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Admissibility of Confessions made by co-accused by means of Electronic Evidence

The advent of social media has ushered in an era of vlogging. Social Media, being inextricably linked to our contemporary lives has become indispensably crucial for keeping in touch with the rest of the world. The growing role of social media in disseminating stories at lightning speed has emanated various questions pertaining to the credence & credibility of voluntarily-disclosed events.[1] Recently, the abhorrence of the crime committed in Udaipur has shocked the conscience of the nation.[2]

The knowledge of the commission of the crime came into the public domain through a video posted on social media, wherein the accused persons not only allegedly beheaded a man but also recorded the encircling events, and in the aftermath, one of the accused in the video broodingly disclosed the commission of the offence by both the accused in the video. Though this incident raises serious apprehensions over the crumbling state of Rule of Law in our society, it also implores revisiting the admissibility of confessional statements made by a co-accused in the light of the law pertaining to the admissibility of electronic evidence.

Confessional Jurisprudence
The law of Evidence in India is governed by the Indian Evidence Act, 1872. The evidentiary jurisprudence qua confessions is trite. Confessions are either the direct admission of the commission of an offence or at any rate admission of substantially all the facts which constitute the offence.[3] Mere suggestions or inferences of commission of crime cannot be considered a confession.[4] Furthermore, a confession in order to be admissible must be made voluntarily, meaning thereby that it must be a statement made of free will and accord of the accused.[5]

S. 24 of the Evidence Act interdicts a confession made by threat, inducement or any promise. Even the procedural law pertaining to recording of the confessions, to prevent the malice under S. 24 of the Evidence Act, mandates that an accused making confessional statement must be informed of the consequences that shall ensue and if he intends to proceed regardless, only then may his statements be recorded.[6]

As regards the confessions made by a co-accused, S. 10 of the Evidence Act provides that where there are reasonable grounds to believe that two or more persons have conspired together to commit an offence, things said or done by any of such persons in reference to their common intention, any time after such thought was first entertained by any one of them is a relevant fact against all of them to both prove the existence of a conspiracy, as well as to show that any such person(s) were party to it.[7]

The purpose underlying the above section is the concept of Agency.[8] Though it is a redundant principle of Criminal jurisprudence that one person is ordinarily not made liable for the acts of another, S. 10 of the Evidence Act carves out an exception to provide that, once it is established that there exists an identity of interest, or, a community of purpose between certain persons, any act done, or statement made by one co-conspirator is held to be the act or statement of other conspirators if such act or statement has any connection to the object of conspiracy.[9]

However, to attract S. 10, there must exist prima facie evidence affording reasonable grounds that lead to the inference that such persons have been involved in a conspiracy.[10] If the above condition is satisfied, only then can the confessional statement made by a co-accused be admitted as evidence during the course of trial. Though the principles regarding confessions made by a co-accused are settled, the admissibility of confessions made through electronic evidence remains at a relatively nascent stage.

Admissibility of Electronic Evidence
Electronic Records have been defined in S. 2(1)(t) of the Information Technology Act and means "data, record or data generated, images or sound stored, received or sent in an electronic form, or microfilm or computer-generated microfiche". Under S. 3 of the Evidence Act, evidence includes inter alia electronic records that are produced for the inspection of the Court.

In tune with the ever-growing reliance on technology, S. 65A & S. 65B were introduced in the Evidence Act by the amending Act of 2000, with the intent to lay a comprehensive code for the use of electronic records as a material piece of evidence without compromising the sanctity of such evidence.[11]

Resultantly, any electronic evidence to be able to be exhibited as admissible evidence before the Court must be in compliance of S. 65B of the Evidence Act.[12]For any electronic evidence to be admissible in the Court of law, it is required to satisfy the 4 conditions stipulated in S. 65B(2) that are:[13]
  • The information must be created by a person who is in regular & legitimate use of the computer resource;
  • Information generated must be supplied to the computer on a daily basis;
  • During the concerned period, the computer must be in working order & if it is out of order for a brief period then it shall not be of such nature to affect the electronic record or accuracy of its content;
  • Data generated must reproduce or be derived from information fed into the computer during its ordinary course of business.

The abovementioned conditions under S. 65B(2) have been included to eliminate the probability of tampering or falsification of evidence. A further safeguard has been included under S. 65B(4) which provides that the person in possession of the source computer from which such electronic record is sought to be obtained, is required to sign a certificate and state that the contents of the concerned record are believed to be true to the best of his knowledge.

Though the jurisprudence regards the requirement of certificate under s. 65B(4) became scattered over the time, the law as it stands now, provides that a certificate under S. 65B(4) is a sine qua non for the admissibility of electronic evidence but only in cases where electronic evidence is being tendered as secondary evidence.[14]

S. 65B owes its inception to S. 5 of the Civil Evidence Act (UK), which by the time was adopted in India, had already been repealed in UK on Law Commissions' recommendation, stating that S. 5 as it stood was outdated due to the developments in computer technology & a different regime for electronic evidence was no longer required.[15]

Video recording in Indian Jurisprudence holds the same evidentiary value as an audio recording.[16] Media files generated through mobile phones can also be tendered as primary evidence provided that the mobile phone and the memory card (if any) used to store that file is submitted before the Court.[17]

While the requirements for the admissibility of electronic evidence have been settled by the Hon'ble Supreme Court, the difficulties posing the admissibility of a confession made without complying with the procedural law, on social media, still remain to be authoritatively explored.

International Precedents
As regards the international jurisprudence on the subject, social media posts have been recognized as material evidence to adjudicate contentious issues.[18] The Australian High Court in the case of Tofilau Vs R[19] while determining whether conviction could be based on confession recorded in electronic form, addressed a glaring difficulty in the admissibility of an Out-of-the-Court confession and held that the principle of "exclusionary discretion"[20] of out-of-court-confessions is primarily based upon the fairness of using such a confession, rather than the mode of obtaining such evidence.

The Court further held that the relevance of the seriousness of offence being investigated is an essential factor while exercising the principle of exclusionary discretion of evidence that is not obtained unlawfully.[21] In other words, if the evidence tendered is not obtained unlawfully, gravity of the offence committed is a crucial factor while exercising the discretionary jurisdiction of exclusion of evidence.

The abovementioned statutory provisions and precedents are reflective of significance that electronic evidence is obtaining in the law of Evidence. To effectively enhance the potential of electronic evidence as material evidence upon which a prosecution may be sustained, the long-standing principles of evidentiary law & their applicability to the growing involvement of social media in disclosing the commission of criminal offences ought to be assertively addressed.

  3. C.B.I. Vs V.C. Shukla (1998) 3 SCC 410
  4. Ibid
  5. Mohammed Khalid Vs State of West Bengal (2002) 7 SCC 334
  6. S. 164 CrPC
  7. S. 10 Evidence Act
  8. Sardul Singh Caveeshar & Ors. Vs State of Bombay 1958 SCR 161
  9. Badri Rai Vs State of Bihar 1959 SCR 1141
  10. Bhagwan Swamp Vs State of Maharashtra AIR 1965 SC 682
  11. Statement of Object and Reasons, Information Technology Act, 2000
  12. Anvar P.V Vs P.K. Basheer & Ors.(2014) 10 SCC 473
  14. Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal (2020) 7 SCC 1
  16. Alagaapuram R. Mohanraj & Others Versus Tamil Nadu Legislative Assembly Rep. by its Secretary & Another (2016) 6 SCC 82
  17. State (Nct Of Delhi) vs. Firoz Khan & Anr.2016 SCC OnLine Del 685
  18. Zimmerman v. Weis Markets, Inc., PICS Case No. 11-0932 (2011), Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (2010)
  19. Tofilau v R (2007) 231 CLR 396; [2007] HCA 39; BC200707276
Written By: Gauri Pande

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