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(Emphasis supplied) The Apex Court in the case of R.M.MALKANI (supra) has held as follows:

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22. In Presidential Election case, questions were put to a witness Jagat Narain that he had tried to dissuade the petitioner from filing an election petition. The witness denied those suggestions. The election petitioner had recorded on tape the conversation that had taken place between the witness and the petitioner. Objection was taken to admissibility of tape recorded conversation. The Court admitted the tape recorded conversation. In Presidential Election case, the denial of the witness was being controverted, challenged and confronted with his earlier statement. Under Section 146 of the Evidence Act questions might be put to the witness to test the veracity of the witness. Again under Section 153 of the Evidence Act a witness might be contradicted when he denied any question tending to impeach his impartiality. This is because the previous statement is furnished by the tape recorded conversation. The tape itself becomes the primary and direct evidence of what has been said and recorded.

23. 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 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 photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. The conversation between Dr Motwani and the appellant in the present case is relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about any portion of the conversation being erased or mutilated. The appellant was given full opportunity to test the genuineness of the tape recorded conversation. The tape recorded conversation is admissible in evidence."

(Emphasis supplied) The Apex Court holds that a tape recorded conversation is admissible, provided the conversation is relevant to the matter in issue. The learned single Judge of the High Court of Rajasthan in the case of INDER CHAND (supra) while dealing with the same issue following the judgment in R.M. MALKANI of the Apex Court has held as follows:

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11. In my humble opinion, a tape-record of a relevant conversation is a relevant fact and is admissible under Sec. 7 of the Evidence Act. The manner and mode of its proof and the use thereof in a trial is a matter of detail and it can be used for the purpose of confronting a witness with his earlier tape recorded statements. It may also be legitimately used for the purpose of shaking the credit of a witness. In the present case, when PW 5 Chhaganlal refused to hear his previous tape recorded statement, learned Additional Sessions Judge ought to have allowed the defence counsel to put question and in case, he admits after hearing the tape-recorded conversation then he ought to have allowed the defence counsel to confront PW 5 Chhaganlal with his earlier tape recorded conversation. In case, he refused to hear the tape- recorded conversation then learned Additional Sessions Judge ought to have taken the step for identification of the tape voice of PW 5 Chhaganlal, inasmuch as, when the voice is denied by the alleged maker i.e. PW 5 Chhaganlal, a comparison of his voice becomes inevitable and proper identification of his voice must be proved by a competent expert witness."

(Emphasis supplied) The High Court of Rajasthan holds, a tape recorded conversation is a relevant fact and should be made admissible. The manner and its mode of its proof is a matter of evidence in the trial. Mere production of any electronic evidence would not amount to its proof which has to be nonetheless proved after its production.

11. In the light of the judgments quoted supra, as also the unequivocal fact that PW-2 to PW-4 were examined and they had given statements which are important to the case of the petitioner, the said electronic statement on the pretext of it not being a previous statement, in the considered view of the Court, cannot be denied. Acceptance or otherwise, proving or otherwise is a matter of evidence. Withholding of evidence in defence would undoubtedly defeat the voyage towards discovery of truth in a criminal trial.