Tukaram S. Dighole vs Manikrao Shivaji Kokate on 5 February, 2010

     IN THE SUPREME COURT OF INDIA

                  CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NO.2928 OF 2008

TUKARAM S. DIGHOLE -- APPELLANT   VERSUS

 MANIKRAO SHIVAJI KOKATE -- RESPONDENT     JUDGMENT

 D.K. JAIN, J.:



1. This appeal under Section 116-A of the Representation of the  People Act,
1951 (for short "the Act") is directed against the  final judgment and
order dated 25th January, 2008, rendered by  the High Court of Judicature at
Bombay in Election Petition  No.13 of 2004, whereby the election petition
preferred by the  appellant, challenging the election of the respondent to the
House of People (Lok Sabha) from 69, Sinnar Parliamentary  Constituency in the
State of Maharashtra has been dismissed.

 2. Briefly stated, the material facts giving rise to the present  appeal are as
under:

     Election to the said parliamentary constituency was held on 13th  October,
2004 and the results were declared on 16th October, 2004.  The appellant
contested the elections as a candidate of NCP-  Congress -- R.P.I. alliance,
whereas the respondent contested the  election as a Shiv Sena -- Bharatiya Janta
Party alliance candidate.  Out of a total of 1,35,063 votes cast in the
election, while the  respondent secured 67,556 votes, the appellant could manage
47,593 votes. Resultantly, the respondent was declared elected.

3. Not being satisfied with the election result, the appellant  preferred an
election petition, challenging the election on several  grounds and for
declaring the said election to be void in terms of  Sections 100(1)(b),
100(1)(d)(ii) and 100(1)(d)(iv) of the Act, with  consequential relief of
declaring the appellant as elected in terms of  Section 101(b) of the Act.



4. The election petition was contested by the respondent denying  all the
allegations. It was pleaded that the election petition was not  maintainable
inasmuch as it was not in the prescribed format; no   2

 details of the communal appeals allegedly made by respondent and  his agents
were mentioned in the petition; certified copies of the VHS  Cassette and its
transcript, containing the speeches delivered by the  respondent, had not been
furnished and even the provisions of  Section 86 of the Act had not been
complied with.

5. Upon consideration of the pleadings, the High Court  (hereinafter referred to
as "the Tribunal") framed the following issues:   "(1) Whether
the petitioner proves that the election of the respondent is liable to be
quashed and set aside for having made communal appeals in his speeches recorded
on the VHS Cassette produced by the petitioner in Court?

      (2) Whether the petitioner proves that the election of the respondent is
liable to be quashed and set aside under Sections 100(1)(d)(ii) and
100(1)(d)(iv) of the Representation of People Act, 1951 for the reasons set out
in paragraphs 9 to 18 of the Election Petition?

      (3) Whether the petitioner proves that the respondent had deliberately
issued the letter at Exhibit E page 42 dated 28.9.2004 in the name of the
petitioner with a view to misguide the voters?

      (4) Whether the respondent proves that he has not addressed communal and
racial speeches as

             alleged in VHS Cassette filed by the petitioner?"     3

 6. In support of the case, one of the documents placed on record  by the
appellant was a VHS Cassette which, according to him, was  obtained from the
Election Commission of India and contained a true  reproduction of the speeches
delivered by the respondent and his  supporters during the election campaign.
Out of the 20 documents  produced, only 3 documents viz. FIR dated 12th October,
2004 (Ex.  P2), complaint dated 29th October, 2004 (Ex.P3) and a special
supplement issued in the newspaper "Gavkari" on 3rd September,  2004
(Ex.P4) were exhibited. No other documents, including the  VHS Cassette, were
exhibited. The appellant and the respondent  examined themselves as witnesses in
support of their respective  stands. No other witness was examined.



7. Analysing the evidence adduced by the parties on the Issues,  the Tribunal
answered Issues No.1 to 3 in the negative and in view of  answer to Issue No.1,
Issue No.4 was not answered. On Issue No.1  the Tribunal observed that though
the appellant had placed on record  the VHS Cassette but had failed to produce
any evidence to show  that the said cassette was a true reproduction of the
original  speeches. The Tribunal did not accept the plea of the appellant that
since the cassette is a "public document", as defined in Section 74 of
4

 the Indian Evidence Act, 1872 (for short "the Evidence Act), its mere
production was sufficient and no further evidence was required to be  adduced to
prove as to how the said cassette was obtained by the  appellant. It has been
observed that even in the affidavit filed by the  appellant, in lieu of
examination-in-chief, there is no mention of the  said cassette and that it had
been obtained from the office of the  Election Commission on payment of
requisite charges for the same.  The Tribunal has also found that the
transcripts produced by the  appellant have not been proved to be those of the
original audio  recordings. The Tribunal finally held that since the contents of
the  cassette and the transcripts had not been proved, the allegation of  the
appellant that the respondent had indulged in corrupt practices by  appealing to
the Maratha community to vote on the basis of  community, could not be accepted.
On Issue No.2, the Tribunal has  observed that apart from the fact that there
are no specific pleadings  in the election petition with regard to the claim of
the respondent  about the work done by him and the alleged threats by him in
publication "Deshdhoot", the appellant had failed to adduce any
evidence to prove that the claims made by the respondent in the  special
supplement of the local newspaper (Ex.P4) were false or that   5

 the said threats amounted to corrupt practices under Section  123(2)(a)(i) of
the Act. The Tribunal has, accordingly, held that the  appellant has failed to
prove that the respondent had indulged in any  corrupt practices. As regards
Issue No.3, the Tribunal has held that  the letter/pamphlet purportedly written
by the appellant and allegedly  circulated by the respondent in order to defame
the appellant had not  been proved by the appellant. The election petition
having been  dismissed with costs, the appellant is before us in this appeal.

8. Mr. Krishnan Venugopal, learned senior counsel, appearing on  behalf of the
appellant, confined his challenge to the finding of the  Tribunal on Issue No.1.
He submitted that besides being a public  document, the contents of VHS Cassette
were not specifically denied  by the respondent and, therefore, no further
evidence was required to  be produced to prove the authenticity of the cassette.
According to  the learned counsel, the Tribunal has committed a serious error of
law in rejecting the evidence adduced by the appellant, in the form of  the said
cassette. It was strenuously urged that the finding of the  Tribunal to the
effect that the appellant had failed to prove the factum  of communal speeches
being made by the respondent and/or his     6

 agents, is palpably erroneous and, therefore, deserves to be set  aside.



9. Mr. K.V. Vishwanathan, learned senior counsel, appearing on  behalf of the
respondent, on the other hand, supported the  decision of the Tribunal and
submitted that apart from the fact  that there was no specific pleading in the
election petition with  regard to the mode of acquisition of the cassette in
question,  even if it was assumed that the said cassette was a public  document
yet in order to attract the provisions of Section 123 of  the Act, the appellant
was required to prove with cogent  evidence that the speeches recorded therein
were, in fact,  made by the respondent and his agents. In support of the
proposition that unless a document is exhibited at the trial and  is put in
evidence it cannot be looked into, reliance was placed  on a decision of this
Court in Amar Nath Agarwalla Vs.  Dhillon Transport Agency1. Learned counsel
asserted that  the finding recorded by the Tribunal on the issue, being a pure
finding of fact, no interference is called for.     1

    (2007) 4 SCC 306

                                                                           7

 10. The short question for consideration is whether the Tribunal  was justified
in discarding the cassette placed on record by the  appellant to prove the
allegation of appeal by the respondent to  the voters to vote on communal
ground, amounting to a corrupt  practice within the meaning of Section 123(3) of
the Act?

11. Before we proceed to examine the controversy at hand, we  deem it necessary
to reiterate that a charge of corrupt practice,  envisaged by the Act, is
equated with a criminal charge and  therefore, standard of proof therefor would
not be  preponderance of probabilities as in a civil action but proof  beyond
reasonable doubt as in a criminal trial. If a stringent  test of proof is not
applied, a serious prejudice is likely to be  caused to the successful candidate
whose election would not  only be set aside, he may also incur disqualification
to contest  an election for a certain period, adversely affecting his political
career. Thus, a heavy onus lies on the election petitioner to  prove the charge
of corrupt practice in the same way as a  criminal charge is proved.



12. Explaining the nature and extent of burden of proof in an  election trial
involving a charge of corrupt practice, in Razik  8

           Ram Vs. Jaswant Singh Chouhan2, speaking for the Bench,  Sarkaria, J.
observed as under:

 ...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. Just as in a criminal case, so in
an election petition, the respondent against whom the charge of corrupt practice
is levelled, is presumed to be innocent unless proved guilty. A grave and heavy
onus, therefore, rests on the accuser to establish each and every ingredient of
the charge by clear, unequivocal and unimpeachable evidence beyond reasonable
doubt."

                                                    (emphasis supplied)



13. In Jeet Mohinder Singh Vs. Harminder Singh Jassi3, a  Bench of three judges
of this Court, summarising the principles  laid down by this Court from time to
time in the field of election  jurisprudence; adumbrated the following legal
principles,  relevant for our purpose: to be kept in view by the Election
Tribunals and the Appellate Courts while dealing with election  petitions and
appeals arising therefrom:

  2

    (1975) 4 SCC 769

3

    (1999) 9 SCC 386

                                                                          9

 "(i) The success of a candidate who has won at an election should not be
lightly interfered with. Any petition seeking such interference must strictly
conform to the requirements of the law. Though the purity of the election
process has to be safeguarded and the Court shall be vigilant to see that people
do not get elected by flagrant breaches of law or by committing corrupt
practices, the setting aside of an election involves serious consequences not
only for the returned candidate and the constituency, but also for the public at
large inasmuch as re-election involves an enormous load on the public funds and
administration.

(ii) Charge of corrupt practice is quasi-criminal in character. If
substantiated, it leads not only to the setting aside of the election of the
successful candidate, but also of his being disqualified to contest an election
for a certain period. It may entail extinction of a person's public life and
political career. A trial of an election petition though within the realm of
civil law is akin to trial on a criminal charge. Two consequences follow.
Firstly, the allegations relating to commission of a corrupt practice should be
sufficiently clear and stated precisely so as to afford the person charged a
full opportunity of meeting the same. Secondly, the charges when put to issue
should be proved by clear, cogent and credible evidence. To prove charge of
corrupt practice a mere preponderance of probabilities would not be enough.
There would be a presumption of innocence available to the person charged. The
charge shall have to be proved to the hilt, the standard of proof being the same
as in a criminal trial.

(iii) The Appellate Court attaches great value to the opinion formed by the
trial Judge more so when the trial Judge recording findings of fact is the same
who had recorded the evidence. The Appellate Court shall remember that the
jurisdiction to try an election  10

            petition has been vested in a Judge of the High Court. Secondly, the
trial Judge may have had the benefit of watching the demeanour of witnesses and
forming first-hand opinion of them in the process of evaluation of evidence. The
Supreme Court may re- assess the evidence and come to its own

           conclusions on feeling satisfied that in recording findings of fact
the High Court has disregarded settled principles governing the approach to
evidence or committed grave or palpable errors."

14. In the backdrop of the afore-stated principles, we may now  advert to the
facts at hand to examine if the finding recorded by  the Tribunal in the
judgment in appeal, holding that the  appellant has failed to prove that the
respondent had committed  corrupt practice, falling within the ambit of sub-
Section (3) of  Section 123 of the Act, is justified or not.

15. Section 123 of the Act defines corrupt practices. In the instant  case,
Issue No.1 is based on the alleged violation of sub-  Section (3) of Section
123, which reads as follows:   "(3) The appeal by a candidate or his agent
or by any other person with the consent of a candidate or his election agent to
vote or refrain from voting for any person on the ground of his religion, race,
caste, community or language or the use of, or appeal to religious symbols or
the use of, or appeal to, national symbols, such as the national flag or the
national emblem, for the furtherance of the prospects of the election of that
candidate or for prejudicially affecting the election of any candidate:  11

       [Provided that no symbol allotted under this Act to a candidate shall be
deemed to be a religious symbol or a national symbol for the purposes of this
clause.]"

16. The vital ingredients of the sub-Section, relevant for this appeal,  are -
(i) appeal by a candidate or his agent or by any person  with the consent of a
candidate or his election agent; (ii) to vote  or refrain from voting for any
person and (iii) on the ground of  religion, race, caste, community or language.
As stated above,  the case of the appellant is that the respondent had appealed
to  the electorate to vote on communal lines. In support of the  allegation, a
cassette, allegedly containing speeches made by  him and his agents, along with
its transcript was produced.  According to the appellant, the cassette contained
speeches,  which were recorded at the instance of the Election  Commission and
that the cassette having been obtained from  the Election Commission, it was a
public document and  therefore, the burden of proof which lay on him to prove
the  allegation stood discharged.



17. Chapter V of the Evidence Act deals with documentary  evidence. Section 61
thereof lays down that the contents of  documents may be proved either by
primary or by secondary  12

 evidence. As per Section 62 of the Evidence Act, primary  evidence means the
document itself produced for the  inspection of the Court. Section 63
categorises five kinds of  secondary evidence. Section 64 lays down that
documents  must be proved by primary evidence except in the cases  mentioned in
the following Sections. To put the matter briefly,  the general rule is that
secondary evidence is not admissible  until the non-production of primary
evidence is satisfactorily  proved. However, clause (e) of Section 65, which
enumerates  the cases in which secondary evidence relating to documents  may be
given, carves out an exception to the extent that when  the original document is
a "public document" secondary  evidence is admissible even though the
original document is  still in existence and available. Section 74 of the
Evidence Act  defines what are known as "public documents". As per
Section  75 of the Evidence Act, all documents other than those stated  in
Section 74 are private documents. There is no dispute that  certified copy of a
document issued by the Election  Commission would be a public document.

   13

 18. However, in the present case, the dispute is not whether a  cassette is a
public document but the issues are whether: (i) the  finding by the Tribunal
that in the absence of any evidence to  show that the VHS Cassette was obtained
by the appellant  from the Election Commission, the cassette placed on record
by the appellant could not be treated as a public document is  perverse and (ii)
a mere production of an audio cassette,  assuming that the same is a certified
copy issued by the  Election Commission, is per se conclusive of the fact that
what  is contained in the cassette is the true and correct recording of  the
speech allegedly delivered by the respondent or his agent?

19. Insofar as the first question, formulated above, is concerned, it  would be
profitable to extract the observations of the Tribunal  on the issue. The
Tribunal observed thus:

 "14. It is no doubt true that the Petitioner has produced the VHS Cassette
on record. This cassette was produced on 30.11.2004. However, the Petitioner has
produced no evidence on record to indicate that this VHS cassette was a true
reproduction of the original speeches. The submissions of the learned counsel
for the Petitioner, that the VHS Cassette is a public document as defined u/s.
76 of the Indian Evidence Act, cannot be accepted. There is no evidence to
indicate that the VHS cassette was obtained from the election commission. The
Petitioner who examined himself has not adverted to this video  14

       recording in his examination in chief. There is no averment in the
affidavit filed in lieu of examination in chief to the effect that he had
obtained the cassette from the office of the election commission and that he had
paid the requisite charges for the same. At the time of the arguments, the
learned counsel for the Petitioner pointed out that this Cassette was in fact
issued to the Petitioner by the election commission's office. But this is not
sufficient. A public document need not be proved under the Indian Evidence Act.
However, it must be brought on record as evidence. It must be admitted in
evidence as a certified copy of the original before any presumption can be drawn
regarding its genuineness. I am fortified in my view by the decision of the
Supreme Court in the case of Amarnath Agarwal (supra) where the Supreme Court
has held that the mere production of the documents along with the written
submissions without exhibiting them at the trial would be sufficient for the
Court to look into those documents as they were not in evidence and the
defendant had no opportunity to reply to those documents. The Petitioner has not
proved the receipt issued by the election commission's office and has thus
failed to prove that the VHS Cassette was a public document. That being the
position, it is not possible to rely on the contents of the VHS cassette."
Thus, observing that the appellant had failed to produce even the  receipt
stated to have been issued by the Election Commission's  office, the Tribunal
held that mere production of the cassette with the  Election Petition would not
lead to the inference that it had been  produced in evidence and being a public
document, it was not  required to be proved. Having perused the material on
record, we  are in complete agreement with the Tribunal that in the absence of
15

 any cogent evidence regarding the source and the manner of its  acquisition,
the authenticity of the cassette was not proved and it  could not be read in
evidence despite the fact that the cassette is a  public document. No relevant
material was brought to our notice  which would impel us to hold that the
finding by the Tribunal is  perverse, warranting our interference.



20. The second issue, in our opinion, is of greater importance than  the first
one. It is well settled that tape-records of speeches are  "documents"
as defined in Section 3 of the Evidence Act and  stand on no different footing
than photographs. (See:  Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass
Mehra & Ors.4). There is also no doubt that the new  techniques and devices
are the order of the day. Audio and  video tape technology has emerged as a
powerful medium  through which a first hand information about an event can be
gathered and in a given situation may prove to be a crucial  piece of evidence.
At the same time, with fast development in  the electronic techniques, the
tapes/cassettes are more  susceptible to tampering and alterations by
transposition,  excision, etc. which may be difficult to detect and, therefore,
4

    (1976) 2 SCC 17

                                                                          16

           such evidence has to be received with caution. Though it  would
neither be feasible nor advisable to lay down any  exhaustive set of rules by
which the admissibility of such  evidence may be judged but it needs to be
emphasised that to  rule out the possibility of any kind of tampering with the
tape,  the standard of proof about its authenticity and accuracy has to  be more
stringent as compared to other documentary evidence.

21. In Yusufalli Esmail Nagree Vs. State of Maharashtra5, this  Court observed
that since the tape-records are prone to  tampering, the time, place and
accuracy of the recording must  be proved by a competent witness. It is
necessary that such  evidence must be received with caution. The Court must be
satisfied, beyond reasonable doubt that the record has not  been tampered with.



22. In R. Vs. Maqsud Ali6, it was said that it would be 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
are properly  identified. Such evidence should always be regarded with 5

    (1967) 3 SCR 720

6

    (1965) 2 ALL E.R. 464

                                                                       17

           some caution and assessed in the light of all the circumstances  of
each case.



23. In Ziyauddin Burhanuddin Bukhari (supra), relying on R. Vs.  Maqsud Ali
(supra), a Bench of three judges of this Court held  that the tape-records of
speeches 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 know it.

          (b) Accuracy of what was actually recorded had to be proved by the
maker of the record and satisfactory evidence, direct or circumstantial, had to
be there so 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."



24. Similar conditions for admissibility of a tape-recorded statement  were
reiterated in Ram Singh & Ors. Vs. Col. Ram Singh7 and  recently in R.K.
Anand Vs. Registrar, Delhi High Court8.

25. Tested on the touchstone of the tests and safeguards,  enumerated above, we
are of the opinion that in the instant  case the appellant has miserably failed
to prove the authenticity 7

    1985 (Supp) SCC 611

8

    (2009) 8 SCC 106

                                                                         18

       of the cassette as well as the accuracy of the speeches  purportedly made
by the respondent. Admittedly, the appellant  did not lead any evidence to prove
that the cassette produced  on record was a true reproduction of the original
speeches by  the respondent or his agent. On a careful consideration of the
evidence and circumstances of the case, we are convinced that  the appellant has
failed to prove his case that the respondent  was guilty of indulging in corrupt
practices.

26. For the afore-going reasons, we see no merit in this appeal.  We, therefore,
affirm the decision of the Tribunal and dismiss  the appeal with costs,
quantified at Rs.20,000/-.     ........................................J. (D.K.
JAIN)

  ........................................J. (P. SATHASIVAM)

NEW DELHI;

FEBRUARY 5, 2010

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