Documentary evidence is in many respects considered better than the evidence furnished by witnesses, about which there has always been a certain amount of suspicion, though it comes with a rider- a proof for veracity.
Definition:
Any matter which is expressed or described on any substance by means of letters, figures or remarks or by more than one means and which can be used for recording the matter is considered as a “document”.
The evidence which is confined to the words spoken by mouth is the oral evidence. If oral evidence is worthy of credit, it is sufficient to prove a fact or a title without any documentary evidence but where there forms need to supplement the contention with support of any material evidence which can be produced in court in form of anything else but statement, that is where the documentary evidence steps in.
Documentary evidence is in many respects considered better than the evidence furnished by witnesses, about which there has always been a certain amount of suspicion. Documentary evidence differs considerably from the evidence of witnesses and is dealt with under special rules.
Introduction:
Section 65A and 65B in the Indian Evidence Act, 1872 has been added by Information Technology Act, 2000. Section 65A lays down the contents of electronic records may be proved with the provisions laid in the Section 65B.Section 65B (Admissibility of electronic records) states that any information contained in electronic records which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be also deemed to be a document if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings , without any further proof or production of the original.
The documents produced before the court as evidence are the documentary evidence and there must primary or secondary evidence to prove the contents of the documents.
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 a court will determine if the evidence is relevant, whether it is authentic, if it is hearsay and whether a copy is acceptable or the original is required.
Defining Electronic Evidence
Section 3 of the Evidence Act, 1872 defines evidence as: Evidence means and includes: all documents including electronic records produced for the inspection of the court. Such documents are called documentary evidence.
Section 2(t) of the Information Technology Act, 2000 “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
The conditions of Section 65B
Information was produced during the regular course of activities by the person having a lawful control over the computer’s use.
Information has been regularly fed into the computer in the ordinary course of said activities.
Throughout the material part of said period, the computer was operating properly or the improper operation as not such as to affect the electronic record or the accuracy of its contents.
Information contained in the electronic records reproduces or is derived from such information fed into the computer in the ordinary course of activities.
The primary purpose is to sanctify proof by secondary evidence. This facility of proof by secondary evidence would apply to any computer output, such output being deemed as a document. A computer output is a deemed document for the purpose of proof.
Where the information was processed or fed into the computer on inter linked computers or one computer after the other in succession all the computers so used shall be treated as one single computer.
Section 65B also lays down that for the purpose of evidence, a certificate identifying the electronic records containing the statement and describing the manner in which it was produced by a computer and satisfying the conditions mentioned above and signed by a officer in charge of the operation or management of the related activities shall be the evidence of any matter stated in the certificate it shall be sufficient for the matter to be stated to the best of the knowledge and belief of the person stating .
Any information to be taken to be supplied to a computer, if it is done in any appropriate form whether directly with or without human intervention by means of any appropriate equipment, or any information is supplied by any official in the course of his activities with a view of storing or processing it even if the computer is being operated outside those activities.
Audio C.D.
In matrimonial proceedings for dissolution of a marriage, the wife was alleged to have abused and threatened her husband on the cell phone and the same was recorded on it. The matter was recorded by the husband in an Audio C.D. The cell phone was not produced. Only the C.D was exhibited. The wife objected alleging fabrication. The court ordered the C.D to be marked as an exhibit subject to the condition that whenever it was played, opportunity for cross examination should be given to the wife. Where the petitioner (election petition) had himself admitted that he was not aware as to how and in what manner the C.D was prepared, it was held to be not admissible in evidence. It was of no help to the petitioner I proving the charge of corruption against the returned candidate.
Video –Conferencing
The facility of recording evidence by video conferencing has been already accorded in criminal cases. The court said that there cannot be any plausible objection to adopting the same procedure in civil cases also. But necessary precautions must be taken both as to identify witness and accuracy of the equipment used for the purposes.
Family Courts Act (Section 10(3))
For the purpose of recording evidence with utilization of video conferencing technology, discretion has been vested in the family court itself to record evidence through such process. By virtue of Section 10(3), family courts are empowered to adopt their own procedure to arrive at a settlement or to get truth of the matter.
Due to enormous growth in e-governance throughout the Public & Private Sector, Electronic Evidence have involved into a fundamental pillar of communication, processing and documentation. These various forms of electronic evidence are increasingly being used in both Civil & Criminal Litigations. During trials, Judges are often asked to rule on the admissibility of electronic evidence and it substantially impacts the outcome of civil law suit or conviction/acquittal of the accused. The Court continue to grapple with this new electronic frontier as the unique nature of e-evidence, as well as the ease with which it can be fabricated or falsified, creates hurdle to admissibility not faced with the other evidences. The various categories of electronic evidence such as website data, social network communication, e-mail, SMS/MMS and computer generated documents poses unique problem and challenges for proper authentication and subject to a different set of views.
Case Laws on S.65B-Certification in India
1. Anvar P.V vs. P.K Basheer (2014)10 SCC473:
Overruled Navjyot Sandhu Case in which held that electronic evidences without any certification will be admissible.
Electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section65B are satisfied. Since 65A and 65B are special provisions they will be given precedence over general laws in Sections 63 and 65(Generaliaspecialibus non derogant).
Notwithstanding Sections 59, 65A and 65B of the Evidence Act, an electronic record used as primary evidence under Section 62 is admissible in evidence, without complying Section 65B of the Evidence Act. (Para 22)
Makes all of the conditions under Section 65B (4) imperative
2. Sanjay sinh Ram rao Chavan Vs. Dattatray Gulab rao Phalke&Ors. (2015)3SCC 123:
Without source there is no authenticity for the translation. Source and authenticity are the two key factors for electronic evidence.
3. Abdul Rahaman Kunji Vs. State of West Bengal [2016 CLRJ 1159]:
High Court of Calcutta while deciding admissibility of email held that an email downloaded and printed from email account of the person can be proved by sec. 65B r/w Sec 88A. Testimony of witness to carry out such procedure to download and print the same is sufficient to prove communication.
4. VikramVs. State of Punjab (2017) 8 SCC 518:
Tape recorded conversation in this case was held to be primary evidence and not secondary evidence which required certificate under S.65B.
Reference to Anvar case: If electronic evidence is used as primary evidence the same is admissible in evidence, without compliance with the conditions in Section 65 B.
5. Sonu Vs. State of Haryana (2017) 8 SCC 570:
A CDR without any certification under Section 65B is not inherently inadmissible. Such certification pertains to the mode and method of proof and objection thereto must be raised at the earliest stage. In the event of failure objection cannot be raised at main appellate stage.
Comments on necessity of prospective overruling and leaves the question of retrospective application of Anvar open for an appropriate bench as Anvar was a larger bench.
6. Shafhi Mohammad Vs. State of U.P (2018) 1 SCC (Cri) 860:
Requirement of certificate being procedural can be relaxed by the court wherever the interest of justice so justifies. (Example; Bills generated in shops, electronic tickets etc.)
Procedural requirement under Section 65B(4) of Evidence Act of furnishing certificate is to be applied only when electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device.
When the party is not in possession of such a device, applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded.
7. State of Karnataka Lokayukta Police Station, Bengaluru V. R. Hiremath, [Criminal Appeal No. 819 of 219; 2019 SCCOnLine SC734]:
Certificate under 65(B) can be supplied subsequent to filing of charge sheet. Production of such a certificate is required when the electronic record is sought to be produced in evidence at the trial.
CONCLUSION:
The admissibility of the secondary electronic evidence has to be adjudged within the parameters of Section 65B of Evidence Act and the proposition of the law settled in the recent judgment of the Apex Court and various other High Courts as discussed above. The proposition is clear and explicit that if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act, it is not admissible and any opinion of the forensic expert and the deposition of the witness in the court of law cannot be looked into by the court. However, there are few gaps which are still unresolved as what would be the fate of the secondary electronic evidence seized from the accused wherein, the certificate u/s 65B of Evidence Act cannot be taken and the accused cannot be made witness against himself as it would be volatile of the Article 19 of the Constitution of India.
With the technological advancement, the admissibility of the secondary electronic evidence has to be adjudged within the parameters of Section 65B of Evidence Act and the proposition of the law settled in the recent judgment of the Apex Court and various other High Courts as discussed above. The proposition is clear and explicit that if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act, it is not admissible and any opinion of the forensic expert and the deposition of the witness in the court of law cannot be looked into by the court. However, there are few gaps which are still unresolved as what would be the fate of the secondary electronic evidence seized from the accused wherein, the certificate u/s 65B of Evidence Act cannot be taken and “No person accused of any offence shall be compelled to be a witness against himself” as per Article 20(3) of the Constitution of India.
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