RAM SINGH & ORS •. v. COL. RAM SINGH

This is all the documentary evidence that mst ters and, in our opinion, nothing turns upon these documents. D

This now brings us to the last and inevitable step of the drams starting with P.w. l and ending with R.w.22. In order to understand the admissibility, credibility and the truth of the statements contained in the cassette, we might give a brief summary of the msnifest defects and incurable infirmities from which the statements recorded on tape recorder suffer. Our E conclusion on this question is arrived at not only after going through the tape recorded statements but also hearing the cassette ourselves in this Court on big amplified speakers. The defects/infirmities msy be pointed out thus:

l. The voices recorded at number of places are not very clear and there is tremendous noise while the statements were being recorded by the D.C. (P.w. 7)

2Copy pinpoint2. A good part of the statements recorded on the cassette has been denied not only by the respondent but also by R.Ws. 1 and 3. No other witness has come forward to depose to the identification of the voice of the responden~ or those of R.Ws. l and 3.

3Copy pinpoint3. There are erasures here and there in the tape and besides the voice recorded being not very clear, it is extremely hazardous to base our decision on such an evidence. H

4Copy pinpoint4. One of the important infirmities from which the tape recorded statements suffer is the question of custody. P.W. 7,

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

A the o.c. has clearly admitted in his evidence that though he was supplied a tape recorder or a dictaphone but he was not asked by the Government to record the statements on the tape-recorder which was really meant for recording his own impressions and not those of the witnesses. However, even though P.W. 7 violated the instructions of the Government he gravely erred in not placing B the recorded cassette in proper custody, that is to say, in the official record room after duly sealing the same, and instead keeping the same with himself without any authority.

Thus, the possibility of tampering with the tape recorded statements cannot be ruled out and.this.is almost a fatal defect which renders the tape recorded statements wholly insdmissible. c

5Copy pinpoint5. P.w. 7 himself admits that the transcript of the tape recorded . statements was prepared in his office under his supervision by his stenographer. He further admits that when the transcript was being prepared he was temporarily absent from his office to attend to certain other works. This appears to us to be a very serious matter because he had no legal authority to leave D the recorded cassette with his stenographer, who was transcribing the same, even for a single moment as the possibility of its being tampered with by his stenographer or by anybody else cannot be safely ruled ·out. He further admits that even a copy of the transcript was not deposited in the official record room.

6Copy pinpoint6. , One important aspect as part of the manifest defects may now be mentioned. R.Ws. 1 and 3 have denied the identity of their voice in the cassette and, therefore, that part of the evidence becomes clearly inadmissible. The respondent, Col. Ram Singh, however, appears to us to be a truthful, upright and straight- forward person because while he chose to admit some parts of the tape recorded statement to be in his voice and as being correct but denied the rest: he could have, if he wanted, denied the whole of it. It seems to us that as the respondent was a trained and disciplined soldier he told the truth as far as appeared to him· In fact, if he had failed to identify his voice, then nothing. could have been done and his statement would have b<.en per se inadmissible.

7Copy pinpoint7. As it is, the statements on the tape rscorder seem to have been recorded in a most haphazard and unsystematic manner without following any logical or scientific method. This will be clear from the fact that the tape recorded statements do not indicate H

RAM SINGH v. COL. RAM SINGH (FAZAL ALI, J ·] 443

the polling booth.where it was recorded, the name of the person whose stat.ement was recorded, the time of recording, etc.

A proper methodology which the D.C. should have followed was to first indicate the place, time and name of the person by himself speaking and then recorded the statement. No such scheme was followed and the court is left to chance and conjecture to filld out as to when and where and whose statement was recorded. As it is, we can only say that the statement of the respondent was recorded only at Kalaka and this fact seems to be admitted by the appellants in their written submissions (Vol. III, p.59) thus :- c is not the petitioners' case that Col. Ram Singh .. It came to the polling station or polling booth. The petitioners' witnesses (P.w. 27, P.w. 28 and P.w. 29) have only .stated that Col. Ram Singh came to Burthal Jat at 8.00 a.m., instructed his supporters not to allow any voters to vote for Congress (I) candidate D ·and thereafter left the place ...

It is, therefore, clear that if at all Col. Ram Singh visited Burthal booth, he did it only at 8.00 a.m. when the D.C. had not even reached there and, therefore, the question of recording his statement at Burthal Jat does not arise. E In our opinion, the best course of action for the D-C~ should have been to record the statements of the respondent and other persons himself in writing instead of recording the.same on a taperecorder which has led to so many complications. And, if he wanted to use a taperecorder he should have taken the necessary precautions to see that too many voices, interruptions, distur- F bances are completely excluded. He ought not to have·allowed any person to speak while he was recording the statements. Unfortu- nately, this confusion has resulted from his conduct in flouting the instructions of the Government by not using the dictaphone only for recording his own impressions but. instead recording the •. statements ·af the persons concerned. G

Thus, in short, the manner and method of recording the statements in the taperecorder by the D.C. has resulted in a total mess making confusion worse confounded. P.w. · 7 has not given the details to complete the picture as to what the respondent had done. Therefore, the evidence of n.c. on this H

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

A point is conspicuous by the absence of any such description or comments. Indeed, the o.c. has just acted as a silent machine to whatever was recorded instead of applying his mind as to at what stage the respondent denied his v0ice and where he admitted the same. We should have at least expected the o.c. to give better details in a case like the present one which, as already B mentioned, entails serious consequences for the re.spondent if his election were to be set aside .

.Having regard to the reasons mentioned above, we are absolutely satisfied that the tape recorded statements of the witnesses are wholly inadmissible in eviderice and,. at any rate, they do not have any probative value, so as to inspire any c confidence. Hence, it is extremely unsafe to rely on such tape recorded statements apart from the legal infirmities pointed out above.

That should have closed the whole chapter as far as the tape recorded statement of the respondent is concerned. We shall, however; mention below a few glaring defects, omissions and v imperfections:-

1. some statements said to h~ve been recorded by P.W. 7 ·have been flatly denied by R.ws. 1 and 3, one of whom was a polling officer and the other a constable.

E 2. A good part of the tape recorded statement has been vehemently and persistently denied by him (respondent) rightly or wrongly.

3. It is true that the searching and gruelling cross-examination of the respondent in this court by Mr. Sibbal, F counsel for the appellants, seems to have forced the respondent to admit certain innocuous facts though he might just as well admitted those facts which caused no harm to him.

We might mention here that our object in examining the respondent as a court witness in this court and subjecting him to G cross examination by both the parties was not to fish out • technicalities by putting all sorts of querries and questions, relevant or irrelevant. In such a complex state of affairs, the statement of the respondent, torn from the context, cannot form the basis of a judicial decision. Take for instance, one statement of the respondent which was repeated to him by Mr· H

RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.J 445

A Sibbal several times in different forms. The occasion was if the respondent had sent Ram Kishan and Tula Ram or other persons to the police station or he himself had gone there .along with them. The respondent admitted that these persons alongwith others had come to his house and complained that they had been beaten up and harassed by the members of the Congress (I) candidate and also showed injuries on their persons. He repeatedly said that he himself did not go to the police station but sent them there. Perhaps in view of the serious situation arising from the severe altercation that took place between the supporters of Col. Ram Singh and those of the other party, it is quite possible that on hU111anitarian grounds :~ may have personally gone to the police c station with the injured persons but as at the' time of his deposition he happened to be the Speaker of the Vidhan .Sabha he may have felt that his vanity would be injured if he admitted that he himself had gone to the police station. Even if he had given this reply, it would not have· improved the case of the appellants. This is just a sample of the questions put by the D counsel to him.

Another important feature of his evidence is that he tacitly admits at various places that while his statement was being recorded, a number of gaps were there, a number of other people were speaking together, leading to great ·confusion which must have made him lose his wits. On hearing the entire conversation ourselves, we are of the opinion that the statement of the respondent is not coherent particularly because of gaps, noises, sounds, and that the statements was recorded in an atmosphere surcharged with emotions.

In this view of the matter, we do not consider it necessary to delve deeper into the various statements made by the .respondent. It is sufficient to indicate that on the appellants' own case he had not gone to Burthal Booth after 8.00 a.m. and, therefore, the D.C •.who reached there at 12 Noon could not have recorded. his statement. We are, therefore, not in-a position to hold that implicit reliance should be placed on the evidence led by the appellants. Even if the respondent made some admissions in his unguarded moments that would not strengthen the case of the appellants in view of the standard of proof required in an election matter where the allegations of corrupt practice have· to be proved beyond reasonable doubt almost just like a criminal case. H

It was strongly urged by Mr.· Sibbal that in view of our recent decision in Ram Sharan Yadav's (supra) the impact of the

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

A evidence on the court would show that the respondent was lying and that was sufficient to prove the appellants 1 case. We are unable to agree with the broad interpretation put by the learned counsel on our decision.

Jl In fact, if we apply the principles laid Ram Sbar,;,, Yadav's case, the appellants' case must fail at the threshhold.

Lastly, we might consider the argument advanced before us

.. by the learned counsel for the respondent who submitted that even if the case of capturing of booths as alleged by the appellants against the respondent is made out that would at best be an c electoral offence and not a corrupt practice within the meaning of the provisions of the Representation of the People Act, 1951. We are, however, not called upon to go into this question as no clear case of capturing of booths has been made out. The learned Judge of the High Court has dealt with the case of capturing of booths very extensively and has written a very well reasoned judgment annotated with convincing reasons and conclusions.· It D would indeed be extremely difficult to displace the judgment of the High Court on the ground sought by the appellants. The High Court has considered even the minutest details so as not to invite any comment that the Judge has not applied his mind. Even as regards the tape recorded statements the learned Judge .has pointed out several infirmities and defects which despite the ingenious and .channing arguments of Mr. Sibbal have not been rebutted.

On a careful conside.ration, therefore, of the evidence, circumstances, documents and proba.bilities of the case, we are fully satisfied that the appellants have failed to prove their case that the respondent was guilty of indulging in corrupt practices. We, therefore, affirm the jtigment of the High Court and' dismiss the appeal but in the circumstances without any orde~ as to costs.

VARADARAJAN, J. : This appeal under section 116A of the Representation of People Act, 1951, hereinafter referred to as G 'the Act', is directed against the dismissal of Election Petition No. 13 of 1982 on the file of the Punjab & Haryana High Court.

The appellants are registered electors of Rewari Constituency No. 86 of the Haryana Legislative Assembly. In the election held for that Constituency on 19.5.82 Col. Ram Singh, H

RAN SINGH v. 'COL. RAN SINGH lVAIWJARAJAN, J.J 447 • here.inaf ter referred to as 1 th~ respondent' who contested as the A Congress {J) candidate was declared elected on 21.5.1982 after the counting was over on 20.5.~2, defeating has nearest ri.;al, 0umitra Uevi who is said tO be the sister of Kao llirendra Si.ng,h and. had cont~sted in ~hat Constitut:ncy as the "congress \I.) car1di- date. Sumitra Uevi lost by a Ul(:l.tgin of 8,760 votes. The appel- B lants sought in the election petition a declaratit)n that the respondent's election is void under section 10U of the Act. They alle.ged that there was direct and indirect interference and attempt to interfere on the part of the respcndent and bis agents and other persons with his consent with the 'free exercise of the electoral right of the electors. The respondent: stoutly oppos<.:!d the election petition. After considering the evidence aud hearing c the counsel of both the parties the learned Judge ~ho tried the election petition found that the appellants failed to prove their case beyond all reasonable doubt and dismissed the petition with cost~ of Rs.2,000.

Mr. Kapil Sibal, learned counsel for the appellants D conflned his arguments in this Court to the instances of corrupt practice alleged in respect of only two polling stations Kalaka and iSurthal Jat. It is, therefore, 'necessary to confine our attention to the case of the parties in regard to only those instances.

The appellants' case in regard to the Kalak..a polling station is this! The polling in Kalak.a pol.ling station started• and continued smoothly until 10.30 .a.m. on 19.5.1982. But at <3bout lU.JO a.m. the respondent came there along with bU or 70 persons inclueling Ve.sh R.c.1j, Kam KrishJn anJ Krishan Lal of Kalaka • and Sheo Lal, Gujar 1 KislTi L'akot, Umrao Singh, H..aghubir Singh, balbir Singh Gu Jar, Abbey Sin6h Guj.:ir and Suresll cf Kewari. 111e F resvon<lent wa,s c~1rrying a gun while some ol those who accompanied l1iru were armed with guns, la this and swords. The respondent and his companions threatened with arms an<l terrorised the el.ectors. ·' who were waiting outl::iide the polling station to exercise their right to vote as a result of which Sheo Chand, Gurdial. Puran, f1angal., tlasti Kam, lshwar dnd Al.IL:lr Si.ngh ran awdy wi.tt1uut. exercising the'lr tight' to vote. The respundent and i:;vme other arined pt:.'.rsons among.st his companions entered Lhe polling station and brand.i.shed tht:>.l.r 5uns towards tne Presiding Officer and other members ot the pol1.ing staff as we11 as the polling agents of the various candidates and ordered e\'eryone to stand. still. They threatened the voters who were i.n the polling station wben they H rnised object ion.s to their conduct and made them to quit as also

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

the polling agents Amar Singh and Suraj Bhan. The respondent d~rected a Sikh amongst one of his companions carrying a sword to - hit Mangal Singh who strongly objected to the respondent's behavi9ur and he was accordingly assaµlted and injured. One Basti • Ram who too objected to the respondent's behaviour was hit by one of the companions of the respondent with the butt of a rifle. Ishwar, a Lambardar was also hit by the barrel of a gun. The respondent and his companions snatched about 50 ballot papers from the polling staff at gun point and they were marked in favour of the respondent and put into the ballot boxes after one of the respondent's companions thtnnb--marked the counter foils of the ballot papers as directed by the respondent. Tula Ram, Desh · Raj, Ram Krishan and Krishan Lal and others helped the respondent c in marking the ballot papers. The police at the polling station was out numbered and remained as silent spectators. But when a number of people of the village came and additional police arrived the respondent and his -companions made good th€:ir escape leaving behind two motor cycles bearing registration Nos. A.s.w. 5785 and H.R.P. 534. Two of the respondent's companions were caught by the public and handed over to the police. Suraj Bhcin, D Amar Singh, Ishwar Singh and Basti Ram made a report about the incident to the Returning Officer, Rewari Constituency at about 12 noon on the same day. On the arrival of the police the Presiding Officer of the polling station lodged a ~etailed report, giving his version of the incident and thereupon F.I.H.. No. 103 of 1982 was registered by the police. The Deputy Cormnissioner of the District and the Returning Officer of the Constituency also came to the polling station and made enquiries and tape recorded the statements of some of the concerned persons. The process of polling got disrupted for over one hour and a number of voters had to refrain from voting. It is clear from these facts that the respondent and his companions with his F consent attempted to interfere 'with the free exercise of the electoral right of a large number of electors and the respondent succeeded in his plan to scare away and compel some of the electors to refrain from voting at the election. - • As regards the incident at Burthal Jat polling station the appellants' case is this :- As per his pre-planned strategy the respondent visited Burthal Jat village at about 8 a.m. on 19.5.1982, accompanied by SU or 60 persons including Anil Kumar, Satbir Singh, Raghubir, Shea Lal Gujar, Rishi Dakot, Umrao Singh, and &.lbir Singh Gu jar. Many persons including Mahabir Singh, Hira Singh, Mam Gl'land, Dharam Vir, . Thavar . Singh and Amar Chand .H gathered there. The respondent told his suporters to ensure that

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 449

A electors who were likely to vote for the Congress (I) candidate are not allowed to go into the polling station and that he was leaving behind Anil Kumar and Satbir Singh with 10 or 15 musclemen to help them in preventing electors of the Congress (I) candidate. A jeep containing lathis and other weapons was left at the disposal of those persons. While leaving the place the respondent told Anil Kumar and Satbir Singh who were on their motor cycle that he was depending upon them and they should ensure that no votes are cast in favour of the Congress (I) candidate and- maximum votes are polled in his favour. Those persons kept on obstructing and threatening the voters who were coming to the polling station to exercise their electoral right. Some of the persons who were thus terrorised were Su_rjit, c Raghubir Singh and Lal Singh. When the Sarpanch Shamsheer Singh who came to vote was about to reach the polling station, Anil Kumar and Satbir Singh came by the motor cycle and told him that he must vote for the respondent and otherwise he will not be allowed to proceed further. When Shamsheer Singh said that he would vote freely according to his choice Anil Kumar and Satbir D Singh assaulted him with sticks and gave him slaps and fish blows. Some respectable persons of the village including Kishori, Ram Narian and Lambardar Mam Chand who were present nereby rescued Sham.sheer Singh. The Assistant Sub Inspector Kalayan Singh who was on election duty came there by a jeep and seen the fight arrested Anil Kumar and Satbir Singh. The Deputy Commissioner of the District and the Returning Officer [Sub E Divisional Magistrate] also came there and took the jeep along with lathis and other weapons into their custody. Thus it is clear that Anil Kumar and Satbir Singh who are related to the respondent committed the aforesaid corrupt practice at the instance of and with the consent of the respondent. F The defenCe of the respondent as regards the incident in and at the Kalaka polling station is one of complete denial and he contended that if there is any report lodged by Suraj Bhan, Amar Singh, Ishwar Singh and Basti Ram it must be a manoeuvered affair to create evidence in .the election petitio_n and that the report of the Ptesiding Officer is not his own: version but a G false document prepared at the instance of the resPondent's poli- tical opponent Rao Birendra Singh and other state agencies on whom he exercised powerful influence. The FIR No. 103 of 1982 dated 19.5.1982 does not support the appellant's case of any interference or attempt to interfere with the free exercise of the electoral right of any elector on the part of the respondent H or any one else with his consent and does not directly disclose

450 SUPREME COURT REPORTS ' [1985] SUPP.2 S.C.R.

A the conmission of any corrupt practice of undue influence. On the other hand, the truth is that the men of Rao Birendra Singh cap- tured the booth at Kalaka and the supporters and voters of the respondent were badly out-manoeuvered which could be gathered from the fact that whereas Sumitra Devi obtained 484 votes the respondent obtained only 53 votes in that polling station. B The allegation that the respondent and some of his compa- nions entered the polling station and brandished their guns at the Presidi.ng Officer and ordered the other polling staff and polling agents of the varlous candidates to stand still does not attract any provision of the Act regarding the commission of corrupt pr.::i.r;ti1:.€· The allegation that the po~ling agents Suraj C Bhan and Amar Singh were threatened and turned out of the polling station does not constitute corrupt practice as they are not alleged in the election petition to be electors. Mangal Singh, llalbir Singh and Ishwar who are alleged to have been assaulted and injured are not alleged in the election petltlon to be elec- tors of the Constituency and therefore that allegation does not constitute corr11pt pr;ictice. The allegation that 50 ballot paper,s D were snatched from the polling staff and polled in favour of the respondent does not con~titute corrupt practice.

The responde[1t'~ deb.~nce regarding the incident at Burthal Jat is one of complete d~nial of the allegations in the election petition in rec;~rd t(J that incident but there ls no denial of the E allegation that A.nil Kumar and Satbir Singh are related to him. He has contended that it is wholly incorrect to allege that any jeep with which he had any connei::tion was carrying lathis and other weapons and that it was taken into custody by the offi- cials. The allegation that Anil Kumar and Satbir Sin&h committe<l any corrupt practice with or witt1out the consent of the respon- F dent is false, n•a lici.ous and mischivious. Those two persons were falsely implicated in the case under sections 107 and L51 of the Code of Criminal Procedure and a clwnsy attempt was made to i..!.llplic4te them by the subordinate police officials who were under the.powerful influence of Rao Birendra Singh whose sister Sumitra Devi was losing rtnd ultimatel;r been defeated by the respondent. G Two independent alleged corrupt practices, one by the respondent and tl1e other by the others, have been clubbed together .in the election petition.

It is necessary to note all the issues framed by the Tri-:- bunal. They are: H

RAM SINC,1! v. COL. RAM SIN(,'!! [VARADARAJAN, J.] 451

(1) Whether the allegations of corrupt practice alleged in A the election petition have not been suppo~ted by an affidavit? If so, what is its effect?

(2) Whether petitioners Nos. 2 to 5 have not deposited the security under section 117 of the Representation of People Act, 1951? If so, what is its effect? B

(J) Whether petitioners Nos. 2 to 5 have not complied with section 81 (3) of the Representation of People Act by not attesting the copy of the election petition to be true copy under their own signatures? If so, what is its effect'/ c (4.) Whether petitioners Nos. 2 to 5 have not verifed the election petition? If so,.what is its effect?

(5) Whether all~gations of corrupt practice alleged in the petition lack material facts/legal ingredients and do D not disclose Complete cause of action? If so, what is its effect'!

(6) Whether the allegations of corrupt practice alleged in the election petition are vague and lack full parti- culars? If so, what is its effect? E (7) Whether the averments in paragraph 7 of the petition are unnecessary, scandalous, frivolous or vexatious and calculated to prejudice a fair trial? If so, whether the same are liable to be struck out under rule 6, order 16 Civil Procedure Code? F ( ~) · Whether the respondent himself and/ or through his agents and other persons with his consent, committed corrupt practice of undue influence, as alleged in paras 9 to 13 of the election petition or not? If so what is its effect? G The learned Judge of the High Court took up for trial issues 1 to 7 as preliminary issues. lly order dated 10 .12. l 98Z he found issues 2 to 6 in favour of the appellants and issue 1 against them but permitted them to carry out certain amendments and remove the defects pointed in his order. He declined to consider issue 7 as a preliminary issue on the ground that evidence is H necessary to record any finding on that issue. On the question

452 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A whether the allegations in paras 9 to 12 of the election petition constitute corrupt practice he held that prima facie they do not disclose any defect in form or substance but they contain material facts and allegations of corrupt practice. It may be noticed that the allegations relating to the incidents at Kalaka and Burthal Jat polling stations are contained in paragraphs 9 to B 11 of the election petition.

On the issue regarding the corrupt practice alleged in relation to Kalaka polling station the learned Judge held that the Presiding Officer's diary Ex.P-5 appears to have been prepa- red by the Presiding Officer, Hari Singh (PW 8) later under the pressure and influence of the defeated candidate, Sumitra Devi c through her brother Rao Birendra Singh and that FIR No. 103 of 1982 dated 19.5.1982 contained in Ex.P-6 is inadmissible in evidence to corroborate the evidence of PW 8 about the incident of Kalaka polling station on the ground that the origianl report of PW 8 to the police had not been SlUllilloned by the appellants. He found that the tape-record Ex.P.W 7/1 prepared by the Deputy Commissioner of Mohindergarh District, (PW 7) has been tempered D with later, disbelieving the evidence of PW 7 that a portion of what he had recorded at the Burthal Jat polling station was erased by his own voice inadvertently on the same day. He also found that the authenticity of the transcription of the tape re- cord in Ex.P-1 is not proved with definiteness. He relied upon the evidence addued on the side of the respondent in preference to that of the other side and held that the appellants have failed to prove this item of corrupt practice beyond reasonable doubt.

Regarding the incident at the Burthal Jat polling station the learned Judge found that the appellants have failed to prove F that Anil Kumar and Satbir Singh are related to the respondent. For coming to this conclusion he relied upon Ex.P-9 which pur- ports to be a report of Man Chand (PW 35) who has, however, disowned it while holding the Anil Kumar and Satbir Singh were canvassing for their candidate at Burthal Jat as stated by Maha- bir Singh (PW 26) but it is not made out who their candidate was. G He found that the appellants have failed to prove this item of corrupt practice. On the findings recorded by him in regard to these and the other items of corrupt practice alleged by the appellants he dismissed the election petition with costs as stated above.

H The points arising for consideration in this appeal are:

RAM SINGl!v. COL. RAM SINGH (VARADARAJAN, J.J 453

(1) Whether the incident in and at the Kalaka polling A station alleged by the appellants is true and has been proved beyond reasonable doubt?

(2) Whether the incident alleged in and at the Kalaka polling station does not constitute corrupt practice within the meaning of the Act? and B

(3) Whether the incident at Burthal Jat polling station alleged by the appellant is true and had been proved beyond reasonable doubt?

Before considering the evidence on record in regard to the C incidents at Kalaka and Burthal Jat polling stations it is desir- able to note certain provisions in the Act and certain decisions to which the Court's attention was drawn by Mr. Kapil Sibal, learned counsel appearing for the appellants and Mr. p.P.Rao, . learned counsel appearing for the respondent. D Sectioon 87 of the Act relates to the procedur~ before the · High Court and clause (1) thereof reads thus:

"Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be in accordance with the procedure applicable under the E Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits."

Order 8 rule 1 to 3 and 5 of the Code of Civil Procedure relating to written statement read thus: F "1.(1) The defendant shall, at or before· the first hearing or withiin such time as the Court may permit, present a written statement of his defence.

2. The defendant orust raise by his pleading all matters which show the suit not to be maintainable, or G that the transaction is either void or viodable in point of law, and all such grounds of defence as, if not opposite party by surprine, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment,. per- formance, or facts showing illegality. H

454 SUl'REME COURT REPORTS [1985] SUPP.2 s.c.R.

A 3. It shall not be suffic1ent for a defendant in his written statement to deny generally the grounds alleg- ed by the plalntiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

5.(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implkaticn, er stated to be not admitted in the pleading of the de- fendant, shall be talren to be admitted except as against a person under a disability, but the Court, may, in Its discretion, require any such fact to be proved." c Section 116 A of the Act relating to appeal against certain orders of the High Court lays down inter alia that an appeal shall lie to the Supreme Court against the dismissal of an elec- tion petition under section 98 of the Act. In the present case the election petition has been dismissed by the High Court under that section. D Section 116 C of the Act relates to procedure in the appeal. Sub-section (1) of that section reads thus:-

"116C. (1) Subject to the provisions of this Act and of the rules, if any, made thereunder, every appeal E shall be heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearill8 and determination of an aweal from any final order passed by a High Court in the exercise of its original civil jurisdiction; and all the provisions. of the Code of Civil Pi:ocedure, F 1908 (5 of 1908) and the Rules of the Court (including provisions as to the furnishing of security and the execution of any order of the Court) shall, so tax ao may be, apply in relation to such appeal."

Section 100 of the Act mention the grounds for declarill8 an elec- G tfon to be void. Section 100(1) (b) reads thus:

"Subject to the provisions of sub-section (2) if the High Court is of opinion - that any corrupt practice has been committed by a returned candidate or his

, election agent or by any other person with the consent of a returned candidate or his election agent the High Court shall declare the election of the returned can· ·didate to be void."

RAM SINGH. v. COL. P.AM SlNGH [VAHADARAJAN, J.] 45.5

Section 123 of the Act lays down what are corrupt practices and sub-section 2 thereof reads thus:-

"123(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on .the part of the candidate or hls agent, or of any other person with the consent of the candiate or his election agent, with the free exercise of any electoral right."

Instruction 74 of the Instructions ·to Presiding Officers issued by the Eleclion Conmission of India reads thus: c "74. Preparation of the diary - You should draw up the proceedings connected with the taking of the poll in the polling station in the diary to be maintaineG for the purpose. You should go on recording the relevant events as and when they occur and should not postpone the completion and filing of all entries in the diary till the completion of the poll. You should mention therein all important events particularly •••••••••• • in the form given which is the same as the one in which EJ<.,p-5 in this case has been recorded."

Mr. Kapil Sibal learned counsel for the appellants relied upon certain decisions of the English Courts and of this Court in regard to the admissibility of tape-recorded evidence. I shall ref er to them.

In&. v. llaqsud Ali [1965] (2) All E.R, 464, the following observation has been made: F ·:The position on the evidence was that a very important part of that evidence was made up by a tape recording taken in circumstances that I must now indi- cate .......... On April 2 9, 1964 the two appellancs were at the Town Hall at Bradford and they were taken there into a room . .•........ There is no reason to suppose that both of the appellants were not there on this occasion voluntarily ••••••••••••• In that room there had been set up a microphone behind a waste paper basket which was connected to a recorder in another room .......... it is almost unnecessary to say that none but the police knew of the presence of the microphone in position ............. so it ran for just

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

A one minute over the hour .......... The tape, after it had been recorded, remained in the custody of the police and there is no suggestion that it was ·in any way interfered with. The conversation that took place between the two appellants was of course in their native tongue ........ and ..... the tape, it should now B be stated, had a number of imperfections ......... If the jury could come to the conclusion that here was something which amounted to a confession that they were both involved in the murder, it can be seen that this tape recording was a matter of the utmost importance. It was, indeed, highly important evidence and the defence sought strenuously to keep it out •••• c This is not the first time that the question of admissibility of tape recordings as evidence has come before the courts of· this country. In 1956, in a trial at Wiltshire Assizes Hilbery, J., admitted as evidence a tape-recording of a conversation in Salisbury Police Station and further admitted a • D transcript of the recording to assist the jury.

We can see no difference in principle between a tape recording and a. photograph. In saying that we must not be taken as saying that snch 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 recording can. be proved and the voices recorded properly indentified; provided also that the evidence is relevant and otherwise admissi- ble, 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." ·

ln K. v. Hobson [l972j (2) All E.R. 699, which arose out of a case where the accused was charged with corruption the prosecu- G tion sought to put in evidence certain tape-recordings. The defence contended that they were inadmissible in evidence as inter alia they were in many places unintelligible. It was however not contended that the tape recordings was inadmissible - II evidence of what are recorded .in them. The originality and authenticity of the tape were left to the jury in that case.

In Yusufalli Esmail Nagree v. State of Maharashtra [ 1967] - (J) S.C.R. 720, this Court has observed: •

RAM SINGH v. COL. RAM SINGH [VARADARAJM, J. j 457

"Like a photograph of a relevant incident a cont.em- A poraneous dialogue of a relevant conversation· is a relevant fac.t and is admissible under section 7 of the Indian Evidence Act."

Reference has been made in that case to RDop Chand v. Mahabir Parsbad and Anr. A.I.R. 1956 Punj. 173; Mahiodra Nath v. Biswa- B nath Kurulu 67 c.w.N. 191; Pratap Singh v. Tbe State of Punjab [1964] 4 s.c.R. 733 and R. ~· Maqsud Ali [1965] 2 All E.R. 464.

In Slu:i N. Sri Rama Reddy Etc. v. Shri V.V. Girl [1971] 1 s.c.R. 399, a decision of five learned Judges of this Court the following observation made in Yusufalli 's case (supra) has been quoted with approval:

"The contemporaneous dialogue betweeµ them formed part of the res gestae and is relevant and admissible under s.8 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape record of the dialogue corroborates his testimony. The process of tape-recor- ding offers an acCurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape-record of a relevant conversation is a relevant fact and is admissible under s.7 of the Indian E Evidence Act."

In R.M. llalkaoi v. State of Maharashtra [1973] 3 s.c.R. 417, this Court observed:

"Tape recorded conversation is admissible, provided first that the conversation is relevant to the matters in issue; secondly, there is identification of the voice, and thirdly, the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photo- graph of ·a relevant incident. The tape .recorded con- versation is therefore a relevant fact and is admissi- ble under section 7 of the Evidence Act.

1~58 SUPREME COURT R.EPORTS [1985] SUPP.2 s.c.R.

A In Ziyauddin llurhanduoain Jukhari v. Brijmohan Ramdas Mehra & Ors. [1975j Suppl. S.C.R. 281, this Court approved the High Court relying upon the tape recurded reproduction of the success- ful candidates' speeches to voters for holding that he had appealed to them in the name of rellgion.

B Mr. Rao learned counsel for the respondent relied upon the following four decisions in regard to the proof required in cases where election or returned candidates. is alleged to be void on the ground of corrupt practice. .

In Chenoa Reddy v. R.C.Rao E.L.R. 1972 Vol. 40 396, this Court observed: c '"This Court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the, nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity or his acting in self-defence to protect himself or a plea of alibi to show that he coUld not have committed the crime with which he was charged. The trial of an elec- tion petition on the charge of commission of corrupt practice is somewhat different •••••••••••••••••• the procedure before the High Court is to be !n accorclanee with that applicable under the Code of Civil Procedure to the trial of suits with the aid of the provisions of the Indian Evidence Act. Inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version ...

G . In Balal<rislma v. Fernandez [1969] 3 S.C.R. 603, this Court observed:

'"Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has

H been laid down that a corrupt practice must be proved -

RAM SINGH v. COL. RAM SLNGH [VJ\JWJARAJAN, J.j 459

in the same way as a crimir~l charge is proved• in A other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent."

In Sultan Salalniddfn Owasi v. Mohd. Osman Shaheed and Others. [1980J (3) s.c.c. 281, this Court observed: B

"'lt is now well settled by a large catena ·of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case.'' C

In limn Sharan Yadav v. 'l'bakur Muneabwar Nath Singh and Others., [1984j (4) s.c.c. 649, this Court observed:

"'As the charge of a corrupt practice is in the nature of a criminal charge, it is for the party who seta. 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 satisf ac- tion of a court that a candidate has been guilty of 'undue influence' then he is likely to be disqualified for a period of six years or such other period as the authority concerned under Section 8-A of the Act may think fit •••••••••••• while insistill!l on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process."'

In regard to what constitute election offences Mr. Rao invited attention to the decision of Ramaswami, J. in llageodra Kahco v. The State A.I.R. 1954 Patna, where it was stated in the complaint that the criminal revision petitioner before the High Court insisted upon going into the room where the b1llot papers were kept though the Presiding Officer had warned him to go out of the room and also the petitioner himself attempted to put the ballot papers into the box of one Nitai Singh Sardar and it has been held that there was proper evidence to record a finding of guillt and sufficient to sustain the conviction under section 131 (1) (b) and section 136 (1) (f) of the Act.

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

A On the other hand, Mr. Sibal invited attention to this Court's decision in Bara Dial v. Sant Lal & Ors. [1949] Suppl. (2) s.c.R. 739, in support of his contention about what is required to be proved in regard to an alleged corrupt practice. After quoting the provisions of section 2 of 46 and 47, Victoria.c 51 three learned Judges of this Court have observed: B "The words of the English statute, quoted above, laid emphasis upon the individual aspect of the exercise of undue influence. It was with reference to the w0rds of that Statute that Bramwell,B., made the following observations in Horth Durham [1874] 2 O'M & H. 152 :-

c "When the language of the Act is examined it will be found that intimidation to be within the statute lllllSt be intimidation practised upon an individual. The Indian Law on the other hand, does not emphasise the individual aspect of the exercise of s'uch influence, but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause. What is material under the Indian I.aw, is not the actual effect produced, but the doing of such acts as are calculated to interfere with the free exercise of any electoral right. Decisions of the English Courts, based on the words of the English statute, which are not strictly in pari materia with the words of the Indian statute, cannot, therefore, be used as precedents in this country.

In the present case, we are not concerned with the threat of temporal injury, damage or harm. On the pleadings and on the findings of the Tribunal and of the High Court, we are concerned with the undue exer- F cise of spiritual influence which has been found by the High Court to have been such a potent influence as to induce in the electors the belief that they will be rendered objects of divine displeasure or spiritual censure if they did not' carry out the command of their spiritual head." G I shall now consider the evidence relating to the incidents at Kalaka and Burthal Jat Polling stations one after the another. The incident in and at the Kalaka polling station consists of two parts, namely, (1) alleged booth-capturing by the respondent and his companions, all of them armed with deadly weapons like pistol H

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.) 461

and sword or kirpan and the polling of bogus votes marked in A favour of the respondent after threatening the polling officers and polling agents wl>.o were in the polling station with violence and making them to stand still, and (2) the respondent scaring away electors who were standing in the queue outside the polling statiun awaiting their turn for casting their votes. Regarding the first part of the incident at Kalaka there is the evidence of B P.Ws. 7 to 10, 12, 14, 17 and 18 on the side of the appellants and of R.Ws. 1 to 6 and 22 on the side of the respondent. P.Ws. 7 to 10 are official witnesses while P.Ws. 12, 14, 17 and 18 are private individuals. Similarly, R.Ws. l to 4 are official witnesses while R.Ws. 5, 6 and 22 are private individuals.

Tara <..'hand (P.W.12) is one of the appellants. He was the c polling agent of the Congress (I) candidate, Sumitra Devi who has been referred to at some places in the evidence as Sumitra Bia, along with Amar Singh (P.W.17). His evidence is that he retired as polling agent after one hour and P.w. 17 took over as polling agent a,nd thereafter he was arranging the voters in the queue. D He has stated that the respondent and 5 or 7 of his companions, all of them armed, entered the polling station when he was standing at the gate and they threatened the polling staff at gun point and asked them to stand aside. Thereafter the respondent asked his companions to do their work and they tore off the ballot papers from the bundle and affixed the seal in favour of the respondent and put those ballot papers.into the ballot box. E The respondent's companions, Tula .Ram who was his polling agent, Ram Krishan (R.W.5), Desh Raj and Krishan Lal put the seals on the counterfoils and the thumb impressions on the counterfoils of the ballot papers. Amar Singh (P.W.17), appellants' polling agent, Mangal Singh (P.W.18) and Basti Ram were present. When Mangal Singh (P.W.18) protested, the respondent's Sikh companion caused injury to him with his sword at the respondent's instance. When Basti Ram raised objection to the behaviour of the respondent and his companions he was injured with the butt of a gun. The police-men who were present in the polling station.did not intervene but some time later the people of Kalaka village and some other police personnel arrived.Then the respondent and his companions fled away, abandoning two motor-vehicles at the spot. The Deputy Commissioner (P.W.7) and the Returning Officer (P.W.10) came there one hour later. P.W.7 ·interrogated the polling staff and tape-recorded their conversation. The polling was stopped for over one hour and many peopel got frightened and went away from the polling station without casting· their votes. H P.W. 12 has admitted in his cross-examination that he had

462 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A canvassed for the Congress(l) candidate for d.ve to ten days prior to the date of poll and had worked as polling agent of Congress (I) cand.i.dates even earlier. He claims to have reported to the police after the completion of the poll and has stated that the police did not sead for anybody. Ile has also stated that he did not see A_iit Singh son of Rao Birendra Singh at B Kalaka during the poll. He has denied the suggestion that the Congress (I) worker• . beat the respondent's pollin:; agent, Tula Ram and drove him out of the polling station about one hour of the coiJID.encement of tht! poil.

Amar Singh (P. W.17) of Kalaka was the polling agent of Sumitra Devi alongwhh P.W.12. He claims to have taken over as C polling agent from Tara Chand (P.W.12) one hour after the colll!llencement of the pell. He has stated that at about 10.30 a.m. the respondent came inside the polling station accompanied by 3 or 4 personB. lhe respondent was amed with a rifl" while one of his companions had a sword and the ot~er had a pistol and the rest sticks. The respondent asked P.W.17 and the polling staff to stand aside and directed his companions to poll votes. D Thereupon the respondent's companions took the ballot !"'Pers and affixed thumb impressions and m.7rkcd the ballot papers and put them into the ballot box. When P.W.18 objected to the high handed behaviour of the respondent his Sikh companion thrust the sword at Mangal Singh (P.W.18). When Basti Ram also rafaed objection the respondent gave him a thr11st \{ith the butt of a E rifle. P.W.ll and others who were J.n the polling station were pushed outside. The police""'1en who were inside th~ JJOlling station did not interfere. Some time later the people from Kalaka village anci sorn.e police personnel arriv·ed and thereupon the respondent and his companio:.lS left the place. P.W.17 and others detained two motor-cycles of the respondent's party and caught hold of two of the £1.eelng perso!lS and produced- the motor cycles before P.W.7 who caine there alongwith P.w.10. P.W.17 has deni.ed in his cross-examinatlon that Ajit Si!lgh .son of Rao Birendra Singh visited the Kalaka Palling st.ation. He has denied the suggestion that he and ether Congress (I) supporters beat Tula Ram and drove him Ollt of the polling station and that he has given false evidence be.ing a sympathiser of the Congress (I) party. fungal Singh (P.W.18) of Kal.ab has stated in his evidence that when he was in the polling station and his parti- culars were being checked before he could cast his vote the respondent armed with a gun and accompanit!d by 3 or 4 persons, one of them armed with a pistol and the other with a sword and the r~st with lathis came inside the polling station. The

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 463

A respondent asked P.W. 18 and others who were in the polling station to stand aside under threat of being killed otherwise. When P.W. 18 objected to the repondent's behaviour the respondent asked his men to beat him and turn him out of the polling station. Thereupon the 'respondent's Sikh companion thrust the tip of his sword near his right foot. When Basti Ram B who was behind R.W. 18 protested against the behaviour of the respondent and his companions the respondent caused an injury to him with the butt of a rifle. Later the people of Kalaka village and some police personnel arrived and the respondent and him companions ran away. P. W. 18 and others informed P. W. 10 and the police about 'what happened. P.W. 18 has admitted in his c cross-examination that he had canvassed for the Congress (I) candidate but he lias denied the suggestion that he ,has always been helping the Congress (I) Party and has therefore given false evidence.

Hari Singh (P.W.8) who was a teacher in one of the Ahir D Educational Institutions was the Presiding 0ff icer at the Kalaka polling station. He has stated that at about 10.30 a.m. until which time the polling went on smoothly, the respondent accompanied by some other persons,reached the polling station and came into the polling station along with four or five persons, carrying a small gun with him while one of his companions was carrying a pistol and another a sword and the others sticks. 'The E respondent who appeared to be in a rage pointed the gun towards P.W.8 and others saying that the remaining votes should be polled. The respondent's companions snatched ballot papers from the officials in the polling station and tore off about 25 or 26 ballot papers and marked them in favour of the respondent and put them into the ballot box. They put their thumb-impressions on the counter-foils of the ballot papers. There was Mise outside when the respondent and his companions were inside the polling station. The respondent and his companions went out the polling station after 25 or 26 ballot papers had been put into the ballot box as stated above. Soon after the respondent and his companions left the place a Sub-Inspector of Police came there. P.W. 8 was writing the report when P.Ws.7 ar.d 10 accompanied by the Superin- tendent of Police arrived. After completing his report P.W. 8 got it signed by all the polling staff and handed it over to P.W. 7 and he recorded his statement. Ex.P-5 is the diary prepared by P.W. 8 in accordance with Instruction-74 of the instructions to Polling Officers given by the Election Connnission of India. P.W. H 8 had deposited Ex.P-5 along with the other records iil the Election Office. He has stated the Ex. P-5 was· prepared by him

... 464 SUPKEMC COURT liliPUKTS [l~85j SUPP.2 s.c.R.

A and that it is correct. In his cross-examination he has stated that he aoes not know if the High School run by the Ahir b:ducation Board where he was employed since 1972 does or does not belong to Rao Birendra oingh. He has denied that he and the members of his family had been supporting Rao Birendra Singh in the elections. He has admitted that he has not mentioned anything in column 20-E of Ex.P-5 relating to inti;nidation of voters and other persons except crossing it and has stated that it is b(;!cause he wa's very much perturbed at that time. Reference will be made in detail later to the contents of the Presiding Officer's diary Ex.P-5 and the report of P.W. 8 to the police contained in Ex.P-6 on the basis of which FIR No. 103 of 1982 dated 19.5.1982 had been registered by Dharam Pal (P.W.9) c Assistant Sub-Insp~ctor of police on 19.5.1982. Suffice it to say at present that reference has been made in Ex. P-5 to the respondent putting pressure on the polling staff and getting 25 or 26 bogus votes pol.led in his favour when there was a lot of noise and commotion in the polling station from 10.30 to 11.30 a.m. as a result of which the polling had stopped. In his report the police also P.w. 8 has stated that the respondent armed with D a pistol came inside the polling station alongwith four or five of his companions armed, one of them ">Tith a sword and the others with sticks and hurled abuses and forcibly polled about 25 or 26 ballot papers at gun point on account of which he could not stop them from doing so. The Assistant Sub-Inspector of police (P.W.9) who had been posted at Sadar Rewari police station on E 19.5.1982 has deposed about the registration of FIR No. 103 of 1982 on that day on the receipt of a rukka from Sub-Inspector, !Jeep Chand. He has stated that the FIR Ex.P-6 is in his hand-writing and that it is correct according to the material on the basis of which it has been registered. He has not been cross-examined about the registration of FIR No. 103 of 1982 F dated 19.5.1982.

Bala Bhaskar (P.W.7), the Deputy Commissioner of Mohindergarh was District Election Officer for the election to the llaryana Legislative Assembly held in May, 1982. He has stated that whe.n he was travelling by car at about 10.30 a.m. G between Monodola and Zainabad villages in the course of his visits to some of the polling stations in the Rewari Constituency on 19.5.1982 he received a wireless message to the effect that the respondent had complained against Congress (I) workers saying that 40 or 50 of them had attacked Congress (J) workers at Kalaka. P.w. 7 reached Kalaka polling station at 12.30 p.m. H after instructing the police over the wireless to take action on

RAM SlNGli v. COL. RAM SINGt! [VAIWJARAJAN, J • J 465

that complaint of the respondent. When he reached Kalaka polling station he received oral complaints. about the detention of a motor-cycle belonging to the wortters of the Congress (J) party. lie went inside the polling station and tape-recorded the conversations with the officers in Ex.P.W. 7/1 of which Ex.P-1 is the transcript prepared under his supervision. lie has stated that he compared the transcript Ex.P-1 with the original tape-record and found it to be correct and that it bears his signature by way of authentication. He has admitted that there are some gaps in Ex.P-1 as the voices in the tape were not clear and audible. He has stated that the tape record remained in his custody throughout and was not tampered with either himself or by anyone else and that it contains the voices of the Presiding Officer (P.W.8), the polling officer Roop Chand (R.W.7) and the c Police Constable, Mohinder Singh (R.W.3) whose number is 498.· Reference will be made later to the contents of the tape-record and to the report Ex.P-2 submitted by P.W. 7 to the Government about the incident which took place on 19.5.1982 during the elections as it had come to his notice. In his cross-examination D P.W. 7 has admitted that he could not now identify the persons whose voices were recorded in the tape and that the tape is Government property which had been issued to him by the Govern- ment and that the tape-recorder remained with him all the time and the tape-recorder alld tape-record and the transcript Ex.P-1 had not been placed in the record room. It has to be noticed that the respondent (R.W. 22) has admitted in his evidence that though he had made several reports to the Election Commission and other Election Authorities before and after the election with which we are concerned in this appeal he had not made any report against P.w. 7.

Shri Krishan (P.W. 10) was the Sub-Divisional Officer, Rewari and Returning Officer for the Rewari Constituency in the election held to the Haryana Legislative Assembly in May, 1982. In the cour.se of his tour of the Constituency after 10. a.m. on 19.5.1982.he reached Kalaka polling station at about 11 or 11.30 a.m. on receipt of a complaint from the polling station to the effect that the respondent alongwith some other persons intimidated the polling staff and the public at that polling station. He was with P.W. 7 when he reached Kalaka polling station and he found the polling at ~ stand-still at that time. When he reached Kalaka polling station the Station House Officer of Sadar Rcwari was present there alongwith a Head-COnstable and some other police personnel. The Deputy Commissioner (P.W.7) H conducted an enquiry and intefrogated the polling staff and the

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

A pol ice personnel and t:ape-r.ecorded their conversation. One of the polling offlcers told P.W. 10 that the polling agents were turned out by the responden~ and his companions and that a bundle of ballot papers was taken away and the ballot papers were marked and put into the ballot boxes and that the voters who were in the polling booth were turned out. He found two motor-cycles stranded near the polling station. It is seen from. his evidence that he was transferred from the Rewari Sub-Division on 1.6.1982 and that a file had been handled in a way different from the one in.which it had been handled until he handed over charge of his office. He has denied the suggestion that the file was created in a particular manner by insertion of some papers for fabricat- ing evidence in favour of the appellants. It has to be noticed in this connectlon that the respondent had complained Ex.R. 7 dated 4.5.1982 that P.w. 10 is married in the locality and was interfering with the election.

On the other hand, it is the evidence of Roop Shand (R.W.l) who was Steno-Typist in the office of the Project Officer, Agricultural Department in Haryana and the alternate Presiding D Officer in Kalaka polling station on 19.5.182 that after the polling started at 7.30 a.m. Ajit Singh son of Rao Birendra Singh came to the polling station at about 8.30 a.m armed with a rifle and accompanied by 15 or 20 persons and asked for the respon- dent's polling agent Tula Ram and that Ajit Singh's companions pushed Tula Ram out of the polling station. Ajit Singh remarked that the polling at the Kalaka polling station had always been one-sided and directed his companions to poll votes. When the polling staff resisted, Ajit Singh abused R.W.l and others and asked his companions to beat them and they slapped the polling staff. Ajit Singh' s companions picked up some ballot papers and tore them off from their counter-foils and put them into the ballot box for about on hour and left the polling station there- after. The respondent came to the polling station about one hour later and told the.Presiding Officer (P.W.8) that he should not be partial to any party and he came to know that his polling agent had been beaten and that bogus votes had been polled in the polling station. ~ereupon p.w. 8 assured the resondent that he would not permit anything of that sort to be repeated. About half an hour after the departure of the respondent from the polling station many people of Kalaka village gather.ed at the polling station and proclaimed that they would poll votes forcibly. When R.W. 1 and others resisted and collected the voting material those persons beat the polling staff and snatched the voting material and in the struggle which ensued P.W. 8 was

RAM SINGH v. COL'. RAM SINGH [VARAllARAJAN, J.] 467

A dragged upto the door of the polling station and was rescued by the police-men on duty. Since the police present in the polling station could. not pursuade the crowd to disperse pollirig was stopped at about 10.15 a.m. and p·.ws. 7 and 10 arrived there subsequently and arranged for the polling to restart after making the electors to stand in a queue. He has denied that P.w. 7 B asked for his name and profession and that he told him that he· was Roop Chand and a Stenographer. He has stated that he asked p.w. 8 to record the visit of Ajit Singh and his companions into the ]lolling station and that P.W. 8 told him that he has recorded it in his diary. The appe1Lants' case regarding forcible polling by the respondent's companions at his instance and the c tape-record was put to R.w. 1 and has been denied by him. He has admitted that a few days after the election the police obtained an affidavit from him on judicial stamp paper but he has denied that it was done under pressure of the respondent.

Deen Dayal (R.W.2), a teacher was the polling officer along with Dhani Ram (R.W.4) who is also a teacher. He has stated that after the polling at the Kalaka polling station went on peacefully for about an hour Ajit Singh, armed with a pistol, came with 15 or 20 persons at about 8.30 a.m. and entered Kalaka polling station forcibly and asked for the polling agent of the respondent and told his companions to remove him from there. Ajit Singh asked his companions to beat R.w. 2 and others and they were accordingly beaten, and P.W. 8 told them to allow Ajit Singh's companions to do whatever they liked and thus avoid being beaten saying that he would make a complaint about the matter. Ajit Singh and his companions polled bogus votes for about half an hour and·left the polling station. The respondent came there half an hour later and told P.w. 8 that he had been informed that his polling agent had been beaten and that bogus votes had been polled and protested against it to P.W.8. P.W.8 told the respon- dent that whatever had happened and that he would conduct the poll in a proper manner thereafter. About half an hour after the respondent left the place the people of Kalaka village came.in a crowd and entered the polling station and told the polling staff that they would poll votes forcibly in favour of Sumitra Devi. When ·the polling staff refused to act according to their desire they beat them and try to snatch the ballot box from R. W. 4. Meanwhile, Constable Mohinder Singh, (R.W. 3) came inside the polling station wrested the balloe box from the crowd and placed it at its original place. Soon thereafter a Sub-Inspector of H Police and some other constables ~\and tried to remove the crowd from the polling station. About hiilf an hour later P.w. 10

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

A crune there and left the place after talking with P.W. 8. P.W. 7 came there about half ao hour thereafter aod directed P.w. 8 aod the polling staff to conduct the polling properly and polling started again at about 12 noon. He had stated in his cross-exami- nation that he did not make any report either to the police or to P.Ws. 7 aod 10 though slaps aod fist blows had been given to him by the miscreaots but he asked P.W. 8 after PWs. 7 and 10 left the place as to whether he had reported about the maltreatment meted out to polling officers aod he answered in the affirmative. He has stated that P.W.7 talked only to P.W. 8 and to no other polling staff and did not tape-record aoy conversation in his presence and that he does not know if P.W. 7 had talked with the police constable who was posted at the polling station. He has denied that Ajit Singh had not come to the polling station at all aod that no incident of the kind stated by him took place in the polling station.

Mohinder Singh (R.W. 3) who was on duty as a police constable at Kalaka polling station on 19.5.1982 has stated that about half an hour after the polling started at 7.30 a.m. he heard shouts that Ajit Singh had come aod saw Ajit Singh, armed with a pistol, coming in to the polling station along with 15 or 20 persons and thac inspite of the fact that he obstructed 2 or 3 compaoions of Ajit Singh pushed the respondent's polling agent out of the polling station and startd beating him and he rescued him. He also stated that he does not know what Ajit Singh and his companions did inside the polling station where. they remained for about: 30 to 45 minutes aod that the respodnent came there by a motor-car with 2 or 3 persons about half an hour after Ajit Singh and his companions left the place and left the place 2 or 3 minutes later after going inside the polling station. He has further stated that about half an hour thereafter about 50 to 60 F persons crune from Kalaka village and entered the polling station forcibly and snatched the ballot boxes after beating the polling staff and they were turned out of the polling station by Sub-Inspector, Deep Chand and some police constables who arrived there some time later. He has stated that P.W. 10 came there about 30 or 45 minutes thereafter and left the place after talking with P.W. 8 and that P.-W. 7 arrived there about 30 to 45 minutes after P.W. 10 left the place and talked to the polling staff and arranged for the polling starting again at about 12 noon. He has denied in his cross-examination that e.w. 7 had any talk with him in the polling station and has stated that he did not make any report about the incident or the treatment meted out to him by Ajit Singh and his companions though the respondent's

RAM S'.:NGii v. COL. RAM SINGH [VARADARAJAN, J.] 469

polling agent was bleeding and hfa clothes were torn. He has denied that the voice recorded in the tape (Ex.P.w. 7/1) put to him is his voice and also that P.W. 7 int:errogated him and he made a statement. The appellants's case of forciHe polling by the respondent's. men was put to R.W. 3 and has been denied by him. B The evidence of R.W. 4 is more or less the same as that of K.Ws. 1 to 3 as regards the alleged forcible polling of bogus votes by Ajit Singh and his companions. He too has stated that at the instance of P.W. 7 who arrived there about half an hour after P.w. 10 left the place after talking to P.W.8 the polling started again. He has admitted in his c.ross-e.X8J.Ilination that p.w. 8 had some conversation with ·p.ws. 7 and 10 but •he has c denied that the respondent came to tne polling station armed with a revolver and accompanied by 15 to 20 persons and got some votes polled at gun point and ran away along with his companions on the arrival of the police and the villagers. D RamKrishan (R.W. 5), the brother of the respondent's poEing agent Tula Ram who has not been called as a witness admittedly supported the respondent in the election held in May,

1982. He has stated that he went to the polling station for casting his vote at about 7.30 a.m. when the polling started and that Ajit Singh, armed with a pistol, came to the polling station at about 8.30 a.m. accompanied by 40 or 50 persons and entered the polling station with 15 or 20 persons. Some persons who E entered the polling station along with Ajit Singh dragged Tula Ram out of the polling station and beat him and when he intervened they started beating him also as a result of which his clothes got torn and he was rescued by the police constable (R.W. 3). He went with his brother by his scooter to Rewari and reported to the respondent about the incident and leaving Tula F Ram at Rewari he came along with the respondent and 2 or 3 other persons by a motor-car to Kalaka village where .the respondent went into the polling station and left the place 5 or 7 minutes later for Rewari.. He has stated in his cross-examination that both himself and his brother Tula Ram bled from different parts of the bodies because of the injuries sustained by them and that G they did not however get themselves medically examined or make any complaint to any authority because there were only abrasions from which there was some bleeding. It is seen from his evidence that Tula Ram who has not been examined is alive and is in service as a Clerk in some department at Chandigarh where the election petition was tried. H

470 SUPREME COURT REPORTS (1985] SUPP;2 s.c.R.

A Suresh (R.w. 6) has statea that when he reached Kalaka polling station at 8.30 a.m. in May, 1982 Ajit Singh, armed with a revolver, call>! there with 40 to 50 persons and went inside the ·polling station with about lS to 20 persons. The respondent's polling agent Tula Ram was dragged out of the polling station and beaten. When R.w. S rushed for his help he too was beaten and was rescued by a police constable who was on duty at the polling station. The respondent came there by a car about half an hour after Ajit Singh and his companions left the place and went away after remaining in the polling station for about S or 6 minutes. The appellants' case of forcible polling by the respondent's men had been put to R.w. 6 and denied by him •. He too has stated in his cross-examination that P;ws. 7 and 10 came to the polling station' after the respondent left the place and. that on their intervention polling restarted and the people started forming a queue and he himself cast his vote thereafter.

The respondent R.w. 22 has stated that when he was in his house at Rewari on 19.S.1982 after deciding not to go out of the house on that day R.w. S and his polling agent Tula Ram came there at 8.45 a.m. from Kalaka polling station with their clothes tom and appearing to have been beaten badly and told him that Ajit Singh accompanied by SO or 60 persons entered the polling station and beat them and indulged in forcible polling and that he thereupon went by a car to Kalaka village alongwith R.w. S at about 9.lS or 9.30 a.m. on that day. Leaving his car at some distance he walked to the polling station and found SO or 60 villagers collected there and he entered the polling station protested to P:w. 8 and brought ·the complaint given to him by R.w. S and Tula Ram to his notice. After P;w. 8 assured him that nothing of that sort will be allowed to happeh in the remaining part of the day he returned from Kalaka 7 or 8 minutes later and sent a written report to the police ab.out the incident with copies to P:w. 7 and the election authorities and received a message from the police station at 10.30 a.m. that his complaint had been flashed to p;w. 7 by wireless message and that appropri- ate action was expected to be taken soon. He has further stated that in his letter Ex. R. 7 dated 4.S.1982 he requested for the appointment of an observer because of official foterference and had stated that p;w. 10 was married in that area and was inter- ferring in the election. He has stated in his cross-examination that FIR No. 103 of 1982 was connected at a later stage at the instance· of Rao Birendra Singh. He was the Speaker of Haryana Legislative Assembly until the first meeting of the newly consti- H tuted Legislative Assembly was held after the election held on

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 471

19.5.1982 and after having succeeded in the election as a A Congress (J) candidate he joined the Congress (I) Party and is now the Tnmsport Minister. He has admitted that he has not made any 1n~ntion in any of his complaints sent to the Chief Election Commissioner and other election authorities pd.or to 19.5.1982 that P.w. 7 was acting in any way against him in a prejudicial manner. He has admitted that he has not stated in his written B statement that he complained to the police in writing Rbout the incident in Kalci<a polling station and had sent copies thereof to the election Commissioner and P.w. 7. He has stated that he did not make any complaint naming Ajit Singh specifically about the incident at Kalaka because the picture was not clear to him at that time and .not because such an incident never happened. The c appellants' case of bodth-capturing and bogus polling by the respondent in Kalaka polling station had been put ~o R.W. 22 and denied by him. The tape-record (Ex. P.w. 7/1) was played before him and he has stated that it does not contain his voice and that it is rather the voice of Rao Birendra Singh. D The oral evidence of R.Ws. 1 to b that Ajit Singh came along with some of his companions and dragged out Tula Ram from Kalaka polling station and beat him and .that they snatched ballot papers and ballot boxes and got bogus votes polled in that polling station and the evidence of R.w. 22 that R.W. 5 'and Tula Ram came and told him that Ajit Singh accompanied by 50 or 60 persons entered the polling station and beat them and indulged in forcible polling cannot be accepted for two important reasons, namely, that no such plea has been put forward in the written statement of the respondent where no doubt he has stated vaguely that the men of Rao Birendra Singh captured the booth at Kalaka and the supporters and voters of the respondent were badly out-manouevered and it could be gathered from the fact that whereas Sumitra Devi had obtained 484 votes he had obtained only 53 votes in that polling station and not that Ajit Singh and his companions came to Kalaka polling station and indulged in forcible voting or that they beat R.W. 5 and his brother Tula Ram. The respondent has denied in his written statement that the process of polling got disrupted for over an hour at Kalaka G polling station and that a number of voters had to refrain from casting their votes; but, as mentioned above it haS been admitted by R.Ws. 1 to 4 that the polling was suspencial at Kalaka polling station on 19.5.1982 and that it re-started after the arrival of P.Ws· 7 and 10 at the polling station some time after the departure of the respondent and his companions. Though the case H

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

A of the respondent that there was forcible polling at the Kalaka polling station by Ajit Singh and his men cannot be accepted for want of any such plea in the written statement Mr. Sibal was justified in requesting the Court to accept the admission on the part of the respondent 1 s witnesses that there was forcible polling at the Kalaka polling station in the morning of 19.5.1982 B and that the polling got disrupted as a consequence thereof and that it was recommended after the arrival of P.Ws. 7 and 10 and to reject their evidence that Ajit Singh and his men were the cause.·

Under instruction 74 of Instructions to Presiding Officers issued by the Election Gomnission of India, extracted above, the c Presiding Officer is bound to draw up the proceedings connected with the taking of the poll in the polling station in the diary to be maintained for the purpose in the form in which Ex.P.-5 had been filled up by the Presiding Officer (P.W. 8). The Presiding Officer is directed by the instruction to go on recording the relevant events as and when they occur and not to postpone the completion and filling of all the entries in the diary to the D completion of the poll and he has to mention therein all the important events. Even the alternate Presiding Officer (R.W. 1) has stated in his evidence that the Presiding Officer (P.w. 8) told him that it was his duty to report about,the incident and he would do so. It is seen from Column 18 of Ex.P-5 relating to the number of votes polled that 195 votes were polled from 8 a.m. to 10 a.m., 205 from 12 noon to 2 p.m., 106+3 from 2 p.m. to 4 p.m. E and so on upto 4.30 p.m. and that in the disputed period from 10 a.m. to 12 noon only 51 votes were polled. In column 21 it is stated that the polling was interrupted and disrupted by rioting and open violence and that from 10.30 a.m. to 11.30 a.m. the respondent put pressure on the polling party and got 25/26 bogus votes polled in his favour and there was a lot of noise and conmotion outside. In column 22 relating to the question whether the poll was vitiated by any ballot paper being unlawfully marked by any person and deposited in the ballot box it is stated that 4 or 5 persons who came with the repondent snatched ballot papers and forcibly put them into the ballot boxes. The Presiding Officer (P.W. 8) who has deposed about the incident has stated in his evidence that Ex.P.-5 is the diary which he submitted after the poll, that it was prepared and signed by him and is correct and that he deposited it along with the other records in the election office. As stated earlier, what has been elicited in his cross-examination is that apart from crossing column 20(E) relating to intimidation of voters and other persons he has not H

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 473

mentioned anything in that column and that he .failed to fill up that column fo full because he was very much perturbed at that time. It has not been suggested to P.w. 8 that he had prepared Ex.P-5 later under the pressure and. influence of the defeated candidate Sumitra Devi through her brother Rao Birendra Singh. Nor is there any positive evidence to that effect on the side of the r'spondent. Therefore, it is not known on what basis the learned trial Judge has observed in his judgment that Ex.P-5 appears to have been made up by P. W. 8 under the pressure and influence of the defeated candidate Sumitra devi through her brother Rao Birendra Singh. In the absence of any material on record or even a suggestion to that effect to the Presiding Officer (P.W. 8) who has stated that he filled it up correctly and deposited it alongwith the other records · in the election office it is not possible· to agree with the view of the learned trial Judge that Ex.P-5 has been got up later by P.w. 8 under the pressure and influence of the defeated candidate Sumitra Devi through her brother Rao Birendra Singh. Ex.P-5, a contemporaneous document prepared by the Presiding Officer (P.w. 8) as required by Inatruction 74 (supra) and deposited by him in the election office after the poll was over alongwith the other records is a very valuable piece of documentary evidence corroborating the oral evidence of the Presiding Officer (P.w. 8) and other witnesses exsniined on the side of the appellants who have dei>osed about the first part of the incident in the Kalaka polling station. E

The next contemporaneous document corroborating the oral evidence of P ;w. 8 is the copy of the report of P. W. 8 to the police appended to FIR No. 103 of 1982, E.~.P-6 dated 19.5.1982, prepared by the Assistant Sub-Inspector of Police, P.w. 9 on receipt of a rukka from the Sub-Inspector of police, Deep Chand. F P.W. 9 rnlS stated that it is in his hand-writing and correct according to the material on the basis of which it was registered. As stated earlier, P.W. 9 has not.been cross-examined as regards the FIR contained in Ex.P-6. The learned trial Judge has rejected Ex.P-6 as being inadmissible in evidence for corro- b<irating the evidence of P.W. 8 about the incident in Kalaka G polling station on the ground that the original report of P.w. 8 to the police had not been summoned by the appellants. It is no doubt true that the original had not been summoned by the appel- lants before P.ws. 8 and 9 deposed about Ex.P-6 in their evidence. P.W. 8 has stated in his evidence that when he was writing the report soon after the Sub-Inapector of police came to H the polling station after the respondent and his companiona had

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

A left the place, P.Ws. 7 and 10 acompanied by Superintendent of police came there and that after completing that report he got it signed by the polling officials and handed it over to the police officer and he recorded his statement. It is stated in the copy of P.w. 8's complaint to the police appended to Ex.P-6 that at about 10.30 a.m. when the polling was going on smoothly the B reapondent came into thepolling station, armed with a small pistol and accompanied by 4 or 5 persons, one of them armed with a sword and the others with sticks, and hurled abuses and forcibly polled about 25/26 ballot papers at gun point on account of which P.w. 8 could not stop them from doing so. He also stated that the polling staff was threatened with danger to their lives and, therefore, they kept standing there for some time and that c the companions of the respondent dragged the polling agent (P.W. 17) of Sumitra Devi and appropriate action may be taken by the police. It is seen from the record that the appellants had taken steps to summon FIR No. 103 of 1982 dated 19.5.1982 and the Head Constable of Sadar Rewari Police station to prove the incident at Kalaka. The record further shows that the respondent also had applied for summoning the orders of Court disposing of FIR No. D 103 of 1982 as also FIR No. 104 of 1982 to which reference will be made in the course of the discussion relating to the incident at Hurthal Jat polling station. The respondent had also applied for summoning the Inspector of Police, Kedar Singh to appear with the relevant records showing the disposal of the above two FIRs. But subsequently he filed CMP 31 (E) of 1983 for substituting E another person in the place of Inspector Kedar Singh and though that petition was opposed by the appellants the trial Court allowed the petition on the same day i.e. 21.2.1983 itself. The appellants also had filed CMP 4l(E) of 1983 for summoning the file relating to those two FIRs from Sadar Rewari Police Station. That application was dismissed by the learned Trial Judge on F 25.2.1983. Thus it is seen that the appellants who had no doubt not taken steps for summoning the original complaint given by P.w. 8 to the police at the Kalaka polling station in the first instance probably because the respondent himself had originally sought the production of the relative records from the police station had later taken necessary steps to summon the original complaint as also to recall P.W. 8 for deposing about that fact. In these circumstances, I find that the necessary foundation must be held to have been laid for adducing secondary evidence by way of the copy appended to FIR No. 103 of 1982 (Ex.P-6) and that the appellants are therefore entitled to adduce secondary evidence of the contents of that complaint. The complaint of P.W. 8 to the police given :lnmediately after the incident was over and soon

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 475

after the arrival of the police personnel and the officials P.Ws. A 7 and 10 and the Superintendent of Police is another contempora- neous document and a valuable piece of documentary evidence corroborating the evidence af p;w.s and other witnesses examined on the side of the appellants to prove the first part of the incident in t.he Kalaka polling station. B The third piece of documentary evidence let in by the appel- lants for proving the first part of the incident in the Kalaka polling station is the tape-record (Ex.P;w. 7/1) of Which Ex. l"-1 is a transcript prepared under the instructions and mostly in the presence of p;w. 7 by his Stenographer. p;w. 7 haa stated in his evidence that inside the polling station at Kalaka · he tape-reorded the version given by the officers about the incident in that polling station in Ex.P;w. 7/1, and he compared the transcript (Ex.P~l) prepared by his Stenographer with the, original and found it to be a correct reproduction of the original, and he has authenticated it by signing it and that there are some gaps in Ex.P-1 as the voices in the tape were not clear and audible. He has also stated that the tape-recorder which had been supplied to ' him by the Government, the tape Ex.P;w. 7/1 and the trans~ript Ex.P-1 remained in his custody throughout and had not been deposited by him in the election office. He has not been questioned as to why he retained the tape, the tape-recorder and the transcript in his custody without depositing them in the election office. Therefore, :10 adverse inference can be drawn against p;w. 7 or the appellants from the fact that the tape, the tape-recorder and the transcript had not been deposited by p;w.7 in the election office. No suggestion has been made to P; W. 7 in cross-examination that he had in any way tampered with the tape-recrod (Ex.P;w. 7/1) and he has stated in his examination in chief that a portion of the tape relating to the incident at Burthal Jat polling station has been erazed inadvertently by his own voice. The learned trial Judge has rejected the tape-record (Ex.P;w. 7/1) holding (1) that it is tampered with later, disbelieving the evidence of ·the P.W. 7 that a portion of what he had recorded at the Burthal Jat polling station was erazed by his own voice inadvertently on the same day and (2) that the authenticity of the transcript (Ex.P;l) has not been proved with definiteness. It is not reasonable to reject the tape merely because some portions thereof could not be made out on account of noise and ·interference not only outside but also insl.de the polling station when what was being elicited by p;w. 7 from the polling officers and the police-man (R.w. 3) was being recorded. In R. v. Maqusud Ali (supra) tape recorded conversation of the two accused in a murder case has been held to be

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

A admissible in evidence for the purpose of proving the guilt of the accused and it has been observed that the tape-recording was a matter of the utmost importance and that it is indeed the highly important piece of evidence which the defence strenuously sought to keep out. In R. v. Robson (supra) in which reference has been made to R. v. Maqwd Ali (supra) tape-recording had been B held to be admissible in the case in which the accused was charged with corruption, rejecting the plea of the defence that i t was inadmissible inter alia because in many places it was un-intelligible thoug~a.....--rlowever not contended that the tape-recording was as such inadmissible in evidence of what was recorded on it.

c It is clear from these and the other decisions of this Court ref erred to supra that tape-recorded evidence is admissible provided that the originality and the authenticity of the tape are free from dobut. In the present case there is no valid reason to doubt them. In Shri N. Sri llama Reddy etc. v. Shri v.v. Girt (supra) referred to above a bench of five learned Judges of this Court has held that the contemporaneous dialogue D tape-recorded in that case formed part of res ges tae and that it is relevant and admissible under sections 7 and 8 of the Evidence Act. If it is res gestae it is admissible in evidence even under section 6 of the Evidence Act illustration 1 where of reads thus:

E ••A is accused of the murder of II by beating him. What- ever was said or done by A or II or the by-standers at the beating, or so shortly before or after it as· to form part of the transaction, is a relevant fact."

The following passage in regard to incidents forming part of the ~ gestae is found in para 509 of Hals bury' s Laws of England lYol. 15) Third Edition:

"There are many incidents, however which, though not strictly constituting a fact in issue, may yet be regarded as forming a part of it, in the sence that they closely accompany and explain that fact• In testifying to the matter in issue, therefore, witness- es must state them not in their barest possible form, but with a reasonable fullness of detail and circum- stance (g). These constituent or accompanying inci- dents are said to be admissible as forming part of the res gestae (h). When they consist of declarations

RAM SINGH v. COL. RAM SINGH [VAl<ADARAJAN, J.j 477

accompanying an act they are subject to three qualifi- A cations; (1) they orust be contemporaneous or almost contemporaneous with the fact in issue and must not be made at such an interval as to allow of fabrication or to reduce them to the mere narrative of a past event (i) though this is subject to apparent exceptions in the case of continuing facts (k); (2) they IID.lSt relate B to and explain the act they accompany, and not independent facts prior or subsequent thereto (i); and (3) though admissible to explain, they are not always taken as proof of the. truth of the matters stated, that is, as hearsay (m)." c P.w. 7 has stated in his evidence that .the voice of P.w. 8 who was the Presiding Officer at Kalaka polling station is recor- ded in the tape, that the tape contains also he conversation of the alternate Presiding Officer, Roop Chand (R.W. 1) and that the voice of the Constable Mohinder Singh (R.w. 3) who was on duty at the polling station and had made a complaint to him is also recorded in the tape. It is true that he has admit~ed in his cross-examination that he cannot identify the voice with any of the persons mentioned by him. The transcript of the tape (P. W. 7/1) after it had been recorded in a larger tape with the help of a more sophisticated instrument in this Court was prepared by this Court and some portions thereof has been admitted by R.W. 22 to be in his voice and he has recognised in the larger tape the voice of even P.w. 7 in some portions of the conversation which admittedly took place between him and P.\i. 7 in the office of R.w. 10 at about 7.30 p.m. on 19.5.1982. It is seen from the transcript that some one had answered the question about what his name and number were and that one Mohinder Singh had answered saying that his name and number were Mohinder Singh and 498 which tally with those of R.W. 3. In the answer to question as to how many persons came inside the polling station Mohinder Singh had stated that four persons came inside and 20 or 30 persons were remaining outside ·and there were also 5 or 6 vehicles. In answer to the question whether he had seen arms or amlID.lnitions ·iD the hands of those persons who stood outside and of those four persons who entered the polling station Mohinder Singh had stated that perhaps Colonel Sahib, referring to the respondent, was armed with a gun while some persons were armed with swords and some 2 or 3 persons were armed with lathis. It is further seen that in answer to the question as to what he was and what was his name one Ro,op Chand informed the questio~ that he was Roop H Chand and a Stenographer in the Project Office of the Agricul- tural Department in Haryana. These particulars tally with those

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

A of R.W. 1. It is seen from the tape that P.W. 17 had also answered certain questions saying inter alia that he was Amar Singh, polling agent of the Congress (I) candidate and that there were 5 or 6 vehicles with a number of persons in them. It is also seen from the tape that during the course of conversation between the respondent and P.w. 7 at the office of P.w. 10 the fact that B P.W. 7 had gone to Kalaka polling station immediately after the respondent and others left the place and that he got the statements 'tape-recorded there was mentioned by P.w. 7 to the respondent. In these circumstances great reliance has to be placed on the tape (Ex.P.W. 7/1) and its contents not only for corroborating the evidence of P.Ws. 7 and 8 to the extent they go but also as res gestae evidence of the first part of the c incident. The learned trial Judge was not justified in rejecting the tape- record (Ex.P.W. 7/1) and the transcript (Ex.P-1). It must be remembered that the respondent who had openly disowned any art of the tape as containing his voice and had, on the other hand, gone to the extent of saying in the trial Court that it rather contained the voice of Rao Birendra Singh has admitted in this Court portions of that tape as being in his voice and that he has stated that he cannot identify any voice other than those of himself and P.W. 7.

Coming now to Ex. P-2, P.w. 7 has stated in that report that around 10.30 a.m. when he was proceeding by his car between Manodola and Zainabad villages he received a message on the police wireless that in Rewari Constituency the Congress (J) candidate had complained that about 50 to 60 Congress (I) workers had attacked his workers in Kalaka village. He immediately direc- ted the Station House Officer of Sadar Rewari to rush to the village. At 11.35 a.m. he received a message on the police wire- less that villagers had refused to vote in Kalaka alleging that F Congress (J) workers had polled some bogus vo.tes in Kalaka polling station. Therefore he proceeded to Kalaka polling station and interrogated the Presiding Officer and the polling officers of the polling station and recorded the conversation in his tape-recorder. When he was told that Congress (J) workers came into the polling station and snatched ballot papers from the polling staff and polled them in favour of the respondent, he advised the polling officer to accept tendered votes from the electors if they came to the polling station for voting and he thereafter went to Burthal Jat. This report submitted by P.W. 7 some time after the results of the poll were announced corrobo- rates the evidence of P.W. 7 about what he did at the polling station soon after he went there on receipt of a wireless message about the polling of bogus votes in favour of the resporxlent.

RAM SINGH v, COL. RAM SINGH [VARADARAJAN, J. J 479

With respect to the office which he holds, the respondent, as a party and his own witness, is wholly unreliable. In his written statement he had vaguely alleged that the men of Rao Birendra Singh captured the booth at Kalaka and the supporters and voters of the respondent were badly out-manoeuvred arid that the said fact could be gathered from the fact that whereas Sumitra Devi had obtained 484 votes he had obtained only 53 votes in that polling station. The only suggestion made to P.Ws. 12 and 17 who have denied it is that Ajit Singh visited the Kalaka polling station. No suggestion was made to any of the witnesses examined on the side of the appellants in the cross-examination that Ajit Singh came armed with some armed companions and beat R.w. 5 and Tula Ram and dragged them out and that they forcibly c polled bogus votes. Such a case was projected by the respondent only after the respondent started to let in oral evidence on his side after the appellants had closed their evidence. In these circumstances, when questioned as to why he had not made any complaint naming Ajit Singh specifically for the incident at Kalaka R.w. 22 has stated in his evidence that it is not because D such an incident never happened but because the picture was not clear at that time. It is impossible to accept this explanation of R.w. 22, for the polling took place on 19.5.1982 and the respondent filed his written statement in the election petition long thereafter on 14.9.1982. If, as the respondent would have it, Tula Ram and R.W. 5 came to his residence at Rewari in the morning of 19.5.1982 and informed him about the incident at the E Kalaka polling station arid thereafter he went there and complain- . ed to P. W. 8 about it, he should have come to know about the details of the incident before he filed his written statement long thereafter on 1.9.1982. If by 14.9.1982 the picture of what happened at the Kalaka polling station 19,5.1982 was not clear it is not known how it would have become clear only after appellants F had closed their evidence and just before the respondent began to let in oral evidence on his side. Therefore, the explanation of R.W.22 that he had not named Ajit Singh specifically in relation to the incident at the Kalaka polling station not because it never happened in the manner stated by his witnesses but because the picture was not clear at that time cannot be accepted at all. G

R.w. 22 had stoutly denied in the trial Court that the tape record (Ex. P.w. 7/1) contained his voice but added that it is rather the voice of Rao Birendra Singh. But after the tape was recorded with the aid of a more sophisticated instrument by playing it in this Court in the presence of the respondent in the I!

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

A office and also in the open Court, R.W. 22 has admitted some portions of his conversation with R.w. 7 in the office of P.W. 10 at about 7 or 7 .30 · a.m. on 19.5.1982. In the cross examination made in this Court after R.W. 22 had heard the re-recorded larger tape being played in the Court R.W. 22 has stated that he could not recognise the voice of any person in the tape other than B those of himself and p.w. 7. If the tape used by p.w. 7 for recording the conversation could not be followed and understood clearly when it was played in the trial court with the very sal1!e instrument by which it was recorded what R.W. 22 could have said was that he cannot say whether it contains his voice but he could not have gone to the extent of saying that it does not contain his voice but it rather contains the voice of Rao Birendra Singh. c This also shows that the evidence of R.W. 22 is not reliable.