Important Judgments on Electronic and Circumstantial Evidence under the Bharatiya Sakshya Adhiniyam, 2023 (BSA)
By Advocate Avichal Pandey, Allahabad High Court
The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced the Indian Evidence Act, 1872, largely retains the principles developed through decades of judicial interpretation. Several landmark judgments of the Supreme Court continue to guide courts in appreciating electronic evidence, digital records, and circumstantial evidence under the new legal framework. Four such significant decisions are discussed below.
1. Tomaso Bruno v. State of Uttar Pradesh (2015) 7 SCC 178
Facts of the Case
The case arose from the murder of an Italian national in Uttar Pradesh. During the investigation, it emerged that CCTV cameras were installed at the hotel where the accused and the deceased had stayed. However, the prosecution failed to produce the CCTV footage before the court.
Legal Issue
Whether the failure of the prosecution to produce available electronic evidence could justify drawing an adverse inference against it.
Supreme Court's Findings
The Supreme Court observed that modern criminal investigations increasingly rely on scientific and electronic evidence. CCTV footage, where available, constitutes an important piece of evidence capable of establishing the presence or absence of individuals at a particular place and time.
The Court held that when such evidence is available but deliberately withheld, courts may draw an adverse inference against the party withholding it.
Significance under BSA
The judgment remains highly relevant under the Bharatiya Sakshya Adhiniyam. Courts are expected to encourage the production of the best available evidence, particularly electronic records such as CCTV footage, surveillance recordings, and digital tracking data.
Practical Impact
Investigating agencies can no longer ignore electronic evidence without justification. Failure to collect or produce available digital evidence may weaken the prosecution case and adversely affect its credibility.
2. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1
Background
The case involved the admissibility of electronic records in election-related litigation. Conflicting judicial opinions had emerged regarding the necessity of a certificate under Section 65B of the Indian Evidence Act.
Core Question
Whether a certificate under Section 65B of the Indian Evidence Act (now reflected in Section 63 of the BSA) is mandatory for admitting electronic evidence.
Decision of the Court
A Three-Judge Bench settled the controversy once and for all. The Court ruled that when an electronic record is produced in the form of a copy and the original device is not before the court, a certificate under Section 65B is mandatory.
The Court clarified that electronic evidence stands on a distinct footing from ordinary documentary evidence and must satisfy statutory requirements before becoming admissible.
Importance under BSA
Section 63 of the Bharatiya Sakshya Adhiniyam substantially carries forward the principles of Section 65B. Therefore, WhatsApp chats, emails, screenshots, CCTV recordings, call records, and digital documents generally require statutory certification when secondary electronic copies are relied upon.
Practical Lessons
Lawyers and litigants must ensure compliance with certification requirements at the earliest stage. Failure to do so may result in otherwise valuable evidence being excluded from consideration.
3. P. Gopalakrishnan @ Dileep v. State of Kerala (2020) 9 SCC 161
Facts
The prosecution relied upon video recordings stored in a memory card during the trial. The accused sought copies of the electronic material to prepare his defence.
Legal Issue
Whether electronic records stored in memory cards and pen drives qualify as documents and what rights the accused possesses regarding access to such evidence.
Supreme Court's Analysis
The Court held that data contained in memory cards, compact discs, hard drives, and pen drives constitutes electronic records and is legally recognised as a document.
At the same time, the Court balanced the rights of the accused with the privacy and dignity of the victim. It held that in sensitive cases, especially sexual offence matters, inspection of electronic material may be permitted instead of supplying physical copies.
Relevance under BSA
The decision reflects a modern understanding of digital evidence. Under the BSA, electronic records receive explicit statutory recognition, and courts are increasingly required to balance fair trial rights with privacy concerns.
Practical Importance
The judgment serves as an important precedent in cases involving mobile phones, CCTV footage, digital recordings, and other electronic devices containing sensitive information.
4. Neeraj Dutta v. State (NCT of Delhi) (2023) 4 SCC 731
Factual Matrix
The matter concerned allegations of bribery under anti-corruption laws. During the proceedings, questions arose regarding proof of demand and acceptance of illegal gratification where direct testimony was unavailable.
Legal Question
Can demand and acceptance of a bribe be proved through circumstantial evidence even in the absence of direct oral testimony?
Findings of the Constitution Bench
A Five-Judge Constitution Bench held that direct evidence is not the only method of proving corruption charges. Demand and acceptance of illegal gratification may also be established through reliable circumstantial evidence and legitimate inferences arising from proven facts.
The Court emphasised that evidence must be evaluated holistically rather than mechanically.
Importance under BSA
The ruling reinforces the principle that facts can be established through logical inferences drawn from surrounding circumstances. The BSA continues to recognise the importance of circumstantial evidence in criminal trials.
Practical Consequences
The judgment strengthens prosecutions where witnesses become hostile, die, or are otherwise unavailable, provided the surrounding evidence convincingly establishes guilt.
Conclusion
These four judgments collectively demonstrate the judiciary's adaptation to the realities of the digital age. Tomaso Bruno underscores the importance of producing available electronic evidence. Arjun Panditrao Khotkar establishes the mandatory requirement of statutory certification for electronic records. P. Gopalakrishnan clarifies the status of digital storage devices as documents while balancing privacy concerns. Neeraj Dutta highlights the continuing importance of circumstantial evidence in proving facts where direct testimony is unavailable.
Although the Bharatiya Sakshya Adhiniyam, 2023 has replaced the Indian Evidence Act, these decisions continue to serve as guiding precedents for interpreting electronic evidence, digital records, and evidentiary principles in contemporary litigation. For advocates, investigators, and litigants alike, understanding these rulings is indispensable for effective presentation and appreciation of evidence in modern courts.
Author: Avichal Pandey
Advocate
Allahabad High Court
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