TOPIC-ELECTRONIC EVIDENCE

PROJECT-LAW OF EVIDENCE
SUBMITTED BY: SUBMITTED TO:

DEVASHREE SAHU MR. VIPUL VINOD

ENROLL. NO. -160101061 ASSISTANT PROFESSOR(LAW)

SECTION- A,VTH SEM.

B.A. LLB (Hons.)

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW
Contents
INTRODUCTION .......................................................................................................................... 3

ELECTRONIC EVIDENCE ........................................................................................................... 3

ADMISSIBILITY OF ELECTRONIC EVIDENCE ...................................................................... 7

evidentiary value of electronic records ......................................................................................... 13

conclusion ..................................................................................................................................... 17

bibliography .................................................................................................................................. 19
 INTRODUCTION

Proliferation of Information technology has brought with itself a chequered scenario in society. It
has assumed a very significant position in our life. The unending quest to get better in
technology has impregnated various vices in the society. The face of criminal activities has got a
new dimension and outlook with the advent of latest technology. For sure, we cannot rule out the
contribution of such fascinating technologies in our life, both personally and professionally.
However, on the weighing scale, we find it difficult to balance both the situations. When we talk
of the word „cyber‟, it automatically takes us to the thought of internet, technology and virtual
world. For a lawyer or a technician it brings within its nuances various other things as well. They
include computer, networks, data storage, software, cell phones, ATMs, other peripherals. In a
nut shell they include anything and everything which has its roots in technology or is somewhere
related to the generic term ‘compute’ and its offshoots. All these things are collectively and
generically called “cyber space”.

The criminals are using these high end technologies to commit such crimes which are beyond the
reach and understanding of a layman. A person unskilled in this art cannot fancy tracing the roots
of the crime. In recent years it has given us a new term called cyber crime.

In a crime involving the use of technology, the evidences so furnished will also be in some
electronic form. At times it becomes difficult to test the veracity of such evidences, in absence of
expert. Here comes the role of cyber forensics. Forensics generally means the use of science and
technology to establish facts in courts of law. When prefixed by the word cyber, it obviously
connotes the relation with cyber space. Etymologically we term them as „electronic evidence‟.
They are commonly defined as collection, preservation, and analysis and court presentation of
computer related evidences.

ELECTRONIC EVIDENCE

The proliferation of computers and the influence of information technology on society as whole,
coupled with the ability to store and amass information in digital form have all necessitated
amendments in Indian law, to incorporate the provisions on the appreciation of digital evidence.
The Information Technology Act, 2000 and its amendment is based on the United Nations
Commission on International Trade Law (UNCITRAL) model Law on Electronic Commerce.
The Information Technology (IT) Act 2000, was amended to allow for the admissibility of
digital evidence. An amendment to the Indian Evidence Act 1872, the Indian Penal Code 1860
and the Banker's Book Evidence Act 1891 provides the legislative framework for transactions in
electronic world.

Digital evidence or electronic evidence is any probative information stored or transmitted in

digital form that a party to a court case may use at trial. Before accepting digital evidence it is
vital that the determination of its relevance, veracity and authenticity be ascertained by the court
and to establish if the fact is hearsay or a copy is preferred to the original. Digital Evidence is
“information of probative value that is stored or transmitted in binary form.” Evidence is not
only limited to that found on computers but may also extend to include evidence on digital
devices such as telecommunication or electronic multimedia devices.

The e-EVIDENCE can be found in e-mails, digital photographs, ATM transaction logs, word
processing, documents, instant message histories, files saved from accounting programs,
spreadsheets, internet browser histories databases, Contents of computer memory, Computer
backups, Computer printouts, Global Positioning System tracks, Logs from a hotel‟s electronic
door locks, Digital video or audio files. Digital Evidence tends to be more voluminous, more
difficult to destroy, easily modified, easily duplicated, potentially more expressive and more
readily available.

Computer forensics is a branch of forensic science pertaining to legal evidence found in

computers and digital storage mediums. Computer forensics is also known as digital forensics.
The goal of computer forensics is to explain the current state of a digital artifact. The term digital
artefact can include: A computer system storage medium (hard disk or CD-ROM) an electronic
document (e.g. an email message or JPEG image) or even a sequence of packets moving over a
computer network.

The definition of 'evidence' has been amended to include electronic records. The definition of
'documentary evidence' has been amended to include all documents, including electronic records
produced for inspection by the court. Section 33 of the Evidence Act, 1872 defines evidence as
under: "Evidence" - Evidence means and includes:-

1)all statements which the court permits or requires to be made before it by witnesses, in relation
to matters of fact under inquiry; such statements are called oral evidence;

2)all documents including electronic records produced for the inspection of the court. Such
documents are called documentary evidence.

The term 'electronic records' has been given the same meaning as that assigned to it under the IT
Act. IT Act provides for "data, record or data generated, image or sound stored, received or sent
in an electronic form or microfilm or computer-generated microfiche". The definition of
'admission' (Section 174 of the Evidence Act) has been changed to include a statement in oral,
documentary, or electronic form which suggests an inference to any fact at issue or of relevance.
New Section 22-A5 has been inserted into Evidence Act, to provide for the relevancy of oral
evidence regarding the contents of electronic records.

It provides that oral admissions regarding the contents of electronic records are not relevant
unless the genuineness of the electronic records produced is in question. The definition of
'evidence' has been amended to include electronic records. The definition of 'documentary
evidence' has been amended to include all documents, including electronic records produced for
inspection by the court. New sections 65-A and 65-B6 are introduced to the Evidence Act, under
the Second Schedule to the IT Act. Section 65-A provides that the contents of electronic records
may be proved in accordance with the provisions of Section 65-B. Section 65-B provides that
notwithstanding anything contained in the Evidence Act, any information contained in an
electronic, is deemed to be a document and is admissible in evidence without further proof of the
original's production, provided that the conditions set out in Section 65-B are satisfied. The
conditions specified in Section 65-B (2)7 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 or process
information for the purpose of any activities regularly carried on over 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 the
information of the kind 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 of the said period, the computer was
operating properly and that even if it was not operating properly for some time that break did 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 65-B(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‟.

Section 65-B(1) states that if any information contained in an electronic record produced from a
computer (known as computer output) has been copied on to a optical or magnetic media, then
such electronic record that has been copied 'shall be deemed to be also a document' subject to
conditions set out in Section 65-B(2) being satisfied. Both in relation to the information as well
as the computer in question such document 'shall be admissible in any proceedings when further
proof or production of the original as evidence of any contents of the original or of any fact
stated therein of which direct evidence would be admissible.'
 ADMISSIBILITY OF ELECTRONIC EVIDENCE
Due to enormous growth in e-governance throughout the Public & Private Sector, Electronic
Evidence have involved into a fundamental pillar of communication, processing and
documentation. These various forms of electronic evidence are increasingly being used in both
Civil & Criminal Litigations. During trials, 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 website data, social network communication, e-mail,
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 Act8 has been amended by virtue of Section 929 of Information Technology
Act, 2000 (Before amendment). Section 310 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 5911, for the words “Content of documents” the words
“Content of documents or electronic records” have been substituted and Section 65A12 & 65B13
were inserted to incorporate the admissibility of electronic evidence.

In Section 61 to 6514, 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 6515 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 unnece ssarily. In this regard, the Apex Court in Utkal
Contractors & Joinery Pvt. Ltd. v. State of Orissa1 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

1
Utkal Contractors & Joinery Pvt. Ltd. v State of Orissa reported AIR 1987 SC 1454.
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.”17

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-B18 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. It provides:-

Section 65B – Admissibility of Electronic Records

Sec. 65B(1): Notwithstanding anything contained in this Act, any information contained in an
electronic record –

 which is printed on a paper, stored, recorded or

 copied in optical or magnetic media
 produced by a computer
 shall be deemed to be also a document, if the conditions mentioned in this section are
satisfied
 in relation to the information and
 computer in question and
  shall be admissible in any proceedings, without further proof or production of the
original,
 as evidence of any contents of the original or of any fact stated therein of which direct
evidence would be admissible.

Sec. 65B(2):

 The computer from which the record is generated was regularly used to store or process
information in respect of activity regularly carried on by a person having lawful control
over the period, and relates to the period over which the computer was regularly used;
 Information was fed in computer in the ordinary course of the activities of the person
having lawful control over the computer;
 The computer was operating properly, and if not, was not such as to affect the electronic
record or its accuracy;
 Information reproduced is such as is fed into computer in the ordinary course of activity.

Sec.65B(3):

The following computers shall constitute as single computer-

 by a combination of computers operating over that period; or

 by different computers operating in succession over that period; or
 by different combinations of computers operating in succession over that period; or
 in any other manner involving the successive operation over that period, in whatever
order, of one or more computers and one or more combinations of computers,

Sec. 65B(4)20:

Regarding the person who can issue the certificate and contents of certificate, it provides the
certificate doing any of the following things:

 identifying the electronic record containing the statement and describing the manner in
which it was produced;
 giving the particulars of device
  dealing with any of the matters to which the conditions mentioned in sub-section (2)
relate,

and purporting to be signed by a person occupying a responsible official position in relation to

the operation of the relevant device or the management of the relevant activities (whichever is
appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this
sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief
of the person stating it.

This contention is further strengthened by the insertion of Section 65A & 65B and the words
“Notwithstanding anything contained in this Act” which is a non-obstante clause, further fortifies
the fact that the legislature has intended the production or exhibition of the electronic records by
Section 65A & 65B only. A non-obstante clause is generally appended to a Section with a view
to give the enacting part of the Section, in case of conflict, an overriding effect over the
provision in the same or other act mentioned in the non-obstante clause. It is equivalent to saying
that despite of the provisions or act mentioned in the non-obstante clause, the provision
following it will have its full operation or the provisions embraced in the non-obstante clause
will not be an impediment for the operation of the enactment or the provision in which the non-
obstante clause occurs.2

The aforesaid principles of interpretation with respect to the non-obstante clause in form of
“Notwithstanding anything contained in this Act” is further supported by the Hon‟ble Apex
Court in Union of India and Anr., v. G.M. Kokil and Ors.3 observed “It is well-known that a
non obstante clause is a legislative device which is usually employed to give overriding effect to
certain provisions over some contrary provisions that may be found either in the same enactment
or some other enactment, that is to say, to avoid the operation and effect of all contrary
provisions.”

Further, the Hon‟ble Apex Court in the case cited as Chandavarkar Sita Ratna Rao v. Ashalata S.
Guram4, explained the scope of non-obstante clause as “…It is equivalent to saying that in spite of

2
Principles of Statutory Interpretation, 9th Edition by Justice G.P. Singh – Chapter V, Synopsis IV at pages 318 &
319.
3
Union of India and Anr., v G.M. Kokil and Ors. (1984)SCR196.
4
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986)3SCR866
the provision of the Act or any other Act mentioned in the non obstante clause or any contract or
document mentioned the enactment following it will have its full operation…”

In this significant judgment of Anvar P.V. v. P.K. Basheer and others5, the Supreme Court has
settled the controversies arising from the various conflicting judgments as well as the practices
being followed in the various High Courts and the Trial Courts as to the admissibility of the
Electronic Evidences. The Court has interpreted the Section 22A, 45A, 59, 65A & 65B of the
Evidence Act and held that secondary data in CD/DVD/Pen Drive are not admissible without a
certificate U/s 65 B(4) of Evidence Act. It has been elucidated that electronic evidence without
certificate U/s 65B cannot be proved by oral evidence and also the opinion of the expert U/s 45A
Evidence Act cannot be resorted to make such electronic evidence admissible.

The judgment would have serious implications in all the cases where the prosecution relies on
the electronic data and particularly in the cases of anticorruption where the reliance is being
placed on the audio-video recordings which are being forwarded in the form of CD/DVD to the
Court. In all such cases, where the CD/DVD are being forwarded without a certificate U/s 65B
Evidence Act, such CD/DVD are not admissible in evidence and further expert opinion as to
their genuineness cannot be looked into by the Court as evident from the Supreme Court
Judgment. It was further observed that all these safeguards are taken to ensure the source and
authenticity, which are the two hallmarks pertaining to electronic records sought to be used as
evidence. Electronic records being more susceptible to tampering, alteration, transposition,
excision, etc. without such safeguards, the whole trial based on proof of electronic records can
lead to travesty of justice.

In the anticorruption cases launched by the CBI and anticorruption/Vigilance agencies of the
State, even the original recording which are recorded either in Digital Voice Recorders/mobile
phones are not been preserved and thus, once the original recording is destroyed, there cannot be
any question of issuing the certificate under Section 65B(4) of the Evidence Act. Therefore in
such cases, neither CD/DVD containing such recordings are admissible and cannot be exhibited
into evidence nor the oral testimony or expert opinion is admissible and as such, the
recording/data in the CD/DVD‟s cannot become a sole basis for the conviction.

5
Anvar P.V. v. P.K. Basheer and others (2014) 10 scc 473.
In the aforesaid Judgment, the Court has held that Section 65B of the Evidence Act being a „not
obstante clause‟ would override the general law on secondary evidence under Section 63 and 65
of the Evidence Act. The Section 63 and Section 65 of the Evidence Act have no application to
the secondary evidence of the electronic evidence and same shall be wholly governed by the
Section 65A and 65B of the Evidence Act. The Constitution Bench of the Supreme Court
overruled the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afsan
Guru6 by the two judge Bench of the Supreme Court. The court specifically observed that the
Judgment of Navjot Sandhu supra, to the extent, the statement of the law on admissibility of
electronic evidence pertaining to electronic record of this Court, does not lay down correct
position and required to be overruled.

The only options to prove the electronic record/evidence is by producing the original electronic
media as Primary Evidence court or it‟s copy by way secondary evidence U/s 65A/65B of
Evidence Act. Thus, in the case of CD, DVD, Memory Card etc. containing secondary evidence,
the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of
taking the document, without which, the secondary evidence pertaining to that electronic record,
is inadmissible.

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 authenticity for the
translation. Source and authenticity are the two key factors for electronic evidence.7

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

6
State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru , (2005) 11 SCC 600.
7
Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke, (2015)3 SCC 123
suspicion of the complicity of the petitioners in commission of the offence in question.8 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.9

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 65B Evidence Act is inadmissible and cannot be looked into by the court for any purpose
whatsoever.10

EVIDENTIARY VALUE OF ELECTRONIC RECORDS

The era of Information technology has brought new methods and modes of commission of crime.
Each time a crime is committed whether in physical form or in cyber space, the success of
prosecution largely depends on the quality of evidence presented at the trial . With the
sophistication in Information technology the weapons of commission of crime are changing
thereby posing a serious challenge before the investigation agencies to collect and preserve the
evidence. A conviction or acquittal largely depends on the quality of evidence produced by the
prosecution.

The advent information technology has brought into existence a new kind of document called the
electronic record. This intangible document is of new species has certain uniqueness as
compared to conventional form of documents. This document can preserved in same quality and
state for a long period of time through encryption processes reducing the chance of tampering of
evidence. This document can be in various forms like a simple e-mail or short message or
multimedia message or other electronic forms.

8
Ankur Chawla Vs. CBI
9
Abdul Rahaman Kunji Vs. The State of West Bengal
10
Jagdeo Singh Vs. The State and Ors.
The Indian Evidence Act, 1872 and Information Technology Act, 2000 grants legal recognition
to electronic records and evidence submitted in form of electronic records. According to section
2(t) of the Information Technology Act, 2000 “electronic record” means data, record or data
generated, image or sound stored, received or sent in an electronic form or micro film or
computer generated micro fiche. The Act recognizes electronic record in a wide sense thereby
including electronic data in any form such as videos or voice messages. The Information
technology has made it easy to communicate and transmit data in various forms from a simple
personal computer or a mobile phone or other kinds of devices.

The Information Technology Amendment Act, 2008 has recognized various forms of
communication devices and defines a “communication device” under section 2 (ha)of the Act
“communication device” means cell phones, personal digital assistance or combination of both
or any other device used to communicate, send or transmit any text, video, audio or image. The
Indian IT Act 2000 lays down a blanket permission for records not to be denied legal effect if
they are in electronic form as long as they are accessible for future reference.

The evidentiary value of an electronic record totally depends upon its quality. The Indian
Evidence Act, 1872 has widely dealt with the evidentiary value of the electronic records.
According to section 3 of the Act, “evidence” means and includes all documents including
electronic records produced for the inspection of the court and such documents are called
documentary evidence. Thus the section clarifies that documentary evidence can be in the form
of electronic record and stands at par with conventional form of documents.

The evidentiary value of electronic records is widely discussed under section 65A and 65B of the
Evidence Act, 1872. The sections provide that if the four conditions listed are satisfied any
information contained in an electronic record which is printed on paper, stored, recorded or
copied in an optical or magnetic media, produced by a computer is deemed to be a document and
becomes admissible in proceedings without further proof or production of the original, as
evidence of any contacts of the original or any facts stated therein, which direct evidence would
be admissible.

The four conditions referred to above are:

(1) The computer output containing such information should have been produced by the
computer during the period when the computer was used regularly to store or process
information for the purpose of any activities regularly carried on during that period by the person
having lawful control over the use of the computer.

(2) During such period, information of the kind contained in the electronic record was
regularly fed into the computer in the ordinary course of such activities.

(3) Throughout the material part of such period, the computer must have been operating
properly. In case the computer was not properly operating during such period, it must be shown
that this did not affect the electronic record or the accuracy of the contents.

(4) The information contained in the electronic record should be such as reproduces or is
derived from such information fed into the computer in the ordinary course of such activities

It is further provided that where in any proceedings, evidence of an electronic record is to be

given , a certificate containing the particulars prescribed by 65B of the Act, and signed by a
person occupying a responsible official position in relation to the operation of the relevant device
or the management of the relevant activities would be sufficient evidence of the matters stated in
the certificate.

The apex court in State v Navjot Sandhu 11 while examining the provisions of newly added s
65B, held that in a given case, it may be that the certificate containing the details in sub- s 4 of s
65B is not filed, but that does not mean that secondary evidence cannot be given. It was held by
the court that the law permits such evidence to be given in the circumstances mentioned in the
relevant provisions, namely, Section 63 and 65 of the Indian Evidence Act 1872. Paragraph 150
of the judgment which is apposite, reads as under: According to Section 63, secondary evidence
means and includes, among other things, “copies made from the original by mechanical
processes which in themselves insure the accuracy of the copy, and copies compared with such
copies.

11
State v Navjot Sandhu.
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-
providing company can be led in evidence through a witness who can identify the signatures of
the certifying officer or otherwise speak of the facts based on his personal knowledge.
Irrespective of the compliance with the requirements of s 65-B, which is a provision dealing with
admissibility of electronic records, there is no bar to adducing secondary evidence under the
other provisions of the Indian Evidence Act 1872, namely, section 63 and 65.

It is pertinent to note herein a recent development, that as per the IT Amendment Bill 2008
(passed by both houses of Indian Parliament and yet to be enforced), s 79A empowers the
Central Government to appoint any department, body or agency as examiner of electronic
evidence for providing expert opinion on electronic form evidence before any court or authority.
„Electronic form of evidence‟ herein means any information of probative value that is either
stored or transmitted in electronic form and includes computer evidence, digital, audio, digital
video, cellphones, digital fax machines.

Further as per Section 85 B of the Indian Evidence Act, there is a presumption as to authenticity
of electronic records in case of secure electronic records ( i.e records digitally signed as per
Section 14 of the IT Act,2000. Other electronic records can be proved by adducing evidence and
presumption will not operate in case of documents which do not fall under the definition of
secure electronic records. It is pertinent to point out herein that with the passage of the
Information Technology Amendment Act 2008, India would become technologically neutral due
to adoption of electronic signatures as a legally valid mode of executing signatures. This includes
digital signatures as one of the modes of signatures and is far broader in ambit covering
biometrics and other new forms of creating electronic signatures.

The position of electronic documents in the form of SMS, MMS and E-mail in India is well
demonstrated under the law and the interpretation provided in various cases. In State of Delhi v.
Mohd. Afzal & Others12, it was held that electronic records are admissible as evidence. If
someone challenges the accuracy of a computer evidence or electronic record on the grounds of
misuse of system or operating failure or interpolation, then the person challenging it must prove
the same beyond reasonable doubt. The court observed that mere theoretical and general
apprehensions cannot make clear evidence defective and in admissible. This case has well
demonstrated the admissibility of electronic evidence in various forms in Indian courts.

The basic principles of equivalence and legal validity of both electronic signatures and hand
written signatures and of equivalence between paper document and electronic document has
gained universal acceptance. Despite technical measures, there is still probability of electronic
records being tampered with and complex scientific methods are being devised to determine the
probability of such tampering. For admissibility of electronic records, specific criteria have been
made in the Indian Evidence Act to satisfy the prime condition of authenticity or reliability
which may be strengthened by means of new techniques of security being introduced by
advancing technologies.

CONCLUSION
It is quite notable achievement for law enforcement agencies and legislators that India has kept
pace with the changing technological trends and introduced extremely important amendments in
its laws to cater to the demands of technology. The only thing which needs a special and urgent
attention is the training imparted to the implementing authorities so that the provisions are
adequately enforced. Hopefully in years to come this problem will also be redressed and the
country will witness a totally new, refreshed and technologically sound legal and enforcement
framework

The admissibility of the secondary electronic evidence has to be adjudged within the parameters
of Section 65B of Evidence Act and the proposition of the law settled in the recent judgment of
the Apex Court and various other High Courts as discussed above. The proposition is clear and
explicit that if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act,
it is not admissible and any opinion of the forensic expert and the deposition of the witness in the

12
State of Delhi v. Mohd. Afzal & Others.
court of law cannot be looked into by the court. However, there are few gaps which are still
unresolved as what would be the fate of the secondary electronic evidence seized from the
accused wherein, the certificate u/s 65B of Evidence Act cannot be taken and the accused cannot
be made witness against himself as it would be violative of the Article 19 of the Constitution of
India.
 BIBLIOGRAPHY

BOOKS :

The Law of Evidence, Ratanlal & Dheerajlal.

The Law of Evidence, V. Krishnamachari.

The Law of Evidence, Batuk Lal.

WEBSITES :

http://www.neerajaarora.com/admissibility-of-electronic-evidence-challenges-for-legal-
fraternity/.

http://www.legalservicesindia.com/article/article/cyber-forensics-&-electronic-evidences-
challenges-in-enforcement-&-their-admissibility-975-1.html.

http://www.karnikaseth.com/evidentiary-value-of-sms-mms-and-e-mail.html.