Punjab-Haryana High Court
Rulia Ram S/O L. Panna Lal vs Multan Singh S/O Ram Lal on 25 May, 1959
Author: I.D. Dua
Bench: I.D. Dua
JUDGMENT I.D. Dua, J.
(1) This appeal which is directed against the order of the Election Tribunal, Karnal, dated 6-3-1959 dismissing the election petition filed by Shri Rulia Ram defeated candidate relates to the election to the Punjab Legislative Assembly (Vidhan Sabha) from Gharaunda Constitutency held in 1957. There was a triangular contest between Chaudhri Multan Singh, the successful candidate, Rulia Ram petitioner and Puran Sing respondent No. 2; and Chaudhri Multan Singh, the successful candidate, won the election by a very narrow margin of votes as against Shri Rulia Ram; Multan Singh having secured 16,943 votes and Rulia Ram 16,719. Polling in the constituency took place on 24-2-1957 and votes were counted on the following day i.e., 25-2-1957 on which date the result was also declared.
(2) Shri Rulia Ram, one of the defeated candidates, feeling aggrieved, filed the present election petition challenging the election of Chaundhri Multan Singh on a number of grounds giving rise to the following 24 issues;
1. Did respondent No. 1 himself, and Arjan, Risala and Ranjit Singh, Published statements contained in poster 'A' and 'AI'?
2. If issue No. 1 is proved, whether the statements contained in annexure 'A' and 'AI' are false, which respondent No. 1 belives to be false and does not believe to be true?
3. Whether the statements referred to above relate to the personal character and conduct of the petitioner?
4. Whether respondent No. 1 published these posters on 20-2-1957 and the same were distributed on the same day in the morning at village Kohand by respondent No. 1 and by Risala?
5. Whether Shri Risala distributed and pasted the above posters in village Kohand at some houses and Chaupal in the morning and in the evening on the same day in village Sheikhupura?
6. Did Ranjit Singh on 20-2-1957 distribute and paste these posters in villages Kemla Pundri and Alipur Khalsa in the morning, noon and evening respectively?
7. Did respondent NO. 1 and Shri Arjan on 21-2-1957 distribute and paste in villages Balla, Gagsina and Bal these posters in the morning, in the noon and in the evening respectively and whether that has materially affected the result of the election?
8. Did respondent No. 1 and Shri Ranjit Singh distribute and paste the posters in villages Padha and Gharaunda on 22-2-1957 in the morning and in the evening respectively?
9. Did respondent No. 1 heir or procure on payment tongas of Mulkh Raj and Daryai Lal of Gharaunda for carrying the voters from their residence to the polling stations?
10. Did respondent No. 2 carry any voter for the same purpose in the tongas mentioned above?
11. Whether respondent No. 2 on 18-2-1957 gifted and paid gratification of Rs. 200/- to the Bairagi caste voters of village Goli through Chandgi Ram for construction of a Chaupal? If so, whether the same has materially affected the result of the election?
12. Whether the polling at booth No. 20 could not be started till 9:30 A.M. at village Arainpura? If, so, has to materially affected the result of the election?
13. Whether at booth Nos. 28 and 29 at village Balla the polling could not be started till 10 A.M. and at booth No. 30 till 9 A.M. and at booth No. 31 till 9:25A.M.? If so, has it materially affected the result of the election?
14. Whether the polling was stopped at 3:30 P.M. at booths Nos. 28 and 29, at 3:45 P.M. at booths Nos. 30 and 31 at village Balla? If so, has it materially affected the result of the election?
15. Whether the polling at village Gagsina was started at 10 A.M. and stopped at 3:45 P.M. at booth No. 36 and whether the polling at booth No. 37 of the same village was started at 9:30 A.M.? If so, has it materially affected the result of the election?
16. Whether the Polling Officers on polling stations Nos. 28 and 29 in village Balla stopped the polling at 3:30 P.M. and on booth Nos. 30 and 31 at 3:45 P.M. and if it is proved, ahs it materially affected the result of the election?
17. Did Shri Mul Chand Jain, Ex-Minister meet the Polling Officers and held out promises and favours to the voters, if they would vote in favour of respondent No. 1, and exercise undue influence? If so, has it materially affected the result of the election?
18. Whether Shri Mul Chand Jain appealed to the Jain Brotherhood of village Balla in a general meeting at polling stations Nos. 28 to 31 on 23-2-1957 to case their votes in favour of respondent No. 1 and was respondent No. 1 also present in the meeting and actively connived at the unauthorised manner of canvassing? If it is proved, whether the same has materially affected the result of the election?
19. Did respondent No. 1 get persons to impersonate for some dead persons mentioned in annexure 'B'?
20. Did respondent No. 1 and Shri Ranjit Singh get other persons to impersonate for Rati Ram, Dalip Singh and Hari Sigh?
21. If issues Nos. 19 and 20 are proved, whether it has materially affected the result of the election?
22. Is Shri Shiv Ram M. A. a public servant within the meaning of S. 123(7) of the Representation of the People Act?
23. If issue No. 22 is proved in the affirmative, then whether Shri Shiv Ram M. A. presided over the meeting in village Gharaunda on 20-2-1957 and on 21-2-1957 in village Kalaram and the same were attended by respondent No. 1 and addressed both by Shri Shiv Ram M. A. and addressed both by Shri Shiv Ram M. A. and respondent No. 1?
24. If issue No. 23 is proved, whether it has materially affected the result of the election?
The learned Tribunal decided all the issues against the petitioner and upheld the election. Broadly speaking, the allegations in the election petition related to the following charges:
1. Publication of statements relating to the personal character and conduct of the petitioner.
2. Hiring or procuring of vehicles for the conveyance of voters to polling stations.
3. Giving bribe to Bairagi voters with the object of inducing them to vote for Chaudhari Multan Singh.
4. Late starting and early closure of polling at some of the polling stations in contravention of the provisions of the Representation of the People Act, 1951.
5. Undue influence by Shri Mool Chand Jain, Minister P. W. D., Punjab, for securing success of Multan Singh.
6. Impersonation for admittedly dead persons and for some others.
7. Employment of Shiv Ram M. A. a public servant to canvass for Multan Singh etc. On appeal the learned counsel for Shri Rulia Ram has taken us through the record and has reagitated only the first four grounds mentioned above. With respect to the charge relating to publication of false statements of fact relating to personal character or conduct of Shri Rulia Ram, along with the election petition. Annexures 'A' and 'AI' were attached by Shri Rulia Ram. The main subject-matter of both the annexures is the same but in Annexure 'A' a photograph purporting to be of Shri Rulia Ram with a lady in black ink appears at the top, and in the righthand bottom corner the name of the press is stated to be "Ala Press Chandni, Chowk, Delhi", whereas in Annexure "AI' a similar photograph at the top is shown in red ink and at the bottom are printed the following words in bold letters: "Pesh Karda Multan Singh". In the left hand bottom corner the names of two printing presses are printed; (i) 'Sansar Electric Press, Karnal and (ii) "Nakal Ala Press Chandni Chowk, Delhi'. So far as the subject matter of these two posters is concerned at the top, is stated "Shri Lala Ji Ki kali kartooten" and below the photographs are the following 16 verses purporting to describe and convey the antecedents of Lala Ji:
"1947 tak Hindu Sabhai mauqa pa kar Congress apnai, Mar kat main khub dhan loota aish-o-ishrit ka gulshan loota.
Bania, Brahman, Balmiki, Nai jo phansa us ki hajamat banai.
Bakhshe nahin Chamar aur Saini jiski phansi hajam kar laini.
Mandir, Masjid, Chaupal, Chaubare gande kiye sthan sare.
Piara bana ek Brahman loota karja liya aur phir gal ghoonta.
Is per bhi kuchh saber na aya zulam-o-sitam kar door bhagaya Chhore nahin sage aur piarey un ko bhi dikhliye nazare.
Akhar qist kara chutkara daulat ka pakra sahara.
Karmashh farm rang rangili dam mohabat phansi chambeli.
Pichha kiya Jagadhri ja kar jan bachai hath jor kar.
Is per bhi saber na aya sath beth kar photo khichwaya.
Thik batao kuchh samajh main ai aya hae Lala bhai.
Kali kartooten dhek laina is per vote Congress ko dena.
Chhori nahin sarkar bichari 12-3-56 hui griftari.
Zamanat de tab bachi bhigi billi ghar ko ai.
(3) The counsel for the appellant has taken us through the evidence of Hukam Chand P. W. 4, Proprietor of the Sansar Electric Press, Karnal, for the purpose of showing that he had printed the poster, Exhibit P. D., at the instance of Chaudhari Multan Singh on 19-2-1957. He has deposed that Chaudhari Multan Singh brought to him the poster, Exhibit. P. C., and a photograph of a lady and a gentleman. It may be mentioned that Exhibit P. C. is a copy of Annexure 'A' minus the photograph and the line at the top "Shri Lala ji ki kali kartooten". On this document there are notes in red ink purporting to connote as to what was intended to be done or printed by Hukam Chand, Proprietor of the above Press.
Exhibit P. D., purports to be the final shape given to the poster, Exhibit. P. C., this witness. He has deposed that Chaudhri Multan Singh came to him on 19-2-1957 and asked him to prepare 500 copies of the poster on that very day. The witness expressed his ability to complete the job only 4 or 5 P.M. on the following day. The charges were settled at Rs. 33/- in all. After making over the poster, Exhibit. P. C., to his compositor, Hukam Chand took the photograph to Delhi for preparing the block. The following day he handed over the finished posters to Chaudhri Multan Singh at 4 or 5 P.M. In cross-examination the witness has admitted that it was 8 or 8-30 A.M. on 19th of February, when Chaudhri Multan Singh went to him; he, however, did not remember if Chaudhri Multan Singh was accompanied by anyone else. It has been admitted that he did not take signatures of Chaudhri Multan Singh anywhere but because the order had been placed by Chaudhri, Multan Singh, he wrote "Pesh karda Multan Singh" on the poster.
He has further stated that he does not keep any order from nor has he got any printed receipts. He has also denied maintenance of any rokar or khata. Indeed, he has said that he does not keep any accounts with him. That his real brothers, Shri Ram Sarup, was a Congress M. L. A. from 1951 to 1957 and that he (Ram Sarup) did not succeed in securing Congress ticket for the election in dispute, in spite of best efforts, has also been admitted by him. His memory, however has conveniently failed him when asked about the katib of the poster in question. When questioned about his visit to Delhi for getting the block prepared he stated that he left for Delhi at 9 or 9-30 A.M. and returned to Karnal on the same day by train reaching Karnal at about 1-30 in the morning.
His memory again failed him when he was asked about the name of the firm from which he got the block prepared. He, therefore, admitted block. He would also have us believe that he did not care to read the poster in question except when that he had paid approximately Rs. 4/- for the proof was brought to him. The statement made by this witness was not believed by the Tribunal and the counsel for the appellant has completely failed to convince us that the Tribunal was in any way wrong in doing so. His statement was recorded in July 1957 with respect to an incident which had taken place just five months earlier.
The subject-matter of this poster was not an ordinary stereotyped or common place material and it would certainly have attracted the attention of any average human being in the position of Hukam Chand as soon as an order for printing the poster with the photograph and the heading "Lala ji ki kali kartooten" was given to him. The statement of this witness that he did not care to read the poster till the proof was placed before him does not seem to be natural or reasonable. Similarly his failure to remember the name of the firm from where he had got the block prepared at Delhi has a very unnatural ring about it. The sum of Rs. 33/- in all, for doing the whole job including a visit to Delhi, which entailed absence for a whole day from the witness's place of business would also appear to be rather inadequate, for printing the prima facie defamatory material. I have therefore, no hesitation in holding Hukam Chand P. W. 4 to be a wholly untrustworthy witness.
In this view it is hardly necessary to refer to the testimony of R. W. 18 Man Singh who has stated in the witness-box that he had got the poster like Exhibit P. L. printed through a friend of his, by name, Jaidev Singh of Khajur Road, Karol Bagh,. Delhi. Chaudhri Multan Singh respondent as R. W. 30 has of course denied having anything to do with the printing or publishing of the posters in question. Exhibit P. F. a letter dated 28-3-1957 purporting to have been written by Hukam Chand to Shri Kidar Nath Sawhney, counsel for the petitioner-appellant, appears to me to be a clumsy attempt at creating evidence. The letter in reply to which Exhibit P. F. was written has, curiously enough, not been produced. In any case this letter certainly suggests that in March 1957 Hukam Chand must have come to realize the importance of these posters, and his memory, had the facts been true, would, normally speaking, not have failed him.
(4) The counsel for the appellant next took us through the evidence with respect to publication of the posters in the various village. Regarding village Gagsina the counsel relied on the testimony of P. W. 9 Rati Ram and P. W. 35 Badlu Ram. Rati Ram undoubtedly is Sarpanch of the Gram Panchayat of his village, but it is clear that he is a strong partisan of the petitioner and was admittedly a party to the resolution passed by the Panchayat, after the result of the election had been declared, expressing resentment over the alleged belated starting and closing of the polling before due time. This resolution, it may be noted, appears to have been intended to supply evidence in support of the allegations of the petitioner-appellant contained in the election petition with respect to the violation of the provisions of the Representation of the People Act.
Badlu Ram P. W. 35 too is a Lambardar and a Panch of village Gagsina. He states that on 21st of February, at about 10 A.M. or so Chaudhri Multan Singh visited his village and read out posters of red colour of the type of Exhibit P. K. and pasted and distributed them. This witness like Rati Ram P. W. 9 is also a party to the resolution mentioned above and his testimony is equally interested and is no better than that of Rati Ram. The counsel for the appellant has in this connection emphasised that the statement of R. W. 16 Kabul Singh produced by the respondent also supports the petitioner's allegation that posters like Exhibits P. K. and P. L. were pasted to the Chaupal of the village 3 or 4 days before polling and that Chaudhri Multan Singh respondent had himself gone to village Gagsina for distributing and pasting similar posters. As a matter of fact this witness had been produced by the respondent merely for the purpose of contradicting the petitioner's evidence that the resolution, Exhibit P. J. 1, was in his handwriting.
In cross-examination he made the damaging statement mentioned above against the respondent. In my view, this witness is obviously interested in the petitioner appellant, inasmuch as he was like P. W. 9 and P. W. 35, a party to the resolution, Exhibit. P. J. 2, by which evidence was obviously sought to be created in support of the allegation that polling in this village had started late and closed earlier than due time. I would, therefore, in agreement with the learned Tribunal, hold that the evidence with respect to the publication of the posters in village Gagsina is not disinterested and reliable enough so as to justify a finding of corrupt practice having been committed by or with the consent of Chaudhri Multan Singh or of his agent.
(5) Next village taken up by the counsel for the appellant is Sheikhupura where, it is alleged, that on 20-2-1957 Chaudhri Multan Singh accom0panied by 4 other men read out and pasted the posters of the type of Exhibit P. L. Pyare Lal P. W. 32, a shop-keeper of this village, is the only witness in support of this allegation and he was admittedly a worker for Shri Rulia Ram during the election. He saw only one poster pasted and is said to be an unsummoned witness, having been called by Shri Rulia Ram 2 or 3 days earlier for appearing as a witness. I do not think the testimony of this witness can be considered to be sufficiently trust worthy to establish the commission of the alleged corrupt practice. R. W. 6 Dharam Singh who is also a resident of Sheikhupura and is literate has stated on oath in rebuttal that he did not see posters like Exhibits P. C. and P. D. during the election days. It is true that he is an employee of the Panipat Sugar Mills and Chaudhri Multan Singh respondent is one of its Directors. But having held that no weight can be attached to the testimony of P. W. 32 Pyare Lal, it was hardly necessary for the respondent to lead any evidence in rebuttal.
(6) With respect to village Kemla P. W. 13 and P. W. 25 have been produced by the petitioner. P. W. 13 Shugan Chand is undoubtedly a member of the Panchayat and an ex-Sarpanch. He has stated that at about 8 or 9 A.M. 4 days before polling (which would come to 20-2-1957) Ranjit Singh nephew of Chaudhri Multan Singh visited Kemla and canvassed for his uncle and pasted posters on the walls. This statement is a little difficult to believe and I am inclined to doubt its correctness on the ground that according to the petitioner-appellant the posters were delivered to Chaudhri Multan Singh in the evening on 20-2-1957. If that be the appellant's case, then it is not understood how the posters could be pasted by Ranjit Singh in this village on the morning of 20th of February.
It is contended by Mr. Gupta that Exhibit P. L. is different from Exhibit P. K. and that the petitioner-appellant might have got with him, on the morning of 20th of February, posters like Exhibit P. L. which he may have got printed from someone else. This argument has not carried conviction with me. If Chaudhri Multan Singh had in his possession posters like Exhibit P. L., then where was the necessity of his approaching Hukam Chand P. W. 4 with a request to have a fresh block of the photograph made for getting similar posters printed? The counsel for the appellant has contended that according to the testimony of R. W. 18, who is an admitted enemy of Shri Rulia Ram, this witness had got similar posters printed and therefore Chaudhri Multan Singh might well have got these posters from him and utilised them.
In my view, there is absolutely no reliable and convincing material on the record, in support of this submission. P. W. 13 would also have us believe that before reading this poster he was inclined to vote for Shri Rulia Ram but after reading it he changed him mind. When cross-examined, this witness could not remember either his vote number or even his ward number. A man with such convenient or perhaps faulty memory can hardly be considered to be a reliable witness for establishing commission of a corrupt practice. The statement of P. W. 25 Ratan Lal from village Kamela is no better than that of P. W. 13. These two witnesses, in my opinion, are not truthful enough to support a finding of corrupt practice on their testimony. It may, in this connection, be also mentioned that R. W. 23 Ram Chander who is about 60 years old and is a member of the Panchayat of Kamela has stated in rebuttal that Shugan Chand was a supporter of Shri Rulia Ram; this witness has also denied having seen any posters being distributed or pasted in his village during the elections.
(7) With respect to village Pundri, P. W. 10 is the only witness who has supported the pasting of the posters in question in this village. This witness has deposed that being literate in Urdu he himself read the poster with a picture of a male and a female on it. In cross-examination he has stated that it was written in the poster that Lalaji has eloped with a lady. But with respect to further details of its contents his memory very conveniently failed him. It is also noteworthy that this witness like P. W. 32 has deposed that it was on the morning of 20th February, at about 10 or 11 A.M. that Chaudhri Multan Singh went to village Pundri with the posters. For the reason for which I have disbelieved P. W. 13 Pyare Lal I would also unhesitatingly disbelieve P. W. 10. R. W. 22 and R. W. 24 have been produced on behalf of the respondent in rebuttal. It is, however, not necessary to refer to their testimony because P. W. 10 has not been relied upon by me.
(8) With respect to village Alipur Khalsa also there is only one witness i. e. P. W. 12 Prabhu Dayal. Although he is also Sarpanch of the village yet it is difficult for me to place implicit reliance on his testimony. On 20-2-1959 at about 4 or 5 P. M. according to this witness, Ranjit Singh, nephew of chaudhri Multan Singh, went to this village and read out a poster to the public at large. This story of Ranjit Singh reading out the poster which is in verse, to the public at large has not impressed me to be either reasonable or natural. Posters of this type are, normally speaking, more likely to be pasted rather than read out to the public at large. Besides, as not above, it was on 20th of February at about 4 or 5 P. M. that Chaudhri Multan Singh got delivery of the posters from Hukam Chand P. W. 4. If that be the position, then it is difficult to believe that Ranjit Singh could be in village Ali Khalsa with such posters at the stated time. It is contended by the counsel for the appellant that the posters pasted in this village were of the type of Exhibit P. L. but I have already repelled this contention in connection with village Kemla and nothing new has been shown why it should prevail with respect to this village.
(9) With respect to village Balla, P. W. 30, P. W. 38 P. W. 39 and P. W. 44 have been produced. With the exception of P. W. 39 all other witnesses are unsummoned. These witnesses are obviously interested in Rulia Ram, being his active supporters and therefore it is difficult to place implicit reliance on their testimony. The statement of P. W. 39 Puran Singh, on the fact of it, shows that he is prepared to go almost to any length in supporting Shri Rulia Ram's case, for example he would have us believe that on the polling day the Polling Officer actually refused to permit about 150 or 175 persons to vote and left the polling station before the appointed time in spite of protests.
It is, however, interesting to note that he could not give the name of even one voter out of the whole group of 150 or 175 persons who, according to him were supposed to have been deprived of their right to vote, by the illegal and premature closure of the polling office before the due time. His statement has not at all impressed me as the statement of a truthful witness. The other unsummoned witnesses are equally unreliable and unimpressive, if not worse. I would, therefore, in agreement with the Tribunal, be disinclined to place implicit reliance on the testimony of these witnesses. The respondent has in rebuttal, with respect to this village produced R. W. 4 Zila Singh. The evidence of R. W. 10 Arjan Singh is not helpful to either side, but as I have not placed reliance on the evidence of the appellant's witnesses, it is not necessary to consider in detail the evidence let in rebuttal.
(10) The counsel for the respondent has, in connection with the question of appreciation of oral evidence, so far as the Court of appeal is concerned, referred us to Baru Ram v. Prasanni, AIR 1959 SC 93, where Gajendragadkar J., has at page 96 emphasised that in dealing with an appeal under S. 166A of the Representation of the People Act High Courts should normally attach importance to the findings of fact recorded by the tribunal when the said findings rest solely on the appreciation of oral evidence. This rule of practice, which has been emphasised in this judgment, was also adumbrated in Sarju Pershad v. Jwaleshwari Pratap Narain Singh AIR 1951 SC 120, by Mukherjee J., while dealing with appeals under the Code of Civil Procedure. So observed his Lordship:
"Where the decision on a question of fact depends upon the appreciation of the oral evidence, the appellate Court has to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court not competent to reverse a finding of fact arrived at by the trial Judge. The rule is--and it is nothing more than a rule of practice--that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact".
For this observation reference was made to W. C. Macdonald v. Fred Latimar AIR 1929 PC 15. The right to appeal conferred by S. 116A of the Representation of the People Act, 1951, is not more restricted or limited than the right of appeal, which exists from original decrees passed by Civil Courts under the Code of Civil Procedure; indeed, this section itself clearly confers on the High Court the same posers, jurisdiction and authority which it exercises in its Civil appellate jurisdiction, on appeals against original decrees passed by Civil Courts.
It is thus obvious that the rule laid down in AIR 1959 SC 93 does not place any greater restriction on this Court while hearing appeals under S. 116A of the Representation of the People Act, than what exists in its ordinary civil appellate jurisdiction. However, after weighing the entire evidence led in this case on the point of publication of the posters in question, in my view, no sufficient ground has been shown to us by the counsel for differing from the final conclusion of the learned Tribunal on the credibility of the petitioner's witnesses. In my opinion, the petitioner has completely failed to establish publication of the alleged posters by the respondent or his agent or with their consent, by unimpeachable and trustworthy evidence.
In this connection it would not be out of place to state that the petitioner's witnesses who have deposed on this point largely hail from the villages which are his principal strong-hold and from where overwhelming majority of votes were secured by him. It is contended by the counsel for the respondent and, in my view, not without some plausibility that from this area it was not at all difficult for the petitioner-appellant to secure witnesses to say whatever he desired. It has also been contended by the counsel for the respondent that there was no contradiction to the contents of these posters, issued by the petitioner. This failure to contradict the damaging statements of fact contained in the posters, according to the counsel show that in all probability no such statements were at all published. It is true that in some cases such failure to issue a contradiction has been taken into account in determining the probability of the publication of such false statements.
In the present case, however, the petitioner ahs explained his omission to issue such a contradiction by stating that he was much too busy with his election campaign. This explanation may or may not be quite true and convincing. It, however, does appear to me that if the publication of the posters in question was not very extensive and wide-spread, and if it was not likely or calculated to effectively prejudice Shri Rulia Ram's prospect of election, then he might well have abstained from wasting his time, in issuing a contradiction; besides, such a contradiction might also have been considered likely to provide greater publicity to the original false statements, by bring them to the notice of a larger number of people, including even those voters who may not have an occasion to read the original posters.
I have made this observation because on the present record it does appear, that even according to the petitioner's own evidence, these posters were not very widely circulated or published. But be that as it may, for the reasons discussed above, I am clearly of the view that the publication of the posters, as alleged, has not been established on this record. I am further of the opinion that the petitioner-appellant has not been able to show that the statements of fact, contained in those posters, are false and that the respondent or his agent believed them to be false or did not believe them to be true. It has not been disputed that the onus of establishing the falsity of the statements or the belief or want of belief, as the case may be, is on the person who seeks to establish the commission of the corrupt practice contained in S. 123(4) of the Representation of the People Act.
It has, however, been contended by Mr. Dalip Chand Gupta, the learned Advocate for the appellant, that Chaudhri Multan Singh had actually denied all knowledge of the posters, in his written statement but in his deposition as a witness he has, on the contrary, stated that all the facts entered in the posters, Exhibits P. K. and P. L., are true to his knowledge and apply to Shri Rulia Ram petitioner; he has also stated that these facts were in his personal knowledge prior to the election in dispute. From this, the counsel wants us to conclude, that Chaudhri Multan Singh is capable of making statements to suit the occasion, without caring whether they are true or false and therefore we should conclude that the contents of the posters in question were false to his knowledge.
I am unable to accede to this contention. The onus being on the petitioner to prove that the statements of fact contained in these posters were false to the knowledge of Chaudhri Multan Singh, if his evidence is not trustworthy then a mere denial contained in Chaudhri Multan Singh's written statement would hardly be sufficient to establish that the statements were false to his knowledge or that he did not believe them to be true. In this connection I have undoubtedly been influenced by Exts. R. 1. R. 3 and R. 4. These documents clearly shows that the petitioner does not possess very creditable or enviable antecedents and the facts contained in the posters were in fact the subject-matter of a representation made by 32 persons of Gharaunda, to the Deputy Commissioner, Karnal in August 1956. The statement of Shri Rulia Ram as his own witness has not contributed, in the least, in removing the unfavorable impression created on my mind, about his reputation or his personal character or conduct. If anything, his own testimony has strengthened those unfavorable impressions. I would thus also uphold the finding of the learned Tribunal on this part of the case.
(11) The counsel for the petitioner then addressed us on issues Nos. 9 and 10 which relate to the corrupt practice contained in S. 123(5). Two tonga drivers, P. W. 5 and P. W. 6, have been produced in support of this corrupt practice. In addition, P. W. 29 Tika Singh has stated that Chaudhri Multan Singh had disclosed to him that he had engaged two or three tongas belonging to Daryai Lal and Mulkh Raj for carrying the voters. Rulia Ram's own statement has also been relied upon in this connection by the counsel. I am afraid, it is not possible to place any reliance on the vague and most unprecise statement of these witnesses. Tika Singh's statement regarding the alleged admission of Multan Singh appears to be hardly natural or plausible. In any case, it is not at all safe to set aside elections on the testimony of such witnesses. It is hardly necessary in this connection to refer to R. W. 11 who was produced in rebuttal.
(12) The counsel net took up issue No. 11 which deals with the corrupt practice contained in S. 123(1) of the Representation of the People Act. This corrupt practice deals with "bribery" which is described as any gift, offer or promise by a candidate or his agent or by any other person, of any gratification to any person whomsoever with the object, directly or indirectly, of inducing:
(a) * * * *
(b) an elector to vote or refrain from voting at an election or as a reward:
(i) * * * *
(ii) an elector for having voted or refrained from voting.
I have reproduced only that portion of the section which is relevant for our purposes. The counsel has contended that Chaudhri Multan Singh had paid a sum of Rs. 200/- to Chandgi Ram P. W. 14 for securing the Bairagi votes and this sum constituted a contribution towards the construction of a Chaupal for the Bairagis in Mauza Goli. P. W. 14, P. W. 15 and P. W. 16 are the three witnesses, on whose testimony, reliance has principally been placed. It is, however, significant that no writing or entry in any account-book or note-book is forthcoming with respect to this payment. Chandgi Ram, P. W. 14 who is said to have received the amount directly from Chaudhri Multan Singh made it over to Kashi Ram Sarpanch P. W. 16.
This Kashi Ram has come in the witness-box and has deposed that the Chaupal in question was intended from 40 or 50 houses only, belonging to Bairagis of Nain and Gathwala gots. He has further deposed that their Panchayat had decided that Rs. 25/- per every male should be charged from a well-to-do Bairagi towards the cost of its construction. He has also stated that about 4 or 5 thousand rupees were collected in this account. If that is so, then one would naturally have expected some kind of an account evidencing or recording the contributions made by the various donors in this account. In fact, Kashi Ram ahs stated that he had been writing the accounts on a paper and that when the Chaupal was completed, then he gathered his brother, hood and explained the accounts to them. No accounts have, however, been produced in the present case. In re-examination an attempt was made to secure an explanation from Kashi Ram for their non-production when he stated that the paper on which the accounts had been maintained were torn off after they had been explained to the brotherhood.
Dhanpat Ram P. W. 15 has, however, contradicted P. W. 16 in this connection and has stated that the Chaupal is still incomplete. This statement does come into direct conflict with that of Kashi Ram who has expressly stated that on the completion of the Chaupal he gathered the brotherhood and explained the accounts to them and then destroyed the account. It is difficult for me to place implicit reliance on the testimony of these three witnesses and I do not think it is safe to base a finding of the commission of corrupt practice of bribery on this kind of unimpressive and inconsistent evidence. The counsel for the respondent also made a faint-heated attempt to contend that in law the allegations contained in the petition do not amount to bribery. It is not possible for me to uphold this contention.
It is true that bona fide charity or gift may be permissible but if charitable donation or gift takes a subtle from of bribery or if bribery is sought to be concealed in the guise of charity, then it is not possible to consider it to be unobjectionable. Whether or not a charity or a gift is innocent, the time and the circumstances have a very important bearing. Charities and gifts to voters at the time of elections do invite a strong suspicion and candidates would be well advised to avoid them at election times. In the instant case, however, if the allegations are established then they cannot be taken out of the definition of "bribery". But, as stated above, I am inclined to hold that the allegations contained in the petition have not been proved. The contention that the respondent did not in fact secure the Bairagi votes can be dismissed on the ground that merely because bribery has not borne fruit is wholly immaterial, and even an attempt to bribe falls within the mischief. In view of this discussion, I must affirm the conclusion of the Tribunal on issue No. 11 as well.
(13) lastly the counsel for the appellant has contended that the decision of the Tribunal under issue No. 12 is incorrect. He has taken us through the evidence of the witnesses on the question of late starting of the polling and its early closure. It is true that as stated by Shri Puran Singh, Senior Superintendent of Police, P. W. 1 and Mian Bhag Singh, Deputy Commissioner, Karnal, P. W. 2, in village Arainpura the polling started about 10 or 15 minutes late, after the scheduled time, because there was something wrong with the ballot boxes. In my opinion, however, in order to succeed on the basis of this allegation it is to be established that on account of this irregularity or illegality the result of the election has been materially affected; vide S. 100(l)(d)(iv).
On the present record there is no reliable material to come to the conclusion that by delay of 10 or 15 minutes in starting the polling any voters were prevented from exercising their electoral right. As a matter of fact, it has been contended by the learned counsel for the respondent, that unless it is shown that by this later starting of polling 224 voters who wanted to vote for Rulia Ram were prevented from casting their votes in his favour and they voted for Multan Singh, the election cannot be considered to be materially affected and cannot be set aside on this ground. It may be remembered that Rulia Ram had lost the election by a margin of 224 votes. On the present record, however, it is not possible for me safely to find that any voter was prevented from casting his vote on account of delay of 10 or 15 minutes in starting the polling. In so far as the early closure is concerned, the evidence led by the petitioner-appellant is most unsatisfactory and is hardly worthy of credence.
The witnesses have deposed that when they complained to the Polling Officer concerned he told them that it was 4 P.M. and that the time fixed had expired. No complaint in this connection is stated to have been contemporaneously or even later made by any voter or candidate to the higher authorities. In my view an irregularity or illegality of the kind suggested by the petitioner-appellant, in the present political consciousness would, generally speaking, have immediately brought forth a number of complaints from the candidates, the political parties and the electors etc., to the higher authorities; absence of such complaints is thus not without significance. I have, therefore, no hesitation in holding that the allegations which are the subject-matter of issue No. 12 have not been satisfactorily proved on this record.
(14) It is well settled that an election is not to be lightly set aside. It is true that purity of election is the first priority in all democratic states, but at the same time it must not be forgotten that setting aside of election is set aside, the tribunal must be fully satisfied that the impugned election has actually been affected by the alleged corrupt practices. Suspicions or surmises or mere possibilities are not enough. I am not unmindful of the observations of A. K. Sarkar J. in Dr. Y. S. Parmar v. Hira Singh Pal, AIR 1959 SC 244, that mens rea or criminal intention is not necessary to establish under the Indian Law relating to corrupt practices, but, in my view, it does not mean that the charges of corrupt practices can be held established without being proved beyond the possibility of a reasonable doubt. The test in weighing the evidence led in such cases is generally similar to the one applied in criminal trials: See Balwant Rai v. Bishan Saroop, F. A. No. 164 of 1958 (Punj).
(14a) For the reasons given above, this appeal fails and is dismissed with costs.
D. Falshaw, J.
(15)I AGREE.
(16) Appeal dismissed.