SMS as admissible evidence

One of the pieces of circumstantial evidence sought to be relied by the prosecution in the Pramod Mahajan Murder Trial, was a threatening SMS (Short Message Service) sent by Pravin Mahajan (the accused) to Pramod Mahajan. It emerges from newspaper reports that the defense, (a) gave a demonstration that a SMS could emanate from a particular handset/mobile number and when received could display another mobile number; (b) referred to certain provisions of the Indian Evidence Act, 1872 and stated that the SMS was inadmissible as evidence in Trials since, “only secured electronic evidence [could] be accepted as valid evidence.”With regard to the submission that a SMS is inadmissible as valid evidence. In my opinion that it is incorrect to state that only secured electronic evidence can be accepted as valid evidence.

Reference here may be had to Section 65B(1) of the Indian Evidence Act, 1872. It states that, “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.” Thus evidence in an electronic form is admissible under the Indian Evidence Act, 1872. Certain requirements need to met under Section 65B(1) if computer outputs are sought to be adduced as evidence.

Secured electronic evidence merely create a presumption in favour of the person adducing it, and shifts the onus of proof to the other party. Refer to Section 85B which states that, “(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.”

On an interesting note, the Hon’ble Judge dismissed the defense contentions on the grounds that (a) the practical demonstration was conducted by defense witness, P Balakrishnan, on a Motorola handset similar to that of Pramod, but not Pramod’s phone; and (b) Balakrishnan was “not an expert” as per law as he doesn’t have the authorized qualifications. Since I do not have a copy of the judgment/pleadings, I cannot comment on these issues. Further the post is based solely on newspaper reports.

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