TMI Blog1972 (9) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... a diagnosed the case as acute appendicitis. Dr. Adatia kept the patient under observation. After 24 hours the condition of the patient became serious. Dr. Shantilal J. Mehta was called. His diagnosis was acute appendicitis with generalised peritonitis and he advised immediate operation. Dr. Adatia performed the operation. The appendix, according to Dr. Adatia had become gangrenous. The patient developed paralysis of the ilium. He was removed ?to Bombay Hospital on 10 May, 1964 to be under the treatment of Dr. Motwani. The patient died on 13 May, 1964. The Hospital issued a Death Intimation Card as paralytic ileus and peritonitis following an operation, for acute appendicitis . The appellant allowed the disposal of the dead body without ordering post-mortem. There was however a request for an inquest from the Police Station. The cause for the inquest was that his was a case of post operation death in a hospital. The Coroner's Court registered the inquest on 13 May, 1964. The dates for inquest were in the months of June, July, September and October, 1964. The appellant was on leave for some time in the months of June and July, 1964. This is said to delay the inquest. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awant went to Dr. Motwani's residence. They met Dr. Motwani and Dr. Adatia. When they commenced recording the First Information Report of Dr. Motwani, Dr. Adatia left for his Nursing Home. Mugwe then arranged for the tape recording equipment to be attached to the telephone of Dr. Motwani. Dr. Motwani was asked by Mugwe to ring up the appellant in the presence of Mugwe and other Police Officers about the appellant's demand for the money. Dr. Motwani ran,, up the appellant and spoke with him. Dr. Motwani reported the gist of the talk to Mugwe. Mugwe then asked Dr. Motwani to ring up Dr. Adatia to speak on certain special points. After the talk with Di. Adatia Dr. Motwani was asked by Mugwe to ring up the appellant and ask for an appointment to discuss the matter further. Dr. Motwani rang up the appellant and an appointment was made to meet the appellant at 12 noon the same day. The conversation between Dr. Motwani and the appellant and the conversation between Dr. Motwani and Dr. Adatia are all recorded on the tape. The two Doctors Motwani and Adatia met the appellant in the Coroner's Chamber at 12 noon. The appellant raised the demand to ₹ 15,000 and said that S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ews to the Assistant Commissioner. Mugwe then ordered an open investigation into the case. The appellant was charged under sections 161, 385 and 420 read with section 511 of the Indian Penal Code. Broadly stated, the charges against the appellant were these. He attempted to obtain from Dr. Adatia through Dr. Motwani a sum of ₹ 20,000 which was later reduced to ₹ 10,000 and which was then raised to ₹ 15,000 as gratification for doing or forbearing to do official acts. He put Dr. Adatia in fear of injury in body, mind, reputation and attempted dishonestly to induce Dr. Adatia and Dr. Motwani to pay the sum of money. The appellant was also charged with cheating for having falsely represented to Dr. Adatia and Dr. Motwani that ₹ 5,000 out of the amount of ₹ 10,000 was required to be paid to the Police Surgeon for obtaining his favourable opinion. The appellant denied that he demanded any amount through Dr. Motwani. He also denied that he threatened Dr. Adatia (if the consequence of an inquest. Four questions were canvassed in this appeal. The first contention was that the trial Court and the High Court errect in admitting the evidence of the telep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 3 to mean any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or Hertzian wave s, galvanic, electric or magnetic means. Counsel for the appellant submitted that attaching the tape recording instrument to the telephone instrument of Dr. Motwani was an offence under section 25 of the Indian Telegraph Act. It was also said that if a Police Officer intending to acquaint himself with the contents of any message touched machinery or other thing whatever used in or about or telegraph or in the working thereof he was guilty of an offence under the Telegraph Act. Reliance was placed on rule 149 of the Telegraph Rules which states that it shall be lawful for the Telegraph Authority to monitor or intercept a message or messages transmitted through telephone, for the purpose of verification of any violation of these rules or for the maintenance of the equipment. This Rule was referred to for establishing that only the Telegraph Authorities could intercept message under the Act and Rules and a Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nversation. The Court admitted the tape recorded conversation. In the 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. 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 gestate. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who produced the file said that respondent No. 1 handed over the file to him for safe custody. The candidate had apprehended raid at his residence in connection with the evasion of taxes or duties. The version of the witness as to how he came to know about the file was not believed by this Court. This Court said that a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved. In Nagree's case (supra) the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector. Sheikh gave evidence of the talk. The tape record corroborated his testimony. Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntemporaneous relevant evidence and therefore it is admissible. It is not tainted by coercion or unfairness. There is no reason to exclude this evidence. It was said that the admissibility of the tape recorded evidence offended Articles 20(3) and 21 of the Constitution. The submission was that the manner of acquiring the tape recorded conversation was not procedure established by law and the appellant was incriminated. The appellant's conversation was voluntary. There was no compulsion. The attaching of the tape recording instrument was unknown to the appellant. That fact does not render the evidence of conversation inadmissible. The appellant's conversation was not extracted under duress or compulsion. If the conversation was recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In R. v. Leatham, [1861] 8 Cox.C.C.498 it was said It matters not how you get it if you steal it even, it would be admissible in evidence .. As long as it is not tainted by an inadmissible confession of guilt evidence even if it is illegally obtained is admissible. There is no scope for holding that the appellant was made to incriminate himself. At the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him to attend the Coroner's Court on 6 October, 1964. Dr. Adatia got in touch with Dr. Motwani on 6 October and gave him that message. Dr. Adatia rang up the appellant on 6 October and asked for adjournment. The appellant granted the adjournment to 7 October. On 6 October there were two calls from the appellant asking Dr. Adatia to attend the Coroner's Court on 7 October and also that Dr. Adatia should contact the appellant on 6 October. Dr. Motwani rang up the appellant and told him that the telephonic conversation had upset Dr. Adatia. On 6 October Dr. Motwani conveyed to Mugwe, Director of Intelligence Bureau about the demand of bribe to the appellant. These are the facts found by the Court. These facts prove that the offence was committed. The last contention on behalf of the appellant was that the sentence of imprisonment should be set aside in view of the fact that the appellant paid the fine of ₹ 10,000. In some cases the Courts have allowed the sentence undergone to be the sentence. That depends upon the fact as to what the term of the sentence is and what the period of sentence undergone is. In the present case, it cannot be said that the appellant had underg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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