01 July 2020

Deposition of witness and certificate u/s.65B is sufficient to prove electronic evidence

How to prove photos and screenshot sent by one person to another? (Mode of proof)

Can snapshot of chat from a mobile handset be read in evidence without producing that mobile handset?

Matrimonial dispute - divorce sought by husband - Ground of adultery - Husband received photos, telephonic conversation and snapshot of chat between wife and her lover - Electronic evidence - Mode of proof - compliance to be made 

Held: Witness produced certificate u/s.65B and deposed that he had taken the print outs from the mobile phone, deserves to be read in evidence.

   Learned counsel for the wife contended that the photographs placed on the file as Annexures A-1 to A-8, do not stand duly proved on the record as required under Section 65-B of the Indian Evidence Act, 1872 (for short 'the Act of 1872') and in support of this contention, he relied upon Anvar P.V. vs. P.K. Basheer and others, 2015(1) SCC (Civil) 27, wherein the Hon'ble Apex Court observed that "in case of CD, VCD, chip, etc., the same would be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, was inadmissible."[Para No.9]

Deposition of witness and certificate u-s.65B is sufficient to prove electronic evidence

   However, we do not find this contention to be tenable because PW-4 Sunil Kumar, the photographer, tendered the original certificate under Section 65B of the Act of 1872 on the record as Ex.PW-4/A and he also specifically deposed that he had taken the print out of the photographs, i.e. Annexures A-1 to A-8, from the internal memory of the mobile phone brought to his shop by the husband. Moreover, in a subsequent verdict, as rendered by the Hon'ble Supreme Court in the case titled as State by Karnataka Lokayukta Police Station, Bengaluru vs M. R Hiremath, 2019 (3) SCC (Cri) 109, it has been held while referring to the above- discussed observations, as made in Anvar P.V.'s case (supra), that :-

"14. The provisions of Section 65B came up for interpretation before a three judge Bench of this Court in Anvar P.V. v. P.K. Basheer 2014(4) R.C.R.(Civil)504 : (2014)10 SCC473. Interpreting the provision, this Court held :
'Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.' Section 65B(4) is attracted in any proceedings "where it is desired to give a statement in evidence by virtue of this section".
Emphasising this facet of sub-section (4), the decision in Anvar holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence. This is clarified in the following extract from the judgment :
"Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. 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.' (emphasis supplied)."

   In view of the afore-discussed observations, it becomes clear that the photographs produced in the evidence as Annexures A-1 to A-8 (32 photographs including snap-shots of chat) deserve to be read in evidence. It being so, it is explicit that the observations, as made by the Hon'ble Supreme Court in Anvar P.V.'s case (supra), do not further the cause of the wife.[Para No.10]

Punjab-Haryana High Court

Parveen Kumari
Satish Kumar

Decided on 29/06/2020

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