Electronic Evidence/ Digital

Evidence & Cyber Law in India

• The proliferation of computers and the influence of information
technology on society as whole, coupled with the ability to store and
amass information in digital form have all necessitated amendments
in Indian law, to incorporate the provisions on the appreciation of
digital evidence.
• The Information Technology Act, 2000 and its amendment is based on
the United Nations Commission on International Trade Law
(UNCITRAL) model Law on Electronic Commerce.
• The Information Technology (IT) Act 2000, was amended to allow for
the admissibility of digital evidence.
• An amendment to the Indian Evidence Act 1872, the Indian Penal
Code 1860 and the Banker's Book Evidence Act 1891 provides the
legislative framework for transactions in electronic world.
Digital Evidence
• Digital evidence or electronic evidence is any probative information stored or
transmitted in digital form that a party to a court case may use at trial.
• Before accepting digital evidence it is vital that the determination of its relevance,
veracity and authenticity be ascertained by the court and to establish if the fact is
hearsay or a copy is preferred to the original.
• Digital Evidence is “information of probative value that is stored or transmitted in
binary form”.
• Evidence is not only limited to that found on computers but may also extend to
include evidence on digital devices such as telecommunication or electronic
multimedia devices.
• The e-EVIDENCE can be found in e-mails, digital photographs, ATM transaction
logs, word processing, documents, instant message histories, files saved from
accounting programs, spreadsheets, internet browser histories databases,
Contents of computer memory, Computer backups, Computer printouts, Global
Positioning System tracks, Logs from a hotel’s electronic door locks, Digital video
or audio files.
• Digital Evidence tends to be more voluminous, more difficult to destroy, easily
modified, easily duplicated, potentially more expressive and more readily
available.
Computer forensics

• Computer forensics is a branch of forensic science pertaining to legal

evidence found in computers and digital storage mediums.
• Computer forensics is also known as digital forensics. The goal of
computer forensics is to explain the current state of a digital artifact.
• The term digital artifact can include:
1. A computer system storage medium (hard disk or CD-ROM)
2. an electronic document (e.g. an email message or JPEG image) or
3. even a sequence of packets moving over a computer network.
definition of 'evidence'
• The definition of 'evidence' has been amended to include electronic
records.
• The definition of 'documentary evidence' has been amended to include all
documents, including electronic records produced for inspection by the
court.
• Section 3 of the Evidence Act, 1872 defines evidence as under: "Evidence"
–
• Evidence means and includes:-
• 1) all statements which the court permits or requires to be made before it
by witnesses, in relation to matters of fact 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.
Electronic records
• The term 'electronic records' 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".
• The definition of 'admission' (Section 17 of the Evidence Act) has been changed to include a
statement in oral, documentary or electronic form which suggests an inference to any fact at issue
or of relevance.
• New Section 22-A has been inserted into Evidence Act, to provide for the relevancy of oral evidence
regarding the contents of electronic records.
• It provides that oral admissions regarding the contents of electronic records are not relevant unless
the genuineness of the electronic records produced is in question.
• The definition of 'evidence' has been amended to include electronic records. The definition of
'documentary evidence' has been amended to include all documents, including electronic records
produced for inspection by the court.
• New sections 65-A and 65-B are introduced to the Evidence Act, under the Second Schedule to the
IT Act. Section 65-A provides that the contents of electronic records may be proved in accordance
with the provisions of Section 65-B.
• Section 65-B provides that notwithstanding anything contained in the Evidence Act, any
information contained in an electronic, is deemed to be a document and is admissible in evidence
without further proof of the original's production, provided that the conditions set out in Section
65-B are satisfied.
The conditions specified in Section 65-B (2)
are:
1.Firstly, the computer output containing the information should have been
produced by the computer during the period over which the computer was used
regularly to store or process information for the purpose of any activities
regularly carried on over that period by the person having lawful control over the
use of the computer.
2.The second requirement is that it must be shown that during the said period the
information of the kind contained in electronic record or of the kind from which
the information contained is derived was 'regularly fed into the computer in the
ordinary course of the said activity'.
3.A third requirement is that during the material part of the said period, the
computer was operating properly and that even if it was not operating properly
for some time that break did not affect either the record or the accuracy of its
contents.
4.The fourth requirement is that the information contained in the record should be
a reproduction or derived from the information fed into the computer in the
ordinary course of the said activity.
• Under Section 65-B(4) the 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 and deals with the conditions mentioned in
• Section 65-B(2) and is signed by a person occupying a responsible
official position in relation to the operation of the relevant device
'shall be evidence of any matter stated in the certificate’.
• Section 65-B(1) states that if any information contained in an
electronic record produced from a computer (known as computer
output) has been copied on to a 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.
• Both in relation to the information as well as the computer in
question such document 'shall be admissible in any proceedings when
further proof or production of the original as evidence of any
contents of the original or of any fact stated therein of which direct
evidence would be admissible.'
ELECTRONIC EVIDENCE -CASE LAW'S
• Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal 11) [Sections 65-A and
65-B of Evidence Act, 1872 were analyzed.]
• The court held that the physical presence of person in Court may not
be required for purpose of adducing evidence and the same can be
done through medium like video conferencing.
• Sections 65-A and 65-B provide provisions for evidences relating to
electronic records and admissibility of electronic records, and that
definition of electronic records includes video conferencing.
State of Maharashtra vs. Dr Praful B Desai
(AIR 2003 SC 2053)
• [The question involved whether a witness can be examined by means of a
video conference.]
• The Supreme Court observed that video conferencing is an advancement of
science and technology which permits seeing, hearing and talking with
someone who is not physically present with the same facility and ease as if
they were physically present.
• The legal requirement for the presence of the witness does not mean
actual physical presence.
• The court allowed the examination of a witness through video
conferencing and concluded that there is no reason why the examination
of a witness by video conferencing should not be an essential part of
electronic evidence.
BODALA MURALI KRISHNA VS. SMT. BODALA
PRATHIMA (2007 (2) ALD 72)
• The court held that, “…the amendments carried to the Evidence Act
by introduction of Sections 65-A and 65-B are in relation to the
electronic record.
• Sections 67-A and 73-A were introduced as regards proof and
verification of digital signatures. As regards presumption to be drawn
about such records, Sections 85-A, 85-B, 85-C, 88-A and 90-A were
added.
• These provisions are referred only to demonstrate that the emphasis,
at present, is to recognize the electronic records and digital
signatures, as admissible pieces of evidence.”
DHARAMBIR Vs. CENTRAL BUREAU OF
INVESTIGATION (148 (2008) DLT 289).
• The court arrived at the conclusion that when Section 65-B talks of an electronic
record produced by a computer referred to as the computer output) it would also
include a hard disc in which information was stored or was earlier stored or
continues to be stored.
• It distinguished as there being two levels of an electronic record. One is the hard
disc which once used itself becomes an electronic record in relation to the
information regarding the changes the hard disc has been subject to and which
information is retrievable from the hard disc by using a software program.
• The other level of electronic record is the active accessible information recorded
in the hard disc in the form of a text file, or sound file or a video file etc.
• Such information that is accessible can be converted or copied as such to another
magnetic or electronic device like a CD, pen drive etc.
• Even a blank hard disc which contains no information but was once used for
recording information can also be copied by producing a cloned had or a mirror
image.
STATE (NCT OF DELHI) Vs. NAVJOT SANDHU
(AIR 2005 SC 3820)
• There was an appeal against conviction following the attack on Parliament
on December 13 2001.
• This case dealt with the proof and admissibility of mobile telephone call
records.
• While considering the appeal against the accused for attacking Parliament,
a submission was made on behalf of the accused that no reliance could be
placed on the mobile telephone call records, because the prosecution had
failed to produce the relevant certificate under Section 65-B(4) of the
Evidence Act.
• The Supreme Court concluded that a cross-examination of the competent
witness acquainted with the functioning of the computer during the
relevant time and the manner in which the printouts of the call records
were taken was sufficient to prove the call records.
JAGJIT SINGH Vs. STATE OF HARYANA ((2006)
11 SCC 1)
• The speaker of the Legislative Assembly of the State of Haryana disqualified
a member for defection.
• When hearing the matter, the Supreme Court considered the digital
evidence in the form of interview transcripts from the Zee News television
channel, the Aaj Tak television channel and the Haryana News of Punjab
Today television channel.
• The court determined that the electronic evidence placed on record was
admissible and upheld the reliance placed by the speaker on the recorded
interview when reaching the conclusion that the voices recorded on the CD
were those of the persons taking action.
• The Supreme Court found no infirmity in the speaker's reliance on the
digital evidence and the conclusions reached by him.
• The comments in this case indicate a trend emerging in Indian courts:
judges are beginning to recognize and appreciate the importance of digital
evidence in legal proceedings.
TWENTIETH CENTURY FOX FILM CORPORATION Vs. NRI FILM PRODUCTION
ASSOCIATES (P) LTD. (AIR 2003 KANT 148)
1. In this case certain conditions have been laid down for video-recording of evidence:
• Before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or an
undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same
person as who is going to depose on the screen. A copy is to be made available to the other side.
(Identification Affidavit).
• The person who examines the witness on the screen is also to file an affidavit/undertaking before examining
the witness with a copy to the other side with regard to identification.
• The witness has to be examined during working hours of Indian Courts. Oath is to be administered through
the media.
• The witness should not plead any inconvenience on account of time different between India and USA.
• Before examination of the witness, a set of plaint, written statement and other documents must be sent to
the witness so that the witness has acquaintance with the documents and an acknowledgement is to be
filed before the Court in this regard.
• Learned Judge is to record such remarks as is material regarding the demur of the witness while on the
screen.
• Learned Judge must note the objections raised during recording of witness and to decide the same at the
time of arguments.
• After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the
presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
• The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the
time of visual conference and notary is to certificate to this effect.
• The learned Judge may also impose such other conditions as are necessary in a given set of facts.