E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

STUDY ON CONCEPT OF

ELECTRONIC (DIGITAL)

EVIDENCE

&

ADMISSIBILITY

WITH HON'BLE SUPREME

COURT & HON'BLE HIGH

COURTS JUDGMENT

ARJUN. P. RANDHIR
(B.COM, LL.B, LL,M, D.L.P)
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

1. INTRODUCTION

Due to enormous growth in e-governance throughout the Public &

Private Sector and e-commerce activities Electronic Evidence have

involved into a fundamental pillar of communication, processing and

documentation. The government agencies are opening up to introduce

various governance policies electronically and periodical filings to

regulate and control the industries are done through electronic means.

These various forms of Electronic Evidence/ Digital Evidence are

increasingly being used in the judicial proceedings. At the stage of trial,

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 CD, DVD,

hard disk/ memory card data, website data, social network

communication, e-mail, instant chat messages, 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 Act has been amended by virtue of Section 92 of Information

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

Technology Act, 2000 (Before amendment). Section 3 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 59, for the words “Content of

documents” the words “Content of documents or electronic records” have

been substituted and Section 65A & 65B were inserted to incorporate the

admissibility of electronic evidence. Under the provisions of Section 61 to

65 of the 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documents” have not been replaced by the word “Electronic documents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 intention of the legislature

is explicitly clear i.e. not to extend the applicability of section 61 to 65 to

the electronic record. It is the cardinal principle of interpretation that if the

legislature has omitted to use anyword, the presumption is that the

omission is intentional. It is well settled that the Legislature does not use

any word unnecessarily. In this regard, the Apex Court in Utkal

Contractors & Joinery Pvt. Ltd. v. State of Orissa 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

assumed to legislate for the sake of legislation; nor indulge in legislation

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

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.”

The intention of the legislature is to introduce the specific provisions

which 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 admissible.

2. TYPES OF COMPUTER-GENERATED EVIDENCE

Computer-generated documentary evidence will be of following 3 types:

2.1. REAL EVIDENCE

The calculations or analyses that are generated by the computer itself

through the running of software and the receipt of information from other

devices such as built-in-clocks and remote sensors. This type of

evidence is termed as real evidence. Real evidence arises in many

circumstances. For e.g. If a bank computer automatically calculated the

bank charges due from a customer based upon its tariff, the transactions

on the account and the daily cleared credit balance, this calculation

would be a piece of real evidence.

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

2.2. HEARSAY EVIDENCE

There are the documents and records produced by the computer that are

copies of information supplied to the computer by human beings. This

material is treated as hearsay evidence. For e.g. Cheques drawn and

paying-in slips credited to a bank account are hearsay evidence.

2.3. DERIVED EVIDENCE

It is information that combines real evidence with the information

supplied to the computer by human beings to form a composite record.

This, too, is usually treated as hearsay evidence. For e.g. Figure in the

daily balance column of a bank statement since this is derived from real

evidence (automatically generated bank charges) and hearsay evidence

(individual cheque and paying-in entries).

3. JUDGMENT ON ELECTRONIC OF EVIDENCE

3.1 VIDEO CONFERENCING.

Recording of evidence by video-conferencing also satisfies the object of

the Evidence Act that the evidence be recorded in the presence of the

accused1. The accused and his pleader can see the witness as clearly

as if the witness was actually sitting before them. In fact, the accused

may be able to see the witness better than he may have been able to do,

if he was sitting in the dock in a crowded court-room. They can observe

1
The Evidence Act, 1872; Section 273
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

his or her demeanor. In fact the facility to play-back would enable better

observation of demeanor. They can hear and rehear the deposition of

the witness. The accused would be able to instruct his pleader

immediately and thus cross-examination of the witness is effective. The

facility of play-back would give an added advantage whilst cross-

examining the witness. The witness can be confronted with documents

or other material or statement in the same manner as if he/she was in

court. Thus, no prejudice of whatsoever nature is likely to be caused to

the accused2.

JUDGMENT COLLECTION

1. State of Maharashtra V. Dr. Praful Desai3,

The police had recorded evidence by video conferencing. With the

enactment of Information Technology Act, 2000, the law of evidence was

amended to incorporate several provisions governing admissibility and

proof of the electronic evidence.

2. G. shyamlal Rajini V. M.S. Tamizhnathan4.

The audio C.D. was marked by the court as an exhibit with the condition

that when it was displayed, an opportunity would be given to the wife for

cross examining the husband.

2
State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601
3
AIR 2003 S.C. 2053
4
AIR 2008 NOC 476 (Mad.)
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

3. Hon'ble S.C. in Tomso Bruno and anr. V. State of U.P. on Dt.

20/01/2015.

Held that the computer generated electronic records in evidence are

admissible at a trial if proved in the manner specified by section 65 B of

the Evidence Act. Sub-section (1) of section 65 B makes admissible as a

document, paper print out of electronic records stored in optical or

magnetic media produced by a computer, subject to the fulfillment of the

conditions specified in sub-section (2) of section 65-B.

4. Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke5

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.

5. Ankur Chawla vs. CBI6

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

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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 suspicion of the complicity of

the petitioners in commission of the offence in question.

6.Abdul Rahaman Kunji vs. The State of West Bengal 7

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.

7. Jagdeo Singh vs.The State and Ors. 8

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.

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TAPE RECORDER

8. R.M. Malkani Vs. State of Maharashtras9

it was held that the tape is primary and direct evidence of what has been

said and recorded . The tape records of speeches were “documents”, as

defined by Section 3 of the Evidence Act, which stood on no different

footing than photographs, and that they were admissible in evidence on

satisfying the following conditions :(a) The voice of the person alleged to

be speaking must be duly Identified by the maker of the record or by

others who knew it.(b) Accuracy of what was actually recorded had to be

proved by the maker of the record and satisfactory evidence, direct or

circumstances, had to be there so as to rule out possibilities of tampering

with the record. (c) The subject matter recorded had to be shown to be

relevant according to rates of relevancy found in the Evidence Act [see

Ziyauddiu Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra and

ors. (1975) Sup. S.C.R. 281 & The State of Maharashtra Vs. Prakash

Vishnurao Mane 1976 Mh.L.J. 73].

9.Ram Singh vs. Col. Ram Singh10,

it was held that the proper authority must, by himself speaking indicate

the place, time and the name of person making the statement. In all

9
1973 Cri.L.J. 228
10
1985 Supp.SCC 611 AIR 1986 SC 3
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

respect written statements made on oath was said to be a better

alternative.

10. Chandrakant R. Mehta vs. The State11 & [Ram Singh and ors. Vs.

Ram Singh12

It was observed that if it is to be acceptable after a lapse of time, it must

be sealed at the earliest point of time and not to be opened except under

order of the court. Failure to produce on the ground that with the

passage of time and humidity the audibility had become poor and that

piece of evidence was of no avail, no adverse inference can be drawn

since failure is explained. Previous statement, made by a person and

recorded on tape, can be used not only to corroborate the evidence

given by the witness but also to contradict the evidence, as well as to

test the veracity of the witness and also to Impeach his impartiality –

DIGITAL EVIDENCE

11. Thana Singh Vs. Central Bureau of Narcotics13

A digital charge sheet was held to be a document and it can be accepted

as an electronic record. Hon'ble Supreme court directed to supply of

charge sheet in electronic form additionally.

11
1993 (3) Bom. C.R.99.
12
AIR 1986 SC 3
13
(2013)2 SCC 590.
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

12. Ark Shipping Co. Ltd.Vs. GRT Shipmanagement Pvt. Ltd14.

Hon'ble Bombay High Court has discussed the necessity of certificate

under section 65B of Evidence Act and provided the sample of
certificate which is reproduced as under :

1. I state that I was employed in the chartering division of Sahi Oretrans

(Pvt) Ltd. (hereinafter for the sake of brevity referred to as Sahi), a

company having its office at 30 Western India House, 3rd Floor,Sir. P.M.

Road, Mumbai 400 001. I state that Sahi acted as the ship broker in

respect of the charterparty concluded between the petitioners and

respondents, above named.

2. I state that being employed in the chartering division of Sahi, I was

personally involved in the transaction. I state that being ship brokers all

emails were forwarded to the petitioners and the respondents through

computer terminals in Sahi's office, by me. In fact, my name appears in

almost all the email correspondence.

3. I state that by virtue of my employment I was authorized to use the

computer terminals in Sahi's office. Further, the computer terminals used

by me were functioning normally at all times. Further, since I was

personally involved in the transaction, I in fact personally authored/saw

the email correspondence exchanged between the petitioners and the

respondents.

14
2007(5) ALLMR 516.
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

4. I hereby produce hard copies of the emails which represent the

contract entered into between the parties. The said emails are annexed

hereto as Exhibit "A". I crave leave to refer to and rely upon typed/clear

copies of the same at the time of hearing, if necessary.

5. I confirm that the contents of the hard copies of the emails are

identical to the emails exchanged through the computer terminals

operated by me. I further state and confirm that the contents of the hard

copies of the emails at Exhibit "A" are identical to the hard copies of the

emails filed before the arbitrator, a compilation of which I have perused.

6. Accordingly, I am making this present affidavit to certify that the hard

copies of the emails annexed at Exhibit "A" to "A4" hereto are a "true

copy"/ reproduction of the electronic record which was regularly fed

into/transmitted through my computer terminal in Sahi's office in the

ordinary course of activities. I further state that at all times the computer

terminals utilized by me were operating properly and there is no

distortion in the accuracy of the contents of the hard copies of the

emails.

How to prove various documents:

Electronic Messages :

It includes emails, SMS, MMS etc. of messages sent vial social

networking sites, like whatsapp, twitter etc. Under the provisions of

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

Section 88A, there is a presumptions as to such messages. Section 88,

88A, 114(f) of the Evidence Act with section 26 of the General Clause

Act are relevant sections for sending and receipt of email and its proof.

Emails:

To admit emails into evidence, the proponent must show the origin

and integrity of emails. He must show who or what originated the email

and whether the content is complete in the form intended, free from error

or fabrication. In discovery, the proponent needs to prove that the hard

copy of the email evidence is consistent with the one in the computer

and includes all the information held in the electronic document. Next

stage follows that, before admissibility the document has to meet the

requirements of authentication or identification. This is a process of

verification that establishes that the document is what it purports to be.

i.e. that the email was made by the author indicated therein and is

unaltered except for the change in the document generated

automatically such as adding the date and time in case of email and

address. The burden is on the person adducing the data message to

prove its authenticity by adducing relevant evidence therefore that the

document is what it purports to be. In assessing the evidential weight the

court shall have regard to the reliability of the manner in which the data

message was generated, stored or communicated; the reliability of the

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

manner in which the authenticity of the data message was maintained;

the manner in which the originator of the data message or electronic

record was identified; and any other relevant factor. Email is a computer

output of electronic record and therefore, it is to be proved in the manner

prescribed in Section 65B of the Indian Evidence Act, which requires a

certificate to be given by a person occupying responsible position in

management of the computer. Hard Disc is a storage devise. If written,

then it becomes electronic record under Evidence Act. Under section

65B it has to be proved that the computer during the relevant period was

in the lawful control of the person proving the email 13. [Babu Ram

Aggarwal & Anr. Vs. Krishan Kumar Bhatnagar & Ors15.

14 Dharambir Vs. Central Bureau of Investigation16

The court arrived at the conclusion that when Section 65B talks of an

electronic record produced by a computer referred to as the computer

output, it would also include a hard disc in which information was stored

or was earlier stored or continues to be stored. It distinguished as there

being two levels of an electronic record. One is the hard disc which once

used itself becomes an electronic record in relation to the information

regarding the changes the hard disc has been subject to and which

information is retrievable from the hard disc by using a software program.

15
2013 IIAD (Delhi) 441
16
(148 (2008) DLT 289).
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

The other level of electronic record is the active accessible information

recorded in the hard disc in the form of a text file, or sound file or a video

file etc. Such information that is accessible can be converted or copied

as such to another magnetic or electronic device like a CD, pen drive etc.

Even a blank hard disc which contains no information but was once used

for recording information can also be copied by producing a cloned had

or a mirror image.

15. Abdul Rahaman Kunji Vs. The State of West Bengal17

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.

16. Jagdeo Singh Vs. The State and Ors18.

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, 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. The

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person who want to rely on emails he must fulfill the conditions contained

under subclause 2 of Section 65 B. This means that a person filing the

printout of an email in court can rely upon it as an original without the

need to actually file the original soft copy of it.

17 Ark Shipping Co. Ltd. Vs. GRT Ship Management Pvt. Ltd19.

The Hon’ble Court extracted a affidavit under Sec. 65 B by considering

fact and circumstances of that case. But in 18. Vodafone Essar Ltd. Vs.

Raju Sud the court dispensed with the requirement under Sec. 65 B.

CALL RECORDS :

19. State (NCT of Delhi) Vs. Navjot Sandhu20

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 65B(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
19
(2008 (1) ARBLR 317 Bom.
20
(AIR 2005 SC 3820)
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

records were taken was sufficient to prove the call records. It has

observed that, “the call records of cellular phones are stored in large

servers that cannot be easily moved and produced in court. The court

allowed secondary evidence of such matter regardless of compliance

with s. 65B(4). It has to be shown that there was no misuse of the

computer and that it was performing properly. Such evidence would vary

from case to case. It will be very rarely necessary to call an expert. The

burden can be discharged by calling a witness who is familiar with the

operation of the computer concerned”. It is held that, “According to

Section 63, secondary evidence means and includes, among other

things, “copies made from the original by mechanical processes which in

themselves ensure the accuracy of the copy, and copies compared with

such copies”. 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 into evidence through a witness who can

identify the signatures of the certifying officer or otherwise speak to the

facts based on his personal knowledge.”

PROOF OF CONTENTS OF C.D.

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

The person intending to prove C.D. is required to prove whether the

disputed C.D. was prepared by a combination of a computer operating

therein or different computer operating in succession over that period or

of different combination of computers. It is not necessary to examine the

computer expert for the proof of C.D. in addition to the compliance of

provisions of section 65B.

20. Ankur Chawla Vs. CBI 21

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 suspicion of the complicity of

the petitioners in commission of the offence in question.

It is interesting to see the observations of the Hon'ble Supreme

Court in AIR 2010 SC 965 In order to prove the charge of corrupt

practice, the petitioner has filed one Video CD and the court found that

new techniques and devices are the order of the day . A first hand

information about an event can be gathered and in a given situation may

prove to be a crucial piece of evidence by Audio and videotape

21 MANU/DE/2923/2014.
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

technology. At the same time, such evidence has to be received with

caution as with fast development in the electronic techniques, they are

more susceptible to tampering and alterations by transcription, excision,

etc. which may be difficult to detect and it emphasized that to rule out the

possibility of any kind of tampering with the tape, the standard of proof

about its authenticity and accuracy has to be more stringent as

compared to other documentary evidence. When the accuracy of the

recording has not been proved by the petitioner by examining a

competent witness, alleged maker of Video CD. The Video CD therefore,

is not admissible in evidence.

22. JAGJIT SINGH Vs. STATE OF HARYANA22

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. 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

22
(2006) 11 SCC 1)
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

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.

22. K.K. Velusamy Vs. N. Palanisamy23

the Hon'ble Supreme Court considered the point of electronic evidence

such as – the amended definition in Section 3 of Evidence Act 1872 read

with the definition of electronic record in Section 2 clause F of the

Information Technology Act, 2000. It includes a compact disk containing

an electronic record of conversation. Section 8 of Evidence Act provides

that the conduct of any party or of any agent to any party, to any suit, in

reference to such a suit or in a reference to any fact in issue therein or

relevant thereto, is relevant if such conduct influences or influenced by

any fact in issue or relevant fact and whether it was previous or

subsequent thereto.

PROOF OF A PHOTOGRAPH TAKEN FROM DIGITAL CAMERA

As per section 2T of Information Technology Act, 2000, a photograph

taken from a digital camera is an electronic record and it can be proved

as per section 65B of the Indian Evidence Act.

23
, 2011 EQ–SC–0–158
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

PROOF OF OBSCENE SMS SENT THROUGH MOBILE PHONE

As per section 2T of Information Technology Act 2000, 'Mobile' is a

computer and SMS in the mobile is an electronic record. So, it is to be

proved as per section 65B of the Indian Evidence Act which requires a

certificate issued by a person, occupying responsible position in relation

to operation of that device or management of the relevant activities.

23 .Rohit Ved Pal Kaushal Vs. State of Maharashtra24

Hon'ble High Court held that, sending an incidence vulgar sms and

obscene in nature on mobile phone of another amounts an offence under

Section 67 of the I.T. Act.

24. Nikhil Ramdas Rachet Vs. State of Maharashtra25

It was held that the offence under Section 67 of the I.T. Act is cognizable

and non bailable. The offence under Section 72 of the said Act is non

cognizable and can be said to be bailable offence.

ATM

In somewhat different tone, Automated Teller Machines (ATM) was held

to be not a computer by itself nor it is a computer terminal in view of

citation 2005 AIR Knt. HCR 9. However in view of the above discussed

ruling there is some doubt about this proposition.

24
2007 EQ–Bombay–0–1329.
25
2006 EQ –Bombay 1884
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

25.Twentieth Century Fox Film Corporation Vs. NRI Film Production

Associates (P) Ltd26.

Certain conditions have been laid down for videore cording of evidence:

1. Before a witness is examined in terms of the Audio Video Link,

witness is to file an affidavit or an undertaking duly verified before a

notary or a Judge that the person who is shown as the witness is the

same person as who is going to depose on the screen. A copy is to be

made available to the other side. (Identification Affidavit).

2. The person who examines the witness on the screen is also to file an

affidavit/undertaking before examining the witness with a copy to the

other side with regard to identification.

3. The witness has to be examined during working hours of Indian

Courts. Oath is to be administered through the media.

4. The witness should not plead any inconvenience on account of time

different between India and USA.

5. Before examination of the witness, a set of plaint, written statement

and other documents must be sent to the witness so that the witness has

acquaintance with the documents and an acknowledgement is to be filed

before the Court in this regard.

6. Learned Judge is to record such remarks as is material regarding the

demeanor of the witness while on the screen.

26
(AIR 2003 KANT 148)
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

7. Learned Judge must note the objections raised during recording of

witness and to decide the same at the time of arguments.

8. After recording the evidence, the same is to be sent to the witness and

his signature is to be obtained in the presence of a Notary Public and

thereafter it forms part of the record of the suit proceedings.

9. The visual is to be recorded and the record would be at both ends.

The witness also is to be alone at the time of visual conference and

notary is to certificate to this effect.

10. The learned Judge may also impose such other conditions as are

necessary in a given set of facts.

11. The expenses and the arrangements are to be borne by the

applicant who wants this facility.

26. Suvarana Musale vs Rahul Musale 2015 (2) Mh.L.J. 801

in view of section 65A and 65B of the Evidence Act it was held that

recording of evidence with help of electronic method and techniques is

acknowledged and recognized in judicial system. Petitioner wife was

working in U.S. and has a minor daughter aged 6 yrs , traveling to India

for being present physically was expensive and she may face difficulty in
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

getting leave and hurdles in obtaining VISA . An application for recording

evidence through video conferencing was allowed.

PROOF OF THE DIGITAL SIGNATURE OF A PERSON

Section 67A of the Indian Evidence Act provides that except in the case

of a secure digital signature, if the digital signature of any subscriber is

alleged to have been affixed to an electronic record the fact that such

digital signature is the digital signature of the subscriber must be proved.

It is necessary to prove it in the manner of proof of electronic record.

Section 65B will be applicable.

27. Bodala Murali Krishna Vs. Smt. Bodala Prathima 2007 (2) ALD 72

The court held that, “…the amendments carried to the Evidence Act by

introduction of Sections 65A and 65B are in relation to the electronic

record. Sections 67A and 73A were introduced as regards proof and

verification of digital signatures. As regards presumption to be drawn

about such records, Sections 85A, 85B, 85C, 88A and 90A were added.

These provisions are referred only to demonstrate that the emphasis, at

present, is to recognize the electronic records and digital signatures, as

admissible pieces of evidence.”

SUPPLYING COPY OF ELECTRONIC RECORD :

28. Fatima Riswana Vs. State and others, AIR 2005 SC 712
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

The prosecution was relating to exploitation of certain men and women

for the purpose of making pornographic photos and videos in various

acts of sexual intercourse and thereafter selling them to foreign

websites. The case was allotted to fast track court presided over by a

lady judge. The accused applied for copies of the CDs. The trial court

rejected that prayer. The High Court, also rejected such prayer by

observing that if their copies are provided, they can be copied further

and put into circulation. However, the High Court allowed viewing of the

CDs in the chamber of the judge. It was contended on behalf of the

accused that it may cause embarrassment to the lady judge. Hence, the

matter was directed to be transferred to the court of a male judge.

However, the concern of the victim side was not considered. The apex

court observed that a judicial officer be it a female or male is expected to

face this challenge when call of duty required it. Hence that order was

set aside.

29. State of Punjab and others Vs. M/s. AmritsarBeverages Ltd. and

others, AIR 2006 SC 2820

The section 14(3) of the Punjab General Sales Tax Act provided for

inspection of books, documents and accounts and their seizure. The

officer seizing the book, account, register or document shall forthwith

grant a receipt to a receipt, retaining a copy, affixing signature and seal

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

of the officer on the document and return of the books to the dealer. But,

the seized record was cash book, ledger and other registers maintained

in a hard disk. Hence, it was not possible to put signature and seal of the

official on the seized documents. However, a copy was taken from the

hard disk and hard disk was returned.

ALLOWING USE OF NETWORK FOR ILLEGAL PURPOSE :

30.Sanjay Kumar Kedia Vs. Narcotics Control Bureau and Another,

2008(2) SCC 294

The appellant was arrested for the offences under sections 24 and 29 of

the NDPS Act, on the allegations was that he had used the network

facilities provided by his companies for arranging the supply of a banned

psychotropic substances online. It was claimed that the companies were

mere network service providers and there were protected under section

79 of the Information Technology Act from any prosecution. On the basis

of the IP address of various websites which used the same IP address of

the websites of the accused it was revealed that the accused was

supplying drugs by taking online orders. The court found that there was

prima facie material showing that the companies of the accused were not

acting merely as a network service provider but where actually running

Internet pharmacy and dealing with the prescription drugs like

Phentermine and Butalbital.

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

OPINION OF EXAMINER OF ELECTRONIC EVIDENCE

As it is already laid down, provision under section 45A to consider

opinion given by an examiner of electronic evidence regarding any

information transmitted or stored in any computer resource or any other

electronic or digital form is also relevant fact. Court may rely up on the

opinion of an examiner who has given in the manner prescribed under

Section 79A of I.T.ACT. Further, when the court has to form an opinion

as to the electronic signature of any person, the opinion of the certifying

Authority which has issued the electronic Signature Certificate is also

relevant U/S 47A of Evidence Act. When in a proceeding, the court has

to form an opinion on any matter relating to any information transmitted

or stored in any computer resource or any other electronic or digital form,

the opinion of the Examiner of Electronic Evidence referred to in section

79A of the Information Technology Act, 2000 is a relevant fact. However,

when there is a conflict of opinion between the experts then the court is

competent to form its own opinion with regard to signatures on a

document 31. Kishan Chand Vs. Sita Ram AIR 2005 P&H 156.

32.Mohd. Arif Ashfaq Vs. State of NCT of Delhi, MANU/SC/0919/2011

The Appellant (admittedly a Pakistani national) challenges his

concurrent conviction by the trial Court and the High Court as also the

death sentence awarded to him, in this appeal. The court dismissed the
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

appeal and affirmed the judgment of the Trial Court and High court

thnereby convicting and sentencing the accussed, considering the call

details, SIM cards, IMEI number of the mobile found and other

evidences.

33. Reva Electric Car Company Private Ltd. Vs. Green Mobile,

MANU/SC/1396/2011

The Petitioner has filed the present application under Sections 11(4) and

(6) of the Arbitration and Conciliation Act, 1996 read with paragraph 2 of

the Appointment of the Arbitrators by the Chief Justice of India Scheme,

1996. It is stated that the parties had entered into a legally valid and

enforceable Memorandum of Understanding ('MOU') dated 25th

September, 2007, providing, inter alia, for the respective obligation of

both the parties in connection with the marketing of the cars of the

Petitioner. Though the term of the MOU was till December, 2007, it was

extended by the acts of the parties in terms of Clause 2 of the MOU. The

court, while considering the E-mails and other evidences, dismissed the

Arbitration Petition.

34. Ruchi Majoo Vs. Sanjeev Majoo, MANU/SC/0621/2011

The present case happens to be one such case where legal proceedings

have engaged the parties in a bitter battle for the custody of their only

child Kush, aged about 11 years born in America hence a citizen of that
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

country by birth. These proceedings included an action filed by the

father-Respondent in this appeal, before the American Court seeking

divorce from the Respondent-wife and also custody of master Kush. An

order passed by the Superior court of California, County of Ventura in

America eventually led to the issue of a red corner notice based on

allegations of child abduction leveled against the mother who like the

father of the minor child is a person of Indian origin currently living with

her parents in Delhi. The mother took refuge under an order dated 4th

April, 2009 passed by the Addl. District Court at Delhi in a petition filed

under Sections 7, 8, 10 & 11 of the Guardians and Wards Act granting

interim custody of the minor to her. Aggrieved by the said order the

father of the minor filed a petition under Article 227 of the Constitution of

India before the High Court of Delhi. By the order impugned in this

appeal the High Court allowed that petition, set aside the order passed

by the District Court and dismissed the custody case filed by the mother

primarily on the ground that the Court at Delhi had no jurisdiction to

entertain the same as the minor was not ordinarily residing at Delhi - a

condition precedent for the Delhi Court to exercise jurisdiction. The High

Court further held that all issues relating to the custody of child ought to

be agitated and decided by the Court in America not only because that

Court had already passed an order to that effect in favour of the father,
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

but also because all the three parties namely, the parents of the minor

and the minor himself were American citizens. The High Court

buttressed its decision on the principle of comity of courts and certain

observations made by this Court in some of the decided cases to which

we shall presently refer. Based on the E-mails communication and other

evidences, the court has allowed the Civil Appeal and order dated 8th

March, 2010 passed by the High Court hereby set aside. Consequently,

proceedings in G.P. No. 361/2001 filed by the Appellant shall go on and

be disposed of on the merits as expeditiously as possible. And the

Criminal Appeal No. 1184 of 2011, (Arising out of SLP (Crl.) No. 10362

of 2010) is dismissed.

35. Delhi Serial Blasts Case,

The Delhi court has issued notice to jail authorities in Gujarat and

Maharashtra where the Delhi serial bombing accused are lodged so that

court proceedings could be conducted through video-conferencing to

avoid delay in shifting them27.

Taking into consideration the security lapses which occur when

under trials have to be shunned between the court and jail during case

hearings, courts have formulated the perfect means of taking case of any

faults which may occur during this process. Thus, linking of courts

through video-conferencing is started with the purpose of saving time

27
“Notice on Trial through Video-conferencing”, Times of India, August 9, 2009, p. 6
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

and money and also to facilitate the security of prisoners. The video

linkage systems will drastically bring down the number of police

personnel deployed on escort duty. The surplus staff could be used for

other duties. The prospects of escape during transportation to and from

the courts could be bleak as the number of prisoners would be

manageable28.

36.Mohammed Ajmal Mohammad Amir Kasab v State of

Maharashtra & Ors29

The Hon’ble Supreme Court appreciated the electronic evidence,

whether in the form of CCTV footage, mobile devices, memory cards,

data storage devices, intercepted communications over VoIP, IP

Addresses, etc. while delivering the judgment.

37. Gajraj Vs. State of NCT of Delhi, MANU/SC/1104/2011

First Information Report bearing No. 297 of 2005 was registered at

Police Station Krishna Nagar for offences punishable under Sections

302, 452 and 380 of the Indian Penal Code on 7.1.2006. On 14.12.2007,

an additional charge under section 404 of the Indian Penal Code was

also framed against the accused- Appellant. The court dismissed the

28
“Video-conferencing on anvil: Plan to Tackle Jail-Court Route Security Lapses”, The Statesman, January 1,
2007, p. 12
29
(2012) 9 SCC 1
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

appeal taking in consideration the IMEI number of the mobile of the

deceased, Call records and other relevant evidences.

38. Ramlila Maidan Incident Vs. Home Secretary, Union of India &

Ors., MANU/SC/0131/2012

Electronic evidence considered in this case was CCTV footage and

recording in the CDs along with other evidences.

39. Amitbhai Anilchandra Shah Vs. The Central Bureau Of

Investigation & Anr., MANU/SC/0329/2013

Amitbhai Anilchandra Shah has filed the present Writ Petition under

Article 32 of the Constitution of India owing to the filing of fresh FIR by

the Central Bureau of Investigation (CBI) and charge sheet arraying him

as an accused in view of the directions given by this Court to the Police

Authorities of the Gujarat State to handover the case relating to the

death of Tulsiram Prajapati-a material witness to the killings of

Sohrabuddin and his wife Kausarbi to the CBI in Narmada Bai v. State of

Gujarat and Ors. The mobile call details pertaining to the case

important piece of evidence not only against accused Shri Amit Shah but

other police officers of Gujarat and Rajasthan, who worked at his behest

to cover up the fake encounter that killed Tulsiram Prajapati, yet the

court allowed the writ petition of the accused considering the other

factors.
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

40. Sanjay Dutt (A-117) Vs. State of Maharashtra through CBI (STF),

Bombay, [Alongwith Criminal Appeal Nos. 1102 and 1687 of 2007]

AND The State of Maharashtra,through CBI Vs. Ajai Yash Prakash

Marwah (A-120) [Alongwith Criminal Appeal No. 392 of 2011] AND

Samir Ahmed Hingora (A-53) Vs. The State of Maharashtra, thro.

Superintendent of Police, CBI (STF), Bombay [Alongwith Criminal

Appeal No. 1001 of 2007] AND The State of Maharashtra, through

CBI (STF), Bombay Vs. Samir Ahmed Hingora (A-53)

MANU/SC/0264/2013

The appeals are directed against the final judgment and order of

conviction and sentence dated 28.11.2006 and 31.07.2007 respectively

by the Designated Court under TADA for the Bombay Bomb Blast Case,

Greater Bombay in B.B.C. No. 1/1993. The appeals made by all the

accused have been dismissed by the court, in light of the call details

and other oral & documentary evidences.

41. Animal Welfare Board of India Vs. A Nagaraja and Ors.,

MANU/SC/0426/2014

While considering the photographs and other relevant eviences, the

Appeals, transferred cases and the Writ Petition are disposed by the

court, setting aside the judgment of the Madras High Court, but
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

upholding the judgment of Bombay High Court and the notification dated

11.7.2011 issued by the Central Government.

42. Re. Vs. India Women says gang rape on orders of village court

published in Business and Financial news,

MANU/SC/0242/2014

The Court, based on the news item published in the Business and

Financial News dated 23.01.2014 relating to the gang-rape of a 20 year

old woman of Subalpur Village, P.S. Labpur, District Birbhum, State of

West Bengal on the intervening night of 20/21.01.2014 on the orders of

community panchayat as punishment for having relationship with a man

from a different community, by order dated 24.01.2014, took suo motu

action and directed the District Judge, Birbhum District, West Bengal to

inspect the place of occurrence and submit a report to this Court within a

period of one week from that date. However, the said suo-moto

proceeding was disposed off by the court.

43. Suresh Kumar Vs. Union of India, MANU/SC/1304/2014

Considering that the electronic records were admissible evidence in the

criminal trial also. Sec 65A & 65B of the Indian Evidence Act make such

record admissible subject to fulfillment of requirements stipulated therein

which include a certificate in terms of sec 65B (4) of the said act. To that

extent the appellant has every right to summon whatever is relevant and
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

admissible in his defence including electronic record and finding out

location of officers affecting the arrest. The court allowed tha appeal

thereby directing the Trial Court to summon from the companies

concerned, call details of SIM & telephone number.

44. Sanjay Singh Ramrao Chavan Vs. Dattatray Gulabrao Phalke,

MANU/SC/0040/2015

In stating the evidentiary value of a voice recording,the court relied

upon the judgment of Anvar P.V. , 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.

45. Tanvi Sarwal Vs. Central Board of Secondary Education and

Ors., MANU/SC/0681/2015

All these Writ Petitions, analogously heard, register a challenge to the All

India Pre-Medical and Pre-Dental Entrance Test, 2015 held on

03.5.2015 under the aegis of the Central Board of Secondary Education,

New Delhi having been perceived by the Petitioners to have been

irreversibly vitiated by the use of unfair means and malpractices through

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

electronic gadgets and devices facilitating the illegal and unfair access to

90 answer keys during the examination conducted on 03.5.2015 to the

beneficiary candidates of such corrupt design at the behest of a

syndicate for unlawful gain. On considering the electronic evidences

discovered during the investigation, i.e. SIM cards, Bluetooth devices,

SMSs; the court allows the petitions.

46. Tomaso Bruno Vs. State of U P, MANU/SC/0057/2015

This appeal is directed against the judgment dated 4.10.2012 passed by

Allahabad High Court in Criminal Appeal No. 5043 of 2011 in which the

High Court confirmed the conviction of the Appellants Under Section 302

read with Section 34 of Indian Penal Code and the sentence of life

imprisonment and fine of Rs. 25,000/- imposed on each of them.

Emphasizing on the production of CCTV footage, call details, SIM

cards, etc as the best evidence, the court allowed the appeal so made

since the said evidences were not presented by the prosecution.

47. Uday Kumar Singh Vs. State of Bihar,MANU/SC/0756/2015

These appeals are against a common judgment and order dated

04.03.2009 passed by the Patna High Court in Death Reference Case

No. 4/2007 and Death Reference Case No. 12/2008 along with the

criminal appeals filed by the accused persons against the judgment and

order of the trial court. The trial court convicted the accused persons and
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

awarded death sentence, which was referred before the High Court for

confirmation. The High Court after hearing the parties set aside the

judgments and orders of conviction passed by the trial court against the

accused persons. Hence, these appeals have been filed by the

informant/complainant before this Court. Not considering the electronic

and other evidences against the accused, the appeals have been

dismissed by the court.

48.Vinod Kumar Subbiah Vs. Saraswathi Palaniappan,

MANU/SC/0492/2015

These Appeals assail the judgment of the learned Single Judge of the

High Court of Judicature at Madras, Bench at Madurai, delivered on

13.3.2013, setting aside the judgment dated 25.8.2011 of the Trial Court.

The Impugned judgment dismissed the divorce petition filed by the

Appellant. The appeal is allowed by the court, thereby considering the

evidences i.e. voice mails and emails. However, these evidences was

not considered to be as main evidence yet were accepted as the

evidence intended to substantiate the evidence.

HON'BLE UTTARAKHAND HIGH COURT.

49. Simon Dunolz Vs. State of Uttarakhand, MANU/UC/1608/2011

Court has dismissed the appeal made by the accused-appellant and

affirmed the conviction recorded by the Trial Court based on the recovery
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

of materials like laptop, mobile phones, email printout, etc and other

evidences.

50.Yogesh Sharma Vs. State of Uttarakhand, MANU/UC/1691/2011

The court allowed the bail application of the applicant taking in account

the CCTV recording of the hotel wherein only the accused and the

deceased is seen.

51.Ashok Kumar Kundi Vs. State of Uttarakhan MANU/UC/0168/2013

The court has dismissed the appeal and affirmed the order of conviction

given by the Trial judge. The accused is punishable under sec 302

(MURDER) as well as sec 404 (MISSUSE OF THE VICTIM’S ATM

CARD, evident from the CCTV recording) of IPC .

52.Dablu Singh Alias Dampi Vs. State of Uttarakhand,

MANU/UC/0039/2013

This is a murder case, where in the accused and co-accused are

charged under Sec 302, 32,404 & 411 of IPC. However, the appeals

made by the accused is dismissed, conviction and sentence given by the

Additional Sessions Judge is affirmed on the basis of the call details of

the mobile phone of the deceased for the period after his death and

could lay hand to both the accused.

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

53.Hari Krishna Bhatt Vs. State of Uttarakhand, MANU/UC/0544/2013

Aggrieved against the submission of charge sheet for the offences

punishable under Sec 292,294 of IPC and 67 of IT Act, the present

application has been filed by the applicant. The application made by the

applicant (Hari Krishna Bhatt) is allowed under sec 482 of CrPC and the

charge-sheet framed on Sec 292, 294 (CrPC) and sec 67 of IT Act

against the applicant and another is quashed by the court, finding no

relevant evidence out of the CD so produced for conviction under the

above mentioned sections.

54. Jai Chand Vs. State of Uttarakhand,MANU/UC/0401/2013

The appeal is preferred by two out of the three accused, who were found

guilty for the offences under Sec 364A, 302,201/34 of IPC after the

conclusion of the trail. The appeal made by the appellant convicts is

allowed by the court, quashing the judgment of conviction and sentence.

Since the evidence put in light, specially the call details of PW1 & PW3

contradicts their own statements, hence the benefit of doubt is given to

the appellants.

55. Mahesh Kumar Vs. Stae of Uttarakhand, MANU/UC/0256/2013

The appeal is directed against the judgement whereby court has

convicted the accused/appellant Mahesh Kumar under section 302 read

with section 34 of I.P.C., and sentenced him to imprisonment for life and
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

directed to pay fine of Rs. 10,000/-. The court accepts the judgment

given by the Trial Court of conviction on considering the call details of

the mobile of the deceased which was looted and used by the accused,

as one of the important evidence and thereby rejecting the appeal made

by the accused.

56. Arif Vs. State of Uttarakhand, MANU/UC/0480/2013

This is an application seeking regular bail ,under Sections 8/20 of

Narcotics Drugs and Psychotropic Substance Act, Police Station Patel

Nagar, District Dehradun. The FIR in question, made against the

applicant has been quashed by the court and the court has directed for

the investigation on the police officers for their malicious prosecution

evident from their call details.

57. Raju Thapa Vs. State of Uttarakhand, MANU/UC/0176/2013

This criminal appeal under sec. 374 of Cr.P.C. is directed against the

judgment and order , passed by District and Sessions Judge Bageshwar

District Bageshwar in Sessions Trial No. 4 of 2011, State v. Raju Thapa,

convicting the accused Raju Thapa under S. 376, I.P.C. and Section 67A

of The Information Technology Act, 2000 and sentencing him to undergo

R.I. for ten years and to pay a fine of Rs. 10,000/- u/S. 376, I.P.C. and in

default of payment of fine to further undergo six months R.I. and further

sentencing him to undergo R.I. for two years u/S. 67 A of The

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

Information Technology Act and a fine of Rs. 10,000/- and in default of

payment of fine to further undergo six months R.I. The appeal made by

the accused is allowed by the court since the prosecution after

presenting the electronic evidence i.e. CD which had the video clip,

failed to prove its case against the accused beyond all reasonable

doubts.

58. Ajeem Parvej Vs. State of Uttaranchal, MANU/UC/0045/2014

This appeal challenges the judgment and order of conviction, rendered

by the Sessions Judge, Pithoragarh wherein the accused/appellant was

tried for the offence under section 376 of I.P.C. and section 3(1)(XII) of

the SC/ST Act. The trial culminated into conviction for the offence of

section 376 of I.P.C., while for the offence of 3(1)(XII) of the SC/ST Act,

he was acquitted. Taking in consideration the electronic evidence i.e. the

video clip of the victim made by the accused, the court has dismissed

the appeal of the accused and affirmed the judgment so given.

59. Rihan Vs. State of Uttarakhand, MANU/UC/0111/2014

The challenge herein is to the judgment and order of conviction rendered

by the Sessions Judge, Dehradun convicting the appellant Rehan for the

offence of Sections 363, 366 and 376, IPC as well as for the offence of

Section 67 of the Information Technology Act, 2000 and Section 4/6 of

the Indecent Representation of Women (Prohibition) Act, 1986. The

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

court dismissed the appeal made by the accused considering the

electronic evidences i.e. the video clip and nude pictures of the victim

made by the accused and also circulating the same through the

electronic media.

MEGHALAYA HIGH COURT

60.Sushil Kumar Gupta Vs. Central Bureau Investigation,

MANU/MG/0027/2013

This appeal is directed against the judgment and order dated 23.06.2009

convicting the accused/appellant under Section 7 as well as Section

13(1)(d)(i) read with Section 13(2) of the P.C. Act and sentencing him to

undergo rigorous imprisonment of 6 months and fine of Rs. 10,000/- in

default of payment thereof and further imprisonment of 2 months for the

offence under Section 7 of the P.C. Act and further sentenced to

undergo imprisonment for 1 year and imposition of fine of Rs. 20,000/- in

default thereof to undergo further imprisonment for 4 months for the

offence under Section 13(1)(d)(i) of the P.C.The court considers the

evidence against the accused, out of all one being the audio cassette. It

allows the impugned judgment and order and dismisses the appeal

against the said judgment.

61.Smti. Islida Mary Thyrniang Vs. Union Of India,

MANU/MG/0058/2014
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

By means of this writ petition, the petitioner has challenged the detention

order dated 29-10-2013 of Shri Arphul Kharbani, passed and approved

by the respondent-authorities under Meghalaya Preventive Detention

Act, 1995 (for short MPDA). The writ petition by the detenue is allowed

and the detention order is dismissed by the court in the light of evidences

produced in favor of the detenue, amongst all, one was the copy of the

ATM card along with the withdrawal statement which states that detenue

was not in the town on the night of the incident.

TRIPURA HIGH COURT

62. Sarajendu Deb Vs. State of Tripura, MANU/TR/0353/2014

This criminal appeal is directed against the judgment and order of

conviction and sentence passed by learned Addl. Sessions Judge,

Agartala, West Tripura, in Sessions Trial Case No. 34 of 2012,

whereunder, the accused appellant was charged for an offence

punishable under Section 302 of IPC and at the conclusion of trial

learned Addl. Sessions Judge found the accused guilty of committing

offence punishable under Section 304 Part-II of IPC and sentenced him

to suffer RI for seven years. The court dismissed the appeal of the

accused while considering the video-graphy and photograph of the

evidences disclosed by the accused.

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

64. The Oriental Insurance Company Ltd Vs. Billal Miah & Ors.,

MANU/TR/0163/2015

This is a petition filed under Article 227 of the Constitution of the legality

of the order dated 19.04.2013 delivered in Civil Misc.(Review) 05 of 2011

by the Motor Accident Claims Tribunal, South Tripura, Udaipur , now

Gomati Judicial District. The review petition filed under Order XLVII Rule

1 of the C.P.C. being Civil Misc.(Review) 05 of 2011 questioned the

judgment and award dated 12.11.2010 delivered in T.S.(MAC) No. 200

of 2010, limiting the challenge to that the petitioner, the Oriental

Insurance Company was in no way liable to indemnify the damages of

the original respondent No. 2, who was the owner at the time of accident

of the offending vehicle inasmuch as there had been no insurance

coverage for the said vehicle on the day of the accident i.e. 21.08.2008.

According to them, the insurance policy was opened by them w.e.f.

25.08.2008 to be alive till 24.08.2009. As the accident had taken place

on 21.08.2008, by dint of the said policy, the respondent No. 2, the

owner of the offending vehicle could not have enjoyed indemnity.

While scrutinizing the electronic records and other evidences, the court is

of the view that the court is unable to decide the case due to the

absence of proper facts and documents and hence the petition shall be

reheard by the Motor Accident Claim Tribunal.

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

65. B.P. Gautam Vs. State of Sikkim, MANU/SI/0018/2015

The court considered the call details and the photographs during the

trap as the admissible evidences and thus, dismissed the appeal made

by the accused.

66. M. Londhoni Devi Vs. National Investigation Agency,

MANU/GH/0512/2011

The appellant has preferred this appeal against an order passed by the

Special Judge, NLA, Assam, Gauhati in Misc Bail Application No.

17/2011 declining bail to the appellant.The appellant has been in custody

since 18.08.2010 and is accused of offences under Sections 120(B),

121, 121(A)and 122 of the IPC read with Sections 16, 17, 18 and 20 of

the Unlawful Activities (Prevention) Act, 1967. The appeal is allowed by

the court disregarding the evidences i.e. the printouts of the

transactions made to the appellant by the UNLF showing her active

membership with UNLF, pointed out by the prosecution.

67.Ramvao Shimray Vs. State of Manipur, MANU/GH/0610/2011

Four leading citizens of the State of Manipur have filed this Public

Interest Litigation, entertained under Article 226 of the Constitution of

India, praying for quashing the Notification No. 1/20/2009-CHA (i) dated

26.04.2010 issued by the Chief Secretary to the Government of Manipur

setting in motion election of one member each from Autonomous District

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

Councils. The said Notification was purportedly issued under sub-rule (2)

of Rule 15 of the Manipur (Hill Areas) District Councils (Election of

Members) Rules, 2009. The petitioners are also praying for quashing the

follow up Notifications issued by Sub-Divisional Officer/Returning Officer

and fixing the schedule of Election. The writ petition has been dismissed

by the court stating that the action of respondents in obtaining the

signature of the Chief Secretary using electronic device i.e. Fax perse

cannot be said as illegal.

68.Shri Bidhi Chand Dhiman Vs. CBI, MANU/GH/0791/2011

These petitions are directed against a common judgment and order

dated passed by the learned Special Judge, CBI, Assam, Guwahati in

Special Case No. 3 of 2009 by which charge was framed against the

accused petitioners under Section 12 of the Prevention of Corruption

Act, 1988 read with Section 120B,IPC.The appeal (474 of 2011) made

by the second accused has been allowed on the basis of the evidences

so produced i.e. video clip and call details.

69.Shiva Jatan Thakur (Dr.) Vs. Union Of India & Ors,

MANU/GH/0513/2011

With the help of this petition, made under Section 482 of the Code

Procedure, read with Article 227 of the Constitution of India, the

petitioner, who is accused in G.R. Case No. 135/2011, arising out at

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

Dimapur East Police Station Case No. 73/2011, under Section

500/506/507/509 IPC, read with Section 66A/66E/67A of the Information

Technology Act, 2000 , has sought to get aside and quashed the First

Information Report, which has given rise to the case aforementioned,

and the Charge-Sheet, which has been submitted on completion of

investigation into the case. The FIR as well as the charge-sheet is

quashed by the court, not considering the electronic evidences produced

such as voice recording, messages, photographs; since the

procedure laid down in chapter IX of IT Act was not followed.

70.Utpal Debbarma and Anr. Vs. State of Tripura,

MANU/GH/07292012

This is a petition under Section 439 of the Code of Criminal Procedure,

1973 by Sri Utpal Debbarma, the accused petitioner, for granting bail in

connection with G.R. Case No. 280/ 1998 (arising from East Agartala

P.S. Case No. 37/1998), pending in the Court of the learned Addl. Chief

Judicial Magistrate, West Tripura, Agartala. The petitioner has been in

custody since 11.07.2011 and his bail application had been rejected

consecutively by the Addl. Chief Judicial Magistrate, West Tripura,

Agartala, Considering the electronic evidences i.e. Printout copies of

the information stored in some seized SIM cards, pen drives, memory
E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

cards, etc the dealing of the accused petitioner with NLFT was proved

and thereby his bail application was rejected.

71.Oinam Moniton Singha Vs. National Investigating Agency,

MANU/GH/0983/2012

Accused-appellant has filed this appeal, under Section 21(4) of the

National Investigation Agency Act, 2008, against the orde, passed by the

learned Special Judge, NIA, Assam, Guwahati, in Misc. Bail Application

No. 24/2011, in connection with Special NIA Case No. 1/2010, under

Sections 16 /17 /18 /20 of Unlawful Activities (Prevention) Act, 1967,

arising out of Noonmati Police Station Case No. 159/2010 registered

under Section 120(B) /121 /121(A) /122 of IPC, read with Section 10 /13

of UA(P) Act, whereby the prayer of the accused-appellant, Oinam

Moniton Singha, to allow him to go, on bail, The court, after considering

the evidences brought in light by NIA i.e. emails, details of bank

accounts and electronic media for communication, disposed off the

appeal made by the appellant.

72.Barasha Borah Bordoloi Vs. State of Assam,

MANU/GH/0371/2012

With the help of this application, made under Section 482 Cr.P.C., the

petitioner who is an accused in Karimganj Police Section Case No. 483

of 2011, under Sections 120B/384/385/389/353 IPC, read with Section

E-EVIDENCE – CONCEPT & ADMISSIBILITY OF EVIDENCE

66A of the Information and Technology Act, 2008, has sought to get set

aside and quashed the First Information Report (in short, 'FIR'), which

led to the registration of the case afore mentioned. The court overlooked

the evidences so produced by both the parties i.e. records of SMS, in

quashing the impugned FIR and thereby dismissed the petition of

quashing of the FIR.

THANK YOU