Should i give the recordings to the lawyers?

Tejal (house wife) 11 May 2012

My both posts are diffeternt so pls dont combine it.

Shantanu Wavhal (Worker) 11 May 2012

Give secondary evidences (cd / pen drive).

primary evidence = memory card on which the conversation is recorded.

Preserve well the primary evidences.

if the respondent husband sats that the voice recorded is not his, then u will need to give primary evidences for forensic testing.

indian evidence act - sec. 65 a & b (pl. check sec. nos. - i m not sure)

Shantanu Wavhal (Worker) 11 May 2012

amendment :

primary evidence = memory card / media on which the conversation is recorded.

Avnish Kaur (Consultant) 12 May 2012

GIVE COPY ONLY , KEEP originals with you in safe custody and if chip then in a magnetically shielded box.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 12 May 2012

DEAR tejal

You need to belief on your lawyer, the lawyer is your representative before the court.

feel free to call

Tejal (house wife) 12 May 2012

Thanks to all.

I recorded conversasion on my cellphone both telephonic & personal meetings. & i transfered them to my pc & Mamory card of other phone. As i dont have enough memory & memory card facility in my phone in which i have a recording functions. ..

Is it Valid as i have transfered all them in other devices?

Shantanu Wavhal (Worker) 12 May 2012

u will to file an affidavit -

IN THE HON’BLE COURT OF CIVIL COURT, SENIOR DEVISION

Petitioner

---

Respondents

---

HINDU MARRIAGE PETITION No. -------- / ---------

Next Date of Hearing: --- / --- / ---

Affidavit

I, --- S/o ---------- R/o --------------------------, Age - --------- years, Occupation - ---------- do hereby solemnly affirm and declare as under:

1. That I have created the CD in pursuance to the section 65B of Indian Evidence Act of the contents of the ------------- brand handset bearing IMEI no.: ----------------, which lawfully belongs to myself by the following process:

a. The said contents were downloaded in the desktop computer on --- / --- / -----.

b. A backup of the said contents were created on the PC bearing no. _____ and having Microsoft Windows 7 Operating System.

c. The said backup was then copied on the CD by using the DVD Writer which is attached to the said PC.

2. That during the process, it is not possible to tamper with the contents of my handset.

3. That the original handset can be produced for inspection at any time in pursuance with the court order for any kind of checking/ forensic testing etc.

4. That a true copy of the transcriptts are attached herewith and marked Exhibit - XX (Only for voice contents)

DEPONENT

VERIFICATION

Verified at ----------- on this -------- day of ----------, -------- that the contents of the abovesaid affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.

DEPONENT

Shantanu Wavhal (Worker) 12 May 2012

further info :

The phenomenon of tendering tape recorded conversation before law courts as evidence, particularly in cases arising under the Prevention of Corruption Act, where such conversation is recorded by sending the complainant with a recording device to the person demanding or offering bribe has almost become a common practice now. In civil cases also parties may rely upon tape records of relevant conversation to support their version. In such cases the court has to face various questions regarding admissibility, nature and evidentiary value of such a tape- recorded conversation. The Indian Evidence Act, prior to its being amended by the Information Technology Act, 2000, mainly dealt with evidence, which was in oral or documentary form. Nothing was there to point out about the admissibility, nature and evidentiary value of a conversation or statement recorded in an electro-magnetic device. Being confronted with the question of this nature and called upon to decide the same, the law courts in India as well as in England devised and developed principles so that such evidence, mat be received in law courts and acted upon.

The relationship between law and technology has not always been an easy one. However, the law has always yielded in favour of technology whenever it was found necessary. The concern of the law courts regarding utility and admissibility of tape recorded conversation, from time to time found its manifestation in various pronouncement. In Hopes v. H.M. Advocate, 1960 Scots Law Times 264, the court while dealing with the question of admissibility of tape recorded conversation observed as under:

New techniques and new devises are the order of the day. I can’t conceive, for example, of the evidence of a ship’s captain as to what he observed being turned down as inadmissible because he had used a telescope, any more than the evidence of what an ordinary person sees with his eyes becomes incompetent because he was wearing spectacles. Of course, comments and criticism can be made, and no doubt will be made, on the audibility or the intelligibility, or perhaps the interpretation, of the results of the use of a scientific method; but that is another matter and that is a matter and that is a matter of value, not of competency.

An authoritative and categorical exposition this point is found in Rex v. Maqsud, 1965(2) All ER,461 wherein the Court of Criminal Appeal observed that the time has come when this court should state its views of the law matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues in involved in the case and that the print as seen represents situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting and recording conversations. In principle no difference can be made between a tape recording and a photograph. The court was of the view that it would wrong to deny to the law of evidence advantages to be gained by new techniques and devises.

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.

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.

Conditions Of Admissibility:
The tape recorded conversation can be erased with ease by subsequent recording and insertion could be superimposed. However, this factor would have a bearing on the weight to be attached to the evidence and not on its admissibility. Ultimately, if in a particular case, there is a well grounded suspicion not even say proof, that the tape recording has been tampered with that would be a good ground for the court to discount wholly its evidentiary value as in Pratap Singh v. State of Punjab, AIR 1964 SC 72. 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.

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)]

Transcriptt:
The importance of having a transcriptt 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 transcriptts and expressed the view that transcriptt could be used to show what the transcriber has found recorded there at the time of transcripttion and the evidence of the makers of the transcriptts is certainly corroborative because it goes to confirm what the tape record contained. The Apex Court also made it clear that such transcriptts 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:

Yes,You can use under section 65(B) as a secondary evidence and in this you have no need to prove its original or not. After section 65, section 65A and 65B have been added laying down the provisions about Admissibility of electronic records. Moreover, the concept of electronic evidence fails to identify the kinds of documentary evidence namely the primary and the secondary evidence as every electronic record is an original as well as in duplicate.

However, the provisions of section 65A and 65B(THE INDIAN EVIDENCE ACT, 1872) help to overcome this complex situation.

Conditions Of Admissibility:

In Pratap Singh v. State of Punjab, AIR 1964 SC 72. 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.

the case of R.M. Malkani vs. State of Maharashtra, AIR 1973 SC 157. In paragraph 14 of the judgment, the tape is held to be primary and direct evidence of what has been said and recorded. However, the CD sought to be relied upon by the 12 NM-8

Plaintiff is a copy obtained by the mechanical/electronic process of having the original tape recorded conversation uploaded on a computer from the original electronic record and copied on the CD. Such copy is, therefore, secondary evidence under Section 63 of the Evidence Act and, therefore, can be used only upon production of the original record of such taped conversation under Section 65B of the Evidence Act.

15.Further in the case of R.M. Malkani (supra), tape recorded conversation is held admissible if it is relevant, if the voice is identified and the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape recorded conversation

Tejal (house wife) 12 May 2012

Thanks Mr. Amit for spending time to giving the informations . they are really helpfull to me and others.

Shantanu Wavhal (Worker) 12 May 2012

Never mention.

I have collected this info. from LCI itself.

Tejal (house wife) 13 May 2012

Thanks to all.

One more query i have. I am using the Cell no. which is on my husbands name. He gave me that no after our angagement for cheaper calls. So from almost 2 years i m using that no.

Now my husband bloks my no. by saying that sim has been lost at the customer care center. , & all the time i apply for unbloke the no. So my cell no. is still working.

I have recorded all the conversations on the same no. If my husband permanantly blok my no. Does my recordings consider valid.

Shantanu Wavhal (Worker) 13 May 2012

the conversation gets recorded on memory card.

voices can be recognized.

u can get detailed monthly call statement (time of call, incoming + outgoing no., conversation duration etc.)

the recordings will be treated valid.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 13 May 2012

ONCE IT IS TAMPERED IT HAS NO EVIDENCE VALUE.

Tempring means sent to computer from memory card.

Shantanu Wavhal (Worker) 13 May 2012

i strongly disagree with JSDN.

evenif a file is sent to computer, it remains intact on the original media.

the file sent to computer & copied to CD is treated as secondary evidence.

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