A Judgment On Electronic Evidence

The lynching of a mentally challenged tribal youth in Kerala, a few years back, by a group of people had shocked the conscience of the society. Recently, the High Court of Kerala has rendered its verdict in the case, in the appeals preferred by the convicted accused as well as the appeals filed by the State of Kerala and the mother of the deceased.¹ This judgment provides an interesting study material on electronic evidence. It is a case where the fate of the prosecution, to a great extent, hinged on electronic evidence rather than on oral evidence. How electronic evidence has played a prominent role in determining the guilt of the accused in the case is portrayed by the High Court in the following words:

“Forest officials, shop employees, roadside traders, and local residents appeared before the court, watched the CCTV footage in open court, pleaded ignorance when their images and videos came up on the screen and claimed inability to identify the persons involved. …….. This case also demonstrates, perhaps more clearly than any recent case before this Court, the profound importance of electronic evidence in the administration of criminal justice. Ultimately, the truth regarding what transpired on 22.02.2018 was not preserved by human testimony. It survived because of three CCTV cameras, six mobile phones, a GPS chip embedded in a Xiaomi Mi A1 mobile phone, call detail records stored on servers in Pune, and the forensic analysis undertaken by Government scientists who painstakingly examined those devices………such electronic evidence is admissible, inherently reliable in its essential nature, and capable of sustaining conviction even in the absence of dependable oral testimony. That principle proved decisive in the present case. Without such evidence, several convicted accused would almost certainly have escaped criminal liability, aided by the silence of those who witnessed the incident and chose not to disclose the truth”.

It would be advantageous here to examine how the High Court has dealt with the legal issues relating to the electronic evidence which was produced in the case by the prosecution to prove the guilt of the accused.

Absence of Notification Under Section 79A of the Information Technology Act

One of the principal contentions advanced by the accused in the case was that the electronic and digital evidence relied upon by the prosecution was inadmissible on the ground that scientific examination of such evidence was conducted not by an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000. The forensic analysis of the electronic evidence in the case was conducted in the State Forensic Science Laboratory, Thiruvananthapuram, which was then not notified as an Examiner of Electronic Evidence under Section 79A of the Information Technology Act. The reports submitted by the experts of the State Forensic Science Laboratory on electronic evidence were admitted in evidence and marked by the trial court under Section 293 of the Code of Criminal Procedure, 1973, corresponding to Section 329 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Dealing with the aforesaid contention, the High Court has observed that, Section 79A of the Information Technology Act merely empowers the Central Government to notify a department, body, or agency of the Central Government or State Government as an “Examiner of Electronic Evidence” for the purpose of rendering expert opinion relating to electronic records. Correspondingly, Section 45A of the Indian Evidence Act (Section 39(2) of the Bharatiya Sakshya Adhiniyam) provides that, when the Court has to form an opinion on matters relating to electronic or digital evidence, the opinion of such notified Examiner of Electronic Evidence becomes a relevant fact. The provision only creates an additional statutory mechanism for obtaining expert opinion in relation to electronic evidence. However, neither Section 79A of the Information Technology Act nor Section 45A of the Indian Evidence Act lays down that, in the absence of such notification, the opinion of a qualified scientific expert or the report issued by a Government Forensic Laboratory becomes inadmissible in evidence. No such exclusionary bar is contemplated either under the Information Technology Act or under the Evidence Act. In the absence of a specific statutory prohibition, the Court cannot read into Section 79A of the Information Technology Act a consequence that has not been expressly provided by the legislature.

The High Court has further held that, Section 293 of the Code of Criminal Procedure independently governs the admissibility and evidentiary use of reports issued by Government Scientific Experts. The provision specifically recognises reports issued by Directors, Deputy Directors, and Assistant Directors of Central and State Forensic Science Laboratories as admissible evidence in criminal proceedings. Section 293 of the Code does not make such admissibility conditional upon a notification under Section 79A of the Information Technology Act.

The High Court rejected the contention raised by the accused, by holding that “once the Court is satisfied that the evidence is relevant and has been produced through a competent scientific expert, its admissibility cannot be rejected merely on the ground that the laboratory had not been separately notified under Section 79A of the Information Technology Act”. The High Court, ultimately, held that the absence of notification under Section 79A of the Information Technology Act does not render the electronic and digital evidence inadmissible, nor does it vitiate the reports issued by the State Forensic Science Laboratory.

Even earlier, the High Court of Kerala had taken the same view with regard to admissibility of the report of an expert on electronic evidence in the absence of notification under Section 79A of the Information Technology Act.² The Allahabad High Court has also taken more or less a similar view in this regard.³

In this context, it is to be noted that, the Supreme Court has recently observed that, when the two sub-sections of Section 39 of the Bharatiya Sakshya Adhiniyam are read harmoniously, it is possible to hold, in addition to entities notified as Examiner of Electronic Evidence under Section 79A of the Information Technology Act, if the Court is satisfied, on the basis of unimpeachable material, that any other person has special skill and expertise in computer science and cyber forensics, opinion of such person may be held relevant as an expert with regard to electronic/digital record.⁴

Identification of the Accused in Video Footages

The defence had raised a contention in the case that reliance placed by the prosecution upon the video footages retrieved from the CCTV and the mobile phones will not advance its case when none of the prosecution witnesses had identified the accused with precision and spoken about their presence or involvement. In other words, the plea was that the digital footage will not by itself establish the identity of the individuals involved in the incident. However, the High Court adopted the view that the prosecution had managed to establish the connection between the crime and the accused through three independent modes.

A photographer took the photographs of each accused after their arrest. The printed photographs and the compact disc containing them, along with the certificate under Section 65B of the Evidence Act, were proved through the examination of the photographer concerned. These photographs served as the reference standard and it was established that the person shown in the reference photograph was the accused concerned.

The expert at the Forensic Science Laboratory extracted the relevant video footages from all seized devices which included CCTV and mobile phones and then he compared the faces visible in the video footages with the photographs of the accused and identified the individuals who appeared in each file with the time of his appearance. The report of the expert contained the details of the forensic comparison thus conducted by him.

When the CCTV video footage was displayed in the court during the trial, a witness, who was a resident of the locality, who had known the accused for several years prior to the incident, identified the accused who were visible in the video footage by name. He also identified the accused persons in the court. The High Court has remarked that his identification was not that of a stranger but of a local resident recognising individuals he already knew and it was grounded in familiarity and personal knowledge.

In addition to the above, the trial court undertook its own visual assessment. The High Court says that, by viewing the footage and comparing it with the accused persons who were present in the court, the trial court performed its judicial function of evaluating the evidence before it and that it was not an act of expert analysis but a direct observation that served to confirm the consistency of the other evidence.

Ultimately, the High Court has held that, the aforesaid four layers, taken together, formed a coherent and mutually reinforcing framework and they would lead to a single conclusion: the individuals seen in the footage were the accused before the court. The High Court also observed that, the said conclusion does not depend on any single piece of evidence but arises from the convergence of multiple independent sources, making any alternative explanation untenable.

No Need of Narration of the Contents of the Video in the Court

Relying upon a recent decision of the Supreme Court,⁵ the High Court has also held that, once the requirement of Section 65B of the Evidence Act is fulfilled, the video, which is an electronic record becomes an admissible piece of evidence, like a document and it can be seen by the Court to enable it to draw appropriate inferences. It is not the requirement of law that the contents of the video would become admissible only if it is reduced to a transcript in the words of a witness who created the video or is noticed in the video. There is no requirement of each person visible in the footage to step into the witness box and narrate in his own words what is being shown in the video.

Proof of Call Data Records

Call data records of a mobile phone constitute scientific evidence. The Supreme Court has taken the view that such evidence is of a conclusive nature and even a serious discrepancy in oral evidence would have to yield to such scientific evidence.⁶

The defence had raised a contention that the Call Data Records (CDR) and Customer Application Forms (CAF) cannot be relied upon because the Nodal Officers had not deposed before the trial court that such and such calls were made from such and such mobile phones. It was contended that, unless the Nodal Officers explicitly state in the court that particular individuals had made specific calls to particular numbers, the CDR could not be considered.

While dealing with the aforesaid contention, the High Court referred to Section 22A of the Evidence Act, which provides that oral admissions about the contents of electronic records are not relevant unless the genuineness of the record itself is in question. The High Court has held that the contents of an electronic record do not require oral proof and the document speaks for itself and oral narration of its contents is unnecessary unless its authenticity is challenged.

The High Court has further held that, the law does not envisage or require a Nodal Officer to peruse the voluminous call data records and read out each call entry. Once the CDR is proved as genuine, its contents stand on their own. The role of the Nodal Officer is to establish the authenticity of the document and not to narrate what the document has already recorded.

The High Court finally concluded that the prosecution could conclusively establish, through reliable, cogent, and legally admissible electronic evidence, the identity and presence of each of the accused as reflected in the various electronic records produced before the Court. The High Court observed that the electronic evidence produced in the case was authentic and corroborative in nature, mutually consistent and free from any material contradiction or infirmity and the prosecution could successfully prove the identity of each of the accused appearing in the electronic evidence beyond reasonable doubt.

Conclusion

With advancement of technology, digital space has encroached on all spheres of human life. Consequently, evidence in the form of electronic record has become commonplace in all litigation. Physical documents are increasingly replaced with digital records like electronic mails, audio-visual clips etc.⁷

Modern perspectives in criminal investigation, by the integration of scientific and electronic techniques with the traditional investigation methods, ensure not only efficiency in the investigation but also transparency and accountability in that process. With the increasing impact of technology in everyday life, in the coming years, in most of the cases dealing with grave offences, the prosecution as well as the defence would be relying upon electronic evidence to establish their own versions. The practice of relying upon the memory of witnesses would give way to reliance upon scientific as well as electronic evidence.

The Bharatiya Nagarik Suraksha Sanhita has introduced use of technology at all stages, from the registration of cases and crime scene visit to the completion of the trial of a case. A significant move has been made by the integration of technology and forensic science into investigations, aiming at modernizing the criminal justice system in the country, so as to ensure improvement in the quality of evidence, thereby safeguarding the rights of both the accused and the victims. The Bharatiya Sakshya Adhiniyam also contains special provisions regarding electronic and digital records and evidence. Section 57 of the Bharatiya Sakshya Adhiniyam contains special provisions, providing the circumstances under which electronic or digital record could be treated as primary evidence.

The law on electronic evidence is still at its nascent stage in our country. There are only a very few judgments of the constitutional courts which offer a lucid exposition of the law on electronic evidence. Most of the judicial officers in the district judiciary find it very difficult to comprehend even the fundamentals of the law on this topic. Viewed in such context, the judgment of the High Court (which explains how the contents of video footages can be proved in the court and how electronic evidence could be used to establish the identity of the persons involved in an incident), offers an opportunity to the students of law and also the experts in the field to ponder over the principles stated therein and to contribute to the development of law on electronic evidence.

References: 

1. 2026 LiveLaw (Ker) 286.
2. Anu Shanthi v. State of Kerala: 2024 SCC OnLine Ker 2352 and Shadanandhan v. State of Kerala: 2025 SCC OnLine Ker 14058.
3. Shyam Sunder Prasad v. Central Bureau of Investigation: 2022 LiveLaw (AB) 280
4. Pune Bar Association v. Union of India: 2026 LiveLaw (SC) 551.
5. Kailas v. State of Maharashtra: 2025 LiveLaw (SC) 914
6. Gajraj v. State: (2011) 10 SCC 675.
7. Pune Bar Association v. Union of India: 2026 LiveLaw (SC) 551.

Author is Former Judge, High Court of Kerala

Views Are Personal.