Nilesh Dinkar Paradkar vs State Of Maharashtra

E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 537 OF 2009

Nilesh Dinkar Paradkar ... Appellant (s)

VERSUS

State of Maharashtra ...Respondent (s)

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This appeal is directed against the judgment and

order of the Bombay High Court dated 21st August,

2008 passed in Criminal Appeal No. 1044 of 2006

whereby the High Court dismissed the appeal by

confirming the conviction and sentence imposed on

the appellant (A5) by the Special Judge of the

Maharashtra Control of Organized Crime Act, 1999

(hereinafter referred to as "MCOC Act") in Special

Case No. 3 of 2005.

2. The aforesaid appeal came up for hearing along with

Criminal Appeal No. 1040 of 2006 filed by original

accused No. 1, Vinod Sitaram Yadav @ Bapu and

the original accused No.3, Jagdish Bhaskar Shetty

@ Raghu. Criminal Appeal No. 1048 of 2006 has

been filed by original accused No.4, Amit Suryakant

Dalvi and Criminal Appeal No. 1049 of 2006 has

been filed by original accused No.2, Vishwanath

Atmaram Jadhav.

PROSECUTION CASE

3. According to the prosecution, accused Nos. 1, 2, 3

and 5 are active members of the organized crime

syndicate of Chhota Rajan. Accused No. 4 has

aided, abetted and conspired with accused Nos. 1,

2, 3 and 5 in commission of various offences

punishable under the MCOC Act. It had come to

the notice of the police that there was a conspiracy

to eliminate a prominent businessman of Mumbai,

namely Bharat Shah. The plan was to kill him at

the pan shop near `Mehta Bhuvan'. The office of

2

Bharat Shah is situated at `Mehta Bhuvan', Charni

Road, Mumbai. In order to successfully carry out

the assassination, movements of Bharat Shah were

kept under close watch. His office timings were

communicated to these accused through telephone

no. 0060133402008 by Bharat Nepali. The

information about the conspiracy was received on or

before 14th October, 2004 by D.C.P. (Detection), Mr.

Dhananjay Dattatraya Kamlakar, PW-42 from his

sources. He was informed that gangster Chhota

Rajan, his gang members, and Bharat Nepali were

communicating with the associates and other

members of their syndicate on the aforesaid

telephone number. According to the information of

PW-42, the telephone number was of Malaysian

origin. Although, the aforesaid telephone number

was under surveillance of P.S.I. Vijay Dalvi (PW-

17) since 1st October, 2004, on receipt of the definite

information with regard to the conspiracy, a request

was put up to the Additional Chief Secretary (Home)

seeking permission to intercept the aforesaid

3

telephone number. The request was made on 14th

October, 2004 and it was approved on 20th October,

2004.

4. Although the tapping of the aforesaid telephone had

been officially approved since 20th October, 2004,

P.S.I. Dalvi (PW-17) did not hear any worthwhile

conversation till 28th October, 2004. On that day,

he intercepted and recorded a conversation on the

aforesaid telephone number. According to the

prosecution, this was a conversation between the

absconding accused Bharat Nepali on one hand and

the accused Nos. 1, 2 and 5 on the other hand. The

duration of the conversation recorded was of 9.16

minutes. The recorded conversation revealed a

conspiracy to spread terror in the Dawood group in

Mumbai. The conversation was also about the

nature of the weapons to be used; the manner in

which the assassination was to be carried out;

behaviour of the assassin in the completion of the

alleged crime; use of the weapons, i.e., one being

4

.45 revolver and the other three being .38 bore

revolver. The conversation on the telephone having

been recorded, PW-17 noted the date and time of

the cassette. He took the cassette to the senior

officer, D.C.P. Kamlakar, PW-42. On receipt of

cassette, D.C.P. Kamlakar played the cassette and

heard the details about the conspiracy.

5. It is further the case of the prosecution that five

accused and Bharat Nepali have contacted each

other on their respective cell phones. The entire

conspiracy was hatched on the cell phones. The

police had, therefore, obtained printouts of the cell

phones of the accused from the concerned

telephone companies. The numbers of those cell

phones of the accused were as follows:-

Accused No.1 9819861417

Accused No.2 9819240297, 38096524

Accused No.3 9890299354

Accused No.4 38950501

Accused No.5 9892849523, 9892367596,

5

9892296496, 9892295687

Bharat Nepali 0060133402008

(absconding accused)

6. It appears that Amit Dalvi, accused No. 4 had

rented a flat on Leave and Licence basis, on the first

floor of a building known as `Ambika Niwas',

Girgaum (Mumbai). The room had been taken in

the name of Sachin Patil. The Leave and Licence

agreement was signed on 17th October, 2004. All

the accused were regularly using the aforesaid

premises.

7. On 7th November, 2004, P.I. Nagesh Lohar received

some reliable information at about 5.00 p.m. that

members of Chhota Rajan gang were staying in

Girgaum area. He was also informed that they had

planned to kill a prominent businessman in the

locality (Bharat Shah) on the directions of Bharat

Nepali, who was the henchman of Chhota Rajan.

The Police Inspector Lohar communicated this

information to his staff and asked them to assemble

6

at 5.30 a.m. on the next day morning as the

informant had told him that he was working on the

information and will confirm the same only next

morning. On 8th November, 2004, the informant

again arrived at the office of P.I. Lohar at about 5.00

a.m. and supplied further information. He stated

that about five members of the Chhota Rajan gang

were residing in Girgaum and they were in

possession of lethal weapons. Name of one of the

members was Mr. Bapu, accused No. 1.

8. Police Inspector, Lohar called the officers and staff,

who were present in the office and told them that

they would have to act upon the information. He

told one of the Constable Gaikwad, to go and bring

two respectable Panchas. Consequently, PW-1, Hiro

Khatri was joined as a Panch witness. He was

introduced to the police party as well as the

informant. He was told the purpose of raid and why

the police party has assembled. On 8th

November, 2004, raid was duly conducted at the

7

rented premises. They reached first floor and found

the door of the flat was half open. Standing next to

the door, P.S.I. Jadhav listened to the conversation

within the flat. He had heard one male voice saying

the following words:-

"As the game was not hot, Nana and Bharat

Nepali were frustrated. That man is going to

the office. Nilesh Paradkar (A5) had called us

to the spot at 10.00 a.m. He was going to come

along with Ajay. So we must finish him

today." He heard another male voice saying

that "we will finish him today. You cause him

to fall down by firing four bullets in his chest

and he will fire four five shots in his head."

9. In the mean time, P.I. Lohar also reached the first

floor and on signal being given, they entered the

room. All the four accused persons were sitting on

the mat. They were immediately apprehended. P.I.,

Lohar disclosed his identity and asked for

explanation about their presence in the room. They

could not give any satisfactory explanation. Each of

the four persons were then searched.

8 10. Accused No.1 was searched by A.P.I. Pasalwar,

PW-38. The search of accused No.1 revealed that

he was in possession of one pistol of .45 bore of Colt

make which was tucked on the right side waist

portion of his pant. On opening its magazine, the

pistol was found to contain seven live cartridges. A

cell phone was also recovered from the shirt pocket

of A1. On being asked, he disclosed his telephone

number as 9819862417. A.P.I. Pasalwar opened

the cell phone and removed the sim card. On

further search of this accused, 13 live cartridges

with inscription of .45 were found from the trouser

pocket of this accused. The pocket also contained a

chit with some mobile phone numbers. The

accused was also having two colour photocopies of

the photographs of an individual. On the reverse

side of the photocopies, some numbers and words

BMW Neela (blue), Lexus 25, 123 Kala (black) were

written. Search was also conducted of A2, which

led to the recovery of .38 bore revolver of Smith and

Wesson Company. It had six chambers of the pistol

9

loaded with six live cartridges. One blue colour cell

phone of Nokia company model 2100 was recovered

from the shirt pocket. His leather wallet also

contained a chit with mobile numbers. He was also

carrying color photocopies of photograph of same

person. In this photocopy, face of the person was

encircled. On the reverse side of the said

photographs, words were written in Devnagari script

"Charni road station javal, Mehta Bhuvan". He also

disclosed his cell phone number as 9819240297.

Similar search of accused No.3 produced .38 bore

revolver kept into left side of his pant waist. The

revolver was of Smith and Wesson make. It had five

chambers loaded with five live cartridges. He was

also carrying a silver colour cell phone of Nokia

company. This accused disclosed his mobile

number as 9890299354. This accused was also

carrying a chit with names and phone numbers of

Bharat Nepali, Balu Dhokare, Visha and Bapu. He

was also carrying photocopies of the colour

photograph of the same person as the one found

10

with accused Nos. 1 and 2. Under the photocopy

car No. BMW MH01 T125 was written. It also

carried the same words `Mehta Bhuvan', Opera

House. The search of accused No.4 similarly

produced a cell phone and photograph and the chit.

Number of other articles were also recovered lying in

the rented room. The four accused were arrested

and brought to the police station.

11. Thereafter formalities of registration of crime under

DCB CID were completed. CR No. 258 of 2004 was

registered with V.P. Road Police Station, Mumbai for

offences punishable under Sections 302, 115, 120

(B) of IPC and under Section 3, 7, and 25 of the

Arms Act. Thereafter, approval was also granted on

20th November, 2004 to apply the provisions of

MCOC Act.

12. On 25th November, 2004, accused No.2, Vishwanath

Jadhav and accused No.4, Amit Dalvi voluntarily

made statements before the I.O. Valishetty

11

indicating their willingness to make confession

statements. It appears that first part of the

confession of accused No.4 was recorded on 29th

November, 2004 and the second part on 1st

December, 2004. Similarly, the confessional

statement of accused No. 2, Vishwanath Jadhav

was recorded on 30th November, 2004 and on

1st December, 2004. On 7th December, 2004 the

identification parade was held in so far as the

accused Nos. 1, 2, 3 and 4 were concerned, PW-2

and PW-12 identified accused No. 4 as the person,

who had been seen by them during the time of grant

of lease and licence in respect of the rented room in

`Ambika Niwas' belonging to mother of PW-2. Both

the confession statements were denied by A2 and

A4 on 17th December, 2004 on the ground that it

had been obtained under duress and threats that

their family members would be falsely involved as

accused in the crime.

12 13. On verification of the sim cards of the accused, it

was found that only the sim cards of accused No. 4

stood in his own name. The sim cards allegedly

belonging to accused No.2 Vishwanath stood in the

name of one Sandeep Mhatre and Ayub Bakar. The

names of sim card holders in the cell phones

recovered from accused Nos. 3 and 5 were not

brought on record. The record also indicates that

the print out in respect of telephone No.

9892367596 allegedly used by the appellant, i.e.,

accused No.5 was received by the police on or about

14th January, 2005. The print out indicates that at

about 5.55 p.m., there was a call of about 9.16

minutes on the telephone. The number was

allegedly used by absconding accused Bharat

Nepali. The print out of Cell No.

0060133402008 was forwarded to the police by the

BSNL by letter dated 18th January, 2005(Ex.71).

This print out also confirms that there was a

telephone conversation at 5.55 p.m. on 28th

13

January, 2004 of about 9.15 minutes. The number

mentioned there was that of the appellant.

14. We may now briefly notice the further facts as

brought on record by the prosecution. On 15th

January, 2005, PW-41, A.C.P. Vinayak Kadam

asked PW-42, D.C.P. (Detection), Mr. Kamlakar as

to whether he had intercepted any communication

on telephone number 0060133402008. On 17th

January, 2005, Mr. Kamlakar, D.C.P.

(Detection), PW-42 asked P.S.I. Dalvi, PW-17 to

handover the sealed cassette to A.C.P. Kadam

on 18th January, 2005. The sealed cassettes were

duly handed over to A.C.P. Kadam on 18th

January, 2005. A.C.P Kadam was aware that

A.C.P. Tejasingh Chavan, PW-18 had arrested

absconding accused Bharat Nepali on 11th

February, 1997. He was also aware that Jagdish

Kulkarni, PW-19 had earlier arrested the appellant

on 2nd March, 2002. The Cassette was, therefore,

duly played in the presence of Panchas and the

14

aforesaid police officers. In this manner, the voice

test identification was stated to have been

conducted. The voice was also said to have been

identified as belonging to the appellant and to

absconding accused Bharat Nepali by PW-18, ACP

Tejasingh Chavan and PW-19, Jagdish Kulkarni. It

is also the case of the prosecution that A.P.I. Raut,

who was Investigating Officer, identified the voice of

A2, Vishwanath Jadhav. A.P.I. Pasalwar, PW-38, is

stated to have identified the voice of accused Vinod

(A1). The Panchnama was duly prepared.

Transcript of the conversation incorporated in the

Panchnama (Ex.45) was proved through Panch Anil

Shukla, PW-11.

15. It is further the case of the prosecution that the

appellant was arrested on 30th March, 2005 in

connection with another case registered at Nerul

Police Station. His custody was duly transferred to

the present case on 12th April, 2005. After obtaining

the custody, a further identification parade was held

15

on 16th April, 2005 in respect of the appellant. It is

a matter of record that Vithal Saliyan, PW-7 was the

only witness, who was put up as an identification

witness. This witness duly identified the appellant

as the person who used to visit `Zunka Bhakar'

Stall, situated near the office of the victim, Mr.

Bharat Shah. It is however, noteworthy that this

witness could not identify the appellant in Court.

16. It is further the case of the prosecution that

on 13th May, 2005, the appellant made a voluntary

statement to the effect that he had concealed the

revolver in Sawantwadi Town in District

Sindhudurga. According to the prosecution, the

appellant led the police to the house where his

cousin sister Afroza was staying. Behind the south

side of the house, he dug out a weapon which was

kept in a plastic bag and buried in the soil. The

revolver so discovered was a .38 bore revolver. It

was seized and wrapped in a plastic cover sealed by

the police. On completion of the investigation, the

16

Commissioner of Police granted sanction for

prosecution of appellant on 6th July, 2005. On

receipt of the sanction, additional charge sheet was

filed against the appellant on 7th July, 2005.

17. In due course, charges were framed against all the

accused on 8th December, 2005 under relevant

provisions of MCOC Act, IPC, and Arms Act. Since

all the accused had pleaded not guilty, they were all

put on trial.

18. The Trial Court convicted all the five accused as

under:-

"1) Charge head firstly is not considered as it

is repetition in charge heads secondly,

thirdly and fifthly.

2). Accused Nos. 1 to 5 are held guilty for the

offence punishable under Section 3(1)(iii)

r/w Sec. 3(2) of the MCOC Act, 1999 and

are sentenced to suffer RI for 5 (five)

years and to pay a fine of Rs.5,00,000/-

(Five lacs), each, in default, to suffer

further RI for 1 (One) year.

3) Accused Nos. 1, 2, 3 and 5 are held guilty

for the offence punishable under

Section 3(4) of the MCOC Act, 1999 and

are sentenced to suffer RI for 7 (seven)

years and to pay a fine of Rs.5,00,000/-

17 (Five lacs), each, in default, to suffer

further RI for 1 (one) year . Accused No.4

is not held guilty U/Sec.3(4) of the MCOC

Act and is acquitted from the said charge.

4) Accused Nos. 4 and 5 are held guilty for

the offence punishable under Section 3(5)

of the MCOC Act, 1999 and are

sentenced to suffer RI for 3(three) years

and to pay a fine of Rs.2,00,000/-(two

lacs), each in default, to suffer further RI

for 6(six) months. Accused Nos. 1, 2 and

3 are not held guilty U/Sec.3(5) of the

MCOC Act, 1999 and are acquitted from

the said charge.

5) Accused Nos. 1, 2, 3, 4 and 5 are held

guilty for the offence punishable under

Section 120-B r/w Sec.302 r/w Sec.115

of IPC are sentenced to suffer RI for 3

(three) years and to pay a fine of

Rs.10,000/-(ten thousand), each. In

default, to suffer further RI for 6 (six)

months.

6) Accused Nos. 4 and 5 are held guilty for

the offence punishable under Section 419

r/w Sec.120-B of IPC and are sentenced

to suffer RI for 1 (one) year. Accused Nos.

1, 2 and 3 are not held guilty U/Sec.419

r/w Sec.120-B of IPC and are acquitted

from the said charge.

7) Accused Nos. 1, 2 and 3 are held guilty

for the offence punishable under Sec.3

r/w Sec. 25 of the Indian Arms Act, 1959

and are sentenced to suffer RI for 3

(three) years and to pay fine of Rs.5,000/-

(five thousand) each, in default, to suffer

further RI for 6(six) months. Accused

No.4, is not held guilty U/Sec. 3 r/w 25

of the Indian Arms Act and is acquitted

from the said charge.

8) Accused No.5 is not held guilty for the

offence punishable under Sec.3 r/w

18 Sec.25 of the Indian Arms Act, 1959 and

is acquitted from the said charge.

9) Accused No.4 is held guilty for the offence

punishable under Sec.36 r/w Sec.30 of

the Indian Arms Act, 1959 and is

sentenced to suffer RI for 6 (six) months.

10) All the substantive sentences to run

concurrently.

11) Accused are entitled to set off for the

period already undergone in custody."

19. From the above, it is evident that the trial court

acquitted the appellant, herein of charges under

Section 3 read with Section 25 of the Indian Arms

Act.

20. The aforesaid judgment and order of conviction and

sentence was challenged by the accused Nos. 1 and

3 in Criminal Appeal No. 1040 of 2006, by accused

No.5 (appellant herein) in Criminal Appeal No. 1044

of 2006, by accused No.4 in Criminal Appeal No.

1048 of 2006 and by accused No.2 in Criminal

Appeal No. 1049 of 2006.

21. All the appeals were heard together and disposed off

by a common judgment dated 21st August, 2008.

19 The High Court was pleased to allow the appeals of

original accused Nos. 1, 2, 3 and 4. They were

acquitted of all the charges leveled against them.

However, the appeal filed by the appellant was

dismissed by confirming the conviction and

sentence awarded by the Special Court. It may also

be noteworthy here that the acquittal of appellant

under Section 3 read with Section 25 of the Arms

Act was not challenged by the prosecution/State.

Therefore, the findings and acquittal regarding the

same have become final and binding.

22. Aggrieved by the judgment of the High Court in

Criminal Appeal No. 1044 of 2006, the appellant

has filed the present special leave petition.

23. We have heard the learned counsel for parties.

24. Mr. Shekhar Naphade submitted that the High

Court disbelieved the prosecution version in so far

as the accused A1 to A4 are concerned. Having

20

disbelieved the prosecution version against A1 to

A4, the High Court committed a grave error in

upholding the conviction of the appellant. He

submits that the evidence against A1 to A4 and the

appellant is identical. The High Court has made a

distinction in the case of appellant only on the basis

of the voice identification evidence. Learned counsel

further submitted that the High Court has

committed a grave error in treating the voice

identification evidence as substantive evidence.

Such evidence could at best be used as

corroboration of the other independent evidence. In

support of the submission, learned counsel relied

on the judgments in Mahabir Prasad Verma Vs. Dr.

Suri nder kaur1 , Ram Singh And Ors. Vs. Col. Ram

Singh 2 and People's Union for Civil Liberties

(PUCL) Vs. Union of India & Ors.3

1 1982 (2) SCC 258

2 1985 (Supp.) SCC 611

3 1997 (1) SCC 301 21

25. We are of the considered opinion that there is much

merit in the submissions made by Mr. Naphade.

While acquitting accused Nos. 1 to 4, the High

Court recorded that the defence had succeeded in

creating a grave doubt about the veracity of search

and seizure alleged to have taken place on 8th

November, 2004. This conclusion has been reached

by the High Court on appreciation of the evidence

on the record. The High Court disbelieved the

prosecution version with regard to the entire

sequence of events leading to the raid. The High

Court observed as follows:-

"Thus, in my view the defence have succeeded

in creating a reasonable doubt about the

prosecution case that accused Nos. 1 to 4 were

spotted and apprehended at Ambika Niwas

building on 8.11.2004. The defence case that

the accused were in fact picked up on

3.11.2004 by the police appears to be very

probable. Unfortunately, if the defence version

is found to be probable, then the entire case of

the prosecution regarding the finding of

various incriminating articles from the persons

of the accused for the first time on 8.11.2004

and the seizure of three loaded revolvers, live

cartridges, four zerox copies of the

photographs of the victim, four mobiles and

four slips are rendered suspect and must also

be therefore, disbelieved. It would have been

22

far better for the prosecution if the

investigation would have recorded the true and

correct facts. It may be mentioned that as

regards the search and seizure said to have

been carried out on 8.11.2004, not a single

independent witness has been examined.

Admittedly, there were several neighbours and

the statements of some of these persons were

alleged to have been recorded but none of

these persons were produced as witnesses in

the trial. The accused Nos. 1, 2, 3 and 4

herein must therefore, get benefit of doubt as

regards the circumstance of finding

incriminating articles during the search and

seizure of articles said to have been seized by

the police on 8.11.2004."

26. The trial court had discarded the voice identification

of accused Nos. 1 and 2. The High Court did not

see any reason to differ with the aforesaid finding.

The High Court even after personally hearing the

conversation between the Bharat Nepali on the one

hand and accused Nos. 1 and 2 on the other hand,

disbelieved the voice identification. It was held to

be not established beyond reasonable doubt.

Similarly, with regard to the alleged confession

made by accused Nos. 2 to 4, the High Court

observes that "Both these confessions make clear

reference to the evidence of search and seizure

23

which according to the prosecution took place on 8th

November, 2004 and which does not appear to be

true". Both the confessions were rejected as a

whole. The High Court even disbelieved the story of

the prosecution with regard to accused No.4 taking

room at `Ambika Niwas' on Leave and Licence basis.

As a consequence of the aforesaid facts, accused

Nos. 1, 2, 3 and 4 were acquitted.

27. In our opinion, these conclusions recorded by the

High Court have destroyed the entire substratum of

the prosecution case. Having disbelieved the entire

prosecution version, the High Court proceeds to

distinguish the case of the appellant. The only

additional circumstance relied upon by the High

Court against the appellant is that his voice was

identified by the officer Jagdish Kulkarni, PW-19,

who had taken him in custody. The voice of Bharat

Nepali was also identified by PW-18, A.C.P.

Tejasingh Chavan.

24 28. We are of the considered opinion that the approach

adopted by the High Court was wholly erroneous.

Having disbelieved the voice identification in the

case of accused Nos. 1 and 2, there was no reason

to adopt a different yardstick in the case of the

appellant herein. The High Court discarded the

evidence of PW-36, A.P.I. Dilip Raut and PW-38,

A.P.I. Pasalkar mainly on the ground that

they were accompanying the raiding party

on 8th November, 2004 and had not heard the voice

of accused Nos. 1 and 2 prior thereto. Another

reason given by the High Court is that these officers

being members of the investigating team were

interested in successful completion of the

investigation. But the same yardstick was not

applied to the voice identification of absconding

accused Bharat Nepali by Tejasingh Chavan, PW-

18. He was also attached to DCP CID when the

present offence was registered. He would, therefore,

also be equally interested in successful completion

of the investigation.

25 29. Similarly, voice identification of the appellant by

Jagdish Kulkarni, PW-19 would also suffer from the

same weakness as he was also attached to the office

of DCP CID. The High Court also ignored the fact

that the witnesses were being asked to identify the

voice of Bharat Nepali, which they had last heard in

the year 1997. Similarly, PW-19, Jagdish Kularni

had only heard the voice of appellant in the year

2002.

30. In our opinion, the evidence of voice identification is

at best suspect, if not, wholly unreliable. Accurate

voice identification is much more difficult than

visual identification. It is prone to such extensive

and sophisticated tampering, doctoring and editing

that the reality can be completely replaced by

fiction. Therefore, the Courts have to be extremely

cautious in basing a conviction purely on the

evidence of voice identification. This Court, in a

number of judgments emphasised the importance of

26

the precautions, which are necessary to be taken in

placing any reliance on the evidence of voice

identification. In the case of Ziyauddin

Burhanuddin Bukhari Vs. Brijmohan Ramdass

M ehra & Ors.4 , this Court made following

observations:-

"We think that the High Court was quite right

in holding that the tape-records of speeches

were "documents", as defined by Section 3 of

the Evidence Act, which stood on no different

footing than photographs, and that they were

admissible in evidence on satisfying the

following conditions:

"(a) The voice of the person alleged to be

speaking must be duly identified by the

maker of the record or by others who

know it.

(b) Accuracy of what was actually recorded

had to be proved by the maker of the

record and satisfactory evidence, direct or

circumstantial, had to be there so as to

rule out possibilities of tampering with

the record.

(c) The subject-matter recorded had to be

shown to be relevant according to rules of

relevancy found in the Evidence Act."

(emphasis supplied)

4 (1976) 2 SCC 17

27

In the case of Ram Singh & Ors. Vs. C ol. Ram Singh5 ,

again this Court stated some of the conditions necessary

for admissibility of tape recorded statements, as follows:-

"(1) The voice of the speaker must be duly

identified by the maker of the record or

by others who recognise his voice. In

other words, it manifestly follows as a

logical corollary that the first condition

for the admissibility of such a statement

is to identify the voice of the speaker.

Where the voice has been denied by the

maker it will require very strict proof to

determine whether or not it was really the

voice of the speaker.

(2) The accuracy of the tape-recorded

statement has to be proved by the maker

of the record by satisfactory evidence --

direct or circumstantial.

(3) Every possibility of tampering with or

erasure of a part of a tape-recorded

statement must be ruled out otherwise it

may render the said statement out of

context and, therefore, inadmissible.

(4) The statement must be relevant

according to the rules of Evidence Act.

(5) The recorded cassette must be carefully

sealed and kept in safe or official custody.

(6) The voice of the speaker should be clearly

audible and not lost or distorted by other

sounds or disturbances."

In Ram Singh's case (supra), this Court also notices

with approval the observations made by the Court of

5 1985 (Supp) SCC 611

28

Appeal in England in the case of R. Vs. Maqsud Ali6 . In

the aforesaid case, Marshall, J. observed thus:-

"We can see no difference in principle between

a tape-recording and a photograph. In 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 techniques

and new devices, provided the accuracy of the

recording can be proved and the voices

recorded properly identified; provided also that

the evidence is relevant and otherwise

admissible, we are satisfied that a tape-

recording is admissible in evidence. Such

evidence should always be regarded with some

caution and assessed in the light of all the

circumstances of each case. There can be no

question of laying down any exhaustive set of

rules by which the admissibility of such

evidence should be judged."

To the same effect is the judgment in the case of R. Vs.

Robson 7 , which has also been approved by this Court in

Ram Singh's case (supra). In this judgment, Shaw, J.

delivering the judgment of the Central Criminal Court

observed as follows:-

"The determination of the question is rendered more difficult because tape-recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts.

6 (1965) 2 AER 464

7 (1972) 2 AER 699

29

31. Chapter 14 of Archbold Criminal Pleading,

Evidence and Practice8 discuss the law in England

with regard to Evidence of Identification. Section 1

of this Chapter deals with Visual Identification and

Section II relates to Voice Identification. Here again,

it is emphasised that voice identification is more

difficult than visual identification. Therefore, the

precautions to be observed should be even more

stringent than the precautions which ought to be

taken in relation to visual identification. Speaking

of lay listeners (including police officers), it

enumerates the factors which would be relevant to

judge the ability of such lay listener to correctly

identify the voices. These factors include:-

"(a) the quality of the recording of the

disputed voice,

(b) the gap in time between the listener

hearing the known voice and his attempt

to recognize the disputed voice,

(c) the ability of the individual to identify

voices in general (research showing that

this varies from person to person),

8 2010 edition at pg: 1590-91

30

(d) the nature and duration of the speech

which is sought to be identified and

(e) the familiarity of the listener with the

known voice; and even a confident

recognition of a familiar voice by a way

listener may nevertheless be wrong."

The Court of Appeal in England in R Vs. Chenia 9 and R.

Vs. Fl ynn and St. John10 has reiterated the minimum

safeguards which are required to be observed before a

Court can place any reliance on the voice identification

evidence, as follows:-

"(a) the voice recognition exercise should be

carried out by someone other than the

officer investigating the offence;

(b) proper records should be kept of the

amount of time spent in contact with the

suspect by any officer giving voice

recognition evidence, of the date and time

spent by any such officer in compiling any

transcript of a covert recording, and of any

annotations on a transcript made by a

listening officer as to his views as to the

identify of a speaker; and

(c) any officer attempting a voice recognition

exercise should not be provided with a

transcript bearing the annotations of any

other officer."

In America, similar safeguards have been evolved

through a series of judgments of different Courts. The

9 [2003] 2 Cr. App. R. 6 CA

10 [2008] 2 Cr.APP.R.20,CA

31

principles evolved have been summed up in American

Jurisprudence 2d (Vol. 29) in regard to the admissibility

of tape recorded statements, which are stated as under:-

"The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows:

(1) a showing that the recording device was capable of taking testimony;

(2) a showing that the operator of the device was competent;

(3) establishment of the authenticity and correctness of the recording;

(4) a showing that changes, additions, or deletions have not been made;

(5) a showing of the manner of the preservation of the recording;

(6) identification of the speakers; and

(7) a showing that the testimony elicited was voluntarily made without any kind of inducement.

... However, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said. (emphasis supplied)"

32. This apart, in the case of Mahabir Prasad Verma

Vs. Dr. Surinder Kaur11 , this Court has laid down

that tape recorded evidence can only be used as

11 (1982) 2 SCC 258

32

corroboration evidence in paragraph 22, it is

observed as follows:-

"Tape-recorded conversation can only be relied

upon as corroborative evidence of conversation

deposed by any of the parties to the

conversation and in the absence of evidence of

any such conversation, the tape-recorded

conversation is indeed no proper evidence and

cannot be relied upon. In the instant case,

there was no evidence of any such

conversation between the tenant and the

husband of the landlady; and in the absence of

any such conversation, the tape-recorded

conversation could be no proper evidence."

33. In our opinion, the High Court has failed to take

into consideration any of the precautions indicated

above in accepting the evidence of Tejasingh

Chavan, PW-18 and Jagdish Kulkarni, PW-19 with

regard to the identification of Bharat Nepali and the

appellant. The High Court, in our opinion, has

given a wholly erroneous justification by holding

that the voice of both the accused are distinctive,

clear and identifiable. It is further observed that the

conversation between the two accused is not a short

conversation as in the case of accused Nos. 1 and

2. The High Court was also influenced by the fact

33

that accused Bharat Nepali was in the custody of

Tejasingh Chavan, PW-18 for a period of two weeks.

Similarly, appellant was in the custody of Jagdish

Kulkarni, PW-19 for a substantial period of time.

Therefore, their voice identification was held to be

reliable. This reasoning of the High Court is a mere

repetition of the reasons given by the trial court.

34. We are of the considered opinion that there is

hardly any distinction in the evidence with regard to

the voice identification of accused Nos. 1 and 2 on

the one hand and Bharat Nepali and the appellant

on the other hand.

35. In our opinion, the voice test identification by

PW-19, Jagdish Kulkarni is even otherwise

unreliable. The voice identification was conducted

without taking any precautions similar to the

precautions which are normally taken in visual

identification of suspects by witnesses. It is a

matter of fact that PW-19, Jagdish Kulkarni was

34

informed in advance that he had to identify the

voice of the appellant. Similarly, PW-18 was

informed that he had to identify the voice of Bharat

Nepali. No attempt was made even to mix the voices

of Bharat Nepali and the appellant with some other

unidentified voices. In such circumstances, the

voice identification evidence would have little value.

It appears that the exercise was performed only for

the record.

36. This apart, there is no evidence on record to

indicate that the mobile No. 0060133402008 was

that of the absconding accused Bharat Nepali.

There is also no evidence to indicate that he was

using said number except voice identification by

Tejasingh Chavan, PW-18. There is no other

material on the record to connect the absconding

accused Bharat Nepali with the number allegedly

used by him. Similarly, there is nothing on the

record to indicate that the appellant was having or

using any of the following mobile number:-

35 9892849523, 9892367596, 9892296496 and

9892295687.

37. There is no seizure of any mobile phone or even sim

card at the behest of the appellant. The prosecution

has failed to produce any evidence from the

operators with regard to the registration of the

aforesaid phone numbers. In fact, the Investigating

Officer, Nagesh Lohar specifically stated in his

evidence that "we could not get those four

subscription forms and the documents of the

company though we enquire. It is true that till today

we do not know who are the subscribers of those

cell phones".

38. This apart, the High Court erroneously overlooked

the infirmities in the evidence with regard to the

authenticity of the tape recording produced in

Court. The conversation between the appellant and

Bharat Nepali was said to have been recorded on

28th October, 2004 by PW-17, P.S.I. Vijay Dalvi.

36 According to him, although, he had been monitoring

the Malaysian number of Bharat Nepali from 1st

October, 2004 till 27th October, 2004, he had heard

no incoming or outgoing calls. The incriminating

conversation was said to have been recorded on 28th

October, 2004. This conversation was relayed to a

police telephone and recorded. He put a slip on the

recorded cassette indicating the date and time of the

conversation as recorded. He then handed the tape

over to the D.C.P., Dhananjay Kamlakar. He heard

the tape on the same day. Even though the

conversation revealed a conspiracy for commission

of a serious offence, like murder of an influential

personality in Mumbai city, he took no further

action. He just sealed the tape and kept it in his

personal custody.

39. Even when the accused A1 to A4 were arrested on

8th November, 2004 the cassette was not produced

before the Investigating Officer. It was kept by

Kamlakar till 17th January, 2005, when he

37

instructed P.S.I. Vijay Dalvi to hand over the tape to

the Inspector of Police. It is a matter of record that

the tape was received by the Investigating Officer on

18th January, 2005. Even the trial court refers to

the inaction on the part of the D.C.P. Dhananjay

Kamlakar as shocking. Thereafter, the High Court

observed as follows:-

"The evidence of DCP Dhananjay Kamlakar

suggest that he had forgotten about the

existence of the tape and only when

Investigating Officer asked about the tape he

remembered, checked his record and then

informed the investigating officer that he had

such tape in his custody. It is not easy to

believe this story given by DCP Dhananjay

Kamlakar as he was a highly trained and a

Senior IPS Officer. The least which he could

had done was to find out from the telephone

companies as to who was the recipient of this

call from the number under surveillance. He

made no efforts to find out as to who had

received this call. The conduct of this officer

leads me to believe that this tape was

suppressed for some reasons which best

known to DCP Kamlakar."

40. Having concluded as such, the High Court,

however, proceeds to hold that even such lapses

cannot enure to the benefit of the appellant. The

High Court believed the recording as it had been

38

made upon prior approval by the Home Secretary

given on 20th October, 2004.

41. In our opinion, the veracity of the voice

identification would not improve merely because a

recording has been made after receiving official

approval. The crucial identification was of the voice

of the person talking on the tape. We are of the

considered opinion that the High Court has

committed a grave error in confirming the

conviction of the appellant as recorded by the trial

court only on the evidence of voice identification.

42. Other circumstance relied upon by the High Court

in convicting the appellant is the recovery of the

alleged revolver from the house of the cousin of the

appellant. In our opinion, the recovery from an open

space, at the back of the house, which did not even

belong to the appellant, could be of little assistance

to the prosecution. Even otherwise it needs to be

remembered that the trial court had in fact,

39

acquitted the appellant for the offences under

Section 3 read with Section 5 of the Arms Act. This

acquittal was never challenged by the prosecution

in appeal. Therefore, it was wholly inappropriate by

the High Court to reverse the findings of the trial

court in the absence of an appeal by the State.

43. In view of the above, we are of the considered

opinion that the appellant was entitled to the

benefit of doubt as the prosecution has failed to

prove its case beyond reasonable doubt.

Consequently, the appeal is allowed. The appellant

is acquitted of all the charges levelled against him.

The conviction and sentence imposed by the trial

court and confirmed by the High Court are quashed

and set aside. The appellant shall be set at liberty

forthwith unless wanted in any other case.

...................................J.

40

[B.Sudershan Reddy]

...................................J.

[Surinder Singh Nijjar]

New Delhi;

March 9, 2011.

41