1985 INSC 0241
                                               Ram Singh and Others

                                                           Vs

                                                   Col. Ram Singh

                                          Civil Appeal No. 6623 of 1983

                    (Syed . Murtaza Fazal Ali, A.Varadarajan, Sabyasachi Mukharji JJ)

                                                      07.08.1985

                                                     JUDGMENT

FAZAL ALI, J. -

1. The election process in our country has become an extremely complex and complicated system
and indeed a very difficult and delicate affair. Sometimes, the election-petitioner, who has lost the
election from a particular constituency, makes out on the surface such a probable feature and
presents falsehood dextrously dressed in such a fashion as the truth being buried somewhere deep
into the roots of the case so as to be invisible, looks like falsehood which is depicted in the garb of
an attractive, imposing and charming dress as a result of which some courts are prone to fall into the
trap and hold as true what is downright false. If, however, the lid is carefully opened, and the veil is
lifted, the face of falsehood disappears and truth comes out victorious.

2. In such cases the judicial process and the judicial approach has to be both pragmatic and
progressive so that the deepest possible probe is made to get at the real truth out of a heap of dust
and cloud. This is indeed a herculean task and unless the Court is extremely careful and vigilant, the
truth may be so completely camouflaged that falsehood may look like real truth.

3. Of course, the advocacy of the counsel for the parties does play a very important role in unveiling
the truth and in borderline cases the courts have to undertake the onerous task of, "disengaging the
truth from falsehood, to separate the chaff from the grain". In our opinion, all said and done, if two
views are reasonably possible-one in favour of the elected candidate and the other against him -
courts should not interfere with the expensive electoral process and instead of setting at naught the
election of the winning candidate should uphold his election giving him the benefit of the doubt.
This is more so where allegations of fraud or undue influence are made.

4. These observations have been made by us in order to decide election cases with the greatest
amount of care and caution, consideration and circumspection because if one false step is taken, it
may cause havoc to the person who loses.

5. It is not necessary for us to dwell on or narrate the facts of the case of the parties which have been
detailed by the High Court in very clear and unambiguous terms. To repeat the same all over again
might frustrate the very object of deciding election petitions with utmost expedition. Even so, it may
be necessary for us to give a bird's-eye view and a grotesque picture of the important and dominant
elements of the controversy between the parties in order to understand which of the two cases
presented before us is true.
6. The evidence in the present case consists of -

                  (a) oral evidence of the witnesses of the parties,

                  (b) the documentary evidence,

                  (c) the evidence consisting of the tape-recorded statements of the conversation
                  between the Deputy Commissioner and the respondent, Col. Ram Singh,
                  corroborated by the respondent himself who was examined as a court witness by us
                  in this Court and both sides were given full opportunity to cross-examine him,

                  (d) important points of law arising out of the arguments presented before us, and

                  (e) authorities of this Court or other courts cited before us.

7. For the purpose of understanding the truth and the spirit of the matter a scientific dichotomy of
the case had to be made which may include the following factors :

                  (a) time and manner of voting,

                  (b) allegation of booth capturing,

                  (c) role played by the electoral authorities who may have acted honestly yet the
                  possibility of their falling an easy prey to the machinations of one side or the other
                  cannot be safely eliminated which may lead to an error of judgment on their part.
                  This should be fully guarded against as also the possibility of their being attracted by
                  any false temptation,

                  (d) where the proof of a corrupt practice is the very cornerstone and the bedrock of
                  the case set against the successful candidate, the court should be doubly sure that it is
                  not lured to fall in the labyrinth of chaos and confusion by easily holding that the
                  corrupt practice alleged has been proved.

8. With this short prelude, we would now proceed to give an exhaustive glimpse of the contentions
raised before us by the parties. Before, however, we do that we must record our appreciation and
gratefulness to the counsel for both the parties who in a big case like this had been fair enough to
confine their arguments only to two polling stations, viz., Kalaka and Burthal Jat, which has
rendered our task much easier besides saving a lot of time, labour and expense. We also feel
indebted to the learned counsel for the parties for having argued the case with dexterity and brevity
which, as it is said, is the "soul of wit".

9. The present appeal arises out of an election held on May 19, 1982 to the Haryana Vidhan Sabha
from Rewari constituency No. 86. In view of the concession made by the counsel for the parties, we
are concerned in this appeal only with two polling booths, viz., Kalaka and Burthal Jat. It appears
that there were as many as five candidates and Col. Ram Singh (respondent) seems to have been
pitted against the aforesaid candidates.

10. The bedrock of the allegations made by the appellants against the respondent was that he has
been painted to be a most undependable and unreliable person from the moral point of view as
having changed sides with one party or the other to suit his needs and divided his loyalties by
playing a dirty game of politics in that he changed sides without any fixed ideology and the only
principle which, according to the appellants, the respondent had, was lust for power. It may be
pertinent to note here that the respondent had also alleged that Rao Birendra Singh, who, according
to him, was the evil genius of the whole show, had set up his sister, Sumitra Bai, to contest the
election in order to get the respondent out of the way. However, we are not at all concerned with any
of these matters or allegations which appear to be foreign to the scope of the present appeals nor are
these matters of which any serious notice can be taken because as Shakespeare has said "everything
is fair in war and love" and the responde

11. So far so good. A conspicuous fact may however be noticed here, viz., that clear and specific
allegations with facts and figures regarding the corrupt practices indulged in by the respondent have
not been alleged in the first part of the election petition itself. The allegations, however, have been
detailed in the statement of particulars submitted by the appellants, who were certainly entitled to do
so but we should have expected some definitive and specific allegations regarding the nature of the
fraud or the corrupt practices committed by the respondent as briefly as possible in the main part of
the petition itself. Therefore, this is doubtless a relevant factor in judging the truth of the particulars
mentioned in the statement more particularly when the onus of proving the corrupt practice lies
entirely on the election petitioner who must demonstrably prove the same.

12. And now a pointed peep into the salient features of the facts of the case. To begin with, the
arguments of the appellants are confined only to the Kalaka and Burthal Jat polling booths. Before
we proceed further we might at this stage briefly indicate, shorn of details, the nature, character and
the extent of the allegations regarding the corrupt practices and booth capturing alleged to have been
indulged in by the respondent on the basis of which the appellants seek to set aside the election of
the respondent.

13. As regards Kalaka, (1) it was alleged that the respondent appeared at the scene at about 10.30
a.m. with 50-60 persons and was himself armed with a gun while his companions had guns, sticks
and swords. By sheer, show of force, the voters were threatened and pressurised as a result of which
they ran away without exercising their votes. In other words, the allegation is that as a result of the
serious threat held out by the respondent, the voters were deprived of their valuable right of
franchise.

                  (2) The respondent along with his companions entered the booth and terrorised the
                  polling officer as also the polling agents (Basti Ram and Ishwar) of the Congress (I)
                  candidate who were assaulted by the respondent by the butt-end of the barrel of his
                  gun.

                  (3) The respondent and others at gunpoint snatched away about 50 ballot papers from
                  the polling staff and after marking them in his (respondent) favour put them into the
                  ballot box.

                  (4) The respondent and his companions at his (respondent) instance thumbmarked the
                  counterfoils of the ballot papers also.

14. As regards Burthal booth, (1) the appellants alleged that almost the same modus operandi was
adopted by the respondent and he directed his supporters to prevent the voters from entering the
booth, thereby depriving them of the opportunity of exercising their right to vote.
(2) Not content with this, the respondent left behind his relations Anil Kumar and Satbir Singh to
carry on the aforesaid activities and gave further instructions that the maximum number of votes
should be polled in his favour.

15. Thus, so far as Kalaka and Burthal polling booths are concerned, two important corrupt
practices have been alleged by the appellants :

                  (1) forcible polling of votes, and

                  (2) preventing the genuine voters from exercising their right to vote.

16. It manifestly follows that once it is proved that the respondent was not present at the time of the
incidents at Kalaka and Burthal, the case of the appellants falls like a pack of cards because it is well
settled by several authorities of this Court that the corrupt practice must be committed by the
candidate or his polling agent or by others with the implicit or explicit consent of the candidate or
his polling agent. Where, however, the supporters of a candidate indulge in a corrupt practice on
their own without having been authorised by the candidate or his polling agent, the election of the
returned candidate cannot be voided. We might mention here that the last factor indicated by us is
conspicuously absent in this case taking ex facie the entire facts narrated by the appellants in their
pleadings or in the evidence.

17. Before, however, analysing and marshaling the evidence we would like to refer to the authorities
of this Court and other courts regarding the necessary precautions to be taken in approaching
evidence in election cases and the principles laid down by us. We would also deal with the extent of
the admissibility of the evidence of the tape-recorded statements alleged to have been made by some
of the witnesses in the tape recorder recorded by PW 7, the Deputy Commissioner.

18. As regards the principles enunciated by this Court regarding the nature and the standard of proof
of corrupt practice alleged by an election petitioner against the successful candidate, though it is not
necessary for us to burden our judgment with multiplicity of authorities yet the ratio of some of the
important decisions which are directly in point may be briefly stated.

19. To begin with, as far back as 1959 in Ram Dial v. Sant Lal, this Court observed thus :

                  What is material under the Indian law, is not the actual effect produced, but the doing
                  of such acts as are calculated to interfere with the free exercise of any electoral right.
                  Decisions of the English courts, based on the words of the English statute, which are
                  not strictly in pari materia with the words of the Indian statute, cannot, therefore, be
                  used as precedents in this country.

20. In Samant N. Balakrishna v. George Fernandez, this Court while dwelling on the principles to be
followed in election cases pithily pointed out thus : (SCC pp. 261-62, para 47)

                  The principle of law is settled that consent may be inferred from circumstantial
                  evidence but the circumstances must point unerringly to the conclusion and must not
                  admit of any other explanation. Although the trial of an election petition is made in
                  accordance with the Code of Civil Procedure, it has been laid down that a corrupt
                  practice must be proved in the same way as a criminal charge is proved. In other
                  words, the election petitioner must exclude every hypothesis except that of guilt on
                  the part of the returned candidate or his election agent.
21. In Ch. Razik Ram v. Ch. Jaswant Singh Chouhan, this Court laid down the following principles :
(SCC pp. 776 & 801, paras 15 & 118)

                  Before considering as to whether the charges of corrupt practice were established, it
                  is important to remember the standard of proof required in such cases. It is well
                  settled that a charge of corrupt practice is substantially akin to a criminal charge. The
                  commission of a corrupt practice entails serious penal consequences. It not only
                  vitiates the election of the candidate concerned but also disqualifies him from taking
                  part in elections for a considerably long time. Thus, the trial of an election petition
                  being in the nature of an accusation, bearing the indelible stamp of quasi-criminal
                  action, the standard of proof is the same as in a criminal trial.

                  # * * *##

                  Secondly, even if the nature of the trial of an election petition is not the same in all
                  respects as that of a criminal trial, the burden of proving each and every ingredient of
                  the charge in an election petition remains on the petitioner. If a fact constituting or
                  relevant to such an ingredient is pre-eminently within the knowledge of the
                  respondent, it may affect the quantum of its proof but does not relieve the petitioner
                  of his primary burden.

22. In Balwan Singh v. Prakash Chand, Shinghal, J. made the following observations : (SCC p. 454,
para 34)

                  Another argument of Mr. Bindra was that the corrupt practice in question should not
                  have been found to have been committed as the election petitioners did not examine
                  themselves during the course of the trial in the High Court. There was however no
                  such obligation on them, and the evidence which the election petitioners were able to
                  produce at the trial could not have been rejected for any such fanciful reason when
                  there was nothing to show that the election petitioners were able to give useful
                  evidence to their personal knowledge but stayed away purposely.

23. In the case of Sultan Salahuddin Owasi v. Mohd. Osman Shaheed, to which one of us (Fazal Ali,
J.) was a party, this Court observed thus : (SCC p. 283, para 3)

                  It is now well settled by a large catena of the authorities of this Court that a charge of
                  corrupt practice must be proved to the hilt, the standard of proof of such allegation is
                  the same as a charge of fraud in a criminal case.

24. In Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, to which two of us were parties, this
Court observed thus : (SCC pp. 651-52, paras 3 & 9)

                  The sum and substance of these decisions is that a charge of corrupt practice has to
                  be proved by convincing evidence and not merely by preponderance of probabilities.
                  As the charge of a corrupt practice is in the nature of a criminal charge, it is for the
                  party who sets up the plea of 'undue influence' to prove it to the hilt beyond
                  reasonable doubt and the manner of proof should be the same as for an offence in a
                  criminal case. This is more so because once it is proved to the satisfaction of a court
                  that a candidate has been guilty of 'undue influence' then he is likely to be
                  disqualified for a period of six years or such other period as the authority concerned
                  under Section 8-A of the Act may think fit.

                  By and large, the Court in such cases while appreciating or analysing the evidence
                  must be guided by the following considerations :

                  (1) the nature, character, respectability and credibility of the evidence,

                  (2) the surrounding circumstances and the improbabilities appearing in the case,

                  (3) the slowness of the appellate court to disturb a finding of fact arrived at by the
                  trial court who had the initial advantage of observing the behaviour, character and
                  demeanour of the witnesses appearing before it, and

                  (4) the totality of the effect of the entire evidence which leaves a lasting impression
                  regarding the corrupt practices alleged.

25. This, therefore, concludes the question regarding the standard of proof.

26. As heavy reliance was placed by the appellants on Ex. P-1 (the tape-recorded statements of RWs
1 to 3) as also the statements recorded in the same tape recorder by PW 7 which included the
statement of the respondent, in order to allay all doubts and satisfy ourselves regarding the
genuineness of the statements made in the tape recorder we have examined the respondent as a court
witness in this Court and allowed him to be cross-examined by both sides. We would deal with the
nature and the relevancy of the statements at a later part of our judgment. But before that we would
like to settle the controversy between counsel for the parties as to the extent of admissibility of
evidence recorded on tape recorder or other mechanical process.

27. It seems to us that the matter here is not free from difficulty but the preponderance of authorities
- Indian and foreign - are in favour of admissibility of the statement provided certain conditions and
safeguards are proved to the satisfaction of the Court. We now proceed to discuss the various
ramifications and the repercussions of this part of the case.

28. This Court had the occasion to go into this question in a few cases and it will be useful to cite
some of the decisions. In Yusufalli Esmail Nagree v. State of Maharashtra, this Court, speaking
through Bachawat, J., observed thus :

                  If a statement is relevant, an accurate tape record of the statement is also relevant and
                  admissible. The time and place and accuracy of the recording must be proved by a
                  competent witness and the voices must be properly identified. One of the features of
                  magnetic tape recording is the ability to erase and re-use the recording medium.
                  Because of this facility of erasure and re-use, the evidence must be received with
                  caution. The court must be satisfied beyond reasonable doubt that the record has not
                  been tampered with.

                  # * * * *##

                  The tape was not sealed and was kept in the custody of Mahajan. The absence of
                  sealing naturally gives rise to the argument that the recording medium might have
                  been tampered with before it was replayed.
29. In the case of N. Sri Rama Reddy v. V. V. Giri, the following observations were made : (SCC p.
348, para 24)

                  Having due regard to the decisions referred to above, it is clear that a previous
                  statement, made by a person and recorded on tape, can be used not only to
                  corroborate the evidence given by the witness in court but also to contradict the
                  evidence given before the court, as well as to test the veracity of the witness and also
                  to impeach his impartiality.

30. In R. M. Malkani v. State of Maharashtra, this Court laid down the essential conditions which, if
fulfilled or satisfied, would make a tape-recorded statement admissible otherwise not; and observed
thus : (SCC p. 477, para 23)

                  Tape-recorded conversation is admissible provided first the conversation is relevant
                  to the matters in issue secondly, there is identification of the voice; and thirdly, the
                  accuracy of the tape-recorded conversation is proved by eliminating the possibility of
                  erasing the tape record.

31. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, Beg, J. (as he then was) made
the following observations : (SCC p. 26, para 19)

                  We think that the High Court was quite right in holding that the tape-records of
                  speeches were 'documents', as defined by Section 3 of the Evidence Act, which stood
                  on no different footing than photographs, and that they were admissible in evidence
                  on satisfying the following conditions :

                  (a) The voice of the person alleged to bespeaking must be duly identified by the
                  maker of the record or by others who know it.

                  (b) Accuracy of what was actually recorded had to be proved by the maker of the
                  record and satisfactory evidence, direct or circumstantial, had to be there so as to rule
                  out possibilities of tampering with the record.

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

32. Thus, so far as this Court is concerned the conditions for admissibility of a tape-recorded
statement may be stated as follows :

                  (1) The voice of the speaker must be duly identified by the maker of the record or by
                  others who recognise his voice. In other words, it manifestly follows as a logical
                  corollary that the first condition for the admissibility of such a statement is to
                  identify the voice of the speaker. Where the voice has been denied by the maker it
                  will require very strict proof to determine whether or not it was really the voice of
                  the speaker.

                  (2) The accuracy of the tape-recorded statement has to be proved by the maker of the
                  record by satisfactory evidence-direct or circumstantial.

                  (3) Every possibility of tampering with or erasure of a part of a tape-recorded
                  statement must be ruled out otherwise it may render the said statement out of context
                  and, therefore, inadmissible.

                  (4) The statement must be relevant according to the rules of Evidence Act.

                  (5) The recorded cassette must be carefully sealed and kept in safe or official
                  custody.

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

33. The view taken by this Court on the question of admissibility of tape-recorded evidence finds
full support from both English and American authorities. In R. V. Maqsud Ali, Marshall, J.,
observed thus :

                  We can see no difference in principle between a tape-recording and a photograph. In
                  saying this we must not be taken as saying that such recordings are admissible
                  whatever the circumstances, but it does appear to this Court wrong to deny to the law
                  of evidence advantages to be gained by new techniques and new devices, provided
                  the accuracy of the recording can be proved and the voices recorded properly
                  identified; provided also that the evidence is relevant and otherwise admissible, we
                  are satisfied that a tape-recording is admissible in evidence. Such evidence should
                  always be regarded with some caution and assessed in the light of all the
                  circumstances of each case. There can be no question of laying down any exhaustive
                  set of rules by which the admissibility of such evidence should be judged.

34. We find ourselves in complete agreement with the view taken by Marshall, J., who was one of
the celebrated Judges of the Court of Criminal Appeal. To the same effect is another decision of the
same Court in R. V. Robson where Shaw, J., delivering a judgment of the Central Criminal Court
observed thus :

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

                  # * * *##

                  During the course of the evidence and argument on the issue of admissibility the
                  recordings were played back many times. In the end I came to the view that in
                  continuity, clarity and coherence their quality was, at the least, adequate to enable the
                  jury to form a fair and reliable assessment of the conversations which were recorded
                  and that with an appropriate warning the jury would not be led into an interpretation
                  unjustifiably adverse to the accused. Accordingly, so far as the matter was one of
                  discretion, I was satisfied that no injustice could arise from admitting the tapes in
                  evidence and that they ought not to be excluded on this basis.

35. In American Jurisprudence 2d (Vol. 29) the learned author on a conspectus of the authorities
referred to in the foot-note in regard to the admissibility of tape-recorded statements at page 494
observes thus :
                  The cases are in general agreement as to what constitutes a proper foundation for the
                  admission of a sound recording, and indicate a reasonably strict adherence to the
                  rules prescribed for testing the admissibility of recordings, which have been outlined
                  as follows :

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

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

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

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

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

                  (6) identification of the speakers; and

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

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

36. We would, therefore, have to test the admissibility of the tape-recorded statements of the
respondent, given in the High Court as also in this Court, in the light of the various tests and
safeguards laid down by this Court and other courts, referred to above. We shall give a detailed
survey of the nature and the character of the statement of the respondent in a separate paragraph
which we intend to devote to this part of the case, which is really an important feature and, if
accepted, may clinch the issue and the controversy between the parties on the point of corrupt
practice.

37. This now brings us to a summary of the nature of the evidence produced by the parties. As
already stated counsel for the parties confined their arguments only to the validity of the election
relating to Kalaka and Burthal Jat polling booths.

38. By virtue of a notification dated April 17, 1982 the Governor of Haryana called upon the voters
to elect Members to the Vidhan Sabha. The last date for filing the nomination papers was April 24,
1982, the date for scrutiny was April 26, 1982 and April 28, 1982 was the last date for withdrawal
of candidature. The polling was held on May 19, 1982 and the counting of votes took place on May
20, 1982. It is the last date with which we are mainly concerned. To begin with, it appears that 24
persons had filed their nomination papers out of which three were rejected by the Returning Officer
and 16 persons withdrew their candidature, leaving five persons in the field. Smt. Sumitra Devi was
a nominee of the Congress (I) Party and the respondent filed his nomination papers initially as an
Independent candidate but later on joined Congress (J) Party. The respondent was first in the army
but he resigned soon after the Indo-Pakistan war in 1971 and started doing business as a diesel
dealer in partnership with others.

Kalaka Polling Booth

39. We would first take up the allegations levelled by the appellants against the respondent
regarding the corrupt practices relating to the Kalaka polling booth. According to the evidence of
RW 1, the polling started at 7.30 a.m. and went off peacefully without any untoward incident till
10.30 a.m. Near abut this time, according to the allegations of the appellants, the respondent arrived
with a posse of 60-70 persons, including Des Raj, Ram Kishan and others, to create disturbance in
the polling and to prevent the votes from being polled in favour of other parties. It is also alleged
that a mob of 40-50 persons was variously armed with guns, lathis and swords, and the respondent
himself was armed with a gun. As a result of the activities of the respondent, some of the voters like
Shiv Charan, Gurdial and others were forced to run away without exercising their right to vote. It
was further alleged that not to speak of the voters even the polling staff was not allowed to do its
duty which resulted in the vot

40. These in short, are the allegations of the appellants against the respondent in respect of Kalaka
polling booth. We shall now refer to the evidence led by both the parties on these particular points to
show how far deposed in favour of the appellants in respect of this polling booth. In order to rebut
the evidence led on behalf of the appellants, the respondent produced Roop Chand (RE 1), Deen
Dayal (RW 2), constable Mohinder Singh (RW 3), Dhani Ram (RW 4), Ram Kishan (RW 5) and
Suresh (RW 6) besides respondent himself (RW 22).

41. Having gone through the evidence led on behalf of both the appellants and the respondent, we
are clearly of the opinion that despite the quantity of the appellants' witnesses, the quality of the
respondent's witnesses appears to be much superior to that of the PWs in regard to the respective
facts stated by them.

42. We would like to discuss the evidence of the respondent witnesses by way of a comparative
assessment in relation to the evidence led by the appellants so that a true picture of the cases of the
parties may come out conspicuously which would throw a flood of light on the credibility of the
witnesses concerned.

43. We shall now show that the statement of RW 1 seems to find intrinsic support from the star
witness of the appellants, viz., PW 7, the Deputy Commissioner. PW 7 is a high officer and,
therefore, a respectable witness though, with due respect, we might say that his performance in this
case has not been very satisfactory and his conduct leaves much to be desired. Without going into
further details we might mention that his action in recording the statement of the witnesses on a tape
recorder without taking the necessary precautions and safeguards cannot be fully justified. We are
not able to understand as to why should he have taken the risk of recording the statements on a tape
recorder knowing full well that the evidentiary value of such a tape recorded statement depends on
various factors. Since PW 7 was accompanied by his stenographer, there could have been no
difficulty in recording the statement of the persons concerned by dictating their statements to him
and after being typed, signed the same and ta

44. That there were some erasures and lot of other voices has been admitted by PW 7 himself in his
statement where he stated thus :

                  Some gaps in Ex. P-1 have been left out, where the voice was not clear and audible.

                  # * * *##

                  Many people were standing at the polling booth whose voices have been recorded in
                  the tape.
                  # * * *##

                  I cannot now identify the person whose voices I had recorded in the tape. I also
                  cannot distinguish the name of person whose voice I had recorded after hearing the
                  tape. . . . My stenographer had prepared the transcript Ex. P-1. It was prepared in my
                  office. Most of it was done under my supervision. I might have been temporarily
                  absent to attend to certain other work.

45. Thus, even accepting the statement of PW 7 at its face value it appears that the various
safeguards and precautions which the law requires to be taken while recording the statement on a
tape recorder were not observed by him. That by itself is sufficient to discard the statement of the
respondent recorded on the tape recorder without going into the merits of the said statement. Even
so, we shall deal with this matter in detail when we take up the recorded statements in the cassette in
the light of the evidence of the respondent who had been examined by as a court witness to throw
light on the subject.

46. Another serious infirmity from which the evidence of this witness suffers is that while he
himself admits that he was not in a position to identify the voices of the persons whose statements
he had recorded, RW 1, who was an alternative Presiding Officer at Kalaka polling booth, has
completely denied to have made any statement as recorded in the cassette completely denied to have
made any statement as recorded in the cassette and asserts that the had absolutely no talk with PW 7.
Similarly, RW 3 (constable) stated that PW 7 had talked only to the Presiding Officer and to no
other member of the polling staff. No evidence has been produced by the appellants to rebut this
part of the evidence of RW 3. RW 3 says in unconditional terms as follows :

                  I did not make any such statement which is recorded in the tape. The voice recorded
                  in the tape is not my voice.

                  The statement of the witness which is transcribed in Ex. P-1 was also put to the
                  witness. After hearing the same, the witness stated :

                  I did not make any such statement to the Deputy Commissioner, nor he interrogated
                  me.

47. It would thus appear that the two witnesses for the respondent, who were government servants
and therefore official witnesses, clearly and categorically denied having made any such statement in
the cassette. PW 7 himself has very fairly and frankly stated that he was not in a position to identify
the voices either of the respondent or of the witnesses for the respondent (RWs 1 and 3) at the time
of giving his evidence. This, therefore, throws a considerable doubt on truth of the statement made
by these witnesses in the cassette recorder. The law which has been analysed and examined by us is
very clear that identification of the voices is very essential. In this view of the matter, the tape-
recorded statements lose their authenticity apart from other infirmities which we shall give later
while appreciating the evidence of the respondent in this Court

48. Another circumstance that goes a long way off to demolish the edifice and the structure of the
appellants' case regarding the Kalaka polling booth is the statement of PW 7 himself. According to
the consistent evidence of RWs 1-6, no incident had happened nor was any trouble created by the
respondent but instead the musclemen of the appellants led by Ajit Singh tries to create all sorts of
trouble, information of which was sent to the Deputy Commissioner. Here, we might notice the
admission of PW 7 where he states as follows :

                  At about 10.30 a.m., when I was between Mandola and Zainabad villages in Jatsuaha
                  constituency, I received a message on the wireless, the apparatus of which I was
                  having in my motor car, that Col. Ram Singh had complained against the workers of
                  Congress (I). The complaint was that about 40 to 50 Congress (I) workers had
                  attacked the Congress (J) workers at village Kalaka.

49. If the wireless message was sent to the D. C. at about 10.30 a.m. there could be no question of
the respondent or his people to have visited Kalaka polling booth in order to create disturbance.
This, therefore, intrinsically supports the case of the respondent and demolishes the case of the
appellants about the arrival of Col. Ram Singh and his relations, Satbir Singh and Anil Kumar.

50. It was also in evidence that after the first incident of the morning (wireless message received by
PW 7) two motor cycles are said to have been left behind. It is manifest that if the persons who had
committed the disturbances along with their companions did not belong to the party of the
respondent, as the wireless message shows, then the only other irresistible conclusion, by the
process of elimination, would be that the motor cycles must have belonged to Ajit Singh and his
companions who were supporters of the Congress (I) candidate.

51. Thus, this being the position and the real state of affairs at the spot, in a case like the present one
involving high stakes and serious handicaps, we should have expected the conduct of the senior
officers to have been completely above-board.

52. Another reason which throws a considerable doubt on the testimony of the witnesses of the
appellants is that PW 7 himself deposed that he did not receive any written complaint from the
polling officer or the Presiding Officer or from any other person at the time when he visited the
Kalaka polling booth. The appellants tried to bring on file certain complaints made to PW 7 by
Suraj Bhan and others but as the original complaint had not been filed the complaint produced by
the appellants apart from being clearly inadmissible cannot be relied on particularly in face of the
clear admission of the Deputy Commissioner (PW 7) that he did not receive any written complaint
from the officer concerned.

53. Another intrinsic circumstance which demolishes the case of the appellants about the presence
of a mob headed by Satbir Singh and Anil Kumar (said to be relatives of respondent) is that PW 10
(ASI) who was accompanying the D. C. said that he received the information that one of the
candidates, viz., Col. Ram Singh, along with some persons had reached Kalaka polling booth and
started intimidating the polling staff and the public. Here this witness is sadly contradicted by the
statement of the Deputy Commissioner that the wireless message received by him was not in respect
of Col. Ram Singh and his men but the message which the D. C. actually received was that the
disturbance was created by one Ajit Singh at the instance of the Congress (I) candidate. It is,
therefore, impossible to accept the case of the appellants that the respondent and his companions on
the one hand and Ajit Singh with a posse of his own men on the other had reached the Kalaka
polling booth at almost the same time. Indeed, if this had

                  I have seen the file of complaints which has been shown to me now. That complaint
                  is not in this complaint file.

54. What happened to the complaint received by the witness (PW 10) is not known or can be
anybody's guess - perhaps the same vanished into thin air or may be was non-existent.

55. The matter does not rest here but there is one more inherent circumstance which completely
falsifies the case of the appellants. The Presiding Officer was shown Ex. P-5 and he stated that he
had not mentioned anything in the said document about intimidation of the voters and other persons.
He (PW 8) categorically states thus :

                  I have seen Ex. P-5. Column No. 20(e) is to furnish information about "Intimidation
                  of voters and others persons". I have not mentioned anything in this column but have
                  crossed it.

56. Indeed, if there was any such intimidation, being the Presiding Officer he would not have
crossed the column regarding the same. He admits that he had served in the Ahir High School which
appears to have been patronized by Rao Birendra Singh and the possibility that this witness
concealed the truth (as appears from his evidence) and made a statement regarding intimidation to
oblige Rao Birendra Singh cannot be ruled out. This is because he merely denies knowledge that the
Ahir School belonged to Rao Birendra Singh but he does not say affirmatively that Rao Birendra
Singh had absolutely no connection with the said school.

57. Coming now to the rest of the evidence of RW1, he says that after the departure of Ajit Singh,
Col. Ram Singh came to the Kalaka polling booth and he was alone at that time. The respondent in
the presence of RW 1 told the Presiding Officer that he should not be partial to any party and
complained to him about the beating up of his polling agent. Hari Singh (PW 8), the Presiding
Officer assured the respondent that he would not permit anything further to happen. Thereafter, a
number of people came there and stoned the polling booth and despite the protests of the witness
and the Presiding Officer they tried to snatch the ballot box which was, however, protected by the
Presiding Officer. In the mean time, the police party arrived and the people who had gathered there
sped away. Much was made by the counsel for the appellants regarding omission of the witness
clearly admits that as the Presiding Officer was in-charge of the whole show, he had reported the
matter to him who had assured him that he would set t

58. RW 2, Deen Dayal, who was a member of the polling staff, fully corroborates the evidence of
RW 1 regarding the arrival of Ajit Singh armed with pistol and accompanied by a number of
persons. He further corroborates that some of the companions of Ajit Singh removed the polling
agent of Col. Ram Singh and then asked the witness and others to hand over the ballot papers but as
the witness resisted he was beaten up by Ajit Singh and others but on the intervention of the
Presiding Officer the matter rested there. Thereafter, Col. Ram Singh came who was also assured by
the Presiding Officer that needful would be done. A capital was made by the appellants before the
court below as also here regarding the veracity of this witness because he did not make any report to
the D. C. or the S. D. O. about his being beaten up. As already mentioned, the witness was merely a
teacher and he appears to have been satisfied by the assurance given to him by the Presiding Officer
that necessary action would be taken. He further

59. The next witness on the point is RW 3 (Mohinder Singh) who was a police constable deputed to
the spot to maintain law and order. The sequence of events that happened at the polling booth and
which have been deposed to by the witness may be summarised thus :

                  (1) While the polling was going on, between 7.30 and 8.00 a.m., Ajit Singh arrived
                  with his companions and tried to create all sorts of trouble.
                  (2) After the departure of Ajit Singh, Col. Ram Singh came alone and was assured by
                  the Presiding Officer that he would not allow any further trouble to take place.

                  (3) After Col. Ram Singh had left the place a number of people from the village
                  came and wanted to poll forcibly, and 2-3 persons came out of the polling booth with
                  a ballot box.

                  (4) He (RW 3) snatched the ballot box from the people and returned the same to
                  Dhani Ram (RW 4).

60. The witness states that after some time the S. D. O. came there and after having a talk with the
Polling (sic Presiding) Officer he went away. After about half an hour or 45 minutes of the
departure of the S. D. O., the D. C. arrived and on his intervention the polling again started at about
12 midday. The witness vehemently denied that his statement was recorded by the D. C. in a tape
recorder and said that the voice recorded in the tape recorder (which was played to him in court)
was not his. He even goes to the extent of saying that he did not see any tape recorder with the D. C.
nor did he have any talk with him.

61. The following important points may be noted from his testimony :

                  (1) The sequence of events narrated by him gives sufficient strength to the case of the
                  respondent;

                  (2) his positive evidence that the voice in the cassette was not his.

                  62. The witness was after all a police constable (a government official) and would
                  not have the courage to make a false statement before the D. C. Moreover, even the
                  D. C. in his statement has frankly admitted that he was not in a position to identify
                  the voice of this witness or for that matter of others at the time of his deposition.
                  Thus, in the eye of law, there is no legal evidence at all to prove that the voice
                  recorded in the tape recorder was the voice of this particular witness.

63. The next witness is RW 4 (Dhani Ram) who was also one of the members of the polling staff
and a teacher in a Government Primary School. He fully corroborates the story given by RWs 1 and
3 and also gives the sequence of events referred to above while dealing with the evidence of RW 3.
His evidence does not appear to be of much consequence. At any rate, the learned High Court has
fully discussed his evidence and we agree with the conclusions arrived at by the High Court in this
respect.

64. RW 5 appears to be a voter of the Kalaka polling booth. He has been examined to prove the fact
that when Ajit Singh and his party came to the booth, one Tula Ram who was a polling agent of
Col. Ram Singh and real brother of RW 5, was beaten up by Ajit Singh and his party and when he
tried to rescue him he was also beaten up and their clothes were torn and it was with great difficulty
that Mohinder Singh (RW 3) who was on duty rescued him and his brother from the clutches of Ajit
Singh and his party. He further states he, along with his brother Tula Ram, went to Rewari to meet
Col. Ram Singh and narrated the whole incident to him. In cross-examination, the witness says that
he and his brother had received fists and slaps as a result of which they bled because of injuries on
their bodies. He further says that as there was no visible mark of injury they did not get themselves
medically examined. He is an unsophisticated villager and once having reported the matter to Col.
Ram Singh he did not think it neces
65. RW 6 (Suresh) was also a voter waiting in a queue to cast his vote when at about 8.30 a.m. Ajit
Singh armed with a revolver, appeared on the scene and entered the booth. He heard hue and cry
from inside the booth. He corroborates the evidence of RW 5 about the beating up of Tula Ram and
Ram Kishan (RW 5). He goes on to states that after about half an hour of the departure of Ajit Singh
and his party, Col. Ram Singh came and after spending about 5-6 minutes inside the booth he drove
away. The witness further says in cross-examination that the polling did not start after the departure
of Ajit Singh in view of the commotion that took place there. After the departure of Col. Ram Singh
the S. D. O. and the D. C. also came and ultimately the polling was continued. The witness finally
says that he did not inform Col. Ram Singh about the incident nor did any body enquire from him
anything about the same. In these circumstances, we do not think that the evidence of this witness in
creditworthy.

66. The other witnesses examined by the respondent are not in respect of the Kalaka polling booth.

67. The picture would not be complete unless we give the other version of the story put forward by
the appellants who have also examined many witnesses.

68. PW 8 is the only witness who has identified his voice recorded in the tape recorder by the D. C.
when other witnesses, including the D. C., could not do so. That itself shows that the has leanings
towards the appellants.

69. Another important aspect which emerges from the evidence of PW 8 is that, according to him,
the total votes polled in the Kalaka polling booth were 573, the break-up of which is as follows :

                  #between 7.30 to 8.45 a.m. 58" 12 noon - 2.00 p.m. 205" 2.00 p.m. - 4.34 p.m. 109 --
                  --- 372 -----##

70. This means that if there was any disturbance it would have taken a very short time in view of the
calculation given by this witness. If, however, it is a fact that both parties-one led by Ajit Singh and
the other led by respondent - had a sort of a direct confrontation, it would have been extremely
difficult for the polling to start only after an interval of an hour and a half. Moreover, no explanation
has been given by this witness of the votes polled in between 8.45 to 10.30 a.m. The tally of votes is
not consistent with his evidence and is an intrinsic proof of the fact that his evidence is not true. The
general impression which we gather after perusing his evidence is that he does not appear to be a
witness of truth and, therefore, we find it difficult to rely on the evidence of this witness. Moreover,
we shall have to say something more regarding the credibility of this witness when we deal with the
documentary evidence.

71. PW 10 (Sri Krishan) was the S. D. O. and a Returning Officer for the Rewari constituency.
According to him, he remained in his office up to 10.00 a.m. and after that he started touring the
various polling booths. He goes on to say that on May 19, 1982 he reached Kalaka at about 11.00 -
11.30 a.m. on receipt of a complaint to the effect that Col. Ram Singh, along with his companions,
had tried to intimidate the polling staff and the voters. When he arrived at the spot he found the
polling at a standstill. This actually supports the case of the respondent that the polling went on
smoothly from 8.00 a.m. to 11.00 a.m. and the trouble must have been started either by Ajit Singh
or by his men. The poll could not have restarted before 1.00 or 1.30 p.m. because, according to the
evidence of the D. C., the polling staff had been interrogated and their statements were tape-
recorded which would have taken quite a lot of time. This fact intrinsically knocks the bottom out of
the case made out by PW 8 regarding timi
72. PW 14 (Puran) is the next witness who does not appear to be of any importance because it is
only a case of oath against oath. Moreover, a perusal of his evidence shows that this witness ran
away after Col. Ram Singh is alleged to have threatened him. He then returned and cast his vote at
about 3.00 p.m. Not much turns upon his evidence. Rather his evidence shows that he reached the
spot near about 3.00 p.m. when peace had been restored and the polling had restarted smoothly.

73. More or less, to the same effect is the evidence of PW 16 (Ishar Singh) with the difference that
this witness says that he was assaulted but then except informing the S. I. about the injury he took
no further steps. If he was actually injured he would have made it a point to report the fact of his
assault to the D. C. or the S. D. O. or other officers who had assembled after the miscreants had
gone away. This obviously he did not do. Lastly, he admits that this family was supporting the
Congress (I) candidate (Sumitra Bai) and, therefore, he could not be said to be an independent
witness.

74. PW 17 (Amar Singh) was admittedly a polling agent of Sumitra Bai. The witness says that when
the D. C. and S. D. O. came he made a complaint to them in writing which was also signed by Suraj
Bhan, Mangal Singh, Basti Ram and others. He further says that the had verbally complained to
Deep Chand, the ASI but he took no action. He states that the D. C. had however made an enquiry
from him but the D. C. does not say anything about this witness and being a most interested witness
it is difficult for us to rely on this witness when the High Court which had the opportunity of
watching the demeanour and behaviour of this witness placed no reliance on him.

75. The evidence of PW 18 is almost in the same terms. Like others, he also seems to have made a
written report to the police station which has not been produced and no action seems to have been
taken thereon. It is rather strange that a number of witnesses say that they had made an oral or
written complaint yet no action was taken thereon which shows that the statement of the witnesses is
a purely cooked up story.

76. This closes the evidence so far as the prosecution witnesses are concerned. The learned Judge of
the High Court has taken great pains in carefully marshaling and analysing the evidence and so far
as Kalaka polling booth is concerned, the findings of the High Court may be extracted thus :

                  The evidence of the PWs on this point is not corroborated. The ownership of the
                  motor cycles abandoned by the party of the respondent was not traced. The
                  ownership could be established from their registration books. No effort was made to
                  connect those with the respondent or his supporters. This shows that the PWs were
                  drawing upon their imagination to make out stories about the detention of the persons
                  and the forcible polling at that polling station by the respondent.

                  When the evidence on the file of the case is given a close look it leads to an inference
                  that the petitioners have failed to prove this part of the charge beyond reasonable
                  doubt.

                  # * * * *##

                  Shri Sri Krishan, SDO (Civil) stated that 3/4 persons gave him a complaint at Kalaka
                  about the incident. It was a signed complaint. That complaint is not traceable. It was
                  not found in the complaint file. Nor was it entered in the complaint register. That
                  complaint could throw light on the incident if at all it had been produced. The oral
                  evidence has failed to convincingly make out this allegation that the voters were
                  threatened at Kalaka.

                  # * * * *##

                  From the overall assessment of the petitioners' evidence and the detailed discussion
                  in the previous paragraphs concerning this polling station it has left an impression in
                  my mind that the role assigned to the respondent has not been proved beyond
                  reasonable doubt. Lot of suspicions which are indicated in the previous paragraphs
                  attach to his evidence and it is difficult to say that the inference in favour of the
                  petitioner's case is irresistible. The evidence of the petitioners is not of the type.
                  Which could persuade me to take a decision in their favour

77. After going through the evidence very carefully, we find ourselves in complete agreement with
the conclusions arrived at by the learned Judge of the High Court so far as Kalaka polling booth is
concerned.

                  Burthal Jat Polling Booth

78. This now brings us to the second and the last limb of the arguments advanced by counsel for the
appellants - the evidence regarding the corrupt practice in respect of Burthal Jat polling booth (of
short, referred to as 'Burthal booth'). To prove the allegations, the appellants produced PWs 6, 7, 10,
26 to 33 and in order to rebut the case the respondent examined RWs 11, 12, 13, 14, 20 and 22.

79. We would first take up the evidence led by the appellants. PW 6, Krishan Bihari, is merely a
formal witness who has been examined with the complaint register of No. 86-Rewari constituency
in which both Kalaka and Burthal polling booths fell. His evidence, therefore, does not appear to be
of any significance.

80. The next important witness is PW 7, the Deputy Commissioner of Mohindergarh District (N.
Balabhaskar), a major part of whose evidence has already been discussed by us while dealing with
his evidence relating to Kalaka polling booth. So far as Burthal both is concerned, he states that
attacked by villagers of Burthal Jat and his main purpose to visit the village was to verify the truth
or falsity of the complaint. But, when he went to the Burthal booth, the polling officer expressly told
him that nothing had happened inside the booth. Some of the polling officials who were there,
however, told him that there was some incidental outside the polling booth but the identity of the
persons responsible for the same had not been established. PW 7 further goes on to say that some
villagers at that place told him that the workers of Congress (J) had come there in a jeep and tried to
create trouble and they were able to detain two persons and the third one had run away. The D. C.
interrogated those two persons who

81. This is all that this witness says in respect of Burthal booth. Accepting the entire testimony as it
is without any further comment, it is not proved or established as to who was the person or persons
at whose instance the corrupt practice was committed. There was, however, a clear admission by the
D. C. that it was the respondent's party which had been aggrieved. It is rather surprising and
intriguing that although the D. C. had gone to hold a regular inquiry into the irregularity committed
at Burthal booth he did not care to interrogate Satbir Singh and Anil Kumar who were present there
particularly when, as he himself say, the Sarpanch of the village had complained to him regarding
some trouble. It seems that PW 7 contented himself merely by recording the statement of the
Presiding Officer in the tape recorder which was really a dictaphone, as told by the witness himself.

82. A very important admission has been made by the witness which completely nullifies the
statements recorded in the tape recorder. In this connection, he states thus :

                  I cannot now identify the person whose voices I had recorded in the tape. I also
                  cannot distinguish the name of person whose voice I had recorded after hearing the
                  tape.

83. The witness was cross-examined regarding the cassette recorder and he has made the following
admissions :

                  (a) that there were no instructions from the Government for recording such
                  conversations as he had done,

                  (b) that even if he was supplied a dictaphone, it had to be mainly used by him for
                  recording his own observations in his own voice,

                  (c) that the cassette and the dictaphone remained all the time with him and were not
                  deposited by him in the record room,

                  (d) even a copy of the transcript of the recorded statements prepared by his
                  stenographer was not deposited in the official record room, and

                  (e) that there were some gaps in the recorded tape (Ex. P-1) which had been left out
                  and at some places the voice was not clear and audible.

84. PW 7 in his statement says that the statements of the witnesses recorded by him were transcribed
by his stenographer under his supervision in his office but he may have temporarily gone out to
attend to some other work. This is rather important because if the statements were typed out in his
absence it would have been very difficult for his stenographer to find out whose statement he was
transcribing which throws a considerable doubt on the credibility of the recorded statement. To a
direct question by the Court - "can you rule out the possibility of tampering with the transcript" - his
answer was - "I do not think if it was possible". The answer is self-evident and frightfully vague so
as not to exclude the possibility of tampering. Ordinarily, the admissions made by PW 7 would have
been sufficient to discard the statements recorded in the tape recorder. We shall, however, develop
this aspect of the matter when we deal with the statements recorded on the tape recorder.

85. The next witness is Shri Krishan, S. D. O., PW 10. We have already discussed a major part of
his evidence while dealing with the Kalaka polling booth and pointed out the serious infirmities
from which his evidence suffers. Same comments would naturally apply to his evidence relating to
Burthal booth to show that his evidence is not creditworthy. However, we shall briefly summarise
what he had said about Burthal booth. In the first place, he states that when he reached Burthal,
along with D. C., he saw Satbir and Anil Kumar surrounded by the people of that village. He also
saw a jeep containing some sticks parked there, which was, on the instructions of the D. C., taken
into custody by the police. Satbir and Anil Kumar were also taken into custody under the orders of
the D. C. In support of his evidence he relies on Ex. P-9, the complaint which was handed over to
him by one Mam Chand. The manner in which the complaint was handed over to PW 10 and as to
the author of the complaint are rather dubious partic
86. PW 26, Shri Mahabir Singh, is another witness who has been examined to prove the active
participation of Anil Kumar and Satbir Singh. Far from supporting the case of the appellants he
supports the case of the respondent. He states that he was a voter and had cast his vote. The learned
counsel for the appellants, however, did not choose to rely on this witness and made a prayer for
cross-examining him. In cross-examination all that PW 26 said was that he was on duty as an
election agent of the respondent inside the booth and that he knew Satbir Singh previously but did
not know to which place he belonged. Thus, the evidence of this witness is of no assistance to the
appellants.

87. PW 27 (Dharam Vir) was a voter and, according to his evidence, he had gone to cast his vote at
about 8.00 a.m. when near about that time Col. Ram Singh accompanied by 50-60 persons came
there and summoned Mahabir and Udai Bhan who were his election agents and told them that he
was leaving some persons behind and that they should see to it that no one should be permitted to
vote for the Congress (I) candidate. The witness further states that Satbir Singh was amongst the 15-
20 persons left behind by Col. Ram Singh. In Cross-examination he admits that he cannot identify
Satbir Singh. It is, therefore, difficult to believe as to how he named Satbir Singh as one of the
persons left behind by Col. Ram Singh. His evidence on this point appears to be clearly false. The
sequence of events mentioned by other witnesses shows that Col. Ram Singh had reached there near
about 9.30 a.m. and he had come alone which fact has been supported by an overwhelming majority
of witnesses for the respondent. Therefore, we find it

88. The next witness is Thaver Singh, PW 28 who also speaks in the same terms as PW 27. We are
unable to place any reliance on this witness because he was the most interested witness being a
polling agent of the Congress (I) candidate. During cross-examination he stated that he had verbally
complained to the Presiding Officer about the conduct of Col. Ram Singh but he did not make any
complaint to any officer in writing. His evidence, therefore, carries no weight unless corroborated
by some unimpeachable documentary evidence.

89. PW 29, Amir Chand, also repeats the same story as PW 28 but there is no evidence to
corroborate him. Reading in between the lines of his evidence it appears that he was a strong
supporter of Rao Birendra Singh though he does not commit himself in so many words.

90. PW 30 (Surjit Singh) and PW 31 (Raghubir Singh) have repeated the same parrot-like story as
the preceding witnesses. In the absence of any documentary evidence to corroborate their testimony,
we find it unsafe to rely on their evidence.

91. PW 32, Shamsher Singh, is rather an important witness and according to his evidence he went to
the Burthal booth at about 7.30 a.m. and returned to his house at about 8.30 a.m. He then again went
to the polling booth at about 2.30 p.m. He admits that he was a polling agent of Smt. Sumitra Bai,
the Congress (I) candidate, and states that while he was on his way to the booth in the afternoon he
met Satbir Singh and Anil Kumar who asked him to support Col. Ram Singh and when he told them
that it was one's own choice to support any candidate, an altercation took place which was, however,
stopped with the arrival of Mam Chand, Ram Singh, Kishori and some other people. Thereafter, an
ASI of police came there in a jeep who intervened in the matter and in his presence also Satbir
Singh started uttering abuses. He further says that he found a jeep parked there and people told him
that it belonged to Col. Ram Singh, a statement which is clearly inadmissible. He finally says that
when the D. C. and the S. D. O. cam

92. Kishori Lal, PW 33, says that he was a chowkidar of the village Burthal Jat. He says that when
he had gone to the polling booth at about 2.30/3.00 p.m. to cast his vote he found Satbir Singh and
Anil Kumar having an altercation with Shamsher Singh, PW 32. He rescued Shamsher Singh with
the help the of some other persons. The witness, being a chowkidar of the village, should have
immediately reported the matter to the D. C. or the S. D. O. or the ASI, all of whom had come to
the spot but he did not do so and kept quiet which speaks volumes against the credibility of his
evidence.

93. More or less to the same effect is the evidence of PW 34 (Ram Narain) who is also a Lambardar
of village Kakoria. He says that on the day of the polling at about 2.30/3.00 p.m. he had gone to the
village Burthal Jat where he saw an altercation going on between Satbir Singh, Anil Kumar on the
one hand and Shamsher Singh on the other. An ASI had also arrived there followed by the D. C. and
the S. D. O. He admits that he had never met Anil Kumar and Satbir Singh nor did he know them
before. Although he was an eye-witness to the incident of altercation yet he does not say that he had
told anything to the various officers who were present at the spot. His evidence, therefore, does not
inspire much confidence.

94. The learned Judge of the High Court who had fully considered the evidence of these witnesses
observed thus :

                  The time of their arrest as noticed makes the evidence of the petitioners' witnesses in
                  regard to the incident at Burthal Jat very doubtful.

                  The analysis of the evidence led by the petitioners reveals that they have failed to
                  prove this part of the charge of corrupt practice against the respondent.

95. A bare perusal of the evidence of the witnesses for the appellants clearly reveals that they are
not telling the truth and hence no implicit faith can be reposed on their testimony.

96. This now brings us to the evidence led on behalf of the respondent. To begin with, RW 11, Ravi
Datt Sharma, who was a lecturer in Govt. Higher Secondary School, Rewari, was a polling officer at
Burthal booth. According to him, the polling went on smoothly from 7.30 a.m. to 4.30 p.m. without
any untoward incident. He categorically states that he knew Col. Ram Singh and he (respondent) did
not visit the polling booth on the polling day. He further goes on to state that at about 1.00 p.m., the
D. C. and S. D. M. visited the polling booth. On their enquiry, the witness told them that everything
was going on smoothly. He clearly denies that the D. C. had recorded any conversation which he
had with him in the tape recorder. His evidence, however, is confined only to the incident that had
happened inside the booth and not outside. We do not see any infirmity in his statement as he
appears to be an independent and truthful witness.

97. RW 12, Parbhati, was a voter of Burthal booth and he testifies to the fact that he had cast his
vote at 8.00 a.m. though he had reached the booth at 7.30 a.m. After casting his vote he came out
and stayed with his co-villagers and remained there till 1.30 or 2.00 p.m. He further states that
during this period Col. Ram Singh or anybody on his behalf did not come to the booth nor did any
quarrel or dispute take place inside or near about the polling booth. He further states that Shamsher
Singh (PW 32), Sarpanch of the village was standing at a small distance with some people and he
(RW 12) heard some altercation between them. During the course of the said altercation the police
arrived at the spot and removed two persons (meaning perhaps Anil Kumar and Satbir Singh) whom
he did not know. Thereafter, Shamsher Singh and other villagers returned to the polling booth. In
cross-examination the only fact which he admits is that Mahabir and Udai Bhan were the polling
agents of Col. Ram Singh and Shamsher Singh an

98. RW 13, Ami Lal, was also a voter of Burthal booth and he says that so long as he was there he
did not see Col. Ram Singh nor did any dispute take place either within the polling station or
outside. He admits that he saw Shamsher Singh, who was the polling agent of Congress (I)
candidate, altercating with two unknown persons at a distance of about 100-120 karms. He
categorically states in cross-examination that he did not see any candidate at the booth on that day.
He also testifies that he knew Col. Ram Singh since the last election. He further denies the
suggestion that Anil and Satbir were threatening the voters. Nothing further of any importance
seems to have been elicited from this witness.

99. RW 14, Sheo Chand, who was also a voter, fully supports the evidence of RW 13 and says that
he knew Col. Ram Singh whom he did not see passing through the approach road to Burthal Jat. A
number of suggestions were made to him which were denied by him and which are hardly of any
importance.

100. RW 20, T. C. Singla, is more or less a formal witness who produced certain letters (dated April
25, 1982 and April 30, 1982) written by Col. Ram Singh to the Chief Election Commissioner of
India containing certain complaints made by Col. Ram Singh about the irregularities in the election
which are not relevant for our purpose.

101. RW 22, Col. Ram Singh, is the respondent himself. We shall deal with his evidence relating to
both Kalaka and Burthal booths. To begin with, he clearly states that the D. C. (PW 7) was not
impartial and was working against his interests. Perhaps we may not go to the extent of accepting
the apprehensions of the respondent but there is no doubt that the conduct of the D. C., as revealed
in this case, leaves much to be desired. According to the evidence of RW 22, at about 8.45 or 9.00
a.m. two of his persons from Kalaka polling booth came to him in a dishevelled condition : their
clothes were torn and they appeared to have been badly beaten up. They informed him (RW 22) that
Ajit Singh s/o Rao Birendra Singh, accompanied by 50-60 persons had entered the polling booth
and beaten them up and that they were indulging in forcible polling. The two persons who came to
him in an injured condition were Ram Kishan and Tula Ram (both brothers) and Tula Ram was his
polling agent. On receiving this information, the wi

102. The rest of his evidence is regarding a number of other factors which are not relevant for the
purpose of this case. Reliance was, however, placed by the appellants that Satbir Singh, who was a
leading figure at Burthal, was an adopted son of Jagmal Singh, who was father-in-law of Col. Ram
Singh. The witness further clarifies that he had divorced his wife as far back as 1962. Thus, when
the witness says that he had no relations with Satbir Singh, we dare say he is right. A number of
questions regarding his domestic matters were put in cross-examination but they are not very
relevant.

103. As, however, this witness, who appeared before us, was examined by us at our instance and
was subjected to cross-examination by both the parties, we shall discuss that part of his evidence a
little later when we come to the statement of this witness recorded by PW 7 in his tape recorder at
Kalaka polling booth.

104. Thus, leaving the tape-recorded statement for the time being, we adhere to our view expressed
in the earlier part of this judgment that the evidence adduced by the respondent seems to be much
superior in quality than that adduced by the appellants. The learned Judge of the High Court was
also of the same view and had rightly held that the allegations of corrupt practice or of capturing of
booth had not been established by the appellants beyond reasonable doubt or, to be very accurate, by
the standard of proof required to set aside the election of a successful candidate.

105. We might now rush through the relevant documentary evidence produced in this case which
has been fully dealt with by the learned trial Judge and we agree with his conclusions. To begin
with, Ex. P-5 is the diary of the Presiding Officer of the Kalaka booth. We have already discussed
the effect of this document and found that while in column No. 21 relating to interruption or
obstruction of poll, he (PW 8) mentioned Col. Ram Singh putting pressure on polling party and
getting bogus votes polled in his favour yet in column No. 20(e), relating to intimidation, etc., he
made no mention of any such incident and crossed the same, meaning thereby that there was no
intimidation of voters. The document, Ex. P-5, is therefore, self-contradictory and does not inspire
any confidence. The explanation given by PW 8 in his evidence is that while he was filling up
column No. 29(e) he did not mention anything as he was greatly perturbed at that time. This is a
most implausible and fantastic explanation which apart from

106. Ex. P-6 is a certified copy of the FIR (No. 103) lodged by the Presiding Officer implicating
Col. Ram Singh and making some allegations. This document also appears to us to be a spurious
one as discussed by the High Court.

107. So far as the documents produced on behalf of the respondent are concerned, they are Ex. R-1
to R-9 consisting of letters written by Col. Ram Singh to various authorities including the Chief
Election Commissioner of India complaining about the misuse of powers by the polling officials in
the conduct of election.

108. This is all the documentary evidence that matters and, in our opinion, nothing turns upon these
documents.

109. This now brings us to the last and inevitable step of the drama starting with PW 1 and ending
with RW 22. In order to understand the admissibility, credibility and the truth of the statements
contained in the cassette, we might give a brief summary of the manifest defects and incurable
infirmities from which the statements recorded on tape recorder suffer. Our conclusion on this
question is arrived at not only after going through the tape-recorded statements but also hearing the
cassette ourselves in this Court on big amplified speakers. The defects/infirmities may be pointed
out thus :

                  (1) The voices recorded at a number of places are not very clear and there is
                  tremendous noise while the statements were being recorded by D. C. (PW 7)

                  (2) A good part of the statements recorded on the cassette has been denied not only
                  by the respondent but also by RWs 1 and 3. No other witness has come forward to
                  depose to the identification of the voice of the respondent or those of RWs 1 and 3.

                  (3) There are erasures here and there in the tape and besides the voice recorded being
                  not very clear, it is extremely hazardous to base our decision on such an evidence.

                  (4) One of the important infirmities from which the tape-recorded statements suffer is
                  the question of custody. PW 7, the D. C. has clearly admitted in his evidence that
                  though he was supplied with a tape recorder or a dictaphone but he was not asked by
                  the Government to record the statements on the tape recorder which was really meant
                  for recording his own impressions and not those of the witnesses. However, even
                  though PW 7 violated the instructions of the Government he gravely erred in not
                  placing the recorded cassette in proper custody, that is to say, in the official record
                  room after duly sealing the same, and instead keeping the same with himself without
                  any authority.

                  Thus, the possibility of tampering with the tape-recorded statements cannot be ruled
                  out and this is almost a fatal defect which renders the tape-recorded statements
                  wholly inadmissible.

                  (5) PW 7 himself admits that the transcript of the tape-recorded statements was
                  prepared in his office under his supervision by his stenographer. He further admits
                  that when the transcript was being prepared he was temporarily absent from his
                  office to attend to certain other works. This appears to us to be a very serious matter
                  because he had no legal authority to leave the recorded cassette with his
                  stenographer, who was transcribing the same, even for a single moment as the
                  possibility of its being tampered with by his stenographer or by anybody else cannot
                  be safely ruled out. He further admits that even a copy of the transcript was not
                  deposited in the official record room.

                  (6) One important aspect as part of the manifest defects may now be mentioned. RWs
                  1 and 3 have denied the identity of their voices in the cassette and, therefore, that part
                  of the evidence becomes clearly inadmissible. The respondent, Col. Ram Singh,
                  however, appears to us to be a truthful, upright and straightforward person because
                  while he chose to admit some parts of the tape-recorded statement to be in his voice
                  and as being correct but denied the rest : he could have, if he wanted, denied the
                  whole of it. It seems to us that as the respondent was a trained and disciplined soldier
                  he told the truth as far as appeared to him. In fact, if he had failed to identify his
                  voice, then nothing could have been done and his statement would have been per se
                  inadmissible.

                  (7) As it is, the statements on the tape recorder seem to have been recorded in a most
                  haphazard and unsystematic manner without following any logical or scientific
                  method. This will be clear from the fact that the tape-recorded statements do not
                  indicate the polling booth where it was recorded, the name of the person whose
                  statement was recorded, the time of recording, etc.

110. A proper methodology which the D. C. should have followed was to first indicate the place,
time and name of the person by himself speaking and then record the statement. No such scheme
was followed and the Court is left to chance and conjecture to find out as to when and where and
whose statement was recorded. As it is, we can only say that the statement of the respondent was
recorded only at Kalaka and this fact seems to be admitted by the appellants in their written
submissions (Vol. III, p. 59) thus :

                  It is not the petitioners' case that Col. Ram Singh came to the polling station or
                  polling booth. The petitioners' witnesses (PW 27, PW 28 and PW 29) have only
                  stated that Col. Ram Singh came to Burthal Jat at 8.00 a.m., instructed his supporters
                  not to allow any voters to vote for Congress (I) candidate and thereafter left the
                  place.
111. It is, therefore, clear that if at all Col. Ram Singh visited Burthal booth, he did it only at 8.00
a.m. when the D. C. had not even reached there and, therefore, the question of recording his
statement at Burthal Jat does not arise.

112. In our opinion, the best course of action for the D. C. should have been to record the statements
of the respondent and other persons himself in writing instead of recording the same on a tape
recorder which has led to so many complications. And, if he wanted to use a tape recorder he should
have taken the necessary precautions to see that too many voices, interruptions, disturbances are
completely excluded. He ought not to have allowed any person to speak while he was recording the
statements. Unfortunately, this confusion has resulted from his conduct in flouting the instructions
of the Government by not using the dictaphone only for recording his own impressions but instead
recording the statements of the persons concerned.

113. Thus, in short, the manner and method of recording the statements in the tape recorder by the
D. C. has resulted in a total mess making confusion worse confounded. PW 7 has not given the
details to complete the picture as to what the respondent had done. Therefore, the evidence of the D.
C. on this point is conspicuous by the absence of any such description or comments. Indeed, the D.
C. has just acted as a silent machine to whatever was recorded instead of applying his mind as to at
what stage the respondent denied his voice and where he admitted the same. We should have at least
expected the D. C. to give better details in a case like the present one which, as already mentioned,
entails serious consequences for the respondent if his election were to be set aside.

114. Having regard to the reason mentioned above, we are absolutely satisfied that the tape-recorded
statements of the witnesses are wholly inadmissible in evidence and, at any rate, they do not have
any probative value so as to inspire any confidence. Hence, it is extremely unsafe to rely on such
tape-recorded statements apart from the legal infirmities pointed out above.

115. That should have closed the whole chapter as far as the tape-recorded statement of the
respondent is concerned. We shall, however, mention below a few glaring defects, omissions and
imperfections :

                  (1) Some statements said to have been recorded by PW 7 have been flatly denied by
                  RWs 1 and 3, one of whom was a polling officer and the other a constable.

                  (2) A good part of the tape-recorded statement has been vehemently and persistently
                  denied by him (respondent) - rightly or wrongly.

                  (3) It is true that the searching and grueling cross-examination of the respondent in
                  this Court by Mr. Sibal, counsel for the appellants, seems to have forced the
                  respondent to admit certain innocuous facts though he might just as well have
                  admitted those facts which caused no harm to him.

116. We might mention here that our object in examining the respondent as a court witness in this
Court and subjecting him to cross-examination by both the parties was not to fish out technicalities
by putting all sorts of queries and questions, relevant or irrelevant. In such a complex state of
affairs, the statement of the respondent, torn from the context, cannot form the basis of a judicial
decision. Take for instance, one statement of the respondent which was repeated to him by Mr. Sibal
several times in different forms. The occasion was - if the respondent had sent Ram Kishan and Tula
Ram or other persons to the police station or he himself had gone there along with them. The
respondent admitted that these persons along with others had come to his house and complained that
they had been beaten up and harassed by the members of the Congress (I) candidate and also
showed injuries on their persons. He repeatedly said that he himself did not go to the police station
but sent them there. Perhaps in view of

117. Another important feature of his evidence is that he tacitly admits various places that while his
statement was being recorded, a number of gaps were there, a number of other people were
speaking together, leading to great confusion which must have made him lost his wits. On hearing
the entire conversation ourselves, we are of the opinion that the statement of the respondent is not
coherent particularly because of gaps, noises, sounds, and that the statement was recorded in an
atmosphere surcharged with emotions.

118. In this view of the matter, we do not consider it necessary to delve deeper into the various
statements made by the respondent. It is sufficient to indicate that on the appellants' own case he had
not gone to Burthal booth after 8.00 a.m. and, therefore, the D. C. who reached there at 12 noon
could not have recorded his statement. We are, therefore, not in a position to hold that implicit
reliance should be placed on the evidence led by the appellants. Even if the respondent made some
admissions in his unguarded moments that would not strengthen the case of the appellants in view
of the standard of proof required in an election matter where the allegations of corrupt practice have
to be proved beyond reasonable doubt almost just like a criminal case.

119. It was strongly urged by Mr. Sibal that in view of our recent decision in Ram Sharan Yadav
case the impact of the evidence on the court would show that the respondent was lying and that was
sufficient to prove the appellants' case. We are unable to agree with the broad interpretation put by
the learned counsel on our decision.

120. In fact, if we apply the principles laid down in Ram Sharan Yadav case, the appellants' case
must fail at the threshold.

121. Lastly, we might consider the argument advanced before us by the learned counsel for the
respondent who submitted that even if the case of capturing of booths as alleged by the appellants
against the respondent is made out that would at best be an electoral offence and not a corrupt
practice within the meaning of the provisions of the Representation of the People Act, 1951. We are,
however, not called upon to go into this question as no clear case of capturing of booths has been
made out. The learned Judge of the High Court has dealt with the case of capturing of booths very
extensively and has written a very well reasoned judgment annotated with convincing reasons and
conclusions. It would indeed be extremely difficult to displace the judgment of the High Court on
the ground sought by the appellants. The High Court has considered even the minutest details so as
not to invite any comment that the Judge has not applied his mind. Even as regards the tape-
recorded statements the learned Judge has pointed o

122. On a careful consideration, therefore, of the evidence, circumstances, documents and
probabilities of the case, we are fully satisfied that the appellants have failed to prove their case that
the respondent was guilty of indulging in corrupt practices. We therefore, affirm the judgment of the
High Court and dismiss the appeal but in the circumstances without any order to costs.

VARADARAJAN, J. - (dissenting) 

This appeal under Section 116-A of the Representation the of People Act, 1951, hereinafter referred
to as 'the Act', is directed against the dismissal of Election Petition 13 of 1982 on the file of the
Punjab & Haryana High Court.

124. The appellants are registered electors of Rewari constituency No. 86 of the Haryana Legislative
Assembly. In the election held for that constituency on May 19, 1982 Col. Ram Singh, hereinafter
referred to as 'the respondent' who contested as the Congress (J) candidate was declared elected on
May 21, 1982 after the counting was over on May 20, 1982, defeating his nearest rival, Sumitra
Devi who is said to be the sister of Rao Birendra Singh and had contested in that constituency as the
Congress (I) candidate. Sumitra Devi lost by a margin of 8760 votes. The appellants sought in the
election petition a declaration that the respondent's election is void under Section 100 of the Act.
They alleged that there was direct and indirect interference and attempt to interfere on the part of
the respondent and his agents and other persons with his consent with the free exercise of the
electoral right of the electors. The respondent stoutly opposed the election petition. After
considering the evidence and hearing the

125. Mr. Kapil Sibal, learned counsel for the appellants confined his arguments in this Court to the
instances of corrupt practice alleged in respect of only two polling stations-Kalaka and Burthal Jat.
It is, therefore, necessary to confine our attention to the case of the parties in regard to only those
instances.

126. The appellants' case in regard to the Kalaka polling station is this : The polling in Kalaka
polling station started and continued smoothly until 10.30 a.m. on May 19, 1982. But at about 10.30
a.m. the respondent came there along with 60 or 70 persons including Desh Raj, Ram Krishan and
Krishan Lal of Kalaka and Sheo Lal Gujar, Rishi Dakot. Umrao Singh, Raghubir Singh, Balbir
Singh Gujar, Abhey Singh Gujar and Suresh of Rewari. The respondent was carrying a gun while
some of those who accompanied him were armed with guns, lathis and swords. The respondent and
his companions threatened with arms and terrorised the electors who were waiting outside the
poling station to exercise their right to vote as a result of which Sheo Chand, Gurdial, Puran,
Mangal, Basti Ram, Ishwar and Amar Singh ran away without exercising their right to vote. The
respondent and some other armed persons amongst his companions entered the polling station and
brandished their guns towards the Presiding Officer and other members of t

127. As regards the incident at Burthal Jat polling station the appellants' case is this : As per his pre-
planned strategy the respondent visited Burthal Jat village at about 8 a.m. on May 19, 1982,
accompanied by 50 or 60 persons including Anil Kumar, Satbir Singh, Raghubir, Sheo Lal Gujar,
Rishi Dakot, Umrao Singh, and Balbir Singh Gujar. Many persons including Mahabir Singh, Hira
Singh, Mam Chand, Dharam Vir, Thaver Singh and Amar Chand gathered there. The respondent
told his supporters to ensure that electors who were likely to vote for the Congress (I) candidate are
not allowed to go into the polling station and that he was leaving behind Anil Kumar and Satbir
Singh with 10 or 15 musclemen to help them in preventing electors of the Congress (I) candidate. A
jeep containing lathis and other weapons was left at the disposal of those persons. While leaving the
place the respondent told Anil Kumar and Satbir Singh who were on their motor cycle that he was
depending upon them and they should ensure that no v

128. The defence of the respondent as regards the incident in and at the Kalaka polling station is one
of complete denial and he contended that if there is any report lodged by Suraj Bhan, Amar Singh,
Ishwar Singh and Basti Ram it must be a manoeuvred affair to create evidence in the election
petition and that the report of the Presiding Officer is not his own version but a false document
prepared at the instance of the respondent's political opponent Rao Birendra Singh and other State
agencies on whom he exercised powerful influence. The FIR No. 103 of 1982 dated May 19, 1982
does not support the appellants' case of any interference or attempt to interfere with the free exercise
of the electoral right of any elector on the part of the respondent or anyone else with his consent and
does not directly disclose the commission of any corrupt practice of undue influence. On the other
hand, the truth is that the men of Rao Birendra Singh captured the booth at Kalaka and the
supporters and voters of the respondent

129. The allegation that the respondent and some of his companions entered the polling station and
brandished their guns at the Presiding Officer and ordered the other polling staff and polling agents
of the various candidates to stand still does not attract any provision of the Act regarding the
commission of corrupt practice. The allegation that the polling agents Suraj Bhan and Amar Singh
were threatened and turned out of the polling station does not constitute corrupt practice as they are
not alleged in the election petition to be electors. Mangal Singh, Balbir Singh and Ishwar who are
alleged to have been assaulted and injured are not alleged in the election petition to be electors of
the constituency and therefore that allegation does not constitute corrupt practice. The allegation
that 50 ballot papers were snatched form the polling staff and polled in favour of the respondent
does not constitute corrupt practice.

130. The respondent's defence regarding the incident at Burthal Jat is one of complete denial of the
allegations in the election petition in regard to that incident but there is no denial of the allegation
that Anil Kumar and Satbir Singh are related to him. He has contended that it is wholly incorrect to
allege that any jeep with which he had any connection was carrying lathis and other weapons and
that it was taken into custody by the officials. The allegation that Anil Kumar and Satbir Singh
committed any corrupt practice with or without the consent of the respondent is false, malicious and
mischievous. Those two persons were falsely implicated in the case under Section 107 and 151 of
the Code of Criminal Procedure and a clumsy attempt was made to implicate them by the
subordinate police official who were under the powerful influence of Rao Birendra Singh whose
sister Sumitra Devi was losing and has ultimately been defeated by the respondent. Two
independent alleged corrupt practices, one by the responden

131. It is necessary to note all the issues framed by the Tribunal. They are :

                  (1) Whether the allegations of corrupt practice alleged in the election petition have
                  not been supported by an affidavit ? If so, what is its effect?

                  (2) Whether petitioners 2 to 5 have not deposited the security under Section 117 of
                  the Representation of the People Act, 1951 ? If so, what is its effect ?

                  (3) Whether petitioners 2 to 5 have not complied with Section 81(3) of the
                  Representation of the People Act by not attesting the copy of the election petition to
                  be true copy under their own signatures ? If so, what is its effect ?

                  (4) Whether petitioners 2 to 5 have not verified the election petition ? If so, what is
                  its effect ?

                  (5) Whether allegations of corrupt practice alleged in the petition lack material
                  facts/legal ingredients and do not disclose complete cause of action ? If so, what is its
                  effect ?

                  (6) Whether the allegations of corrupt practice alleged in the election petition are
                  vague and lack full particulars ? If so, what is its effect ?

                  (7) Whether the averments in paragraph 7 of the petition are unnecessary, scandalous,
                  frivolous or vexatious and calculated to prejudice a fair trial ? If so, whether the same
                  are liable to be struck out under Rule 6, Order 16 Civil Procedure Code ?

                  (8) Whether the respondent himself and/or through his agents and other persons, with
                  his consent, committed corrupt practice of undue influence, as alleged in paras 9 to
                  13 of the election petition or not ? If so what is its effect ?

132. The learned Judge of the High Court took up for trial issues 1 to 7 as preliminary issues. By
order dated December 10, 1982 he found issues 2 to 6 in favour of the appellants and issue 1 against
them but permitted them to carry out certain amendments and remove the defects pointed in his
order. He declined to consider issue 7 as a preliminary issue on the ground that evidence is
necessary to record any finding on that issue. On the question whether the allegations in paras 9 to
12 of the election petition constitute corrupt practice he held that prima facie they do not disclose
any defect in form or substance but they contain material facts and allegations of corrupt practice. It
may be noticed that the allegations relating to the incidents at Kalaka and Burthal Jat polling
stations are contained in paragraphs 9 to 11 of the election petition.

133. On the issue regarding the corrupt practice alleged in relation to Kalaka polling station the
learned Judge held that the Presiding Officer's diary Ex. P-5 appears to have been prepared by the
Presiding Officer, Hari Singh (PW 8) later under the pressure and influence of the defeated
candidate, Sumitra Devi through her brother Rao Birendra Singh and that FIR No. 013 of 1982
dated May 19, 1982 contained in Ex. P-6 is inadmissible in evidence to corroborate the evidence of
PW 8 about the incident in Kalaka polling station on the ground that the original report of PW 8 to
the police had not been summoned by the appellants. He found that the tape record Ex. PW 7/1
prepared by the Deputy Commissioner of Mohindergarh District, (PW 7) has been tampered with
later, disbelieving the evidence of PW 7 that a portion of what he had recorded at the Burthal Jat
polling station was erased by his own voice inadvertently on the same day. He also found that the
authenticity of the transcription of the tape record in Ex.

134. Regarding the incident at the Burthal Jat polling station the learned Judge found that the
appellants have failed to prove that Anil Kumar and Satbir Singh are related to the respondent. For
coming to this conclusion he relied upon Ex. P-9 which purports to be a report of Mam Chand (PW
35) who has, however, disowned it while holding that Anil Kumar and Satbir Singh were
canvassing for their candidate at Burthal Jat as stated by Mahabir Singh (PW 26) but it is not made
out who their candidate was. He found that the appellants have failed to prove this item of corrupt
practice. On the findings recorded by him in regard to these and the other items of corrupt practice
alleged by the appellants he dismissed the election petition with costs as stated above.

135. The points arising for consideration in this appeal are :

                  (1) Whether the incident in and at the Kalaka polling station alleged by the appellants
                  is true and has been proved beyond reasonable doubt?

                  (2) Whether the incident alleged in and at the Kalaka polling station does not
                  constitute corrupt practice within the meaning of the Act ? and

                  (3) Whether the incident at Burthal Jat polling station alleged by the appellants is true
                  and has been proved beyond reasonable doubt?

136. Before considering the evidence on record in regard to the incidents at Kalaka and Burthal Jat
polling stations it is desirable to not certain provisions in the Act and certain decisions to which the
Court's attention was drawn by Mr. Kapil Sibal, learned counsel appearing for the appellants and
Mr. P. P. Rao, learned counsel appearing for the respondent.

137. Section 87 of the Act relates to the procedure before the High Court and clause (1) thereof
reads thus :

                  Subject to the provisions of this Act and of any rules made thereunder, every election
                  petition shall be tried by the High Court, as nearly as may be, in accordance with the
                  procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial
                  of suits.

                  Order 8 Rules 1 to 3 and 5 of the Code of Civil Procedure relating to written
                  statement read thus :

                  1. (1) The defendant shall, at or before the first hearing or within such time as the
                  court may permit, present a written statement of his defence.

                  2. The defendant must raise by his pleading all matters which show the suit not to be
                  maintainable, or that the transaction is either void and voidable in point of law, and
                  all such grounds of defence as, if not raised, would be likely to take the opposite
                  party by surprise, or would raise issues of fact not arising out of the plaint, as, for
                  instance, fraud, limitation, release, payment, performance, or facts showing illegality.

                  3. It shall not be sufficient for a defendant in his written statement to deny generally
                  the grounds alleged by the plaintiff, but the defendant must deal specifically with
                  each allegation of fact of which he does not admit the truth, except damages.

                  5. (1) Every allegation of fact in the plaint, if not denied specifically or by necessary
                  implication, or stated to be not admitted in the pleading of the defendant, shall be
                  taken to be admitted except as against a person under disability :

                  Provided that the court may in its discretion require any fact so admitted to be proved
                  otherwise than by such admission.

138. Section 116-A of the Act relating to appeal against certain orders of the High Court lays down
inter alia that no appeal shall lie to the Supreme Court against the dismissal of an election petition
under Section 98 of the Act. In the present case the election has been dismissed by the High Court
under that section.

139. Section 116-C of the Act relates to procedure in the appeal. Sub-section (1) of that section
reads thus :

                  116-C. (1) Subject to the provisions of this Act and of the rules, if any, made
                  thereunder, every appeal shall be heard and determined by the Supreme Court as
                  nearly as may be in accordance with the procedure applicable to the hearing and
                  determination of an appeal from any final order passed by a High Court in the
                  exercise of its original civil jurisdiction; and all the provisions of the Code of Civil
                  Procedure, 1908 (of 1908) and the Rules of the Court (including Provisions as to the
                  furnishing of security and the execution of any order of the Court) shall, so far as
                  may be, apply in relation to such appeal.

                  Section 100 of the Act mentions the grounds for declaring an election to be void.
                  Section 100(1) (b) reads thus :

                  Subject to the provisions of sub-section (2) if the High Court is of opinion -

                  (b) that any corrupt practice has been committed by a returned candidate or his
                  election agent or by any other person with the consent of a returned candidate or his
                  election agent -

                  the High Court shall declare the election of the returned candidate to be void.

140. Section 123 of the Act lays down that what are corrupt practices and sub-section (2) thereof
reads thus :

                  123 (2) Undue influence, that is to say, any direct or indirect interference or attempt
                  to interfere on the part of the candidate or his agent, or of any other person with the
                  consent of the candidate or his election agent, with the free exercise of any electoral
                  right.

141. Instruction 74 of the Instructions to Presiding Officers issued by the Election Commission of
India reads thus :

                  74. Preparation of the diary - You should draw up the proceedings connected with the
                  taking of the poll in the polling station in the diary to be maintained for the purpose.
                  You should go on recording the relevant events as and when they occur an should not
                  postpone the completion and filling of all entries in the diary till the completion of
                  the poll. You should mention therein all important events particularly. . .

                  in the form given which is the same as the one in which Ex. P-5 in this case has been
                  recorded.

142. Mr. Kapil Sibal, learned counsel for the appellants, relied upon certain decisions of the English
courts and of this Courts in regard to the admissibility of tape-recorded evidence. I shall refer to
them.

143. In R. V. Maqsud Ali the following observation has been made :

                  The position on the evidence was that a very important part of that evidence was
                  made up by a tape recording taken in circumstances that I must now indicate. . . . On
                  April 29, 1964, the two appellants were at the Town Hall at Bradford and they were
                  taken there into a room. . . . There is no reason to suppose that both of the appellants
                  were not there on this occasion voluntarily;. . . In that room there had been set up a
                  microphone behind a waste paper basket which was connected to a recorder in
                  another room. . . it is almost unnecessary to say that none but the police knew of the
                  presence of the microphone in position.. . so it ran for just one minute over the hour. .
                  . . The tape, after it had been recorded, remained in the custody of the police and
                  there is no suggestion that it was in any way interfered with. The conversation that
                  took place between the two appellants was of course in their native tongue. . . and the
                  tape, it should now be stated, had a number of imperfections. . . . If the jury could c

144. In R. V. Robson which arose out of a case where the accused was charged with corruption the
prosecution sought to put in evidence certain tape recordings. The defence contended that they were
inadmissible in evidence as inter alia they were in many places unintelligible. It was however not
contended that the tape recordings were inadmissible evidence of what are recorded in them. The
originality and authenticity of the tape were left to the jury in that case.

145. In Yusufalli Esmail Nagree v. State of Maharashtra this Court has observed :

                  Like a photograph of a relevant incident a contemporaneous dialogue of a relevant
                  conversation is a relevant fact and is admissible under Section 7 of the Indian
                  Evidence Act.

146. Reference has been made in that case to Rup Chand v. Mahabir Parshad; Manindra Nath v.
Biswanath Kundu; Pratap Singh v. State of Punjab and R. V. Maqsud Ali.

147. In N. Sri Rama Reddy. V. V. Giri a decision of five learned Judges of this Court the following
observation made in Yusufalli case has been quoted with approval : (SCC p. 348, para 21)

                  The contemporaneous dialogue between them formed part of the res gestae and is
                  relevant and admissible under Section 8 of the Indian Evidence Act. The dialogue is
                  proved by Shaikh. The tape record of the dialogue corroborates his testimony. The
                  process of tape-recording offers an accurate method of storing and later reproducing
                  sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds.
                  Like a photograph of a relevant incident, a contemporaneous tape record of a relevant
                  conversation is a relevant fact and is admissible under Section 7 of the Indian
                  Evidence Act.

148. In R. M. Malkani v. State of Maharashtra this Court observed : (SCC p. 477, para 23)

                  Tape-recorded conversation is admissible provided first that the conversation is
                  relevant to the matters in issue; secondly, there is identification of the voice; and
                  thirdly, the accuracy of the tape-recorded conversation is proved by elimination the
                  possibility of erasing the tape record. A contemporaneous tape record of a relevant
                  conversation ins a relevant fact and is admissible under Section 8 of the Evidence
                  Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The
                  tape-recorded conversation is therefore a relevant fact and is admissible under
                  Section 7 of the Evidence Act.

149. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, this Court approved the
High Court relying upon the tape-recorded reproduction of the successful candidate's speeches to
voters for holding that he had appealed to them in the name of religion.

150. Mr. Rao learned counsel for the respondent relied upon the following four decisions in regard
to the proof required in cases where election of returned candidates is alleged to be void on the
ground of corrupt practice.
151. In M. Chenna Reddy v. R. C. Rao this Court observed :

                  This Court has held in a number of cases that the trial of an election petition on the
                  charge of the commission of a corrupt practice partakes of the nature of a criminal
                  trial in that the finding must be based not on the balance of probabilities but on direct
                  and cogent evidence to support it. In this connection, the inherent difference between
                  the trial of an election petition and a criminal trial may also be noted. At a criminal
                  trail the accused need not lead any evidence and ordinarily he does not do so unless
                  his case is to be established by positive evidence on his side, namely, his insanity or
                  his acting in self-defence to protect himself or a plea of alibi to show that he could
                  not have committed the crime with which he was charged. The trial of an election
                  petition on the charge of commission of corrupt practice is somewhat different. . . the
                  procedure before the High Court is to be in accordance with that applicable under the
                  Code of Civil Procedure to the trial of suits with the aid of the provis

152. In Balakrishna v. Fernandez this Court observed : (SCC p. 262, para 47)

                  Although the trial of an election petition is made in accordance with the Code of
                  Civil Procedure, it has been laid down that a corrupt practice must be proved in the
                  same way as a criminal charge is proved. In other words, the election petitioner must
                  exclude every hypothesis except that of guilty on the part of the returned candidate or
                  his election agent.

153. In Sultan Salahuddin Owasi v. Mohd. Osman Shaheed this Court observed : (SCC p. 283, para
3)

                  It is now well settled by a large catena of the authorities of this Court that a charge of
                  corrupt practice must be proved to the hilt, the standard of proof of such allegation is
                  the same as a charge of fraud in a criminal case.

154. In Ram Sharan Yadav v. Thakur Muneshwar Nath Singh this Court observed (SCC pp. 651-52,
paras 3 & 8)

                  As the charge of a corrupt practice is in the nature of a criminal charge, it is for the
                  party who sets up the plea of "undue influence" to prove it to the hilt beyond
                  reasonable doubt and the manner of proof should be the same as for an offence in a
                  criminal case. This is more so because once it is proved to the satisfaction of a court
                  that a candidate has been guilty of "undue influence" then he is likely to be
                  disqualified for a period of six years or such other period as the authority concerned
                  under Section 8-A of the Act may think fit. . .. While insisting on standard of strict
                  proof, the Curt should not extend or stretch this doctrine to such an extreme extent as
                  to make it well-nigh impossible to prove an allegation of corrupt practice. Such an
                  approach would defeat and frustrate the very laudable and sacrosanct object of the
                  Act in maintaining purity of the electoral process.

155. In regard to what constitute election offences Mr. Rao invited attention to the decision of
Ramaswami, J. in Nagendra Mahto v. State where it was stated in the complaint that the criminal
revision petitioner before the High Court insisted upon going into the room where the ballot papers
were kept though the Presiding Officer had warned him to go out of the room and also the petitioner
himself attempted to put the ballot papers into the box of one Nitai Singh Sardar and it has been
held that there was proper evidence to record a finding of guilt and sufficient to sustain the
conviction under Section 131(1) (b) and Section 136(1) (f) of the Act.

156. On the other hand, Mr. Sibal invited attention to this Court's decision in Ram Dial v. Sant Lal
in support of his contention about what is required to be proved in regard to an alleged corrupt
practice. After quoting the provisions of Section 2 of 46 and 47, Victoriac. 51 three learned Judges
of this Court have observed : (SCR p. 758)

                  The words of the English statute, quoted - , lay emphasis upon the individual aspect
                  of the exercise of undue influence. It was with reference to the words of that statute
                  that Bramwell, B., made the following observations in North Durham :

                  "When the language of the Act is examined it will be found that intimidation to be
                  within the statute must be intimidation practised upon an individual. " The Indian
                  Law, on the other hand, does not emphasise the individual aspect of the exercise of
                  such influence, but pays regard to the use of such influence as has the tendency to
                  bring about the result contemplated in the Clause. What is material under the Indian
                  Law, is not the actual effect produced, but the doing of such acts as are calculated to
                  interfere with the free exercise of any electoral right. Decisions of the English courts,
                  based on the words of the English statute, which are not strictly in pari materia with
                  the words of the Indian statute, cannot, therefore, be used as precedents in this
                  country.

                  In the present case, we are not concerned with the threat of temporal injury, damage
                  or harm. On the pleadings and on the findings of the Tribunal and of the High Court,
                  we are concerned with the undue exercise of spiritual influence which has been found
                  by the High Court to have been such a potent influence as to induce in the electors
                  the belief that they will be rendered objects of divine displeasure or spiritual censure
                  if they did not carry out the command of their spiritual head.

157. I shall now consider the evidence relating to the incidents at Kalaka and Burthal Jat polling
stations one after the another. The incident in and at the Kalaka polling station consists of two parts,
namely, (1) alleged booth-capturing by the respondent and his companions, all of them armed with
deadly weapons like pistol and sword or kirpan and the polling of bogus votes marked in favour of
the respondent after threatening the polling officers and polling agents who were in the polling
station with violence and making them to stand still, and (2) the respondent scaring away electors
who were standing in the queue outside the polling station awaiting their turn for casting their votes.
Regarding the first part of the incident at Kalaka there is the evidence of PWs 7 to 10, 12, 14, 17
and 18 on the side of the appellants and of RWs 1 to 6 and 22 on the side of the respondent. PWs 7
to 10 are official witnesses while PWs 12, 14, 17 and 18 are private individuals. Similarly, RWs 1 to
4 are official witnesse

158. Tara Chand (PW 12) is one of the appellants. He was the polling agent of the Congress (I)
candidate, Sumitra Devi who has been referred to at some places in the evidence as Sumitra Bai,
along with Amar Singh (PW 17). His evidence is that he retired as polling agent after one hour and
PW 17 took over as polling agent and thereafter he was arranging the voters in the queue. He has
stated that the respondent and 5 or 7 of his companions, all of them armed, entered the polling
station when he was standing at the gate and they threatened the polling staff at gunpoint and asked
them to stand aside. Thereafter the respondent asked his companions to do their work and they tore
off the ballot papers from the bundle and affixed the seal in favour of the respondent and put those
ballot papers into the ballot box. The respondent's companions, Tula Ram who was his polling
agent, Ram Krishan (RW 5), Desh Raj and Krishan Lal put the seats on the counterfoils and the
thumb impressions on the counterfoils of the ballot

159. Amar Singh (PW 17) of Kalaka was the polling agent of Sumitra Devi along with PW 12. He
claims to have taken over as polling agent from Tara Chand (PW 12) one hour after the
commencement of the poll. He has stated that at about 10.30 a.m. the respondent came inside the
polling station accompanied by 3 or 4 persons. The respondent was armed with a rifle while one of
his companions had a sword and the other had a pistol and the rest sticks. The respondent asked PW
17 and the polling staff to stand aside and directed his companions to poll votes. Thereupon the
respondent's companions took the ballot papers and affixed thumb impressions and marked the
ballot papers and put them into the ballot box. When PW 18 objected to the high-handed behaviour
of the respondent his Sikh companion thrust the sword at Mangal Singh (PW 18). When Basti Ram
also raised objection the respondent gave him a thrust with the butt of a rifle. PW 17 and others who
were in the polling station were pushed outside. The policemen who we

160. Mangal Singh (PW 18) of Kalaka has stated in his evidence that when he was in the polling
station and his particulars where being checked before he could cast his vote the respondent armed
with a gun and accompanied by 3 or 4 persons, one of them armed with a pistol and the other with a
sword and the rest with lathis came inside the polling station. The respondent asked PW 18 and
others who were in the polling station to stand aside under threat of being killed otherwise. When
PW 18 objected to the respondent's behaviour the respondent asked his men to beat him and turn
him out of the polling station. Thereupon the respondent's Sikh companion thrust the tip of his
sword near his right foot. When Basti Ram who was behind RW 18 protested against the behaviour
of the respondent and his companions the respondent caused an injury to him with the butt of a rifle.
Later the people of Kalaka village and some police personnel arrived and the respondent and his
companions ran away. PW 18 and other informed PW 10

161. Hari Singh (PW 8) who was a teacher in one of the Ahir Educational Institutions was the
Presiding Officer at the Kalaka poling station. He has stated that at about 10.30 a.m. until which
time the polling went on smoothly, the respondent accompanied by some other persons reached the
polling station and came into the polling station along with four or five person, carrying a small gun
with him while one of his companions was carrying a pistol and another a sword and the others
sticks. The respondent who appeared to be in a rage pointed the gun towards PW 8 and others
saying that the remaining votes should be polled. The respondent's companions snatched ballot
papers from the officials in the polling station and tore off about 25 or 16 ballot papers and marked
them in favour of the respondent and put them into the ballot box. They put their thumb impressions
on the counterfoils of the ballot papers. There was noise outside when the respondent and his
companions were inside the polling station. The responde

162. Bala Bhaskar (PW 7), the Deputy Commissioner of Mohindergarh was District Election
Officer for the election to the Haryana Legislative Assembly held in May 1982. He has stated that
when he was travelling by car at about 10.30 a.m. between Monodola and Zainabad villages in the
course of his visits to some of the polling stations in the Rewari constituency on May 19, 1982 he
received a wireless message to the effect that the respondent had complained against Congress (I)
workers saying that 40 or 50 of them had attacked Congress (J) workers at Kalaka. PW 7 reached
Kalaka polling station at 12.30 p.m. after instructing the police over the wireless to take action on
that complaint of the respondent. When he reached Kalaka polling station he received oral
complaints about the detention of a motor cycle belonging to the workers of the Congress (J) Party.
He went inside the polling station and tape-recorded the conversations with the officers in Ex. PW
7/1 of which Ex. P-1 is the transcript prepared under his

163. Shri Krishan (PW 10) was the Sub-Divisional Officer, Rewari and Returning Officer for the
Rewari constituency in the election held to the Haryana Legislative Assembly in May 1982. In the
course of his tour of the constituency after 10 a.m. on May 19, 1982 he reached Kalaka polling
station at about 11 or 11.30 a.m. on receipt of a complaint from the polling station to the effect that
the respondent along with some other persons intimidated the polling staff and the public at that
polling station. He was with PW 7 when he reached Kalaka polling station and he found the polling
at a standstill at that time. When he reached Kalaka polling station the Station House Officer of
Sadar Rewari was present there along with a head constable and some other police personnel. The
Deputy Commissioner (PW 7) conducted an enquiry and interrogated the polling staff and the police
personnel and tape-recorded their conversation. One of the polling officers told PW 10 that the
polling agents were turned out by the respondent

164. On the other hand, it is the evidence of Roop Chand (RW 1) who was steno-typist in the Office
of the Project Officer, Agricultural Department in Haryana and the alternate Presiding Officer in
Kalaka polling station on May 19, 1982 that after the polling started at 7.30 a.m. Ajit Singh son of
Rao Birendra Singh came to the polling station at about 8.30 a.m. armed with a rifle and
accompanied by 15 or 20 persons and asked for the respondent's polling agent Tula Ram and that
Ajit Singh's companions pushed Tula Ram out of the polling station. Ajit Singh remarked that the
polling at the Kalaka polling station had always been one sided and directed his companions to poll
votes. When the polling staff resisted, Ajit Singh abused RW 1 and others and asked his companions
to beat them and they slapped the polling staff. Ajit Singh's companions picked up some ballot
papers and tore them off from their counterfoils and put them into the ballot box for about one hour
and left the polling station thereafter. The resp pressure of the respondent.

165. Deen Dayal (RW 2), a teacher was the polling officer along with Dhani Ram (RW 4) who is
also a teacher. He has stated that after the polling at the Kalaka polling station went on peacefully
for about an hour Ajit Singh, armed with a pistol, came with 15 or 20 persons at about 8.30 a.m. and
entered Kalaka polling station forcibly and asked for the polling agent of the respondent and told his
companions to remove that polling agent out of the polling station whereupon two of his
companions forcibly removed him from there. Ajit Singh asked his companions to beat RW 2 and
others and they were accordingly beaten, and PW 8 told them to allow Ajit Singh's companions to
do whatever they like and thus avoid being beaten saying that he would make a complaint about the
matter. Ajit Singh and his companions polled bogus votes for about half an hour and left the polling
station. The respondent came there half an hour later and told RW 8 that he had been informed that
his polling agent had been beaten and that bogus

166. Mohinder Singh (RW 3) who was on duty as a police constable at Kalaka polling station on
May 19, 1982 has stated that about half an hour after the polling started at 7.30 a.m. he heard shouts
that Ajit Singh had come and saw Ajit Singh, armed with a pistol, coming into the polling station
along with 15 or 20 persons and that in spite of the fact that he obstructed 2 or 3 companions of Ajit
Singh, pushed the respondent's polling agent out of the polling station and started beating him and
he rescued him. He has also stated that he does not know what Ajit Singh and his companions did
inside the polling station where they remained for about 30 to 45 minutes and that the respondent
came there by a motor car with 2 or 3 persons about half an hour after Ajit Singh and his
companions left the place and left the place 2 or 3 minutes later after going inside the polling
station. He has further stated that about half an hour thereafter about 50 to 60 persons came form
Kalaka village and entered the polling staff

167. The evidence of RW 4 if more or less the same as that of RWs 1 to 3 as regards the alleged
forcible polling of bogus votes by Ajit Singh and his companions. He too has stated that at the
instance of PW 7 who arrived there about half an hour after PW 10 left the place after talking to PW
8 the polling started again. He has admitted in his cross-examination that PW 8 had some
conversation with PWs 7 and 10 but he has denied that the respondent came to the polling station
armed with a revolver and accompanied by 15 to 20 persons and got some votes polled at gunpoint
and ran away along with his companions on the arrival of the police and the villagers.

168. Ram Krishan (RW 5), the brother of the respondent's polling agent Tula Ram who has not been
called as a witness admittedly supported the respondent in the election held in May 1982. He has
stated that he went to the polling station for casting his vote at about 7.30 a.m. when the polling
started and that Ajit Singh, armed with a pistol, came to the polling station at about 8.30 a.m.
accompanied by 40 or 50 persons and entered the polling station with 15 or 20 persons. Some
persons who entered the polling station along with Ajit Singh dragged Tula Ram out of the polling
station and beat him and when he intervened they started beating him also as a result of which his
clothes got torn and he was rescued by the police constable (RW 3). He went with his brother by his
scooter to Rewari and reported to the respondent about the incident and leaving Tula Ram at Rewari
he came along with the respondent and 2 or 3 other persons by a motor car to Kalaka village where
the respondent went into the polling station a

169. Suresh (RW 6) has stated that when he reached Kalaka polling station at 8.30 a.m. in May 1982
Ajit Singh, armed with a revolver, came there with 40 to 50 persons and went inside the polling
agent Tula Ram was dragged out of the polling station and beaten. When RW 5 rushed for his help
he too was beaten and was rescued by a police constable who was on duty at the polling station. The
respondent came there by a car about half an hour after Ajit Singh and his companions left the place
and went away after remaining in the polling station for about 5 or 6 minutes. The appellants' case
of forcible polling by the respondent's men had been put to RW 6 and denied by him. He too has
stated in his cross-examination that PWs 7 and 10 came to the polling station after the respondent
left the place and that on their intervention polling restarted and the people started forming a queue
and he himself cast his vote thereafter.

170. The respondent RW 22 has stated that when he was in his house at Rewari on May 19, 1982
after deciding not to go out of the house on that day RW 5 and his polling agent Tula Ram came
there at 8.45 a.m. from Kalaka polling station with their clothes torn and appearing to have been
beaten badly and told him that Ajit Singh accompanied by 50 or 60 persons entered the polling and
that he thereupon went by a car to Kalaka village along with RW 5 at about 9.15 or 9.30 a.m. on
that day. Leaving his car at some distance he walked to the polling station and found 50 or 60
villagers collected there had he entered the polling station and protested to PW 8 and brought the
complaint given to him by RW 5 and Tula Ram to his notice. After PW 8 assured him that nothing
of that sort will be allowed to happen in the remaining part of the day he returned from Kalaka 7 or
8 minutes later and sent a written report to the police about the incident with copes to PW 7 and the
election authorities and received a message from th

171. The oral evidence of RWs 1 to 6 that Ajit Singh came along with some of his companions and
dragged out Tula Ram from Kalaka polling station and beat him and that they snatched ballot papers
and ballot boxes and got bogus votes polled in that polling station and the evidence of RW 22 that
RW 5 and Tula Ram came and told him that Ajit Singh accompanied by 50 or 60 persons entered
the polling station and beat them and indulge in forcible polling cannot be accepted for two
important reasons, namely, that no such plea has been put forward in the written statement of the
respondent where no doubt he has stated vaguely that the men of Rao Birendra Singh captured the
booth at Kalaka and the supporters and voters of the respondent were badly out-manoeuvred and it
could be gathered from the fact that whereas Sumitra Devi had obtained 484 votes he had obtained
only 53 votes in that polling station and not that Ajit Singh and his companions came to Kalaka
polling station and indulged in forcible voting or that they

172. Under Instruction 74 of Instructions to Presiding Officers issued by the Election Commission
of India, extracted above, the Presiding Officer is bound to draw up the proceedings connected with
the taking of the poll in the polling station in the diary to be maintained for the purpose in the form
in which Ex. P-5 had been filled up by the Presiding Officer (PW 8). The Presiding Officer is
directed by the instruction to go on recording the relevant events as and when they occur and not to
postpone the completion and filling of all the entries in the diary to the completion of the poll and
he has to mention therein all the important events. Even the alternate Presiding Officer (PW 1) has
stated in his evidence that the Presiding Officer (PW 8) told him that it was his duty to report about
the incident and he would do so. It is seen from column 18 of Ex. P-5 relating to the number of
votes polled that 195 votes were polled from 8 a.m. to 10 a.m., 205 from 12 noon to 2 p.m., 106+3
from 2 p.m. to 4 p.m. and s ence corroborating the oral evidence of the Presiding Officer (PW 8)
and other witnesses examined on the side of the appellants who have deposed about the first part of
the incident in the Kalaka polling station.

173. The next contemporaneous document corroborating the oral evidence of PW 8 is the copy of
the report of PW 8 to the police appended to FIR No. 103 of 1982, Ex. P-6 dated May 19, 1982,
prepared by the Assistant Sub-Inspector of Police, PW 9 on receipt of a rukka from the Sub-
Inspector of Police, Deep Chand. PW 9 has stated that it is in his hand-writing and correct according
to the material on the basis of which it was registered. As stated earlier, PW 9 has not been cross-
examined as regards the FIR contained in Ex. P-6. The learned trial Judge has rejected Ex. P-6 as
being inadmissible in evidence for corroborating the evidence of PW 8 about the incident in Kalaka
polling station on the ground that the original report of PW 8 to the police ha__d not been
summoned by the appellants. It is no doubt true that the original had not been summoned by the
appellants before PWs 8 and 9 deposed about Ex. P-6 in their evidence. PW 8 has stated inis
evidence that when he was writing the report soon after the Sub-In

174. The third piece of documentary evidence let in by the appellants for proving the first part of
the incident in the Kalaka polling station is the tape record (Ex. PW 7/1) of which Ex. P-1 is a
transcript prepared under the instructions and mostly in the presence of PW 7 by his stenographer.
PW 7 has stated in his evidence that inside the polling station at Kalaka he tape-recorded the version
given by the officers about the incident in that polling station in Ex. PW 7/1, and he compared the
transcript (Ex. P-1) prepared by his stenographer with the original and found it to be a correct
reproduction of the original, and he has authenticated it by signing it and that there are some gaps in
Ex. P-1 as the voices in the tape were not clear and audible. He has also stated that the tape recorder
which had been supplied to him by the Government, the tape Ex. PW 7/1 and the transcript Ex. P-1
remained in his custody throughout and had not been deposited by him in the election office. He has
not been questioned as

175. It is clear from these and the other decisions of this Court referred to supra that tape-recorded
evidence is admissible provided that the originality and the authenticity of the tape are free from
doubt. In the present case there is no valid reason to doubt them. In N. Sri Rama Reddy v. V. V. Giri
referred to above a bench of five learned Judges of this Court has held that the contemporaneous
dialogue tape-recorded in that case formed part of res gestae and that it is relevant and admissible
under Sections 7 and 8 of the Evidence Act. If it is res gestae it is admissible in evidence even under
Section 6 of the Evidence Act Illustration (a) whereof reads thus :

                  A is accused of the murder of B by beating him. Whatever was said or done by A or
                  B or the bystanders at the beating, or so shortly before or after it as to form part of
                  the transaction, is a relevant fact.

176. The following passage in regard to incidents forming part of the res gestae is found in para 509
of Halsbury's Laws of England (Vol. 15) Third Edition :

                  There are many incidents, however, which, though not strictly constituting a fact in
                  issue, may yet be regarded as forming a part of it, in the sense that they closely
                  accompany and explain that fact. In testifying to the matters in issue, therefore,
                  witnesses must state them no tin their barest possible form, but with a reasonable
                  fullness of detail and circumstance. These constituent or accompanying incidents are
                  said to be admissible as forming part of the res gestae. When they consist of
                  declarations accompanying an act they are subject to three qualifications : (1) they
                  must be contemporaneous or almost contemporaneous with the fact in issue and must
                  not be made at such an interval as to allow of fabrication or to reduce them to the
                  mere narrative of a past event though this is subject to apparent exceptions in the case
                  of continuing facts; (2) they must relate to and explain the act they accompany, and
                  not independent facts prior or subsequent thereto; and (3) though admissible to
                  explain, they are not

177. PW 7 has stated in his evidence that the voice of PW 8 who was the Presiding Officer at
Kalaka polling station is recorded in the tape, that the tape contains also the conversation of the
alternate Presiding Officer, Roop Chand (RW 1) and that the voice of the constable Mohinder Singh
(RW 3) who was on duty at the polling station and had made a complaint to him is also recorded in
the tape. It is true that he has admitted in his cross-examination that he cannot identify the voice
with any of the persons mentioned by him. The transcript of the tape Ex. (PW 7/1) after it had been
re-recorded in a larger tape with the help of a more sophisticated instrument in this Court was
prepared by this Court and some portions thereof has been admitted by RW 22 to be in his voice and
he has recognised in the larger tape the voice of even PW 7 in some portions of the conversation
which admittedly took place between him and PW 7 in the office of RW 10 at about 7.30 p.m. on
May 19, 1982. It is seen from the transcript th

178. Coming now to Ex. P-2, PW 7 has stated in that report that around 10.30 a.m. when he was
proceeding by his car between Manodola and Zainabad villages he received a message on the police
wireless that in Rewari constituency the Congress (J) candidate had complained that about 50 or 60
Congress (I) workers had attacked his workers in Kalaka village. He immediately directed the
Station House Officer of Sadar Rewari to rush to the village. At 11.35 a.m. he received a message
on the police wireless that villagers had refused to vote in Kalaka alleging that Congress (J) workers
had polled some bogus votes in Kalaka polling station. Therefore, he proceeded to Kalaka polling
station and interrogated the Presiding Officer and the polling officers of the polling station and
recorded the conversation in his tape recorder. When he was told that Congress (J) workers came
into the polling station and snatched ballot papers from the polling staff and polled them in favour
of the respondent, he advised the polling offi

179. With respect to the office which he holds, the respondent, as a party and his own witness, is
wholly unreliable. In his written statement he had vaguely alleged that the men of Rao Birendra
Singh captured the booth at Kalaka and the supporters and voters of the respondent were badly out -
manoeuvred and that the said fact could be gathered from the fact that whereas Sumitra Devi had
obtained 484 votes he had obtained only 53 votes in that polling station. The only suggestion made
to PWs 12 and 17 who have denied it is that Ajit Singh visited the Kalaka polling station. No
suggestion was made to any of the witnesses examined on the side of the appellants in the cross-
examination that Ajit Singh visited the Kalaka polling station. No suggestion was made to any of
the witnesses examined on the side of the appellants in the cross-examination that Ajit Singh came
armed with some armed companions and beat RW 5 and Tula Ram and dragged them out and that
they forcibly polled bogus votes. Such a case was project residence at Rewari in the morning of
May 19, 1982 and informed him about the incident at the Kalaka polling station and thereafter he
went there and complained to PW 8 about it, he should have come to know about the details of the
incident before he filed his written statement long thereafter on September 14, 1982. If by
September 14, 1982 the picture of what happened at the Kalaka polling station on May 19, 1982
was not clear it is not known how it would have become clear only after appellants had closed their
evidence and just before the respondent began to let in oral evidence on his side. Therefore, the
explanation of RW 22 that he had not named Ajit Singh specifically in relation to the incident at the
Kalaka polling station not because it never happened in the manner stated by his witnesses but
because the picture was not clear at that time cannot be accepted at all.

180. RW 22 had stoutly denied in the trial Court that the tape record (Ex. PW 7/1) contained his
voice but added that it is rather the voice of Rao Birendra Singh. But after the tape was re-recorded
with the aid of a more sophisticated instrument by playing it in this Court in the presence of the
respondent in the office and also in the open Court, RW 22 has admitted some portions of his
conversation with RW 7 in the office of PW 10 at about 7 or 7.30 a.m. on May 19, 1982. In the
cross-examination made in this Court after RW 22 had heard the re-recorded larger tape being
played in the Court RW 22 has stated that he could not recognise the voice of any person in the tape
other than those of himself and PW 7. If the tape used by PW 7 for recording the conversation could
not be followed and understood clearly when it was played in the trial Court with the very same
instrument by which it was recorded what RW 22 could have said was that he cannot say whether it
contains his voice but he could not have gone to th

181. In his cross-examination in this Court RW 22 has stated that the was the Speaker of the
Haryana Legislative Assembly until the new Legislative Assembly met after the elections in May
1982 an could therefore have summoned any officer to his office and he did not go to the police
station on May 19, 1982 and he is quite positive about it. But in the later portion of his evidence in
this Court he has stated that not only his admission of the transcript of the tape (Ex P-1) to the effect
that he went to the police station but also his written statement that he did not go to the police
station on May 19, 1982 are both correct and that he would emphasize that he did not go to the
police station at all on that day. He has also stated that although the voice in the tape says that he
went to the police station and that voice appears to be his won voice he did not go to the police
station because he was the Speaker of the Haryana Legislative Assembly on that day and could have
summoned any police officer to his of

182. RW 22 has admitted the voice in the tape that when PW 7 asked him about when he received
the message about the incident at Kalaka polling station he answered by saying that it was about
11.30 a.m. and that it is correctly recorded in the tape. It is seen from the transcript that the
respondent had stated in that conversation that he thereafter went to the Kalaka polling station and
questioned his men as to whether they were not ashamed that two or three 'chaps' belonging to the
same village had been beaten. However, he would say in his evidence that the went to Kalaka only
once on May 19, 1982 and that it was about 9 or 9.30 a.m. There is abundant unimpeachable
evidence on the side of the appellants to show that the respondent, armed with a rifle, visited Kalaka
polling station accompanied by some armed persons at about 11.30 a.m. or 12 noon, and indulged in
the polling of bogus votes. PW 7 had stated in the course of his tape-recorded conversation with the
respondent in the office of PW 10 at about 7 o

183. The written statement is silent on the question whether the respondent visited Kalaka polling
station on May 19, 1982 except a mere denial. The respondent unsuccessfully attempted to file an
additional or amended written statement to the effect inter alia that he had decided not to move out
of his house and had not gone out of his house on May 19, 1982. This portion of the additional or
amended written statement which had not been received by the Court was put to him in cross-
examination by Mr. Sibal. RW 22 had stated that there appears to be a typing error in that statement
that he did not move out of his house on that day and that what he meant to say was that as a
consequence of the assurance of his supporters that he was going to succeed he acceded to their
wish and had decided not to move out of his house on that day. He would say that he did not read
that amended written statement and had no sufficient time to read it properly but that he did not give
specific instructions to his counsel on that m

184. In the election petition it is alleged in relation to the incident at the Burthal Jat polling station
that Anil Kumar and Satbir Singh are the relatives of the respondent. There is no denial much less
any specific denial of this allegation in the written statement of the respondent though it is a
material fact which ought to have been denied specifically if it was not admitted. Therefore, under
Order 8 Rule 5 of the Code of Civil Procedure which applies to proceedings in election petitions it
must be deemed to have been admitted by the respondent. Order 8 Rule 5 reads :

                  Every allegation of fact in the plaint, if not denied specifically or by necessary
                  implication, or stated to be not admitted in the pleading of the defendant, shall be
                  taken to be admitted except as against a person, under disability :

                  Provided that the court may in its discretion require any fact so admitted to be proved
                  otherwise than by such admission.

                  But during the trial RW 22 had repeatedly denied that Anil Kumar and Satbir Singh
                  were in any way related to him though in a portion of his evidence he would say that
                  Satbir Singh is the adopted son of Jagmal Singh, father of his wife who was divorced
                  in 1962 and that he does not know if Anil Kumar is the brother of his brother-in-law,
                  Surinder Kumar and he could not deny or admit that he is the brother of his brother-
                  in-law, Surinder Kumar as Surinder Kumar has 6 or 7 brothers. He has stated that the
                  does not know whether Anil Kumar and Satbir Singh are the two person who were
                  arrested in Burthal Jat village on May 19, 1982 for offences under Sections 107 and
                  151 of the Code of Criminal Procedure and that he had not exhibited grave concern
                  about Anil Kumar and Satbir Singh in the course of his conversation with PW 7 in
                  the office of PW 10 at 7 or 7.30 p.m. on May 19, 1982 or told PW 7 that they were
                  his relatives. But in his cross-examination in this Court he has admitted that Anil
                  Kumar and Satbir Singh ha

185. The evidence of the private witnesses examined by the appellants to depose about the first part
of the incident in the Kalaka polling station is fully corroborated by the evidence of the Presiding
Office (PW 8) and receives ample corroboration form the evidence of PWs 7 and 10. Their evidence
is corroborated by the reliable and contemporaneous documentary evidence by way of Exs. P-5, P-6
and the tape record Ex. PW 7/1 which are unimpeachable and also by what has been stated by PW 7
in his report (Ex. P-2) submitted by him to the Government some time after the results of the
election held in May 1982 were announced. Therefore, I reject the evidence of the respondent and
the other witnesses who have deposed on his side in regard to this part of the incident in the Kalaka
polling station and accept the evidence of PW 8 and other witnesses who have deposed about the
same on the side of the appellants-election petitioners and hold that the appellants have proved
satisfactorily and beyond reasonable doubt the

186. I shall now consider the evidence relating to the second part of the incident at the Kalaka
polling station.

187. Mr. Sibal did not press the case of the appellants regarding the second part of the incident at
the Kalaka polling station in his principal argument but he pressed that portion of the appellants'
case after Mr. Rao contended in the course of his argument that what is alleged to have happened
inside the polling station, even if true, will not constitute any corrupt practice but would amount
only to an electoral offence. Regarding this part of the case there is the evidence of Tara Chand (PW
12), Sheo Chand (PW 13), Puran (PW 14), Inder Singh (PW 16) and Mangal Singh (PW 18) on the
side of the appellants. Gur Dial who has been referred to in the election petition in this connection
was tendered as PW 15 for cross-examination but he has not been cross-examined by the learned
counsel for the respondent. PW 12 who was one of the electors and the polling agent of Sumitra Bai
in the election with which we are concerned at the Kalaka polling station has stated that when he
was arranging the electors to stand in

188. PW 13 has stated that when he was standing in the queue awaiting his turn for casting his vote
after reaching Kalaka polling station at about 10 a.m. the respondent came there at about 10 a.m.
along with 50 or 60 persons in two or three vehicles namely, a truck and two motor cycles. The
respondent was armed with a gun while his companions including Desh Raj, Krishan Lal and Ram
Krishan (RW 5) were armed with swords, rifles and lathis. Lambardar Ishwar (PW 16), Puran (PW
14), Ram Singh and others were standing in the queue at that time. The respondent threatened PW
13 and others saying that they cannot cast their votes and he asked them to go away under threat of
being beaten and shot, and out of fear PW 13 and others who were standing in the queue ran away.
It has been elicited in his cross-examination that he came back and cast his vote at 2 p.m. and that he
cannot say whether the others who were in the queue and had run away had come again or not for
casting their votes.

189. PW 14 has stated that he had gone to the polling station at about 10 or 11 a.m. for casting his
vote and was standing in the queue along with others. The respondent came there armed with a gun,
accompanied by 50 or 60 persons including Desh Raj, Krishan Lal, Balbir Singh, Ram Krishan (RW
5) and a Sikh armed with a kirpan. The respondent's companions created a commotion and the
respondent threatened PW 17 and others who were in the queue to run away on pain of being killed
otherwise and out of fear all the persons who were in the queue ran away. In his cross-examination
he has stated that about 15 or 20 persons were standing in the queue when the respondent and his
companions arrived at the polling station and that he cast his vote later at about 3 p.m. after clam
prevailed all around. He has denied the suggestion that he had given false evidence being a
Congress (I) worker.

190. Ishwar Singh (PW 16) the Lambardar of Kalaka village has stated that when he was standing in
the queue along with 14 or 15 persons at about 10 or 10.30 a.m. awaiting his turn for casting his
vote the respondent came there, accompanied by 3 or 4 persons including Desh Raj and Krishan Lal
(RW 6) of his village and threatened to kill him and he was hit with the butt of a gun by one of the
companions of the respondent and he ran away. He has also stated that PWs 13, 14, 15 and 17 were
also standing in the queue along with him and that after he informed the people of the village that
the respondent had come and threatened him the people of the village collected and came towards
the polling station whereupon respondent and his companions ran away leaving behind two motor
cycles by which respondent's companions had come there. There is abundant evidence on the side of
the appellants, referred to above, to show that when PW 7 and other officials arrived after the
incident in and at the Kalaka polling station th

191. PW 18 has stated that when he was inside Kalaka polling station and his particulars were being
checked before he could be allowed to vote the respondent came there and that 20 or 25 persons
who were standing in the queue ran away. He has admitted in his cross-examination that he had
canvassed for the Congress (I) Party but has denied the suggestion that he has always been helping
the Congress (I) candidates and has given false evidence on account of that reason.

192. This is all the oral evidence on the side of the appellants regarding the respondent threatening
electors who were standing in the queue at the Kalaka polling station awaiting their turn for casting
their votes in the morning of May 19, 1982 and scaring them away under threat of violence against
their person and thereby preventing them from exercising their referred to above in the discussion
relating to the first part of the incident at the Kalaka polling station and has been found to be not
reliable. It has been found earlier that the evidence of RW 22 and his witnesses that RW 22 went to
Kalaka polling station by car with some of his men only at about 9 or 9.30 a.m. on May 19, 1982
could not be accepted and that the respondent had received information at about 10.30 a.m. about
some Congress (J) workers having been beaten by Congress (I) workers in Kalaka, which message
had been flashed by the police wireless and received by PW 7 and he went there only thereafter.
There is unimpeachable evidence on th

193. About the incident at Burthal Jat polling station there is the evidence of PWs 7, 9 and 10 who
are official witnesses and of Mahabir Singh (PW 26), Dharam Vir (PW 27), Thaver Singh (PW 28),
Amir Chand (PW 29), Surjit Singh (PW 30), Raghubir Singh (PW 31), Shamsher Singh (PW 32),
Kishori Lal (PW 33), Ram Narain (PW 34) and Mam Chand (PW 35) on the side of the appellants.
There is evidence of Ravi Datt Sharma (RW 11), Parbhati (RW 12), Ami Lal (RW 13), Sheo Chand
(RW 14) and the respondent (RW 22) on the side of the respondent.

194. PW 26 of Burthal Jat village was the polling agent of the respondent himself and he had filed
the form (Ex. P-16) dated May 18, 1982 for the same. He has stated in his evidence that he had gone
to the polling station at 7 a.m. and had not seen any incident at that place. It is clear that PW 26 was
not prepared to go the whole hog to support the case of the appellants as regards the incident at the
Burthal Jat polling station but he has stated in his cross-examination that when he went to the
polling station he saw Anil Kumar and Satbir Singh canvassing votes for their candidate and that he
also saw a jeep with sticks. The learned trial Judge has stated in his judgment that though the
evidence establishes that Anil Kumar and Satbir Singh were canvassing votes for their candidate it
is not known from the evidence as to who their candidate was. But it is clear from the evidence
referred to already showing the concern of the respondent for Anil Kumar and Satbir Singh who had
been arrested by the police at t

195. PW 27 of Burthal Jat village has stated in his evidence that he had gone to Burthal Jat polling
station at 8 a.m. for casting his vote in the election held in May 1982. The respondent came there at
about 8 a.m. accompanied by 50 or 60 persons and told his polling agents, Mahabir and Udhey
Bhan that he was leaving some persons behind and he asked them to see that no one is permitted to
vote for the Congress (I) candidate and that they should ensure to have maximum votes polled in his
favour in that polling station. The respondent left behind 15 or 16 persons including Anil Kumar
and Satbir Singh, one of them a Sikh armed with a sword and the others with pistol and sticks and
the other persons who came with the respondent went away with him. In his cross-examination he
has stated that the respondent came to Burthal Jat polling station in a car while his companions came
by a motor cycle, a jeep and a truck. No doubt he is unable to mention the numbers or colour of the
vehicles or the colour of the turban o

196. PW 28 who belongs to Burthal Jat village has stated in his evidence that after he went to the
polling station the respondent came there accompanied by 50 or 60 persons at about 8 a.m. The
respondent was armed with a small gun while his companions were armed with rifles, ballas and
sticks. The respondent called his polling agents Mahabir and Udhey Bhan and told them that they
should not permit even a single vote to be cast in favour of the Congress (I) candidate and he was
leaving behind Anil Kumar and Satbir Singh along with 15 or 20 persons for their help. The other
people left behind by the respondent were armed with lathis. He has admitted in his cross-
examination that he was the polling agent of Sumitra Devi but he has denied the suggestion that the
respondent did not go to the polling agent of Sumitra Devi but he has denied the suggestion that the
respondent did not go to the polling station at all on that day and that he has given false evidence.

197. PW 29 who belongs to Burthal Jat village has stated in his evidence that he went to the polling
station at about 8 a.m. for casting his vote in the election with which we are concerned. The
respondent accompanied by 50 or 60 persons came there at about 8 a.m. and sent for his polling
agents Mahabir and Udhey Bhan and told them that they should not permit anyone to vote in favour
of the Congress (I) candidate. PWs 27 and 28 and many other persons were present when the
respondent said so. The respondent told Mahabir and Udhey Bhan that he was leaving behind Anil
Kumar and Satbir Singh for their help along with 15 or 20 persons who were found by PW 29 to be
armed with sticks. PW 29 was not permitted to cast his vote earlier and he therefore came again and
cast his vote at 3 p.m. He has stated in his cross-examination that he returned to his house after 8
a.m. out of fear and went back to the polling station at 3 p.m. for casting his vote and stayed there
till the afternoon. He has denied the suggestion tha

198. PW 30 who belongs to Burthal Jat village has stated in his evidence that he started to go to the
polling station at about 10.30 a.m. for casting his vote in the election with which we are concerned.
When he emerged from his village to proceed to the polling station for casting his vote Anil Kumar
and Satbir Singh met him and asked him as to whom he intended to cast his vote and they insisted
that he should vote for the respondent. On his refusal to do so Anil Kumar and Satbir Singh
threatened PW 30 when 2 or 3 persons armed with sticks were present with those two persons and
he therefor returned to his house. He went to the poling station at about 3.30 p.m. for casting his
vote and learnt that Anil Kumar and Satbir Singh had been arrested by the police. He has stated in
his cross-examination that the does not know to which place Anil Kumar and Satbir Singh belong
and that when he came to the polling station later at about 3 p.m. he was told that those two persons
were Anil Kumar and Satbir Singh. He has
199. PW 31 who belongs to Burthal Jat village has stated in his evidence that when he went to the
polling station at 11 a.m. for casting his vote in the election with which we are concerned he was
accosted by Anil Kumar and Satbir Singh who were present there along with 20 or 30 persons
armed with sticks about 25 yards away from the boundary of the polling station and they asked him
as to the person for whom he was going to cast his vote and they insisted that he should vote for the
respondent and threatened him when he replied that the would vote for the candidate of his own
choice. In view of the threat he went back to the village and came alter for casting his vote at about
3 p.m. and learnt that Anil Kumar and Satbir Singh had been taken into custody by the police. He
has admitted in his cross-examination that he did not complain to anybody about the threat but he
has denied the suggestion that he has given false evidence.

200. PW 32 is the Sarpanch of Burthal Jat village. He was admittedly the polling agent of Sumitra
Devi. He has stated in his evidence that he went to Burthal Jat polling station for the second time at
2.30 p.m. When he approached the main gate of the polling station he met Anil Kumar and Satbir
Singh and they asked him to support the respondent and when he told them that it was open to him
to vote for the candidate of his won choice there was an altercation and they started beating him an
he was rescued by PWs 33, 35 and others of his village. Meanwhile, an Assistant Sub-Inspector of
Police came there by jeep and they hurled abuses at him even in the presence of the Assistant Sub-
Inspector of Police and thereupon that police officer arrested Anil Kumar and Satbir Singh. He saw
a jeep containing sticks parked there, and the people who were in the jeep ran away when the police
arrived. He brought these facts to the notice of PWs 7 and 10 when they came there and they took
the jeep and the sticks into their cus

201. PW 33 who is the chowkidar of Burthal Jat village has stated in his evidence that when he went
to the polling station at about 2.30 or 3 p.m. during the last election to the Haryana Legislative
Assembly he saw Anil Kumar and Satbir Singh abusing and beating PW 32. PW 33 and Lambardar
Mam Chand (PW 35) and another Lambardar Ram Singh and others of Burthal Jat village separated
PW 32 from Anil Kumar and Satbir Singh. Meanwhile, an Assistant Sub-Inspector of Police Came
there, and about 10 or 15 other persons who were with Anil Kumar and Satbir Singh ran away on
seeing the police after leaving behind a jeep and a motor cycle which were taken into custody by the
police. PW 32 informed PWs 7 and 10 about wheat happened when they came there some time later.
In his cross-examination he has denied that PW 32 was not present at all at the Burthal Jat polling
station but was in his village at the time of the poll. He has denied that he was appointed as
chowkidar by PW 32 and has stated that the is Chowkidar of th

202. PW 34, the Lambardar of Kakoria village situate close to Burthal Jat village, has stated in his
evidence that he went to Burthal Jat polling station at about 2.30 or 3 p.m. for casting his vote in the
last election to the Haryana Legislative Assembly and saw Anil Kumar and Satbir Singh slapping
and fisting PW 32. He and PW 35 and others intervened and separated them. Some time thereafter a
Sub-Inspector of Police came and saw Anil Kumar and Satbir Singh. The police took a motor cycle
and a jeep which was with Anil Kumar and Satbir Singh into their custody. In his cross-examination
he has stated that he had not met Anil Kumar and Satbir Singh previously and that he does not know
the numbers of the jeep and the motor cycle. He has denied the suggestion that he had supported
Rao Birendra Singh in the election to Parliament in 1980 and did not go to Burthal Jat village at all
during the election in question and has deposed falsely under the influence of the appellants.

203. PW 35 son of Umrao Singh and Lambardar of Burthal Jat village was the polling agent of the
Bhartiya Janata Party candidate in the last election to the Haryana Legislative Assembly. He has
stated that after he reached Burthal Jat polling station at 7 a.m. the respondent came there at about 8
a.m. accompanied by 50 or 60 persons and called his polling agents and told them that they should
see to it that the Congress (I) candidate does not get votes and he added that he was leaving Anil
Kumar and Satbir Singh and 15 other persons for their help. At about 2.30 p.m. PW 35 saw Anil
Kumar and Satbir Singh beating PW 32 of his village and thereupon he and PWs 33 and 34
separated them. Meanwhile, an Assistant Sub-Inspector of Police came there and those two persons
beat PW 32 even in his presence whereupon the Assistant Sub-Inspector of Police took Anil Kumar
and Satbir Singh into custody, and 10 or 15 persons who were left behind by the respondent fled on
seeing the police leaving behind a motor cycle and a jee has denied that Ex. P-9 to which reference
would be made a little later contains his signature and he stated that there are two other persons of
his name and one of them is the son of Umrao Singh. He has further stated in his cross-examination
that the respondent told Anil Kumar and Satbir Singh that they should see to it that no other
candidate except himself gets votes in that polling station. He has denied that the had made a false
statement before PWs 7 and 10 and that he has given a false evidence being a member of the
opposite faction.

204. The Deputy Commissioner and District Election Officer (PW 7) has stated in his evidence that
on the day of poll he proceeded from Kalaka polling station to Burthal Jat polling station pursuant
to the receipt of a complaint that a Congress (J) worker was attacked by the villagers of Burthal Jat.
The polling officer of Burthal Jat polling station told him when he visited that place that nothing
had happened inside the polling station but some of the officers in the polling station told him that
there were some incidents outside the polling station though they were not sure about identity of the
persons responsible for the same. Some villagers told PW 7 that Congress (J) workers had come in a
jeep and tried to create trouble and that one of them ran away while the police had detained two of
those persons. PW 7 interrogated those two persons and they then told him that they had nothing to
do with the jeep whose number he has recorded in the tape Ex. PW 7/1. PW 7 found some sticks in
the jeep and he asked th

205. The Returning Officer and Sub-Divisional Officer, Rewari (PW 10) who went to Burthal Jat
polling station along with PW 7 has stated in his evidence that he saw Anil Kumar and Satbir Singh
surrounded by the people of that village and a jeep containing some sticks parked there and that
Anil Kumar and Satbir Singh and the jeep were taken into custody by the police under the orders of
PW 7. He has further stated that Ex. 0-9 was handed over to him by one Mam Chand of Burthal Jat
village on that day. As stated earlier PW 35 who is Mam Chand son of Umrao Singh of Burthal Jat
village has disowned Ex. P-9. In his cross-examination PW 10 has denied that he had discriminated
between the candidates while disposing of the complaints about Kalaka and Burthal Jat polling
stations. Ex. P-9 addressed by Mam Chand to PW 10 is to the effect that the respondent pointed out
his gun at the Presiding Officer and other persons in Burthal Jat polling station after he came there
at about 1.30 p.m. along with 65 or 70 persons an

206. The Assistant Sub-Inspector of Police (PW 9) who had been posted at Sadar Rewari police
station has stated in his evidence that at the instance of Assistant Sub-Inspector Jagan Nath who
returned to the police station at 3.30 p.m. on May 19, 1982 he recorded a Daily Diary Report of
which Ex. P-8 is a copy and that Ex. P-8 is a correct copy of the original report. It is mentioned in
Ex. P-8 that Anil Kumar and Satbir Singh of Kutubpur and Dulana respectively were abusing and
beating Sarpanch Shamsher Singh (PW 32) whereupon an Assistant Sub-Inspector of Police along
with others intervened and separated them, that Anil Kumar and Satbir Singh were creating a
situation of breach of peace and were therefore taken into police custody and that the jeep bearing
registration number DED/3203 was also taken into police custody. PW 9 has not been cross-
examined regarding Ex. P-8. Ex. P-28 is a copy of the judgment in the case registered in the
concerned FIR No. 104 of 1982 dated May 19, 1982 under Sections 107 and 1

207. On the other hand, RW 11, a lecturer in a Higher Secondary School at Rewari who was a
polling officer at Burthal Jat polling station during the election with which we are concerned has
stated in his evidence that no untoward incident of any type took place and that the respondent did
not visit that polling station on that day. In view of the documentary evidence and the other oral
evidence referred to above which show that no incident did take place outside Burthal Jat polling
station and that a jeep containing some lathis as also Anil Kumar and Satbir Singh were taken into
custody and those two persons were prosecuted in a case registered against them under Sections 107
and 51 of the Code of Criminal Procedure it is not possible to accept the evidence of RW 11 that no
incident took place and that the respondent did not go to Burthal Jat polling station at all on May 19,
1982. It must also be noted that RW 11 has admitted in his cross-examination that he could not have
known what happened outside the po

208. Mr. Sibal did not rely upon any portion of the tape relating to the conversation in Burthal Jat
polling station but he has relied for the purpose of the appellants' case in relation to Burthal Jat
polling station upon that portion of the tape which relates to the conversation between PW 7 and
RW 22 in the office of PW 10 at about 7 or 7.30 p.m. on May 19, 1982. The fact that a portion of
the tape-recorded conversation in Burthal Jat polling station got erased by PW 7's own voice due to
inadvertence is no reason for rejecting the remaining portion of the tape. It was demonstrated in this
Court that the tape recorder has only one knob for operating the recorder for three purposes, namely,
recording, playing and rewinding. If by mistake the knob is pushed for rewinding and thereafter for
recording at a particular point it is probable that what has been recorded earlier gets erased by the
time the mistake in operating the knob is noticed. Therefore, there is no reason to reject the
evidence of PW 7 that a p

209. The oral and documentary evidence regarding the incident at Burthal Jat polling station let in
by the appellants receives corroboration to a certain extent from the evidence of some of the
respondent's own witnesses. As stated earlier, RW 12 has admitted that PW 32 who was standing
about 80 kadams away from the polling station was having an altercation with some people and that
even when the altercation was going on some police personnel arrived there and they took into
custody two persons and there was also a jeep at some distance away from the place where PW 32
and others were having an altercation. Even RW 13 has stated that PW 32 was having a dispute with
two unknown persons about 120 kadams away from the polling station and soon thereafter he heard
people saying that the Superintendent of Police took away those two unknown persons. The names
of Anil Kumar and Satbir Singh had been specifically and clearly mentioned in the election petition
in regard to the incident at the Burthal Jat polling statio sses to rebut the case of the appellants.
Therefore, as observed in Chenna Reddy v. R. C. Rao in these circumstances an adverse inference
has to be drawn against the respondent who has not called those two persons as his witnesses though
their evidence should be available to him in support of his contention regarding the incident at
Burthal Jat polling station. Therefore, I accept the oral and documentary evidence let in by the
appellants as referred to above as being reliable and reject the evidence of the respondent and his
witnesses in regard to the incident at Burthal Jat polling station and find that at the instance of the
respondent his relatives Anil Kumar and Satbir Singh who were left behind by him along with 15 or
20 persons with a jeep containing sticks interfered with the exercise of the electoral right of PW 32
and others as alleged in the election petition as a result of which they had to go away from the queue
in which they were standing awaiting their turn for casting their votes though they

210. Now I shall consider the respondent's contention raised in the written statement that the
allegation that the respondent and some of his armed companions entered the polling station and
brandished their guns at the Presiding Officer, and ordered the other polling staff and polling agents
of various candidates to stand still does not constitute any corrupt practice and that the allegation
that the polling agents Amar Singh and Suraj Ban were threatened and turned out of the polling
station does not constitute corrupt practice as they are not alleged to be electors of Kalaka village.
Mr. Rao submitted that these acts, even if proved, would amount to only electoral offences under
Section 136 (b), (f) and (g) read with Section 8 and would not constitute corrupt practice under
Section 123(2) read with Section 79(d) of the Act. In support of his contention Mr. Rao invited this
Court's attention to the decision in Nagendra Mahto v. State where it has been held, as stated earlier,
that the criminal revision pet

211. What constitute electoral offences are detailed in Sections 125 to 136 which fall under Chapter
III of the Act. Section 125 relates to promoting enmity between classes in connection with election.
Section 126 relates to prohibition of public meetings on the day preceding the election day and on
the election day. Section 127 relates to disturbances at election meetings. Section 127-A relates to
restrictions on the printing of pamphlets, posters etc. Section 128 relates to maintenance of secrecy
of voting. Section 129 relates to prohibition of Officers, etc., at elections acting for candidates or to
influence voting. Section 130 relates to prohibition of canvassing in or near polling stations. Section
131 provides for penalty for disorderly conduct in or near polling stations. Section 132 provides for
penalty for misconduct at the polling stations. Section 133 provides for penalty for illegal hiring or
procuring of conveyances at elections. Section 134 relates to breaches of official duty in connection
wi

212. I have referred to and discussed the evidence somewhat in detail in view of the fact that I have
disagreed not only with the learned trial Judge but also with respect with my learned brother Fazal
Ali, J. with whom my learned brother Mukharji, J. has agreed. The respondent in this case had
managed to keep away from the Court material evidence by way of the original report of the
Presiding Officer, a copy of which is contained in Ex. P-6, by filing CMP 31(E) of 1983 in the trial
court. He had cited the observer (RW 20) as his witness to depose about his case regarding the
allegations made by the appellants in paras 9 to 12 of the election petition regarding the corrupt
practices. But he did not examine RW 20 for that purpose and had called him only for the purpose
of production of some record without any oath being administered to him though in his tape-
recorded conversation with PW 7 in the office of PW 10 on May 19, 1982, referred to above, he had
admittedly asked PW 7 to get everything noted by PW 20

SABYASACHI MUKHARJI, J. (concurring)-

Having had the advantage of reading the judgment of my learned brother Fazal Ali, J., I agree with
the reasoning and the conclusions arrived at by my learned brother. I would, however, like to
express my views on following four points involved in the appeal : firstly, this being appeal under
Section 116-A of the Representation of the People Act, 1951 which is in he nature of first appeal to
this Court, how should the appraisement of evidence by the trial court be reviewed by this Court in
this appeal, secondly, subject to what safeguards the tape-recorded evidence should be accepted,
thirdly, this being election petition involving corrupt practice, the nature of evidence required to be
proved by a contesting party in order to succeed, and fourthly, whether bogus votes or booth
capturing itself is a corrupt practice because it deprives other genuine voters in general of the right
to vote or the right to abstain from voting.

214. In this case, evidence of tape-recording made by the Deputy Commissioner, Shri Bhaskaran,
was produced before the High Court. In this tape-recorded evidence the Deputy Commissioner has
recorded the incidents on the date of polling at several booths but reliance was placed only on the
evidence relating to two booths namely Kalaka and Burthal Jat. For the reasons recorded in his
judgment, the learned trial Judge has not accepted the tape-recorded evidence. The tape record
purports to record statements made by some persons including polling agent, polling officer, Col.
Ram Singh and Deputy Commissioner himself. About the acceptance and reliability of evidence on
tape-recording, one should proceed very cautiously. In this connection on the analogy of mutilated
document if the tape-recording is not coherent or distinct or clear, this should not be relied upon.
See in this connection the observations in American Jurisprudence Vol. 30 page 939.

215. In the case of R. v. Maqsud Ali, in respect of criminal trial, the question was considered by the
Court of Appeal in England. A tape-recording, it was held, was admissible in evidence provided the
accuracy of the recording can be proved and the voices recorded can be properly identified and that
the evidence is relevant and otherwise admissible. The Court, however, observed that such evidence
should always be regarded with some caution and assessed in the light of all the circumstances of
each case. There cannot, however, be any question of laying down any exhaustive set of rules by
which the admissibility of such evidence should be judged. It was further observed that provided the
jury was guided by what they hear themselves from the tape-recording and on that they base their
ultimate decision, there proved, being put before them. It is not necessary to set out the particular
facts of that case. It may be noted, however, that Marshall, J. had observed at pages 469-70 of the
report as follows :

                  It is next said that the recording was a bad one, overlaid in places by street and other
                  noises. This obviously was so and, as a result, much of the conversation was
                  inaudible or undecipherable. Insofar as that was so, much of the conversation was
                  never transcribed, but there still remained much that was transcribed, and the learned
                  Judge after full argument ruled that what was deciphered should be left for the jury to
                  assess. We think that he was right. Lastly, it was said that the difficulties of language
                  were such as to make any transcription unreliable and misleading. This argument the
                  learned Judge treated with great care and circumspection. The recorded conversation
                  was in Punjabi dialect confined to a particular area of Pakistan. He was told that
                  there were many such dialects in which similar words differed in or had more than
                  one meaning, that the meaning of sentences often depended on the order of the
                  words, that pronouns were matters of inference and not represented by actual words.
                  Often only part

216. It has to be borne in mind that in England and in America, the mechanism of tape-recording is
well-advanced. In this country, it is not so as yet. Furthermore the infirmities, some of which have
been noted by Marshall, J. of tape-recording, are more evident in the instant case before us.

217. In R. v. Robson, the accused was charged, inter alia, with corruption. The prosecution sought
to put in evidence certain tape-recordings. The defence contended that these were not admissible
because (i) it had not been shown that these were the originals or in the absence of the originals true
copies of them, and (ii) they were misleading and should not be relied on because in many places
these were unintelligible and of poor quality and their potential prejudicial effect would therefore
outweigh the evidentiary value claimed for these. It was held by the Court as follows : (as in the
head note)

                  The recordings were admissible for the following reasons -
                  (i) the court was required to do no more than satisfy itself that a prima facie case of
                  originally had been made out by evidence which defined and described the
                  provenance and history of the recordings up to the moment of production in court
                  and had not been disturbed on cross-examination; in the circumstances that
                  requirement had been fulfilled (see p. 701 F and p. 702 A, post).

                  (ii) the court was satisfied, on the balance of probabilities, that the recordings were
                  original and authentic and their quality was adequate to enable the jury to form a fair
                  assessment of the conversations recorded in them and should not be excluded on that
                  account (see p. 703 F and G, post).

218. In the instant case, the tape-recordings, as we have heard, were misleading and could not be
relied on because in most places they were unintelligible and of poor quality and of no use,
therefore their potential prejudicial effect outweighs the evidentiary value of these recordings.

219. This Court had also considered this question in N. Sri Rama Reddy v. V. V. Giri. There in case
of an election trial, it was held by this Court that the previous statement made by a person and
recorded on tape, could be used not only to corroborate the evidence given by the witness in court
but also to contradict his evidence given before the Court, as well as to test the veracity of the
witness and also to impeach his impartiality. Apart from being used for corroboration, the evidence
was admissible in respect of the other three matters under Sections 146(1), 153, Exception (2) and
Section 155(3) of the Evidence Act. This Court observed after referring to some cases that two
propositions are clear that (1) tape-recorded conversation is admissible in evidence (2) if it contains
the previous statement made by a witness, it may be used to contradict his evidence given before the
Court. But the Court cautioned itself at page 411 that though tape-recording may be admissible what
weight it has to be put to su

220. In the case of R. M. Malkani v. State of Maharashtra, this Court observed that tape-recorded
conversation was admissible provided firstly that the conversation was relevant to the matters in
issue, secondly, there was identification of the voice and thirdly, the accuracy of tape-recorded
conversation has to be proved by eliminating the possibility of erasing the tape.

221. In the facts of the present case, however, the dangers noted by this Court were present. So
therefore though in an appropriate case it may be possible to rely upon tape-recorded conversation,
in the facts of this case and for the infirmities in the tape-recorded evidence as pointed out before,
this cannot be relied in the instant case.

222. On the aspect of the nature of evidence, the question here is not who is a saint or who is a
sinner. It has to be borne in mind that this is a quasi-criminal proceeding. It has been so held in
numerous decisions. 'Quasi' means 'as if', 'similar to'. The question of nature of evidence was rather
exhaustively examined by a decision of this Court in M. Chenna Reddy v. V. Ramachandra Rao.
There after discussing the evidence, G. K. Mitter, J. speaking for this Court reiterated the nature of
evidence at pages 414-415 thus :

                  This Court has held in a number of cases that the trial of an election petition on the
                  charge of the commission of a corrupt practice partakes of the nature of a criminal
                  trial in that the finding must be based not on the balance of probabilities but on direct
                  and cogent evidence to support it. In this connection, the inherent difference between
                  the trial of an election petition and a criminal trial may also be noted. At a criminal
                  trial the accused need not lead any evidence and ordinarily he does not do so unless
                  his case is to be established by positive evidence on his side, namely, his insanity or
                  his acting in self-defence to protect himself or a plea of alibi to show that he could
                  not have committed the crime with which he was charged. The trial of an election
                  petition on the charge of commission of corrupt practice is somewhat different. More
                  often than not proof of such corrupt practices depends on the oral testimony of
                  witnesses. The candidate charged with such corrupt practice invariably leads evid

223. In the case of Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, this Court observed that
the charge of a corrupt practice is in the nature of a criminal charge which if proved, entails a very
heavy penalty in the form of disqualification. Therefore, a very cautious approach must be made in
order to prove the charge of undue influence levelled by the defeated candidate. It is for the party
who sets up the plea of "undue influence" to prove it to the hilt beyond reasonable doubt and the
manner of proof should be the same as for an offence in a criminal case. However, while insisting
on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme
extent as to make it well nigh impossible to prove an allegation of corrupt practice. See also in this
connection the observations in the case of Sardar Harcharan Singh v. Sardar Sajjan Singh.

224. Judged by the aforesaid standard, for the infirmities mentioned in the judgment of my learned
brother, it cannot be said that the appellants have proved their case to the extent required to succeed.

225. While in a first appeal, the entire evidence can be reviewed by the appellate court, and this
being the first appeal under Section 116-a of the Representation of the People Act, one must,
however, always bear in mind that where the question is whether the oral testimony should be
believed or not, the views of the trial Judge should not be lightly brushed aside where the trial Judge
has the advantage of judging the manner and demeanour of the witness which advantage the
appellate court does not enjoy. This is a limitation on all appellate courts whether be it the first
appeal or second appeal. In believing the oral testimony of a witness the views of the Judge who has
the advantage of watching the demeanour and the conduct of the witness cannot be lost sight of. See
the observations of this Court in Moti Lal v. Chandra Pratap Tiwari. See also the observations of
this Court in Raghuvir Singh v. Raghuvir Singh Kushwaha. In view of the nature of the evidence on
record, we find no reason to disagree with the

226. Last point indicated above is interesting as was sought to be raised by Mr. Sibal, because
preventing a person from casting his vote or causing a bogus vote purporting to be the vote of
someone other than the genuine voter would be a serious interference with the electoral process, as
grave as preventing a person from voting. Right to abstain from voting is recognised in our system
of election. But in view of the evidence in this case, the point need not pursued further.

227. For the reasons mentioned before, I agree that the appeal be dismissed.

ORDER

228. In accordance with the decision of the majority, the appeal is dismissed without any order as to
costs.

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