admissibility of electronic evidence as primary evidence
1. The prosecution has admitted in open court that it does not have any evidence, documentary or material, to prove the charges against the accused except for a cd and a memory card containing 6 clips of calls purportedly recorded by the complainant using his mobile. The prosecution had sent sent the cd and the memory card with the mobile to FSL Delhi for their report. The forensic report states that there is no interfarence in the recordings in the cd and the memory card and both recordings are similar. There is no report on the the voice as there was no voice sample taken / given by the accused on grounds on constitutional protection available
2. Since the prosecution cannot introduce this memory card / cd as secondary evidence in absence of the mandatory certificate as laid down in the evidence act 65 ( b) and as stipulated in the supreme court judgement on Anwar Bashir case, they are trying to introduce this as primary evidence stating that this was the mobile used along with the memory card to record the calls made by the complainant with the accused.
3. However there is no forensic report on the mobile handset available. There are also no call records data available nor is the IMEI no of the mobile handset nor IMSE no of the sim card confirming the use of this mobile handset in the said call recording. Additionally the mobile purported to have been used does not have any inbuilt call recording feature.
4. In view of the above position kindly advice on the legality of the above stand of the prosecution and the line of arguements to be persued to counter the prosecution and seek quashing of the trial order as no case is establised / made out against the accused. May relevent judgements also be provided to counter the prosecution and seek necessary relief from the court.