For
the Admissibility of electronic evidence, it must satisfy the same rules as
required for traditional documentary evidence to be admitted into evidence as
laid down by Indian Evidence Act. But most of electronic evidence is
intangible, invisible so some help/aid from technical person/Knowledge
may be required to ascertain the fact which is to be proved. The section 3 for
, “Document” and “Proved” reflects that, the principles of Indian Evidence Act
are not changed in any way to prove the electronic documents. Being Jorgan
(technical Words) in the Information Technology Act , some may feel that, it is
difficult law to understand. In this article an attempt is made to
compare traditional method with the digital document/evidence. It is not
exhaustive but some material points are discussed in question /answer forms.
1.
How e-mail has to be prove ? How printed copy of e-mail has to be proved ?How
e-mail has to be proved without 65(B) Certificate ?
Answer(
not exhaustive) :-E-mail
means electronic mail. Section 88, 88A, 114(f) of the Evidence Act with
section 26 of the General Clause Act are relevant sections for sending and
receipt of e-mail and its proof. Firstly see, whether email copy is
original print out from computer or it is a copy of print out. In fact, the
requirement of originality for paper document is applied differently in email
evidence. If data are stored in a computer or similar device, any printout
readable by sight, shown to reflect the data accurately, is deemed as
“original”. To admit emails into evidence, the proponent must show the origin
and integrity of emails. He must show who or what originated the email and
whether the content is complete in the form intended, free from error or
fabrication. In discovery, the proponent needs to prove that the hard copy of
the email evidence is consistent with the one in the computer and includes all
the information held in the electronic document.
Next
stage follows that before admissibility the document has to meet the
requirements of authentication or identification. This is a process of
verification that establishes that the document is what it purports to be. I.e.
that the email was made by the author indicated therein and is unaltered except
for the change in the document generated automatically such as adding the date
and time in case of email and address. The burden is on the person adducing the
data message to prove its authenticity by adducing relevant evidence therefore
that the document is what it purports to be. Where best evidence is the
evidence required, the rule of best evidence is fulfilled upon proof of the
authenticity of the electronic records system in or by which the data was
recorded or stored. In assessing the evidential weight the court shall
have regard to the reliability of the manner in which the data message was
generated, stored or communicated; the reliability of the manner in which the
authenticity of the data message was maintained; the manner in which the
originator of the data message or electronic record was identified; and any
other relevant factor.
The
authenticity of the electronic records system such as a computer is presumed in
the absence of any evidence to the contrary where there is evidence that the
system was operating properly. Where the record is stored by a party adverse to
the production of the email or data message; evidence is led that the record
was stored in the usual and ordinary course of business by a party who is not a
party to the suit. The Act specifically provides that it does not modify the
statutory or common law rules for the admissibility of evidence. For
admissibility of electronic records, specific criteria have been made in the
Indian Evidence Act to satisfy the prime condition of authenticity or
reliability which may be strengthened by means of new techniques of security
being introduced by advancing technologies. It also requires A] Integrity
of the data. B] Integrity of the hardware/software c] Security of the system.
Each
user on the Internet has a unique address in the format – username @ domain
name eg. sanjaysalkute@gmail.com. This address helps you in identifying a user
to whom you wish to send e-mail. The sender composes the mail message using his
mail client software eg. Netscape mail, outlook express, Eudora,Pin etc.
Important
points to be remember while hearing to the matter :-Email can be
send by computer, mobile, tab etc. If it is send by mobile phone then
said handset has to be seized. Deleted etc. data has to be recovered. Location
from where it was sent has to be ascertain. Web URLs/Content, Images/Video has
to ascertain .
1. Ownership and possession – Identify the individuals who created
, modified, or accessed a file, and the ownership and possession of questioned
data by placing the subject with the device at a particular time and date,
locating files of interest in non-default locations, recovering passwords that
indicate possession or ownership, and identifying contents of files that are
specific to a user.
2. Application and file analysis – Identify information
relevant to the investigation by examining file content, correlating files to
installed applications, identifying relationships between files (e.g., e-mail
files to e-mail attachments), determining the significance of unknown file
types, examining system configuration settings, and examining file metadata
(e.g., documents containing authorship identification).
3. Time frame analysis – Determine when events occurred on
the system to associate usage with an individual by reviewing any logs present
and the date/time stamps in the file system, such as the last modified time.
Besides call logs, the date/time and content of messages and e-mail can prove
useful. Such data can also be corroborated with billing and
subscriber records kept by the service provider .
4. Data hiding analysis – Detect and recover hidden data that
may indicate knowledge, ownership, or intent by correlating file headers to
file extensions to show intentional obfuscation; gaining access to
password-protected, encrypted, and compressed files. The problem of
hacking or virues destroying the emails has not been dealt with in India .The
onus is to decide what part of the series of letters (emails) is
necessary. This is not as equitable way as both parties might separately
have important information which supports their cause. In such situation,
it would be best to allow both parties to choose their relevant parts
separately and then ask the court to look into the relevance of
submissions. This way the court will not miss out on any revelation
that might be made by the parties in either case, and will be able to meet the
stated purpose of the section i.e. to grasp the full understanding of the
nature and effect of the statement, and of the circumstances under which it was
made.
Points
to consider for Proof: For email evidence, the burden of proof lies with the party
who wishes to employ an email record as evidence of an electronic transaction
and therefore such records must be in a court admissible . This will require
independent verification of the components mathematically:-
E-mails
are composed of a “header” and “body”.While the body of the email contains the
individual text composed by the sender, the header listing the sender’s name
and address, the recipient’s user name and address, the transmission date and
time and the subject matter of the mailing. If email is produced by a party
from the party’s files and on its face purports to have been sent by that
party, these circumstances alone may suffice to establish authenticity.
Authentication should be made through a knowledgeable witness who can identify
the authorship as well as the documents appearance, contents, substance,
internal patterns, or other distinctive characteristics. Given that most emails
contained certain identifying markers, such as the address from which they were
sent, the name of the sender, or the company name, that information, coupled
with their production during discovery, should be enough to satisfy the
authentication requirements.
§ The original message content and all
attachments
§ The uniform time (not the sender’s desktop
computer time) of transmission (sending and receipt) of the message .
§ The underlying transmission meta data that
for court purposes serves as the recorded digital snap shot of both servers’
sender and recipient.
§ Collection transaction data that under
terms of electronic law .
§ The email must of course be dispatched to
what is, in fact the email address of the intended recipient.
Some
Questions to be answer before proof the document:
1.
What
is email client Software ?
2.
What
Hardware was used to send/receive email ? e.g computer, Tab, Mobile
etc.
3.
When
event occurred on system? There should be Uniform time of transmission of
the message (when send when received).
4.
Who
was running system ?
5.
Who
was present at the time of sending ?
6.
What
is details of call logs of account, date, time and type of
file system, last modified time, contents of messages, billing of subscriber
record kept by the service provider ?
7.
What
part of the series of emails are necessary to prove the fact?
Address proof :-
Civil:-both parties have to produce emails received during the said
period.
Burden of proof :-
Who wishes to employ an email record as evidence.
It requires independent verifications- Email header-body. Authentication may be
made from the witness who identify the authorship of
account/address, documents,
contents, substance.
Attachment files :-
contents and attachment has to be proved.
8.
What are special precautions to prove email in case of crime?
Crime :-If
email send through computer then identify the file content,
correlated files, relations between files,unknown files and
its relations, examine the system, meta date
(documents
containing authorship and identification recorded digital snap shot of both
server’s sender and recipient). Detect and
recover hidden data which shows ownership,
compressed files.
If
mails send by mobile then handset has to be seized with Sim card, to
detect, deleted files has to be recovered,
Location from where it was sent, Web/URL/contents, Images, video etc.
Ownership, possessor of mobile at
particular time, date place, recovery of password, identify
the contents of
mobile data connected with the user and cause of action.
9.What
is procedure if the integrity is challenged ?
If
integrity of the contents or time of receipt
is challenged then record must
sent to expert.
10.How
to prove admissibility of email ?
All
sections which are given in Indian Evidence Act for Documentary Evidence are
applicable . Whether
print out is original or copy? To prove original it is necessary to prove
origin and integrity, show that who and what
originated the mail, whether contents are
complete, free from error or fabricated. In discovery the hard copy of
mail is consistent with in the computer and includes all information
held in the document. It is necessary to prove
that, it was unaltered except the change in the
document generated automatically such as
adding the
date, time. It is necessary to prove the authenticity of the electronic records
system or by which the data recorded or stores. The
reliability of the manner in which the
date message was generated, stores or communicated, the reliability of
the manner in which
the authenticity of the date message was maintained, the manner in which the
originator of the data message or relevant
record was identified, and other relevant factors. Print out of
email is admissible without actually filing the
original soft copy.
11.
How to prove that, system was properly working ?
Show
that the system was working properly, the evidence is necessary to show that,
record was stores in the
usual and ordinary course of business by a party (provider) who is not party
to the
case. If some one challenges the accuracy of the computer evidence or
electronic evidence or interpolation then
he must prove the same beyond reasonable doubt.
12.What
is protected method to send email ? For security send email by digital
signature which is
followed by sms or phone about key/signature.
Relevant
Case laws :-
–Ark
Shipping Co. Ltd. – Vrs- Grt Ship Management Pvt. Ltd reported in 2008(1) ARBLR
317 (Model Affidavit Section 65B)
-
State- Vrs-Navjot Sandhu 2005 (11) SCC 600 (certificate under section 65B not
necessary)
-
State of Delhi – Vrs—Mohd Afzal and others 2003(3) 11 JCC 1669
-
Commissioner of Customs Mumbai—Vrs—Ridhi Sidhi Furniture Fitting Co.2002 (144)
ELT 444 (Name of sender of the email was blocked in copies supplied to the
importer and the address of the person sending the quotation was not known as
well)
-
Capt O.P Molhotra and another –Vrs– The State of Haryana decided on 5-11-2012
Punjab Haryana High Court.
E-mail/Electronic
Document Proof ? (Part-II)
( In continuation of previous article (tips) to prove electronic
document . Following are material points to prove other documents also(
not exhaustive). Both articles are for Legal Literacy , to those
who have little concern with the electronic documents proof and do not know
method to produce in court of law)
Face Book ( points to
prove)
Nature of Facebook
:- Registered user creates
profile. You can upload photos, video, send message, keep in touch
with friends, has public features like Groups, events, pages. It
has Wall, Virtual Photo Album. It allows friends to comment on each
other, may broadcast announcement. It offers a range of privacy, Message
Box is for private use. It has facility to hide or disclose our
profile from particular friend or friends . But, before making friend
make sure about the requested of the friend. Wall is the area on page or
profile where friends and fans can post their thoughts, views or criticisms for
everyone to see.
Prove :- It should be authenticated data like other
electronic message proof. For which there should be research of friends
correct details, web page print, URL list (available at about us). In
fact many people do not use their real name in such case trace out
the real name by email address.
Admissibility : most of contents of face book are public domain.
Content of profile is not private. Access to the contents of third person
is legitimate and there no infringement of privacy.
CD, DVD, microchip etc.(
points to prove )
1.
Who recorded it ? There
should be certificate as per Information Technology Act.
2.
Affidavit from the
person who recorded it.
3.
Copy of the CD has
to be given to other side (who will defend ).
4.
If CD prepared
from tape recorder then it is secondary evidence and can be proved by producing
original tape. It is necessary to prove by which device it was
prepared.
5.
Court may
determine the voice recorded were of the person taking action.
6.
It has to play in
the court.
7.
Evidence has to be
considered for admissibility, recording of evidence and appreciation of
evidence.
8.
It should be
produced from proper custody. Source and manner of acquiring the
CD and authenticity of
contents has to be proved.
1.
Person who has occasion
to hear the voice has to be examined.
1.
Voice has to be
identified and accuracy of the recording has to be proved and
possibility of erasing
conversion, correctness, authenticity etc has to be considered.
1.
Other party has to give
full opportunity to test the genuineness of the conversion.
2.
The conversion
should be relevant, identification of the person has to be made by
or through witness any
other person who was present at the time of
recording and if other
side denies then may identified through expert from forensic
science.
1.
May asked to other side
to admit or deny the voice, picture etc.
2.
Burden is prove
that it is not tampered and it is accurate.
3.
It can be used in
cross examination of witness.
4.
Application can be
moved to take sample voice of the party to send for forensic.
In forensic science, the
time, frequency and intensity of speech sound waves which
forms graphs has to be
compared with the disputed sound by Spectrograph machine.
For CD the forensic
report certificates whether there is tampering or editing and
gives quality of sound,
audio video may be required.
17. In video CD the
picture quality, light, audio etc., persons can be identified from it.
In criminal case it
requires sealing of CD etc to keep it in safe custody so as to play before the
court at the time of trail.
Relevant Case laws :-
Jagjit Singh –vrs—State
of Haryana 2006(11) SCC1
Mrs. Havovi Kersi
Sethna—vrs—Mr.Kesri Gustad
Sethand by Bombay High
court in Civil Suit No.16 of 2008
Pootholi Damodaran
Nair—Vrs–Babu V.K.2005 (2) ILR 145 Kerla High Court.
A.
Soundararajan—vrs—P.Thangavel Madras High Court 24 November 2008.
% Reserved on 25th May
2012—vrs–State Delhi High Court dated 17 July 2012.
SMS (Short Message
Service) ( points to prove)
1.
From which mobile/device, it was send ?
2.
Phone call/sms records has to be proved.
3.
The service provider has to establish the call and sms record. IME (15 digit
number
-first six are approval
of handset, next two for model of handset, next six serial
number of handset
but in GSM last number is ZERO) number with calling by SIM (depend
upon policy of government)
4.
From whom it was seized, who possess it and who was using it.
5.
If message are in mobile then print out text.
6.
Communication with the persons with the mobile may be relevant.
7.
For SIM , whom it was activated, plan pre or post paid.
8.
Summary statement and call history from the service provider for SIM.
1.
If number is called on
land line then whether caller ID facility is there. There
should be evidence from the service
provider about providing caller ID.
2.
In a trial computer
generated bill does not require certificate under section 65B.
Relevant Case laws:-
Pravin Mahajan Case, generally court have not required direct evidence that the
defendant entered the information into the computer or electronic device but
the court have required circumstantial evidence. Admitted print out of
test message information that only the sender would know (for example the
recipient’s nickname or details of a recent interaction between the sender and
recipient). Other circumstances include subsequent actions by the sender
consistent with the electronic writing.
–Dheeraj Singh
—vrs—State 2005(83) DRJ 255
–Kum. Shubha @
Shubhashankar—vrs–State of Kernataka 4th November 2010 (Kernataka
High Court)
–Vadafone Essar
Ltd—vrs–Raju Sud, Bopmbay High Court dated 22nd November, 2011.
Contents of Mobile
Conversion
Relevant Case law:-
State (NCT of
Delhi)–Vrs–Navjot Sandhu AIR 2005 SC 3820:-
call records have to be proved. Print out from service provider is
required.
CCTV(Closed circuit
Television):-(points to prove)
1.
Identification of person, location, disclosure of data, to verify existence of
relevant data.
2.
It should not be edited, tampered etc.
3.
The instrument has to be proved, if converted into VCD then said fact has to be
proved. Affidavit
of person who is incharge of CCTV
Relevant case law:-
–G. Shiril Saroj and
others—vrs– Vinay Kanodia Delhi High Court 1st March 2011.
—Ex. Const. Mukesh Kumar
–vs—UOI Delhi High Court dated 5th August 2011.
ATM
Relevant case law:-
Shri. P.Padmanabh S/o
Papanna –Vrs—Syndicate Bank Limited reported in AIR 2008 Kant 42
It was a case of
plaintiff that there was malfunctioning of ATM machine that link between
the ATM machine and computer got snapped and therefore the ATM
machine allowed withdrawal of amount. Bank failed to prove correctness
of entires in the account of other side.
—Moti@ Mohit –Vrs—State,
31 October, 2011 Delhi High Court.
–Niraj Kumar –Vs– Union
Bank of India Bombay High Court dated 19th October 2007:Changing liked account number from 15 digits to 16 digits in the
ID without permission or knowledge of his superior. It shows the malafide
intention to withdraw the amount.
VIDEO CONFERENCING
Relevant Case laws:-
State of
Maharashtra—Vrs—Dr. Praful B. Desai 2003(4) SCC 601 : Video conferencing to examine the witness is permissible.
Precautions must be taken to identify the witness and ensure the accuracy of
the equipment.
R. Sridharan—Vrs—R.
Sukanya Madras High Court dated 30th March 2011: Accused and pleader can see the witness as clearly.
Demeanor can be observed. Witness can be confronted with the documents
and other materials or statement. Charge can be framed through V.C-228.
Digital camera photo
(points to prove)
1.
It is image without film or paper.
2.
Image may be degrade or altered, intentionally or accidentally.
3.
Integrity is always open to question.
4.
Printed copy is not necessary, it can be visualized on monitor but it is
desirable to
make document on record.
5.
It has to be filed with affidavit of section 65A or section 90A of Evidence Act
(in case of 5 years old)
6.
Its microchip, CD etc where it was preserved for first time has to be produced.
7.
The most important requirement is authentication. Unless the photograph is
admitted by the other
party, then the party who seek to introduce the photograph
into evidence must
produce evidence that the photograph is accurate and correct.
8.
If possible then attach digital signature to the photo (but it is not rule and
it is for
safety to prove it)
9.
In any way the original image has to be saved in original format.
10.
In case the image is edited or enhanced then new edited image has to be saved
with
another name to avoid by
replacing/overwriting over original image.
11.
Oral evidence of person can be produced who saw scene while taking photo.
Evidence of photography
colour lab.
1.
The photograph machine
description its mega pixel etc has to be disclosed.
———End——-
