As regards the evidence recorded on a tape Recorder or other mechanical process the preponderance of authorities is in favour of the admissibility of the statements subject to certain safeguards viz., (1) the voice of the speaker must be identified by the maker of the record or by others who recognise his voice. Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. [414 E] (2) The voice of the speaker should be audible and not distorted by other sounds or disturbances. [414 E] 401
(3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.[414 F]
(4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out; [414 G]
(5) The statement must be relevant according to the rules of evidence and [414 H]
(6) The recorded cassette must be carefully sealed and kept in safe custody. [415 A]
R. v. Maqsud Ali [1975] 2 All E.R. 464 and B. v. Robson [1972] 2 All E.R. 699, referred to.
In the instant case, the voices recorded at a number of places are not very clear and there is noise while the statements were being recorded by the Deputy Commissioner. A good part of the statement recorded on the cassette has been denied not only by the respondent but also the respondent's witnesses. No other witness has come forward to depose identification of the voice of the respondent or of witnesses. [444 E]
There are erasures here and there in the tape and besides the voices recorded being not very clear, lt is hazardous to base a decision on such evidence. The Deputy Commissioner recorded the statements in violation of the instructions or the Government and erred in not placing the recorded cassette in proper custody. He kept it with himself without authority and therefore the possibility of tampering with the statements cannot be ruled out. The transcript was prepared in his office by his stenographer and when the transcript was being prepared the Deputy Commissioner himself was absent from his office. The possibility of its being tampered with by his stenographer or somebody else cannot be ruled out. Respondents witnesses have denied the identity of their voices. The recording was done in a haphazard and unsystematic manner. A conspectus of the evidence of the witnesses shows that the evidence adduced by the respondent in the court is much superior in quality than that adduced by the appellants. The High Court was right in holding that the petitioners had failed to prove the allegations of corrupt practice or booth capturing beyond reasonable doubt.
Supreme Court of India
Ram Singh & Ors vs Col. Ram Slngh on 7 August, 1985
Equivalent citations: 1986 AIR, 3 1985 SCR Supl. (2) 399
VARADARAJAN, A. (J)
MUKHARJI, SABYASACHI (J)
Representation of the People Act 1951: Corrupt Practice how should be Proved.
Evidence Act - Tape recorded statements - When could be used as evidence - Safeguards to be taken in using tape recorded evidence.
HEADNOTE:
In the general election to the State Assembly held in 1982 the appellants and the respondents were the candidates. The respondent was declared elected to the Assembly. In their election petition, the appellants alleged that the respondent was guilty of corrupt practice and booth capturing in that he went to two polling booths along with 50 to 60 persons, armed with guns, sticks and swords, threatened and pressurized the voters and as a result of the serious threats held out by the respondent and his men the voters ran away without exercising their franchise; that the respondent and his companions entered the polling booths and terrorized the Polling Officer and polling agents, assaulted the polling agents at gun point, snatched away the ballot papers and marking them in the respondent's favour, cast the votes in the ballot boxes and thumb marked the counter foil of ballot papers. They sought a declaration that the respondents election was void under section 100 of the Representation of the People Act 1951. A large number of witnesses were examined by both sides. The Deputy Commissioner who was the Returning Officer of the constituency recorded on a tape recorder the statements of same persons including the polling agents, the Polling Officer and the respondent and of himself.
The High Court held that the evidence of the witnesses and the petitioners on these points was not corroborated, no effort was made by the petitioners to connect the respondent with the ownership of vehicles purported to have been used by him, that the witnesses were drawing more upon their imagination to make out stories about the detention of the persons and forcible polling at that polling station by the respondent and that the
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petitioners failed to prove the charge beyond reasonable doubt. A The court also held that the role assigned to the respondent by the petitioners has not been proved. Dismissing the appeal
^
HELD: [Per Fazal Ali J, Sabyasachi Mukharji J concurring and Varadarajan J dissenting] The appellants have failed to prove their case that the respondent was guilty of indulging in corrupt practices. [446 F]
Clear and specific allegations with facts and figures regarding the corrupt practices indulged in by the respondent have not been alleged in the first part of the election petition. The petitioners should have given definitive and specific allegations regarding the nature of fraud or the corrupt practices committed by the respondent as briefly as possible in the main part of the petition. [407 E-F]
The appellants have not established that the respondent was present at the time of the incidents at the two booths. Once this is not proved, the appellants have failed. It is settled law that corrupt practices must be committed by the candidate or his polling agent or by others with the implicit or explicit consent of the candidate or his polling agent. Where the supporters of the candidate indulged in corrupt practices on their own, without the authority from the candidate the election cannot be voided, and this factor is conspicuously absent in this case. It is also settled law that the charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities. As the charge of corrupt practice is in the nature of a criminal charge, it is for the party who sets up the plea of undue influence to prove it, to the hilt and the manner of proof should be the same as in a criminal case. [445 F-H]
As regards the evidence recorded on a tape Recorder or other mechanical process the preponderance of authorities is in favour of the admissibility of the statements subject to certain safeguards viz., (1) the voice of the speaker must be identified by the maker of the record or by others who recognise his voice. Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. [414 E] (2) The voice of the speaker should be audible and not distorted by other sounds or disturbances. [414 E] 401
(3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.[414 F]
(4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out; [414 G]
(5) The statement must be relevant according to the rules of evidence and [414 H]
(6) The recorded cassette must be carefully sealed and kept in safe custody. [415 A]
R. v. Maqsud Ali [1975] 2 All E.R. 464 and B. v. Robson [1972] 2 All E.R. 699, referred to.
In the instant case, the voices recorded at a number of places are not very clear and there is noise while the statements were being recorded by the Deputy Commissioner. A good part of the statement recorded on the cassette has been denied not only by the respondent but also the respondent's witnesses. No other witness has come forward to depose identification of the voice of the respondent or of witnesses. [444 E]
There are erasures here and there in the tape and besides the voices recorded being not very clear, lt is hazardous to base a decision on such evidence. The Deputy Commissioner recorded the statements in violation of the instructions or the Government and erred in not placing the recorded cassette in proper custody. He kept it with himself without authority and therefore the possibility of tampering with the statements cannot be ruled out. The transcript was prepared in his office by his stenographer and when the transcript was being prepared the Deputy Commissioner himself was absent from his office. The possibility of its being tampered with by his stenographer or somebody else cannot be ruled out. Respondents witnesses have denied the identity of their voices. The recording was done in a haphazard and unsystematic manner. A conspectus of the evidence of the witnesses shows that the evidence adduced by the respondent in the court is much superior in quality than that adduced by the appellants. The High Court was right in holding that the petitioners had failed to prove the allegations of corrupt practice or booth capturing beyond reasonable doubt. [441 E, 442 H-443 E]
Sabyasachi Mukharji,J. concurring: While accepting the tape recorded statements the court should proceed cautiously. The 402
evidence should be examined on the analogy of mutilated documents. If the tape recording is not coherent or distinct or clear it should not be relied upon. [502 B,D-E] R. V. Maqsud Ali [1975] 2 All E.R. 464 and R. v. Robson [1972] 2 All E.R. 699, referred to.
In the instant case, the tape recording was misleading and could not be relied on because in most places it was unintelligible and of poor quality. Therefore, its potential prejudicial effect outweighs the evidentiary value of the recording. [504 C]
Shri N. Sri Rama Reddy etc. v. Shri V.V. Giri [1971]1 S.C.R. 399 and R.M. Malkani v. State of Maharashtra [1973] 2 S.C.R. 417 M.Chenna Reddy v. V. Ramachandra Rao & Anr. [1972] E.L.R. Vol. 40, 390; Ram Sharan Yadav v. Thakur Muneshwar Nath Singh & Ors. [1984] 4 S.C.C. 649; C.A.No. 3419/81 decided on 29.11.84, referred to.
It is settled law that the charge of corrupt practice is in the nature of a criminal charge which if proved entails a heavy penalty in the form of disqualification and that a more cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidate. In the instant case, it cannot be said that the appellants had proved their case to the extent required to succeed. [506 D]
Where the question is whether the oral testimony should be believed or not the views of the trial judge should not be lightly brushed aside, because the trial judge has the advantage of judging the manner and demeanour of the witness which advantage the Appellate Court does not enjoy. In view of the nature of the evidence on record there is no reason to disagree with the appraisal of the evidence by the trial judge. [506 G]
Moti Lal v. Chandra Pratap Tiwari & Ors. A.I.R. 1975 S.C. 1178 and Raghuvir Singh v. Raghuvir Singh Kushwaha A.I.R. 1970 S.C. 442, referred to.
Varadarajan J. dissenting : It is clear from decided cases that tape recorded evidence is admissible provided the originality and the authenticity of the tape are free from doubt. In the instant case, there is no valid reason to doubt them. It is not reasonable to reject the tape merely because some portions thereof
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could not be made out on account of noise and interference not only outside but also inside the Polling Station. On the contrary under the circumstances of this case great relevance has to be placed on the tape and its contents not only for corroborating the evidence of the District Commissioner and the Presiding Officer to the extent they go but also as resgestae evidence of the first part of the incident. The Trial Judge was not justified in rejecting the tape record and transcription. The appellants have proved satisfactorily and beyond reasonable doubt the first part of the incident in one of the Polling Stations, that the respondent went armed with a rifle with 25 or 30 companions and entered the Polling Station with 4 or 5 armed companions and threatened the Presiding Officer and others who were present there with the use of force and got some ballot papers marked in favour of the respondent polled forcibly by his companions in the ballot box and that they left the Polling Station on seeing the villagers and the police coming towards the Polling Station. The discrepancy in evidence regarding the time of the incident is not material. [478 A-C, 483 E-484 A]
Secondly, the Deputy Commissioner recorded the conversation which he had with the presiding Officer but some portion thereof was erased by his own voice by inadvertence. After recording, his stenographer prepared the transcript in his office most of it under his supervision and though he was temporarily absent to attend to some other work he compared it with the original tape and found it to be correct. The tape, the tape recorder and the transcript remained with him throughout and were not deposited by him in the record room and there was not possibility of tampering. [496 F-497 A]
The respondent had managed to keep away from the court material evidence by way of the original report of the Presiding Officer. He had cited a person as his witness to depose about his case but did not examine him for that purpose and had called him only for the purpose of production of some record, without any oath being administered to him. He had denied to the appellants the opportunity to cross-examine that witness. The respondent had come forward with a new case of alleged booth capturing and forcible polling of bogus votes after the appellants had completed the examination of their witnesses to whom not such suggestion was made in the cross-examination. From the evidence on record two views are not possible. The appellants have proved beyond reasonable doubt that the respondent had committed the corrupt practices alleged against him. No lenient view can be taken in this case merely because the election petition is directed against the returned candidate. [499 G-500 B]
This Court had the occasion to go into this question in a few cases and it will be useful to cite some of the decisions. In Yusufalli Esmail Nagree v. State of Maharashtra [1967] 3 S.C.R. 720, this Court, speaking through Bachawat, J. Observed thus:
"If a statement 'is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be
413
properly identified. One of the features of magnetic tape RECORDING is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, 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 was not sealed and was kept in the custody of Mahajan The absence of sealing naturally gives rise to the argument that the recording medium might have been tempered with before it was replayed."
(Emphasis ours)
In the case of N. Sri Rama Reddy, etc. v. V.V.Giri [1971] 1 S.C.R. 399, the following observations were made: "Having due regard to the decisions referred to above, it is clear that a previous statement, made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality.
In R.M. Malkani v. State of Maharashtra [1973] 2 S.C.R. 417, this Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape-recorded statement admissible otherwise not; and observed thus: "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.
(Emphasis supplied)
In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors., [19751 Supp. S.C.R. 281, Beg,J. (as he then was, made the following observations:
"We think that the High Court was quite right in holding that the tape records of speeches were 414
"documents" , as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions: (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who knew it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, DIRECT or circumstances, had to be there 80 as to rule out possibilities of tampering with the record.
(c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the evidence Act." (Ephes ours)
Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows:
(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 strick 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 con text and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
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(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.
The view taken by this Court on the question of admissibility of tape recorded evidence finds full support from both English and American authorities. In R. v. Maqsud Ali, [1965] All. E.R. 464., Marshall, J., observed thus:- C "We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.
We find ourselves in complete agreement with the view taken by Marshall, J., who was one of the celebrate Judges of the Court of Criminal Appeal. To the same effect is another decision of the same court in R. v. Robson [1972] 2 All E.R. 699, where Shaw, J., delivering a judgment of the Central Criminal Court observed thus:
"The determination of the question is rendered more difficult because tape recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts.
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During the course of the evidence and argument on the issue of admissibility the recordings were played back many times. In the end I came to the view that in continuity, clarity and coherence their quality was, at the least, adequate to enable the jury to form a fair and reliable assessment of the conversation which were recorded and that with an appropriate warning the jury would not be led into and interpretation unjustifiably adverse to the accused. Accordingly, so far as the matter was one of discretion, I was satisfied that / injustice could arise from admitting the tapes in evidence and that they ought not to be excluded on this basis."
In Amercian Jurisprudence 2nd (Vo1.29) the learned author on a conspectus of the authorities referred to in the footnote in regard to the admissibility of tape recorded statements at page 494 observes thus:
"The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows:
(1) a showing that the recording device was capable of taking testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the recording;
(4) a showing that changes, additions, or deletions have not been made;
(5) a showing of the manner of the preservation of the recording;
(6) identification of the speakers; and
(7) a showing that the testimony elicited was voluntarily made without any kind of inducement. 417
..However, the recording may be rejected if it is so inaudible and indistinct that the jury must - (Emphasis ours)
We would, therefore, have to test the admissibility of the tape recorded statements of the respondent, given in the High Court as also in this Court, in the light of the various tests and safeguards laid down by this Court and other Courts, referred to above. We shall give a detailed survey of the nature and the character of the statement of the respondent in a separate paragraph which we intend to devote to this part of the case, which is really an important feature and, if accepted, may clinch the issue and the controversy between the parties on the point of corrupt practice.
We can see no difference in principle between a tape recording and a photograph. In saying that we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of recording can be proved and the voices recorded properly indentified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. In R. v. Robson [1972] (2) All E.R. 699, which arose out of a case where the accused was charged with corruption the prosecution sought to put in evidence certain tape- recordings. The defence contended that they were inadmissible in evidence as inter alia they were in many places unintelligible. It was however not contended that the tape recordings was inadmissible evidence of what are recorded in them. The originality and authenticity of the tape were left to the jury in that case.
In Yusufalli Esmail Nagree v. State of Maharashtra [1961] (3) S.C.R. 720 this Court has observed: 457
"Like a photograph of a relevant incident a contemporaneous dialogue of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act. Reference has been made in that case to Roop Chand v. Mahabir Parshad and Anr. A.I.R. 1956 Punj. 173; Mahindra Nath v. Biswanath Kundu 67 C.W.N. 191; Pratap Singh v. The State of Punjab [1964] 4 S.C.R. 733 and B. v. Maqsud Ali [1965] 2 All E.R. 464.
In Shri U. Sri Rama Reddy Etc. v. Shri V.V. Giri [1971] 1 S.C.R. 399, a decision of five learned Judges of this Court the following observation made in Yusufalli's case (supra) has been quoted with approval:
"The contemporaneous dialogue between them formed part of the res gestae and is relevant and admissible under s.8 of the Indian Evidence Act. 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 s.7 of the Indian Evidence Act. "
In R.M. Malkani V. State of Maharashtra [1973] 3 S.C.R. 417, this Court observed:
"Tape recorded conversation is admissible, provided first that 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 photo graph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act. 458
In Ziyauddin Burhanduuain Bukhari v. Brijmohan Ramdas Mehra Ors. [197] Suppl. S.C.R. 281, this Court approved the High Court relying upon the tape recorded reproduction of the successful candidates' speeches to voters for holding that he had appealed to them in the name of religion. Mr. Rao learned counsel for the respondent relied upon the following four decisions in regard to the proof required in cases where election or returned Candidates is alleged to be void on the ground of corrupt practice.
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