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PETITIONER: RAM SINGH & ORS.

       Vs.

RESPONDENT: COL. RAM SLNGH

DATE OF JUDGMENT07/08/1985

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1986 AIR    3            1985 SCR  Supl. (2) 399  1985 SCC  Supl.  611     1985 SCALE  (2)1142

ACT:      Representation of the People Act 1951: Corrupt Practice how should be Proved.      Evidence Act - Tape recorded statements - When could be used as  evidence -  Safeguards to  be taken  in using  tape recorded evidence.

HEADNOTE:      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

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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 evidence.[414 F]      (4) Every possibility of tampering with or erasure of a part of  the tape recorded statement must be ruled out; [414 G]      (5) The  statement 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. v. Maqsud Ali [1975] 2 All E.R. 464 and B. v. Robson [1972] 2 All E.R. 699, 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

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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 Mukharji,J.  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 B,D-E]      R. V. Maqsud Ali [1975] 2 All E.R. 464 and R. v. Robson [1972] 2 All E.R. 699, 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. v. Shri V.V. Giri [1971]1 S.C.R. 399 and R.M. Malkani v. State of Maharashtra [1973] 2 S.C.R. 417  M.Chenna Reddy  v. V.  Ramachandra  Rao  &  Anr. [1972] E.L.R.  Vol. 40,  390; Ram  Sharan  Yadav  v.  Thakur Muneshwar Nath  Singh &  Ors. [1984]  4 S.C.C.  649; C.A.No. 3419/81 decided on 29.11.84, referred to.      It is  settled law  that the charge of corrupt practice is in  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  v. Chandra  Pratap Tiwari  & Ors. A.I.R. 1975 S.C. 1178  and Raghuvir  Singh v.  Raghuvir  Singh  Kushwaha A.I.R. 1970 S.C. 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

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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

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 6623 of 1983.      From the  Judgment and  Order  dated  3.6.1983  of  the Punjab & Haryana High Court in E.P. 13/82.      Kapil Sibal,  Gopi Chand,  K.C. Sharma, R. Karanjawala, Mrs. M.  Karanjawala, Miss  Neethu &  Mrs. Madhu Tewatia for the Appellants.      K.G.    Bhagat,     Additional    Solicitor    General, R.Venkataramani, Ranbir  Singh Yadav,  P.S. Pradhan, Chandra Shekhar Panda and A. Mariaroutham for the Respondent.

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    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

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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  19,1982   to  the  Haryana  Vidhan  Sabha  from  Rewari constituency No.86.  In view  of the  concession made by the counsel for  the parties,  we are  concerned in  this appeal only with  two polling booths, viz., Kalaka and Burthal Jat. It appears  that there  were as  many as five candidates and Col. Ram  Singh  [respondent]  seems  to  have  been  pitted against the aforesaid candidates.      The bedrock  of the  allegations made by the appellants against the  respondent was that he has been painted to be a most undependable and unreliable person from the moral point of view  as having changed sides with one party or the 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

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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 10.30 a.m. with 50-60 persons  and was  himself armed  with a  gun while his companions had  guns, sticks  and swords.  By sheer  show of force, the  voters were  threatened  and  pressurised  as  a result of  which they  ran  away  without  exercising  their votes. In other words, the allegation is that as a result of the serious  threat held  out by  the respondent, the voters were deprived of their valuable right of fraenchise.      (2) The  respondent alongwith  his companions enter the booth and terrorised the polling officer as also the polling agents (Basti  Ram & Ishwar) of the Congress I candidate who were assaulted  by The  respondent by  the but  end  of  the barrel of his gun.      (3) The  respondent and  others at  gun point  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

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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  P.W.  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 v. Sant Lal Ors.,  [1959] 2  supp. S.C.R.  748, the  Court  observed thus:           "What is material under the Indian law, is not the           actual effect produced, but the doing of such acts           as are  calculated  to  interfere  with  the  free           exercise of  any electoral right. Decisions of the           English Courts,  based on the words of the English           Statute, which  are not  strictly in  pari materia           with the  words of  the  Indian  statute,  cannot,           therefore, be used as precedents in this country."      In Samant  N. Balakrishna,  etc. v.  George Fernandez & Ors. etc..,  [1969] 3  S.C.R. 603, this Court while dwelling on the  principles to  be followed in election cases pithily point out thus: 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  v. Ch.  Jaswant Singh Chouhan & Ors. [1975] 4  S.C.C. 769,  this Court  laid down  the  following principles:           "Before considering  as to  whether the charges of           corrupt practice were established, it is important

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         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 v. Prakash Chand & Ors. [1976] 3 S.C.R. 335, Shinghal,J. made the following observations:           "Another argument  of  Mr.  Bindra  was  that  the           corrupt practice  in question should not have been           found to 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 v. Mohd. Osman Shaheed &  Ors.[1980] 3 S.C.C. 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  v. Thakur  Muneshwar Nath Singh & Ora. [1984]  4 S.C.C.  649, to which two of us were parties, this Court observed thus:           "The sum  and substance of these decisions is that           a charge  of corrupt  practice has to be proved by           convincing   evidence    and   not    merely    by           preponderance of E probabilities. As the charge of           a corrupt  practice is in the nature of a criminal           charge, it  is for  the party who sets up the plea           of ’  undue influence’  to prove  it to  the  hilt           beyond reasonable  doubt and  the manner  of proof           should be the same as for an offence in a criminal           case. This is more so because once it is proved to           the satisfaction  of a  court that a candidate has           been guilty of ’undue influence’ then he is likely           to be  disqualified for  a period  of six years or           such other period as the authority concerned under           Section 8-A of the Act may think fit.           By and  large,  the  Court  in  such  cases  while

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         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 Ex.P- 1 (the  tape-recorded statements  of RWs 1 to 3) as also the statements recorded  in the same tape-recorder by PW 7 which included the  statement of the respondent, in order to allay all doubts  and satisfy  ourselves regarding the genuineness of the statements made in the tape-recorder we have examined the respondent  as a court witness in this Court and allowed him to  be cross-examined  by both sides. We would deal with the nature  and the  relevancy of  the statements  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  v.   State   of Maharashtra  [1967]  3  S.C.R.  720,  this  Court,  speaking through Bachawat, J. Observed thus:           "If a  statement ’is  relevant, an  accurate  tape           record of  the  statement  is  also  relevant  and           admissible. The time and place and accuracy of the           recording 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. v.  V.V.Giri [1971] 1 S.C.R. 399, the following observations were made:           "Having due  regard to  the decisions  referred to           above, it is clear that a previous statement, made

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         by a  person and recorded on tape, can be used not           only to  corroborate the  evidence  given  by  the           witness  in  Court  but  also  to  contradict  the           evidence given  before the  Court, as  well as  to           test the  veracity of  the  witness  and  also  to           impeach his impartiality.      In R.M. Malkani v. State of Maharashtra [1973] 2 S.C.R. 417, this Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape-recorded statement admissible otherwise not; and observed thus:           "Tape recorded conversation is admissible provided           first 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  v. Brijmohan Ramdass Mehra &  Ors., [19751  Supp. S.C.R.  281, Beg,J. (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

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         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. v. Maqsud Ali, [1965] All. E.R. 464., Marshall, J., observed thus:- C           "We can  see no  difference in principle between a           tape recording and a photograph. In saying this we           must not  be taken  as saying that such recordings           are admissible  whatever the circumstances, but it           does appear to this court wrong to deny to the law           of  evidence   advantages  to  be  gained  by  new           techniques and  new devices, provided the accuracy           of the  recording can  be proved  and  the  voices           recorded properly  identified; provided  also that           the evidence is relevant and otherwise admissible,           we  are   satisfied  that   a  tape  recording  is           admissible  in   evidence.  Such  evidence  should           always be  regarded with some caution and assessed           in the  light of  all the  circumstances  of  each           case. There  can be no question of laying down any           exhaustive set of rules by which the admissibility           of such evidence should be judged.      We find  ourselves in  complete agreement with the view taken by  Marshall, J.,  who was one of the celebrate Judges of the  Court of  Criminal Appeal.  To the  same  effect  is another decision  of the same court in R. v. Robson [1972] 2 All E.R.  699, where  Shaw, J., delivering a judgment of the Central Criminal Court observed thus:           "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  (Vo1.29)  the  learned author on a conspectus of the authorities referred to in the footnote in  regard to  the admissibility  of tape  recorded statements at page 494 observes thus:           "The cases  are in  general agreement  as to  what           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

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         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. 417           ..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 17.4.82 the Governor of Haryana  called upon  the voters  to elect Members to the Vidhan Sabha. The last date for filing the nomination papers was 24.4.82,  the date  for scrutiny was 26.4.82 and 28.4.82 was the last date for withdrawal of candidature. The polling was held  on 19.5.82 and the counting of votes took place on 20.5.82. It  is the  last date  with  which  we  are  mainly concerned. To  begin with,  it appears  that 24  persons had filed their  nomination  papers  out  of  which  three  were rejected by  the Returning  Officer and  16 persons withdrew their candidature,  leaving five  persons in the field. Smt. Sumitra Devi was a nominee of the Congress (I) party and the respondent filed  his  nomination  papers  initially  as  an Independent candidate  but  later  on  joined  Congress  (J) party. The  respondent was first in the army but he resigned soon after  the Indo  Pakistan war in 1971 and started doing business as  a diesel  dealer in partnership with others. 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 R.W.1, the polling started at 7.30 a.m. and went off  peace   fully without  any untoward  incident till 10.30  a.m.   Near  About   this  time,   according  to  the allegations of the appellants, the respondent arrived with a posse of  60-70 persons,  including Des  Raj, Ram Kishan and

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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 19.5.82 itself. P.W. 7, Mr. N. Balabhaskar,  the   Deputy  Commissioner   of   Mohindergarh District, who  was  the  Returning  Officer  of  the  entire constituency also reached the spot and made enquiries in the matter. As  a result  of the trouble created at the instance of the respondent, the polling had to be postponed as it was disrupted for more than an hour.      These in  short, are  the allegations of the appellants against the  respondent in  respect of Kalaka polling booth. We shall  now refer‘to  the evidence led by both the parties on there  particular points  to show  how far the allegation have been  proved. To  begin with,  P.Ws. 7,  8,  12  to  18 deposed in  favour of   the  appellants in  respect of  this polling booth. In order to 419 rebut the  evidence led  on behalf  of the  appellants,  the respondent produced  Roop Chand (R.W.1), Deen Dayal (R.W.2), constable Mohinder  Singh (R.W.3),  Dhani Ram  (R.W.4),  Ram Kishan (R.W.5) and Suresh (R.W.6) besides respondent himself (R.W. 22).      Having gone  through the evidence led on behalf of both the appellants  and the  respondent, we  are clearly  of the opinion  that   despite  the  quantity  of  the  appellants’ witnesses, the quality of the respondent’s witnesses appears to be  much superior  to that  of the P.Ws. 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 R.W. 1 seems to find  intrinsic   support  from  the  star  witness  of  the appellants, viz., P.W. 7, the Deputy Commissioner. P.W. 7 is a high officer 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

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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 P.W.  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. P.W. 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  P.W. 7 himself in his statement where he stated Thus:-           "Some gaps  in Ex.  P. 1 have been left out, where           the voice was not clear and audible.           Many people  were standing  at the  polling  booth           whose voices have been recorded in the tape.           I cannot  now identify  the person  whose voices I           had  recorded   in  the   tape.  I   also   cannot

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         distinguish the  name of  person whose voice I had           recorded  after  hearing  the  tape      .....  My           Stenographer had 421           prepared the  transcript Ex.P1. 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  P.W. 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,  R.W.  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 P.W.  7. Similarly, R.W. 3 (constable) stated that P.W. 7 had  talked only  to the Presiding Officer and to no other member of  the polling  staff. No evidence has been produced by the appellants to rebut this part of the evidence of R.W. 3. R.W. 3 says in unconditional terms as follows:           "I did  not  make  any  such  statement  which  is           recorded in  the tape.  The voice  recorded in the           tape is not my voice.           The statement  of the witness which is transcribed           in Exhibit  P-l was also put to the witness. After           hearing the same, the witness stated:           I did  not make  any such  statement to the Deputy           Commissioner, nor he interrogated me.’      It Would  thus appear  that the  two witnesses  for the respondent,  who  were  government  servants  and  therefore official  witnesses,  clearly  and  categorically  d  denied having made  any such  statement   in The  cassette. P.W.. 7 HIMSELF has  very fairly  and frankly stated that he was not in a Position to identify the 422 voices either  of the respondent or of the witnesses for the respondent (R.Ws.  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 P.W. 7  himself. According  to the  consistent  evidence  of K.Ws. 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 P.W. 7

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where he states as follows:           "At about  10.30 a.m.,  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 10.30 a.m.  there could  be no question of the respondent or his people  to have visited Kalaka polling booth in order to create disturbance.  This, therefore, INTRINSICALLY supports the case  of the  respondent and  demolishes the case of the appellants about  the arrival  of Col..  Ram  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 P.W. 7 himself  deposed   that  he  did  not  receive  any  written complaint from  the polling officer or the Presiding Officer or from  any other  person at  the time  when he visited the Kalaka polling  booth. The appellants tried to bring on file certain complaints  made to  P.W. 7 by Suraj Bhan and others but as  the  original  complaint  had  not  been  filed  the complaint  produced  by  the  appellants  apart  from  being clearly inadmissible  cannot be  relied on  particularly  in face of the clear admission of the Deputy Commissioner (P.W. 7) that  he did  not receive  any written complaint from the officers concerned.      Another intrinsic  circumstance  which  demolishes  the case of the appellants about the presence of a mob headed by Satbir Singh  and  Anil  Kumar  (said  to  be  relatives  of respondent) is  that P.W.  10 (A.S.I.)  who was accompanying the D.C.  said that  he received the information that one of the candidates, viz., 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 D.C. actually received  was that  the disturbance  was created by one  Ajit   Singh  at  the  instance  of  the  Congress  (I) candidate. It  is, therefore,  impossible to accept the case of the  appellants that the respondent and his companions on the one  hand and  Ajit Singh with a posse of his own men on the other had reached the Kalaka polling booth at almost the same time.  Indeed, if  this had  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

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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 A.S.I. (P.W.10) also  says that 3-4 persons had made a complaint in writing to him but he had not seen those reports on the date when they  were made  to 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 (P.W. 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 Ex. P-5 and he stated  that he  had not  mentioned anything  in the said document about intimidation of the voters and other persons. He (P.W. 8) categorically states thus :-           I have  seen Ex.  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 R.W. 1, he says that after  the departure of Ajit Singh, Col. Ram Singh came to the  Kalaka polling  booth and he was alone at that time. The respondent  in the presence of R.W. 1 told the Presiding Officer that  he should  not be  partial to  any  party  and complained to him about the beating up of his polling agent. Hari Singh  (P.W. 8),  the  Presiding  Officer  assured  the respondent that  he would  not permit  anything  further  to happen. Thereafter, a number of people came there and stoned the polling  booth and  despite the  protests of the witness and the  Presiding Officer  they tried  to snatch the ballot box which  was, however, protected by the Presiding Officer. In the meantime, the police party arrived and the people who had gathered  there sped  away. Much was made by the counsel for the appellants regarding omission of the witness to 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 K.W.  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

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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.      R.W. 2,  Deen Dayal,  who was  a member  of the polling staff, fully  corroborates the  evidence of R.W. 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 D.C. Or the S.D.O. about his being beaten  up. As  already  mentioned,  the  witness  was merely a  teacher and  he appears  to have been satisfied by the assurance  given to  him by  the Presiding  Officer that necessary action  would be taken. He further states that the D.C. Only  talked to  the Presiding  Officer and  not to any other member  of the  polling staff.  This  shows  that  the evidence of this witness is true.      The next  witness on the point is RW 3 (Mohinder Singh) who was  a police  constable deputed to the spot to maintain law and  order. The  sequence of events that happened at the polling booth  and which have been deposed to by the witness may be summarised thus: 426      (1) while  the polling  was going  on, between 7.30 and 8.00 a.m.,  Ajit Singh arrived with his companions and tried to create all sorts of trouble.      (2) After  the departure  of Ajit Singh, Col. Ram Singh came alone  and was assured by the Presiding Officer that he would not R allow any further trouble to take place.      (3) After Col. Ram Singh had left the place a number of people from  the village  came and  wanted to poll forcibly, and 2-3  persons came out of the polling booth with a ballot box.      (4) He  (RW 3)  snatched the ballot box from the people and returned the same to Dhani Ram (RW 4).      The witness states that after some time the S.D.O. came there and  after having  a talk  with the Polling Officer he went away.  After about  half-an-hour or  45 minutes  of the departure of  the  S.D.O.,  the  D.C.  arrived  and  on  his intervention the  polling again started at about 12 mid-day. The  witness   vehemently  denied  that  his  statement  was recorded by  the D.C.  in a  tape-recorder and said that the voice recorded in the tape-recorder (which was played to him in court)  was not his. He even goes to the extent of saying that he  did not see any tape-recorder with the D.C. nor did he have any talk with him.      The following  important points  may be  noted from his testimony -

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    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  D.C. Moreover, evey the D.C. in his statement  has frankly  admitted that  he was  not in  a position to  identify the  voice of this witness or for that matter of others at the time of his deposition. Thus, in the eye of  law, there is no legal evidence at all to prove that the voice  Recorded in.  the tape-recorder  was the voice of this particular witness.      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 8.30 a.m. AJit Singh aimed with a revolver,  appeared on the scene and entered the booth. He heard hue and cry from inside the booth. He corroborates the evidence of  RW 5  about the  beating up of Tula Ram and Ram Kishan (RW 5). He goes on to state that after about half-an- hour of  the departure of Ajit Singh and his party, Col. Ram Singh came  and after  spend about  5-6 minutes  inside  the booth he  drove away.  The witness  further says  in  cross- examination  that  the  polling  did  not  start  after  the departure of  AJit Singh  in view of the commotion that took place there.  After the  departure of  Col.  Ram  Singh  the S.D.O. and the D.C. also came and ultimately the polling was continued. The  witness finally  says that he did not inform Col. Ram  Singh 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

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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  D.C.  when  other witnesses, including  the D.C., could not do so. That itself shows that he has leanings towards the appellants.      Another  important   aspect  which   emerges  from  the evidence of  PW 8 is that, according to him, the total votes polled in the Kalaka polling booth were 573, the break-up of which is as follows:-            between 7.30 to  8.45 a.m.         58            "      12 Noon-  2.00 p.m.        205            "     2.00 p.m.- 4.30 p.m.        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 8.45  to 10.30 a.m. 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  S.D.O.  and  Returning Officer tor  the Rewari  constituency. According  to him, he remained in  his office  upto 10.00  a.m. and  after that he started touring  the various  polling booths.  He goes on to say that  on 19.5.82  he reached Kalaka at about 11.00-11.30 a.m. on  receipt of  a complaint to the effect that Col. Ram Singh, alongwith his companions, had tried to intimidate the polling staff and the voters. When he arrived at the spot he found the  polling at  a standstill.  This actually supports the case of the respondent that the polling went on smoothly from 8.00 a.m. to 11.00 a.m. 429 and the  trouble must have been started either by Ajit Singh or by   his  men. The  poll could  not have restarted before 1.00 to  1.30 p.m. because, according to the evidence of the D.C., the  polling staff  had been  interrogated  and  their statements were tape-recorded which would have taken quite a lot of  time. This  fact intrinsically knocks the bottom out of the case made out by PW 8 regarding timing of the voting.      PW 14  (Puran) is  the next witness who does not appear to be  of any  importance because  it is only a case of oath against oath. Moreover, a perusal of his evidence shows that this witness  ran away  after Col.  Ram Singh  is alleged to have threatened  him. tie then returned and cast his vote at about 3.00  P.M. Not much turns upon to evidence. Rather his evidence shows  that he reached the spot nearabout 3.00 p.m. when peace  had been  restored and the polling had restarted smoothly.      More or  less, to the same effect is the evidence of PW 16 (Ishwar Singh) with the difference that this witness says that he  was assaulted  but then  except informing  the S.l. about the  injury he  took  no  further  steps.  If  he  was

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actually injured he would have made it a point to report the fact of  his assault  to the  D.C. Or  the S.D.O.  Or  other officers who  had assembled  after the  miscreants had  gone away. This  obviously he  did not  do. Lastly he admits that 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 D.C. and S.D.O. came he  made a  complaint to them in writing which was also signed by Suraj Bhan, Mangal Singh, Basti Ram and others. He Further says  that he had verbally complained to Deep Chand, the ASI  but he  took no action. He states that the D.C. had however made  an enquiry  from him but the D.C. does not say anything about  this witness  and being  a  most  interested witness it  is difficult for us to rely on this witness when the High  Court which  had the  opportunity of  watching the demeanour and  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  3/4           persons gave  him a  complaint at Kalaka about the           incident.  It   was  a   signed  complaint.   That           complaint is  not traceable.  It was  not found in           the complaint  file. Nor  was it  entered  in  the           complaint register.  That com  plaint could  throw           light on  the incident  if  at  all  lt  had  been           produced.  The   oral  evidence   has  failed   to           convincingly make  out this  allegation  that  the           voters were threatened at Kalaka.           From the  overall assessment  of the  petitioners’           evidence  and   the  detailed  discussion  in  the           previous  paragraphs   concerning   this   polling           station it  has left an impression in my mind that           the role  assigned to  the respondent has not been           proved beyond  reasonable doubt. Lot of suspicions           which are  indicated in  the  previous  paragraphs

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         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 6,7,10, 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 No.86 - 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  D.C. interrogated  those  two persons who  told him  that they  had no connection with the jeep. He  further admits that he did not interrogate them as to which 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 D.C.  also admits  that the Sarpanch to the village Burthal  had complaint  to him regarding this matter when he  reached Burthal  Booth. PW  7  then  says  that  at Burthal  he  recorded  the  conversation  of  the  Presiding Officer in detail  though he admits that some portion of the recorded conversation  was erased  inadvertently due  to his own voice being recorded there.      This is  all that  witness says  in respect  of Burthal

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booth. Accepting the entire testimonial as it is without any further comment,  it is  not proved or established as to who was the  person )  or persons  at whose instance the corrupt practice  was   committed.  There   WAS,  however,  a  clear admission by  the D.C.  that it  was the  respondent’s party which had  been  aggrieved.  It  is  rather  surprising  and intriguing that although the D.C. had gone to hold a regular 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,  S.D.O., PW l(). We have already  discussed a  major part  of his evidence while dealing with  the Kalaka  polling booth  and pointed out the serious infirmities  from which  his evidence  suffers. Same comments would  naturally apply  to his evidence relating to Burthal booth to show that his evidence is not creditworthy. However, we  shall briefly  summarise what he had said about Burthal booth.  In the  first place,  he states that when he

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reached Burthal,  alongwith D.C.,  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  D.C.,  taken  into custody by the police. Satbir and Anil Kumar were also taken into custody  under the orders of the D.C. In support of his evidence he relies on Ex.P-9, the complaint which was handed over to  him by  one Mam  Chand. The  manner  in  which  the complaint was  handed over  to PW 10 and as to the author of the complaint  are rather  dubicious particularly in view of the evidence  of Mam  Chand (PW  35). PW 35 was shown Ex.P-9 and after  seeing the  same he  stated that the same did not bear his  signatures. He  also deposed  that there  are  two other persons  by the name Mam Chand, e.g., there is one Mam Chand who  is the  son of  Kehar Singh  and the  name of the father of  the other  Mam Chand was not known to him. It is, therefore, manifest  from the  admission of  PW 35  that the complaint EX.P-9  was merely  handed over  to PW  10 by  Mam Chand but  neither the  contents were  proved nor  the maker thereof had  been  examined.  Therefore,  the  complaint  is clearly inadmissible,  as  the  persons  who  hands  over  a complaint cannot  be said  to be  the author of the same. We would, therefore,  have to  exclude Ex.P-9 from the array of the documentary  evidence. There  is nothing  further  which this witness 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 8.00 a.m. when near  about that time Col. Ram Singh accompanied by 50- 60 persons came there and summoned Mahabir and Udai Bhan who were his  election agents  and told them that he was leaving some persons  behind and that they should see to it that no- one should  be  permitted  to  vote  for  the  Congress  (I) candidate. The  witness further states that Satbir Singh was amongst the  15-20 persons left behind by Col. Ram Singh. In cross-examination he  admits that  he cannot identify Satbir Singh. It  is, therefore,  difficult 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 9.30  a.m. and  he had  come alone which fact has been supported by  an overwhelming  majority of witnesses for the respondent. Therefore,  we find  it difficult  to place  any reliance on  this witness  and his evidence 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

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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  7.30 a.m.  and returned to his house at about 8.30 a.m. He  then again  went to the polling booth at about 2.30 p.m. He  admits that  he was a polling agent of Smt. Sumitra Bai, the  Congress (I)  candidates, and states that while he was on  his way  to the booth in the afternoon he met Satbir Singh and Anil Kumar who asked him to support Col. Ram Singh and when  he told  them that  it was  one’s  own  choice  to support any  candidate an  altercation took place which was, however, stopped  with the  arrival of Mam Chand, Ram Singh, Kishori and  some other people. Thereafter, an ASI of police came there in a jeep who intervened in the matter and in his presence also  Satbir  Singh  started  uttering  abuses.  He further says  that he  found a  jeep parked there and people told him  that it  belonged to  Col. Ram  Singh, a statement which is clearly inadmissible. He finally says that when the D.C. and the 436 S.D.O. came there he informed them of the incident. In cross examination he  admits that  he made no report in writing to the police  that he  was beaten  up nor  did he  get himself medically examined.  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  2.30/3.00 p.m.  to cast his vote he found Satbir Singh and Anil Kumar having an altercation with Shamsher Singh,  PW 32.  He rescued  Shamsher Singh with the help of  some other per sons. The witness, being a chowkidar of the  village, should have immediately reported the matter to the  D.C. Or  the S.D.O. Or the ASI, all of whom had come to the spot but he did not do so and kept quiet which speaks volumes against the credibility of his evidence.      More or  less to  the same effect is the evidence of PW 34 (Ram  Narain) who is also a Lambardar of village Kakoria. He says  that on  the day  of the polling at about 2.30/3.00 p.m. he  had gone to the Village Burthal Jat where he saw an altercation going on between Satbir Singh. Anil Kumar on the one hand  and Shamsher  Singh on  the other. An ASI had also arrived there  followed by the D.C. and the S.D.O. He admits that he had never met Anil Kumar and Satbir Singh nor did he know them  before. Although  he was  an eye-witness  to  the incident of altercation yet he does not say that he had told anything to  the various  officers who  were present  at the spot.  His   evidence,  therefore,  does  not  inspire  much confidence.      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

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         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 7.30 a.m. to 4.30 p.m. Without any untoward  incident. He categorically states that he knew Col. Ram Singh and he (respondent) did not visit the polling booth on  the polling  day. He further goes on to state that at about  1.00 p.m., the D.C. and S.D.M. visited the polling booth.  On   their  enquiry,  the  witness  told  them  that everything was going on smoothly. He clearly denies that the D.C. had  recorded any conversation which he had with him in the 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 8.00 a.m. though he  had reached  the booth at 7.30 a.m. After casting his vote  he came  out and  stayed with his co-villagers and remained there will 1.30 or 2.00 p.m. He further states that during this  period Col.  Ram Singh or anybody on his behalf did not  come to  the booth  nor did  any quarrel or dispute take place inside or 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 B.D.O. and S.D.O. have come  there. Since  he did  not know  the D.C. was also there. He  stoutly denied the allegation that Col. Ram Singh had come  to the polling booth in the morning soon after the start of the polling and that he (respondent) had left 15-20 persons who  had to  be removed  by the  police. It  may  be noticed  at   this  stage  that  the  suggestion  in  cross- examination itself presupposes 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

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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,  T.C. Singla,  is more  or less a formal witness who produced  certain letters  (dated 25.4.82  and  30.4.82) written by Col. Ram Singh to the Chief Election Commissioner of India  containing certain  complaints made  by  Col.  Ram Singh about the irregularities in the election which are not relevant for our 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 D.C. (PW  7) was  not impartial  and was working against his interests. Perhaps  we may not go to the extent of-accepting the apprehensions  of the  respondent but  there is no doubt that the  conduct of  the D.C.,  as revealed  in this  case, leaves much  to be  desired. According to the evidence of RW 22, at  about 8.45  or 9.00  A.M. two  of his  persons  from Kalaka polling booth came to him in a dishevelled condition: there clothes were torn and they appeared to have been badly beaten up. They informed him (RW 22) that Ajit Singh S/o 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 9.15/9.30 a.m. 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 10.30  a.m. that his complaint had been  flashed to  the D.C. 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 D.C. at Burthal  where the  respondent does  not appear to figure or, at  any rate,  his statement was not recorded at Burthal

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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,  Ex. P-5  is the  diary of  the Presiding Officer  of the  Kalaka  booth.  We  have  already discussed the  effect of  this document and found that while in column  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. 20(e), relating to intimidation, etc., he  made no  mention of  any such incident and crossed the same,  meaning thereby that there was no intimidation of voters.  m   e  document,   Ex.  P-5,  is  therefore,  self- contradictory and  does  not  inspire  any  confidence.  The explanation given  by PW  8 in his evidence is that while he was filling  up column 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,  i.e.,  column  21(4)  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. 21(4). It seems to us that what had really  happened was  that the  plea of intimidation, as alleged by the appellants, is a cock and bull story and when the witness  was confronted  with a  contradictory situation and found  himself  in  a  tight  corner  he  invented  this ridiculous explanation  which has  to be  stated only  to be

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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. 21(4) subsequently as an afterthought. Thus, no reliance can be  placed on  a witness  like  PW  8  for  any  purpose whatsoever.      Ex.P-16 is  a certified copy of the FIR (No.103) lodged by the  Presiding Officer  implicating Col.  Ram  Singh  and making some allegations. This document also appears to us to be a spurious one as discussed by the High Court.      So far  as the  documents produced  on  behalf  of  the respondent are  concerned, they are R-1 to R-9 consisting of letters written  by Col.  Ram Singh  to 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  P.W. 1  and ending with R.W.22. In order to  understand the  admissibility, credibility and the truth of  the statements contained in the cassette, we might give a  brief summary  of the manifest defects and incurable infirmities from  which  the  statements  recorded  on  tape recorder suffer.  Our conclusion on this question is arrived at not only after going through the tape recorded statements but also hearing the cassette ourselves in this Court on big amplified speakers.  The defects/infirmities  may be pointed out thus: 1. The  voices recorded  at number  of places  are not  very clear ant  there is  tremendous noise  while the  statements were being recorded by the D.C. (P.W. 7) 2. A  good part  of the  statements recorded on the cassette has been denied not only by the respondent but also by R.Ws. 1 and  3. No other witness has come forward to depose to the identification of  the voice  of the  respondent or those of R.Ws. 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. 4. One  of the  important infirmities  from which  the  tape recorded statements  suffer 18 the question of custody. P.W. 7, 442 the D.C. has clearly admitted in his evidence that though he was supplied  a tape recorder or a dictaphone but he was not asked by  the Government  to record  the statements  on  the tape-recorder which  was really  meant for recording his own impressions and  not those  of the  witnesses. However, even though P.W. 7 violated the instructions of the Government he gravely erred in not placing the recorded cassette in proper custody, that  is to  say, in the official record room after duly sealing  the same,  and instead  keeping the  same with himself without any authority.      Thus,  the  possibility  of  tampering  with  the  tape recorded statements cannot be ruled out and this is almost a fatal defect  which renders  the  tape  recorded  statements wholly inadmissible. 5. P.W.  7 himself  admits that  the transcript  of the tape recorded statements  was prepared  in his  office under  his supervision by his stenographer. He further admits that when the transcript  was being prepared he was temporarily absent from his  office to  attend to  certain  other  works.  This

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appears to  us to be a very serious matter because he had no legal authority  to leave  the recorded  cassette  with  his stenographer, who  was transcribing  the same,  even  for  a single moment  as the possibility of its being tampered with by his  stenographer or  by anybody  else cannot  be  safely ruled out.  He further admits that even a copy of the trans- cript was not deposited in the official record room. 6. One  important aspect as part of the manifest defects may now be  mentioned. R.Ws. 1 and 3 have denied the identity of their voice in the cassette and, therefore, that part of the evidence becomes  clearly inadmissible. The respondent, Col. Ram Singh,  however, appears to us to be a truthful, upright and straight  forward person because while he chose to admit some parts of the tape recorded statement to be in his voice and as  being correct but denied the rest: he could have, if he wanted,  denied the  whole of  it. It seems to us that as the respondent was a trained and disciplined soldier he told the truth  as far  as appeared  to him.  In fact,  if he had failed to  identify his  voice, then nothing could have been done and his statement would have been  per se inadmissible. 7. As  it is,  the statements  on the  tape recorder seem to have been  recorded in  a most  haphazard  and  unsystematic manner without  following any  logical or scientific method. This will  be clear  from the  fact that  the tape  recorded statements do not indicate 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  D.C.  should  have followed was  to first  indicate the place, time and name of the  person  by  himself  speaking  and  then  recorded  the statement. No such scheme was followed and the court is left to chance  and conjecture  to find  out as to when and where and whose  statement was recorded. As it is, we can only say that the  statement of  the respondent  was recorded only at Kalaka and  this fact seems to be admitted by the appellants in their written submissions (Vol. III, p.59) thus :-           "It is  not the  petitioners’ case  that Col.  Ram           Singh came  to  the  polling  station  or  polling           booth. The  petitioners’ witnesses  (P.W. 27, P.W.           28 and  P.W. 29)  have only  stated that  Col. Ram           Singh came to Burthal Jat at 8.00 a.m., instructed           his supporters not to allow any voters to vote for           Congress (I)  candidate and  thereafter  left  the           place.      " It is, therefore, clear that if at all Col. Ram Singh visited Burthal  booth, he did it only at 8.00 a.m. when the D.C. had not even reached there and, therefore, the question of recording his statement at Burthal Jat does not arise.      In our  opinion, the best course of action for the D.C. should have been to record ’the statements of the respondent and other  persons himself  in writing  instead of recording the same  on  a  taperecorder  which  has  led  to  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 D.C. has resulted in a

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total mess making confusion worse confounded. P.W. 7 has not given the  details to  complete the  picture as  to what the respondent had done. Therefore, the evidence of D.C. On this 444 point is  conspicuous by the absence of any such description or comments.  Indeed, the  D.C. has  just acted  as a silent machine to  whatever was  recorded instead  of applying  his mind as to at what stage the respondent denied his voice and where he admitted the same. We should have at least expected the D.C.  to give  better details in a case like the present one   which,   as   already   mentioned,   entails   serious consequences for  the respondent  if his election were to be set aside.      Having regard  to the  reasons mentioned  above, we are absolutely satisfied  that the  tape recorded  statements of the witnesses  are wholly  inadmissible in  evidence and, at any rate,  they do  not have  any probative  value so  as to inspire any  confidence. Hence,  it is  extremely unsafe  to rely on  such tape  recorded statements apart from the legal infirmities pointed out above.      That should have 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 P.W. 7 have been  flatly denied by R.Ws. 1 and 3, one of whom was a polling officer and the other a constable.      2. A  good part of the tape recorded statement has been vehemently  and  persistently  denied  by  him  (respondent) rightly or wrongly.      3. It  is true  that the searching and gruelling cross- examination of  the respondent  in this court by Mr. Sibbal, 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

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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 8.00 a.m.  and, therefore,  the D.C. who reached there at 12 Noon  could   not  have  recorded  his  statement.  We  are, therefore, not  in a position to hold that implicit reliance should be placed on the evidence led by the appellants. Even if the  respondent made  some admissions  in  his  unguarded moments that would not strengthen the case of the appellants in view  of the  standard of  proof required  in an election matter where  the allegations of corrupt practice have to be proved beyond  reasonable doubt  almost just like a criminal case.      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

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Petition No.  13 of 1982 on the file of the Punjab & Haryana High Court.      The  appellants   are  registered  electors  of  Rewari Constituency No.  86 of the Haryana Legislative Assembly. In the election  held for that Constituency on 19.5.82 Col. Ram Singh, 447 hereinafter referred to as ’the respondent’ who contested as the     Congress  (J)  candidate  was  declared  elected  on 21.5.1982 after the counting was, over on 20.5.82, defeating has nearest rival, Sumitra Devi who is said to be the sister of  Rao   Birendra  Singh   and  had   contested   in   that ’Constituency as  the ’Congress  (I) candidate. Sumitra Devi lost by  a margin  of 8,760  votes. The appellants sought in the election  petition a  declaration that  the respondent’s election is  void under section 100 of the Act. They alleged that there  was direct and indirect interference and attempt to interfere  on the  part of  the respondent and his agents and other  persons with  his consent with the free  exercise of the  electoral right  of  the  electors.  The  respondent stoutly opposed the election petition. Alter considering the evidence and  hearing the  counsel of  both the  parties the learned Judge who fried the election petition found that the appellants tailed  to prove their case beyond all reasonable doubt and dismissed the petition with costs of Rs. 2,000.      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 10.30 a.m. on 19.5.1982. But at about 10.30 a.m. the respondent came there along With  60 or 70 persons including Desh Raj, Ram Krishan and Krishan  Lal of  Kalaka and Sheo Lal Gujar, Rishi Dakot, Umrao Singh, Raghubir Singh, Balbir Singh Gujar, Abhey Singh Gujar and  Suresh of  Rewari. The  respondent was carrying a gun while some of those who accompanied him  were armed with guns, lathis  and swords.  The respondent and his companions threatened With  arms and  terrorised the  electors Who were waiting outside  the 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

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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. A.S.W. 5785 and H.R.P. 534. Two of the respondent’s  companions were  caught by  the public and handed over  to the  police. Suraj  Bhan, Amar Singh, Ishwar Singh and  Basti Ram made a report about the incident to the Returning Officer,  Rewari Constituency  at about 12 noon on the same  day. On  the arrival  of the  police the Presiding Officer of  the polling  station lodged  a detailed  report, giving his  version of the incident and thereupon F.I.R. No. 103 of  1982  was  registered  by  the  police.  The  Deputy Commissioner of  the District  and the  Returning Officer of the Constituency  also came  to the polling station and made enquiries and  tape recorded  the statements  of some of the concerned persons.  The process of polling got disrupted for over one  hour and  a number  of voters  had to refrain from voting. It is clear from these facts that the respondent and his companions  with his consent attempted to interfere with the free  exercise of  the electoral right of a large number of electors  and the  respondent succeeded  in his  plan  to scare away  and compel  some of the electors to refrain from voting at the election.      As regards  the incident at Burthal Jat polling station the appellants’  case is  this :-  As  per  his  pre-planned strategy the respondent visited Burthal Jat village at about 8 a.m.  on  19.5.1982,  accompanied  by  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

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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 19.5.1982 does not support the appellant’s case of any interference or attempt to interfere with the free exercise of the electoral right of  any elector  on the  part of the respondent or any one else with his consent and does not directly disclose 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:

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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 facts/legal  ingredients and do      not disclose  complete cause  of action? If so, what is      its effect? (6)  Whether the  allegations of corrupt practice alleged in      the  election   petition  are   vague  and   lack  full      particulars? If so, what is its effect? (7)  Whether the  averments in  paragraph 7  of the petition      are unnecessary, scandalous, frivolous or vexatious and      calculated to  prejudice a  fair trial?  If so, whether      the same  are liable  to be  struck out  under rule  6,      order 16 Civil Procedure Code? (8)  Whether  the  respondent  himself  and/or  through  his      agents and  other persons  with his  consent, committed      corrupt practice  of undue  influence,  as  alleged  in      paras 9  to 13  of the  election petition or not? 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 10.12.1982  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 19.5.1982 contained in Ex.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 Ex.P.W  7/1 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

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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 Ex.P-9  which purports  to be a report of Man Chand (PW 35) who  has, however,  disowned it  while holding  the Anil Kumar and  Satbir Singh  were canvassing for their candidate at Burthal  Jat as stated by Mahabir Singh (PW 26) but it is not made  out who  their candidate  was. He  found that  the appellants  have  failed  to  prove  this  item  of  corrupt practice. On the findings recorded by him in regard to these and the  other items  of corrupt  practice  alleged  by  the appellants he  dismissed the election petition with costs as stated above.      The points  arising for  consideration in  this  appeal are: 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. P.P.Rao,  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:           "1.(1) The defendant shall, at or before the first           hearing or  within such  time  as  the  Court  may           permit,  present   a  written   statement  of  his           defence.           2. The  defendant must  raise by  his pleading all           matters  which   show   the   suit   not   to   be           maintainable, or  that the  transaction is  either           void 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

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         allegation of  fact of which he does not admit the           truth, except damages.           5. (1)  Every allegation of fact in the plaint, if           not   denied    specifically   or   by   necessary           implication, or  stated to  be not admitted in the           pleading of  the defendant,  shall be  taken to be           admitted  except  as  against  a  person  under  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 100(1) (b) reads thus:           "Subject to  the provisions  of sub-section (2) if           the High  Court 18  of opinion  - that any corrupt           practice  has   been  committed   by  a   returned           candidate or  his election  agent or  by any other           person with the consent of a returned candidate or           his election  agent the  High Court  shall declare           the election  of  the  returned  candidate  to  be           void." 455      Section 123  of the  Act lays  down  what  are  corrupt practices A and sub-section 2 thereof reads thus:-           "123(2) Undue  influence,  that  is  to  say,  any           direct  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           Ex.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

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evidence. I shall refer to them.      In R.  v. Maqsud  Ali [1965]  (2)  All  E.R.  464,  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.  v. Robson  [1972] (2)  All E.R. 699, 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.

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    In Yusufalli  Esmail Nagree  v.  State  of  Maharashtra [1961] (3) S.C.R. 720 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  v. Mahabir Parshad  and Anr.  A.I.R. 1956  Punj. 173;  Mahindra Nath v.  Biswanath Kundu  67 C.W.N. 191; Pratap Singh v. The State of  Punjab [1964]  4 S.C.R.  733 and  B. v. Maqsud Ali [1965] 2 All E.R. 464.      In Shri U. Sri Rama Reddy Etc. v. Shri V.V. Giri [1971] 1 S.C.R.  399, a  decision of  five learned  Judges of  this Court the  following observation  made in  Yusufalli’s  case (supra) has been quoted with approval:           "The contemporaneous  dialogue between them formed           part  of  the  res  gestae  and  is  relevant  and           admissible under  s.8 of  the Indian Evidence Act.           The dialogue  is proved by Shaikh. The tape record           of the  dialogue 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 s.7  of the  Indian           Evidence Act. " In R.M. Malkani V. State of Maharashtra [1973] 3 S.C.R. 417, 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  v. Brijmohan Ramdas Mehra Ors.  [197] Suppl. S.C.R. 281, this Court approved the High Court  relying upon  the tape  recorded reproduction of the successful  candidates’ speeches  to voters  for holding that he had appealed to them in the name of religion.      Mr. Rao  learned counsel for the respondent relied upon the following four decisions in regard to the proof required in cases where election or returned Candidates is alleged to be void on the ground of corrupt practice.      In Chenna  Reddy v.  R.C.Rao E.L.R.  1972 Vol.  40 396, this Court observed:           This Court  has held in a number of cases that the           trial of an election petition on the charge of the           commission of  a corrupt  practice partakes of the           nature of  a criminal  trial in  that the  finding           must be  based not on the balance of probabilities           but on  direct and  cogent evidence to support it.           In  this   connection,  the   inherent  difference           between the  trial of  an election  petition and a           criminal trial  may also  be noted.  At a criminal

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         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  v. Fernandez  [1969] 3 S.C.R. 603, this Court observed:           "Although the  trial of  an election  petition  is           made  in   accordance  with   the  Code  of  Civil           Procedure, it  has 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  v. Mohd.  Osman Shaheed and Others. [1980] 3) S.C.C. 281, 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 v. Thakur Muneshwar Nath Singh and Others., [1984] (4) S.C.C. 649, this Court observed:           "As the  charge of  a corrupt  practice is  in the           nature of  a criminal  charge, it is for the party           who 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  v. The State A.I.R. 1954 Patna, where it was stated  in   the  complaint   that  the   criminal  revision petitioner before  the High  Court insisted  upon going into the room  where the  ballot  papers  were  kept  though  the Presiding Officer  had warned  him to go out of the room and also the  petitioner himself  attempted to  put  the  ballot papers to  the box of one Nitai Singh Sardar and it has been held that  there was  proper evidence to record a finding of

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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 v.  Sant Lal  &  Ors.  [1949] Suppl. (2)  S.C.R. 739,  in support  of his contention about what is  required to  be proved  in  regard  to  an  alleged corrupt practice.  After quoting the provisions of section 2 of 46  and 47,  Victoria. c  51 three learned Judges of this Court have observed:           The words  of the  English statute,  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           [1874] 2 O’M & H. 152           "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 P.Ws. 7 to 10, 12, 14, 17 and 18 on the side of the appellants and of R.W.. 1 to  6 and  22 on the side of the respondent. P.Ws. 7 to 10 are official  witnesses while  P.Ws. 12,  14, 17  and 18 are private individuals.  Similarly, R.W..  l to  4 are official witnesses while R.W.. 5, 6 and 22 are private individuals.      Tara Chand  (P.W.12) is  one of  the appellants. He was the polling  agent of  the Congress  (I) candidate,  Sumitra

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Devi who has been referred to at some places in the evidence as Sumitra Bia, along with Amar Singh (P.W.17). His evidence is that  he retired as polling agent after one hour and P.W. 17  took  over  as  polling  agent  and  thereafter  he  was arranging the  voters in  the queue.  He has stated that the respondent and  5 or 7 of his companions, all of them armed, entered the polling station when he was standing at the gate and they threatened the polling staff at gun point and asked them to  stand aside.  Thereafter the  respondent asked  his companions to  do their  work and  they tore  off the ballot papers from the bundle and affixed the seal in favour of the respondent and  put those ballot papers into the ballot box. The respondent’s  companions, Tula  Ram who  was his polling agent, Ram Krishan (R.W.5), Desh Raj and Krishan Lal put the seals on  the counterfoils  and the thumb impressions on the counterfoils of  the ballot  papers.  Amar  Singh  (P.W.17), appellants’ polling  agent, Mangal  Singh (P.W.18) and Basti Ram were  present. When Mangal Singh (P.W.18) protested, the respondent’s Sikh  companion 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  (P.W.7)  and  the Returning Officer  (P.W.10) came there one hour later. P.W.7 interrogated  the  polling  staff  and  tape-recorded  their conversation. The  polling was stopped for over one hour and many people  got frightened  and went  away from the polling station without casting their votes. P.W. 12 has admitted in his cross-examination that he had 462 canvassed for the Congress(I) 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  (P.W.17) of Kalaka was the polling agent of Sumitra Devi  alongwith P.W.12. He claims to have taken over as   polling agent  from Tara  Chand (P.W.12) one hour after the commencement  of the  poll. He  has stated that at about 10.30 a.m.  the respondent  came inside  the polling station accompanied by 3 or 4 persons. The respondent was armed with a rifle  while one  of his  companions had  a sword  and the other had a pistol and the rest sticks. The respondent asked P.W.17 and the polling staff to stand aside and directed his companions  to  poll  votes.    Thereupon  the  respondent’s companions  took   the  ballot   papers  and  affixed  thumb impressions and  marked the  ballot papers and put them into the ballot  box. When  P.W.18 objected  to the  high  handed behavior of  the respondent  his Sikh  companion thrust  the sword at  Mangal Singh  (P.W.18). When Basti Ram also raised objection the  respondent gave him a thrust with the butt of a   rifle. P.W.17 and others who were in the polling station were pushed  outside. m  e police-men  who were  inside  the polling station  did not  interfere.  Some  time  later  the people from Kalaka village and some police personnel arrived

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and thereupon  the respondent  and his  companions left  the place. P.W.17  and others  detained two  motor-cycles of the respondent’s party  and  T caught hold of two of the fleeing persons and  produced the motor cycles before P.W.7 who came there alongwith  P.W.10. P.W.17  has denied  in  his  cross- examination that  Ajit  Singh  son  of  Rao  Birendra  Singh visited the  Kalaka  Polling  station.  He  has  denied  the suggestion that  he and  other Congress  (I) supporters beat Tula Ram  and drove  him out of the polling station and that he has   given  false evidence  being a  sympathiser of  the Congress (I)  party. Mangal  Singh (P.W.18)  of  Kalaka  has stated in  his evidence  that when  he was  in  the  polling station and  his particulars  were being  checked before  he could cast  his vote  the respondent  armed w with a gun and accompanied by  3 or  4 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  P.W. 18 and others who were in the polling station  to   stand  aside  under  threat  of  being  killed otherwise. When P.W. 18 objected to the 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 R.W. 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. P.W. 18 and others informed  P.W. 10 and the police about what happened. P.W. 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 (P.W.8) 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 10.30 a.m. until  which time  the polling  went on  smoothly,  the respondent accompanied  by some  other persons  reached  the polling station and came into the polling station along with four or  five persons,  carrying a  small gun with him while one of  his companions  was carrying  a pistol and another a sword and  the others  sticks. The E respondent who appeared to be  in a  rage pointed  the gun  towards P.W.8 and others saying that  the  remaining  votes  should  be  polled.  The respondent’s companions  snatched  ballot  papers  from  the officials in the polling station and tore off about 25 or 26 ballot papers  and marked  them in  favour of the respondent and put  them into  the ballot  box. They  put their  thumb- impressions on 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.  P.W.  8  was writing the  report when  P.Ws.7 and  10 accompanied  by the Superintendent  of  Police  arrived.  After  completing  his report P.W.  8 got  it signed  by all  the polling staff and handed it  over to  P.W. 7  and he  recorded his  statement. Ex.P-5 is  the diary  prepared by  P.W. 8 in accordance with Instruction-74 of the Instructions to Polling Officers given by the  Election Commission  of India.  P.W. 8 had deposited Ex.P-5 along  with the other records in the Election Office. He has stated the Ex.P-5 was prepared by him

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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  P.W. 8  to the  police contained in Ex.P-6 on the basis of  which FIR No. 103 of 1982 dated 19.5.1982 had been registered by  Dharam Pal (P.W.9) Assistant Sub-Inspector of police on  19.5.1982. Suffice  it to  say  at  present  that reference has  been made in Ex.P-5 to the respondent putting pressure on  the polling  staff and  getting 25  or 26 bogus votes polled in his favour when there was a lot of noise and commotion in the polling station from 10.30 to 11.30 a.m. as a result of which the polling had stopped. In his report the police also P.W. 8 has stated that the respondent armed with 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 (P.W.9) who had been posted at Sadar Rewari police  station on  19.5.1982 has  deposed about  the registration of  FIR No.  103 of  1982 on  that day  on  the receipt of  a rukka  from Sub-Inspector,  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 19.5.1982.      Bala  Bhaskar   (P.W.7),  the  Deputy  Commissioner  of Mohindergarh was  District Election Officer for the election to the  Haryana Legislative  Assembly held  in May, 1982. He has stated that when he was travelling by car at about 10.30 a.m. between  Monoddola and  Zainabad villages in the course of his  visits to some of the polling stations in the Rewari Constituency on  19.5.1982 he received a wireless message to the  effect  that  the  respondent  had  complained  against Congress (I)  workers saying  that 40  or  50  of  them  had attacked Congress  (J) workers  at Kalaka.  P.W.  7  reached Kalaka polling  station at  12.30 p.m. 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 Ex.P.W. 7/1 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 Ex.P-1 as the voices in the tape were not clear and audible. He has  stated that  the tape record remained in his custody throughout and  was not  tampered with  either himself or by anyone else and that it contains the voices of the Presiding Officer (P.W.8),  the polling officer Roop Chand (R.W.7) and the Police Constable, Mohinder Singh (R.W.3) whose number is

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498. Reference  will be  made later  to the  contents of the tape-record and  to the report Ex.P-2 submitted by P.W. 7 to the Government  about  the  incident  which  took  place  on 19.5.1982 during the elections as it had come to his notice. In his  cross-examination P.W.  7 has admitted that he could not now  identify the  persons whose voices were recorded in the tape  and that the tape is Government property which had been issued  to him  by the  Government and  that the  tape- recorder remained  with him  all  the  time  and  the  tape- recorder and  tape-record and  the transcript Ex.P-1 had not been placed  in the  record room.  It has to be noticed that the respondent  (R.W. 22)  has admitted in his evidence that though  he   had  made   several  reports  to  the  Election Commission and  other Election  Authorities before and after the election  with which  we are concerned in this-appeal he had not made any report against P.W. 7.      Shri Krishan  (P.W. 10) was the Sub-Divisional Officer, Rewari and  Returning Officer for the Rewari Constituency in the election  held to  the Haryana  Legislative Assembly  in May, 1982.  In the  course of  his tour  of the Constituency after 10 a.m. On 19.5.1982 he reached Chalky polling station at about 11 or 11.30 a.m. On receipt of a complaint from the polling station  to the effect that the respondent alongwith some other  persons intimidated  the polling   staff and the public at  that polling  station. He was with P.W. 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 (P.W.7) conducted an enquiry and interrogated the polling staff and the 466 police personnel  and tape-recorded  their conversation. One of the polling officers told P.W. 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 1.6.1982 and that a file had been handled in a way different from the one in which it had been handled until  he handed  over charge  of his office. He has denied the  suggestion  that  the  file  was  created  in  a particular  manner   by  insertion   of  some   papers   for fabricating evidence  in favour of the appellants. It has to be noticed   in  this connection  that  the  respondent  had complained Ex.R.7  dated 4.5.1982 that P.W. 10 is married in the locality and was interfering with the election.      On the  other hand,  it is  the evidence  of Roop Chand (R.W.1) who  was Steno-Typist  in the  office of the Project Officer,  Agricultural   Department  in   Haryana  and   the alternate Presiding  Officer in  Kalaka polling  station  on 19.5.182 that  after the  polling started  at 7.30 a.m. Ajit Singh son  of Rao Birendra Singh came to the polling station at about  8.30 a.m  armed with a rifle and accompanied by 15 or 20  persons and  asked for the respondent’s polling agent Tula Ram  and that  Ajit Singh’s  companions pushed Tula Ram out of  the polling  station. Ajit  Singh remarked  that the polling at  the Kalaka  polling station had always been one- sided and  directed his  companions to  poll votes. When the polling staff  resisted, Ajit  Singh abused R.W.1 and others and asked  his companions  to beat them and they slapped the polling staff. Ajit Singh’s companions picked up some ballot papers and  tore them  off from  their counter-foils and put

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them into  the ballot  box for  about on  hour and  left the polling station  thereafter.  The  respondent  came  to  the polling station  about one hour later and told the Presiding Officer (P.W.8)  that he  should not be partial to any party and he  came to  know that his polling agent had been beaten and that bogus votes had been polled in the polling station. Thereupon P.W.  8 assured  the resondent  that he  would not permit anything  of that  sort to be repeated. About half an hour after  the departure of the respondent from the polling station many  people  of  Kalaka  village  gathered  at  the polling station  and proclaimed  that they  would poll votes forcibly. When  R.W. 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 P.W. 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 10.15 a.m. and P.Ws. 7 and 10 arrived there  subsequently and  arranged for the polling to restart after  making the  electors to  stand in a queue. He has denied that P.W. 7 asked for his name and profession and that he  told him that he was Roop Chand and a Stenographer. He has  stated that  he asked  P.W. 8 to record the visit of Ajit Singh  and his  companions into the polling station and that P.W.  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 R.W.  1 and  has been  denied  by  him.  He  has admitted that  a few  days after  the  election  the  police obtained an  affidavit from  him on judicial stamp paper but he has  denied that  it  was  done  under  pressure  of  the respondent.      Deen Dayal  (R.W.2), a  teacher was the polling officer along with  Dhani Ram  (R.W.4) who is also a teacher. He has stated that  after the polling at the Kalaka polling station went on  peacefully for about an hour Ajit Singh, armed with a pistol,  came with 15 or 20 persons at about 8.30 a.m. and entered Kalaka  polling station  forcibly and  asked for the polling agent  of the  respondent and told his companions to remove him  from there.  Ajit Singh  asked his companions to beat R.W. 2 and others and they were accordingly beaten, and P.W. 8  told them  to allow  Ajit Singh’s  companions to  do whatever they  liked and thus avoid being beaten saying that he would  make a  complaint about the 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  P.W. 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 P.W.8. P.W.8 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  R.W.  4. Meanwhile, Constable  Mohinder Singh,  (R.W. 3)  came inside the polling  station wrested  the ballot  box from the crowd and placed  it at its original place. Soon thereafter a Sub- Inspector of Police and some other constables came and tried tc remove  the crowd from the polling station. About half an hour later P.W. 10

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468 came there  and left  the place  after talking  with P.W. 8. P.W. 7 came there about half an hour thereafter and directed P.W. 8 and the polling staff to conduct the polling properly and polling started again at about 12 noon. He had stated in his cross-examination that he did not make any report either to the  police or  to P.Ws.  7 and  10 though slaps and fist blows had  been given to him  by the miscreants but he asked P.W. 8  after PWs.  7 and 10 left the place as to whether he had reported  about the  maltreatment meted  out to  polling officers and  he answered  in the affirmative. He has stated that P.W.7  talked only  to P.W.  8 and  to no other polling staff and  did  not  tape-record  any  conversation  in  his presence and that he does not know if P.W. 7 had talked with the police  constable who was posted at the polling station. He has   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  (R.W. 3)  who was  on duty  as a police constable at  Kalaka polling station on 19.5.1982 has stated that about  half an  hour after  the polling started at 7.30 a.m. he  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  P.W. 10  come there  about  30  or  45  minutes thereafter and left the place after  talking with P.W. 8 and that P.W.  7 arrived there about 30 to 45 minutes after P.W. 10 left  the place  and talked  to  the  polling  staff  and arranged for the polling starting again at about 12 noon. He has denied in his cross-examination that P.W. 7 had any talk with him  in the  polling station and has stated that he did not make  any report  about the  incident or  the  treatment meted out   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 (Ex.P.W. 7/1) put to him  is his  voice and  also that P.W. 7 interrogated him and he  made a  statement. The appellants’s case of forcible polling by  the respondent’s  men was  put to R.W. 3 and has been denied by him.      The evidence of R.W. 4 is more or less the same as that of R.Ws.  1 to  3 as regards the alleged forcible polling of bogus votes  by Ajit  Singh and  his companions.  He too has stated that  at the  instance of  P.W. 7  who arrived  there about half  an hour  after P.W.  10  left  the  place  after talking to  P.W.8 the polling started again. He has admitted in his  cross-examination that  P.W. 8 had some conversation with P.Ws.  7 and  10 but  he has denied that the respondent came to  the polling  station  armed  with  a  revolver  and

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accompanied by 15 to 20 persons and got some votes polled at gun point  and ran  away along  with his  companions on  the arrival of the police and the villagers.      Ram Krishan  (R.W. 5),  the brother of the respondent’s polling agent  Tula Ram who has not been called as a witness admittedly supported  the respondent in the election held in May, 1982.  He has  stated that  t he  went to  the  polling station for  casting his  vote at  about 7.30  a.m. when the polling started  and that  Ajit Singh,  armed with a pistol, came to  the polling  station at about 8.30 a.m. accompanied by 40  or 50 persons and entered the polling station 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 (R.W. 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 (R.W.  6) has stated that when he reached Kalaka polling station  at 8.30 a.m. in May, 1982 Ajit Singh, armed with a  revolver, came  there with 40 to 50 persons and went inside the  polling station with about 15 to 20 persons. The respondent’s polling  agent Tula  Ram was dragged out of the polling station  and beaten. When R.W. 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 R.W. 6 and denied by him. He too has stated in his  cross-examination that  P.W.. 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  R.W. 22  has stated that when he was in his house  at Rewari  on 19.5.1982  after deciding not to go out of  the house  on that  day R.W. 5 and his polling agent Tula Ram came there at 8.45 a.m. from Kalaka polling station with their  clothes torn  and appearing  to have been beaten badly and  told him  that Ajit Singh accompanied by 50 or 60 persons entered  the  polling  station  and  beat  them  and indulged in forcible polling and that he thereupon went by a car to Kalaka village alongwith R.W. 5 at about 9.15 or 9.30 a.m. On  that day.  Leaving his  car at  some k  distance he walked to  the polling  station and found 50 or 60 villagers collected there and he entered the polling station protested to P.W.  8 and  brought the complaint given to him by R.W. 5 and Tula  Ram to  his notice.  After P:W. 8 assured him that nothing of  that sort  will be  allowed  to  happen  in  the

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remaining part  of the  day he  returned from  Kalaka 7 or 8 minutes later  and sent a written report to the police about the  incident  with  copies  to  P.W.  7  and  the  election authorities and  received a  message from the police station at 10.30 a.m. that his complaint had been flashed to P.W.. 7 by wireless message and that appropriate action was expected to be  taken soon.  He has further stated that in his letter Ex. R.  7 dated 4.5.1982 he requested for the appointment of an observer  because of official interference and had stated that P.W.  10 was  married in that area and was 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 19.5.1982 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 19.5.1982 that P.W. 7 was acting in any way against him in a prejudicial manner. He has admitted that he has not stated in  his written  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  P.W. 7. He has stated that he did not make any complaint  naming  Ajit  Singh  specifically  about  the incident at  Kalaka because the picture was not clear to him at  that  time  and  not  because  such  an  incident  never happened. The  appellants’ case of booth-capturing and bogus polling by the respondent in Kalaka polling station had been put to  R.W. 22 and denied by him. The tape-record (Ex. P.W. 7/1) was  played before  him and  he has stated that it does not contain his voice and that it is rather the voice of Rao Birendra Singh.      The oral  evidence of R.Ws. 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 R.W. 22 that R.W.  5 and  Tula Ram came and told him that Ajit Singh accompanied by  50 or 60 persons entered the polling station and beat  them and  indulged in  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 R.W. 5 and his brother Tula  Ram. The  respondent has denied in his written statement that  the   process of  polling got  disrupted for over an  hour at Kalaka polling station and that a number of voters had  to refrain  from casting  their votes;  but,  as mentioned above  it has  been admitted  by R.Ws. 1 to 4 that the polling  was suspencial  at Kalaka  polling  station  on 19.5.1982 and  that it re-started after the arrival of P.Ws. 7 and  10  at  the  polling  station  some  time  after  the departure of  the respondent  and his companions. though the case

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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 19.5.1982 and that the polling got disrupted as a  consequence thereof  and that it was recommended after the arrival  of P.Ws.  7 and 10 and to reject their evidence that Ajit Singh and his men were the cause.      Under  instruction  74  of  Instructions  to  Presiding Officers  issued   by  the  Election  Commission  of  India, extracted above,  the Presiding  Officer is bound to draw up the proceedings connected with the taking of the poll in the polling station  in the  diary  to  be  maintained  for  the purpose in  the form  in which Ex.P.-5 had been filled up by the Presiding  Officer (P.W.  8). The  Presiding Officer  is directed by  the instruction to go on recording the relevant events as  and when  they occur  and  not  to  postpone  the completion and  filling of  all the  entries in the diary to the completion of the poll and he has to mention therein all the important  events. Even  the alternate Presiding Officer (R.W. 1)  has stated  in his  evidence  that  the  Presiding Officer (P.W.  8) told  him that  it was  his duty to report about the  incident and  he would  do so.  It is  seen  from Column 18  of Ex.P-5  relating to the number of votes polled that 195  votes were polled from 8 a.m. to 10 a.m., 205 from 12 noon  to 2  p.m., 106+3  from 2  p.m. to 4 p.m. and to on upto 4.30  p.m. and that in the disputed period from 10 a.m. to 12  noon only  51 votes  were polled.  In column 21 it is stated that  the polling  was interrupted  and disrupted  by rioting and  open violence and that from 10.30 a.m. to 11.30 a.m. the  respondent put  pressure on  the polling party and got 25/26  bogus votes  polled in his favour and there was a lot of noise and 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 (P.W. 8) who has  deposed  about  the  incident  has  stated  in  his evidence that  Ex.P.-5 is the diary which he submitted after the poll,  that it  was prepared  and signed  by him  and is correct and  that he  deposited  it  along  with  the  other records in  the election office. As stated earlier, what has been elicited  in his  cross-examination is  that apart from crossing column  20(E)   relating to  intimidation of voters and other persons he has not 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 P.W. 8 that he had prepared Ex.P-5  later under  the pressure  and influence of the defeated  candidate Sumitra Devi through her brother Rao Birendra Singh.  Nor is  there any positive evidence to that effect on  the side  of the respondent. Therefore, it is not known on  what basis the learned trial Judge has observed in his judgment  that Ex.P-5  appears to  have been  made up by P.W. 8  under the  pressure and  influence of  the  defeated candidate Sumitra  devi through  her  brother  Rao  Birendra Singh. In  the absence  of any  material on record or even a suggestion to  that effect to the Presiding Officer (P.W. 8) who has  stated that he filled it up correctly and deposited it alongwith  the other records in the election office it is

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not possible  to agree  with the  view of  the learned trial Judge that  Ex.P-5 has been got up later by P.W. 8 under the pressure and  influence of  the defeated  candidate  Sumitra Devi through  her brother  Rao  Birendra  Singh.  Ex.P-5,  a contemporaneous document  prepared by  the Presiding Officer (P.W. 8) as required by Instruction 74 (supra) and deposited by him  in the  election office  after  the  poll  was  over alongwith the  other records  is a  very valuable  piece  of documentary evidence  corroborating the oral evidence of the Presiding Officer  (P.W. 8)  and other 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 P.W. 8 is the copy of the report of P.W. 8 to the  police appended to FIR No. 103 of 1982, Ex.P-6 dated 19.5.1982,  prepared   by  the  Assistant  Sub-Inspector  of Police, P.W.  9 on receipt of a rukka from the Sub-Inspector of police,  Deep Chand.  P.W. 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 Ex.P-6.  The learned  trial Judge  has rejected Ex.P-6 as being  inadmissible   in  evidence   for  corroborating  the evidence of  P.W. 8  about the  incident in  Kalaka  polling station on  the ground that the original report of P.W. 8 to the police had not been summoned by the appellants. It is no doubt true  that the  original had  not been summoned by the appellants before  P.Ws. 8  and 9  deposed about  Ex.P-6  in their evidence.  P.W. 8 has stated in his evidence that when he was  writing the  report soon  after the Sub-Inspector of police came  to the polling station after the respondent and his companions had 474 left the place, P.Ws. 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 P.M.  in  complaint  to  the  police appended to Ex.P-6 that at about 10.30 a.m. 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 25/26 ballot papers  at gun point on account of which P.W. 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 (P.W. 17)  of Sumitra  Devi and  appropriate action  may  be taken by  the police.  It is  seen from  the record that the appellants had  taken steps  to summon  FIR No.  103 of 1982 dated 19.5.1982  and the  Head  Constable  of  Sadar  Rewari Police station  to prove  the incident at Kalaka. The record further shows  that the  respondent  also  had  applied  for summoning the  orders of  Court disposing  of FIR No. 103 of 1982 as  also FIR No. 104 of 1982 to which reference will be made in  the  course  of  the  discussion  relating  to  the incident at  Burthal Jat polling station. The respondent had also applied  for summoning  the Inspector  of Police, Kedar Singh to  appear  with  the  relevant  records  showing  the disposal of the above two FIR. But subsequently he filed CMP 31 (E)  of 1983  for substituting  and their  person in  the place of  Inspector Kadar Singh and though that petition was opposed by  the  appellants  the  trial  Court  allowed  the petition  on   the  same  day  i.e.  21.2.1983  itself.  The

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appellants also  had filed  CMP 41(E)  of 1983 for summoning the file relating to those two FIRs from Sadar Rewari Police station. That application was dismissed by the learned Trial Judge on  25.2.1983. Thus it is seen that the appellants who had   doubt not  taken  steps  for  summoning  the  original complaint given  by P.W.  8 to  the  police  at  the  Kalaka polling station  in the  first instance probably because the respondent himself  had originally  sought the production of the relative records from the police station had later taken necessary steps  to summon the original complaint as also to recall P.W.  8  for  deposing  about  that  fact.  In  these circumstances, I  find that the necessary foundation must be held to  have been  laid for  adducing secondary evidence by way of the copy appended to FIR No. 103 of 1982 (Ex.P-6) and that  the   appellants  are  therefore  entitled  to  adduce secondary evidence  of the  contents of  that complaint. The complaint of  P.W. 8  to the  police given immediately after the incident was over and soon 475 after the  arrival of the police personnel and the officials P.Ws. 7  and 10  and the Superintendent of Police is another contemporaneous document and a valuable piece of documentary evidence corroborating  the  evidence  of  P.W.8  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 (Ex.P.W. 7/1) of which  Ex.   P‘l  is   a  transcript   prepared  under   the instructions and  mostly in  the presence  of P.W.  7 by his Stenographer. P.W.  7 has stated in his evidence that inside the polling  station at  Kalaka he tape-recorded the version given by  the officers  about the  incident in  that polling station in  Ex.P.W. 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 Ex.P-1 as the voices in the tape were not clear and audible. He has also stated that the tape-recorder which had been supplied to him by the Government, the tape Ex.P.W. 7/1 and  the  transcript  Ex.P-1  remained  in  his  custody throughout and had not been deposited by him in the election office. He has not been questioned as 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 P.W.  7 or  the appellants from  the fact  that the  tape, the tape-recorder and the  transcript had  not been  deposited by P.W.7 in the election office.  No suggestion  has been  made to P.W. 7 in cross-examination that  he had  in any way tampered with the tape-record  (Ex.P.W.   7/1)  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 (Ex.P.W.  7/1) holding (1) that it is tampered  with later,  disbelieving the  evidence of  the P.W. 7 that a portion of what he had recorded at the Burthal Jat  polling   station  was   erased  by   his   own   voice inadvertently on  the some day and (2) that the authenticity of  the   transcript  (Ex.P.1)  has  not  been  proved  with definiteness. It is not reasonable to reject the tape merely because some  portions thereof  could not  be  made  out  on account of  noise and interference not only outside but also inside the  polling station  when what was being elicited by

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P.W. 7 from the polling officers and the police-man (R.W. 3) was being  H recorded.  In R.  v. Maqusud  Ali (supra)  tape recorded conversation  of the  two accused  in a murder case has been held to be 476 admissible in  evidence for the purpose of proving the guilt of the  accused and  it has  been observed  that  the  tape- recording was  a matter of the utmost importance and that it is indeed  the highly  important piece of evidence which the defence strenuously  sought to  keep out.  In R.  v.  Robson (supra) in  which reference  has been  made to K. v. 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. v. Shri V.V. 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).      P.W. 7  has stated  in his  evidence that  the voice of

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P.W. 8  who was  the Presiding  Officer  at  kalaka  polling station is recorded in the tape, that the tape contains also he conversation  of the  alternate Presiding  Officer,  Roop Chand (R.W.  1) and that the voice of the Constable Mohinder Singh (R.W.  3) who  was on  duty at the polling station and had made a complaint to him is also recorded in the tape. It is true  that he  has admitted in his cross-examination that he cannot  identify  the  voice  with  any  of  the  persons mentioned by  him. The  transcript of  the tape  (P.W.  7/1) after it had been recorded in a larger tape with the help of a  re sophisticated instrument in this Court was prepared by this Court  and some  portions thereof  has been admitted by R.W. 22  to be  in his  voice and  he has  recognised in the larger tape the voice of even P.W. 7 in some portions of the conversation which  admittedly took  place between  him  and P.W. 7  in the  office of  R.W. 10  at about  7.30  p.m.  On 19.5.1982. It  is seen from the transcript that some one had answered the  question about  what his  name and number were and that  one Mohinder  Singh had  answered saying  that his name and number were Mohinder Singh and 498 which tally with those of  R.W. 3.  In the  answer to question as to how many persons came  inside the  polling station Mohinder Singh had stated that  four persons  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 R.W.  1. It  is seen  from the tape that P.W. 17 had also answered certain  questions saying  inter alia  that he  was Amar Singh,  polling agent of the Congress (I) candidate and that there  were 5 or 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  P.W. 7  at the office of  P.W. 10  the fact  that P.W. 7 had gone to Kalaka polling station  immediately after the respondent and others left the  place and that he got the statements tape-recorded there was  mentioned by  P.W. 7  to the respondent. In these circumstances great  reliance has  to be  placed on the tape (Ex.P.W. 7/1) and is contents not only for corroborating the evidence of  P.Ws. 7 and 8 to the extent they go but also as res gestae  evidence of  the first part of the incident. The learned trial Judge was not justified in rejecting the tape- record (Ex.P.W. 7/1) and the transcript (Ex.P-1). It must be remembered that  the respondent  who had openly disowned any art of  the tape  as containing  his voice  and had,  on the other hand,  gone to the extent of saying in the trial Court that it rather contained the voice of Rao Birendra Singh has admitted in this Court portions of that tape as being in his voice and  that he  has stated  that he  cannot identify any voice other than those of himself and P.W. 7.      Coming now to Ex. P-2, P.W. 7 has stated in that report that around  10.30 a.m.  when he  was proceeding  by his car between Manodola and Zainabad villages he received a message on the  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

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village. He  immediately directed the Station House ’Officer of Sadar  Rewari to  rush to  the village.  At 11.35 a.m. he received a  message on  the police  wire less that villagers had refused  to vote  in Kalaka  alleging that  Congress (J) workers had  polled  some  bogus  votes  in  Kalaka  polling station. Therefore  he proceeded  to Kalaka  polling station and interrogated  the  Presiding  Officer  and  the  polling officers  of   the  polling   station   and   recorded   the conversation in  his tape-recorder.  When he  was told  that Congress (J)  workers came  into  the  polling  station  and snatched ballot  papers from  the polling  staff and  polled them in  favour of  the respondent,  he advised  the polling officer to  accept tendered  votes from the electors if they came to  the polling  station for  voting and  he thereafter went to  Burthal Jat.  This report  submitted by P.W. 7 some time  after   the  results   of  the   poll  were  announced corroborates the evidence of P.W. 7 about what he did at the polling h  station soon  after he went there on receipt of a wireless message  about the polling of bogus votes in favour of the 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 P.Ws. 12 and 17 who have  denied it  is that  Ajit Singh  visited the Kalaka polling station.  No suggestion  was  made  to  any  of  the witnesses examined  on the  side of  the appellants  in  the cross-examination that Ajit Singh came armed with some armed companions and beat R.W. 5 and Tula Ram and dragged them out and that  they forcibly  polled bogus votes. Such a case was projected  by  the  respondent  only  after  the  respondent started to  let in  oral evidence  on  his  side  after  the appellants   had    closed   their    evidence.   In   these circumstances, when questioned as to why he had not made any complaint naming Ajit Singh specifically for the incident at Kalaka R.W.  22 has  stated in  his evidence  that it is not because such  an incident  never happened  but  because  the picture was  not clear  at that  time. It  is impossible  to accept this  explanation of  R.W. 22,  for the  polling took place on  19.5.1982 and  the respondent  filed  his  written statement  in  the  election  petition  long  thereafter  on 14.9.1982. If, as the respondent would have it, Tula Ram and R.W. 5  came to  his residence  at Rewari  in the morning of 19.5.1982 and  informed him about the incident at the Kalaka polling station and there after he went there and complained to P.W.  8 about  it, he  should have come to know about the details  of   the  incident  before  he  filed  his  written statement long  thereafter on  1.9.1982. If by 14.9.1982 the picture of  what happened  at  the  Kalaka  polling  station 19.5.1982 was  not clear  it is  not known how it would have become clear only after appellants had closed their evidence and just before the respondent began to let in oral evidence on his  side. Therefore,  the explanation  of R.W.22 that he had not  named Ajit  Singh specifically  in relation  to the incident at  the Kalaka polling station not because it never happened in  the manner  stated by his witnesses but because the picture was not clear at that time cannot be accepted at all.      R.W. 22  had stoutly denied in the trial Court that the

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tape record  (Ex. P.W.  7/1) contained  his voice  but added that it is rather the voice of Rao Birendra Singh. But after the tape  was recorded  with the aid of a more sophisticated instrument by  playing it  in this  Court in the presence of the respondent in the 480 office and also in the open Court, R.W. 22 has admitted some portions of  his conversation  with R.W.  7 in the office of P.W. 10  at about  7 or 7.30 a.m. On 19.5.1982. In the cross examination made  in this  Court after R.W. 22 had heard the re-recorded larger  tape being  played in  the Court R.W. 22 has stated  that he  could not  recognise the  voice of  any person in  the tape other than  those of himself and P.W. 7. If the  tape used  by P.W.  7 for recording the conversation could not  be followed  and understood  clearly when  it was played in  the trial  court with the very same instrument by which it  was recorded what R.W. 22 could have said was that he cannot say whether it contains his voice but he could not have gone  to the  extent of saying that it does not contain his voice  but it  rather contains the voice of Rao Birendra Singh. This  also shows  that the evidence of R.W. 22 is not reliable.      In his  cross examination  in this  Court R.W.  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 19.5.1982 and he is quite  positive about it. But in the  later portion  of his  evidence in this Court he has stated that  not only his admission of the transcript of the tape (Ex.  P-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 19.5.1982 are both correct and that he would emphasize  that he did not go to the police station at all on  that day. He has also stated that although the voice in the tape says that he went to the police station and that voice appears  to be  his 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 P.W. 10 to meet P.W. 7 at about 7 or 7.30 p.m. On 19.5.1982. This also shows that the evidence of R.W. 22 is not reliable.      R.W. 22  has admitted  the voice  in the tape that when P.W. 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 11.30 a.m. and that it is correctly recorded in  the tape.  It is  seen from the transcript that the respondent  had stated  in  that  conversation  that  he thereafter went to the Kalaka polling station and questioned his men  as to  whether they  were not  ashamed that  two or three ’chaps’  belonging to  the  same  village    had  been beaten. However, he would say in his evidence that he 481 went to  Kalaka only once on 19.5.1982 and that it was about 9 or  9.30 a.m.  There is abundant unimpeachable evidence on the side  of the  appellants to  show that  the  respondent, armed  with   a  rifle,   visited  Kalaka   polling  station accompanied by  some armed persons at about 11.30 a.m. or 12 noon, and indulged in the polling of bogus votes. P.W. 7 had stated in  the course of his tape recorded conversation with the respondent  in the  office of  P.W 10 at about 7 or 7.30 p.m. on  19.5.1982 that  he visited  Kalaka polling  station soon after  the respondent  had left that place. R.W. 22 has admitted in  his cross  examination in  this Court  that the

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statement of  P.W. 7  that he  was there at about 12 noon or 12.05 p.m.  refers to Kalaka polling station and that P.W. 7 told him  that the  Presiding Officer  told him  a different story about  the incident  which took  place in that polling station. It  is, therefore,  clear that  the respondent  has attempted to  make a  futile effort  to show that he visited the Kalaka  polling station  with R.W.  5 and others only at about 9 or 9.30 a.m. On 19.5.1982 and not at the time of the first part of the incident alleged by the appellants.      The written statement is silent on the question whether the respondent  visited Kalaka  polling station on 19.5.1982 except  a   mere  denial.   The  respondent   unsuccessfully attempted to file an additional or amended written statement to the effect inter alia that he had decided not to move out of his house and had not gone out of his house on 19.5.1982. This portion  of the additional or amended written statement which had  not been  received by the Court was put to him in cross examination  by Mr.  Sibbal. R.W.  22 has  stated that there appears to be a typing error in that statement that he did not  move out  of his house on that day and that what he meant to  say was  that as a consequence of the assurance of his 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 19.5.1982 and that the fact that he went to Kalaka village on 19.5.1982 is not mentioned in that amended written statement though inspite of deciding not to move out of his house on that day he did go to Kalaka village on  that day.  This also  shows that the evidence of R.W. 22 is not reliable.      In the  election petition  it is alleged in relation to the 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 0.8 r. 5 of the Code of Civil Procedure which applies to proceedings in election petitions it must  be deemed  to have been admitted by the respondent. Order 8 rule 5  reads:           Every allegation  of fact  in the  plaint, if  not           denied specifically  or by  necessary implication,           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 R.W. 22 had repeatedly denied that Anil Kumar and Satbir Singh were in any way related to him though in a  portion of his evidence he would say that satbir Singh is the  adopted son  of Jagmal Singh, father of his wife who was divorced  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  19.5.1982  for  offences  under section 107  and 151  of the  Code of Criminal Procedure and

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that he had not exhibited grave concern about Anil Kumar and Satbir Singh  in the  course of his conversation with P.W. 7 in the  office of  P.W. 10 at 7 or 7.30 p.m. On 19.5.1982 or told P.W.  7 that  they were his relatives. But in his cross examination in  this Court  he has  admitted that Anil Kumar and Satbir  Singh had  been arrested  by the  police at  the instance of  P.W. 7  at the  burthal Jat  polling station on 19.5.1982 and  that he had referred to them as his relations only because  P.W. 7  had not taken any steps inspite of his repeated representation in regard to the arrest of those two persons. It  is not  possible to accept the evidence of R.W. 22 that  because no  steps were  taken  by  P.W.  7  on  his repeated requests  for the  release of Anil Kumar and Satbir Singh he told P.W. 7 that they were his close relatives, for he had  admitted in his evidence in this Court that he would have left no stone unturned if his partymen and workers were harassed even  though they  may not  be  his  relatives.  It appears from this portion of the evidence of R.W. 22 that it 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 19.5.1982.  He has  stated in  his evidence  in this Court that because  he was  told by  his workers  that two  of his relatives had been arrested and their identity was not clear to him  when he  had the  Conversation with  P.W. 7  in  the office of  P.W. 10  on 19.5.1982. he referred to them in the course of  his conversation  as his  relatives. He  has also stated that  it is  only after  P.W. 7 mentioned their names and identity  that he  new that  they were  Anil  kumar  and Satbir Singh  and that  they were  not his relatives. In the subsequent portion of his evidence he has stated that he had never deposed  in this  Court that P.W. 7 mentioned the name of Anil Kumar to him. In an other portion of his evidence in cross examination  in his  Court he  has admitted  that  the statement in that conversation that he told P.W. 7 that Anil Kumar and  Satbir Singh were his relatives is correct. Thus, it is  seen that  R.W.. 22 has given varying versions on the question whether  Anil  Kumar  and  Satbir  Singh  were  his relatives or not though he has admittedly informed P.W. 7 in the course  of his  conversation with  him in  the office of P.W. 10  on 19.5.1982  that they  were his  close relatives. This also  shows  that  the  evidence  of  R.W.  22  is  not reliable.      The evidence  of the  private witnesses 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 (P.W.8) and received ample corroboration from  the evidence  of P.Ws.  7 and  10. Their evidence is corroborated by the reliable and contemporaneous documentary evidence  by way  of Exs.  P-5, P-6 and the tape record Ex.  P.W.7/1 which are unimpeachable and also by what has been  stated by P.W. 7 in his report (Ex. P-2) submitted by him  to the Government some time 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  P.W. 8  and the other witnesses who have deposed  about the  same on  the side of the appellants election petitioners  and  hold  that  the  appellants  have proved satisfactorily  and beyond reasonable doubt the first part of  the incident in Kalaka polling station, namely that the respondent  went armed  with  a  rifle  with  25  or  30 companions and entered the polling station with 4 or 5 armed

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companions and threatened the Presiding Officer (P.W. 8) and others including  the polling agents who were present in the polling station  with the  use of  force and got some ballot papers marked in favour of the respondent polled forcibly by his 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 (P.W. 12), Sheo Chand (P.W. 13), Puran (P.W.  14), Inder  Singh (P.W.  16) and  Mangal  Singh (P.W. 18),  on the  side of the appellants. Gur Dial who has been referred to in the election petition in this connection was tendered as P.W. 15 for cross-examination but he has not been  cross-examined   by  the   learned  counsel   for  the respondent. P.W.  12 who  was one  of the  electors and  the polling agent  of Sumitra  Bai in the election with which we are concerned  at the Kalaka polling station has stated that when he  was arranging  the electors to stand in a queue for the purpose  of voting, the respondent came there with 60 or 70 persons  at about 10.30 a.m., The respondent armed with a gun while  some of  his companions  were armed  with swords, pistols  and  sticks.  The  respondent  and  his  companions threatened PWs.  14,15,17 and others including Kesar Lal 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 P.W. 12 knows only Desh Raj Krishan  Lal and  Ram Krishan  (R.W. 5)  of  Kalaka  and Balbir Singh,  Raghubir Singh  and Umrao  Singh. P.W. 12 has not been seriously examined on this portion of his evidence. What has  been elicited  in his cross-examination is that he was the polling agent of Congress (I) candidates even in the earlier elections and he had  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.      P.W. 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 a.m. the respondent came there at  about 10 a.m. alongwith 50 or 60 persons in two or three vehicles  namely,   a  truck   and  two  motor  cycles.  The respondent  was  armed  with  a  gun  while  his  companions including Desh  Raj, Krishan  Lal and  Ram Krishan  (R.W. 5) were armed  with swords, rifles and lathis. Lambardar Ishwar (P.W. 16),  Puran (P.W.  14),  Ram  Singh  and  others  were standing  in   the  queue   at  that  time.  The  respondent threatened P.W.  13 and  others saying that they cannot cast their votes  and he  asked them  to go  away under threat of

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being beaten  and shot,  and out  of fear P.W. 13 and others who were  standing in  the  queue  ran  away.  It  has  been elicited in his cross-examination that he came back and cast his vote at 2 p.m. and that he cannot say whether the others who were in the queue and had run away had come again or not for casting their votes.      P.W. 14  has stated  that he  had gone  to the  polling station at  about 10 or 11 a.m. for casting his vote and was standing in  the queue alongwith others. The respondent came there armed  with a  gun, accompanied  by 50  or 60  persons including Desh  Raj, Krishan  Lal, Balbir Singh, Ram Krishan (R.W. 5)  and a  Sikharmed with  a kirpan.. The respondent’s companions created a commotion and the respondent threatened P.W. 17 and others who were in the queue to run away on pain of being  killed otherwise  and out  of fear all the persons who were  in the queue ran away. In his cross-examination he has stated  that about 15 or 20 persons were standing in the queue when  the respondent and his companions arrived at the polling station  and that  he cast his vote later at about 3 p.m. after  calm prevailed  all around.  He has  denied  the suggestion that he had given false evidence being a Congress (I) worker.      Ishwar Singh  (P.W. 16) the Lambardar of Kalaka village has stated that when he was standing in the queue along with 14 or 15 persons at about 10 or 10.30 a.m. awaiting his turn for casting  his vote the respondent came there, accompanied by 3  or 4  persons including Desh Raj and Krishan Lal (R.W. 6) of  his village and threatened to kill him and he was hit with the  butt of  a gun  by one  of the  companions of  the respondent and  he ran  away. He  has also stated that P.Ws. 13,14,15 and  17 were  also standing  in the queue alongwith him and  that after  he informed  the people  of the village that the  respondent had  come and threatened him the people of the  village  collected  and  came  towards  the  polling station whereupon  respondent and  his companions  ran  away leaving  behind   two  motor-cycles  by  which  respondent’s companions had come there. There is abundant evidence on the side of the appellants, 486 referred to  above, to  show that  when  P.W.  7  and  other officials arrived  after the  incident in  and at the Kalaka polling station  they found  two motor-cycles  abandoned  at that place.  P.W. 16  has denied  the suggestion that he has deposed falsely  being the  supporter of  the  Congress  (I) party.      P.W. 18  has stated  that when  he  was  inside  Kalaka polling station  and  his  particulars  were  being  checked before he could be allowed to vote the respondent came there and that  20 or  25 persons  were standing  in the queue ran away. He  has admitted  in his cross-examination that he had canvassed for  the Congress  (I) party  but has  denied  the suggestion that  he has always been helping the Congress (I) candidates and  has given  false evidence 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 19.5.1982  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

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R.W. 22  and his  witnesses that  R.W.  22  went  to  Kalaka polling station  by a car with some of his men only at about 9 or  9.30 a.m.  On 19.5.1982 could not be accepted and that the respondent  had received information at about 10.30 a.m. about some  Congress  (J)  workers  having  been  beaten  by Congress (I)  workers in  Kalaka,  which  message  had  been flashed by the police wireless and received by P.W. 7 and he went there  only thereafter. There is unimpeachable evidence on the  side  of  the  appellants  to  show  that  when  the respondent went  inside Kalaka  polling station  he was in a rage. In  these circumstances,  it is probable that while in such a  mood after  receipt of  some report that his workers were beaten  by Congress (I) workers he went there and asked his men  whether they were not ashamed about 2 or 3 of their men of  the same  village having  been beaten  and  that  he thereafter indulged  in the  acts alleged  in  the  election petition both  outside and  inside the  polling  station  at Kalaka. P.W.  7 who  reached  Kalaka  polling  station  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 10.30  a.m. on  19.5.1982, 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  P.Ws. 7,  9 and  10  who  are  official witnesses and  of Mahabir  Singh (P.W. 26), Dharam Vir (P.W. 27), Thavar  Singh S (P.W. 28), Amir Chand (P.W. 29), Surjit Singh (P.W.  30), Raghubir  Singh (P.W.  31), Shamsher Singh (P.W. 32),  Kishori Lal  (P.W. 33), Ram Narain (P.W. 34) and Mam Chand  (P.W. 35) on the side of the appellants. There is evidence of  Ravi Datt Sharma (R.W. 11), Parbhati (R.W. 12), Ami Lal  (R.W. 13),  Sheo Chand (R.W. 14) and the respondent (R.W. 22) on the side of the respondent.      P.W. 26 of Burthal Jat village was the polling agent of the respondent  himself and he had filed the form (Ex. P-16) dated 18.5.1982  for the same. He has stated in his evidence that he  had gone  to the  polling station at 7 a.m. and had not seen  any incident  at that place. It is clear that P.W. 26 was  not prepared to go the whole hog to support the case of the 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.  P.W.  26  has admitted in  his cross-examination  that  Satbir  Singh  was

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known to  him previously  and that  he (P.W. 26) was on duty inside the polling station.      P.W. 27  of Burthal  Jat  village  has  stated  in  his evidence that  he had gone to Burthal Jat polling station at 8 a.m.  for casting  his vote  in the  election held in May, 1982. The 488 respondent came  there at  about 8 a.m. accompanied by 50 or 60 persons  and told  his polling  agents, Mahabir and Udhey Bhan that  he was  leaving some  persons behind and he asked them to  see that  no one  is  permitted  to  vote  for  the Congress (I)  candidate and  that they should ensure to have maximum votes  polled in his favour in that polling station. The respondent  left behind 15 or  16 persons including Anil Kumar and  Satbir Singh,  one of  them a  Sikh armed  with a sword and  the others  with pistol  and sticks and the other persons who  came with the respondent went away with him. In his cross-examination he has stated that the respondent came to Burthal Jat polling station in a car while his companions came by  a motor-cycle,  a jeep  and a truck. No doubt he is unable to  mention the  numbers or colour of the vehicles or the colour of  the turban of the respondent’s Sikh companion and he  has stated  that he cannot identity Satbir Singh. He has denied  the suggestion  that he  is a  supporter of  Rao Birendra Singh  and his  sister and  that the respondent did not come to Burthal Jat polling station at all on that day.      P.W. 28  who belongs  to Burthal Jat village has stated in his  evidence that  after he  went to the polling station the respondent  came there  accompanied 50  or 60 persons at about 8 a.m. The respondent was armed with a small gun while 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.      P.W. 29  who belongs  to Burthal Jat village has stated in his evidence that he went to the polling station at about 8 a.m.  for casting  his vote  in the election with which we are concerned.  The  respondent  accompanied  by  50  or  60 persons came  there at about 8 a.m. and sent for his polling agents Mahabir  and Udhey Bhan and told them they should not permit  anyone  to  vote  in  favour  of  the  Congress  (I) candidate. PWs.  27 and  28  and  many  other  persons  were present when  the respondent  said so.  The respondent  told Mahabir and Udhey Bhan that he was leaving behind Anil Kumar and Satbir  Singh for  their help alongwith 15 or 20 persons who were found by P.W. 29 to be armed with sticks. P.W. 489 29 was  not permitted  to  cast  his  vote  earlier  and  he therefore,   came again  and cast  his vote at 3 p.m. He has stated in  his cross-examination  that he  returned  to  his house after  8 a.m. Out of fear and went back to the polling station at 3 p.m. for casting his vote and stayed there till the  afternoon.  He  has  denied  the  suggestion  that  the respondent did not visit Burthal Jat polling station on that day.      P.W. 30  who belongs  to Burthal Jat village has stated in his evidence that he started to go to the polling station at about  10.30 a.m.  for casting  his vote  in the election

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with which  we are  concerned.  When  he  emerged  from  his village to  proceed to  the polling  station for casting his vote Anil Kumar and Satbir Singh met him and asked him as to whom he was going to cast his vote and they insisted that he should vote for the respondent. On his refusal to do so Anil Kumar and  Satbir Singh  threatened P.W.  30  when  2  or  3 persons armed  with  sticks  were  present  with  those  two persons and  he therefore  returned to his house. He went to the polling  station at about 3.30 p.m. for casting his vote and learnt  that  Anil  Kumar  and  Satbir  Singh  had  been arrested  by  the  police.  He  has  stated  in  his  cross- examination that  he does not know to which place Anil Kumar and Satbir Singh belong and that when he came to the polling station later  at about  3 p.m.  he was  told that those two persons were  Anil Kumar and Satbir Singh. He has denied the suggestion that  he had  been a  supporter of  Rao  Birendra Singh in  all the  elections and  that he  has  given  false evidence.      P.W. 31  who belongs  to Burthal Jat village has stated in his  evidence that when he went to the polling station at 11 a.m.  for casting  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. p.m. and learnt that Anil Kumar and Satbir  Singh had been taken into custody by the police. He has  admitted in  his cross-examination  that he  did not complain to  anybody about  the threat but he has denied the suggestion that he has given false evidence.      P.W. 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  2.30 p.m.  When he  approached the main gate of  the polling  station he  met Anil  Kumar and Satbir Singh and  they asked him to support the respondent and when he told  them that  it was  open to  him  to  vote  for  the candidate of  his own  choice there  was an  altercation and they started  beating him and he was rescued by P.Ws. 33, 35 and others  of his  village. Meanwhile,  an  Assistant  Sub- Inspector of  police came  there by  jeep  and  they  hurled abuses at  him even  in the  presence of  the Assistant Sub- Inspector  of  police  and  thereupon  that  police  officer arrested  Anil  Kumar  and  Satbir  Singh.  He  saw  a  jeep containing sticks  parked there,  and the people who were in the jeep  ran away when the police arrived. He brought these facts to  the notice  of P.Ws. 7 and 10 when they 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 P.Ws. 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.

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    P.W. 33 who is the chowkidar of Burthal Jat village has stated in  his evidence  that when  he went  to the  polling station at about 2.30 or 3 p.m., during the last election to the Haryana  Legislative Assembly  he  saw  Anil  Kumar  and Satbir Singh  abusing and  beating  P.W.  32.  P.W.  33  and Lambardar Mam  Chand (P.W.  35) and  another  Lambardar  Ram Singh and  others of  Burthal Jat  village separated P.W. 32 from Anil Kumar and Satbir Singh. Meanwhile, an  Assistant  Sub-Inspector of police came there, and about 10 or 15  other persons  who were  with Anil  Kumar and  Satbir Singh ran  away on  seeing the police after leaving behind a jeep and  a motorcycle  which were taken into custody by the police. P.W.  32 informed P.Ws. 7 and 10 about what happened when  they  came  there  some  time  later.  In  his  cross- examination he  has denied  that P.W.  32 was not present at all at  the Burthal  Jat polling  station  but  was  in  his village at  the time  of the poll. He has denied that he was appointed as  Chowkidar by P.W. 32 and has stated that he is Chowkidar of  the village since 1982 and that P.W. 32 became Sarpanch of Burthal Jat village only recently. He has denied the suggestion  that no  incident at  all took  place in the village and  that he  had given  false  evidence  under  the influence of P.W. 32. 491      P.W.34, the  Lambardar of Kakoria village situate close to   Burthal Jat village, has stated in his evidence that he went to  Burthal Jat polling station at about 2.30 or 3 p.m. for casting  his vote  in the  last election  to The Haryana Legislative Assembly  and saw  Anil Kumar and & Satbir Singh slapping and  fisting P.W.  32. He  and P.W.  35 and  others intervened and  separated them.  Some time thereafter a Sub- Inspector of police came and saw Anil Kumar and Satbir Singh exchanging abuses  with P.W.  32 and  he arrested  those two persons. P.Ws.  7 and  10 who  came there  later talked with Anil Kumar  and Satbir  Singh. The police took a motor-cycle and a  jeep which  was with Anil Kumar and Satbir Singh into their custody.  In his  cross-examination he has stated that he had  not meet  Anil Kumar and Satbir Singh previously and that he  does not 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 a.m. the respondent came there at about 8 a.m.  accompanied by  50 or  60  persons  and  called  his polling agents and told them that they should see to it that the Congress  (I) candidate  does not get votes and he added that he was leaving Anil Kumar and Satbir Singh and 15 other persons for  their help.  At about  2.30 p.m. PW 35 saw Anil Kumar and  Satbir Singh  beating PW  32 of  his village  and thereupon he  and PWs.  33 and 34 separated them. Meanwhile, an Assistant  sub-Inspector of  police 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.  PWs. 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

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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 (PW.7) has  stated in  his evidence that on the. day of poll he proceeded  from Kalaka  polling station  to  Burhtal  Jat polling station pursuant to the receipt of‘ a complaint that a Congress(J)  worker  was  attacked  by  the  villagers  of Burthal Jat.  The polling  officer of  Burthal  Jat  polling station told him when he visited that place that nothing had happened inside the polling station but some of the officers in  the  polling  station  told  him  that  there  was  some incidents outside  the polling  station though they were not sure about  the identity  of the persons responsible for the same. Some  villages told PW 7 that Congress (J) workers had come in  a jeep  and tried to create trouble and that one of them ran  away while  the police  had detained  two of those persons. PW  7 interrogated  those two persons and they then told him  that they  had nothing  to do  with the jeep whose number he  has recorded  in the  tape Ex.PW  7/1. PW 7 found some sticks  in the jeep and he asked 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 p.m. 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 (Ex.  PW 7/1) and he later reported to the Secretary to the Government about the complaint which the respondent made to  him   against  the   Superintendent   of   Police.   His stenographer prepared  the transcript  Ex.P-1 in his office, most of  it under  his supervision  and he  was  temporarily 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. Ex.P-2  is the  copy of  the report which  he submitted  about the  incidents which  took place on  19.5.1982 as had come to his notice. In his report Ex.P-2 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

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with PW  7 has stated in his evidence that he saw Anil Kumar and Satbir  Singh surrounded  by the  people of that village and a jeep containing some sticks parked there and that Anil Kumar and  Satbir Singh and the jeep were taken into custody by the  police under  the orders  of PW  7. He  has  further stated that  Ex.P-9 was  handed over to him by one Mam Chand of Burthal  Jat village on that day. As stated earlier PW 35 who is  Mam Chand  son of Umrao Singh of Burthal Jat village has disowned  Ex.P-9. In  his cross-examination  PW  10  has denied that  he had  discriminated  between  the  candidates while disposing  of the  complaints about Kalaka and Burthal Jat polling stations. Ex.P-9 addressed by Mam Chand to PW 10 is to  the effect that the respondent pointed out his gun at the Presiding  Officer and  other  persons  in  Burthal  Jat polling station after he came there at about 1.30 p.m. along with 65  or 70  persons and he ordered for the ballot papers being marked  with the  symbol of scales and put into ballot boxes and  to finish off anybody who interferes and that the whole village was terrorised and they were thereby 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. Ex.P- 9 which  was found  in the  file summoned from the office of the Sub-Divisional  Officer, Rewari  had  been  marked  only through PW 10 and has been disowned by PW 35 who is no doubt Mam Chand son of Umrao Singh. For want of proof Ex.P-9 could not be taken into consideration, but the learned Trial 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 3.30 p.m. on 19.5.1982 he recorded a Daily Diary Report of which Ex.P- 8 is  a copy  and that  Ex.P-8 is  a  correct  copy  of  the original report.  It is  mentioned in Ex.P-8 that Anil Kumar and Satbir  Singh of  Kutubpur and  Dulana respectively were abusing  and   beating  Sarpanch   Shamsher  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 Ex.P-8.  Ex.P-28 is  a copy of the judgment in the case registered  in the  concerned FIR  No.104 of 1982 dated 19.5.1982 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. Ex.P-27 is a certified copy of the calender  dated 19.5.1982 relation to that criminal case registered by the police. Exs.P-27 and P-28 were tendered by the learned  counsel who  appeared for the respondent in the trial court.  That  calender  contains  allegations  to  the effect that  the Assistant  Sub-Inspector of police with the

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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 19.5.1982,  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 19.5.1982.  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 a.m. claims  to have  remained at  the polling  station till about 1.30  or 2  p.m. 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 10.45

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a.m. for  casting his  vote and  cast his  vote at that time claims to  have stayed there along with some villagers until about 4  p.m. Though  he has  stated in  a  portion  of  his examination-in-chief that  no incident took place with in or outside the  polling station 80 long as he remained where he had admitted  in his examination-in-chief itself that he saw PW 32  having a  dispute with  two unknown persons about 120 kadams away  as also  a jeep  parked 80 kadams away from the polling station  and that  he heard  people saying  that the Superintend of Police removed these two 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 7.30  a.m. 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 19.5.1982 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  7.30 p.m.  On 19.5.1982  that the respondent expressed his  anxiety to  get his  relatives Anil Kumar and Satbir Singh who had been arrested on that day by the police released and  that his  evidence that  Anil Kumar and Satbir 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 R.W.  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 P.W. 7 and K.W. 22 in the office of P.W. 10 at about 7 or 7.30 p.m. On 19.5.1982.  The fact  that a portion of the tape-recorded conversation in  Burthal Jat  polling station  got erased by P.W.7’s own  voice due  to inadvertence  is  no  reason  for rejecting  the   remaining  portion  of  the  tape.  It  was demonstrated in  this Court  that the tape-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 P.W.7 that a portion of the tape-recorded conversation  in Burthal  Jat polling  station got erased by his own voice due to inadvertence.

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    The  oral   and  documentary   evidence  regarding  the incident at  Burthal Jat  polling  station  let  in  by  the appellants receives  corroboration to  a certain extent from the evidence  of some  of the respondent’s own witnesses. As stated earlier,  R.W. 12  has admitted  that P.W. 32 who was standing about  80 kadams  away from the polling station was having an  altercation with  some people  and that even when the altercation  was going  on some police personnel arrived there and  they took  into custody two persons and there was also a  jeep at some distance away from the place where P.W. 32 and  others were  having an altercation. Even R.W. 13 has stated that  P.W. 32  was having  a dispute with two unknown persons about  120 kadams  away from the polling station and soon  thereafter   he   heard   people   saying   that   the Superintendent  of   Police  took  away  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 19.5.1982 has  not called those two persons as his witnesses to rebut  the case of the appellants. Therefore, as observed in Chenna  Reddy v.  B.C. 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 P.W.  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  123(2) read with section  79(d) of the Act. In support of his contention Mr. Rao  invited this  Court’s attention  to the decision in Nagendra Mahto  v. The State (supra) where it has been held, as stated  earlier, that the L) criminal revision petitioner

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before the  High Court  who had insisted upon going into the room where  the ballot papers were kept though the Presiding Officer had  warned him  to go  out of  the  room  and  also attempted to  put some  ballot papers  into the  box of  one Nitai Singh  Sardar was  rightly convicted under section 131 (1) (b)  and section  136 (L)  (f) of  the Act. On the other hand,  Mr.    Sibbal  submitted  that  casting  bogus  votes forcibly would  amount to  corn  pt  practice  as  it  would indirectly interfere  with the electoral right of the voters whose ballot  papers have  been so  polled, whether they had intended to  come to  the polling station and exercise their right to vote or had intended otherwise. In this connection, he invited  this Court’s attention the decision  in Ram Dial v. Sant  Lal and  Others (supra)  where, as 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  79(d)  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. S.125  relates   to  promoting  enmity  between  classes  in connection with  election. S.126  relates to  prohibition of public meetings on the day preceding the election day and on the election  day. S.127 relates to disturbances at election meetings. S.127A  relates to restrictions on the printing of pamphlets, posters  etc. S.128  relates  to  maintenance  of secrecy of  voting. S.129 relates to prohibition of Officers etc., at  elections acting  for candidates  or to  influence voting. S.130  relates to  prohibition of  conversing in  or near  polling  stations.  S.131  provides  for  penalty  for disorderly  conduct  in  or  near  polling  stations.  S.132 provides for  penalty for misconduct at the polling station. S.133 provides  for penalty  for illegal hiring or procuring of conveyances  at elections.  S.134 relates  to breaches of official duty in connection with elections. S.134A prohibits Government servants  from acting  as election agent, polling agent or  counting agent. S.135 relates to removal of ballot papers from polling station. S.135 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

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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  P.W. 7  had instructed the polling staff to issue tendered  ballot papers  to any  elector whose  ballot paper had  already been  forcibly polled  who might come for the purpose of exercising his right.      I have  referred to and discussed the evidence somewhat in 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 Ex.P-6, by filing C.M.P.31 (E) of 1983 in the  trial Court.  He had cited the Observer (R.W. 20) as his  witness   to  depose   about  his  case  regarding  the allegations made  by the  appellants in paras 9 to 12 of the election petition  regarding the  corrupt practices.  But he did not  examine R.W. 20 for that purpose and had called him only for  the purpose  of production  of some record without any oath  being administered  to him  though  in  his  tape- recorded conversation  with P.W.  7 in the office of P.W. 10 on 19.5.1982 referred to above, he had admittedly asked P.W. 7 to  get ever  thing noted by P.W. 20 who was present there at that  time. He  had thus  denied to  the  appellants  the opportunity to  cross examine  R.W. 20.  The respondent  had come forward  with a new case of alleged booth-capturing and forcible polling  of bogus votes by 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  19.5.1982 were his relatives though in his tape- recorded conversation referred to above he had informed P.W. 7 that  they were  his close  relatives and he had shown his anxiety to  get them released from police custody forthwith. He had  neither cited  them nor called them as his witnesses though they  would have been material witnesses in regard to the  incident  at  the  Burthal  Jat  polling  station.  The respondent’s evidence as R.W. 22 has been 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

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election of the returned candidate is void under section 100 (1)(b) on  account of corrupt practice as per section 132(2) of the  Act, as  in the  present case, is a civil proceeding though the  standard or  degree of proof required is as in a criminal case.  In any  case, two  views are not possible in the present case where the appellants have proved beyond all reasonable doubt  that  the  respondent  has  committed  the corrupt practices  alleged in  at the Kalaka and Burthal Jat polling stations.  No lenient view can be taken in this case merely because the election petition is directed against the returned candidate  for, only  in the  case  of  a  returned candidate Parliament has provided, in the interest of purity in elections,  for serious  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.  5,000 payable by the respondent-returned candidate.      SABYASACHI MUKHARJI,  J. Having  had the  advantage  of reading the  judgment of  my learned brother Fazal Ali,J., I agree with  the reasoning  and the conclusions arrived at by my learned  brother. I  would, however,  like to  express my views on  following four  points  involved  in  the  appeal: firstly,  this  being  appeal  under  section  116A  of  the Representation of  the People  Act, 1951  which  is  in  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. v. Maqsud Ali, [1965] 2 All E.R. page 464 in respect of criminal trial the question was considered by the  Court of Appeal in England. A tape-recording, it was held, was  admissible in  evidence provided  the accuracy of the recording  car, be proved and the voices recorded can be properly identified  and that  the evidence  is relevant and

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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   2-1/2  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. v. Robson. [1972] 2 All E.R. 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

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         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 N.Sri Rama  Reddy Etc  v. Shri  V.V. 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  R.M. Malkani  v. State  of Maharashtra [1973] 2  S.C.R. 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  v. V.  Ramachandra Rao and Anr., [1972] E.L.R. Vol. 40  page 390.  mere after discussing the evidence, G.K.

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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 v.  Thakur Muneshwar Nath Singh  and Others  [1984] S.C.C.  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 v. 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

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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  v. Chandra Pratap  Tiwari & Ora. AIR 1975 SC page 1178 see also the observations of this Court in Raghuvir Singh v. Raghubir Singh Kushwaha.  AIR 1970  S.C. page  442. In  view  of  the nature of  the evidence  on record,  we find  no  reason  to disagree with  the  appraisement  of  the  evidence  by  the learned trial judge.      Last point indicated above is interesting as was sought to be raised by Mr. Sibbal, because preventing a person from casting his  vote or  causing a bogus vote purpoting to be a vote of  some one  other than  the genuine  voter would be a serious interference with the electoral process, as grave as preventing a  person from  voting.  Right  to  abstain  from voting is  recognised in our system of election. But in view of the  evidence in this case, the point need not be pursued further.      For the  reasons 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. P.B.R. 508