In democratic country the law is based on the principle of “Innocent until proven guilty. The onus is on the prosecution to prove beyond the reasonable doubt that the accused has committed the offense. It is the duty of both the parties to provide the best evidence which are admissible by court. The evidences obtained from improper source are inadmissible and hinders the criminal investigation of the court. It is important to gather or produce such evidence which strength the case and have utmost effect on the case.
With the change in law, Indian court has developed several case laws giving reliance on electronic evidence. This increasing reliance in electronic means of communication and data storage, e-commerce and e-governance in public and private sector has certainly caused the need to transform law relating to information technology and rules for admissibility of electronic evidence in both civil and criminal matters in India.
The term “admissibility” is defined in section 17 of Indian Evidence Act, 1872. In legal sense, the section says that admission will be relevant only if it is made by any of the person specified in this Act. A fact, point or statement admitted; as the admission made out of court are received in evidence.
RELEVANCY AND ADMISSIBILITY OF FACT
Fact has been explained under section 3 of Indian Evidence Act, 1872 (IEA). Facts means a thing that exits. Legally, relevancy and admissibility has distant meaning. All admissible evidence is relevant but all relevant evidence is not admissible by the court. All facts that are to be produces in court must be logically relevant as well as legally admissible. According to Janab’s Key to Evidence, relevancy refers to the degree of connection and probative value between a fact that is given in evidence and the issue to be proved. Section 5-55 of Indian Evidence Act, 1872 deals with relevancy of facts. In State of UP v. Raj Narain it was held that all relevant fact shown are not admissible.
The admissibility of evidence helps in deciding whether a particular piece of evidence will help in concluding a case. The admissibility of evidence is a question of law and decided by the judge as per section 136 OF Indian Evidence Act, 1872. Oftenly, the concept of admissibility is distinguished from relevancy. Admissibility is based on Law whereas relevancy is based on logic, common sense, practical or human experience and knowledge of affairs. Relevancy is question of fact which is the duty of lawyer to decide whether to tender such evidence in the courtroom. It is the duty of the court to decide whether the evidence should be admissible in court as said in the case of Public Prosecutor v. Dato Seri Anwar bin Ibrahim.
EVIDENCE ADMISSIBLE IN COURT
The relevant fact given under section 5-55 of Indian Evidence Act, 1872 is admissible in court. The evidences under Section 3 of Indian Evidence Act includes:
- All the statements which are required and admissible before the court or in front of magistrate by the witness in relation to matter of fact under inquiry.
- All the documents including electronic records produces for inspection as per the order of the court.
Court considers those evidence which are relevant and reliable. The evidence must prove or disprove the fact in criminal case. If the evidence doesn`t relate to the issue it will considered irrelevant and thus inadmissible. Reliability refers to the creditworthiness and authenticity of source that is being used in evidence. This usually applies to the witness testimony and electronic documents.
The section 136 of Indian Evidence Act, 1872 gives the power to judge to decide whether the evidence is admissible or not. The presiding officer may ask the party to justify how the particular evidence or fact is relevant under section 6-55 of Indian Evidence Act, 1872. Technically, the question of relevance comes first and then the question of admissibility.The court has to determine relevancy of a particular fact keeping in view the fact-in-issue. A fact may be logically as well legally be relevant to the fact-in-issue. Yet, it may be inadmissible.
Example: Confession made to a police officer. This may be relevant to the point-in-issue but section 25 of the Act bars it admissibility. Confession made while police custody by accused is also not admissible by court under § 26 of the Act even though it is logically relevant. Irrelevant facts are not admissible in court. However, in certain cases, evidence which are not relevant under section 5 to 55 may still be admissible. Example:
- Statement of relevant fact by a person who is dead or cannot be found.
- Impeaching credit of witness.
ADMISSIBILITY OF E-EVIDENCE
The evolution of Information Technology gave the birth to cyber space wherein the internet provides opportunities to all the people to access any data or information, data storage and be part of this virtual world. With the growing reliance on electronic means of communication, e-commerce and digital storage of data causes transformation in law relating to information Technology and rules of admissibility of electronic evidence in both civil and criminal matters.
By the virtue of Information Technology Act, 2000 it allows for the admissibility of digital evidence in court. Various forms of Electronic evidence are increasingly used in judicial proceeding. The categories of e-evidence include CDs or DVD, CCTV, social network communication, e-mails, instant chat messages, SMS/MMS and computer generated documents poses unique problem and challenges of proper authentication and can be manipulative. So, there is basically two types of electronic evidence:
- Data stored in computer system or any electronic device.
- Information transmitted electronically through network.
By the virtue of Information Technology Act, §65B was inserted into Indian Evidence Act, 1872 was an attempt to modernize Indian evidentiary practices and advances the proceeding method by technology. The provision deals with computer output such as printouts, CDs, data on hard disks etc. be included in documents under Indian Evidence Act, 1872. However, despite good intention behind the amendment the provision still seeks reliability, accuracy and has been controversial.
Recently, Hon`ble supreme court of India in case Anvar P.V. v. P.K. Basheer , the court interpreted Section 65B(4), 22A, 45A, 65A and 59 of Indian Evidence Act,1872. Settling all the conflicting judgement and controversies all the courts by mandating one specific authentication method: certificate as described under section 65B (4) as a necessary precondition for admissibility of electronic evidence and this create uniformity.
In case Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke , the court relied in the decision of Anvar case while considering the admissibility of transcription of recorded conversation in which the recording has been translated. The court rejected the evidence as there was no point in placing reliance on translated version of voice recorder. Without source there is no authenticity for the translation. Source and authenticity are the two key for electronic evidence.
Therefore, it is concluded that those evidence which are relevant to the facts or issue in dispute are admissible in court. Evidence is the integral and indispensable part of both criminal and civil proceeding. In technological era, the admission of electronic evidence with its advantages is also complex at the same time. Many people invade the eye of law forever due to inadmissible evidence. The power is in judge of the court to consider E-evidence only if it fulfill three legal requirements of authenticity, source and integrity. After the decision of Anvar case, the rule of admissibility of electronic evidence is strict and making the court proceeding trustworthy and strong.
 AIR 1975 SC 865  1999 1 MLJ 321, CA 2014 10 SCC 473 2015)3 SCC 123
Author: Akriti Mishra,
Veer Narmad South Gujarat University, Surat, 2nd Year Law student