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PETITIONER: KALAMATA MOHAN RAO

       Vs.

RESPONDENT: NARAYANA RAO DHARMANA & ORS.

DATE OF JUDGMENT09/11/1995

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) PARIPOORNAN, K.S.(J)

CITATION:  1996 AIR  535            1995 SCC  (6) 728  JT 1995 (8)   220        1995 SCALE  (6)254

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T J.S. VERMA. J. :      This  is   an  appeal   under  Section   116A  of   the Representation of  the People Act, 1951 (for short "the R.P. Act) by  the returned  candidate against  the judgment dated 18th December, 1991 by N.D. Patnaik, J. of the High Court of Andhra Pradesh  in Election  Petition No. 7 of 1990, setting aside the  election of  the appellant  to the Andhra Pradesh Legislative  Assembly   from   No.6   Pathapatnam   Assembly Constituency held on 22.11.1989. The appellant was candidate of the  Telugu Desam  Party while  respondent No. 1 Narayana Rao Dharmana was the Congress (I) candidate at the election. The appellant  polled 41,040  votes and was declared elected against respondent  No. 1  who obtained  40,766  votes.  The election petition was filed on several grounds including the corrupt practice  under Section  123(3) of  the R.P.  Act of appealing for  votes on the ground of his religion. The High Court has recorded a finding that the appellant is guilty of the corrupt  practice under Section 123(3) and on that basis the election  of the appellant has been set aside. The other grounds on  which the  election was challenged have not been held to  be proved  and, therefore,  reference  to  them  is unnecessary at this stage.      The only  question for  decision in  this appeal is the correctness  of   the  High   Court’s  finding  against  the appellant for  commission  of  the  corrupt  practice  under Section 123(3)  of the  R.P. Act.  The relevant  pleading of this corrupt  practice is  contained in  para (xxvii) of the election petition.  The gist  of the  pleading is  that  the appellant on  17.11.1989 got  pasted posters on the walls at several places  in the constituent which depicted the Telugu Desam Party  Supremo N.T.  Rama Rao  in  the  role  of  Lord Krishna worshipped by the Hindus as an incarnation blowing a conch shell, a sloka from Bhagwad Gita written at the top of the poster  and below  the photograph  of N.T.  Rama Rao his

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clarion call  to the voters to defeat the deceitful Congress which had  sold away  the nation.  The clear implication and the innuendo  of the poster was also pleaded in para (xxvii) of the election petition as under :      "........  It  is  further  respectfully      submitted that  the said poster depicted      the Telugu  Desam Supreme as an Avtar or      an incarnation  of God  who has appeared      on the soil of Andhra Pradesh to destroy      the  evil   and  save  the  people.  The      inscription  on  the  poster  as  stated      above  is  from  the  Bhagavadgita.  The      clear and  unambiguous impression  which      is left  on the  reader of the poster is      that the said Supreme of Telugu Desam is      an avatar  of Lord  Krishna. The bulk of      the electorate  are made to believe that      in voting  for  respondent  No.  1  they      would be  voting for  the Avatar  of God      who has  come to  destroy the  evil  and      save the  people and  that if  they vote      against  him,   they  would   be   doing      something against  the wishes of God and      would be  incurring the  displeasure and      wrath of  God. Such  posters were pasted      through out the constituency.  ."      A photograph  Ex.A-7 of the above poster proved to have been taken  by the photographer Chowdary Vaikuntarao (PW-14) was produced  as evidence  and the  other witnesses examined were Narayana  Rao Dharmana  (PW-1)  (election  petitioner). Miryabilli Ramagao  Naidu (PW-10),  Maddela Paparao (PW-11), Votti Mukhalingam  (PW-12) and  B. Ramana  (PW-13).  Another witness K.  Veerabhadra Rao  (PW-9) was  disbelieved by  the High Court  and, therefore,  we are  excluding his testimony from consideration.  It is  significant that no evidence was led in  rebuttal by the appellant who failed to examine even himself as  a witness  to deny  the allegations made against him. The  High Court  has accepted  the evidence  led by the election petitioner  and found  the alleged corrupt practice under Section  123(3) of  the R.P.  Act Proved  against  the appellant.      We have  been taken  though the evidence adduced in the present case  and find  no reason  to disagree with the High Court on the view it has taken of the evidence. The contents of the  poster pleaded  in the election petition are evident from the  photograph Ex.A-7.  The contents  of  that  poster unambiguously amount  to an  appeal on  the  ground  of  the religion of  the candidate  of the  Telugu Desam  Party, the appellant. The  clear meaning  of its  contents is that N.T. Rama Rao  is an  incarnation of God worshipped by the Hindus who is  seeking votes  for his candidate, the appellant, who is a  Hindu at  the election to conquer the evil in the form of the Congress Party; and for the sake of Hindu religion to which the  appellant belongs, the voters should vote for the appellant, candidate  of the Telugu Desam Party which is led by incarnation of God worshipped by the Hindus. This is what the poster  clearly meant  and this is how it was understood by the  voters. The  only question  for consideration now is the responsibility  of the appellant for the canvassing done by the medium of these posters.      There is  evidence led  of the  witnesses  examined  in support of  the election petition that the appellant himself got these posters pasted on the walls at different places in the  constituency  on  17.11.1989.  The  act  of  canvassing through the  medium of  these posters pasted on the walls at

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different places  in the  constituency has  been  attributed directly to the appellant himself by the PWs whose testimony has been  rightly accepted  by  the  High  Court.  There  is nothing  in   their  cross-examination  to  disbelive  their version. Moreover, there is no evidence in rebuttal thereof, inasmuch as even the appellant did not enter the witness box to deny  the allegations  made against  him. The  unrebutted evidence  led   in  support  of  the  election  petition  is sufficient to prove that the act of putting up these posters at different  places in the constituency as alleged has been duly proved.  As indicated  earlier,  the  contents  of  the poster amount  to an appeal by the candidate (appellant) for votes on the ground of his religion. An identical poster was similarly construed  also in  Mullapudi Venkata  Krishna Rao vs. Vedula Suryanarayana, 1993 Supp (3) SCC 504, even though in the facts of that case the responsibility of the returned candidate could  not be proved by evidence and his denial of the allegation  being accepted,  the allegation  of  corrupt practice in  that case  was held to be factually not proved. The position  in the  present case is different, inasmuch as the appellant’s  responsibility has  been held to be clearly proved.      For the above reasons, no infirmity can be found in the impugned judgment  of  the  High  Court.  Consequently,  the appeal fails and is dismissed with costs.