Digital Evidence: Meaning and Sources

The technological evolution in the 21st century has developed not only in India but the whole world in general. The increased cyber space has increased the risk of crimes like fraud, impersonation, service attacks, and child pornography. Since tangible proof for these crimes is rarely present, the traditional court system, which relies on physical evidence and eyewitness testimony, may only assign blame after looking at this digital evidence.

What is Digital Evidence?

The term “ Digital Evidence” means the information that is transmitted and stored in binary form that can be found in hard disks, mobile phones etc. It can be used for prosecution of various crimes but it is generally associated with E-Crimes.

Digital evidence is described as information and data kept on, received from, or transferred by an electronic device that is useful to an investigation. When electronic devices are taken into custody and secured for inspection, this evidence can be obtained. Digital proof −

• Similar to fingerprints or DNA evidence, is latent (hidden).

• Swift and simple jurisdictional border crossing.

• Can be easily changed, damaged, or destroyed.

• Potentially time-sensitive.

Sources of Digital Evidence

There are various places to find digital evidence, however for the sake of this article, the subject is broken down into three main forensic types of devices −

Various types of crimes typically lend themselves to one gadget over another, and these areas typically have different evidence-gathering procedures, strategies, and issues.

Legal Framework for Digital Evidence

The need for changes to the law relating to information technology and the guidelines for the admissibility of electronic evidence in both civil and criminal matters has arisen as a result of the continuous rise in reliance on electronic means of communications, e-business, and information storage in digital form.

• In order to allow the admissibility of digital evidence, the Information Technology Act of 2000, which was based on the Model Law on Electronic Commerce of the United Nations Commission on International Trade (UNCITRAL), was amended. This also resulted in changes to the Indian Evidence Act of 1872, the Indian Penal Code of 1860.

• The Examiner of Electronic Evidence is covered by Section 79A. As a result of the legislators' belief that a specialized department, body, or agency of the Central Government is required to offer an expert opinion on electronic form of evidence before any court or other authority.

E- Evidence and Its Admissibility

Since electronic papers are so easy to tamper with, their legitimacy has never been completely certain. Investigation agencies are also increasingly having trouble getting such electronic evidence admitted into court. The method used to look into and analyze the data stored on or retrieved from electronic media for the purposes of presentation in a court of law is of utmost importance.

According to Section 65 B (4) of the Act, a certificate must include the information listed below for evidence admissibility: It should comply with Section 65B(2), meaning that the computer producing the result was regularly used and was functioning properly to retain information during routine tasks, and that it was generated to the best of the officer-in-knowledge charge's and ability. The related electronic record for which the certificate is given and the manner in which it is generated should be identified.

The Supreme Court accepted the responsibility of interpreting the law in regard to the legitimacy and admission of electronic evidence by rendering decisions in various matters from time to time. When addressing Section 65 B(4) of the Act in the recent case of Shafhi Mohammad v. State of Himachal Pradesh, The Apex Court held that Sections 63 and 65 remain in effect when electronic evidence is submitted by a person who is not in possession of the device from which the evidence is collected and that the procedure outlined in those sections can be followed.

Additionally, a certificate described in Section 65B is not required for the admissibility of electronic evidence because the party presenting it was not in possession of the evidence-gathering apparatus. As a result, a party cannot be requested to give a certificate for the admissibility of electronic documentary evidence under section 65B (4) of the Act.

Conclusion

The admissibility of the secondary e-evidence must be determined in accordance with Section 65B of the Evidence Act's restrictions and the legislation established by the most recent rulings of the Supreme Court and numerous other High Courts, as was previously mentioned. Clearly, the case cannot be maintained by a simple legal citation of the e-evidence. The errors in the process brought on by the inclusion of e-evidences need to be fixed as soon as possible.

• A few questions remain unanswered regarding the status of the secondary electronic evidence that was retrieved from the accused, including whether the certificate required by Section 65B of the Evidence Act can be obtained and whether the accused can be called as a witness against himself.

• A few problems with the current rules governing the admissibility of various types of electronic evidence documents still need to be remedied. Although the courts have occasionally addressed the matter, the Legislature must take action.

FAQs

Q1. How reliable is digital evidence?

Ans. Digital forensics is a field that gives decision-makers a trustworthy understanding of the digital traces on any device that is being investigated, but it cannot guarantee that the methods employed to carry out this procedure always yield conclusions that are factually accurate.

Q2. How does digital evidence work?

Ans. To begin with, detectives search for evidence on technological devices and save the information to a secure disc. After that, they examine and record the data. When it's ready, they hand over the digital evidence to the police to aid in a crime's investigation or show it in court to aid in a criminal's conviction.