LAW OF EVIDENCE.

ASSIGNMENT ON
(Electronic Evidence in the Indian Evidence Act)
(Assignment towards the fulfillment of Continuous Assessment III in the subject of The Law Of
Evidence}

Submitted By: Submitted To:

Widaphi Lyngdoh Mr. Aditya Pratap

Roll No. 1602 Faculty of Law

(B.A. LL.B.) National Law University Jodhpur

Section - B

National Law University, Jodhpur

Winter Semester (January – May 2019)

Evidence in its broadest sense includes everything that is used to determine or demonstrate
the truth of an assertion. Giving or procuring evidence is the process of using those things
that are either presumed to be true, or were themselves proven via evidence, to demonstrate
an assertion's truth. Unwritten Evidence is the evidence given orally, in court or by
deposition.1

Section 3 of The Indian Evidence Act, defines evidence in the following words-

Evidence means and includes-

1. All the statements which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under enquiry; such statements are
called Oral evidence;

2. All the documents including electronic records produced for the inspection of
the court; such documents are called documentary evidence;

Though evidence falling under the first category holds as much importance as documentary
evidence, in this writing we are going to focus on Documentary evidence specifically
electronic Evidence.

Documents means all documents produced before the court of law and for the inspection of
documents produced. Public documents and private documents are the two main kinds of
documents. In both procedural laws i.e. civil procedure code and criminal procedure code
includes the producing of documents for the evidence in their respective provisions. Further
the evidence is divided into primary and secondary evidence. Documentary evidence is a part
of primary evidence which produced before the court of law in first.2

1
US legal Dictionary.
2
International Journal of Pure and Applied Mathematics Volume 120 No. 5 2018, 1073-1082 ISSN: 1314-3395
(on-line version) url: http://www.acadpubl.eu/hub/ Special Issue http://www.acadpubl.eu/hub/ 1073
 WHAT IS ELECTRONIC EVIDENCE?

Data (comprising the output of analogue devices or data in digital format) that is
manipulated, stored or communicated by any man-made device, computer or computer
system or transmitted over a communication system, that has the potential to make the factual
account of either party more probable or less probable than it would be without the evidence3

This definition has three elements. First, it is intended to include all forms of evidence that is
created, manipulated or stored in a product that can, in its widest meaning, be considered a
computer, excluding for the time being the human brain. Second, it aims to include the
various forms of devices by which data can be stored or transmitted, including analogue
devices that produce an output. Ideally, this definition will include any form of device,
whether it is a computer as we presently understand the meaning of a computer; telephone
systems, wireless telecommunications systems and networks, such as the Internet; and
computer systems that are embedded into a device, such as mobile telephones, smart cards
and navigation systems. The third element restricts the data to information that is relevant to
the process by which a dispute, whatever the nature of the disagreement, is decided by an
adjudicator, whatever the form and level the adjudication takes. This part of the definition
includes one aspect of admissibility - relevance only - but does not use ‘admissibility’ in
itself as a defining criteria, because some evidence will be admissible but excluded by the
adjudicator within the remit of their authority, or inadmissible for reasons that have nothing
to do with the nature of the evidence - for instance because of the way it was collected. The
last criteria, however, restricts the definition of electronic evidence to those items offered by
the parties as part of the fact finding process.

Regarding the documentary evidence, in Section 59, for the words “Content of documents”
the words “Content of documents or electronic records” have been substituted and Section
65A & 65B were inserted to incorporate the admissibility of electronic evidence.

Section 65 of the Evidence Act sets out the situations in which primary evidence of the
document need not be produced, and secondary evidence - as listed in section 63 of the
Evidence Act - can be offered. This includes situations when the original document

i. Is in hostile possession.
ii. Or has been proved by the prejudiced party itself or any of its representatives.

3
Electronic Evidence and its Challenges by Dr. Swaroopa Dholam
iii. Is lost or destroyed.
iv. Cannot be easily moved, i.e. physically brought to the court. V
v. Is a public document of the state.
vi. Can be proved by certified copies when the law narrowly permits; and
vii. Is a collection of several documents

The IT Act amended section 59 of the Evidence Act, instead of submitting electronic records
to the test of secondary evidence - which, for documents, is contained in sections 63 and 65,
it inserted two new evidentiary rules for electronic records in the Evidence Act: section 65A
and section 65B. The intention of the legislature is to introduce the specific provisions which
has its origin to the technical nature of the evidence particularly as the evidence in the
electronic form cannot be produced in the court of law owing to the size of computer/server,
residing in the machine language and thus, requiring the interpreter to read the same

Section 65A lays down the contents of electronic records may be proved with the provisions
laid in the Section 65B.

Section 65A of the Evidence Act creates special law for electronic evidence - The contents of
electronic records may be proved in accordance with the provisions of section 65B. This
section performs the same function for electronic records that section 61 does for
documentary evidence: it creates a separate procedure, distinct from the simple procedure for
oral evidence, to ensure that the adduction of electronic records obeys the hearsay rule. It also
secures other interests, such as the authenticity of the technology and the sanctity of the
information retrieval procedure. But section 65A is further distinguished because it is a
special law that stands apart from the documentary evidence procedure in sections 63 and 65.

What are the sources of electronic evidence and its records?

  Electronic evidence is the information that is stored, recorded or copied in a computer.

a) Information produced by the person who is having a lawful control over the computer’s
use.
b) The electronic record contained must be regularly fed onto the computer.
c) The computer must be in proper use or in the accuracy of records,
d) Recording must reproduce the information properly and such information fed intothe
computer in the ordinary course of activity.
Section 65B lays down the conditions which have been laid down above, it states that
electronic record must contain a genuine statement and it must be signed by the officer
incharge of the management of related activities

The primary purpose is to sanctify proof by secondary evidence. This facility of proof by
secondary evidence would apply to any computer output, such output being deemed as a
document . A computer output is a deemed document for the purpose of proof. Primary
evidence

Where the information was processed or fed into the computer on inter linked computers or
one computer after the other in succession all the computers so used shall be treated as one
single computer.

Section 65B also lays down that for the purpose of evidence, a certificate identifying the
electronic records containing the statement and describing the manner in which it was
produced by a computer and satisfying the conditions mentioned above and signed by a
officer in charge of the operation or management of the related activities shall be the
evidence of any matter stated in the certificate it shall be sufficient for the matter to be stated
to the best of the knowledge and belief of the person stating .

Any information to be taken to be supplied to a computer, if it is done in any appropriate

To understand more about the topic at hand let us make use of a few cases.

1. Anvar P.V. v. P.K. Basheer4.

The court said that any documentary evidence by way of an electronic record under the
Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the
procedure prescribed under Section 65B. Section 65B deals with the admissibility of the
electronic record. The purpose of these provisions is to sanctify secondary evidence in
electronic form, generated by a computer. It may be noted that the Section starts with a non
obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any
information contained in an electronic record which is printed on a paper, stored, recorded or
copied in optical or magnetic media produced by a computer shall be deemed to be a
document only if the conditions mentioned under sub-Section (2) are satisfied, without
further proof or production of the original. The very admissibility of such a document, i.e.,
electronic record which is called as computer output, depends on the satisfaction of the four
conditions under Section 65B(2).

It is further clarified that the person need only to state in the certificate that the same is to the
best of his knowledge and belief. Most importantly, such a certificate must accompany the
electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD),
pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the
same is produced in evidence.

All these safeguards are taken to ensure the source and authenticity, which are the two
hallmarks pertaining to electronic record sought to be used as evidence. Electronic records
being more susceptible to tampering, alteration, transposition, excision, etc. without such
safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

4
Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473.
 2. Sonu v. State of Haryana5.

Despite the decision in Anwar, being rendered by a 3 judge bench, a division bench of the
Supreme Court in this  case rejected the reliance placed on Anvar by the accused, and thereby
denied him an opportunity to raise an objection with regard to inadmissibility of electronic
evidence for the want of certification as per section 65-B.

The Court after placing reliance on a few decisions of the Supreme Court, divided the
objection with regard to admissibility of a document into two categories- a) The first
objection is when that the document is per se inadmissible. b) The second is when the
objection is directed not on the admissibility of document in evidence, but towards
the method or mode of proof of evidence. It was held that the objection with regard to mode
or method of proof has to be raised at the time of marking the document as exhibit, and not
later. Whereas, the issue of admissibility of a document which is inherently inadmissible, for
instance, statements under Section 161 Code of Criminal Procedure 1973 (CrPC,) can be
taken up at an appellate stage as well, as such an issue strikes at the foundation of the
document. The mode or method of proof is procedural in nature, and if such objection is not
taken at trial, it cannot taken at the appellate stage.

In laying down the above principle, the court relied on the decision in RVE Venkatachala
Gounder6, that the crucial test for the purpose of determining when an omission to object
becomes fatal is, whether the objection if taken at the appropriate stage, would have enabled
the party tendering the evidence to cure the defect and render a regular mode of proof.

Applying the above principle, the Supreme Court in Sonu held that the defect of relying on
the CDRs without the appropriate certificate, is a defect in the mode or method of proof, as
CDRs are not per se inadmissible. Hence, it held that such an objection cannot be allowed to
be raised at the appellate stage. This is because, had such an objection been taken at the trial
stage, the court could have given an opportunity to the prosecution to rectify the defect,
which will be denied at this stage if the case of the accused is accepted.

5
Sonu v. State of Haryana (2017) 8 SCC 570
6
RVE Venkatachala Gounder (2003) 8 SCC 752
 3. Tomaso Bruno v. State of UP7.

The court first notes the nature of the case and the relevance of the CCTV footage. Towards
this the court notes that the case of the prosecution is largely circumstantial. There are no eye
witnesses and medical evidence is limited to citing the cause of death as asphyxiation.

Further the conviction of the appellants was based on the testimony of the Hotel Manager and
the Investigating Officer of the police, who stated that they saw no ingress into the hotel
room of the deceased. This was based on viewing the CCTV cameras installed in the
common areas of the hotel. However, the CCTV footage by itself was not adduced as
evidence by the prosecution. Hence, in any case the court reasons that the CCTV footage
constituted the best evidence.

The effect of non-production of not adducing the best evidence, is viewed by the Court as
material suppression which leads to an adverse inference under Section 114(g) of the
Evidence Act. It is important to note that the reasoning of the Court is not limited to the
absence of CCTV footage. It also involves the inconsistencies in the testimonies of the
prosecution witnesses and the medical examination.

On the basis of the above the Court in Paragraph 42 states that it has ignored the importance
of best evidence i.e. CCTV camera in the instant case and also have not noticed the absence
of symptoms of strangulation in the medical reports. And are of the view that the
circumstances and the evidence adduced by the prosecution do not form a complete chain
pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and
the conviction of the appellants is liable to be set aside.

4. Kundan Singh v. State8.

The Court said that controversy had arisen whether certificate under sub-section (4) of
section 65B must be issued simultaneously with the production of the computer output a
certificate under section 65B can be issued and tendered when the computer output itself is
tendered to be admitted as evidence in the court .. Court further discussed the judgement of
Anwar P.V v P.K Basheer and Others, where it was stated that certificate must accompany
7
Tomaso Bruno v. State of UP, (2015) 3 SCC (Cri) 54
8
Kundan Singh v. State, 2015 SCC Online Del 13647
the electronic record like computer printout, Compact Disc (CD), video, vcd, pen drive etc.
All these safeguard are taken to ensure the source and authenticity which are the two
hallmarks pertaining to electronic record sought to be used as evidence.

Court finally concluded that in cases where huge information is stored across various servers
and which are taken to be proved years later so it may not be possible to procure the
evidence/certificate issued by persons in charge of the computer system at that time. In such
case people who have subsequently taken the charge can issue certificate u/s 65B of Indian
Evidence Act in relation to CCTV Records/CDR Etc. No merit and appeal dismissed.

For the purpose of admissibility of electronic record, a three prong testis important:

1.Document in question –is an electronic record [as defined under S.2(1)(t) of the IT Act,
2000],

2.Produced by a computer [as defined under S.2(1)(i) of the IT Act, 2000], and

3.Accompanied by a certificate, fulfilling the conditions laid down S.65 (B)(2)-(B)(4).

5. National Lawyers Campaign for Judicial Transparency v. UOI9

The Delhi High Court held that any document received as forward on WhatsApp cannot be
treated as document without the Original or copy of the Original under Section 3 of The
Indian Evidence Act, 1872. Justice Sanjeev Sachdeva made the above observation.

6. Shahfi Mohammad v. State of Himachal Pradesh10

It was held that under S.65 B, computer generated electronic records is an admissible
evidence at trial if proved in manner specified by section.

Electronic record in the form of a print out…..compliance with sub-section Sub-section (1)
and (2) of section 65 B is enough to make admissible and prove electronic records. This
conclusion flows out, even from the language of sub-section (4).

9
National Lawyers Campaign for Judicial Transparency v. UOI, 2017 SCC Online Del 8564
10
Shahfi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801
In order to settle the legal position in relation to requirement of certificate under Section
65B(4) of the Evidence Act for admissibility of electronic evidence delved into relevant
precedents and made the following key observations in the case:

That it will be wrong to deny to the law of evidence advantages to be gained by new
techniques and new devices, provided the accuracy of the recording can be proved. Such
evidence should always be regarded with some caution and assessed in the light of all the
circumstances of each case.

• That admissibility of an electronic evidence cannot be ruled out on any technicality if

• That new techniques and devices are order of the day. Though such devices are
susceptible to tampering, no exhaustive rule could be laid down by which the admission of
such evidence may be judged.

The Bench also made reference to the case of Tomaso Bruno and Anr. v. State of Uttar
Pradesh[1] that observed that advancement of information technology and scientific temper
must pervade the method of investigation. Electronic evidence was relevant to establish facts.
Scientific and electronic evidence can be a great help to an investigating agency.

That if the electronic evidence is authentic and relevant the same can certainly be admitted
subject to the Court being satisfied about its authenticity and procedure for its admissibility
may depend on fact situation such as whether the person producing such evidence is in a
position to furnish certificate under Section 65B(h).

That the applicability of procedural requirement under Section 65B(4) of the Evidence Act of
furnishing certificate is to be applied only when such electronic evidence is produced by a
person who is in a position to produce such certificate being in control of the said device and
not of the opposite party. In a case where electronic evidence is produced by a party who is
not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot
be held to be excluded. That it will be denial of justice to not permit a person who is in
possession of authentic evidence/witness but on account of manner of proving, such
document is kept out of consideration by the court in absence of certificate under Section
65B(4) of the Evidence Act , which party producing cannot possibly secure. Thus,
requirement of certificate under Section 65B(h) is not always mandatory.
Legal position on the subject on the admissibility of the electronic evidence, especially by a
party who is not in possession of device from which the document is produced. Such party
cannot be required to produce certificate under Section 65B(4) of the Evidence Act .

That the applicability of requirement of certificate being procedural can be relaxed by Court
wherever interest of justice so justifies

CONCLUSION

The admissibility of the secondary electronic evidence has to be adjudged within the
parameters of Section 65B of Evidence Act and the proposition of the law settled in the
recent judgment of the Apex Court and various other High Courts as discussed above. The
proposition is clear and explicit that if the secondary electronic evidence is without a
certificate u/s 65B of Evidence Act, it is not admissible and any opinion of the forensic expert
and the deposition of the witness in the court of law cannot be looked into by the court.
However, there are few gaps which are still unresolved as what would be the fate of the
secondary electronic evidence seized from the accused wherein, the certificate u/s 65B of
Evidence Act cannot be taken and the accused cannot be made witness against himself as it
would be violative of the Article 19 of the Constitution of India.