PROCEDURES FOR ADMISSIBILITY OF VIDEO CLIP AS EVIDENCE
Generally, in evidence which is admitted at court, it must be relevant, material, and competent. For that it must be considered relevant, it must have some reasonable tendency to help prove or disprove some fact.
Primary Evidence as well as Secondary Evidence
Video Clip is a kind of electronic record that may be admissible as Primary Evidence as well as Secondary Evidence. For a CD/DVD/Hard-Drive/Memory Chip/Pen Drive containing a Video Clip to be Primary Evidence, the video which is to be presented to the court for Evidence must be generated or recorded in that CD/DVD/ Hard-Drive/Memory Chip/ Pen Drive at the source. In other words, original media should be stored or recorded directly in that CD/DVD/hard drive/Hard-Drive/Memory Chip/ Pen Drive that was self-generated and created without any human intervention.
When any such Video Clip is transferred or copied to another electronic device such as CD, DVD, Hard-Drive, Memory Chip, Pen Drive, etc., with some human intervention, in such scenario such Video Clip will be considered as Secondary Evidence.
Authenticity Test for Secondary Evidence
When a video clip is a Secondary Evidence, it has to pass the test of authenticity, by complying with the conditions under section 65(B) of the Indian Evidence Act,1872. These conditions relate to ensuring the authenticity of Video Clip, reliability, accuracy, and exclusion of the possibility of tampering or manipulation of the evidence, establishing the voice and figure of the Speaker, its accuracy and clarity and appropriate custody, etc.
Section 65B of the Evidence Act details special procedures for making secondary evidence of electronic records admissible in evidence. Sub-section (2) of section 65B of the Evidence Act lists the technological conditions upon which a Secondary Evidence of an original electronic record may be used:
1.At the time of the creation of the electronic record, the computer that produced it must have been in regular use,2.The kind of information contained in the electronic record must have been regularly and ordinarily fed into the computer,
3.The computer was operating properly; and,
4.The duplicate copy must be a reproduction of the original electronic record.
Conditions enumerated under section 65B (2) of the Evidence Act shall also be applicable for such Video Clip which is considered Secondary Evidence.
In Shafhi Mohammad Vs. The State of Himachal Pradesh,(2018) 5 SCC 311, Hon’ble Supreme Court of India has clarified the legal position on the subject of the admissibility of the electronic evidence, especially by a party who is not in possession of the device from which the document is produced is that such party cannot be required to produce certificate under Section 65B(4) of the Indian Evidence Act, 1872. In other words, the Party who is in possession of the device is required to produce a certificate under Section 65B(4) of the Evidence Act.
In Anvar P.V. vs. P.K. Basheer and Others, (2014) 10 SCC 473, Hon’ble Supreme Court of India has observed that under Section 65B (4) of the Evidence Act, there must be following things in a certificate-
(a) The certificate must identify the electronic record containing the statement;(b) The certificate must describe how the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
Procedures for taking possession by Police
Police taking possession of any Electronic Evidence (Copy of Video Clip) should adopt the following procedures so that evidence be admissible in the Court: –
- Police should while obtaining a copy of Video Clip firstly check whether conditions under section 65B (2) of the Evidence Act have been complied with.
- If a copy of Video Clip is provided by a person who is in possession of the Device whether be accused, journalist or any other person, Certificate under section 65B (4) of the Evidence Act be obtained by Police from such person.
- Such Video Clip be transferred in CD/DVD/ Hard-Drive/Memory Chip/ Pen Drive and be sealed and be kept in Safe Custody.
- Video Clip be exhibited in the Case Diary and the contents of the Video Clip be recorded in the Case Diary.
- Sealed Video Clip be sent to Cyber Forensic Lab in order to detect that it is not doctored or tempered and it is accurate.
- After examination of Video Clip by Cyber Forensic Lab as Genuine, the examined Video Clip be exhibited in the Case Diary and report of Cyber Forensic Lab be recorded in the Case Diary.
- Examined Video Clip be submitted in the Court along with the Charge Sheet enclosing report of the Cyber Forensic Lab.