Since the passing of the new criminal laws (BNS, BNSS and BSA), understanding the use of image, audio, video as an evidence in electronic/digital form has become essential. Any person recording the electronic evidence (DATA) should ascertain that the recorded evidence is not tamper with.

Tampering with 'necessary data' means - one should not copy, paste, an/ or transfer the file to another device or move it to another folder. The data should be kept in the way it is recorded since it changes it’s hash value (a unique numeric value that identifies the contents of a file).

Every image/audio/video/data that is recorded has an original hash value which gets altered if any modification is done to it, and the same can be examined by any expert. If any data is transferred without following due process, the data loses its value and may become secondary evidence or inadmissible. Hence it is important to follow steps mentioned below with regards to any recorded data.

One should contact an expert to get the data mirrored to any other device, pen, drive, hard drive, etc. One should keep the device intact in which the data is recorded. If one has transferred data via migration to a new device, then the data remains intact, since in this case, the data is mirrored, hence there's very low chance of encountering any tampering of the digital evidence.

It is also important to understand that one should avoid recording a video of a duration not longer than five minutes unless absolutely NECESSARY. The reason behind this is - if the recorded audio/video is of approximately five minutes or less, then it takes considerably a much lesser time to prepare its transcript. It is always recommended to record a video rather than an audio, if the situation permits. While recording a video, try to capture the facial identity of all the people involved in the incident since it can support and corroborate your argument during court proceedings.

A person is required to furnish a certificate under Section 63 (4) ( a ) (c) in support of the data, which is being provided as evidence. The Certificate is divided into two parts: Part A and Part B. Click to download Certificate sample.

Part A is to be provided by the person who has recorded the video or in whose device the video is recorded and part B by the expert who is examining the data and its hash value. Providing Part A is mandatory whereas

Part B may be called upon by the court at a later stage. It is advisable that a person also take Part B since it brings more authenticity to the data. The data being provided to the court should also be supported by its transcript since it helps the court understand what is being spoken in the recorded video/audio.

Data Mirroring

When a person has collected the data that he wishes to submit to the Court in a USB drive, he should never connect the USB drive to any other device simply for 'checking' purposes. Any 'checking' should be done before transferring the data to the pen drive. It is because a person may end up changing the hash value of the data while checking the data on the USB drive. Always remember, the data has to be mirrored to the pen drive and not transferred by way of copying. (Google/ Youtube for instructions related to mirroring a data on to a different device or drive).

e-Sakshay App

If one feels that they don't posses the necessary skills and knowledge to carry out the above mentioned steps, they may use e-Sakshya app, a Government of India approved application, which helps in undertaking major tasks for providing data as evidence in the court.

In the app, there is a limitation of recording of a video of up to 5 minutes. The app stores and provides the necessary information that one would need to provide any electronic data as evidence in the court.

Lastly, if you feel there is something important in any of your recorded data, then one should not sell or discard the device in which it is recorded. The device should be kept intact in case of any dispute in the court.

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