YUSUFALLI ESMAIL NAGREE v. THE STATE OF MAHARASHTRA

With regard to the incident of July 18, 1960 the High Court was not inclined to accept the evidence of Shaikh without inde pendent corroboration. The High Court found that Shaikh was substantially corroborated by Naik who had played the role of a detective. Mr. Mistry argued that Naik was an accomplice E and his evidence should not be accepted without corroboration. It is not right to say that Naik was an accomplice. He did not provoke or participate in any crime. The defence counsel con ceded in the High Court that Naik had no animus for giving The High Court found Naik to be a reliable false evidence. witness and worthy of credit and we see no ground for reviewing this conclusion and the concurrent finding of the courts below that the charge of the offer of a bribe by the. appellant to Shaikh on July 18, 1960 was proved. F G H themselves concealed Shaikh was the only eye-witness to the offer of the bribe on August. 2, 1960. Mahajan,, the radio mochanic and other per in the inner room of sons who kept Shaikh's residence did not witness the offer of the bribe, nor did they h~ar the conversation, be!Ween Shaikh and the appellant. The High Court was not mchned to accept the evidence of Shaikh without corroboration. But the High Court found that his evidence was sufficiently corroborated by •he tape reoorder. The appellant handed over Rs. 100 to Shaikh on August 2, .1960. The contemporaneous dialogue between them formed part of the res. gestae and is relevant and admissible under s. 8 of the Indi!I!\ The tape Evidence Act. record of th~.qla; logue corroborates his testimony. The process The dialogue is proved .by Shaikh. '1l 724 SUPREME COURT REPORTS [1967] 3 s.c.R. of tape recording offers an accurate method of storing and later The imprint on the magnetic tape is the reproducing sounds. direct effect of the relevant sounds. Like a photograph of 11 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. ), the tape re.cord of a conversation was admitted In Rup Chand v. Mahabir Parshad and another('), a tape record of a fonner statemPnt of a witness was admitted in evi dence to shake the credit of the witness under s. 155(3) of the Indian Evidence Act. The case was followed in Manindra Nath v. Biswanath Kundu('). In S. Pratap Singh v;' The State of Pun· jab ( 3 in evi dence, to corroborate the evidence of witnesses who had stated ihat such a conversation had taken place. In R. v. Maqsud Ali(') a tape record of a conversation was admitted in evidence, though the only witness who overheard it was not conversant If with the language and could not make out what was said. 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 magc netic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and evidence must be received with caution. The court must .be satisfied · beyond reasonable doubt that the record has not been tampered with. re-use, A B c D E The radio mechanic did not hear the conversation but he proved that the tape recorded all the sounds produced in the room where only Shaikh and the appellant were present. The voices of the appellant and Shaikh were properly identified. The tape was not sealed and was kept in the custody of Mahajan. The absence ·of sealing naturally gives rise to the argument that the recording medium might have been tampered with before it was r.~played. However, it was not suggested either in the cross examination of the prosecution witnesses or in the answers under s. 342, Criminal Procedure Code, that any tampering had ta!Cen place with r.ecording. While admitting the accuracy of material parts of t~e ·conversation reproduced by the tape recorder, th~ appellant m his examination under s. 342 attempted to explain the conver· sation and the object of his visit and ·said that he had go~e to Shaikh's residence for obtaining repayment of a loan of Rs. 100 which he had advanced to Shaikh on JUiy 19, 1960. The High _ Court rejected the appellant's explan~tions. Mr. Mistir was right in saying that the Htgh Court coulif not accept the mculpatory part and reject the exculpatory part of the appellant's answers <'i>> 1%~5J~~ii1l.~.464. fl) A.1.R.1956)'uni. I73. (3) [1964] 4 S.C:R. 733. F G H YUSUFALLI v, MAHARASHTRA (Bachawat, J.) 725 under s. 342. But there was other evidence showing ,that the tape recording was not tampered with. The fact that the defence did not suggest any tampering lends assurance to the credibility of the other evidence. The courts below rightly held that the tape recorder faithfully recorded and reproduced the actual conver sation. The appellant had walked into a pre-arranged trap. Mahajan and other police officers had hidden themselves in the inner room. Shaikh kiiew that the police officers were recording the conversa tion and was naturally on his guard while talking to the appellant. The appellant was not aware of the presence of the police officers. He was lulled into a sense of security and was off his guard. The offence of the attempt to bribe Shaikh on July 18, 1960 had already been committed and reported to the police and was under investigation on August 2, 1960 when Shaikh ,;md. the appellant met and talked. The evidence of the conversation was tendered at the trial of the offence ·committed on July 18, 1900 and of the connected offence committed on August 2, 1960. Mr. Mistry argued that in these circumstances, the use of the statements of both Shaikh and the appellant on August 2, 1960, was barred by s. 162 of the Code of Criminal Procedure. We are not im pressed with this argument. The appellant was not making a statement to Mahajan or to any other police officer. He was not even aware that any police officer was listening to him. He was 'talking to Shaikh. No doubt Shaikh was a police decoy assisting the police in their investigation, but the statement of the appel lant to Shaikh while making another offer of a bribe cannot be regarded as a statement by him to the police. Nor can the words uttered by Shaikh be regarded as a statement to the police. Shaikh was talking to the appellant. He knew that what he said was being recorded for subsequent use by the police officers. But he was not speaking to any police officer. There was a dialogue in which Shaikh and the appellant took part. Each spoke to the other, but neither made a sta:tement to a police officer. The case of Ramkishan Mithanlal Sharma v. The State of Bombay(') shows tha~ where identification parades are directed and supervised . by pohce o~cers and ~eld in their presence and the panch witnesses take a mmor part m the matter, the statements of the identifiers may be regarded .as statements to the police officers. In the pre sent case, the pohce officers set the stage for the drama in which the ac~ors we!e Shaikh and ,the appellant. The officers hid them selves 11! the mner room and took no part in the drama. Neither of them can be regarded as having made a statement to a police officer as contemplated by s. 162. Counsel claimed protection under Art. 20 ( 3) of the Constitu (1) (1955] S.C.R._903, 922-23. B c D IE G H 726 :strPREME COURT REPORTS [1967] 3 S.C.R. tion against the use of the· statements made· by the appellant on August 2, 1960. H~ argued that by the active deception of the police, the appellant was compelled to be. a witness against him self. Had the appellant known that the police had arranged ~ trap, he would not have talked as h~ did. Compulsion may take many forms. A person accused of an offence may be subject physical or mental torture. He may be starved or bJlllten and a confession may be extorted from him. By deceitful means he may be induced to believe that his tortured in.an adjoining room and by such inducement he may be compell ed to make an incriminating statement. But we cannot say that in this case the appellant was compelled to be a witness against himself. He was free to talk or not td talk. His. conversation with Shaikh was voluntary. There was no element of duress, coercion or compulsion. His statements were not extracted from him in an oppressive manner or by force or against his wishes.. He catt· not claim the protection of Art. 20(3 ). The fact that tho tape recording was done without his knowledge is not of . itself . an objpction to its admissibility in evidence. In saying so, the Court does not lend its approval tO the police practice of tapping tele phone wires and setting up hidden microphones for the purpose of tape recording. is being A B c I) the appellant of The High Court rightly convicted offence under s. 165A of the Indian Penal Code. Counsel plead ed for reduction of the sentence. The appellant is sixty years old. He is suffering from cardiac troubles. He was removed to jail from the hospital in ·an ambulance on July 29, 1963. He remained in jail until December 12, 1963 when he was released on bail. Hav mg r~ard to these and other circumstances, we reduce the sub stantive sentence of imprisonment to the period of imprisonment already undergone by him. With this modification of ~he sen tence, the appeal is dismissed. Y.P. Appeal dismissed.