INTRODUCTION

The 21st century saw a technological revolution which enthralled not only India but the whole
world. We live in an electronic age where everyday transactions are conducted on the
electronic platform. The volume of electronic data is on the increase. Most of the transactions
are captured by electronic devices. This is a well known fact that the fact that the emergence
of electronic evidence has presented new challenges. In the area of criminal law, there is an
alarming increase in the wave of cybercrimes. The crimes range from advance fee fraud,
credit card frauds, online prostitution, illegal gambling, child pornography, blackmail, cyber
stalking, even culminating in murder as we can see in the recent case of Cynthia Osokogu.
The young lady was raped and murdered by her facebook friends. In the light of these
developments, the recent enactment of the 2011 Evidence Act to guarantee the admissibility
of electronic evidence is a step in the right direction.

ANALYSIS
When it comes to admissibility of electronic evidence in criminal trial it is very different
from the civil trial. In criminal matters where pleadings are not exchanged, admissibility is
governed, by relevance of such evidence and other strict rules of admissibility relating to a
free and fair trial. In essence, the rules of admissibility are more stringent in criminal
proceedings.1 Coming to the issue of the admissibility of electronic evidence; we must
understand that electronic documents are sui generis. They are very unique documents in a
class of their own.

The Microsoft Encarta Dictionary, 2008 Edition defines “evidence” as “something that gives
a sign or proof of the existence or truth of something, or that helps somebody to come to a
particular conclusion.” The word ‘electronic’ has been described as “relating to, using, or
accessed through a computer or computer network”.2

The admissibility of electronic evidence has always presented a very special challenge in the
process of adjudication. But, it is imperative that the law must keep pace with modern

1
See Raimi v Akintoye (1986) 3 NWLR (Pt.26 97; and Dagaci of Dere v Dagaci of Ebwa (2006) All FWLR (Pt.
306) 786
2
Microsoft Encarta Dictionary, 2008 Edition
developments.3 According to the sociological school of jurisprudence, the law should be an
instrument of social engineering.4

In Indian Evidence Act, 1872 Section 3 of the Act was amended and the phrase “All
documents including electronic records produced for the inspection of the court”. 5 Regarding
the documentary evidence, in Section 59, for the words “Content of documents” the words
“Content of documents of electronic records’ have been substituted and Section 65A & 65B
were inserted to incorporate the admissibility of electronic evidence.6

As documents came to be digitized, the hearsay rule7 faced several new challenges and the
new special conditions for some secondary evidence created. As a result, more documents
were electronically stored and the adduction of secondary evidence of documents increased.8

In the Anvar case9, the Supreme Court noted that “there is a revolution in the way that
evidence is produced before the court”. Section 65A & 65B are non-obstante clause, it is
generally appended to a section with a view to give the enacting part of the section, in case of
conflict, an overriding effect over the provision in the same or other Act mentioned in the non
obstante clause an it was well observed by the Hon’ble Apex Court in Union of India and
Anr., v. G.M.Kokil and Ors10 and in case Chandavarkar Sita Ratna Rao V. Ashalata S.
Guram11. In State v. Mohd. Afzal And Ors12, the court held the computer generated electronic
records is evidence, admissible at a trial if proved in the manner specified by section 65B of
Indian Evidence Act. The case Dr. Imoro Kubor &Anor v Hon. Seriake Henry Dickson &
Ors13 is appears to be the locus classicus on the admissibility of electronic evidence for now.

3
In the old case of Esso West Africa Inc. v T. Oyegbola, ((1969) 1 N.M.L.R. 194 at 198 ) the court observed
that “The law cannot be and is not ignorant of modern business methods and must not shut its eyes to the
mysteries of the computer.”
4
Roscoe Pound: Social Control through Law, Transaction Publishers, 1942.
5
The Indian Evidence Act has been Amended by virtue of Section 92 of Information Technology Act, 2000
6
The intention of the legislature is explicitly clear i.e. not to extend the applicability of section 61 to 65 to the
electronic record.
7
Hearsay evidence is anything said outside a court by a person absent from a trial, but which id offered by a
third person during the trial as evidence. The law excludes hearsay evidence because it is difficult or impossible
to determine its truth and accuracy, which is usually achieved through cross examination. Science the person
who made the statement and the person to whom it was said cannot be cross examined, a third person’s account
of it is excluded. There are few exceptions to this rule which need no explanation here.
8
Section 62 of the Indian Evidence Act, 1872.
9
Anvar P.K. Vs. P.K.Basheer & Ors. (2014) 10 SCC 473
10
Union of India and Anr., V. G.M.Kokil and Ors. [(1984) Scr 196].
11
Chandavarkar sita Ratna Rao v. Ashalata S. Guram [(1986) 3scr 866]
12
State v. Mohd. Afzal And Ors (2003) DLT 385, 2003(71) DRJ 17.
13
Dr. Imoro Kubor &Anor v Hon. Seriake Henry Dickson & Ors (2013) 4 NWLR (Pt.1345), 534
The decision of the Supreme Court is in line with the decisions from other foreign
jurisdictions.

CONCLUSION
As analysed above the most of the transactions are now digital and hence there must be
continuous IT training for all those involved in the administration of justice. This leads us to
a more crucial aspect. Our courts need to be fully updated with IT facilities. The system
should be upgraded to meet the current exigencies. The court procedures should be fully
automated for optimum performance. Courts should be equipped with digital recording
facilities and should be on line real time. Otherwise, our manual system of operation may
pose a threat to this new regime of electronic evidence.

In the above analysis, modalities of the admissibility of electronic evidence in criminal trial
was examines the legal framework introduced by the Evidence Act of 2011. If the proper
foundation is laid electronic evidence can be admitted in evidence in criminal trials. We
should in my opinion also consider some authority from advanced jurisdiction and also look
into foreign decisions that have shed some light on some grey areas. Even if we don’t get any
benefit of foreign decision, we can break new ground. It is now left for the judiciary to take
up the challenge. I close with the immortal words of Lord Denning (Master of the Rolls):
“What is the argument on the other side? Only this that no case has been found in which it
has been done before.

That argument does not appeal to me in the least. If we never do anything which has not
been done before, we shall never get anywhere. The law will stand still whilst the rest of the
world goes on: and that will be bad for both”14

Strict compliance with section 65B is now mandatory for persons who intend to rely upon e-mails,
web sites or any electronic record in a civil or criminal trial before the courts in India. Also there is a
different process of collection and preservation and analysis of the digital evidence which need to be
done by the forensic expert only.

14
Packer V Packer (1953) 2 AER 127 at 129