Sir Bentham, eminent English Jurist, defines “The evidence is any matter of fact, the effect or tendency of which is, to produce in the mind a persuasion, affirmative or dis-affirmative of the existence of some other matter of fact.”
Word “evidence” is derived from Latin word “evidens” or “evidere”, which means to show clearly; to make clear to the sight; to discover clearly; to make plainly certain; to ascertain; to prove. The term ‘Evidence’ in the popular sense means that by which certain facts are established to the satisfaction of persons enquiring into them, but narrowed down by certain legal rules contrived to secure as far as possible its sufficiency and credibility.
Evidence, as used in judicial proceedings has several meanings. The two main senses of the words are: first, the means, apart from argument and inference, whereby the court is informed as to issues of fact as ascertained by the pleadings; secondly, the subject-matter of such means. In a real sense, evidence is that which may be placed before the court in order that it may decide the issues of fact.
Relevancy/Functions of law of evidence
Evidence plays a crucial role in the investigation. A case is as strong as its evidence. It is of foremost importance. Without proof there can be no case in a court of law and without evidence there can be no proof.
The primary function of the law of evidence is to narrow down the matter which comes before the Court to the facts relating to those matters which have a logical probative value in determining the innocence or guilt of the accused. The rules of evidence prevent the court from giving judgments based on illogical conclusions or prejudice.
Every case that comes before a court of law has a web of factual matrix. The nature and cause of the incident are in question in each case. The facts which lead up to the climax will have to be reconstructed before the court, so that the judge is competent to apply the appropriate law to the facts to arrive at a just solution about the rights and liabilities of the parties.
Thus, whenever a judge is called upon to pronounce upon the rights and liabilities of parties arising out of facts, certain information about the facts included must be submitted to him which will create a belief in his mind as to what the real facts are. The means by which facts are proved are governed by law of evidence.
Types of evidence
An ‘electronic record’ is also admissible as the meaning of ‘document’ has been expanded to include them. Electronic record, such as recording by video conferencing, can be produced as evidence in criminal matters.
Oral Evidence and Documentary Evidence
‘Oral Evidence’ means and includes all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. A new Section 22-A inserted into the Evidence Act by the IT Act deals with the relevancy of oral evidence as to the contents of electronic record. Traditionally, a fundamental rule of evidence is that oral evidence may be adduced to prove all facts, except documents, provided always that the oral evidence is direct.
All documents including electronic record produced for the inspection of the Court is called ‘documentary evidence’. A document means any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording the matter. Section 3 of the Evidence Act defines a document which includes the electronic record like video cassettes, tape record, CCTV footage, print-out etc. The Supreme Court in State v. Navjot Sandhu held that the call records between the accused feel under the head of a ‘document’. (video record as evidence)
Primary and Secondary evidence
Primary evidence means that the document itself is produced for the inspection of the court. A computer itself is a primary evidence. While, the copies made from the original by mechanical processes, which in turn provides for the accuracy for the copy is a secondary evidence. In the case of Rakesh Kumar v. State, the court held that a secondary evidence of a document is admissible, when the original is of such a nature as not to be easily movable. The purpose of Section 65-B is to sanctify secondary evidence in electronic form, generated by a computer.
Computer generated electronic records are considered as evidence and are admissible at a trial, if proved in the manner specified by Section 65-B of the evidence act. Computerized operating systems and support systems cannot be moved to the court hence, an electronic record produced therefrom has to be taken in the form of a printout.
Original and Hearsay Evidence
Material objects other than documents, produced for inspection of the Court, are commonly called original evidence. This, when available, is probably the most satisfactory kind of all, since, save for identification or explanation, neither testimony nor inference is relied upon.
Hearsay Evidence is used with reference to written as well as spoken information, and denotes evidence which does not derive its value solely from the witness himself, but depends in part on the competency of other persons also. It is given when a witness recounts a statement made by another person and where the proponent of the evidence assert that what the person, who made the statement, said was true. The Delhi high court in the case of Sanjeev Nanda v The State, observed that it is well established that hearsay evidence is no evidence and thus inadmissible. However, a hearsay evidence in electronic evidence is admissible if it can be corroborated with the help of the authorised person. (relate it with hearsay section)
Electronic Evidence
Add the provisions of electronic evidence (Introduction to Section 65 B here)
Legal framework for Electronic evidence (include all changes brought out by IT Act, 65B full explained)
The introduction of the Information Technology Act in the Indian Parliament led to the introduction of provisions which made the electronic evidence admissible in the court. The main purpose of the Act was to provide legal recognitions for transactions carried out by means of electronic data. The IT Act is primarily based on the United Nations Commission on International Trade Laws (UNCITRAL) Model law on Electronic Commerce and mainly aims to provide the legal infrastructure for e-commerce and digital communication in India. Rapid rise in the field of information and technology in the last decade of 20th Century and the increasing reliance placed upon electronic record by the world at large necessitated the laying down of a law relating to admissibility and proof of electronic record.
Electronic evidence is any data or information created or stored in electric format or on electronic media. It includes emails, text documents, spreadsheets, images and graphics, database files, deleted files, and data back-ups. Electronic evidence may be located on floppy disks, zip disks, hard drives, tape drives, CD-ROMs or DVDs, as well as portable electronic devices such as PDAs and cellular phones.
The term ‘electronic record’ has been given the same meaning as that assigned to it under the IT Act. IT Act provides for “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche”. An electronic record also includes a hard disc in which information was stored or was earlier stored or continues to be stored.
What each subsection speaks of- (may add the addition in other laws from the pdf)
The Information Technology Act 2000 introduced sections 65-A and 65-B in the evidence Act. Section 65-A provides that the contents of the electronic records may be proved in accordance with the provisions of Section 65-B. Section 65-B provides that any information contained in an electronic record, is deemed to be a document and is admissible in evidence without further proof of the original’s production, provided the conditions set out in the section are satisfied.
Section 65-B(1) states that if any information contained in an electronic record produced from a computer has been copied on to an optical or magnetic media, then such electronic record that has been copied ‘shall be deemed to be also a document’ subject to conditions set out in Section 65-B(2) being satisfied.
Section 65-B (2) requires the computer output containing the information to be in regular use for the purpose used. The information derived from the computer-output was ‘regularly fed into the computer in the ordinary course of the said activity.’ During the material part of the period, the computer must be operating properly and did not affect the record or accuracy of its contents. The information contained in the record should be derived from the information fed into the computer in the ordinary course.
The electronic evidence must be produced along with a certificate which identifies the electronic record containing the statement and describes the manner in which it was produced, giving the particulars of the device involved in the production of that record. It is signed by a person occupying a responsible official position in relation to the operation of the relevant device.
History of the admissibility of electronic evidence in india and world
(Add about 65B, 65A, 70-90Apresumptions raised)
-Is Electronic Evidence admissible under the Indian Law
Yes no both the judgments, pre and post the it amendment, reasoning why /why not
-Requirements for being admissible (guidelines in short)
-What all is admissible and how (guidelines in short)
Whether the e-evidence was admissible before IT act in india (case law), land mark cases, first case where the need arose
The Court of Appeal in R. v. Wood, a chemical analysis was conducted on metal in order to trace the origin of the metals. This was done by a computer operated by chemists. The computer printout was treated as a real evidence and not as a hearsay evidence
Further in the case of Castle v. Cross, the prosecution sought to rely on a print-out of an automatic breath-testing device, which was a computer. The court held that the print-out was real evidence. It laid down the principle of Presumption. In the absence of evidence to the contrary, the courts will presume that the mechanical instruments were in order at the material time.
In R. v. Minor, Justice Steyn held that if computer output is considered to be inadmissible, much crime will in practice be immune from prosecution. The computer record was ruled to be hearsay and, therefore, was not relevant by itself. Hence, in order to admit such an evidence the testimony of the witness must corroborate with the evidence adduced before the Court.
In order for an electronic evidence to be admissible in the Indian courts, the evidence must be made to comply with the requisites mentioned under Section 65-B. The conditions of admissibility must be proved beyond reasonable doubt if the document is tendered by the prosecution, but on the balance of probabilities if tendered by the defence.
(all prerequisites mentioned under 65B)A statement produced under Section 65-B as an evidence, should be accompanied by a certificate which should identify the electronic record containing the statement and describe the manner in which it was produced. The statement should be signed by a person occupying a responsible official position in relation to the operation of the relevant activities. Such statement shall be evidence of the matter stated in the certificate.
Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.
Things which can be admitted
Video Conferencing
Indian Courts have been of the view that in the interest of justice of delay and to avoid unnecessary delays it is imperative to resort to video conferencing under Section 65-B of the Act. The court had admitted the video conferencing for the first time in Praful B. Desai case.
In the instant case, the court held that Section 273 of the CrPC provides for the dispensation from personal attendance as it contemplates constructive evidence. Thus, actual presence is not a must. The Court allows the use of electronic video conferencing for examination of the witnesses as it facilitates the Court and avoids delay of justice. In allowing such a prayer the Court will first of all consider whether linkage of such facility will be available between two places or not. Necessary precautions must be taken to both as to the identity of the witnesses and accuracy of the equipment used for the purpose.
In the case of State of Maharashtra v. Mohd. Ajmal Amir Kasab, the court allowed the prosecution to examine the witness though video conferencing for security purposes.
Video cassette and Tape recording
Video Cassettes and Tape Recording can be admitted as evidence subject to the conditions enlisted under Section 65-B being accomplished.
While handling the question of admitting the video CD as an evidence, the Apex Court held that “it would be wrong to deny to the law of evidence advantages to be gained by new technology and new devices, provided the accuracy of the recording can be proved and the voices recorded are properly identified. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.”
The Supreme Court has listed down a number principles to consider while considering the authenticity of the tape recordings. Where tape recorded conversation was nether immediately filed in Court nor was sealed as required by law, transcription of the tape recorded conversation was not produced, tape recorded conversation was held not reliable.
The Supreme Court has made it clear that a Tape recorded evidence conversation is admissible provided the conversation is relevant to them matters in issue, there is identification of the voice and the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. The time, place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified.
The time gap between retention and actual production of re-writable media can create serious doubts of its authenticity, in such cases intermediate officer handling the exhibit must testify in order to prove its authenticity.
It must be sealed at the earliest point of time and not opened except under the orders of the court. Tape recording can be legal evidence by way of corroborating the statements of a person who deposes that the other speaker and he carried on that conversation or even of the statement of a person who may depose that he overheard the conversation between the two persons and what they actually stated had been tape recorded.
In an interesting case dealt by the High Court of Allahabad in the matter of Moninder Singh Pandher and Surendra Koli v. State of U.P., the High Court in accordance to S.4 of the Act held that a confessional statement recorded in video on the basis of S. 65 B is admissible.
Photographs
Justice Willes has said that “the photograph was admissible because it is only a visible representation of the image or impression made upon the minds of the witnesses by the sight of the person or the object it represents; and it is therefore in reality only another species of the evidence which persons give of identity when they speak merely from memory.” Photographs have always been regarded as documents and hence admissible under 65-A and 65-B of the Act. The mere requirement that a photograph be admitted as evidence is that it is proved by the person who took it is sufficient guarantee of its authenticity.
Emails
In the US, e-mails have been admitted but strictly on the grounds of authentication with regard to their origin. In order to prove the origin of an email, the IP address is to be matched against the IP address of the senders’ computer. However, the confirmation of an IP address still is not a fool proof method to verify the authenticity of the email. In the case of R. v. Mawji (Rizwan), it was held that it was not necessary to authenticate the email by providing evidence of the IP address but a mere corroboration of facts from the testimony of the witnesses is enough to verify the authenticity of the email in question.
Intercepted Phone calls/ Call Records (a few more case laws on same point but different view)
Call Records have been admitted by the court as electronic evidence in the Parliament attack case only if complied with all the prerequisites mentioned under the section. The production of certificate is one of the sine qua non condition for an evidence to be admissible and the court had waived off this condition but it was later over ruled. In the case of Navjot sandhu, Electronic record produced there from has to be taken in the form of a print-out. Thus, it has been held that call records can be proved by adducing secondary evidence in terms of S 63 of the Evidence Act by complying with the conditions specified in sub sections (2) or (4) of the act.
Admissibility and reliability of call records have been accepted by Indian Courts. Add the case of Navjot Sandhu AIR 2005 SC 3820
ATM
A lot of ecommerce business has boomed and hence banking frauds has also increased. The ATM transaction are also admissible as electronic evidence. In P. Padmanabh v. Syndicate Bank, the extract of the transaction in the ATM machine was disbelieved by the Trial Court Judge, for want of compliance with the provisions of S. 65B(4). Though as per section 4 of the Bankers Book Evidence Act such entries are accepted as primary evidence, it does not amount that there is a presumption of the correctness of the entries and balance in favour of the bank.
Challenges involved with the Electronic Evidence
Authenticity Issue (Machine in order, origin, forgery, which sub-section deals with it)
The term ‘authentic’ is used to describe whether a document or data are genuine, or that the document ‘matches the claims made about it’. The technical focus of proving the authenticity of a digital object is to have checks and balances in place to demonstrate the history of how the data have been managed, which leads to the assertion that the data have not been modified, replaced or corrupted and must, therefore, be original. However, Rothenberg is of the view that an unbroken chain of custodianship does not in itself prove that records have not been corrupted, there would be no logical need to establish that custodianship had been maintained.
Proving the authenticity of a digital object means providing sufficient evidence to convince an adjudicator that the object has been retrieved is a faithful representation of what is claimed to be the ‘original’, or a reliable representation of the object that was relied upon by the originator. The “function” of the best evidence rule is to ensure the reliability, that is to say the integrity, of the record to be produced in evidence. Edward J. Imwinkelried in his book Evidentiary Foundations has set out the tests when considering electronic records as a form of scientific evidence which has been relied upon by the US Supreme Court in the above mentioned case.
Machine in order
Forged email
Subsection dealing with it
Authenticity claims