RAM SINGH & ORS •. v. COL. RAM SINGH

In his croas examination in this Court R.w. 22 has stated that he was the Speaker of the llaryana Legislative Assembly until the new Legislative Assembly met after the elections in May, 1982 and could therefore have summoned any officer to his off ice and he did not go to the police station on 19.5.1982 and he is quite positive about it. But in the later portion of his evidence in this Court he has stated that not only his admission of the transcript of the tape (Ex. P-1) to the effect that he went to the police station but also hl.s written statement that he did not go to the police station on 19.5.1982 are both correct and that he .would emphsize that he.did not go to the police station et all on that day. He has also stated that although the voice in the tape says that he went to the police station and that voice appears to be his own voice he did not go to the police station because he was the Speaker of thE Haryana Legislative Assembly on that day and could have SUIIlliloned any police officer to his office. However, it is his own evidence that he did go to the office of P.W. 10 to meet P.w. 7 at about 7 or 7 .30 p.m. on 19.5.1982. This also shows that the evidence of R.W. 22 is not reliable.

R.W. 22 ha• admitted the voice in the tape that when P.W. 7 asked him about when he received the message about the incident at the Kalaka polling station he answered by saying that it was about 11.30 a.m. and that. it is correctly recorded in the tape. It is seen from the transcript that the respondent had stated in that conversation that he thereafter went to the Kalaka polling station and questioned his men as to whether they were not ashamed that two or three 'chaps' belonging to the same village had been beaten. However, he would say in his evidence that he

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 481

A went to Kalaka only ouce on 19.5.1982 and that it was about 9 or 9.30 a.m. There is abundant unimpeachable evidence on the side of the apppellants to show that the respondent, armed with a rifle, visited Kalaka polling sation accompanied by some armed persons at about 11.30 a.m. or 12 noon, and indulged in the polling of bogus vutes. P.W. 7 had stated in the course of his tape recorded conversation with the respondent in the office of P. W 10 at about B 7 or 7 .30 p.m. on 19.5.1982 that he visited Kalaka polling station soon after the respondent had. left that place. R.w. 22 has admitted irt his cross examination in this Court that the statement of P.W. 7 that he was there at about 12 noon or 12.05 p.m. refers to Kalaka polling station and that P.W. 7 told him that the Presiding Officer told him a different story about the c incident which took place in that polling station. It is, there- fore, clear that the ,respondent has attempted to make a futile effort to show that he visited the Kalaka polling station · with R.w. 5 and others only at about 9 or 9.30 a.m. on 19.5.1982 and not at the time of the first part of the incident alleged by the appellants. D

The written statement is silent on the quesion whether the respondent visited Kalaka polling station on 19.5.1982 except a mere denial. The respondent unsuccessfully attempted to file an additional or amended written statement to the effect inter alia that . he had decided not to move out of his house and had not gone out of his house on 19.5.1982. This portion of the additional or amended written statement which had not been received by the Court was put to him in cross examination by Mr. Sibhal. R.w. 22 has stated that there appears. to be a typing error in that statement that he did not move out of his house on that day and that what he meant to say was that as a consequence of the assurance of his supoorters that he was going to succeed he acceded to their wish and had decided not to move out of his house on that day. He would say that he did not read that amended written statemertt and had no sufficient time to read it properly but that he did not give specific instructions to his counsel on that matter and was told by his supporters not to move out of his house on 19.5.198i and that the fact that he went to Kalaka G village on 19.5.1982 is not mentioned in that amended written statement though inspite of deciding not to move out of his house on that day he did go to Kalaka village on that day. This also shows that the evidence of R.w. 22 is not reliable.

In. the election petition it is alleged in relation to the H incident at the Burthal Jat polling station that Anil Kumar and Satbir Singh are the relatives of the respondent. There is no

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

A denial much less any spefic denial of this allegation in the written statement of the respondent though it is a material fact which ought to have been denied specifically if it was not admit- ted. Therefore, under 0.8 r. 5 of the Code of Civil Procedure which applies to proceedings in election petitions it must be deemed to have been admitted by the respondent. Order 8 rule 5 reads:

"Every allegation of fact in the plaint, if not denied specifically or by necessary implication, 0r stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may c in its discretion require any fact so admitted to be proved otherwise than by such admission."

But during the trial R.W. 22 had repeatedly denied that Anil Kumar and Satbir Singh were in any way related to him though in a portion of his evidence he would say that satbir Singh is the adopted son of Jagmal Singh, father of his wife who was divorced D in 1962 and that he does not known if Anil Kumar is the brother of his brother-in-law, Surinder Kunar and he could not deny or admit that he is the brother of his brother-in-law, Surinder Kumar as Surinder Kumar has 6 or 7 brothers. lie has stated that he does not know whether Anil Kumar and Satbir Singh are the two persons who were arrested in Burthal Jat village on 19.5.1982 E for offences under section 107 and 151 of the Code of Criminal Procedure and that he had not exhibited grave concern about Anil Kumar and Satbir Singh in the course of his conversation with P.w. 7 in the office of P.W. 10 at 7 or 7.30 p.m. on 19.5.1982 or told P.W. 7 that they were his relatives. But in his cross examination in this Court he has admitted that Anil Kumar and F Satbir Singh had been arrested by the police at the instance of P.w. 7 at the Burthal Jat polling station on 19.5.1982 and that he ha.d referred to them as his relations only because P.W. 7 had not taken any steps inspite of his repeated representation in regard to the arrest of those two persons. It is not possible to accept the evidence of R.W. 22 that because no steps were taken by P.w. 7 on his repeated requests for the release of Anil Kllllldr and Satbir Singh he told P.W. 7 that they were his close relatives, for he ha.d admitted in his evidence in this Court that he would have left no stone unturned if his partymen and workers were harassed even though they may not be his relatives. It appears from this portion of the evidence of R.W. 22 that it would have been unnecessary for him to claim Anil Kunar and

RAM SINGH v. ~OL. RAM'SINGI! [VARADARAJAN, J.] 483

Satbir Singh to be his close relatives merely to prevent them from being harassed by the police after their arrest on 19.5.1982. He has stated in his evidence in this Court that because he was told by his workers that two of his relatives had been arrested and their identity was not clear to him when he had the conversation with P.W. 7 in the office of P.W. 10 on 19.5.1982 he referred to them in the course of his conversation as his ~elatives. He has also stated that it is only after P.w. 7 mentioned their names and identity that he new that they were Anil Kumar and Satbir Singh and that they were not his relativ-.s. In the subsequent portion of his evidence he has stated that he had never deposed in this Court that P.W. 7 mentioned the name of Anil Kumar to him. In an other portion of his evidence in cross eXlll!lination in his Court he has admitted that the statement in c that conversation that he told P.W. 7 that Anil Kumar and Satbir Singh were his relatives. is correct. Thus, it is seen that R.W. ' 22 has given varying versions on the question whether Anil Kumar and Satbir Singh were his relatives or not though he has admittedly informed P.w. 7 in the course of his conversation with him in the office of p,w. 10 on 19.5.1982 that they were his close relatives. This also shows that the evidence of R.W. 22 is not reliable.

The evidence of the private witnesses eXlll!lined by the appellants to depose about the first part of the incident in the Kalaka polling station is fully corroborated by the evidence of the Presiding Officer (P.W.8) and received ample corroboration from the evidence of P.Ws. 7 and 10. Their evidence is corrobora- ted by the reliable and contemporaneous doctUnehtary evidence by way of Exs. P-5, P-6 and the tape record Ex. P.W.7/1 which are unimpeachable and also by what has been stated by P.w. 7 in his report (Ex.. P-2) submitted by him to the Government some time after the results of the election held in May 1982 were announc- ed. Therefore, I reject the evidence of the respondent and the other witnesses wilo have deposed on his side in regard to this part of the incident in the Kalaka polling station and accept the evidence of p.w. 8 and the other witnesses who have deposed . about the same on the side of the appellants election petitioners and hold that the appellants have proved satisfactorily and beyond reasonable doubt the first part· of the incident in Kalaka polling station, namely that the respondent went armed with a rifle with 25 or 30 companions and entered the polling station with 4 or 5 armed companions and threatened the Presiding Officer (P.w. 8) and others including the polling agents who were present in the polling station with the use of force and got some ballot papers marked in favour of the respondent polled forcibly by his

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

companions in the ballot box and that they left the polling station on seeing the villagers of Kalaka and police personnel coming towards the Kalaka polling station. There is no doubt that there is some discrepancy in the evidence· regarding the time of the :lncident. But it is not a material discrepancy.

I shall now consider the evidence relating to the second pa~t of the incident at the Kalaka polling station.

Mr. Sibbal did not press the case of the appellants regard- ing the second part of the incident at the Kalaka polling station in h.is principal argument but he pressed that portion of the appellants' case after Mr. Rao contended in the course of his argument that what is alleged to have happened inside the polling c station, even if true, will not constitute any corrupt practice but would amount only to an electoral offence. Regarding this part of the case there is the evidence of Tara Chand (P.W. 12), Sheo Chand.(P.w. 13), Puran (P.W. 14), lnder Singh (P.W. 16) and Mangal Singh (P.W. 18), on the side of the appellants. Gur Dial who has been referred to in the election petition in this connec- tion was tendered as P.w. 15 for cross-examination but he has not D been cross-examined by the learned counsel for the respondent. P.W. 12 who was one of the electors and the polling agent of Sumitra Bai in the election with which we are concerned at the Kalaka polling station has stated that when he was arranging the electors to stand in a queue for the purpose of voting, the respondent came there with 60 or 70 persons at about 10.30 a.m., E the respondent armed with a gun while some of his companions were armed with swords, pistols and sticks. The respondent and his companions threatened PWs. 14,15, 17 and others including Kesar Lal wh., had come to the polling station for the purpose of casting their votes and asked them to go away from there and they consequently ran away from the polling station. Amongst the respondent's companions who did so P.W. 12 knows only Desh Raj Krishan Lal and Ram Krishan (R.W. 5) of Kalaka and Balbir Singh, ~.aghubir Singh and Umrao Singh. P.W. 12 has not been seriously examined on this portion of his evidence. What has been elicited in his cross-examination is that he was the polling agent of Congress (I) candidates even in the earlier elections and he had convassed for the Congress (I) candidate in the election with which we are concerned for 5 or 10 days and that he reported to the police after the .completion of the poll bnt the police did not send for anybody on that complaint.

P.W. 13 has stated that when he was standing in the queue awaiting his turn for casting his vote after reaching Kalaka.

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J ·I 485

polling station at about 10 a.m. the respondent came there at about· 10 a.m.· alongwith 50 or 60 persons in two or three vehicles namely, a truck and two motor cycles. The .respondent was armed with a gun while his companions including Desh Raj, Krishan Lal and Ram Krishan (R.w. 5) were armed with swords, rifles and lathis. Lambardar Ishwar (P.W. 16), Puran (P.W. 14), Ram Singh and others were standing in the queue at that time. B The respondent threatened .p.w. 13 and others saying that they cannot cast their votes and he asked them to go away under threat of being beaten and shot, and out of fear P.w. 13 and others who were standing in the queue ran away. It has been elicited in his cross-examination that he came back and cast his vote at 2 p.m. and that he cannot say whether the others who were in the. queue C and had run aw~y had come again or not for castii:ig their votes.

P.w. 14 has stated 'that he had gone to the polling station at about 10 or li a.m. for casting his vote and was standing in the queue alongwith others. The respondent came there armed with a gun, accompanied by 50 or 60 persons including Desh Raj , D Krishan Lal, Balbir-Singh, Ram Krishan (R.w. 5) and a Sikharmed with a kirpan:. The respondent's companions created a commotion and the respondent threatened P.w. 17· and others who were in the queue to run away on pain of being killed otherwise and out of fear all the persons who were in the queue ran away. In his cross-examin4tion he has stated that about 15 or 20 persons were standing in ·the queue when the respondent and his companions E arrived at the polling station and that he cast his vote later at about 3 p.m. after Calm prevailed all around. He has denied the suggestion that he had given false evidence being a Congress (I) worker.

Ishwar Singh (P.w. 16) the Lambardar of Kalaka village has ·F stated that when he was standing in the queue along with 14 or 15 persons at about 10 or 10.30 a.m. awaiting his turn for casting his vote the respondent came there, accompariied by 3 or 4 persons including Desh Raj and Krishan Lal (R.w. 6) of his village and threatened to kill him and he was hit with the butt of a gun by one of the companions of the respondent and. he ran away. He has. G also stated t.hat P.Ws. 13,14,15 and 17 were also standing in the queue alongwith him and that after he informed the people of the village that the respondent had come and threatened him the people of the village collected and came towards ·the polling station whereupon respondent and his companions ran away leaving behind two motor-cycles by which respondent's companions had come H there. There is abundant evidence on the side of the appellants,

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

A referred to above, to show that when P.w. 7 and other officials arrived after the incident in and at the Kalaka polling station they folllld two motor-cycles abandoned at that place. P.W. 16 has denied the suggestion that he has deposed falsely being the supporter of the Congress (I) party.

B P. W. 18 has stated that when he was inside Kalaka polling station and his particulars were being checked before he could be allowed to vote the respondent came there and that 20 or 25 persons were standing in the queue ran away. He has admitted in his cross-examination that he had canvassed for the Congress (I) party but has denied the suggestion that he has always been helping the Congress (I) candidates and has given false evidence c on accotmt of that reason.

This is all the oral evidence on the side of the appellants regarding the respondent threatening electors who were standing in the queue at the Kalaka polling station awaiting their turn for casting their votes in the morning on 19.5.1982 and scaring the:n away under threat of violence against their person and thereby preventing them from exercising their electoral dght. The evidence on the side of the respondent has been ref erred to above in the discussion relating to the first part of the incident at the Kalaka polling station and has been foWld to be not reliable. It has been found earlier that the evidence of R.W. 22 and his witnesses that R.W. 22 went to Kalaka polling station by a c.ar with some of his men only at about 9 or 9.30 a.m. on 19.5.1982 could not be accpeted and that the respondent had recelved information at about 10.30 a.m. about some Congress (J) workers having been beaten by Congress (I) workers in Kalaka, which message had been flashed by the police wireless and received by P.W. 7 and he went there only thereafter. There is unimpeachable evidence on the sl.de of the appellants to show that when the respondent went inside Kalaka polling station he was in a rage. In these circumstances, it is probable that while in such a mood after receipt of some report that his workers were beaten by Congress (I) workers he went there and asked his men whether they were not ashamed about 2 or 3 of their men of the same village having been beaten and ·that he therea_tter indulged in the acts alleged in the election petltion both outside and inside the polling station at Kalaka. P. W. l who reached Kalaka polling station soon thereafter received oral report about the detention of a motor cycle belonging to Congress (JJ workers. In these circumstances, l accept the evidence of PWs· 121 l3, lb and H 18 referred to above and find· that the respondent came to the

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J • ] 487

Kalaka polling station at about 10.30 a.m. on 19.5.1982, armed ·A with a rifle and accompanied by his companions some of whom "ere armed with deadly weapons and that he threatened the electors who were standig in the queue awaiting their turn for casting their votes on account of which they ran away and he had thus interf er- ed with the exercise of the electoral right of those persons. There is some discrepancy in the evidence about the time of B arrival of the respondent and his men. It is not a material discrepancy.

About the incident at Burthal Jat polling station there i• the evidence of P.Ws. 7, 9 and 10 who are official witnesses and of Nahabir Singh (P.w. 26), Dharam Vir (P.w. 27), Thavar Singh c (P.W. 28), Amir ChaDd (P.W. 29), Surjit Singh (P.W. 30), Raghubir Singh (P.w. 31), Shamsher Singh (P.w. 32), Kishori Lal (P.w. 33), Ram Narain (P,W. 34) and Mam Chand (P.W. 35) on the side of the appellants. There is evidence of Ravi Datt Sharma (R.w. 11), Parbhati (R.W. 12), Ami Lal (R.w. 13), Sheo Chand (R.w. 14) and the respondent (R.w. 22) on the side of the r~spondent. · D

p.w. 26 of Burthal Jat village was the polling agent of the respondent himself and he had filed the form (Ex. P-16) dated 18.5.1982 for the same. He has stated in his evidence that he had gone to the polling station at 7 a.m. and had not seen any incident at that place. It is clear that p.w. 26 was not prepared to go the whole hog to support the case of the appel- E lants as regards the incident at the Burthal Jat polling station but he has stated in his cross-t!Xalllination that when he went to the polling station he saw Anil Kumar and Satbir Singh canvassing votes ior their candidate and that he also saw a jeep with sticks. The learned trial Judge has stated in his judgment that though the evidence establishes that Anil Kumar and Satbir Singh F were canvassing votes for their candidate it is not known from the evidence as to who their' candidate was. But it is clear from the evidence referred to already showing the concern of the respondent for Anil Kumar and Satbir Singh who had been arrested by the police at the Burthal Jat polling station that the candidate for whom they were canvassing could not have been any other than the respondent. p.w. 26 has admitted in his cross- examination that Satbir Singh was known to him previously and that he (P.W. 26) was on duty inside the polling station.

P.W. 27 of Burthal Jat village has stated in his evidence that he bad gone to Burthal Jat polling station at 8 a.m. for casting his vote in the election held in May, 1982. The

488 SUi>REME COURT REPORTS [1985] SUPP.2 s.c.R.

A respondent came there at about 8 a.m. accompanied by 50 or 60 persons anrl told his polling agents, Mahabir and Udhey Bhan that he was leaving some persons behind and he asked them to see that no one is permitted to vote for the Congress (I) candidate and that they should ensure to have maximum votes polled in his favour in that polling station. The respondent left behind 15 or B 16 persons including Anil Kumar and Satbir Singh, .one of them a Sikh armed with a sword and the others with pistol and sticks and the C•ther persons who came with the respondent went away with him. In his cross-examination he has stated that the reapondent came to Burthal Jat polling station in a car while his companions came by a motor-cycle, a jeep and a truck. No doubt he is unable to mention the numbers or colour of the vehicles or the colour of c the turban of the respondent's Sikh companion and he has stated that he cannot identity Satbir Singh. He has denied the suggestion that he is a supporter of Rao Birendra Singh and his sister and that the respondent did not come to Burthal Jat polling station at all on that day.

P.w. 28 who belongs to Burthal Jat village has stated in his evidence that after he went to the polling station the respondent came there accompanied 50 or 60 persons at . about 8 a.m, The respondent was armed with a small gun while nis companions were armed with rifles, ballas and sticks. The respondent called his polling agents Mahabir and Udhey Bhan and told ·them that they should not permit even a single vote to be cast in favour of the Congress (I) candidate and he was leaving behind Anil Kumar and Satbir Singh alongwith 15 or 20 persons for their help. The other people left behind by the respondent were armed with lathis. He has admitted in his cross-examination that he was the polling agent of Sumitra Devi but he has denied the suggestion that.the respondent did not go to the polling station at all on that day and that he has given false evidence.

P. W. 29 who belongs to Burthal Jat village has stated in his evidence that he went to the polling station at about 8 a.m. for casting his vote in the election with which we are concerned. The respondent accompanied by 50 or 60 persons came there at about B a.m. and sent for his polling agents Mahabir and Udhey Bhan and told them they should not permit anyone to vote in favour of the Congress (I) candidate. PWs. 27 and 28 and many other persons were present when the respondent said so. The respondent told Mahabir and Udhey Bhan that he was leaving behind Anil Kumar and Satbir Singh for their help alongwith 15 or 20 H per•cns who were found by P.W. 29 to be armed with sticks. P.W.

RAM SINGH ·1. COL. RAM SINGH [VARADARAJAN, J. j 489

29 was not permitted to cilst his vote earlier and he. therefore, A came again and cast his vote at 3 p.m. He has stated in his cross-examination that he returned to his .house after 8 a.m. out of fear and went back to the polling station at 3 p.m. ·for casting his vote and stayed there till the afternoon. He has denied the suggestion that the respondent did not visit Burthal Jat polling station on that day. B

p.w. 30 who belongs to Burthal Jat village has stated in his evidence that he started to go to the polling station at about 10.30 a.m. for casting his vote in the election with which we are concerned. When he emerged from his village tn proceed to the polling station for casting his vote Anil Kumar and Satbir c Singh met him and asked him as to whom he intended to.cast his vote and they insisted that he should vote for the respondent. On his refusal to do so Anil Kumar and Satbir Singh threatened p.w. 30 when 2 or 3 persons armed with sticks were present with those two persons and he therefore returned to his house. He went to the polling station ai: about 3.30 p.m. for casdng his vote and learnt that Anil Kumar and Satbir Singh had be~n arrested by the police. He has stated in his cross-examination that he does.not know to which place Anil Kumar and Satbir Singh belong and thi>t when he came to the polling station later at about ·3 p.m. he was told that those two persons were Anil Kumar and Satbir· Singh. He has denied the suggestion that he had been a supporter of Rao· Birendra Singh in a~l the elections and that he has given false evidence.

P.w. 31 who belongs to Burthsl Jat village has stated in his evidence that when he went to the polling station at il a.m. for casting his vote in the election with which we are concerned he was accosted by Anil Kumar and Satbii Singh who were present there alongwith 20 or 30 persons armed with sticks about 25 yarqs away frO!ll the boundary of the polling station and they asked him as to the person for whom he was going to cast his vote and they insisted that he should vote for the respondent and threatened him when he replied that he would vote for the candidate of his own choice. In. view of the threat he went back to the village and came later for casting his vote at about 3. p.m. and learnt that Anil Kumar and Satbir sir.gh had been taken into custody by the police. He has admitted in his cross,-examination that he did not complain to anybody about the threat but he has denied the suggestion that µe has given false evidence. H P.W. 32 is the Sarpanch of Burhtal Jat village. He was admittedly the polling agent of Sumitra Devi. He has stated in

490 SUPREME COURT REPORTS [1985] SUPP.2 S.<::.R.

A his evidence that he went to Burthal Jat polling station for the second time at 2.30 p.m. When he approached the main gate of the polling station he met Anil Kumar and Satbir Singh and they asked him to support the respondent and when he told them that it was open to him to vote for the candidate of hJ.s own choice there was an altercation and they started beating him and he was rescued by B P.Ws. 33, 35 and others of his village. Meanwhile, an Assistant Sub-Inspector of police came there by jeep and they hurled abuses at him even in the presence of the Assistant Sub-Inspector of police and thereupon that police officer arrested Anil Kumar and Satbir Singh. He saw a jeep containing sticks parkeG there, and the people who were in the jeep ran away when the police arrived. He brought these facts to the notice of P.Ws. 7 and 10 when they c came there and they took the jeep and the sticks into their custody. Anil Kumar was sitting on the motor-cycle while Satbir Singh was standing on the road-side when they confronted him as stated above and their motor-cycle was taken into custody by the police. In his cross-exaination it has been elicited that he did not report in writing to P.Ws. 7 and 10 or get himself medically examined or file any complaint in any Court against Anil Kumar D and Satbir Singh. He has denied the suggestion that he had strained relations with Satbir Singh because of his election to a cooperative society and that he has given false evidence because he was the (>')lling agent of Sumitra Devi.

p.w. 33 who is the chowkidar of Burthal Jat village has E stated in his evidence that when he went to the polling station at about 2.30 or 3 p.m. during the last election to the Haryana Legislative Assembly he saw Anil Kumar and Satbir Singh abusing and beating P.W. 32. P.w. 33 and Lambardar Mam Chand (P.W. 35) and another Lambardar Ram Singh and others of.Burthal Jat village separated P.w. 32 from Anil Kumar and Satbir Singh. Meanwhile, an F Assistant Sub-Inspector of police came there, and about 10 or 15 other per.sons who were with Anil Kumar and Satbir Singh ran away on seei.ng the police after leaving behind a jeep and a motor- cycle which were taken into custody by the police. P.W. 32 informed P.Ws. 7 and 10 about what happened when they came there some tlme later. In his cross-examination he has denied that P.W. G 32 was not present at all at the Burthal Jat polling station but was in his village at the time of the poll. He has denied that he was appointed as Chowkidar by P.W. 32 and has stated that he is Chowkidar of the village since 1982 and that P.W. 32 became Sarpanch of Burthal Jat village only recently. He has denied the suggestion that no incident at all took place in the village and H that he had given false evidence under the influence of P.W. 32.

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 491

' p.w. 34, the Lambardar of Kakoria village situate close to A Burthal Jat village, has stated in his evidence that he went to Burthal Jat polling station.at about 2.30 or 3 p.m. for casting his vote in the last election to the Haryana Legislative Assembly and saw Anil Kumar and Satbir Singh slapping and fisting P,W. 32. He and P.w. 35 and others intervened and separated them. Some time thereafter a Sub-Inspector of police came and saw Anil Kumar B and Satbir Singh exchanging abuses with P.w. 32 and he arrested those two persons. P. Ws. 7 and 10 who came there later talked with Anil Kumar and Satbir Singh. The police took a motor-cycle and a jeep which was with Anil Kumar and Satbir Singh into their custody. In his cross-examination he has stated that he had not meet Anil Kumar and Satbir Singh previously and that he does not ·C know the numbers of the jeep and the motor cycle. He has denied the suggestion that he had supported Rao Birendra Singh in the election to Parliament in 1980 and did not go to Burthal Jat village at all during the election in question and has deposed falsely under the influence uf the appellants.

PW 35 aon of Umrao Singh and Lambardar of l!urthal Jat village was the polling agent of the Bhartiya Janata Party candi- date in the last election of the Haryana Legislative Assembly. He has stated that after he reachea Burthal Jat polling station at 7 a.m. the respondent came there at about 8 a.m. accompanied by 50 or 60 persons and called his polling agents and told them that they should see to it that the Congress (I) candidate does not get votes and he added that he was leaving Anil Kumar and Satbir Singh and 15 other persons for their help. At about 2.30 p.m. PW 35 saw Anil Kumar and Satbir Singh beating PW 32 of his village and thereupon he and PWs. 33 and 34 separated them. Meanwhile, an Assistant Sub-Inspector of police took Anil Kumar and Satbir Singh into custody, and 10 or 15 persons who were left behind by the respondent fled on seeing the police leaving behind a motor- cycle and a jeep containing sticks and other weapons. PWs. 7 and 10 came there some time later and the motov-cycle and the jeep were taken into custody by the police. In his cross-examination he has denied that Ex.P-9 to which reference would be made a little later contains his signature and he has stated that there are two other persons of his name and one of them is the son of Umrao Singh. He has further stated in his cross-examination that the respondent told Anil Kumar and Satbir Singh that they should see to it that no other candidate except himaelf gets votes in that polling station. He has denied that he had made a false statement before PWs 7 and 10 and that he has given false evidence being a member of the opposite faction.

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

A The Deputy Commissioner and Di.strict Election Officer (PW. 7) has stated in W.s evidence that on th~ day of poll he proceeded from l'-alaka polling stat.ion to Burhtal Jat polling stati.on pursuant to the receipt of a complaint that a Congress(J) worker was attacked by the villagers of Burthal Jat. The polling officer of Burthal Jat polUng station told W.m when he visH.ed that ll place that nothing had hapjlened inside the polling station but some of the officers in the polling station told him that there was some incidents outside the polling station though they were not sure about the identity of the persons responsible for the same. Some villageo told PW 7 that Congress. (J) workers had come in a jeep and tried to create trouble and that one of them ran away whlle the police had detained two of those persons. PW 7 C interrogated those two persons and they then told him that they had nothing to do with the jeep whose number he has recorded i.n the tape Ex.PW 7 /1. PW 7 found some stl.cks ln the jeep and he asked the police to take the jeep and the st.i.cks into their cus- tody. Anil Kumar and Satbir SJ.ngh who had been attacked by the villagers were found detained by the police. The Sarpanch of llurthal Jat village (PW 32) made a complai.nt to him outside the D Burt11al Jat polling station. PW 7 recorded the conversation which he had with the Presiding Officer at the Burthal Jat polling station but some portion thereof was erased by his own voice by inadvertence. The respondent met PW 7 at about 7 p.m. in the office of PW 10 and informed PW 7 about some incidents which had taken place during the day and complaJned to W.m about them. Th"- E conversation which he had with the respondent at that tlme was recorded simultaneously in the tape (Ex. PW 7 /1) and he later reported to the Secretary to the Government about the complaint which the respondent made to him against the Superintendent of Police. His stenographer prepared the transcript Ex.P-1 in his office, most of it under his supervision and he was temporarily F absent to attend to some other work, and he compared it with the original tape and found it to be correct. The tape, tape-recorder and transcript remained with him throughout and were not deposi- ted by him in the record room and there was no possibility of tampering. He had not created evidence in the form of the tape at the instance of Rao Birendra Singh to har.m the respondent. Ex.P-2 G is the- copy of the report which he submitted about the incidents which took place on 19.5.1982 as had come to his notice. In his report Ex.P-2 eent to the Secretary to the Government·, PW 7 has stated inter alia that when he went to Burthal Jat polling station from Kalaka polling station he was told that a few workers of the Congress (J) candidate had been detained by the villagers and he had conversat.lon with the Presiding Officer and

RAM SING!! v. COL. RAM SING!! [VARADARAJAN, J.] 493

the villagers and found a jeep with about 15 or ZIJ lathis in it and directed the police to take the jeep with the lathis as also the two workers of the Congress (J) candidate who were standing near the jeep into custody.

The Returning Officer and Sub-Divisional Officer, Rewari (PW 10) who went to Burthal Jat polling station along with PW 7 B has stated in his evidence that .he saw Anil Kumar and Satbir Singh surrounded by the people of that village and a jeep containing some sticks parked there and that Anil Kumar and Satbir Singh and the jeep were taken into custody by the police under the orders of PW 7. He.has further stated that Ex.P-9 was handed over to him by one Mam Chand of liurthal Jat village on that day. As stated earlier PW 35 who is Mam Chand son of Umrao c Singh of Burthal Jat village has disowned Ex.P-9. In his cross- examination PW 10 has denied that he had discriminated between the candidates while disposing of the complaints about Kalaka and Burthal Jat polling stations. t:x.P-9 addressed by Mam Chand to PW 10 is to the effect that the respondent pointed .out ris gun at D the Presiding Officer and other persons in Burthal Jat polling station after he came there at about 1.30 p.m. along with 65 or 70 persons and he ordered for the ballot papers being marked with the simbol of scales. and put into ballot boxes and to finish off anybody who interferes and that the whole village was terrorised and they were thereby prevented from exercising their electoral right. There is no specific reference in this report to Atlil E Kumar and 5atbir Singh or to their arrest by i:he police at the instance of PW 7. Ex.P-9 which was found in the file summoned from the office of the Sub-Divisional Officer, Rewari had been marked only through PW 10 and has been disowned by PW 35 who is no doubt Mam Chand son of Umrao Singh. For want of proof Ex.P-9 could not be taken into consideration, . but the learned Trial F Judge has relied very heavily upon that document for disbelieving the appellants' case regarding the incident at Burthal Jat poll- ing station. lie was not justified in doing so.

The Assisfant Sub-Inspector of police (PW 9) who had been posted at . 5adar Rewari police station has stated in his evidence that at the instance of. Assistant Sub-Inspector Jagan Nath who G returned to the police station at 3.30 p.m. on. 19.5.1982 he recorded a Daily Diary Report of which Ex.P-8 is a copy and that Ex.P-8 is a correct copy of the original report. It is mentioned in Ex.P-8 that Anil Kumar and Satbir Singh of Kutubpur and Dulana respectively were abusing and beating Sarpanch Shamsher H Singh (PW 32) whereupon an Assistant Sub-Inspector of police

494 SUPPEME comcr REPORTS [1985] SUPP.2 s.c.R.

along with other intervened and separated them, that Anil Kumar A and Satbir Singh were creating a situation of breach of peace and were therefore taken into police custody and that the jeep bearing registration number DEI>-3203 was also taken into police cust•ody. PW 9 has not been cross-examined regarding Ex.P-8. Ex.F·-28 is a copy of the judgment in the case registered in the con.cerned FIR No.104 of 1982 dated 19.5.1982 under sections 107 B and 151 of Code of Criminal Procedure against Anil Kumar and Satbir Singh. It is seen from that judgment that the Magistrate after considering the circumstances of the case and hearing Anil Kumar and Satbir Singh had come to the conclusion that the fight took place between those two accused and the Sarpanch Shamsher Singh in connection with polling of votes and that the incident pursuant to which the fight took place was over and the accused c persons belonged to different villages and there is no likelihood of breach of the peace and therefore there is no necessity to take any further action against them and he accordingly discharg- ed them. Ex.P-27 is a certified copy of the calender dated 19.5.1982 relating to that criminal case registered by the police. Exs.P-27 and P-28 were tendered by the learned counsel who appeared for the respondent in the trial court. That calender contains allegations to the effect that the Assistant Sub-Inspec- tor of police with the help of Kalyan Singh separated PW 32 from Anil Kumar and Satbir Singh and stopped the fighting, that the complaint of PW 32 was that when he was going to cast his vote two persons riding on a motor-cycle came there and asked him to • vote in favour of the responder.t, that when he told them that he le would cast his vote for the candidate of his own choice they assaulted him with danda and gave him slaps, and that during the ! investigation the Assistant Sub-Inspector of police found that those two persons were present there for procuring votes for the respondent. It was not disputed by Mr. Rao in this Court that though the complaint on the basis of which FIR No. 104 of 1982 F had been registered may not be admissible in evidence in the absence of any foundation for letting in secondary evidence FIR No. 104 of 1982 registered by PW 9 would be admissible in evidence. It shows that on the complaint to the effect that Anil Kumar and Satbir Singh were abusing and beating PW 32 and they were separated from PW 32 by and Assistant Sub-Inspector of G police and others a case under sections 107 and 151 of the Code of Criniinal Procedure was registered against them and a jeep bearing number DED-3203 was also taken into custody by the police on 19.5.1982, and it is admissible in evidence. The FIR corrobo- rates the evidence of PW 32 and of some of the other witnesses , referred to above who have deposed about thts incident. H

RAM SINGH v. COL. RAM SINGH lVARAllARA..JAN, J, J 495

On the other hand, RW 11 a lecturer in a Higher Secondary A School at Rewari who was a polling office at Burthal Jat polling station during the election with wl:u.ch we are concerned has stated in his evidence that no untoward incident of any type took place and that the respondent did not visit that polling station on that day. In view of the documentary evidence and the other oral evidence ref erred to above which show that on incident did B take place outside Burthal Jat polling station and that a jeep containing some lathis ·as also 'Anil Kumar and Satbir Singh were taken into custody and those two persons were prosecuted in a case registered against them under section 107 and 151 of the Code of Criminal Procedure it is not possible· to accept the evidence of RW 11 that no incident took place and that the res- C pondent did not go to Burthal Jat polling station at all on 19.5.1982. It must also be noted that RW 11 has admitted in his cross-examination that he could not have known what happened outside the polling station because be was inside. RW 12 who cast his vote in Burthal Jat polling station at 8 a.m. claims to have remained at the polling station till about 1.30 or 2 p.m. and he has stated that neither the respondent nor anyone. on his behalf came to the polling station and there was no quarrel inside or near the polling station so :ong as he remained there. But in his examination-in-chief itself he has admitted that PW 32 was stan- ding about ~O kadams away from the polling station with some people and he heard some altercation between them and that while the altercation was going on some poi.ice personnel arrived at the spot and removed two persons who were not known to him. He has further stated in his cross-eXamination that there was a jeep at some distance away from where the Sarpanch (PW 32) and the other persons had altercation, He has no doubt denied the suggestion that lU or 15 other persons were with those two unknown persons and they were armed with sticks, that the respondent came there and left those 15 or 20 persons along with those ·two unknown persons and that t~1cse two unknown persons threatened many people as a result of which they could not cast their votes. ,RW 13 who went to Burthal Jat polling station at about 10.45 a.m. for casting his vote and cast his vote at that time claims to have stayed there along with some villagers until about 4 p.m. Though G he has stated in a portion of his examinatioi1-i11-chief that no incident took place with in or outside the polling -station so long as he remained there he had admitted in his examination-in-chief itself that he saw PW 32 having a dispute with two unknown persons about 120 kadams away as also a jeep parked 80 kadams away from the polling station and that he heard H people saying that the Superindent of Police removed these two

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

A unknown persons. No doubt, he has denied that Anil Kumar and Satbir Singh were threatening the electors in the village and that he has given false evidence on account of. pressure from the respondent. RW 14 who cast his vote at Burthal Jat polling station at 7.30 a.m. claims to have thereafter set under a tree by the road-side about half a furlong away from the polling B station. He has stated that he did not see the respondent passing by that road in the direction of Burthal Jat village. His evidence is not helpful to either of the parties as he has merely stated that he had not seen the respondent passing by that road in the direction of Burthal Jat village. It is not possible that he would have closely looked into each and every vehicle which passed by.that road to notice the respondent who appears to have c been moving on that day by his car. RW 22 has stated that he did not go to Burthal Jat village or send anyone of his workers to that.village on 19.5.1982 but he remained in his house throughout aft<!r he returned from kalaka on that day. It is not possible to acce~pt his evidence that he had not sent any of his workers to Burthal Jat village on the date of poll as i t is unlikely that the candidate contesting in th.e election would not have sent any of his workers to that polling station. It is seen from the aforesaid tape-recorded conversation be.tween PW 7 and RW 22 in the office of PW 10 at about 7 or 7.30 p.m. on 19.5.1982 that the respondent expressed his anxiety to get his relatives Anil Kumar and Satbir Singh who had been arrested on that day by the police released and that his evidence that Anil Kumar and Satbir S.ingh were not his relatives at all is totally unreliable for reasons mentioned above in the discussion of the evidence relating to the incident at Kalaka polling station. The evidence of R.W. 22 as a whole is wireliable for the reasons already mentioned above.

Mr. Si bbal did not reply upon any portion of the tape relating to the conver~ation in liurthal Jat polling station but he has relied for ~he purpose of the appellants' case in relation to Hurthal Jat polling station upon that portion of the tape which relates to the conversation between P.W. 7 and R.W. 22.in the office of P.W. 10 at about 7 or 7.30 p.m. on 19.5.1982. The fact that a portion of the tape-recorded conversation in Burthal Jat polling.station got erased by P.W.7's own :Voice due to inadvertence is no reason for rejecting the remaining portion of the tape. It was demonstrated .in this Court that the tape-recor- der has only one knob for operating the recorder for three purposes, namely, recording, playing and rewinding. If by mistake the knob is pushed for rewinding and thereafter for recording at a particular point it is probable that what had been

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 497

recorded earlier gets erased by the time the mistake in operating the knob is noticed. Therefore, there is no reason to reject the evidence of P.W.7 that a portion of the tape-recorded conversa- tion in liurthal Jat polling station got erased by his own voice due to inadvertence.

The oral and docwnentary evidence regarding the incident at B Burthal Jat polling station let in by the appellants receives corroboration to a certain extent from the evidence of some of the respondent's own witnesses. As stated earlier, R.W. l? has admitted that P.w. 32 who was standing about 80 kadams away from the polling statlon was having an altercation with some people and that even when the altercation was going on some police c personnel arrived there arid they tock into custody two persons and there was ,also a jeep at some distance away from the place where P.w. 32 and others were having an altercation. Even R.W. 13 has stated that P.w. 32 was having a dispute with two unknown persona about 120 kadams away from the polling station and soon thereafter he heard people saying that the Superintendent of D Police took away those two unknown persons. The nsmes of Anil Kumar and Satbir Singh had been specifically and clearly mentioned in the election petition in regard to the incident at the Burthal Jat polling station and they have been alleged to be the relatives of the respondent. The respondent has not speci- fically denied the said allegation in his written statement but during the trial he attempted to make it appear that they were not related to him. However, it has been found above that they are related to him. Still the respondent who had shown his serious concern to get them released from police custody on 19•5.1982 has not called those two persons as his witnesses to rebutt the case of the appell8.nts. Therefore, as observed in Cheima lleddy v. R.C.Rao (supra) in these circumstances an adverse inference has to be drawn against the respondent who has not called those two persons as his witnesses though their evidence should be.available to him in support of his contention regarding the incident at Burthal Jat polling station. Therefore, I accept the ·oral and documentary evidence let in by the appellants as referred to above as being reliable and reject the evidence of the respondent and his witne$ses in regard to the incident at l:Surthal Jat polling station and find that at the .instance of the respondent his relatives Anil Kumar and Satbir Singh who were left behind by him along with 15 or 20 persons with a jeep containing sticks interfered with the exercise of the electoral right of P.W. 32 and others as alleged in the election petition H ' as· a result of which they had to go away from the queue in which

498 SUPREME GUUKf llliRUKfS [1985] SUPP.2 s.c.R.

A they were standing awaiting their turn for casting their votes though they had subsequently come to the polling station and cast their votes.

Now l sha'll consider the respondent 1 s contention raised in the written statement that the allegatlon that the respondent and som~ of his armed companions entered the polling station and br.::i11dished their guns at the Presiding Officer and ordered the .it 11.=r polling staff and polling agents of various candidates to stand still does not constitute any corrupt practice and t.hat the allegat:lon that the polling agents Amae Stngh and Sueaj llhan weee thr1~atened and turned out of the polling station does not consti- tute corrupt practice as they are not alleged to be electors of Kalaka village. Mr. Rao submitted that these acts, even if proved, would amount to only electoral offences under section 136 (b) (f) and (g) eead with section 8 and would not constitute coeeupt peactice undee section 123(2) read with section 79(d) of the Act. In support ·of his contention Mr. Rao invited this Court 1 s attention to the decision in Nagendra Mahto v. 1be State (supra) wheee i t has been held, as stated eadiee, that the criminal revision petitioner before the High Court who had insis- ted upon going into the room where the ballot papers were kept though the Peesiding Officee had warned him to go out of the coom and also attempted to put some ballot papers into the box of one Nitai Singh Saedae was cightly convicted undee section 131 (1) (b) and section 136 (1) (f) of. the Act. On the othee h~nd, Mr. E Sibbal SJbmitted that casting bogus votes foecibly would amount to corr11pt practice as it would indirectly interfere with the electoral right of the voters whose ballot papers have been so polled, whethee they had intended to come to the polling station and exercise their right to vote or had intended otherwise. In this connection, he invited this Court's attention the decision in Ram Dial v. Sant Lal and Otliers (supra) wheee,. as extracted above, thls Court has held that while the law in England laid emphasis on the usual aspect of the exe.rcise of undue influence, under the Indian law what is material was not the actual effect produced but the doing of such acts as were calculated to inter- fere with the free exercise of any electoral right. According to section 79(d) of the Act 'electoeal eight' means the eight of a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate, or to vote or refrain fr.om voting at an election. Sec~ion 123 (2) of the Act lays down that "undue influence, that is to say, any direct or indirect inter- ference or attempt to inter.fere on the part of the candidate or H

RAM SINGH v. COL. RAM SINGH [VARADARAJAN, J.] 499

his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any A electoral right ••••••. shall be deemed to be corrupt practice for the purpose of the Act."

What constitute electoral of fences are detailed in sections 125 to 136 which fall under Chapter Ill of the Act. s.12s·relates to promoting enmity between classes in connection with election. B S.126 relates to prohibition of public meetings on the day preceding the election day and on the election day. S.127 relates to disturbances at election meetings. S.127A relate.s to restric- tions on the printing of pamphlets, posters etc. S.128 relates to maintenance of secrecy of voting. s.129 relates to prohibition of Officers etc., at elections acting for candidates or to influence voting. s.130 relates to prohibition of canvassing in or near polling stations. s.131 provides for penalty for disorderly conduct in or near polling stations. S.132 provides for penalty for misconduct at the polling station. s.133 provides for penalty for 'illegal hiring or. procuring of conveyances at elections. S .134 relates to breaches bf official duty in connection with elections.' s.134A prohibits Government servants from acting as election agent, polling agent or counting agent. S.135 relates to removal of ballot papers from polling station. S.136 relates to other offences and p_enalties therefore, namely, fradulent deface- meet or fradulent destruction of any nomination paper; fradulent defacement, destruction or removal of any list, notice or other document affixed by or under the authority of the returning officer; fradulent defacement or fradulent destruction of any ballot paper or the official mark of any ballot paper or any declaration of identity o.r official .envelope used in connection with voting by postal ballot; supply of any ballot paper to any person or being in possession of any ballot paper without due authority, fradulently putting into any ballot box anything other than the ballot paper which the person putting the same is authorised to put in; destroying, opening or oth~rwise interfer- ing with any ballot paper; and fradulently or without due autho- rity attempting to do any of the foregoing acts or wilfully aid- ing and abetting the doing of any such acts. It would appear that forcible marking of ballot papers removed from polling officers in the polling station, marking the same in favour of any candidate and putting the them in the ballot box is not one of the offences mentioned in them. Therefore, as rightly submitted by Mr. Sibbal it cannot be contended that in this country forcible polling of bogus votes, as mentioned above, is neither a corrupt practice nor an electoral offence. I agree with Mr. H

500 SUPllliME COURT REPORTS [1985] SUPP.2 s.c.R.

A Sibbal and hold that forcible polling of bogus votes. in the circlUilStances and manner found in this case would constitute indirect interference with the electoral right of the concerned electors whether they be persons who had decided to cast their votes in that election or those who had decided not to do so. It is significant, in this connection, to note that after having B been infonned about the forcible polling of bogus votes by the respondent's Iilen at the Kalaka polling station P.w. 7 had instructed the polling staff to issue tendered ballot papers to any elector whose ballot paper had already been forcibly polled who might come for the purpose of exercising his right.

I have referred to and discussed the evidence somewhat in c detai.1 in view of the fact that I have disagreed not only with the learned Trial Judge but also with respect with my learned brother Fazal Ali, J. with whom my learned brother Mukharji, J. has agree. The respondent in this case had managed to keep away from the Court material evidence by way of the original report of the Presiding Officer, a copy of which is contained in Ex.P-6, by filing c.M.P.31 (E) of 1983 in the trial Court. He had cited the D Observer (R.w. 20) as his witness to depose about his case regarding the allegations made by the appellants in paras 9 to 12 of the election petition regarding the corrupt practices. But he did not examine R.W. 20 for that purpose and had called him only for ttle purpose of production of some record without any oath being administered to him though . in his tape-recorded E conversation with P.w. 7 in the office of p.w. 10 on 19.5.1982 referred to above, he had admittedly asked P.W. 7 to get ever- thing noted by P .w. 20 who was present there at that time. He had thus denied to the appellants the opportunity to cross- examine R.W. 20. The respondent had come forward with a new case of alleged booth-capturing and forcible polling of bogus votes by F Ajit Singh in the Kalaka polling station after the appellants had completed the examination of their witnesses to whom no such sugge:stion was made in the cross-examination. He had repeatedly denied in his evidence that Anil Kumar and Satbir Singh who had been arrested by the police at the Burthal Jat polling station on 19.5.1982 were his relatives though in his tape-recorded conver- G sation referr.ed to above he had infonned P. W. 7 that they were his close relatives and he had shown his anxiety to get them released from police custody forthwith. He had neither cited them nor called them as his witnesses though they would have been material witnesses in regard to the incident at the Burthal Jat polling station. The respondent's evidence as R.W • 22 has been found to be ·wholly unreliable for reasons already mentioned. In

RAM SINGH v. COL. RAM SINGH [SABYASACHI MUKHARJI, J.] 501

these circumstances what my learned brother Fazal Ali, · J • has mentioned in the first para of his judgment barring the first sentence in that para would apply to the respondent alone. An election petition seeking a declaration that the election of the returned candidate is void under section 100 (l)(b) on account of corrupt practice as per section 132(2) of the Act, as in the present case, is a civil proceeding though the standard or degree of proof required is as in a criminal case. In any case, two views are not possible in the present case where the appellants have proved beyond all reasonable doubt that the respondent has committed the corrupt practices alleged in at the Kalaka and Burthal Jat. polling stations. No lenient view can be taken in this case merely because the election petition is directed c against. the returned candidate for', only in the case of a returned candidate Parliament has provicled, in the interest of purity in elections, for serious consequences of not only (1) declaring the election void under section 100 (1) · ())) but also (2) disqualification under section 8A of the Act by the President . for a period not exceeding six years when a finding of corrupt D practice is recorded against a returned candidate. For all the reasons mentioned above I hold that the appellants have succeeded in ~roving the two instances of corrupt practice pressed in this Court and are entitled to succeed in this appeal. The appeal is accordingly allowed with costs of Rs.5,000 payable by the respondent-returned candidate. E SABYASAQ!I MIJKllAll.JI, J. Having had the advantage of reading the judgment of my learned brother Fazal Ali,J., I agree with the reasoning and the conclusions arrived at by my learned brother. I would, .however, like to express my views on following four points involved in the appeal: firstly, this being appeal under section 116A of the Representation of the People Act, 1951 which is in the nature of first appeal to this Court, how should the appraisement of evidence by the trial Court be reviewed by this Court in t)lis appeal, secondly, subject to what safeguards the tape-recorded evidence should be accepted, thirdly, this being election petition involvlng corX'upt practice, the nature of evidence required to proved by a contesting party in order to succeed, and fourthly, whether bogus votes or booth capturing itself is a corrupt practice because it depri.ves other genuine voters in general of the right to vote or the right to abstain from voting.

In this case, evidence of tape-recording made by the Deputy H Commissioner, Shri Bhaskaran was produced before the High ·eourt. In this tape-recorded evidence the Deputy Commissioner has

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

recorded the incidents on the date of polling at several booths hut reliance was placed onl.)' on the evidence relating to two booths namely Kalaka and Burthal Jat. For the reasons recorded in his judgment, the learned trial judge has not accepted the tape·-recorded evidence. The tape-record purports to record state- ments made by some persons including polling agent, polling B officer Col. Ram Singh and Deputy commissioner himself. About the acceptance and reliability of evidence on tape-recording, one should proceed very cautiously. In this connection on the analogy of mutilated document if the tape-recording is not coherent or dis~l.nct or clear, this should not be relied upon. See in this conne.ction the observations in American Jurisprudence Vol. 30 page 939. c In the case of R. V• Maqsud Ali, [1965] 2 All E.R. page 464 in respect of criminal trial the question was considered hy the Court of Appeal in England. A tape-recording, i t was h2ld, was admissible in evidence provided the accuracy of the recording can be proved and the voices recorded can be properly identified and that the evidence is relevant and otherwise admissible. The lJ Court, however, observed that such evidence should always be regarded with some caution and assessed in the light of all the circunstances of each case. There cannot, however, be any question of laying down any exhaustive set of rules by which the admisHibility of such evidence should be judged. It was further observed that provided the jury was guided by what they hear E themselves from the tape . recording and on that they base their ultimate decision, there is no objection to a copy of the transcript of a tape recording, properly proved, being put before them. It is not necessary to set' out the particular facts of that case. It may be noted, however, that Marshall, J, had observeJ at pages 469-70 of the report as follows:- F "It is next said that the recording was a bad one, overlaid in places by street and other noises. This obviously was so and as a result, much of the conversation was inaudible or undecipherable. In so far as that was so, much of the conversation was never transcribed, but there still remained much that was transcribed, and the learned judge after full argunent ruled that what was deciphered should be left for the jury to assess. We think that he was right. Lastly, it was said that the difficulties of language were such as to make any transcriptl.on unreliable and misleading. This argunent the learned judge treated

RAM SINGH v. COL. RAM SINGH [SABYASACHI MUKllARJI, J.] 503

with great care and circumspection. The recorded conversation was in Ptmjabi dialect confined to a particular area of Pakistan. lie was told that there· were many such dialects in which similar wor.ds differed in or had mote than one meaning, that the meaning of sentences often depended on the order of the woris, that pronouns were matters of inference and not repr.esented by actual words. Often only parts of sentences were decipherable owing to the other extraneous noises. He decided, before admitting the evidence to have a trial within a trial in which translators were called by both aids which, I think l am right in saying, lasted 2-1/2 days. All matters were canvassed in very great detail. He discovered that ther~ were certain passages comnon to trans- lations and, in the end, he decided that it was a question which should be left to the jury but.he did not think "this evidence was so unsatisfactory that l should withdraw it from the jury. " D

It has to be borne. in mind that in England and in Alllerica, the mechaniam of tape recording is well-advanced· In this col.Dltry~ it is not sc as yet. Furthermo~e the infirmlties, some of which 1,,,ve Leen noted by Marshall, J. of tape recording, are more e""9id~nt in the _, :ist~nt case before us .. E In !l. '7- R<c""°"· [1972] 2 All E.R. page 699 the accused was charged inter alia, with corruption. The prooacut:lons ought to put tn evidence ..certain tape recordings. The defence contended thnt these were not admissible because (i) it had not been ehown that these were the originals· or in the absence of the originals true copies of them, and (ii) they were mialeading and should not be relied on because in many places these were unintelligible and of oor quality and their potential prejnd!cfa! effect would therefore outweigh the evident:l&y value claimed for these. It was held by the Court as follows:-

"The recordings were admissible for tbe following reasons-

(i) the Court was required to do no more than satisfy itself that a prima facie case of originality had been made out by evidence whirh defined and described the provenance and history of the recordings up to the moment of production in Court and had not been

504 SUPREME COURT REPORTS [1985] SlJPP.2 s.c.R.

disturbed on cross-examination; in the circumstances that requirement had been fulfilled (see p 701 f and p 702 a, post).

(ii) the Court was satisfied, on the balance of proba- bilities, that the recordings were original and B , authentic and their quality was adequate to enable the jury to form a fair assessment of the conversations recorded in them and should not be excluded on that account (see p 703 f and g, post)."

In the instant case, the tape recordings, as we have heard, were misleading and could not be relied on because in most places they were unintelligible and of poor quality and of no use c therefore their potential prejudicial effect outweighs the evidentiary value of these recordings.

This Court had also considered this question in Sbri N.Sri 8 - Reddy Etc v. Sbri v.v. Giri.. [1971] l SCR page 399. There in case of an election trial it was held by this Court that the previous statement made by a person and recorded on tape, could D be used not only to corroborate the evidence given by the witness in Court but also to contradict his evidence given before the court, as well as to test the veracity of the witness and also to impeach his impartiality. Apart from being used for corroboration, the evidence was admissible in respect of the other three matters under sections 146 (1), 153, Exception (2) E and section 155 · (3) of the .Evidenee Act. This Court observed after referring to some cases that two propositions are clear that (1) tape recorded conversation is admissible in evidence (2) if it contains the previous statement made by a witness, it may be used to contradict his evidence given before the Court. But the Court cautioned itself at page 411 that though tape recording may be ·admissible what weight it has to be put to such evidence depended upon the facts and circumstances and other relevant factors.

In the case of Jl.!l. l!e'kan• v. State of l!eharubtra, (1973] 2 s.c.R. page 417 .This Court observed that tape recorded conversation was admissible provided firstly that the conver- sation was relevant to the matters in issue secoDdly, there was identification of the voice and thirdly, the accuracy to tape recorded coversation has to be proved by eliminating the possibi- lity of erasing the tape. H

RAM SINGH v. COL. RAM SINGH [SABYASACHI MUKllARJI, J. J 505

In the facts of the present case, however, the dangers noted A by this Court were present. So therefore though in an appropriate case it may be possible to rely upon tape-recorded conversation, in the facts of this case and for the infirmities in the tape-recorded evidence as pointed out before, this cannot be relied in the instant case. B On the aspect of the nature of evidence, the question here is not who is a saint or who is a ~inner. It has to be borne in mind· that this is a quasi-criminal proceeding. It has been so held in numerous decisions. "Quasi" means' as if' , 'similar to' • The question of nature of · evidence was rather exhaustively examined by a decision of this Court in M. Cbeima Reddy V• v. c l!amacbandra Hao and Anr., [1972] E.L.R. Vol. 40 page 390. There after discussing the evidence, G.K. Mitter, J, speaking for this Court reiterated the nature of evidence at pages 414-415 thus:

"This court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent differen~e 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- F tion petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practices depends on the oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becoems the duty of the Court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal, a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from the nature of the charge the trial itself goes on as if the issues in a civil suit

506 SUPREME COURT REPORTS [1985] SUPP;Z s.c.R.

A were being investiagated into. The petitioaer has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the Code of Civil Ptocedure to the trial of suits with the aid of the provisions of the Indian Evidence Act· Inferences can therefore be draw against a party who does not call evidence which should be available in support of his version."

In the case of Ram Sharan Yadav v. Thakur Muneshwar Nath Singh and Others [1984] S.C.C. page 649 this Court observed that c the charge of a corrupt practice is in the nature of a criminal charge which if proved, entails a very heavy penalty in the form of disquslification. Therefore, a very cautious approach 1111st be made in order to prove the charge of vndue influence levelled by the defeated candidate. It is for the party who sets up the plea of 'undue influence' to prove it to the hilt beyond reasonable doubt and the manner of proof should he the same as for an D offence in a criminal case. However, while insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice. See also in this connection the observations in the case of Sardar llattbaran Singh v. Sardar Sajjan Singh I< Ora. Civil Appeal Na. E 3419 (NCE) of 1981-Judgment delivered on 29th November, 1984.

Judged by the aforesaid standard, for the infirmities mentioned in the judgment of my learned brother, it car>.not be said that the appellants have proved their case to the extent required to succeed. F While in a first appeal, the entire evidence can be reviewed by the appellate Court, and this being the first appeal under Section 116A of the Representation of the People Act, one 1111st, however, always bear in mind that where the question is whether the oral testimony should be believed or not, the views of the trial judge should not be lightly brushed aside where the trial judge has to advantage of judging the manner and demeanour of the witness which advantag·co the appellate Court does not enjoy• This is a limitation on all appellate Courts whether be it the first appeal or second appeal. In believing the oral testimony of a witness, the view of the judge who has the advantage of watching the demeanour and the conduct of the witness cannot be lost sight

RAM SINGH v. COL. RAM SINGH [SABYASACHI MUKHARJI, J.] 507

of. See the observations of this Court in Moti Lal v. Chandra A Pratap Tiwari &Ors. AIR 1975 SC page 1178 seealso the observa- tions of this Court in Raglmvir Singh v. Ragbnhlr Singh Kusbwaha. AIR 1970 S.C.page 442. In view of the nature of the evidence on record, we find no reason to disagree with the appraisement of the evidence by the learned ttial judge. B

Last point indicated above is interesting as was sought to be raised by Mr. Sibbal, because preventing ,a person from casting his vote or causing a bogus vote purpoting to be a vote of some one other than the genuine ·voter would be a serious interference c with the electoral process, as grave as preventing a person from voting. Right to abstain from voting is recognised in our system of election. But in view of the evidence in this case, the point need not be pursued further. D For the reasons mentioned before, I agree that the appeal be dismissed.

ORDER E In accordance with the decision of the majority, the appeal is dismissed without any order as to costs.

P.B.R.