Appreciation of Electronic Evidence-PDF


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Appreciation of Electronic Evidence-PDF

  2. 2. APPRECIATION OF E E-EVIDENCEDigital evidence or electronic evidenceis any probative information stored ortransmitted in digital form that a partyto a court case may use at trial.Before accepting digital evidence acourt will determine if the evidence isrelevant, whether it is authentic, if it ishearsay and whether a copy isacceptable or the original is required.
  3. 3. APPRECIATION OF E E-EVIDENCEE-EVIDENCE IS FOUND IN:e-mailsdigital photographsATM transaction logsword processing documentsinstant message historiesfiles saved from accounting programsspreadsheetsinternet browser historiesdatabases
  4. 4. APPRECIATION OF E E-EVIDENCECont... Contents of computer memory Computer backups Computer printouts Global Positioning System tracks Logs from a hotel’s electronic door locks Digital video or audio files
  5. 5. APPRECIATION OF E E-EVIDENCEDigital Evidence:>tends to be more voluminous>more difficult to destroy>easily modified>easily duplicated>potentially more expressive, and>more readily available
  6. 6. APPRECIATION OF E E-EVIDENCE>Computer forensics is a branch offorensic science pertaining to legalevidence found in computers and digitalstorage mediums.>Computer forensics is also known asdigital forensics.>The goal of computer forensics is toexplain the current state of a digitalartifact.
  7. 7. APPRECIATION OF E E-EVIDENCEThe term digital artifact can include:>a computer system>storage medium (hard disk or CD-ROM)>an electronic document (e.g. an emailmessage or JPEG image) or>even a sequence of packets movingover a computer network network.
  8. 8. APPRECIATION OF E E-EVIDENCE>Digital Evidence is “information ofprobative value that is stored ortransmitted in binary form”.>Evidence is not only limited to thatfound on computers but may alsoextend to include evidence on digitaldevices such as telecommunication orelectronic multimedia devices.
  9. 9. APPRECIATION OF E E-EVIDENCE The Information Technology Act is based on the United Nations Commission on International Trade Law (UNCITRAL) model Law on Electronic Commerce Commerce. Amendments to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Bankers Book Evidence Act 1891 provides the legislative framework for transactions in electronic world.
  10. 10. APPRECIATION OF E E-EVIDENCEThe definition of evidence has been amendedto include electronic records.The definition of documentary evidence hasbeen amended to include all documents,including electronic records produced forinspection by the court.Section 3 of the Evidence Act, 1872 definesevidence as under:"Evidence" - Evidence means and includes: includes:-1)-------------2) all documents including electronic recordsproduced for the inspection of the court.
  11. 11. APPRECIATION OF E E-EVIDENCE The term electronic records has been given the same meaning as that assigned to it under the IT Act IT Act provides for "data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer computer-generated microfiche".
  12. 12. APPRECIATION OF E E-EVIDENCEThe definition of admission (Section 17 of theEvidence Act) has been changed to include astatement in oral, docume cumentary or electronic formwhich suggests an inference to any fact at issueor of relevance.New Section 22A has been inserted into EvidenceAct to provide for the relevancy of oral evidenceregarding the contents of electronic records.It provides that oral admissions regarding thecontents of electronic records are not relevantunless the genuineness of the electronic recordsproduced is in question
  13. 13. APPRECIATION OF E E-EVIDENCENew sections 65A and 65B are introduced to theEvidence Act under the Second Schedule to the ITAct.Section 65A provides that the contents of electronicrecords may be proved in accordance with theprovisions of Section 65B.Section 65B provides that notwithstanding anythingcontained in the Evidence Act, any informationcontained in an electronic, is deemed to be adocument and is admissible in evidence withoutfurther proof of the originals production, provided that ginalsthe conditions set out in Section 65B are satisfied.
  14. 14. APPRECIATION OF E E-EVIDENCESection 65B(1) states that if any information containedin an electronic record produced from a computer(known as computer output) has been copied on to a utput)optical or magnetic media, th such electronic record dia, thenthat has been copied shall be deemed to be also adocument subject to conditions set out in Section65B(2) being satisfied.Both in relation to the information as well as thecomputer in question such document shall beadmissible in any proceedings when further proof orproduction of the original as evidence of any contents nalof the original or of any fact stated therein of whichdirect evidence would be admissible.
  15. 15. APPRECIATION OF E E-EVIDENCEThe conditions specified in Section 65(B)(2) are:1. Firstly, the computer output containing theinformation should have been produced by thecomputer during the period over which the computerwas used regularly to store o process information for orthe purpose of any activities regularly carried on over tivitiesthat period by the person having lawful control overthe use of the computer.2. The second requirement is that it must be shownthat during the said period th information of the kind riod thecontained in electronic record or of the kind fromwhich the information contained is derived wasregularly fed into the compu in the ordinary course omputerof the said activity.
  16. 16. APPRECIATION OF E E-EVIDENCE3. A third requirement is t nt that during the materialpart of the said period, the computer wasoperating properly and that even if it was notoperating properly for som time that break did somenot affect either the recor or the accuracy of its recordcontents.4. The fourth requiremen is that the information ementcontained in the record should be areproduction or derived fr ived from the information fedinto the computer in the ordinary course of thesaid activity.
  17. 17. APPRECIATION OF E E-EVIDENCEUnder Section 65B(4) the certificate whichidentifies the electronic record containing thestatement and describes the manner in which it ribeswas produced giving the particulars of thedevice involved in the pro he production of that recordand deals with the conditions mentioned inSection 65(B)(2) and is signed by a personoccupying a responsible official position inrelation to the operation of the relevant deviceshall be evidence of any matter stated in thecertificate’.
  18. 18. APPRECIATION OF E E-EVIDENCEIn Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal11) sections 65A and 65B of Evidence Act, 1872were analyzed.The court held that the physical presence ofperson in Court may not be required for purposeof adducing evidence and the same can be donethrough medium like video conferencing.Sections 65A and 65B provide provisions forevidences relating to electronic records andadmissibility of electronic records, and thatdefinition of electronic records includes videoconferencing.
  19. 19. APPRECIATION OF E E-EVIDENCEState of Maharashtra v Dr Prafu B Desai (AIR 2003 SC 2053) Prafulinvolved the question whether a witness can be examinedby means of a video conference.The Supreme Court observed that video conferencing is an rved tadvancement of science and technology which permitsseeing, hearing and talking with someone who is notphysically present with the same facility and ease as if they e samwere physically present.The legal requirement for the presence of the witness does pnot mean actual physical presence.The court allowed the examination of a witness throughvideo conferencing and concluded that there is no reasonwhy the examination of a witness by video conferencingshould not be an essential part of electronic evidence.
  20. 20. APPRECIATION OF E E-EVIDENCEIn Bodala Murali Krishna Vs. Smt. Bodala Prathima hna V(2007 (2) ALD 72) the court held that, “…theamendments carried to the Evidence Act byintroduction of Sections 65 and 65-B are in 65-Arelation to the electronic record. Sections 67 67-Aand 73-A were introduced as regards proof and Averification of digital signatures. As regardspresumption to be drawn about such records,Sections 85-A, 85-B, 85-C, 88 and 90-A were C, 88-Aadded. These provisions are referred only todemonstrate that the emphasis, at present, is torecognize the electronic records and digitalsignatures, as admissible pieces of evidence.”
  21. 21. APPRECIATION OF E E-EVIDENCEIn Dharambir v Central Bureau of Investigation (148 (2008)DLT 289) , the court arrived at the conclusion that whenSection 65B talks of an electronic record produced by acomputer referred to as the co he computer output) it would alsoinclude a hard disc in which information was stored or was ich inearlier stored or continues to be stored.It distinguished as there being two levels of an electronicrecord. One is the hard disc which once used itselfbecomes an electronic record in relation to the information cordregarding the changes the hard disc has been subject toand which information is retrievable from the hard disc byusing a software programme.The other level of electronic record is the active accessible nic reinformation recorded in the hard disc in the form of a textfile, or sound file or a video file etc. Such information that is eoaccessible can be converted or copied as such to anothermagnetic or electronic device like a CD, pen drive etc.Even a blank hard disc which contains no information butwas once used for recording information can also be copied ing inby producing a cloned had or a mirror image.
  22. 22. APPRECIATION OF E E-EVIDENCEIn State (NCT of Delhi) v Navjot Sandhu (AIR 2005 SC3820) , there was an appeal against conviction followingthe attack on Parliament on December 13 2001.This case dealt with the proof and admissibility of mobiletelephone call records.While considering the appeal against the accused forattacking Parliament, a submission was made on behalfof the accused that no reliance could be placed on themobile telephone call records, because the prosecutionhad failed to produce the relevant certificate underSection 65B(4) of the Evidence Act.The Supreme Court concluded that a cross cross-examinationof the competent witness acquainted with the functioning s acqof the computer during the relevant time and the manner he rein which the printouts of the call records were taken was csufficient to prove the call records.
  23. 23. APPRECIATION OF E E-EVIDENCEIn Jagjit Singh v State of Haryana the speakerof the Legislative Assembly of the State ofHaryana disqualified a member for defection.(2006) 11 SCC 1When hearing the matter, the Supreme Courtconsidered the appreciation of digital evidencein the form of interview tr iew transcripts from the ZeeNews television channel, the Aaj Tak television annel,channel and the Haryana News of PunjabToday television channel.
  24. 24. APPRECIATION OF E E-EVIDENCEThe court determined that the electronic evidenceplaced on record was admissible and upheld thereliance placed by the speaker on the recordedinterview when reaching the conclusion that thevoices recorded on the CD w were those of the personstaking action.The Supreme Court found n infirmity in the speakers und noreliance on the digital evidence and the conclusionsreached by him.The comments in this case i indicate a trend emergingin Indian courts: judges are beginning to recognizeand appreciate the importance of digital evidence inlegal proceedings.
  25. 25. APPRECIATION OF E E-EVIDENCE In Twentieth Century Fox Film Corporation v. NRI Film Production Associates (P) Ltd. (AIR 2003 Kant 148) certain conditions have been laid down for video-recording of evidence: recording 1. Before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or Video an undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. (Identification affidavit).
  26. 26. APPRECIATION OF E E-EVIDENCE 2. The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification. 3. The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media. 4. The witness should not plead any inconvenience on account of time different between India and USA.
  27. 27. APPRECIATION OF E E-EVIDENCE 5. Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard. 6. Learned Judge is to record such remarks as is material regarding the demur of the witness while on the screen. 7. Learned Judge must note the objections raised during recording of witness and to decide the same at the time of arguments.
  28. 28. APPRECIATION OF E E-EVIDENCE8. After recording the eviden evidence, the same is to be sentto the witness and his signature is to be obtained inthe presence of a Notary Pu ry Public and thereafter it formspart of the record of the suit proceedings.9. The visual is to be recorded and the record wouldbe at both ends. The witnes also is to be alone at the itnesstime of visual conference an notary is to certificate to ce andthis effect.10. The learned Judge may also impose such otherconditions as are necessary in a given set of facts.11. The expenses and the arrangements are to beborne by the applicant who wants this facility.