ABSTRACT This article basically focuses on the meaning and concept of electronic evidences. Further, explanation of the principles of the Indian Evidence Act with amendments with respect to electronic evidences is given. It also represents a comprehensive review of Supreme Court’s decisions in regard to the same. At last, the safeguards which need to be adopted by the Indian Judiciary in dealing with electronic evidences are discussed.
INTRODUCTION The 21st century has seen a technological revolution that fascinates not only India but the whole world. The proliferation of computers and Information Technology has influenced the society. Information Technology created a cyber space and is playing a significant role in different skills like government sectors, communication, services, etc. This increased dependence on electronic correspondence, data capacity and online enterprise has necessitated amendments to Indian Law, to incorporate the provisions on digital evidence.
The Information Technology Act 2000 was amended to allow for the admissibility of electronic evidence based on the United Nation’s Commission on International Trade Law (UNCITRAL) model law on electronic commerce. Digital evidence is also incorporated in the Indian Evidence Act, 1872. It has left its impression on Indian Courts with respect to relying on online data with transition to the rule.
MEANING OF ELECTRONIC EVIDENCE
The kind of proof we handle is presently differently as ‘advanced evidence’, ‘electronic evidence’ or ‘digital evidence’. Electronic evidence is probative information transmitted or stored digitally and a party to a judicial dispute in court can use the same during the trial. During the past few decades, the use of digital evidence has increased drastically. Courts permit the use of digital evidence such as messages, reports, text documentaries, computer memory material, global monitor positioning system, digital videos, sound recordings, etc.
Pollitt, the renowned scholar of cyber laws opined that electronic or digital evidence is any probative information stored or transmitted in digital form, i.e., stored in computer hard disk, floppy disks, optical disks, handheld devices, emails, memory cards, network services, etc.
Further, Digital evidence as defined by Prashant Mali cyber security expert, is any information of probative value that is stored or transmitted in binary form. Evidence is not confined to that found on computers but may also extend to include evidence on digital devices such as electronic multimedia device or telecommunication.
Electronic evidence is becoming essential form of evidence that must be accurate, authentic and complete in presentation. It must be in consonance with regard to admissibility.
Electronic Evidence and Indian Evidence Act Certain changes were made in Indian Evidence Act, 1872 to grant legal recognition to electronic record and evidence submitted in form of electronic records. These were made to make it more complementary with the changing times. Following are some of the amendments:-
The definition of 'documentary evidence' has been amended to include all documents, including electronic records produced for inspection by the court. Section 3 of the Indian Evidence Act, 1872 defines evidence as under: "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 produced for the inspection of the court. Such documents are called ‘documentary evidence’. In section 34 of the act, the words “Entries in the books of account, including those maintained in an electronic form have been substituted for the words “Entries in the books of account”. In section 35, the words “record or an electronic record” have been substituted for the word “record”, in both the places where it occurs.
For section 39, following section has been substituted:-
What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.
Regarding the documentary evidence, in Section 59, for the words “Content of documents” the words “Content of documents or electronic records” have been substituted and Section 65A & 65B were inserted to incorporate the admissibility of electronic evidence. Section 65-A states that the contents of electronic records may be proved in accordance with the provisions of Section 65-B. Section 65-B provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic, is deemed to be a document and is admissible in evidence without further proof of the original's production, provided that the conditions set out in Section 65-B are satisfied.
Electronic Evidence and the Indian Judiciary
Laws can’t be amended daily or monthly basis, to cope up the changing pace of Information Technology and society, judiciary comes forward for interpretation. No laws can be interpreted for achieving the purpose of every individual case since legislature has certain limitations for amending laws.
In the case of State vs. Mohd. Afzal And Ors, the court held that Computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act., interpretation of judiciary becomes more relevant.
In State v. Navjot Sandhu, popularly known as Parliament Attack Case, the court held that printouts taken from the computers by mechanical process and certified by responsible official of the service providing company can be led into evidence.
In Amitabh Bagchi v. Ena Bagchi, the court held that physical presence of person in court may not be required for purpose of adducing evidence and same can be done through medium like video conferencing.
Safe guards which need to be adopted
The special law and procedure created by sections 65A and 65B of the Evidence Act for electronic evidence were not used. Disappointingly, the cause of this non-use does not involve the law at all. India’s lower judiciary, where trials are undertaken - is technologically unsound. With exceptions, trial judges simply do not know the technology the IT Act comprehends. It is easier to carry on treating electronically stored information as documentary evidence. The systemic in India is reason for this. As long as the judicial system is not modernized, India’s trial judges will remain clueless about electronic evidence and the means of ensuring its legitimacy.
The growth of network-based crime has raised some difficult issues in respect of the appropriate balance between the needs to those investigating and prosecuting such crime. Law enforcement will have to expand their investigative practices to competently respond to the problem at hand, much insight can be gained from the past incidents of cyber crimes and cyber forensics when developing sound policy to guide investigators in the future.
Conclusion The appropriate amendments in Evidence Law and IT Act are incorporated by our judiciary show pro-activism. Strict compliance with section 65B is now mandatory for persons who intend to rely upon e-mails, or any electronic record in a civil or criminal trial before the courts in
India. In its judgment, Kurian J observed, that: ‘Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.’
India still has a long way to go to keep pace with the developments all inclusive of its issues with appraisal and suitability for electronic proof. Although the reforms were considered to reduce the weight of the consumer, they cannot be said to be without limitations.
 M.M. Pollitt, Report ON DIGITAL EVIDENCE, 2010
 Prashant Mali, Electronic evidence and cyber law, CSI Communication, 2012, p. 30  State vs. Mohd. Afzal and Ors (2003) DLT 358, 2003(71) drj 17.
 AIR 2003 SC 2053
 AIR 2005 Cal 11
1. Dr. Swaroopa Dholam, Electronic Evidence and its Challenges
2. Burkhard Schafer and Stephen Mason, The characteristics of electronic evidence in digital format, in Electronic Evidence, LexisNexis, 2013