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SanjaySalkute

For the Admissibility of electronic evidence, it must satisfy the same rules as required for traditional documentary evidence to be admitted into evidence as laid down by Indian Evidence Act. But most of electronic evidence is intangible, invisible so some help/aid  from technical person/Knowledge may be required to ascertain the fact which is to be proved. The section 3 for , “Document” and “Proved” reflects that, the principles of Indian Evidence Act are not changed in any way to prove the electronic documents. Being Jorgan (technical Words) in the Information Technology Act , some may feel that, it is difficult law to understand.  In this article an attempt is made to compare traditional method with the  digital document/evidence. It is not exhaustive but some material points are discussed in question /answer forms.

  1.  How e-mail has to be prove ? How printed copy of e-mail has to be proved ?How e-mail has to be proved without 65(B) Certificate ?

Answer( not exhaustive)  :-E-mail means electronic mail.  Section 88, 88A, 114(f) of the Evidence Act with section 26 of the General Clause Act are relevant sections for sending and receipt of e-mail and its proof. Firstly see, whether  email copy is original print out from computer or it is a copy of print out. In fact, the requirement of originality for paper document is applied differently in email evidence. If data are stored in a computer or similar device, any printout readable by sight, shown to reflect the data accurately, is deemed as “original”. To admit emails into evidence, the proponent must show the origin and integrity of emails. He must show who or what originated the email and whether the content is complete in the form intended, free from error or fabrication. In discovery, the proponent needs to prove that the hard copy of the email evidence is consistent with the one in the computer and includes all the information held in the electronic document.

Next stage follows that before admissibility the document has to meet the requirements of authentication or identification. This is a process of verification that establishes that the document is what it purports to be. I.e. that the email was made by the author indicated therein and is unaltered except for the change in the document generated automatically such as adding the date and time in case of email and address. The burden is on the person adducing the data message to prove its authenticity by adducing relevant evidence therefore that the document is what it purports to be. Where best evidence is the evidence required, the rule of best evidence is fulfilled upon proof of the authenticity of the electronic records system in or by which the data was recorded or stored. In assessing the evidential weight the  court shall have regard to the reliability of the manner in which the data message was generated, stored or communicated; the reliability of the manner in which the authenticity of the data message was maintained; the manner in which the originator of the data message or electronic record was identified; and any other relevant factor.

 

The authenticity of the electronic records system such as a computer is presumed in the absence of any evidence to the contrary where there is evidence that the system was operating properly. Where the record is stored by a party adverse to the production of the email or data message; evidence is led that the record was stored in the usual and ordinary course of business by a party who is not a party to the suit. The Act specifically provides that it does not modify the statutory or common law rules for the admissibility of evidence. For admissibility of electronic records, specific criteria have been made in the Indian Evidence Act to satisfy the prime condition of authenticity or reliability which may be strengthened by means of new techniques of security being introduced by advancing technologies.  It also requires A] Integrity of the data. B] Integrity of the hardware/software c] Security of the system.

Each user on the Internet has a unique address in the format – username @ domain name eg. sanjaysalkute@gmail.com. This address helps you in identifying a user to whom you wish to send e-mail. The sender composes the mail message using his mail client software eg. Netscape mail, outlook express, Eudora,Pin etc.

Important points to be remember while hearing to the matter  :-Email can  be send by computer, mobile, tab etc. If  it is send by mobile phone then said handset has to be seized. Deleted etc. data has to be recovered. Location from where it was sent has to be ascertain. Web URLs/Content, Images/Video has to ascertain .

1. Ownership and possession Identify the individuals who created , modified, or accessed a file, and the ownership and possession of questioned data by placing the subject with the device at a particular time and date, locating files of interest in non-default locations, recovering passwords that indicate possession or ownership, and identifying contents of files that are specific to a user.

2. Application and file analysis Identify information relevant to the investigation by examining file content, correlating files to installed applications, identifying relationships between files (e.g., e-mail files to e-mail attachments), determining the significance of unknown file types, examining system configuration settings, and examining file metadata (e.g., documents containing authorship identification).

3. Time frame analysis Determine when events occurred on the system to associate usage with an individual by reviewing any logs present and the date/time stamps in the file system, such as the last modified time. Besides call logs, the date/time and content of messages and e-mail can prove useful. Such data can also be corroborated with billing and subscriber records kept by the service provider .

4. Data hiding analysis – Detect and recover hidden data that may indicate knowledge, ownership, or intent by correlating file headers to file extensions to show intentional obfuscation; gaining access to password-protected, encrypted, and compressed files.  The problem of hacking or virues destroying the emails has not been dealt with in India .The onus is to decide what part of the series of letters (emails) is necessary.  This is not as equitable way as both parties might separately have important information which supports their cause.  In such situation, it would be best to allow both parties to choose their relevant parts separately and then ask the court to look into the relevance of submissions.  This way  the court will not miss out on any revelation that might be made by the parties in either case, and will be able to meet the stated purpose of the section i.e. to grasp the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.

 Points to consider for Proof: For email evidence, the burden of proof lies with the party who wishes to employ an email record as evidence of an electronic transaction and therefore such records must be in a court admissible . This will require independent verification of the components mathematically:-

E-mails are composed of a “header” and “body”.While the body of the email contains the individual text composed by the sender, the header listing the sender’s name and address, the recipient’s user name and address, the transmission date and time and the subject matter of the mailing. If email is produced by a party from the party’s files and on its face purports to have been sent by that party, these circumstances alone may suffice to establish authenticity. Authentication should be made through a knowledgeable witness who can identify the authorship as well as the documents appearance, contents, substance, internal patterns, or other distinctive characteristics. Given that most emails contained certain identifying markers, such as the address from which they were sent, the name of the sender, or the company name, that information, coupled with their production during discovery, should be enough to satisfy the authentication requirements.

  • The original message content and all attachments
  • The uniform time (not the sender’s desktop computer time) of transmission (sending and receipt) of the message .
  • The underlying transmission meta data that for court purposes serves as the recorded digital snap shot of both servers’ sender and recipient.
  • Collection transaction data that under terms of electronic law .
  • The email must of course be dispatched to what is, in fact the email address of the intended recipient.

Some Questions to be answer before proof the document:

  1. What is email client Software ?
  2. What Hardware was used to send/receive  email ?  e.g computer, Tab, Mobile etc.
  3. When event occurred on system? There should be  Uniform time of transmission of the message (when send when received).
  4.  Who was running system ?
  5. Who was present at the time of sending ?
  6. What is details of call logs of account, date,  time and type of file system, last modified time, contents of messages, billing of subscriber record kept by the service provider ?
  7.  What part of the series of emails are necessary to prove the fact?

                        Address proof :-        Civil:-both parties have to produce emails received during the  said period.

                                                Burden of proof :-     Who wishes to employ an email record as   evidence.  It requires independent verifications- Email header-body. Authentication may be made from the witness who identify the   authorship of         account/address, documents, contents, substance.

                                                Attachment files :-     contents and attachment has to be proved.

8. What are special precautions to prove email in case of crime?

            Crime :-If email send through computer  then identify the file content, correlated files,     relations between files,unknown files and its relations, examine the system, meta date            (documents containing authorship and identification recorded digital snap shot of both       server’s sender and recipient).  Detect and recover hidden data which shows ownership,         compressed files.

If mails send by mobile then  handset has to be seized with Sim card, to detect, deleted files        has to be recovered, Location from where it was sent, Web/URL/contents, Images, video etc.          Ownership, possessor of mobile at particular time, date place, recovery of password, identify            the contents of mobile data connected with the user and cause of action.

9.What is procedure if the integrity is challenged ?

If integrity of the contents or time of receipt          is challenged then record must sent to expert.

10.How to prove admissibility of email ?

All sections which are given in Indian Evidence Act for Documentary Evidence are          applicable .  Whether print out is original or copy?  To prove original it is necessary to prove      origin and integrity, show that who and what originated the mail, whether contents are       complete, free from error or fabricated.  In discovery the hard copy of mail is consistent with   in the computer and includes all information held in the document.  It is necessary to prove       that, it was unaltered except the change in the document generated automatically such as             adding the date, time. It is necessary to prove the authenticity of the electronic records     system or by which the data recorded or stores.  The reliability of the manner in which the        date message was generated, stores or  communicated, the reliability of the manner in which            the authenticity of the date message was maintained, the manner in which the originator of       the data message or relevant record was identified, and other relevant factors.  Print out of      email is admissible without actually filing the original soft copy.

11. How to prove that, system was properly working ?

Show that the system was working properly, the evidence is necessary to show that, record           was stores in the usual and ordinary course of business by a party (provider) who is not party             to the case.  If some one challenges the accuracy of the computer evidence or electronic        evidence or interpolation then he must prove the same beyond reasonable doubt.

12.What is protected method to send email ? For security send email by digital signature which           is followed by sms or phone about key/signature.

Relevant Case laws :-

–Ark Shipping Co. Ltd. – Vrs- Grt Ship Management Pvt. Ltd reported in 2008(1) ARBLR 317 (Model Affidavit Section 65B)

– State- Vrs-Navjot Sandhu 2005 (11) SCC 600 (certificate under section 65B not necessary)

– State of Delhi – Vrs—Mohd Afzal and others 2003(3) 11 JCC 1669

– Commissioner of Customs Mumbai—Vrs—Ridhi Sidhi Furniture Fitting Co.2002 (144) ELT 444 (Name of sender of the email was blocked in copies supplied to the importer and the address of the person sending the quotation was not known as well)

– Capt O.P Molhotra and another –Vrs– The State of Haryana decided on 5-11-2012 Punjab Haryana High Court.


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Good Article. The author has considered the mandatory compliance to rely on electronic record in accordance with prescribed procedures that overrides the general provisions to adduce secondary evidence.

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I have screenshots and pdf of chats between my wife and boy friend. It took place between Apr 2013 and Jan 2014. I noticed those in Feb 2014 only. Somehow, she found out that I logged in and deleted all chats the next day. I made a screenshot and also got it in pdf format When I enquired after a week with printed sheets in my hand, she denied having sent those mails to her boy friend. She accuses me that I doctored her chats using PDF writer or created hard copy using Photoshop and other design softwares with help… Read more »
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