Useful article on e evidnce

EEVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE
USEFUL
ARTICLE
ON
ELECTRONIC (DIGITAL) EVIDENCE
&
ADMISSIBILITY
WITH HON'BLE SC & HC JUDGMENT
A P RANDHIR

1. INTRODUCTION
''Literary education is of no value, if it is not able to build up a
sound character.'' ~ Mahatma Gandhi
Due to enormous growth in e-governance throughout the Public &
Private Sector and e-commerce activities Electronic Evidence have
involved into a fundamental pillar of communication, processing and
documentation. The government agencies are opening up to introduce
various governance policies electronically and periodical filings to
regulate and control the industries are done through electronic means.
These various forms of Electronic Evidence/ Digital Evidence are
increasingly being used in the judicial proceedings. At the stage of trial,
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 CD, DVD,
hard disk/ memory card data, website data, social network
communication, e-mail, instant chat messages, SMS/MMS and computer
generated documents poses unique problem and challenges for proper
authentication and subject to a different set of views. The Indian
Evidence Act has been amended by virtue of Section 92 of Information
Technology Act, 2000 (Before amendment). Section 3 of the Act was
amended and the phrase “All documents produced for the inspection of
the Court” were substituted by “All documents including electronic

records produced for the inspection of the Court”. Regarding the
documentary evidence, in Section 59, for the words “Content of
documents” the words “Content of documents or electronic records”
have been substituted and Section 65A & 65B were inserted to
incorporate the admissibility of electronic evidence. Under the provisions
of Section 61 to 65 of the Indian Evidence Act, the word “Document or
content of documents” have not been replaced by the word “Electronic
documents or content of electronic documents”. Thus, the intention of the
legislature is explicitly clear i.e. not to extend the applicability of section
61 to 65 to the electronic record. It is the cardinal principle of
interpretation that if the legislature has omitted to use anyword, the
presumption is that the omission is intentional. It is well settled that the
Legislature does not use any word unnecessarily. In this regard, the
Apex Court in Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa
held that “…Parliament is also not expected to express itself
unnecessarily. Even as Parliament does not use any word without
meaning something, Parliament does not legislate where no legislation is
called for. Parliament cannot be assumed to legislate for the sake of
legislation; nor indulge in legislation merely to state what it is
unnecessary to state or to do what is already validly done. Parliament
may not be assumed to legislate unnecessarily.” The intention of the
legislature is to introduce the specific provisions which has its origin to
the technical nature of the evidence particularly as the evidence in the
electronic form cannot be produced in the court of law owing to the size
of computer/server, residing in the machine language and thus, requiring
the interpreter to read the same. The Section 65B of the Evidence Act
makes the secondary copy in the form of computer output comprising of
printout or the data copied on electronic/magnetic media admissible.

2. TYPES OF COMPUTER-GENERATED EVIDENCE
Computer-generated documentary evidence will be of following 3 types:
2.1. REAL EVIDENCE
The calculations or analyses that are generated by the computer itself
through the running of software and the receipt of information from other
devices such as built-in-clocks and remote sensors. This type of
evidence is termed as real evidence. Real evidence arises in many
circumstances. For e.g. If a bank computer automatically calculated the
bank charges due from a customer based upon its tariff, the transactions
on the account and the daily cleared credit balance, this calculation
would be a piece of real evidence.
2.2. HEARSAY EVIDENCE
There are the documents and records produced by the computer that are
copies of information supplied to the computer by human beings. This
material is treated as hearsay evidence. For e.g. Cheques drawn and
paying-in slips credited to a bank account are hearsay evidence.
2.3. DERIVED EVIDENCE
It is information that combines real evidence with the information
supplied to the computer by human beings to form a composite record.
This, too, is usually treated as hearsay evidence. For e.g. Figure in the
daily balance column of a bank statement since this is derived from real
evidence (automatically generated bank charges) and hearsay evidence
(individual cheque and paying-in entries).
E-EVIDENCE IS FOUND IN:
1. E-Mails
2. Digital Photographs
3. Atm

4. Atm Transaction Logs
5.Word Processing Documents
6. Instant Message Histories
7. Files Saved From Accounting Programs
8. Spreadsheets
9. Internet Browser Histories
10. Databases
11. Contents Of Computer Memory
12. Computer Backups
13. Computer
14. Computer Printouts
15. Global Positioning System Tracks
16. Logs From A Hotel’s Electronic Door
17. Locks
18. Digital Video Or Audio Files
FOUNDATION FOR DIGITAL EVIDENCE
The foundation for digital evidence are based on the established
principles of authentication and admissibility that originated with the use
of paper evidence.
The five separate foundations are.
1. Relevance.
2. Authenticity
3. hearsay.
4. Best evidence
5. Probative value
Presumptions

Section 92 of IT Act 2000 made the amendments to the Indian Evidence
Act, 1872 and inserted certain presumptions of electronic evidence.
• S. 81-A It contains presumption as to genuineness of every electronic
record purporting to be the Official Gazette.
• S. 85-A There is a presumption that every electronic record purporting
to be an agreement containing the digital signatures of the parties was
so concluded by affixing the digital signature of the parties.
S. 85-B Creation of a presumption of authenticity of secured digital
signatures unless proven otherwise.
• S. 85-C Creation of a presumption of authenticity of secured DSC
unless proven otherwise.
• S. 88-A Creation as to the contents of electronic messages, but not the
originator of the electronic messages.
• S. 90-A Creation of a presumption as to the authenticity electronic
records five years old, which is produced from the custody of a person.
Electronic Messages
It includes emails, SMS, MMS etc. of messages sent via social
networking sites, like whatsapp, twitter etc. Under the provisions of
Section 88A, there is a presumption as to such messages. Sections 88,
88A, 114(f) of the Evidence Act with section 26 of the General Clauses
Act are relevant sections for sending and receipt of email and its proof.
Mode of proof:
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. It
requires:-
1. Integrity of the data:
That is the data as sent or recorded was intact and not tampered with.

2. Integrity of the hardware/software:
The hardware and software used to reading, downloading, interpreting,
seeing or storing was functioning according to set standards and there
was no deviation or its corruption
3. Security of the system:
The system used to access such electronic record was secured,
and during the particular course of period it was not accessed by any
unauthorized person, so as to rule out the possibility of its tampering or
malfunctioning.
The Rule of Best Evidence-
The best evidence rule means that the best evidence, of which the case
in its susceptible, must always be produced. It is one of the cardinal rules
of law of evidence that the best evidence in possession of the party must
always be given. In other words, if a fact is to be proved by oral
evidence, the evidence must be of that person who had directly
perceived the fact to which he testifies.
In Omychand V Barker-Lord Harwicke stated-that no evidence was
admissible unless it was “the best that the nature of case will allow”. The
general rule is that the secondary evidence, such a copy or facsimile will
be not admissible if an original document is available.
• The best evidence rule states that to prove the content of writing,
recording or photographs, the “Original” writing, recording or photograph
is ordinarily required.
• Federal rules of evidence states that, if data are stored in a computer or
similar device any printout, or other output readable by sight, shown to
reflect the data accurately, is an original. Thus an accurate printouts of

computer data always satisfies the best evidence rule(Doe V United
States)
Gartor v Hunter-Lord Denning has stated-The Old rule, that a party
must produce the best evidence that the nature of the case will allow and
that any less good evidence is to be excluded, has gone by the board
long ago. The only remaining instance of it is that, if an original document
is available on one’s hands, one must produce it; that one cannot give
secondary evidence by producing a copy. Now a days we cannot confine
ourselves to the best evidence. We admit all relevant evidence. The
goodness or badness of it goes only to weight, and not to admissibility.
Best Evidence Rule in India-
• When one party seeks to put the content of a document into evidence.
The best evidence rule requires the original must be produced. The best
evidence rule excludes the secondary evidence and the best evidence or
original evidence means the primary evidence.(Sec-62)
• Sec-91(IEA) mainly forbids proving the contents of a writing otherwise
than by the writing itself and lays down the best evidence rule.
• In Hira Devi vs Official Assignee Bombay, Hon’ble Supreme Court
observed-sec-91 deals with the exclusion of oral by documentary
evidence. The normal rule is that the contents of a document must be
proved by the primary evidence which is the document itself in original.
• Sec-91 is based on what sometimes described as the ‘best evidence
rule’. The best evidence about contents of a document is the document
itself and it is the production of the document that is required by sec-91
in proof of its contents. In a sense the rule enunciated by sec-91 can be
said to be an exclusive rule as it excludes the admission of oral evidence
for proving the contents of the document except in cases where
secondary evidence is allowed to be led under the relevant provisions of

the Evidence Act. Thus the Indian Evidence Act prescribes clear legal
rules that are expected to guide the Judge objectively to decide the
relevancy and admissibility of evidence and rule out any unpredictability
associated with subjective assessment.
ADMISSIBILITY OF ELECTRONIC RECORDS
Section 3 of the Indian Evidence Act,1872 was amended and the phrase
“All documents produced for the inspection of the Court” were
substituted by “All documents including electronic records produced for
the inspection of the Court”. Regarding the documentary evidence, in
Section 59, for the words “Content of documents” the words “Content of
documents or electronic records” have been substituted and Section 65A
& 65B were inserted to incorporate the admissibility of electronic
evidence.
In Section 61 to 65, the word “Document or content of documents” have
not been replaced by the word “Electronic documents or content of
electronic documents”. Thus, the intention of the legislature is explicitly
clear i.e. not to extend the applicability of section 61 to 65 to the
electronic record. It is the cardinal principle of interpretation that if the
legislature has omitted to use any word, the presumption is that the
omission is intentional. It is well settled that the Legislature does not use
any word unnecessarily.
• On the other hand, in Section 61 to 65 Indian Evidence Act, the word
“Document or content of documents” have not been replaced by the
word “Electronic documents or content of electronic documents”. Thus,
the omission of the word, “Electronic Records” in the scheme of Section
61 to 65 signifies the clear and explicit legislative intention,
i.e. not to extend the applicability of Section 61 to 65 to the electronic
record in view of overriding provision of Section 65-B Indian Evidence

Act dealing exclusively with the admissibility of the electronic record
which in view of the compelling technological reasons can be admitted
only in the manner specified under Section 65-B Indian Evidence Act.
• The main objective to introduce the specific provision has its origin to
the technical nature of the evidence particularly as the evidence in the
electronic form cannot be produced in the court of law owing to the size
of computer/server, residing in the machine language and thus, requiring
the interpreter to read the same. The Section 65B of the Evidence Act
makes the secondary copy in the form of computer output comprising of
printout or the data copied on electronic/magnetic media.
3. JUDGMENT ON ELECTRONIC OF EVIDENCE
3.1 VIDEO CONFERENCING.
Recording of evidence by video-conferencing also satisfies the object of
the Evidence Act that the evidence be recorded in the presence of the
accused1
. The accused and his pleader can see the witness as clearly as
if the witness was actually sitting before them. In fact, the accused may
be able to see the witness better than he may have been able to do, if he
was sitting in the dock in a crowded court-room. They can observe his or
her demeanor. In fact the facility to play-back would enable better
observation of demeanor. They can hear and rehear the deposition of the
witness. The accused would be able to instruct his pleader immediately
and thus cross-examination of the witness is effective. The facility of
play-back would give an added advantage whilst cross-examining the
witness. The witness can be confronted with documents or other material
or statement in the same manner as if he/she was in court. Thus, no
prejudice of whatsoever nature is likely to be caused to the accused2
.
1The Evidence Act, 1872; Section 273
2State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601

JUDGMENT COLLECTION
1. State of Maharashtra V. Dr. Praful Desai3
,
The police had recorded evidence by video conferencing. With the
enactment of Information Technology Act, 2000, the law of evidence was
amended to incorporate several provisions governing admissibility and
proof of the electronic evidence.
2. G. shyamlal Rajini V. M.S. Tamizhnathan4
.
The audio C.D. was marked by the court as an exhibit with the condition
that when it was displayed, an opportunity would be given to the wife for
cross examining the husband.
3. Hon'ble S.C. in Tomso Bruno and anr. V. State of U.P. on Dt.
20/01/2015.
Held that the computer generated electronic records in evidence are
admissible at a trial if proved in the manner specified by section 65 B of
the Evidence Act. Sub-section (1) of section 65 B makes admissible as a
document, paper print out of electronic records stored in optical or
magnetic media produced by a computer, subject to the fulfillment of the
conditions specified in sub-section (2) of section 65-B.
4. Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke5
Relying upon the judgment of Anvar P.V. supra, while considering the
admissibility of transcription of recorded conversation in a case where
the recording has been translated, the Supreme Court held that as the
voice recorder had itself not subjected to analysis, there is no point in
placing reliance on the translated version. Without source, there is no
3AIR 2003 S.C. 2053
4AIR 2008 NOC 476 (Mad.)
5MANU/SC/0040/ 2015

authenticity for the translation. Source and authenticity are the two key
factors for electronic evidence.
5. Ankur Chawla vs. CBI6
The Hon’ble High Court of Delhi, while deciding the charges against
accused in a corruption case observed that since audio and video CDs in
question are clearly inadmissible in evidence, therefore trial court has
erroneously relied upon them to conclude that a strong suspicion arises
regarding petitioners criminally conspiring with co-accused to commit the
offence in question. Thus, there is no material on the basis of which, it
can be reasonably said that there is strong suspicion of the complicity of
the petitioners in commission of the offence in question.
6.Abdul Rahaman Kunji vs. The State of West Bengal 7
The Hon’ble High Court of Calcutta while deciding the admissibility of
email held that an email downloaded and printed from the email account
of the person can be proved by virtue of Section 65B r/w Section 88A of
Evidence Act. The testimony of the witness to carry out such procedure
to download and print the same is sufficient to prove the electronic
communication.
7. Jagdeo Singh vs.The State and Ors. 8
In the recent judgment pronounced by Hon’ble High Court of Delhi, while
dealing with the admissibility of intercepted telephone call in a CD and
CDR which were without a certificate u/s 65B Evidence Act, the court
observed that the secondary electronic evidence without certificate u/s
6MANU/DE/2923/ 2014
7MANU/WB/0828/ 2014
8MANU/DE/0376/ 2015

65B Evidence Act is inadmissible and cannot be looked into by the court
for any purpose whatsoever.
TAPE RECORDER
8. R.M. Malkani Vs. State of Maharashtras9
it was held that the tape is primary and direct evidence of what has been
said and recorded . The tape records of speeches were “documents”, as
defined by Section 3 of the Evidence Act, which stood on no different
footing than photographs, and that they were admissible in evidence on
satisfying the following conditions :(a) The voice of the person alleged to
be speaking must be duly Identified by the maker of the record or by
others who knew it.(b) Accuracy of what was actually recorded had to be
proved by the maker of the record and satisfactory evidence, direct or
circumstances, had to be there so as to rule out possibilities of tampering
with the record. (c) The subject matter recorded had to be shown to be
relevant according to rates of relevancy found in the Evidence Act [see
Ziyauddiu Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra and
ors. (1975) Sup. S.C.R. 281 & The State of Maharashtra Vs. Prakash
Vishnurao Mane 1976 Mh.L.J. 73].
9.Ram Singh vs. Col. Ram Singh10
,
it was held that the proper authority must, by himself speaking indicate
the place, time and the name of person making the statement. In all
respect written statements made on oath was said to be a better
alternative.
91973 Cri.L.J. 228
101985 Supp.SCC 611 AIR 1986 SC 3

10. Chandrakant R. Mehta vs. The State11
& [Ram Singh and ors. Vs.
Ram Singh12
It was observed that if it is to be acceptable after a lapse of time, it must
be sealed at the earliest point of time and not to be opened except under
order of the court. Failure to produce on the ground that with the
passage of time and humidity the audibility had become poor and that
piece of evidence was of no avail, no adverse inference can be drawn
since failure is explained. Previous statement, made by a person and
recorded on tape, can be used not only to corroborate the evidence
given by the witness but also to contradict the evidence, as well as to
test the veracity of the witness and also to Impeach his impartiality –
DIGITAL EVIDENCE
11. Thana Singh Vs. Central Bureau of Narcotics13
A digital charge sheet was held to be a document and it can be accepted
as an electronic record. Hon'ble Supreme court directed to supply of
charge sheet in electronic form additionally.
12. Ark Shipping Co. Ltd.Vs. GRT Shipmanagement Pvt. Ltd14
.
Hon'ble Bombay High Court has discussed the necessity of certificate
under section 65B of Evidence Act and provided the sample of
certificate which is reproduced as under :
111993 (3) Bom. C.R.99.
12AIR 1986 SC 3
13(2013)2 SCC 590.
142007(5) ALLMR 516.

1. I state that I was employed in the chartering division of Sahi Oretrans
(Pvt) Ltd. (hereinafter for the sake of brevity referred to as Sahi), a
company having its office at 30 Western India House, 3rd Floor,Sir. P.M.
Road, Mumbai 400 001. I state that Sahi acted as the ship broker in
respect of the charter party concluded between the petitioners and
respondents, above named.
2. I state that being employed in the chartering division of Sahi, I was
personally involved in the transaction. I state that being ship brokers all
emails were forwarded to the petitioners and the respondents through
computer terminals in Sahi's office, by me. In fact, my name appears in
almost all the email correspondence.
3. I state that by virtue of my employment I was authorized to use the
computer terminals in Sahi's office. Further, the computer terminals used
by me were functioning normally at all times. Further, since I was
personally involved in the transaction, I in fact personally authored/saw
the email correspondence exchanged between the petitioners and the
respondents.
4. I hereby produce hard copies of the emails which represent the
contract entered into between the parties. The said emails are annexed
hereto as Exhibit "A". I crave leave to refer to and rely upon typed/clear
copies of the same at the time of hearing, if necessary.
5. I confirm that the contents of the hard copies of the emails are
identical to the emails exchanged through the computer terminals
operated by me. I further state and confirm that the contents of the hard
copies of the emails at Exhibit "A" are identical to the hard copies of the
emails filed before the arbitrator, a compilation of which I have perused.
6. Accordingly, I am making this present affidavit to certify that the hard
copies of the emails annexed at Exhibit "A" to "A4" hereto are a "true

copy"/ reproduction of the electronic record which was regularly fed
into/transmitted through my computer terminal in Sahi's office in the
ordinary course of activities. I further state that at all times the computer
terminals utilized by me were operating properly and there is no
distortion in the accuracy of the contents of the hard copies of the
emails.
How to prove various documents:
Electronic Messages :
It includes emails, SMS, MMS etc. of messages sent vial social
networking sites, like whatsapp, twitter etc. Under the provisions of
Section 88A, there is a presumptions as to such messages. Section 88,
88A, 114(f) of the Evidence Act with section 26 of the General Clause
Act are relevant sections for sending and receipt of email and its proof.
Emails:
To admit emails into evidence, the proponent must show the origin
and integrity of emails. He must show who or what originated the email
and whether the content is complete in the form intended, free from error
or fabrication. In discovery, the proponent needs to prove that the hard
copy of the email evidence is consistent with the one in the computer
and includes all the information held in the electronic document. Next
stage follows that, before admissibility the document has to meet the
requirements of authentication or identification. This is a process of
verification that establishes that the document is what it purports to be.
i.e. that the email was made by the author indicated therein and is
unaltered except for the change in the document generated
automatically such as adding the date and time in case of email and
address. The burden is on the person adducing the data message to
prove its authenticity by adducing relevant evidence therefore that the

document is what it purports to be. In assessing the evidential weight the
court shall have regard to the reliability of the manner in which the data
message was generated, stored or communicated; the reliability of the
manner in which the authenticity of the data message was maintained;
the manner in which the originator of the data message or electronic
record was identified; and any other relevant factor. Email is a computer
output of electronic record and therefore, it is to be proved in the manner
prescribed in Section 65B of the Indian Evidence Act, which requires a
certificate to be given by a person occupying responsible position in
management of the computer. Hard Disc is a storage devise. If written,
then it becomes electronic record under Evidence Act. Under section
65B it has to be proved that the computer during the relevant period was
in the lawful control of the person proving the email 13. [Babu Ram
Aggarwal & Anr. Vs. Krishan Kumar Bhatnagar & Ors15
.
14 Dharambir Vs. Central Bureau of Investigation16
The court arrived at the conclusion that when Section 65B talks of an
electronic record produced by a computer referred to as the computer
output, it would also include a hard disc in which information was stored
or was earlier stored or continues to be stored. It distinguished as there
being two levels of an electronic record. One is the hard disc which once
used itself becomes an electronic record in relation to the information
regarding the changes the hard disc has been subject to and which
information is retrievable from the hard disc by using a software
program. The other level of electronic record is the active accessible
information recorded in the hard disc in the form of a text file, or sound
file or a video file etc. Such information that is accessible can be
152013 IIAD (Delhi) 441
16(148 (2008) DLT 289).

converted or copied as such to another magnetic or electronic device like
a CD, pen drive etc. Even a blank hard disc which contains no
information but was once used for recording information can also be
copied by producing a cloned had or a mirror image.
15. Abdul Rahaman Kunji Vs. The State of West Bengal17
The Hon’ble High Court of Calcutta while deciding the admissibility
of email held that an email downloaded and printed from the email
account of the person can be proved by virtue of Section 65B r/w Section
88A of Evidence Act. The testimony of the witness to carry out such
procedure to download and print the same is sufficient to prove the
electronic communication.
16. Jagdeo Singh Vs. The State and Ors18
.
Hon’ble High Court of Delhi, while dealing with the admissibility of
intercepted telephone call in a CD and CDR which were without a
certificate u/s 65B Evidence Act, observed that the secondary electronic
evidence without certificate u/s 65B Evidence Act is inadmissible and
cannot be looked into by the court for any purpose whatsoever. The
person who want to rely on emails he must fulfill the conditions contained
under sub-clause 2 of Section 65 B. This means that a person filing the
printout of an email in court can rely upon it as an original without the
need to actually file the original soft copy of it.
17 Ark Shipping Co. Ltd. Vs. GRT Ship Management Pvt. Ltd19
.
The Hon’ble Court extracted a affidavit under Sec. 65 B by considering
fact and circumstances of that case. But in 18. Vodafone Essar Ltd. Vs.
Raju Sud the court dispensed with the requirement under Sec. 65 B.
CALL RECORDS :
17 MANU/WB/0828/2014
18 MANU/DE/0376/2015
19(2008 (1) ARBLR 317 Bom.

19. State (NCT of Delhi) Vs. Navjot Sandhu20
There was an appeal against conviction following the attack on
Parliament on December 13, 2001. This case dealt with the proof and
admissibility of mobile telephone call records. While considering the
appeal against the accused for attacking Parliament, a submission was
made on behalf of the accused that no reliance could be placed on the
mobile telephone call records, because the prosecution had failed to
produce the relevant certificate under Section 65B(4) of the Evidence
Act. The Supreme Court concluded that a cross examination of the
competent witness acquainted 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 to prove the call records. It has
observed that, “the call records of cellular phones are stored in large
servers that cannot be easily moved and produced in court. The court
allowed secondary evidence of such matter regardless of compliance
with s. 65B(4). It has to be shown that there was no misuse of the
computer and that it was performing properly. Such evidence would vary
from case to case. It will be very rarely necessary to call an expert. The
burden can be discharged by calling a witness who is familiar with the
operation of the computer concerned”. It is held that, “According to
Section 63, secondary evidence means and includes, among other
things, “copies made from the original by mechanical processes which in
themselves ensure the accuracy of the copy, and copies compared with
such copies”. Section 65 enables secondary evidence of the contents of
a document to be adduced if the original is of such a nature as not to be
easily movable.... Hence, printouts taken from the computers/servers by
mechanical process and certified by a responsible official of the service
20(AIR 2005 SC 3820)

providing company can be led into evidence through a witness who can
identify the signatures of the certifying officer or otherwise speak to the
facts based on his personal knowledge.”
PROOF OF CONTENTS OF C.D.
The person intending to prove C.D. is required to prove whether the
disputed C.D. was prepared by a combination of a computer operating
therein or different computer operating in succession over that period or
of different combination of computers. It is not necessary to examine the
computer expert for the proof of C.D. in addition to the compliance of
provisions of section 65B.
20. Ankur Chawla Vs. CBI 21
The Hon’ble High Court of Delhi, while deciding the charges against
accused in a corruption case observed that since audio and video CDs in
question are clearly inadmissible in evidence, therefore trial court has
erroneously relied upon them to conclude that a strong suspicion arises
regarding petitioners criminally conspiring with co-accused to commit the
offence in question. Thus, there is no material on the basis of which, it
can be reasonably said that there is strong suspicion of the complicity of
the petitioners in commission of the offence in question.
It is interesting to see the observations of the Hon'ble Supreme
Court in AIR 2010 SC 965 In order to prove the charge of corrupt
practice, the petitioner has filed one Video CD and the court found that
new techniques and devices are the order of the day . A first hand
information about an event can be gathered and in a given situation may
prove to be a crucial piece of evidence by Audio and videotape
technology. At the same time, such evidence has to be received with
caution as with fast development in the electronic techniques, they are
more susceptible to tampering and alterations by transcription, excision,
21 MANU/DE/2923/2014.

etc. which may be difficult to detect and it emphasized that to rule out the
possibility of any kind of tampering with the tape, the standard of proof
about its authenticity and accuracy has to be more stringent as
compared to other documentary evidence. When the accuracy of the
recording has not been proved by the petitioner by examining a
competent witness, alleged maker of Video CD. The Video CD therefore,
is not admissible in evidence.
22. JAGJIT SINGH Vs. STATE OF HARYANA22
The speaker of the Legislative Assembly of the State of Haryana
disqualified a member for defection. When hearing the matter, the
Supreme Court considered the digital evidence in the form of interview
transcripts from the Zee News television channel, the Aaj Tak television
channel and the Haryana News of Punjab Today television channel. The
court determined that the electronic evidence placed on record was
admissible and upheld the reliance placed by the speaker on the
recorded interview when reaching the conclusion that the voices
recorded on the CD were those of the persons taking action. The
Supreme Court found no infirmity in the speaker's reliance on the digital
evidence and the conclusions reached by him. The comments in this
case indicate a trend emerging in Indian courts: judges are beginning to
recognize and appreciate the importance of digital evidence in legal
proceedings.
22. K.K. Velusamy Vs. N. Palanisamy23
the Hon'ble Supreme Court considered the point of electronic evidence
such as – the amended definition in Section 3 of Evidence Act 1872 read
with the definition of electronic record in Section 2 clause F of the
22(2006) 11 SCC 1)
23, 2011 EQ–SC–0–158

Information Technology Act, 2000. It includes a compact disk containing
an electronic record of conversation. Section 8 of Evidence Act provides
that the conduct of any party or of any agent to any party, to any suit, in
reference to such a suit or in a reference to any fact in issue therein or
relevant thereto, is relevant if such conduct influences or influenced by
any fact in issue or relevant fact and whether it was previous or
subsequent thereto.
PROOF OF A PHOTOGRAPH TAKEN FROM DIGITAL CAMERA
As per section 2T of Information Technology Act, 2000, a photograph
taken from a digital camera is an electronic record and it can be proved
as per section 65B of the Indian Evidence Act.
PROOF OF OBSCENE SMS SENT THROUGH MOBILE PHONE
As per section 2T of Information Technology Act 2000, 'Mobile' is a
computer and SMS in the mobile is an electronic record. So, it is to be
proved as per section 65B of the Indian Evidence Act which requires a
certificate issued by a person, occupying responsible position in relation
to operation of that device or management of the relevant activities.
23 .Rohit Ved Pal Kaushal Vs. State of Maharashtra24
Hon'ble High Court held that, sending an incidence vulgar sms and
obscene in nature on mobile phone of another amounts an offence under
Section 67 of the I.T. Act.
24. Nikhil Ramdas Rachet Vs. State of Maharashtra25
It was held that the offence under Section 67 of the I.T. Act is cognizable
and non bailable. The offence under Section 72 of the said Act is non
cognizable and can be said to be bailable offence.
ATM
242007 EQ–Bombay–0–1329.
252006 EQ –Bombay 1884

In somewhat different tone, Automated Teller Machines (ATM) was held
to be not a computer by itself nor it is a computer terminal in view of
citation 2005 AIR Knt. HCR 9. However in view of the above discussed
ruling there is some doubt about this proposition.
25.Twentieth Century Fox Film Corporation Vs. NRI Film Production
Associates (P) Ltd26
.
Certain conditions have been laid down for videore cording of evidence:
1. Before a witness is examined in terms of the Audio Video Link, witness
is to file an affidavit or 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).
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.
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
demeanor 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.
26(AIR 2003 KANT 148)

8. After recording the evidence, the same is to be sent to the witness and
his signature is to be obtained in the presence of a Notary Public and
thereafter it forms part of the record of the suit proceedings.
9. The visual is to be recorded and the record would be at both ends.
The witness also is to be alone at the time of visual conference and
notary is to certificate to this effect.
10. The learned Judge may also impose such other conditions as are
necessary in a given set of facts.
11. The expenses and the arrangements are to be borne by the applicant
who wants this facility.
26. Suvarana Musale vs Rahul Musale 2015 (2) Mh.L.J. 801
in view of section 65A and 65B of the Evidence Act it was held that
recording of evidence with help of electronic method and techniques is
acknowledged and recognized in judicial system. Petitioner wife was
working in U.S. and has a minor daughter aged 6 yrs , traveling to India
for being present physically was expensive and she may face difficulty in
getting leave and hurdles in obtaining VISA . An application for recording
evidence through video conferencing was allowed.
PROOF OF THE DIGITAL SIGNATURE OF A PERSON
Section 67A of the Indian Evidence Act provides that except in the case
of a secure digital signature, if the digital signature of any subscriber is
alleged to have been affixed to an electronic record the fact that such
digital signature is the digital signature of the subscriber must be proved.
It is necessary to prove it in the manner of proof of electronic record.
Section 65B will be applicable.
27. Bodala Murali Krishna Vs. Smt. Bodala Prathima 2007 (2) ALD 72

The court held that, “…the amendments carried to the Evidence Act by
introduction of Sections 65A and 65B are in relation to the electronic
record. Sections 67A and 73A were introduced as regards proof and
verification of digital signatures. As regards presumption to be drawn
about such records, Sections 85A, 85B, 85C, 88A and 90A were added.
These provisions are referred only to demonstrate that the emphasis, at
present, is to recognize the electronic records and digital signatures, as
admissible pieces of evidence.”
SUPPLYING COPY OF ELECTRONIC RECORD :
28. Fatima Riswana Vs. State and others, AIR 2005 SC 712
The prosecution was relating to exploitation of certain men and women
for the purpose of making pornographic photos and videos in various
acts of sexual intercourse and thereafter selling them to foreign
websites. The case was allotted to fast track court presided over by a
lady judge. The accused applied for copies of the CDs. The trial court
rejected that prayer. The High Court, also rejected such prayer by
observing that if their copies are provided, they can be copied further
and put into circulation. However, the High Court allowed viewing of the
CDs in the chamber of the judge. It was contended on behalf of the
accused that it may cause embarrassment to the lady judge. Hence, the
matter was directed to be transferred to the court of a male judge.
However, the concern of the victim side was not considered. The apex
court observed that a judicial officer be it a female or male is expected to
face this challenge when call of duty required it. Hence that order was
set aside.
29. State of Punjab and others Vs. M/s. AmritsarBeverages Ltd. and
others, AIR 2006 SC 2820

The section 14(3) of the Punjab General Sales Tax Act provided for
inspection of books, documents and accounts and their seizure. The
officer seizing the book, account, register or document shall forthwith
grant a receipt to a receipt, retaining a copy, affixing signature and seal
of the officer on the document and return of the books to the dealer. But,
the seized record was cash book, ledger and other registers maintained
in a hard disk. Hence, it was not possible to put signature and seal of the
official on the seized documents. However, a copy was taken from the
hard disk and hard disk was returned.
ALLOWING USE OF NETWORK FOR ILLEGAL PURPOSE :
30.Sanjay Kumar Kedia Vs. Narcotics Control Bureau and Another,
2008(2) SCC 294
The appellant was arrested for the offences under sections 24 and 29 of
the NDPS Act, on the allegations was that he had used the network
facilities provided by his companies for arranging the supply of a banned
psychotropic substances online. It was claimed that the companies were
mere network service providers and there were protected under section
79 of the Information Technology Act from any prosecution. On the basis
of the IP address of various websites which used the same IP address of
the websites of the accused it was revealed that the accused was
supplying drugs by taking online orders. The court found that there was
prima facie material showing that the companies of the accused were not
acting merely as a network service provider but where actually running
Internet pharmacy and dealing with the prescription drugs like
Phentermine and Butalbital.
OPINION OF EXAMINER OF ELECTRONIC EVIDENCE
As it is already laid down, provision under section 45A to consider
opinion given by an examiner of electronic evidence regarding any

information transmitted or stored in any computer resource or any other
electronic or digital form is also relevant fact. Court may rely up on the
opinion of an examiner who has given in the manner prescribed under
Section 79A of I.T.ACT. Further, when the court has to form an opinion
as to the electronic signature of any person, the opinion of the certifying
Authority which has issued the electronic Signature Certificate is also
relevant U/S 47A of Evidence Act. When in a proceeding, the court has
to form an opinion on any matter relating to any information transmitted
or stored in any computer resource or any other electronic or digital form,
the opinion of the Examiner of Electronic Evidence referred to in section
79A of the Information Technology Act, 2000 is a relevant fact. However,
when there is a conflict of opinion between the experts then the court is
competent to form its own opinion with regard to signatures on a
document 31. Kishan Chand Vs. Sita Ram AIR 2005 P&H 156.
32.Mohd. Arif Ashfaq Vs. State of NCT of Delhi, MANU/SC/0919/2011
The Appellant (admittedly a Pakistani national) challenges his
concurrent conviction by the trial Court and the High Court as also the
death sentence awarded to him, in this appeal. The court dismissed the
appeal and affirmed the judgment of the Trial Court and High court
thnereby convicting and sentencing the accussed, considering the call
details, SIM cards, IMEI number of the mobile found and other
evidences.
33. Reva Electric Car Company Private Ltd. Vs. Green Mobile,
MANU/SC/1396/2011
The Petitioner has filed the present application under Sections 11(4) and
(6) of the Arbitration and Conciliation Act, 1996 read with paragraph 2 of
the Appointment of the Arbitrators by the Chief Justice of India Scheme,
1996. It is stated that the parties had entered into a legally valid and

enforceable Memorandum of Understanding ('MOU') dated 25th
September, 2007, providing, inter alia, for the respective obligation of
both the parties in connection with the marketing of the cars of the
Petitioner. Though the term of the MOU was till December, 2007, it was
extended by the acts of the parties in terms of Clause 2 of the MOU. The
court, while considering the E-mails and other evidences, dismissed the
Arbitration Petition.
34. Ruchi Majoo Vs. Sanjeev Majoo, MANU/SC/0621/2011
The present case happens to be one such case where legal proceedings
have engaged the parties in a bitter battle for the custody of their only
child Kush, aged about 11 years born in America hence a citizen of that
country by birth. These proceedings included an action filed by the
father-Respondent in this appeal, before the American Court seeking
divorce from the Respondent-wife and also custody of master Kush. An
order passed by the Superior court of California, County of Ventura in
America eventually led to the issue of a red corner notice based on
allegations of child abduction leveled against the mother who like the
father of the minor child is a person of Indian origin currently living with
her parents in Delhi. The mother took refuge under an order dated 4th
April, 2009 passed by the Addl. District Court at Delhi in a petition filed
under Sections 7, 8, 10 & 11 of the Guardians and Wards Act granting
interim custody of the minor to her. Aggrieved by the said order the father
of the minor filed a petition under Article 227 of the Constitution of India
before the High Court of Delhi. By the order impugned in this appeal the
High Court allowed that petition, set aside the order passed by the
District Court and dismissed the custody case filed by the mother
primarily on the ground that the Court at Delhi had no jurisdiction to
entertain the same as the minor was not ordinarily residing at Delhi - a

condition precedent for the Delhi Court to exercise jurisdiction. The High
Court further held that all issues relating to the custody of child ought to
be agitated and decided by the Court in America not only because that
Court had already passed an order to that effect in favour of the father,
but also because all the three parties namely, the parents of the minor
and the minor himself were American citizens. The High Court buttressed
its decision on the principle of comity of courts and certain observations
made by this Court in some of the decided cases to which we shall
presently refer. Based on the E-mails communication and other
evidences, the court has allowed the Civil Appeal and order dated 8th
March, 2010 passed by the High Court hereby set aside. Consequently,
proceedings in G.P. No. 361/2001 filed by the Appellant shall go on and
be disposed of on the merits as expeditiously as possible. And the
Criminal Appeal No. 1184 of 2011, (Arising out of SLP (Crl.) No. 10362 of
2010) is dismissed.
35. Delhi Serial Blasts Case,
The Delhi court has issued notice to jail authorities in Gujarat and
Maharashtra where the Delhi serial bombing accused are lodged so that
court proceedings could be conducted through video-conferencing to
avoid delay in shifting them27
.
Taking into consideration the security lapses which occur when
under trials have to be shunned between the court and jail during case
hearings, courts have formulated the perfect means of taking case of any
faults which may occur during this process. Thus, linking of courts
through video-conferencing is started with the purpose of saving time
and money and also to facilitate the security of prisoners. The video
linkage systems will drastically bring down the number of police
27“Notice on Trial through Video-conferencing”, Times of India, August 9, 2009,
p. 6

personnel deployed on escort duty. The surplus staff could be used for
other duties. The prospects of escape during transportation to and from
the courts could be bleak as the number of prisoners would be
manageable28
.
36.Mohammed Ajmal Mohammad Amir Kasab v State of
Maharashtra & Ors29
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.
37. Gajraj Vs. State of NCT of Delhi, MANU/SC/1104/2011
First Information Report bearing No. 297 of 2005 was registered at
Police Station Krishna Nagar for offences punishable under Sections
302, 452 and 380 of the Indian Penal Code on 7.1.2006. On 14.12.2007,
an additional charge under section 404 of the Indian Penal Code was
also framed against the accused- Appellant. The court dismissed the
appeal taking in consideration the IMEI number of the mobile of the
deceased, Call records and other relevant evidences.
38. Ramlila Maidan Incident Vs. Home Secretary, Union of India &
Ors., MANU/SC/0131/2012
Electronic evidence considered in this case was CCTV footage and
recording in the CDs along with other evidences.
39. Amitbhai Anilchandra Shah Vs. The Central Bureau Of
Investigation & Anr., MANU/SC/0329/2013
28“Video-conferencing on anvil: Plan to Tackle Jail-Court Route Security Lapses”,
The Statesman, January 1, 2007, p. 12
29(2012) 9 SCC 1

Amitbhai Anilchandra Shah has filed the present Writ Petition under
Article 32 of the Constitution of India owing to the filing of fresh FIR by
the Central Bureau of Investigation (CBI) and charge sheet arraying him
as an accused in view of the directions given by this Court to the Police
Authorities of the Gujarat State to handover the case relating to the
death of Tulsiram Prajapati-a material witness to the killings of
Sohrabuddin and his wife Kausarbi to the CBI in Narmada Bai v. State of
Gujarat and Ors. The mobile call details pertaining to the case
important piece of evidence not only against accused Shri Amit Shah but
other police officers of Gujarat and Rajasthan, who worked at his behest
to cover up the fake encounter that killed Tulsiram Prajapati, yet the
court allowed the writ petition of the accused considering the other
factors.
40. Sanjay Dutt (A-117) Vs. State of Maharashtra through CBI (STF),
Bombay, [Alongwith Criminal Appeal Nos. 1102 and 1687 of 2007]
AND The State of Maharashtra,through CBI Vs. Ajai Yash Prakash
Marwah (A-120) [Alongwith Criminal Appeal No. 392 of 2011] AND
Samir Ahmed Hingora (A-53) Vs. The State of Maharashtra, thro.
Superintendent of Police, CBI (STF), Bombay [Alongwith Criminal
Appeal No. 1001 of 2007] AND The State of Maharashtra, through
CBI (STF), Bombay Vs. Samir Ahmed Hingora (A-53)
MANU/SC/0264/2013
The appeals are directed against the final judgment and order of
conviction and sentence dated 28.11.2006 and 31.07.2007 respectively
by the Designated Court under TADA for the Bombay Bomb Blast Case,
Greater Bombay in B.B.C. No. 1/1993. The appeals made by all the
accused have been dismissed by the court, in light of the call details
and other oral & documentary evidences.

41. Animal Welfare Board of India Vs. A Nagaraja and Ors.,
MANU/SC/0426/2014
While considering the photographs and other relevant eviences, the
Appeals, transferred cases and the Writ Petition are disposed by the
court, setting aside the judgment of the Madras High Court, but
upholding the judgment of Bombay High Court and the notification dated
11.7.2011 issued by the Central Government.
42. Re. Vs. India Women says gang rape on orders of village court
published in Business and Financial news,
MANU/SC/0242/2014
The Court, based on the news item published in the Business and
Financial News dated 23.01.2014 relating to the gang-rape of a 20 year
old woman of Subalpur Village, P.S. Labpur, District Birbhum, State of
West Bengal on the intervening night of 20/21.01.2014 on the orders of
community panchayat as punishment for having relationship with a man
from a different community, by order dated 24.01.2014, took suo motu
action and directed the District Judge, Birbhum District, West Bengal to
inspect the place of occurrence and submit a report to this Court within a
period of one week from that date. However, the said suo-moto
proceeding was disposed off by the court.
43. Suresh Kumar Vs. Union of India, MANU/SC/1304/2014
Considering that the electronic records were admissible evidence in the
criminal trial also. Sec 65A & 65B of the Indian Evidence Act make such
record admissible subject to fulfillment of requirements stipulated therein
which include a certificate in terms of sec 65B (4) of the said act. To that
extent the appellant has every right to summon whatever is relevant and
admissible in his defence including electronic record and finding out
location of officers affecting the arrest. The court allowed tha appeal

thereby directing the Trial Court to summon from the companies
concerned, call details of SIM & telephone number.
44. Sanjay Singh Ramrao Chavan Vs. Dattatray Gulabrao Phalke,
MANU/SC/0040/2015
In stating the evidentiary value of a voice recording,the court relied
upon the judgment of Anvar P.V. , while considering the admissibility of
transcription of recorded conversation in a case where the recording has
been translated, the Supreme Court held that as the voice recorder had
itself not subjected to analysis, there is no point in placing reliance on the
translated version. Without source, there is no authenticity for the
translation. Source and authenticity are the two key factors for electronic
evidence.
45. Tanvi Sarwal Vs. Central Board of Secondary Education and
Ors., MANU/SC/0681/2015
All these Writ Petitions, analogously heard, register a challenge to the All
India Pre-Medical and Pre-Dental Entrance Test, 2015 held on 03.5.2015
under the aegis of the Central Board of Secondary Education, New Delhi
having been perceived by the Petitioners to have been irreversibly
vitiated by the use of unfair means and malpractices through electronic
gadgets and devices facilitating the illegal and unfair access to 90
answer keys during the examination conducted on 03.5.2015 to the
beneficiary candidates of such corrupt design at the behest of a
syndicate for unlawful gain. On considering the electronic evidences
discovered during the investigation, i.e. SIM cards, Bluetooth devices,
SMSs; the court allows the petitions.
46. Tomaso Bruno Vs. State of U P, MANU/SC/0057/2015
This appeal is directed against the judgment dated 4.10.2012 passed by
Allahabad High Court in Criminal Appeal No. 5043 of 2011 in which the

High Court confirmed the conviction of the Appellants Under Section 302
read with Section 34 of Indian Penal Code and the sentence of life
imprisonment and fine of Rs. 25,000/- imposed on each of them.
Emphasizing on the production of CCTV footage, call details, SIM
cards, etc as the best evidence, the court allowed the appeal so made
since the said evidences were not presented by the prosecution.
47. Uday Kumar Singh Vs. State of Bihar,MANU/SC/0756/2015
These appeals are against a common judgment and order dated
04.03.2009 passed by the Patna High Court in Death Reference Case
No. 4/2007 and Death Reference Case No. 12/2008 along with the
criminal appeals filed by the accused persons against the judgment and
order of the trial court. The trial court convicted the accused persons and
awarded death sentence, which was referred before the High Court for
confirmation. The High Court after hearing the parties set aside the
judgments and orders of conviction passed by the trial court against the
accused persons. Hence, these appeals have been filed by the
informant/complainant before this Court. Not considering the electronic
and other evidences against the accused, the appeals have been
dismissed by the court.
48.Vinod Kumar Subbiah Vs. Saraswathi Palaniappan,
MANU/SC/0492/2015
These Appeals assail the judgment of the learned Single Judge of the
High Court of Judicature at Madras, Bench at Madurai, delivered on
13.3.2013, setting aside the judgment dated 25.8.2011 of the Trial Court.
The Impugned judgment dismissed the divorce petition filed by the
Appellant. The appeal is allowed by the court, thereby considering the
evidences i.e. voice mails and emails. However, these evidences was

not considered to be as main evidence yet were accepted as the
evidence intended to substantiate the evidence.
HON'BLE UTTARAKHAND HIGH COURT.
49. Simon Dunolz Vs. State of Uttarakhand, MANU/UC/1608/2011
Court has dismissed the appeal made by the accused-appellant and
affirmed the conviction recorded by the Trial Court based on the recovery
of materials like laptop, mobile phones, email printout, etc and other
evidences.
50.Yogesh Sharma Vs. State of Uttarakhand, MANU/UC/1691/2011
The court allowed the bail application of the applicant taking in account
the CCTV recording of the hotel wherein only the accused and the
deceased is seen.
51.Ashok Kumar Kundi Vs. State of Uttarakhan MANU/UC/0168/2013
The court has dismissed the appeal and affirmed the order of conviction
given by the Trial judge. The accused is punishable under sec 302
(MURDER) as well as sec 404 (MISSUSE OF THE VICTIM’S ATM
CARD, evident from the CCTV recording) of IPC .
52.Dablu Singh Alias Dampi Vs. State of Uttarakhand,
MANU/UC/0039/2013
This is a murder case, where in the accused and co-accused are
charged under Sec 302, 32,404 & 411 of IPC. However, the appeals
made by the accused is dismissed, conviction and sentence given by the
Additional Sessions Judge is affirmed on the basis of the call details of
the mobile phone of the deceased for the period after his death and
could lay hand to both the accused.
53.Hari Krishna Bhatt Vs. State of Uttarakhand, MANU/UC/0544/2013

Aggrieved against the submission of charge sheet for the offences
punishable under Sec 292,294 of IPC and 67 of IT Act, the present
application has been filed by the applicant. The application made by the
applicant (Hari Krishna Bhatt) is allowed under sec 482 of CrPC and the
charge-sheet framed on Sec 292, 294 (CrPC) and sec 67 of IT Act
against the applicant and another is quashed by the court, finding no
relevant evidence out of the CD so produced for conviction under the
above mentioned sections.
54. Jai Chand Vs. State of Uttarakhand,MANU/UC/0401/2013
The appeal is preferred by two out of the three accused, who were found
guilty for the offences under Sec 364A, 302,201/34 of IPC after the
conclusion of the trail. The appeal made by the appellant convicts is
allowed by the court, quashing the judgment of conviction and sentence.
Since the evidence put in light, specially the call details of PW1 & PW3
contradicts their own statements, hence the benefit of doubt is given to
the appellants.
55. Mahesh Kumar Vs. Stae of Uttarakhand, MANU/UC/0256/2013
The appeal is directed against the judgement whereby court has
convicted the accused/appellant Mahesh Kumar under section 302 read
with section 34 of I.P.C., and sentenced him to imprisonment for life and
directed to pay fine of Rs. 10,000/-. The court accepts the judgment
given by the Trial Court of conviction on considering the call details of
the mobile of the deceased which was looted and used by the accused,
as one of the important evidence and thereby rejecting the appeal made
by the accused.
56. Arif Vs. State of Uttarakhand, MANU/UC/0480/2013
This is an application seeking regular bail ,under Sections 8/20 of
Narcotics Drugs and Psychotropic Substance Act, Police Station Patel

Nagar, District Dehradun. The FIR in question, made against the
applicant has been quashed by the court and the court has directed for
the investigation on the police officers for their malicious prosecution
evident from their call details.
57. Raju Thapa Vs. State of Uttarakhand, MANU/UC/0176/2013
This criminal appeal under sec. 374 of Cr.P.C. is directed against the
judgment and order , passed by District and Sessions Judge Bageshwar
District Bageshwar in Sessions Trial No. 4 of 2011, State v. Raju Thapa,
convicting the accused Raju Thapa under S. 376, I.P.C. and Section 67A
of The Information Technology Act, 2000 and sentencing him to undergo
R.I. for ten years and to pay a fine of Rs. 10,000/- u/S. 376, I.P.C. and in
default of payment of fine to further undergo six months R.I. and further
sentencing him to undergo R.I. for two years u/S. 67 A of The Information
Technology Act and a fine of Rs. 10,000/- and in default of payment of
fine to further undergo six months R.I. The appeal made by the accused
is allowed by the court since the prosecution after presenting the
electronic evidence i.e. CD which had the video clip, failed to prove its
case against the accused beyond all reasonable doubts.
58. Ajeem Parvej Vs. State of Uttaranchal, MANU/UC/0045/2014
This appeal challenges the judgment and order of conviction, rendered
by the Sessions Judge, Pithoragarh wherein the accused/appellant was
tried for the offence under section 376 of I.P.C. and section 3(1)(XII) of
the SC/ST Act. The trial culminated into conviction for the offence of
section 376 of I.P.C., while for the offence of 3(1)(XII) of the SC/ST Act,
he was acquitted. Taking in consideration the electronic evidence i.e. the
video clip of the victim made by the accused, the court has dismissed
the appeal of the accused and affirmed the judgment so given.
59. Rihan Vs. State of Uttarakhand, MANU/UC/0111/2014

The challenge herein is to the judgment and order of conviction rendered
by the Sessions Judge, Dehradun convicting the appellant Rehan for the
offence of Sections 363, 366 and 376, IPC as well as for the offence of
Section 67 of the Information Technology Act, 2000 and Section 4/6 of
the Indecent Representation of Women (Prohibition) Act, 1986. The
court dismissed the appeal made by the accused considering the
electronic evidences i.e. the video clip and nude pictures of the victim
made by the accused and also circulating the same through the
electronic media.
MEGHALAYA HIGH COURT
60.Sushil Kumar Gupta Vs. Central Bureau Investigation,
MANU/MG/0027/2013
This appeal is directed against the judgment and order dated 23.06.2009
convicting the accused/appellant under Section 7 as well as Section
13(1)(d)(i) read with Section 13(2) of the P.C. Act and sentencing him to
undergo rigorous imprisonment of 6 months and fine of Rs. 10,000/- in
default of payment thereof and further imprisonment of 2 months for the
offence under Section 7 of the P.C. Act and further sentenced to undergo
imprisonment for 1 year and imposition of fine of Rs. 20,000/- in default
thereof to undergo further imprisonment for 4 months for the offence
under Section 13(1)(d)(i) of the P.C.The court considers the evidence
against the accused, out of all one being the audio cassette. It allows
the impugned judgment and order and dismisses the appeal against the
said judgment.
61.Smti. Islida Mary Thyrniang Vs. Union Of India,
MANU/MG/0058/2014
By means of this writ petition, the petitioner has challenged the detention
order dated 29-10-2013 of Shri Arphul Kharbani, passed and approved

by the respondent-authorities under Meghalaya Preventive Detention
Act, 1995 (for short MPDA). The writ petition by the detenue is allowed
and the detention order is dismissed by the court in the light of evidences
produced in favor of the detenue, amongst all, one was the copy of the
ATM card along with the withdrawal statement which states that detenue
was not in the town on the night of the incident.
TRIPURA HIGH COURT
62. Sarajendu Deb Vs. State of Tripura, MANU/TR/0353/2014
This criminal appeal is directed against the judgment and order of
conviction and sentence passed by learned Addl. Sessions Judge,
Agartala, West Tripura, in Sessions Trial Case No. 34 of 2012,
whereunder, the accused appellant was charged for an offence
punishable under Section 302 of IPC and at the conclusion of trial
learned Addl. Sessions Judge found the accused guilty of committing
offence punishable under Section 304 Part-II of IPC and sentenced him
to suffer RI for seven years. The court dismissed the appeal of the
accused while considering the video-graphy and photograph of the
evidences disclosed by the accused.
64. The Oriental Insurance Company Ltd Vs. Billal Miah & Ors.,
MANU/TR/0163/2015
This is a petition filed under Article 227 of the Constitution of the legality
of the order dated 19.04.2013 delivered in Civil Misc.(Review) 05 of 2011
by the Motor Accident Claims Tribunal, South Tripura, Udaipur , now
Gomati Judicial District. The review petition filed under Order XLVII Rule
1 of the C.P.C. being Civil Misc.(Review) 05 of 2011 questioned the
judgment and award dated 12.11.2010 delivered in T.S.(MAC) No. 200 of
2010, limiting the challenge to that the petitioner, the Oriental Insurance
Company was in no way liable to indemnify the damages of the original

respondent No. 2, who was the owner at the time of accident of the
offending vehicle inasmuch as there had been no insurance coverage for
the said vehicle on the day of the accident i.e. 21.08.2008. According to
them, the insurance policy was opened by them w.e.f. 25.08.2008 to be
alive till 24.08.2009. As the accident had taken place on 21.08.2008, by
dint of the said policy, the respondent No. 2, the owner of the offending
vehicle could not have enjoyed indemnity.
While scrutinizing the electronic records and other evidences, the court
is of the view that the court is unable to decide the case due to the
absence of proper facts and documents and hence the petition shall be
reheard by the Motor Accident Claim Tribunal.
65. B.P. Gautam Vs. State of Sikkim, MANU/SI/0018/2015
The court considered the call details and the photographs during the
trap as the admissible evidences and thus, dismissed the appeal made
by the accused.
66. M. Londhoni Devi Vs. National Investigation Agency,
MANU/GH/0512/2011
The appellant has preferred this appeal against an order passed by the
Special Judge, NLA, Assam, Gauhati in Misc Bail Application No.
17/2011 declining bail to the appellant.The appellant has been in custody
since 18.08.2010 and is accused of offences under Sections 120(B),
121, 121(A)and 122 of the IPC read with Sections 16, 17, 18 and 20 of
the Unlawful Activities (Prevention) Act, 1967. The appeal is allowed by
the court disregarding the evidences i.e. the printouts of the
transactions made to the appellant by the UNLF showing her active
membership with UNLF, pointed out by the prosecution.
67.Ramvao Shimray Vs. State of Manipur, MANU/GH/0610/2011

Four leading citizens of the State of Manipur have filed this Public
Interest Litigation, entertained under Article 226 of the Constitution of
India, praying for quashing the Notification No. 1/20/2009-CHA (i) dated
26.04.2010 issued by the Chief Secretary to the Government of Manipur
setting in motion election of one member each from Autonomous District
Councils. The said Notification was purportedly issued under sub-rule (2)
of Rule 15 of the Manipur (Hill Areas) District Councils (Election of
Members) Rules, 2009. The petitioners are also praying for quashing the
follow up Notifications issued by Sub-Divisional Officer/Returning Officer
and fixing the schedule of Election. The writ petition has been dismissed
by the court stating that the action of respondents in obtaining the
signature of the Chief Secretary using electronic device i.e. Fax perse
cannot be said as illegal.
68.Shri Bidhi Chand Dhiman Vs. CBI, MANU/GH/0791/2011
These petitions are directed against a common judgment and order
dated passed by the learned Special Judge, CBI, Assam, Guwahati in
Special Case No. 3 of 2009 by which charge was framed against the
accused petitioners under Section 12 of the Prevention of Corruption Act,
1988 read with Section 120B,IPC.The appeal (474 of 2011) made by the
second accused has been allowed on the basis of the evidences so
produced i.e. video clip and call details.
69.Shiva Jatan Thakur (Dr.) Vs. Union Of India & Ors,
MANU/GH/0513/2011
With the help of this petition, made under Section 482 of the Code
Procedure, read with Article 227 of the Constitution of India, the
petitioner, who is accused in G.R. Case No. 135/2011, arising out at
Dimapur East Police Station Case No. 73/2011, under Section
500/506/507/509 IPC, read with Section 66A/66E/67A of the Information

Technology Act, 2000 , has sought to get aside and quashed the First
Information Report, which has given rise to the case aforementioned,
and the Charge-Sheet, which has been submitted on completion of
investigation into the case. The FIR as well as the charge-sheet is
quashed by the court, not considering the electronic evidences produced
such as voice recording, messages, photographs; since the
procedure laid down in chapter IX of IT Act was not followed.
70.Utpal Debbarma and Anr. Vs. State of Tripura,
MANU/GH/07292012
This is a petition under Section 439 of the Code of Criminal Procedure,
1973 by Sri Utpal Debbarma, the accused petitioner, for granting bail in
connection with G.R. Case No. 280/ 1998 (arising from East Agartala
P.S. Case No. 37/1998), pending in the Court of the learned Addl. Chief
Judicial Magistrate, West Tripura, Agartala. The petitioner has been in
custody since 11.07.2011 and his bail application had been rejected
consecutively by the Addl. Chief Judicial Magistrate, West Tripura,
Agartala, Considering the electronic evidences i.e. Printout copies of
the information stored in some seized SIM cards, pen drives, memory
cards, etc the dealing of the accused petitioner with NLFT was proved
and thereby his bail application was rejected.
71.Oinam Moniton Singha Vs. National Investigating Agency,
MANU/GH/0983/2012
Accused-appellant has filed this appeal, under Section 21(4) of the
National Investigation Agency Act, 2008, against the orde, passed by the
learned Special Judge, NIA, Assam, Guwahati, in Misc. Bail Application
No. 24/2011, in connection with Special NIA Case No. 1/2010, under
Sections 16 /17 /18 /20 of Unlawful Activities (Prevention) Act, 1967,
arising out of Noonmati Police Station Case No. 159/2010 registered

under Section 120(B) /121 /121(A) /122 of IPC, read with Section 10 /13
of UA(P) Act, whereby the prayer of the accused-appellant, Oinam
Moniton Singha, to allow him to go, on bail, The court, after considering
the evidences brought in light by NIA i.e. emails, details of bank
accounts and electronic media for communication, disposed off the
appeal made by the appellant.
72.Barasha Borah Bordoloi Vs. State of Assam,
MANU/GH/0371/2012
With the help of this application, made under Section 482 Cr.P.C., the
petitioner who is an accused in Karimganj Police Section Case No. 483
of 2011, under Sections 120B/384/385/389/353 IPC, read with Section
66A of the Information and Technology Act, 2008, has sought to get set
aside and quashed the First Information Report (in short, 'FIR'), which
led to the registration of the case afore mentioned. The court overlooked
the evidences so produced by both the parties i.e. records of SMS, in
quashing the impugned FIR and thereby dismissed the petition of
quashing of the FIR.
73 P.V.Anvar Vs P.K Basheer judgement was delivered by the three
member Supreme Court bench consisting of the then CJI, Kurien
Joseph along with Justices R.M. Lodha and Rohinton Fali Nariman
in which it was unambiguously declared as follows:
“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.”
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). Following are the specified
conditions under Section 65B(2) of the Evidence Act:

“Only if the electronic record is duly produced in terms of Section
65 of the Evidence Act, the question would arise as to the genuineness
thereof and in that situation, resort can be made to Section 45A – opinion
of examiner of electronic evidence.”
“The very caption of Section 65A of the Evidence Act, read with
Sections 59 and 65B is sufficient to hold that the special provisions on
evidence relating to electronic record shall be governed by the procedure
prescribed under Section 65B of the Evidence Act. That is a complete
code in itself. Being a special law, the general law under Sections 63 and
65 has to yield.”
It is therefore surprising that in the case Shafhi Mohammad vs
State of Himachal Pradesh SLP (Crl) no 9431/2011 and SLP (crl) No
(S) 9631-9634/2012, the Supreme Court bench of two judges namely
Justices Adarsh Kumar Goel and Uday Umesh Lalit has passed an
order date January 30, 2018 which apparently not in agreement with
the Basheer Judgement.
Earlier there was another judgement Sonu@Amar Vs State of
Haryana which was instantly interpreted as rejecting the Basheer
judgment. But actually this was a very measured judgement in which the
Judge had acknowledged that it was a special circumstance in which he
was rejecting the appeal which sought relief on the ground that an earlier
completed trial and conviction should be reviewed because the
electronic evidence was not certified under Section 65B. He stated in no
unclear terms that Basheer judgement is effective as on the date but it
would not be practical to review all completed judgements and hence
would not agree for the review.
Shahfi Mohammad order
Para 12 of the order states:

“Accordingly, we clarify the legal position on the subject on the
admissibility of the electronic evidence, especially by a party who is not
in possession of device from which the document is produced. Such
party cannot be required to produce certificate under Section 65B(4) of
the Evidence Act. The applicability of requirement of certificate being
procedural can be relaxed by Court wherever interest of justice so
justifies.”
We must first note that this is an observation on a SLP and does
not constitute a law overturning the Basheer judgement. Hence the
position as stated in the Basheer judgement remains as the precedent
as of date.
Being an order on an SLP, the order should be considered as an
observation applicable for the specific context and is not a precedent set.
In this case the question that arose was whether the videography of the
scene of crime captured during investigation as a part of Standard
operating Procedure could be used as evidence. In the process there
was a misunderstanding about how the admissibility has to be proved
and who has to issue a Section 65B certificate.
Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a
complete code on the subject. In Anvar P.V. (supra), this Court in para
24 clarified that primary evidence of electronic record was not covered
under Sections 65A and 65B of the Evidence Act. Primary evidence is
the document produced before Court and the expression “document” is
defined in Section 3 of the Evidence Act to mean any matter expressed
or described upon any substance by means of letters, figures or marks,

or by more than one of those means, intended to be used, or which may
be used, for the purpose of recording that matter. “
The applicability of procedural requirement under Section 65 B (4)
of the Evidence Act of furnishing certificate is to be applied only when
such electronic evidence is produced by a person who is in a position to
produce such certificate being in control of the said device and not of the
opposite party.
In a case where electronic evidence is produced by a party who is
not in possession of a device, applicability of Sections 63 and 65 of the
Evidence Act cannot be held to be excluded.” The reason given out by
the bench that we should not make it difficult for law enforcement to
produce the electronic evidence captured with the body cameras by
procedurally putting them in a spot that only the person who is the lawful
owner of the body camera should provide the certificate is acceptable.
Section 65B clearly stats that it is not necessary to produce the
“Original” electronic document that is the “Evidence”, to be admissible. It
is sufficient to produce the “Computer Output” in its place. The “Original”
document is a “Stream of binary data” when it was first created in a
device used for creating the “Original” electronic document that is the
subject matter of admissibility as evidence.
It is always the “Secondary rendition” of an electronic document
that is made available to the Court as evidence in the form of “Computer
Output” as defined in Section 65B. The “Computer Output” is produced
by the person who views the “Original Stream of Binary Data” and makes
a copy either on another media or as a print out. (In the instant case
since the document is a video, it is more appropriate to consider an
electronic copy).

The person who makes this electronic copy as a “Computer
Output” is the person who has to provide a Section 65B certificate stating
where he saw the original version of the document, what device he used
to view it and how he converted it into a copy as produced.
This person could be the video operator back in the Police control
room to whom the video recordings are deposited by the field personnel
and not necessarily the field personnel himself.
If we accept this interpretation of Section 65B being a certification
of the computer output and not certification of the original binary stream,
the Court would have realized that the apparent issue referred to it was
not a matter of concern at all in developing a standard operating
procedure.
The field personnel may deposit the first container of the electronic
document (which contains is the Original stream of data) like depositing
any hardware or article collected from the crime scene with a certificate.
At best each day when they submit the “Memory Card or Tape”, they
may record the “hash value” of the document.
The deposit letter may state, “I deposit herewith a tape marked
……. with hash value under SHA-256 alogorithm of ……” and carry his
signature.
If the person who is depositing an electronic document does not
want to deposit the whole container but only a document which is part of
the data contained there in, then he has to make a copy of the document
into another media device with a hash which needs to carry a Sec 65B
certificate. This process can be automated so that as soon as the field

operative returns to the lab, he connects his equipment to a storage
device which downloads the data, calculates the hash value and
incorporates the Section 65B clauses and obtains the digital signature of
the person before archiving the deposit. Most disk cloning hardware has
this facility of making a copy along with a hash and a certificate slip that
can be signed.
Any subsequent retrieval of the deposit can be made by the back
room person who can provide his Section 65B certificate starting from
what he saw in the archival computer. (As suggested by the concept of
contemporaneous certificationby the High Court of Madhya Pradesh at
Jabalpur, S.Tiwari Vs Arjun Ajay Singh in an order dated 17th January
2017, regarding E.P. no 01/2014).
The subject order is an order on an SLP from a 2 member bench
against an earlier judgment by a three member bench. Hence its validity
is restricted to the specific context and I urge everybody including the
Supreme Court to re consider the order because it is likely to be mis-
interpreted by many other lower courts in future.
Further, when an electronic document is in the custody of either the
respondent or with an intermediary, there is provision for demanding
presentation of the document and hence the question of a required
electronic evidence being contained in a device not under the control of
the presenter does not arise unless the person who is in possession of
the original recording refuses to co-operate with the Court.

Since the procedure for allowing the electronic document to be
lead in evidence is simple and only requires an access to be provided to
the document for certification to an independent trusted party, there
should be no objection by the holder of the evidence to provide the
evidence.
In some cases because the Police try to demand that the entire
hard disk or the computer has to be seized instead of simply capturing
the piece of document that is an evidence, the holder of the document
may hesitate to deposit the device or participate in the process of
providing the evidence.
If the Standard operating procedure recognizes that for provision of
an electronic document (which is a stream of binary data), it is not
necessary to seize and produce the entire hard disk, then the procedure
for getting such documents from the person who is holding it would be
easy.
If however the document does not exist as claimed one party,
nothing can be done to produce it. In such cases, the presenter of the
document cannot be allowed to present any copy that he claims to be
the correct electronic copy to the Court and claim that he is not under an
obligation to provide a section 65B certified copy as per the SLP order, it
will enable fraudulent electronic documents to be produced in the Court.
New sections 65A and 65B are introduced to the Evidence Act
under the Second Schedule to the IT Act.
Section 65A provides that the contents of electronic records may be
proved in accordance with the provisions of Section 65B.

The conditions specified in Section 65(B)(2) are:
1. Firstly, the computer output containing the information should have
been produced by the computer during the period over which the
computer was used regularly to store process information for store or the
purpose of any activities regularly carried on over that that period by the
person having lawful control over the use of the computer.
2. The second requirement is that it must be shown that during the
said period th e information of the kind contained contained in electronic
record or of the kind from which the information contained is derived was
'regularly fed into the computer in the ordinary course of the said activity'.
3. A third requirement is that during the material part part of the said
period, the computer was operating properly and that even if it was not
operating properly for som e time that break did for some not affect either
the record or the accuracy of its contents.
4. The fourth requirement is that the information contained in the record
should be a reproduction or derived from the information fed into the
computer in the ordinary course of the said activity.
Under Section 65B(4) the certificate which identifies the electronic record
containing the statement and describes the manner in which it was
produced giving the particulars of the device involved in the production of
that record and deals with the conditions mentioned in Section 65(B)(2)
and is signed by a person occupying a responsible official position in
relation to the operation of the relevant device 'shall be evidence of any
matter stated in the certificate’.
CONCLUSION
The judgment of the Apex Court, after adverting to several judicial
precedents, seems to have restricted the applicability of the statutory
certificate required under 65B(4) of the Act or may have carved out an

exception to applicability thereof. This judgment may provide sanctity to
considerably significant evidence that was earlier not taken into account
in view of being procedurally uncertified in accordance with Section
65B(4) of the Act. It will be interesting to observe how the other court(s)
interpret the view taken by the Apex
Court.
In keeping with the varying views surrounding the issue pertaining to
applicability of Section 65B (4) of the Act and the legal position qua the
admissibility of electronic evidence enunciated in the judgment of Anvar
P.V vs. P.K Basheer 2014(10) SCC 473, that has not been expressly
over-ruled till date, the ruling of the Apex Court is expected to have
implications on several ongoing proceedings and trials.
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