Appreciation of Electronic Evidence

Vakul Sharma
© Vakul Sharma, 2017. All rights reserved
Electronic evidence is “any probative
information stored or transmitted in digital
form that a party to a court case may use it at
trial”*

* Casey, Eoghan (2004), Digital Evidence and Computer Crime

User Created Evidence
Subscribers
Records Images

User
Created Videos,
Text
Digital Sound
Evidence files

Web
Databases
pages
Computer Created Evidence
Browser
Network Cache,
sockets Cookies
Backup
Computer
&
Created Surveillance
Registry
Digital tapes
files
Evidence
Activity Email
Logs Headers
 Electronic Evidence - Collection
• Emails

• Digital photographs/videos/social media postings

• ATM transactions

• E-commerce transactions

• Instant Messengers/VoIP/Web-chats

• Internet browsers/search engines key words

• Databases (Call Data Records, etc.)
• Hard discs

• Data Cards/SIM cards/magnetic cards

• Digital devices/servers/IP addresses

• Device memory

• Media storage devices (pen drives,

CD/DVD, etc.
• Routers/Ports
 Appreciation of Evidence
“The process by which a judge concludes
whether or not a fact is proved is called
appreciation of evidence. It is a duty of the
court to appreciate evidence minutely,
carefully, and to analyse it.”

Kajal Sen v.State of Assam AIR 2002 SC617

 Electronic Evidence
Electronic evidence means that the “evidence
which existed in electronic (intangible) form is
being produced in tangible form.
 Electronic Record
S.2(1)(t) “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;
 Human Intervention
The entire process of procuring electronic evidence
is controlled by human agencies.

Can it be manipulated, tampered with?

The science may be infallible, but human action,

which controls the result of the scientific forensic
examination, may be fallible.
 Appreciating Technology
Applying technology and getting desired
results is one thing, but appreciating the
value of the ‘evidence’ is another.

One may lose evidence not because of ‘lack

of technology’, but because of ‘lack of
appreciation of technology’.
Whether judicial officers to act as
technocrats?
Earlier, it was unthinkable to view
judges as technocrats, but over a
period of time, the way judges have
been weaving technology with
judicial wisdom and coming out with
judicial interpretation of
technology…..
 Questions before Judges?

• Did the investigators/litigants take care in

gathering the evidence?

• Could they fake the evidence?

Mohammed Ajmal Mohammad Amir Kasab v
State of Maharashtra & Ors*

The Hon’ble Supreme Court appreciated the

electronic evidence, whether in the form of
CCTV footage, mobile devices, memory
cards, data storage devices, intercepted
communications over VoIP, IP Addresses, etc.
while delivering the judgment.
* (2012) 9 SCC 1
• Detailed forensic examination, including
digital evidence in the form of CCTV
footage, SIM cards, DNA (sweat found on
jackets in inflatable boat), GPS devices,
Thuraya Satellite phones, call interception,
IP Addresses, VoIP, etc.
 Tukaram S.Dighole v.Manikrao Shivaji Kokate*

Hon’ble Supreme Court held that “standard of

proof” in the form of electronic evidence
should be “more accurate and stringent”
compared to other documentary evidence….

* (2010) 4 SCC 329

In Trimex International FZE Ltd.v. Vedanta
Aluminium Ltd. India*

The Court held that in the absence of signed agreement

between the parties, it would be possible to infer from
various documents duly approved and signed by the parties
in the form of exchange of e-mails, letter, telex, telegrams
and other means of telecommunications.

*(2010)3 SCC1
Similarly in Shakti Bhog Foods Ltd. v. Kola Shipping Ltd., (2009) 2
SCC 134
 Sanjay Kumar Kedia v. Narcotics Control Bureau & Anr

CRIMINAL APPEAL NO. 1659 OF 2007

(SLP (Crl.) No. 3892 of 2007)

The company (Xponse Technologies Ltd. And Xpose IT Services Pvt.

Ltd. Headed by Sanjay Kedia) has designed, developed, hosted the
pharmaceutical websites and using these websites, huge quantity of
psychotropic substances (Phentermine and Butalbital) have been
distributed in USA with the help of his associates.

ALADIESPHARMACY.com, EXPRESSPHENTERMINE.com,
FAMILYYONLINEPHARMACY.com
ONLINEEXPRESSPHARMACY.com, SHIPPEDLIPITOR.com
DELIVEREDMEDICINE.COM ,TRUEVALUEPRESCRIPTIONS.COM

That IP address was 203.86.100.76

In Mrs.Nidhi Kakkar v Munish Kakkar*, the
court held “ If person produced text of
information generated through computer, it
should be admissible in evidence, provided
proof was tendered in manner brought through
Evidence Act…”

* (2011)162 PLR113
 Dharambir v.CBI
The Delhi High Court has held:
“Given the wide definition of the words ‘document’
and ‘evidence’ in the amended Section 3 of the
IEA, read with section 2(o) and 2(t), of IT Act, a
hard disc which at any time has been subject to a
change of any kind is an electronic record would
therefore be a document within the meaning of
section 3 of IEA.”
* 148 (2008) DLT 289
Gajraj v. State (NCT of Delhi), (2011) 10 SCC 675:
• The prosecution in this case relied upon the Instrument
Manufactured Equipment Identity (“IMEI”) number of the
deceased’s mobile handset. The handset was found in the accused’s
possession and the call records of the accused’s SIM card showed
that they were made from the mobile bearing the same IMEI number
as that of the deceased’s mobile. In such circumstances, the
Supreme Court noted the “irrefutable fact” that the IMEI number of
a handset is exclusive in nature and no two handsets have the same
IMEI number. Every time a mobile handset is used for making a
call, besides recording the number of the caller as well as the person
called, IMEI number of the handset is also recorded by the service
provider. Therefore, this piece of evidence, establishing the link
between the accused and the deceased, was held by the Supreme
Court to be of ‘conclusive nature’.
• The Supreme Court also relied upon the exclusive nature of IMEI
number in Mohd. Arif v. State (NCT of Delhi), (2011) 13 SCC 621.

21
In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke,
(2015) 3 SCC 123, the evidence relied upon was a voice
recording obtained during a sting operation. The Director,
State Forensic Science Laboratory reported that the
conversation was inaudible and therefore, it was not
considered for spectographic analysis. The counsel for the
prosecution argued that the conversation had been translated
and it had been verified by the panch witnesses. However, the
voice recorder was not subjected to examination and
therefore, the Supreme Court refused to place any reliance on
the translations of the conversation. The Court held that
“source and authenticity are the two key factors for an
electronic evidence”.
K.K Velusamy vs N.Palanisamy 2011 (11) SCC 575
• The Supreme Court held that a compact disc can be
produced as a piece of evidence as per amended definition
of ‘evidence’ in Section 3 and ‘electronic record’ in
Section 2(t) of the Information Technology Act,2000 that
includes a compact disc containing an electronic record of
a conversation. The Court held that it is similar to a
photograph and can be received in evidence under Section
8 of the Evidence Act, 1872. The tests indicated in R.M
Malkani vs. State of Maharastra (AIR 1973 SC 157) for
proving authenticity of recording, in addition to the
requirements of Section 65-B would apply.
Shamsher Singh Verma v State of Haryana*
(Crl.Appeal No. 1525 of 2015)
That compact disc is also a document.
Earlier, the High Court rejected the
application of the accused for getting
exhibited the compact disc, filed in defence
and to get the same proved from FSL.
Supreme Court held that the compact disc is
also a document under s.294(1)Cr.PC.
* 24.11.2015
Section 65 B of IEA
S.65 B Admissibility of Electronic Records

(1)Any information contained in an electronic record

which is printed on a paper, stored, recorded or
copied in optical or magnetic media produced by a
computer shall be deemed to be also 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 further proof or production of
the original …….
(2) The conditions:
(a) the computer output containing the information was
produced by the computer during the period over which
the computer was used regularly to store or process
information for the purposes of any activities regularly
carried over that period by the person having lawful
control over the use of the computer;
(b) during the said period, information of the kind contained
in the electronic record or of the kind from which the
information so contained is derived was regularly fed into
computer in the ordinary course of said activities;
(c) throughout the said period, the computer was
operating properly or if not then in respect of any
period in which it was not operating properly or
was out of operation…..was not as such to affect
the electronic record or the accuracy of its
contents; and
(d) the information contained in the electronic
record reproduces or is derived from such
information fed into the computer in the ordinary
course of said activities.
(3) Where over any period, the function of storing or
processing information …..regularly performed by
computers, whether in combination, or succession,
or by different combinations………..in whatever
order,
all the computers used for that purpose during that
period shall be treated ……as constituting a single
computer
(4) A certificate signed by a person occupying a responsible
official position in relation to operation of the relevant
device or the management of the relevant activities to
include any of the following things:

· identifying the electronic record containing the

statement and describing the manner in which it was
produced

· giving such particulars of any device involved in the

production of that electronic record as may be appropriate
for the purpose of showing that the electronic record was
produced by a computer
The objective behind aforesaid step-by-step
processes is to identify whether the
computer in question has properly
processed, stored and reproduced whatever
information it received.
 State v. Mohd. Afzal*
Held. That under S.65 B, computer generated
electronic records is an admissible evidence at trial
if proved in manner specified by section.
Electronic record in the form of a print
out…..compliance with sub-section Sub-section
(1) and (2) of section 65 B is enough to make
admissible and prove electronic records. This
conclusion flows out, even from the language of
sub-section (4).
* 107(2003) Delhi Law Times 385 (DB)
 P.Padmanabh v. Syndicate Bank Ltd., Bangalore

The High Court of Karnataka held:

“Clear admission of malfunctioning of either
ATM machine or computer…..provisions of
section 65B cannot be pressed into service
by plaintiff”.

* 2008 (2) Kar.L.J. 153

In State v. Navjot Sandhu*…It is not in dispute that the information
contained in the call records is stored in huge servers which cannot be
easily moved and produced in the court…..Hence, printouts taken from
the computers/servers by mechanical process and certified by a
responsible official of the service providing company can be led in
evidence through a witness who can identify the signatures of the
certifying officer or otherwise speak of the facts based on his personal
knowledge. Irrespective of the compliance with the requirements of
section 65B, which is a provision dealing with admissibility of
electronic records, there is no bar to adducing secondary evidence
under the other provisions of the Evidence Act, namely sections 63 and
65. It may be noted that the certificate containing the details in sub-
section (4) of section 65B is not filed in the instant case, but that does
not mean that secondary evidence cannot be given in the circumstances
mentioned in the relevant provisions, namely sections 63 and 65.

* (2005)11 SCC 600

Irrespective of the compliance with the
requirements of section 65B, which is a
provision dealing with admissibility of
electronic records, there is no bar to
adducing secondary evidence under the
other provisions of the Evidence Act,
namely sections 63 and 65.
• In Anvar PV v P.K. Basheer & Ors. [CA No. 4226 of 2012]*
September 18, 2014
Any documentary evidence by way of an electronic record under the
Evidence Act, in view of Sections 59 and 65A,can be proved only in
accordance with the procedure prescribed under Section 65B. Section 65B
deals with the admissibility of the electronic record. The purpose of these
provisions is to sanctify secondary evidence in electronic form, generated
by a computer. It may be noted that the Section starts with a non obstante
clause. Thus, notwithstanding anything contained in the Evidence Act,
any information contained in an electronic record which is printed on a
paper, stored, recorded or copied in optical or magnetic media produced
by a computer shall be deemed to be a document only if the conditions
mentioned under sub-Section (2) are satisfied, without further proof or
production of the original. The very admissibility of such a document, i.e.,
electronic record which is called as computer output, depends on the
satisfaction of the four conditions under Section 65B(2).
It is further clarified that the person need only to state in the certificate
that the same is to the best of his knowledge and belief. Most importantly,
such a certificate must accompany the electronic record like computer
printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive,
etc., pertaining to which a statement is sought to be given in evidence,
when the same is produced in evidence.

All these safeguards are taken to ensure the source and authenticity, which
are the two hallmarks pertaining to electronic record sought to be used as
evidence. Electronic records being more susceptible to tampering,
alteration, transposition, excision, etc. without such safeguards, the whole
trial based on proof of electronic records can lead to travesty of justice.
• Tomaso Bruno v. State of UP, Supreme Court
decision dated 20 January 2015) in Criminal Appeal
No. 142 Of 2015).
• >The trial court in its judgment held that non-
collection of CCTV footage, incomplete site plan,
non-inclusion of all records and SIM details of
mobile phones seized from the accused are instances
of faulty investigation and the same would affect the
prosecution case.

38
• Non- production of CCTV footage, non-
collection of call records (details) and SIM
details of mobile phones seized from 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.
 Harpal Singh @ Chhota v State of Punjab
[Crl.Appeal 2539 of 2014]

As apparently the prosecution has relied

upon the secondary evidence in the form of
printed copy of the call details, even assuming
that the mandate of Section 65B(2) had been
complied with, in absence of a certificate
under Section 65B(4), the same has to be
held inadmissible in evidence.
 Kundan Singh v State*

“….we do not accept the legal ratio in Ankur Chawla v CBI

wherein it has been held that the certificate under section 65B
must be issued when the computer output was formally filed
in the court and certificate under section 65B cannot be
produced when the evidence in form of electronic record is
tendered in the court as evidence to be marked as an exhibit.
The said certificate can be produced when the electronic
record is to be admitted and taken on record, i.e., when the
prosecution, defence or a party to the civil litigation wants the
electronic record to be marked as an exhibit and read in
evidence.”
*2015SCC OnLine Del 13647 .
For the purpose of admissibility of electronic record,
a three prong test is important:
1. Document in question – is an electronic record
[as defined under S.2(1)(t) of the IT Act, 2000],
2. Produced by a computer [as defined under
S.2(1)(i) of the IT Act, 2000], and
3. Accompanied by a certificate, fulfilling the
conditions laid down S.65 (B)(2)-(B)(4).
In SIL Import, USA v. Exim Aides Silk
Importers*, the Hon’ble Supreme Court
observed the need of the judiciary to interpret
a statute by making allowances for any
relevant technological change that has
occurred.

* (1999) 4 SCC 567

 Thanks

© Vakul Sharma, 2017. All rights

reserved
Email:[email protected]