27 April 1970
Supreme Court


Case number: Election Petition (Civil) 4 of 1969






DATE OF JUDGMENT: 27/04/1970


CITATION:  1971 AIR 1162            1971 SCR  (1) 399  1970 SCC  (2) 340  CITATOR INFO :  E          1973 SC 157  (21,22)  R          1975 SC1788  (21)  RF         1986 SC   3  (29,146,174,218)

ACT: Evidence Act (1 of 1872), ss. 146 (1) 153, Exception (2) and 153    (3)-Tape-recorded   statement   of    witness-Whether admissible to contradict his Evidence in Court.

HEADNOTE: The  petitioners  filed  an  election  petition  under   the Presidential  and Vice Presidential Election Act,  1952  and according  to  them  undue influence was  exercised  by  the publication   and,   distribution   of   certain   pamphlets containing  scurrilous attacks on the defeated  presidential candidate.   The  name of persons who were alleged  to  have distributed the pamphlets were mentioned in the  particulars supplied in the election petition.  When one of them was  in the witness-box as a witness for the returned candidate,  he denied  in  his chief-examination that  he  distributed  the pamphlets.    When  it  was  suggested  to  him  in   cross- examination  that  he  attempted  to  dissuade  one  of  the petitioners  from filing the election petition as  otherwise serious  consequences would follow, the witness  denied  the suggestion.   A  tape  recorded  conversation  between   the witness  and  the  petitioners was sought  to  be  given  in evidence by playing the tape-record to impeach the credit of the witness. On the question of the admissibility of the evidence, HELD  :  (1)  A  previous statement made  by  a  person  and recorded  on tape, can be used not only to  corroborate  the evidence  given  by  the  witness  in  court  but  also   to contradict  his evidence given before the Court, as well  as to test the veracity of the witness and also to impeach  his impartiality.  Apart from being used for corroboration,  the evidence is admissible in respect of the other three matters under  ss. 146(1), 153, Exception (2) and s. 155(3)  of  the Evidence Act.  If a previous statement made by a person  can



be  used to corroborate his evidence given before court,  on principle,  there is no reason why such  previous  statement cannot ’be used to contradict under s. 153, Exception 2  and also  for the other purposes under ss. 146(1)  and,  155(3). [410 B-C, D-E] S.Pratap  Singh  v. State of Punjab, [1964]  4  S.C.R.  733, Yusuffalli v, Maharashtra State, [1967] 3 S.C.R. 720 and  R. v. Maqsud Ali [1965] 2 All.  E. R. 464, referred to. Rup  Chand  v. Mahabir Parshad, A.I.R.,1956  Punj.  173  and Manindra Nath v. Biswanath, 67 C.W.N. 191, approved. (2)  The expression ’which is liable to be contradicted’  in s.  155(3) does not mean ’which is relevant to the  issue’. The observation contra in Khadijah Khanum v. Abdool  Kurreem Sheraji, 1890 I.L.R. 17 Cal. 344 is too broadly stated.  But even  if  it mean ’relevant to the issue’  the  taperecorded statement  in  the present case, is relevant  to  the  issue before  this Court, namely, ’whether the respondent, or  any person   with   his  connivance,  printed,   published   and distributed the pamphlets." [411 B-C, E] 400

JUDGMENT: ORIGINAL  JURISDICTION      Election Petitions Nos. 4 and  5 of 1969. Election  Petitions  in Admissibility in Evidence  of  Tape- Recorded Conversation.  K.  C. Sharma, K. I. Rathee, M. S. Gupta, C.  L.  Lakhanpal and  S.  K. Dhingra, for the petitioners (in E.P. No.  4  of 1969). S.   C.  Malik,  M.  S.  Gupta and K.  L.  Rathee,  for  the petitioners (in E.P. No. 5 of 1969). C.   K. Daphtary, D. Narasaraju, S. Mohan Kumaramangalam, S. T. Desai, S. K. Dholakia, J. B. Dadachanji, Ravinder  Narain and   O.  C.  Mathur,  for  the  respondent  (in  both   the petitions). Jagadish Swarup, Solicitor-General, L. M. Singhvi and K.  P. K. Nayer, for the AttorneY-General, Election Commission  and Returning Officer, Presidential Election. The Order of the Court was delivered by Vaidialingam,  J. On April 1, 1970 Shri Jagat  Narain  (R.W. 25)  was  being  cross-examined  by  the  counsel  for   the petitioners in Election Petition No. 5 of 1969, when certain suggestions  were’ put to him that he had tried to  dissuade the  first petitioner in the said Election  Petition,  viz., Shri  Abdul Ghani bhar from filing the election petition  on political reasons and when the witness denied not only those suggestions  but also certain other suggestions put to  him, counsel for the petitioner represented that Shri Abdul Ghani Dar had a tape recording of the talk that took place between him and the witness and he sought permission from the  Court to  play the same for being put to the  witness.   Objection was  raised by Mr. C. K. Daphtary, learned counsel  for  the respondent,  that  the tape recorded  conversation  was  not admissible in evidence.  In view of this objection,  counsel on  both side were heard regarding the admissibility of  the tape  recorded  conversation, on April 2,  1970  and,  after hearing  arguments  on  both sides, we  then  expressed  the opinion  that  the  tape  recorded  conversation  could   be received  in  evidence and that we would  give  our  reasons later.   The further cross-examination and reexamination  of the  witness  proceeded  in respect  of  the  tape  recorded conversation  which was played in Court in the  presence  of the witness.



We  now  proceed to state our reasons for holding  that  the tape  recorded conversation could be admitted  in  evidence. But  we  make  it clear that we have  dealt  with  only  the question regarding the admissibility in evidence of the tape recorded  conversation, which is distinct and separate  from the weight to be 401 given to such evidence which question will be dealt with  in the main judgment to be delivered in the election petitions. Before  we  deal with the question of admissibility  of  the tape recorded conversation, it is necessary to state that in Election Petition No. 5 of 1969 the, petitioners allege that offences  of  undue  influence  at  the  election  had  been committed  by the returned candidate and by  his  supporters with the connivance of the returned candidate.  The material facts  relating  to the strict allegations  have  also  been given  in  the  petition in paragraph  13  of  the  election petition.   It  has been alleged that on August 9,  1969  an unsigned  pamphlet  in  cyclostyled form  and  also  printed pamphlet  without  bearing  the name  of  its  publisher  or printer  (marked as Exhibits P-18B and P 37-A  respectively) were published by free distribution among the members of the Electoral  College  for the Presidential Election.   It  has been further alleged that the offence of undue influence was freely  committed at the election by the returned  candidate and  the persons mentioned in the election petition  and  by their  supporters  and workers with the  connivance  of  the returned candidate, by voluntarily interfering and  attempt- ing  to interfere with the, free exercise of  the  electoral rights of the candidates and the various electors  mentioned in the petition.  It is further alleged that with the object of interfering with the free exercise of electoral rights by Sri N. Sanjiva Reddy, a candidate at the election, Sri Jagat Narain  and certain other persons named in the petition  who are  described  as supporters and workers  of  the  returned candidate in general with the consent and connivance of  the returned  candidate published, by free distribution,  pamph- lets in Hindi and English in cyclostyled form as well as  in printed  form  in which very serious allegations  were  made against  Shri Reddy which amounted to undue  influence  upon the persons referred to in the election petition within  the meaning of s. 171 (c) of the Indian Penal Code.  There is  a further  allegation  that these pamphlets  were  distributed from  August  9,  1969  to August 16,  1969  among  all  the electors  of  the  Electoral College  for  the  Presidential election  and they were also distributed during this  period in  the  Central Hall of Parliament by the  various  persons mentioned in the petition, which included Shri Jagat Narain. No doubt the allegations that undue influence in the  manner mentioned was exercised by the respondent or by anybody with his  connivance have been strongly refuted in  the  counter- affidavits filed by the respondent. In  the particulars given by Shri Abdul Ghani Dar,  relating to the distribution of pamphlets in question, he has  stated that  the persons who distributed them between August 9  and August 16, 402 1969  had already been mentioned in the  election  petition. lie  has  further stated in the said particulars  that  Shri Jagat  Narain  was one of the persons  who  distributed  the pamphlets  in the Central Hall of Parliament on  August  11, 1969 to the Members of Parliament whose names have also been given. Issues  have  been  framed whether the  respondent,  or  any person   with   his  connivance,  printed,   published   and



distributed pamphlets and other matters connected therewith. In  chief-examination, Jagat Narain, as R.W. 25, has  stated ,hat  he  has  never seen either of  these  pamphlets  being distributed and that he has seen them only in Court, on  the day  when he was giving evidence, viz., on March  31,  1970. He  has also stated that he never received the pamphlets  at salt.  He has further reiterated that he has not distributed the pamphlet as spoken by some of the witnesses on the  side of  the petitioners and he has further affirmed that he  has never  distributed  the  pamphlets in the  Central  Hall  of Parliament and that he has not seen the pamphlets except  in Court.   In cross-examination, the witness was  asked  about the telephone call that he had made to Abdul Ghani Dar about 6  or  7 days before the filing of  the  election  petition, i.e.,  in the first week or second week of  September  1969; and  suggestions  her  made that the  witness  attempted  to dissuade Abdul Ghani Dar from filling the election  petition on  the ground that serious consequences would  follow  from such  action.   Though the witness admitted that  he  had  a telephone talk with Abdul Ghani Dar, he denied various other suggestions put to him regarding the nature of the talk that took place between him and Abdul Ghani Dar.  It was at  that stage  that the counsel for the election  petitioner  wanted the tape recording of the talk that took place between Abdul Ghani  Dar and the witness to be adduced as evidence on  the ground  that the answers given by the witness in Court  were quite contrary to the nature of the conversation that he had with Abdul Ghani Dar.  Objection was raised to receiving the same as evidence. Mr. Daphtary, learned counsel for the respondent, raised two contentions regarding the admissibility of the tape-recorded conversation  between R.W. 25 and Abdul Ghani Dar:  (1)  The tape-recorded  conversation cannot be admitted  in  evidence for contradicting the evidence of the witness;and (2)  Under S.  155 (3) any former statement_before it could be  put  in evidence to impeach the credit of a witness, the Court  must be satisfied that the previous statement is relevant to  the matter  in issue and the tape recorded conversation, in  his case, has no relevance to the matters which are in issue  in these proceedings.                             403 Mr. Daphtary, learned counsel, did not dispute the  correct- ness of two decisions of this Court to which reference  will be,  made later, wherein the taped records  of  conversation had  been admitted in evidence.  But, according, to him,  in those  cases them tape recorded conversations were  admitted in  evidence to corroborate the evidence given by a  witness before the Court, and not. to contradict his evidence. Both  the grounds of objection raised by Mr. Daphtary  have, been  controverted by Mr. Malik and by Mr. Sharma,  learned- counsel  appearing for the election petitioners in  Election Petitions.   Nos. 5 and 4 of 1969, respectively.   According to  Mr. Malik. whose contentions were substantially  adopted by  Mr.  Sharma,,  issues have  been  framed  whether  undue influence  has  been exercised by the respondent or  by  any other   person  with  his  connivance.   According  to   the petitioners  undue  influence has been’.  exercised  by  the publication  and  distribution  of  the  pamphlets,   making scurrilous  attack  about  the  personal  character  of  Sri Sanjiva  Reddy.  Specific allegations have been made in  the election  petition  that  R.W.  25  is  one  of  those   who distributed the pamphlets in the Central Hall of  Parliament with the connivance of the, respondent.  The witness  denied this  allegation  in  chief-examination  and  when   certain suggestions,  that  the witness attempted to  dissuade  Shri



Abdul  Ghani  Dar from filing his election petition  on  the ground  that serious consequences would follow, were put  to him in cross-examination, witness denied them and, ’in  that context  the tape-recorded conversation between the  witness and  Shri Abdul Ghani Dar assumes importance.  Relying  upon that  tape  recorded conversation, counsel  urged  that  his client  is entitled to test the veracity of the witness  and to  impeach the credit of the witness and satisfy the  Court that  the  evidence  given  by  the  witness  before  us  is inconsistent or contrary to what he had stated on an earlier occasion. In this connection counsel relied upon ss. 146, Exception  2 to  s.  153  and  cl. (3) of s. 155  of  the  Evidence  Act. Section 146 deals with questions lawful in cross-examination and,  in particular, cl. (1) thereof provides for a  witness being  cross-examined  by questions being put to  him  which tend to test his veracity.  Section 153 generally deals with exclusion  of  evidence to contradict answers  to  questions testing  veracity, but Exception 2 states that if a  witness is asked any question tending to impeach As impartiality and answers  it  by  denying the facts  suggested,,  he  may  be contradicted.  Section 155 deals with impeaching the  credit of witness by the various ways dealt with in clauses (1)  to (4).   One of the ways by which the credit of a witness  may be  impeached is dealt with in cl. (3) and that is by  proof of former- 404 statement in consistent with any part of his evidence  which is liable to be contradicted.  Mr. Daphtary pointed out that S.  146  must be read with S. 153.  We  cannot  accept  this contention  in its entirety.  It may be that cl. (3)  of  s. 146  may  have  to be read along with the main  s.  153  but clause  (1) of s. 146 and exception (2) to s. 153 deal  with different aspects.  Under s. 146(1) questions may be put  to a  witness  in cross-examination to test his  veracity  and, under  Exception 2 to s. 153 a witness may  be  contradicted when   he  denies  any  question  tending  to  impeach   his impartiality.  :The  object of the  election  petitioner  to adduce  the  tape-recorded conversation as  evidence  is  to impeach the testimony of the witness that he has never  seen the  pamphlet and that he has never attempted to induce  the election  petitioner  not to file the election  petition  on threat  of serious consequences, and to establish  that  the evidence given in Court is quite contrary to the  statements made  by  him  in the conversation that he  had  with  Abdul Ghani. Dar and which has been recorded on tape. We will now refer to the case law on the subject.  In  Hopes ,and   Another   v.  H.  M.  Advocate(1)   a   tape-recorded conversation  which took place between a complainant  and  a black-mailer was played before the jury and sought to be put in  evidence  by a police ,officer who had listened  to  the conversation as it was transmitted through the  loudspeaker. Objections  were  raised to the admissibility  of  the  said evidence.  The learned trial Judge over-ruled the ,objection as follows :               "New techniques and new devices 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 criticisms can be made, and no doubt  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 of value, not  of               competency,  The  same can be said  of  visual               observation  by  a witness who  says  he  sees               something;  his  evidence  can  be  criticised               because of his sight or because of the sort of               glasses  he  is wearing, and so  on,  but  all               these matters are matters of value and not  of               competency. (1) (1960) Scots Law Times 264. 405 Accordingly, the learned Judge allowed the police officer to give  evidence  as to what he heard on  the  tape  recorder, which was played before the Jury. On  appeal to the High Court of Justiciary, it is seen  that no objection appears to have been taken to the competency of the   evidence  furnished  by  the  tape-recorder  but   the admissibility  of the evidence of the police  officer  based upon  As  hearing  of  the  tape-recorded  conversation  was objected  to.   This objection was over-ruled  by  the  High Court  of  Judiciary stating that, it is competent  for  the police  officer  to give evidence of conversation  which  he heard with the help of hearing aid or, as in the case before them,  when  the conversation is transmitted to him  over  a distance by wireless and that there may be criticism of  the quality of his evidence and not about the competency of  the evidence  of what he has heard.  The Court further  observed at p. 267               "The Inspector’s evidence of the  conversation               was  as much primary evidence as the  evidence               from the replaying of the tape recorder.  Each                             received   it  at  the  same  time,  t he   one               recording  it  in the human memory  the  other               upon a piece of tape." From the above decision it is apparent that the tape  itself is  primary  and direct evidence admissible as to  what  has been said and picked up by the recorder. In R. v. Mills(1) a conversation which had been recorded  on tape  between  two  of the persons was  heard  by  a  police officer who gave evidence that he has himself remembered the various remarks which passed between those two persons which could  be corroborated by the conversation recorded  on  the tape.   But the tape recording itself was not introduced  in evidence  nor  was  there any production of  the  record  by consent  before the Jury.  They referred to the decision  of the  High Court of Judiciary in Hopes Case(-) and held  that according   to   the  said  decision   the   tape   recorded conversation was admissible as direct evidence.  Though  the discussion  in  the  judgment  shows  that  a  tape-recorded conversation is admissible in evidence, ultimately the Court left open the question stating :               "The  court  has  not  debated,  and  is   not               deciding,  any broad and general  question  of               principle    whether   evidentiary    material               obtained by the use of a tape recorder without               the concurrence of a human being listening  to               the  same  sounds  is  admissible  or  is  not               admissible in evidence in a criminal trial." (1)  [1962]  3 All.  E.R. 298.       (2)  [1960]  Scots  Law Times 264 L12Sup.CI/70-12 406



But  it  is significant to note that the Court  of  Criminal Appeal  rejected  the  contention of  the  counsel  for  the accused that there has been any question of introduction  of hearsay evidence at the trial by the evidence of the  police officer giving evidence after refreshing his memory from the tape. The  question again directly arose in R. v.  Maqsud  Ali(1). In  that  case a conversation which took, place  in  Punjabi dialect  between two persons and which had been recorded  on the  tape  was played before the jury and  was  admitted  in evidence by the trial Judge.  Objection was taken before the Court  of  Criminal Appeal regarding  the  admissibility  in evidence  of  the  tape recorded  conversation  between  the accused.  Therefore the point that specifically arose before the-Court  of  Appeal  was  ’Is a  tape  recording  as  such admissible  in  evidence,  as  a  matter  of  law’?’   After referring  to  the  observations  in Mills’  Case  2  )  the appellate  Court  noted  that  the  question  regarding  the admissibility  of a tape record was not actually decided  in that case.  The decision of the High Court of Justiciary  in Hopes’  Case(:") was referred to and it was noted  that  the evidence  of  the police officer who listened  to  the  tape recorder  was held to be admissible.  The Court said, at  p. 469 :               "We  think  that the time has come  when  this               court  should state its views of the law on  a               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               involved  in the case and that the prints  are               taken from negatives that are untouched.   The               prints as seen represent 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.   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               (1) [1965] 2 All.E.R. 464.               (2) [1962] All E.R. 298.               (3) [1960) Scots Law Times 264.               407               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." In  consequence,  the  Court  held  that  the  tape-recorded



conversation  was  admissible in evidence,  subject  to  the limitations mentioned in the above extract. It  will  therefore  be seen that  though  the  question  of admissibility of a tape-recorded conversation had been  left open  in Case(1), the same was specifically  considered  and decided affirmatively in Maqsud Ali’s Case (2). Before  we  deal with the decisions of  this  Court  bearing on  this point, it is necessary to advert to two  decisions, one  of  Punjab High Court _and the other, of  the  Calcutta High  Court.   In  Rup  Chand  v.  Mahabir  Parshad(3)   the defendant, in answer to a suit for recovery of a certain sum of  money on the basis of a promissory note., put forward  a plea  that the original promissory note  containing  certain endorsement  had  been destroyed and had  been  replaced  by another   promissory  note  bearing  the  same  date.    The defendant  attempted to substantiate this plea by  the  oral testimony  of  a broker but the latter declined  to  support him.   The  defendant requested the Court to permit  him  to confront the broker witness with the conversation which  had taken  place between himself’ Blind the broker in regard  to the destruction of the earlier promissory note and which,had been faithfully recorded on a tape-recorder.  The  plaintiff objected  to  the  admissibility of the  evidence  by  tape, recorder, but the trial Court over-ruled the objection.   In the  revision taken before the High Court by the  plaintiff, the order of the trial Court was confirmed.  The High  Court relied  upon s. 155(3) of the Evidence Act and held that  as the broker appearing- as a witness in the case before it had made a statement to the defendant on a former occasion which was  at variance with the statement made by him  before  the Court,  there  can  be no doubt  that  the  defendant  could establish that a previous statement which was  contradictory to  the  evidence  given before the Court was  made  by  the witness to him.  Dealing with the question whether a  record of  such a previous statement, as prepared by  a  scientific instrument. could be produced in Court as evidence, the High Court   held  that  such  a  tape-recorded   statement   was admissible in evidence, and observed as follows :               "I  am  aware  of no rule  of  evidence  which               prevents  a defendant who is  endeavouring  to               shake the credit of               (1)   [1962] 3 All E.R. 298.               (3)   A.I.R. 1956 Punj. 173.                (2)[1965] 2 All E. R. 464.               4 0 8               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  decision  lays  down two propositions  :  (i)  that  a taperecorded conversation is admissible in evidence and that (ii) if it contains a previous statement made by a  witness, it  can be used to contradict the evidence given before  the Court. In Manindra Nath v. Biswanath(1) the Calcutta High Court had to  consider whether a defendant was entitled to  adduce  in evidence a previous statement of the plaintiff and  recorded on  the  tape to contradict the plaintiff’s  evidence  given before   the   Court  and  held  that,   the   tape-recorded conversation  was  admissible in evidence and  the  previous statement  recorded therein could be used to contradict  the evidence  given  before the court.  After referring  to  Rup



Chand’s Case (2) the Court observed at p. 192               "If the plaintiff, while he is in the  witness               box,  makes a statement which is  at  variance               with  a statement previously made by him,  the                             plaintiff  may  be asked whether he  m ade  such               previous  statement  and if he  denies  having               made  the  previous statement,  such  previous               statement  may  be proved  by  the  defendant.               There, as in this case, it is alleged that the               previous  statements  of  the  plaintiff  were               recorded in a tape-recorder, those  statements               may  be admitted in evidence, if it is  proved               that they were made by the plaintiff and  that               the   instrument  accurately  recorded   those               statements.  The fact that the statements were               recorded in a tap-,-recorder and the recording               was  made  behind  the back  and  without  the               knowledge  of  the plaintiff is by  itself  no               objection   to   the  admissibility   of   the               evidence." There are two decisions of this Court bearing on this matter S.   Pratap  Singh v. The State of Punjab(3) and  Yusuffalli v. Maharastra(4). In  Pratap Singh’s Case(",) it has been held that  rendering of a tape-recorded conversation can be legal evidence by way of corroborating the statement of a person who deposes  that the  other  speaker and he carried on the  conversation  and even of the state- (1) 67 S.W.N. 191. (3)  [1964] 4 S.C.R. 7533 (2)  A.I.R. 1956 Punj. 173. (4)  [1967] 3 S.C.R. 720.                             409 ment  of  a  person who may depose  that  he  overheard  the conversation between the two persons and what, they actually stated had been tape-recorded and that weight to be given to such  evidence will depend on the other facts which  may  be established  in  a  Particular case.   Though  there  was  a difference of opinion in the majority and minority judgments regarding   certain   other   aspects   which   arose    for consideration,  so  far  as the admissibility  of  it  tape- recorded conversation in evidence, all the Judges appear  to have been unanimous in the view that it was admissible.  But it must be noted that in the majority judgment it is  stated that  it was not contended on behalf of the State  that  the tape-recording   were  inadmissible.   Similarly,   in   the minority  judgment also it is observed that  tape-recordings can be legal evidence by way of corroborating the statements of  a person who deposes that the speaker and he carried  on that conversation and, as it had not been held by the  trial Court  that  the  record of a conversation on  tape  is  not admissible in evidence for any purpose it was not  necessary to pursue the matter further. In Yusufjalli’s case(1) the question was whether a conversa- tion between the complainant and a person, who later figured ,as  an accused on a charge of offering bribe, and  recorded on  tape  was admissible in evidence.  It is seen  from  the decision of this ,Court that the tape recorder was played in Court at the trial of the accused.  This Court held that the evidence of the complainant was sufficiently corroborated by the tape-recorder and observed at p. 723 :               "The  contemporaneous  dialogue  between  them               formed part of the res gestae and is  relevant               and  admissible  under  s.  8  of  the  Indian



             Evidence  Act.   The  dialogue  is  proved  by               Shaikh.   The  tape record,  of  the  dialogue               corroborates  his testimony.  The  process  of               tape-recording  offers an accurate  method  of               storing  and  later reproducing  sounds.   The               imprint  on  the magnetic tape is  the  direct               effect   of  the  relevant  sounds.   Like   a               photograph   of   a   relevant   incident,   a               contemporaneous  tape-record  of  a   relevant               conversation   is  a  relevant  fact  and   is               admissible  under s. 7 of the Indian  Evidence               Act." Reference  was made , with approval  to the decision of  the Punjab  and Calcutta High Courts in Rup Chand’s Case(2)  and Manindra  Nath’s Case(3) and also to the earlier decision of this Court in  Pratap  Singh’s  Case  ( 4 )  where  a  tape- recorded  conversation had been admitted in  evidence.   The decision in Maqsud Ali’s Case(5)   was  also   quoted   with approval. (1) [1967] 3 S.C.R. 720. (2) A.I.R. 1956 Punj. 173. (3) 67 C.W.N. 191 (4) [1964] 4 S.C.R. 733. (5) [1962] 3 All. E R. 298. 410 In particular, it will be noted that this Court, in the said decision, approved of the decision of the Punjab High  Court in  Rup  Chand’s Case(1) holding that  tape-recording  of  a former Statement of a witness can be admitted in evidence to shake  the.  credit of the witness under S.  155(3)  of  the Evidence Act. Having due regard to the decisions referred to above, it  is clear  that  a  previous statement, made  by  a  person  and recorded  on tape, can be used not only to  corroborate  the evidence  given  by  the  witness  in  Court  but  also   to contradict  the evidence given before the Court, as well  as to test the veracity of the witness and also to impeach  his impartiality.  Apart from being used for corroboration,  the evidence  is admissible in respect of the other three  last- mentioned matters, under s. 146 ( 1), Exception 2 to s.  153 and  s.  153(3) of the Evidence Act.  Therefore  it  is  not possible  for  us to accept the contention of  Mr.  Daphtary that the previous statement can be used only for purposes of corroboration  but not for the purpose of contradicting  the evidence  given before the Court.  If a  previous  statement made  by  a person can be used to corroborate  his  evidence given  before  the Court, on principle, we do  not  see  any reason  why  such  previous  statement  cannot  be  used  to contradict  and  also  for the other  purposes  referred  to above.   In  particular the fact that the decisions  of  the Punjab  and  Calcutta High Courts Rup  Chand’s  Case(1)  and Manindra  Nath’s Case(2) where the previous statements  have been used to contradict the evidence given before the  Court has  been  approved by this Court  in  Yusuffalli’s  Case(,) clearly establishes that the contention of Mr. Daphtary that the  previous  statement cannot be used  to  contradict  the evidence  given  before the Court cannot  be  accepted.   As pointed  out  already, Mr. Daphtary has not  challenged  the correctness  of  the  decision  in  Yusuffali’s  Case   (3). Therefore  the  first  ground of  objection  raised  by  Mr. Daphtary will have to be overruled. Coming  to the second contention of Mr. Daphtary, which  has been  set out earlier, in our opinion that question  becomes really  accademic when once we have held that  the  previous statement  can  be  used to contradict  the  evidence  given



’before   the  Court  under.  155  (3)for  the  purpose   of impeaching the credit of the witness.  But, as the  question has been raised, we shall deal with that aspect also. According  to Mr. Daphtary, the expression ’which is  liable to be contradicted’ in clause (3) of S. 155 means ’which  is relevant to the issue’.  In support of this contention,  the counsel  referred  us to the decision of the  Calcutta  High Court  in Khadijah Khanum v. Abdool Kurreem  Sheraji(4)  and pointed out that the said’ decision has been referred to  in text-books on the Law of Evidence (1) A.I.R. 1956 1 (2) 67 C.W.N. 191. (3) [1967] 3 S.C.R. 720. (4)  1890 I.L.R. 17 Cal. 344. 411 vize., Wodroffe & Ameerali’s Law of Evidence, Field’s Law of Evidence  and  Sarkar’s Law of Evidence.   In  the  Calcutta decision the Court has stated :               "I  am inclined to think that in s. 155(3)  of               the  Evidence Act the words, ’which is  liable               to  be contradicted,’ mean ’which is  relevant               to the issue". In  our opinion, the proposition has been too  broadly  laid down  by  the  learned Judge.  A reference  to  the  various clauses  in  s.  155 in our opinion  does  not  warrant  the interpretation  placed  by  the Calcutta  High  Court.   For instance,  under cl. (1), the evidence that is  contemplated and  which  could be given will certainly  not  be  directly relevant to the issue which is before the Court but will  be of a general nature that the witness is unworthy of  credit. Again, under cl. (2), the evidence regarding the receipt  of bribe  will  only be to establish that the evidence  of  the witness  regarding the matters about which he speaks  cannot be  acted  upon.   Even otherwise, in  this  case,  we  have already referred to the relevant issue bearing on the matter and  we have pointed out that according to the  counsel  for the  petitioners their attempt is, to impeach the credit  of R.W.  25,  by establishing, if possible, that  his  evidence cannot  be relied on in view of the fact that he  is  making contradictory statements.  On that basis, even applying  the test  laid down by the Calcutta High Court, it  will  follow that  the  previous  statement, recorded on  tape,  must  be considered  to  be relevant to the issue before  the  Court. Counsel  also  drew  our attention to the  decision  of  the Judicial Committee in Bhogilal v. Royal Insurance Co.(1)  to the effect that ss. 153 and 155 of the Evidence Act must  be strictly  construed.  There can be no controversy  that  the provisions  of  any statute must be  properly  and  strictly construed.   This  decision, hence, has no  bearing  on  the matter before us.  It is also significant that the  Judicial Committee,  when  dealing with s. 155 of the  Evidence  Act, makes  no  reference to the decision of  the  Calcutta  High Court in Khadijah Khanum’s Case (2). It follows that the second ground of objection, urged by, Mr.  Daphtary,  to  the  admissibility  of  this  piece   of evidence, has   also to be overruled. In the result we hold that the conversation, which is stated to  have  taken place between the witness R.W.  25  and  the first  petitioner in Election Petition No. 5 of 1969  (viz., P.W. 55 and recorded on tape, is admissible in evidence.         We once again emphasize that this order relates only to  the  admissibility  in  evidence  of  the   conversation recorded ’on tape (1) A.I.R. [1928] P.C. 54. (2) 1890 I.L.R.17 Cal.344.



412 and  has  not dealt with the weight to be attached  to  that evidence.   It must also be Pointed out that  the  question, whether  the pamphlets, Exhibits P-18B and P-37A, have  been circulated in the manner alleged by the petitioners and  the further  question whether they amount to exercise  of  undue influence are also matters which have not been considered in this  order.  The above are all aspects which will be  dealt with  in  the  judgment, while  disposing  of  the  Election Petitions. R.K.P.S. 413