1. Introduction
It has been seen that cyber crimes may either be committed with the aid of the computer or computer system computer system networks, or through the computer, computer system, computer networks etc. The classic examples of the earlier can be cyber assisted murders, bank robberies or simple robberies, sextortion, shadowing and stalking etc. For the later, classic example can be attacking the government websites and defacing them, unauthorized access to personal data or public data, misusing the same, revenge porn, phishing, job scam, cyber terrorism, cyber stalking, voyeurism etc. in both the cases, various electronic devices computers may be used; for example, desktop or laptop computers, smart phones etc. With the advent of technology, several other devices like the Google glass (It is a wearable device prepared by Google which is attached with android app and also a camera), are also being used to penetrate privacy of individuals.
Whenever any computer or computer device is used for committing any crime, it becomes essential to get the digital evidence for prosecution. Unlike real life physical crimes where evidences may be collected by way of finger prints, blood stains or any other mechanism, in cases of cyber crimes, collection of evidences is not easy. It needs trained police officers to collect the digital evidences and also to analyze the same for getting the correct track. Often it has been seen that digital evidences may lead to geo-location of the offender, time of committing the crime and target victims, but it may not be able to get the actual persons as the evidences may show only the person who owns the device and not the persons who may have used it for the purpose of committing the crime. In such cases, it becomes a Herculean task for establishing the identity of the perpetrator. Further, it may also be seen that the police may ask the victim (in case it an attack on the individual) to collect the evidences. The victim may never know what evidences may be collected and how. There have been several cases where the device like the desk top or laptop computer or the smart phone may have been ceased by the police for some offences, but no accused could have been arrested due to jurisdictional issues. Information technology Act, 2000 brought in several changes in related laws including the Indian evidence Act which even though was drafted almost a century ago, was amended to suit the needs of digital crimes,
2. Admissibility of digital evidence
S.3 of the Indian Evidence Act explains the definition of evidence as all documents including electronic records produced for the inspection of the court. The term digital evidence is explained by Casey (2004) as "Digital evidence or electronic evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial".
However, before accepting the digital evidences courts must verify whether the same is relevant evidence or authentic evidence or hearsay evidence. As such digital evidences may also include electronic records. The term electronic record has been explained by the Information Technology Act, 2000 amended in 2008) as follows: Electronic record means data recorded or data generated, image or sound stored, received or sent in an electronic form, or micro film or computer generated micro fiche.
" The question is whether the electronic record is recognized as evidence and if so, then whether it can be admissible evidence or not. The first question is answered by S.4 of the information Technology Act which states as follows: "Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference."
The admissibility of digital record or evidence is dealt with S.65B of the Indian evidence Act which states as follows:
"(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original fact stated therein or which direct evidence would be admissible.
“(1) Notwithstanding anything contained in this Act, any information contained
in an electronic record which is printed on a paper, stored, recorded or copied in
optical or magnetic media produced by a computer (hereinafter referred to as the
computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein or which direct evidence would be admissible.
(2) The conditions referred to in sub-section
(1) in respect of a computer output
shall be the following, viz.
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over
that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic
record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the materiel part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and shall be the following, viz.
(a) the computer output containing st the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the materiel part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
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