Mukta Gupta, J.

1. As the relief was sought against the prosecutrix who had not been impleaded as a party initially, this Court vide order dated 30th September, 2011 directed the Petitioner to implead the prosecutrix as a party. Accordingly she was impleaded as Respondent No.2.

2. The Petitioner is facing trial for offence under Sections 313/493/495/306/376/494/120B IPC in case FIR No. 251/2001 registered at P.S. Tughlak Road. The allegations as set out by the prosecutrix who has been examined in the Court are that she got married to the Petitioner at Ambala whereafter he made relations with her. The Petitioner under the influence of liquor had sexual intercourse with the prosecutrix and he represented that he had divorced his earlier wife which fact was later found to be incorrect.

3. The defence of the Petitioner is that the prosecutrix of her free will was having a live-in-relationship with him. To prove his defence, the Petitioner during the cross-examination of the prosecutrix on 25th February, 2008 produced tape-recorded conversation of the prosecutrix wherein she had conceded her love affair with the Petitioner knowing fully well of his earlier marriage. The prosecutrix denied the voice recorded in the tape-recorded conversation to be her voice during cross-examination on 25th February, 2008. Thus, on 21st April, 2009 when the prosecution evidence was still going on, the Petitioner moved an application under Section 45 of the Evidence Act before the learned Trial Court seeking directions to record voice sample of the prosecutrix and to send the same to CFSL for identification of the voice. In the application, the Petitioner alleged that he was falsely implicated in this case and during the pendency of the trial, the prosecutrix used to make telephone calls and she also called the Petitioner to meet her at Gurudwara Bangla Sahib, Delhi on 31st July, 2004. During the conversation, she admitted having an affair with co-accused Vinod Kumar. He, thus, sought directions to record the voice sample of prosecutrix and to send the same for scientific identification. This application was kept pending and only on conclusion of the defence evidence on 1st October, 2009 it was noted that this application was pending. The learned Trial Court, after hearing the arguments, dismissed the application primarily on the ground that the prosecutrix has been cross-examined at length on different counts and no single question has been asked about the conversation. The learned Trial Court also observed that the application was filed only to delay the trial.

4. Aggrieved by the impugned order, the Petitioner filed the present petition seeking directions as prayed before the learned Trial Court. The contention of the Petitioner is that by denying the voice sample, fair trial as enshrined by the Constitution is denied to him. The tape-recorded conversation is a primary evidence duly admissible in law. It is like any previous statement which can be used to contradict the evidence given before the Court as well as to test the veracity of the evidence and to impeach the credibility of the witness.

5. Reliance is placed on the decision of the Constitution Bench in N. Sri Rama Reddy & Ors. Vs. The Attorney-General of India, AIR 1971 SC 1162 relying upon Yusufalli Esmail Nagree vs. State of Mahrashtra, AIR 1968 SC 147. It is contended that the conversation between the accused and the Complainant which is tape-recorded, is a contemporaneous evidence and is relevant under Section 8 Evidence Act. Further like a photograph of a relevant incident, a contemporaneous tape recording of a relevant conversation is a relevant fact under Section 7 of the Evidence Act. Relying on Dial Singh Narain Singh vs. Rajpal, AIR 1969 Punjab and Haryana 350 it is contended that for use of an earlier tape-recorded statement, the identification of the taped voice is crucial and indeed such proper identification of the voices is the sine qua non for the use of the said tape-r