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PETITIONER: VIRENDRA KUMAR SAKLECHA

       Vs.

RESPONDENT: JAGJIWAN AND ORS.

DATE OF JUDGMENT22/03/1972

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH RAY, A.N. (CJ) GROVER, A.N. RAY, A.N.

CITATION:  1974 AIR 1957            1972 SCR  (3) 955  1972 SCC  (1) 826  CITATOR INFO :  E          1975 SC 968  (5)  R          1979 SC 234  (11)  D          1991 SC1557  (23)

ACT: Election  Petition--Corrupt practices under s. 123 (2),  (3) and  (4) alleged--Proof--Affidavit in support  of   Petition alleging   a  fact  on  information  must  give  source   of information.  There is no inconsistency between form  25  of Conduct of Election Rules, 1961 and Rule 7 of Mdhya  Pradesh High Court Rules.

HEADNOTE: The appellant and the three respondents were candidates  for election  to  the  Madhya Pradesh Assembly  at  the  general election  held in 1967.  The appellant was successful at  he election,  Respondent no.  1 chatlenged his election  in  an election  petition charging him with corrupt practices.   It was alleged by the election petitioner that in speeches made to the voters on the basis of religion within the meaning of s. 123 (3) of the Representation of the People Act 1951, the voters were threatened divine displeasure within the meaning of  s.  123  (2), ad also statements  were  made  about  the election  petitioner within the meaning of s. 123 (4).   The affidavit  in support of the petition did not  disclose  the source  of  information whereby respondent  no.  learnt  the speeches  constituting  corrupt practice.   The  High  Court however believed the oral evidence produced on behalf of  he respondent,  disbel  eved  that produced on  behalf  of  the appellant and allowed the election petition.  Appeal to this Court was filed under s. 116-A of the Representation of  the People Act, 1951. Allowing the appeal, HELD : (i) The affidavit filed by the respondent along  with the  election  petition  did  not  disclose  the  source  of information  in respect of , speeches alleged to  have  been made  by the appellant.  Although the respondent claimed  in his  evidence that he came to know of the  speeches  through notes  made by certain persons who heard them,  neither  the notes  nor these persons were produced in Court.   The  non-

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production  of the notes and the persons who made them  must lead  to  an irresistible inference against  the  respondent that  the same would not have supported  respondent’s  case. [959 H; 962 A-B] Rule  7 of the Madhya Pradesh High Court Rules  states  that every  affidavit  should  clearly  express  how  much  is  a statement  and declaration from knowledge and how much is  a statement made on information or belief aid must also  state the source or ground of information belief’ with  sufficient particularity.   Form  No.  25 of ’he  Conduct  of  Election Rules, 1961 requires the deponent of an affidavit to set out which statements are true to the knowledge of the  dependent and which statements are true to his information.  In so far as  form  No.  25  requires the  dependent  to  state  which statements  are  true  to knowledge  there  is  no  specific mention of the sources of information in the form.  The form of   the  affidavit  and  the  High  Court  rules  are   not inconsistent.    The  High  Court  Rules  give   effect   to provisions of Order 19 of the Code of Civil Procedure.  [960 C-F] 956 The  non-disclosure of grounds or sources of information  in an  election  petition which is to be filed within  45  days from  the date of election of the returned  candidate,  will have to be scrutinised from two politics of view . The  non- disclosure  of the grounds will indicate that  the  election petitioner  did  not  come  forward  with  the  sources   of information  at the first opportunity.  The real  importance of setting out the sources of information at the time of the presentation  of  the  petition is to give  the  other  side notice of the contemporaneous evidence on which the election petition  is based.  That will give an opportunity  to  ’the other  side  to  test the genuineness and  varacity  of  the sources- of information . The other point of view is that he election petitioner will not be able to make any  departure, from the sources of grounds.  If there is any  embellishment of the case it will be discovered. [961 E-F] State  of  Bombay v., Parshottam Jog Naik, [1952] S.  C.  R. 674,  Padmabati Dasi v. Raik Lal Dhar, I.L.R. 37  Cal.  259, Barium Chemicals Ltd. & Anr. v. Company Law Board and  Ors., [1966]  Supp.  S.C.R. 331 and A. K. K. Nambiar v.  Union  of India, [1970] 3 S.C.R. 121, referred to. (ii) The High Court was wrong in pronouncing observations on the First Information Report relating to an incident at  one of election meetings in question when a criminal case  based on that Report was pending. [1964 F-G] (iii) The overwhelming impression produced by the  witnesses on  behalf of the respondent is that they were all  prepared on the same pattern of evidence.  On the entire evidence  it could not be held that the allegations constituting  corrupt practice were proved.[1971 H-972 A]

JUDGMENT: CIVIL APPELLATE JURISDICTION : C.A. No. 2509 of 1969. Appeal  under  Section 116-A of the  Representation  of  the People Act, 1951 from the Judgement and Order dated the 30th September,  1969  of the Madhya Pradesh High  Court,  Indore Bench in Election Petitions Nos. 19 and 19A of 1967. S.L. Sibbal, Advocate-General for the State of Punjab, S. L. Garg and S. K. Gambhir, for the appellant. M.  N. Phadke, U. N. Bachawat, P. C. Bhartari, J.  B.  Dada- chanji, O. C. Mathur, Ravinder Narain, for respondent No. 1. N.  K. Shejwalla, Pramod Swarup, S. S. Khanduja  and  Lalita

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Kohli, for respondent No. 4. The Judgment of the Court was delivered by Ray,  J.  This  is  an appeal from  the  judgment  dated  30 September, 1969 of the High Court of Madhya Pradesh setting, aside  the election of the appellant.  The High  Court  held the appellant to be guilty of corrupt practice under section 123(4)  of  the  Representation  of  the  People  Act,  1951 (hereinafter  referred  to-as the Act) with reference  to  a speech at Singoli on 29 January, 1967 a speech at Athana  on 9  February,  1967 and a speech at Jhatia  on  12  February, 1967.  The High Court further held the 957 appellant  to be guilty of corrupt practice of appealing  on the  ground of religion as defined in section 123(3) of  the Act   and  also  threatening  the  electors,   with   divine displeasure  being a corrupt practice as defined in  section 123(2)  of the Act in regard to the speech at Jhatla  on  12 February,  1967.  The High Court also held the appellant  to be guilty of corrupt practice of appealing on the ground  of religion  and threatening with divine displeasure those  who voted for the Congress in the three speeches delivered on 15 February,  1967 at Morwan, Singoli and Diken by the  Swamiji of Bhanpura at the instance, and in the presence, and  after introduction by the appellant of the Swamiji of Bhanpura  to the audience at those three places. On  31 January, 1972 we delivered the order holding that  we did not agree with the finding of the High Court and we also held the appellant to be not guilty of any corrupt practice. We stated then that we would give the reasons later.  We now give those reasons. The  appellant  and the respondent Jagjiwan  Joshi  and  the other  two  respondents  were  four  candidates  from  Jawad Constituency for election to the Madhya Pradesh Assembly  at the  general election held in the year 1967.  The  appellant was  successful  at  the  election.   The  respondent  Joshi challenged the election of the appellant. The allegations under section 123 (4) of the Act fall  under two  classes.  The first relates to the speech delivered  by the  appellant at Singoli on 29 January, 1967 and  a  speech delivered  by the appellant at Athana on 9  February,  1967. The speech at Singoli was alleged to be as follows :--               The  Congress candidate has on payment of  Rs.               5000 set up Kajod Dhakad...... so that the Jan               Sangh votes may be split and he might win.  If               he  practises  such corruption even  now  what               service  can  he do to the  public  later  on.               You, should not vote for such corrupt men". The speech at Athana in addition to the allegations  already made in respect of the speech at Singoli was as follows :-               "Joshi  has set up Kajod Dhakad on payment  of               Rs. 5000." The other allegations of corrupt practice under section  123 (4)  of  the  Act were in relation to. the  same  speech  at Athana on 9 14-L1061SupCI/72 958 February, 1967 and a speech at Jhatla on 12 February, 1967. The alleged speech at Athana was as follows               "Shri Joshi has set up a man to hit me with  a               knife.    Accordingly,   if   he   becomes   a               legislator the rule of violence (goonda gardi)               would be permanently established.   Therefore,               the  public  should not only defeat  such  bad               characters (badmash) of the Congress but. also               see that their deposit is forfeited". The alleged speech at Jhatla was as follows

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             "This  Congress  candidate  gave  a  knife  to               Mohammad Kasai and got him to attack me.   But               I  have the strength of the  janata  janardhan               and my life is dedicated to you.  It lies with               you  whether to save such goondas who  try  to               commit  murder  or to get their  deposit  for-               feited." The  allegations of corrupt practice as defined in  sections 123(2) and 123(3) of the Act in relation to the same  speech at Jhatla on 12 February, 1967 were as follows :-               "The votes shall be cast on the 20th and it is               fortunate  that  it is a sacred  day  being  a               Monday  gyaras.  To give a vote  to  the  cow-               killing Congress on that day is equivalent  to               cutting down one cow and it will be on you  to               bear the responsibility for this sin". The  allegations of corrupt practice within the  meaning  of sections 123(2) and 123(3) of the Act against the  appellant in regard to three speeches delivered on 15’ February,  1967 at Morwan, Singoli and Diken by the Swamiji of Bhanpura were as follows :--      At Morwan :--               "Today    the   Hindu   dhartna    is    being               destroyed.Sadhus and sanyasis  being shot. The               Congress is killing the cow-progeny (go-vansh)                             of Bhagwan Gopal. so this time you sho uld  cast               your  invaluable  vote  for  up-rooting   that               government.  You put your seal on  the  deepak               symbol (Jan Sangh symbol) on the 20th which is               Monday  gyaras.  To vote for the  Congress  on               such a sacred day is to commit the sin of cow-               killing".      At Singoli :-               "In  the Congress Government sixteen cows  are               being killed every minute. How long will  this               cow-killing  Congress rule the country  ?  How               long   will  it  show  in-difference  to   the               feelings of the overwhelming Hindu 959               majority  just on the strength of the  support               of  a handful of cow-eating Musalmans  If  you               love the Hindu dharma, if there is Hindu blood               in  your veins, do not vote for the  Congress;               but  uproot  it.   Form a  new  Government  by               putting  your  seal on the Jan  Sangh  deepak.               Shri  Saklecha is your Chief Minister  to  be.               The 20th February as a sacred day being Monday               gyras.   Do not on such a sacred day vote  for               the cow-killing Congress and bring yourself to               hell (narak ke bhagi na bane) ".               At Diken:-               "There  was a yagna for putting an end to  the               cow killing in this country.  Many sadhus  and               sanyasis have sacrificed their life for  this,               but  the Congress, intoxicated with power  has               along with cow-killing killed sadhus also.  It               is the dharma of every Hindu not, to vote  for               such  murderous Congress.  The 20th is  Monday               gyaras and a sacred day.  So put your seal  on               the deepak and make the Jan Sangh  successful.               The  Jan  Sangh will put an end  to  the  cow-               killing  and  you will get merit  (punya)  and               endlless bliss (akhand sukh)". With regard to the speech at Athana on 9 February, 1967  the

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allegations within the meaning of section 123(4) of the  Act were twofold.  First that the appellant published the  false allegation that the respondent had bribed Kajod Dhabad  with Rs.  5000  and had set up him as a  candidate.   The  second allegation  was  that  at  the  same  speech  the  appellant published  the false story that the respondent had set up  a man  to,  hit the appellant with a knife.   The  High  Court accepted  the  oral  evidence of  the  respondent  and  four witnesses Kishan Lal Teli P.W. 1, Ghisa Dhakad P.W. 2, Laxmi Lal P.W. 5 and Chand Mohammad P.W. 6. The High Court did not accept  the  oral  evidence  of  the  appellant  or  of  the witnesses on behalf of the appellant.  The High Court  found the   witnesses   on  behalf  of  the   respondent   to   be straightforward and impartial.  On the other hand, the  High Court found the witnesses on behalf of the appellant to,  be persons who knew what they had come for and asserted general statements of denial. The  respondent filed an affidavit along with  the  election petition.   The  affidavit did not disclose  the  source  of information in respect of the speeches alleged to have  been made  by the appellant.  Section 83 of the Act  requires  an affidavit  in the prescribed form in support of  allegations of  corrupt practice.  Rule 94-A of the Conduct of  Election Rules 1961 requires an affidavit to be in form No. 25.  Form No.  25 requires the deponent to state which statements  are true to knowledge and which statements are true to 960 information.   Under  section 87 of the  Act  very  election petition  shall be tried by the High Court as nearly as  may be  in  accordance with the procedure applicable  under  the Code  of  Civil  Procedure to the  trial  of  suits.   Under section  102  of  the Code the High  Court  may  make  rules regulating  their  own procedure and the  procedure  of  the Civil  Courts subject to their supervision and may  by  such rules  vary, alter or add to any of the rules in  the  First Schedule to the Code. Rule 9 of the Madhya Pradesh High Court Rules in respect  of election  petitions states that the rules of the High  Court shall apply in so far as they are not inconsistant,with  the Representation  of the People Act, 1951 or other  rules,  if any,  made thereunder or of the Code of Civil  Procedure  in respect  of  all matters including  inter  alia  affidavits. Rule  7 of the Madhya Pradesh High Court Rules  states  that every  affidavit  should  clearly  express  how  much  is  a statement  and declaration from knowledge and how much is  a statement made on information or belief and must also  state the  source  or  grounds  of  information  or  belief   with sufficient particularity. Form  No. 25 of the Conduct of Election Rules  requires  the deponent  of  an affidavit to set out which  statements  are true to the knowledege of the deponent and which  statements are  true to his information.  The source of information  is required to be given under the provisions in accordance with Rule 7 of the Madhya Pradesh High Court Rules.  In so far as form  No. 25 of the Conduct of Election Rules  requires  the deponent  to  state which statements are true  to  knowledge there  is no specific mention of the sources of  information in  the form.  The form of the affidavit and the High  Court Rules  are  not  inconsistent.  The High  Court  Rules  give effect  to  provisions  of Order 19 of  the  Code  of  Civil Procedure. The importance of setting out the sources of information  in affidavits came up for consideration before this Court  from time  to  time.  One of the earliest decisions is  State  of Bombay  v.  Parshottam Jog Naik, [1952], S.C.R.  674,  where

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this Court endorsed the decision of the Calcutta High  Court in Padmabati Dasi v. Rasik Lal Dhar, I.L.R. 37 Cal. 259, and held  that  the  sources of information  should  be  clearly disclosed.   Again,  in  Barium Chemicals  Ltd.  &  Anr.  v. Company  Law Board and Ors., [1966] Supp.  S.C.R. 331,  this Court deprecated ’slip short verifications, in an  affidavit and  reiterated  the ruling of this Court  in  Bombay,  case (suppra) that verification should invariably be modelled  on the  lines of Order 19 rule 3 of the Code ’Whether the  Code applies in term, or not’.  Again, in A. K. K. 961 Nambiar  v. Union of India, [1970] 3 S.C.R. 121  this  Court said  that  the importance of verification is  to  test  the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. Counsel  on behalf of the appellant contended that  non-dis- closure of the sources of information in the affidavit was a fatal   defect  and  the  petition  should  not  have   been entertained.  It is not necessary to express any opinion  on that  contention  in view of the fact that  the  matter  was heard  for several months in the High Court  and  thereafter the appeal was heard by this Court.  The grounds or  sources of  information  a re to be set out in an  affidavit  in  an election petition.  Counsel on behalf of the respondent sub- mitted that the decisions of this Court were not on election petitions.   The rulings of this Court are consistent.   The grounds  or sources of information are to be set out in  the affidavit  whether the Code applies or not.  Section  83  of the  Act states that an election petition shall be  verified in the manner laid down in the Code.  The verification is as to information received.  The affidavit is to be modelled on the   provisions  contained  in  Order  19  of   the   Code. Therefore,  the  grounds  or  sources  of  information   are required to be stated. The  non-disclosure of grounds or sources of information  in an  election  petition which is to be filed within  45  days from  the date of election of the returned  candidate,  will have  to be scrutinised from two points of view.   The  non- disclosure  of the grounds will indicate that  the  election petitioner  did  not  come  forward  with  the  sources   of information  at the first opportunity.  The real  importance of setting out the sources of information at the time of the presentation  of  the  petition is to give  the  other  side notice of the contemporaneous evidence on which the election petition  is  based.  That will give an opportunity  to  the other  side  to  test the genuineness and  veracity  of  the sources of information.  The other point of view is that the election  petitioner will not be able to any departure  from the  sources or grounds.  If there is any  embellishment  of the case it will be discovered. The  non-disclosure of grounds or sources of information  in the affidavit of the election petitioner in the present case assumed importance by reason of the fact that the respondent said  that he had a written report about the alleged  speech at Athana and the report was given to the respondent by  Ram Kumar Aggarwal.  Ram Kumar Aggarwal was also a candidate  of the  Congress  party  at the same  election  from  the  same constituency which is the subject matter of the appeal.  Ram Kumar  Aggarwal was not examined as a witness.  The  written notes   of  Ram.   Kumar  Aggarwal  were  admitted  by   the respondent to be with him.  The respon- 962 dent  gave the explanation for non-production of  Ram  Kumar Aggarwal  that  he produced only such witnesses  who  either opposed  him  in the election or were  independent.   As  to

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persons  who  opposed  him in the  election  the  respondent stated  that  they were summoned by him  through  court  and those who were independent were brought by him personally to court.  The non-production of Ram Kumar Aggarwal and of  the notes  made  by  him  at the meeting  at  Athana  raises  as irresistible inference against the respondent that the  same would not have supported the respondent’s case. Witnesses on behalf of the respondent Kishan Lal Teli  Ghisa Dhakad,  Laxmi  Lal, Chand Mohammad and Bansi  Dhar  Bairagi gave oral evidence in identical words and language that  the respondent  had  instigated  Mohd.   Kasai  to  attack   the appellant  with a knife and that the respondent had  set  up Kajod  Dhakad  paying  Rs.  5000  and  if  Joshi  became   a legislator there will be rule of goondas. Kishan Lal Teli was the polling agent of the respondent.  He denied  that  he was one.  He was shown  the  polling  agent forms  Exhibits  R-1/39  and R-1/40.   He  stated  that  the signatures  might  be  his.  The  respondent  admitted  that Exhibits R-1/39 and R-1/40 were signed by him but Kishan Lal was not prepared to admit his own signatures on the polling_ agent  forms.  Kishan Lal Teli was  neither  straightforward nor impartial.  Kishan Lal Teli said that there were 5 or  6 meetings in the village during the time of the election  but the  only meeting which he attended was at Athana.  That  is indeed  strange and significant.  Kishan Lal Teli said  that there  were  6 speakers and he remembered  the  sequence  in which the speaker spoke.  Kishan Lal Teli said that he spoke entirely from memory. Ghisa  Dhakad also spoke from memory.  He mentioned about  6 speakers.   Ghisa Dhakad also happened to be a  witness  who attended  the meeting at Athana only.  A curious feature  of Ghisa  Dhakad’s evidence is that he did not speak about  the speech to anybody till he gave evidence in court.  It  would be beyond comprehension as to how the respondent would  cite Ghisa Dhakad a witness to support the allegations when Ghisa Dhakad  gained silent and unknown.  It is also  in  evidence that  Ghisa   Dhakad  was  the  worker  of  the  appellant’s opponents. Laxmi Lal P.W. 5 also happened to have attended the solitary meeting at Athana and no other meeting.  Laxmi Lal also mend the  speakers  in the same sequence as the  other  witnesses Laxmi Lal said that he remembered the speeches of  everybody who  spoke.  Laxmi Lal in cross-examination stated that  the ant also talked of ’Lagan’.  When he was asked as to why 963 he  did not mention this fact in  his  examination-in-chief, his  answer Was that the appellant had mentioned of  ’Lagan’ at  the end of the speech, and, therefore, he did not  speak about it in examination in-chief.  This indicates as to  how Laxmi  Lal  tried to impart originality to  his  version  of remembrance of things. Chand Mohammad was believed by the High Court with regard to his  presence at Athana but was disbelieved with  regard  to his  presence  at Sarwania Masania.  It may be  stated  here that  the  High  Court  did  not  accept  the  case  of  the respondent with regard to Sarwania Masania.  Chand  Mohammad happened  to be a casual witness with regard to the  meeting at Athana.  His evidence was that he was going to the  house of Dhakad Kheri and he stopped for a minute or two to listen to  Jan Sangh speakers.  That is how he heard the  appellant speaking.   The  fortuitous manner in which  Chand  Mohammad attended the meeting at Athana shows that he was  introduced to  support  the respondent by repeating what  the  previous witnesses  said  about  the Athana meeting.   This  will  he apparent  in view of the fact that when Chand  Mohammad  was

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examined  for the second time like some other  witnesses  he said that he heard the speech of the appellant for a  minute or two but he left the meeting before the appellant’s speech Was  over.   When Chand Mohanunad was  confronted  with  his previous  statement his explanation was that on the  earlier occasion he was thinking about the meeting of Kajod  Dhakad, yet  the High Court accepted the evidence of Chand  Mohammad to be impartial and impressive. Bansi Dhar Bairagi P.W. 4 was found by the, High Court to be angry  with  the  appellant’s party.   But  the  High  Court accepted  the evidence of Bansi Dhar Bairagi on  the  ground that  his  evidence was corroborated by  the  statements  of Laxmi  Lal,  Ghisa Dhakad and Chand  Mohammad.   Bansi  Dhar Bairagi  proposed  the name of Ram Kumar  Aggarwal  who  was supposed to, have taken notes of the Athana meeting and  who never came to, the witness box.  Bansi Dhar Bairagi was also associated with Kajod Dhakad.  Bansi Dhar Bairagi’s evidence was  that he went to, propose the name of Kajod  Dhakad  but when  he  was going to propose the name his  hand  began  to shake.  That is indeed a very shaky explanation.  A  curious part  of  the  evidence of Bansi Dhar Bairagi  is  that  the appellant spoke of cow killing at the Athana meeting.   That was  not  the  case  even of  the  respondent.   Bansi  Dhar Bairagi’s  evidence in respect of his presence  at  Sarwania Masania was not accepted by the Court on the ground that  he was  a casual witness.  Bansi Dhar Bairagi was the  election agent of Kajod Dhakad.  The nomination paper of Kajod Dhakad was proposed by Ram Chand Nagla brother of Badri Nath  Nagla the President of Jawad Mand Congress.  Badri Nath Nagla  was the proposer and the counting 964 agent  of  the  respondent.  These  features  point  to  the inescapable  conclusion  that  the  witness  was  not   only interested but also partisan. The  witnesses on behalf of the respondent appeared  to  be. present only at the Athana meeting.  They did not attend any other  meeting.   They spoke entirely  from  memory.   Their version of the speeches was in the same words and  language, One  of the witnesses was unknown to the respondent and  the respondent  also  did not know anything about him  until  he gave  evidence  in court.  The witnesses on  behalf  of  the respondent  seemed to have phenomenal memory.  Each  witness spoke in the same sequence.  Each witness spoke in the  same language.  Each witness mentioned the names of the  speakers in  the  same order.  The entire evidence on behalf  of  the respondent   is   tutored  and  prompted  to   support   the respondent.  The High Court was wrong in relying on the oral evidence  of  the  respondent and  his  witnesses.   In  the background of the entire oral evidence adduced on behalf  of the  respondent it is apparent as to why the respondent  did not  mention  the grounds or sources of information  in  the affidavit.   There  were  no  real  sources.   Sources  were fabricated.   There  is not a single  piece  of  documentary evidence to support the case of the respondent.  The alleged notes  of the meeting at Athana which were admitted  by  the respondent  to  be in existence never saw the light  of  the day.   The withholding of that document gives a lie  to  the respondent’s  case.   It is obvious that if  there  were  in existence any notes the respondent would have exhibited them at the earlier opportunity. The  High Court not only disbelieved the witnesses  produced on  behalf  of the appellant with regard to the  meeting  at Athana  but also made certain observations about  the  first information report lodged by Sunder Lal Petlia R.W. 35. with regard  to an incident at Athana at the day of the  meeting.

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A criminal case is pending as a result of that report lodged by  Petlia.  The High Court held that the first  information report is a forgery.  It is true that the High Court in  one part of the judgment stated that whatever was stated by  the High  Court  about the first information report  should  not affect  the judgment of the Magistrate.  The High Court  was wrong  in pronouncing observations on the report  lodged  by Petlia.  We are unable to accept the views of the High Court on the report lodged by Petlia inasmuch as the criminal case is pending. The  respondent’s allegations with regard to the meeting  at Jhatla  on  12 February, 1967 are under two  heads.   First, that the appellant is guilty of corrupt practice as  defined in  section  123  (4 ) of the  Act  inasmuch  the  appellant published  falsely that the respondent had set  up  somebody armed with a knife to attack the appellant.  The second head was that the appellant was guilty of corrupt 965 practice as defined in sections 123(2) and 123(3) of the Act by  appealing  to  voters  on the  ground  of  religion  and threatening  them with divine displeasure if they voted  for the  Congress candidate.  The speech alleged to be  made  by the  appellant  at Jhatla on 12 February, 1967 was  that  20 February, 1967 was the sacred day being a Monday gyaras  and to  give a vote to the cow killing Congress on that day  was equivalent  to cutting down one cow and it would be  on  the voters  to  bear the responsibility for the sin.   The  High Court  accepted the oral evidence of the respondent and  his witnesses.   The  respondent said that Mohan Lal  Ramji  Lal took  notes of the meeting at Jhatla.  Mohan Lal  Ramji  Lal was not examined by the respondent.  The, alleged notes were also not produced.  These features indicate that there  were no  such  notes  for  if the notes  were  in  existence  the respondent  would  have produced the same in  proof  of  the allegations.   The respondent is a lawyer.   The  respondent not only understands but also appreciates the importance  of documents  if they happen to be contemporaneous  documentary evidence. The witnesses on behalf of the respondent with regard to the speech  at  Jhatla were Daulat Ram Sharma  P.W.  12,  Kastur Chand  Jain  P.W.13, Ratan Lal Jain P.W. 14 and  Prabhu  Lal P.W.  15.   The common features of all these  witnesses  are that  each witness spoke in identical words and in the  same sequence about the speeches of the appellant. Daulat Ram Sharma admitted that he had no occasion to repeat the  speech  to  anybody except when he came  to  depose  in court.   Daulat Ram Sharma went in search of his  cattle  to the pond at Jhatla.  He could not find his cow.  He went  to purchase tobacco.  When he reached the shop he saw a meeting of Jan Sangh going on. He heard the speech of the appellant. He does not belong to Jhatla but lives ’at Jhabarka  Rajpura at  a  distance  of 3 furlongs from Jhatla.   It  is  indeed remarkable that a person who by chance walked to the meeting would  not only remember the entire speech ascribed  to  the appellant in the election petition but also depose to it  in court  without ever having mentioned the speech  to  anybody and in particular the respondent.  Daulat Ram Sharma  stated that this was the only meeting attended by him in his  life. Such a witness cannot inspire any confidence. Kastur  Chand Jain was the polling agent of the  respondent. He  discussed with the respondent the latter’s defeat  about two months after the election.  He told the respondent  that he  would  give  evidence  in  court  without  any  summons. Heattended  the Congress Session and is associated with  the Organisation.  As an instance of his power of memory he said

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that he could repeat the speech of 966 the   Congress  Parliamentary  candidate  delivered  on   24 February, 1967.  This witness appears to be partisan. Ratan  Lal  Jain  was  also  associated  with  the  Congress organisation.   He went to the extent of saying that he  did not  know  that  voting for Congress meant  voting  for  the respondent who was a Congress candidate. Prabhu  Lal came to give evidence along with Ratan Lal  Jain P.W.  14  and Kastur Chand Jain P.W. 13.   They  all  stayed together  at Mahalaxmi Lodge.  They also met the  respondent though  they  denied  that  they  had  any  talk  with   the respondent about the evidence.  It is incomprehensible as to how  the  respondent would cite such  persons  as  witnesses unless  the  respondent knew what they were going  to  speak about.  A witness is not called by a party unless the  party knows that the person can testify to the facts in the  case. Witnesses  on behalf of the respondent gave  the  impression that  they never mentioned to anyone about what they  knew,. If  that  be the position it would not be possible  for  the respondent  to  ,cite  them as  witnesses.   These  features indicate that the witnesses appeared to give a semblance  of disinterestedness  whereas in fact they were all tutored  to support the case of the respondent.  The impression produced by  the witnesses is that their version of the speeches  was similar to reading cyclostyled copies of the speech.  We are unable  to accept the conclusion reached by the  High  Court about the speeches of the appellant at Jhatla. The respondent alleged that the appellant delivered a speech at  Singoli on 29 January, 1967.  The allegations  are  that the  appellant  committed the corrupt  practice  within  the definition  of section 123(4) of the Act by  publishing  the false  allegations that the respondent had paid Rs. 5000  to Kajod  Dhakad to set him up as a candidate.  The  respondent also   alleged   that  besides  the  appellant   one   Swami Brahmananda  of Himachal Pradesh and Khuman Singh of  Nimech also spoke at the meeting at Singoli on the same ,day. The  High Court accepted the oral evidence of P.W. 16  Paras Ram,, P.W. 17 Bhanwar Lal, P.W. 18 Ram Chandra Sharma,  P.W. 19 Nathu Lal and P.W. 22 Mange Lal Pancholi. P.W.  18  Ram  Chandra Sharma  admitted  his  signatures  on Exhibits  R-1/5 and R-1/6.  These two documents are  minutes Of  meeting  of the Congress party of Singoli  held  in  the months  of August and October, 1966.  Ram  Chandra  Sharma’s name appears in the notices of the meetings of the  Congress Party in the months ,of August and October, 1966 at  Singoli which  are Exhibition R-1/7 and R-1/8.  Ram  Chandra  Sharma appears  as  a  signatory  to  the  minutes.   After  having admitted the signatures Ram Chandra 967 Sharma made attempts to disown his signatures.  Exhibits  R- 1/9, R- I / I 0, R- I / 1 1, R- I / 1 2, R- I / 13 and R-  1 / 14 are receipts signed by the witness Ram Chandra  Sharma. These   receipts   relate,  to  expenses   for   meals   and refreshments  arranged for the workers near about the.  time of  the election.  Ram Chandra Sharma denied  his  signature but  he  admitted  that  the  Congress  workers  and   other customers  paid him for the meals.  He denied that  he  gave the  respondent any receipt.  Ram Chandra  Sharma  obviously wanted   to  extricate  himself  from  the  receipts   which nullified his oral evidence.  Ram Chandra Sharma was a  very interested  witness and he was directly associated with  the respondent.   Ram Chandra Sharma said that the only  meeting he  attended  in  his  life was the one  at  Singoli  on  29 January,  1967.   Such  singular  attendance  is  not   only

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suspicious but also mendacious.  Ram Chandra Sharma not only gave from, his memory the speech of the appellant at Singoli but  also added a gloss to it by stating that the  appellant spoke  about tax on sugar.  It was not even the case of  the respondent that the appellant spoke about tax on sugar. P.W. 22 Mange Lal also supported the case of the  respondent about the appellant’s speech at Singoli on 29 January, 1967. Like  Ram  Chandra Sharma he also said  that  the  appellant talked  about  tax on sugar.  This shows how  this  pair  of witnesses  played the parrot in giving evidence,  Mange  Lal was  confronted  with Exhibit R-1/19  and  Exhibit  R-1/19A. These  two receipts are in respect of rent of  the  building owned  by  Mange Lal.  The receipts are on account  of  rent from  the  respondent.   Mange Lal said  that  he  gave  the receipts  at  the  instance of Radha  Kishan.   The  further explanation  given  by the witness was that  the  house  was mortgaged  with Radha Kishan.  No document was  produced  to prove the mortgage.  Radha Kishan is Mange Lal wife’s uncle. Mange  Lal’s attempt to explain away the receipts  for  rent was  futile.   Mange  Lal  also appears to  be  one  of  the conveners  of  the  Congress meeting  as  will  appear  from Exhibits  R-1/7  and  R-1/8.  He is also  signatory  to  the minutes  Exhibits  R-1/6.   Mange Lal  said  that  the  only meeting  he  ever attended was at Singoli on  29  Februarly, 1967.   He had never any talk with the respondent about  the speech at Singoli. These  witnesses establish without any doubt that they  were not  truthful  witnesses but came prepared  to  support  the respondent’s case. The  other witnesses P.W. 17 Bhanwar Lal and P.W.  19  Nathu Lal  also  spoke  about the appellant’s  alleged  speech  at Singoli on 29 January, 1967.  These two witnesses also  gave evidence about the speech of Swamiji of Bhanpura at  Singoli on 15 February, 1967.  The High Court accepted the  evidence of these witnesses. 968 We  are  unable to accept the evidence of  Bhanwar  Lai  and Nathu Lai for the reasons to be given while discussing their evidence  in  connection with the meeting at Singoli  on  15 February, 1967. The  respondent  alleged that the appellant  was  guilty  of corrupt practice within the meaning of sections 123 (2)  and 123 (3) of the Act by reason of the three speeches delivered by  the Swamiji of Bhanpura on 15 February, 1967 at  Morwan, Diken and Singoli.  The respondent alleged that the speeches were at the instance of audience. With  regard to the speech at Morwan apart from the  respon- dent  there were three witnesses on his behalf.   They  were P.W.  7 Manek Lai, P.W. 8 Ratan Lai Gaur Banjara and P.W.  9 Gulzari  Lai Mahajan.  Manek Lai gave evidence  twice.   The second  time  he gave evidence was in  accordance  with  the understanding  given by the respondent before this Court  to produce  some  of  the  witnesses at  his  own  cost.   That undertaking  was given at the hearing of an  application  by the  appellant  in this Court for transfer of  the  Case  to another  court.  When Manek Lai gave evidence On  the  first occasion he did not mention that Swamiji of Bhanpura said at the meeting at Morwan on 15 February, 1967 that 20  February was  a sacred day and to vote for Congress on such a  sacred day  would be to commit the sin of cow killing.   Manek  Lai said that he attended the meeting of the Congress and of the Jan Sangh and he voted. Gulzari Lai said that the, Morwan meeting was the only meet- ing  he ever attended.  Both Manek Lai and Gulzari Lai  like other witnesses gave evidence about the speech of Swamiji of

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Bhanpura in identical language and in the same sequence. The hollowness of the evidence adduced on behalf of the res- pondent  is revealed by the testimony of Ratan Lai  Banjara. He  was  confronted  with Exhibit R-1/27.   The  High  Court described this document to be "purloined brief." Exhibit  R- 1/27  is a document which contains the date and hour of  the meeting  at  Morwan,  the  text of  the  speech  at  Morwan. Thereafter there are 7 questions and answers.  The questions are as to when did Swamiji come; how he came; who came  with him;  and  it  is also written in  that  document  that  the appellant  came  and listened to the  speech  and  expressed gratitude  and  thanks  to the public.   Ratan  Lai  Banjara denied  that  he  was tutored through  that  document.   The alleged  speech  of Swamiji of Bhanpura is typed  in  Hindi. One of the notes in that document is that Moti Khema Jat and Gordhan  Singh  were not seen at the  meeting.   Those,  two persons  were  cited by the appellant as  witnesses.  it  is indeed  curious that witnesses would,specifically say as  to who were not present and the names of such persons who  were not present are those who are cited by the 969 respondent  as  witnesses.   It is not  only  unnatural  but extraordinary that witnesses would notice as to who were not present  at the meeting which, according to  the  witnesses, was attended by 500 persons. The  respondent was shown Exhibit R-1/27.   His  explanation was  that  the notes were prepared for instructions  to  his counsel.   The tenor of the document and the  questions  and answers  point with unerring accuracy that the document  was prepared  to coach witnesses.  The respondent said  that  he had prepared such notes for every meeting.  Other  documents did  not see the fight of the day.  That would  support  the conclusion that other witnesses had been similarly prepared. It explains why all witnesses spoke the same language.   All witnesses were coached. The respondent said that Jai Ram Jat had taken notes of  the meeting at Morwan and gave the same to the respondent.   The respondent  said  that the notes were not  of  significance, and, therefore, he did not take the notes from Jai Ram  Jat. If  the notes were not significant the Morwan  meeting  also became  insignificant.  The non-production of the notes  and of  the  author  of the notes, are  additional  features  to establish the vacuity of the respondent’s allegations  about the speech of Swamiji of Bhanpura at Morwan. The  High Court referred to an article published in  ’Sudesh in the issue dated 30 November, 1966.  There was an  article written  by  Swamiji of Bhanpura.  The High  Court  observed that  Swamiji  of Bhanpura wrote in that  article  that  the killing  of  cow  was  one  manner  of  killing  God,   and, therefore, it was extremely probable that a person who  held that  view  would while speaking of cow  protection  give  a deeply religious complexion and would condemn those who  did not  share  his  views.  This is a strange  logic.   We  are unable to accept the evidence of the respondent and his wit- nesses that there was any speech at Morwan that to vote  for the Congress would be to commit the sin of cow killing. The  respondent’s further case is that Swamiji  of  Bhanpura delivered  a speech at Singoli on 15 February,  1967.   This speech was also alleged by the respondent to be an appeal on the  ground of religion and a threat that the  voters  would incur divine displeasure if they voted for the ’cow  killing Congress’.  The High Court relied on the evidence of P.W. 16 Paras Ram and P.W. 17 Bhanwar Lal.  Paras Ram was confronted with a document Exhibit R-1/50.  That document contains  the minutes  of the meeting of the Congress party at Singoli  on

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26 August, 1966.  The name of Paras Ram is mentioned  there. The name of one Ratan Lal is also mentioned there.  The High Court  held that Paras Ram was a common name and  there  was nothing to show that Paras 970 Ram in Exhibit R-1/50 was the same Paras Ram who appeared as a witness. Paras Ram said that Madan Lal Sharma a Jan Sangh worker made an announcement about the meeting.  Madan Lal Sharma R.W. 16 gave evidence on behalf of the appellant and denied that  he made any announcement.  The High Court relied on the  cross- examination  of  Bhanwar Lal P.W. 17.  Bhanwar  Lal  in  his evidence  stated that Madan Lal Sharma of Singoli  made  the announcement.   It  was suggested to Bhanwar Lal  in  cross- examination  that there was no such announcement.  The  High Court read that suggestion to mean that there was no  person of  the  name  of Madan Lal Sharma in  existence.   That  is totally  misreading the suggestion.  It is also not  reading the  evidence  of Madan Lal Sharma R.W. 16  in  the  correct perspective. Paras  Ram was living at Nimech for the last 15 ’years.  The respondent  also  admitted that Paras Ram lived  at  Nimech. Paras Ram said that he never attended any meeting  excepting the  one  at  Singoli.  Paras Ram  narrated  the  speech  of Swamiji  from  memory.  He also said that he never  had  any discussion  with  any witness or even  with  the  respondent about the speech.  If that were so, the respondent would not be  able to call Paras Ram as a witness.  This  attitude  is typical  of  almost  all  the witnesses  on  behalf  of  the respondent.  The witnesses wanted to give the appearance  of detachment  and disinterestedness.  The  evidence  indicates that they were coached and they were not only interested  in the  Congress  Organisation  but also in  the  case  of  the respondent. Paras Ram denied that there was any case pending against him under section 107 of the Criminal Procedure Code.  When.  he was  confronted with Exhibit R-1/4 he admitted that  he  was prosecuted.   He also admitted that the respondent  was  his counsel in suits which were pending against him.  Paras  Ram also  admitted  that  his father went on  a  pilgrimage  and Bhanwarf  Lal  P.W. 17 was taken by his father.   Paras  Ram said that he came to court in the company of Bhanwar Lal. Bhanwar Lal was known to the respondent.  The respondent was his  lawyer.  Bhanwar Lal cooked for Congress  workers.   He came to Singoli for election purposes.  Bhanwar-lal admitted that  he went with the father of Paras Ram on a  pilgrimage. Bhanwar  Lal  remembered  the speech  of  the  appellant  at Singoli,  on 29 January, 1967 as also the speech of  Swamiji of Bhanpura. Bhanwar  Lal  and all other witnesses who  spoke  about  the speech  of Swamiji narrated the ’same in the  same  language and in the same order.  The first part of the speech related to cow, the second part being an appeal to religion and  the third part related to an 972 pattern  of  evidence We are unable to hold  on  the  entire evidence that there was any appeal on the ground of religion or that there was any threat to voters of divine displeasure if they voted for the Congress. The respondent alleged that there was a meeting at Diken  on 15  February,  1967 where Swamiji of  Bhanpura  spoke.   The allegations  are that there was an appeal on the  ground  of religion.  The respondent produced two witnesses Shanti  Lal P.W. 10 and Ram Bilas P.W. 1 1. Shanti  Lal’s evidence was that the cow slaughter should  be

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stopped and Monday gyaras was a holy day and all should vote for  Jan Sangh and thus earn happiness and bliss and it  was the  duty  of  every  Hindu not  to  vote  for  cow  killing Congress.   This evidence does not support the  respondent’s case.  Shanti Lal said that his family left on 10  February, 1967.   His  family members went to Byama  in  Rajasthan  to attend a marriage ceremony.  Shanti Lal however said that he stayed on.  He left on 16 February, 1967 ,and returned on 28 February, 1967.  This was to make it possible for him to  be present at Diken on 15 February, 1967. Ram  Bilas P.W. 11 narrated  the speech of Swamiji of  Bhan- pura.   He  however  said  that he  had  no  talk  with  the respondent.   It becomes difficult to follow as to  how  the respondent  would know about the presence of the witness  at Diken and then cite him as a witness. The respondent gave an undertaking to this Court to  produce the  witness for cross-examination.  The  witnesses  however were not produced.  That is another reason to hold that  the respondent’s case was not true. For the foregoing reasons the judgment of the High Court  is set aside.  The election petition is dismissed. The  trial  in the High Court lasted over  180  days.   Both parties  should have conducted the case with  precision  and clarity.  The parties    could  have shortened  the  matter. Both parties are to pay and bear   their  own costs. in  the High Court as well as in this Court. G.C.                 Appeal allowed. 973