The Case for Adopting Audio-Video Recording and Transcription of Oral Evidence in Civil and Criminal Trials

Introduction — The premise

Evidence in a civil or criminal trial comes in two forms. Physical evidence and oral evidence. Physical evidence consists of documents including electronic documents and objects such as weapons, jewellery, vehicles and so on. Oral evidence consists of the oral statements given by the witnesses on oath before the court.

The practice prevalent in the State of Telangana for recording oral evidence in civil and criminal trials is that the advocate puts question to the witness, the witness answers, the Judge transcribes and translates the answer of the witness in the form of a statement and records in writing or has it typed. In most cases, the statement will also be translated into English language.

Oral evidence is recorded in this manner because of the statutory provisions governing the mode of recording of the oral evidence. This method of recording oral evidence is inefficient and the evidence recorded is not always accurate. Oral communication involves not only spoken words, but also body language and gestures along with inflection. It is impossible to capture the entire gamut of oral communication in written form. Further what is being transcribed is not just the reply of the witness, but a conversation or interview between the advocate and the witness.

Much is lost in transcribing and translating this conversation into a statement. Even in ordinary circumstances accuracy in transcribing and translating depends on the linguistic capabilities of the person doing the transcribing and translating. Further he or she will have the option of consulting reference books and dictionaries while doing so. In case of trials, it is entirely dependent on the linguistic capabilities of the Judge recording the evidence and in the high-pressure environment of the trial, the Judge will not have much opportunity to verify reference books and dictionaries. Moreover, linguistics studies show that the transcribing process is an analytical process and there is possibility of the transcriber being biased.

It is my contention that the best way to record the oral evidence would be to record it with audio-video recording equipment and prepare a transcript of the recording. This would ensure complete accuracy in recording the oral evidence since in this process the actual words spoken by the advocate and the witness and their gestures, inflection put on the words and their body language all will be recorded. This would ensure that the accuracy of evidence is not dependent on the linguistic capabilities of the Judge and further overcome the pitfalls in the process of conversion of a conversation into a statement.

In this article, the first part is an examination of the statutory provisions governing the mode of recording oral evidence and how they dictate the mechanics of recording evidence. The second part is an analysis of the mechanics of transcribing and translation and the issues involved in that process. The third part is a description of the mechanics of audio-video recording and transcribing of the recording and the merits and demerits of the same.

Part I — Statutory provisions and the mechanics of recording oral evidence

Section 3 of the Evidence Act, 1872¹ defines evidence as follows:

“Evidence”.—“Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.

Section 2(e) of the Sakshya Adhiniyam, 2023² defines evidence as follows:

(e) “evidence” means and includes—

(i) all statements including statements given electronically which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;

(ii) all documents including electronic or digital records produced for the inspection of the court and such documents are called documentary evidence;

The receiving of documents and physical objects in a civil or criminal trial is pretty straightforward. The witness will identify the document or the object and state its relation to the facts in issue and the same will be received subject to the rules of admissibility and relevancy. The documents or objects, as the case may be, are given reference numbers in accordance with the applicable rules.

The recording of oral evidence is a more complicated affair. There are specific statutory provisions governing the manner in which the oral evidence has to be recorded. Sections 272 to 283 of the Criminal Procedure Code, 1973³ (hereinafter referred to as “old Code”) and Sections 307 to 318 of the Nagarik Suraksha Sanhita, 2023⁴ (hereinafter referred to as “new Code) prescribe the mode of taking and recording evidence in criminal trials. There is no difference in the language of the said provisions in the old Code or the new Code. Order 18 of the Civil Procedure Code, 1908⁵ (hereinafter referred to as “CPC”) prescribes the mode of recording evidence in civil trial. Sections 137⁶ and 138⁷ of the Civil Procedure Code, 1908 deal with language of the court.

(a) Recording of evidence in criminal trials

Section 272⁸ of the old Code and Section 307⁹ of the new Code states that the State Government may determine the language of each court in the State except the High Court. The languages of the court in the State of Telangana are Telugu, Urdu, English, Kannada and Marathi.¹⁰

Section 273¹¹ of the old Code and Section 308¹² of the new Code require the evidence to be recorded in the presence of the accused.

Section 274¹³ of the old Code and Section 309¹⁴ of the new Code stipulate that the evidence in summons cases will be recorded by the Magistrate and as examination of each witness proceeds the Magistrate shall make a memorandum of the substance of the evidence.

Section 275¹⁵ of the old Code and Section 310¹⁶ of the new Code requires the Magistrate in a warrant case to record the evidence in writing by himself or to his dictation or where he is not able to do so by another officer of the court, under his superintendence. The evidence is to be recorded in the form of a narrative. The Magistrate has the discretion to record it in question-and-answer form. These sections also provide that the evidence may be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence. The evidence so recorded shall be signed by the Judge and forms part of the record.

Section 276¹⁷ of the old Code and Section 311¹⁸ of the new Code requires the Judge trying the sessions case to record the evidence in writing by himself or to his dictation or where he is not able to do so by another officer of the court under his superintendence. The evidence is to be recorded in the form of a narrative. The Judge has the discretion to record it in question-and-answer form. The evidence so recorded shall be signed by the Judge and forms part of the record.

Section 277¹⁹ of the old Code and Section 312²⁰ of the new Code stipulate that in warrant cases and sessions cases, if the witness gives evidence in the language of the court it shall be taken down in that language and if he gives evidence in any other language, it shall be taken down in that language if it is practicable, and if it is not practicable translated into court language, as the examination of the witness proceeds. Further if the evidence is recorded in a language other than the court language, it shall be translated into court language.

Section 278²¹ of the old Code and Section 313²² of the new Code requires the evidence recorded in warrant cases and sessions cases be read over to the witness in the presence of the accused and his advocate and if necessary be corrected. If the witness denies the correctness of any part of the evidence the Judge or Magistrate has the discretion to correct it or instead of correcting it make a memorandum of the objection and his remarks on the objection. If the language in which the evidence is recorded is different from the language in which it was given by the witness, then the same shall be interpreted to the witness in the language it was given or the language of the witness. Section 279²³ of the old Code and Section 314²⁴ of the new Code requires that where the evidence is given in a language not understood by the accused or where the evidence is given in language other than the court language and the advocate of the accused does not understand it, it shall be interpreted to the accused or the advocate. Section 280²⁵ of the old Code and Section 315²⁶ of the new Code requires the court to record the demeanour of the witness, if he thinks it material.

Section 281²⁷ of the old Code and Section 316²⁸ of the new Code deal with examination of the accused. These sections require the Magistrate or the Judge to record the whole of such examination including every question put to the accused and every answer given by the accused in full, in writing by himself or to his dictation or where he is not able to do so, by another officer of the court under his superintendence. The record shall be as far as practicable in the language of the accused and if not practicable in the language of the court. The record shall be shown to the accused or read to the accused and if the accused does not understand the language of the record, it shall be interpreted to the accused in the language he understands. The accused is at liberty to explain or add to his answers. Thereafter it shall be signed by the accused and the Magistrate or the Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains the full and true account of the statement made by the accused. This does not apply to the examination of the accused in a summary trial.

Section 282²⁹ of the old Code and Section 317³⁰ of the new Code requires the interpreter whose services are required by any criminal court for interpretation of any evidence or statement shall be bound to state the true interpretation of such evidence or statement.

(b) Recording of evidence in civil trials

Section 137(1) CPC stipulates that “the language which, on the commencement of this Code, is the language of any court subordinate to a High Court shall continue to be the language of such subordinate court until the State Government otherwise directs. Sub-section (2) stipulates that “the State Government may declare what shall be the language of any such court and in what character applications to and proceedings in such courts shall be written”. Sub-section (3) stipulates that where CPC requires anything other than recording of evidence to be done in writing such writing may be in English. If the party or the advocate is not acquainted with English language then it can translate at their request and at their cost.

Section 138 CPC stipulates that the High Court may by notification in the Official Gazette “direct with respect to any Judge specified in the notification, or falling under a description set forth therein, that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed”. The High Court of Andhra Pradesh had issued a Circular under Section 138 CPC directing that evidence in all the civil cases where appeal is allowed shall be recorded in English.³¹

Order 18 CPC deals with recording of evidence. Order 18 Rule 4³² states that the chief examination shall be in the form of affidavits and cross-examination and re-examination of the witnesses shall be taken down by the Court or the Commissioner appointed for this purpose. The Court or the Commissioner shall record the evidence in writing or mechanically in the presence of the Judge or the Commissioner. Order 18 Rule 5³³ states that in cases where appeal is allowed evidence of each witness shall be taken down in the language of the Court in writing by, or in the presence and under the personal direction and superintendence of the Judge, or from the dictation of the Judge directly on a typewriter; or if the Judge directs, recorded mechanically in the language of the Court in the presence of the Judge, for reasons to be recorded by the Judge. Order 18 Rule 6³⁴ states that if the evidence is taken down in a language different from the language it is given, and the witness does not know such language the same shall be interpreted to the witness. Order 18 Rule 7³⁵ states that if evidence is recorded under Section 138 CPC, it shall be in form under Rule 5 and shall be read over and signed and if occasion demands it shall be interpreted and corrected as evidence under the said rule. Where the evidence is not taken down by the Judge or recorded to his dictation or recorded mechanically in his presence the Judge shall make a memorandum of the evidence as the witnesses are examined and sign it and it shall form part of the record. Order 18 Rule 9³⁶ states that where the language of the court is not English but all the parties and advocates do not object the evidence can be taken down in English. Where the evidence is not given in English but all the parties and advocates do not object, the evidence can be taken down in English. Order 18 Rule 10³⁷ states that the court can record any question and answer either on its own or at the request of the party, if there appears to be a special reason for doing so. Order 18 Rule 11³⁸ states that where any question is put to the witness and it is objected to by any party then the court shall record the question, answer to the question and the objection of the party. Order 18 Rule 12³⁹ states that court can record the demeanour of the witness. Order 18 Rule 13⁴⁰ states that in cases where appeal is not permitted, there is no requirement to dictate or record evidence of the witnesses at length. It is sufficient if the Judge records a memorandum of the substance of the evidence deposed by the witness and signs it.

From the above it can be seen that the statutory provisions governing the recording of evidence in civil and criminal trials require the Judge to record the evidence in his own writing or to his dictation and where, for some reason, he is not able to record it have it recorded by an officer of the court under his superintendence. The evidence so recorded has to be in form of a statement. Only where an accused is examined the questions and answers will be recorded fully. In criminal trials the evidence has to be recorded in the language in which witness speaks. But if the language spoken by the witness is not the language of the court, then it has to be translated into the language of the court. In case of civil trials evidence will be recorded in English.

Thus, the statutes require the Judge to transcribe the words spoken by the witness into a statement and where required translate it. These requirements dictate the mechanics of recording the evidence.

Part II — The mechanics of transcribing and translation

“Transcribing is the process of representing, in written form, some stretch of lived activity. The resulting transcription provides a document that is easily perused and examined, and in a variety of institutional settings it serves as the official record of the actual proceedings. Such governmental and commercial transcripts are generally perceived as impersonal or unbiased renderings and are intended primarily as references to activity. In communication research, however, it is understood that transcribing is an analytic process, since, in actuality, a transcriber is always selecting and distilling the complexities of speech and action. Or, in the case of rendering original handwritten documents, the researcher loses the artistry of the hand that produced the original document. Transcripts are, therefore, abstract versions of verbal, vocal, bodily, and spatial activities; they embody the transcriber’s stance toward the aims of recording and studying a communication event.”⁴¹

Translation is the process of converting text or speech in one language into another language. Each language has its own grammatical structure, and unique cultural background. The words have meanings peculiar to that culture and may not have equivalent words in the other languages. The words also may have different meanings based on the tone and accent. Certain idioms may not translate into another language because of the cultural context. These are well documented.⁴²

The following observations are based on my personal experience of recording evidence in civil and criminal trials for the past ten years. As noted above the statutory provisions discussed above dictate the manner in which evidence is recorded. Oral evidence of a witness is usually in the form of an interview or conversation between the advocate and the witness. The advocate puts questions to the witness and the witness gives answers to the said questions. Since the statute requires that the oral evidence should be recorded in the form of a statement, the Judge has to convert the question and answer into a statement.

For instance, take the following questions and answers:

“Question: Have you seen Shyam at that place?

Answer: Yes.”

The Judge has to convert this into a statement. Therefore, the evidence recorded may read as follows: “I have seen Shyam at that place.” Now consider this question and answer:

“Question: I put it to you that you have not seen Shyam at that place.

Answer: It is not true.”

The Judge may record it in this manner “it is not true to suggest that I had not seen Shyam at that place.”

Thus, it can be seen that what is actually recorded is the question put by the advocate and the answer given by the witness as transcribed by the Judge into a statement. Therefore, the evidence recorded is not in the actual words of the witness. The legislature, being aware of this, has incorporated the provisions requiring that after completing the recording of evidence the Judge has to read over to the witness what was recorded and record any objections the witness may to what has been recorded in the evidence.

Still one may say that even though the Judges transcribe the evidence it will usually be an accurate rendering of the statements given by the witness. But it is to be noted that language studies have shown that the transcribing process is not an exercise free from bias since it is an analytical process.⁴³ Moreover, there are certain other factors also that affect the accuracy. The process of transcribing the question and answer takes certain amount of time. The advocate asks the question and witness answers. Then the Judge transcribes this conversation into a statement, translates it and then dictates it to the typist who types it in the computer. Sometimes the advocate is not satisfied with the answer given by the witness and will repeat the question or put the question again in another form without waiting for the Judge to transcribe the earlier question and answer. Here it is to be noted that, since the Judge has to transcribe the question and answer the Judge has to keenly listen to the conversation between the advocate and the witness. Since there is no audio recording of the examination of the witness the Judge has to retain the entire conversation in his mind and then transcribe it into a statement. In the heat of the moment the entire conversation may not be accurately recollected. Sometimes the advocate will insist that the earlier answers should not be recorded and only the last answer in his client’s favour should be recorded.

A further problem with this process is that since the questions are not recorded there is nothing in the statement recorded by the Judge to give context to some of the answers given by the witness. The advocates will try to mold the evidence to mean something other than what the witness meant to say. Sometimes they put questions in a manner that the witness as a lay person may not comprehend. The witness will give a monosyllabic yes or no or sometimes just nod his head and the advocate will insist that the answer be recorded in his client’s favour. Sometimes they ask a question and when the witness gives the answer and the Judge is recording it, the advocate will add some words to the transcribed statement that were not part of the original question. These words will usually be contextual to the question but are not part of the original question and usually change the purport of the answer or add to the witness’s answer. Unless the Judge is very alert and tells the advocate that the words were not part of the original question, the words not put to the witness will become part of the evidence. This is very problematic because the continuous process of transcribing and translating the evidence is very tiring and mentally exhausting. Further the Judge at that point of time will not be fully concentrating on what the advocate is saying but more focused on converting the words of the witness and advocate into a statement and groping for the words to transcribe them into a statement or accurately translate what the witness said. In that process the words inserted by the advocate may be insinuated into the statement.

While recording the evidence the Judge has to perform three tasks simultaneously. The Judge has to keenly hear and observe the questions put by the advocate and answers given by the witness in order to accurately record the evidence and then convert the question and answer into a statement in his head and dictate it to the typist. Thus, while recording the oral evidence the Judge is simultaneously trying to hear what the advocate and witness are saying and then applying his mind and converting what they have said in to a statement and dictating it to the typist and also monitoring to see whether the typist is correctly typing what is being dictated. If the advocate waits for the Judge to finish the process then the Judge can fully apply his mind to the transcribing process. But if the advocate presses on then the Judge’s mind will be divided between what the advocate and witness are stating and at the same time trying to retain what was said earlier and also monitoring what the typist is typing. In that process everything the witness says may not become part of the statement recorded by the Judge.

This also gives rise to complaints from the advocates that the Judges has not recorded what the witness has stated. The Judge while transcribing unconsciously will be analysing what is said and converting into a statement. Sometimes the Judge may not include all the words of the question and answer. In translation into English the purport of the answer may change. The advocates also may sometimes lose track of their questions because of the time taken in the transcribing process, because the advocate also has to keep track of the answer given by the witness, how that answer is being recorded.

The statutes require the Judge to write down the evidence by himself or have it typed to his dictation or recorded under his superintendence. Except for the last, the other two modes of recording evidence require the Judge to apply his mind and perform the three tasks described above simultaneously. If the Judge is recording the evidence in his own hand then the Judge has to concentrate on writing it down. Unless the Judge has superlatively excellent handwriting and the capacity to write with great speed, the deposition will end up as an illegible scrawl. Having it typed presents its own challenges. Much depends on the skill and knowledge of the typist. Earlier when there were type machines, the Judge, the advocate and the witness could not see what was being typed until the recording of evidence was completed. If the typist’s language skills or typing skills are not up to the mark then the accuracy of the evidence is further lessened. After computers have been introduced the accuracy has increased since corrections can be affected without disturbing the entire text before printing it. To enable the Judge, the advocate and the witness to see what is being typed almost all courts now have two additional monitors attached to the computer. This has increased the accuracy of transcribing the evidence. But it has not lessened the importance of the skill of the typist. It only means that the Judge can and has to constantly monitor what is being typed apart from listening to the witness and transcribing.

This process also puts a premium on the language skills of the Judge. Since it is the Judge who has to transcribe the statements of the witness the Judge should have native or near native fluency in the languages of the court. Ordinarily the witnesses will speak the native languages of the place where the court is located and usually that language will be the court language. For instance, in Telangana witnesses will mostly speak in Telugu. Therefore, the Judge has to be fluent in Telugu. In Telangana the practice of the courts is to record the evidence in English by transcribing the statements of the witnesses and translating into English. In all civil cases evidence has to be recorded in English as noted above. In all criminal cases also the evidence is recorded in English. Thus, the Judge also has to be fluent in English. Judges working in Telangana mostly have functional knowledge of Urdu and Hindi. Therefore, they are also able to record evidence of witnesses who speak those languages. But still the evidence will be translated into English.

Now we can see that the oral evidence given by the witness goes through two processes before being reduced into writing. It is translated to English and then transcribed into a statement. Apart from the bias in transcribing, translation presents its own challenges. Each language has its own social and cultural context and does not mutatis mutandis translate into another language. There are words that do not have equivalents in the other language. Further unless great care is taken with the words the meaning of the statement may change in translation. Moreover, there are dialects, accents, terms of art, slang and other peculiarities of language to contend with. The following illustrations may be considered:

1. The witness in Telugu said “karra tippi bayapettadu” “karra” in Telugu means a piece of wood. But in Telugu there are specific words that can be used to describe different types of pieces of wood. Long pieces of bamboo as “lathi”, or thicker rounded pieces used for construction “savaka katte”. A portion of a plank “chekka” or maybe pieces of firewood “katte”. The word “karra” can be used to denote any of the above also. Now “tippi” means to turn something around, to whirl something around or rotate something or in this context may also mean brandish. “Bayapettadu” may be translated as threatened, frightened or warned.

2. I always translate “antinchukuni” as attaching something to ourselves. “Manta antinkuchukuni” would be translated as setting fire to oneself. “Manta antinchukuvachindi” would be translated as she set herself on fire and came there. What I have written is the meaning I give to that word in my dialect of Telugu. But in the dialect of Telugu spoken in Chittoor District of Andhra Pradesh “antinchukuvachindi” means she was on fire. Therefore, when I had to translate the word “intlonunchi antinchukvachindi” stated by a witness from Chittoor, I translated and transcribed it as “she set herself on fire and came out of the house”, when the witness meant to say “she was on fire when she came out of the house”. This led to much consternation and recrimination and humour in the court.

3. Context also plays a great part in giving meaning to the words. The witness said “a pakka padipoyadu”. “Pakka” means side “padipoyadu” means he fell down. The phrase can be translated here as “he fell that side” or “he fell on that side” or “he fell towards that side” or “he fell there”. The place where this had taken place will give context to the statement of the witness. But without the question and the topography of the place it does not make sense.

4. “Pulla veyadam” is a popular Telugu phrase and idiom meaning to cause obstruction. But in some parts of the coastal region of Andhra Pradesh it means burning the stubble in the fields. “Udchadam” is usually taken to mean “sweeping”, but in the coastal regions it means transplanting paddy seedlings.

5. We usually use the word “sofa” to describe furniture and is defined as “a long, soft seat with a back and usually arms, on which more than one person can sit at the same time”.⁴⁴ But in Rayalaseema region of Andhra Pradesh, “sofa” means the raised platform constructed before the threshold of the house meant for sitting.

6. In my dialect “velladu” means he went to some place. In some parts of Telangana “velladu” means he started from some place.

In the above illustrations one may also note that translating a single word from Telugu to English requires knowledge of the context, dialect as well as use of appropriate words in English in that context. As noted “tippi” may mean turnover, turn, brandish as well as rotate. When the appropriate words are not used then what will be recorded will not be what the witness meant to say.

Part III — The mechanics of audio-video recording of evidence

In our legal system the mistakes committed by the trial Judge in appreciating the evidence can be corrected, but the mistakes in recording the oral evidence cannot be corrected. As we have seen above what is recorded is not the actual statement of the witness but the Judge’s version of it. So, if Judge does not record the witnesses’ statements accurately, then the witnesses’ evidence is lost to the court. Our law describes the trial process as a search for truth. Then the limitations of language should not obstruct the path to truth. Accuracy of the evidence cannot be allowed to be dependent on the language skills of the Judge.

The mode of recording evidence prescribed in the procedural laws was evolved at a time when the pinnacle of real time mechanical recording was the typewriter and there was no viable and economical means of audio-video recording of the trial. In the present time when we not only have technological means to audio-video record the trial and also accurately and instantaneously transcribe what is said in the trial, there is no reason to still adhere to the procedure evolved in that by gone era.

The procedure I recommend for recording evidence is as follows:

1. The process of recording the evidence shall be by audio-video recording.

2. The evidence will be recorded in the presence of the Judge. The Judge will not transcribe or translate the evidence. The Judge will only monitor the process and adjudicate on the issues of admissibility and relevance as they arise.

3. The conversation/interview between the advocate and the witness, the rulings of the Judge will all be recorded using audio-video recording devices.

4. As far as technology permits the audio-video recording will be transcribed live or at a later point of time.

5. The audio-video recording and the transcript will be secured with digital signatures and other security methods to ensure that the recordings cannot be tampered with and its authenticity is assured.

6. The audio-video recording and its transcript will be treated as the deposition of the witness.

This is not something new. Already the Supreme Court is providing live transcription of its hearings. In arbitration proceedings the above-described procedure is already being adopted. As of now live transcription is available for English language. But applications are being developed for live transcription in all languages in India.⁴⁵

The equipment that has to be used for this purpose is not very expensive. The capabilities of the audio-video recording equipment now available for general consumption is more than sufficient to make audio-video recordings of exceptional quality. Courts can employ people to transcribe the statements in other languages. Moreover, software has already been developed to allow the computers to transcribe languages other than English. Once that software reaches acceptable levels of accuracy the transcription into any language can be done automatically and simultaneously with the recording of evidence. Therefore, this procedure is technologically feasible and economical.

The law has to be changed to adopt this mode of recording evidence. This requires the legislature to do away with the stipulation that the Judge should transcribe the evidence and that the evidence should be recorded in the form of a statement. The entire audio-video recording and its transcript should be treated as evidence.

This will remedy all the issues discussed in the previous section and will also ensure absolute accuracy in the recording of oral evidence and the evidence will be what the witnesses actually deposed. Since the Judge will not be transcribing and translating the evidence, its accuracy will not depend upon the language skills of the Judge and also will be free from all linguistic bias. The transcript will only reproduce verbatim what the advocate and the witness and the Judge state in the recording.

Another important thing will be that the demeanour of the witnesses and the advocates will be recorded. Human conversations include not only words but also gestures, body posture and facial expressions. By these one can judge whether a witness is speaking truth. In the present form even though the law says the demeanour can be recorded, actual recording of demeanour is constrained by the limitations imposed by the written word and language skills. Further the manner of answering questions depends much on the manner in which the advocate puts them. The manner in which the questions are phrased will also determine the answer. Sarcasm, insinuations, badgering and outright insults will not come into the record and will be filtered out when the Judge is transcribing the evidence. The witnesses can be combative, non-cooperative, sullen. All these do not transcribe into the deposition recorded by the Judge. With audio-video recording all these will come on record.

It will also save time. The process of putting a question by the advocate, the witness answering and the Judge translating and transcribing the answer and dictating it to the typist and the typist typing it consumes a lot of time. Since this process is not required the time taken will only be determined by the number of questions the advocate puts and the time taken by the witness to answer the questions.

This also enables the advocates to effectively cross-examine the witnesses. Sometimes when the examination is paused for the answer of the witnesses to be transcribed, the advocate may lose the thread of the questions in the process of observing what is being transcribed. If the audio-video recording process is adopted, the advocate can ask questions without requiring to pause after every question until the answer to his previous question is transcribed and recorded.

Certain issues have to be addressed with this process. In cases where vulnerable witnesses depose, especially in trial of sexual offences where the victims depose evidence, the audio-video recordings cannot be furnished to the accused. There will always be a possibility of the recordings being published. In such cases only the transcripts have to be furnished.

Special security measures have to be implemented both to authenticate the recordings and prevent tampering and also to securely store the recordings. Already Judges in the State of Telangana are provided with digital signatures for signing digital documents. Similar security measures can be provided to secure such recordings. Data access regulations have to be created to ensure that there will not be any unauthorised access to this data and also to protect the privacy of the vulnerable witnesses. Insofar as other cases are concerned the use of this evidence will be similar to the manner in which the depositions of witnesses are being used at present.

Further this process will generate enormous amount of data in the form of audio-video files and transcripts that have to be stored indefinitely. Ideally it should be stored in a manner that is quickly and securely accessible. It should also be stored in such a manner that it cannot be corrupted or lost due to physical damage to the storage medium. So, cloud storage in remote secure locations with multiple backups may be considered. Nowadays data storage costs have also come down. Therefore, the economic cost of this process will not be prohibitive.

These are issues that can be addressed without much difficulty. But what we achieve, if audio-video recording of oral evidence in trial is implemented, is absolute accuracy in recording of evidence. I am of the humble opinion that accuracy in recording of oral evidence should outweigh all considerations of cost.

Conclusion

In conclusion, it bears repetition that the search for the truth cannot be handicapped by the limitations imposed by the processes of transcribing and translation. Any error in interpretation of evidence can be corrected in appeal, but error in recording evidence cannot be corrected. It is high time that we change the manner in which we record evidence in civil and criminal trials.

The provisions governing the modes of recording evidence in criminal trials have not changed in the new Code. Though the words “audio-video” are inserted in various provisions of the new Code, they do not fundamentally alter the manner in which evidence is recorded in criminal trials. The new Code has verbatim reproduced the provisions of the old Code. But it is only a matter of suitably amending the provisions of the new Code and CPC to facilitate the recording of oral evidence through audio-video recording.

The adoption of this process is not so expensive or technologically infeasible as to be impossible. We just have to change the manner in which we are currently working. But the beneficial impact of the accuracy in recording evidence far outweighs any difficulties we may face in implementing audio-video recording of evidence.