Legal Perspective of

Digital Evidences

1. Introduction
Computer forensics is the application of science and engineering to the legal problem of
digital evidence. It is a blend of science and law. Acquisition of evidence is both a legal and
technical problem. In fact, these two facets are irrevocably related to each other. The law
stipulates what can be seized, under what conditions, from whom, and from where it may be
seized. The determination of what a particular piece of digital evidence is requires its
examination. The increase of computers and the impact of information technology in the
society and the storage of information in digital form required consistent amendments to
Indian law to embrace the provisions regarding the increase of digital evidence. Law
enforcement agencies face a new challenge in dealing with cybercrimes. Criminal activities
are being committed and the evidence of these activities is documented in electronic forms.
Moreover, crimes are being committed in cyberspace. Evidence in these crimes is virtually
always recorded in digital approach. It is essential that computer security professionals
should be cognizant of some of the requirements of the legal system and comprehends the
emerging field of computer forensics. The certainty of the information phase is having a
substantial impact on the legal establishment. One important area in which this is being felt is
that of the procurement, authentication, evaluation and legal admissibility of information
stored on magnetic and other media. This information can be stated as digital evidence.
Information Technology Act provides legal recognition for transactions carried out by means
of electronic data transaction and other means of electronic communication, which
encompass the use of substitutes to paper-based approaches of communication and storage of
information.

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2. Indian Penal Code

Section167: Public servant framing an incorrect document with intent to

cause injury
Whoever, being a public servant, and being, as such public servant, charged with the
preparation or translation of any document, frames or translates that document in a manner
which he knows or believes to be incorrect, intending thereby to cause or knowing it to be
likely that he may thereby cause injury to any person, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with both.

Section 292: Sale, etc., of obscene books, etc.

(1) For the purposes of subsection (2), a book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed to be obscene if it is lascivious
or appeals to the prurient interest or if its effect, or (where it comprises two or more
distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to
deprave and corrupt person, who are likely, having regard to all relevant circumstances,
to read, see or hear the matter contained or. embodied in it

(2) Whoever-
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation,
or for purposes of sale, hire, distribution, public exhibition or circulation, makes,
produces or has in his possession any obscene book, pamphlet, paper, drawing,
painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or
knowing or having reason to believe that such object will be sold, let to hire,
distributed or publicly exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the course of which he knows
or has reason to believe that any such obscene objects are for any of the purposes
aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly
exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or
is ready to engage in any act which is an offence under this section, or that any such
obscene object can be procured from or through any person, or

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 (e) offers or attempts to do any act which is an offence under this section, shall be
punished on first conviction with imprisonment of either description for a term
which may extend to two years, and with fine which may extend to two thousand
rupees, and, in the event of a second or subsequent conviction, with imprisonment of
either description for a term which may extend to five years, and also with fine
which may extend to five thousand rupees.

Section 354C: Voyeurism

Whoever watches, or captures the image of, a woman engaging in a private act in
circumstances where she would usually have the expectation of not being observed either by
the perpetrator or by any other person at the behest of the perpetrator shall be punished on
first conviction with imprisonment of either description for a term which shall not be less
than one year, but which may extend to three years, and shall also be liable to fine, and be
punished on a second or subsequent conviction, with imprisonment of either description for a
term which shall not be less than three years, but which may extend to seven years, and shall
also be liable to fine.

Section 354D: Stalking

(1) Whoever follows a person and contacts, or attempts to contact such person to foster
personal interaction repeatedly, despite a clear indication of disinterest by such person, or
whoever monitors the use by a person of the internet, email or any other form of
electronic communication, or watches or spies on a person in a manner that results in a
fear of violence or serious alarm or distress in the mind of such person, or interferes with
the mental peace of such person, commits the offence of stalking.

(2) Whoever commits the offence of stalking shall be punished with imprisonment of either
description for a term which shall not be less than one year but which may extend to
three years, and shall also be liable to fine.’.

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Section 500: Punishment for defamation
Whoever defames another shall be punished with simple imprisonment for a term which may
extend to two years, or with fine, or with both.

3. Indian Evidence Act

Section 22A: When oral admissions as to contents of electronic records are

relevant
Oral admissions as to the contents of electronic records are not relevant, unless the
genuineness of the electronic record produced is in question.

Section 45A: Opinion of Examiner of Electronic Evidence

When in a proceeding, the court has to form an opinion on any matter relating to any
information transmitted or stored in any computer resource or any other electronic or digital
form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the
Information Technology Act, 2000(21 of 2000)., is a relevant fact.

Section 65B: Admissibility of electronic records

(1) Notwithstanding anything contained in this Act, any information contained in an
electronic record which is printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer (hereinafter referred to as the computer output)
shall be deemed to be also a document, if the conditions mentioned in this section are
satisfied in relation to the information and computer in question and shall be admissible
in any proceedings, without further proof or production of the original, as evidence of
any contents of the original or of any fact stated therein of which direct evidence would
be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the
following, namely-
(a) the computer output containing the information was produced by the computer
during the period over which the computer was used regularly to store or process
information for the purposes of any activities regularly carried on over that period by
the person having lawful control over the use of the computer;

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 (b) during the said period, information of the kind contained in the electronic record or
of the kind from which the information so contained is derived was regularly fed
into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly
or, if not, then in respect of any period in which it was not operating properly or was
out of operation during that part of the period, was not such as to affect the
electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such
information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the
purposes of any activities regularly carried on over that period as mentioned in clause (a)
of sub-section (2) was regularly performed by computers, whether—
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever
order, of one or more computers and one or more combinations of computers,

all the computers used for that purpose during that period shall be treated for the
purposes of this section as constituting a single computer; and references in this section
to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this
section, a certificate doing any of the following things, that is to say, -
(a) identifying the electronic record containing the statement and describing the manner
in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic
record as may be appropriate for the purpose of showing that the electronic record
was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2)
relate,

and purporting to be signed by a person occupying a responsible official position in

relation to the operation of the relevant device or the management of the relevant
activities (whichever is appropriate) shall be evidence of any matter stated in the
certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be
stated to the best of the knowledge and belief of the person stating it.

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(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any
appropriate form and whether it is so supplied directly or (with or without human
intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied
with a view to its being stored or processed for the purposes of those activities by a
computer operated otherwise than in the course of those activities, that information,
if duly supplied to that computer, shall be taken to be supplied to it in the course of
those activities;
(c) a computer output shall be taken to have been produced by a computer whether it
was produced by it directly or (with or without human intervention) by means of any
appropriate equipment.

4. Information and Technology Act

Section 43: Penalty for damage to computer, computer system, etc.

If any person without permission of the owner or any other person who is incharge of a
computer, computer system or computer network,-

(a) accesses or secures access to such computer, computer system or computer network;
(b) downloads, copies or extracts any data, computer data base or information from such
computer, computer system or computer network including information or data held or
stored in any removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer virus into
any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer
network, data, computer data base or any other programmes residing in such computer,
computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer,
computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer, computer
system or computer network in contravention of the provisions of this Act, rules or
regulations made thereunder;
(h) charges the services availed of by a person to the account of another person by
tampering with or manipulating any computer, computer system, or computer network,

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He shall be liable to pay damages by way of compensation not exceeding one crore rupees to
the person so affected.

Section 65: Tampering with computer source documents

Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly
causes another to conceal, destroy or alter any computer source code used for a computer,
computer programme, computer system or computer network, when the computer source
code is required to be kept or maintained by law for the time being in force, shall be
punishable with imprisonment up to three years, or with fine which may extend up to two
lakh rupees, or with both.

Section 66: Hacking with computer system

(1) Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or
damage to the public or any person destroys or deletes or alters any information residing
in a computer resource or diminishes its value or utility or affects it injuriously by any
means, commits hack.
(2) Whoever commits hacking shall be punished with imprisonment up to three years, or
with fine which may extend upto two lakh rupees, or with both.

Section 67: Publishing of information which is obscene in electronic form

Whoever publishes or transmits or causes to be published in the electronic form, any material
which is lascivious or appeals to the prurient interest or if its effect is such as to tend to
deprave and corrupt persons who are likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it, shall be punished on first conviction
with imprisonment of either description for a term which may extend to five years and with
fine which may extend to one lakh rupees and in the event of a second or subsequent
conviction with imprisonment of either description for a term which may extend to ten years
and also with fine which may extend to two lakh rupees.

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5. Summary

 Section167 of Indian Penal Code: Public servant framing an incorrect document with
intent to cause injury.
 Section 292 of Indian Penal Code: Sale, etc., of obscene books, etc.
 Section 354C of Indian Penal Code: Voyeurism
 Section 354D of Indian Penal Code: Stalking.
 Section 500 of Indian Penal Code: Punishment for defamation.
 Section 45A of Indian Evidence Act: Opinion of Examiner of Electronic Evidence.
 Section 22A of Indian Evidence Act: When oral admissions as to contents of electronic
records are relevant.
 Section 65B of Indian Evidence Act: Admissibility of electronic records.
 Section 43 of Information and Technology Act: Penalty for damage to computer,
computer system, etc.
 Section 65 of Information and Technology Act: Tampering with computer source
documents.
 Section 66 of Information and Technology Act: Hacking with computer system.
 Section 67 of Information and Technology Act: Publishing of information which is
obscene in electronic form.

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