ADMISSIBILITY OF INTERVIEWS AS EVIDENCE

UNDER THE GUIDENCE OF

Shri. N. KRISHNAPPA
JUDGE, SPECIAL COURT FOR S.C, S.T (POA) ACT, NELLORE

PRESENTED BY

1. BHUPAL REDDY
FIRST ADDL, SENIOR CIVIL JUDGE, NELLORE

2. A. PADMA
SPL, J.M.F.C. FOR EXCISE OFFENCES. NELLORE and

3. T. VASUDEVAN
FOURTH ADDL, JUNIOR CIVIL JUDGE, NELLORE.

INTRODUCTION

New technology and the evolution of communications systems

have substantially transformed the process of exchanging information. Our
country that regulates evidence, electronic evidence, the admissibility of
evidence or the admissibility of electronic evidence.

It is not out of place to mull over the advantages and

inconveniences in the process of electronic evidence. Advantages can be
classified as

1. Information: exact, complete, clear, precise, true, objective,

novel and neutral.

2. Proof: solid, useful, reliable, viable, essential, to prove certain

crimes that previously Couldn’t be proven.

3. Easy: collection, use, safekeeping and Storage.

 4. Electronic documents, together with Electronic signatures,
facilitate electronic Commerce making it faster and more
secure.

Inconveniences are such as :

# Scant/lack of suitable and systematic regulation;

# Unknown and very technical material;

# Demands specific knowledge;

# Difficult to present at court in an understandable manner;

# Harder to be accepted at court: judges ask for more guarantees than

with other evidence;

# Lack of technical infrastructure in judicial departments;

# High cost of examining and interpreting the information;

# Hard to know how to process the data and how to interpret specific
processing laws;
# Difficult to prove authenticity, reliability and origin of data;

# Volatility of data and ease of manipulation;

# Hard to identify perpetrator of the crime;

# Difficult to conserve, preserve and store;

# Hard to establish legal value of evidence and lack of legal support and
certification etc.

But, there is no dubiety to say that the information technology is a great tool
for speedy justice.

The various categories of electronic evidence such as website

data, social network communication, e-mail, SMS/MMS and computer
generated documents poses unique problem and challenges for proper
authentication and subject to a different set of views. Source and authenticity
are the two key factors for electronic evidence.
 The role of media and Investigatory Journalism has been growing
in recent times, in the Indian Legal System to the extent that today media has
been diciding the cases even before the trial begins. No doubt, that this
Investigatory Journalism has been playing a vital role in bringing up issues of
public concern and importance to the notice of the courts. Today, the media is
not only referring the areas of concern, rather collecting statistics, evidence
and through Television interviews, extracting the views of public on burning
topics and latest inure including criminal, but sometimes they are misusing
the right of freedom of speech. Sometimes, these types of interviews become
key evidence in Anticorruption Cases.

In order to benefit himself or to benefit other persons, a person

may make a statement through an interview or sometimes these statements
exclude the person from the commission of offence which are called as
“Exculpatory Statements” which do not amount to confession. Only the
“Inculpatory Statements” i.e., the statements which inculpate the accused in
the crime amount to confession. A portion of the statement which is of
inculpatory nature cannot be admitted while rejecting the other portion,
which is exculpatory in nature.

These confessions may be Judicial or Extra-Judicial. When a

confession is made during the course of judicial proceedings is Judicial
Confession. Extra Judicial Confession is one which is made outside the course
of judicial proceedings i.e., a confession made to a private person.

In the light of above, now we have to see the admissibility of

interviews given to electronic media i.e., Television Interviews, whether it will
be considered as oral evidence or documentary, whether it will be a Primary
Evidence of Secondary Evidence, whether confession of accused in a
television interview will be considered as extra-judicial confession and what
will be the issues involved in such confessions.
 With regard to the admissibility the interview recorded and
stored in an electronic devise, when it is produced before the court in the
form of C.D., again the same must be in consonance with Secs.65-A and 65-B
of Evidence Act. The Evidence Act mandates a special procedure for electronic
records because printed copies of such information are vulnerable to
manipulation and abuse.

LAW OF EVIDENCE

To appreciate the evidentiary value of the above evidence in

electronic record, section 65A and 65B were introduced in the Evidence Act,
under the II schedule of the Information Technology Act 2000. Sec.65 A says
that the contents of electronic record may be proved in accordance with
provisions of section 65B. Sec. 65B provides that “ notwithstanding any
thing contained in the Evidence Act, any information contained in an
electronic record (i.e. the contents of a document or communication
printed on paper that has been stored, recorded and copied in optical
or magnetic media produced by a computer (‘computer output’)), is
deemed to be a document and is admissible in evidence without
further proof of the originals production, provided that the conditions
set out in section 65 B (2) to (5) are satisfied.

Thus the certificate as stated in 65 B (4) may contain the following

details:

1. Identification of the electronic record and description of manner

of production.
2. Particulars of device used in production and
3. The details indicating compliance of condition.

If the electronic evidence is properly adduced with necessary

certificate in accordance with Sec.65 B of Evidence Act, the other party may
challenge genuineness of the original electronic record, then Sec.22A permits
oral admissions as to the contents of electronic records are relevant. Sec.45A
permits an expert’s oral evidence is relevant as to the genuineness of the
record regarding his opinion referred to in sec.79 A of the Information
Technology Act, 2000.

SCRUITINY BEFORE ADMISSION

When electronic evidence is produced, the following aspects are to

be verified for its admissibility.

1. Whether the information is relevant.

2. What is its authenticity.
3. Is it hearsay.
4. Is it original or duplicate, or secondary evidence.
5. What is its probative value.

Since the interviews contain audio-video recordings which

impliedly include Tape recorded conversations, it is necessary to follow the
guidelines/principles laid down by the Hon’ble Supreme Court in
various pronouncements.
i.) The contemporaneous dialogue, which was tape recorded, formed
part of res-gestae and is relevant and admissible under Sec. 8 of
the Indian Evidence Act.

ii.) The conversion shall be relevant to the fact in issue and is admissible
under Sec. 7 of Evidence Act.
iii.) Such a statement is not a statement to police during investigation,
therefore, it cannot be held to be inadmissible under Sec. 162 of
Cr.P.C.
 iv.) Such a conversation is not elicited by duress, coercion or compulsion
and is voluntary one, hence protection under Article 20 (3) is not
available to accused.

Since one of the features of magnetic tape recording is the ability

to erase and re-use the recording medium, the evidence must be received with
caution and the court must be satisfied beyond reasonable doubt that the
record has not been tampered with.

In the case of N. SRI RAMA REDDY VS. SRI V.V. GIRI repoted
in AIR 1971 SC 1162, the Apex Court held that tape record itself is primary
and direct evidence and is admissible. The same view was reiterated by the
Apex Court in R.K. MALKANI VS. STATE OF MAHARASTRA AIR 1973 SC 157.

In ZIYAUDDIN BURHANUDDIN BUKHARI VS. BRIJMOHAN

RAMDAS MEHTA AIR 1975 SC 1788 Apex Court pronounced that the use
of tape recorded conversation was not only confined for corroboration and
contradiction but when duly proved by satisfactory evidence of what was
found recorded and of absence of tampering, it could be used as substantive
evidence, subject to the provisions of Evidence Act. The said evidence is
admissible for the purposes stated in Sec. 146 (1) Sec. 153 of Exception (2)
and Sec. 155 (3) of Evidence Act.

Proper identification of voice is a sine-qua-non for the use of such

evidence, accuracy, relevancy must be proved. The Hon’ble Apex Court in the
case of ZIYAUDDIN BURHANUDDIN BUKHARI VS. BRIJMOHAN
RAMDAS MEHTA AIR 1975 SC 1788, considered the use of such
recordings and stated that those speeches recorded are “documents as
defined in Sec. 3 of Evidence Act, as equalent to photographs”. In this
scenario, now we have to know what is the view of Hon’ble Supreme Court in
this regard i.e admissibility of interviews as evidence in important cases.
APPROCH OF JUDICIARY

Admissibility of Interviews as Evidence was dealt In the case of

SHARAD YADAV AND OTHERS VS. UNION OF INDIA AND ANOTHER
82 (1999) DLT 13, 1999 (51) DRJ 371 where in an allegation in the charge
sheet is that Jain brothers paid Rs.5,00,000/- to him as illegal gratification,
during his tenure as Member of Parliament. There is no proof for the said
payment. But there was an Extra Judicial Confession alleged to have been
made by Sri Sharad Yadav during two interviews given to Zee T.V which
came to the conclusion that there is a Primafacie case against him.

The question falls for consideration is whether Sharad Yadav

admitted having received any amount as bribe from Jain brothers. Whether
the two interviews by him would amount to confession? It was held that there
is no clear admission by Sharad Yadav that he received amount from Jain
brothers towards bribe and only statement is that he received amount of
Rs.3,00,000/- from one Jain towards donation to the party fund which do not
amount to confession.

In the case of MOHD AFZAL VS. STATE (AIR 2005 SC 3820)

the Parliament Attack case, Afzal in the course of his interview with T.V.
absolved Gilani of his complexity in the conspiracy. A reporter of Aaj Tak TV
channel was examined. A cassette was produced as evidence of his interview.
Counsel for Gilani argued that Afzal was pressurized by police to implicate
Gilani in the confessional statement. The interview of Afzal was admittedly
made in the presence of police, while he was in police custody and hence it
was held that the interview should not be relied upon.

In the case of Jagjit Singh Vs. State of Haryana 2006 (11)

SCC 1 The speaker of the Legislative Assembly of the State of Haryana
disqualified a member for defection. When hearing the matter, the Surpeme
Court considered the digital evidence in the form of interview
transcripts from the Zee News television channel, the Aaj Tak
television channel, and the Haryana News of Punjab Today television
channel. The court determined that the electronic evidence placed on record
was admissible and upheld the reliance placed by the speaker on the recorded
interview when reaching the conclusion that the voices recorded on the CD
were those of the persons taking action. The Supreme Court found no
infirmity in the speaker’s reliance on the digital evidence and the conclusions
reached by him. The comments in this case indicate a trend emerging in
Indian Courts and judges are beginning to recognize and appreciate the
importance of digital evidence in legal proceedings.

In the case of SAJIDBEG ASIFBEG MIRZA VS. STATE OF

GUJARAT ; when an accused in a murder case was beaten by police in
custodial investigation, he was admitted in a hospital at Surat, a local T.V.
Channel interviewed him. During this interview he gave certain facts relevant
to prove his guilt. Later during trial, the prosecution moved a petition
requesting to summon the videographer to prove the guilt of the accused
through that extrajudicial confession given to the media, though the accused
raised objection that it is not admissible in evidence, the court did not agree
and summoned the videographer and examined him as a witness for
prosecution. When it was challenged before High Court of Gujarat citing the
decision of Hon’ble Supreme Court in Parliament Attack case, wherein it was
held that T.V. interview given by Mohammed Afzal to a T.V. Channel is not
admissible and Gujarat High Court upheld the decision of trial court saying
that the apex court, in the Parliament Attack case had rejected the
admissibility of Afzal’s statements as the interview was arranged by police and
interview was recorded in the presence of police and further held that defence
did not raise any contention that production of the evidence in question, in the
form of Video cassette of the interview or examination of the videographer, is
going to prejudice the accused, hence, rejected the contention of accused that
interview of accused given to Media is not admissible in evidence.
 In the case of ANVAR P.V. VS. P.K. BHASHEER AND OTHERS,
[MANU/SC/0834/2014]. the Supreme Court held that the provisions of Secs.
65-A and 65-B of the Evidence Act created a special law that overrides general
law of documentary evidence and held that secondary data in CD/DVD/Pen
drive are not admissible without a certificate under Sec.65-B of Evidence
Actand oral evidence cannot be adduced in such electronic record without a
certificate.

The certificate under Sec. 65-B of Evidence Act must contain

the following things;

i.) Identifying the electronic record containing the statement and

describing the manner in which it was produced.
ii.) giving particulars of device.
iii.) dealing with any matters to which the conditions mentioned in
Sec. 65 B (2) relate and must be signed by a person
occupying a responsible official position in relation to the
operation of the relevant device or the management of the
regular activities. Source and authenticity are the key
factors for admissibility of such electronic evidence
including T.V. interviews.

But, in the recent Nirbhaya Case incident, when a C.D.

containing T.V. interview of Gang Rape victim’s friend, who is the sole eye
witness to the incident, sought to be admitted as evidence by the accused to
cross-examine the said witness, to bring out certain contradictions and
questioned the credibility of the prosecution witness, contending that the said
interview to the T.V. Channel was a statement given during the course of
investigation. The trial court refused the plea of accused holding that the C.D.
is not admissible piece of evidence and the same was overruled by the High
Court of Delhi. When the matter was carried to Supreme Court by the
prosecution, wherein it was held that since the interview was given after the
final report was filed against the accused, hence, it cannot be used as
evidence and further stated that the interview was taken in violation of the
Criminal Procedure Code that restrained the media from covering trial and
inquiry proceedings related to rape.

In the light of some of the Supreme Court decisions about

admissibility of interviews as an evidence, the television interviews can now
give different connotation to various complicated issues.

Thus, Supreme Court had added a new and significant chapter to

the conservative criminal jurisprudence and given a role to the Media in
Criminal trials by ruling that interviews given by an accused to T.V. channels
could be considered as evidence by courts.

Admissibility of the T V Interviews is considered to discourage the

Suspects or accused from giving any public statements when the investigation
is still on, as it complicates the investigation in cases where the accused
would want to change his statement later. Those accused who seek to use
their interviews to influence investigation need to watch out. Moreover, such
public statements through interviews are admissible in the court of law as
they are regarded as voluntary disclosures and not made under pressure.

Media is the voice of the nation. There may be some digital

manipulations. To avoid this, it is important that the credentials of the
journalist who is covering a sensitive issue or interviewing the accused, be
well established. It is the age of audio visual media. One must make use the
most of it in every possible way. The authenticity of the T.V. interviews needs
to be checked.

As long as the police and the media are working towards the same
goal of finding out the criminal and collection of evidence when the accused
makes a statement in T.V. interview, which is admissible in court of law, it
would help the investigating agency and e-audio-video bytes make a strong
evidence. When the accused has a constitutional right of maintaining silence,
but voluntarily makes a statement admitting commission of offence in a T.V.
interview, that can be taken into consideration.

CONCLUSION

The relationship between law and technology has not always been
an easy one. However, the law has always yielded in favour of technology
whenever it was found necessary. The concern of the law courts regarding
utility and admissibility of interviews and tape recorded conversation from
time to time found its manifestation in various pronouncements.