# RAM SINGH & ORS • v. COL. RAM SINGH

- **Citation:** [1985] Supp. 2 S.C.R. 399
- **Court:** Supreme Court of India
- **Decided:** 1985-08-07
- **Bench:** S· 1'1\Jrtaza Fazal Ali, A. Varadarajan, Sabyasachi Hukharji Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-singh-ors-v-col-ram-singh-9222
- **Pages:** 109

## Headnote

B
Representation of the People Act 1951: Corrupt Practice -
How should be·proved.
Evidence Act -
Tape recorded statement3 -
When could be
.used as evidence -
Safeguards to be taken in using tape recorded
C
evider..ce.
In the general election to the State Assembly held in 1982
the appellants a.pd the respondents were the candidate•.-
The
respondent was
declared elected to the Assembly.
In their
election petition, the appellants alleged that the respondent was
D
guilty of corrupt practice and booth capturing in that he went to
two polling booths alongwith 50 to 60 persons, armed with guns,
sticks and swords, threatened and pressurised the voters and as a
result of the serious threats held out by the respondent and his
men the voters ran away without exercising their franchise; that
the respondent and his companfons entered the. polling booths and
terrorised the Polling Officer and polling agents•. assaulted the
E
polling agents at gun point, snatched away the ballot papers and
marking them in the respondent's favour, cast the votes in the
ballot boxes and thumb marked the counter foil of ballot papers.
They sought a declaration that the respondents election was void
under section 100 of the Representation of the People Act 1951. A
large number of witnesses were examined by both sides. The Deputy
F
Comnissioner who was the Returning Officer of the constituency
recorded on a tape recorder the statements of some persons
iucluding the polling agents,
the Polling Officer and
the
respo~ent and of himself.
The High Court held that the evidence of the witnesses and
G
the petitioners on these points was not corroborated, no effort
was made by the petitioners to connect the
respondent with the
ownership of vehicles purported to have been used by him, that
the witnesses were drawing more upon their imagination to make
out stories about the detention of the persons and forcible
polling at that polling station by the respondent and that the
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400
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
petitioners failed to prove the charge beyond reasonable doubt.
The court also held that the role assigned to the respondent by
the petitioners has not been proved.
Dismissing the appeal
HEW: [Per Fazal Ali J, Sabyasachi Mukharji J concurring
and Varadarajan J dissenting] The appellants have failed to prove
their case that the respondent was guilty of indulging in corrupt
practices. [446 Fj
Clear and specific allegations with facts and figures
regarding the corrupt practices indulged in by the respondent
have not been alleged in the first part of the election petition.
The
petitioners should have given definitive and specific
allegations regarding the nature of fraud or the corrupt
practices conmitted by the respondent as briefly as possible in
the main part of the petition. [407 E-F]
· The appellants have not established that the respondent was
present at the time of the incidents at the two booths. Once this
is not proved, the appellants have failed. It is settled law that
corrupt practices must be cOC!'litted by the candidate or his
polling agent or by others with the implicit or explicit consent
of the candidate or his polling agent.
Where the supporters of
the candidate indulged in corrupt practices on their own, without
the authority from the candidate the election cannot be voided,
and this factor is conspicuously absent in this case.
It is
also settled law that the charge of corrupt practice has to be
proved by convincing evidence and not merely by preponderance of
probabilities. As the charge of corrupt practice is in the nature
of a criminal charge, it is for the party who sets up the plea of
undue influence to prove it, to the hilt and the manner of proof
should be the same as in a criminal case. [445 F-H]
As regards the evidence recorded on a tape Recor,per or
other mechanical process the preponderance of authorities is in
favour of the admissibility of the statements subject to certain
safeguards viz., (l) the voice of the spea

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399
RAM SINGH & ORS •.
A
v.
COL. RAM SINGH
AUGUST 7, 1985
[S· 1'1\JRTAZA FAZAL ALI, A. VARADARAJAN AND SABYASACHI HUKHARJI JJ.j
B
Representation of the People Act 1951: Corrupt Practice -
How should be·proved.
Evidence Act -
Tape recorded statement3 -
When could be
.used as evidence -
Safeguards to be taken in using tape recorded
C
evider..ce.
In the general election to the State Assembly held in 1982
the appellants a.pd the respondents were the candidate•.-
The
respondent was
declared elected to the Assembly.
In their
election petition, the appellants alleged that the respondent was
D
guilty of corrupt practice and booth capturing in that he went to
two polling booths alongwith 50 to 60 persons, armed with guns,
sticks and swords, threatened and pressurised the voters and as a
result of the serious threats held out by the respondent and his
men the voters ran away without exercising their franchise; that
the respondent and his companfons entered the. polling booths and
terrorised the Polling Officer and polling agents•. assaulted the
E
polling agents at gun point, snatched away the ballot papers and
marking them in the respondent's favour, cast the votes in the
ballot boxes and thumb marked the counter foil of ballot papers.
They sought a declaration that the respondents election was void
under section 100 of the Representation of the People Act 1951. A
large number of witnesses were examined by both sides. The Deputy
F
Comnissioner who was the Returning Officer of the constituency
recorded on a tape recorder the statements of some persons
iucluding the polling agents,
the Polling Officer and
the
respo~ent and of himself.
The High Court held that the evidence of the witnesses and
G
the petitioners on these points was not corroborated, no effort
was made by the petitioners to connect the
respondent with the
ownership of vehicles purported to have been used by him, that
the witnesses were drawing more upon their imagination to make
out stories about the detention of the persons and forcible
polling at that polling station by the respondent and that the
P
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SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
petitioners failed to prove the charge beyond reasonable doubt.
The court also held that the role assigned to the respondent by
the petitioners has not been proved.
Dismissing the appeal
HEW: [Per Fazal Ali J, Sabyasachi Mukharji J concurring
and Varadarajan J dissenting] The appellants have failed to prove
their case that the respondent was guilty of indulging in corrupt
practices. [446 Fj
Clear and specific allegations with facts and figures
regarding the corrupt practices indulged in by the respondent
have not been alleged in the first part of the election petition.
The
petitioners should have given definitive and specific
allegations regarding the nature of fraud or the corrupt
practices conmitted by the respondent as briefly as possible in
the main part of the petition. [407 E-F]
· The appellants have not established that the respondent was
present at the time of the incidents at the two booths. Once this
is not proved, the appellants have failed. It is settled law that
corrupt practices must be cOC!'litted by the candidate or his
polling agent or by others with the implicit or explicit consent
of the candidate or his polling agent.
Where the supporters of
the candidate indulged in corrupt practices on their own, without
the authority from the candidate the election cannot be voided,
and this factor is conspicuously absent in this case.
It is
also settled law that the charge of corrupt practice has to be
proved by convincing evidence and not merely by preponderance of
probabilities. As the charge of corrupt practice is in the nature
of a criminal charge, it is for the party who sets up the plea of
undue influence to prove it, to the hilt and the manner of proof
should be the same as in a criminal case. [445 F-H]
As regards the evidence recorded on a tape Recor,per or
other mechanical process the preponderance of authorities is in
favour of the admissibility of the statements subject to certain
safeguards viz., (l) the voice of the speaker must be identified
by the maker of the record or by others who recognise his voice.
· Where the voice is denied by the maker it will require very
strict proof to determine whether or not it was really the voice
of the speaker. (414 EJ
(2) The voice of the speaker should be audible and not
distorted by other sounds or disturbances. [414 E]
RAM SlNbH v. COL. RAM SINGH
401
(3) The accuracy of the tape recorded stat~nt has to be
proved by the maker of the record by s~tisfactory evidence.[414 F]
( 4) Every possibility of tampering with or erasure of a
part of the tape recorded statement must be ruled out; [414 G]
(5) The statement 1D11St. be relevant according to the rules
of evidence and [414 H]
(6) The
recorded cassette must be carefully sealed and
kept in safe custody. [415 A]
R. v.
llaqsud All [1975] 2 All E.R. 464 and R. v. llobeon
[1972] 2 All E.R. 699, referred to.
In the instant case, the voices recorded at a number of
places are not very clear and there is noise while the statements
were being recorded by the Deputy Colllnissioner. A gOod part of
the statement recorded on the cassette has been denied not only
by the respondent but also the respondent's witnesses. No other
witness has come forward to depose identification of the voice of
the respondent or of witnesses. [444 E]
There are erasures here and there in the tape and besides
the voices recorded being not very clear, it is hazardous to base
a decision on such evidence.
The Deputy Commissioner recorded
th'll statements in violation of the instructions of the.Government
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. Respondent's 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 1D11ch
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 l!ukbarji,J. concurring: While accepting the
tape
recorded
sta~ements the court should proceed cautiously. The
A
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402
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
A
evidence should
be
examiued
on
the analogy of mutilated
documents. If the tape recording is not coherent or distinct
or clear it should not be relied upon. [502 B,D-E]
B
R. v. Maqsud Ali [1975] 2 All E.R. 464 and R. v. Bobson.
[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 outweigh,9 the evidentiary value of .the recording. [5C4 CJ
Shri N. Sri llama Reddy
etc.
v. Shri V.V. Giri [1971]1
c
s.c.R. 399 and R.H. l!alkant v.
State of l!aharashtra [1973] 2
S.C.R. 417, H.Cbenoa ReddY v. V.Rem•cbaodra Rao & Aor. [1972]
E.L.R. Vol. 40, 390; Ram Sharan Yadav v. Thakur Muneshwar Nath
Singh & Ors. [1984] 4 s.c.c. 649; C.A.No. 3419/81 decided on
29.11.84, referred to.
It is settled law that the charge of corrupt practice is in
D
the nature of a criminal charge which if proved entails a heaVY
penalty in the form of disqualifica.tion and that a more cautious
approach must be made in order to prove the charge of undue
influence levelled by the defeated candidate. In the instant
case, it canoot be said that the appellants had proved their case
to the extent required to succeed. [506 DJ
E
Where the question is whether the oral testimony should be
believed · "r not the views of the trial judge should not be
lightly brushed aside, because the trial judge has the advantage
of judging the manner and demeanour of the witness which
advantage the Appellate Court does not enjoy.
In view of the
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.:iature of the evidence on record there is no reason to disagree
with the appraisal of the evidence by the trial judge. [506 G]
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• lloti Lal v. Qumdra Pratap 'Iivari & Ors. A.I.R. 1975 s.c.
1178 and llagbuvir Singh
v.
Raglmbir Singb Kuslnraha A.J.R,
1970 s.c. 442, referred to.
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
RAM SINGH v. COL. RAM SINGH
403
could not be made out on account of noise and interference not
only outside but also inside the Polling Station. On the contrary
A
under the circWDStances of this case great relevance has to be
placed on the tape and its contents not only for corroborating
the evidence of the District Comnissioner and the Presiding
Officer to the extent they go but alco as ~
gestae_ evidenee of
the first part of the incident. The Trial Judge waa not justified
in rejecting the tape record and transcription. The appellants
B
have proved satisfactorily and beyond reasonable doubt the firs~
part of the incident in one of the Polling Stations, that the
respondent went armed with a rifle with 25 or 30 companions and
entered . the Polling_ Station with 4 or 5 armed companions and
threatened the Presiding Officer and others who were present
there with the use of force and got some ballot papers marked in
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favour of the respondent polled forcibly by his companions in the
ballot box and that they left the Polling Station on seeing the
villagers and the police coming towards the Polling Station. The
discrepency in evidenc_e regarding the time of the incident is not
material. [478 A-C, 483 E-484 A]
Secondly, the Deputy Comnissioner recorded the conversstion
which he had with the presiding Officer but some portion thereof
waa erased by his own voice by inadvertance. After recording, his
stenographer prepared the transcript in his office most of it
under his supervision and though he was temporarily absent to
attend to some other work he compared it with the original tape
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and found it to be correct. The tape, the tape recorder and the
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transcript remained with him throughout and were not deposited by
him in the record room and there was no possibility of tampering.
[496 F-497 A]
The respondent bad
managed to keep away from the court
material evidence by way of the original report of the Presiding
F
Officer.
He had cited a person as his witness to depose about
his case but did not examine him for that purpose and had called
him only for the purpose of production of some record, without
·any oath being administered to him. l!e had denied to the
appellants the opportunity to cross-examine that witness. The
respondent had come forward with a new case of alleged booth
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capturing .and forcible polling of
bogus
votes
after
the
appellants
had
completed the
examination of their'witnesses
to whom no such suggestion was made in the cross-examination.
From the evidence on record two views are not .possible. The
appellants have proved beyond reasonable doubt that the respondent had cOlllllitted the corrupt practices alleged against him. No
H
lenient view can be taken in this case merely because the
election petition is directed against the returned candidate.
[499 G-500 BJ
404
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
A
CIVlL APPELLATE JURISDICTION: Civil Appeal No. 6623 of 1983.
From the Judgment and Order dated 3.6.1983 of the Punjab &
Haryana High Court in E.P. 13/82.
Kapil Sibal, Gopi .Chand, K.C. Sharma, R. Karanjawala, Mrs.
B
M.
Karanjawala, Miss Neethu
& Mrs.
Madhu Tewatia for the
Appellants.
K.G. Bhagat, Additional Solicitor General, R.Venkataramani,
Ranbir Singh Yadav, P. S. Pradhan, Chandra Shekhar Panda and A.
Mariaroutham for the Respondent.
c
The following Judgments were delivered:
FAZAL ALI, J.
The election process in our country has
become an extremely complex and complicated system and indeed a
very difficult and delicate affair. Sometimes, the electionpetitioner,
who
has
lost the election from a
particular
constituency, makes out on the surface such a probable feature
D
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
E
opened, and the veil is lifted, the face of falsehood disappears
and truth comes out victorious.
In such cases the judicial process and the judicial approach
has to be both pragmatic and progressive so that the deepest
possible probe is made to get at the real truth out of a heap of
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dust and cloud. This is indeed a herculean task and unless the
court is extremely careful and vigilant, the truth may be so
completely camouflaged that falsehood may look like real truth.
Of course, the advoca'cy of the counsel tor the parties does
play a very important role in unveiling the truth and in
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borderline cases the courts have to undertake the onerous task of
"disengaging the truth from falsehood, to separate the chaff from
the grain". In our opinion, all said and done, if two views are
reasonably possible one in favour of the elected candidate and
the other against him Courts should not interfere with the
expensive electoral process and instead of setting at naught the
H
RAM SINGH v. COL. RAM SINGH (FAZAL ALI, J. J
405
election of the winning candidate should uphold his election
A
giving hini benefit of the doubt.
This is more
so where
allegations of fraud or undue influence are made.
There observations have been made by us in order to decide
election cases with the greatest amount of care and caution,
consideration and circumspection De.cause if one false step is
B
taken, it may cause havoc to the person who .loses.
It is not necessary for us to dwell 9n or narrate the facts
of the case of the parties which have detailed by the High Court
in very clear arid unambiguous terms. To repeat the same all over
again might frustrate the very object of deciding election
c
petitions with utmost expedition. Even so, it may be necessary
for us to give a bird's ~ye view and a grotesque picture of the
impol'tant and dominant elements of the controversy between the
parties in order to understand which of the two cases presented
before us is true.
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 uf understanding the truth and the spirit of
the matter a scientific dichotomy of the case has to be made
which may include the following 'factor:
a. Time and manner of voting,
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SUPl\EME COURT REPORTS
[1985] SUPP.2 s.c.R.
b. allegation of booth capturing,
c. role played by the electoral authorities lt'ho m.q_y
have acted honestly yet the possibility
of their
falling an easy prey to the machinations of one
side
or the other cannot be safely eliminated which may
lead to an
should
be
possibility
temptation,
error of Judgment on their
fully
guarded
against
as
of their being attracted by
part. This
also
the
any false
d. Where the proof of a corrupt practice is the very
cornerstone and the bedrock of the case set against
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the successful candidate, the court shoula be doubly
sure that it is not lured to fall in the labyrfoth of
chaos and confusion by easily holding that the corrupt
practice alleged has been proved.
With this short prelude, we would now proceed to give an
exhaustive glimpse of the contentions raised before us by the
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parties.
l>efore,
however,
we
do
that
we
must
record our
appreciation and gratefulness to the counsel for both the parties
who in a big case like this had been fair enough to confine their
argwnents only to two polling stations, viz., Kalaka and Burthal
Jat, .which has rendered our task much easier besides saving a lot
of time, labour and expense. We also feel indebted to the learned
E
counsel for the parties for having argued the Case with dexterity
and brevity which, as it is said, is the 'soul of wit'.
The present appeal arises out of an election held on May
19,1982 to the Haryana Vidhan Sabha from Rewari constituency
No.86. ln view of the concession made by the counsel for the
F
parties, we are concerned in this appeal only with two polling
booths, viz., Kalak.a and Burthal Jat. It appears that there wer~
as many as five candidates and Col. Ram Singh [respondentj seems
to have been pitted against the aforesaid candidates.
The bedrock of the allegations made by the appellants
G
against the_ respondent was that he has been painted to be a most
undependable and unreliable person from the moral point of view
as having changed sides with one party or the other to suit his
needs and divided his loyalties by playing a dirty game of
politics in that he changed sides without any fixed ideology and
the only principle which, according to the
appella.~ts, the
H
respondent had·, was lust for power. It may be pertinent to note
'
l<AM SINGH v. COL. RAH SINGH iFAZAL AU, J.j·
4U7
here that the respondent had also alleged- that Rao .Birendra
Singh, who, according to him, was the evil genius of the whole
show, had set up his sister ,1 SUIIi.itra bai, to contest the e~ection
in order to get the respondent out of the way. However, we are
not at all concerned with any of these matters or allegations
which appear to be foreigri to the scope of the present ·appeals
nor ar~ these matters of which any serious notice can be taken
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 indalging in undue influence or corrupt practices
which nrust be proved satisfactoriiy beyond reasonable doubt.
So far so good. A conspicuous fact may however be noticed
here, viz., tha_t clear and s'pecific allegations with facts and
figures regarding the corrupt practices indulged in by the
respondent have not , been alleged in· the first part of the
election petition itself. The allegation however,
have been
detailed in the statement . of particular submitted
by
the
appellants, who were certainly entitled to do so but we should
have expected some definitive and specific ~!legations regarding
the nature of the fraud Or the cornipt practices conmitted by the
respondent as briefly as possible in the main part of the
petition itself. Therefore, this is doubtless a relevant factor.
in Judging the truth of the particulars mentioned in the
statement more particularly when the onus of proving the corrupt
practice lies entirely on the election petitioner who must
demonstrably prove the same.
And now a pointed peep into the salient features of the.
facts of the case •. To begin with, the argwnents of the appellants
are confined only to the Kalaka and Burthal Jat polling booths •
.Before we
proceed further we might at this stage bri"ef ly
indica~e, shorn of details·, the nature, character and the extent
of the allegations regarding the corrupt practices and booth
capturing alleged to have been indulged in by the respondent on
the basis of which the appellants seek to set aside the election
of the respondent.
A
B
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408
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
A
As regards Kalaka, (1) it was alleged that the respondent
appeared at the scene at aboct 10.30 a.m. with 50-60 persons and
was himself armed with a gun while. his companions had guns,
eticks and swords.
Hy sheer show of force, the voters were
threatened and
pre~surised :is a result of which they ran away
without exercising their votes. In other words, the allegation is
B
that as a result of the serious threat held out
by the
respondent, the voters were deprived of t.heir valuable right of
frenchise.
(2) The respondent alongwith his companions enter the booth
and terrorised the polling officer as also the polling agents
(Basti
Ram &
Ishwar) of the Congress I
candidate
who
were
C
assaulted by the respondent by the bu~t end of the barrel of his
gun.
(3) The respondent and others at gun point snatched away
about 50 ballot papers from the polling staff and after marking
them in his (respondent) favour put them into the ballot box.
D
(4) The respondent and his ·companions at his (respondent)
instance thwnbmarked tte counterfoils of the ballot papers also.
As regards Burtbal booth, (1) the appellants alleged that
almost the same modus operandi was adopte.d by the respondent and
he directed his supporters to prevent the voters frore entering
E
the
booth,
thereby
depriving
them
of
the
opportunlty of
exercising their right to vote.
(2) Not content with this, the respondentleft
behind his
relations Anil Kumar and Satbir Singh to carry on the aforesaid
activities and gave further instructions that the maximum .number
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of. votes should . be polled in his favour.
G
Thus,
so far as Kalaka and tlurthal polling booths are
concerned, twu important corrupt practices have been alleged by
the appellants:-
(1) forcible polling of votes and
(2) preventing the geauine voters from exercising their
right to vote.
It manifestly follows that once it is proved that the
H
respondent was not present at the time of the incidents at Kalaka
(
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J. j
';09
and Burthal, the case of the appellants falls like a pack of
cards because it is well settled by several authorities of this
Court that the corrupt practice must
be cornmltted
by
the
candidate or his polling agent or by others with the implicit or
explicit c.onsent of the candidate or his polling agent. Where,
however, the supporters or a candidate indulge in a corrupt
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 evidenc-e we
would like to refer to the authc.rities of this Court and other
courts regarding
the necessary precautions
to
be
taken in
approaching evidence in election cases and the principles laid
down
by us.
We
would also deal with
the extent of the
admissibility of t'ne evidence of the tape recorded statements
alleged to have
been made
by some of the w.itnesses in the
taperecofder recorded by ?.W. 7, the Deputy Commissioner.
As regards the principles enunciat~d by this Court regarding
the nature and the standard of proof of corrupt practice alleged
by .an election petitioner against the successful candidate,
though it is not necessary for us to burden our judgment with
multiplicity of authorities yet the ratio of some of the
important decisions which are directly in point .!Ddy be briefly
stated.
To begin with, as far back as 1959 in Ram Dial v. Sant Lal
& Ors., [1959J 2 supp. s.c.R. 748, the Court observed thus:
"What is material under the Indian law, is not the
actual effect produced, but the doing of such acts as
a.re calculated to interfere with the free exercise of
any electoral rlght. Decisions of the English Courts,
based on the words of the English Statute, which are
not strictly in ~
~t'=ria with "the words of the
Indian
statute,
cannot,
therefore,
be
used
as
precedents in this country."
In Samant N. Balakrishna, etc. v. George Fernandez & Ors.
etc •• ,
[1969] 3 s.c.R. 603, this Court while dwelling on the
principles to be followed in election cases pithily point out
thus:
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SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
A
"The principle of law is settled that consent may be
inferred from circumstantial evidence but the circtuDstances must point unerringly to the conclusion and
must not admit of any other explanation.
Although the
trial of an election petition is made in accordance
with the Code of Civil Proce<iure, it has been laid
B
down that a corrupt practice must be proved in the
same way as a criminal charge is proved.
In other
words,
the election petitioner must exclede every
hypothesis except that of guilt on the part of the
returned candidate ·Or his election agent."
- ln Ch. Razik Ram v. Ch. Jaswant Singh Chauhan & Ors. [1975 j
C
4 s.c.c. 769, this Court laid down _the following principles:
"Before considering as to whether the charges of
corrupt practice were established, it is important to
remember the standard of proof required in such cases.
It is well settled that a charge of corrupt practice
is substantially akin _to
a criminal charge.
The
D
comi:nission of a corrupt practice entails
serious
penal consequences. It not only vitiates the election
of the candidate concerned but also disqualifies him
from taking part in elections for a considerably long
time. Thus, the trial of an election petition being in
the nature of an accusation, bearing the indelible
E
stamp of quaSi-crim.inal action, the standard of proof
is the same. as in a criminal trial.
Secondly, even if the nature of the trial of an election petition is not the same in all respects as that
of a criminal trial, the burden of proving each and
F
every ingredient of the charge in an election petition
remains on the petitioner. If a fact constituting or
relevant to such an ingredient is pre-eminently within
the knowledge of the respondent, it may affect the
quantum qf its p·roof but does Ilot relieve the petitioner of his primary burden."
G
H
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
RAM SINGH'v. COL. RAM SINGH [FAZAJ, ALI, J.j
411
have been committed as the election petitioners did
not examine themselves during the course of .the trial
in the High Court. There was however no such obligation on them, and the evidence which the e.lection
petitioner_s were able to produce at the trial could
not have been rejected for any such fanciful reason
when there _was nothing to show that the election peti -
tioners were able to give useful evidence to their
personal knowledge but stayed away purposely."
In· the case of Sultan Salalmddin Clwasi v. Mohd.
Osman
Shaheed & Ors. [1980j J s.c.c. 281 to which one of us (Fazal
Ali, J.) was a pa~ty,_ this Court observed thus:-
"It ; s now well settled by a large catena of the
authorities of this Court that a charge of courrupt
practice must be proved to the~ hilt., the standard of
·proof of such allegation is the same as a charge of
fraud in a criminal case."
In Ram Sharan Yadav v. Thakur Hunesbwar Nath Singh & Ors.
[l984j 4 s.c.c. 649, to which two of us were parties, this Court
observed thus:
"The sum and substance of these decisions is thB.t a
charge of corrupt practice has to be proved by convincing evidence and not merely
by preponderance of
probabilitie~. As the charge of a corrupt practice is
in the nature Of ·a criminal charge, it is for the
party who sets up the plea of 'undue influence' to
prove it to the hilt beyond reasonable doubt and the
manner of proof should be the same as for an offence
in a criminal case. This is more so because once it is
proved to the satisfaction of· a court that a canrlidate
has been guilty of 1 ur,due in£ luence 1 then he is likely
to be disqualified for a period of six years or such
other period dS the authority concerned under Section
8-A of the Act may· think fit.
Hy and ~arge, 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·,
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412
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SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
(2) the surrounding circumstances and the improbabilities 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."
C
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 rW 7 which included
the statement of the respondent, in order to allay all doubts and
D
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
E
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 proviF
ded
certain conditions
and
safeguard are proved
to
the
satisfaction of the court. We now proceed to discuss the various
ramifications and the repercussions of this part of the case.
This Court had the occasion to go into this question in a
few cases and ,it will be useful to cite some of the decisions. In
G
Yusufalli Eemail Nagree v. State of Maharashtra [1967] 3 s.c.R.
720, this Court, speaking through Bachawat, J. observed thus:
"If a statement is relevant, an accurate tape record
of the statement is also relevant and admissible. The
time and place and accuracy of the recording DIJSt be
H
prowd by a competent witness and the voices 11111St be
Rk'l SINGH v. COL. RAM SlNGH [FAZAL ALI, J.]
413
properly Jdentified. One of the features of magnetic
tape recording is the a bill ty to erase and re-use t.he
recording mediw. Because of this facility of erasure
and
re-use,
the evidence must
be
received with
caution~ The court must be satisfied beyond reasonable
doubt that the record has not been tampered with.
The tape was not sealed and was kept io the custody of
Mahajan. The absence of sealing oal:urally gives rise
to the argunent that the recording mediUll might have
been tampered with before it was replayed." ,
(Empha5is ours)·
In the case of N •. Sri Rama lleddy,£tc. v. V.V.Giri [1971] 1
s.c.R. 399, the following observations were made:
"Having due regard to the decisions referred to abo.ve,
it is clear that a prev.ious statement, made by a
person and recorded on tape, can be used not only to
corroborate the evidence giVen by the witness in Court
but also to contradict the. evidence given before the
Court, as well as to test the veracity of the witness
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and also to impeach his impartiality."
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In R.H. llalkani v. State of Maharashtra [1973] 2 s.c.R. 417,
this Court laid down the essential conditions which, if fulfiled
or satisfied, would .make a tape-recorded statement admissible
otherwise not; and observed t.hus:
"Tape
recorded conversation is admissible provided
first the conversation is relevant to the matters in
issue; secondly, there is identification of the voice;
and, thirdly, the accuracy of the tape recorded con-
'versation is proved by elimfoatiog the possibility of
F
erasing the tapa record."
G
(Emphasis supplied)
In Ziyauddin Burharuiddfo Bukhari v. Bri}llDhan Rmwtass Kebra
u Ors., [1975] Supp. S.C.R. 281, Beg,J. (as he then was) made the
following observations:
"We think that the High Court was quite right in holding
that
the
tape
records
of
speeches
were
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414
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SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
"documents", as defined by Section 3 of the Evidence
Act,
which
stood
on
no
different
footing than
photographs, and that they were admissible in evidence
on satisfyir.g the following conditions:
(a) The voice of the person alleged to be speaking
111JSt be duly identified by the maker of the record or
by others who knew it.
(b) Accuracy of what.was actually recorded had to be
proved by the maker of the record and satisfactory
evidence, direct or circumstance.a, had to be there so
as to rule out possibilities of tampering with t:he
record.
(c) The subject matter recorded had to be shown to be
relevant according to rules of relevancy found ln the
Evidence Act."
(Emphasis ours)
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Thus, so far as this Court is concerned the conditions for
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admissibility of a tape recorci.ed statement m..-'ly be stated as
follows:
1) The voice of the speaker mu•t be duly identified by
the maker of the record or by others who recognise his
voice. In other words, it manifestly follows as a
logical corollary that the arst condition for the
admissibility of such a statement is to identify the
voice of the speaker. Wl1ere the vo::.ce has been denied
by the maker it will req':lire very strick proof to
determine whether or not it was really the volce of
the speaker.
7.) The accuracy of the tape recorded statement has to
be proved by the maker of the record by satisfactory
evidence - direct or circl.llllStantial.
3) Every possibility of tampering with or erasure of a
part of a tape recorded stat'=ment must be. ruled out
otherwise it may render the said statement out of context and, therefore, inadmissible..
4) The statement must be relevant according to the
rules of Evidence Act.
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RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.]
415
5) The recorded cassette must be carefully sealed and
kept in safe or official custody.
6) The voice of the speaker should be clearly audible
and not lost or distorted by other sounds or disturbances.
The view taken by this court on the question of admissi -
bility of tape recorded evidence finds full support from both
English and American authorities. In R. v. Haqeud Ali, [1965]
All. E.R. 464., Marshall, J., observed thus:-
''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.
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SUPREME COURT REPORTS
[1985] SUPP..2. s.c.R.
During the course of the evidence and argllment on the
issue of admissibility the recordings were
;>layed
back many times. In the end I came to the view that in
continuity, clarity and coherence their quality was,
at the least, adequate to enable the jury to form a
fair and reliable assessment of the conversation which
were recorded and that with an appropriate warning the
jury would not be
led
into
and
interpretation
unjustifiably adverse
to
the accused. Accordingly,
so far as ·the matter was one of discretion, I was
satisfied
that
no
injustice could
arise
from
admitting the tapes in evidence and that they ought
not to be excluded on this basis."
rn· Amercian Jurisprudence 2nd (Vol.29) the learned author on
a conspectus of the authorities referred to in the footnote in
regard to the admissibility of tape recorded statements·at page
494 observes thus:
"The cases are in general agreement as. to what
cons.titutes a proper foundation for the iidmission of a
sound recording, and indicate a reasonably strict
adherence to the rules prescribed for testing the
admissibility of recordings, which have been outlined
as follows:
(1) a showing that the recording device was capable of
taking testimony;
(2) a showing that the operator <if 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.
--
RAM SINGH v. COL. RAM SINGH [FAZAL ALI, J.]
417
•••• However, the recording may
is so inaudible and indistinct
speclliate as E£. what was said>'
(Emphasis ours)
We would, therefore, have to test the admissibility of the
tape recorded statements of the respondent, given in the High
Court as also in this Court, in the light of the various tests
and safeg\lards laid down by this Court and other Coutts, referred
to above• We shall give a detailed survey of ·the nature and the
character of .the statement of the respondent in a separate 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 stmnnary of the nature of the
evidence produced by the parties. As already stated counsel for
the parties confined their arguments only to the validity of the
election relating to Kalaka and Butthal Jat polll.ng booths.
By virtue of· a notification dated 17 .4.82 the Governor of
Haryana . called upon the voters to elect Members to the Vidhan
Sabtia.
The last date for filing the .nomination papers was
24.4.82, the date for scrutiny was 26.4.82 and 28.4.82 was the
last date for withdrawal of candidature.
The polling was held on
19.5.82 and the counting of votes took place on 20.5.82. It is
the last date with which we are mainly concerned.