So far as the CD itself is concerned as a documentary evidence, Counsel on behalf of the Defendant has relied upon the case of R.M. Malkani vs. State of Maharashtra, AIR 1973 SC 157. In paragraph 14 of the judgment, the tape is held to be primary and direct evidence of what has been said and recorded. However, the CD sought to be relied upon by the 12 NM-8
Plaintiff is a copy obtained by the mechanical/electronic process of having the original tape recorded conversation uploaded on a computer from the original electronic record and copied on the CD. Such copy is, therefore, secondary evidence under Section 63 of the Evidence Act and, therefore, can be used only upon production of the original record of such taped conversation under Section 65B of the Evidence Act.
15.Further in the case of R.M. Malkani (supra), tape recorded conversation is held admissible if it is relevant, if the voice is identified and the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape recorded conversation. It is observed to be comparable to a photograph of a relevant incident and hence admissible under Section 7 of the Evidence Act. In that case, there was no dispute about the identification of voices. The matter, which was tape-recorded was relevant to the issue. There was no controversy of any portion of the conversation being erased or mutilated. Party whose voice was recorded was given full opportunity to test the genuineness of the tape- recorded conversation. It was considered as a document admissible in evidence.
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16.The three provisos set out in that judgment are important. The conversation has to be relevant; this is a case for divorce in which the taped conversation is alleged to be relating to the Defendant having been told to leave the house of the Plaintiff s father as she wants a divorce. Upon that fact it becomes relevant to consider that document. The identification of the voice can be made initially by the Plaintiff herself by admitting that that was her voice in the conversation. If that is not done, the Defendant can identify the voice himself or through any other witness. If the Defendant or the Court requires, it may get the voice identified through an expert. That would not be required in every case. The forensic evidence, prayed for by the Plaintiff, would be required depending upon the facts of the case which would emerge in the cross- examination and depending upon the requirement of any identification or further identification. 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 eraser or mutilation. It would be for the Defendant to show that it was the original recording as mentioned by the Defendant himself. 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 14 NM-8
recorded.
