Admissibility of Electronic Evidence

[Gopi Chand Tolwani]

1. If the original DVR (Digital Voice Recorder) is not produced in the court ,will the memory card alone produced in the court treated as Electronic Evidence .Shall section 65 B certificate be required.
2.If the DVR is not subjected to analysis in Laboratory for its authenticity ,then shall the memory card,transcript,CDs made out of it ,shall be treated a electronic evidence.
3.Is it mandatory to quote Serial number,Model name of DVR and memory card AND file name of the recorded voice in certificate under section 65 B.
4. Is it mandatory to have Introductory voice of Panchwitnesses in the start of the Memory card before recording the conversation of the of accused.

[Dr. Ashok Dhamija]

(1) As far as I understand, if the original memory card is produced on which the voice is recorded originally, it should be sufficient since this is the primary evidence. No need to produce the DVR in such case. Also, no need to give certificate under Section 65-B of Evidence Act in such case, since it is the primary evidence itself.

(2) I think, generally, it is the memory card, etc., where the voice is recorded which is the subject of scientific analysis. If you are referring to requirements of Section 65-B of the Evidence Act for the purposes of secondary evidence, then the DVR would be equivalent to “computer” referred to in that section; the certificate has to mention that the DVR was working properly, etc., as required under Section 65-B(2) of the Evidence Act.

(3) Section 65-B(4)(b) requires “giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer”. Therefore, you may have to sufficiently identify the DVR used in the process.

(4) It is advisable to do so, but if my information is correct it is not mandatory in law. Just last week, I saw a case from a southern state where it had not been done. It appears that different investigating agencies in India are using different processes in this regard.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Gopi Chand Tolwani]

Respected Sir,
Thank you for the reply .
Kindly clarify the following two doubts on the subject .
with regards

1. If the memory card is treated as primary evidence in which voice is originally recorded then is it mandatory that it should be subjected to scientific analysis before treating it as primary evidence.(because of chances of alteration )
2.Is the identification of memory card in terms of make, serial number,etc required before treating it as primary memory particularly in a situation where the introductory voice is not taken prior to recording.(because of chances of manipulation)

[Dr. Ashok Dhamija]

(1) If the original document (in this case, the original electronic record) is produced in the court, that itself is admissible in the court. However, admissibility and reliability of evidence are two different things. Submission of primary evidence makes it admissible. But, whether such primary evidence is reliable and trustworthy and how much weight can be attached to such evidence during trial, are different issues. It is for these things, i.e., whether such evidence is reliable also, one may need scientific analysis in a given situation.

(2) The answer to the second question would depend on the facts of the case. Perhaps, you are referring to a trap case; in such a case, if the details such as the make, serial number, etc., of the memory card have been mentioned in the pre-trap panchnama / memorandum, then they may have to be identified at the time of production of such primary evidence to prove that it is the same memory card. But, there may be other types of cases, where the recording is not done in a pre-planned manner and may have occurred in a natural course of events, then such identification features of the memory card may not have been mentioned anywhere in advance. However, if the accused raises valid objection to show that such device or memory card is not the primary evidence (i.e., this was not the original device, on which the voice was first recorded), then the prosecution may have to prove that this in fact was the original device and is thus the primary evidence. How this is done is a matter that depends on the facts of the case.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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