- Bench: Fazalali, Syed Murtaza
- Appellant: Ram Singh & Ors
- Respondent: Col Ram Singh
Issues
- Whether the incident in and at the Kalaka polling station alleged by the appellants is true and has been proved beyond reasonable doubt?
- Whether the incident alleged in and at the Kalaka polling station does not constitute corrupt practice within the meaning of the Act? and
- Whether the incident at Burthal Jat polling station alleged by the appellant is true and had been proved beyond reasonable doubt?
Facts
- The respondent of this case was contesting elections to the Harayana Vidhan Sabha along with the appellant.
- It was alleged that on the date of polling, the respondent along with some men attacked the poll booth with weapons and marked the ballot papers in the favor of the respondent.
- When this case came before the Court, the many witnesses were examined and their statements were recorded by the Deputy Commissioner who was also the Returning Officer of the Constituency.
- The High Court ruled that the evidences provided could not prove the respondent’s guilt beyond reasonable doubt. The voices recorded were not clear and none of the witnesses had come forward to recognize the voice of the respondent. It was held that it is hazardous to base a decision on such evidence.
Appellant’s contentions
- The respondent with his companions entered the polling booth with arms and weapons and threated the electors.
- The voters were terrorized and were made to quit voting.
- The respondent with some companions brandished the gun towards the Presiding Officer, polling staff and other candidates and ordered them to stand still.
- The respondent and his companions attempted to interfere with the electoral rights of the electors present at the booth.
Respondent’s contentions
- The respondent denied the happening of any such incident at the polling booth.
- It is wholly incorrect that any kind of jeep with which he is supposed to have any connections carried any weapons along with the allegation that such a jeep was taken into custody by some official.
- The allegation that Anil Kumar and Satbir Singh are related to the respondent was admitted but the allegation of them doing any corrupt practices is false.
- The FIR lodged does not support the appellant’s allegation that any kind of tampering was done by the respondent with the electoral right of any elector.
Judgment
The Court held that the tape recorded statements were inadmissible in evidence and that such an evidence would not have any probative value to inspire any confidence. The appellants could not prove the guilt of the respondent beyond reasonable doubt that he was engaged in any corrupt practices.
The following was held by the Supreme Court:
“On a careful consideration, therefore, of the evidence, circumstances, documents and probabilities of the case, we are fully satisfied that the appellants have failed to prove their case that the respondent was guilty of indulging in corrupt practices. We, therefore, affirm the judgment of the High Court and dismiss the appeal but in the circumstances without any order as to costs.”
Relevant Paragraphs
The appellants have failed to prove their case that the respondent was guilty of indulging in corrupt practices. 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.
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.
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.
(2) The voice of the speaker should be audible and not distorted by other sounds or disturbances.
(3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.
(4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out.
(5) The statement must be relevant according to the rules of evidence.
(6) The recorded cassette must be carefully sealed and kept in safe custody.
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.
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