Rakesh Kumar & Ors. v. State
(2009) 163 DLT 658
In the High Court of Delhi
Crl. A. 19/2007
Before Justice Pradeep Nandrajog and Justice Inderjeet Kaur
Decided on August 27, 2009

Relevancy of the case: Admissibility of Electronic Records as primary or secondary evidence

Statutes & Provisions Involved

• The Information Technology Act, 2000 (Section 65B)
• The Indian Penal Code, 1860 (Section 302 r/w Section 120B)

Relevant Facts of the Case

• Atma Ram Gupta (deceased) was a member of Indian National Congress working as a Councillor of the Municipal Corporation of Delhi. On 24/08/2002 he left his house for a rally in Ferozshah Kotla Ground. He did not return that night. He was murdered and the last known person with him was Sharda Jain who was arrested.
• Sharda Jain produced a mobile phone which contained call records with the assassins.

Opinion of the Bench

• Justice Pradeep Nandrajog: There is no bar to adducing secondary evidence under other provisions of the IEA, namely S.63 and S.65. But in the instant case, the call recordings can only be admitted wide S. 65B only, which was not done as no certificate under S. 65B was produced before the court.

Final Decision

• Appeals filed by Sharda Jain, Raj Kumar, Roshan Singh, and Rajinder are dismissed.
• Appeals filed by Puspinder, Nirvikar, Rakesh Kumar, Sripal Singh Raghav, and Satender Kumar are allowed and the charges against them are dropped.

Personal Opinion

• In most cases where electronic evidence is to be admitted, the original source is not possible to be presented in front of the court and thus electronic evidence can be admitted under the provision of Secondary Evidence under Section 65B which requires a certificate by the person who is the certifying authority.

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