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PETITIONER: D. VENKATA REDDY

       Vs.

RESPONDENT: R. SULTAN & OTHERS

DATE OF JUDGMENT24/02/1976

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA GOSWAMI, P.K.

CITATION:  1976 AIR 1599            1976 SCR  (3) 445  1976 SCC  (2) 455  CITATOR INFO :  R          1976 SC1866  (4)  R          1978 SC1162  (8)  R          1979 SC 154  (37)  R          1980 SC1347  (3)  R          1985 SC  89  (20,25)

ACT:      Representation of  the People  Act (43 of 1951), ss. 81 and 86(S)-Application  for amendment  of petition for giving material particulars-To what extent may be allowed Amendment allowed in  violation of s. 86(S) without objection-If could be challenged in appeal to Supreme Court.      Election  petition-Approach   of    court  to  evidence regarding corrupt  practices-Tained and interested evidence- Necessily  for  corroboration  Attitude  of  court  to  poll verdict-Material particulars and evidence, scope.

HEADNOTE:      The respondent,  who was  a Muslim,  was  the  Congress candidate for election to the State Legislative Assembly. He challenged the  appellant’s  election  and  the  High  Court allowed the  election petition on three grounds (1) that the appellant committed  a  corrupt  practice  under  a  123(1), Representation of  the People Act, 1951 in that he offered a bribe to  the respondent  to induce  him not  to contest the election; (2)  that the appellant committed corrupt practice under  s.   123(3A)  in   that  he   issued  and  personally distributed a  pamphlet containing communal allegations with a view  to create ill-feeling among the voters; and (3) that the appellant’s  agents distributed  that pamphlet  with the appellant’s contest.      Allowing the appeal to this Court, ^      HELD :(1)(a)  While it  is  necessary  to  protect  the purity of  elections by  ensuring that  the candidate do not secure the  valuable votes of the people by undue influence, fraud,  communal   porpaganda.  bribery   or  other  corrupt practices, the  valuable verdict of the people at ’the polls must be  given due  respect and should not be disregarded or set at  naught on  vague, frivolous or fanciful allegations, or on  evidence  which  is  of  a  shaky  or  pre-varicating character. [450F-G, H]

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    (b) Tho onus lies heavily on the election-petitioner to make out  a strong  case for  setting aside the election. He must, in  order to  succeed. plead  all material particulars and prove them by clear and Cogent evidence. [450G; 451K]      (c) The  allegations of  corrupt practice  being in the nature of  a quasicriminal  charge, must  be  proved  beyond reasonable doubt.  When the  election  petitioner  seeks  to drove the charge by purely partisan evidence of his workers; agents. supporters  and friends  the  court  would  have  to approach the  evidence with  great  care  and  caution,  and would, as a matter of prudence, though not as a rule of law, require corroboration  of  such  evidence  from  independent quarters, unless  the court  in  fully  satisfied  that  the evidence is  so creditworthy and true, that no corroboration to lend further assurance Is necessary. [451A]      (d) The  attempt of  the agents  or supporters  of  the defeated candidate  is always  to get the election set aside by fair  means or  foul and  the evidence of such witnesses, must,  therefore,  be  regarded  as  highly  interested  and tainted evidence. [451C-D]      (e) When,  the evidence led by the election-petitioner, even   though   consistent,   is   fraught   with   inherent improbabilities and  replete with  unnatural tendencies, the court  may   refuse  to   accept  such   evidence,   because consistency alone h not the conclusive test of truth. It is, however,  difficult  to  lay  down  any  rule  of  universal application and  each case  will have  to be  decided on its facts. [451D-E],      Bhanu Kumar Shastri v. Mohan Lal Sukhadia & Ors. [1971] 1 S.C.C  370; Rahim  Khan v.  Khurshid Ahmed & Ors. [1974] 2 S.C.C. 660;  Abdul Hussain  Mir v. Shamsul Huda and another, [1975] 4 S.C.C. 533 and Ghasi Ram v. Dal Singh & Ors. [1968] 3 S.C.R. 102, followed. 14-L522SCI/76 446      (2) In  the present  case,  the  High  Court  correctly adumbrated the  legal propositions  but  had  not  correctly applied them  to the  facts and  evidence. It  also  applied different standards in appreciating the evidence. It readily accepted ll the evidence of two witnesses on one issue while rejecting as  partisan  and  interested  on  another  issue. [453A-D]      (3)   The    cumulative   effect    of   the   inherent improbabilities  and   the  intrinsic   infirmities  of  the evidence for  the respondent,  and the  unnatural conduct of the respondent  and his  witnesses, lead  to the  conclusion that the  respondent had  failed to  prove the allegation of the offer of bribe. [465B-C]      (a) The  respondent bore  a serious  animus against the appellant and  yet it was alleged that the appellant offered him a  bribe even  though they were not well-acquainted with each other. [458G. 460D] .      (b) The  offer was  alleged to  have been  made in  the presence of two witnesses,’ in a crowded‘ place’ and pressed upon the  respondent even  though he  spurned it.  The  High Court is not right in its view that an offer could have been made as alleged, and that only for actual payment a secluded place could be chosen. [458F-H; 459B-C]      (c) The  High Court  is also not right in its view that because the  appellant was.  at the  Taluk Office  when- the respondent went  there the  appellant would have offered the bribe. On  the  contrary,  the  respondent,  for  that  very reason, might  have concocted  this story  of the  offer  of bribe. [457E-F]      (d) The  High Court  failed to consider, (i) that while

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it is  easy to  make an  allegation of offer of bribe, it is very difficult  for the  person against  whom it  is made to rebut it; [457G-E]      (ii) that the allegation was sought to be proved by the respondent, by  the partisan and highly interested testimony of two  witnesses and  was sought  to be corroborated by the equally interested  testimony of  two  others  to  whom  the incident  was   alleged  to   have  been   narrated  shortly thereafter. and  that t-he  respondent had  not examined any independent  witness,   even  though   such   witness   were available; [457H-458A]      (iii) that  the appellant  would not  have attempted to bribe  the  respondent  because,  the  respondent  had  the, support of  the Congress,  and even  if he  with- drew,  the Congress would have put up another candidate. [461B-CI      (iv) that  the respondent  had not complained about the bribe either  to the  local Congress  committee  or  to  the police; and [461F-G; 464D-E]      (v)  that   there  was   no  reference  either  to  the corroborating witnesses  or to the narration of the incident of the  offer of  the  bribe  to  those  witnesses,  in  the petition. If it were true it is unlikely that the respondent would have omitted a reference to it. [464A-B]      (e) Further. the fact of repetition of the story of the offer of  bribe to  the two  corroborating witnesses  was  a material particular  or an additional fact pertaining to the averments In the petition and not a mere matter of evidence. Since it  was nob  mentioned in  tho petition  it has  to be excluded from consideration. [464B-C]      (f) As  the alleged  offer is an electoral offence of a quasi-criminal nature,  the onus of proving it was initially on the  respondent, but  he failed  to discharge  the  onus. [464A-H]      (g) If  such a  serious allegation  is  allowed  to  be proved  against   a  successful.   Candidate  by   partisan, interested and  improbable evidence, without any independent corroboration, it  would give an easy handle to the defeated candidates to destroy the sanctity of the electoral process. [464A-465B]      (4) The  respondent has  not ’adduced  any satisfactory evidence that  the r  offending pamphlet  was printed by the appellant or  distributed by  him personally,  whereas,  the appellant has, through his evidence, Though of a 447 negative character,  shown that  the probabilities  are that the appellant  did not A have it printed and that he did not distribute it. [491E-F]      (a )  Distribution of  an objectionable  pamphlet is  a corrupt practice  under s.  123(4) and  the pamphlet  in the present case,  containing communal propaganda comes under s. 123(3A) as well. [471G-H; 474E]      (b) The  allegation of publishing such an objectionable pamphlet is  easy to  make and difficult to rebut. The court must subject  the tainted  and interested evidence regarding its publication  to the strictest scrutiny because it-can be printed by the defeated candidate in any press with secrecy. circulated among  his supporters  and he  can make  them say that  it  was  printed,  published  and  circulated  by  the successful candidate. [471H-472B]      Baburao Bagaji  Karemoga and  ors. v.  Govind  &  Ors., [1974] 3 S.C.R. 719, followed.      (c)  The   appellant  had   denied  the   printing   or publication of  the pamphlet  and’ the  respondent failed to discharge his  initial onus  of proving  that the  appellant printed and distributed it. [472D-E]

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    (d) Since  there were  a considerable  number of Muslim voters in  the constituency,  the appellant’  would not have taken the  risk of  ’offending them  by circulating  such  a pamphlet. The  respondent, on  the other  hand, had a strong motive to  reverse the  appellant’s election by any possible means, and he had his own press. [472H; 474F-G, H]      (e) The High Court was wrong in its approach that since the pamphlet  contained anti-Muslim  propaganda it would not have  been   printed  by  the  respondent.  An  unsuccessful candidate, motivated  by the  desire to  unseat a successful candidate, would  stood to  any  device  to  show  that  the successful candidate was guilt of a corrupt practice. [472G]      (f) Merely because the respondent disclosed the name of the press  where he  got some  other pamphlets  printed,  it could not  be contended  by him that he would have disclosed the name  of the  press which printed the offending pamphlet if he  got it  printed. The contents of the pamphlet were so offensive that  the printer would not have taken the risk of disclosing the  name of  the press  and expose  it to  legal action. [491B-C]      (g) Most of the witnesses for the respondent who stated that the  pamphlet was  given to  them before  or during the election were  of the  turn coat  type, that is. persons who claimed to  have worked  for the appellant but gave evidence for the  respondent; and  tho others were in some way or the other totally interested in the respondent or connected with him. [479F]      Rahim Khan  v. Khurshid  Ahmed and others, [1974] 2 SCC 660. followed. F      (h) one  witness gave  evidence that  he  received  the pamphlet from  his wife  during the  election. but since she was not  examined, the  evidence was rightly rejected by the High Court. [490H-491A]      (i) The  High Court  held  that  the  pamphlet  was  in existence before  or during  the election, applying the test that the  pamphlet was  produced by  tho witness  who stated that it  was given  to him by the appellant. But that cannot be a  safe criterion  because,  the  respondent  could  have handed it  over to  the witness  before  he  have  evidence. Further. the  probabilities are  that it  was  not  then  in existence. [471C-E]      (i) Respectable  witness of the appellant gave evidence that no  such pamphlet  was circulated,  for then they would have  known  about  it.  Also  considering  its  provocative language, it  is  unlikely  that  the  Government  officials posted to  prevent any communal propaganda by the candidates would have failed to notice it. [473B: 474G-H]      (ii) Further,  the respondent  would not have failed to give  in   the  petition  or  in  the  material  particulars furnished by him later, the name of the persons from whom he came to  know about  the pamphlet.  The respondent collected materials for  filing the  election petition  soon after the appellant was declared 448 elected and  more than a month before filing it. In spite of such a  full and  complete  opportunity  before  filing  the petition, and  later when  the appellant applied for further particulars regarding  the distribution of the pamphlet, the respondent merely gave the names of certain villages and the dates on  which  the  pamphlet  was  alleged  to  have  been distributed; but  he did  not mention  tho name  of a single person to  whom the  pamphlet had‘been  distributed  by  the appellant personally,  even though,  according to the led by the respondent,  he. was  in  possession  of  such  damaging evidence against the appellant. [470B-471B; 475A-B; 490C-E]

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    (iii) The respondent had made several complaints to the police about  various matters but did not complain about the pamphlet  either   to  the  police  or  the  local  Congress committee. If  his silence  was  due  to  legal  advice,  as contended, he  should have  given  the  explanation  in  The petition or  examined the  lawyer who  gave such  an  advice [487E-F; 490E-E]      (5) (a)  Section 81 of the Representation of the People Act, 1951,  provides that  the election  petition  shall  be filed within  45 days  From tho  date of the election of the returned candidate.  Therefore, any  allegation  of  corrupt practice which  is not  made in the election petition filled within the  time allowed by the statute cannot be allowed by way of  an amendment  under s.  86(5)  because,  that  would amount to  extending the  period of  limitation peremp orily fled by the A. The ambit of s. 86(5) is extremely narrow. It requires three  essential conditions  which arc the sire qua non to  be fulfilled  before an  amendment could be allowed, namely (i)  that the  amendment seeks  merely to amplify the particulars, of  a corrupt  practice; (ii)  that the corrupt practice, whoso  particulars are to be given, must have been previously alleged  in the  election  petition  itself,  and (iii) that  the amendment  is, in  the opinion  of the court necessary for  ensuring a  fair and  effective trial  of the petition. The  power of  amendment or  amplification is thus restrict ed  only to amplify the material particulars of any corrupt practice  which had  been previously  alleged in the election petition,  and the  court has  no power to allow an amendment by  permitting the  election petitioner to amplify the material  particulars of  a corrupt  practice which  was specifically pleaded In the petition; for, that would amount to introducing  a new  corrupt practice  after the expiry of the period  of limitation-a result which was never envisaged by the statute. [466H; 467B-C, E-Hl      Samant N.  Balakrishna etc. v. George Fernandez & Ors., etc., [1969] 3 S.C.R. 603, followed.      (b) In  the present  case,  reading  the  averments  in election petition  as a  whole, however broadly or liberally they are  construed, the  irresistible inference is that the respondent  had   laid  special   stress  on   the  fact  of distribution  of   the  pamphlet  by  the  appellant  alone. Wherever the  averment of  distribution of  the pamphlet  is made in  the petition,  it is stated that it was done by the appellant. There is absolutely no averment that tho pamphlet was distributed  by tho  agent,  workers  or  supporters  or friends of  the appellant. Hence, it could not be con tended by the  respondent that  tho averments  include  not  merely distribution by  the appellant,  but also  by his agents and workers.  Since   there  was  no  pleading  at  all  by  the respondent that  the pamphlet was distributed by his agents, etc.,  particulars   supplied  by   the  respondent  in  his application for  amendment of  his. petition on the point of distribution   by   agents,   etc.,   must   be   completely disregarded. The  court also  has no  jurisdiction to  allow such particular  to be  given with  respect to tho fact that the pamphlets  were distributed by the agents and supporters of the  appellant. Therefore,  the amendment,  in respect of the third ground on which the judgment of the High Court was based,  should   not  have  been  allowed,  the  particulars mentioned  by   the  respondent   on  this   item.  must  be disregarded, the  evidence given  by him  should be excluded from consideration, and the finding of the High Court should be set aside. [468H-469D, E-F]      (c) The  attention of  tho High  Court was not drawn by the appellant  to this  aspect but, as it is a pure question

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of law  and amounts to violation of the statutory mandate in s. 86(5)  this Court  can decide  on the  correctness of the order of  the High  Court,  allowing  particulars  regarding distribution  of   pamphlet  by  the  agents  etc.,  of  the appellant. [469D-E] 449

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1170 of 1973.      (From the judgment and order dated the 25-4-1973 of the Andhra Pradesh  High Court  in Election  Petition No.  4  of 1972)      P. Basi  Reddy, C.  Sadasiva Reddy, G. Narayana Rao and Mrs. Vimala Markendeyulu, for the appellant.      B. Shiv  Shankar, A.  V. Rangam, Miss A. Subhashini and K. Venkata Ramiah, for the residents.      The Judgment of the Court was delivered by      FAZAL ALI,J.-  This is  an appeal  under s. 116A of the Representation of the People Act, 1951 (hereinafter referred to as  ’the Act’)  by Venkata Reddy who was Respondent No. 1 in the  election petition  filed before  the High  Court  of Andhra  Pradesh.  The  appeal  arises  out  of  the  general elections held to the Andhra Pradesh Legislative Assembly in March 1972  from Gooty  Assembly Constituency. The appellant Venkata Reddy,  T. Papa  Sab and  R.  Sultan  (the  election petitioner before  the  High  Court)  applied  for  Congress ticket  for   the  Gooty  Assembly  Constituency  seat.  The District Congress Committee, Anantapur recommended the names of R.  Sultan, Papa  Sab and  Ramachandra Goud  but did  not recommend the  name of  the  appellant  The  Andhra  Pradesh Provincial Congress  Committee,  however;  recommended.  the name  of   R.  Sultan   the  first  respondent  alone.  This recommendation appears  to have  been accepted  by  the  All lndia Congress  Committee which  gave the Congress ticket to the first  respondent R.  Sultan oh  February 1,  1972 as  a result thereof  the other  candidates, namely, the appellant Venkata Reddy,  T. Papa  Sab and Venkata Subbayya decided to contest the  election  as  independent  candidates,  whereas Venkata Naidu  got the  Congress (O)  ticket. The polling to the aforesaid  constituency was  held on  March 8,  1972 and counting was done on March 12, 1972 on which date the result was also declared. The appellant was declared elected having secured 19,974  votes polled in the constituency. Respondent No. 1  R. Sultan lost by a narrow margin of 471 votes having polled 19,503  votes. The other respondents were accordingly defeated and we are not at all concerned with their cases.      Respondent No.  1 R.  Sultan filed an election petition before the Andhra Pradesh High Court on April 20, 1972 which was assigned  to  Sriramulu,  J.,  who  tried  the  election petition. For  the sake  of convenience  we shall  refer  to Venkata Reddy  as the  appellant and  R. Sultan  who was the election petitioner  before the High Court as the contesting respondent. The  contesting respondent  sought to  challenge the election of the appellant on various grounds and alleged that the appellant had indulged in a large number of corrupt practices as  envisaged  by  s.  123  of  the  Act.  namely, bribery, corruption,  communal propaganda,  impersonation of voters, excessive expenses, improper rejection and reception of ballot  papers etc.  The contesting respondent also filed an application  before the  Trial Judge  that as  number  of irregularities  were   committed  in   tho   rejection   and acceptance of  the ballot  paper,  the  Court  should  allow

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scrutiny 450 and recounting  of the  votes. The  Court, after considering the evidence  of  the  parties  on  this  point,  eventually allowed the application, but ultimately it held that even if there was  any irregularity it had not caused any material . change in  the election.  The petition  was resisted  by the appellant who  emphatically denied  all the allegations made by  the   contesting  respondent   and  submitted  that  the elections were  free and fair and that the appellant had not indulged in  any corrupt  practice  at  all.  The  appellant further  pleaded  that  all  the  allegations  made  by  the contesting respondent  were figment  of his  imagination and were totally  untrue. On  the question of corrupt practices, particularly the distribution of objectionable pamphlets, as the contesting  respondent had  not given  full and material particulars in his election petition,.the appellant filed an application on  July 7,  1972 praying  that  the  Court  may direct the  contesting respondent to file better particulars by way  of amendment.  The  Court  directed  the  contesting respondent to  supply fresh  particulars and accordingly the contesting respondent filed his application for amendment by incorporating material  particulars on  August 29,  1972. On the pleadings  of the  parties the High Court framed as many as 35  issues in the present case. After taking the evidence of the  parties the Court decided all the issues against the contesting respondent  except issues Nos. 7, 26 and 27 which were decided  in favour  of the  con testing  respondent. In view of the findings given by the learned Judge the election of the  appellant was  set  aside,  but  the  learned  Judge refused to grant the relief to the contesting respondent for being declared  as duly  elected to the seat in question. It is against  this decision  that the appellant has come up to this Court in appeal.      Mr. P. Basi Reddy learned counsel for the appellant has assailed before  us the findings of the High Court on issues Nos. 7,  26 and  27 as  these were  the  only  issues  which affected the  appellant. Mr. B. Shiv Sankar, learned counsel for the contesting respondent has endeavoured to,support the judgment of  the High  Court by submitting that the findings arrived at  by the  High Court  were based  on a correct and proper appreciation  of  the  evidence  and  the  facts  and circumstances or  the record.  In a  democracy such as ours, the purity  and sanctity  of elections,  the sacrosanct  and sacred nature of the electoral process must be preserved and maintained. The  valuable verdict of the people at the polls must be  given due  respect and  candour and  should not  be disregarded or set at naught on vague, indefinite, frivolous or fanciful  allegations or  on evidence which is of a shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for  setting aside an election. In our country election is  a   fairly  costly   and  expensive   venture  and   the Representation of  the People  Act has  provided  sufficient safeguards to  make the  elections fair  and free.  In these circumstances. therefore, election results cannot be lightly brushed aside  in election  disputes. At the same time it is necessary  to   protect  the  purity  and  sobriety  of  the elections by  ensuring that the candidates do not secure the valuable votes  of the  People by  undue  influence.  fraud, communal propaganda,  bribery or  other corrupt practices as laid down in the Act. 451      Another principle  that is equally well settled is that the election  A petitioner  in order  to succeed  must plead

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all. material  particulars’  and  prove-them  by  clear  and cogent evidence.  The allegations of corrupt practices being in the  nature of  a quasi-criminal  charge the same must be proved beyond  any  shadow  of  doubt.  Where  the  election petitioner seeks  to prove  the charge  by  purely  partisan evidence ? consisting of his workers, agents, supporters and friends, the  Court would have to approach the evidence with great care  and caution,  scrutiny and  circumspection,  and would, as  a matter  of prudence  r though  not as a rule of law, require corroboration of such evidence from independent quarters, unless  the Court  is  fully  satisfied  that  the evidence  is   so  credit-worthy   and  true,  spotless  and blemishless, cogent and consistent, that no corroboration to lend further  assurance is  necessary. It has to be borne in mind that  the attempt  of the  agents or  supporters of the defeated candidate  is always  to get the election set aside by means  fair or  foul and  the evidence of such witnesses, therefore, must be regarded as highly interested and tainted evidence which  should be  acted upon  only if  the Court is satisfied that the evidence is true and does not suffer from any infirmity.  Where, however,  the  evidence  led  by  the election petitioner  even though  consistent is fraught with inherent  improbabilities   and   replete   with   unnatural tendencies, the  Court may  refuse to  accept such evidence, because consistency  alone is  not the  conclusive  test  of truth Judicial  experience shows  that sometimes  even  r  a tutored or  parrot’ like evidence can be consistent and free from discrepancies  and yet  not worthy  of credence. It is, however,  difficult   to  lay   down  a  rule  of  universal application because each case will have to be decided on its own facts,  but  in  appreciating  the  evidence  the  broad features mentioned above must be borne in mind and have been emphasised by  this Court  in a  large catena of decisions-a few of them may be refer red to here.      In Bhanu  Kumar  Shastri  v.  Mohan  Lal  Sukhadia  and others,(l) this Court observed as follows:           "Allegation of  corrupt practice  is a  charge  of      criminal nature.  The provisions  in the Representation      of the  People Act  are intended to preserve the purity      of the  election, but at the same time these provisions      should not  be subverted  for the  impure  purposes  of      maligning candidates who happen to be in the Government      on the eve of the election,            X    X    X           The Court is always vigilant to watch not only the      conduct  of   the  candidates   and  to  protect  their      character from  being defamed  hut also to see that the      character and  conduct of the public is not corroded by      corrupt motive  or evil  purposes  of  candidates.  The      genuine  and   bona  fide   aims  and   aspirations  of      candidates have  to be  protected on  the one  hand and      mala fide  abuse and arrogance of power will have to be      censured on the other." (1) 119711 I S.C.C. 370. 452      Similarly in  Rahim Khan  v. Khurshid  Ahmed &  ors.(l) Krishna Iyer,  J., speaking  for the  Court most lucidly and aptly observed as follows:           "An election  once held  is not to be treated in a      light  hearted   manner  and   defeated  candidates  or      disgruntled electors  should’ not  get away  with it by      filing election  petitions on unsubstantial grounds and      irresponsible evidence,  there by introducing a serious      element of  uncertainty in the verdict already rendered      by the  electorate. An  election  is  a  ,  politically

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    sacred  public  act,  not  of  one  person  or  of  one      official, but  of the  collective  will  of  the  whole      constituency. Courts naturally must respect this public      expression secretly written and show extreme reluctance      to set  aside or  declare void  an election  which  has      already been  held unless  clear and  cogent  testimony      compelling the  court to  uphold the  corrupt  practice      allege  against  the  returned  candidate  is  adduced.      Indeed election  petitions where  corrupt practices are      imputed must  be regarded  as proceedings  of a  quasi-      criminal nature  wherein strict proof is necessary. The      burden  is  therefore  heavy  on  him  who  assails  an      election which has been concluded." To the  same effect  is the  decision of this Court in Abdul Hussain Mir  v. Shamsul huda and Another(2) where this Court observed as fol lows:           "Even so, certain basic legal guidelines cannot be      lost sight  of while adjudging an election dispute. The      verdict at  the polls  wears a  protective mantle  in a      democratic polity.  The Court  will vacate  such ballot      count return  only on  proof beyond reasonable doubt of      corrupt practices.  Charges, such  as have been imputed      here, are  viewed  as  quasi-criminal,  carrying  other      penalties from  losing a  seat, and strong testimony is      needed to  subvert a Returning officer’s declaration. x      x x x x           When elections  are challenged  on grounds  with a      criminal taint  the benefit  of  doubt  in  testimonial      matters be longs to the returned candidate. Similarly in  Ghasi Ram  v.  Dal  Singh  &  others(3)  while emphasizing the  standard of proof in an election case for a corrupt practice  of bribery,  Hidayatullah, J.,  as he then was, speaking for the Court observed thus:           "In Anjaneya  Reddy v.  Gangi Reddy  and others-21      E.L.R. 247-it  was held  that  the  proof  required  to      establish a  corrupt practice  must be  almost  of  the      character required to establish a criminal charge.           In our  opinion the  law requires  that a  corrupt      practice involving  bribery must  be fully established.      The evidence must show clearly that the promise or gift      directly or      (1) [1974] 2 S.C.C. 660.       (2) [1975] 4 S.C.C. 533.                   (3) [1968] 3 S.C.R. 102. 453      indirectly was  made to  an elector  to vote or refrain      from voting at an election." A      We have  gone through  the judgment  of the High Court, particularly on  issue Nos.  7, 26  and  27  and  find  that although in his prelude to the discussion on issue No. 7 the learned Judge  has referred  to the  various authorities and has correctly  adumbrated the legal propositions he does not appear to  have applied  the principles  enunciated  in  the decisions correctly  to the facts or the evidence covered by this issue.  It also  appears that  the  learned  Judge  has applied two different standards in appreciating the evidence with respect  to issues  Nos. 7, 26 & 27 and other issues on which  he   has  given   findings  against   the  contesting respondent. For instance, while he has refused to accept the evidence of  a  partisan  or  an  interested  witness  being staunch supporters  of the  contesting respondent  on  other issues, particularly issue No. 8, he has, while dealing with the evidence  of the witnesses on issue No. 7 which suffers. from  the   self-same  infirmity,   readily  accepted  their evidence without  even noticing the deep interest that these witnesses had in supporting or bolstering up the case of the

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contesting respondent.  We shall,  however,  refer  to  this aspect of  the matter  after we have dealt with the evidence led by the parties on these issues.      In the  light of  the principles  enunciated by  us  we shall now proceed to discuss and examine the findings of the High Court  on issue  No. 7  and the evidence led thereon by the parties. Issue No. 7 was cast by the Trial Judge thus:           "Did the  1st respondent  (the appellant) commit a      corrupt practice  under s. 123(1) of the Representation      of the  People Act  by  making  an  offer  to  pay  Rs.      25,000/- to the petitioner and trying to induce him not      to contest the election ?" To begin with we would like to refer to the pleadings of the contesting respondent  in order  to show  the exact material particulars averred  in the  election petition  itself.  The allegation which  is the subject-matter of issue No. 7 is to be found  in paragraph-12 of the election petition appearing at p.  23  of  the  Paper  Book  (Vol.  I).  R.  Sultan  the contesting respondent  had alleged that he had applied for a Congress ticket  for Gooty  Assembly constituency  and.  was ultimately granted  the said  ticket by the Central Election Committee, Delhi  on February  1, 1972.  Although the D.C.C. ad-hoc Congress  Committee, Anantapur,  had recommended  the name of the contesting respondent and others, the Provincial Congress Committee  ‘recommended the  name of the contesting respondent alone  which was  finally accepted by the Central Election Committee  at Delhi.  After having  been given  the Congress  ticket   the  contesting  respondent  returned  to Hyderabad on  February 2,  1972  and  a  day  later  he  was contacted on  telephone by  Mustafa of  Guntakal one  of his supporters and  had a  talk with him regarding the filing of his nomination paper. The contesting respondent told Mustafa that he  would be  reaching Gooty  on February  4, 1972, for filing  his   nomination  papers   for  the  Gooty  Assembly constituency and that Mustafa also should reach Gooty on the morning of  February 4,  1972. We  might pause  for a little while 454 here and  notice two important averments. In the first place it was  the definite  case of the contesting respondent that his visit  to Gooty on February 4, 1972, was for the purpose of filing  his nomination  papers, but  it appears  from the evidence that  he did  not file  his nomination on this date but some  time later.  Secondly during his talk with Mustafa on the  telephone the  contesting respondent did not ask him to bring P.W. 29 Nabi Saheb and P.W. 33 Chinna Bhemanna with him to  Gooty. Resuming  the  thread  of  averments  in  the election petition, the further facts are that the contesting respondent reached  Gooty on February 4, 1972 at about 10-00 A.M. and  proceeded to Bharat Sewak Samaj-hereafter referred to as  ’B.S.S.’-Building which  is sometimes described as an office and sometimes as a Guest House in the evidence. P.Ws. 29 and  33 and  some others  were waiting for the contesting respondent at the B.S.S. Building. The contesting respondent then, along  with P.Ws.  29 and  33 went to Taluk office for obtaining a  copy of  the voters list for the Gooty Assembly constituency and  reached the  Taluk office  at about  11-00 A.M. While  he was  returning  from  the  Taluk  office  the appellant met  the contesting  respondent and wished him and after talking for some time he made an offer of Rs. 25,000/- to be  paid to  the contesting  respondent if  he agreed  to withdraw from  the election  and help  the  appellant.  This offer is  said to have been made in the presence of P.Ws. 29 and 33.  Even after  the contesting  respondent refused  the offer he  was again  persuaded by  the appellant to consider

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the same  and on  his final refusal the appellant threatened that the  contesting respondent  was bound to face defeat in the elections.  It was  also alleged that the appellant took the refusal  of the  offer as  a challenge  and spent  money lavishly to  win the election. The last part of the averment which forms  the subject-matter  of issue  No. 8 and certain other issues  has not been accepted by the High Court. These are the  only particulars  mentioned in  the  petition  with respect to the offer of bribe which is the subject-matter of issue No.  7. In  the course of the evidence. however, a new fact  was   sought  to   be  introduced  by  the  contesting respondent, namely,  that P  Ws. 29  & 33  returned  to  the B.S.S. Building  after the contesting respondent refused the offer of the appellant and then the two witnesses P.Ws. 29 & 33 narrated  the entire incident to P.W. 34 Mustafa and P.W. 22 Ramachandraiah  and others.  This fact  was introduced in order  to   lend  corroboration   to  the  evidence  of  the contesting respondent  and that  of P.Ws.  29 and 32. But as this was  undoubtedly a material particular or an additional fact pertaining  to the  averments in  paragraph 12  of  the election petition and the same not having been mentioned has to be  completely excluded  from  consideration.  We  shall. however. dilate  on  this  matter  when  we  deal  with  the evidence led by the contesting respondent on this point.      In short,  therefore, the  story regarding the offer of bribery and  the occasion for it may be conveniently divided into three stages: Stage No. 1.      This stage  starts with  the decision  of  the  Central Election Committee,  Delhi, in giving the Congress ticket to the contesting  respondent and  as consequence  there of his arrival at  Hyderabad  on  February  2,  1972.  On  reaching Hyderabad the contesting respondent 455 who is  P.W. 16  received a  telephone call from Mustafa who was asked  to go  to Gooty  on February  4, 1972 in order to meet the  contesting respondent.  Accordingly the contesting respondent reached Gooty on February 4, 1972 and accompanied by P.Ws.  29 and  33 left  for the Taluk office. This is the end of  the drama  enacted in  Stage No.  I. The  facts  are proved by  P.W. 16  the contesting  respondent  himself,  by Mustafa P.W.  34 and by P.Ws. 29 and 33. It may be mentioned here that  all the  witnesses examined  to prove  the  facts covered by  this stage  are  interested  witnesses  who  are staunch supporters  of the  contesting respondent  and there appears to  be a  serious discrepancy in the evidence led on this point.  It appears  from the  evidence  that  when  the contesting respondent  reached B.S.S.  Building  apart  from P.Ws. 29 and 33, P.Ws. 34 and 22 were also present. P.Ws. 34 and 22  however did  not accompany the contesting respondent to the Taluk office. P.W. 22 Ramachandraiah says that he did not go  tor the  Taluk office because of ill health and P.W. 34 Mustafa  says that  he did  not go as he had some work at the Railway  Station.  It  may  ’also  be  noticed  that  in paragraph-12 of  the election  petition where  the  material particulars are given by the contesting respondent, while it is clearly  mentioned that  when the  contesting  respondent reached Gooty  P.Ws. 29 & 33 were there, the name of P.W. 22 is not  specifically mentioned as being present at Gooty. It would appear  from the  evidence of  P.W. 22  that he  was a great friend  and supporter of the contesting respondent and even the  learned Judge  has commented  on the deep interest which P.W.  22 had shown in order to support the case of the contesting  respondent.   It  is,  therefore,  difficult  to believe that  if P.W.  22 would  have been  present  at  the

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B.S.S. Building  how could  the contesting  respondent  have omitted to mention the name of his most confident friend and supporter in  paragraph-12 of  his election  petition.  This taken together  with the  fact that P.W. 22 had given a lame excuse for  not having accompanied the contesting respondent to the  Taluk office clearly throws a considerable amount of suspicion on the presence of P.W. 22 at Gooty on February 4, 1972. Similarly,  while P.W.  34 Mustafa  gives  a  specific reason why  he had not accompanied the contesting respondent to the  Taluk office.  namely, that  he had some work at the Railway Station,  which  is  also  deposed  to  by  P.W.  16 himself, yet this fact which was within the knowledge of the contesting respondent  at that very time is not mentioned in the election  petition. Another  important circumstance that has to  be noticed  is that whereas in the election petition it is the definite case of the contesting respondent that he had to  go to  Gooty on  February 4,  1972  for  filing  his nomination papers  the evidence  shows that the did not file the nomination  papers at  all on  that date  but he  merely applied for  the voters  list of  the constituency.  This is important, because,  while it  may have  been  relevant  for P.Ws. 29  & 33 to accompany the contesting respondent to the Taluk office if it was the question of his filing nomination papers, their  presence at  the Taluk  office was not at all necessary if  the contesting respondent had merely to take a copy of  the voters  list which  could have been done by him alone.      P.W. 16  the contesting  respondent has no doubt proved the facts  mentioned above.  Similarly P.W. 34 has supported the contesting 456 respondent regarding  his having  a talk with the contesting respondent on  the telephone  and his  being asked  to go to Gooty on  February 4,  1972. P.Ws.  29 and 33 have also said that they  were asked by P.W. 34 Mustafa to accompany him to Gooty in  order to  meet the  contesting respondent. Thus so far as  the facts in stage No. I are concerned, whether they are true  or not, they do not appear to be very relevant for the purpose of issue No. 7. Stage No. 11      This brings  us to stage No. 2 which is the bulwark aud the  bedrock  of  the  case  of  the  contesting  respondent regarding the  offer of  bribe said to have been made by the appellant to  him. So ar as this stage is concerned the only evidence that  the contesting  respondent has given consists of the  testimony of  P.Ws. 29  and 33  apart from  his  own evidence. We  would first deal with the evidence of P.Ws. 29 and 33  before coming  to the  evidence  of  the  contesting respondent himself.  P.W. 29 Nabi Saheb appears to be one of the  most  interested  witnesses  and  a  great  friend  and supporter of  the contesting respondent. He admits at p. 498 of the  Paper Book  (Vol. Ill)  that both  the  witness  and Mustafa P.W.  34 worked for the contesting respondent during the recent  general elections.  He then  says  that  Mustafa approached him  on February 3, 1972 and requested him and W. 33 Chinna  Bhemanna to  accompany him  to Gooty. The witness further admits  that the contesting respondent R. Sultan and he had been friends for the last ten years. A suggestion was given by  the  appellant  that  his  younger  brother  Khaja Hussain was  godown keeper  of the B.S.S. at Guntakal and he was arrested  on the  charge of  sling goods  and  that  the contesting respondent  Sultan had  helped him.  The  witness admits at  p. 501  of the  Paper Book  (Vol. III)  that  the police had  no doubt  arrested his younger brother who was a Godown Keeper  of the  B.S.S. and he further admits that the

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case was later shown out. He, however, denied the suggestion that Sultan  helped his brother. It is, however, admitted by Sultan P.W. 16 at p. 307 of the Paper Book (Vol. II) that he was  the  Secretary  of  the  B.S  S.  and  was,  therefore, obviously in  a position to help the brother of the witness. In these  circumstances, therefore, to begin with, the Court has to approach the evidence of this witness with great care and caution  because be  was not  only a close friend of the contesting respondent, but was also his supporter and worker and he was interested in giving evidence which may result in the election of the appellant being set aside He states that when the  contesting respondent  decided to  go to the Taluk office  on  February  4,  1972,  P.W.  34  Mustafa  did  not accompany the  party because he had some work at the Railway Station with  the result  that P.W.  33 and the witness only accompanied the  contesting respondent.  The witness further stated that  he accompanied the contesting respondent to the Taluk office  but P.W. 33 Ramachandraiah stayed behind as he was not  keeping good health. Thereafter when the contesting respondent came  out of  the Taluk  office  the  party  went towards the  place where  the car was parked when on the way the  appellant   met  them   and  greeted   the   contesting respondent. There  the appellant is said to have offered Rs. 25,000/- if  the contesting respondent agreed not to contest the election. Sultan laughed and 457 spurned the  offer. The  witness  as  also  P.W.  33  Chinna Bheemanna told  the appellant  that  Sultan  the  contesting respondent did  not require  the money,  when the  appellant repeated the  offer which  was again refused. Thereafter the party  returned   to  the  B.S.S.  Building  where  P.W.  22 Ramachandraiah and  P.W. 34  Mustafa and others were waiting in the  office of  the B.S.S.  Both the  witness and P.W. 33 narrated the  incident relating  to the  offer of  bribe  to Mustafa P.W. 33 and Ramachandraiah P.W. 22.      P.W. 33  Chinna Bheemanna  who is the other witness has narrated  more  or  less  the  same  facts  regarding  their reaching the  B.S.S. Building  at Gooty,  their accompanying the contesting  respondent to the Taluk office, the offer of bribe made  by the  appellant and the narration of the facts to P.Ws.  22 and  34. P.W.  16 the contesting respondent had also deposed to these facts. C      The learned  Judge has  accepted the  evidence of these witnesses  because  he  thought  that  there  was  no  major discrepancy in  the testimony  of these  witnesses.  Further more, the  learned Judge,  has, on  a consideration  of  the evidence of  P.Ws. 23,  38, 39  and 41,  held that  both the contesting respondent  and the  appellant  were  present  at Taluk office  on February 4 1972 near about 12 Noon and from their presence he appears to Lave presumed that the offer of bribe must  have been made. We are, however, unable to agree with this  somewhat unusual  process of  reasoning. The mere fact  that  the  contesting  respondent  and  the  appellant happened to  be present  at the  Taluk office on February 4, 1972, at  about the  same time  does not necessarily lead to the inference that the appellant must have made the offer of bribe which  is quite  a different fact and has to be proved separately and independently. Indeed if one has to wander in the domain  of conjectures,  then it  can be equally said of the contesting respondent that the presence of the appellant at the  same day  and time at the Taluk office furnished him an occasion  to concoct and bolster up a case of the alleged offer of bribe by the appellant to the contesting respondent and  in  order  to  prove  this  allegation  the  contesting respondent had no difficulty by enlisting the support not of

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any independent  witness but  his own  stooges hirelings  or friends and  supporters. While, therefore, we agree with the finding of  the learned  Judge that  the appellant  and  the contesting respondent  were no  doubt present  at the  Taluk office on  February 4,  1972 it  by no means follow that the story of the offer of bribe is true on this ground alone. In fact the  learned counsel  for the  appellant also  has  not disputed the  fact that  the contesting  respondent  or  the appellant were  actually present  in  the  Taluk  office  on February 4,  1972 at  the relevant  time- a  fact  which  is proved by  independent witnesses  and documentary  evidence. What the learned Judge has overlooked is the fact that while it is-very  easy to make an allegation of an offer of bribe, it is  very  difficult  for  the  person  against  whom  the allegation is made to rebut the same. The learned Judge also failed to  consider that  the actual  offer alleged  to have been made  by the appellant to the contesting respondent has been proved  only by  the  partisan  and  highly  interested testimony of  P.Ws.  29  and  33  which  was  sought  to  be corroborated by equally interested testimony of P.Ws. 22 and 34, and  no attempt  was made  to  examine  any  independent witness even 458 though the  evidence was  that at the B.S.S. Building, apart from P.Ws. 22 and 34 other persons were also present. So far as P.W.  29  is  concerned  we  have  shown  that  he  is  a thoroughly interest  ed witness  being a close friend of the contesting respondent.  P.W. 33  Chinna Bheemanna  is also a partisan witness.  He admits  that he was a worker of Sultan during the  last elections.  He further  admits at p. 536 of the Paper  Book (Vol.  III) that  he tried to procure the B’ evidence of  one Sunkanna  for the  contesting respondent in this respect. The witness deposed thus:           "Sultan asked  Sunkanna to  come and give evidence      in this  case. Yesterday  when  I  was  coming  here  I      approached Sunkanna. But at that time he was not in his      house. Then  I sent  another person  to Sunkanna asking      him to come to Hyderabad to give evidence."      This shows  the extent to which the witness could go in order to  support the case of the contesting respondent. The witness further  admits that  he was  a member of the B.S.S. and therefore a colleague of Sultan. It seems to us that the evidence of P.Ws. 16, 29 and 33 regarding the offer of bribe in  the   circumstances  mentioned  by  them  is  inherently improbable. In  the first  place it  would appear  from  the topography of the spot where the talk between the contesting respondent and the appellant took place that the place was a crowded one  and was  situated in  the heart  of  the  Taluk office surrounded by the District Munsif Court. According to P.W. 16  apart from  the District  Munsif’s Court there were four other  offices in  that compound  and that  there was a crowd near  the District Munsif’s Court. He also admits that there was  a canteen  in between  the Taluk  office and  the District Munsif’s court where people were sitting. Similarly P.W. 29 has admitted that the canteen was situated only at a distance of  10 to  15 yards  from the  place where the talk regarding the  offer  of  bribe  took  place  and  that  the District Munsif’s  Court  was  at  some  distance  from  the canteen. He  also admits  that the litigant public sit under the trees  near the Munsif’s Court. The distance between the Munsif’s Court  and the  place where Sultan’s car was parked would be about 30 to 40 yards. In view of these surroundings it is  most unlikely  that the appellant would make an offer of bribe  to the  contesting respondent  in such an open and crowded place  where he  could be  exposed by  Sultan at any

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time. The  offer of bribe was undoubtedly a criminal act and the Munsif’s  Court being near at hand , the appellant would have faced  a grave  risk in  making such  an offer. Further more,’  it   appears  that   the  appellant  was  not  fully acquainted with  Sultan the contesting‘ respondent though he may have  seen him  once or  twice. No one makes an offer of bribe to  strangers without  knowing their reaction. Further more, it  is impossible to believe that even if the offer of the bribe  is made  it would  be made in the presence of the witnesses who  were accompanying  Sultan so  that the person who makes  the offer  of bribe  would  be  a  party  to  the creation of  clear evidence  against him.  It is  absolutely against the normal and prudent human conduct to make such an offer at  a  crowded  place  in  the  presence  of  the  two witnesses who  were  known  to  be  the  supporters  of  the contesting respondent  and persist  in making  the offer  in site of  the blunt  refusal of  the same  by the  contesting respondent. On  the other  hand the  natural conduct  of the appellant would have 459 been to  take the  contesting respondent  to a secluded spot where he  A would not be seen or heard by any body’ and then make the  offer. In  fact P.W.  16 clearly suggests that the appellant had  taken him  aside but  he says  that the other witnesses did not part with his company and also came’ there and yet  the appellant  did not object to their presence. We find it  difficult to  believe that the offer of bribe would be made by the appellant in these circumstances. The learned Judge, however,  has tried to draw an artificial distinction between an  offer of bribe and a payment of actual bribe. He seems to  think that whereas an offer of bribe could be made in a  crowded place  in the  presence of the witnesses as no money was‘to be passed, yet when actual payment of bribe was to be  made it  should have  been done  in a secluded place. This  reasoning   of  the   learned  Judge  is  not  at  all intelligible to  us. Under the provisions of s. 123(1)(A) of the Act  an offer  of bribe  or payment  of actual bribe are both electoral offences amounting to corrupt practices which are to be visited with similar consequences. The offences of an offer  of bribe or of actual payment of bribe were of the same nature and it cannot be said that one is a lesser crime and the  other is a graver one. Neither the criminal law nor the election statute seek to draw any distinction between an offer  of  bribe  or  actual  payment  of  bribe.  In  these circumstances, therefore, whether it is an offer of bribe or it is  a payment  of  actual  bribe,  normal  human  conduct requires that  if a person intends to commit such an offence he would  not do so in a crowded place but would try to find out a secluded spot so that complete secrecy is maintained.      Another important circumstance that makes the story put forward  by  the  witness  regarding’  the  offer  of  bribe absolutely incredible  is the  absence  of  any  genesis  or occasion for  the presence  of the  witnesses at  the  Taluk office or  for that  matter for  accompanying the contesting respondent Sultan to the Taluk office. To begin with we have already indicated  that  in  paragraph-12  of  the  election petition the  main purpose  of the  visit of  the contesting respondent Sultan  to the  Taluk  office  was  to  file  his nomination papers.  Indeed if  this was  the purpose  of his visit one could have understood the significance of Sultan’s asking his  supporters accompanying  him to the Taluk office because the  filing of  nomination papers is one of the most important and momentous steps in the electoral process. From the evidence  of the  witnesses as  also that  of Sultan the contesting respondent it is clear that Sultan did not at all

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go to  the Taluk  office  for  the  purpose  of  filing  his nomination papers  but had  only applied  for a  copy of the voters list:  For this  purpose the presence of P.Ws. 29 and 33 was  not at all necessary. Even P.W. 29 says at p. 502 of the Paper  Book (Vol.  III) that Sultan had told the witness that he was going to the Taluk office to purchase the voters list. Further  more, even  though the  witnesses accompanied Sultan they  do not  appear to have given him any worthwhile assistance Both  P.Ws. 29  and 33  categorically state  that they did  nothing at  all at the Taluk office except sitting in the verandah. P.W. 29 states as follows:           "We sat  in the front verandah of the Taluk office      along with  Sultan. With  whom Sultan spoke and what he      did in the Taluk office, I do not know." 460 It would,  therefore, be  clear from  the evidence  of  this witness that  except for  sitting in  the verandah there was absolutely no  occasion for  their  presence  at  the  Taluk office, nor  there was  any earthly reason why Sultan should have taken them to the Taluk office except for the fact that he- wanted  them  to  witness  the  offer  of  bribe.  This, however, could not be possible, because there was nothing to show that  Sultan knew  before hand  that he  would meet the appellant at  the Taluk  office and that the appellant would make an offer of bribe to him. This circumstance, therefore, which is  in some  variance from  the allegation made in the pleadings smacks  of a  concoction and throws a good deal of doubt on  the presence  of these  two witnesses at the Taluk office. We have already indicated’ that both P.Ws. 29 and 33 are thoroughly  interested witnesses.  P.W.  33  apart  from being a  worker of Sultan is a member of the B.S.S. Of which the contesting respondent Sultan is the Secretary.      The only other witness so far as the facts in Stage No. II are  concerned  is  P.W.  16  the  contesting  respondent himself. P.W  16 is  the most  interested witness  who  also bears serious animus against, the appellant. It would appear from his  evidence that  the appellant held, at the instance of one K. Suryanarayana Reddi, filed a complaint against the contesting respondent  for cheating  and that the contesting respondent had  filed a  petition  in  the  High  Court  for quashing the 3, investigation in pursuance of the complaint. He further  stated that  , he  had  also  filed  a  criminal complaint against  Suryanarayana Reddi  in the  Magistrate’s Court at  Gooty and.  P.Ws. 22  and 29  had  been  cited  as witnesses in that case. Apart from the animus, it would also appear that  P.Ws. 22  &  29  are  stock  witnesses  of  the contesting respondent  to be  utilised wherever and whenever necessary. Further more, P.W. 16 narrates an incident at the Travellers Bungalow  at Anantapur  which happened before the general  elections   of  1972  in  the  presence  of  Challa Subbarayudu,  where   again  the  appellant  seems  to  have requested him not to contest the elections. This fact is not mentioned in the election petition at all and it seems to us that it  has been  concocted  for  the  first  time  in  the evidence of P.W. 16 in order to give credence to his version that the appellant had made an offer of bribe.      Another inherent  improbability in the version given by P.W. 16  and P.Ws.  29 &  33 regarding the offer of bribe is that the  appellant i  himself was aspiring for the Congress ticket and  was therefore fully conscious and aware that the influence that  the Congress party wielded and the resources it  possessed.   He  was  also  aware  that  the  contenting respondent Sultan was a Congress nominee having been granted the Congress ticket by the Central Election Committee and he had, therefore,  the support of such a big party behind him.

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Would he,  under these  circumstances ever  dare to think of making an  offer of bribe and that too at a crowded place in the presence  of the  witnesses,  of  all  persons  to‘  the contesting respondent  and persist  in that offer even after the same was refused by the contesting respondent. These two circumstances appear  to introduce  an element  of intrinsic infirmity in  the evidence  led by the contesting respondent on this  point and the story appears to us to be too good to be true. 461      Another important  circumstance that makes the story of the contesting.  respondent on  this  point  improbable  and untrue is  the fact  that the  appellant should have made an offer of  bribe as  early as  February 4, 1972. According to the evidence  the last date for filing nomination papers was February 8,  1972 and  for withdrawal was February 11, 1972. If the  appellant had succeeded in persuading the contesting respondent  to  accept  his  offer  and  withdraw  from  the Contest, even then that would not have served the purpose of the appellant  because with  the  resourcefulness  that  the Congress party  possessed it  could have  set up  any  other nominee immediately  who would  have  filed  the  nomination papers  by   February  8.  In  these  circumstances  if  the appellant was  really bent  upon  seeing  that  no  Congress candidate entered  the field he would have made the offer of bribe, if  any, either  on February  7, 1972  or February 8, 1972, so  that no  chance was  given to any party to sponsor any other candidate.      Lastly the  conduct of  the contesting  respondent is a clear pointer to the incredibility of the version propounded by him  and his  witnesses on  this point. Assuming that the version given  by the contesting respondent is true, then it was a  very serious  matter so  far as  the prestige  of the Congress  party  was  concerned.  By  offering  bribe  to  a Congress  nominee  the  appellant  had  sought  to  throw  a challenge to the party itself. In his election petition P.W. 16 has also mentioned the fact that the appellant had thrown a challenge  on his  refusal that  he would  be defeated. It would appear  from the  evidence of P.W. 22 at p. 428 of the Paper Book  (Vol. III)  that after  returning from the Taluk office and  having lunch,  the witness, Sultan and Mustafa r went to  Anantapur. It would appear from paragraph-12 of the election  petition  that  the  District  Congress  Committee office is  situated at  Anantapur. P.W. 29 also states at p. 500 of  the Paper Book (Vol. III) that P.W. 22, Mustafa P.W. 34 and  Sultan left  for Anantapur.  P.W.  34  Mustafa  also states at  P. 548 of the Paper Book (Vol. III) that when the incident about  the offer  of bribe  by  the  appellant  was narrated to  him he  said that it was monstrous to sell away the Congress  ticket. Indeed if this was the feeling of P.W. 16 and his supporters, then it is impossible to believe that had the  offer been  made by  the appellant  at Gooty either Sultan or  his supporters would not make a complaint of this serious incident  to  any  of  the  office  bearers  of  the District Congress  Committee at Anantapur, particularly when they went  to Anantapur  soon after the incident from Gooty. The fact  that no such report or information was sent to the District Congress  Committee at Anantapur or any where else, throws a  mountain of  cloud of  suspicion and  doubt on the version  put  forward  by  the  contesting  respondent.  The learned  Judge  has  noticed  some  of  the  improbabilities mentioned above  but not  all of  them  and  seems  to  have brushed them  aside  on  trivial  grounds  and  has  readily accepted the evidence of- the P. Ws merely because there was no major  discrepancy in  the evidence  of the witnesses. In

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our opinion,  the approach made by the learned Judge was not correct. If  the broad probabilities and the unusual conduct of the  contesting respondent and the witnesses rendered the version presented by them unbelievable or doubtful, then the Court could not refuse to take notice of such 15-522SCI/76 462 circumstances.  For   these  reasons,   therefore,  we  find ourselves unable  to agree  with the  learned Judge that the offer of  bribe at  Gutty Taluk office as alleged by P.W. 16 and P.Ws.  29 &  33 was made by the appellant to P.W. 16. We therefore disbelieve  the facts  sought to  be proved by the contesting respondent in Stage No. II.      This bring  us to  the last  scene of the drama, namely Stage No. Ill. According to the contesting respondent, after the offer made by the appellant to the contesting respondent was refused  by him  in the  Taluk  office,  the  contesting respondent along with P.Ws 29 and 33. returned to the B.S.S. Building at  Gooty.. On  return to  the B.S.S. Building they found P.Ws.  22 Ramachandraiah  and P.W.  34 Mustafa  there. According to  P.Ws 29 and 33 the witnesses were laughing and when they  were asked  by P.Ws.  22 &  34 they  narrated the entire incident  which had  happened at  the  Taluk  office. According to P.W. 16, however, when he arrived at the B.S.S. Office after  his visit  to the  Taluk office P.Ws 22 and 34 asked him as to what is the news, and instead of replying to them P.Ws  29 &  33 narrated  the incident which happened at the Taluk  Office, namely, the offer of the bribe. P.Ws 29 & 33 have,  however, given  a slightly  different version. But what is  most extraordinary in this incident is that whereas in ordinary  circumstances we would have expected Sultan the contesting respondent  himself who was the hero of the whole show and to whom the offer of the bribe had been made by the appellant to  narrate the  facts to his friends P.Ws. 22 and 34, but  instead of  that Sultan  remained absolutely silent and P.Ws.  29 &  33 were  assigned the  role  of  doing  the talking. This conduct of the contesting respondent is not at all understandable.  Again there  does not  appear to be any good reason  why P.W.  22 Ramachandraiah and P.W. 34 Mustafa were  left  behind  and  not  taken  to  the  Taluk  office. According to  P W.  22 he  did not go because of ill health. This appears  to us  to be  a figment of his imagination. If P.W. 22  in spite  of his  ill health could come all the way from his  house to  the B.S.S. Office and waited there right from morning until the afternoon, there was no reason why he should not have accompanied the contesting‘respondent to the Taluk office.  P.W. 34  gives a lame excuse that he had some work at  the Railway  station and,  therefore, he  could not accompany the party to the Taluk office. It seems to us that as the allegation regarding the offer of bribe was a totally untrue one  and no  independent witnesses  would  have  been prepared to  support this version, the contesting respondent hit upon  a  plan  to  prove  this  allegation  through  his supporters and friends by making two of them to overhear the alleged offer  of bribe  and the other two namely P.Ws. 22 & 34 to  remain at the B.S.S. Office to hear the narration of- the  said   offer  and   thereby  produce   a  corroborative evidence.‘ otherwise  we do  not see  any earthly reason why P.W. 34  Mustafa who was playing a leading part in the drama enacted on  February 4,  1972 and  who was  responsible  for getting the  programme from  the contesting  respondent  and collecting his  other  friends  at  Gooty  should  not  have accompanied the contesting respondent to the Taluk office in order to  help him  in getting  the forms and stayed away on the lame  excuse that  he  had  some  work  at  the  Railway

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Station. It appears to us that according 463 to the evidence of P.W. 16 as also the averments made by him in the  election petition  P.W. 34 Mustafa was taking a very prominent part  in the  affairs of the contesting respondent on his  return to  Hyderabad. It  was he  who telephoned the contesting respondent,  brought  his  companions  to  Gooty, stayed at  Gooty and  accompanied the  contesting respondent and others  to Anantapur,  and yet  he did not accompany the contesting respondent  to the  Taluk office.  It seems to us that P.Ws.  22 &  34 were  deliberately made  to stay at the B.S.S. Office  so 4  as to corroborate the story put forward by P.Ws.  16, 29  and 33 being persons to whom the story was immediately narrated.  Apart from this there does not appear to be any object for keeping these two persons at the B.S.S. Office.      Finally the  evidence shows that apart from P. Ws. 22 & 34 there were other persons present at the B.S.S. Office but none of  them has been examined to support the version given by P.Ws. 22 & 34. These two witnesses were close friends and supporters of  P.W. 16  and their evidence would not inspire any confidence.  So far  as P.W.  22 is  concerned he admits that he  worked for  the election  of Sultan  at  Gooty  and supported the  Congress party.  He further  admits that   he toured  various  villages  with  Sultan.  He  was  also  the counting agent of Sultan having been appointed by him as per Ext. A-18.  He was  also an  employee of  the B.S.S. and had been appointed  by Sultan.  Sultan was the Managing Director of Brim Stone Rubber Products Ltd. The witness was a partner of the  firm which  had the  sole agency for the products of the aforesaid  firm. Apart  from that  the witness  admitted that he  was a  staunch supporter  of the Congress. Even the learned Judge  has clearly  observed that  this witness  was keenly interested  in the  future  of  Sultan  and  in  this connection, while  dealing with  issue No.  8,  the  learned Judge observed as follows:           "Because of  the great  enthusiasm shown  by  this      witness (P.W.  22)  in  the  witness-box  while  giving      evidence on  be half  of the petitioner, which is still      fresh in my mind, I am unable to accept the evidence of      this witness as disinterested evidence." The learned Judge, however, appears to Have readily believed the evidence  of this  witness on issue No. 7 forgetting the scathing remarks  which he himself had made on the demeanour of this witness with  regard to the issue No. 8.      Similarly P.W. 34 Mustafa is also an equally interested witness and  admits that  he worked  for the Congress and he had been  a friend  of Sultan  for ten years. He also admits that he had worked for Sultan even in the 1962 elections. In these circumstances,  we are unable to place any reliance on the evidence of this witness.      In fact  if the  evidence of  P.Ws.  16,  29  &  33  is disbeileve do  the question  of the offer of bribe, then the evidence of  P.Ws. 32 & 34 also falls automatically, because if there  was no  offer of  bribe there  was nothing  to  be narrated to  these witnesses.  Finally, the  most  important ground on  which the  evidence of these two witnesses has to be completely  excluded is  the fact  that  P.Ws.  29  &  33 narrated the incident 464 to these  two witnesses which is undoubtedly a very material particular and  it is conspicuous by its complete absence in paragraph-12 of  the election  petition where  the facts  on which issue  No. 7  was framed  have been pleaded. The facts deposed to  by P.Ws.  22 and  34 are  not merely a matter of

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evidence but  a very  important  material  particular  which seeks to corroborate the interested evidence of P.Ws. 16, 29 & 33  and it is difficult to believe that had this been true the contesting  respondent would  not have  cared to mention this fact  in his  petition. In  This connection  it may  be interesting to  note  that  P.W.  16  has  admitted  in  his evidence at  p. 303 of the Paper Book (Vol. II) that on 15th or 16th  of March,  1972 the Returning officer had suggested to the contesting respondent to file an election petition if he was  defeated and  since  then  the  witness  was  making enquiries  to   collect  material  for  filing  an  election petition.  If   this  was   really  so  and  the  contesting respondent was  careful enough  to gather the materials long before he  filed his  election petition,  it is difficult to comprehend that  he would  make no mention of this important fact in his petition.      Lastly the contesting respondent states in his evidence at p. 304 of the Paper Book (Vol. II) that in respect of the threats said  to have  been administered by the appellant on 5th or 6th of March, 1972, he had drawn the attention of the police-officer and  had contacted  the Deputy Superintendent of Police  of Guntakal.  Indeed if the contesting respondent was so vigilant would he not have drawn the attention of any police officer  of Gooty  to the  offer of bribe made by the appellant or  the threats  or challenge thrown by him to the contesting respondent ?      In view  of  the  improbabilities  and  the  compelling circumstances mentioned above, we are clearly of the opinion that the  contesting respondent  has not  been able to prove his allegation  regarding the  offer of  bribe made  by  the appellant to  the contesting  respondent at the Taluk office as alleged  by him  beyond any  shadow of doubt. The learned Judge has  observed that as against the evidence produced by the contesting  respondent there  is a  bare denial  by  the appellant. The  learned Judge  seems to  have laid stress on the words that the appellant alone has denied the allegation and seems  to suggest that he has not examined any witnesses in support  of the  denial.  The  learned  Judge  failed  to appreciate that  according to P.Ws. 16, 29 & 33 there was no one else  at the  time when the appellant had made the offer of  bribe   to  the  contesting  respondent  excepting  four persons, namely, P.W. 16 Sultan, P.W. 29 Nabi Saheb, P.W. 33 Chinna  Bheemanna  and  the  appellant.  The  three  persons deposed in support of the story of the contesting respondent and the appellant was, therefore, left alone who  denied the story completely.  It could not be expected of the appellant to concoct or procure witnesses when there could be none. As the offer  of bribe  was an electoral offence amounting to a corrupt practice  which partakes of a quasi-criminal nature, the onus was initially on the contesting respondent to prove this fact.  As the contesting respondent has failed to prove this fact. he must fail.      Indeed if  such serious  and momentous allegations made against successful  candidate are  allowed to  be proved  by interested and  partisan evidence  as in  the  present  case without any corroboration and where 465 the evidence  adduced is  highly improbable  and unworthy of credence, it  would give  an easy  handle  to  any  defeated candidate to  unseat a  duly elected candidate by collecting evidence  of   his  friends   and  supporters   which   will undoubtedly destroy  the very  sanctity and  purity  of  the electoral process.  Thus in view of the cumulative effect of the compelling  circumstances, the  inherent improbabilities me intrinsic  infirmities and ;‘ the unnatural human conduct

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disclosed  by   the  evidence  produced  by  the  contesting respondent leads  us to  the inescapable conclusion that the contesting respondent  has failed to prove the allegation of the offer  of bribe which is the subject-matter of issue No. 7 beyond  any shadow  of doubt.  Therefore issue  No.  7  is decided against the contesting respondent and the finding of the learned  Judge in favour of the contesting respondent on issue No. 7 is set aside.      This bring us now to the discussion of issues Nos. 26 & 27, the  only other issues which remain to be decided in the present appeal. Issues Nos. 26 and 27 may be extracted thus:           (26) "Whether  the 1st  respondent (the appellant)      committed a corrupt practice under section 123 (3-A) of      the Representation  of the  People  Act  by  issuing  a      pamphlet dated  20-2-1.972 to create ill-feelings among      the voters  on religious  D grounds  and if  so, has it      materially affected the result of the b election of the      petitioner  as  stated  in  para  39  of  the  Election      Petition ?"           (27) "Whether  the said  persons  distributed  the      pamphlet with  the consent  of the  1st respondent (the      appellant) ?"      The facts  comprising issues Nos. 26 & 27 are mentioned in paragraph-39  of the  election petition and relate to two separate and independent allegations-(1) The distribution of objectionable pamphlets  of the  nature of  Ext. A-l,  which contained communal  propaganda and  sought to  persuade  the voters to vote on purely communal grounds, personally by the appellant to  various persons  in various  villages; and (2) the distribution of such pamphlets by the workers and agents of the  appellant with  his consent  to a  number of persons belonging  to   a  large   number  of  villages.  It  would, therefore, be  seen that  the two  types of  allegations are essentially  different  and  cannot  be  said  to  form  one composite allegation.  We have  adverted to  this aspect  of tile matter  because Mr.  Basi Reddy  for the  appellant has vehemently con  tended before us that no foundation has been laid by  the contesting  respondent in his election petition regarding the  distribution of  the pamphlets by the workers and agents  of the appellant as indicated in item (2) supra. It was  further contended  that this  matter does not merely constitute a  material particular  of a  specific fact which should have been mentioned in the petition but is a separate item of  fact itself  and as  there is no allegation to this effect in  the election petition the same should be excluded from consideration  and the evidence given by the contesting respondent on  this point  must be  completely ignored.  The learned counsel  for the  contesting respondent,  how  ever, sought to  repel this  argument on  the ground  that a broad construction  of   the  petition  filed  by  the  contesting respondent would 466 clearly show that sufficient foundation has been laid in the petition for these allegations which were later amplified by giving the  material particulars  after the  application for amendment  of  the  petition  was  made  by  the  contesting respondent before  the High Court. In these circumstances we would like  to dispose  of the  contention of the parties on this point before proceeding to the merits of issues Nos. 26 & 27.      In paragraph-39  of the  election petition, as it stood before the amendment, the contesting respondent alleged that the appellant  had issued a pamphlet dated February 20, 1972 in furtherance  of his  election prospects  and the pamphlet issued was distributed among the voters throughout the Gooty

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Assembly constituency  which caused  ill feelings  among the voters on  Religious grounds. It was further alleged that by distributing the pamphlet the appellant indulged in creating hatred and ill-feelings among the voters in the constituency and there  fore committed  corrupt  practice.  In  order  to understand the  import of the allegations made in paragraph- 39 of  the petition  it may  be  necessary  to  extract  the relevant part of it thus:           "39. The  petitioner states  that  1st  respondent      (the appellant) issued a pamphlet dated 20-2-72 for the      furtherance of  his-election prospects and the pamphlet      issued and distributed among the voters ‘throughout the      Gooty Assembly. Constituency has caused lot of set back      and  it   created  ill-feelings  among  the  voters  on      religious grounds.  He criticised  the Muslim voters on      religious and  communal lines.  *  *    The  petitioner      received several  complaints in  the village  that  the      pamphlet issued  and distributed  by 1st respondent has      caused feelings  of enmity,  hatred between  Hindus and      Muslims and  this  has  created  disharmony  among  the      voters. * *  The pamphlet issued and distributed by the      Ist respondent is herewith enclosed as annexure No. 5." We have  underlined the  portions on which we propose to lay particular emphasis.  It would  be seen  from the perusal of the allegations  made in  paragraph-39 extracted  above that there is  absolutely no averment that the pamphlet issued by the appellant  was distributed  by the  agents,  workers  of supporters or  friends  of  the  appellant.  The  only  fact averred in pagagraph-39 of the petition is that the pamphlet in question  was distributed  by the  appellant alone.  This fact is  clearly evident  from the  portions  extracted  and underlined by  us. In  these circumstances  it  was  rightly contended by  the learned  counsel for  the  appellant  that there was  no pleading  at all  by the contesting respondent that the  pamphlet was distributed by his agents, workers or supporters and  therefore the  particulars supplied  by  the contesting respondent  in his  application for  amendment on this point  must be  completely  disregarded.  In  order  to appreciate this  contention it  may be  necessary to examine the concerned  provisions of  the Act. Section 81 of the Act clearly provides  that the  election petition shall be filed within forty-five  days from  the date  of election  of  the returned candidate and runs thus: 467           "81. (1)  An election petition calling in question      any election  may be  presented on  one or  more of the      grounds specified in sub-section (1) of section 100 and      section 101  to the High Court by any candidate at such      election or  any elector  within forty-five  days from,      but not  earlier than,  the date  of  election  of  the      returned candidate,  or if  There  are  more  than  one      returned candidate  at the  election and  the dates  or      their election  are different,  the later  of those two      dates." It is  obvious, therefore,  that any  allegation of  corrupt practice which  is not  made in  the election petition filed within the  time allowed by the statute cannot be allowed by way of  an amendment under s. 86(5) of the Act, because that would  amount   to  extending   the  period   of  limitation peremptorily fixed  by the  Act. Power  of amendment  of the election petition  as contained  in s.  86(5) of  the Act is clearly confined  to allowing the particulars of any corrupt practice which  has been  set out  and clearly  alleged  and specified in  the election petition. Subsection (5) of s. 86 of the Act runs thus:

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         "The High  Court may,  upon such terms as to costs      and otherwise as it may deem fit, allow the particulars      of any  corrupt practice  alleged in the petition to be      amended or  amplified in  such manner  as  may  in  its      opinion be  necessary for ensuring a fair and effective      trial  of   the  petition,  but  shall  not  allow  any      amendment of  the petition  which have  the  effect  of      introducing  particulars  of  a  corrupt  practice  not      previously alleged in the petition". It would  be seen that the ambit of this statutory provision is extremely  narrow so  that  the  power  of  amendment  or amplification is  restricted only  to amplify  the  material particulars  of   any  corrupt   practice  which   had  been previously alleged in the election petition. In other words, the sub-section  requires three  essential conditions  to be fulfilled before  an amendment could be allowed-(1) that the amendment seeks  merely to  amplify  the  particulars  of  a corrupt  practice;  (2)  that  the  corrupt  practice  whose particulars are  to  be  given  must  have  been  previously alleged in  the election  petition itself;  and (3) that the amendment is,  in the  opinion of  the Court,  necessary For ensuring a  fair and  effective trial  of the petition. Thus the three  conditions mentioned  above are  the sine qua non for the  exercise of  the power by the court under sub-s (5) of s.  86 of  the Act.  It is,  therefore, manifest that the Court has  no power to allow the amendment by permitting the election petitioner  to amplify  a material  particular of a corrupt practice  which is  not specifically  pleaded in the election  petition   itself  for   that  would   amount   to introducing a  new corrupt  practice after the expiry of the period of  limitation-a result  which was never envisaged or contemplated  by   the  statute.   This  matter   fell   for determination of this Court in Samant N. Balakrishna etc. v. George Fernandez  and others  etc.,(1)  where  Hidayatullah, C.J., speaking for the Court observed as follows:      (1) [1969] 3 S.C.R. 603. 468           The power  of amendment  is given  in  respect  of      particulars but  there  is  a  prohibition  against  an      amendment  which   have  the   effect  of   introducing      particulars  of   a  corrupt  practice  not  previously      alleged  in  the  petition.  One  alleges  the  corrupt      practice in  the material  facts and  they must  show a      complete cause  of action.  If a petitioner has omitted      to allege  a corrupt practice he cannot br permitted to      give particulars of the corrupt practice. *  *    *      In the scheme of election law they are separate corrupt      practices which  cannot be  said to  grow  out  of  the      material facts  related to  another person. Publication      of false statements by an agent is one cause of action,      publication of  false statements  by the  candidate  is      quite a  different cause  of action.  Such a  cause  of      action must  be alleged  in the  material facts  before      particulars may be given. One cannot under the cover of      particulars of one corrupt practice give particulars of      a  new  corrupt  practice.  They  constitute  different      causes of action.           Since a  single corrupt  practice committed by the      candidate, by  his election  agent or by another person      with the consent of the candidate or his election agent      is fatal to the election, the case must be specifically      pleaded and strictly proved. if it has not been pleaded      as part  of the  material facts,  particulars  of  such      corrupt practice cannot be supplied later on  *      *    *    *

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         If the  material facts of the corrupt practice are      stated more  or better particulars of the charge may be      given later nut where the material facts themselves are      missing if  is impossible  to think that the charge has      been made or can be later amplified. This is tantamount      to the making of a fresh petition" In our  opinion the facts of the present case and the nature of the  averment contained  in the  election  filed  by  the contesting respondent is clearly covered by the ratio of the decision cited  above. It  may be  pertinent to note that in this case  also the question is whether publication of false statements was by the candidate himself or by his agents and since what  has been pleaded is only the distribution of the pamphlet by  the appellant/candidate  alone and  not by  his agents or  workers  with  his  consent,  the  court  had  no jurisdiction to  allow particulars  to be given with respect to the  fact that pamphlet was distributed by the agents and supporters of  the appellant  to various  persons in various villages as  given in  the schedule. The learned counsel for the contesting  respondent conceded  the central weakness in this part  of the  case but  he tried to persuade us to hold that the  words "pamphlet  issued and  distributed among the voters throughout  the Gooty  Assembly Constituency" tend to include not  merely the  distribution of the pamphlet by the appellant himself  but also  by his  agents and  workers. We are, however,  unable to  agree with this contention because reading the  averments contained in paragraph-39 as a whole, however the  broadly or liberally the same may be construed, the irresistible 469 inference is that the contesting respondent has laid special stress on  the fact  of distribution  of the pamphlet by the appellant alone.  At least  at three places underlined by us in the extracted. portion of the pleadings of the contesting respondent  he   has  over-emphasized   the  fact  that  the distribution of  the pamphlet  was made by the appellant him self. Wherever  the averment of distribution of the pamphlet is made  in the  election petition  it is said that the same was done  by the  1st n  respondent before  the High  Court, namely the  appellant. In these circumstances, therefore, we are not  in a  position to  agree with  the r interpretation sought to  be placed by Mr. Shiv Shankar learned counsel for the contesting respondent on the pleadings of the contesting respondent which in fact is not borne out by the allegations mentioned in  paragraph-39 as  extracted above.  The learned counsel for  the con  testing respondent  with fairness  and ingenuity did  not pursue  the matter  further and submitted that if  his contention  regarding the  wider interpretation which he  sought to  put is  not  accepted,  then  he  would concede that the amendment in respect of issue No. 27 should not have  been allowed  and the particulars mentioned by the contesting respondent  on this  item must be disregarded and the evidence  given by  the contesting  respondent should be excluded from  consideration. It  appears, however,  that as the attention  of the  learned Judge does not appear to have been drawn  to this aspect of the matter he allowed 11 ’ the amendment as  also the  evidence on  issue No.  27 and  also proceeded to  give his finding thereon. As, however, this is a pure  question of  law and  amounts to  violation  of  the statutory mandate  contained ill  s. 86 (5) of the Act, this Court has  to give  effect to the violation of the statutory provision. For  those reasons, therefore, we hold that there is  no  pleading  by  the  contesting  respondent  that  the pamphlet was  distributed by  the agents  or workers  of the appellant with his consent to various persons. The, order of

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the High  Court, therefore, along with the particulars given by the  contesting respondent  in item 1A in the schedule to the application  for amendment  is set  aside and  the  said amendment is  deleted from the election petition. As a legal consequence thereof  the evidence  given by  the  contesting respondent  on   issue  NO.  27  has  to  be  excluded  from consideration and  the finding of the learned Judge on issue No. 27 is hereby set aside and issue No. 27 is deleted. This disposes of  the finding  of the  High Court so far as issue No. 27 is concerned.      Before dealing  with the  facts comprising issue No. 26 it may be necessary to mention a few circumstances which may be extremely  relevant for  examining the probative value of the case  of the  contesting respondent  on this  issue. The election petition  was filed  before the High Court on April 20, 1972 i.e. about a month and a few days after the results of the  election were  announced. The  contesting respondent has clearly  admitted in his evidence at p. 303 of the Paper Book (Vol.  II) that  as far  back as March 15, 1972- he had started making enquiries and collecting materials for filing the election petition. The witness stated thus:           "All this  talk  metween  Ravindra  Choudhary  and      myself took  place at about 3-00 P.M. at the Gutti Bus-      Stand on 15th or 16th of March 1972. It was on the very      day when the 470      Returning officer  suggested to  me on phone to file an      Election Petition  that that  idea entered into my mind      to file  an election  petition in  case I was defeated.      Since then  I was  making enquiries to get material for      filing an election petition. Whenever I used to get any      information regarding  the elections,  I used  to go to      those places to make enquiry." To begin  with, therefore,  the  contesting  respondent  had started making  full and  frantic  preparations  for  filing election petition a month before he filed the same. In these circumstances it  can be safely presumed that before filling the election  petition the  contesting respondent  must have collected all  the materials  which enabled  him to give the necessary details  and material  particulars of  the corrupt practices which  he sought  to allege  against the appellant and which  formed the  bedrock of  his  case.  Against  this background therefore  we should have expected the contesting respondent  to   mention  not  only  the  corrupt  practices committed  by   the  appellant  but  also  to  give  various particulars thereof without taking recourse to the necessity of having  to  amplify  the  particulars  by  virtue  of  an amendment and  that too  when reminded  of the  same by  the appellant himself. So far as the allegations in paragraph-39 are concerned it would appear that prior to the amendment no particulars or  detail of  distribution of  the pamphlet had been mentioned by the contesting respondent at all. All that was said was that the appellant had distributed the pamphlet of a  communal nature  in order  to incite communal feelings between the  Hindus and  the Muslims.  It was  not stated to whom the  pamphlets were distributed by the appellant and on what dates  were the pamphlets distributed by the appellant, to the  villagers. Neither  the names of the villages nor of the persons to whom they were distributed were mentioned. In fact when  we deal  with the evidence on this point it would appear  that   before  filing   the  election  petition  the contesting respondent  had been  fully apprised  of the fact that the  pamphlets had  been distributed to various persons in various  villages and  yet he  failed to give any further particulars  in   the  election   petition.  Continuing  the

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historical background  of the election petition the position is that  two days  after the election petition was filed the High Court  closed for  vacation on  April 22,  1972 and re- opened on  June 10,  1972.  Even  after  the  re-opening  no attempt was  made by  the contesting  respondent to  file an application  for  amendment  nor  to  amplify  the  material particulars of  the corrupt  practices which  he alleged  in paragraph-39 of  the petition.  Strangely enough  it was the appellant who  filed an  application on  July 27, 1972, i.e. after about a month and a half later, where- r’ in he prayed to the  Court that the contesting respondent may be directed to file  better particulars  of the corrupt practice alleged by him. Even after the contesting respondent was reminded by the  appellant   through  his   application  the  contesting respondent took  full one  month to file his application for amendment which  was subsequently  allowed by  the Court. By virtue of  the  amendment  the  only  particulars  that  the contesting respondent  gave were  the names  of the villages given in  a schedule  where the  appellant  distributed  the pamphlet  and   the  dates   on  which   the  pamphlet   was distributed. In  spite of  having  been  given  a  full  and complete opportunity to disclose the essential details 471 and the  material particulars  of the  distribution  of  the pamphlet by  the A  appellant the  contesting respondent did not mention the name of a single person to whom the pamphlet had been  distributed by the appellant, whereas the evidence led by  him shows-  that some of the individuals to whom the pamphlet is  alleged to  have been  given by the r appellant had actually informed the contesting respondent of this fact well before  the election petition was filed and quite a few months before  the amendment  was asked  for.  This  belated conduct on  the part  of the  contesting  respondent  speaks volumes against the credibility of the ’material particulars which  appear  to-  have  been  given  by  him  through  the amendment.      The learned  Judge in  approaching the  veracity of the witnesses produced  by the  contesting  respondent  on  this point has  attached great  importance to those witnesses who have themselves  produced the pamphlet Ext. A-l and seems to be of  the  opinion  that  but  for  the  evidence  of  such witnesses, the  evidence of  other witnesses  who gene rally spoke about  the pamphlet  having been  given to them by the appellant should  not be  accepted. We  are, however, of the opinion, ,  that the  approach made  by the learned Judge on this aspect  of the  matter is  not legally sound. The basic fact which  had to  be deter  mined was whether the pamphlet was in  existence before  or during  the elections,  because there was  no dispute  that  the  pamphlet  was  undoubtedly printed somewhere.  If the test applied by the learned Judge was that the pamphlet should be produced by the witnesses to whom the  same was  given it  would be  very  easy  for  the contesting respondent  to hand  over  the  pamphlet  to  the witnesses before  they came  to depose  before the Court and ask them  to produce  the same  in the Court. This sort of a computerised  approach   cannot  be  a  safe  criterion  for determining the  truth of  the allegation  that the pamphlet was actually  distributed by  the appellant to the witnesses concerned.      Before going  to the evidence, we would like to discuss the law  on the  subject. Distribution  of an  objectionable pamphlet  is  undoubtedly  a  corrupt  practice  within  the meaning of sub-s. (4) of s. 123 of the Act which runs thus:           "(4). The  publication by a candidate or his agent      or by any other person, with the consent of a candidate

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    or his  election agent,  of any statement of fact which      is false,  and which  he either believes to be false or      does not  believe  to  be  true,  in  relation  to  the      personal character  or conduct  of any candidate, or in      relation to  the candidature,  or  withdrawal,  of  any      candidate, being  a statement  reasonably calculated to      prejudice the prospects of that candidate’s election."      In  fact   on  the   allegations  of   the   contesting respondent, publication  of the pamphlet containing communal propaganda would  also attract  sub-s. (3A) of s. 123 of the Act. The  allegation of publishing an objectionable pamphlet is indeed  very easy to make but very difficult to rebut. At the same  time it puts the ’Court on the’ strictest possible scrutiny because  objectionable pamphlet  can be  printed by any body  in any  Press with utmost secrecy and if a corrupt practice can be sought to 472 be proved  merely by  publication of a pamphlet then it will amount to giving a free licence to any defeated candidate to get an  objectionable pamphlet  published and  circulated to his supporters  and to  make them say that such pamphlet was printed  or   published  or  circulated  by  the  successful candidate. In these circumstance therefore, the Court frowns on the  evidence regarding  the publication of the- pamphlet which s comes from tainted or interested sources. In Baburao Bagaji Karemore  and others v. Govind & others(L) this Court laid down  certain tests to judge the evidence regarding the publication or  distribution of  objectionable pamphlet  and observed as follows:           "It appears  to us  that when  an  election  of  a      successful candidate  is  challenged,  particularly  on      ground of  corrupt practice,  it is  not  unknown  that      attempts are  made to  manufacture or  bring into being      subsequent to  the declaration of the result, documents      or other  material, which could be used for unseating a      successful candidate.  At any  rate, when  any impugned      document is  hotly contested  on that  ground and it is      the case  of the  respondent that  it was  brought into      existence subsequently,  the onus on the petitioner who      challenges the  election on that ground is all the more      heavy." In the  instant case  the appellant  has emphatically denied the publication of the pamphlet of the nature of Ext. A-l or the distribution  of the  same to  any body.  Thus both  the publication of the pamphlet and distribution thereof appears to be  hotly contested  by the  appellant in  this case.  In these circumstances,  therefore, it  was the bounden duty of the contesting  respondent on  whom lay  the initial onus to prove that the pamphlet was published and distributed by the appellant. There  is absolutely  no direct evidence to prove that the  pamphlet concerned  was in fact published, printed or caused  to be  published or printed through any agency of the appellant.  On the other. hand there is evidence to show that the  contesting respondent  has a  press of his own and the possibility  that he might himself have got the pamphlet printed with  a view  to set  at naught  the election of the appellant cannot  be reasonably  excluded.  The  High  Court seems to  think that  as  the  pamphlet  contained  communal propaganda and  incited the  Hindus against  the Muslims the same could  not be  printed by the contesting respondent who was a  Muslim himself.  This argument fails to consider that if an unsuccessful candidate whatever be his caste or creed, files  an  election  petition  with  the  avowed  object  of unseating the  successful candidate  he generally  stoops to all devices  in order  to show that the successful candidate

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was guilty  of such  corrupt practices  which may  lead  the Court  to  unseat  him.  If  an  unsuccessful  candidate  is motivated by  this consideration,  the religion  or caste to which he  belongs is wholly irrelevant for the purpose which is sought  to be  achieved. We  do not mean to suggest for a moment that  the pamphlet in question was in fact printed or published by the contesting respondent but if the contesting respondent wanted  to print such a pamphlet there as nothing to stop  him from doing that since he had a press of his own and as he was the owner of the press the matter (1)[1947] 3 C.C. 719. 473 could have  been kept  absolutely secret.  On the other hand there is  no evidence  to show  that the appellant owned any press at all.      The dominant fact in such a case which had to be proved was whether  the pamphlet  had come  into  existence  either before or  during  the  elections.  Unless  we  believe  the evidence  of   the  witnesses  produced  by  the  contesting respondent’ on  this point  in toto  it will be difficult to hold that  the pamphlet  was published or distributed by the appellant. the  appellant has produced respectable witnesses to show  that if  such an objectionable pamphlet as Ext. A-l had been  published and circulated, the witnesses would have know about it. In other words, the appellant sought to prove the negative  aspect of  the existence  of the  pamphlet and that is  all that  he could  have done.  The - learned Judge appears-  to  have  brushed  aside  the  evidence  of  these witnesses merely  on the ground that their evidence does not exclude the  possibility of there being a pamphlet like Ext. A-l which  was not  brought to  their notice. Indeed if this artificial approach  is made  to  the  evidence  of  such  a nature, then  it would be asking the successful candidate to prove the  impossible. We  shall, however,  advert  to  this aspect of the matter when we deal with the evidence produced by the appellant on this point.      With this  preface we shall now proceed to consider the evidence produced  by the  contesting respondent in proof of issue No.  26. By  virtue of  the application  for amendment filed by  the contesting respondent and allowed by the Court a schedule has been annexed giving the names of the villages and the dates of distribution of the pamphlet which mentions as many  as 26  villages but  at the  trial  the  contesting respondent had  adduced  evidence  only  to  show  that  the pamphlet was distributed by the appellant to various persons on various  dates at  four  places  namely,  Gooty,  Yadiki, Gundala  and   Guntakal.  There  were  some  other  villages mentioned where  the workers of the appellant are alleged to have distributed  the pamphlet but that has to be ignored in view of our finding on issue No. 27. The evidence adduced by the parties  on this  question may be reduced in the form of the following chart. In this chart the witnesses examined by the petitioner/contesting  respondent are for short referred to as "P.Ws." and the witnesses examined by the appellant as "R.Ws.". Name of  Village   Date    Persons to whom      Evidence of                                                 witnesses                           pamphlet distributed Gooty            27-2-72   PWs 21&22         BY p.Ws 21 & 22                                              R.Ws.2,14,15,22                                                       and 24. Yadiki          28-2-72    P.Ws.27,28,35,   By P.Ws. 27,28,35                            37 and 40          37 & 40 R.Ws 11                                            12, 13,16, 17 & 32 Gundala         5-3-72    P.Ws 1, 2, 3, 4,  By P.W.s 1-4 & 8

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                         and 8.            R.Ws. 1 & 32 Guntakal         22-2-72   P.Ws. 24, 25,    By P.Ws. 24, 25                            33 & 36          33 & 36 R.Ws. 3,                                             5, 7,8,9,10, 25,                                             27, 28 & 30 474      Before taking up the evidence of the parties led on the allegations regarding  the distribution  of pamphlet  by the appellant personally  it may  be necessary  to set out a few important principles  in the light of which the evidence has to be appreciated. In the first place it may be necessary to extract the relevant portions of the pamphlet itself to show the offensive  and objectionable  nature of  the same with a view to  find out  whether a person like the appellant could go to the extent of publishing such a clumsy pamphlet, which runs thus:           "Everywhere Muslims  are given  importance by  the      congress and  the Congress  is ruining  the  future  of      Hindus. In  every election  Muslims always  vote for  a      Muslim candidate.  When that is the case, what is there      wrong if  all  Hindus  vote  for  me  who  is  a  Hindu      candidate ?  Muslims have committed many atrocities and      still the Congress is giving importance to the Muslims.      For  example,   Mr.  Baraktullah  Khan  is  made  Chief      Minister in  Rajasthan and  Mr. Mohd. Ismail who is not      well known  in Andhra  Pradesh is made the President of      the Congress in the State. * * *           In  Hyderabad   Muslims   are   given   too   much      importance.  The   said  Ismail   in  order   to   give      representation and  importance to  his Muslim religion,      has given in our State nearly 20 seats to Muslims. This      is an act of are to the Hindus. Is it not atrocities of      Pakistan, horrible  incidents of Bangladesh, murders of      Navakhali an  insult to the Hindu race and religion for      ever ?"      A perusal of the recitals of the pamphlet would clearly reveal the  fact that  it is  couched in  a  most  offensive language which  is bound  not only  to hurt  and injure  the sentiments of  the Muslims  of the constituency but has also the effect  of inciting  one community  towards  another  on purely  communal   grounds.  The  allegations  made  in  the pamphlet are sufficient to alienate not only the sympathy of the Muslim  community completely  but also of a large number of Hindus  who have  a secular  outlook which  is  the  very fundamental feature  of our  Constitutional set-up.  In  the first place  the evidence  led by  both the  parties clearly disclosed that  there was  a considerable  section of Muslim population whose  votes could  not have been ignored or over looked by  any candidate  who really  wanted to succeed. The first premise  to start  with,  therefore,  is  whether  the appellant could  have taken the risk of offending the entire Muslim community and a sizable section of the Hindus also by publishing  and   circulating  the   pamphlet  in  question. Secondly, the  language of  the pamphlet  is so  strong  and conspicuous  that  it  is  difficult  to  believe  that  the Government officers  who were  posted on  duty in  order  to prevent any communal propaganda by the candidates would have missed or  failed to notice the pamphlet Ext. A-l if in fact it was  published and  widely circulated  in many  villages. Thirdly, we  must not  forget that  the appellant  had  been declared elected and by succeeding in the election there was a  strong   and  compelling   motive  on  the  part  of  the unsuccessful  candidate  to  reverse  the  election  of  the appellant by any possible means. 475

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Finally,  if   the  pamphlet   like  Ext.   A-1  was  really distributed and circulated and the contesting respondent had come to  know about  the same,  it is not at all probable to believe that  he would  have failed to give the names of the persons from  whom he  got the  knowledge of The pamphlet in the material  particulars which he has set out in support of his allegations in paragraph-39 of the election petition. It is against  the background  of these  admitted facts that we now come to the evidence led by the parties.      So far as the village Gooty is concerned the contesting respondent has examined only two witnesses to prove that the pamphlet  Ext.   A  l   was  distributed  by  the  appellant personally.  These   two  witnesses  are  P.Ws.  21&22.  The evidence of  P.W. 21  need not detain us because the learned Judge has  disbelieved the  evidence of this witness and has observed as follows:           "In my  opinion, the  evidence of Kulleyappa (P.W.      21) is  not trustworthy.  I do not, therefore, consider      it proper to rely upon the evidence of this witness. I,      accordingly reject it." After having  gone through  the evidence of this witness, we find ourselves in complete agreement with the opinion of the learned Judge as disclosed above. The only other witness who remains is  P.W. 2’,  who, as  we have  already pointed  out while dealing  with the  allegation of  bribery, is the most interested witness and a staunch supporter of the contesting respondent. Even  the learned  Judge has commented adversely on the  interested nature of the evidence of this witness as indicated by us in our judgment while dealing with issue No. 7. It  would appear that P.W. 22 was not only a supporter of the Congress  and of  the contesting respondent but was also employed by  Sultan in  the B.S.S.  He acted as the counting argent of  Sultan and  was a partner in a firm which was the sole agent on Brim Stone Rubber Products a company belonging to Sultan. The learned Judge while dealing with the evidence of this witness even on this point has clearly observed that he was prepared to fill in all the missing links in the case put forward by the contesting respondent. In this connection the learned Judge observed as follows:           "This witness  has, no doubt, tried to plug in the      loop holes,  or come  to the  aid  of  the  petitioner,      Sultan, whenever  there was  none to  offer the missing      links in  the evidence  adduced on behalf e petitioner.      Y. Ramachandraiah  was also  a business  partner and an      employee of  the B.S.S.  (Bharat  Sevak  Samaj).  Those      facts, in  my opinion,  show that  he is  an interested      witness."      Having made these comments, the learned Judge has still accepted the  evidence‘of this witness. This would have been sufficient  to   dislodge  the   evidence  of  this  witness completely. But even on its intrinsic merits the evidence of this witness does not inspire confidence. To begin with, the witness admits that the appellant had come to his house at 8 A.M. On  Sunday February  27, 1972 and requested him to help the appellant. In the first place it is difficult to believe that the 476 appellant would  of all  persons try  to enlist  the help of P.W. 22  knowing fully  well that he was an old friend and a staunch supporter  and a  close and  intimate friend  of the contesting respondent.  P.W. 22  narrates a most interesting and incredible  story. According  to him  when the appellant went to  him and  asked for  his support the witness refused and despite  his refusal the appellant was foolish enough to give him the pamphlet Ext. A-l although the witness told him

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clearly that  he was supporting the Congress and that he was an important person of Gooty and, therefore, it was not good for him  to ask  for the  witness’s support.  Thereafter the appellant is  said to  have made  a communal  appeal to  the witness more  or less  on the same lines as mentioned in the pamphlet. Thereafter  the witness  gave a  sermon to  r  the appellant and  advised him not to seek votes on the basis of religion and  caste.  Even  after  all  this  happened,  the appellant is said to have given the pamphlet to the witness. This story appears to us to be wholly improbable and against normal human  conduct.  Thus,  in  these  circumstances  the appellant would  not  have  handed  over-the  best  evidence against him  to his  enemies, namely  the pamphlet,  knowing fully well that he was a staunch supporter of the contesting respondent. Lastly the witness states thus:           "On that  evening I  went to  Guntakal, met Sultan      and ,  narrated to  him what all had transpired between      Venkatareddy and  myself. I  also showed  to Sultan the      pamphlet that  was given  to me by Venkatareddy. I read      the pamphlet  carefully and  I gave  that  pamphlet  to      Sultan."      Indeed  if   what  witness  stated  was  true  and  the contesting respondent  " was apprised of the entire story on the evening  of February  27, 1972  i.e.  about  two  months before the election petition was filed, would he have failed to mention the name of P.W. 22 and the story revealed by him in the  allegations made  in paragraph-39  of  the  petition regarding the  distribution of the pamphlet ? Even if he had failed to  do that; would the contesting respondent not gave at least  mentioned the  name of  the witness  as  also  the details narrated  by him  in  the  material  particulars  in support  of  the  allegations  in  paragraph-39  which  were inserted by  virtue of  the application  for amendment ? All these facts are completely absent from the averments made in paragraph-39 either  before or after the amendment. All this shows that  the witness has deposed to a cock and bull story which cannot  be believed  for a  moment. For these reasons, therefore, we  are not  at all  impressed with  the evidence P.W. 22  -? and  we reject  the same.  P.W. 21  having  been disbelieved by  the Court  below and  P.W. 22 by us there is absolutely no evidence left to prove the allegation that the pamphlet  Ext.   A-l  was   distributed  by   the  appellant personally  in   the  village  Gooty.  Thus  the  contesting respondent initially  failed to discharge the onus which lay on him  to prove  the distribution  of the  pamphlet by  the appellant to P.Ws. 21 and 22.      In the  above view  of the  matter it may not have been necessary to  deal with  the evidence  led by  the appellant which is  more or less of a negative character. Nevertheless we would  only refer  to the  evidence r of four respectable witnesses who  have been  examined by  the  appellant  which throws a flood of light on the question. 477      R.W. 2  was a  sub-Inspector of  Police  at  Gooty  and states that  he had  accompanied the procession taken out by the appellant.  The categorically  states that  no  pamphlet like  Ext.   A-l  was  distributed.  The  witness  had  made arrangements for  the procession  and it  is obvious that if any pamphlet  like Ext.  A-l had  been distributed, the same would have  come to  his notice. The witness further deposes that many  pamphlets were  distributed by various contesting candidates and  all the  pamphlets coming to his notice were sent to  the Superintendent of police. The learned Judge has commented on  the fact  that the  witness did  not  keep  an account of  the pamphlets  distributed  nor  were  the  same

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called for  from the  office of the Superintendent of Police to  whom   they  were   forwarded.  When   the  witness  has categorically stated  that- no  pamphlet like  Ext. A-l ever came to his notice, though he would have come to know of the same because  he was  making all  the  arrangements  in  the procession and was in charge of the election duty, that fact itself lends  indirect sup port to the case of the appellant that no  such pamphlet  was ever distributed. We do not mean to suggest  that the  evidence of this witness is conclusive but it  is an  important circumstantial  evidence to support the case  of the  appellant particularly when the contesting respondent has  not adduced  satisfactory evidence  to prove his plea.      R.W. 15  is a  certified clerk  of  Shri  Kona  Venkata Reddy, Advocate  of Gooty and was a worker of the appellant. This witness states that a procession was taken out at Gooty in which  the appellant  had merely  r- asked  the public to vote for  the Cycle  symbol and  that the witness along with others had  taken part in the procession. The witness denied that any  pamphlet like Ext. A-1 was distributed to any body in the  procession. He  has been  subjected to  a  searching cross-examination but  nothing of  much importance  has been elicited. It  is  true  that  the  witness  has  denied  the knowledge of  other pamphlets  like A-70 to A-78 but that by itself is not sufficient to throw out his evidence.      The  next  witness  is  R.W.  22  who  is  an  Advocate practising  at   Gooty  since  1921.  He  appears  to  be  a respectable witness and does not bear any animus against the contesting respondent.  He has,  however,  frankly  admitted that he  was working  for the appellant and had participated in the  procession which  was taken  out  at  Gooty.  -  The witness categorically states that the pamphlet like Ext. A-l was not distributed either during the procession or later on or at  any time. Although the witness was no doubt a support of the  appellant, but  being an  Advocate he is a respected have must  the strong  reason to  reject  his  evidence.  In cross-examination  nothing   much  of  importance  has  been elieited. The  denied the  suggestion that he was in any way related to the appellant.      The last  witness on  this point  is R.W.  24 who was a Special Branch  Headconstable with  headquarters  at  Gooty. According  to   him  Gooty  Police  Circle  was  within  his jurisdiction. The  witness has categorically stated that his duty  was   to  cover   political  activities,   agitations, movements  and   secret  enquiries.   The  witness   further emphasised the  fact that  it was  his duty  to collect  any pamphlets which  related to  political matters  or contained objectionable language  and  pass  on  the  same  to  his  - superior officers. The witness was shown Ext. A-l and he has categorically stated  that no such pamphlet ever came to his notice either  16-L522 SCI/76 478 during the  election or  afterwards, nor  did  any  pamphlet distributed in  Gooty by  any candidate  come to his notice. This witness  is undoubtedly  an independent one and was not at all  interested in  any particular  candidate.  The  only comment against  this witness  was that  he has not produced the daily reports about the existence of the pamphlet. It is obvious that  if no  such pamphlet  came to his notice there was no  occasion for  mentioning the same in his report. The other comment  made .  ’ >  by the  learned Judge  was  that although he  had forwarded  the pamphlets  to  his  superior officers, no  attempt was  made by the appellant to call for the record  from the  superior officers. That fact would not

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by itself  falsify the  evidence of  this witness.  We  have already observed that the or language of the pamphlet was so offensive and  hurting that  if such  a pamphlet  would have been in circulation, it would be impossible to be lieve that an officer  like R.W.  24 who  was deputed expressly for the purpose of  finding out  such pamphlets  would not have been able to notice the same or would have missed the pamphlet if the same  was 3  distributed in  Gooty.  This  circumstance, therefore, lends  support to  the case of the appellant that no such  pamphlet was  ever distributed  by the appellant in Gooty and  reinforces the case of the appellant particularly when we have seen that the two witnesses examined by the con testing  respondent   in  support  of  his  case  have  been disbelieved as unworthy of credence.      This brings  us  to  the  other  limb  of  the  corrupt practice alleged  by  the  contesting  respondent  regarding distribution of  the pamphlet  by the  appellant in  village Yadiki. The  evidence led  by the contesting respondent is a composite one consisting of the witnesses who speak not only about distribution  of the  pamphlet by  the appellant alone but also  by his  workers. We  have already  indicated above that due  to want  of proper  pleadings the allegation about the  pamphlet  having  been  distributed  by  the  appellant through is  workers, agents supporters and friends has to be completely-excluded    from    consideration.    In    these circumstances we  would only  confine our assessment to that part of the evidence led by the parties which relates to the question af  distribution of  the pamphlet  by‘the appellant personally. r      The contesting respondent has examined P.Ws. 27, 28, 35 and 37  to prove-(1)  that a procession was taken out by the appellant in  Yadiki on  February 28, 1972; and (2) that the appellant personally  distributed the  pamphlet  to  various persons in  the course  of the  procession. So  far  as  the appellant is  concerned he  has denied that he ever took out any procession  in Yadiki  on  February  28,  1972.  It  was further narrated  that February  28, 1972 being Monday was a "Shandy Day"  on which  the village market fair was held and it was  therefore, not  possible to take out a procession on that day.  appellant’s further  case was  that he had merely gone from  house to house in the village in order to solicit votes for  him. This  is undoubtedly  permissible under  the election law.  In view  of the  unsatisfactory nature of the evidence led  by the contesting respondent on this point, it is  not   necessary  for  us  to  enter  into  an  arena  of controversy  regarding  the  question  whether  or  not  the appellant to  ok out a procession. Assuming that he did, the sole  question   is   whether   the   appellant   personally distributed any pamphlet to any body at Yadiki on February . 479 28, 1972  as  alleged  by  the  contesting  respondent.  The evidence of  A PWs. 27 & 28 is almost identical because both of them  alleged to  be paid  workers of  the appellant  had participated  in   the  procession  and  saw  the  appellant distributing the  pamphlet. The appellant however, seriously disputed the  fact that  these witnesses had ever been hired or engaged  by him  for doing  his  election  work.  On  the question of  the issue  relating to the expenses incurred by the appellant,  the- learned Judge clearly found that it was not proved  that P.Ws.  27 &  28 had  been appointed  by the appellant. Even, while considering the evidence of these two witnesses on this point, the learned Judge observed thus:           "Since there  were discrepancies  in the matter of      talking cf  the terms  and the  place where  they  were      talked over,  - and  the person  before whom such terms

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    were talked  over, I held that it was unsafe to include      the salaries of those persons in the return of election      expenses filed  by Venkatareddy, i.e. Ext. A-98. Though      P.W. 27  and P.W.  28 did  not  prove  that  they  were      appointed by  the 1st  respondent, D. Vankatareddy, for      the  purposes  of  writing  on  the  walls  of  various      villages on behalf of respondent No. 1." The learned  Judge, however, chose to act on the evidence of these witnesses  because according  to him P.Ws. 35 & 37 had corroborated the  evidence of  these witnesses. We will deal with the  evidence of P. Ws. 35 & 37 a little later, but the fact remains  that as  the appellant has emphatically denied having ever  appointed these  witnesses as  his workers, and the Judge having himself held that this fact was not proved, it  was  not  open  to  the  learned  Judge  to  have  still speculated that  they might  have been  the workers  of  the appellant. Thus  there can be only two possibilities: either these two  witnesses were  not employed  by the appellant at all in  which case there would be absolutely no occasion for their presence  in the  procession, which  according to them was  only   in  their  capacity  of  being  workers  of  the appellant. If  this is  so then the entire evidence of these witnesses falls  to the ground. Assuming, however, that they worked for  the appellant, then their evidence appears to be of a  turn-coat type  which is  interested  and  tained  and cannot be acted upon without corroboration. While commenting upon the  credibility of  a turn-coat  witness this Court in Rahim Khan  v. Khurshil  Ahmed  and  others(1)  observed  as follows: r           "But  more   curious  is  the  turn-coat  type  of      witnesses who  claimed to be and often were the polling      agents or  workers of  the appellant  ti11 the election      was over,  but, in  the post-election  period when  the      Respondent No.  l’s  party  had  formed  a  Government,      quietly shifted  their loyalty  and  gave  evidence  in      proof  of   the  averments   in  the  petition.  it  is      conceivable that  these persons  who  had  collaborated      with the  appellant in  the malpractices  alleged  were      possessed of  the urge  to unburden their bosoms of the      truth of  their own  evil-doing and  hurried  into  the      witness box  to swear  veraciously to  what took  place      actually. But the      (1) [1974] 2 S.C.S. 660 480      more probable  explanation would  be that these swivel-      chair  witnesses  with  India-rubber  consciences  came      under the  influence of  Respondent No. 1 for invisible      consideration and  spoke dubiously  in support of their      present patron." Moreover it  seems to  us that  even on its intrinsic merits the  evidence  of  these  two  witnesses  does  not  inspire confidence. They have only in a general way stated that they had participated  in the  procession and  that the  pamphlet Ext. A-l  was distributed  by the  appellant and a number of other persons.  They did not give any details as to whom the pamphlets were distributed and at what place. So far as P.W. 27 is  concerned he  admits that  he is an illiterate person and identifies the pamphlet only by colour and by alphabets. This is,  however, a very unconvincing identification and it is not  safe to act on the same P. W. 27 further admits that 8 or  10 days after the election Sultan had come over to the house of  Radhakrishna who  had sent for both the P.Ws. 27 & 28 and  they were  asked to give evidence regarding the work they had  done for the appellant. The witness further stated that he  accepted the  offer and wrote down something on the

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paper He also admits that Radhakrishna had helped Sultan the contesting respondent  in the  elections. It  is, therefore, clear that  both P.Ws.  27 &  28 were  procured by  P.W.  35 Radhakrishna  who   was  a   supporter  of   the  contesting respondent in  the  election.  The  witness  (P.W.  27)  had voluntarily worked  for the  appellant and  appears to  have readily accepted  the offer  of the contesting respondent to depose for  him against  the appellant  without  having  any sense of  decorum or decency and appears to have transferred his  loyalty   to  the   contesting  respondent.   In  these circumstances, the  evidence of  P.W. 27  is not  worthy  of credence. The  evidence of  P. 28 also suffers from the same infirmity as  that of  P.W. 27. Apart from that the evidence of P.W. 28 does not appear to be reliable, because he admits that he  was brought  to Hyderabad  fol’ giving evidence and stayed there  for 10 days. He further admits that Sultan the contesting respondent  was meeting  his expenses.  In  these circumstances, therefore,  it is  clear that the witness was fully tutored  and then  brought to  give evidence  for  the contesting respondent.  In these  circumstances- we  do  not choose to  place any  reliance on the evidence of P.Ws. 27 & 28.      The next  witness on  the  point  is  P.W.  35  who  is undoubtedly an interested witness inasmuch he is a supporter of Sultan  who had  worked for  him in  the election and was also his  polling and  counting agent.  This witness  states that a  procession was  taken out by the appellant at Yadiki on February  28, 1972  which was headed by drummers followed by a  band set.  He  says  in  a  general  manner  that  the appellant and  his workers  were distributing the pamphlets. He identifies  Ext. A-l  as a  pamphlet given to him. But in cross-examination at  P. 561 of the Paper Book (Vol. III) he clearly admits  that the  pamphlet was  given to  him  by  a worker of  the appellant  Venkata. Reddy  and not by Venkata Reddy himself. As the evidence regarding distribution of the pamphlet  by   the  workers   has  to   be   excluded   from consideration his  evidence clearly shows that the appellant himself did  not give any pamphlet to him. Thus his evidence does not  appear to  be of  any assistance to the contesting respondent and  we fail  to understand how the learned Judge has read the 481 statement of  this witness as corroborating the evidences of P.Ws. 27  1 and  28- which  is the  sole ground on which the evidence of  this witness  has been  accepted by the learned Judge. It  seems to us that the learned Judge has completely overlooked the  important admission  made by  P.W. 35 in his evidence  which   shatters  the   case  of   the  contesting respondent regarding  distribution of the pamphlet by the i‘ appellant to this witness.      The last witness on the point is P.W. 37. He is also an interested witness and bears an animus against the appellant inasmuch .  as he  is said to have filed a complaint against the appellant  who is  alleged to have beaten him during the election. It  appears that  the police  did not register any case on  the basis  of his  complaint and - according to the witness the matter is still pending in revision. The witness further deposes that he knew the appellant since about 20 to 25 years  although he  gives his  age as only 28 years. This demonstrates the  utter falsity of his statement. He further admits that he was working for Sultan and that the appellant Venkata Reddy  saw him  working for Sultan even prior to the date when  the procession was taken out at Yadiki. According to the  witness, the  pamphlet  was  given  to  him  by  the appellant. It  is difficult  to believe  that the  appellant

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after having  known that  the witness was working for Sultan would have  given such  an offensive  pamphlet  to  him  and create adverse  evidence against  him. Lastly,  the  witness admits at pp. 577-578 of the Paper Book (Vol. III) that five or six  days after  the procession  was  taken  out  by  the appellant Sultan  had come  to Yadiki and he had told Sultan about the  incident. Thus,  according to the witness, Sultan came to know about the distribution of the pamphlet Ext. A-l to the  witness near about the end of February and yet it is astounding that  he did  not make  any mention  of this fact either in  - paragraph-39  of his  petition or  even in  the material  particulars   which  he  gave  by  virtue  of  the amendment. We  have  already  indicated  that  the  evidence discloses that  Sultan was informed long before he filed the election petition  that the  pamphlet was distributed by the appellant to  the  named  persons  who  were  known  to  the appellant and  yet  this  fact  was  not  mentioned  in  the particulars given by the contesting respondent. This conduct clearly shows  that the  entire story is purely a figment of imagination  of  the  contesting.  respondent  and  his  sup porters and  has been  bolstered upto  unseat the appellant. For these  reasons, therefore  we are  not in  a position to place implicit  reliance on  the testimony  of this  witness also.  It   would  thus  appear  that  even  in  Yadiki  the contesting respondent  could not get hold of any independent witness to  prove the  distribution of  the pamphlet  by the appellant. According  to the  P.Ws. Yadiki  is a big village and if  a procession  was taken  out by  the appellant there must have  been a  r. large number of persons present in the procession  and   it  is  impossible  to  believe  that  the appellant could  not get  hold of a single person who was in any way unconnected with him to prove that the pamphlet like Ext. A-l  was distributed  to any  such person.  Both on the charge of  the offer  of bribe  as also  on  the  charge  of distribution  of   objectionable  pamphlet   the  contesting respondent has  chosen to  examine only  those witnesses who are in  some way  or the  other totally  interested  in  the contesting  respondent  or  connected  with  him.  Thus  the evidence of the witnesses referred to above does not satis- 482 factorily prive  that  the  appellant  had  distributed  the pamphlet Ext. A-l to any body in Yadiki on February 28, 1972 as alleged  by the  contesting  respondent.  The  contesting respondent has,  therefore, failed to prove this part of his case. In  view of  this finding it is not necessary to go to the evidence produced by the appellant. Never theless R. Ws. 11, 16  and 17  have deposed  on oath that no procession was taken out  in Yadiki  and that no pamphlet like Ext. A-l was ever distributed  by the  appellant. Even  if we  ignore the evidence of  these witnesses,  as the  contesting respondent has not  proved his allegation c on this part of the case he must fail.      We will  now deal with the allegation of the contesting respondent regarding  distribution of  the pamphlet  by  the appellant in village Gundala on March 5, 1972. On this point the contesting respondent relies on the evidence of P.Ws. 1, 2, 3,  4 and 7. Here also the evidence of these witnesses is a composite  one seeking  to prove  the distribution  of the pamphlet not  only by the appellant but also by his workers, and we  have got  to ignore  that part of the evidence which relates to  the distribution  of the pamphlet by the workers of the appellant. To begin with, the evidence of P.Ws. 1 and 3 has been disbelieved by the learned Judge having regard to other items  regarding payment of the bribe by the appellant to these  witnesses and the Judge has held that they were in

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the nature  of accomplices.  In this  connection the learned Judge has observed, at pp. 1319-1320 of the Paper Book (Vol. VI) as follows:           "Since P.Ws.  1 and  3  also  say  that  they  had      actively helped Venkatareddy in the distribution of the      offensive pamphlets,  and  thus  they  helped  the  1st      respondent  in  committing  a  corrupt  practice  under      section  123(3)   and  Section   123   (3-A)   of   the      Representation of  the People  Act, even  in regard  to      this corrupt  practice, P.Ws.  1 and  3 can  either  be      equated to  "accomplices" or  regarded  as  person  who      actively helped  Venkatareddy in  the commission  of  a      corrupt practice.  Their evidence, even in this behalf,      requires  corroboration   in  material  particulars  by      independent testimony."      Indeed if  this is  the character  and tenor  of  these witnesses it would be difficult to place any reliance on the evidence of  these witnesses  on any  point.  Further  more, according to  the evidence  of these  two witnesses they had actively helped  the appellant  in the election and now they are coming  forward against  the appellant  and in favour of the contesting  respondent in order to unseat the appellant. Their evidence  is also  of a  turn-coat type  and therefore tainted. In these circumstances no reliance can be placed on the evidence of such witnesses. However. even on merits they do not appear to be reliable witnesses. P.W.l states that he belongs to  Gundala and  then ten  days prior to the polling the contesting  respondent Sultan  had contacted  him in the village and  asked him and others to cast their votes in his favour.  The  witness  and  others  assured  the  contesting respondent that they had always been voting for the Congress and they will, therefore, vote for him. After the contesting respondent had  left the village the appellant Venkata Reddy came 483 to the  village in a jeep and he asked the witness and other persons A to vote for him. But the witness and other persons explained to  the appellant that on earlier occasions all of them had  voted for  the Congress  and so this time too they will do  the same.  Thereupon the  appellant is said to have made an  appeal on communal grounds saying that the Congress is always  in the habit of giving tickets to the Muslims and not to  Hindus and tried to wean them away from the Congress fold. There  was thus  an  exchange  of  words  between  the witness and  others and  ultimately the  appellant paid some money to  the witness.  This allegation has been disbelieved by the  learned Judge.  Therefore, to  start with  the  very genesis on  the basis  of  which  the  witness  has  deposed disappears, and  there was  no occasion for the appellant to have given any pamphlet to the witness. The witness proceeds to state  that  after  the  exchange  of  these  talks,  the appellant gave  the pamphlet  to the witness and he took the pamphlets to  village Ammenapalli  and gave the pamphlets to the voters  of that  village. We are, however, not concerned here with  the distribution  of the pamphlets by the workers of the  appellant. The  witness identifies the pamphlet Ext. A-l as  the one  having been  given to him. According to the witness the  appellant had  gone to  him ten days before the polling and  the witness  states thus at p. 125 of the Paper Book (Vol. II): D           "It was  for the  first time  that I  came to know      Venkata Reddi  on the  day when  he visited our village      i.e., ten days prior to the polling date."      This would  mean that  the appellant  had contacted the witness on or about February 20, 1972. But the definite case

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made out  by the  contesting respondent  in his  petition is that so far as the village Gundala is concerned the pamphlet was distributed  by the appellant on March 5, 1972 i.e. Only four  days  before  the  polling.  In  these  circumstances, therefore the  evidence of  this witness is falsified by the particulars  given  by  the  contesting  respondent  in  his petition and  on this  ground alone  his evidence  has to be rejected as  being contrary  to the pleadings. Further more, it appears  that the  witness is  a staunch supporter of the Congress and  on his  own showing he had been voting for the Congress in  all the elections. The witness admits at p. 134 of the  Paper Book  (Vol. II)  that in the previous election also the  witness had  worked for  the  Congress.  In  these circumstances, therefore,  the evidence of this witness does not appear to be creditworthy.      The next witness on the point is P.W. 2 who states that the con-  testing respondent Sultan had visited the locality and had  asked him to vote for him. Thereafter the appellant came to  his village  and was  accompanied by  P.W.  1.  The witness states that the appellant Venkata Reddy asked him to vote for  the Swatantra Party. This knocks the bottom out of the evidence  of this  witness because  it is  nobody’s case that the  appellant  was  the  candidate  sponsored  by  the Swatantra Party  and  it  is  the  admitted  case  that  the appellant was  an independent  candidate. This  also reveals the falsity  of the  story  narrated  by  the  witness.  The witness then  states that  after having asked the witness to vote for the Swatantra Party the appellant gave 484 him a paper which contained the cycle symbol. On seeing Ext; A-l the  witness identified  it as  the same paper which was given  to  him.  The  witness  further  admits  that  he  is illiterate and  it is,  therefore, not understandable how he identified the  pamphlet Ext.  A-l. The witness did not show that paper to any body on that day and later on he showed it and got  it read  over to  him and  thereafter he decided to vote for  the appellant  as the  Muslims were bad people. In fact in  an unguarded  moment he has said that he decided to vote for  the Congress  and then  changed his  statement  as appears from  the endorsement  made by  the Court. In cross- examination the  witness admits  that  ten  days  after  the elections were  over, Sultan  had come  to his  village  and asked him  why he  did not vote for the Congress. There upon the witness  told him  that the  appellant Venkata Reddy had distributed the  pamphlet and asked him to vote for him. The witness further  categorically states  that  he  showed  the pamphlet given  to him by the appellant to Sultan and he was asked by Sultan to preserve . the pamphlet so that it may be used in  the Court  as and  when necessary. According to the witness this  event took-  place only  ten  days  after  the election i.e. some time in the middle of March 1972 and well before the  election petition  was filed. Indeed if what the witness says  was absolutely  true, then  Sultan had come in possession  of   the  most  damaging  evidence  against  the appellant long  before the petition was filed and yet he did not choose  to mention  this fact  either  in  his  petition before  amendment  or  after.  Even  the  pamphlet  was  not produced along  with the  documents as  being  the  pamphlet shown to him by the witness but the appellant rest contented by asking  the witness  to keep the pamphlet with him. It is not at  all understand- r able or intelligible as to why the pamphlet was  not produced  by the . witness when he came to the witness-box for his examination-in-chief and it was left only to  the question  to be  put by  the Court  after lunch break when  the pamphlet  was produced. Could the contesting

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respondent, having  known those facts, take the risk that if the Court  did not  ask any question then the pamphlet would not be  produced by the witness at all? All this, therefore, shows that  the evidence  of this witness is untrue and is a frame-up in  order to  support the  allegation made  by  the contesting respondent against the appellant.      This brings  us to  the evidence of P.W. 3. The learned Judge has  also seriously  commented on  the credibility  of this witness,  so far  as other  allegations were concerned, and therefore  to begin with the evidence of this witness is tainted. Further  more, the  evidence of -1‘ this witness is of a  turn coat  type because  he is said to have worked for the appellant  and after  the election  he deposed  for  the contesting respondent.  P.W. 3  also gives  almost a similar story as  P.W. 1  regarding the communal appeal said to have been  made  by  the  appellant.  He  also  states  that  the appellant paid  him Rs. 500/- for working and helping him in the election.  This allegation  has been  disbelieved by the learned Judge.  Another factor  which impairs  the credit of this witness  is his  admission that  at  the  time  of  the polling he was instrumental in getting the false votes cast. In this connection the witness states at p. 149 of the Paper Book (Vol. II) thus:           "Boya Nagamma  and Venkatappa were residents of my      village. They were dead before the polling date. The 485      votes were  cast in  their names. Myself and P.W. 1 got      the votes  cast in  their names. Votes were cast in the      names of  persons who  were not  present on the polling      date. Myself  and P.W.  1 got  such votes  cast in  the      names of the villagers who were absent from the village      on the polling date." It would thus appear that the witness was of such low morals and characterless  as he went to the extent of getting votes cast in  the names  of persons  who were already dead or who were not  at all  present  at  the  polling  booths.  It  is difficult to place any reliance on the evidence of a witness of such character. For these reasons therefore we are not in a position to place any faith this witness.      According to  P.W. 4  Sultan had come to his village in order to  solicit votes in his favour and he was accompanied by P.Ws.  1 &  3 and  P.W. 22.  In  the  presence  of  these witnesses Sultan  asked the witness lo vote in favour of the Congress and  he assured  Sultan that  all the villagers had decided to vote for the Congress. It would thus be seen that when Sultan  had gone to the witness’s residence P.Ws. 1 & 3 who had  been the  workers of  the appellant had accompanied the adversary of the appellant even at that time. Thereafter according to  the witness when Venkata Reddy came to him and asked him  to vote for him and here also the P.Ws. 1 & 3 had accompanied  the   appellant.  This   shows  the  unreliable character of  P.Ws. I  & 3.  The witness  again narrates the same story  that the appellant made a communal appeal to the witness and asked him on ground of religion to vote for him. Thereafter the  appellant give him the pamphlet. It might be mentioned here  that  no  case  has  been  set  out  by  the contesting respondent  either in  his  petition  or  in  the particulars given  by him  that the  appellant had  made any oral appeal of a communal nature to any person either before or after  distributing  the  pamphlet  Ext.  A-l.  In  these circumstances the evidence of P.Ws. t to 4 on the point that the appellant  had made an oral appeal cannot be accepted as being contrary  to the  pleadings and thus the most integral part of the evidence of these witnesses falls to the ground. According to  P.W. 4 the pamphlet was given by the appellant

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to the  witness and  thereafter he  left. We  find  it  very difficult to  believe  that  if  the  appellant  was  really serious in  getting the votes of these persons he would just hand over the pamphlet and go away without trying to explain the purpose  and the  contents of the pamphlet, particularly when he  knew that  P.W. 5 and others had- their inclination towards the  Congress. In  the first  place if  he knew that P.W. 4 and other villagers had their inclination towards the Congress and  had decided to vote for the Congress, he would not risk  giving the  pamphlets-to such  persons at all, and even if  he did,  it is  difficult to  believe that  he will distribute the  pamphlets in  such  a  casual  and  cavalier manner. Finally  P.W. 4,  just like  other  witnesses,  also states that  ten days  after the elections were over, Sultan had come  to his  village and he was informed by the witness about the  distribution of  the offensive  pamphlet and  the Oral appeal  made on  communal grounds made by the appellant and yet  we do  not find  the name of any of these witnesses including P.W.  4 in  the petition  as being  the persons lo whom the  pamphlets were  distributed. This  appears to be a very substantial  ground on  which  the  evidence  of  these witnesses should 486 be rejected,  because it proved the intrinsic falsity of the evidence. There  does not  appear to  be any  earthly reason why, after  having been  informed by P.Ws. l to 4 and others whose  case   has  been   discussed  above,  the  contesting respondent would  not mention  these facts  in his  election petition when  the same  came to  his knowledge  well before filing of  his election  petition. The learned Judge appears to have  completely overlooked  this aspect  of  the  matter which introduces  an intrinsic  infirmity in the evidence of the witnesses.  For these  reasons we reject the evidence of P.W. 4.      The last  whitens on  the point is P.W. 8. His evidence is almost  identical with  that of  P.W. 4. According to the witness the contesting respondent Sultan came to the village ten days  prior to  the date  of polling. That would be near about February  28, 1972  and asked  the witness to vote for the Congress.  The witness assured the contesting respondent that he would vote for the Congress. Three days prior to the date  of   polling  the   appellant  came   to  the  village accompanied by P.Ws. 1 & 3 and the witness informed him that they had  decided to  vote for  the Congress.  Thereupon the appellant again  made a  communal appeal to them, gave him a pamphlet and  walked away. Thus the evidence of this witness also suffers  from the  very same  infirmities which we have pointed out  in respect  of P.W.  4. At  p. 231 of the Paper Book (Vol.  II) the  witness contradicts  himself and states that the  appellant merely gave him a pamphlet and asked him to vote  for him.  He did  not say  anything more.  Thus the story of  an oral  appeal is  given a  complete go-by in the later part of his evidence. It is impossible to believe that the appellant  would try  to procure the vote of the witness knowing fully  well that  he had  decided to  vote  for  the Congress and  quietly parted  from the  witness after giving him the  most  damaging  evidence  against  him.  For  these reasons, therefore,  we are  not in  a position to place any reliance on the evidence of P.W. 8.      This is all the evidence that the contesting respondent has led  in  proof  of  the  fact  that  the  appellant  had personally distributed  the pamphlets in the village Gundala on  March  S,  1972.  After  careful  consideration  of  the evidence  produced  by  the  contesting  respondent  we  are clearly of  the opinion  that the  evidence is not worthy of

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credence and  the contesting  respondent has failed to prove by  clear  and  cogent  evidence  that  the  pamphlets  were distributed by  the appellant  personally to  any person  in Gundala or  for that  matter to  P. Ws. 1, 2, 3, 4 and 8. In view of  our finding that the evidence led by the contesting respondent  on  this  point  is  unsatisfactory  it  is  not necessary for  us to refer to the evidence given in rebuttal by the appellant which is necessarily of a negative nature.      The  last  limb  of  the  case  comprises  the  alleged distribution of  the pamphlet  Ext. A-l by the appellant. to persons in village Guntakal on February 22. 1972. P.W. 24 is Thirupathi Rao  a registered  medical practitioner Guntakal. To start  with the  witness admits  that he  worked for  the Congress. The  witness goes  on to  state that the appellant had come  to his  dispensary and  had asked for his support, but P.W.  24 told  him that he belonged to the Congress, and therefore he could not help others. Thereafter the appellant is said to have given him the pam- 487 phlet Ext. A-l and the witness pointed out that the pamphlet was very  offensive. Thereupon the appellant is said to have made some  sort of  a communal  appeal to  the  witness  and having left  the pamphlet  with him walked away. The witness has categorically stated that after the oral communal appeal was made  by the appellant, the witness told him that he saw no difference  of religion,  caste, creed  and that he could not support  him. It  is  impossible  to  believe  that  the appellant knowing full well that the witness was an educated person and  a Doctor  practising at  Guntakal and not a mere illiterate voter would make any communal appeal to him, much less when  he was told in plain terms by the witness that he was a  Congress worker.  In these  circumstances, would  the appellant still  have given the pamphlet to this witness and created an  unimpeachable evidence  against him. There is no doubt that  the witness is not an independent witness but is an interested  one, because  not only  he Cr  was a Congress worker but  also acted  as a counting agent for Sultan as he admitted in his evidence. Further more, the oral appeal said to have  been made  by the appellant is not at all mentioned in the election petition. Apart from being a Congress worker he held  an important  position in  the Congress party being the Vice-President of the Town Congress Committee right from 1967. The  witness further  admitted that  being  the  Vice- President of the Town Congress Committee he was an important member of  the  Congress  party  at  Guntakal.  The  witness further states  that when  Sultan came to Guntakal he showed the pamphlet  to him  and this happened even before the date of the  polling. In  fact he  showed the  pamphlet to Sultan five or  six  days  before  the  date  of  the  polling.  It surpasses our  imagination that  if an important congressman like P.W.  24 would  have informed  Sultan four or five days before the  polling that an offensive pamphlet like Ext. A-l was given to him by the appellant, the contesting respondent would take  it lying  down and would refrain from taking any action in  the matter.  We have  already  pointed  out  that Sultan was  not of  a quiet type of men but had made several complaints to  the police  officers and  it is impossible to believe that  if he had known from, such an important source like  P.W.   24  that   an  offensive   pamphlet  was  being distributed during  the election  he  would  have  taken  no action against  the  appellant  by  moving  the  authorities concern- ed  or in  informing the  police and  the  congress circles. Far  from it  he did  not even  mention  this  fact either in  his election petition or in the particulars which he gave thereafter. We fail to understand how the contesting

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respondent could  have failed  to mention  such an important incident in  his pleadings  at any stage. This clearly shows that the  evidence bf  P.W. 24 is not correct. The appellant who appears  to be  a responsible man would not have been so foolish as to have left in the hands of P.W. 24 the pamphlet in question  knowing full  well  his  strong  views  in  the matter. The witness further admitted that he was deposing to this point  for the  first time  in the Court and he had not told this fact to any one else. How can we believe that P.W. 24  holding   such  an   important  post   in  the  Congress organisation would  have failed to draw the attention of the authorities in the Congress Party regarding the distribution of an  offensive pamphlet  by the  appellant which  may have seriously impaired  the election  prospects of the candidate of the Congress. For these reasons, therefore, we are not in a position  to place  any reliance  on the  evidence of this witness. 488      The next  witness is  P.W. 25. This witness admits that he voted for the Congress candidate Sultan and supported his candidature during  the election.  According to  him fifteen days prior  to the  date of polling he along with Sultan and others were  moving in  the ward  canvassing  for  votes  in favour of  Sultan. Eight  days prior to the date of polling, which would  mean near  about the.  1st March  the appellant Vankata Reddy  along with  others came  to the  house of the witness in  a jeep and Ram chandra Gaud who was supporter of the appellant told the witness to > help Vellkata Reddy. The witness, however,  explained to them that he had always been supporting the  Congress and  stood committed  to Sultan and therefore he  could not  support the  appellant.  Thereafter Ramchandra Gaud threatened the witness that he would destroy the partner  ship business  in which  he was a partner if he did not  help the  appellant. In view of the threat given by Ramchandra  Gaud   the  witness  decided  to  work  for  the appellant.  Thereafter   the  appellant  gave  a  bundle  of pamphlets containing  the cycle  symbol to be distributed to various persons.  That is how, according to the witness, the pamphlet came  in his pos session. In order to prove that he was a  worker of the appellant he produce Ext. A-40 which is a polling  agent form  assigned by  the appellant.  To begin with this witness also appears to be of a turn-coat type and his evidence  is tainted  and cannot be accepted without any corroboration. It  is difficult to believe the story that it was because  of duress  that  he  agreed  to  work  for  the appellant because if that was so, then the partnership which is still  continuing while the threat remains, the k witness would not  have dared  to depose  against the  appellant  in order to-  help Sultan  and yet  he has done it. The witness has  clearly   admitted  that   the  partnership   is  still continuing and  therefore the  danger with which the witness was faced  and which  made him  work for the appellant still continues and it is not understandable how the witness could suddenly change  colours. Further more the witness admits at p. 474  of the  Paper Book (Vol. III) that the appellant had given the  pamphlet to  the witness  eight days prior to the date of  polling which  would mean near about February 28 or March 1,  1972, but  according to  the material  particulars given by  the contesting respondent in the election petition as amended  the date  of distribution  of  the  pamphlet  at Guntakal  is  mentioned  as  February  22"  1972.  Thus  the evidence of  this witness  being contrary  to the  pleadings must be disregarded. In these circumstances therefore we are not in  a position  to place any reliance on the evidence of this type.

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    This bring us to the evidence of P.W. 33. We have fully discussed the evidence of this witness on issue No. 7 on the allegation of bribery and have disbelieved him. We have also pointed out  that P.W.  33 was  a staunch  supporter of  the contesting respondent  and appears  to be an omnibus witness so as to support the contesting respondent on all points and supply the  missing links.  The witness  states that P.W. 18 and Venkata  Reddy the appellant went from house to house in the ward  soliciting votes.  Both these  persons came to the house of  the witness  while he was standing in front of his house. Both of them distributed pamphlets and went away. The witness being  a  staunch  supporter;  of  the  con  testing respondent it  is most  unlikely that  the  appellant  would distribute the pamphlet of all persons, to him. Further more the witness  only deposed in a very general manner that both P.W. 18 and the appellant 489 gave the  pamphlet to  him. The  witness admits  that he had read the pamphlet and yet he states that he did not complain to the  police  that  the  pamphlet  may  lead  to  communal trouble, particulary  when  the  pamphlet  was  distributed, according to the witnes about fourteen or fifteen days prior to the date of polling. The witness further admits that four or five days prior to the date of polling Sultan had come to Guntakal and the witness had informed him about the pamphlet and yet  Sultan also  did  not  mention  this  fact  in  the material particulars  given in  his election  petition after the amendment. For these reasons therefore, we are satisfied that this  witness has merely tried to oblige the contesting respondent being his intimate friend and staunch supporter.      The last witness on this point is P.W. 36 Abdul Jabbar. Having regard to the offensive contents of the pamphlet Ext. A-l it  is impossible to believe that the appellant, even as a person  of ordinary  prudence, would  have distributed the pamphlet to  a Muslim  and a  person who had also worked for Sultan. By distributing such a pamphlet to a Muslim he would not only  hurt the  feelings of  such  a  Muslim  but  would alienate the entire sympathy of the Muslim community. Only a mad person  can do a thing like that or take such a suicidal step. According  to this  witness, the appellant had come to Guntakal where the witness stayed, gave him the pamphlet and went away.  Thus the  very short and summary manner in which the appellant handed over the pamphlet and went away clearly shows that  the story of the distribution of the pamphlet by the appellant  is a  complete myth. According to the witness he was  i11iterate and  he’ showed  the pamphlet  to P.W. 24 Thirupati Rao  who read  it out to him. P.W. 24 does not say that P.W.  36 Abdul Jabbar had come to him with the pamphlet or that he had read out its, contents and explained the same to the witness. It was suggested by Mr. Shiv Shankar for the contesting respondent that it is possible that the appellant may not  have known  that the  witness was a Muslim. We are, however, unable  to accept this contention because according to the  witness he was an Ayurvedic Medical Practitioner and an important  person in  Guntakal. It  is also  difficult to believe  that   the  appellant  would  distribute  pamphlets indiscriminately without  trying to  find  out  whether  the persons to  whom the  pamphlets were  given were  Muslims or not. P.W.  36 is  also a staunch supporter of the contesting respondent. Thus  the evidence  of  this  witness  does  not appear to be worthy of credence.      Thus  on   a  consideration  of  the  evidence  of  the witnesses  mentioned  above,  we  are  satisfied  contesting respondent has  not proved that any pamphlet was distributed by the  appellant personally  to P.Ws.  24, 25,  33 &  36 in

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Guntakal or  to any other person for that matter. In view of our finding  that the  contesting respondent  has failed  to prove this  part of the case it is not necessary to refer to the evidence  led by  the appellant  which is  of a negative character. Reference  may be made to the evidence of R.W. 28 who is a Labour Leader and whose evidence shows that no such pamphlet was  ever distributed by the appellant. The witness states that  he is  a senior  stenographer attached  to  the D.M.O., Southern  Railway and  is also the Assistant General Secretary of  one of  the Unions of the Railway employees at Guntakal. The  witness on  being shown the pamphlet Ext. A-l emphatically denied  that any such pamphlet was given to him or was distributed by or on behalf of the appel- 490 lant in the whole of the railway colony which consists of as many as  6000 to  8000 voters.  Indeed if  the appellant had distributed the  pamphlets with  a view  to secure  votes on communal grounds, he would not have missed to distribute the pamphlets to  the voters  in the  Railway colony and if this was done  the witness  would have  undoubtedly come  to know about it.  This is  undoubtedly  an  intrinsic  circumstance which supports the case of the appellant that no pamphlet of the type of Ext. A-1 was ever distributed in GuntakaI.      Apart from  this, we may overemphasize even at the risk of repetition  that  there  are  two  important  infirmities appearing in  the evidence  led by the contesting respondent on the  charge of  distributing the  pamphlet Ext.  A- l  at various places  which are sufficient to prove the falsity of the charge.  In the  first place the evidence of P. Ws. I to 4, 8, 22, 24, 33 and other witnesses discussed above clearly discloses that  the contesting  respondent had  come to know not only  during the  election but  even a  few days  before polling that  such a pamphlet like Ext. A-l was in existence and was  also shown  to the  contesting  respondent  by  the witnesses mentioned  above and he was also plainly told that this pamphlet  was distributed  by the appellant personally. In spite of this neither the contesting respondent mentioned these facts  in his  petition giving the full details nor in the material  particulars nor did he take any action against the appellant  by reporting the matter about the pamphlet to the authorities  concerned. He  did not  disclose this  fact even to  his own  Congress organization  although this was a matter  which   on  his  own  showing  ruined  his  election prospects and  in all  probability the  Congress should have been informed  about this  fact. Mr.  Shiv Shankar appearing for the  contesting respondent  realized the  weight of this circumstance  which   went  to   falsify  the  case  of  the contesting respondent and submitted that the inaction on the part of  Sultan was  due to  the fact that he was advised by his lawyers  not to take any action in the matter. Sultan as no doubt  deposed to  this effect in his evidence. Indeed if this was  a fact  then we  should  have  expected  that  the contesting respondent  should have given this explanation in his election petition or should have examined the lawyer who had given  him  such  an  advice.  Secondly,  even  if  this explanation be  accepted there  does not  appear to  be  any reason  why   the  contesting  respondent  should  not  have mentioned the  names of the persons who had told him that an offensive pamphlet  had been  distributed  to  them  by  the appellant, in  his petition  or in  the material particulars when Sultan  was definitely  informed of  those facts. These two infirmities, apart from other defects, are sufficient to dislodge the  case of  - the  contesting respondent on issue No. 26,  and lead  us to the inevitable inference that these facts were  not true  and were  clearly an after-thought and

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had been  introduced for  the first  time  in  the  evidence through the aid and support of purely partisan witnesses.      Lastly it  was also  urged by  Mr. Shiv Shankar learned counsel for  the contesting  respondent that the evidence of P. W.  11 clearly shows that the pamphlet in question was in existence  during   the  election.  The  learned  Judge  has disbelieved the  evidence of  this witness as being based on hearsay. The  witness alleges  to have received the pamphlet from his  wife who  was not  examined as a witness. Thus the very 491 source from  which he  is said  to  have  got  the  pamphlet disappears and  that being  an integral part of his evidence we find  it extremely unsafe to rely on the evidence of this witness and  fully agree  with  the  reasons  given  by  the learned Judge for disbelieving this witness.      Mr. Shiv  Shankar learned  counsel for  the  contesting respondent submitted  that the evidence shows that pamphlets like Exts.  A-70 to  A-78 were  undoubtedly printed  by  the contesting respondent  and they  contain  the  name  of  the Printing Press.  He argued that if the contesting respondent would have  printed the pamphlet Ext. A-l then he would have mentioned the  name of  the Press.  We  cannot  accept  this argument because the pamphlet is so offensive in nature that any person  who printed the same would never try to disclose publicly the  name of  the Press  lest action  in law may be taken against the Press.      It was  then contended  that the  contesting respondent being a  Muslim is  not likely  to say  such  offensive  and communal things  against his  own community.  This is also a matter  of   pure  speculation.  Various  persons  react  to different circumstances in different ways and if a person is motivated or  animated by  a particular purpose he can go to any length  to achieve his end. Therefore the mere fact that the contesting  respondent belonged  to the Muslim community cannot by  itself exclude  the  possibility  of  his  having circulated the  pamphlet Ext.  A-l and  printing it so as to use it  as a  powerful instrument  against the  appellant by putting  the   blame  on   him.  The  contesting  respondent undoubtedly owns a Press and if he wanted to do such a thing there was  nothing to prevent him from achieving his object. These are speculative matters and in the view we take of the evidence led  by  the  parties  in  this  case,  it  is  not necessary for  us to give a clear finding. as to who printed the pamphlet  in question.  All  that  is  necessary  to  be determined in  view of  the pleadings  of  the  parties  was whether  the   pamphlet  in  question  was  printed  by  the appellant or  distributed by  him personally. The contesting respondent has not adduced any satisfactory evidence on this point whereas  the appellant  has through his evidence which is of a negative character shown that the probabilities were that the appellant had not distributed this pamphlet Ext. A- l .      On a  careful consideration  of the entire evidence and circumstances of  the case, whether we apply the standard of proof  by  virtue  of  the  benefit  of  doubt  or  that  of preponderence of probabilities the conclusion is inescapable that the  contesting respondent  has  failed  to  prove  his allegations regarding  the payment  of  bribe  contained  in issue No.  7 and  the distribution  of the  pamphlet by  the appellant personally  comprised in issue No. 26. The learned Judge in  accepting the  case of  the contesting  respondent overlooked   certain    fundamental    features,    inherent improbabilities,  intrinsic   infirmities,  the   weak   and interested nature  of the evidence and other facts, which we

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have fully  elaborated in  our judgment. We, therefore, hold that the  appellant Venkata  Reddy was  not  guilty  of  any corrupt practices  as alleged  by the contesting respondent. In these circumstances we are not in a position to allow the judgment of the High Court to stand. 492      The appeal  is accordingly allowed and the order of the single Judge declaring the election of the appellant Venkata Reddy void and setting aside the same is hereby quashed. The appellant would be 1 entitled to his costs throughout. V.P.S.                                        Appeal allowed 493