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 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.

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 questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved, etc. — 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.

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

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 — 2

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 — 3

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 — 4

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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