“Extraordinary claims require extraordinary evidence.”
Evidence means any of the material items or assertions of fact that may be submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it. In simple words one or more reasons for believing that something is or is not true. Under section 3 of the Act, “Evidence” means and includes-(1) all statements which the Court permits or requires to be made before it by witnesses, 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. The Evidence Act, 1872 has primarily dealt with only 2 types of evidence, i.e., Oral and documentary. All the statements made by witnesses are classified as ‘oral evidence’ and all the documents that are produced before the Court are ‘documentary evidence’.
Documentary evidence means producing documents before court of law and inspection is done by the court in order to know the facts. In Oral evidence, the witness talks about the fact by speaking or with gestures. At the end courts decision is based on truth founded by evidence and conduct of proper proceedings. With advancement in technology there should be updates in law too, it’s also essential for society and laws to go hand in hand. There is a heavy dependency of people on digital devices. These devices have helped to open a new era of jurisprudence. The portable devices are very helpful in recording things. Cases are flooded with the question of whether these electronic recordings (or a voice recording) are, from the point of view of the evidence, admissible or not. Giving tape recorded conversation as evidence to law courts have become common these days. We can use recorded conversations as evidence in court as long as that evidence wasn’t obtained illegally. As a general rule, a search warrant is needed to record conversations secretly. Surreptitious tape recordings by telephone are illegal in most states under their respective penal codes. Otherwise, you must have permission from the party being recorded or, at the very least, give the other person notice that the call is being recorded.
Admissibility of Tape-Recorded conversation
The laws regarding admissibility of the electronic record are laid down in Section 65 B of the Indian Evidence Act. The contents of electronic records may be proved in accordance with the provisions of section 65B. Therefore, in order to understand whether a voice recording can be used as an evidence in courts in India, an understanding of section 65B of Indian Evidence Act is necessary.
- Any information contained in an electronic record which is recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document if the conditions mentioned here are satisfied.
- If the conditions are satisfied then such recordings are admissible in any proceedings without further proof or production of the original, as evidence of any contents of the original, or of any fact stated of which direct evidence would be admissible.
Conditions are- The source containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer. During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities. Throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period was not such as to affect the electronic record or the accuracy of its contents. The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person if such electronic record is kept substantially in the form required by law and is produced from proper custody. In any proceedings involving a secure electronic record, the Court shall presume unless contrary, is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates. E.g., in cases of bank frauds, digital track records such as time and date.
Tape recorded conversation is admissible provided-
- the conversation is relevant to the matters in issue.
- there is an identification of the voice.
- the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape record.
A tape-recorded evidence is admissible provided that the originality and the authenticity of the tape are free from doubt. Likewise, Justice Sabyasachi Mukherji held that about the acceptance and reliability of evidence on tape-recording, one should proceed very cautiously and that in this connection on the analogy of mutilated document if the tape-recording is not coherent or distinct or clear, this should not be relied upon. A voice recording provides a clear perspective of the view in the cases of coercion, bribery, threat or in any situation where the person has been mentally tortured via speech.
One of the important case laws is the earliest case in India, the issue of admissibility of tape-recorded conversation came for consideration in Rupchand v. Mahabir Prasad in the present case, the court refused to treat tape recording conversation as writing within the meaning of the General Clauses Act, Section 65 (2) but allowed the same to be used under Evidence Act, section 155 (3). There is no rule of evidence which prevents a party, who is trying to shake the credit of a witness by using the former inconsistent statement, from deposing that while he was involved in the conversation with the witness, a tape recorder was in operation for producing the said tape recorder in support of the assertion that a certain statement was made in his presence was held by the court.
In S. Pratap Singh v. State of Punjab, the tape recorder was considered as evidence. A five judges’ bench of Apex Court considered the issue and clearly stated that tape-recorded statements are admissible in evidence. They also stated that just because this type of evidence can be easily tampered it cannot be rejected as an evidence on this ground alone. As there are many other documents and pieces of evidence that can be tampered. In this case, the conversation recorded in the tape recorder was admitted as 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 considered various aspects of the issue relating to admissibility of tape-recorded conversation. In the present case, the offence was related to section 165-A of the Indian Penal Code. The conversation between the person who wanted to bribe and the complainant was tape-recorded during the investigation. The complainant wanted to use this tape-recorded conversation as evidence against accused but it was argued that the same is violative of section 162 CrPC as well as article 20(3) of the constitution. In this landmark judgment, the court definitely laid down in unambiguous terms that the process of tape recording offers a precise method of keeping and later reproducing sounds. The Apex Court after examining the entire issue in the light of various pronouncements laid down the following principles:
- 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.
Under section 7 of the Indian Evidence Act, the contemporaneous tape record of a relevant conversation is a relevant fact and is admissible. Under section 162 of the Criminal Procedure Code such a statement was not, in fact, a statement made to police during the investigation and, therefore, cannot be held to be inadmissible. Such a recorded conversation though procured without the knowledge of the accused but the same is not elicited by coercion or compulsion nor extracted by force or against the wishes of the accused. Therefore, the protection of article 20(3) was not available. The magnetic tape-recording can erase and re-use the recording medium. Therefore, the evidence must be received with caution. The court must be satisfied beyond a reasonable doubt that the record has not been tampered with.
In the case of Ram Singh v. Col. Ram Singh, following essentials were laid down by the Apex Court for admissibility of tape-recorded conversation:
- The voice of the speaker must be recognized by the person who has recorded or by others who recognize his voice.
- Where the maker has refused to recognize the voice, it will require very strict proof to determine whether or not it was really the voice of the speaker.
- The precision of the tape-recorded statement has to be proved by the person who had recorded the record by satisfactory evidence direct or circumstantial.
- 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.
- According to the rules of Evidence Act, the statement must be relevant. The recorded cassette must be carefully sealed and kept in safe or official custody.
The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.
In section 571 of the Indian Evidence Act, a witness may be corroborated by his or her previous statement for contradiction of a witness during cross examination. Again clause (1) of the section 146 provides that during cross examination, witness may be questioned to test his veracity. Section 153 generally deals with exclusion of evidence to contradict answers to questions testing veracity. Thus, 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. In the case of N. Sri Rama Reddy v. V.V. Giri there was an issue raised that if such evidence is primary and direct or not? The court held that like any document the tape record is considered as primary and direct evidence admissible of what has been said and picked up by the receiver.
Identifying voice- The proper identification of voice i.e., taped voice is a sine qua non for the use of tape recording, the time, place, accuracy of the recording must be proved by a competent witness and the voice must be properly identified. The use of modern technology tools like tape records, video films, polygraph tests, DNA tests, etc. make the probability of truth highly certain. It is a general rule of evidence that all such evidence is admitted which helps the court in arriving at the truth. The provisions of the Indian Evidence Act, coupled with the Information Technology Act, 2000, by and large, makes it clear that the electronic record, which is called as “computer output” is admissible evidence, provided that such evidence shall have to be necessarily accompanied by a certificate, without which, it is inadmissible.
Thus, in today 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.
SHOHNI T A
BMS COLLEGE OF LAW