Civil Appeal No 6623 of 1983
From the Judgment and Order dated 361983 of the Punjab  Haryana High Court in EP 1382
Kapil Sibal Gopi Chand KC Sharma R Karanjawala Mrs M Karanjawala Miss Neethu  Mrs Madhu Tewatia for the Appellants
KG Bhagat Additional Solicitor General RVenkataramani Ranbir Singh Yadav PS Pradhan Chandra Shekhar Panda and A Mariaroutham for the Respondent
The following Judgments were delivered FAZAL ALI J The election process in our country has become an extremely complex and complicated system and indeed a very difficult and delicate affair
Sometimes the election petitioner who has lost the election from a particular constituency makes out on the surface such a probable feature and presents falsehood dextrously dressed in such a fashion as the truth being buried somewhere deep into the roots of the case so as to be invisible looks like falsehood which is depicted in the grab of an attractive imposing and charming dress as a result of which some courts are prone to fall into the trap and hold as true what is downright false
If however the lid is carefully opened and the veil is lifted the face of Falsehood disappears and truth comes out victorious
In such cases the judicial process and the judicial approach has to be both pragmatic and progressive sc that the deepest possible probe is made to get at the real truth out of a heap of dust and cloud
This is indeed a herculean task and unless the court is extremely careful and vigilant the truth may be so completely camouflaged that falsehood may look like real truth
Of course the advocacy of the counsel for the parties does play a very important role in unveiling the truth and in borderline cases the courts have to undertake the onerous task of disengaging the truth from falsehood to separate the chaff from the grain
In our opinion all said and done if two views are reasonably possible one in favour of the elected candidate and the other against him Courts should not interfere with the expensive electoral process and instead of setting at naught the 405 election of the winning candidate should uphold his election giving him benefit of the doubt
This is more so where allegations of fraud or undue influence are made
There observations have been made by us in order to decide election cases with the greatest amount of care and caution consideration and circumspection because if one false step is taken it ay cause havoc to the person who loses
It is not necessary for us to dwell on or narrate the facts of the case of the parties which have detailed by the High Court in very clear and unambiguous terms
To repeat the same all over again might frustrate the very object of deciding election petitions with utmost expedition
Even so it may be necessary for us to give a bird s eye view and a grotesque picture of the important and dominant elements of the controversy between the parties in order to understand which of the two cases presented before us is true
The evidence in the present case consists of a Oral evidence of the witnesses of the parties b the documentary evidence c the evidence consisting of the tape recorded statements of the conversation between the Deputy Commissioner and the respondent Col Ram Singh corroborated by the respondent himself who was examined as a court witness by us in this Court and both sides were given full opportunity to cross examine him
d important points of law arising out of the arguments presented before us and e authorities of this Court or other courts cited before us
For the purpose of understanding the truth and the spirit of the matter a scientific dichotomy of the case has to be made which may include the following factor a Time and manner of voting 406 b allegation of both capturing c role played by the electoral authorities who ma have acted honestly yet the possibility of their falling an easy prey to the machinations of one side or the other cannot be safely eliminated which may lead to an error of Judgment on their part
This should be fully guarded against as also the possibility of their being attracted by any False temptation d
Where the proof of a corrupt practice is he very cornerstone and the bedrock of the case set against the successful candidate the court should be doubly sure that it is not lured to fall in the labyrinth of chaos and confusion by easily holding that the corrupt practice alleged has been proved
With this short prelude we would now proceed to give an exhaustive glimpse of the contentions raised before us by the parties
Before however we do that we must record our appreciation and gratefulness to the counsel for both the parties who in a big case like this had been fair enough to confine their arguments only to two polling stations viz Kalaka and Burthal Jat which has rendered our task much easier besides saving a lot of time labour and expense
We also feel indebted to the learned counsel for the parties for having argued the case with dexterity and brevity which as it is said is the soul of wit 
The present appeal arises out of an election held on May 191982 to the Haryana Vidhan Sabha from Rewari constituency No86
In view of the concession made by the counsel for the parties we are concerned in this appeal only with two polling booths viz Kalaka and Burthal Jat
It appears that there were as many as five candidates and Col Ram Singh respondent seems to have been pitted against the aforesaid candidates
The bedrock of the allegations made by the appellants against the respondent was that he has been painted to be a most undependable and unreliable person from the moral point of view as having changed sides with one party or the other to suit his needs and divided his loyalties by playing a dirty game of politics in that he changed sides without any fixed ideology and the only principle which according to the appellants the respondent had was lust for power
It may be pertinent to note 407 here that the respondent had also alleged that Rao Birendra Singh who according to him was the evil genius of the whole show had set up his sister Sumitra Bai to contest the election in order to get the respondent out of the way
However we are not at all concerned with any of these matters or allegations which appear to be foreign to the scope of the present appeals nor are these matters of which any serious notice can be taken because as Shakespeare has said everything is fair in war and love and the respondent could not be presumed to be as virtuous as Ceasar s wife so as to be completely above board
So we cannot blame the respondent if he changed sides to suit the temper of the times
At any rate this allegation has no relevance to the setting aside of the election of the successful candidate
The law does not recognise either political morality or personal loyalties so long as the candidate allows a fair game to be played without destroying the sanctity of the electoral process by indulging in undue influence or corrupt practices which must be proved satisfactorily beyond reasonable doubt
So far so good
A conspicuous fact may however be noticed here viz that clear and specific allegations with facts and figures regarding the corrupt practices indulged in by the respondent have not been alleged in the first part of the election petition itself
The allegation however have been detailed in the statement of particular submitted by the appellants who were certainly entitled to do so but we should have expected some definitive and specific allegations regarding the nature of the fraud or the corrupt practices committed by the respondent as briefly as possible in the main part of the petition itself
Therefore this is doubtless a relevant factor in Judging the truth of the particulars mentioned in the statement more particularly when the onus of proving the corrupt practice lies entirely on the election petitioner who must demonstrably prove the same
And now a pointed peep into the salient features of the facts of the case
To begin with the arguments of the appellants are confined only to the Kalaka and Burthal Jat polling booths
Therefore we proceed further we might at this stage briefly indicate shorn of details the nature character and the extent of the allegations regarding the corrupt practices and booth capturing alleged to have been indulged in by the respondent on the basis of which the appellants seek to set aside the election of the respondent
408 As regards Kalaka 1 it was alleged that the respondent appeared at the scene at about 1030 am with 50 60 persons and was himself armed with a gun while his companions had guns sticks and swords
By sheer show of force the voters were threatened and pressurised as a result of which they ran away without exercising their votes
In other words the allegation is that as a result of the serious threat held out by the respondent the voters were deprived of their valuable right of fraenchise
2 The respondent alongwith his companions enter the booth and terrorised the polling officer as also the polling agents Basti Ram  Ishwar of the Congress I candidate who were assaulted by The respondent by the but end of the barrel of his gun
3 The respondent and others at gun point snatched away about 50 ballot papers from the polling staff and after marking them in his respondent favour put them into the ballot box
4 The respondent and his companions at his respondent instance thumb marked the counterfoils of the ballot papers also
As regards Burthal booth 1 the appellants alleged that almost the same modus operandi was adopted by the respondent and he directed his supporters to prevent the voters from entering the booth thereby depriving them of the opportunity of exercising their right to vote
2 Not content with this the respondent left behind his relations Anil Kumar and Satbir Singh to carry on the aforesaid activities and gave further instructions that the maximum number of votes should be polled in his favour
Thus so far as Kalaka and Burthal polling booths are concerned two important corrupt practices have been alleged by the appellants 1 forcible polling of votes and 2 preventing the genuine voters from exercising their right to vote
It manifestly follows that once it is proved that the respondent was not present at the time of the incidents at Kalaka 409 and Burthal the case of the appellants falls like a pack of cards because it is well settled by several authorities of this Court that the corrupt practice must be committed by the candidate or his polling agent or by others with the implicit or explicit consent of the candidate or his polling agent
Where however the supporters or a candidate indulge in a corrupt practice on their own without having been authorised by the candidate or his polling agent the election of the returned candidate cannot be voided
We might mention here that the last factor indicated by us is conspicuously absent in this case taking ex facie the entire facts narrated by the appellants in their pleadings or in the evidence
Before however analysing and marshalling the evidence we would like to refer to the authorities of this Court and other courts regarding the necessary precautions to be Taken in approaching evidence in election cases and she principles laid down by us
We would also deal with the extent of the admissibility of the evidence of the tape recorded statements alleged to have been made by some of the witnesses in the tape recorder recorded by PW 7 the Deputy Commissioner
As regards the principles enunciated by this Court regarding the nature and the standard of proof of corrupt practice alleged by an election petitioner against the successful candidate though it is not necessary for us to burden our judgment with multiplicity of authorities yet the ratio of some of the important decisions which are directly in point may be briefly stated
To begin with as far back as 1959 in Ram Dial vs Sant Lal Ors 1959 2 supp
SCR 748 the Court observed thus What is material under the Indian law is not the actual effect produced but the doing of such acts as are calculated to interfere with the free exercise of any electoral right
Decisions of the English Courts based on the words of the English Statute which are not strictly in pari materia with the words of the Indian statute cannot therefore be used as precedents in this country In Samant N Balakrishna etc
vs George Fernandez  Ors
etc    this Court while dwelling on the principles to be followed in election cases pithily point out thus 410 The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must point unerringly to the conclusion and must not admit of any other explanation
Although the trial of an election petition is made in accordance with the Code of Civil Procedure it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved
In other words the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent In Ch
Razik Ram vs Ch
Jaswant Singh Chouhan  Ors  this Court laid down the following principles Before considering as to whether the charges of corrupt practice were established it is important to remember the standard of proof required in such cases
It is well settled that a charge of corrupt practice is substantially akin to a criminal charge
The commission of a corrupt practice entails serious penal consequences
It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time
Thus the trial of an election petition being in the nature of an accusation bearing the indelible stamp of quasi criminal action the standard of proof is the same as in a criminal trial
Secondly even if the nature of the trial of an election petition is not the same in all respects as that of a criminal trial the burden of proving each and every ingredient of the charge in an election petition remains on the petitioner
If a fact constituting or relevant to such an ingredient is pre eminently within the knowledge of the respondent it may affect the quantum of its proof but does not relieve the petitioner of his primary burden
 In Balwan Singh vs Prakash Chand  Ors   ShinghalJ made the following observations Another argument of Mr Bindra was that the corrupt practice in question should not have been found to 411 have been committed as the election petitioners did not examine themselves during the course of the trial in the High Court
There was however no such obligation on them and the evidence which the election petitioners were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely
 In the case of Sultan Salahuddin Owasi vs Mohd Osman Shaheed  Ors1980 3 SCC 281 to which one of us Fazal Ali J was a party this Court observed thus It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt the standard of proof of such allegation s the same as a charge of fraud in a criminal case
In Ram Sharan Yadav vs Thakur Muneshwar Nath Singh  Ora   to which two of us were parties this Court observed thus The sum and substance of these decisions is that a charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of E probabilities
As the charge of a corrupt practice is in the nature of a criminal charge it is for the party who sets up the plea of  undue influence  to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case
This is more so because once it is proved to the satisfaction of a court that a candidate has been guilty of undue influence  then he is likely to be disqualified for a period of six years or such other period as the authority concerned under Section 8 A of the Act may think fit
By and large the Court in such cases while appreciating or analysing the evidence must be guided by the following considerations 1 the nature character respectability and credibility of the evidence 412 2 the surrounding circumstances and the improbability appearing in the case 3 the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who had the initial advantage of observing the behaviour character and demeanour of the witnesses appearing before it and 4 the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged
 This therefore concludes the question regarding the standard of proof
As heavy reliance was placed by the appellants on exhibit
P 1 the tape recorded statements of RWs 1 to 3 as also the statements recorded in the same tape recorder by PW 7 which included the statement of the respondent in order to allay all doubts and satisfy ourselves regarding the genuineness of the statements made in the tape recorder we have examined the respondent as a court witness in this Court and allowed him to be cross examined by both sides
We would deal with the nature and the relevancy of the statements made at a later part of our judgment
But before that we would like to settle the controversy between counsel for the parties as to the extent of admissibility of evidence recorded on tape recorder or other mechanical process
It seems to us that the matter have is not free from difficulty but the preponderance of authorities Indian and foreign are in favour of admissibility of the statement provided certain conditions and safeguard are proved to the satisfaction of the court
We now proceed to discuss the various ramifications and the repercussions of this part of the case
This Court had the occasion to go into this question in a few cases and it will be useful to cite some of the decisions
In Yusufalli Esmail Nagree vs State of Maharashtra   this Court speaking through Bachawat J Observed thus If a statement is relevant an accurate tape record of the statement is also relevant and admissible
The time and place and accuracy of the recording must be proved by a competent witness and the voices must be 413 properly identified
One of the features of magnetic tape RECORDING is the ability to erase and re use the recording medium
Because of this facility of erasure and re use the evidence must be received with caution
The court must be satisfied beyond reasonable doubt that the record has not been tampered with
The tape was not sealed and was kept in the custody of Mahajan The absence of sealing naturally gives rise to the argument that the recording medium might have been tempered with before it was replayed Emphasis ours In the case of N Sri Rama Reddy etc
vs VVGiri   the following observations were made Having due regard to the decisions referred to above it is clear that a previous statement made by a person and recorded on tape can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court as well as to test the veracity of the witness and also to impeach his impartiality
In RM Malkani vs State of Maharashtra 1973 2 SCR 417 this Court laid down the essential conditions which if fulfilled or satisfied would make a tape recorded statement admissible otherwise not and observed thus Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue secondly there is identification of the voice and thirdly the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record
Emphasis supplied In Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra  Ors 19751 Supp
SCR 281 BegJ as he then was made the following observations We think that the High Court was quite right in holding that the tape records of speeches were 414 documents  as defined by Section 3 of the Evidence Act which stood on no different footing than photographs and that they were admissible in evidence on satisfying the following conditions a The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who knew it
b Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence DIRECT or circumstances had to be there 80 as to rule out possibilities of tampering with the record
c The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the evidence Act
 Ephes ours Thus so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows 1 The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice
In other words it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker
Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker
2 The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial
3 Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and therefore inadmissible
4 The statement must be relevant according to the rules of Evidence Act
415 5 The recorded cassette must be carefully sealed and kept in safe or official custody
6 The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances
The view taken by this Court on the question of admissibility of tape recorded evidence finds full support from both English and American authorities
In R vs Maqsud Ali  Marshall J observed thus C We can see no difference in principle between a tape recording and a photograph
In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices provided the accuracy of the recording can be proved and the voices recorded properly identified provided also that the evidence is relevant and otherwise admissible we are satisfied that a tape recording is admissible in evidence
Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case
There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged
We find ourselves in complete agreement with the view taken by Marshall J who was one of the celebrate Judges of the Court of Criminal Appeal
To the same effect is another decision of the same court in R vs Robson  where Shaw J delivering a judgment of the Central Criminal Court observed thus The determination of the question is rendered more difficult because tape recordings may be altered by the transposition excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts
416 During the course of the evidence and argument on the issue of admissibility the recordings were played back many times
In the end I came to the view that in continuity clarity and coherence their quality was at the least adequate to enable the jury to form a fair and reliable assessment of the conversation which were recorded and that with an appropriate warning the jury would not be led into and interpretation unjustifiably adverse to the accused
Accordingly so far as the matter was one of discretion I was satisfied that  injustice could arise from admitting the tapes in evidence and that they ought not to be excluded on this basis
 In Amercian Jurisprudence 2nd Vo129 the learned author on a conspectus of the authorities referred to in the footnote in regard to the admissibility of tape recorded statements at page 494 observes thus The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings which have been outlined as follows 1 a showing that the recording device was capable of taking testimony 2 a showing that the operator of the device was competent 3 establishment of the authenticity and correctness of the recording 4 a showing that changes additions or deletions have not been made 5 a showing of the manner of the preservation of the recording 6 identification of the speakers and 7 a showing that the testimony elicited was voluntarily made without any kind of inducement
However the recording may be rejected if it is so inaudible and indistinct that the jury must Emphasis ours We would therefore have to test the admissibility of the tape recorded statements of the respondent given in the High Court as also in this Court in the light of the various tests and safeguards laid down by this Court and other Courts referred to above
We shall give a detailed survey of the nature and the character of the statement of the respondent in a separate paragraph which we intend to devote to this part of the case which is really an important feature and if accepted may clinch the issue and the controversy between the parties on the point of corrupt practice
This now brings us to a summary of the nature of the evidence produced by the parties
As already stated counsel for the parties confined their arguments only to the validity of the election relating to Kalaka and Burthal Jat polling booths
By virtue of a notification dated 17482 the Governor of Haryana called upon the voters to elect Members to the Vidhan Sabha
The last date for filing the nomination papers was 24482 the date for scrutiny was 26482 and 28482 was the last date for withdrawal of candidature
The polling was held on 19582 and the counting of votes took place on 20582
It is the last date with which we are mainly concerned
To begin with it appears that 24 persons had filed their nomination papers out of which three were rejected by the Returning Officer and 16 persons withdrew their candidature leaving five persons in the field
Sumitra Devi was a nominee of the Congress I party and the respondent filed his nomination papers initially as an Independent candidate but later on joined Congress J party
The respondent was first in the army but he resigned soon after the Indo Pakistan war in 1971 and started doing business as a diesel dealer in partnership with others
On being elected to the Vidhan Sabha he become its Speaker as he enjoyed the confidence of the then Chief Minister Ch
Devi Lal
As it happened in the 1980 Parliamentary elections the Congress I party swept the polls and Shri Bhajan Lal having left the Janata Party joined the Congress I party along with many of his supporters including the respondent
But we are concerned only with the 1982 Assembly elections to the Haryana Vidhan Sabha in which the main candidates were Smt
Sumitra Devi and the respondent
418 KALKA POLLING BOOTH We would first take up the allegations levelled by the appellants against the respondent regarding the corrupt practices relating to the Kalaka polling booth
According to the evidence of RW1 the polling started at 730 am and went off peace fully without any untoward incident till 1030 am
Near About this time according to the allegations of the appellants the respondent arrived with a posse of 60 70 persons including Des Raj Ram Kishan and others to create disturbance in the polling and to prevent the votes from being polled in favour of other parties
It is also alleged that a mob of 40 50 persons was variously armed with guns lathis and swords and the respondent himself was armed with a gun
As a result of the activities of the respondent some of the voters like Shiv Charan Gurdial and others were forced to run away without exercising their right to vote
It was further alleged that not to speak of the voters even the polling staff was not allowed to do its duty which resulted in the voting coming to a stand still
At this one Mangal Singh raised serious protest and on the orders of the respondent he was assaulted
Ishwar Lambardar was also hit by the buttend of the gun and despite the objections of Basti Ram he was also assaulted
The policemen were heavily outnumbered and had to stand as silent spectator to the whole show
Further details of the acts of omission and commission committed by the respondent have been given in the judgment of the High Court as also on pages 10 12 of Vol
III of the Paperbooks
It is also alleged that the respondent with the aid of his companions snatched as many as 50 ballot papers from the polling staff and after marking them in his favour put them into the ballot box
Ultimately on the arrival of the high officers the Presiding Officer lodged a detailed report giving his own version of the incident on the basis of which FIR was registered on 19582 itself
PW 7 Mr N Balabhaskar the Deputy Commissioner of Mohindergarh District who was the Returning Officer of the entire constituency also reached the spot and made enquiries in the matter
As a result of the trouble created at the instance of the respondent the polling had to be postponed as it was disrupted for more than an hour
These in short are the allegations of the appellants against the respondent in respect of Kalaka polling booth
We shall now referto the evidence led by both the parties on there particular points to show how far the allegation have been proved
To begin with PWs 7 8 12 to 18 deposed in favour of the appellants in respect of this polling booth
In order to 419 rebut the evidence led on behalf of the appellants the respondent produced Roop Chand RW1 Deen Dayal RW2 constable Mohinder Singh RW3 Dhani Ram RW4 Ram Kishan RW5 and Suresh RW6 besides respondent himself RW 22
Having gone through the evidence led on behalf of both the appellants and the respondent we are clearly of the opinion that despite the quantity of the appellants  witnesses the quality of the respondent s witnesses appears to be much superior to that of the PWs
ln regard to the respective facts stated by them
We would like to discuss the evidence of the Respondent witnesses by way of a comparative assessment ln relation to the evidence led by the appellants 80 that a true picture of the cases of the parties may come out conspicuously which would throw a flood of light on the credibility of the witnesses concerned
We shall now show that the statement of RW 1 seems to find intrinsic support from the star witness of the appellants viz PW 7 the Deputy Commissioner
PW 7 is a high officer and therefore a respectable witness though with due respect we might say that his performance in this case has not been very satisfactory and his conduct leaves much to be desired
Without going into further details we might mention that his action in recording the statement of the witnesses on a tape recorder without taking the necessary precautions and safeguards cannot be fully justified
We are not able to understand as to why should he have taken the risk of recording the statements on a tape recorder knowing full well that the evidentiary value of such a tape recorded statement depends on various factors
Since PW was accompanied by his stenographer there could have been no difficulty in recording the statement of the persons concerned by dictating their statements to him and after being typed signed the same and taken the signatures of the deponent a certificate Read over and accepted correct
 If this was done nobody could doubt the authenticity of such statements
PW 7 admits his statement that he was not authorised or asked by any higher officer than him to record the statement at the spot in a tape recorder which obviously he did at his own risk
Furthermore even if he had recorded the statements on a tape recorder he ought not to have kept the cassette in his own custody but should have deposited it in the Record Room according to rules
By keeping the recorded cassette in his own custody the possibility of tampering with or erasure of the recorded speech cannot be ruled out
Another serious defect in recording the statement on a tape 420 recorder was that he had to take further care and precaution to see that the voice of the person whose statement was recorded should be fully identified
Here again he seems to have fallen into an error resulting in a very anomalous position as some of the witnesses particularly those appearing for the respondent have clearly denied their voices in the cassette and refused to identify the same
Others have partly admitted and partly denied their voices alleged to be those of the witnesses for the respondent
Finally he himself admits that there were a number of voices which led to some disturbance and difficulties in putting Two and two together
All these manifest defects could have been avoided if in the usual course he would have administered oath to the witnesses recorded their statements and got the same signed by them as also by himself
In a sanctimonious matter like this it is extremely perilous to take a risk of this kind
Perhaps it any be said that by recording the statements on a tape recorder he save time as he had to go to the other polling booths also
That however does not solve the problem because even if the statements were recorded on a tape recorder they had to be transcribed and by the time the statements were ready the witnesses would not be available to append their signatures
Moreover the direct method of recording the statement by dictating the same to the stenographer would have been as expeditious as recording on a tape recorder and transcribing the same thereafter
We might mention here that the recorded cassette was replayed in this Court and then transcribed and only the relevant statements of the respondent took quite a few hours
Thus by his negligence he allowed the recorded statements to suffer from a manifest defect
That there were some erasures and lot of other voices has been admitted by PW 7 himself in his statement where he stated Thus Some gaps in exhibit P 1 have been left out where the voice was not clear and audible
Many people were standing at the polling booth whose voices have been recorded in the tape
I cannot now identify the person whose voices I had recorded in the tape
I also cannot distinguish the name of person whose voice I had recorded after hearing the tape  
My Stenographer had 421 prepared the transcript ExP1
It was prepared in my office
Most of it was done under my supervision
I might have been temporarily absent to attend to certain other work
 Thus even accepting the statement of PW 7 at its face value it appears that the various safeguards and precautions which the law requires to be taken while recording the statement On a tape recorder were not observed by him
That by itself is sufficient to discard the statement of the respondent recorded on the tape recorder without going into the merits of the said statement
Even so we shall deal with this matter in detail when we take up the recorded statements in the cassette in the light of the evidence of the respondent who had been examined by us as a court witness to throw light on the subject
Another serious infirmity from which the evidence of this witness suffers is that while he himself admits that he was not in a position to identify the voices of the persons whose statements he had recorded RW 1 who was an alternative Presiding Officer at the Kalaka polling booth has completely denied to have made any statement as recorded in the cassette and asserts that he had absolutely no talk with PW 7
Similarly RW 3 constable stated that PW 7 had talked only to the Presiding Officer and to no other member of the polling staff
No evidence has been produced by the appellants to rebut this part of the evidence of RW 3
RW 3 says in unconditional terms as follows I did not make any such statement which is recorded in the tape
The voice recorded in the tape is not my voice
The statement of the witness which is transcribed in Exhibit P l was also put to the witness
After hearing the same the witness stated I did not make any such statement to the Deputy Commissioner nor he interrogated me  It Would thus appear that the two witnesses for the respondent who were government servants and therefore official witnesses clearly and categorically d denied having made any such statement in The cassette
PW 7 HIMSELF has very fairly and frankly stated that he was not in a Position to identify the 422 voices either of the respondent or of the witnesses for the respondent RWs 1 and 3 at the time of giving his evidence
This therefore throws a considerable doubt on the truth of the statement made by these witnesses in the cassette recorder
The law which has been analysed and examined by us is very clear that identification of the voices is very essential
In this view of the matter the tape recorded statements lose their authenticity apart from other infirmities which we shall give later while appreciating the evidence of the respondent in this court
Another circumstance that goes a long way off to demolish the edifice and the structure of the appellants case regarding the Kalaka polling booth is the statement of PW 7 himself
According to the consistent evidence of KWs
1 6 no incident had happened nor was any trouble created by the respondent but instead the musclemen of the appellants led by Ajit Singh tried to create all sorts of trouble information of which was sent to the Deputy Commissioner
Here we might notice the admission of PW 7 where he states as follows At about 1030 am when I was between Mandola and Zainabad villages in Jatsuana constituency I received a message on the wireless the apparatus of which I was having in my motor car that Col Ram Singh had complained against the workers of Congress I
The COMPLAINT was that about 40 to 50 Congress I workers had attacked the Congress J workers at village Kalaka
If the wireless message was sent to the d
C at about 1030 am there could be no question of the respondent or his people to have visited Kalaka polling booth in order to create disturbance
This therefore INTRINSICALLY supports the case of the respondent and demolishes the case of the appellants about the arrival of Col Ram Sing and his relations Satbir Sing and Anil Kumar
It was also in evidence that after the first incident of the morning wireless message received by P W 7 two motor cycles are said to nave been left behind
lt is manifest that if the persons who had committed the disturbances alongwith their companions did not belong to the party of the respondent as the wireless message shows then the only other irresistible conclusion by the process of elimination would be that the motor cycles must have belonged to Ajit Singh and his companions who were supporters of the Congress I candidate
423 Thus this being the posit on and the real state of affairs at the spot in a case like the present one involving high stakes and serious handicaps we should have expected the conduct of the senior officers to have been completely above board
Another reason which throws a considerable doubt on the testimony of the witnesses of the appellants is that PW 7 himself deposed that he did not receive any written complaint from the polling officer or the Presiding Officer or from any other person at the time when he visited the Kalaka polling booth
The appellants tried to bring on file certain complaints made to PW 7 by Suraj Bhan and others but as the original complaint had not been filed the complaint produced by the appellants apart from being clearly inadmissible cannot be relied on particularly in face of the clear admission of the Deputy Commissioner PW 7 that he did not receive any written complaint from the officers concerned
Another intrinsic circumstance which demolishes the case of the appellants about the presence of a mob headed by Satbir Singh and Anil Kumar said to be relatives of respondent is that PW 10 ASI who was accompanying the DC said that he received the information that one of the candidates viz Col Ram Singh alongwith some persons had reached Kalaka polling booth and started intimidating the polling staff and the public
Here this witness is sadly contradicted by the statement of the Deputy Commissioner that the wireless message received by him was not in respect of Col Ram Singh and his men but the message which the DC actually received was that the disturbance was created by one Ajit Singh at the instance of the Congress I candidate
It is therefore impossible to accept the case of the appellants that the respondent and his companions on the one hand and Ajit Singh with a posse of his own men on the other had reached the Kalaka polling booth at almost the same time
Indeed if this had been so there should have been a huge riot and a pitched battle between the two parties but no witness says so
The evidence merely shows that Col Ram Singh had reached the place just after Anil Kumar and Satbir Singh alongwith their men left and after the Presiding Officer had set the matters right
me ASI PW10 also says that 3 4 persons had made a complaint in writing to him but he had not seen those reports on the date when they were made to him but it must be on the file
The witness was shown the file of complaints and he admits thus I have seen the file of complaints which has been shown to me now
That complaint is not in this complaint file
 424 What happened to the complaint received by the witness PW 10 is not known or can be anybody s guess perhaps the same vanished into thin air or may be was non existent
The matter does not rest here but there is one more inherent circumstance which completely falsifies the case of the appellants
The Presiding Officer was shown exhibit P 5 and he stated that he had not mentioned anything in the said document about intimidation of the voters and other persons
He PW 8 categorically states thus  I have seen exhibit P 5
Column No 20 a is to furnish information about Intimidation of voters and other persons 
I have not mentioned anything in this column but have crossed it Indeed if there was any such intimidation being the Presiding Officer he would not have crossed the column regarding the same
He admits that he had served in the Ahir High school which appears to have been patronized by Rao Birendra Singh and the possibility that this witness concealed the truth as appears from his evidence and made a statement regarding intimidation to oblige Rao Birendra Singh cannot be ruled out
This is because he merely denies knowledge that the Ahir School belonged to Rao Birendra Singh but he does not say affirmatively that Rao Birendra Singh had absolutely no connection with the said School
Coming now to the rest of the evidence of RW 1 he says that after the departure of Ajit Singh Col Ram Singh came to the Kalaka polling booth and he was alone at that time
The respondent in the presence of RW 1 told the Presiding Officer that he should not be partial to any party and complained to him about the beating up of his polling agent
Hari Singh PW 8 the Presiding Officer assured the respondent that he would not permit anything further to happen
Thereafter a number of people came there and stoned the polling booth and despite the protests of the witness and the Presiding Officer they tried to snatch the ballot box which was however protected by the Presiding Officer
In the meantime the police party arrived and the people who had gathered there sped away
Much was made by the counsel for the appellants regarding omission of the witness to make any report to the police
But not much turns upon this because the witness clearly admits that as the Presiding Officer was in charge of the whole show he had reported the matter to him who had assured him that he would set things right
A number of 425 questions were put to him which are of not much significance because the answer of the witness was that whatever he had to say he had told his immediate superior the Presiding Officer
It is obvious that KW 1 was neither a police officer nor a person holding any important job but was only a teacher in a school
Perhaps he thought that it was enough if he informed his superior Presiding Officer who would do the needful
The witness also admits that he had told the Presiding Officer about the visit of Ajit Singh and his companions and the trouble created by them but he was told by the Presiding Officer that he had recorded the same in the Diary though in the presence of the witness he did not write any report nor did he handover any report to the police in his presence
The witness then goes on to state that after a few days of the elections the police had obtained an affidavit from his but no attempt was made by the appellants to get that affidavit summoned produced and exhibited in the case and in the absence of that the court is entitled to presume that whatever the witness may have said to the Presiding Officer was contained in affidavit also
RW 2 Deen Dayal who was a member of the polling staff fully corroborates the evidence of RW 1 regarding the arrival of Ajit Singh armed with pistol and accompanied by a number of persons
He further corroborates that some of the companions of Ajit Singh removed the polling agent of Col Ram Singh and then asked the witness and others to handover the ballot papers but as the witness resisted he was beaten up by Ajit Singh and others but on the intervention of the Presiding Officer the matter rested there
Thereafter Col Ram Singh came who was also assured by the Presiding Officer that needful would be done
A capital was made by the appellants before the court below as also here regarding the veracity of this witness because he did not make any report to the DC
Or the SDO about his being beaten up
As already mentioned the witness was merely a teacher and he appears to have been satisfied by the assurance given to him by the Presiding Officer that necessary action would be taken
He further states that the DC Only talked to the Presiding Officer and not to any other member of the polling staff
This shows that the evidence of this witness is true
The next witness on the point is RW 3 Mohinder Singh who was a police constable deputed to the spot to maintain law and order
The sequence of events that happened at the polling booth and which have been deposed to by the witness may be summarised thus 426 1 while the polling was going on between 730 and 800 am Ajit Singh arrived with his companions and tried to create all sorts of trouble
2 After the departure of Ajit Singh Col Ram Singh came alone and was assured by the Presiding Officer that he would not R allow any further trouble to take place
3 After Col Ram Singh had left the place a number of people from the village came and wanted to poll forcibly and 2 3 persons came out of the polling booth with a ballot box
4 He RW 3 snatched the ballot box from the people and returned the same to Dhani Ram RW 4
The witness states that after some time the SDO came there and after having a talk with the Polling Officer he went away
After about half an hour or 45 minutes of the departure of the SDO the DC arrived and on his intervention the polling again started at about 12 mid day
The witness vehemently denied that his statement was recorded by the DC in a tape recorder and said that the voice recorded in the tape recorder which was played to him in court was not his
He even goes to the extent of saying that he did not see any tape recorder with the DC nor did he have any talk with him
The following important points may be noted from his testimony 1 The sequences of events narrated by him gives sufficient strength to the case of the respondent
2 his positive evidence that the voice in the cassette was not his
The witness was afterall a police constable a government official and would not have the course make a false statement before the DC
Moreover evey the DC in his statement has frankly admitted that he was not in a position to identify the voice of this witness or for that matter of others at the time of his deposition
Thus in the eye of law there is no legal evidence at all to prove that the voice Recorded in
the tape recorder was the voice of this particular witness
The next witness is RW 4 Dhani Ram who was also one of the members of tile polling staff and a teacher in a Government 427 Primary School
He fully corroborates the story given by RWs 1 and 3 and also gives the sequence of events referred to above while dealing with the evidence of RW 3
His evidence does not appear to be of much consequence
At any rate the learned High Court has fully discussed his evidence and we agree with the conclusions arrived at by the High Court in this respect
RW 5 appears to be a voter of the Kalaka polling booth
He has been examined to prove the fact that when Ajit Singh and his party came to the booth one Tula Ram who was a polling agent of Col Ram Singh and real brother of RW 5 was beaten up by Ajit Singh and his party and when he tried to rescue him he was also beaten up and their clothes were torn and it was with great difficulty that Mohinder Singh RW 3 who was on duty rescued him and his brother from the clutches of Ajit Singh and his party
He further states that he alongwith his brother Tula Ram went to Rewari to meet Col
Ram Singh and narrated the whole incident to him
In cross examination the witness says that he and his brother had received fists and slaps as a result of which they bled because of injuries on their bodies
He further says that as there was no visible mark of injury they did not get themselves medically examined
He is an unsophisticated villager and once having reported the matter to Col Ram Singh he did not think it necessary to file any complaint with the police
RW 6 Suresh was also a voter waiting in a queue to cast his vote when at about 830 am AJit Singh aimed with a revolver appeared on the scene and entered the booth
He heard hue and cry from inside the booth
He corroborates the evidence of RW 5 about the beating up of Tula Ram and Ram Kishan RW 5
He goes on to state that after about half an hour of the departure of Ajit Singh and his party Col Ram Singh came and after spend about 5 6 minutes inside the booth he drove away
The witness further says in cross examination that the polling did not start after the departure of AJit Singh in view of the commotion that took place there
After the departure of Col
Ram Singh the SDO and the DC also came and ultimately the polling was continued
The witness finally says that he did not inform Col
Ram Singh about the incident nor did anybody enquire from him anything about the same
In these circumstances we do not think that the evidence of this witness is creditworthy
The other witnesses examined by the respondent not in respect of the Kalaka polling booth
428 The picture would not be complete unless we give the other version of the story put forward by the appellants who have also examined many witnesses
PW 8 is the only witness who has identified his voice recorded in the tape recorder by the DC when other witnesses including the DC could not do so
That itself shows that he has leanings towards the appellants
Another important aspect which emerges from the evidence of PW 8 is that according to him the total votes polled in the Kalaka polling booth were 573 the break up of which is as follows between 730 to 845 am 58  12 Noon 200 pm 205  200 pm 430 pm 109 372 This means that if there was any disturbance it would have taken a very short time in view of the calculation given by this witness
If however it is a fact that both parties one led by Ajit Singh and the other led by respondent had a sort of a direct confrontation it would have been extremely difficult for the polling to start only after an interval of an hour and a half
Moreover no explanation has been given by this witness of the votes polled in between 845 to 1030 am
The tally of votes is not consistent with his evidence and is ar
intrinsic proof of the fact that his evidence is not true
The general impression which we gather after perusing his evidence Is that he does not appear to be a witness of truth and therefore we find it difficult to rely on the evidence of this wiriness
Moreover we shall have to say something more regarding the credibility of this witness when we deal with the documentary evidence
PW 10 Sri Krishan was the SDO and Returning Officer tor the Rewari constituency
According to him he remained in his office upto 1000 am and after that he started touring the various polling booths
He goes on to say that on 19582 he reached Kalaka at about 1100 1130 am on receipt of a complaint to the effect that Col Ram Singh alongwith his companions had tried to intimidate the polling staff and the voters
When he arrived at the spot he found the polling at a standstill
This actually supports the case of the respondent that the polling went on smoothly from 800 am to 1100 am 429 and the trouble must have been started either by Ajit Singh or by his men
The poll could not have restarted before 100 to 130 pm because according to the evidence of the DC the polling staff had been interrogated and their statements were tape recorded which would have taken quite a lot of time
This fact intrinsically knocks the bottom out of the case made out by PW 8 regarding timing of the voting
PW 14 Puran is the next witness who does not appear to be of any importance because it is only a case of oath against oath
Moreover a perusal of his evidence shows that this witness ran away after Col Ram Singh is alleged to have threatened him
tie then returned and cast his vote at about 300 PM
Not much turns upon to evidence
Rather his evidence shows that he reached the spot nearabout 300 pm when peace had been restored and the polling had restarted smoothly
More or less to the same effect is the evidence of PW 16 Ishwar Singh with the difference that this witness says that he was assaulted but then except informing the Sl
about the injury he took no further steps
If he was actually injured he would have made it a point to report the fact of his assault to the DC
Or the SDO Or other officers who had assembled after the miscreants had gone away
This obviously he did not do
Lastly he admits that his family was supporting the Congress I candidate Sumitra Bai and therefore h could not be said to be an independent witness
PW 17 Amar Singh was admittedly a polling agent of Sumitra Bai
The witness says that when the DC and SDO came he made a complaint to them in writing which was also signed by Suraj Bhan Mangal Singh Basti Ram and others
He Further says that he had verbally complained to Deep Chand the ASI but he took no action
He states that the DC had however made an enquiry from him but the DC does not say anything about this witness and being a most interested witness it is difficult for us to rely on this witness when the High Court which had the opportunity of watching the demeanour and behavior of this witness Placed no reliance on him
The evidence of PW 18 is almost in the same terms
Like others he also seems to made a written report to the police station which has not been produced and no action seems to have been taken thereon
It is rather strange that a number of witnesses say that they had made an oral or written complaint yet no action was taken thereon which shows that the statement of the witness is a purely cooked up story
430 This closes the evidence so far as the prosecution witnesses are concerned
The learned Judge of the High Court has taken great pains in very carefully marshalling and analysing the evidence and so far as Kalaka polling booth is concerned the findings of the High Court may be extracted thus The evidence of the PWs on this point is not corroborated
The ownership of the motor cycles abandoned by the party of the respondent was not traced
The ownership could be established from their Registration Books
No effort was made to connect those with the respondent or his supporters
This shows that the PWs were drawing upon their imagination to make out stories about the detention of the persons and the forcible polling at that polling station by the res pondent 
When the evidence on the file of the case is given a close look it leads to an inference that the petitioners have failed to prove this part of the charge beyond reasonable doubt
Shri Sri Krishan SDO Civil stated that 34 persons gave him a complaint at Kalaka about the incident
It was a signed complaint
That complaint is not traceable
It was not found in the complaint file
Nor was it entered in the complaint register
That com plaint could throw light on the incident if at all lt had been produced
The oral evidence has failed to convincingly make out this allegation that the voters were threatened at Kalaka
From the overall assessment of the petitioners  evidence and the detailed discussion in the previous paragraphs concerning this polling station it has left an impression in my mind that the role assigned to the respondent has not been proved beyond reasonable doubt
Lot of suspicions which are indicated in the previous paragraphs attach to his evidence and it is difficult to say that the inference in favour of the 431 petitioners  case is irresistible
The evidence of the A petitioners is not of the type which could persuade me to take a decision in their favour
 After going through the evidence very carefully we find ourselves in complete agreement with the conclusions arrived at by the learned Judge of the High Court so far as Kalaka polling booth is concerned
BURTHAL JAT POLLING BOOTH This now brings us to the second and the last limb of the arguments advanced by counsel for the appellants the evidence regarding the corrupt practice in respect of Burthal Jat polling booth for short referred to as Burthal booth 
To prove the allegations the appellants produced PWs 6710 26 to 33 and in order to rebut the case the respondent examined RWs ll 12 13 14 20 and 22
D We would first take up the evidence led by the appellants
PW 6 Krishan Bihari is merely a formal witness who has been examined with the complaint register of No86 Rewari constituency in which both Kalaka and Burthal polling booths fell
His evidence
therefore does not appear to be of any significance
The next important witness is PW 7 the Deputy Commissioner of Mohindergarh District  N Balabhaskar a major part of whose evidence has already been discussed by us while dealing with his evidence relating to Kalaka polling booth
So far as Burthal polling booth is concerned he states that he had received a complaint that a worker of Congress J candidate was attacked by villagers of Burthal Jat and his main purpose to visit the villages was to verify the truth or falsity of the complaint
But when he went to the Burthal booth the polling officer expressly told him that nothing had happened inside the booth
Some of the polling officials who were there however told him that there was some incident outside the polling booth but the identity of the persons responsible for the same had not been established
PW 7 further goes on to say that some villagers at that place told him that the workers of Congress J had come there in a jeep and tried to create trouble and they were able to detain two person and the third one had run away
The DC interrogated those two persons who told him that they had no connection with the jeep
He further admits that he did not interrogate them as to which 432 political party they belonged whether Congress I or Congress J
he further testifies to the fact that a jeep was found at the spot with some sticks lying inside it but he did not see any motor cycle near the polling booth
The persons who were attacked at Burthal by the villagers and whom he did not interrogate for reasons best known to him were Satbir Singh and Anil Kumar
This part of the evidence therefore corroborates the case of the respondent that assuming Satbir Singh and Anil Kumar were companions of Col
Ram Singh but they had undoubtedly been attack at the village and the DC also admits that the Sarpanch to the village Burthal had complaint to him regarding this matter when he reached Burthal Booth
PW 7 then says that at Burthal he recorded the conversation of the Presiding Officer in detail though he admits that some portion of the recorded conversation was erased inadvertently due to his own voice being recorded there
This is all that witness says in respect of Burthal booth
Accepting the entire testimonial as it is without any further comment it is not proved or established as to who was the person  or persons at whose instance the corrupt practice was committed
There WAS however a clear admission by the DC that it was the respondent s party which had been aggrieved
It is rather surprising and intriguing that although the DC had gone to hold a regular inquiry into the irregularity committed at Burthal booth he did not care to interrogate Satbir Singh and Anil Kumar who were present there particularly when as he himself says the Sarpanch of the village had complained to him regarding some trouble
lt seems that PW 7 contended himself merely by recording the statement of the Presiding officer in the tape recorder which was really a dictaphone as told by the witness himself
t  A very important admission has been made by the witness which completely nullifies the statements recorded in the tape recorder
In this connection he states thus I cannot now identify the person whose voices I had recorded in the tape
I also cannot distinguish the name of person whose voice I had recorded after hearing the tape
The witness was cross examined regarding the cassette recorder and he has made the following admissions 433 a that there was no instructions from the Government for recording such conversations as he had done b that even if he was supplied a dictaphone it had to be mainly used by him for recording his own observations in his own voice
c that the cassette and the dictaphone remained all the tine with him and were not deposited by him in the record room
d even a copy of the transcript of the recorded statements prepared by his stenographer was not deposited in the official record room and e that there were some gaps in the recorded tape Ex
P 1 which had been left out and at some places the voice was not clear and audible
PW 7 in his statement says that the statements of the witnesses recorded by him were transcribed by his stenographer under his supervision in his office but he may have temporarily gone out to attend to some other work
This is rather important because if the statements were typed out in his absence it would have been very difficult for his stenographer to find out whose statement he was transcribing which throws a considerable doubt on the credibility of the recorded statement
To a direct question by the court Can you rule out the possibility of tampering with the transcript his answer was I do not think if it was possible
The answer is self evident and frightfully vague so as not to exclude the possibility of tampering
Ordinarily the admissions made by PW 7 would have been sufficient to discard the statements recorded in the tape recorder
We shall however develop this aspect of the matter when we deal with the statements recorded on the tape recorder
The next witness is Shri Krishan SDO PW l
We have already discussed a major part of his evidence while dealing with the Kalaka polling booth and pointed out the serious infirmities from which his evidence suffers
Same comments would naturally apply to his evidence relating to Burthal booth to show that his evidence is not creditworthy
However we shall briefly summarise what he had said about Burthal booth
In the first place he states that when he reached Burthal alongwith DC he saw Satbir and Anil Kumar surrounded by the people of that village
434 He also saw a jeep containing some sticked parked there which was on the instructions of the DC taken into custody by the police
Satbir and Anil Kumar were also taken into custody under the orders of the DC
In support of his evidence he relies on exhibit
P 9 the complaint which was handed over to him by one Mam Chand
The manner in which the complaint was handed over to PW 10 and as to the author of the complaint are rather dubicious particularly in view of the evidence of Mam Chand PW 35
PW 35 was shown exhibit
P 9 and after seeing the same he stated that the same did not bear his signatures
He also deposed that there are two other persons by the name Mam Chand eg there is one Mam Chand who is the son of Kehar Singh and the name of the father of the other Mam Chand was not known to him
It is therefore manifest from the admission of PW 35 that the complaint EXP 9 was merely handed over to PW 10 by Mam Chand but neither the contents were proved nor the maker thereof had been examined
Therefore the complaint is clearly inadmissible as the persons who hands over a complaint cannot be said to be the author of the same
We would therefore have to exclude exhibit
P 9 from the array of the documentary evidence
There is nothing further which this witness proves
PW 26 Shri Mahabir Singh is another witness who has been examined to prove the active participation of Anil Kumar and Satbir Singh
Far from supporting the case of the appellants he supports the case of the respondent
He states that he was a voter and had cast his vote
The learned counsel for the appellants however did not choose to rely on this witness and made a prayer for cross examining him
In cross examination all that PW 26 said was that he was on duty as an election agent of the respondent inside the booth and that he knew Satbir Singh previously but did not know to which place he belonged
Thus the evidence of this witness is of no assistance to the appellants
PW 27 Dharam Vir was a voter and according to his evidence he had gone to cast his vote at about 800 am when near about that time Col
Ram Singh accompanied by 50 60 persons came there and summoned Mahabir and Udai Bhan who were his election agents and told them that he was leaving some persons behind and that they should see to it that no one should be permitted to vote for the Congress I candidate
The witness further states that Satbir Singh was amongst the 15 20 persons left behind by Col Ram Singh
In cross examination he admits that he cannot identify Satbir Singh
It is therefore difficult lo believe as to how he named Satbir Singh as one of the persons left behind by 435 Col Ram Singh
His evidence on this point appears to be clearly A false
The sequence of events mentioned by other witnesses shows that Col Ram Singh had reached there near about 930 am and he had come alone which fact has been supported by an overwhelming majority of witnesses for the respondent
Therefore we find it difficult to place any reliance on this witness and his evidence does not inspire any confidence and must be rejected
The next witness is Thaver Singh PW 28 who also speaks in the same terms as PW 27
We are unable to place any reliance on this witness because he was the most interested witness being a polling agent of the Congress I candidate
During cross examination he stated that he verbally complained to the Presiding Officer about the conduct o Col
Ram Singh but he did not make any compliance to any officer in writing
His evidence therefore carried no weight unless corroborated by some unimpeachable documentary evidence
PW 29 Amir Chand also repeats the same story as PW 28 but there is no evidence to corroborate him
Reading in between the lines of his evidence it appears that he was a strong supporter of Rao Birendera Singh though he does not commit himself in so many words
PW 30 Surjit Singh and PW 31 Raghubir Singh have repeated the same parrot like story as the preceding witnesses
In the absence of any documentary evidence to corroborate their testimony we find it unsafe to rely on their evidence
PW 32 Shamsher Singh is rather an important witness and according to his evidence he went to the Burthal Booth at about 730 am and returned to his house at about 830 am
He then again went to the polling booth at about 230 pm
He admits that he was a polling agent of Smt
Sumitra Bai the Congress I candidates and states that while he was on his way to the booth in the afternoon he met Satbir Singh and Anil Kumar who asked him to support Col
Ram Singh and when he told them that it was one s own choice to support any candidate an altercation took place which was however stopped with the arrival of Mam Chand Ram Singh Kishori and some other people
Thereafter an ASI of police came there in a jeep who intervened in the matter and in his presence also Satbir Singh started uttering abuses
He further says that he found a jeep parked there and people told him that it belonged to Col Ram Singh a statement which is clearly inadmissible
He finally says that when the DC and the 436 SDO came there he informed them of the incident
In cross examination he admits that he made no report in writing to the police that he was beaten up nor did he get himself medically examined
He also did not file any complaint in any court against Satbir and Anil Kumar
In these circumstances we find it difficult to rely on his evidence
Kishori Lal PW 33 says that he was a Chowkidar of the village Burthal Jat
He says that when he had gone to the polling booth at about 230300 pm to cast his vote he found Satbir Singh and Anil Kumar having an altercation with Shamsher Singh PW 32
He rescued Shamsher Singh with the help of some other per sons
The witness being a chowkidar of the village should have immediately reported the matter to the DC
Or the SDO Or the ASI all of whom had come to the spot but he did not do so and kept quiet which speaks volumes against the credibility of his evidence
More or less to the same effect is the evidence of PW 34 Ram Narain who is also a Lambardar of village Kakoria
He says that on the day of the polling at about 230300 pm he had gone to the Village Burthal Jat where he saw an altercation going on between Satbir Singh
Anil Kumar on the one hand and Shamsher Singh on the other
An ASI had also arrived there followed by the DC and the SDO He admits that he had never met Anil Kumar and Satbir Singh nor did he know them before
Although he was an eye witness to the incident of altercation yet he does not say that he had told anything to the various officers who were present at the spot
His evidence therefore does not inspire much confidence
The learned Judge of the High Court who had fully considered the evidence of these witnesses observed thus The time of their arrest as noticed makes the evidence of the petitioners  witnesses in regard to the incident at Burthal Jat very doubtful
The analysis of the evidence led by the petitioners reveals that they have failed to prove this part of the charge of corrupt practice against the respondent
 A bare perusal of the evidence of the witnesses for the appellant clearly reveals that they are not telling the truth and hence no implicit faith can be reposed on their testimony
437 This now brings us to the evidence led on behalf of the respondent
To begin with RW 11 Ravi Datt Sharma who was d Lecturer in Govt
Higher Secondary School Rewari was a polling Officer at Burthal Booth
According to him the polling went on smoothly from 730 am to 430 pm Without any untoward incident
He categorically states that he knew Col
Ram Singh and he respondent did not visit the polling booth on the polling day
He further goes on to state that at about 100 pm the DC and SDM visited the polling booth
On their enquiry the witness told them that everything was going on smoothly
He clearly denies that the DC had recorded any conversation which he had with him in the taperecorder
His evidence however is confined only to the incident that had happened inside the booth and not outside
We do not see any infirmity in his statement as he appears to be an independent and truthful witness
RW 12 Parbhati was a voter of Burthal booth and he testifies to the fact that he had cast his vote at 800 am though he had reached the booth at 730 am After casting his vote he came out and stayed with his co villagers and remained there will 130 or 200 pm
He further states that during this period Col Ram Singh or anybody on his behalf did not come to the booth nor did any quarrel or dispute take place inside or nearabout the polling booth
He further states that Shamsher Singh PW 32 Sarpanch of the village was standing at a small distance with some people and he PW 12 heard some altercation between them
During the course of the said altercation the police arrived at the spot and removed two persons meaning perhaps Anil Kumar and Satbir Singh whom he did not know
Thereafter Shamsher Singh and other villagers returned to the polling booth
In cross examination the only fact which he admits is that Mahabir and Udai Bhan were the polling agents of Col Ram Singh and Shamsher Singh and Thaver Singh were the polling agents of Smt
Sumitra Bai
He categorically states that he did not know Satbir Singh or Anil Kumar and therefore he was not in a position to say whether they were there or not
He also states that at a distance of about 2 killas from the booth a jeep was standing and he did not see any sticks in that jeep and that villagers were saying that BDO and SDO have come there
Since he did not know the DC was also there
He stoutly denied the allegation that Col Ram Singh had come to the polling booth in the morning soon after the start of the polling and that he respondent had left 15 20 persons who had to be removed by the police
It may be noticed at this stage that the suggestion in cross examination itself presupposes 438 and does not dispute the fact that Col Ram Singh had come to the booth only in the morning that is to say long before the arrival of the deceased
This is an important and intrinsic circumstance to show that so far as Burthal booth is concerned the statement recorded on the tape recorder by PW 7 could not have included the respondent and that was perhaps the initial case of the appellants themselves
RW 13 Ami Lal was also a voter of Burthal booth and he says that so long as he was there he did not see Col
Ram Singh nor did any dispute take place either within the polling station or outside
He admits that he saw Shamsher Singh who as the polling agent of Congress I candidate altercating with two unknown persons at a distance of about 100 120 karms
He categorically states in cross examination that he did not see any candidate at the booth on that day
He also testifies that he knew Col Ram Singh since the last election
He further denies the suggestion that Anil and Satbir were threatening the voters
Nothing further of any importance seems to have been elicited from this witness
RW 14 Sheo Chand who as also a voter fully supports the evidence of RW 13 and says that he knew Col Ram Singh whom he did not see passing through the approach road to Burthal Jat
A number of suggestions were made to him which were denied by him and which are hardly of any importance
RW 20 TC Singla is more or less a formal witness who produced certain letters dated 25482 and 30482 written by Col Ram Singh to the Chief Election Commissioner of India containing certain complaints made by Col Ram Singh about the irregularities in the election which are not relevant for our purpose
RW 22 Col Ram Singh is the respondent himself
We shall deal with his evidence relating to both Kalaka and Burthal booths
To begin with he clearly states that the DC PW 7 was not impartial and was working against his interests
Perhaps we may not go to the extent of accepting the apprehensions of the respondent but there is no doubt that the conduct of the DC as revealed in this case leaves much to be desired
According to the evidence of RW 22 at about 845 or 900 AM two of his persons from Kalaka polling booth came to him in a dishevelled condition there clothes were torn and they appeared to have been badly beaten up
They informed him RW 22 that Ajit Singh So 439 Rao Birender Singh accompanied by 50 60 persons had entered the polling booth and beaten them up and that they were indulging in forcible polling
The two persons who came to him in an injured condition were Ram Kishan and Tula Ram both brothers and Tula Ram was his polling agent
On receiving this information the witness rushed to Kalaka and reached there at about 915930 am and after leaving his car at some distance from the polling booth he walked to the booth
He went inside the booth and protested to the Presiding Officer PW 8 and drew his attention to the complaint which he had received from Tula Ram and Ram Kishan
The Presiding Officer verbally assured him that nothing untoward would be allowed to happen
The witness stayed there only for 7 8 minutes and returned to his house and telephoned the police and also sent a written report to the police about the incident
He received a message from the police station at about 1030 am that his complaint had been flashed to the DC to take appropriate action in the matter
This important part of his evidence is fully corroborated by the statement of DC PW 7 that he had received a wireless message from the police authorities to the effect that Ajit Singh and his party were creating trouble at Kalaka booth
The witness categorically states that he did not go the village Burthal Jat  r did he send any of his workers there
This fact is fully corroborated by the intrinsic evidence of the witness recorded by the DC at Burthal where the respondent does not appear to figure or at any rate his statement was not recorded at Burthal which is clear from the tape recorded statement
The rest of his evidence is regarding a number of other factors which are not relevant for the purpose of this case
Reliance was however placed by the appellants that Satbir Singh who was a leading figure at Burthal was an adopted son of Jagmal Singh who was father in law of Col Ram Singh
The witness further clarifies that he had divorced his wife as far back as 1962
Thus when the witness says that he had no relations with Satbir Singh we dare say he is right
A number of questions regarding his domestic matters were put in cross examination but they are not very relevant
As however this witness who appeared before us was examined by us at our instance and was subjected to cross examination by both the parties we shall discuss that part of his evidence a little later when we come to the statement of this witness recorded by PW 7 in his tape recorder at Kalaka polling 440 Thus leaving the tape recorded statement for the time being we adhere to our view expressed in the earlier part of this judgment that the evidence adduced by the respondent seems to be much superior in quality than that adduced by the appellants
The learned Judge of the High Court was also of the same view and had rightly held that the allegations of corrupt practice or of capturing of booth had not been established by the appellants beyond reasonable doubt or to be very accurate by the Standard of proof required to set aside the election of a successful candidate
We might now rush through the relevant documentary evidence produced in this case which has been fully dealt with by the learned Trial Judge and we agree with his conclusions
To begin with exhibit P 5 is the diary of the Presiding Officer of the Kalaka booth
We have already discussed the effect of this document and found that while in column on No 21 relating to interruption or obstruction of poll he PW 8 mentioned Col
Ram Singh putting pressure on polling party and getting bogus votes polled in his favour yet in column
No 20e relating to intimidation etc
 he made no mention of any such incident and crossed the same meaning thereby that there was no intimidation of voters
m e document exhibit P 5 is therefore self contradictory and does not inspire any confidence
The explanation given by PW 8 in his evidence is that while he was filling up column 20 e he did not mention anything as he was greatly perturbed at that time
This is a most implausible and fantastic explanation which apart from being inherently improbable appears to be absolutely absurd
The witness wants us to believe that at the time of filling up column 20 e he was perturbed but in a split second while filling up the very next column ie column 214 he suddenly gathered strength to compose himself and made the observations contained in the said column
As the two entries were supposed to be filled up simultaneously it is impossible to believe that while filling up one entry he was perturbed and while filling up the next entry he was in a composed state of mind
In other words the explanation comes to this his mental state of mind by a miraculous process cooled down and led him to make the observations which he did in column No 214
It seems to us that what had really happened was that the plea of intimidation as alleged by the appellants is a cock and bull story and when the witness was confronted with a contradictory situation and found himself in a tight corner he invented this ridiculous explanation which has to be stated only to be rejected
This affords an intrinsic proof of the fact that no threat or intimidation was given by the 441 respondent or his men during his presence and in order to save his skin the witness may have made the entry in column No 214 subsequently as an afterthought
Thus no reliance can be placed on a witness like PW 8 for any purpose whatsoever
exhibit
P 16 is a certified copy of the FIR No103 lodged by the Presiding Officer implicating Col
Ram Singh and making some allegations
This document also appears to us to be a spurious one as discussed by the High Court
So far as the documents produced on behalf of the respondent are concerned they are R 1 to R 9 consisting of letters written by Col
Ram Singh to various authorities including the Chief Election Commissioner of India complaining about the misuse of powers by the polling officials in the conduct of election
This is all the documentary evidence that matter and in our opinion nothing turns upon these documents
This now brings us to the last and inevitable step of the drama starting with PW 1 and ending with RW22
In order to understand the admissibility credibility and the truth of the statements contained in the cassette we might give a brief summary of the manifest defects and incurable infirmities from which the statements recorded on tape recorder suffer
Our conclusion on this question is arrived at not only after going through the tape recorded statements but also hearing the cassette ourselves in this Court on big amplified speakers
The defectsinfirmities may be pointed out thus 1
The voices recorded at number of places are not very clear ant there is tremendous noise while the statements were being recorded by the DC PW 7 2
A good part of the statements recorded on the cassette has been denied not only by the respondent but also by RWs 1 and 3
No other witness has come forward to depose to the identification of the voice of the respondent or those of RWs 1 and 3 3
There are erasures here and there in the tape and besides the voice recorded being  t very clear it is extremely hazardous to base our decision on such an evidence
One of the important infirmities from which the tape recorded statements suffer 18 the question of custody
PW 7 442 the DC has clearly admitted in his evidence that though he was supplied a tape recorder or a dictaphone but he was not asked by the Government to record the statements on the tape recorder which was really meant for recording his own impressions and not those of the witnesses
However even though PW 7 violated the instructions of the Government he gravely erred in not placing the recorded cassette in proper custody that is to say in the official record room after duly sealing the same and instead keeping the same with himself without any authority
Thus the possibility of tampering with the tape recorded statements cannot be ruled out and this is almost a fatal defect which renders the tape recorded statements wholly inadmissible
PW 7 himself admits that the transcript of the tape recorded statements was prepared in his office under his supervision by his stenographer
He further admits that when the transcript was being prepared he was temporarily absent from his office to attend to certain other works
This appears to us to be a very serious matter because he had no legal authority to leave the recorded cassette with his stenographer who was transcribing the same even for a single moment as the possibility of its being tampered with by his stenographer or by anybody else cannot be safely ruled out
He further admits that even a copy of the trans cript was not deposited in the official record room
One important aspect as part of the manifest defects may now be mentioned
RWs 1 and 3 have denied the identity of their voice in the cassette and therefore that part of the evidence becomes clearly inadmissible
The respondent Col Ram Singh however appears to us to be a truthful upright and straight forward person because while he chose to admit some parts of the tape recorded statement to be in his voice and as being correct but denied the rest he could have if he wanted denied the whole of it
It seems to us that as the respondent was a trained and disciplined soldier he told the truth as far as appeared to him
In fact if he had failed to identify his voice then nothing could have been done and his statement would have been per se inadmissible
As it is the statements on the tape recorder seem to have been recorded in a most haphazard and unsystematic manner without following any logical or scientific method
This will be clear from the fact that the tape recorded statements do not indicate 443 the polling booth where it was recorded the name of the person whose statement was recorded the time of recording etc
A proper methodology which the DC should have followed was to first indicate the place time and name of the person by himself speaking and then recorded the statement
No such scheme was followed and the court is left to chance and conjecture to find out as to when and where and whose statement was recorded
As it is we can only say that the statement of the respondent was recorded only at Kalaka and this fact seems to be admitted by the appellants in their written submissions Vol
III p59 thus  It is not the petitioners  case that Col Ram Singh came to the polling station or polling booth
The petitioners  witnesses PW 27 PW 28 and PW 29 have only stated that Col Ram Singh came to Burthal Jat at 800 am instructed his supporters not to allow any voters to vote for Congress I candidate and thereafter left the place
 It is therefore clear that if at all Col
Ram Singh visited Burthal booth he did it only at 800 am when the DC had not even reached there and therefore the question of recording his statement at Burthal Jat does not arise
In our opinion the best course of action for the DC should have been to record the statements of the respondent and other persons himself in writing instead of recording the same on a taperecorder which has led to 80 many complications
And if he wanted to use a taperecorder he should have taken the necessary precautions to see that too many voices interruptions disturbances are completely excluded
He ought not to have allowed any person to speak while he was recording the statements
Unfortunately this confusion has resulted from his conduct in flouting the instructions of the Government by not using the dictaphone only for recording his own impressions but instead recording the statements of the persons concerned
Thus in short the manner and method of recording the statements in the taperecorder by the DC has resulted in a total mess making confusion worse confounded
PW 7 has not given the details to complete the picture as to what the respondent had done
Therefore the evidence of DC
On this 444 point is conspicuous by the absence of any such description or comments
Indeed the DC has just acted as a silent machine to whatever was recorded instead of applying his mind as to at what stage the respondent denied his voice and where he admitted the same
We should have at least expected the DC to give better details in a case like the present one which as already mentioned entails serious consequences for the respondent if his election were to be set aside
Having regard to the reasons mentioned above we are absolutely satisfied that the tape recorded statements of the witnesses are wholly inadmissible in evidence and at any rate they do not have any probative value so as to inspire any confidence
Hence it is extremely unsafe to rely on such tape recorded statements apart from the legal infirmities pointed out above
That should have closed the whole chapter as far as the tape recorded statement of the respondent is concerned
We shall however mention below a few glaring defects omissions and imperfections 1
some statements said to have been recorded by PW 7 have been flatly denied by RWs 1 and 3 one of whom was a polling officer and the other a constable
A good part of the tape recorded statement has been vehemently and persistently denied by him respondent rightly or wrongly
It is true that the searching and gruelling cross examination of the respondent in this court by Mr Sibbal counsel for the appellants seems to have forced the respondent to admit certain innocuous facts though he might just as well admitted those facts which caused no harm to him
We might mention here that our object in examining the respondent as a court witness in this court and subjecting him to cross examination by both the parties was not to fish out technicalities by putting all sorts of querries and questions relevant or irrelevant
In such a complex state of affairs the statement of the respondent torn from the context cannot form the basis of a judicial decision
Take for instance one statement of the respondent which was repeated to him by Mr 445 Sibbal several times in different forms
The occasion was if the respondent had sent Ram Kishan and Tula Ram or other persons to the police station or he himself had gone there along with them
The respondent admitted that these persons alongwith others had come to his house and complained that they had been beaten up and harassed by the members of the Congress I candidate and also showed in pries on their persons
He repeatedly said that he himself did not go to the police station but sent them there
Perhaps in view of the serious situation arising from the severe altercation that took place between the supporters of Col Ram Singh and those of the other party it is quite possible that on humanitarian grounds he may have personally gone to the police station with the injured persons but as at the time of his deposition he happened to be the Speaker of the Vidhan Sabha he may have felt that his vanity would be injured if he admitted that he himself had gone to the police station
Even if he had given this reply lt would not have improved the case of the appellants
This is just a sample of the questions put by the counsel to him
Another important feature of his evidence is that he tacitly admits at various places that while his statement was being recorded a number of gaps were there a number of other people were speaking together leading to great confusion which must have made him lose his wits
On hearing the entire conversation ourselves we are of the opinion that the statement of the respondent is not coherent particularly because of gaps noises sounds and that the statements was recorded in an atmosphere surcharged with emotions
In this view of the matter we do not consider it necessary to delve deeper into the various statements made by the respondent
It is sufficient to indicate that on the appellants  own case he had not gone to Burthal Booth after 800 am and therefore the DC who reached there at 12 Noon could not have recorded his statement
We are therefore not in a position to hold that implicit reliance should be placed on the evidence led by the appellants
Even if the respondent made some admissions in his unguarded moments that would not strengthen the case of the appellants in view of the standard of proof required in an election matter where the allegations of corrupt practice have to be proved beyond reasonable doubt almost just like a criminal case
It was s urged by Mr Sibbal that in view of our recent decision in Ram Sharan Yadav s supra the impact of the 446 evidence on the court would show that the respondent was lying and that was sufficient to prove the appellants  case
We are unable to agree with the broad interpretation put by the learned counsel on our decision
In fact if we apply the principles laid Ram Sharan Yadav  case the appellants  case must fail at the threshhold
Lastly we might consider the argument advanced before us by the learned counsel for the respondent who submitted that even if the case of capturing of booths as alleged by the appellants against the respondent is made out that would at best be an electoral offence and not a corrupt practice within the meaning of the provisions of the Representation of the People Act 1951
We are however not called upon to go into this question as no clear case of capturing of booths has been made out
The learned Judge of the High Court has dealt with the case of capturing of booths very extensively and has written a very well reasoned judgment annotated with convincing reasons and conclusions
It would indeed be extremely difficult to displace the judgment of the High Court on the ground sought by the appellants
The High Court has considered even the minutest details so as not to invite any comment that the Judge has not applied his mind
Even as regards the tape recorded statements the learned Judge has pointed out several infirmities and defects which despite the ingenious and charming arguments of Mr Sibbal have not been rebutted
On a careful consideration therefore of the evidence circumstances documents and probabilities of the case we are fully satisfied that the appellants have failed to prove their case that the respondent was guilty of indulging in corrupt practices
We therefore affirm the judgment of the High Court and dismiss the appeal but in the circumstances without any order as to costs
VARADARAJAN J  This appeal under section 116A of the Representation of People Act 1951 hereinafter referred to as the Act  is directed against the dismissal of Election Petition No 13 of 1982 on the file of the Punjab  Haryana High Court
The appellants are registered electors of Rewari Constituency No 86 of the Haryana Legislative Assembly
In the election held for that Constituency on 19582 Col Ram Singh 447 hereinafter referred to as the respondent  who contested as the Congress J candidate was declared elected on 2151982 after the counting was over on 20582 defeating has nearest rival Sumitra Devi who is said to be the sister of Rao Birendra Singh and had contested in that Constituency as the Congress I candidate
Sumitra Devi lost by a margin of 8760 votes
The appellants sought in the election petition a declaration that the respondent s election is void under section 100 of the Act
They alleged that there was direct and indirect interference and attempt to interfere on the part of the respondent and his agents and other persons with his consent with the free exercise of the electoral right of the electors
The respondent stoutly opposed the election petition
Alter considering the evidence and hearing the counsel of both the parties the learned Judge who fried the election petition found that the appellants tailed to prove their case beyond all reasonable doubt and dismissed the petition with costs of Rs 2000
Mr Kapil Sibal learned counsel for the appellants 1 confined his arguments in this Court to the instances of corrupt practice alleged in respect of only two polling stations Kalaka and Burthal Jat
It is therefore necessary to confine our attention to the case of the parties in regard to only those instances
The appellants  case in regard to the Kalaka polling station started and continued smoothly until 1030 am on 1951982
But at about 1030 am the respondent came there along With 60 or 70 persons including Desh Raj Ram Krishan and Krishan Lal of Kalaka and Sheo Lal Gujar Rishi Dakot Umrao Singh Raghubir Singh Balbir Singh Gujar Abhey Singh Gujar and Suresh of Rewari
The respondent was carrying a gun while some of those who accompanied him were armed with guns lathis and swords
The respondent and his companions threatened With arms and terrorised the electors Who were waiting outside the polling station to exercise their right to vote as a result of Which Sheo Chand Gurdial Puran Mangal Basti Ram Ishwar and Amar Singh ran away without exercising their right to vote
The restpondent and some other armed persons amongst his companions entered the polling station and brandished their guns towards the Presiding Officer and other members of the polling staff as well as the polling agents of the various candidates and ordered everyone to stand still
They threatened the voters who were in the polling station when they raised objections to their conduct and made them to quit as also
448 the polling agents Amar Singh and Suraj Bhan
The respondent directed a Sikh amongst one of his companions carrying a sword to hit Mangal Singh who strongly objected to the respondent s behaviour and he was accordingly assaulted and injured
One Basti Ram who too objected to the respondent s behaviour was hit by one of the companions of the respondent with the butt of a rifle
Ishwar a Lambardar was also hit by the barrel of a gun
The respondent and his companions snatched about 50 ballot papers from the polling staff at gun point and they were marked in favour of the respondent and put into the ballot boxes after one of the respondent s companions thumb marked the counter foils of the ballot papers as directed by the respondent
Tula Ram Desh Raj Ram Krishan and Krishan Lal and others helped the respondent in marking the ballot papers
The police at the polling station was out numbered and remained as silent spectators
But when a number of people of the village came and additional police arrived the respondent and his companions made good their escape leaving behind two motor cycles bearing registration Nos
ASW 5785 and HRP 534
Two of the respondent s companions were caught by the public and handed over to the police
Suraj Bhan Amar Singh Ishwar Singh and Basti Ram made a report about the incident to the Returning Officer Rewari Constituency at about 12 noon on the same day
On the arrival of the police the Presiding Officer of the polling station lodged a detailed report giving his version of the incident and thereupon FIR No 103 of 1982 was registered by the police
The Deputy Commissioner of the District and the Returning Officer of the Constituency also came to the polling station and made enquiries and tape recorded the statements of some of the concerned persons
The process of polling got disrupted for over one hour and a number of voters had to refrain from voting
It is clear from these facts that the respondent and his companions with his consent attempted to interfere with the free exercise of the electoral right of a large number of electors and the respondent succeeded in his plan to scare away and compel some of the electors to refrain from voting at the election
As regards the incident at Burthal Jat polling station the appellants  case is this  As per his pre planned strategy the respondent visited Burthal Jat village at about 8 am on 1951982 accompanied by 50 or 60 persons including Anil Kumar Satbir Singh Raghubir Sheo Lal Gujar Rishi Dakot Umrao Singh and Balbir Singh Gujar
Many persons including Mahabir Singh Hira Singh Mam Chand Dharam Vir Thavar Singh and Amar Chand gathered there
The respondent told his suporters to ensure that 449 electors who were likely to vote for the Congress I candidate A are not allowed to go into the polling station and that he was leaving behind Anil Kumar and Satbir Singh with 10 or 15 musclemen to help them in preventing electors of the Congress I candidate
A jeep containing lathis and other weapons was left at the disposal of those persons
While leaving the place the respondent told Anil Kumar and Satbir Singh who were on their motor cycle that he was depending upon them and they should ensure that no votes are cast in favour of the Congress I candidate and maximum votes are polled in his favour
Those persons kept on obstructing and threatening the voters who were coming to the polling station to exercise their electoral right
Some of the persons who were thus terrorised were Surjit Raghubir Singh and Lal Singh
When the Sarpanch Shamsheer Singh who came to vote was about to reach the polling station Anil Kumar and Satbir Singh came by the motor cycle and told him that he must vote for the respondent and otherwise he will not be allowed to proceed further
When Shamsheer Singh said that he would vote freely according to his choice Anil Kumar and Satbir Singh assaulted him with sticks and gave him slaps and fish blows
Some respectable persons of the village including Kishori Ram Narian and Lambardar Mam Chand who were present nearby rescued Shamsheer Singh
The Assistant Sub Inspector Kalayan Singh who was on election duty came there by a jeep and seen the fight arrested Anil Kumar and Satbir Singh
The Deputy Commissioner of the District and the Returning Officer Sub Divisional Magistrate also came there and took the jeep along with lathis and other weapons into their custody
Thus it is clear that Anil Kumar and Satbir Singh who are related to the respondent committed the aforesaid corrupt practice at the instance of and with the consent of the respondent
The defence of the respondent as regards the incident in and at the Kalaka polling station is one of complete denial and he contended that if there is any report lodged by Suraj Bhan Amar Singh Ishwar Singh and Basti Ram it must be a manoeuvered affair to create evidence in the election petition and that the report of the Presiding Officer is not his own version but a false document prepared at the instance of the respondent s political opponent Rao Birendra Singh and other state agencies on whom he exercised powerful influence
The FIR No 103 of 1982 dated 1951982 does not support the appellant s case of any interference or attempt to interfere with the free exercise of the electoral right of any elector on the part of the respondent or any one else with his consent and does not directly disclose 450 the commission of any corrupt practice of undue influence
On the other hand the truth is that the men of Rao Birendra Singh captured the booth at Kalaka and the supporters and voters of the respondent were badly out manoeuvered which could be gathered from the fact that whereas Sumitra Devi obtained 484 votes the respondent obtained only 53 votes in that polling station
The allegation that the respondent and some of his companions entered the polling station and brandished their guns at the Presiding Officer and ordered the other polling staff and polling agents of the various candidates to stand still does not attract any provision of the Act regarding the commission of corrupt practice
The allegation that the polling agents Suraj Bhan and Amar Singh were threatened and turned out of the polling station does not constitute corrupt practice as they are not alleged in the election petition to be electors
Mangal Singh Balbir Singh and Ishwar who are alleged to have been assaulted and injured are not alleged in the election petition to be electors of the Constituency and therefore that allegation does not constitute corrupt practice
The allegation that 50 ballot papers were snatched from the polling staff and polled in favour of the respondent does not constitute corrupt practice
The respondent s defence regarding the incident at Burthal Jat is one of complete denial of the allegations in the election petition in regard to that incident but there is no denial of the allegation that Anil Kumar and Satbir Singh are related to him
He has contended that it is wholly incorrect to allege that any jeep with which he had any connection was carrying lathis and other weapons and that it was taken into custody by the officials
The allegation that Anil Kumar and Satbir Singh committed any corrupt practice with or without the consent of the respondent is False malicious and mischivious
Those two persons were falsely implicated in the case under sections 107 and 151 of the Code of Criminal Procedure and a clumsy attempt was made to implicated them By tile subordinate police officials who were under the powerful influence of Rao Birendra Singh whose sister Sumitra Devi was losing and ultimately been defeated by the respondent u Two independent alleged corrupt practices one by the respondent and the other by the others have been clubbed together in the election petition
It is necessary to note all the issues framed by the Tribunal
They are 451 1 Whether the allegations of corrupt practice alleged in the election petition have not been supported by an affidavit If so what is its effect 2 Whether petitioners Nos 2 to 5 have not deposited the security under section 117 of the Representation of People Act 1951 If so what is its effect 3 Whether petitioners Nos 2 to 5 have not complied with section 81 3 of the Representation of People Act by not attesting the copy of the election petition to be true copy under their own signatures If so what is its effect 4 Whether petitioners Nos 2 to 5 have not verified the election petition If so what is its effect 5 Whether allegations of corrupt practice alleged in the petition lack material factslegal ingredients and do not disclose complete cause of action If so what is its effect 6 Whether the allegations of corrupt practice alleged in the election petition are vague and lack full particulars If so what is its effect 7 Whether the averments in paragraph 7 of the petition are unnecessary scandalous frivolous or vexatious and calculated to prejudice a fair trial If so whether the same are liable to be struck out under rule 6 order 16 Civil Procedure Code 8 Whether the respondent himself andor through his agents and other persons with his consent committed corrupt practice of undue influence as alleged in paras 9 to 13 of the election petition or not II so what is its effect The learned Judge of the High Court took up for trial issues 1 to 7 as preliminary issues
By order dated 10121982 he found issues 2 to 6 in favour of the appellants and issue 1 against them but permitted them to carry out certain amendment and remove the defects pointed in his order
He declined to consider issue 7 as a preliminary issue on the ground that evidence is necessary to record any finding on that issue
On the question 452 whether the allegations in paras 9 to 12 of the election petition constitute corrupt practice he held that prima facie they do not disclose any defect in form or substance but they contain material facts and allegations of corrupt practice
It may be noticed that the allegations relating to the incidents at Kalaka and Burthal Jat polling stations are contained in paragraphs 9 to 11 of the election petition
On the issue regarding the corrupt practice alleged in relation to Kalaka polling station the learned Judge held that the Presiding Officer s diary Ex
P 5 appears to have been prepared by the Presiding Officer Hari Singh PW 8 later under the pressure and influence of the defeated candidate Sumitra Devi through her brother Rao Birendra Singh and that FIR No 103 of 1982 dated 1951982 contained in exhibit
P 6 is inadmissible in evidence to corroborate the evidence of PW 8 about the incident of Kalka polling station on the ground that the original report of PW 8 to the police had not been summoned by the appellants
He found that the tape record exhibit
PW 71 prepared by the Deputy Commissioner of Mohindergarh District PW 7 has been tempered with later disbelieving the evidence of PW 7 that a portion of what he had recorded at the Burthal Jat polling station was erased by his own voice inadvertently on the same day
He also found that the authenticity of the transcription of the tape record in Ex
P 1 is not proved with definiteness
He relied upon the evidence addued on the side of the respondent in preference to that of the other side and held that the appellants have failed to prove this item of corrupt practice beyond reasonable doubt
Regarding the incident at the Burthal Jat polling station the learned Judge found that the appellants have failed to prove that Anil Kumar and Satbir Singh are related to the respondent
For coming to this conclusion he relied upon exhibit
P 9 which purports to be a report of Man Chand PW 35 who has however disowned it while holding the Anil Kumar and Satbir Singh were canvassing for their candidate at Burthal Jat as stated by Mahabir Singh PW 26 but it is not made out who their candidate was
He found that the appellants have failed to prove this item of corrupt practice
On the findings recorded by him in regard to these and the other items of corrupt practice alleged by the appellants he dismissed the election petition with costs as stated above
The points arising for consideration in this appeal are 453 1 Whether the incident in and at the Kalaka polling station alleged by the appellants is true and has been proved beyond reasonable doubt 2 Whether the incident alleged in and at the KaLaka polling station does not constitute corrupt practice within the meaning of the Act and 3 Whether the incident at Burthal Jat polling station alleged by the appellant is true and had been proved beyond reasonable doubt Before considering the evidence on record in regard to the incidents at Kalaka and Burthal Jat polling stations it is desirable to note certain provisions in the Act and certain decisions to which the Court s attention was drawn by Mr Kapil Sibal learned counsel appearing for the appellants and Mr PPRao learned counsel appearing for the respondent
Section 87 of the Act relates to the procedure before the High Court and clause 1 thereof reads thus Subject to the provisions of this Act and of any rules made thereunder every election petition shall be ruled by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908 5 of 1908 to the trial of suits
Order 8 rule 1 to 3 and 5 of the Code of civil Procedure relating to written statement read thus 11 The defendant shall at or before the first hearing or within such time as the Court may permit present a written statement of his defence
The defendant must raise by his pleading all matters which show the suit not to be maintainable or that the transaction is either void or voidable in point of law and all such grounds of defence as if not opposite party by surprise or would raise issues of fact not arising out of the plaint as for instance fraud limitation release payment performance or facts showing illegality 454 3
It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages
1 Every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under a disability but the Court may in its discretion require any such fact to be proved
 Section 116 A of the Act relating to appeal against certain orders of the High Court lays down inter alia that an appeal shall lie to the Supreme Court against the dismissal of an election petition under section 98 of the Act
In the present case the election petition has been dismissed by the High Court under that section
Section 116 of the Act relates to procedure in the appeal
Sub section 1 of that section reads thus 116C 1 Subject to the provisions of this Act and of the rules if any made thereunder every appeal shall be heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from any final order passed by a High Court in the exercise of its original civil jurisdiction and all the provisions of the Code of Civil procedure 1908 5 of 1908 and the Rules of the Court including provisions at to the furnishing of security and the execution of any order of the Court shall so tar db may be apply in relation to such appeal
Section 100 of the Act mention the grounds for declaring an relation to be void Section 1001 b reads thus Subject to the provisions of sub section 2 if the High Court 18 of opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent the High Court shall declare the election of the returned candidate to be void
 455 Section 123 of the Act lays down what are corrupt practices A and sub section 2 thereof reads thus 1232 Undue influence that is to say any direct indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right
Instruction 74 of the Instructions to Presiding Officers issued by the Election Commission of India reads thus 74
Preparation of the diary You should draw up the proceedings connected with the taking of the poll in the polling station in the diary to be maintained for the purpose
You should go on recording the relevant events as and when they occur and should not postpone the completion and filing of all entries in the diary till the completion of the poll
You should mention therein all important events particularly   in the form given which is the same as the one in which exhibit
P 5 in this case has been recorded
Mr Kapil Sibal learned counsel for the appellants relied upon certain decisions of the English Courts and of this Court in regard to the admissibility of tape recorded evidence
I shall refer to them
In R vs Maqsud Ali  the following observation has been made The position on the evidence was that a very important part of that evidence was made up by a tape recording taken in circumstances that I must now indicate  
On April 29 1964 the two appellants were at the Town Hall at Bradford and they were taken there into a room   
There is a reason to suppose that both of the appellants were not there on this occasion voluntarily   
In that room there had been set up a microphone behind a waste paper basket which was connected to a recorder in another room  it is almost unnecessary to say that none but the police knew of the presence of the microphone in position   so it ran for just 456 one minute over the hour 
The tape after it had been recorded remained in the custody of the police and there is a suggestion that it was in any way interfered with
The conversation that took place between the two appellants was of course in their native tongue  and    the tape it should now be stated had a number of imperfections 
If the jury could come to the conclusion that here was something which amounted to a confession that they were both involved in the murder it can be seen that this tape recording was a matter of the utmost importance
It was indeed highly important evidence and the defence sought strenuously to keep it out This is not the first time that the question of admissibility of tape recordings as evidence has come before the courts of this country
In 1956 in a trial at Wiltshire Assizes Hilbery J admitted as evidence a tape recording of a conversation in Salisbury Police Station and further admitted a transcript of the recording to assist the jury
We can see no difference in principle between a tape recording and a photograph
In saying that we must not be taken as saying that such recordings are admissible whatever the circumstances but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices provided the accuracy of recording can be proved and the voices recorded properly indentified provided also that the evidence is relevant and otherwise admissible we are satisfied that a tape recording is admissible in evidence
Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case
In R vs Robson  which arose out of a case where the accused was charged with corruption the prosecution sought to put in evidence certain tape recordings
The defence contended that they were inadmissible in evidence as inter alia they were in many places unintelligible
It was however not contended that the tape recordings was inadmissible evidence of what are recorded in them
The originality and authenticity of the tape were left to the jury in that case
In Yusufalli Esmail Nagree vs State of Maharashtra this Court has observed 457 Like a photograph of a relevant incident a contemporaneous dialogue of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act
Reference has been made in that case to Roop Chand vs Mahabir Parshad and Anr
AIR 1956 Punj
173 Mahindra Nath vs Biswanath Kundu  Pratap Singh vs The State of Punjab  and B vs Maqsud Ali In Shri U Sri Rama Reddy Etc
vs Shri VV Giri   a decision of five learned Judges of this Court the following observation made in Yusufalli s case supra has been quoted with approval The contemporaneous dialogue between them formed part of the res gestae and is relevant and admissible under s8 of the Indian Evidence Act
The dialogue is proved by Shaikh
The tape record of the dialogue corroborates his testimony
The process of tape recording offers an accurate method of storing and later reproducing sounds
The imprint on the magnetic tape is the direct effect of the relevant sounds
Like a photograph of a relevant incident a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under s7 of the Indian Evidence Act
 In RM Malkani V State of Maharashtra  this Court observed Tape recorded conversation is admissible provided first that the conversation is relevant to the matters in issue secondly there is identification of the voice and thirdly the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record
A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act
It is res gestae
It is also comparable to a photo graph of a relevant incident
The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act
458 In Ziyauddin Burhanduuain Bukhari vs Brijmohan Ramdas Mehra Ors
197 Suppl
SCR 281 this Court approved the High Court relying upon the tape recorded reproduction of the successful candidates  speeches to voters for holding that he had appealed to them in the name of religion
Mr Rao learned counsel for the respondent relied upon the following four decisions in regard to the proof required in cases where election or returned Candidates is alleged to be void on the ground of corrupt practice
In Chenna Reddy vs RCRao ELR 1972 Vol
40 396 this Court observed This Court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it
In this connection the inherent difference between the trial of an election petition and a criminal trial may also be noted
At a criminal trial the accused need not lead any evidence and ordinarily he does not do 80 unless his case is to be established by positive evidence on his side namely his insanity or his acting in half defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged
The trial of an election petition on the charge of commission of corrupt practice is somewhat different    the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act
Inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version
 In Balakrishna vs Fernandez   this Court observed Although the trial of an election petition is made in accordance with the Code of Civil Procedure it has been laid down that a corrupt practice must be proved 459 in the same way as a criminal charge is proved
In other words the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent
In Sultan Salhuddin Owasi vs Mohd Osman Shaheed and Others
  this Court observed It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt the standard of proof of such allegation is the same as a charge of fraud in a criminal case
C In Ram Sharan Yadav vs Thakur Muneshwar Nath Singh and Others
   this Court observed As the charge of a corrupt practice is in the nature of a criminal charge it is for the party who sets up the plea of undue influence  to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case
This is more so because once it is proved to the satisfaction of a court that a candidate has been guilty of undue influence  then he is likely to be disqualified for a period of six years or such other period as the authority concerned under Section 8 A of the Act may think fit   while insisting on standard of strict proof the Court should not extend or stretch this doctrine to such an extreme extent as to make it well nigh impossible to prove an allegation of corrupt practice
Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process
 In regard to what constitute election offences Mr Rao invited attention to the decision of Ramaswami J in Nagendra Mahto vs The State AIR 1954 Patna where it was stated in the complaint that the criminal revision petitioner before the High Court insisted upon going into the room where the ballot papers were kept though the Presiding Officer had warned him to go out of the room and also the petitioner himself attempted to put the ballot papers to the box of one Nitai Singh Sardar and it has been held that there was proper evidence to record a finding of guilt and sufficient to sustain the conviction under section 131 1 b and section 136 1 f of the Act
460 On the other hand Mr Sibal invited attention to this Court s decision in Ram Dial vs Sant Lal  Ors
1949 Suppl
2 SCR 739 in support of his contention about what is required to be proved in regard to an alleged corrupt practice
After quoting the provisions of section 2 of 46 and 47 Victoria
c 51 three learned Judges of this Court have observed The words of the English statute quoted above laid emphasis upon the individual aspect of the exercise of undue influence
It was with reference to the words of that Statute that Bramwell B made the following observations in North Dursham When the language of the Act is examined it will be found that intimidation to be within the statute must be intimidation practised upon an individual
The Indian Law on the other hand does not emphasise the individual aspect of the exercise of such influence but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause
What is material under the Indian Law is not the actual effect produced but the doing of such acts as are calculated to interfere with the free exercise of any electoral right
Decisions of the English Courts based on the words of the English statute which are not strictly in pari materia with the words of the Indian statute cannot therefore be used as precedents in this country
In the present case we are not concerned with the threat of temporal injury damage or harm
On the pleadings and on the findings of the Tribunal and of the High Court we are concerned with the undue exercise of spiritual influence which has been found by the High Court to have been such a potent influence as to induce in the electors the belief that they will be rendered objects of divine displeasure or spiritual censure if they did not carry out the command of their spiritual head
I shall now consider the evidence relating to the incidents at Kalaka and Burthal Jat Polling stations one after the another
The incident in and at the Kalaka and Burthal Jat polling station consists of two parts namely 1 alleged booth capturing by the respondent and his companions all of them armed with deadly weapons like pistol 461 and sword or kirpan and the polling of bogus votes marked in favour of the respondent after threatening the polling officers and polling agents who were in the polling station with violence and making them to Stand still and 2 the respondent scaring away electors who were standing in the queue outside the polling station awaiting their turn for casting their votes
Regarding the first part of the incident at Kalaka there is the evidence of PWs 7 to 10 12 14 17 and 18 on the side of the appellants and of RW 1 to 6 and 22 on the side of the respondent
PWs 7 to 10 are official witnesses while PWs 12 14 17 and 18 are private individuals
Similarly RW l to 4 are official witnesses while RW 5 6 and 22 are private individuals
Tara Chand PW12 is one of the appellants
He was the polling agent of the Congress I candidate Sumitra Devi who has been referred to at some places in the evidence as Sumitra Bia along with Amar Singh PW17
His evidence is that he retired as polling agent after one hour and PW 17 took over as polling agent and thereafter he was arranging the voters in the queue
He has stated that the respondent and 5 or 7 of his companions all of them armed entered the polling station when he was standing at the gate and they threatened the polling staff at gun point and asked them to stand aside
Thereafter the respondent asked his companions to do their work and they tore off the ballot papers from the bundle and affixed the seal in favour of the respondent and put those ballot papers into the ballot box
The respondent s companions Tula Ram who was his polling agent Ram Krishan RW5 Desh Raj and Krishan Lal put the seals on the counterfoils and the thumb impressions on the counterfoils of the ballot papers
Amar Singh PW17 appellants  polling agent Mangal Singh PW18 and Basti Ram were present
When Mangal Singh PW18 protested the respondent s Sikh companion caused injury to him with his sword at the respondent s instance
When Basti Ram raised objection to the behaviour of the respondent and his companions he was injured with the butt of a gun
The police Men who were present in the polling station did not intervene but some time later the people of Kalaka village and some other police personnel arrived
Then the respondent and his companions fled away abandoning two motor vehicles at the spot
The Deputy Commissioner PW7 and the Returning Officer PW10 came there one hour later
PW7 interrogated the polling staff and tape recorded their conversation
The polling was stopped for over one hour and many people got frightened and went away from the polling station without casting their votes
PW 12 has admitted in his cross examination that he had 462 canvassed for the CongressI candidate for five to ten days prior to the date of poll and had worked as polling agent of Congress I candidates even earlier
He claims to have reported to the police after the completion of the poll and has stated that the police did not send for anybody
He has also stated that he did not see Ajit Singh son of Rao Birendra Singh at Kalaka during the poll
He has denied the suggestion that the Congress I workers beat the respondents polling agent Tula Ram and drove him out of the polling station about one hour of the commencement of the poll
Amar Singh PW17 of Kalaka was the polling agent of Sumitra Devi alongwith PW12
He claims to have taken over as polling agent from Tara Chand PW12 one hour after the commencement of the poll
He has stated that at about 1030 am the respondent came inside the polling station accompanied by 3 or 4 persons
The respondent was armed with a rifle while one of his companions had a sword and the other had a pistol and the rest sticks
The respondent asked PW17 and the polling staff to stand aside and directed his companions to poll votes
Thereupon the respondent s companions took the ballot papers and affixed thumb impressions and marked the ballot papers and put them into the ballot box
When PW18 objected to the high handed behavior of the respondent his Sikh companion thrust the sword at Mangal Singh PW18
When Basti Ram also raised objection the respondent gave him a thrust with the butt of a rifle
PW17 and others who were in the polling station were pushed outside
m e police men who were inside the polling station did not interfere
Some time later the people from Kalaka village and some police personnel arrived and thereupon the respondent and his companions left the place
PW17 and others detained two motor cycles of the respondent s party and T caught hold of two of the fleeing persons and produced the motor cycles before PW7 who came there alongwith PW10
PW17 has denied in his cross examination that Ajit Singh son of Rao Birendra Singh visited the Kalaka Polling station
He has denied the suggestion that he and other Congress I supporters beat Tula Ram and drove him out of the polling station and that he has given false evidence being a sympathiser of the Congress I party
Mangal Singh PW18 of Kalaka has stated in his evidence that when he was in the polling station and his particulars were being checked before he could cast his vote the respondent armed w with a gun and accompanied by 3 or 4 persons one of them armed with a pistol and the other with a sword and the rest with lathis came inside the polling station
The 463 respondent asked PW 18 and others who were in the polling station to stand aside under threat of being killed otherwise
When PW 18 objected to the respondents behavior the respondent asked his men to beat him and turn him out of the polling station
Thereupon the respondent s Sikh companion thrust the tip of his sword near his right foot
When Basti Ram who was behind RW 18 protested against the behavior of the respondent and his companions the respondent caused an injury to him with the butt of a rifle
Later the people of Kalaka village and some police personnel arrived and the respondent and him companions ran away
PW 18 and others informed PW 10 and the police about what happened
PW 18 has admitted in his cross examination that he had canvassed for the Congress L candidate but he has denied the suggestion that he has always been helping the Congress I Party and has therefore given false evidence
Hari Singh PW8 who was a teacher in one of the Ahir Educational Institutions was the Presiding Officer at the Kalaka polling station
He has stated that at about 1030 am until which time the polling went on smoothly the respondent accompanied by some other persons reached the polling station and came into the polling station along with four or five persons carrying a small gun with him while one of his companions was carrying a pistol and another a sword and the others sticks
The E respondent who appeared to be in a rage pointed the gun towards PW8 and others saying that the remaining votes should be polled
The respondent s companions snatched ballot papers from the officials in the polling station and tore off about 25 or 26 ballot papers and marked them in favour of the respondent and put them into the ballot box
They put their thumb impressions on the counter foils of the ballot papers
There was noise outside when the respondent and his companions were inside the polling station
The respondent and his companions went out the polling station after 25 or 26 ballot papers had been put into the ballot box as stated above
Soon after the respondent and his companions left the place a Sub Inspector of Police came there
PW 8 was writing the report when PWs7 and 10 accompanied by the Superintendent of Police arrived
After completing his report PW 8 got it signed by all the polling staff and handed it over to PW 7 and he recorded his statement
P 5 is the diary prepared by PW 8 in accordance with Instruction 74 of the Instructions to Polling Officers given by the Election Commission of India
PW 8 had deposited Ex
P 5 along with the other records in the Election Office
He has stated the Ex
P 5 was prepared by him 464 and that it is correct
In his cross examination he has stated that nee dose not know if the High School run by the Ahir Education Board where he was employed since 1972 does or does not belong to Rao Birendra Singh
He has denied that he and the members of his family had been supporting Rao Birendra Singh in the elections
he has admitted that he has not mentioned anything in column 20 E of Ex
P 5 relating to intimidation of voters and other persons except crossing it and has stated that it is because he was very much perturbed at that time
Reference will be made in detail later to the contents of the Presiding Officer s diary Ex
P 5 and the report of PW 8 to the police contained in exhibit
P 6 on the basis of which FIR No 103 of 1982 dated 1951982 had been registered by Dharam Pal PW9 Assistant Sub Inspector of police on 1951982
Suffice it to say at present that reference has been made in Ex
P 5 to the respondent putting pressure on the polling staff and getting 25 or 26 bogus votes polled in his favour when there was a lot of noise and commotion in the polling station from 1030 to 1130 am as a result of which the polling had stopped
In his report the police also PW 8 has stated that the respondent armed with a pistol came inside the polling station along with four or five his companions named one of them with a sword and the others with sticks and hurled abuses and forcibly polled about 25 or 26 ballot papers at gun point on account of which he could not stop them from doing so
The Assistant Sub Inspector of police PW9 who had been posted at Sadar Rewari police station on 1951982 has deposed about the registration of FIR No 103 of 1982 on that day on the receipt of a rukka from Sub Inspector Deep Chand
He has stated that the FIR Ex
P 6 is in his hand writing and that it is correct according to the material on the basis of which it has been registered
He has not been cross examined about the registration of FIR No 103 of 1982 dated 1951982
Bala Bhaskar PW7 the Deputy Commissioner of Mohindergarh was District Election Officer for the election to the Haryana Legislative Assembly held in May 1982
He has stated that when he was travelling by car at about 1030 am between Monoddola and Zainabad villages in the course of his visits to some of the polling stations in the Rewari Constituency on 1951982 he received a wireless message to the effect that the respondent had complained against Congress I workers saying that 40 or 50 of them had attacked Congress J workers at Kalaka
PW 7 reached Kalaka polling station at 1230 pm after instructing the police over the wireless to take action on 465 that complaint of the respondent
When he reached Kalaka polling station he received oral complaints about the detention of a motor cycle belonging to the workers of the Congress J party
He went inside the polling station and tape recorded the conversations with the officers in exhibit
PW 71 of which Ex
P 1 is the transcript prepared under his supervision
He has stated that he compared the transcript Ex
P 1 with the original tape record and found it to be correct and that it bears his signature by way of authentication
He has admitted that there are some gaps in exhibit
P 1 as the voices in the tape were not clear and audible
He has stated that the tape record remained in his custody throughout and was not tampered with either himself or by anyone else and that it contains the voices of the Presiding Officer PW8 the polling officer Roop Chand RW7 and the Police Constable Mohinder Singh RW3 whose number is 498
Reference will be made later to the contents of the tape record and to the report Ex
P 2 submitted by PW 7 to the Government about the incident which took place on 1951982 during the elections as it had come to his notice
In his cross examination PW 7 has admitted that he could not now identify the persons whose voices were recorded in the tape and that the tape is Government property which had been issued to him by the Government and that the tape recorder remained with him all the time and the tape recorder and tape record and the transcript Ex
P 1 had not been placed in the record room
It has to be noticed that the respondent RW 22 has admitted in his evidence that though he had made several reports to the Election Commission and other Election Authorities before and after the election with which we are concerned in this appeal he had not made any report against PW 7
Shri Krishan PW 10 was the Sub Divisional Officer Rewari and Returning Officer for the Rewari Constituency in the election held to the Haryana Legislative Assembly in May 1982
In the course of his tour of the Constituency after 10 am
On 1951982 he reached Chalky polling station at about 11 or 1130 am
On receipt of a complaint from the polling station to the effect that the respondent alongwith some other persons intimidated the polling staff and the public at that polling station
He was with PW 7 when he reached Chalky polling station and he found the polling at a stand still at that time
When he reached Chalky polling station the Station House Officer of Sadar Rewari was present there alongwith a Head Constable and some other police personnel
The Deputy Commissioner PW7 conducted an enquiry and interrogated the polling staff and the 466 police personnel and tape recorded their conversation
One of the polling officers told PW 10 that the polling agents were turned out by the respondent and his companions and that a bundle of ballot papers was taken away and the ballot papers were marked and put into the ballot boxes and that the voters who were in the polling booth were turned out
He found two motor cycles stranded near the polling station
It is seen from his evidence that he was transferred from the Rewari Sub Division on 161982 and that a file had been handled in a way different from the one in which it had been handled until he handed over charge of his office
He has denied the suggestion that the file was created in a particular manner by insertion of some papers for fabricating evidence in favour of the appellants
It has to be noticed in this connection that the respondent had complained exhibit
R7 dated 451982 that PW 10 is married in the locality and was interfering with the election
On the other hand it is the evidence of Roop Chand RW1 who was Steno Typist in the office of the Project Officer Agricultural Department in Haryana and the alternate Presiding Officer in Kalaka polling station on 195182 that after the polling started at 730 am
Ajit Singh son of Rao Birendra Singh came to the polling station at about 830 am armed with a rifle and accompanied by 15 or 20 persons and asked for the respondent s polling agent Tula Ram and that Ajit Singh s companions pushed Tula Ram out of the polling station
Ajit Singh remarked that the polling at the Kalaka polling station had always been one sided and directed his companions to poll votes
When the polling staff resisted Ajit Singh abused RW1 and others and asked his companions to beat them and they slapped the polling staff
Ajit Singh s companions picked up some ballot papers and tore them off from their counter foils and put them into the ballot box for about on hour and left the polling station thereafter
The respondent came to the polling station about one hour later and told the Presiding Officer PW8 that he should not be partial to any party and he came to know that his polling agent had been beaten and that bogus votes had been polled in the polling station
Thereupon PW 8 assured the resondent that he would not permit anything of that sort to be repeated
About half an hour after the departure of the respondent from the polling station many people of Kalaka village gathered at the polling station and proclaimed that they would poll votes forcibly
When RW 1 and others resisted and collected the voting material those persons beat the polling staff and snatched the voting material and in the struggle which ensued PW 8 was 467 dragged upto the door of the polling station and was rescued by the police men on duty
Since the police present in the polling station could not pursuade the crowd to disperse polling was stopped at about 1015 am and PWs 7 and 10 arrived there subsequently and arranged for the polling to restart after making the electors to stand in a queue
He has denied that PW 7 asked for his name and profession and that he told him that he was Roop Chand and a Stenographer
He has stated that he asked PW 8 to record the visit of Ajit Singh and his companions into the polling station and that PW 8 told him that he has recorded it in his diary
The appellants  case regarding forcible polling by the respondent s companions at his instance and the tape record was put to RW 1 and has been denied by him
He has admitted that a few days after the election the police obtained an affidavit from him on judicial stamp paper but he has denied that it was done under pressure of the respondent
Deen Dayal RW2 a teacher was the polling officer along with Dhani Ram RW4 who is also a teacher
He has stated that after the polling at the Kalaka polling station went on peacefully for about an hour Ajit Singh armed with a pistol came with 15 or 20 persons at about 830 am and entered Kalaka polling station forcibly and asked for the polling agent of the respondent and told his companions to remove him from there
Ajit Singh asked his companions to beat RW 2 and others and they were accordingly beaten and PW 8 told them to allow Ajit Singh s companions to do whatever they liked and thus avoid being beaten saying that he would make a complaint about the Latter
Ajit Singh and his companions polled bogus votes for about half an hour and left the polling station
The respondent came there half an hour later and told PW 8 that he had been informed that his polling agent had been beaten and that bogus votes had been polled and protested against it to PW8
PW8 told the respondent that whatever had happened and that he would conduct the poll in a proper manner thereafter
About half an hour after the respondent left the place the people of Kalaka village came in a crowd and entered the polling station and told the polling staff that they would poll votes forcibly in favour of Sumitra Devi
When the polling staff refused to act according to their desire they beat them and try to snatch the ballot box from RW 4
Meanwhile Constable Mohinder Singh RW 3 came inside the polling station wrested the ballot box from the crowd and placed it at its original place
Soon thereafter a Sub Inspector of Police and some other constables came and tried tc remove the crowd from the polling station
About half an hour later PW 10 468 came there and left the place after talking with PW 8
PW 7 came there about half an hour thereafter and directed PW 8 and the polling staff to conduct the polling properly and polling started again at about 12 noon
He had stated in his cross examination that he did not make any report either to the police or to PWs 7 and 10 though slaps and fist blows had been given to him by the miscreants but he asked PW 8 after PWs
7 and 10 left the place as to whether he had reported about the maltreatment meted out to polling officers and he answered in the affirmative
He has stated that PW7 talked only to PW 8 and to no other polling staff and did not tape record any conversation in his presence and that he does not know if PW 7 had talked with the police constable who was posted at the polling station
He has denied that Ajit Singh had not come to the polling station at all and that no incident of the kind stated by him took place in the polling station
Mohinder Singh RW 3 who was on duty as a police constable at Kalaka polling station on 1951982 has stated that about half an hour after the polling started at 730 am he heard shouts that Ajit Singh had come and saw Ajit Singh armed with a pistol coming in to the polling station along with 15 or 20 persons and that inspite of the fact that he obstructed 2 or 3 companions of Ajit Singh pushed the respondent s polling agent out of the polling station and stated beating him and he rescued him
He also stated that he does not know what Ajit Singh and his companions did inside the polling station where they remained for about 30 to 45 minutes and that the respondent come there by a motor oar with 2 or 3 persons about half an hour after Ajit Singh and his companions left the place and left the place 2 or 3 minutes later after go mg inside the polling station
He has further stated that about half an hour thereafter about 50 to 60 persons came from Kalaka village and entered the polling station forcibly and snatched the ballot boxes after beating the polling staff and they were turned out of the polling station by Sub Inspector Deep Chand and some police constables who arrived there some time later
He has stated that PW 10 come there about 30 or 45 minutes thereafter and left the place after talking with PW 8 and that PW 7 arrived there about 30 to 45 minutes after PW 10 left the place and talked to the polling staff and arranged for the polling starting again at about 12 noon
He has denied in his cross examination that PW 7 had any talk with him in the polling station and has stated that he did not make any report about the incident or the treatment meted out to him by Ajit Singh and his companions though the respondent s 469 polling agent was bleeding and his clothes were torn
He has denied that the voice recorded in the tape exhibit
PW 71 put to him is his voice and also that PW 7 interrogated him and he made a statement
The appellants s case of forcible polling by the respondent s men was put to RW 3 and has been denied by him
The evidence of RW 4 is more or less the same as that of RWs 1 to 3 as regards the alleged forcible polling of bogus votes by Ajit Singh and his companions
He too has stated that at the instance of PW 7 who arrived there about half an hour after PW 10 left the place after talking to PW8 the polling started again
He has admitted in his cross examination that PW 8 had some conversation with PWs 7 and 10 but he has denied that the respondent came to the polling station armed with a revolver and accompanied by 15 to 20 persons and got some votes polled at gun point and ran away along with his companions on the arrival of the police and the villagers
Ram Krishan RW 5 the brother of the respondent s polling agent Tula Ram who has not been called as a witness admittedly supported the respondent in the election held in May 1982
He has stated that t he went to the polling station for casting his vote at about 730 am when the polling started and that Ajit Singh armed with a pistol came to the polling station at about 830 am accompanied by 40 or 50 persons and entered the polling station with 15 or 20 persons
Some persons who entered the polling station along with Ajit Singh dragged Tula Ram out of the polling station and beat him and when he intervened they started beating him also as a result of which his clothes got torn and he was rescued by the police constable RW 3
He went with his brother by his scooter to Rewari and reported to the respondent about the incident and leaving Tula Ram at Rewari he came along with the respondent and 2 or 3 other persons by a motor car to Kalaka village where the respondent went into the polling station and left the place 5 or 7 minutes later for Rewari
He has stated in his cross examination that both himself and his brother Tula Ram bled from different parts of the bodies because of the injuries sustained by them and that they did not however get themselves medically examined or make any complaint to any authority because there were only abrasions from which there was some bleeding
It is seen from his evidence that Tula Ram who has not been examined is alive and is in service as a Clerk in some department at Chandigarh where the election petition was tried
470 Suresh RW 6 has stated that when he reached Kalaka polling station at 830 am in May 1982 Ajit Singh armed with a revolver came there with 40 to 50 persons and went inside the polling station with about 15 to 20 persons
The respondent s polling agent Tula Ram was dragged out of the polling station and beaten
When RW 5 rushed for his help he too was beaten and was rescued by a police constable who may on duty at the polling station
The respondent came there by a car about half an hour after Ajit Singh and his companions left the place and went away after remaining in the polling station for about 5 or 6 minutes
The appellants  case of forcible polling by the respondent s men had been put to RW 6 and denied by him
He too has stated in his cross examination that PW 7 and 10 came to the polling station after the respondent left the place and that on their intervention polling restarted and the people started forming a queue and he himself cast his vote thereafter
The respondent RW 22 has stated that when he was in his house at Rewari on 1951982 after deciding not to go out of the house on that day RW 5 and his polling agent Tula Ram came there at 845 am from Kalaka polling station with their clothes torn and appearing to have been beaten badly and told him that Ajit Singh accompanied by 50 or 60 persons entered the polling station and beat them and indulged in forcible polling and that he thereupon went by a car to Kalaka village alongwith RW 5 at about 915 or 930 am
On that day
Leaving his car at some k distance he walked to the polling station and found 50 or 60 villagers collected there and he entered the polling station protested to PW 8 and brought the complaint given to him by RW 5 and Tula Ram to his notice
After PW 8 assured him that nothing of that sort will be allowed to happen in the remaining part of the day he returned from Kalaka 7 or 8 minutes later and sent a written report to the police about the incident with copies to PW 7 and the election authorities and received a message from the police station at 1030 am that his complaint had been flashed to PW 7 by wireless message and that appropriate action was expected to be taken soon
He has further stated that in his letter exhibit R 7 dated 451982 he requested for the appointment of an observer because of official interference and had stated that PW 10 was married in that area and was interferring in the election
He has stated in his cross examination that FIR No 103 of 1982 was connected at a later stage at the instance of Rao Birendra Singh
He was the Speaker of Haryana Legislative Assembly until the first meeting of the newly constituted Legislative Assembly was held after the election held on 471 1951982 and after having succeeded in the election as a Congress J candidate he joined the Congress I Party and is now the Transport Minister
He has admitted that he is not made any mention in any of his complaints sent to the Chief Election Commissioner and other election authorities prior to 1951982 that PW 7 was acting in any way against him in a prejudicial manner
He has admitted that he has not stated in his written statement that he complained to the police in writing about the incident in Kalaka polling station and had sent copies thereof to the Election Commissioner and PW 7
He has stated that he did not make any complaint naming Ajit Singh specifically about the incident at Kalaka because the picture was not clear to him at that time and not because such an incident never happened
The appellants  case of booth capturing and bogus polling by the respondent in Kalaka polling station had been put to RW 22 and denied by him
The tape record exhibit PW 71 was played before him and he has stated that it does not contain his voice and that it is rather the voice of Rao Birendra Singh
The oral evidence of RWs 1 to 6 that Ajit Singh came along with some of his companions and dragged out Tula Ram from Kalaka polling station and beat him and that they snatched ballot papers and ballot boxes and got bogus votes polled in that polling station and the evidence of RW 22 that RW 5 and Tula Ram came and told him that Ajit Singh accompanied by 50 or 60 persons entered the polling station and beat them and indulged in forcible polling cannot be accepted for two important reasons namely that no such plea had been put forward in the written statement of the respondent where no doubt he has stated vaguely that the men of Rao Birendra Singh captured the booth at Kalaka and the supporters and voters of the respondent were badly out manouevered and it could be gathered from the fact that whereas Sumitra Devi had obtained 484 votes he had obtained only 53 votes in that polling station and not that Ajit Singh and his companions came to Kalaka polling station and indulged in forcible voting or that they beat RW 5 and his brother Tula Ram
The respondent has denied in his written statement that the process of polling got disrupted for over an hour at Kalaka polling station and that a number of voters had to refrain from casting their votes but as mentioned above it has been admitted by RWs 1 to 4 that the polling was suspencial at Kalaka polling station on 1951982 and that it re started after the arrival of PWs 7 and 10 at the polling station some time after the departure of the respondent and his companions
though the case 472 of the respondent that there was forcible polling at the Kalaka polling station by Ajit Singh and his men cannot be accepted for want of any such plea in the written statement Mr Sibal was justified in requesting the Court to accept the admission on the part of the respondent s witnesses that there was forcible polling at the Kalaka polling station in the morning of 1951982 and that the polling got disrupted as a consequence thereof and that it was recommended after the arrival of PWs 7 and 10 and to reject their evidence that Ajit Singh and his men were the cause
Under instruction 74 of Instructions to Presiding Officers issued by the Election Commission of India extracted above the Presiding Officer is bound to draw up the proceedings connected with the taking of the poll in the polling station in the diary to be maintained for the purpose in the form in which exhibit
P 5 had been filled up by the Presiding Officer PW 8
The Presiding Officer is directed by the instruction to go on recording the relevant events as and when they occur and not to postpone the completion and filling of all the entries in the diary to the completion of the poll and he has to mention therein all the important events
Even the alternate Presiding Officer RW 1 has stated in his evidence that the Presiding Officer PW 8 told him that it was his duty to report about the incident and he would do so
It is seen from Column 18 of Ex
P 5 relating to the number of votes polled that 195 votes were polled from 8 am to 10 am 205 from 12 noon to 2 pm 1063 from 2 pm to 4 pm and to on upto 430 pm and that in the disputed period from 10 am to 12 noon only 51 votes were polled
In column 21 it is stated that the polling was interrupted and disrupted by rioting and open violence and that from 1030 am to 1130 am the respondent put pressure on the polling party and got 2526 bogus votes polled in his favour and there was a lot of noise and commotion outside
In column 22 relating to the question whether the poll was vitiated by any ballot paper being unlawfully marked by any person and deposited in the ballot box it is stated that 4 or 5 persons who came with the respondent snatched ballot papers and forcibly put them into the ballot boxes
The Presiding Officer PW 8 who has deposed about the incident has stated in his evidence that ExP 5 is the diary which he submitted after the poll that it was prepared and signed by him and is correct and that he deposited it along with the other records in the election office
As stated earlier what has been elicited in his cross examination is that apart from crossing column 20E relating to intimidation of voters and other persons he has not 473 mentioned anything in that column and that he failed to fill up that column in full because he was very much perturbed at that time
It has not been suggested to PW 8 that he had prepared Ex
P 5 later under the pressure and influence of the defeated candidate Sumitra Devi through her brother Rao Birendra Singh
Nor is there any positive evidence to that effect on the side of the respondent
Therefore it is not known on what basis the learned trial Judge has observed in his judgment that Ex
P 5 appears to have been made up by PW 8 under the pressure and influence of the defeated candidate Sumitra devi through her brother Rao Birendra Singh
In the absence of any material on record or even a suggestion to that effect to the Presiding Officer PW 8 who has stated that he filled it up correctly and deposited it alongwith the other records in the election office it is not possible to agree with the view of the learned trial Judge that Ex
P 5 has been got up later by PW 8 under the pressure and influence of the defeated candidate Sumitra Devi through her brother Rao Birendra Singh
P 5 a contemporaneous document prepared by the Presiding Officer PW 8 as required by Instruction 74 supra and deposited by him in the election office after the poll was over alongwith the other records is a very valuable piece of documentary evidence corroborating the oral evidence of the Presiding Officer PW 8 and other witnesses examined on the side of the appellants who have deposed about the first part of the incident in the Kalaka polling station
The next contemporaneous document corroborating the oral evidence of PW 8 is the copy of the report of PW 8 to the police appended to FIR No 103 of 1982 exhibit
P 6 dated 1951982 prepared by the Assistant Sub Inspector of Police PW 9 on receipt of a rukka from the Sub Inspector of police Deep Chand
PW 9 has stated that it is in his hand writing and correct according to the material on the basis of which it was registered
Ag stated earlier PSHAW
9 has not been cross examined as regards the FIR contained in exhibit
The learned trial Judge has rejected exhibit
P 6 as being inadmissible in evidence for corroborating the evidence of PW 8 about the incident in Kalaka polling station on the ground that the original report of PW 8 to the police had not been summoned by the appellants
It is no doubt true that the original had not been summoned by the appellants before PWs 8 and 9 deposed about exhibit
P 6 in their evidence
PW 8 has stated in his evidence that when he was writing the report soon after the Sub Inspector of police came to the polling station after the respondent and his companions had 474 left the place PWs 7 and 10 accompanied by Superintendent of police came there and that after completing that report he got it signed by the polling officials and handed it over to the police officer and he recorded his statement
It is stated in the copy of PM in complaint to the police appended to exhibit
P 6 that at about 1030 am when the polling was going on smoothly the respondent came into the polling station armed with a small pistol and accompanied by 4 or 5 persons one of the armed with a sword and the others with sticks and hurled abuses and forcibly polled about 2526 ballot papers at gun point on account of which PW 8 could not stop them from doing 80
He also stated that the polling staff was threatened with danger to their lives and therefore they kept standing there for some time and that the companions of the respondent dragged the polling agent PW 17 of Sumitra Devi and appropriate action may be taken by the police
It is seen from the record that the appellants had taken steps to summon FIR No 103 of 1982 dated 1951982 and the Head Constable of Sadar Rewari Police station to prove the incident at Kalaka
The record further shows that the respondent also had applied for summoning the orders of Court disposing of FIR No 103 of 1982 as also FIR No 104 of 1982 to which reference will be made in the course of the discussion relating to the incident at Burthal Jat polling station
The respondent had also applied for summoning the Inspector of Police Kedar Singh to appear with the relevant records showing the disposal of the above two FIR
But subsequently he filed CMP 31 E of 1983 for substituting and their person in the place of Inspector Kadar Singh and though that petition was opposed by the appellants the trial Court allowed the petition on the same day ie 2121983 itself
The appellants also had filed CMP 41E of 1983 for summoning the file relating to those two FIRs from Sadar Rewari Police station
That application was dismissed by the learned Trial Judge on 2521983
Thus it is seen that the appellants who had doubt not taken steps for summoning the original complaint given by PW 8 to the police at the Kalaka polling station in the first instance probably because the respondent himself had originally sought the production of the relative records from the police station had later taken necessary steps to summon the original complaint as also to recall PW 8 for deposing about that fact
In these circumstances I find that the necessary foundation must be held to have been laid for adducing secondary evidence by way of the copy appended to FIR No 103 of 1982 Ex
P 6 and that the appellants are therefore entitled to adduce secondary evidence of the contents of that complaint
The complaint of PW 8 to the police given immediately after the incident was over and soon 475 after the arrival of the police personnel and the officials PWs 7 and 10 and the Superintendent of Police is another contemporaneous document and a valuable piece of documentary evidence corroborating the evidence of PW8 and other witnesses examined on the side of the appellants to prove the first part of the incident in the Kalaka polling station
The third piece of documentary evidence let in by the appellants for proving the first part of the incident in the Kalaka polling station is the tape record exhibit
PW 71 of which exhibit Pl is a transcript prepared under the instructions and mostly in the presence of PW 7 by his Stenographer
PW 7 has stated in his evidence that inside the polling station at Kalaka he tape recorded the version given by the officers about the incident in that polling station in exhibit
PW 711 and he compared the transcript Ex
P 1 prepared by his Stenographer with the original and found it to be a correct reproduction of the original and he has authenticated it by signing it and that there are some gaps in exhibit
P 1 as the voices in the tape were not clear and audible
He has also stated that the tape recorder which had been supplied to him by the Government the tape exhibit
PW 71 and the transcript Ex
P 1 remained in his custody throughout and had not been deposited by him in the election office
He has not been questioned as to why he retained the tape the tape recorder and the transcript in his custody without depositing them in the election office
Therefore no adverse inference can be drawn against PW 7 or the appellants from the fact that the tape the tape recorder and the transcript had not been deposited by PW7 in the election office
No suggestion has been made to PW 7 in cross examination that he had in any way tampered with the tape record exhibit
PW 71 and he has stated in his examination in chief that a portion of the tape relating to the incident at Burthal Jat polling station has been erased inadvertently by his own voice
The learned trial Judge has rejected the tape record exhibit
PW 71 holding 1 that it is tampered with later disbelieving the evidence of the PW 7 that a portion of what he had recorded at the Burthal Jat polling station was erased by his own voice inadvertently on the some day and 2 that the authenticity of the transcript exhibit
P1 has not been proved with definiteness
It is not reasonable to reject the tape merely because some portions thereof could not be made out on account of noise and interference not only outside but also inside the polling station when what was being elicited by PW 7 from the polling officers and the police man RW 3 was being H recorded
In R vs Maqusud Ali supra tape recorded conversation of the two accused in a murder case has been held to be 476 admissible in evidence for the purpose of proving the guilt of the accused and it has been observed that the tape recording was a matter of the utmost importance and that it is indeed the highly important piece of evidence which the defence strenuously sought to keep out
In R vs Robson supra in which reference has been made to K vs Maqusud Ali supra tape recording had been held to be admissible in the case in which the accused was charged with corruption rejecting the plea of the defence that it was inadmissible inter alia because in many places it was un intelligibIe though it was however not contended that the tape recording was as such inadmissible in evidence of what was recorded on it 
It is clear from these and the other decisions of this Court referred to supra that tape recorded evidence is admissible provided that the originality and the authenticity of the tape are free from doubt
In the present case there is no valid reason to doubt them
In Shri N Sri Kara Reddy etc
vs Shri VV Giri supra referred to above a bench of five learned Judges of this Court has held that the contemporaneous dialogue tape recorded in that case formed part of res gestae and that it is relevant and admissible under sections 7 and 8 of the Evidence Act
If it is res gestae it is admissible in evidence even under section 6 of the Evidence Act illustration 1 where of reads thus A is accused of the murder of by beating him
What ever was said or done by A or B or the by standers at the beating or so shortly before or after it as to form part of the transaction is a relevant fact
The following passage in regard to incidents forming part of the res gestae is found in para 509 of Halsbury s Laws of England Vol 15 Third Edition There are many incidents however which though not strictly constituting a fact in issue may yet be regarded as forming a part of it in the sence that they closely accompany and explain that fact
In testifying to the matter in issue therefore witnesses must state them not in their barest possible form but with a reasonable fullness of detail and circumstance g
These constituent or accompanying incidents are said to be admissible as forming part of the res gestae h
When they consist of declarations 477 accompanying an act they are subject to three qualifi cations 1 they must be contemporaneous or almost contemporaneous with the fact in issue and must not be made at such an interval as to allow of fabrication or to reduce them to the mere narrative of a past event i though this is subject to apparent exceptions in the case of continuing facts k 2 they must relate to and explain the act they accompany and not independent facts prior or subsequent where to i and 3 though admissible to explain they are not always taken as proof of the truth of the matters stated that is as hearsay m
PW 7 has stated in his evidence that the voice of PW 8 who was the Presiding Officer at kalaka polling station is recorded in the tape that the tape contains also he conversation of the alternate Presiding Officer Roop Chand RW 1 and that the voice of the Constable Mohinder Singh RW 3 who was on duty at the polling station and had made a complaint to him is also recorded in the tape
It is true that he has admitted in his cross examination that he cannot identify the voice with any of the persons mentioned by him
The transcript of the tape PW 71 after it had been recorded in a larger tape with the help of a re sophisticated instrument in this Court was prepared by this Court and some portions thereof has been admitted by RW 22 to be in his voice and he has recognised in the larger tape the voice of even PW 7 in some portions of the conversation which admittedly took place between him and PW 7 in the office of RW 10 at about 730 pm On 1951982
It is seen from the transcript that some one had answered the question about what his name and number were and that one Mohinder Singh had answered saying that his name and number were Mohinder Singh and 498 which tally with those of RW 3
In the answer to question as to how many persons came inside the polling station Mohinder Singh had stated that four persons case inside and 20 or 30 persons were remaining outside and there were also 5 or 6 vehicles
In answer to the question whether he had seen arms or ammunitions in the hands of those persons who stood outside and of those four persons who entered the polling station Mohinder Singh had stated that perhaps Colonel Sahib referring to the respondent was armed with a gun while some persons were armed with swords and some 2 or 3 persons were armed with lathis
It is further seen that in answer to the question as to what he was and what was his name one Roop Chand informed the question that he was Roop Chand and a Stenographer in the Project Office of the Agricultural Department in Haryana
These particulars tally with those 478 of RW 1
It is seen from the tape that PW 17 had also answered certain questions saying inter alia that he was Amar Singh polling agent of the Congress I candidate and that there were 5 or o vehicles with a number of persons in them
It is also seen from the tape that during the course of conversation between the respondent and PW 7 at the office of PW 10 the fact that PW 7 had gone to Kalaka polling station immediately after the respondent and others left the place and that he got the statements tape recorded there was mentioned by PW 7 to the respondent
In these circumstances great reliance has to be placed on the tape exhibit
PW 71 and is contents not only for corroborating the evidence of PWs 7 and 8 to the extent they go but also as res gestae evidence of the first part of the incident
The learned trial Judge was not justified in rejecting the tape record exhibit
PW 71 and the transcript ExP 1
It must be remembered that the respondent who had openly disowned any art of the tape as containing his voice and had on the other hand gone to the extent of saying in the trial Court that it rather contained the voice of Rao Birendra Singh has admitted in this Court portions of that tape as being in his voice and that he has stated that he cannot identify any voice other than those of himself and PW 7
Coming now to exhibit P 2 PW 7 has stated in that report that around 1030 am when he was proceeding by his car between Manodola and Zainabad villages he received a message on the 4 police wireless that in Rewari Constituency the Congress J candidate had complained that about 50 to 60 Congress I workers had attacked his workers in Kalaka village
He immediately directed the Station House Officer of Sadar Rewari to rush to the village
At 1135 am he received a message on the police wire less that villagers had refused to vote in Kalaka alleging that Congress J workers had polled some bogus votes in Kalaka polling station
Therefore he proceeded to Kalaka polling station and interrogated the Presiding Officer and the polling officers of the polling station and recorded the conversation in his tape recorder
When he was told that Congress J workers came into the polling station and snatched ballot papers from the polling staff and polled them in favour of the respondent he advised the polling officer to accept tendered votes from the electors if they came to the polling station for voting and he thereafter went to Burthal Jat
This report submitted by PW 7 some time after the results of the poll were announced corroborates the evidence of PW 7 about what he did at the polling h station soon after he went there on receipt of a wireless message about the polling of bogus votes in favour of the respondent
479 With respect to the office which he holds the respondent as a party and his own witness is wholly unreliable
In his written statement he had vaguely alleged that the men of Rao birendra Singh captured the booth at Kalaka aud the supporters and voters of the respondent were badly out manoeuvred and that the said fact could be gathered from the fact that whereas Sumitra Devi had obtained 484 votes he had obtained only 53 votes in that polling station
The only suggestion made to PWs 12 and 17 who have denied it is that Ajit Singh visited the Kalaka polling station
No suggestion was made to any of the witnesses examined on the side of the appellants in the cross examination that Ajit Singh came armed with some armed companions and beat RW 5 and Tula Ram and dragged them out and that they forcibly polled bogus votes
Such a case was projected by the respondent only after the respondent started to let in oral evidence on his side after the appellants had closed their evidence
In these circumstances when questioned as to why he had not made any complaint naming Ajit Singh specifically for the incident at Kalaka RW 22 has stated in his evidence that it is not because such an incident never happened but because the picture was not clear at that time
It is impossible to accept this explanation of RW 22 for the polling took place on 1951982 and the respondent filed his written statement in the election petition long thereafter on 1491982
If as the respondent would have it Tula Ram and RW 5 came to his residence at Rewari in the morning of 1951982 and informed him about the incident at the Kalaka polling station and there after he went there and complained to PW 8 about it he should have come to know about the details of the incident before he filed his written statement long thereafter on 191982
If by 1491982 the picture of what happened at the Kalaka polling station 1951982 was not clear it is not known how it would have become clear only after appellants had closed their evidence and just before the respondent began to let in oral evidence on his side
Therefore the explanation of RW22 that he had not named Ajit Singh specifically in relation to the incident at the Kalaka polling station not because it never happened in the manner stated by his witnesses but because the picture was not clear at that time cannot be accepted at all
RW 22 had stoutly denied in the trial Court that the tape record exhibit PW 71 contained his voice but added that it is rather the voice of Rao Birendra Singh
But after the tape was recorded with the aid of a more sophisticated instrument by playing it in this Court in the presence of the respondent in the 480 office and also in the open Court RW 22 has admitted some portions of his conversation with RW 7 in the office of PW 10 at about 7 or 730 am On 1951982
In the cross examination made in this Court after RW 22 had heard the re recorded larger tape being played in the Court RW 22 has stated that he could not recognise the voice of any person in the tape other than those of himself and PW 7
If the tape used by PW 7 for recording the conversation could not be followed and understood clearly when it was played in the trial court with the very same instrument by which it was recorded what RW 22 could have said was that he cannot say whether it contains his voice but he could not have gone to the extent of saying that it does not contain his voice but it rather contains the voice of Rao Birendra Singh
This also shows that the evidence of RW 22 is not reliable
In his cross examination in this Court RW 22 has stated that he was the Speaker of the Haryana Legislative Assembly until the new Legislative Assembly met after the elections in May 1982 and could therefore have summoned any officer to his office and he did not go to the police station on 1951982 and he is quite positive about it
But in the later portion of his evidence in this Court he has stated that not only his admission of the transcript of the tape exhibit P l to the effect that he went to the police station but also his written statement that he did not go to the police station on 1951982 are both correct and that he would emphasize that he did not go to the police station at all on that day
He has also stated that although the voice in the tape says that he went to the police station and that voice appears to be his own voice he did not go to the police station because he was the Speaker of the Haryana Legislative Assembly on that day and could have summoned any police officer to his office
However it is his own evidence that he did go to the office of PW 10 to meet PW 7 at about 7 or 730 pm On 1951982
This also shows that the evidence of RW 22 is not reliable
RW 22 has admitted the voice in the tape that when PW 7 asked him about when he received the message about the incident at the Kalaka polling station he answered by saying that it was about 1130 am and that it is correctly recorded in the tape
It is seen from the transcript that the respondent had stated in that conversation that he thereafter went to the Kalaka polling station and questioned his men as to whether they were not ashamed that two or three chaps  belonging to the same village had been beaten
However he would say in his evidence that he 481 went to Kalaka only once on 1951982 and that it was about 9 or 930 am
There is abundant unimpeachable evidence on the side of the appellants to show that the respondent armed with a rifle visited Kalaka polling station accompanied by some armed persons at about 1130 am or 12 noon and indulged in the polling of bogus votes
PW 7 had stated in the course of his tape recorded conversation with the respondent in the office of PW 10 at about 7 or 730 pm on 1951982 that he visited Kalaka polling station soon after the respondent had left that place
RW 22 has admitted in his cross examination in this Court that the statement of PW 7 that he was there at about 12 noon or 1205 pm refers to Kalaka polling station and that PW 7 told him that the Presiding Officer told him a different story about the incident which took place in that polling station
It is therefore clear that the respondent has attempted to make a futile effort to show that he visited the Kalaka polling station with RW 5 and others only at about 9 or 930 am
On 1951982 and not at the time of the first part of the incident alleged by the appellants
The written statement is silent on the question whether the respondent visited Kalaka polling station on 1951982 except a mere denial
The respondent unsuccessfully attempted to file an additional or amended written statement to the effect inter alia that he had decided not to move out of his house and had not gone out of his house on 1951982
This portion of the additional or amended written statement which had not been received by the Court was put to him in cross examination by Mr Sibbal
RW 22 has stated that there appears to be a typing error in that statement that he did not move out of his house on that day and that what he meant to say was that as a consequence of the assurance of his supporters that he was going to succeed he acceded to their wish and had decided not to move out of his house on that day
He would say that he did not read that amended written statement and had no sufficient time to read it properly but that he did not give specific instructions to his counsel on that matter and was told by his supporters not to move out of his house on 1951982 and that the fact that he went to Kalaka village on 1951982 is not mentioned in that amended written statement though inspite of deciding not to move out of his house on that day he did go to Kalaka village on that day
This also shows that the evidence of RW 22 is not reliable
In the election petition it is alleged in relation to the incident at the Burthal Jat polling station that Anil Kumar and Satbir Singh are the relatives of the respondent
There is no 482 denial much less any spefic denial of this allegation in the written statement of the respondent though it is a material fact which ought to have been denied specifically if it was not admitted
Therefore under 08 r 5 of the Code of Civil Procedure which applies to proceedings in election petitions it must be deemed to have been admitted by the respondent
Order 8 rule 5 reads Every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission
But during the trial RW 22 had repeatedly denied that Anil Kumar and Satbir Singh were in any way related to him though in a portion of his evidence he would say that satbir Singh is the adopted son of Jagmal Singh father of his wife who was divorced in 1962 and that he does not known if Anil Kumar is the brother of his brother in law Surinder Kumar and he could not deny or admit that he is the brother of his brother in law Surinder Kumar as Surinder Kumar has 6 or 7 brothers
He has stated that he does not know whether Anil Kumar and Satbir Singh are the two persons who were arrested in Burthal Jat village on 1951982 for offences under section 107 and 151 of the Code of Criminal Procedure and that he had not exhibited grave concern about Anil Kumar and Satbir Singh in the course of his conversation with PW 7 in the office of PW 10 at 7 or 730 pm
On 1951982 or told PW 7 that they were his relatives
But in his cross examination in this Court he has admitted that Anil Kumar and Satbir Singh had been arrested by the police at the instance of PW 7 at the burthal Jat polling station on 1951982 and that he had referred to them as his relations only because PW 7 had not taken any steps inspite of his repeated representation in regard to the arrest of those two persons
It is not possible to accept the evidence of RW 22 that because no steps were taken by PW 7 on his repeated requests for the release of Anil Kumar and Satbir Singh he told PW 7 that they were his close relatives for he had admitted in his evidence in this Court that he would have left no stone unturned if his partymen and workers were harassed even though they may not be his relatives
It appears from this portion of the evidence of RW 22 that it would have been unnecessary for him to claim Anil Kumar and 483 Satbir Singh to be his close relatives merely to prevent them from being harassed by the police after their arrest on A 1951982
He has stated in his evidence in this Court that because he was told by his workers that two of his relatives had been arrested and their identity was not clear to him when he had the Conversation with PW 7 in the office of PW 10 on 1951982
he referred to them in the course of his conversation as his relatives
He has also stated that it is only after PW 7 mentioned their names and identity that he new that they were Anil kumar and Satbir Singh and that they were not his relatives
In the subsequent portion of his evidence he has stated that he had never deposed in this Court that PW 7 mentioned the name of Anil Kumar to him
In an other portion of his evidence in cross examination in his Court he has admitted that the statement in that conversation that he told PW 7 that Anil Kumar and Satbir Singh were his relatives is correct
Thus it is seen that RW 22 has given varying versions on the question whether Anil Kumar and Satbir Singh were his relatives or not though he has admittedly informed PW 7 in the course of his conversation with him in the office of PW 10 on 1951982 that they were his close relatives
This also shows that the evidence of RW 22 is not reliable
The evidence of the private witnesses examined by the appellants to depose about the first part of the incident in the Kalaka polling station is fully corroborated by the evidence of the Presiding Officer PW8 and received ample corroboration from the evidence of PWs 7 and 10
Their evidence is corroborated by the reliable and contemporaneous documentary evidence by way of Exs
P 5 P 6 and the tape record exhibit PW71 which are unimpeachable and also by what has been stated by PW 7 in his report exhibit P 2 submitted by him to the Government some time after the results of the election held in May 1982 were announced
Therefore I reject the evidence of the respondent and the other witnesses who have deposed on his side in regard to this part of the incident in the Kalaka polling station and accept the evidence of PW 8 and the other witnesses who have deposed about the same on the side of the appellants election petitioners and hold that the appellants have proved satisfactorily and beyond reasonable doubt the first part of the incident in Kalaka polling station namely that the respondent went armed with a rifle with 25 or 30 companions and entered the polling station with 4 or 5 armed companions and threatened the Presiding Officer PW 8 and others including the polling agents who were present in the polling station with the use of force and got some ballot papers marked in favour of the respondent polled forcibly by his 484 companions in the ballot box and that they left the polling station on seeing the villagers of Kalaka and police personnel coming towards the Kalaka polling station
There is no doubt that there is some discrepancy in the evidence regarding the time of the incident
But it is not a material discrepancy
I shall now consider the evidence relating to the second part of the incident at the Kalaka polling station
Mr Sibbal did not press the case of the appellants regarding the second part of the incident at the Kalaka polling station in his principal argument but he pressed that portion of the appellants  case after Mr Rao contended in the course of his argument that what is alleged to have happened inside the polling station even if true will not constitute any corrupt practice but would amount only to an electoral offence
Regarding this part of the case there is the evidence of Tara Chand PW 12 Sheo Chand PW 13 Puran PW 14 Inder Singh PW 16 and Mangal Singh PW 18 on the side of the appellants
Gur Dial who has been referred to in the election petition in this connection was tendered as PW 15 for cross examination but he has not been cross examined by the learned counsel for the respondent
PW 12 who was one of the electors and the polling agent of Sumitra Bai in the election with which we are concerned at the Kalaka polling station has stated that when he was arranging the electors to stand in a queue for the purpose of voting the respondent came there with 60 or 70 persons at about 1030 am The respondent armed with a gun while some of his companions were armed with swords pistols and sticks
The respondent and his companions threatened PWs
141517 and others including Kesar Lal who had come to the polling station for the purpose of casting their votes and asked them to go away from there and they consequently ran away from the polling station
Amongst the respondent s companions who did so PW 12 knows only Desh Raj Krishan Lal and Ram Krishan RW 5 of Kalaka and Balbir Singh Raghubir Singh and Umrao Singh
PW 12 has not been seriously examined on this portion of his evidence
What has been elicited in his cross examination is that he was the polling agent of Congress I candidates even in the earlier elections and he had convassed for the Congress I candidate in the election with which we are concerned for 5 or 10 days and that he reported to the police after the completion of the poll but the police did not send for anybody on that complaint
PW 13 has stated that when he was standing in the queue awaiting his turn for casting his vote after reaching Kalaka 485 polling station at about 10 am the respondent came there at about 10 am alongwith 50 or 60 persons in two or three vehicles namely a truck and two motor cycles
The respondent was armed with a gun while his companions including Desh Raj Krishan Lal and Ram Krishan RW 5 were armed with swords rifles and lathis
Lambardar Ishwar PW 16 Puran PW 14 Ram Singh and others were standing in the queue at that time
The respondent threatened PW 13 and others saying that they cannot cast their votes and he asked them to go away under threat of being beaten and shot and out of fear PW 13 and others who were standing in the queue ran away
It has been elicited in his cross examination that he came back and cast his vote at 2 pm and that he cannot say whether the others who were in the queue and had run away had come again or not for casting their votes
PW 14 has stated that he had gone to the polling station at about 10 or 11 am for casting his vote and was standing in the queue alongwith others
The respondent came there armed with a gun accompanied by 50 or 60 persons including Desh Raj Krishan Lal Balbir Singh Ram Krishan RW 5 and a Sikharmed with a kirpan
The respondent s companions created a commotion and the respondent threatened PW 17 and others who were in the queue to run away on pain of being killed otherwise and out of fear all the persons who were in the queue ran away
In his cross examination he has stated that about 15 or 20 persons were standing in the queue when the respondent and his companions arrived at the polling station and that he cast his vote later at about 3 pm after calm prevailed all around
He has denied the suggestion that he had given false evidence being a Congress I worker
Ishwar Singh PW 16 the Lambardar of Kalaka village has stated that when he was standing in the queue along with 14 or 15 persons at about 10 or 1030 am awaiting his turn for casting his vote the respondent came there accompanied by 3 or 4 persons including Desh Raj and Krishan Lal RW 6 of his village and threatened to kill him and he was hit with the butt of a gun by one of the companions of the respondent and he ran away
He has also stated that PWs
131415 and 17 were also standing in the queue alongwith him and that after he informed the people of the village that the respondent had come and threatened him the people of the village collected and came towards the polling station whereupon respondent and his companions ran away leaving behind two motor cycles by which respondent s companions had come there
There is abundant evidence on the side of the appellants 486 referred to above to show that when PW 7 and other officials arrived after the incident in and at the Kalaka polling station they found two motor cycles abandoned at that place
PW 16 has denied the suggestion that he has deposed falsely being the supporter of the Congress I party
PW 18 has stated that when he was inside Kalaka polling station and his particulars were being checked before he could be allowed to vote the respondent came there and that 20 or 25 persons were standing in the queue ran away
He has admitted in his cross examination that he had canvassed for the Congress I party but has denied the suggestion that he has always been helping the Congress I candidates and has given false evidence on account of that reason
This is all the oral evidence on the side of the appellants regarding tho respondent threatening electors who were standing in the queue at the Kalaka polling station awaiting their turn for casting their votes in the morning on 1951982 and scaring them away under threat of violence against their person and thereby preventing them from exercising their electoral right
The evidence on the side of the respondent has been referred to above in the discussion relating to the first part of the incident at the Kalaka polling station and has been found to be not reliable
It has been found earlier that the evidence of RW 22 and his witnesses that RW 22 went to Kalaka polling station by a car with some of his men only at about 9 or 930 am
On 1951982 could not be accepted and that the respondent had received information at about 1030 am about some Congress J workers having been beaten by Congress I workers in Kalaka which message had been flashed by the police wireless and received by PW 7 and he went there only thereafter
There is unimpeachable evidence on the side of the appellants to show that when the respondent went inside Kalaka polling station he was in a rage
In these circumstances it is probable that while in such a mood after receipt of some report that his workers were beaten by Congress I workers he went there and asked his men whether they were not ashamed about 2 or 3 of their men of the same village having been beaten and that he thereafter indulged in the acts alleged in the election petition both outside and inside the polling station at Kalaka
PW 7 who reached Kalaka polling station soon thereafter received oral report about the detention of a motor cycle belonging to Congress J workers
In these circumstances 1 accept the evidence of PWs
12 13 16 and 18 referred to above and find that the respondent came to the 487 Kalaka polling station at about 1030 am on 1951982 armed with a rifle and accompanied by his companions some of whom were armed with deadly weapons and that he threatened the electors who were standing in the queue awaiting their turn for casting their votes on account of which they ran away and he had thus interfered with the exercise of the electoral right of those persons
There is some discrepancy in the evidence about the time of arrival of the respondent and his men
It is not a material discrepancy
About the incident at Burthal Jat polling station there is the evidence of PWs 7 9 and 10 who are official witnesses and of Mahabir Singh PW 26 Dharam Vir PW 27 Thavar Singh S PW 28 Amir Chand PW 29 Surjit Singh PW 30 Raghubir Singh PW 31 Shamsher Singh PW 32 Kishori Lal PW 33 Ram Narain PW 34 and Mam Chand PW 35 on the side of the appellants
There is evidence of Ravi Datt Sharma RW 11 Parbhati RW 12 Ami Lal RW 13 Sheo Chand RW 14 and the respondent RW 22 on the side of the respondent
PW 26 of Burthal Jat village was the polling agent of the respondent himself and he had filed the form exhibit P 16 dated 1851982 for the same
He has stated in his evidence that he had gone to the polling station at 7 am and had not seen any incident at that place
It is clear that PW 26 was not prepared to go the whole hog to support the case of the appellants as regards the incident at the Burthal Jat polling station but he has stated in his cross examination that when he went to the polling station he saw Anil Kumar and Satbir Singh were canvassing votes for their candidate and that he also saw a jeep with sticks
The learned trial Judge has stated in his judgment that though the evidence establishes that Anil Kumar and Satbir Singh were canvassing votes for their candidate lt is not known from the evidence as to who their candidate was
But lt is clear from the evidence referred to already showing the concern of the respondent for Anil Kumar and Satbir Singh who had been arrested by the police at the Burthal Jat polling station that the candidate for whom they were canvassing could not have been any other than the respondent
PW 26 has admitted in his cross examination that Satbir Singh was known to him previously and that he PW 26 was on duty inside the polling station
PW 27 of Burthal Jat village has stated in his evidence that he had gone to Burthal Jat polling station at 8 am for casting his vote in the election held in May 1982
The 488 respondent came there at about 8 am accompanied by 50 or 60 persons and told his polling agents Mahabir and Udhey Bhan that he was leaving some persons behind and he asked them to see that no one is permitted to vote for the Congress I candidate and that they should ensure to have maximum votes polled in his favour in that polling station
The respondent left behind 15 or 16 persons including Anil Kumar and Satbir Singh one of them a Sikh armed with a sword and the others with pistol and sticks and the other persons who came with the respondent went away with him
In his cross examination he has stated that the respondent came to Burthal Jat polling station in a car while his companions came by a motor cycle a jeep and a truck
No doubt he is unable to mention the numbers or colour of the vehicles or the colour of the turban of the respondent s Sikh companion and he has stated that he cannot identity Satbir Singh
He has denied the suggestion that he is a supporter of Rao Birendra Singh and his sister and that the respondent did not come to Burthal Jat polling station at all on that day
PW 28 who belongs to Burthal Jat village has stated in his evidence that after he went to the polling station the respondent came there accompanied 50 or 60 persons at about 8 am
The respondent was armed with a small gun while his companions were armed with rifles ballas and sticks
The respondent called his polling agents Mahabir and Udhey Bhan and told them that they should not permit even a single vote to be cast in favour of the Congress I candidate and he was leaving behind Anil Kumar and Satbir Singh alongwith 15 or 20 persons for their help
The other people left behind by the respondent were armed with lathis
He has admitted in his cross examination that he was the polling agent of Sumitra Devi but he has denied the suggestion that the respondent did not go to the polling station at all on that day and that he has given false evidence
PW 29 who belongs to Burthal Jat village has stated in his evidence that he went to the polling station at about 8 am for casting his vote in the election with which we are concerned
The respondent accompanied by 50 or 60 persons came there at about 8 am and sent for his polling agents Mahabir and Udhey Bhan and told them they should not permit anyone to vote in favour of the Congress I candidate
27 and 28 and many other persons were present when the respondent said so
The respondent told Mahabir and Udhey Bhan that he was leaving behind Anil Kumar and Satbir Singh for their help alongwith 15 or 20 persons who were found by PW 29 to be armed with sticks
PW 489 29 was not permitted to cast his vote earlier and he therefore came again and cast his vote at 3 pm
He has stated in his cross examination that he returned to his house after 8 am Out of fear and went back to the polling station at 3 pm for casting his vote and stayed there till the afternoon
He has denied the suggestion that the respondent did not visit Burthal Jat polling station on that day
PW 30 who belongs to Burthal Jat village has stated in his evidence that he started to go to the polling station at about 1030 am for casting his vote in the election with which we are concerned
When he emerged from his village to proceed to the polling station for casting his vote Anil Kumar and Satbir Singh met him and asked him as to whom he was going to cast his vote and they insisted that he should vote for the respondent
On his refusal to do so Anil Kumar and Satbir Singh threatened PW 30 when 2 or 3 persons armed with sticks were present with those two persons and he therefore returned to his house
He went to the polling station at about 330 pm for casting his vote and learnt that Anil Kumar and Satbir Singh had been arrested by the police
He has stated in his cross examination that he does not know to which place Anil Kumar and Satbir Singh belong and that when he came to the polling station later at about 3 pm he was told that those two persons were Anil Kumar and Satbir Singh
He has denied the suggestion that he had been a supporter of Rao Birendra Singh in all the elections and that he has given false evidence
PW 31 who belongs to Burthal Jat village has stated in his evidence that when he went to the polling station at 11 am for casting his vote in the election with which we are concerned he was accosted by Anil Kumar and Satbir Singh who were present there alongwith 20 or 30 persons armed with sticks about 25 yards away from the boundary of the polling station and they asked him as to the person for whom he was going to cast his vote and they insisted that he should vote for the respondent and threatened him when he replied that he would vote for the candidate of his own choice
In view of the threat he went back to the village and came later for casting his vote a about 3
pm and learnt that Anil Kumar and Satbir Singh had been taken into custody by the police
He has admitted in his cross examination that he did not complain to anybody about the threat but he has denied the suggestion that he has given false evidence
PW 32 is the Sarpanch of Burhtal Jat village
He was admittedly the polling agent of Sumitra Devi
He has stated in 490 his evidence that he went to Burthal Jat polling station for the second time at 230 pm
When he approached the main gate of the polling station he met Anil Kumar and Satbir Singh and they asked him to support the respondent and when he told them that it was open to him to vote for the candidate of his own choice there was an altercation and they started beating him and he was rescued by PWs 33 35 and others of his village
Meanwhile an Assistant Sub Inspector of police came there by jeep and they hurled abuses at him even in the presence of the Assistant Sub Inspector of police and thereupon that police officer arrested Anil Kumar and Satbir Singh
He saw a jeep containing sticks parked there and the people who were in the jeep ran away when the police arrived
He brought these facts to the notice of PWs 7 and 10 when they came there and they took the jeep and the sticks into their custody
Anil Kumar was sitting on the motor cycle while Satbir Singh was standing on the road side when they confronted him as stated above and their motor cycle was taken into custody by the police
In his cross examination lt has been elicited that he did not report in writing to PWs 7 and 10 or get himself medically examined or file any complaint in any Court against Anil Kumar and Satbir Singh
He has denied the suggestion that he had strained relations with Satbir Singh because of his election to a cooperative society and that he has given false evidence because he was the polling agent of Sumitra Devi
PW 33 who is the chowkidar of Burthal Jat village has stated in his evidence that when he went to the polling station at about 230 or 3 pm during the last election to the Haryana Legislative Assembly he saw Anil Kumar and Satbir Singh abusing and beating PW 32
PW 33 and Lambardar Mam Chand PW 35 and another Lambardar Ram Singh and others of Burthal Jat village separated PW 32 from Anil Kumar and Satbir Singh
Meanwhile an Assistant Sub Inspector of police came there and about 10 or 15 other persons who were with Anil Kumar and Satbir Singh ran away on seeing the police after leaving behind a jeep and a motorcycle which were taken into custody by the police
PW 32 informed PWs 7 and 10 about what happened when they came there some time later
In his cross examination he has denied that PW 32 was not present at all at the Burthal Jat polling station but was in his village at the time of the poll
He has denied that he was appointed as Chowkidar by PW 32 and has stated that he is Chowkidar of the village since 1982 and that PW 32 became Sarpanch of Burthal Jat village only recently
He has denied the suggestion that no incident at all took place in the village and that he had given false evidence under the influence of PW 32
491 PW34 the Lambardar of Kakoria village situate close to Burthal Jat village has stated in his evidence that he went to Burthal Jat polling station at about 230 or 3 pm for casting his vote in the last election to The Haryana Legislative Assembly and saw Anil Kumar and  Satbir Singh slapping and fisting PW 32
He and PW 35 and others intervened and separated them
Some time thereafter a Sub Inspector of police came and saw Anil Kumar and Satbir Singh exchanging abuses with PW 32 and he arrested those two persons
PWs 7 and 10 who came there later talked with Anil Kumar and Satbir Singh
The police took a motor cycle and a jeep which was with Anil Kumar and Satbir Singh into their custody
In his cross examination he has stated that he had not meet Anil Kumar and Satbir Singh previously and that he does not know the numbers of the jeep and the motor cycle
He has denied the suggestion that he had supported Rao Birendra Singh in the election to Parliament in 1980 and did not go to Burthal Jat village at all during the election in question and has deposed falsely under the influence of the appellants
PW 35 son of Umrao Singh and Lambardar of Burthal Jat village was the polling agent of the Bhartiya Janata Party candidate in the last election of the Haryana Legislative Assembly
He has stated that after he reached Burthal Jat polling station at 7 am the respondent came there at about 8 am accompanied by 50 or 60 persons and called his polling agents and told them that they should see to it that the Congress I candidate does not get votes and he added that he was leaving Anil Kumar and Satbir Singh and 15 other persons for their help
At about 230 pm PW 35 saw Anil Kumar and Satbir Singh beating PW 32 of his village and thereupon he and PWs
33 and 34 separated them
Meanwhile an Assistant sub Inspector of police took Anil Kumar and Satbir Singh into custody and 10 or 15 persons who were left behind by the respondent fled on seeing the police leaving behind a motorcycle and a jeep containing sticks and other weapons
7 and 10 came there some time later and the motor cycle and the jeep were taken into custody by the police
In his cross examination he has denied that Ex
P 9 to which reference would be made a little later contains his signature and he has stated that there are two other persons of his name and one of them is the son of Umrao Singh
He has further stated in his cross examination that the respondent told Anil Kumar and Satbir Singh that they should see to it that no other candidate except himself gets votes in that polling station
He has denied that he had made a false statement before PWs 7 and 10 and that he has given false evidence being a member of the opposite faction
492 The Deputy Commissioner and District Election Officer PW7 has stated in his evidence that on the day of poll he proceeded from Kalaka polling station to Burhtal Jat polling station pursuant to the receipt of a complaint that a CongressJ worker was attacked by the villagers of Burthal Jat
The polling officer of Burthal Jat polling station told him when he visited that place that nothing had happened inside the polling station but some of the officers in the polling station told him that there was some incidents outside the polling station though they were not sure about the identity of the persons responsible for the same
Some villages told PW 7 that Congress J workers had come in a jeep and tried to create trouble and that one of them ran away while the police had detained two of those persons
PW 7 interrogated those two persons and they then told him that they had nothing to do with the jeep whose number he has recorded in the tape exhibit
PW 71
PW 7 found some sticks in the jeep and he asked the police to take the jeep and the sticks into their custody
Anil Kumar and Satbir Singh who had been attacked by the villagers were found detained by the police
The Sarpanch of Burthal Jat village PW 32 made a complaint to him outside the Burthal Jat polling station
PW 7 recorded the conversation which he had with the Presiding Officer at the Burthal Jat polling station but some portion thereof was erased by his own voice by inadvertence
The respondent met PW 7 at about 7 pm in the office of PW 10 and informed PW 7 about some incidents which had taken place during the day and complained to him about them
The conversation which he had with the respondent at that time was recorded simultaneously in the tape exhibit PW 71 and he later reported to the Secretary to the Government about the complaint which the respondent made to him against the Superintendent of Police
His stenographer prepared the transcript Ex
P 1 in his office most of it under his supervision and he was temporarily absent to attend to some other work and he compared it with the original tape and found it to be correct
The tape tape recorder and transcript remained with him throughout and were not deposited by him in the record room and there was no possibility of tampering
He had not created evidence in the form of the tape at the instance of Rao Birendra Singh to harm the respondent
P 2 is the copy of the report which he submitted about the incidents which took place on 1951982 as had come to his notice
In his report Ex
P 2 sent to the Secretary to the Government PW 7 has stated inter alia that when he went to Burthal Jat polling station from Kalaka polling station he was told that a few workers of the Congress J candidate had been detained by the villagers and he had conversation with the Presiding Officer and 493 the villagers and found a jeep with about 15 or 20 lathis in it and directed the police to take the jeep with the lathis as also the two workers of the Congress J candidate who were standing near the jeep into custody
The Returning Officer and Sub Divisional Officer Rewari PW 10 who went to Burthal Jat polling station along with PW 7 has stated in his evidence that he saw Anil Kumar and Satbir Singh surrounded by the people of that village and a jeep containing some sticks parked there and that Anil Kumar and Satbir Singh and the jeep were taken into custody by the police under the orders of PW 7
He has further stated that Ex
P 9 was handed over to him by one Mam Chand of Burthal Jat village on that day
As stated earlier PW 35 who is Mam Chand son of Umrao Singh of Burthal Jat village has disowned exhibit
In his cross examination PW 10 has denied that he had discriminated between the candidates while disposing of the complaints about Kalaka and Burthal Jat polling stations
exhibit
P 9 addressed by Mam Chand to PW 10 is to the effect that the respondent pointed out his gun at the Presiding Officer and other persons in Burthal Jat polling station after he came there at about 130 pm along with 65 or 70 persons and he ordered for the ballot papers being marked with the symbol of scales and put into ballot boxes and to finish off anybody who interferes and that the whole village was terrorised and they were thereby prevented from exercising their electoral right
There is no specific reference in this report to Anil Kumar and Satbir Singh or to their arrest by the police at the instance of PW 7
exhibit
P 9 which was found in the file summoned from the office of the Sub Divisional Officer Rewari had been marked only through PW 10 and has been disowned by PW 35 who is no doubt Mam Chand son of Umrao Singh
For want of proof exhibit
P 9 could not be taken into consideration but the learned Trial Judge has relied very heavily upon that document for disbelieving the appellants  case regarding the incident at Burthal Jat polling station
He was not justified in doing so
The Assistant Sub Inspector of police PW 9 who had been posted at Sadar Rewari police station has stated in his evidence that at the instance of Assistant Sub Inspector Jagan Nath who returned to the police station at 330 pm on 1951982 he recorded a Daily Diary Report of which exhibit
P 8 is a copy and that Ex
P 8 is a correct copy of the original report
It is mentioned in exhibit
P 8 that Anil Kumar and Satbir Singh of Kutubpur and Dulana respectively were abusing and beating Sarpanch Shamsher Singh PW 32 whereupon an Assistant Sub Inspector of police 494 along with other intervened and separated them that Anil Kumar and Satbir Singh were creating a situation of breach of peace ant were therefore taken into police custody and that the jeep bearing registration number DED 3203 was also taken into police custody
PW 9 has not been cross examined regarding exhibit
exhibit
P 28 is a copy of the judgment in the case registered in the concerned FIR No104 of 1982 dated 1951982 under sections 107 and 151 of Code of Criminal Procedure against Anil Kumar and Satbir Singh
It is seen from that judgment that the Magistrate after considering the circumstances of the case and hearing Anil Kumar and Satbir Singh had come to the conclusion that the fight took place between those two accused and the Sarpanch Shamsher Singh in connection with polling of votes and that the incident pursuant to which the fight took place was over and the accused persons belonged to different villages and there is no likelihood of breach of the peace and therefore there is no necessity to take any further action against them and he accordingly discharged them
P 27 is a certified copy of the calender dated 1951982 relation to that criminal case registered by the police
P 27 and P 28 were tendered by the learned counsel who appeared for the respondent in the trial court
That calender contains allegations to the effect that the Assistant Sub Inspector of police with the help of Kalyan Singh separated PW 32 from Anil Kumar and Satbir Singh and stopped the fighting that the complaint of PW 32 was that when he was going to cast his vote two persons riding on a motor cycle came there and asked him to vote in favour of the respondent that when he told them that he would cast his vote for the candidate of his own choice they assaulted him with danda and gave him slaps and that during the investigation the Assistant Sub Inspector of police found that those two persons were present there for procuring votes for the respondent
It was not disputed by Mr Rao in this Court that though the complaint on the basis of which FIR No 104 of 1982 had been registered may not be admissible in evidence in the absence of any foundation for letting in secondary evidence FIR No 104 of 1982 registered by PW 9 would be admissible in evidence
It shows that on the complaint to the effect that Anil Kumar and Satbir Singh were abusing and beating PW 32 and they were separated from PW 32 by and Assistant Sub Inspector of police and others a case under sections 107 and 151 of the Code of Criminal Procedure was registered against them and a jeep bearing number DED 3203 was also taken into custody by the police on 1951982 and it is admissible in evidence
The FIR corroborates the evidence of PW 32 and of some of the other witnesses referred to above who have deposed about this incident
495 On the other hand RW 11 a lecturer in a Higher Secondary School at Rewari who was a polling office at Burthal Jat polling station during the election with which we are concerned has stated in his evidence that no untoward incident of any type took place and that the respondent did not visit that polling station on that day
In view of the documentary evidence and the other oral evidence referred to above which show that on incident did take place outside Burthal Jat polling station and that a jeep containing some lathis as also Anil Kumar and  Satbir Singh were taken into custody and those two persons were prosecuted in a case registered against them under section 107 and 151 of the Code of Criminal Procedure it is not possible to accept the evidence of RW 11 that no incident took place and that the respondent did not go to Burthal Jat polling station at all on 1951982
It must also be noted that KW 11 has admitted in his cross examination that he could not have known that happened outside the polling station because he was inside
RW 12 who cast his vote in Burthal Jat polling station at 8 am claims to have remained at the polling station till about 130 or 2 pm and he has stated that neither the respondent nor anyone on his behalf came to the polling station and there was no quarrel inside or near the polling station so long as he remained there
But in his examination in chief itself he has admitted that PW 32 was standing about 80 kadams away from the polling station with some people and he heard some altercation between them and that while the altercation was going on some police personnel arrived at the spot and removed two persons who were not known to him
He has further stated in his cross examination that there was a jeep a some distance away from where the Sarpanch PW 32 and the other persons had altercation
He has no doubt denied the suggestion that 10 or 15 other persons were with those two unknown persons and they were armed with sticks that the respondent came there and left those 15 or 20 persons along with those two unknown persons and that those two unknown persons threatened many people as a result of which they could not cast their votes
RW 13 who went to Burthal Jat polling station at about 1045 am for casting his vote and cast his vote at that time claims to have stayed there along with some villagers until about 4 pm
Though he has stated in a portion of his examination in chief that no incident took place with in or outside the polling station 80 long as he remained where he had admitted in his examination in chief itself that he saw PW 32 having a dispute with two unknown persons about 120 kadams away as also a jeep parked 80 kadams away from the polling station and that he heard people saying that the Superintend of Police removed these two 496 unknown persons
No doubt he has denied that Anil Kumar and Satbir Singh were threatening the electors in the village and that he has given false evidence on account of pressure from the respondent
RW 14 who cast his vote at Burthal Jat polling station at 730 am claims to have thereafter set under a tree by the road side about half a furlong away from the polling station
He has stated that he did not see the respondent passing by that road in the direction of Burthal Jat village
His evidence is not helpful to either of the parties as he has merely stated that he had not seen the respondent passing by that road in the direction of Burthal Jat village
It is not possible that he would have closely looked into each and every vehicle which passed by that road to notice the respondent who appears to have been moving on that day by his car
RW 22 has stated that he did not go to Burthal Jat village or send anyone of his workers to that village on 1951982 but he remained in his house throughout after he returned from kalaka on that day
It is not possible to accept his evidence that he had not sent any of his workers to Burthal Jat village on the date of poll as it is unlikely that the candidate contesting in the election would not have sent any of his workers to that polling station
It is seen from the aforesaid tape recorded conversation between PW 7 and RW 22 in the office of PW 10 at about 7 or 730 pm
On 1951982 that the respondent expressed his anxiety to get his relatives Anil Kumar and Satbir Singh who had been arrested on that day by the police released and that his evidence that Anil Kumar and Satbir Singh were not his relatives at all is totally unreliable for reasons mentioned above in the discussion of the evidence relating to the incident at Kalaka polling station
The evidence of RW 22 as a whole is unreliable for the reasons already mentioned above
Mr Sibbal did not reply upon any portion of the tape relating to the conversation in Burthal Jat polling station but he has relied for the purpose of the appellants  case in relation to Burthal Jat polling station upon that portion of the tape which relates to the conversation between PW 7 and KW 22 in the office of PW 10 at about 7 or 730 pm
On 1951982
The fact that a portion of the tape recorded conversation in Burthal Jat polling station got erased by PW7 s own voice due to inadvertence is no reason for rejecting the remaining portion of the tape
It was demonstrated in this Court that the tape recorded has only one knob for operating the recorder for three purposes namely recording playing and rewinding
If by mistake the knob is pushed for rewinding and thereafter for recording at a particular point it is probable that what had been 497 recorded earlier gets erased by the time the mistake in operating A the knob is noticed
Therefore there is no reason to reject the evidence of PW7 that a portion of the tape recorded conversation in Burthal Jat polling station got erased by his own voice due to inadvertence
The oral and documentary evidence regarding the incident at Burthal Jat polling station let in by the appellants receives corroboration to a certain extent from the evidence of some of the respondent s own witnesses
As stated earlier RW 12 has admitted that PW 32 who was standing about 80 kadams away from the polling station was having an altercation with some people and that even when the altercation was going on some police personnel arrived there and they took into custody two persons and there was also a jeep at some distance away from the place where PW 32 and others were having an altercation
Even RW 13 has stated that PW 32 was having a dispute with two unknown persons about 120 kadams away from the polling station and soon thereafter he heard people saying that the Superintendent of Police took away those two unknown persons
The names of Anil Kumar and Satbir Singh had been specifically and clearly mentioned in the election petition in regard to the incident at the Burthal Jat polling station and they have been alleged to be the relatives of the respondent
The respondent has not specifically denied the said allegation in his written statement but during the trial he attempted to make it appear that they were not related to him
However it has been found above that they are related to him
Still the respondent who had shown his serious concern to get them released from police custody on 1951982 has not called those two persons as his witnesses to rebut the case of the appellants
Therefore as observed in Chenna Reddy vs BC Rao supra in these circumstances an adverse inference has to be drawn against the respondent who has not called those two persons as his witnesses though their evidence should be available to him in support of his contention regarding the incident at Burthal Jat polling station
Therefore I accept the oral and documentary evidence let in by the appellants as referred to above as being reliable and reject the evidence of the respondent and his witnesses in regard to the incident at Burthal Jat polling station and find that at the instance of the respondent his relatives Anil Kumar and Satbir Singh who were left behind by him along with 15 or 20 persons with a jeep containing sticks interfered with the exercise of the electoral right of PW 32 and others as alleged in the election petition as a result of which they had to go away from the queue in which 498 they were standing awaiting their turn for casting their votes though they had subsequently come to the polling station and cast their votes
Now I shall consider the respondent s contention raised in the written statement that the allegation that the respondent and some of his armed companions entered the polling station and brandished their guns at the Presiding Officer and ordered the other polling staff and polling agents of various candidates to stand still does not constitute any corrupt practice and that the allegation that the polling agents Amar Singh and Suraj Bhan were threatened and turned out of the polling station does not constitute corrupt practice as they are not alleged to be electors of Kalaka village
Mr Rao submitted that these acts even if proved would amount to only electoral offences under section 136 b f and g read with section 8 and would not constitute corrupt practice under section 1232 read with section 79d of the Act
In support of his contention Mr Rao invited this Court s attention to the decision in Nagendra Mahto vs The State supra where it has been held as stated earlier that the L criminal revision petitioner before the High Court who had insisted upon going into the room where the ballot papers were kept though the Presiding Officer had warned him to go out of the room and also attempted to put some ballot papers into the box of one Nitai Singh Sardar was rightly convicted under section 131 1 b and section 136 L f of the Act
On the other hand Mr Sibbal submitted that casting bogus votes forcibly would amount to corn pt practice as it would indirectly interfere with the electoral right of the voters whose ballot papers have been so polled whether they had intended to come to the polling station and exercise their right to vote or had intended otherwise
In this connection he invited this Court s attention the decision in Ram Dial vs Sant Lal and Others supra where as extracted above this Court has held that while the law in England laid emphasis on the usual aspect of the exercise of undue influence under the Indian law what is material was not the actual effect produced but the doing of such acts as were calculated to interfere with the free exercise of any electoral right
According to section 79d of the Act electoral right  means the right of a person to stand or not to stand as or to withdraw or not to withdraw from being a candidate or to vote or refrain from voting at an election
Section 123 2 of the Act lays down that undue influence that is to say any direct or indirect interference or attempt to interfere on the part of the candidate or 499 his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right   shall be deemed to be corrupt practice for the purpose of the Act
What constitute electoral offences are detailed in sections 125 to 136 which fall under Chapter III of the Act
S125 relates to promoting enmity between classes in connection with election
S126 relates to prohibition of public meetings on the day preceding the election day and on the election day
S127 relates to disturbances at election meetings
S127A relates to restrictions on the printing of pamphlets posters etc
S128 relates to maintenance of secrecy of voting
S129 relates to prohibition of Officers etc at elections acting for candidates or to influence voting
S130 relates to prohibition of conversing in or near polling stations
S131 provides for penalty for disorderly conduct in or near polling stations
S132 provides for penalty for misconduct at the polling station
S133 provides for penalty for illegal hiring or procuring of conveyances at elections
S134 relates to breaches of official duty in connection with elections
S134A prohibits Government servants from acting as election agent polling agent or counting agent
S135 relates to removal of ballot papers from polling station
S135 relates to other offence and penalties therefore namely fraudulent defacement or fraudulent destruction of any nomination paper fraudulent defacement destruction or removal of any list notice or other document affixed by or under the authority of the returning officer fraudulent defacements fraudulent destruction of any ballot paper or the official mark of any ballot paper or any declaration of identity or official envelope used in connection with voting by postal ballot supply of any ballot paper to any person or being in possession of any ballot paper without due authority fraudulently putting into any ballot box anything other than the ballot paper which the person putting the same is authorised to put in destroying opening or otherwise interfering with any ballot paper and fradulently or without due authority attempting to do any of the foregoing acts or wilfully aiding and abetting the doing of any such acts
It would appear that forcible marking of ballot papers removed from polling officers in the polling station marking the same in favour of any candidate and putting the them in the ballot box is not one of the offences mentioned in them
Therefore as rightly submitted by Mr Sibbal it cannot be contended that in this country forcible polling of bogus votes as mentioned above is neither a corrupt practice nor an electoral offence
I agree with Mr 500 Sibbal and hold that forcible polling of bogus votes in the circumstances and manner found in this case would constitute indirect interference with the electoral right of the concerned electors whether they be persons who had decided to cast their votes in that election or those who had decided not to do so
It is significant in this connection to note that after having been informed about the forcible polling of bogus votes by the respondent s men at the Kalaka polling station PW 7 had instructed the polling staff to issue tendered ballot papers to any elector whose ballot paper had already been forcibly polled who might come for the purpose of exercising his right
I have referred to and discussed the evidence somewhat in detail in view of the fact that I have disagreed not only with the learned Trial Judge but also with respect with my learned brother Fazal Ali J with whom my learned brother Mukharji J has agree
The respondent in this case had managed to keep away from the Court material evidence by way of the original report of the Presiding Officer a copy of which is contained in exhibit
P 6 by filing CMP31 E of 1983 in the trial Court
He had cited the Observer RW 20 as his witness to depose about his case regarding the allegations made by the appellants in paras 9 to 12 of the election petition regarding the corrupt practices
But he did not examine RW 20 for that purpose and had called him only for the purpose of production of some record without any oath being administered to him though in his tape recorded conversation with PW 7 in the office of PW 10 on 1951982 referred to above he had admittedly asked PW 7 to get ever thing noted by PW 20 who was present there at that time
He had thus denied to the appellants the opportunity to cross examine RW 20
The respondent had come forward with a new case of alleged booth capturing and forcible polling of bogus votes by Ajit Singh in the Kalaka polling station after the appellants had completed the examination of their witnesses to whom no such suggestion was made in the cross examination
He had repeatedly denied in his evidence that Anil Kumar and Satbir Singh who had been arrested by the police at the Burthal Jat polling station on 1951982 were his relatives though in his tape recorded conversation referred to above he had informed PW 7 that they were his close relatives and he had shown his anxiety to get them released from police custody forthwith
He had neither cited them nor called them as his witnesses though they would have been material witnesses in regard to the incident at the Burthal Jat polling station
The respondent s evidence as RW 22 has been found to be wholly unreliable for reasons already mentioned
In 501 these circumstances what my learned brother Fazal Ali J has mentioned in the first para of his judgment barring the first sentence in that para would apply to the respondent alone
An election petition seeking a declaration that the election of the returned candidate is void under section 100 1b on account of corrupt practice as per section 1322 of the Act as in the present case is a civil proceeding though the standard or degree of proof required is as in a criminal case
In any case two views are not possible in the present case where the appellants have proved beyond all reasonable doubt that the respondent has committed the corrupt practices alleged in at the Kalaka and Burthal Jat polling stations
No lenient view can be taken in this case merely because the election petition is directed against the returned candidate for only in the case of a returned candidate Parliament has provided in the interest of purity in elections for serious consequences of not only 1 declaring the election void under section 100 1 b but also 2 disqualification under section 8A of the Act by the President for a period not exceeding six years when a finding of corrupt practice is recorded against a returned candidate
For all the reasons mentioned above I hold that the appellants have succeeded in proving the two instances of corrupt practice pressed in this Court and are entitled to succeed in this appeal
The appeal is accordingly allowed with costs of Rs 5000 payable by the respondent returned candidate
SABYASACHI MUKHARJI J Having had the advantage of reading the judgment of my learned brother Fazal AliJ I agree with the reasoning and the conclusions arrived at by my learned brother
I would however like to express my views on following four points involved in the appeal firstly this being appeal under section 116A of the Representation of the People Act 1951 which is in the nature of first appeal to this Court how should the appraisement of evidence by the trial Court be reviewed by this Court in this appeal secondly subject to what safeguards the tape recorded evidence should be accepted thirdly this being election petition involving corrupt practice the nature of evidence required to proved by a contesting party in order to succeed and fourthly whether bogus votes or booth capturing itself is a corrupt practice because it deprives other genuine voters in general of the right to vote or the right to abstain from voting
In this case evidence of tape recording made by the Deputy Commissioner Shri Bhaskaran was produced before the High Court
In this tape recorded evidence the Deputy Commissioner has 502 recorded the incidents on the date of polling at several booths but reliance was placed only on the evidence relating to two booths namely Kalaka and Burthal Jat
For the reasons recorded in his judgment the learned trial judge has not accepted the tape recorded evidence
The tape record purports to record statements made by some persons including polling agent polling officer Col
Ram Singh and Deputy commissioner him elf
About the acceptance and reliability of evidence on tape recording one should proceed very cautiously
In this connection on the analogy of mutilated document if the tape recording is not coherent or distinct or clear this should not be relied upon
See in this connection the observations in American Jurisprudence Vol
30 page 939
In the case of R vs Maqsud Ali 1965 2 All ER page 464 in respect of criminal trial the question was considered by the Court of Appeal in England
A tape recording it was held was admissible in evidence provided the accuracy of the recording car be proved and the voices recorded can be properly identified and that the evidence is relevant and otherwise admissible
The Court however observed that such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case
There cannot however be any question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged
It was further observed that provided the jury was guided by what they hear themselves from the tape recording and on that they base their ultimate decision there is no objection to a copy of the transcript of a tape recording properly proved being put before them
lt is not necessary to set out the particular facts of that case
It may be noted however that Marshall J had observed at pages 469 70 of the report as follows It is next said that the recording was a bad one overlaid in places by street and other noises
This obviously was so and as a result much of the conversation was inaudible or undecipherable
In so far as that was so much of the conversation was never transcribed but there still remained much that was transcribed and the learned judge after full argument ruled that what was deciphered should be left for the jury to assess
We think that he was right
Lastly it was said that the difficulties of language were such as to make any transcription unreliable and misleading
This argument the learned judge treated 503 with great care and circumspection
Th recorded conversation was in Punjabi dialect confined to a particular area of Pakistan
He was told that there were many such dialects in which similar words differed in or had more than one meaning that the meaning of sentences often depended on the order of the words that pronouns were matters of inference and R not represented by actual words
Often only parts of sentences were decipherable owing to the other extraneous noises
He decided before admitting the evidence to have a trial within a trial in which translators were called by both aids which I think I am right in saying lasted 2 12 days
All matters were canvassed tn very great detail
He discovered that there were certain passages common to translations and in the end he decided that it was a question which should be left to the jury but he did not think this evidence was so unsatisfactory that I should withdraw it from the jury
 It has to be borne in mind that in England and in America the mechanism of tape recording is well advanced
In this country it is not so as yet
Furthermore the infirmities some of which have been noted by Marshall J of tape recording are more evident in the instant case before us
In R vs Robson
1972 2 All ER page 699 the accused was charged inter alia with corruption
The prosecution ought to put in evidence certain tape recordings
The defence contended that these were not admissible because i lt had not been shown that these were the originals or in the absence of the originals true copies of them and 11 they were misleading and should not be relied on because in many places these were unintelligible and of poor quality and their potential prejudicial effect would therefore outweigh the evidentiary value claimed for these
It was held by the Court as follows The recordings were admissible for the following reasons 1 the Court was required to do no more than satisfy itself that a prima facie case of originality had been made out by evidence which defined and described the provenance and history of the recordings up to the moment of production in Court and had not been 504 disturbed on cross examination in the circumstances that requirement had been fulfilled see p 701 f and p 702 a post
ii the Court was satisfied on the balance of probabilities that the recordings were original and authentic and their quality was adequate to enable the Jury to form a fair assessment of the conversations recorded in them and should not be excluded on that account see p 703 f and 8 post
 In the instant case the tape recordings as we have heard were misleading and could not be relied on because in most places they were unintelligible and of poor quality and of no use therefore their potential prejudicial effect outweighs the evidentiary value of these recordings
This Court had also considered this question in Shri NSri Rama Reddy Etc vs Shri VV Giri
1971 1 SCR page 399
There in case of an election trial it was held by this Court that the previous statement made by a person and recorded on tape could be used not only to corroborate the evidence given by the witness in Court but also to contradict his evidence given before the court as well as to test the veracity of the witness ant also to impeach his impartiality
Apart from being used for corroboration the evidence was admissible in respect of the other three matters under sections 146 1 153 Exception 2 and section 155 3 of the Evidence Act
This Court observed after referring to some cases that two propositions are clear that 1 tape recorded conversation is admissible in evidence 2 if it contains the previous statement mate by a witness it may be used to contradict his evidence given before the Court
But the Court cautioned itself at page 411 that though tape recording may be admissible what weight it has to be put to such evidence depended upon the facts and circumstances and other relevant factors
In the case of RM Malkani vs State of Maharashtra 1973 2 SCR page 417
This Court observed that tape recorded conversation was admissible provided firstly that the conversation was relevant to the matters in issue secondly there was identification of the voice and thirdly the accuracy to tape recorded conversation has to be proved by eliminating the possibility of erasing the tape
505 In the facts of the present case however the dangers noted A by this Court were present
So therefore though in an appropriate case it may be possible to rely upon tape recorded conversation in the facts of this case and for the infirmities in the tape recorded evidence as pointed out before this cannot be relied in the instant case
On the aspect of the nature of evidence the question here is not who is a saint or who is a sinner
It has to be borne in mind that this is a quasi criminal proceeding
It has been so held in numerous decisions
Quasi means asif  similar to 
The question of nature of evidence was rather exhaustively examined by a decision of this Court in M Chenna Reddy vs V Ramachandra Rao and Anr 1972 ELR Vol
40 page 390
mere after discussing the evidence GK Mitter J speaking for this Court reiterated the nature of evidence at pages 414 415 thus This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it
In this connection the inherent difference between the trial of an election petition and a criminal trial may also be noted
At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side namely his insanity or his acting in self defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged
m e trial of an election petition on the charge of commission of corrupt practice is somewhat different
More often than not proof of such corrupt practices depends on the oral testimony of witnesses The candidate charged with such corrupt practice invariably leads evidence to prove his denial it becomes the duty of the Court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal a reasonable person can form the opinion that on the evidence the charge is satisfactorily established
We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit 506 were being investigated into
The petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian evidence Act
Inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version
In the case of Ram Sharan Yadav vs Thakur Muneshwar Nath Singh and Others 1984 SCC page 649 this Court observed that the charge of a corrupt practice is in the nature of a criminal charge which if proved entails a very heavy penalty in the form of disqualification
Therefore a very cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidate
It is for the party who sets up the plea of undue influence  to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case
However while insisting on standard of strict proof the Court should not extend or stretch this doctrine to such an extreme extent as to make it well nigh impossible to prove an allegation of corrupt practice
See also in this connection the observations in the case of Sardar Harcharan Singh vs Sardar Sajjan Singh  Ors
Civil Appeal No 3419 NCE of 1981 Judgment delivered on 29th November 1984
Judged by the aforesaid standard for the infirmities mentioned in the judgment of my learned brother it cannot be said that the appellants have proved their case to the extent required to succeed
While in a first appeal the entire evidence can be reviewed by the appellate Court and this being the first appeal under Section 116A of the Representation of the People Act one must however always bear in mind that where the question is whether the oral testimony should be believed or not the views of the trial judge should not be lightly brushed aside where the trial judge has to advantage of judging the manner and demeanour of the witness which advantage the appellate Court does not enjoy This is a limitation on all appellate Courts whether be it the first appeal or second appeal
In believing the oral testimony of a witness the view of the judge who hag the advantage of watching the demeanour and the conduct of the witness cannot be lost sight 507 of
See the observations of this Court in Moti Lal vs Chandra Pratap Tiwari  Ora
AIR 1975 SC page 1178 see also the observations of this Court in Raghuvir Singh vs Raghubir Singh Kushwaha
AIR 1970 SC page 442
In view of the nature of the evidence on record we find no reason to disagree with the appraisement of the evidence by the learned trial judge
Last point indicated above is interesting as was sought to be raised by Mr Sibbal because preventing a person from casting his vote or causing a bogus vote purpoting to be a vote of some one other than the genuine voter would be a serious interference with the electoral process as grave as preventing a person from voting
Right to abstain from voting is recognised in our system of election
But in view of the evidence in this case the point need not be pursued further
For the reasons mentioned before I agree that the appeal be dismissed
ORDER In accordance with the decision of the majority the appeal is dismissed without any order as to costs


Summary:
In the general election to the State Assembly held in 1982 the appellants and the respondents were the candidates
The respondent was declared elected to the Assembly
In their election petition the appellants alleged that the respondent was guilty of corrupt practice and booth capturing in that he went to two polling booths along with 50 to 60 persons armed with guns sticks and swords threatened and pressurized the voters and as a result of the serious threats held out by the respondent and his men the voters ran away without exercising their franchise that the respondent and his companions entered the polling booths and terrorized the Polling Officer and polling agents assaulted the polling agents at gun point snatched away the ballot papers and marking them in the respondent s favour cast the votes in the ballot boxes and thumb marked the counter foil of ballot papers
They sought a declaration that the respondents election was void under section 100 of the Representation of the People Act 1951
A large number of witnesses were examined by both sides
The Deputy Commissioner who was the Returning Officer of the constituency recorded on a tape recorder the statements of same persons including the polling agents the Polling Officer and the respondent and of himself
The High Court held that the evidence of the witnesses and the petitioners on these points was not corroborated no effort was made by the petitioners to connect the respondent with the ownership of vehicles purported to have been used by him that the witnesses were drawing more upon their imagination to make out stories about the detention of the persons and forcible polling at that polling station by the respondent and that the 400 petitioners failed to prove the charge beyond reasonable doubt
A The court also held that the role assigned to the respondent by the petitioners has not been proved
Dismissing the appeal  HELD Per Fazal Ali J Sabyasachi Mukharji J concurring and Varadarajan J dissenting The appellants have failed to prove their case that the respondent was guilty of indulging in corrupt practices
446 F Clear and specific allegations with facts and figures regarding the corrupt practices indulged in by the respondent have not been alleged in the first part of the election petition
The petitioners should have given definitive and specific allegations regarding the nature of fraud or the corrupt practices committed by the respondent as briefly as possible in the main part of the petition
407 E F The appellants have not established that the respondent was present at the time of the incidents at the two booths
Once this is not proved the appellants have failed
It is settled law that corrupt practices must be committed by the candidate or his polling agent or by others with the implicit or explicit consent of the candidate or his polling agent
Where the supporters of the candidate indulged in corrupt practices on their own without the authority from the candidate the election cannot be voided and this factor is conspicuously absent in this case
It is also settled law that the charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities
As the charge of corrupt practice is in the nature of a criminal charge it is for the party who sets up the plea of undue influence to prove it to the hilt and the manner of proof should be the same as in a criminal case
445 F H As regards the evidence recorded on a tape Recorder or other mechanical process the preponderance of authorities is in favour of the admissibility of the statements subject to certain safeguards viz 1 the voice of the speaker must be identified by the maker of the record or by others who recognise his voice
Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker
414 E 2 The voice of the speaker should be audible and not distorted by other sounds or disturbances
414 E 401 3 The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence414 F 4 Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out 414 G 5 The statement must be relevant according to the rules of evidence and 414 H 6 The recorded cassette must be carefully sealed and kept in safe custody
415 A R vs Maqsud Ali and B vs Robson  referred to
In the instant case the voices recorded at a number of places are not very clear and there is noise while the statements were being recorded by the Deputy Commissioner
A good part of the statement recorded on the cassette has been denied not only by the respondent but also the respondent s witnesses
No other witness has come forward to depose identification of the voice of the respondent or of witnesses
444 E There are erasures here and there in the tape and besides the voices recorded being not very clear lt is hazardous to base a decision on such evidence
The Deputy Commissioner recorded the statements in violation of the instructions or the Government and erred in not placing the recorded cassette in proper custody
He kept it with himself without authority and therefore the possibility of tampering with the statements cannot be ruled out
The transcript was prepared in his office by his stenographer and when the transcript was being prepared the Deputy Commissioner himself was absent from his office
The possibility of its being tampered with by his stenographer or somebody else cannot be ruled out
Respondents witnesses have denied the identity of their voices
The recording was done in a haphazard and unsystematic manner
A conspectus of the evidence of the witnesses shows that the evidence adduced by the respondent in the court is much superior in quality than that adduced by the appellants
The High Court was right in holding that the petitioners had failed to prove the allegations of corrupt practice or booth capturing beyond reasonable doubt
441 E 442 H 443 E Sabyasachi MukharjiJ concurring While accepting the tape recorded statements the court should proceed cautiously
The 402 evidence should be examined on the analogy of mutilated documents
If the tape recording is not coherent or distinct or clear it should not be relied upon
502 BD E R V Maqsud Ali and R vs Robson  referred to
In the instant case the tape recording was misleading and could not be relied on because in most places it was unintelligible and of poor quality
Therefore its potential prejudicial effect outweighs the evidentiary value of the recording
504 C Shri N Sri Rama Reddy etc
vs Shri VV Giri 19711 SCR 399 and RM Malkani vs State of Maharashtra  MChenna Reddy vs V Ramachandra Rao  Anr
1972 ELR Vol 40 390 Ram Sharan Yadav vs Thakur Muneshwar Nath Singh  Ors
  CANo 341981 decided on 291184 referred to
It is settled law that the charge of corrupt practice is in the nature of a criminal charge which if proved entails a heavy penalty in the form of disqualification and that a more cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidate
In the instant case it cannot be said that the appellants had proved their case to the extent required to succeed
506 D Where the question is whether the oral testimony should be believed or not the views of the trial judge should not be lightly brushed aside because the trial judge has the advantage of judging the manner and demeanour of the witness which advantage the Appellate Court does not enjoy
In view of the nature of the evidence on record there is no reason to disagree with the appraisal of the evidence by the trial judge
506 G Moti Lal vs Chandra Pratap Tiwari  Ors
AIR 1975 SC 1178 and Raghuvir Singh vs Raghuvir Singh Kushwaha AIR 1970 SC 442 referred to
Varadarajan J dissenting  It is clear from decided cases that tape recorded evidence is admissible provided the originality and the authenticity of the tape are free from doubt
In the instant case there is no valid reason to doubt them
It is not reasonable to reject the tape merely because some portions thereof 403 could not be made out on account of noise and interference not only outside but also inside the Polling Station
On the contrary under the circumstances of this case great relevance has to be placed on the tape and its contents not only for corroborating the evidence of the District Commissioner and the Presiding Officer to the extent they go but also as resgestae evidence of the first part of the incident
The Trial Judge was not justified in rejecting the tape record and transcription
The appellants have proved satisfactorily and beyond reasonable doubt the first part of the incident in one of the Polling Stations that the respondent went armed with a rifle with 25 or 30 companions and entered the Polling Station with 4 or 5 armed companions and threatened the Presiding Officer and others who were present there with the use of force and got some ballot papers marked in favour of the respondent polled forcibly by his companions in the ballot box and that they left the Polling Station on seeing the villagers and the police coming towards the Polling Station
The discrepancy in evidence regarding the time of the incident is not material
478 A C 483 E 484 A Secondly the Deputy Commissioner recorded the conversation which he had with the presiding Officer but some portion thereof was erased by his own voice by inadvertence
After recording his stenographer prepared the transcript in his office most of it under his supervision and though he was temporarily absent to attend to some other work he compared it with the original tape and found it to be correct
The tape the tape recorder and the transcript remained with him throughout and were not deposited by him in the record room and there was not possibility of tampering
496 F 497 A The respondent had managed to keep away from the court material evidence by way of the original report of the Presiding Officer
He had cited a person as his witness to depose about his case but did not examine him for that purpose and had called him only for the purpose of production of some record without any oath being administered to him
He had denied to the appellants the opportunity to cross examine that witness
The respondent had come forward with a new case of alleged booth capturing and forcible polling of bogus votes after the appellants had completed the examination of their witnesses to whom not such suggestion was made in the cross examination
From the evidence on record two views are not possible
The appellants have proved beyond reasonable doubt that the respondent had committed the corrupt practices alleged against him
No lenient view can be taken in this case merely because the election petition is directed against the returned candidate
499 G 500 B 404