Shri N. Sri Rama Reddy Vs. Shri V. V.
Giri  INSC 109 (27 April 1970)
27/04/1970 VAIDYIALINGAM, C.A.
BHARGAVA, VISHISHTHA MITTER, G.K.
CITATION: 1971 AIR 1162 1971 SCR (1) 399 1970
SCC (2) 340
E 1973 SC 157 (21,22) R 1975 SC1788 (21) RF
1986 SC 3 (29,146,174,218)
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.
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 crossexamination 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
On the question of the admissibility of the
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,  4 S.C.R. 733, Yusuffalli v, Maharashtra State,  3 S.C.R.
720 and R. v. Maqsud Ali  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
ORIGINAL JURISDICTION Election Petitions Nos.
4 and 5 of 1969.
Election Petitions in Admissibility in
Evidence of TapeRecorded 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 attempting 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, pamphlets 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 counteraffidavits filed by the
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 correctness 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, learnedcounsel
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 former404 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
Objections were raised to the admissibility
of the said evidence. The learned trial Judge over-ruled the ,objection as
"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
(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 Justifier, 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)  3 All. E.R. 298. (2) 
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.
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.
"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)  2 All.E.R. 464.
(2)  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)  3
All E.R. 298.
(3) A.I.R. 1956 Punj. 173.
(2) 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 tape recorded
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
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.
(3)  4 S.C.R. 7533 (2) A.I.R. 1956
(4)  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 conversation 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 taperecorded
conversation had been admitted in evidence. The decision in Maqsud Ali's
Case(5) was also quoted with approval.
(1)  3 S.C.R. 720.
(2) A.I.R. 1956 Punj. 173.
(3) 67 C.W.N. 191 (4)  4 S.C.R. 733.
(5)  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 them. 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 lastmentioned 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)  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.  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.