The 1872 Indian Evidence Act dealt primarily only with 2 kinds of evidence, i.e.
Oral and documentary. In previous times, it has never been realized that the
judiciary would have to experience plenty of evidences and address their
validity with the progress of time and technology.
The term Evidence
derived from the Latin term 'evidere' that inferred to demonstrate especially,
to explain view or vision, to indisputably discover, to prove, to sure, to find
a way to show. Proof
means, as shown by Sir Blackstone, whatever explains,
affirms or recognizes the truth of present facts or emphasizes on either one
aspect or another. According to Sir Taylor, the Rule of Evidence means that
every self-evident fact is shown or rejected by contention. The validity of the
same is proposed for legal review.[i]
Under the legal framework, the development and application of evidence depends
firstly on the construction on which the weight of justification rests. For the
purposes for selecting and hearing a particular lawsuit, the permissible
evidence is something the courts receive and consider. There are two fundamental
weight of-verification considerations in the legal framework. The initial one is
upon whom burden is based.
The burden of proof is imposed on the indictment in
several, especially in western, courts. The corresponding thinking is that the
degree of confirmation of certainty must be met, based both on the amount and
quality of proof. For criminal and common cases, such levels are distinct, the
former requiring evidence sensitive history, the latter considering just which
party seems to have the supremacy of evidence, or if the claim is almost
certainly true or false. If the value of validation has been met, the judge will
decide considering all the facts and circumstances. Proof is first collected and
then brought to the courts at the end for verification.
Section 3 of the Indian Evidence Act defines evidence as:
Evidence means and includes
- All the statements which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under enquiry; such statements are
called Oral evidence;
- All the documents including electronic records produced for the inspection of
the court; such documents are called documentary evidence;[ii]
The definition provided in Section 3 mentions about Oral evidence that has to be
recorded under S. 60, IEA. Oral Evidence is every one of such reasons that the
courts require or predict that the witnesses must render in their nature with
regard to the truth of the facts. Oral Evidence is evidence which has been
witnessed or heard by the witness. Oral proof should be continuously instant or
positive. Evidence is instantaneous when the main reality in question is
While on the other hand documentary evidence is referred
to as each of such documents which are filed in the courts for inspection of
records. It is the documentary evidence that will demonstrate the true nature of
the gatherings and their cognizance and such evidences have higher priority than
any oral evidence. Apart from these, the other evidences are the Primary
evidences which according to the S. 62, IEA, which is considered to be the top
Secondary Evidence as stated under S. 63 is optional evidence
and possesses an additional position. Additionally, real evidence, hearsay
evidence, judicial and non-judicial evidence, direct and circumstantial
evidences are also the types under which various evidences are submitted.
Another major aspect while dealing with evidences under IEA is the electronic
evidences. Electronic Evidence is "documentation of evidentiary value which is
collected or transferred in electronic code[iii]." Evidence not only is
restricted to that discovered on computer systems, but may also apply to proof
on electronic devices such as telecommunications or digital multimedia devices.
Digital Evidence can be found in mails, images, ATM transaction information,
internet browsing, notes, online messaging history, data saved from accounting
systems, spread-sheet applications, internet user history archives, computer
storage material, computer archives, computer photocopies, hotel digital door
locks, videos or audio files and even tape recordings.[iv] In previous times, it
was never understood that tape recorded interactions could potentially play a
huge role in presenting valuable evidence in litigation with the rise of
technology. As a result, no law was passed as to the validity, existence and
evidentiary importance of the discussions or remarks reported in the
However the way of committing crimes has modified
over the time, many crimes are committed behind closed doors such as fraud etc.
for which it is not an easy task to gather proof. Therefore other techniques are
being developed to collect data, such as tape recordings, telephone tapping,
etc. As time has elapsed, the courts were constantly bombarded with the issues
of the taking of evidence of this sort in the absence of any clear laws and have
been examined to establish regulations and procedures for such issues, given
their extreme significance in cases particularly in which other types of direct
evidence are inadequate.[v]
While in cases where tape recorded conversations were given as evidence before
the courts, the admissibility of the same was subjected by various guidelines
and requisites as laid down by the court in various cases which are discussed in
detail below. Another kind of evidence that has come into light is the sniffer
dog or dog tracking evidence and its admissibility in the Indian courts.
courts have time and again tried to look at this form of evidence and have
stated that such evidence cannot be used to convict an accused and even if
admissible in the court of law, does not carry enough weight. In this assignment
the author has tried to examine the validity of tape recording evidence, its
admissibility when recorded illegally, its relation to res gestae and an
infringement on the fundamental right to privacy of a person. Additionally, the
paper also focuses on the dog tracking evidence, its admissibility and the
court’s stand on the same along with expert evidence and its admissibility
regarding the same with relevant and recent case laws.
Tape Recordings And Its Relevancy As Evidence Under IEA, 1872
Illegally obtained evidences and its admissibility:
The Indian Evidence Act, 1872, takes great pride by being at a position in
being the one statute with the least amount of amendments. It is detailed as
well as succinct, and designed by Sir James Stephen with the special diligence.
But for their outdated ideals and absence of significance in the modern period,
several other statutes and legislations have been under scrutiny.
In the context
of illicitly obtained proof by tape-recording, one of these is the Telegraph
Act, 1885, and the researcher aims to investigate the interrelationship and the
subsequent misunderstanding between these two statutes. There is no opportunity
to resolve and tackle the situation arising out from this area in the list of
Indian legislation. In several other nations, this issue has been resolved by
implementing strict legislation concerned with tape recorded testimony,
juxtaposing the interests of the convicted party and the responsibility to
community as a whole and making a balance.[vi]
While evidence collected unlawfully has usually been assigned a high standard of
proof, the researcher would try to criticize the rather casual translation of
this theory into the Indian legal form, in spite of its inherently defective
existence.[vii] Per se, accepting unlawfully acquired information does not
appear to be in accordance with the evidentiary framework. Yet a trade-off among
legality and justice has been made by the courts, which seems to have had little
reluctance in considering facts fraudulently acquired. Apprehension was
specifically limited to verification tests, not to the conditions during which
the evidence was collected.
If there is an uncertainty regarding
the relevancy of a fact, under Section 165 of the Indian Evidence Act, 1872, a
Judge may raise concerns about the same.[viii] The Apex Court ruled that a new
appeal should not be permitted on the grounds of an inappropriate acceptance or
denial of evidence, until the Court finds that there has been a serious mistake
or failure of evidence in the case.[ix]
If the proof is inadmissible per
se and cannot be allowed under any clause of the Indian Evidence Act, the
defeat to challenge its acceptance in the Court of Appeal would not make it
relevant and admissible and also not prohibit a party opposing to acceptance
from addressing the argument in the Appellate Court. It is correct that this is
absolutely inside the authority of the Courts to approve or deny a piece of
proof. It has total discretion within the issue, but such power is to be
There are certain factors to be looked upon before deciding on admissibility of
any evidence: [x]
- Acceptability of police methods
- Reliability of the statement or document or material evidence
In this area or subject of illegally obtained evidences, tape recorded evidences
and its admissibility have relatively been unnoticed. This is highly critical,
since it is a procedure widely being used by police to gather information. It
might be for different reasons - to refute a witness, or to confirm the crime,
i.e. to demonstrate the fact in question in a court.
It can also be component of
what commonly is known to be "wiretapping" or "eavesdropping." There seems not
to be a separate remedy for such two approaches in the Indian framework. Its
validity is the primary issue correlated with these proofs. There are distinct
rules to comply with these two ways of gathering evidence in other nations.
Admissibility of Tape-Recorded evidence:
After Independence, one of the very first instances to address the issue
whether the documentation of a conversation that existed on a tape
recorder could be accepted within the Indian Evidence Act was Rup Chand v.
[xi] "A sole Punjab High Court judge placed no uncertainty "that
the tape cannot be regarded as a piece of writing."[xii] But that did not
indicate that documentary proof cannot contain recordings. In reality, the very
same judgment indicated that a tape recording of a statement can be created in
court and permitted under S.5 of IEA to rebut a witness. It was impliedly,
conditional to corroborative checks.[xiii]
With respect to this, one highly essential interpretation was made in the case
of Malkani that the Courts should be assured, beyond possible suspicion that the
recording was not interfered with. That was remarkable as it is an evidentiary
concept which has been articulated in this judgment - there appears to be no
justification over such a clause in the Indian Evidence Act. In turn, this will
make it more difficult for the party trying to depend on such proof by bringing
this under a very serious burden of evidence, because the level and extent of
evidence is beyond reasonable doubt.
Within S.3, even from a clear
interpretation of the meaning of the term "document" [xiv]found there, a tape
recording could be included. It consists of matters defined on the tape by ways
of markings being used for recording purposes. This understanding is often used
in common law and it has grown to be recognized by Indian courts.
A five-judge panel of the Supreme Court found the matter in S. Pratap Singh v.
State of Punjab
[xv] and specifically argued that tape recorded conversations are
permissible in proof and mere fact that certain evidence could be easily
manipulated, which definitely cannot be a basis for denying or refusing to
accept such evidence as inadmissible. The transcript of the discussion was
accepted as relevant evidence to substantiate the testimony of witnesses who
claimed that such a discussion had actually occurred.
By additional recordings, the original tape recorded communication can be
quickly discarded and addition could be transposed. Although this aspect will
have an impact on the value to be applied to proof but not on its
permissibility. Inevitably, if there is a well-founded presumption in a specific
case that the tape recording has been manipulated with, as in in Pratap Singh v.
State of Punjab,[xvi] it will be a reasonable argument for the courts to dismiss
its evidentiary importance entirely.
In the matter of Ram Singh v. Col. Ram Singh
, [xvii] the Supreme Court highlighted the preceding criteria for the
permissibility of the communication captured on the tape: [xviii]
- The sound of the speaker should be properly recognized by the
person making the recording or by those who understand his sound.
Where the creator has refuted the speech, very stringent evidence
would be needed to decide whether or not this was the speaker's
- The authenticity of the documented tape statement must be proven
explicitly or circumstantially by the creator of the recording by
- The probability of manipulating or deleting a portion of a
documented statement from a tape should be ruled out, or else the
recorded statement could be made out of scope and thus
- As per the Evidence Act laws, the statement should be
- The tape recorded shall be properly secured and held in secure
or official possession.
- The speaker's sound must be easily detectable and any sounds or
noises must not be distorted or blurred.
Other important aspects relating to the tape recordings for their admissibility
are as follows:
- Identification of voice:
As far as the recognition of the recorded sound is concerned,
the correct identification of the recorded voice is a sine qua
non for the usage of the taped sound, such that the time,
location and reliability of the recording must be determined by
the qualified witness and the sounds should be correctly recognized. [xix]
It is not possible to ignore the significance of providing
a transcript of the tape-recorded discussion as it means that the audio had not
been later interfered with. The Supreme Court emphasized on the significance and
the use of those transcripts in the matter of Ziyauddin Burhanuddin Bukhari v.
Brijmohan Ramdas Mehta [xx] and stated the opinion that perhaps the transcript
may be used to demonstrate what the transcriptionist had found recorded there at
the time of translation, and the proof of the transcript creators is definitely
corroborating evidence since it confirms what all the tape record consisted.
Apex Court also made it clear that under section 159 of the Evidence Act, these
transcripts can be used by a witness to renew his knowledge and that their
details can be registered by direct oral evidence in the format provided
under section 160 of the Evidence Act.
The material and authenticity of tape recordings: Res Gestae or Hearsay
In some of the judgments on unlawfully collected evidence, the two principles of
material and authenticity of the recordings have inevitably been mistaken. The
judgment in Magraj Patodia v. R.K.Birla
[xxi] is an exemplary case in point.
court noted that:
“But the fact that a record was produced through unethical or even
illegal means is not a barrier to its validity if it is appropriate and
authentic. However the conditions in which it appeared to be presented in court
must be kept in mind when reviewing the evidence provided as to its
Authenticity is believed to have more to do with permissibility and material has
much to do with appreciation. But the topic of value and competence has not been
discussed at all in this situation. Instead, what has been essentially claimed
is that evidence of authenticity should be used to render the proof admissible,
and the rules of permissibility must assess the evidence of authenticity. There
are contradictory declarations.
If the court plays a recording, it is done in order to test both the
authenticity and the material. The material is checked at until the court is
pleased with the reasonableness of the tape. This appears to be contradictory to
the concepts of hearsay, since the point most commonly made when proof of
hearsay is raised is that this has not been used for the validity of its
This consideration is of utmost importance because the pitch of the voice in the
recording can suggest two things to the court:
- The authenticity, by listening and identifying the
- The motive behind the sounds that could lead to an
inference and establishment of malafide intention for the offence.[xxii]
Another highly relevant differentiation to be established with regard to tape
records is the question of reliability and competency. The Supreme Court
discussed this issue in N Sri Rama Reddy v. V V Giri
.[xxiii] The Constitution
Bench claimed that the technique used to document conversations will make a
significant difference to the importance or value attached to that testimony,
and not to the competence or validity.
The tape-recorded testimony in this
lawsuit has been used to cross-examine a witness. When the tribunal clearly
ruled that the tape could be used for the reasons of both substantiation and
contradiction, the little residual doubt over whether it can be used to refute
the witness was settled. The court followed a previous decision that had the
same impact.[xxiv]" Although this problem is not yet entirely settled, as the
Apex Court has confirmed in a subsequent judgment that a tape can only be
corroborating evidence and not sufficient proof in the lack of any other proof
of the interaction."[xxv]
In the case of R.M Malkani v State of Maharashtra
[xxvi], the apex court stated
“Discussion captured on tape is permissible if the conversation
is pertinent on the matters at issue. The identity of the sound and the
interpretation of the sound are important by the confirmation of the accuracy of
the conversation and by removing the risk of destroying the tape record. The
relevant fact is a contemporary tape recording of a specific discussion and is
permissible under S.8. It's about Res Gestae. It is also similar to a picture of
a relevant event that is significant. Thus the discussion is a relevant fact and
is permissible under S.7”
Furthermore, the court also stated that “If a court allows the recording of a
tape to be listened over it operates on real proof if the inflection of the
terms is regarded as relevant and true. The idea that recorded communication on
tape can be modified is also to be taken into account by the court when
acknowledging it in testimony.”[xxvii]
The two questions that need to be addressed with this issue are:
- What is the position of documenting the tape as real
evidence, as compared to documentary evidence?
- What is the result of discussing the authenticity of
the pitch on the recording of the tape?
Section 91 of the Indian Evidence Act gives sacredness to documented evidence.
If the tape is accepted as real evidence, it would not enforce the exclusionary
rule of documented evidence. In addition, the hearsay principle, if it is not
oral or written proof, is rather circumvented. In addition, if the tape, is to
be valued for the pitch, the material authenticity impasse would first have to
be addressed. As real facts, rather than as a document, it may be simpler to
accept it. In this case, the trick is that it has to classify as res gestae to
be accepted as real evidence.
Yusufalli Ismail Nagree v. State of Maharashtra[xxviii] appears to determine the
Indian stance on recorded evidence on tape. This lawsuit related to the
corroborating evidence of oral evidence by a tape record. This was followed by
an approval of the recording procedure[xxix] and is very close to the position
taken by certain common law justices.[xxx] Clearly, this would suggest that
recorded conversations should be used for their corroborating evidence value
This was not, although the only explanation provided by the courts. Tape
recordings for their probative, instead of corroborative, purpose also have been
rendered admissible. Another critical statement made in the above situation is
as follows: "If a statement is relevant, it is also valid and admissible to make
an accurate tape recording of the statement"
The theory of hearsay however is, largely unexplained for. It is significant to
mention that between an individual who heard the discussion and a tape recording
of the same discussion, the amount of proof stays the same. The proof provided
by such an individual is obviously hearsay. It has to be omitted, hence. If that
is the case, the tape can also not be permissible. It can be admitted only when
an exception to the rule of hearsay is created, as was provided for dying
declarations and res gestae issues.
The only concern shown by the judiciary in
the admission of proof in the manner of tape recordings was the safeguards that
have been put as controls on the probative quality of the recordings. The
metrics with which the value is determined typically take the form of a
confirmation of the time, position and precision of the recording, until it is
adduced as proof. A reliable witness must confirm all these attributes and the
sounds must be correctly identified.[xxxi]
The Apex Court in Yusufalli acknowledged that the High Court of Bombay
mentioned that the proof provided in the format of a tape-recorded discussion
was a contemporary conversation between the plaintiff and the individual to whom
the bribe was proposed. Under S.8 of the Indian Evidence Act, it was then made
permissible as res gestae. The rationale given is as follows: if the proof is
substantiated as res gestae, it is an exemption to law of hearsay.
If it is so,
as far the conversation continues, or related events, such as planning for the
discussion (that was in fact a police trap) would refer - not to a dialogue
recording on tape. It is because the recording is just a reflection of the
discussion - since this recording alone did not influence the discussion during
which the bribe was given, it would not count as a contemporary case there
under res gestae.
At the very same period, in Yusufalli the Court claimed that it did not
accept the police practice of tapping telephone wires and establishing concealed
devices for tape recording objective. In the majority of cases, this does not
appear to be compatible with the ready acceptance of proof collected by these
methods and techniques. The only possible conclusion is that the court just
doesn't want heavy use of these practices. However there appears to be no
rationale offered by the courts for such a suggestion, because the proof has
nevertheless been accepted, and there is no sign that the judiciary will not
continue to do so.
Laws Governing the evidence of Tape Recordings:
The legislation most commonly applied to such situations is the Indian Telegraph
Act enacted back in 1885, in the lack of a clear law regulating the problem. The
act of destroying or tampering with a telegraph[xxxii] is criminalized by
section 25 of the Telegraph Act. The crime involves the act of interfering with
a telegraph or the service of a telegraph in order to obtain or become
acquainted with the details of any letter.
The pioneering judgment on Section 25
of the Telegraph Act is one made back in 1972 by the Apex Court of India, in
which the plaintiff was sentenced of unethical practices by the lower courts in
cases of proof which included a registered phone conversation[xxxiii]. "The
Information Technology Act, 2000 ("the IT Act") is another legislation that
could be applicable to the present debate. The validity of this law to the
particular case under consideration seems however, to be very constrained.
Section 65A of IEA[xxxiv] specifies that in complying with the requirements of
Section 65B of the Evidence Act, the details of electronic documents can be
confirmed. Section 65B, in particular, sets down the evidentiary criteria for
digital proof. The Apex Court of India has held that the certification specified
under Section 65B(4) is compulsory in order for electronic data (which include
tape recording) to be admissible.[xxxv]
Hence as far as a certification
complying with the criteria of Section 65B(4) is submitted with a court,
tape recording is permissible. Ensuring the authenticity of the data and
computer device is the whole concept behind credential; the method of generating
the performance of the electronic record, the identification and the specifics
of the system used (including the original device). The court requires the
certification in order to ensure the credibility of the data and the integrity
of the data in order to rely on it.[xxxvi]
The Indian Apex court has ruled, in the case of telephone recordings[xxxvii],
that even if a document or tape recording is unlawfully extracted, it would
still be permissible as proof, given that it fulfils certain standards of
authenticity and significance. Another supreme court's decision subsequently
crystallized the aforementioned requirements with regard to the validity of
voice recordings.[xxxviii] While this was a judgment rendered by a government
official in the form of recording recorded on tape, this is still an expert on
the actual conditions whereby a tape recording may be accepted into evidence,
the conditions for which have been discussed above.
Taking Voice samples is not a violation of Fundamental rights:
The established rule was that taking audio samples is not in Breach of Art.20(3)
of the Indian constitution. The accused would not be secured in order to stop
providing voice samples. In Rakesh Bisht v Central Bureau of
[xxxix], the court concluded that it was not in breach of the
requirements of Article 20(3) of the Constitution of India, 1950, to loan voice
samples for the restricted reason of recognition in order to evaluate the same
with the tape recorded telephone communication. The learned Justice depended on
the Apex court judgment in the matter of the State of Bombay v. Kathi Kalu
[xl], and also the judgment of the High Court of Bombay in the matter
of CBI v. Abdul Karim Ladsab Telgi
[xli] for this proposition. In the light of
these judgments, the learned Special Judge ordered the appeal to be transferred
on account of the CBI and instructed the Jail Supervisor to take the audio
samples of the accused.
A three-judge bench, headed by Ranjan Gogoi, said it was not the infringement of
his fundamental privacy rights and self-incrimination to guide a person to part
with his audio sample to the police. The judgement stated that the basic privacy
rights cannot be considered absolute and must be bowed down to the convincing
public interest". Article 20(3) of the Constitution requires that no accused
individual of any crime is obliged to be a witness toward oneself.' In attempt
to see whether they replicated and were from the same individual, CJI
rationalized that an audio sample was provided for comparing with other sounds.
On its own, an audio specimen is not inculpatory information.
Prabeen Kumar vs The State Of Bihar
[xlii] (18 July 2017)
Facts: As a CBI inspector posted in Patna, the appellant Prabeen Kumar was
charged with investigating the accusation that H.N. was attributed to him.
Singh, a UCO Bank Branch Manager. Upon receipt of the complaint, instead of
inquiring into the matter, Prabeen Kumar approached Singh over the telephone and
addressed himself to another discloser that he was entrusted with an
investigation against him relating to the advancement of the loan in an unlawful
manner and thus instructed him to negotiate for proper resolution.
anxious of a CBI official's strange behavior, he grew skeptical as someone else
could be impersonated and so he took a tape recorder, audio cassette to document
the accused's speech and visited Prabeen with all those devices. It was also
revealed that Prabeen Kumar requested Rs. 3 Lacs to report in his favor during
the discussion, which was eventually settled at Rs. 2 Lacs.
Due to the reason
that H.N. Singh was not willing to pay Rs. 2 Lacs as bribery and further
contacted the head office of the New Delhi CBI office on the phone and revealed
the entire event at the request of Prabeen Kumar as well as the order for bribe.
After providing the details, H.N. In the midst of independent witnesses, Singh
dialed Prabeen and the interaction that was captured by VPS Mann took place in
order to detain Prabeen Kumar red handed while taking bribe and to allow the
same, zero FIR was reported.
Court’s Ruling: Having shed light on various landmark judgments it is evident
that a valuable comment made by an individual and captured on tape could be used
not only to substantiate the evidence offered by the witness in the Court, but
also to refute the evidence submitted before the Court, and to also check the
witness's validity and to indict his impartiality. Aside from being used for
corroborating evidence, the testimony is permissible under Section 146,
Exception 2 to Section 153 and Section 155 of the Evidence Act. Moreover the
facts and circumstances of the current context do not constitute a breach of
Section 25 of the Telegraph Act. There is a provision for the principle that it
is permissible even though proof is unlawfully acquired.
There is no ground to argue that the plaintiff was induced to self-incriminate.
No lawsuit was brought against plaintiff at the point of the discussion. He was
not being coerced to speak or to admit. Article 21 was cited by claiming that
the protection of the interaction between the plaintiff and the appellant was
violated. By tapping the communication, the telephone conversation of an
innocent person would be secured by the judiciary from malicious or high-handed
Security is not for the accused person from the police's attempts
to legitimize the law and discourage the misconduct of public officials. It must
not be recognized that protections for the safety of civilians by enabling the
authorities to continue by unauthorized or illegitimate means would be accepted
by the judiciary. There is no illegal or improper means of making a tape
recording of the discussion in the current context.
Not always has the interaction between law and technology been a simple one.
However if it was considered appropriate, the rule was still in favour of
technology. From period to period, the legal courts' question about the
usefulness and permissibility of tape recorded conversation found its expression
in different pronouncements.
Tape-recorded interactions as shreds of information
have arisen as one of the productive and effective changes that have occurred in
today's environment, with the rise of digital. In trying to adapt with the rise
in atrocities being committed nowadays, it is important to keep up-to-date with
the newly advanced techniques and to make every effort to consider information
that is significant and that might have been gathered by the use of such
innovation. There is no doubt as to the fact that certain types of proof are
more likely to be tampered with.
The situation can be adapted to the current technical situation and the need of
the hour is to limit violence, by allowing tape recordings to be used. But
this, permission, in the context of suitable legislation, has to be clear.
A choice might be to add further variations to the law of hearsay in the
Indian Evidence Act itself that would suit the circumstance within the
scenario, and system of law. The explanation given is that innovation should be
used wisely to arrest criminality, rather than fully shut it out, rendering it
far more challenging for law enforcement. There must be some sort of give and
receive and it is very difficult to have a perfect situation.
- Law of Evidence: An Overview On Different kinds of Evidence and
Witnesses under the Indian Evidence Act, IndiaLegallive,https://www.indialegallive.com/legal/law-of-evidence-an-overview-on-different-kinds-of-evidence-and-witnesses-under-the-indian-evidence-act/ last
accessed on 3rd November 2020.
[ii] Section 3, Indian Evidence Act, 1872
- Vivek Dubey, Admissibility of electronic evidence: an Indian
perspective, MedCrave, < https://medcraveonline.com/FRCIJ/admissibility-of-electronic-evidence-an-indian-perspective.html>
last accessed on 4th November 2020
- Rahul Gupta, The Evolution of Admissibility of Tape Recorded Statements As
LegalServicesIndia, http://www.legalserviceindia.com/legal/article-667-the-evolution-of-admissibility-of-tape-recorded-statements-as-evidence.html last
accessed on 4th November, 2020
- Some examples are the Wiretapping and Eavesdropping Act, sections
16-15-101 through 16- 15-104, 6 C.R.S. (1998), and the Criminal Eavesdropping Statute,
sections 18-9-303 and 18-9- 304, 6 C.R.S. (1998), which are both laws in the
State of Colorado, USA.
- It matters not how you get it if you steal it even, it would be admissible
in evidence." R. v. Leatham, (1861) 8 Cox. C.C. 198, cited from R. M. Malkani v.
State of Maharashtra, AIR 1973 SC 157 at 163
- Sir John Woodroffe and Syed Amir Ali, Law of Evidence, 3805 (1996)
- Order XXXIX, R.6, Supreme Court Rules
- David H. Sheldon, Evidence: Cases and Materials, 333 (1996)
- AIR 1956 Punj 173
- The record of a conversation appearing on a tape recorder can by no
stretch of meaning [be considered] as a statement "in writing or reduced into
writing". Per Bhandari, C.J. in Rup Chand v. Mahabir Parshad, AIR 1956 Punj 173.
The reasoning given was that it was not included within S.3(65) of the General
Clauses Act, 1897
- In S. Partap Singh v. State of Punjab, AIR 1964 SC 72, the Court ruled
that the possibility that a piece of evidence could be tampered with, was not by
itself a ground for the court to reject the evidence as inadmissible. This shows
that the standard of proof to show that the tape has been tampered with is
considerably higher than that advocated in Malkani
- Document" means any matter expressed or described upon any substance, by
means of letters, figures, or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording that
matter. - S.3, Indian Evidence Act, 1872.
- AIR 1964 SC 72
- AIR 1986 SC 3
- Vidhan Maheshwari, Tape Recorded Conversation - Admissibility, Nature
and Value, http://www.legalservicesindia.com/articles/trc1.htm last accessed on
5th November 2020
- AIR 1968 SC 147
- AIR 1975 SC 1788
- AIR 1971 SC 1297.
- Jagir Singh v. Jasdev Singh, AIR 1975 SC 1627. In this case, the
argument advanced by the prosecution was that the accused tried to show
false surprise that his signature was on a document which would incriminate
him of offences under S. 123(3), S.1 23(3A) and S.127 A of the
Representation of the People Act. But the tape-recorded evidence of a
telephonic conversation was rejected, because the other participant in the
conversation was not examined as a witness. This shows that the courts have
been more conducive to admitting tape-recorded conversations as
corroborative evidence than primary evidence.
- AIR 1971 SC 1162
- Manindra Nath v. Biswanath, (1963) 67 Cal WN 191
- Mahabir Prasad Verma v. Dr Surinder Kaur, AIR 1982 SC 1043
- AIR 1973 SC 157
- AIR 1973 SC 157
- AIR 1968 SC 147
- The tape record of the dialogue corroborates his testimony. The process
of the 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." Per Hidayatullah, J. in Yusufalli Ismail Nagree v. State
of Maharashtra, AIR 1968 SC 147
- The photograph was admissible because it is only a visible
interpretation of the image or impression made upon the minds of the
witnesses by the sight of the person or the object it represents; and it is
therefore in reality only another species of the evidence which persons give
of identity when they speak merely from memory" Per Willes, J. in R. v. Tolson, [1864 4 F. and F. 103, cited
from, Phipson on Evidence. The same approach has been adopted in relation to
tape recordings, as held in R. v. Ali and Hussain,  1 QB 688 (CCA).
- AIR 1968 SC 147
- Section 25, Indian Telegraph Act, 1885
- R. M. Malkani v. State of Maharashtra, (1973) 1 SCC 471
- S 65, Indian evidence act, 1872
- Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473
- Bharat Chugh, Phone-tapping and Recording of a Phone conversation: Is it
legal and admissible? ,
BharatChugh.in, https://bharatchugh.in/2020/07/05/phone-tapping-and-recording-of-a-phone-conversation-by-a-private-party-issues-relating-to-legality-and-admissibility/ last
accessed on 5th November 2020
- R. M. Malkani v. State of Maharashtra, (1973) 1 SCC 471
- Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611
- Rakesh Bisht v Central Bureau of Investigation ,2007 Indlaw DEL 1811,
- State of Bombay v Kathi Kalu Oghad and Others, 1961Indlaw SC 144, (1961)
- Central Bureau of Investigation, New Delhi v Abdul Karim Ladsab Telgi and
Others, 2004 Indlaw MUM 319, (2004)
- Prabeen Kumar vs The State Of Bihar , Criminal Appeal (SJ) No.181 of 2015