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PRACTICALITIES ASSOCIATED WITH ADMISSIBILITY OF ELECTRONIC EVIDENCE

Author: Falguni Vivek Suryawanshi, IV year of B.A.,LL.B.(Hons.) from Maharashtra National Law University, Mumbai

Co-author: Dhanashree Balasaheb Kolte, IV year of B.A.,LL.B.(Hons.) from Maharashtra National Law University, Mumbai


INTRODUCTION

The advent of Information and Communication Technology has an enormous impact on various arenas like Trade & Commerce, thereby, impacting the way people communicate and transact business. Hence, with the increase in the use of cyberspace in daily activities, electronic evidences play a vital role in dispute resolution. Therefore, it is inevitable that the rules of admissibility should reflect the technological changes. Owing to the rapid technological changes, various nations are enacting new legislations and streamlining the existing laws accordingly. Similarly, India has enacted the Information Technology Act, 2000 (ITA) to primarily encourage and legitimize e-business and through the same Act, also amended its Indian Evidence Act, 1872 (IEA) especially on the issue of recognition, admissibility and appreciation of electronic evidence.


However, electronic evidence as opposed to traditional rules of authenticating documentary evidence is difficult to implement. Electronic evidence being easy to manipulate, create, copy or destroyed, may not have a strong evidentiary value as physical evidence. The evidence has to be proved ‘beyond a reasonable doubt’ and the admissibility of electronic evidence owing to the multiple risks is questionable. The article seeks to critically examine the rules of electronic admissibility using various statutes and judicial pronouncements. It purports to pinpoint the practical problems associated with the current settled position by highlighting both, legal and technical lacunas.


Evidence also includes electronic evidence under Indian Evidence Act which is any ESI (Electronic Stored Information) generated by some mechanical or electronic processes which can be used as evidence during a case before the court. Electronic evidence can be documents, E-mails, CDs or DVDs, or other files which are stores electronically.[i] Addition, it includes records which are stored by Internet or network service providers.


Section 65B of the Indian Evidence Act gives the procedure for justification of any documentary evidence by the way of an electronic record. It states that any information which is contained in an electronic record i.e., engrave on a paper, stored, recorded or copied in any optical or magnetic media which is produced by a computer shall be considered as a document if it fulfills the condition laid down under section 65B (2) to 65B (5).[ii] These conditions should be taken into consideration while proving the admissibility of anyelectronic evidence.


1. Audio & Video Recorded Conversations

It is a well settled legal proposition that the tape recorded conversation can be used as a primary and direct evidence. Therefore, tape records of speeches,[iii]audio/video cassettes,[iv]compact discs[v]are ‘documents’ under Section 3 of Indian Evidence Act, 1872. They are as similar as photographs and therefore are admissible. However, the Courts have laid parameters in order to admit such conversations. The tape recorded conversations can be used to corroborate evidence given by the witness, contradict the evidence, test the veracity of the witness, or impeach the impartiality. It is not only confined to corroboration or contradiction but also extends to be used as substantive evidence.[vi]


In R.M. Malkaniv. State of Maharashtra,[vii]the Supreme Court has held that the tape recorded conversation is admissible and is a relevant fact provided that the conversation is relevant to the matters in issue, secondly, there is identification of the voice: and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record.


In Ram Singh and Ors. v. Ram Singh,[viii]the Court laid down the conditions for admissibility of tape recorded conversations provided that the following conditions are fulfilled-

The voice must be duly identified. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

a) The maker has to prove the record by satisfactory evidence- direct or circumstantial.

b) The maker has to rule out all the possibility of tampering

c) The statement must be relevant according to Indian Evidence Act.

d) The recorded cassette must be carefully sealed and kept in safe and official custody.

e) The voice should be clear and not distorted by other sounds or disturbances.


The Court has relied upon tape recorded reproductions in Ziyauddin Burhanuddin Bukhariv. Brijmohan Ramdass Mehra and Ors.[ix]The Court clearly laid out that the tape recorded speeches if not tampered with, were the best form of evidence available with respect to the statements recorded thereto. However, the Court had laid down three grounds for considering tape records to be reliable and authentic. Firstly, the tape records should be prepared and preserved safely by an independent authority. Secondly, the transcripts from the tape records, shown to have been duly prepared under independent supervision and control, very soon afterwards, made subsequent tempering with the cassettes easy to detect; and, thirdly, the police had should not use it for the purpose of laying any trap to procure evidence.


In Yusufalli Esmail Nagreev. The State of Maharashtra,[x]the Court pondered on the fact that tape recording have the ability to erase and re-use the recording medium. Therefore, the evidence must be received with caution. The time, place and accuracy of the recordings have to be proved by the competent witness and the voices must be properly identified. The Court must be satisfied beyond reasonable doubt that the record has not been tampered with.


2. WhatsApp conversations

Section65A and 65B of Indian Evidence Act laysdown the conditions that are required to be met in the case of producing WhatsApp evidences in court. The party which is producing WhatsApp evidence has to provide a certificate from a Forensic Laboratory stating the details of the electronic records in order for Courts to admit the electronic records as evidence. WhatsApp conversationsare admissible in the Court of Law as evidence provided that the conditions enlisted in Section65A and 65B.


In Ambala Sarabhai Enterprise v. Ks InfraspaceLlp Limited,[xi]The Supreme Court made areference of WhatsApp messages produced as evidence. The Court held that the WhatsApp messages being virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidence-in-chief and cross examination. However, there are differing opinions by various courts on the issue whether certification under Section 65B is mandatory for WhatsApp messages to be of any evidentiary value.


Forinstance, In Rakesh Kumar Singla v. Union of India[xii] (Punjab and Haryana High Court) the learned council placed reliance on WhatsApp messages that could implicate the petitioner for granting bail. However, on asking of the Court, the certificate under Section 65B of the Indian Evidence Act isavailable for authentication of messages couldn’t be produced.


In this case, the Supreme Court placed reliance on Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal,[xiii]where in it mandated the certification of Section 65B of Indian Evidence Act if reliance is placed upon electronic record. In case, no certificate is provided then the said message is of no evidentiary value.


Whereas, in Chirag Dipakbhai Sulekha v. State of Gujarat,[xiv]the Gujrat High Court granted bail placing reliance on WhatsApp messages between the two parties in question concluding that they know each other very well and that there a relationship between them. Further,inKaranChhabraand Ors. v. State of Haryana[xv]where three students of Jindal Global University were accused ofgangrapingandblackmailingtheirjunior,thecourtdirectlyadmittedWhats App chats as evidence and stated that these messages have played a concomitant role in corroborating the intention andadducingto thecommission of the offence.


3. Emails

There are differing opinions with regards to admissibility of email as evidence. In Kundan Singhv. The State,[xvi]the Delhi High Court explained that a computer output is treated as evidence when the provision under section 65B of the Indian Evidence Act is fulfilled. Such evidence is admissible in the Court and the onus of proving its originality lies in the person who sought to produce it as evidence. Here certificate under section 65B is mandatory.


The High Court of Calcutta in Abdul RahamanKunji v. The State of West Bengal,[xvii]stated that emails downloaded and printed from an individual’s email record and proved under section 65B with respect to section 88A of Indian Evidence Act is admissible in the Court as electronic evidence.


However, in Mr. S. Karunakaran v. Ms. Srileka,[xviii]emails were presented to prove the relationship between the parties in question. The Madras High Court stated that telegraphic materials cannot be received as evidence. Mere filing of such email, it cannot be said that those emails have been proved as per law and that sending of electronic messages and emails has to be proved. The Court cannot presume that it was the plaintiff that has sent such emails. As long as proof as to who has sent such email is established, it is highly difficult to presume that only the plaintiff has sent such email, the emails cannot be given much importance, without its proof.


4. Hard-disc and Photographs

On whether hard disc can be used as documentary evidence, the Delhi High Court in Dharambirv. Central Bureau of Investigation[xix]observed that as long as the hard disc is subjected to no change, it is a mere storage device. As soon as the blank hard disc is written upon, it becomes an electronic record. Even if the hard disc is restored to its original form of a blank hard disc by erasing what was recorded on it, it would still retain information which indicates that some text or file in any form was recorded on it and was subsequently removed.


Photographs - In another case of PuneetPrakash v. Suresh Kumar Singhal&Anr,[xx]the Court states that when photographs are taken digitally and the person who took the photographs and himself has deposed in the Court, his mere statement that he got photograph developed himself is sufficient and satisfy the requirements of Section 65B of the Evidence Act. A digital photograph which is proved constitutes electronic evidence, which is admissible.


PRACTICAL ISSUES

1. Accuracy of Electronic Evidence

Identification of any said electronic record is of primary concern for the Courts to admit such record as evidence. A certificate under section 65B is mandatory for the admissibility of the electronic evidence. On top of that, Court seeks the creator of the record in question to testify on who the author of the said electronic record is. The reliability of the documentation of the computer data is questioned along with the performance of the computer. If the documentation is tampered with, after the document has been created. For example, if a photograph is photo-shopped, altered, changed, or hacked during the process.


2. Primary evidence or Secondary Evidence

There is a blurred boundary between primary and secondary evidence when it comes to electronic evidences. As the data derived is computer-generated, it is difficult to present its physical form in the Court. As a consequence, if the word document is the original, a printout of the same might be considered as secondary evidence. Producing a word document in courtwithout the use ofprintoutsor CDs is verydifficult.


3. Time Consuming

The whole process of issuing a certificate (from Forensic Labs) under section 65B of Evidence Act is quite time consuming and it can take months to authenticate an electronic device. Also, there lacks such Forensic labs for authentication process of electronic evidence. Further, testimony ofnumerouspeopleis timeconsuming.


4. Expert Testimony

Expert testimony can be used in court only if it was provided by an expert rather than a layman. A layperson’s testimony is not admissiblein court.


5. WhatsApp Calls

In normal calls, through CDR’s and SDR’s, one can track the authentic call records and relevantinformation which is admissible in Court. But if a WhatsApp call is made, there’s no way suchcallscould be traced as thedata onWhatsApp is encrypted.


6. Lack of Training and Expertise

Poor knowledge of electronic and forensic techniques is affecting the quality of police probes and impacting the conviction rate, hence, hindering the process of justice. Since virtual world isdifferent and the investigator cannot apply traditional evidence procedures as this evidence is nottangible and perceptible.


7. Standard Operating Process/ Guidelines for Storing, Collection and Acquisition

There are no set guidelines as to on what basis should an electronic evidence be admissible in the court. The judges have a discretionary power over this decision. Hence, what is admissible for one judge might not be the same for another. Also, there are no proper guidelines for collection andacquisition of the evidence. Finally, if the digital evidence is made inadmissible in court due toproblemsinhandlingitappropriately.Theinvestigationteamandforensiclabshavedifferentsetsofguidelines makingit inconsistent especiallywhen cyber spacehas no territorialboundaries.


8. Manipulation of the evidence

As the process of certification and preservation of the evidence being time consuming, there is a high risk of manipulation of electronic evidence through hacking, etc. For instance, if an electronic device is to be sent in another city for authentication process and such device comes in contactwith any magnetic substance present around it, there is a chance that the data might be hampereddueto themagneticwaves.


9. Ambiguityinjudgments

There is an ambiguity in the certification under section 65B of the Indian Evidence Act. Forinstance, some of the Courts have admitted WhatsApp conversations without the certificationrequired under section 65B of Evidence Act.


CONCLUSION

The process of recording electronic documentation has both ethical and societal problems. Mobile phones contain all sorts of information about various aspects of our life. In recent years, the media has placed a larger focus on electronic data collecting. The most significant issue is whether to rely on such electronic information and the utilization of knowledge acquired from electronic devises and networks. Establishing a regulatory framework, addressing numerous legal concerns and considering future challenges are all required in this time and age.

[i]Indian Evidence Act, 1872 § sec. 65 [ii]Supra 1 [iii]Tukaram S. Dighole v. ManikraoShivajiKokate, 4 SCC 329(2010); ZiyauddinBurhanuddinBukhari v. Brijmohan RamdassMehra, 2 SCC 17(1976)https://vlex.in/vid/c-no-002928-002928-852329385 [iv]BurhanuddinBukhariv. BrijmohanRamdasMehra, 2 SCC 17 (1976)https://indiankanoon.org/doc/382199/ [v]Singh Verma v. State of Haryana, 15 SCC 485 (2016)https://www.casemine.com/search/in/shamsher%2Bsingh%2Bverma [vi]N. Sri Rama Reddy and Ors. v. V.V. Giri. 1 SCR 399 (1971),AIR 1162 (1971)https://indiankanoon.org/doc/859989/ [vii]SC 157 (1973), AIR 1973https://indiankanoon.org/doc/1179783/ [viii] 2 SCR 399 (1985)https://indiankanoon.org/doc/22898/ [ix]SCR 453 (1975), AIR 1778 (1975)https://indiankanoon.org/doc/382199/ [x]AIR 147 (1968), 3 SCR 720 (1967)https://jajharkhand.in/wp/wp-content/judicial_updates_files/13_Evidence_Act/27_tape_recorded_conversation/Yusufalli_Esmail_Nagree_vs_The_State_Of_Maharashtra_on_19_April,_1967.PDF [xi]5 SCC 410(2020) , AIR SC 307 (2020)https://indiankanoon.org/doc/51304221/ [xii]CRM-M No.23220 of 2020 (O&M)https://www.livelaw.in/pdf_upload/crm-m23220202014012021finalorder-387533.pdf [xiii]7 SCC 1(2020)https://indiankanoon.org/doc/172105947/ [xiv]R/Criminal Misc Application No 18834 of 2020.https://www.livelaw.in/pdf_upload/crma188342020gjhc240572332020111122020-387532.pdf [xv]CRA-D-653-DB-2017 (O&M)https://legiteye.com/in-cra-d-653-db-2017-om-punj-hc-mere-absence-of-physical-resistance-cannot-be-regarded-as-consent-and-if-prosecutrix-has-no-option-but-to-submit-mere-submission-on-her-part-will-not-constitute-consent-and-case-will-fall-within-sec375-ipc-rules-ph-hc-while-upholding-conviction-of-2-accused-in-jindal-university-rape-case-justices-tejinder-singh-dhindsa-pankaj-jain-30-09-2022/ [xvi]CRL.A. 711/2014https://vlex.in/vid/kundan-singh-vs-the-654461357 [xvii]1 Cal LT 318(2015)http://odishapolicecidcb.gov.in/sites/default/files/Abdul%20Rahaman%20Kunji_vs_TheState%20Of%20West%20Bengall_on_14_November%2C_2014-E-MAIL.PDF [xviii]Appeal Suit No.292 of 2019 of 2019 and C.M.P.No.10093 of 2019https://indiankanoon.org/doc/97350385/ [xix]148 DLT 289(2008)https://indiankanoon.org/docfragment/1955364/?formInput=148%20%282008%29%20DLT%20289 [xx]RFA 744/2016https://www.naavi.org/wp/puneet-prakash-vs-suresh-kumar-singhal-evidence-under-section-65b-unacceptable-judgement/

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