Almost, every crime today includes an electronic component in the form of computers and electronic technologies that are used to aid the crime. Computers used in crimes may hold a plethora of evidence pertaining to the crime, whether it is a traditional crime or a terrorist attack. As a result, judicial officials should not grow comfortable about persons or their surroundings just because the offence involves a computer. The judiciary should offer certainty to litigants, strengthen law enforcement authorities, and serve as a deterrent to offenders. The law is only as good as its execution. The effect of electronic media has extended across society, including the legal and judicial systems.
Maintaining the integrity of electronic evidence throughout the investigation and prosecution process offers distinct challenges than dealing with traditional physical or documentary evidence. The intricacy of networked computers exacerbates several typical difficulties. This article does not cover the particular difficulties that arise in networked contexts, but instead focuses on specific issues with the integrity of information obtained through stand-alone electronic media. Electronic documents are simple to manipulate: they may be copied, changed, updated, and deleted (deleted does not imply erased), or intercepted.
The judge must understand and appreciate that the information obtained from the media is a true and accurate representation of the information originally contained in the media, regardless of whether the acquisition was done entirely by law enforcement or partially or entirely by a civilian witness or victim. However, it provides guidance on how to interpret the laws pertaining to electronic evidence.
Digital evidence is evidence that is kept or transferred in binary form and has probative value. It may be found in emails, digital photos, ATM transaction logs, Internet Browser Histories, Global Positioning System (GPS) traces, and even records from electronic door locks in a building. Digital evidence is more plentiful, but it is more difficult to delete. It is simple to modify and reproduce. Failure to freeze the evidence before accessing files, along with the fact that simply opening the files alters them, creates a slew of problems. Then there’s the issue of identifying meaningful evidence among vast volumes of data. The following are the three types of computer generated evidences:
- REAL EVIDENCE – Calculations or analyses made by the computer itself as a result of software operating and information received from external devices such as built-in locks and remote sensors. This is referred to as genuine evidence.
- HEARSAY EVIDENCE – These are documents and records produced by the computer that are copies of information supplied to the computer by human beings. In Monotype Corp Plc V. International Typeface Corp., it was declared that a private email message was not a regular, systematic record of business activity, and was thus hearsay evidence. As regards the public documents however, it was held in Armstrong V. Executive Office of the President, that a government email is a record as per the Federal Records Act.
- DERIVED EVIDENCE – It is a data that mixes genuine evidence with data given to the computer by humans to create a composite record. This is also considered as hearsay evidence. (e.g.) Figure in the daily balance column of a bank statement because it is based on both genuine evidence (automatically produced bank charges) and hearsay evidence (individual cheque and paying in entries).
To protect the admissibility of digital evidence, the International High Tech Crime Conference (1999) set the following guidelines: –
- When access to original digital evidence is required, the person / individual must be forensically competent.
- All activities involving the seizure, access, storage, or transfer of digital evidence must be thoroughly documented, maintained, and accessible for inspection.
- A person is responsible for all acts made with regard to digital evidence while it is in their control.
Section 3 of the Indian Evidence Act of 1872 defines evidence in the Indian context to encompass electronic recordings as well. Furthermore, the meaning of admission under section 17 has been expanded to encompass an oral, documentary, or electronic declaration. Section 22A was added to the Act to provide admissibility of oral testimony concerning the contents of electronic records. Section 39 of the Proof Act has been modified to specify how much evidence must be provided when a statement is included in an electronic record.
When any statement for which evidence is given, becomes a part of an electronic record and evidence shall be given when no more of the electronic record is been considered by the court as necessary in that particular case as to fully understand the nature and effect of the statement and the circumstances under which it was made.
Section 47A specifies when an opinion Vis – a – Vis digital signature is required. Section 67A defines what constitutes proof of a digital signature. Section 73A specifies the type of proof necessary for verification, while Section 85A establishes a presumption in the case of electronic agreements. Section 85B contains the presumption for electronic records and digital signatures, while Section 88A contains the presumption for electronic messages. Section 90A also has a presumption about electronic records that are more than five years old.
ADMISSIBILITY OF ELECTRONIC RECORDS AS EVIDENCE
According to Section 65B of The Indian Evidence Act of 1872, the computer containing the original evidence is not required to be brought into Court. A printout of the record or a copy on CDROM, hard drive etc. can be provided in Court. However, a certificate must be issued and certain requirements must be satisfied.
In many cases, one portion of the industry misunderstands this section that printouts can be considered as proof and are valid as correct documents, even when they are not signed. Many company created letters emanating from large corporations have the proper space below for signature under the words ‘Yours Faithfully or ‘Yours Truly’ and the signature space left blank, with a Post Script remark at the bottom. This is a computer generated letter and thus does not require signature.’ The Act nowhere states that ‘Computer printouts do not need to be signed and can be accepted as a ‘Record.’
At the time when emails are allowed, the Hon’ble Higher Court in Ankur Chawla V. CBI said, in order under Section 65B R/w Section 88A of the Indian Evidence Act, that an email that has been downloaded and printed from an email account can be proven. The Court remarked that the secondary evidence of electronic evidence without certification under the proviso of 65B of the Indian evidence Act is admissible in Abdul Rahaman Kunji V. The State of West Bengal (when considering the admissibility of intercepted telephone calls). The Hon’ble Supreme Court settled all disputes in Anvar P.V V. P.K. Basheer and Ors about admissibility of electronic evidence, including all dispute over the numerous conflicting rulings as well as in the different High Court and Trial Courts’ procedures.
Section 22A, 45A, 59, 65A and 65B of the Indian Evidence Act have been interpreted by the Court. The two hallmarks for electronic records are intended as proof for usage. All these guarantees are taken in order to guarantee the source and authenticity. The whole trial based evidence of electronic records might lead to traverse of justice, since electronic records are more vulnerable to tampering, alteration, transfer, excision etc.
In State V. Navjot Sandhu, the Court concluded that ‘Printouts obtained by mechanical process from computers / servers must be certified by a responsible official of the service provider company which can be brought into evidence by a witness who can identify the signatures or otherwise speak the circumstances based on his own personal knowledge. Whatever, the criteria set forth in Section 65B….. There are no barriers in the other sections of the Evidence Act, particularly Sections 63 and 65.’ There can be no secondary evidence that can be provided for.
The Court examined the following points in State V. Mohd. Afsal & Ors, (known as the Parliament Attack Case):
- In force, the same effect applies to Article 65B of the Indian Evidence Act and to Article 69 of the English Act.
- In England, it is presumed by common law that ‘in the absence of proof to the contrary, the courts infer that the mechanical devices at material time have been in order’ is fully operative.
- Computer network development is gradually making it more difficult to unrecognized computer failures.
Therefore, the Court remarked that the challenger must create a problem if anyone disputes the correctness of the computer evidence on the basis of system misuse or operating failure. At the heart of the problem is that the Judge does not have to be convinced by technological evidence, but should use the functional equivalent method to access information.
However, in comparison to additional documented evidence, Tukaram Dighole V. Manikrao Shivaji Kokate, the Hon’ble Supreme Court of India determined that the electronic evidence standard should be more precise and severe.
EXAMINATION OF WITNESSES THROUGH VIDEO CONFERENCING
Under the English law, the proof is expressly provided in the Statute through video conferencing (Section 32 of the Criminal Justice Act, 1988). Section 62A of the Evidence Act has also been established in Singapore with relation to ‘Education by means of Live Videos or Live TV Links.’ In India, although the usage of video conferencing is not legally applicable, this technology was allowed by the Supreme Court and modified after 2003.
If fact, the conditions for video recording of evidence have been laid down in Twentieth Century Fox Film Corporation V. NRI Film Production Association (P) Ltd. In Bodala Murali Krishna V. Bodala Prathema and In Amitabh Bagchi V. Enabagchi, it was held that recording of evidence through video conferencing is permissible in law provided that necessary precautions must be taken both as to the identity of the witnesses and accuracy of certain guidelines as indicated in the judgments.
In situations where the witness cannot be present because of his or her health, a video conference may also be employed. Video conferencing can be utilised in situations when the victim is a sexually exploited kid or a victim of natural crimes. Videoconferencing may aid not only in avoiding unnecessary postponement, but also in saving transportation money. In subordinate courts where criminal proceedings are postponed for lack of security escorts in jail. In instances where the safety of the accused or of a witness is justified, the Court does not order them to present evidence through video conference without requiring them.
It is time to toss old clothes aside that have come to pass and no longer meet the demands of the new generation. Obviously, we have to implement the observations made in the four decades since the Apex Court: “Nothing more primitive in our technological age can be thought of than the denial of discoveries, and nothing more cruel can delay forensic efficiency than the weariness of traditional oral evidence only by discouraging the liberal use of scientific aid to prove guilt.”