EVIDENTIARY VALUE OF TAPE RECORDED CONVERSATION:
A CRITICAL STUDY
Submitted to:
Ms. Vinita Tripathi
(Faculty In-charge of Law of Evidence)
Submitted by:
Kamaljeet Meena
Roll No.: 68
B.A. L.L.B. (HONS.)
Semester VII
Section: C
SPECIAL REPEAT PROJECT SUBMISSION
Hidayatullah National Law University
Uparwara Post, Abhanpur, New Raipur – 492002 (C.G.)
DECLARATION
I hereby declare that the project work entitled “Evidentiary Value of Tape Recorded
Conversation: A Critical Study” submitted to Hidayatullah National Law University,
Raipur, is a record of an original work done by me under the able guidance of Ms. Vinita
Tripathi, Faculty In-charge, Law of Evidence, Hidayatullah National Law University, Raipur.
Kamaljeet Meena
Roll No.: 68
Section: C
Semester: VII
Page | 1
ACKNOWLEDGEMENTS
I feel highly elated to work on the topic “Evidentiary Value of Tape Recorded
Conversation: A Critical Study”. This research venture has been made possible due to the
generous co-operation of various persons. To list them all is not practicable, even to repay
them in words is beyond the domain of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Faculty-in-charge,
Ms. Vinita Tripathi, for her kind gesture in allotting me such a wonderful and elucidating
research topic. Her consistent supervision, constant inspiration and invaluable guidance have
been of immense help in understanding and carrying out the nuances of the project report.
Page | 2
TABLE OF CONTENTS
DECLARATION........................................................................................................................1
ACKNOWLEDGEMENTS.......................................................................................................2
OBJECTIVES............................................................................................................................4
RESEARCH METHODOLOGY...............................................................................................4
INTRODUCTION......................................................................................................................5
NATURE....................................................................................................................................7
EVOLUTION OF LAW RELATING TO ADMISSIBILITY OF TAPE-RECORDED
EVIDENCE................................................................................................................................7
CONDITIONS OF ADMISSIBILITY.....................................................................................10
UTILITY/EVIDENTIARY VALUE........................................................................................10
Corroboration/Contradiction................................................................................................11
IDENTIFICATION OF VOICE...............................................................................................12
Transcript:............................................................................................................................12
CRITICAL REVIEW AND LANDMARK JUDGEMENTS..................................................13
INTERNATIONAL PERSEPECTIVE AND USAGE OF TAPE-RECORDED EVIDENCE 15
CONCLUSION........................................................................................................................17
REFERENCES.........................................................................................................................18
Books....................................................................................................................................18
Articles.................................................................................................................................18
OBJECTIVES
Page | 3
The objective of this project is to delve into the intricacies of tape recorded evidence and their
admissibility and evidentiary value in the court of law. The project seeks to develop a finer
understanding of Tape recorded evidence and delves into the deeper realms of law on the
subject.
RESEARCH METHODOLOGY
The methodology which is followed while making this paper is strictly doctrinal. Therefore,
all the material which are referred in due course are secondary sources namely, books,
research papers and articles published in books, journals, online database/libraries,
newsletters etc.
Footnotes have also been provided for acknowledging the source.
Page | 4
INTRODUCTION
The legal system in our country has to adapt itself with the ever changing technology in
today’s world. When it comes to the Law of Evidence, the same is applicable. The Judiciary
has accepted the advent of technology in data recording including the wonder of tape
recording. Tape recorded conversation is one of the measures adopted by courts today for
dealing with cases conveniently. It is a positive and effective addition to the methods of data
recording.
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, courts
in India as well as in England devised and developed principles so that such evidence may be
received 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 judiciary regarding utility and admissibility of tape recorded conversation,
from time to time found its manifestation in various pronouncements. In Hopes v. H.M.
Advocate,1 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
1 1960 Scots Law Times 264
Page | 5
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,2 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.
2 1965(2) All ER 461.
Page | 6
NATURE
Tape-recorded conversation is nothing but information stored on a magnetic media. In the
case of Roopchand3, 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 Bukhari4
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, 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.5
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.
EVOLUTION OF LAW RELATING TO ADMISSIBILITY OF
TAPE-RECORDED EVIDENCE
In India, the earliest case in which issue of admissibility of tape-recorded conversation came
for consideration is Rupchand v. Mahabir Prasad.6 The court in this case though declined to
treat tape-recorded conversation as writing within the meaning of section 3 (65) 7 of the
3 AIR 1956 Punjab 173.
4 Supra note 19 at Pg.12.
5 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 statement is called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such documents are
called documentary evidence.
6 AIR 1956 Punjab 173.
7 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.
Page | 7
General Clauses Act but allowed the same to be used under section 155(3) 8 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 endeavouring 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 Punjab9 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 Maharashtra10 considered various
aspects of the issue relating to admissibility of tape recorded conversation. This was a case
relating to an offence under section 165A 11 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
16212 CrPC as well as Article 20(3) 13 of the Constitution of India. 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,
8 By proof of former statement inconsistent with any part of his evidence which is liable to be contradicted.
9 AIR 1964 SC 72.
10 AIR 1968 SC 147.
11 [Rep. by the Prevention of Corruption Act, 1988 (49 or 1988), Sec. 31.].
12 162. Statements to police not to be signed: Use of statements in evidence.
(1) No statement made by any person to a police officer in the course of' an investigation under this Chapter,
shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record
thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any
purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at
the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has
been reduced into writing as aforesaid, any part of' his statement, if duly proved, may be used by the
accused, and with the permission of' the Court, by the prosecution, to contradict such witness in the manner
provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of' such statement
is so used, any part thereof' may also be used in the re-examination of such witness, but for the purpose only
of explaining any matter referred to in his cross-examination.
13 No person accused of any offence shall be compelled to be a witness against himself.
Page | 8
a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible
under section 714 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 815 of the Indian Evidence Act.
b) The contemporaneous tape record of a relevant conversation is a relevant fact and is
admissible under section 716 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 17 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)18 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.
In Mahabir Prasad v. Surinder Kaur19, it was held that a tape recorded conversation can only
be relied upon as corroborative evidence of a conversation and in the absence of evidence of
any such conversation, the tape recorded conversation is indeed no proper evidence and
cannot be relied upon.
CONDITIONS OF ADMISSIBILITY
14 Sec 7- Facts which are occasion, cause or effect of facts in issue - 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.
15 Sec 8- Motive preparation and previous or subsequent conduct - 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.
Explanation 1. - The word "conduct" in this section does not include statements unless those statements
accompany and explain acts other than statements; but this explanation is not to affect the relevancy of
statements under any other section of this Act.
Explanation 2. - When the conduct of any person is relevant, any statement made to him or in his presence and
hearing, which affects such conduct, is relevant.
16 Supra note 11 at Pg. 10.
17 Supra note 9 at Pg. 10.
18 Supra note 10 at Pg. 10.
19 AIR 1982 SC 1043.
Page | 9
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.20 In the case of Ram Singh v. Col. Ram Singh,21
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.
UTILITY/EVIDENTIARY VALUE
The next question regarding evidence of the tape-recorded information is about utility and
evidentiary value. In this respect following points require consideration:
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.22 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
20 Supra Note 4 at Pg. 9.
21 AIR 1986 SC 3.
22 AIR 1971 SC 1162.
Page | 10
Maharashtra.23 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
case24, a three judges bench of the Apex Court in the case of Ziyauddin Burhanuddin
Bukhari v. Brijmohan Ramdas Mehta,25 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.
CORROBORATION/CONTRADICTION
Under section 15726 of the Indian Evidence Act, a witness may be corroborated by his/her
previous statement. Section 14527 of the Act permits use of a previous statement for
contradiction of a witness during cross-examination. Again clause (1) of section 146 28
provides that during cross examination, question may be put to a witness to test his veracity.
Section 15329 generally deals with exclusion of evidence to contradict answers to questions
23 AIR 1973 SC 157.
24 AIR 1971 SC 1162.
25 AIR 1975 SC 1788.
26 Sec 157. Former statements of witness may be proved to corroborate later testimony as to same fact - In
order to corroborate the testimony of a witness, any former statement made by such witness relating to the same
fact, at about the time when the fact took place, or before any authority legally competent to investigate the fact,
may be proved.
27 Sec 145. Cross-examination as to previous statements in writing - 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.
28 Sec 146. Questions lawful in cross-examination - When a witness is cross-examined, he may, in addition to
the question here in before referred to, be asked any questions which tend-
1. To test his veracity,
2. To discover who is and what is his position in life, or
3. To shake his credit, by inuring his character, although the answer to such questions, might tend directly or
indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or
forfeitures.
29 Sec 153. Exclusion of evidence to contradict answer to questions testing veracity - When a witness has been
asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit
Page | 11
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) 30 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.
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.
TRANSCRIPT:
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,31 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
by injuring his character, no evidence shall be given to contradict him, but if he answers falsely, he may
afterwards be charged with giving false evidence.
Exception 1. - If a witness is asked whether he has been previously convicted of any crime and denies it,
evidence may be given of his previous conviction.
Exception 2. - If a witness is asked any question tending to impeach his impartiality, and answers it by denying
the facts suggested, he may be contradicted.
30 Sec 155. Impeaching credit of witness - 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:
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be
unworthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bride or has received any other
corrupt inducement to give his evidence;
(3) by proof of former statement inconsistent with any part of his evidence which is liable to be contradicted;
(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of
generally immoral character.
Explanation - A witness declaring another witness to be unworthy of credit may not, upon his examination-in-
chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which
he gives cannot be contradicted, though if they are false, he may afterwards be charged with giving false
evidence.
31 AIR 1975 SC 1788.
Page | 12
transcripts can be used by a witness to refresh his memory under section 159 32 of the
Evidence Act and their contents can be brought on record by direct oral evidence in the
manner prescribed by section 16033 of Evidence Act.
CRITICAL REVIEW AND LANDMARK JUDGEMENTS
The evidentiary value of this tape recorded conversation has been in dispute since its
inception on one hand it has been criticized by authors and on the other hand the judiciary has
laid vast guidelines in accepting the admissibility of the same. The various landmark
judgments in this issue are further discussed for better understanding. The case of R.M.
Malkani v. State of Maharashtra34 revolved around the question of whether criminal
prosecution could be initiated against a person on the basis of certain incriminating portions
of a telephone conversation that he had with another individual, the conversation having been
recorded by the police. The appellant was the Coroner of Mumbai and was trying to obtain
illegal gratification to the tune of Rs. 15,000 from an honest doctor, whom he planned to
implicate in a case involving the negligent death of a patient. The doctor was not interested in
paying the bribe and instead contacted the Anti-Corruption Bureau of the Police. On the
directions of the police officials, he proceeded to have a phone conversation with the
appellant where they discussed the amount of money to be paid, the place of delivery, etc.
The conversation was recorded without the knowledge of Malkani and charges were filed
against him on the basis of the incriminating statements that he had made.
The Supreme Court held that having another person listening in on a conversation was a
‘mechanical process’ and that there was no element of compulsion or coercion
involved which would have otherwise violated the Act. As regards the admissibility issue, on
the one hand the Court appreciates the method, terming it a mechanical ‘eavesdropping
32 159. Refreshing memory. - A witness may, while under examination refresh his memory by referring to any
writing made by himself at the time of the transaction concerning which he questioned, or so soon afterwards
that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person and read by the witness within time
aforesaid, if when he read it he knew it to be correct.
When witness may use copy of document to refresh his memory - Whenever a witness may refresh his ness may
refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of
such document.
Provided the Court be satisfied that there is sufficient reason for the non-production of the original.
An expert may refresh his memory by reference to professional treatises.
33 160. Testimony to facts stated in document mentioned in Section 159 - A witness may also testify to facts
mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of the
facts themselves, if he is sure that the facts were correctly recorded in the document.
34 AIR 1973 SC 157.
Page | 13
device’. But then perhaps realizing that it was wrong, hastily added-it should be used
sparingly, under proper direction and with circumspection. The tape-recorded evidence was
compared with a photograph of a relevant incident, and going on this assumption it was
decided that Sections 7 and 8 of the Evidence Act, 1872 would not hit the admission of
improperly obtained evidence. What the Apex Court did was to hold that illegally obtained
evidence would be admitted in Court since the eavesdropper neither subjects the person to
duress nor interferes with his privacy. Ray, J. while giving the verdict, was influenced by
American case law on the subject. He relied on the judgment of the US Supreme Court in the
case of Roy Olmstead v. United States of America35 , which had by then been overruled, by
the Berger and Katz cases. The doctrine adopted in the Olmstead case was that surveillance
without trespass and without the seizure of any material fell outside the constitutional ambit.
Thus Ray, J. was of the opinion that the tape recording of the conversation would not be
repugnant to Articles 20(3) and 21 of the Indian Constitution and this opinion was grounded
in the judgment of an overruled American case.
What is disheartening is the fact that the Court is endorsed such unnecessary short cuts as a
means to obtain conviction, and the problem is that while this may represent the easy way out
for the police, they imperil the liberties of the citizens. No respect has been attached to the
means by which the end could be achieved. We are thus creating a law enforcement
machinery and a judicial organisation devoid of any morals whatsoever, and thus tilting the
balance in any Court case inextricably in favour of the prosecution. Sadly, the safeguards
suggested were wholly inadequate and could not compensate for the fact that mechanical
eavesdropping had been freed from all constitutional restraint.
This development is especially important when one takes into account the amendment of
1971 that granted the Government the license to tap any phone conversation it wished
without being made accountable or answerable to anybody. Guidelines were only framed two
decades later when a voluntary organisation took the initiative and approached the Supreme
Court for assistance.
C.B.I. v. Abdul Karim Ladsab Telgi36
In this case one of the question was whether requiring the accused to lend his voice sample
against his wish, to the investigating agency, for the limited purpose of identification of his
35 276 U.S. 609.
36 2008 CriLJ 532.
Page | 14
voice so as to compare the same with the tape recorded telephonic conversation amounts to
“testimonial compulsion” and so prohibited by Article 20(3) of the Constitution?
It was held that applying the principle in State of Bombay v. Kathi Kalu Oghad37 such
requirement could not infringe Article 20(3) of the Constitution of India, as it is outside the
limit of “testimony” much less, “testimonial compulsion”.
It is well settled by R. M. Malkani’s case that tape-recorded conversation is admissible in
evidence, provided, it fulfils certain conditions; one of them being identification of voice.
When identification of voice is the quintessence for the admissibility of the tape recorded
conversation, it would be preposterous to suggest that it is not open to the investigating
agency to require the accused to lend his voice sample for the purpose of identification of his
voice with the tape recorded telephonic conversation.
INTERNATIONAL PERSEPECTIVE AND USAGE OF TAPE-
RECORDED EVIDENCE
The instruments and apparatus by which science has enlarged our knowledge of the otherwise
invisible cosmos are almost myriad in number.38
The sense of hearing is enlarged by telephony, so that sounds electrically transmitted are
heard and understood from a distance whence they would originally be inaudible. The
Phonograph and the dictograph fall under the category of telephone. 39 It is accepted under
various circumstances. Worldwide, courts have accepted recorded evidence for variety of
cases including nuisance40, damage by noise41, et al.
Where the recording device operates as no more than a calculator, the print-out or other
reading is an item of real evidence. In R v. Spiby42, the Court of Appeal had to consider
whether the rule against hearsay applied to the print-out from a device which monitored
telephone calls and recorded the numbers to which calls were made and their duration. The
court held that the print-out was an item of real evidence and not caught by the hearsay rule,
37 AIR 1961 SC 1808.
38 Ahrens, Scientific Evidence and the Law: Identification, Verification of Verbal Testimony and Physiological
Proof, 13 N.Y.L.F. 612 (1968).
39 3 Wigmore, Evidence § 795a (3), (Chadbourn rev. 1970)
40 Ragusa v. American Metal Works, 97 So. 2d 683 (La. App. 1957).
41 Loring v. Boston Elev, R.R., Superior Court of Suffolk, Boston Transcript, Dec. 12 (1905).
42 (1990) 91 Cr App. R 186.
Page | 15
because the recording was entirely automatic and did not depend on anything that had passed
through a human mind.43
As compared to India, the law concerning admissibility of stolen evidence in England is a lot
more flexible. A notable factor of significance in determining where tapping may be
appropriate is the seriousness of the offence being investigated. What is relevant is, the value
of the evidence obtained alongside the extent to which the code was breached. With a serious
crime committed, significant breach of the code may not render evidence obtained
inadmissible.44 In R v Khan45 evidence was deemed admissible, with the court
acknowledging that the seriousness of the crime being investigated was of importance and
was seen to outweigh the improper conduct of the police. In this case breach of privacy,
trespass to property and also damage to such; along with the usage of listening devices in
private premises were found in the conduct of the police. The value of evidence that the
police anticipate discovering through improper conduct may be of significance in justifying a
decision to so act. As shown in the decision of the Court in the case of R v. Latif46 where a
crime is of a serious nature the courts have tended to be reluctant to exclude evidence. The
voices recorded must, of course, be identified by admissible evidence and, if there is a
challenge to the authenticity of the recording, the court must be satisfied on this matter before
admitting it. However, it seems that it is enough merely to establish a prima facie case for
authenticity.47
As regards the admissibility, the European law was summed up in the case of c48. The right to
respect for private and family life, home and correspondence is often said to be violated.
Article 8 is one of those provisions of the European Convention on Human Rights in which,
first, the right or liberty is given and, secondly, limitations and restrictions are provided for.
Thus, Article 8(2) states that an individual's privacy interests may be legitimately interfered
with if three conditions are met: first, that the interference is in 'accordance with law';
secondly, that it is 'necessary in a democratic society'; and thirdly, that it is for a certain
specified purpose.49
43 Christopher Allen, Practical Guide to Evidence, 3rd ed. (Cavendish Publishing, London, 2004).
44 Adam Tomkins, Intercepted Evidence: Now you hear me, Now you don’t., The Modern Law Review, Vol. 57,
No. 6 (Nov., 1994), pp. 941-954.
45 [1990] 2 S.C.R. 531.
46 [1995] 1 Cr App R 270.
47 R v. Robson and Harris (1972) 56 Cr. App. R 450.
48 Von Colson v Land Nordrhein-Westfahlen, Series A, Vol 82 (1985) 7 EHRR 14.
49 Supra note 44.
Page | 16
CONCLUSION
In the present day, generally, Courts accept the applications for producing the recorded tape
as evidence before the Court because of growth of technology in all spheres of the world.
Whether the accepted tapes have any evidentiary value or not is decided by the Courts on the
basis of the above mentioned conditions. So applying the principle of rationality, Courts
generally are not barred from accepted evidence of this nature in the form of tape
recorded conversation. The question of admissibility as evidence comes after its
production before the Court. But when the application for producing the recorded tape is
made after a long time passed in the matter, then the Courts can refuse the application. This is
because, showing the Court that such type of evidence is present after a long period of
dealing by the Court then it is not entertained due to limitation. It also puts the question mark
over its authenticity at the preliminary stage.
In today’s world, to deal with matters of law and related problems, it is necessary to make
changes with the time and according to the situation demands. Tape-recorded conversation,
as evidentiary value in the Court of law is one of the positive and effective changes with
the growth of technology. But as a mechanical product, it is far from its authenticity.
The Indian Evidence Act does not elaborate on this type of evidence which adds
ambiguity to its nature. Some amendments have been made but more are required due
to emergence in the fields of cyber law, the Information Technology Act, etc. Till now,
mostly the concepts about recorded tapes are explained through judicial
pronouncements. It is high time that specific enactments be made by taking existing
information as a base in order to remove ambiguity. For examining authenticity of recorded
tapes, help of experts and laboratories is used which is a good move for using it more
effectively as evidence and getting knowledge about the technicalities attached to it.
Page | 17
REFERENCES
BOOKS
M.C. Sarkar (et.al.), Sarkar’s Law of Evidence (Wadhwa and Company, New Delhi,
2004, 15th ed., Vol. 1)
Vepa P. Sarathi, Law of Evidence (Eastern Book Company, Lucknow, 2006, 6th ed.)
Batuk Lal, Law of Evidence (Central Law Agency, Allahabad, 2012, 19th ed.,)
Christopher Allen, Practical Guide to Evidence, 3rd ed. (Cavendish Publishing,
London, 2004)
ARTICLES
Ahrens, Scientific Evidence and the Law: Identification, Verification of Verbal
Testimony and Physiological Proof, 13 N.Y.L.F. 612 (1968)
Rajesh Punia, Tape Recorded Conversation-Nature and Relevancy as an Evidence,
(Criminal Law Journal, Vol. 114, Pt. 1297, Jan 2008)
Adam Tomkins, Intercepted Evidence: Now you hear me, Now you don’t., The
Modern Law Review, Vol. 57, No. 6 (Nov., 1994), pp. 941-954
Page | 18
