E-mail/Electronic Document Proof ?(Part -II)

E-mail/Electronic Document Proof ? (Part-II)

( In continuation of previous article (tips) to prove electronic document . Following are  material points to prove other documents also( not exhaustive). Both  articles are for  Legal Literacy , to those who have little concern with the electronic documents proof and do not know method to produce in court of law)

Face Book ( points to prove)

Nature of Facebook :- Registered user creates profile. You can  upload photos, video, send message, keep in touch with  friends, has public features like Groups, events, pages.  It has  Wall, Virtual Photo Album.  It allows friends to comment on each other, may broadcast announcement.  It offers a range of privacy, Message Box is  for private use. It has facility to hide or  disclose our profile from particular friend or friends .  But, before making friend make sure about the requested of the friend. Wall is the area on page or profile where friends and fans can post their thoughts, views or criticisms for everyone to see.

 

Prove :-  It should be authenticated data like other electronic message proof.  For which there should be research of friends correct details, web page print, URL list (available at about us).  In fact many people do not use their real name in such case  trace out  the real name by email address.

 

Admissibility : most of contents of face book are public domain.  Content of profile is not private.  Access to the contents of third person is legitimate and there no infringement of privacy.

CD, DVD, microchip etc.( points to prove )

1. Who recorded it ? There should be  certificate as per Information Technology Act.
2. Affidavit from the person who recorded it.
3.  Copy of the CD has to be given to other side (who will defend ).
4.  If CD prepared from tape recorder then it is secondary evidence and can be proved by producing original tape.  It is necessary  to prove by which device it was prepared.
5.  Court  may determine the voice recorded were of the person taking action.
6.  It has to play in the court.
7.  Evidence has to be considered for admissibility, recording of evidence and appreciation of evidence.
8.   It should be produced from proper custody.  Source and manner of acquiring the

CD and authenticity of contents has to be proved.

1. Person who has occasion to hear the voice has to be examined.

 

1. Voice has to be identified and accuracy of the recording has to be proved and

possibility of erasing conversion, correctness, authenticity etc has to be considered.

1. Other party has to give full opportunity to test the genuineness of the conversion.
2.  The conversion should be relevant, identification of the person has to be made by

or through witness any other person who was present at the time of

recording and if other side  denies then may identified through expert from forensic

science.

1. May asked to other side to admit or deny the voice, picture etc.
2.  Burden is prove that it is not tampered and it is accurate.
3.  It can be used in cross examination of witness.
4.  Application can be moved to take sample voice of the party to send for forensic.

In forensic science, the time, frequency and intensity of speech sound waves which

forms graphs has to be compared with the disputed sound by Spectrograph machine.

For CD the forensic report certificates whether there is tampering or editing and

gives quality of sound, audio video may be required.

17. In video CD the picture quality, light, audio etc., persons can be identified from it.

In criminal case it requires sealing of CD etc to keep it in safe custody so as to play before the      court at the time of trail.

Relevant Case laws :-

Jagjit Singh –vrs—State of Haryana 2006(11) SCC1

Mrs. Havovi Kersi Sethna—vrs—Mr.Kesri Gustad

Sethand by Bombay High court in Civil Suit No.16 of 2008

Pootholi Damodaran Nair—Vrs–Babu V.K.2005 (2) ILR 145 Kerla High Court.

A. Soundararajan—vrs—P.Thangavel Madras High Court 24 November 2008.

% Reserved on 25^th May 2012—vrs–State Delhi High Court dated 17 July 2012.

SMS (Short Message Service) ( points to prove)

1.         From which mobile/device, it was send ?

2.         Phone call/sms records has to be proved.

3.         The service provider has to establish the call and sms record. IME (15 digit number

-first six are approval of handset, next two for model of handset, next six serial

number  of handset but in GSM last number is ZERO) number with calling by SIM (depend         upon policy of government)

4.         From whom it was seized, who possess it and who was using it.

5.         If message are in mobile then print out  text.

6.         Communication with the persons with the mobile may be relevant.

7.         For SIM , whom it was activated, plan pre or post paid.

8.         Summary statement and call history from the service provider for SIM.

1. If number is called on land line then whether caller ID facility is there.  There         should be evidence from the service provider about providing caller ID.
2. In a trial computer generated bill does not require certificate under section 65B.

Relevant Case laws:-

Pravin Mahajan Case, generally court have not required direct evidence that the defendant entered the information into the computer or electronic device but the court have required circumstantial evidence.  Admitted print out of test message information that only the sender would know (for example the recipient’s nickname or details of a recent interaction between the sender and recipient).  Other circumstances include subsequent actions by the sender consistent with the electronic writing.

–Dheeraj Singh —vrs—State 2005(83) DRJ 255

–Kum. Shubha @ Shubhashankar—vrs–State of Kernataka 4^th November 2010 (Kernataka High Court)

–Vadafone Essar Ltd—vrs–Raju Sud, Bopmbay High Court dated 22^nd November, 2011.

 

Contents of Mobile Conversion

Relevant Case law:-

State (NCT of Delhi)–Vrs–Navjot Sandhu AIR 2005 SC 3820:- call records have to be proved.  Print out from service provider is required.

 

CCTV(Closed circuit Television):-(points to prove)

1.         Identification of person, location, disclosure of data, to verify existence of

relevant data.

2.         It should not be edited, tampered etc.

3.         The instrument has to be proved, if converted into VCD then said fact has to be

proved.  Affidavit of person who is incharge of CCTV

Relevant case law:-

–G. Shiril Saroj and others—vrs– Vinay Kanodia Delhi High Court 1^st March 2011.

—Ex. Const. Mukesh Kumar –vs—UOI Delhi High Court dated 5^th August 2011.

ATM

Relevant case law:-

Shri. P.Padmanabh S/o Papanna –Vrs—Syndicate Bank Limited reported in AIR 2008 Kant 42

It was  a case of plaintiff that there was malfunctioning of ATM machine that link  between the    ATM machine and computer got snapped and therefore the ATM machine allowed withdrawal   of amount.  Bank failed to prove correctness of entires in the account of other side.

—Moti@ Mohit –Vrs—State, 31 October, 2011 Delhi High Court.

–Niraj Kumar –Vs– Union Bank of India Bombay High Court dated 19^th October 2007:Changing liked account number from 15 digits to 16 digits in the ID without permission or knowledge of his superior.  It shows the malafide intention to withdraw the amount.

 

VIDEO CONFERENCING

Relevant Case laws:-

State of Maharashtra—Vrs—Dr. Praful B. Desai 2003(4) SCC 601 : Video conferencing to examine the witness is permissible.  Precautions must be taken to identify the witness and ensure the accuracy of the equipment.

R. Sridharan—Vrs—R. Sukanya Madras High Court dated 30^th March 2011: Accused and pleader can see the witness as clearly.  Demeanor can be observed.  Witness can be confronted with the documents and other materials or statement.  Charge can be framed through V.C-228.

 

Digital camera photo (points to prove)

1.         It is image without film or paper.

2.         Image may be degrade or altered, intentionally or accidentally.

3.         Integrity is always open to question.

4.         Printed copy is not necessary, it can be visualized on monitor but it is desirable to

make document on record.

5.         It has to be filed with affidavit of section 65A or section 90A of Evidence Act

(in case of 5 years old)

6.         Its microchip, CD etc where it was preserved for first time has to be produced.

7.         The most important requirement is authentication. Unless the photograph is

admitted by the other party, then the party who seek to introduce the photograph

into evidence must produce evidence that the photograph is accurate and correct.

 

8.         If possible then attach digital signature to the photo (but it is not rule and it is for

safety to prove it)

9.         In any way the original image has to be saved in original format.

10.       In case the image is edited or enhanced then new edited image has to be saved with

another name to avoid by replacing/overwriting over original image.

11.       Oral evidence of person can be produced who saw scene while taking photo.

Evidence of photography colour lab.

1. The photograph machine description its mega pixel etc has to be disclosed.

———End——-

By:- Salkute