RAM SINGH & ORS •. v. COL. RAM SINGH

AUGUST 7, 1985

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

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

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

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

The High Court held that the evidence of the witnesses and G the petitioners on these points was not corroborated, no effort was made by the petitioners to connect the respondent with the ownership of vehicles purported to have been used by him, that the witnesses were drawing more upon their imagination to make out stories about the detention of the persons and forcible polling at that polling station by the respondent and that the P

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

Dismissing the appeal

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

Clear and specific allegations with facts and figures regarding the corrupt practices indulged in by the respondent have not been alleged in the first part of the election petition. c The petitioners should have given definitive and specific allegations regarding the nature of fraud or the corrupt practices conmitted by the respondent as briefly as possible in the main part of the petition. [407 E-F]

· The appellants have not established that the respondent was present at the time of the incidents at the two booths. Once this is not proved, the appellants have failed. It is settled law that corrupt practices must be cOC!'litted by the candidate or his polling agent or by others with the implicit or explicit consent of the candidate or his polling agent. Where the supporters of the candidate indulged in corrupt practices on their own, without the authority from the candidate the election cannot be voided, 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 Recor,per or other mechanical process the preponderance of authorities is in favour of the admissibility of the statements subject to certain safeguards viz., (l) the voice of the speaker must be identified by the maker of the record or by others who recognise his voice. · Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (414 EJ

(2) The voice of the speaker should be audible and not distorted by other sounds or disturbances. [414 E]

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

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

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

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

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

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

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

Sabyasachi l!ukbarji,J. concurring: While accepting the tape recorded sta~ements the court should proceed cautiously. The H

p. 402 Copy page pinpoint

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

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

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

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

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

p. 403 Copy page pinpoint

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 circWDStances of this case great relevance has to be placed on the tape and its contents not only for corroborating the evidence of the District Comnissioner and the Presiding Officer to the extent they go but alco as ~ gestae_ evidenee of the first part of the incident. The Trial Judge waa not justified in rejecting the tape record and transcription. The appellants have proved satisfactorily and beyond reasonable doubt the firs~ part of the incident in one of the Polling Stations, that the respondent went armed with a rifle with 25 or 30 companions and entered . the Polling_ Station with 4 or 5 armed companions and threatened the Presiding Officer and others who were present there with the use of force and got some ballot papers marked in favour of the respondent polled forcibly by his companions in the ballot box and that they left the Polling Station on seeing the villagers and the police coming towards the Polling Station. The discrepency in evidenc_e regarding the time of the incident is not material. [478 A-C, 483 E-484 A] D Secondly, the Deputy Comnissioner recorded the conversstion which he had with the presiding Officer but some portion thereof waa erased by his own voice by inadvertance. After recording, his stenographer prepared the transcript in his office most of it under his supervision and though he was temporarily absent to attend to some other work he compared it with the original tape and found it to be correct. The tape, the tape recorder and the E transcript remained with him throughout and were not deposited by him in the record room and there was no possibility of tampering. [496 F-497 A]

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

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

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

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

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

c The following Judgments were delivered:

FAZAL ALI, J. The election process in our country has become an extremely complex and complicated system and indeed a very difficult and delicate affair. Sometimes, the election- petitioner, who has lost the election from a particular constituency, makes out on the surface such a probable feature 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 so 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 advoca'cy of the counsel tor 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 H

RAM SINGH v. COL. RAM SINGH (FAZAL ALI, J. J 405

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

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

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

a. Oral evidence of the witnesses of the parties

b. the documentary evidence

c. the evidence consisting of the tape recorded E statements of the conversation betWeen the Deputy Commissioner and the respondent, Col. Ram Singh, corroborated by the respondent himself who was examined as a court witness by us in this Court and both sides were given full opportunity to cross-examine him. F

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

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

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

a. Time and manner of voting, H

40b SUPl\EME COURT REPORTS [1985] SUPP.2 s.c.R.

A b. allegation of booth capturing,

c. role played by the electoral authorities lt'ho m.q_y have acted honestly yet the possibility of their falling an easy prey to the machinations of one side or the other cannot be safely eliminated which may lead to an error of Judgment on their part. This should be fully guarded against as also the possibility of their being attracted by any false temptation,

d. Where the proof of a corrupt practice is the very cornerstone and the bedrock of the case set against the successful candidate, the court shoula be doubly sure that it is not lured to fall in the labyrfoth of chaos and confusion by easily holding that the corrupt practice alleged has been proved.

With this short prelude, we would now proceed to give an exhaustive glimpse of the contentions raised before us by the parties. l>efore, however, we do that we must record our appreciation and gratefulness to the counsel for both the parties who in a big case like this had been fair enough to confine their argwnents only to two polling stations, viz., Kalaka and Burthal Jat, .which has rendered our task much easier besides saving a lot of time, labour and expense. We also feel indebted to the learned counsel for the parties for having argued the Case with dexterity and brevity which, as it is said, is the 'soul of wit'.

The present appeal arises out of an election held on May 19,1982 to the Haryana Vidhan Sabha from Rewari constituency No.86. ln view of the concession made by the counsel for the parties, we are concerned in this appeal only with two polling booths, viz., Kalak.a and Burthal Jat. It appears that there wer~ as many as five candidates and Col. Ram Singh [respondentj seems to have been pitted against the aforesaid candidates.

The bedrock of the allegations made by the appellants against the_ respondent was that he has been painted to be a most undependable and unreliable person from the moral point of view as having changed sides with one party or the other to suit his needs and divided his loyalties by playing a dirty game of politics in that he changed sides without any fixed ideology and the only principle which, according to the appella.~ts, the respondent had·, was lust for power. It may be pertinent to note

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

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

And now a pointed peep into the salient features of the. facts of the case •.To begin with, the argwnents of the appellants are confined only to the Kalaka and Burthal Jat polling booths • G .Before we proceed further we might at this stage bri"ef ly indica~e, shorn of details·, the nature, character and the extent of the allegations regarding the corrupt practices and booth capturing alleged to have been indulged in by the respondent on the basis of which the appellants seek to set aside the election of the respondent. H

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

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

(2) The respondent alongwith his companions enter the booth and terrorised the polling officer as also the polling agents (Basti Ram & Ishwar) of the Congress I candidate who were assaulted by the respondent by the bu~t end of the barrel of his gun.

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

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

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

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

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

G (1) forcible polling of votes and

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

It manifestly follows that once it is proved that the H respondent was not present at the time of the incidents at Kalaka

RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J. j ';09

A and Burthal, the case of the appellants falls like a pack of cards because it is well settled by several authorities of this Court that the corrupt practice must be cornmltted by the candidate or his polling agent or by others with the implicit or explicit c.onsent of the candidate or his polling agent. Where, however, the supporters or a candidate indulge in a corrupt B practice on~ their own without having been authorised by the candidate or his polling agent, the election of the returned candidate cannot be voided. We might mention here that the last factor indicated by us is conspicuously absent in this case taking ex facie the entire facts narrated by the appellants in their pleadings or in the evidence. c Before, however, analysing and marshalling the evidenc-e we would like to refer to the authc.rities of this Court and other courts regarding the necessary precautions to be taken in approaching evidence in election cases and the principles laid down by us. We would also deal with the extent of the admissibility of t'ne evidence of the tape recorded statements alleged to have been made by some of the w.itnesses in the taperecofder recorded by ?.W. 7, the Deputy Commissioner.

As regards the principles enunciat~d by this Court regarding the nature and the standard of proof of corrupt practice alleged by .an election petitioner against the successful candidate, though it is not necessary for us to burden our judgment with multiplicity of authorities yet the ratio of some of the important decisions which are directly in point .!Ddy be briefly stated.

To begin with, as far back as 1959 in Ram Dial v. Sant Lal F & Ors., [1959J 2 supp. s.c.R. 748, the Court observed thus:

"What is material under the Indian law, is not the actual effect produced, but the doing of such acts as a.re calculated to interfere with the free exercise of any electoral rlght. Decisions of the English Courts, G based on the words of the English Statute, which are not strictly in ~ ~t'=ria with "the words of the Indian statute, cannot, therefore, be used as precedents in this country."

In Samant N. Balakrishna, etc. v. George Fernandez & Ors. H etc •• , [1969] 3 s.c.R. 603, this Court while dwelling on the principles to be followed in election cases pithily point out thus:

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

A "The principle of law is settled that consent may be inferred from circumstantial evidence but the circtuD- stances must point unerringly to the conclusion and must not admit of any other explanation. Although the trial of an election petition is made in accordance with the Code of Civil Proce<iure, it has been laid B down that a corrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclede every hypothesis except that of guilt on the part of the returned candidate ·Or his election agent."

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

"Before considering as to whether the charges of corrupt practice were established, it is important to remember the standard of proof required in such cases. It is well settled that a charge of corrupt practice is substantially akin _to a criminal charge. The D comi:nission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quaSi-crim.inal action, the standard of proof is the same. as in a criminal trial.

Secondly, even if the nature of the trial of an elec- tion petition is not the same in all respects as that of a criminal trial, the burden of proving each and every ingredient of the charge in an election petition remains on the petitioner. If a fact constituting or relevant to such an ingredient is pre-eminently within the knowledge of the respondent, it may affect the quantum qf its p·roof but does Ilot relieve the peti- tioner of his primary burden." G In Balwan Singh v. Prakash Chand & Ors. [1976] 3 s.c.R. 335, Shinghal,J. made the following observations:

"Another argument of Mr. Bindra was that the corrupt practice in question should not have been found to H

RAM SINGH'v. COL. RAM SINGH [FAZAJ, ALI, J.j 411

have been committed as the election petitioners did not examine themselves during the course of .the trial in the High Court. There was however no such obliga- tion on them, and the evidence which the e.lection petitioner_s were able to produce at the trial could not have been rejected for any such fanciful reason when there _was nothing to show that the election peti - tioners were able to give useful evidence to their personal knowledge but stayed away purposely."

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

"The sum and substance of these decisions is thB.t a charge of corrupt practice has to be proved by convin- cing evidence and not merely by preponderance of probabilitie~. As the charge of a corrupt practice is in the nature Of ·a criminal charge, it is for the party who sets up the plea of 'undue influence' to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case. This is more so because once it is proved to the satisfaction of· a court that a canrlidate has been guilty of 1 ur,due in£ luence 1 then he is likely to be disqualified for a period of six years or such other period dS the authority concerned under Section 8-A of the Act may· think fit. c Hy and ~arge, the Court in such cases while appreciat- ing or analysing the evidence must be guided -by the following considerations:

(1) the nature, character, respectability and credi- bility of the evidence·, H

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

A (2) the surrounding circumstances and the improbabili- ties appearing in the case,

(3) the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who had the initial advantage of observing the behaviour, B character and demeanour of the witnesses appearing before it, and

(4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged."

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

As heavy reliance was placed by the appellants on Ex.P-1 (the tape-recorded statements of RWs 1 to 3) as also the state- ments recorded in the same tape-recorder by rW 7 which included the statement of the respondent, in order to allay all doubts and 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 recor- ded on tape-recorder or other mechanical process.

It seems to us that the matter have is not free from difficulty but the preponderance of authorities - Indian and foreign - are in favour of admissibility of the statement provi- F ded certain conditions and safeguard are proved to the satisfaction of the court. We now proceed to discuss the various ramifications and the repercussions of this part of the case.

This Court had the occasion to go into this question in a few cases and ,it will be useful to cite some of the decisions. In G Yusufalli Eemail Nagree v. State of Maharashtra [1967] 3 s.c.R. 720, this Court, speaking through Bachawat, J. observed thus:

"If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording DIJSt be H prowd by a competent witness and the voices 11111St be

Rk'l SINGH v. COL. RAM SlNGH [FAZAL ALI, J.] 413

A properly Jdentified. One of the features of magnetic tape recording is the a bill ty to erase and re-use t.he recording mediw. Because of this facility of erasure and re-use, the evidence must be received with caution~ The court must be satisfied beyond reasonable doubt that the record has not been tampered with. B

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

In the case of N•. Sri Rama lleddy,£tc. v. V.V.Giri [1971] 1 s.c.R. 399, the following observations were made: D "Having due regard to the decisions referred to abo.ve, it is clear that a prev.ious statement, made by a person and recorded on tape, can be used not only to corroborate the evidence giVen by the witness in Court but also to contradict the. evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality." E

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

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

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

A "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfyir.g the following conditions:

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

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

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

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

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

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

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

4) The statement must be relevant according to the l! rules of Evidence Act.

RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.] 415

5) The recorded cassette must be carefully sealed and kept in safe or official custody.

6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or distur- B bances.

The view taken by this court on the question of admissi- bility of tape recorded evidence finds full support from both English and American authorities. In R. v. Haqeud Ali, [1965] All. E.R. 464., Marshall, J., observed thus:- c

''We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence' advantages to be gained by new techniques and new devices, provi- ded the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light 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: · G "The determination of the question is rendered more difficult because tape recordings may be altered by the transposition., excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts. H

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

A During the course of the evidence and argllment on the issue of admissibility the recordings were ;>layed back many times. In the end I came to the view that in continuity, clarity and coherence their quality was, at the least, adequate to enable the jury to form a fair and reliable assessment of the conversation which B were recorded and that with an appropriate warning the jury would not be led into and interpretation unjustifiably adverse to the accused. Accordingly, so far as ·the matter was one of discretion, I was satisfied that no injustice could arise from admitting the tapes in evidence and that they ought not to be excluded on this basis." c rn· Amercian Jurisprudence 2nd (Vol.29) the learned author on a conspectus of the authorities referred to in the footnote in regard to the admissibility of tape recorded statements·at page 494 observes thus:

"The cases are in general agreement as. to what D cons.titutes a proper foundation for the iidmission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows:

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

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

F (3) establishment of the authenticity and correctness of the recording;

( 4) a showing that changes, additions, or deletions .have not been made;

(5) a showing of the manner of the preservation of the G recording;

(6) identification of the speakers; and

(7) a showing that the testimony elicited was voluntarily made without any kind of inducement. H --

RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.] 417

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

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

This . now brings us to a stmnnary of the nature of the evidence produced by the parties. As already stated counsel for the parties confined their arguments only to the validity of the D election relating to Kalaka and Butthal Jat polll.ng booths.

By virtue of· a notification dated 17 .4.82 the Governor of Haryana .called upon the voters to elect Members to the Vidhan Sabtia. The last date for filing the .nomination papers was 24.4.82, the date for scrutiny was 26.4.82 and 28.4.82 was the last date for withdrawal of candidature. The polling was held on 19.5.82 and the counting of votes took place on 20.5.82. It is the last date with which we are mainly concerned. To begin with, it appears that· 24 persons had filed their nomination papers out of which three were rejected by the Returning Officer and 16 persons withdrew ·their candidature, lea·vin.g five persons in the field. Smt. Sumitra Devi ~as a nominee of the Congress (I) party and the respondent filed his nomination· papers initially as an Independent candidate but later on joined Congress (J) party. The re"sp9ndent was first in the army but he resigned soon after the Indo Pakistan war in 1971 and started doing· business as a diesel dealer in partnership with others. On being elected to the Vidhan Sabha he become its Speaker as he enjoyed the· .confidence of the then Chief Minister, Ch. Devi Lal. As it happened, in the 1980 Parliamentary elections the Congress (I) party swept the polls and Shri llhajan Lal;, having left the Janata Party,joined the Congress (I) party along With many of his suppor~ers, including the respondent. Eut, we are concerned only with the 1982 Assembly elections to the Haryana Vidhan Sa"bha in which t_he main candidates were Smt. Sumitra Devi and the respondent.

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

A KALKA POLLING BOOTH

Ille would first take up the allegations levelled by the appellants against the respondent regarding the corrupt practices relating to the Kalaka pollinS booth. According to the evidence of R.w.1, the polling started at 7,30 a.m. and went off peace- B fully without any untoward incident till 10.30 a.m. Near About this time, according to the allegations of the appellants, the respondent arrived with a posse of 60-70 persons, including Des Raj, Ram Kishan and others, to create distur~ce in the polling and to prevent the votes frqm being polled in favour of other parties. It is also alleged 'that a mob of 40-50 persons was variously armed with guns, lathis and swords, and the respondent c himself was armed with a gun. As a result of the activities of the respondent, some of the voters like Shiv Charan, Gurdial and others were forced to run away without exercising their right to vote. It was further alleged that not to speak of the voters even the polling staff was uot allowed to do its duty which resulted in the voting coming to a stand still. At this, one Mangsl Singh raised serious protest and on the orders of the respondent he was D assaulted. lshwar (Lambardar) was also hit by the but tend of the gun and despite the objections of Basti Ram he was also assaul- ted. The policemen were heavily outmDDbered and had to stand as silent spectator to the whole show. Further details of the acts of Olllllission'and cOlllilission cOlllilitted by the respondent have been given in the judgment of the High Codrt as also on pages 10-12 of 1! Vol. Ill of the Paperbooks. It is also alleged that the respon- dent with the aid of his companions snatched as maoy as 50 ballot papers from the polling staff and after marking them in his favour put them into the ballot box. Ultimately, on the arrival of the high officers the Presiding Officer lodged a detailed report giving his owo version of the incident on the basis of F which FIR was registered on 19.5.82 itself. P.w. 7, Mr. N. Bala- bhaskar, the Deputy Conmissioner of Mohindergarh District, who was the Returning Officer of the entire constituency also reached the spot and made enquiries in the matter. As a result of the trouble created at the instance of the respondent, the polling had to be postponed as it was disrupted for more than an hour. G These in short, are the allegations of the appellants against the re~pondent in respect of Kalaka polling booth. We shall now refer 'to the evidence led by both the parties on these particular points to show how far the allegations have been proved. To begin with, P.Ws. 7, 8, 12 to 18 deposed in favour of the appellants in respect of this polling booth. In order to

RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J. J 419

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

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

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

We shall now show that the statement of R.W. l seems to find intrinsic support from the star witness of the appellants, viz., p.w. 7, the Deputy Commissioner. P.w. 7 is a high officer and, therefore, a respectable witness though, with due respect, we might say that his performance in this case has not been very satisfactory and his conduct leaves 11n1ch to be desired. Without going into further details we might mention that his a~tion in recording the statement of the witnesses on a tape recorder without taking the necessary precautions and safeguards cannot be fully justified· We are not able to understand as to why should he have taken the risk of recording the statements on a tape recorder knowing full well that the evidentiary value of such a tape recorded statement depends on various factors. Since P.W. 7 wss accompanied by his stenographer, there could have been no difficulty in recording the statement of the persons concerned by dictating their. statements to him and after being typed, signed the same and taken the signatures of the deponent a certificate "'Read over and accepted correct." If this was done nobody could doubt the authenticity of such statements. P.w. 7 admits his ~tatement that he was not authorised or asked by any higher officer than h1m to record the statement at the spot in a tape recorder which obviously he did at his own risk. Furthermore, G even if he had ·recorded the statements on a tape-recorder he ought not to have kept the cassette in his own custody but should have deposited it in the Record Room according to rules. By keep- ing the recorded cassette in his own custody, the possibility of tampering with or erasure of the recorded speech cannot be ruled out. Another serious defect in recording the statement on a tape

420 SUPREME COURT REPORTS (1~85] SUPP.2 s.c.R.

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

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

F ''Some gaps in Ex. P. 1 have been left out, where the voice was not clear and audible.

Many people were standing at the polling booth whose G voices have been recorded in the tape.

I cannot now identify the person whose voices !. had reCoided in the tape. Talso cannot distinguish the name of PerSOrl whose -voice I had· recorded after heariug- ~he tape-:::. ;:-:::-: • :-:MyStenographer - had H

RAM SINGH v. COL.· RAM SINGH [FAZAL ALI, J. j 421

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

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

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

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

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

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

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

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

voices either of the respondent or of the witnesses for the respondent (R.Ws. l and 3) at the time of giving his evidence. This, therefore, throws a considerable doubt on the truth of the statement made by these witnesses in the cassette recorder. The law which has been analysed and examined by us is very clear that B identification of the voices is very essential. In this view of the matter, the tape recorded statements lose their authenticity apart from other infirmities which we shall give later while appreciating the evidence of the respondent in this court.

A.~other circumstance that goes a long way off to demolish the edifice and the structure of the appellants case regarding the Kalaka polling booth is the statement of P.W. 7 himself. c Accr.rcting to the consistent evidence of R.Ws. 1-6, no inc.ident had happened nor was any trouble created by the respondent but instead the musclewen of the appellants led by Ajit Singh tried to create all sorts of trouble, information of which was sent to the Deputy Cormnissioner. Here, we might notice the admission of P.W. 7 where he st-ltes as fol.lows:-

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

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

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

RAM SINGH v. COL. RAM SINGH [t~AZ...\L ALI, J.] 423

Thus, this being the position and the real state of affairs A at the spot, in a case like the present one involving high stakes and serious handicaps, we should have expected the conduct of the senior officers to have been completely above boarq.

Another reason which throws a considerable doubt . on the testimony of the wltnesses of the appellants is that P.W. 7 B himself deposed that he did not receive any written complaint from the polling officer or the Presiding Officer or from any other person at the time when he visited the Kalaka polling booth. The appellants tried to bring on file certain complaints made to P. W, 7 by Suraj Bhan and others but as the original complaint had not been filed the complaint produced by the 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 E Conmissioner that the wireless message received by him was not in respect of Col. Ram Singh and his men but the message which the n.c. actually received was that the disturbance was created by one Ajit Singh at the instance of the Congress (I) candidate. It is, therefore, impossible to accept the case of the appellants that the respondent and his companions on the one hand and Ajit F Singh with a posse of his own men on the other had reached the Kalaka polling booth at almost the same time. Indeed, i f this had been so there should have been a huge riot and a pitched battle between the two parties but no witness says so. The evidence merely shows that Col. Ram . Singh had reached the place just after Anil Kumar and Satbir Singh alongwith their men left aru! after G the Presiding Officer had set the matters right. The A.S.I. (P.W.10) also says that '3-4 persons had made a complaint in writing to him but he had not seen those reports on the date when they were made to hie. but it must be on the file. The witness was shown the file of complaints and he admits thus:- H "I have seen the file of complaints which has been shown to me now. That complaint is not in this complaint file."

424 SUPREME COURT REPORTS [1985] sµPP.2 s.c.R.

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

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

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

indeed, . if there was any such intimidlition, being the Presidiµg Officer he would not have crossed the column regarding tile same. He admits that he had served. in the Ahir High school which appears to have been patronized by Rao Birendra Singh and the possibility that this witness concealed the truth (as appears from his evidence) and made a statement regarding intimidation to oblige Rao Biren<!ra Singh cannot be ruled out. This is because he merely denies knowledge that the Ahir School belonged to . Rao Birendra Singh but he does not say affirmatively that Rao Birendr~ Singh had absolutely no connection with the said School. E Coming now to the rest of the evidence of R.W. 1, he says that after the departure of Ajit Singh, Col. Ram Singh came to the Kalaka polling booth and he was alone at that time •. The respoqdent in the presence of R.w. l told the Presiding·Officer that he should not be partial to any party and complained to him F abou.t the beating up of his polling agent. Hari Singh (P.W. 8), the Pre.siding Officer .as.sured the respondent. that he would not permit anything further to happen. Thereafter, a number of people came there and stoned the polling booth and despite the protests of the .wi.tness and the Presiding Officer they tried to snatch the ballot ba·x which was, however, protect~d by the Presiding G Officer .• In the meantime, the police party arrived and the people who had gathered .there sped away. Much was ni.ade by the counsel for the appellants regarding omission of the witness to mala> any repor.t to .the polii:.e.. But not much turns upon this because the witness clearly admits that as the Presiding Officer was in charge of the whole show, he had reported the matter to hlm who H had assured him that he would set things right. A number of

RAM SXNGI! v. COL. RAM SIN(rll [F.',Z.AL ALI, J.] 42?

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

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

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

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

A 1) while the polling was going on, between 7.30 and 8.00 a.m., Ajit Singh arrived with his compaDions and tried to create all sorts of trouble.

2) After the departure of Ajit Singh, Col. Ram Singh came alone and was assured by the Presiding Officer that he would not B allow any furher trouble to take place.

3) After Col. Ram Singh had left the place a nUlllber of people from the village came and wanted to poll forcibly, and 2-3 persons came out of the polling booth with a ballot .box.

4) He (RW 3) snatched the ballot box from the people and c returned the same to D.hani !(am (RW 4).

The witness states that after some time the s.o.o. came there and after having a talk with the Polling Officer he went away. After about half-an-hour or 45 minutes of the departure of the S,JJ,O,, the D.C. arrived and on his intervention the polling again started at about 12 mid-day. The witness vehemently denied 0 that his statement was recorded by the D.C. in a tape-recorder and said that the voice recorded in the tape-recorder (which was played to him in court) was not his. He even goes to the extent of saying that he did not see any tape-recorder with the o.c. nor did he have any talk with him.

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

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

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

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

The next witness is RW 4 (lJhani l{am) who was also one of H the members of the polling st!:lff and a teacher in a (;overnment

RAM SINGH \r. COL. RAM SINGH [FAZAL ALI, J. J 427

Primary School. He fully corroborates the story given by RWs 1 A and 3 and also gives the sequence of events referred to above while dealing with the evidenc~ of RW 3. His evidence does not appear to be of much consequence. At any rate the learned High Court has fully discussed his evidence and we agree with the conclusions arrived at by the High Court in this respect • • B RW 5 appears to be a voter of the Kalaka polling booth. He has been examined to prove the fact that when Ajit Singh and his party came to the booth, one Tula Ram who was a polling agent of Col. Ram Singh and real brother of RW 5, was beaten up by Ajit Singh and his party and when he tried to rescue him he was also beaten up and their clothes were torn and it was with great c difficulty that M<>.hinder Singh (RW 3) who was on duty rescued him and his brother from the clutches of Ajit Singh and his party. He further states that he, alongwith his brother Tula Ram, went to Rewari to meet Col. Ram Singh and narrated the whole incident to him. In cross-examination, the' witness says that he and his bro- ther had received fists and slaps as a result of which they bled D because of injuries on the.ir bodies. He further says that as there was no visible mark of injury they did not get themselves medically examined. He is an unsophisticated villager and once having reported the matter to Col. Ram Singh he did not think it necessary to file any complaint with the police.

RW 6 (Suresh) was also a voter waiting in a queue to cast his vote when at about 8.30 a.m. Ajit Singh amed with a revol- ver, appeared on the scene and entered tqe booth. He heard hue and cry-from inside the boOth. He corroborates the evidence of RW 5 about the beating up of Tula Ram and Ram Kishan (RW 5). He goes on to state that after about half-an-hour of the departure of Ajit Singh and his party, Col. Ram Singh came and after spend F about 5-6 minutes inside the booth he drove away. The witness further says in. cross-examination that tile polling did not start after the departure of AJit Singh in view of the commotion that took place there. After the departure of Col. Ram Singh the S.D.Q. and the !J.C. also came and ultimately the polling was continued. The witness finally says that he did not inform Col. G Ram Singh about the incident uor did anybody enquire f ram him anything about the same. In these circumstances, we do not think that the evidence of this witness is creditworthy.

Tfle other witnesses examined by the respondent not in respect of the Kalaka polling booth. H

428 SUPREME COURT REPORTS l1985 J SUPP.2 s.c.R.

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

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

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

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

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

RAM SINGii'v. COL. RAM SINGil [FAZAL ALI, J; J 429

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

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

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

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

The eViden~e of. PW 18 is almost in the same ter'm.<:>. Like others, he also seefl1S to made· a ·written report to the police station which has not been produced n.nd. uo act i.on see:i1s to h;;ive been taken thereon •. It is rather str':int;e that a nurnbet of wit'- H nesses say that they had made an ota.i or written com1-1laitlt: Yet no actiori was t&ken ther-=on which shows that thr~ stati;>.ment of the witness is a puiely cooked up story•

430 SUPRfil!E COURT REPORTS [1985] SUPP.2 s.c.R. I A This closes the evidence so far as the prosecution witness- es are concerned. The learned Jurige of the High Court has taken great pains in very carefully marshalling and analysing the evidence and so far as Kalaka polling booth is concerned, the findings of the High Court may be extracted thus: h "The evidence of the PWs on this point is not corro- borated. The ownership of the motor cycles abandoned by the party of the respondent was not traced. The ownership could be established from their Registration .8ooks. No effort was made to connect those with the respondent or his supporters. This shows that the P'Ws were drawing upon their imagination to make out c stories about the detention of the persons and the forcible polling at that polling station by the res- pondent.

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

Shri Sri Krishan SDO (Civil) stated that 3/4 persons gave him a complaint at Kalaka about the inci- dent. E It was a signed complaint. That complaint is not traceable. It was not found in the complaint file. Nor was it enetered in the complaint register. That com- plaint could throw light on the incident if at all it had been prodl!ced. The oral evidence has failed to convincingly make out this allegation that the voters were threatened at Kalaka.

From the overall assessment of the petitioners' evi- dence and the detailed discuasion in the previous G paragraphs concerning this polling station it has left an impression in my mind that the role assigned to the respondent has not been proved beyond reasonable doubt. Lot of suapicions which are indicated in the previous paragraphs attach to his evidence and it is difficult to say that the inference in favour of the H

RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.] 431

petitioners' case is .irresistible. the evidence of the petitioners is not of the type, which could persuade me to take a decision in their favour."

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

BURTHAL JAT POU.ING BOOTH

This now brings us to the second and the last limb of the arguments cidvanced by counsel for the appellants - the evidence regarding the corrupt practice in respect of Burthal Jat:. polling booth {for Lhort, referred to as 'Burthal booth'). To prove the allegations, the appellants produced PWs. 6, 7, 10, 26 to 33 and in order to rebut the case the respondent examined RWs 11, 12, 13, 14, 20 and 22. D We would first take up the evidence led by the appellants. PW 6, Krishan. Bihari, is merely a formal witness who has been examined with the complaint register of No.86 - Rewari consti- tuency in which both Kalaka and Burthal polling booths fell. fil.s evidence, therefore, does not appear to be of any sig- nificance·•

The next important witness is PW 7, the Deputy CO:rilmissiortet' E of Mohindergarh District ( N. Balabhaskar), a major part of Whose evidence ·has already been discussed by us while dealing with his evidence relating to Kalaka polling booth. So ·far as Burthal polling booth is concerned, he states that he had received a complaint that a worker of Congress (J) candidate was attacked by villagers of Burthal Jat and his main purpose to visit the villa- F ges was to verify the truth or falsity of the complaint:.. But, when he went to the Burthal booth, the polling officer expressly told him that nothing had happened inside the booth. Sbme of the polling officials who were there, however, told him that there was some incident outside the polling booth but the identity of the persons responsible for the same had not been established. PW G 7 further goes on to say that some villagers at that place told him that the workers of Congress (J) had come there in a jeep and tried to create trouble and they were able to detain two person ·, and the third one had run away. The D.C. interrogated those two persons who told him that they had no connection with the jeep. He further admits that he did not interrogate them as to which H

432 SUPllliMJ<: COURT REPORTS [1985] SUPP.2 s.c.R.

A political rarty they belonged - whether Congress (I) or Congress (J). He further testifies to the fact that a jeep was found at the spot with some sticks lying inside it but he did not see any motor-cycle near the polling booth. The persons who were attacked at Burthal by the villagers and whom he did not interrogate, tor reasons best known to him, were Satbir Singh and Anil Kumar. This part of the evidence, therefore, corroborates the case of the respondent that assunrlng Satbir Singh and Anil Kumar were companions of Col. Ram Singh but they had undoubtedly been attack at the village and the o.c. also admits that the Sarpanch of the village Burthal had complaint to him regarding this matter when he reached Burthal Booth. PW 7 then says that at Burthal he recorded the conversation of the Presiding Officer in detail c though he admits that some portion of the recorded conversation was erased inadvertently due to his own voice being recorded there.

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

F A very important admission has been made by the witness which completely nullifies the statements recorded in the tape recorder. In this connection, he states thus:

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

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

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

a) that there was no instructions· from the Goverrunent A for recording such conversations as he had done,

b). that even if he was· supplied a dictaphone, it had to be mainly used by him for recording his own obser- vations in his own voice, B c.) that the cassette and the dictaphone remained all the time with him and were uot deposited by him in the record room.

d) eve:1 a copy of the transcript of the recorded statements prepared by his stenographer was not depo- C sited in the official record room, and

e) that there were some gaps in the recorded tape (Ex.P-1) which had been left out and at some places the voice was not clear and audible. D PW 7 in his statement says that the statements cf the witnesses recorded by. him were transcribed by his stenographer under his supervision in his off ice but he may have temporarily gone out to attend tO some other work. This is rather import~nt because if the statements were typed out in his absence it would have been very difficult for his stenographer to find out whose statement he was transcribing which throws a considerable doubt on the credibility of the. recorded statement. To a direct question by the court - "Can you rule out the possibility of tam- pering with the .transcript" .... his answer was - "l do not think if it was possible". The answer is self-evident and frightfully vague so as not to exclude the possibility of tampering. Ordina- rily, the admissions made by PW 7 would have been sufficient to discard the statements recorded in the tape-recorder. We shall, however, develop this aspect of the matter when we deal with the statements recorded on the tape-recorder.

The next witness is Shri Krishan, s.o.o., PW 10. We have already discussed a major part of his evidence while dealing with the Kalaka polling booth and pointed out the serious infirmities from which his evidence suffers. Same coIIDDents would naturally apply to his evidence relating to Burthal booth to show that his evidence is not creditworthy. However, we shall briefly summarise what he had said about Burthal' booth. In the first place, he states that when he reached Burthal, alongwith o.c., he saw H Satbir and Anil Kumar surrounded. by the people of 'that village.

434 SUPREME COURT REPORTS ll985] SUPP.2 S.C.R.

A He also saw a jeep containing some sticked parked there, which was, on the instructions of the D.C., taken into custody by the police. Satbir and Anil Kumar were also taken into custody under the orders of the D.C:. In support of his evidence he relies on Ex.P-9, the complaint which was handed over to him by one Mam Chand. The manner in which the complaint was handed over to PW 10 B and as to the author of the complaint are rather dubicious parti- cularly in view of the evidence of Mam Chand (PW 35). PW 35 was shown Ex.P-9 and after seeing the same he stated that the same did not bear his signatures. He also deposed that there are two other persons by the name Mam Chand, e.g., there is one Mam Chand who is the son of Kehar Singh and the name of the father of the other Mam Chand was not known to him. It is, therefore, manifest 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 Z6, Shri Mahabir Singh, is another witness who has been examined to prove the active participation of Anil Kumar and Satbir Singh. Far from supporting the case of the appellants he supports the case of the respondent. lie states that he was a voter and had cast his vote. The learned counsel for the appellants, however, did not choose to rely on this witness and made a prayer for cross-examining him. In cross-examination all that PW' 26 said was that he was on duty as an election agent of the respondent inside the booth and that he knew Satbir Singh previously but did not know to which place he belonged. Thus, the F evidence of this witness is of no assistance to the appellants.

PW 27 (Dharam Vir) was a voter and, according to his evidence, he had gone to cast his vote at about 8.00 a.m. when near about that time Col. Ram Singh accompanied by 50-60 persons came there and summoned Mahabir and Udai Bhan who were his elec- G tion agents and told them that he was leaving some persons behind and that they should see to it that no-one should be permitted to vote for the Congress (I) candidate. The witness further states that Satbir Singh was amongst the. 15-20 persons left behind by Col. l{am Singh. ln cross-examination he admits that he cannot ide't\tify Satbir Singh. It is, therefore, difficult Lo believe as H to how he named Satbi.r Singh as one of the persons left behind by

RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.] 435

A Col. Ram Singh. His evidence on this point appears to be clearly false. The sequence of events mentioned by other witnesses shows that Col. Ram Singh had reached there near about 9.30 a.m. and he had come alone which fact has been supported by an overwhelming majority of witnesses for the respondent. Therefore, we. find it difficult to place any reliance on this witness and his evidence B does not inspire any confidence and must be rejected.

The next witness is Thaver Singh; PW 28 who also speaks in the same terms as PW 27. We are unable to place any reliance on this witness because he was the most interested witness being a polling agent of the Congress (I) candidate. During cross-exami- nation he stated that he verbally complained to . the Presiding c Officer about the conduct of Col. Ram Singh but he did not make any compliance to any officer ill writing. His evidence, therefore,carried no weight unless corroborated by some unimpeachable documentary evidence. D PW 29, Amir Chand, also repeats the same story as PW 28 but there is no evidence to corroborate him. Reading in between the lines of his evidence it appears that .he was a strong supporter of Rao Birendera Singh though he does not coomdt himself in so many words •

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

PW 32, Shamsher Singh, is rather an importantwitness and according to his evidence he went to the Burthal Booth at about F 7.30 a.m. and returned to his house at about 8.30 a.m. He then again went to the polling booth at about 2.30 p.m. He admits that he was a polling agent of Smt. Sumitra Bai, the Congress (I) candidates, and states that while he was on his way to the booth in the afternoon he met Satbir Singh and Anil Kumar who asked him to support Col. Ram Singh and when he told them that it was one's G own choice l:o support any candidate an altercation took place which was, however, stopped with the arrival of Mam Chand, Ram Singh, Kishori and some other people. Thereafter, an ASI of police came there in a jeep who intervened in the matter and in his presence also Satbir Singh started uttering abuses. He further says that he found a jeep parked there and people told H him that it belonyed to Col. Ram Singh, a statement which is clearly inadmissible. He finally says that when the D.C. and the

436 SUPREME COURT REPORTS [198j] SUPP.2 s.c.R.

A S.D.O. came there he informed them of the incident. In cross- examination he admits that he made no report in writing to the police that he was beaten up nor did he get himself medically examined. lie also did not file any complaint in any court against Satbir and Anil Kumar. In these circumstances, we find it difficult to rely on his evidence. B Kishori Lal, PW 33 says that he was a Chowkidar of the village Burthal Jat. He says that when he had gone to the polling booth at about 2.30/3.00 p.m. to cast his vote he found Satbir Singh and Anil Kumar having an altercation with Shamsher Singh, PW 32. lie rescued Shamsher Singh with the help of some other per- sons. The witness, being a chowkidar of the village, should have c immediately reported the matter to the D.C. or the S.D.o. or the ASI, all of whom had come to the spot but he did not do so and kept quiet which speaks volumes against the credibility of his evidence.

More or less to the same effect is the evidence of PW 34 (Ram Narain) who is also a Lambardar of village Kakoria. lie says D that on the day of the polling at about 2.30/3.00 p.m. he had gone to the Village Burthal Jat where he saw an altercation going on between Satbir Singh. Anil Kumar on the one hand and Shamsher Singh on the other. An ASI had also arrived there followed by the D.C. and the S.D.O. He admits that he had never met Anil Kumar and Satbir Singh nor did he know them before. Although he was an eye-witness to the incident of altercation yet he does not say that he had told anything to the various officers who were present at the spot. His evidence, therefore, does not inspire much confidence.

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

"The time of their arrest as noticed makes the evi- dence of the petitioners' witnesses in regard to the incident at Burthal Jat very doubtful. The analysis of the evidence led by the petitioners reveals that they G have failed to prove this part of the charge of corrupt practice against the respondent."

A bare perusal of the evidence bf the witnesses for the appellant clearly reveals that they are not telling the truth and hence no implicit faith can be reposed on their testimony. H

RAM SINGH v. COL. RAM SINGH [FAZAL ALI, .J. j 437

This now brings us to the evidence ·led on behalr rJf: the A respondent. To begin with, RW 11, Ravi Datt Sharma, who was a Lecturer in Govt. Higher Secondary School, Rewari, w;:;ts a .f:'olling Officer at Burthal Booth. According to him, the polling went on smoothly from 7.30 a.m. to 4.30 p.m. Without any untoward inci- dent. He categorically states that he knew Col. Ram Singh and he (respondent) did not visit the polling booth on the polling day. B He further goes on to state that at about 1.00 p.m., the D.C. and S.IJ.M, visited the polling booth. On their enquiry, the witness told them that everything was going on smoothly. He Clearly denies that the o.c. had recorded any conversation which he had with him in the taperecorder. His evidence, however, is confi.ned only to the incident that had happened inside the booth and not c outside. We do not see any infirmity in his statement A.s he appears to be an independent and truthful witness.

RW 12, Parbhati, was a voter of Burthal booth and he testi- fies to the fact that he had cast his vote at 8.00 a.m. though he had reached the booth at 7.30 a.m. After casting his vote he came out and stayed with his co-villagers and remained. there will 1.30 or 2.00 p.m. He further states that during this period Col. Ram Singh or anybody on his behalf did not come to the booth nor did any quarrel or dispute take place inside or n.earabout the polling booth. He further state• that Shamsher Singh (PW 32), Sarpanch of the village was standing at a small distance with some people and he (PW 12) heard some altercation between them. During the course of the said altercation the police arrived at the spot and removed two persons (meaning perhaps Anil Kumar and Satbit Singh) wh0m he did not know. Thereafter, Shamsher Singh and other villagers returned to the polling booth. In cross examination the only fact which he admits is that Mahabir and Udai Bhan were the polling agents 'of Col. Ram Singh and Shamsher Singh and F Thaver Singh were the polling agents of Smt. Sumi tra Bai. He categorically states that he did not know Satbir Singh or Anil Kumar and therefore he was not in a position to say whether they were there or not. He_also states that at a distance.of about 2 killas from the booth a jeep was standing and he did not see any sticks in that jeep, and that villagers were saying that B.D.O. G and s.n.o. have come there. Since hi' did not know the n.c. was also there. He stoutly denied the allegation that Col. Ram Singh had come to the polling booth in the morning soon after the start of the polling and that he (respondent) had left 15-20 persons who had to be removed by the police. It may be noticed at this stage that the suggestion in cross-examination itself presupposes H

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

A and does not dispute the fact that Col. Ram Singh had come to the booth only in the morning, that is to say, long before the arrival of the deceased. This is an important and intrinsic circumstance to show that so far as Burthal booth is concerned, the statement recorded on the tape-recorder by PW 7 could not have included the respondent and that was perhaps the initial B case of the appellants themselves.

RW 13, Ami Lal, was also a voter of Burthal booth and he says ithat so long as he was there he did not see Col. Ram Singh nor did any dispute take place either within the polling station or outside. He admits that he saw Shamsher Singh, who as the polling agent of Congress (I) candidate, altercating with two c unknown persons at a distance of about 100-120 karms. He categorically states in cross-examination that he did not see any candidate at the booth on that day. He also testifies that he knew Col. Ram Singh since the last election. He further denies the suggestion that Anil and Satbir were threatening the voters. Nothing further of any importance seems to have .been elicited from this witness. D RW 14, Sheo Chand, who as also a voter, fully supports the evidence of l<W 13 and says that he knew Col. Ram Singh whom he did not see passing through the approach-road to Burthal Jat. A number of suggestions were made to him which were denied by him and which are hardly of any importance. ' E l<W 20, T.C. Singla, is more or less a formal witness who produced certain letters (dated 25.4.82 and 30.4.82)'written by Col. Ram Singh to the Chief Election Commissioner of India containing certain complaints made by Col. Ram Singh about the irregularities in the election which are not relevant for our purpo~e. F RW 22, Col. Ram Singh, is the respondent h~mself. We shall deal with his evidence relating to both Kalaka and llurthal booths. To begin with, he clearly states that the D.c. (PW 7) was not impartial and was working against his interests. Perhaps G we may not go to the extent of·accepting the apprehensions of the respondent but there is no doubt that the conduct of the D.c., as revealed in this case, leaves much to be desired. According to the evidence of RW 22, at about 8.45 or 9.00 A.M. two of his persons from Kalaka polling booth came to him in a dishevelled condition: there clothes were torn and they appeared to have been badly beaten up. They informed him (RW 22) that Ajit Singh S/o

RAM'SlNGI! v. COL. RAM SINGH [FAZAL ALI, J.] 439

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

The rest of his evidence is regarding a number of other factors which are not relevant for the purpose of this case. Reliance was, however, placed ,by the appellants thst "Satbir Singh, who was a leading figure at Burthsl, was an adopted son of F Jagmal Singh, who was father-in-law of Col: Ram Singh. The witness further clarifies thst he had divorced his wife as far back as 1962. Thus, when the witness says thst he hsd no relations with Satbir Singh, we dare say' he is right. A number of questions regarding his domestic matters were put in cross- examination but they are not very relevant. G

As, ·however, this witness, who appea,red before us, was examined by us at our instance and was subjected to cross-exami- nation by bot.h the parties, we shall discuss thst part of his evidence a little later when we come to the statement of this witness recorded by PW 7 in his tape-recorder at Kalaka polling H booth.

440 SUPREME COURT REPORTS [1985j SUPP.2 s.c.R.

A Thus, leaving the tape-recorded statement for the time being, we adhere to our view expressed in the earlier part of this judgment that the evidence adduced by the respondent seems' to be much superior in quslity than that adduced by the appel- lants. The learned Judge of the High Court was also of the same view and had rightly held that the allegations of corrupt B practice or of capturing of booth had not been established by the appellants beyond reasonable doubt or,to be very accurate, by the standard of proof required to set aside the election of a successful candidate.

We might now rush through the relavant documentary evidence produced in this case which has been fully dealt with by the c learned Trial Judge and we agree with his conclusions. To begin with, Ex. P-5 is the diary of the Presiding Officer of the Kalaka booth. We have already discussed the effect of this docunent and found that while in colunn on No. 21 relating to interruption or obstruction of poll, he (PW 8) mentioned Col. Ram Singh putting pressure on polling party and getting bogus votes polled in his favour yet in colunn. No. 20(e), relating to intimidation, etc., D he made no mention of any such incident and crossed the same, meaning thereby that there was no intimidation of voters. The document, Ex. P-5,.is therefore, self-contradictory and does not inspire ·any confidence. The explanation given by PW 8 in his evidence is that while he was filling up colunn 20 (e) he did not mention anything as he was greatly perturbed at that time. This E is a most implausible and fantastic explanation which apart from being inherently improbable appears to be absolutely absurd. The witness wants us to believe that at the time of filling up colunn 20 (e) he was perturbed but in a split second while filling up the very next colunn, i.e., colunn 21(4) he suddenly gathered strength to compose himself and made the observations contained F in the said colunn. As the two entries were supposed to be filled up simultaneously it is impossible to believe that while filling up one entry he was perturbed and while filling up the next entry he was in a composed state of mind. In other words, the explanation comes to this: his mental state of mind by a miraculous process cooled down and led !ti.In to make the observa- G tions which he did in column No. 21(4). It seems to us that what had really happened was that the plea of intimidation, as alleged by the appellants, is a cock and bull story and when the witness was confronted with a contradictory situation and found himself in a tight corner he invented this ridiculous explanation which has to be stated only to be rejected. this affords an intrinsic proof of the fact that no threat or intimidation was given by the

RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.] 441

respondent or his men during his presence and in order to save his skin the witness msy have msde the entry in column No. 21(4) subsequently as an afterthought. Thus, no reliance can be placed on a witness like PW 8 for any purpose whatsoever.

Ex.P-16 is a certified copy of the FIR (No.103) lodged by" the Presiding Officer implicating Col. Ram Singh and msking some allegations. This document also appears to. us to be a spurious one as discussed by the High Court.

So far as the documents produced on behalf of the respondent are concerned, they are R-1 to R-9 consisting of letters written by Col. Ram Singh to various authorities c including the Chief Election Comnissioner of India complaining about the misuse of powers by the polling officiais in the conduct of election.