Document Fragment View
Fragment Information
Showing contexts for: data access in Kundan Singh vs The State on 24 November, 2015Matching Fragments
23. In his cross-examination, Puneet Sharma (PW-11) has accepted that the said CD and the account statement were never handed over in his presence to the Investigating Officer. In view the aforesaid contradiction, Puneet Sharma (PW11) was re-examined by the Additional Public Prosecutor and thereupon he had stated that he had seen the CD and the account statement being handed over by Tanuj Khosla to the Investigating Officer and the CD was kept in a plastic box. On cross-examination by the counsel for the appellant, PW11 deposed that a CD could not have been prepared without a password for accessing the server on which photographs/data are stored. PW11 accepted the suggestion that he could not state whether the CD was the original version of the data stored on the server or fabricated one. He has also accepted as correct that the account statement Ex.PW11/A was a photocopy and did not have the stamp of ICICI Bank or certificate under the Bankers‟ Books Evidence Act, 1891.
28. Anil Kumar Sachdeva (PW-11A) was recalled and re-examined on 17th April, 2013. PW-11A had produced certificate under Section 65B of the Evidence Act, dated 16th April, 2013 which was marked Ex.PW- 11/E. On the said date, Anil Kumar Sachdeva (PW11A), Nodal Officer, Reliance Communication affirmed that during the period from August 2007 to 30th September, 2007, the computers were operational and were in safe custody, and no complaint regarding the operation of the computers was received. On receipt of request from a law enforcing agency for the supply of CDRs of a particular mobile phone, they used to forward the request to the Mumbai office, where the data was stored on the main server. Mumbai office used to transfer the CDRs asked for, to their FTP server. The computer department, which was under the supervision of PW11A, used to access the server and handover the data to him. There was no possibility of tampering or manipulation of the data accessed, which was completely protected. Records provided by them were completely authentic and correct. He also testified as to how the cell towers from where the calls were connected were identified on the CDRs. PW-11A has deposed:
57. We have already referred to the distinction between factum of a statement and truth of a statement and the concept of presumption of memorandum or records maintained in normal course of business and the credibility or trustworthiness of electronic records. However, it must be understood that mere admission or admissibility of the electronic record would not mean that the contents of the electronic record have been proved beyond doubt and debate and are automatically proved when the document is marked exhibit. Mere marking of a document as exhibit does not dispense with the proof of its contents (see Sait Tarajee Khimchand versus Yelamarti Satyam, AIR 1971 SC 1865, Narbada Devi Gupta versus Birendra Kumar Jaiswal, (2003) 8 SCC 745 and Mohd. Yusuf versus D. and Another, AIR 1968 Bombay 112). Provisions of Section 65 of Evidence Act are apposite on the said legal principle and reference can also be made to Sections 91 and 92 of the Evidence Act. The latter sections deal with exclusion of oral evidence by documentary evidence in certain cases and in which cases oral evidence can be led even when there are documents recording terms of contract, grant or any other disposition of property or when a matter is required by law to be reduced to a form of a document. The effect of the aforesaid provisions is that when a certificate under Section 65B authenticates the computer output, it will only show and establish that the computer output is the paper print out or media copy, etc. of the computer from which the output is obtained. The court has still to rule out when challenged or otherwise, the possibility of tampering, interpolation or changes from the date the record was first stored or created in the computer till the computer output is obtained. The focus over here is not so much on the creation of the out-put as stipulated under sub-section (2) to Section 65B, but rather on the preservation and sanctity of the record after it was originally created. It extends beyond identification of the particular computer equipment and the process or equipment used for computer output, etc. It would relate to the policies, procedures for use of the equipment that stored the said information since creation and data base and integrity of the same. Questions which would arise and have to be answered is whether data base was protected and had no or limited access, which permits modification/alteration; whether the data base could be wrongly lodged or created or could be transferred or changed when the data base was transferred and stored in the backup systems. These are questions which are pertinent and have to be examined to ascertain whether or not there was possibility of change, alteration or manipulation in the initial or original data after it was created. The courts must rule out that the records have not been tampered and read the data or information as it originally existed. These are aspects which are not codified as such, for probative value is examined on the case to case basis keeping in mind the relevant facts.