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TMI Blog1985 (8) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... urts 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. In such cases the judicial process and the judicial approach has to be both pragmatic and progressive sc 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. 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 benefit of the doubt. This is more so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised 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'. 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are confined only to the Kalaka and Burthal Jat polling booths. Therefore 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. 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 fraenchise. (2) The respondent alongwith his companions enter the booth and terrorised the polling officer as also the polling agents (Basti Ram Ishwar) of the Congress I candidate who were assaulted by The respondent by the but end of the barrel of his gun. (3) The respondent and others at gun point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. To begin with, as far back as 1959 in Ram Dial v. Sant Lal Ors., [1959] 2 supp. S.C.R. 748, the 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. In Samant N. Balakrishna, etc. v. George Fernandez Ors. etc.., [1969] 3 S.C.R. 603, this Court while dwelling on the principles to be followed in election cases pithily point out thus: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which one of us (Fazal Ali, J.) was a party, this Court observed thus:- 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 s the same as a charge of fraud in a criminal case. In Ram Sharan Yadav v. Thakur Muneshwar Nath Singh Ora. [1984] 4 S.C.C. 649, to which two of us were parties, this Court observed thus: 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 E 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 tempered with before it was replayed. (Emphasis ours) In the case of N. Sri Rama Reddy, etc. v. V.V.Giri [1971] 1 S.C.R. 399, the following observations were made: 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. In R.M. Malkani v. State of Maharashtra [1973] 2 S.C.R. 417, this Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape-recorded statement admissible otherwise not; and observed thus: Tape recorded conversation is admissible provided first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, [1965] All. E.R. 464., Marshall, J., observed thus:- C 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. We find ourselves in complete agreement with the view taken by Marshall, J., who was one of the celebrate Judges of the Court of Criminal Appeal. To the same effect is another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. By virtue of a notification dated 17.4.82 the Governor of Haryana called upon the voters to elect Members to the Vidhan Sabha. The last date for filing the nomination papers was 24.4.82, the date for scrutiny was 26.4.82 and 28.4.82 was the last date for withdrawal of candidature. The polling was held on 19.5.82 and the counting of votes took place on 20.5.82. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given in the judgment of the High Court as also on pages 10-12 of Vol. III of the Paperbooks. It is also alleged that the respondent with the aid of his companions snatched as many as 50 ballot papers from the polling staff and after marking them in his favour put them into the ballot box. Ultimately, on the arrival of the high officers the Presiding Officer lodged a detailed report giving his own version of the incident on the basis of which FIR was registered on 19.5.82 itself. P.W. 7, Mr. N. Balabhaskar, the Deputy Commissioner of Mohindergarh District, who was the Returning Officer of the entire constituency also reached the spot and made enquiries in the matter. As a result of the trouble created at the instance of the respondent, the polling had to be postponed as it was disrupted for more than an hour. 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 there particular points to show how far the allegation have been proved. To begin with, P.Ws. 7, 8, 12 to 18 deposed in favour of the appellants in respect of this polling booth. In order to rebut the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited it in the Record Room according to rules. By keeping the recorded cassette in his own custody, the possibility of tampering with or erasure of the recorded speech cannot be ruled out. Another serious defect in recording the statement on a tape recorder was that he had to take further care and precaution to see that the voice of the person whose statement was recorded should be fully identified. Here again, he seems to have fallen into an error resulting in a very anomalous position as some of the witnesses particularly those appearing for the respondent, have clearly denied their voices in the cassette and refused to identify the same. Others have partly admitted and partly denied their voices alleged to be those of the witnesses for the respondent. Finally, he himself admits that there were a number of voices which led to some disturbance and difficulties in putting Two and two together. All these manifest defects could have been avoided if in the usual course he would have administered oath to the witnesses, recorded their statements and got the same signed by them as also by himself. In a sanctimonious matter like this, it is extremely perilous to take a risk of this kind. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer at the Kalaka polling booth, has completely denied to have made any statement as recorded in the cassette and asserts that he had absolutely no talk with P.W. 7. Similarly, R.W. 3 (constable) stated that P.W. 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 R.W. 3. R.W. 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 Exhibit P-l 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.' It Would thus appear that the two witnesses for the respondent, who were government servants and therefore official witnesses, clearly and categorically d denied having made any such statement in The cassette. P.W.. 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 (R.Ws. 1 and 3) at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pot, 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. Another reason which throws a considerable doubt on the testimony of the witnesses of the appellants is that P.W. 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 P.W. 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 (P.W. 7) that he did not receive any written complaint from the officers concerned. 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 P.W. 10 (A.S.I.) who was accompanying the D.C. said that he received the information that one of the candidates, viz., Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. . Coming now to the rest of the evidence of R.W. 1, 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 R.W. 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 (P.W. 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 meantime, 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 to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that necessary action would be taken. He further states that the D.C. Only talked to the Presiding Officer and not to any other member of the polling staff. This shows that the evidence of this witness is true. 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 R 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). The witness states that after some time the S.D.O. came there and after having a talk with the Polling Officer he went away. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 necessary to file any complaint with the police. RW 6 (Suresh) was also a voter waiting in a queue to cast his vote when at about 8.30 a.m. AJit Singh aimed 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 state that after about half-an- hour of the departure of Ajit Singh and his party, Col. Ram Singh came and after spend 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh, alongwith 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 to 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 timing of the voting. 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. tie then returned and cast his vote at about 3.00 P.M. Not much turns upon to evidence. Rather his evidence shows that he reached the spot nearabout 3.00 p.m. when peace had been restored and the polling had restarted smoothly. More or less, to the same effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 com plaint could throw light on the incident if at all lt 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 petitioners' case is irresistible. The evidence of the A petitioners is not of the type, which could persuade me to take a decision in their f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooth. The persons who were attacked at Burthal by the villagers and whom he did not interrogate, for reasons best known to him, were Satbir Singh and Anil Kumar. This part of the evidence, therefore, corroborates the case of the respondent that assuming Satbir Singh and Anil Kumar were companions of Col. Ram Singh but they had undoubtedly been attack at the village and the D.C. also admits that the Sarpanch to the village Burthal had complaint to him regarding this matter when he reached Burthal Booth. PW 7 then says that at Burthal he recorded the conversation of the Presiding Officer in detail though he admits that some portion of the recorded conversation was erased inadvertently due to his own voice being recorded there. This is all that witness says in respect of Burthal booth. Accepting the entire testimonial 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 inqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. We shall, however, develop this aspect of the [matter when we deal with the statements recorded on the tape-recorder. The next witness is Shri Krishan, S.D.O., PW l(). 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, alongwith D.C., he saw Satbir and Anil Kumar surrounded by the people of that village. He also saw a jeep containing some sticked 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 dubicious particularly in view of the evidence of Mam Chand (PW 35). PW 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been supported by an overwhelming majority of witnesses for the respondent. Therefore, we find it difficult to place any reliance on this witness and his evidence does not inspire any confidence and must be rejected. 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 verbally complained to the Presiding Officer about the conduct o Col. Ram Singh but he did not make any compliance to any officer in writing. His evidence, therefore, carried no weight unless corroborated by some unimpeachable documentary evidence. 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 Birendera Singh though he does not commit himself in so many words. 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 testim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its 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. 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. A bare perusal of the evidence of the witnesses for the appellant clearly reveals that they are not telling the truth and hence no implicit faith can be reposed on their testimony. This now brings us to the evidence led on behalf of the respondent. To begin with, RW 11, Ravi Datt Sharma, who was d 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. Withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross- examination itself presupposes and does not dispute the fact that Col. Ram Singh had come to the booth only in the morning, that is to say, long before the arrival of the deceased. This is an important and intrinsic circumstance to show that so far as Burthal booth is concerned, the statement recorded on the tape-recorder by PW 7 could not have included the respondent and that was perhaps the initial case of the appellants themselves. 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 as 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. RW 14, Sheo Chand, who as also a voter, fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he had received a wireless message from the police authorities to the effect that Ajit Singh and his party were creating trouble at Kalaka booth. The witness categorically states that he did not go the village Burthal Jat / r did he send any of his workers there. This fact is fully corroborated by the intrinsic evidence of the witness recorded by the D.C. at Burthal where the respondent does not appear to figure or, at any rate, his statement was not recorded at Burthal which is clear from the tape-recorded statement. 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. As, however, this witness, who appeared before us, was examined by us at our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the explanation comes to this: his mental state of mind by a miraculous process cooled down and led him to make the observations which he did in column No. 21(4). It seems to us that what had really happened was that the plea of intimidation, as alleged by the appellants, is a cock and bull story and when the witness was confronted with a contradictory situation and found himself in a tight corner he invented this ridiculous explanation which has to be stated only to be rejected. This affords an intrinsic proof of the fact that no threat or intimidation was given by the respondent or his men during his presence and in order to save his skin the witness may have made the entry in column No. 21(4) subsequently as an afterthought. Thus, no reliance can be placed on a witness like PW 8 for any purpose whatsoever. Ex.P-16 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. So far as the documents produced on behalf of the respondent are concerned, they are R-1 to R-9 consisting of letters written by Col. Ram Singh to vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements 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 trans- cript was not deposited in the official record room. 6. One important aspect as part of the manifest defects may now be mentioned. R.Ws. 1 and 3 have denied the identity of their voice 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 straight forward 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the persons concerned. Thus, in short, the manner and method of recording the statements in the taperecorder by the D.C. has resulted in a total mess making confusion worse confounded. P.W. 7 has not given the details to complete the picture as to what the respondent had done. Therefore, the evidence of 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. Having regard to the reasons 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. That should have clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him. Another important feature of his evidence is that he tacitly admits at 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 lose 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 statements was recorded in an atmosphere surcharged with emotions. 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 allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rewari Constituency No. 86 of the Haryana Legislative Assembly. In the election held for that Constituency on 19.5.82 Col. Ram Singh, hereinafter referred to as 'the respondent' who contested as the Congress (J) candidate was declared elected on 21.5.1982 after the counting was, over on 20.5.82, defeating has 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 8,760 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. Alter considering the evidence and hearing the counsel of both the parties the learned Judge who fried the election petition found that the appellants tailed to prove their case beyond all reasonable doubt and dismissed the petition with costs of ₹ 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allot papers. The police at the polling station was out numbered and remained as silent spectators. But when a number of people of the village came and additional police arrived the respondent and his companions made good their escape leaving behind two motor cycles bearing registration Nos. A.S.W. 5785 and H.R.P. 534. Two of the respondent's companions were caught by the public and handed over to the police. Suraj Bhan, Amar Singh, Ishwar Singh and Basti Ram made a report about the incident to the Returning Officer, Rewari Constituency at about 12 noon on the same day. On the arrival of the police the Presiding Officer of the polling station lodged a detailed report, giving his version of the incident and thereupon F.I.R. No. 103 of 1982 was registered by the police. The Deputy Commissioner of the District and the Returning Officer of the Constituency also came to the polling station and made enquiries and tape recorded the statements of some of the concerned persons. The process of polling got disrupted for over one hour and a number of voters had to refrain from voting. It is clear from these facts that the respondent and his companions with his consent attempted to interfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other weapons into their custody. Thus it is clear that Anil Kumar and Satbir Singh who are related to the respondent committed the aforesaid corrupt practice at the instance of and with the consent of the respondent. 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 manoeuvered 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 19.5.1982 does not support the appellant's 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 any one 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the election petition have not been supported by an affidavit? If so, what is its effect? (2) Whether petitioners Nos. 2 to 5 have not deposited the security under section 117 of the Representation of People Act, 1951? If so, what is its effect? (3) Whether petitioners Nos. 2 to 5 have not complied with section 81 (3) of the Representation of 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 Nos. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und 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 Man Chand (PW 35) who has, however, disowned it while holding the 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. 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 appellant is true and had been proved beyond reasonable doubt? Before considering the evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 (5 of 1908) and the Rules of the Court (including provisions at to the furnishing of security and the execution of any order of the Court) shall, so tar db may be, apply in relation to such appeal. Section 100 of the Act mention the grounds for declaring an relation to be void- Section 100(1) (b) reads thus: Subject to the provisions of sub-section (2) if the High Court 18 of opinion - 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. Section 123 of the Act lays down what are corrupt practices A and sub-section 2 thereof reads thus:- 123(2) Undue influence, that is to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ape recording was a matter of the utmost importance. It was, indeed, highly important evidence and the defence sought strenuously to keep it out This is not the first time that the question of admissibility of tape recordings as evidence has come before the courts of this country. In 1956, in a trial at Wiltshire Assizes Hilbery, J., admitted as evidence a tape-recording of a conversation in Salisbury Police Station and further admitted a transcript of the recording to assist the jury. We can see no difference in principle between a tape recording and a photograph. In saying that 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 recording can be proved and the voices recorded properly indentified; 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. In R. v. Robson [1972] (2) Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act. In Ziyauddin Burhanduuain Bukhari v. Brijmohan Ramdas Mehra Ors. [197] Suppl. S.C.R. 281, this Court approved the High Court relying upon the tape recorded reproduction of the successful candidates' speeches to voters for holding that he had appealed to them in the name of religion. Mr. Rao learned counsel for the respondent relied upon the following four decisions in regard to the proof required in cases where election or returned Candidates is alleged to be void on the ground of corrupt practice. In Chenna Reddy v. R.C.Rao E.L.R. 1972 Vol. 40 396, 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 trial the accused need not lead any evidence and ordinarily he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process. In regard to what constitute election offences Mr. Rao invited attention to the decision of Ramaswami, J. in Nagendra Mahto v. The State A.I.R. 1954 Patna, 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 to 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. On the other hand, Mr. Sibal invited attention to this Court's decision in Ram Dial v. Sant Lal Ors. [1949] Suppl. (2) S.C.R. 739, 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, Victoria. c 51 three learned Judges of this Court have observed: The words of the English statute, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent. P.Ws. 7 to 10 are official witnesses while P.Ws. 12, 14, 17 and 18 are private individuals. Similarly, R.W.. l to 4 are official witnesses while R.W.. 5, 6 and 22 are private individuals. Tara Chand (P.W.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 Bia, along with Amar Singh (P.W.17). His evidence is that he retired as polling agent after one hour and P.W. 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 gun point 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 (R.W.5), Desh Raj and Krishan Lal put the seals on the counterfoils and the thumb impressions on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Sikh companion thrust the sword at Mangal Singh (P.W.18). When Basti Ram also raised objection the respondent gave him a thrust with the butt of a rifle. P.W.17 and others who were in the polling station were pushed outside. m e police-men who were inside the polling station did not interfere. Some time later the people from Kalaka village and some police personnel arrived and thereupon the respondent and his companions left the place. P.W.17 and others detained two motor-cycles of the respondent's party and T caught hold of two of the fleeing persons and produced the motor cycles before P.W.7 who came there alongwith P.W.10. P.W.17 has denied in his cross- examination that Ajit Singh son of Rao Birendra Singh visited the Kalaka Polling station. He has denied the suggestion that he and other Congress (I) supporters beat Tula Ram and drove him out of the polling station and that he has given false evidence being a sympathiser of the Congress (I) party. Mangal Singh (P.W.18) of Kalaka has stated in his evidence that when he was in the polling station and his particulars were being checked before he could cast his vote the respondent armed w with a gun and accompanied by 3 or 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erintendent of Police arrived. After completing his report P.W. 8 got it signed by all the polling staff and handed it over to P.W. 7 and he recorded his statement. Ex.P-5 is the diary prepared by P.W. 8 in accordance with Instruction-74 of the Instructions to Polling Officers given by the Election Commission of India. P.W. 8 had deposited Ex.P-5 along with the other records in the Election Office. He has stated the Ex.P-5 was prepared by him and that it is correct. In his cross-examination he has stated that nee dose not know if the High School run by the Ahir Education Board where he was employed since 1972 does or does not belong to Rao Birendra Singh. He has denied that he and the members of his family had been supporting Rao Birendra Singh in the elections. he has admitted that he has not mentioned anything in column 20-E of Ex.P-5 relating to intimidation of voters and other persons except crossing it and has stated that it is because he was very much perturbed at that time. Reference will be made in detail later to the contents of the Presiding Officer's diary Ex.P-5 and the report of P.W. 8 to the police contained in Ex.P-6 on the basis of which FIR No. 103 of 1982 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect and that it bears his signature by way of authentication. He has admitted that there are some gaps in Ex.P-1 as the voices in the tape were not clear and audible. He has stated that the tape record remained in his custody throughout and was not tampered with either himself or by anyone else and that it contains the voices of the Presiding Officer (P.W.8), the polling officer Roop Chand (R.W.7) and the Police Constable, Mohinder Singh (R.W.3) whose number is 498. Reference will be made later to the contents of the tape-record and to the report Ex.P-2 submitted by P.W. 7 to the Government about the incident which took place on 19.5.1982 during the elections as it had come to his notice. In his cross-examination P.W. 7 has admitted that he could not now identify the persons whose voices were recorded in the tape and that the tape is Government property which had been issued to him by the Government and that the tape- recorder remained with him all the time and the tape- recorder and tape-record and the transcript Ex.P-1 had not been placed in the record room. It has to be noticed that the respondent (R.W. 22) has admitted in his evidence that though he had made several reports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifle 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 R.W.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 counter-foils and put them into the ballot box for about on hour and left the polling station thereafter. The respondent came to the polling station about one hour later and told the Presiding Officer (P.W.8) that he should not be partial to any party and he came to know that his polling agent had been beaten and that bogus votes had been polled in the polling station. Thereupon P.W. 8 assured the resondent that he would not permit anything of that sort to be repeated. About half an hour after the departure of the respondent from the polling station many people of Kalaka village gathered at the polling station and proclaimed that they would poll v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame in a crowd and entered the polling station and told the polling staff that they would poll votes forcibly in favour of Sumitra Devi. When the polling staff refused to act according to their desire they beat them and try to snatch the ballot box from R.W. 4. Meanwhile, Constable Mohinder Singh, (R.W. 3) came inside the polling station wrested the ballot box from the crowd and placed it at its original place. Soon thereafter a Sub- Inspector of Police and some other constables came and tried tc remove the crowd from the polling station. About half an hour later P.W. 10 came there and left the place after talking with P.W. 8. P.W. 7 came there about half an hour thereafter and directed P.W. 8 and the polling staff to conduct the polling properly and polling started again at about 12 noon. He had stated in his cross-examination that he did not make any report either to the police or to P.Ws. 7 and 10 though slaps and fist blows had been given to him by the miscreants but he asked P.W. 8 after PWs. 7 and 10 left the place as to whether he had reported about the maltreatment meted out to polling officers and he answered in the affirmative. He has stated that P.W.7 talked only to P.W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent's men was put to R.W. 3 and has been denied by him. The evidence of R.W. 4 is more or less the same as that of R.Ws. 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 P.W. 7 who arrived there about half an hour after P.W. 10 left the place after talking to P.W.8 the polling started again. He has admitted in his cross-examination that P.W. 8 had some conversation with P.Ws. 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 gun point and ran away along with his companions on the arrival of the police and the villagers. Ram Krishan (R.W. 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 t 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torn and appearing to have been beaten badly and told him that Ajit Singh accompanied by 50 or 60 persons entered the polling station and beat them and indulged in forcible polling and that he thereupon went by a car to Kalaka village alongwith R.W. 5 at about 9.15 or 9.30 a.m. On that day. Leaving his car at some k distance he walked to the polling station and found 50 or 60 villagers collected there and he entered the polling station protested to P.W. 8 and brought the complaint given to him by R.W. 5 and Tula Ram to his notice. After P:W. 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 copies to P.W. 7 and the election authorities and received a message from the police station at 10.30 a.m. that his complaint had been flashed to P.W.. 7 by wireless message and that appropriate action was expected to be taken soon. He has further stated that in his letter Ex. R. 7 dated 4.5.1982 he requested for the appointment of an observer because of official interference and had stated that P.W. 10 was married in that area and was inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to Kalaka polling station and indulged in forcible voting or that they beat R.W. 5 and his brother Tula Ram. The respondent has denied in his written statement that the process of polling got disrupted for over an hour at Kalaka polling station and that a number of voters had to refrain from casting their votes; but, as mentioned above it has been admitted by R.Ws. 1 to 4 that the polling was suspencial at Kalaka polling station on 19.5.1982 and that it re-started after the arrival of P.Ws. 7 and 10 at the polling station some time after the departure of the respondent and his companions. though the case of the respondent that there was forcible polling at the Kalaka polling station by Ajit Singh and his men cannot be accepted for want of any such plea in the written statement Mr. Sibal was justified in requesting the Court to accept the admission on the part of the respondent's witnesses that there was forcible polling at the Kalaka polling station in the morning of 19.5.1982 and that the polling got disrupted as a consequence thereof and that it was recommended after the arrival of P.Ws. 7 and 10 and to reject their evidence that Ajit Singh and his men were the cause. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defeated candidate Sumitra Devi through her brother Rao Birendra Singh. Nor is there any positive evidence to that effect on the side of the respondent. Therefore, it is not known on what basis the learned trial Judge has observed in his judgment that Ex.P-5 appears to have been made up by P.W. 8 under the pressure and influence of the defeated candidate Sumitra devi through her brother Rao Birendra Singh. In the absence of any material on record or even a suggestion to that effect to the Presiding Officer (P.W. 8) who has stated that he filled it up correctly and deposited it alongwith the other records in the election office it is not possible to agree with the view of the learned trial Judge that Ex.P-5 has been got up later by P.W. 8 under the pressure and influence of the defeated candidate Sumitra Devi through her brother Rao Birendra Singh. Ex.P-5, a contemporaneous document prepared by the Presiding Officer (P.W. 8) as required by Instruction 74 (supra) and deposited by him in the election office after the poll was over alongwith the other records is a very valuable piece of documentary evidence corroborating the oral evidence of the Presiding Officer (P.W. 8) and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent at Kalaka. The record further shows that the respondent also had applied for summoning the orders of Court disposing of FIR No. 103 of 1982 as also FIR No. 104 of 1982 to which reference will be made in the course of the discussion relating to the incident at Burthal Jat polling station. The respondent had also applied for summoning the Inspector of Police, Kedar Singh to appear with the relevant records showing the disposal of the above two FIR. But subsequently he filed CMP 31 (E) of 1983 for substituting and their person in the place of Inspector Kadar Singh and though that petition was opposed by the appellants the trial Court allowed the petition on the same day i.e. 21.2.1983 itself. The appellants also had filed CMP 41(E) of 1983 for summoning the file relating to those two FIRs from Sadar Rewari Police station. That application was dismissed by the learned Trial Judge on 25.2.1983. Thus it is seen that the appellants who had doubt not taken steps for summoning the original complaint given by P.W. 8 to the police at the Kalaka polling station in the first instance probably because the respondent himself had originally sought the production of the relative records from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n chief that a portion of the tape relating to the incident at Burthal Jat polling station has been erased inadvertently by his own voice. The learned trial Judge has rejected the tape-record (Ex.P.W. 7/1) holding (1) that it is tampered with later, disbelieving the evidence of the P.W. 7 that a portion of what he had recorded at the Burthal Jat polling station was erased by his own voice inadvertently on the some day and (2) that the authenticity of the transcript (Ex.P.1) has not been proved with definiteness. It is not reasonable to reject the tape merely because some portions thereof could not be made out on account of noise and interference not only outside but also inside the polling station when what was being elicited by P.W. 7 from the polling officers and the police-man (R.W. 3) was being H recorded. In R. v. Maqusud Ali (supra) tape recorded conversation of the two accused in a murder case has been held to be admissible in evidence for the purpose of proving the guilt of the accused and it has been observed that the tape- recording was a matter of the utmost importance and that it is indeed the highly important piece of evidence which the defence strenuously sought to ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elate to and explain the act they accompany, and not independent facts prior or subsequent where to (i); and (3) though admissible to explain, they are not always taken as proof of the truth of the matters stated, that is, as hearsay (m). P.W. 7 has stated in his evidence that the voice of P.W. 8 who was the Presiding Officer at kalaka polling station is recorded in the tape, that the tape contains also he conversation of the alternate Presiding Officer, Roop Chand (R.W. 1) and that the voice of the Constable Mohinder Singh (R.W. 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 (P.W. 7/1) after it had been recorded in a larger tape with the help of a re sophisticated instrument in this Court was prepared by this Court and some portions thereof has been admitted by R.W. 22 to be in his voice and he has recognised in the larger tape the voice of even P.W. 7 in some portions of the conversation which admittedly took place between him and P.W. 7 in the office of R.W. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that he cannot identify any voice other than those of himself and P.W. 7. Coming now to Ex. P-2, P.W. 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 4 police wireless that in Rewari Constituency the Congress (J) candidate had complained that about 50 to 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 wire less 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 officer to accept tendered votes from the electors if they came to the polling station for voting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent began to let in oral evidence on his side. Therefore, the explanation of R.W.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. R.W. 22 had stoutly denied in the trial Court that the tape record (Ex. P.W. 7/1) contained his voice but added that it is rather the voice of Rao Birendra Singh. But after the tape was 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, R.W. 22 has admitted some portions of his conversation with R.W. 7 in the office of P.W. 10 at about 7 or 7.30 a.m. On 19.5.1982. In the cross examination made in this Court after R.W. 22 had heard the re-recorded larger tape being played in the Court R.W. 22 has stated that he could not recognise the voice of any person in the tape other than those of himself and P.W. 7. If the tape used by P.W. 7 for recording the conversation could not be followed and understood clearly when it was played in the trial court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.30 a.m. or 12 noon, and indulged in the polling of bogus votes. P.W. 7 had stated in the course of his tape recorded conversation with the respondent in the office of P.W 10 at about 7 or 7.30 p.m. on 19.5.1982 that he visited Kalaka polling station soon after the respondent had left that place. R.W. 22 has admitted in his cross examination in this Court that the statement of P.W. 7 that he was there at about 12 noon or 12.05 p.m. refers to Kalaka polling station and that P.W. 7 told him that the Presiding Officer told him a different story about the incident which took place in that polling station. It is, therefore, clear that the respondent has attempted to make a futile effort to show that he visited the Kalaka polling station with R.W. 5 and others only at about 9 or 9.30 a.m. On 19.5.1982 and not at the time of the first part of the incident alleged by the appellants. The written statement is silent on the question whether the respondent visited Kalaka polling station on 19.5.1982 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the brother of his brother-in-law, Surinder Kumar as Surinder Kumar has 6 or 7 brothers. He has stated that he does not know whether Anil Kumar and Satbir Singh are the two persons who were arrested in Burthal Jat village on 19.5.1982 for offences under section 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 P.W. 7 in the office of P.W. 10 at 7 or 7.30 p.m. On 19.5.1982 or told P.W. 7 that they were his relatives. But in his cross examination in this Court he has admitted that Anil Kumar and Satbir Singh had been arrested by the police at the instance of P.W. 7 at the burthal Jat polling station on 19.5.1982 and that he had referred to them as his relations only because P.W. 7 had not taken any steps inspite of his repeated representation in regard to the arrest of those two persons. It is not possible to accept the evidence of R.W. 22 that because no steps were taken by P.W. 7 on his repeated requests for the release of Anil Kumar and Satbir Singh he told P.W. 7 that they were his close relatives, for he had admitted in his evidence in this Court that he would have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of P.W. 8 and the 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 first part of the incident in Kalaka polling station, namely that the respondent went armed with a rifle with 25 or 30 companions and entered the polling station with 4 or 5 armed companions and threatened the Presiding Officer (P.W. 8) and others including the polling agents who were present in the polling station with the use of force and got some ballot papers marked in favour of the respondent polled forcibly by his companions in the ballot box and that they left the polling station on seeing the villagers of Kalaka and police personnel coming towards the Kalaka polling station. There is no doubt that there is some discrepancy in the evidence regarding the time of the incident. But it is not a material discrepancy. I shall now consider the evidence relating to the second part of the incident at the Kalaka polling station. Mr. Sibbal did not press the case of the appellants regarding the second part of the incident at the Kalaka polling station in his principal argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with swords, rifles and lathis. Lambardar Ishwar (P.W. 16), Puran (P.W. 14), Ram Singh and others were standing in the queue at that time. The respondent threatened P.W. 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 P.W. 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. P.W. 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 alongwith others. The respondent came there armed with a gun, accompanied by 50 or 60 persons including Desh Raj, Krishan Lal, Balbir Singh, Ram Krishan (R.W. 5) and a Sikharmed with a kirpan.. The respondent's companions created a commotion and the respondent threatened P.W. 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 abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 R.W. 22 and his witnesses that R.W. 22 went to Kalaka polling station by a car with some of his men only at about 9 or 9.30 a.m. On 19.5.1982 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 P.W. 7 and he went there only thereafter. There is unimpeachable evidence on the side of the appellants to show that when the respondent went inside Kalaka polling station he was in a rage. In these circumstances, it is probable that while in such a mood after receipt of some report that his workers were beaten by Congress (I) workers he went there and asked his men whether they were not ashamed about 2 or 3 of their men of the same village having been beaten and that he thereafter indulged in the acts alleged in the election petition both outside and inside the polling station at Kalaka. P.W. 7 who reached Kalaka polling station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndidate for whom they were canvassing could not have been any other than the respondent. P.W. 26 has admitted in his cross-examination that Satbir Singh was known to him previously and that he (P.W. 26) was on duty inside the polling station. P.W. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was going 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 P.W. 30 when 2 or 3 persons armed with sticks were present with those two persons and he therefore returned to his house. He went to the polling 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 he 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 denied the suggestion that he had been a supporter of Rao Birendra Singh in all the elections and that he has given false evidence. P.W. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because he was the polling agent of Sumitra Devi. P.W. 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 P.W. 32. P.W. 33 and Lambardar Mam Chand (P.W. 35) and another Lambardar Ram Singh and others of Burthal Jat village separated P.W. 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 motorcycle which were taken into custody by the police. P.W. 32 informed P.Ws. 7 and 10 about what happened when they came there some time later. In his cross- examination he has denied that P.W. 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 P.W. 32 and has stated that he is Chowkidar of the village since 1982 and that P.W. 32 became Sarpanch of Burthal Jat village only recently. He has denied the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made a little later contains his signature and he has 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 he had made a false statement before PWs 7 and 10 and that he has given false evidence being a member of the opposite faction. 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 Burhtal 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 was some incidents outside the polling station though they were not sure about the identity of the persons responsible for the same. Some villages told PW 7 that Congress (J) workers had come in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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.P-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 and he ordered for the ballot papers being marked with the symbol of scales and put into ballot boxes and to finish off anybody who interferes and that the whole village was terrorised and they were thereby prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered by the police. Exs.P-27 and P-28 were tendered by the learned counsel who appeared for the respondent in the trial court. That calender contains allegations to the effect that the Assistant Sub-Inspector of police with the help of Kalyan Singh separated PW 32 from Anil Kumar and Satbir Singh and stopped the fighting, that the complaint of PW 32 was that when he was going to cast his vote two persons riding on a motor-cycle came there and asked him to vote in favour of the respondent, that when he told them that he would cast his vote for the candidate of his own choice they assaulted him with danda and gave him slaps, and that during the investigation the Assistant Sub-Inspector of police found that those two persons were present there for procuring votes for the respondent. It was not disputed by Mr. Rao in this Court that though the complaint on the basis of which FIR No. 104 of 1982 had been registered may not be admissible in evidence in the absence of any foundation for letting in secondary evidence FIR No. 104 of 1982 registered by PW 9 would be admissible in evidence. It shows that on the complaint to the effect that Anil Kumar and Satbir Singh were abusing and bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e two unknown persons and they were armed with sticks, that the respondent came there and left those 15 or 20 persons along with those two unknown persons and that those two unknown persons threatened many people as a result of which they could not cast their votes. RW 13 who went to Burthal Jat polling station at about 10.45 a.m. for casting his vote and cast his vote at that time claims to have stayed there along with some villagers until about 4 p.m. Though he has stated in a portion of his examination-in-chief that no incident took place with in or outside the polling station 80 long as he remained where he had admitted in his examination-in-chief itself that he saw PW 32 having a dispute with two unknown persons about 120 kadams away as also a jeep parked 80 kadams away from the polling station and that he heard people saying that the Superintend of Police removed these two unknown persons. No doubt, he has denied that Anil Kumar and Satbir Singh were threatening the electors in the village and that he has given false evidence on account of pressure from the respondent. RW 14 who cast his vote at Burthal Jat polling station at 7.30 a.m. claims to have thereafter set under a tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter for recording at a particular point it is probable that what had been recorded earlier gets erased by the time the mistake in operating A the knob is noticed. Therefore, there is no reason to reject the evidence of P.W.7 that a portion of the tape-recorded conversation in Burthal Jat polling station got erased by his own voice due to inadvertence. 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, R.W. 12 has admitted that P.W. 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 P.W. 32 and others were having an altercation. Even R.W. 13 has stated that P.W. 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 tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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. The State (supra) where it has been held, as stated earlier, that the L) criminal revision petitioner before the High Court who had 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 attempted to put some ballot papers into the box of one Nitai Singh Sardar was rightly convicted under section 131 (1) (b) and section 136 (L) (f) of the Act. On the other hand, Mr. Sibbal submitted that casting bogus votes forcibly would amount to corn pt practice as it would indirectly interfere with the electoral right of the voters whose ballot papers have been so polled, whether they had intended to come to the polling station and exercise their right to vote or had intended otherwise. In this connection, he invited this Court's attention the decision in Ram Dial v. Sant Lal and Others (supra) where, as extr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or the official mark of any ballot paper or any declaration of identity or official envelope used in connection with voting by postal ballot; supply of any ballot paper to any person or being in possession of any ballot paper without due authority, fraudulently putting into any ballot box anything other than the ballot paper which the person putting the same is authorised to put in; destroying, opening or otherwise interfering with any ballot paper; and fradulently or without due authority attempting to do any of the foregoing acts or wilfully aiding and abetting the doing of any such acts. It would appear that forcible marking of ballot papers removed from polling officers in the polling station, marking the same in favour of any candidate and putting the them in the ballot box is not one of the offences mentioned in them. Therefore, as rightly submitted by Mr. Sibbal it cannot be contended that in this country forcible polling of bogus votes, as mentioned above, is neither a corrupt practice nor an electoral offence. I agree with Mr. Sibbal and hold that forcible polling of bogus votes in the circumstances and manner found in this case would constitute indirect interference wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses though they would have been material witnesses in regard to the incident at the Burthal Jat polling station. The respondent's evidence as R.W. 22 has been found to be wholly unreliable for reasons already mentioned. In these circumstances what my learned brother Fazal Ali, J. has mentioned in the first para of his judgment barring the first sentence in that para would apply to the respondent alone. An election petition seeking a declaration that the election of the returned candidate is void under section 100 (1)(b) on account of corrupt practice as per section 132(2) of the Act, as in the present case, is a civil proceeding though the standard or degree of proof required is as in a criminal case. In any case, two views are not possible in the present case where the appellants have proved beyond all reasonable doubt that the respondent has committed the corrupt practices alleged in at the Kalaka and Burthal Jat polling stations. No lenient view can be taken in this case merely because the election petition is directed against the returned candidate for, only in the case of a returned candidate Parliament has provided, in the interest of purity in elections, for serious co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee in this connection the observations in American Jurisprudence Vol. 30 page 939. In the case of R. v. Maqsud Ali, [1965] 2 All E.R. page 464 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 car, 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 is no objection to a copy of the transcript of a tape recording, properly proved, being put before them. lt 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... videntiary value claimed for these. It was held by the Court as follows:- The recordings were admissible for the following reasons- (1) the Court was required to do no more than satisfy itself that a prima facie case of originality 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 8, post). 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. This Court had also considered this question in Shri N.Sri Rama Reddy Etc v. Shri V.V. Giri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. m e 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 evidence to prove his denial; it becomes the duty of the Court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal, a reasonable person can form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emeanour 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 view of the judge who hag 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 Ora. AIR 1975 SC page 1178 see also the observations of this Court in Raghuvir Singh v. Raghubir Singh Kushwaha. AIR 1970 S.C. page 442. In view of the nature of the evidence on record, we find no reason to disagree with the appraisement of the evidence by the learned trial judge. Last point indicated above is interesting as was sought to be raised by Mr. Sibbal, because preventing a person from casting his vote or causing a bogus vote purpoting to be a vote of some one 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 be pursued further. For the reasons me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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