{"id":4226,"date":"2017-01-18T22:02:16","date_gmt":"2017-01-18T16:32:16","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=4226"},"modified":"2017-01-18T22:02:16","modified_gmt":"2017-01-18T16:32:16","slug":"1162-1971","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/1162-1971\/","title":{"rendered":"TAPE RECORDED CONVERSIONS ARE VALID EVIDENCE"},"content":{"rendered":"

Supreme Court of India<\/strong><\/p>\n

Shri N. Sri Rama Reddy Etc vs Shri V. V. Giri on 27 April, 1970
\nEquivalent citations: 1971 AIR 1162, 1971 SCR (1) 399
\nAuthor: C Vaidyialingam
\nBench: Sikri, S.M., Shelat, J.M., Bhargava, Vishishtha, Mitter, G.K., Vaidyialingam, C.A.<\/p>\n

PETITIONER:SHRI N. SRI RAMA REDDY ETC.<\/p>\n

\tVs.<\/p>\n

RESPONDENT:SHRI V. V. GIRI<\/p>\n

DATE OF JUDGMENT:27\/04\/1970<\/p>\n

BENCH:VAIDYIALINGAM, C.A.
\nSIKRI, S.M.
\nSHELAT, J.M.
\nBHARGAVA, VISHISHTHA
\nMITTER, G.K.<\/p>\n

CITATION:
\n 1971 AIR 1162\t\t 1971 SCR (1) 399
\n 1970 SCC (2) 340
\n CITATOR INFO :
\n E\t 1973 SC 157\t (21,22)
\n R\t 1975 SC1788\t (21)
\n RF\t 1986 SC 3\t (29,146,174,218)<\/p>\n

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.<\/p>\n

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.<\/p>\n

On the question of the admissibility of the evidence,<\/p>\n

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.<\/p>\n

(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]<\/p>\n

JUDGMENT:
\nORIGINAL JURISDICTION\tElection Petitions Nos. 4 and 5 of 1969.<\/p>\n

Election Petitions in Admissibility in Evidence of Tape- Recorded Conversation.<\/p>\n

K. C. Sharma, K. I. Rathee, M. S. Gupta, C. L. Lakhanpal and S.\tK. Dhingra, for the petitioners (in E.P. No. 4 of 1969).<\/p>\n

S. C.\tMalik,\tM. S.\tGupta and K. L. Rathee, for\tthe petitioners (in E.P. No. 5 of 1969).<\/p>\n

C. K. Daphtary, D. Narasaraju, S. Mohan Kumaramangalam, S. T. Desai, S. K. Dholakia, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the\trespondent (in both\tthe petitions).<\/p>\n

Jagadish Swarup, Solicitor-General, L. M. Singhvi and K. P. K. Nayer, for the AttorneY-General, Election Commission\tand Returning Officer, Presidential Election. The Order of the Court was delivered by Vaidialingam, J. On April 1, 1970 Shri Jagat Narain (R.W.<\/p>\n

25) was being\tcross-examined\tby the counsel for\tthe 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 to\thim, 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 the\twitness. Objection was raised by Mr. C. K. Daphtary, learned counsel for\tthe respondent, that the tape recorded conversation was\tnot admissible in evidence.\tIn view of this objection, counsel on both side were heard regarding the admissibility of\tthe tape recorded\tconversation, on April 2, 1970\tand, after hearing\targuments on both sides, we\tthen expressed\tthe opinion\tthat the tape recorded conversation could\tbe received in evidence and that we would give\tour reasons later.\tThe further cross-examination and reexamination of the witness proceeded\tin respect of\tthe tape recorded conversation which was played in Court in the\tpresence of the witness.<\/p>\n

We now\tproceed to state our reasons for holding that\tthe tape recorded conversation could be admitted in evidence. But we\tmake it clear that we have dealt with only\tthe 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. Before\twe deal with the question of admissibility of\tthe tape recorded conversation, it is necessary to state that in Election Petition No. 5 of 1969 the, petitioners allege that offences of undue influence\tat the\telection had\tbeen committed by the returned candidate and by his supporters with the connivance of the returned candidate.\tThe material facts relating\tto the strict allegations have also\tbeen given in the\tpetition in paragraph 13 of the election petition. It\thas been alleged that on August 9, 1969 an unsigned pamphlet in\tcyclostyled form and also printed pamphlet without bearing the name of its publisher or printer\t(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. It\thas been further alleged that the offence of undue influence was freely\tcommitted at the election by the returned candidate and the persons mentioned in the election petition and by their supporters and workers with the\tconnivance of\tthe 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 Narain\tand certain other persons named in the petition\twho are described\tas supporters and workers of the returned candidate in general with the consent and connivance of\tthe returned candidate published, by free distribution, pamph- lets in Hindi and English in cyclostyled form as well as in printed\tform in which very serious allegations were\tmade against\tShri Reddy which amounted to undue influence\tupon the persons referred to in the election petition within\tthe meaning of s. 171 (c) of the Indian Penal Code.\tThere is a further\tallegation that these pamphlets were\tdistributed from August 9, 1969\tto August 16, 1969 among all\tthe electors of the Electoral College for the\tPresidential 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.<\/p>\n

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 9\tand August 16, 1969 had already been mentioned in the\telection petition. lie has further stated in the said particulars that\tShri Jagat Narain was one of the persons who distributed\tthe pamphlets in the Central Hall of Parliament on\tAugust\t11, 1969 to the Members of Parliament whose names have also been given.<\/p>\n

Issues\thave been framed whether the\trespondent, or\tany person\twith\this connivance, printed, published\tand 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, on\tthe 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 the\tside of the petitioners and he has further affirmed that he\thas never distributed the\tpamphlets in the Central Hall of Parliament and that he has not seen the pamphlets except in Court.\tIn cross-examination, the witness was\tasked about the telephone call that he had made to Abdul Ghani Dar about 6 or 7 days before the filing of the\telection 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 would\tfollow\tfrom such action.\tThough 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 at\tthat 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 on\tthe ground\tthat the answers given by the witness in Court\twere quite contrary to the nature of the conversation that he had with Abdul Ghani Dar. Objection was raised to receiving the same as evidence.<\/p>\n

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)\tThe tape-recorded conversation cannot be admitted\tin 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 Court\tmust be satisfied that the previous statement is relevant to\tthe matter\tin issue and the tape recorded conversation, in\this case, has no relevance to the matters which are in issue in these proceedings.<\/p>\n

Mr. Daphtary, learned counsel, did not dispute the correct- ness of two decisions of this Court to which reference\twill be, made later, wherein the taped records of\tconversation had been admitted in evidence.\tBut, 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- counsel\tappearing 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.\tSharma,, issues have\tbeen framed whether undue influence has\tbeen exercised by the respondent or by\tany other\tperson\twith his connivance.\tAccording to\tthe petitioners undue influence has been’. exercised by\tthe publication and distribution\tof the\tpamphlets, making scurrilous attack about the\tpersonal character of\tSri Sanjiva\tReddy.\tSpecific allegations have been made in\tthe election petition that R.W.\t25 is\tone of those\twho distributed the pamphlets in the Central Hall of Parliament with the connivance of the, respondent.\tThe witness denied this allegation in chief-examination\tand when certain suggestions, that the witness attempted to dissuade\tShri Abdul Ghani Dar from filing his election petition on\tthe ground\tthat serious consequences would follow, were put to him in cross-examination, witness denied them and, ‘in\tthat context\tthe tape-recorded conversation between the witness and Shri Abdul Ghani Dar assumes importance. Relying\tupon that tape recorded conversation, counsel urged that\this client\tis entitled to test the veracity of the witness\tand to impeach the credit of the witness and satisfy the Court that the evidence given by\tthe witness before us is inconsistent or contrary to what he had stated on an earlier occasion.<\/p>\n

In this connection counsel relied upon ss. 146, Exception 2 to s.\t153 and cl. (3) of s. 155 of\tthe Evidence\tAct. 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 testing\tveracity, but Exception 2 states that if a witness is asked any question tending to impeach As impartiality and answers\tit by\tdenying the facts suggested,,\the 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 witness\tmay be impeached is dealt with in cl. (3) and that is by proof of former-<\/p>\n

statement in consistent with any part of his evidence which is liable to be contradicted. Mr. Daphtary pointed out that S. 146\tmust be read with S. 153. We\tcannot\taccept\tthis contention in its entirety. It may be that cl. (3) of s. 146 may have\tto be read along with the main\ts. 153\tbut clause (1) of s. 146 and exception (2) to s. 153 deal\twith different aspects. Under s. 146(1) questions may be put to a witness in cross-examination to test his veracity\tand, under Exception 2 to s. 153 a witness may be\tcontradicted when he denies any\tquestion tending to impeach\this impartiality. :The object of the election petitioner to adduce\tthe tape-recorded conversation as evidence is to impeach the testimony of the witness that he has never\tseen the pamphlet and that he has never attempted to induce\tthe election petitioner not to file the election\tpetition on threat\tof serious consequences, and to establish that\tthe evidence given in Court is quite contrary to the statements made by him in the conversation that he had\twith Abdul Ghani. Dar and which has been recorded on tape. We will now refer to the case law on the subject. In Hopes ,and Another\tv. H.\tM. 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 to\tthe conversation as it was transmitted through the\tloudspeaker. Objections were raised to the admissibility of the\tsaid evidence. The learned trial Judge over-ruled the ,objection as follows :<\/p>\n

“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 to\twhat he observed being turned down as\tinadmissible because he had used a telescope, any more than the evidence of what an ordinary person\tsees with his eyes becomes incompetent because he was wearing spectacles.\tOf course, comments and criticisms can be made, and no doubt\twill be made, on\tthe audibility or\tthe intelligibility,\tor\tperhaps\tthe interpretation, of the results of the use of a scientific method; but\tthat ‘is another matter, and that is a matter of value, not of competency, The\tsame can be said of visual observation by a witness who says he\tsees something; his evidence\tcan be criticised because of his sight or because of the sort of glasses he is wearing, and so on, but\tall these matters are matters of value and not of competency.
\n(1) (1960) Scots Law Times 264.<\/p>\n

Accordingly, the learned Judge allowed the police officer to give evidence\tas to what he heard on the tape recorder, which was played before the Jury.<\/p>\n

On appeal to the High Court of Justiciary, it is seen\tthat no objection appears to have been taken to the competency of the evidence\tfurnished by the tape-recorder but\tthe admissibility of the evidence of the police officer based upon As hearing of the tape-recorded conversation\twas objected to.\tThis objection was over-ruled by the\tHigh Court of Judiciary stating that, it is competent for\tthe police\tofficer\tto 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 of\tthe quality of his evidence and not about the competency of\tthe evidence of what he has heard.\tThe Court further observed at p. 267 “The Inspector’s evidence of the\tconversation was as much primary evidence as the evidence from the replaying of the tape recorder.\tEach received it at the same time,\tt he one recording\tit in the human memory the other upon a piece of tape.”<\/p>\n

From the above decision it is apparent that the tape itself is primary and direct evidence admissible as to what\thas been said and picked up by the recorder.<\/p>\n

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 on\tthe tape.\tBut the tape recording itself was not introduced in evidence nor was there any production of the record by consent\tbefore the Jury. They referred to the decision of the High Court of Judiciary in Hopes Case(-) and held\tthat according to\tthe said decision the tape recorded conversation was admissible as direct evidence.\tThough\tthe discussion in\tthe judgment shows that a tape-recorded conversation is admissible in evidence, ultimately the Court left open the question stating :<\/p>\n

“The court has\tnot debated, and is\tnot deciding,\tany broad and general\tquestion of principle\twhether evidentiary material obtained by the use of a tape recorder without the concurrence of a human being listening to the same\tsounds\tis admissible\tor is\tnot admissible in evidence in a criminal trial.”
\n(1) [1962] 3 All. E.R. 298.\t(2) [1960] Scots\tLaw Times 264 L12Sup.CI\/70-12 But it\tis significant to note that the Court\tof Criminal Appeal\trejected the contention of the counsel for\tthe 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.<\/p>\n

The question again directly arose in R. v. Maqsud Ali(1). In that case a conversation which took, place\tin Punjabi dialect\tbetween two persons and which had been recorded on the tape was played before the jury and was\tadmitted in evidence by the trial Judge. Objection was taken before the Court of Criminal Appeal regarding the admissibility in evidence of the tape recorded conversation\tbetween\tthe accused. Therefore the point that specifically arose before the-Court of Appeal was ‘Is a tape\trecording as\tsuch admissible in\tevidence, as a matter of law’?’ After referring to the observations in Mills’ Case 2 )\tthe appellate Court noted\tthat the question regarding\tthe admissibility of a tape record was not actually decided in that case. The decision of the High Court of Justiciary in Hopes’\tCase(:”) was referred to and it was noted that\tthe evidence of the police officer who listened to the\ttape recorder was held to be admissible. The Court said, at p. 469 :<\/p>\n

“We think that the time has come when\tthis court should state its views of the law on a matter which is likely\tto be\tincreasingly raised as time passes. ‘For many years\tnow photographs have been admissible in evidence on proof that they are relevant to the issues involved\tin the case and that the prints\tare taken from negatives that are untouched.\tThe prints as seen represent situations that\thave been reproduced\tby means of mechanical\tand chemical\tdevices. Evidence of\tthings\tseen through telescopes or\tbinoculars which otherwise could not be picked up by the naked eye have been admitted, and now there\tare devices for picking up, transmitting,\tand recording, conversations. We can see\tno difference in principle between a\ttape recording and a photograph. In saying this we must not be taken as\tsaying\tthat\tsuch recordings are admissible whatever\tthe circumstances, but it does appear to\tthis court wrong to deny to the law\tof evidence advantages to be gained by new techniques\tand new devices, provided the accuracy of\tthe recording\tcan be proved and\tthe voices recorded\tproperly identified; provided\talso that the evidence is relevant and otherwise admissible, we are satisfied that a\ttape recording\tis admissible in evidence.\tSuch evidence (1) [1965] 2 All.E.R. 464.
\n(2) [1962] All E.R. 298.
\n(3) [1960) Scots Law Times 264.
\nshould always be regarded with some caution and assessed in the light of all\tthe circumstances of\teach case There can be no question of laying down any exhaustive set of rules by\twhich\tthe admissibility of\tsuch evidence should be judged.”
\nIn consequence, the Court held that the tape-recorded conversation was admissible in evidence, subject to\tthe limitations mentioned in the above extract. It will therefore be seen that though the question of admissibility of a tape-recorded conversation had been\tleft open in Case(1), the same was specifically considered\tand decided affirmatively in Maqsud Ali’s Case (2). Before\twe deal with the decisions of\tthis Court bearing on this point, it is necessary to advert to two decisions, one of\tPunjab High Court _and the other, of the Calcutta High Court. In Rup\tChand v. Mahabir Parshad(3)\tthe 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 note\tcontaining certain endorsement had been destroyed and had been\treplaced by another\tpromissory note bearing the same\tdate.\tThe defendant attempted to substantiate this plea by the\toral testimony of a broker but the latter declined\tto support him. The defendant requested the Court to permit him to confront the broker witness with the conversation which\thad 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 the\tevidence by tape, recorder, but the trial Court over-ruled the objection.\tIn 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 him\tbefore\tthe Court,\tthere can be no doubt\tthat the defendant could establish that a previous statement which was contradictory to the\tevidence given before the Court was made by\tthe witness to him.\tDealing 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 Court\theld that such a tape-recorded statement\twas admissible in evidence, and observed as follows :<\/p>\n

“I am aware of no rule\tof evidence which prevents\ta defendant who is endeavouring to shake the credit of (1) [1962] 3 All E.R. 298.
\n(3) A.I.R. 1956 Punj. 173.
\n(2)[1965] 2 All E. R. 464.
\n4 0 8 witness\tby proof of former\tinconsistent 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 statement\twas made in his presence.”
\nThis decision\tlays down two propositions :\t(i) that a taperecorded conversation is admissible in evidence and that<\/p>\n

(ii) if it contains a previous statement made by a witness, it can be used to contradict the evidence given before\tthe Court.<\/p>\n

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 the\ttape to contradict the plaintiff’s evidence given before\tthe Court and held\tthat,\tthe tape-recorded conversation was admissible in evidence and the previous statement recorded therein could be used to contradict\tthe evidence given\tbefore the court. After referring to\tRup Chand’s Case (2) the Court observed at p. 192 “If the plaintiff, while he is in the witness box, makes a statement which is\tat variance with a statement previously made by him,\tthe plaintiff may be asked whether he\tm ade such previous\tstatement and if he denies having made the\tprevious statement, such previous statement\tmay be proved\tby the defendant. There, as in this case, it is alleged that the previous statements of\tthe plaintiff\twere recorded in a tape-recorder, those statements may be admitted in evidence, if it is proved that they were made by the plaintiff and\tthat the instrument\taccurately recorded those statements. The fact that the statements were recorded in a tap-,-recorder and the recording was made\tbehind\tthe back and\twithout\tthe knowledge\tof the plaintiff is by itself no objection\tto the admissibility of\tthe evidence.”<\/p>\n

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).<\/p>\n

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 deposes\tthat the other speaker and he carried on the conversation\tand even of the state-<\/p>\n

(1) 67 S.W.N. 191.<\/p>\n

(3) [1964] 4 S.C.R. 7533 (2) A.I.R. 1956 Punj. 173.<\/p>\n

(4) [1967] 3 S.C.R. 720.<\/p>\n

ment of a person who may depose that he overheard\tthe 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 in\ta Particular case. Though there was a difference of opinion in the majority and minority judgments regarding certain other aspects\twhich\tarose\tfor consideration,\tso far\tas the admissibility of it tape- recorded conversation in evidence, all the Judges appear to have been unanimous in the view that it was admissible.\tBut it must be noted that in the majority judgment it is stated that it was not contended on behalf of the State that\tthe tape-recording\twere inadmissible. Similarly, in\tthe 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 is\tnot admissible in evidence for any purpose it was not necessary to pursue the matter further.<\/p>\n

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 from\tthe 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 :<\/p>\n

“The contemporaneous dialogue between\tthem formed part of the res gestae and is relevant and admissible under s. 8 of\tthe Indian Evidence\tAct. The dialogue is proved by Shaikh.\tThe tape record, of the dialogue corroborates his testimony. The\tprocess of tape-recording offers an accurate method of storing and later reproducing sounds.\tThe imprint on the magnetic tape is\tthe direct effect of the\trelevant sounds. Like a photograph of\ta relevant incident, a contemporaneous tape-record of\ta relevant conversation is\ta relevant fact and\tis admissible under s. 7 of the Indian Evidence Act.”
\nReference was made , with approval to the decision of\tthe Punjab\tand Calcutta High Courts in Rup Chand’s Case(2)\tand Manindra Nath’s Case(3) and also to the earlier decision of this Court in Pratap Singh’s\tCase ( 4 ) where a tape- recorded conversation had been admitted in evidence.\tThe decision in Maqsud Ali’s Case(5) was\talso quoted\twith approval.<\/p>\n

(1) [1967] 3 S.C.R. 720.<\/p>\n

(2) A.I.R. 1956 Punj. 173.<\/p>\n

(3) 67 C.W.N. 191 (4) [1964] 4 S.C.R. 733.<\/p>\n

(5) [1962] 3 All. E R. 298.<\/p>\n

In particular, it will be noted that this Court, in the said decision, approved of the decision of the Punjab High Court in Rup\tChand’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) of\tthe Evidence Act.<\/p>\n

Having due regard to the decisions referred to above, it is clear that a\tprevious statement, made by a\tperson\tand recorded on tape, can be used not only to corroborate\tthe evidence given\tby the witness in Court but also\tto contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach\this impartiality. Apart from being used for corroboration,\tthe evidence is admissible in respect of the other three last- mentioned matters, under s. 146 ( 1), Exception 2 to s.\t153 and s.\t153(3) of the Evidence Act. Therefore\tit is\tnot 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 contradicting\tthe evidence given before the Court. If a\tprevious statement made by a person can be used to corroborate his evidence given before the Court, on principle, we do not see\tany reason\twhy such previous statement\tcannot\tbe used to contradict and\talso for the other purposes\treferred to above.\tIn particular the fact that the decisions of\tthe Punjab\tand Calcutta High Courts Rup Chand’s\tCase(1) and Manindra Nath’s Case(2) where the previous statements\thave 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 used\tto contradict\tthe evidence given\tbefore the Court cannot be accepted.\tAs pointed\tout already, Mr. Daphtary has not challenged\tthe correctness of\tthe decision\tin Yusuffali’s\tCase\t(3). Therefore the first ground of objection raised by\tMr. Daphtary will have to be overruled.<\/p>\n

Coming\tto the second contention of Mr. Daphtary, which\thas been set out earlier, in our opinion that question becomes really\taccademic when once we have held that the previous statement can be used to contradict\tthe evidence given ‘before\tthe Court under. 155 (3)for the\tpurpose\tof 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’.\tIn support of this contention,\tthe counsel\treferred us to the decision of the Calcutta\tHigh Court in Khadijah Khanum v. Abdool Kurreem Sheraji(4)\tand 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.<\/p>\n

(3) [1967] 3 S.C.R. 720.<\/p>\n

(4) 1890 I.L.R. 17 Cal. 344.<\/p>\n

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 :<\/p>\n

“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”.
\nIn our opinion, the proposition has been too broadly\tlaid down by the learned Judge. A reference to\tthe various clauses\tin s.\t155 in our opinion does not\twarrant\tthe interpretation\tplaced\tby the Calcutta High\tCourt.\tFor instance, under cl. (1), the evidence that is\tcontemplated and which could be given will certainly not\tbe 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 of\tthe witness\tregarding the matters about which he speaks cannot be acted upon. Even otherwise, in this case, we\thave already referred to the relevant issue bearing on the matter and we have pointed out that according to the\tcounsel\tfor the petitioners their attempt is, to impeach the credit of R.W. 25, by establishing, if possible, that his evidence cannot\tbe relied on in view of the fact that he is making contradictory statements. On that basis, even applying\tthe test laid down by the Calcutta High Court, it\twill follow that the previous statement, recorded on tape, must be considered to\tbe relevant to the issue before\tthe Court. Counsel\talso drew our attention to the decision of\tthe 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 that\tthe provisions of\tany statute must be properly and strictly construed. This decision, hence, has no bearing on\tthe matter before us. It is also significant that the Judicial Committee, when dealing with s. 155 of the Evidence\tAct, makes no reference to the decision of\tthe Calcutta\tHigh Court in Khadijah Khanum’s Case (2).<\/p>\n

It follows that the second ground of objection, urged by, Mr. Daphtary,\tto the\tadmissibility\tof this piece\tof evidence, has\talso to be overruled.<\/p>\n

In the result we hold that the conversation, which is stated to have taken place between the witness R.W.\t25 and\tthe 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 the\tadmissibility\tin evidence of the\tconversation recorded ‘on tape (1) A.I.R. [1928] P.C. 54.<\/p>\n

(2) 1890 I.L.R.17 Cal.344.<\/p>\n

and has not dealt with the weight to be attached to\tthat evidence. It must also be Pointed out that the question, whether\tthe pamphlets, Exhibits P-18B and P-37A, have\tbeen circulated in the manner alleged by the petitioners and\tthe further\tquestion 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, while\tdisposing of the Election Petitions.<\/p>\n","protected":false},"excerpt":{"rendered":"

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…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[45866,45863,43772,45873,45868,45867,45880,45885,43764,45871,45870,45875,15494,45864,45872,3034,45883,45879,45882,45886,45861,45859,45877,45878,45876,45860,45874,45888,45865,45858,45862,45869,45887,45884,45890,45889,45881],"class_list":["post-4226","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-45866","tag-abdul-ghani","tag-admissibility-of-evidence","tag-admissibility-of-tape-recorded-conversation","tag-admissibility-of-tape-recording-as-evidence","tag-admissibility-of-tapes","tag-bhargava","tag-c-a","tag-connived","tag-contradiction-in-evidence-is-no-evidence","tag-contradiction-in-evidences","tag-corroborative-evidence","tag-cross-examination","tag-daphtary","tag-distributing-pamphlets","tag-evidence-act","tag-g-k","tag-j-m","tag-mitter","tag-n-sri-rama-reddy","tag-previous-statement","tag-recording-conversation","tag-s-m","tag-shelat","tag-sikri","tag-tape-recorded-conversation","tag-tape-recorded-conversation-not-admissible-as-an-evidence","tag-tape-recorded-conversions","tag-tape-recorded-evidence","tag-tape-recorder","tag-taped-conversation","tag-undue-influence","tag-v-v-giri","tag-vaidyialingam","tag-valid-evidence","tag-vice-presidential-election-act","tag-vishishtha"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/4226","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=4226"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/4226\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=4226"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=4226"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=4226"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}