Photographs and Videos: Admissibility, and Proof Invoking Presumptions and ‘Silent Witness’ Theory

Saji Koduvath, Advocate, Kottayam.

Abstract

  • 1. Once a photograph or a copy of a video is duly admitted in evidence—having been produced along with the certificate required under Section 63(4) of the Bharathiya Sakshya Adhiniyam (BSA)—
  • the court can rely upon it as a piece of evidence,
    • (i) based on the ‘general (and reliable) evidence’ (such as the identity of the persons seen in the photograph/video, the place, time, etc.)
    • (ii) as substantive evidence,
    • (iii) invoking the discretionary presumption under Section 119, BSA,
    • (iv) without insisting on any further independent proof.
  • 2. The presumption under Section 119, BSA, is rebuttable.

Key Points at a Glance

  • The only statutorily recognised mode of proof of a Computer Output (copy) is the production of a certificate under Section 63(4) of the BSA .
  • This certificate is accepted unless its correctness is specifically challenged.
  • A photograph or a copy of video stands on a distinct footing (in contradistinction to a statement-of-account) by reason of the statutory presumptions that the court can invoke.
  • The court is entitled to infer that a photograph or video correctly represents the scene or object as it existed at the time of recording, under the ‘silent witness’ theory – the document “speaks for itself”.
  • A photograph or a video, by its very nature, speaks for itself. Upon its due admission in evidence, the court can rely upon it, on the basis of ‘general (and reliable) evidence’, such as the identity of the persons seen in the photograph/video, the place, the time, or the occasion in which the photo or video was taken, without insisting upon further formal or technical proof.
  • The person who refutes the correctness of the photograph or video has the duty to adduce proper and admissible evidence, to discredit the presumption as to its correctness (This presumption under Section 119, BSA is ‘rebuttable’ for the word “may” in that Section).

Presumptions on Photographs and Videos: Discretionary and Rebuttable

Section 119 of the Bharatiya Sakshya Adhiniyam (Section 114 of the Evidence Act) allows the Court to

  • ‘presume the existence of any fact ….. regard being had to the common course of natural events‘.

A photograph or a video, by its very nature, speaks for itself. They are “silent witnesses”. It may be the most effective evidence in the peculiar nature of a case. (For example, the photograph that represents the scene of an accident.) It is on the supposition – photographs do not lie (Rajesh Khaitan v. State of WB, 1983 CrLJ 877; Anurag Sharma v. Manushi Sharma, 2017 AIR(CC) 332; 2016-234 DLT 530).

Invoking the legal presumptions under Section 119 of the BSA, a court can begin with an assumption as to the correctness of a photograph or video, casting the onus on the opposite party to rebut that presumption by placing on record material sufficient to dislodge or shift it. The presumption under Section 119 is discretionary and rebuttable. Consequently, the law does not oblige the proponent of the photograph or video to negate every theoretical possibility of manipulation.

However, it must have been fairly and accurately depicted. Where the rebuttal evidence creates a reasonable doubt regarding the authenticity or integrity of the photograph or video—whether on the ground of tampering, manipulation, fabrication, or otherwise—or where the court considers that further clarification is necessary to assess its probative value, the court may insist on further proof.

  • Note: The court has jurisdiction to require the party concerned to prove even documents admitted (by the opposite side). Besides Section 53, BSA (facts admitted need not be proved: S. 58, IEA) and the powers of the court under Section 168, BSA (S. 165, IEA), the scheme of the Procedural Acts (CPC and BNSS/CrPC) also shows it. See – 
    • Order VIII Rule 5, CPC
    • Order XII, Rule 2A(1) [Proviso], CPC and 
    • S. 330, BNSS (S. 294 of the CrPC).

Invoking the general presumption (Section 119 of the BSA), as regards the video properly admitted in evidence, the courts in India have consistently held –

  • ‘A mere bald denial of the contents of a video recording is insufficient‘; but, ‘there should be material to show that the video clippings are doctored or morphed’ [State Represented by the Inspector of Police, Chennai v. V. P.  Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129.]
    • See also: Jagjit Singh v. State of Haryana, (2006) 11 SCC 1 [The court proceeded, observing – ‘there is no room for doubting the authenticity and accuracy of the electronic evidence‘].

Photographs – In many cases, a Corroborative Piece; It Can be the Best Evidence also

A photograph, being a document, ordinarily requires proof through a proper witness to establish its authenticity and relevance. However, it need not invariably be proved by examining the photographer, and may be proved through any competent witness capable of speaking to the facts depicted or the circumstances of its production. Once duly admitted, a photograph may constitute primary or substantive evidence, though in many cases it is used to corroborate other evidence.

In Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178, it is held that CCTV footage can be a ‘Best Evidence‘. The court said it as under:

  • “Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence– CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.”

In short, a photograph or copy of a video, once duly admitted in evidence, may constitute substantive and even the best evidence. The court can rely upon it by invoking the statutory presumptions, without insisting on further independent proof.

International Criminal Proceedings: No strict Requirement – Photographs be Corroborated

According to Rule 63(4) of the  of the ‘International Criminal Proceedings (ICC) Rules of Procedure and Evidence’, it is pointed out in Prosecutor v Lubanga, ICC-01/04-01/06-2842,14 March 2012, TC I-718, that there is no strict legal requirement that a photograph has to be corroborated by other evidence for the Court to be able to rely on it and establish a specific fact [See: End Notes ].

The probative value of a document is a matter for the Court

Though in many cases a photograph or video is relied upon only as a corroborative piece of evidence, it can be substantive and independent evidence. It may also be a ‘best evidence‘, as shown above.

It is also important – the determination of the probative value of a document is a matter for the court. In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:

  • “Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

Silent Witnesses Theory – Photograph /Video ‘Speaks for Itself‘

In State Represented by the Inspector of Police, Chennai v. V. P.  Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, the Madras High Court explained the “silent witness” theory, stating as under:

  • “115. We may also incidentally notice the developments in the law on video and photographic evidence in the West where the “silent witness” theory is deployed to admit video and photographic evidence. The theory proceeds on the footing that photographic and video evidence are “silent witnesses” which speak for themselves. They are substantive evidence of what they portray.”

The following two foreign decisions were specifically dealt with by the High Court:

  • (a) State of Nevada v. Archanian, [145 P 3d 1008 (2006)]: The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held as under:
    • “There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”
  • (b) Her Majesty v. Jaiyhi He [2017 ONCJ 790]: The Ontario Court of Justice in Canada opined to the following effect:
    • The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility: (i) The video is relevant, showing the crime scene or other evidence linked to the issues at trial; and (ii) the video is authentic — that it accurately represents the events depicted.
  • Her Majesty v. Jaiyhi He [2017 ONCJ 790] referred R. v. Bulldog (2015 ABCA 251, Alberta (Western Canada) Court of Appeal).

Should there be Proof – Video not been Altered or Changed?

The appellants in R. v. Bulldog (2015 ABCA 251, Alberta (Western Canada) Court of Appeal) challenged the authenticity and admissibility of the DVD. They relied on R. v. Nikolovski, [1996] 3 S.C.R. 1197.    The Court considered whether the Crown was bound to prove that the video recording had not been altered or changed. The appellants argued that R. v. Nikolovski mandated a two-fold test (i) requiring proof that the video accurately depicted the facts and (ii) proof that it had not been altered or changed. The Alberta Court of Appeal disagreed. It held (paragraphs 26 to 33):

  • 1. As long as other evidence satisfied the accuracy, no evidence regarding the presence or absence of alteration was necessary.
  • 2. The mere fact of alteration did not automatically render a video recording inadmissible.
  • 3. The Crown’s failure to establish that the DVD was not altered was not fatal as long as the Crown had proven that the DVD was a substantially accurate and fair representation of what it purported to show.
  • See: End Notes

Bald Denials are Insufficient to Discredit the Authenticity of Video Footage

The Madras High Court, in this decision (State Represented by the Inspector of Police, Chennai v. V. P.  Pandi), also observed as under:

  • “113. It is true that the cameraman can zoom or minimize an image. It is also true that trick photography is possible. In Suo Motu taken up (PIL) WP Chief Secretary to the Government of Tamil Nadu v. The Government of Tamil Nadu and others (WP 3335 etc. of 2009) decided on 29.10.2009, a Division Bench of this Court (F.M. Ibrahim Kalifulla and R. Banumathi, JJ) held that bald denials are insufficient to discredit the authenticity of video footage. In her lead judgment, Banumathi, J (as she then was) has opined as under:
    • ‘349. That a bald denial of the contents of a videotape is not adequate to doubt its authenticity; there should be material to show that the video clippings are doctored or morphed.‘
  • The Division Bench proceeded to look into the video tape as a corroborative piece of evidence and held as under:
    • ‘350. The respondents have not disputed that the video clippings filed by the petitioners relate to the occurrence. Even though video clippings filed by the petitioners do not have the running time, we have watched the videos and looked into the photos as corroborative piece of evidence’.”

In Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, the conclusion of the Speaker on CDs received from TV News Channels, that ‘there is no room for doubting the authenticity and accuracy of the electronic evidence produced by the petitioner’, was accepted by the Apex Court, holding as under:

  • “The petitioners despite grant of opportunity had declined to watch the recorded interview. It is one thing to watch the interview, point out in what manner the recording was not genuine but instead of availing of that opportunity, the petitioners preferred to adopt the course of vague denial.”

In Umesh v. State of Karnataka, 2023-2 KarLJ 397, while dealing with a ‘trap case’, after laying down the importance of digital evidence, it is cautioned as under:

  • “Qualified and trained expert should test the samples. The report should contain the procedure adopted for testing the samples. The equipments used should be duly calibrated and updated periodically. The electronic device should be tested for editing and tampering in order to establish its genuineness and authenticity.
  • Digital evidence form be created for every memory card/chip used in the trap case containing the unique identification features of the memory chip/card used. The defence should be provided with a cloned copy or a mirror image of the electronic device.”

Distinct Evidentiary Position of a Section 63(4) Certificate

Once the Section 63(4) certificate accompanies the computer output (copy), the computer output becomes admissible in evidence, and it is not mandatory to examine the CCTV operator, or the person who snapped the photograph, for the purpose of its admission.

  • See: Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473,
  • Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

The Person who Signed Section 63/65B Certificate Need Not be Examined: Having regard to the special features of the photographs and videos (that is, visual depictions of facts), even if the Section 63(4) certificate is not that given either by the plaintiff or by the defendant, but by another, the photograph or video can be marked in evidence through the plaintiff or the defendant.

Unless the authenticity or correctness of the certificate issued under Section 63(4) is specifically disputed, oral evidence has no role to play in proving (for the purpose of marking) that the computer output is the exact copy of the (original) electronic record. Therefore, the photographer who issued the certificate under Section 63(4) need not be examined if the correctness of the certificate is not specifically disputed.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, our Apex Court further affirmed as under:

  • “50. … However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons.”

Definition of Document Includes Photographs and Videos

Section 2(1)(d) of the Bharat Sakshya Adhiniyam, 2023 (BSA), defines ‘document’ as under:

  • “ (d) ‘document’ means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.”

By virtue of Section 63 of the BSA, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (computer output) shall be ‘deemed to be also a document’.

Section 3(18), General Clauses Act, 1897, defines document as under:

  • “Document shall include any matter written, expressed, or described upon any substances by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used for the purpose of recording that matter.”

Section 2(8) of the Bharatiya Nyaya Sanhita, 2023, defines ‘document’ as any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, and includes electronic and digital record, intended to be used, or which may be used, as evidence of that matter.

Going by the definitions, ‘document‘ includes not only all materials or substances upon which thoughts of a man are represented by writing or any other species of conventional mark or symbol, but also records of information of some sort (Santhosh Madhavan @ Swami Amritha Chaithanya v. State, 2014 KerHC 31).

Electronic Record is Documentary Evidence

It is well established — under Section 3 of the Evidence Act (Sec. 2(1)(d) of the BSA), the electronic record produced for the inspection of the Court is documentary evidence (Anwar PV v. PK Basheer, 2014-10 SCC 473).

In P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1, it is observed that the following were “documents” under Section 3 of the Evidence Act-

  • (i) tape records of speeches (See also: Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17 ) and
  • (ii) audio/video cassettes (See: Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, 1976-2 SCC 17) including compact disc (See also: Singh Verma v. State of Haryana, 2016-15 SCC 485).

Presumption on Computer Output (copy) Admitted under Sec. 63

A computer output (copy) of a CCTV footage or video, or of a photograph captured on a mobile phone, can be admitted in evidence in place of the original — if it is produced with a certificate under Section 63(4) of the BSA.

  • Note: Section 63(1), BSA says about admissibility of copy — “Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

Proof by Certificate under Section 63(4)

In view of the non-obstante clause (“Notwithstanding anything contained in this Adhiniyam”) in Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, the only Mode of Proof of a computer output (copy) is the evidence through a certificate under Section 63(4).

  • Therefore, even in cases where formal proof of the digital photos or videos is dispensed with (for the opposite party admits it), a certificate under Section 63(4) of the BSA is necessary.

Admission and Proof of Computer Output (copy): Independent Matters

(i) Admitting a copy of a computer output (such as copy of a statement of accounts) in evidence (with a certificate under Section 63), and (ii) the formal proof thereof at the time of trial, are two distinct and independent matters.

The burden of Impeaching the Certificate is upon the Party who Disputes it

The presumption arising under Section 63—by which a computer output is deemed to be a document—is rebuttable and does not render the contents of the electronic record conclusive.

If such a challenge on the certificate is overruled by the court, it can draw a presumption as to the genuineness and authenticity of the photographs or videos contained in the computer output (copies).

S. 63 deals with Admissibility of computer output or copy, and not Proof

The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.

  • However, the court can draw presumptions as to the genuineness and authenticity of such photographs or videos, as stated earlier.

Once Copy Admitted by S. 63 Certificate, Oral Evidence has No Place in Marking

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, is an authority on the following matters –

  • (i) The certificate under Section 65B(4) is a condition precedent to admissibility of the computer output (copy);
  • (ii) The certificate is meant to replace the oral evidence of the device-handler or operator.
  • (iii) Once the certificate is produced, oral evidence has no place (for the purpose of marking it).

However, the person who issued the certificate (operator) has to be examined if:

  • the authenticity or correctness of the certificate is specifically disputed;
  • allegations of fabrication, manipulation, or false certification are raised;
  • the issuer’s control over the device/system is seriously questioned; or
  • the court needs clarification to assess probative value, not admissibility.

Pictorial Testimony Theory and Silent Witness Theory

  • Pictorial Testimony Theory — Photograph Need Not Be Proved.
  • Silent Witness Theory — Photograph Must Be Proved.

Pictorial testimony theory

  • It is applied when a photograph is used merely as an aid to a witness in explaining or illustrating his testimony—for example,
    • a doctor explaining injuries with reference to a photographs,
    • witness identifying a scene/person with a photograph,
    • identification of a deceased through a photograph,  
    • accident site photos to explain the incident by a witness.
  • In these cases, the primary evidence is the oral testimony of the witness and not the contents of the photograph itself. The photograph is admitted merely as an aid to enable the witness to explain or illustrate what he personally perceived (and the photograph itself is not relied upon as substantive evidence). Consequently, it is not necessary to examine the photographer, provided the witness could affirm that the photograph fairly and accurately represents what he saw. In such cases, the photograph does not constitute substantive evidence, and therefore, no certificate under Section 63(4) of the BSA (Section 65B of the IEA) is required.

Silent witness theory or Communication theory

  • It is invoked when the photograph itself constitutes substantive and probative evidence of what it depicts, speaking for itself without supporting oral testimony—for instance,
    • an X-ray film showing a fracture,
    • a photograph depicting the accused in a crowd holding a weapon (though the photographer did not notice him),
    • a photograph of the scene of occurrence of a crime.
    • CCTV footage.
    • speed camera photographs.
  • In these cases, the reliability and authenticity of the photographs or video must be proved, for the court relies upon what is depicted by the camera, CCTV, etc., in the mechanical/ electronic process, and not what the human witness who operated the process perceived.

In Santhosh Madhavan @ Swami Amritha Chaithanya v. State (2014 Ker HC 31), these two theories, governing the proof and authenticity of photographs, were explained.

Examination of the Photographer may not be insisted (In silent witness theory)

As stated above, in silent witness theory cases, photographs or videos are required to be proved. However, such proof need not necessarily be by way of formal proof through the examination of the photographer or the person who captured the image.

Court to Draw a Prima Facie Presumption of Correctness

The law does not proceed on any presumption that electronic or visual evidence is to be viewed with constant suspicion.

The party producing a photograph or video is required only to establish foundational facts sufficient for its admissibility and relevance. Once this burden is discharged and the document is duly admitted, the Court can draw a prima facie presumption of correctness under Section 119 of the BSA (Section 114 of the IEA).

If S. 63/65B Requirement is fulfilled, CD is admissible, Like a Bocument

In Kailas v. The State of Maharashtra: 2025 INSC 1117, our Apex Court held as under:

  • “19. … However, strangely, the High Court opined that the video would become relevant only if it is played during deposition of each witness so that the witness could explain its contents in his own words resulting in a transcript of the video. In our view, this is a strange and unacceptable reasoning for the simple reason that the CD is an electronic record and once the requirement of Section 65B is fulfilled it becomes an admissible piece of evidence, like a document, and the video recorded therein is akin to contents of a document which can be seen and heard to enable the Court to draw appropriate inference(s). No doubt, there may be an occasion where to appreciate contents of a video an explanatory statement may be needed, but that would depend on the facts of a case. However, it is not the requirement of law that the contents of the video would become admissible only if it is reduced to a transcript in the words of a witness who created the video or is noticed in the video. Besides that, in the instant case, the search and seizure operation was sought to be proved by oral evidence of witnesses. The video, therefore, was perhaps to corroborate the oral testimony. …”

General Evidence on Factual Features through a ‘Proper’ Witness Sufficient

Besides admission of the other side as regards the authenticity, the photographs or videos may instead be proved through a ‘proper’ witness capable to furnish ‘general (and reliable) evidence’ (to invoke the ‘general presumption‘ under Section 119, BSA) regarding the factual features depicted therein, such as the identity of the persons in the photograph, the place, the time, or the surrounding circumstances.

The following legal principles are relevant in this matter:

  • 1. The relevance of the photograph or video can be established by ‘general evidence’ regarding the identity of the persons seen in the photograph, the place, etc.
  • 2. The admissibility of a photograph or copy of a video (under the Section 63(4) certificate) and its formal proof are two distinct and independent matters.
  • 2. Even in cases where formal proof of the photographs or copies of videos is dispensed with, the certificate under Section 63(4) of the BSA (Section 65B of the IEA) is necessary — in view of the non-obstante clause in Section 63 of the BSA.
  • 3. A photograph or a copy of video, admitted in evidence on the strength of a certificate under Section 63(4), stands on a distinct footing (in contradistinction to a statement-of-account) by reason of the statutory (general) presumptions that the court can invoke (under Section 119 BSA), it being direct visual depictions of facts.
  • 4. The certificate under Section 63(4) is accepted unless its correctness is specifically challenged. The oral evidence of the person who issued the certificate becomes relevant (for the purpose of admitting the document) only where the certificate itself is specifically and successfully challenged by the party who disputes its authenticity or correctness.
  • 5. Therefore, the court is entitled to infer that a photograph or video, once duly admitted in evidence, correctly represents the scene or object as it existed at the time of recording. It is doctrinally recognised as the ‘silent witness’ theory – the document “speaks for itself”.
  • 6. Once a photograph or a copy of a video is duly admitted in evidence, the court cannot discard it, equating it to hearsay or corroborative evidence. The court cannot, as an invariable rule, insist upon further direct proof of the facts depicted in the photo or video. That is, the court has to accept it as a piece of (substantive) evidence.
  • 7. The presumption attached to a photograph or a video admitted in evidence being one rebuttable, the opposite party can rebut it by placing appropriate evidence to show that the photograph or video does not correctly represent the scene, object, or occurrence as it existed at the relevant point of time, or that the factual position had materially changed.

Photo Identification falls under the Pictorial Testimony Theory

Photo identification falls under the Pictorial testimony theory. Because the court has nothing to perceive from the photograph by itself; it only serves as an aid to the witness. The material and substantive evidence is the personal knowledge of the witness, and not what is depicted in the photograph.

The Kerala High Court (KT Thomas, J.), in Ponnappan v. State of Kerala, ILR 1994(3) Ker 370, confirmed the conviction, holding that Chacko was the person who was killed. It was on a photo identification. The Court held as under:

  • “PW I identified the person in M.O. 9 photo as the person who was killed. There is no doubt that M.O. 9 is the photograph of Chacko, the film representative. It was contended that since P. W. 1 himself admitted that he had not observed the features or facial peculiarities of the person when he was inside the car, the identification made by him with the help of the photo is not of any use. We are of the view that even without noticing any translatable mark or feature of a person, it would be possible to identify him later.”

Read also:

Pictorial Testimony Theory: No Enacted Law; Only Judicial Exposition

The pictorial testimony theory rests on judicial exposition rather than statutory codification. It finds only indirect support, in principle, from Section 162 (Refreshing Memory), BSA. Section 162 is to be understood as one not exhaustive in its operation.

Section 162 of the BSA reads as under:

  • “Refreshing memory: (1) A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory:
    • Provided that the witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it, he knew it to be correct.
  • (2) Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
    • Provided that the Court be satisfied that there is sufficient reason for the non-production of the original:
    • Provided further that an expert may refresh his memory by reference to professional treatises.”

R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157

In R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157, the Apex Court summarised the earlier decision, Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720, (which considered the evidentiary value of tape recording, compared to that of a photograph) as under:

  • “In Nagri’s case (Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720) the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector  Sheikh gave evidence of the talk. The tape record corroborated his testimony, as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act.” (Referred to in: K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275)

After summarising Nagri’s case (Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720), the Supreme Court continued as under:

  • “The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secures scrupulous conduct and behaviour on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused, the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the surrounding circumstances.”

Conclusion

  • The only Mode of Proof of a computer output (copy) is the certificate under Section 63(4).
  • Where formal evidence is required to establish the relevance or authenticity of a photograph or video, it is sufficient for the party concerned (under the silent witness theory) to adduce ‘general evidence’ relating to the factual aspects depicted therein—such as the identity of the persons depicted, the place, the time, or the circumstances depicted.
  • As pointed out in State Represented by the Inspector of Police, Chennai v. V. P.  Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, a bald denial of the contents of the videotape is not adequate to doubt its authenticity; there should be material to show that they are doctored or morphed.
  • The photograph or video constitutes substantive evidence. Though in many cases it is relied upon as corroborative evidence, in an appropriate case it may, by itself, establish the fact in issue, independently and without the aid of other evidence. It may also be from the ‘best evidence‘ in certain cases (Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178). In any case, the probative value of a document is a matter for the court.
  • The photograph admitted merely as a non-probative aid to enable a witness to explain or illustrate what he personally perceived need not be proved by a ‘proper’ witness; and, no certificate is required for such photographs under Section 63(4) of the BSA.

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End Notes — 1

Electronic Evidence — Indian Law in Comparative Perspective to Other Jurisdictions

Electronic Evidence – Cannot be Ignored on any Technicality

In Shafhi Mohammad s. State of Himachal Pradesh, AIR 2018 SC 714; 2018-2 SCC 801, , our Supreme Court, stated as under:

  • “21. We have been taken through certain decisions which may be referred to. In Ram Singh vs. Ram Singh [Ram Singh vs. Ram Singh, 1985 Supp SCC 611] , a three-Judge Bench considered the said issue. English judgments in R. v. Maqsud Ali [R. v. Maqsud Ali, (1966) 1 QB 688] and R. v. Robson [R. vs. Robson, (1972) 1 WLR 651] and American Law as noted in American Jurisprudence 2d (Vol. 29) p. 494, were cited with approval to the effect that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence was held to be admissible, subject to safeguards adopted by the Court about the authenticity of the same. In the case of tape-recording, it was observed that voice of the speaker must be duly identified, accuracy of the statement was required to be proved by the maker of the record, possibility of tampering was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant”. (Quoted in: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1)

Proof on Video – UK, US and Canada 

The following are the well-accepted UK authorities on proof of electronic evidence.

  • (i) R. v. Maqsud Ali [1966] 1 QB 688) – on tape recordings,
  • (ii) R v. Clare and Peach (1995] 2 Cr App R 333) – on photograph,
  • (iii) R v. Atkins [2009] EWCA Crim 1876 – on CCTV.

The following is the important US authority on proof of videos.

  • State of Nevada v. Archanian, 145 P 3d 1008 (2006) – Supreme Court of Nevada (a U.S. state)

The following are the well-accepted Canadian authorities on proof of videos.

  • (i)  R. v. Bulldog, 2015 ABCA 251 – Alberta Court of Appeal(Western Canada).( It is followed in  Her Majesty v. Jaiyhi He, 2017 ONCJ 790 –  Ontario Court of Justice in Canada)
  •  (ii) Her Majesty v. Jaiyhi He, 2017 ONCJ 790 –  Ontario Court of Justice in Canada.

These decisions consistently laid down the following as to the admissibility of a video in evidence:

  • (a) The video must be relevant to the issues at trial.
  • (b) The video must be authentic – that it accurately represents the events depicted.

Madras High Court Relied on the above Canada Decisions

While considering the developments in the law on video and photographic evidence, the Madras High Court, in State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019-2 CTC 391; 2019-3 CTC 391; 2019-2 MLJ(Cri) 129, relied on the aforesaid decisions –

  • (a) State of Nevada v. Archanian, 145 P 3d 1008 (2006);
  • (b) Her Majesty v. Jaiyhi He, 2017 ONCJ 790.

 The Madras High Court held as under:

  • “115. We may also incidentally notice the developments in the law on video and photographic evidence in the West where the “silent witness” theory is deployed to admit video and photographic evidence. The theory proceeds on the footing that photographic and video evidence are “silent witnesses” which speak for themselves. They are substantive evidence of what they portray. Two examples may be noticed.
    • (a) State of Nevada v. Archanian, 145 P 3d 1008 (2006) was a murder case before the Supreme Court of Nevada, where, a key piece of evidence was the digital video recorded by the store’s surveillance system. The accused attacked the authenticity of the video footage on the ground that the VHS tape given to the police video technician was not the original and that the technician had isolated the relevant camera view and highlighted certain portions of the video. It was this composite videotape that was shown to the jury. In the trial, the prosecution acknowledged that they had no way of knowing whether the images were accurately transferred from the original digital recording to the VHS version but testified that they appeared to be the same. The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held as under:
    • “There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”
    • (b) More recently, in Her Majesty v. Jaiyhi He, 2017 ONCJ 790 Kenkel, J. of the Ontario Court of Justice in Canada formulated a test, very similar to our own and that has been alluded to by us in para 105 (supra). The Court opined:
    • “The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility:
    • They must prove the video is relevant, showing the crime scene or other evidence linked to the issues at trial.
    • They must prove the video is authentic – that it accurately represents the events depicted.”

Halsbury’s Laws of England

In Halsbury’s Laws of England, Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure, it is stated while dealing with “Documentary and Real Evidence”, as under:

  • “1471. Audio and video recordings. – An audio recording is admissible in evidence provided that the accuracy of the recording can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise admissible [R. v. Maqsud Ali, (1965) 2 All ER 464, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr. App. Rep 230, CCA. For the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v. Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr. App. Rep 171; R. v. Robson, R. v. Harris [1972] 2 All ER 699, 56 Cr.App. Rep 450. See also R. v. Senat, R. v. Sin (1968) 52 Cr. App. Rep 282, CA; R. v. Bailey [1993] 3 All ER 513, 97 Cr. App. Rep 365, CA. Where a video recording of an incident becomes available after the witness has made a statement, the witness may view the video and, if necessary, amend his statement so long as the procedure adopted is fair and the witness does not rehearse his evidence: R. v. Roberts (Michael), R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691, CA.]. However, that evidence should always be regarded with caution and assessed in the light of all the circumstances [R. v. Maqsud Ali, (1965) 2 All ER 464, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. As to the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR 823, CA; and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to the tape recording of police interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the Police and Criminal Evidence Act, 1984 s. 78 (as amended) (see para 1365 ante) as unfair evidence see R. v. H [1987] Crim. LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep 456, CA (tape recording admitted despite element of entrapment).].
  • A video recording of an incident which is in issue is admissible [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.]. There is no difference in terms of admissibility between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of what the camera has filmed. A witness who sees an incident on a display or a recording may give evidence of what he saw in the same way as a witness who had a direct view [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC. As to the admissibility of video recordings as evidence identifying the defendant see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the identification of the defendant by still photographs taken by an automatic security camera see R. v. Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr.App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA.].” (Quoted in: P.  Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161)

R. v. Maqsud Ali

R v. Maqsud Ali, (Court of Appeal, England and Wales, Criminal Division [1966] 1 QB 688), considered the admissibility of secret tape recordings. It is a foundational case on audio recordings. It was cautioned that such evidence should be relevant and reliable, and also be a legitimate exhibit.

R v. Clare and Peach

R v. Clare and Peach (Court of Appeal, England and Wales, Criminal Division [1995] 2 Cr App R 333)  is an authority concerning the admissibility of photographic identification evidence under the Police and Criminal Evidence Act, 1984 (UK). It is held that the production of photographs to witnesses amounts to a “recognition” rather than a “formal identification” procedure.

R v. Atkins

R v. Atkins, [2009] EWCA Crim 1876, of the Court of Appeal (Criminal Division) ), England and Wales, is a modern locus classicus on the visual evidence (CCTV) and identification testimony and expert opinion in criminal proceedings. The Court of Appeal held that expert evidence, in cases involving CCTV footage and photographic comparisons, could be admissible when it assisted the jury beyond their ordinary experience. However, the Court emphasized that such evidence must be based on a demonstrably reliable methodology.

R. v. Bulldog, 2015 ABCA 251

This decision of the Alberta (Western Canada) Court of Appeal is the leading authority on the following:

  • (i) A video can be proved by any one of the following –
    • (1) the camera operator;
    • (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw;
    • (3) a person qualified to state that the representation is accurate; or
    • (4) an expert witness.
  • (ii) What is required is the proof as to authenticity of the video; and not the evidence that the video is ‘not altered’.

Two questions came for consideration in this case. They were –

  • .1. “Can a digital video only be authenticated by an eyewitness”?
  • 2. Should there be proof – video was not altered or changed?

Both questions were answered negatively in R. v. Bulldog.

“Can a digital video only be authenticated by an eyewitness”?

One of the main questions in R. v. Bulldog, 2015 ABCA 251, was whether a digital video can only be authenticated by an eyewitness.

It held as under:

  • “[20] [The appellants argue] that Nikolovski sets two preconditions to the admissibility of video recordings – specifically, proof that the video accurately depicts the facts, and that it has not been altered or changed. The appellants refer to the process of establishing these facts as ‘authentication,’ and we are content to adopt that term, since ‘authentication’ simply refers to the process of convincing the court that certain tangible evidence matches the claims made about it . . .
  • [21] The second proposition, which relies on R v Doughty, 2009 ABPC 8 (CanLII) at para 37 (citing Elliot Goldstein, Visual Evidence, A Practitioner’s Manual, Vol 1 (Thomson-Carswell, 2007) at 2-19 to 2-20), is that there is an exclusive list of classes of witnesses who can authenticate a video in a manner that meets these two putative Nikolovski preconditions:
  • (1) the camera operator;
  • (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw;
  • (3) a person qualified to state that the representation is accurate; or
  • (4) an expert witness.
  • [22] Based on these two propositions, the appellants argue that the Crown’s evidence in this case could not authenticate the DVD. They submit (but do not really argue) that the authenticating witness was Reddick, who did not create the DVD tendered, did not know who created it, did not know whether the person who did create it used or might have used options which changed the content of the source video footage, was not an expert in the software and in the format changes entailed in copying the DVD and, accordingly, could not give the expert evidence of the effect of format changes which the appellants say is necessary to authenticate the DVD: R v Penney, 2002 NFCA 15 (CanLII), 2002 NFCA 15 at para 24, 210 Nfld& PEIR 209.
  • [23] In short, the appellants say that, absent evidence from a particular class of qualified person verifying that the video recording had not been altered or changed in the course of undergoing various format changes, the DVD was inadmissible.
  • . . . . . .
  • [34] It will be recalled that the appellants say that, because Reddick does not fit into any of the four categories identified by Goldstein
    • [at para. 21 of the judgment and consisting of: the camera operator; an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw; a person qualified to state that the representation is accurate; or an expert witness.]  
  • as persons capable of authenticating video evidence, it follows that the Crown could not authenticate the video recording. We assume that the appellants also maintain that none of the other Crown witnesses would fit into those categories, although we observe that Hodge would have fallen into Goldstein’s second category as an eyewitness, had he viewed the video in court and testified that it accurately depicted what he saw. In any event, these categories are not exhaustive in the sense that, if the Crown does not call one of these four kinds of witnesses, the video recording is inadmissible. Rather, other kinds of evidence or different combinations of witnesses may be employed to satisfy a court of the video recording’s substantial accuracy and fairness.”

Should there be Proof – Video not been Altered or Changed?

Another main question in R. v. Bulldog, 2015 ABCA 251, was whether a digital video can only be authenticated by an eyewitness. The appellants argued that R. v. Nikolovski, [1996] 3 S.C.R. mandated a two-fold test: that is  –

  • .(i) requiring proof that the video accurately depicted the facts and
  • (ii) proof that it had not been altered or changed.

The Alberta Court of Appeal (R. v. Bulldog, 2015 ABCA 251) disagreed with the appellant finding, in a nutshell, as under:

  • 1. When accuracy of the video is satisfied, evidence regarding the absence of alteration was not necessary.
  • 2. The mere fact of alteration did not automatically render a video recording inadmissible.
  • 3. The Crown’s failure to establish that the DVD was not altered was not fatal if it is proved that the DVD was a substantially accurate and fair representation of what it purported to show.

The Alberta Court of Appeal (R. v. Bulldog, 2015 ABCA 251) said it as under:         

  • “[26]  . . . the appellants say that Nikolovski creates a two-part test which must be met before admitting video evidence, requiring the Crown to show not only that the video recording accurately depicts the facts, but also that it has not been altered or changed. This is incorrect.
  • [27]  It must first be borne in mind that Nikolovski was not a case about the admissibility of a video recording (which had been conceded), but rather about identity (specifically, whether a trier of fact could identify the accused beyond a reasonable doubt as the offender by relying solely upon that video recording). The critical passage from Nikolovski, para 28 upon which the appellants rely, is found under a heading discussing ‘Use That Can Be Made of Photographs or Videotapes,’ which clearly presupposes admissibility.
  • [28]      Further, the passage itself fails to support the appellants’ contention. It reads as follows: 
  • Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence.
  • This statement does not state a necessary condition for admission, but rather a sufficient condition. It does not, even implicitly, preclude admission of video recordings under other circumstances. Indeed, where an alteration enhances a video recording, its accuracy might well be served by such an alteration: R v Jamieson, [2004] OTC 369 at paras 36-37, [2004] OJ No 1780 (QL) (SCJ).
  • [29] We do agree with the appellants, however, that in some cases Nikolovski has been taken as requiring the tendering party to show an absence of alteration or change: Penney; R v. MacNeil, 2008 QCCS 915 (CanLII) at para 11, [2008] QJ No 1784 (QL); R v Chevannes, 2011 ONCJ 754 (CanLII) at para 16, [2011] OJ No 5937; R v Ellard, 2004 BCSC 780 (CanLII) at para 11, [2004] BCJ No 2914. In Penney, for example, the Newfoundland and Labrador Court of Appeal (at para 17) cited Nikolovski as authority for the statement that ‘[e]vidence establishing that the video has not been altered or changed is a precondition to its admission as evidence.’ With respect, we do not read Nikolovski as stating so broad a proposition, and we see no principled reason to support it. Indeed, taken to its extreme, it could render almost any DVD left unattended next to a computer inadmissible . . .
  • [30]  Other courts have taken a different view of Nikolovski, to the effect that a video recording may be admitted into evidence, even if it has been altered in some way, so long as it is shown to be a substantially accurate depiction of the event in question. In R v Brown, [1999] OTC 213, [1999] OJ No 4865 (CJ), where the Crown sought to tender at trial a security surveillance videotape and enhanced copies, the court stated (at para 3) that, when a videotape has been altered, the test for admissibility is: one of substantial accuracy . . . [T[he Crown must … prove on a balance of probabilities the substantial accuracy of the original tape and the enhancements of it to obtain the permission of the court to tender them in accordance with [Nikolovski] ….
  • [31] Similarly, in R v Crawford, 2013 BCSC 2402 (CanLII) at para 48, [2013] BCJ No 2879 (emphasis added), the court said that Nikolovski should be interpreted in a ‘purposive’ manner, such that a video recording’s admissibility is not precluded, even if ‘complete accuracy’ no longer subsists, so long as ‘the alteration of the recorded event is not so substantial as to be misleading’ or ‘if the image is distorted or otherwise changed in a material way.’ What matters, said the court in Crawford, is that the video recording ‘accurately and fairly presents he information that it is to convey.’ Other courts, including this Court, said much the same thing prior to Nikolovski . . .
  • [32] There is an important distinction between recordings (video or audio) and other forms of real evidence (such as a pistol or an article of clothing found at a crime scene) which supports a test of ‘substantial’ accuracy over the appellants’ preferred test of ‘not altered.’ It will be recalled that ‘authentication’ simply requires that the party tendering evidence establish (to the requisite standard of proof, which we discuss below) the claim(s) made about it. What authentication requires in any given instance therefore depends upon the claim(s) which the tendering party is making about the evidence. In the case of most real evidence, the claim is that the evidence is something – the pistol is a murder weapon, or the article of clothing is the victim’s shirt. Chain of custody, and absence of alteration will be important to establish in such cases. In the case of recordings, however, the claim will typically be not that it is something, but that it accurately represents something (a particular event). What matters with a recording, then, is not whether it was altered, but rather the degree of accuracy of its representation. So long as there is other evidence which satisfies the trier of fact of the requisite degree of accuracy, no evidence regarding the presence or absence of any change or alteration is necessary to sustain a finding of authentication.
  • [33] Put simply, the mere fact of alteration does not automatically render a video recording inadmissible. It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show. All this is, of course, subject to the standard framework for admission, under which a video recording may be excluded on the basis of irrelevance (Penney), where its prejudicial effect exceeds its probative value (R v Veinot, 2011 NSCA 120 (CanLII) at paras 24-27, 311 NSR (2d) 267), or where there is reasonable doubt that the video identifying the accused is a fabrication.”

Circumstantial Evidence be Used – No Particular Evidence or Class of Witness

Referring to the Alberta Court of Appeal’s decision in R. v. Bulldog, 2015 ABCA 251, the Ontario Court in Her Majesty v. Jaiyhi He, 2017 ONCJ 790, KENKEL J., said:

  • “Introduction
  • [1] Constable Sebastian found a white Mercedes stopped in the roadway and a man lying unconscious on the grass nearby. Mr. He was subsequently charged with having care or control of a vehicle while his ability to operate that vehicle was impaired by consumption of alcohol. The next day, another officer went to a business near the scene of the incident and saw two surveillance cameras that could have captured the events on video. He spoke with a manager who had access to the surveillance video system, watched the videos from those cameras and found that one captured this incident. The manager copied the video from their system to a DVD the officer had brought for that purpose. At issue is whether the Crown has proved the surveillance video admissible where no person from the business was called to authenticate the copy.
  • Surveillance Video Authentication
  • [2] The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility:
    • They must prove the video is relevant, showing the crime scene or other evidence linked to the issues at trial.
    • They must prove the video is authentic – that it accurately represents the events depicted.
    • The test is satisfied on a balance of probabilities – R v Bulldog 2015 ABCA 251 at paras 39-40.[1]
  • [3] The defence refers to a statement in R v Nikolovski, [1996] SCJ No 122 at para 28 as setting the test for authentication, “Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence.” The defence submits that while there is eye witness evidence that can authenticate a portion of this video, there is no witness who can identify the initial events so there’s no evidence that portion of the video is an accurate representation. Second, the Crown has failed to prove that the video has not been altered or changed. The Crown has not called anyone from the company that kept the surveillance system so the video has not been authenticated and should not be admitted.
  • [4] The argument that Nikolovski sets out a two-step test for video authentication was rejected by the Alberta Court of Appeal in R v Bulldog supra. The court noted that Nikolovski was not a case about video admissibility as that had been conceded at trial.[2] They found that the passage cited above does not state a test or necessary condition for authentication, but rather a sufficient condition – Bulldog at para 28. What matters with video evidence is the degree of accuracy of its representation. So long as there is other evidence which shows the video is accurate, no evidence regarding the absence of any change or alteration is necessary – Bulldog at para 32.
  • [5] Constable Lewis went back to the scene during business hours the day after the accused’s arrest. He spoke to the people at the company and was referred to a manager who had access to the surveillance video equipment. Constable Lewis saw the video recording system, he viewed the surveillance video at the relevant time and found that it showed this incident. He watched the manager make a digital copy directly onto a DVD that the officer had brought for that purpose.
  •  [6] Circumstantial evidence may be used to authenticate real evidence – Bulldog at para 35. There is no particular evidence or class of witness that must be called to authenticate a video provided the whole of the evidence establishes that the video in question is substantially accurate[3] and a fair depiction – Bulldog at para 37.
  • The surveillance system described by the officer operates automatically. The copying of a digital record as described by the officer is a simple and now familiar procedure. A side by side comparison of the two videos is not necessary to prove the reliability of the copy in that context. There’s nothing in the evidence that casts doubt on the integrity of this record. I find the circumstances described by the officer and his direct observations establish the integrity and accuracy of the video on the balance of probabilities. The testimony of a company representative to confirm the officer’s observations about the video system and the fact that a direct digital copy was made would add little to the officer’s evidence. The absence of a company witness does not render the video inadmissible.
  • “7. While the circumstantial evidence is sufficient, in this case, there is further direct evidence that independently shows the video is accurate. The surveillance video is in sync with all of the other evidence at trial. The officers’ testimony as to the scene when they arrived, the times the various officers arrived, their actions, the position of the accused, the departure of other parties, the arrival of the ambulance is all consistent with this video. The two police in-car videos are also consistent with this surveillance video.
  • [8] On this point, the defence submits that the evidence of the officers and the police in-car videos may confirm the accuracy of the surveillance video after they arrived, but it cannot confirm the accuracy of the video prior to that time. I disagree. The fact that every part of the video that could be confirmed by independent evidence is consistent with that evidence is a circumstance which strongly supports the accuracy of the entire video including those minutes before the police arrived. I find the surveillance video is also admissible on that basis.”

Quoting the para 6 and 7 above, the Madras High Court, in State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019-2 CTC 391; 2019-3 CTC 391; 2019-2 MLJ(Cri) 129), said as under:

  • “We have referred to these decisions in order to reiterate that a pragmatic and purposive interpretation of the law governing the admission of electronic evidence is consistent with the development of the law in international jurisdictions as well.
  • 116. We, therefore, unhesitatingly hold that the photos and videos in M.Os.45,49,50,51,52 and 53 were taken contemporaneously when the attack was taking place and have not been doctored and can be read in evidence.”

 “Balance of Probabilities”

In R v Penney, (2002) 163 CCC (3d) 329, the court considered the ‘falsification of evidence’ and pointed out that the members of a jury ‘can be expected to have, if not experience with, knowledge of the possibilities for manipulating the content of photographs and videotapes’, and concluded that the ‘standard by which the trial judge is to determine the question is on the balance of probabilities’

Conclusion

The following are the distinctive features of Indian law that significantly relax the strict burden of proof governing electronic evidence:

  • (i) Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 stipulates that a computer output (i.e., a copy of an electronic record) is ordinarily admissible upon the production of the prescribed certificate, thereby facilitating the mode of proof of secondary electronic evidence; and
  • (ii) Section 119 of the Adhiniyam enables the Court to presume the accuracy of electronic records, including photographs and video recordings, with the result that the evidential burden shifts to the opposing party to rebut such presumption by placing cogent material on record.

In contrast, UK law adopts a more common law–driven and cautionary approach. While electronic and video evidence is readily admissible upon proof of relevance and authenticity, the courts have consistently emphasised the risks inherent in visual identification, particularly from CCTV footage. The leading authority in this regard is R v Atkins. It emphasises careful judicial scrutiny, especially where the quality of the images is poor or where identification rests on inference.

Thus, Indian law tends to ease the evidentiary burden at the threshold of admissibility. The UK law places comparatively greater emphasis on rigorous scrutiny at the stage of evaluation and weight, particularly in cases involving identification from video recordings

A similar facilitative approach is discernible in Canadian law. Both the Canada Evidence Act and the Ontario Evidence Act recognise a presumption as to the “integrity of an electronic documents system”, in the absence of evidence to the contrary. In this respect, Indian law aligns more closely with the Canadian model, in that it employs statutory presumptions to ease the evidentiary burden, rather than relying predominantly on case-by-case judicial calibration (as it prevails in the UK).

End Notes – 2

International Criminal Proceedings: No strict Requirement – Photographs be Corroborated

Rules 63 and 64 of the ‘International Criminal Proceedings (ICC) Rules of Procedure and Evidence’ say about the discretion of a Chamber to assess freely all evidence submitted in order to determine its relevance or admissibility. From the above, it is clear that there should be reliable information as to

  • the date,
  • location and
  • events depicted   

for determining the

  • relevance,
  • probative value and
  • admissibility of the photograph-evidence.

Rules 63 and 64 of the ‘International Criminal Proceedings (ICC) Rules of Procedure and Evidence’ read as under:

“Rule 63: General provisions relating to evidence

  • .1. The rules of evidence set forth in this chapter, together with article 69, shall apply in proceedings before all Chambers.
  • 2. A Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9, to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69.
  • 3. A Chamber shall rule on an application of a party or on its own motion, made under article 64, subparagraph 9 (a), concerning admissibility when it is based on the grounds set out in article 69, paragraph 7.
  • 4. Without prejudice to article 66, paragraph 3, a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence.
  • 5. The Chambers shall not apply national laws governing evidence, other than in accordance with article 21.”

“Rule 64: Procedure relating to the relevance or admissibility of evidence

  • .1. An issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber. Exceptionally, when those issues were not known at the time when the evidence was submitted, it may be raised immediately after the issue has become known. The Chamber may request that the issue be raised in writing. The written motion shall be communicated by the Court to all those who participate in the proceedings, unless otherwise decided by the Court.
  • 2. A Chamber shall give reasons for any rulings it makes on evidentiary matters. These reasons shall be placed in the record of the proceedings if they have not already been incorporated into the record during the course of the proceedings in accordance with article 64, paragraph 10, and rule 137, sub-rule 1.
  • 3. Evidence ruled irrelevant or inadmissible shall not be considered by the Chamber.”

According to Rule 63(4) of the  International Criminal Courts (ICC) Rules of Procedure and Evidence, it is pointed out that there is no strict legal requirement that a photograph has to be corroborated by other evidence for the Court to be able to rely on it and establish a specific fact [Prosecutor v Lubanga, ICC-01/04-01/06-2842,14 March 2012, TC I-718 ].

In Prosecutor v Lubanga it is observed as under:

  • “644. The prosecution relies on a number of video excerpts to establish that some of the UPC/FPLC recruits were “visibly” under the age of 15. The defence argues that it is impossible to distinguish reliably between a 12 or 13 year-old and a 15- or 16-year-old on the basis of a photograph or video extract alone. The Chamber accepts that for many of the young soldiers shown in the video excerpts, it is often very difficult to determine whether they are above or below the age of 15. Instead, the Chamber has relied on video evidence in this context only to the extent that they depict children who are clearly under the age of 15.”

(See: Prosecutor v. Ntaganda: Decision on Prosecution’s request for admission of documentary evidence,  ICC-01/04-02/06-1838 (28 March 2017) (TC VI) [68]. Prosecutor v Oussama Achraf Akhlafa, ECLI: EN: RBDHA: 2019: 7430, the Dutch District Court in Hague noted that “determining the date on which a particular image was taken is potentially an interesting element in the context of a criminal investigation”.)

Specific Presumptions on Elc. Record in S. 81 & 93, BSA

Specific presumptions relating to electronic records are contained in Sections 81, 85, 86, 87, 90 and 93 of the Bharatiya Sakshya Adhiniyam, 2023. Two of them are very important. They are given below.

S. 81 of the Bharatiya Sakshya Adhiniyam, 2023 reads as under:

  • 81. Presumption as to Gazettes in electronic or digital record: The Court shall presume the genuineness of every electronic or digital record purporting to be the Official Gazette, or purporting to be electronic or digital record directed by any law to be kept by any person, if such electronic or digital record is kept substantially in the form required by law and is produced from proper custody.
  • Explanation.—For the purposes of this section and section 93 electronic records are said to be in proper custody if they are in the place in which, and looked after by the person with whom such document is required to be kept; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render that origin probable.

Section 93 BSA reads as under:

  • “93. Presumption as to electronic records five years old: Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf.
  • Explanation.—The Explanation to section 81 shall also apply to this section.”

End Notes — 3

Photograph-Evidence: In a Nutshell

Photographs are admissible in evidence as documents.  P.  Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
While considering a case on dowry death, the prosecution argued that a photograph was not admissible in evidence as neither the person who took the photograph nor its negative was produced in evidence. But, the court accepted the photograph as ‘no dispute was raised by the prosecution witnesses’.Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551
A large number of photographs were marked and considered in this case.
In para 525, it is stated – the witness “was confronted with photographs of the inscription”
There were three sets of albums containing photographs taken by the State Archaeological Department pursuant to an order dated 10 January 1990 (Para 533).
In para 538, the Court considered the evidence of a witness as to the “photographs placed within the structure in 1990”.		M.  Siddiq v. Mahant Suresh Das, 2020-1 SCC 1 (Ayodhya case)
The factum of photo identification (of an accused) by PW 2, as witnessed by the officer concerned, is a relevant and admissible piece of evidence.Rabindra Kumar Pal v.  Republic of India, 2011-2 SCC 490
Nothing prevented the appellant-State Government from producing the relevant photographs of the purported pucca pond existing at some spots.State of Rajasthan v. Ultratech Cement Ltd. , 2022-12 Scale 606; 2022-13 SCR 1
A statement about the photograph made by any expert would not be admissible before examining the photographer.Dr. Pankaj Kumudchandra Phadnis v. Union of India, (2018) 5 SCC 785
Photographs, tape-records of speeches [Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17] are documents.Shamsher Singh Verma v. State of Haryana, 2016 15 SCC 485;
Nilesh Dinkar Paradkar v. State of Maharashtra, 2011-4 SCC 143
Photo identification of an accused during the investigation, who was seen by the witness at the relevant time.Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic  AIR 1999 SC  2562, 2000-1 SCC 138; Rabindra Kumar Pal v. Republic of India, AIR  2011 SC 1436; 2011 2 SCC 490
Inventory, photographs and the list of samples certified by the Magistrate are admissible as primary evidence. It is a substitute for the production of physical evidence of seized contraband samples.Nisar Ahmed Bhat, v. Union Territory of Jammu and Kashmir 2024 0 Supreme(J&K) 187  
The tape record corroborated his testimony, as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae.K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275;
R.M Malkani v. State of Maharastra, AIR 1973 SC 157;
Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720

End Notes — 4

Decisions on Electronic Records

  • CCTV footage in the following landmark cases:
    • State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600,
    • Tomaso Bruno Vs. State of Uttar Pradesh, (2015-7 SCC 178)
  • CDs/VCDs in respect of video recording by the Election Commission
    • Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216
  • CDs containing election speeches and songs in:
    • Anvar PV v. PK Basheer, (2014-10 SCC 473).
  • Conclusion of the Speaker on CDs received from TV News Channels:
    • Jagjit Singh v. State of Haryana, (2006) 11 SCC 1
  • Call Detail Records – CDR – of mobile phonesin:
    • Sonu v. State of Haryana (2017-8 SCC 570)
  • Tape recorded conversation on the landline phone
    • Vikram Singh v. State of Punjab, (2017) 8 SCC 518
  • Propriety of videography of the scene of crime or scene of recovery during investigation, in:
    • Shafhi Muhammed v. State of HP, (2018-2 SCC 801 )

End Notes — 5

Decisions on Photo/Audio/Video

Audio/Video cassettesZiyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17
Tape records of speechesTukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329
Photo or videoMohammed Rafiq v. Madhan, 2018-1 Mad LJ(CRI) 641;
Moti Rabidas v. The State of Bihar, 2015-145 AIC 435;
Vaman Narain Ghiya v. State of Rajasthan 2014-1 Raj Cri C 31;
State of MP v. Shankarlal, ILR 2010 MP 717;
P Rajagopal v. Inspector of police 2009-2 Mad LJ(Cri) 161;
Santhosh Baccharam Patil v. State of Maharashtra, 2002 All MR (Cri)997, 2003 BCR (Cri) 120.
CD  Shamsher Singh Verma v. State of Haryana, (2016) 15 SCC 485
Photographs including photographs of tombstones and houses Lyell v. Kennedy (No.3) (1884) 50 L.T. 730
Video recordings  State of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053
Audio and videoState of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053;
Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31;
Taylor v. Chief Constable Cheshire:1987(1) All.ER 225
CassettesTukaram S.Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329
Moving cinematographSenior v. Holdsworth, Ex parte Independant Television New Ltd. (1976) Q.B. 23)
Film  Rex v. Daye ((1908)2 K.B. 333, 340)
Floppies, CCTV footages, CDs, DVDs, Chips, Hard discs, Pen drives North West Airlines v. Union of India 2007 (214) ELT 178 (Bom.)

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