AIR 1973 SUPREME COURT 157

AIR 1973 SUPREME COURT 157

SUPREME COURT
(From : Bombay)*

A. N. RAY, J. and I. D. DUA, J.

Criminal Appeal No. 229 of 1969, D/- 22-9-1972

R. M. MalkaniAppellant v.State of MaharashtraRespondent.

Index Note :- (A) Telegraph Act (13 of 1885),S.25- Damaging or tampering with telegraphs -
Where a person talking on the telephone allows a police officer to record it on tape or to hear it,
it cannot be said that the police officer is damaging, removing, tampering, touching machinery,
battery line or post for interecepting or acquainting himself with the contents of any message
within this section.

Cr. A. No. 727 of 1967 D/- 9-10-1969 (Bom.) Reversed.

Brief Note :- (B) Tape recorded conversation is admissible provided that the conversation is relevant
to the matters in issue, that there is identification of the voice and that the accurancy of the
conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous
tape record of a relevant conversation is a relevant fact and is admissible under S. 8. It is res gestae. It
is also comparable to a photograph of a relevant incident. The conversation is therefore a relevant fact
and is admissible under S. 7. When a Court permits a tape recording to be played over it is acting on
real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape
recorded conversation can be altered is also borne in mind by the Court while admitting it in
evidence. Held the tape recorded conversation was admissible in evidence. There was no unlawful or
irregular method in obtaining the recording of the conversation. There was no violation of either Art.
20 (3) or Art. 21 of the Constitution. Further the conversation was not within the vice of S. 162,

Index Note :- (B) Evidence Act (1 of 1872),S.8- Tape recorded conversation - Admissibility.

X-Ref: Evidence Act (1 of 1872), S.7-

X-Ref: Constitution of India,Art.20(3),Art.21,Art.162-

Brief Note :- (B) Tape recorded conversation is admissible provided that the conversation is relevant
to the matters in issue, that there is identification of the voice and that the accurancy of the
conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous
tape record of a relevant conversation is a relevant fact and is admissible under S. 8. It is res gestae. It
is also comparable to a photograph of a relevant incident. The conversation is therefore a relevant fact
and is admissible under S. 7. When a Court permits a tape recording to be played over it is acting on
real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape
recorded conversation can be altered is also borne in mind by the Court while admitting it in
evidence. Held the tape recorded conversation was admissible in evidence. There was no unlawful or
irregular method in obtaining the recording of the conversation. There was no violation of either Art.
20 (3) or Art. 21 of the Constitution. Further the conversation was not within the vice of S. 162,

Criminal P. C. Cr. A. No. 727/1967 dated 9-10-1969 (Bom) Affirmed. AIR 1968 SC 147 and AIR
1964 SC 72, Rel. on.

Index Note :- (C) Evidence - Appreciation of - Evidence illegally obtained - Admissibility of.

Brief Note :- (C) Even if evidence is illegally obtained it is admissible. The Court will take care in
two directions in admitting such evidence First, it will find out that it is genuine and free from
tampering or mutiliation. Secondly, it may also secure scrupulous conduct and behaviour on behalf of

Registered to -Sreenu Garapati Page 1/2 Copyright with All India Reporter Pvt.Ltd., Nagpur
 AIR 1973 SUPREME COURT 157

the Police. The reason is that the Police Officer is more likely to behave properly if improperly
obtained evidence is liable to be viewed with care and caution by the Judge. (1870) 34 J. P. 759 and
1955 A. C. 197 and AIR 1971 S.C. 1295 and (1965) 2 All. E. R. 464, Rel. on.

Cases Referred Chronological Paras

AIR 1971 SC 1162:(1971) 1 SCR 399, Shri N. Sri Rama
Reddy v. Shri V. V. Giri 21,22
AIR 1971 SC 1295:(1971) 2 SCR 118, Magraj Patodia v.
R. K. Birla 25
AIR 1968 SC 147:(1967) 3 SCR 720, Yusufalli Esmail
Nagree v. State of Maharashtra 21,26
(1965) 2 All ER 464, R. v. Maqsud Ali 26A
AIR 1964 SC 72:(1964) 4 SCR 733, S. Pratap Singh v.
State of Punjab 21
1955 AC 197:1955-1 All ER 236, Kuruma Son of Kanju v.
R. 24
(1870) 34 JP 759, Jones v. Owen 24
(1861) 8 Cox C. C. 198:122 RR 882, R. v. Leatham 29
* Cr. A. No. 727 of 1967, D/- 9-10-1969 - Bom.

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