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We shall now show that the statement of R.W. 1 seems to find intrinsic support from the star witness of the appellants, viz., P.W. 7, the Deputy Commissioner. P.W. 7 is a high officer and, therefore, a respectable witness though, with due respect, we might say that his performance in this case has not been very satisfactory and his conduct leaves much to be desired. Without going into further details we might mention that his action in recording the statement of the witnesses on a tape recorder without taking the necessary precautions and safeguards cannot be fully justified. We are not able to understand as to why should he have taken the risk of recording the statements on a tape recorder knowing full well that the evidentiary value of such a tape recorded statement depends on various factors. Since P.W. was accompanied by his stenographer, there could have been no difficulty in recording the statement of the persons concerned by dictating their statements to him and after being typed, signed the same and taken the signatures of the deponent a certificate "Read over and accepted correct." If this was done nobody could doubt the authenticity of such statements. P.W. 7 admits his statement that he was not authorised or asked by any higher officer than him to record the statement at the spot in a tape recorder which obviously he did at his own risk. Furthermore, even if he had recorded the statements on a tape-recorder he ought not to have kept the cassette in his own custody but should have deposited it in the Record Room according to rules. By keeping the recorded cassette in his own custody, the possibility of tampering with or erasure of the recorded speech cannot be ruled out. Another serious defect in recording the statement on a tape recorder was that he had to take further care and precaution to see that the voice of the person whose statement was recorded should be fully identified. Here again, he seems to have fallen into an error resulting in a very anomalous position as some of the witnesses particularly those appearing for the respondent, have clearly denied their voices in the cassette and refused to identify the same. Others have partly admitted and partly denied their voices alleged to be those of the witnesses for the respondent. Finally, he himself admits that there were a number of voices which led to some disturbance and difficulties in putting Two and two together. All these manifest defects could have been avoided if in the usual course he would have administered oath to the witnesses, recorded their statements and got the same signed by them as also by himself. In a sanctimonious matter like this, it is extremely perilous to take a risk of this kind. Perhaps it any be said that by recording the statements on a tape recorder he save time as he had to go to the other polling booths also. That, however, does not solve the problem because even if the statements were recorded on a tape recorder they had to be transcribed and by the time the statements were ready the witnesses would not be available to append their signatures. Moreover, the direct method of recording the statement by dictating the same to the stenographer would have been as expeditious as recording on a tape recorder and transcribing the same thereafter. We might mention here that the recorded cassette was replayed in this Court and then transcribed and only the relevant statements of the respondent took quite a few hours. Thus, by his negligence he allowed the recorded statements to suffer from a manifest defect.

Mr. Kapil Sibal learned counsel for the appellants relied upon certain decisions of the English Courts and of this Court in regard to the admissibility of tape-recorded evidence. I shall refer to them.

In R. v. Maqsud Ali [1965] (2) All E.R. 464, the following observation has been made:

"The position on the evidence was that a very important part of that evidence was made up by a tape recording taken in circumstances that I must now indicate........... On April 29, 1964 the two appellants were at the Town Hall at Bradford and they were taken there into a room................... There is a reason to suppose that both of the appellants were not there on this occasion voluntarily................... In that room there had been set up a microphone behind a waste paper basket which was connected to a recorder in another room......... it is almost unnecessary to say that none but the police knew of the presence of the microphone in position................ so it ran for just one minute over the hour....... The tape, after it had been recorded, remained in the custody of the police and there is a suggestion that it was in any way interfered with. The conversation that took place between the two appellants was of course in their native tongue........ and................. the tape, it should now be stated, had a number of imperfections............ If the jury could come to the conclusion that here was something which amounted to a confession that they were both involved in the murder, it can be seen that this tape recording was a matter of the utmost importance. It was, indeed, highly important evidence and the defence sought strenuously to keep it out This is not the first time that the question of admissibility of tape recordings as evidence has come before the courts of this country. In 1956, in a trial at Wiltshire Assizes Hilbery, J., admitted as evidence a tape-recording of a conversation in Salisbury Police Station and further admitted a transcript of the recording to assist the jury.

In R.M. Malkani V. State of Maharashtra [1973] 3 S.C.R. 417, this Court observed:

"Tape recorded conversation is admissible, provided first that 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-record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photo graph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act.

The third piece of documentary evidence let in by the appellants for proving the first part of the incident in the Kalaka polling station is the tape-record (Ex.P.W. 7/1) of which Ex. P`l is a transcript prepared under the instructions and mostly in the presence of P.W. 7 by his Stenographer. P.W. 7 has stated in his evidence that inside the polling station at Kalaka he tape-recorded the version given by the officers about the incident in that polling station in Ex.P.W. 711, and he compared the transcript (Ex.P-1) prepared by his Stenographer with the original and found it to be a correct reproduction of the original, and he has authenticated it by signing it and that there are some gaps in Ex.P-1 as the voices in the tape were not clear and audible. He has also stated that the tape-recorder which had been supplied to him by the Government, the tape Ex.P.W. 7/1 and the transcript Ex.P-1 remained in his custody throughout and had not been deposited by him in the election office. He has not been questioned as to why he retained the tape, the tape-recorder and the transcript in his custody without depositing them in the election office. Therefore, no adverse inference can be drawn against P.W. 7 or the appellants from the fact that the tape, the tape-recorder and the transcript had not been deposited by P.W.7 in the election office. No suggestion has been made to P.W. 7 in cross-examination that he had in any way tampered with the tape-record (Ex.P.W. 7/1) and he has stated in his examination in chief that a portion of the tape relating to the incident at Burthal Jat polling station has been erased inadvertently by his own voice. The learned trial Judge has rejected the tape-record (Ex.P.W. 7/1) holding (1) that it is tampered with later, disbelieving the evidence of the P.W. 7 that a portion of what he had recorded at the Burthal Jat polling station was erased by his own voice inadvertently on the some day and (2) that the authenticity of the transcript (Ex.P.1) has not been proved with definiteness. It is not reasonable to reject the tape merely because some portions thereof could not be made out on account of noise and interference not only outside but also inside the polling station when what was being elicited by P.W. 7 from the polling officers and the police-man (R.W. 3) was being H recorded. In R. v. Maqusud Ali (supra) tape recorded conversation of the two accused in a murder case has been held to be admissible in evidence for the purpose of proving the guilt of the accused and it has been observed that the tape- recording was a matter of the utmost importance and that it is indeed the highly important piece of evidence which the defence strenuously sought to keep out. In R. v. Robson (supra) in which reference has been made to K. v. Maqusud Ali (supra) tape-recording had been held to be admissible in the case in which the accused was charged with corruption, rejecting the plea of the defence that it was inadmissible inter alia because in many places it was un- intelligibIe though it was however not contended that the tape-recording was as such inadmissible in evidence of what was recorded on it .