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PETITIONER: KANHAIYALAL

       Vs.

RESPONDENT: MANNALAL & OTHERS

DATE OF JUDGMENT23/03/1976

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

CITATION:  1976 AIR 1886            1976 SCR  (3) 808  1976 SCC  (3) 646  CITATOR INFO :  R          1977 SC 813  (13)  R          1978 SC 351  (15)  RF         1985 SC 236  (63)

ACT:      Representation  of  the  People  Act,  1950-S.  123(4)- Corrupt practice-Degree  of  proof-Election  dispute  not  a private feud.

HEADNOTE:      Respondent No. 1, an elector in the constituency in his election petition alleged that the appellant, the successful candidate,  got   printed  and   published  and   personally distributed on  a large  scale throughout the constituency a pamphlet containing  statements in  relation to the personal character or  conduct of  one of  the candidates, reasonably calculated to  prejudice the  prospects of his election, and thereby committed  the corrupt  practice under  s. 123(4) of the Representation  of People  Act,  1950.  The  High  Court allowed the election petition.      Allowing the appeal- ^      HELD  :  (1)  (a)  The  allegations  mentioned  in  the document related  to the  personal character  and conduct of one of  the candidates  and were  reasonably  calculated  to prejudice the prospects of his election. If the distribution of the  same by  the appellant was established and if it was also established  that the  statements of facts therein were false and  that the  appellant either  believed them  to  be false or did not believe them to be true, he would be guilty of corrupt practice under s. 123(4) of the Act. [815 E-G]      (b) The charge of electoral corrupt practice being of a quasi-criminal character, the onus on an election petitioner is heavy as if in a criminal charge. The allegations must be established beyond  reasonable doubt  to the satisfaction of the court by independent and unimpeachable evidence. [817 G- H]      2.(a) There  is no  doubt  that  the  pamphlet  was  in existence prior to the date of poll. [817 A-B]      (b) The High Court committed a serious error in linking up the printing of the document allegedly at the instance of the appellant,  for which  there was no evidence whatsoever,

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with the  distribution of  the same  by the appellant in the constituency. It  further committed  an error  of law in not dealing with the two matters of printing and its distribuion separately and independently. [819 F-H]      (c) The  High Court did not adopt a uniform standard in appreciating the evidence of the witnesses of the contending parties. Nor  was it right in its conclusion that the charge of  distribution  of  the  pamphlet  by  the  appellant  was established  against   him.  While   one  of   the  defeated candidates  took   care  to  prepare  a  panchnama  for  the distribution of  the offending pamphlet by the agents of the appellant,  and   lodged  a  complaint  with  the  returning officer, there  was no documentary evidence, no complaint or service of  lawyers’ notice or preparation of a panchnama in regard to  the distribution of the pamphlet by the appellant himself. It  is absurd  to suppose that the respondent would not  have  moved  in  the  matter  when  the  appellant  had personally distributed  the pamphlet. The petitioner had not been  able   to  establish   the   allegations   about   the distribution of  the pamphlet  by the  appellant before  the election. [820 B-F]      3 (a) An election dispute is not a private feud between one  individual  and  another.  The  whole  constituency  is intimately involved  in such  a dispute.  Shaky and wavering oral testimony  of a  handful of  witnesses cannot still the dominant voice of the majority of the electorate. [826 A-B] 809      (b) It  is difficult  to hold  that a serious charge of this nature is established on the mere oral testimony of the petitioner’s witnesses. [825 E]      (c) Oral  testimony will  have to  be judged  with  the greatest care  and an electoral victory cannot be allowed to be  nullified  by  a  mouthful  of  oral  testimony  without contemporaneous assurance  of  a  reliable  nature  from  an independent source. [825 H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 870 of 1974.      From the  Judgment and  Order dated  the 7-3-74  of the Madhya  Pradesh   High  Court  (Indore  Bench)  in  Election Petition No. 9 of 1972.      B. R. Nahata and Rameshwar Nath for the Appellant.      Hardayal Hardy and S. K. Gambhir for Respondent No. 1.      S. S.  Khanduja and  Sushil Kumar  Jain for  Respondent      No. 4.      Ex parte; Respondent Nos. 2 and 3.      The Judgment of the Court was delivered by      GOSWAMI, J.-This is an appeal under section 116A of the Representation of the People Act, 1951, against the judgment of the  High Court of Madhya Pradesh in an election petition filed by an elector named Mannalal (respondent No. 1 in this appeal), hereinafter  to be described as the petitioner, for setting aside  the election  of  the  appellant  Kanhaiyalal Nagori.      The constituency  was Javad  Constituency of the Madhya Pradesh Legislative  Assembly. The  poll took place on March 8, 1972 and the result was declared on March 12, 1972. There were four  contesting candidates.  The appellant Kanhaiyalal who was  a Congress  candidate and  respondent No.  1 in the election  petition,  obtained  25,594  votes.  Virendrakumar Saklecha  (for   brevity  Saklecha)  who  was  a  Jan  Sangh candidate, being  respondent No.  4  both  in  the  election

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petition as  well as  in this  appeal, obtained  the  second highest number  of votes  viz., 23,064.  Ravishankar  Sharma (respondent No.  2) who  was a Socialist candidate, obtained 1300 votes  and Jagmohan  (respondent No.  3) an independent candidate obtained  1,104 votes.  The  last  two  candidates forfeited their  security deposit. The appellant Kanhaiyalal was declared elected by a margin of 2,530 votes.      Saklecha was  being  returned  from  this  constituency since 1957  having won  the election in that year and in the next two  successive  years  1962  and  1967.  In  the  1967 election wherein  he won,  there was  an  election  petition against him.  The High  Court set  aside the election on the ground of  certain corrupt  practices, but  this  Court  set aside the judgment of the High Court in January 1972.      In the  year 1968, Congress Government was defeated and Samyukat Vidhayak Dal (briefy S.V.D.) came into power in the State. Saklecha  was  the  Deputy  Chief  Minister  in  that Government  from   July  1967  to  March  1969.  The  S.V.D. Government fell in 1969.      As stated  earlier the  election of  the appellant  was challenged by  an elector  Mannalal by  an election petition filed on April 24, 1972, 810 alleging corrupt  practices  under  section  123(4)  of  the Representation of  the People  Act (briefy  the  Act)  which reads as follows:-           123. "The  following shall be deemed to be corrupt      practices for the purposes of this Act:-           x              x              x              x           (4)  The publication  by a  candidate or his agent                or by any other person, with the consent of a                candidate  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."      It may  be appropriate  to describe  from the  election petition  itself   the  allegations   against  the  returned candidate, Kanhaiyalal Nagori:           "5. That  the election  of the returned candidate,      respondent No.  1 is liable to be declared void and set      aside on the following grounds:-           (A)  That  the  respondent  No.  1  got  published      through Block  Congress Committee,  Javad,  a  pamphlet      entitled "Saklecha Ke Karyakal Par Ek Nazar" and it was      distributed throughout  the Javad  constituency by  the      respondent No.  1 himself and by his workers and agents      with his  consent. The  said pamphlet  was  printed  in      Shriman Press,  Neemuch and the signatories to the said      pamphlets are  all members and important office bearers      of the  Congress party and who were actively conducting      the  election  propaganda  of  the  respondent  No.  1.      Respondent No. 1 was official Congress candidate and he      was   also   Provincial   Congress   Committee   member      representing Block Committee Javad and President Janpad      Panchayat Javad.  The said pamphlet is in Malvi dialect      and was  distributed on  a large  scale throughout  the      constituency by  the candidate  himself and through his      workers and  agents by  his consent  and connivance. By      the said  pamphlet the  respondent No.  1  through  his      agents Parasram  Agarwal  of  Singoli,  Chosarmalji  of

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    Singoli,  Bhanwarlal   Badolia  of  Kadwasa,  Ghanshyam      Patidar of  Neemuch. Vijaychankar  Sharma  of  Neemuch,      Shankarlal  Bhatevara,  President  of  Block  Congress,      Javad,  and   Dheeraj  Vyas,   Secretary,  Block  Yuvak      Congress Javad,  published statements of fact which are      totally false  and which  the respondent  No. 1 and his      said agents  believed to be false or did not believe to      be true,  in relation  to  the  personal  character  or      conduct of  the  respondent  No.  4,  being  statements      reasonably calculated to prejudice the prospects of 811      the election  of respondent  No. 4.  The said  pamphlet      contained allegations  against the  respondent  No.  4,      which are  totally false to the knowledge of respondent      No. 1  and  his  said  agents  and  other  persons  who      distributed the  said pamphlet.  The aforesaid pamphlet      (an English  rendering) reproduced  below  (sic)  false      allegations against  the personal character and conduct      of respondent No. 4:                          "Ex. P-1"      INDIRA GANDHI JINDABAD/PRAKASHCHAND SETHI JINDABAD Election Symbol             Birds Eye View of Saklecha’s Regime Dear Villagers,      This is the election period. In our constituency voting shall be  on 8th,  the Wednesday. We have been returning the Deepakwala-Saklecha for  the last  15 years  and he has been sitting in  the Assembly for the last 15 years. Saklecha has remained Deputy  Chief Minister  but did  no work.  He  only served his  interest. You have read this news in ’Nai Dunia’ newspaper that  Saklech ahas  devoured lakhs  of rupees from dacoits. During his period of rule he has tortured people by selecting them.  He troubled  people indiscreetly.  Saklecha has ploughed  thousands of  bighas of  land on  the Sukhanad side,  when  people  are  not  getting  land.  Saklecha  has ploughed the  grass land  of Bhutiakhal  of  Baval  and  has installed electric  water pump  on the Khal, when people are starving for  water for  irrigation of their land. This is a matter for consideration that what has been done by Saklecha for the villagers.      He filled  his belly.  You gave him opportunity to work for 15  years, but he did nothing. Arey? you think about it, that if you would have given water to a Babool tree, then it would have  also given you a bleesing, but Saklecha has done nothing in 15 years. On our side we have a great scarcity of water, if  he would  have desired,  then at  the time of his Govt. he  would have got Tube wells prepared. But he did not think about  it as  for him  there is a water pump fitted at Bhutia Khal  and there is road for him to go to his home. He has helicopter  and aeroplane  for his travel. He talks only in the  air. In Saklecha’s Govt. they purchased Dodge Chasis in place  of Mercedez and did much bungling with (sic) which God alone  knows. He  has devoured  the land  of one Baba of Javad area.  This is known to the whole world. Therefore you have to  consider it and be not deceived this time otherwise we will lay behind for other five years. Our area is lagging behind. This  is a matter for you to remember. Therefore for the development  of the  area and for removal of shortage of water you have to put your seal on the Cow & 812 Calf symbol  of Kanhaiyalal  Nagori and  make  him  succeed. Remember this.  Our interest  lies  in  this.  You  have  to strengthen the hands of Indiraji. Do not forget it.      You have to put your seal this time on Cow and Calf.

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Parasram  Agarwal,   Singoli,   Vice-President   of   Janpad Panchayat Javad,  Chosarmal  Sarpanch,  Panchayat,  Singoli, Bhanwarlal Badolia,  Sarpanch, Panchayat  Kadwasa, Ghanshyam Patidar, Pleader,  Neemuch (Janakpur),  Vijayshankar Sharma, Neemuch (Mahudia)  Shankarlal  Bhatevara,  President,  Block Congress  Javad,   Dheeraj  Vyas,   Secretary,  Block  Youth Congress. ___________________________________________________________ Best place  for Printing-Shriram Printing Press, in front of Jaju Bhawan, Neemuch."           "5(B). The  said pamphlet  was distributed  by the      respondent No.  1 and  with  his  consent  and  in  his      presence and  under his  direction by  his  agents  and      workers who  were accompanying  him in  the jeep  while      touring the  constituency the  particulars of which are      given below:-      Name of the person            Place          Date      who distributed      Pamphlet. ___________________________________________________________      1. Kanhaiyalal Naogri         Newas          2.3.72      2. Shankarlal Bhatevara       Jawi           2.3.72         of Javad,                  Thadoli        2.3.72         President, Block           Lasur          2.3.72         Congress, Javad.           Daroli         2.3.72      1. Kanhaiyalal Nagori         Diken      2. Dheeraj Vyas Mantri        Ratangarh         of Ratangarh,              Carwada      3.3.1972         Block Yuvak Congress,      Alori         Javad.                     Kabriya      3.3.1972                                    Singoli      3.3.1972 ___________________________________________________________      5(C). The  said pamphlet  was also distributed with the consent of the respondent No. 1 by the following persons the particulars whereaf are as follows:- ___________________________________________________________           Name of the person       Place          Date ___________________________________________________________      1. Ghanshyam Patidar          Village        25.2.72.      2. Jagdishchandra Airen       Dhaneria      3. Shivlal Rawat,             and Jawi         Advocate of Neemuch.       Tehsil      4. Parasmal s/o Kanhaiyalal   Nagori Neemuch ____________________________________________________________      The said  persons were active workers and agents of the respondent No. 1 and the said Parasmal is his son and 813 agent. The  said persons distributed the said pamphlet which they were carrying on for the respondent No. 1.           The statements  contained in the said pamphlet are      false and which the said persons and the respondent No.      1 believed to be false and did not believe to be true.           5(D). That  the respondent No. 1 through the Block      Congress Committee Javad published an election bulletin      dated 6.3.1972  under the  caption of  ’Congress  Tatha      Anya Dalo  Kee Sachhi  Hakeekat’ and got it distributed      free  on   a   large   scale   throughout   the   Javad      constituency. In  this buletin  there is a reference to      an interview with the Congress candidate respondent No.      1 in  the form  of questions and answers. The questions      put to  him and  answers  given  by  him  included  the      following question-answers":      It is  not necessary to reproduce what was published in the  "Haquikat"   particularly   because   the   charge   of distribution of  the same  by Kanhayalal on 6th March, 1972,

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in various  places such as Morwan, Daroli, Diken, Ratangarh, Singoli and  Jhantla, is  not being  pressed  by  Mr.  Hardy although evidence was led to that effect in the trial court.      In the  affidavit annexed to the election petition, the petitioner stated as follows:-      "(c) The  information regarding  distribution has  been received as detailed below:- ____________________________________________________________      Name of the person            Place of corrupt practice                                    committed and para of                                    the petition ____________________________________________________________ 1. Modidas Bairagi, village Newas  . .  .  Newad     5(B) 2. Madanlal Sharma, village Jawi   . .  .  Jawi      5(B)(C) 3. Onkarlal Khati, village Thandoli. .  .  Thandoli  5(B) 4. Ramniwas Patidar, village Lasoor. .  .  Lasoor    5(B) 5. Mishrilal Tailor, village Diken . .  .  Diken     5(B)(D) 6. Lakshminarayan Latha, vill Ratangarh .  Ratangarh 5(B)(D) 7. Shankerlal Cheran, vill Garwada Aloni.  Garwada   5(B)                                            Aloni 8. Bhanwar Singh, village Kabriya . . . .  Kabriya   5(B) 9. Bapalal son of Bhanwarlal, vill Singoli Singoli   5(B)(D) 10.Keshar Singh, village Dhaneria . . . .  Dhaneria  5(C) 11.Khemraj Moti Jat, village Morwan . . .  Morwan    5(D) 12.Balooram Dhakar, village Jhatla . . .   Jhatla    5(D)" ____________________________________________________________      The petition  was contested  only  by  Kanhaiyalal.  He denied the  printing, publication  and distribution  of  the aforesaid two  pamphlets either by himself or by others with his consent. 814 On the  pleadings the  following issues  were raised  in the trial:-           "1. Whether  respondent No.  1 Kanhaiyalal through      the Block  Congress Committee, Javad, got published the      pamphlet  (Saklecha   Ke  Karyakal  Par  Ek  Nazar)  as      reproduced in para 5(A) of the Petition?           2(a) Whether respondent No. 1 Kanhaiyalal and with      his consent,  in his  presence and  under his direction      his agents  and workers  named in paragraph 5(B) of the      petition also  distributed the  said  phmphlet  at  the      places  and   on  the   dates  mentioned  in  the  said      paragraph?           (b)  (i)   Whether  the  said  pamphlet  was  also      distributed  with   consent   of   respondent   No.   1      Kanhaiyalal by  the persons  at the  places and  on the      dates mentioned in paragraph 5(C) of the petition?           (ii) Whether  the persons named in paragraph 5 (C)      of the  petition were  active workers and agents of the      respondent No. 1 ?           3. Whether  the said pamphlet contained statements      of facts  which were  false and/or which the respondent      No. 1  and his  alleged  agents  and  workers  did  not      believe it to be true ?           4(a) Whether  respondent No. 1 Kanhaiyalal through      the Block  Congress  Committee,  Javad,  published  the      bulletin as reproduced in para 5(D) of the petition and      also got  it freely distributed on a large scale and on      the dates mentioned in para 5(d) of the petition ?           (b) Whether  the statement  of facts  in the  said      bulletin was  false and/or  which the  respondent No. 1      did not believe it to be true in regard to the personal      character and conduct of respondent No. 4 ?           (c) Whether  the said  statement was calculated to      prejudice the  result of the election of respondent No.

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    4 ?      5. To what relief the parties are entitled to?"      The trial  judge answered  the first question in favour of the election petitioner, issue No. 2(a) also in favour of the petitioner except at the places Newad and Kabriya, Issue No. 2(b)(i),  2(b)(ii) and  Issue No.  3 in  favour  of  the petitioner, Issue  No. 4(a) also in favour of the petitioner except at  the places,  Dadoli, Diken and Jhantia, and Issue No. 4(b) and (c) also in favour of the petitioner. The trial judge  answered  Issue  No.  5  holding  that  the  petition deserved to be allowed.      Mr. Nahata,  who appeared  on behalf  of the appellant, the returned  candidate, has  addressed us with reference to all the  issues that  were held  against him. Mr. Hardy, the learned counsel  on behalf  of the  petitioner (respondent), however, did not press the charges 815 with regard  to the distribution of "Haquikat" (Ex.P-13). He also  did   not  press   the  charges  with  regard  to  the distribution of  Ex.P-1 by  agents and  by  workers  of  the returned candidate  with his  consent,  as  alleged  in  the election petition,  some of which have even been held in his favour by the High Court. He, however, submits that pamphlet Ex.P-1 is  a false  and  libellous  document  affecting  the personal character  or conduct  of the respondent, Saklecha, and so  far as  the  same  was  distributed  by  Kanhaiyalal personally at  Jawi and  Thadoli on  2nd  March,  1972,  the charges have  been fully  established and  this Court should not interfere  with the findings of the High Court in favour of the  appellant. Mr.  Khanduja appearing  on behalf of the respondent, Saklecha, adopted the submission of Mr. Hardy in toto.      Before we proceed further we should observe that in the trial the  petitioner produced  evidence to  prove  all  the allegations mentioned in the election petition by exaamining as many  as 42  witnesses including himself and by producing relevant  documents.   The  appellant   also  gave  rebuttal evidence with regard to all the charges levelled against him by examining 21 witnesses including himself and by producing various documents.      In this  appeal we  are concerned with only one species of corrupt  practice contemplated  in section  123(4) of the Act. Section  123(4) consists  of  three  types  of  corrupt practices, namely  (1) the  publication of  an offending  or incriminating statement  by a  candidate, (2)  by his  agent within the meaning of the Explanation (1) to section 123 and (3) by any other person with the consent of the candidate or his election agent. We are not concerned in this appeal with the types  in (2)  and (3) in view of the stand taken by Mr. Hardy and Mr. Khanduja.      We may  first examine  whether Ex.P-1  comes within the mischief of  section 123(4).  The allegations  mentioned  in Ex.P-1, if  false, and believed to be so, or not believed to be true,  would come  within the mischief of section 123(4). We have  gone through  the document  and we  are clearly  of opinion that  the  allegations  mentioned  in  the  document relate to the personal character and conduct of Saklecha and are reasonably  calculated to  prejudice  the  prospects  of Saklecha’s election.  If the  distribution of  the  same  by Kanhaiyalal is  established and  if it  is also  established that  the   statements  of   facts  therein  are  false  and Kanhaiyalal either  believed them  to be  false or  did  not believe them  to be  true, he  will  be  guilty  of  corrupt practice under section 123(4) of the Act.      Since the  pamphlet on the face of it is shown as being

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printed at Shriram Printing Press, Neemuch, evidence was led by the  petitioner by  examining Harishankar  (PW  32),  the proprietor  of   the  Press,   who  produced   the  register containing the  printing orders.  He stated  that during the last General  Elections 5000  copies of  the  pamphlet  like Ex.P-1 were printed in his Press. He was, however, unable to state who  had come  to place the order as he was indisposed and his  son Shivshankar  took the  order. The  entry in the register also  was not  made by him but was made by his son, Shivshankar, who 816 was not examined in the case. From the entry in the register (Ex.P-14) it  appears that  on 24th February, 1972, Congress Committee Javad placed orders for printing of 5000 pamphlets with the  caption "Saklecha Ke Karyakal Par Ek Nazar". There is an  obvious  interpolation  in  the  entry  showing  that Ghanshyam Patidar  placed the  orders on behalf of the Block Congress Committee,  but the  witness could  not say who had made  this   interpolation.  He   could  not   identify  the handwriting in  the interpolation. The trial judge has noted the demeanour  of this witness stating that "it appears that he did  not intend  to stick  to any  particular answer  and tried to  change  his  version  as  and  when  he  found  it convenient".  The   petitioner  wanted   to  establish  that Ghanshyam  Patidar,  who  according  to  him,  was  actively working for  the Congress  went to the Press for placing the orders and later on even distributed some pamphlets with the consent of  Kanhaiyalal. It  is in  that context  that  this interpolation assumes  significance. We  are unable  to hold that on  the evidence of PW 32 the fact of Ghanshyam Patidar placing the  order is  established. There  was no attempt to examine the son who had personal knowledge about the placing of the  order. Even  so, we are satisfied that the pamphlets were printed in this Press but it is difficult to hold as to who placed  the orders  for printing. That this pamphlet was printed in  order to  advance  the  cause  of  the  Congress candidate and  to prejudice the interests of Saklecha cannot be in  doubt. Apart  from this the proprietor was prosecuted for  printing   this  pamphlet   for  contravention  of  the provisions of  section 127A  of the  Representation  of  the People Act,  and he  was convicted on his plea and sentenced to pay a fine of Rs. 50/-. We are, therefore, satisfied that the pamphlet  was printed in the Shriram Printing Press, but in the  absence of the evidence of Shivshankar we are unable to agree  with the  High Court  that Ghanshyam  Patidar  had anything to do with the placing of the orders or printing of Ex.P-1.      We must  next consider  as to  when this  document came into existence.  The register  of the  Press shows  that the order for Ex. P-1 was placed on 24th February, 1972, that is to say  about two  weeks before the pool and the allegations of its  distribution were on 25th February and on 2nd March, 1972. Having  come to  know  of  the  distribution  of  this offending pamphlet,  Saklecha complained  to  the  Returning officer by  a letter dated 26th February, 1972, by enclosing a panchnama  testifying to  the distribution of the pamphlet at Jawi.  Although it  is not  specifically established that this letter  was posted  on 26th  February, 1972, or that it was received  by post  by the Returning Officer, it is clear even from  the  application  on  behalf  of  the  respondent Kanhaiyalal  for   summoning  the   Returning  Officer  that Saklecha had  personally handed  over this  complaint to the Returning Officer  on 5th  March, 1972, which was definitely prior to  the poll.  There is  a further fact which has been established. Under  the instructions  of  Saklecha,  Hiralal

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Mehta, Advocate  (PW 1)  sent out  registered notices  dated 27th February,  1972, to  seven signatories  of the pamphlet (Ex.P-1), namely,  Parasram Agarwal,  Chosarmal, Bhanwarlal, Ghanshyam Patidar,  Vijayshankar Sharma, Shankarlal Batevara and Dheeraj  Vyas. Some  of the witnesses examined on behalf of the 817 respondent, Kanhaiyalal,  (RWs 5,  6 and 8) admitted to have received the  registered notices  of the  Advocate to  which they did not send any reply. The fact of denial by Ghanshyam Patidar (RW  1) is  not  of  much  significance.  There  is, therefore, no  doubt whatsoever  that the  pamphlet (Ex.P-1) was in  existence during  the election  period prior  to the date of poll on 8th March, 1972.      We are satisfied that 5,000 copies of the pamphlet were printed in  the Shriram Printing Press. Evidently these were printed for  the purpose of distribution in order to advance the cause  of the  appellant and  to harm  the interests  of Saklecha. We  are not  concerned in  this  appeal  with  the distribution of  the pamphlet  on 25th February, 1972. Since these pamphlets  were alleged  to  be  distributed  on  25th February, 1972,  not by  the appellant  himself but by other persons, the petitioner had also to establish consent of the appellant in  the distribution.  Although the High Court has held that  even consent  was established,  Mr. Hardy has not pressed his case regarding the allegation of distribution of the pamphlet on 25th February, 1972.      Mr. Nahata  submits  that  in  view  of  the  newspaper reports and  the Assembly  proceedings,  in  particular  the statements on  the floor  of the  Assembly on  a Vote  of No Confidence against  the  S.V.D.  Ministry  where  particular reference  had  been,  inter  alia,  made  in  severe  terms creating a  furore about  the activities  of Saklecha in his capacity as  the Deputy Chief Minister in-charge of the Home Department, any  person reading  these will  have reasonable belief that  the allegations in Ex.P-1 are true and at least not false.  It is also emphasised by counsel that at no time Saklecha ever  publicly contradicted  the  allegations,  nor took any action against the publishers.      Mr. Hardy  submits that  none of  the correspondents of the newspapers,  nor the  authors of the allegations whether made through  the Press  or on  the floor  of the  House, or through a  regular complaint, were examined by the appellant to make out even a prima facie case for reasonable belief of the truth  of the  wild  allegations  against  the  personal character and  conduct of  Saklecha. It  is submitted by Mr. Hardy that  the statements made on the floor of the Assembly are privileged  and they  are also privileged when published in the  authorised organs  under the order of the House, but to publish  these again  without the  authority of the House will not  be protected  by privilege under article 194(2) of the Constitution.      Section 123(4)  is a  punitive rule  against  character assassination of candidates during the period of election. A charge of  electoral corrupt  practices being  of  a  quasi- criminal character,  the onus  on an  election petitioner is heavy as  if in  a criminal  charge. The allegations must be established beyond  reasonable doubt  to the satisfaction of the court  by cogent  and unimpeachable evidence. That being the position  in law the petitioner will have to satisfy the court that the returned candidate had reason to believe that the allegations  in the offending pamphlet were false or not true. Even  assuming this ingredient is satisfied, since the charge may fail, if it is not established that the appellant himself distributed the offending pamphlet as

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818 alleged, we  will  immediately  address  ourselves  to  that aspect of the matter.      Before adverting  to the  evidence we have to take note of certain  factors. Ex  concessis, the  allegations of  the publication of the pamphlet (Ex.P-1) on 25th February, 1972, by the  workers and agents with the consent of the appellant have  to   be  held  as  not  established.  So  far  as  the distribution of the pamphlet on 25th February, 1972, at Jawi and at Dhaneria, two respective panchnamas were exhibited. A complaint enclosing  a copy  of the  panchnama regarding the distribution of  the pamphlet  on 25th  February, 1972,  was lodged before  the Returning  Officer and it was received by him prior  to the  poll although  the  exact  date  was  not proved. So far as the distribution of the pamphlet Ex.P-1 on 25th February,  1972, there  was, therefore,  both oral  and documentary evidence.  Even so,  since the appellant was not associated  with   the  distribution,   it  could   not   be established that  the distribution,  even if  it took place, was with  his consent.  The charges  relating  to  the  25th February, 1972,  were, therefore,  rightly abandoned  before us.      So far as, however, the distribution of the pamphlet on 2nd March,  1972, at  Jawi and Thadoli, which alone survives for consideration,  the petitioner relies entirely upon oral testimony and  the  court  will  have  to  be  cautious  and circumspect in accepting the same.      This Court  in Rahim  Khan v. Khurshid Ahmed & Ors.(1), dealing with  the oral  testimony in  election cases pithily observed at page 656 as follows:-           "We must  emphasize the danger of believing at its      face value  oral evidence  in an  election case without      the  backing   of  sure  circumstances  or  indubitable      documents. It must be remembered that corrupt practices      may perhaps  be proved by hiring half-a-dozen witnesses      apparently respectable  and disinterested,  to speak to      short simple  episodes such  as that  a  small  village      meeting took  place where  the candidates  accused  his      rival of  personal vices. There is no x-ray whereby the      dishonesty of  the story can be established and, if the      Court were  gullible enough  to gulp such oral versions      and invalidate elections, a new menace to our electoral      system would  have been  invented through  the judicial      apparatus. We  regard it  as extremely  unsafe, in  the      present climate  of kilkenny  cat election competitions      and partisan  witnesses wearing  robes of  veracity, to      upturn a  hard won electoral victory merely because lip      service to a corrupt practice has been rendered by some      sanctimonious  witnesses.   The  Court  must  look  for      serious    assurance,    unlying    circumstances    or      unimpeachable documents  to  uphold  grave  charges  of      corrupt practices  which might  not merely  cancel  the      election result,  but extinguish  many a  man’s  public      life".      Ordinarily this  Court will  be slow  to interfere with the findings  of the  High Court  regarding appreciation  of evidence except for good 819 and sufficient  reasons. Have we good and sufficient reasons to depart  from the  findings of the High Court ? Our answer is in the affirmative and we will set out the reasons:      (1) The  High Court while dealing with the distribution of the  pamphlet (Ex.P-1)  at Jawi  by Ghanshyam Patidar and others felt assured from "the subsequent conduct on the part of Virendrakumar Saklecha" in preparing panchnama (Ex.P-11),

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instructing Advocate,  Hiralal (PW  1) to  serve  registered notices (Ex.P-17) to the distributors of the pamphlet and in making  a  complaint  (Ex.P-18)  to  the  Returning  Officer enclosing a  panchnama.  The  High  Court  held  that  "this subsequent conduct  on the  part of  Virendrakumar  Saklecha naturally lends  corroboration  to  his  statement  and  the statements of  the petitioner’s  witnesses who  have deposed about the  publication and  distribution of this pamphlet on the dates referred to by them in their statements. Thus on a consideration of  the petitioner’s evidence I feel satisfied that  the  pamphlet  Ex.P-1  was  distributed  by  Ghanshyam Patidar, Jagdishchandra Airen, Shivlal Rawat and Parsamal in Jawi and Dhaneria as alleged in the petition."      The above  approach, which  is correct, particularly in an election  matter, was  totally lost  sight of by the High Court in dealing with the allegations of distribution of the pamphlet (Ex.P-1)  by Kanhaiyalal  at Jawi  and  Thadoli  on March 2,  1972. The High Court did not look for or adopt the same test  with regard  to the aforesaid distribution of the pamphlet (Ex.P-1).      (2) The  High Court  arrived at  a completely erroneous finding regarding the printing of the document Ex.P-1 at the instance of  Ghanshyam Patidar.  As shown earlier, there was no legal  evidence before  the High  Court on which it could come to  the conclusion that "the person who got this Ex.P-I printed in the Press of PW 32 Harishankar was none else than RW 1 Ghanshyam Patidar on behalf of the Javad Block Congress Committee". In  the absence  of any direct evidence from the press the  above finding cannot be sustained in law from the fact that  Ghanshyam Patidar  denied receipt  of and did not reply to  the registered  notice of the Advocate and that he denied his signature in a certain tour programme Ex.P-29.      (3) The High Court committed a serious error in linking up the  printing of the document Ex.P-1 by Ghanshyam Patidar at the  instance of  Kanhaiyalal  for  which  there  was  no evidence whatsoever  with the  distribution of  the same  by Kanhaiyalal in the constituency for holding:           "If the  respondent Kanhaiyalal had not in any way      been associated  with the  printing and  publication of      this pamphlet,  then he  would not have been one of the      persons who  would have  distributed this  pamphlet, as      alleged in paragraph S(B) of the petition". The High Court committed an error of law in not dealing with the two  matters of  printing of  the pamphlet  and  of  its distribution separately and independently. 820      (4) The  High Court did not adopt a uniform standard in appreciating the  evidence  of  the  witnesses  of  the  two contending parties.  For example, while RW 2 was disbelieved by the  High Court  holding "admittedly he was the pollining agent of  the  respondent  Kanhaiyalal  and  must  have  had sympathies for  him during  the  election  period",  polling agents of  the respondent  Seklecha did  not come  under the same hostile comment for rejecting their testimony.      (5) It  is manifest  that the  High Court  was  largely influenced by  its finding  that the pamphlet was printed by the Javad Block Congress Committee through Ghanshyam Patidar at  the   instance  of  the  appellant.  When  this  finding disappears, as  we have  shown above,  the  edifice  of  the judgment  cracks  and  it  is  no  more  a  matter  of  mere reappreciation by  us of  the evidence,  simpliciter, but of proper appreciation  by us of the evidence, simpliciter, but of  proper  appreciation  of  only  oral  evidence  produced regarding distribution  of the  pamphlet by  Kanhaiyalal  at Jawi and  Thadoli on  March 2,  1972, which  we will,  next,

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undertake.      Saklecha  took  care  to  prepare  panchnamas  for  the distribution of the offending pamphlets at Jawi and Dhaneria on 25th  February, 1972.  He instructed  his lawyer to serve registered notices  on the  signatories of the pamphlets and registered  notices  bear  the  date  27th  February,  1972. Seklecha lodged  a complaint dated 26th February, 1972, with the Returning Officer about the distribution of the pamphlet enclosing a  copy of  the panchnama prepared at Jawi on 25th February 1972.  This  was  quick  action  indeed.  All  this documentary evidence lands corroboration to the existence of the pamphlet  prior to the poll and even to its circulation. On the  other hand,  there is no documentary evidence of any complaint or  service of lawyer’s notice or preparation of a panchnama  regarding   distribution  of   the  pamphlet   by Kanhaiyalal Nagori  on 2nd  March, 1972.  It  is  absurd  to suppose  that   if  Kanhaiyalal   had  actually   personally distributed the  pamphlet at  Jawi and  Thadoli  the  matter would not  have taken  air and Saklecha would not have moved in the  matter. This  is particularly so, since, in the case of distribution  by workers  and other  persons, consent  of Kanhaiyalal was  necessary to establish the corrupt practice whereas  if  Kanhaiyalal  had  personally  distributed,  the charge would  have been  established without the requirement of proof of consent.      So far  as the  distribution of the pamphlet Ex. P-1 at Jawi on  2nd March, 1972, is concerned, we have the evidence of PWs.  2, 3,  4 and  5 on behalf of the petitioner and RWs 15, 16, 17 and 21 in rebuttal on behalf of the appellant.      Madanlal (PW  2), Nanalal  (PW 3),  Mohanlal (PW 4) and Ramshankar (PW  5) stated about distribution of the pamphlet (Ex. P-1)  by Kanhaiyalal  and Shankarlal  Bhatevara at Jawi Bazar on March 2, 1972.      There is  a significant  revelation in  the evidence of Madanlal (PW  2) which  the High Court has absolutely failed to consider.  According to  Madanlal he  did not  personally know  about  the  pamphlet  being  distributed  on  25th  of February, 1972,  at Jawi.  He also  did not  see a panchnama being prepared. He deposed only about the distribution 821 of the  pamphlet by  Kanhaiyalal and Shankarlal Bhatevara at Jawi about  five or  six days  before the date of poll. This would show  that he  was deposing  only with  regard to  the distribution of  the pamphlet  by Kanhaiyalal  on 2nd March, 1972. He stated in his evidence:           "I met  Saklecha the same day when I saw Ex.P-1. I      had a  talk with Saklecha regarding the pamphlet Ex. P-      1". He further stated that-           "this pamphlet was given to me by Kanhaiyalal....I      handed over  the same  pamphlet to  Saklecha which  was      given to me by Kanhaiyalal". If the  above statements  are true,  he met  Saklecha on 2nd March, 1972. In the way Saklecha reacted to the distribution of the  pamphlet on  25th February, 1972, his utter inaction with  regard   to  the   distribution  of  the  pamphlet  by Kanhaiyalal on  2nd March, 1972, is absolutely inexplicable. The absence  of  any  complaint  to  the  Returning  Officer against Kanhaiyalal  even after  receipt of  the information and the  pamphlet from  Madanlal would  go to  show that the entire allegation  regarding Kanhaiyalal’s  distribution  of the pamphlet  is an  after-thought to  reinforce the  charge against the  returned candidate.  In the  way Sakclecha  was following a  certain procedure  of  his  own  regarding  the alleged illegal  activities of  the appellant’s campaigners,

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there was  no reason  why a  panchnama would  not have  been prepared at  Jawi on 2nd March, 1972, when Madanlal informed him about  Kanhaiyalal’s distribution  of the pamphlet which was even handed over to him that very evening.      We find that Madanlal (PW 2) is contradicted by Nandlal (PW 3).  Although Madanlal,  who is the in formant about the distribution of  the pamphlet  by Kanhaiyalal at Jawi on 2nd March, 1972, denied the fact of the panchnama being prepared on 25th February, 1972, at Jawi, Nanalal (PW 3) stated:           "While  the   panchnama  was   under   preparation      Ramshankar, Madanlal  Tiwari, who has been examined to-      day, and two others had also come there". It is  difficult to  appreciate why  Madanlal had suppressed the fact  of his knowledge of the panchnama prepared on 25th February, 1972. It will be relevant to note here that in the affidavit annexed  to the  election petition,  Madanlal  has been shown  as the  informant regarding  the distribution of the pamphlet  at Jawi  on 25th  February as  well as  on 2nd March, 1972.  Madanlal, however,  in  his  evidence  disowns personal knowledge about the distribution of the pamphlet on 25th February,  1972. According  to Nanalal (PW 3) after the preparation  of   the  Panchnama  on  25th  February,  1972, Saklecha addressed  a meeting  in front  of his  shop by the public address  system. Madanlal (PW 3) also deposed that he only saw  once Saklecha addressing some persons assembled in front of  Nanalal’s shop  by the  public address  system. He further stated  that he handed over the pamphlet to Saklecha on that date. This falsifies his evidence regarding March 2, 1972. 822 Madanlal’s statement  about distribution  of the pamphlet by Kanhaiyalal to  him on  2nd March,  1972, is  open to  grave suspicion, rather smacks of padding.      Madanlal is  admittedly a member of the Jan Sangh party although, according  to him,  he is  not an  active  worker. Since his  evidence is  intrinsically unaceptable, it is not necessary to  refer to  the various  contradictions  in  his evidence. To  mention one  instance  only,  he  contradicted himself in  the cross-examination  when he stated that "some time before  the pamphlet  was given to me by Kanhaiyalal, I got another  copy of the same pamphlet from some boys in the village earlier  and that  was given  by me  to Saklecha.  I cannot say  if the pamphlet given to me by Kanhaiyalal is or is not still with him (sic)".      Nanalal (PW  3) deposed  to  the  distribution  of  the pamphlet at  Jawi on  25th February as well as on 2nd March, 1972. In  the course  of cross-examination he stated that he did  not   personally  tell   anyone  that  Kanhaiyalal  had distributed the pamphlet in the village. He did not have any talk with  Nanalal Agarwal  (the petitioner)  regarding  the pamphlet. He  further stated  that when  Kanhaiyalal  Nagori gave the  pamphlet to  him he was the only person present in his shop.  He admmitted that on the date of poll he acted as a Polling  Agent of Saklecha. If the same standard has to be adopted which  the High  Court has  done with  regard to the appreciation of  the evidence  of Shivlal Rawat (RW 2) whose testimony was rejected because he acted as the Polling Agent of Kanhaiyalal,  Nanalal’s evidence would have to be treated in the same manner. Even by the standard adopted by the High Court the testimony of this witness cannot be accepted.      Mohanlal Jain  (PW 4)  is the second grocer examined on behalf of  the petitioner. He deposed to the distribution of the pamphlet  on both the dates, on 25th February and on 2nd March, 1972.  He admitted  that he exhibited posters and put up banner of the Jan Sangh Party. He is, therefore, a highly

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interested witness.  He also  admitted that  he did not tell anyone  that   any  pamphlet   had  been  given  to  him  by Kanhaiyalal. His evidence also cannot be acted upon.      The  last   witness  examined   with  regard   to  Jawi distribution  is  Ramshankar  (PW  5),  a  real  brother  of Madanlal (PW 2). The evidence of Madanlal about distribution in Jawi  is that  the offending  pamphlet was distributed to all the  shopkeepers and  to also  those who  met  them.  It appears that  the Jawi  bazar has about eight or nine shops. Yet only  two shopkeepers, namely, Nanalal and Mohanlal Jain were examined  Madanlal  and  his  brother,  Ramshankar  are cultivators and  not shopkeepers  at Jawi  bazar. As against this the appellant examined two shopkeepers of Jawi, namely, Ratanlal (RW  15) and  Gordhanlal (RW  16), who  denied  the distribution of  the pamphlet  by  Kanhaiyalal.  Kanhaiyalal himself also  stated on  oath that he did not distribute the pamphlet  nor   accompanied  Shankarlal  Bhatevara  for  the purpose  of   distribution  of   the  pamphlet.   Similarly, Shankarlal Bhatevara (PW 8) also denied the distribution. It is not  even necessary to closely scrutinise the evidence of the appellant  and his  witnesses when we are satisfied that the  petitioner   has  not   been  able   to  establish  the allegations  about  the  distribution  of  the  pamphlet  by Kanhaiyalal at Jawi on 823 2nd March,  1972. We  are of  opinion that the High Court is not right  in its conclusion that the charge of distribution of pamphlet  by Kanhaiyalal  at Jawi  is established against the appellant.      This takes  us to  the distribution  of the pamphlet by Kanhaiyalal on  2nd March,  1972, at Thadoli. Onkarlal Khati (PW 9)  was the  informant  regarding  the  distribution  at Thadoli. According  to him about five or six days before the date of poll he was sitting with a few others by the side of the village  temple  when  he  saw  Kanhaiyalal  Nagori  and Shankarlal  Bhatevara   coming  to   them.  Amongst  others, Tulsiram (PW 7) and Bhanwarlal (PW 8) were also sitting with him. He stated that Kanhaiyalal told them that the Jan Sangh candidate was  being elected  for the last fifteen years and the constituency  was very  much handicapped  and that  this time the  Congress candidate  should  be  elected.  Then  he distributed the  pamphlet similar  to Ex.  P-1. The pamphlet was  distributed   both  by   Kanhaiyalal   and   Shankarlal Bhatevara. He  further stated  that about six days after the poll he  met Mannalal and talked to him about "the incorrect statement circulator in the form of pamphlet" which affected the  result  of  the  election.  In  the  course  of  cross- examination  he   stated  that  Kanhaiyalal  and  Shankarlal Bhatevara were not accompanied by any person on that day. He denied that  he was  a Jan Sangh worker. He did not preserve the pamphlet  which was  given to  him and  it was destroyed after he  had read  it. Two other witnesses are Tulsiram (PW 7) and  Bhanwarlal (PW  8)  to  corroborate  him  about  the distribution of  the pamphlet  by Kanhaiyalal and Shankarlal Bhatevara five or six days before the date of poll.      Amongst these Tulsiram was a Polling Agent for Saklecha at Thadoli  as has  been admitted  by Saklecha himself. This witness, however,  suppressed this  fact and  denied that he was a Polling Agent of Saklecha.      Bhanwarlal (PW  8) similarly  deposed that  five or six days before the date of poll when he and others were sitting in the  temple precincts  he saw  Kanhaiyalal and Shankarlal Bhatevara coming  to them  and after some canvassing both of them distributed pamphlets like Ex. P-1.      We are  invited to  rely on the above oral testimony to

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hold that Kanhaiyalal distributed the offending pamphlet.      Kanhaiyalal (RW  21) and  Shankarlal Bhatevara  (RW  8) have denied  the allegations.  The appellant  also  examined Mangilal  of   Thadoli  (RW  18)  to  state  that  Tulsiram, Bhanwarlal and  Onkarlal are  the Jan Sangh party workers at Thadoli. He  was admittedly  a person  who  accompanied  the distributors to  the village. There is thus practically oath against oath with regard to the distribution of the pamphlet by Kanhaiyalal at Thadoli.      To summarise  this part  of the  case, the  High  Court while  deciding   about  the   truth  or  otherwise  of  the allegations of  distribution of  the pamphlet by Kanhaiyalal at Thadoli,  as also  in other places, seems to have a large degree of assurance from its finding that the offending 824 pamphlet was  got printed  by Kanhaiyalal  through Ghanshyam Patidar. That  finding, as  shown above, no longer survives. We are now only left with the oral testimony of PWs 7, 8 and 9 regarding  distribution of  the  pamphlet  at  Thadoli  by Kanhaiyalal and  Shankarlal Bhatevara. These three witnesses are  pitted  against  three  others,  Kanhaiyalal  (RW  21), Shankarlal (RW  8) and  Mangilal  (RW  18)  stating  to  the contrary. Mangilal  was admittedly  in the  company  of  the distributors of  the  pamphlet  when  they  entered  Thadoli village. Mangilal  as RW  18 denies the visit of Kanhaiyalal to Thadoli.  Again PW 7 speaks with two voices regarding the day of  Kanhaiyalal’s visit  to Thadoli  for the  purpose of distribution of the pamphlet. He stated at first that it was ten or  twelve days before the poll and then said about five or six days before the poll.      Bhanwarlal  (PW   8)  saw  Kanhaiyalal  and  Shankarlal Bhatevara coming on foot and only heard the sound of vehicle coming near  the village.  PW 7  saw them  coming in a motor vehicle. They  were all  sitting together and even then they are  discrepant   as  to   how  Kanhaiyalal  and  Shankarlal Bhatevara came  there. PW  8 makes  a curious  statement  in cross examination:           "All those  who were  sitting by  my side had seen      the distribution  of pamphlets.  Besides them I did not      tell anyone about the distribution of pamphlets". It passes  one’s comprehension  why he  had to tell them. He also stated that-           "besides Shankarlal  and Kanhaiyalal  there was no      other person who accompanied them". On the  other hand,  according to  PW 7 Bhanwarlal Sutar and Mangilal Mahajan  accompanied them  when  they  entered  the village after parking the car outside.      Onkarlal (PW 9) stated in examination-in-chief:           "About six  days after  the polling I met Mannalal      in Neemuch  Dhan Mandi  where he enquired from me about      the result  of the election. I then told him as to what      was  the  result.  I  also  talked  to  him  about  the      incorrect  statement   circulated  in   the   form   of      pamphlet".      In the course of cross-examination he stated:           "The only  talk that  I had with Mannalal was that      the false  pamphlets had its effect on the election. At      that time I had no other talk with him".      Whatever be  the effect  of the  above statements which Mr. Hardy  wanted to explain away, it is clear that PW 9 did not  mention  at  all  that  he  had  told  the  petitioner, Mannalal, the  names of Kanhaiyalal and Shankarlal Bhatevara as distributing  the pamphlet at Thadoli. On the other hand, he referred to the only talk which he had about the 825

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effect of  the pamphlet. He also admitted that his talk with Mannalal was  only a casual talk. This is not the quality of evidence  we   expect  from   the  only   informant  of  the publication of the pamphlet at Thadoli.      We have referred to some of the above incongruities and inconsistencies in  the evidence  of PWs 7, 8 and 9 in order to show  how unsafe  it is  to rely merely on oral testimony which is not vouchsafed from any other safe source.      It is true that the High Court has relied upon the oral testimony of  the above witnesses but we express grave doubt if the  High Court would have based its decision to upset an election merely  on their  oral testimony if it had not come to conclusion that Kanhaiyalal had earlier got the offending pamphlet printed  at  the  Press.  The  latter  finding  had obviously its  decisive effect  on the  mind of  the learned trial judge.      We are  unable to  suppose that Saklecha would not know of such  illegal activities  of his opponent, if true. It is alleged that the offending pamphlets had been distributed by Kanhaiyalal in  a  number  of  places  in  the  constituency commencing from  March 2 and ending on March 6, 1972; in one case, even  in a bus stand, watched by the petitioner. It is impossible to  imagine that  such nefarious  activities,  if true, would  not reach the ears of Saklecha with his network of workers  and compaigners for the purpose of the election. Between March  2 and  March 8, no complaint had been made by Saklecha  or   by  anyone   regarding  distribution  of  the offending pamphlet by Kanhaiyalal. We are, therefore, unable to hold  that a serious charge of this nature is established on the mere oral testimony of the aforesaid three witnesses.      Before concluding, we may only refer to the petitioner, Mannalal’s evidence  to highlight how far oral testimony can go. Both  Kanhaiyalal and  Mannalal are residents of village Daroli.  It  is  the  evidence  of  Mannalal  (PW  42)  that Kanhaiyalal distributed  the offending  pamphlet Ex.  P-1 on 2nd March,  1972, at  Daroli to  him  and  to  many  others. Although we  are not  concerned with the distribution of the pamphlet by  Kanhaiyalal at  Daroli in  this appeal,  it  is absurd  that  Kanhaiyalal  would  choose  to  hand  over  an offending pamphlet  of this  nature to  Mannalal who  is  an active worker  of Jan  Sangh party  and  keen  supporter  of Saklecha  unless  he  foolishly  chose  to  create  evidence against  him.   It  is   true  that   the  charge  regarding distribution at  Daroli is  not pressed  before  us  but  we cannot close  our eyes to the extent to which the petitioner could go  in levelling  charges of  corrupt practice against the appellant.      Oral testimony,  therefore, will have to be judged with the greatest care and an electoral victory cannot be allowed to be  nullified by  a mouthful  of oral  testimony  without contemporaneous assurance  of  a  reliable  nature  from  an independent source.  The matter would have been different if there  had  been  an  immediate  written  complaint  to  the Returning Officer  against Kanhaiyalal  as had  been made in the case of his workers. 826      An election  dispute is  not a private feud between one individual and another. The whole constituency is intimately involved  in   such  a  dispute.  Shaky  and  wavering  oral testimony  of  a  handful  of  witnesses  cannot  still  the dominant voice of the majority of an electorate.      We  are,   therefore,  clearly   of  opinion  that  the distribution of  the pamphlet  (Ex. P-1)  by Kanhaiyalal  at Jawi and  Thadoli has not been satisfactorily established on the oral testimony of the witnesses.

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    It is,  therefore,  not  necessary  to  deal  with  the submission of  Mr. Nahata  as  to  whether  Kanhaiyalal  had reason to  believe that  the statements  of facts in Ex. P-1 were not false or that they were not untrue.      In the  result the appeal is allowed with costs in this Court as well as in the High Court. The judgment of the High Court  is   set  aside  and  the  election  petition  stands dismissed. P.B.R.                                       Appeal allowed. 827