‘Oculus Investigation System ’ is a device that aims to video record the statements made by witnesses to better serve in the interest of justice. Since the ‘Oculus Device’ is an electronic record the pertinent question would be its admissibility in court. Being a statement under S.161 everything said above would apply to its admissibility nature, which means that it can only be used to contradict or for cross examination. Section 65B(4) of the Indian Evidence Act, 1872 requires for a certificate for electronic evidence being submitted in the court. Section 65B allows for secondary evidence (copies of the information from the Oculus Device) to be submitted only after the 65B(4) certificate is produced but if the original/primary electronic record (which is Oculus device itself) is submitted in the court then the certificate is not required. If the Oculus Device (primary evidence) cannot be produced in the court then the copies of the recorded statements (secondary evidence) must be submitted with a certificate under 65B(4), this was laid down in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao

‘Oculus Investigation System ’ is a device that aims to video record the statements made by witnesses to better serve in the interest of justice. Since the ‘Oculus Device’ is an electronic record the pertinent question would be its admissibility in court. Being a statement under S.161 everything said above would apply to its admissibility nature, which means that it can only be used to contradict or for cross examination. Section 65B(4) of the Indian Evidence Act, 1872 requires for a certificate for electronic evidence being submitted in the court. Section 65B allows for secondary evidence (copies of the information from the Oculus Device) to be submitted only after the 65B(4) certificate is produced but if the original/primary electronic record (which is Oculus device itself) is submitted in the court then the certificate is not required. If the Oculus Device (primary evidence) cannot be produced in the court then the copies of the recorded statements (secondary evidence) must be submitted with a certificate under 65B(4), this was laid down in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao

Gorantyal & Ors which overruled the judgement in Shafhi Mohammad v. State of Himachal Pradesh which said the the certificate in 65B(4) is not mandatory if ‘substantial compliance’ with the law is shown.

Case laws in the recent past that talked about or laid foundation for mandatory audio-video recording of witness statements:

1) Honourable Supreme Court of India in Shahfi Mohammed v. State of Himachal Pradesh, the integration of Audio and Video recording into criminal investigation was initiated in a meeting by the Union Home Secretary and Secretaries of the state.

A committee of experts (COE) created a road map for the same. It is envisioned that still photos taken at crime scenes would be sent to a central server and emailed back to police stations for further use, in order to prevent tampering. Further, it is envisioned that statements of witnesses would be video graphed.

The judgment also noted that electronic evidence would have to be held to a higher evidentiary standard due to the fact that it is prone to manipulation. Hence, the tamper-protection envisioned for the Oculus device is well-founded with protections such as geo tagging and hash value.

2) In Delhi High Court Judgement dated 20/8/2018, Ramesh Kumar v. State of Delhi, the court rejected the excuses given by Delhi Police for failing to implement videography of proceedings (recording of witness statements by the police).

i)The storage devices will become obsolete or inoperable by the time evidence is recorded in court,

The court stated that digital recording of proceedings would lend immense credibility to the criminal justice system, especially the Police department, and directed the central and state governments to provide enough funds to set up the infrastructure to video record witness statements.

ii)The cloud computing technology which needs to be used has issues of data security, hacking, ownership of clouds, access rights and digital ‘red tape’.

Both the arguments of the police are rejected by the honourable high court as excuses.

3) In a Madras High Court Judgement dated 29/11/2019, The court reiterated that the prosecution should examine eyewitnesses as early as possible and their statements must be recorded using electronic audio-video means under section 164 CrPC Noting that the Supreme Court has directed the High Courts to notify the Trial Courts and the following directions were issued to all the investigation officers [of the state]:

a) Statements under Section 164 CrPC for offences punishable for 10 years and above should be recorded using audio-video means.

b) The same should be followed in offences against all women and children under various special enactments.

C)The facilities for audio-video recording should be provided at all the Magistrate courts, Mahalir courts and Sessions courts by the state government and is also responsible for the storage of the data.

d) It was noted that digitally recorded evidence will give appellate courts the advantage of looking into the demeanour of the witness.