NILESH DINKAR PARADKARversusSTATE OF MAHARASHTRA

                         [2011) 3 S.C.R. 792


A                   NILESH DINKAR PARADKAR
                                   V.
                    STATE OF MAHARASHTRA
                 (Criminal Appeal No. 537 of 2009)
                          MARCH 09, 2011
 B
       [B. SUDERSHAN REDDY AND SURINDER SINGH
                      NIJJAR, JJ.]

         Maharashtra Control of. Organized Crime Act, 1999 - s.
 C 3 - Accused entering into a conspiracy on phone to eliminate
    prominent businessman - Conviction and sentence under the
    relevant provisions of the MCOCA Act and Penal Code -
    Acquittal of A 1 to A4 of all the charges leveled against them
    by the High Court - However, the conviction and sentence of
 o  the appellant-A5 upheld - On appeal, held: High Court having
    disbelieved the prosecution version against A 1 to A4,
    committed a grave error in upholding the conviction of the
    appellant only on the evidence of voice identification - Having
    disbelieved the voice identification in the case of accused
. E Nos. 1 and 2, there was no reason to adopt a different yardstick
    in the case of the appellant - Voice identification was
    c'onducted without taking any precautions similar to the
    precautions which are normally taken in visual identification
    of suspects by witnesses - There is no evidence on record
  F to connect the absconding accused with the mobile number
    allegedly used by him nor to indicate that the appellant was
    having or using any of the given mobile numbers - There was
    no seizure of any mobile phone or even SIM card at the
    behest of the appellant - Also, the High Court erroneously
    overlooked the infirmities in the evidence with regard to .the
  G authenticity of the tape recording produced in the court -
     Veracity of the voice identification would not improve merely
    because a recording has been made after receiving official
    approval - Crucial identification was of the voice of the person

 H                                792
        NILESH DINKAR PARADKAR v. STATE OF                    793
                   MAHARASHTRA
  talking on the tape - The revolver allegedly recovered from         A
 -an open space, at the back of the house, did not even belong
  to the appellant, and therefore, could be of little assistance
  to the prosecution - More so, order of acquittal of the appellant
  for the offences uls. 315 of the Arms Act has become final -
  Thus, appellant entitled to the ben~dit of doubt as the             B
  prosecution failed to prove its case beyond reasonable doubt
  ~ Appellant acquitted of all the charges leveled against him
  - Penal Code, 1860 - Arms Act, ·1959.

      Evidence -- Evidence of voice identification - Reliability      C
 of - Held: Evidence of voice identification is at best suspect,
 if not, wholly unreliable - Ac9urate 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
 - Thus the courts have to be extremely cautious in basing a          D
 conviction purely on the evidence of voice identification -
 Identification.

        Accused Nos. 1, 2, 3 and 5 are active members of the
   organized crime syndicate of a gangster. Accused No. 4 E
   and accused Nos. 1, 2, 3 and 5 entered into a conspiracy
   to eliminate a prominent businessman 'BS'. To
   successfully carry out the assassination, movements of
   'BS' were kept under close watch. 'BN' communicated the
   office timings of the businessman to the accused th~pugh F
   his telephone. D.C.P. (Detection)-PW-42 received
   information about the conspiracy. P.S.1.-PW-17
   intercepted the telephone number and recorded a
> conversation on the telephone number between the
 . absconding accused 'BN' and accused Nos. 1, 2 and 5 G
   regarding the conspiracy. Thereafter, on receiving
   information that members of gangster were staying at
   place 'G', raid was duly conducted and the four accused
   persons were apprehended. The search was carried out.
   Certain articles were recovered. The voice test H
     794      SUPREME COURT REPORTS            [2011] 3 S.C.R.

 A identification was conducted. The identification parade
   was held in respect of the appellant. The trial court
   convicted all the five accused for the commission of
   offences under the Maharashtra Control of Organized
   Crime Act, 1999 and Penal Code, 1860. However,
 B acquitted them of the charges under Section 3 read with
   Section 25 of the Arms Act. On appeal, the accused Nos.
   1, 2, 3 and 4 were acquitted of all the charges leveled
   against them. However, the conviction and sentence of
   the appellant-A 5 was upheld. The acquittal of the
 c appellant under Section 3 read with Section 25 of the
   Arms Act became final and binding. Therefore, the
   appellant filed the instant appeal.
           Allowing the appeal, the Court

 D       HELD: 1.1 The 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
 E' circumstance relied upon by the High Court against the
    appellant is that his voice was identified by the officer
    PW-19, who had taken him in custody. The voice of 'BN'
    was also identified by PW-18, A.C.P. Thus, the approach
    adopted by the High Court was wholly erroneous. Having
 F 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. The High Court
    discarded the evidence of PW-36, A.P.I. and PW-38, A.P.1.
    mainly on the ground that they were accompanying the
    raiding party on 8th November, 2004 and had not heard
-G
    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
 H
      NILESH DINKAR PARADKAR v. STATE OF                 795
                 MAHARASHTRA
   of absconding accused 'BN' by PW-18. He was also             A
   attached to DCP, CID when the present offence was
   registered. Therefore, he would also be equally interested
   in successful completion of the investigation. Similarly,
   voice identification of the appellant by PW-19 would also
.. suffer from the same weakness as he was also attached        8
   to the office of DCP, CID. The High Court also ignored the
   fact that the witnesses were being asked to identify the
   voice of 'BN', which they had last heard in the year 1997.
   Similarly, PW-19 had only heard the voice of appellant in
   the year 2002. The evidence of voice identification is at    C
   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         0
   conviction purely on the evidence of voice identification.
   [Paras 27, 28, 29, 30] [812-C-H; 813-A-C]
     Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass
 Mehra and Ors. (1976) 2 SCC 17; Ram Singh and Ors. vs.         E
 Col. Ram Singh 1985 (Supp) SC 611; Mahabir Prasad
 Verma vs. Dr. Surinder Kaur (1982) 2 SCC 258; People's
 Union for Civil Liberties (PUCL) vs. Union of India and Ors.
 1997 (1) sec 301 - referred to.
                                                                F
      R. vs. Maqsud Ali (1965) 2 AER 464; R. vs. Robson
 (1972) 2 AER 699; R. vs. Chenia [2003] 2 Cr.App.R.6; R.
 vs. Flynn and St. John [2008] 2 Cr. App. R. 20 - referred
 to.
     Archbold Criminal Pleading, Evidence and Practice          G
 2010 edn. p 1590-91~ - referred to.
     1.2. The High Court has failed to take into
 consideration any of the said precautions in accepting
 the evidence of PW-18 and PW-19 with regard to the             H
    796     SUPREME COURT REPORTS             [2011] 3 S.C.R.

-·A identification of 'BN' and the appellant. The High Court
    has given a wholly erroneous justification by holding that
    the voice of both the accused are distinctive, clear and
    identifiable. The conversation between the two accused
    is not a short conversation as in the case of accused
  8 Nos. 1 and 2. The High Court was also influenced by the
    fact that accused 'BN' was in the custody of PW-18 for a
    period of two weeks. Similarly, appellant was in the
    custody of 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
· C repetition of the reasons given by the trial court. 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 'BN' and the appellant on the other hand.
  D [Paras 33, 34] (818-G-H; 819-A-C]
          1.3. The voice test identification by PW-19 is even
     otherwise unreliable. The voice identification was
     conducted without taking any precautions similar to the
     precautions which are normally taken in visual
 E identification of suspects by witnesses. PW-19 was
     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 'BN'. No attempt was made even
   . to mix the voices of 'BN' and the appellant with some
 F, other unidentified voices. In such circumstances, ~he
     voice identification evidence would have little value. It
     appears that the exercise was performed only for the
     record. [Para 35] [819-D-E]
       1.4. There is no evidence on record to indicate that
 G the mobile No. 0060133402008 was that of the
   absconding accused 'BN'. There is also no evidence to
   indicate that he was using said number except voice
   identification by PW-18. There is no other material on the
   record to connect the absconding accused 'BN' with the
 H number allegedly used by him. Similarly, there is nothing
      NILESH DINKAR PARADKAR v. STATE OF                   797
                 MAHARASHTRA
 on the record to indicate that the appellant was having          A·
 or using any of the given mobile numbers. [Para 36] [819-
 F-H]

      1.5. There is no seizure of any mobile phone or even
 sim card at the behest of the appellant. The prosecution         8
 has failed to produce any evidence from the operators
 with regard to the registration of the said phone numbers.
 In fact, the Investigating Officer, specifically stated in his
 evidence that he could not get those four subscription
 forms and the documents of the company though enquiry            C
 was done. It is true that till today it is not known as to who
 are the subscribers of those cell phones. [Para 37] [820-
 B-C]

        1.6. The High Court erroneously overlooked the
   infirmities in the evidence with regard to the authenticity D
   of the tape recording produced in Court. The
 . conversation between the appellant and 'BN' was said to
   have been recorded on 28th October, 2004 by PW-17,
   P.S.I. According to him, although, he had been
· monitoring the Malaysian number of 'BN' from 1st E
   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 F
   cassette indicating the date and time of the conversation
   as recorded. He then handed the tape over to the D.C.P.
   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 G
   in the city, he took no further action. He just sealed the
   tape and kept it in his personal custody. 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 DCP-'DK till 17th January, 2005, H
    798     SUPREME COURT REPORTS               (2011) 3 S.C.R.


A when he instructed P.S.1.-'VD' to hand over the tape to the
  Inspector of Police. The tape was received by the
  Investigating Officer on 18th January, 2005. Even the trial
  court referred to the inaction on the part of the D.C.P 'DK'
  as shocking. However, the High Court held that even
B such lapses cannot ensure to the benefit of the appellant.
  The High Court believed the recording as it had been
  made upon prior approval by the Home Secretary given
  on 20th October, 2004. [Para 38 and 40) [820-D-H; 821-A-
  E]
c        1.7. 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. The High
    Court committed a grave error in confirming the
D   conviction of the appellant as recorded by the trial court
    only on the evidence of voice identification. 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. The recovery
E   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,
    acquitted the appellant for the offences under Section 3
F   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 r.ourt in the absence of an appeal
    by the State. In view, thereof the appellant was entitled
G   to the benefit of doubt as the prosecution failed to prove
    its case beyond reasonable doubt. 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.
H   [Paras 41, 42 and 43) [821-E-H; A-DJ
    · NILESH DINKAR PARADKAR v. STATE OF                  799
                 MAHARASHTRA

                     Case Law Reference                          A
 1982 (2) sec 258             Referred to       Para 24
 1985 (Supp.) sec 611         Referred to       Para 24
 1997 (1) sec 301             Referred to       Para 24
                                                                 B
 (1976) 2 sec 11              Referred to       Para 30
 1985 (Supp) sec 611          Referred to       Para30

 (1965) 2 AER 464             Referred to       Para 30
                                                                 c
 (1972) 2 AER 699             Referred to       Para 30

 (1982) 2 sec 258             Referred to       Para 32

 (2003) 2 Cr. App. R. 6 CA Referred to          Para 32
 (2008) 2 Cr.App.R. 20. CA Referred to          Para 32          D

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 537 of 2009.

     From the Judgment & Order dated 21.8.2008 of the High
Court of Judicature at Bombay in Criminal Appeal No. 1044        E
of 2006.

    Sushil Karanjkar, K.N. Rai for the Appellant.

 . Uday B. Dubey, Sanjay V. Kharde, Asha Gopalan Nair for        F
the Respondent.

    The Judgment of the Court was delivered by

    SURINDER SINGH NIJJAR, J. 1. This appeal is directed
against the judgment and order of the Bombay High Court          G
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
                                                                 H
    800    SUPREME COURT REPORTS                [2011] 3 S.C.R.

A 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
B 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.
c
    PROSECUTION CASE

       3. According to the prosecution, accused Nos. 1, 2, 3 and
  5 are active members of the organized crime syndicate of
0 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
E Bhuvan'. The office of 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
F 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
G 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,
H
     NILESH DINKAR PARADKAR v. STATE OF                        801
    MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
 2004, on receipt of the definite information with regard to the       A-
 conspiracy, a request was put up to the Additional Chief
 Secretary (Home) seeking permission to intercept the aforesaid
 telephone number. The request was made on 14th October,
 2004 and it was approved on 20th October, 2004.
                                                                    B
       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 . C
  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 D
  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 .45 revolver and the other three being .38 bore
  revolver. The conversation on the telephone having been E
  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.
                                                                       F
      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        G
 companies. The numbers of those cell phones of the accused
 were as follows:-

      Accused No.1               9819861417

      Accused No.2               9819240297, 38096524                  H
    802      SUPREME COURT REPORTS                [2011] 3 S.C.R.


A         Accused No.3            9890299354

          Accused No.4            38950501
          Accused No.5            9892849523, 9892367596,

B                                 9892296496, 9892295687

          Bharat Nepali           0060133402008
          (absconding accused)
        6. It appears that Amit Dalvi, accused No. 4 had rented a
C 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.
D
        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
E 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 at 5.30 a.m. on the next day morning as the
  informant had told him that he was working on the information
F 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.
G
      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.
H Consequently, PW-1, Hiro Khatri was joined as a Panch
       NILESH DINKAR PARADKAR v. STATE OF                    803
      MAHARASHTRA [SURINDER SINGH NIJJAR, J.]

witness. He was introduced to the police party as well as the. A
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 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. B
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
      (AS) 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      C
      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 D
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 E
persons were then searched.

  !  10. Accused No.1 was searched by AP.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       F
its magazine, the pistol was found to contain seven live
cartridges. A cell phone was also recovered from the shirt
pocket of A 1. 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,         G
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             H
    804      SUPREME COURT REPORTS              [2011) 3 S.C.R.

A numbers and words BMW Nee/a (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 loaded with six live
  cartridges. One blue colour cell phone of Nokia company model
B 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
c Devnagari script "Charni road station javal, Mehta Bhuvan". He
  also disclosed his cell phone number as 9819240297. Similar
  search ofaccused No.3 produced .38 bore revolver kept into
  left side of ~is pant waist. The revolver was of Smith and
  Wesson make. It had five chambers loaded with five live
D 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 with accused
E 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
F 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
G 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
H
    NILESH DINKAR PARADKAR v. STATE OF                       805
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
Jadhav and accused No.4, Amit Dalvi voluntarily made                 A
statements before the 1.0. Valishetty 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              B
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          c
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        D
involved as accused in the crime.

      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               E
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       F
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 C.ell No. 0060133402008 was
forwarded to the police by the BSNL by letter dated 18th             G
January, 2005(Ex.71). This print out also confirms that there
was a telephone conversation at 5.55 p.m. on 28th January,
2004 of about 9.15 minutes. The number mentioned there was
that of the ~ppellant.
                                                                     H
     806     SUPREME COURT REPORTS                   [2011) 3 S.C.R.


A      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,
B 2005, Mr. Kamlakar, D.C.P. (Detection), PW-42 asked P.S.I.
  Dalvi, PW-17 to handover th·e 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
C 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 aforesaid police officers. In this manner, the
D 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

          so the case of the prosecution that A.P.I. Raut, who was
E    Investigating Officer, identified the voice of A2, Vishwanath
     Jadhav. A.P.I. Pasalwar, PW-38, is stated to have identif
     ed the voice of accused Vi nod (A 1). The Panchnama was duly
     prepared. Transcript of the conversation incorporated in the
     Panchnama (Ex.45) was proved through Panch Anil Shukla,
-F   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
G obtaining the custody, a further identification parade was held
  on 16th April, 2005 in respect of the appellanl 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'
H
    NILESH DINKAR PARADKAR v. STATE OF                         807
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
Stall, situated near the office of the victim, Mr. Bharat Shah. It     A
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           B
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       C
was seized and wrapped in a plastic cover sealed by the
police. On completion of the investigation, the 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.                     D

    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.                        E

     18. The Trial Court convicted all the five accused as under:-

      "(1)   Charge head firstly is nof considered as it is
             repetition in charge heads secondly, thirdly and
             ~~                                                        F
      (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                G
             Rs.5,00,000/- (Five lacs), each, in default, to suffer
             further RI for 1 (One) year.

      (3)    Accused Nqs0 1,,2, 3 and 5 are held guilty for the
             offence pl.ltlistiable under Section 3(4) of the
             MCOC Act, 1999 and are sentenced to suffer RI for         H
    808     SUPREME COURT REPORTS                    [2011] 3 S.C.R.

A               7 (seven) years and to pay a fine of Rs.5,00,000/-
                (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.
B
          (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.
c               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
D               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.
E
          (6)     Accused Nos. 4 and 5 are held guilty for the of{ence
                  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
F                 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
G               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.
H
     NILESH DINKAR PARADKAR v. STATE OF                       809
    MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
       (8)   Accused No.5 is not held guilty for the offence          A-
             punishable under Sec.3 r/w 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              8
             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.
                                                                      c
       ( 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       D
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         E
 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. The High              F
  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   G
  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              H.
    810       SUPREME COURT REPORTS               [2011] 3 S.C.R.


A   Criminal Appeal No. 1044 of 2006, the appellant has filed the
    present special leave petitio~.

          23. We have heard the learned counsel for parties.

       24. Mr. Shekhar Naphade submitted that the High Court
B disbelieved the prosecution version in so far as the accused
  A 1 to A4 are concerned. Having disbelieved the prosecution
  version against A 1 to A4, the High Court committed a grave
  error in upholding the conviction of the appellant. He submits
  that the evidence against A 1 to A4 and the appellant is
C 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
D be used as corroboration of the other independent evidence.
  In support of the submission, learned couns~; relied on the
  judgments in Mahabir Prasad Verma Vs. Dr. Surinder kaur1,
  Ram Singh And Ors. Vs. Col. Ram Singh2 and People's Union
  for Civil Liberlies (PUCL) Vs. Union of India & Ors3.
E
         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
F   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:-
G
          "Thus, in my view the defence have succeeded in creating
          a reasonable doubt about the prosecution case that
    1.   1982 (2) sec 258.
    2.   1985 (Supp.) sec a11.
H 3. 1997 (1) sec 301.
       NILESH DINKAR PARADKAR v. STATE OF                      811
      MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
       accused Nos. 1 to 4 were spotted and apprehended at            A
       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.      B
       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.      c
       It would have been 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.
                                                                      0
       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      E
       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 F
    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 G
    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 which
    according to the prosecution took place on 8th November, 2004
    and which does not appear to be true". Both the confessions       H
     812     SUPREME COURT REPORTS                [2011] 3 S.C.R.

. A ere 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.
  B
         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.
  C 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.

 D      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
 E evidence of PW-36, A.P.I. Dilip Raut and PW-38, A.P.1.
   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
 F 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.
 G He would, therefore, also be equally interested in successful
   completion of the investigation.

         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.
 H
      NILESH DINKAR PARADKAR v. STATE OF                        813
     MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
The High Court also ignored the fact that the witnesses were            A
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       8
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         C
in basing a conviction purely on the evidence of voice
identification. This Court, in a number of judgments
emphasised the importance of 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 Mehra & Ors. 4, this Court                D
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          E
      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
                                                                        F
               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     G
                so as to rule out possibilities of tampering with the
                record.


4.   (1976) 2 sec 11.                                                   H
    814           SUPREME COURT REPORTS                [2011) 3 S.C.R.

A          (c)     The subject-matter recorded had to be shown to be
                   relevant according to rules of relevancy found in the
                   Evidence Act."

      In the case of Ram Singh & Ors. Vs. Col. Ram Singh 5,
  again this Court stated some of the conditions necessary for
B
  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
c               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
D               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.
E           (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.

F           (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.
G           (6)     The voice of the speaker should be clearly audible
                    and not lost or distorted by other sounds or
                    disturbances."


H   5.    1985 (Supp) sec s11.
                                                    I
       NILESH DINKAR PARADKAR v. STATE OF                    815
      MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
    In Ram Singh's case (supra), this Court also notices with       A
approval the observations made by the Court of 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-
                                                                    8
       recording and a photograph. In saying this we must not be
       tak~n as saying that such recordings are admissible
       wha~ever 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        C
       the accuracy of the recording can be proved and the voices
       rec.orded properly identified; provided also that the
       evidence is1 relevant and otherwise admissible, we are
       satisfied th~t 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   D
       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.          E
· Robson7, 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      F
       transposition, excision and insertion of words or phrases
       and such alterations may escape detection and even elude
       it on examination by technical experts.

     31. Chapter 14 of Archbold Criminal Pleading, Evidence         G
 and Practice 8 discuss the law in England with regard to

 6.   (1965) 2 AER 464.
 7.   (1972) 2 AER 699.
 8.   201 O edition at pg. 1590-91.                                 H
    816       SUPREME COURT REPORTS                   [2011] 3 S.C.R.

A 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
B precautions which ought to be taken in relation to visual
  identification. Speakin_g 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:-
c          "(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,
D
           (c)     the ability of the individual to identify voices in
                   general (research showing that this varies from
                   person to person),
           (d)     the nature and duration of the speech which is
E                  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."
F
         The Court of Appeal in England in R Vs. Chenia9 and R.
    Vs. Flynn and St. John 10 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:-
G
           "(a) the voice recognition exercise should be carried out
                by someone other than the officer investigating the
                offence;
    9.   [2003] 2 Cr. App. R. 6 CA.
H 10. [2008] 2 Cr. APP. R. 20, CA.
    NILESH DINKAR PARADKAR v. STATE OF                       817
   MAHARASHTRA [SURIN.DER SINGH NIJJAR, J.]
      (b) . proper records should be kept of the amount of time     A
            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         B
            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    C
            annotations of any other officer."

     In America, similar safeguards have been evolved through
a series of judgments of different Courts. The principles evolved
have been summed up in American Jurisprudence 2d (Vol. 29)
in regard to the admissibility of tape recorded statements,         D
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              E
     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;                     F

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

            (3)    establishment of the authenticity and
                                                                    G
                   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      H
    818       SUPREME COURT REPORTS                 [2011) 3 S.C.R.

A                      of the recording;

                 (6)   identification of the speakers; and

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

          ... However, the recording may be rejected if it is so
          inaudible and indistinct that,the jury must speculate as to
          what was said.              '
c        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 corroboration evidence in
    paragraph 22, it is observed as follows:-
D         "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
E         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."
F
          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,
G 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
H 11. (1982) 2 sec 2s8.
    NILESH DINKAR PARADKAR v. STATE OF                         819
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
\los. 1 and 2. The High Court was also influenced by the fact          A
~hat accused Bharat Nepali was in the custody of Tejasingh
:;havan, PW-18 for a period of two weeks. Similarly, appellant
-vas in the custody of Jagdish Kulkarni, PW-19 for a substantial
)eriod of time. Therefore, their voice identification was held to
)e reliable. This reasoning of the High Court is a mere                B
·epetition 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
 3harat Nepali and the appellant on the other hand.                    C

      35. In our opinion, the voice test identification by PW-19,
~agdish Kulkarni is even otherwise unreliable. The voice
identification was conducted without taking any precautions
i>imilar to the precautions which are normally taken in visual         D
identification of suspects by witnesses. It is a matter of fact that
 =>W-19, Jagdish Kulkarni was informed in advance that he had
•O 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           E
•he appellant with some other unidentified voices. In such
-:ircumstances, the voice identification evidence would have little
-1alue. It appears that the exercise was performed only for the

•ecord.

      36. This apart, there is no evidence on record to indicate F
•hat the mobile No. 0060133402008 was that of the absconding
accused Bharat Nepali. There is also no evidence to indicate ·
lhat he was using said number except voice identification by
 ·ejasingh Chavan, PW-18. There is no other material on the
•ecord to connect the absconding accused Bharat Nepali with G
"le number allegedly used by him. Similarly, there is nothing
•tn the record to indicate that the appellant was having or using
.. ny of the following mobile number:-

                                                                       H
    820     SUPREME COURT REPORTS                 [2011] 3 S.C.R.

A         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
8
  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 enquiri:> It is true
C 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
D the appellant and Bharat Nepali was said to have been recorded
  on 28th October, 2004 by PW-17, P.S.I. Vijay Dalvi. 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
E 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
F 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.
G      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 instructed P.S.I. Vijay Dalvi to hand over the tapei
  to the Inspector of Police. It is a matter of record that the tape
H was received by the Investigating Officer on 18th January, 2005.
                                                             'I
    NILESH DINKAR PARADKAR v. STATE OF                          821.
   MAHARASHTRA [SURINDER SINGH NIJJAR, J.]
Even the trial court refers to the inaction on the part of the D.C.P.   A
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          8
     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         C
     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                D
     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         E
as it had been 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              F
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.
                                                                        G
     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          H
    822      SUPREME COURT REPORTS                   [2011] 3 S.C.R.


A   assistance to the prosecution. Even otherwise it needs to be
    remembered that the trial court had in fact, 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
a   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
C 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.
D
  N.J.                                            Appeal allowed.