SHRI N. SRI RAMA REDDY ETC. versus SURI V. V. GIRI

SHRI N. SRI RAMA REDDY ETC.

SURI V. V. GIRi

April 27, 1970

[S. M. SIKRI, J. M. SHELAT, V. BHARGAVA, G. K. MITTER AND C. A. VAID!ALINGAM, JJ.]

Evidence Act (I of 1872), ss. 146(1), 153, Exception (2) and 153 (3)-Tape-recorded statement of witness-Whether admissible to con-tradict his Evidence in Court.

The petitioners filed an election petition under the Presidential and Vice Presidential Election Act, 1952 and according to them undue influ-ence was exercised by the publication and distribution of certain pam-phlets containing scurrilou~ 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 witness for the returned candi· date, he denied in his chief-examina:ion that he distributed the pamphlets. When it was suggested to him in cross-examination 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. tape recorded conversation between the witness and the petitioners was sought to be given in evidence by playing the tape-record to impeach tlie credit of the witness.

On ·the· question of the admissib'lity of the evidence,

HELD : ( 1) previous ;statement made by 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) ands. 155(3) of the Evidence Act. If previous statement made by person can be used to corroborate his evidence given before court, on princip1e, there is no reason why such previous statement can-not be used to contradict under s. 153, Exception 2 and also for the other purposes un~.or ss. 146(1) and 155(3). [410 B-C, D-E]

S. Pratap Singh v. State of Punjab. [1964] 4 S.C.R. 733, Yusufjalli v .. Maharashtra State. [1967] 3 S.C.R. 720 and R. v. Maqsud Ali [1965] 2 All. E. R. 464, re'ferred to.

Rup Chand v. Mahabir Parshad, A.LR. 1956 Punj. 173 and Manindra NaJh v. Biswana~h. 61 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 eontra in Khadijah Khanum v. Abdool Ku,.reem Sheraji, 189() J.L.R. 17 Cal. 344 is too broadly stated. But even if it mean 'relevant to the issue' the tape. recorded statement in the present case, is relevant to the issue befpre this Court, namely, 'whether the respondent, or any person with his connivance, printed, published and distributed the pamphlets." [411 B-C, El

ORIGINAL JURISDICTION : Election Petitions Nos. 4 and 5 of

Election Petitions in Admissibility in Evidence of Tape Recorded Conversation.

K. C. Sharma, K. I. Rathee, M. S. Gupta, C. L. Lakhanpa/

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 Kumaramanga/am.

S. T. Desai, S. K. Dholakia, J. B. Dadachanji', Ravinder Narain

and 0. C. Mathur, for the respondent {in both the petitions).

Jagadish Swarup, Solicitor-General, L. M. Singhvi and K. P. K. Nayer, for the At~rney-General, Election Commission and Retu~ning 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 Gilani Dhar from filing the election petition on political reasons and when the witness denied not only those suggestions but also certain other sugges-tions put to him, counsel for the petitioner represented that Shri Abdul Ghani Dar had 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. .. K. Daphtary, learned counsel for the res-pondent, that the tape recorded conversation was not admissible in evidence. In view of this objection, counse1 on both side were heard regarding the admissibility of the tape recorded conversa-tion, on April 2, 1970 and, after hearing arguments on both sides, we then expressed the opinion that the iape recorded con-versation could be received in evidence and that we would give our reasons later. The further cross-examination and re-examination of the witness proceeded in respect of the taoe recorded conversation which wM played in Court in the presence of the witness. . i/li•

We now proceed to state our reasons for holding that the tape recorded conversation could be admitted in evidence. But we make it cidr that we have dealt with only the question re-garding the admissibility in evidence of the tape recorded con-versation, which is distinct and separate from the weight to. be

given to such evidence which question will be dealt with in the main judgment to be delivered in th.e election petitions.

Before we deal with the question of admissibility of the tape r~corded conversation, it is neci:ssary 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 ·can-didate 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 elec· lion 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·l8B and P 37-A respectively) were published by free distribution among the members of the Electoral College for the Presidt:ntial Election. It has been further allege_\!. that the offence of undue inHuence 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 attempt-ing 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 tha_t with the object of interfering with the free exercise of electoral rights by Sri N. Sanjiva Reddy, candidatG 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 publish.~d. by free distribution, pamph· lets 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 th.~ meaning of s. 171 ( c) of the Indian Penal Code. There is 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 Presi-dential election and they were also distributed during this period in lhe Central Hall of Parliament by the various puscins men-G tioned in the petition, which included Shri Jagat Narain.

No doubt the allegations that undue inHuence in' the manner mentioned was exercised by the mpondent or by anybody with his connivance have been strongly refuted in the counter-affidavit~ filed by the respondent.

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 Auaust 9 and August 16~~

r ' 1969 had already been mentioned in the election petition. He has further stated in the said particulars that Shri Jagat Narain was one of \he persons who distributed the pamphlets in the 1 (:entral Hall of Parliament on August 11, 1969 to the Members of Parliament whose names have also been given.

Issues have been framed whether !he respondent, or any person with his connivance, printed, published and distributed pamphlet& and other matters connec\ed therewith.

in chief-examination, Jagat Narain, as R.W. 25, has stated

:hat he has never seen either of these pamphlets being distributed and t'1at 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 all. He has further reite-rated 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 Cen-tral Hall of Parliament and that he has not seen the pamphets except in Court. In cross-examinaiion, the witness was asked about the telephone call that he had made to Abdul Ohani 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 sugges-tions wer made that the witness attempted to dissuade Abdul Ghani Dar from filling the election petition on the grolmd that "! , serious consequences would follow from such action. Though , the witness admitted that hi~ had telephone talk with Abdul Ghani Dar, he denied various other suggestion~ put to him regard-ing the nature of the talk tha) took place between him and Abdul Ghani Dar. It was at that stage that the counsel for the elecion petitioner wanted the tape recording of the: talk that took place l>etween 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 cqnversation that he had with Abdul Ghani Dar. Objection was raised to receiv-ing the same as evidence ..

Mr. Daphtary, learned counsel for the respondent, raised two contentions regarding the admissibility of the tape-recorded con-versation between R.W. 25 and Abdul Ghani Dar: {ll The tape-recorded conversation cannot be admitted in evidence for contrar.l.icting 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 witness, the Court must be satiified 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.

Mr. Da,i>htary, learned counsel, did not dispute the correct--ness of two decisions of this Court to which referenc~ will be, made later, wherein the taped records of conversation had been admitted in evidence. But, according to him, in those cases the. tape recorded conversations were admitted in evidence to corro-borate the evidence given by witness before the Court, and not. to contradict his evidence.

Both the ground> of objection raised by Mr. Daphtary have; been controverted by Mr. Malik and by Mr. Sharma, learned counsel 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. Shanna, issues have been framed wb::ther undue influence has been exer-· cised by the respondent or by any other person with his conni-vance. 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 r·~tition that R.W. 25 is one of those who distributed the pamphl-ets in the Central Hall of Parliament with the connivance of the· respondent. The witness denied this allegation in chief-examina-tion and when certain suggestio11,s, 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 19' him in cross-examination, witness denied th.,m and, in that con-text the tape-re~orded conversation between the witness and Shri Abdul Ghani Dar assumes importance. Relying upon that tape recorded conversation, counsel urged that his client is entitled LO test the veracity of the witness and to imoeach the credit of the witness and satisfy the Court that the evidence given by the wit-ness before us is inconsistent or contrary to what he had stated on an earl~er occasion.

Ip 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 parti-cular, cl. (I ) thereof provides for 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 contra-dict answers to questions testing veracity, but Exception 2 states that if witness is asked any question tending to impeach his im-partiality and answers it by denying the ficts 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 witness may be im-rieached is dealt with in cl. ( 3) and that is by -proof of former

statements inconsistent 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 b.~ that cl. (3) of s. 146 m2y have to be read .along with the main s. 153 but clause ( 1) of s. 146 and exception (2) to s. 153 dealwith different aspects. Under s. 146(1) ques-.tions may be put to witness in cross-examination to test his vera-•City and, under Exception 2 to s. 153 witness may b.~ contradict-,ed when he denies any question tending to ir.1peach his impartiality. 'The object .of· the el.~ction petitioner to adduce the tape-recorded ·conversation as evidence is to impeach the testimony of the wit-·nes• 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 s.~rious consequences, and to establish that the evidence given in Court is quite contrary to the statements ;nade by him in the conversation thRt 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 rand Another v. H. M. Advocate(') tape-recorded conversation which took place between complainant and black-mailer was ·played before the jury and sought to be put in evidence by police 'Officer who had listened to th.e conversation as it was transmitted ·through the loudspeaker. Objections were raised to the admissi-bility of the said evidence. The learned trial Judge over-ruled the <objection as follows :

"New techniques and new devices are the order of the day. I can't conceive, for example, of the evidence -of ship's captain as to what he observed being turned down as inadmissible because he had used 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 audibi-lity or the intelligibility, or perhaps th.~ interpretation; of the results of the use of scientific method; but that is another matter, and that is matter of value, not of competency. The same can be said of visual observa-tion 1fy witness who says he sees something; his evi-dence can be criticised because of his sight or because of the son of glasses he is wearing, and so on, but all these matters are matters of value and not of competency."

Accordingly, the learned Judge allowed the police officer to give evidence as to wh.11t he heard on the tape recorder, which was played before the Jury.

On appeal to the High Court of Justiciary, 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 his hearing of the tape-recorded conversation was objected to. This objection was over-ruled by the High C_ourt of Judiciary stating that it is i;.om-petent 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 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 observe\! at p. 267 :

"The Inspector's eviden"1l of the conversation was as much primary evidence as the evidence from the replay-D ing of the tape recorder. Each received it at the same time, the one recording it in the human memory the other upon piece of tape."

From the above decision it is apparent that the tape itself is prim-ary and direct evidence admissible a> to what has been said and picked up by the recorder.

In R. v. Mills('). conversatian. which had been recorded on. tape between two of the persons was heard by police Officer who gave evidence that he ha~ !Jimself remembei:ed the various remarks which passed between those two persons which could be corro-borated 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 refer-red 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 dis-cussion in the judgment shows that 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 evid~n­tiary material obtained by the use of_ tape recorder without the concurrence of human being listening to the same sounds is admissible or is not admissible in evidence in criminal trial."

(2) [1960] Scots Law. Times 264

L 12Sup.Clf70-l 2

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 o_f the police officer giving evidence after refreshing his memory from tl1e tape.

The question again directly arose in R. v. Maqsud Ali('). In that case conversation which took place in Punjabi dialect bet-ween two persons and which had been recorded on the tape was pluyed before the jury and was admitted in evidence by the trial Judge. Objection was taken before the Court of Criminal Appeal rqwrding the admissibility in evidence of the tape recorded con-versation between the accused. Therefore the point that specific-[1 ]c ally arose before the. Court of Appeal was 'ls tape recordin6 as ~uch admissible iq evidence, as matter of law ?' After referring to the observations in Mills' Case(') the appellate Court noted that the question regarding the admissibility of tape record was not actually decided in that case. The decision of the High Court of .lusticiary in Hopes' Case(') was referred to and it was noted th<;lt 0 the evidence of the police officer who listened to the tape recorder ''"' hdd to be admissible. The Court said, at p. 469 :

"We think that the time has come when this cpurt should state its views of the law on matter which is likely to be increasingly raised as time passes. For many years now photographs hav«< 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 orinciple between tape recording and photograph. fn 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 tech-niques and.new devices, provided the accuracy of the recording can be proved and the voices recorded proper,_ ly identified: provided also that the evi.dence is relevan·t and otherwise admissible, we are satisfied that tape recording is admissible in. evidence. Such evidence II) [1965) 2 All.EK 46.\. (2) [1962] All E.R. 298. <3) [1960) Scots law Tin1cs 164.

should alway& be regarded with some caution and assess• ed in the light of all th~ circumstances of each case ~here can be no question\ of laying down. any exhaus-tive set of rules by which ' the admisslbility of such evidence should be judged."

In consequence, the CourL held that the tape-recorded conversa-tion was admissible in evidence, subject to the limitations men-tioned in the above extract

It will therefore be seen that though the question of admissi-bility of tape-recorded conversation had been left open in Miils' Case ( [1 ]) , the same was specifically considered and decided affirm a· lively in Maqsud /i's Case(').

Before we deal with the decisions of this Court bearing on

this point, it is necessary to advert to two decisions, oo_e of the Punjab High Court and the other, of the Calcutta High Court. In Ru11 Chand v. Mahabir Parshad(") the defendant, in answer to suit for recovery of certain sum of money on the basis of pro-p missory note, put forward plea that the original promissory note containing certain endorsement had been destroyed and had been replaced by another promissory nvte bearing the same date. The defendant attempted to substantiate this plea by the oral testimony of bro.ker but the latter declined to support him. The defendant requested the Court to permit hini to confront the broker witness with the conversation which had taken place between himself and the broker in regard to the destruction of the earlier promissory note and which ,had been faithfuHy recorded on 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 WIJ.!! confirmed. The Higl!!. Court relied upon f' s. 155 ( 3) of the Evidence Act and held that as the broker appear-ing as witness in the case before it had made statement to the defendant on 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 previous statement which was contradictory to the evidence given before the Court was made bv the witness to him. Dealing with the question whether record of such previous statement, as prepared by scientific instru-ment. could .be produced in Court as evidence, the High Court held that such taoe-recorded statement was admissible in evi-dence. and observed as follows :

"I am aware of no rule of evidence which prevents defendant who is endeavouring to shake the credit of

(I) [1962! 3 All E.R. 298. (2) [1965] 2 All E.R.. 464. l-11 A. tR. ~ 956 Punj. 173.

witness by proof of former inconsistent statements. from deposing that while he was engaged in conversa-tion with the witness tape recorder was in operation. or from producing the said tape-recorder in support of the assertion that certain statement was made in his presence."

This decision lays down two propos1t1ons : (i) that tape-recorded conversation is admissible in evidence and that (ii) if it contains previous statement made by witness, it can be used to contradict the evidence given before the Court.

Tn Manindra Nath v. Biswanath(';) the Calcutta High Court ·had to consider whether defendant was entitled to adduce in evidence 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 pr.~vious statement recorded therein could bG used to contradict the evidence given before the court. Afte1 '"eferring to Rup Chand's Case(') the Court observed at p. 192:

"Jf the plaintiff, while he is in the witness box, make, statement which is at variance with statement pre-viously made by him, the plaintiff may be asked whether he made such previous statement and if he denies hav-ing made the previous statement, such previous state-ment may be proved by the defendant. There. as in this care, it is alleged that the previous statements of the plaintiff were recorded in tape-recorder, those state-ments may be admitted in. evidence, if it is proved that they were made by the plaintiff and th~t the instrument accurately recorded those statements. The fact that the statements were recorded in tape-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.'·

The~ are two decisions of this Court bearing on this matter : S. Pratap Singh v. The State of Punjab(") and Yusuffal/i v. Maha-rashtra(').

Jn Pratap Singh's Case(') it has been held that rendering of tape-recorded conversation can be legal evidence by way of corroborating the statement of person who deposes that the other speaker and he c:rrried on the conversation and even of the state-

(2) A.l.R. 1956 Punj. rn.

(I) 67 S.W.N. 191.

(3) [1964] 4 S.C.R. 7533

(4) [1967] 3 S.C.R. 720.

ment of person who may uepose that he overheard the conversa-1ion _betwe.~n 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 ot~er facts which may be established in par!ic?lar case .. Th?ug~ there was d~erence of opinion in the maionty and mmonty Judgments regardmg certain other aspects which arose for consideration, so far as the admissibility of 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 in-admissible. Similarly, in the minority judgment also it is observed that tape-recordings can be legal evidence by way of corroborating the statements of 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 conversation on tape is not admis-,;ible in evidence for any purpose it was not necessary to pursue the matter further. ·

In Yusufjal/i's case(') the question was whether conversa-

tion between the complainant and person, who later figured as an accused on 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 complain-E ant was sufficiently corroborated by the tape-recorder and ob~erved at p. 723 :

"The contemporaneous dialogue between them formed part of the res gestae and is relevant and <1dmissible under s. 8 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape record of the dialogue corroborates his t.~stimony. 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 photograph of relevant incident, contemporaneous tape-record of relevant conversation is 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 ill Rtip Chan(i's Case(") and Mani11-1/ra Nath's Case(") and also to the earlier decision of this Court in Pratap Si11gh's Case(') where tape-recorded conversation had been admitted in evidence. The decision in Maqsud Ali's Case(") was also quoted with approval.

(2) A.l.R· 1956 Punj. 173.

(3) 67 c.w.N. 191

ill [19671 3 s.c.R. 120. .f4) [196~·) 4 S.C.R. 733.

(5) [1962) 3 All. E.R. 29~,

In particular, it will be noted that this Court, in the said decision, approved of the decision of the Punjab High Court in Rup Chwufs Case(') holding that tape-recording of former stat~ment of witness can be admitted in evidence to shake the 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 previous statement, made by person and recorded on rape, 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 wi!ness and also to impeach his impartiality. Apart from being used for corroboration, the f<Vidence is· admissible in respect of the other three last-mentioned matters, under s. 146 (I), 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 corrobo-ration but not for the purpose of contradicting the evidence given before the Court. If previous statement made by person can be used to corroborate his evidence given before the Court, rn 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(') wh~re the previous statements have been used to contradict the evidence given before the Court has been approved by this Court in Yusufjalli's Case(') dearly estab-lishes 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 Yusufjalli's Case("). 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 b,efore the Court under s. 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. Daphtarv. the expression 'which is liable to be contradicted' in clause (3) of s. 155 means 'which is relevant to the issue'. ln support of this contention, the counsel referred us to the decision of the Calcutta High Court in Khadijah Khdnum v. Abdool Kurreem Sheraji(') and pointed out that the said decision has been referred to in text-books on the Law of Evidence

(2J 67 c.w.N. 191. id\ 1890 I.LR. 17Cal. 344.

(t) A.l.R. 1956 Punj. 173,

(3) [1967] 3 S.C.R. 720.

viz., Wodroffe & Ameerali's Law of Evidence, Field's Law of Evidence and Sarkar's Law of Evidence. In the Calcutta deci-sion the Court has stated'.: '

"I am inclined to, think that in s. 155 (3) of the Evidence Act the wotds, 'which is liable to be contra-dicted,' mean 'which is relevant to the issue".

In our opinion, t1'e proposition has been too '!broadly laid down by the learned Judge. reference to the various clauses ins. 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 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 regard-ing 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.W1. 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 Bhogi/al v. Royal Insurance Co.([1]) to the effect that ss. 153 and 155 of the Evidence Act must be strictly construed. T~ere can be no con-troversy 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 Com-mittee, when dealing with s. 15 5 of the Evide.nce Act, makes no reference to the decision of the Calcutta High Court in Khadijah Khanum's Case(').

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 «ated to have taken place between the witness R.W. 25 ancl th.,, first petitioner in Election Petition No. 5 of 1969 (vi;;., 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

(I) A.I.R. [1928! P.C. 54. (2) 1890 l.L.R.17 Cal.344.

and lias not dealt with the weight to be attached to \bat evidence. It must also be pointed out that the question, whether the pam-phlets, 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.

R.K.P.S.