Due to enormous growth in the industry of e-commerce and tremensdous increase in e-crimes, electronic evidence gained its importance and it has involved into a fundamental pillar of communication, processing and documentation. The various forms of evidence are increasingly being used in both Civil & Criminal Litigations. During trials, Judges are usually asked to determine the admissibility of electronic evidence and it substantially impacts the outcome of civil law suit or conviction/acquittal of the accused in a criminal case. The Court continue to confront with this new electronic frontier as the unique nature of e-evidence, as well as the ease with which it can be manipulated or falsified, creates complication to admissibility not faced with the other evidence.
The various categories of electronic evidence including website data, social network communication, e-mail, SMS/MMS/CHAT and computer generated documents poses uncommon problems and challenges for proper authentication. Electronic Document in a brief:The Indian Evidence Act has been amended by virtue of Section 92 of Information 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. As per amended provision Sec 3(2) of evidence Act electronic evidence is documentary evidence. All documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence. Section 2(t) of Information Technology Act 2000 provides that electronic record’ means, data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;Section 4 of the Information Technology Act also provides that if the document in electronic form i.e. CD/DVD etc., is (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference, then it would be sufficient compliance.Section 22A declares that oral evidence as to the contents of electronic records are not relevant, unless the genuineness of electronic record produced is in the question. 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 Thana Singh Vs. Central Bureau of Narcotics Types of Evidence:Evidence can be classified under various categories, such as oral and documentary, direct and indirect, primary and secondary, hearsay and circumstantial, scientific and expert, paper based and digital. Any form of evidence may be sufficient to have a fact proved before the court, depending upon the facts and circumstances of the case. Section 59 of the Evidence Act provides that all facts except the contents of documents or electronic records, may be proved by oral evidence. Documentary evidence, on the other hand, is evidence produced in the form of documents. Electronic Evidence-Electronic evidence is any probative information stored or transmitted digitally and a party to a judicial dispute in court can use the same during the trial. Courts permit the use of digital evidence such as e-mails, digital photographs, word processing documents, instant message histories, spread sheets, internet browser histories, data bases, the contents of computer memory, computer backup, secured electronic records and secured electronic signatures, Global Positioning System tracks, Logs from a hotel’s electronic door, Digital video or audio etc. As per explanation under Section 79A(Chapter XIIA) of the IT Act, 2000, electronic form of evidence’ means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines. Section 79A of IT Act ,2000 provides that The Central Government may, for the purpose of providing expert opinion on electronic form of evidence before any court or other authority specify, by notification in the official Gazette, any department, body or agency of the Central Government or State Government as an Examiner of Electronic Evidence. Secure communications on internet are possible by using encryption techniques and electronic signatures that authenticate the origin and integrity of an electronic record. The electronic records and signatures are generally recognized as legally valid under Section 4 and 5 of the IT Act,2000.Under Section 6 of the IT Act, 2000, electronic records and electronic signatures can be used in Government and its agency. Hence they are admissible in a court of law. Whenever a dispute regarding online contracts or e-crimes is to be adjudicated by a court, production of admissible evidence becomes a focal point of determination of merit of the case.Relevancy of Electronic Evidence:This accelerated use of technology, however, poses challenges accommodating and reflecting the new age developments in laws across jurisdictions, which in turn has provided the much required impetus to the emergence and appreciation of digital evidence. Keeping up with the times, requisite amendments were also made to Indian laws in the year 2000 with introduction of the Information Technology Act, 2000 (IT Act’), which brought in analogous amendments to past 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 (Evidence Act’), the Indian Penal Code, 1860 (IPC’) and the Banker’s Book Evidence Act, 1891. With the change in law, Indian courts have developed case law regarding assurance on electronic evidence.