This article has been written by Artha Shyam pursuing the Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).
When we need to go to court, we present information to the judge called evidence, and the judge decides our case based on such information. The judge’s decisions are based on the evidence and testimony of witnesses. The information must not be rumour or speculation. Evidence is an important part of every case in a court of law since every accusation or demand made in court must be proven by evidence or it will be dismissed. The Evidence Act was amended by virtue of Section 92 of the IT Act and the term “evidence” was amended to include “electronic record”, thereby allowing for admissibility of the digital evidence, however, prior to the recognition granted to electronic evidence, Sections 63 and 65 of the Evidence Act dealt with and provided for the conditions for admissibility of electronic evidence. Through this article, we explore the various types of evidence while focussing on adducing secondary and digital evidence in court.
Types of evidence
The Indian Evidence Act, 1882 governs the field of Indian evidence law.
Evidence, according to Section 3 of the Evidence Act of 1872, is defined as:
- All such remarks that the court permits or requires witnesses to make in connection with the facts under investigation. Such remarks made by witnesses in the court are called Oral evidence.
- All of these documents, as well as any electronic records, that were brought before the court for scrutiny. Documentary evidence refers to these documents.
Evidence can be classified into two:
- Oral evidence
Section 60 – Oral evidence refers to that evidence which the witness has personally witnessed, or if the witness has heard any facts or information capable of proving or establishing the facts in dispute. The only requirement for this form of evidence is that it must be direct or affirmative in order to establish the fact in question.
- Documentary evidence
Documentary evidence is evidence that refers to any issue that is described or stated in any material in the form of letters, numbers, or marks, or in more than one of the forms that can be utilised to document the issue. To prove a disputed fact in court, such evidence is submitted in the form of a document.
Primary documentary evidence consists of original documents as defined in Section 62 of the Indian Evidence Act, whereas secondary documentary evidence consists of copies of documents that can be presented in court under certain circumstances or as defined in Sections 63 and 65 of the Indian Evidence Act.
Electronic records can also be offered in court as evidence, which means that electronic records can be used to provide evidence in criminal cases as well. The types of oral and documentary evidence are as follows:
- Direct or primary evidence
Direct evidence is widely considered as the most significant type of evidence needed to resolve a dispute. It is one of the most effective sorts of evidence since it does not require the court to draw any inferences because the evidence demonstrates the direct impact and is extremely valuable in establishing or proving any truth in dispute. Section 64 of the Indian Evidence Act requires that primary evidence be proven. Primary evidence is the type of evidence that is thought to have the greatest degree of factual certainty in the case at hand.
- Indirect or hearsay or secondary evidence
Indirect evidence is evidence that proves the facts in question by presenting other indirect evidence and then demonstrating their relevance to the issue. By relating a series of other facts to the facts in question, a deduction can be derived from such data. These circumstantial facts must be linked to the primary facts and have a cause-and-effect relationship. When there isn’t enough direct evidence to prove a fact in question, the court can make an assumption about the availability of existing evidence and build a link between the evidence and the inference. The court can establish any fact if the constructive link is proven beyond a reasonable doubt.
Secondary evidence under the Indian Evidence Act, 1872
Secondary evidence is dealt with in Section 63 of the Indian Evidence Act of 1872, and it includes:
- Certified Copies;
- Copies prepared by mechanical process;
- Counter foils;
- Xerox copy;
- Photostat copy;
- Carbon copy;
- Typed copy;
- Tape records;
- Copies made from or compared with original copy;
- Original accounts;
- Registration copy;
- Unprobated will;
- Age certificate;
- Voters list;
- Newspaper report.
Admissibility of secondary evidence
Basic evidence is admissible in seven cases under Section 65 of the Evidence Act. This section discusses the exemptions to the regulations in Section 64. The principle underlying that clause is that if the original document is unavailable, destroyed, retained by the opposing party, or controlled by a third party who fails to produce it after recognition, the second evidence must agree. The request for secondary evidence should include all essential facts and should be accompanied by the appropriate affidavit. It should be noted that secondary evidence of document content may not be accepted unless the original is produced in such a way that it is imported in one or more of the cases specified in the case. A document of this type must be certified by someone who is familiar with the author’s handwriting.
The type of evidence we’re dealing with has been referred to as ‘electronic evidence,’ ‘digital evidence,’ or ‘computer evidence,’ among other terms. The term “digital” is frequently used in computing and electronics, particularly when physical-world data is translated to binary numeric form, as in digital audio and digital photography. ‘Information of probative value stored or transferred in binary form; and ‘Information saved or sent in binary form that may be relied on in court’ are two definitions of digital evidence1. The Indian Evidence Act of 1872 defines evidence as a) witness testimony, which includes oral testimony, and b) documentary evidence, which includes electronic records prepared for the court’s inspection. The wording “all documents produced for the scrutiny of the Court” was replaced by “all documents including electronic records generated for the examination of the Court” in Section 3 of the Act.
The provisions of Section 65 B of the Indian Evidence Act, 1872 must be followed while proving electronic evidence. Schedule II of the Information Technology Act of 2000 introduced Section 65 B to the Evidence Act. It’s a rule that governs the admissibility of electronic evidence. It stipulates that any information contained in an electronic document is deemed a document admissible as evidence and original if it fits the requirements set forth in sections 65B (2) to 65B (5) of the Indian Evidence Act, 2000. As a result, each certificate is awarded only when the Section 65B checklist has been completed.
This specific procedure for adducing electronic records in evidence is outlined in Section 65B of the Evidence Act. A duplicate copy (including a printout) of an original electronic record may be utilised under the following technological conditions:
- The computer that created the electronic record had to be in regular use at the time of its creation.
- The type of data contained in the electronic record must have been input into the computer on a regular basis.
- The PC was in good working order, and
- The computer appeared to be in good operating order, and
Section 65B (2) specifies the requirements that must be met in order for information to be classified as a “computer output.” The provision in Section 65B(4), which states that if electronic evidence is to be used in any judicial proceeding, a certificate must be produced that identifies the electronic record and gives particulars of the device used in the production of the electronic record. This certificate must be signed by a person who has a responsible official position in respect to the operation of the relevant device, or by someone in charge of the relevant actions involved. This signature will serve as proof of the certificate’s authenticity.
There are different Supreme Court decisions with regard to the admissibility of electronic evidence under section 65B of Indian Evidence Act:
When the original electronic record is produced, the production of a certificate is not required. If the owner of the computer/tablet/mobile phone comes into the witness box and establishes that the device where the information is first stored is owned/operated by him, the original electronic record can be adduced immediately as evidence. If the “computer” where the electronic record was first stored is part of a “computer network” or “computer system” (as defined under the Information Technology Act, 2000), and bringing such a network/system to the Court is not possible, secondary copies can be made along with the certificate required by Section 65B (4).
It was held that, if an electronic record is used as primary evidence under Section 62 of the Evidence Act, it is admissible in evidence without complying with Section 65-B of the Evidence Act’s restrictions.” This dictum should be interpreted without the words “under Section 62 of the Evidence Act,” according to Justice Nariman.
The Supreme Court’s decision in Arjun v. Kailash will ensure that though it may appear that the Court has strictly interpreted Section 65B(4) which may put litigants in jeopardy especially when the party relying upon the electronic evidence is unable to procure the certificate, the judgment clarifies that if the party has explored all options available under law and despite such efforts is unable to procure the certificate, the Court may excuse such requirement
Section 65B(4) of the Evidence Act provides for the requirement of a certificate of authenticity to satisfy the conditions laid out by the preceding subsection (2) of Section 65B of the Evidence Act. It is to be executed/signed by a person occupying a responsible position in relation to the device through which the data has been produced and it also must identify the electronic record containing the statement. The certificate must also deal with any of the matters to which the conditions for admissibility relate. The certificate is required to prove the integrity of the source as well as the authenticity of the data as it is highly possible to tamper and alter electronic data.
In addition to electronic records being led in evidence, there has also been an increase in reliance on electronic media for other purposes in judicial proceedings. In a current order, the Punjab & Haryana High Court referred to Arjun Khotkar v. Kailash Gorantyal and concluded that Whatsapp chats were going to bear no evidentiary value until a certificate was attached with the same. However, despite various judicial precedents stressing on the importance of the certificate, the certificate has become a mere formality in today’s age. With the requirement of a certificate under Section 65B of the Evidence Act being diluted by the ruling of the Supreme Court in the case of Shafhi Mohammed v State of Himachal Pradesh, it would be interesting to see how the same is clarified by the Supreme Court.
Strict compliance with Section 65B is now mandatory for persons who intend to rely upon emails, websites or any electronic record in a civil or criminal trial before the courts in India. The Indian Evidence Act may be further amended to reject some guidance – not completely for the purposes of presuming prima facie genuineness of the evidence of the photoelectric record – by making further comment a condition that electronic records may be the original information contained in the “computer” itself and copies made therefrom, such “original” being primary evidence while the copies being secondary evidence. Therefore, the certificate in Section 65B(4) is unnecessary if the original document itself is produced. The courts should also be aware that data can be easily faked or altered, and section 65B of the Evidence Act does not address this possibility. When forwarding an email, for example, the person selling goods can rewrite the message. Such alterations are usually undetectable by the receiver, and as a result, a certification from a third party involved in the dispute may not always be a reliable condition to aid in the authenticity of the document. The acceptance of electronic evidence, in addition to benefits, can be complex as long as. It is up to the courts to determine whether or not the evidence meets the three essential legal requirements of authenticity, authenticity, and integrity.
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