ADMISSIBILITY OF FACT

June 22, 2021Criminal Laws, Latest on Laws, Law Articles, Lawyers, Legal InformationahlawatgauravNo Comments

In order to analyze and decide whether a said piece of evidence shall turn out to be fruitful in concluding a case; the admissibility of fact plays a crucial role. Should the evidence be admissible before the court is a question of law and; is to be decided by the Judge as per Section 136 of the Indian Evidence Act. Facts which may not be logically relevant may at times be admissible in courts. Since admissibility is more concerned with law and not logic. Segregation of relevant and irrelevant facts is important so that the whole evidence does not become inadmissible. Be it civil or criminal trials the rules of admissibility of evidence remain the same in both cases.

Section 65

Section 65 of the Indian Evidence Act mentions the cases where secondary evidence relating to documents may be advanced.

Any document which is not the original document is regarded as a secondary document. Advancing Secondary Evidence is an exception to the general rule. In the case where the original itself is found to be inadmissible because of the failure of the party; who files it to prove it to be valid, the same party shall not be entitled to introduce secondary evidence of its contents. Earlier notice was required to be given before giving secondary evidence.

Owing to the age of digitization and rapid increase in reliance on computerized economy and records in the judicial process; India through its apex court has aptly brought in responded to the challenges and have held that; it shall not be mandatory to have a certificate in order to make electronic evidence mandatory “wherever interest of justice so justifies”. This step has had an impact on the judiciary especially on the criminal trials where reliance on CCTV footage, call details, and other means of electronic media is being relied upon. It must be noted that the value of Secondary evidence is not as that of primary evidence. Electronic records being more susceptible to tampering, alteration transposition, excision, etc. Without such safeguards, the whole trial based on proof of electronic records can lead to the travesty of justice.

Section 65-B

Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act; the question would arise as to the genuineness thereof and in that situation; the resort can be made to Section 45A – opinion of examiner of electronic evidence.

However, all the preceding judgments were overruled by the recent judgment of the Supreme Court in the case of Sonu v. State of Haryana[1]whereby the court upheld that an electronic record through means of secondary evidence shall be admissible as evidence.

In the said case the apex court upheld the conviction of the main accused by dismissing his criminal appeal and; thereby the accused was held guilty for committing the offence of kidnapping and murdering as per the provisions of the Indian Penal Code. In the said case the PPO had relied on the CDRs of the cellular phone of the accused Sonu in order to prove the guilt beyond a reasonable doubt. This piece of evidence was regarded as crucial evidence for which the accused had in its appeal argued that the same evidence should not be considered as they were inadmissible, due to failure of compliance with the requirements under Section 65-B of the Indian Evidence Act, 1872[2]