USE OF CCTV FOOTAGE AS EVIDENCE
7.5 Law of Evidence
(Project Rough Draft)
Submitted by
RITU RAJ
UID No - UG18-75
[Link].B.(Hons.)
Year: IV Semester: VII
Submitted to
Dr. Himanshu Pandey
Associate Professor of Law
Ms. Priyanka Mardikar
Assistant Professor of Law
August 2021
MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR
TABLE OF CONTENTS
INTRODUCTION ......................................................................................................................3
AIM ............................................................................................................................................4
OBJECTIVES .............................................................................................................................4
SCOPE & LIMITATIONS ..........................................................................................................4
RESEARH METHODOLOGY ...................................................................................................4
Relevance of Electronic Evidence ...............................................................................................5
Related Provisions under Evidence Act .......................................................................................5
Section 65 B of Indian Evidence Act, 1872 .................................................................................7
Judicial Approach towards Electronic Evidence ..........................................................................7
Mandatory requirement ...............................................................................................................8
Importance of CCTV Recording ..................................................................................................9
Status of CCTV footage as evidence ...........................................................................................9
Procedure for admissibility of CCTV footage in evidence ......................................................... 10
CONCLUSION ......................................................................................................................... 11
INTRODUCTION
A CCTV system tracks the inside and outside of a building and sends the indications to a screen.
If you are worried about the safety of your workspace, CCTV installations in India will assist
you in protecting your property from anywhere at any time. CCTV services are also being used
as an extra weapon in the war against crime in several countries around the world. CCTV
cameras are found almost everywhere nowadays, be it on roads, outside localities, hotels, parks,
you name it and you can find them there.1 Since the introduction of CCTV from the past few
decades, it has played a huge role in helping investigating agencies in solving crimes. Where eye
witness is not available and CCTV footage is there it has been used as an instrument in solving
crime; does this mean that CCTV footage is equal to testimony of eye witness?
There are various troubles with testimony of eye witness and it is not always reliable, like
problem related to the memory of the eye witness, witness being bought by the culprit and
thereby his or her turning hostile, witness may be an interested witness and he may be lying, etc.
All these circumstances make the evidence of the witness unreliable and lead to acquittal of the
alleged accused person. 2 Similarly, CCTV footage have its own problems, like the image quality
of the footage, CCTV does not record the sound, blurry footage, whether CCTV camera was in
proper working condition or not, etc. These are just few example of problems with CCTV and
with eye witnesses and it is presumably safe to say that CCTV footage recording is also not fully
reliable and it cannot be blindly relied upon without corroborative evidence.
We will attempt to explain the significance of identifying the charged individual in light
of Section 9 of the Indian Evidence Act, 1872. In situations where there is no one to determine
the identification of the convicted person, the performance of the offence may be proven by
circumstantial evidence. CCTV footage is one example of such evidence. Secondly, this article
examines the nature of CCTV footage using different case laws and asks if a lawsuit can be
formed strictly on the grounds of a single element of CCTV footage. Finally, to prevent
misunderstandings, here we will examine the procedure of electronic evidence admissibility in
court in light of Section 65(b) of the IEA.3
1
[Link] visited on 16/08/2021
2
[Link] visited on 16/08/2021
3
[Link] visited on 16/08/2021
AIM
Aim of the researcher is to understand the importance of CCTV footage as electronic evidence.
The researcher also aims to focus on the admissibility of CCTV footage as evidence under the
Indian Evidence Act, 1872. The researcher also desires to get acquainted with the evolving
legality pertaining to the admissibility of CCTV footage as evidence under Indian Evidence Act,
1872.
OBJECTIVES
1) To study the use of CCTV footage in the crime investigation.
2) To understand the importance of CCTV footage as evidence.
3) To study the evolving legality and admissibility of CCTV footage under Indian Evidence
Act, 1872
4) To vividly construe the significant judgments dealing with the evolving jurisprudence of
CCTV footage.
SCOPE & LIMITATIONS
The project deals specifically with CCTV footage as electronic evidence. The project focuses
upon the legality and admissibility of CCTV footage as evidence. The researcher through this
project has also endeavored to look over the evolving jurisprudence of admissibility of CCTV
footage in light of various judgments of Hon'ble Courts.
The project is limited in its scope as it does not deal with the complete concept of electronic
evidence. The project also focuses only on the CCTV footage as electronic evidence and its
admissibility and legality as the researcher does not intend to delve deep into the electronic
evidence and its pursuant admissibility.
RESEARH METHODOLOGY
This research w0rk is basically based up0n a d0ctrinal f0rm 0f research. As this research is
d0ctrinal, it is wh0lly based 0n the library research which includes the c0llecti0n 0f data fr0m the
b00ks that is the sec0ndary s0urces. The researcher has underg0ne vari0us b00ks in 0rder t0 get
the c0mplete kn0wledge 0f the t0pic. The researcher has read vari0us b00ks written by
pr0minent writers. The researcher has read the research t0pic and f0rmulated it in the research
pr0ject. The researcher has tried t0 c0llect inf0rmati0n 0n the f0rmulated t0pic thr0ugh vari0us
s0urces that includes b00ks, vari0us articles and the j0urnals. The researcher has tried t 0 imbibe
all the related the0ries and d0ctrines int0 the pr0ject.
Relevance of Electronic Evidence
Electronic evidence, also known as digital or e-evidence includes all the website data, social
media communications, e-mails, SMS, audio and video files, the document generated
electronically and every other information created, transferred or stored in electronic form.
Digital evidence is being used increasingly in civil as well as criminal litigation, even though its
admissibility has been a subject of controversy and debate in the past.4
Electronic records are and have been admitted in court but, previously, the courts relied on
conventional rules of evidence and grappled with reliability and authenticity of digital records.
The Indian Judiciary has started to accept e-evidence in the form of call records, mobile data,
CCTV footage, etc. With the backing of the law, the Indian courts that were previously reluctant
over the authenticity of e-data have started to accept it as a primary source of evidence in cases
brought before them. Keeping up with the times, in the year 2000 which brought in
corresponding amendments to existing Indian statutes to make digital evidence admissible. The
IT Act, which is based on the UNCITRAL Model Law on Electronic commerce, led to
amendments in the Indian Evidence Act, 1872, Indian Penal Code, 1860 and Banker's Evidence
Act, 1891.5
Sections 65A and 65B of The Indian Evidence Act were introduced by the amendment in 2000.
The objective of this amendment was to lay down the standards for admissibility and
authentication of electronic evidence in the courts. With the change in law, Indian courts have
developed case law regarding reliance on electronic evidence. Judges have also demonstrated
perceptiveness towards the intrinsic 'electronic' nature of evidence, which includes insight
regarding the admissibility of such evidence, and the interpretation of the law in relation to the
manner in which electronic evidence can be brought and filed before the court.
Related Provisions under Evidence Act
As we know the evidence act was drafted to codify principle of evidence and fundamental rule of
evidence. The definition of 'evidence' has been amended to include electronic records. The
definition of 'documentary evidence' has been amended to include all documents, including
4
[Link] visited on 17/08/2021
5
[Link] visited on 17/08/2021
electronic records produced for inspection by the court. Section 3 of the evidence act, 1872
defines evidence as under:
"Evidence"- Evidence means and includes:- 1) all statements which the court permits or requires
to be made before it by witnesses, in relation to matters of fact under inquiry; such statements
are called oral evidence; 2) all documents including electronic records produced for the
inspection of the court. Such documents are called documentary evidence.
Section 62 of the evidence act says primary evidence of the contents of a document is the
document itself. On reading the section 63, secondary evidence of the contents of a document
includes, amongst other things, certified copies of the document, copies made by the mechanical
processes that ensure accuracy, and oral accounts of the contents by someone who has seen in
section 65 of the act and the secondary evidence listed in section 63 can be used to prove its
content.
Prior to 2000 in India, electronically stored information was dealt with as a document, and
secondary evidence of electronic records were adduced as 'documents' in accordance with
sections 63 of the act. Printed reproductions or transcripts of the electronic record would be
prepared and its authenticity was certified by a competent signatory, who would identify their
signature in court and be open to cross examination. However, this procedure was rather archaic,
based on the law drafted a century ago, and did not include the meta data where it was available,
such as the header information in e-mails, for instance.
Recently, in the case of Anvar P. K. v P.K Basheer & ors., Supreme Court overruled the
statement of law on admissibility of secondary evidence pertaining to electronic record, as held
by the court in case of State (NCT of Delhi) v Navjot Sandhu alias Afsal Guru 6.
Honorable Supreme court in case of Anvar P.K vs. P.K Basheer & ors.7, further explained the
position by saying that "an electronic record by way of secondary evidence shall not be admitted
in evidence unless the requirement under section 65 B are satisfied. Thus in case of CD, VCD
and chip etc., the same shall be accompanied by the certificate in term of section 65B obtained at
the time of taking the document, without which the secondary evidence pertaining to that
electronic record is inadmissible."
6
(2005) 11 SCC 600
7
(2014) 10 SCC 473
Section 65 B of Indian Evidence Act, 1872
Section 65 B of Indian Evidence Act 1872 provides notwithstanding anything in this act, any
information contained in an electronic record which is printed on a paper, stored, copied in
optical or magnetic media produced by the computer shall also be deemed to be a document, if
the conditions mention in subsection (2) satisfied.
These conditions are: condition in respect of computer output shall be:
(a) electronic record containing the information should have been produced by computer during
the period over which the same was used regularly to store or process the information for the
purpose of any activity regularly carried on over that period by the person having lawful control
over the use of computer.
(b) Information of the kind contained in the electronic record or of the kind from which the
information so contained is derived was regularly fed into the computer in the ordinary course of
the said activity.
(c ) During the material part of the said period, the computer was operating properly or; if not
then in respect of any period in which it was not operating properly or was out of operation
during that part of period, was not such as to affect the electronic record or the accuracy of its
content.
(d) The information contained in the electronic record reproduced or is derived from such
information fed into the computer in the ordinary course of the said period.
Section 65 B (4) provides the certificate, which identified the electronic record containing the
statement and described the manner in which it was produced giving the particulars of the device
involved in the production of records and deals with the conditions mentioned in section 65B (2)
and is signed by the person occupying a responsible official position in relation to the operation
of the relevant device shall be evidence of any matter stated in the certificate.8
Judicial Approach towards Electronic Evidence
Supreme court in its previous judgment in the case of State (NCT of Delhi) v Navjot Sandhu alias
Afzal Guru9, 2005 held that irrespective of the compliance with the requirement of the section
65B, which has a special provision dealing with the admissibility of the electronic records there
8
[Link]
records-as-secondary-evidence visited on 17/08/2021
9
Supra at 6
is no bar in adducing secondary evidence under section 63 and 65, of an electronic record.
Section 63 merely provides that secondary evidence means and includes "copies made from the
original by mechanical process which in themselves ensure the accuracy of the process and
copies compared with such copies."
Following the principle of that generalia specialibus non derogant, which means special law
will always prevail over general law, court in case of Anvar P.K vs. P.K. Basheer & ors has
overruled the holding of Afzal Guru's case and held inadmissibility of the CD's as these
electronic evidence produced without the compliance of the requirement of the section 65B. Here
the special provision of the law is the section 65B of the Indian Evidence Act 1872.
The judgment in Anvar’s case signifies the concern of our judiciary on reliability of the
electronic evidences. The new approach set up by the court is that the general law relating to
secondary evidence is not applicable in electronic evidence. Electronic records being more
susceptible to tampering and alteration so if the electronic records, which is not complying with
the special provision of the Indian evidence act that is section 65B, may led to the travesty of
justice.
On an overall analysis of the above-mentioned cases, it follows that the admission of electronic
evidence has been based on judicial discretion. However, the SC made an effort to settle all these
controversies in the case of Anvar. With the intention of bringing uniformity in practice, the SC
interpreted section 65B as mandating one particular method of authentication, i.e., submission of
the certificate as a compulsory pre-condition for admissibility of electronic evidence. 10
After the Anvar case, for the presentation and admissibility of any electronic evidence like
computer data, CD, VCD, chip any other digital record, there is mandatory necessity to comply
with section 65B of the Act.
Mandatory requirement
If the requirements in Section 65b(2) are met, any information found in an electronic record,
which is printed on paper, stored, registered, or copied in optical or magnetic media created by a
machine, is considered to have been a piece of information (under the Evidence Act) despite
anything in the Evidence Act. If the requirements in Section 65b(2) are met, the material over
which the information contained inside an electronic record is published, or the optical or
magnetic media-generated either by software where such data is stored, recorded, or replicated,
10
Supra at 5
shall be admissible in any proceeding as proof of any nature of the initial or of any truth
specified, despite evidence or production of the original.
When a claim in the proof is obtained under Section 65b, Section 65b(4) enables the creation of a
certificate that, among other things, identifies the electronic copy containing the statement,
explains how it was generated, and specifies the system used to make the electronic record to
demonstrate that it was generated by a compliant system.
Importance of CCTV Recording
The '5WH' inquiry model11 could be described as a series of issues: who has been involved in an
incident, where does that begin, what unfolded, when did this occur, why does it take place, and
how were some violations perpetrated.12
Investigators will view the entire incident thanks to CCTV video. The video depicts the timeline
of activities, the criminal’s tactics, and the perpetrator’s entrances and exit directions. Though
this may not be possible for a variety of reasons, CCTV footage may be useful in disproving
other types of evidence, such as witness testimony. The video can help investigators determine
who had been involved in the incident either directly, like when a suspect is identified, or
indirectly, including when the criminal touches a material from which forensic evidence can be
recovered. The recordings can still aid investigators in determining the criminal's timeline. The
CCTV video will be used by investigators to check the authenticity of both the suspects’ and
witnesses' claims.
Since CCTV video can lead to a perpetrator's pleading guilty, it can help save money by
preventing court trials. The video may be used to prove or disprove the suspect's guilt or
innocence. Investigators use video evidence as a source of material evidence for witness
statements, and it aids in the search for the missing person or suspect.
Status of CCTV footage as evidence
When a crime is committed, the accused person is convicted on the basis of evidence. The status
of the CCTV footage can be discussed with reference to two different scenario: –
1 When the sole available evidence is CCTV recording, can it be used as a substantive evidence
to prove actus – reus at the instance of the accused?
11
[Link] visited on 18/08/2021
12
[Link]
electronic-records-as-secondary-evidence visited on 18/08/2021
2. What will be the status of CCTV footage when the recording and the testimony of eye witness
are not corroborating with each other?
In both the situations, if the CCTV footage if proper and clear and the origin of the CCTV is
proved beyond reasonable doubt, it will be enough to establish the actus – reus at the instance of
the accused person. At the global level also, Ld. Courts have observed the relevancy and
importance of CCTV in evidence during trial. In Gubinas and Radavicius v HM Advocate,
High Court at Aberdeen, Scotland13, in para 59 mentioned about the genuineness of CCTV
Footage and observed that even if all the witnesses say one thing and CCTV shows something
else, then the electronic evidence will be relied upon and not the ocular evidence given by the
witnesses. This observation made by the Court makes it clear that the content of CCTV footage
is considered sufficient to establish the commission of crime and for identification of accused
person. In a case of Tomaso Bruno & Anr. v State of U.P.14, murder of one Italian National
was committed in Varanasi and two other Italian Nationals were convicted for the murder. The
Apex Court observed that CCTV footage is a strong piece of evidence which could have
established the crime and failure on part of prosecution to produce the CCTV footage raises
serious doubt about prosecution’s case. In a case of K. Ramajayam @ Appu v The Inspector
of Police15, CCTV cameras were installed in the shop which clearly showed that accused entered
the shop, stole jewels and committed murder. The face of the accused was identifiable from the
footage. The accused was arrested who confessed the commission of crime and the clothes which
the accused was wearing at the time of crime were also recovered. The CCTV recording along
with the photograph of the accused was sent for examination to Forensic Science Department. In
this case other than CCTV, there was other incriminating evidence and hence the accused was
convicted and sentenced to life imprisonment.
Procedure for admissibility of CCTV footage in evidence
Whenever any electronic evidence is used as an evidence, it is mandatory to prove the content of
electronic record in accordance with Section 65B of the IEA. The primary purpose of Section
65B is to sanctify proof by secondary evidence. Recently, Apex Court in the case of Arjun
Panditrao Khotkar vs Kailash Kushanrao Gorantyal16, revisited section 65B of the IEA and
13
[2017] HCJAC 25
14
(2015) 7 SCC 178
15
2016 (2) CTC 135
16
2020 SCC OnLine SC 571
clarified the air by settling the conflicted position of Section 65B. The Court overruled the
judgment in Shafhi Mohammad v State of Himachal Pradesh 17 and held that certificate
required under section 65B(4) is a condition precedent to admissibility of evidence by way of
electronic record, as held by a three judge bench in Anvar P.V. v P.K. Basheer 18. The Learned
Court in its recent judgment of Arjun Panditrao's also clarified that the certificate under section
64B (4) is unnecessary if the original document itself is produced before the Court for inspection.
Hence, the position as per requirement of the certificate is clear as of now.
In case of CCTV, cameras captures image and it is converted to digital through Digital Video
Recorder (hereinafter referred as DVR). The DVR is an electronic record as it stores data in
electronic form. If the DVR is itself brought to the Court, it will be deemed as a primary
evidence under section 62 of the IEA as the original document is itself produced before the Court
for inspection and there will be no need to comply with the conditions of Section 65B (4) of the
IEA.
However, if there are a large number of cameras installed and the information is digitally stored
in huge servers, it is not possible to bring the entire set up before the Court. In such case the only
available option is to copy the data from the huge server to a CD or a USB and then produce it
before the Court. Such USB and CD are not the primary evidence and thus compliance of section
65B (4) is mandatory. A certificate is to be obtained from the person who is in charge of the
server. The main purpose of certificate is to establish the proper working condition of the
computer from where the electronic record is produced before the Court for inspection, so that it
can be established that the content has not been ill-treated or tampered with due to fault in the
computer. The certificate has not been made a requisite to prove the truthfulness of the content of
the computer generated record.19
CONCLUSION
In today's era, CCTV cameras are installed almost everywhere to keep a check on crime. The
investigating agencies have time and again taken help of CCTV footage in solving crimes and
apprehending the culprits. The CCTV shows a true picture of the incidents and due to this
authenticity, the Courts are highly relying on its credibility. Since the addition of section 65B in
17
(2018) 2 SCC 801
18
(2005) 11 SCC 600
19
Prachi Agarwal,CCTV footage: A silent witness available at
[Link] visited on 20/08/2021.
the IEA, the Supreme Court has given many decisions regarding the importance of admissibility
of electronic evidence. When the CCTV footage is clear, the origin of the footage is established
and it has complied with the requisites of Section 65B of the IEA, it can be used as best
evidence. A corroborated case can be established on the basis of the single piece of the CCTV
alone. The CCTV evidence cannot be said to be equivalent to the testimony of witness as the
testimony of eye witnesses may differ from each other and they have the tendency and capacity
to change their statement. However, the CCTV footage of adequate quality shows the actual
occurrence of the crime and the inference of crime and identification of accused can be drawn
from such evidence. 20 If 10 people see an event and give the details of the event, undoubtedly the
statement of all the 10 persons will differ in some way or another, but CCTV footage does not
suffer from fallacies which makes it superior to human testimony. Even if the CCTV footage is a
stand-alone evidence, its value cannot be undermined and it may be regarded as best evidence for
the identification of the accused person. If there are eye witnesses also, then CCTV may either
assist or supplement the testimony of such witnesses.
20
Ibid.
