E-evidence
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This article is written by Sneha Mahawar from Ramaiah Institute of Legal Studies. The article discusses the concept of the Admissibility of Evidence.

Table of Contents

Introduction

The term “admissibility” means the state or quality of being admissible or permissible. In the legal sense, the term “evidence” means anything admitted by a Court to prove or disprove alleged matters of fact in a trial. Thus, the admissibility of evidence means any document, testimony, or tangible evidence used in a Court of Law. All evidence is not allowed in the Court, only those evidence which is reliable and relevant are admitted in the Court of Law. Evidence is introduced to a judge or a jury to prove a point or an important element in a case. 

Definition of Admission 

The term ‘admission’ is defined in Section 17 of the Indian Evidence Act, 1872. In general sense, the term admission means power or permission to enter, admittance, entrance, access, the power to approach. In the legal sense, acquiescence or concurrence in a statement made by another, and distinguishable from a confession in that an admission presupposes prior inquiry by another, but a confession may be made without such inquiry. A fact, point, or statement admitted; as the admission made out of Court are received in evidence. 

Principles regarding Admission 

As mentioned in Basant Singh v. Janki Singh, 1966, the principles regarding admission are:

  • It states that there remains no difference between the admission of a party in pleading and other admissions thereafter.
  • The admission made by a party in a plaint has to be duly signed and verified by that party which could be used as evidence against that party in another suit, but the same could not be termed as conclusive.
  • An admission cannot be divided into parts and can only be examined as a whole.
  • An admission can only be read in its entire form and no statements can be taken out of the context to form an admission of a certain fact.
  • An admission binds the maker to the facts of the case.
  • An admissibility of a plea of guilt can be determined only if the plea is recorded in the words used by the accused or the person charged with an offence.
  • For an admission to have a substantive evidence effect, it should be voluntary in nature. Any admission which is made in ignorance of rights or under restraint in which a person is influenced, whether by lawful or unlawful forceful compulsion of their liberty by implementation of physical enforcement; legally for the incurring of civil liability, of a citizen’s arrest, or of subrogation, or illegally for the committing of an offence, of forcing a contract, or of using threats cannot be considered an admission.
  • Admissions are limited to being only prima facie proof (not needing further proof unless contrary evidence is shown or produced in the Court of Law) and do not carry a conclusive value.
  • Admissions which are clear, in the words of the accused or the person charged with an offence are considered as the best proof of the facts submitted.

Definition of Evidence 

The term evidence is defined in Section 3 of the Indian Evidence Act, 1872. In the general sense, the term evidence means facts or observations presented in support of an assertion. In the legal sense, the term evidence can be described as anything admitted by a Court to prove or disprove alleged matters of fact in a trial. 

Relevance of Admission

The terms ‘Relevance’ and ‘Admissibility’ are often considered as synonyms but the legal implication of both the words are very distinct. There’s a very prominent phrase to throw light on the difference between the two words. All admissible evidence is relevant but all relevant evidence is not admissible. The word relevance has a broader scope as compared to the word admissibility. Relevance is the genus of which admissibility is the species. These two words can be distinguished from one another in the following manner:

  1. Relevancy is when the facts are so related as to render the existence or non-existence of other facts probable according to a common course of events or human conduct, they are called relevant. Whereas, admissibility is when facts have been declared to be legally relevant under the Indian Evidence Act, 1872 they become admissible.
  2. Relevancy is founded on logic and human experience. Whereas, admissibility is founded on Law, not on logic.
  3. The question regarding relevancy has been enunciated in Section 5 to Section 55 of the Indian Evidence Act, 1872 Whereas, the question of admissibility is provided in Section 56 of the Indian Evidence Act, 1872. 
  4. Relevancy signifies as to what facts are necessary to prove or disprove a fact in issue. Whereas, admissibility is a decisive factor between relevance and proof.
  5. Relevancy merely implies the relevant facts. Whereas, admissibility implies what facts are admissible and what is not admissible.
  6. Relevancy is the cause. Whereas, admissibility is the effect.
  7. In relevancy, the Court may apply its discretion. Whereas, in admissibility, there is no scope for the Court to apply discretion.
  8. All admissible facts are relevant. But, all relevant facts are not admissible. Only legally relevant facts are admissible.

Types of Evidence

Various kinds of evidences according to the Indian Evidence Act, 1872 are:

Oral Evidence 

Oral evidence is described in Section 60 of the Indian Evidence Act, 1872. These are the evidence which the person giving has himself seen or heard. It is positive in nature and creates a great impact on the case and establishes facts of the particular case. Such evidence is direct in its nature.

Documentary Evidence 

Documentary evidence is described in Section 3 of the Indian Evidence Act, 1872. Such evidence is documentary evidence which is permitted by the Court of Law for inspection. Thus, all the documents permitted by the Court for inspection can be termed as documentary evidence.

Primary Evidence

Primary evidence is described in Section 62 of the Indian Evidence Act, 1872. Primary evidence is the most superior kind of evidence and is admissible and permissible in the very first place. This evidence plays a vital role in the case.

Secondary Evidence

Secondary evidence is described in Section 63 of the Indian Evidence Act, 1872. These evidence are admissible in Court in case the primary evidence is missing. It is known as secondary evidence because it is inferior to the primary evidence and in case of a conflict the primary evidence prevails.

Real Evidence

Real evidence is evidence which is obtained by inspection of a particular physical object and not given by any witness in particular.

Hearsay Evidence 

Hearsay evidence is when a person has not particularly himself seen or heard something in the happening of that event but got the knowledge of certain happening of an event from someone else. This kind of evidence is the weakest kind of evidence and is admissible only if it is backed up by another strong evidence and can be proved.

Judicial Evidence 

Judicial evidence is evidence received by the Court in proof or disproof of facts before it. The statements provided by the witnesses are also termed as judicial evidence. This is the evidence produced directly in front of the magistrate.

Non-judicial Evidence

Non-judicial evidence is the evidence which is confessed outside the Court and not in front of the magistrate. This evidence is only admissible if it could be proved in the Court later as judicial evidence.

Direct Evidence

Direct evidence is the kind of evidence which establishes a particular fact. This evidence plays a vital role in deciding the matter in a particular issue. For example, a testimony delivered by witnesses.

Indirect or circumstantial Evidence

This kind of evidence is not a definite proof but a general idea of what possibly could have happened in a given circumstance. This evidence attempts to prove the facts contained in the issue by providing other facts and affords an instance as to its existence.

Conditions of Admissibility of Evidence in Court

Section 20 of the Indian Evidence Act, 1872 states about the admissions of persons referred to or by a party to a particular suit. This section brings another exception to the general principle of admissions made by strangers to the suit. Admissions made by a third party are considered relevant and are admissible when a party refers another to him for information in regard to uncertain or disrupted manner.

There are two basic factors that are considered when determining whether evidence is admissible or not:

Relevant

The evidence must prove or disprove an important fact in the criminal case. If the evidence doesn’t relate to a particular fact, it is considered “irrelevant” and is therefore inadmissible and is also not permissible in Court.

Reliable

Reliability refers to the credibility of a source that is being used as evidence. This usually applies to witnesses’ testimonies.

K.M. Singh v. Secretary Indian University Association 1992 

In this case, it was held that:

  • Section 20 is an exception to the general rule i.e., ‘admission by a party to the proceeding or his agent’ which is laid down in Section 18.
  • Section 20 deals with a class of vicarious admissions.
  • It states that a third person’s opinion is taken into consideration when the third person is referred to by one party in the matter of dispute.
  • The third person’s opinion is considered for the reason that one party in dispute approves of the third party’s opinion while anticipating the other party to enquire.
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What constitutes admissible evidence under the Indian Evidence Act, 1872?

Evidence under the Indian Evidence Act, 1872 means and includes:

  1. All the statements which are permissible and admissible by the Court made by the witnesses before it or in front of the magistrate, regarding the matters of a dispute under question.
  2. All the documents produced for inspection as per the order of the Court including the electronic records.

What kind of evidence are inadmissible in Court 

What are the factors that determine the inadmissibility of the evidence?

The factors determining the admissibility of the evidence in Court proceedings are:

Unfairly Prejudicial 

The word prejudicial means tending to convince based on past history rather than on evidence about the case in hand. The evidence which is unfairly harmful, detrimental, injurious, or biased towards the case without establishing any proper fact and outraging the jury or the judge without providing any material fact but conjecture is often excluded from the Court proceedings. For example, a child’s photograph around the victim’s body.

Wastes Time 

During trials, the advocates representing their clients often provide with evidence or witness which can lead to the wasting of time of the Court. Such witnesses or evidence are excluded from a Court proceeding. For example, it is a waste of time for the Court if the advocate produces twenty separate people to prove that the accused is an honest person. 

Misleading 

Evidence which could draw away the jury’s or the judge’s attention away from the main issue or essence of the case such evidence is considered as misleading evidence and excluded from the Court proceedings. For example, a minor’s gender in a case of rape is irrelevant because the main fact to be established is whether rape was conducted or not on the minor and it is not important to know whether the minor was of which gender.

Hearsay evidence

Hearsay evidence is when a person has not particularly himself seen or heard something in the happening of that event but got the knowledge of certain happening of an event from someone else. Such evidence is inadmissible because any human can lie and blame the other person for saving someone or to escape from punishment. 

For example, if ‘A’ a witness claims that another witness ‘B’ said the defendant hit the victim with a rod and the prosecutor wants to use the testimony to prove that the defendant hit the victim, that testimony is considered hearsay.

Character 

The evidence produced by the plaintiff party to prove the character of the defendant has certain traits which are excluded from the Court proceedings unless the defendant introduces the evidence of character first in the hearing.

Expert Testimony

Expert testimony is only admissible when originally given by an expert and not by a layman. A layman cannot provide expert testimony, a layman’s testimony is not admissible.

Privileges 

The Court does not allow any kind of privilege information obtained by any attorney-client privilege as well as any other self-incriminating information. Such information is confidential and would perjure the attorney and is inadmissible in the Court of law. 

Illustration of evidence which is considered inadmissible in Court

‘A’ sold a car to ‘B’. ‘B’ asked ‘A’ whether the car sold by ‘A’ to ‘B’ functions properly or not. ‘A’ replied to ‘B’ saying- “Go and ask ‘E’ as he knows all about it”. Thus, a statement made by ‘E’ would be admissible in Court. But in case ‘B’ himself went and asked ‘E’ whether the car is functional or not without ‘A’ telling him to do so. Then the statement made by ‘E’ would be inadmissible in Court.

Section 136 of the Act

Section 136 of the Indian Evidence Act, 1872 states that:

Only the judge can decide whether evidence is admissible or relevant or permissible in Court. The judge may ask an individual to explain in what way or manner the individual person proposes to show proof or establish a fact. The judge would allow the proof only if it is relevant enough to the matters in dispute and if the judge is satisfied with the reaction of the particular individual. The aspect of relevance supersedes the aspect of admissibility in the Court proceedings.

Admissibility of Evidence in Courts

  • In Civil proceedings- In Civil proceedings, an element of a case is weighed by the standard or superiority or power of the evidence. However, the evidence produced is generally government documents such as leases, sale deeds, rent agreements, gift deeds, etc. 

  • In Criminal proceedings- In Criminal proceedings, the evidence is used to prove whether the defendant in a disputed matter is guilty or not beyond a reasonable doubt. However, in criminal proceedings evidence can only be used when it is considered admissible and relevant to the facts or issues or matter or any other factor of dispute. The decision of whether an evidence is admissible or not is on the Court’s discretion.

Admissibility of Electronic Evidence under Act 

Introduction

The Indian Evidence Act, 1872 was amended by manifestation of Section 92 of Information Technology Act, 2000 (Before the amendment). Section 3 of the Indian Evidence Act, 1872 was also amended that previously it only included all the documents which were produced for inspection in the Court as evidence but after the amendment the Act said that it included all the documents including the electronic records which were produced for inspection in the Court as evidence. And in regards to the documentary evidence stated in Section 59 the words ‘Contents of documents’ and ‘Contents of documents or electronic records’ were substituted by Section 65A and Section 65B to include the admissibility of the electronic evidence and other electronic records. Thus, just like other evidence, electronic evidence or digital evidence is also considered as evidence admissible in Court if it is relevant and not against any factors of inspection of the Court.

What is an E-evidence?

The term e-evidence can be expanded as electronic evidence. It is also said to be digital evidence. In today’s world use of the internet, mobile phones, mobile applications, laptops, computers, tablets, ipads, etc. is very common. Almost every next person creates a profile on Facebook, Snapchat, WhatsApp, Twitter, Instagram, etc. There is continuous monitoring of all the activities and events taking place in a particular area by the guards and policemen via CCTV cameras and other devices. The footages or snaps or call records obtained from sources that are authentic in nature and can be produced before the Court to prove the defendant guilty and are relevant and admissible are termed as e-evidence. Examples of electronic evidence are data stored in a computer system, information transmitted electronically through any communication network, etc.

Sources of E-evidences

Electronic devices are used on an everyday basis and are an integral part of the daily life of an individual. Some of its sources are:

Digital/Video camera 

This source can provide pictures, videos and files stored locally or on the media card of the camera. 

Cell phone 

Such a source can provide with all the call logs, text messages, applications used, social media accounts and everything from all other categories in that particular cell phone about whom it belongs to.

Computer/Laptop

Computers or laptops provide data like social media accounts, internet search history, documents saved in, email accounts if any and all other information present within the system.

Mobile device 

Such a source can provide with all the call logs, text messages, pictures, videos, files stored, applications used, social media accounts and everything from all other categories in that particular cell phone about whom it belongs to.

File storage 

These devices include hard drive, thumb drive, optical media, and Pendrive. These devices contain plenty of information of all sorts and are highly useful.

Wearables 

These are the devices such as fit bits and Mi watches etc. They inform about an individual’s location. This is an essential source to track down people.

Automated Licence Plate Readers 

They are termed as LPR. These show the pictures of the car, metadata and geolocation.

In-car cameras

This kind of evidence provides videos of the events of the activities inside a car or any other vehicle inside which it is placed.

Bord worn cameras

This kind of evidence provides videos of the events of the activities wherever the person wearing such a device travels.

Drones 

This kind of evidence is also known as unmanned aerial systems. Such evidence captures the videos of places it is flown towards.

Closed-circuit television (CCTV) 

This evidence provides videos and places where it is placed. It captures all the necessary and other relevant minute details and can be viewed later and can be used as strong evidence.

Interview recording room system

Such a source of obtaining evidence helps to monitor the behaviour of people present inside the room and take videos of activities and events of the area in which it is placed.

Section 65A and Section 65B of the Indian Evidence Act

Section 65A and Section 65B were added by the Information Technology Act, 2000 substituting Section 59 of the said Act. Section 65A is always read along with Section 65B as Section 65A contains the contents of electronic records which have to be proved by the provisions mentioned in Section 65B. Section 65B states the admissibility of electronic records. 

It states that any record which is contained in any electronic or digital records which are printed on a sheet, copied from somewhere, stored in a particular place or recorded in a device or copied in any visual media shall be termed as a document. And if the terms specified are satisfied by such a document it shall be necessarily admissible in Court proceedings without any proving of such document in the future. 

  • Section 65A 

Section 65A of the Indian Evidence Act is always read along with Section 65B of the Indian Evidence Act, 1872 as Section 65A of the Act contains the contents of electronic records which have to be proved by the provisions which are mentioned in Section 65B of the Act. 

  • Section 65B 

Section 65B of the Indian Evidence Act states the admissibility of electronic records in Court proceedings. It states that any record which is contained in any electronic or digital format shall be termed as a document. And if the terms specified in Section 65B of the said Act are satisfied by such a document then it shall be necessarily admissible in Court proceedings without any proving of such document in the future. 

The conditions of Section 65B are:

  1. The information shall be produced during the regular course of activities by the person having lawful control over the use of the computer.
  2. The information has been regularly fed into the computer in the ordinary course of the said activities.
  3. Throughout the material part of the said period, the computer was operating properly or the improper operation was not of such nature to affect the electronic or digital record or the accuracy of its contents produced.
  4. The information contained in the electronic or digital records is derived from such information fed into the computer in the ordinary course of an individual’s activities.

Case laws on E-Evidence

  • Jagjit Singh v. State Of Haryana (2006) 11 SCC 

In this case, the speaker of the legislative assembly, Haryana disqualified a member for defection. A case was instituted. While hearing the matter, the Supreme Court of India took into consideration the digital evidence in the form of transcripts from the Zee News television channel, the Aaj Tak channel and the Haryana News of Punjab Today television channel. The Court held that the electronic evidence taken into the record was relevant to the matter in dispute and was said to be admissible. 

  • State (NCT of Delhi) v. Navjot Sandhu (AIR 2005 SC 3820)

In this case, an appeal was filed in the Supreme Court of India against the conviction of people followed by the attack on the Parliament on the 13th of December, 2001. This case dealt with the matter of whether the proof and admissibility of mobile or telephone call records are valid or not. 

The Supreme Court of India held that a cross-examination of the competent witness familiar 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 enough to prove the call records no certificate under Section 65B(4) of the Evidence Act, 1872 is compulsory if it can be proved effectively in the cross-examination of the witness.

  • Anvar P.V. v. P.K. Basheer And Others (2014 10 SCC 473) on 18th September

In this case, the Supreme Court of India has interpreted Section 22A, Section 45A, Section 59, Section 65A and Section 65B of the Indian Evidence Act, 1872. The Supreme Court of India settled all the conflicting judgments and controversies of all the other lower courts including various High Courts and the Trial Courts. It held that the secondary data found in CD’s, DVD’s, and Pendrive are not admissible in the Court proceedings without a proper authentic certificate according to Section 65B(4) of the Indian Evidence Act, 1872. The Court further explained any electronic evidence without the certificate cannot be made admissible and be allowed to be proved in the Court by any oral evidence and also by any expert’s opinion according to Section 45A of the Indian Evidence Act, 1872. 

  • Abdul Rahaman Kunji v. State of West Bengal (Wb/0828/2014)

In this case, while deciding the admissibility of an electronic record that is an email it was stated that an email which can be downloaded and printed directly from the email account of an individual can be proved by Section 65B along with Section 88A of the Indian Evidence Act, 1872. The High Court of Calcutta passed a judgment that the testimony of a witness to carry out certain procedures to download and print the same is sufficient enough to prove the electronic communication and can be termed as electronic or digital evidence if it satisfies other factors of admissibility. 

Conclusion 

Hence, an evidence is admissible in Court proceedings only if it is relevant to the facts or issues or matters in dispute. If evidence is admissible but irrelevant to the case then it is only a waste of time for the Court. Thus, evidence shall be relevant and shall also satisfy all the specified provisions of admissibility then only it can be admissible in the Court of Law. As of the present situation, even the electronic or digital records are admissible as evidence as they are reliable, relevant and obtained from an authentic source of electronic communication. 

Evidence is the most integral and indispensable element of any proceedings either criminal or civil and shall be safeguarded from any kind of manhandling or else it might turn inadmissible in the Court.


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