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Admissibility of Digital Evidence

Evidence is a corroboration of a statement placed before the court in a manner which undisputedly establishes it as a fact. It may be presented through witnesses, material objects or electronic records[1] which show a trail that can reliably indicate linkage of the offence to the probable offender. Witnesses may relay an account of what they saw or heard. Material Objects may be examined in a forensic lab and can be traced back to the offender. Electronic Records are however not so easy to obtain and decipher and many modalities occur when they are placed on the stand to examine their reliability.

Owing to its intangible nature Digital evidence can be encoded and encrypted and therefore, they must be decoded before the court could proceed to accept or reject them. Being sensitive, electronic records can be altered very easily and any alteration that may take place can render them inadmissible. Tracing the electronic records to the offender also poses a task, the information passes through innumerable channels and to follow it back may constitute violations of privacy of the intermediaries involved, which the court may not readily grant and accept. However, with all the setbacks involved with the presentation and admission of digital evidence they constitute an inextricable part of the modern justice system wherein often reliance is placed on CCTV footages, Call Records, Geo-Location etc. to determine various aspects involved in  criminal and civil offences.

S.65, Indian Evidence Act, 2000

In the digital era where most communications, transactions take place through the online mediums the importance of Electronic Records has been realised for proving offences and subsequently through amendments s.65 has been expanded to give sanction to Electronic Records as Digital evidence.

S.65- A and s. 65 B lay down criterion for admissibility of Electronic Records as Digital Evidence:

  1. The evidence is produced out of a computer in regular use for any lawful activity during the period
  2. Information of the kind produced as evidence was regularly fed into the computer as a part of daily activities.
  3. The operation of the computer does not compromise the accuracy of the Electronic record so produced.
Reliance on secondary electronic evidence can only be placed if a certificate is produced with the electronic record being posed as evidence[2]. For primary evidence in electronic record no such certificate is required to be produced.[3]

The sensitivity of these evidences places them under strict observation by the court to ensure originality. Time and again, the courts have reiterated that evidences gained by new techniques and devices cannot be refused as evidence, provided that their accuracy can be proved.[4]

Taking note of technological advances, the Supreme Court had observed in R.M. Malkani v. State of Maharashtra[5] that tape-recorded conversation is admissible in evidence provided that the conversation is relevant to the matters in issue; that there is identification of the voice and that the accuracy of the conversation is proved by eliminating the possibility of erasing the tape-recorded version. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the IEA.

Subject to s. 65 digital evidence must be produced without any human intervention and electronic records shall be considered as documents, only if the computer which produced the record had been regularly in use, the information fed into the computer was part of the regular use of the computer and the computer had been operating properly.[6]

In State vs. Mohd. Afzal And Ors, the court held that Computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. In State vs. Navjyot Sandhu[7] the court held that merely because a certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65.

The Supreme Courtís finding in Navjot Sandhu case raised uncomfortable questions about the integrity of prosecution evidence, especially in trials related to national security or in high-profile cases of political importance. The stateís investigation of the Parliament Attacks was shoddy with respect to the interception of telephone calls. The Supreme Courtís judgment notes in prs. 148, 153, and 154 that the law and procedure of wiretaps was violated in several ways.

In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, [8]in this case the offence of demanding bribe was sought to be proved by producing a tape-recorded conversation which the Supreme Court found to be inadmissible. In fact, the Directorate of Forensic Science Laboratories, State of Maharashtra had stated in its report that the conversation is not in audible condition and, hence, the same was not considered for spectrographic analysis.

The learned counsel for the respondents submitted that the conversation had been translated and the same had been verified by the panch witnesses. Admittedly, the panch witnesses had not heard the conversation, since they were not present in the room. The Supreme Court held that as the voice recorder was itself not subjected to analysis, there was no point in placing reliance on the translated version, having no source for authenticity of the translation.

Handling and the subsequent product of decoded evidence is significant to ensure admissibility in the court, it must establish in a reliable and cogent manner the statements produced and must be in accordance with the provisions mentioned in the Evidence and the Information Technology Act.

Digital Evidences though hard to obtain and trace are the need of the era and reliance on them has been placed time and again to prove facts in civil and criminal cases.

  1. The Information Technology Act, 2000 s. 2(1)(t).
  2. The Indian Evidence Act, 1872 s.65 B (4).
  3. Anvar P.V. v. P. K. Basheer, (2014) 10 SCC 473.
  4. Ram Singh v. Col Ram Singh, 1985 (Supp) SCC 611, Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329.
  5. 1973 1 SCC 471.
  6. Kurian Joseph, Admissibility of Electronic Evidence, (2016) 5 SCC J-1.
  7. State vs. Navjyot Sandhu AIR 2005 SC 3820.
  8. (2015) 3 SCC 123.

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