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May 2011

Evidence — Tape-recorded conversation — Admissible in evidence.

By Dr. K. Shivaram Ajay R. Singh, Advocates
Reading Time 4 mins
[Havovi Kersi Sethna v. Kersi Gustad Sethna, 2011 Vol. 113(1) Bom. L.R. 0479]

Parties are wife and husband. The petition for divorce between the parties and other ancillary reliefs was pending trial. The wife, who is the petitioner, is under cross-examination. The husband relies upon certain handwritten diaries of the wife as well as a compact disk (CD) on which conversation between the wife and the husband has been recorded by the husband on certain dates. The husband has produced the transcript of the said conversation. The wife admits the handwriting in her diaries. The parties are at dispute with regard to the taped conversation on the CD. It is contended on behalf of the wife that the taped conversation cannot be relied upon as a document. It is also contended by the wife that the affidavit of documents was not filed and the instrument on which the initial conversation was recorded is not produced. The wife has neither admitted nor denied the conversation. The husband seeks to use it in her cross-examination.

The Court referred to the elementary principle of recording evidence which must be first considered. Evidence consists of examination-in-chief and cross-examination. A party is required to offer for inspection and produce the documents relied upon by him in support of his case. This is required in his examination-in-chief. This contains the oral and documentary evidence.

The Court further observed that the accuracy of the tape-recorded conversation is of utmost importance since the document, which is a CD having tape-recorded conversation, is liable to erasure or mutilation. Thus it would be for the defendant to show that it was the original recording. This could be done by producing the initial record or the original electronic record. This original electronic record, which is primary evidence, is the instrument on which the original conversation is recorded. The defendant has not produced that evidence. The defendant has not shown the mechanical/ electronic process by which the CD was obtained. The defendant has relied upon the CD per se. That, being a copy, is secondary evidence. At the stage at which the CD is sought to be produced (that is in the cross-examination of the plaintiff), the defendant is permitted not to produce the original electronic record. The copy of such record, being the CD, can itself be used for confrontation in the cross-examination. Much will depend upon the answers in the cross-examination by the plaintiff. If however, the defendant desires to set up a specific case, for which the evidence is contained in the CD, he would be required to satisfy the test of accuracy by producing the original electronic record.

It must be mentioned that evidence is to be considered from three aspects; admissibility of evidence, recording of evidence and appreciation of evidence. It is settled law that tape-recorded conversation is admissible in evidence. What must be of importance is how the tape-recorded conversation is to be recorded as evidence and appreciated thereafter. Recording can be in the cross-examination of the other side and/or in the evidence of the recorder himself. The appreciation of evidence would require consideration of the aforesaid three requirements; identification, relevancy and accuracy. It is left to the defendant to pass those tests. If the tests are not passed, the tape-recorded conversation would be of no use in effect ultimately.

The requirement of sealing the recorded conversation would not be applicable in this case. That requirement is of essence in a criminal case where during investigation the conversation of a party is recorded by the investigating officer. He would certainly be required to seal the tape-recorded conversation and keep it in a safe custody so as to play before the Court at the time of the trial. It has nevertheless to be shown to be accurate and untampered with.

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