Friday, 15 May 2020

How to prove Email sent by accused in Criminal prosecution?

Electronic Mails

62. We will now turn to the electronic mails which the prosecution has relied on. It has sought to prove this evidence by relying on the testimonies of PW 132, the expert from the West Bengal Electronics Ltd. (Webel), PW 118, the wireless operator and the I.O. According to these witnesses, Akib Ali disclosed his e-mail identities and passwords in their presence in the computer room at Bhabani Bhawan (the C.I.D. headquarters). They claim to have downloaded these e-mails from Akib Ali's e-mail account. The e-mails were then printed in their presence. All these printed e-mails have been signed by the aforesaid witnesses. It has been noted on these e-mails that Akib Ali refused to endorse the printed copies of the mails. Under Section 88A of the Evidence Act the Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed in the computer for transmission. However, the Court cannot draw any presumption about the person who sent the message. The term 'originator' has been defined in the Information and Technology Act, 2000 under Section 2(za) as a person who sends, generates, stores or transmits any electronic message; or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary. Thus on analysing Section 88A of the Evidence Act and the relevant provisions of the Information and Technology Act, it is apparent that the Court may presume the veracity of the message fed into the computer for transmission by the originator through his mail server to an addressee, that is, the person who is intended by the originator to receive the electronic record and does not include any intermediary. However, this is a rebuttable presumption. Besides, no presumption can be drawn about the person who has sent such a message. Therefore, even if we accept the fact that these e-mails have been downloaded as stated by the Webel expert or sent by using the e-mail address of Akib Ali, it was necessary for the prosecution to prove that Akib Ali was in fact the originator of these e-mails. The disclosure, if any, made by Akib Ali of the e-mail address and password would have to be made under Section 27 of the Evidence Act. PWs 118 and 132 have both stated that Akib Ali has disclosed his e-mail identities and passwords in their presence. They have signed the seizure list under which the emails accessed from these accounts and printed have been seized. Therefore, in our opinion, these e-mails are admissible in evidence.

63. The learned Counsel for Akib Ali submitted that there was no certification of the e-mails by the Certifying authority as mandated by Section 65B of the Evidence Act and therefore these e-mails are not admissible. 
64. The learned Counsel for the State has relied on the judgment of the Delhi High Court in the case of Rakesh Kumar and Ors. v. State reported in MANU/DE/2004/2009 : 183 (2009) Delhi Law Times 658. The Delhi High Court dealt with call records and the question as to whether they were genuine. After considering the provisions of the Evidence Act and the Information Technology Act, the Court observed as follows:

198. Sub-section (1) of Section 65B makes admissible as a document, paper print-out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfillment of the conditions specified in Sub-section (2) of Section 65B. Following are the conditions specified by Sub-section (2):

a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;

b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer;

c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;

d) Information reproduced is such as is fed into computer in the ordinary course of activity.

199. Under Sub-section (3) of Section 65B, Sub-section (1) and (2) would apply where single or combination of computers, is used for storage or processing in the regular course of activities and the computers used shall be construed as a single computer.

200. Under Sub-section (5), information shall be taken to be supplied to a computer by means of an appropriate equipment, in the course of normal activities intending to store or process it in the course of activities and a computer output is produced by it whether directly or by means of appropriate equipment.

201. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Sub-clause "d" of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry cannot be moved to the court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print out. Sub-section (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Sub-section (2). Thus compliance with Sub-section (1) and (2) of Section 65B is enough to make admissible and prove electronic records.

202. Sub-section (4) of Section 65B provides for an alternative method to prove electronic record. Subsection (4) allows the proof of the conditions set out in Sub-section (2) by means of a certificate issued by the person described in Sub-section 4 and certifying contents in the manner set out in the sub-section. The sub-section makes admissible an electronic record when certified that the contents of a computer printout are generated by a computer satisfying the conditions of Sub-section 1, the certificate being signed by the person described therein.

65. We are in respectful agreement with the view taken by the Delhi High Court in the aforesaid judgment. Section 65B provides that any electronic data which is printed on a paper, stored, recorded or copied in optical or magnetic image produced by a computer shall be deemed to be a document. The document is admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original, if the conditions mentioned in the Section are satisfied. These conditions are:

(i) the computer output during which period the computer was used regularly to store or process information for the purposes of any activities regularly carried on over the period by the person having lawful control over the use of the computer;

(ii) the electronic record sought to be derived was regularly fed in the computer in the ordinary course of activities;

(iii) the computer was operating properly, continuously without affecting the electronic record or the accuracy of its contents;

(iv) information contained in the electronic record reproduced or is derived in the ordinary course of activities.

66. The section covers those cases where an electronic record is generated from a computer which is used regularly in the normal course of business. A certificate is to be issued in that regard by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities. The documents which are produced in this case are downloaded and printed from an e-mail account of an individual on a computer which was not used by that individual in his normal course of activities. Those documents can be proved by leading evidence to show that the e-mails were downloaded on a computer which was regularly in use by the police and were then printed. A witness would have to testify that such a procedure was carried out. This has been done by the prosecution in this case. It is true that merely sending e-mail from a particular e-mail address would not lead to a presumption that the particular e-mail was sent by the originator, i.e., the person from whose e-mail address a mail emanates. Hacking is not an unknown phenomenon in the world of electronic records. Therefore, the salutary provision in law is that the presumption relating to the genuineness of an electronic message is rebuttable and the Court cannot presume that the message has been sent by a particular person. The prosecution has proved that Akib Ali was in fact the originator of these mails as they were recovered at his instance when he disclosed his e-mail identities and passwords. It was suggested by Mr. Bhattacharya the learned Counsel for the Akib Ali that anybody could create an e-mail account and send mails through that account by impersonating the originator. This is the line of cross-examination of PW 118 and PW 132. However the depositions of these witnesses in the examination-in-chief have not been shaken in their respective cross-examinations. There is no reason to doubt that the e-mails were sent and received by Akib Ali through the e-mail accounts and passwords that he mentioned. It has been suggested in the cross examination of these witnesses that the e-mails were doctored and Akib Ali was not the originator. There is no evidence on record to suggest that the Internet Protocol (IP) addresses found on the e-mails were not those of the accused. Moreover besides denying everything in his statement recorded under section 313 Cr.P.C. Akib Ali has not given any specific explanation about his e-mail accounts and passwords or about the contents of the e-mails. Therefore, in our opinion, these e-mails are admissible in evidence under section 65B of the Evidence Act and have been duly proved.

67. The learned Counsel has then submitted that even assuming the e-mails sent or received by Akib Ali are admissible in evidence unless they are proved like any other document, they cannot be relied on by the Court to convict Akib Ali. He argued that secondary evidence relating to the contents of the documents is admissible if it is proved in consonance with sections 63 and 65 of the Indian Evidence Act. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact true copy of the original. The Court is required to decide the question of admissibility of a document in secondary evidence before accepting the evidence.

68. This submission of the learned Counsel is fallacious. The Indian Evidence Act contains special provisions with regard to proving electronic evidence. These provisions have been inserted by Act 21 of 2000 with effect from 17-10-2000 by way of sections 65A and 65B. Electronic evidence is admissible and is required to be proved only under these provisions. Section 65B starts with a non obstinate clause and appears to be a complete code in itself governing the proof of electronic evidence. The question of proving the printed mails as secondary evidence therefore does not arise.

69. The other criticism of Mr. Bhattacharya about these e-mails is that the PW 118 and PW 132 have spoken about downloading the e-mails from the account of Akib Ali. He submitted that it is not possible to download an e-mail and only an attachment to the e-mail can be downloaded. It is trite that when an e-mail is sent it is initially saved on the server used by the e-mail account holder. It has then to be downloaded on a computer temporarily by the recipient in order to read it. A temporary path is created showing its exact location on the computer. This path is shown at the foot of every e-mail when it is printed. All the e-mails produced by the prosecution show a definite path which is mentioned at the foot of every page evidencing that the e-mail was temporarily downloaded from the server on to the computer which was used to print the same. Therefore the term downloaded is not a misnomer as suggested by Mr. Bhattacharya.

70. As we have held that the prosecution has been able to prove that Akib Ali was the originator of 23 e-mails the contents must be presumed to be correct under section 88A. Apart from this provision the e-mails have been proved under Section 65B. 


C.R.A. 454 and 624 of 2009

Decided On: 14.11.2014

 Abdul Rahaman Kunji  Vs. The State of West Bengal

Hon'ble Judges/Coram:
Nishita Mhatre and Tapash Mookherjee, JJ.

Citation: MANU/WB/0828/2014
Read Full judgment here: Click here

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