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Rup Chand, v. Shri Mahabir Pershad, .
Factual and Procedural Background
The plaintiff sued for recovery of a sum alleged to be due under a promissory note ("pronote"). The defendant pleaded that the original pronote, containing certain endorsements, had been destroyed and replaced by another pronote bearing the same date. To substantiate this plea the defendant intended to rely on the oral testimony of A. L. Sethi, a broker of Delhi; when Sethi declined to support the defendant, the defendant sought to confront Sethi with a conversation between them concerning the destruction of the earlier pronote that had been recorded on a tape-recorder. The plaintiff objected to the admissibility of the tape-recorded evidence. The trial Court overruled the objection. The plaintiff brought the matter to this Court by way of revision of the trial Court's order.
Legal Issues Presented
- Whether the record of a conversation appearing on a tape-recorder can be admitted in evidence under the provisions of the Indian Evidence Act.
Arguments of the Parties
Defendant's Arguments
- The defendant sought to use a tape-recorded conversation between himself and the witness A. L. Sethi to confront and impeach the witness on the issue of destruction/replacement of the original pronote.
- The defendant relied on the tape as a faithful recording of a prior inconsistent statement by the witness (used to attack the witness's credit).
Plaintiff's Arguments
- The plaintiff objected to the admissibility of evidence recorded on a tape-recorder.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Andrews v. United States, 105 Am. LR 322 (A) | Telephone conversation evidence is admissible provided the identity of the speaker is satisfactorily established. | Used to support the general proposition that electro-telephonic communications may be admissible if identity/authentication is established, analogous to tape recordings. |
| Boyne City, G. and A. R. Co. v. Anderson, 117 Am SR 642 | Phonographic reproduction of sound is admissible if the instrument is shown to be a substantially accurate and trustworthy reproducer of the sounds made. | Relied upon to show that phonographic/mechanical reproductions (e.g., tape-recordings) can be admissible and may provide stronger proof than human testimony when the instrument's accuracy is established. |
| Brindley v. State, 193 Ala. 43 | Testimony as to conversation heard through a "detectophone" or evidence obtained through a dictograph is admissible; the State may produce the device and have the operator explain and demonstrate it. | Cited to support admissibility of mechanically obtained audio evidence and the practice of producing the device/operator for authentication and explanation. |
| Annotated Cases 1916 E 177 | Referenced in conjunction with authority accepting dictograph/detectophone evidence (annotated authority supporting admissibility of such mechanical reproductions). | Used as additional supporting authority for the admissibility of mechanical audio reproductions. |
| Buxton v. Cumming, (1927) 71 Sol. Jo. 232 | Reported observation by Swift J. that he saw no reason why a dictaphone record made by a witness should not be put in evidence. | Adduced as the only English case mentioned that points toward the permissibility of admitting dictaphone records; used as supportive foreign authority. |
Court's Reasoning and Analysis
The Court began by identifying the statutory provisions relevant to the question: Sections 145 and 155(3) of the Indian Evidence Act and Section 3(65) of the General Clauses Act.
Regarding Section 145 (which permits cross-examination about previous statements "in writing or reduced into writing"), the Court concluded that a tape-recorded conversation cannot, by any stretch, be regarded as a statement "in writing or reduced into writing." The Court relied on Section 3(65) of the General Clauses Act, which states that "writing" includes modes that represent or reproduce words in a visible form (printing, photography, etc.), and observed that the record on a tape-recorder does not fall within that definition because it is not a visible form reproducible by those means. Thus the tape does not qualify under Section 145's concept of "writing."
Turning to Section 155(3) (which allows impeachment of a witness's credit by proof of former inconsistent statements), the Court acknowledged that a defendant may prove that a witness made a prior inconsistent statement by testifying that the statement was in fact made to him. The discrete question was whether a record of that prior statement, prepared by a scientific instrument (a tape-recorder), could itself be produced in evidence.
The Court answered this in the affirmative. It reasoned that legal evidence includes oral testimony and documents, but that courts may also receive instruments or devices and exhibits (maps, charts, photographs, X-rays) when properly authenticated. The Court emphasized that proof addressed directly to the senses (including mechanical reproductions) can be highly persuasive.
To support the view that mechanically reproduced audio may be admissible, the Court relied on a number of foreign authorities showing that telephone, phonograph and dictograph recordings have been received where identity and the reliability/accuracy of the reproducing instrument were established. The Court quoted an American decision observing that phonograph reproduction may be an even stronger form of evidence than telephone testimony because it supplies a mechanical reproduction of the sounds themselves. The Court also cited authority indicating that when devices such as dictographs are used, it is appropriate for the State (or party relying on the device) to produce the instrument and have the operator explain and demonstrate it.
On this basis the Court concluded that the trial Court was justified in overruling the plaintiff's objection to admissibility of the tape-recorded conversation.
Holding and Implications
TRIAL COURT ORDER UPHELD; PETITION DISMISSED WITH COSTS.
Consequences: The Court upheld the trial Court's order allowing the tape-recorded conversation to be used in evidence and dismissed the plaintiff's revision petition with costs. The opinion confines itself to the matter before the Court and explains the statutory and authorities-based basis for admitting mechanically recorded audio when appropriately authenticated; it does not elaborate further on any broader doctrine beyond the reasoning applied to the present facts.
1. This petition raises a question which is as novel as it is new, namely, whether the record of a conversation which has appeared on a tape-recorder can be admitted under the provisions of the Indian Evidence Act.
2. In answer to a suit for the recovery of a certain sum of money on the basis of a pronote, the defendant put forward the plea that the original pronote containing certain endorsements had been destoryed and been replaced by another pronote bearing the same date.
He endeavoured to substantiate this plea by the oral testimony of one A. L. Sethi, a broker of Delhi; but the latter declined to support him and the defendant accordingly requested the Court to permit him to confront the witness with a conversation which had taken place between himself and Sethi in regard to the destruction of the earlier pronote and which had been faithfully recorded on a tape-recorder.
The plaintiff objected to the admissibility of evidence by tape-recorder but the trial Court overruled the objection and the plaintiff has come to this Court in revision.
3. The only two sections which appear to have any bearing on the matter in controversy between the parties are Sections 145 and 155(3) Indian Evidence Act. Section 145 provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters 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 before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
The record of a conversation appearing on a tape-recorder can by no stretch of meaning be regarded as a statement "in writing or reduced into writing" for Section 3(65), General Clauses Act declares that 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 and the record which appears on a, tape-recorder cannot fall within the ambit of this definition.
The expression "writing" appearing in Section 145 refers to the tangible object that appeals to the sense of sight and that which is susceptible of being reproduced by printing, lithography photography etc. It is not wide enough to Include a statement appearing on a tape which car. be reproduced through the mechanism of a taperecorder.
4. The other provision on which reliance has been placed is Section 155(3), Evidence Act. This section provides that the credit of a witness may be impeached by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
If the witness in the present case made a statement to the defendant before the commencement of tills case which is at variance with the statement made by him on a later date, there can be no doubt that it can be proved by the defendant going into the witness-box and deposing that the statement was in fact made to him.
The correctness of this proposition is not in dispute. Difficulty has, however, been presented by the question whether a record of that statement as prepared by a scientific instrument can be produced in evidence in Court.
5. The answer is in my opinion clearly in the affirmative. Legal evidence consists of the oral testimony of witnesses and of documents produced in the case, but it is open to a person giving evidence in Court to produce instruments or devices used in the commission of a crime and to exhibit maps, charts, diagrams, models, photographs and X-ray pictures, when properly authenticated, of some fact in issue.
A witness testifying to a murder he has seen with his own eyes may well produce a bloodstained dagger he has snatched from the hands of the assassin and this dagger may speak more eloquently than the witness himself. Proof which is addressed directly to the senses is a most convincing and satisfactory class of proof.
I am aware of no rule of evidence which prevents a defendant who is endeavouring to shake the credit of a witness by proof of former inconsistent statements, 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.
This proposition is fully supported by a number of American decisions in which the admissbility of evidence furnished by devices for electro-telephonic communication has been fully considered. Evidence based on conversations on telephone is admissible provided the identity of the person with whom the witness spoke or the person whom he heard speak is satisfactorily established. -- 'Andrews v. United States', 105 Am. LR 322 (A).
The phonographic reproduction of sound is generally admissible in evidence upon the trial by showing the manner and the circumstances under which it was secured. A person who objected to a rail road company laying its track upon a certain street was permitted to operate a phonograph in presence of the Jury to produce sounds claimed to have been made by the operation of trains in proximity to his hotel.
The Supreme Court of Michigan held that there was no error in the admission of this testimony particularly as it was established that the instrument was a substantially accurate and trustworthy reproducer of sounds actually made. In the course of his order Blair J. observed as follows:
"Communications conducted through the medium of the telephone are held to be admissible, at least in cases where there is testimony that the voice was recognized ..... The ground for receiving the testimony of the phonograph would seem to be stronger, since in its case there is not only proof by the human witness of the making of the sounds to be reproduced, but a reproduction by the mechanical witness of the sounds themselves". (Boyne City, G. and A. R. Co. and v. Anderson', 117 Am SR 642 (B).) Similarly, testimony as to a conversation heard by the witness through a "detectophone" is admissible; and where evidence obtained through a dictograph is received it is open to the State to produce the dictograph in evidence and to have the operator thereof explain the instrument and demonstrate the principles on which it operates. -- 'Brlndley v. State', 193 Ala .43 (O); Annotated Cases 1916 E 177 (D).
The only English case to which my attention has been invited is that of 'Buxton v. Cumming, (1927) 71 Sol. Jo. 232 (E) in which Swift J. is reported to have raised the question whether a dictaphone record has ever been accepted in evidence by the Courts and upon counsel replying that he did not think so said that he saw no reason why such a record as the one which the witness sate he had made should not be put in evidence.
6. For these reasons I entertain no doubt in my mind that the trial Court was justified in overruling the plaintiff's objection to the admissibility of evidence furnished by the tape-recorder.
The order of the trial Court must be upheld and the petition dismissed with costs. Ordered accordingly.
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