vs State of Maharashtra AIR 1965 SC 682
- Statement of Object and Reasons, Information Technology Act, 2000
- Anvar P.V Vs P.K. Basheer & Ors.(2014) 10 SCC 473
- Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal (2020) 7 SCC 1
- Alagaapuram R. Mohanraj & Others Versus Tamil Nadu Legislative Assembly
Rep. by its Secretary & Another (2016) 6 SCC 82
- State (Nct Of Delhi) vs. Firoz Khan & Anr.2016 SCC OnLine Del 685
- Zimmerman v. Weis Markets, Inc., PICS Case No. 11-0932 (2011), Romano v.
Steelcase Inc., 907 N.Y.S.2d 650 (2010)
- Tofilau v R (2007) 231 CLR 396;  HCA 39; BC200707276