Holding

The appeal is dismissed because the petitioners failed to prove corrupt practice beyond reasonable doubt and the tape‑recorded evidence is inadmissible.

Summary

The Supreme Court examined an election petition challenging the election of Col. Ram Singh on allegations of corrupt practice, including booth‑capturing and intimidation at two polling stations in the 1982 Haryana Assembly election. The petitioners relied heavily on oral testimony and tape‑recorded statements taken by the Deputy Commissioner, but the Court found the recordings plagued by poor audibility, gaps, lack of voice identification, and improper custody, rendering them inadmissible. Applying the criminal standard of proof required for corrupt‑practice claims under the Representation of the People Act, the Court held that the petitioners failed to prove the allegations beyond reasonable doubt. The Court also reiterated the stringent safeguards needed for admissibility of tape‑recorded evidence under the Indian Evidence Act. Consequently, the appeal was dismissed and the election of the respondent upheld.

Issues considered

Whether the alleged acts at Kalaka and Burthal Jat polling stations constitute corrupt practice (undue influence) under the Representation of the People Act, 1951.
Whether the tape‑recorded statements made by the Deputy Commissioner are admissible as evidence under the Indian Evidence Act.
Whether the standard of proof for corrupt practice in an election petition is the same as that in a criminal trial.
Whether the lack of specific, detailed allegations in the petition affects its validity.
Whether the identification of voices and custody of the tape recordings satisfy evidentiary requirements.

Legislation cited

Code of Civil Procedure, 1908s. Order 8 Rule 1, s. Rule 3, s. Rule 5
Indian Evidence Act, 1872s. 3, s. 7, s. 8
Representation of the People Act, 1951s. 100(1)(b), s. 116A, s. 116C, s. 123(2), s. 81(3), s. 87, s. 8-A

Subjects

election petitioncorrupt practiceundue influencebooth capturingtape‑recorded evidenceadmissibilityRepresentation of the People ActIndian Evidence Actstandard of proofres gestae

Judgment

399

RAM SINGH & ORS •. A
v.
COL. RAM SINGH

AUGUST 7, 1985

[S· 1'1\JRTAZA FAZAL ALI, A. VARADARAJAN AND SABYASACHI HUKHARJI JJ.j B

Representation of the People Act 1951: Corrupt Practice -
How should be·proved.

Evidence Act - Tape recorded statement3 - When could be
.used as evidence - Safeguards to be taken in using tape recorded C
evider..ce.

In the general election to the State Assembly held in 1982
the appellants a.pd the respondents were the candidate•.- The
respondent was declared elected to the Assembly. In their
election petition, the appellants alleged that the respondent was D
guilty of corrupt practice and booth capturing in that he went to
two polling booths alongwith 50 to 60 persons, armed with guns,
sticks and swords, threatened and pressurised the voters and as a
result of the serious threats held out by the respondent and his
men the voters ran away without exercising their franchise; that
the respondent and his companfons entered the. polling booths and
terrorised the Polling Officer and polling agents•. assaulted the E
polling agents at gun point, snatched away the ballot papers and
marking them in the respondent's favour, cast the votes in the
ballot boxes and thumb marked the counter foil of ballot papers.
They sought a declaration that the respondents election was void
under section 100 of the Representation of the People Act 1951. A
large number of witnesses were examined by both sides. The Deputy F
Comnissioner who was the Returning Officer of the constituency
recorded on a tape recorder the statements of some persons
iucluding the polling agents, the Polling Officer and the
respo~ent and of himself.

The High Court held that the evidence of the witnesses and G
the petitioners on these points was not corroborated, no effort
was made by the petitioners to connect the respondent with the
ownership of vehicles purported to have been used by him, that
the witnesses were drawing more upon their imagination to make
out stories about the detention of the persons and forcible
polling at that polling station by the respondent and that the P
400 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

petitioners failed to prove the charge beyond reasonable doubt.
A The court also held that the role assigned to the respondent by
the petitioners has not been proved.

Dismissing the appeal

HEW: [Per Fazal Ali J, Sabyasachi Mukharji J concurring
B and Varadarajan J dissenting] The appellants have failed to prove
their case that the respondent was guilty of indulging in corrupt
practices. [446 Fj

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.
c The petitioners should have given definitive and specific
allegations regarding the nature of fraud or the corrupt
practices conmitted by the respondent as briefly as possible in
the main part of the petition. [407 E-F]

· The appellants have not established that the respondent was
present at the time of the incidents at the two booths. Once this
D is not proved, the appellants have failed. It is settled law that
corrupt practices must be cOC!'litted by the candidate or his
polling agent or by others with the implicit or explicit consent
of the candidate or his polling agent. Where the supporters of
the candidate indulged in corrupt practices on their own, without
the authority from the candidate the election cannot be voided,
E and this factor is conspicuously absent in this case. It is
also settled law that the charge of corrupt practice has to be
proved by convincing evidence and not merely by preponderance of
probabilities. As the charge of 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 and the manner of proof
F should be the same as in a criminal case. [445 F-H]

As regards the evidence recorded on a tape Recor,per or
other mechanical process the preponderance of authorities is in
favour of the admissibility of the statements subject to certain
safeguards viz., (l) the voice of the speaker must be identified
G by the maker of the record or by others who recognise his voice.
· Where the voice is denied by the maker it will require very
strict proof to determine whether or not it was really the voice
of the speaker. (414 EJ

(2) The voice of the speaker should be audible and not
H distorted by other sounds or disturbances. [414 E]
RAM SlNbH v. COL. RAM SINGH 401

(3) The accuracy of the tape recorded stat~nt has to be
A
proved by the maker of the record by s~tisfactory evidence.[414 F]

( 4) Every possibility of tampering with or erasure of a
part of the tape recorded statement must be ruled out; [414 G]

(5) The statement 1D11St. be relevant according to the rules
B
of evidence and [414 H]

(6) The recorded cassette must be carefully sealed and
kept in safe custody. [415 A]

R. v. llaqsud All [1975] 2 All E.R. 464 and R. v. llobeon
[1972] 2 All E.R. 699, referred to.
c

In the instant case, the voices recorded at a number of
places are not very clear and there is noise while the statements
were being recorded by the Deputy Colllnissioner. A gOod part of
the statement recorded on the cassette has been denied not only
D
by the respondent but also the respondent's witnesses. No other
witness has come forward to depose identification of the voice of
the respondent or of witnesses. [444 E]

There are erasures here and there in the tape and besides
the voices recorded being not very clear, it is hazardous to base
a decision on such evidence. The Deputy Commissioner recorded
th'll statements in violation of the instructions of the.Government E
and erred in not placing the recorded cassette in proper custody.
He kept it with himself without authority and therefore the
possibility of tampering with the statements cannot be ruled out.
The transcript was prepared in his office by his stenographer and
when the transcript was being prepared the Deputy Commissioner
himself was absent from his office. The possibility of its being F
tampered with by his stenographer or somebody else cannot be
ruled out. Respondent's witnesses have denied the identity of
their voices. The recording was done in a haphazard and unsyste-
matic manner. A conspectus of the evidence of the witnesses shows
that the evidence adduced by the respondent in the court is 1D11ch
superior in quality than that adduced by the appellants. The High G
Court was right in holding that the petitioners had failed to
prove the allegations of corrupt practice or booth capturing
beyond reasonable doubt. [441 E, 442 H-443 E]

Sabyasachi l!ukbarji,J. concurring: While accepting the tape
recorded sta~ements the court should proceed cautiously. The H
402 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A evidence should be examiued on the analogy of mutilated
documents. If the tape recording is not coherent or distinct
or clear it should not be relied upon. [502 B,D-E]

R. v. Maqsud Ali [1975] 2 All E.R. 464 and R. v. Bobson.
[1972] 2 All E.R. 699, referred to.
B
In the instant case, the tape recording was misleading and
could not be relied on because in most places it was unintelli-
gible and of poor quality. Therefore, its potential prejudicial
effect outweigh,9 the evidentiary value of .the recording. [5C4 CJ

Shri N. Sri llama Reddy etc. v. Shri V.V. Giri [1971]1
c s.c.R. 399 and R.H. l!alkant v. State of l!aharashtra [1973] 2
S.C.R. 417, H.Cbenoa ReddY v. V.Rem•cbaodra Rao & Aor. [1972]
E.L.R. Vol. 40, 390; Ram Sharan Yadav v. Thakur Muneshwar Nath
Singh & Ors. [1984] 4 s.c.c. 649; C.A.No. 3419/81 decided on
29.11.84, referred to.

It is settled law that the charge of corrupt practice is in
D the nature of a criminal charge which if proved entails a heaVY
penalty in the form of disqualifica.tion and that a more cautious
approach must be made in order to prove the charge of undue
influence levelled by the defeated candidate. In the instant
case, it canoot be said that the appellants had proved their case
to the extent required to succeed. [506 DJ
E
Where the question is whether the oral testimony should be
believed · "r not the views of the trial judge should not be
lightly brushed aside, because the trial judge has the advantage
of judging the manner and demeanour of the witness which
advantage the Appellate Court does not enjoy. In view of the
F .:iature of the evidence on record there is no reason to disagree
with the appraisal of the evidence by the trial judge. [506 G]

• lloti Lal v. Qumdra Pratap 'Iivari & Ors. A.I.R. 1975 s.c.
1178 and llagbuvir Singh v. Raglmbir Singb Kuslnraha A.J.R,
1970 s.c. 442, referred to.
G
Varadarajan J. dissenting : It is clear from decided cases that
tape recorded evidence is admissible provided the originality and
the authenticity of the tape are free from doubt. In the instant
case, there is no valid reason to doubt them. It is not
reasonable to reject the tape merely because some portions thereof
H
RAM SINGH v. COL. RAM SINGH 403

could not be made out on account of noise and interference not
only outside but also inside the Polling Station. On the contrary A
under the circWDStances of this case great relevance has to be
placed on the tape and its contents not only for corroborating
the evidence of the District Comnissioner and the Presiding
Officer to the extent they go but alco as ~ gestae_ evidenee of
the first part of the incident. The Trial Judge waa not justified
in rejecting the tape record and transcription. The appellants B
have proved satisfactorily and beyond reasonable doubt the firs~
part of the incident in one of the Polling Stations, 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 and others who were present
there with the use of force and got some ballot papers marked in C
favour of the respondent polled forcibly by his companions in the
ballot box and that they left the Polling Station on seeing the
villagers and the police coming towards the Polling Station. The
discrepency in evidenc_e regarding the time of the incident is not
material. [478 A-C, 483 E-484 A]
D
Secondly, the Deputy Comnissioner recorded the conversstion
which he had with the presiding Officer but some portion thereof
waa erased by his own voice by inadvertance. After recording, his
stenographer prepared the transcript in his office most of it
under his supervision and though he was temporarily absent to
attend to some other work he compared it with the original tape
and found it to be correct. The tape, the tape recorder and the E
transcript remained with him throughout and were not deposited by
him in the record room and there was no possibility of tampering.
[496 F-497 A]

The respondent bad managed to keep away from the court
material evidence by way of the original report of the Presiding F
Officer. He had cited a person as his witness to depose about
his case but did not examine him for that purpose and had called
him only for the purpose of production of some record, without
·any oath being administered to him. l!e had denied to the
appellants the opportunity to cross-examine that witness. The
respondent had come forward with a new case of alleged booth G
capturing .and forcible polling of bogus votes after the
appellants had completed the examination of their'witnesses
to whom no such suggestion was made in the cross-examination.
From the evidence on record two views are not .possible. The
appellants have proved beyond reasonable doubt that the respon-
dent had cOlllllitted the corrupt practices alleged against him. No H
lenient view can be taken in this case merely because the
election petition is directed against the returned candidate.
[499 G-500 BJ
404 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A CIVlL APPELLATE JURISDICTION: Civil Appeal No. 6623 of 1983.

From the Judgment and Order dated 3.6.1983 of the Punjab &
Haryana High Court in E.P. 13/82.

Kapil Sibal, Gopi .Chand, K.C. Sharma, R. Karanjawala, Mrs.
B M. Karanjawala, Miss Neethu & Mrs. Madhu Tewatia for the
Appellants.

K.G. Bhagat, Additional Solicitor General, R.Venkataramani,
Ranbir Singh Yadav, P. S. Pradhan, Chandra Shekhar Panda and A.
Mariaroutham for the Respondent.

c The following Judgments were delivered:

FAZAL ALI, J. 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
D 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 grab 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
E 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 so that the deepest
possible probe is made to get at the real truth out of a heap of
F 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 advoca'cy of the counsel tor the parties does
play a very important role in unveiling the truth and in
G 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
H
RAM SINGH v. COL. RAM SINGH (FAZAL ALI, J. J 405

election of the winning candidate should uphold his election A
giving hini benefit of the doubt. This is more so where
allegations of fraud or undue influence are made.

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

It is not necessary for us to dwell 9n or narrate the facts
of the case of the parties which have detailed by the High Court
in very clear arid unambiguous terms. To repeat the same all over
again might frustrate the very object of deciding election c
petitions with utmost expedition. Even so, it may be necessary
for us to give a bird's ~ye view and a grotesque picture of the
impol'tant and dominant elements of the controversy between the
parties in order to understand which of the two cases presented
before us is true.
D
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 E
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. F

d. important points of law arising out of the argu-
ments presented before us; and

e. authorities of this Court or other courts ·cited
before us. G

For the purpose uf understanding the truth and the spirit of
the matter a scientific dichotomy of the case has to be made
which may include the following 'factor:

a. Time and manner of voting, H
40b SUPl\EME COURT REPORTS [1985] SUPP.2 s.c.R.

A b. allegation of booth capturing,

c. role played by the electoral authorities lt'ho m.q_y
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
B 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
C the successful candidate, the court shoula be doubly
sure that it is not lured to fall in the labyrfoth of
chaos and confusion by easily holding that the corrupt
practice alleged has been proved.

With this short prelude, we would now proceed to give an
exhaustive glimpse of the contentions raised before us by the
D parties. l>efore, 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
argwnents 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
E 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. ln view of the concession made by the counsel for the
F parties, we are concerned in this appeal only with two polling
booths, viz., Kalak.a and Burthal Jat. It appears that there wer~
as many as five candidates and Col. Ram Singh [respondentj seems
to have been pitted against the aforesaid candidates.

The bedrock of the allegations made by the appellants
G 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 appella.~ts, the
H respondent had·, was lust for power. It may be pertinent to note

'•
l<AM SINGH v. COL. RAH SINGH iFAZAL AU, J.j· 4U7

here that the respondent had also alleged- that Rao .Birendra A
Singh, who, according to him, was the evil genius of the whole
show, had set up his sister , SUIIi.itra bai, to contest the e~ection
1
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 foreigri to the scope of the present ·appeals
nor ar~ these matters of which any serious notice can be taken B
because as Shakespeare has said "everything is fair in war and
love" and the respondent could not be presumed to be as virtuous
as Ceasar's wife so as to be completely above board. So, we
cannot blame the respondent if he changed sides to suit the
temper of the times. At any ·rate, this allegation has no
relevance to the setting aside of the election of the successful c
candidate. The law does not recognise either political morality
or personal loyalties so long as the candidate allows a fair game
to be played without destroying the sanctity of the electoral
process by indalging in undue influence or corrupt practices
which nrust be proved satisfactoriiy beyond reasonable doubt.
D
So far so good. A conspicuous fact may however be noticed
here, viz., tha_t clear and s'pecific 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 allegation however, have been
detailed in the statement . of particular submitted by the
appellants, who were certainly entitled to do so but we should E
have expected some definitive and specific ~!legations regarding
the nature of the fraud Or the cornipt practices conmitted 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 F
practice lies entirely on the election petitioner who must
demonstrably prove the same.

And now a pointed peep into the salient features of the.
facts of the case •.To begin with, the argwnents of the appellants
are confined only to the Kalaka and Burthal Jat polling booths • G
.Before we proceed further we might at this stage bri"ef ly
indica~e, 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. H
408 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A As regards Kalaka, (1) it was alleged that the respondent
appeared at the scene at aboct 10.30 a.m. with 50-60 persons and
was himself armed with a gun while. his companions had guns,
eticks and swords. Hy sheer show of force, the voters were
threatened and pre~surised :is a result of which they ran away
without exercising their votes. In other words, the allegation is
B that as a result of the serious threat held out by the
respondent, the voters were deprived of t.heir valuable right of
frenchise.

(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
C assaulted by the respondent by the bu~t end of the barrel of his
gun.

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

D (4) The respondent and his ·companions at his (respondent)
instance thwnbmarked tte counterfoils of the ballot papers also.

As regards Burtbal booth, (1) the appellants alleged that
almost the same modus operandi was adopte.d by the respondent and
he directed his supporters to prevent the voters frore entering
E the booth, thereby depriving them of the opportunlty of
exercising their right to vote.

(2) Not content with this, the respondentleft behind his
relations Anil Kumar and Satbir Singh to carry on the aforesaid
activities and gave further instructions that the maximum .number
F of. votes should .be polled in his favour.

Thus, so far as Kalaka and tlurthal polling booths are
concerned, twu important corrupt practices have been alleged by
the appellants:-
(

G (1) forcible polling of votes and

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

It manifestly follows that once it is proved that the
H respondent was not present at the time of the incidents at Kalaka
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J. j ';09

A
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 cornmltted by the
candidate or his polling agent or by others with the implicit or
explicit c.onsent of the candidate or his polling agent. Where,
however, the supporters or a candidate indulge in a corrupt
B
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.
c
Before, however, analysing and marshalling the evidenc-e we
would like to refer to the authc.rities 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
D
admissibility of t'ne evidence of the tape recorded statements
alleged to have been made by some of the w.itnesses in the
taperecofder recorded by ?.W. 7, the Deputy Commissioner.

As regards the principles enunciat~d by this Court regarding
the nature and the standard of proof of corrupt practice alleged
by .an election petitioner against the successful candidate,
E
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 .!Ddy be briefly
stated.

To begin with, as far back as 1959 in Ram Dial v. Sant Lal
F
& Ors., [1959J 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
a.re calculated to interfere with the free exercise of
any electoral rlght. Decisions of the English Courts,
G
based on the words of the English Statute, which are
not strictly in ~ ~t'=ria 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.
H
etc •• , [1969] 3 s.c.R. 603, this Court while dwelling on the
principles to be followed in election cases pithily point out
thus:
410 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A "The principle of law is settled that consent may be
inferred from circumstantial evidence but the circtuD-
stances 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 Proce<iure, it has been laid
B 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 exclede every
hypothesis except that of guilt on the part of the
returned candidate ·Or his election agent."

- ln Ch. Razik Ram v. Ch. Jaswant Singh Chauhan & Ors. [1975 j
C 4 s.c.c. 769, this Court laid down _the following principles:

"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
D comi:nission 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
E stamp of quaSi-crim.inal action, the standard of proof
is the same. as in a criminal trial.

Secondly, even if the nature of the trial of an elec-
tion petition is not the same in all respects as that
of a criminal trial, the burden of proving each and
F 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 qf its p·roof but does Ilot relieve the peti-
tioner of his primary burden."
G
In Balwan Singh v. Prakash Chand & Ors. [1976] 3 s.c.R. 335,
Shinghal,J. made the following observations:

"Another argument of Mr. Bindra was that the corrupt
practice in question should not have been found to
H
RAM SINGH'v. COL. RAM SINGH [FAZAJ, ALI, J.j 411

have been committed as the election petitioners did
not examine themselves during the course of .the trial A
in the High Court. There was however no such obliga-
tion on them, and the evidence which the e.lection
petitioner_s 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 peti -
tioners were able to give useful evidence to their B
personal knowledge but stayed away purposely."

In· the case of Sultan Salalmddin Clwasi v. Mohd. Osman
Shaheed & Ors. [1980j J s.c.c. 281 to which one of us (Fazal
Ali, J.) was a pa~ty,_ this Court observed thus:-
c
"It ; s now well settled by a large catena of the
authorities of this Court that a charge of courrupt
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."
D
In Ram Sharan Yadav v. Thakur Hunesbwar Nath Singh & Ors.
[l984j 4 s.c.c. 649, to which two of us were parties, this Court
observed thus:

"The sum and substance of these decisions is thB.t a
charge of corrupt practice has to be proved by convin-
cing evidence and not merely by preponderance of E
probabilitie~. 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 F
proved to the satisfaction of· a court that a canrlidate
has been guilty of 1 ur,due in£ luence 1 then he is likely
to be disqualified for a period of six years or such
other period dS the authority concerned under Section
8-A of the Act may· think fit.
c
Hy and ~arge, the Court in such cases while appreciat-
ing or analysing the evidence must be guided -by the
following considerations:

(1) the nature, character, respectability and credi-
bility of the evidence·, H
412 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A (2) the surrounding circumstances and the improbabili-
ties 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,
B 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."

C This, therefore, concludes the question regarding the stan-
dard of proof.

As heavy reliance was placed by the appellants on Ex.P-1
(the tape-recorded statements of RWs 1 to 3) as also the state-
ments recorded in the same tape-recorder by rW 7 which included
the statement of the respondent, in order to allay all doubts and
D 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 made at a later part of our judgment. But before
that we would like to settle the controversy between counsel for
E the parties as to the extent of admissibility of evidence recor-
ded on tape-recorder or other mechanical process.

It seems to us that the matter have is not free from
difficulty but the preponderance of authorities - Indian and
foreign - are in favour of admissibility of the statement provi-
F ded certain conditions and safeguard 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.

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
G Yusufalli Eemail Nagree v. State of Maharashtra [1967] 3 s.c.R.
720, 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 DIJSt be
H prowd by a competent witness and the voices 11111St be
Rk'l SINGH v. COL. RAM SlNGH [FAZAL ALI, J.] 413

A
properly Jdentified. One of the features of magnetic
tape recording is the a bill ty to erase and re-use t.he
recording mediw. 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.
B

The tape was not sealed and was kept io the custody of
Mahajan. The absence of sealing oal:urally gives rise
to the argunent that the recording mediUll might have
been tampered with before i t was replayed." c
,
(Empha5is ours)·

In the case of N•. Sri Rama lleddy,£tc. v. V.V.Giri [1971] 1
s.c.R. 399, the following observations were made:
D
"Having due regard to the decisions referred to abo.ve,
it is clear that a prev.ious 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." E

In R.H. llalkani v. State of Maharashtra [1973] 2 s.c.R. 417,
this Court laid down the essential conditions which, if fulfiled
or satisfied, would .make a tape-recorded statement admissible
otherwise not; and observed t.hus:
F
"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 con-
'versation is proved by elimfoatiog the possibility of
erasing the tapa record." G
(Emphasis supplied)

In Ziyauddin Burharuiddfo Bukhari v. Bri}llDhan Rmwtass Kebra
u Ors., [1975] Supp. S.C.R. 281, Beg,J. (as he then was) made the
following observations:
H
"We think that the High Court was quite right in hold-
ing that the tape records of speeches were
414 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A "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 satisfyir.g the following conditions:

(a) The voice of the person alleged to be speaking
B 111JSt be duly identified by the maker of the record or
!"
by others who knew it.

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

(c) The subject matter recorded had to be shown to be
relevant according to rules of relevancy found ln the
Evidence Act."
(Emphasis ours)

D Thus, so far as this Court is concerned the conditions for
admissibility of a tape recorci.ed statement m..-'ly be stated as
follows:

1) The voice of the speaker mu•t be duly identified by
the maker of the record or by others who recognise his
E voice. In other words, it manifestly follows as a
logical corollary that the arst condition for the
admissibility of such a statement is to identify the
voice of the speaker. Wl1ere the vo::.ce has been denied
by the maker it will req':lire very strick proof to
determine whether or not it was really the volce of
F the speaker.

7.) The accuracy of the tape recorded statement has to
be proved by the maker of the record by satisfactory
evidence - direct or circl.llllStantial.

G 3) Every possibility of tampering with or erasure of a
part of a tape recorded stat'=ment must be. ruled out
otherwise it may render the said statement out of con-
text and, therefore, inadmissible..

4) The statement must be relevant according to the
l! rules of Evidence Act.
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.] 415
A

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 distur- B
bances.

The view taken by this court on the question of admissi-
bility of tape recorded evidence finds full support from both
English and American authorities. In R. v. Haqeud 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 D
to be gained by new techniques and new devices, provi-
ded 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 E
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 F
by Marshall, J., who was one of the celebrate Judges of the court
of Criminal Appeal. To the same effect is another decision of the
same court in R. v. Robson [1972] 2 All E.R. 699, where Shaw, J.,
delivering a judgment of the Central Criminal COurt observed
thus: ·
G
"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.
H
416 SUPREME COURT REPORTS [1985] SUPP..2. s.c.R.

A During the course of the evidence and argllment on the
issue of admissibility the recordings were ;>layed
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 conversation which
B were recorded and that with an appropriate warning the
jury would not be led into and 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."
c
rn· Amercian Jurisprudence 2nd (Vol.29) the learned author on
a conspectus of the authorities referred to in the footnote in
regard to the admissibility of tape recorded statements·at page
494 observes thus:

"The cases are in general agreement as. to what
D cons.titutes a proper foundation for the iidmission 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:

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

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

F (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
G
recording;

(6) identification of the speakers; and

(7) a showing that the testimony elicited was
voluntarily made without any kind of inducement.
H
--
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.] 417

•••• However, the recording may A
is so inaudible and indistinct
speclliate as E£. what was said>'
(Emphasis ours)

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

This . now brings us to a stmnnary 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 D
election relating to Kalaka and Butthal Jat polll.ng booths.

By virtue of· a notification dated 17 .4.82 the Governor of
Haryana .called upon the voters to elect Members to the Vidhan
Sabtia. 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, lea·vin.g five persons in the
field. Smt. Sumitra Devi ~as a nominee of the Congress (I) party F
and the respondent filed his nomination· papers initially as an
Independent candidate but later on joined Congress (J) party. The
re"sp9ndent 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. On being elected to the Vidhan
Sabha he become its Speaker as he enjoyed the· .confidence of the G
then Chief Minister, Ch. Devi Lal. As it happened, in the 1980
Parliamentary elections the Congress (I) party swept the polls
and Shri llhajan Lal;, having left the Janata Party,joined the
Congress (I) party along With many of his suppor~ers, including
the respondent. Eut, we are concerned only with the 1982 Assembly
elections to the Haryana Vidhan Sa"bha in which t_he main H
candidates were Smt. Sumitra Devi and the respondent.
418 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A KALKA POLLING BOOTH

Ille would first take up the allegations levelled by the
appellants against the respondent regarding the corrupt practices
relating to the Kalaka pollinS booth. According to the evidence
of R.w.1, the polling started at 7,30 a.m. and went off peace-
B fully without any untoward incident till 10.30 a.m. Near About
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 distur~ce in the polling
and to prevent the votes frqm 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
c 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 uot allowed to do its duty which resulted
in the voting coming to a stand still. At this, one Mangsl Singh
raised serious protest and on the orders of the respondent he was
D
assaulted. lshwar (Lambardar) was also hit by the but tend of the
gun and despite the objections of Basti Ram he was also assaul-
ted. The policemen were heavily outmDDbered and had to stand as
silent spectator to the whole show. Further details of the acts
of Olllllission'and cOlllilission cOlllilitted by the respondent have been
given in the judgment of the High Codrt as also on pages 10-12 of
1!
Vol. Ill of the Paperbooks. It is also alleged that the respon-
dent with the aid of his companions snatched as maoy 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 owo version of the incident on the basis of
F which FIR was registered on 19.5.82 itself. P.w. 7, Mr. N. Bala-
bhaskar, the Deputy Conmissioner 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.
G
These in short, are the allegations of the appellants
against the re~pondent 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 the allegations have been
proved. To begin with, P.Ws. 7, 8, 12 to 18 deposed in favour of
H
the appellants in respect of this polling booth. In order to
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J. J 419

rebut the evidence led on behalf of the appellants , the A
respondent produced Roop Chand (R.W.l), Deen Dayal (R.W.2),
constable Mohinder Singh (R.W.3), Ohani Ram (R.W.4), Ram Kishan
(R.W.5) and Suresh (R.W.6) besides respondent himself (R.w. 22).

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

We would like to discuas the evidence of the Respondent
witnesses by wsy of a comparative assessment in relation to the·
evidence led by the appellants so that a true picture of the c
cases of the parties may come out con8picuoualy which would throw
a flood of light on the ·credibility of the witnesses concerned.

We shall now show that the statement of R.W. l seems to
find intrinsic support from the star witness of the appellants,
viz., p.w. 7, the Deputy Commissioner. P.w. 7 is a high officer D
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 11n1ch to be desired. Without
going into further details we might mention that his a~tion in
recording the statement of the witnesses on a tape recorder
without taking the necessary precautions and safeguards cannot be
E
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 P.W. 7
wss 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 F
the same and taken the signatures of the deponent a certificate
"'Read over and accepted correct." If this was done nobody could
doubt the authenticity of such statements. P.w. 7 admits his
~tatement that he was not authorised or asked by any higher
officer than h1m to record the statement at the spot in a tape
recorder which obviously he did at his own risk. Furthermore, G
even if he had ·recorded the statements on a tape-recorder he
ought not to have kept the cassette in his own custody but should
have deposited it in the Record Room according to rules. By keep-
ing 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
420 SUPREME COURT REPORTS (1~85] SUPP.2 s.c.R.

A recorder was that he had to take further care and precaution i:o
see that the voice of the person whose statement was recorded
sboul4 be fully identified. Here again, he seems to have fallen
into a11 error resulting in a very anomalous position as SO!lle of
the i;.l tnesses particularly those appearing for the respondent,
have.clearly denied their voices in the cassette and refused to
a ident~fy the same. Others have partly admitted and partly denied
·their voices alleged to be those of the witnesses for the respcn-
dent, fi1iaHy, 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
c by them as also by himself. In a sanctimonious matter like this,
it is extremely perilous to take a risk of this kind· Perhaps it
may \le said that by recording the statements on a tape recorder
he save time as he had to go to the other polling booths also.
That, however, does not solve the problem because even if the
statem.@nts were recorded on a tape recorder they had to be trans-
cribed and by the time the statements were ready the witnesses
D would not be available to append their signatures. Moreover, the.
direct method of recording the statement by dictating the same
to the stenographer would have been as expeditious as recording
on a tape recorder and transcribing the same thereafter. We.might
mention here that the recorded cassette ·was replayed in this
Court and then transcribed and only the re1evant statements of
E the respondent took quite a few ·hours, Thus, by his negligence he
allowed the recorded statements to suffer from a mainfest defect.

That there were some erasures and lot of other voices has
been admitted l>y "p.w •. 7 himself in his statement where he stated
thus:~

F
''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
G
voices have been recorded in the tape.

I cannot now identify the person whose voices !. had
reCoided in the tape. Talso cannot distinguish the
name of PerSOrl whose -voice I had· recorded after
heariug- ~he tape-:::. ;:-:::-: • :-:MyStenographer - had
H
RAM SINGH v. COL.· RAM SINGH [FAZAL ALI, J. j 421

prepared the transcript Ex.PL It was ·prepared in A
my office~ Most qf it was done under my supervision. I
might have been temporarily absent to attend to
c~rtain' other lt{ork~"

Thus, eve11 4ccepting th~ ~tatement pf P.W. 7 at its face
value. it appears ):hat the vario)lS safeguards and precautions B
which J:he law requires to R~ taken while recording the Statement
on a tape recorde!' were not ol>served by Mill· That by its!'!f is
sufficient to d~sc11rd ):he s):ateinent of the respondent recorded on
the . t!lpe recorcler with()\lt !!oing iµto the merits of the said
statement, ·Even s 0 , we shall deal w~th J:his matter in detail when
we take up the recor<:led stateme9ts iµ the caGsette in the light c
of the evigence of the respondent: who ha<i b!!en examined by us as
a court witfll'SS to throw light 0n J:he S\lRject,

Another serious !rifi<J!Igy from which the evidence of tl)is
witness sµffers is that wh!le he l):(li!§el{ 11<imits that he was noJ:
in a position to idenJ:ify the voices of the persons whose state~ D
ments he ha<l rec0r<led, R.W. 1, who was an alternative Presiding
Officior at tile Kalal«l po1ling booth, has completely der{ied to
hav~ Pl9.d~ a~y sta~~eq~ ~~ recqrded in the ~Ssette and asse~t~
that he had ;ibsolut~l,y no ti>l1' with P.w. 7, ·S;:nilarly, R,W, 3
(COfl!'tabl,e) stated that: p.w, 7 hall t!llked only t 0 the Presiding
OUicer · a!l<l to no other inember of the p9l,ling ·staff. No evidence
hlis beel) pi:oduced by the appellani:s to rebut !:his part of the
evidence Of R.w. 3. R!W. ~ ~ay.s .in uµ~ondittonal terms ?~
follows:

!•i d{d not mal<e any such statement wtri.ch is r~cpr9ed
in the tape. Th<O voic~ r~cord~d in the tape is 11ot .mY
voice. F

1'9e ~ta~~enJ: of ~he witness wl)~ch f_s .tragscrib~d in
Exhibit P-1 was also put to. the witness. After hearing
the sam~, the ·wiJ:qe.~_s st_ated:-

"I did not ma~e any s~h statemerit to the Deputy
Commissioner,. no_r h~ iq.terr.og~ted me.'!

It ~ould thus appear that the two witnesses for. the respory-
dent, who were government s~rvar~ts a.nd therefore official
witnesses> ~J,.early and categorically d··.ni.ed havi-q.g _made any such
stdtc111ent in the ca.sset.r.e. p.w. 7 himi;;el[ has Ver:y fair~y and H
frankly $tci.t.-~rl that he was rioL in rt pos~tt9p. to_ ident.ify t,l)_e
422 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

voices either of the respondent or of the witnesses for the
respondent (R.Ws. l and 3) at the time of giving his evidence.
This, therefore, throws a considerable doubt on the 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
B
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.

A.~other 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 P.W. 7 himself.
c Accr.rcting to the consistent evidence of R.Ws. 1-6, no inc.ident
had happened nor was any trouble created by the respondent but
instead the musclewen of the appellants led by Ajit Singh tried
to create all sorts of trouble, information of which was sent to
the Deputy Cormnissioner. Here, we might notice the admission of
P.W. 7 where he st-ltes as fol.lows:-

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

If the wireless message was sent to the il.C. at about 10.30
a.m. there could be no question of the respol'l.der1t or his people
to have visited Kalaka polling booth in order to creatt
F
disturbance. This, therefore, intr.::i..:i.8ica1ly supports the case of
the respondent and <h~molisbes the case of the appellants about
the arrival of Col. k1'1.l S.i.11gh dnd his relations, Sn..tbir Singh <ind
Anil Kumar.

It was also in evidence that after ::he f lrst incident o(
the morning (Wireless message received by P.W. 7) two motor
cycles are Sdid to have been left behlnd. lt is manife~t that if
the persons who had connnitted the d.lsturbances al')ngwith their
c•lmpanions did not belong to the party of the respondent, as the
wlr.eless message shows, then the only other irresistible
conclusion, by the process of elimination, would be that the
motor cycles must have belonged to Ajit oingh and his companions
who were supporters of the Congress (I) candidate.
RAM SINGH v. COL. RAM SINGH [t~AZ...\L ALI, J.] 423

Thus, this being the position and the real state of affairs A
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 boarq.

Another reason which throws a considerable doubt . on the
testimony of the wltnesses of the appellants is that P.W. 7 B
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 C
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 D
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., Col. Ram Singh,
alongwith 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 E
Conmissioner that the wireless message received by him was not in
respect of Col. Ram Singh and his men but the message which the
n.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 F
Singh with a posse of his own men on the other had reached the
Kalaka polling booth at almost the same time. Indeed, i f this had
been so there should have been a huge riot and a pitched battle
between the two parties but no witness says so. The evidence
merely shows that Col. Ram . Singh had reached the place just after
Anil Kumar and Satbir Singh alongwith their men left aru! after G
the Presiding Officer had set the matters right. The A.S.I.
(P.W.10) also says that '3-4 persons had made a complaint in
writing to him but he had not seen those reports on the date when
they were made to hie. but it must be on the file. The witness was
shown the file of complaints and he admits thus:-
H
"I have seen the file of complaints which has been
shown to me now. That complaint is not in this
complaint file."
424 SUPREME COURT REPORTS [1985] sµPP.2 s.c.R.

A What happened to the complaint received by the witness (P.W.
10) is not known or can be anybody's guess7perhaps the same
vanish~d into thin·air .o~ may be was·non-ex~stent.

l'h~ 1t14tter does
not rest here but there is one more inherent
circ~.t;mce whicl'i completely falsifies the case of the
B appel1ants. The Presiding Officer was shown Ex. P-5 and he stated
that he hij.d not mentioned anything iq the said document a!>out
i.ntimi~tion .of the yoters and other persons.. He (P.W, 8)
categorically states thus :-

"i l:iave seen Ex. P-5. Column No. 20 (a) is to furnish
informatiOn about . "Intimidation of voters an<! other
C persons". I have not mentioned anything.in this column
but have crossed it." .

indeed, . if there was any such intimidlition, being the
Presidiµg Officer he would not have crossed the column regarding
tile same. He admits that he had served. in the Ahir High school
which appears to have been patronized by Rao Birendra Singh and
D the possibility that this witness concealed the truth (as appears
from his evidence) and made a statement regarding intimidation to
oblige Rao Biren<!ra 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
Birendr~ Singh had absolutely no connection with the said School.
E
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
respoqdent in the presence of R.w. l told the Presiding·Officer
that he should not be partial to any party and complained to him
F abou.t the beating up of his polling agent. Hari Singh (P.W. 8),
the Pre.siding Officer .as.sured 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 .wi.tness and the Presiding Officer they tried to snatch the
ballot ba·x which was, however, protect~d by the Presiding
G Officer .• In the meantime, the police party arrived and the people
who had gathered .there sped away. Much was ni.ade by the counsel
for the appellants regarding omission of the witness to mala> any
repor.t to .the polii:.e.. But not much turns upon this because the
witness clearly admits that as the Presiding Officer was in
charge of the whole show, he had reported the matter to hlm who
H had assured him that he would set things right. A number of
RAM SXNGI! v. COL. RAM SIN(rll [F.',Z.AL ALI, J.] 42?

questions w~re put· 1:':> him which ~r? of not PAiFh §i.~J1i.fi~~ni:e .A-
b~C9µs,e the &n_swer _of the wi.tn?ss ,was -~4a.t ~ha~ev~r lie ,h[i~ to ~ay
he ha4 told his innnediate superior; .the Presiding Officer· It is
obvious that R.W. 1 was neither a police officer µor a person
h9lding ahy importarilo job but was .only a te<icl:ter i!) a school•
Pei:haps he thought tb<>t U !'as enoµgh ~f he informed h!s.•upe!';lor
(Presiding Officer) who would do t!J.e nee<lful. Thi> l"itness lllf>p B
adnlits that he had tolcl the Presiding Offtcer about .the Yi,sit of
Ajit Singh and his companions and the trnu\>le created PY t!).ell) but
he wa.s i<>ld by t!J.e Presiding oUicer th9t he had re~ord!'d th"
same fa the Piary; !:hough in .the pres.enc!' ·of ,the )Nitµes.s [le iii.cl
not wi:ite any report nor did Ile ·hanclover any repqrt tO the poiice
in his presence, The witness then goes on i:o state that after ,a C
few days of the elections, the pol.ice had obtaiµed an !iff.idayit
from his. but no ai:t"'11lp!: was made by·· the appell'1l)tS to gei: th'1t
'1ffid'1vit summoned, pro4uced and ex(libited in the ,Oase and in. the
abse:nce pt that the. c9urt is ~f!.!:itJ.?4 tp pre~wn? th.at ,what~y,er
tne )Nitness may have said to the Pr~siding Officer !'as contained
in affidavi!: aiso. D, .

R.W. 2, Deen Dayal, who was a member of the polling staff,
full.y cprrp}Jora~eS t4e evidence of R·W-• 1 r_egard;i.ng the arrival
of Ajit Singh armed with pistol and e.5!compgIJ.:j.et;:l by .a number of
pers~ns. He furtb~r corrobor~tes th&~ some of ~~e companions of
Ajit Singh removed the polling .agent of .Col. Ram Singh and then
asked the -witness and others to handover the ballot papers but E
as the witness resisted he was beaten up by Ajit Siggh and othe~8
but on the intervention of the Presiding Officer the matter
rested there. Thereafter, Col~ Ram Singh came who was also
assµred by the Presiding Office.r tb<>t needful would pe done. A
capital was made by the app\'llal)ts before tile <:ourt below as also
hei'e _regarding the veracj..ty _of thj..s witp.ess l;>ec;:iuse he dj..d .not F
make .any report to the D.c •.or th" S.D.Q .• about j}is bl!ing .beaten-
up. A$ eilt"eady r:g.entioned, the wi.tn~:S_s w_as -_merely a ~?~cher and he
appears to have been satisfied· by the assura_nce giv_eI). to him by
the Presiding Oj:f;i.cer that necess~ry _ac;:.tj.on wou1.4 be taken. He
.further s.tates th1it the U.C, only talked to .the Presiding Officer
gn(j n.ot to any .other member of th~ polliq.g staff,. 'IJJJ..s $ho~_$ that G
the evidence o~ ~his witn~s~ is true. ·

The next witness on !:he poi,q.t i§ R\i 3 (1'1Pl:iinder .S;Lm~h) who
was a police constabJ,.e deputed .to t,Q_e .$POt -to· maj.qtain- iaw and
order. The sequence of events that happened at the pplli,ng boot.h
and which have been depos~d to by the witl}.€$5 ·qiay ~e s~rised H
thus:-
426 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 1) while the polling was going on, between 7.30 and 8.00
a.m., Ajit Singh arrived with his compaDions 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
B allow any furher trouble to take place.

3) After Col. Ram Singh had left the place a nUlllber 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
c returned the same to D.hani !(am (RW 4).

The witness states that after some time the s.o.o. came
there and after having a talk with the Polling Officer he went
away. After about half-an-hour or 45 minutes of the departure of
the S,JJ,O,, the D.C. arrived and on his intervention the polling
again started at about 12 mid-day. The witness vehemently denied
0 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 o.c. nor
did he have any talk with him.

E The following important points may be noted from his testi-
money -

1) The sequences of events narrated by him gives sufficient
strength to the case of the respondent.

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

The witness was afterall a police constable (a government
official) and would not have the course make a false statement
before t.:he D.<.:. Moreover, evey the D.C. in his statement has
frankly admitted that he was not in a position to identify tht.
G
voice of this witness or for that matter of otners at the tirte bf
his deposition. Thus, in the eye of law, there is no legal evi-
dence at all to prove that the voice L·ecorded irl the
tape-recorder was the voice of this particular witness.

The next witness is RW 4 (lJhani l{am) who was also one of
H
the members of the polling st!:lff and a teacher in a (;overnment
RAM SINGH \r. COL. RAM SINGH [FAZAL ALI, J. J 427

Primary School. He fully corroborates the story given by RWs 1 A
and 3 and also gives the sequence of events referred to above
while dealing with the evidenc~ 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 •
• B
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 c
difficulty that M<>.hinder Singh (RW 3) who was on duty rescued him
and his brother from the clutches of Ajit Singh and his party. He
further states that he, alongwith 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 bro-
ther had received fists and slaps as a result of which they bled D
because of injuries on the.ir 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 amed with a revol-
ver, appeared on the scene and entered tqe 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 F
about 5-6 minutes inside the booth he drove away. The witness
further says in. cross-examination that tile 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.Q. and the !J.C. also came and ultimately the polling was
continued. The witness finally says that he did not inform Col. G
Ram Singh about the incident uor did anybody enquire f ram him
anything about the same. In these circumstances, we do not think
that the evidence of this witness is creditworthy.

Tfle other witnesses examined by the respondent not in
respect of the Kalaka polling booth. H
428 SUPREME COURT REPORTS l1985 J SUPP.2 s.c.R.

A The picture would rtot be complete urtless we give the other
versibn of the st-Oty put fotw'ard by the appellants who have also
examined man:y Witn8'sses.

PW 8 is. the only witness who has identified his voice
recorded in the tape recorder by the u.c. when other witnesses,
B including the o.c., could not do so. That itself shows that he
has leanings towardS the appellants.

Another important aspect which emerges from the evidence
of PW 8 is that, according to him,thetotal votes polled in the
Kalaka . polling ·booth were 573, the break-up of which is as
follows:-
c
between 7.30 to 8.45 a.m. 58
12 Noon- 2.0Q p.m. 205
2.QQ p.m . .,. 4.30 p.m• 109
372

This means that if there was any disturbance it would have
D taken a .very short time in view of the calculation given by this
· witness. If; however, it is a fact that both parties - one ied
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 s~art only · afte:t an interval of an hciur and a
half. Moreover, rio explanation has been given by this witness of
~ the votes polled in between 8.45 to 10.30 a.m. The tally of votes
i.s not consistent· witJJ. his evidence and is an intrinsic proof ·of
the fact t.hat his evidence is not true. The general impres-
sion which we gather after perusing his evidence is that' he does
not appear to be a Witness of truth and, therefore, we find it
diffitUlt to rely on the evidence of this witness. Moreover, we
F shall have to say something more regarding the credibility ·of
this 1'!itne.ss when we deal with the d0cumentary evidence.

PW 10 (Sri Krishan) was the s.u.o. and Returning Officer
for the Rewari constituency. According to him, he remained in his
offke upto 10.uo a.m. and after that he started touring the
(; various polling booths. He goes on to say that on 19.5.82 he
re.iched. Kalaka at about 11.00-11.30 a.m. on receipt of a
complaint to the effect that Col. Ram Singh, alongwith his
companions, had tried to intimidate the polling staff and the
votets. When he arri.ved at the spot he found the polling at a
standstill. This actually supports the case of the respondent
H that the polling went on smoothly from 8.QO a.m. to 11.QO a.m.
RAM SINGii'v. COL. RAM SINGil [FAZAL ALI, J; J 429

and the trouble must have beeri statted either by Ajit Singh or by A
his men. The poil couid not have restarted before 1.UO to i;}Q
p.m.- because, ac:cotdirig to the evidence of t.he -D.Co·; the po11-itig
staff had been interrogated and their statements Were tape-teCot..:.
ded which would have taken qtiitt a lot df time. This . fact
intrinsically knocks the bottom ·out of the case made out by PW 8
reg.arding timing of the Voting. ii

PW 14 (Purafi) is the next witness who does not appear to be
Of any itnportartce because l.t is brtiy a c:ase of ·.oath .against oath.~
llireover, a perusal. of his evidence shows that this:· witness tan
away after Col. Rani Singh is aileged tci have thteatened him• He
then retutn·ed and 'Cast his vote at about 3oOU P•th• Not much turns
c.pm1 to evidence• Rathet his evidence sllows that he teatned the
spot neatabout 3,00 p.m; when peace had beefi re.stored artd the
poiling had testatted smoothly.

More Or leSs, ·to the §ame- effect is the. ev.ide.nce of PW 16
(Ishwar Singh) with the dif Eetence that this witrtess says that he D
was assaulted but then except infotiliitig the s.i, a:bout tbe injury.
he took no further steps. if he was actually injured he W'ould
have made it a point to repbtt the fact of his assault to the·
D.c. Ot the S.L.O. or other officer's who had ass~mbied after the
fuistreants had gone away• This obviously he did not do. Lastly.•
ne admits. that his famiiy was_ supporting the Cortgr~8s (I) candi·-
date (Sumitta liai) and, therefore, he could not be said to be an E
iridepertdent witness.

PW 17 (Amar Singh) was admittedly a polling agent of .
Sublitfa Bai· The wit!less says tlia:t When the o.c,. artd s.o,o. came
he Iha.de a Complaint· to theiii itt wtiting which Was also signed by
Suraj Bh.8.rt, 1-1.angal Sirtgh, Bast.:i kariI and 6thefs. ·He (Utthei says F
that he had verbally coniplaihed to .Deep Chand, · thi= ASI but he
took no action. Ii'! states that the lJ:C. ha:d however ni."ade an
enquiry from him but the D.C.- does i~ot say anything about this
witness and- being a most intetested wl-tness it is difficult for'
us to rely on this witness wheri. the High Coutt which had the
qpporturiit)r of watching the · deraea11our and behaviour of this G
witness placed no reliance on hill.

The eViden~e of. PW 18 is almost in the same ter'm.<:>. Like
others, he also seefl1S to made· a ·written report to the police
station which has not been produced n.nd. uo act i.on see:i1s to h;;ive
been taken thereon •. It is rather str':int;e that a nurnbet of wit'- H
nesses say that they had made an ota.i or written com1-1laitlt: Yet no
actiori was t&ken ther-=on which shows that thr~ stati;>.ment of the
witness is a puiely cooked up story•
430 SUPRfil!E COURT REPORTS [1985] SUPP.2 s.c.R.
I
A
This closes the evidence so far as the prosecution witness-
es are concerned. The learned Jurige of the High Court has taken
great pains in very carefully marshalling and analysing the
evidence and so far as Kalaka polling booth is concerned, the
findings of the High Court may be extracted thus:
h "The evidence of the PWs on this point is not corro-
borated. The ownership of the motor cycles abandoned
by the party of the respondent was not traced. The
ownership could be established from their Registration
.8ooks. No effort was made to connect those with the
respondent or his supporters. This shows that the P'Ws
were drawing upon their imagination to make out
c stories about the detention of the persons and the
forcible polling at that polling station by the res-
pondent.

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

Shri Sri Krishan SDO (Civil) stated that 3/4 persons
gave him a complaint at Kalaka about the inci- dent.
E It was a signed complaint. That complaint is not
traceable. It was not found in the complaint file. Nor
was it enetered in the complaint register. That com-
plaint could throw light on the incident if at all it
had been prodl!ced. 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' evi-
dence and the detailed discuasion in the previous
G 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 suapicions which are indicated in the
previous paragraphs attach to his evidence and it is
difficult to say that the inference in favour of the
H
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.] 431

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 favour."

After going through the evidence vet'y carefully>" we find
ourselves in complete agreement with the conclusions arrived at
by the learned Judge of the High Court so fat· as Kalaka polling B
booth is concerned.

BURTHAL JAT POU.ING BOOTH

This now brings us to the second and the last limb of the
arguments cidvanced by counsel for the appellants - the evidence C
regarding the corrupt practice in respect of Burthal Jat:. polling
booth {for Lhort, 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.
D
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 consti-
tuency in which both Kalaka and Burthal polling booths fell. fil.s
evidence, therefore, does not appear to be of any sig- nificance·•

The next important witness is PW 7, the Deputy CO:rilmissiortet' E
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
polling booth is concerned, he states that he had received a
complaint that a worker of Congress (J) candidate was attacked by
villagers of Burthal Jat and his main purpose to visit the villa- F
ges 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. Sbme of the
polling officials who were there, however, told him that there
was some incident outside the polling booth but the identity of
the persons responsible for the same had not been established. PW G
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 person
·, and the third one had run away. The D.C. interrogated those two
persons who told him that they had no connection with the jeep.
He further admits that he did not interrogate them as to which H
432 SUPllliMJ<: COURT REPORTS [1985] SUPP.2 s.c.R.

A political rarty they belonged - whether Congress (I) or Congress
(J). He further testifies to the fact that a jeep was found at
the spot with some sticks lying inside it but he did not see any
motor-cycle near the polling booth. The persons who were attacked
at Burthal by the villagers and whom he did not interrogate, tor
reasons best known to him, were Satbir Singh and Anil Kumar. This
part of the evidence, therefore, corroborates the case of the
respondent that assunrlng Satbir Singh and Anil Kumar were
companions of Col. Ram Singh but they had undoubtedly been attack
at the village and the o.c. also admits that the Sarpanch of 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
c though he admits that some portion of the recorded conversation
was erased inadvertently due to his own voice being recorded
there.

This is all th;:it witness says in respect of Hurthal booth.
Accepting the entire testimony as it is without any further
connnent, it is not proved or established as to who was the person
u or persons at whose instance the corrupt practice was connnitted.
There WA-S, however, a clea~ admission by the D.C. that it was the
respondent's party which had been aggrieved. It is rather surpri-
sing and intriguing that although the D.c. had gone to hold a
regular inquiry into the irregularity counnitted at Burthal booth
he did not care to interrogate Satbir !::iingh and A..1il Kl.llilar who
were present there particularly when, as he himself says, the
Sarpanch of the village had complaine.d to him regarding some
trouble. lt seems that PW 7 cont~nded himself merely by recording
the statement of the Presiding Officer in thll tape recorder which
was really a dictaphone, as told by the witness himself.

F 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:

"l cannot now identify the person whose voices l had
recorded in the tape. I also cannot distinguish the
G name of person whose voice I had recorded after hear-
ing the tape."

Thi.~ witness was cross-examined regarding the cassette
reLorder and he has made the following admissions:

H
RAM SINGH v. COL. lWl SINGH [FAZAL ALI, J.] 433

a) that there was no instructions· from the Goverrunent A
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 obser-
vations in his own voice,
B
c.) that the cassette and the dictaphone remained all
the time with him and were uot deposited by him in
the record room.

d) eve:1 a copy of the transcript of the recorded
statements prepared by his stenographer was not depo- C
sited 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.
D
PW 7 in his statement says that the statements cf the
witnesses recorded by. him were transcribed by his stenographer
under his supervision in his off ice but he may have temporarily
gone out to attend tO some other work. This is rather import~nt
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 E
on the credibility of the. recorded statement. To a direct
question by the court - "Can you rule out the possibility of tam-
pering with the .transcript" .... his answer was - "l do not think if
it was possible". The answer is self-evident and frightfully
vague so as not to exclude the possibility of tampering. Ordina-
rily, the admissions made by PW 7 would have been sufficient to F
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.

The next witness is Shri Krishan, s.o.o., PW 10. We have
already discussed a major part of his evidence while dealing with G
the Kalaka polling booth and pointed out the serious infirmities
from which his evidence suffers. Same coIIDDents 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 o.c., he saw H
Satbir and Anil Kumar surrounded. by the people of 'that village.
434 SUPREME COURT REPORTS ll985] SUPP.2 S.C.R.

A 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
B and as to the author of the complaint are rather dubicious parti-
cularly in view of the evidence of Mam Chand (PW 35). PW 35 was
shown Ex.P-9 and after seeing the same he stated that the same
did not bear his signatures. He also deposed that there are two
other persons by the name Mam Chand, e.g., there is one Mam Chand
who is the son of Kehar Singh and the name of the father of the
other Mam Chand was not known to him. It is, therefore, manifest
C from the admission of PW 35 that the complaint Ex.P-9 was merely
handed over to PW 10 by Mam Chand but neither the contents were
proved nor the maker thereof had been examined. Therefore, the
complaint is clearly inadmissible, as the persons who hands over
a complaint cannot be said to be the author of the same. We
would, therefore, have to exclude Ex.P-9 from the array of the
documentary evidence. There is nothing further which this witness
D proves.

PW Z6, 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. lie 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
F evidence of this witness is of no assistance to the appellants.

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 elec-
G tion 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. l{am Singh. ln cross-examination he admits that he cannot
ide't\tify Satbir Singh. It is, therefore, difficult Lo believe as
H to how he named Satbi.r Singh as one of the persons left behind by
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.] 435

A
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
difficult to place any reliance on this witness and his evidence
B
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-exami-
nation he stated that he verbally complained to . the Presiding
c
Officer about the conduct of Col. Ram Singh but he did not make
any compliance to any officer ill writing. His evidence,
therefore,carried no weight unless corroborated by some
unimpeachable documentary evidence.
D
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 coomdt himself in so
many words •

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

PW 32, Shamsher Singh, is rather an importantwitness and
according to his evidence he went to the Burthal Booth at about
F
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)
candidates, 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
G
own choice l:o 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 H
him that it belonyed to Col. Ram Singh, a statement which is
clearly inadmissible. He finally says that when the D.C. and the
436 SUPREME COURT REPORTS [198j] SUPP.2 s.c.R.

A S.D.O. came there he informed them of the incident. In cross-
examination he admits that he made no report in writing to the
police that he was beaten up nor did he get himself medically
examined. lie also did not file any complaint in any court against
Satbir and Anil Kumar. In these circumstances, we find it
difficult to rely on his evidence.
B
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. lie rescued Shamsher Singh with the help of some other per-
sons. The witness, being a chowkidar of the village, should have
c 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.

More or less to the same effect is the evidence of PW 34
(Ram Narain) who is also a Lambardar of village Kakoria. lie says
D 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.

The learned Judge of the High Court who had fully consider-
F ed the evidence of these witnesses observed thus:

"The time of their arrest as noticed makes the evi-
dence 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
G have failed to prove this part of the charge of
corrupt practice against the respondent."

A bare perusal of the evidence bf 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.
H
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, .J. j 437

This now brings us to the evidence ·led on behalr rJf: the A
respondent. To begin with, RW 11, Ravi Datt Sharma, who was a
Lecturer in Govt. Higher Secondary School, Rewari, w;:;ts a .f:'olling
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 inci-
dent. He categorically states that he knew Col. Ram Singh and he
(respondent) did not visit the polling booth on the polling day. B
He further goes on to state that at about 1.00 p.m., the D.C. and
S.IJ.M, visited the polling booth. On their enquiry, the witness
told them that everything was going on smoothly. He Clearly
denies that the o.c. had recorded any conversation which he had
with him in the taperecorder. His evidence, however, is confi.ned
only to the incident that had happened inside the booth and not c
outside. We do not see any infirmity in his statement A.s he
appears to be an independent and truthful witness.

RW 12, Parbhati, was a voter of Burthal booth and he testi-
fies 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 D
out and stayed with his co-villagers and remained. there will 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 n.earabout the polling
booth. He further state• that Shamsher Singh (PW 32), Sarpanch of
the village was standing at a small distance with some people and
he (PW 12) heard some altercation between them. During the E
course of the said altercation the police arrived at the spot and
removed two persons (meaning perhaps Anil Kumar and Satbit Singh)
wh0m 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 and F
Thaver Singh were the polling agents of Smt. Sumi tra Bai. He
categorically states that he did not know Satbir Singh or Anil
Kumar and therefore he was not in a position to say whether they
were there or not. He_also states that at a distance.of about 2
killas from the booth a jeep was standing and he did not see any
sticks in that jeep, and that villagers were saying that B.D.O. G
and s.n.o. have come there. Since hi' did not know the n.c. was
also there. He stoutly denied the allegation that Col. Ram Singh
had come to the polling booth in the morning soon after the start
of the polling and that he (respondent) had left 15-20 persons
who had to be removed by the police. It may be noticed at this
stage that the suggestion in cross-examination itself presupposes H
438 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 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
B case of the appellants themselves.

RW 13, Ami Lal, was also a voter of Burthal booth and he
says ithat 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
c 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.
D
RW 14, Sheo Chand, who as also a voter, fully supports the
evidence of l<W 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. '
E
l<W 20, T.C. Singla, is more or less a formal witness who
produced certain letters (dated 25.4.82 and 30.4.82)'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
purpo~e.
F
RW 22, Col. Ram Singh, is the respondent h~mself. We shall
deal with his evidence relating to both Kalaka and llurthal
booths. To begin with, he clearly states that the D.c. (PW 7)
was not impartial and was working against his interests. Perhaps
G
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: there clothes were torn and they appeared to have been
badly beaten up. They informed him (RW 22) that Ajit Singh S/o
RAM'SlNGI! v. COL. RAM SINGH [FAZAL ALI, J.] 439

A
Rao Birender Singh, accompanied by 5o-60 persons had entered the
polling booth and beaten them up and thst they were indulging in
for.-.ible 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
witness rushed to Kalska ·and reached there. at about .9.15/9.30
a.m. and after leaving his car at some distance from the polling B
booth he walked to the booth. He went inside the booth and
protested to the Presiding Officer (PW 8) and drew his attention
to the complaint which he had received from Tula Ram and Ram
Kishan. The Presiding Officer verbally assured him thst nothing
untoward would . be all01'l!d to happen. · The witness stayed there
only for 7-8 minutes and returned to his house and telephoned the c
police and also sent a written report to the police about the
incident. He received a message from the police station.at about
lQ.30 a.m. thst his complaint had been flashed to the D.C. to
take appropriate. action in the inatter. This important part of
his evidence is fully corroborated .by the statement of DC (PW 7)
that. he had received a wireless message from the police authori- D
ties to the effect thst Ajit Singh and his party· were creating ·
trouble at Kalska booth. The witness categorically states tliat
he did not go the village Burthsl Jat nor did he send any of his
workers there. This fact is fully corroborated bye the intrinsic
evidence of the witness recorded by the D.c. at Burthsl where the
respondent does not appear to figure or, at any rate, his state-
ment was not recorded at Burthsl which is clear from the E
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 thst "Satbir
Singh, who was a leading figure at Burthsl, was an adopted son of F
Jagmal Singh, who was father-in-law of Col: Ram Singh. The
witness further clarifies thst he had divorced his wife as far
back as 1962. Thus, when the witness says thst he hsd 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. G

As, ·however, this witness, who appea,red before us, was
examined by us at our instance and was subjected to cross-exami-
nation by bot.h the parties, we shall discuss thst 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 H
booth.
440 SUPREME COURT REPORTS [1985j SUPP.2 s.c.R.

A 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 quslity than that adduced by the appel-
lants. The learned Judge of the High Court was also of the same
view and had rightly held that the allegations of corrupt
B 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.

We might now rush through the relavant documentary evidence
produced in this case which has been fully dealt with by the
c 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 docunent and
found that while in colunn on 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 colunn. No. 20(e), relating to intimidation, etc.,
D 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 colunn 20 (e) he did not
mention anything as he was greatly perturbed at that time. This
E is a most implausible and fantastic explanation which apart from
being inherently improbable appears to be absolutely absurd. The
witness wants us to believe that at the time of filling up colunn
20 (e) he was perturbed but in a split second while filling up
the very next colunn, i.e., colunn 21(4) he suddenly gathered
strength to compose himself and made the observations contained
F in the said colunn. As the two entries were supposed to be
filled up simultaneously it is impossible to believe that while
filling up one entry he was perturbed and while filling up the
next entry he was in a composed state of mind. In other words,
the explanation comes to this: his mental state of mind by a
miraculous process cooled down and led !ti.In to make the observa-
G tions 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
H proof of the fact that no threat or intimidation was given by the
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.] 441

respondent or his men during his presence and in order to save A
his skin the witness msy have msde 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 msking some B
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 various authorities c
including the Chief Election Comnissioner of India complaining
about the misuse of powers by the polling officiais in the
conduct of election.

This is all the documentary evidence that mst ters and, in
our opinion, nothing turns upon these documents. D

This now brings us to the last and inevitable step of the
drams starting with P.w. l and ending with R.w.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 msnifest defects and incurable infirmities from
which the statements recorded on tape recorder suffer. Our E
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 msy be pointed out thus:

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

2. A good part of the statements recorded on the cassette has
been denied not only by the respondent but also by R.Ws. 1 and 3.
No other witness has come forward to depose to the identification G
of the voice of the responden~ or those of R.Ws. l 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.
H
4. One of the important infirmities from which the tape
recorded statements suffer is the question of custody. P.W. 7,
442 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A the o.c. has clearly admitted in his evidence that though he was
supplied 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 P.W. 7 violated the
instructions of the Government he gravely erred in not placing
B 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 insdmissible.
c
5. P.w. 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
D 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.

E 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
F 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 b<.en
G per se inadmissible.

7. As it is, the statements on the tape rscorder 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
H
RAM SINGH v. COL. RAM SINGH (FAZAL ALI, J ·] 443

the polling booth.where it was recorded, the name of the person A
whose stat.ement was recorded, the time of recording, etc.

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 recorded the statement. No such scheme
was followed and the court is left to chance and conjecture to B
filld 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
:-
c
is not the petitioners' case that Col. Ram Singh
.. It
came to the polling station or polling booth. The
petitioners' witnesses (P.w. 27, P.w. 28 and P.w. 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 D
·and thereafter left the place ...

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.
E
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 taperecorder which has led to so many complications. And, if he
wanted to use a taperecorder he should have taken the necessary
precautions to see that too many voices, interruptions, distur- F
bances are completely excluded. He ought not to have·allowed any
person to speak while he was recording the statements. Unfortu-
nately, 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 ·af the persons concerned. G

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 n.c. on this H
444 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A
point is conspicuous by the absence of any such description or
comments. Indeed, the o.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 v0ice and where he admitted the
same. We should have at least expected the o.c. to give better
details in a case like the present one which, as already
B mentioned, entails serious consequences for the re.spondent 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 eviderice and,. at any rate,
they do not have any probative value, so as to inspire any
c confidence. Hence, it is extremely unsafe to rely on such tape
recorded statements apart from the legal infirmities pointed out
above.

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
v imperfections:-

1. some statements said to h~ve been recorded by P.W. 7 ·have
been flatly denied by R.ws. 1 and 3, one of whom was a polling
officer and the other a constable.
E 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 gruelling
cross-examination of the respondent in this court by Mr. Sibbal,
F counsel for the appellants, seems to have forced the respondent
to admit certain innocuous facts though he might just as well
admitted those facts which caused no harm to him.

We might mention here that our object in examining the
respondent as a court witness in this court and subjecting him to
G cross examination by both the parties was not to fish out •
technicalities by putting all sorts of querries 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·
H
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.J 445

A
Sibbal 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 alongwith 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 the serious situation arising from the severe
altercation that took place between the supporters of Col. Ram
Singh and those of the other party, it is quite possible that on
hU111anitarian grounds :~ may have personally gone to the police c
station with the injured persons but as at the' time of his
deposition he happened to be the Speaker of the Vidhan .Sabha he
may have felt that his vanity would be injured if he admitted
that he himself had gone to the police station. Even if he had
given this reply, it would not have· improved the case of the
appellants. This is just a sample of the questions put by the D
counsel 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 F
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 G
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. H

It was strongly urged by Mr.· Sibbal that in view of our
recent decision in Ram Sharan Yadav's (supra) the impact of the
446 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A
evidence on the court would show that the respondent was lying
and that was sufficient to prove the appellants 1 case. We are
unable to agree with the broad interpretation put by the learned
counsel on our decision.

Jl
In fact, if we apply the principles laid Ram Sbar,;,, Yadav's
case, the appellants' case must fail at the threshhold.

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
c 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
D 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 out several infirmities and defects which despite the
ingenious and .channing arguments of Mr. Sibbal have not been
rebutted.

On a careful conside.ration, therefore, of the evidence,
circumstances, documents and proba.bilities 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 jtigment of the High Court
and' dismiss the appeal but in the circumstances without any orde~
as to costs.

VARADARAJAN, J. : This appeal under section 116A of the
Representation of People Act, 1951, hereinafter referred to as
G
'the Act', is directed against the dismissal of Election Petition
No. 13 of 1982 on the file of the Punjab & Haryana High Court.

The appellants are registered electors of Rewari
Constituency No. 86 of the Haryana Legislative Assembly. In the
election held for that Constituency on 19.5.82 Col. Ram Singh,
H
RAN SINGH v. 'COL. RAN SINGH lVAIWJARAJAN, J.J 447
•
here.inaf ter referred to as 1
th~ respondent' who contested as the A
Congress {J) candidate was declared elected on 21.5.1982 after
the counting was over on 20.5.~2, defeating has nearest ri.;al,
0umitra Uevi who is said tO be the sister of Kao llirendra Si.ng,h
and. had cont~sted in ~hat Constitut:ncy as the "congress \I.) car1di-
date. Sumitra Uevi lost by a Ul(:l.tgin of 8,760 votes. The appel-
B
lants sought in the election petition a declaratit)n that the
respondent's election is void under section 10U of the Act. They
alle.ged that there was direct and indirect interference and
attempt to interfere on the part of the respcndent and bis agents
and other persons with his consent with the 'free exercise of the
electoral right of the electors. The respondent: stoutly oppos<.:!d
the election petition. After considering the evidence aud hearing c
the counsel of both the parties the learned Judge ~ho tried the
election petition found that the appellants failed to prove their
case beyond all reasonable doubt and dismissed the petition with
cost~ of Rs.2,000.

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

The appellants' case in regard to the Kalak..a polling
station is this! The polling in Kalak.a pol.ling station started•
and continued smoothly until 10.30 .a.m. on 19.5.1982. But at
<3bout lU.JO a.m. the respondent came there along with bU or 70
persons inclueling Ve.sh R.c.1j, Kam KrishJn anJ Krishan Lal of Kalaka
• and Sheo Lal, Gujar 1 KislTi L'akot, Umrao Singh, H..aghubir Singh,
balbir Singh Gu Jar, Abbey Sin6h Guj.:ir and Suresll cf Kewari. 111e F
resvon<lent wa,s c~1rrying a gun while some ol those who accompanied
l1iru were armed with guns, la this and swords. The respondent and
his companions threatened with arms an<l terrorised the el.ectors.
·' who were waiting outl::iide the polling station to exercise their
right to vote as a result of which Sheo Chand, Gurdial. Puran,
f1angal., tlasti Kam, lshwar dnd Al.IL:lr Si.ngh ran awdy wi.tt1uut.
exercising the'lr tight' to vote. The respundent and i:;vme other
arined pt:.'.rsons among.st his companions entered Lhe polling station
and brand.i.shed tht:>.l.r 5uns towards tne Presiding Officer and other
members ot the pol1.ing staff as we11 as the polling agents of the
various candidates and ordered e\'eryone to stand. still. They
threatened the voters who were i.n the polling station wben they H
rnised object ion.s to their conduct and made them to quit as also
A
448 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

the polling agents Amar Singh and Suraj Bhan. The respondent
d~rected a Sikh amongst one of his companions carrying a sword to
-
hit Mangal Singh who strongly objected to the respondent's
behavi9ur and he was accordingly assaµlted and injured. One Basti •
Ram who too objected to the respondent's behaviour was hit by one
of the companions of the respondent with the butt of a rifle.
Ishwar, a Lambardar was also hit by the barrel of a gun. The
respondent and his companions snatched about 50 ballot papers
from the polling staff at gun point and they were marked in
favour of the respondent and put into the ballot boxes after one
of the respondent's companions thtnnb--marked the counter foils of
the ballot papers as directed by the respondent. Tula Ram, Desh ·
Raj, Ram Krishan and Krishan Lal and others helped the respondent
c in marking the ballot 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 th€:ir 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 Bhcin,
D 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 ~etailed
report, giving his version of the incident and thereupon F.I.H..
No. 103 of 1982 was registered by the police. The Deputy
Cormnissioner 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
F consent attempted to interfere 'with the free exercise of the
electoral right of a large number of electors and the respondent
succeeded in his plan to scare away and compel some of the
electors to refrain from voting at the election.
-
•
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
19.5.1982, accompanied by SU or 60 persons including Anil Kumar,
Satbir Singh, Raghubir, Shea Lal Gujar, Rishi Dakot, Umrao Singh,
and &.lbir Singh Gu jar. Many persons including Mahabir Singh,
Hira Singh, Mam Gl'land, Dharam Vir, . Thavar
. Singh and Amar Chand
.H gathered there. The respondent told his suporters to ensure that
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 449

A
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 votes are cast in favour of the Congress (I)
candidate and- maximum votes are polled in his favour. Those
persons kept on obstructing and threatening the voters who were
coming to the polling station to exercise their electoral right.
Some of the persons who were thus terrorised were Su_rjit, c
Raghubir Singh and Lal Singh. When the Sarpanch Shamsheer Singh
who came to vote was about to reach the polling station, Anil
Kumar and Satbir Singh came by the motor cycle and told him that
he must vote for the respondent and otherwise he will not be
allowed to proceed further. When Shamsheer Singh said that he
would vote freely according to his choice Anil Kumar and Satbir D
Singh assaulted him with sticks and gave him slaps and fish
blows. Some respectable persons of the village including Kishori,
Ram Narian and Lambardar Mam Chand who were present nereby
rescued Sham.sheer Singh. The Assistant Sub Inspector Kalayan
Singh who was on election duty came there by a jeep and seen the
fight arrested Anil Kumar and Satbir Singh. The Deputy
Commissioner of the District and the Returning Officer [Sub E
Divisional Magistrate] also came there and took the jeep along
with lathis and 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.
F
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 petitio_n and that the
report of the Ptesiding Officer is not his own: version but a G
false document prepared at the instance of the resPondent's poli-
tical 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 H
or any one else with his consent and does not directly disclose
450 SUPREME COURT REPORTS ' [1985] SUPP.2 S.C.R.

A the conmission of any corrupt practice of undue influence. On the
other hand, the truth is that the men of Rao Birendra Singh cap-
tured the booth at Kalaka and the supporters and voters of the
respondent were badly out-manoeuvered which could be gathered
from the fact that whereas Sumitra Devi obtained 484 votes the
respondent obtained only 53 votes in that polling station.
B
The allegation that the respondent and some of his compa-
nions entered the polling station and brandished their guns at
the Presidi.ng Officer and ordered the other polling staff and
polling agents of the varlous candidates to stand still does not
attract any provision of the Act regarding the commission of
corrupt pr.::i.r;ti1:.€· The allegation that the po~ling agents Suraj
C 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,
llalbir Singh and Ishwar who are alleged to have been assaulted
and injured are not alleged in the election petltlon to be elec-
tors of the Constituency and therefore that allegation does not
constitute corr11pt pr;ictice. The allegation that 50 ballot paper,s
D were snatched from the polling staff and polled in favour of the
respondent does not con~titute corrupt practice.

The responde[1t'~ deb.~nce regarding the incident at Burthal
Jat is one of complete d~nial of the allegations in the election
petition in rec;~rd t(J that incident but there ls no denial of the
E allegation that A.nil 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 connei::tion was carrying lathis and
other weapons and that it was taken into custody by the offi-
cials. The allegation that Anil Kumar and Satbir Sin&h committe<l
any corrupt practice with or witt1out the consent of the respon-
F dent is false, n•a lici.ous and mischivious. Those two persons were
falsely implicated in the case under sections 107 and L51 of the
Code of Criminal Procedure and a clwnsy attempt was made to
i..!.llplic4te them by the subordinate police officials who were under
the.powerful influence of Rao Birendra Singh whose sister Sumitra
Devi was losing rtnd ultimatel;r been defeated by the respondent.
G Two independent alleged corrupt practices, one by the respondent
and tl1e other by the others, have been clubbed together .in the
election petition.

It is necessary to note all the issues framed by the Tri-:-
bunal. They are:
H
RAM SINC,1! v. COL. RAM SIN(,'!! [VARADARAJAN, J.] 451

(1) Whether the allegations of corrupt practice alleged in A
the election petition have not been suppo~ted 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? B

(J) 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'/ c
(4.) Whether petitioners Nos. 2 to 5 have not verifed the
election petition? If so,.what is its effect?

(5) Whether all~gations of corrupt practice alleged in the
petition lack material facts/legal ingredients and do D
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 parti-
culars? If so, what is its effect?
E
(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?
F
( ~) · 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?
G
The learned Judge of the High Court took up for trial issues
1 to 7 as preliminary issues. lly order dated 10 .12. l 98Z 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 H
necessary to record any finding on that issue. On the question
452 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A 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
B 11 of the election petition.

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 prepa-
red by the Presiding Officer, Hari Singh (PW 8) later under the
pressure and influence of the defeated candidate, Sumitra Devi
c through her brother Rao Birendra Singh and that FIR No. 103 of
1982 dated 19.5.1982 contained in Ex.P-6 is inadmissible in
evidence to corroborate the evidence of PW 8 about the incident
of Kalaka polling station on the ground that the origianl report
of PW 8 to the police had not been SlUllilloned by the appellants. He
found that the tape-record Ex.P.W 7/1 prepared by the Deputy
Commissioner of Mohindergarh District, (PW 7) has been tempered
D 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 re-
cord in Ex.P-1 is not proved with definiteness. He relied upon
the evidence addued on the side of the respondent in preference
to that of the other side and held that the appellants have
failed to prove this item of corrupt practice beyond reasonable
doubt.

Regarding the incident at the Burthal Jat polling station
the learned Judge found that the appellants have failed to prove
F that Anil Kumar and Satbir Singh are related to the respondent.
For coming to this conclusion he relied upon Ex.P-9 which pur-
ports 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 Maha-
bir Singh (PW 26) but it is not made out who their candidate was.
G 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.

H The points arising for consideration in this appeal are:
RAM SINGl!v. COL. RAM SINGH (VARADARAJAN, J.J 453

(1) Whether the incident in and at the Kalaka polling A
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 B

(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 evidence on record in regard to the C
incidents at Kalaka and Burthal Jat polling stations it is desir-
able to note 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.
D
Sectioon 87 of the Act relates to the procedur~ 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 E
Code of Civil Procedure, 1908 (5 of 1908) to the trial
of suits."

Order 8 rule 1 to 3 and 5 of the Code of Civil Procedure relating
to written statement read thus:
F
"1.(1) The defendant shall, at or before· the first
hearing or withiin such time as the Court may permit,
present a written statement of his defence.

2. The defendant orust raise by his pleading all
matters which show the suit not to be maintainable, or G
that the transaction is either void or viodable in
point of law, and all such grounds of defence as, if
not opposite party by surprine, or would raise issues
of fact not arising out of the plaint, as, for
instance, fraud, limitation, release, payment,. per-
formance, or facts showing illegality. H
454 SUl'REME COURT REPORTS [1985] SUPP.2 s.c.R.

A 3. It shall not be suffic1ent for a defendant in his
written statement to deny generally the grounds alleg-
ed by the plalntiff, 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 implkaticn, er
stated to be not admitted in the pleading of the de-
fendant, shall be talren to be admitted except as
against a person under a disability, but the Court,
may, in Its discretion, require any such fact to be
proved."
c
Section 116 A of the Act relating to appeal against certain
orders of the High Court lays down inter alia that an appeal
shall lie to the Supreme Court against the dismissal of an elec-
tion petition under section 98 of the Act. In the present case
the election petition has been dismissed by the High Court under
that section.
D
Section 116 C of the Act relates to procedure in the appeal.
Sub-section (1) of that section reads thus:-

"116C. (1) Subject to the provisions of this Act and
of the rules, if any, made thereunder, every appeal
E shall be heard and determined by the Supreme Court as
nearly as may be in accordance with the procedure
applicable to the hearill8 and determination of an
aweal 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 Pi:ocedure,
F 1908 (5 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 tax ao
may be, apply in relation to such appeal."

Section 100 of the Act mention the grounds for declarill8 an elec-
G tfon to be void. Section 100(1) (b) reads thus:

"Subject to the provisions of sub-section (2) if the
High Court is 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
H of a returned candidate or his election agent the High
Court shall declare the election of the returned can·
·didate to be void."
RAM SINGH. v. COL. P.AM SlNGH [VAHADARAJAN, J.] 45.5

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 say, any direct or
indirect interference or attempt to interfere on .the
part of the candidate or hls agent, or of any other
person with the consent of the candiate or his B
election agent, with the free exercise of any
electoral right."

Instruction 74 of the Instructions ·to Presiding Officers issued
by the Eleclion Conmission of India reads thus:
c
"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 maintaineG for
the purpose. You should go on recording the relevant
events as and when they occur and should not postpone
the completion and filing of all entries in the diary D
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 EJ<.,p-5 in this case has been recorded."

Mr. Kapil Sibal learned counsel for the appellants relied
upon certain decisions of the English Courts and of this Court in E
regard to the admissibility of tape-recorded evidence. I shall
ref er to them.

In&. v. llaqsud Ali [1965] (2) All E.R, 464, the following
observation has been made:
F
·: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 indi-
cate .......... On April 2 9, 1964 the two appellancs
were at the Town Hall at Bradford and they were taken
there into a room . .•........ There is no reason to G
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 H
microphone in position ............. so it ran for just

•
456 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 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
B be stated, had a number of imperfections ......... If
the jury could come to the conclusion that here was
something which amounted to a confession that they
were both involved in the murder, it can be seen that
this tape recording was a matter of the utmost
importance. It was, indeed, highly important evidence
and the defence sought strenuously to keep it out ••••
c
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 •
D 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 snch recordings are admissible
whatever the circumstances, but it does appear to this
E court wrong to deny to the law of evidence advantages
to be gained by new techniques and new devices, provi-
ded the accuracy of recording can. be proved and the
voices recorded properly indentified; provided also
that the evidence is relevant and otherwise admissi-
ble, we are satisfied that· a tape recording is
F admissible in evidence. Such evidence should always be
regarded with some caution and assessed in the light
of all the circumstances of each case." ·

ln K. v. Hobson [l972j (2) All E.R. 699, which arose out of
a case where the accused was charged with corruption the prosecu-
G tion 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 was inadmissible
-
II
evidence of what are recorded .in them. The originality and
authenticity of the tape were left to the jury in that case.

In Yusufalli Esmail Nagree v. State of Maharashtra [ 1967]
-
(J) S.C.R. 720, this Court has observed:
•
RAM SINGH v. COL. RAM SINGH [VARADARAJM, J. j 457

"Like a photograph of a relevant incident a cont.em- A
poraneous dialogue of a relevant conversation· is a
relevant fac.t and is admissible under section 7 of the
Indian Evidence Act."

Reference has been made in that case to RDop Chand v. Mahabir
Parsbad and Anr. A.I.R. 1956 Punj. 173; Mahiodra Nath v. Biswa- B
nath Kurulu 67 c.w.N. 191; Pratap Singh v. Tbe State of Punjab
[1964] 4 s.c.R. 733 and R. ~· Maqsud Ali [1965] 2 All E.R. 464.

In Slu:i N. Sri Rama Reddy Etc. v. Shri V.V. Girl [1971] 1
s.c.R. 399, a decision of five learned Judges of this Court the
following observation made in Yusufalli 's case (supra) has been C
quoted with approval:

"The contemporaneous dialogue betweeµ them formed part
of the res gestae and is relevant and admissible under
s.8 of the Indian Evidence Act. The dialogue is proved
by Shaikh. The tape record of the dialogue D
corroborates his testimony. The process of tape-recor-
ding 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 s.7 of the Indian E
Evidence Act."

In R.M. llalkaoi v. State of Maharashtra [1973] 3 s.c.R. 417, this
Court observed:

"Tape recorded conversation is admissible, provided F
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 eliminating the possibility
of erasing the tape-record. A contemporaneous tape
record of a relevant conversation is a relevant fact G
and is admissible under section 8 of the Evidence Act.
It is res gestae. It is also comparable to a photo-
graph of ·a relevant incident. The tape .recorded con-
versation is therefore a relevant fact and is admissi-
ble under section 7 of the Evidence Act.

- H
1~58 SUPREME COURT R.EPORTS [1985] SUPP.2 s.c.R.

A In Ziyauddin llurhanduoain Jukhari v. Brijmohan Ramdas Mehra
& Ors. [1975j Suppl. S.C.R. 281, this Court approved the High
Court relying upon the tape recurded reproduction of the success-
ful candidates' speeches to voters for holding that he had
appealed to them in the name of rellgion.

B 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 Chenoa Reddy v. R.C.Rao E.L.R. 1972 Vol. 40 396, this
Court observed:
c
'"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
D 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
E 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 elec-
tion petition on the charge of commission of corrupt
practice is somewhat different •••••••••••••••••• the
procedure before the High Court is to be !n accorclanee
F with that applicable under the Code of Civil Procedure
to the trial of suits with the aid of the provisions
of the Indian Evidence Act. Inferences can therefore
be drawn against a party who does not call evidence
which should be available in support of his version ...

G . In Balal<rislma v. Fernandez [1969] 3 S.C.R. 603, this Court
observed:

'"Although the trial of an election petition is made in
accordance with the Code of Civil Procedure, it has

H
been laid down that a corrupt practice must be proved
-
RAM SINGH v. COL. RAM SLNGH [VJ\JWJARAJAN, J.j 459

in the same way as a crimir~l charge is proved• in A
other words, the election petitioner must exclude
every hypothesis except that of guilt on the part of
the returned candidate or his election agent."

In Sultan Salalniddfn Owasi v. Mohd. Osman Shaheed and
Others. [1980J (3) s.c.c. 281, this Court observed: B

"'lt 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.'' C

In limn Sharan Yadav v. 'l'bakur Muneabwar Nath Singh and
Others., [1984j (4) s.c.c. 649, this Court observed:

"'As the charge of a corrupt practice is in the nature
of a criminal charge, it is for the party who seta. up D
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 satisf ac-
tion 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 E
authority concerned under Section 8-A of the Act may
think fit •••••••••••• while insistill!l 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. Such an approach would defeat and frustrate F
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 llageodra
Kahco v. The State A.I.R. 1954 Patna, where it was stated in the G
complaint that the criminal revision petitioner before the High
Court insisted upon going into the room where the b1llot 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 H
guillt and sufficient to sustain the conviction under section 131
(1) (b) and section 136 (1) (f) of the Act.
460 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R. ,.

A On the other hand, Mr. Sibal invited attention to this
Court's decision in Bara 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:
B
"The words of the English statute, quoted above, laid
emphasis upon the individual aspect of the exercise of
undue influence. It was with reference to the w0rds
of that Statute that Bramwell,B., made the following
observations in Horth Durham [1874] 2 O'M & H. 152 :-

c "When the language of the Act is examined it will be
found that intimidation to be within the statute lllllSt
be intimidation practised upon an individual. The
Indian Law on the other hand, does not emphasise the
individual aspect of the exercise of s'uch influence,
but pays regard to the use of such influence as has
the tendency to bring about the result contemplated in
D
the clause. What is material under the Indian I.aw, 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
E
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 exer-
F
cise 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."
G
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
H
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.) 461

and sword or kirpan and the polling of bogus votes marked in A
favour of the respondent after threatening the polling officers
and polling agents wl>.o 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
statiun awaiting their turn for casting their votes. Regarding
the first part of the incident at Kalaka there is the evidence of B
P.Ws. 7 to 10, 12, 14, 17 and 18 on the side of the appellants
and of R.Ws. 1 to 6 and 22 on the side of the respondent. P.Ws.
7 to 10 are official witnesses while P.Ws. 12, 14, 17 and 18 are
private individuals. Similarly, R.Ws. l to 4 are official
witnesses while R.Ws. 5, 6 and 22 are private individuals.

Tara <..'hand (P.W.12) is one of the appellants. He was the
c
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 a,nd thereafter he was arranging the voters in the queue. D
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.
E
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 counterfoils of
the ballot papers. Amar Singh (P.W.17), appellants' polling
agent, Mangal Singh (P.W.18) and Basti Ram were present. When
Mangal Singh (P.W.18) protested, the respondent's Sikh companion
F
caused injury to him with his sword at the respondent's instance.
When Basti Ram raised objection to the behaviour of the
respondent and his companions he was injured with the butt of a
gun. The police-men who were present in the polling station.did
not intervene but some time later the people of Kalaka village
and some other police personnel arrived.Then the respondent and
G
his companions fled away, abandoning two motor-vehicles at the
spot. The Deputy Commissioner (P.W.7) and the Returning Officer
(P.W.10) came there one hour later. P.W.7 ·interrogated the
polling staff and tape-recorded their conversation. The polling
was stopped for over one hour and many peopel got frightened and
went away from the polling station without casting· their votes.
H
P.W. 12 has admitted in his cross-examination that he had
462 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A canvassed for the Congress(l) candidate for d.ve to ten days
prior to the date of poll and had worked as polling agent of
Congress (I) cand.i.dates even earlier. He claims to have reported
to the police after the completion of the poll and has stated
that the police did not sead for anybody. Ile has also stated
that he did not see A_iit Singh son of Rao Birendra Singh at
B Kalaka during the poll. He has denied the suggestion that the
Congress (I) worker• . beat the respondent's pollin:; agent, Tula
Ram and drove him out of the polling station about one hour of
the coiJID.encement of tht! poil.

Amar Singh (P. W.17) of Kalaka was the polling agent of
Sumitra Devi alongwhh P.W.12. He claims to have taken over as
C polling agent from Tara Chand (P.W.12) one hour after the
colll!llencement of the pell. He has stated that at about 10.30 a.m.
the respondent came inside the polling station accompanied by 3
or 4 personB. lhe respondent was amed with a rifl" while one of
his companions had a sword and the ot~er had a pistol and the
rest sticks. The respondent asked P.W.17 and the polling staff
to stand aside and directed his companions to poll votes.
D Thereupon the respondent's companions took the ballot !"'Pers and
affixed thumb impressions and m.7rkcd the ballot papers and put
them into the ballot box. When P.W.18 objected to the high
handed behaviour of the respondent his Sikh companion thrust the
sword at Mangal Singh (P.W.18). When Basti Ram also rafaed
objection the respondent gave him a thr11st \{ith the butt of a
E rifle. P.W.ll and others who were J.n the polling station were
pushed outside. The police""'1en who were inside th~ JJOlling
station did not interfere. Some time later the people from
Kalaka village anci sorn.e police personnel arriv·ed and thereupon
the respondent and his companio:.lS left the place. P.W.17 and
others detained two motor-cycles of the respondent's party and
F caught hold of two of the £1.eelng perso!lS and produced- the motor
cycles before P.W.7 who caine there alongwith P.w.10. P.W.17 has
deni.ed in his cross-examinatlon that Ajit Si!lgh .son of Rao
Birendra Singh visited the Kalaka Palling st.ation. He has denied
the suggestion that he and ether Congress (I) supporters beat
Tula Ram and drove him Ollt of the polling station and that he has
G given false evidence be.ing a sympathiser of the Congress (I)
party. fungal Singh (P.W.18) of Kal.ab has stated in his
evidence that when he was in the polling station and his parti-
culars were being checked before he could cast his vote the
respondent armed with a gun and accompanit!d by 3 or 4 persons,
one of them armed with a pistol and the other with a sword and
H the r~st with lathis came inside the polling station. The
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 463

A
respondent asked P.W. 18 and others who were in the polling
station to stand aside under threat of being killed otherwise.
When P.W. 18 objected to the repondent'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 B
who was behind R.W. 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 him
companions ran away. P. W. 18 and others informed P. W. 10 and the
police about 'what happened. P.W. 18 has admitted in his c
cross-examination that he had canvassed for the Congress (I)
candidate but he lias denied the suggestion that he ,has always
been helping the Congress (I) Party and has therefore given false
evidence.

Hari Singh (P.W.8) who was a teacher in one of the Ahir D
Educational Institutions was the Presiding 0ff icer at the Kalaka
polling 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 persons,
carrying a small gun with him while one of his companions was
carrying a pistol and another a sword and the others sticks. 'The E
respondent who appeared to be in a rage pointed the gun towards
P.W.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 26
ballot papers and marked them in favour of the respondent and put
them into the ballot box. They put their thumb-impressions on
F
the counter-foils of the ballot papers. There was Mise outside
when the respondent and his companions were inside the polling
station. The respondent and his companions went out the polling
station after 25 or 26 ballot papers had been put into the ballot
box as stated above. Soon after the respondent and his companions
left the place a Sub-Inspector of Police came there. P.W. 8 was
G
writing the report when P.Ws.7 ar.d 10 accompanied by the Superin-
tendent 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 Connnission of India. P.W. H
8 had deposited Ex.P-5 along with the other records iil the
Election Office. He has stated the Ex. P-5 was· prepared by him
...
464 SUPKEMC COURT liliPUKTS [l~85j SUPP.2 s.c.R.

A
and that it is correct. In his cross-examination he has stated
that he aoes not know if the High School run by the Ahir
b:ducation Board where he was employed since 1972 does or does not
belong to Rao Birendra oingh. 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 inti;nidation of
voters and other persons except crossing it and has stated that
it is b(;!cause he wa's 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
dated 19.5.1982 had been registered by Dharam Pal (P.W.9)
c Assistant Sub-Insp~ctor of police on 19.5.1982. Suffice it to
say at present that reference has been made in Ex. P-5 to the
respondent putting pressure on the polling staff and getting 25
or 26 bogus votes pol.led in his favour when there was a lot of
noise and commotion in the polling station from 10.30 to 11.30
a.m. as a result of which the polling had stopped. In his report
the police also P.w. 8 has stated that the respondent armed with
D a pistol came inside the polling station alongwith four or five
of his companions armed, one of them ">Tith a sword and the others
with sticks and hurled abuses and forcibly polled about 25 or 26
ballot papers at gun point on account of which he could not stop
them from doing so. The Assistant Sub-Inspector of police
(P.W.9) who had been posted at Sadar Rewari police station on
E
19.5.1982 has deposed about the registration of FIR No. 103 of
1982 on that day on the receipt of a rukka from Sub-Inspector,
!Jeep Chand. He has stated that the FIR Ex.P-6 is in his
hand-writing and that it is correct according to the material on
the basis of which it has been registered. He has not been
cross-examined about the registration of FIR No. 103 of 1982
F
dated 19.5.1982.

Bala Bhaskar (P.W.7), the Deputy Commissioner of
Mohindergarh was District Election Officer for the election to
the llaryana Legislative Assembly held in May, 1982. He has
stated that whe.n he was travelling by car at about 10.30 a.m.
G between Monodola and Zainabad villages in the course of his
visits to some of the polling stations in the Rewari Constituency
on 19.5.1982 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. P.w. 7 reached Kalaka polling station at 12.30 p.m.
H after instructing the police over the wireless to take action on
RAM SlNGli v. COL. RAM SINGt! [VAIWJARAJAN, J • J 465

that complaint of the respondent. When he reached Kalaka polling
A
station he received oral complaints. about the detention of a
motor-cycle belonging to the wortters of the Congress (J) party.
lie went inside the polling station and tape-recorded the
conversations with the officers in Ex.P.W. 7/1 of which Ex.P-1 is
the transcript prepared under his supervision. lie has stated
that he compared the transcript Ex.P-1 with the original
B
tape-record and found it to be correct 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
c
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
D
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 Govern-
ment and that the tape-recorder remained with him all the time
and the tape-recorder alld 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
E
though he had made several reports to the Election Commission and
other Election Authorities before and after the election with
which we are concerned in this appeal he had not made any report
against P.w. 7.

Shri Krishan (P.W. 10) was the Sub-Divisional Officer,
Rewari and Returning Officer for the Rewari Constituency in the F
election held to the Haryana Legislative Assembly in May, 1982.
In the cour.se of his tour of the Constituency after 10. a.m. on
19.5.1982.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 alongwith some other persons
G
intimidated the polling staff and the public at that polling
station. He was with P.W. 7 when he reached Kalaka polling
station and he found the polling at ~ stand-still at that time.
When he reached Kalaka polling station the Station House Officer
of Sadar Rcwari was present there alongwith a Head-COnstable and
some other police personnel. The Deputy Commissioner (P.W.7)
H
conducted an enquiry and intefrogated the polling staff and the
466 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A pol ice personnel and t:ape-r.ecorded their conversation. One of
the polling offlcers told P.W. 10 that the polling agents were
turned out by the responden~ and his companions and that a bundle
of ballot papers was taken away and the ballot papers were marked
and put into the ballot boxes and that the voters who were in the
polling booth were turned out. He found two motor-cycles
B stranded near the polling station. It is seen from. his evidence
that he was transferred from the Rewari Sub-Division on 1.6.1982
and that a file had been handled in a way different from the one
in.which it had been handled until he handed over charge of his
office. He has denied the suggestion that the file was created
in a particular manner by insertion of some papers for fabricat-
ing evidence in favour of the appellants. It has to be noticed
C in this connectlon that the respondent had complained Ex.R. 7
dated 4.5.1982 that P.w. 10 is married in the locality and was
interfering with the election.

On the other hand, it is the evidence of Roop Shand (R.W.l)
who was Steno-Typist in the office of the Project Officer,
Agricultural Department in Haryana and the alternate Presiding
D Officer in Kalaka polling station on 19.5.182 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 respon-
dent's polling agent Tula Ram and that Ajit Singh's companions
pushed Tula Ram out of the polling station. Ajit Singh remarked
E 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.l 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
F ballot box for about on hour and left the polling station there-
after. 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. ~ereupon p.w. 8 assured the resondent that he
G 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 gather.ed at the
polling station and proclaimed that they would poll votes
forcibly. When R.W. 1 and others resisted and collected the
voting material those persons beat the polling staff and snatched
H the voting material and in the struggle which ensued P.W. 8 was
RAM SINGH v. COL'. RAM SINGH [VARAllARAJAN, J.] 467

A
dragged upto the door of the polling station and was rescued by
the police-men on duty. Since the police present in the polling
station could. not pursuade the crowd to disperse pollirig was
stopped at about 10.15 a.m. and p·.ws. 7 and 10 arrived there
subsequently and arranged for the polling to restart after making
the electors to stand in a queue. He has denied that P.w. 7 B
asked for his name and profession and that he told him that he·
was Roop Chand and a Stenographer. He has stated that he asked
p.w. 8 to record the visit of Ajit Singh and his companions into
the ]lolling station and that P.W. 8 told him that he has recorded
it in his diary. The appe1Lants' case regarding forcible polling
by the respondent's companions at his instance and the c
tape-record was put to R.w. 1 and has been denied by him. He has
admitted that a few days after the election the police obtained
an affidavit from him on judicial stamp paper but he has denied
that it was done under pressure of the respondent.

Deen Dayal (R.W.2), a teacher was the polling officer along D
with Dhani Ram (R.W.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 him from there.
Ajit Singh asked his companions to beat R.w. 2 and others and
E
they were accordingly beaten, and P.W. 8 told them to allow Ajit
Singh's companions to do whatever they liked 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 P.w. 8 that he had been informed that
F
his polling agent had been beaten and that bogus votes had been
polled and protested against it to P.W.8. P.W.8 told the respon-
dent that whatever had happened and that he would conduct the
poll in a proper manner thereafter. About half an hour after the
respondent left the place the people of Kalaka village came.in a
crowd and entered the polling station and told the polling staff
G
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 balloe box from the crowd and placed
it at its original place. Soon thereafter a Sub-Inspector of
H
Police and some other constables ~\and tried to remove the
crowd from the polling station. About hiilf an hour later P.w. 10

'
468 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A crune there and left the place after talking with P.W. 8. P.W. 7
came there about half ao hour thereafter aod directed P.w. 8 aod
the polling staff to conduct the polling properly and polling
started again at about 12 noon. He had stated in his cross-exami-
nation that he did not make any report either to the police or to
P.Ws. 7 aod 10 though slaps aod fist blows had been given to him
B by the miscreaots 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 aod he answered in the affirmative.
He has stated that P.W.7 talked only to P.W. 8 and to no other
polling staff and did not tape-record aoy conversation in his
presence and that he does not know if P.W. 7 had talked with the
police constable who was posted at the polling station. He has
C denied that Ajit Singh had not come to the polling station at all
aod that no incident of the kind stated by him took place in the
polling station.

Mohinder Singh (R.W. 3) who was on duty as a police
constable at Kalaka polling station on 19.5.1982 has stated that
about half an hour after the polling started at 7.30 a.m. he
D heard shouts that Ajit Singh had come aod saw Ajit Singh, armed
with a pistol, coming in to the polling station along with 15 or
20 persons and thac inspite of the fact that he obstructed 2 or 3
compaoions of Ajit Singh pushed the respondent's polling agent
out of the polling station and startd beating him and he rescued
him. He also stated that he does not know what Ajit Singh and
E his companions did inside the polling station where. they remained
for about: 30 to 45 minutes aod that the respodnent 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
F persons crune from Kalaka village and entered the polling station
forcibly and snatched the ballot boxes after beating the polling
staff and they were turned out of the polling station by
Sub-Inspector, Deep Chand and some police constables who arrived
there some time later. He has stated that P.W. 10 came there
about 30 or 45 minutes thereafter and left the place after
G talking with P.W. 8 and that P.-W. 7 arrived there about 30 to 45
minutes after P.W. 10 left the place and talked to the polling
staff and arranged for the polling starting again at about 12
noon. He has denied in his cross-examination that e.w. 7 had any
talk with him in the polling station and has stated that he did
not make any report about the incident or the treatment meted out
H to him by Ajit Singh and his companions though the respondent's

•
RAM S'.:NGii v. COL. RAM SINGH [VARADARAJAN, J.] 469

polling agent was bleeding and hfa clothes were torn. He has
A
denied that the voice recorded in the tape (Ex.P.w. 7/1) put to
him is his voice and also that P.W. 7 int:errogated him and he
made a statement. The appellants's case of forciHe polling by
the respondent's. men was put to R.W. 3 and has been denied by
him.
B
The evidence of R.W. 4 is more or less the same as that of
K.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 c.ross-e.X8J.Ilination that
p.w. 8 had some conversation with ·p.ws. 7 and 10 but •he has
c
denied that the respondent came to tne 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.
D
RamKrishan (R.W. 5), the brother of the respondent's
poEing 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 E
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
(R.W. 3). He went with his brother by his scooter to Rewari and
reported to the respondent about the incident and leaving Tula F
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 and left the place 5 or 7 minutes
later for Rewari.. He has stated in his cross-examination that
both himself and his brother Tula Ram bled from different parts
of the bodies because of the injuries sustained by them and that G
they did not however get themselves medically examined or make
any complaint to any authority because there were only abrasions
from which there was some bleeding. It is seen from his evidence
that Tula Ram who has not been examined is alive and is in
service as a Clerk in some department at Chandigarh where the
election petition was tried. H
470 SUPREME COURT REPORTS (1985] SUPP;2 s.c.R.

A Suresh (R.w. 6) has statea that when he reached Kalaka
polling station at 8.30 a.m. in May, 1982 Ajit Singh, armed with
a revolver, call>! there with 40 to 50 persons and went inside the
·polling station with about lS to 20 persons. The respondent's
polling agent Tula Ram was dragged out of the polling station and
beaten. When R.w. S rushed for his help he too was beaten and
B 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 S or 6 minutes.
The appellants' case of forcible polling by the respondent's men
had been put to R.w. 6 and denied by him •. He too has stated in
his cross-examination that P;ws. 7 and 10 came to the polling
C 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.

The respondent R.w. 22 has stated that when he was in his
house at Rewari on 19.S.1982 after deciding not to go out of the
house on that day R.w. S and his polling agent Tula Ram came
D there at 8.45 a.m. from Kalaka polling station with their clothes
tom and appearing to have been beaten badly and told him that
Ajit Singh accompanied by SO 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. S at
about 9.lS or 9.30 a.m. on that day. Leaving his car at some
distance he walked to the polling station and found SO 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. S and Tula Ram to his notice. After P;w. 8 assured him that
nothing of that sort will be allowed to happeh in the remaining
part of the day he returned from Kalaka 7 or 8 minutes later and
F sent a written report to the police ab.out 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 appropri-
ate action was expected to be taken soon. He has further stated
that in his letter Ex. R. 7 dated 4.S.1982 he requested for the
G appointment of an observer because of official foterference and
had stated that p;w. 10 was married in that area and was inter-
ferring in the election. He has stated in his cross-examination
that FIR No. 103 of 1982 was connected at a later stage at the
instance· of Rao Birendra Singh. He was the Speaker of Haryana
Legislative Assembly until the first meeting of the newly consti-
H tuted Legislative Assembly was held after the election held on
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 471

19.5.1982 and after having succeeded in the election as a A
Congress (J) candidate he joined the Congress (I) Party and is
now the Tnmsport Minister. He has admitted that he has not made
any 1n~ntion in any of his complaints sent to the Chief Election
Commissioner and other election authorities pd.or to 19.5.1982
that P.w. 7 was acting in any way against him in a prejudicial
manner. He has admitted that he has not stated in his written B
statement that he complained to the police in writing Rbout the
incident in Kalci<a polling station and had sent copies thereof to
the election Commissioner and P.w. 7. He has stated that he did
not make any complaint naming Ajit Singh specifically about the
incident at Kalaka because the picture was not clear to him at
that time and .not because such an incident never happened. The c
appellants' case of bodth-capturing and bogus polling by the
respondent in Kalaka polling station had been put ~o R.W. 22 and
denied by him. The tape-record (Ex. P.w. 7/1) was played before
him and he has stated that it does not contain his voice and that
it is rather the voice of Rao Birendra Singh.
D
The oral evidence of R.Ws. 1 to b 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 R.w. 22 that R.W. 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 indulged in E
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-manouevered and it could be gathered from the fact that F
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 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 G
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 H
472 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 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 1 s witnesses that there was forcible
polling at the Kalaka polling station in the morning of 19.5.1982
B 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.·

Under instruction 74 of Instructions to Presiding Officers
issued by the Election Gomnission of India, extracted above, the
c 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 (P.W. 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
D
completion of the poll and he has to mention therein all the
important events. Even the alternate Presiding Officer (R.W. 1)
has stated in his evidence that the Presiding Officer (P.w. 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.
E
and so on upto 4.30 p.m. and that in the disputed period from 10
a.m. to 12 noon only 51 votes were polled. In column 21 it is
stated that the polling was interrupted and disrupted by rioting
and open violence and that from 10.30 a.m. to 11.30 a.m. the
respondent put pressure on the polling party and got 25/26 bogus
votes polled in his favour and there was a lot of noise and
F
conmotion outside. In column 22 relating to the question whether
the poll was vitiated by any ballot paper being unlawfully marked
by any person and deposited in the ballot box it is stated that 4
or 5 persons who came with the repondent snatched ballot papers
and forcibly put them into the ballot boxes. The Presiding
Officer (P.W. 8) who has deposed about the incident has stated in
G
his evidence that Ex.P.-5 is the diary which he submitted after
the poll, that it was prepared and signed by him and is correct
and that he deposited it along with the other records in the
election office. As stated earlier, what has been elicited in his
cross-examination is that apart from crossing column 20(E)
relating to intimidation of voters and other persons he has not
H
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 473

mentioned anything in that column and that he .failed to fill up A
that column fo full because he was very much perturbed at that
time. It has not been suggested to P.w. 8 that he had prepared
Ex.P-5 later under the pressure and. influence of 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 r'spondent. Therefore, it is not known on what basis the B
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 C
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 D
by Inatruction 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
witnesses exsniined on the side of the appellants who have dei>osed
about the first part of the incident in the Kalaka polling
station. E

The next contemporaneous document corroborating the oral
evidence of P ;w. 8 is the copy of the report of P. W. 8 to the
police appended to FIR No. 103 of 1982, E.~.P-6 dated 19.5.1982,
prepared by the Assistant Sub-Inspector of Police, P.w. 9 on
receipt of a rukka from the Sub-Inspector of police, Deep Chand. F
P.W. 9 rnlS 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, P.W. 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 corro-
b<irating the evidence of P.W. 8 about the incident in Kalaka G
polling station on the ground that the original report of P.w. 8
to the police had not been summoned by the appellants. It is no
doubt true that the original had not been summoned by the appel-
lants before P.ws. 8 and 9 deposed about Ex.P-6 in their
evidence. P.W. 8 has stated in his evidence that when he was
writing the report soon after the Sub-Inapector of police came to H
the polling station after the respondent and his companiona had
SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A left the place, P.Ws. 7 and 10 acompanied by Superintendent of
police came there and that after completing that report he got it
signed by the polling officials and handed it over to the police
officer and he recorded his statement. It is stated in the copy
of P.w. 8's complaint to the police appended to Ex.P-6 that at
about 10.30 a.m. when the polling was going on smoothly the
B reapondent came into thepolling station, armed with a small
pistol and accompanied by 4 or 5 persons, one of them armed with
a sword and the others with sticks, and hurled abuses and
forcibly polled about 25/26 ballot papers at gun point on account
of which P.w. 8 could not stop them from doing so. He also stated
that the polling staff was threatened with danger to their lives
and, therefore, they kept standing there for some time and that
c the companions of the respondent dragged the polling agent (P.W.
17) of Sumitra Devi and appropriate action may be taken by the
police. It is seen from the record that the appellants had taken
steps to summon FIR No. 103 of 1982 dated 19.5.1982 and the Head
Constable of Sadar Rewari Police station to prove the incident at
Kalaka. The record further shows that the respondent also had
applied for summoning the orders of Court disposing of FIR No.
D 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 Hurthal 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 FIRs.
But subsequently he filed CMP 31 (E) of 1983 for substituting
E another person in the place of Inspector Kedar 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 4l(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
F 25.2.1983. Thus it is seen that the appellants who had no 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 the police
station had later taken necessary steps to summon the original
G complaint as also to recall P.W. 8 for deposing about that fact.
In these circumstances, I find that the necessary foundation must
be held to have been laid for adducing secondary evidence by way
of the copy appended to FIR No. 103 of 1982 (Ex.P-6) and that the
appellants are therefore entitled to adduce secondary evidence of
the contents of that complaint. The complaint of P.W. 8 to the
H police given :lnmediately after the incident was over and soon
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 475

after the arrival of the police personnel and the officials P.Ws. A
7 and 10 and the Superintendent of Police is another contempora-
neous document and a valuable piece of documentary evidence
corroborating the evidence af p;w.s and other witnesses examined
on the side of the appellants to prove the first part of the
incident in t.he Kalaka polling station.
B
The third piece of documentary evidence let in by the appel-
lants for proving the first part of the incident in the Kalaka
polling station is the tape-record (Ex.P;w. 7/1) of Which Ex. l"-1
is a transcript prepared under the instructions and mostly in the
presence of p;w. 7 by his Stenographer. p;w. 7 haa stated in his
evidence that inside the polling station at Kalaka · he C
tape-reorded the version given by the officers about the incident
in that polling station in Ex.P;w. 7/1, and he compared the
transcript (Ex.P~l) 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 D
clear and audible. He has also stated that the tape-recorder
which had been supplied to ' him by the Government, the tape
Ex.P;w. 7/1 and the trans~ript 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 to why he retained the
tape, the tape-recorder and the transcript in his custody without
depositing them in the election office. Therefore, :10 adverse E
inference can be drawn against p;w. 7 or the appellants from the
fact that the tape, the tape-recorder and the transcript had not
been deposited by p;w.7 in the election office. No suggestion has
been made to P; W. 7 in cross-examination that he had in any way
tampered with the tape-recrod (Ex.P;w. 7/1) and he has stated in
his examination in chief that a portion of the tape relating to F
the incident at Burthal Jat polling station has been erazed
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 erazed by his own voice inadvertently on the same day G
and (2) that the authenticity of the transcript (Ex.P;l) 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
insl.de 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
476 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 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 keep out. In R. v. Robson (supra) in which reference
has been made to R. v. Maqwd Ali (supra) tape-recording had been
B held to be admissible in the case in which the accused was
charged with corruption, rejecting the plea of the defence that
i t was inadmissible inter alia because in many places it was
un-intelligible thoug~a.....--rlowever not contended that the
tape-recording was as such inadmissible in evidence of what was
recorded on it.

c It is clear from these and the other decisions of this Court
ref erred to supra that tape-recorded evidence is admissible
provided that the originality and the authenticity of the tape
are free from dobut. In the present case there is no valid reason
to doubt them. In Shri N. Sri llama Reddy etc. v. Shri v.v. Girt
(supra) referred to above a bench of five learned Judges of
this Court has held that the contemporaneous dialogue
D tape-recorded in that case formed part of res ges tae 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 1
where of reads thus:

E ••A is accused of the murder of II by beating him. What-
ever was said or done by A or II or the by-standers at
the beating, or so shortly before or after it as· to
form part of the transaction, is a relevant fact."

The following passage in regard to incidents forming part of
F the ~ gestae is found in para 509 of Hals bury' s Laws of
England lYol. 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 sence that
G they closely accompany and explain that fact• In
testifying to the matter in issue, therefore, witness-
es must state them not in their barest possible form,
but with a reasonable fullness of detail and circum-
stance (g). These constituent or accompanying inci-
dents are said to be admissible as forming part of the
H res gestae (h). When they consist of declarations
RAM SINGH v. COL. RAM SINGH [VAl<ADARAJAN, J.j 477

accompanying an act they are subject to three qualifi- A
cations; (1) they orust 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
(i) though this is subject to apparent exceptions in
the case of continuing facts (k); (2) they IID.lSt relate B
to and explain the act they accompany, and not
independent facts prior or subsequent thereto (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)."
c
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 recor-
ded 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 D
recorded in the tape. It is true that he has admit~ed 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 more 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 E
voice of even P.w. 7 in some portions of the conversation which
admittedly took place between him and P.\i. 7 in the office of
R.w. 10 at about 7.30 p.m. on 19.5.1982. It is seen from the
transcript that some one had answered the question about what his
name and number were and that one Mohinder Singh had answered
saying that his name and number were Mohinder Singh and 498 which F
tally with those of R.W. 3. In the answer to question as to how
many persons came inside the polling station Mohinder Singh had
stated that four persons came inside and 20 or 30 persons were
remaining outside ·and there were also 5 or 6 vehicles. In answer
to the question whether he had seen arms or amlID.lnitions ·iD the
hands of those persons who stood outside and of those four G
persons who entered the polling station Mohinder Singh had stated
that perhaps Colonel Sahib, referring to the respondent, was
armed with a gun while some persons were armed with swords and
some 2 or 3 persons were armed with lathis. It is further seen
that in answer to the question as to what he was and what was
his name one Ro,op Chand informed the questio~ that he was Roop H
Chand and a Stenographer in the Project Office of the Agricul-
tural Department in Haryana. These particulars tally with those

l
478 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A of R.W. 1. It is seen from the tape that P.W. 17 had also
answered certain questions saying inter alia that he was Amar
Singh, polling agent of the Congress (I) candidate and that there
were 5 or 6 vehicles with a number of persons in them. It is also
seen from the tape that during the course of conversation between
the respondent and P.w. 7 at the office of P.w. 10 the fact that
B P.W. 7 had gone to Kalaka polling station immediately after the
respondent and others left the place and that he got the
statements 'tape-recorded there was mentioned by P.w. 7 to the
respondent. In these circumstances great reliance has to be
placed on the tape (Ex.P.W. 7/1) and its contents not only for
corroborating the evidence of P.Ws. 7 and 8 to the extent they go
but also as res gestae evidence of the first part of the
c incident. The learned trial Judge was not justified in rejecting
the tape- record (Ex.P.W. 7/1) and the transcript (Ex.P-1). It
must be remembered that the respondent who had openly disowned
any art of the tape as containing his voice and had, on the
other hand, gone to the extent of saying in the trial Court that
it rather contained the voice of Rao Birendra Singh has admitted
in this Court portions of that tape as being in his voice and
D that he has stated 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
E 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 direc-
ted 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
F Congress (J) workers had polled some bogus vo.tes 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
G 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 and he
thereafter went to Burthal Jat. This report submitted by P.W. 7
some time after the results of the poll were announced corrobo-
rates the evidence of P.W. 7 about what he did at the polling
H station soon after he went there on receipt of a wireless message
about the polling of bogus votes in favour of the resporxlent.
RAM SINGH v, COL. RAM SINGH [VARADARAJAN, J. J 479

With respect to the office which he holds, the respondent, A
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 arid that
the said fact could be gathered from the fact that whereas
Sumitra Devi had obtained 484 votes he had obtained only 53 votes B
in that polling station. The only suggestion made to P.Ws. 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 came armed with some armed companions and beat
R.w. 5 and Tula Ram and dragged them out and that they forcibly c
polled bogus votes. Such a case was projected by the respondent
only after the respondent started to let in oral evidence on his
side after the appellants had closed their evidence. In these
circumstances, when questioned as to why he had not made any
complaint naming Ajit Singh specifically for the incident at
Kalaka R.w. 22 has stated in his evidence that it is not because D
such an incident never happened but because the picture was not
clear at that time. It is impossible to accept this explanation
of R.w. 22, for the polling took place on 19.5.1982 and the
respondent filed his written statement in the election petition
long thereafter on 14.9.1982. If, as the respondent would have
it, Tula Ram and R.W. 5 came to his residence at Rewari in the
morning of 19.5.1982 and informed him about the incident at the E
Kalaka polling station arid thereafter he went there and complain-
. ed to P. W. 8 about it, he should have come to know about the
details of the incident before he filed his written statement
long thereafter on 1.9.1982. If by 14.9.1982 the picture of what
happened at the Kalaka polling station 19,5.1982 was not clear it
is not known how it would have become clear only after appellants F
had closed their evidence and just before the respondent 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. G

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 I!

.,
.
480 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 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
B 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 with the very sal1!e
instrument by which it was recorded what R.W. 22 could have said
was that he cannot say whether it contains his voice but he could
not have gone to the extent of saying that it does not contain
his voice but it rather contains the voice of Rao Birendra Singh.
c This also shows that the evidence of R.W. 22 is not reliable.

In his croas examination in this Court R.w. 22 has stated
that he was the Speaker of the llaryana Legislative Assembly until
the new Legislative Assembly met after the elections in May, 1982
and could therefore have summoned any officer to his off ice and
he did not go to the police station on 19.5.1982 and he is quite
D 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 hl.s written statement that he did not
go to the police station on 19.5.1982 are both correct and that
he .would emphsize that he.did not go to the police station et all
E 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 own 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 SUIIlliloned any police officer to his
office. However, it is his own evidence that he did go to the
F office of P.W. 10 to meet P.w. 7 at about 7 or 7 .30 p.m. on
19.5.1982. This also shows that the evidence of R.W. 22 is not
reliable.

R.W. 22 ha• admitted the voice in the tape that when P.W. 7
asked him about when he received the message about the incident
G at the 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
H had been beaten. However, he would say in his evidence that he
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 481

A
went to Kalaka only ouce on 19.5.1982 and that it was about 9 or
9.30 a.m. There is abundant unimpeachable evidence on the side of
the apppellants to show that the respondent, armed with a rifle,
visited Kalaka polling sation accompanied by some armed persons
at about 11.30 a.m. or 12 noon, and indulged in the polling of
bogus vutes. 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 B
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 irt 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 c
incident which took place in that polling station. It is, there-
fore, 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. D

The written statement is silent on the quesion 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 had not
gone out of his house on 19.5.1982. This portion of the E
additional or amended written statement which had not been
received by the Court was put to him in cross examination by Mr.
Sibhal. R.w. 22 has 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 supoorters that he was going to succeed F
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 statemertt and had no sufficient time to read it properly
but that he did not give specific instructions to his counsel on
that matter and was told by his supporters not to move out of his
house on 19.5.198i and that the fact that he went to Kalaka G
village on 19.5.1982 is not mentioned in that amended written
statement though inspite of deciding not to move out of his house
on that day he did go to Kalaka village on that day. This also
shows that the evidence of R.w. 22 is not reliable.

In. the election petition it is alleged in relation to the H
incident at the Burthal Jat polling station that Anil Kumar and
Satbir Singh are the relatives of the respondent. There is no
482 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A denial much less any spefic 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 admit-
ted. Therefore, under 0.8 r. 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, 0r 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
c in its discretion require any fact so admitted to be
proved otherwise than by such admission."

But during the trial R.W. 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
D in 1962 and that he does not known if Anil Kumar is the brother
of his brother-in-law, Surinder Kunar 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. lie 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
E
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
F
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 ha.d 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
G
by P.w. 7 on his repeated requests for the release of Anil Kllllldr
and Satbir Singh he told P.W. 7 that they were his close
relatives, for he ha.d admitted in his evidence in this Court that
he would have left no stone unturned if his partymen and workers
were harassed even though they may not be his relatives. It
appears from this portion of the evidence of R.W. 22 that it
H would have been unnecessary for him to claim Anil Kunar and
RAM SINGH v. ~OL. RAM'SINGI! [VARADARAJAN, J.] 483

Satbir Singh to be his close relatives merely to prevent them A
from being harassed by the police after their arrest on
19.5.1982. He has stated in his evidence in this Court that
because he was told by his workers that two of his relatives had
been arrested and their identity was not clear to him when he had
the conversation with P.W. 7 in the office of P.W. 10 on
19.5.1982 he referred to them in the course of his conversation
B
as his ~elatives. He has also stated that it is only after P.w. 7
mentioned their names and identity that he new that they were
Anil Kumar and Satbir Singh and that they were not his relativ-.s.
In the subsequent portion of his evidence he has stated that he
had never deposed in this Court that P.W. 7 mentioned the name of
Anil Kumar to him. In an other portion of his evidence in cross
eXlll!lination in his Court he has admitted that the statement in
c
that conversation that he told P.W. 7 that Anil Kumar and Satbir
Singh were his relatives. is correct. Thus, it is seen that R.W.
' 22 has given varying versions on the question whether Anil Kumar
and Satbir Singh were his relatives or not though he has
admittedly informed P.w. 7 in the course of his conversation with
D
him in the office of p,w. 10 on 19.5.1982 that they were his
close relatives. This also shows that the evidence of R.W. 22 is
not reliable.

The evidence of the private witnesses eXlll!lined by the
appellants to depose about the first part of the incident in the
Kalaka polling station is fully corroborated by the evidence of
E
the Presiding Officer (P.W.8) and received ample corroboration
from the evidence of P.Ws. 7 and 10. Their evidence is corrobora-
ted by the reliable and contemporaneous doctUnehtary evidence by
way of Exs. P-5, P-6 and the tape record Ex. P.W.7/1 which are
unimpeachable and also by what has been stated by P.w. 7 in his
report (Ex.. P-2) submitted by him to the Government some time
F
after the results of the election held in May 1982 were announc-
ed. Therefore, I reject the evidence of the respondent and the
other witnesses wilo have deposed on his side in regard to this
part of the incident in the Kalaka polling station and accept the
evidence of p.w. 8 and the other witnesses who have deposed
. about the same on the side of the appellants election petitioners
G
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
H
in the polling station with the use of force and got some ballot
papers marked in favour of the respondent polled forcibly by his
484 SUPREME COURT REPORTS [1985] SUPP-2 s.c.R.

companions in the ballot box and that they left the polling
A 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 :lncident. But it is not a material discrepancy.

I shall now consider the evidence relating to the second
B pa~t of the incident at the Kalaka polling station.

Mr. Sibbal did not press the case of the appellants regard-
ing the second part of the incident at the Kalaka polling station
in h.is 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
c 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 (P.W. 12),
Sheo Chand.(P.w. 13), Puran (P.W. 14), lnder Singh (P.W. 16) and
Mangal Singh (P.W. 18), on the side of the appellants. Gur Dial
who has been referred to in the election petition in this connec-
tion was tendered as P.w. 15 for cross-examination but he has not
D been cross-examined by the learned counsel for the respondent.
P.W. 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 a queue for the purpose of voting, the
respondent came there with 60 or 70 persons at about 10.30 a.m.,
E the respondent armed with a gun while some of his companions were
armed with swords, pistols and sticks. The respondent and his
companions threatened PWs. 14,15, 17 and others including Kesar
Lal wh., had come to the polling station for the purpose of
casting their votes and asked them to go away from there and they
consequently ran away from the polling station. Amongst the
F respondent's companions who did so P.W. 12 knows only Desh Raj
Krishan Lal and Ram Krishan (R.W. 5) of Kalaka and Balbir Singh,
~.aghubir Singh and Umrao Singh. P.W. 12 has not been seriously
examined on this portion of his evidence. What has been elicited
in his cross-examination is that he was the polling agent of
Congress (I) candidates even in the earlier elections and he had
G convassed for the Congress (I) candidate in the election with
which we are concerned for 5 or 10 days and that he reported to
the police after the .completion of the poll bnt the police did
not send for anybody on that complaint.

P.W. 13 has stated that when he was standing in the queue
H awaiting his turn for casting his vote after reaching Kalaka.
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J ·I 485

polling station at about 10 a.m. the respondent came there at A
about· 10 a.m.· alongwith 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 (R.w. 5) were armed 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. B
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 C
and had run aw~y had come again or not for castii:ig their votes.

P.w. 14 has stated 'that he had gone to the polling station
at about 10 or li 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 , D
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-examin4tion he has stated that about 15 or 20 persons were
standing in ·the queue when the respondent and his companions E
arrived at the polling station and that he cast his vote later at
about 3 p.m. after Calm prevailed all around. He has denied the
suggestion that he had given false evidence being a Congress (I)
worker.

Ishwar Singh (P.w. 16) the Lambardar of Kalaka village has ·F
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, accompariied by 3 or 4 persons
including Desh Raj and Krishan Lal (R.w. 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. G
also stated t.hat P.Ws. 13,14,15 and 17 were also standing in the
queue alongwith 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 H
there. There is abundant evidence on the side of the appellants,
486 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A referred to above, to show that when P.w. 7 and other officials
arrived after the incident in and at the Kalaka polling station
they folllld two motor-cycles abandoned at that place. P.W. 16 has
denied the suggestion that he has deposed falsely being the
supporter of the Congress (I) party.

B P. W. 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 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
c on accotmt of that reason.

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 on 19.5.1982 and scaring
the:n away under threat of violence against their person and
D thereby preventing them from exercising their electoral dght.
The evidence on the side of the respondent has been ref erred to
above in the discussion relating to the first part of the
incident at the Kalaka polling station and has been foWld 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
E by a c.ar with some of his men only at about 9 or 9.30 a.m. on
19.5.1982 could not be accpeted and that the respondent had
recelved 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
F unimpeachable evidence on the sl.de 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
G same village having been beaten and ·that he therea_tter indulged
in the acts alleged in the election petltion both outside and
inside the polling station at Kalaka. P. W. l who reached Kalaka
polling station soon thereafter received oral report about the
detention of a motor cycle belonging to Congress (JJ workers. In
these circumstances, l accept the evidence of PWs· 121 l3, lb and
H 18 referred to above and find· that the respondent came to the
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J • ] 487

Kalaka polling station at about 10.30 a.m. on 19.5.1982, armed ·A
with a rifle and accompanied by his companions some of whom "ere
armed with deadly weapons and that he threatened the electors who
were standig in the queue awaiting their turn for casting their
votes on account of which they ran away and he had thus interf er-
ed with the exercise of the electoral right of those persons.
There is some discrepancy in the evidence about the time of B
arrival of the respondent and his men. It is not a material
discrepancy.

About the incident at Burthal Jat polling station there i•
the evidence of P.Ws. 7, 9 and 10 who are official witnesses and
of Nahabir Singh (P.w. 26), Dharam Vir (P.w. 27), Thavar Singh c
(P.W. 28), Amir ChaDd (P.W. 29), Surjit Singh (P.W. 30), Raghubir
Singh (P.w. 31), Shamsher Singh (P.w. 32), Kishori Lal (P.w.
33), Ram Narain (P,W. 34) and Mam Chand (P.W. 35) on the side of
the appellants. There is evidence of Ravi Datt Sharma (R.w. 11),
Parbhati (R.W. 12), Ami Lal (R.w. 13), Sheo Chand (R.w. 14) and
the respondent (R.w. 22) on the side of the r~spondent. · D

p.w. 26 of Burthal Jat village was the polling agent of the
respondent himself and he had filed the form (Ex. P-16) dated
18.5.1982 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 p.w. 26 was not
prepared to go the whole hog to support the case of the appel- E
lants as regards the incident at the Burthal Jat polling station
but he has stated in his cross-t!Xalllination that when he went to
the polling station he saw Anil Kumar and Satbir Singh canvassing
votes ior 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 F
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 the Burthal Jat polling station that the
candidate for whom they were canvassing could not have been any G
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 bad gone to Burthal Jat polling station at 8 a.m. for H
casting his vote in the election held in May, 1982. The
488 SUi>REME COURT REPORTS [1985] SUPP.2 s.c.R.

A respondent came there at about 8 a.m. accompanied by 50 or 60
persons anrl 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
B 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 C•ther persons who came with the respondent went away with
him. In his cross-examination he has stated that the reapondent
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
c the turban of the respondent's Sikh companion and he has stated
that he cannot identity Satbir Singh. He has denied the
suggestion that he is a supporter of Rao Birendra Singh and his
sister and that the respondent did not come to Burthal Jat
polling station at all on that day.

P.w. 28 who belongs to Burthal Jat village has stated in
D his evidence that after he went to the polling station the
respondent came there accompanied 50 or 60 persons at . about 8
a.m, The respondent was armed with a small gun while nis
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
E cast in favour of the Congress (I) candidate and he was leaving
behind Anil Kumar and Satbir Singh alongwith 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 station
F at all on that day and that he has given false evidence.

P. W. 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
G about B a.m. and sent for his polling agents Mahabir and Udhey
Bhan and told them 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 alongwith 15 or 20
H per•cns who were found by P.W. 29 to be armed with sticks. P.W.
RAM SINGH ·1. COL. RAM SINGH [VARADARAJAN, J. j 489

29 was not permitted to cilst his vote earlier and he. therefore, A
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 that the respondent did not visit Burthal
Jat polling station on that day. B

p.w. 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 tn proceed to
the polling station for casting his vote Anil Kumar and Satbir c
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
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 ai: about 3.30 p.m. for casdng his D
vote and learnt that Anil Kumar and Satbir Singh had be~n
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 thi>t 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 a~l the elections and that E
he has given false evidence.

P.w. 31 who belongs to Burthsl Jat village has stated in
his evidence that when he went to the polling station at il a.m.
for casting his vote in the election with which we are concerned
he was accosted by Anil Kumar and Satbii Singh who were present F
there alongwith 20 or 30 persons armed with sticks about 25 yarqs
away frO!ll 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 he would vote for the candidate of his
own choice. In. view of the threat he went back to the village G
and came later for casting his vote at about 3. p.m. and learnt
that Anil Kumar and Satbir sir.gh 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 µe has given false evidence.
H
P.W. 32 is the Sarpanch of Burhtal Jat village. He was
admittedly the polling agent of Sumitra Devi. He has stated in
490 SUPREME COURT REPORTS [1985] SUPP.2 S.<::.R.

A 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 hJ.s own choice there was
an altercation and they started beating him and he was rescued by
B P.Ws. 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 parkeG there, and
the people who were in the jeep ran away when the police arrived.
He brought these facts to the notice of P.Ws. 7 and 10 when they
c came there and they took the jeep and the sticks into their
custody. Anil Kumar was sitting on the motor-cycle while Satbir
Singh was standing on the road-side when they confronted him as
stated above and their motor-cycle was taken into custody by the
police. In his cross-exaination it has been elicited that he did
not report in writing to P.Ws. 7 and 10 or get himself medically
examined or file any complaint in any Court against Anil Kumar
D and Satbir Singh. He has denied the suggestion that he had
strained relations with Satbir Singh because of his election to a
cooperative society and that he has given false evidence because
he was the (>')lling agent of Sumitra Devi.

p.w. 33 who is the chowkidar of Burthal Jat village has
E 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
F Assistant Sub-Inspector of police came there, and about 10 or 15
other per.sons who were with Anil Kumar and Satbir Singh ran away
on seei.ng the police after leaving behind a jeep and a motor-
cycle 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 tlme later. In his cross-examination he has denied that P.W.
G 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
suggestion that no incident at all took place in the village and
H that he had given false evidence under the influence of P.W. 32.
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 491
'
p.w. 34, the Lambardar of Kakoria village situate close to A
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 P,W. 32.
He and P.w. 35 and others intervened and separated them. Some
time thereafter a Sub-Inspector of police came and saw Anil Kumar B
and Satbir Singh exchanging abuses with P.w. 32 and he arrested
those two persons. P. Ws. 7 and 10 who came there later talked
with 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
meet Anil Kumar and Satbir Singh previously and that he does not ·C
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 uf the appellants.

PW 35 aon of Umrao Singh and Lambardar of l!urthal Jat
village was the polling agent of the Bhartiya Janata Party candi-
date in the last election of the Haryana Legislative Assembly. He
has stated that after he reachea 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
E
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 took Anil Kumar and Satbir
Singh into custody, and 10 or 15 persons who were left behind by
F
the respondent fled on seeing the police leaving behind a motor-
cycle and a jeep containing sticks and other weapons. PWs. 7 and
10 came there some time later and the motov-cycle and the jeep
were taken into custody by the police. In his cross-examination
he has denied that Ex.P-9 to which reference would be made a
little later contains his signature and he has stated that there
G
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 himaelf 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
H
evidence being a member of the opposite faction.
492 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A The Deputy Commissioner and Di.strict Election Officer (PW. 7)
has stated in W.s evidence that on th~ day of poll he proceeded
from l'-alaka polling stat.ion to Burhtal Jat polling stati.on
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 polUng station told W.m when he visH.ed that
ll place that nothing had hapjlened 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 villageo told PW 7 that Congress. (J) workers had come
in a jeep and tried to create trouble and that one of them ran
away whlle the police had detained two of those persons. PW 7
C interrogated those two persons and they then told him that they
had nothing to do with the jeep whose number he has recorded i.n
the tape Ex.PW 7 /1. PW 7 found some stl.cks ln the jeep and he
asked the police to take the jeep and the st.i.cks into their cus-
tody. Anil Kumar and Satbir SJ.ngh who had been attacked by the
villagers were found detained by the police. The Sarpanch of
llurthal Jat village (PW 32) made a complai.nt to him outside the
D Burt11al Jat polling station. PW 7 recorded the conversation which
he had with the Presiding Officer at the Burthal Jat polling
station but some portion thereof was erased by his own voice by
inadvertence. The respondent met PW 7 at about 7 p.m. in the
office of PW 10 and informed PW 7 about some incidents which had
taken place during the day and complaJned to W.m about them. Th"-
E conversation which he had with the respondent at that tlme was
recorded simultaneously in the tape (Ex. PW 7 /1) and he later
reported to the Secretary to the Government about the complaint
which the respondent made to him against the Superintendent of
Police. His stenographer prepared the transcript Ex.P-1 in his
office, most of it under his supervision and he was temporarily
F absent to attend to some other work, and he compared it with the
original tape and found it to be correct. The tape, tape-recorder
and transcript remained with him throughout and were not deposi-
ted by him in the record room and there was no possibility of
tampering. He had not created evidence in the form of the tape at
the instance of Rao Birendra Singh to har.m the respondent. Ex.P-2
G is the- copy of the report which he submitted about the incidents
which took place on 19.5.1982 as had come to his notice. In his
report Ex.P-2 eent to the Secretary to the Government·, PW 7 has
stated inter alia that when he went to Burthal Jat polling
station from Kalaka polling station he was told that a few
workers of the Congress (J) candidate had been detained by the
H villagers and he had conversat.lon with the Presiding Officer and
RAM SING!! v. COL. RAM SING!! [VARADARAJAN, J.] 493

the villagers and found a jeep with about 15 or ZIJ lathis in it
A
and directed the police to take the jeep with the lathis as also
the two workers of the Congress (J) candidate who were standing
near the jeep into custody.

The Returning Officer and Sub-Divisional Officer, Rewari
(PW 10) who went to Burthal Jat polling station along with PW 7
B
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 liurthal Jat village on
that day. As stated earlier PW 35 who is Mam Chand son of Umrao c
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. t:x.P-9 addressed by Mam Chand to PW
10 is to the effect that the respondent pointed .out ris gun at
D
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 simbol 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 prevented from exercising their electoral
right. There is no specific reference in this report to Atlil
E
Kumar and 5atbir Singh or to their arrest by i:he police at the
instance of PW 7. Ex.P-9 which was found in the file summoned
from the office of the Sub-Divisional Officer, Rewari had been
marked only through PW 10 and has been disowned by PW 35 who is
no doubt Mam Chand son of Umrao Singh. For want of proof Ex.P-9
could not be taken into consideration, . but the learned Trial
F
Judge has relied very heavily upon that document for disbelieving
the appellants' case regarding the incident at Burthal Jat poll-
ing station. lie was not justified in doing so.

The Assisfant Sub-Inspector of police (PW 9) who had been
posted at . 5adar Rewari police station has stated in his evidence
that at the instance of. Assistant Sub-Inspector Jagan Nath who G
returned to the police station at 3.30 p.m. on. 19.5.1982 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
H
Singh (PW 32) whereupon an Assistant Sub-Inspector of police
494 SUPPEME comcr REPORTS [1985] SUPP.2 s.c.R.

along with other intervened and separated them, that Anil Kumar
A 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 DEI>-3203 was also taken into police
cust•ody. PW 9 has not been cross-examined regarding Ex.P-8.
Ex.F·-28 is a copy of the judgment in the case registered in the
con.cerned FIR No.104 of 1982 dated 19.5.1982 under sections 107
B and 151 of Code of Criminal Procedure against Anil Kumar and
Satbir Singh. It is seen from that judgment that the Magistrate
after considering the circumstances of the case and hearing Anil
Kumar and Satbir Singh had come to the conclusion that the fight
took place between those two accused and the Sarpanch Shamsher
Singh in connection with polling of votes and that the incident
pursuant to which the fight took place was over and the accused
c persons belonged to different villages and there is no likelihood
of breach of the peace and therefore there is no necessity to
take any further action against them and he accordingly discharg-
ed them. Ex.P-27 is a certified copy of the calender dated
19.5.1982 relating to that criminal case registered 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
D contains allegations to the effect that the Assistant Sub-Inspec-
tor 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 responder.t, that when he told them that he le
E 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
F 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 beating PW 32 and they
were separated from PW 32 by and Assistant Sub-Inspector of
G police and others a case under sections 107 and 151 of the Code
of Criniinal Procedure was registered against them and a jeep
bearing number DED-3203 was also taken into custody by the police
on 19.5.1982, and it is admissible in evidence. The FIR corrobo-
rates the evidence of PW 32 and of some of the other witnesses ,
referred to above who have deposed about thts incident.
H
RAM SINGH v. COL. RAM SINGH lVARAllARA..JAN, J, J 495

On the other hand, RW 11 a lecturer in a Higher Secondary A
School at Rewari who was a polling office at Burthal Jat polling
station during the election with wl:u.ch 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 ref erred to above which show that on incident did B
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 section 107 and 151 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 res- C
pondent did not go to Burthal Jat polling station at all on
19.5.1982. It must also be noted that RW 11 has admitted in his
cross-examination that he could not have known what happened
outside the polling station because be was inside. RW 12 who cast
his vote in Burthal Jat polling station at 8 a.m. claims to have
remained at the polling station till about 1.30 or 2 p.m. and he D
has stated that neither the respondent nor anyone. on his behalf
came to the polling station and there was no quarrel inside or
near the polling station so :ong as he remained there. But in his
examination-in-chief itself he has admitted that PW 32 was stan-
ding about ~O kadams away from the polling station with some
people and he heard some altercation between them and that while
the altercation was going on some poi.ice personnel arrived at the E
spot and removed two persons who were not known to him. He has
further stated in his cross-eXamination that there was a jeep at
some distance away from where the Sarpanch (PW 32) and the other
persons had altercation, He has no doubt denied the suggestion
that lU or 15 other persons were with those two unknown persons
and they were armed with sticks, that the respondent came there F
and left those 15 or 20 persons along with those ·two unknown
persons and that t~1cse 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 G
he has stated in a portion of his examinatioi1-i11-chief that no
incident took place with in or outside the polling -station so
long as he remained there 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 H
people saying that the Superindent of Police removed these two
496 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 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 tree
by the road-side about half a furlong away from the polling
B
station. He has stated that he did not see the respondent passing
by that road in the direction of Burthal Jat village. His
evidence is not helpful to either of the parties as he has merely
stated that he had not seen the respondent passing by that road
in the direction of Burthal Jat village. It is not possible that
he would have closely looked into each and every vehicle which
passed by.that road to notice the respondent who appears to have
c been moving on that day by his car. RW 22 has stated that he did
not go to Burthal Jat village or send anyone of his workers to
that.village on 19.5.1982 but he remained in his house throughout
aft<!r he returned from kalaka on that day. It is not possible to
acce~pt his evidence that he had not sent any of his workers to
Burthal Jat village on the date of poll as i t is unlikely that
the candidate contesting in th.e election would not have sent any
D of his workers to that polling station. It is seen from the
aforesaid tape-recorded conversation be.tween PW 7 and RW 22 in
the office of PW 10 at about 7 or 7.30 p.m. on 19.5.1982 that the
respondent expressed his anxiety to get his relatives Anil Kumar
and Satbir Singh who had been arrested on that day by the police
released and that his evidence that Anil Kumar and Satbir S.ingh
E were not his relatives at all is totally unreliable for reasons
mentioned above in the discussion of the evidence relating to the
incident at Kalaka polling station. The evidence of R.W. 22 as a
whole is wireliable for the reasons already mentioned above.

Mr. Si bbal did not reply upon any portion of the tape
F relating to the conver~ation in liurthal Jat polling station but
he has relied for ~he purpose of the appellants' case in relation
to Hurthal Jat polling station upon that portion of the tape
which relates to the conversation between P.W. 7 and R.W. 22.in
the office of P.W. 10 at about 7 or 7.30 p.m. on 19.5.1982. The
fact that a portion of the tape-recorded conversation in Burthal
Jat polling.station got erased by P.W.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-recor-
der 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
H
recording at a particular point it is probable that what had been
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 497

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 conversa-
tion in liurthal Jat polling station got erased by his own voice
due to inadvertence.

The oral and docwnentary evidence regarding the incident at B
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. l? has
admitted that P.w. 32 who was standing about 80 kadams away from
the polling statlon was having an altercation with some people
and that even when the altercation was going on some police c
personnel arrived there arid they tock 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
persona about 120 kadams away from the polling station and soon
thereafter he heard people saying that the Superintendent of D
Police took away those two unknown persons. The nsmes 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 station and they have been alleged to be
the relatives of the respondent. The respondent has not speci-
fically denied the said allegation in his written statement but
during the trial he attempted to make it appear that they were E
not related to him. However, it has been found above that they
are related to him. Still the respondent who had shown his
serious concern to get them released from police custody on
19•5.1982 has not called those two persons as his witnesses to
rebutt the case of the appell8.nts. Therefore, as observed in
Cheima lleddy v. R.C.Rao (supra) in these circumstances an adverse F
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 G
the respondent and his witne$ses in regard to the incident at
l:Surthal 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 P.W. 32 and others as alleged in the election petition H
' as· a result of which they had to go away from the queue in which
498 SUPREME GUUKf llliRUKfS [1985] SUPP.2 s.c.R.

A they were standing awaiting their turn for casting their votes
though they had subsequently come to the polling station and cast
their votes.

Now l sha'll consider the respondent 1 s contention raised in
the written statement that the allegatlon that the respondent and
som~ of his armed companions entered the polling station and
br.::i11dished their guns at the Presiding Officer and ordered the
.it 11.=r polling staff and polling agents of various candidates to
stand still does not constitute any corrupt practice and t.hat the
allegat:lon that the polling agents Amae Stngh and Sueaj llhan weee
thr1~atened and turned out of the polling station does not consti-
tute 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) eead with section 8 and would not constitute
coeeupt peactice undee section 123(2) read with section 79(d) of
the Act. In support ·of his contention Mr. Rao invited this
Court 1 s attention to the decision in Nagendra Mahto v. 1be State
(supra) wheee i t has been held, as stated eadiee, that the
criminal revision petitioner before the High Court who had insis-
ted upon going into the room where the ballot papers were kept
though the Peesiding Officee had warned him to go out of the coom
and also attempted to put some ballot papers into the box of one
Nitai Singh Saedae was cightly convicted undee section 131 (1)
(b) and section 136 (1) (f) of. the Act. On the othee h~nd, Mr.
E Sibbal SJbmitted that casting bogus votes foecibly would amount
to corr11pt practice as it would indirectly interfere with the
electoral right of the voters whose ballot papers have been so
polled, whethee 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
F in Ram Dial v. Sant Lal and Otliers (supra) wheee,. as extracted
above, thls Court has held that while the law in England laid
emphasis on the usual aspect of the exe.rcise of undue influence,
under the Indian law what is material was not the actual effect
produced but the doing of such acts as were calculated to inter-
fere with the free exercise of any electoral right. According to
G section 79(d) of the Act 'electoeal eight' means the eight of a
person to stand or not to stand as, or to withdraw or not to
withdraw from being a candidate, or to vote or refrain fr.om
voting at an election. Sec~ion 123 (2) of the Act lays down that
"undue influence, that is to say, any direct or indirect inter-
ference or attempt to inter.fere on the part of the candidate or
H
RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 499

his agent, or of any other person with the consent of the
candidate or his election agent, with the free exercise of any A
electoral right ••••••. shall be deemed to be corrupt practice for
the purpose of the Act."

What constitute electoral of fences are detailed in sections
125 to 136 which fall under Chapter Ill of the Act. s.12s·relates
to promoting enmity between classes in connection with election. B
S.126 relates to prohibition of public meetings on the day
preceding the election day and on the election day. S.127 relates
to disturbances at election meetings. S.127A relate.s to restric-
tions on the printing of pamphlets, posters etc. S.128 relates to
maintenance of secrecy of voting. s.129 relates to prohibition of
Officers etc., at elections acting for candidates or to influence C
voting. s.130 relates to prohibition of canvassing in or near
polling stations. s.131 provides for penalty for disorderly
conduct in or near polling stations. S.132 provides for penalty
for misconduct at the polling station. s.133 provides for penalty
for 'illegal hiring or. procuring of conveyances at elections.
S .134 relates to breaches bf official duty in connection with D
elections.' s.134A prohibits Government servants from acting as
election agent, polling agent or counting agent. S.135 relates to
removal of ballot papers from polling station. S.136 relates to
other offences and p_enalties therefore, namely, fradulent deface-
meet or fradulent destruction of any nomination paper; fradulent
defacement, destruction or removal of any list, notice or other
document affixed by or under the authority of the returning E
officer; fradulent defacement or fradulent destruction of any
ballot paper or the official mark of any ballot paper or any
declaration of identity o.r 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, fradulently putting into any ballot box anything other F
than the ballot paper which the person putting the same is
authorised to put in; destroying, opening or oth~rwise interfer-
ing with any ballot paper; and fradulently or without due autho-
rity attempting to do any of the foregoing acts or wilfully aid-
ing and abetting the doing of any such acts. It would appear that
forcible marking of ballot papers removed from polling officers G
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. H
500 SUPllliME COURT REPORTS [1985] SUPP.2 s.c.R.

A Sibbal and hold that forcible polling of bogus votes. in the
circlUilStances and manner found in this case would constitute
indirect interference with the electoral right of the concerned
electors whether they be persons who had decided to cast their
votes in that election or those who had decided not to do so. It
is significant, in this connection, to note that after having
B been infonned about the forcible polling of bogus votes by the
respondent's Iilen at the Kalaka polling station P.w. 7 had
instructed the polling staff to issue tendered ballot papers to
any elector whose ballot paper had already been forcibly polled
who might come for the purpose of exercising his right.

I have referred to and discussed the evidence somewhat in
c detai.1 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 agree. 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 c.M.P.31 (E) of 1983 in the trial Court. He had cited the
D Observer (R.w. 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 R.W. 20 for that purpose and had called him only
for ttle purpose of production of some record without any oath
being administered to him though . in his tape-recorded
E conversation with P.w. 7 in the office of p.w. 10 on 19.5.1982
referred to above, he had admittedly asked P.W. 7 to get ever-
thing noted by P .w. 20 who was present there at that time. He
had thus denied to the appellants the opportunity to cross-
examine R.W. 20. The respondent had come forward with a new case
of alleged booth-capturing and forcible polling of bogus votes by
F Ajit Singh in the Kalaka polling station after the appellants had
completed the examination of their witnesses to whom no such
sugge:stion was made in the cross-examination. He had repeatedly
denied in his evidence that Anil Kumar and Satbir Singh who had
been arrested by the police at the Burthal Jat polling station on
19.5.1982 were his relatives though in his tape-recorded conver-
G sation referr.ed to above he had infonned P. W. 7 that they were
his close relatives and he had shown his anxiety to get them
released from police custody forthwith. He had neither cited them
nor called them as his witnesses 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
H
found to be ·wholly unreliable for reasons already mentioned. In
RAM SINGH v. COL. RAM SINGH [SABYASACHI MUKHARJI, J.] 501

these circumstances what my learned brother Fazal Ali, · J • has A
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 (l)(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 B
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 c
against. the returned candidate for', only in the case of a
returned candidate Parliament has provicled, in the interest of
purity in elections, for serious consequences of not only (1)
declaring the election void under section 100 (1) · ())) but also
(2) disqualification under section 8A of the Act by the President .
for a period not exceeding six years when a finding of corrupt D
practice is recorded against a returned candidate. For all the
reasons mentioned above I hold that the appellants have succeeded
in ~roving the two instances of corrupt practice pressed in this
Court and are entitled to succeed in this appeal. The appeal is
accordingly allowed with costs of Rs.5,000 payable by the
respondent-returned candidate.
E
SABYASAQ!I MIJKllAll.JI, J. 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
116A of the Representation of the People Act, 1951 which is in F
the nature of first appeal to this Court, how should the
appraisement of evidence by the trial Court be reviewed by this
Court in t)lis appeal, secondly, subject to what safeguards the
tape-recorded evidence should be accepted, thirdly, this being
election petition involvlng corX'upt practice, the nature of
evidence required to proved by a contesting party in order to G
succeed, and fourthly, whether bogus votes or booth capturing
itself is a corrupt practice because it depri.ves other genuine
voters in general of the right to vote or the right to abstain
from voting.

In this case, evidence of tape-recording made by the Deputy H
Commissioner, Shri Bhaskaran was produced before the High ·eourt.
In this tape-recorded evidence the Deputy Commissioner has

__ 1,..
502 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

recorded the incidents on the date of polling at several booths
hut reliance was placed onl.)' 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 state-
ments made by some persons including polling agent, polling
B 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
dis~l.nct or clear, this should not be relied upon. See in this
conne.ction the observations in American Jurisprudence Vol. 30
page 939.
c
In the case of R. V• Maqsud Ali, [1965] 2 All E.R. page 464
in respect of criminal trial the question was considered hy the
Court of Appeal in England. A tape-recording, i t was h2ld, 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
lJ Court, however, observed that such evidence should always be
regarded with some caution and assessed in the light of all the
circunstances of each case. There cannot, however, be any
question of laying down any exhaustive set of rules by which the
admisHibility of such evidence should be judged. It was further
observed that provided the jury was guided by what they hear
E 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. It is not necessary to set' out the particular facts of that
case. It may be noted, however, that Marshall, J, had observeJ at
pages 469-70 of the report as follows:-
F
"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. In so
far as that was so, much of the conversation was never
G transcribed, but there still remained much that was
transcribed, and the learned judge after full argunent
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 transcriptl.on unreliable and
H misleading. This argunent the learned judge treated
RAM SINGH v. COL. RAM SINGH [SABYASACHI MUKllARJI, J.] 503

with great care and circumspection. The recorded A
conversation was in Ptmjabi dialect confined to a
particular area of Pakistan. lie was told that there·
were many such dialects in which similar wor.ds
differed in or had mote than one meaning, that the
meaning of sentences often depended on the order of
the woris, that pronouns were matters of inference and B
not repr.esented by actual words. Often only parts of
sentences were decipherable owing to the other
extraneous noises. He decided, before admitting the
evidence to have a trial within a trial in which
translators were called by both aids which, I think l
am right in saying, lasted 2-1/2 days. All matters C
were canvassed in very great detail. He discovered
that ther~ were certain passages comnon to trans-
lations and, in the end, he decided that it was a
question which should be left to the jury but.he did
not think "this evidence was so unsatisfactory that l
should withdraw it from the jury. " D

It has to be borne. in mind that in England and in Alllerica,
the mechaniam of tape recording is well-advanced· In this
col.Dltry~ it is not sc as yet. Furthermo~e the infirmlties, some
of which 1,,,ve Leen noted by Marshall, J. of tape recording, are
more e""9id~nt in the _, :ist~nt case before us ..
E
In !l. '7- R<c""°"· [1972] 2 All E.R. page 699 the accused was
charged inter alia, with corruption. The prooacut:lons ought to
put tn evidence ..certain tape recordings. The defence contended
thnt these were not admissible because (i) it had not been ehown
that these were the originals· or in the absence of the originals
true copies of them, and (ii) they were mialeading and should not F
be relied on because in many places these were unintelligible and
of oor quality and their potential prejnd!cfa! effect would
therefore outweigh the evident:l&y value claimed for these. It
was held by the Court as follows:-

"The recordings were admissible for tbe following G
reasons-

(i) the Court was required to do no more than satisfy
itself that a prima facie case of originality had
been made out by evidence whirh defined and described
the provenance and history of the recordings up to the H
moment of production in Court and had not been
504 SUPREME COURT REPORTS [1985] SlJPP.2 s.c.R.

disturbed on cross-examination; in the circumstances
A
that requirement had been fulfilled (see p 701 f and p
702 a, post).

(ii) the Court was satisfied, on the balance of proba-
bilities, that the recordings were original and
B
, 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)."

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
c therefore their potential prejudicial effect outweighs the
evidentiary value of these recordings.

This Court had also considered this question in Sbri N.Sri
8 - Reddy Etc v. Sbri v.v. Giri.. [1971] l SCR page 399. 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
D
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)
E
and section 155 · (3) of the .Evidenee 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
F may be ·admissible what weight it has to be put to such evidence
depended upon the facts and circumstances and other relevant
factors.

In the case of Jl.!l. l!e'kan• v. State of l!eharubtra, (1973]
2 s.c.R. page 417 .This Court observed that tape recorded
G conversation was admissible provided firstly that the conver-
sation was relevant to the matters in issue secoDdly, there was
identification of the voice and thirdly, the accuracy to tape
recorded coversation has to be proved by eliminating the possibi-
lity of erasing the tape.
H
RAM SINGH v. COL. RAM SINGH [SABYASACHI MUKllARJI, J. J 505

In the facts of the present case, however, the dangers noted A
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.
B
On the aspect of the nature of evidence, the question here
is not who is a saint or who is a ~inner. 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. Cbeima Reddy V• v. c
l!amacbandra Hao and Anr., [1972] E.L.R. Vol. 40 page 390. 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 D
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 differen~e between the trial
of an election petition and a criminal trial may also
be noted. "At a criminal- trial the accused need not E
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 elec- F
tion 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 becoems the duty of the Court to G
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 the opinion
that on the evidence the charge is satisfactorily
established. We cannot also lose sight of the fact
that quite apart from the nature of the charge the H
trial itself goes on as if the issues in a civil suit
506 SUPREME COURT REPORTS [1985] SUPP;Z s.c.R.

A
were being investiagated into. The petitioaer has to
give particulars of the corrupt practice with details
in default whereof the allegations may be ignored; the
petitioner has to ask for certain declarations and the
procedure before the High Court is to be in accordance
with that applicable under the Code of Civil Ptocedure
to the trial of suits with the aid of the provisions
of the Indian Evidence Act· Inferences can therefore
be draw against a party who does not call evidence
which should be available in support of his version."

In the case of Ram Sharan Yadav v. Thakur Muneshwar Nath
Singh and Others [1984] S.C.C. page 649 this Court observed that
c 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 disquslification. Therefore, a very cautious approach 1111st be
made in order to prove the charge of vndue 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 he the same as for an
D
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
llattbaran Singh v. Sardar Sajjan Singh I< Ora. Civil Appeal Na.
E
3419 (NCE) of 1981-Judgment delivered on 29th November, 1984.

Judged by the aforesaid standard, for the infirmities
mentioned in the judgment of my learned brother, it car>.not be
said that the appellants have proved their case to the extent
required to succeed.
F
While in a first appeal, the entire evidence can be reviewed
by the appellate Court, and this being the first appeal under
Section 116A of the Representation of the People Act, one 1111st,
however, always bear in mind that where the question is whether
the oral testimony should be believed or not, the views of the
G trial judge should not be lightly brushed aside where the trial
judge has to advantage of judging the manner and demeanour of the
witness which advantag·co 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 has the advantage of watching
H the demeanour and the conduct of the witness cannot be lost sight
RAM SINGH v. COL. RAM SINGH [SABYASACHI MUKHARJI, J.] 507

of. See the observations of this Court in Moti Lal v. Chandra A
Pratap Tiwari &Ors. AIR 1975 SC page 1178 seealso the observa-
tions of this Court in Raglmvir Singh v. Ragbnhlr Singh
Kusbwaha. 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 ttial judge. B

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

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

P.B.R.