THE NATIONAL UNIVERSITY OF

ADVANCED LEGAL STUDIES

INFORMATION TECHNOLOGY

ELECTRONIC EVIDENCE IN CRIMINAL

INVESTIGATIONS

Aadhithya Krishnan P

1410

6th Semester
In the present era, digital devices are a vital part in everyone’s life. Mobile phones,
computers, internet are one of the most used electronic devices but there exists even more
pieces of technology that comes under this umbrella. So this means that the rise of IT has
made every single one of electronic devices a source of evidence that can be used for
criminal investigation by the law. As the world progresses into the future, more and more
people spend more of their time and money on the internet. The more the progress, the
more things are sent through online, more frauds happen, more crimes happen. Hence
electronic records that get left behind can be used to bring justice by being used as
evidence.

What is Electronic Evidence and Electronic Record:

As per Section 79A of the IT Act, an electronic evidence can be defined as any form of
information that is of value to an investigation that is either stored or transmitted in
electronic form such as computers logs, mobile logs, video or audio from any onbject of
recording. Thus, the courts have the power to use anything they find in any electronic
device as electronic evidence for a civil or criminal trial.

Electronic record on the other hand refers to any form of data, audio or image sent
through online or received through online in an electronic form. Sec 6 of the IT Act states
that electronic records are admissible in a court of law.

Electronic records as evidence:

So Electronic evidence which is used for investigations can be classified into two:

1. Primary Evidence
2. Secondary Evidence

Primary evidence is defined as any electronic record which has been produced in its
original form.
Secondary evidence on the other hand, is any form of certified copy of an electronic
record and this source of evidence is unable to be submitted in court until a expert or a
person who has seen the document can verify its authenticity.

Primary evidence is always given priority over Secondary evidence and the latter is only
given admissibility if it complys to the conditions put under Sec 65B of the Evidence Act

There exists a wide range of ways in which data can be produced. This is classified under
the IT Act, 2008. Every electronic record deals with a variety of conditions relating to
their evidentiary value and admissibility in a court of law. The different types of
electronic records include:

i. CD’s, Hard drives, SD cards, USB sticks:

These type of electronic records are admissible both as primary as well as secondary
evidence. This depends on the what manner the record has been handed over to the
judge.

If its handed over without any change or as it is, then the evidentiary value of the
record is deemed high but if its handed over as a copied version or through some other
medium then it has to comply with the conditions precedent under Sec 65b of the
Indian Evidence Act.

In the landmark judgement of the SC in the case of Anvar P V .v P K Basheer and

Others (2014), it was held that the secondary data submitted through USB’s, CD.s etc
(copied versions of the original) are not admissible and Oral Evidence cannot be
prove the genuineness of the Electronic record submitted. The secondary evidence has
to comply with the conditions laid down in Sec 65B of the Act and then only it can be
deemed admissible

ii. Video or Audio Recordings:

 The same rule that is laid on CD’s, DVD’s etc is imposed on audio and video
recordings.

If its submitted in the original version then it is considered as a valid source of

evidence and if the copied version of it is submitted then it has to comply with the
conditions put forward under Sec 65b of the Indian Evidence Act

iii. Emails, Call logs, Phone Media:

Mobile phones are considered a gold mine for investigators as they allow them to get
their hands on valuable evidence. They can be used for tracing locations, the media
captured can be used as evidence, and call logs also are also very important in aiding
the investigation. If the contents of the mobile phone is submitted in its original form
then, the evidence is admissible and if its submitted to the court in a copied version
then it has to comply with the different conditions set forward in Sec 65B of the
Indian Evidence Act

Challenges to the authenticity of electronic evidence:

There are various challenges that the investigators face while trying to authenticate the
electronic evidence they have. The main such challenges are:

i. The party can claim that the record submitted were damaged, altered in a way
that it isn’t valid anymore
ii. The reliability of computer which helped generate the electronic evidence can
be put to doubt
iii. Alteration of SMS, Mail or any other typed electronic evidence can be
questioned hence it could lower the admissibility of relation bw the person and
the SMS, Email sent
iv. Any evidence taken from any mass-used networking site can also be
questioned for reliablility as it can be omitted or edited without notice
v. Sometimes evidence can be difficult to obtain from websites which updates
itself almost regularly, and obtaining a record from a said period of time can be
very hard

Section 45A of the Indian Evidence Act – Expert Opinion:

Expert opinion is something which is held by of very high importance by investigators

and Courts. An expert is someone who hold very strict knowledge about a particular
field. An expert’s opinion is referred to when investigators need specialized
knowledge about a investigation subject which a normal police officer wouldn’t
possess.

Every opinion made by the expert is to considered advisory and cannot be considered
a final verdict. The advice is only to give the investigators transparency about the
subject they had no knowledge about.

Section 45 of the Indian Evidence Act is about expert opinions in areas of

specialization like science, art etc. Delving deeper, we find Sec 45A which also talks
about expert opinion in the subject of electronic evidence. This section is considered
important as it is regarding to scenarios where expert opinion is needed on matter
related to information stored in any electronic record.

Criminal Offences in the Indian Penal Code in which Electronic Records are
present:

i. Section 419 and Sec 420:

These two sections deal with frauds such as stealing of passwords for fraud
and illegal entry into email account by faking ones identity to recover
password all comes under these two sections. Sec 419 carries punishment of 3
years or fine and Sec 420 carries upto 7 years of imprisonment or fine
ii. Sec 465 and 468 of the IPC:
This section deals with offences such as forgery of documents and email
spoofing on the internet. This section punishes offenders to 2 years of
punishment or fine for committing acts laid down as such above. Sec 468 on
the other hand deals with the same but for offences of a higher degree such as
cheating someone for fraudulent needs

iii. Section 469 of the IPC:

The section deals about defamation and Sec 500 of the IPC deals with any
abusive online messages or sending of any kind of defamatory material online.

iv. Section 292 of the IPC:

This section deals with the publication or transmission of material of sexual
and explicit nature online, exploits against children in electronic form. This is
one of the major sections in the IPC which has close ties w the electronic
evidences and IT.
References:
1. https://www.irjet.net/archives/V4/i6/IRJET-V4I6303.pdf
2. Admissibility of Electronic Evidences by Vivek Dubey
https://medcraveonline.com/FRCIJ/admissibility-of-electronic-evidence-an-indian
perspective.html#:~:text=The%20Information%20Technology%20(IT)%20Act,for
%20transactions%20in%20electronic%20world.
3. Microsoft Word - digital.docx (forensicsciencesimplified.org)
4. Use Of Electronic Evidence In Judicial Proceedings - Litigation, Mediation &
Arbitration - India (mondaq.com)