Essaki Ammal @ Chitra vs Veerabhadra @ Kumar

Aruna Jagadeesan, J.—This Civil Revision Petition is filed against the fair order and decretal order dated 11.7.2013 passed in I.A. No. 54

of 2011 in H.M.O.P. No. 19 of 2011 by the learned Principal Sub Judge, Nagercoil, allowing the Petition filed by the Respondent to play the

compact disc marked as Ex. P7 in the Court and receive it as evidence. The Respondent/husband has initiated Divorce proceedings as against his

wife in H.M.O.P. No. 19 of 2011 alleging cruelty against the wife. The Petitioner/wife denied the allegations leveled against her by the Respondent

in the Counter filed by her. During the examination of the Respondent as PW1, the compact disc was marked as Ex. P7 subject to the objection

raised by the learned Counsel for the Petitioner/wife. According to the Respondent, the Petitioner/wife abused him in a filthy language over cell

phone and the Respondent has recorded the same in his cell phone and downloaded in a compact disc which is exhibited as Ex. P7. He filed an

Interlocutory Application seeking permission of the Court to display the said compact disc before the Court so as to enable the Court to hear the

conversation between the Petitioner and the Respondent.

The Petitioner resisted the said Application contending that the Respondent did not produce the cell phone and the memory card through which

he is alleged to have recorded the conversation and no steps have been taken by him to get an expert opinion to identify the voice that it is the

voice of the Revision Petitioner. It was contended that in the absence of expert''s opinion, it is not permissible for the Court to hear the

conversation recorded in the compact disc. It is also pointed out that there is every possibility of erasure, addition and manipulation by using the

electronic technology and without identifying the voice recorded in the Respondent''s cell phone, the Respondent is not entitled to seek leave of the

Court to hear the alleged conversation by playing the compact disc before the Court.

The Trial Court allowed the said Petition on the ground that as per Section 73 of the Evidence Act, the Trial Court itself has got power to

compare and identify the voice recorded in the compact disc with that of the voice of the Revision Petitioner/wife and the display of the said CD

would help the Court to appreciate the contentions of the parties. The Trial Court also directed the Respondent to produce the cell phone and

other instruments for playing the CD.

Mr. S. Meenakshi Sundaram, the learned Counsel for the Revision Petitioner, reiterating the contentions made by the Petitioner before the Trial

Court, submitted that the Trial Court erred in allowing the Petition without sending it to the expert for comparison of the voice recorded in the

compact disc with that of the voice of the Revision Petitioner before receiving the said compact disc in evidence.

On the other hand, Mr. S. Pon. Senthilkumar, the learned Counsel for the Respondent supported the impugned order and contended that the

evidence afforded by the tape recorded talk has to be considered in appreciating the language used by the Revision Petitioner and the same would

help the Court in deciding whether the allegations made by the Respondent were substantiated or not.

This Court heard the submissions made by the learned Counsel on either side.

By the impugned order, the Trial Court had allowed the Respondent to display the recorded talk between himself and the Revision Petitioner in

which according to him, unparliamentary and abusive language was used by the Revision Petitioner against the Respondent which was recorded in

his cell phone and subsequently, downloaded in a compact disc Ex. P7. It is no doubt true that a contemporaneous tape-record of a relevant

conversation is a relevant fact and is admissible in evidence u/s 7 of the Evidence Act. For use of a tape recorded statement, the identification of

the taped voice is a crucial matter and indeed, such proper identification is the sin qua non for the use of the earlier tape recording. Where the

voice is denied by the alleged maker thereof, a comparison of the same becomes inevitable and the proper identification of voices must be proved

in a manner known to law.

Before admitting the tape-recording of the alleged telephonic conversation between the Revision Petitioner and the Respondent, it is for the

Petitioner to prove by competent witness, the time, place and accuracy of the said tape-recordings and the voice must be properly identified. At

this juncture, it is relevant to refer to the observations made by the Honourable Supreme Court reported in Yusufalli Esmail Nagree Vs. The State

of Maharashtra, hat the Court must be satisfied beyond reasonable doubt that the record has not been tampered with, because of the facility of

erasure and reuse of the recording medium. It is held as below:

If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the

recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the

ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The

Court must be satisfied beyond reasonable doubt that the record has not been tampered with.

The new Section, namely, Section 65A says that the contents of electronic records may be proved in accordance with the provisions of Section

65B of the Evidence Act. Section 65B prescribes the mode of proof of contents of electronic records. The Section lays down certain conditions

which have to be satisfied in relation to the information and the computer in question. If those conditions are satisfied, the electronic record shall

become admissible in any proceedings without further proof or production of the original as evidence of any contents of the original or of any fact

stated in it.

In the present case, the Respondent seeks for a direction from the Court to allow him to play the tape recording and this is for the purpose of

showing that the recorded voice is that of the Revision Petitioner. It Is relevant to point at this juncture that as per the rules of the Evidence Act, the

Trial Court must ensure the accuracy of what has been recorded and for the said purpose, the recorded voice found in the compact disc must be

compared with that of the voice of the Petitioner by an expert and rule out the possibility of tampering with the record. For the said purpose, the

recording of the voice of the Petitioner for the purpose of comparison has to be made and such comparison is neither expressly nor impliedly

prohibited under any Statute.

The learned Counsel for the Petitioner submitted that though the Trial Court has directed the Respondent to produce the cell phone, but in case

if the Respondent has recorded the conversation in the memory card by using the recording mode contained in the cell phone, then he should be

directed to produce the memory card also along with the cell phone. Whereas it is the case of the Respondent that he recorded the conversation

by using the recording mode which is contained in the cell phone itself and taking the same into consideration, the Trial Court has directed the

Respondent to produce the cell phone. In the light of the discussions made above, this Civil Revision Petition disposed of with the following

directions:

The impugned order is set aside.

The Trial Court shall call upon the Respondent to produce the cell phone in which the alleged conversation was recorded and on ascertaining

from the Respondent whether he has recorded the conversation in the cell phone or in the memory card, appropriate orders can be passed by the

Trial Court directing him to produce the memory card In case if the Respondent recorded the conversation In the memory card immediately along

with the cell phone, which recorded the conversation In the memory card.

The Trial Court shall call upon the Petitioner to allow the tape-recording of her voice which has to be taken in the Court and such tape recorded

voice cart be compared by an expert and after such comparison, the Court can come to a conclusion whether the recorded voice in Ex. P7

Compact Disc is the voice of the Revision Petitioner.

Of the Revision Petitioner does not submit to tape-recording of her voice in the Court to provide a standard recording of the voice, the Court

may draw adverse interference against her.

No costs. Consequently, the connected MP is closed.