Admissibility of CCTV footage in evidence law.
Based on the matter of
Tomaso Bruno & Anr. V. State of Uttar Pradesh
What kind of evidence is CCTV footage?
Close circuit television has become a crime controlling technique in last few decades, the footage generated using the security cameras in turn has become a progressively important source of evidence in criminal proceedings. With the rapid change in technology, it has become the need of the hour to adapt to the change, so the courts as well as the legislature in India has accepted the change and recognized it. This change took place when Electronic records were recognized and explained as evidence under the IT Act, 2008. These electronic records include data, sounds and images which are either generated or recorded and sent or received in an electronic form, these records are admissible under the Indian Evidence Act and is known as Electronic Evidence. Now it is clear that CCTV footage falls under the preview of the Term Electronic Evidence which has been described under Section 65B(1) of the Indian Evidence Act, 1872.
CCTV Footage to be considered as Primary Evidence or Secondary evidence?
Now the question we have is will the CCTV footage will be considered as a Primary Electronic evidence or a Secondary Electronic evidence?
The answer to that question is that it can be and might be considered as both Primary and Secondary Evidence under different circumstances. The virtual platforms like Cloud storage, Servers or the Hard-drives and other storages device connected to the Computer will be considered as a Primary source of evidence, but when a video has been extracted from any of the Primary source of evidence or transferred to a Compact Disk, DVD, Hard drive, memory chip or Pen Drive using the computer which was originally used to store the footage using video camera or any other medium then the memory card or storage of the computer is the primary source and the CDs, DVDs, Chip, memory card etc., will be taken as Secondary Evidence and will be admissible in the court.
The audio and video recording will be considered as a valid source of Evidence. The Tape recording are recognized as Res gestae, which means that these recordings will be considered as relevant to the case and also will be considered as admissible Evidence, as it was stated in the case of N. Sri Rama Reddy Etc. v. Shri V.V. Giri. AS audio tapes could be tampered with like alteration or some part can be erases or re-recoded so, while accepting audio tapes or audio files of any footage shall be accepted only after some factors are checked, these factors involves establishing the voice of the speaker, its accuracy and relevancy will be checked whether they are been tampered or not, only if the file or tape passes all the tests only then it will be considered as a evidence. Even video recordings also have to go through the similar kind of test to be considered valid evidence, as it was stated in Alagaaouram R. Mohanraj 7 Others v. Tamil Nadu Legislative Assembly Rep. by its Sectary & another.
The concept of Audio and Video in CCTV footage as evidence.
The audios and videos which are known to be original are the ones which are accepted as a valid source of Evidence. The audio and the video of the footage or only video in case of video only footage has to go through specific test in the respective formats to assure the court that the electronic Evidence which is the footage is not tampered or is genuine. The audio files have to go through series of test to establish the factors necessary to accept an audio file or tape to be a genuine evidence, these factors which are to be checked are as follows voice of the speaker, its accuracy, relevancy, exclusion of the possibility of tempering on manipulation, appropriate custody and clarity of the audio in question. This is done so that there is no gray area in admitting the evidence.
When we talk about the video recording as the evidence even they hold the same value as the audio recording but it also has to go through several tests as well. When video is submitted to the court which is the primary evidence it will not have to go through this test but in case of secondary evidence when the primary evidence could not be presented in the court it has to go through the tests. This Secondary Evidence are admissible under Section 65(B) of the Indian Evidence Act under specific conditions.
Admissibility of CCTV footage as Secondary evidence.
CD, DVD, chip, Hard-Drive, Memory Chip, Pen Drive. – These kinds of electronic records are admissible as Primary Evidence as stated in the case of State of Gujarat vs. Shailendra Kamalkishor Pande as well as Secondary Evidence. Like, if the CD in question is Primary Evidence, then it is admissible without a question. CD, DVD, Hard-Drive, Memory Card or a Pen Drive to be Primary Evidence, it is necessary that the data, picture, video or anything which is to be presented to the court for Evidence is generated or recorded in that specific CD, DVD, Hard Drive, Memory Card or Pen Drive at the source. In other words, original media should be stored or recorded directly in that CD, DVD, Hard drive, Memory Card or Pen Drive that was self-generated and created without any human intervention as it was stated in the matter of Kishan Painter vs. The State. Whereas if a CD is a Secondary Evidence, like if it is a copy of the original and is a duplicated version, then it has to pass the test of authenticity, by complying with the conditions under section 65(B) as it was stated in the matter of Anvar P.V Versus P.K. Basheer and others. These conditions help to ensure the computer output is authentic, reliable, accurate, and exclusion of the possibility of tempering the Evidence. A certificate under section 65B(4) was held mandatory to be issued or the Secondary Evidence in electronic form will not be considered by the court as valid Evidence as stated in the case of Sharadendu Tiwari vs. Ajay Arjun Singh and Ors.
Tomaso Bruno & Anr. V. State Of U.P
Citation: Criminal Appeal No. 142/2015
Bench: Hon’ble Justice R. Banumatji.
Provisions involved: Indian Evidence Act, 1872 Section 65 and 114.
Facts of the case
The matter was appealed by two Italian nationals(accused) who were convicted for the murder of another Italian national during their trip to Varanasi.
All of them, the two appellants and the deceased were sharing a hotel room at the time of death.
The cause of the death was asphyxiation and most of the evidence was circumstantial.
The defence of the appellants was that the death occurred during their absence as the deceased was not feeling well and could not join them in an excursion.
The prosecution version it appears is that the appellants did not go for any such trip and hence could not avail the plea of alibi.
In counter to this the defence relied on the absence of several pieces of digital evidence such as CCTV footage and SIM card details were presented to argue that the prosecution failed to prove any such case beyond reasonable doubt.
Issue
Whether the absence of production of CCTV lead to acquittal of the accused?
Judgement
The court first notes the nature of the case and the relevance of the CCTV footage. Towards this the court notes that the case of the prosecution is largely circumstantial. There are no eye witnesses and medical evidence is limited to citing the cause of death as asphyxiation.
Further the conviction of the appellants was based on the testimony of the Hotel Manager and the Investigating Officer of the police, who stated that they saw no ingress into the hotel room of the deceased. This was based on viewing the CCTV cameras installed in the common areas of the hotel. However, the CCTV footage by itself was not adduced as evidence by the prosecution. Hence, in any case the court reasons that the CCTV footage constituted the best evidence.
The effect of non-production of not adducing the best evidence, is viewed by the Court as material suppression which leads to an adverse inference under Section 114(g) of the Evidence Act. It is important to note that the reasoning of the Court is not limited to the absence of CCTV footage. It also involves the inconsistences in the testimonies of the prosecution witnesses and the medical examination,
The court stated that, “The courts below have ignored the importance of best evidence. CCTV camera in the instant case and also have not noticed the absence of symptoms of strangulation in the medical reports. Upon consideration of the facts and circumstances of the case, we are of the view that the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and the conviction of the appellants is liable to be set aside.”
Conclusion
Electronic records are admissible in Primary form just as in Secondary form of Evidence, subject to the fact that they are precise, prohibition of the chance of tempering or control, proper guardianship, are applicable and dependable. A significant condition which can't be over looked is the authentication under section 65B(4), without which an electronic record in the form of Secondary Evidence is not admissible, so given that fact it is very unlikely that CCTV will not be admissible in court if it is in correct condition.
References
IT Act, 2000 § 2(t)
Indian Evidence Act, 1872 § 65A
1971 AIR 1162,1971 SCR (1)399
(2016) 6 SCC 82 : 2016 SCC OnLine SC 134 W.P.(C) No.- 000455-000455
Vijay Pal Dalmia, Admissibility & Evidentiary Value of Electronic Records
Mondaq (Oct 5, 2020, 2:30 P.M.) https://www.mondaq.com/india/court-procedure/824974/admissibility-evidentiary-value-of-electronic-records
Indian Evidence Act, 1872 § 65(B)
2008 CriLJ 953.
2016 SCC OnLine Del 1136
Indian Evidence Act, 1872 § 65(B)
Civil Appeal No. 4226 of 2012.
Indian Evidence Act, 1872 § 65B(4)
MANU/SCOR/03864/2018, EP-1-2014
Aryaknath Bhattacharya,
B.B.A. LL. B(Hons)
Amity Law School Kolkata