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."

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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

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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:

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(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

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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 Singh and his party. He further states that he, alongwith his brother Tula Ram, went to Rewari to meet Col. Ram Singh and narrated the whole incident to him. In cross-examination, the    witness says that he and his brother had received fists and slaps as a result of which they bled because of injuries on their bodies. He further says that as there was no visible mark of     injury     they did not     get themselves medically examined.     He is     an unsophisticated villager and once having reported the matter to Col. Ram Singh he did not think it necessary to file any complaint with the police.

RW 6 (Suresh) was     also a     voter waiting in a queue to cast his vote when at about 8.30 a.m. AJit Singh aimed with a revolver, appeared on the scene and entered the booth. He heard hue and cry from inside the booth. He corroborates the evidence of RW 5 about the beating up of Tula Ram and Ram Kishan (RW 5). He goes on to state that after about half-an- hour of     the departure of Ajit Singh and his party, Col. Ram Singh came and after spend about 5-6 minutes     inside     the booth he drove away. The witness further says in cross- examination that the    polling     did not start after     the departure of AJit Singh in view of the commotion that took place there. After the     departure of Col. Ram Singh     the S.D.O. and the D.C. also came and ultimately the polling was continued. The    witness finally     says that he did not inform Col. Ram Singh about the incident nor did anybody enquire from him anything about the same. In these circumstances, we do not     think     that    the evidence of this witness is creditworthy.

The other    witnesses examined by the respondent not in respect of the Kalaka polling booth.

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The picture would not be complete unless we give the other version of the story put forward by the appellants who have also examined many witnesses.

PW 8 is the only witness who has identified his voice recorded in the tape    recorder by the D.C. when other witnesses, including the D.C., could not do so. That itself shows that he has leanings towards the appellants. Another important     aspect which     emerges from     the evidence of PW 8 is that, according to him, the total votes polled in the Kalaka polling booth were 573, the break-up of which is as follows:-

between 7.30 to 8.45 a.m.     58

"     12 Noon- 2.00 p.m.     205

"     2.00 p.m.- 4.30 p.m.     109

-------

372

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This means     that if there was any disturbance it would have taken a very short time    in view     of the calculation given by this witness.     If, however, it is a fact that both parties - one led by Ajit Singh and the other led by respondent - had a sort of a direct confrontation, it would have been extremely difficult for the polling to start only after an interval of an hour    and a    half. Moreover, no explanation has     been given by this witness of the votes polled in between 8.45     to 10.30 a.m. The tally of votes is not consistent    with his evidence and is ar. intrinsic proof of the    fact that his evidence     is not     true. The general impression which we gather after perusing his evidence Is that he     does not appear to be a witness of     truth    and, therefore, we find it    difficult to rely on the evidence of this wiriness. Moreover, we shall have to say something more regarding the credibility of this witness when we deal with the documentary evidence.

PW 10 (Sri Krishan) was     the S.D.O. and Returning Officer tor the Rewari     constituency. According to him, he remained in his office     upto 10.00 a.m. and after that he started touring     the various polling booths. He goes on to say that on 19.5.82 he reached Kalaka at about 11.00-11.30 a.m. on     receipt of a complaint to the effect that Col. Ram Singh, alongwith his companions, had tried to intimidate the polling staff and the voters. When he arrived at the spot he found the polling at a standstill. This actually supports the case of the respondent that the polling went on smoothly from 8.00 a.m. to 11.00 a.m.

and the     trouble must have been started either by Ajit Singh or by    his men. The poll could not have restarted before 1.00 to     1.30 p.m. because, according to the evidence of the D.C., the polling staff had been interrogated and their statements were tape-recorded which would have taken quite a lot of    time. This fact intrinsically knocks the bottom out of the case made out by PW 8 regarding timing of the voting. PW 14 (Puran) is    the next witness who does not appear to be of any importance because it is only a case of oath against oath. Moreover, a perusal of his evidence shows that this witness ran away    after Col. Ram Singh is alleged to have threatened     him. tie then returned and cast his vote at about 3.00 P.M. Not much turns upon to evidence. Rather his evidence shows    that he reached the spot nearabout 3.00 p.m. when peace had been restored and the polling had restarted smoothly.

More or less, to the same effect is the evidence of PW 16 (Ishwar Singh) with the difference that this witness says that he     was assaulted    but then except informing the S.l. about the injury he took no    further     steps.     If he     was actually injured he would have made it a point to report the fact of     his assault to the D.C. Or the S.D.O. Or other officers who had assembled after the    miscreants had    gone away. This obviously he did not do. Lastly he admits that his family was supporting the Congress (I) candidate (Sumitra Bai) and, therefore,    h could not be said to be an independent witness.

PW 17 (Amar Singh) was admittedly a polling agent of Sumitra Bai. The witness says that when the D.C. and S.D.O. came he     made a     complaint to them in writing which was also signed by Suraj Bhan, Mangal Singh, Basti Ram and others. He Further says that he had verbally complained to Deep Chand, the ASI     but he     took no action. He states that the D.C. had however made an enquiry from him but the D.C. does not say anything about    this witness and being     a most interested witness it is difficult for us to rely on this witness when the High Court which had the    opportunity of    watching the demeanour and behavior of this witness Placed no reliance on him.

The evidence of PW 18 is almost in the same terms. Like others, he also seems to made a written report to the police station which has not    been produced and no action seems to have been taken thereon. It is rather strange that a number of witnesses say that    they had made an oral     or written complaint yet no action was taken thereon which shows that the statement of the witness is a purely cooked up story. 430

This closes the evidence    so far    as the     prosecution witnesses are concerned. The learned Judge of the High Court has taken great pains    in very     carefully marshalling     and analysing the evidence and so far as Kalaka polling booth is concerned, the    findings of the High Court may be extracted thus:

"The evidence of the PWs on this point is not corroborated. The ownership of the motor cycles abandoned by the party of the respondent was not traced. The ownership could be established from their Registration Books. No effort was made to connect those with the respondent or his supporters. This shows that the PWs were drawing upon their imagination to make out stories about the detention of the persons and the forcible polling at that polling station by the res pondent .

When the evidence on the file of the case is given a close look it leads to an inference that the petitioners have failed to prove this part of the charge beyond reasonable doubt.

Shri Sri Krishan SDO (Civil) stated that 3/4 persons gave him a complaint at Kalaka about the incident. It was a signed complaint. That complaint is not traceable. It was not found in the complaint file. Nor was it entered in the complaint register. That com plaint could throw light on the incident if at all lt had been produced. The oral evidence has failed to convincingly make out this allegation that the voters were threatened at Kalaka.

From the overall assessment of the petitioners' evidence and the detailed discussion in the previous paragraphs concerning this polling station it has left an impression in my mind that the role assigned to the respondent has not been proved beyond reasonable doubt. Lot of suspicions which are indicated in the previous paragraphs attach to his evidence and it is difficult to say that the inference in favour of the

petitioners' case is irresistible. The evidence of the A petitioners is not of the type, which could persuade me to take a decision in their favour." After going through the evidence very carefully, we find ourselves in complete agreement with the conclusions arrived at by the learned Judge of the High Court so far as Kalaka polling booth is concerned.

P.W. 7 has stated in his evidence that the voice of P.W. 8 who was the Presiding Officer at kalaka polling station is recorded in the tape, that the tape contains also he conversation of the alternate Presiding Officer, Roop Chand (R.W. 1) and that the voice of the Constable Mohinder Singh (R.W. 3) who was on duty at the polling station and had made a complaint to him is also recorded in the tape. It is true that he has admitted in his cross-examination that he cannot identify the voice with any of the persons mentioned by him. The transcript of the tape (P.W. 7/1) after it had been recorded in a larger tape with the help of a re sophisticated instrument in this Court was prepared by this Court and some portions thereof has been admitted by R.W. 22 to be in his voice and he has recognised in the larger tape the voice of even P.W. 7 in some portions of the conversation which admittedly took place between him and P.W. 7 in the office of R.W. 10 at about 7.30 p.m. On 19.5.1982. It is seen from the transcript that some one had answered the question about what his name and number were and that one Mohinder Singh had answered saying that his name and number were Mohinder Singh and 498 which tally with those of R.W. 3. In the answer to question as to how many persons came inside the polling station Mohinder Singh had stated that four persons case inside and 20 or 30 persons were remaining outside and there were also 5 or 6 vehicles. In answer to the question whether he had seen arms or ammunitions in the hands of those persons who stood outside and of those four persons who entered the polling station Mohinder Singh had stated that perhaps Colonel Sahib, referring to the respondent, was armed with a gun while some persons were armed with swords and some 2 or 3 persons were armed with lathis. It is further seen that in answer to the question as to what he was and what was his name one Roop Chand informed the question that he was Roop Chand and a Stenographer in the Project Office of the Agricultural Department in Haryana. These particulars tally with those 478

of R.W. 1. It is seen from the tape that P.W. 17 had also answered certain questions saying inter alia that he was Amar Singh, polling agent of the Congress (I) candidate and that there were 5 or o vehicles with a number of persons in them. It is also seen from the tape that during the course of conversation between the respondent and P.W. 7 at the office of P.W. 10 the fact that P.W. 7 had gone to Kalaka polling station immediately after the respondent and others left the place and that he got the statements tape-recorded there was mentioned by P.W. 7 to the respondent. In these circumstances great reliance has to be placed on the tape (Ex.P.W. 7/1) and is contents not only for corroborating the evidence of P.Ws. 7 and 8 to the extent they go but also as res gestae evidence of the first part of the incident. The learned trial Judge was not justified in rejecting the tape- record (Ex.P.W. 7/1) and the transcript (Ex.P-1). It must be remembered that the respondent who had openly disowned any art of the tape as containing his voice and had, on the other hand, gone to the extent of saying in the trial Court that it rather contained the voice of Rao Birendra Singh has admitted in this Court portions of that tape as being in his voice and that he has stated that he cannot identify any voice other than those of himself and P.W. 7. Coming now to Ex. P-2, P.W. 7 has stated in that report that around 10.30 a.m. when he was proceeding by his car between Manodola and Zainabad villages he received a message on the 4 police wireless that in Rewari Constituency the Congress (J) candidate had complained that about 50 to 60 Congress (I) workers had attacked his workers in Kalaka village. He immediately directed the Station House 'Officer of Sadar Rewari to rush to the village. At 11.35 a.m. he received a message on the police wire less that villagers had refused to vote in Kalaka alleging that Congress (J) workers had polled some bogus votes in Kalaka polling station. Therefore he proceeded to Kalaka polling station and interrogated the Presiding Officer and the polling officers of the polling station and recorded the conversation in his tape-recorder. When he was told that Congress (J) workers came into the polling station and snatched ballot papers from the polling staff and polled them in favour of the respondent, he advised the polling officer to accept tendered votes from the electors if they came to the polling station for voting and he thereafter went to Burthal Jat. This report submitted by P.W. 7 some time after the results of the poll were announced corroborates the evidence of P.W. 7 about what he did at the polling h station soon after he went there on receipt of a wireless message about the polling of bogus votes in favour of the respondent.

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With respect to the office which he holds, the respondent, as a party and his own witness, is wholly unreliable. In his written statement he had vaguely alleged that the men of Rao birendra Singh captured the booth at Kalaka aud the supporters and voters of the respondent were badly out-manoeuvred and that the said fact could be gathered from the fact that whereas Sumitra Devi had obtained 484 votes he had obtained only 53 votes in that polling station. The only suggestion made to P.Ws. 12 and 17 who have denied it is that Ajit Singh visited the Kalaka polling station. No suggestion was made to any of the witnesses examined on the side of the appellants in the cross-examination that Ajit Singh came armed with some armed companions and beat R.W. 5 and Tula Ram and dragged them out and that they forcibly polled bogus votes. Such a case was projected by the respondent only after the respondent started to let in oral evidence on his side after the appellants had closed their evidence. In these circumstances, when questioned as to why he had not made any complaint naming Ajit Singh specifically for the incident at Kalaka R.W. 22 has stated in his evidence that it is not because such an incident never happened but because the picture was not clear at that time. It is impossible to accept this explanation of R.W. 22, for the polling took place on 19.5.1982 and the respondent filed his written statement in the election petition long thereafter on 14.9.1982. If, as the respondent would have it, Tula Ram and R.W. 5 came to his residence at Rewari in the morning of 19.5.1982 and informed him about the incident at the Kalaka polling station and there after he went there and complained to P.W. 8 about it, he should have come to know about the details of the incident before he filed his written statement long thereafter on 1.9.1982. If by 14.9.1982 the picture of what happened at the Kalaka polling station 19.5.1982 was not clear it is not known how it would have become clear only after appellants had closed their evidence and just before the respondent began to let in oral evidence on his side. Therefore, the explanation of R.W.22 that he had not named Ajit Singh specifically in relation to the incident at the Kalaka polling station not because it never happened in the manner stated by his witnesses but because the picture was not clear at that time cannot be accepted at all.

R.W. 22 had stoutly denied in the trial Court that the tape record (Ex. P.W. 7/1) contained his voice but added that it is rather the voice of Rao Birendra Singh. But after the tape was recorded with the aid of a more sophisticated instrument by playing it in this Court in the presence of the respondent in the

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office and also in the open Court, R.W. 22 has admitted some portions of his conversation with R.W. 7 in the office of P.W. 10 at about 7 or 7.30 a.m. On 19.5.1982. In the cross examination made in this Court after R.W. 22 had heard the re-recorded larger tape being played in the Court R.W. 22 has stated that he could not recognise the voice of any person in the tape other than those of himself and P.W. 7. If the tape used by P.W. 7 for recording the conversation could not be followed and understood clearly when it was played in the trial court with the very same instrument by which it was recorded what R.W. 22 could have said was that he cannot say whether it contains his voice but he could not have gone to the extent of saying that it does not contain his voice but it rather contains the voice of Rao Birendra Singh. This also shows that the evidence of R.W. 22 is not reliable.

In his cross examination in this Court R.W. 22 has stated that he was the Speaker of the Haryana Legislative Assembly until the new Legislative Assembly met after the elections in May, 1982 and could therefore have summoned any officer to his office and he did not go to the police station on 19.5.1982 and he is quite positive about it. But in the later portion of his evidence in this Court he has stated that not only his admission of the transcript of the tape (Ex. P-l) to the effect that he went to the police station but also his written statement that he did not go to the police station on 19.5.1982 are both correct and that he would emphasize that he did not go to the police station at all on that day. He has also stated that although the voice in the tape says that he went to the police station and that voice appears to be his own voice he did not go to the police station because he was the Speaker of the Haryana Legislative Assembly on that day and could have summoned any police officer to his office. However, it is his own evidence that he did go to the office of P.W. 10 to meet P.W. 7 at about 7 or 7.30 p.m. On 19.5.1982. This also shows that the evidence of R.W. 22 is not reliable. R.W. 22 has admitted the voice in the tape that when P.W. 7 asked him about when he received the message about the incident at the Kalaka polling station he answered by saying that it was about 11.30 a.m. and that it is correctly recorded in the tape. It is seen from the transcript that the respondent had stated in that conversation that he thereafter went to the Kalaka polling station and questioned his men as to whether they were not ashamed that two or three 'chaps' belonging to the same village had been beaten. However, he would say in his evidence that he 481

went to Kalaka only once on 19.5.1982 and that it was about 9 or 9.30 a.m. There is abundant unimpeachable evidence on the side of the appellants to show that the respondent, armed with a rifle, visited Kalaka polling station accompanied by some armed persons at about 11.30 a.m. or 12 noon, and indulged in the polling of bogus votes. P.W. 7 had stated in the course of his tape recorded conversation with the respondent in the office of P.W 10 at about 7 or 7.30 p.m. on 19.5.1982 that he visited Kalaka polling station soon after the respondent had left that place. R.W. 22 has admitted in his cross examination in this Court that the statement of P.W. 7 that he was there at about 12 noon or 12.05 p.m. refers to Kalaka polling station and that P.W. 7 told him that the Presiding Officer told him a different story about the incident which took place in that polling station. It is, therefore, clear that the respondent has attempted to make a futile effort to show that he visited the Kalaka polling station with R.W. 5 and others only at about 9 or 9.30 a.m. On 19.5.1982 and not at the time of the first part of the incident alleged by the appellants. The written statement is silent on the question whether the respondent visited Kalaka polling station on 19.5.1982 except a mere denial. The respondent unsuccessfully attempted to file an additional or amended written statement to the effect inter alia that he had decided not to move out of his house and had not gone out of his house on 19.5.1982. This portion of the additional or amended written statement which had not been received by the Court was put to him in cross examination by Mr. Sibbal. R.W. 22 has stated that there appears to be a typing error in that statement that he did not move out of his house on that day and that what he meant to say was that as a consequence of the assurance of his supporters that he was going to succeed he acceded to their wish and had decided not to move out of his house on that day. He would say that he did not read that amended written statement and had no sufficient time to read it properly but that he did not give specific instructions to his counsel on that matter and was told by his supporters not to move out of his house on 19.5.1982 and that the fact that he went to Kalaka village on 19.5.1982 is not mentioned in that amended written statement though inspite of deciding not to move out of his house on that day he did go to Kalaka village on that day. This also shows that the evidence of R.W. 22 is not reliable.

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

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

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

But during the trial R.W. 22 had repeatedly denied that Anil Kumar and Satbir Singh were in any way related to him though in a portion of his evidence he would say that satbir Singh is the adopted son of Jagmal Singh, father of his wife who was divorced in 1962 and that he does not known if Anil Kumar is the brother of his brother-in-law, Surinder Kumar and he could not deny or admit that he is the brother of his brother-in-law, Surinder Kumar as Surinder Kumar has 6 or 7 brothers. He has stated that he does not know whether Anil Kumar and Satbir Singh are the two persons who were arrested in Burthal Jat village on 19.5.1982 for offences under section 107 and 151 of the Code of Criminal Procedure and that he had not exhibited grave concern about Anil Kumar and Satbir Singh in the course of his conversation with P.W. 7 in the office of P.W. 10 at 7 or 7.30 p.m. On 19.5.1982 or told P.W. 7 that they were his relatives. But in his cross examination in this Court he has admitted that Anil Kumar and Satbir Singh had been arrested by the police at the instance of P.W. 7 at the burthal Jat polling station on 19.5.1982 and that he had referred to them as his relations only because P.W. 7 had not taken any steps inspite of his repeated representation in regard to the arrest of those two persons. It is not possible to accept the evidence of R.W. 22 that because no steps were taken by P.W. 7 on his repeated requests for the release of Anil Kumar and Satbir Singh he told P.W. 7 that they were his close relatives, for he had admitted in his evidence in this Court that he would have left no stone unturned if his partymen and workers were harassed even though they may not be his relatives. It appears from this portion of the evidence of R.W. 22 that it would have been unnecessary for him to claim Anil Kumar and 483

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

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

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

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

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

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

P.W. 14 has stated that he had gone to the polling station at about 10 or 11 a.m. for casting his vote and was standing in the queue alongwith others. The respondent came there armed with a gun, accompanied by 50 or 60 persons including Desh Raj, Krishan Lal, Balbir Singh, Ram Krishan (R.W. 5) and a Sikharmed with a kirpan.. The respondent's companions created a commotion and the respondent threatened P.W. 17 and others who were in the queue to run away on pain of being killed otherwise and out of fear all the persons who were in the queue ran away. In his cross-examination he has stated that about 15 or 20 persons were standing in the queue when the respondent and his companions arrived at the polling station and that he cast his vote later at about 3 p.m. after calm prevailed all around. He has denied the suggestion that he had given false evidence being a Congress (I) worker.

Ishwar Singh (P.W. 16) the Lambardar of Kalaka village has stated that when he was standing in the queue along with 14 or 15 persons at about 10 or 10.30 a.m. awaiting his turn for casting his vote the respondent came there, accompanied by 3 or 4 persons including Desh Raj and Krishan Lal (R.W. 6) of his village and threatened to kill him and he was hit with the butt of a gun by one of the companions of the respondent and he ran away. He has also stated that P.Ws. 13,14,15 and 17 were also standing in the queue alongwith him and that after he informed the people of the village that the respondent had come and threatened him the people of the village collected and came towards the polling station whereupon respondent and his companions ran away leaving behind two motor-cycles by which respondent's companions had come there. There is abundant evidence on the side of the appellants,

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

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

This is all the oral evidence on the side of the appellants regarding tho respondent threatening electors who were standing in the queue at the Kalaka polling station awaiting their turn for casting their votes in the morning on 19.5.1982 and scaring them away under threat of violence against their person and thereby preventing them from exercising their electoral right. The evidence on the side of the respondent has been referred to above in the discussion relating to the first part of the incident at the Kalaka polling station and has been found to be not reliable. It has been found earlier that the evidence of R.W. 22 and his witnesses that R.W. 22 went to Kalaka polling station by a car with some of his men only at about 9 or 9.30 a.m. On 19.5.1982 could not be accepted and that the respondent had received information at about 10.30 a.m. about some Congress (J) workers having been beaten by Congress (I) workers in Kalaka, which message had been flashed by the police wireless and received by P.W. 7 and he went there only thereafter. There is unimpeachable evidence on the side of the appellants to show that when the respondent went inside Kalaka polling station he was in a rage. In these circumstances, it is probable that while in such a mood after receipt of some report that his workers were beaten by Congress (I) workers he went there and asked his men whether they were not ashamed about 2 or 3 of their men of the same village having been beaten and that he thereafter indulged in the acts alleged in the election petition both outside and inside the polling station at Kalaka. P.W. 7 who reached Kalaka polling station soon thereafter received oral report about the detention of a motor cycle belonging to Congress (J) workers. In these circumstances, 1 accept the evidence of PWs. 12, 13, 16 and 18 referred to above and find that the respondent came to the

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

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

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

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

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respondent came there at about 8 a.m. accompanied by 50 or 60 persons and told his polling agents, Mahabir and Udhey Bhan that he was leaving some persons behind and he asked them to see that no one is permitted to vote for the Congress (I) candidate and that they should ensure to have maximum votes polled in his favour in that polling station. The respondent left behind 15 or 16 persons including Anil Kumar and Satbir Singh, one of them a Sikh armed with a sword and the others with pistol and sticks and the other persons who came with the respondent went away with him. In his cross-examination he has stated that the respondent came to Burthal Jat polling station in a car while his companions came by a motor-cycle, a jeep and a truck. No doubt he is unable to mention the numbers or colour of the vehicles or the colour of the turban of the respondent's Sikh companion and he has stated that he cannot identity Satbir Singh. He has denied the suggestion that he is a supporter of Rao Birendra Singh and his sister and that the respondent did not come to Burthal Jat polling station at all on that day. P.W. 28 who belongs to Burthal Jat village has stated in his evidence that after he went to the polling station the respondent came there accompanied 50 or 60 persons at about 8 a.m. The respondent was armed with a small gun while his companions were armed with rifles, ballas and sticks. The respondent called his polling agents Mahabir and Udhey Bhan and told them that they should not permit even a single vote to be cast in favour of the Congress (I) candidate and he was leaving behind Anil Kumar and Satbir Singh alongwith 15 or 20 persons for their help. The other people left behind by the respondent were armed with lathis. He has admitted in his cross-examination that he was the polling agent of Sumitra Devi but he has denied the suggestion that the respondent did not go to the polling station at all on that day and that he has given false evidence. P.W. 29 who belongs to Burthal Jat village has stated in his evidence that he went to the polling station at about 8 a.m. for casting his vote in the election with which we are concerned. The respondent accompanied by 50 or 60 persons came there at about 8 a.m. and sent for his polling agents Mahabir and Udhey Bhan and told them they should not permit anyone to vote in favour of the Congress (I) candidate. PWs. 27 and 28 and many other persons were present when the respondent said so. The respondent told Mahabir and Udhey Bhan that he was leaving behind Anil Kumar and Satbir Singh for their help alongwith 15 or 20 persons who were found by P.W. 29 to be armed with sticks. P.W. 489

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

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

P.W. 31 who belongs to Burthal Jat village has stated in his evidence that when he went to the polling station at 11 a.m. for casting his vote in the election with which we are concerned he was accosted by Anil Kumar and Satbir Singh who were present there alongwith 20 or 30 persons armed with sticks about 25 yards away from the boundary of the polling station and they asked him as to the person for whom he was going to cast his vote and they insisted that he should vote for the respondent and threatened him when he replied that he would vote for the candidate of his own choice. In view of the threat he went back to the village and came later for casting his vote a, about 3. p.m. and learnt that Anil Kumar and Satbir Singh had been taken into custody by the police. He has admitted in his cross-examination that he did not complain to anybody about the threat but he has denied the suggestion that he has given false evidence. P.W. 32 is the Sarpanch of Burhtal Jat village. He was admittedly the polling agent of Sumitra Devi. He has stated in

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

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

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

PW 35 son of Umrao Singh and Lambardar of Burthal Jat village was the polling agent of the Bhartiya Janata Party candidate in the last election of the Haryana Legislative Assembly. He has stated that after he reached Burthal Jat polling station at 7 a.m. the respondent came there at about 8 a.m. accompanied by 50 or 60 persons and called his polling agents and told them that they should see to it that the Congress (I) candidate does not get votes and he added that he was leaving Anil Kumar and Satbir Singh and 15 other persons for their help. At about 2.30 p.m. PW 35 saw Anil Kumar and Satbir Singh beating PW 32 of his village and thereupon he and PWs. 33 and 34 separated them. Meanwhile, an Assistant sub-Inspector of police took Anil Kumar and Satbir Singh into custody, and 10 or 15 persons who were left behind by the respondent fled on seeing the police leaving behind a motorcycle and a jeep containing sticks and other weapons. PWs. 7 and 10 came there some time later and the motor-cycle and the jeep were taken into custody by the police. In his cross-examination he has denied that Ex.P-9 to which reference would be made a little later contains his signature and he has stated that there are two other persons of his name and one of them is the son of Umrao Singh. He has further stated in his cross-examination that the respondent told Anil Kumar and Satbir Singh that they should see to it that no other candidate except himself gets votes in that polling station. He has denied that he had made a false statement before PWs 7 and 10 and that he has given false evidence being a member of the opposite faction. 492

The Deputy Commissioner and District Election Officer (PW.7) has stated in his evidence that on the. day of poll he proceeded from Kalaka polling station to Burhtal Jat polling station pursuant to the receipt of` a complaint that a Congress(J) worker was attacked by the villagers of Burthal Jat. The polling officer of Burthal Jat polling station told him when he visited that place that nothing had happened inside the polling station but some of the officers in the polling station told him that there was some incidents outside the polling station though they were not sure about the identity of the persons responsible for the same. Some villages told PW 7 that Congress (J) workers had come in a jeep and tried to create trouble and that one of them ran away while the police had detained two of those persons. PW 7 interrogated those two persons and they then told him that they had nothing to do with the jeep whose number he has recorded in the tape Ex.PW 7/1. PW 7 found some sticks in the jeep and he asked the police to take the jeep and the sticks into their custody. Anil Kumar and Satbir Singh who had been attacked by the villagers were found detained by the police. The Sarpanch of Burthal Jat village (PW 32) made a complaint to him outside the Burthal Jat polling station. PW 7 recorded the conversation which he had with the Presiding Officer at the Burthal Jat polling station but some portion thereof was erased by his own voice by inadvertence. The respondent met PW 7 at about 7 p.m. in the office of PW 10 and informed PW 7 about some incidents which had taken place during the day and complained to him about them. The conversation which he had with the respondent at that time was recorded simultaneously in the tape (Ex. PW 7/1) and he later reported to the Secretary to the Government about the complaint which the respondent made to him against the Superintendent of Police. His stenographer prepared the transcript Ex.P-1 in his office, most of it under his supervision and he was temporarily absent to attend to some other work, and he compared it with the original tape and found it to be correct. The tape, tape-recorder and transcript remained with him throughout and were not deposited by him in the record room and there was no possibility of tampering. He had not created evidence in the form of the tape at the instance of Rao Birendra Singh to harm the respondent. Ex.P-2 is the copy of the report which he submitted about the incidents which took place on 19.5.1982 as had come to his notice. In his report Ex.P-2 sent to the Secretary to the Government, PW 7 has stated inter alia that when he went to Burthal Jat polling station from Kalaka polling station he was told that a few workers of the Congress (J) candidate had been detained by the villagers and he had conversation with the Presiding Officer and

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the villagers and found a jeep with about 15 or 20 lathis in it and directed the police to take the jeep with the lathis as also the two workers of the Congress (J) candidate who were standing near the jeep into custody.

The Returning Officer and Sub-Divisional Officer, Rewari (PW 10) who went to Burthal Jat polling station along with PW 7 has stated in his evidence that he saw Anil Kumar and Satbir Singh surrounded by the people of that village and a jeep containing some sticks parked there and that Anil Kumar and Satbir Singh and the jeep were taken into custody by the police under the orders of PW 7. He has further stated that Ex.P-9 was handed over to him by one Mam Chand of Burthal Jat village on that day. As stated earlier PW 35 who is Mam Chand son of Umrao Singh of Burthal Jat village has disowned Ex.P-9. In his cross-examination PW 10 has denied that he had discriminated between the candidates while disposing of the complaints about Kalaka and Burthal Jat polling stations. Ex.P-9 addressed by Mam Chand to PW 10 is to the effect that the respondent pointed out his gun at the Presiding Officer and other persons in Burthal Jat polling station after he came there at about 1.30 p.m. along with 65 or 70 persons and he ordered for the ballot papers being marked with the symbol of scales and put into ballot boxes and to finish off anybody who interferes and that the whole village was terrorised and they were thereby prevented from exercising their electoral right. There is no specific reference in this report to Anil Kumar and Satbir Singh or to their arrest by the police at the instance of PW 7. Ex.P- 9 which was found in the file summoned from the office of the Sub-Divisional Officer, Rewari had been marked only through PW 10 and has been disowned by PW 35 who is no doubt Mam Chand son of Umrao Singh. For want of proof Ex.P-9 could not be taken into consideration, but the learned Trial Judge has relied very heavily upon that document for disbelieving the appellants' case regarding the incident at Burthal Jat polling station. He was not justified in doing so. The Assistant Sub-Inspector of police (PW 9) who had been posted at Sadar Rewari police station has stated in his evidence that at the instance of Assistant Sub-Inspector Jagan Nath who returned to the police station at 3.30 p.m. on 19.5.1982 he recorded a Daily Diary Report of which Ex.P- 8 is a copy and that Ex.P-8 is a correct copy of the original report. It is mentioned in Ex.P-8 that Anil Kumar and Satbir Singh of Kutubpur and Dulana respectively were abusing and beating Sarpanch Shamsher Singh (PW 32) whereupon an Assistant Sub-Inspector of police 494

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

495

On the other hand, RW 11 a lecturer in a Higher Secondary School at Rewari who was a polling office at Burthal Jat polling station during the election with which we are concerned has stated in his evidence that no untoward incident of any type took place and that the respondent did not visit that polling station on that day. In view of the documentary evidence and the other oral evidence referred to above which show that on incident did take place outside Burthal Jat polling station and that a jeep containing some lathis as also Anil Kumar and & Satbir Singh were taken into custody and those two persons were prosecuted in a case registered against them under section 107 and 151 of the Code of Criminal Procedure it is not possible to accept the evidence of RW 11 that no incident took place and that the respondent did not go to Burthal Jat polling station at all on 19.5.1982. It must also be noted that KW 11 has admitted in his cross-examination that he could not have known that happened outside the polling station because he was inside. RW 12 who cast his vote in Burthal Jat polling station at 8 a.m. claims to have remained at the polling station till about 1.30 or 2 p.m. and he has stated that neither the respondent nor anyone on his behalf came to the polling station and there was no quarrel inside or near the polling station so long as he remained there. But in his examination-in-chief itself he has admitted that PW 32 was standing about 80 kadams away from the polling station with some people and he heard some altercation between them and that while the altercation was going on some police personnel arrived at the spot and removed two persons who were not known to him. He has further stated in his cross- examination that there was a jeep a, some distance away from where the Sarpanch (PW 32) and the other persons had altercation. He has no doubt denied the suggestion that 10 or 15 other persons were with those two unknown persons and they were armed with sticks, that the respondent came there and left those 15 or 20 persons along with those two unknown persons and that those two unknown persons threatened many people as a result of which they could not cast their votes. RW 13 who went to Burthal Jat polling station at about 10.45 a.m. for casting his vote and cast his vote at that time claims to have stayed there along with some villagers until about 4 p.m. Though he has stated in a portion of his examination-in-chief that no incident took place with in or outside the polling station 80 long as he remained where he had admitted in his examination-in-chief itself that he saw PW 32 having a dispute with two unknown persons about 120 kadams away as also a jeep parked 80 kadams away from the polling station and that he heard people saying that the Superintend of Police removed these two unknown persons. No doubt, he has denied that Anil Kumar and Satbir Singh were threatening the electors in the village and that he has given false evidence on account of pressure from the respondent. RW 14 who cast his vote at Burthal Jat polling station at 7.30 a.m. claims to have thereafter set under a tree by the road-side about half a furlong away from the polling station. He has stated that he did not see the respondent passing by that road in the direction of Burthal Jat village. His evidence is not helpful to either of the parties as he has merely stated that he had not seen the respondent passing by that road in the direction of Burthal Jat village. It is not possible that he would have closely looked into each and every vehicle which passed by that road to notice the respondent who appears to have been moving on that day by his car. RW 22 has stated that he did not go to Burthal Jat village or send anyone of his workers to that village on 19.5.1982 but he remained in his house throughout after he returned from kalaka on that day. It is not possible to accept his evidence that he had not sent any of his workers to Burthal Jat village on the date of poll as it is unlikely that the candidate contesting in the election would not have sent any of his workers to that polling station. It is seen from the aforesaid tape-recorded conversation between PW 7 and RW 22 in the office of PW 10 at about 7 or 7.30 p.m. On 19.5.1982 that the respondent expressed his anxiety to get his relatives Anil Kumar and Satbir Singh who had been arrested on that day by the police released and that his evidence that Anil Kumar and Satbir Singh were not his relatives at all is totally unreliable for reasons mentioned above in the discussion of the evidence relating to the incident at Kalaka polling station. The evidence of R.W. 22 as a whole is unreliable for the reasons already mentioned above.