Bivas
Electronic Evidence, Drafting statement u/s 65B Evidence Act, Audio/Video Evidence by Bivas Chatterjee
Bivas Chatterjee 28 Jun 2019

Electronic Evidence, Drafting statement u/s 65B Evidence Act, Audio/Video Evidence by Bivas Chatterjee

Electronic Evidence

             STATEMENT U/S 65B OF INDIAN EVIDENCE ACT

 

What is EVIDENCE : An 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.

 

Locard's Exchange Principle:

As per Wikipedia, In forensic science, Locard's exchange principle holds that the perpetrator of a crime will bring something into the crime scene and leave with something from it, and that both can be used as forensic evidence. ………………… He formulated the basic principle of forensic science as: "Every contact leaves a trace".

Paul L. Kirk expressed the principle as follows:

"Wherever he steps, whatever he touches, whatever he leaves, even unconsciously, will serve as a silent witness against him. Not only his fingerprints or his footprints, but his hair, the fibers from his clothes, the glass he breaks, the tool mark he leaves, the paint he scratches, the blood or semen he deposits or collects. All of these and more, bear mute witness against him. This is evidence that does not forget. It is not confused by the excitement of the moment. It is not absent because human witnesses are. It is factual evidence. Physical evidence cannot be wrong, it cannot perjure itself, it cannot be wholly absent. Only human failure to find it, study and understand it, can diminish its value."

Welcoming science:

Justice Stephen Breyer of the US Supreme Court  said, “Science in the Courtroom”,  “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.”

Universality of electronic evidence:

Reading the various definitions of “electronic record”, “data” and “electronic form” in the I.T. Act, 2000 as amended in 2008 along with the definition of ‘document’ in the Indian Evidence Act, 1872, it becomes clear that computer images, text and sound videos, whether on a computer file, blog, web-site or e-mail, are all documents.

 

Welcoming Electronic Records/Evidence

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. 

 

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

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.

 

Nature of Electronic Evidence

ü  Electronic evidence is information and data of investigative value that is stored on or transmitted by an electronic device

ü  Electronic evidence is, by its very nature, fragile.

ü  It can be altered, damaged, or destroyed by improper handling or improper examination. For this reason, special precautions should be taken to document, collect, preserve, and examine this type of evidence.

ü  The nature of electronic evidence is such that it poses special challenges for its admissibility in court.

ü  Chain-of-custody is the collection, preservation and analysis of evidence for the purpose of establishing authenticity and reliability of evidence.

...........for details please watch :

Electronic Evidence, Drafting statement u/s 65B Evidence Act, Audio/Video Evidence: Bivas Chatterjee

https://www.youtube.com/watch?v=_3NUVQiftA4

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