Holding

The appellant failed to prove the authenticity of the cassette; consequently, the charge of corrupt practice was not established and the appeal was dismissed.

Summary

Tukaram S. Digole, who lost a Lok Sabha election, filed an election petition alleging that Manikrao Shivaji Kokate had made communal appeals in violation of Section 123(3) of the Representation of the People Act, 1951. Digole sought to prove the allegation by producing a VHS cassette he claimed was a certified copy from the Election Commission containing the offending speeches. The Election Tribunal dismissed the petition, holding that Digole failed to prove the cassette's authenticity or its status as a public document. On appeal, the Supreme Court affirmed that a charge of corrupt practice is quasi‑criminal and must be proved beyond reasonable doubt, and that even a public document must be authenticated before reliance. Since Digole offered no evidence establishing the cassette’s source or that it was a true recording, the Court dismissed the appeal and upheld the Tribunal’s decision.

Issues considered

Whether the Tribunal erred in holding that, in the absence of evidence of the source, the VHS cassette could not be treated as a public document under the Evidence Act.
Whether the mere production of an audio cassette, even if a certified copy, is conclusive of its contents being a true and accurate recording of the alleged speeches.
Whether the burden of proof for a charge of corrupt practice under Section 123(3) of the Representation of the People Act, 1951, requires proof beyond reasonable doubt.

Legislation cited

Indian Evidence Act, 1872s. 3, s. 61, s. 62, s. 63, s. 64, s. 65(e), s. 74
Representation of the People Act, 1951s. 100(1)(b), s. 100(1)(d)(ii), s. 100(1)(d)(iv), s. 101(b), s. 116-A, s. 123(3), s. 86

Subjects

election petitioncorrupt practicecommunal appealburden of proofevidencepublic documentaudio cassetteRepresentation of the People ActEvidence Act

Judgment

[2010] 2 S.C.R. 396

A T.UKARAM S. DIGHOLE
v.
MANIKRAO SHIVAJI KOKATE
· (Civil Appeal No. 2928 of 2008)
, FEBRUARY 5, 2010
8
[D.K. JAIN AND P. SATHASIVAM, JJ.]

Election Laws:

c . R(]presentation of the People Act, 1951:
ss.101(b), 101(d)(ii), 101(d)(iv) and 123(3) - Lok Sabha
Elections . :.:. Corrupt practice - Proof - Election of returned
candidate challenged on the ground of communal· appeal· to
electorate· - VHS cassette stated to have contained the
D speeches produced - HELD: A charge of corrupt practice
envisaged by the Act is equated with a criminal charge and,
therefore, standard of proof therefor is proof beyond
reasonable doubt as in a criminal case - A heavy onus' lies
on election petitioner to prove the· charge of corrupt practice
E in the same way as a criminal charge - In the instant case,
election petitioner did not lead any evidence to prove· that the
cassette produced on record containing communal appeal' to
electorate was a true reproduction of original speeches by the
returned candidate or his agent - It has, therefore, not been
F proved that the returned candidate was guilty of indulging in
co"upt practices - Evidence Act, 1872 - s.74.

Evidence Act, 1872:

ss. 3 and 74 - "Public document" - Cassettes - HELD:
G Tape records of speeches are 'documents' as defined in s.3
and stand on no different footing than photographs - Court
must be satisfied beyond reasonable doubt that the record
has not been tampered with - In the instant case, the Tribunal

H 396
TUKARAM S. DIGHOLE v. MANIKRAO SHIVAJI 397
KO KATE

has rightly held that in the absence of a cogent evidence A
regarding authenticity of the cassette, the source and the
manner of its acquisition, the cassette could not be read in
evidence - Representation of the People Act, 1951 -
ss.101(b) and (d).
8
The appellant who, lost the Lok Sabha election, filed
an election petition challenging the election of the
respondent-returned candidate, primarily on the
allegations that the respondent had made communal
appeals to the electorate, and prayed that the election of c
the respondent be declared as void u/ss. 101(b), 101(d)(ii)
and 101 (d)(iv) of the Representation of the People Act,
1951 and the petitioner be declared as elected in terms
of s.101 (b) of the Act. In support of his allegations, he filed
a VHS cassette said to have contained the speeches 0
made by the respondent. The Election Tribunal dismissed
the election petition holding that the election petitioner
had failed to prove the allegations, as he did not produce
any evidence to show that the VHS cassette filed by him
was the true reproduction of the original speeches made E
by the respondent. The Tribunal also did not accept the
plea of the election petitioner that the cassette was
obtained from the Election Commission and was a public
document, and 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 him. Aggrieved, F
the petitioner filed the appeal.

The questions for consideration before the Court
were: (i) whether the finding by the Tribunal that in the
absence of any __eyjdeAce to show that the VHS Cassette G
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) whether a mere production of an audio
cassette, assuming that the same is a certified copy H
308 SUPREME COURT REPORTS [2010] 2 S.C.R.

A issued by the Election Commission, is per se conclusive
Q{ the fact that what is contained in the cassette is the
~u.e and correct recording of the speech allegedly
delivered by the respondent or his agent?

Dismissing the appeal, the Court
B
HELD: 1.1. The Tribunal has rightly held that in the
absence of any cogent evidence regarding the source
and the manner of its acquisitiofl, the authenticity of the
cassette was not proved and it could not be read in
C evidence despite the fact that the cassette is a public
document. No relevant material was brought to notice of
the Court which would impel it to hold that the finding by
the Tribunal is perverse, warranting interference. [Para 19]
[411-8-D] . . /
D /
1.2. A charge of corrupt practice, envisaged by the
Representation of the People Act, 1951 is equated with a
criminal charge and, therefore, standard of proof therefor
would not be preponderance of probabilities as in a civil
E 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,
but he may also incur disqualification to contest an
F 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. [Para 11] [405-
D-E]

G Amar Nath Agarwal/a vs. Dhillon Transport Agency
(2007) 4 SCC 306; Razik Ram vs. Jaswant Singh Chauhan
(1975) 4 SCC 769; Jeet Mohinder Singh vs. Harminder
Singh Jassr (f999) 9 sec 386, relied on. ·

2.1. There is no dispute that certified copy of a
H
TUKARAM S. DIGHOLE v. MANIKRAO SHtvAJI 399
KO KATE

document issued by the Election Commission would be A
a public document u/s 74 of the Evidence Act, 1872. It is
well settled that tape-records of speeches are .
'"documents" as defined in s.3 of the Evidence Act and
stand on no different footing than photographs. There is
also no doubt that the new techniques and devices are B
the order of the day. Audio and video tape technology
has emerged as a powerful medium through which 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 c
electronic techniques, the tapes/cassettes are more
susceptible to tampering and· alterations by transposition,
excision, etc. which may be difficult to detect and,
therefore, such evidence has to be received with caution.
The Court must be satisfied, beyond reasonable doubt 0
that the record has not been tampered with. 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 E
with the tape, the standard of proof about its authenticity
and accuracy has to be more stringent as compared to
other documentary evidence. [Para 16-17 and 20-21] (408-
F-H; 409-A-E; 411-E-G; 412-A-C]

Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass F
Mehra & Ors. (1976) 2 SCC 17; Yusufallf Esmai/ Nagree vs.
State of Maharashtra (1967) 3 SCR 720; R. vs. Maqsud Ali
(1965) 2 ALL E.R. 464; Ram Singh & Ors. vs. Col. Ram
Singh 1985 (Supp) SCC 611; and R.K. Anand vs. Registrar,
Delhi High Court (2009) 8 sec 106, relied on. G

2.2. Tested on the touchstone of the tests and
safeguards, in the instant case, the appellant has
miserably failed to prove the authenticity of the cassette
as well as the accuracy of the speeches purportedly H
400 SUPREME COURT REPORTS (2010] 2 S.C.R.

A 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
B case, the appellant has failed to prove his case that the
respondent was guilty of indulging in corrupt practices.
[Para 25] [413-C-E]

Case Law Reference:

c c2001) 4 sec 306 relied on para 9
(1975) 4 sec 769 , relied on para 12
(1999) 9 sec 386 relied on para 13
(1976) 2 sec 11 l"elied on para 20
D
(1967) 3 SCR 720 relied on para 21
(1965) 2 ALL E.R. 464 relied on para 22
1985 (Supp) sec 611 relied on para 24
E
(2009) 8 sec 106 relied on para 24

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2928 of 2008.

F From the Judgment & Order dated 25.1.2008 of the High
Court of Judicature of Bombay in Election Petition No. 13 of
2004.

Krishna Venugopal, S. Udaya Kumar Sagar, Bina
Madhawan, Shwetank Sailakwal (for Lawyer's Knit & Co.) for
G the Appellant.

K.V. Vishwanathan, Sudhanshu S. Chaudhari, Naresh
Kumar, Abhishek for the Respondent.

H
TUKARAM S. DIGHOLE v. MANIKRAO SHIVAJI 401
KO KATE
A
The Judgment of the Court was delivered by

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 B
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. c
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 D
October, 2004. The appellant contested the elections as a
candidate of NCP-Congress - RP.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 E
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
F
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 G
denying all the allegations. It was pleaded that the election
petition was not maintainable inasmuch as it was not in the
prescribed format; no details of the communal appeals allegedly
made by respondent and his agents were mentioned in the
H
-402 · SUPREME COURT REPORTS [2010] 2 S.C.R.

A petition; certified copies of the VHS Cassette and its transcript,
containing the speeches delivered by the respondent, had not
been furnished and,,even th~ provisions of Section 86 of the
Act had not been complied with.

8 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
c 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
D 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?
E (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?

F (4) Whether the respondent proves that he has not
addressed communal and racial speeches as
alleged in VHS Cassette filed by the petitioner?"

6. In support of the case, one of the documents placed on
record by the appellant was a VHS Cassette which, according
G 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
H
TUKARAM S. DIGHOLE v. MANIKRAO SHIVAJI 403
KOKATE [D.K. JAIN, J.]
29th October, 2004 (Ex.P3) and a special supplement issued A
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. B

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 answ~r to Issue No.1, Issue No.4 was not
answered. On Issue No.1 the Tribunal observed that though the C
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 the Indian
Evidence Act, 1872 (for short "the Evidence Act), its mere \D
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 E
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 F
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. ¢n Issue No.2, the Tribunal
has observed that apart from the fact that there are no specific G
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 H
404 SUPREME COURT REPORTS [2010] 2 S.C.R.

A (Ex.P4) were false or that 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 Tribunai has held that the letter/pamphlet
B 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,
C appearing on behalf of the appellant, confined his challenge to
the finding of the Tribunal ori 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
D 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
E the factum of communal speeches being made by the
respondent and/or his agents, is palpably Efrroneous and,
therefore, deserves to be set aside.

9. Mr. K.V. Vishwanathan, learned senior counsel,
F 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
G Section 123 of the Act, the appellant was required to prove with
cogent evidence that the speeches recorded therein were, in
1n
fact, made by the respondent and his agents. 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
H
TUKARAM S. DIGHOLE v. MANIKRAO SHIVAJI 405
KOKATE [D.K. JAIN, J.]
on a decision of this Court in Amar Nath Agarwal/a vs. Dhillon A
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.

10. ~he short question for consideration is whether the B
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?
c
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 D
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 E
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 F
Ram vs. Jaswant Singh Chouhan 2, 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 G
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
1. (2007) 4 sec 306.
2. (1975) 4 sec 769. H
406 SUPREME COURT REPORTS [2010] 2 S.C.R.

A 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
B 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
c reasonable doubt."

(emphasis supplied)

13. In Jeet Mohinder Singh vs. Harminder Singh Jassi3,
a Bench of three judges of this Court, summarising the
D 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:
E "(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
F 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
G 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
----
H 3. (1999) sec 386.
~
TUKARAM S. DIGHOLE v. MANIKRAO SHIVAJI 407
KOKATE [D.K. JAIN, J.]
character. If substantiated, it leads not·only to the A
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 B
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 c
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 pfobabilities would not be enough. There would
0
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 E
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 petition has been vested in a Judge of the F
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 evidern:.e. The Supreme
Court may re-assess the evidence and come to its G
own conclusions on feeling satisfied that in
recording findings of fact the High Court has
disregarded settl.ed principles governing the
approach to evidence or committed grave or
palpable errors." H
•.

408 SUPREME COURT REPORTS [2010] 2 S.C.R.

A 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-
s 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 read_s as foUows:

c "(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
D appeal to, national symbols, such as thP. 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:

[Provided that no symbol allotted under this Act to a
E
candidate shall be deemed to be a religious syrnbol 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
F 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
G '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
H obtained from the Election Commission, it was a public

.... ·~.
TUKARAM S. DIGHOLE v. MANIKRAO SHIVAJI 409
KOKATE [D.K. JAIN, J.]
document and therefore, the burden of proof which lay on him A
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 8
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 C
following Sections. To put the matter briefly, the general rule is
that secondary evidence is n.ot 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 D
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 E
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.

18. However, in the pres~nt case, the dispute is not F
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 G
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
H
410 SUPREME COURT REPORTS [2010] 2 S.C.R.

A 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:
B "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
c 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
D examined himself has not adverted to this video 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
E 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
F 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
G
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

H
TUKARAM S. DIGHOLE v. MANIKRAO SHIVAJI 411
KOKATE [D.K. JAIN, J.]
documents. The Petitioner has not proved the receipt A
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."
B
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 C
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 any cogent evidence
regarding the source and the manner of its acquisition, the
·authenticity of the cas.sette was not proved and it could not.be
read in evidence despite the fact that the cassette is a pubhc D
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 E
importance than the first one. It is well settled that tape-records
of speechP.s 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 F
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 G
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, such evidence has to be received with caution.

4. (1976) 2 sec 11. H
412 SUPREME COURT REPORTS [20101 2 s.c,.R.

A 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
B to be more stringent as compared to other documentary
evidence.

21. In Yusufalli Esmail Nagree vs. State of Maharashtra 5 ,
this Court observed that since the tape-records are prone to
C 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.

D 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
E with 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
F 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.
G
(b) Accuracy of what was actually recorded had to be
proved by the maker of the record and satisfactory

5. (1967) 3 SCR 720.
-
H 6. (1975) 2 ALL E.R. 464.
TUKARAM S. DIGHOLE v. MANIKRAO SHIVAJI 413
KOKATE [D.K. JAIN, J.]

evidence, direct or circumstantial, had to be there so as A
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." B
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.
c
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
'of the cassette as well as the accuracy of the speeches
purportedly made by the respondent. Admittedly, the appellant o
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 E
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/-.
F
R.P. Petition dismissed.

7. " 1985 (Supp) sec 611.
a. (2009) a sec 106.