RESEARCH PAPER:

EVIDENCE LAW

TITLE: A critical analysis on the relevancy, admissibility and reliability of

digital evidence.

NAME: SANIKA SANGOI

ROLL NO: D060

CLASS: THIRD YEAR B.B.A. LLB

ABSTRACT
“Due to growth and development in technology there has been enormous change in day to day
life. It is very easy to communicate through technology which increasing reliance on electronic
means of communication, e-commerce and storage of information in digital form. This rise and
development of technology has intense effect on legal rules in legal system especially in the
field of evidence. This modern technology has generated and created materials that are
considered evidence in courts. It caused a need to transform the law relating to information
technology and rules of admissibility of electronic evidence both in civil and criminal matters.
This paper is an effort to relook the laws of digital evidence & its admissibility and relevancy
while appreciating various issues involved with help of case laws.”

Keywords- Digital evidence, electronic records, cyber forensic, relevancy,

admissibility, appreciation, reliability.
 1. INTRODUCTION

“Today is the age of information technology. The focus of country is on agenda – ‘Digital
India’. The legal field is also moving towards the digitalization of legal work. E-courts are
being established. When the court is moving towards digitalization the pertinent question arises
as to how much weightage should be given to such digital evidence in court. The relevancy
and admissibility of digital evidence is no more controversial after amendment of IT Act, 2000
along with amendment in Indian Evidence Act, 1872. However, admissibility of such digital
evidence is subject to some condition laid down in Indian evidence act. Digital evidence so
called electronic records has been admitted as documentary evidence under Section 3 of the
Act, which speaks “all documents including electronic records produced for the inspection of
the court are called documentary evidence”. The point of difference is that the verbal statement
produced in evidence is called oral evidence contrary to electronic records. Appreciation of
digital evidence relating to crime is significantly different from the appreciation of traditional
evidence, as for digital forensics there is no established standards, procedure and methods to
which the law courts could refer. The researcher has not only dealt with problem in regard to
admissibility of such various types of digital evidences (Tape recorded conversation, E-mail
conversation, CD, Mobile communication, Mobile, Facebook and Whatsapp messages, Sting
operation, Video conferencing Etc.) but also procedures and Conditions for the admissibility
of digital evidence. This paper has also explored the role of cyber forensics and Expert’s
opinion in this regard. Since admissibility of digital evidence is one thing and reliability on
these types of evidences is another thing, the effort has been made out here to critically examine
the reliability of digital evidence, separately to evaluate its evidentiary value. The extent to
which these types of digital evidences are appreciated by the courts to treat them conclusive
proof of any fact in issue, is going to be examined in this work.”

“The researcher has chosen this topic because digital evidence acquisition is not just systematic
inspection of computer or mobile etc, it is more complex and important task as it is going to
decide the civil or criminal liability. Since there is no specific test laid down that can be used
to determine whether digital evidence possesses the requisite scientific validity or not, the
researcher wishes to suggest some factors to be considered in this regard.”
“The significance of this study is that as Electronic evidence is so commonplace and so
widespread that it has become a staple part of any investigation. If sourced and interrogated
forensically, it can prove decisive at court. Because electronic evidence is now so heavily relied
upon, the integrity, exactness, and reliability of the data must be maintained, and this is what
has become the biggest challenge in court… Is this electronic evidence uncorrupted and
admissible?”

2. RESEARCH OBJECTIVES
o To analyze the validity of various types of digital evidences with the help of
judgements.
o To analyze the challenges with regards to the authenticity of electronic evidence.
o To analyze the role of cyber forensics and expert opinion in this regard.

3. RESEARCH QUESTIONS
o What are the challenges to the authenticity of Electronic evidence?
o What are the effects of considering Electronic evidence as primary and direct?

4. FINDINGS OF THE STUDY

4.1.RELEVANCY AND ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIA

“Acceptance of digital evidence in court depends on the fact whether the evidence is relevant,
whether it is authentic, whether it is hearsay, if yes, whether a copy is acceptable or the original
is required. Relevancy and admissibility of a digital evidence has to be seen in the light of
Sections 3, 5, 65A , 65B and 136 of The Indian Evidence Act, 1872 (Hereafter referred as
Evidence Act) as well as on general principle of evidence that all admissible fact are relevant
but all relevant facts are not admissible.”

“Before Information Technology (IT) amendment Act 2000, evidence of ‘Electronic

Documents’ was adduced through printed reproductions or transcripts, the authenticity of
which was certified by a competent signatory.1 The signatory would identify his/her signature
in court and be open to cross examination. This simple procedure met the conditions of both
Sections 63 and 65 of the Evidence Act.2 But, IT amendment Act has inserted two new
evidentiary rules in the form of two new Sections Section 65A and Section 65B for electronic

1
Tauseef Ahmed, Relevancy and admissibility of electronic evidence, vol 2, 2018
2
Arvind Kumar Dubey (ed.), “The Law of Evidence”, by Batuk Lal 98-221(Central Law Agency, Allahabad
16th edn., 2003).
records in The Indian Evidence Act, 1872. Section 65A of the Evidence Act performs the same
function for electronic records that Section 61 does for documentary evidence. It creates a
separate procedure, distinct from the simple procedure for oral evidence, to ensure that the
adduction of electronic records obeys the hearsay rule.3 It also secures other interests, such as
the authenticity of the technology and the sanctity of the information retrieval procedure.4 But
Section 65A is further distinguished because it is a special law that stands apart from the
documentary evidence procedure contained in Sections 63 and 65.”

“Section 65B of the Evidence Act details this special procedure for adducing electronic records
in evidence. Sub-Section (2) lists the technological conditions upon which a duplicate copy
(including a print-out) of an original electronic record may be used. Sub-Section (4) of Section
65B requires the production of a certificate by a senior person who was responsible for the
computer on which the electronic record was created, or was stored. The certificate must
uniquely identify the original electronic record, describe the manner of its creation, describe
the device that created it, and certify compliance with the technological conditions of sub-
Section (2) of Section 65B.5”

“It is only after Amar Singh v. Union of India6 case in which The Supreme Court held that
the provisions of Sections 65A and 65B of the Evidence Act created special law that overrides
the general law of documentary evidence. Proof of electronic record is a special provision
introduced by the IT Act amending various provisions under the Evidence Act. The very caption
of Section 65Aof 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.”7
Court further observed

“The Evidence Act does not contemplate or permit the proof of an electronic record by oral
evidence if requirements under Section 65B of the Evidence Act are not complied with, as the
law now stands in India.”8

3
Dubey V. Admissibility of electronic evidence: an Indian perspective. Forensic Res Criminol Int J.
2017;4(2):58-63.
4
M. Monir , text book on The Law of Evidence 276-178 (universal law publishing Co. New Delhi- India 9th
edn., 2013).
5
Ibid
6
Amar Singh v. Union of India (2011) 7 SCC 69
7
. Ibid
8
Ibid
“However the ruling of the Anvar case or establishment of Section 65A and Section 65B more
strongly has some type of adversarial effect. It can be understood by example of 2G spectrum
corruption scandal such corruptions come to the public only when taped or wiretapped
conversation were leaked. Some of the conversation were recorded on CD and brought to SC's
attention. There is no way that person in possession of electronic evidence can obtain the
certification required by Section 65B (4) of Evidence Act with any state coming to know about
it and, presumably, attempting to stop the publication. So the ruling of the Anvar case may
affect public interest adversely.”

TAPE RECORDER AS AN ELECTRONIC EVIDENCE

“In R.M MALKANI V. STATE OF MAHARASTRA9 , it was held that the tape is primary
and direct evidence of what has been said and recorded. The court made it clear that
electronically recorded conversation is admissible in evidence, if the conversation is relevant
to the matter in issue and the voice is identified and the accuracy of the recorded conversation
is proved by eliminating the possibility of erasure, addition or manipulation. This Court further
held that a contemporaneous electronic recording of a relevant conversation is a relevant fact
comparable to a photograph of a relevant incident and is admissible as evidence under Section
8 of the Act. There is therefore no doubt that such electronic record can be received as
evidence.”

ELECTRONIC MESSAGES AS DIGITAL EVIDENCE

“Interpretation of Section 2(1) (t) and (i) of IT Act makes it clear that mobile phones are
included in the definition of computer and that’s why SMS, WHATSAPP, FACEBOOK and
E-MAIL Messages are treated as electronic record.10 So such electronic Messages would be
admissible as documents under the Section 65 R/W 65A and 65B of Indian Evidence Act, 1872
Provided that conditions of Section are fulfilled.”
“In State of Delhi v. Mohd. Afzal & Others,11 it was held that electronic records are
admissible. It also cleared the doubt that even if there is a scope of misuse of system or failure
of operating system or interpolation as to affect the accuracy of such electronic data then it is

9
AIR 1973 SC 57
10
Tejas D. Karia , “Digital Evidence: An Indian Perspective” 5 digital evidence and electronic signature law
review 216 (2008)
11
107 (2003) DLT 385, 2003 (3) JCC 1669.
the onus on the person who is challenging such electronic data. The court said that mere
theoretical and general apprehensions cannot make clear evidence inadmissible in court.

However since there is a great chance of cloning the mobile No., hacking of e-mail A/C and
tempering of the electronic Messages that’s why evidentiary value of such digital evidence
(electronic Messages) is less than other documentary records.”

VIDEO CONFERENCING
“IN AMITABH BAGCHI V. ENA BAGCHI12 , sections 65-A and 65-B of Evidence Act, 1872
were analyzed. The court held that the physical presence of person in Court may not be required
for purpose of adducing evidence and the same can be done through medium like video
conferencing. Sections 65-A and 65-B provide provisions for evidences relating to electronic
records and admissibility of electronic records, and that definition of electronic records
includes video conferencing.”

STING OPRATION RECRORD DIGITAL EVIDENCE

“The issue in regard to evidence gathered by way of sting operations is whether such evidence
is admissible or not. First argument in this regard is how one can be held liable for a crime that
he would not have committed if not encouraged. It may amount to violation of Article 19(2)
and Article 21 of the Indian constitution. The second argument is that since such evidence has
been acquired by way of inducement or in a sense, even by way of fraud hence it is
inadmissible.”

PHONE TAPPING AND WIRE-TAPPING RECORD AS DIGITAL EVIDECE

“Phone tapping means secretly listening or / recording a communication in telephone in order
to get information about others activities.
Here it is important to mention that, both, the Central and the State Governments have a right
to tap phones under Section 5(2) of Indian Telegraphic Act, 1885 when an investigating
authority/agency needs to record the phone conversations of the person who is under
suspicion13. Such authorities are supposed to seek permission from the Home Ministry before
going ahead with such an act. In the application specific reasons have to be mentioned. In

12
2005 Cal. 11.
13
Entry 31, Schedule VII, Constitution of India: Posts and telegraphs; telephones, wireless, broadcasting and
other like forms of communication.
addition, the need for phone tapping must be proved. Then the ministry considers the request
and grants permission upon evaluating the merits of the request.”
“In S. Pratap Singh v. State of Punjab14, the Supreme Court accepted tape recorded
telephonic conversations as a corroborative evidence. It can be used as extra judicial confession
and are admissible against the maker provided that they are fulfilling the condition of Sections
24, 25, and 26 of Evidence Act. If there is no element of compulsion or coercion in tape
recording it is not in violation of Article 20(3) of the Constitution of India.”

DIGITAL EVIDENCE IN THE FORM OF COMPACT DISC (CD)

“IN JAGJIT SINGH V. STATE OF HARYANA15 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.16 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.”

4.2.CHALLENGES TO AUTHENTICITY OF ELECTRONIC EVIDENCE

a. A claim that the records were altered, manipulated or damaged between the time they
were created and the time they appear in court as evidence;
b. The reliability of the computer program that generated the record may be questioned;
c. The identity of the author may be in dispute: for instance, the person responsible for
writing a letter in the form of a word processing file, SMS or email may dispute they
wrote the text, or sufficient evidence has not been adduced to demonstrate the nexus
between the evidence and the person responsible for writing the communication;
d. The evidence from a social networking website might be questioned as to its reliability;

14
[1964] 4 S.C.R. 733 and B. v. Maqsud Ali [1965] 2 All E.R. 464.
15
(2006) 11 SCC 1.
16
Vratika Singh, Critical analysis of admissibility of digital evidence, vol 8, 2021
 e. Whether the person alleged to have used their PIN, password or clicked the 'I accept'
icon was the person that actually carried out the action.
f. The data on local area networks, and whether there is a need to obtain an image of the
complete network, if this is possible. If an image of each computer comprising the
network is taken, the issue with networked computers is to demonstrate who had access
to which computers at what time, and whether this access is audited. The security
mechanisms in place on the network will be an important consideration when proving
authenticity.
g. Data from the Internet is also subject to problems, because reliance may be placed on
data obtained from remote computers, the computer of an investigator, and perhaps
intercepted evidence. With the increased use of cloud computing where data is stored
on 'server farms', accessible via the Internet, obtaining a copy of the data may be subject
to contractual restrictions, or the data may be stored in another jurisdiction, which in
turn may mean it will be necessary to take local legal advice in relation to the obtaining
of the data.
h. Where data is being updated constantly, such as transactional data-bases, or websites
that are continually updated, this poses problems, as the relevant evidence is point-in-
time, which may be extremely difficult to obtain.
i. Authentication of information on social media sites presents its own unique set of
issues. Firstly, it can be difficult to establish the author of the document, because social
media sites often have a number people writing to the one page. Secondly, proving the
identity of an author can be difficult, since it is still possible to create an internet profile
without having to prove identity.

4.3.EFFECTS OF CONSDERING ELECTRONIC EVIDENCE AS PRIMARY AND

DIRECT

Blurring the Difference between Primary and Secondary Evidence

“By bringing all forms of computer evidence into the fold of primary evidence, the statute has
effectually blurred the difference between primary and secondary forms f evidence. While the
difference is still expected to apply with respect to other forms of documents, an exception has
been created with respect to computers.17 This, however, is essential, given the complicated

17
Stephen Mason (ed), “ Electronic Evidence” (Lexis Nexis , 2013)
nature of computer evidence in terms of not being easily producible in tangible form. Thus,
while it may make for a good argument to say that if the word document is the original then a
print out of the same should be treated as secondary evidence, it should be considered that
producing a word document in court without the aid of print outs or CDs is not just difficult,
but quite impossible.”

Making Criminal Prosecution Easier

“In light of the recent spate of terrorism in the world, involving terrorists using highly
sophisticated technology to carry out attacks, it is of great help to the prosecution to be able to
produce electronic evidence as direct and primary evidence in court, as they prove the guilt of
he accused much better than having to look for traditional forms of evidence to substitute the
electronic records, which may not even exist. As we saw in the Ajmal Kasab case, terrorists
these days plan all their activities either face-to-face, or through software. Being able to
produce transcripts of internet transactions helped the prosecution case a great deal in proving
the guilt of the accused. Similarly, in the case of State (NCT of Delhi) v. Navjot Sandhu @
Afsan Guru, the links between the slain terrorists and the masterminds of the attack were
established only through phone call transcripts obtained from the mobile service providers.”

Risk of Manipulation
“While allowing all forms of computer output to be admissible as primary evidence, the statute
has overlooked the risk of manipulation. Tampering with electronic evidence is not very
difficult and miscreants may find it easy to change records which are to be submitted in court.
However, technology itself has solutions for such problems. Computer forensics has developed
enough to find ways of cross checking whether an electronic record has been tampered with,
when and in what manner.”

Opening Potential Floodgates

“Computers are the most widely used gadget today. A lot of other gadgets involve computer
chips in their functioning. Thus, the scope of Section 65A and 65B is indeed very large. Going
strictly by the word of the law, any device involving a computer chip should be adducible in
court as evidence. However, practical considerations as well as ethics have to be borne in mind
before letting the ambit of these Sections flow that far. For instance, the Supreme Court has
declared test results of narco-analysis to be inadmissible evidence since they violate Article
20(3) of the Constitution.”
 5. SUGGESTIONS

The International HighTech Crime Conference in 1999 adopted the following guidelines to
preserve admissibility of digital evidence:
1- “Upon seizing digital evidence, action should not change that evidence.”
2- “When it is necessary for a person to access original digital evidence, that person must
be forensically competent.”
3- “All activity relating to the seizure, access, storage or transfer of digital evidence must
be fully documented, preserved and available for review.”
4- “An individual is responsible for all actions taken with respect to digital evidence while
the digital evidence is in their possession.”
5- “Any agency that is responsible for seizing, accessing, storing or transferring digital
evidence is responsible for compliance with these principles”18.

6. CONCLUSION

“It is well established that only those evidence are admissible in court which are relevant,
material and competent and also which probative value outweigh any prejudicial effect. Digital
evidence is not unique with regard to relevancy and admissibility, but because it can be easily
duplicated and modified, often without leaving any traces, digital evidence can present special
problems related to competency.”

“The challenges with respect to the admissibility and appreciation of electronic evidence, India
still has a long way to go in keeping pace with the developments globally. Although the
amendments were introduced to reduce the burden of the proponent of records, they cannot be
said to be without limitations. It is clear that India has yet to devise a mechanism for ensuring
the eracity of contents of electronic records, which are open to manipulation by any party by
obtaining access to the server or space where it is stored. The admission of electronic evidence
along with advantages can also be complex at the same time. It is upon the courts to see that
the whether the evidence fulfils the three essential legal requirements of authenticity, reliability

18
Louis Strydom, Computer Evidence, 2nd World Conference on the Investigation of Crime, ICC Durban, Dec.
2001.
and integrity. After Anvars case decision by the Supreme Court laying down the rules for
admissibility of electronic evidence it can be expected that the Indian courts will adopt a
consistent approach, and will execute all possible safeguards for accepting and appreciating
electronic evidence.”

“In concluding remark it can be submitted that though there is no doubt in regard to relevancy
and admissibility of digital evidence but in most of cases it requires corroboration by
independent evidence. Different type of digital evidence requires not only different type of
technical knowledge but also different level of precaution while relying on digital evidence
and reliance can be made on digital evidence only when its authenticity has been proved not
only to the satisfaction of expert but also to the satisfaction of court.”

7. REFERENCES

o Tauseef Ahmed, Relevancy and admissibility of electronic evidence, vol 2, 2018

o Arvind Kumar Dubey (ed.), “The Law of Evidence”, by Batuk Lal 98-221(Central Law
Agency, Allahabad 16th edn., 2003).
o Dubey V. Admissibility of electronic evidence: an Indian perspective. Forensic Res
Criminol Int J. 2017;4(2):58-63.
o M. Monir , text book on The Law of Evidence 276-178 (universal law publishing Co.
New Delhi- India 9th edn., 2013).
o Tejas D. Karia , “Digital Evidence: An Indian Perspective” 5 digital evidence and
electronic signature law review 216 (2008)
o Entry 31, Schedule VII, Constitution of India: Posts and telegraphs; telephones,
wireless, broadcasting and other like forms of communication.
o Vratika Singh, Critical analysis of admissibility of digital evidence, vol 8, 2021
o Stephen Mason (ed), “ Electronic Evidence” (Lexis Nexis , 2013)
o Louis Strydom, Computer Evidence, 2nd World Conference on the Investigation of
Crime, ICC Durban, Dec. 2001.