Under the Indian Evidence Act, 1872, there are two types of evidence- oral evidence and documentary evidence.
Under section 3 of the Act, “Evidence” means and includes-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
Therefore, all the statements made by witnesses are classified as ‘oral evidence’ and all the documents that are produced before the Court are ‘documentary evidence’. The term ‘electronic record’ is not defined under the Indian Evidence Act, however, under section 2(t) of the IT Act, 2000, an ‘electric record’ is defined as data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;
A phone audio recording falls within the ambit of an electronic record. In the current digital age, these devices are being used for almost everything. There is an inflow of cases where electronic records especially voice recordings are being brought before the Courts for evidence. The question of whether this evidence is admissible or not is discussed under the Indian Evidence Act, 1872.
Section 65B of the Indian Evidence Act, 1972:
Section 65B of the Act deals with the admissibility of electronic records. There are certain conditions laid down under the section and if these conditions are satisfied then such evidence shall be admissible in any proceedings before the Courts. The conditions are as follows;
- The computer source containing the information, which is being produced as evidence, has to be produced by the computer during the period over which it was used regularly to store or process information for the purposes of any activities regularly carried on and it must be carried on by a person who has lawful control over the use of that computer.
- During the said period, information contained in the electronic record or of a kind from which it was derived has to be regularly fed into the computer in the ordinary course of these activities.
- Throughout the significant part of this period, the computer must be operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation, then for the duration of that part of the period, the accuracy of the contents of the electronic record must not be effected.
- The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
According to section 65B (4), if evidence is adduced during any proceeding before a Court by virtue of this section, then a certificate stating any of the following needs to be furnished;
- A certificate identifying the electronic record containing the statement and describing the manner in which it was produced or;
- A certificate giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; or
- It is to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities shall be evidence of any matter stated in the certificate.
Judicial decisions on admissibility of recorded evidence:
RM Malkani vs. State of Maharastra[i]
The Court in this case laid down the following conditions to allow a tape recorded conversation to be admissible as evidence before a court of law.
- The conversation recorded on tape must be relevant to the matter in issue.
- The voice recorded must be identified.
- The accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-recorder.
“Tape recorded conversation is admissible, provided first the conversation is relevant to the matters in issue, secondly, there is identification of the voice and thirdly, the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-recorder. The tape-recorded conversation is, therefore, a relevant fact under section 8 of the Evidence Act and is admissible under section 7 of the Evidence Act.”
Ram Singh v. Col. Ram Singh[ii]
The Court in this case held that, the evidence recorded on a tape Recorder or other mechanical process is in favour of the admissibility of the statements subject to certain safeguards such as;
- The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
- The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence- direct or circumstantial.
- Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
- The statement must be relevant according to the rules of Evidence Act.
- The recorded cassette must be carefully sealed and kept in safe or official custody.
- The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
K. Velusamy vs. N. Palanisamy[iii]
The Supreme Court in this case, considered the telephonic conversation recording and came to the conclusion that a disccontaining recording of telephonic conversation could be a valid evidence according to Section 3 of the Evidence Act and Section 2 (t) of the IT Act. The Supreme Court also observed that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation.
In conclusion, phone audio recording is admissible as evidence in Courts under section 65B of the Indian Evidence Act, 1872. But, it is also subject to certain conditions are prescribed by the Courts in various precedents.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
[i]1973 AIR 157
[ii]1985 Supp SCC 611
[iii](2011) 11 S.C.C. 275
