NAME: ANSHUL CHAUHAN

ROLL NO.: 1538

SECTION: A

EVIDENCE ASSIGNMENT (CA-III)

DOCUMENTARY EVIDENCE

INTRODUCTION

The Indian Evidence Act has been amended by virtue of section 92 of Information Technology
Act, 2000. Section 3 of the Act was amended and the phrase “all documents produced for the
inspection of the court” were substituted by “All documents including electronic records produced
for the inspection of the court”. In relation with documentary evidence, the wording of section 59
which states “content of documents” has been substituted to “content of documents or electronic
records” and section 65A & 65B, which describe the procedure to produce electronic evidence in
courts during criminal trials and the admissibility of the same. These sections minimise the risk of
falsification of digital evidence through various stipulations.

DOCUMENTARY EVIDENCE

All evidence comes to the Court either as a statement of a witness or statement of a document,
i.e., oral or documentary. The expression “documentary evidence” as it is defined in section 31
means all evidence produced for the inspection of the court. The purpose of producing
documents is to rely upon the truth of the statement contained therein2.

1
Section 3, Indian Evidence Act, 1872

2
Vepa P. Sarathi, JOURNAL OF THE INDIAN LAW INSTITUTE, 1972.
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The subject of documentary evidence is dealt with the points that,-

1. How are documents to be proved,

2. What are presumptions about the various kinds of documents, and
3. Exclusion of oral evidence by documentary evidence.

PRIMARY EVIDENCE: -

Section 62 of The Indian Evidence Act, 1872 defines primary evidence. It means the document
itself produced for the inspection of the court. According to the explanations given under section
62 primary evidence also means where a number of documents are all made by one uniform
process, as in the case of printing, lithography or photography, each is the primary evidence of
contents; but, where there are all copies of a common original, they are not primary evidence of
the contents of the original.

For example- In the case of a cheque, the main cheque is signed by drawer so that it is primary
evidence against him, and the counter foil may be signed by the payee of the cheque so that it will
be primary evidence against the payee.

SECONDARY EVIDENCE

Section 63 of The Indian Evidence Act, 1872 deals with secondary evidence which includes –

Secondary evidence of the contents of written instruments cannot be given, unless there is some
legal excuse for non- production of the original. Further, secondary evidence can only be given
when the primary evidence or the document itself is admissible. Secondary evidence cannot be
given of a document when the original is found to be in admissible. If a deed of gift is inadmissible
in evidence for want of registration, no secondary evidence of the deed can be given in a suit to
recover the gifted property.

PUBLIC DOCUMENT

section 74 defines the public documents;

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  Public documents kept in Sovereign authority (namely, the parliament and the legislative
assembly)
 Kept under the official bodies and tribunals and
 Under public officers, judicial, executive, legislative or of any part of India and of foreign
country

PRIVATE DOCUMENT

Section 75 defines that all other documents are private documents

 These types of documents are kept under the hands of a private person
 Certified copies do not present in private custody
It is a documents which is use by private person for their business transactions and
communications d) tin private document, there is no such protection.

HOW ARE DOCUMENTS TO BE PROVED:

In proving document, 3 things need to be proved,

1. Existence of the document,

2. Condition of the document,
3. Contents of the document.
Section 593 provides that among these three, only the contents of the document cannot be proved
by oral evidence. So, the existence and condition of the document can be proved by oral
evidence which is considered as secondary evidence u/s 63. But when a fact is required to be
proved by document, the first requirement of law is that the document itself i.e., the original
document should be produced in the Court. Section 64 runs as that the documents must be
proved by primary evidence. And the primary evidence means the document itself (S-62). But
the same section puts an exception too.

3
Section 59, Indian evidence Act 1872.
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ELECTRONIC EVIDENCE

According to Section 2(1) (t) of the IT Act, an electronic record is “data, record or data generated,

image or sound stored, received or sent in an electronic form or micro film or computer generated

micro fiche”. Section 65A and 65B of The Evidence Act, 1872 states that-

 Information produced by the person who is having a lawful control over the computer’s
use.
 The electronic record contained must be regularly fed onto the computer.
 The computer must be in proper use or in the accuracy of records,
 Recording must reproduce the information properly and such information fed into the
computer in the ordinary course of activity.

Section 65B lays down the above-mention conditions, it states that electronic record must
contain a genuine statement and it must be signed by the officer in charge of the management
of related activities.

RELEVANCY OF ELECTRONIC EVIDENCE

The Indian Evidence Act manifests this principle in Ch. II, which lists, from ss.6 to 55, those
facts that are deemed to be relevant to a proceeding. In the context of electronic evidence, it is
ss.22A and 47A of the Evidence Act4 that are of special relevance. Section 22A provides that
oral admissions as to the contents of the electronic record would not be relevant unless the very
genuineness of the record is in question. Similarly, when an issue involves a person’s digital
signature, the opinion of the certifying authority which issued the digital signature is construed
to be a relevant fact as per s.47A. Other sections of the Evidence Act that deal with electronic

4
Inserted by Act 21 of 2000 (Information Technology Act), section 92 and Schedule II (w.e.f. 17-10-2000)

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 evidence are sections 34, 5 35, 6 and 39.7 Presumptions about gazettes in electronic form,8
electronic agreements,9 electronic records and digital signatures,10 messages11 and as to
electronic records (older that five years)12 also find a place in the Evidence Act. Section 131 is
about the circumstance when another person, who is in possession of documents and electronic
records, could refuse to produce it before court.

ADMISSIBILITY OF ELECTRONIC EVIDENCE

Section 65B (4) in particular, requires a certificate which has to mention the electronic record
containing the section, the manner of production of the record, the particulars of the device
used in producing the record and be signed by a person occupying a responsible position in
relation to the device to be produced along with the evidence when it is submitted. This
requirement has come under scrutiny over the years, with various judgements giving opposing
views of the section which has resulted in a very unsettled position of law. The law on the issue
is still unclear

In case of Anvar P.V. versus P.k. Basheer & ors13. the Supreme Court has settled the
controversies arising from the various conflicting judgments as well as the practices being
followed in the various High Courts and the Trial Courts as to the admissibility of the

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Entries in books of accounts including those maintained in an electronic form are relevant but not sufficient.

6
Entry in public [record or an electronic record] made in performance of duty is relevant.

7
Evidence to be given when statement forms part of a conversation, document, electronic record, book or series of
letters or papers

8
Section 81 A of the Evidence Act, 1872 (Act 1 of 1872)

9
Section 85 A of the Evidence Act

10
Section 85 B of the Evidence Act

11
Section 88 A of the Evidence Act

12
Section 90 A of the Evidence Act

13
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
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 Electronic Evidences. The Court has interpreted Section 22A, 45A, 59, 65A & 65B of the
Evidence Act and held that secondary data in CD/DVD/Pen Drive are not admissible without
a certificate U/s 65 B(4) of Evidence Act. It has been elucidated that electronic evidence
without certificate U/s 65B cannot be proved by oral evidence and also the opinion of the
expert U/s 45A Evidence Act cannot be resorted to make such electronic evidence admissible.

However, in case of Sonu v. State of Haryana, the supreme court disagreed with Anvar case
and refused to be bound by it. By going against a bench of higher strength and questioning its
validity, they created a new facet to the issue. The Court decided that it was not wise to apply
this case retrospectively as it may lead to the re-opening of many decided cases but also felt
that it could not decide on the prospective ruling and therefore left it to be decided by another
bench of greater strength. The effect of this case is that Anvar v. Basheer has been brought into
question and its binding value on future cases is not certain. Further, by laying down that the
admissibility of evidence could not be questioned in the appellate stage, the Court barred relief
in all cases wherein the admissibility was not contested at trial. Similarly.

In a recent case of Shafhi Mohammad v. The State of Himachal Pradesh14, The Court
disagreed with the Anvar case on the point that the Sections 65A and 65B were a complete
code on the matter of digital evidence. It held that the requirements of Section 65B were merely
procedural in nature and that they may be relaxed or foregone in the interest of justice, and if
the Court was satisfied with the authenticity of the evidence, it could relax the procedures based
on the facts in the interest of justice.

In above-mentioned case the core issue was whether videography of the scene of crime or
scene of recovery during investigation should be necessary to inspire confidence in the
evidence? During the course of hearing in the case apprehension was expressed on the
question of applicability of conditions under Section 65B(4) of the Evidence Act to the effect
that if a statement was given in evidence, a certificate was required in terms of the said

14
Shahfi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801 (order dated

January 30,2018).
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 provision from a person occupying a responsible position in relation to operation of the
relevant device or the management of relevant activities.

It was submitted that if the electronic evidence was relevant and produced by a person who
was not in custody of the device from which the electronic document was generated,
requirement of such certificate could not be mandatory.

In the case of Tomaso Bruno & Anr. v. State of U.P.15 Supreme court acquitted the appellants
on the basis of the prosecution failing to adduce CCTV footage. The effect of non-production
of not adducing the best evidence, is viewed by the Court as material suppression which leads
to an adverse inference under Section 114(g) of the Evidence Act. It is important to note that
the reasoning of the Court is not limited to the absence of CCTV footage.

ADMISSIBILITY OF SMS/WHATSAPP MESSAGE

Section 2(i) defines computer as “any electronic magnetic, optical or other high-speed data
processing device or system which performs logical, arithmetic, and memory functions by
manipulations of electronic, magnetic or optical impulses, and includes all input, output,
processing, storage, computer software, or communication facilities which are connected or related
to the computer in a computer system or computer network”. This definition also includes the
mobile phones as well. It means that SMS/WhatsApp message would be admissible under the court
of law for the documents are admissible under the Section 65 of Indian Evidence Act, 1872.
However, it has to fulfil four conditions mentioned in the section before it can be deemed as a
document. Such conditions are a) the computer that produced it must have been used regularly at
the time of production of such electronic documents; (ii) the kind of information contained in the
computer must be such that it is regularly and normally supplied to the electronic device; (iii) the
computer should be in proper condition and must work properly at time of creation of electronic
record; and, (iv) the duplicate copy must be a reproduction of the original electronic record.

It is now well-established by the court that SMS, MMS and e-mails are admissible. In State of
Delhi v. Mohd. Afzal & Others, it was held that electronic records are admissible. It also cleared

15
Tomaso Bruno v. State of UP, (2015) 3 SCC (Cri) 54.
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the doubt that even if there is a scope of misuse of system or failure of operating system or
interpolation as to affect the accuracy of such electronic data then it is the onus on the person who
is challenging such electronic data. The court said that mere theoretical and general apprehensions
cannot make clear evidence inadmissible in court. The Delhi High Court held that any document
received as forward on WhatsApp cannot be treated as document without the Original or copy of
the Original under Section 3 of The Indian Evidence Act, 1872. Justice Sanjeev Sachdeva made
the above observation in the case of National Lawyers Campaign For Judicial Transparency &
Reforms & Ors v. Union of India & Ors16.

PROOF OF SIGNATURE, EXECUTION, ATTESTATION, VERIFICATION, ETC.

When any document written or signed is produced before the court it calls for authentication of
the writing. Section 67 requires proof of signature and handwriting of the person alleged to have
signed or written the document produced. Mere production of written document is not enough
unless the signature and writing are proved. The production and marking of a document was not
enough, because its execution has to be established. If, however, the signatories admitted and the
document was marked, then there was no need to adduce evidence for proving its execution17. The
court in case of Pawan kumar v. state of Haryana18 reiterated the Narbada case by saying that
mere production and marking is not enough but prosecution has to prove that the handwriting and
signature of the accused through handwriting expert.

Section 71 is also an exception to the general rule laid down in Section 68 of the Evidence Act. It
lays down if the attesting witness denies or does not recollect the execution of a document, the
execution may be proved by any other evidence. It can be said that the execution of a document is
not entirely left to the mercy of the attesting witness. Section 71 is an exception to the rule of proof

16
National Lawyers Campaign for Judicial Transparency v. UOI, 2017 SCC Online

Del 8564.

17
Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745.

18
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241.
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of an attesting witness. It is permissive and an enacting section permitting a party to lead other
evidence in certain circumstances19.

19
Janaki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761.
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