The tape-records of speeches were “documents”, as defined by Section 3 of the Evidence Act

KEYWORD:- Tape recorded speech – Evidence-

Indian Law Encyclopedia

  • The evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.

In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors., (1976) 2 SCC 17, this Court made following observations:

We think that the High Court was quite right in holding that the tape-records of speeches were “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 know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so 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.

(emphasis supplied)

In the case of Ram Singh and Ors. v. C ol. Ram Singh, (1985) Suppl. SCC 611, again this Court stated some of the conditions necessary for admissibility of tape recorded statements, 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 strict proof to determine whether or not it was really the voice of the speaker.

(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence — direct or circumstantial.

(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

In Ram Singh’s case (supra), this Court also notices with approval the observations made by the Court of, (1985) Suppl. SCC 611 Appeal in England in the case of R. v. Maqsud Ali (1965) 2 AER 464. In the aforesaid case, Marshall, J. observed thus:

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.

To the same effect is the judgment in the case of R. v. Robson (1972) 2 AER 699, which has also been approved by this Court in Ram Singh’s case (supra). In this judgment, Shaw, J. delivering the judgment of the Central Criminal Court observed as follows:

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.

  • Chapter 14 of Archbold Criminal Pleading, Evidence and Practice discuss the law in England with regard to Evidence of Identification. Section 1 of this Chapter deals with Visual Identification and Section II relates to Voice Identification. Here again, it is emphasised that voice identification is more difficult than visual identification. Therefore, the precautions to be observed should be even more stringent than the precautions which ought to be taken in relation to visual identification. Speaking of lay listeners (including police officers), it enumerates the factors which would be relevant to judge the ability of such lay listener to correctly identify the voices. These factors include:

(a) the quality of the recording of the disputed voice,

(b) the gap in time between the listener hearing the known voice and his attempt to recognize the disputed voice,

(c) the ability of the individual to identify voices in general (research showing that this varies from person to person), 8 2010 edition at pg: 1590-91

(d) the nature and duration of the speech which is sought to be identified and

(e) the familiarity of the listener with the known voice; and even a confident recognition of a familiar voice by a way listener may nevertheless be wrong.

The Court of Appeal in England in R. v. Chenia (2003) 2 Cr.App.R. 6 CA and R. v. Flynn and St. John (2008) 2 Cr.App.R. 20 CA, has reiterated the minimum safeguards which are required to be observed before a Court can place any reliance on the voice identification evidence, as follows:

(a) the voice recognition exercise should be carried out by someone other than the officer investigating the offence;

(b) proper records should be kept of the amount of time spent in contact with the suspect by any officer giving voice recognition evidence, of the date and time spent by any such officer in compiling any transcript of a covert recording, and of any annotations on a transcript made by a listening officer as to his views as to the identify of a speaker; and

(c) any officer attempting a voice recognition exercise should not be provided with a transcript bearing the annotations of any other officer.

In America, similar safeguards have been evolved through a series of judgments of different Courts. The 9 (2003) 2 Cr.App.R. 6 CA 10 (2008) 2 Cr.APP.R.20,CA principles evolved have been summed up in American Jurisprudence 2d (Vol. 29) in regard to the admissibility of tape recorded statements, which are stated as under:

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.

… However, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said.

 This apart, in the case of Mahabir Prasad Verma v. Dr. Surinder Kaur, (1982) 2 SCC 258, this Court has laid down that tape recorded evidence can only be used as corroboration evidence in paragraph 22, it is observed as follows:

Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the 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. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the tape-recorded conversation could be no proper evidence.