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The Evolution of Admissibility of Tape Recorded Statements As Evidence

The Indian Evidence Act, 1872 has primarily dealt with only 2 types of evidence, i.e. Oral and documentary. In earlier times, it was never realised that with the advancement of technology, tape recorded conversations would eventually play a huge role in providing important evidence in courts.

Due to this, there was no provision in the Indian Evidence Act with regards to the admissibility, nature and evidentiary value of conversations or statements recorded in an electro-magnetic device. However over the years, the manner of committing crimes has changed drastically.

Many crimes are committed behind closed doors such as bribery etc. for which gathering evidence is no easy task. Hence other methods such as tape recordings, telephone tapping, sting operations etc. are being devised to gather first hand evidence of the offence. As time has passed, in the absence of any specific laws in this regard, the courts have been constantly confronted with the questions of the admissibility of evidence of such nature and have been looked upon to devise principles and guidelines for such questions considering their extreme importance in cases especially where other forms of direct evidence are scarce.

In India, the one of the earliest cases on the issue of admissibility of tape-recorded conversations came for consideration before the Punjab and Haryana High Court in the case of Rup Chand v. Mahabir Parshad[1]. The court in this case declined to treat tape-recorded conversation as writing within the meaning of section 3 (65) of the General Clauses Act[2] as it interpreted writing as representing or reproducing words in a visible form and it stated that the record which appears on a tape-recorder, could not fall within the ambit of this definition. Hence it refused to admit the evidence under section 145 of the Indian Evidence Act, 1872[3]. But it allowed the same to be used under section 155(3) of the Evidence Act[4] as a previous statement to shake the credit of witness.

The Court stated-
I am aware of no rule of evidence which prevents a Defendant who is endeavoring to shake the credit of a witness by proof 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.

Thus it can be seen that even that long ago, tape recorded conversations were not merely dismissed at the outset as being inadmissible. They were recognized and value was attached to them, although they on their own could not be treated as sufficient evidence to convict the accused.

It could be argued that a tape recorded conversation containing admission of or evidence of guilt against the accused should not be admitted as it hits Article 20(3) of the Constitution of India[5] which is a fundamental right. This problem was put to rest by the Supreme Court in the famous case of Yusufalli Esmail Nagree v. State of Maharashtra[6], wherein the police laid down a trap and a tape recorder was used to record a conversation between the accused who was offering a bribe and another person who was to execute a warrant against the accused. It was held by the Supreme Court that the accused could not claim protection under Article 20(3) on the ground of deception as he had not been compelled to be a witness against himself. He was free to talk or not to talk and that his conversation with the notice clerk was voluntary. The Apex court held that-

the contemporaneous dialogue between them formed part of the res gestae[7] and is relevant and admissible under Section 8 of the Indian Evidence Act[8]. The dialogue is proved by Shaikh. The tape record of the dialogue corroborates his testimony. The process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the 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[9].

Hence, it is clear that though the tape recorded conversation cannot be independent evidence, it can however be relevant and admissible evidence sufficient enough to launch prosecution provided that the tapes corroborate the conversation and depositions available otherwise.

In a landmark judgment of the Supreme Court, R.M. Malkani v. State of Maharashtra[10], immense value was attached to the admissibility of tape recorded statements.

The Hon’ble Apex Court went on to hold -
23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice: and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record.

A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible Under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible Under Section 7 of the Evidence Act....

The Apex Court in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta[11] clearly laid down that the tape recorded speeches if not tampered with, were the best form of evidence available with respect to the statements recorded thereto.

The Court held as follows -
21. The High Court also referred to V. Sri Rama Reddy and Ors. v. V. V. Giri for the proposition 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". In other words, its use was not confined to purposes of corroboration and contradiction only, but, when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could, subject to the provisions of the Evidence Act, be used as substantiate evidence. Thus, 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 record, assuming its authenticity to be duly established.

22. In our opinion the High Court had rightly relied upon the tape recorded reproductions of the appellant's speeches….

In all cases of tape recordings and video tapes, the evidence is real evidence when it is tendered to show what it was that was recorded. If a recording were obtained illegally or in breach of public policy it might be rejected on these grounds, but not because it is a recording. If the matter recorded is itself in issue, then the recording is capable of constituting real evidence of it.
In the landmark decision of the Hon’ble Apex Court in Ram Singh &Ors. Vs. Ram Singh[12], certain conditions were laid down with respect to the admissibility of a tape recorded statement.

The same are as follows :-
31. (1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.
3) Every possibility of tampering 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.
4) The statement must be relevant according to the rules of Evidence Act.
5) The recorded cassette must be carefully sealed and kept In safe or official custody.
6) The voice of the speaker should be. clearly audible and not lost or distorted by other sounds or disturbances.

As far as the dearth of laws with regards to tape recorded statements is concerned, the scenario has improved after the passing of the Information Technology Act in 2000 with the legislators realizing the importance of tape recorded conversations. Now 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-
electronic form, with reference to information, means any 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.

The definition of ‘evidence’ as contained in section 3 of the Indian Evidence Act, 1872 has also been amended with effect from 17.10.2000. The amended definition runs as under:

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 statements are 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, 1872.

Section 65B of the Indian Evidence Act, 1872 has also been inserted by the amendment of 2000 which deals specifically with the admissibility of electronic records. It states that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions mentioned in the section are satisfied. Hence again it can be seen that tape recorded statements have been given legal recognition with the passage of time.

The Supreme Court, in the case of State (N.C.T. Of Delhi) v. Navjot Sandhu[13], on the questionof admissibility of tape recorded conversation which was illegally collected or obtained, while relying on the judgment in R.M. Malkani Vs. State of Maharashtra (supra.), held that if evidence was admissible it matters not how it was obtained. It was further held that there is of course always a word of caution, which is that the Judge has discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused.

The Hon’ble Apex Court, in the recent case of Shamsher Singh Vs. State of Haryana, has gone on to hold that even a compact disc, shall be a document as per the definition in the Indian Evidence Act, 1872.
Even in recent times, the Hon’ble Apex Court has been inclined to admit tape recorded statementsas evidence, especially keeping in view the value that they bring, in order to do proper justice. In the recent judgment passed by the Hon’ble Apex Court in the matter titled Shafhi Mohammad Vs. State of Himachal Pradesh [14], the Court has taken a lenient view when it comes to compliance of the provisions of Section 65B of the Indian Evidence Act, i.e. to produce a valid certificate with respect to the authenticity of the electronic record.

It has been held that-
14. The applicability of procedural requirement Under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate Under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate Under Section 65B(h) is not always mandatory.

15. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate Under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.

In today’s world, with the growth of technology, tape-recorded conversations as pieces of evidence have emerged as one of the positive and effective changes that have taken place. In order to cope with the surge in crimes being committed today, it is necessary to remain abreast with the latest technologies available and all efforts need to be made to admit evidence which is relevant and which may have been obtained by the use of such technology. There is no ambiguity as regards the fact that there are greater chances of tampering with such forms of evidence. However, their importance and relevance cannot be overlooked. It is evident that the judiciary has made immense efforts in order to devise proper guidelines with respect to admissibility of tape-recordings as well as other electronic records, as have been discussed herein above.

[1] AIR 1956 Punjab 173.
[2] Section 3(65) reads: Expressions referring to" writing" shall be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form.
[3] Section 145 reads:A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
[4] Section 155(3) reads: The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:—
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
[5] Article 20(3) reads: No person accused of the offence shall be compelled to be a witness against himself.
[6] (1968) AIR SC 147.
[7] Res Gestae in English means Things Said And Done in the Course of the Transaction. See Dr.AvtarSingh, Principles of the Law of Evidence,17thEdn.,Central Law Publications, 2009, p.42.
[8] Section 8 reads:Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
[9] Section 7 reads:Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.
[10] (1973) 1 SCC 471.
[11] (1976) 2 SCC 17.
[12] (1985) SCR Suppl. (2) 399.
[13] (2005) 11 SCC 600.
[14] Arising out of Special Leave Petition (Crl.) No. 2302 of 2017, SLP (Crl.) No. 9431/2011 and SLP (Crl.) Nos. 9631-9634/2012

Written by: Rahul Gupta, Advocate (D-450/89) - Delhi High Court, New Delhi.

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