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The State of Maharashtra Vs. Prakash Vishnurao Mane - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 243 of 1973
Judge
Reported in(1977)79BOMLR217
AppellantThe State of Maharashtra
RespondentPrakash Vishnurao Mane
Excerpt:
evidence act (1 of 1872), sections 7, 146(1) and 153 exception 2, 155(3), 159 and 160 - prevention of corruption act (2 of 1947), sections 4(1) and 5--penal code (45 of 1860), sections 161--prosecution on charges of corruption under section 161 of the penal code and under the prevention of corruption act--tape-record of conversation between the complainant and the accused--relevancy and admissibility of tape-record in evidence--explanation of accused that the amount of alleged bribe was given by the complainant to him for safe custody--whether presumption under section 4(1) of the prevention of corruption act could be raised--burden on accused to establish his case by preponderance of probabilities-in an appeal against acquittal, when will an appellate court interfere with acceptance of.....vaidya, j.1. his lordship after narrating the facts of the case and discussing the evidence on record, his lordship dealt with the law relating to tape-recording and proceeded. it seems to be by now settled that there is no difference in principle between a tape-recording and photograph; accordingly, a tape-recording is admissible in law provided that its accuracy can be proved and the voice properly identified and that the evidence was relevant and otherwise admissible, as held in regina v. maqsud ali [1966] 1 q.b. 688 : [1965] 2 all e.r. 464. it was held in that case that the court would not lya down any exhaustive set of rules by which admissibility of such evidence could be judged, for it always had to be regarded with caution and assessed in the light of all the circumstances of each.....
Judgment:

Vaidya, J.

1. His Lordship after narrating the facts of the case and discussing the evidence on record, his Lordship dealt with the law relating to tape-recording and proceeded. It seems to be by now settled that there is no difference in principle between a tape-recording and photograph; accordingly, a tape-recording is admissible in law provided that its accuracy can be proved and the voice properly identified and that the evidence was relevant and otherwise admissible, as held in Regina v. Maqsud Ali [1966] 1 Q.B. 688 : [1965] 2 All E.R. 464. It was held in that case that the Court would not lya down any exhaustive set of rules by which admissibility of such evidence could be judged, for it always had to be regarded with caution and assessed in the light of all the circumstances of each particular case and that but for the fact that the tape-recorder was a mechanical device, it was no different from an eavesdropper. It was also decided that since the defendants in that case were not in custody and no caution was required, the use of the tape-recorder could not be said to operate unfairly against them; the method of taking the tape-recording could not affect its admissibility which still remained a matter for the discretion of the Judge.

2. The Court further laid down that a transcript of tape-recording was obviously a convenience and an aid to a jury, provided that they were guided by what they heard and baaed their ultimate decision on that, In that particular case it was held 'that since all the translations had been submitted to detailed and searching cross-examination and since the evidence of all the translators was fully discussed, there were no grounds for interfering with the exercise of the discretion of the trial Judge; and at p. 702 Marshall J. observed:

It is next said1 that the Recording was a bad one, overlaid in places by street and other noises. This obviously was BO and as a result much of the conversation was inaudible and undecipherable. In so far as that was so, much of the conversation was never transcribed but there still remained much that was transcribed, and the judge after full argument ruled that what was deciphered should be left for the jury to assess. We think that he was right.

3. In 'Cross On Evidence' 4th edn., 1974, p. 12, the learned author has included tape-Recording in the various categories of judicial evidence and has observed:

When a court permits a tape-recording to be played over, it is acting on real evidence if it treats the intonation of the words as relevant. If the court's attention is directed solely to the terms Of the recording, it may be considering whether to act on a hearsay statement, as when a recorded conversation is received as evidence of an admission by one of the parties, or the court may receive the recording as original evidence, as when a recording of slanderous words is admitted in order to show that the words were in fact spoken.

At a trial by jury the party relying on the tape-recording must satisfy the judge that there is a prima facie case that it is the original, and it must be sufficiently intelligible to be placed before the jury, The evidence must define and describe the provenance and history of the recording up to the moment of its production in court. If a transcript of the recording is put in evidence the court will of course have to be satisfied of its accuracy. It has accordingly been held In Scotland that a typist who prepares a transcript after familiarising herself with the contents Of a recording by playing it over many times, may be treated as an expert for the particular occasion, her evidence verifying the transcript as truly representing the contents of the recording being evidence of expert opinion.

The learned author has ended the discussion with a quotation from Sir Jocelyn Simon, where he has observed:.the law is bound these days to take cognisance of the fact that mechanical means must replace Human effort.

4. In Yusufalli v. State of Maharashtra : 1968CriLJ103 , the Supreme Court considered the relevancy and admissibility of tape-recorded evidence, holding in that case (p. 149):.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 Section 7 of the Indian Evidence Act.

In Rup Chand v. Mahabir Parshad , a tape record of a former statement of a witness was admitted in evidence to shake the credit of a witness under Section 155(3) of the Indian Evidence Act. The case was fallowed in Manindra Nath v. Biswanath (1962) 67 C.W.N. 191. In S. Pratap Singh v. The State of Punjab : (1966)ILLJ458SC , the tape record of a conversation was admitted1 in evidence to corroborate the evidence of witnesses who had stated that such! a conversation had1 taken places. In Regina v. Maqsud Ali, a tape record of a conversation was admitted in evidence, though the only Witness who overheard it was riot conversant with the language and could not make out what was said. 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 the magnetic tape recording is the ability to erase and re-Use the recording medium. Because of this facility of the 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.

5. In Rama Reddy v. V.V. Giri A.I.R. [1917] S.C. 1162, the Supreme Court referred to Hopes v. H.M. Advocate [1960] SLT 264 where 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 his hearing of the tape-recorded conversation was objected to. This objection was overruled by the Scot High Court of Judiciary stating that it was competent for the police officer to give evidence of conversation which he hears 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; and the Scottish High Court appears to have approved what the trial Judge in that case observed:

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 Supreme Court approved all these observations and said 'that it is apparent that the tape itself is primary and direct evidence admissible as to what has been said picked up by the recorder.'

6. The Supreme Court further observed after discussing various decisions relating to tape-recording (p. 1169):

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 last-mentioned matters, under Section 146(1), Exception 2 to Section 153 and Section 155(3) of the Evidence Act.

7. Reference in this connection can also be made to R. v. Robson [1972] 2 All E.R. 699, where the Court was satisfied that the recordings wore originals and authentic and their quality was adequate to enable the jury to form a fair assessment of the conversations recorded in them and should not be excluded on that account. A reference may also be made to Clifford Ernest Mills, Peter Samuel Rose (1972) 46 Cr. App. R. 336, where it was held:

A witness is entitled to refresh his memory from a writing made by the witness himself when the matter referred to was fresh in his memory....

The witness in that case was a constable. Winn J. observed (p.342):.In this case the constable set a machine to perform the function which otherwise would have been performed by a pen or pencil in his own hand, and used the record produced by that piece of mechanism which he was employing as his tool, in order to refresh his memory when he was giving evidence. If that be not precisely the right way to look at the matter, though the court thinks it is, an alternative approach is this : that the machine, albeit inanimate, was set by the constable to perform the function of making a record and very soon after the conversations had taken place the constable adopted as accurate the record which that machine had made, and thereupon it became his own record within the principle enunciated by Phipson in the passage to which I have referred. Thereafter, if not from the very beginning, the note made by the constable after he had caused the machine to play back to him, was in all respects and for all relevant purposes the equivalent of a note made by him in his own notebook, sufficiently shortly after the occurrence of this conversation, to which in accordance with the well-established practice he was entitled to refer so far as his memory failed him in the witness box when he was attempting to quote these conversations.

8. Similarly in an unreported judgment of our learned brother Vimadalal J. in Brijmohan Ramdas Mehra v. Ziyauddin Burhanuddin Bukhari (1972) Election Petition No. 4 of 1972, the law was considered with reference to the question as to whether the tape-record was a document for the purpose of Sections 159 and 160 of the Indian Evidence Act. It wag laid down that it was a document and the learned Judge observed:

In my opinion, the question as to whether a tape can be used as substantive evidence of the conversation recorded on it, or whether it can be used for corroborating or contradicting a witness, must depend on the facts of each case and the purpose for which it is sought to be used, in much the same way as that question would arise in respect of any other form of documentary evidence.

In view of the facts and circumstances of that particular case, it was held that the tape-record can be used for the purpose of Sections 159 and 160 of the Evidence Act.

9. It is, therefore, settled law that a tape-record of a conversation can be admitted, provided it is established that it is authentic, which means that it was really a conversation between the persons whom the producers of the tape-record in Court want the Court to believe as the persons, whose conversation was recorded....

10. His Lordship proceeded to make suggestions relating to future legislation about tape-recorded evidence.

11. Before leaving this point, however, we would like to make three observations in connection with the tape-record evidence:

(1) If the prosecution wants to rely on the tape-recorded evidence, we think it is the duty of the investigating officer to take into possession, as early as he can, the tape-record of conversation, which is relevant to the investigation. The tape-record can be taken in the presence of the panchas; and as soon as possible thereafter a transcript also of the game may be made in the presence of the panchas, who are able to hear what is recorded. We do not wish to lay down that the investigating officer or even a constable cannot do that. But having regard to the nature of the allegations, which are usually made against the investigating machinery in our Courts, we think it is desirable that the police officers should take assistance of electronic exports or porsons, who are in a position to know what is recorded, at least when the tape-record is played slowly to enable the Court to appreciate the fairness of the investigation and the efforts made for making an accurate transcript of the tape-record.

(2) Now that the tape-records and the electronics have come into our civilisation for more than two decades, it is high time for the Parliament to make a proper enactment with regard to the tape-recorded evidence, their production, relevance and the mode by which the evidence should be collected, produced and proved in Court particularly having regard to the recent havoc made by the tape-record in the United States of America against its President Nixon. It is high time that some legislation like Section 5 of the Civil Evidence Act in 1968 in England or something with regard to tape-records must be made so as to evolve a uniform practice of admitting and dealing with the tape-recorded evidence.

(3) Until such a legislation is made or the High Court issues a circular in this behalf, the trial Courts may ordinarily follow, as far as possible and as a matter of uniform practice, the following suggestions:

(1) Tape-recorded side in the cassette should be given a separate identifiable Exhibit and always kept under Seal to be operated only with the permission of the Court and within the hearing and sight of the presiding Judge or some officer appointed by him for this purpose. Record should be maintained as to how, when and why the seal was broken and how it was once again sealed. (2) Proper rules may be made for supply of tape-recorded conversation to the parties, or to anyone applying for it having a bona fide interest therein. (3) Before production of the tape-record, a transcript record of the conversation must be filed and proved by the person who made it or in whose presence it was made; and this transcript record must be given a separate Exhibit. (4) If the parties or any of them desire that the Court should at any stage have tape-record heard and the accuracy of the transcript checked up, the Court may play it, on the party applying and supplying necessary and proper player for it, as often as necessary and make notes of the hearing of the tape-record and such notes shall be separately exhibited. (5) In Sessions cases the transcript must be accompanied by an Official English translation of the transcript when the tape recorded conversation is not wholly in English and the translation also shall be given a separate Exhibit. (6) With a view to chock up the accuracy of the tape-record, notes and transcript the Court may at any time require the original tape-record to be played in the presence of all parties at the cost of the party relying on the tape-record in such manner as it deems proper and necessary.

12. We think such rules will have to be evolved in the administration of criminal and civil justice with, regard to the proper and uniform use of tape-records, so that they will guide the parties, who produce the tape recorded evidence in Court and the officers of the Court in dealing with such evidence and maintain and preserve them in proper condition.

13. In the present case, fortunately no allegations are made with regard to the tampering of the tape-record by the police, after the police got it or by anyone else, after the same was produced in Court. But there is a serious allegation made on behalf of the accused against the complainant for having manipulated that tape-recorded evidence and put together various kinds of conversation at various kinds of places and produced the evidence before the police as the conversation between the accused and the complainant. We do not wish to discuss the matter because Mr. Kotwal fairly stated that if his argument is accepted, it would not be necessary to go into that question. His argument is that even if the contents of the transcript are assumed to be accurate, they do not support the prosecution....

14. His Lordship then dealt with the presumption under the Prevention of Corruption Act.

15. What remains, then, is the question as to whether the prosecution is entitled to rely on the presumption under Section 4(1) of the Prevention of Corruption Act, 1947, which runs as follows:

4. (1) Where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code, or of an offence referred to in Clause (a) or Clause (b) of Sub-section (1) of Section 5 of this Act punishable under Sub-section (2) thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

It was not contended before us that the presumption under Section 4(2) will apply to the case.

16. It was urged by Mr. Namjoshi that the presumption under Section 4(1) would apply to the third head of the charge under Section 161 of the Indian Penal Code. The fourth head being the charge under Section 5(1)(d) does not attract the presumption under Section 4. The learned Special Judge has discussed this question in paras. 118 and 119 of his judgment and has come to the conclusion that the accused was 'able to create a clear impression in the mind of the Court that his version is true and that the prosecution version is not true'. It is contended with some force by Mr. Namjoshi that the explanation given by the accused that Rs. 10,000 was given to him for safe custody by the complainant is absurd and, therefore, the presumption under Section 4 would apply and the accused must be convicted far the offence under Section 161.

17. The law on the point appears to be well settled. Similar provisions ware considered by the Privy Council in Public Prosecutor v. Yuvaraj [1970] A.C. 913 P.C. That was a case under the Prevention of Corruption Act, 1961 from the Federal Court of Malaysia, where the section provided for presumption similar to the presumption under Section 4 and the definition of 'proved' was the same, as is to be found in Section 3 of the Indian Evidence Act, 1872, the Privy Council observed (p. 922):

It has been suggested that to satisfy the court that upon the balance of probabilities a fact does not exist puts too high a burden upon a defendant in criminal proceedings where the consequence of a failure to disprove that fact would be his conviction; and in some of the cases cited by the Federal Court without explicit disapproval expressions are used which might be understood as calling for an explanation by the defendant of no greater degree of plausibility than is sufficient to raise a reasonable doubt in the existence of the fact which he must disprove. But this is the test by which, in the absence of any statutory provision reversing the burden of proof, the court determines whether a fact the existence of which is a necessary ingredient of a criminal offence has been 'proved' or 'not proved' by the prosecution, upon whom the onus lies to prove it. It is merely another way of saying that the prosecution must not only prove the existence of first two factual ingredients of the ofience, viz. (1) that a gratification was paid or given to or received by the defendant and (2) that at the time of the payment, gift, or receipt he was in the employment of a public body, but must also satisfy the court that the circumstances in which the gratification was paid, given or received give rise beyond reasonable doubt to an inference of fact that it was paid, given or received with a corrupt motive. This is the ordinary way in which the prosecution satisfies the burden of proving the motive with which an act was done by the defendant where the onus of doing so lies upon the prosecution. In their Lordships' view it gives no sufficient effect to the reversal of the ordinary onus of proof by an express statutory provision that fact which constitutes an ingredient of a criminal offence shall be deemed to exist 'unless the contrary is proved'.

The policy which underlies Section 14 of the Prevention of Corruption Act, 1961, is, in their Lordships' view, clear. The section is limited to persons 'in the employment of any public body'. No similar presumption applies to agents of private principals. Corruption in the public service is a grave social evil which is difficult to detect, for those who take part in it will be at pains to cover their tracks. The section is designed to compel every public servant so to order his affairs that he does not accept a gift in cash or in kind from a member of the public except in circumstances in which he will be able to show clearly that he had legitimate reasons for doing so.

In the result, upon the true construction of the Evidence Ordinance and the Prevention of Corruption Act, 1961, there is, in their Lordships' view, no relevant difference between the two descriptions of the burden of rebutting the presumption of corruption which are contained in the question reserved for the consideration of the Federal Court, if the expression in the first part of the question : 'the burden of rebutting this presumption can be said to be discharged by a defence as being reasonable and probable' is understood as meaning : 'the burden of rebutting such presumption is discharged if the court considers that on the balance of probabilities the gratification was not paid or given and received corruptly as an inducement or reward as mentioned in Sections 3 or 4 of the Prevention of Corruption Act, 1961'.

18. The question has been considered by the Supreme Court in more than one case. In V.K. Sharma v. State : 1975CriLJ776 , which was also a case under the Prevention of Corruption Act, it was laid down:

The presumption arising under Section 4 of the Act when a public servant accepts gratification other than legal remuneration is not available to the prosecution for proving the charge under Section 5(2) of the Act with reference to Clause (d) of Sub-section (1). The presumption arises in regard to an offence under Section 161 of the Penal Code or to an offence referred to in Clause (a) or Clause (b) of Sub-section (1) of Section 5 of the Act.

In Sita Ram v. State of Rajasthan : 1975CriLJ1224 it was further laid down (p. 1436):

The main ingredients of the charge under Section 161 of the Penal Code with reference to the facts of this case are these:

(1) That the accused was a public servant.

(2) That he must be shown to have obtained from any person any gratification.

(3) The gratification should be other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to the person.

When the first two ingredients are proved by evidence then a rebuttable presumption arises in respect of the third ingredient. In absence of the proof of the first two facts, the presumption does not arise. On mere recovery of certain money from the person of an accused without the proof of its payment by or on behalf of some person to whom official favour was to be shown the presumption cannot arise.

It must also be borne in mind that in M.P. Gupta v. State of Rajasthan A.I.R. [1974] S.C. 773, it is laid down (p. 774):

Under Section 4(1) of the Act, the burden of proving the contrary must rest on the appellant. But learned Counsel appearing on his behalf urges that the presumption under Section 4(1) can be raised only if the prosecution establishes in the first instance that the amount was paid otherwise than as legal remuneration. This contention is contrary to the clear terms of Section 4(1) and would render illusory the presumption arising under the section. To cast on the prosecution the burden of proving that the amount was accepted by the accused otherwise than by way of legal remuneration is to ask the prosecution to prove that the amount was paid and accepted by way of bribe. If this be the true nature of the burden resting on the prosecution, no presumption at all need be raised because apart from the presumption the prosecution would have to prove that the money was accepted by the accused and that it was accepted as a bribe. It is plain that if the prosecution proves the acceptance of the amount by the accused and the amount does not represent legal remuneration in any form or of any kind, the accused must establish that the amount was not accepted by him as a motive or reward such as is mentioned in Section 161, Penal Code. As held in V.D. Jhingan v. State of U.P. : [1966]3SCR736 the accused can establish his case by preponderance of probabilities, that is to say, he need not prove his case beyond a reasonable doubt.

19. In view of the above principles, although there is some force in the contention of Mr. Namjoshi that the explanation given by the accused cannot be considered to be reasonable to all it cannot be said that it was so unreasonable that no Court of justice can accept it. Even assuming that it is more reasonable to reject it, it would not be open in an appeal against acquittal to interfere with the acceptance by the learned Judge of the explanation. It may be that nine reasonable and prudent persona out of ten would not accept money for safe custody from a person like Jeevanlal, but if there is one reasonable and prudent person, who would accept it, it cannot be said to be wholly unreasonable or absurd for the accused to have accepted money for safe custody. It is common knowledge that people in Bombay are often called upon by outsiders having some acquaintance with them to do many things for thorn including taking into custody valuables and money in certain circumstances.

20. In the present case, the plea of the accused was that when he came to M.L.As' Hostel, it was late; and the complainant, who was to go by car to Dhulia, thought it safer to keep money in Bombay, as he could not deposit the money in Bank, as there was a Bank strike and as he was to return to Bombay soon. It is the case of the accused that Jeevanlal had once deposited Rs. 25,000 and some valuable packets with him earlier. There is no corroboration to the story of the accused. It is also clear from the way, in which the complainant has talked on phone to Ramrakhiyani as 'Boss' that he had a way of becoming more than familiar with the officials of the Fertilizer Corporation of India. If in such circumstances, the accused was induced to take money for keeping it with him, till the complainant returned from Dhulia, it cannot be said to be so unreasonable or improbable that a prudent man would not do it in such circumstances, although many prudent men might hesitate to do so.

21. What is required by the Indian Evidence Act is not that all the prudent men in the world should behave in the same way. If some prudent men can reasonably be expected to behave in a particular way, it can be said to be a way of a prudent man. It is enough to hold that such conduct is proved to be honest and without a corrupt motive. After considering all the matters before the Court, the lower Court believed the explanation as reasonable, probable and trite. We cannot consider the explanation as so unreasonable or improbable that a prudent man, in the circumstances of the particular case, ought not to act on the Supposition that such an explanation was honest and true. Even though we may take a different view of such a matter, we do not think that it is proper to interfere with the assessment of the reliability of the explanation given by the accused in view of the circumstances of the case, particularly as there is no independent corroboration to support the tainted evidence of the complainant and the unreliable and weak testimony of the trap panch witness Tandon.

22. The rest of the judgment is not material for the purposes of this report.


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