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
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
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.
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
f) The voice of the speaker should be clearly audible and not lost or distorted
by other sounds or disturbance.
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)
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.
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
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.
The next question regarding evidence of the tape-recorded information, is about
utility and evidentiary value. In this respect following points require
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.
Under section 157 of the Indian Evidence Act, a witness may be corroborated by
his/her previous statement. Section 145 of the Act permits use of a previous
statement for contradiction of a witness during cross-examination. Again clause
(1) of section 146 provides that during cross examination, question may be put
to a witness to test his veracity. Section 153 generally deals with exclusion of
evidence to contradict answers to questions testing veracity. However, exception
(2) of it permits a witness being contradicted if he has denied any fact which
was put to him to impeach his impartiality. Section 155 (3) deals with
impeaching the credit of a witness liable to be contradicted.
The Apex Court in N.
Sri Rama Reddy (Supra) after considering the matter laid down that the
evidence of the tape recorded conversation/statement apart from being used for
corroboration is admissible for the purposes stated in Section 146 (1),
Exception (2) to section 153 and section 155 (3) of the Evidence Act.