Burden of Proof in Electronic Evidence

Introduction

Electronic evidence refers to information stored or transmitted in digital form, such as emails, WhatsApp messages, CCTV footage, call recordings, call-detail records, photographs, videos, computer files, GPS data, social-media posts and data stored on mobile phones or servers.

The burden of proof in cases involving electronic evidence generally remains on the party who relies upon the electronic record to establish a fact. However, electronic evidence has an additional requirement: the party must establish its authenticity, reliability, source and manner of production.

Under the former Indian Evidence Act, 1872, Sections 65A and 65B specifically governed electronic records. The corresponding provisions under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) are principally Sections 61–63, with Section 63 dealing with admissibility of electronic records and certification requirements.

The Supreme Court has repeatedly emphasized that electronic evidence is particularly vulnerable to alteration, manipulation and tampering, making proof of authenticity especially important.

Meaning of Burden of Proof

The burden of proof means the obligation of a party to establish the facts upon which it relies.

In a criminal case, the prosecution ordinarily bears the burden of proving the guilt of the accused beyond reasonable doubt. Merely producing a computer printout, CCTV recording, WhatsApp conversation or call recording does not automatically establish that the material is genuine.

The party relying upon electronic evidence generally has to demonstrate:

1. Existence of the electronic record
2. Relevance of the record
3. Authenticity and integrity
4. Source of the record
5. Manner in which it was generated or obtained
6. Continuity and reliability of the electronic data
7. Compliance with the applicable statutory requirements for secondary electronic evidence.

Primary and Secondary Electronic Evidence

A critical distinction is between original electronic evidence and a copy or computer output.

For example:

• A person produces the original mobile phone containing the relevant message or recording.
• A party produces a printout of an email.
• A party produces a pen drive containing copied CCTV footage.
• A party produces a screenshot of a WhatsApp conversation.

The legal requirements can differ depending upon how the electronic record is produced.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the Supreme Court clarified that when the original electronic device containing the information is itself produced and properly proved, a certificate under Section 65B(4) of the old Evidence Act is not required in the same manner as for secondary electronic evidence. Where the information is produced through a computer output from a system or network, the statutory certification requirement becomes important.

Important Requirements for Proving Electronic Evidence

1. Authenticity

The party relying upon electronic evidence must establish that the record is what it is claimed to be.

For example, if a party relies on a WhatsApp message, it may have to establish:

• who sent it;
• who received it;
• from which device/account it originated;
• whether the record has been altered;
• and how the copy was obtained.

2. Integrity

The party should be able to demonstrate that the electronic material has not been manipulated or altered.

This is particularly important with:

• CCTV recordings;
• photographs;
• audio recordings;
• videos;
• emails;
• computer files; and
• call records.

3. Source

The source from which the electronic record was obtained can be significant.

For example, a CCTV recording obtained directly from the relevant security system is generally easier to authenticate than an unexplained video copied from an unknown source.

4. Certificate Requirement

Under the old Evidence Act, Section 65B(4) required a certificate for relevant forms of secondary electronic evidence.

In Anvar P.V. v. P.K. Basheer, the Supreme Court treated the Section 65B certificate as an important statutory requirement for secondary electronic evidence. The certificate was intended to establish matters concerning the computer/system and the manner in which the electronic output was produced.

The principle was subsequently authoritatively reaffirmed in Arjun Panditrao Khotkar.

Burden of Proof and Section 65B

The burden is not simply to place an electronic document before the court. The party must satisfy the applicable legal conditions for its admissibility.

The Supreme Court in Arjun Panditrao Khotkar held that the certificate requirement under Section 65B(4) was a condition precedent for admissibility of secondary electronic evidence, while also clarifying that such certificate is unnecessary where the original electronic record itself is produced in the appropriate circumstances.

The Court also clarified that a party should not necessarily suffer merely because the relevant device or computer system is in the possession of the opposite party. The court can facilitate production of the necessary certificate where appropriate.

Burden of Proof in Criminal Cases

In criminal proceedings, the prosecution carries the principal burden of proving the accused's guilt beyond reasonable doubt.

Electronic evidence may form:

• the primary evidence connecting the accused to an offence;
• corroborative evidence;
• circumstantial evidence; or
• evidence establishing the presence, communication or conduct of a person.

However, the prosecution cannot simply rely upon an electronic record without establishing its evidentiary foundation.

If important electronic evidence is unreliable, unauthenticated or inadmissible, the prosecution may fail to establish the necessary link between the accused and the offence.

Burden of Proof in Civil Cases

In civil proceedings, the party asserting a particular fact generally bears the burden of establishing it according to the applicable standard of proof.

For example, in a dispute involving:

• an electronic contract;
• email communications;
• electronic payment;
• digital signatures;
• online transactions; or
• computer-generated business records,

the party relying upon those records must establish their authenticity and evidentiary reliability.

The court may also consider surrounding circumstances, conduct of the parties and other documentary or oral evidence.

Six Important Case Laws

1. Anvar P.V. v. P.K. Basheer

(2014) 10 SCC 473

This is one of the most important Supreme Court judgments concerning electronic evidence.

The Supreme Court held that electronic records are governed by the special statutory procedure concerning electronic evidence. For secondary electronic evidence, compliance with Section 65B was required.

The judgment rejected the earlier approach under which ordinary provisions concerning secondary documentary evidence could be freely used to prove electronic records.

Principle:
Secondary electronic evidence must satisfy the statutory requirements applicable to electronic records, including the certificate requirement under the then Section 65B(4).

2. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal

(2020) 7 SCC 1

This is the leading authority after Anvar P.V.

The Supreme Court reaffirmed that the certificate contemplated by Section 65B(4) was mandatory for the relevant category of secondary electronic evidence.

The Court also clarified an important exception: where the original electronic device itself is produced and proved, the certificate is not required in the same way.

The judgment also overruled the contrary position expressed in Shafhi Mohammad and treated Tomaso Bruno, to the extent inconsistent with Anvar, as not laying down the correct law.

Principle:
The burden concerning admissibility of secondary electronic evidence must be discharged according to the statutory procedure.

3. Sonu @ Amar v. State of Haryana

(2017) 8 SCC 570

The Supreme Court considered an objection concerning the admissibility of electronic evidence.

The case is particularly significant concerning the timing of objections to electronic evidence. The Court discussed the effect of failing to raise an appropriate objection at the proper stage.

The judgment also recognized the development of the law from Navjot Sandhu to Anvar P.V. concerning certification of electronic records.

Principle:
A party relying upon electronic evidence must understand the distinction between an objection to the mode of proof/admissibility and an objection concerning the inherent relevance or reliability of evidence.

4. Tomaso Bruno v. State of Uttar Pradesh

(2015) 7 SCC 178

This case involved CCTV evidence.

The Supreme Court emphasized the increasing importance of scientific and electronic evidence in criminal investigations. CCTV recordings and other electronic material can be highly significant in establishing events surrounding an offence.

However, the later larger-bench decision in Arjun Panditrao Khotkar clarified the legal position concerning Section 65B and held that Tomaso Bruno, insofar as it conflicted with the law laid down in Anvar, did not represent the correct legal position.

Principle:
Electronic evidence can be extremely important, but its admissibility must comply with the applicable statutory requirements.

5. Shafhi Mohammad v. State of Himachal Pradesh

(2018) 2 SCC 801

The Supreme Court had held that in circumstances where a party was not in possession of the electronic device, the requirement of producing a Section 65B certificate could be relaxed.

However, this approach was subsequently rejected by the larger Bench in Arjun Panditrao Khotkar.

The Supreme Court expressly held that Shafhi Mohammad did not lay down the correct law.

Principle:
The absence of control over the electronic device does not automatically eliminate the statutory requirements; appropriate procedural mechanisms may be used to obtain the necessary certificate.

6. Vikram Singh v. State of Punjab

(2017) 8 SCC 518

The Supreme Court considered a tape-recorded conversation.

The Court distinguished between an original recording and secondary evidence of that recording. Where the original cassette containing the recording was itself produced, the Court held that the Section 65B certificate was not required merely because the evidence was electronic in nature.

Principle:
The requirement of certification depends upon whether the electronic material being produced is original electronic evidence or secondary evidence requiring statutory authentication.

Practical Examples

Example 1: WhatsApp Screenshot

A person produces only a screenshot of a WhatsApp conversation.

The opposing party denies the conversation.

The court may examine:

• the device;
• the original conversation;
• account details;
• authenticity;
• possibility of manipulation;
• manner of extraction; and
• applicable certification requirements.

The mere production of a screenshot does not automatically establish its truth.

Example 2: CCTV Footage

A company produces CCTV footage showing an employee allegedly committing misconduct.

The employee disputes the recording.

The employer may need to establish:

• the CCTV system;
• the relevant camera;
• date and time;
• storage system;
• extraction process;
• continuity/integrity of the recording; and
• applicable certification requirements.

Example 3: Email

A party relies upon an email allegedly sent by the opposing party.

The court may consider:

• sender's email address;
• recipient;
• metadata;
• server records;
• surrounding correspondence;
• device from which it originated; and
• evidence establishing authenticity.

Important Distinction: Admissibility vs Weight

This distinction is extremely important.

Admissibility asks:

Can the court legally receive this electronic record as evidence?

Weight asks:

How much importance should the court attach to that evidence?

An electronic record may be admissible but still receive little weight if its authenticity or reliability is doubtful.

Conversely, highly reliable electronic evidence may be excluded if the applicable legal requirements for its admission have not been satisfied.

Current Legal Position

The Bharatiya Sakshya Adhiniyam, 2023 has replaced the Indian Evidence Act, 1872 for current proceedings, so present-day cases must be examined under the corresponding BSA provisions and transitional rules.

The Supreme Court's established principles concerning electronic evidence remain particularly important: authenticity, integrity, source, proper mode of proof and statutory certification are central to establishing electronic records.

Conclusion

The burden of proof in electronic evidence is not satisfied merely by producing a digital file, screenshot, recording or printout. The party relying on the evidence must establish its relevance, authenticity, integrity and legally acceptable mode of proof.

The most important authorities are Anvar P.V., Arjun Panditrao Khotkar, Sonu @ Amar, Tomaso Bruno, Shafhi Mohammad and Vikram Singh. Among these, Arjun Panditrao Khotkar is the principal authority for understanding the present Supreme Court position on certification and admissibility of electronic evidence.