Full Judgement
Ram Singh & Ors Vs. Col. Ram Slngh [1985] INSC 170 (7 August 1985)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) MUKHARJI, SABYASACHI (J)
CITATION: 1986 AIR 3 1985 SCR Supl. (2) 399 1985 SCC Supl. 611 1985 SCALE (2)1142
ACT:
Representation of the People Act 1951: Corrupt Practice how should be Proved.
Evidence Act - Tape recorded statements - When could be used as evidence - Safeguards to be taken in using tape recorded evidence.
HEADNOTE:
In the general election to the State Assembly held in 1982 the appellants and the respondents were the candidates.
The respondent was declared elected to the Assembly. In their election petition, the appellants alleged that the respondent was guilty of corrupt practice and booth capturing in that he went to two polling booths along with 50 to 60 persons, armed with guns, sticks and swords, threatened and pressurized the voters and as a result of the serious threats held out by the respondent and his men the voters ran away without exercising their franchise; that the respondent and his companions entered the polling booths and terrorized the Polling Officer and polling agents, assaulted the polling agents at gun point, snatched away the ballot papers and marking them in the respondent's favour, cast the votes in the ballot boxes and thumb marked the counter foil of ballot papers. They sought a declaration that the respondents election was void under section 100 of the Representation of the People Act 1951. A large number of witnesses were examined by both sides. The Deputy Commissioner who was the Returning Officer of the constituency recorded on a tape recorder the statements of same persons including the polling agents, the Polling Officer and the respondent and of himself.
The High Court held that the evidence of the witnesses and the petitioners on these points was not corroborated, no effort was made by the petitioners to connect the respondent with the ownership of vehicles purported to have been used by him, that the witnesses were drawing more upon their imagination to make out stories about the detention of the persons and forcible polling at that polling station by the respondent and that the 400 petitioners failed to prove the charge beyond reasonable doubt. A The court also held that the role assigned to the respondent by the petitioners has not been proved.
Dismissing the appeal ^
HELD: [Per Fazal Ali J, Sabyasachi Mukharji J concurring and Varadarajan J dissenting] The appellants have failed to prove their case that the respondent was guilty of indulging in corrupt practices. [446 F] Clear and specific allegations with facts and figures regarding the corrupt practices indulged in by the respondent have not been alleged in the first part of the election petition. The petitioners should have given definitive and specific allegations regarding the nature of fraud or the corrupt practices committed by the respondent as briefly as possible in the main part of the petition.
[407 E-F] The appellants have not established that the respondent was present at the time of the incidents at the two booths.
Once this is not proved, the appellants have failed. It is settled law that corrupt practices must be committed by the candidate or his polling agent or by others with the implicit or explicit consent of the candidate or his polling agent. Where the supporters of the candidate indulged in corrupt practices on their own, without the authority from the candidate the election cannot be voided, and this factor is conspicuously absent in this case. It is also settled law that the charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities. As the charge of corrupt practice is in the nature of a criminal charge, it is for the party who sets up the plea of undue influence to prove it, to the hilt and the manner of proof should be the same as in a criminal case.
[445 F-H] As regards the evidence recorded on a tape Recorder or other mechanical process the preponderance of authorities is in favour of the admissibility of the statements subject to certain safeguards viz., (1) the voice of the speaker must be identified by the maker of the record or by others who recognise his voice. Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. [414 E] (2) The voice of the speaker should be audible and not distorted by other sounds or disturbances. [414 E] 401 (3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.[414 F] (4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out; [414 G] (5) The statement must be relevant according to the rules of evidence and [414 H] (6) The recorded cassette must be carefully sealed and kept in safe custody. [415 A] R. v. Maqsud Ali [1975] 2 All E.R. 464 and B. v. Robson [1972] 2 All E.R. 699, referred to.
In the instant case, the voices recorded at a number of places are not very clear and there is noise while the statements were being recorded by the Deputy Commissioner. A good part of the statement recorded on the cassette has been denied not only by the respondent but also the respondent's witnesses. No other witness has come forward to depose identification of the voice of the respondent or of witnesses. [444 E] There are erasures here and there in the tape and besides the voices recorded being not very clear, lt is hazardous to base a decision on such evidence. The Deputy Commissioner recorded the statements in violation of the instructions or the Government and erred in not placing the recorded cassette in proper custody. He kept it with himself without authority and therefore the possibility of tampering with the statements cannot be ruled out. The transcript was prepared in his office by his stenographer and when the transcript was being prepared the Deputy Commissioner himself was absent from his office. The possibility of its being tampered with by his stenographer or somebody else cannot be ruled out. Respondents witnesses have denied the identity of their voices. The recording was done in a haphazard and unsystematic manner. A conspectus of the evidence of the witnesses shows that the evidence adduced by the respondent in the court is much superior in quality than that adduced by the appellants. The High Court was right in holding that the petitioners had failed to prove the allegations of corrupt practice or booth capturing beyond reasonable doubt. [441 E, 442 H-443 E] Sabyasachi Mukharji,J. concurring: While accepting the tape recorded statements the court should proceed cautiously. The 402 evidence should be examined on the analogy of mutilated documents. If the tape recording is not coherent or distinct or clear it should not be relied upon. [502 B,D-E] R. V. Maqsud Ali [1975] 2 All E.R. 464 and R. v. Robson [1972] 2 All E.R. 699, referred to.
In the instant case, the tape recording was misleading and could not be relied on because in most places it was unintelligible and of poor quality. Therefore, its potential prejudicial effect outweighs the evidentiary value of the recording. [504 C] Shri N. Sri Rama Reddy etc. v. Shri V.V. Giri [1971]1 S.C.R. 399 and R.M. Malkani v. State of Maharashtra [1973] 2 S.C.R. 417 M.Chenna Reddy v. V. Ramachandra Rao & Anr. [1972] E.L.R. Vol. 40, 390; Ram Sharan Yadav v. Thakur Muneshwar Nath Singh & Ors. [1984] 4 S.C.C. 649; C.A.No. 3419/81 decided on 29.11.84, referred to.
It is settled law that the charge of corrupt practice is in the nature of a criminal charge which if proved entails a heavy penalty in the form of disqualification and that a more cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidate. In the instant case, it cannot be said that the appellants had proved their case to the extent required to succeed. [506 D] Where the question is whether the oral testimony should be believed or not the views of the trial judge should not be lightly brushed aside, because the trial judge has the advantage of judging the manner and demeanour of the witness which advantage the Appellate Court does not enjoy. In view of the nature of the evidence on record there is no reason to disagree with the appraisal of the evidence by the trial judge. [506 G] Moti Lal v. Chandra Pratap Tiwari & Ors. A.I.R. 1975 S.C. 1178 and Raghuvir Singh v. Raghuvir Singh Kushwaha A.I.R. 1970 S.C. 442, referred to.
Varadarajan J. dissenting : It is clear from decided cases that tape recorded evidence is admissible provided the originality and the authenticity of the tape are free from doubt. In the instant case, there is no valid reason to doubt them. It is not reasonable to reject the tape merely because some portions thereof 403 could not be made out on account of noise and interference not only outside but also inside the Polling Station. On the contrary under the circumstances of this case great relevance has to be placed on the tape and its contents not only for corroborating the evidence of the District Commissioner and the Presiding Officer to the extent they go but also as resgestae evidence of the first part of the incident. The Trial Judge was not justified in rejecting the tape record and transcription. The appellants have proved satisfactorily and beyond reasonable doubt the first part of the incident in one of the Polling Stations, that the respondent went armed with a rifle with 25 or 30 companions and entered the Polling Station with 4 or 5 armed companions and threatened the Presiding Officer and others who were present there with the use of force and got some ballot papers marked in favour of the respondent polled forcibly by his companions in the ballot box and that they left the Polling Station on seeing the villagers and the police coming towards the Polling Station. The discrepancy in evidence regarding the time of the incident is not material.
[478 A-C, 483 E-484 A] Secondly, the Deputy Commissioner recorded the conversation which he had with the presiding Officer but some portion thereof was erased by his own voice by inadvertence. After recording, his stenographer prepared the transcript in his office most of it under his supervision and though he was temporarily absent to attend to some other work he compared it with the original tape and found it to be correct. The tape, the tape recorder and the transcript remained with him throughout and were not deposited by him in the record room and there was not possibility of tampering. [496 F-497 A] The respondent had managed to keep away from the court material evidence by way of the original report of the Presiding Officer. He had cited a person as his witness to depose about his case but did not examine him for that purpose and had called him only for the purpose of production of some record, without any oath being administered to him. He had denied to the appellants the opportunity to cross-examine that witness. The respondent had come forward with a new case of alleged booth capturing and forcible polling of bogus votes after the appellants had completed the examination of their witnesses to whom not such suggestion was made in the cross-examination. From the evidence on record two views are not possible. The appellants have proved beyond reasonable doubt that the respondent had committed the corrupt practices alleged against him. No lenient view can be taken in this case merely because the election petition is directed against the returned candidate. [499 G-500 B] 404
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6623 of 1983.
From the Judgment and Order dated 3.6.1983 of the Punjab & Haryana High Court in E.P. 13/82.
Kapil Sibal, Gopi Chand, K.C. Sharma, R. Karanjawala, Mrs. M. Karanjawala, Miss Neethu & Mrs. Madhu Tewatia for the Appellants.
K.G. Bhagat, Additional Solicitor General, R.Venkataramani, Ranbir Singh Yadav, P.S. Pradhan, Chandra Shekhar Panda and A. Mariaroutham for the Respondent.
The following Judgments were delivered:
FAZAL ALI, J. The election process in our country has become an extremely complex and complicated system and indeed a very difficult and delicate affair. Sometimes, the election petitioner, who has lost the election from a particular constituency, makes out on the surface such a probable feature and presents falsehood dextrously dressed in such a fashion as the truth being buried somewhere deep into the roots of the case so as to be invisible, looks like falsehood which is depicted in the grab of an attractive imposing and charming dress as a result of which some courts are prone to fall into the trap and hold as true what is downright false. If, however, the lid is carefully opened, and the veil is lifted, the face of Falsehood disappears and truth comes out victorious.
In such cases the judicial process and the judicial approach has to be both pragmatic and progressive sc that the deepest possible probe is made to get at the real truth out of a heap of dust and cloud. This is indeed a herculean task and unless the court is extremely careful and vigilant, the truth may be so completely camouflaged that falsehood may look like real truth.
Of course, the advocacy of the counsel for the parties does play a very important role in unveiling the truth and in borderline cases the courts have to undertake the onerous task of "disengaging the truth from falsehood, to separate the chaff from the grain". In our opinion, all said and done, if two views are reasonably possible one in favour of the elected candidate and the other against him Courts should not interfere with the expensive electoral process and instead of setting at naught the 405 election of the winning candidate should uphold his election giving him benefit of the doubt. This is more so where allegations of fraud or undue influence are made.
There observations have been made by us in order to decide election cases with the greatest amount of care and caution, consideration and circumspection because if one false step is taken, it ay cause havoc to the person who loses.
It is not necessary for us to dwell on or narrate the facts of the case of the parties which have detailed by the High Court in very clear and unambiguous terms. To repeat the same all over again might frustrate the very object of deciding election petitions with utmost expedition. Even so, it may be necessary for us to give a bird's eye view and a grotesque picture of the important and dominant elements of the controversy between the parties in order to understand which of the two cases presented before us is true.
The evidence in the present case consists of - a. Oral evidence of the witnesses of the parties b. the documentary evidence c. the evidence consisting of the tape recorded statements of the conversation between the Deputy Commissioner and the respondent, Col. Ram Singh, corroborated by the respondent himself who was examined as a court witness by us in this Court and both sides were given full opportunity to cross-examine him.
d. important points of law arising out of the arguments presented before us, and e. authorities of this Court or other courts cited before us.
For the purpose of understanding the truth and the spirit of the matter a scientific dichotomy of the case has to be made which may include the following factor:
a. Time and manner of voting, 406 b. allegation of both capturing, c. role played by the electoral authorities who ma have acted honestly yet the possibility of their falling an easy prey to the machinations of one side or the other cannot be safely eliminated which may lead to an error of Judgment on their part. This should be fully guarded against as also the possibility of their being attracted by any False temptation, d. Where the proof of a corrupt practice is he very cornerstone and the bedrock of the case set against the successful candidate, the court should be doubly sure that it is not lured to fall in the labyrinth of chaos and confusion by easily holding that the corrupt practice alleged has been proved.
With this short prelude, we would now proceed to give an exhaustive glimpse of the contentions raised before us by the parties. Before, however, we do that we must record our appreciation and gratefulness to the counsel for both the parties who in a big case like this had been fair enough to confine their arguments only to two polling stations, viz., Kalaka and Burthal Jat, which has rendered our task much easier besides saving a lot of time, labour and expense. We also feel indebted to the learned counsel for the parties for having argued the case with dexterity and brevity which, as it is said, is the 'soul of wit'.
The present appeal arises out of an election held on May 19,1982 to the Haryana Vidhan Sabha from Rewari constituency No.86. In view of the concession made by the counsel for the parties, we are concerned in this appeal only with two polling booths, viz., Kalaka and Burthal Jat.
It appears that there were as many as five candidates and Col. Ram Singh [respondent] seems to have been pitted against the aforesaid candidates.
The bedrock of the allegations made by the appellants against the respondent was that he has been painted to be a most undependable and unreliable person from the moral point of view as having changed sides with one party or the other to suit his needs and divided his loyalties by playing a dirty game of politics in that he changed sides without any fixed ideology and the only principle which, according to the appellants, the respondent had, was lust for power. It may be pertinent to note 407 here that the respondent had also alleged that Rao Birendra Singh, who, according to him, was the evil genius of the whole show, had set up his sister, Sumitra Bai, to contest the election in order to get the respondent out of the way.
However, we are not at all concerned with any of these matters or allegations which appear to be foreign to the scope of the present appeals nor are these matters of which any serious notice can be taken because as Shakespeare has said "everything is fair in war and love" and the respondent could not be presumed to be as virtuous as Ceasar's wife so as to be completely above board. So, we cannot blame the respondent if he changed sides to suit the temper of the times. At any rate, this allegation has no relevance to the setting aside of the election of the successful candidate.
The law does not recognise either political morality or personal loyalties so long as the candidate allows a fair game to be played without destroying the sanctity of the electoral process by indulging in undue influence or corrupt practices which must be proved satisfactorily beyond reasonable doubt.
So far so good. A conspicuous fact may however be noticed here, viz., that clear and specific allegations with facts and figures regarding the corrupt practices indulged in by the respondent have not been alleged in the first part of the election petition itself. The allegation however, have been detailed in the statement of particular submitted by the appellants, who were certainly entitled to do so but we should have expected some definitive and specific allegations regarding the nature of the fraud or the corrupt practices committed by the respondent as briefly as possible in the main part of the petition itself. Therefore, this is doubtless a relevant factor in Judging the truth of the particulars mentioned in the statement more particularly when the onus of proving the corrupt practice lies entirely on the election petitioner who must demonstrably prove the same.
And now a pointed peep into the salient features of the facts of the case. To begin with, the arguments of the appellants are confined only to the Kalaka and Burthal Jat polling booths. Therefore we proceed further we might at this stage briefly indicate, shorn of details, the nature, character and the extent of the allegations regarding the corrupt practices and booth capturing alleged to have been indulged in by the respondent on the basis of which the appellants seek to set aside the election of the respondent.
408 As regards Kalaka, (1) it was alleged that the respondent appeared at the scene at about 10.30 a.m. with 50-60 persons and was himself armed with a gun while his companions had guns, sticks and swords. By sheer show of force, the voters were threatened and pressurised as a result of which they ran away without exercising their votes. In other words, the allegation is that as a result of the serious threat held out by the respondent, the voters were deprived of their valuable right of fraenchise.
(2) The respondent alongwith his companions enter the booth and terrorised the polling officer as also the polling agents (Basti Ram & Ishwar) of the Congress I candidate who were assaulted by The respondent by the but end of the barrel of his gun.
(3) The respondent and others at gun point snatched away about 50 ballot papers from the polling staff and after marking them in his (respondent) favour put them into the ballot box.
(4) The respondent and his companions at his (respondent) instance thumb-marked the counterfoils of the ballot papers also.
As regards Burthal booth, (1) the appellants alleged that almost the same modus operandi was adopted by the respondent and he directed his supporters to prevent the voters from entering the booth, thereby depriving them of the opportunity of exercising their right to vote.
(2) Not content with this, the respondent left behind his relations Anil Kumar and Satbir Singh to carry on the aforesaid activities and gave further instructions that the maximum number of votes should be polled in his favour.
Thus, so far as Kalaka and Burthal polling booths are concerned, two important corrupt practices have been alleged by the appellants:- (1) forcible polling of votes and (2) preventing the genuine voters from exercising their right to vote.
It manifestly follows that once it is proved that the respondent was not present at the time of the incidents at Kalaka 409 and Burthal, the case of the appellants falls like a pack of cards because it is well settled by several authorities of this Court that the corrupt practice must be committed by the candidate or his polling agent or by others with the implicit or explicit consent of the candidate or his polling agent. Where, however, the supporters or a candidate indulge in a corrupt practice on their own without having been authorised by the candidate or his polling agent, the election of the returned candidate cannot be voided. We might mention here that the last factor indicated by us is conspicuously absent in this case taking ex facie the entire facts narrated by the appellants in their pleadings or in the evidence.
Before, however, analysing and marshalling the evidence we would like to refer to the authorities of this Court and other courts regarding the necessary precautions to be Taken in approaching evidence in election cases and she principles laid down by us. We would also deal with the extent of the admissibility of the evidence of the tape recorded statements alleged to have been made by some of the witnesses in the tape-recorder recorded by P.W. 7, the Deputy Commissioner.
As regards the principles enunciated by this Court regarding the nature and the standard of proof of corrupt practice alleged by an election petitioner against the successful candidate, though it is not necessary for us to burden our judgment with multiplicity of authorities yet the ratio of some of the important decisions which are directly in point may be briefly stated.
To begin with, as far back as 1959 in Ram Dial v. Sant Lal Ors., [1959] 2 supp. S.C.R. 748, the Court observed thus:
"What is material under the Indian law, is not the actual effect produced, but the doing of such acts as are calculated to interfere with the free exercise of any electoral right. Decisions of the English Courts, based on the words of the English Statute, which are not strictly in pari materia with the words of the Indian statute, cannot, therefore, be used as precedents in this country." In Samant N. Balakrishna, etc. v. George Fernandez & Ors. etc.., [1969] 3 S.C.R. 603, this Court while dwelling on the principles to be followed in election cases pithily point out thus:
410 "The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must point unerringly to the conclusion and must not admit of any other explanation. Although the trial of an election petition is made in accordance with the Code of Civil Procedure it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent." In Ch. Razik Ram v. Ch. Jaswant Singh Chouhan & Ors.
[1975] 4 S.C.C. 769, this Court laid down the following principles:
"Before considering as to whether the charges of corrupt practice were established, it is important to remember the standard of proof required in such cases. It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking, part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial.
Secondly, even if the nature of the trial of an election petition is not the same in all respects as that of a criminal trial, the burden of proving each and every ingredient of the charge in an election petition remains on the petitioner. If a fact constituting or relevant to such an ingredient is pre-eminently within the knowledge of the respondent, it may affect the quantum of its proof but does not relieve the petitioner of his primary burden." In Balwan Singh v. Prakash Chand & Ors. [1976] 3 S.C.R. 335, Shinghal,J. made the following observations:
"Another argument of Mr. Bindra was that the corrupt practice in question should not have been found to 411 have been committed as the election petitioners did not examine themselves during the course of the trial in the High Court. There was however no such obligation on them, and the evidence which the election petitioners were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely." In the case of Sultan Salahuddin Owasi v. Mohd. Osman Shaheed & Ors.[1980] 3 S.C.C. 281 to which one of us (Fazal Ali, J.) was a party, this Court observed thus:- "It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation s the same as a charge of fraud in a criminal case.
In Ram Sharan Yadav v. Thakur Muneshwar Nath Singh & Ora. [1984] 4 S.C.C. 649, to which two of us were parties, this Court observed thus:
"The sum and substance of these decisions is that a charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of E probabilities. As the charge of a corrupt practice is in the nature of a criminal charge, it is for the party who sets up the plea of ' undue influence' to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case. This is more so because once it is proved to the satisfaction of a court that a candidate has been guilty of 'undue influence' then he is likely to be disqualified for a period of six years or such other period as the authority concerned under Section 8-A of the Act may think fit.
By and large, the Court in such cases while appreciating or analysing the evidence must be guided by the following considerations:
(1) the nature, character, respectability and credibility of the evidence, 412 (2) the surrounding circumstances and the improbability appearing in the case, (3) the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who had the initial advantage of observing the behaviour, character and demeanour of the witnesses appearing before it, and (4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged." This, therefore, concludes the question regarding the standard of proof.
As heavy reliance was placed by the appellants on Ex.P- 1 (the tape-recorded statements of RWs 1 to 3) as also the statements recorded in the same tape-recorder by PW 7 which included the statement of the respondent, in order to allay all doubts and satisfy ourselves regarding the genuineness of the statements made in the tape-recorder we have examined the respondent as a court witness in this Court and allowed him to be cross-examined by both sides. We would deal with the nature and the relevancy of the statements made at a later part of our judgment. But before that we would like to settle the controversy between counsel for the parties as to the extent of admissibility of evidence recorded on tape- recorder or other mechanical process.
It seems to us that the matter have is not free from difficulty but the preponderance of authorities - Indian and foreign - are in favour of admissibility of the statement provided certain conditions and safeguard are proved to the satisfaction of the court. We now proceed to discuss the various ramifications and the repercussions of this part of the case.
This Court had the occasion to go into this question in a few cases and it will be useful to cite some of the decisions. In Yusufalli Esmail Nagree v. State of Maharashtra [1967] 3 S.C.R. 720, this Court, speaking through Bachawat, J. Observed thus:
"If a statement 'is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be 413 properly identified. One of the features of magnetic tape RECORDING is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.
The tape was not sealed and was kept in the custody of Mahajan The absence of sealing naturally gives rise to the argument that the recording medium might have been tempered with before it was replayed." (Emphasis ours) In the case of N. Sri Rama Reddy, etc. v. V.V.Giri [1971] 1 S.C.R. 399, the following observations were made:
"Having due regard to the decisions referred to above, it is clear that a previous statement, made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality.
In R.M. Malkani v. State of Maharashtra [1973] 2 S.C.R.
417, this Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape-recorded statement admissible otherwise not; and observed thus:
"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record.
(Emphasis supplied) In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors., [19751 Supp. S.C.R. 281, Beg,J. (as he then was, made the following observations:
"We think that the High Court was quite right in holding that the tape records of speeches were 414 "documents" , as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who knew it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, DIRECT or circumstances, had to be there 80 as to rule out possibilities of tampering with the record.
(c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the evidence Act." (Ephes ours) Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker.
Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
415 (5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
The view taken by this Court on the question of admissibility of tape recorded evidence finds full support from both English and American authorities. In R. v. Maqsud Ali, [1965] All. E.R. 464., Marshall, J., observed thus:- C "We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.
We find ourselves in complete agreement with the view taken by Marshall, J., who was one of the celebrate Judges of the Court of Criminal Appeal. To the same effect is another decision of the same court in R. v. Robson [1972] 2 All E.R. 699, where Shaw, J., delivering a judgment of the Central Criminal Court observed thus:
"The determination of the question is rendered more difficult because tape recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts.
416 During the course of the evidence and argument on the issue of admissibility the recordings were played back many times. In the end I came to the view that in continuity, clarity and coherence their quality was, at the least, adequate to enable the jury to form a fair and reliable assessment of the conversation which were recorded and that with an appropriate warning the jury would not be led into and interpretation unjustifiably adverse to the accused. Accordingly, so far as the matter was one of discretion, I was satisfied that / injustice could arise from admitting the tapes in evidence and that they ought not to be excluded on this basis." In Amercian Jurisprudence 2nd (Vo1.29) the learned author on a conspectus of the authorities referred to in the footnote in regard to the admissibility of tape recorded statements at page 494 observes thus:
"The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows:
(1) a showing that the recording device was capable of taking testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the recording;
(4) a showing that changes, additions, or deletions have not been made;
(5) a showing of the manner of the preservation of the recording;
(6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.
417 ..However, the recording may be rejected if it is so inaudible and indistinct that the jury must - (Emphasis ours) We would, therefore, have to test the admissibility of the tape recorded statements of the respondent, given in the High Court as also in this Court, in the light of the various tests and safeguards laid down by this Court and other Courts, referred to above. We shall give a detailed survey of the nature and the character of the statement of the respondent in a separate paragraph which we intend to devote to this part of the case, which is really an important feature and, if accepted, may clinch the issue and the controversy between the parties on the point of corrupt practice.
This now brings us to a summary of the nature of the evidence produced by the parties. As already stated counsel for the parties confined their arguments only to the validity of the election relating to Kalaka and Burthal Jat polling booths.
By virtue of a notification dated 17.4.82 the Governor of Haryana called upon the voters to elect Members to the Vidhan Sabha. The last date for filing the nomination papers was 24.4.82, the date for scrutiny was 26.4.82 and 28.4.82 was the last date for withdrawal of candidature. The polling was held on 19.5.82 and the counting of votes took place on 20.5.82. It is the last date with which we are mainly concerned. To begin with, it appears that 24 persons had filed their nomination papers out of which three were rejected by the Returning Officer and 16 persons withdrew their candidature, leaving five persons in the field. Smt.
Sumitra Devi was a nominee of the Congress (I) party and the respondent filed his nomination papers initially as an Independent candidate but later on joined Congress (J) party. The respondent was first in the army but he resigned soon after the Indo Pakistan war in 1971 and started doing business as a diesel dealer in partnership with others. On being elected to the Vidhan Sabha he become its Speaker as he enjoyed the confidence of the then Chief Minister, Ch.
Devi Lal. As it happened, in the 1980 Parliamentary elections the Congress (I) party swept the polls and Shri Bhajan Lal, having left the Janata Party, joined the Congress (I) party along with many of his supporters, including the respondent. But, we are concerned only with the 1982 Assembly elections to the Haryana Vidhan Sabha in which the main candidates were Smt. Sumitra Devi and the respondent.
418 KALKA POLLING BOOTH We would first take up the allegations levelled by the appellants against the respondent regarding the corrupt practices relating to the Kalaka polling booth. According to the evidence of R.W.1, the polling started at 7.30 a.m. and went off peace fully without any untoward incident till 10.30 a.m. Near About this time, according to the allegations of the appellants, the respondent arrived with a posse of 60-70 persons, including Des Raj, Ram Kishan and others, to create disturbance in the polling and to prevent the votes from being polled in favour of other parties. It is also alleged that a mob of 40-50 persons was variously armed with guns, lathis and swords, and the respondent himself was armed with a gun. As a result of the activities of the respondent, some of the voters like Shiv Charan, Gurdial and others were forced to run away without exercising their right to vote. It was further alleged that not to speak of the voters even the polling staff was not allowed to do its duty which resulted in the voting coming to a stand still. At this, one Mangal Singh raised serious protest and on the orders of the respondent he was assaulted. Ishwar (Lambardar) was also hit by the buttend of the gun and despite the objections of Basti Ram he was also assaulted. The policemen were heavily outnumbered and had to stand as silent spectator to the whole show. Further details of the acts of omission and commission committed by the respondent have been given in the judgment of the High Court as also on pages 10-12 of Vol. III of the Paperbooks.
It is also alleged that the respondent with the aid of his companions snatched as many as 50 ballot papers from the polling staff and after marking them in his favour put them into the ballot box. Ultimately, on the arrival of the high officers the Presiding Officer lodged a detailed report giving his own version of the incident on the basis of which FIR was registered on 19.5.82 itself. P.W. 7, Mr. N.
Balabhaskar, the Deputy Commissioner of Mohindergarh District, who was the Returning Officer of the entire constituency also reached the spot and made enquiries in the matter. As a result of the trouble created at the instance of the respondent, the polling had to be postponed as it was disrupted for more than an hour.
These in short, are the allegations of the appellants against the respondent in respect of Kalaka polling booth.
We shall now refer`to the evidence led by both the parties on there particular points to show how far the allegation have been proved. To begin with, P.Ws. 7, 8, 12 to 18 deposed in favour of the appellants in respect of this polling booth. In order to 419 rebut the evidence led on behalf of the appellants, the respondent produced Roop Chand (R.W.1), Deen Dayal (R.W.2), constable Mohinder Singh (R.W.3), Dhani Ram (R.W.4), Ram Kishan (R.W.5) and Suresh (R.W.6) besides respondent himself (R.W. 22).
Having gone through the evidence led on behalf of both the appellants and the respondent, we are clearly of the opinion that despite the quantity of the appellants' witnesses, the quality of the respondent's witnesses appears to be much superior to that of the P.Ws. ln regard to the respective facts stated by them.
We would like to discuss the evidence of the Respondent witnesses by way of a comparative assessment ln relation to the evidence led by the appellants 80 that a true picture of the cases of the parties may come out conspicuously which would throw a flood of light on the credibility of the witnesses concerned.
We shall now show that the statement of R.W. 1 seems to find intrinsic support from the star witness of the appellants, viz., P.W. 7, the Deputy Commissioner. P.W. 7 is a high officer and, therefore, a respectable witness though, with due respect, we might say that his performance in this case has not been very satisfactory and his conduct leaves much to be desired. Without going into further details we might mention that his action in recording the statement of the witnesses on a tape recorder without taking the necessary precautions and safeguards cannot be fully justified. We are not able to understand as to why should he have taken the risk of recording the statements on a tape recorder knowing full well that the evidentiary value of such a tape recorded statement depends on various factors.
Since P.W. was accompanied by his stenographer, there could have been no difficulty in recording the statement of the persons concerned by dictating their statements to him and after being typed, signed the same and taken the signatures of the deponent a certificate "Read over and accepted correct." If this was done nobody could doubt the authenticity of such statements. P.W. 7 admits his statement that he was not authorised or asked by any higher officer than him to record the statement at the spot in a tape recorder which obviously he did at his own risk.
Furthermore, even if he had recorded the statements on a tape-recorder he ought not to have kept the cassette in his own custody but should have deposited it in the Record Room according to rules. By keeping the recorded cassette in his own custody, the possibility of tampering with or erasure of the recorded speech cannot be ruled out. Another serious defect in recording the statement on a tape 420 recorder was that he had to take further care and precaution to see that the voice of the person whose statement was recorded should be fully identified. Here again, he seems to have fallen into an error resulting in a very anomalous position as some of the witnesses particularly those appearing for the respondent, have clearly denied their voices in the cassette and refused to identify the same.
Others have partly admitted and partly denied their voices alleged to be those of the witnesses for the respondent.
Finally, he himself admits that there were a number of voices which led to some disturbance and difficulties in putting Two and two together. All these manifest defects could have been avoided if in the usual course he would have administered oath to the witnesses, recorded their statements and got the same signed by them as also by himself. In a sanctimonious matter like this, it is extremely perilous to take a risk of this kind. Perhaps it any be said that by recording the statements on a tape recorder he save time as he had to go to the other polling booths also. That, however, does not solve the problem because even if the statements were recorded on a tape recorder they had to be transcribed and by the time the statements were ready the witnesses would not be available to append their signatures. Moreover, the direct method of recording the statement by dictating the same to the stenographer would have been as expeditious as recording on a tape recorder and transcribing the same thereafter. We might mention here that the recorded cassette was replayed in this Court and then transcribed and only the relevant statements of the respondent took quite a few hours. Thus, by his negligence he allowed the recorded statements to suffer from a manifest defect.
That there were some erasures and lot of other voices has been admitted by P.W. 7 himself in his statement where he stated Thus:- "Some gaps in Ex. P. 1 have been left out, where the voice was not clear and audible.
Many people were standing at the polling booth whose voices have been recorded in the tape.
I cannot now identify the person whose voices I had recorded in the tape. I also cannot distinguish the name of person whose voice I had recorded after hearing the tape ..... My Stenographer had 421 prepared the transcript Ex.P1. It was prepared in my office. Most of it was done under my supervision. I might have been temporarily absent to attend to certain other work." Thus, even accepting the statement of P.W. 7 at its face value it appears that the various safeguards and precautions which the law requires to be taken while recording the statement On a tape recorder were not observed by him. That by itself is sufficient to discard the statement of the respondent recorded on the tape recorder without going into the merits of the said statement. Even so, we shall deal with this matter in detail when we take up the recorded statements in the cassette in the light of the evidence of the respondent who had been examined by us as a court witness to throw light on the subject.
Another serious infirmity from which the evidence of this witness suffers is that while he himself admits that he was not in a position to identify the voices of the persons whose statements he had recorded, R.W. 1, who was an alternative Presiding Officer at the Kalaka polling booth, has completely denied to have made any statement as recorded in the cassette and asserts that he had absolutely no talk with P.W. 7. Similarly, R.W. 3 (constable) stated that P.W.
7 had talked only to the Presiding Officer and to no other member of the polling staff. No evidence has been produced by the appellants to rebut this part of the evidence of R.W.
3. R.W. 3 says in unconditional terms as follows:
"I did not make any such statement which is recorded in the tape. The voice recorded in the tape is not my voice.
The statement of the witness which is transcribed in Exhibit P-l was also put to the witness. After hearing the same, the witness stated:
I did not make any such statement to the Deputy Commissioner, nor he interrogated me.' It Would thus appear that the two witnesses for the respondent, who were government servants and therefore official witnesses, clearly and categorically d denied having made any such statement in The cassette. P.W.. 7 HIMSELF has very fairly and frankly stated that he was not in a Position to identify the 422 voices either of the respondent or of the witnesses for the respondent (R.Ws. 1 and 3) at the time of giving his evidence. This, therefore, throws a considerable doubt on the truth of the statement made by these witnesses in the cassette recorder. The law which has been analysed and examined by us is very clear that identification of the voices is very essential. In this view of the matter, the tape recorded statements lose their authenticity apart from other infirmities which we shall give later while appreciating the evidence of the respondent in this court.
Another circumstance that goes a long way off to demolish the edifice and the structure of the appellants case regarding the Kalaka polling booth is the statement of P.W. 7 himself. According to the consistent evidence of K.Ws. 1-6, no incident had happened nor was any trouble created by the respondent but instead the musclemen of the appellants led by Ajit Singh tried to create all sorts of trouble, information of which was sent to the Deputy Commissioner. Here, we might notice the admission of P.W. 7 where he states as follows:
"At about 10.30 a.m., when I was between Mandola and Zainabad villages in Jatsuana constituency, I received a message on the wireless, the apparatus of which I was having in my motor car, that Col.
Ram Singh had complained against the workers of Congress (I). The COMPLAINT was that about 40 to 50 Congress (I) workers had attacked the Congress (J) workers at village Kalaka.
If the wireless message was sent to the d.C. at about 10.30 a.m. there could be no question of the respondent or his people to have visited Kalaka polling booth in order to create disturbance. This, therefore, INTRINSICALLY supports the case of the respondent and demolishes the case of the appellants about the arrival of Col.. Ram Sing and his relations, Satbir Sing and Anil Kumar.
It was also in evidence that after the first incident of the morning (wireless message received by P W. 7) two motor cycles are said to nave been left behind. lt is manifest that if the persons who had committed the disturbances alongwith their companions did not belong to the party of the respondent, as the wireless message shows, then the only other irresistible conclusion, by the process of elimination, would be that the motor cycles must have belonged to Ajit Singh and his companions who were supporters of the Congress (I) candidate.
423 Thus, this being the posit on and the real state of affairs at the spot, in a case like the present one involving high stakes and serious handicaps, we should have expected the conduct of the senior officers to have been completely above board.
Another reason which throws a considerable doubt on the testimony of the witnesses of the appellants is that P.W. 7 himself deposed that he did not receive any written complaint from the polling officer or the Presiding Officer or from any other person at the time when he visited the Kalaka polling booth. The appellants tried to bring on file certain complaints made to P.W. 7 by Suraj Bhan and others but as the original complaint had not been filed the complaint produced by the appellants apart from being clearly inadmissible cannot be relied on particularly in face of the clear admission of the Deputy Commissioner (P.W. 7) that he did not receive any written complaint from the officers concerned.
Another intrinsic circumstance which demolishes the case of the appellants about the presence of a mob headed by Satbir Singh and Anil Kumar (said to be relatives of respondent) is that P.W. 10 (A.S.I.) who was accompanying the D.C. said that he received the information that one of the candidates, viz., Col. Ram Singh, alongwith some persons had reached Kalaka polling booth and started intimidating the polling staff and the public. Here this witness is sadly contradicted by the statement of the Deputy Commissioner that the wireless message received by him was not in respect of Col. Ram Singh and his men but the message which the D.C.
actually received was that the disturbance was created by one Ajit Singh at the instance of the Congress (I) candidate. It is, therefore, impossible to accept the case of the appellants that the respondent and his companions on the one hand and Ajit Singh with a posse of his own men on the other had reached the Kalaka polling booth at almost the same time. Indeed, if this had been so there should have been a huge riot and a pitched battle between the two parties but no witness says so. The evidence merely shows that Col. Ram Singh had reached the place just after Anil Kumar and Satbir Singh alongwith their men left and after the Presiding Officer had set the matters right. me A.S.I.
(P.W.10) also says that 3-4 persons had made a complaint in writing to him but he had not seen those reports on the date when they were made to him but it must be on the file. The witness was shown the file of complaints and he admits thus:- "I have seen the file of complaints which has been shown to me now. That complaint is not in this complaint file." 424 What happened to the complaint received by the witness (P.W. 10) is not known or can be anybody's guess-perhaps the same vanished into thin air or may be was non-existent.
The matter does not rest here but there is one more inherent circumstance which completely falsifies the case of the appellants. The Presiding Officer was shown Ex. P-5 and he stated that he had not mentioned anything in the said document about intimidation of the voters and other persons.
He (P.W. 8) categorically states thus :- I have seen Ex. P-5. Column No. 20 (a) is to furnish information about "Intimidation of voters and other persons . I have not mentioned anything- in this column but have crossed it." Indeed, if there was any such intimidation, being the Presiding Officer he would not have crossed the column regarding the same. He admits that he had served in the Ahir High school which appears to have been patronized by Rao Birendra Singh and the possibility that this witness concealed the truth (as appears from his evidence) and made a statement regarding intimidation to oblige Rao Birendra Singh cannot be ruled out. This is because he merely denies knowledge that the Ahir School belonged to Rao Birendra Singh but he does not say affirmatively that Rao Birendra Singh had absolutely no connection with the said School. .
Coming now to the rest of the evidence of R.W. 1, he says that after the departure of Ajit Singh, Col. Ram Singh came to the Kalaka polling booth and he was alone at that time.
The respondent in the presence of R.W. 1 told the Presiding Officer that he should not be partial to any party and complained to him about the beating up of his polling agent.
Hari Singh (P.W. 8), the Presiding Officer assured the respondent that he would not permit anything further to happen. Thereafter, a number of people came there and stoned the polling booth and despite the protests of the witness and the Presiding Officer they tried to snatch the ballot box which was, however, protected by the Presiding Officer.
In the meantime, the police party arrived and the people who had gathered there sped away. Much was made by the counsel for the appellants regarding omission of the witness to make any report to the police. But not much turns upon this because the witness clearly admits that as the Presiding Officer was in charge of the whole show, he had reported the matter to him who had assured him that he would set things right. A number of 425 questions were put to him which are of not much significance because the answer of the witness was that whatever he had to say he had told his immediate superior, the Presiding Officer. It is obvious that K.W. 1 was neither a police officer nor a person holding any important job but was only a teacher in a school. Perhaps he thought that it was enough if he informed his superior (Presiding Officer) who would do the needful. The witness also admits that he had told the Presiding Officer about the visit of Ajit Singh and his companions and the trouble created by them but he was told by the Presiding Officer that he had recorded the same in the Diary; though in the presence of the witness he did not write any report nor did he handover any report to the police in his presence. The witness then goes on to state that after a few days of the elections, the police had obtained an affidavit from his but no attempt was made by the appellants to get that affidavit summoned, produced and exhibited in the case and in the absence of that the court is entitled to presume that whatever the witness may have said to the Presiding Officer was contained in affidavit also.
R.W. 2, Deen Dayal, who was a member of the polling staff, fully corroborates the evidence of R.W. 1 regarding the arrival of Ajit Singh armed with pistol and accompanied by a number of persons. He further corroborates that some of the companions of Ajit Singh removed the polling agent of Col. Ram Singh and then asked the witness and others to handover the ballot papers but as the witness resisted he was beaten up by Ajit Singh and others but on the intervention of the Presiding Officer the matter rested there. Thereafter, Col. Ram Singh came who was also assured by the Presiding Officer that needful would be done. A capital was made by the appellants before the court below as also here regarding the veracity of this witness because he did not make any report to the D.C. Or the S.D.O. about his being beaten up. As already mentioned, the witness was merely a teacher and he appears to have been satisfied by the assurance given to him by the Presiding Officer that necessary action would be taken. He further states that the D.C. Only talked to the Presiding Officer and not to any other member of the polling staff. This shows that the evidence of this witness is true.
The next witness on the point is RW 3 (Mohinder Singh) who was a police constable deputed to the spot to maintain law and order. The sequence of events that happened at the polling booth and which have been deposed to by the witness may be summarised thus:
426 (1) while the polling was going on, between 7.30 and 8.00 a.m., Ajit Singh arrived with his companions and tried to create all sorts of trouble.
(2) After the departure of Ajit Singh, Col. Ram Singh came alone and was assured by the Presiding Officer that he would not R allow any further trouble to take place.
(3) After Col. Ram Singh had left the place a number of people from the village came and wanted to poll forcibly, and 2-3 persons came out of the polling booth with a ballot box.
(4) He (RW 3) snatched the ballot box from the people and returned the same to Dhani Ram (RW 4).
The witness states that after some time the S.D.O. came there and after having a talk with the Polling Officer he went away. After about half-an-hour or 45 minutes of the departure of the S.D.O., the D.C. arrived and on his intervention the polling again started at about 12 mid-day.
The witness vehemently denied that his statement was recorded by the D.C. in a tape-recorder and said that the voice recorded in the tape-recorder (which was played to him in court) was not his. He even goes to the extent of saying that he did not see any tape-recorder with the D.C. nor did he have any talk with him.
The following important points may be noted from his testimony - 1) The sequences of events narrated by him gives sufficient strength to the case of the respondent.
2) his positive evidence that the voice in the cassette was not his.
The witness was afterall a police constable (a government official) and would not have the course make a false statement before the D.C. Moreover, evey the D.C. in his statement has frankly admitted that he was not in a position to identify the voice of this witness or for that matter of others at the time of his deposition. Thus, in the eye of law, there is no legal evidence at all to prove that the voice Recorded in. the tape-recorder was the voice of this particular witness.
The next witness is RW 4 (Dhani Ram) who was also one of the members of tile polling staff and a teacher in a Government 427 Primary School. He fully corroborates the story given by RWs 1 and 3 and also gives the sequence of events referred to above while dealing with the evidence of RW 3. His evidence does not appear to be of much consequence. At any rate the learned High Court has fully discussed his evidence and we agree with the conclusions arrived at by the High Court in this respect.
RW 5 appears to be a voter of the Kalaka polling booth.
He has been examined to prove the fact that when Ajit Singh and his party came to the booth, one Tula Ram who was a polling agent of Col. Ram Singh and real brother of RW 5, was beaten up by Ajit Singh and his party and when he tried to rescue him he was also beaten up and their clothes were torn and it was with great difficulty that Mohinder Singh (RW 3) who was on duty rescued him and his brother from the clutches of Ajit Sin
