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PETITIONER: M. NARAYANA RAO

       Vs.

RESPONDENT: G. VENKATA REDDY & OTHERSand vice versa

DATE OF JUDGMENT03/09/1976

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. KHANNA, HANS RAJ SINGH, JASWANT

CITATION:  1977 AIR  208            1977 SCR  (1) 490  1977 SCC  (1) 771  CITATOR INFO :  R          1978 SC 351  (7,8)  RF         1985 SC 236  (63)  C          1991 SC2001  (5,24,25)

ACT:         Election--Representation  of  the  people  Act,   1951--sec.         123(2)--Sec. 100(1 )(b)--Corrupt Practice--Undue  influence-         Conduct of Election Rules 1961 -Rule 39(2) (b)--Ballot paper         containing mark on the reverse of the symbol-Can be rejected         as  invalid--Charge of corrupt practice--If  quasi  criminal         nature--degree  of proof--Interference with appreciation  of         evidence  by  High  Court--Whether election  result  can  be         lightly interfered with.

HEADNOTE:             For  the  election  to the  Andhra  Pradesh  Legislative         Assembly  out of 6 candidates 4 withdrew and Reddy  and  Rao         were the only contestants.  Rao was elected by a margin of a         few hundred votes.  Reddy challenged election of Rao      by         filing  an  election petition in the High Court  on  several         grounds  of corrupt practice, as well as on the ground  that         there were mistakes in counting of the votes.  Reddy in  his         election  petition besides asking for the setting  aside  of         the election of Rao also claimed that he should be  declared         elected  in his place. The High Court ordered a  recount  of         votes.   However,  even  after the recount,  Rao  had  still         majority  of  votes in his favour although  the  margin  was         reduced.             The  Election Petitioner contended that he was the  sit-         ting  member and was very popular and that he lost  election         on account of undue influence, force and violence on a large         scale used by Rao.  It was alleged that about 200 supporters         of  Rao with the active assistance of respondent No. 2,  one         of  the candidates who had withdrawn, threatened,  beat  and         threw stones at the voters and supporters of Reddy; that  as         a  result of the violence the polling had to be stopped  and         the  polling took place later on; that about 300  supporters         of  Rao armed with sticks, iron rods and other weapons  sur-         rounded the hotel where Reddy was staying and forced him  to         go  out  and severely assaulted him; that Reddy  had  to  be         removed  to hospital.  In the election petition  allegations

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       were  made  against Rao almost under  every  sub-section  of         Section 123 of the Act.  But the only corrupt practice found         by the High Court against Rao was the commission of  corrupt         practice  of undue influence within the meaning  of  Section         123(2).   The High Court. therefore, set aside the  election         of Rao.  The High court,  however,  did not grant the decla-         ration in favour of Reddy since according to the High  Court         it  was  not found that but for the corrupt  practice  Reddy         would have secured the majority votes.  Both Rao and  Reddy,         therefore, filed appeals in this Court.         Allowing  the  appeal of Rao and dismissing  the  appeal  of         Reddy.             HELD:   (1  ) That the charge of commission  of  corrupt         practice has to be proved and established beyond doubt  like         a criminal charge or a quasi-criminal charge but not exactly         in  the manner of establishment of the guilt in  a  criminal         prosecution  giving the liberty to the accused to keep  mum.         The  charge has to proved on appraisal of the  evidence  ad-         duced  by both sides especially by the election  petitioner.         [500 F-G]             (2)  That the election held and results declared on  the         choice  of the voters should not be lightly interfered  with         or  set aside by a court of law.  After all, in the  holding         of  a  fresh election are  involved  numerous  botherations,         tremendous  expenses, loss of public time and money and  the         uncertainty  of the public representation from a  particular         constituency.  [500 G-H]         (3) A charge of corrupt practice is easy to level but diffi-         cult  to  prove.  If    it is sought to be  proved  only  or         mainly by oral evidence without there being  contemporaneous         documents  to  support it, court should be very  careful  in         scru         491         tinizing the oral evidence and should not lightly accept  it         unless the evidence is credible,  trustworthy,  natural  and         showing beyond doubt the commission of corrupt practice,  as         alleged.  [501 A-B]             (4) That, this Court ordinarily and generally does  not,         as  it  ought not to, interfere with the  findings  of  fact         recorded  by  the  High Court unless  there  are  compelling         reasons for the same, especially findings recorded on appre-         ciation of oral evidence.  [501 B]             (5) This Court. however, does not approve of the finding         recorded by the High Court on a misreading or wrong appreci-         ation of the oral evidence especially when it is unsupported         or runs counter to the contemporaneous documentary evidence.         [501 B-C]             (6)  It  must always be borne in mind  that  the  conse-         quences  of  setting aside of an election on the  ground  of         corrupt  practice  are very serious for the  candidate  con-         cerned  as well as others involved in it.  A  court,  there-         fore,  should  reach its conclusion with  care  and  caution         taking  into  consideration  the  broad  probabilities,  the         natural  conduct  of the persons involved  and  the  special         situation  in  which a corrupt practice is alleged  to  have         been committed.  [501 C-E]             On  appreciation  of evidence the Court found  that  the         High  Court wrongly came to the conclusion that the  corrupt         practice was committed either by Rao or his agent; that  the         main story set up by Reddy does not find support from any of         the  contemporaneous documents including statement of  Reddy         himself.  The  genesis of the disturbance  was  the  alleged         assault  on the two boys by the Reddy group.   The  disturb-         ances  before the election did take place but it was  not  a         one sided affair.  Both sides were responsible for  entering

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       into  dashes.  The  High Court committed a  grave  error  in         placing  reliance on such intrinsically and inherently  weak         pieces  of  oral  evidence as  against  the  contemporaneous         documents.  [501 H, 505F, 506A, G, 507 C]             No corrupt practice was established to have been commit-         ted by any person with the consent of respondent Rao or  his         election agent.  The High Court, therefore, wrongly declared         election of Rao to be void under Section 100(1) (b). [508 F]             The  ballot  papers on which the marks were put  on  the         reverse side of the symbol and not on the obverse side  were         rightly rejected.  Rule 39(2)(b) of the Conduct of  Election         Rules 1961 requires the elector to make a mark on the ballot         paper  on  or near the symbol of the candidate for  whom  he         intends  to vote.  On a plain reading of the said rule  that         the  voter is to make the mark on the ballot paper  and  not         behind the ballot paper.  [509 B-E]             Swarup Singh v. Election Tribunal AIR 1960 Allahabad  66         and  Dhanpatilal v. Harisingh, AIR 1969 Rajasthan 92,  over-         ruled.             A.  V. Palaniswami v. The Election Court (District  Mun-         sif),  Tripura and others (1973) 2 Madras Law Journal 60 and         Mr. Sykes v. Mr. Mc. Arthur, 4 D’Malley and Hardcastle  110.         approved.

JUDGMENT:             CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 583  and         686 of 1974.             Appeal from the Judgment and Order dated 28-2-74 of  the         Andhra Pradesh High Court in Election Petition No. 1/72 and         Civil Appeal No. 686 of 1974.             From  the  Judgment  and Order dated  28-2-74   of   the         Andhra Pradesh High Court in Election Appeal No. 52/73.             M.C.  Bhandare,  K. Krishna Rao, K.  Rajindra  Choudhary         and Mrs. Veena Devi Khanna for the Appellant in CA 583/74.         492             A.K. Sen, I. Kotireddy and G.N. Rao, for Respondent  No.         1 in C.A. 583/74 and also for the Appellant in C.A. 686/74.         The Judgment of the Court was delivered by             UNTWALIA,  J.  These are two appeals under section  116A         of  the  Representation  of  People  Act,  1951--hereinafter         referred to as  the Act, arising out of an election  dispute         concerning the  election  held on the 5th and 8th of  March,         1972 to the Andhra Pradesh Legislative Assembly from Purchur         Constituency.  Six persons had filed nominations for  stand-         ing  as candidates at the election.  Four of them, who  were         impleaded  as respondents 2 to 5 in the  election  petition,         withdrew in time and did not contest the election.  The only         two  persons left in the field for a straight  contest  were         the  two  appellants in the two appeals namely  M.  Narayana         Rao, appellant in Civil Appeal No. 583 of  1974--hereinafter         referred  to as Rao or respondent no.  1  (for brevity,  the         respondent) according to his position in the election  peti-         tion and G. Venkata Reddy, appellant in Civil Appeal 686  of         1974  hereinafter to be called Reddy or the election   peti-         tioner.   Rao  was declared elected on the 11th March,  1972         by  a  margin  of  a  few hundred votes.   Reddy  challenged         his election by filing an election petition under the Act on         several  grounds  of  corrupt practices said  to  have  been         committed by or on behalf of Rao as also on the ground  that         several  malpractices  and mistakes had taken place  in  the         counting  of  the  votes.  Reddy in  his  election  petition         besides  asking  for  the setting aside of the  election  of         Rao,  also claimed that he  should  be declared  elected  in

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       his  place.   A learned single Judge of the  Andhra  Pradesh         High Court in a very long, elaborate, exhaustive, which   at         times was exhausting, judgment has accepted the case of  the         election  petitioner in regard to one type of corrupt  prac-         tice  having been committed on behalf of the respondent  and         set aside his  election.  Rao has preferred the appeal  from         the  said order.  A recount of the votes polled was  ordered         by  the learned Judge and even after re-examination  of  the         validity  or  invalidity of certain votes, he found  on  re-         count,  that Rao had still majority of votes in  his  favour         although  the margin was further reduced.  In that  view  of         the  matter, Reddy’s prayer for being declared  elected  was         refused by the High Court.  Hence Reddy’s appeal.  Both  the         appeals  arising  out of the same  election   petition  have         been heard together and are being disposed of by this common         judgment.             We  would  like  to state at the  outset  that  even  in         regard  to  the limited questions which fell for our  deter-         mination in these appeals, the judgment of the High Court is         so lengthy and cumbersome, at  times suffering from unneces-         sary repetitions and discussions, that while discussing  the         main issues in these appeals, we have not thought it  neces-         sary  to meet and deal with all the reasonings of  the  High         Court   although in arriving at the decision we  have  taken         them  into  consideration.  If we do so, our  judgment  will         also  be  unnecessarily very long. But we  must  record  our         appreciation for the tremendous labour put in the High Court         by  lawyers on either side and the very  great  pains  which         the  learned  Judge  has taken in preparing  a  careful  and         exhaustive judgment both on facts and in law.         493             Reddy  contested  the  election as a  candidate  of  the         Indian National Congress Party and Rao was  an   Independent         candidate.  Reddy’s election symbol was "Cow and Calf" while         that of Rao was a "Tractor".  The polling in the Constituen-         cy was held on the 5th of March, 1972.  Due to  disturbances         at the 8 polling booths at Chinna Ganjam with which we shall         be concerned in Rao’s appeal, polling had to be postponed to         the  8th of March, 1972 on which date the polling  was  com-         pleted  at Chinna Ganjam.  At the counting of votes done  on         the  11th of March, 1972 the Sub Collector, Ongole, who  was         the  Returning Officer of the constituency, found  that  Rao         had   polled  31,038 votes while the votes polled  by  Reddy         were  only 30,728.  Approximately 1,398 votes were  declared         as  invalid by the Returning Officer. It may just be  stated         here  that  the total  number  of  electorates   in  Purchur         Constituency  was  77,932.  Votes polled were quite  a  good         number amounting to 63,164.             In short the election petitioner’s case was that being a         sitting member of the Assembly from the Purchur Constituency         he was very popular and had great chances of success in  the         election  in question.  The respondent, his  supporters  and         agents  felt that the election petitioner could be  defeated         only  by  use of undue influence, force and  violence  on  a         large  scale and not by a fair election.  With that  end  in         view  it was averred by Reddy in his election petition  that         one  Sri  Mandava Sitaramayya, an influential worker of  his         was assaulted at Purchur on the 2nd of March, 1972 by Yarla-         gadda Subbarao, brother-in-law of the respondent.   Although         the beating of Sitaramayya and the illegal activities of the         respondent were brought to the notice of the Deputy Superin-         tendent of Police and Sub Collector, Ongole at 7.00 P.M.  on         the 4th of March, 1972 when they were camping at Purchur and         they were requested to take adequate precautions for a  fair         and free poll, the Deputy Superintendent of Police failed to

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       do so.  By the 4th  of March, 1972, according to the case of         Reddy,  the  atmosphere  was thick with rumours that he  and         his  men would be beaten and done to death,  his  supporters         and  voters would be prevented from  exercising their  fran-         chise and that in these endearvours of Rao he and his agents         had  the full support and cooperation of the Police  Depart-         ment headed by Shri A. Gopal Reddy, Deputy Superintendent of         Police.   Chinna Ganjam and its surrounding villages,  Reddy         claimed,  lay  in his stronghold area.  Rao and  his  agents         under  the umbrella of protection of the police  started  an         orgy  of  violence  particularly in Chinna  Ganjam  and  its         surrounding  villages.   On the 4th of March, 1972  the  re-         spondent collected his agents and supporters at his election         office  at Chinna Ganjam and instructed them to go ahead  by         using  undue  influence, violence and force to  prevent  the         voters  from casting their votes and not to  allow  peaceful         conduct of the poll at Chinna Ganjam.              The case of Reddy, the election petitioner, further was         that on the morning of the 5th of March, 1972 Rao’s support-         ers,  about  200  in number, gathered from various  villages         with the active  assistance  of J.S. Krishnamurthy (respond-         ent no. 2 in the election petition-one of the candidates who         had  withdrawn) and Muddana  Rangarao  of  Alankar  Theatre,         Inkollu, started threatening, beating and stone pelting         494         of the voters and supporters of Reddy in Chinna Ganjam  near         the  polling station and elsewhere.  This mob, amongst  oth-         ers, included the 18 persons mentioned in paragraph 8(f)  of         the election petition. As a result of the violent activities         of  the supporters of the respondent and the  panic  created         thereby,  the polling at Chinna Ganjam which had started  at         7.30  A.M. on the 5th of March, 1972, was   stopped  between         9.00 A.M. and 11.30  A.M.  When it was  resumed again  11.30         A.M.  the  electors were all scared and there was  poor  re-         sponse  from  them.  Rao’s agents again started an  orgy  of         violence at about mid-day.  Voters who were waiting  at  the         polling   booths   were threatened and  dispersed  and  when         Reddy’s supporters including Marri Subba Reddy of  Munnamva-         ripalem were attempting to  infuse confidence in the voters,         the mob consisting of persons wearing badges with  "Tractor"         symbol,  rushed upon the innocent voters and forced them  to         flee  for  their lives.  This was all done with  the  active         support  of the police.  During the afternoon  disturbances,         Reddy’s case has been, the police most unjustly opened  fire         upon  the  dispersing and fleeing persons  killing  outright         Marri  Subba Reddy and  seriously  injuring,  Komatla  Rama-         chandra  Reddy,  a  resident of Pedda  Ganjam,  an  innocent         passerby.             Reddy’s  case further runs thus.  He went to Chinna  Gan         jam at about 2.00 p.m. on the 5th of March, 1972 and when he         was taking coffee in a hotel, the hooligans numbering in all         about  300 engaged by Rao including the 18 persons named  in         paragraph 8(f)  of  the election petition armed with sticks,         iron rodes  and  other  weapons surrounded the hotel, forced         Reddy to come out and severely assaulted him.  Reddy had  to         be removed first to Chirala Government Hospital gad  finally         to  Guntur Hospital where he remained under treatment for  a         few  days.  As a result of the violent disturbances  created         by  Rao’s agents and supporters at Chinna Ganjam the  voting         was postponed to March 8, 1972 and completed on that date.             The  election petitioner had also taken a stand  in  his         election  petition  that the respondent and  his  supporters         went  round  canvassing from 3.00 p.m. on the 5th of  March,         1972 that Reddy was dead or was sure to die and there was no         use  casting votes in his favour. The panic created  by  the

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       respondent  and his men prevented several voters from  exer-         cising  their franchise or coerced them to cast their  votes         in favour of the respondent.  Certain other allegations were         made  in the election petition alleging that the  respondent         had  utilised the services of a Government servant, and  had         indulged in other various types of malpractices.  It is  not         necessary to refer to them in any detail as the Trial  Judge         has not accepted the election petitioner’s case in regard to         the said allegedly corrupt practices.  The findings of   the         High Court were not challenged by Reddy before us.  We  may,         however,  state  in passing that reckless  allegations  were         made by Reddy against Rao alleging the commission of corrupt         practices within the meaning of almost every sub-section  of         section 123 of the Act.  But the only one found by the  High         Court  against Rao is the commission of corrupt practice  of         undue  influence  within the meaning of sub-section  (2)  of         section 123.             Reddy  in  his election petition alleged  Commission  of         several  malpractices,  mistakes and irregularities  in  the         counting  of  the  votes.         495         Several  of his valid votes were said to have been   wrongly         rejected, several of the invalid votes were wrongly  counted         for Rao and so on and so forth.  He asserted that the Retur-         ing  Officer had wrongly turned down his request for  a  re-         count  and  if recount is ordered by the Court it  would  be         found  that he had polled the majority of votes.  Upon  such         allegations,  the details of some of which but not  of  all,         were given in the election petition, Reddy claimed a  decla-         ration for himself of having been elected to the Legislative         Assembly from Purchur.             On  the pleadings of the parties  the High Court  framed         several  issues  and the relevant ones for the  disposal  of         these appeals are  the following:                        "1 (a) Whether the allegations made in  para-                  graph  8(a) to (k) of the petition constitute  cor-                  rupt  practice of and ’Undue  Influence’  envisaged                  under  Sec.  123(2) of the  Representation  of  the                  People Act, and the I st respondent himself or  his                  agent or any other person with his consent or  that                  of his election agent committed the same ?                        (b) If the allegations made in paragraph 8(a)                  to (k) of the petition be true, is the election  of                  the  I st respondent liable to be set aside on  the                  ground  of commission of corrupt  practice,  namely                  exercise of ’Undue  Influence’  envisaged under  S.                  123(2) of the Representation of the People Act?                        (c)  Whether  any such  corrupt  practice  if                  proved  to have been committed  by an Agent of  the                  1st respondent, other than his Election Agent,  has                  materially  affected the result of the Election  in                  so far as it concerns the 1st respondent?                        6(a) Whether the allegation that the  Return-                  ing  Officer and his staff committed  several  mis-                  takes and irregularities in the matter of counting,                  bundling,  rejection  and  reception  of  votes  as                  alleged in paragraph 9(a) to (k) of the petition is                  true ?                        (b) Whether 472 votes said to have been  cast                  in  favour of the petitioner were rejected  on  the                  ground  that  the mark was put on the back  on  the                  ballot papers and whether such rejection is improp-                  er and void ?                   (c) Whether the pleading in paragraph 9(b) of  the                  petition  is liable to be struck down for not  fur-

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                nishing  the particulars such as serial numbers  of                  ballot papers etc., ?                        (d)  Whether  the allegations  regarding  the                  irregularities  and violations in the rejection  or                  reception   or counting of votes made in  paragraph                  9(c)  to  (k) of  the petition are  vague  and  are                  liable  to  be  struck down for  want  of  material                  particulars ?                  496                        (e)  Whether the improper reception  of  void                  votes  or  improper rejection of  valid  votes  and                  mistakes if any in counting of votes has materially                  affected the result of the election ?                        7  (a)  Whether the order  of  the  Returning                  Officer rejecting the request of the petitioner for                  recount of votes is erroneous and contrary to law ?                  If so what is its effect ?                        (b) Whether in the circumstances mentioned in                  paragraphs  9(a) to (k) of the petition  the  peti-                  tioner is entitled to scrutiny of ballot papers and                  recount of  votes by this Court ?                        8. Whether the election of the 1st respondent                  is  liable  to be set aside on any of  the  grounds                  alleged in the petition ?                        9.  Whether the petitioner is entitled to  be                  declared  duly  elected candidate  to  the  Purchur                  Constituency ?"                  The High Court states in its judgment:                        "Issues  l(a),  (b)  and (c)  relate  to  the                  allegations  in  paragraphs  8(a)to  (k)   of   the                  election  petition.  They cover several allegations                  of corrupt  practice of  undue influence  envisaged                  by section 123 (2) of the Act."         For the sake of convenience the learned Judge split up issue         1  (a) incidence-wise with reference to each of the  alleged         ones.   It  would  be useful to quote the split   up  issues         from  the  judgment of the  High Court.                        1  (a)(i)Whether  the  allegation   made   in                  paragraph  8(c) of the election petition viz.,  the                  attack   on  Mandava Seetaramayya,  an  influential                  worker   and  supporter of the petitioner  on  2-3-                  1972 by Yarlagadda Subbarao of Karamchadu is true ?                        1  (a) (ii) Whether the allegations  made  in                  paragraph 8(f) of the election petition that on the                  night of 4-3-1972 the 1 st respondent collected his                  agents  and  supporters  in Chinna  Ganjam  at  his                  election  office and instructed them to  use  undue                  influence,  violence  and force in  preventing  the                  voters from exercising their franchise and peaceful                  conduct of the poll is true ?                  1(a)(iii)  whether  the  ’allegation  contained  in                  paragraph  8(g) of the election petition  that  the                  1st  respondent’s  agents, workers  and  supporters                  including  the 18 persons named in the  said  para-                  graph  started  threatening,  beating  and  pelting                  stones on the voters and  supporters of the   peti-                  tioner  at Chinna Ganjam Polling Stations and as  a                  consequence thereof the polling was stopped and the                  voters   were  prevented from casting  their  votes                  between 9.00 A.M. and 11.30 A.M.                        1 (a)(iv) Whether the polling was resumed  at                  11.30  A. M. and the 1st respondent’s agents  again                  started  an. orgy  of violence by the 1st  respond-                  ent’s  agents,  workers and   supporters  including                  those named in  paragraph  8(f)  of the

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                497                  election   petition  and  several  others   wearing                  "Tractor  Badges"  and disturbed  the  polling  and                  forced  the  voters to flee  away  without  casting                  their votes and the  police  most  unjustly  opened                  fire  upon the fleeing persons as alleged in  para-                  graph 8(h) of the election petition ?                        1 (a)(v) Whether the petitioner was  attacked                  by the 300 persons as alleged in paragraph  8(i) of                  the election petition ?                        1(a)(vi)  Whether  as alleged  in   paragraph                  8(i)  of  the petition a little later some  of  the                  petitioner’s  voters  were threatened and beaten by                  the  1st  respondent’s  supporters  including   the                  persons  mentioned   in   paragraph   8(f)  of  the                  petition ?                        1(a)  (vii) Whether the allegation  in  para-                  graph 8(j) that the I st respondent and his  agents                  workers and  supporters went round canvassing  from                  about  3.00 P.M. on 5-3-1972, that  the  petitioner                  was  dead or was sure to die and as such there  was                  no use of casting votes in his favour, is true ?                        1(a)(viii) Whether as a result of the   above                  incident several voters failed to cast their  votes                  even at the repoll held on 8-3-1972 ?"             Although  the  High   Court has  found  that  Yarlagadda         Subbarao and four others beat Mandava Seetaramayya, it could         not be  established that they were the agents of Rao or  had         attacked him with his consent.  Issue no. 1(a)(i) was decid-         ed  against   the election petitioner.  The finding  of  the         High Court on Issue no. 1 (a)(ii) is  as follows:                        "From the above discussion, it is established                  that the 1st respondent came to his election office                  at Chinna Ganjam on the night of 4-3-1972  accompa-                  nied  by  R.W. 13, Ravipudi Venkatadri,  Respondent                  No. 2, and one Muddana Rangarao. It is also  estab-                  lished that at his election office, Koyi Mohanarao,                  Karanam   Balaram,  Karanam   Nayudamma,    Karanam                  Ankamma,  Muddana Madana Mohana Rao,  Parvathareddy                  Narasimharao,  Parvathareddy Satyanarayana,  Parva-                  thareddy Sriramayya, Ghanta Subbayya,  Thumalapenta                  Venkateswandu,  Thummalapenta Venkateswamy,  Ghunta                  Venkateswarulu, Narahari Venkatasubbarao,  Chunduri                  Radhakrishna  Murty,  B.P.R.  Vittal  were  present                  alongwith  some other persons whose names  are  not                  specially mentioned by any of the witnesses.                        It  is  also proved as alleged  in  paragraph                  8(f) of the election petition that in the  presence                  of the abovementioned persons, the I st  respondent                  instructed  and  advised those persons  and  others                  present  there "to go ahead by using  undue  influ-                  ence, violence and force in preventing  the  voters                  from  exercising their right of franchise  and  the                  peaceful  conduct of the poll as otherwise. he  had                  little chance of success."         498              Issue  no.  1  (a)(iii) was also  decided  against  the         respondent and it was held:                         "Though the petitioner’s deposition in  this                  behalf  is based only on the information  furnished                  by the  other witnesses whose evidence has  already                  been   discussed,  the   other  evidence  discussed                  above  clearly  establishes that Koyi  Mohana  Rao,                  Karnam   Nayudarnma,  Karanam   Balaram,    Karanam                  Ankamm,  R.W.  13,  Ravipudi   Venkatadri,   B.P.R.

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                Vittal, Chunduri Radhakrishna Murty, Muddana Madann                  Mohana Rao, Parvathareddy Narasimha Rao, Munsif  of                  Sobhirala  and  his  sons,  Satyam,  Sriramnlu  his                  grandson Ghanta Subbayya and Thummalapenta   Venka-                  taswamy,  Narahari  Venkata Subbarao and  Thummala-                  penta   Venkateswarlu   and  some other  people  of                  Chirala  and  other  villages over  100  in  number                  pelted  stones  and disturbed the  voters   in  the                  queues at the polling booths of Chinna Ganjam as  a                  result  of  which polling was suspended  from  9.30                  A.M. to 11.30 A.M.         While deciding this issue presence of a few persons names in         paragraph  8 (f) of the election petition was not  found  as         persons  taking part in the disturbance.                    On  Issue no. 1 (a) (iv) the finding of the  High                  Court is:                       "From  the  evidence discussed above,  I  find                  that  the polling which was resumed at about  11.30                  A.M.,  continued   peacefully till about 2.00 P.M.,                  thereafter the  polling was  was   disturbed by the                  persons  who  are  found   under   Issue   no.    1                  (a)(iii)  to  have  disturbed the  polling  in  the                  morning by violence alongwith others which  consti-                  tuted  a  mob of nearly   300  persons  armed  with                  sticks and stones, they pelted stones at the queues                  of  the  voters standing near  the  polling  booths                  causing  injuries to one Kanna Nagayya   and   thus                  scared    them away.  The Police apprehending  fur-                  ther danger opened   fire resulting in the death of                  Marri Subba Reddy and injuries to Komatla Ramachan-                  dra  Reddy (P.W. 33).  The persons    among  others                  whose  identity  is  clearly  established   by  the                  evidence  discussed above in the commission of  the                  act of undue influence are (1) Koyi Mohana Rao, (2)                  Karanam  Nayadamma,   (3)  Karanam   Balaram,   (4)                  Karanam    Ankamma, (5) R.W. 13, Ravipudi  Venkata-                  dri,  (6) B.P.R. VittaI, (7) Chunduri  Radhakrishna                  Murty,  (8)  Muddana Madhans Mohana Rao, (9) Parva-                  thareddy  Narasimha Rao,  Munsif of  Sobhirala  and                  his  sons, (10) Satyam, (11)  Sriramulu,  (22)  his                  grandson   Ghanta  Subbayya,  (13)    Thummalapenta                  Venkwataswamy,  (14) Narahari Venkata  Subba    Rao                  and (15) Thummalapenta Venkateswarlu."           Issue  no. 1 (a)(v) was also decided  against Rao the  re-         spondent and it was found:                       "From  the  evidence discussed  above,  in  my                  view,  it  is   established beyond  all  reasonable                  doubt that the petitioner                  499                  was  attacked after he ran out of P.W.  12’s  hotel                  and  covered  a distance of about 10  to  12  yards                  towards the Railway level crossing; he was attacked                  by  an armed mob of over 100 persons some  of  whom                  were  wearing   "Tractor  badges"   and  among  the                  assailants  of  the  petitioner   were   (1)   Koyi                  Mohana Rao of Nagendla, Mangali  Krishna of  Chira-                  la,  Karnam  Balaram of Thimma   Samudram,   Parva-                  thareddy Narasimha Rao, Village Munsif of  Sobhira-                  la,    Thummalapenta  Venkataswamy  of   Sobhirala,                  Parvathareddy  Sriramayya  and  parvathareddy  Sat-                  yanarayana the sons of Parvathareddy Narasimha Rao,                  the Village Munsif of Sobhirala."         Case  against  two of the alleged assailants  namely  Karnam         Nayudamma and Pallapolu Venkateswarlu were not accepted.             In regard to Issue no. 1 (a)(vi) the learned Judge  held

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       against  the election petitioner stating "In this  state  of         evidence, I am reluctant to act on the solitary statement of         P.W. 41 and  bold  this  allegation proved."             Issue  no.  1  (a) (vii) was also  decided  against  the         election petitioner and the learned Judge stated:                        "I,  therefore, hold that the petitioner  has                  failed  to  prove that the 1st  respondent  or  his                  supporters  spread the rumour of the attack on  and                  the  death  of the petitioner   and   that  thereby                  number  of Congress voters left the  queues at  the                  polling booths without casting their votes."             Under  Issue no. 1 (a)(viii) the findings  recorded   by         the  High Court against the election petitioner are:                        In view of the above discussion, it cannot be                  held  that  several hundred voters failed  to  cast                  their  votes even at the re-poll on 8-3-72  on  ac-                  count of the fear engendered by the violence perpe-                  trated.  by  the 1st respondent or  his  agents  or                  supporters on 5-3-72."          Having  thus recorded the findings under the  various  sub-         issues  under Issue no. 1 (a) the Court proceeded to  advert         to  the discussions of  (b) and (c) and came to the  conclu-         sion:                     "In  view of the above discussion, I  hold  that                  the acts of                     ’corrupt  practice’ were committed by the   per-                  sons   above    named with the consent of  the  1st                  respondent  and therefore the election of  the  1st                  respondent  is  liable to  be     declared     void                  under s. 100 (1)(b) of the Act.  His    election is                  also    liable to be declared  void  because    his                  election   agent,    R.W.  13 is  found  guilty  of                  corrupt  practice of  undue  influence.  The  elec-                  tion  of  the  1st  respondent  is  liable  to   be                  declared  void without the further proof  that  the                  result  of  the     election  has  been  materially                  affected.  Issue 1 (b) is answered  accordingly."          In  regard  to Issue no. 1 (c) the High Court came  to  the         conclusion that though some of the persons who committed the         corrupt practice         500         of undue influence on 5-3-1972 were agents of  the  respond-         ent,  if R.W. 13, Rao’s election agent, would not have  been         among them and if Rao’s consent to the acts of those  others         were  not established, the election of the respondent  could         not have been set aside because there was no proof that  the         result  of  the  election had been  materially  affected  on         account of the commission of those  corrupt  practices.  But         since the Court found that undue influence on the 5th  March         had been committed not only with the consent of the respond-         ent but also by his election agent himself-he being  present         at  Chinna Ganjam on that date, the election of Rao was  frt         to  be declared void without any proof of the result  having         been  materially affected.  The  High Court, if  correct  on         facts, was undoubtedly right in law.             The High Court had decided issue No. 7 in favour of  the         election  petitioner and ordered recount.  After a  detailed         discussion  of  the various allegations made  in  connection         with the malpractices and mistakes committed in the counting         of the votes under the various subissues of issue no. 6, the         final  conclusion of the High Court was that out  of  31,038         votes  counted for Rao by the Returning Officer, two had  to         be  deducted as on recount the number was found less and  on         various  grounds  mentioned in the judgment, 129  more  were         directed  to be deducted from Rao’s count thus  leaving  the

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       net result of 30,907 valid votes in favour of Rao as per the         decision  of  the High Court. For the reasons given  in  its         judgment  the  High Court held that 27 votes ought  to  have         been counted for Reddy which were wrongly not counted.  Thus         adding  those 27 to his original figure of 30,728 the  total         valid  votes,  according to the High Court polled  by  Reddy         were 30,755---sti11 short by 100 and odd from those of Rao.             We first take up Civil Appeal 583 of 1974 filed by  Rao.         The principles of law governing election disputes and  espe-         cially  in regard to the charge of a commission  of  corrupt         practice  are well established by several decisions of  this         Court--many  of which have been noticed in the  judgment  of         the High Court also.  We do not propose to refer to any.  We         shall,  however,  keep the following principles in  view  in         relation to this appeal:                     (1  ) That the charge of commission  of  corrupt                  practice  has to be proved and  established  beyond                  doubt  like a criminal charge or  a  quasi-criminal                  charge but not exactly in the manner of  establish-                  ment of the guilt in a criminal prosecution  giving                  the liberty to the accused to keep mum.  The charge                  has to be proved on appraisal  of the evidence  ad-                  duced  by  both  sides  especially  by  the   elec-                  tion petitioner.                     (2) That the election held and results  declared                  on  the choice of the voters should not be  lightly                  interfered  with  or set aside by a court  of  law.                  After  all, in the holding of a fresh election  are                  involved  numerous  botherations,  tremendous   ex-                  penses,  loss  of  public time and  money  and  the                  uncertainty  of  the public representation  from  a                  particular Constituency.                  501                     (3)  A  charge of corrupt practice  is  easy  to                  level  but difficult to prove.  If it is sought  to                  be  proved only or mainly by oral evidence  without                  there  being contemporaneous documents  to  support                  it,  court should be very careful  in  scrutinizing                  the oral evidence and should not lightly accept  it                  unless  the  evidence  is  credible,   trustworthy,                  natural and showing beyond doubt the commission  of                  corrupt practice, as alleged.                     (4)  That, this Court ordinarily  and  generally                  does  not, as it ought not to, interfere  with  the                  findings of fact recorded by the High Court  unless                  there  are compelling reasons for the  same,  espe-                  cially  findings recorded on appreciation  of  oral                  evidence.                     (5) This Court, however, does not approve of the                  finding recorded by the High Court on a  misreading                  or  wrong appreciation of the oral  evidence  espe-                  cially  when it is unsupported or runs counter   to                  the  contemporaneous documentary evidence.                     (6)  It  must always be borne in mind  that  the                  consequences of setting aside of an election on the                  ground of corrupt practice are very serious for the                  candidate  concerned as well as others involved  in                  it. A court, therefore, should reach its conclusion                  with care and caution taking into consideration the                  broad  probabilities,  the natural conduct  of  the                  persons  involved  and the  special   situation  in                  which  a  corrupt practice is alleged to have  been                  committed.             In the background of the above principles we proceed  to         examine whether the finding of the High Court against appel-

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       lant  Rao  on  some parts of issue no. 1  resulting  in  the         declaration of his election as void is sustainable.  Broadly         speaking,  the  findings  against him are (1)  that  he  had         created a tense situation to bring about the defeat of Reddy         before  the holding of the poll on the 5th March, 1972;  (2)         that  he had come to Chinna Ganjam in the night of  the  4th         March  at  about 9.00 p.m. in the company  of  his  election         agent  Venkatadri and had instructed his workers  to  create         violence,  use  force and not allow a free  poll  at  chinna         Ganjam; (3) that Rao’s election agent Venkatadri was present         in Chinna Ganjam on the 5th March and had taken active  part         in  the  disturbances created on the date of the  poll;  (4)         that Rao’s election agents, workers and supporters including         more  than 100 from outside Chinna Ganjam  were  responsible         for  creating  violent disturbances both in the  morning  as         also  in the afternoon on the date of poll i.e.  5th  March,         1972;  (5) that as a result of the police firing one  person         on  the side of Reddy was killed and another  was  seriously         injured.  But it may pointedly be stated here that there  is         no finding recorded by the learned Judge that the police was         in  league   with  Rao  and had deliberately  fired  on  the         fleeing  party  of  Reddy; (6) Reddy was  assaulted  by  the         workers  and supporters of Rao at about 2.00 p.m.  near  the         Railway crossing in the hotel of P.W. 12 Satyanarayana;  (7)         the  respondent had not been able to establish that  he  had         not come         502             Chinna Ganjam in the night of 4th of March and had  gone         somewhere else or that his case of the genesis of the occur-         rence  which  led to the disturbances on the 5th  March  was         true.             Apart  from  some  witnesses being  different,  here  or         there,  most  of the witnesses to prove the  case  of  Reddy         apropos the findings above, are common and they are P.Ws 12,         29, 30, 31, 32, 42 besides P.W. 27 Reddy himself.             Shorn  of details we shall examine the main  ingredients         of  the case to see how far they have been proved  to  bring         home  the  charge of commission of corrupt practice  on  the         part of Rao.  As usual there must have been some tension  in         the Constituency because it was a straight contest and  neck         to  neck fight, as the results show, between Reddy and  Rao.         Chinna  Ganjam was not the only place where Reddy  hoped  to         get an absolute majority of votes.  The  results   indicate,         although  there is no separate counting of the votes  polled         at each booth these days, that in some parts of the Constit-         uency  Reddy must have polled majority of the votes  and  in         some  parts Rao must have done 80. How is it then  that  Rao         took  into his head to create disturbances at Chinna  Ganjam         only  ?  Sitaramayya, as the finding of the High  Court  is,         was assaulted by some person on the 2nd of March,  That must         have  put  Reddy  on his guard to meet  any  eventuality  of         force.   After all he was a sitting member belonging to  the         ruling party who, we are told, was in power in the State  of         Andhra Pradesh at the time of the election in question.   It         is  difficult to accept or imagine that any  police  officer         especially  a person of the rank of a Deputy  Superintendent         of  Police or the police in general would have gone  against         Reddy  and favoured and sided with Rao.  On the face of  it,         it  was almost an absurd story and the High Court could  not         persuade itself to accept it.   On 2-3-1972 Reddy had  asked         for  police  bundobust at several places  (vide  Ext.  A-97,         letter dated 2-3-1972) but had not included Chinna Ganjam in         the  list of those places. In the evening of the 4th  March,         1972,  as the evidence adduced on behalf of Reddy shows,  he         was  present in the travellers bungalow at  Purchur  wherein

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       were also staying the Returning Officer, the Deputy Superin-         tendent of Police and others.  There is no evidence to show,         that  on receipt of the information from P.W. 31 as to  what         had  happened in the election office of Rao in the night  of         the 4th March, Reddy contacted the Returning Officer or  the         Deputy Superintendent of Police and informed them about  the         alleged design of Rao and the instructions issued by him  in         that  regard.   It  is no doubt true that  there  were  some         persons working for Rao at Chinna Ganjam who did not  belong         to that village but were outsiders.  That by itself does not         justify  the inference that Rao had collected a mob of  out-         siders  to create violence.  Rao was ill-advised to deny  in         his written statement that the 18 persons named in paragraph         8(f)  of the election petition were his workers or  support-         ers.  But they were so working from before at Chinna  Ganjam         as admitted by P.Ws 12, 29, 31 and 32.              One thing is clear from the evidence in this case  that         inhabitants     Sobhirals, a hamlet of Channa Ganjam,  which         is  mostly  inhabited  by Telgas,  had  enmity  with  Reddy.         Chinna Ganjam  lay  within  the         503         Panchayat  Samithi  of Jetapalom of  which  Ronda  Ramaswami         Reddy  was the President.  He was an influential man on  the         side  of  Reddy. He had created  several  enemies  including         Balaram.  Sobhirala people were inimically disposed  towards         him  as  he  had not allowed them to have  a  separate  Gram         Panchayat.   In this background, we proceed to  examine  the         documentary  evidence first to find out whether the  allega-         tions made by Reddy against Rao as to the alleged happenings         on  the  4th and 5th of March, ’72 are correct or  not.   If         correct, they were very important events and they must  have         found place in one document or the other.  But conspicuously         they are absent.           In  this  connection we would first refer  to  Ext.  A-271         --the  Returning  Officer’s Report dated 5-3-1972.   In  the         report  it  is  mentioned that Chinna Ganjam  village  is  a         troublesome village and not that Rao had made it troublesome         just  before the day of poll.  Additional  police  bundobust         was asked for in this village.   It further mentions that at         about  10.00  A.M. there were clashes  outside  the  polling         station when agents of both the candidates were present  and         on account of the disturbances, voters were not turning  up.         After   the  voting  was resumed, for sometime, it  went  on         peacefully, but at 3.45 P.M.  the Returning Officer received         a phone message from the Election Deputy Tehsildar,  Chirala         from  Chinna  Ganjam that polling was adjourned by  all  the         Presiding  Officers at 2.45 P.M. "consequent on the  opening         of  fire  by  the police on an unruly mob  gathered  at  the         Polling  Stations  which  has resulted in  injuries  to  two         persons  of  whom one was reported to  have  been  seriously         injured".  This report further mentions that the election to         Purchur  Assembly was a straight contest between  Reddy  and         Rao  and on a complaint made by two boys of Rao’s  group  at         about  10.00 A.M. that Sri Ramaswami Reddy, President,  Pan-         chayat  Samithi,  Vetapalem and a few of his  followers  had         assaulted  them, "both sides gathered in large  numbers  and         prepared  for a clash." Relating to the  afternoon  incident         the  report states:  "The people belonging to both the  par-         ties  are said to have begun to reassemble near the  Polling         Stations with sticks and stones.  They exchanged blows  with         sticks and hurled  stones at each other."  Then  the  report         proceeds--"Apprehending  danger to the Polling Material  and         polling  personnel  the Presiding Officers are  reported  to         have closed the doors  of the polling Stations".  The report         further  states "Apprehending danger to his life as also  to

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       the Polling parties, and danger to the polling material, the         Inspector opened fire on the mob".         It is to be emphasised that if the story set up by Reddy  as         to the happening in the election office of Rao in the  night         of  the 4th March had any semblance of truth, the  Returning         Officer must have learnt if from Reddy either the same night         at  travellers’  bungalow  at Purchur or on  the  5th  March         before he sent his  report to  the Election Commission.   It         was  neither alleged nor found  that  the Returning  Officer         had  any  animus against Reddy or  was  favourably  disposed         towards  Rao.   The  version given in the  report  speaks  a         volume.             We would now refer to Ext. A-lO6--the First  Information         Report  drawn on the statement of the Inspector  of  Police,         Chirala,  camping at Chinna Ganjam, in connection  with  the         firing case. This was drawn         16 --1104SC1/76         504          up  at  5.15  P.M. on the 5th of March,  1972.   Before  we         advert  to  some portions of this First Information  Report,         an  admitted  position    of the topography  may  be  stated         which  emerged  from the evidence.   There  were  8  polling         booths  in Chinna Ganjam situated in two school   buildings.         On  the  Western  side of the building is  a  road  and  the         Railway line.  On the Northern side of the Railway line is a         railway crossing west of which is village Sobhirala and near         the  Railway    crossing is the hotel of P.W.  12.   Workers         and  supporters of Reddy    admittedly were on  the  eastern         side at or near about the time of    disturbances and  those         of Rao were on the western side--mostly on    the road.   In         this  background,  let us see what   the  Inspector   states         in  Ext. A-106. He says that on receipt of  the  information         about the    disturbances at Chinna Ganjam D.S.P. Ongole and         he started from    Purchur and picked up a striking force on         the   way.  When  they  reached China Ganjam they  "found  a         large gathering on the road    and also on the eastern  side         of the High Court beyond the High    School premises."   One         Balaram  of  Thimmasamudram was  leading     the  gathering,         which  was  on the west of the High School  compound.     On         being  enquired by the Inspector he said that men  of  Reddy         had    assaulted their people.   This was in conection  with         the  assault    on   Maddana Madana Mohan  Rao  and  Maddana         Ramasinga  Rao--the two   boys on the side of  Rao:Statement         of Ramasinga Rao recorded by    the Inspector is Ext.  B-27.         entry  on  the  basis of this statement   in     the  police         papers is B-28. The F.I.R. then states: "At about 2.45  p.m.         the mob began gathering in large numbers on both the   sides         and  hurling stones at each other.  Ramaswamy Reddy was   in         the     mob,  which was hurling stones   ........   The  mob         belonging  to  both  the candidates viz,  Sri  Gade  Venkata         Reddy and Maddukun Narayana was determined in their  violent         attitude  and advanced towards the polling station to  break         open  the  same  to enter into it to  commit  all     unruly         acts."   This  report states that in all three  rounds  were         fired. In the first Information Report as drawn   originally         4  persons    are    named as accused, 3  belonging  to  the         party of Rao and Ramaswamy  Reddy--a staunch and influential         helper  of Reddy.   The case diary  Ext. A-107 of  the  same         date  shows the total number of accused   as  42,  including         the   four   mentioned   earlier.    Mr.   M.C.    Bhandare,         counsel  for Rao and Mr. A.K.  Sen, counsel for  Reddy  drew         our attention to this list of 42 persons which almost evenly         included as members of the mob persons of both sides.              It is remarkable that though Ronda Ramaswami  President         of  the Panchayat Samithi, Vetapalem is shown as one of  the

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       leading  member in the firing case, no where is to be  found         in any paper  the  name of Venkatadri  the election agent of         Rao.   No paper mentions even his presence at Chinna  Ganjam         on  the  5th  of  March.  Now  comes   the  most   important         document__statement of Reddy himself recorded  at 5.55  p.m.         on  5.3.1972  by a Second Class  Judicial  Magistrate  which         could  be treated as a dying declaration, if  unfortunately,         Reddy would not have survived, but the injuries inflicted on         him were  not  so severe as to result in his death.  On  the         basis  of this statement, later, a formal First  Information         Report was drawn up.  This is         505         Ext.  A-100.  In answer to the Magistrate’s question as   to         how   did Reddy receive injuries he narrated the story  that         when  he came to Chinna Ganjam and Ongole road  junction  he         heard  that  some  200 persons were brought  for  hire  from         Chirala, Thimmasamudram and other villages to disturb  poll-         ing as he commanded 85% of electorate there. The persons who         are  said to have Collected the mob are Mohan  Rao,  Mangali         Krishna Balaram, Krishna Murthy Babu of Chirala, Raghavaiah,         Radha  Krishnamurthy  of  Thimmasamudram,  Rangarao,  Cinema         hall  proprietor of Inkollu and  Nayudamma,   President   of         Chintagumpalli  village.  Neither Rao is mentioned nor  Ven-         katadri’s name is mentioned as the persons who had collected         the  mob there. If there was any semblance of truth  in  the         Reddy’s version of what happened on the night of the 4th  in         the  election office of Rao, Reddy could not have missed  to         refer to that incident.  If Venkatadri was present at Chinna         Ganjam  on the 4th or the  5th March,  his name  would  have         found  first  in  the statement of Reddy.   We  deplore  and         deprecate the assault on  Reddy--a fact which has been found         to  be true by the High Court.  We were informed and  copies         of  the judgments were tried to be filed before  us  showing         that all the cases have ended in acquittal and no person has         been convicted of the alleged offences.  But that apart,  we         reiterate,  even  at the risk of repetition, that  the  main         story  set up by Reddy as to what happened on the 4th  night         as  also  on the morning of the 5th and afternoon  does  not         find  support from any of the contemporaneous  documents-not         even from the statement of Reddy himself.  The statement  of         Ramasinga  Rao  was  entered in the  Station  House  General         Diary, Vetapalem and it is  Ext. A-128.  The  entry is  Ext.         B-27.  The Entry of report is Ext. B-28.             Although it is unfortunate that on behalf of Rao neither         of  the  two boys said to have been assaulted nor  any  body         else  was examined to prove the incident of assault on  them         which  led to the further disturbances on the 5th of  March,         1972  at  Chinna Ganjam, the  contemporaneous  documents  do         indicate that the genesis of the disturbance was the alleged         assault  on the two boys.  It does not  appear to be a  case         where  a false story of assault on two boys was made a  pre-         tence  to  start  assault at  Reddy’s  workers  and  voters.         Hardly  any  voter was injured or examined to state  that  a         planned  attempt  was made on behalf of Rao to  prevent  the         voters from casting their votes in favour of Reddy.             Let  us now see what kind of oral evidence is  there  to         prove the incident.  As to what happened in the Rao’s  elec-         tion office at Chinna Ganjam in the night of 4th March, P.W.         32  Raju  Bali Reddy is the primary witness of  the  alleged         episode.  He had a bunk near the election offices of the two         candidates.  We regret to find that Rao had in the beginning         denied  that he had any election  office  at  Chinna  Ganjam         but he was constrained to admit that such an office had been         opened  by  his supporters.  We also do not  appreciate  the         attempt on the part of Rao in challenging the claim of  P.W.

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       32  of  his running a beedi bunk at Chinna Ganjam  near  the         houses where the election offices of the two candidates  had         been set up.   Nevertheless         506         the  story told by P.W. 32 is too  imaginative  and   unreal         to   inspire any confidence..  The High Court, in our  opin-         ion, was wholly wrong in accepting his evidence to be  true.         He (P.W. 32) says that he saw the respondent coming in a car         on the 4th of March, 1972 to Chinna Ganjam between 8.30  and         9.00  p.m.  to his election office. He was  asked  to  bring         sodas  to his election office.  He took two dozens  of  soda         bottles  to Rao’s office and there he heard him  saying  "If         Congress  votes are polled I am sure to lose  and  requested         them  to see that votes are not polled if necessary even  by         violence".  He names certain persons present there.   There-         after he was asked to take some soda bottles to the Congress         election office of Reddy.  There P.W. 31 asked him "You  had         been to the election office of the first respondent, what is         going  on  there ?".  The said sodawala  replied  "that  the         first respondent was telling that if all the votes in Chinna         Ganjam  are  polled he was sure to be defeated and  even  by         resorting  to  violence they should see that votes  are  not         polled".  Is it a natural story ? Is it at all believable  ?         Was this conspiracy  for creating violence at Chinna  Ganjam         suddenly  and  so openly hatched up in  the  Rao’s  election         office  at  Chinna  Ganjam and in the presence  of  so  many         persons ? Was it so done uttering every relevant word of the         conspiracy  in  the presence of the sodawala and  making  it         audible to him ? Is it possible to believe that the sodawala         passed on the words of the conspiracy to create violence  at         Chinna  Ganjam  in  a cavalier and casual  manner    on  the         query  of  P.W.  31 ? All these questions  posed  above  are         suggestive  of  one and one answer only.   The  whole  story         smacks of nothing but untruth.  It could never have happened         in the manner stated by P.W. 32.  P.Ws. 29,30, 31 and 42 who         claimed  to have heard this story from the sodawala are  all         out to support Reddy on any version and they cannot fare any         better  if the most unnatural story told by sodawala is  too         big to swallow and too incredible to accept .In disagreement         with the findings of the High Court, we hold that Reddy  has         failed  to  prove  that Rao and Venkatadri  came  to  Chinna         Ganjam  in the evening of the 4th March, 1972 or  that  they         instructed  their agents and workers to deliberately  create         violence on the date of poll.  We also hold that  Venkatadri         was not present at Chinna Ganjam on the 5th of March and had         no part to play in the disturbances which took place on that         date.           It  is no doubt true that disturbances did take  place  at         Chinna  Ganjam on the 5th of March.  It was not a  one  side         affair. Both sides were responsible for entering into clash-         es.   The  High  Court has lightly brushed  aside  one  very         significant  fact  in this connection and which  is  a  very         telling  one. How is it that in the police fire two  persons         were injured--one of whom died, and both of them were men of         Reddy ?  In the circumstances, is it possible to accept that         the  police fired only on the fleeing party of  about  2,000         persons ? The evidence on the side of Reddy shows that  they         did not aim any firing on the aggressors and  attackers--the         men  of  Rao who all were on the western side.   Unless  one         could go to the absurd extent of saying that members of  the         police  force had also joined hands with the mob of Rao  one         has got to conclude that, mainly, aggressors and attackers          507         were the persons on the side of Reddy.  They were the source         of danger and .terror to the polling staff and the materials

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       of the polling booths and the police had to open fire aiming         at  them  for the  protection of the polling staff  and  the         materials.  It is because of that reason that by the  police         firing  two persons on the side of Reddy only  were  injured         and  none  on  the side of Rao.  We are  inclined  to  think         strongly  and justifiably that because of  the  disturbances         which  took  place  on the 5th of March, 1972  both  in  the         morning and in the afternoon at Chinna Ganjam, Reddy felt it         advisable to make a mountain out of it, and apart from  many         other unsustainable allegations of corrupt practices,  which         are  made against Rao, he made use of the incident  of  dis-         turbances  on the date of poll at Chinna Ganjam  to  connect         Rao  and  his election agent with  them.   Without  alleging         their active participation or consent he had no material  to         succeed merely. on the ground of disturbances. And that  led         him to invent two tissues  of untrue stories-one the alleged         talk  by Rao in his election office in the night of the  4th         March  and  the other the presence of Venkatadri  at  Chinna         Ganjam  on the 5th.  In our opinion none of the two  stories         has  any  semblance of truth.  The High  Court  committed  a         gross error in placing reliance upon such intrinsically  and         inherently  weak  pieces  of oral evidence  as  against  the         contemporaneous documents.  The reports Exts. A-374 to A-381         of  the Presiding Officers of the Polling Station at  Chinna         Ganjam  do not throw any further light except that  due  to.         rioting  polling had to be adjourned.  The total  number  of         electors  in Chinna Ganjam was about 6000 and odd and as  we         have said above even assuming that a large majority of  this         was  to  cast their votes in favour of  Reddy,  by  creating         disturbances at Chinna Ganjam and preventing the voters from         casting  their votes in favour of Reddy or forcing ,them  to         cast  them in favour of Rao, Rao could not have imagined  to         succeed  in the election.  There is no evidence to  indicate         what  was  the estimated strength of Rao and  Reddy  in  the         remaining  67,000  votes which were to be  cast  at  several         booths other than those at Chinna Ganjam.  The date of  poll         being the 5th of March in the entire Purchur Constituency it         was  not possible even to estimate as to what  actually  had         happened in other booths to induce Rao to plan the  creation         of disturbances at Chinna Ganjam.             We  do not agree with the finding of the High  Court  on         issue  No.  l(a)(iii) that the polling had to  be  suspended         because  Rao’s people over 100 in number pelted  stones  and         disturbed the voters in the queues at the polling booths  of         Chinna Ganjam.  We are of the opinion that it was a  sponta-         neous trial of strength on both sides in which were involved         persons  on the side of Reddy led by Ronda  Ramaswami  Reddy         and several others who were helpers and workers of Rao.  The         under-current of their participation in the disturbances was         their  previous enmity as already alluded to.  Similarly  we         do not agree with the finding of the High Court as  recorded         under issue no..l(a)(iv).  If 300 persons armed with  sticks         and  stones pelted stones on the queues of the  voters  then         some  of them must have been injured by the  police  firing.         But none was injured.  No responsible government servant has         been examined to say anything in support of Reddy’s story of         the disturbances.  We were informed         508         by  Mr. Bhandare that a magisterial enquiry into the   inci-         dent  had been made.  An Inspector General of Police,  Andra         Pradesh had also held an enquiry in respect of the  disturb-         ances which took place at Chinna Ganjam on the 5th of March.         By  filing  an affidavit in the High Court  Rao  wanted  the         reports  of  the  Magistrate and the  Inspector  General  of         Police to be produced.  But they were not made available  as

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       according to him the reports must have stated matters  going         in favour of Rao and against Reddy. Coming to the finding of         the High Court apropos issue no. l(a)(v)  we want to  merely         observe  that  Reddy must have been attacked by the  mob  in         which must have been Rao’s men.  But it was not as a  result         of  any  conspiracy, instructions or consent of Rao  or  his         election  agent.  At or about the time when the  clashes  on         the two sides were at their peak at about 2.00 p.m.--the mob         on the side of Reddy was on the eastern side and that of Rao         was  on the western side.  Apprehending police firing or  on         its  start  the  mob fled helter skelter.  The  mob  on  the         western  side must have lied towards village  Sobhirala  for         their  safety.  In the way, they came across Reddy  and  as-         saulted him.  While condemning in the strongest language the         assault  on Reddy, whoever were responsible for this, we  do         not  find  good reasons to connect the assault with  Rao  or         Venkatadri.             The High Court has presumed consent of the respondent in         what  happened on the 5th of March at Chinna Ganjam  because         of  the  respondent’s application Ext. A-273  in  connection         with  the release of an Ambassador car MSM 2383  engaged  in         his  election campaign which had been seized by  the  police         while  parked at the railway gate of Chinna Ganjam.  It  was         just a coincidence that at the  time the assault was made on         Reddy, the car happened to be there.  The presence of Badugn         Subbarao  either  in  ,the car or near it again  may  be  an         isolated  act of Badugu Subbarao but the gap to connect  the         incident directly or indirectly with Rao to say that it  was         done  with his consent is too big to be filled in by  refer-         ence to the seizure of the car and the prayer of release  of         the Ambassador car.             For  the  reasons stated above, we hold  that  the  High         Court has not decided issue no. 1 (b) correctly.  No corrupt         practice  was  established  to have been  committed  by  any         person with the consent of the respondent or by his election         agent  and the election of Rao, therefore, was  wrongly  de-         clared to be void under section 100(1)(b) of the Act.             Even so, we had to consider whether Civil Appeal 686  of         1974  filed  by Reddy is fit to be allowed. Rao may  not  be         guilty  of having committed any corrupt practice yet, if  on         recount it could be found that Reddy had polled majority  of         votes,  he  could  succeed in both the  appeals.   Mr.  Sen,         learned counsel for appellant Reddy made his submissions  in         regard to two types of ballot papers only and urged that  if         we  were to hold in his favour in that regard the result  of         the counting would definitely tilt in favour of Reddy as  he         will  have polled more votes than those polled by Rao.   For         the  reasons to be hereinafter stated, we do not accept  the         argument of Mr. Sen to be well founded and correct and  hold         that the result of the number of         509         votes polled by each candidate arrived at by the High  Court         is  correct and does not call for any interference  by  this         Court.             The first objection raised on behalf of Reddy relates to         rejection  of  338 votes apparently appearing to  have  been         cast in his favour but were rejected on the ground that  the         marks  given on them were on the reverse side of the  symbol         and  not on the obverse side. Several such votes  apparently         cast in favour of Rao were also rejected. Mr. Sen  submitted         that 338 votes ought to have been treated as validly  polled         by Reddy.  We do not accept this contention to be sound.  In         our  opinion  the High Court has  rightly  maintained  their         rejection.  Rule 39(2)(b) of the Conduct of Election  Rules,         1961--hereinafter referred to as the Rules, requires:

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                (2) The elector on receiving the ballot paper shall                  forthwith;                  (a) proceed to one of the voting compartments;                  (b) there make a mark on the ballot paper with  the                  instrument supplied for the purpose on or near  the                  symbol  of  the candidate for whom  he  intends  to                  vote;"         On  a  plain reading of the said rule it is clear  that  the         voter  has  to  make the mark on the ballot  paper  and  not         behind  the ballot paper. The symbols are given on  the  ob-         verse or the front side of the ballot paper and the require-         ment of the rule to mark on the ballot paper on or near  the         symbol of the candidate for whom the elector intends              to  vote necessarily means marking on the obverse  side         either  on  the symbol itself or so near it  as  to  clearly         indicate the intention of the voter.  Putting a mark on  the         reverse  side  even though because of the  thinness  of  the         paper  the symbol may be visible is far from complying  with         the  requirement  of the rule.  Such a mark  will  make  the         ballot  paper in substance and in effect bearing no mark  at         all  within the meaning of clause (b) of sub-rule   (2)   of         rule  56 of the Rules or bearing a mark indicating the  vote         thereon  placed in such a manner as to make it  doubtful  to         which  candidate  the  vote has been  given  justifying  its         rejection under clause (d).  Mr. Sen called our attention to         the  recent amendment of the Rules made in 1974  wherein  it         has been clearly specified that the mark must be put on  the         face of the ballot paper and also that the ballot paper must         be  rejected  if it does not bear a mark on  the  face,  and         submitted that on the language of the rules as they stood at         the relevant time in this case ballot papers bearing mark on         the  reverse side against the symbol of a particular  candi-         date indicating the choice of the voter could not be reject-         ed  as  invalid.  We think that the amendment  of  the  rule         merely clarifies what was intended earlier and does not make         any  change or departure from the previous position.   Since         some High Courts had taken a contrary view while considering         the  rules or similar rules, for the sake  of  clarification         and precision, it appears to us, that amendment of the  rule         became necessary.  A single Judge of the Andhra Pradesh High         Court dealing with similar Gram Panchayat Rules had taken  a         contrary  view in W.P. 2851/70, decided on 10-12-1970.   The         learned Judge followed the decision of  the  Allahabad         510         High  Court  in Swarup Singh v. Election Tribunal(1)  and  a         decision  of  the  Rajasthan High Court  in  Dhanpatlal   v.         Harisingh(2).   We  hold that the view  expressed  in  those         cases  is not correct.  On the contrary the decision of  the         Madras High Court in A. V. Palaniawami v. The Election Court         (District  Munsif),  Tiruppur and others(3) in  this  regard         expresses  the correct opinion. The point in that case,  has         been  well discussed with reference to  various  authorities         both  in India and other countries.  We would like to  refer         to  the dictum of Baron Pollock in Mr. Sykee v. Mr. Mc  Arl-         hur(4) wherein it has been said that the mark must be on the         face of the ballot paper and that the vote bearing cross  on         the  back being not in compliance with the Act  was  rightly         rejected.  On the basis of the decision aforesaid as also on         some  others a passage is to be found at page 140  in  Hals-         bury’s  Laws of England, Third Edition, Vol. 14 to the  fol-         lowing effect:                         "A  ballot  paper marked on  the  back  only                  should  not be counted, even though the mark  shows                  through the paper                  on to the front".

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        The High Court has noticed in its judgment paragraph  17(k)         of Chapter VIII of the Hand Book issued and published by the         Election Commission in 1972 for the guidance of the  Return-         ing  Officers. While indicating the procedure for  counting,         the  Returning  Officers have been instructed  to  reject  a         ballot  paper when there is no mark at all on the  front  or         when  the mark is in blank area, that is to say at the  back         or  entirely in the shaded area.  It is no doubt  true  that         the  binding directions either generally or specially  could         be  issued by the Election Commission under sub-rule (1)  of         Rule 56.. Sub-rule (2)  does  not  speak  about  the   issu-         ance  of  any  such directions.  Even so in our opinion  the         administrative  instructions issued by the Election  Commis-         sion  give  a clue to the interpretation of rule  39(2)  and         rule 56(2) of the Rules.  The instructions so issued are  in         onsonance with the interpretation of the rules aforesaid  as         put by us.             The second objection relates to the acceptance in favour         of  Rao two groups of ballot papers-one group consisting  of         186  votes  and  the other 262 votes.  The  High  Court  has         separately  dealt  with them in its judgment.   Out  of  186         votes  Ext.   X-26   contains  135   votes,  X.27-11  votes,         X.28-38 votes.  X.29-one vote and X.30-one  vote. Out of the         other group Ext. X.31 contains 241 votes, X.32 one vote  and         X.33-20 votes.  The High Court has mentioned  the  different         types of defects which remained on the two groups of  ballot         papers  aforesaid.   Broadly speaking the  defects  were  an         infraction of rule 38(1) of the Rules making them liable  to         be  rejected  under clause (h) of sub-rule (2) of  rule  56.         But then under the first proviso to sub-rule (2) it has been         stated ;                          "Provided that where the returning  officer                  is  satisfied that any such defect as is  mentioned                  in clause (g) or clause (h) has been caused by  any                  mistake or failure on the part                  (1) A.IR. 1960 All. 66.                  (2) AI.R.  1969 Rajasthan, 92.                  (3) (1973) 2 Madras Law Journal, 60                  (4) 4 O’Malley and Hardeastle, 110.                  511                  of  a  presiding officer or  polling  officer,  the                  ballot  paper shall not be rejected merely  on  the                  ground of such defect."             On  a consideration of the evidence adduced by the  par-         ties   and the broad probabilities and the circumstances  of         the  case the High Court has come to the conclusion, and  in         our  opinion  rightly, that the said two  groups  of  ballot         papers  were rightly not rejected by the  Returning  Officer         and  were correctly counted for Rao.  The Returning  Officer         while  accepting  a ballot paper, even though,  he  does  so         under the proviso aforesaid, is not required to  record  any         reasons   for acceptance.  Reddy had not made out  any  case         that any  objection had been taken on his behalf as respects         the  acceptance  of  the above mentioned votes  of  the  two         groups.   No objection was specifically raised in the  elec-         tion  petition  that  any of the ballot  papers  counted  in         favour of Rao should have been rejected under rule  56(2)(h)         or  that it could not be accepted under the  proviso.  Reddy         seems to have fished in troubled waters because of the order         of  recount made by the High Court in connection  with  some         other  defects which justified the making of such an  order.         The finding of the High Court in clearest term, which  could         not be assailed before us with any success, is as follows:                        "Having  regard to the above  discussion,  it                  cannot be held that in the instant case the  ballot

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                papers which did not contain both the  distinguish-                  ing  mark  and the signature of  the  Presiding  or                  Polling  Officer or where either the  signature  or                  the  mark  was  not present were  accepted  by  the                  Returning Officer, without satisfying himself as to                  whether  that defect was due to the mistake or  the                  failure  of the Presiding Officer or Polling  Offi-                  cer.  As that is not established and as it is, also                  clear  to the Court from the record  placed  before                  it,  that these defects have occurred only  due  to                  the failure of the Presiding Officer and further as                  there  is no doubt aS to the genuineness  of  these                  ballot  papers, it is held that the  ballot  papers                  were rightly accepted by the Returning Officer."         In  our judgment the High Court is right in arriving at  the         respective figures of valid votes ’polled by the two  candi-         dates  after recount as per the order of the High Court  and         in arriving at the conclusion that Rao had polled the major-         ity of the votes.             For  the reasons stated above we allow Civil Appeal  No.         583  of 1974, set aside the judgment and order of  the  High         Court declaring the election of M. Narayana Rao--the  appel-         lant  in that appeal, void. We dismiss Civil Appeal No.  686         of 1974 filed by C. Venkata Reddy. Taking into consideration         the totality of the circumstances of the case, we shall make         no order as to costs in either of the two appeals.                                         C.A. 583 of 1974 allowed.         P.H.P.                         C.A. 686 of 1974 dismissed.         512