Digital evidence or 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 artifact 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 3 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 17 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-A 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-B 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) 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.'

ELECTRONIC EVIDENCE -CASE LAW'S

1. Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal 11) [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.
2. State of Maharashtra vs. Dr Praful B Desai (AIR 2003 SC 2053) [The question involved whether
a witness can be examined by means of a video conference.] The Supreme Court observed that
video conferencing is an advancement of science and technology which permits seeing, hearing
and talking with someone who is not physically present with the same facility and ease as if they
were physically present. The legal requirement for the presence of the witness does not mean
actual physical presence. The court allowed the examination of a witness through video
conferencing and concluded that there is no reason why the examination of a witness by video
conferencing should not be an essential part of electronic evidence.
 3. STATE (NCT OF DELHI) Vs. NAVJOT SANDHU (AIR 2005 SC 3820) 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 65-B(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.

CONCLUSION: The progression of the Indian evidence law is apparent as it has withstood the pressures
and challenges of technology and the cyber world. The appropriate amendments in Evidence Law,
incorporated by our judiciary show pro-activism. In my opinion the law enforcement agencies and
investigating officers have to update themselves about the authentication process prescribed by the court
regarding the admissibility of electronic/digital evidences so that impediments in trial procedures can be
successfully overcome. Proper training of law enforcement agencies in handling cyber related evidence
and correct application of procedure and sections of Evidence Law while presenting such evidence in
court is the primary need of recent times. Common man in the role of a complainant should be now aware
that while submitting evidence to police or courts, he should submit it with a certificate under section
65B(4) of The Indian Evidence Act so the court takes cognizance and reads it as a primary evidence.