Admissibility and Proof of (i) Photographs and (ii) Copies of Videos

Saji Koduvath, Advocate, Kottayam.

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 (having regard to the non-obstante clause in Section 63).
  • 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.
  • Section 63 of the BSA primarily governs the admissibility of computer outputs (copies) and not the proof of the truth of their contents. Proof of the contents, where required, must ordinarily be established independently, in the same manner as in the case of any other category of documentary evidence.
  • However, a photograph or a copy of video, admitted in evidence based on a certificate under Section 63(4), stands on a distinct footing by reason of the statutory presumptions that can be invoked.
  • Photographs and videos, being constitute a direct visual depiction of a fact, the court is entitled to draw presumptions as to their genuineness and authenticity.
  • Therefore, in such cases, the court can act upon the duly admitted photograph or copy of the video without further formal proof, if there is no specific objection, from the opposite party, to the factual particulars depicted therein.

Presumptions on Photographs and Videos

  • Ordinarily, a photograph or copy of video produced along with a certificate under Section 63(4) does not require further formal proof, if no specific objection from the opposite side as regards the factual particulars depicted in the photograph or copy of video, as it constitutes a direct visual depiction of such matters, and the court is entitled to draw presumptions as to their genuineness and authenticity.
  • Consequently, even if the Section 63(4) certificate, accompanied to the photographs or copies of videos, is not that affirmed either by the plaintiff or by the defendant, but by another,  it can be marked in evidence—
    • through the plaintiff or the defendant, and
    • where it is necessary to lead formal evidence (because of the objection by the other side) to establish the relevancy or truth of the photo or video, only a general evidence relating to the factual aspects—such as the identity of the persons, the place, the time, or the circumstances depicted —need be placed by the party concerned.

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.

Should the Person Who Signed Section 63/65B Certificate Be Examined

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.

Once such a 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.

Though oral evidence has no place for establishing admissibility, it may still be relevant for assessing probative value or rebutting authenticity.

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 — 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 Computer Output is Admitted by S. 63 Certificate, Oral Evidence has No Place

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.

Bald Denials are Insufficient to Discredit the Authenticity of Video Footage

If the certificate under Section 63(4), BSA is issued by another, and marked through the plaintiff or defendant, without objection from the other side, the computer output (copy) can be used in evidence.

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 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 video tape 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’.”

The Madras High Court, in this decision (State Represented by the Inspector of Police, Chennai v. V. P.  Pandi) also relied on the following two foreign decisions:

  • (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.

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, the photographs and videos must be proved. No doubt, in the peculiar nature of a particular case, the examination of the photographer may not be insisted upon, and the photograph could be proved through another ‘proper’ witness who can give general evidence relating to the factual aspects—such as the identity of the persons, the place, the time, or the circumstances depicted. Similarly, formal proof of photographs or videos may not be necessary (in silent witness theory cases) if the opposite party admits their genuineness or correctness.

  • Note: 1. Formal proof of a photograph or copy of video and the requirement of the certificate under Section 63(4) 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, when a computer output (copy) of a photograph or video is produced — in view of the non-obstante clause in Section 63 of the BSA.
  • 3. If the photograph or the copy of the video is admitted in evidence supported by Section 63(4) certificate, and a general evidence relating to the factual aspects is given, the court can act upon the photograph or the copy of the video.

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).
  • The court can draw presumptions as to the genuineness and authenticity of the photographs or videos contained in the computer output (copies) if it is presented along with the certificate under Section 63(4).
  • Where a formal evidence to establish the relevancy or truth of the photo or video is required, only a general evidence relating to the factual aspects need be placed by the party concerned.
  • The photograph admitted merely as an aid (and not relied upon as substantive evidence) 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

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 — 2

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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