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In order to substantiate the averment that the evidence of P.W. 35 is trustworthy, it is contended that he had filed Exts. 42 and 43 with the election office even before the date of polling and that the Collector and District Magistrate as also his Deputy Ramteke P.W. 18 had seen those pamphlets two or three days before the date of the polling. The evidence of these witnesses, it is contended, corroborates the evidence of P.W. 35 that he printed those pamphlets before the date of the polling and had filed copies thereof at the election office. Apart from the fact that these pamphlets were printed by P.W. 35, it has also to be established that they were printed at the instance of the first respondent or his agent or some other person with his consent, and were published and distributed before March 5, 1972, the date of poll.

The learned Advocate for the first respondent states that even this submission does not help the appellant's case. If the evidence of Bhole P.W. 40 is read with the evidence of this witness, it would appear that the pamphlets were delivered to Bhole and Sheoshankar Ninawe on February 16, 1972, eight or fifteen days after this date he came to know that the copies of the pamphlets have to be filed in the election office, and two or three days thereafter he filed them. On this reckoning, it is contended that the pamphlets were filed in the election office about March 5, 1972, which was the date when the poll was held. If so, the possibility of these pamphlets being printed and filed in the election office after the date of the poll becomes probable. In support of this contention, it is pointed out that these two pamphlets did not find a place in the first list of documents comprising items 1 to 41 filed by 1 R.W. 12 in the fourth week of March 1972. These pamphlets were only shown in the supplementary list of documents prepared in September 1972 by T. Zanjal (1 R.W. 13). According to this witness the pamphlets were seen by him in May 1972. Though the Collector and District Magistrate, Bhandara, Mr. Narayan Wasudeo Patankar P.W. 38 says that he saw these two pamphlets sometime before the polling when they were brought to his notice by the District Deputy Election Officer, on going through them he did not find that they, raised any law and order problem. It is stated that this evidence has not been challenged in cross-examination. On the other hand, the contention is that this officer merely spoke from memory and could have been mistaken as to the exact time when the offending pamph- lets were brought to his notice. In his examination-in- chief it has been stated by him that as far as he remembered the two pamphlets-were appeals to particular communities in the matter of voting. It is true that after a lapse of time, it is difficult to rely upon one's memory' and it is not possible to be certain when exactly an event occurred and what exactly took place at the time. After a lapse of time one may honestly think that a certain event took place at a certain time, but that may not be correct and particularly when there is no aid to assist him he can never be certain that it is so. Even so from the cross- examination of P.W. 38 it is evident that he was unaware whether any circulars were issued to all the Printing Presses in the District to send the printed material along with a declaration to the District Election officer. According to him, it was for the District Deputy Election officer to have done the needful. He said that he did not know if he had done so. He could not say who used to receive the pamphlets or other printed material in connection with the elections as also the declarations in the election office. In these circumstances, the possibility of his recollecting the precise time when he saw those pamphlets is liable to error.. One thing is certain from the evidence of Ramtake P.W. 18 that Exts. 42 and 43 were put up before him by his clerk Zanjal 1 R.W. 13. He however, says that this was done 4 or 5 days prior to the election. He, brought these pamphlets to the notice of the Collector and District Magistrate about two or three days prior to the date of election stating that these two pamphlets were of a communal nature. There was no writing, but they were brought to his notice in his personal talk. In. his examination-in-chief and even in cross-examination he admitted that any printer of a pamphlet concerning an election matter must send the pamphlet to the Election Officer accompanied by a declaration of the publisher. He also said that the pamphlets and the declarations received in his office were noted in the inward Register and-he followed the practice of making an endorsement on every paper that he received' as an Election Officer. He further stated that on the declaration that was received in respect of a pamphlet, an endorsement about the receipt was made when it was received and the Inward Register Number in which it was noted was also shown on that declaration. He, however,. admitted that the pamphlet which was received as per that declaration, did not bear any endorsement or the inward register number. He, however, contradicted his statement when he said that they receive any paper brought to them by any body regarding an election matter. They also accepted a pamphlet brought to them even without a declaration of the printer or publisher, but- again reiteratedthat every paper they received in connection with the election matterto be entered' in the Inward Register.Contrary to this categorical statements Exts. 42 and 43 neither bear aninward register number nor are they accompanied by any declaration of the publisher, nor is there an endorsement by any of the officers in the Election Office, nor did Ramteke P.W.18 as Deputy District Election Officer enquire from Zanjal 1 R.W. 13 as to why no endorsements were made on those pamphlets in order to show on which date those pamphlets were received, even though he had noticed, when he saw those pamphlets, that there was no endorsement on them. He also did not ask him to make any endorsement regarding the date on which those pamphlets were received nor did he direct him to make an endorsement on those pamphlets on the date when they were shown to him. He is unable to give reasons why no endorsement was made by either himself about the date on which they were shown to him nor did he make any note regarding the date on which he had shown those pamphlets to the Collector & District Magistrate. The witness Ramteke frankly admitted that he will not be able to tell on which date the pamphlets or the declarations were placed before him, nor will he be able to tell on which dates any poster or pamphlet, or declaration or a letter was placed before him, either before the election or after the election. Having regard to this frank :admission of Ramteke, it is difficult to hold that these pamphlets were placed before him before the date of election. The significant facts to be noticed are that contrary to the established procedure these pamphlets have no inward register number, nor is there any endorsement thereon. In any case, one would have expected these witnesses to have placed their initials on those pamphlets when they were shown to them even if they had not done so before. If the District Deputy Election Officer himself could not do it, he could have directed Zanjal 1 R.W. 13 to do so.

The version of Zanjal R.W. 13 on the other hand shows that papers concerning election matters, if received in the Collector's i.e. District Election Officer's office, are sent to the Election Branch by the Head of the Branch (General) and received by the Receipt Clerk of the election office. He then puts up the papers to N.T. (Election) who in turn puts the papers before the District Election Officer. If the papers are directly brought to the Election Branch Office then they are received by the Deputy District Election Officer and in his absence by the N.T. (Election). No clerk is authorised to receive the papers concerning the elections. He also said that all the election material, i.e. pamphlets, posters, declarations etc. which are received in the election office are entered in an Inward Register as and when they are received. These entries are taken by the Receipt Clerk. According to him the original list of the papers was prepared by Kadhav, N.T. (Election) in the first or second week of April 1972 when an application for certified copies of the posters, return of election expenses etc. was received in the office. Thereupon the Deputy District Election Officer Ramteke had asked Kadhav N.T. to prepare a list of the papers which were in his custody and accordingly a list was prepared which he handed over to Ramteke' A supplementary list of three papers which were marked as S. Nos. 13-A, 42 arid 43 in the file of the District Election Officer was prepared by the witness (Zanjal) sometime in the beginning of November 1972 before Diwali, as an application for certified copy of some documents had been received. At the time the witness handed over the papers to Kadhav N.T. for preparing the first list as asked by the Deputy District Election Officer the two pamphlets marked at Sr. Nos. 42 and 43 were not amongst those papers. He was directed by the Deputy District Election Officer Ramteke to prepare the supplementary list in the beginning of November 1972. According to him he might have come across the pamphlets at Ext. Nos. 42 and 43 in the District Election Office file sometime in the month of May 1972 when the inspection of the record was taken by someone. In cross- examination he admitted that he could not say who had received the documents Exts. 42 and 43. Significantly, there was no cross-examination suggesting that this 'witness had brought to the notice of Ramteke Deputy District Election Officer, Exts. 42 and 43 before the date of polling as asserted by Ramteke, though according to his version. the first time he saw those pamphlets was in May 1972 which was long after the polling.

Evidence has also been adduced to show that the offending pamphlets were distributed at Warthi on February 17, 1972 (See Narayan Fuley P.W. 14, Prandas Wasnik P.W. 19 and Lambe P.W. 23); at Bhandra on February 22, 1972 (See Narayan Yelne P.W. 29 and Tizare P.W. 30); at Bhandara on February 23, 1972 (see Ramteke P.W. 34 and Kesho Hedau P.W. 37); and at Mohadi on February 18, 1972 (see Patre P.W. 13 and Lalit Mishra P.W. 25). The learned Trial Judge has disbelieved these witnesses and has given reasons therefore. But the learned Advocate for the appellants has assailed those reasons and has submitted his detailed comments. In considering the evidence of these witnesses, particularly in an election matter, the interest which these witnesses have in and the support they give to, any particular political party are relevant factors to be taken into consideration for determining their bias for speaking in favour of one party or against the other. Apart from this, there are other factors such as their knowledge of the contents of the pamphlets, whether they preserved those pamphlets, what action they took, whom they had informed if they had considered such pamphlets to be offensive, and whether they are chance witnesses or had an opportunity of knowing about the incident about which they are deposing. There may also be some witnesses who may claim to have supported the successful candidate, but after the election have changed their loyalty and have appeared as witnesses for the petitioners. This is also a circumstance to be taken into consideration. We have gone through each of the reasons given by the learned Judge and the comments submitted by the learned Advocate for the appellants for not accepting those reasons, but we find ourselves unable to reject the appreciation of the learned Judge for not accepting the evidence of these witnesses. We would have examined the reasons in the light of the comments submitted by the learned Advocate in detail, but we have not done so because of our anxiety to keep the length of this judgment within appreciable limits. If we may take one ground which uniformly has been admitted by most of these witnesses, it is that they have neither preserved the pamphlets nor do they even remember the contents of those pamphlets. (see Fuley P.W. 14, Yetne P.W. 29, Tizare P.W. 30-to name a few.) Even Ramteke P.W. 34 District Deputy Election Officer is not able to remember the caption of any of the pamphlets though as we have seen earlier he claimed to remember that those pamphlets were seen by him before the date of the polling. Keshao Hedau P.W. 37 is a member of the Congress Party who worked for respondent No. 2. P.W. 13 likewise is a staunch Congress worker. P.W. 25 does not say that he himself re- ceived or had occasion to see the pamphlets which are said to have been distributed. Though each of these circumstances may be insufficient to throw doubt on their veracity, but junctz juvant.