The type of evidence that we are dealing with has been variously described as ‘electronic evidence’, ‘digital evidence’ or ‘computer evidence‘. Definitions of digital evidence include ‘Information of probative value stored or transmitted in binary form; and ‘Information stored or transmitted in binary form that may be relied on in court. The Electronic evidence are –
(1) data (comprising the output of analogue devices or data in digital format) that is manipulated, stored,
(2) 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 the evidence. This definition has three elements.
(a) all forms of evidence that is created, manipulated or stored in a product that can, in its widest meaning, be considered a computer, excluding for the time being the human brain
(b) it aims to include the various forms of devices by which data can be stored or transmitted, including analogue devices that produce an output. Ideally, this definition will include any form of device, whether it is a computer as we presently understand the meaning of a computer;
(c) restricts the data to information that is relevant to the process by which a dispute, whatever the nature of the disagreement, is decided by an adjudicator, whatever the form and level the adjudication takes.
In 1984, the FBI began to use computer evidence and after 7 years in 1991, a new term; “Computer Forensics” was coined in this field. In India the IT Act 2000 was notified and along with it the Indian Evidence Act, 1872 got amended with several new sections being added to address the issue of Electronic Evidence. In the year 2000, with the introduction of the Information Technology Act, 2000 (‘IT Act’), which brought in corresponding amendments to existing Indian statutes to make digital evidence admissible. The IT Act, which is based on the UNCITRAL Model Law on Electronic Commerce, led to amendments in the Indian Evidence Act, 1872 the Indian Penal Code, 1860 (‘IPC’) and the Banker’s Book Evidence Act, 1891.
Provisions of Indian Evidence Act, 1872 for the purpose of admissibility of electronic evidence
For the purpose of admissibility of electronic evidence the new Sections, 65-A and 65-B are introduced to the Indian Evidence Act under the second schedule to the IT Act, 2000. Section 5 of the Indian Evidence Act provides that evidence can be given regarding only facts that are at issue or of relevance. Section 136 empowers a judge to decide on the admissibility of the evidence. New provision Section 65-A provides that the contents of electronic records may be proved in accordance with the provisions of Section 65-B.
(a) The nature of Digital Evidence in Electronic Form, Electronic Records & Information, all as defined in IT Act, 2000.
(b) In the Indian Evidence Act, 1872 the new Sections 65-A and 65-B are introduced for the purpose of admissibility of digital evidence. Electronic records to be admissible as documentary evidence.
(c) Section 136 of the Indian Evidence Act empowers a judge to decide on the admissibility of the evidence.
New provision Section 65- A of Indian Evidence Act provides that the contents of electronic records may be proved in accordance with the provisions of Section 65-B of Indian Evidence Act.
(d) Section 65—B of Indian Evidence Act provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record (ie, the contents of a document or communication printed on paper that has been stored, recorded and copied in optical or magnetic media produced by a computer.
Conditions for the admissibility of electronic Evidence—
The following conditions as set out in Section 6S(B)(2) must be fulfilled :
(a) The person having lawful control over the use of the computer; [Section 65B(2)(a) of Indian Evidence Act]
(b) Regularly fed into the computer in the ordinary course of the said activities; [Section 65-B(2)(b) of Indian Evidence Act]. ‘
(c) The computer was Operating properly [Section 65—B(2)(c) of Indian Evidence Act]
(d) 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‘ [Section 65-B(2)(d) of Indian Evidence Act]
State v. Mohd. Afzal, 107(2003) Delhi Law Times 385 (DB) It was held that under Section 65-B of Indian Evidence Act, computer-generated electronic records is admissible evidence at trial if proved in manner specified by Section. Electronic record in the form of a print out compliance with sub—sections (1) and (2) of Section 65-B is enough to make admissible and prove electronic records. This conclusion flows out, even from the language of sub-section (4).
Dharambir V. CB], 148 (2008) DLT 289 (Del), The Delhi High Court held that the wide definition of the words ‘document’ and ‘ ‘evidence’ in the amended Section 3 of the Indian Evidence Act, read with Section 2(o) and 2(t), of IT Act, a hard disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 of Evidence Act. When Section 65-B Indian Evidence Act talks of an electronic record produced by a computer (referred to as the computer, it would also include a hard disc in which information was stored or was earlier stored or continues to be stored. Section 65(B)(1) Indian Evidence Act states that copies of an electronic record transferred to another medium would be deemed to be a document admissible in evidence subject to the conditions in Section 65(2) EA being complied with. The court held that printouts taken from the computer/server by mechanical process ‘ as Contemplated under Sections 65 and 65-A of the Indian Evidence Act.