– Ms. Gauri Gupta, Final year Student at Vivekanand Institute of Professional Studies 

‘In a world where the swipe of a finger opens the gateway to endless possibilities, our reality has been redefined by the digital age.’

Everyone of us, knowingly or unknowingly, leave behind a trail of digital footprints. Each keystroke, every click, leaves behind prints that, like a map, can be followed to trace one’s digital journey. These fragments of one’s virtual lives become more than just traces; as was evident from the infamous Aryan Khan case, they become electronic evidence, a testament to the intricate tapestry of our actions.

This article sheds light on intricacies, challenges, and importance of electronic evidence under the legal regime.

What is Electronic Evidence?

Electronic evidence is any data, that is stored or communicated by any man-made device, computer or computer system or 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 evidence. Electronic Evidence has the following elements:

1. It is intended to include all forms of evidence that is created, manipulated or stored in a product that can, in its widest meaning, be considered a computer, excluding the human brain.
2. It aims to include the various forms of devices by which data can be stored or transmitted, including a computer, telephone system, wireless telecommunication systems and networks, such as the Internet; and computer systems that are embedded into a device, such as mobile phones, smart cards and navigation systems.

Is Your Digital Trail Admissible in Court?

Electronic records have to be proved as evidence under Section 65A of the Indian Evidence Act, 1872 in accordance with the requirements of Section 65B. Under Section 65B(1), any information contained in an electronic record, which has been stored, recorded or copied as computer output, shall be deemed as a document- and shall be admissible as evidence without further proof or production of the original documents, if the conditions prescribed under Section 65B(2) are fulfilled. These conditions are:

1. The computer output, which contains the information, was generated while the computer was routinely used to store or process data for the purpose of any activities regularly conducted by the person in lawful control of the use of computer;
2. During the said period, the computer was regularly used to process the same type of information as in the electronic record, in the ordinary course of the said activities;
3. Throughout the material part of the said period the computer was operating properly and in respect of the period it was not, or was out of operation, the electronic record or the accuracy of its contents were not affected; and
4. The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

Crucial to this process is to produce a certificate of authenticity under Section 65B(4) of the Act. The certificate must be signed by a person occupying a responsible official position, and he/she must identify the electronic record containing the statement, describe the manner in which it was produced; give such particulars of any device involved in the production of the electronic record by a computer and deals with any of the matters to which the conditions for admissibility relate, in order to satisfy the above-mentioned conditions.

Certain presumptions regarding Electronic Evidence

1. Gazettes in Electronic form:

According to Section 81A of the Evidence Act, the court assumes the genuineness of electronic records purporting to be from the Official Gazette or any legally regulated electronic record. The record must be kept substantially in the form required by law and must be produced from proper custody.

2. Electronic Agreements:

Section 84A establishes the presumption that a contract is concluded when the digital signatures of the parties are applied to an electronic record that represents an agreement.

3. Electronic Messages:

Section 88A presumes that an electronic message forwarded by the sender through an email server to the intended recipient matches the message entered into the sender’s computer for transmission. However, it does not presume the identity of the sender. This provision only assumes the genuineness of the electronic message, not the sender’s identity.

4. Electronic Records five years old:

Section 90A clarifies that when an electronic record, which is presumed to be five years old and is presented from a custody deemed appropriate by the court, purports to bear a digital signature, it can be presumed that the signature belongs to the person or someone authorized by them. An electronic record is considered to be in proper custody when it’s in the natural place and care of the individual it pertains to. Improper custody can be validated if the record has a legitimate origin or if circumstances in the specific case make its origin likely. This rule applies to the Official Gazette in electronic format as well.

How can we authenticate the electronic records that shape our daily lives?

1. Audio and Video Recorded Conversations:

Tape Recorded Conversations hold a unique place as primary and direct evidence, aligning with the Evidence Act’s definition of documents. Yet, courts have set specific criteria for their admission. These recordings serve to corroborate, challenge, verify witness testimony, or even question their credibility. Their utility reaches beyond mere confirmation or contradiction, as they can stand as substantive evidence on their own.

In Ram Singh and Ors. v. Ram Singh, the  Court laid down the conditions for admissibility of tape recorded conversations provided that the following conditions are fulfilled-

The voice must be duly identified. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.

• The maker has to prove the record by satisfactory evidence- direct or circumstantial.
• The maker has to rule out all the possibility of tampering
• The statement must be relevant according to Indian Evidence Act.
• The recorded cassette must be carefully sealed and kept in safe and official custody.
• The voice should be clear and not distorted by other sounds or disturbances.

2. WhatsApp Conversations:

Sections 65A and 65B of the Indian Evidence Act outline the prerequisites for presenting WhatsApp Conversations as evidence in a courtroom. To ensure admissibility, the party submitting WhatsApp evidence must supply a certificate from a Forensic Laboratory, offering a comprehensive account of the electronic records. With these conditions met, WhatsApp conversations become legally admissible evidence, solidifying their standing in the court of law.

In the landmark case of Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, the Supreme Court observed that where there is a mandate for the production of certification under Section 65B of the Evidence Act, failure to provide the same would hamper the evidentiary value of the conversations in question.

3. Emails:

The Delhi High Court, in the case of Kundan Singh v. The State, clarified that a computer output qualifies as evidence when the criteria under Section 65B of the Indian Evidence Act are met. This evidence is admissible in court, with the onus of proving its authenticity resting on the party presenting it. The production of a certificate under Section 65B is mandatory for the same.

4. Hard-Disc and Photographs:

In the debate over the admissibility of hard drives as documentary evidence, the Delhi High Court, in the case of Dharambir v. Central Bureau of Investigation, presented a profound insight. It clarified that an untouched hard disc serves as a storage device, but the moment it’s inscribed, it transforms into an electronic record. Even if attempts are made to revert it to a pristine state, traces of the previous data remain, bearing evidence that something had been recorded and later deleted.

Conclusion

As we navigate the intricate landscape of electronic evidence, one thing remains clear that the adherence to the established procedure under Sections 65A and 65B of the Indian Evidence Act, 1872 is paramount. While Section 65B now provides clarity on the admissibility of electronic evidence, there is still much ground to cover. Steps must be taken to ensure the safety, retention, and confidentiality of the information contained within electronic records. These steps not only protect individual rights but also uphold the integrity of our legal system in the digital era.