Evidence Act

Evidence Act is one of the oldest Act that is still in force in the country. The 1872 Act is still going strong through various amendments that the time requires. Several amendments were made ever since this Act came into effect.

Amendment to an Act is always necessary to facilitate the changes and developments that take place in the world from time to time. In that regard, the evidence Act is an Act which will require a frequent change when there is a broadening of areas where crimes are being committed and the severity and heinousness of the offence is never ending.

AMENDMENT OF INDIAN EVIDENCE ACT THROUGH INFORMATION TECHNOLOGY ACT, 2000

A major amendment in the Indian Evidence Act in the recent times was with regard to Information Technology Act, 2000 which was a result of the increasing cyber and other crimes in the electronic platform. Trial and decision of such offences had to be supported with evidences that are supported by the Evidence Act and most of them would naturally be in the electronic format.

The following amendments were made to contain the necessary changes.

“Electronic records” was included within the ambit of the term document.
Section 65- Special provision as to evidence relating to electronic records that include telephonic conversation, CCTV footage, computer output etc.
Section 65 B- dealing with the admissibility of the electronic record
Section 67 A to 73 A- dealing with the concept of digital signature.

The widening of the term “document” to include “electronic records” under its ambit is a commendable recommendation from the 185th Law Commission Report. They had also quoted a British author in their report which said the weight of the computergenerated document must depend on the fact that how reliable it is. It also suggests the parties to provide information as to the security of their system which in turn provides more room for the admissibility of electronic evidence or any such evidences produced.

The Commission, in its report also suggested, that there was no need to have a specific mention for including DNA as evidence following the ruling in Kamta Devi v. Poshi Ram. In this case, the DNA evidence produced is the court was not admitted since the law provided for an assumption.

The Indian Evidence Act brought in the concept of digital signature and its validity in the Court of Law. This is a very important reform that was to take place when there are a lot of cases which we read everyday regarding forging of signature for different malafide purposes. Forging signature for different purposes was a malpractice that is under use to meet unfair needs of either of the parties. The Act was amended in such a way to include the concept and admissibility of digital signature while defending themselves in the Court.

Section 67 A of the Indian Evidence Act reads,

“Except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.”

Insertion of Section 73 A, mandates the production of the Digital signature Certificate in order to prove the authenticity of the signature.

Section 85 C talks about the presumption of Digital signature Certificates:

The Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.”

The new amendment also recognizes e-contracts made by two parties affixed by their digital signatures. (Section 85 A)

From the following sections, it is clear that the legislature has tried its way best to bring all the possible developments in the cyber world and crime prevention methodologies referring to the Information Technology Act, 2000.

AMENDMENT OF INDIAN EVIDENCE ACT THROUGH CRIMINAL LAW AMENDMENT

Criminal Law in India is an area where frequent amendments are made to accommodate the principles of justice and crime prevention. Offences against women are the once that has been recently modified within the criminal law and subsequent changes have been made to the Evidence Law as well.

Section 53 A

The evidence providing the character or previous sexual experience of the victim is irrelevant in certain cases.

‘in a prosecution for an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 376(1), Section 376(2), Section 376A, Section 376B(1) or Section 376C of the Indian Penal Code or for attempt to commit any such offence, evidence of the character of the victim or of his or her previous sexual experience with any person shall not be relevant.’ 

Section 114 A

The Court will presume that there was no consent from the victim while prosecuting certain rape cases.

Section 146

Introduction of evidence or putting questions in cross examination of the victim as to her moral character or her previous sexual experiences for proving consent and the quality of consent is not possible.

MALIMATH COMMITTEE REPORT

Malimath Committee, as the name suggests, was headed by Justice V.S. Malimathi, proposed various important changes on the principles of evidence and criminal trials.  The main area of the report was based on the rights of the victims. Several recommendations of the committee included a modification of section 3 of the Evidence Act, which was recommended to be read that, in criminal cases, unless otherwise provided, a fact is said to be proved when, after considering the matters before it, the court is convinced that it is true. Under the amending proposal, the judge may examine any person as a witness or any person in attendance, not necessarily someone who was summoned as a witness.

Section 25 of the Evidence Act provides that no confession made to a police officer shall be admissible by law. The committee, in its reports, recommended that this section should be amended on the lines of section 32 of Prevention of Terrorism Act( POTA), 2002, where these confessions that are recorded by a Supt. of Police or an officer of a higher rank, along with an audio or video recorded be admissible in the court of law as evidence. This is subject to the condition that the accused was informed of his right to consult a lawyer.

Section 54 of the Evidence Act was also a point of interest in the Malimath Committee Report. It suggested the law to take the bad character of the accused into consideration while under a criminal proceeding. The current position is that the bad character is not relevant, except while responding to cases where the evidence produced has been led to show the good character of the accused. The point of debate was that if the accused has the right to give evidence regarding his good character, the prosecution should also be entitled to the right to provide the evidence proving the bad character of the accused.

VERMA COMMITTEE REPORT

This committee was constituted to provide suggestions for speedy trial and modify punishments for sexual offenders. The opinion of this committee gave more importance to the testimony of the victim. They noted that the testiomony of a victim can be the sole evidence for conviction. The law does not require corroboration, when prosecuting for rape. Corroboration can be made to satisfy the conscience of the court and to prevent false accusation.

Section 53 A  was the suggestion of the Verma Committee and the 42nd Law Commission.

Amendment of 114 A

Presumption as to absence of consent in certain prosecutions for rape.— In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of subsection (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

The Committee suggested an amendment to this section so that it can be read as,

“(1) In a prosecution for rape under sub-section (2) of section 376 or for gang rape under Section 376C of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the other person alleged to have been raped and such other person states in his/her evidence before the court that she or he did not consent, the court shall presume that she or he did not consent. Explanation.—In this section “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (c) of section 375 of the Indian Penal Code”

Substitution of the term “dumb witness” in section 119 of the Evidence Act

Persons who are unable to communicate verbally and provided that if the witness is unable to communicate verbally, the Court shall take the assistance of a special educator or interpreter in recording the statement, and such statement shall be videographed.

These are some of the key suggestions provided by the Malimath and the Verma Committee in the Criminal Law aspect of Evidence Law.

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