Supreme Court of India
Shri N. Sri Rama Reddy Etc vs Shri V. V. Giri on 27 April, 1970
Equivalent citations: 1971 AIR 1162, 1971 SCR (1) 399
Author: C Vaidyialingam
Bench: Sikri, S.M., Shelat, J.M., Bhargava, Vishishtha, Mitter, G.K., Vaidyialingam, C.A.
PETITIONER:SHRI N. SRI RAMA REDDY ETC.
Vs.
RESPONDENT:SHRI V. V. GIRI
DATE OF JUDGMENT:27/04/1970
BENCH:VAIDYIALINGAM, C.A.
SIKRI, S.M.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
MITTER, G.K.
CITATION:
1971 AIR 1162 1971 SCR (1) 399
1970 SCC (2) 340
CITATOR INFO :
E 1973 SC 157 (21,22)
R 1975 SC1788 (21)
RF 1986 SC 3 (29,146,174,218)
ACT: Evidence Act (1 of 1872), ss. 146 (1) 153, Exception (2) and 153 (3)-Tape-recorded statement of witness-Whether admissible to contradict his Evidence in Court.
HEADNOTE: The petitioners filed an election petition under the Presidential and Vice Presidential Election Act, 1952 and according to them undue influence was exercised by the publication and, distribution of certain pamphlets containing scurrilous attacks on the defeated presidential candidate. The name of persons who were alleged to have distributed the pamphlets were mentioned in the particulars supplied in the election petition. When one of them was in the witness-box as a witness for the returned candidate, he denied in his chief-examination that he distributed the pamphlets. When it was suggested to him in cross- examination that he attempted to dissuade one of the petitioners from filing the election petition as otherwise serious consequences would follow, the witness denied the suggestion. A tape recorded conversation between the witness and the petitioners was sought to be given in evidence by playing the tape-record to impeach the credit of the witness.
On the question of the admissibility of the evidence,
HELD : (1) A previous statement made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in court but also to contradict his evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality. Apart from being used for corroboration, the evidence is admissible in respect of the other three matters under ss. 146(1), 153, Exception (2) and s. 155(3) of the Evidence Act. If a previous statement made by a person can be used to corroborate his evidence given before court, on principle, there is no reason why such previous statement cannot ‘be used to contradict under s. 153, Exception 2 and also for the other purposes under ss. 146(1) and, 155(3). [410 B-C, D-E] S.Pratap Singh v. State of Punjab, [1964] 4 S.C.R. 733, Yusuffalli v, Maharashtra State, [1967] 3 S.C.R. 720 and R. v. Maqsud Ali [1965] 2 All. E. R. 464, referred to. Rup Chand v. Mahabir Parshad, A.I.R.,1956 Punj. 173 and Manindra Nath v. Biswanath, 67 C.W.N. 191, approved.
(2) The expression ‘which is liable to be contradicted’ in s. 155(3) does not mean ‘which is relevant to the issue’. The observation contra in Khadijah Khanum v. Abdool Kurreem Sheraji, 1890 I.L.R. 17 Cal. 344 is too broadly stated. But even if it mean ‘relevant to the issue’ the taperecorded statement in the present case, is relevant to the issue before this Court, namely, ‘whether the respondent, or any person with his connivance, printed, published and distributed the pamphlets.” [411 B-C, E]
JUDGMENT:
ORIGINAL JURISDICTIONElection Petitions Nos. 4 and 5 of 1969.
Election Petitions in Admissibility in Evidence of Tape- Recorded Conversation.
K. C. Sharma, K. I. Rathee, M. S. Gupta, C. L. Lakhanpal and S.K. Dhingra, for the petitioners (in E.P. No. 4 of 1969).
S. C.Malik,M. S.Gupta and K. L. Rathee, forthe petitioners (in E.P. No. 5 of 1969).
C. K. Daphtary, D. Narasaraju, S. Mohan Kumaramangalam, S. T. Desai, S. K. Dholakia, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for therespondent (in boththe petitions).
Jagadish Swarup, Solicitor-General, L. M. Singhvi and K. P. K. Nayer, for the AttorneY-General, Election Commissionand Returning Officer, Presidential Election. The Order of the Court was delivered by Vaidialingam, J. On April 1, 1970 Shri Jagat Narain (R.W.
25) was beingcross-examinedby the counsel forthe petitioners in Election Petition No. 5 of 1969, when certain suggestions were’ put to him that he had tried to dissuade the first petitioner in the said Election Petition, viz., Shri Abdul Ghani bhar from filing the election petition on political reasons and when the witness denied not only those suggestions but also certain other suggestions put tohim, counsel for the petitioner represented that Shri Abdul Ghani Dar had a tape recording of the talk that took place between him and the witness and he sought permission from the Court to play the same for being put to thewitness. Objection was raised by Mr. C. K. Daphtary, learned counsel forthe respondent, that the tape recorded conversation wasnot admissible in evidence.In view of this objection, counsel on both side were heard regarding the admissibility ofthe tape recordedconversation, on April 2, 1970and, after hearingarguments on both sides, wethen expressedthe opinionthat the tape recorded conversation couldbe received in evidence and that we would giveour reasons later.The further cross-examination and reexamination of the witness proceededin respect ofthe tape recorded conversation which was played in Court in thepresence of the witness.
We nowproceed to state our reasons for holding thatthe tape recorded conversation could be admitted in evidence. But wemake it clear that we have dealt with onlythe question regarding the admissibility in evidence of the tape recorded conversation, which is distinct and separate from the weight to be given to such evidence which question will be dealt with in the main judgment to be delivered in the election petitions. Beforewe deal with the question of admissibility ofthe tape recorded conversation, it is necessary to state that in Election Petition No. 5 of 1969 the, petitioners allege that offences of undue influenceat theelection hadbeen committed by the returned candidate and by his supporters with the connivance of the returned candidate.The material facts relatingto the strict allegations have alsobeen given in thepetition in paragraph 13 of the election petition. Ithas been alleged that on August 9, 1969 an unsigned pamphlet incyclostyled form and also printed pamphlet without bearing the name of its publisher or printer(marked as Exhibits P-18B and P 37-A respectively) were published by free distribution among the members of the Electoral College for the Presidential Election. Ithas been further alleged that the offence of undue influence was freelycommitted at the election by the returned candidate and the persons mentioned in the election petition and by their supporters and workers with theconnivance ofthe returned candidate, by voluntarily interfering and attempt- ing to interfere with the, free exercise of the electoral rights of the candidates and the various electors mentioned in the petition. It is further alleged that with the object of interfering with the free exercise of electoral rights by Sri N. Sanjiva Reddy, a candidate at the election, Sri Jagat Narainand certain other persons named in the petitionwho are describedas supporters and workers of the returned candidate in general with the consent and connivance ofthe returned candidate published, by free distribution, pamph- lets in Hindi and English in cyclostyled form as well as in printedform in which very serious allegations weremade againstShri Reddy which amounted to undue influenceupon the persons referred to in the election petition withinthe meaning of s. 171 (c) of the Indian Penal Code.There is a furtherallegation that these pamphlets weredistributed from August 9, 1969to August 16, 1969 among allthe electors of the Electoral College for thePresidential election and they were also distributed during this period in the Central Hall of Parliament by the various persons mentioned in the petition, which included Shri Jagat Narain. No doubt the allegations that undue influence in the manner mentioned was exercised by the respondent or by anybody with his connivance have been strongly refuted in the counter- affidavits filed by the respondent.
In the particulars given by Shri Abdul Ghani Dar, relating to the distribution of pamphlets in question, he has stated that the persons who distributed them between August 9and August 16, 1969 had already been mentioned in theelection petition. lie has further stated in the said particulars thatShri Jagat Narain was one of the persons who distributedthe pamphlets in the Central Hall of Parliament onAugust11, 1969 to the Members of Parliament whose names have also been given.
Issueshave been framed whether therespondent, orany personwithhis connivance, printed, publishedand distributed pamphlets and other matters connected therewith. In chief-examination, Jagat Narain, as R.W. 25, has stated ,hat he has never seen either of these pamphlets being distributed and that he has seen them only in Court, onthe day when he was giving evidence, viz., on March 31, 1970. He has also stated that he never received the pamphlets at salt. He has further reiterated that he has not distributed the pamphlet as spoken by some of the witnesses on theside of the petitioners and he has further affirmed that hehas never distributed thepamphlets in the Central Hall of Parliament and that he has not seen the pamphlets except in Court.In cross-examination, the witness wasasked about the telephone call that he had made to Abdul Ghani Dar about 6 or 7 days before the filing of theelection petition, i.e., in the first week or second week of September 1969; and suggestions her made that the witness attempted to dissuade Abdul Ghani Dar from filling the election petition on the ground that serious consequences wouldfollowfrom such action.Though the witness admitted that he had a telephone talk with Abdul Ghani Dar, he denied various other suggestions put to him regarding the nature of the talk that took place between him and Abdul Ghani Dar. It was atthat stage that the counsel for the election petitioner wanted the tape recording of the talk that took place between Abdul Ghani Dar and the witness to be adduced as evidence onthe groundthat the answers given by the witness in Courtwere quite contrary to the nature of the conversation that he had with Abdul Ghani Dar. Objection was raised to receiving the same as evidence.
Mr. Daphtary, learned counsel for the respondent, raised two contentions regarding the admissibility of the tape-recorded conversation between R.W. 25 and Abdul Ghani Dar: (1)The tape-recorded conversation cannot be admittedin evidence for contradicting the evidence of the witness;and (2) Under S. 155 (3) any former statement_before it could be put in evidence to impeach the credit of a witness, the Courtmust be satisfied that the previous statement is relevant tothe matterin issue and the tape recorded conversation, inhis case, has no relevance to the matters which are in issue in these proceedings.
Mr. Daphtary, learned counsel, did not dispute the correct- ness of two decisions of this Court to which referencewill be, made later, wherein the taped records ofconversation had been admitted in evidence.But, according, to him, in those cases them tape recorded conversations were admitted in evidence to corroborate the evidence given by a witness before the Court, and not. to contradict his evidence. Both the grounds of objection raised by Mr. Daphtary have, been controverted by Mr. Malik and by Mr. Sharma, learned- counselappearing for the election petitioners in Election Petitions. Nos. 5 and 4 of 1969, respectively. According to Mr. Malik. whose contentions were substantially adopted by Mr.Sharma,, issues havebeen framed whether undue influence hasbeen exercised by the respondent or byany otherpersonwith his connivance.According tothe petitioners undue influence has been’. exercised bythe publication and distributionof thepamphlets, making scurrilous attack about thepersonal character ofSri SanjivaReddy.Specific allegations have been made inthe election petition that R.W.25 isone of thosewho distributed the pamphlets in the Central Hall of Parliament with the connivance of the, respondent.The witness denied this allegation in chief-examinationand when certain suggestions, that the witness attempted to dissuadeShri Abdul Ghani Dar from filing his election petition onthe groundthat serious consequences would follow, were put to him in cross-examination, witness denied them and, ‘inthat contextthe tape-recorded conversation between the witness and Shri Abdul Ghani Dar assumes importance. Relyingupon that tape recorded conversation, counsel urged thathis clientis entitled to test the veracity of the witnessand to impeach the credit of the witness and satisfy the Court that the evidence given bythe witness before us is inconsistent or contrary to what he had stated on an earlier occasion.
In this connection counsel relied upon ss. 146, Exception 2 to s.153 and cl. (3) of s. 155 ofthe EvidenceAct. Section 146 deals with questions lawful in cross-examination and, in particular, cl. (1) thereof provides for a witness being cross-examined by questions being put to him which tend to test his veracity. Section 153 generally deals with exclusion of evidence to contradict answers to questions testingveracity, but Exception 2 states that if a witness is asked any question tending to impeach As impartiality and answersit bydenying the facts suggested,,he may be contradicted. Section 155 deals with impeaching the credit of witness by the various ways dealt with in clauses (1) to (4). One of the ways by which the credit of a witnessmay be impeached is dealt with in cl. (3) and that is by proof of former-
statement in consistent with any part of his evidence which is liable to be contradicted. Mr. Daphtary pointed out that S. 146must be read with S. 153. Wecannotacceptthis contention in its entirety. It may be that cl. (3) of s. 146 may haveto be read along with the mains. 153but clause (1) of s. 146 and exception (2) to s. 153 dealwith different aspects. Under s. 146(1) questions may be put to a witness in cross-examination to test his veracityand, under Exception 2 to s. 153 a witness may becontradicted when he denies anyquestion tending to impeachhis impartiality. :The object of the election petitioner to adducethe tape-recorded conversation as evidence is to impeach the testimony of the witness that he has neverseen the pamphlet and that he has never attempted to inducethe election petitioner not to file the electionpetition on threatof serious consequences, and to establish thatthe evidence given in Court is quite contrary to the statements made by him in the conversation that he hadwith Abdul Ghani. Dar and which has been recorded on tape. We will now refer to the case law on the subject. In Hopes ,and Anotherv. H.M. Advocate(1) a tape-recorded conversation which took place between a complainant and a black-mailer was played before the jury and sought to be put in evidence by a police ,officer who had listened tothe conversation as it was transmitted through theloudspeaker. Objections were raised to the admissibility of thesaid evidence. The learned trial Judge over-ruled the ,objection as follows :
“New techniques and new devices are the order of the day. I can’t conceive, for example, of the evidence ,of a ship’s captain as towhat he observed being turned down asinadmissible because he had used a telescope, any more than the evidence of what an ordinary personsees with his eyes becomes incompetent because he was wearing spectacles.Of course, comments and criticisms can be made, and no doubtwill be made, onthe audibility orthe intelligibility,orperhapsthe interpretation, of the results of the use of a scientific method; butthat ‘is another matter, and that is a matter of value, not of competency, Thesame can be said of visual observation by a witness who says hesees something; his evidencecan be criticised because of his sight or because of the sort of glasses he is wearing, and so on, butall these matters are matters of value and not of competency.
(1) (1960) Scots Law Times 264.
Accordingly, the learned Judge allowed the police officer to give evidenceas to what he heard on the tape recorder, which was played before the Jury.
On appeal to the High Court of Justiciary, it is seenthat no objection appears to have been taken to the competency of the evidencefurnished by the tape-recorder butthe admissibility of the evidence of the police officer based upon As hearing of the tape-recorded conversationwas objected to.This objection was over-ruled by theHigh Court of Judiciary stating that, it is competent forthe policeofficerto give evidence of conversation which he heard with the help of hearing aid or, as in the case before them, when the conversation is transmitted to him over a distance by wireless and that there may be criticism ofthe quality of his evidence and not about the competency ofthe evidence of what he has heard.The Court further observed at p. 267 “The Inspector’s evidence of theconversation was as much primary evidence as the evidence from the replaying of the tape recorder.Each received it at the same time,t he one recordingit in the human memory the other upon a piece of tape.”
From the above decision it is apparent that the tape itself is primary and direct evidence admissible as to whathas been said and picked up by the recorder.
In R. v. Mills(1) a conversation which had been recorded on tape between two of the persons was heard by a police officer who gave evidence that he has himself remembered the various remarks which passed between those two persons which could be corroborated by the conversation recorded onthe tape.But the tape recording itself was not introduced in evidence nor was there any production of the record by consentbefore the Jury. They referred to the decision of the High Court of Judiciary in Hopes Case(-) and heldthat according tothe said decision the tape recorded conversation was admissible as direct evidence.Thoughthe discussion inthe judgment shows that a tape-recorded conversation is admissible in evidence, ultimately the Court left open the question stating :
“The court hasnot debated, and isnot deciding,any broad and generalquestion of principlewhether evidentiary material obtained by the use of a tape recorder without the concurrence of a human being listening to the samesoundsis admissibleor isnot admissible in evidence in a criminal trial.”
(1) [1962] 3 All. E.R. 298.(2) [1960] ScotsLaw Times 264 L12Sup.CI/70-12 But itis significant to note that the Courtof Criminal Appealrejected the contention of the counsel forthe accused that there has been any question of introduction of hearsay evidence at the trial by the evidence of the police officer giving evidence after refreshing his memory from the tape.
The question again directly arose in R. v. Maqsud Ali(1). In that case a conversation which took, placein Punjabi dialectbetween two persons and which had been recorded on the tape was played before the jury and wasadmitted in evidence by the trial Judge. Objection was taken before the Court of Criminal Appeal regarding the admissibility in evidence of the tape recorded conversationbetweenthe accused. Therefore the point that specifically arose before the-Court of Appeal was ‘Is a taperecording assuch admissible inevidence, as a matter of law’?’ After referring to the observations in Mills’ Case 2 )the appellate Court notedthat the question regardingthe admissibility of a tape record was not actually decided in that case. The decision of the High Court of Justiciary in Hopes’Case(:”) was referred to and it was noted thatthe evidence of the police officer who listened to thetape recorder was held to be admissible. The Court said, at p. 469 :
“We think that the time has come whenthis court should state its views of the law on a matter which is likelyto beincreasingly raised as time passes. ‘For many yearsnow photographs have been admissible in evidence on proof that they are relevant to the issues involvedin the case and that the printsare taken from negatives that are untouched.The prints as seen represent situations thathave been reproducedby means of mechanicaland chemicaldevices. Evidence ofthingsseen through telescopes orbinoculars which otherwise could not be picked up by the naked eye have been admitted, and now thereare devices for picking up, transmitting,and recording, conversations. We can seeno difference in principle between atape recording and a photograph. In saying this we must not be taken assayingthatsuch recordings are admissible whateverthe circumstances, but it does appear tothis court wrong to deny to the lawof evidence advantages to be gained by new techniquesand new devices, provided the accuracy ofthe recordingcan be proved andthe voices recordedproperly identified; providedalso that the evidence is relevant and otherwise admissible, we are satisfied that atape recordingis admissible in evidence.Such evidence (1) [1965] 2 All.E.R. 464.
(2) [1962] All E.R. 298.
(3) [1960) Scots Law Times 264.
should always be regarded with some caution and assessed in the light of allthe circumstances ofeach case There can be no question of laying down any exhaustive set of rules bywhichthe admissibility ofsuch evidence should be judged.”
In consequence, the Court held that the tape-recorded conversation was admissible in evidence, subject tothe limitations mentioned in the above extract. It will therefore be seen that though the question of admissibility of a tape-recorded conversation had beenleft open in Case(1), the same was specifically consideredand decided affirmatively in Maqsud Ali’s Case (2). Beforewe deal with the decisions ofthis Court bearing on this point, it is necessary to advert to two decisions, one ofPunjab High Court _and the other, of the Calcutta High Court. In RupChand v. Mahabir Parshad(3)the defendant, in answer to a suit for recovery of a certain sum of money on the basis of a promissory note., put forward a plea that the original promissory notecontaining certain endorsement had been destroyed and had beenreplaced by anotherpromissory note bearing the samedate.The defendant attempted to substantiate this plea by theoral testimony of a broker but the latter declinedto support him. The defendant requested the Court to permit him to confront the broker witness with the conversation whichhad taken place between himself’ Blind the broker in regard to the destruction of the earlier promissory note and which,had been faithfully recorded on a tape-recorder. The plaintiff objected to the admissibility of theevidence by tape, recorder, but the trial Court over-ruled the objection.In the revision taken before the High Court by the plaintiff, the order of the trial Court was confirmed. The High Court relied upon s. 155(3) of the Evidence Act and held that as the broker appearing- as a witness in the case before it had made a statement to the defendant on a former occasion which was at variance with the statement made by himbeforethe Court,there can be no doubtthat the defendant could establish that a previous statement which was contradictory to theevidence given before the Court was made bythe witness to him.Dealing with the question whether a record of such a previous statement, as prepared by a scientific instrument. could be produced in Court as evidence, the High Courtheld that such a tape-recorded statementwas admissible in evidence, and observed as follows :
“I am aware of no ruleof evidence which preventsa defendant who is endeavouring to shake the credit of (1) [1962] 3 All E.R. 298.
(3) A.I.R. 1956 Punj. 173.
(2)[1965] 2 All E. R. 464.
4 0 8 witnessby proof of formerinconsistent statements’. from deposing that while he was engaged in conversation with the witness a tape recorder was in operation, or from producing the said tape-recorder in support of the assertion that a certain statementwas made in his presence.”
This decisionlays down two propositions :(i) that a taperecorded conversation is admissible in evidence and that
(ii) if it contains a previous statement made by a witness, it can be used to contradict the evidence given beforethe Court.
In Manindra Nath v. Biswanath(1) the Calcutta High Court had to consider whether a defendant was entitled to adduce in evidence a previous statement of the plaintiff and recorded on thetape to contradict the plaintiff’s evidence given beforethe Court and heldthat,the tape-recorded conversation was admissible in evidence and the previous statement recorded therein could be used to contradictthe evidence givenbefore the court. After referring toRup Chand’s Case (2) the Court observed at p. 192 “If the plaintiff, while he is in the witness box, makes a statement which isat variance with a statement previously made by him,the plaintiff may be asked whether hem ade such previousstatement and if he denies having made theprevious statement, such previous statementmay be provedby the defendant. There, as in this case, it is alleged that the previous statements ofthe plaintiffwere recorded in a tape-recorder, those statements may be admitted in evidence, if it is proved that they were made by the plaintiff andthat the instrumentaccurately recorded those statements. The fact that the statements were recorded in a tap-,-recorder and the recording was madebehindthe back andwithoutthe knowledgeof the plaintiff is by itself no objectionto the admissibility ofthe evidence.”
There are two decisions of this Court bearing on this matter S. Pratap Singh v. The State of Punjab(3) and Yusuffalli v. Maharastra(4).
In Pratap Singh’s Case(“,) it has been held that rendering of a tape-recorded conversation can be legal evidence by way of corroborating the statement of a person who deposesthat the other speaker and he carried on the conversationand even of the state-
(1) 67 S.W.N. 191.
(3) [1964] 4 S.C.R. 7533 (2) A.I.R. 1956 Punj. 173.
(4) [1967] 3 S.C.R. 720.
ment of a person who may depose that he overheardthe conversation between the two persons and what, they actually stated had been tape-recorded and that weight to be given to such evidence will depend on the other facts which may be established ina Particular case. Though there was a difference of opinion in the majority and minority judgments regarding certain other aspectswhicharosefor consideration,so faras the admissibility of it tape- recorded conversation in evidence, all the Judges appear to have been unanimous in the view that it was admissible.But it must be noted that in the majority judgment it is stated that it was not contended on behalf of the State thatthe tape-recordingwere inadmissible. Similarly, inthe minority judgment also it is observed that tape-recordings can be legal evidence by way of corroborating the statements of a person who deposes that the speaker and he carried on that conversation and, as it had not been held by the trial Court that the record of a conversation on tape isnot admissible in evidence for any purpose it was not necessary to pursue the matter further.
In Yusufjalli’s case(1) the question was whether a conversa- tion between the complainant and a person, who later figured ,as an accused on a charge of offering bribe, and recorded on tape was admissible in evidence. It is seen fromthe decision of this ,Court that the tape recorder was played in Court at the trial of the accused. This Court held that the evidence of the complainant was sufficiently corroborated by the tape-recorder and observed at p. 723 :
“The contemporaneous dialogue betweenthem formed part of the res gestae and is relevant and admissible under s. 8 ofthe Indian EvidenceAct. The dialogue is proved by Shaikh.The tape record, of the dialogue corroborates his testimony. Theprocess of tape-recording offers an accurate method of storing and later reproducing sounds.The imprint on the magnetic tape isthe direct effect of therelevant sounds. Like a photograph ofa relevant incident, a contemporaneous tape-record ofa relevant conversation isa relevant fact andis admissible under s. 7 of the Indian Evidence Act.”
Reference was made , with approval to the decision ofthe Punjaband Calcutta High Courts in Rup Chand’s Case(2)and Manindra Nath’s Case(3) and also to the earlier decision of this Court in Pratap Singh’sCase ( 4 ) where a tape- recorded conversation had been admitted in evidence.The decision in Maqsud Ali’s Case(5) wasalso quotedwith approval.
(1) [1967] 3 S.C.R. 720.
(2) A.I.R. 1956 Punj. 173.
(3) 67 C.W.N. 191 (4) [1964] 4 S.C.R. 733.
(5) [1962] 3 All. E R. 298.
In particular, it will be noted that this Court, in the said decision, approved of the decision of the Punjab High Court in RupChand’s Case(1) holding that tape-recording of a former Statement of a witness can be admitted in evidence to shake the. credit of the witness under S. 155(3) ofthe Evidence Act.
Having due regard to the decisions referred to above, it is clear that aprevious statement, made by apersonand recorded on tape, can be used not only to corroboratethe evidence givenby the witness in Court but alsoto contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeachhis impartiality. Apart from being used for corroboration,the evidence is admissible in respect of the other three last- mentioned matters, under s. 146 ( 1), Exception 2 to s.153 and s.153(3) of the Evidence Act. Thereforeit isnot possible for us to accept the contention of Mr. Daphtary that the previous statement can be used only for purposes of corroboration but not for the purpose of contradictingthe evidence given before the Court. If aprevious statement made by a person can be used to corroborate his evidence given before the Court, on principle, we do not seeany reasonwhy such previous statementcannotbe used to contradict andalso for the other purposesreferred to above.In particular the fact that the decisions ofthe Punjaband Calcutta High Courts Rup Chand’sCase(1) and Manindra Nath’s Case(2) where the previous statementshave been used to contradict the evidence given before the Court has been approved by this Court in Yusuffalli’s Case(,) clearly establishes that the contention of Mr. Daphtary that the previous statement cannot be usedto contradictthe evidence givenbefore the Court cannot be accepted.As pointedout already, Mr. Daphtary has not challengedthe correctness ofthe decisionin Yusuffali’sCase(3). Therefore the first ground of objection raised byMr. Daphtary will have to be overruled.
Comingto the second contention of Mr. Daphtary, whichhas been set out earlier, in our opinion that question becomes reallyaccademic when once we have held that the previous statement can be used to contradictthe evidence given ‘beforethe Court under. 155 (3)for thepurposeof impeaching the credit of the witness. But, as the question has been raised, we shall deal with that aspect also. According to Mr. Daphtary, the expression ‘which is liable to be contradicted’ in clause (3) of S. 155 means ‘which is relevant to the issue’.In support of this contention,the counselreferred us to the decision of the CalcuttaHigh Court in Khadijah Khanum v. Abdool Kurreem Sheraji(4)and pointed out that the said’ decision has been referred to in text-books on the Law of Evidence (1) A.I.R. 1956 1 (2) 67 C.W.N. 191.
(3) [1967] 3 S.C.R. 720.
(4) 1890 I.L.R. 17 Cal. 344.
vize., Wodroffe & Ameerali’s Law of Evidence, Field’s Law of Evidence and Sarkar’s Law of Evidence. In the Calcutta decision the Court has stated :
“I am inclined to think that in s. 155(3) of the Evidence Act the words, ‘which is liable to be contradicted,’ mean ‘which is relevant to the issue”.
In our opinion, the proposition has been too broadlylaid down by the learned Judge. A reference tothe various clausesin s.155 in our opinion does notwarrantthe interpretationplacedby the Calcutta HighCourt.For instance, under cl. (1), the evidence that iscontemplated and which could be given will certainly notbe directly relevant to the issue which is before the Court but will be of a general nature that the witness is unworthy of credit. Again, under cl. (2), the evidence regarding the receipt of bribe will only be to establish that the evidence ofthe witnessregarding the matters about which he speaks cannot be acted upon. Even otherwise, in this case, wehave already referred to the relevant issue bearing on the matter and we have pointed out that according to thecounselfor the petitioners their attempt is, to impeach the credit of R.W. 25, by establishing, if possible, that his evidence cannotbe relied on in view of the fact that he is making contradictory statements. On that basis, even applyingthe test laid down by the Calcutta High Court, itwill follow that the previous statement, recorded on tape, must be considered tobe relevant to the issue beforethe Court. Counselalso drew our attention to the decision ofthe Judicial Committee in Bhogilal v. Royal Insurance Co.(1) to the effect that ss. 153 and 155 of the Evidence Act must be strictly construed. There can be no controversy thatthe provisions ofany statute must be properly and strictly construed. This decision, hence, has no bearing onthe matter before us. It is also significant that the Judicial Committee, when dealing with s. 155 of the EvidenceAct, makes no reference to the decision ofthe CalcuttaHigh Court in Khadijah Khanum’s Case (2).
It follows that the second ground of objection, urged by, Mr. Daphtary,to theadmissibilityof this pieceof evidence, hasalso to be overruled.
In the result we hold that the conversation, which is stated to have taken place between the witness R.W.25 andthe first petitioner in Election Petition No. 5 of 1969 (viz., P.W. 55 and recorded on tape, is admissible in evidence. We once again emphasize that this order relates only to theadmissibilityin evidence of theconversation recorded ‘on tape (1) A.I.R. [1928] P.C. 54.
(2) 1890 I.L.R.17 Cal.344.
and has not dealt with the weight to be attached tothat evidence. It must also be Pointed out that the question, whetherthe pamphlets, Exhibits P-18B and P-37A, havebeen circulated in the manner alleged by the petitioners andthe furtherquestion whether they amount to exercise of undue influence are also matters which have not been considered in this order. The above are all aspects which will be dealt with in the judgment, whiledisposing of the Election Petitions.