Evidence
Querist :
Anonymous
(Querist) 16 November 2011
This query is : Resolved
Sirs, I need exactly the reference/ decision copy of supreme court / or evidence act reference shows that " voice records evidences will be acceptable/admittable in all types of cases especially in O.S. cases (property related Cases)
I need your help plz
ajay sethi
(Expert) 16 November 2011
The Apex Court in Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC147 considered various aspects of the issue relating to admissibility of tape recoded conversation. This was a case relating to an offence under section 165-A of Indian Penal Code and at the instance of the Investigating Agency, the conversation between accused, who wanted to bribe, and complainant was tape recorded. The prosecution wanted to use this tape recorded conversation as evidence against accused and it was argued that the same is hit by section 162 CrPC as well as article 20(3) of the constitution. In this landmark decision, the court emphatically laid down in unequivocal terms that the process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act. The Apex Court after examining the entire issue in the light of various pronouncements laid down the following principles:
a) The contemporaneous dialogue, which was tape recorded, formed part of res-gestae and is relevant and admissible under section 8 of the Indian Evidence Act.
b) The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act.
c) Such a statement was not in fact a statement made to police during investigation and, therefore, cannot be held to be inadmissible under section 162 of the Criminal Procedure Code.
d) Such a recorded conversation though procured without the knowledge of the accused but the same is not elicited by duress, coercion or compulsion nor extracted in an oppressive manner or by force or against the wishes of the accused. Therefore the protection of the article 20(3) was not available.
e) One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Therefore, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.
ajay sethi
(Expert) 16 November 2011
in the case of Ram Singh v. Col. Ram Singh, AIR 1986 SC 3, following conditions were pointed out by the Apex Court for admissibility of tape recorded conversation:
a) the voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.
b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
c) Every possibility of tempering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
d) The statement must be relevant according to the rules of Evidence Act.
e) The recorded cassette must be carefully sealed and kept in safe or official custody.
f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.
ajay sethi
(Expert) 16 November 2011
Section 2(r) of Information Techonology ACT Act is relevant in this respect which defines information in electronic form as information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device. Under section 2 (t) ‘ electronic record ’ means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. Section 92 of this Act read with Schedule (2) amends the definition of ‘evidence’ as contained in section 3 of the Indian Evidence Act. The amended definition runs as under:
“Evidence:- ‘Evidence’ means and includes-
(1) all statements which the court permits or requires to be made before it by witness, in relation to matters of fact under inquiry;
such statement is called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
the law, as it prevails today, takes care of information stored on magnetic or electronic device and treats it as documentary evidence within the meaning of section 3 of the Indian Evidence Act.
Rajeev Kumar
(Expert) 16 November 2011
Mr.Ajay has elaborately replied the query
prabhakar singh
(Expert) 16 November 2011
I do not wish to add any thing more to answer given by Mr. Sethi.
Raj Kumar Makkad
(Expert) 16 November 2011
In India, the earliest case in which issue of admissibility of tape-recorded conversation came for consideration is Rupchand v. Mahabir Prasad, AIR 1956 Punjab 173. The court in this case though declined to treat tape-recorded conversation as writing within the meaning of section 3 (65) of the General Clauses Act but allowed the same to be used under section 155(3) of the Evidence Act as previous statement to shake the credit of witness. The Court held there is no rule of evidence, which prevents a party, who is endeavoring to shake the credit of a witness by use of former inconsistent statement, 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 was made in his presence.
In S. Pratap Singh v. State of Punjab, AIR 1964 SC 72 a five judges bench of Apex Court considered the issue and clearly propounded that tape recorded that tape recorded talks are admissible in evidence and simple fact that such type of evidence can be easily tampered which certainly could not be a ground to reject such evidence as inadmissible or refuse to consider it, because there are few documents and possibly no piece of evidence, which could not be tempered with. In this case the tape record of the conversation was admitted in evidence to corroborate the evidence of witnesses who had stated that such a conversation has taken place.
Raj Kumar Makkad
(Expert) 16 November 2011
Identification Of Voice:
As regards the identification of the taped voice, proper identification of such voice is a sine qua non for the use of such tape recording, therefore, the time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. [(See: Yusufalli Esmail Nagree) (Supra)]
Transcript:
The importance of having a transcript of the tape-recorded conversation cannot be under estimated because the same ensures that the recording was not tampered subsequently. In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, AIR 1975 SC 1788, the Apex Court considered the value and use of such transcripts and expressed the view that transcript could be used to show what the transcriber has found recorded there at the time of transcription and the evidence of the makers of the transcripts is certainly corroborative because it goes to confirm what the tape record contained. The Apex Court also made it clear that such transcripts can be used by a witness to refresh his memory under section 159 of the Evidence Act and their contents can be brought on record by direct oral evidence in the manner prescribed by section 160 of Evidence Act.
Nature:
Tape-recorded conversation is nothing but information stored on a magnetic media. In the case of Roopchand (Supra), though, Punjab High Court declined to treat tape recorded conversation as a writing within the meaning of section 3 (65) of the General Clauses Act but this view could not be survive for a long and the Apex Court in Ziyauddin Burhanuddin Bukhari (Supra) clearly laid down that the tape recorded speeches were "documents as defined by section 3 of the Evidence Act", which stood on no different footing than photographs.
After coming into force of the Information Technology Act, 2000, (w.e.f. 17.10.2000) the traditional concept of evidence stands totally reformed. Section 2(r) of this Act is relevant in this respect which defines information in electronic form as information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device. Under section 2 (t) ‘ electronic record ’ means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. Section 92 of this Act read with Schedule (2) amends the definition of ‘evidence’ as contained in section 3 of the Indian Evidence Act. The amended definition runs as under:
“Evidence:- ‘Evidence’ means and includes-
(1) all statements which the court permits or requires to be made before it by witness, in relation to matters of fact under inquiry;
such statement is called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
From the aforesaid provisions it becomes amply clear that the law, as it prevails today, takes care of information stored on magnetic or electronic device and treats it as documentary evidence within the meaning of section 3 of the Indian Evidence Act.
Utility/ Evidentiary Value:
The next question regarding evidence of the tape-recorded information, is about utility and evidentiary value. In this respect following points require consideration:
a) Whether such evidence is primary or secondary?
b) Whether such evidence is direct or hearsay?
c) Whether such evidence is corroborative or substantive?
The point whether such evidence is primary and direct was dealt with by the Apex Court in N. Sri Rama Reddy v. V.V. Giri, AIR 1971 SC 1162. the court held that like any document the tape record itself was primary and direct evidence admissible of what has been said and picked up by the receiver. This view was reiterated by the Apex Court in R.K. Malkani v. State of Maharashtra, AIR 1973 SC 157. in this case the court ordained that when a court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. Referring to the proposition of law as laid down in Rama Reddy’s case (Supra), a three judges bench of the Apex Court in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, AIR 1975 SC 1788 propounded that the use of tape recorded conversation was not confined to purpose of corroboration and contradiction only, but when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could, it could subject to the provisions of the Evidence Act, be used as substantive evidence. Giving an example, the Court pointed out that when it was disputed or in issue whether a person’s speech on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape recorded, assuming its authenticity to be duly established.
From the aforesaid it can well be gathered as a settled legal proposition that evidence of tape recorded conversation being primary and direct one it can well be used to establish what was said by a person at a particular occasion.
