|Originally posted by : manjula Toshikhani
||can photos and vedio cd be considered as evidence
The Evidence Act was drafted to codify principles of evidence and fundamental rule of evidence . As seen in sections 59 and 60 of the Evidence Act , oral evidence may be adduced to prove all facts, except documents, provided , the oral evidence is direct .
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.
Section 62 of the Evidence Act says Primary evidence of the contents of a document is the document itself. On reading section 63 ,Secondary evidence of the contents of a document includes, amongst other things, certified copies of that document, copies made by mechanical processes that insure accuracy, and oral accounts of the contents by someone who has seen that document.
There are situations where the original document cannot be produced as stated in Section 65 of the Evidence Act and the secondary evidence listed in section 63 can be used to prove its content.
As we all know ‘’Generalia specialibus non derogant’’ is the Maxim . The general act is not to be construed to repeal a previous act, unless there is some express reference to the previous act on the subject, or a necessary inconsistency in the two together. The legislature with attention to a special subject , does not intend afterwards to derogate from its own act if there is no special mention of any such intention .
When there are provisions in a special Act and in a general Act on the same subject which are inconsistent, if the special Act gives a complete rule on the subject, the expression of the rule acts as an exception to the subject-matter of the rule from the general Act.
The maxim Generalia specialibus non derogant means that, for the purposes of interpretation of two statutes in apparent conflict, the provisions of a general statute must yield to those of a special one.
Under section 59 of the Evidence Act , Oral evidence cannot prove the contents of documents since the document is absent, the truth or accuracy of the oral evidence cannot be compared to the document and to prove the contents of a document, either primary or secondary evidence is necessary.
While more and more documents were electronically stored, the hearsay rule faced new challenges in the matter of digital documents. In Anvar v. P. K. Basheer dated 18 September, 2014, the Supreme Court noted that “there is a revolution in the way that evidence is produced before the court”.
When electronically stored information was treated as a document in India before 2000 , secondary evidence of these electronic ‘documents’ was adduced through printed reproductions or transcriptts, and the authenticity was certified. The signatory would identify signature in court and be open to cross examination by meeting the conditions of both sections 63 and 65 of the Evidence Act. When the creation and storage of electronic information grew more complex, the law had to change more substantially.
By the Information Technology Act, 2000 new definitions are given to the words “data”, “electronic record”, and “computer”.
The definition of 'admission' (Section 17 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.
Section 59 of the Evidence Act is amended by the IT Act to exclude electronic records and inserted section 65A and section 65B , instead of submitting electronic records to the test of secondary evidence as contained in sections 63 and 65.Section 65A has given the right to prove the contents of electronic records in accordance with the provisions of section 65B.
Section 65A of the Evidence Act is for electronic records just as section 61 does is for documentary evidence. A procedure, distinct from the one for oral evidence is formulated , to ensure electronic records obeys the hearsay rule. section 65A is a special law that stands apart from the documentary evidence procedure in sections 63 and 65.
Any probative information stored or transmitted in digital form is digital evidence or electronic evidence. Before accepting digital evidence, its relevancy, veracity and authenticity and whether the fact is hearsay or a copy is preferred to the original is to be ascertained by the court. 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
In the landmark decision of United States District Court for Maryland in Lorraine v. Markel American Insurance Company in 2007 held that when electronically stored information is offered as evidence, the following to be ascertained . (i) is the information relevant; (ii) is it authentic; (iii) is it hearsay; (iv) is it original or, if it is a duplicate, is there admissible secondary evidence to support it; and (v) does its probative value survive the test of unfair prejudice?
But , in Amar Singh v. Union of India (2011) 7 SCC 69 all the parties, including the state and the telephone company, dispute the authenticity of the transcriptts of the CDRs, and the authorisation itself and in Ratan Tata v. Union of India W. P (C) 398 of 2010, a CD containing intercepted telephone calls was introduced in the Supreme Court without following any of the procedure contained in the Evidence Act.
In Anvar v. P. K. Basheer to declare new law in respect of the evidentiary admissibility of the contents of electronic records , overruled the earlier Supreme Court judgment State (NCT of Delhi) v Navjot Sandhu alias Afsal Guru (2005) 11 SCC 600 and the application of sections 63, 65, and 65B of the Indian Evidence Act, re-interpreted
Technical Conditions upon which a copy of an original electronic record may be used can be seen in S. 65B(2) as (i) at the time of the creation of the electronic record, the computer that produced it must have been in regular use; (ii) the kind of information contained in the electronic record must have been regularly and ordinarily fed in to the computer; (iii) the computer was operating properly; and, (iv) the duplicate copy must be a reproduction of the original electronic record.
The non-technical conditions to establish authenticity of electronic evidence in section 65B (4) requires the production of a certificate by a senior person responsible for the computer on which the electronic record was created, or is stored. The certificate must identify the original electronic record, describe manner of creation, the device created it, and certifying compliance of sub-section (2) of section 65B.
The Evidence Act prescribes a special procedure for electronic records as copies are vulnerable to manipulation. Despite these infirmities, the Supreme Court stepped in to certify the secondary evidence itself, even though it is not competent to do so. The court did not compare the printed CDRs to the original electronic record and in a sence, the court allowed hearsay evidence. S. 65B of the Evidence Act is intended to avoid these sort of situations by demanding an impartial certificate under sub-section (4) in compliance with sub-section (2).
Up to some point of time thereafter ignoring special procedure of section 65B , printed versions of CDRs were admitted in evidence if certified by an officer under sections 63 and 65 of the Evidence Act
As we know , Tape - records of speeches are "documents" as defined in S.3 of the Evidence Act and stand on no different footing than photographs 1976 (2) SCC 17 and if that be so there is no doubt that the electronic documents are not having any differences .
With this back ground , let us examine the law evolved by judgements on the subject of electronic evidence .
The Supreme Court observed in Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147, that since the tape - records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not been tampered with.
The Supreme Court in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra and others, 1976 (2) SCC 17 : (AIR 1975 SC 1788) has as under:
". We think that the High Court was quite right in holding that the tape - records of speeches were "documents", as defined by S.3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject - matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."
It is interesting to see the observations in AIR 2010 SC 965 - In order to prove the charge of corrupt practice, the petitioner has filed one Video CD and the court found that new techniques and devices are the order of the day . A first hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence by Audio and videotape technology. At the same time, , such evidence has to be received with caution as with fast development in the electronic techniques, they are more susceptible to tampering and alterations by transcripttion, excision, etc. which may be difficult to detect and it emphasized that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence,
When the accuracy of the recording has not been proved by the petitioner by examining a competent witness, alleged maker of Video CD. The Video CD therefore, is not admissible in evidence . .. AIR 2013 Ch. 141
So on a careful analysis of the evolution of the case laws on the subject it is clear that the courts were harsh on similar evidence considering highest of tampering and foul play .
There is also no doubt that the new techniques and devices are the order of the day. With the advancement of information technology there is increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant. Audio and video tape technology has emerged as a powerful medium through which a first hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, these tapes are more susceptible to tampering and alterations. which may be difficult to detect .Therefore, such evidence has to be received with caution. Electronic documents are admitted as material evidence subject to certain conditions also .Though it is not feasible to lay down any exhaustive set of rules to judge the admissibility of such evidence, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.
With the amendment to the Indian Evidence Act in 2000, contents of electronic records may be admitted as evidence. The computer generated electronic records in evidence are admissible at a trial if proved .Sub-section (1) of S.65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of S.65B. Secondary evidence of contents of document can also be led under S.65 of the Evidence Act. it is the settled law that the document, contents whereof were not proved nor the maker thereof was examined, is inadmissible in evidence( AIR 1986 SC 3)
So far discharging of burden of proof is concerned , production of scientific and electronic evidence in Court as contemplated under S.65B of the Evidence Act is of great help. The relevance of electronic evidence is also evident in the light of Mohd. Ajmal Mohammad Amir Kasab v. State of Maharashtra, wherein production of transcriptts of internet transactions helped proving the guilt of the accused.In Navjot Sandhu @ Afsan Guru, , the links between terrorists and the masterminds of the attack were established only through phone call transcriptts obtained from the mobile service providers.
Non - production of CCTV footage, call and Sim details of mobile phones of the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.
When according to S.114(g) of the Evidence Act, a party in possession of best evidence which will throw light in controversy, if withholds it, the Court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under S.114 (g) is only a permissible inference and not a necessary inference.
Drawing of presumption under S.114(g) of Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the nature, quality of the evidence produced and its accessibility to the party concerned . It is only after considering all these matters are duly considered that an adverse inference can be drawn against the party.
In a case based on circumstantial evidence, circumstances from which inference of guilt is sought to be drawn should be fully proved and such circumstances must be of conclusive nature pointing to the guilt of accused. When it is said that there shall be no gap in such chain of circumstances , it may not be proper for the Court to jump in to the conclusion that the electronic evidence is admissible in evidence . It is to be substantiated in the trial and the opposite party should be given with chance to rebut the same so that the rule of law would prevail. Once electronic evidence is properly adduced, along with the certificate of sub-section (4), the other party may challenge the genuineness and if original electronic record is challenged, section 22A though disqualifies oral evidence as to the contents of the electronic record, oral evidence as to the genuineness of the record can be offered.
Anvar does for India is what Lorraine did for US federal courts. In Anvar, the Supreme Court set track Indian electronic evidence law to the special procedure created under section 65B of the Evidence Act by applying the maxim generalia specialibus non derogant (“the general does not detract from the specific”), a restatement of the principle ‘lex specialis derogat legi generali ‘(“special law repeals general law”). The Supreme Court held that the provisions of sections 65A and 65B of the Evidence Act created special law that overrides the general law of documentary evidence . The law in india is changing and the judicial verdicts have great role in moulding the Law applicable to the country . By the present judgment in Anvar v. P. K. Basheer dated 18 September, 2014, the honourable supreme court of India has done it well and of course in right time . More and more Judges will come and more and more judgments will be delivered . The judgments they delivered will be scrutinised through the scanner of Constitution continuously . I think the present judgment will make the lawmakers to seriously think about to some methods for a fool proof method to overcome the situation .
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