REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2928 OF 2008   

TUKARAM S. DIGHOLE — APPELLANT

VERSUS

MANIKRAO SHIVAJI KOKATE — RESPONDENT

J U D G M E N T

D.K. JAIN, J.:

1. This appeal under Section 116-A of the Representation of the  

People Act,  1951 (for  short  “the Act”)  is  directed against  the  

final judgment and order dated 25th January, 2008, rendered by  

the  High  Court  of  Judicature  at  Bombay in  Election  Petition  

No.13 of 2004, whereby the election petition preferred by the  

appellant,  challenging  the  election  of  the  respondent  to  the  

House of  People (Lok Sabha) from 69,  Sinnar Parliamentary  

Constituency in the State of Maharashtra has been dismissed.

2. Briefly  stated,  the  material  facts  giving  rise  to  the  present  

appeal are as under:

Election to the said parliamentary constituency was held on 13th  

October, 2004 and the results were declared on 16th October, 2004.  

The  appellant  contested  the  elections  as  a  candidate  of  NCP-

Congress — R.P.I. alliance, whereas the respondent contested the  

election as a Shiv Sena — Bharatiya Janta Party alliance candidate.  

Out  of  a  total  of  1,35,063  votes  cast  in  the  election,  while  the  

respondent  secured  67,556  votes,  the  appellant  could  manage  

47,593 votes.  Resultantly, the respondent was declared elected.

3. Not  being  satisfied  with  the  election  result,  the  appellant  

preferred  an  election  petition,  challenging  the  election  on  several  

grounds and for  declaring the said election to be void in terms of  

Sections  100(1)(b),  100(1)(d)(ii)  and  100(1)(d)(iv)  of  the  Act,  with  

consequential relief of declaring the appellant as elected in terms of  

Section 101(b) of the Act.      

4. The election petition was contested by the respondent denying  

all the allegations.  It was pleaded that the election petition was not  

maintainable  inasmuch as it  was  not  in  the  prescribed format;  no  

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details of the communal appeals allegedly made by respondent and  

his agents were mentioned in the petition; certified copies of the VHS  

Cassette and its transcript, containing the speeches delivered by the  

respondent,  had  not  been  furnished  and  even  the  provisions  of  

Section 86 of the Act had not been complied with.        

5. Upon  consideration  of  the  pleadings,  the  High  Court  

(hereinafter referred to as “the Tribunal”) framed the following issues:

“(1) Whether  the petitioner  proves that  the election of  the  respondent  is  liable  to  be  quashed  and  set  aside  for  having  made  communal  appeals  in  his  speeches recorded on the VHS Cassette produced  by the petitioner in Court?   

(2) Whether  the petitioner  proves that  the  election of  the  respondent  is  liable  to  be  quashed  and  set  aside under Sections 100(1)(d)(ii) and 100(1)(d)(iv)  of the Representation of People Act, 1951 for the  reasons  set  out  in  paragraphs  9  to  18  of  the  Election Petition?

(3) Whether the petitioner proves that the respondent  had deliberately issued the letter at Exhibit E page  42 dated 28.9.2004 in  the name of  the petitioner  with a view to misguide the voters?

(4) Whether  the  respondent  proves  that  he  has  not  addressed  communal  and  racial  speeches  as  alleged in VHS Cassette filed by the petitioner?”

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6. In support of the case, one of the documents placed on record  

by the appellant was a VHS Cassette which, according to him, was  

obtained from the Election Commission of India and contained a true  

reproduction of  the speeches delivered by the respondent and his  

supporters during the election campaign.  Out of the 20 documents  

produced, only 3 documents viz. FIR dated 12th October, 2004 (Ex.  

P2),  complaint  dated  29th October,  2004  (Ex.P3)  and  a  special  

supplement  issued  in  the  newspaper  “Gavkari”  on  3rd September,  

2004  (Ex.P4)  were  exhibited.   No  other  documents,  including  the  

VHS Cassette,  were exhibited.   The appellant and the respondent  

examined  themselves  as  witnesses  in  support  of  their  respective  

stands.  No other witness was examined.            

7. Analysing the evidence adduced by the parties on the Issues,  

the Tribunal answered Issues No.1 to 3 in the negative and in view of  

answer to Issue No.1, Issue No.4 was not answered.  On Issue No.1  

the Tribunal observed that though the appellant had placed on record  

the VHS Cassette but had failed to produce any evidence to show  

that  the  said  cassette  was  a  true  reproduction  of  the  original  

speeches.  The Tribunal did not accept the plea of the appellant that  

since the cassette is a “public document”, as defined in Section 74 of  

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the Indian Evidence Act, 1872 (for short “the Evidence Act), its mere  

production was sufficient and no further evidence was required to be  

adduced to prove as to how the said cassette was obtained by the  

appellant.  It has been observed that even in the affidavit filed by the  

appellant, in lieu of examination-in-chief, there is no mention of the  

said cassette and that  it  had been obtained from the office of  the  

Election Commission on payment of requisite charges for the same.  

The  Tribunal  has  also  found  that  the  transcripts  produced  by  the  

appellant  have  not  been proved  to  be those of  the  original  audio  

recordings.  The Tribunal finally held that since the contents of the  

cassette and the transcripts had not been proved, the allegation of  

the appellant that the respondent had indulged in corrupt practices by  

appealing  to  the  Maratha  community  to  vote  on  the  basis  of  

community, could not be accepted.  On Issue No.2, the Tribunal has  

observed that apart from the fact that there are no specific pleadings  

in  the  election  petition  with  regard  to  the  claim of  the respondent  

about  the  work  done  by  him  and  the  alleged  threats  by  him  in  

publication  “Deshdhoot”,  the  appellant  had  failed  to  adduce  any  

evidence to  prove that  the  claims made by the respondent  in  the  

special supplement of the local newspaper (Ex.P4) were false or that  

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the  said  threats  amounted  to  corrupt  practices  under  Section  

123(2)(a)(i) of the Act.  The Tribunal has, accordingly, held that the  

appellant has failed to prove that the respondent had indulged in any  

corrupt practices.  As regards Issue No.3, the Tribunal has held that  

the letter/pamphlet purportedly written by the appellant and allegedly  

circulated by the respondent in order to defame the appellant had not  

been  proved  by the  appellant.   The  election  petition  having  been  

dismissed with costs, the appellant is before us in this appeal.

8. Mr. Krishnan Venugopal, learned senior counsel, appearing on  

behalf of the appellant, confined his challenge to the finding of the  

Tribunal on Issue No.1.  He submitted that besides being a public  

document, the contents of VHS Cassette were not specifically denied  

by the respondent and, therefore, no further evidence was required to  

be produced to prove the authenticity of the cassette.  According to  

the learned counsel, the Tribunal has committed a serious error of  

law in rejecting the evidence adduced by the appellant, in the form of  

the said cassette.  It  was strenuously urged that the finding of the  

Tribunal to the effect that the appellant had failed to prove the factum  

of  communal  speeches being made by the  respondent  and/or  his  

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agents,  is  palpably  erroneous  and,  therefore,  deserves  to  be  set  

aside.   

                    9. Mr. K.V. Vishwanathan, learned  senior counsel, appearing on  

behalf  of  the  respondent,  on  the  other  hand,  supported  the  

decision of the Tribunal and submitted that apart from the fact  

that there was no specific pleading in the election petition with  

regard to the mode of acquisition of the cassette in question,  

even if  it  was assumed that  the  said  cassette  was a  public  

document yet in order to attract the provisions of Section 123 of  

the  Act,  the  appellant  was  required  to  prove  with  cogent  

evidence  that  the  speeches  recorded  therein  were,  in  fact,  

made by the  respondent  and  his  agents.   In  support  of  the  

proposition that unless a document is exhibited at the trial and  

is put in evidence it cannot be looked into, reliance was placed  

on  a  decision  of  this  Court  in  Amar  Nath  Agarwalla  Vs.  

Dhillon Transport  Agency1.   Learned counsel  asserted that  

the finding recorded by the Tribunal on the issue, being a pure  

finding of fact, no interference is called for.  

1 (2007) 4 SCC 306

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10. The short  question  for  consideration  is  whether  the  Tribunal  

was justified in discarding the cassette placed on record by the  

appellant to prove the allegation of appeal by the respondent to  

the voters to vote on communal ground, amounting to a corrupt  

practice within the meaning of Section 123(3) of the Act?

11. Before  we  proceed to  examine the  controversy  at  hand,  we  

deem it necessary to reiterate that a charge of corrupt practice,  

envisaged by the Act,  is equated with a criminal  charge and  

therefore,  standard  of  proof  therefor  would  not  be  

preponderance  of  probabilities  as  in  a  civil  action  but  proof  

beyond reasonable doubt as in a criminal trial.  If  a stringent  

test of proof is not applied, a serious prejudice is likely to be  

caused to the successful candidate whose election would not  

only be set aside, he may also incur disqualification to contest  

an election for a certain period, adversely affecting his political  

career.  Thus, a heavy onus lies on the election petitioner to  

prove  the  charge  of  corrupt  practice  in  the  same way  as  a  

criminal charge is proved.

12. Explaining  the  nature  and  extent  of  burden  of  proof  in  an  

election trial  involving a charge of  corrupt  practice,  in  Razik  

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Ram  Vs.  Jaswant Singh Chouhan2, speaking for the Bench,  

Sarkaria, J. observed as under:

…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.   Just  as  in  a  criminal case, so in an election petition, the respondent  against whom the charge of corrupt practice is levelled, is  presumed to be innocent unless proved guilty.  A grave  and heavy onus,  therefore,  rests  on the accuser  to  establish each and every ingredient of the charge by  clear,  unequivocal  and  unimpeachable  evidence  beyond reasonable doubt.”  

              (emphasis supplied)

13. In  Jeet  Mohinder  Singh  Vs.  Harminder  Singh  Jassi3,  a  

Bench of three judges of this Court, summarising the principles  

laid down by this Court from time to time in the field of election  

jurisprudence;  adumbrated  the  following  legal  principles,  

relevant  for  our  purpose:  to  be kept  in  view by the  Election  

Tribunals and the Appellate Courts while dealing with election  

petitions and appeals arising therefrom:  

2 (1975) 4 SCC 769 3 (1999) 9 SCC 386

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“(i) The  success  of  a  candidate  who  has  won  at  an  election  should  not  be  lightly  interfered  with.  Any  petition  seeking  such  interference  must  strictly  conform to the requirements of the law. Though the  purity of the election process has to be safeguarded  and the Court shall be vigilant to see that people do  not  get  elected  by  flagrant  breaches  of  law  or  by  committing corrupt practices, the setting aside of an  election involves serious consequences not only for  the returned candidate and the constituency, but also  for  the  public  at  large  inasmuch  as  re-election  involves an enormous load on the public funds and  administration.  

(ii) Charge  of  corrupt  practice  is  quasi-criminal  in  character.  If  substantiated,  it  leads  not  only  to  the  setting  aside  of  the  election  of  the  successful  candidate, but also of his being disqualified to contest  an  election  for  a  certain  period.  It  may  entail  extinction of a person's public life and political career.  A trial of an election petition though within the realm  of civil law is akin to trial on a criminal charge. Two  consequences follow. Firstly, the allegations relating  to  commission  of  a  corrupt  practice  should  be  sufficiently clear and stated precisely so as to afford  the person charged a full opportunity of meeting the  same.  Secondly,  the  charges  when  put  to  issue  should  be  proved  by  clear,  cogent  and  credible  evidence. To prove charge of corrupt practice a mere  preponderance of probabilities would not be enough.  There would be a presumption of innocence available  to the person charged. The charge shall have to be  proved  to  the  hilt,  the  standard  of  proof  being  the  same as in a criminal trial.

(iii) The  Appellate  Court  attaches  great  value  to  the  opinion formed by the trial Judge more so when the  trial Judge recording findings of fact is the same who  had  recorded  the  evidence.  The  Appellate  Court  shall remember that the jurisdiction to try an election  

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petition  has  been  vested  in  a  Judge  of  the  High  Court. Secondly, the trial Judge may have had the  benefit of watching the demeanour of witnesses and  forming first-hand opinion of them in the process of  evaluation of evidence. The Supreme Court may re- assess  the  evidence  and  come  to  its  own  conclusions  on  feeling  satisfied  that  in  recording  findings  of  fact  the  High  Court  has  disregarded  settled  principles  governing  the  approach  to  evidence or committed grave or palpable errors.”

14. In  the  backdrop  of  the afore-stated  principles,  we  may  now  

advert to the facts at hand to examine if the finding recorded by  

the  Tribunal  in  the  judgment  in  appeal,  holding  that  the  

appellant has failed to prove that the respondent had committed  

corrupt practice, falling within the ambit  of sub-Section (3) of  

Section 123 of the Act, is justified or not.

15. Section 123 of the Act defines corrupt practices.  In the instant  

case,  Issue  No.1  is  based  on  the  alleged  violation  of  sub-

Section (3) of Section 123, which reads as follows:

“(3)  The appeal  by a candidate or  his agent  or  by any  other  person  with  the  consent  of  a  candidate  or  his  election agent to vote or refrain from voting for any person  on the ground of his religion, race, caste, community or  language or the use of, or appeal to religious symbols or  the use of,  or appeal  to,  national symbols,  such as the  national flag or the national emblem, for the furtherance of  the  prospects  of  the  election  of  that  candidate  or  for  prejudicially affecting the election of any candidate:

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[Provided  that  no  symbol  allotted  under  this  Act  to  a  candidate shall be deemed to be a religious symbol or a  national symbol for the purposes of this clause.]”

16. The vital ingredients of the sub-Section, relevant for this appeal,  

are - (i) appeal by a candidate or his agent or by any person  

with the consent of a candidate or his election agent; (ii) to vote  

or refrain from voting for any person and (iii) on the ground of  

religion, race, caste, community or language.  As stated above,  

the case of the appellant is that the respondent had appealed to  

the electorate to  vote on communal  lines.   In support  of  the  

allegation, a cassette, allegedly containing speeches made by  

him  and  his  agents,  along  with  its  transcript  was  produced.  

According to the appellant,  the cassette contained speeches,  

which  were  recorded  at  the  instance  of  the  Election  

Commission and that the cassette having been obtained from  

the  Election  Commission,  it  was  a  public  document  and  

therefore, the burden of proof which lay on him to prove the  

allegation stood discharged.   

17. Chapter  V  of  the  Evidence  Act  deals  with  documentary  

evidence.  Section 61 thereof lays down that the contents of  

documents may be proved either by primary or by secondary  

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evidence.   As  per  Section  62  of  the  Evidence  Act,  primary  

evidence  means  the  document  itself  produced  for  the  

inspection of the Court.   Section 63 categorises five kinds of  

secondary  evidence.   Section  64  lays  down that  documents  

must  be  proved  by  primary  evidence  except  in  the  cases  

mentioned in the following Sections.  To put the matter briefly,  

the general rule is that secondary evidence is not admissible  

until  the  non-production  of  primary  evidence  is  satisfactorily  

proved.  However, clause (e) of Section 65, which enumerates  

the cases in which secondary evidence relating to documents  

may be given, carves out an exception to the extent that when  

the  original  document  is  a  “public  document”  secondary  

evidence is  admissible even though the original  document  is  

still in existence and available.  Section 74 of the Evidence Act  

defines what are known as “public documents”.   As per Section  

75 of the Evidence Act, all documents other than those stated  

in Section 74 are private documents.  There is no dispute that  

certified  copy  of  a  document  issued  by  the  Election  

Commission would be a public document.    

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18. However,  in  the  present  case, the  dispute  is  not  whether  a  

cassette is a public document but the issues are whether: (i) the  

finding by the Tribunal that in the absence of any evidence to  

show that  the  VHS Cassette  was  obtained  by  the  appellant  

from the Election Commission, the cassette placed on record  

by the appellant could not be treated as a public document is  

perverse  and  (ii)  a  mere  production  of  an  audio  cassette,  

assuming  that  the  same  is  a  certified  copy  issued  by  the  

Election Commission, is per se conclusive of the fact that what  

is contained in the cassette is the true and correct recording of  

the speech allegedly delivered by the respondent or his agent?  

19. Insofar as the first question, formulated above, is concerned, it  

would be profitable to extract the observations of the Tribunal  

on the issue.  The Tribunal observed thus:  

“14. It is no doubt true that the Petitioner has produced  the VHS Cassette on record.  This cassette was produced  on 30.11.2004.  However, the Petitioner has produced no  evidence on record to indicate that this VHS cassette was  a  true  reproduction  of  the  original  speeches.   The  submissions of the learned counsel for the Petitioner, that  the VHS Cassette is a public document as defined u/s. 76  of the Indian Evidence Act, cannot be accepted.  There is  no  evidence  to  indicate  that  the  VHS  cassette  was  obtained from the  election  commission.   The Petitioner  who  examined  himself  has  not  adverted  to  this  video  

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recording  in  his  examination  in  chief.   There  is  no  averment  in  the  affidavit  filed  in  lieu  of  examination  in  chief to the effect that he had obtained the cassette from  the office of the election commission and that he had paid  the requisite charges for  the same.  At  the time of  the  arguments, the learned counsel for the Petitioner pointed  out that this Cassette was in fact issued to the Petitioner  by  the  election  commission’s  office.  But  this  is  not  sufficient.  A public document need not be proved under  the Indian Evidence Act.  However, it must be brought on  record as evidence.  It must be admitted in evidence as a  certified copy of the original before any presumption can  be drawn regarding its genuineness.  I am fortified in my  view by the decision of the Supreme Court in the case of  Amarnath Agarwal (supra) where the Supreme Court has  held  that  the  mere  production  of  the  documents  along  with the written submissions without exhibiting them at the  trial  would be sufficient  for the Court  to look into those  documents  as  they  were  not  in  evidence  and  the  defendant  had  no  opportunity  to  reply  to  those  documents.   The Petitioner  has not  proved  the  receipt  issued by the election commission’s office and has thus  failed  to  prove  that  the  VHS  Cassette  was  a  public  document.  That being the position, it is not possible to  rely on the contents of the VHS cassette.”

Thus,  observing that  the appellant  had failed to produce even the  

receipt  stated  to  have  been  issued  by  the  Election  Commission’s  

office, the Tribunal held that mere production of the cassette with the  

Election  Petition  would  not  lead to  the  inference  that  it  had  been  

produced  in  evidence  and  being  a  public  document,  it  was  not  

required to be proved.  Having perused the material on record, we  

are in complete agreement with the Tribunal that in the absence of  

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any  cogent  evidence  regarding  the  source  and  the  manner  of  its  

acquisition,  the  authenticity  of  the  cassette  was  not  proved  and it  

could not be read in evidence despite the fact that the cassette is a  

public  document.   No relevant  material  was brought  to  our  notice  

which  would  impel  us  to  hold  that  the  finding  by  the  Tribunal  is  

perverse, warranting our interference.   

20. The second issue, in our opinion, is of greater importance than  

the first one.  It is well settled that tape-records of speeches are  

“documents” as defined in Section 3 of the Evidence Act and  

stand  on  no  different  footing  than  photographs.  (See:  

Ziyauddin  Burhanuddin  Bukhari Vs. Brijmohan  Ramdass  

Mehra  &  Ors.4).   There  is  also  no  doubt  that  the  new  

techniques and devices are the order of  the day.  Audio and  

video  tape  technology  has  emerged  as  a  powerful  medium  

through which a first hand information about an event can be  

gathered and in  a given situation may prove to  be a crucial  

piece of evidence.  At the same time, with fast development in  

the  electronic  techniques,  the  tapes/cassettes  are  more  

susceptible  to  tampering  and  alterations  by  transposition,  

excision,  etc.  which may be difficult  to detect  and,  therefore,  4 (1976) 2 SCC 17

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such  evidence  has  to  be  received  with  caution.   Though  it  

would  neither  be  feasible  nor  advisable  to  lay  down  any  

exhaustive  set  of  rules  by  which  the  admissibility  of  such  

evidence may be judged but it needs to be emphasised that to  

rule out the possibility of any kind of tampering with the tape,  

the standard of proof about its authenticity and accuracy has to  

be more stringent as compared to other documentary evidence.  

21. In  Yusufalli  Esmail  Nagree Vs. State of Maharashtra5,  this  

Court  observed  that  since  the  tape-records  are  prone  to  

tampering, the time, place and accuracy of the recording must  

be proved by a competent witness. It  is necessary that such  

evidence must be received with caution.  The Court must be  

satisfied,  beyond  reasonable  doubt  that  the  record  has  not  

been tampered with.   

22. In  R. Vs. Maqsud Ali6, it  was said that it would be 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 are properly  

identified.   Such  evidence  should  always  be  regarded  with  

5 (1967) 3 SCR 720   6 (1965) 2 ALL E.R. 464

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some caution and assessed in the light of all the circumstances  

of each case.  

23. In Ziyauddin Burhanuddin Bukhari (supra), relying on R. Vs.  

Maqsud Ali (supra), a Bench of three judges of this Court held  

that the tape-records of speeches 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 know it.

(b) Accuracy of what was actually recorded had to be  proved  by  the  maker  of  the  record  and  satisfactory  evidence, direct or circumstantial, had to be there so 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.”

24. Similar conditions for admissibility of a tape-recorded statement  

were reiterated in Ram Singh & Ors. Vs. Col. Ram Singh7 and  

recently in R.K. Anand Vs. Registrar, Delhi High Court8.  

25. Tested  on  the  touchstone  of  the  tests  and  safeguards,  

enumerated above,  we are  of  the opinion that  in  the instant  

case the appellant has miserably failed to prove the authenticity  

7 1985 (Supp) SCC 611 8 (2009) 8 SCC 106

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of  the  cassette  as  well  as  the  accuracy  of  the  speeches  

purportedly made by the respondent. Admittedly, the appellant  

did not lead any evidence to prove that the cassette produced  

on record was a true reproduction of the original speeches by  

the respondent or his agent.  On a careful consideration of the  

evidence and circumstances of the case, we are convinced that  

the appellant has failed to prove his case that the respondent  

was guilty of indulging in corrupt practices.     

26. For the afore-going reasons, we see no merit  in this appeal.  

We, therefore, affirm the decision of the Tribunal and dismiss  

the appeal with costs, quantified at Rs.20,000/-.

.…………………………………J.                     (D.K. JAIN)

                              ..….…………………………….J.                     (P. SATHASIVAM)

NEW DELHI; FEBRUARY 5, 2010

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