Bivas
Electronic Evidence| A Murder Case | Hacking
Bivas Chatterjee 3 Apr 2021

Electronic Evidence| A Murder Case | Hacking

In today’s world in proving any case electronic evidence can play an important role. Hon’ble Justice Stephen Breyer of the US Supreme Court said, in the Article “Science in the Courtroom” that in this age of science, science should expect to find a warm welcome, perhaps a permanent home, in our courtrooms… Our decisions should reflect a proper scientific and technical understanding so that the law can respond to the needs of the public.

The recent judgements which are worth mentioning in India are as follows: "In Ziyauddin Burhanuddin Bukhariv. Brijmohan Ramdass Mehra [Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17] , this Court noted that 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 can be gathered and can be crucial evidence.”

(Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801: 2018 SCC OnLine SC 56 : (2018) 1 SCC (Cri) 860 at page 808)

The application of electronic evidence has further been facilitated by various amendments in criminal major acts or provisions of other acts which may be as follows:

As per Section 3 of Indian Evidence Act,

“Evidence”.—“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.

Following provisions of Information Technology Act help provide a welcoming change in Electronic Records/Evidence appreciation:

Ø Section 3. Authentication of Electronic Records

Ø Section 3-A. Electronic Signature Authentication

Ø Section 4 of IT Act : Legal Recognition of Electronic Records.

Ø Section 5. Legal recognition of Electronic Signature.

Ø Section 10-A. Validity of contracts formed through electronic means.

Legal Recognition of Electronic Records:

Section 4 of IT Act, 2000:

Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is -

(a) Rendered or made available in an electronic form; and

(b) accessible so as to be usable for a subsequent reference.

So, every Learned Court has to welcome electronic evidence in trial.


For every case like the one I shall venture in discussion in this article, the following time-tested view is equally important:

As per Wikipedia, in forensic science, Locard's exchange principle holds as: "Every contact leaves a trace".

The most important criticism on digital evidence is that digital evidence can be easily altered.

However, in US v. Bonallo (858 F. 2d 1427 - 1988 - Court of Appeals, 9th 2002) a US court ruled that "the fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness".

Now let us see a conventional murder case investigated and tried with crucial electronic or digital evidence. For the sake of right to be forgotten, I am not inclined to divulge the details of the names of the offenders.

In JAGADDAL PS case, in West Bengal, long 8 months trial ended in conviction and the followings points are worth mentioning:

Ø Total 17 numbers of witnesses and two expert (CFSL) witnesses whose personal appearance waived u/s 294 Cr.P.C.

Ø There were more than 80 numbers of document exhibited and 09 numbers of material exhibited including electronic records.

Ø The entire trial was completed within 8 months approximately.

ØOne of the fastest, contested Murder case followed by Cybercrime cases in India.

Ø Prosecution in its written arguments very consciously established the time of murder through the chain of evidences which came up in trial with the help of medical evidences, relied and settled observation or opinions of medical expert in their celebrated journals as well as the innovative Electronic Evidences.

Ø Perfect blend of volumes of electronic evidences, non-electronic evidences, the vital evidence of traceability path starting from IP address to user details were produced before the court.

Ø The evidence of two witnesses who lastly saw the victim along with the accused persons on the date and just before the incident, also been successfully established by the prosecution.

Ø The precious electronic evidence is that during the period of incident to the arrest of accused persons, the cell tower location of victim and the accused persons were same, thus evidence was also been proved by the prosecution in the present case.

Ø The mother of victim with a shock of his only minor son’s missing for 11 days and subsequently murder, got completely devastated and collapsed by this heinous offence and lateron she fought back and boldly withstood two day’s rigorous cross-examinations after delivering clear and truthful evidence in examinations-in-chief.

Ø The evidence of brother-in-law (elder sister’s husband) of victim who got the first ransom call and lateron was bound to rush here-n-there for two days as per the directions of the accused persons, was also proved by the prosecution before the court. He also specified the name of one of the three accused persons who made such ransom call.

Ø The prosecution also succeeded in proving the procedure of Lunh Algorithm in such electronic evidence.

Ø The application of section 47 of Indian Evidence Act by the prosecution helped the case in fastest conclusion as well as also save the precious time of Ld. Court.

Ø The prosecution succeeded in proving the fact of Section 120A and 120B through the evidence of mother in whose presence the accused persons planned with victim for their Bandel visit and cousin brother of victim who lastly saw the victim alongwith accused persons.


THE GIST:

One lady a lodged complaint before local Police Station alleging that her beloved only son, (being the deceased herein) aged about 18 yrs left his residence for tuition. Also, her son-in-law at Delhi got one ransom call from the mobile No. of deceased and over such call the accused persons demanded Rs. 15,000,00/- as extortion money to release the victim otherwise they would kill the young victim. Thereafter he informed this to his wife and she conveyed this to her mother at Kolkata.

On searching for deceased here-and-there mother came to know from cousin brother cum friend of deceased, that he saw deceased and accused persons on the same day in the evening at place and on asking by him, the deceased revealed about his visit alongwith with accused persons and they were headed towards Railway Station.

Brother-In-Law after reaching Kolkata, started to search for the victim through every possible way. Brother-In-Law had uploaded one picture of the victim on his Facebook account timeline with an endorsement of “Missing” and also mentioned the phone number to contact. Later, one comment of “Call Kar” has been posted on the said Facebook Post from the Facebook account of the deceased.

Later during investigation, the dead body of the victim has been recovered by the officers of from the river Ganga. The investigation agency working with the URL of the Facebook account of the deceased ultimately found that the accused persons were using the Facebook account of the victim to make a representation that the victim boy was alive at that time and if ransom was paid, they would free him.


CHARGE HAS BEEN FRAMED ON THE FOLLOWING SECTIONS:

SECTION 365 of the Indian Penal Code - Kidnapping or abducting with intent secretly and wrongfully to confine person.

Section 300 in The Indian Penal Code - Murder

Section 302 in The Indian Penal Code - Punishment for murder.

SECTION 201 of the Indian Penal Code - Causing disappearance of evidence of offence, or giving false information to screen offender.

SECTION 34 of The Indian Penal Code - Acts done by several persons in furtherance of common intention.

SECTION 120B in The Indian Penal Code - Punishment of criminal conspiracy.

SECTION 66 of IT Act - Computer related offences.

SECTION 66C of IT Act - Punishment for identity theft.

The significant fact is that charges were framed against all the accused persons on the allegation of murder with hacking amongst other offences.

After nearly 8 months’ of trial the Ld. Court held all of the accused person as guilty and sentenced to life imprisonment.

PROBLEMS FACED: -

The most important and very unfortunate and peculiar incident occurred as when the trial was fixed for examination of the 1st Investigating Officer he suddenly disappeared for few days and subsequently found ill in an unknown place. After waiting for a considerable period the prosecution has submitted some medical documents and the whereabouts of the 1st I/O of this case. It was not possible for the prosecution to bring him before the Ld. Court and the 2nd I/O i.e. PW-17 has stepped into the shoes of the 1st I/O. The prosecution proved various documents and facts being the exhibited documents prepared by the 1st I/O through the 2nd I/O and facts referring from the case diary during the tenure of 1st I/O. as the PW-17 being the 2nd I/O has perused the entire CD and was fully acquainted with the handwriting and signatures of the 1st I/O being colleague in the same PS for a considerable period.


CORPUS DELICTI - In the present case the defence many a times tried to challenge the identity of the deceased (though the identification of the deceased is established beyond any doubt), and even if for argument’s sake we accept that the body found was not the body of the victim boy, even in that case also applying above ruling and others enumerated hereinafter, the prosecution case still hold good even in the absence of corpus delicti.

In the conclusion I am inclined to end this article with the following celebrated observations:

“[t]he potentially limitless application of computer technology to evidentiary questions will continually require legal adaptation.” (Penny v. Commonwealth, 370 S.E.2d 314, 317 (Va. Ct. App. 1988))

 

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