Sarita Kumari 16 June 2022

DV - Audio evidence - 65-B

Request for an expert opinion on the below:

There is a small audio file that needs to be submitted as an evidence in the Court under Domestic Violence matter. The audio was recorded in the Applicant's/complainant's husband phone. The phone started to malfunction so the husband transferred the audio file to his Google drive and saved it. Later the phone stopped working and was given for repair and the audio file is not in the phone anymore. Now its a secondary evidence so section 65- B certificate would be required. As there is no one to provide any such certificate, is it fine to submit an affidavit/declaration mentioning the details related to the audio file?

Reply Follow

3 Replies

Dr J C Vashista (Advocate) 17 June 2022

Originality of the audio recording has been tampered therefore, it would not be admitted in evidence and certificate given under section 65 B of Indian Evidence Act, 1872 will be challengable.

1 Like

Sarita Kumari 17 June 2022

Thanks for your response Dr. Vashista. The case is going on ex-parte. As the applicant husband himself transferred the audio file to his G-drive so who else can issue a certificate on that? Now what opssible options are available to submit the single audio file as an evidence.?

Dr J C Vashista (Advocate) 18 June 2022

@ Ms. Sarita Kumari,

You have stated, inter alia, that,

"The case is going on ex-parte."

In an ex-parte case what do you intend to prove in a case u/s 12 of Protection of Women from Domestic Violence Act, 2005, which is generelly confidential between aggrieved person and respondent(s) and least required to be proved.

Further you have stated, that,

"As the applicant husband himself transferred the audio file to his G-drive so who else can issue a certificate on that?"

After transfer of audio from an instrument (phone) to G-drive of computers it is to be termed as "tempered and not original" which is not admissible even as secondary evidence.

Besides this, your query qua,

"Now what opssible options are available to submit the single audio file as an evidence.?"

Is it required to be submitted ? I didn't find any reason to submit tempered audio file.

It would be better to prove such communication by oral statement of witness(es), even if none was present as there is no one for rebuttal being stated to have been proceeded "ex-parte".