Adv. Saji Koduvath, Advocate, Kottayam.

Nutshell – Photo and Video: Evidence.

Nutshell – Photo and Video: Relevant and Admissibile

According to the Indian Evidence Act, 1872, Section 3,

• ‘Evidence’ means and includes:
• (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
• (2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

Definition of document

Section 3 of the Indian Evidence Act, 1872 defines ‘document’ as under:

• “ ‘Document’ means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.”
• Illustrations:
  • A writing is a document;
  • Words printed, lithographed or photographed are documents;
  • A map or plan is a document;
  • An inscription on a metal plate or stone is a document;
  • A caricature is a document.

‘Document’ takes-in photographs of words as could be seen from the illustration.

By virtue of Section 65B of the Indian Evidence Act,[1]  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’.

Besides the Evidence Act, term document has been defined in the General Clauses Act, 1897, and Indian Penal Code, 1860.  

Section 3(18), General Clauses Act 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 29, Indian Penal Code explains that the word document denotes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

In Explanation 1, it is stated:

• “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”

Going by the definitions, ‘document ‘ includes not only all materials or substance upon which thoughts of a man are represented by writing or any other specious of conventional mark or symbol, but also records of information of some sort.[2]

In P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1, it is observed that tape records of speeches (Also in: Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17 ) and 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) were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and were held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the Evidence Act (Anwar PV v. PK Basheer, 2014-10 SCC 473).

Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720

• “The process of tape-recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under s. 7 of the Indian Evidence Act.”

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

In R.M Malkani v. State of Maharastra, AIR 1973 SC 157, summarised this case (Yusaf Ali lsmail Nagri) as under:

• “In Nagree’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.”

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

K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275:

• 7. The amended definition of “evidence” in section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In R.M Malkani v. State of Maharastra, AIR 1973 SC 157, this court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such electronic record can be received as evidence.”

Photographs, Audio and Video Cassettes, CCTV footage, Electronic Documents etc.

It is clear that a document means something which conveys or affords information, notwithstanding the matter or medium on which it is exhibited, inscribed or contained.[3] Apart from a writing, picture, caricature, map or plan printed, lithographed or photographed on a piece of paper, document includes an inscription on a metal plate or stone. It also comprises:[4] Photographs including photographs of tombstones and houses,[5] Video recordings,[6] Audio and video[7] cassettes[8] or tape-recordings,[9] Moving cinematograph[10] film,[11] Electronic documents such as floppies, CCTV footages, CDs, DVDs, Chips, Hard discs, Pen drives,[12] e-mails- Ambalal Sarabhai Enterprise v. KS Infraspace LLP Limited (AIR 2020 SC 307); Sailendra Kumar Goswami v. State of Assam, 2022 CrLJ 4694, 2022-237 AIC 506; Facebook messages- Sanjib Sarkar v. Rajasree Roy, AIR  2022 Cal- 12; Whatsapp messages- Rakesh Kumar Singla v. Union Of India, 2021-1 RCR(CRI) 704, 2021-3 Cri CC 452; Priyanka Singh v. State of Maharashtra, 2021 All MR(Cri)  1276, 2021-3 Cri CC 110, 2021-4 BCR(Cri) 393 etc.

Photo identification has been held to be valid in Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau, (2000) 1 SCC 138, and Vasudevan v. The State, 1993 CrLJ 3151 (Ker). But in Sahadevan Sagadevan v. State by Inspector of Police, Chennai, AIR  2003  SC 215, the Apex Court did not accept  the identification through the photograph, after nearly 7 years. Similarly, in State (NCT of Delhi) v. Navjot Sandhu @ Afsal Guru, AIR 2005  SC 3820, ‘in regard to the identification of the photograph of deceased terrorist’, the  evidence was not accepted because it did ‘not inspire confidence, in view of the time lag of 8 months’.

Degree of Proof and Probability

In M. Siddiq (D) thr. L.Rs. v. Mahant Suresh Das, 2020-1 SCC 1; 2019(15) Scale 1, it is held as under:

• “506. The court in a civil trial applies a standard of proof governed by a preponderance of probabilities. This standard is also described sometimes as a balance of probability or the preponderance of the evidence. “Phipson on Evidence” formulates the standard succinctly: If therefore, the evidence is such that the court can say “we think it more probable than not”, the burden is discharged, but if the probabilities are equal, it is not. 114 In Miller v. Minister of Pensions (1947) 2 ALL ER 372, Lord Denning, ] (as the Master of Rolls then was) defined the doctrine of the balance or preponderance of probabilities in the following terms:
• (1)… It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, “of course

Pictorial Testimony Theory and Silent Witnesses Theory

Photographs, audio and video cassettes etc. are, as shown above, ‘documents ‘.  Depend upon the requirement of proving the authenticity, they are divided into two categories (Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31). They are:

• (i)  aid a witness in explaining his testimony (Pictorial testimony theory) – (E.g. a doctor explains injury with the help of a photograph; identification of a deceased with photo.);
• (ii) probative evidence of what those evidence (photo, X-ray etc.) depict (Silent witness theory) – (E.g. X-ray film; a photograph showing accused – in a crowd – armed with weapon, though the photographer did not see him; photograph of a scene of occurrence of a crime.)

Witnesses may, with their personal knowledge, state that a photograph is a fair and accurate representation of the fundamental facts appear therein. In such a case, the evidence of the witness will be the primary matter rather than what is depicted in the photograph; and the the photographer need not be examined in court, inasmuch as the photograph is admitted merely to aid a witness in explaining his testimony. They are, explained by Wigmore as, ‘nothing more than the illustrated testimony of that witness’. This principle gives rise to Pictorial testimony theory or communication theory.

But, when a photograph itself is taken as as probative and substantial evidence of the matters appear therein, it acquires the glorified status of independent ‘silent witnesses’. In such cases, there should be cogent evidence before the court, to admit the photograph in evidence.

Silent Witness Theory – which speaks for itself – A Proper Witness should be examined

When a photograph itself is used as an independent and substantive piece of evidence under the status of ‘independent silent witnesses’ – which speaks for itself, eg. photo of scene of occurrence of a crime – a proper witness (not necessarily the photographer) must be examined to show that the photograph accurately represent what is depicted; and when, where, and under what circumstances the photograph was taken.

In Black’s Law Dictionary, 9th Edition, at page 1508, ‘Silent Witness Theory’ is mentioned as under:[13]

• “A method of authenticating and admitting evidence (such as a photograph), without the need for a witness to verify its authenticity, upon a sufficient showing of the reliability of the process of producing the evidence, including proof that the evidence has not been altered.”

In Halsbury’s Laws of England, Fourth Edition, Vol. 1 7, at page 158, it is noticed as follows:[14]

• “224. Photographs. Photographs properly verified on oath by a person able to speak to their accuracy are generally admissible to prove the identity of persons, or the configuration of land as it existed at a particular moment (scientific deductions from them being made by a witness both skilled and experienced in such a task, or radar echoes or the contents of a lost document. In the High Court a photograph is receivable in evidence at the trial only when certain provisions have been complied with.”

In Halsbury’s Laws of England, Fifth Edition,Vol.11, at page 723, [15] it is stated as follows:

• 958.  Photographs, films, records, tape recordings and video recordings. At common law, photographs properly verified on oath by a person able to speak to their accuracy were generally admissible to prove the identity of persons, or the configuration of land as it existed at a particular moment (scientific deductions from them being made by a witness both skilled and experienced in such a task), or radar echoes or the contents of a lost document. For the purpose of Civil Evidence Act 1995, ‘document ‘means anything in which information of any description is recorded and a similarly wide definition applies for the purposes of disclosure under the Civil Procedure Rules.  Thus photographs, films, records, tape recordings and video recordings are all admissible in evidence, subject, if appropriate, to the statutory safeguards with regard to hearsay evidence. Prior notice must be given of a party’s intention to put photographs and certain other items in evidence.
• The court has power to order the photographing of property which is, or may become, the subject matter of proceedings.

Wigmore on Evidence, Chgadbourn Revision, Vol. III at page 220, it is observed as follows:[16]

• “Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which speaks for itself.”

Authentication Require from a Photographer in ‘Silent Witness‘ Theory

As shown above, examination of the photographer (or some other competent person) is required in the cases which fall in the category of ‘proving photograph (or CCTV, film, CD, e-mails etc.) under Silent-Witness-Theory’. In Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31 the Kerala High Court examined what quantum of authentication do courts require before a photograph may be admissible in evidence. It is held as under:

• “It is simply this – that some witness (not necessarily the photographer) be able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portray the subject or subjects illustrated.  The photograph need only be sufficiently accurate to be helpful to the court and the jury.
• In Taylor v. Chief Constable Cheshire, (1987)1 All.E.R.225, it was held as under: “The next case to which I would refer is the case of RV Fowden and White [1982] Crim LR 588. There two persons, the appellants, were alleged to have been photographed on a video film carrying out acts of theft. At their trial the Crown sought to call evidence from a police officer and a store detective who knew Fowden and While to say that the persons on the film were the accused.  The judge admitted that evidence of identity, against the contention for the defence that it was purely a matter for the jury, looking at the film, to determine the question of identity. 
• On appeal it was held as under: ‘There was no difference in principle between a video film and a photograph or tape recording.  Although it was not strictly necessary to decide the point the Court was of the opinion there was no reason in principle why the Crown should not be able to call a witness who knows someone to look at a photograph and give evidence to the effect that he knows the person, and it is the accused.
• However, in the circumstances of that particular case the court held: ‘ … the evidence should not have been admitted as the prejudicial value outweighed its probative effect, because the identifying witnesses knew the accused for a similar shoplifting case a week later, and accordingly the defence were deprived from testing the accuracy of the identification without causing prejudice and embarrassment ‘”

‘Pictorial Testimony’ Theory – Photographer Need Not be Testified

It is explained in Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31, that the photographer need not be examined under the ‘pictorial testimony’ theory. It is observed as under:

• “Pictorial testimony theory or communication theory is based on the notion that any witness with knowledge that a photograph is a fair and accurate representation may testify to the fundamental facts. There is no requirement that the person who took the photograph should testify in order to authenticate the photograph.  It is enough that the individual testifying recognises the subject that is depicted in the photograph. Authenticity of the photograph is to be established like in the case of any other document. It must be noticed that documentary testimony theory only covers the admissibility of evidence and it does not refer to the evidence of the photographer as a fact finder. Under the silent witness theory, the following factors will have to be established:

• “Under “silent witness” theory, testimony, establishing authenticity, integrity, and competency of video recording.
• Photograph expert’s determination that video recording was not altered in any way, built-up or faked.
• Continuous chain of custody established. Video camera or camcorder was checked and property operating.
• Video recording is same as what witness saw on playback immediately after recording.
• No material alteration, surreptitious editing, or fabrications have taken place.”

Silent Witness Theory as applied in UK

The law in UK, as to admission of a video (or any other ‘electronic evidence’), can be understood from the decision, State v. Stangle, 166 N.H. 407, 97 A.3d 634 (The State of New Hampshire v. Stephen Stangle, 2014). It allows the trial court ample discretion as to admission of such evidence and to play or show such evidence before the jury.

In this decision, State v. Stangle, it is pointed out that, in past, courts admitted videos, in evidence, when it was introduced to illustrate the testimony of a witness who observed the same scene viewed by the recording equipment.  The “foundational requirements” should have been complied with for admitting such videos. But, where there was no first-hand witness, courts had adopted the ‘silent witness’ theory (which speaks for itself) to admit video recordings. This theory allowed “the introduction of the recording as primary, substantive evidence of the events depicted”.

It was further pointed out in this decision –

• Under this theory, “a witness need not testify to the accuracy of the image depicted in the photographic or videotape evidence if the accuracy of the process that produced the evidence is established with an adequate foundation.’’ (People v. Taylor, 353 Ill.Dec. 569, 956 N.E.2d 431, 438 (Ill.2011).
• It was not “wise to establish specific foundational requirements for the admissibility of photographic [or video] evidence under the ‘silent witness’ theory, since the context in which the … evidence was obtained and its intended use at trial will be different in virtually every case.” Fisher v. State, 7 Ark. App. 1, 643 S.W.2d 571, 575 (Ark.Ct.App.1982).
• It was enough to say, that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims.

The law in US on Silent Witness Theory

In State v. Reeves, 2021 S.D. 64; 967 N.W.2d 144 (Supreme Court of South Dakota, US) observed, referring State v. Stangle (supra) as under:

• “[16] Although we have not yet had occasion to analyze the foundational rules for authenticating automatic video distinctly from a video recorded by a human actor, many courts across the nation have implemented the silent witness theory to hold that photographs and videos may be admitted into evidence without foundation from a witness who took the photograph or video. See, e.g., U.S. v. Rengifo, 789 F.2d 975 (1st Cir. 1986); State v. Stangle, 166 N.H. 407, 97 A.3d 634 (N.H. 2014); State v. Luke, 464 P.3d 914 (Haw. Ct. App. 2020). However, “jurisdictions differ on what evidentiary showing is required to satisfy the ‘silent witness’ standard.” Stangle, 97 A.3d at 637. Generally, there are two categories of approaches employed. Some states implement a flexible, fact-based approach to allow a judge to tailor the authentication process to the individual case; in contrast, others use various “multi-factor test[s] for determining the admissibility of photographs or videos.”
• [17] The New Hampshire Supreme Court addressed the silent witness theory in State v. Stangle, 166 N.H. 407, 97 A.3d 634 (N.H. 2014) and declined to adopt a formulaic, factor-based approach to authentication. The Court reasoned that: ‘it is not wise to establish specific foundational requirements for the admissibility of photographic [or video] evidence under the ‘silent witness’ theory, since the context in which the evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say, that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims. This allows the trial court to consider the unique facts and circumstances in each case—and the purpose for which the evidence is being offered—in deciding whether the evidence has been properly authenticated.”’”

Relevancy and Admissibility of Photo and Video Evidence

Photo or video evidence may be the most valuable evidence in the facts of certain cases. Under the ‘Best Evidence Rule’ it may have great importance, as stated in the following decisions:

• Mohammed Rafiq Vs. Madhan, 2018-1 Mad LJ(CRI) 641;
• Moti Rabidas Vs. The State of Bihar, 2015-145 AIC 435;
• Vaman Narain Ghiya Vs. State of Rajasthan 2014-1 Raj Cri C 31;
• State of MP Vs. Shankarlal, ILR 2010 MP 717;
• P Rajagopal Vs. Inspector of police 2009-2 Mad LJ(Cri) 161;
• Santhosh Baccharam Patil Vs. State of Maharashtra, 2002 All MR (Cri)997, 2003 BCR (Cri) 120.

A greedy Indian from Kerala, S., employed in Abudabi, took insurance policy for a large amount.  With a view to claim that amount, S. and his fellows killed an innocent man, Chacko, while S. was in Kerala, and blazed him in the car owned by S. Police investigation revealed the conspiracy. S. being absconded, he could not be tried.  

The Kerala High Court, in Ponnappan v. State of Kerala, ILR 1994(3) Ker 370, in appeal, confirmed the conviction holding that Chacko was the person who was killed. It was on a photo identification – Pictorial testimony. 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.I 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.”

Apex Court Refers to viewing a Video by the High Court

In Lochan Shrivas v. State of Chhattisgarh, AIR 2022 SC 252, our Apex Court referred to the following as to viewing a video by the High Court-

• “35. It will also be relevant to refer to the following observations made by the High Court in para (35) of the impugned judgment:
  • “35. We have gone through the video movie prepared and after watching the video, we are of the view that the recovery of dead body was made from a place which cannot be said to be accessible to an ordinary person without prior knowledge as the body recovered was kept concealed in a gunny bag inside the shrubs situated at sufficient distance from the main road. In the statement under Section 313 CrPC, the accused/appellant failed to explain how he came to know that the deceased had been murdered and thrown in the shrubs after wrapping her in a gunny bag………”
• It could thus be seen that the High Court had itself viewed the video and on seeing the same, it was of the view that the recovery of the dead body was made from a place, which cannot be said to be accessible to an ordinary person without prior knowledge since the body recovered was kept concealed in a gunny bag inside the shrubs situated at sufficient distance from the main road.”

Determination of Possession – DVDs and CDs not acceptable

In Indore Development Authority v. Manoharlal, 2020-8 SCC 129, AIR  2020 SC 1496, it is observed as under:

• “270. The decision in Velaxan Kumar (supra) cannot be said to be laying down the law correctly. The Court considered the photographs also to hold that the possession was not taken. Photographs cannot evidence as to whether possession was taken or not. Drawing of a Panchnama is an accepted mode of taking possession. Even after re-entry, a photograph can be taken; equally, it taken be taken after committing trespass. Such documents cannot prevail over the established mode of proving whether possession is taken, of lands. Photographs can be of little use, much less can they be a proof of possession. A person may re-enter for a short period or only to have photograph. That would not impinge adversely on the proceedings of taking possession by drawing Panchnama, which has been a rarely recognised and settled mode of taking possession.
• 271. In the decision in Raghbir Singh Sehrawat v. State of Haryana, (2012) 1 SCC 792 the observation made was that it is not possible to take the possession of entire land in a day on which the award was declared, cannot be accepted as laying down the law correctly and same is contrary to a large number of precedents. The decision in Narmada Bachao Andolan v. State of M.P. (2011) 7 SCC 639, is confined to particular facts of the case. The Commissioner was appointed to find out possession on the spot. DVDs and CDs were seen to hold that the landowners were in possession. The District Judge, Indore, recorded the statements of the tenure-holder. We do not approve the method of determining the possession by appointment of Commissioner or by DVDs and CDs as an acceptable mode of proving taking of possession. The drawing of Panchnama contemporaneously is sufficient and it is not open to a court Commissioner to determine the factum of possession within the purview of Order XXVII, Rule 9 CPC. Whether possession has been taken, or not, is not a matter that a court appointed Commissioner cannot opine. However, drawing of Panchnama by itself is enough and is  a proof of the fact that possession has been taken.”

Relevancy of Documents

Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Admissibility of Documents

Generally speaking, all relevant documents are admissible. But, various provisions of the Evidence Act, Civil and Criminal Procedure Codes, Stamp Act, Registration Act etc. stipulate various formalities or regulations for tendering documents in evidence.

Probative Value of Documents

Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine.

State of Bihar Vs. 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.”

If there is a dispute regarding age, the Supreme Court, in State of Punjab Vs. Mohinder Singh (AIR 2005 SC 1868), held that the date of birth available in the School Admission Register has more probative value than the horoscope. The probative value of FIR, Scene-Mahazar, Post-Mortem Report, photocopy of a Registered Deed etc., by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered, by examining the proper witness.

In Om Prakash Vs. State of Punjab, 1993(2) CLR 395 and Jora Singh Vs. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probity evidence’ because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy Vs. C. Jayarama Reddy: AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax Vs. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)

Negative of Photos – ‘Primary Document’

In Laxman Ganpati Khot v. Anusuyabai, AIR 1976 Bom 168, it was observed that the photographs should not be admitted in evidence without examining the person who took the photographs and the negatives of the same being produced on record. 

Similar view in other cases also.

• State of Gujrat v. Bharat alias Bhupendra, 1991 Crl. L J 978 ;
• Joyita Saha v. Rajesh Kumar Pandey, AIR 2000 Cal 109;
• P. Rama Srinivasa Rao v. Dr. N. Ragavan, the Madras High Court (R Banumathi, J), (2006) 3 MLJ 625.
• Shubhangi Krishna Patil v. Rupali Krishnan Bachhe, 2010 1 MhLJ 253; 2011-7 RCR(Civ) 1687.
• Shamim Alam v. Dinesh Aggarwal, AIR 2013 Uchal  73.

In Vaman Narain Ghiya v. State of Rajasthan 2014-1 Raj Cri C 31 it is observed as under:

• “Relevance, admissibility and authentication of photographs have always posed a problem for the courts. These issues were limited as long as the courts were dealing with conventional photography using a camera with a film. The film was treated as the ‘primary’, or the  best evidence for the photograph taken. Thus, the courts required that the ‘negative’ be produced, and be proved by the photographer. An unquestioned belief entertained by the court was that the ‘print’ of the negative was an authentic copy of the negative. However, over the last four decades photography has undergone a technological revolution. From the conventional photography, the world has moved into the era of digital photography.

Tape-Record (Audio) Evidence 

It is held by our Apex Court in the following (earlier) cases that the tape records of conversations and speeches are admissible under the Indian Evidence   Act:

• S.   Pratap   Singh   v.   State   of   Punjab, (1964) 4 SCR 753; AIR 1964 SC 72
• Yusaffalli Esmail  Nagree  v.  State  of  Maharashtra, (1967) 3 SCR 720N. 
• Sri Rama Reddy v. V. V. Giri, AIR 1972 SC 1162
• R.M. Malkani v. State of   Maharashtra, AIR 1973 SC 157
• Ziyauddin   Burhanuddin v. Brijmohan   Ramdas, (1976) 2 SCC 17
• Ram Singh v. Col. Ram Singh, AIR 1986 SC 3

In S. Partap Singh vs. State of Punjab, AIR 1964 SC 72 it was laid down that the tape record evidence was admissible. In Yusufalli Esmail Nagree vs. State of Maharashtra, AIR 1968 SC 147 (Also: Tukaram S. Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329; Ram Singh v. Col. Ram Singh, AIR 1986 SC 3), it was pointed out that the tape record evidence was prone to tampering and that it must be proved by a competent witness.  

In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra ((1976) 2 SCC 17) it is observed as under:

• “19. We think that the High Court was quite right in holding that the tape-records of speeches were  ‘documents’ as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
• (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
• (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
• (c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”

In R.M. Malkani v. State of Maharashtras, 1973 Cri. L J 228: AIR 1973 SC 157, it was observed that the tape is primary and direct evidence of what has been said and recorded. However, in Mahabir Prasad Verma v. Dr. Surinder Kaul, AIR 1982 SC 1043, it was held that tape-recorded evidence can be used for corroboration alone (not as substantive evidence). Subsequently, it was observed by the Apex Court in Ram Singh v. Col. Ram Singh, AIR 1986 SC 3, it was receivable in evidence, not only to corroborate the evidence given by the witness but also to contradict the evidence, if there is proper authority – indicating the place, time and the name of person making the statement.

Contemporaneous Dialogue Admissible Under S. 7, Evidence Act

In Yusufalli Esmail Nagree v. State of Maharashtra [1961] (3) S.C.R. 720 this Court has observed:

• “Like a photograph of a relevant incident a contemporaneous dialogue of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act. Reference has been made in that case to
  • Roop Chand v. Mahabir Parshad and Anr. A.I.R. 1956 Punj. 173; 
  • Mahindra Nath v. Biswanath Kundu 67 C.W.N. 191; 
  • Pratap Singh v. The State of Punjab [1964] 4 S.C.R. 733 and
  • B. v. Maqsud Ali [1965] 2 All E.R. 464.”
• (Quoted in Ram Singh v. Col. Ram Singh, AIR 1986 SC 3)

In Shri U. Sri Rama Reddy Etc. v. Shri V.V. Giri [1971] 1 S.C.R. 399, a decision of five learned Judges of this Court the following observation made in Yusufalli’s case (supra) has been quoted with approval:

• “The contemporaneous dialogue between them formed part of the res gestae and is relevant and admissible under s.8 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape record of the dialogue corroborates his testimony. The process of tape-recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape- record of a relevant conversation is a relevant fact and is admissible under s. 7 of the Indian Evidence Act.” (Quoted in Ram Singh v. Col. Ram Singh, AIR 1986 SC 3)

In R.M. Malkani V. State of Maharashtra [1973] 3 S.C.R. 417, this Court observed:

• “Tape recorded conversation is admissible, provided first that the conversation is relevant to the matters in issue; secondly, there is identification of the voice, and thirdly, the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-record. 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 photo graph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act.” (Quoted in Ram Singh v. Col. Ram Singh, AIR 1986 SC 3)

Acceptance of Tape-recorded Phone Conversation

In State (NCT of Delhi) v. Navjot Sandhu @ Afsal Guru, AIR 2005  SC 3820: (2005) 11 SCC 600 (the case of storming the Parliament House complex and inflicted heavy casualties on the security men on duty), our Apex Court considered ‘auditory and spectrographic analysis’ of voice samples by expert. The Court accepted the report observing as under:

• “The Conversation was taped and PW48 the Senior Scientific Officer in CFSL, Delhi compared the voice samples of Shaukat and Afsan Guru sent to him with the voice on the cassette which recorded intercepted conversation. He made auditory and spectrographic analysis of voice samples. He submitted a report Ext. PW 48/1. PW 48 testified that on comparison the voice was found to be the same. The High Court doubted the authenticity of the intercepted conversation on the ground that duration noted by the expert in his report was two minutes and 16 seconds was at variance with the duration of 49 seconds noted in the call records. The High Court laboured under the mistaken impression that the duration was 2 minutes and 16 seconds which was the duration of conversation between Gilani and his brother. Even then there is some discrepancy (between 49 and 74 seconds which according to PW48 was approximate) but no question was put to PW 48 in this regard nor any suggestion was put to PW 48 that the voice was not the same. If any such challenge was made the trial Court would have heard the conversation from the tape and noted the duration.”

In Vikram Singh v. State of Punjab, (2017) 8 SCC 518, a three-Judge Bench of our Apex Court held as under:

• “23. …… The conversation on the landline phone of the complainant situate in a shop was recorded by the complainant. The same cassette containing conversation by which ransom call was made on the landline phone was handed over by the complainant in original to the Police. This Court in its judgment dated 25.01.2010 has referred to the aforesaid fact and has noted the said fact to the following effect:
  • “The cassette on which the conversations had been recorded on the landline was handed over by Ravi Verma to S.I. Jiwan Kumar and on a replay of the tape, the conversation was clearly audible and was heard by the Police.”
• 24. The tape recorded conversation was not secondary evidence which required certificate under Sec 65B, since it was the original cassette by which ransom call was tape-recorded, there cannot be any dispute that for admission of secondary evidence of electronic record a certificate as contemplated by Sec 65B is a mandatory condition.”

Admissibility of Digital Evidence

In Vaman Narain Ghiya Vs. State of Rajasthan 2014-1 Raj Cri C 31 it is observed, with regard to digital evidence, as under:

• Digital photographs exist as digital data. Unlike conventional photographs, no film or paper are employed in their capture or storage. The image is captured and stored in the ”disk drive” or ”the chip”. Although digital photographs may ultimately be displayed in a printed form, it is not necessary to do so – they can just be easily displayed on a monitor screen or, there never need be an analogue representation of the scene or image. Digital photography uses an array of electronic photo-detectors to capture the image focused by the lens, as opposed to an exposure on photographic film. The captured image is then digitised and stored as a computer file ready for digital processing, viewing, digital publishing, or printing. Until the advent of such technology, photographs were made by exposing light sensitive photographic film, and used chemical photographic processing to develop and stabilise the image. By contrast, digital photographs can be displayed, printed, stored, manipulated, transmitted, and archived using digital and computer techniques, without chemical processing.
• While digital photography has many advantages over the conventional photography, one of the disadvantages it has is the risk of tampering with the image. Unlike conventional photograph which was hard to tamper with, the easy availability of software permit manipulation of images. This raises questions about the relevance, the admissibility and the authentication of digital photography. Section 65B of the Evidence Act deals with admissibility and authenticity of electronic records. This new provision was inserted in the Evidence Act in the year 2000. Since it is a new provision, not much case law has emerged with regard to the said provision.”

Admissibility of CDs

The Speaker of the Haryana Vidhan Sabha disqualified six Members of the Vidhan Sabha for ‘defection’. When the matter was placed before the Apex Court, in Jagjit Singh  Vs. State of Haryana, 2006 (11) SCC 1, the Court had to consider the legality of the consideration of CDs by the Speaker in taking the impugned decision. The Speaker found that the CDs of the interview produced by Zee News and Haryana News (Punjab Today Television Channel) “corroborated” the documentary evidence as to ‘defection’. Supreme Court found no infirmity in the action of the speaker.  

In Paras Jain v. State of Rajasthan, (2016) 2 RLW 945 (Raj), it is pointed out that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied.

Admissibility and Presumption as to E-mails

Evidence Act allows to present e-mails by a print on a paper or copied in a CD or Pen-drive.

• According to Sec. 3 of the Evidence Act, ‘Evidence’ means and includes: … all documents including electronic records …..
• According to the Illustration of Sec. 3 of the Evidence Act, ‘Words printed, lithographed or photographed are documents‘
• Sec. 65B states that ‘computer output’ is 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 (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 of any contents of the original or of any fact stated therein or which direct evidence would be admissible.

It must also be noted that Sec. 3 and 65B of the Evidence Act refer to mode of presentation of the e-mail; and not its relevancy or proof.

Section 88A of the Evidence Act reads as under:

• “88A. Presumption as to electronic messages.—The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.
• Explanation.—For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.”

Analysing Section 88A of the Evidence Act and the relevant provisions of the Information and Technology Act, it is observed in Abdul Rahaman Kunji vs The State Of West Bengal, 2016 CriLJ 1159 (Cal), that the e-mails were admissible in evidence. The court acted upon the presumption under Sec. 88A.  It was found that the e-mails were proved and that the accused/appellant was the originator of the e-mails and that he had participated in the crime of abduction in equal measure as the others. It was observed as under:

• “It is apparent that the Court may presume the veracity of the message fed into the computer for transmission by the originator through his mail server to an addressee, that is, the person who is intended by the originator to receive the electronic record and does not include any intermediary. However, this is a rebuttable presumption. Besides, no presumption can be drawn about the person who has sent such a message. Therefore, even if we accept the fact that these e-mails have been downloaded as stated by the Webel expert or sent by using the e-mail address of Akib Ali, it was necessary for the prosecution to prove that Akib Ali was in fact the originator of these e-mails. The disclosure, if any, made by Akib Ali of the e-mail address and password would have to be made under Sec. 27 of the Evidence Act. PWs 118 and 132 have both stated that Akib Ali has disclosed his e-mail identities and passwords in their presence. They have signed the seizure list under which the e- mails accessed from these accounts and printed have been seized. Therefore, in our opinion, these e-mails are admissible in evidence.”

It was also pointed out by the High Court that besides denying everything in the statement recorded under section 313 CrPC, the accused has not given any specific explanation about his e-mail accounts and passwords or about the contents of the e-mails.

CCTV Footage is a strong piece of evidence

CCTV Footage is also admissible in evidence under Sec. 3 and 65B of the Evidence Act. For admitting this type of evidence also the requirements under Section 65B are to be satisfied. In Tomaso Bruno Vs. State of Uttar Pradesh, (2015-7 SCC 178), it is observed:

“CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone —- best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

The facts of the case: Three Italian nationals namely Tomaso Bruno (Accused No.1), Elisa Betta Bon Compagni (Accused No. 2) and Francesco Montis (Deceased) came as tourists to India. They arrived at Varanasi and they checked in at Hotel Buddha. On 4.2.2010 at about 8.00 a.m. A-2 informed the Manager of the hotel that the condition of the deceased was not fine. All took the deceased to a Hospital at Varanasi, where the doctors declared the ailing tourist as ‘brought dead’. In post mortem autopsy the cause of death was asphyxia due to strangulation.

Cross examination of witnesses with CD images playing it in Court

In State of Gujarat v. Shailendra Kamalkishor Pande, 2008 CriLJ 953 (Gujrat), the witnesses were cross examined, from the side of the accused playing the CD, under Sec. 153 and 155 of the Evidence Act. The High Court observed that the trial Court had committed serious error in not considering the fact that the CD had not been prepared and preserved safely by an independent authority like police, but the same has been produced by the accused persons; and the matter was remanded to consider the authenticity of the CD.

The Delhi High Court, in Ram Singh v. State (NCT) of Delhi (2013), followed State of Gujarat v. Shailendra Kamalkishor Pande, 2008 CriLJ 953 (Gujrat), and observed that a previous statement in the video CD could be used under Section 145 Indian Evidence Act (to impeach credit of a witness under Section 155). The court referred to the Punjab High Court decision in Rup Chand v. Mahabir Prasad, AIR 1956 Punj. 173; and a judgment of the Supreme Court in S. Pratap Singh v. State of Punjab AIR 1964 SC 72 (the Supreme Court had held that the previous statement made by a person recorded on tape could be used not only to corroborate the evidence given by the witness in Court but also to contradict his evidence given before the Court as well as to test veracity of the witness and also to impeach his impartiality.) See also: Ram Singh v. Col. Ram Singh, AIR 1986 SC 3.

It was also pointed out by the Delhi High Court (Ram Singh v. State (NCT) of Delhi) that, in R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157) that the Supreme Court had observed that tape recorded version was admissible provided that the conversation was relevant to the matter in issue and its genuineness is proved by the person who seeks to rely on the same.

Mere marking– not dispense with proof (of truth of contents)

In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of a documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta Vs. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses does not prove contents of a document.

In Kaliya Vs. State of Madhya Pradesh (2013-10 SCC 758) it is held as under:

• “Mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission Vs. The State, AIR 1966 SC 1457; Marwari Khumhar Vs. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder Vs. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai Vs. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India  Vs. Rampal Singh Bisen,2010-4 SCC 491).”
• “The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
• [Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

IF the TRUTH is IN ISSUE mere proof of handwriting or execution not evidence of truth:   IF the TRUTH of the facts stated in a document is IN ISSUE mere proof of the hand-writing and execution of the document would not furnish evidence of the truth of the facts or contents of the document.

In Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, it us held as under:

• “If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (See: Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88,  2012(1) CTC 53; 2013-1 KLT 293.)

• See Blog: EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

Probative Value and Standard of Proof of Visual and Voice Evidence

Degree or probative value of visual and voice evidence depends upon the facts and circumstances of each case. The method adopted may be the ‘pictorial testimony theory’ or the ‘silent theory’.  In both cases, one fact is absolutely essential: that is, it should be established that they are authenticated and accurate.

In Mahabir Prasad Verma v. Dr. Surinder Kaul, AIR 1982 SC 1043 (See also: Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3), it is laid down that tape-recorded evidence can only be used as a piece of corroboration (not substantive evidence). It is held as under

• “22…. Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the tape-recorded conversation could be no proper evidence.”

In Tukaram S. Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329, the Respondent won the election as a Shiv Sena — BJP alliance candidate. A Cassette was produced as true reproduction of the original speeches by the respondent or his agent.

It is held that the video/audio cassette is admissible.  But, appellant has failed to properly identify and prove voices recorded and the corrupt practices (communal and racial speeches) by that Cassette. It is observed in this decision as under:

• “23. The second issue, in our opinion, is of greater importance than the first one. It is well settled that tape-records of speeches are “documents” as defined in Section 3 of the Evidence Act and stand on no different footing than photographs. (See: Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17).  There is also no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first-hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence.  At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.”

Voice Identification Is More Difficult Than Visual

In Nilesh Dinkar Paradkar v. State of Maharashtra, (2011)4 SCC 143 it was held as under:

• “31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.”

In Nilesh Dinkar Paradkar v. State of Maharashtra it is further observed that Chapter 14 of Archbold Criminal Pleading, Evidence and Practice discusses the law in England with regard to evidence of identification. It is pointed out that Section 1 of this Chapter deals with visual identification and Section 2 relates to voice identification and that it is emphasised that voice identification is more difficult than visual identification. Therefore, the precautions to be observed should be even more stringent than the precautions which ought to be taken in relation to visual identification. Speaking of lay listeners (including police officers), it enumerates the factors which would be relevant to judge the ability of such lay listener to correctly identify the voices. The Apex Court pointed out that these factors include:

• “(a) the quality of the recording of the disputed voice,
• (b) the gap in time between the listener hearing the known voice and his attempt to recognise the disputed voice,
• (c) the ability of the individual to identify voices in general(research showing that this varies from person to person),
• (d) the nature and duration of the speech which is sought to be identified, and(e) the familiarity of the listener with the known voice; and even a confident recognition of a familiar voice by a way listener may nevertheless be wrong.”

The Court of Appeal in England in R. v. Chenia and R. v. Flynn has reiterated the minimum safeguards which are required to be observed before a court can place any reliance on the voice identification evidence, as follows:

• (a) the voice recognition exercise should be carried out by someone other than the officer investigating the offence;
• (b) proper records should be kept of the amount of time spent in contact with the suspect by any officer giving voice recognition evidence, of the date and time spent by any such officer in compiling any transcript of a covert recording, and of any annotations on a transcript made by a listening officer as to his views as to the identity of a speaker; and
• (c) any officer attempting a voice recognition exercise should not be provided with a transcript bearing the annotations of any other officer.

Conditions for Accepting Audio and Video Evidence

In Ram Singh v. Col. Ram Singh AIR 1986 SC 3, the Apex Court stated some of the conditions necessary for admissibility of tape-recorded statements, as under:

• (1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker.  Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
• (2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence – direct or circumstantial.
• (3) Every possibility of tampering with or erasure of a part of a tape -recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
• (4) The statement must be relevant according to the rules of the Evidence Act.
• (5) The recorded cassette must be carefully sealed and kept in safe or official custody.
• (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

In Ram Singh case the Apex Court approved the observations made by the Court of Appeal in England in R. v. Maqsud Ali where, Marshall, J. observed as under:( QB p.701 C -F)

• “…We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court 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 and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence.  Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.  There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.

In Ram Singh case, the Supreme Court approved judgment in R. v. Robson, where Shaw, J. of the Central Criminal Court observed as under: ( Robson case 6,WLR p.653 F -G)

• “…The determination of the question is rendered the more difficult because tape recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts.”

In Nilesh Dinkar Paradkar v. State of Maharashtra, (2011)4 SCC 143 it is also observed that in America, similar safeguards have been evolved through a series of judgments of different courts. The principles evolved have been summed up in American Jurisprudence 2d (Vol.29) in regard to the admissibility of tape-recorded statements, which are stated as under:

• “The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows:
• (1) a showing that the recording device was capable of taking testimony;
• (2) a showing that the operator of the device was competent;
• (3) establishment of the authenticity and correctness of the re -cording;
• (4) a showing that changes, additions, or deletions have not been made;
• (5) a showing of the manner of the preservation of the recording;
• (6) identification of the speakers; and
• (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.
• However, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said.”

Who can sign the Certificate under Sec. 65B ?

Sec. 65B(4) answers it. It can ‘be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate)’.

Time of furnishing Certificate under Sec. 65B

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020-3 SCC 216, answers it with respect to both civil and criminal cases. It is observed as under:

“50. We may hasten to add that  Sec. 65B does not speak of the stage at which such certificate must be furnished to the Court. …… This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. ..

53. In a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretised its case against an accused before commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacunae during a trial. …..

54. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A  balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sec. 91 or 311 of the Cr.P.C. or Sec. 165 of the Evidence Act.

55. Depending on the facts of each case, and the Court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case – discretion to be exercised by the Court in accordance with law.”

Relevancy, Admissibility and Probative Value of Documents

Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Generally speaking, all relevant documents are admissible. But, various provisions of the Evidence Act, Civil and Criminal Procedure Codes, Stamp Act, Registration Act etc. stipulate various formalities or regulations for tendering documents in evidence.

Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine. In State of Bihar Vs. 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.”

Admission of Copy of Electronic Evidence (Sec. 65A & 65B of the Evid. Act)   

Sec. 65A of the Evidence Act reads: “The contents of electronic records may be proved in accordance with the provisions of section 65B”. 

Sec. 65B states that ‘computer output’ is an ‘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.

Section 65B further declares that the ‘computer output’ (derived from original):

• ‘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’.
• ‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’. [Sec. 65B 5(c). ]

Read Blog: ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B

Sec. 65B enables to admit CONTENTS of electronic records without original

Sec. 65A and 65B pertain to admission of the CONTENTS of electronic records. Sec. 65B enables a party to a suit to prove 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), without further proof or production of the original, as evidence of any contents of the original (notwithstanding anything contained in the Evidence Act).

Admissibility and Presumption as to correctness of Computer Output

Sec. 65B declares and expressly lays down that computer output (copy or print)

• (i) 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
• (ii) shall be admissible in any proceedings, without further proof or production of the original, as evidence
  • of any contents of the original or
  • of any fact stated therein of which direct evidence would be admissible.

If the conditions mentioned in this Section Sec. 65B(2) are satisfied, by necessary implication, it will bring a presumption under Sec. 114 with respect to regularity of the computer output . Because, admissibility of ‘any fact stated therein‘ ‘without further proof’ is nothing but ‘presumption’ of its regularity and correctness. The net result is that (if the conditions in Sec. 65B(2) are satisfied) the burden to prove otherwise is cast on the person who opposes it.

The requirement in Sec. 65B(2) as to ‘proof’ (through witnesses or certificate) for ‘regularity‘ of feeding information into the computer in the ‘ordinary course‘ eloquently support this proposition.

• Note:
  • (i) ‘Statements’ alone can be proved by ‘certificate’ under Sec. 65B(4); other ‘information’ are to be proved by proper evidence.
  • (ii) Presumption of ‘regularity’ under Sec. 114 Evd. Act can be applied in Sec. 65B.
  • (iii) Presumption of a ‘fact or regularity’ under Sec. 114 Evd. Act is, essentially presumption of ‘Truth’ and ‘Correctness’.

Presumption of Fact Means Truth/Correctness of Fact

St. of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex Court as under:

• “Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

A combined reading of Section 65A and 65B will show:

• (i) ‘electronic record’ is primary evidence (original) and ‘computer output’  is derived-from-original (secondary evidence);
• (ii) Certificate under Section 65B(4) is required only for proving ‘computer output’ (derived from original)  and not for proving an ‘Electronic Record'(original); and
• (iii) Sec. 65B enables a litigant to prove computer output (derived from original) without without further proof or production of ‘electronic record’ (original) if the conditions laid down in Sec. 65B are fulfilled.
• There is presumption as to correctness of the computer output, under Sec. 65B 5(c), as it reads ‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.
• The enabling provision, Sec. 65B of the Evidence Act does not stand as a bar for proving a secondary evidence of the ‘electronic record’ (original – primary evidence), under Sec. 65 of the Evidence Act.

Because:

1. Sec. 65A is an introductory provision to Sec. 65B.
2. Sec. 65A does not control Sec. 65B;
3. Sec. 65A directs only a method to PROVE (not the only one method) the CONTENTS of electronic records –  by print/copy – invoking Sec. 65B..
4. Sec. 65B deals with ‘admissibility’ of ‘computer output’ (derived from original) alone; and not with respect to ‘electronic record’  (original) as such;
5. ‘Computer output’ (derived from original) stands akin to secondary evidence – because it is (Sec. 65B) an ‘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 and it is stated – ‘Computer output’  “shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible”.

It is also noteworthy that the ambiguity as to whether electronic-records are also ‘documents’ is already removed by the amendment to Sec. 3 Evd. Act (‘Evidence’ means and includes … .. all documents including electronic records’).  ‘Electronic records’ (original) being already declared as ‘documents’ (Sec. 3), Sec. 65B (1) needed to declare ‘computer output’ (derived from original) alone as (deemed) documents.

‘Electronic Record‘ is the ‘hard-disc’ of the computer or a chip or a memory-card

Section 2(1)(t) of the Information Technology Act, 2000 defines an ‘electronic record’ as under:

• “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;

Technically, the ‘electronic record’ will be the data or other material in an electronic form, so also the microfilm, the computer-generated microfiche, etc. attached, or attachable, to a computer, or other electronic equipment.

‘Hard-disc’, CD, DVD, Pen-drive etc. can be an (original) ‘Electronic Record’. In the Evidence Act, ‘electronic record’ is perceived as the ‘original’ data, record, etc. that are put in or stored. On that basis, casually saying, the ‘hard-disc’ of the computer is an ‘electronic record’; and it can also be an external hard-disc, CD, DVD or a chip or a memory-card or a pen-drive to which the ‘information’ is directly fed into – using a computer, a video camera, mobile phone, etc. [State of Gujarat vs Shailendra Kamalkishor Pande: 2008 CriLJ 953 (Gujrat) ].   It must have been self-generated without any human intervention. [Kishan Tripathi @ Kishan Painter vs. The State (2016) 2 DLT (Cri) 666)]. Thus e-mails, telephonic recordings, CCTV footage, video recordings in CD, DVD, etc. can be ‘electronic record’ in law; and they can be proved in a court of law.

‘Computer output’ can be got produced by ‘any computer‘

A ‘Computer Output’ that is copied in optical or magnetic media, can also be got copied by ‘any computer’ other than the computer that was “used regularly to store or process information”. It is clear from the phrase “a computer” in Sec. 65B(1) and 65B(5)(c) – contradistinct to “the computer” in Sec. 65B(2).

Why and How Sec. 65 B is an Enabling Provision

A Certificate under Section 65 B(4) is required for proving ‘computer output’ (secondary evidence) alone; and not for all ‘Electronic Records’. As stated earlier, it is held in Vikram Singh v. State of Punjab, (2017) 8 SCC 518, by a three-Judge Bench of our Apex Court as under:

• “24. The tape recorded conversation was not secondary evidence which required certificate under Sec 65B, since it was the original cassette by which ransom call was tape-recorded, there cannot be any dispute that for admission of secondary evidence of electronic record a certificate as contemplated by Sec 65B is a mandatory condition.”

The above passage is quoted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020-3 SCC 216.

As pointed out by our Apex Court in various decisions including M. Chandra Vs. M. Thangamuthu, (2010) 9 SCC 712, production of primary document is the rule; the secondary evidence would be admissible only in exceptional cases; and to admit secondary evidence, (i) there should be authenticated foundational evidence that the alleged copy is in fact a true copy of the original and (ii) the party concerned was genuinely unable to produce the original.

From the above, it is definite that that the new enabling provisions (Sec. 65A and 65B) are introduced to confer a right to a party who wishes to rely upon the contents of an electronic record to adduce evidence of the same by ‘computer output’ (derived from original), adopting the procedure/drill given in Sec. 65B ‘without further proof or production of the original’; that is, without accounting for (original) electronic record. It would appear that the Non-obstante clause is not to exclude Sec. 62 to 65. Because, on a combined reading of Section 65A and 65B it would appear that these provisions deal with evidence ‘derived from original’ (computer output) alone; and not about original. Sec. 65B speaks: ‘Notwithstanding anything contained in the Act .. .. the computer output shall be deemed to be also a document’ (if the conditions laid down are fulfilled).

Authoritative Decision in Arjun Panditrao on Electronic Evidence Holds the field

In view of the authoritative decision of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020-3 SCC 216 (concerning the video recording as to fix the time of filing nomination paper), the following principles hold the field:

1. Because of the non-obstante clause in sub-section (1) of Sec. 65B, for ‘admissibility and proof’ as to the information contained  in a ‘computer output’, the drill of Sec. 65B, must be followed (by producing the certificate provided for in Sec. 65B) and no other method is acceptable, since Sec. 65B is a special provision and Sections 62 to 65 are irrelevant for this purpose.
2. If the authority concerned does not issue Certificate, the Court may order the production of the Certificate.
3. The Certificate has to be produced at the time of filing of document. However, if it could not be produced at that stage, it may be permitted to be produced later; provided such later production of certificate would not prejudice the accused.

[1] Sec. 65A and 65B reads of the Evidence Act reads:  

Sec. 65A: Special provisions as to evidence relating to electronic record.

The contents of electronic records may be proved in accordance with the provisions of section 65B. 

65B. Admissibility of electronic records–

1. Notwithstanding anything contained in this Act, 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 (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 of any contents of the original or of any fact stated therein or which direct evidence would be admissible.
2. The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely :-
   • (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
   • (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
   • (c) throughout the materiel part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
   • (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
3. Where over any period, the functions of storing or processing information for the purposes of any activities of any regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computer, whether-
   • (a) by a combination of computers operating over that period; or
   • (b) by different computers operating in succession over that period; or
   • (c)by different combinations of computers operating in succession over that period; or
   • (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
4. In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
   • (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
   • (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
   • (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate)
     • shall be evidence of any matter stated in the certificate; and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
5. For the purposes of this section,-
   • (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
   • (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
   • (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process.

[2] Santhosh Madhavan @ Swami Amritha Chaithanya v. State (2014 KHC 31)

[3] P. Gopalakrishnan @ Dileep Vs. State Of Kerala: KERLT 2018 4 1159, KERLJ 2018 4 189, KHC 2018 4 437

[4] P. Gopalakrishnan @ Dileep Vs. State Of Kerala: KERLT 2018 4 1159, KERLJ 2018 4 189, KHC 2018 4 437

[5] Lyell v. Kennedy (No.3) (1884) 50 L.T. 730

[6] State of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053

[7] State 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

[8] Tukaram S.Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329

[9] P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1; tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31; Grand v. Southwestern and County Properties Ltd. (1975)Ch.185, (1974)2 All.E.R. 465; Rex v. Daye : (1908)2 K.B. 333, 340; Ziyauddin Burhanuddin Bukhari v. Brij Mohan Ramdas Mehra:  (1976) 2 SCC 17.  

[10] Senior v. Holdsworth, Ex parte Independant Television New Ltd. (1976) Q.B. 23)

[11] Rex v. Daye ((1908)2 K.B. 333, 340)

[12] North West Airlines v. Union of India 2007 (214) ELT 178 (Bom.)

[13] Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31

[14] Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31

[15] Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31

[16] Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31

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