Divyanshi Jain, a fourth-year student at the law school of LCIT College in Bilaspur (C.G.), is the author of this paper. This article has covered the topic of electronic evidence.
ABSTRACT
This article provides a detailed discussion of the topic of electronic evidence. The Article begins with an Introduction to the topic. Firstly, discuss the meaning of electronic evidence or digital evidence, the definition of Evidence with the section of Indian Evidence Act 1872, and the meaning of cybercrime. Then, Amendments of digital or Electronic Evidence are also discussed, and the development of the concept of Electronic Evidence in India. Statutory provision related to electronic evidence in the Indian Evidence Act, 1872. And Judicial pronouncements on the relevance and admissibility of electronic evidence. At the end conclusion of the whole Article.
INTRODUCTION
The phrase "Electronic Evidence" refers to a type of evidence produced by mechanical or electronic processes that are frequently pertinent in demonstrating or disproving a truth or fact in dispute, the data presented as evidence in court. Digital evidence is another name for electronic evidence.
Firstly, discuss the meaning of “Evidence’’: which is defined under section 4A of the Indian Evidence Act, 1872.
Evidence means and includes all statements that the court permits or requires to be made before it by a witness, in relation to matters of fact under inquiry, such statements are called oral Evidence.
All documents including electronic records produced for the inspection of the court, such documents called documentary evidence.
Secondly, discuss the meaning of ‘‘Cybercrime’’
Cybercrime, also called computer crime, is the use of a computer as an instrument to further illegal ends, such as committing fraud, trafficking in child pornography and intellectual property, stealing identities, or violating privacy Cyber crime refers to any criminal conduct that involves, a computer, computer network, or networked device. Most online crimes are conducted by hackers or online criminals who are after financial gain.
BACKGROUND
There was no provision for electronic evidence when the Indian Evidence Act of 1872 cameinto effect because digital and electronic systems had not yet emerged. Electronic evidence became law when technology and electronic systems advanced.Which is used to prove the case and isconsidered relevant.
Evolution of digital evidence:
Many people use electronic systems or devices to commit a crime or cybercrime. However, thanks to the booming field of digital evidence forensics, the police can now employ these tools to fight cybercrimes.
Electronic Evidence is important information stored or transmitted in digital form such as computer evidence, digital audio, or digital fax machines, that a party to a court case may use at trial. Section 79a of IT (Amendment) ACT,2008 defines.
At first, computer-generated records like log files were regarded as hearsay and were therefore not admissible in court. The Federal Rules of Evidence have been updated and case law has altered that. Rule 803 permits the admission of a record or report that was "made at or near the time by, or from information transmitted by, a person with knowledge if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation." This altered the dynamic in terms of the crucial part that digital evidence can play in inquiries and convictions. In essence, this means that activity logs that were previously inadmissible are now allowed. This increased the necessity for businesses to have forensic investigation software to track user activity, gather activity logs, and safely store them in case they ever needed to use the information for legal purposes.
As a result, the importance of digital forensics in the fight against crime is growing, and it is crucial for law firms and courts to create a well-thought-out plan for such investigations. The Supreme Court made it clear in Penderhill that the courts must respond to emerging technology developments in an appropriate manner.
When gathering evidence for a possible trial, digital forensics uses a method similar to crime scene forensics. Collecting, evaluating, and reporting digital evidence in a way that is admissible in court are all parts of the digital forensics process. Digital proof can also be used to demonstrate a person's involvement in non-technological crimes like homicide or theft.
Here are significant turning points in the development of digital forensics:
Hans Gross (1847–1915): He led the first criminal investigations using a scientific study.
To provide forensics services to all field agents and other law enforcement agencies around the USA, the FBI (1932) established a lab.
The Florida Computer Crime Act originally acknowledged the first computer crime in 1978.
Francis Galton (1982–1911) carried out the first fingerprint analysis that is known of.
The phrase "computer forensics" first appeared in scholarly writing in 1992.
1995 saw the formation of the International Organization on Computer Evidence (IOCE)
The First FBI Regional Computer Forensic Laboratory was founded in 2000.
“Best Practices’’ for Computer Forensics" was the title of the first book about digital forensics released by the Scientific Working Group on Digital Evidence (SWGDE) in 2002.
In 2010, Simson Garfinkel identified issues facing investigations.
STATUTORY PROVISION RELATED TO ELECTRONIC EVIDENCE THE INDIAN EVIDENCE
SECTION 3- ‘Evidence’ means and includes all statements that the court permits or requires to be made before it by the witness, in relation to matters of fact under inquiry, such statements are called oral Evidence. All documents including electronic records produced for the inspection of the court, such documents called documentary evidence.
SECTION 17- ‘Admission defined’ An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, hereinafter mentioned.
SECTION 22A- ‘When oral admission as to contents of electronic records are relevant
SECTION 34- ‘Entries in books of account including those maintained in an electronic form when relevant’
SECTION 35- ‘Relevancy of entry in a public record or an electronic record made in the performance of duty
SECTION 39- ‘What evidence to be given when a statement forms part of a conversation, document, electronic, book or series of letters of papers’
SECTION 47A- ‘Opinion as to electronic signature when relevant’
SECTION 65B- ‘Admissibility of electronic records
SECTION 67A- ‘Proof as to electronic signature’
SECTION 73A- ‘Proof as to verification of digital signature’
SECTION 81A- ‘Presumption as to Gazettes in electronic forms
SECTION 85A- ‘Presumption as to electronic agreements
SECTION 85B- ‘Presumption as to electronic records and electronic signatures
SECTION 85C- ‘Presumption as to electronic Signature certificates’
SECTION 90A - ‘Presumption as to electronic records five years old’
SECTION 131- ‘Production of documents or electronic records which another person, having possession could refuse to produce’
JUDICIAL PRONOUNCEMENTS ON RELEVANCE AND ADMISSIBILITY OF ELECTRONIC EVIDENCE
1. Union of India and Ors. v. CDR Ravindra v. Desai,
The court emphasized that the non-production of a certificate under 65B on an earlier occasion is a curable defect.
2. Sonu alias Amar v. State of Haryana,
The crucial test, as affirmed by the Apex court, is whether the defect of nonproduction of the certificate could have been cured at the stage of marking the document. If an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.
3. State v. M.R Hiremath,
The high court erred in coming to the conclusion that the failure to produce a certificate under section 65b of the Indian Evidence Act at the stage when the charge sheet was filed was fatal to the prosecution. The need for the production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise.
4. Tomaso Bruno and Ram Singh,
It was held that electronic evidence is admissible and provisions under Sections 65A and 65B of the Evidence Act are by way of clarification and procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the court being satisfaction such as whether the person producing such evidence is in a position to furnish a certificate under section 65-B(4).
CONCLUSION
Every action entails the creation of an electronic record as we increasingly move closer to the virtual world, which is a larger version of the real world. Electronic records are now considered to be the most important piece of evidence in every case. Therefore, there should be no room for doubt regarding the admissibility of such a piece of evidence. This stance, that the original electronic record and the computer output can be placed before the Court as evidence, has been clarified by Indian courts on occasion. Whereas a certificate needs to be attached to the computer output in the case of that. The same can always be refuted by the opposition on the basis of sincerity. An examiner of electronic records may be consulted in such cases.
Union of India and Ors. v. CDR Ravindra v. Desai,
(2017) 8 SCC 570
(2017) 8 SCC 570
(2019) (3) SCC (Cri) 109
[1985 Supp SCC 611
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