{"id":14806,"date":"1985-08-07T00:00:00","date_gmt":"1985-08-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-singh-ors-vs-col-ram-slngh-on-7-august-1985"},"modified":"2017-05-11T00:18:00","modified_gmt":"2017-05-10T18:48:00","slug":"ram-singh-ors-vs-col-ram-slngh-on-7-august-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-singh-ors-vs-col-ram-slngh-on-7-august-1985","title":{"rendered":"Ram Singh & Ors vs Col. Ram Slngh on 7 August, 1985"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ram Singh & Ors vs Col. Ram Slngh on 7 August, 1985<\/div>\n
Equivalent citations: 1986 AIR, 3\t\t 1985 SCR Supl. (2) 399<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nRAM SINGH & ORS.\n\n\tVs.\n\nRESPONDENT:\nCOL. RAM SLNGH\n\nDATE OF JUDGMENT07\/08\/1985\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nVARADARAJAN, A. (J)\nMUKHARJI, SABYASACHI (J)\n\nCITATION:\n 1986 AIR    3\t\t  1985 SCR  Supl. (2) 399\n 1985 SCC  Supl.  611\t  1985 SCALE  (2)1142\n\n\nACT:\n     Representation of the People Act 1951: Corrupt Practice\nhow should be Proved.\n     Evidence Act - Tape recorded statements - When could be\nused as\t evidence -  Safeguards to  be taken  in using\ttape\nrecorded evidence.\n\n\n\nHEADNOTE:\n     In the  general election  to the State Assembly held in\n1982 the appellants and the respondents were the candidates.\nThe respondent\twas declared  elected to  the  Assembly.  In\ntheir election\tpetition, the  appellants alleged  that\t the\nrespondent  was\t  guilty  of   corrupt\tpractice  and  booth\ncapturing in  that he  went to two polling booths along with\n50 to  60 persons,  armed  with\t guns,\tsticks\tand  swords,\nthreatened and pressurized the voters and as a result of the\nserious threats\t held out  by the respondent and his men the\nvoters ran away without exercising their franchise; that the\nrespondent and his companions entered the polling booths and\nterrorized the Polling Officer and polling agents, assaulted\nthe polling  agents at\tgun point,  snatched away the ballot\npapers and marking them in the respondent's favour, cast the\nvotes in  the ballot boxes and thumb marked the counter foil\nof  ballot  papers.  They  sought  a  declaration  that\t the\nrespondents election  was void\tunder  section\t100  of\t the\nRepresentation of  the People  Act 1951.  A large  number of\nwitnesses  were\t  examined  by\t both  sides.\tThe   Deputy\nCommissioner  who   was\t the   Returning  Officer   of\t the\nconstituency recorded  on a  tape recorder the statements of\nsame persons  including\t the  polling  agents,\tthe  Polling\nOfficer and the respondent and of himself.\n     The High  Court held that the evidence of the witnesses\nand the petitioners on these points was not corroborated, no\neffort was made by the petitioners to connect the respondent\nwith the  ownership of\tvehicles purported to have been used\nby him,\t that the  witnesses were  drawing more\t upon  their\nimagination to\tmake out  stories about the detention of the\npersons and  forcible polling at that polling station by the\nrespondent and that the\n400\npetitioners failed  to prove  the charge  beyond  reasonable\ndoubt. A  The court  also held that the role assigned to the\nrespondent by the petitioners has not been proved.\n     Dismissing the appeal\n^\n     HELD:  [Per   Fazal  Ali\tJ,  Sabyasachi\t Mukharji  J\nconcurring and Varadarajan J dissenting] The appellants have\nfailed to prove their case that the respondent was guilty of\nindulging in corrupt practices. [446 F]\n     Clear and\tspecific allegations  with facts and figures\nregarding  the\t corrupt  practices   indulged\tin   by\t the\nrespondent have\t not been  alleged in  the first part of the\nelection  petition.   The  petitioners\t should\t have  given\ndefinitive and\tspecific allegations regarding the nature of\nfraud or  the corrupt  practices committed by the respondent\nas briefly  as possible\t in the\t main part  of the petition.\n[407 E-F]\n     The appellants have not established that the respondent\nwas present  at the time of the incidents at the two booths.\nOnce this  is not  proved, the appellants have failed. It is\nsettled law  that corrupt practices must be committed by the\ncandidate or  his  polling  agent  or  by  others  with\t the\nimplicit or explicit consent of the candidate or his polling\nagent. Where  the supporters  of the  candidate indulged  in\ncorrupt practices  on their  own, without the authority from\nthe candidate the election cannot be voided, and this factor\nis conspicuously absent in this case. It is also settled law\nthat the  charge of  corrupt practice  has to  be proved  by\nconvincing evidence  and  not  merely  by  preponderance  of\nprobabilities. As  the charge  of corrupt practice is in the\nnature of a criminal charge, it is for the party who sets up\nthe plea of undue influence to prove it, to the hilt and the\nmanner of  proof should\t be the\t same as in a criminal case.\n[445 F-H]\n     As regards\t the evidence recorded on a tape Recorder or\nother mechanical process the preponderance of authorities is\nin favour  of the admissibility of the statements subject to\ncertain safeguards  viz., (1)  the voice of the speaker must\nbe identified  by the  maker of\t the record or by others who\nrecognise his  voice. Where the voice is denied by the maker\nit will\t require very strict proof to determine whether\t  or\nnot it was really the voice of the speaker. [414 E]\n     (2) The  voice of the speaker should be audible and not\ndistorted by other sounds or disturbances. [414 E]\n401\n     (3) The  accuracy of the tape recorded statement has to\nbe proved  by  the  maker  of  the  record  by\tsatisfactory\nevidence.[414 F]\n     (4) Every possibility of tampering with or erasure of a\npart of\t the tape recorded statement must be ruled out; [414\nG]\n     (5) The  statement must  be relevant  according to\t the\nrules of evidence and [414 H]\n     (6) The  recorded cassette must be carefully sealed and\nkept in safe custody. [415 A]\n     R. v. Maqsud Ali [1975] 2 All E.R. 464 and B. v. Robson\n[1972] 2 All E.R. 699, referred to.\n     In the instant case, the voices recorded at a number of\nplaces are  not very  clear and\t there is  noise  while\t the\nstatements were being recorded by the Deputy Commissioner. A\ngood part of the statement recorded on the cassette has been\ndenied not  only by the respondent but also the respondent's\nwitnesses. No  other witness  has  come\t forward  to  depose\nidentification\tof   the  voice\t of  the  respondent  or  of\nwitnesses. [444 E]\n     There are\terasures here  and there  in  the  tape\t and\nbesides the  voices recorded  being not\t very clear,  lt  is\nhazardous to  base a  decision on  such evidence. The Deputy\nCommissioner recorded  the statements  in violation  of\t the\ninstructions or\t the Government and erred in not placing the\nrecorded cassette in proper custody. He kept it with himself\nwithout authority and therefore the possibility of tampering\nwith the  statements cannot be ruled out. The transcript was\nprepared in  his office\t by his\t stenographer and  when\t the\ntranscript  was\t  being\t prepared  the\tDeputy\tCommissioner\nhimself was  absent from  his office. The possibility of its\nbeing tampered\twith by\t his stenographer  or somebody\telse\ncannot be  ruled out.  Respondents witnesses have denied the\nidentity of  their voices.  The\t recording  was\t done  in  a\nhaphazard and  unsystematic  manner.  A\t conspectus  of\t the\nevidence of the witnesses shows that the evidence adduced by\nthe respondent in the court is much superior in quality than\nthat adduced  by the appellants. The High Court was right in\nholding\t that  the  petitioners\t had  failed  to  prove\t the\nallegations of\tcorrupt practice  or booth  capturing beyond\nreasonable doubt. [441 E, 442 H-443 E]\nSabyasachi Mukharji,J.\tconcurring: While accepting the tape\nrecorded statements the court should proceed cautiously. The\n402\nevidence should\t be examined  on the  analogy  of  mutilated\ndocuments. If the tape recording is not coherent or distinct\nor clear it should not be relied upon. [502 B,D-E]\n     R. V. Maqsud Ali [1975] 2 All E.R. 464 and R. v. Robson\n[1972] 2 All E.R. 699, referred to.\n     In the  instant case, the tape recording was misleading\nand could  not be  relied on  because in  most places it was\nunintelligible and of poor quality. Therefore, its potential\nprejudicial effect  outweighs the  evidentiary value  of the\nrecording. [504 C]\n     Shri N.  Sri Rama\tReddy etc. v. Shri V.V. Giri [1971]1\nS.C.R. 399 and R.M. Malkani v. State of Maharashtra<\/a> [1973] 2\nS.C.R. 417  M.Chenna Reddy  v. V.  Ramachandra\tRao  &\tAnr.\n[1972] E.L.R.  Vol. 40,\t 390; Ram  Sharan  Yadav  v.  Thakur\nMuneshwar Nath\tSingh &\t Ors.<\/a> [1984]  4 S.C.C.\t649; C.A.No.\n3419\/81 decided on 29.11.84, referred to.\n     It is  settled law\t that the charge of corrupt practice\nis in  the nature  of a\t criminal  charge  which  if  proved\nentails a  heavy penalty in the form of disqualification and\nthat a more cautious approach must be made in order to prove\nthe charge  of undue  influence\t levelled  by  the  defeated\ncandidate. In  the instant  case, it cannot be said that the\nappellants had\tproved their  case to the extent required to\nsucceed. [506 D]\n     Where the question is whether the oral testimony should\nbe believed  or not  the views of the trial judge should not\nbe lightly  brushed aside,  because the\t trial judge has the\nadvantage of judging the manner and demeanour of the witness\nwhich advantage\t the Appellate Court does not enjoy. In view\nof the\tnature of  the evidence on record there is no reason\nto disagree  with the appraisal of the evidence by the trial\njudge. [506 G]\n     Moti Lal  v. Chandra  Pratap Tiwari  & Ors. A.I.R.<\/a> 1975\nS.C. 1178  and Raghuvir\t Singh v.  Raghuvir  Singh  Kushwaha\nA.I.R.<\/a> 1970 S.C. 442, referred to.\n     Varadarajan J.  dissenting :  It is  clear from decided\ncases that tape recorded evidence is admissible provided the\noriginality and\t the authenticity  of the tape are free from\ndoubt. In  the instant\tcase, there  is no  valid reason  to\ndoubt them.  It is  not reasonable to reject the tape merely\nbecause some portions thereof\n403\ncould not  be made  out on account of noise and interference\nnot only outside but also inside the Polling Station. On the\ncontrary    under  the\tcircumstances  of  this\t case  great\nrelevance has  to be placed on the tape and its contents not\nonly  for   corroborating  the\t evidence  of  the  District\nCommissioner and the Presiding Officer to the extent they go\nbut also  as resgestae\tevidence of  the first\tpart of\t the\nincident. The Trial Judge was not justified in rejecting the\ntape record  and transcription.\t The appellants\t have proved\nsatisfactorily and beyond reasonable doubt the first part of\nthe incident  in one  of  the  Polling\tStations,  that\t the\nrespondent went\t armed with a rifle with 25 or 30 companions\nand entered the Polling Station with 4 or 5 armed companions\nand threatened\tthe Presiding  Officer and  others who\twere\npresent there  with the\t use of\t force and  got some  ballot\npapers marked in favour of the respondent polled forcibly by\nhis companions\tin the\tballot box  and that  they left\t the\nPolling Station\t on seeing  the\t villagers  and\t the  police\ncoming towards\tthe  Polling  Station.\tThe  discrepancy  in\nevidence regarding the time of the incident is not material.\n[478 A-C, 483 E-484 A]\n     Secondly,\tthe   Deputy   Commissioner   recorded\t the\nconversation which  he had  with the  presiding Officer\t but\nsome  portion  thereof\twas  erased  by\t his  own  voice  by\ninadvertence. After recording, his stenographer prepared the\ntranscript in  his office  most of  it under his supervision\nand though he was temporarily absent to attend to some other\nwork he\t compared it  with the original tape and found it to\nbe correct.  The tape,\tthe tape recorder and the transcript\nremained with  him throughout  and were not deposited by him\nin  the\t record\t room  and  there  was\tnot  possibility  of\ntampering. [496 F-497 A]\n     The respondent  had managed to keep away from the court\nmaterial evidence  by way  of the  original  report  of\t the\nPresiding Officer.  He had  cited a person as his witness to\ndepose about  his case\tbut did\t not examine  him  for\tthat\npurpose\t and   had  called  him\t only  for  the\t purpose  of\nproduction  of\t some  record,\t without  any\toath   being\nadministered to\t him. He  had denied  to the  appellants the\nopportunity to\tcross-examine that  witness. The  respondent\nhad come  forward with a new case of alleged booth capturing\nand forcible polling of bogus votes after the appellants had\ncompleted the  examination of  their witnesses\tto whom\t not\nsuch suggestion\t was made in the cross-examination. From the\nevidence  on   record  two   views  are\t not  possible.\t The\nappellants have\t proved beyond\treasonable  doubt  that\t the\nrespondent  had\t committed  the\t corrupt  practices  alleged\nagainst him.  No lenient  view can  be taken  in  this\tcase\nmerely because the election petition is directed against the\nreturned candidate. [499 G-500 B]\n404\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 6623 of
\n1983.\n<\/p>\n
     From the  Judgment and  Order  dated  3.6.1983  of\t the
\nPunjab & Haryana High Court in E.P. 13\/82.\n<\/p>\n
     Kapil Sibal,  Gopi Chand,\tK.C. Sharma, R. Karanjawala,
\nMrs. M.\t Karanjawala, Miss  Neethu &  Mrs. Madhu Tewatia for
\nthe Appellants.\n<\/p>\n
     K.G.    Bhagat,\t Additional    Solicitor    General,
\nR.Venkataramani, Ranbir\t Singh Yadav,  P.S. Pradhan, Chandra
\nShekhar Panda and A. Mariaroutham for the Respondent.\n<\/p>\n
     The following Judgments were delivered:\n<\/p>\n
     FAZAL ALI,\t J. The\t election process in our country has
\nbecome an  extremely  complex  and  complicated\t system\t and
\nindeed a  very difficult and delicate affair. Sometimes, the
\nelection petitioner,  who  has\tlost  the  election  from  a
\nparticular constituency,  makes out  on the  surface such  a
\nprobable feature  and presents\tfalsehood dextrously dressed
\nin such\t a fashion  as the truth being buried somewhere deep
\ninto the roots of the case so as to be invisible, looks like
\nfalsehood which\t is depicted  in the  grab of  an attractive
\nimposing and charming dress as a result of which some courts
\nare prone  to fall  into the  trap and\thold as true what is
\ndownright false.  If, however,\tthe lid is carefully opened,
\nand the veil is lifted, the face of Falsehood disappears and
\ntruth comes out victorious.\n<\/p>\n
     In such  cases the\t judicial process  and the  judicial
\napproach has  to be  both pragmatic  and progressive sc that
\nthe deepest  possible probe is made to get at the real truth
\nout of\ta heap of dust and cloud. This is indeed a herculean
\ntask and unless the court is extremely careful and vigilant,
\nthe truth  may be  so completely  camouflaged that falsehood
\nmay look like real truth.\n<\/p>\n
     Of course,\t the advocacy of the counsel for the parties
\ndoes play  a very  important role in unveiling the truth and
\nin borderline cases the courts have to undertake the onerous
\ntask of\t “disengaging the  truth from falsehood, to separate
\nthe chaff  from the  grain”. In\t our opinion,  all said\t and
\ndone, if  two views are reasonably possible one in favour of
\nthe elected  candidate and  the\t other\tagainst\t him  Courts
\nshould not  interfere with  the expensive  electoral process
\nand instead of setting at naught the
\n405<\/span>
\nelection of the winning candidate should uphold his election
\ngiving him  benefit of\tthe doubt.  This is  more  so  where
\nallegations of fraud or undue influence are made.\n<\/p>\n
     There observations\t have been  made by  us in  order to
\ndecide election\t cases with  the greatest amount of care and
\ncaution, consideration\tand circumspection  because  if\t one
\nfalse step  is taken,  it ay  cause havoc  to the person who
\nloses.\n<\/p>\n
     It is  not necessary  for us to dwell on or narrate the
\nfacts of  the case of the parties which have detailed by the
\nHigh Court  in very  clear and\tunambiguous terms. To repeat
\nthe same  all over  again might frustrate the very object of
\ndeciding election petitions with utmost expedition. Even so,
\nit may\tbe necessary  for us to give a bird’s eye view and a
\ngrotesque picture  of the important and dominant elements of
\nthe controversy\t between the  parties in order to understand
\nwhich of the two cases presented before us is true.\n<\/p>\n
     The evidence in the present case consists of –
\n\t  a. Oral evidence of the witnesses of the parties
\n\t  b. the documentary evidence
\n\t  c. the  evidence consisting  of the  tape recorded
\n\t  statements of\t the conversation between the Deputy
\n\t  Commissioner and  the respondent,  Col. Ram Singh,
\n\t  corroborated by  the respondent  himself  who\t was
\n\t  examined as  a court\twitness by  us in this Court
\n\t  and both  sides were\tgiven  full  opportunity  to
\n\t  cross-examine him.\n<\/p>\n
\t  d. important\tpoints of  law arising\tout  of\t the
\n\t  arguments presented before us, and
\n\t  e. authorities of this Court or other courts cited
\n\t  before us.\n<\/p>\n
     For the  purpose of  understanding the  truth  and\t the
\nspirit of  the matter a scientific dichotomy of the case has
\nto be made which may include the following factor:\n<\/p>\n
\t  a. Time and manner of voting,
\n406<\/span>
\n\t  b. allegation of both capturing,
\n\t  c. role played by the electoral authorities who ma
\n\t  have acted  honestly yet  the possibility of their
\n\t  falling an  easy prey\t to the\t machinations of one
\n\t  side or  the other  cannot  be  safely  eliminated
\n\t  which may  lead to  an error\tof Judgment on their
\n\t  part. This should be fully guarded against as also
\n\t  the possibility  of their  being attracted  by any
\n\t  False temptation,
\n\t  d. Where  the proof  of a  corrupt practice  is he
\n\t  very cornerstone  and the  bedrock of the case set
\n\t  against the successful candidate, the court should
\n\t  be doubly sure that it is not lured to fall in the
\n\t  labyrinth of chaos and confusion by easily holding
\n\t  that the corrupt practice alleged has been proved.<\/p>\n
     With this\tshort prelude,\twe would now proceed to give
\nan exhaustive glimpse of the contentions raised before us by
\nthe parties.  Before, however, we do that we must record our
\nappreciation and  gratefulness to  the counsel\tfor both the
\nparties who  in a big case like this had been fair enough to
\nconfine their  arguments only to two polling stations, viz.,
\nKalaka and  Burthal Jat,  which has  rendered our  task much
\neasier besides\tsaving a lot of time, labour and expense. We
\nalso feel  indebted to\tthe learned  counsel for the parties
\nfor having argued the case with dexterity and brevity which,
\nas it is said, is the ‘soul of wit’.\n<\/p>\n
     The present  appeal arises\t out of\t an election held on
\nMay  19,1982   to  the\tHaryana\t Vidhan\t Sabha\tfrom  Rewari
\nconstituency No.86.  In view  of the  concession made by the
\ncounsel for  the parties,  we are  concerned in\t this appeal
\nonly with  two polling booths, viz., Kalaka and Burthal Jat.
\nIt appears  that there\twere as\t many as five candidates and
\nCol. Ram  Singh\t [respondent]  seems  to  have\tbeen  pitted
\nagainst the aforesaid candidates.\n<\/p>\n
     The bedrock  of the  allegations made by the appellants
\nagainst the  respondent was that he has been painted to be a
\nmost undependable and unreliable person from the moral point
\nof view\t as having changed sides with one party or the other
\nto suit\t his needs  and divided\t his loyalties\tby playing a
\ndirty game  of politics in that he changed sides without any
\nfixed ideology\tand the\t only principle\t which, according to
\nthe appellants,\t the respondent\t had, was lust for power. It
\nmay be pertinent to note
\n407<\/span>
\nhere that  the respondent had also alleged that Rao Birendra
\nSingh, who,  according to  him, was  the evil  genius of the
\nwhole show,  had set  up his sister, Sumitra Bai, to contest
\nthe election  in order to get the respondent out of the way.
\nHowever, we  are not  at all  concerned with  any  of  these
\nmatters or  allegations which  appear to  be foreign  to the
\nscope of  the present appeals nor are these matters of which
\nany serious  notice can\t be taken because as Shakespeare has
\nsaid “everything is fair in war and love” and the respondent
\ncould not  be presumed to be as virtuous as Ceasar’s wife so
\nas to  be completely  above board.  So, we  cannot blame the
\nrespondent if  he changed  sides to  suit the  temper of the
\ntimes. At  any rate, this allegation has no relevance to the
\nsetting aside  of the  election of the successful candidate.
\nThe law\t does not  recognise either  political\tmorality  or
\npersonal loyalties  so long  as the  candidate allows a fair
\ngame to\t be played  without destroying\tthe sanctity  of the
\nelectoral process by indulging in undue influence or corrupt
\npractices  which   must\t be   proved  satisfactorily  beyond
\nreasonable doubt.\n<\/p>\n
     So far  so good.  A conspicuous  fact  may\t however  be
\nnoticed here, viz., that clear and specific allegations with
\nfacts and  figures regarding  the corrupt practices indulged
\nin by the respondent have not been alleged in the first part
\nof the\telection petition  itself. The\tallegation  however,
\nhave been  detailed in the statement of particular submitted
\nby the\tappellants, who were certainly entitled to do so but
\nwe  should   have  expected  some  definitive  and  specific
\nallegations regarding the nature of the fraud or the corrupt
\npractices committed by the respondent as briefly as possible
\nin the\tmain part of the petition itself. Therefore, this is
\ndoubtless a  relevant factor  in Judging  the truth  of\t the
\nparticulars mentioned  in the  statement  more\tparticularly
\nwhen the  onus of proving the corrupt practice lies entirely
\non the\telection petitioner  who must demonstrably prove the
\nsame.\n<\/p>\n
     And now a pointed peep into the salient features of the
\nfacts of  the case.  To begin  with, the  arguments  of\t the
\nappellants are\tconfined only  to the Kalaka and Burthal Jat
\npolling booths.\t Therefore we  proceed further\twe might  at
\nthis stage  briefly indicate,  shorn of details, the nature,
\ncharacter and  the extent  of the  allegations regarding the
\ncorrupt practices  and booth  capturing alleged to have been
\nindulged in  by the  respondent on  the basis  of which\t the
\nappellants seek to set aside the election of the respondent.\n<\/p>\n
408<\/span><\/p>\n
     As\t regards   Kalaka,  (1)\t it  was  alleged  that\t the
\nrespondent appeared  at the  scene at  about 10.30 a.m. with
\n50-60 persons  and was\thimself armed  with a  gun while his
\ncompanions had\tguns, sticks  and swords.  By sheer  show of
\nforce, the  voters were\t threatened  and  pressurised  as  a
\nresult of  which they  ran  away  without  exercising  their
\nvotes. In other words, the allegation is that as a result of
\nthe serious  threat held  out by  the respondent, the voters
\nwere deprived of their valuable right of fraenchise.\n<\/p>\n
     (2) The  respondent alongwith  his companions enter the
\nbooth and terrorised the polling officer as also the polling
\nagents (Basti  Ram & Ishwar) of the Congress I candidate who
\nwere assaulted\tby The\trespondent by  the but\tend  of\t the
\nbarrel of his gun.\n<\/p>\n
     (3) The  respondent and  others at\t gun point  snatched
\naway about 50 ballot papers from the polling staff and after
\nmarking them  in his  (respondent) favour  put them into the
\nballot box.\n<\/p>\n
     (4)  The\trespondent  and\t  his  companions   at\t his
\n(respondent) instance  thumb-marked the\t counterfoils of the
\nballot papers also.\n<\/p>\n
     As regards\t Burthal booth,\t (1) the  appellants alleged
\nthat almost  the same  modus operandi  was  adopted  by\t the
\nrespondent and\the directed  his supporters  to prevent\t the
\nvoters from  entering the  booth, thereby  depriving them of
\nthe opportunity of exercising their right to vote.\n<\/p>\n
     (2) Not  content with  this, the respondent left behind
\nhis relations  Anil Kumar  and Satbir  Singh to carry on the
\naforesaid activities  and gave further instructions that the
\nmaximum number of votes should be polled in his favour.\n<\/p>\n
     Thus, so  far as  Kalaka and Burthal polling booths are
\nconcerned, two important corrupt practices have been alleged
\nby the appellants:-\n<\/p>\n
     (1) forcible polling of votes and
\n     (2) preventing the genuine voters from exercising their
\nright to vote.\n<\/p>\n
     It manifestly  follows that  once it is proved that the
\nrespondent was\tnot present  at the time of the incidents at
\nKalaka
\n409<\/span>
\nand Burthal, the case of the appellants falls like a pack of
\ncards because  it is  well settled by several authorities of
\nthis Court  that the  corrupt practice\tmust be committed by
\nthe candidate  or his  polling agent  or by  others with the
\nimplicit or explicit consent of the candidate or his polling
\nagent. Where, however, the supporters or a candidate indulge
\nin a  corrupt practice\ton their  own  without\thaving\tbeen
\nauthorised by  the  candidate  or  his\tpolling\t agent,\t the
\nelection of  the returned  candidate cannot  be\t voided.  We
\nmight mention  here that  the last factor indicated by us is
\nconspicuously absent in this case taking ex facie the entire
\nfacts narrated\tby the\tappellants in  their pleadings or in
\nthe evidence.\n<\/p>\n
     Before, however, analysing and marshalling the evidence
\nwe would  like to refer to the authorities of this Court and
\nother courts regarding the necessary precautions to be Taken
\nin approaching evidence in election cases and she principles
\nlaid down  by us.  We would also deal with the extent of the
\nadmissibility  of   the\t evidence   of\tthe   tape  recorded
\nstatements  alleged  to\t have  been  made  by  some  of\t the
\nwitnesses in  the tape-recorder\t recorded  by  P.W.  7,\t the
\nDeputy Commissioner.\n<\/p>\n
     As regards\t the principles\t enunciated  by\t this  Court
\nregarding the  nature and  the standard\t of proof of corrupt
\npractice alleged  by  an  election  petitioner\tagainst\t the
\nsuccessful candidate,  though it  is not necessary for us to
\nburden our judgment with multiplicity of authorities yet the
\nratio of  some of the important decisions which are directly
\nin point may be briefly stated.\n<\/p>\n
     To begin  with, as far back as 1959 in Ram Dial v. Sant
\nLal Ors.,<\/a>  [1959] 2  supp. S.C.R.  748, the  Court  observed
\nthus:\n<\/p>\n
\t  “What is material under the Indian law, is not the
\n\t  actual effect produced, but the doing of such acts
\n\t  as are  calculated  to  interfere  with  the\tfree
\n\t  exercise of  any electoral right. Decisions of the
\n\t  English Courts,  based on the words of the English
\n\t  Statute, which  are not  strictly in\tpari materia
\n\t  with the  words of  the  Indian  statute,  cannot,
\n\t  therefore, be used as precedents in this country.”<\/p><\/blockquote>\n
     In Samant\tN. Balakrishna,\t etc. v.  George Fernandez &
\nOrs. etc..,  [1969] 3  S.C.R. 603, this Court while dwelling
\non the\tprinciples to  be followed in election cases pithily
\npoint out thus:\n<\/p>\n
410<\/span><\/p>\n
\t  “The principle  of law is settled that consent may
\n\t  be inferred  from circumstantial  evidence but the
\n\t  circumstances\t must\tpoint  unerringly   to\t the
\n\t  conclusion  and   must  not  admit  of  any  other
\n\t  explanation. Although\t the trial  of\tan  election
\n\t  petition is  made in\taccordance with\t the Code of
\n\t  Civil Procedure  it has  been\t laid  down  that  a
\n\t  corrupt practice must be proved in the same way as
\n\t  a criminal  charge is\t proved. In other words, the
\n\t  election petitioner  must exclude every hypothesis
\n\t  except that  of guilt\t on the part of the returned
\n\t  candidate or his election agent.”\n<\/p><\/blockquote>\n
     In Ch.  Razik Ram\tv. Ch.\tJaswant Singh Chouhan & Ors.<\/a>\n<\/p><\/blockquote>\n
[1975] 4  S.C.C. 769,  this Court  laid down  the  following
\nprinciples:\n<\/p>\n
\t  “Before considering  as to  whether the charges of
\n\t  corrupt practice were established, it is important
\n\t  to remember the standard of proof required in such
\n\t  cases. It is well settled that a charge of corrupt
\n\t  practice  is\tsubstantially  akin  to\t a  criminal
\n\t  charge.  The\tcommission  of\ta  corrupt  practice
\n\t  entails serious  penal consequences.\tIt not\tonly
\n\t  vitiates the\telection of  the candidate concerned
\n\t  but also  disqualifies him  from taking,  part  in
\n\t  elections for\t a considerably long time. Thus, the
\n\t  trial of  an election petition being in the nature
\n\t  of an\t accusation, bearing  the indelible stamp of
\n\t  quasi-criminal action,  the standard\tof proof  is
\n\t  the same as in a criminal trial.\n<\/p><\/blockquote>\n
\t  Secondly, even  if the  nature of  the trial of an
\n\t  election petition  is not the same in all respects
\n\t  as that of a criminal trial, the burden of proving
\n\t  each and  every ingredient  of the  charge  in  an
\n\t  election petition  remains on the petitioner. If a
\n\t  fact\tconstituting   or  relevant   to   such\t  an
\n\t  ingredient is\t pre-eminently within  the knowledge
\n\t  of the  respondent, it  may affect  the quantum of
\n\t  its proof  but does  not relieve the petitioner of
\n\t  his primary burden.”\n<\/p><\/blockquote>\n
In Balwan Singh v. Prakash Chand & Ors.<\/a> [1976] 3 S.C.R. 335,
\nShinghal,J. made the following observations:\n<\/p>\n
\t  “Another argument  of\t Mr.  Bindra  was  that\t the
\n\t  corrupt practice  in question should not have been
\n\t  found to
\n411<\/span>
\n\t  have been  committed as  the election\t petitioners
\n\t  did not  examine themselves  during the  course of
\n\t  the trial  in the High Court. There was however no
\n\t  such obligation  on them,  and the  evidence which
\n\t  the election\tpetitioners were  able to produce at
\n\t  the trial  could not\thave been  rejected for\t any
\n\t  such fanciful\t reason when  there was\t nothing  to
\n\t  show that  the election  petitioners were  able to
\n\t  give useful  evidence to  their personal knowledge
\n\t  but stayed away purposely.”<\/p><\/blockquote>\n
     In the  case of  Sultan Salahuddin Owasi v. Mohd. Osman
\nShaheed &  Ors.<\/a>[1980] 3 S.C.C. 281 to which one of us (Fazal
\nAli, J.) was a party, this Court observed thus:-\n<\/p>\n
\t  “It is  now well  settled by a large catena of the
\n\t  authorities of this Court that a charge of corrupt
\n\t  practice must\t be proved to the hilt, the standard
\n\t  of proof of such allegation s the same as a charge
\n\t  of fraud in a criminal case.<\/p><\/blockquote>\n
     In Ram  Sharan Yadav  v. Thakur  Muneshwar Nath Singh &
\nOra.<\/a> [1984]  4 S.C.C.  649, to which two of us were parties,
\nthis Court observed thus:\n<\/p>\n
\t  “The sum  and substance of these decisions is that
\n\t  a charge  of corrupt\tpractice has to be proved by
\n\t  convincing   evidence\t   and\t not\tmerely\t  by
\n\t  preponderance of E probabilities. As the charge of
\n\t  a corrupt  practice is in the nature of a criminal
\n\t  charge, it  is for  the party who sets up the plea
\n\t  of ‘\tundue influence’  to prove  it to  the\thilt
\n\t  beyond reasonable  doubt and\tthe manner  of proof
\n\t  should be the same as for an offence in a criminal
\n\t  case. This is more so because once it is proved to
\n\t  the satisfaction  of a  court that a candidate has
\n\t  been guilty of ‘undue influence’ then he is likely
\n\t  to be\t disqualified for  a period  of six years or
\n\t  such other period as the authority concerned under
\n\t  Section 8-A of the Act may think fit.\n<\/p><\/blockquote>\n
\t  By and  large,  the  Court  in  such\tcases  while
\n\t  appreciating or  analysing the  evidence  must  be
\n\t  guided by the following considerations:
\n\t  (1)  the  nature,  character,\t respectability\t and
\n\t  credibility of the evidence,
\n412<\/span>
\n\t  (2)  the   surrounding   circumstances   and\t the
\n\t  improbability\t appearing in the case,
\n\t  (3) the slowness of the appellate court to disturb
\n\t  a finding  of fact  arrived at  by the trial court
\n\t  who had  the initial\tadvantage of  observing\t the
\n\t  behaviour,  character\t  and\tdemeanour   of\t the
\n\t  witnesses appearing before it, and
\n\t  (4) the  totality of\tthe  effect  of\t the  entire
\n\t  evidence  which   leaves  a\tlasting\t  impression
\n\t  regarding the corrupt practices alleged.”<\/p><\/blockquote>\n
     This, therefore,  concludes the  question regarding the
\nstandard of proof.\n<\/p>\n
     As heavy reliance was placed by the appellants on Ex.P-
\n1 (the\ttape-recorded statements  of RWs 1 to 3) as also the
\nstatements recorded  in the same tape-recorder by PW 7 which
\nincluded the  statement of the respondent, in order to allay
\nall doubts  and satisfy\t ourselves regarding the genuineness
\nof the statements made in the tape-recorder we have examined
\nthe respondent\tas a court witness in this Court and allowed
\nhim to\tbe cross-examined  by both sides. We would deal with
\nthe nature  and the  relevancy of  the statements  made at a
\nlater part of our judgment. But before that we would like to
\nsettle the controversy between counsel for the parties as to
\nthe extent  of admissibility  of evidence  recorded on tape-
\nrecorder or other mechanical process.\n<\/p>\n
     It seems  to us  that the\tmatter have is not free from
\ndifficulty but the preponderance of authorities – Indian and
\nforeign –  are in  favour of  admissibility of the statement
\nprovided certain  conditions and safeguard are proved to the
\nsatisfaction of\t the court.  We now  proceed to\t discuss the
\nvarious ramifications  and the repercussions of this part of
\nthe case.\n<\/p>\n
     This Court had the occasion to go into this question in
\na few  cases and  it will  be useful  to cite  some  of\t the
\ndecisions.  In\t Yusufalli  Esmail   Nagree  v.\t  State\t  of
\nMaharashtra<\/a>  [1967]  3\tS.C.R.\t720,  this  Court,  speaking
\nthrough Bachawat, J. Observed thus:\n<\/p>\n
\t  “If a\t statement ‘is\trelevant, an  accurate\ttape
\n\t  record of  the  statement  is\t also  relevant\t and
\n\t  admissible. The time and place and accuracy of the
\n\t  recording must  be proved  by a  competent witness
\n\t  and the voices must be
\n413<\/span>
\n\t  properly  identified.\t  One  of  the\tfeatures  of
\n\t  magnetic tape\t RECORDING is  the ability  to erase
\n\t  and re-use  the recording  medium. Because of this
\n\t  facility of  erasure and re-use, the evidence must
\n\t  be  received\twith  caution.\tThe  court  must  be
\n\t  satisfied beyond  reasonable doubt that the record
\n\t  has not been tampered with.\n<\/p><\/blockquote>\n
\t  The tape  was not  sealed  and  was  kept  in\t the
\n\t  custody  of\tMahajan\t The   absence\tof   sealing
\n\t  naturally gives  rise to  the\t argument  that\t the
\n\t  recording medium  might have\tbeen  tempered\twith
\n\t  before it was replayed.”\n<\/p><\/blockquote>\n
\t\t\t\t\t     (Emphasis ours)
\n     In the  case of  N. Sri  Rama Reddy,  etc. v.  V.V.Giri
\n[1971] 1 S.C.R. 399, the following observations were made:\n<\/p><\/blockquote>\n
\t  “Having due  regard to  the decisions\t referred to
\n\t  above, it is clear that a previous statement, made
\n\t  by a\tperson and recorded on tape, can be used not
\n\t  only to  corroborate the  evidence  given  by\t the
\n\t  witness  in  Court  but  also\t to  contradict\t the
\n\t  evidence given  before the  Court, as\t well as  to
\n\t  test the  veracity of\t the  witness  and  also  to
\n\t  impeach his impartiality.\n<\/p><\/blockquote>\n
     In R.M. Malkani v. State of Maharashtra<\/a> [1973] 2 S.C.R.\n<\/p><\/blockquote>\n
417, this Court laid down the essential conditions which, if
\nfulfilled or satisfied, would make a tape-recorded statement
\nadmissible otherwise not; and observed thus:\n<\/p><\/blockquote>\n
\t  “Tape recorded conversation is admissible provided
\n\t  first the  conversation is relevant to the matters
\n\t  in issue  secondly, there is identification of the
\n\t  voice; and,  thirdly, the  accuracy  of  the\ttape
\n\t  recorded conversation is proved by eliminating the
\n\t  possibility of erasing the tape record.<\/p><\/blockquote>\n
\t\t\t\t\t (Emphasis supplied)
\n     In Ziyauddin  Burhanuddin Bukhari\tv. Brijmohan Ramdass
\nMehra &\t Ors.,<\/a> [19751  Supp. S.C.R.  281, Beg,J. (as he then
\nwas, made the following observations:\n<\/p><\/blockquote>\n
\t  “We think  that the  High Court was quite right in
\n\t  holding that the tape records of speeches were
\n414<\/span>
\n\t  “documents” ,\t as defined  by\t Section  3  of\t the
\n\t  Evidence Act,\t which stood on no different footing
\n\t  than photographs, and that they were admissible in
\n\t  evidence on satisfying the following conditions:\n<\/p><\/blockquote>\n
\t  (a) The voice of the person alleged to be speaking
\n\t  must be duly identified by the maker of the record
\n\t  or by others who knew it.\n<\/p><\/blockquote>\n
\t  (b) Accuracy\tof what was actually recorded had to
\n\t  be  proved   by  the\t maker\tof  the\t record\t and
\n\t  satisfactory evidence,  DIRECT  or  circumstances,
\n\t  had to be there 80 as to rule out possibilities of
\n\t  tampering with the record.<\/p><\/blockquote>\n
\t  (c) The subject matter recorded had to be shown to
\n\t  be relevant  according to rules of relevancy found
\n\t  in the evidence Act.” (Ephes ours)
\n     Thus, so  far as this Court is concerned the conditions
\nfor admissibility of a tape recorded statement may be stated
\nas follows:\n<\/p><\/blockquote>\n
\t  (1)  The   voice  of\tthe  speaker  must  be\tduly
\n\t  identified by the maker of the record or by others
\n\t  who  recognise  his  voice.  In  other  words,  it
\n\t  manifestly follows as a logical corollary that the
\n\t  first condition  for the  admissibility of  such a
\n\t  statement is to identify the voice of the speaker.
\n\t  Where the  voice has\tbeen denied  by the maker it
\n\t  will\trequire\t  very\tstrick\tproof  to  determine
\n\t  whether or  not it  was really  the voice  of\t the
\n\t  speaker.\n<\/p><\/blockquote>\n
\t  (2) The  accuracy of\tthe tape  recorded statement
\n\t  has to  be proved  by the  maker of  the record by
\n\t  satisfactory evidence – direct or circumstantial.
\n\t  (3) Every possibility of tampering with or erasure
\n\t  of a\tpart of\t a tape\t recorded statement  must be
\n\t  ruled\t out   otherwise  it  may  render  the\tsaid
\n\t  statement  out   of  con   text  and,\t  therefore,
\n\t  inadmissible.\n<\/p><\/blockquote>\n
\t  (4) The  statement must  be relevant\taccording to
\n\t  the rules of Evidence Act.\n<\/p><\/blockquote>\n
415<\/span><\/p>\n
\t  (5) The recorded cassette must be carefully sealed
\n\t  and kept in safe or official custody.
\n\t  (6) The  voice of  the speaker  should be  clearly
\n\t  audible and  not lost or distorted by other sounds
\n\t  or disturbances.<\/p><\/blockquote>\n
     The view  taken  by  this\tCourt  on  the\tquestion  of
\nadmissibility of  tape recorded\t evidence finds full support
\nfrom both  English and American authorities. In R. v. Maqsud
\nAli, [1965] All. E.R. 464., Marshall, J., observed thus:- C
\n\t  “We can  see no  difference in principle between a
\n\t  tape recording and a photograph. In saying this we
\n\t  must not  be taken  as saying that such recordings
\n\t  are admissible  whatever the circumstances, but it
\n\t  does appear to this court wrong to deny to the law
\n\t  of  evidence\t advantages  to\t be  gained  by\t new
\n\t  techniques and  new devices, provided the accuracy
\n\t  of the  recording can\t be proved  and\t the  voices
\n\t  recorded properly  identified; provided  also that
\n\t  the evidence is relevant and otherwise admissible,
\n\t  we  are   satisfied  that   a\t tape  recording  is
\n\t  admissible  in   evidence.  Such  evidence  should
\n\t  always be  regarded with some caution and assessed
\n\t  in the  light of  all the  circumstances  of\teach
\n\t  case. There  can be no question of laying down any
\n\t  exhaustive set of rules by which the admissibility
\n\t  of such evidence should be judged.<\/p><\/blockquote>\n
     We find  ourselves in  complete agreement with the view
\ntaken by  Marshall, J.,\t who was one of the celebrate Judges
\nof the\tCourt of  Criminal Appeal.  To the  same  effect  is
\nanother decision  of the same court in R. v. Robson [1972] 2
\nAll E.R.  699, where  Shaw, J., delivering a judgment of the
\nCentral Criminal Court observed thus:\n<\/p>\n
\t  “The determination  of the  question\tis  rendered
\n\t  more difficult  because  tape\t recordings  may  be
\n\t  altered  by\tthe  transposition,   excision\t and
\n\t  insertion of words or phrases and such alterations
\n\t  may  escape\tdetection  and\t even  elude  it  on
\n\t  examination by technical experts.\n<\/p><\/blockquote>\n
416<\/span><\/p>\n
\t  During the  course of the evidence and argument on
\n\t  the issue  of admissibility  the  recordings\twere
\n\t  played back  many times.  In the end I came to the
\n\t  view that  in continuity,  clarity  and  coherence
\n\t  their quality\t was,  at  the\tleast,\tadequate  to
\n\t  enable the  jury  to\tform  a\t fair  and  reliable
\n\t  assessment of the conversation which were recorded
\n\t  and that  with an  appropriate  warning  the\tjury
\n\t  would\t not   be  led\t into\tand   interpretation
\n\t  unjustifiably adverse to the accused. Accordingly,
\n\t  so far  as the matter was one of discretion, I was
\n\t  satisfied  that   \/  injustice  could\t arise\tfrom
\n\t  admitting the\t tapes in  evidence  and  that\tthey
\n\t  ought not to be excluded on this basis.”<\/p><\/blockquote>\n
     In Amercian  Jurisprudence\t 2nd  (Vo1.29)\tthe  learned
\nauthor on a conspectus of the authorities referred to in the
\nfootnote in  regard to\tthe admissibility  of tape  recorded
\nstatements at page 494 observes thus:\n<\/p>\n
\t  “The cases  are in  general agreement\t as to\twhat
\n\t  constitutes a\t proper foundation for the admission
\n\t  of a\tsound recording,  and indicate\ta reasonably
\n\t  strict  adherence  to\t the  rules  prescribed\t for
\n\t  testing the  admissibility  of  recordings,  which
\n\t  have been outlined as follows:\n<\/p><\/blockquote>\n
\t  (1)  a  showing  that\t the  recording\t device\t was
\n\t  capable of taking testimony;\n<\/p><\/blockquote>\n
\t  (2) a\t showing that the operator of the device was
\n\t  competent;\n<\/p><\/blockquote>\n
\t  (3)  establishment   of   the\t  authenticity\t and
\n\t  correctness of the recording;\n<\/p><\/blockquote>\n
\t  (4)  a   showing  that   changes,  additions,\t  or
\n\t  deletions have not been made;\n<\/p><\/blockquote>\n
\t  (5) a showing of the manner of the preservation of
\n\t  the recording;\n<\/p><\/blockquote>\n
\t  (6) identification of the speakers; and
\n\t  (7) a\t showing that  the  testimony  elicited\t was
\n\t  voluntarily made without any kind of inducement.\n<\/p><\/blockquote>\n
417<\/span><\/p>\n
\t  ..However, the recording may be rejected if it  is
\n\t  so inaudible and indistinct that the jury must –\n<\/p><\/blockquote>\n
\t\t\t\t\t     (Emphasis ours)
\n     We would,\ttherefore, have to test the admissibility of
\nthe tape recorded statements of the respondent, given in the
\nHigh Court  as also  in this  Court, in\t the  light  of\t the
\nvarious tests  and safeguards  laid down  by this  Court and
\nother Courts,  referred to  above. We  shall give a detailed
\nsurvey of  the nature  and the character of the statement of
\nthe respondent\tin a  separate paragraph  which we intend to
\ndevote to  this\t part  of  the\tcase,  which  is  really  an
\nimportant feature and, if accepted, may clinch the issue and
\nthe controversy\t between the parties on the point of corrupt
\npractice.<\/p><\/blockquote>\n
     This now  brings us  to a\tsummary of the nature of the
\nevidence produced  by the parties. As already stated counsel
\nfor  the  parties  confined  their  arguments  only  to\t the
\nvalidity of  the election relating to Kalaka and Burthal Jat
\npolling booths.\n<\/p>\n
     By virtue\tof a notification dated 17.4.82 the Governor
\nof Haryana  called upon\t the voters  to elect Members to the
\nVidhan Sabha. The last date for filing the nomination papers
\nwas 24.4.82,  the date\tfor scrutiny was 26.4.82 and 28.4.82
\nwas the last date for withdrawal of candidature. The polling
\nwas held  on 19.5.82 and the counting of votes took place on
\n20.5.82. It  is the  last date\twith  which  we\t are  mainly
\nconcerned. To  begin with,  it appears\tthat 24\t persons had
\nfiled their  nomination\t papers\t out  of  which\t three\twere
\nrejected by  the Returning  Officer and\t 16 persons withdrew
\ntheir candidature,  leaving five  persons in the field. Smt.
\nSumitra Devi was a nominee of the Congress (I) party and the
\nrespondent filed  his  nomination  papers  initially  as  an
\nIndependent candidate  but  later  on  joined  Congress\t (J)
\nparty. The  respondent was first in the army but he resigned
\nsoon after  the Indo  Pakistan war in 1971 and started doing
\nbusiness as  a diesel  dealer in partnership with others. On
\nbeing elected  to the  Vidhan Sabha he become its Speaker as
\nhe enjoyed  the confidence  of the  then Chief Minister, Ch.
\nDevi  Lal.   As\t it  happened,\tin  the\t 1980  Parliamentary
\nelections the  Congress (I)  party swept  the polls and Shri
\nBhajan\tLal,  having  left  the\t Janata\t Party,\t joined\t the
\nCongress (I)  party  along  with  many\tof  his\t supporters,
\nincluding the  respondent. But,\t we are\t concerned only with
\nthe 1982  Assembly elections  to the Haryana Vidhan Sabha in
\nwhich the  main candidates  were Smt.  Sumitra Devi  and the
\nrespondent.\n<\/p>\n
418<\/span><\/p>\n
\t\t    KALKA POLLING BOOTH
\n     We would  first take up the allegations levelled by the
\nappellants against  the\t respondent  regarding\tthe  corrupt
\npractices relating to the Kalaka polling booth. According to
\nthe evidence  of R.W.1, the polling started at 7.30 a.m. and
\nwent off  peace\t  fully without\t any untoward  incident till
\n10.30  a.m.   Near  About   this  time,\t  according  to\t the
\nallegations of the appellants, the respondent arrived with a
\nposse of  60-70 persons,  including Des\t Raj, Ram Kishan and
\nothers, to  create disturbance in the polling and to prevent
\nthe votes  from being  polled in favour of other parties. It
\nis also\t alleged that  a mob  of 40-50 persons was variously
\narmed with guns, lathis and swords, and the respondent
\n himself was armed with a gun. As a result of the activities
\nof the\trespondent, some  of the  voters like  Shiv  Charan,
\nGurdial\t and   others  were   forced  to  run  away  without
\nexercising their  right to vote. It was further alleged that
\nnot to\tspeak of  the voters  even the polling staff was not
\nallowed to  do its  duty which resulted in the voting coming
\nto a  stand still.  At this, one Mangal Singh raised serious
\nprotest and on the orders of the respondent he was
\n assaulted.  Ishwar (Lambardar)\t was also hit by the buttend
\nof the\tgun and\t despite the  objections of Basti Ram he was
\nalso assaulted.\t The policemen\twere heavily outnumbered and
\nhad to\tstand as silent spectator to the whole show. Further
\ndetails of  the acts of omission and commission committed by
\nthe respondent\thave been  given in the judgment of the High
\nCourt as  also on pages 10-12 of Vol. III of the Paperbooks.
\nIt is  also alleged  that the respondent with the aid of his
\ncompanions snatched  as many  as 50  ballot papers  from the
\npolling staff  and after marking them in his favour put them
\ninto the  ballot box. Ultimately, on the arrival of the high
\nofficers the  Presiding Officer\t lodged\t a  detailed  report
\ngiving his  own version\t of the\t incident on  the  basis  of
\nwhich FIR  was registered  on 19.5.82 itself. P.W. 7, Mr. N.
\nBalabhaskar,  the   Deputy  Commissioner   of\tMohindergarh
\nDistrict, who  was  the\t Returning  Officer  of\t the  entire
\nconstituency also reached the spot and made enquiries in the
\nmatter. As  a result  of the trouble created at the instance
\nof the respondent, the polling had to be postponed as it was
\ndisrupted for more than an hour.\n<\/p>\n
     These in  short, are  the allegations of the appellants
\nagainst the  respondent in  respect of Kalaka polling booth.
\nWe shall  now refer`to\tthe evidence led by both the parties
\non there  particular points  to show  how far the allegation
\nhave been  proved. To  begin with,  P.Ws. 7,  8,  12  to  18
\ndeposed in  favour of\tthe  appellants in  respect of\tthis
\npolling booth. In order to
\n419<\/span>
\nrebut the  evidence led\t on behalf  of the  appellants,\t the
\nrespondent produced  Roop Chand (R.W.1), Deen Dayal (R.W.2),
\nconstable Mohinder  Singh (R.W.3),  Dhani Ram  (R.W.4),\t Ram
\nKishan (R.W.5) and Suresh (R.W.6) besides respondent himself
\n(R.W. 22).\n<\/p>\n
     Having gone  through the evidence led on behalf of both
\nthe appellants\tand the\t respondent, we\t are clearly  of the
\nopinion\t that\tdespite\t the  quantity\tof  the\t appellants’
\nwitnesses, the quality of the respondent’s witnesses appears
\nto be  much superior  to that  of the P.Ws. ln regard to the
\nrespective facts stated by them.\n<\/p>\n
     We would like to discuss the evidence of the Respondent
\nwitnesses by  way of a comparative assessment ln relation to
\nthe evidence led by the appellants 80 that a true picture of
\nthe cases  of the  parties may\tcome out conspicuously which
\nwould throw  a flood  of light\ton the\tcredibility  of\t the
\nwitnesses concerned.\n<\/p>\n
     We shall now show that the statement of R.W. 1 seems to
\nfind  intrinsic\t  support  from\t the  star  witness  of\t the
\nappellants, viz., P.W. 7, the Deputy Commissioner. P.W. 7 is
\na high officer and, therefore, a respectable witness though,
\nwith due  respect, we might say that his performance in this
\ncase has  not been  very satisfactory and his conduct leaves
\nmuch to\t be desired.  Without going  into further details we
\nmight mention  that his action in recording the statement of
\nthe  witnesses\t on  a\ttape  recorder\twithout\t taking\t the
\nnecessary  precautions\t and  safeguards   cannot  be  fully
\njustified. We are not able to understand as to why should he
\nhave taken  the risk  of recording  the statements on a tape
\nrecorder knowing  full well  that the  evidentiary value  of
\nsuch a\ttape recorded  statement depends on various factors.
\nSince P.W.  was accompanied by his stenographer, there could
\nhave been  no difficulty  in recording\tthe statement of the
\npersons concerned  by dictating\t their statements to him and
\nafter being  typed, signed the same and taken the signatures
\nof the\tdeponent  a  certificate  “Read\t over  and  accepted
\ncorrect.”  If\tthis  was   done  nobody   could  doubt\t the
\nauthenticity of such statements. P.W. 7 admits his statement
\nthat he\t was not  authorised or\t asked by any higher officer
\nthan him  to record  the statement  at the  spot in  a\ttape
\nrecorder  which\t  obviously  he\t  did  at   his\t own   risk.
\nFurthermore, even  if he  had recorded\tthe statements\ton a
\ntape-recorder he  ought not to have kept the cassette in his
\nown custody  but should have deposited it in the Record Room
\naccording to  rules. By keeping the recorded cassette in his
\nown custody, the possibility of tampering with or erasure of
\nthe recorded  speech cannot  be ruled  out. Another  serious
\ndefect in recording the statement on a tape
\n420<\/span>
\nrecorder was that he had to take further care and precaution
\nto see\tthat the  voice of  the person\twhose statement\t was
\nrecorded should be fully identified. Here again, he seems to
\nhave fallen  into an  error resulting  in a  very  anomalous
\nposition  as   some  of\t the  witnesses\t particularly  those
\nappearing for  the respondent,\thave  clearly  denied  their
\nvoices in  the cassette\t and refused  to  identify the same.
\nOthers have  partly admitted  and partly denied their voices
\nalleged to  be those  of the  witnesses for  the respondent.
\nFinally, he  himself admits  that there\t were  a  number  of
\nvoices which  led to  some disturbance\tand difficulties  in
\nputting Two  and two  together. All  these manifest  defects
\ncould have been avoided if in the usual course he would have
\nadministered  oath   to\t the   witnesses,   recorded   their
\nstatements and\tgot the\t same signed  by  them\tas  also  by
\nhimself.  In   a  sanctimonious\t matter\t like  this,  it  is
\nextremely perilous  to take  a risk of this kind. Perhaps it
\nany be\tsaid that  by recording\t the statements\t on  a\ttape
\nrecorder he  save time\tas he had to go to the other polling
\nbooths also.  That, however,  does  not\t solve\tthe  problem
\nbecause even  if the  statements were  recorded\t on  a\ttape
\nrecorder they  had to  be transcribed  and by  the time\t the
\nstatements were\t ready the  witnesses would not be available
\nto append  their signatures.  Moreover, the direct method of
\nrecording  the\tstatement  by  dictating  the  same  to\t the
\nstenographer would  have been as expeditious as recording on
\na tape\trecorder and  transcribing the\tsame thereafter.  We
\nmight mention  here that  the recorded cassette was replayed
\nin this\t Court and  then transcribed  and only\tthe relevant
\nstatements of\tthe respondent took quite a few hours. Thus,
\nby his\tnegligence he  allowed the  recorded  statements  to
\nsuffer from a manifest defect.\n<\/p>\n
     That there\t were some  erasures and lot of other voices
\nhas been  admitted by  P.W. 7 himself in his statement where
\nhe stated Thus:-\n<\/p>\n
\t  “Some gaps  in Ex.  P. 1 have been left out, where
\n\t  the voice was not clear and audible.\n<\/p><\/blockquote>\n
\t  Many people  were standing  at the  polling  booth
\n\t  whose voices have been recorded in the tape.
\n\t  I cannot  now identify  the person  whose voices I
\n\t  had  recorded\t  in  the   tape.  I   also   cannot
\n\t  distinguish the  name of  person whose voice I had
\n\t  recorded  after  hearing  the\t tape\t   …..  My
\n\t  Stenographer had
\n421<\/span>
\n\t  prepared the\ttranscript Ex.P1. It was prepared in
\n\t  my  office.\tMost  of   it  was   done  under  my
\n\t  supervision. I  might have been temporarily absent
\n\t  to attend to certain other work.”<\/p><\/blockquote>\n
     Thus, even\t accepting the\tstatement of  P.W. 7  at its
\nface value  it\tappears\t that  the  various  safeguards\t and
\nprecautions  which  the\t law  requires\tto  be\ttaken  while
\nrecording the statement On a tape recorder were not observed
\nby  him.  That\tby  itself  is\tsufficient  to\tdiscard\t the
\nstatement of  the respondent  recorded on  the tape recorder
\nwithout going  into the\t merits of  the said statement. Even
\nso, we shall deal with this matter in detail when we take up
\nthe recorded  statements in the cassette in the light of the
\nevidence of  the respondent who had been examined by us as a
\ncourt witness to throw light on the subject.\n<\/p>\n
     Another serious  infirmity from  which the\t evidence of
\nthis witness suffers is that while he himself admits that he
\nwas not\t in a position to identify the voices of the persons
\nwhose statements  he  had  recorded,  R.W.  1,\twho  was  an
\nalternative Presiding  Officer at  the Kalaka polling booth,
\nhas completely denied to have made any statement as recorded
\nin the\tcassette and  asserts that he had absolutely no talk
\nwith P.W.  7. Similarly, R.W. 3 (constable) stated that P.W.
\n7 had  talked only  to the Presiding Officer and to no other
\nmember of  the polling\tstaff. No evidence has been produced
\nby the appellants to rebut this part of the evidence of R.W.\n<\/p>\n
3. R.W. 3 says in unconditional terms as follows:\n<\/p>\n
\t  “I did  not  make  any  such\tstatement  which  is
\n\t  recorded in  the tape.  The voice  recorded in the
\n\t  tape is not my voice.\n<\/p><\/blockquote>\n
\t  The statement\t of the witness which is transcribed
\n\t  in Exhibit  P-l was also put to the witness. After
\n\t  hearing the same, the witness stated:<\/p><\/blockquote>\n
\t  I did\t not make  any such  statement to the Deputy
\n\t  Commissioner, nor he interrogated me.’
\n     It Would  thus appear  that the  two witnesses  for the
\nrespondent,  who  were\tgovernment  servants  and  therefore
\nofficial  witnesses,  clearly  and  categorically  d  denied
\nhaving made  any such  statement   in The  cassette. P.W.. 7
\nHIMSELF has  very fairly  and frankly stated that he was not
\nin a Position to identify the
\n422<\/span>
\nvoices either  of the respondent or of the witnesses for the
\nrespondent (R.Ws.  1 and  3)  at  the  time  of\t giving\t his
\nevidence. This,\t therefore, throws  a considerable  doubt on
\nthe truth  of the  statement made  by these witnesses in the
\ncassette recorder.  The law  which  has\t been  analysed\t and
\nexamined by  us is  very clear\tthat identification  of\t the
\nvoices is  very essential.  In this  view of the matter, the
\ntape recorded  statements lose their authenticity apart from
\nother  infirmities   which  we\t shall\tgive   later   while
\nappreciating the evidence of the respondent in this court.\n<\/p>\n
     Another circumstance  that\t goes  a  long\tway  off  to
\ndemolish the  edifice and  the structure  of the  appellants
\ncase regarding\tthe Kalaka polling booth is the statement of
\nP.W. 7\thimself. According  to the  consistent\tevidence  of
\nK.Ws. 1-6,  no incident\t had happened  nor was\tany  trouble
\ncreated by  the respondent  but instead the musclemen of the
\nappellants led\tby Ajit\t Singh tried  to create all sorts of
\ntrouble,  information  of  which  was  sent  to\t the  Deputy
\nCommissioner. Here,  we might notice the admission of P.W. 7
\nwhere he states as follows:\n<\/p>\n
\t  “At about  10.30 a.m.,  when I was between Mandola
\n\t  and Zainabad\tvillages in Jatsuana constituency, I
\n\t  received a  message on the wireless, the apparatus
\n\t  of which  I was  having in my motor car, that Col.
\n\t  Ram Singh  had complained  against the  workers of
\n\t  Congress (I).\t The COMPLAINT\twas that about 40 to
\n\t  50 Congress  (I) workers had attacked the Congress
\n\t  (J) workers at village Kalaka.<\/p><\/blockquote>\n
     If the  wireless message  was sent to the d.C. at about
\n10.30 a.m.  there could\t be no question of the respondent or
\nhis people  to have visited Kalaka polling booth in order to
\ncreate disturbance.  This, therefore, INTRINSICALLY supports
\nthe case  of the  respondent and  demolishes the case of the
\nappellants about  the arrival  of Col..\t Ram  Sing  and\t his
\nrelations, Satbir Sing and Anil Kumar.\n<\/p>\n
     It was  also in  evidence that after the first incident
\nof the\tmorning (wireless  message received  by P  W. 7) two
\nmotor cycles  are said\tto nave\t been  left  behind.  lt  is
\nmanifest  that\t if  the   persons  who\t had  committed\t the
\ndisturbances alongwith\ttheir companions  did not  belong to
\nthe party  of the respondent, as the wireless message shows,
\nthen the  only other irresistible conclusion, by the process
\nof elimination,\t would be  that the  motor cycles  must have
\nbelonged  to   Ajit  Singh   and  his  companions  who\twere
\nsupporters of the Congress (I) candidate.\n<\/p>\n
423<\/span><\/p>\n
     Thus, this\t being the  posit on  and the  real state of
\naffairs\t  at the  spot, in  a  case  like  the\tpresent\t one
\ninvolving high\tstakes and serious handicaps, we should have
\nexpected the  conduct of  the senior  officers to  have been
\ncompletely above board.\n<\/p>\n
     Another reason which throws a considerable doubt on the
\ntestimony of  the witnesses of the appellants is that P.W. 7
\nhimself\t deposed   that\t he  did  not  receive\tany  written
\ncomplaint from\tthe polling officer or the Presiding Officer
\nor from\t any other  person at  the time\t when he visited the
\nKalaka polling\tbooth. The appellants tried to bring on file
\ncertain complaints  made to  P.W. 7 by Suraj Bhan and others
\nbut as\tthe  original  complaint  had  not  been  filed\t the
\ncomplaint  produced  by\t the  appellants  apart\t from  being
\nclearly inadmissible  cannot be\t relied on  particularly  in
\nface of the clear admission of the Deputy Commissioner (P.W.\n<\/p>\n
7) that\t he did\t not receive  any written complaint from the
\nofficers concerned.\n<\/p>\n
     Another intrinsic\tcircumstance  which  demolishes\t the
\ncase of the appellants about the presence of a mob headed by
\nSatbir Singh  and  Anil\t Kumar\t(said  to  be  relatives  of
\nrespondent) is\tthat P.W.  10 (A.S.I.)\twho was accompanying
\nthe D.C.  said that  he received the information that one of
\nthe candidates, viz., Col. Ram Singh, alongwith some persons
\nhad reached  Kalaka polling  booth and\tstarted intimidating
\nthe polling staff and the public. Here this witness is sadly
\ncontradicted by\t the statement\tof the\tDeputy\tCommissioner
\nthat the wireless message received by him was not in respect
\nof Col. Ram Singh and his men but the message which the D.C.
\nactually received  was that  the disturbance  was created by
\none  Ajit   Singh  at  the  instance  of  the  Congress\t (I)
\ncandidate. It  is, therefore,  impossible to accept the case
\nof the\tappellants that the respondent and his companions on
\nthe one\t hand and  Ajit Singh with a posse of his own men on
\nthe other had reached the Kalaka polling booth at almost the
\nsame time.  Indeed, if\tthis had  been so  there should have
\nbeen a\thuge riot  and a  pitched  battle  between  the\t two
\nparties but  no witness\t says so.  The evidence merely shows
\nthat Col.  Ram Singh  had reached  the place just after Anil
\nKumar and  Satbir Singh\t alongwith their  men left and after
\nthe Presiding  Officer had  set the matters right. me A.S.I.
\n(P.W.10) also  says that 3-4 persons had made a complaint in
\nwriting to him but he had not seen those reports on the date
\nwhen they  were made  to him but it must be on the file. The
\nwitness was  shown the\tfile of\t complaints  and  he  admits
\nthus:-\n<\/p>\n
\t  “I have seen the file of complaints which has been
\n\t  shown to  me now.  That complaint  is not  in this
\n\t  complaint file.”<\/p><\/blockquote>\n
424<\/span><\/p>\n
     What happened  to the complaint received by the witness
\n(P.W. 10) is not known or can be anybody’s guess-perhaps the
\nsame vanished into thin air or may be was non-existent.\n<\/p>\n
     The matter\t does not  rest here  but there\t is one more
\ninherent circumstance which completely falsifies the case of
\nthe appellants.\t The Presiding Officer was shown Ex. P-5 and
\nhe stated  that he  had not  mentioned anything\t in the said
\ndocument about intimidation of the voters and other persons.
\nHe (P.W. 8) categorically states thus :-\n<\/p>\n
\t  I have  seen Ex.  P-5. Column\t No. 20\t (a)  is  to
\n\t  furnish information  about “Intimidation of voters
\n\t  and other persons . I have not mentioned anything-
\n\t  in this column but have crossed it.”<\/p><\/blockquote>\n
     Indeed, if\t there was  any such intimidation, being the
\nPresiding Officer  he would  not  have\tcrossed\t the  column
\nregarding the same. He admits that he had served in the Ahir
\nHigh school  which appears  to have  been patronized  by Rao
\nBirendra  Singh\t  and  the  possibility\t that  this  witness
\nconcealed the  truth (as appears from his evidence) and made
\na statement  regarding intimidation  to oblige\tRao Birendra
\nSingh cannot  be ruled out. This is because he merely denies
\nknowledge that\tthe Ahir  School belonged  to  Rao  Birendra
\nSingh but  he does  not say  affirmatively that Rao Birendra
\nSingh had  absolutely no  connection with the said School. .
\nComing now  to the  rest of  the evidence of R.W. 1, he says
\nthat after  the departure of Ajit Singh, Col. Ram Singh came
\nto the\tKalaka polling\tbooth and he was alone at that time.
\nThe respondent\tin the presence of R.W. 1 told the Presiding
\nOfficer that  he should\t not be\t partial to  any  party\t and
\ncomplained to him about the beating up of his polling agent.
\nHari Singh  (P.W. 8),  the  Presiding  Officer\tassured\t the
\nrespondent that\t he would  not permit  anything\t further  to
\nhappen. Thereafter, a number of people came there and stoned
\nthe polling  booth and\tdespite the  protests of the witness
\nand the\t Presiding Officer  they tried\tto snatch the ballot
\nbox which  was, however, protected by the Presiding Officer.
\nIn the meantime, the police party arrived and the people who
\nhad gathered  there sped  away. Much was made by the counsel
\nfor the appellants regarding omission of the witness to make
\nany report  to the  police. But\t not much  turns  upon\tthis
\nbecause the  witness clearly  admits that  as the  Presiding
\nOfficer was in charge of the whole show, he had reported the
\nmatter to  him who  had assured him that he would set things
\nright. A number of
\n425<\/span>
\nquestions were put to him which are of not much significance
\nbecause the  answer of\tthe witness was that whatever he had
\nto say\the had\ttold his  immediate superior,  the Presiding
\nOfficer. It  is obvious\t that K.W.  1 was  neither a  police
\nofficer nor  a person holding any important job but was only
\na teacher in a school. Perhaps he thought that it was enough
\nif he informed his superior (Presiding Officer) who would do
\nthe needful.  The witness  also admits\tthat he had told the
\nPresiding Officer  about the  visit of\tAjit Singh  and\t his
\ncompanions and\tthe trouble  created by them but he was told
\nby the\tPresiding Officer  that he  had recorded the same in
\nthe Diary;  though in the presence of the witness he did not
\nwrite any  report nor  did he  handover any  report  to\t the
\npolice in  his presence.  The witness  then goes on to state
\nthat after  a few  days of  the elections,  the\t police\t had
\nobtained an  affidavit from  his but  no attempt was made by
\nthe appellants\tto get that affidavit summoned, produced and
\nexhibited in  the case\tand in the absence of that the court
\nis entitled  to presume\t that whatever\tthe witness may have
\nsaid to\t the Presiding\tOfficer was  contained in  affidavit
\nalso.\n<\/p>\n
     R.W. 2,  Deen Dayal,  who was  a member  of the polling
\nstaff, fully  corroborates the\tevidence of R.W. 1 regarding
\nthe arrival  of Ajit Singh armed with pistol and accompanied
\nby a number of persons. He further corroborates that some of
\nthe companions\tof Ajit\t Singh removed\tthe polling agent of
\nCol. Ram  Singh and  then asked\t the witness  and others  to
\nhandover the  ballot papers  but as  the witness resisted he
\nwas  beaten   up  by  Ajit  Singh  and\tothers\tbut  on\t the
\nintervention of\t the Presiding\tOfficer\t the  matter  rested
\nthere. Thereafter,  Col. Ram Singh came who was also assured
\nby the\tPresiding Officer  that needful\t would\tbe  done.  A
\ncapital was made by the appellants before the court below as
\nalso here  regarding the veracity of this witness because he
\ndid not\t make any report to the D.C. Or the S.D.O. about his
\nbeing beaten  up. As  already  mentioned,  the\twitness\t was
\nmerely a  teacher and  he appears  to have been satisfied by
\nthe assurance  given to\t him by\t the Presiding\tOfficer that
\nnecessary action  would be taken. He further states that the
\nD.C. Only  talked to  the Presiding  Officer and  not to any
\nother member  of the  polling staff.  This  shows  that\t the
\nevidence of this witness is true.\n<\/p>\n
     The next  witness on the point is RW 3 (Mohinder Singh)
\nwho was\t a police  constable deputed to the spot to maintain
\nlaw and\t order. The  sequence of events that happened at the
\npolling booth  and which have been deposed to by the witness
\nmay be summarised thus:\n<\/p>\n
426<\/span><\/p>\n
     (1) while\tthe polling  was going\ton, between 7.30 and
\n8.00 a.m.,  Ajit Singh arrived with his companions and tried
\nto create all sorts of trouble.\n<\/p>\n
     (2) After\tthe departure  of Ajit Singh, Col. Ram Singh
\ncame alone  and was assured by the Presiding Officer that he
\nwould not R allow any further trouble to take place.\n<\/p>\n
     (3) After Col. Ram Singh had left the place a number of
\npeople from  the village  came and  wanted to poll forcibly,
\nand 2-3\t persons came out of the polling booth with a ballot
\nbox.\n<\/p>\n
     (4) He  (RW 3)  snatched the ballot box from the people
\nand returned the same to Dhani Ram (RW 4).\n<\/p>\n
     The witness states that after some time the S.D.O. came
\nthere and  after having\t a talk\t with the Polling Officer he
\nwent away.  After about\t half-an-hour or  45 minutes  of the
\ndeparture of  the  S.D.O.,  the\t D.C.  arrived\tand  on\t his
\nintervention the  polling again started at about 12 mid-day.
\nThe  witness   vehemently  denied  that\t his  statement\t was
\nrecorded by  the D.C.  in a  tape-recorder and said that the
\nvoice recorded in the tape-recorder (which was played to him
\nin court)  was not his. He even goes to the extent of saying
\nthat he\t did not see any tape-recorder with the D.C. nor did
\nhe have any talk with him.\n<\/p>\n
     The following  important points  may be  noted from his
\ntestimony –\n<\/p>\n
     1) The  sequences\tof  events  narrated  by  him  gives
\n     sufficient strength to the case of the respondent.\n<\/p><\/blockquote>\n
     2) his positive evidence that the voice in the cassette
\n     was not his.<\/p><\/blockquote>\n
     The  witness   was\t afterall   a  police  constable  (a
\ngovernment official)  and would\t not have  the course make a
\nfalse statement\t before the  D.C. Moreover, evey the D.C. in
\nhis statement  has frankly  admitted that  he was  not in  a
\nposition to  identify the  voice of this witness or for that
\nmatter of others at the time of his deposition. Thus, in the
\neye of\tlaw, there is no legal evidence at all to prove that
\nthe voice  Recorded in.\t the tape-recorder  was the voice of
\nthis particular witness.\n<\/p>\n
     The next  witness is  RW 4 (Dhani Ram) who was also one
\nof the\tmembers of  tile polling  staff and  a teacher\tin a
\nGovernment
\n427<\/span>
\nPrimary School. He fully corroborates the story given by RWs
\n1 and  3 and  also gives  the sequence of events referred to
\nabove while  dealing with the evidence of RW 3. His evidence
\ndoes not  appear to  be of much consequence. At any rate the
\nlearned High  Court has\t fully discussed his evidence and we
\nagree with  the conclusions  arrived at by the High Court in
\nthis respect.\n<\/p>\n
     RW 5 appears to be a voter of the Kalaka polling booth.
\nHe has\tbeen examined to prove the fact that when Ajit Singh
\nand his\t party came  to the  booth, one\t Tula Ram  who was a
\npolling agent  of Col.\tRam Singh  and real brother of RW 5,
\nwas beaten  up by Ajit Singh and his party and when he tried
\nto rescue  him he  was also beaten up and their clothes were
\ntorn and  it was  with great  difficulty that Mohinder Singh
\n(RW 3)\twho was on duty rescued him and his brother from the
\nclutches of Ajit Singh and his party. He further states that
\nhe, alongwith  his brother  Tula Ram, went to Rewari to meet
\nCol. Ram  Singh and  narrated the  whole incident to him. In
\ncross-examination, the\twitness says that he and his brother
\nhad received  fists and slaps as a result of which they bled
\nbecause of injuries on their bodies. He further says that as
\nthere was  no visible  mark  of\t injury\t they  did  not\t get
\nthemselves medically  examined.\t He  is\t an  unsophisticated
\nvillager and  once having  reported the\t matter to  Col. Ram
\nSingh he  did not  think it  necessary to file any complaint
\nwith the police.\n<\/p>\n
     RW 6  (Suresh) was\t also a\t voter waiting in a queue to
\ncast his  vote when at about 8.30 a.m. AJit Singh aimed with
\na revolver,  appeared on the scene and entered the booth. He
\nheard hue and cry from inside the booth. He corroborates the
\nevidence of  RW 5  about the  beating up of Tula Ram and Ram
\nKishan (RW 5). He goes on to state that after about half-an-
\nhour of\t the departure of Ajit Singh and his party, Col. Ram
\nSingh came  and after  spend about  5-6 minutes\t inside\t the
\nbooth he  drove away.  The witness  further says  in  cross-
\nexamination  that  the\tpolling\t did  not  start  after\t the
\ndeparture of  AJit Singh  in view of the commotion that took
\nplace there.  After the\t departure of  Col.  Ram  Singh\t the
\nS.D.O. and the D.C. also came and ultimately the polling was
\ncontinued. The\twitness finally\t says that he did not inform
\nCol. Ram  Singh about  the incident  nor did anybody enquire
\nfrom him anything about the same. In these circumstances, we
\ndo  not\t  think\t that\tthe  evidence  of  this\t witness  is
\ncreditworthy.\n<\/p>\n
     The other\twitnesses examined  by the respondent not in
\nrespect of the Kalaka polling booth.\n<\/p>\n
428<\/span><\/p>\n
     The picture  would not  be complete  unless we give the
\nother version of the story put forward by the appellants who
\nhave also examined many witnesses.\n<\/p>\n
     PW 8  is the  only witness who has identified his voice
\nrecorded in  the  tape\trecorder  by  the  D.C.\t when  other
\nwitnesses, including  the D.C., could not do so. That itself
\nshows that he has leanings towards the appellants.\n<\/p>\n
     Another  important\t  aspect  which\t  emerges  from\t the
\nevidence of  PW 8 is that, according to him, the total votes
\npolled in the Kalaka polling booth were 573, the break-up of
\nwhich is as follows:-\n<\/p>\n
\t   between 7.30 to  8.45 a.m.\t      58\n\t   \"\t  12 Noon-  2.00 p.m.\t     205\n\t   \"\t 2.00 p.m.- 4.30 p.m.\t     109\n\t\t\t\t   -------\n\t\t\t\t     372<\/span>\n\t\t\t\t   -------\n<\/pre>\n
     This means\t that if  there was any disturbance it would
\nhave taken  a very  short time\tin view\t of the\t calculation
\ngiven by  this witness.\t If, however, it is a fact that both
\nparties –  one led  by Ajit  Singh  and\t the  other  led  by
\nrespondent –  had a sort of a direct confrontation, it would
\nhave been  extremely difficult for the polling to start only
\nafter an  interval of  an hour\tand  a\thalf.  Moreover,  no
\nexplanation has\t been given  by this  witness of  the  votes
\npolled in  between 8.45\t to 10.30 a.m. The tally of votes is
\nnot consistent\twith his evidence and is ar. intrinsic proof
\nof the\tfact that  his evidence\t is not\t true.\tThe  general
\nimpression which  we gather  after perusing  his evidence Is
\nthat he\t does not  appear to  be a  witness  of\t truth\tand,
\ntherefore, we  find it\tdifficult to rely on the evidence of
\nthis wiriness. Moreover, we shall have to say something more
\nregarding the  credibility of this witness when we deal with
\nthe documentary evidence.\n<\/p>\n
     PW 10  (Sri  Krishan)  was\t the  S.D.O.  and  Returning
\nOfficer tor  the Rewari\t constituency. According  to him, he
\nremained in  his office\t upto 10.00  a.m. and  after that he
\nstarted touring\t the various  polling booths.  He goes on to
\nsay that  on 19.5.82  he reached Kalaka at about 11.00-11.30
\na.m. on\t receipt of  a complaint to the effect that Col. Ram
\nSingh, alongwith his companions, had tried to intimidate the
\npolling staff and the voters. When he arrived at the spot he
\nfound the  polling at  a standstill.  This actually supports
\nthe case of the respondent that the polling went on smoothly
\nfrom 8.00 a.m. to 11.00 a.m.
\n429<\/span>
\nand the\t trouble must have been started either by Ajit Singh
\nor by\this  men. The  poll could  not have restarted before
\n1.00 to\t 1.30 p.m. because, according to the evidence of the
\nD.C., the  polling staff  had been  interrogated  and  their
\nstatements were tape-recorded which would have taken quite a
\nlot of\ttime. This  fact intrinsically knocks the bottom out
\nof the case made out by PW 8 regarding timing of the voting.\n<\/p>\n
     PW 14  (Puran) is\tthe next witness who does not appear
\nto be  of any  importance because  it is only a case of oath
\nagainst oath. Moreover, a perusal of his evidence shows that
\nthis witness  ran away\tafter Col.  Ram Singh  is alleged to
\nhave threatened\t him. tie then returned and cast his vote at
\nabout 3.00  P.M. Not much turns upon to evidence. Rather his
\nevidence shows\tthat he reached the spot nearabout 3.00 p.m.
\nwhen peace  had been  restored and the polling had restarted
\nsmoothly.\n<\/p>\n
     More or  less, to the same effect is the evidence of PW
\n16 (Ishwar Singh) with the difference that this witness says
\nthat he\t was assaulted\tbut then  except informing  the S.l.
\nabout the  injury he  took  no\tfurther\t steps.\t If  he\t was
\nactually injured he would have made it a point to report the
\nfact of\t his assault  to the  D.C. Or  the S.D.O.  Or  other
\nofficers who  had assembled  after the\tmiscreants had\tgone
\naway. This  obviously he  did not  do. Lastly he admits that
\nhis  family   was  supporting  the  Congress  (I)  candidate
\n(Sumitra Bai)  and, therefore,\th could not be said to be an
\nindependent witness.\n<\/p>\n
     PW 17  (Amar Singh)  was admittedly  a polling agent of
\nSumitra Bai.  The witness says that when the D.C. and S.D.O.
\ncame he\t made a\t complaint to them in writing which was also
\nsigned by Suraj Bhan, Mangal Singh, Basti Ram and others. He
\nFurther says  that he had verbally complained to Deep Chand,
\nthe ASI\t but he\t took no action. He states that the D.C. had
\nhowever made  an enquiry  from him but the D.C. does not say
\nanything about\tthis witness  and being\t a  most  interested
\nwitness it  is difficult for us to rely on this witness when
\nthe High  Court which  had the\topportunity of\twatching the
\ndemeanour and  behavior of  this  witness Placed no reliance
\non him.\n<\/p>\n
     The evidence of PW 18 is almost in the same terms. Like
\nothers, he also seems to made a written report to the police
\nstation which  has not\tbeen produced and no action seems to
\nhave been  taken thereon. It is rather strange that a number
\nof witnesses  say that\tthey had  made an  oral\t or  written
\ncomplaint yet  no action  was taken thereon which shows that
\nthe statement of the witness is a purely cooked up story.\n<\/p>\n
430<\/span><\/p>\n
     This closes  the evidence\tso far\tas  the\t prosecution
\nwitnesses are concerned. The learned Judge of the High Court
\nhas taken  great pains\tin very\t carefully  marshalling\t and
\nanalysing the evidence and so far as Kalaka polling booth is
\nconcerned, the\tfindings of  the High Court may be extracted
\nthus:\n<\/p>\n
\t  “The evidence\t of the\t PWs on\t this point  is\t not
\n\t  corroborated. The  ownership of  the motor  cycles
\n\t  abandoned by\tthe party  of the respondent was not
\n\t  traced. The  ownership could\tbe established\tfrom
\n\t  their Registration  Books. No\t effort was  made to
\n\t  connect  those   with\t the   respondent   or\t his
\n\t  supporters. This  shows that\tthe PWs were drawing
\n\t  upon their  imagination to  make out stories about
\n\t  the detention\t of the\t persons  and  the  forcible
\n\t  polling at that polling station by the res pondent
\n\t  .\n<\/p><\/blockquote>\n
\t  When the evidence on the file of the case is given
\n\t  a close  look it  leads to  an inference  that the
\n\t  petitioners have  failed to prove this part of the
\n\t  charge beyond reasonable doubt.\n<\/p><\/blockquote>\n
\t  Shri Sri  Krishan  SDO  (Civil)  stated  that\t 3\/4
\n\t  persons gave\thim a  complaint at Kalaka about the
\n\t  incident.  It\t  was  a   signed  complaint.\tThat
\n\t  complaint is\tnot traceable.\tIt was\tnot found in
\n\t  the complaint\t file. Nor  was it  entered  in\t the
\n\t  complaint register.  That com\t plaint could  throw
\n\t  light on  the incident  if  at  all  lt  had\tbeen
\n\t  produced.  The   oral\t evidence   has\t failed\t  to
\n\t  convincingly make  out this  allegation  that\t the
\n\t  voters were threatened at Kalaka.\n<\/p><\/blockquote>\n
\t  From the  overall assessment\tof the\tpetitioners’
\n\t  evidence  and\t  the  detailed\t discussion  in\t the
\n\t  previous  paragraphs\t concerning   this   polling
\n\t  station it  has left an impression in my mind that
\n\t  the role  assigned to\t the respondent has not been
\n\t  proved beyond\t reasonable doubt. Lot of suspicions
\n\t  which are  indicated in  the\tprevious  paragraphs
\n\t  attach to  his evidence and it is difficult to say
\n\t  that the inference in favour of the
\n431<\/span>
\n\t  petitioners’ case is irresistible. The evidence of
\n\t  the A\t petitioners is not of the type, which could
\n\t  persuade me to take a decision in their favour.”<\/p><\/blockquote>\n
     After going  through the  evidence very  carefully,  we
\nfind ourselves\tin complete  agreement with  the conclusions
\narrived at  by the learned Judge of the High Court so far as
\nKalaka polling booth is concerned.\n<\/p>\n
\t\t BURTHAL JAT POLLING BOOTH
\n     This now  brings us  to the second and the last limb of
\nthe arguments  advanced by  counsel for the appellants – the
\nevidence  regarding  the  corrupt  practice  in\t respect  of
\nBurthal\t Jat  polling  booth  (for  short,  referred  to  as
\n‘Burthal booth’).  To prove  the allegations, the appellants
\nproduced PWs 6,7,10, 26 to 33 and in order to rebut the case
\nthe respondent examined RWs ll, 12, 13, 14, 20 and 22. D
\n     We\t would\tfirst  take  up\t the  evidence\tled  by\t the
\nappellants. PW 6, Krishan Bihari, is merely a formal witness
\nwho has been examined with the complaint register of No.86 –
\nRewari constituency in which both Kalaka and Burthal polling
\nbooths fell.  His evidence. therefore, does not appear to be
\nof any significance.\n<\/p>\n
     The  next\t important  witness  is\t PW  7,\t the  Deputy
\nCommissioner of\t Mohindergarh District\t( N. Balabhaskar), a
\nmajor part  of whose  evidence has already been discussed by
\nus while  dealing  with\t his  evidence\trelating  to  Kalaka
\npolling booth. So far as Burthal polling booth is concerned,
\nhe states  that he had received a complaint that a worker of
\nCongress (J)  candidate was attacked by villagers of Burthal
\nJat and his main purpose to visit the villages was to verify
\nthe truth  or falsity of the complaint. But, when he went to
\nthe Burthal  booth, the\t polling officer  expressly told him
\nthat nothing  had happened  inside the\tbooth. Some  of\t the
\npolling officials  who were  there, however,  told him\tthat
\nthere was  some incident  outside the  polling booth but the
\nidentity of  the persons  responsible for  the same  had not
\nbeen established.  PW 7\t further goes  on to  say that\tsome
\nvillagers at  that  place  told\t him  that  the\t workers  of
\nCongress (J)  had come\tthere in  a jeep and tried to create
\ntrouble and  they were\table to\t detain two  person and\t the
\nthird one  had run  away. The  D.C. interrogated  those\t two
\npersons who  told him  that they  had no connection with the
\njeep. He  further admits that he did not interrogate them as
\nto which
\n432<\/span>
\npolitical party\t they belonged\t– whether  Congress  (I)  or
\nCongress (J).  he further  testifies to the fact that a jeep
\nwas found  at the  spot with some sticks lying inside it but
\nhe did\tnot see\t any motor-cycle near the polling booth. The
\npersons who  were attacked  at Burthal\tby the villagers and
\nwhom he\t did not interrogate, for reasons best known to him,
\nwere Satbir Singh and Anil Kumar. This part of the evidence,
\ntherefore, corroborates\t the case  of  the  respondent\tthat
\nassuming Satbir Singh and Anil Kumar were companions of Col.
\nRam Singh  but they  had  undoubtedly  been  attack  at\t the
\nvillage and  the D.C.  also admits  that the Sarpanch to the
\nvillage Burthal\t had complaint\tto him regarding this matter
\nwhen he\t reached Burthal  Booth. PW  7\tthen  says  that  at
\nBurthal\t he  recorded  the  conversation  of  the  Presiding
\nOfficer in detail  though he admits that some portion of the
\nrecorded conversation  was erased  inadvertently due  to his
\nown voice being recorded there.\n<\/p>\n
     This is  all that\twitness says  in respect  of Burthal
\nbooth. Accepting the entire testimonial as it is without any
\nfurther comment,  it is\t not proved or established as to who
\nwas the\t person )  or persons  at whose instance the corrupt
\npractice  was\tcommitted.  There   WAS,  however,  a  clear
\nadmission by  the D.C.\tthat it\t was the  respondent’s party
\nwhich had  been\t aggrieved.  It\t is  rather  surprising\t and
\nintriguing that although the D.C. had gone to hold a regular
\ninquiry into  the irregularity committed at Burthal booth he
\ndid not\t care to interrogate Satbir Singh and Anil Kumar who
\nwere present  there particularly  when, as  he himself says,
\nthe Sarpanch  of the village had complained to him regarding
\nsome trouble. lt seems that PW 7 contended himself merely by
\nrecording the statement of the Presiding officer in the tape
\nrecorder which\twas really  a dictaphone,  as  told  by\t the
\nwitness himself. t’
\n     A very important admission has been made by the witness
\nwhich completely  nullifies the\t statements recorded  in the
\ntape recorder. In this connection, he states thus:\n<\/p>\n
\t  “I cannot  now identify  the person whose voices I
\n\t  had  recorded\t  in  the   tape.  I   also   cannot
\n\t  distinguish the  name of  person whose voice I had
\n\t  recorded after hearing the tape.<\/p><\/blockquote>\n
     The witness  was cross-examined  regarding the cassette
\nrecorder and he has made the following admissions:\n<\/p>\n
433<\/span><\/p>\n
     a) that  there was\t no instructions from the Government
\n     for recording such conversations as he had done,\n<\/p><\/blockquote>\n
     b) that even if he was supplied a dictaphone, it had to
\n     be\t mainly\t  used\tby   him  for\trecording  his\t own
\n     observations in his own voice.\n<\/p><\/blockquote>\n
     c) that  the cassette  and the  dictaphone remained all
\n     the tine  with him and were not deposited by him in the
\n     record room.\n<\/p><\/blockquote>\n
     d) even  a copy  of  the  transcript  of  the  recorded
\n     statements\t prepared   by\this   stenographer  was\t not
\n     deposited in the official record room, and\n<\/p><\/blockquote>\n
     e) that  there were  some gaps  in\t the  recorded\ttape
\n     (Ex.P-1) which had been left out and at some places the
\n     voice was not clear and audible.<\/p><\/blockquote>\n
     PW 7  in his  statement says that the statements of the
\nwitnesses  recorded   by  him\twere  transcribed   by\t his
\nstenographer under  his supervision in his office but he may
\nhave temporarily gone out to attend to some other work. This
\nis rather important because if the statements were typed out
\nin his\tabsence it  would have\tbeen very  difficult for his
\nstenographer to find out whose statement he was transcribing
\nwhich throws  a considerable doubt on the credibility of the
\nrecorded statement. To a direct question by the court – “Can
\nyou  rule   out\t the   possibility  of\ttampering  with\t the
\ntranscript” –  his answer  was –  “I do\t not think if it was
\npossible”. The\tanswer is self-evident and frightfully vague
\nso  as\t not  to   exclude  the\t possibility  of  tampering.
\nOrdinarily, the\t admissions made  by PW\t 7 would  have\tbeen
\nsufficient to  discard the  statements recorded in the tape-
\nrecorder. We  shall, however,  develop this  aspect  of\t the
\n[matter when  we deal  with the\t statements recorded  on the
\ntape-recorder.\n<\/p>\n
     The next  witness is  Shri Krishan,  S.D.O., PW l(). We
\nhave already  discussed a  major part  of his evidence while
\ndealing with  the Kalaka  polling booth\t and pointed out the
\nserious infirmities  from which\t his evidence  suffers. Same
\ncomments would\tnaturally apply\t to his evidence relating to
\nBurthal booth to show that his evidence is not creditworthy.
\nHowever, we  shall briefly  summarise what he had said about
\nBurthal booth.\tIn the\tfirst place,  he states that when he
\nreached Burthal,  alongwith D.C.,  he saw  Satbir  and\tAnil
\nKumar surrounded by the people of that village.\n<\/p>\n
434<\/span><\/p>\n
He also\t saw a\tjeep containing\t some sticked  parked there,
\nwhich was,  on the  instructions of  the  D.C.,\t taken\tinto
\ncustody by the police. Satbir and Anil Kumar were also taken
\ninto custody  under the orders of the D.C. In support of his
\nevidence he relies on Ex.P-9, the complaint which was handed
\nover to\t him by\t one Mam  Chand. The  manner  in  which\t the
\ncomplaint was  handed over  to PW 10 and as to the author of
\nthe complaint  are rather  dubicious particularly in view of
\nthe evidence  of Mam  Chand (PW\t 35). PW 35 was shown Ex.P-9
\nand after  seeing the  same he\tstated that the same did not
\nbear his  signatures. He  also deposed\tthat there  are\t two
\nother persons  by the name Mam Chand, e.g., there is one Mam
\nChand who  is the  son of  Kehar Singh\tand the\t name of the
\nfather of  the other  Mam Chand was not known to him. It is,
\ntherefore, manifest  from the  admission of  PW 35  that the
\ncomplaint EX.P-9  was merely  handed over  to PW  10 by\t Mam
\nChand but  neither the\tcontents were  proved nor  the maker
\nthereof had  been  examined.  Therefore,  the  complaint  is
\nclearly inadmissible,  as  the\tpersons\t who  hands  over  a
\ncomplaint cannot  be said  to be  the author of the same. We
\nwould, therefore,  have to  exclude Ex.P-9 from the array of
\nthe documentary\t evidence. There  is nothing  further  which
\nthis witness proves.\n<\/p>\n
     PW 26,  Shri Mahabir  Singh, is another witness who has
\nbeen examined  to prove\t the active  participation  of\tAnil
\nKumar and  Satbir Singh. Far from supporting the case of the
\nappellants he supports the case of the respondent. He states
\nthat he\t was a\tvoter and  had cast  his vote.\tThe  learned
\ncounsel for  the appellants, however, did not choose to rely
\non this\t witness and  made a prayer for cross-examining him.
\nIn cross-examination  all that PW 26 said was that he was on
\nduty as an election agent of the respondent inside the booth
\nand that he knew Satbir Singh previously but did not know to
\nwhich place  he belonged. Thus, the evidence of this witness
\nis of no assistance to the appellants.\n<\/p>\n
     PW 27  (Dharam Vir)  was a\t voter and, according to his
\nevidence, he  had gone\tto cast\t his vote at about 8.00 a.m.
\nwhen near  about that time Col. Ram Singh accompanied by 50-
\n60 persons came there and summoned Mahabir and Udai Bhan who
\nwere his  election agents  and told them that he was leaving
\nsome persons  behind and that they should see to it that no-
\none should  be\tpermitted  to  vote  for  the  Congress\t (I)
\ncandidate. The\twitness further states that Satbir Singh was
\namongst the  15-20 persons left behind by Col. Ram Singh. In
\ncross-examination he  admits that  he cannot identify Satbir
\nSingh. It  is, therefore,  difficult lo believe as to how he
\nnamed Satbir Singh as one of the persons left behind by
\n435<\/span>
\nCol. Ram  Singh. His  evidence on  this point  appears to be
\nclearly A  false. The  sequence of events mentioned by other
\nwitnesses shows\t that Col.  Ram Singh had reached there near
\nabout 9.30  a.m. and  he had  come alone which fact has been
\nsupported by  an overwhelming  majority of witnesses for the
\nrespondent. Therefore,\twe find\t it difficult  to place\t any
\nreliance on  this witness  and his evidence does not inspire
\nany confidence and must be rejected.\n<\/p>\n
     The next witness is Thaver Singh, PW 28 who also speaks
\nin the\tsame terms  as PW  27. We  are unable  to place\t any
\nreliance on  this witness because he was the most interested
\nwitness being a polling agent of the Congress (I) candidate.
\nDuring\tcross-examination   he\tstated\t that  he   verbally
\ncomplained to  the Presiding  Officer about  the conduct  o
\nCol. Ram  Singh but  he did  not make  any compliance to any
\nofficer in  writing. His  evidence,  therefore,\t carried  no
\nweight unless corroborated by some unimpeachable documentary
\nevidence.\n<\/p>\n
     PW 29, Amir Chand, also repeats the same story as PW 28
\nbut there  is no  evidence to  corroborate him.\t Reading  in
\nbetween the  lines of  his evidence it appears that he was a
\nstrong supporter  of Rao  Birendera Singh though he does not
\ncommit himself in so many words.\n<\/p>\n
     PW 30  (Surjit Singh)  and PW  31 (Raghubir Singh) have
\nrepeated  the  same  parrot  like  story  as  the  preceding
\nwitnesses. In  the absence  of any  documentary evidence  to
\ncorroborate their  testimony, we  find it  unsafe to rely on
\ntheir evidence.\n<\/p>\n
     PW 32,  Shamsher Singh,  is rather an important witness
\nand according  to his  evidence he went to the Burthal Booth
\nat about  7.30 a.m.  and returned to his house at about 8.30
\na.m. He\t then again  went to the polling booth at about 2.30
\np.m. He\t admits that  he was a polling agent of Smt. Sumitra
\nBai, the  Congress (I)\tcandidates, and states that while he
\nwas on\this way\t to the booth in the afternoon he met Satbir
\nSingh and Anil Kumar who asked him to support Col. Ram Singh
\nand when  he told  them that  it was  one’s  own  choice  to
\nsupport any  candidate an  altercation took place which was,
\nhowever, stopped  with the  arrival of Mam Chand, Ram Singh,
\nKishori and  some other people. Thereafter, an ASI of police
\ncame there in a jeep who intervened in the matter and in his
\npresence also  Satbir  Singh  started  uttering\t abuses.  He
\nfurther says  that he  found a\tjeep parked there and people
\ntold him  that it  belonged to\tCol. Ram  Singh, a statement
\nwhich is clearly inadmissible. He finally says that when the
\nD.C. and the
\n436<\/span>
\nS.D.O. came there he informed them of the incident. In cross
\nexamination he\tadmits that  he made no report in writing to
\nthe police  that he  was beaten\t up nor\t did he\t get himself
\nmedically examined.  He also  did not  file any complaint in
\nany  court   against  Satbir   and  Anil   Kumar.  In  these
\ncircumstances, we find it difficult to rely on his evidence.\n<\/p>\n
     Kishori Lal,  PW 33 says that he was a Chowkidar of the
\nvillage Burthal\t Jat. He  says that  when he had gone to the
\npolling booth  at about\t 2.30\/3.00 p.m.\t to cast his vote he
\nfound Satbir Singh and Anil Kumar having an altercation with
\nShamsher Singh,\t PW 32.\t He rescued  Shamsher Singh with the
\nhelp of\t some other per sons. The witness, being a chowkidar
\nof the\tvillage, should have immediately reported the matter
\nto the\tD.C. Or\t the S.D.O. Or the ASI, all of whom had come
\nto the spot but he did not do so and kept quiet which speaks
\nvolumes against the credibility of his evidence.\n<\/p>\n
     More or  less to  the same effect is the evidence of PW
\n34 (Ram\t Narain) who is also a Lambardar of village Kakoria.
\nHe says\t that on  the day  of the polling at about 2.30\/3.00
\np.m. he\t had gone to the Village Burthal Jat where he saw an
\naltercation going on between Satbir Singh. Anil Kumar on the
\none hand  and Shamsher\tSingh on  the other. An ASI had also
\narrived there  followed by the D.C. and the S.D.O. He admits
\nthat he had never met Anil Kumar and Satbir Singh nor did he
\nknow them  before. Although  he was  an eye-witness  to\t the
\nincident of altercation yet he does not say that he had told
\nanything to  the various  officers who\twere present  at the
\nspot.  His   evidence,\ttherefore,  does  not  inspire\tmuch
\nconfidence.\n<\/p>\n
     The learned  Judge of  the High  Court  who  had  fully
\nconsidered the evidence of these witnesses observed thus:\n<\/p>\n
\t  “The time  of their  arrest as  noticed makes\t the
\n\t  evidence of  the petitioners’\t witnesses in regard
\n\t  to the  incident at Burthal Jat very doubtful. The
\n\t  analysis of  the evidence  led by  the petitioners
\n\t  reveals that\tthey have  failed to prove this part
\n\t  of the  charge of  corrupt  practice\tagainst\t the
\n\t  respondent.”<\/p><\/blockquote>\n
     A bare perusal of the evidence of the witnesses for the
\nappellant clearly  reveals that\t they are  not\ttelling\t the
\ntruth and  hence no  implicit faith  can be reposed on their
\ntestimony.\n<\/p>\n
437<\/span><\/p>\n
     This now brings us to the evidence led on behalf of the
\nrespondent. To\tbegin with, RW 11, Ravi Datt Sharma, who was
\nd Lecturer  in Govt.  Higher Secondary\tSchool Rewari, was a
\npolling Officer\t at Burthal  Booth. According  to  him,\t the
\npolling went on smoothly from 7.30 a.m. to 4.30 p.m. Without
\nany untoward  incident. He categorically states that he knew
\nCol. Ram Singh and he (respondent) did not visit the polling
\nbooth on  the polling  day. He further goes on to state that
\nat about  1.00 p.m., the D.C. and S.D.M. visited the polling
\nbooth.\tOn   their  enquiry,  the  witness  told  them\tthat
\neverything was going on smoothly. He clearly denies that the
\nD.C. had  recorded any conversation which he had with him in
\nthe taperecorder. His evidence, however, is confined only to
\nthe incident  that had\thappened inside\t the booth  and\t not
\noutside. We  do not see any infirmity in his statement as he
\nappears to be an independent and truthful witness.\n<\/p>\n
     RW 12,  Parbhati, was  a voter  of Burthal booth and he
\ntestifies to the fact that he had cast his vote at 8.00 a.m.
\nthough he  had reached\tthe booth at 7.30 a.m. After casting
\nhis vote  he came  out and  stayed with his co-villagers and
\nremained there will 1.30 or 2.00 p.m. He further states that
\nduring this  period Col.  Ram Singh or anybody on his behalf
\ndid not\t come to  the booth  nor did  any quarrel or dispute
\ntake place inside or nearabout the polling booth. He further
\nstates that  Shamsher Singh (PW 32), Sarpanch of the village
\nwas standing at a small distance with some people and he (PW\n<\/p>\n
12) heard  some altercation  between them. During the course
\nof the\tsaid altercation  the police arrived at the spot and
\nremoved two  persons (meaning  perhaps Anil Kumar and Satbir
\nSingh) whom  he did not know. Thereafter, Shamsher Singh and
\nother villagers\t returned to  the polling  booth.  In  cross
\nexamination the\t only fact  which he  admits is that Mahabir
\nand Udai  Bhan were the polling agents of Col. Ram Singh and
\nShamsher Singh\tand Thaver  Singh were the polling agents of
\nSmt. Sumitra  Bai. He  categorically states  that he did not
\nknow Satbir  Singh or Anil Kumar and therefore he was not in
\na position  to say  whether they  were there or not. He also
\nstates that at a distance of about 2 killas from the booth a
\njeep was  standing and\the did\tnot see\t any sticks  in that
\njeep, and  that villagers were saying that B.D.O. and S.D.O.
\nhave come  there. Since\t he did\t not know  the D.C. was also
\nthere. He  stoutly denied the allegation that Col. Ram Singh
\nhad come  to the polling booth in the morning soon after the
\nstart of the polling and that he (respondent) had left 15-20
\npersons who  had to  be removed\t by the\t police. It  may  be
\nnoticed\t at   this  stage  that\t the  suggestion  in  cross-
\nexamination itself presupposes
\n438<\/span>
\nand does  not dispute  the fact that Col. Ram Singh had come
\nto the\tbooth only  in the  morning, that  is to  say,\tlong
\nbefore the arrival of the deceased. This is an important and
\nintrinsic circumstance\tto show that so far as Burthal booth
\nis concerned, the statement recorded on the tape-recorder by
\nPW 7  could not\t have included\tthe respondent\tand that was
\nperhaps the initial case of the appellants themselves.\n<\/p>\n
     RW 13,  Ami Lal,  was also a voter of Burthal booth and
\nhe says that so long as he was there he did not see Col. Ram
\nSingh nor  did any  dispute take  place\t either\t within\t the
\npolling station\t or outside.  He admits that he saw Shamsher
\nSingh, who  as the  polling agent of Congress (I) candidate,
\naltercating with  two unknown persons at a distance of about
\n100-120 karms.\tHe categorically states in cross-examination
\nthat he\t did not see any candidate at the booth on that day.
\nHe also testifies that he knew Col. Ram Singh since the last
\nelection. He  further denies  the suggestion  that Anil\t and
\nSatbir were  threatening the  voters. Nothing further of any
\nimportance seems to have been elicited from this witness.\n<\/p>\n
     RW 14,  Sheo Chand, who as also a voter, fully supports
\nthe evidence  of RW  13 and says that he knew Col. Ram Singh
\nwhom he\t did not  see passing  through the  approach-road to
\nBurthal Jat.  A number of suggestions were made to him which
\nwere denied by him and which are hardly of any importance.\n<\/p>\n
     RW 20,  T.C. Singla,  is more  or less a formal witness
\nwho produced  certain letters  (dated 25.4.82  and  30.4.82)
\nwritten by Col. Ram Singh to the Chief Election Commissioner
\nof India  containing certain  complaints made  by  Col.\t Ram
\nSingh about the irregularities in the election which are not
\nrelevant for our purpose.\n<\/p>\n
     RW 22,  Col. Ram  Singh, is  the respondent himself. We
\nshall deal  with his  evidence relating\t to both  Kalaka and
\nBurthal booths.\t To begin  with, he  clearly states that the
\nD.C. (PW  7) was  not impartial\t and was working against his
\ninterests. Perhaps  we may not go to the extent of-accepting
\nthe apprehensions  of the  respondent but  there is no doubt
\nthat the  conduct of  the D.C.,\t as revealed  in this  case,
\nleaves much  to be  desired. According to the evidence of RW
\n22, at\tabout 8.45  or 9.00  A.M. two  of his  persons\tfrom
\nKalaka polling booth came to him in a dishevelled condition:
\nthere clothes were torn and they appeared to have been badly
\nbeaten up. They informed him (RW 22) that Ajit Singh S\/o
\n439<\/span>
\nRao Birender Singh, accompanied by 50-60 persons had entered
\nthe   polling booth  and beaten\t them up  and that they were
\nindulging in  forcible polling.\t The two persons who came to
\nhim in\tan injured  condition were  Ram Kishan\tand Tula Ram
\n(both brothers)\t and Tula  Ram was  his\t polling  agent.  On
\nreceiving this information, the witness rushed to Kalaka and
\nreached there  at about 9.15\/9.30 a.m. and after leaving his
\ncar at some distance from the polling booth he walked to the
\nbooth. He  went\t inside\t the  booth  and  protested  to\t the
\nPresiding Officer  (PW 8)  and drew  his  attention  to\t the
\ncomplaint which\t he had\t received  from\t Tula  Ram  and\t Ram
\nKishan. The  Presiding Officer\tverbally  assured  him\tthat
\nnothing untoward  would be  allowed to\thappen. The  witness
\nstayed there  only for 7-8 minutes and returned to his house
\nand telephoned\tthe police and also sent a written report to
\nthe police  about the  incident. He  received a message from
\nthe police  station at\tabout 10.30  a.m. that his complaint
\nhad been  flashed to  the D.C. to take appropriate action in
\nthe matter.  This important  part of  his evidence  is fully
\ncorroborated by\t the statement\tof DC  (PW 7)  that  he\t had
\nreceived a  wireless message  from the police authorities to
\nthe effect  that Ajit  Singh and  his  party  were  creating
\ntrouble at  Kalaka booth.  The witness\tcategorically states
\nthat he\t did not  go the village Burthal Jat \/ r did he send
\nany of his workers there. This fact is fully corroborated by
\nthe intrinsic  evidence of  the witness recorded by the D.C.
\nat Burthal  where the  respondent does\tnot appear to figure
\nor, at\tany rate,  his statement was not recorded at Burthal
\nwhich is clear from the tape-recorded statement.\n<\/p>\n
     The rest of his evidence is regarding a number of other
\nfactors which are not relevant for the purpose of this case.
\nReliance was,  however, placed by the appellants that Satbir
\nSingh, who  was a  leading figure at Burthal, was an adopted
\nson of\tJagmal Singh,  who was\tfather-in-law  of  Col.\t Ram
\nSingh. The  witness further  clarifies that  he had divorced
\nhis wife  as far  back as  1962. Thus, when the witness says
\nthat he\t had no\t relations with Satbir Singh, we dare say he
\nis right.  A number  of\t questions  regarding  his  domestic
\nmatters were  put in cross-examination but they are not very
\nrelevant.\n<\/p>\n
     As, however,  this witness, who appeared before us, was
\nexamined by  us at  our instance and was subjected to cross-
\nexamination by\tboth the parties, we shall discuss that part
\nof his evidence a little later when we come to the statement
\nof this\t witness recorded  by PW  7 in\this tape-recorder at
\nKalaka polling
\n440<\/span>
\n     Thus, leaving  the tape-recorded statement for the time
\nbeing, we  adhere to  our view expressed in the earlier part
\nof this judgment that the evidence adduced by the respondent
\nseems to  be much  superior in\tquality than that adduced by
\nthe appellants. The learned Judge of the High Court was also
\nof the\tsame view  and had rightly held that the allegations
\nof corrupt  practice or\t of capturing  of booth had not been
\nestablished by the appellants beyond reasonable doubt or, to
\nbe very\t accurate, by  the Standard of proof required to set
\naside the election of a successful candidate.\n<\/p>\n
     We might  now rush\t through  the  relevant\t documentary
\nevidence produced  in this  case which\thas been fully dealt
\nwith by\t the learned  Trial Judge  and\twe  agree  with\t his
\nconclusions. To\t begin with,  Ex. P-5  is the  diary of\t the
\nPresiding Officer  of the  Kalaka  booth.  We  have  already
\ndiscussed the  effect of  this document and found that while
\nin column  on No. 21 relating to interruption or obstruction
\nof poll, he (PW 8) mentioned Col. Ram Singh putting pressure
\non polling  party and  getting bogus  votes  polled  in\t his
\nfavour yet  in column.\tNo. 20(e), relating to intimidation,
\netc., he  made no  mention of  any such incident and crossed
\nthe same,  meaning thereby that there was no intimidation of
\nvoters.\t m   e\tdocument,   Ex.\t P-5,  is  therefore,  self-
\ncontradictory and  does\t not  inspire  any  confidence.\t The
\nexplanation given  by PW  8 in his evidence is that while he
\nwas filling  up column 20 (e) he did not mention anything as
\nhe was\tgreatly perturbed  at that  time.  This\t is  a\tmost
\nimplausible and fantastic explanation which apart from being
\ninherently improbable  appears to  be absolutely absurd. The
\nwitness wants  us to  believe that at the time of filling up
\ncolumn 20  (e) he  was perturbed but in a split second while
\nfilling up  the very  next column,  i.e.,  column  21(4)  he
\nsuddenly gathered  strength to\tcompose himself and made the
\nobservations contained\tin  the\t said  column.\tAs  the\t two
\nentries were  supposed to  be filled up simultaneously it is
\nimpossible to believe that while filling up one entry he was
\nperturbed and  while filling  up the  next entry he was in a
\ncomposed state\tof mind.  In other  words,  the\t explanation
\ncomes to  this: his  mental state  of mind  by a  miraculous
\nprocess cooled\tdown and  led him  to make  the observations
\nwhich he  did in  column No. 21(4). It seems to us that what
\nhad really  happened was  that the  plea of intimidation, as
\nalleged by the appellants, is a cock and bull story and when
\nthe witness  was confronted  with a  contradictory situation
\nand found  himself  in\ta  tight  corner  he  invented\tthis
\nridiculous explanation\twhich has  to be  stated only  to be
\nrejected. This\taffords an  intrinsic proof of the fact that
\nno threat or intimidation was given by the
\n441<\/span>
\nrespondent or  his men\tduring his  presence and in order to
\nsave his  skin the witness may have made the entry in column
\nNo. 21(4) subsequently as an afterthought. Thus, no reliance
\ncan be\tplaced on  a witness  like  PW\t8  for\tany  purpose
\nwhatsoever.\n<\/p>\n
     Ex.P-16 is\t a certified copy of the FIR (No.103) lodged
\nby the\tPresiding Officer  implicating Col.  Ram  Singh\t and
\nmaking some allegations. This document also appears to us to
\nbe a spurious one as discussed by the High Court.\n<\/p>\n
     So far  as the  documents produced\t on  behalf  of\t the
\nrespondent are\tconcerned, they are R-1 to R-9 consisting of
\nletters written\t by Col.  Ram Singh  to various\t authorities
\nincluding  the\t Chief\tElection   Commissioner\t  of   India
\ncomplaining about  the\tmisuse\tof  powers  by\tthe  polling
\nofficials in the conduct of election.\n<\/p>\n
     This is  all the documentary evidence that matter- and,
\nin our opinion, nothing turns upon these documents.\n<\/p>\n
     This now  brings us  to the last and inevitable step of
\nthe drama  starting with  P.W. 1  and ending with R.W.22. In
\norder to  understand the  admissibility, credibility and the
\ntruth of  the statements contained in the cassette, we might
\ngive a\tbrief summary  of the manifest defects and incurable
\ninfirmities from  which\t the  statements  recorded  on\ttape
\nrecorder suffer.  Our conclusion on this question is arrived
\nat not only after going through the tape recorded statements
\nbut also hearing the cassette ourselves in this Court on big
\namplified speakers.  The defects\/infirmities  may be pointed
\nout thus:\n<\/p>\n
1. The\tvoices recorded\t at number  of places  are not\tvery
\nclear ant  there is  tremendous noise  while the  statements
\nwere being recorded by the D.C. (P.W. 7)\n<\/p>\n
2. A  good part\t of the\t statements recorded on the cassette
\nhas been denied not only by the respondent but also by R.Ws.
\n1 and  3. No other witness has come forward to depose to the
\nidentification of  the voice  of the  respondent or those of
\nR.Ws. 1 and 3.\n<\/p>\n
3. There are erasures here and there in the tape and besides
\nthe voice  recorded being  \/ t\tvery clear,  it is extremely
\nhazardous to base our decision on such an evidence.\n<\/p>\n
4. One\tof the\timportant infirmities  from which  the\ttape
\nrecorded statements  suffer 18 the question of custody. P.W.
\n7,
\n442<\/span>
\nthe D.C. has clearly admitted in his evidence that though he
\nwas supplied  a tape recorder or a dictaphone but he was not
\nasked by  the Government  to record  the statements  on\t the
\ntape-recorder which  was really\t meant for recording his own
\nimpressions and\t not those  of the  witnesses. However, even
\nthough P.W. 7 violated the instructions of the Government he
\ngravely erred in not placing the recorded cassette in proper
\ncustody, that  is to  say, in the official record room after
\nduly sealing  the same,\t and instead  keeping the  same with
\nhimself without any authority.\n<\/p>\n
     Thus,  the\t possibility  of  tampering  with  the\ttape
\nrecorded statements cannot be ruled out and this is almost a
\nfatal defect  which renders  the  tape\trecorded  statements
\nwholly inadmissible.\n<\/p>\n
5. P.W.\t 7 himself  admits that\t the transcript\t of the tape
\nrecorded statements  was prepared  in his  office under\t his
\nsupervision by his stenographer. He further admits that when
\nthe transcript\twas being prepared he was temporarily absent
\nfrom his  office to  attend to\tcertain\t other\tworks.\tThis
\nappears to  us to be a very serious matter because he had no
\nlegal authority\t to leave  the recorded\t cassette  with\t his
\nstenographer, who  was transcribing  the same,\teven  for  a
\nsingle moment  as the possibility of its being tampered with
\nby his\tstenographer or\t by anybody  else cannot  be  safely
\nruled out.  He further admits that even a copy of the trans-
\ncript was not deposited in the official record room.\n<\/p>\n
6. One\timportant aspect as part of the manifest defects may
\nnow be\tmentioned. R.Ws. 1 and 3 have denied the identity of
\ntheir voice in the cassette and, therefore, that part of the
\nevidence becomes  clearly inadmissible. The respondent, Col.
\nRam Singh,  however, appears to us to be a truthful, upright
\nand straight  forward person because while he chose to admit
\nsome parts of the tape recorded statement to be in his voice
\nand as\tbeing correct but denied the rest: he could have, if
\nhe wanted,  denied the\twhole of  it. It seems to us that as
\nthe respondent was a trained and disciplined soldier he told
\nthe truth  as far  as appeared\tto him.\t In fact,  if he had
\nfailed to  identify his\t voice, then nothing could have been
\ndone and his statement would have been\tper se inadmissible.\n<\/p>\n
7. As  it is,  the statements  on the  tape recorder seem to
\nhave been  recorded in\ta most\thaphazard  and\tunsystematic
\nmanner without\tfollowing any  logical or scientific method.
\nThis will  be clear  from the  fact that  the tape  recorded
\nstatements do not indicate
\n443<\/span>
\nthe polling  booth where  it was  recorded, the\t name of the
\nperson\twhose statement was recorded, the time of recording,
\netc.\n<\/p>\n
     A\tproper\t methodology  which  the  D.C.\tshould\thave
\nfollowed was  to first\tindicate the place, time and name of
\nthe  person  by\t himself  speaking  and\t then  recorded\t the
\nstatement. No such scheme was followed and the court is left
\nto chance  and conjecture  to find  out as to when and where
\nand whose  statement was recorded. As it is, we can only say
\nthat the  statement of\tthe respondent\twas recorded only at
\nKalaka and  this fact seems to be admitted by the appellants
\nin their written submissions (Vol. III, p.59) thus :-\n<\/p>\n
\t  “It is  not the  petitioners’ case  that Col.\t Ram
\n\t  Singh came  to  the  polling\tstation\t or  polling
\n\t  booth. The  petitioners’ witnesses  (P.W. 27, P.W.
\n\t  28 and  P.W. 29)  have only  stated that  Col. Ram
\n\t  Singh came to Burthal Jat at 8.00 a.m., instructed
\n\t  his supporters not to allow any voters to vote for
\n\t  Congress (I)\tcandidate and  thereafter  left\t the
\n\t  place.<\/p><\/blockquote>\n
     ” It is, therefore, clear that if at all Col. Ram Singh
\nvisited Burthal\t booth, he did it only at 8.00 a.m. when the
\nD.C. had not even reached there and, therefore, the question
\nof recording his statement at Burthal Jat does not arise.\n<\/p>\n
     In our  opinion, the best course of action for the D.C.
\nshould have been to record ‘the statements of the respondent
\nand other  persons himself  in writing\tinstead of recording
\nthe same  on  a\t taperecorder  which  has  led\tto  80\tmany
\ncomplications. And,  if he  wanted to  use a taperecorder he
\nshould have  taken the necessary precautions to see that too
\nmany  voices,  interruptions,  disturbances  are  completely
\nexcluded. He  ought not\t to have allowed any person to speak
\nwhile he  was recording\t the statements. Unfortunately, this
\nconfusion has  resulted from  his conduct  in  flouting\t the
\ninstructions of\t the Government\t by not using the dictaphone
\nonly for recording his own impressions but instead recording
\nthe statements of the persons concerned.\n<\/p>\n
     Thus, in  short, the manner and method of recording the
\nstatements in the taperecorder by the D.C. has resulted in a
\ntotal mess making confusion worse confounded. P.W. 7 has not
\ngiven the  details to  complete the  picture as\t to what the
\nrespondent had done. Therefore, the evidence of D.C. On this
\n444<\/span>
\npoint is  conspicuous by the absence of any such description
\nor comments.  Indeed, the  D.C. has  just acted\t as a silent
\nmachine to  whatever was  recorded instead  of applying\t his
\nmind as to at what stage the respondent denied his voice and
\nwhere he admitted the same. We should have at least expected
\nthe D.C.  to give  better details in a case like the present
\none   which,   as   already   mentioned,   entails   serious
\nconsequences for  the respondent  if his election were to be
\nset aside.\n<\/p>\n
     Having regard  to the  reasons mentioned  above, we are
\nabsolutely satisfied  that the\ttape recorded  statements of
\nthe witnesses  are wholly  inadmissible in  evidence and, at
\nany rate,  they do  not have  any probative  value so  as to
\ninspire any  confidence. Hence,\t it is\textremely unsafe  to
\nrely on\t such tape  recorded statements apart from the legal
\ninfirmities pointed out above.\n<\/p>\n
     That should have closed the whole chapter as far as the
\ntape recorded  statement of  the respondent is concerned. We
\nshall,\thowever,   mention  below  a  few  glaring  defects,
\nomissions and imperfections:\n<\/p>\n
     1. some statements said to have been recorded by P.W. 7
\nhave been  flatly denied by R.Ws. 1 and 3, one of whom was a
\npolling officer and the other a constable.\n<\/p>\n
     2. A  good part of the tape recorded statement has been
\nvehemently  and\t persistently  denied  by  him\t(respondent)
\nrightly or wrongly.\n<\/p>\n
     3. It  is true  that the searching and gruelling cross-
\nexamination of\tthe respondent\tin this court by Mr. Sibbal,
\ncounsel\t for  the  appellants,\tseems  to  have\t forced\t the
\nrespondent to  admit certain innocuous facts though he might
\njust as\t well admitted\tthose facts  which caused no harm to
\nhim.\n<\/p>\n
     We might  mention here that our object in examining the
\nrespondent as  a court\twitness in this court and subjecting
\nhim to\t cross\texamination by\tboth the  parties was not to
\nfish out technicalities by putting all sorts of querries and
\nquestions, relevant  or irrelevant.  In such a complex state
\nof affairs,  the statement  of the respondent, torn from the
\ncontext, cannot\t form the basis of a judicial decision. Take
\nfor instance,  one statement  of the  respondent  which\t was
\nrepeated to him by Mr.
\n445<\/span>
\nSibbal several times in different forms. The occasion was if
\nthe respondent\thad sent  Ram Kishan  and Tula\tRam or other
\npersons to  the police\tstation or he himself had gone there
\nalong with  them. The respondent admitted that these persons
\nalongwith others  had come  to his house and complained that
\nthey had  been beaten  up and harassed by the members of the
\nCongress (I)  candidate and  also showed  in pries  on their
\npersons. He  repeatedly said  that he  himself did not go to
\nthe police  station but\t sent them there. Perhaps in view of
\nthe serious  situation arising\tfrom the  severe altercation
\nthat took place between the supporters of Col. Ram Singh and
\nthose of  the other  party, it\tis quite  possible  that  on
\nhumanitarian grounds  he may  have personally  gone  to\t the
\npolice station\twith the  injured persons but as at the time
\nof his\tdeposition he  happened to  be the  Speaker  of\t the
\nVidhan Sabha  he may  have felt\t that his  vanity  would  be
\ninjured if  he admitted\t that he  himself had  gone  to\t the
\npolice station.\t Even if  he had  given this reply, lt would
\nnot have improved the case of the appellants. This is just a
\nsample of the questions put by the counsel to him.\n<\/p>\n
     Another important\tfeature of  his evidence  is that he
\ntacitly admits\tat various  places that\t while his statement
\nwas being recorded, a number of gaps were there, a number of
\nother  people  were  speaking  together,  leading  to  great
\nconfusion which must have made him lose his wits. On hearing
\nthe entire  conversation ourselves,  we are  of the  opinion
\nthat  the  statement  of  the  respondent  is  not  coherent
\nparticularly because  of gaps,\tnoises, sounds, and that the
\nstatements was\trecorded in  an atmosphere  surcharged\twith
\nemotions.\n<\/p>\n
     In this  view of  the matter,  we do  not\tconsider  it
\nnecessary to  delve deeper  into the various statements made
\nby the\trespondent. It is sufficient to indicate that on the
\nappellants’ own\t case he had not gone to Burthal Booth after
\n8.00 a.m.  and, therefore,  the D.C. who reached there at 12
\nNoon  could   not  have\t recorded  his\tstatement.  We\tare,
\ntherefore, not\tin a position to hold that implicit reliance
\nshould be placed on the evidence led by the appellants. Even
\nif the\trespondent made\t some admissions  in  his  unguarded
\nmoments that would not strengthen the case of the appellants
\nin view\t of the\t standard of  proof required  in an election
\nmatter where  the allegations of corrupt practice have to be
\nproved beyond  reasonable doubt\t almost just like a criminal
\ncase.\n<\/p>\n
     It was s urged by Mr. Sibbal that in view of our recent
\ndecision in Ram Sharan Yadav’s (supra) the impact of the
\n446<\/span>
\nevidence on  the court\twould show  that the  respondent was
\nlying and that was sufficient to prove the appellants’ case.
\nWe are\tunable to agree with the broad interpretation put by
\nthe learned counsel on our decision.\n<\/p>\n
     In fact,  if we  apply the\t principles laid  Ram Sharan
\nYadav’\tcase,\tthe  appellants’   case\t must  fail  at\t the
\nthreshhold.\n<\/p>\n
     Lastly, we\t might consider the argument advanced before
\nus by  the learned  counsel for the respondent who submitted
\nthat even  if the  case of capturing of booths as alleged by
\nthe appellants against the respondent is made out that would
\nat best\t be an\telectoral offence and not a corrupt practice
\nwithin the  meaning of\tthe provisions of the Representation
\nof the People Act, 1951. We are, however, not called upon to
\ngo into\t this question\tas no  clear case  of  capturing  of
\nbooths has  been made  out. The\t learned Judge\tof the\tHigh
\nCourt has  dealt with  the case\t of capturing of booths very
\nextensively and\t has written  a very  well reasoned judgment
\nannotated with\tconvincing reasons and conclusions. It would
\nindeed be  extremely difficult\tto displace  the judgment of
\nthe High  Court on  the ground sought by the appellants. The
\nHigh Court  has considered  even the  minutest details so as
\nnot to invite any comment that the Judge has not applied his
\nmind. Even  as regards\tthe  tape  recorded  statements\t the
\nlearned\t Judge\thas  pointed  out  several  infirmities\t and
\ndefects which  despite the  ingenious and charming arguments
\nof Mr. Sibbal have not been rebutted.\n<\/p>\n
     On a careful consideration, therefore, of the evidence,
\ncircumstances, documents  and probabilities  of the case, we
\nare fully satisfied that the appellants have failed to prove
\ntheir case  that the  respondent was  guilty of indulging in
\ncorrupt practices. We, therefore, affirm the judgment of the
\nHigh Court  and dismiss\t the appeal but in the circumstances
\nwithout any order as to costs.\n<\/p>\n
     VARADARAJAN J. : This appeal under section 116A of the
\n Representation of People Act, 1951, hereinafter referred to
\nas ‘the\t Act’, is directed against the dismissal of Election
\nPetition No.  13 of 1982 on the file of the Punjab & Haryana
\nHigh Court.\n<\/p>\n
     The  appellants   are  registered\telectors  of  Rewari
\nConstituency No.  86 of the Haryana Legislative Assembly. In
\nthe election  held for that Constituency on 19.5.82 Col. Ram
\nSingh,
\n447<\/span>
\nhereinafter referred to as ‘the respondent’ who contested as
\nthe\tCongress  (J)  candidate  was  declared\t elected  on
\n21.5.1982 after the counting was, over on 20.5.82, defeating
\nhas nearest rival, Sumitra Devi who is said to be the sister
\nof  Rao\t  Birendra  Singh   and\t had   contested   in\tthat
\n‘Constituency as  the ‘Congress\t (I) candidate. Sumitra Devi
\nlost by\t a margin  of 8,760  votes. The appellants sought in
\nthe election  petition a  declaration that  the respondent’s
\nelection is  void under section 100 of the Act. They alleged
\nthat there  was direct and indirect interference and attempt
\nto interfere  on the  part of  the respondent and his agents
\nand other  persons with\t his consent with the free  exercise
\nof the\telectoral right\t of  the  electors.  The  respondent
\nstoutly opposed the election petition. Alter considering the
\nevidence and  hearing the  counsel of  both the\t parties the
\nlearned Judge who fried the election petition found that the
\nappellants tailed  to prove their case beyond all reasonable
\ndoubt and dismissed the petition with costs of Rs. 2,000.\n<\/p>\n
     Mr. Kapil\tSibal, learned counsel for the appellants 1)
\nconfined his  arguments in  this Court\tto the\tinstances of
\ncorrupt practice  alleged in  respect of  only\ttwo  polling
\nstations Kalaka and Burthal Jat. It is, therefore, necessary
\nto confine  our attention  to the  case of  the\t parties  in
\nregard to only those instances.\n<\/p>\n
     The appellants’  case in  regard to the Kalaka polling,
\nstation started\t and continued\tsmoothly until 10.30 a.m. on
\n19.5.1982. But at about 10.30 a.m. the respondent came there
\nalong With  60 or 70 persons including Desh Raj, Ram Krishan
\nand Krishan  Lal of  Kalaka and Sheo Lal Gujar, Rishi Dakot,
\nUmrao Singh, Raghubir Singh, Balbir Singh Gujar, Abhey Singh
\nGujar and  Suresh of  Rewari. The  respondent was carrying a
\ngun while some of those who accompanied him  were armed with
\nguns, lathis  and swords.  The respondent and his companions
\nthreatened With\t arms and  terrorised the  electors Who were
\nwaiting outside\t the polling station to exercise their right
\nto vote\t as a  result of  Which Sheo  Chand, Gurdial, Puran,
\nMangal, Basti  Ram, Ishwar  and Amar  Singh ran away without
\nexercising their  right to  vote. The  restpondent and\tsome
\nother armed  persons  amongst  his  companions\tentered\t the
\npolling\t station  and  brandished  their  guns\ttowards\t the
\nPresiding Officer  and other members of the polling staff as
\nwell as\t the polling  agents of\t the various  candidates and
\nordered everyone  to stand still. They threatened the voters
\nwho were  in the polling station when they raised objections
\nto their conduct and made them to quit as also.\n<\/p>\n
448<\/span><\/p>\n
the polling agents Amar Singh and Suraj Bhan. The respondent
\ndirected a  Sikh amongst  one of  his companions  carrying a
\nsword to  hit Mangal  Singh who\t strongly  objected  to\t the
\nrespondent’s behaviour\tand he was accordingly assaulted and
\ninjured. One  Basti Ram who too objected to the respondent’s
\nbehaviour was hit by one of the companions of the respondent
\nwith the  butt of  a rifle. Ishwar, a Lambardar was also hit
\nby the\tbarrel of  a gun.  The respondent and his companions
\nsnatched about\t50 ballot  papers from\tthe polling staff at
\ngun point  and they  were marked in favour of the respondent
\nand put\t into the ballot boxes after one of the respondent’s
\ncompanions thumb-marked\t the counter  foils  of\t the  ballot
\npapers as  directed by\tthe respondent.\t Tula Ram, Desh Raj,
\nRam Krishan and Krishan Lal and others helped the respondent
\n in  marking the  ballot papers.  The police  at the polling
\nstation was  out numbered and remained as silent spectators.
\nBut when  a  number  of\t people\t of  the  village  came\t and
\nadditional police  arrived the respondent and his companions
\nmade good  their escape\t leaving  behind  two  motor  cycles
\nbearing registration Nos. A.S.W. 5785 and H.R.P. 534. Two of
\nthe respondent’s  companions were  caught by  the public and
\nhanded over  to the  police. Suraj  Bhan, Amar Singh, Ishwar
\nSingh and  Basti Ram made a report about the incident to the
\nReturning Officer,  Rewari Constituency\t at about 12 noon on
\nthe same  day. On  the arrival\tof the\tpolice the Presiding
\nOfficer of  the polling\t station lodged\t a detailed  report,
\ngiving his  version of the incident and thereupon F.I.R. No.
\n103 of\t1982  was  registered  by  the\tpolice.\t The  Deputy
\nCommissioner of\t the District  and the\tReturning Officer of
\nthe Constituency  also came  to the polling station and made
\nenquiries and  tape recorded  the statements  of some of the
\nconcerned persons.  The process of polling got disrupted for
\nover one  hour and  a number  of voters\t had to refrain from
\nvoting. It is clear from these facts that the respondent and
\nhis companions\twith his consent attempted to interfere with
\nthe free  exercise of  the electoral right of a large number
\nof electors  and the  respondent succeeded  in his  plan  to
\nscare away  and compel\tsome of the electors to refrain from
\nvoting at the election.\n<\/p>\n
     As regards\t the incident at Burthal Jat polling station
\nthe appellants’\t case is  this :-  As  per  his\t pre-planned
\nstrategy the respondent visited Burthal Jat village at about
\n8 a.m.\ton  19.5.1982,\taccompanied  by\t 50  or\t 60  persons
\nincluding Anil\tKumar,\tSatbir\tSingh,\tRaghubir,  Sheo\t Lal
\nGujar, Rishi  Dakot, Umrao  Singh, and\tBalbir Singh  Gujar.
\nMany persons including Mahabir Singh, Hira Singh, Mam Chand,
\nDharam Vir,  Thavar Singh and Amar Chand gathered there. The
\nrespondent told his suporters to ensure that
\n449<\/span>
\nelectors who  were likely  to  vote  for  the  Congress\t (I)
\ncandidate A  are not  allowed to go into the polling station
\nand that  he was  leaving behind Anil Kumar and Satbir Singh
\nwith 10\t or 15 musclemen to help them in preventing electors
\nof the\tCongress (I) candidate. A jeep containing lathis and
\nother weapons  was left\t at the\t disposal of  those persons.
\nWhile leaving  the place  the respondent told Anil Kumar and
\nSatbir Singh  who were\ton their  motor cycle  that  he\t was
\ndepending upon them and they should ensure that no votes are
\ncast in\t favour of  the Congress  (I) candidate\t and maximum
\nvotes are  polled in  his  favour.  Those  persons  kept  on
\nobstructing and\t threatening the  voters who  were coming to
\nthe polling  station to exercise their electoral right. Some
\nof  the\t persons  who  were  thus  terrorised  were  Surjit,
\nRaghubir Singh\tand Lal\t Singh. When  the Sarpanch Shamsheer
\nSingh who  came to  vote was  about  to\t reach\tthe  polling
\nstation, Anil Kumar and Satbir Singh came by the motor cycle
\nand told  him that  he must  vote  for\tthe  respondent\t and
\notherwise he  will not\tbe allowed  to proceed further. When
\nShamsheer Singh\t said that he would vote freely according to
\nhis choice  Anil Kumar\tand Satbir  Singh assaulted him with
\nsticks and  gave him  slaps and fish blows. Some respectable
\npersons of  the village\t including Kishori,  Ram Narian\t and
\nLambardar  Mam\t Chand\twho   were  present  nearby  rescued
\nShamsheer Singh.  The Assistant\t Sub Inspector Kalayan Singh
\nwho was\t on election  duty came there by a jeep and seen the
\nfight arrested\tAnil Kumar  and\t Satbir\t Singh.\t The  Deputy
\nCommissioner of\t the District and the Returning Officer [Sub
\nDivisional Magistrate]\talso came  there and  took the\tjeep
\nalong with lathis and other weapons into their custody. Thus
\nit is clear that Anil Kumar and Satbir Singh who are related
\nto the\trespondent committed  the aforesaid corrupt practice
\nat the instance of and with the consent of the respondent.\n<\/p>\n
     The defence  of the  respondent as regards the incident
\nin and\tat the\tKalaka polling\tstation is  one of  complete
\ndenial and  he contended  that if there is any report lodged
\nby Suraj  Bhan, Amar  Singh, Ishwar  Singh and\tBasti Ram it
\nmust be\t a manoeuvered\taffair to  create  evidence  in\t the
\nelection petition  and that  the  report  of  the  Presiding
\nOfficer is not his own version but a false document prepared
\nat the\tinstance of  the respondent’s political opponent Rao
\nBirendra Singh and other state agencies on whom he exercised
\npowerful influence.  The FIR No. 103 of 1982 dated 19.5.1982
\ndoes not support the appellant’s case of any interference or
\nattempt to interfere with the free exercise of the electoral
\nright of  any elector  on the  part of the respondent or any
\none else with his consent and does not directly disclose
\n450<\/span>
\nthe commission\tof any\tcorrupt practice of undue influence.
\nOn the other hand, the truth is that the men of Rao Birendra
\nSingh captured\tthe booth  at Kalaka  and the supporters and
\nvoters of  the respondent  were badly  out-manoeuvered which
\ncould be  gathered from\t the fact  that whereas Sumitra Devi
\nobtained 484  votes the respondent obtained only 53 votes in
\nthat polling station.\n<\/p>\n
     The allegation  that the  respondent and  some  of\t his
\ncompanions entered  the polling station and brandished their
\nguns at\t the Presiding Officer and ordered the other polling
\nstaff and  polling agents of the various candidates to stand
\nstill does  not attract\t any provision\tof the Act regarding
\nthe commission\tof corrupt practice. The allegation that the
\npolling agents Suraj Bhan and Amar Singh were threatened and
\nturned out  of\tthe  polling  station  does  not  constitute
\ncorrupt practice  as they  are not  alleged in\tthe election
\npetition to  be electors.  Mangal Singh,  Balbir  Singh\t and
\nIshwar who  are alleged\t to have  been assaulted and injured
\nare not\t alleged in  the election petition to be electors of
\nthe Constituency  and therefore\t that  allegation  does\t not
\nconstitute corrupt  practice. The  allegation that 50 ballot
\npapers were  snatched from  the polling\t staff and polled in
\nfavour\tof   the  respondent  does  not\t constitute  corrupt
\npractice.\n<\/p>\n
     The respondent’s  defence\tregarding  the\tincident  at
\nBurthal Jat  is one of complete denial of the allegations in
\nthe election  petition in  regard to that incident but there
\nis no  denial of  the allegation  that Anil Kumar and Satbir
\nSingh are related to him. He has contended that it is wholly
\nincorrect to  allege that  any jeep  with which\t he had\t any
\nconnection was carrying lathis and other weapons and that it
\nwas taken into custody by the officials. The allegation that
\nAnil Kumar  and Satbir\tSingh committed any corrupt practice
\nwith or\t without the  consent of  the respondent  is  False,
\nmalicious and  mischivious. Those  two persons\twere falsely
\nimplicated in  the case\t under sections\t 107 and  151 of the
\nCode of\t Criminal Procedure and a clumsy attempt was made to
\nimplicated them\t By tile  subordinate police  officials\t who
\nwere under  the powerful  influence of\tRao  Birendra  Singh
\nwhose sister  Sumitra Devi  was losing\tand ultimately\tbeen
\ndefeated by the respondent u Two independent alleged corrupt
\npractices, one\tby the\trespondent  and\t the  other  by\t the
\nothers, have been clubbed together in the election petition.\n<\/p>\n
     It is  necessary to  note all  the issues framed by the
\nTribunal. They are:\n<\/p>\n
451<\/span><\/p>\n
(1)  Whether the  allegations of corrupt practice alleged in
\n     the election  petition have  not been  supported by  an
\n     affidavit? If so, what is its effect?\n<\/p>\n
(2)  Whether petitioners  Nos. 2 to 5 have not deposited the
\n     security under  section 117  of the  Representation  of
\n     People Act, 1951? If so, what is its effect?
\n(3)  Whether petitioners  Nos. 2 to 5 have not complied with
\n     section 81\t (3) of\t the Representation of People Act by
\n     not attesting  the copy  of the election petition to be
\n     true copy\tunder their  own signatures?  If so, what is
\n     its effect?\n<\/p>\n
(4)  Whether petitioners  Nos. 2  to 5 have not verified the
\n     election petition? If so, what is its effect?
\n(5)  Whether allegations  of corrupt practice alleged in the
\n     petition lack  material facts\/legal  ingredients and do
\n     not disclose  complete cause  of action? If so, what is
\n     its effect?\n<\/p>\n
(6)  Whether the  allegations of corrupt practice alleged in
\n     the  election   petition  are   vague  and\t  lack\tfull
\n     particulars? If so, what is its effect?\n<\/p>\n
(7)  Whether the  averments in\tparagraph 7  of the petition
\n     are unnecessary, scandalous, frivolous or vexatious and
\n     calculated to  prejudice a\t fair trial?  If so, whether
\n     the same  are liable  to be  struck out  under rule  6,
\n     order 16 Civil Procedure Code?\n<\/p>\n
(8)  Whether  the  respondent  himself\tand\/or\tthrough\t his
\n     agents and\t other persons\twith his  consent, committed
\n     corrupt practice  of undue\t influence,  as\t alleged  in
\n     paras 9  to 13  of the  election petition or not? II so
\n     what is its effect?\n<\/p>\n
     The learned  Judge of  the High Court took up for trial
\nissues\t1  to  7  as  preliminary  issues.  By\torder  dated
\n10.12.1982  he\tfound  issues  2  to  6\t in  favour  of\t the
\nappellants and\tissue 1\t against them  but permitted them to
\ncarry out  certain amendment  and remove the defects pointed
\nin  his\t order.\t He  declined  to  consider  issue  7  as  a
\npreliminary issue  on the  ground that evidence is necessary
\nto record any finding on that issue. On the question
\n452<\/span>
\nwhether the  allegations in  paras 9  to 12  of the election
\npetition constitute  corrupt practice  he  held\t that  prima
\nfacie they  do not  disclose any defect in form or substance
\nbut they  contain material  facts and allegations of corrupt
\npractice. It may be noticed that the allegations relating to
\nthe incidents at Kalaka and Burthal Jat polling stations are
\ncontained in paragraphs 9 to 11 of the election petition.\n<\/p>\n
     On the  issue regarding the corrupt practice alleged in
\nrelation to  Kalaka polling  station the  learned Judge held
\nthat the  Presiding Officer’s  diary Ex.P-5  appears to have
\nbeen prepared  by the  Presiding Officer,  Hari Singh (PW 8)
\nlater under  the pressure  and\tinfluence  of  the  defeated
\ncandidate, Sumitra  Devi through  her brother  Rao  Birendra
\nSingh and that FIR No. 103 of 1982 dated 19.5.1982 contained
\nin Ex.P-6  is inadmissible  in evidence\t to corroborate\t the
\nevidence of PW 8 about the incident of Kalka polling station
\non the ground that the original report of PW 8 to the police
\nhad not\t been summoned\tby the appellants. He found that the
\ntape-record Ex.P.W  7\/1 prepared  by the Deputy Commissioner
\nof Mohindergarh\t District, (PW\t7) has\tbeen  tempered\twith
\nlater, disbelieving  the evidence  of PW 7 that a portion of
\nwhat he\t had recorded at the Burthal Jat polling station was
\nerased by  his own  voice inadvertently\t on the same day. He
\nalso found that the authenticity of the transcription of the
\ntape record  in Ex.P-1\tis not\tproved with definiteness. He
\nrelied\tupon   the  evidence  addued  on  the  side  of\t the
\nrespondent in  preference to that of the other side and held
\nthat the  appellants have  failed  to  prove  this  item  of
\ncorrupt practice beyond reasonable doubt.\n<\/p>\n
     Regarding the  incident  at  the  Burthal\tJat  polling
\nstation the  learned Judge  found that\tthe appellants\thave
\nfailed to prove that Anil Kumar and Satbir Singh are related
\nto the\trespondent. For\t coming to this conclusion he relied
\nupon Ex.P-9  which purports  to be a report of Man Chand (PW\n<\/p>\n
35) who\t has, however,\tdisowned it  while holding  the Anil
\nKumar and  Satbir Singh\t were canvassing for their candidate
\nat Burthal  Jat as stated by Mahabir Singh (PW 26) but it is
\nnot made  out who  their candidate  was. He  found that\t the
\nappellants  have  failed  to  prove  this  item\t of  corrupt
\npractice. On the findings recorded by him in regard to these
\nand the\t other items  of corrupt  practice  alleged  by\t the
\nappellants he  dismissed the election petition with costs as
\nstated above.\n<\/p>\n
     The points\t arising for  consideration in\tthis  appeal
\nare:\n<\/p>\n
453<\/span><\/p>\n
(1)  Whether the  incident in  and  at\tthe  Kalaka  polling
\n     station alleged  by the appellants is true and has been
\n     proved beyond reasonable doubt?\n<\/p>\n
(2)  Whether the  incident alleged  in\tand  at\t the  KaLaka
\n     polling station  does not\tconstitute corrupt  practice
\n     within the meaning of the Act? and
\n(3)  Whether the  incident at  Burthal Jat  polling  station
\n     alleged by\t the appellant\tis true\t and had been proved
\n     beyond reasonable doubt?\n<\/p>\n
     Before considering\t the evidence on record in regard to
\nthe incidents  at Kalaka and Burthal Jat polling stations it
\nis desirable  to note  certain provisions  in  the  Act\t and
\ncertain decisions  to which  the Court’s attention was drawn
\nby Mr.\tKapil  Sibal,  learned\tcounsel\t appearing  for\t the
\nappellants and\tMr. P.P.Rao,  learned counsel  appearing for
\nthe respondent.\n<\/p>\n
     Section 87\t of the\t Act relates to the procedure before
\nthe High Court and clause (1) thereof reads thus:\n<\/p>\n
\t  “Subject to  the provisions of this Act and of any
\n\t  rules made  thereunder,  every  election  petition
\n\t  shall be ruled by the High Court, as nearly as may
\n\t  be in\t accordance with  the  procedure  applicable
\n\t  under the  Code of  Civil Procedure,\t1908  (5  of
\n\t  1908) to the trial of suits.\n<\/p><\/blockquote>\n
Order 8\t rule 1\t to 3  and 5  of the Code of civil Procedure
\nrelating to written statement read thus:\n<\/p>\n
\t  “1.(1) The defendant shall, at or before the first
\n\t  hearing or  within such  time\t as  the  Court\t may
\n\t  permit,  present   a\twritten\t  statement  of\t his
\n\t  defence.\n<\/p><\/blockquote>\n
\t  2. The  defendant must  raise by  his pleading all
\n\t  matters  which   show\t  the\tsuit   not   to\t  be
\n\t  maintainable, or  that the  transaction is  either
\n\t  void or  voidable in\tpoint of  law, and  all such
\n\t  grounds of  defence as,  if not  opposite party by
\n\t  surprise,  or\t would\traise  issues  of  fact\t not
\n\t  arising out  of  the\tplaint,\t as,  for  instance,
\n\t  fraud, limitation,  release, payment, performance,
\n\t  or facts showing illegality-\n<\/p><\/blockquote>\n
454<\/span><\/p>\n
\t  3. It\t shall not  be sufficient for a defendant in
\n\t  his  written\t statement  to\tdeny  generally\t the
\n\t  grounds  alleged   by\t the   plaintiff,  but\t the
\n\t  defendant  must   deal  specifically\t with\teach
\n\t  allegation of\t fact of which he does not admit the
\n\t  truth, except damages.\n<\/p><\/blockquote>\n
\t  5. (1)  Every allegation of fact in the plaint, if
\n\t  not\tdenied\t  specifically\t or   by   necessary
\n\t  implication, or  stated to  be not admitted in the
\n\t  pleading of  the defendant,  shall be\t taken to be
\n\t  admitted  except  as\tagainst\t a  person  under  a
\n\t  disability, but the Court, may, in its discretion,
\n\t  require any such fact to be proved.”<\/p><\/blockquote>\n
     Section 116  A of\tthe Act\t relating to  appeal against
\ncertain orders\tof the\tHigh Court lays down inter alia that
\nan appeal  shall  lie  to  the\tSupreme\t Court\tagainst\t the
\ndismissal of  an election  petition under  section 98 of the
\nAct. In\t the present  case the\telection petition  has\tbeen
\ndismissed by the High Court under that section.\n<\/p>\n
     Section 116  of the  Act relates  to procedure  in\t the
\nappeal. Sub-section (1) of that section reads thus:-\n<\/p>\n
\t  “116C. (1)  Subject to  the provisions of this Act
\n\t  and of  the rules,  if any, made thereunder, every
\n\t  appeal  shall\t be  heard  and\t determined  by\t the
\n\t  Supreme Court\t as nearly  as may  be in accordance
\n\t  with the  procedure applicable  to the hearing and
\n\t  determination of  an appeal  from any\t final order
\n\t  passed by  a High  Court in  the exercise  of\t its
\n\t  original   civil   jurisdiction;   and   all\t the
\n\t  provisions of\t the Code  of Civil  procedure, 1908
\n\t  (5 of\t 1908) and the Rules of the Court (including
\n\t  provisions at\t to the\t furnishing of\tsecurity and
\n\t  the execution of any order of the Court) shall, so
\n\t  tar db may be, apply in relation to such appeal.\n<\/p><\/blockquote>\n
Section 100  of the Act mention the grounds for declaring an
\nrelation to be void- Section 100(1) (b) reads thus:\n<\/p>\n
\t  “Subject to  the provisions  of sub-section (2) if
\n\t  the High  Court 18  of opinion  – that any corrupt
\n\t  practice  has\t  been\tcommitted   by\ta   returned
\n\t  candidate or\this election  agent or\tby any other
\n\t  person with the consent of a returned candidate or
\n\t  his election\tagent the  High Court  shall declare
\n\t  the election\tof  the\t returned  candidate  to  be
\n\t  void.”<\/p><\/blockquote>\n
455<\/span><\/p>\n
     Section 123  of the  Act lays  down  what\tare  corrupt
\npractices A and sub-section 2 thereof reads thus:-\n<\/p>\n
\t  “123(2) Undue\t influence,  that  is  to  say,\t any
\n\t  direct  indirect   interference  or\tattempt\t  to
\n\t  interfere on\tthe part  of the  candidate  or\t his
\n\t  agent, or  of any other person with the consent of
\n\t  the candidate or his election agent, with the free
\n\t  exercise of any electoral right. Instruction 74 of
\n\t  the Instructions  to Presiding  Officers issued by
\n\t  the Election Commission of India reads thus:
\n\t  “74. Preparation of the diary – You should draw up
\n\t  the proceedings  connected with  the taking of the
\n\t  poll in  the polling\tstation in  the diary  to be
\n\t  maintained for  the  purpose.\t You  should  go  on
\n\t  recording the\t relevant events  as and  when\tthey
\n\t  occur and  should not\t postpone the completion and
\n\t  filing of  all  entries  in  the  diary  till\t the
\n\t  completion of the poll. You should mention therein
\n\t  all important events particularly………” in the
\n\t  form given  which is\tthe same as the one in which
\n\t  Ex.P-5 in this case has been recorded.<\/p><\/blockquote>\n
     Mr. Kapil\tSibal learned  counsel\tfor  the  appellants
\nrelied upon  certain decisions\tof the English Courts and of
\nthis Court  in regard  to the admissibility of tape-recorded
\nevidence. I shall refer to them.\n<\/p>\n
     In R.  v. Maqsud  Ali [1965]  (2)\tAll  E.R.  464,\t the
\nfollowing observation has been made:\n<\/p>\n
\t  “The position\t on the\t evidence was  that  a\tvery
\n\t  important part  of that  evidence was made up by a
\n\t  tape recording  taken in circumstances that I must
\n\t  now indicate………..  On April 29, 1964 the two
\n\t  appellants were  at the  Town Hall at Bradford and
\n\t  they\t   were\t     taken     there\t  into\t   a
\n\t  room……………….  There   is  a  reason  to
\n\t  suppose that both of the appellants were not there
\n\t  on this occasion voluntarily………………. In
\n\t  that room  there had\tbeen  set  up  a  microphone
\n\t  behind a waste paper basket which was connected to
\n\t  a recorder  in another  room……… it is almost
\n\t  unnecessary to  say that  none but the police knew
\n\t  of   the    presence\t of    the   microphone\t  in
\n\t  position……………. so it ran for just
\n456<\/span>
\n\t  one minute over the hour……. The tape, after it
\n\t  had been  recorded, remained in the custody of the
\n\t  police and  there is\ta suggestion  that it was in
\n\t  any way  interfered with.  The  conversation\tthat
\n\t  took place  between  the  two\t appellants  was  of
\n\t  course    in\t   their    native    tongue……..
\n\t  and…………….. the  tape, it  should now  be
\n\t  stated, had  a number of imperfections…………
\n\t  If the jury could come to the conclusion that here
\n\t  was something\t which amounted to a confession that
\n\t  they were  both involved in the  murder, it can be
\n\t  seen that  this tape recording was a matter of the
\n\t  utmost  importance.\tIt   was,   indeed,   highly
\n\t  important  evidence\tand   the   defence   sought
\n\t  strenuously to keep it out
\n\t  This is  not the  first time\tthat the question of
\n\t  admissibility of  tape recordings  as evidence has
\n\t  come before  the courts  of this country. In 1956,
\n\t  in a\ttrial  at  Wiltshire  Assizes  Hilbery,\t J.,
\n\t  admitted  as\t evidence  a   tape-recording  of  a
\n\t  conversation\tin   Salisbury\tPolice\tStation\t and
\n\t  further admitted  a transcript of the recording to
\n\t  assist the jury.\n<\/p><\/blockquote>\n
\t  We can  see no  difference in\t principle between a
\n\t  tape recording and a photograph. In saying that we
\n\t  must not  be taken  as saying that such recordings
\n\t  are admissible  whatever the circumstances, but it
\n\t  does appear to this court wrong to deny to the law
\n\t  of  evidence\t advantages  to\t be  gained  by\t new
\n\t  techniques and  new devices, provided the accuracy
\n\t  of recording can be proved and the voices recorded
\n\t  properly  indentified;   provided  also  that\t the
\n\t  evidence is  relevant and otherwise admissible, we
\n\t  are satisfied\t that a tape recording is admissible
\n\t  in  evidence.\t  Such\tevidence  should  always  be
\n\t  regarded with\t some caution  and assessed  in\t the
\n\t  light of all the circumstances of each case.<\/p><\/blockquote>\n
     In R.  v. Robson  [1972] (2)  All E.R. 699, which arose
\nout of\ta case where the accused was charged with corruption
\nthe prosecution\t sought to  put in  evidence  certain  tape-
\nrecordings.   The   defence   contended\t  that\t they\twere
\ninadmissible in\t evidence as  inter alia  they were  in many
\nplaces unintelligible. It was however not contended that the
\ntape  recordings  was  inadmissible  evidence  of  what\t are
\nrecorded in  them. The\toriginality and\t authenticity of the
\ntape were left to the jury in that case.\n<\/p>\n
     In Yusufalli  Esmail Nagree  v.  State  of\t Maharashtra<\/a>
\n[1961] (3) S.C.R. 720 this Court has observed:\n<\/p>\n
457<\/span><\/p>\n
\t  “Like\t a  photograph\tof  a  relevant\t incident  a
\n\t  contemporaneous    dialogue\t of    a    relevant
\n\t  conversation is  a relevant fact and is admissible
\n\t  under section 7 of the Indian Evidence Act.\n<\/p><\/blockquote>\n
Reference has  been made  in that  case\t to  Roop  Chand  v.
\nMahabir Parshad\t and Anr.  A.I.R. 1956\tPunj. 173;  Mahindra
\nNath v.\t Biswanath Kundu  67 C.W.N. 191; Pratap Singh v. The
\nState of  Punjab [1964]\t 4 S.C.R.  733 and  B. v. Maqsud Ali
\n[1965] 2 All E.R. 464.\n<\/p>\n
     In Shri U. Sri Rama Reddy Etc. v. Shri V.V. Giri<\/a> [1971]
\n1 S.C.R.  399, a  decision of  five learned  Judges of\tthis
\nCourt the  following observation  made in  Yusufalli’s\tcase
\n(supra) has been quoted with approval:\n<\/p>\n
\t  “The contemporaneous\tdialogue between them formed
\n\t  part\tof  the\t res  gestae  and  is  relevant\t and
\n\t  admissible under  s.8 of  the Indian Evidence Act.
\n\t  The dialogue\tis proved by Shaikh. The tape record
\n\t  of the  dialogue corroborates\t his testimony.\t The
\n\t  process  of\ttape-recording\toffers\tan  accurate
\n\t  method of  storing and  later reproducing  sounds.
\n\t  The imprint  on the  magnetic tape  is the  direct
\n\t  effect of  the relevant  sounds. Like a photograph
\n\t  of a\trelevant incident,  a contemporaneous  tape-
\n\t  record of  a relevant\t conversation is  a relevant
\n\t  fact and  is admissible  under s.7  of the  Indian
\n\t  Evidence Act. ”\n<\/p><\/blockquote>\n
In R.M. Malkani V. State of Maharashtra<\/a> [1973] 3 S.C.R. 417,
\nthis Court observed:\n<\/p>\n
\t  “Tape\t  recorded   conversation   is\t admissible,
\n\t  provided first  that the  conversation is relevant
\n\t  to  the  matters  in\tissue;\tsecondly,  there  is
\n\t  identification of  the  voice,  and  thirdly,\t the
\n\t  accuracy  of\tthe  tape-recorded  conversation  is
\n\t  proved by  eliminating the  possibility of erasing
\n\t  the tape-record.  A contemporaneous tape record of
\n\t  a relevant  conversation is a relevant fact and is
\n\t  admissible under section 8 of the Evidence Act. It
\n\t  is res  gestae. It  is also  comparable to a photo
\n\t  graph of  a relevant\tincident. The  tape recorded
\n\t  conversation is  therefore a\trelevant fact and is
\n\t  admissible under section 7 of the Evidence Act.<\/p><\/blockquote>\n
458<\/span><\/p>\n
     In Ziyauddin  Burhanduuain Bukhari\t v. Brijmohan Ramdas
\nMehra Ors.<\/a>  [197] Suppl. S.C.R. 281, this Court approved the
\nHigh Court  relying upon  the tape  recorded reproduction of
\nthe successful\tcandidates’ speeches  to voters\t for holding
\nthat he had appealed to them in the name of religion.\n<\/p>\n
     Mr. Rao  learned counsel for the respondent relied upon
\nthe following four decisions in regard to the proof required
\nin cases where election or returned Candidates is alleged to
\nbe void on the ground of corrupt practice.\n<\/p>\n
     In Chenna\tReddy v.  R.C.Rao E.L.R.<\/a>  1972 Vol.  40 396,
\nthis Court observed:\n<\/p>\n
\t  This Court  has held in a number of cases that the
\n\t  trial of an election petition on the charge of the
\n\t  commission of\t a corrupt  practice partakes of the
\n\t  nature of  a criminal\t trial in  that the  finding
\n\t  must be  based not on the balance of probabilities
\n\t  but on  direct and  cogent evidence to support it.
\n\t  In  this   connection,  the\tinherent  difference
\n\t  between the  trial of\t an election  petition and a
\n\t  criminal trial  may also  be noted.  At a criminal
\n\t  trial the  accused need  not lead any evidence and
\n\t  ordinarily he does not do 80 unless his case is to
\n\t  be established  by positive  evidence on his side,
\n\t  namely, his insanity or his acting in half-defence
\n\t  to protect himself or a plea of alibi to show that
\n\t  he could  not have  committed the crime with which
\n\t  he was  charged. The trial of an election petition
\n\t  on the charge of commission of corrupt practice is
\n\t  somewhat    different…………………\t the
\n\t  procedure before  the\t High  Court  is  to  be  in
\n\t  accordance with  that applicable under the Code of
\n\t  Civil Procedure to the trial of suits with the aid
\n\t  of the  provisions of\t the  Indian  Evidence\tAct.
\n\t  Inferences can  therefore be drawn against a party
\n\t  who  does   not  call\t evidence  which  should  be
\n\t  available in support of his version.”<\/p><\/blockquote>\n
     In Balakrishna  v. Fernandez  [1969] 3 S.C.R. 603, this
\nCourt observed:\n<\/p>\n
\t  “Although the\t trial of  an election\tpetition  is
\n\t  made\tin   accordance\t with\tthe  Code  of  Civil
\n\t  Procedure, it\t has been  laid down  that a corrupt
\n\t  practice must be proved
\n459<\/span>
\n\t  in the same way as a criminal charge is proved. In
\n\t  other words,\tthe election petitioner must exclude
\n\t  every hypothesis  except that of guilt on the part
\n\t  of the returned candidate or his election agent.<\/p><\/blockquote>\n
     In Sultan\tSalhuddin Owasi\t v. Mohd.  Osman Shaheed and
\nOthers.<\/a> [1980] 3) S.C.C. 281, this Court observed:\n<\/p>\n
\t  It is\t now well  settled by  a large catena of the
\n\t  authorities of this Court that a charge of corrupt
\n\t  practice must\t be proved to the hilt, the standard
\n\t  of proof  of such  allegation is  the\t same  as  a
\n\t  charge of fraud in a criminal case. C
\n     In Ram  Sharan Yadav v. Thakur Muneshwar Nath Singh and
\nOthers.,<\/a> [1984] (4) S.C.C. 649, this Court observed:\n<\/p><\/blockquote>\n
\t  “As the  charge of  a corrupt\t practice is  in the
\n\t  nature of  a criminal\t charge, it is for the party
\n\t  who sets up the plea of ‘undue influence’ to prove
\n\t  it to\t the hilt  beyond reasonable  doubt and\t the
\n\t  manner of  proof should  be the  same\t as  for  an
\n\t  offence in  a\t criminal  case.  This\tis  more  so
\n\t  because once it is proved to the satisfaction of a
\n\t  court that  a candidate  has been guilty of ‘undue
\n\t  influence’ then  he is  likely to  be disqualified
\n\t  for a\t period of six years or such other period as
\n\t  the authority\t concerned under  Section 8-A of the
\n\t  Act may  think fit………..\t while insisting  on
\n\t  standard of  strict proof,  the Court\t should\t not
\n\t  extend or stretch this doctrine to such an extreme
\n\t  extent as to make it well-nigh impossible to prove
\n\t  an  allegation   of  corrupt\t practice.  Such  an
\n\t  approach  would  defeat  and\tfrustrate  the\tvery
\n\t  laudable and\tsacrosanct  object  of\tthe  Act  in
\n\t  maintaining purity of the electoral process.”<\/p><\/blockquote>\n<\/blockquote>\n
     In regard\tto what constitute election offences Mr. Rao
\ninvited attention  to  the  decision  of  Ramaswami,  J.  in
\nNagendra Mahto\tv. The State A.I.R. 1954 Patna, where it was
\nstated\tin   the  complaint   that  the\t  criminal  revision
\npetitioner before  the High  Court insisted  upon going into
\nthe room  where the  ballot  papers  were  kept\t though\t the
\nPresiding Officer  had warned  him to go out of the room and
\nalso the  petitioner himself  attempted to  put\t the  ballot
\npapers to  the box of one Nitai Singh Sardar and it has been
\nheld that  there was  proper evidence to record a finding of
\nguilt and sufficient to sustain the conviction under section
\n131 (1) (b) and section 136 (1) (f) of the Act.<\/p><\/blockquote>\n
460<\/span><\/p>\n
     On the  other hand, Mr. Sibal invited attention to this
\nCourt’s decision  in Ram  Dial v.  Sant Lal  &\tOrs.<\/a>  [1949]
\nSuppl. (2)  S.C.R. 739,\t in support  of his contention about
\nwhat is\t required to  be proved\t in  regard  to\t an  alleged
\ncorrupt practice.  After quoting the provisions of section 2
\nof 46  and 47,\tVictoria. c  51 three learned Judges of this
\nCourt have observed:\n<\/p>\n
\t  The words  of the  English statute,  quoted above,
\n\t  laid emphasis\t upon the  individual aspect  of the
\n\t  exercise of undue influence. It was with reference
\n\t  to the  words of  that Statute  that Bramwell, B.,
\n\t  made the  following observations  in North Dursham
\n\t  [1874] 2 O’M & H. 152
\n\t  “When the  language of the Act is examined it will
\n\t  be  found  that  intimidation\t to  be\t within\t the
\n\t  statute must\tbe intimidation\t practised  upon  an
\n\t  individual. The Indian Law on the other hand, does
\n\t  not  emphasise   the\tindividual   aspect  of\t the
\n\t  exercise of such influence, but pays regard to the
\n\t  use of such influence as has the tendency to bring
\n\t  about the  result contemplated in the clause. What
\n\t  is material  under the  Indian  Law,\tis  not\t the
\n\t  actual effect produced, but the doing of such acts
\n\t  as are  calculated  to  interfere  with  the\tfree
\n\t  exercise of  any electoral right. Decisions of the
\n\t  English Courts,  based on the words of the English
\n\t  statute, which  are not  strictly in\tpari materia
\n\t  with the  words of  the  Indian  statute,  cannot,
\n\t  therefore, be used as precedents in this country.
\n\t  In the present case, we are not concerned with the
\n\t  threat of  temporal injury, damage or harm. On the
\n\t  pleadings and\t on the findings of the Tribunal and
\n\t  of the High Court, we are concerned with the undue
\n\t  exercise of  spiritual influence  which  has\tbeen
\n\t  found by the High Court to have been such a potent
\n\t  influence as\tto induce in the electors the belief
\n\t  that they  will  be  rendered\t objects  of  divine
\n\t  displeasure or  spiritual censure  if they did not
\n\t  carry out the command of their spiritual head.<\/p><\/blockquote>\n
     I shall  now consider  the\t evidence  relating  to\t the
\nincidents at  Kalaka and  Burthal Jat  Polling stations\t one
\nafter the  another. The\t incident in  and at  the Kalaka and
\nBurthal Jat  polling station  consists of two parts, namely,
\n(1)  alleged  booth-capturing  by  the\trespondent  and\t his
\ncompanions, all\t of them  armed\t with  deadly  weapons\tlike
\npistol
\n461<\/span>
\nand sword or kirpan and the polling of bogus votes marked in
\nfavour of  the\trespondent  after  threatening\tthe  polling
\nofficers and  polling agents who were in the polling station
\nwith violence  and making  them to  Stand still, and (2) the
\nrespondent scaring  away electors  who were  standing in the
\nqueue outside  the polling  station awaiting  their turn for
\ncasting\t their\tvotes.\tRegarding  the\tfirst  part  of\t the
\nincident at  Kalaka there  is the evidence of P.Ws. 7 to 10,
\n12, 14, 17 and 18 on the side of the appellants and of R.W..
\n1 to  6 and  22 on the side of the respondent. P.Ws. 7 to 10
\nare official  witnesses while  P.Ws. 12,  14, 17  and 18 are
\nprivate individuals.  Similarly, R.W..\tl to  4 are official
\nwitnesses while R.W.. 5, 6 and 22 are private individuals.\n<\/p>\n
     Tara Chand\t (P.W.12) is  one of  the appellants. He was
\nthe polling  agent of  the Congress  (I) candidate,  Sumitra
\nDevi who has been referred to at some places in the evidence
\nas Sumitra Bia, along with Amar Singh (P.W.17). His evidence
\nis that\t he retired as polling agent after one hour and P.W.
\n17  took  over\tas  polling  agent  and\t thereafter  he\t was
\narranging the  voters in  the queue.  He has stated that the
\nrespondent and\t5 or 7 of his companions, all of them armed,
\nentered the polling station when he was standing at the gate
\nand they threatened the polling staff at gun point and asked
\nthem to\t stand aside.  Thereafter the  respondent asked\t his
\ncompanions to  do their\t work and  they tore  off the ballot
\npapers from the bundle and affixed the seal in favour of the
\nrespondent and\tput those ballot papers into the ballot box.
\nThe respondent’s  companions, Tula  Ram who  was his polling
\nagent, Ram Krishan (R.W.5), Desh Raj and Krishan Lal put the
\nseals on  the counterfoils  and the thumb impressions on the
\ncounterfoils of\t the ballot  papers.  Amar  Singh  (P.W.17),
\nappellants’ polling  agent, Mangal  Singh (P.W.18) and Basti
\nRam were  present. When Mangal Singh (P.W.18) protested, the
\nrespondent’s Sikh  companion caused  injury to\thim with his
\nsword at  the respondent’s  instance. When  Basti Ram raised
\nobjection  to  the  behaviour  of  the\trespondent  and\t his
\ncompanions he  was injured  with the  butt  of\ta  gun.\t The
\npolice-Men who\twere present  in the polling station did not
\nintervene but  some time  later the people of Kalaka village
\nand some other police personnel arrived. Then the respondent
\nand his\t companions fled away, abandoning two motor-vehicles
\nat  the\t spot.\tThe  Deputy  Commissioner  (P.W.7)  and\t the
\nReturning Officer  (P.W.10) came there one hour later. P.W.7
\ninterrogated  the  polling  staff  and\ttape-recorded  their
\nconversation. The  polling was stopped for over one hour and
\nmany people  got frightened  and went  away from the polling
\nstation without casting their votes. P.W. 12 has admitted in
\nhis cross-examination that he had
\n462<\/span>
\ncanvassed for the Congress(I) candidate for five to ten days
\nprior to the date of poll and had worked as polling agent of
\nCongress (I)  candidates even  earlier. He  claims  to\thave
\nreported to  the police after the completion of the poll and
\nhas stated  that the police did not send for anybody. He has
\nalso stated  that he  did not  see Ajit\t Singh\tson  of\t Rao
\nBirendra Singh\tat Kalaka during the poll. He has denied the
\nsuggestion  that   the\tCongress   (I)\tworkers\t  beat\t the
\nrespondents polling agent, Tula Ram and drove him out of the
\npolling station\t about one  hour of  the commencement of the
\npoll.\n<\/p>\n
     Amar Singh\t (P.W.17) of Kalaka was the polling agent of
\nSumitra Devi  alongwith P.W.12. He claims to have taken over
\nas   polling agent  from Tara  Chand (P.W.12) one hour after
\nthe commencement  of the  poll. He  has stated that at about
\n10.30 a.m.  the respondent  came inside\t the polling station
\naccompanied by 3 or 4 persons. The respondent was armed with
\na rifle\t while one  of his  companions had  a sword  and the
\nother had a pistol and the rest sticks. The respondent asked
\nP.W.17 and the polling staff to stand aside and directed his
\ncompanions  to\tpoll  votes.\tThereupon  the\trespondent’s
\ncompanions  took   the\tballot\t papers\t and  affixed  thumb
\nimpressions and\t marked the  ballot papers and put them into
\nthe ballot  box. When  P.W.18 objected\tto the\thigh  handed
\nbehavior of  the respondent  his Sikh  companion thrust\t the
\nsword at  Mangal Singh\t(P.W.18). When Basti Ram also raised
\nobjection the  respondent gave him a thrust with the butt of
\na   rifle. P.W.17 and others who were in the polling station
\nwere pushed  outside. m\t e police-men  who were\t inside\t the
\npolling station\t did not  interfere.  Some  time  later\t the
\npeople from Kalaka village and some police personnel arrived
\nand thereupon  the respondent  and his\tcompanions left\t the
\nplace. P.W.17  and others  detained two\t motor-cycles of the
\nrespondent’s party  and\t T caught hold of two of the fleeing
\npersons and  produced the motor cycles before P.W.7 who came
\nthere alongwith\t P.W.10. P.W.17\t has denied  in\t his  cross-
\nexamination that  Ajit\tSingh  son  of\tRao  Birendra  Singh
\nvisited the  Kalaka  Polling  station.\tHe  has\t denied\t the
\nsuggestion that\t he and\t other Congress\t (I) supporters beat
\nTula Ram  and drove  him out of the polling station and that
\nhe has\t given\tfalse evidence\tbeing a\t sympathiser of\t the
\nCongress (I)  party. Mangal  Singh (P.W.18)  of\t Kalaka\t has
\nstated in  his evidence\t that when  he was  in\tthe  polling
\nstation and  his particulars  were being  checked before  he
\ncould cast  his vote  the respondent  armed w with a gun and
\naccompanied by\t3 or  4 persons,  one of  them armed  with a
\npistol and  the other  with a sword and the rest with lathis
\ncame inside the polling station. The
\n463<\/span>
\nrespondent asked  P.W. 18 and others who were in the polling
\nstation\t to   stand  aside  under  threat  of  being  killed
\notherwise. When P.W. 18 objected to the respondents behavior
\nthe respondent asked his men to beat him and turn him out of
\nthe  polling   station.\t Thereupon   the  respondent’s\tSikh
\ncompanion thrust  the tip  of his sword near his right foot.
\nWhen Basti  Ram who was behind R.W. 18 protested against the
\nbehavior of the respondent and his companions the respondent
\ncaused an  injury to him with the butt of a rifle. Later the
\npeople of  Kalaka village  and some police personnel arrived
\nand the\t respondent and him companions ran away. P.W. 18 and
\nothers informed\t P.W. 10 and the police about what happened.
\nP.W. 18\t has admitted  in his  cross-examination that he had
\ncanvassed for  the Congress  (L) candidate but he has denied
\nthe suggestion\tthat he has always been helping the Congress
\n(I) Party and has therefore given false evidence.\n<\/p>\n
     Hari Singh (P.W.8) who was a teacher in one of the Ahir
\nEducational Institutions  was the  Presiding Officer  at the
\nKalaka polling\tstation. He  has stated\t that at about 10.30
\na.m. until  which time\tthe polling  went on  smoothly,\t the
\nrespondent accompanied\tby some\t other persons\treached\t the
\npolling station and came into the polling station along with
\nfour or\t five persons,\tcarrying a  small gun with him while
\none of\this companions\twas carrying  a pistol and another a
\nsword and  the others  sticks. The E respondent who appeared
\nto be  in a  rage pointed  the gun  towards P.W.8 and others
\nsaying that  the  remaining  votes  should  be\tpolled.\t The
\nrespondent’s companions\t snatched  ballot  papers  from\t the
\nofficials in the polling station and tore off about 25 or 26
\nballot papers  and marked  them in  favour of the respondent
\nand put\t them into  the ballot\tbox. They  put their  thumb-
\nimpressions on the counter-foils of the ballot papers. There
\nwas noise  outside when\t the respondent\t and his  companions
\nwere inside  the polling  station. The\trespondent  and\t his
\ncompanions went\t out the  polling station  after  25  or  26
\nballot papers  had been\t put into  the ballot  box as stated
\nabove. Soon after the respondent and his companions left the
\nplace a\t Sub-Inspector of  Police came\tthere.\tP.W.  8\t was
\nwriting the  report when  P.Ws.7 and  10 accompanied  by the
\nSuperintendent\tof  Police  arrived.  After  completing\t his
\nreport P.W.  8 got  it signed  by all  the polling staff and
\nhanded it  over to  P.W. 7  and he  recorded his  statement.
\nEx.P-5 is  the diary  prepared by  P.W. 8 in accordance with
\nInstruction-74 of the Instructions to Polling Officers given
\nby the\tElection Commission  of India.\tP.W. 8 had deposited
\nEx.P-5 along  with the other records in the Election Office.
\nHe has stated the Ex.P-5 was prepared by him
\n464<\/span>
\nand that  it is\t correct. In  his cross-examination  he\t has
\nstated that  nee dose not know if the High School run by the
\nAhir Education\tBoard where  he was employed since 1972 does
\nor does not belong to Rao Birendra Singh. He has denied that
\nhe and\tthe members  of his  family had\t been supporting Rao
\nBirendra Singh in the elections. he has admitted that he has
\nnot mentioned  anything in column 20-E of Ex.P-5 relating to
\nintimidation of\t voters and other persons except crossing it
\nand has stated that it is because he was very much perturbed
\nat that\t time. Reference will be made in detail later to the
\ncontents of  the Presiding  Officer’s diary  Ex.P-5 and\t the
\nreport of  P.W. 8  to the  police contained in Ex.P-6 on the
\nbasis of  which FIR No. 103 of 1982 dated 19.5.1982 had been
\nregistered by  Dharam Pal (P.W.9) Assistant Sub-Inspector of
\npolice on  19.5.1982. Suffice  it to  say  at  present\tthat
\nreference has  been made in Ex.P-5 to the respondent putting
\npressure on  the polling  staff and  getting 25\t or 26 bogus
\nvotes polled in his favour when there was a lot of noise and
\ncommotion in the polling station from 10.30 to 11.30 a.m. as
\na result of which the polling had stopped. In his report the
\npolice also P.W. 8 has stated that the respondent armed with
\na pistol  came inside the polling station along with four or
\nfive his  companions named, one of them with a sword and the
\nothers with  sticks and\t hurled abuses\tand forcibly  polled
\nabout 25  or 26\t ballot papers\tat gun\tpoint on  account of
\nwhich he  could not  stop them\tfrom doing so. The Assistant
\nSub-Inspector of police (P.W.9) who had been posted at Sadar
\nRewari police  station on  19.5.1982 has  deposed about\t the
\nregistration of\t FIR No.  103 of  1982 on  that day  on\t the
\nreceipt of  a rukka  from Sub-Inspector,  Deep Chand. He has
\nstated that  the FIR  Ex.P-6 is in his hand-writing and that
\nit is  correct according  to the  material on  the basis  of
\nwhich it has been registered. He has not been cross-examined
\nabout  the  registration  of  FIR  No.\t103  of\t 1982  dated
\n19.5.1982.\n<\/p>\n
     Bala  Bhaskar   (P.W.7),  the  Deputy  Commissioner  of
\nMohindergarh was  District Election Officer for the election
\nto the\tHaryana Legislative  Assembly held  in May, 1982. He
\nhas stated that when he was travelling by car at about 10.30
\na.m. between  Monoddola and  Zainabad villages in the course
\nof his\tvisits to some of the polling stations in the Rewari
\nConstituency on\t 19.5.1982 he received a wireless message to
\nthe  effect  that  the\trespondent  had\t complained  against
\nCongress (I)  workers saying  that 40  or  50  of  them\t had
\nattacked Congress  (J) workers\tat Kalaka.  P.W.  7  reached
\nKalaka polling\tstation at  12.30 p.m. after instructing the
\npolice over the wireless to take action on
\n465<\/span>
\nthat complaint\tof the\trespondent. When  he reached  Kalaka
\npolling\t  station he  received\toral  complaints  about\t the
\ndetention of a motor-cycle belonging to the workers of the
\nCongress (J)  party. He\t went inside the polling station and
\ntape-recorded the conversations with the officers in Ex.P.W.
\n7\/1 of\twhich Ex.P-1  is the  transcript prepared  under his
\nsupervision. He\t has stated  that he compared the transcript
\nEx.P-1 with  the original  tape-record and  found it  to  be
\ncorrect\t and   that  it\t  bears\t his  signature\t by  way  of
\nauthentication. He  has admitted that there are some gaps in
\nEx.P-1 as the voices in the tape were not clear and audible.
\nHe has\tstated that  the tape record remained in his custody
\nthroughout and\twas not\t tampered with\teither himself or by
\nanyone else and that it contains the voices of the Presiding
\nOfficer (P.W.8),  the polling officer Roop Chand (R.W.7) and
\nthe Police Constable, Mohinder Singh (R.W.3) whose number is\n<\/p>\n
498. Reference\twill be\t made later  to the  contents of the
\ntape-record and\t to the report Ex.P-2 submitted by P.W. 7 to
\nthe Government\tabout  the  incident  which  took  place  on
\n19.5.1982 during the elections as it had come to his notice.
\nIn his\tcross-examination P.W.\t7 has admitted that he could
\nnot now\t identify the  persons whose voices were recorded in
\nthe tape  and that the tape is Government property which had
\nbeen issued  to him  by the  Government and  that the  tape-
\nrecorder remained  with him  all  the  time  and  the  tape-
\nrecorder and  tape-record and  the transcript Ex.P-1 had not
\nbeen placed  in the  record room.  It has to be noticed that
\nthe respondent\t(R.W. 22)  has admitted in his evidence that
\nthough\the   had  made\t several  reports  to  the  Election
\nCommission and\tother Election\tAuthorities before and after
\nthe election  with which  we are concerned in this-appeal he
\nhad not made any report against P.W. 7.\n<\/p>\n
     Shri Krishan  (P.W. 10) was the Sub-Divisional Officer,
\nRewari and  Returning Officer for the Rewari Constituency in
\nthe election  held to  the Haryana  Legislative Assembly  in
\nMay, 1982.  In the  course of  his tour\t of the Constituency
\nafter 10 a.m. On 19.5.1982 he reached Chalky polling station
\nat about 11 or 11.30 a.m. On receipt of a complaint from the
\npolling station\t to the effect that the respondent alongwith
\nsome other  persons intimidated\t the polling   staff and the
\npublic at  that polling\t station. He was with P.W. 7 when he
\nreached Chalky polling station and he found the polling at a
\nstand-still at\tthat time.  When he  reached Chalky  polling
\nstation the  Station  House  Officer  of  Sadar\t Rewari\t was
\npresent there  alongwith a  Head-Constable  and\t some  other
\npolice personnel.  The Deputy Commissioner (P.W.7) conducted
\nan enquiry and interrogated the polling staff and the
\n466<\/span>
\npolice personnel  and tape-recorded  their conversation. One
\nof the polling officers told P.W. 10 that the polling agents
\nwere turned  out by  the respondent  and his  companions and
\nthat a bundle of ballot papers was taken away and the ballot
\npapers were  marked and\t put into  the ballot boxes and that
\nthe voters who were in the polling booth were turned out. He
\nfound two  motor-cycles\t  stranded near the polling station.
\nIt is  seen from  his evidence\tthat he was transferred from
\nthe Rewari Sub-Division on 1.6.1982 and that a file had been
\nhandled in a way different from the one in which it had been
\nhandled until  he handed  over charge  of his office. He has
\ndenied the  suggestion\tthat  the  file\t was  created  in  a
\nparticular  manner   by\t insertion   of\t some\tpapers\t for
\nfabricating evidence  in favour of the appellants. It has to
\nbe noticed   in\t this connection  that\tthe  respondent\t had
\ncomplained Ex.R.7  dated 4.5.1982 that P.W. 10 is married in
\nthe locality and was interfering with the election.\n<\/p>\n
     On the  other hand,  it is\t the evidence  of Roop Chand
\n(R.W.1) who  was Steno-Typist  in the  office of the Project
\nOfficer,  Agricultural\t Department  in\t  Haryana  and\t the
\nalternate Presiding  Officer in\t Kalaka polling\t station  on
\n19.5.182 that  after the  polling started  at 7.30 a.m. Ajit
\nSingh son  of Rao Birendra Singh came to the polling station
\nat about  8.30 a.m  armed with a rifle and accompanied by 15
\nor 20  persons and  asked for the respondent’s polling agent
\nTula Ram  and that  Ajit Singh’s  companions pushed Tula Ram
\nout of\tthe polling  station. Ajit  Singh remarked  that the
\npolling at  the Kalaka\tpolling station had always been one-
\nsided and  directed his\t companions to\tpoll votes. When the
\npolling staff  resisted, Ajit  Singh abused R.W.1 and others
\nand asked  his companions  to beat them and they slapped the
\npolling staff. Ajit Singh’s companions picked up some ballot
\npapers and  tore them  off from\t their counter-foils and put
\nthem into  the ballot  box for\tabout on  hour and  left the
\npolling station\t thereafter.  The  respondent  came  to\t the
\npolling station\t about one hour later and told the Presiding
\nOfficer (P.W.8)\t that he  should not be partial to any party
\nand he\tcame to\t know that his polling agent had been beaten
\nand that bogus votes had been polled in the polling station.
\nThereupon P.W.\t8 assured  the resondent  that he  would not
\npermit anything\t of that  sort to be repeated. About half an
\nhour after  the departure of the respondent from the polling
\nstation many  people  of  Kalaka  village  gathered  at\t the
\npolling station\t and proclaimed\t that they  would poll votes
\nforcibly. When\tR.W. 1 and others resisted and collected the
\nvoting material\t those persons\tbeat the  polling staff\t and
\nsnatched the  voting material  and  in\tthe  struggle  which
\nensued P.W. 8 was
\n467<\/span>
\ndragged upto the door of the polling station and was rescued
\nby the\tpolice-men on  duty. Since the police present in the
\npolling station\t could not  pursuade the  crowd to  disperse
\npolling was  stopped at\t about 10.15 a.m. and P.Ws. 7 and 10
\narrived there  subsequently and\t arranged for the polling to
\nrestart after  making the  electors to\tstand in a queue. He
\nhas denied that P.W. 7 asked for his name and profession and
\nthat he\t told him that he was Roop Chand and a Stenographer.
\nHe has\tstated that  he asked  P.W. 8 to record the visit of
\nAjit Singh  and his  companions into the polling station and
\nthat P.W.  8 told  him that he has recorded it in his diary.
\nThe appellants’\t case  regarding  forcible  polling  by\t the
\nrespondent’s companions\t at his instance and the tape-record
\nwas put\t to R.W.  1 and\t has been  denied  by  him.  He\t has
\nadmitted that  a few  days after  the  election\t the  police
\nobtained an  affidavit from  him on judicial stamp paper but
\nhe has\tdenied that  it\t was  done  under  pressure  of\t the
\nrespondent.\n<\/p>\n
     Deen Dayal\t (R.W.2), a  teacher was the polling officer
\nalong with  Dhani Ram  (R.W.4) who is also a teacher. He has
\nstated that  after the polling at the Kalaka polling station
\nwent on\t peacefully for about an hour Ajit Singh, armed with
\na pistol,  came with 15 or 20 persons at about 8.30 a.m. and
\nentered Kalaka\tpolling station\t forcibly and  asked for the
\npolling agent  of the  respondent and told his companions to
\nremove him  from there.\t Ajit Singh  asked his companions to
\nbeat R.W. 2 and others and they were accordingly beaten, and
\nP.W. 8\ttold them  to allow  Ajit Singh’s  companions to  do
\nwhatever they  liked and thus avoid being beaten saying that
\nhe would  make a  complaint about the Latter. Ajit Singh and
\nhis companions polled bogus votes for about half an hour and
\nleft the  polling station. The respondent came there half an
\nhour later  and told  P.W. 8  that he had been informed that
\nhis polling  agent had\tbeen beaten and that bogus votes had
\nbeen polled  and protested  against it\tto P.W.8. P.W.8 told
\nthe respondent\tthat whatever had happened and that he would
\nconduct the  poll in  a proper manner thereafter. About half
\nan hour\t after the  respondent left  the place the people of
\nKalaka village\tcame in\t a crowd  and  entered\tthe  polling
\nstation and  told the  polling staff  that they\t would\tpoll
\nvotes forcibly\tin favour  of Sumitra Devi. When the polling
\nstaff refused  to act  according to  their desire  they beat
\nthem  and  try\tto  snatch  the\t ballot\t box  from  R.W.  4.
\nMeanwhile, Constable  Mohinder Singh,  (R.W. 3)\t came inside
\nthe polling  station wrested  the ballot  box from the crowd
\nand placed  it at its original place. Soon thereafter a Sub-
\nInspector of Police and some other constables came and tried
\ntc remove  the crowd from the polling station. About half an
\nhour later P.W. 10
\n468<\/span>
\ncame there  and left  the place\t after talking\twith P.W. 8.
\nP.W. 7 came there about half an hour thereafter and directed
\nP.W. 8 and the polling staff to conduct the polling properly
\nand polling started again at about 12 noon. He had stated in
\nhis cross-examination that he did not make any report either
\nto the\tpolice or  to P.Ws.  7 and  10 though slaps and fist
\nblows had  been given to him  by the miscreants but he asked
\nP.W. 8\tafter PWs.  7 and 10 left the place as to whether he
\nhad reported  about the\t maltreatment meted  out to  polling
\nofficers and  he answered  in the affirmative. He has stated
\nthat P.W.7  talked only\t to P.W.  8 and\t to no other polling
\nstaff and  did\tnot  tape-record  any  conversation  in\t his
\npresence and that he does not know if P.W. 7 had talked with
\nthe police  constable who was posted at the polling station.
\nHe has\t denied\t that Ajit Singh had not come to the polling
\nstation at  all and  that no  incident of the kind stated by
\nhim took place in the polling station.\n<\/p>\n
     Mohinder Singh  (R.W. 3)  who was\ton duty\t as a police
\nconstable at  Kalaka polling station on 19.5.1982 has stated
\nthat about  half an  hour after\t the polling started at 7.30
\na.m. he\t heard shouts  that Ajit Singh had come and saw Ajit
\nSingh, armed with a pistol, coming in to the polling station
\nalong with  15 or  20 persons  and that\t inspite of the fact
\nthat he\t obstructed 2  or 3  companions of Ajit Singh pushed
\nthe respondent’s  polling agent\t out of\t the polling station
\nand stated  beating him\t and he\t rescued him. He also stated
\nthat he\t does not  know what  Ajit Singh and  his companions
\ndid inside the polling station where they remained for about
\n30 to  45 minutes  and that  the respondent  come there by a
\nmotor-oar with\t2 or 3 persons about half an hour after Ajit
\nSingh and his companions left the place and left the place 2
\nor 3  minutes later  after go mg inside the polling station.
\nHe has\tfurther stated\tthat about  half an  hour thereafter
\nabout 50 to 60\tpersons came from Kalaka village and entered
\nthe polling  station forcibly  and snatched the ballot boxes
\nafter beating  the polling staff and they were turned out of
\nthe polling  station by\t Sub-Inspector, Deep  Chand and some
\npolice constables  who arrived there some time later. He has
\nstated that  P.W. 10  come there  about\t 30  or\t 45  minutes
\nthereafter and left the place after  talking with P.W. 8 and
\nthat P.W.  7 arrived there about 30 to 45 minutes after P.W.
\n10 left\t the place  and talked\tto  the\t polling  staff\t and
\narranged for the polling starting again at about 12 noon. He
\nhas denied in his cross-examination that P.W. 7 had any talk
\nwith him  in the  polling station and has stated that he did
\nnot make  any report  about the\t incident or  the  treatment
\nmeted out   to\thim by\tAjit Singh and his companions though
\nthe respondent’s
\n469<\/span>
\npolling agent was bleeding and his clothes were torn. He has
\ndenied that the voice recorded in the tape (Ex.P.W. 7\/1) put
\nto him\tis his\tvoice and  also that P.W. 7 interrogated him
\nand he\tmade a\tstatement. The appellants’s case of forcible
\npolling by  the respondent’s  men was  put to R.W. 3 and has
\nbeen denied by him.\n<\/p>\n
     The evidence of R.W. 4 is more or less the same as that
\nof R.Ws.  1 to\t3 as regards the alleged forcible polling of
\nbogus votes  by Ajit  Singh and\t his companions.  He too has
\nstated that  at the  instance of  P.W. 7  who arrived  there
\nabout half  an hour  after P.W.\t 10  left  the\tplace  after
\ntalking to  P.W.8 the polling started again. He has admitted
\nin his\tcross-examination that\tP.W. 8 had some conversation
\nwith P.Ws.  7 and  10 but  he has denied that the respondent
\ncame to\t the polling  station  armed  with  a  revolver\t and
\naccompanied by 15 to 20 persons and got some votes polled at
\ngun point  and ran  away along\twith his  companions on\t the
\narrival of the police and the villagers.\n<\/p>\n
     Ram Krishan  (R.W. 5),  the brother of the respondent’s
\npolling agent  Tula Ram who has not been called as a witness
\nadmittedly supported  the respondent in the election held in
\nMay, 1982.  He has  stated that\t t he  went to\tthe  polling
\nstation for  casting his  vote at  about 7.30  a.m. when the
\npolling started\t and that  Ajit Singh,\tarmed with a pistol,
\ncame to\t the polling  station at about 8.30 a.m. accompanied
\nby 40  or 50 persons and entered the polling station with 15
\nor 20  persons. Some persons who entered the polling station
\nalong with  Ajit Singh\tdragged Tula  Ram out of the polling
\nstation and  beat him  and when\t he intervened\tthey started
\nbeating him  also as  a result of which his clothes got torn
\nand he was rescued by the police constable (R.W. 3). He went
\nwith his  brother by  his scooter  to Rewari and reported to
\nthe respondent\tabout the  incident and\t leaving Tula Ram at
\nRewari he  came along  with the\t respondent and 2 or 3 other
\npersons\t by   a\t motor-car   to\t Kalaka\t village  where\t the
\nrespondent went\t into the polling station and left the place
\n5 or 7 minutes later for Rewari. He has stated in his cross-
\nexamination that  both himself and his brother Tula Ram bled
\nfrom different\tparts of  the bodies because of the injuries
\nsustained  by  them  and  that\tthey  did  not\thowever\t get
\nthemselves medically  examined or  make any complaint to any
\nauthority because there were only abrasions from which there
\nwas some  bleeding. It\tis seen\t from his evidence that Tula
\nRam who\t has not been examined is alive and is in service as
\na Clerk\t in some department at Chandigarh where the election
\npetition was tried.\n<\/p>\n
470<\/span><\/p>\n
     Suresh (R.W.  6) has stated that when he reached Kalaka
\npolling station\t at 8.30 a.m. in May, 1982 Ajit Singh, armed
\nwith a\trevolver, came\tthere with 40 to 50 persons and went
\ninside the  polling station with about 15 to 20 persons. The
\nrespondent’s polling  agent Tula  Ram was dragged out of the
\npolling station\t and beaten. When R.W. 5 rushed for his help
\nhe too\twas beaten and was rescued by a police constable who
\nmay on\tduty at\t the polling  station. The  respondent\tcame
\nthere by  a car\t about half an hour after Ajit Singh and his
\ncompanions left\t the place  and went away after remaining in
\nthe  polling   station\tfor   about  5\tor  6  minutes.\t The
\nappellants’ case of forcible polling by the respondent’s men
\nhad been  put to R.W. 6 and denied by him. He too has stated
\nin his\tcross-examination that\tP.W.. 7\t and 10\t came to the
\npolling station after the respondent left the place and that
\non their  intervention\tpolling\t restarted  and\t the  people
\nstarted forming\t a  queue  and\the  himself  cast  his\tvote
\nthereafter.\n<\/p>\n
     The respondent  R.W. 22  has stated that when he was in
\nhis house  at Rewari  on 19.5.1982  after deciding not to go
\nout of\tthe house  on that  day R.W. 5 and his polling agent
\nTula Ram came there at 8.45 a.m. from Kalaka polling station
\nwith their  clothes torn  and appearing\t to have been beaten
\nbadly and  told him  that Ajit Singh accompanied by 50 or 60
\npersons entered\t the  polling  station\tand  beat  them\t and
\nindulged in forcible polling and that he thereupon went by a
\ncar to Kalaka village alongwith R.W. 5 at about 9.15 or 9.30
\na.m. On\t that day.  Leaving his\t car at\t some k\t distance he
\nwalked to  the polling\tstation and found 50 or 60 villagers
\ncollected there and he entered the polling station protested
\nto P.W.\t 8 and\tbrought the complaint given to him by R.W. 5
\nand Tula  Ram to  his notice.  After P:W. 8 assured him that
\nnothing of  that sort  will be\tallowed\t to  happen  in\t the
\nremaining part\tof the\tday he\treturned from  Kalaka 7 or 8
\nminutes later  and sent a written report to the police about
\nthe  incident  with  copies  to\t P.W.  7  and  the  election
\nauthorities and\t received a  message from the police station
\nat 10.30 a.m. that his complaint had been flashed to P.W.. 7
\nby wireless message and that appropriate action was expected
\nto be  taken soon.  He has further stated that in his letter
\nEx. R.\t7 dated 4.5.1982 he requested for the appointment of
\nan observer  because of official interference and had stated
\nthat P.W.  10 was  married in that area and was interferring
\nin the election. He has stated in his cross-examination that
\nFIR No.\t 103 of\t 1982 was  connected at a later stage at the
\ninstance of  Rao Birendra  Singh.  He  was  the\t Speaker  of
\nHaryana Legislative  Assembly until the first meeting of the
\nnewly constituted  Legislative Assembly\t was held  after the
\nelection held on
\n471<\/span>
\n19.5.1982 and  after having  succeeded in  the election as a
\nCongress (J)  candidate he joined the Congress (I) Party and
\nis now\tthe Transport  Minister. He  has admitted that he is
\nnot made  any mention  in any  of his complaints sent to the
\nChief Election\tCommissioner and  other election authorities
\nprior to 19.5.1982 that P.W. 7 was acting in any way against
\nhim in a prejudicial manner. He has admitted that he has not
\nstated in  his written\tstatement that\the complained to the
\npolice in  writing about  the  incident\t in  Kalaka  polling
\nstation\t and   had  sent  copies  thereof  to  the  Election
\nCommissioner and  P.W. 7. He has stated that he did not make
\nany complaint  naming  Ajit  Singh  specifically  about\t the
\nincident at  Kalaka because the picture was not clear to him
\nat  that  time\tand  not  because  such\t an  incident  never
\nhappened. The  appellants’ case of booth-capturing and bogus
\npolling by the respondent in Kalaka polling station had been
\nput to\tR.W. 22 and denied by him. The tape-record (Ex. P.W.
\n7\/1) was  played before\t him and  he has stated that it does
\nnot contain his voice and that it is rather the voice of Rao
\nBirendra Singh.\n<\/p>\n
     The oral  evidence of R.Ws. 1 to 6 that Ajit Singh came
\nalong with  some of  his companions and dragged out Tula Ram
\nfrom Kalaka  polling station  and beat\thim  and  that\tthey
\nsnatched ballot\t papers and ballot boxes and got bogus votes
\npolled in  that polling\t station and the evidence of R.W. 22
\nthat R.W.  5 and  Tula Ram came and told him that Ajit Singh
\naccompanied by\t50 or 60 persons entered the polling station
\nand beat  them and  indulged in\t forcible polling  cannot be
\naccepted for  two important  reasons, namely,  that no\tsuch
\nplea had  been put  forward in\tthe written statement of the
\nrespondent where no doubt he has stated vaguely that the men
\nof Rao\tBirendra Singh\tcaptured the booth at Kalaka and the
\nsupporters and\tvoters of  the respondent  were\t badly\tout-
\nmanouevered and\t it could  be gathered\tfrom the  fact\tthat
\nwhereas Sumitra\t Devi had obtained 484 votes he had obtained
\nonly 53\t votes in  that polling\t station and  not that\tAjit
\nSingh and  his companions came to Kalaka polling station and
\nindulged in forcible voting or that they beat R.W. 5 and his
\nbrother Tula  Ram. The\trespondent has denied in his written
\nstatement that\tthe   process of  polling got  disrupted for
\nover an\t hour at Kalaka polling station and that a number of
\nvoters had  to refrain\tfrom casting  their votes;  but,  as
\nmentioned above\t it has\t been admitted\tby R.Ws. 1 to 4 that
\nthe polling  was suspencial  at Kalaka\tpolling\t station  on
\n19.5.1982 and  that it re-started after the arrival of P.Ws.
\n7 and  10  at  the  polling  station  some  time  after\t the
\ndeparture of  the respondent  and his companions. though the
\ncase
\n472<\/span>
\nof the\trespondent that\t there was  forcible polling  at the
\nKalaka polling\tstation by  Ajit Singh and his men cannot be
\naccepted for  want of any such plea in the written statement
\nMr. Sibal  was justified  in requesting\t the Court to accept
\nthe admission on the part of the respondent’s witnesses that
\nthere was  forcible polling at the Kalaka polling station in
\nthe morning  of 19.5.1982 and that the polling got disrupted
\nas a  consequence thereof  and that it was recommended after
\nthe arrival  of P.Ws.  7 and 10 and to reject their evidence
\nthat Ajit Singh and his men were the cause.\n<\/p>\n
     Under  instruction\t 74  of\t Instructions  to  Presiding
\nOfficers  issued   by  the  Election  Commission  of  India,
\nextracted above,  the Presiding\t Officer is bound to draw up
\nthe proceedings connected with the taking of the poll in the
\npolling station\t in the\t diary\tto  be\tmaintained  for\t the
\npurpose in  the form  in which Ex.P.-5 had been filled up by
\nthe Presiding  Officer (P.W.  8). The  Presiding Officer  is
\ndirected by  the instruction to go on recording the relevant
\nevents as  and when  they occur\t and  not  to  postpone\t the
\ncompletion and\tfilling of  all the  entries in the diary to
\nthe completion of the poll and he has to mention therein all
\nthe important  events. Even  the alternate Presiding Officer
\n(R.W. 1)  has stated  in his  evidence\tthat  the  Presiding
\nOfficer (P.W.  8) told\thim that  it was  his duty to report
\nabout the  incident and\t he would  do so.  It is  seen\tfrom
\nColumn 18  of Ex.P-5  relating to the number of votes polled
\nthat 195  votes were polled from 8 a.m. to 10 a.m., 205 from
\n12 noon\t to 2  p.m., 106+3  from 2  p.m. to 4 p.m. and to on
\nupto 4.30  p.m. and that in the disputed period from 10 a.m.
\nto 12  noon only  51 votes  were polled.  In column 21 it is
\nstated that  the polling  was interrupted  and disrupted  by
\nrioting and  open violence and that from 10.30 a.m. to 11.30
\na.m. the  respondent put  pressure on  the polling party and
\ngot 25\/26  bogus votes\tpolled in his favour and there was a
\nlot of noise and commotion outside. In column 22 relating to
\nthe question  whether the  poll was  vitiated by  any ballot
\npaper being unlawfully marked by any person and deposited in
\nthe ballot  box it  is stated  that 4  or 5 persons who came
\nwith the  respondent snatched ballot papers and forcibly put
\nthem into  the ballot  boxes. The Presiding Officer (P.W. 8)
\nwho has\t deposed  about\t the  incident\thas  stated  in\t his
\nevidence that  Ex.P.-5 is the diary which he submitted after
\nthe poll,  that it  was prepared  and signed  by him  and is
\ncorrect and  that he  deposited\t it  along  with  the  other
\nrecords in  the election office. As stated earlier, what has
\nbeen elicited  in his  cross-examination is  that apart from
\ncrossing column\t 20(E)\t relating to  intimidation of voters
\nand other persons he has not
\n473<\/span>
\nmentioned anything in that column and that he failed to fill
\nup that column in full because he was very much perturbed at
\nthat time.  It has  not been suggested to P.W. 8 that he had
\nprepared Ex.P-5\t later under  the pressure  and influence of
\nthe defeated  candidate Sumitra Devi through her brother Rao
\nBirendra Singh.\t Nor is\t there any positive evidence to that
\neffect on  the side  of the respondent. Therefore, it is not
\nknown on  what basis the learned trial Judge has observed in
\nhis judgment  that Ex.P-5  appears to  have been  made up by
\nP.W. 8\tunder the  pressure and\t influence of  the  defeated
\ncandidate Sumitra  devi through\t her  brother  Rao  Birendra
\nSingh. In  the absence\tof any\tmaterial on record or even a
\nsuggestion to  that effect to the Presiding Officer (P.W. 8)
\nwho has\t stated that he filled it up correctly and deposited
\nit alongwith  the other records in the election office it is
\nnot possible  to agree\twith the  view of  the learned trial
\nJudge that  Ex.P-5 has been got up later by P.W. 8 under the
\npressure and  influence of  the defeated  candidate  Sumitra
\nDevi through  her brother  Rao\tBirendra  Singh.  Ex.P-5,  a
\ncontemporaneous document  prepared by  the Presiding Officer
\n(P.W. 8) as required by Instruction 74 (supra) and deposited
\nby him\tin the\telection office\t after\tthe  poll  was\tover
\nalongwith the  other records  is a  very valuable  piece  of
\ndocumentary evidence  corroborating the oral evidence of the
\nPresiding Officer  (P.W. 8)  and other witnesses examined on
\nthe side  of the appellants who have deposed about the first
\npart of the incident in the Kalaka polling station.\n<\/p>\n
     The next  contemporaneous\tdocument  corroborating\t the
\noral evidence  of P.W. 8 is the copy of the report of P.W. 8
\nto the\tpolice appended to FIR No. 103 of 1982, Ex.P-6 dated
\n19.5.1982,  prepared   by  the\tAssistant  Sub-Inspector  of
\nPolice, P.W.  9 on receipt of a rukka from the Sub-Inspector
\nof police,  Deep Chand.\t P.W. 9 has stated that it is in his
\nhand-writing and  correct according  to the  material on the
\nbasis of  which it was registered. Ag stated earlier, PSHAW.
\n9 has  not been\t cross-examined as regards the FIR contained
\nin Ex.P-6.  The learned\t trial Judge  has rejected Ex.P-6 as
\nbeing  inadmissible   in  evidence   for  corroborating\t the
\nevidence of  P.W. 8  about the\tincident in  Kalaka  polling
\nstation on  the ground that the original report of P.W. 8 to
\nthe police had not been summoned by the appellants. It is no
\ndoubt true  that the  original had  not been summoned by the
\nappellants before  P.Ws. 8  and 9  deposed about  Ex.P-6  in
\ntheir evidence.\t P.W. 8 has stated in his evidence that when
\nhe was\twriting the  report soon  after the Sub-Inspector of
\npolice came  to the polling station after the respondent and
\nhis companions had
\n474<\/span>
\nleft the place, P.Ws. 7 and 10 accompanied by Superintendent
\nof police  came there  and that after completing that report
\nhe got it signed by the polling officials and handed it over
\nto the\tpolice officer\tand he recorded his statement. It is
\nstated in  the copy  of P.M.  in  complaint  to\t the  police
\nappended to Ex.P-6 that at about 10.30 a.m. when the polling
\nwas going  on smoothly\tthe respondent came into the polling
\nstation, armed with a small pistol and accompanied by 4 or 5
\npersons, one  of the  armed with a sword and the others with
\nsticks, and  hurled abuses  and forcibly  polled about 25\/26
\nballot papers  at gun point on account of which P.W. 8 could
\nnot stop them from doing 80. He also stated that the polling
\nstaff  was  threatened\twith  danger  to  their\t lives\tand,
\ntherefore, they\t kept standing\tthere for some time and that
\nthe companions\tof the\trespondent dragged the polling agent
\n(P.W. 17)  of Sumitra  Devi and\t appropriate action  may  be
\ntaken by  the police.  It is  seen from\t the record that the
\nappellants had\ttaken steps  to summon\tFIR No.\t 103 of 1982
\ndated 19.5.1982\t and the  Head\tConstable  of  Sadar  Rewari
\nPolice station\tto prove  the incident at Kalaka. The record
\nfurther shows  that the\t respondent  also  had\tapplied\t for
\nsummoning the  orders of  Court disposing  of FIR No. 103 of
\n1982 as\t also FIR No. 104 of 1982 to which reference will be
\nmade in\t the  course  of  the  discussion  relating  to\t the
\nincident at  Burthal Jat polling station. The respondent had
\nalso applied  for summoning  the Inspector  of Police, Kedar
\nSingh to  appear  with\tthe  relevant  records\tshowing\t the
\ndisposal of the above two FIR. But subsequently he filed CMP
\n31 (E)\tof 1983\t for substituting  and their  person in\t the
\nplace of  Inspector Kadar Singh and though that petition was
\nopposed by  the\t appellants  the  trial\t Court\tallowed\t the
\npetition  on   the  same  day  i.e.  21.2.1983\titself.\t The
\nappellants also\t had filed  CMP 41(E)  of 1983 for summoning
\nthe file relating to those two FIRs from Sadar Rewari Police
\nstation. That application was dismissed by the learned Trial
\nJudge on  25.2.1983. Thus it is seen that the appellants who
\nhad   doubt not\t taken\tsteps  for  summoning  the  original
\ncomplaint given\t by P.W.  8 to\tthe  police  at\t the  Kalaka
\npolling station\t in the\t first instance probably because the
\nrespondent himself  had originally  sought the production of
\nthe relative records from the police station had later taken
\nnecessary steps\t to summon the original complaint as also to
\nrecall P.W.  8\tfor  deposing  about  that  fact.  In  these
\ncircumstances, I  find that the necessary foundation must be
\nheld to\t have been  laid for  adducing secondary evidence by
\nway of the copy appended to FIR No. 103 of 1982 (Ex.P-6) and
\nthat  the   appellants\tare  therefore\tentitled  to  adduce
\nsecondary evidence  of the  contents of\t that complaint. The
\ncomplaint of  P.W. 8  to the  police given immediately after
\nthe incident was over and soon
\n475<\/span>
\nafter the  arrival of the police personnel and the officials
\nP.Ws. 7\t and 10\t and the Superintendent of Police is another
\ncontemporaneous document and a valuable piece of documentary
\nevidence corroborating\tthe  evidence  of  P.W.8  and  other
\nwitnesses examined  on the  side of  the appellants to prove
\nthe first  part\t of  the  incident  in\tthe  Kalaka  polling
\nstation.\n<\/p>\n
     The third\tpiece of  documentary evidence let in by the
\nappellants for proving the first part of the incident in the
\nKalaka polling\tstation is  the tape-record (Ex.P.W. 7\/1) of
\nwhich  Ex.   P`l  is   a  transcript   prepared\t under\t the
\ninstructions and  mostly in  the presence  of P.W.  7 by his
\nStenographer. P.W.  7 has stated in his evidence that inside
\nthe polling  station at\t Kalaka he tape-recorded the version
\ngiven by  the officers\tabout the  incident in\tthat polling
\nstation in  Ex.P.W. 711,  and  he  compared  the  transcript
\n(Ex.P-1) prepared  by his Stenographer with the original and
\nfound it  to be\t a correct reproduction of the original, and
\nhe has\tauthenticated it  by signing  it and  that there are
\nsome gaps in Ex.P-1 as the voices in the tape were not clear
\nand audible. He has also stated that the tape-recorder which
\nhad been supplied to him by the Government, the tape Ex.P.W.
\n7\/1 and\t the  transcript  Ex.P-1  remained  in\this  custody
\nthroughout and had not been deposited by him in the election
\noffice. He has not been questioned as to why he retained the
\ntape, the  tape-recorder and  the transcript  in his custody
\nwithout depositing  them in  the election office. Therefore,
\nno adverse  inference can  be drawn  against P.W.  7 or\t the
\nappellants from\t the fact  that the  tape, the tape-recorder
\nand the\t transcript had\t not been  deposited by P.W.7 in the
\nelection office.  No suggestion\t has been  made to P.W. 7 in
\ncross-examination that\the had\tin any way tampered with the
\ntape-record  (Ex.P.W.\t7\/1)  and   he\thas  stated  in\t his
\nexamination in\tchief that a portion of the tape relating to
\nthe incident  at Burthal Jat polling station has been erased
\ninadvertently by  his own voice. The learned trial Judge has
\nrejected the  tape-record (Ex.P.W.  7\/1) holding (1) that it
\nis tampered  with later,  disbelieving the  evidence of\t the
\nP.W. 7 that a portion of what he had recorded at the Burthal
\nJat  polling   station\twas   erased  by   his\t own   voice
\ninadvertently on  the some day and (2) that the authenticity
\nof  the\t  transcript  (Ex.P.1)\thas  not  been\tproved\twith
\ndefiniteness. It is not reasonable to reject the tape merely
\nbecause some  portions thereof\tcould not  be  made  out  on
\naccount of  noise and interference not only outside but also
\ninside the  polling station  when what was being elicited by
\nP.W. 7 from the polling officers and the police-man (R.W. 3)
\nwas being  H recorded.\tIn R.  v. Maqusud  Ali (supra)\ttape
\nrecorded conversation  of the  two accused  in a murder case
\nhas been held to be
\n476<\/span>
\nadmissible in  evidence for the purpose of proving the guilt
\nof the\taccused and  it has  been observed  that  the  tape-
\nrecording was  a matter of the utmost importance and that it
\nis indeed  the highly  important piece of evidence which the
\ndefence strenuously  sought to\tkeep out.  In R.  v.  Robson
\n(supra) in  which reference  has been  made to K. v. Maqusud
\nAli (supra)  tape-recording had\t been  held to be admissible
\nin  the\t  case\tin   which  the\t accused  was  charged\twith
\ncorruption, rejecting  the plea\t of the\t defence that it was
\ninadmissible inter  alia because  in many  places it was un-
\nintelligibIe though  it was  however not  contended that the
\ntape-recording was  as such inadmissible in evidence of what
\nwas recorded on it .\n<\/p>\n
     It is  clear from these and the other decisions of this
\nCourt referred\tto  supra  that\t tape-recorded\tevidence  is
\nadmissible   provided\tthat   the   originality   and\t the
\nauthenticity of the tape are free from doubt. In the present
\ncase there  is no valid reason to doubt them. In Shri N. Sri
\nKara Reddy  etc. v. Shri V.V. Giri (supra) referred to above
\na bench\t of five  learned Judges of this Court has held that
\nthe contemporaneous  dialogue  tape-recorded  in  that\tcase
\nformed part  of res  gestae and\t that  it  is  relevant\t and
\nadmissible under sections 7 and 8 of the Evidence Act. If it
\nis res\tgestae it  is  admissible  in  evidence\t even  under
\nsection 6  of the Evidence Act illustration 1 where of reads
\nthus:\n<\/p>\n
\t  “A is\t accused of  the murder\t of by\tbeating him.
\n\t  What ever  was said  or done\tby A or B or the by-
\n\t  standers at  the beating,  or so shortly before or
\n\t  after it  as to form part of the transaction, is a
\n\t  relevant fact.<\/p><\/blockquote>\n
     The following  passage in\tregard to  incidents forming
\npart of\t the res  gestae is  found in para 509 of Halsbury’s
\nLaws of England (Vol. 15) Third Edition:\n<\/p>\n
\t  “There are  many incidents,  however which, though
\n\t  not strictly\tconstituting a fact in issue may yet
\n\t  be regarded  as forming a part of it, in the sence
\n\t  that they closely accompany and explain that fact.
\n\t  In testifying\t to the\t matter in issue, therefore,
\n\t  witnesses must  state them  not  in  their  barest
\n\t  possible form,  but with  a reasonable fullness of
\n\t  detail and  circumstance (g). These constituent or
\n\t  accompanying incidents  are said  to be admissible
\n\t  as forming  part of  the res gestae (h). When they
\n\t  consist of declarations
\n477<\/span>
\n\t  accompanying an  act they  are  subject  to  three
\n\t  qualifi-\t cations;   (1)\t   they\t  must\t  be
\n\t  contemporaneous or almost contemporaneous with the
\n\t  fact in  issue and  must not\tbe made\t at such  an
\n\t  interval as  to allow\t of fabrication or to reduce
\n\t  them to  the mere  narrative of  a past  event (i)
\n\t  though this  is subject  to apparent exceptions in
\n\t  the case  of continuing  facts (k);  (2) they must
\n\t  relate to  and explain the act they accompany, and
\n\t  not independent facts prior or subsequent where to\n<\/p><\/blockquote>\n
\t  (i); and  (3) though\tadmissible to  explain, they
\n\t  are not  always taken as proof of the truth of the
\n\t  matters stated, that is, as hearsay (m).<\/p><\/blockquote>\n
     P.W. 7  has stated\t in his\t evidence that\tthe voice of
\nP.W. 8\twho was\t the Presiding\tOfficer\t at  kalaka  polling
\nstation is recorded in the tape, that the tape contains also
\nhe conversation\t of the\t alternate Presiding  Officer,\tRoop
\nChand (R.W.  1) and that the voice of the Constable Mohinder
\nSingh (R.W.  3) who  was on  duty at the polling station and
\nhad made a complaint to him is also recorded in the tape. It
\nis true\t that he  has admitted in his cross-examination that
\nhe cannot  identify  the  voice\t with  any  of\tthe  persons
\nmentioned by  him. The\ttranscript of  the tape\t (P.W.\t7\/1)
\nafter it had been recorded in a larger tape with the help of
\na  re sophisticated instrument in this Court was prepared by
\nthis Court  and some  portions thereof\thas been admitted by
\nR.W. 22\t to be\tin his\tvoice and  he has  recognised in the
\nlarger tape the voice of even P.W. 7 in some portions of the
\nconversation which  admittedly took  place between  him\t and
\nP.W. 7\tin the\toffice of  R.W. 10  at about  7.30  p.m.  On
\n19.5.1982. It  is seen from the transcript that some one had
\nanswered the  question about  what his\tname and number were
\nand that  one Mohinder\tSingh had  answered saying  that his
\nname and number were Mohinder Singh and 498 which tally with
\nthose of  R.W. 3.  In the  answer to question as to how many
\npersons came  inside the  polling station Mohinder Singh had
\nstated that  four persons  case inside\tand 20 or 30 persons
\nwere remaining\toutside and there were also 5 or 6 vehicles.
\nIn answer  to the  question whether  he\t had  seen  arms  or
\nammunitions in\tthe hands of those persons who stood outside
\nand of\tthose four  persons who\t entered the polling station
\nMohinder  Singh\t had  stated  that  perhaps  Colonel  Sahib,
\nreferring to the respondent, was armed with a gun while some
\npersons were  armed with swords and some 2 or 3 persons were
\narmed with  lathis. It is further seen that in answer to the
\nquestion as  to what  he was  and what was his name one Roop
\nChand informed\tthe question  that he  was Roop\t Chand and a
\nStenographer in\t the  Project  Office  of  the\tAgricultural
\nDepartment in Haryana. These particulars tally with those
\n478<\/span>
\nof R.W.\t 1. It\tis seen\t from the tape that P.W. 17 had also
\nanswered certain  questions saying  inter alia\tthat he\t was
\nAmar Singh,  polling agent of the Congress (I) candidate and
\nthat there  were 5 or o vehicles with a number of persons in
\nthem. It  is also  seen from the tape that during the course
\nof conversation\t between the  respondent and  P.W. 7  at the
\noffice of  P.W. 10  the fact  that P.W. 7 had gone to Kalaka
\npolling station\t immediately after the respondent and others
\nleft the  place and that he got the statements tape-recorded
\nthere was  mentioned by\t P.W. 7\t to the respondent. In these
\ncircumstances great  reliance has  to be  placed on the tape
\n(Ex.P.W. 7\/1) and is contents not only for corroborating the
\nevidence of  P.Ws. 7 and 8 to the extent they go but also as
\nres gestae  evidence of\t the first part of the incident. The
\nlearned trial Judge was not justified in rejecting the tape-
\nrecord (Ex.P.W. 7\/1) and the transcript (Ex.P-1). It must be
\nremembered that\t the respondent\t who had openly disowned any
\nart of\tthe tape  as containing\t his voice  and had,  on the
\nother hand,  gone to the extent of saying in the trial Court
\nthat it rather contained the voice of Rao Birendra Singh has
\nadmitted in this Court portions of that tape as being in his
\nvoice and  that he  has stated\tthat he\t cannot identify any
\nvoice other than those of himself and P.W. 7.\n<\/p>\n
     Coming now to Ex. P-2, P.W. 7 has stated in that report
\nthat around  10.30 a.m.\t when he  was proceeding  by his car
\nbetween Manodola and Zainabad villages he received a message
\non the\t4 police  wireless that\t in Rewari  Constituency the
\nCongress (J)  candidate had  complained that  about 50 to 60
\nCongress (I)  workers had  attacked his\t workers  in  Kalaka
\nvillage. He  immediately directed the Station House ‘Officer
\nof Sadar  Rewari to  rush to  the village.  At 11.35 a.m. he
\nreceived a  message on\tthe police  wire less that villagers
\nhad refused  to vote  in Kalaka\t alleging that\tCongress (J)
\nworkers had  polled  some  bogus  votes\t in  Kalaka  polling
\nstation. Therefore  he proceeded  to Kalaka  polling station
\nand interrogated  the  Presiding  Officer  and\tthe  polling
\nofficers  of   the  polling   station\tand   recorded\t the
\nconversation in\t his tape-recorder.  When he  was told\tthat
\nCongress (J)  workers came  into  the  polling\tstation\t and
\nsnatched ballot\t papers from  the polling  staff and  polled
\nthem in\t favour of  the respondent,  he advised\t the polling
\nofficer to  accept tendered  votes from the electors if they
\ncame to\t the polling  station for  voting and  he thereafter
\nwent to\t Burthal Jat.  This report  submitted by P.W. 7 some
\ntime  after   the  results   of\t the   poll  were  announced
\ncorroborates the evidence of P.W. 7 about what he did at the
\npolling h  station soon\t after he went there on receipt of a
\nwireless message  about the polling of bogus votes in favour
\nof the respondent.\n<\/p>\n
479<\/span><\/p>\n
     With  respect   to\t the  office  which  he\t holds,\t the
\nrespondent, as\ta party\t and  his  own\twitness,  is  wholly
\nunreliable. In\this written statement he had vaguely alleged
\nthat the  men of  Rao birendra\tSingh captured\tthe booth at
\nKalaka aud  the supporters and voters of the respondent were
\nbadly  out-manoeuvred  and  that  the  said  fact  could  be
\ngathered  from\tthe  fact  that\t whereas  Sumitra  Devi\t had
\nobtained 484  votes he\thad obtained  only 53  votes in that
\npolling station. The only suggestion made to P.Ws. 12 and 17
\nwho have  denied it  is that  Ajit Singh  visited the Kalaka
\npolling station.  No suggestion\t was  made  to\tany  of\t the
\nwitnesses examined  on the  side of  the appellants  in\t the
\ncross-examination that Ajit Singh came armed with some armed
\ncompanions and beat R.W. 5 and Tula Ram and dragged them out
\nand that  they forcibly\t polled bogus votes. Such a case was
\nprojected  by  the  respondent\tonly  after  the  respondent
\nstarted to  let in  oral evidence  on  his  side  after\t the
\nappellants   had    closed   their    evidence.\t  In   these
\ncircumstances, when questioned as to why he had not made any
\ncomplaint naming Ajit Singh specifically for the incident at
\nKalaka R.W.  22 has  stated in\this evidence  that it is not
\nbecause such  an incident  never happened  but\tbecause\t the
\npicture was  not clear\tat that\t time. It  is impossible  to
\naccept this  explanation of  R.W. 22,  for the\tpolling took
\nplace on  19.5.1982 and\t the respondent\t filed\this  written
\nstatement  in  the  election  petition\tlong  thereafter  on
\n14.9.1982. If, as the respondent would have it, Tula Ram and
\nR.W. 5\tcame to\t his residence\tat Rewari  in the morning of
\n19.5.1982 and  informed him about the incident at the Kalaka
\npolling station and there after he went there and complained
\nto P.W.\t 8 about  it, he  should have come to know about the
\ndetails\t of   the  incident  before  he\t filed\this  written
\nstatement long\tthereafter on  1.9.1982. If by 14.9.1982 the
\npicture of  what happened  at  the  Kalaka  polling  station
\n19.5.1982 was  not clear  it is\t not known how it would have
\nbecome clear only after appellants had closed their evidence
\nand just before the respondent began to let in oral evidence
\non his\tside. Therefore,  the explanation  of R.W.22 that he
\nhad not\t named Ajit  Singh specifically\t in relation  to the
\nincident at  the Kalaka polling station not because it never
\nhappened in  the manner\t stated by his witnesses but because
\nthe picture was not clear at that time cannot be accepted at
\nall.\n<\/p>\n
     R.W. 22  had stoutly denied in the trial Court that the
\ntape record  (Ex. P.W.\t7\/1) contained\this voice  but added
\nthat it is rather the voice of Rao Birendra Singh. But after
\nthe tape  was recorded\twith the aid of a more sophisticated
\ninstrument by  playing it  in this  Court in the presence of
\nthe respondent in the
\n480<\/span>
\noffice and also in the open Court, R.W. 22 has admitted some
\nportions of  his conversation  with R.W.  7 in the office of
\nP.W. 10\t at about  7 or 7.30 a.m. On 19.5.1982. In the cross
\nexamination made  in this  Court after R.W. 22 had heard the
\nre-recorded larger  tape being\tplayed in  the Court R.W. 22
\nhas stated  that he  could not\trecognise the  voice of\t any
\nperson in  the tape other than\tthose of himself and P.W. 7.
\nIf the\ttape used  by P.W.  7 for recording the conversation
\ncould not  be followed\tand understood\tclearly when  it was
\nplayed in  the trial  court with the very same instrument by
\nwhich it  was recorded what R.W. 22 could have said was that
\nhe cannot say whether it contains his voice but he could not
\nhave gone  to the  extent of saying that it does not contain
\nhis voice  but it  rather contains the voice of Rao Birendra
\nSingh. This  also shows\t that the evidence of R.W. 22 is not
\nreliable.\n<\/p>\n
     In his  cross examination\tin this\t Court R.W.  22\t has
\nstated that  he was  the Speaker  of the Haryana Legislative
\nAssembly until\tthe new\t Legislative Assembly  met after the
\nelections in May, 1982 and could therefore have summoned any
\nofficer to  his office\tand he\tdid not\t go  to\t the  police
\nstation on 19.5.1982 and he is quite  positive about it. But
\nin the\tlater portion  of his  evidence in this Court he has
\nstated that  not only his admission of the transcript of the
\ntape (Ex.  P-l) to  the effect\tthat he\t went to  the police
\nstation but also his written statement that he did not go to
\nthe police station on 19.5.1982 are both correct and that he
\nwould emphasize\t that he did not go to the police station at
\nall on\tthat day. He has also stated that although the voice
\nin the tape says that he went to the police station and that
\nvoice appears  to be  his own  voice he\t did not  go to\t the
\npolice station\tbecause he  was the  Speaker of\t the Haryana
\nLegislative Assembly on that day and could have summoned any
\npolice officer\tto  his\t office.  However,  it\tis  his\t own
\nevidence that  he did  go to  the office  of P.W. 10 to meet
\nP.W. 7 at about 7 or 7.30 p.m. On 19.5.1982. This also shows
\nthat the evidence of R.W. 22 is not reliable.\n<\/p>\n
     R.W. 22  has admitted  the voice  in the tape that when
\nP.W. 7\tasked him  about when  he received the message about
\nthe incident   at  the Kalaka polling station he answered by
\nsaying that it was about 11.30 a.m. and that it is correctly
\nrecorded in  the tape.\tIt is  seen from the transcript that
\nthe respondent\thad stated  in\tthat  conversation  that  he
\nthereafter went to the Kalaka polling station and questioned
\nhis men\t as to\twhether they  were not\tashamed that  two or
\nthree ‘chaps’  belonging to  the  same\tvillage\t   had\tbeen
\nbeaten. However, he would say in his evidence that he
\n481<\/span>
\nwent to\t Kalaka only once on 19.5.1982 and that it was about
\n9 or  9.30 a.m.\t There is abundant unimpeachable evidence on
\nthe side  of the  appellants to\t show that  the\t respondent,
\narmed  with   a\t rifle,\t  visited  Kalaka   polling  station
\naccompanied by\tsome armed persons at about 11.30 a.m. or 12
\nnoon, and indulged in the polling of bogus votes. P.W. 7 had
\nstated in  the course of his tape recorded conversation with
\nthe respondent\tin the\toffice of  P.W 10 at about 7 or 7.30
\np.m. on\t 19.5.1982 that\t he visited  Kalaka polling  station
\nsoon after  the respondent  had left that place. R.W. 22 has
\nadmitted in  his cross\texamination in\tthis Court  that the
\nstatement of  P.W. 7  that he  was there at about 12 noon or
\n12.05 p.m.  refers to Kalaka polling station and that P.W. 7
\ntold him  that the  Presiding Officer  told him\t a different
\nstory about  the incident  which took  place in that polling
\nstation. It  is, therefore,  clear that\t the respondent\t has
\nattempted to  make a  futile effort  to show that he visited
\nthe Kalaka  polling station  with R.W.\t5 and others only at
\nabout 9 or 9.30 a.m. On 19.5.1982 and not at the time of the
\nfirst part of the incident alleged by the appellants.\n<\/p>\n
     The written statement is silent on the question whether
\nthe respondent\tvisited Kalaka\tpolling station on 19.5.1982
\nexcept\ta   mere  denial.   The\t respondent   unsuccessfully
\nattempted to file an additional or amended written statement
\nto the effect inter alia that he had decided not to move out
\nof his house and had not gone out of his house on 19.5.1982.
\nThis portion  of the additional or amended written statement
\nwhich had  not been  received by the Court was put to him in
\ncross examination  by Mr.  Sibbal. R.W.\t 22 has\t stated that
\nthere appears to be a typing error in that statement that he
\ndid not\t move out  of his house on that day and that what he
\nmeant to  say was  that as a consequence of the assurance of
\nhis supporters\tthat he\t was going  to succeed he acceded to
\ntheir wish  and had  decided not to move out of his house on
\nthat day.  He would  say that  he did  not read that amended
\nwritten statement  and had  no sufficient  time to  read  it
\nproperly but  that he  did not give specific instructions to
\nhis counsel  on that  matter and  was told by his supporters
\nnot to\tmove out of his house on 19.5.1982 and that the fact
\nthat he went to Kalaka village on 19.5.1982 is not mentioned
\nin that amended written statement though inspite of deciding
\nnot to move out of his house on that day he did go to Kalaka
\nvillage on  that day.  This also  shows that the evidence of
\nR.W. 22 is not reliable.\n<\/p>\n
     In the  election petition\tit is alleged in relation to
\nthe incident  at the  Burthal Jat  polling station that Anil
\nKumar and  Satbir Singh are the relatives of the respondent.
\nThere is no
\n482<\/span>
\ndenial much less any spefic denial of this allegation in the
\nwritten statement  of the respondent though it is a material
\nfact which  ought to have been denied specifically if it was
\nnot admitted. Therefore, under 0.8 r. 5 of the Code of Civil
\nProcedure which applies to proceedings in election petitions
\nit must\t be deemed  to have been admitted by the respondent.
\nOrder 8 rule 5\treads:\n<\/p>\n
\t  Every allegation  of fact  in the  plaint, if\t not
\n\t  denied specifically  or by  necessary implication,
\n\t  or stated  to be  not admitted  in the pleading of
\n\t  the defendant,  shall\t be  taken  to\tbe  admitted
\n\t  except  as  against  a  person  under\t disability.
\n\t  Provided that\t the Court  may\t in  its  discretion
\n\t  require  any\t fact  so   admitted  to  be  proved
\n\t  otherwise than by such admission.\n<\/p><\/blockquote>\n
But during the trial R.W. 22 had repeatedly denied that Anil
\nKumar and Satbir Singh were in any way related to him though
\nin a  portion of his evidence he would say that satbir Singh
\nis the\tadopted son  of Jagmal Singh, father of his wife who
\nwas divorced  in 1962  and that\t he does  not known  if Anil
\nKumar is  the brother  of his brother-in-law, Surinder Kumar
\nand he could not deny or admit that he is the brother of his
\nbrother-in-law, Surinder  Kumar as Surinder Kumar has 6 or 7
\nbrothers. He  has stated  that he does not know whether Anil
\nKumar and Satbir Singh are the two persons who were arrested
\nin Burthal  Jat village\t on  19.5.1982\tfor  offences  under
\nsection 107  and 151  of the  Code of Criminal Procedure and
\nthat he had not exhibited grave concern about Anil Kumar and
\nSatbir Singh  in the  course of his conversation with P.W. 7
\nin the\toffice of  P.W. 10 at 7 or 7.30 p.m. On 19.5.1982 or
\ntold P.W.  7 that  they were his relatives. But in his cross
\nexamination in\tthis Court  he has  admitted that Anil Kumar
\nand Satbir  Singh had  been arrested  by the  police at\t the
\ninstance of  P.W. 7  at the  burthal Jat  polling station on
\n19.5.1982 and  that he had referred to them as his relations
\nonly because  P.W. 7  had not taken any steps inspite of his
\nrepeated representation in regard to the arrest of those two
\npersons. It  is not  possible to accept the evidence of R.W.
\n22 that\t because no  steps were\t taken\tby  P.W.  7  on\t his
\nrepeated requests  for the  release of Anil Kumar and Satbir
\nSingh he told P.W. 7 that they were his close relatives, for
\nhe had\tadmitted in his evidence in this Court that he would
\nhave left no stone unturned if his partymen and workers were
\nharassed even  though they  may not  be\t his  relatives.  It
\nappears from this portion of the evidence of R.W. 22 that it
\nwould have been unnecessary for him to claim Anil Kumar and
\n483<\/span>
\nSatbir Singh  to be  his close\trelatives merely  to prevent
\nthem from being harassed by the police after their arrest on
\nA 19.5.1982.  He has  stated in\t his evidence  in this Court
\nthat because  he was  told by  his workers  that two  of his
\nrelatives had been arrested and their identity was not clear
\nto him\twhen he\t had the  Conversation with  P.W. 7  in\t the
\noffice of  P.W. 10  on 19.5.1982. he referred to them in the
\ncourse of  his conversation  as his  relatives. He  has also
\nstated that  it is  only after\tP.W. 7 mentioned their names
\nand identity  that he  new that\t they were  Anil  kumar\t and
\nSatbir Singh  and that\tthey were  not his relatives. In the
\nsubsequent portion of his evidence he has stated that he had
\nnever deposed  in this\tCourt that P.W. 7 mentioned the name
\nof Anil Kumar to him. In an other portion of his evidence in
\ncross examination  in his  Court he  has admitted  that\t the
\nstatement in that conversation that he told P.W. 7 that Anil
\nKumar and  Satbir Singh were his relatives is correct. Thus,
\nit is  seen that  R.W.. 22 has given varying versions on the
\nquestion whether  Anil\tKumar  and  Satbir  Singh  were\t his
\nrelatives or not though he has admittedly informed P.W. 7 in
\nthe course  of his  conversation with  him in  the office of
\nP.W. 10\t on 19.5.1982  that they  were his  close relatives.
\nThis also  shows  that\tthe  evidence  of  R.W.\t 22  is\t not
\nreliable.\n<\/p>\n
     The evidence  of the  private witnesses examined by the
\nappellants to depose about the first part of the incident in
\nthe Kalaka  polling station  is fully  corroborated  by\t the
\nevidence of the Presiding Officer (P.W.8) and received ample
\ncorroboration from  the evidence  of P.Ws.  7 and  10. Their
\nevidence is corroborated by the reliable and contemporaneous
\ndocumentary evidence  by way  of Exs.  P-5, P-6 and the tape
\nrecord Ex.  P.W.7\/1 which are unimpeachable and also by what
\nhas been  stated by P.W. 7 in his report (Ex. P-2) submitted
\nby him\tto the Government some time after the results of the
\nelection held  in May  1982  were  announced.  Therefore,  I
\nreject\tthe   evidence\tof  the\t respondent  and  the  other
\nwitnesses who  have deposed  on his  side in  regard to this
\npart of\t the incident  in the  Kalaka  polling\tstation\t and
\naccept the  evidence of\t P.W. 8\t and the other witnesses who
\nhave deposed  about the\t same on  the side of the appellants
\nelection petitioners  and  hold\t that  the  appellants\thave
\nproved satisfactorily  and beyond reasonable doubt the first
\npart of\t the incident in Kalaka polling station, namely that
\nthe respondent\twent armed  with  a  rifle  with  25  or  30
\ncompanions and entered the polling station with 4 or 5 armed
\ncompanions and threatened the Presiding Officer (P.W. 8) and
\nothers including  the polling agents who were present in the
\npolling station\t with the  use of  force and got some ballot
\npapers marked in favour of the respondent polled forcibly by
\nhis
\n484<\/span>
\ncompanions in  the ballot box and that they left the polling
\nstation\t on  seeing  the  villagers  of\t Kalaka\t and  police
\npersonnel coming  towards the  Kalaka polling station. There
\nis no  doubt that  there is some discrepancy in the evidence
\nregarding the time of the incident. But it is not a material
\ndiscrepancy.\n<\/p>\n
     I shall  now consider  the\t evidence  relating  to\t the
\nsecond part of the incident at the Kalaka polling station.\n<\/p>\n
     Mr. Sibbal\t did not  press the  case of  the appellants
\nregarding the  second part  of the  incident at\t the  Kalaka
\npolling station\t in his\t principal argument  but he  pressed
\nthat portion of the appellants’ case after Mr. Rao contended
\nin the\tcourse of  his argument that what is alleged to have
\nhappened inside\t the polling station, even if true, will not
\nconstitute any\tcorrupt practice but would amount only to an
\nelectoral offence.  Regarding this part of the case there is
\nthe evidence  of Tara Chand (P.W. 12), Sheo Chand (P.W. 13),
\nPuran (P.W.  14), Inder\t Singh (P.W.  16) and  Mangal  Singh
\n(P.W. 18),  on the  side of the appellants. Gur Dial who has
\nbeen referred to in the election petition in this connection
\nwas tendered as P.W. 15 for cross-examination but he has not
\nbeen  cross-examined   by  the\t learned  counsel   for\t the
\nrespondent. P.W.  12 who  was one  of the  electors and\t the
\npolling agent  of Sumitra  Bai in the election with which we
\nare concerned  at the Kalaka polling station has stated that
\nwhen he\t was arranging\tthe electors to stand in a queue for
\nthe purpose  of voting, the respondent came there with 60 or
\n70 persons  at about 10.30 a.m., The respondent armed with a
\ngun while  some of  his companions  were armed\twith swords,
\npistols\t and  sticks.  The  respondent\tand  his  companions
\nthreatened PWs.\t 14,15,17 and others including Kesar Lal who
\nhad come  to the  polling station for the purpose of casting
\ntheir votes  and asked\tthem to\t go away from there and they
\nconsequently ran away from the polling station. Amongst the
\n respondent’s  companions who did so P.W. 12 knows only Desh
\nRaj Krishan  Lal and  Ram Krishan  (R.W. 5)  of\t Kalaka\t and
\nBalbir Singh,  Raghubir Singh  and Umrao  Singh. P.W. 12 has
\nnot been seriously examined on this portion of his evidence.
\nWhat has  been elicited\t in his cross-examination is that he
\nwas the polling agent of Congress (I) candidates even in the
\nearlier elections and he had  convassed for the Congress (I)
\ncandidate in  the election with which we are concerned for 5
\nor 10  days and\t that he  reported to  the police  after the
\ncompletion of  the poll\t but the  police did  not  send\t for
\nanybody on that complaint.\n<\/p>\n
     P.W. 13  has stated  that when  he was  standing in the
\nqueue awaiting\this turn for casting his vote after reaching
\nKalaka
\n485<\/span>
\npolling station\t at about  10 a.m. the respondent came there
\nat  about 10 a.m. alongwith 50 or 60 persons in two or three
\nvehicles  namely,   a  truck   and  two\t motor\tcycles.\t The
\nrespondent  was\t armed\twith  a\t gun  while  his  companions
\nincluding Desh\tRaj, Krishan  Lal and  Ram Krishan  (R.W. 5)
\nwere armed  with swords, rifles and lathis. Lambardar Ishwar
\n(P.W. 16),  Puran (P.W.\t 14),  Ram  Singh  and\tothers\twere
\nstanding  in   the  queue   at\tthat  time.  The  respondent
\nthreatened P.W.\t 13 and\t others saying that they cannot cast
\ntheir votes  and he  asked them\t to go\taway under threat of
\nbeing beaten  and shot,\t and out  of fear P.W. 13 and others
\nwho were  standing in  the  queue  ran\taway.  It  has\tbeen
\nelicited in his cross-examination that he came back and cast
\nhis vote at 2 p.m. and that he cannot say whether the others
\nwho were in the queue and had run away had come again or not
\nfor casting their votes.\n<\/p>\n
     P.W. 14  has stated  that he  had gone  to the  polling
\nstation at  about 10 or 11 a.m. for casting his vote and was
\nstanding in  the queue alongwith others. The respondent came
\nthere armed  with a  gun, accompanied  by 50  or 60  persons
\nincluding Desh\tRaj, Krishan  Lal, Balbir Singh, Ram Krishan
\n(R.W. 5)  and a\t Sikharmed with\t a kirpan.. The respondent’s
\ncompanions created a commotion and the respondent threatened
\nP.W. 17 and others who were in the queue to run away on pain
\nof being  killed otherwise  and out  of fear all the persons
\nwho were  in the queue ran away. In his cross-examination he
\nhas stated  that about 15 or 20 persons were standing in the
\nqueue when  the respondent and his companions arrived at the
\npolling station\t and that  he cast his vote later at about 3
\np.m. after  calm prevailed  all around.\t He has\t denied\t the
\nsuggestion that he had given false evidence being a Congress
\n(I) worker.\n<\/p>\n
     Ishwar Singh  (P.W. 16) the Lambardar of Kalaka village
\nhas stated that when he was standing in the queue along with
\n14 or 15 persons at about 10 or 10.30 a.m. awaiting his turn
\nfor casting  his vote the respondent came there, accompanied
\nby 3  or 4  persons including Desh Raj and Krishan Lal (R.W.\n<\/p>\n
6) of  his village and threatened to kill him and he was hit
\nwith the  butt of  a gun  by one  of the  companions of\t the
\nrespondent and\the ran\taway. He  has also stated that P.Ws.
\n13,14,15 and  17 were  also standing  in the queue alongwith
\nhim and\t that after  he informed  the people  of the village
\nthat the  respondent had  come and threatened him the people
\nof the\tvillage\t collected  and\t came  towards\tthe  polling
\nstation whereupon  respondent and  his companions  ran\taway
\nleaving\t behind\t  two  motor-cycles  by\t which\trespondent’s
\ncompanions had come there. There is abundant evidence on the
\nside of the appellants,
\n486<\/span>
\nreferred to  above, to\tshow that  when\t P.W.  7  and  other
\nofficials arrived  after the  incident in  and at the Kalaka
\npolling station\t they found  two motor-cycles  abandoned  at
\nthat place.  P.W. 16  has denied  the suggestion that he has
\ndeposed falsely\t being the  supporter of  the  Congress\t (I)
\nparty.\n<\/p>\n
     P.W. 18  has stated  that when  he\t was  inside  Kalaka
\npolling station\t and  his  particulars\twere  being  checked
\nbefore he could be allowed to vote the respondent came there
\nand that  20 or\t 25 persons  were standing  in the queue ran
\naway. He  has admitted\tin his cross-examination that he had
\ncanvassed for  the Congress  (I) party\tbut has\t denied\t the
\nsuggestion that\t he has always been helping the Congress (I)
\ncandidates and\thas given  false evidence on account of that
\nreason.\n<\/p>\n
     This is  all the  oral evidence  on  the  side  of\t the
\nappellants regarding tho respondent threatening electors who
\nwere standing  in the  queue at\t the Kalaka  polling station
\nawaiting their\tturn for  casting their votes in the morning
\non 19.5.1982  and scaring them away under threat of violence
\nagainst\t their\tperson\tand  thereby  preventing  them\tfrom
\nexercising their  electoral right.  The evidence on the side
\nof  the\t respondent  has  been\treferred  to  above  in\t the
\ndiscussion relating to the first part of the incident at the
\nKalaka\tpolling\t station  and  has  been  found\t to  be\t not
\nreliable. It  has been\tfound earlier  that the\t evidence of
\nR.W. 22\t and his  witnesses that  R.W.\t22  went  to  Kalaka
\npolling station\t by a car with some of his men only at about
\n9 or  9.30 a.m.\t On 19.5.1982 could not be accepted and that
\nthe respondent\thad received information at about 10.30 a.m.
\nabout some  Congress  (J)  workers  having  been  beaten  by
\nCongress (I)  workers in  Kalaka,  which  message  had\tbeen
\nflashed by the police wireless and received by P.W. 7 and he
\nwent there  only thereafter. There is unimpeachable evidence
\non the\tside  of  the  appellants  to  show  that  when\t the
\nrespondent went\t inside Kalaka\tpolling station\t he was in a
\nrage. In  these circumstances,\tit is probable that while in
\nsuch a\tmood after  receipt of\tsome report that his workers
\nwere beaten  by Congress (I) workers he went there and asked
\nhis men\t whether they were not ashamed about 2 or 3 of their
\nmen of\tthe same  village having  been beaten  and  that  he
\nthereafter indulged  in the  acts alleged  in  the  election
\npetition both  outside and  inside the\tpolling\t station  at
\nKalaka. P.W.  7 who  reached  Kalaka  polling  station\tsoon
\nthereafter received  oral report  about the  detention of  a
\nmotor cycle  belonging to  Congress (J)\t workers.  In  these
\ncircumstances, 1  accept the evidence of PWs. 12, 13, 16 and
\n18 referred  to above  and find\t that the respondent came to
\nthe
\n487<\/span>
\nKalaka polling\tstation at  about 10.30\t a.m. on  19.5.1982,
\narmed\twith a\trifle and accompanied by his companions some
\nof  whom   were\t armed\twith  deadly  weapons  and  that  he
\nthreatened the\telectors who  were  standing  in  the  queue
\nawaiting their\tturn for  casting their\t votes on account of
\nwhich they  ran away  and he  had thus\tinterfered with\t the
\nexercise of  the electoral  right of those persons. There is
\nsome discrepancy  in the  evidence about the time of arrival
\nof the\trespondent  and\t his  men.  It\tis  not\t a  material
\ndiscrepancy.\n<\/p>\n
     About the incident at Burthal Jat polling station there
\nis the\tevidence of  P.Ws. 7,  9 and  10  who  are  official
\nwitnesses and  of Mahabir  Singh (P.W. 26), Dharam Vir (P.W.\n<\/p>\n
27), Thavar  Singh S (P.W. 28), Amir Chand (P.W. 29), Surjit
\nSingh (P.W.  30), Raghubir  Singh (P.W.\t 31), Shamsher Singh
\n(P.W. 32),  Kishori Lal\t (P.W. 33), Ram Narain (P.W. 34) and
\nMam Chand  (P.W. 35) on the side of the appellants. There is
\nevidence of  Ravi Datt Sharma (R.W. 11), Parbhati (R.W. 12),
\nAmi Lal\t (R.W. 13),  Sheo Chand (R.W. 14) and the respondent
\n(R.W. 22) on the side of the respondent.\n<\/p>\n
     P.W. 26 of Burthal Jat village was the polling agent of
\nthe respondent\thimself and he had filed the form (Ex. P-16)
\ndated 18.5.1982\t for the same. He has stated in his evidence
\nthat he\t had gone  to the  polling station at 7 a.m. and had
\nnot seen  any incident\tat that place. It is clear that P.W.
\n26 was\tnot prepared to go the whole hog to support the case
\nof the appellants as regards the incident at the Burthal Jat
\npolling station\t but he\t has stated in his cross-examination
\nthat when  he went  to the polling station he saw Anil Kumar
\nand Satbir  Singh were\tcanvassing votes for their candidate
\nand that  he also  saw a jeep with sticks. The learned trial
\nJudge has  stated in  his judgment  that though the evidence
\nestablishes that Anil Kumar and Satbir Singh were canvassing
\nvotes for  their candidate lt is not known from the evidence
\nas to  who their  candidate was.  But lt  is clear  from the
\nevidence referred  to already  showing the  concern  of\t the
\nrespondent for\tAnil Kumar  and Satbir\tSingh who  had\tbeen
\narrested by  the police\t at the\t Burthal Jat polling station
\nthat the  candidate for\t whom they were canvassing could not
\nhave been  any\tother  than  the  respondent.  P.W.  26\t has
\nadmitted in  his cross-examination  that  Satbir  Singh\t was
\nknown to  him previously  and that  he (P.W. 26) was on duty
\ninside the polling station.\n<\/p>\n
     P.W. 27  of Burthal  Jat  village\thas  stated  in\t his
\nevidence that  he had gone to Burthal Jat polling station at
\n8 a.m.\tfor casting  his vote  in the  election held in May,
\n1982. The
\n488<\/span>
\nrespondent came\t there at  about 8 a.m. accompanied by 50 or
\n60 persons  and told  his polling  agents, Mahabir and Udhey
\nBhan that  he was  leaving some\t persons behind and he asked
\nthem to\t see that  no one  is  permitted  to  vote  for\t the
\nCongress (I)  candidate and  that they should ensure to have
\nmaximum votes  polled in his favour in that polling station.
\nThe respondent\tleft behind 15 or  16 persons including Anil
\nKumar and  Satbir Singh,  one of  them a  Sikh armed  with a
\nsword and  the others  with pistol  and sticks and the other
\npersons who  came with the respondent went away with him. In
\nhis cross-examination he has stated that the respondent came
\nto Burthal Jat polling station in a car while his companions
\ncame by\t a motor-cycle,\t a jeep\t and a truck. No doubt he is
\nunable to  mention the\tnumbers or colour of the vehicles or
\nthe colour of  the turban of the respondent’s Sikh companion
\nand he\thas stated  that he cannot identity Satbir Singh. He
\nhas denied  the suggestion  that he  is a  supporter of\t Rao
\nBirendra Singh\tand his\t sister and  that the respondent did
\nnot come to Burthal Jat polling station at all on that day.\n<\/p>\n
     P.W. 28  who belongs  to Burthal Jat village has stated
\nin his\tevidence that  after he\t went to the polling station
\nthe respondent\tcame there  accompanied 50  or 60 persons at
\nabout 8 a.m. The respondent was armed with a small gun while
\nhis companions\twere armed  with rifles,  ballas and sticks.
\nThe respondent\tcalled his  polling agents Mahabir and Udhey
\nBhan and told them that they should not permit even a single
\nvote to\t be cast in favour of the Congress (I) candidate and
\nhe was\tleaving behind Anil Kumar and Satbir Singh alongwith
\n15 or  20 persons  for their  help. The\t other\tpeople\tleft
\nbehind by  the respondent  were armed  with lathis.  He\t has
\nadmitted in  his cross-examination  that he  was the polling
\nagent of  Sumitra Devi but he has denied the suggestion that
\nthe respondent\tdid not\t go to the polling station at all on
\nthat day and that he has given false evidence.\n<\/p>\n
     P.W. 29  who belongs  to Burthal Jat village has stated
\nin his evidence that he went to the polling station at about
\n8 a.m.\tfor casting  his vote  in the election with which we
\nare concerned.\tThe  respondent\t accompanied  by  50  or  60
\npersons came  there at about 8 a.m. and sent for his polling
\nagents Mahabir\tand Udhey Bhan and told them they should not
\npermit\tanyone\tto  vote  in  favour  of  the  Congress\t (I)
\ncandidate. PWs.\t 27 and\t 28  and  many\tother  persons\twere
\npresent when  the respondent  said so.\tThe respondent\ttold
\nMahabir and Udhey Bhan that he was leaving behind Anil Kumar
\nand Satbir  Singh for  their help alongwith 15 or 20 persons
\nwho were found by P.W. 29 to be armed with sticks. P.W.\n<\/p>\n
489<\/span><\/p>\n
29 was\tnot permitted  to  cast\t his  vote  earlier  and  he
\ntherefore,   came again\t and cast  his vote at 3 p.m. He has
\nstated in  his cross-examination  that he  returned  to\t his
\nhouse after  8 a.m. Out of fear and went back to the polling
\nstation at 3 p.m. for casting his vote and stayed there till
\nthe  afternoon.\t He  has  denied  the  suggestion  that\t the
\nrespondent did not visit Burthal Jat polling station on that
\nday.\n<\/p>\n
     P.W. 30  who belongs  to Burthal Jat village has stated
\nin his evidence that he started to go to the polling station
\nat about  10.30 a.m.  for casting  his vote  in the election
\nwith which  we are  concerned.\tWhen  he  emerged  from\t his
\nvillage to  proceed to\tthe polling  station for casting his
\nvote Anil Kumar and Satbir Singh met him and asked him as to
\nwhom he was going to cast his vote and they insisted that he
\nshould vote for the respondent. On his refusal to do so Anil
\nKumar and  Satbir Singh\t threatened P.W.  30  when  2  or  3
\npersons armed  with  sticks  were  present  with  those\t two
\npersons and  he therefore  returned to his house. He went to
\nthe polling  station at about 3.30 p.m. for casting his vote
\nand learnt  that  Anil\tKumar  and  Satbir  Singh  had\tbeen
\narrested  by  the  police.  He\thas  stated  in\t his  cross-
\nexamination that  he does not know to which place Anil Kumar
\nand Satbir Singh belong and that when he came to the polling
\nstation later  at about\t 3 p.m.\t he was\t told that those two
\npersons were  Anil Kumar and Satbir Singh. He has denied the
\nsuggestion that\t he had\t been a\t supporter of  Rao  Birendra
\nSingh in  all the  elections and  that he  has\tgiven  false
\nevidence.\n<\/p>\n
     P.W. 31  who belongs  to Burthal Jat village has stated
\nin his\tevidence that when he went to the polling station at
\n11 a.m.\t for casting  his vote in the election with which we
\nare concerned he was accosted by Anil Kumar and Satbir Singh
\nwho were present there alongwith 20 or 30 persons armed with
\nsticks about  25 yards away from the boundary of the polling
\nstation and  they asked him as to the person for whom he was
\ngoing to cast his vote and they insisted that he should vote
\nfor the\t respondent and\t threatened him when he replied that
\nhe would  vote for  the candidate of his own choice. In view
\nof the threat he went back to the village and came later for
\ncasting his vote a, about 3. p.m. and learnt that Anil Kumar
\nand Satbir  Singh had been taken into custody by the police.
\nHe has\tadmitted in  his cross-examination  that he  did not
\ncomplain to  anybody about  the threat but he has denied the
\nsuggestion that he has given false evidence.\n<\/p>\n
     P.W. 32  is the Sarpanch of Burhtal Jat village. He was
\nadmittedly the\tpolling agent of Sumitra Devi. He has stated
\nin
\n490<\/span>
\nhis evidence that he went to Burthal Jat polling station for
\nthe second  time at  2.30 p.m.\tWhen he\t approached the main
\ngate of\t the polling  station he  met Anil  Kumar and Satbir
\nSingh and  they asked him to support the respondent and when
\nhe told\t them that  it was  open to  him  to  vote  for\t the
\ncandidate of  his own  choice there  was an  altercation and
\nthey started  beating him and he was rescued by P.Ws. 33, 35
\nand others  of his  village. Meanwhile,\t an  Assistant\tSub-
\nInspector of  police came  there by  jeep  and\tthey  hurled
\nabuses at  him even  in the  presence of  the Assistant Sub-
\nInspector  of  police  and  thereupon  that  police  officer
\narrested  Anil\tKumar  and  Satbir  Singh.  He\tsaw  a\tjeep
\ncontaining sticks  parked there,  and the people who were in
\nthe jeep  ran away when the police arrived. He brought these
\nfacts to  the notice  of P.Ws. 7 and 10 when they came there
\nand they  took the  jeep and  the sticks into their custody.
\nAnil Kumar was sitting on the motor-cycle while Satbir Singh
\nwas standing  on the  road-side when  they confronted him as
\nstated above and their motor-cycle was taken into custody by
\nthe police.  In his  cross-examination lt  has been elicited
\nthat he\t did not  report in writing to P.Ws. 7 and 10 or get
\nhimself medically  examined or\tfile any  complaint  in\t any
\nCourt against Anil Kumar and Satbir Singh. He has denied the
\nsuggestion that\t he had strained relations with Satbir Singh
\nbecause of his election to a cooperative society and that he
\nhas given false evidence because he was the polling agent of
\nSumitra Devi.\n<\/p>\n
     P.W. 33 who is the chowkidar of Burthal Jat village has
\nstated in  his evidence\t that when  he went  to the  polling
\nstation at about 2.30 or 3 p.m., during the last election to
\nthe Haryana  Legislative Assembly  he  saw  Anil  Kumar\t and
\nSatbir Singh  abusing and  beating  P.W.  32.  P.W.  33\t and
\nLambardar Mam  Chand (P.W.  35) and  another  Lambardar\t Ram
\nSingh and  others of  Burthal Jat  village separated P.W. 32
\nfrom Anil Kumar and Satbir Singh. Meanwhile, an
\n Assistant  Sub-Inspector of police came there, and about 10
\nor 15  other persons  who were\twith Anil  Kumar and  Satbir
\nSingh ran  away on  seeing the police after leaving behind a
\njeep and  a motorcycle\twhich were taken into custody by the
\npolice. P.W.  32 informed P.Ws. 7 and 10 about what happened
\nwhen  they  came  there\t some  time  later.  In\t his  cross-
\nexamination he\thas denied  that P.W.  32 was not present at
\nall at\tthe Burthal  Jat polling  station  but\twas  in\t his
\nvillage at  the time  of the poll. He has denied that he was
\nappointed as  Chowkidar by P.W. 32 and has stated that he is
\nChowkidar of  the village since 1982 and that P.W. 32 became
\nSarpanch of Burthal Jat village only recently. He has denied
\nthe suggestion\tthat no\t incident at  all took\tplace in the
\nvillage and  that he  had given\t false\tevidence  under\t the
\ninfluence of P.W. 32.\n<\/p>\n
491<\/span><\/p>\n
     P.W.34, the  Lambardar of Kakoria village situate close
\nto   Burthal Jat village, has stated in his evidence that he
\nwent to\t Burthal Jat polling station at about 2.30 or 3 p.m.
\nfor casting  his vote  in the  last election  to The Haryana
\nLegislative Assembly  and saw  Anil Kumar and & Satbir Singh
\nslapping and  fisting P.W.  32. He  and P.W.  35 and  others
\nintervened and\tseparated them.\t Some time thereafter a Sub-
\nInspector of police came and saw Anil Kumar and Satbir Singh
\nexchanging abuses  with P.W.  32 and  he arrested  those two
\npersons. P.Ws.\t7 and  10 who  came there  later talked with
\nAnil Kumar  and Satbir\tSingh. The police took a motor-cycle
\nand a  jeep which  was with Anil Kumar and Satbir Singh into
\ntheir custody.\tIn his\tcross-examination he has stated that
\nhe had\tnot meet  Anil Kumar and Satbir Singh previously and
\nthat he\t does not know the numbers of the jeep and the motor
\ncycle. He  has denied  the suggestion  that he had supported
\nRao Birendra Singh in the election to Parliament in 1980 and
\ndid not go to Burthal Jat village at all during the election
\nin question  and has  deposed falsely under the influence of
\nthe appellants.\n<\/p>\n
     PW 35  son of  Umrao Singh and Lambardar of Burthal Jat
\nvillage was  the polling  agent of the Bhartiya Janata Party
\ncandidate in  the last\telection of  the Haryana Legislative
\nAssembly. He  has stated  that after  he reached Burthal Jat
\npolling station at 7 a.m. the respondent came there at about
\n8 a.m.\taccompanied by\t50 or  60  persons  and\t called\t his
\npolling agents and told them that they should see to it that
\nthe Congress  (I) candidate  does not get votes and he added
\nthat he was leaving Anil Kumar and Satbir Singh and 15 other
\npersons for  their help.  At about  2.30 p.m. PW 35 saw Anil
\nKumar and  Satbir Singh\t beating PW  32 of  his village\t and
\nthereupon he  and PWs.\t33 and 34 separated them. Meanwhile,
\nan Assistant  sub-Inspector of\tpolice took  Anil Kumar\t and
\nSatbir Singh  into custody,  and 10  or 15  persons who were
\nleft behind  by the  respondent fled  on seeing\t the  police
\nleaving behind a motorcycle and a jeep containing sticks and
\nother weapons.\tPWs. 7 and 10 came there some time later and
\nthe motor-cycle\t and the jeep were taken into custody by the
\npolice. In  his cross-examination  he has denied that Ex.P-9
\nto which reference would be made a little later contains his
\nsignature and he has stated that there are two other persons
\nof his\tname and  one of  them is the son of Umrao Singh. He
\nhas  further   stated  in  his\tcross-examination  that\t the
\nrespondent told Anil Kumar and Satbir Singh that they should
\nsee to\tit that no other candidate except himself gets votes
\nin that\t polling station.  He has  denied that he had made a
\nfalse statement\t before PWs  7 and  10 and that he has given
\nfalse evidence being a member of the opposite faction.\n<\/p>\n
492<\/span><\/p>\n
     The Deputy\t Commissioner and  District Election Officer
\n(PW.7) has  stated in  his evidence that on the. day of poll
\nhe proceeded  from Kalaka  polling station  to\tBurhtal\t Jat
\npolling station pursuant to the receipt of` a complaint that
\na Congress(J)  worker  was  attacked  by  the  villagers  of
\nBurthal Jat.  The polling  officer of  Burthal\tJat  polling
\nstation told him when he visited that place that nothing had
\nhappened inside the polling station but some of the officers
\nin  the\t polling  station  told\t him  that  there  was\tsome
\nincidents outside  the polling\tstation though they were not
\nsure about  the identity  of the persons responsible for the
\nsame. Some  villages told PW 7 that Congress (J) workers had
\ncome in\t a jeep\t and tried to create trouble and that one of
\nthem ran  away while  the police  had detained\ttwo of those
\npersons. PW  7 interrogated  those two persons and they then
\ntold him  that they  had nothing  to do\t with the jeep whose
\nnumber he  has recorded\t in the\t tape Ex.PW  7\/1. PW 7 found
\nsome sticks  in the jeep and he asked the police to take the
\njeep and  the sticks  into their  custody.  Anil  Kumar\t and
\nSatbir Singh  who had  been attacked  by the  villagers were
\nfound detained\tby the\tpolice. The  Sarpanch of Burthal Jat
\nvillage (PW  32) made a complaint to him outside the Burthal
\nJat polling station. PW 7 recorded the conversation which he
\nhad with  the Presiding\t Officer at  the Burthal Jat polling
\nstation but some portion thereof was erased by his own voice
\nby inadvertence.  The respondent met PW 7 at about 7 p.m. in
\nthe office  of PW  10 and informed PW 7 about some incidents
\nwhich had  taken place\tduring the day and complained to him
\nabout  them.   The  conversation   which  he  had  with\t the
\nrespondent at  that time  was recorded simultaneously in the
\ntape (Ex.  PW 7\/1) and he later reported to the Secretary to
\nthe Government about the complaint which the respondent made
\nto  him\t  against  the\t Superintendent\t  of   Police.\t His
\nstenographer prepared  the transcript  Ex.P-1 in his office,
\nmost of\t it under  his supervision  and he  was\t temporarily
\nabsent to attend to some other work, and he compared it with
\nthe original  tape and\tfound it  to be\t correct. The  tape,
\ntape-recorder and  transcript remained\twith him  throughout
\nand were  not deposited\t by him in the record room and there
\nwas no possibility of tampering. He had not created evidence
\nin the\tform of\t the tape  at the  instance of\tRao Birendra
\nSingh to  harm the  respondent. Ex.P-2\tis the\tcopy of\t the
\nreport which  he submitted  about the  incidents which\ttook
\nplace on  19.5.1982 as had come to his notice. In his report
\nEx.P-2 sent  to the  Secretary to  the Government,  PW 7 has
\nstated inter  alia that\t when he went to Burthal Jat polling
\nstation from  Kalaka polling  station he was told that a few
\nworkers of  the Congress  (J) candidate had been detained by
\nthe villagers  and he  had conversation\t with the  Presiding
\nOfficer and
\n493<\/span>
\nthe villagers and found a jeep with about 15 or 20 lathis in
\nit  and directed the police to take the jeep with the lathis
\nas also\t the two  workers of  the Congress (J) candidate who
\nwere standing near the jeep into custody.\n<\/p>\n
     The  Returning   Officer  and  Sub-Divisional  Officer,
\nRewari (PW 10) who went to Burthal Jat polling station along
\nwith PW\t 7 has stated in his evidence that he saw Anil Kumar
\nand Satbir  Singh surrounded  by the  people of that village
\nand a jeep containing some sticks parked there and that Anil
\nKumar and  Satbir Singh and the jeep were taken into custody
\nby the\tpolice under  the orders  of PW\t 7. He\thas  further
\nstated that  Ex.P-9 was\t handed over to him by one Mam Chand
\nof Burthal  Jat village on that day. As stated earlier PW 35
\nwho is\tMam Chand  son of Umrao Singh of Burthal Jat village
\nhas disowned  Ex.P-9. In  his cross-examination\t PW  10\t has
\ndenied that  he had  discriminated  between  the  candidates
\nwhile disposing\t of the\t complaints about Kalaka and Burthal
\nJat polling stations. Ex.P-9 addressed by Mam Chand to PW 10
\nis to  the effect that the respondent pointed out his gun at
\nthe Presiding  Officer and  other  persons  in\tBurthal\t Jat
\npolling station after he came there at about 1.30 p.m. along
\nwith 65\t or 70\tpersons and he ordered for the ballot papers
\nbeing marked  with the\tsymbol of scales and put into ballot
\nboxes and  to finish off anybody who interferes and that the
\nwhole village was terrorised and they were thereby prevented
\nfrom exercising\t their electoral right. There is no specific
\nreference in  this report  to Anil Kumar and Satbir Singh or
\nto their arrest by the police at the instance of PW 7. Ex.P-
\n9 which\t was found  in the  file summoned from the office of
\nthe Sub-Divisional  Officer, Rewari  had  been\tmarked\tonly
\nthrough PW 10 and has been disowned by PW 35 who is no doubt
\nMam Chand son of Umrao Singh. For want of proof Ex.P-9 could
\nnot be taken into consideration, but the learned Trial Judge
\nhas relied  very heavily upon that document for disbelieving
\nthe appellants’\t case regarding\t the incident at Burthal Jat
\npolling station. He was not justified in doing so.\n<\/p>\n
     The Assistant  Sub-Inspector of  police (PW  9) who had
\nbeen posted at Sadar Rewari police station has stated in his
\nevidence that  at the  instance of  Assistant  Sub-Inspector
\nJagan Nath  who returned  to the police station at 3.30 p.m.
\non 19.5.1982 he recorded a Daily Diary Report of which Ex.P-
\n8 is  a copy  and that\tEx.P-8 is  a  correct  copy  of\t the
\noriginal report.  It is\t mentioned in Ex.P-8 that Anil Kumar
\nand Satbir  Singh of  Kutubpur and  Dulana respectively were
\nabusing\t and   beating\tSarpanch   Shamsher  Singh  (PW\t 32)
\nwhereupon an Assistant Sub-Inspector of police
\n494<\/span>
\nalong with  other intervened  and separated  them, that Anil
\nKumar and  Satbir Singh\t were creating a situation of breach
\nof peace  ant were  therefore taken  into police custody and
\nthat the  jeep bearing registration number DED-3203 was also
\ntaken into  police custody. PW 9 has not been cross-examined
\nregarding Ex.P-8.  Ex.P-28 is  a copy of the judgment in the
\ncase registered\t in the\t concerned FIR\tNo.104 of 1982 dated
\n19.5.1982 under\t sections 107  and 151\tof Code\t of Criminal
\nProcedure against  Anil Kumar  and Satbir  Singh. It is seen
\nfrom that judgment that the Magistrate after considering the
\ncircumstances of  the case and hearing Anil Kumar and Satbir
\nSingh had  come to  the conclusion that the fight took place
\nbetween those two accused and the Sarpanch Shamsher Singh in
\nconnection with\t polling of  votes  and\t that  the  incident
\npursuant to  which the\tfight took  place was  over and\t the
\naccused persons\t belonged to different villages and there is
\nno likelihood  of breach of the peace and therefore there is
\nno necessity  to take any further action against them and he
\naccordingly discharged\tthem. Ex.P-27 is a certified copy of
\nthe calender  dated 19.5.1982 relation to that criminal case
\nregistered by the police. Exs.P-27 and P-28 were tendered by
\nthe learned  counsel who  appeared for the respondent in the
\ntrial court.  That  calender  contains\tallegations  to\t the
\neffect that  the Assistant  Sub-Inspector of police with the
\nhelp of\t Kalyan Singh  separated PW  32 from  Anil Kumar and
\nSatbir Singh and stopped the fighting, that the complaint of
\nPW 32  was that\t when he  was going  to cast  his  vote\t two
\npersons riding\ton a motor-cycle came there and asked him to
\nvote in\t favour of  the respondent,  that when\the told them
\nthat he\t would cast  his vote  for the\tcandidate of his own
\nchoice they assaulted him with danda and gave him slaps, and
\nthat during the investigation the Assistant Sub-Inspector of
\npolice found  that those  two persons were present there for
\nprocuring votes\t for the  respondent. It was not disputed by
\nMr. Rao in this Court that though the complaint on the basis
\nof which  FIR No. 104 of 1982 had been registered may not be
\nadmissible in  evidence in the absence of any foundation for
\nletting in secondary evidence FIR No. 104 of 1982 registered
\nby PW  9 would\tbe admissible  in evidence. It shows that on
\nthe complaint to the effect that Anil Kumar and Satbir Singh
\nwere abusing  and beating PW 32 and they were separated from
\nPW 32  by and Assistant Sub-Inspector of police and others a
\ncase under  sections 107  and 151  of the  Code of  Criminal
\nProcedure was  registered against  them and  a jeep  bearing
\nnumber DED-3203 was also taken into custody by the police on
\n19.5.1982,  and\t it  is\t admissible  in\t evidence.  The\t FIR
\ncorroborates the  evidence of PW 32 and of some of the other
\nwitnesses referred  to above  who have\tdeposed\t about\tthis
\nincident.\n<\/p>\n
495<\/span><\/p>\n
     On the  other hand,  RW  11  a  lecturer  in  a  Higher
\nSecondary School  at Rewari  who was  a\t polling  office  at
\nBurthal Jat  polling station  during the election with which
\nwe are concerned has stated in his evidence that no untoward
\nincident of  any type took place and that the respondent did
\nnot visit  that polling\t station on that day. In view of the
\ndocumentary evidence and the other oral evidence referred to
\nabove which  show that\ton incident  did take  place outside
\nBurthal Jat  polling station and that a jeep containing some
\nlathis as also Anil Kumar and & Satbir Singh were taken into
\ncustody and  those two\tpersons were  prosecuted in  a\tcase
\nregistered against  them under\tsection 107  and 151  of the
\nCode of\t Criminal Procedure it is not possible to accept the
\nevidence of  RW 11  that no incident took place and that the
\nrespondent did\tnot go to Burthal Jat polling station at all
\non 19.5.1982.  It must also be noted that KW 11 has admitted
\nin his\tcross-examination that\the could not have known that
\nhappened outside  the polling station because he was inside.
\nRW 12  who cast his vote in Burthal Jat polling station at 8
\na.m. claims  to have  remained at  the polling\tstation till
\nabout 1.30  or 2  p.m. and  he has  stated that\t neither the
\nrespondent nor\tanyone on  his behalf  came to\tthe  polling
\nstation and  there was no quarrel inside or near the polling
\nstation\t so   long  as\t he  remained\tthere.\tBut  in\t his
\nexamination-in-chief itself  he has  admitted that PW 32 was
\nstanding about\t80 kadams away from the polling station with
\nsome people  and he  heard some altercation between them and
\nthat  while   the  altercation\twas  going  on\tsome  police
\npersonnel arrived  at the  spot and  removed two persons who
\nwere not  known to  him. He has further stated in his cross-
\nexamination that there was a jeep a, some distance away from
\nwhere the  Sarpanch  (PW  32)  and  the\t other\tpersons\t had
\naltercation. He\t has no\t doubt denied the suggestion that 10
\nor 15  other persons were with those two unknown persons and
\nthey were  armed with sticks, that the respondent came there
\nand left those 15 or 20 persons along with those two unknown
\npersons and  that those\t two unknown persons threatened many
\npeople as a result of which they could not cast their votes.
\nRW 13 who went to Burthal Jat polling station at about 10.45
\na.m. for  casting his  vote and\t cast his  vote at that time
\nclaims to  have stayed there along with some villagers until
\nabout 4\t p.m. Though  he has  stated in\t a  portion  of\t his
\nexamination-in-chief that  no incident took place with in or
\noutside the  polling station 80 long as he remained where he
\nhad admitted  in his examination-in-chief itself that he saw
\nPW 32  having a\t dispute with  two unknown persons about 120
\nkadams away  as also  a jeep  parked 80 kadams away from the
\npolling station\t and that  he heard  people saying  that the
\nSuperintend of Police removed these two
\n496<\/span>
\nunknown persons. No doubt, he has denied that Anil Kumar and
\nSatbir Singh  were threatening\tthe electors  in the village
\nand that  he has given false evidence on account of pressure
\nfrom the  respondent. RW 14 who cast his vote at Burthal Jat
\npolling station\t at 7.30  a.m. claims to have thereafter set
\nunder a tree by the road-side about half a furlong away from
\nthe polling  station. He  has stated that he did not see the
\nrespondent passing  by that road in the direction of Burthal
\nJat village.  His evidence  is not  helpful to either of the
\nparties as  he has  merely stated  that he  had not seen the
\nrespondent passing  by that road in the direction of Burthal
\nJat village.  It is  not possible that he would have closely
\nlooked into each and every vehicle which passed by that road
\nto notice  the respondent who appears to have been moving on
\nthat day  by his car. RW 22 has stated that he did not go to
\nBurthal Jat  village or\t send anyone  of his workers to that
\nvillage on 19.5.1982 but he remained in his house throughout
\nafter he  returned from\t kalaka\t on  that  day.\t It  is\t not
\npossible to  accept his evidence that he had not sent any of
\nhis workers to Burthal Jat village on the date of poll as it
\nis unlikely  that the  candidate contesting  in the election
\nwould not  have sent  any of  his workers  to  that  polling
\nstation.  It   is  seen\t from  the  aforesaid  tape-recorded
\nconversation between  PW 7  and RW 22 in the office of PW 10
\nat about  7 or\t7.30 p.m.  On 19.5.1982\t that the respondent
\nexpressed his  anxiety to  get his  relatives Anil Kumar and
\nSatbir Singh who had been arrested on that day by the police
\nreleased and  that his\tevidence that  Anil Kumar and Satbir
\nSingh were  not his  relatives at  all is totally unreliable
\nfor  reasons  mentioned\t above\tin  the\t discussion  of\t the
\nevidence relating to the incident at Kalaka polling station.
\nThe evidence  of R.W.  22 as  a whole  is unreliable for the
\nreasons already mentioned above.\n<\/p>\n
     Mr. Sibbal\t did not  reply upon any portion of the tape
\nrelating to  the conversation in Burthal Jat polling station
\nbut he has relied for the purpose of the appellants’ case in
\nrelation to Burthal Jat polling station upon that portion of
\nthe tape  which relates\t to the\t conversation between P.W. 7
\nand K.W. 22 in the office of P.W. 10 at about 7 or 7.30 p.m.
\nOn 19.5.1982.  The fact\t that a portion of the tape-recorded
\nconversation in\t Burthal Jat  polling station  got erased by
\nP.W.7’s own  voice due\tto inadvertence\t is  no\t reason\t for
\nrejecting  the\t remaining  portion  of\t the  tape.  It\t was
\ndemonstrated in\t this Court  that the tape-recorded has only
\none knob  for operating\t the recorder  for  three  purposes,
\nnamely, recording,  playing and rewinding. If by mistake the
\nknob is pushed for rewinding and thereafter for recording at
\na particular point it is probable that what had been
\n497<\/span>
\nrecorded earlier  gets erased  by the  time the\t mistake  in
\noperating A  the knob  is noticed.  Therefore, there  is  no
\nreason to reject the evidence of P.W.7 that a portion of the
\ntape-recorded conversation  in Burthal\tJat polling  station
\ngot erased by his own voice due to inadvertence.\n<\/p>\n
     The  oral\t and  documentary   evidence  regarding\t the
\nincident at  Burthal Jat  polling  station  let\t in  by\t the
\nappellants receives  corroboration to  a certain extent from
\nthe evidence  of some  of the respondent’s own witnesses. As
\nstated earlier,\t R.W. 12  has admitted\tthat P.W. 32 who was
\nstanding about\t80 kadams  away from the polling station was
\nhaving an  altercation with  some people  and that even when
\nthe altercation\t was going  on some police personnel arrived
\nthere and  they took  into custody two persons and there was
\nalso a\tjeep at some distance away from the place where P.W.
\n32 and\tothers were  having an altercation. Even R.W. 13 has
\nstated that  P.W. 32  was having  a dispute with two unknown
\npersons about  120 kadams  away from the polling station and
\nsoon  thereafter   he\theard\tpeople\t saying\t  that\t the
\nSuperintendent\tof   Police  took  away\t those\ttwo  unknown
\npersons. The  names of\tAnil Kumar and Satbir Singh had been
\nspecifically and  clearly mentioned in the election petition
\nin regard to the incident at the Burthal Jat polling station
\nand they  have been  alleged to\t be  the  relatives  of\t the
\nrespondent. The\t respondent has\t not specifically denied the
\nsaid allegation\t in his\t written statement  but\t during\t the
\ntrial he  attempted to\tmake it\t appear that  they were\t not
\nrelated to  him. However,  it has been found above that they
\nare related  to him.  Still the respondent who had shown his
\nserious concern\t to get them released from police custody on
\n19.5.1982 has  not called those two persons as his witnesses
\nto rebut  the case of the appellants. Therefore, as observed
\nin Chenna  Reddy v.  B.C. Rao (supra) in these circumstances
\nan adverse  inference has to be drawn against the respondent
\nwho has not called those two persons as his witnesses though
\ntheir evidence\tshould be available to him in support of his
\ncontention regarding  the incident  at Burthal\tJat  polling
\nstation.  Therefore,  I\t accept\t the  oral  and\t documentary
\nevidence let  in by  the appellants  as referred to above as
\nbeing reliable and reject the evidence of the respondent and
\nhis witnesses  in regard  to the  incident  at\tBurthal\t Jat
\npolling station\t and  find  that  at  the  instance  of\t the
\nrespondent his\trelatives Anil\tKumar and  Satbir Singh\t who
\nwere left  behind by him along\twith 15 or 20 persons with a
\njeep containing\t sticks interfered  with the exercise of the
\nelectoral right\t of P.W.  32 and  others as  alleged in\t the
\nelection petition  as a\t result of which they had to go away
\nfrom the queue in which
\n498<\/span>
\nthey were  standing awaiting  their turn  for casting  their
\nvotes though  they had\tsubsequently  come  to\tthe  polling
\nstation and cast their votes.\n<\/p>\n
     Now I shall consider the respondent’s contention raised
\nin the\twritten\t statement  that  the  allegation  that\t the
\nrespondent and\tsome of\t his armed  companions\tentered\t the
\npolling station\t and brandished\t their guns at the Presiding
\nOfficer and  ordered the  other polling\t staff\tand  polling
\nagents\tof  various  candidates\t to  stand  still  does\t not
\nconstitute any corrupt practice and that the allegation that
\nthe polling agents Amar Singh and Suraj Bhan were threatened
\nand turned  out of  the polling\t station does not constitute
\ncorrupt practice  as they  are not alleged to be electors of
\nKalaka village.\t Mr. Rao  submitted that these acts, even if
\nproved,\t would\tamount\tto  only  electoral  offences  under
\nsection 136  (b) (f)  and (g)  read with section 8 and would
\nnot constitute\tcorrupt practice  under section\t 123(2) read
\nwith section  79(d) of the Act. In support of his contention
\nMr. Rao\t invited this  Court’s attention  to the decision in
\nNagendra Mahto\tv. The State (supra) where it has been held,
\nas stated  earlier, that the L) criminal revision petitioner
\nbefore the  High Court\twho had insisted upon going into the
\nroom where  the ballot papers were kept though the Presiding
\nOfficer had  warned him\t to go\tout of\tthe  room  and\talso
\nattempted to  put some\tballot papers  into the\t box of\t one
\nNitai Singh  Sardar was\t rightly convicted under section 131
\n(1) (b)\t and section  136 (L)  (f) of  the Act. On the other
\nhand,  Mr.    Sibbal  submitted\t that  casting\tbogus  votes
\nforcibly would\tamount to  corn\t pt  practice  as  it  would
\nindirectly interfere  with the electoral right of the voters
\nwhose ballot  papers have  been so  polled, whether they had
\nintended to  come to  the polling station and exercise their
\nright to vote or had intended otherwise. In this connection,
\nhe invited  this Court’s attention the decision\t in Ram Dial
\nv. Sant\t Lal and  Others<\/a> (supra)  where, as extracted above,
\nthis Court  has held  that while  the law  in  England\tlaid
\nemphasis on  the usual\taspect\tof  the\t exercise  of  undue
\ninfluence, under the Indian law what is material was not the
\nactual effect  produced but  the doing\tof such acts as were
\ncalculated to  interfere  with\tthe  free  exercise  of\t any
\nelectoral right.  According to\tsection\t 79(d)\tof  the\t Act
\n‘electoral right’  means the  right of\ta person to stand or
\nnot to\tstand as,  or to  withdraw or  not to  withdraw from
\nbeing a\t candidate, or\tto vote or refrain from voting at an
\nelection. Section  123 (2)  of the Act lays down that “undue
\ninfluence,  that   is  to   say,  any\tdirect\tor  indirect
\ninterference or\t attempt to  interfere on  the part  of\t the
\ncandidate or
\n499<\/span>
\nhis agent,  or of  any other  person with the consent of the
\ncandidate or  his election  agent, with the free exercise of
\nany   electoral right  ……….  shall  be  deemed  to  be
\ncorrupt practice for the purpose of the Act.\n<\/p>\n
     What constitute  electoral\t offences  are\tdetailed  in
\nsections 125 to 136 which fall under Chapter III of the Act.
\nS.125  relates\t to  promoting\tenmity\tbetween\t classes  in
\nconnection with\t election. S.126  relates to  prohibition of
\npublic meetings on the day preceding the election day and on
\nthe election  day. S.127 relates to disturbances at election
\nmeetings. S.127A  relates to restrictions on the printing of
\npamphlets, posters  etc. S.128\trelates\t to  maintenance  of
\nsecrecy of  voting. S.129 relates to prohibition of Officers
\netc., at  elections acting  for candidates  or to  influence
\nvoting. S.130  relates to  prohibition of  conversing in  or
\nnear  polling  stations.  S.131\t provides  for\tpenalty\t for
\ndisorderly  conduct  in\t or  near  polling  stations.  S.132
\nprovides for  penalty for misconduct at the polling station.
\nS.133 provides\tfor penalty  for illegal hiring or procuring
\nof conveyances\tat elections.  S.134 relates  to breaches of
\nofficial duty in connection with elections. S.134A prohibits
\nGovernment servants  from acting  as election agent, polling
\nagent or  counting agent. S.135 relates to removal of ballot
\npapers from polling station. S.135 relates to other  offence
\nand penalties  therefore, namely,  fraudulent defacement  or
\nfraudulent destruction\tof any\tnomination paper; fraudulent
\ndefacement, destruction\t or removal  of any  list, notice or
\nother document\taffixed by  or under  the authority  of\t the
\nreturning   officer;   fraudulent   defacements\t  fraudulent
\ndestruction of\tany ballot paper or the official mark of any
\nballot paper  or any  declaration of  identity\tor  official
\nenvelope used  in connection  with voting  by postal ballot;
\nsupply of  any ballot  paper  to  any  person  or  being  in
\npossession  of\tany  ballot  paper  without  due  authority,
\nfraudulently putting into any ballot box anything other than
\nthe ballot  paper which\t the  person  putting  the  same  is
\nauthorised to  put  in;\t destroying,  opening  or  otherwise
\ninterfering  with  any\tballot\tpaper;\tand  fradulently  or
\nwithout due  authority attempting to do any of the foregoing
\nacts or\t wilfully aiding  and abetting the doing of any such
\nacts. It would appear that forcible marking of ballot papers
\nremoved\t from  polling\tofficers  in  the  polling  station,
\nmarking the  same in favour of any candidate and putting the
\nthem in\t the ballot box is not one of the offences mentioned
\nin them.  Therefore, as\t rightly submitted  by Mr. Sibbal it
\ncannot be contended that in this country forcible polling of
\nbogus votes,  as  mentioned  above,  is\t neither  a  corrupt
\npractice nor an electoral offence. I agree with Mr.
\n500<\/span>
\nSibbal and  hold that forcible polling of bogus votes in the
\ncircumstances and manner found in this case would constitute
\nindirect  interference\twith  the  electoral  right  of\t the
\nconcerned electors  whether they  be persons who had decided
\nto cast\t their votes  in that  election\t or  those  who\t had
\ndecided not to do so. It is significant, in this connection,
\nto note\t that after  having been informed about the forcible
\npolling of bogus votes by the respondent’s men at the Kalaka
\npolling station\t P.W. 7\t had instructed the polling staff to
\nissue tendered\tballot papers  to any  elector whose  ballot
\npaper had  already been\t forcibly polled  who might come for
\nthe purpose of exercising his right.\n<\/p>\n
     I have  referred to and discussed the evidence somewhat
\nin detail in view of the fact that I have disagreed not only
\nwith the  learned Trial\t Judge but also with respect with my
\nlearned brother\t Fazal Ali,  J. with whom my learned brother
\nMukharji, J.  has agree.  The respondent  in this  case\t had
\nmanaged to keep away from the Court material evidence by way
\nof the\toriginal report\t of the Presiding Officer, a copy of
\nwhich is contained in Ex.P-6, by filing C.M.P.31 (E) of 1983
\nin the\ttrial Court.  He had cited the Observer (R.W. 20) as
\nhis  witness   to  depose   about  his\tcase  regarding\t the
\nallegations made  by the  appellants in paras 9 to 12 of the
\nelection petition  regarding the  corrupt practices.  But he
\ndid not\t examine R.W. 20 for that purpose and had called him
\nonly for  the purpose  of production  of some record without
\nany oath  being administered  to him  though  in  his  tape-
\nrecorded conversation  with P.W.  7 in the office of P.W. 10
\non 19.5.1982 referred to above, he had admittedly asked P.W.
\n7 to  get ever\tthing noted by P.W. 20 who was present there
\nat that\t time. He  had thus  denied to\tthe  appellants\t the
\nopportunity to\tcross examine  R.W. 20.\t The respondent\t had
\ncome forward  with a new case of alleged booth-capturing and
\nforcible polling  of bogus votes by Ajit Singh in the Kalaka
\npolling station\t after\tthe  appellants\t had  completed\t the
\nexamination of\ttheir witnesses\t to whom  no such suggestion
\nwas made  in the cross-examination. He had repeatedly denied
\nin his\tevidence that  Anil Kumar  and Satbir  Singh who had
\nbeen arrested  by the  police at  the  Burthal\tJat  polling
\nstation on  19.5.1982 were his relatives though in his tape-
\nrecorded conversation referred to above he had informed P.W.
\n7 that\tthey were  his close  relatives and he had shown his
\nanxiety to  get them released from police custody forthwith.
\nHe had\tneither cited  them nor called them as his witnesses
\nthough they  would have been material witnesses in regard to
\nthe  incident  at  the\tBurthal\t Jat  polling  station.\t The
\nrespondent’s evidence as R.W. 22 has been found to be wholly
\nunreliable for reasons already mentioned. In
\n501<\/span>
\nthese circumstances  what my  learned brother  Fazal Ali, J.
\nhas  mentioned in the first para of his judgment barring the
\nfirst sentence\tin that\t para would  apply to the respondent
\nalone. An  election petition  seeking a declaration that the
\nelection of the returned candidate is void under section 100
\n(1)(b) on  account of corrupt practice as per section 132(2)
\nof the\tAct, as\t in the\t present case, is a civil proceeding
\nthough the  standard or\t degree of proof required is as in a
\ncriminal case.\tIn any\tcase, two  views are not possible in
\nthe present case where the appellants have proved beyond all
\nreasonable doubt  that\tthe  respondent\t has  committed\t the
\ncorrupt practices  alleged in  at the Kalaka and Burthal Jat
\npolling stations.  No lenient view can be taken in this case
\nmerely because the election petition is directed against the
\nreturned candidate  for, only  in the  case  of\t a  returned
\ncandidate Parliament has provided, in the interest of purity
\nin elections,  for serious  consequences  of  not  only\t (1)
\ndeclaring the  election void  under section  100 (1) (b) but
\nalso (2) disqualification under section 8A of the Act by the
\nPresident for  a period\t not  exceeding\t six  years  when  a
\nfinding of  corrupt practice  is recorded against a returned
\ncandidate. For\tall the\t reasons mentioned above I hold that
\nthe appellants\thave succeeded\tin proving the two instances
\nof corrupt  practice pressed  in this Court and are entitled
\nto succeed in this appeal. The appeal is accordingly allowed
\nwith costs  of Rs.  5,000 payable by the respondent-returned
\ncandidate.\n<\/p>\n
     SABYASACHI MUKHARJI,  J. Having  had the  advantage  of
\nreading the  judgment of  my learned brother Fazal Ali,J., I
\nagree with  the reasoning  and the conclusions arrived at by
\nmy learned  brother. I\twould, however,\t like to  express my
\nviews on  following four  points  involved  in\tthe  appeal:
\nfirstly,  this\tbeing  appeal  under  section  116A  of\t the
\nRepresentation of  the People  Act, 1951  which\t is  in\t the
\nnature of  first  appeal  to  this  Court,  how\t should\t the
\nappraisement of\t evidence by  the trial Court be reviewed by
\nthis  Court  in\t this  appeal,\tsecondly,  subject  to\twhat
\nsafeguards the\ttape-recorded evidence\tshould be  accepted,
\nthirdly, this  being  election\tpetition  involving  corrupt
\npractice, the  nature of  evidence required  to proved\tby a
\ncontesting party  in order to succeed, and fourthly, whether
\nbogus votes  or booth capturing itself is a corrupt practice
\nbecause it  deprives other  genuine voters in general of the
\nright to vote or the right to abstain from voting.\n<\/p>\n
     In this  case, evidence  of tape-recording\t made by the
\nDeputy Commissioner,  Shri Bhaskaran was produced before the
\nHigh  Court.  In  this\ttape-recorded  evidence\t the  Deputy
\nCommissioner has
\n502<\/span>
\nrecorded the  incidents on  the date  of polling  at several
\nbooths but reliance was placed only on the evidence relating
\nto two booths namely Kalaka and Burthal Jat. For the reasons
\nrecorded in  his judgment,  the learned\t trial judge has not
\naccepted  the\ttape-recorded  evidence.   The\t tape-record
\npurports to record statements made by some persons including
\npolling agent,\tpolling officer\t Col. Ram  Singh and  Deputy
\ncommissioner him  elf. About  the acceptance and reliability
\nof evidence  on\t tape-recording,  one  should  proceed\tvery
\ncautiously. In\tthis connection\t on the analogy of mutilated
\ndocument if  the tape-recording\t is not coherent or distinct
\nor clear,  this should\tnot be\trelied\tupon.  See  in\tthis
\nconnection the\tobservations in\t American Jurisprudence Vol.
\n30 page 939.\n<\/p>\n
     In the case of R. v. Maqsud Ali, [1965] 2 All E.R. page
\n464 in respect of criminal trial the question was considered
\nby the\tCourt of Appeal in England. A tape-recording, it was
\nheld, was  admissible in  evidence provided  the accuracy of
\nthe recording  car, be proved and the voices recorded can be
\nproperly identified  and that  the evidence  is relevant and
\notherwise admissible. The Court, however, observed that such
\nevidence should\t always be  regarded with  some caution\t and
\nassessed in the light of all the circumstances of each case.
\nThere cannot,  however, be  any question  of laying down any
\nexhaustive set\tof rules  by which the admissibility of such
\nevidence should\t be judged.  It was  further  observed\tthat
\nprovided the  jury was\tguided by  what they hear themselves
\nfrom the tape recording and on that they base their ultimate
\ndecision, there\t is no objection to a copy of the transcript
\nof a tape recording, properly proved, being put before them.
\nlt is  not necessary to set out the particular facts of that
\ncase. It  may be  noted,  however,  that  Marshall,  J.\t had
\nobserved at pages 469-70 of the report as follows:\n<\/p>\n
\t  “It is next said that the recording was a bad one,
\n\t  overlaid in  places by  street and  other  noises.
\n\t  This obviously was so and as a result, much of the
\n\t  conversation was  inaudible or  undecipherable. In
\n\t  so far  as that  was so,  much of the conversation
\n\t  was never  transcribed, but  there still  remained
\n\t  much that  was transcribed,  and the learned judge
\n\t  after full argument ruled that what was deciphered
\n\t  should be  left for  the jury\t to assess. We think
\n\t  that he  was right.  Lastly, it  was said that the
\n\t  difficulties of  language were such as to make any
\n\t  transcription\t unreliable   and  misleading.\tThis
\n\t  argument the learned judge treated
\n503<\/span>
\n\t  with great  care and\tcircumspection. Th: recorded
\n\t  conversation was  in Punjabi dialect confined to a
\n\t  particular area  of Pakistan.\t He  was  told\tthat
\n\t  there were  many such\t dialects in  which  similar
\n\t  words differed  in or\t had more  than one meaning,
\n\t  that the  meaning of\tsentences often\t depended on
\n\t  the order of the words, that pronouns were matters
\n\t  of inference\tand  R\tnot  represented  by  actual
\n\t  words.  Often\t  only\tparts\tof  sentences\twere
\n\t  decipherable owing to the other extraneous noises.
\n\t  He decided,  before admitting the evidence to have
\n\t  a trial  within a  trial in which translators were
\n\t  called by  both aids\twhich, I think I am right in
\n\t  saying,  lasted   2-1\/2  days.  All  matters\twere
\n\t  canvassed tn very great detail. He discovered that
\n\t  there were certain passages common to translations
\n\t  and in  the end, he decided that it was a question
\n\t  which should\tbe left\t to the\t jury but he did not
\n\t  think this  evidence was  so unsatisfactory that I
\n\t  should withdraw it from the jury.”<\/p><\/blockquote>\n
     It has  to be  borne in  mind that\t in England  and  in
\nAmerica, the  mechanism of  tape recording is well-advanced.
\nIn this\t country, it  is not  so  as  yet.  Furthermore\t the
\ninfirmities, some  of which  have been noted by Marshall, J.
\nof tape\t recording, are\t more evident  in the  instant\tcase
\nbefore us.\n<\/p>\n
     In R. v. Robson. [1972] 2 All E.R. page 699 the accused
\nwas charged  inter alia,  with corruption.  The\t prosecution
\nought to  put  in  evidence  certain  tape  recordings.\t The
\ndefence contended that these were not admissible because (i)
\nlt had\tnot been  shown that  these were the originals or in
\nthe absence  of the  originals true copies of them, and (11)
\nthey were  misleading and should not be relied on because in
\nmany places  these were\t unintelligible and  of poor quality
\nand  their  potential  prejudicial  effect  would  therefore
\noutweigh the  evidentiary value\t claimed for   these. It was
\nheld by the Court as follows:-\n<\/p>\n
\t  “The recordings  were admissible for the following
\n\t  reasons-\n<\/p><\/blockquote>\n
\t  (1) the  Court was  required to  do no  more\tthan
\n\t  satisfy  itself   that  a   prima  facie  case  of
\n\t  originality had  been made  out by  evidence which
\n\t  defined and  described the  provenance and history
\n\t  of the  recordings up\t to the moment of production
\n\t  in Court and had not been
\n504<\/span>
\n\t  disturbed    on    cross-examination;\t   in\t the
\n\t  circumstances that  requirement had been fulfilled
\n\t  (see p 701 f and p 702 a, post).\n<\/p><\/blockquote>\n
\t  (ii) the  Court was  satisfied, on  the balance of
\n\t  probabilities, that  the recordings  were original
\n\t  and authentic\t and their  quality was\t adequate to
\n\t  enable the  Jury to  form a fair assessment of the
\n\t  conversations recorded  in them  and should not be
\n\t  excluded on  that account  (see p  703  f  and  8,
\n\t  post).”<\/p><\/blockquote>\n
     In the  instant case,  the tape  recordings, as we have
\nheard, were misleading and could not be relied on because in
\nmost places they were unintelligible and of poor quality and
\nof no  use  therefore  their  potential\t prejudicial  effect
\noutweighs the evidentiary value of these recordings.\n<\/p>\n
     This Court\t had also  considered this  question in Shri
\nN.Sri Rama  Reddy Etc  v. Shri\tV.V. Giri.<\/a> [1971] 1 SCR page\n<\/p>\n
399. There  in case of an election trial it was held by this
\nCourt that  the previous  statement made  by  a\t person\t and
\nrecorded on  tape, could be used not only to corroborate the
\nevidence  given\t  by  the  witness  in\tCourt  but  also  to
\ncontradict his\tevidence given\tbefore the court, as well as
\nto test\t the veracity of the witness ant also to impeach his
\nimpartiality. Apart  from being\t used for corroboration, the
\nevidence was  admissible  in  respect  of  the\tother  three
\nmatters under  sections 146  (1),  153,\t Exception  (2)\t and
\nsection 155  (3) of  the Evidence  Act. This  Court observed
\nafter referring\t to some  cases that  two  propositions\t are
\nclear that  (1) tape  recorded conversation is admissible in
\nevidence (2) if it contains the previous statement mate by a
\nwitness, it  may be  used to  contradict his  evidence given
\nbefore the Court. But the Court cautioned itself at page 411
\nthat though  tape recording may be admissible what weight it
\nhas to\tbe put\tto such evidence depended upon the facts and
\ncircumstances and other relevant factors.\n<\/p>\n
     In the  case of  R.M. Malkani  v. State  of Maharashtra<\/a>
\n[1973] 2  S.C.R. page  417. This  Court observed  that\ttape
\nrecorded conversation  was admissible  provided firstly that
\nthe conversation  was  relevant\t to  the  matters  in  issue
\nsecondly, there was identification of the voice and thirdly,
\nthe accuracy  to tape recorded conversation has to be proved
\nby eliminating the possibility of erasing the tape.\n<\/p>\n
505<\/span><\/p>\n
     In the  facts of the present case, however, the dangers
\nnoted A\t by this  Court were present. So therefore though in
\nan appropriate\tcase it\t may be\t possible to rely upon tape-
\nrecorded conversation, in the facts of this case and for the
\ninfirmities in\tthe tape-recorded  evidence as\tpointed\t out
\nbefore, this cannot be relied in the instant case.\n<\/p>\n
     On the  aspect of\tthe nature of evidence, the question
\nhere is\t not who is a saint or who is a sinner. It has to be
\nborne in  mind that  this is a quasi-criminal proceeding. It
\nhas been so held in numerous decisions. “Quasi means `asif’,
\n‘similar to’.  The question of nature of evidence was rather
\nexhaustively examined  by a  decision of  this Court  in  M.
\nChenna Reddy  v. V.  Ramachandra Rao and Anr., [1972] E.L.R.
\nVol. 40\t page 390.  mere after discussing the evidence, G.K.
\nMitter, J.  speaking for this Court reiterated the nature of
\nevidence at pages 414-415 thus:\n<\/p>\n
\t  “This court has held in a number of cases that the
\n\t  trial of an election petition on the charge of the
\n\t  commission of\t a corrupt  practice partakes of the
\n\t  nature of  a criminal\t trial in  that the  finding
\n\t  must be  based not on the balance of probabilities
\n\t  but on  direct and  cogent evidence to support it.
\n\t  In  this   connection,  the\tinherent  difference
\n\t  between the  trial of\t an election  petition and a
\n\t  criminal trial  may also  be noted.  At a criminal
\n\t  trial the  accused need  not lead any evidence and
\n\t  ordinarily he does not do so unless his case is to
\n\t  be established  by positive  evidence on his side,
\n\t  namely, his insanity or his acting in self-defence
\n\t  to protect himself or a plea of alibi to show that
\n\t  he could  not have  committed the crime with which
\n\t  he was  charged. m e trial of an election petition
\n\t  on the charge of commission of corrupt practice is
\n\t  somewhat different.  More often  than not proof of
\n\t  such\tcorrupt\t  practices  depends   on  the\toral
\n\t  testimony of witnesses- The candidate charged with
\n\t  such corrupt practice invariably leads evidence to
\n\t  prove his denial; it becomes the duty of the Court
\n\t  to weigh the two versions and come to a conclusion
\n\t  as to\t whether notwithstanding  the denial and the
\n\t  evidence in rebuttal, a reasonable person can form
\n\t  the opinion  that on\tthe evidence  the charge  is
\n\t  satisfactorily established.  We cannot  also\tlose
\n\t  sight of the fact that quite apart from the nature
\n\t  of the  charge the  trial itself goes on as if the
\n\t  issues in a civil suit
\n506<\/span>
\n\t  were being  investigated into.  The petitioner has
\n\t  to give  particulars of  the corrupt practice with
\n\t  details in  default whereof the allegations may be
\n\t  ignored; the\tpetitioner has\tto ask\tfor  certain
\n\t  declarations and  the procedure  before  the\tHigh
\n\t  Court is  to be in accordance with that applicable
\n\t  under the  Code of Civil Procedure to the trial of
\n\t  suits with the aid of the provisions of the Indian
\n\t  evidence Act.\t Inferences can\t therefore be  drawn
\n\t  against a  party who\tdoes not call evidence which
\n\t  should be available in support of his version.<\/p><\/blockquote>\n
     In the  case of  Ram Sharan  Yadav v.  Thakur Muneshwar
\nNath Singh  and Others<\/a>\t[1984] S.C.C.  page 649\t this  Court
\nobserved that  the charge  of a\t corrupt practice  is in the
\nnature of  a criminal charge which if proved, entails a very
\nheavy penalty  in the form of disqualification. Therefore, a
\nvery cautious  approach must  be made  in order to prove the
\ncharge\tof   undue  influence\tlevelled  by   the  defeated
\ncandidate. It  is for  the party  who sets  up the  plea  of
\n‘undue influence’  to prove it to the hilt beyond reasonable
\ndoubt and  the manner  of proof should be the same as for an
\noffence in  a criminal\tcase. However,\twhile  insisting  on
\nstandard of  strict proof,  the Court  should not  extend or
\nstretch this  doctrine to  such an extreme extent as to make
\nit well-nigh  impossible to  prove an  allegation of corrupt
\npractice. See  also in\tthis connection\t the observations in
\nthe case  of Sardar Harcharan Singh v. Sardar Sajjan Singh &
\nOrs. Civil  Appeal No.<\/a> 3419 (NCE) of 1981-Judgment delivered
\non 29th November, 1984.\n<\/p>\n
     Judged by\tthe aforesaid  standard, for the infirmities
\nmentioned in  the judgment  of my learned brother, it cannot
\nbe said\t that the  appellants have  proved their case to the
\nextent required to succeed.\n<\/p>\n
     While in  a first\tappeal, the  entire evidence  can be
\nreviewed by  the appellate  Court, and\tthis being the first
\nappeal under  Section 116A  of\tthe  Representation  of\t the
\nPeople Act,  one must,\thowever, always\t bear in  mind\tthat
\nwhere the  question is\twhether the oral testimony should be
\nbelieved or  not, the views of the trial judge should not be
\nlightly brushed aside where the trial judge has to advantage
\nof judging  the manner\tand demeanour  of the  witness which
\nadvantage the  appellate Court\tdoes not  enjoy, This  is  a
\nlimitation on  all appellate  Courts whether be it the first
\nappeal or  second appeal. In believing the oral testimony of
\na witness,  the view  of the  judge who hag the advantage of
\nwatching the demeanour and the conduct of the witness cannot
\nbe lost sight
\n507<\/span>
\nof. See\t the observations  of this  Court  in  Moti  Lal  v.
\nChandra Pratap\tTiwari & Ora. AIR<\/a> 1975 SC page 1178 see also
\nthe observations of this Court in Raghuvir Singh v. Raghubir
\nSingh Kushwaha.\t AIR<\/a> 1970  S.C. page  442. In  view  of\t the
\nnature of  the evidence\t on record,  we find  no  reason  to
\ndisagree with  the  appraisement  of  the  evidence  by\t the
\nlearned trial judge.\n<\/p>\n
     Last point indicated above is interesting as was sought
\nto be raised by Mr. Sibbal, because preventing a person from
\ncasting his  vote or  causing a bogus vote purpoting to be a
\nvote of\t some one  other than  the genuine  voter would be a
\nserious interference with the electoral process, as grave as
\npreventing a  person from  voting.  Right  to  abstain\tfrom
\nvoting is  recognised in our system of election. But in view
\nof the\tevidence in this case, the point need not be pursued
\nfurther.\n<\/p>\n
     For the  reasons mentioned\t before, I  agree  that\t the
\nappeal be dismissed.\n<\/p>\n
\t\t\t   ORDER
\n     In accordance  with the  decision of  the majority, the
\nappeal is dismissed without any order as to costs.
\nP.B.R.\n<\/p>\n
508<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ram Singh & Ors vs Col. Ram Slngh on 7 August, 1985 Equivalent citations: 1986 AIR, 3 1985 SCR Supl. (2) 399 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: RAM SINGH & ORS. Vs. RESPONDENT: COL. RAM SLNGH DATE OF JUDGMENT07\/08\/1985 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-14806","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRam Singh & Ors vs Col. 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