Electronic Evidence bnder Indian Evidence Act, 1872

Evidence is interpreted as anything that is presented in support of any pronouncement. The evidence can be classified into two types-

• Intellectual Evidence
• Empirical Evidence

Legally, the rules of evidence as defined under the Indian Evidence Act, 1872, govern the type of evidence accepted by the law.

The Indian Evidence Act, 1872 was enacted under the British Raj by the Imperial Legislative Council, having 11 chapters and 167 sections.

According to the Indian Evidence Act, 1872, Section 3 defines evidence as-

“Evidence” means and includes–

1. all statements which the Court permits or requires to be made before it by witnessess, concerning matters of facts under inquiry; such statements are called oral evidence;
2. all documents, including electronic records, produced for the inspection of the Court; such documents are called documentary evidence.”

The types of evidence under the INDIAN EVIDENCE ACT are defined below:

1. Direct Evidence-This evidence is considered essential evidence for concluding the essence of the argument. It is firm evidence that directly validates or confounds the matter of the subject.
2. Circumstantial Evidence-It cites evidence proving the verity of the subject by furnishing other facts that are indirect to the issue and then demonstrating its pertinence.
3. Analogical Evidence-It refers to the underused evidence and is brought into the scene at the end moment, saving the person when one lacks the stats to refer or prove any matter of quote.
4. Anecdotal Evidence-Refers to evidence-based on the person’s observation of the world, helping to introduce and build up a specific topic. These observations should be supported with certain statistical evidence to ensure their validity.
5. Character Evidence-Character evidence is an essential sort of evidence used to determine a person’s guilt.
6. Demonstrative Evidence-It refers to available evidence to a judge in justice and is neither hearsay nor credible evidence, including charts, diagrams, presentations, and representations of a witness’s testimony.
7. Documentary Evidence-In Section 3 of the Indian Evidence Act, the term “document” is defined. Any matter depicted or represented on any substance employing letters, figures, or markings, or by more than one method capable of documenting the point, is referred to as documentary evidence.
8. Exculpatory Evidence-The proof helps and acquits the defendant, assisting them in establishing their innocence, thereby demonstrating their integrity.
9. Forensic Evidence-This evidence aids in examining and analyzing objects that are not visible to the human eye and depends mainly on the crime being investigated.
10. Hearsay Evidence-They are the evidence that is neither heard nor viewed by the witnesses personally.
11. Physical Evidence-Refers to the evidence found at the place of crime and includes fingerprints, marks of cut, tools, handprints, footprints, etc.
12. Prima Facie Evidence-The evidence establishing a fact but is in question for their existence is referred to as prima facie evidence.
13. Statistical Evidence-They are the data searched by people or examined to prove a specific fact.
14. Testimonial Evidence-It refers to evidence used to prove a particular point by testimony to the courts. Such testimony may either be spoken or formal written statements.
15. Judicial Evidence-It refers to the evidence that is received by the attorney which proves or disproves any matter.
16. Non-Judicial Evidence-Non-judicial evidence refers to the confessions of the accused outside the court in the presence of any person.
17. Primary Evidence-Section 62 defines preliminary evidence as the top class of evidence. They are an original document that needs to be submitted before the Court for inspection.
18. Secondary Evidence-Section 63 defines the secondary evidence as to the inferior type. Hence, the defendant needs to provide primary evidence to fill the gaps and support the secondary shreds of evidence.
19. Real Evidence-Also known as “material evidence.” They are the tangible evidence examined by the courts and are presented before the Court for examination of any physical object.
20. Oral Evidence-These are the pieces of evidence that are limited to the words spoken and sufficient to be proved without any other support. Chapter 4 of the Act deals with its provisions.
21. Trace Evidence-They are assumed to be empirical evidence and are collected with the help of scientific research requiring a lot of time investment.
    • Substantive And Corroborative Evidence– The substantive evidence is based on a proven fact, and hence no corroboration is required.
    • The corroborative shreds of evidence aid in making the substantive evidence more concrete.
      Both evidence is considered either direct or circumstantial or both, depending on the case.
22. Electronic Evidence – Electronic evidence was covered under the Indian Evidence Act, 1872 through the Indian Technology Act, 2000.

Electronic Evidence Under Indian Evidence Act

Due to the immense development in e-administration throughout the Public and Private Sector, Electronic Evidence has been included as a leading centre-piece of correlation, manipulation, and authentication. Civil and criminal litigation are increasingly using different types of electronic proof. Electronic evidence was covered under the Indian Evidence Act, 1872 through an amendment by the Indian Technology Act, 2000, and the clause “all documents produced for the inspection of the court” was then replaced by “All documents including electronic records produced for the inspection of the court” for the inclusion of the electronic records in the This evidence is the information stored or transferred in the binary form and is not restricted to computer-based information but also includes the incorporated evidence on multimedia and other telecommunication devices, systems, telephone systems, a navigation system, mobile phones, etc. Section 59 was amended, and the phrase “Content of documents” was duly replaced by the words “Content of the documents or electronic records.” Section 65A and 65B were added in this Act to provide for compatibility and effective regulation. The main motive of the parliament was to give a specific provision that dealt with the issue linked with escorting in electronic form of the evidence, which is generally accessible in the machine code in computers or other devices needing expert interpretation. Electronic records include the generated documents, data, stored images, sounds, or any additional information sent or received electronically. This evidence shall necessarily be collected in a rational and minimal offensive way, their gathering depending on the various circumstances as mentioned:

Conditions on which the gathering of electronic evidence depends

1. Type of investigation
2. Evidence should be apt to support the investigation.
3. System configuration encountered

The adjudicator shall know the precise electronic data needed for the examiner to be aware of the specific electronic data required for the perusal. Hence, they should be equipped to convey the hurdles that would arise in the course of electronic evidence gathering.

Consequences of regarding electronic evidence as primary or direct evidence

1. Bridging the gap between the primary and the secondary evidence- The Act has effectively bridged the gap between primary and secondary kinds of evidence by incorporating all types of computer evidence into the fold of direct evidence. Although the distinction is still likely to apply to other papers, a special exemption has been made for computers. But that is essential, nonetheless, due to the intricate nature of digital evidence, which is challenging to provide in tangible form. While it may seem reasonable to argue that if a word document is the original, a printout of it should be classified as secondary evidence, it should be remembered that presenting a word document in court without the use of printouts or CDs is not just difficult, but impossible.
2. Easing the legal proceedings-In the wake of the latest recent rash of global terrorism, encompassing terrorists using highly advanced tech to wage jihad, the way to articulate electronic evidence as direct and primary evidence in court is immensely helpful to the prosecutors, as it helps in proving the suspect
3. Chances of being tampered-As the legislation allows all types of computer data files to be used as primary evidence, it overlooks the possibility of manipulation as it is not difficult to manipulate with electronic evidence, and criminals may find it simple to alter data that must be produced in Court. Technology, on the other hand, provides answers to such issues. The progress of computer forensics has eased in cross-checking if an electronic record has been tampered with or not.
4. Pandora’s box could be triggered– In today’s era, computers have become the most extensively used device. A wide range of other devices rely on computer chips to operate. As a result, Sections 65A and 65B have an extensive reach. According to the letter of the law, any device containing a computer chip should be admissible as evidence in court. However, practical and ethical factors must be taken into account before extending the scope of these sections.

The Supreme Court, for example, has ruled that narco-analysis test findings are inadmissible evidence because they violate Article 20 (3) of the Constitution.

Major Cases Laws

1. In the Case of Sivrajbhan v. Harchandgir, it was mentioned that the word evidence in linkage to the judiciary had included all agreements except which proves or disproves a matter to whose truthfulness is entrusted for the legal examination. Hence, electronic evidence should be contemplated as a sustainable form of evidence. [i]
2. Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke- In the proceedings of determining the charges against the culprit in the corruption case, the Hon’ble High Court of Delhi observed that as the audio and the video CDs were undeniable while inadequate, hence the proceeding court mistakenly depended upon them for concluding that an inviolable Therefore, there is no fact-based on which it can be sensibly concluded that there was an intuition of the petitioners’ conspiracy in the performance of the crime.[ii]
3. Abdul Rahaman Kunji v. State of West Bengal- While the Hon’ble High Court of Calcutta decided the admissibility of email, it held that an email downloaded and printed from the individual’s email account can be evinced by the efficacy of Section 65B r/w Section 88A of the Evidence Act. The witness’s protest to conducting such a strategy to download and print the same is sufficient to prove electronic communication. [iii]
4. Section 65B (4) of the Indian Evidence Act talks about the requirement of an electronic certificate before approving an electronic record. In this reference, a decision was made in the case of Anvar P.V. vs. P.K. Basheer (3 judges’ bench) where it was held that a written certificate under Section 65B (4) is a condition precedent for mandatory for admissibility of electronic evidence. [iv]
5. The case of Shafhi Mohammad vs. The State of HP, fights the legal position on the subject of admissibility of electronic evidence, especially by a party who is not in possession of the device from which the document is produced. Such a party can not be required to produce a certificate under Section 65B (4). [v]
6. In the case of Vikram Singh and Anr. V State of Punjab and Anr., it was said that in cases where electronic records make primary evidence there, search electronic records shall be admissible under Section 62 of the Indian Evidence Act, 1872 and no certificate under Section 65B (4) However, when such electronic records make secondary evidence, then a mandatory certificate under Section 65B (4) is necessary to establish its intercity admissibility and compliance with the requirements of Section 65B (2). When electronic records are submitted, both data and meta-data (data which identifies the origin, destination, date and time of dispatch receipt of electronic records) are important aspects, especially the metadata which plays the main role in determining the admissibility of the electronic record as primary evidence or secondary evidence. [vi]
7. In the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and ors (3 judges bench), the SC on July 14, 2020 clarified the judgement of Anvar and Shafhi case and held that the requirement of certificate under Section [vii]

Conclusion

The adequacy of the secondary electronic evidence has to be perceived under the limits of Section.65B of the Evidence Act and the hypothesis of the legislature in the discharged judgments of the Apex courts. The theory is coherent and evident that if the secondary electronic evidence is without the certificate u/s 65B of the Evidence Act, it will not be acceptable and under any opinion of the forensic expert and the temperament of the witness in the Court of litigation can not be looked into by the Court. Although certain apertures remain to be doubtful as to the providence of the secondary electronic evidence grasped from the accused accordingly, the certificate u/s 65B of the Evidence Act is incapable. The accused cannot be represented as a witness against himself as it would contradict Article 19 of the Indian Constitution.

References

[i] Sivrajbhan v. Harchandgir, AIR 1954 SC 564 

[ii] Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [MANU/SC/0040/2015]

[iii] Abdul Rahaman Kunji v. The State of West Bengal [Manu/WB/0828/2014]

[iv] Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473

[v] Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801

[vi] Vikram Singh and Anr. v. State of Punjab and Anr. (2017) 8 SCC 518

[vii] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and ors CIVIL APPEAL NOS. 20825-20826 OF 2017