Innovation in information technology and digitization is one of human’s greatest achievements. In today’s digital age, governments in many countries have embraced digitization in their jurisdictions. With the rapid growth of e-governance across civic and remote areas and electronic commerce activities, e-evidence has been involved as fundamental support of communication, processing, and certification. Evidence is a substantiation of a statement made in court in a manner that indisputably establishes that this is a fact. It may be presented through witnesses, physical objects, or electronic records that provide a reliable indication of the relationship between the offense and the probable offender. The law of evidence has changed histrionically over the past few years, and various kinds of evidence are now deemed admissible before the courts. This modification also came in India with numerous changes to the prevailing law. The development of information technology has given rise to cyberspace where the internet offers the ability for all citizens to access all material, data storage, analytics, etc. through the usage of high technology. This growing dependence on automated media, e-business and digital storage of information has created the need to transform the information technology regulations and the rules for the eligibility of electronic evidence in civil and penal proceedings in India.
The notion of “electronic evidence” was acquainted through the “Information Technology Act, 2000” and correlated alterations to the “Evidence Act, 1872” and the “Indian Criminal Code, 1860”.UnderSection 2(1)(t) of the IT Act, 2000, “electronic record” means “information, records or data produced, images or sounds stored, received or transmitted electronically or in the form of computer-generated microfilm”. The Information Technology Act, of 2000, explicitly recognizes the validity and use of electronic documents rather than regular paper documents. The Indian administration currently launched the “Digital India” campaign to encourage the practice of digitization in our regular life, which would help expedite the growth of our country. Electronics have created tremendous value in the lives of human beings. Electronic documentation was assessed and accepted by the Indian justice system whether it fulfilled the requirements of the Indian Evidence Act, 1872.
ADMISSIBILITY OF ELECTRONIC RECORDS
The Indian Evidence Act was modified according to section 92 of the Information Technology Act and the term “evidence” has been modified to embrace “electronic records“, thereby allowing digital evidence to be admissible before the court. Following section 3 of the Indian Evidence Act, 1872, “evidence”, defines and includes oral evidence or documentary evidence. “Oral evidence” may be declared as all statements that the court allows witnesses to make on any question of fact which is the subject of an investigation. whereas “documentary evidence” can be stated as all documentation, including electronic records, presented to the court for its examination.
Before the statutory acknowledgement of electronic evidence, sections 63 and 65 of the Evidence Act largely dealt with and anticipated the requirements for the permissibility of e-evidence. Following these requirements, electronic evidence gathered through various means through the enforcement of cybercrime has been deemed to be a “record”, and hard copies were considered subordinate evidence which requires genuineness to be certified by an appropriate signatory who was likely to be cross-examined in respect of the certified record.
Nevertheless, the lacuna of the expression “electronic records” following the intention of sections 61 to 65 of the Evidence Act and the prohibition of electronic records under section 59 of the Evidence Act makes it indistinct and unambiguous judicial intent not to expand the application of section 59 of the Act and section 61-65 of the electronic evidence act because of the preponderance of section 65B of the Evidence Act that pertains only to the admissibility of those electronic documents.
LEGAL FRAMEWORK FOR ELECTRONIC EVIDENCE
The contents of electronic documents are set out in section 65A of the Evidence Act which shall be supported by evidence underSection 65B. Both sections 65A and 65B of the Indian Evidence Act have been incorporated into the Indian Evidence (Amendment) Act, 2000, referred to in Chapter V of the Evidence Act., which addresses documented evidence. Under the Evidence Act, 1872, section 65B provides a distinct framework for the eligibility of e-evidence. The onus is on the presenting party to show that the secondary evidence is admissible. The ambit of Section 65B has been the subject of multiple litigations, and the Apex Court has adopted conflicting views.
In the case of Anvar v. Basheer, the Supreme Court of India has argued that secondary data on the CD or DVD, or pen drive is only eligible on a certificate issued under subsection 65B(4)of the Indian Evidence Act. Oral evidence is not sufficient to prove electronic evidence, the section 65B certificate is crucial in proving this. In addition, an expert opinion according to section 45A of the Indian Evidence Act is not an escape route to circumvent the way under section 65B.
Therefore, in the latest case of Arjun Pandit Rao v. Kailash Kushanrao (2020), the Court of law ruled that compliance with section 65(B) of the Indian Evidence Act is essential for an automated document to be produced as evidence. The credential submitted according to that provision shall constitute a description of such electronic records and identity, including the authorized signature of an individual with formal managerial responsibility and the functioning of the device concerned. A three-judge bench of the Supreme Court on July 2020, has now clarified how section 65B is interpreted in the case of Arjun PanditraoKhotkar v. Kailash KishanraoGoratyal. There was confusion regarding the scope of section 65B, as conflicting views had been found in three previous Supreme Court decisions i.e., in the cases of Anvar P.V. v. P.K. Basheer, Shahfi Mohammad v. State of Himachal Pradesh, and Tomaso Bruno v. State of Uttar Pradesh.
As we all know that evidence plays a significant role in the case and the trial. It can demonstrate a defendant’s guilt or innocence. In court proceedings, the proof is admissible only if it is relevant to the facts, issues, or conflicts in question. It would be a waste of the court’s time if the evidence were admissible but not relevant to the event. For evidence to be used in the courtroom, it must be pertinent and meet all established eligibility requirements. In today’s environment, even electronic or digital documents are eligible for evidence on the condition that they are reliable, relevant, and received by a lawful source of electronic communication.
Therefore, the acceptance and benefits from electronic evidence may be difficult to achieve and it is up to the courts to decide whether the suggestion meets the three lawful standards of validity, consistency, and truthfulness or not. Following the decision of the SC in the case of Anvar which recognized rules for accepting electronic evidence, Indian courts must take a consistent approach to prevent miscarriages of justice. and undertake all essential protective measures while accepting and assessing electronic evidence. With the practical difficulties, the recent leakage of e-evidence (via Whatsapp chats) also stresses the need to design safeguards for the preservation and preservation of electronic documents. In a recent ordinance, the High Court of Punjab & Haryana referenced Arjun v. Kailash case to conclude that Whatsapp chats will have no probative value until a certificate is issued.
Due to its intangible nature, digital evidence can be encoded and encrypted and, therefore, must be decoded before the court can accept or reject it. Since electronic documents are sensitive, they can be modified very easily and any modification that takes place can render them ineligible or inadmissible. Secondary electronic evidence can only be relied on when a credential is produced and the electronic record is submitted as evidence, on the other hand, for principal evidence on the electronic file, there is no requirement to produce such a certificate. Therefore, to conclude, the sensitivity of these pieces of evidence places them under strict observation on the part of the tribunal to ensure their originality. The courts have repeatedly stated that evidence obtained through new techniques and devices cannot be denied as evidence, as long as it can be proven to be original.
Author(s) Name: Mushkan Mangla (Indian Institute of Legal Studies)
The Information Technology Act, Section [2(1)(t)] (2000).
 The Information Technology Act, Section 4 (2000).
 The Indian Evidence Act, Section 3 (1872).
 The Evidence Act, Section 65B (1872).
 (2014) 10 SCC 473.
Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473.
Shahfi Mohammad v. State of Himachal Pradesh(2018)2 SCC 801.
 Tomaso Bruno v. State of Uttar Pradesh(2015) 7 SCC 178.
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
Arjun v. Kailash,(2020) 7 SCC 1.
 The Indian Evidence Act, Section [65B (4)] (1872).