In litigation we often come across with situations and circumstances that demand the lawyer to act promptly and with evidences that may require additional steps for them to be able to be admitted in a court of law. But due to either time constraints or unavailability of specific instrument or resources, the extra step is dispensed with by many lawyers, not completely understanding the consequences of the action.
I am obviously talking about
electronic evidence and the certificate under section 65 B of Indian evidence
act 1872 or Section 63(4) of Bhartiya Sakshya Adhiniyam 2023. We see clients
bringing call recordings, WhatsApp screenshots and video and photographic
evidences from sources that they don not know themselves. But the excitement of
having a proof against the opposite party is such that nothing else matters for
them.
If a client brings such evidence,
for which the source cannot be traced back, it is a challenge in itself to
communicate to the client the admissibility of the evidence brought by them. Whoever
breaks the news to them about the evidence which they find perfectly okay against
the other party, they tend to doubt their integrity, morality and knowledge of such
person. Because of this we notice that even though we tell our clients openly
about the inadmissibility and effects of such evidence on their case, some
young lawyer, giving second opinions to the clients may tend to shut their
mouth on this topic and may even encourage the person about the piece of
evidence. If people trust such immoral opinions, they ultimately result in
destroying of their case which could have sustained even without electronic evidence.
Hon’ble Supreme Court has laid
their views on this matter a few times. The Hon’ble Supreme Court vide its
order dated May 04, 2022 in Ravinder Singh @ Kaku Vs State of Punjab has
observed that a certificate under Section 65B(4) of the Indian Evidence Act,
1872 is mandatory to produce electronic evidence, and that submitting oral
evidence in place of such certificate cannot possibly suffice. This means that
a case based on a statement describing an electronic piece of evidence might
not be enough evidence to try the matter against the accused, and convict such
accused. If conviction is achieved based on statement made by the complainant
for an electronic piece of evidence, then it is liable to be set aside by the appellate
court.
Brief Facts of the Case
The Trial Court convicted three
accused in a kidnap cum murder case and sentenced them to death for the offence
punishable under Section 302 read with 120B of the Indian Penal Code, 1860 and
rigorous imprisonment for 10 years and fine of Rs.5000/-each for the offence
punishable under Section 364 of the Indian Penal Code, 1860. Allowing the
appeal filed by two of the accused. The High Court of Punjab and Haryana, vide
judgment dated February 22, 2011, acquitted Anita @Arti (A1) and Ranjit Kumar
Gupta (A3), and partly allowed the appeal filed by Ravinder Singh @ Kaku (A2)
although while setting-aside the death penalty, the High Court of Punjab and
Haryana sentenced him to undergo rigorous imprisonment for 20 years under
Section 302 of the Indian Penal Code, 1860.
Challenging his conviction and
sentence of 20 years imprisonment, the present appellant Ravinder Kumar @ Kaku
filed a Criminal Appeal No. 1307 of 2019 @ SLP (Crl.) 9431 of 2011 before the
Hon’ble Supreme Court. One of the issues raised before the Hon’ble Supreme
Court was whether the call records produced by the prosecution would be
admissible under Sections 65A and 65B of the Indian Evidence Act, 1872.
Judgement By Hon’ble Supreme Court
The Hon’ble Supreme Court
observed that the requirement for certification of electronic evidence has
indeed not been complied with by the prosecution as contemplated under the
Indian Evidence Act, 1872. The uncertainty of whether Anvar P.V. vs P.K.
Basheer & Ors (AIR 2015 SUPREME COURT 180), occupies the field in this area
of law or whether Shafhi Mohammad v. State of Himachal Pradesh (SLP(Crl.)No.2302
of 2017) lays down the correct law in this regard has now been conclusively
settled by the Hon’ble Supreme Court by the judgement dated July 14, 2020 in
Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal (CIVIL APPEAL NOS.
20825-20826 OF 2017).
The Hon’ble Supreme Court
observed that the electronic evidence produced before the High Court should
have been in accordance with the statute and should have been complied with the
certification requirements for it to be admissible before a court of law. The
Hon’ble Supreme Court further observed that oral evidence in the place of such
certificate, as is the case in the present matter, cannot possibly suffice as
certificate under Section 65B(4) of the Indian Evidence Act, 1872 is a
mandatory requirement of the law. The Hon’ble Supreme Court held that the
circumstantial evidence against the present appellant i.e. A2 does not
conclusively establish the guilt of A2 in committing the murder of the deceased
children. The last seen theory, the arrest of the accused, the recovery of
material objects and the call details produced, do not conclusively complete
the chain of evidence and do not establish the fact that A2 committed the
murder of the children of PW5. Additionally, the argument of the Respondent
that the call details produced relating to the phone used by A1 and A2 have
established that they shared an intimate relationship and that this
relationship became the root cause of the offence is also unworthy of
acceptance.
To conclude, the conviction
according to the High Court of Punjab and Haryana, was found to be
non-conclusive and the evidence supporting the conviction was found to be
marred with inconsistencies and contradictions, thereby making it impossible to
sustain a conviction solely on such circumstantial evidence
Conclusion
In conclusion we can ascertain
that Section 65B of Indian Evidence act or Section 63(4) of Bhartiya Sakshya Adhiniyam
2023 are mandatory provisions. The requirement of production of a certificate to
be produced in support of the electronic evidence produced by the party, may it
be the prosecution or the accused to defend himself, is a mandatory step to
make the evidence admissible in a court of law.
The provision itself uses “shall” everywhere instead of “may” for which it makes it clear that the provisions want the requirement to be fulfilled in order for evidence to become admissible in a court. Any electronic evidence that is based on a statement of the concerned party describing the piece of electronic evidence, cannot become the basis of conviction or acquittal, as the case may be, without the mandatory requirements being fulfilled as per Section 65B of Indian Evidence act or Section 63(4) of Bhartiya Sakshya Adhiniyam 2023.
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Sources/ References :
Ravinder Singh @ Kaku vs The State Of Punjab on 4 May, 2022
Anvar P.V vs P.K.Basheer & Ors on 18 September, 2014
Shafhi Mohammad vs The State Of Himachal Pradesh on 30January, 2018
Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal on 14
July, 2020
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1.
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 of Indian Evidence Act or Section 63(4) of Bhartiya Sakshya Adhiniyam 2023, be Dispensed With For Conviction of Accused?){kind=link}
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