Electronic Evidence With Case Laws For Public Prosecutors of MP by Prashant Mali

Adv. (Dr.
) Prashant Mali
Masters in Computer Science(MSc.), Masters in Law(LLM), Ph.D.(Cyber Law)
(Certified Computer Forensics Professional(CCFP)), CISSA, Chevening (UK) Fellow
Bombay High Court Lawyer, India
Speaker, Author, TV Personality & Expert in Cyber Law & Data Protection
Founder & President – Cyber Law Consulting (Advocates & Attorneys) A Law Firm
Chairman – Cyber & Law Foundation (Regd. Trust since 2005)
Member – Maharashtra State Women's Commission (Cyber crime committee )
Member – State Election Commission (Social Media Experts Committee)
Adv (Dr.) Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
What is Electronic Evidence?
Definition (for the purpose of this presentation):
Electronic Evidence is “data or information
of probative value that is stored or
transmitted in the binary form”
..Adv (Dr.) Prashant Mali
Adv (Dr.) Prashant Mali - Cyber Law Expert (prashant.mali@cyberlawconsulting.com)

Where is Electronic Evidence Found in crime
against women
- Drones
- Robots
- IoT Devices in smart cities
- Self driven vehicles
- Public CCTVs etc

Heart Pacemaker as evidence
A Ohio Court judge has
ruled that a pacemaker can
be used as evidence in the
court of law
The electronic data stored
in his cardiac device led to
a mans arrest and
subsequent indictment on
charges of arson and
insurance fraud.

Definition of Evidence as per IEA
The Act amends the definition of ‘Evidence 'in
Section 3, the interpretation clause of the Indian
Evidence Act 1872, to state:
‘Evidence’ means and includes
1) ..
2) All documents including electronic records

produced for the inspection of the Court

What is Data ?
2(o) "Data" means a representation of
information, knowledge, facts, concepts or
instructions which are being prepared or have
been prepared in a formalised manner, and is
intended to be processed, is being processed
or has been processed in a computer system
or computer network, and may be in any form
(including computer printouts magnetic or
optical storage media, punched cards,
punched tapes) or stored internally in the
memory of the computer;
Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
What is an Electronic Record ?
• According to section 2(1)(t) of the
Information Technology Act, 2000
“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.

Whether electronic record can be exhibited only
by the person who has issued Certificate ?
• It is not mandatory to call the person

issuing the certificate unless objected
and integrity is doubtful.
• –K Ramajayam @ Appu Vs Inspector
Of Police, 2016 CrLJ 1542 (Mad)
Adv Prashant Mali - Cyber Law Expert (prashant.mali@cyberlawconsultiung.com)

S65B certificate at the time of Bail
• Pravata Kumar Tripathy -V/s.- Union of
India (C.B.I.) 19(2015)CLT177,
2014(II)OLR941 -
• At the time of consideration of bail application, it
is not at all necessary to ask prosecution to first
satisfy the fulfillment of all the criteria laid down
in the case of Anvar P. V. Vs P. K.
Basheer before taking into account Forensic
Voice Examination Report as well as
transcription of CD.
What Stage of trial Certificate
Under Section 65B CAN BE FILED?
• Paras Jain v. State of Rajasthan,
[MANU/RH/1150/2015]
Certificate U/S 65B of The IEA can be filed at any stage of
the trial
• Kundan Singh v State 2015 SCC OnLine Del
13647
The said certificate can be produced when the electronic
record is to be admitted and taken on record, i.e., when
the prosecution, defence or a party to the civil litigation
wants the electronic record to be marked as an exhibit and
read in evidence.”
T. M. S. Prakash Vs. State of A. P. (2017) ALT (CRL.) 269 (A. P.)
Stage of Trial..Contd
• State of Karnataka Lokayukta Police Station,
Bengaluru V. R. Hiremath, [Criminal Appeal No. 819 of
219; 2019 SCCOnLine SC734]
• Certificate under 65(B) can be supplied subsequent to filing
of charge sheet. Production of such a certificate is required
when the electronic record is sought to be produced in
evidence at the trial.
My Comment : In all the cases where the police has not filed the
certificate under Section 65B IEA, the same can be filed by way of
supplementary charge sheet under section 173(8) Cr.P.C. and this in no
way even stops the police to generate the same electronic record as fresh
and file in the court by way of charge sheet under section 173(8) Cr.P.C.

When certificate is not needed?
• Raj Kumar v. State, CRL.A. 232/16,
19.4.16 Delhi High Court
• Held that, Since the mobile phone of
witness (containing the photograph) itself
was produced in the Court and exhibited,
there was no need of a certificate under
Section 65-B Indian Evidence Act-
• The evidence is admissible.
**Facts Judicially Noticeable need not be
proved S(56) Adv Prashant Mali - Cyber Law Expert
(prashant.mali@cyberlawconsulting.com)
Fresh Certificate can be produced
• If the certificate under Section 65B which
was produced is rejected as not
compliance with the section
• Fresh certificate may be produced
Case Law :
Ignatius Topy Pereira Vs. Travel Corporation
(India) Pvt. Ltd. And Ors 2016 SCC Online
Bom 97 [ Hon. Justice S.B.Shukre ]
When certificate cannot be accepted ?
• P. Padmanabh v. Syndicate Bank Ltd.,
2008 (2) Kar. L.J. 153
• The Karnataka HC Held : Clear admission
of malfunctioning of either ATM machine
or computer..
• Provisions of section 65B IEA cannot be
pressed into service by plaintiff .

Whether application to call a person as
witness who has taken printout of
photographs can be allowed ?
• Application filed to call the person who had

taken the memory card from the mobile and then
transferred the audio recording it from the
memory card to laptop and then from laptop to
the audio CDs - Certificate under Section 65B
was not filed - Held oral evidence is not
admissible and application rejected.
• RAKESH JAIN V/S STATE OF HARYANA,
2016 LawSuit(P&H) 1570
Adv Prashant Mali - Cyber Law Expert (prashant.mali@cyberlawconsulting.com)
Photographs as evidence
• When photographs are taken digitally and the person
taking the photographs himself has deposed in the Court,
his statement that he got the photographs developed
himself is sufficient and satisfy the requirements of Section
65B of the Evidence Act. Section 65B of the Evidence Act
is not to be applied mechanically.
• A digital photograph which is proved constitutes electronic
evidence, which is admissible;
• Case Law : Puneet Prakash v. Suresh Kumar Singhal, 13-
07-2018 R.F.A. No. 744 of 2016 (Delhi HC)

Digital Photographs as Evidence S65B
requirement
• Puneet Prakash v. Suresh Kumar Singhal (2018),
13-07-2018 R.F.A. No. 744 of 2016
• When photographs are taken digitally and the
person taking the photographs himself has
deposed in the Court, his statement that he got
the photographs developed himself is sufficient
and satisfy the requirements of Section 65B of the
Evidence Act. Section 65B of the Evidence Act is
not to be applied mechanically.
• A digital photograph which is proved constitutes
electronic evidence, which is admissible;
Latest Case Law on Electronic Evidence
• Section 65B Certificate under Evidence Act is Compulsory for
Admission of Electronic evidence :
• Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal, 2020 SCC OnLine SC 571 , decided on14/07
• Application Can Be Made To Court When Requisite
Person Refuses To Issue Such Certificate.
• Oral evidence cannot suffice in place of a certificate under
Section 65B(4) and evidence alluded cannot be given by
a person in charge of a computer device, in place of the
requisite certificate under Section 65B(4)

Latest Case Law on Electronic Evidence
• Subhendu NathV. State of West Bengal

[MANU/WB/0500/2019; 2019(2) RCR (Criminal) 112]
• A breach in the chain of custody or improper
preservation of such evidence renders electronic
evidence vitiated unreliable in judicial proceedings.
• Necessary certification under Section 65B of IT Act is
also a prerequisite for admissibility of such evidence.
Even in case of certification, reliability of electronic
evidence depends on proper collection , preservation
and production in court and any lacuna in that regard
would render such evidence vulnerable with regard to its
probative value.
Case Law on Electronic Evidence
• Bhupesh @ Rinku S/O Vitthalrao ... vs The State

Of Maharashtra 5 June, 2018
• It was not necessary to compare the hash value of Hard
Disk with the hash value of the footages of DVD, as the
Hard Disk contained the entire files and it has different
hash value than the files of footages.
• Hard disk and DVD/CD are marked as Article and not
given exhibit numbers, can be read in evidence if it has
probative value.
• Requirement of certificate Under Section 65B(4) is not
always mandatory.
Case Law on Electronic Evidence
• Shafhi Mohammad v. The State of Himachal Pradesh
(2018) 2 SCC 801 (Over Ruled)
• The applicability of procedural requirement Under
Section 65B(4) of the Evidence Act of furnishing
certificate is to be applied only when such electronic
evidence is produced by a person who is in a
position to produce such certificate being in control
of the said device and not of the opposite party.
• Requirement of certificate Under Section 65B(4) is
not always mandatory
• 2 Judge Bench Vs v3 Judge Bench in Anvar V Basheer
Is The IT Act,2000 a Special Act
• Offence relating to sale of obscene material
– Having a nexus or connection with
electronic form of transmission covered by IT
Act which is a special law – Special law shall
prevail over general and prior laws –
• Sharat Babu Digumarti v. Govt. (NCT of Delhi)
(2017) 2 SCC 18
• Gagan Harsh Sharma v. State of Maharashtra (2018)
Bom HCC
When S66 of IT Act no application of S420 & S379 of IPC
Mobile Forensics – Case Law
• Vijesh Versus State of Kerala (2018) HCC
• In case of digital evidence stored in a computer,
mobile phone, USB drive or digital camera, the
Investigating Officer should have ensured that
there is a clear link between the hardware and
the digital evidence copied from that hardware.
• Mobile Forensics Guideline are given in this
case law
• It is high-time for the State Police to bring out a
good practice guide for digital evidence
Legal Recognition of electronic records
Section 4 of The IT Act,2000
Where any law provides that information or any
other matter shall be in writing or in the
typewritten or printed form, then, notwithstanding
anything contained in such law, such requirement
shall be deemed to have been satisfied if such
information or matter is-
•a) rendered made available in an electronic form;
and
•b) accessible so as to be usable for a subsequent
reference.
Admissibility of Electronic Records
• Section 65-B (Admissibility of Electronic Records)
–any information contained in an electronic record which is printed on a
paper, stored, recorded or copies in optical or magnetic media produced
by a computer (hereinafter referred to as the computer output) shall be
deemed to be also a document
– Conditions for admissibility
• the computer output containing the information was produced by the
computer during the period over which the computer was used regularly
to store or process information for the purposes of any activities regularly
carried on over that periodby the person having lawful control over the
use of the computer;
• during the said period, information of the kind contained in the electronic
record or of the kind from which the information so contained is derived
was regularly fed into the computer in the ordinary course of the said
activities;
• throughout the material part of the said period, the computer was
operating properly or, if not; then in respect of any period in which it
was not operating properly or was out of operation during that part of the
period, was not such as to affect the electronic record or the accuracy of
its contents;
• the information contained in the electronic record reproduces oris derived
from such information fed into the computer in the ordinary course of
the said activities.
Admissibility of Electronic Records
• Section 65-B (Admissibility of Electronic Records)
–Making statements:
In any proceedings where it is desired to give a statement in evidence
by virtue of this section, a certificate doing any of the following things,
that is to say-
(a)identifying the electronic record containing the statement and
describing the manner in which it was produced;
(b)giving such particulars of any device involved in the productionof that
electronic record as may be appropriate for the purpose of showing
that the electronic record was produced by a computer;
(c)dealing with any of the matters to which the conditions mentioned in
sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate)
shall be evidence of any matter sufficient for a matter to be stated to the
best of knowledge and belief of the person stating it.

Election Petition No. 01/2014 | Sharadendu Tiwari Vs. Ajay Arjun Singh
• In this case, there was a video shot by sub contractors of Election commission
during an election campaign which was handed over to the election commission.
After the election, one of the parties has raised an election petition in which he
has produced a copy of the CD obtained from the Election Commission as a
“Certified Copy” and produced it in the Court. Initially, it was not having Section
65B certificate and the petitioner again approached the Election Commission,
obtained another set and presented it to the Court.
• However, the Court observed that the original document in this case was
contained in the memory card (Ed: or the tape) of the Camera and this was first
transferred to a CD when it was handed over to the Election commission and then
this was again transferred by the Election Commission onto another CD and
handed over to the petitioner.
• The Court held that at each transfer point there has to be what it called a
“Contemporaneous Certificate under Section 65B”. In this case the video grapher
should have given the first certificate to EC and EC should have given the second
certificate to the petitioner. Since this was not properly done, the Court refused to
entertain the evidence.
Computer Printouts Admissible?
• State (NCT of Delhi) v. NavjotSandhu, SAR Gilani& Ors.
(AIR 2005 SUPREME COURT 3820) (Now over ruled by Anwar v Bashir)
• It is not in dispute that the information contained in the call records is
stored in huge servers which cannot be easily moved and produced in the
Court. That is what the High Court has also observed at para 276. Hence,
printouts taken from the computers/servers by mechanical process and
certified by a responsible official of the service providing Company can be
led into evidence through a witness who can identify the signatures of the
certifying officer or otherwise speak to the facts based on his personal
knowledge. Irrespective of the compliance of the requirements of Section
65B which is a provision dealing with admissibility of electronic records,
there is no bar to adducing secondary evidence under the other provisions
of the Evidence Act, namely Sections 63 and 65.
• Above all, the printouts pertaining to the call details exhibited by the
prosecution are of such regularity and continuity that it would be legitimate
to draw a presumption that the system was functional and the output was
produced by the computer in regular use, whether this fact was specifically
deposed to by the witness or not. – Position Changed
Case Law on Email as evidence
M/s. P. R. Transport Agency vs. Union of India
(AIR, 2006 ALL, 23)
Thus, the acceptance of the tender,
communicated by the respondents to the
petitioner by e-mail, will be deemed to be received
by the petitioner at Varanasi or Chandauli, which
are the only two places where the petitioner has
his place of business.
Refer Section 13(3) of The IT Act, 2000

Anvar P.V. vs. P.K. Basheer and Others,
(AIR 2015 SC 180)
The purpose of the provisions of Sections 59, 65A and 65B of
the Evidence Act, is to sanctify secondary evidence.(Para 14).
Only if the electronic record is duly produced in terms of
Section 65B of the Evidence Act, the question would arise as
to genuineness thereof and in that situation, resort can be
made to Section 45A – Opinion of Examiner of Electronic
Evidence. (Para 17).
The Evidence Act does not contemplate or permit the proof of

an electronic record by oral evidence, if requirements under
Section 65B are not complied with. (Para 18 )

Anvar V Bashir (Contd..)
• An electronic record by way of secondary evidence shall not be

admitted in evidence unless the requirements under Section 65B of
the Evidence Act are satisfied. In the case of CD, VCD, chip, etc.,
the same shall be accompanied by the certificate in terms of Section
65B of the said Act, obtained at the time of taking the documents,
without which, the secondary evidence pertaining to that electronic
record is inadmissible. ( Para 22 )
• The Section 63 and Section 65 of the Evidence Act have no
application to the secondary evidence of the electronic evidence and
same shall be wholly governed by the Section 65A and 65B of the
Evidence Act.
• The Bench of the Supreme Court overruled the judgment laid down
in the State (NCT of Delhi) v. Navjot Sandhu alias Afsal
Guru[(2005) 11 SCC 600 by the two judge Bench of the Supreme
Court.
Equivalent US Case Law
• Lorraine v. Markel American Insurance
Company 241 FRD 534 (D. Md. 2007)
It was held when electronically stored information is offered as
evidence, the following tests need to be affirmed for it to be
admissible:
(i) is the information relevant; (ii) is it authentic;
(iii) is it hearsay; (iv) is it original or, if it is a
duplicate, is there admissible secondary
evidence to support it; and (v) does its
probative value survive the test of unfair
prejudice?
Email Printout as a Evidence
• The Hon’ble High Court of Calcutta while deciding
the admissibility of email held that an email
downloaded and printed from the email account of
the person can be proved by virtue of Section 65B
r/w Section 88A of Evidence Act. The testimony of
the witness to carry out such procedure to
download and print the same is sufficient to prove
the electronic communication.
• Abdul Rahaman Kunji Vs. The State of West
Bengal [MANU/WB/0828/2014]

Presumption of Email S 88(A) IEA
• The Court may presume that an electronic
message, forwarded by the originator through an
electronic mail server to the addressee to whom
the message purports to be addressed
corresponds with the message as fed into his
computer for transmission;
• but the Court shall not make any presumption as
to the person by whom such message was sent.

Paper printouts of electronic record
• Hon'ble S.C. in Tomso Bruno and anr. V. State
of U.P. on Dt. 20/01/2015
Held that the computer generated electronic records
in evidence are admissible at a trial if proved in the
manner specified by section 65 B of the Evidence
Act. Sub-section (1) of section 65 B makes
admissible as a document, paper print out of
electronic records stored in optical or magnetic
media produced by a computer, subject to the
fulfillment of the conditions specified in sub-section
(2) of section 65-B. Adv Prashant Mali - Cyber Law Expert
(prashant.mali@cyberlawconsultiung.com)
Cell Phone is a Computer
• Syed Asifuddin & Ors. Vs State of A.P
[2005 CriLJ 4314]
• A Cell Phone is a computer as envisaged
under the IT Act, 2000

IP Address as an Evidence
• IP address alone I feel cannot be a conclusive evidence
and I have proved in many cases in lower courts .
• Judge Gary Brown in the United States District Court of
the Eastern District of New York adjudged below :
• "The assumption that the person who pays for Internet access at a
given location is the same individual who allegedly downloaded a
single sexually explicit film is tenuous, and one that has grown more
so over time," he writes. "An IP address provides only the location at
which one of any number of computer devices may be deployed,
much like a telephone number can be used for any number of
telephones."
• "Thus, it is no more likely that the subscriber to an IP address
carried out a particular computer function – here the purported illegal
downloading of a single pornographic film – than to say an individual
who pays the telephone bill made a specific telephone call," .

CDR(Call Data Records) as an Evidence
• Today Investigation agencies gets paralyzed when a
accused doesn’t use Mobile phone.as the investigation
starts majorly around CDR.
• Call Data Records do aid in preliminary investigation but
cannot be taken as conclusive evidence because of
following problems
1. The mobile handset or SIM could be on someone else
name, as written in receipt/invoice.
2. Call Data Records are not certified
3. SIM card was cloned or IMEI number Spoofed(changed)
4. Mobile Number snooping had taken place using S/W
In Bombay Bomb Blast case Sanjay Dutt CDR were admitted
and the same were in Parliament Attack case
CD / DVD as Evidence
In view of the definition of ‘document’ in Evidence Act,
we hold that the compact disc is also a document. It is
not necessary for the court to obtain admission or denial
on a document under sub-section (1) to Section 294
CrPC personally from the accused or complainant or the
witness. The endorsement of admission or denial made
by the counsel for defence, on the document filed by the
prosecution or on the application/report with which same
is filed, is sufficient compliance of Section 294 CrPC.
CRIMINAL APPEAL NO. 1525 OF 2015
Shamsher Singh Verma Versus State of Haryana
Adv Prashant Mali - Cyber Law Expert
Case Law for CD & CDR as Evidence
• In the recent judgment by Hon. High Court of

Delhi, while dealing with the admissibility of
intercepted telephone call in a CD and CDR which
were without a certificate under S65B Evidence
Act, the court observed that the secondary
electronic evidence without certificate under S65B
Evidence Act is inadmissible & cannot be looked
into by the court for any purpose whatsoever.
• Jagdeo Singh V the State & Ors. [MANU/DE/0376/2015]

Original needs to be preserved?
•Civil court may pass an Order under Order 11

Rule 12 CPC to rely on the Evidence
purported along with certificate under S65(B)
if application for discovery is made – Original
not needed as it increases complexity

Case Law: Admissibility of transcription
of a recorded conversation
While considering the admissibility of transcription of
recorded conversation in a case where the recording
has been translated and the same has been verified
by the panch witnesses., the SC held that as the
voice recorder had itself not subjected to analysis,
there is no point in placing reliance on the translated
version. Without source, there is no authenticity for
the translation. Source and authenticity are the 2 key
factors for electronic evidence.
•Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao phalke & anr
CRIMINAL APPEAL NO. 97 OF 2015

Case Law on SMS,MMS as Evidence
In State of Delhi v. Mohd. Afzal & ors,
It was held that electronic records are admissible as
evidence. If someone challenges the accuracy of a
computer evidence or electronic record on the grounds
of misuse of system or operating failure or
interpolation, then the person challenging it must prove
the same beyond reasonable doubt. The court
observed that mere theoretical and general
apprehensions cannot make clear evidence defective
and in admissible. This case has well demonstrated
the admissibility of electronic evidence in various
forms in Indian courts.

CCTV Evidence & Statement
• Rajesh Dhannalal Daware Vs. State of Maharashtra {Bombay
High Court, 5 May 2016}
• Evidence Act, 1872 - Section 65-B - Footage of CCTV Camera -
Under S. 65B(4) if it is desired to give a statement in any
proceedings pertaining to an electronic record, it is permissible
provided the following conditions are satisfied: (a) There must be a
certificate which identifies the electronic record containing the
statement; (b) The certificate must describe the manner in which the
electronic record was produced; (c) The certificate must furnish the
particulars of the device involved in the production of that record; (d)
The certificate must deal with the applicable conditions mentioned
under Section 65B(2) of the Evidence Act; and (e) The certificate
must be signed by a person occupying a responsible official position
in relation to the operation of the relevant device.

Hard Disk is a Document
Dharambir vs CBI 148 (2008) DLT 289
• Certain data (i.e. call records) were copied from Hard Disk
to a CD.
• Cyber Forensics Lab in Hyderabad confirmed that the
recorded data (i.e. call conversation) on CD were true
copies of the originals and that the Hard Disk was in
working condition.
• A question came: difference between “electronic device”
and “electronic record”.. It was held that if the electronic
device has ever recorded any data which is relevant for a
case, such “electronic device” shall be treated as
“electronic record” for the purpose of evidence.
• Scope of definition of the word “data” was contended and
was held that “data” would include active memory as well
as subcutaneous memory
Distinction between
hacker and cracker
• Abhinav vs. State of Haryana, Cr. Misc. No. 9245-M-
2008 the subtle difference between a hacker and cracker:
A hacker is a computer expert whose intrinsic curiosity persuades him to break in
computers. Hacking is computer trespass. To make hacking an offence
depends on mens rea. Based on the intention, hackers are divided into two
groups: (1) hackers who have no intent to do any criminal activity. These
hackers do not consider breaking into computer system a crime. They consider
themselves members of an elite meritocracy based on ability and trade hacker
techniques. They are skilled computer users, who penetrate computer system
with a sole purpose to gain knowledge about computer system and their actual
working. (2) crackers who intend to engage in criminal activity. This dichotomy
of hacker and cracker has come on the scene in 1985 to distinguish between
“benign” hackers from hackers who have malicious intention. Crackers
maliciously sabotage computers, steal information located on secure
computers and cause disruption to the networks for personal or political
motives.
Evidence –Bankers’ Books Evidence Act, 1891
• What is permissible as evidence?A “certified copy”of any

entry in a banker's book shall in all legal proceedings be
received as prima facie evidence of the original entry itself.
{Section 4}
• What are banker’s book in electronic form?Any record
stored in a micro film, magnetic tape or in any other form of
mechanical or electronic data retrieval mechanism, either onsite
or at any offsite location including a back-up or disaster
recovery site of both. {Section 2(3)}
• How a certified copy of electronic record be
obtained?{Section 2(8)}
–A copy obtained through mechanical process can be certified
if a certificate of the principal accountant or the manager of the
bank.
–A printout containing a certificate in accordance with Section
2A.
Evidence –Bankers’ Books Evidence Act, 1891
• Nature of certificate for a copy obtained through mechanical

process:
A certificate from principal accountant or manager of the branch that the
mechanical or other process adopted to obtain the copy has ensured the
accuracy of the copy.
• Nature of certificate for a copy obtained through mechanical
process: Section 2A
Authenticity certificate from principal accountant or branch manager, AND
Certificate from person in-charge of computer system regarding
•Details of computer system
•Process of data storage
•Safeguard to protect computer system and data
• A further certificate from the person in-charge of the computer system to
the effect that to the best of his knowledge and behalf, such computer
system operated properly at the material time, he was provided with all
the relevant data and the printout in question represents correctly, or is
appropriately derived from, the relevant data.

Bank Statement as Evidence When accepted
State Bank of India vs. Rizvi Exports Ltd (DRT, Allahabad)
• State Bank of India (SBI) had filed a case to recover

money from some persons who had taken various loans
from it.
• As part of the evidence, SBI submitted printouts of
statement of accounts maintained in SBI’s computer
systems.
• The relevant certificates as mandated by the Bankers
Books of Evidence Act (as amended by Information
Technology Act) had not been attached to these printouts.
• The Court held that these documents were not admissible
as evidence.

Appreciation of evidence: Sec 3
• Ganesh K. Gulve Vs State of Maharashtra AIR
2002 SC 3068
“In order to appreciate the evidence, the Court
is required to bear in mind the set
up and environment in which the crime is committed.
The level of understanding of the witnesses. The
over jealousness of some of near relations to
ensure that, everyone even remotely connected with
the crime be also convicted. Everyone's different
way of narration of same facts. Etc.”

What is Appreciation of evidence?
• Kajal Sen Vs State of Assam AIR 2002 SC617
• “The process by which a judge concludes
whether or not a fact is proved is called
appreciation of evidence. It is a duty of the
court to appreciate evidence minutely,
carefully, and to analyse it.”
• How to appreciate evidence in a criminal case is
explained in Sardul Singh vs. State of Haryana, AIR
2002 SC 3462).

Standard of Proof: Electronic Evidence
• Tukaram S. Dighole Vs Manikrao Shivaji

Kokate (2010) 4 SCC 329
• “Standard of proof” in the form of
electronic evidence should be
“more accurate and stringent”
compared to other documentary
evidence
Appreciating IMEI Number
• Gajraj v. State (NCT of Delhi), (2011) 10 SCC 675
• SC noted the “irrefutable fact” that the IMEI number of
a handset is exclusive in nature and no two handsets
have the same IMEI number. Every time a mobile
handset is used for making a call, besides recording
the number of the caller as well as the person called,
IMEI number of the handset is also recorded by the
service provider. Therefore, this piece of evidence,
establishing the link between the accused and the
deceased, was held by the
Supreme Court to be of ‘conclusive nature’

Appreciating Compact Disk as Evidence
• K.K Velusamy Vs N.Palanisamy 2011 (11) SCC 575
• The Supreme Court held that it is similar to a
photograph and can be received in evidence
under Section 8 of the Evidence Act, 1872. The
tests indicated in R.M Malkani vs. State of
Maharashtra (AIR 1973 SC 157) for proving
authenticity of recording, in addition to the
requirements of Section 65-B would apply.
• Shamsher Singh Verma v State of Haryana
MANU/SC/1345/2015 : 2015 (12) Scale 597,
• SC held compact disc is also a document under s.294(1)
CrPC and is admissible as a evidence.
Evidence must conform to
ordinary human conduct
• Chaturbhuj Pande v. Collector, (AIR 1969 SC
255)
• “The Judges are not computers. In assessing the
value to be attached to oral evidence, they are
bound to call into aid their experience of life,”
• SIL Import, USA v. Exim Aides Silk Importers
(1999) 4 SCC 567
• Supreme Court observed the need of the judiciary
to interpret a statute by making allowances for any
relevant technological change that has occurred.
Challenges
• What would happen when secondary
electronic evidence seized from the
accused wherein, the certificate under
Section 65B of Evidence Act cannot be
taken and the accused cannot be made
witness against himself as it would be
violative of the Article 20(3) of the
Constitution of India. {Self Incrimination}

Challenges
• Evidence from WhatsApp
• Evidence from websites abroad or
websites with no contact details for LEA to
connect with.
• Only Five examiner of Electronic Evidence
appointed under Section 45A of the IEA

Challenges
• Section 32,36,74,75 & 91 of IEA not
amended
• Section 91 incorporates important legal
principle, that if the terms of a contract are
reduced in a document , oral evidence
cannot be led with respect to the terms of
such contract etc.
• Will apply to written Doc and not to
Electronic Contract or Electronic Record ?
THANKYOU
Adv. (Dr.) Prashant Mali MSc.(Computer Science), LLM, Ph.D

President - Cyber Law Consulting, Author, Speaker & Expert
Legal Counsel, Bombay High Court
Mob: +91-9821763157 | 022-26581818
Web : www.prashantmali.com
www.cyberlawconsulting.com
Email: cyberlawconsulting@gmail.com
facebook.com/cyberlawconsultant
Twitter : @AdvPrashantMali

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