The term “law” is been used in different senses, in simplified sense it means any rule, regulation to which certain human actions are required to conform, as there are two types of law in which it is been classified substantive or procedural laws and on basis of these types different codes, acts and statutes are divided and made, but law of evidence doesn’t come under purview of any type, it deals with rights as well as procedures. The Law of evidence is the aggregate of rules and principles regulating the admissibility, relevancy, weight, and sufficiency of evidence in legal proceedings, it is a usual means to prove or disprove a fact or any issue. Anything perceptible to the five senses constitutes “evidence”, when submitted to court or jury, of complete jurisdiction. As per English Law, the word “evidence” means the words uttered and things exhibited by witnesses in Court of Justice.
As a part of procedure “evidence” refers to those rules of law which determine what testimony should be admitted and what should be rejected in each case and what is the weight to be given to the testimony admitted. Evidence is that through which we prove or disprove any question in proceeding or to influence the belief respecting it, as belief is produced by consideration of something presented to the mind. So the matter presented in whatever shape it may come and through whatever material organ it is derived, is known as evidence and will be used in proceedings. Everything which has been produced during the proceeding relating to the case to the judge is called evidence and upon those evidence decisions are given. Evidence is that which is placed before court in order to decide the issue of fact.
Section 3 of Indian Evidence Act
As per the Section 3 of Indian Evidence Act, 1872, evidence means and includes: (a) 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; (b) All documents produced for the inspection of the court – such documents are called ‘documentary evidence. This act was passed by the British parliament in the year 1872 and this act contains a set of rules and regulation dealing with admissibility of the evidence in the court of law. Provisions of this act speaks about both procedure and rights. In order to trace the history of the law of evidence of our country three different periods have to be referred which are: (a) Ancient Hindu period; (b) Ancient Muslim period; (c) British period.
In the ancient Hindu period the sources of information in respect to law of evidence prevailing in Hindu India emanate from the Hindu Dharmashastra. Three types of evidence were there at that time which were being recognized: Lekhya (Documentary evidence, Sakshi (witnesses), Bukhthi (possession). In ancient Muslim period it is stated that there is no such transparent concept in respect of any highly developed Muslim rules of evidence. Evidence was divided as per them under the heads of oral and documentary. The present act which our country is following today is the result of British period, before this the rules of evidence were based on the traditional legal system of that time. The courts of presidency towns were used to follow the law of evidence which has been followed today also and applicable in the whole country.
As per Indian Evidence Act, 1872 there are 3 categories of evidence in which it has been divided (a) oral or personal or primary; (b) documentary or secondary; (c) material or real. Documentary evidence has been stated under Chapter 5 of the Indian Evidence Act 1872, it has a great importance in the course of trial as the same is the primary piece of evidence. Section 62 and 63 of the act deals in admissibility of both evidence whether primary or secondary during the proceedings before court.
In the 21st century the use of computers is not limited to the organization or any institution but now it is available to every individual. Even though our country saw a technological revolution, technology has eased out every action of humans. With the growth of IT sectors the use of technology also raised and today everywhere this digital platform is being used, with these increasing technology it has necessitated amendments in Indian Law. In order to regulate these digital platforms The Information Technology Act, 2000 was passed, even though it was amended to allow the admissibility of digital evidence. With the change in law, the courts have developed perspective towards electronic nature of evidence. So, in our Indian Evidence Act 1872 there exists a perpetual dilemma as to the mode and manner of admissibility of electronic evidence or records during the course of trial.
When we are submitting the electronic evidence its validity totally depends upon the quality of the evidence and the nature of the electronic means which is used. In simple terms before accepting digital evidence it is important to check its relevance, authenticity. Evidence is not limited to computers but also extends to include digital things such as emails, digital photographs, ATM transaction logs and also includes the screenshots. These evidences are tending to be more difficult to destroy as compared to other types of evidence.
In the modern era everyone is moving towards the new technology, even the laws are also amended as per the new changes because every crime has an electronic component which are the computers and electronic technology being used to commit the crime. Even though there is a shift in evidence into electronic form of evidence, today it has become the most important evidence now with respect to other forms of evidence. IT has caused a shift in the way individuals and organizations communicate, create, collect, share and store data and information because of which electronic evidence has also evolved to a fundamental pillar of communication, processing and documentation. Electronic evidence has been variously described as ‘digital evidence’ or ‘computer evidence’. Digital evidence includes Information stored or transmitted in binary form that may be relied on in court.
Although the term is too wide in simple terms it means data (comprising the output of analogue devices or data in digital format) that is manipulated, stored or communicated by any device, computer system or being transmitted over a communication system, that has the potential to make the factual account of either party more probable or less probable than it would be without the evidence. This definition states three elements that, firstly it includes all forms of evidence that is created, manipulated or stored in a product that is in digital form. Secondly it aims to include various forms of devices which can store the data. The third element restricts the data to information that is relevant to the process by which a dispute, whatever the nature of the disagreement, is decided by the adjudicator.
This definition clearly includes aspect of admissibility relevance only but does not use ‘admissibility’ in itself as a defining criteria, because some evidence will be admissible but excluded by the adjudicator or inadmissible for reasons that have nothing to do with the nature of the evidence for instance because of the way it was collected. The last part restricts the definition of electronic evidence to those specific items offered by the parties.
Electronic evidence was not even mentioned or covered under the definition of evidence, but as per the development and amendments took place the definition now includes ‘electronic records’ within the same. Even section 3 of Indian Evidence Act 1872 which states that “All documents produced for the inspection of the Court” was substituted by “All documents including electronic records produced for the inspection of the Court”. Even in section 59 of the act the words “Content of documents” has been amended with “Content of documents or electronic records” and by insertion 65A and 65B it incorporated the admissibility of electronic evidence.
Traditionally the fundamental rule of evidence is that of oral evidence which is being used to prove the facts, except document but now as per Section 65-A, it provides that the electronic records may be proved in accordance with the provisions of Section 65-B and it also entails special procedure for adducing electronic records as evidence in a Court of law. It provides both conditions and the manner for adducing electronic evidence. So, evidence by way of electronic record under the Act, in respect of Section 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B.
Explanation via Case Laws
Electronic evidence are considered as a valid form of evidence and it has been stated in Sivrajbhan v. Harchandgirthat “the word evidence in connection with Law includes all agreements except which prove or disprove any fact or matter whose truthfulness is presented for Judicial Investigation. In other words, when the parties involved don’t get the opportunity to cross-examine the statements to ascertain the truth then such a statement does not amount to evidence”. So, electronic evidence is considered as valid evidence.
Screenshot as Evidence or not
As per Information Technology Act, 2000 “electronic record” is defined as data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche. IT act has made various amendments in year 2008 has recognized various forms of communication devices and also defines “communication device” under it, this lead to amendment in definition of ‘Evidence’ in section 3 of Indian Evidence Act 1872 which include electronic records now. Even Section 4 of IT Act 2000 provides legal recognition to electronic records by stating that, where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-
- Rendered made available in an electronic form,
- Accessible so as to be usable for a subsequent reference.
So, the value of electronic record totally depends upon its quality, and it has been discussed in Indian Evidence Act, 1872 under Section 65-A and 65-B of the Evidence Act 1872. These sections provide the four conditions and if these listed conditions are satisfied, then any information contained in an electronic record which is produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original. These conditions as follows:
- 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.
- During such a period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of such activities.
- Throughout the material part of such a period, the computer must have been operating properly. In case the computer was not properly operating during such a period, it must be shown that this did not affect the electronic record or the accuracy of the contents.
- 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 also provided that in any proceeding, evidence of an electronic record is to be given a certificate containing the particulars prescribed by Section 65B of the Act, and signed by a person who is occupying a official position in respect of the operation of the relevant device or the relevant activities would be sufficient evidence of the matters stated in the certificate. Section 65 enables secondary evidence if the original is of such a nature that I cannot be easily movable, so printouts from computers by mechanical process and certified by an authorized official of the company or department and it is also following up the conditions and requirements stated in 65-B which is a provision dealing with the admissibility of electronic records, then there will be no restrictions or bar to adducing the secondary evidence under the provisions of Indian Evidence Act 1872.
In case of Amar Singh v. Union of India, Supreme Court stated that “wherein all the parties, including the state and the telephone company, disputed the authenticity of the printed transcripts of the CDRs, as well as the authorization itself, clearly depicts the spread out notion in the Country”.
In 2014 after Anvar P. v. P.K. Basheer & Ors, the Supreme Court settled all the controversies arising out from various judgements court interpreted 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”.
So from the judgement it can be stated that to prove the electronic evidence is by producing the original electronic media as primary source of evidence in court or it is a copy in the secondary evidence U/s 65A/65B of Evidence Act. Thus, in the case of CD, Memory Card or in mobile phone or any digital source etc. containing secondary evidence, shall be accompanied by the certificate in terms of Section 65B without which, the secondary evidence pertaining to that electronic record, is inadmissible. So, from this it can be seen that even pictures can be used as a source of secondary evidence and in case of screenshots it can be used as an evidence if we relate it to above stated judgements and section 65 A and 65 B.
After all the research related to topic we saw that the evidence signifies not only documentary or oral form of evidence but it also states the electronic form of evidence and with these technological advancement, the admissibility of the secondary evidence has to be examined as per the conditions of Section 65B of the Act the only way to prove the electronic record/ evidence is by producing the original electronic media as a Primary Evidence court , but in case of secondary evidence it is not admissible without any certificate.
As we have discussed in above cases any CD, DVD, Memory Card etc. containing secondary evidence, it will be only applicable by the certificate as stated under Section 65B, without which the secondary evidence is inadmissible. Even the court will decide on the basis of information which we give and provide to court, so if the information is any text messages, screenshots, or audio messages as proof or evidence in the court will be admissible as it is a part of electronic records and with its submission the screenshot as evidence, the details of that screenshot are to be given from where it has been taken and all.
- What are the types of evidence admissible in the 20th century?
- What amendments took place in the IT Act, 200 and Indian Evidence Act, 1872?
- Can we use screenshot as an Evidence?
- What role does the IT act have played in Indian Evidence Act?
- What is the impact of Section 65- A and 65-B on Indian Evidence Act, 1872?
 The Indian Evidence Act, 1872
 The Information Technology Act, 2000
 Section 3 of Indian Evidence Act, 1872
 Section 59 of Indian Evidence Act, 1872
 Section 65-A of Indian Evidence Act, 1872
 Section 65-B of Indian Evidence Act, 1872
 AIR 1954 SC 564 AIR 1954 SC 564
 Section 2(t) of the Information Technology Act, 2000
 Section 4 of the Information Technology Act, 2000
 Section 65-B of Indian Evidence Act, 1872
 (2011) 7 SCC 69
 (2014) 10 SCC 473