Civil Appeal No 1170 of 1973
From the judgment and order dated the 25 4 1973 of the Andhra Pradesh High Court in Election Petition No 4 of 1972 P Basi Reddy C Sadasiva Reddy G Narayana Rao and Mrs Vimala Markendeyulu for the appellant
B Shiv Shankar A V Rangam Miss A Subhashini and K Venkata Ramiah for the residents
The Judgment of the Court was delivered by FAZAL ALIJ
This is an appeal under section 116A of the Representation of the People Act 1951 hereinafter referred to as the Act  by Venkata Reddy who was Respondent No 1 in the election petition filed before the High Court of Andhra Pradesh
The appeal arises out of the general elections held to the Andhra Pradesh Legislative Assembly in March 1972 from Gooty Assembly Constituency
The appellant Venkata Reddy T Papa Sab and R Sultan the election petitioner before the High Court applied for Congress ticket for the Gooty Assembly Constituency seat
The District Congress Committee Anantapur recommended the names of R Sultan Papa Sab and Ramachandra Goud but did not recommend the name of the appellant The Andhra Pradesh Provincial Congress Committee however recommended
the name of R Sultan the first respondent alone
This recommendation appears to have been accepted by the All lndia Congress Committee which gave the Congress ticket to the first respondent R Sultan oh February 1 1972 as a result thereof the other candidates namely the appellant Venkata Reddy T Papa Sab and Venkata Subbayya decided to contest the election as independent candidates whereas Venkata Naidu got the Congress O ticket
The polling to the aforesaid constituency was held on March 8 1972 and counting was done on March 12 1972 on which date the result was also declared
The appellant was declared elected having secured 19974 votes polled in the constituency
Respondent No 1 R Sultan lost by a narrow margin of 471 votes having polled 19503 votes
The other respondents were accordingly defeated and we are not at all concerned with their cases
Respondent No 1 R Sultan filed an election petition before the Andhra Pradesh High Court on April 20 1972 which was assigned to Sriramulu J who tried the election petition
For the sake of convenience we shall refer to Venkata Reddy as the appellant and R Sultan who was the election petitioner before the High Court as the contesting respondent
The contesting respondent sought to challenge the election of the appellant on various grounds and alleged that the appellant had indulged in a large number of corrupt practices as envisaged by section 123 of the Act
namely bribery corruption communal propaganda impersonation of voters excessive expenses improper rejection and reception of ballot papers etc
The contesting respondent also filed an application before the Trial Judge that as number of irregularities were committed in tho rejection and acceptance of the ballot paper the Court should allow scrutiny 450 and recounting of the votes
The Court after considering the evidence of the parties on this point eventually allowed the application but ultimately it held that even if there was any irregularity it had not caused any material 
change in the election
The petition was resisted by the appellant who emphatically denied all the allegations made by the contesting respondent and submitted that the elections were free and fair and that the appellant had not indulged in any corrupt practice at all
The appellant further pleaded that all the allegations made by the contesting respondent were figment of his imagination and were totally untrue
On the question of corrupt practices particularly the distribution of objectionable pamphlets as the contesting respondent had not given full and material particulars in his election petitionthe appellant filed an application on July 7 1972 praying that the Court may direct the contesting respondent to file better particulars by way of amendment
The Court directed the contesting respondent to supply fresh particulars and accordingly the contesting respondent filed his application for amendment by incorporating material particulars on August 29 1972
On the pleadings of the parties the High Court framed as many as 35 issues in the present case
After taking the evidence of the parties the Court decided all the issues against the contesting respondent except issues Nos 7 26 and 27 which were decided in favour of the con testing respondent
In view of the findings given by the learned Judge the election of the appellant was set aside but the learned Judge refused to grant the relief to the contesting respondent for being declared as duly elected to the seat in question
It is against this decision that the appellant has come up to this Court in appeal
Mr P Basi Reddy learned counsel for the appellant has assailed before us the findings of the High Court on issues Nos 7 26 and 27 as these were the only issues which affected the appellant
Mr B Shiv Sankar learned counsel for the contesting respondent has endeavoured tosupport the judgment of the High Court by submitting that the findings arrived at by the High Court were based on a correct and proper appreciation of the evidence and the facts and circumstances or the record
In a democracy such as ours the purity and sanctity of elections the sacrosanct and sacred nature of the electoral process must be preserved and maintained
The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague indefinite frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character
It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election
In our country election is a fairly costly and expensive venture and the Representation of the People Act has provided sufficient safeguards to make the elections fair and free
In these circumstances
therefore election results cannot be lightly brushed aside in election disputes
At the same time it is necessary to protect the purity and sobriety of the elections by ensuring that the candidates do not secure the valuable votes of the People by undue influence
fraud communal propaganda bribery or other corrupt practices as laid down in the Act
451 Another principle that is equally well settled is that the election A petitioner in order to succeed must plead all
material particulars  and prove them by clear and cogent evidence
The allegations of corrupt practices being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt
Where the election petitioner seeks to prove the charge by purely partisan evidence  consisting of his workers agents supporters and friends the Court would have to approach the evidence with great care and caution scrutiny and circumspection and would as a matter of prudence r though not as a rule of law require corroboration of such evidence from independent quarters unless the Court is fully satisfied that the evidence is so credit worthy and true spotless and blemishless cogent and consistent that no corroboration to lend further assurance is necessary
It has to be borne in mind that the attempt of the agents or supporters of the defeated candidate is always to get the election set aside by means fair or foul and the evidence of such witnesses therefore must be regarded as highly interested and tainted evidence which should be acted upon only if the Court is satisfied that the evidence is true and does not suffer from any infirmity
Where however the evidence led by the election petitioner even though consistent is fraught with inherent improbabilities and replete with unnatural tendencies the Court may refuse to accept such evidence because consistency alone is not the conclusive test of truth Judicial experience shows that sometimes even r a tutored or parrot  like evidence can be consistent and free from discrepancies and yet not worthy of credence
It is however difficult to lay down a rule of universal application because each case will have to be decided on its own facts but in appreciating the evidence the broad features mentioned above must be borne in mind and have been emphasised by this Court in a large catena of decisions a few of them may be refer red to here
In Bhanu Kumar Shastri vs Mohan Lal Sukhadia and othersl this Court observed as follows Allegation of corrupt practice is a charge of criminal nature
The provisions in the Representation of the People Act are intended to preserve the purity of the election but at the same time these provisions should not be subverted for the impure purposes of maligning candidates who happen to be in the Government on the eve of the election X X X The Court is always vigilant to watch not only the conduct of the candidates and to protect their character from being defamed hut also to see that the character and conduct of the public is not corroded by corrupt motive or evil purposes of candidates
The genuine and bona fide aims and aspirations of candidates have to be protected on the one hand and mala fide abuse and arrogance of power will have to be censured on the other
 1 119711 I SCC 370
452 Similarly in Rahim Khan vs Khurshid Ahmed  orsl Krishna Iyer J speaking for the Court most lucidly and aptly observed as follows An election once held is not to be treated in a light hearted manner and defeated candidates or disgruntled electors should  not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence there by introducing a serious element of uncertainty in the verdict already rendered by the electorate
An election is a  politically sacred public act not of one person or of one official but of the collective will of the whole constituency
Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the court to uphold the corrupt practice allege against the returned candidate is adduced
Indeed election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi criminal nature wherein strict proof is necessary
The burden is therefore heavy on him who assails an election which has been concluded
 To the same effect is the decision of this Court in Abdul Hussain Mir vs Shamsul huda and Another2 where this Court observed as fol lows Even so certain basic legal guidelines cannot be lost sight of while adjudging an election dispute
The verdict at the polls wears a protective mantle in a democratic polity
The Court will vacate such ballot count return only on proof beyond reasonable doubt of corrupt practices
Charges such as have been imputed here are viewed as quasi criminal carrying other penalties from losing a seat and strong testimony is needed to subvert a Returning officer s declaration
x x x x x When elections are challenged on grounds with a criminal taint the benefit of doubt in testimonial matters be longs to the returned candidate
Similarly in Ghasi Ram vs Dal Singh  others3 while emphasizing the standard of proof in an election case for a corrupt practice of bribery Hidayatullah J as he then was speaking for the Court observed thus In Anjaneya Reddy vs Gangi Reddy and others 21 ELR 247 it was held that the proof required to establish a corrupt practice must be almost of the character required to establish a criminal charge
In our opinion the law requires that a corrupt practice involving bribery must be fully established
The evidence must show clearly that the promise or gift directly or 1  2  3  453 indirectly was made to an elector to vote or refrain from voting at an election
 A We have gone through the judgment of the High Court particularly on issue Nos 7 26 and 27 and find that although in his prelude to the discussion on issue No 7 the learned Judge has referred to the various authorities and has correctly adumbrated the legal propositions he does not appear to have applied the principles enunciated in the decisions correctly to the facts or the evidence covered by this issue
It also appears that the learned Judge has applied two different standards in appreciating the evidence with respect to issues Nos 7 26  27 and other issues on which he has given findings against the contesting respondent
For instance while he has refused to accept the evidence of a partisan or an interested witness being staunch supporters of the contesting respondent on other issues particularly issue No 8 he has while dealing with the evidence of the witnesses on issue No 7 which suffers
from the self same infirmity readily accepted their evidence without even noticing the deep interest that these witnesses had in supporting or bolstering up the case of the contesting respondent
We shall however refer to this aspect of the matter after we have dealt with the evidence led by the parties on these issues
In the light of the principles enunciated by us we shall now proceed to discuss and examine the findings of the High Court on issue No 7 and the evidence led thereon by the parties
Issue No 7 was cast by the Trial Judge thus Did the 1st respondent the appellant commit a corrupt practice under section 1231 of the Representation of the People Act by making an offer to pay Rs 25000 to the petitioner and trying to induce him not to contest the election  To begin with we would like to refer to the pleadings of the contesting respondent in order to show the exact material particulars averred in the election petition itself
The allegation which is the subject matter of issue No 7 is to be found in paragraph 12 of the election petition appearing at p 23 of the Paper Book Vol
R Sultan the contesting respondent had alleged that he had applied for a Congress ticket for Gooty Assembly constituency and
was ultimately granted the said ticket by the Central Election Committee Delhi on February 1 1972
Although the DCC ad hoc Congress Committee Anantapur had recommended the name of the contesting respondent and others the Provincial Congress Committee recommended the name of the contesting respondent alone which was finally accepted by the Central Election Committee at Delhi
After having been given the Congress ticket the contesting respondent returned to Hyderabad on February 2 1972 and a day later he was contacted on telephone by Mustafa of Guntakal one of his supporters and had a talk with him regarding the filing of his nomination paper
The contesting respondent told Mustafa that he would be reaching Gooty on February 4 1972 for filing his nomination papers for the Gooty Assembly constituency and that Mustafa also should reach Gooty on the morning of February 4 1972
We might pause for a little while 454 here and notice two important averments
In the first place it was the definite case of the contesting respondent that his visit to Gooty on February 4 1972 was for the purpose of filing his nomination papers but it appears from the evidence that he did not file his nomination on this date but some time later
Secondly during his talk with Mustafa on the telephone the contesting respondent did not ask him to bring PW 29 Nabi Saheb and PW 33 Chinna Bhemanna with him to Gooty
Resuming the thread of averments in the election petition the further facts are that the contesting respondent reached Gooty on February 4 1972 at about 10 00 AM and proceeded to Bharat Sewak Samaj hereafter referred to as BSS  Building which is sometimes described as an office and sometimes as a Guest House in the evidence
PWs 29 and 33 and some others were waiting for the contesting respondent at the BSS Building
The contesting respondent then along with PWs 29 and 33 went to Taluk office for obtaining a copy of the voters list for the Gooty Assembly constituency and reached the Taluk office at about 11 00 AM
While he was returning from the Taluk office the appellant met the contesting respondent and wished him and after talking for some time he made an offer of Rs 25000 to be paid to the contesting respondent if he agreed to withdraw from the election and help the appellant
This offer is said to have been made in the presence of PWs 29 and 33
Even after the contesting respondent refused the offer he was again persuaded by the appellant to consider the same and on his final refusal the appellant threatened that the contesting respondent was bound to face defeat in the elections
It was also alleged that the appellant took the refusal of the offer as a challenge and spent money lavishly to win the election
The last part of the averment which forms the subject matter of issue No 8 and certain other issues has not been accepted by the High Court
These are the only particulars mentioned in the petition with respect to the offer of bribe which is the subject matter of issue No 7
In the course of the evidence
however a new fact was sought to be introduced by the contesting respondent namely that P Ws 29  33 returned to the BSS Building after the contesting respondent refused the offer of the appellant and then the two witnesses PWs 29  33 narrated the entire incident to PW 34 Mustafa and PW 22 Ramachandraiah and others
This fact was introduced in order to lend corroboration to the evidence of the contesting respondent and that of PWs 29 and 32
But as this was undoubtedly a material particular or an additional fact pertaining to the averments in paragraph 12 of the election petition and the same not having been mentioned has to be completely excluded from consideration
We shall
however
dilate on this matter when we deal with the evidence led by the contesting respondent on this point
In short therefore the story regarding the offer of bribery and the occasion for it may be conveniently divided into three stages Stage No 1
This stage starts with the decision of the Central Election Committee Delhi in giving the Congress ticket to the contesting respondent and as consequence there of his arrival at Hyderabad on February 2 1972
On reaching Hyderabad the contesting respondent 455 who is PW 16 received a telephone call from Mustafa who was asked to go to Gooty on February 4 1972 in order to meet the contesting respondent
Accordingly the contesting respondent reached Gooty on February 4 1972 and accompanied by PWs 29 and 33 left for the Taluk office
This is the end of the drama enacted in Stage No I
The facts are proved by PW 16 the contesting respondent himself by Mustafa PW 34 and by PWs 29 and 33
It may be mentioned here that all the witnesses examined to prove the facts covered by this stage are interested witnesses who are staunch supporters of the contesting respondent and there appears to be a serious discrepancy in the evidence led on this point
It appears from the evidence that when the contesting respondent reached BSS Building apart from PWs 29 and 33 PWs 34 and 22 were also present
PWs 34 and 22 however did not accompany the contesting respondent to the Taluk office
PW 22 Ramachandraiah says that he did not go tor the Taluk office because of ill health and PW 34 Mustafa says that he did not go as he had some work at the Railway Station
It may also be noticed that in paragraph 12 of the election petition where the material particulars are given by the contesting respondent while it is clearly mentioned that when the contesting respondent reached Gooty PWs 29  33 were there the name of PW 22 is not specifically mentioned as being present at Gooty
It would appear from the evidence of PW 22 that he was a great friend and supporter of the contesting respondent and even the learned Judge has commented on the deep interest which PW 22 had shown in order to support the case of the contesting respondent
It is therefore difficult to believe that if PW 22 would have been present at the BSS Building how could the contesting respondent have omitted to mention the name of his most confident friend and supporter in paragraph 12 of his election petition
This taken together with the fact that PW 22 had given a lame excuse for not having accompanied the contesting respondent to the Taluk office clearly throws a considerable amount of suspicion on the presence of PW 22 at Gooty on February 4 1972
Similarly while PW 34 Mustafa gives a specific reason why he had not accompanied the contesting respondent to the Taluk office
namely that he had some work at the Railway Station which is also deposed to by PW 16 himself yet this fact which was within the knowledge of the contesting respondent at that very time is not mentioned in the election petition
Another important circumstance that has to be noticed is that whereas in the election petition it is the definite case of the contesting respondent that he had to go to Gooty on February 4 1972 for filing his nomination papers the evidence shows that the did not file the nomination papers at all on that date but he merely applied for the voters list of the constituency
This is important because while it may have been relevant for PWs 29  33 to accompany the contesting respondent to the Taluk office if it was the question of his filing nomination papers their presence at the Taluk office was not at all necessary if the contesting respondent had merely to take a copy of the voters list which could have been done by him alone
PW 16 the contesting respondent has no doubt proved the facts mentioned above
Similarly PW 34 has supported the contesting 456 respondent regarding his having a talk with the contesting respondent on the telephone and his being asked to go to Gooty on February 4 1972
PWs 29 and 33 have also said that they were asked by PW 34 Mustafa to accompany him to Gooty in order to meet the contesting respondent
Thus so far as the facts in stage No
I are concerned whether they are true or not they do not appear to be very relevant for the purpose of issue No 7
Stage No 11 This brings us to stage No 2 which is the bulwark aud the bedrock of the case of the contesting respondent regarding the offer of bribe said to have been made by the appellant to him
So ar as this stage is concerned the only evidence that the contesting respondent has given consists of the testimony of PWs 29 and 33 apart from his own evidence
We would first deal with the evidence of PWs 29 and 33 before coming to the evidence of the contesting respondent himself
PW 29 Nabi Saheb appears to be one of the most interested witnesses and a great friend and supporter of the contesting respondent
He admits at p 498 of the Paper Book Vol
Ill that both the witness and Mustafa PW 34 worked for the contesting respondent during the recent general elections
He then says that Mustafa approached him on February 3 1972 and requested him and W 33 Chinna Bhemanna to accompany him to Gooty
The witness further admits that the contesting respondent R Sultan and he had been friends for the last ten years
A suggestion was given by the appellant that his younger brother Khaja Hussain was godown keeper of the BSS at Guntakal and he was arrested on the charge of sling goods and that the contesting respondent Sultan had helped him
The witness admits at p 501 of the Paper Book Vol
III that the police had no doubt arrested his younger brother who was a Godown Keeper of the BSS and he further admits that the case was later shown out
He however denied the suggestion that Sultan helped his brother
It is however admitted by Sultan PW 16 at p 307 of the Paper Book Vol II that he was the Secretary of the BS section and was therefore obviously in a position to help the brother of the witness
In these circumstances therefore to begin with the Court has to approach the evidence of this witness with great care and caution because be was not only a close friend of the contesting respondent but was also his supporter and worker and he was interested in giving evidence which may result in the election of the appellant being set aside He states that when the contesting respondent decided to go to the Taluk office on February 4 1972 PW 34 Mustafa did not accompany the party because he had some work at the Railway Station with the result that PW 33 and the witness only accompanied the contesting respondent
The witness further stated that he accompanied the contesting respondent to the Taluk office but PW 33 Ramachandraiah stayed behind as he was not keeping good health
Thereafter when the contesting respondent came out of the Taluk office the party went towards the place where the car was parked when on the way the appellant met them and greeted the contesting respondent
There the appellant is said to have offered Rs 25000 if the contesting respondent agreed not to contest the election
Sultan laughed and 457 spurned the offer
The witness as also PW 33 Chinna Bheemanna told the appellant that Sultan the contesting respondent did not require the money when the appellant repeated the offer which was again refused
Thereafter the party returned to the BSS Building where PW 22 Ramachandraiah and PW 34 Mustafa and others were waiting in the office of the BSS
Both the witness and PW 33 narrated the incident relating to the offer of bribe to Mustafa PW 33 and Ramachandraiah PW 22
PW 33 Chinna Bheemanna who is the other witness has narrated more or less the same facts regarding their reaching the BSS Building at Gooty their accompanying the contesting respondent to the Taluk office the offer of bribe made by the appellant and the narration of the facts to PWs 22 and 34
PW 16 the contesting respondent had also deposed to these facts
C The learned Judge has accepted the evidence of these witnesses because he thought that there was no major discrepancy in the testimony of these witnesses
Further more the learned Judge has on a consideration of the evidence of PWs 23 38 39 and 41 held that both the contesting respondent and the appellant were present at Taluk office on February 4 1972 near about 12 Noon and from their presence he appears to Lave presumed that the offer of bribe must have been made
We are however unable to agree with this somewhat unusual process of reasoning
The mere fact that the contesting respondent and the appellant happened to be present at the Taluk office on February 4 1972 at about the same time does not necessarily lead to the inference that the appellant must have made the offer of bribe which is quite a different fact and has to be proved separately and independently
Indeed if one has to wander in the domain of conjectures then it can be equally said of the contesting respondent that the presence of the appellant at the same day and time at the Taluk office furnished him an occasion to concoct and bolster up a case of the alleged offer of bribe by the appellant to the contesting respondent and in order to prove this allegation the contesting respondent had no difficulty by enlisting the support not of any independent witness but his own stooges hirelings or friends and supporters
While therefore we agree with the finding of the learned Judge that the appellant and the contesting respondent were no doubt present at the Taluk office on February 4 1972 it by no means follow that the story of the offer of bribe is true on this ground alone
In fact the learned counsel for the appellant also has not disputed the fact that the contesting respondent or the appellant were actually present in the Taluk office on February 4 1972 at the relevant time a fact which is proved by independent witnesses and documentary evidence
What the learned Judge has overlooked is the fact that while it is very easy to make an allegation of an offer of bribe it is very difficult for the person against whom the allegation is made to rebut the same
The learned Judge also failed to consider that the actual offer alleged to have been made by the appellant to the contesting respondent has been proved only by the partisan and highly interested testimony of PWs 29 and 33 which was sought to be corroborated by equally interested testimony of PWs 22 and 34 and no attempt was made to examine any independent witness even 458 though the evidence was that at the BSS Building apart from PWs 22 and 34 other persons were also present
So far as PW 29 is concerned we have shown that he is a thoroughly interest ed witness being a close friend of the contesting respondent
PW 33 Chinna Bheemanna is also a partisan witness
He admits that he was a worker of Sultan during the last elections
He further admits at p 536 of the Paper Book Vol
III that he tried to procure the B  evidence of one Sunkanna for the contesting respondent in this respect
The witness deposed thus Sultan asked Sunkanna to come and give evidence in this case
Yesterday when I was coming here I approached Sunkanna
But at that time he was not in his house
Then I sent another person to Sunkanna asking him to come to Hyderabad to give evidence
 This shows the extent to which the witness could go in order to support the case of the contesting respondent
The witness further admits that he was a member of the BSS and therefore a colleague of Sultan
It seems to us that the evidence of PWs 16 29 and 33 regarding the offer of bribe in the circumstances mentioned by them is inherently improbable
In the first place it would appear from the topography of the spot where the talk between the contesting respondent and the appellant took place that the place was a crowded one and was situated in the heart of the Taluk office surrounded by the District Munsif Court
According to PW 16 apart from the District Munsif s Court there were four other offices in that compound and that there was a crowd near the District Munsif s Court
He also admits that there was a canteen in between the Taluk office and the District Munsif s court where people were sitting
Similarly PW 29 has admitted that the canteen was situated only at a distance of 10 to 15 yards from the place where the talk regarding the offer of bribe took place and that the District Munsif s Court was at some distance from the canteen
He also admits that the litigant public sit under the trees near the Munsif s Court
The distance between the Munsif s Court and the place where Sultan s car was parked would be about 30 to 40 yards
In view of these surroundings it is most unlikely that the appellant would make an offer of bribe to the contesting respondent in such an open and crowded place where he could be exposed by Sultan at any time
The offer of bribe was undoubtedly a criminal act and the Munsif s Court being near at hand  the appellant would have faced a grave risk in making such an offer
Further more  it appears that the appellant was not fully acquainted with Sultan the contesting respondent though he may have seen him once or twice
No one makes an offer of bribe to strangers without knowing their reaction
Further more it is impossible to believe that even if the offer of the bribe is made it would be made in the presence of the witnesses who were accompanying Sultan so that the person who makes the offer of bribe would be a party to the creation of clear evidence against him
It is absolutely against the normal and prudent human conduct to make such an offer at a crowded place in the presence of the two witnesses who were known to be the supporters of the contesting respondent and persist in making the offer in site of the blunt refusal of the same by the contesting respondent
On the other hand the natural conduct of the appellant would have 459 been to take the contesting respondent to a secluded spot where he A would not be seen or heard by any body  and then make the offer
In fact PW 16 clearly suggests that the appellant had taken him aside but he says that the other witnesses did not part with his company and also came  there and yet the appellant did not object to their presence
We find it difficult to believe that the offer of bribe would be made by the appellant in these circumstances
The learned Judge however has tried to draw an artificial distinction between an offer of bribe and a payment of actual bribe
He seems to think that whereas an offer of bribe could be made in a crowded place in the presence of the witnesses as no money wasto be passed yet when actual payment of bribe was to be made it should have been done in a secluded place
This reasoning of the learned Judge is not at all intelligible to us
Under the provisions of section 1231A of the Act an offer of bribe or payment of actual bribe are both electoral offences amounting to corrupt practices which are to be visited with similar consequences
The offences of an offer of bribe or of actual payment of bribe were of the same nature and it cannot be said that one is a lesser crime and the other is a graver one
Neither the criminal law nor the election statute seek to draw any distinction between an offer of bribe or actual payment of bribe
In these circumstances therefore whether it is an offer of bribe or it is a payment of actual bribe normal human conduct requires that if a person intends to commit such an offence he would not do so in a crowded place but would try to find out a secluded spot so that complete secrecy is maintained
Another important circumstance that makes the story put forward by the witness regarding  the offer of bribe absolutely incredible is the absence of any genesis or occasion for the presence of the witnesses at the Taluk office or for that matter for accompanying the contesting respondent Sultan to the Taluk office
To begin with we have already indicated that in paragraph 12 of the election petition the main purpose of the visit of the contesting respondent Sultan to the Taluk office was to file his nomination papers
Indeed if this was the purpose of his visit one could have understood the significance of Sultan s asking his supporters accompanying him to the Taluk office because the filing of nomination papers is one of the most important and momentous steps in the electoral process
From the evidence of the witnesses as also that of Sultan the contesting respondent it is clear that Sultan did not at all go to the Taluk office for the purpose of filing his nomination papers but had only applied for a copy of the voters list For this purpose the presence of PWs 29 and 33 was not at all necessary
Even PW 29 says at p 502 of the Paper Book Vol
III that Sultan had told the witness that he was going to the Taluk office to purchase the voters list
Further more even though the witnesses accompanied Sultan they do not appear to have given him any worthwhile assistance Both PWs 29 and 33 categorically state that they did nothing at all at the Taluk office except sitting in the verandah
PW 29 states as follows We sat in the front verandah of the Taluk office along with Sultan
With whom Sultan spoke and what he did in the Taluk office I do not know
 460 It would therefore be clear from the evidence of this witness that except for sitting in the verandah there was absolutely no occasion for their presence at the Taluk office nor there was any earthly reason why Sultan should have taken them to the Taluk office except for the fact that he wanted them to witness the offer of bribe
This however could not be possible because there was nothing to show that Sultan knew before hand that he would meet the appellant at the Taluk office and that the appellant would make an offer of bribe to him
This circumstance therefore which is in some variance from the allegation made in the pleadings smacks of a concoction and throws a good deal of doubt on the presence of these two witnesses at the Taluk office
We have already indicated  that both PWs 29 and 33 are thoroughly interested witnesses
PW 33 apart from being a worker of Sultan is a member of the BSS Of which the contesting respondent Sultan is the Secretary
The only other witness so far as the facts in Stage No II are concerned is PW 16 the contesting respondent himself
PW 16 is the most interested witness who also bears serious animus against the appellant
It would appear from his evidence that the appellant held at the instance of one K Suryanarayana Reddi filed a complaint against the contesting respondent for cheating and that the contesting respondent had filed a petition in the High Court for quashing the 3 investigation in pursuance of the complaint
He further stated that  he had also filed a criminal complaint against Suryanarayana Reddi in the Magistrate s Court at Gooty and
PWs 22 and 29 had been cited as witnesses in that case
Apart from the animus it would also appear that PWs
22  29 are stock witnesses of the contesting respondent to be utilised wherever and whenever necessary
Further more PW 16 narrates an incident at the Travellers Bungalow at Anantapur which happened before the general elections of 1972 in the presence of Challa Subbarayudu where again the appellant seems to have requested him not to contest the elections
This fact is not mentioned in the election petition at all and it seems to us that it has been concocted for the first time in the evidence of PW 16 in order to give credence to his version that the appellant had made an offer of bribe
Another inherent improbability in the version given by PW 16 and PWs 29  33 regarding the offer of bribe is that the appellant i himself was aspiring for the Congress ticket and was therefore fully conscious and aware that the influence that the Congress party wielded and the resources it possessed
He was also aware that the contenting respondent Sultan was a Congress nominee having been granted the Congress ticket by the Central Election Committee and he had therefore the support of such a big party behind him
Would he under these circumstances ever dare to think of making an offer of bribe and that too at a crowded place in the presence of the witnesses of all persons to the contesting respondent and persist in that offer even after the same was refused by the contesting respondent
These two circumstances appear to introduce an element of intrinsic infirmity in the evidence led by the contesting respondent on this point and the story appears to us to be too good to be true
461 Another important circumstance that makes the story of the contesting
respondent on this point improbable and untrue is the fact that the appellant should have made an offer of bribe as early as February 4 1972
According to the evidence the last date for filing nomination papers was February 8 1972 and for withdrawal was February 11 1972
If the appellant had succeeded in persuading the contesting respondent to accept his offer and withdraw from the Contest even then that would not have served the purpose of the appellant because with the resourcefulness that the Congress party possessed it could have set up any other nominee immediately who would have filed the nomination papers by February 8
In these circumstances if the appellant was really bent upon seeing that no Congress candidate entered the field he would have made the offer of bribe if any either on February 7 1972 or February 8 1972 so that no chance was given to any party to sponsor any other candidate
Lastly the conduct of the contesting respondent is a clear pointer to the incredibility of the version propounded by him and his witnesses on this point
Assuming that the version given by the contesting respondent is true then it was a very serious matter so far as the prestige of the Congress party was concerned
By offering bribe to a Congress nominee the appellant had sought to throw a challenge to the party itself
In his election petition PW 16 has also mentioned the fact that the appellant had thrown a challenge on his refusal that he would be defeated
It would appear from the evidence of PW 22 at p 428 of the Paper Book Vol
III that after returning from the Taluk office and having lunch the witness Sultan and Mustafa r went to Anantapur
It would appear from paragraph 12 of the election petition that the District Congress Committee office is situated at Anantapur
PW 29 also states at p 500 of the Paper Book Vol
III that PW 22 Mustafa PW 34 and Sultan left for Anantapur
PW 34 Mustafa also states at P 548 of the Paper Book Vol
III that when the incident about the offer of bribe by the appellant was narrated to him he said that it was monstrous to sell away the Congress ticket
Indeed if this was the feeling of PW 16 and his supporters then it is impossible to believe that had the offer been made by the appellant at Gooty either Sultan or his supporters would not make a complaint of this serious incident to any of the office bearers of the District Congress Committee at Anantapur particularly when they went to Anantapur soon after the incident from Gooty
The fact that no such report or information was sent to the District Congress Committee at Anantapur or any where else throws a mountain of cloud of suspicion and doubt on the version put forward by the contesting respondent
The learned Judge has noticed some of the improbabilities mentioned above but not all of them and seems to have brushed them aside on trivial grounds and has readily accepted the evidence of the P Ws merely because there was no major discrepancy in the evidence of the witnesses
In our opinion the approach made by the learned Judge was not correct
If the broad probabilities and the unusual conduct of the contesting respondent and the witnesses rendered the version presented by them unbelievable or doubtful then the Court could not refuse to take notice of such 15 522SCI76 462 circumstances
For these reasons therefore we find ourselves unable to agree with the learned Judge that the offer of bribe at Gutty Taluk office as alleged by PW 16 and PWs 29  33 was made by the appellant to PW 16
We therefore disbelieve the facts sought to be proved by the contesting respondent in Stage No II
This bring us to the last scene of the drama namely Stage No Ill
According to the contesting respondent after the offer made by the appellant to the contesting respondent was refused by him in the Taluk office the contesting respondent along with PWs 29 and 33
returned to the BSS Building at Gooty
On return to the BSS Building they found PWs
22 Ramachandraiah and PW 34 Mustafa there
According to PWs 29 and 33 the witnesses were laughing and when they were asked by PWs 22  34 they narrated the entire incident which had happened at the Taluk office
According to PW 16 however when he arrived at the BSS Office after his visit to the Taluk office PWs 22 and 34 asked him as to what is the news and instead of replying to them PWs 29  33 narrated the incident which happened at the Taluk Office namely the offer of the bribe
PWs 29  33 have however given a slightly different version
But what is most extraordinary in this incident is that whereas in ordinary circumstances we would have expected Sultan the contesting respondent himself who was the hero of the whole show and to whom the offer of the bribe had been made by the appellant to narrate the facts to his friends PWs 22 and 34 but instead of that Sultan remained absolutely silent and PWs 29  33 were assigned the role of doing the talking
This conduct of the contesting respondent is not at all understandable
Again there does not appear to be any good reason why PW 22 Ramachandraiah and PW 34 Mustafa were left behind and not taken to the Taluk office
According to P W 22 he did not go because of ill health
This appears to us to be a figment of his imagination
If PW 22 in spite of his ill health could come all the way from his house to the BSS Office and waited there right from morning until the afternoon there was no reason why he should not have accompanied the contestingrespondent to the Taluk office
PW 34 gives a lame excuse that he had some work at the Railway station and therefore he could not accompany the party to the Taluk office
It seems to us that as the allegation regarding the offer of bribe was a totally untrue one and no independent witnesses would have been prepared to support this version the contesting respondent hit upon a plan to prove this allegation through his supporters and friends by making two of them to overhear the alleged offer of bribe and the other two namely PWs 22  34 to remain at the BSS Office to hear the narration of the said offer and thereby produce a corroborative evidence
 otherwise we do not see any earthly reason why PW 34 Mustafa who was playing a leading part in the drama enacted on February 4 1972 and who was responsible for getting the programme from the contesting respondent and collecting his other friends at Gooty should not have accompanied the contesting respondent to the Taluk office in order to help him in getting the forms and stayed away on the lame excuse that he had some work at the Railway Station
It appears to us that according 463 to the evidence of PW 16 as also the averments made by him in the election petition PW 34 Mustafa was taking a very prominent part in the affairs of the contesting respondent on his return to Hyderabad
It was he who telephoned the contesting respondent brought his companions to Gooty stayed at Gooty and accompanied the contesting respondent and others to Anantapur and yet he did not accompany the contesting respondent to the Taluk office
It seems to us that PWs
22  34 were deliberately made to stay at the BSS Office so 4 as to corroborate the story put forward by PWs 16 29 and 33 being persons to whom the story was immediately narrated
Apart from this there does not appear to be any object for keeping these two persons at the BSS Office
Finally the evidence shows that apart from P Ws 22  34 there were other persons present at the BSS Office but none of them has been examined to support the version given by PWs 22  34
These two witnesses were close friends and supporters of PW 16 and their evidence would not inspire any confidence
So far as PW 22 is concerned he admits that he worked for the election of Sultan at Gooty and supported the Congress party
He further admits that he toured various villages with Sultan
He was also the counting agent of Sultan having been appointed by him as per Ext
He was also an employee of the BSS and had been appointed by Sultan
Sultan was the Managing Director of Brim Stone Rubber Products Ltd The witness was a partner of the firm which had the sole agency for the products of the aforesaid firm
Apart from that the witness admitted that he was a staunch supporter of the Congress
Even the learned Judge has clearly observed that this witness was keenly interested in the future of Sultan and in this connection while dealing with issue No 8 the learned Judge observed as follows Because of the great enthusiasm shown by this witness PW 22 in the witness box while giving evidence on be half of the petitioner which is still fresh in my mind I am unable to accept the evidence of this witness as disinterested evidence
 The learned Judge however appears to Have readily believed the evidence of this witness on issue No 7 forgetting the scathing remarks which he himself had made on the demeanour of this witness with regard to the issue No 8
Similarly PW 34 Mustafa is also an equally interested witness and admits that he worked for the Congress and he had been a friend of Sultan for ten years
He also admits that he had worked for Sultan even in the 1962 elections
In these circumstances we are unable to place any reliance on the evidence of this witness
In fact if the evidence of PWs 16 29  33 is disbeileve do the question of the offer of bribe then the evidence of PWs 32  34 also falls automatically because if there was no offer of bribe there was nothing to be narrated to these witnesses
Finally the most important ground on which the evidence of these two witnesses has to be completely excluded is the fact that PWs 29  33 narrated the incident 464 to these two witnesses which is undoubtedly a very material particular and it is conspicuous by its complete absence in paragraph 12 of the election petition where the facts on which issue No 7 was framed have been pleaded
The facts deposed to by PWs 22 and 34 are not merely a matter of evidence but a very important material particular which seeks to corroborate the interested evidence of PWs 16 29  33 and it is difficult to believe that had this been true the contesting respondent would not have cared to mention this fact in his petition
In This connection it may be interesting to note that PW 16 has admitted in his evidence at p 303 of the Paper Book Vol II that on 15th or 16th of March 1972 the Returning officer had suggested to the contesting respondent to file an election petition if he was defeated and since then the witness was making enquiries to collect material for filing an election petition
If this was really so and the contesting respondent was careful enough to gather the materials long before he filed his election petition it is difficult to comprehend that he would make no mention of this important fact in his petition
Lastly the contesting respondent states in his evidence at p 304 of the Paper Book Vol
II that in respect of the threats said to have been administered by the appellant on 5th or 6th of March 1972 he had drawn the attention of the police officer and had contacted the Deputy Superintendent of Police of Guntakal
Indeed if the contesting respondent was so vigilant would he not have drawn the attention of any police officer of Gooty to the offer of bribe made by the appellant or the threats or challenge thrown by him to the contesting respondent  In view of the improbabilities and the compelling circumstances mentioned above we are clearly of the opinion that the contesting respondent has not been able to prove his allegation regarding the offer of bribe made by the appellant to the contesting respondent at the Taluk office as alleged by him beyond any shadow of doubt
The learned Judge has observed that as against the evidence produced by the contesting respondent there is a bare denial by the appellant
The learned Judge seems to have laid stress on the words that the appellant alone has denied the allegation and seems to suggest that he has not examined any witnesses in support of the denial
The learned Judge failed to appreciate that according to PWs 16 29  33 there was no one else at the time when the appellant had made the offer of bribe to the contesting respondent excepting four persons namely PW 16 Sultan PW 29 Nabi Saheb PW 33 Chinna Bheemanna and the appellant
The three persons deposed in support of the story of the contesting respondent and the appellant was therefore left alone who denied the story completely
It could not be expected of the appellant to concoct or procure witnesses when there could be none
As the offer of bribe was an electoral offence amounting to a corrupt practice which partakes of a quasi criminal nature the onus was initially on the contesting respondent to prove this fact
As the contesting respondent has failed to prove this fact
he must fail
Indeed if such serious and momentous allegations made against successful candidate are allowed to be proved by interested and partisan evidence as in the present case without any corroboration and where 465 the evidence adduced is highly improbable and unworthy of credence it would give an easy handle to any defeated candidate to unseat a duly elected candidate by collecting evidence of his friends and supporters which will undoubtedly destroy the very sanctity and purity of the electoral process
Thus in view of the cumulative effect of the compelling circumstances the inherent improbabilities me intrinsic infirmities and  the unnatural human conduct disclosed by the evidence produced by the contesting respondent leads us to the inescapable conclusion that the contesting respondent has failed to prove the allegation of the offer of bribe which is the subject matter of issue No 7 beyond any shadow of doubt
Therefore issue No 7 is decided against the contesting respondent and the finding of the learned Judge in favour of the contesting respondent on issue No 7 is set aside
This bring us now to the discussion of issues Nos 26  27 the only other issues which remain to be decided in the present appeal
Issues Nos
26 and 27 may be extracted thus 26 Whether the 1st respondent the appellant committed a corrupt practice under section 123 3 A of the Representation of the People Act by issuing a pamphlet dated 20 2 1972 to create ill feelings among the voters on religious D grounds and if so has it materially affected the result of the b election of the petitioner as stated in para 39 of the Election Petition  27 Whether the said persons distributed the pamphlet with the consent of the 1st respondent the appellant  The facts comprising issues Nos 26  27 are mentioned in paragraph 39 of the election petition and relate to two separate and independent allegations 1 The distribution of objectionable pamphlets of the nature of Ext
A l which contained communal propaganda and sought to persuade the voters to vote on purely communal grounds personally by the appellant to various persons in various villages and 2 the distribution of such pamphlets by the workers and agents of the appellant with his consent to a number of persons belonging to a large number of villages
It would therefore be seen that the two types of allegations are essentially different and cannot be said to form one composite allegation
We have adverted to this aspect of tile matter because Mr Basi Reddy for the appellant has vehemently con tended before us that no foundation has been laid by the contesting respondent in his election petition regarding the distribution of the pamphlets by the workers and agents of the appellant as indicated in item 2 supra
It was further contended that this matter does not merely constitute a material particular of a specific fact which should have been mentioned in the petition but is a separate item of fact itself and as there is no allegation to this effect in the election petition the same should be excluded from consideration and the evidence given by the contesting respondent on this point must be completely ignored
The learned counsel for the contesting respondent how ever sought to repel this argument on the ground that a broad construction of the petition filed by the contesting respondent would 466 clearly show that sufficient foundation has been laid in the petition for these allegations which were later amplified by giving the material particulars after the application for amendment of the petition was made by the contesting respondent before the High Court
In these circumstances we would like to dispose of the contention of the parties on this point before proceeding to the merits of issues Nos 26  27
In paragraph 39 of the election petition as it stood before the amendment the contesting respondent alleged that the appellant had issued a pamphlet dated February 20 1972 in furtherance of his election prospects and the pamphlet issued was distributed among the voters throughout the Gooty Assembly constituency which caused ill feelings among the voters on Religious grounds
It was further alleged that by distributing the pamphlet the appellant indulged in creating hatred and ill feelings among the voters in the constituency and there fore committed corrupt practice
In order to understand the import of the allegations made in paragraph 39 of the petition it may be necessary to extract the relevant part of it thus 39
The petitioner states that 1st respondent the appellant issued a pamphlet dated 20 2 72 for the furtherance of his election prospects and the pamphlet issued and distributed among the voters throughout the Gooty Assembly
Constituency has caused lot of set back and it created ill feelings among the voters on religious grounds
He criticised the Muslim voters on religious and communal lines
  The petitioner received several complaints in the village that the pamphlet issued and distributed by 1st respondent has caused feelings of enmity hatred between Hindus and Muslims and this has created disharmony among the voters
  The pamphlet issued and distributed by the Ist respondent is herewith enclosed as annexure No 5
 We have underlined the portions on which we propose to lay particular emphasis
It would be seen from the perusal of the allegations made in paragraph 39 extracted above that there is absolutely no averment that the pamphlet issued by the appellant was distributed by the agents workers of supporters or friends of the appellant
The only fact averred in pagagraph 39 of the petition is that the pamphlet in question was distributed by the appellant alone
This fact is clearly evident from the portions extracted and underlined by us
In these circumstances it was rightly contended by the learned counsel for the appellant that there was no pleading at all by the contesting respondent that the pamphlet was distributed by his agents workers or supporters and therefore the particulars supplied by the contesting respondent in his application for amendment on this point must be completely disregarded
In order to appreciate this contention it may be necessary to examine the concerned provisions of the Act
Section 81 of the Act clearly provides that the election petition shall be filed within forty five days from the date of election of the returned candidate and runs thus 467 81
1 An election petition calling in question any election may be presented on one or more of the grounds specified in sub section 1 of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from but not earlier than the date of election of the returned candidate or if There are more than one returned candidate at the election and the dates or their election are different the later of those two dates
 It is obvious therefore that any allegation of corrupt practice which is not made in the election petition filed within the time allowed by the statute cannot be allowed by way of an amendment under section 865 of the Act because that would amount to extending the period of limitation peremptorily fixed by the Act
Power of amendment of the election petition as contained in section 865 of the Act is clearly confined to allowing the particulars of any corrupt practice which has been set out and clearly alleged and specified in the election petition
Subsection 5 of section 86 of the Act runs thus The High Court may upon such terms as to costs and otherwise as it may deem fit allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition but shall not allow any amendment of the petition which have the effect of introducing particulars of a corrupt practice not previously alleged in the petition
It would be seen that the ambit of this statutory provision is extremely narrow so that the power of amendment or amplification is restricted only to amplify the material particulars of any corrupt practice which had been previously alleged in the election petition
In other words the sub section requires three essential conditions to be fulfilled before an amendment could be allowed 1 that the amendment seeks merely to amplify the particulars of a corrupt practice 2 that the corrupt practice whose particulars are to be given must have been previously alleged in the election petition itself and 3 that the amendment is in the opinion of the Court necessary For ensuring a fair and effective trial of the petition
Thus the three conditions mentioned above are the sine qua non for the exercise of the power by the court under sub s 5 of section 86 of the Act
It is therefore manifest that the Court has no power to allow the amendment by permitting the election petitioner to amplify a material particular of a corrupt practice which is not specifically pleaded in the election petition itself for that would amount to introducing a new corrupt practice after the expiry of the period of limitation a result which was never envisaged or contemplated by the statute
This matter fell for determination of this Court in Samant N Balakrishna etc
vs George Fernandez and others etc
1 where Hidayatullah CJ speaking for the Court observed as follows 1  468 The power of amendment is given in respect of particulars but there is a prohibition against an amendment which have the effect of introducing particulars of a corrupt practice not previously alleged in the petition
One alleges the corrupt practice in the material facts and they must show a complete cause of action
If a petitioner has omitted to allege a corrupt practice he cannot br permitted to give particulars of the corrupt practice
   In the scheme of election law they are separate corrupt practices which cannot be said to grow out of the material facts related to another person
Publication of false statements by an agent is one cause of action publication of false statements by the candidate is quite a different cause of action
Such a cause of action must be alleged in the material facts before particulars may be given
One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice
They constitute different causes of action
Since a single corrupt practice committed by the candidate by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election the case must be specifically pleaded and strictly proved
if it has not been pleaded as part of the material facts particulars of such corrupt practice cannot be supplied later on     If the material facts of the corrupt practice are stated more or better particulars of the charge may be given later nut where the material facts themselves are missing if is impossible to think that the charge has been made or can be later amplified
This is tantamount to the making of a fresh petition In our opinion the facts of the present case and the nature of the averment contained in the election filed by the contesting respondent is clearly covered by the ratio of the decision cited above
It may be pertinent to note that in this case also the question is whether publication of false statements was by the candidate himself or by his agents and since what has been pleaded is only the distribution of the pamphlet by the appellantcandidate alone and not by his agents or workers with his consent the court had no jurisdiction to allow particulars to be given with respect to the fact that pamphlet was distributed by the agents and supporters of the appellant to various persons in various villages as given in the schedule
The learned counsel for the contesting respondent conceded the central weakness in this part of the case but he tried to persuade us to hold that the words pamphlet issued and distributed among the voters throughout the Gooty Assembly Constituency tend to include not merely the distribution of the pamphlet by the appellant himself but also by his agents and workers
We are however unable to agree with this contention because reading the averments contained in paragraph 39 as a whole however the broadly or liberally the same may be construed the irresistible 469 inference is that the contesting respondent has laid special stress on the fact of distribution of the pamphlet by the appellant alone
At least at three places underlined by us in the extracted
portion of the pleadings of the contesting respondent he has over emphasized the fact that the distribution of the pamphlet was made by the appellant him self
Wherever the averment of distribution of the pamphlet is made in the election petition it is said that the same was done by the 1st n respondent before the High Court namely the appellant
In these circumstances therefore we are not in a position to agree with the r interpretation sought to be placed by Mr Shiv Shankar learned counsel for the contesting respondent on the pleadings of the contesting respondent which in fact is not borne out by the allegations mentioned in paragraph 39 as extracted above
The learned counsel for the con testing respondent with fairness and ingenuity did not pursue the matter further and submitted that if his contention regarding the wider interpretation which he sought to put is not accepted then he would concede that the amendment in respect of issue No 27 should not have been allowed and the particulars mentioned by the contesting respondent on this item must be disregarded and the evidence given by the contesting respondent should be excluded from consideration
It appears however that as the attention of the learned Judge does not appear to have been drawn to this aspect of the matter he allowed 11  the amendment as also the evidence on issue No 27 and also proceeded to give his finding thereon
As however this is a pure question of law and amounts to violation of the statutory mandate contained ill section 86 5 of the Act this Court has to give effect to the violation of the statutory provision
For those reasons therefore we hold that there is no pleading by the contesting respondent that the pamphlet was distributed by the agents or workers of the appellant with his consent to various persons
The order of the High Court therefore along with the particulars given by the contesting respondent in item 1A in the schedule to the application for amendment is set aside and the said amendment is deleted from the election petition
As a legal consequence thereof the evidence given by the contesting respondent on issue NO
27 has to be excluded from consideration and the finding of the learned Judge on issue No 27 is hereby set aside and issue No 27 is deleted
This disposes of the finding of the High Court so far as issue No 27 is concerned
Before dealing with the facts comprising issue No 26 it may be necessary to mention a few circumstances which may be extremely relevant for examining the probative value of the case of the contesting respondent on this issue
The election petition was filed before the High Court on April 20 1972 ie about a month and a few days after the results of the election were announced
The contesting respondent has clearly admitted in his evidence at p 303 of the Paper Book Vol II that as far back as March 15 1972 he had started making enquiries and collecting materials for filing the election petition
The witness stated thus All this talk metween Ravindra Choudhary and myself took place at about 3 00 PM at the Gutti Bus Stand on 15th or 16th of March 1972
It was on the very day when the 470 Returning officer suggested to me on phone to file an Election Petition that that idea entered into my mind to file an election petition in case I was defeated
Since then I was making enquiries to get material for filing an election petition
Whenever I used to get any information regarding the elections I used to go to those places to make enquiry To begin with therefore the contesting respondent had started making full and frantic preparations for filing election petition a month before he filed the same
In these circumstances it can be safely presumed that before filling the election petition the contesting respondent must have collected all the materials which enabled him to give the necessary details and material particulars of the corrupt practices which he sought to allege against the appellant and which formed the bedrock of his case
Against this background therefore we should have expected the contesting respondent to mention not only the corrupt practices committed by the appellant but also to give various particulars thereof without taking recourse to the necessity of having to amplify the particulars by virtue of an amendment and that too when reminded of the same by the appellant himself
So far as the allegations in paragraph 39 are concerned it would appear that prior to the amendment no particulars or detail of distribution of the pamphlet had been mentioned by the contesting respondent at all
All that was said was that the appellant had distributed the pamphlet of a communal nature in order to incite communal feelings between the Hindus and the Muslims
It was not stated to whom the pamphlets were distributed by the appellant and on what dates were the pamphlets distributed by the appellant to the villagers
Neither the names of the villages nor of the persons to whom they were distributed were mentioned
In fact when we deal with the evidence on this point it would appear that before filing the election petition the contesting respondent had been fully apprised of the fact that the pamphlets had been distributed to various persons in various villages and yet he failed to give any further particulars in the election petition
Continuing the historical background of the election petition the position is that two days after the election petition was filed the High Court closed for vacation on April 22 1972 and re opened on June 10 1972
Even after the re opening no attempt was made by the contesting respondent to file an application for amendment nor to amplify the material particulars of the corrupt practices which he alleged in paragraph 39 of the petition
Strangely enough it was the appellant who filed an application on July 27 1972 ie after about a month and a half later where r  in he prayed to the Court that the contesting respondent may be directed to file better particulars of the corrupt practice alleged by him
Even after the contesting respondent was reminded by the appellant through his application the contesting respondent took full one month to file his application for amendment which was subsequently allowed by the Court
By virtue of the amendment the only particulars that the contesting respondent gave were the names of the villages given in a schedule where the appellant distributed the pamphlet and the dates on which the pamphlet was distributed
In spite of having been given a full and complete opportunity to disclose the essential details 471 and the material particulars of the distribution of the pamphlet by the A appellant the contesting respondent did not mention the name of a single person to whom the pamphlet had been distributed by the appellant whereas the evidence led by him shows that some of the individuals to whom the pamphlet is alleged to have been given by the r appellant had actually informed the contesting respondent of this fact well before the election petition was filed and quite a few months before the amendment was asked for
This belated conduct on the part of the contesting respondent speaks volumes against the credibility of the material particulars which appear to have been given by him through the amendment
The learned Judge in approaching the veracity of the witnesses produced by the contesting respondent on this point has attached great importance to those witnesses who have themselves produced the pamphlet Ext
A l and seems to be of the opinion that but for the evidence of such witnesses the evidence of other witnesses who gene rally spoke about the pamphlet having been given to them by the appellant should not be accepted
We are however of the opinion  that the approach made by the learned Judge on this aspect of the matter is not legally sound
The basic fact which had to be deter mined was whether the pamphlet was in existence before or during the elections because there was no dispute that the pamphlet was undoubtedly printed somewhere
If the test applied by the learned Judge was that the pamphlet should be produced by the witnesses to whom the same was given it would be very easy for the contesting respondent to hand over the pamphlet to the witnesses before they came to depose before the Court and ask them to produce the same in the Court
This sort of a computerised approach cannot be a safe criterion for determining the truth of the allegation that the pamphlet was actually distributed by the appellant to the witnesses concerned
Before going to the evidence we would like to discuss the law on the subject
Distribution of an objectionable pamphlet is undoubtedly a corrupt practice within the meaning of sub section
4 of section 123 of the Act which runs thus 4
The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate s election
 In fact on the allegations of the contesting respondent publication of the pamphlet containing communal propaganda would also attract sub section
3A of section 123 of the Act
The allegation of publishing an objectionable pamphlet is indeed very easy to make but very difficult to rebut
At the same time it puts the Court on the  strictest possible scrutiny because objectionable pamphlet can be printed by any body in any Press with utmost secrecy and if a corrupt practice can be sought to 472 be proved merely by publication of a pamphlet then it will amount to giving a free licence to any defeated candidate to get an objectionable pamphlet published and circulated to his supporters and to make them say that such pamphlet was printed or published or circulated by the successful candidate
In these circumstance therefore the Court frowns on the evidence regarding the publication of the pamphlet which s comes from tainted or interested sources
In Baburao Bagaji Karemore and others vs Govind  othersL this Court laid down certain tests to judge the evidence regarding the publication or distribution of objectionable pamphlet and observed as follows It appears to us that when an election of a successful candidate is challenged particularly on ground of corrupt practice it is not unknown that attempts are made to manufacture or bring into being subsequent to the declaration of the result documents or other material which could be used for unseating a successful candidate
At any rate when any impugned document is hotly contested on that ground and it is the case of the respondent that it was brought into existence subsequently the onus on the petitioner who challenges the election on that ground is all the more heavy
 In the instant case the appellant has emphatically denied the publication of the pamphlet of the nature of Ext
A l or the distribution of the same to any body
Thus both the publication of the pamphlet and distribution thereof appears to be hotly contested by the appellant in this case
In these circumstances therefore it was the bounden duty of the contesting respondent on whom lay the initial onus to prove that the pamphlet was published and distributed by the appellant
There is absolutely no direct evidence to prove that the pamphlet concerned was in fact published printed or caused to be published or printed through any agency of the appellant
On the other
hand there is evidence to show that the contesting respondent has a press of his own and the possibility that he might himself have got the pamphlet printed with a view to set at naught the election of the appellant cannot be reasonably excluded
The High Court seems to think that as the pamphlet contained communal propaganda and incited the Hindus against the Muslims the same could not be printed by the contesting respondent who was a Muslim himself
This argument fails to consider that if an unsuccessful candidate whatever be his caste or creed files an election petition with the avowed object of unseating the successful candidate he generally stoops to all devices in order to show that the successful candidate was guilty of such corrupt practices which may lead the Court to unseat him
If an unsuccessful candidate is motivated by this consideration the religion or caste to which he belongs is wholly irrelevant for the purpose which is sought to be achieved
We do not mean to suggest for a moment that the pamphlet in question was in fact printed or published by the contesting respondent but if the contesting respondent wanted to print such a pamphlet there as nothing to stop him from doing that since he had a press of his own and as he was the owner of the press the matter 11947 3 CC 719
473 could have been kept absolutely secret
On the other hand there is no evidence to show that the appellant owned any press at all
The dominant fact in such a case which had to be proved was whether the pamphlet had come into existence either before or during the elections
Unless we believe the evidence of the witnesses produced by the contesting respondent  on this point in toto it will be difficult to hold that the pamphlet was published or distributed by the appellant
the appellant has produced respectable witnesses to show that if such an objectionable pamphlet as Ext
A l had been published and circulated the witnesses would have know about it
In other words the appellant sought to prove the negative aspect of the existence of the pamphlet and that is all that he could have done
The learned Judge appears to have brushed aside the evidence of these witnesses merely on the ground that their evidence does not exclude the possibility of there being a pamphlet like Ext
A l which was not brought to their notice
Indeed if this artificial approach is made to the evidence of such a nature then it would be asking the successful candidate to prove the impossible
We shall however advert to this aspect of the matter when we deal with the evidence produced by the appellant on this point
With this preface we shall now proceed to consider the evidence produced by the contesting respondent in proof of issue No 26
By virtue of the application for amendment filed by the contesting respondent and allowed by the Court a schedule has been annexed giving the names of the villages and the dates of distribution of the pamphlet which mentions as many as 26 villages but at the trial the contesting respondent had adduced evidence only to show that the pamphlet was distributed by the appellant to various persons on various dates at four places namely Gooty Yadiki Gundala and Guntakal
There were some other villages mentioned where the workers of the appellant are alleged to have distributed the pamphlet but that has to be ignored in view of our finding on issue No 27
The evidence adduced by the parties on this question may be reduced in the form of the following chart
In this chart the witnesses examined by the petitionercontesting respondent are for short referred to as PWs and the witnesses examined by the appellant as RWs
Name of Village Date Persons to whom Evidence of witnesses pamphlet distributed Gooty 27 2 72 PWs 2122 BY p
Ws 21  22 RWs2141522 and 24
Yadiki 28 2 72 PWs272835 By PWs 272835 37 and 40 37  40 RWs 11 12 1316 17  32 Gundala 5 3 72 PWs 1 2 3 4 By PWs 1 4  8 and 8
RWs 1  32 Guntakal 22 2 72 PWs 24 25 By PWs 24 25 33  36 33  36 RWs 3 5 78910 25 27 28  30 474 Before taking up the evidence of the parties led on the allegations regarding the distribution of pamphlet by the appellant personally it may be necessary to set out a few important principles in the light of which the evidence has to be appreciated
In the first place it may be necessary to extract the relevant portions of the pamphlet itself to show the offensive and objectionable nature of the same with a view to find out whether a person like the appellant could go to the extent of publishing such a clumsy pamphlet which runs thus Everywhere Muslims are given importance by the congress and the Congress is ruining the future of Hindus
In every election Muslims always vote for a Muslim candidate
When that is the case what is there wrong if all Hindus vote for me who is a Hindu candidate  Muslims have committed many atrocities and still the Congress is giving importance to the Muslims
For example Mr Baraktullah Khan is made Chief Minister in Rajasthan and Mr Mohd Ismail who is not well known in Andhra Pradesh is made the President of the Congress in the State
   In Hyderabad Muslims are given too much importance
The said Ismail in order to give representation and importance to his Muslim religion has given in our State nearly 20 seats to Muslims
This is an act of are to the Hindus
Is it not atrocities of Pakistan horrible incidents of Bangladesh murders of Navakhali an insult to the Hindu race and religion for ever  A perusal of the recitals of the pamphlet would clearly reveal the fact that it is couched in a most offensive language which is bound not only to hurt and injure the sentiments of the Muslims of the constituency but has also the effect of inciting one community towards another on purely communal grounds
The allegations made in the pamphlet are sufficient to alienate not only the sympathy of the Muslim community completely but also of a large number of Hindus who have a secular outlook which is the very fundamental feature of our Constitutional set up
In the first place the evidence led by both the parties clearly disclosed that there was a considerable section of Muslim population whose votes could not have been ignored or over looked by any candidate who really wanted to succeed
The first premise to start with therefore is whether the appellant could have taken the risk of offending the entire Muslim community and a sizable section of the Hindus also by publishing and circulating the pamphlet in question
Secondly the language of the pamphlet is so strong and conspicuous that it is difficult to believe that the Government officers who were posted on duty in order to prevent any communal propaganda by the candidates would have missed or failed to notice the pamphlet Ext
A l if in fact it was published and widely circulated in many villages
Thirdly we must not forget that the appellant had been declared elected and by succeeding in the election there was a strong and compelling motive on the part of the unsuccessful candidate to reverse the election of the appellant by any possible means
475 Finally if the pamphlet like Ext
A 1 was really distributed and circulated and the contesting respondent had come to know about the same it is not at all probable to believe that he would have failed to give the names of the persons from whom he got the knowledge of The pamphlet in the material particulars which he has set out in support of his allegations in paragraph 39 of the election petition
It is against the background of these admitted facts that we now come to the evidence led by the parties
So far as the village Gooty is concerned the contesting respondent has examined only two witnesses to prove that the pamphlet Ext
A l was distributed by the appellant personally
These two witnesses are PWs
2122
The evidence of PW 21 need not detain us because the learned Judge has disbelieved the evidence of this witness and has observed as follows In my opinion the evidence of Kulleyappa PW 21 is not trustworthy
I do not therefore consider it proper to rely upon the evidence of this witness
I accordingly reject it
 After having gone through the evidence of this witness we find ourselves in complete agreement with the opinion of the learned Judge as disclosed above
The only other witness who remains is PW 2  who as we have already pointed out while dealing with the allegation of bribery is the most interested witness and a staunch supporter of the contesting respondent
Even the learned Judge has commented adversely on the interested nature of the evidence of this witness as indicated by us in our judgment while dealing with issue No 7
It would appear that PW 22 was not only a supporter of the Congress and of the contesting respondent but was also employed by Sultan in the BSS
He acted as the counting argent of Sultan and was a partner in a firm which was the sole agent on Brim Stone Rubber Products a company belonging to Sultan
The learned Judge while dealing with the evidence of this witness even on this point has clearly observed that he was prepared to fill in all the missing links in the case put forward by the contesting respondent
In this connection the learned Judge observed as follows This witness has no doubt tried to plug in the loop holes or come to the aid of the petitioner Sultan whenever there was none to offer the missing links in the evidence adduced on behalf e petitioner
Y Ramachandraiah was also a business partner and an employee of the BSS Bharat Sevak Samaj
Those facts in my opinion show that he is an interested witness
 Having made these comments the learned Judge has still accepted the evidenceof this witness
This would have been sufficient to dislodge the evidence of this witness completely
But even on its intrinsic merits the evidence of this witness does not inspire confidence
To begin with the witness admits that the appellant had come to his house at 8 AM
On Sunday February 27 1972 and requested him to help the appellant
In the first place it is difficult to believe that the 476 appellant would of all persons try to enlist the help of PW 22 knowing fully well that he was an old friend and a staunch supporter and a close and intimate friend of the contesting respondent
PW 22 narrates a most interesting and incredible story
According to him when the appellant went to him and asked for his support the witness refused and despite his refusal the appellant was foolish enough to give him the pamphlet Ext
A l although the witness told him clearly that he was supporting the Congress and that he was an important person of Gooty and therefore it was not good for him to ask for the witness s support
Thereafter the appellant is said to have made a communal appeal to the witness more or less on the same lines as mentioned in the pamphlet
Thereafter the witness gave a sermon to r the appellant and advised him not to seek votes on the basis of religion and caste
Even after all this happened the appellant is said to have given the pamphlet to the witness
This story appears to us to be wholly improbable and against normal human conduct
Thus in these circumstances the appellant would not have handed over the best evidence against him to his enemies namely the pamphlet knowing fully well that he was a staunch supporter of the contesting respondent
Lastly the witness states thus On that evening I went to Guntakal met Sultan and  narrated to him what all had transpired between Venkatareddy and myself
I also showed to Sultan the pamphlet that was given to me by Venkatareddy
I read the pamphlet carefully and I gave that pamphlet to Sultan
 Indeed if what witness stated was true and the contesting respondent  was apprised of the entire story on the evening of February 27 1972 ie about two months before the election petition was filed would he have failed to mention the name of PW 22 and the story revealed by him in the allegations made in paragraph 39 of the petition regarding the distribution of the pamphlet  Even if he had failed to do that would the contesting respondent not gave at least mentioned the name of the witness as also the details narrated by him in the material particulars in support of the allegations in paragraph 39 which were inserted by virtue of the application for amendment  All these facts are completely absent from the averments made in paragraph 39 either before or after the amendment
All this shows that the witness has deposed to a cock and bull story which cannot be believed for a moment
For these reasons therefore we are not at all impressed with the evidence PW 22  and we reject the same
PW 21 having been disbelieved by the Court below and PW 22 by us there is absolutely no evidence left to prove the allegation that the pamphlet Ext
A l was distributed by the appellant personally in the village Gooty
Thus the contesting respondent initially failed to discharge the onus which lay on him to prove the distribution of the pamphlet by the appellant to PWs 21 and 22
In the above view of the matter it may not have been necessary to deal with the evidence led by the appellant which is more or less of a negative character
Nevertheless we would only refer to the evidence r of four respectable witnesses who have been examined by the appellant which throws a flood of light on the question
477 RW 2 was a sub Inspector of Police at Gooty and states that he had accompanied the procession taken out by the appellant
The categorically states that no pamphlet like Ext
A l was distributed
The witness had made arrangements for the procession and it is obvious that if any pamphlet like Ext
A l had been distributed the same would have come to his notice
The witness further deposes that many pamphlets were distributed by various contesting candidates and all the pamphlets coming to his notice were sent to the Superintendent of police
The learned Judge has commented on the fact that the witness did not keep an account of the pamphlets distributed nor were the same called for from the office of the Superintendent of Police to whom they were forwarded
When the witness has categorically stated that no pamphlet like Ext
A l ever came to his notice though he would have come to know of the same because he was making all the arrangements in the procession and was in charge of the election duty that fact itself lends indirect sup port to the case of the appellant that no such pamphlet was ever distributed
We do not mean to suggest that the evidence of this witness is conclusive but it is an important circumstantial evidence to support the case of the appellant particularly when the contesting respondent has not adduced satisfactory evidence to prove his plea
RW 15 is a certified clerk of Shri Kona Venkata Reddy Advocate of Gooty and was a worker of the appellant
This witness states that a procession was taken out at Gooty in which the appellant had merely r asked the public to vote for the Cycle symbol and that the witness along with others had taken part in the procession
The witness denied that any pamphlet like Ext
A 1 was distributed to any body in the procession
He has been subjected to a searching cross examination but nothing of much importance has been elicited
It is true that the witness has denied the knowledge of other pamphlets like A 70 to A 78 but that by itself is not sufficient to throw out his evidence
The next witness is RW 22 who is an Advocate practising at Gooty since 1921
He appears to be a respectable witness and does not bear any animus against the contesting respondent
He has however frankly admitted that he was working for the appellant and had participated in the procession which was taken out at Gooty
The witness categorically states that the pamphlet like Ext
A l was not distributed either during the procession or later on or at any time
Although the witness was no doubt a support of the appellant but being an Advocate he is a respected have must the strong reason to reject his evidence
In cross examination nothing much of importance has been elieited
The denied the suggestion that he was in any way related to the appellant
The last witness on this point is RW 24 who was a Special Branch Headconstable with headquarters at Gooty
According to him Gooty Police Circle was within his jurisdiction
The witness has categorically stated that his duty was to cover political activities agitations movements and secret enquiries
The witness further emphasised the fact that it was his duty to collect any pamphlets which related to political matters or contained objectionable language and pass on the same to his superior officers
The witness was shown Ext
A l and he has categorically stated that no such pamphlet ever came to his notice either 16 L522 SCI76 478 during the election or afterwards nor did any pamphlet distributed in Gooty by any candidate come to his notice
This witness is undoubtedly an independent one and was not at all interested in any particular candidate
The only comment against this witness was that he has not produced the daily reports about the existence of the pamphlet
It is obvious that if no such pamphlet came to his notice there was no occasion for mentioning the same in his report
The other comment made    by the learned Judge was that although he had forwarded the pamphlets to his superior officers no attempt was made by the appellant to call for the record from the superior officers
That fact would not by itself falsify the evidence of this witness
We have already observed that the or language of the pamphlet was so offensive and hurting that if such a pamphlet would have been in circulation it would be impossible to be lieve that an officer like RW 24 who was deputed expressly for the purpose of finding out such pamphlets would not have been able to notice the same or would have missed the pamphlet if the same was 3 distributed in Gooty
This circumstance therefore lends support to the case of the appellant that no such pamphlet was ever distributed by the appellant in Gooty and reinforces the case of the appellant particularly when we have seen that the two witnesses examined by the con testing respondent in support of his case have been disbelieved as unworthy of credence
This brings us to the other limb of the corrupt practice alleged by the contesting respondent regarding distribution of the pamphlet by the appellant in village Yadiki
The evidence led by the contesting respondent is a composite one consisting of the witnesses who speak not only about distribution of the pamphlet by the appellant alone but also by his workers
We have already indicated above that due to want of proper pleadings the allegation about the pamphlet having been distributed by the appellant through is workers agents supporters and friends has to be completely excluded from consideration
In these circumstances we would only confine our assessment to that part of the evidence led by the parties which relates to the question af distribution of the pamphlet bythe appellant personally
r The contesting respondent has examined PWs 27 28 35 and 37 to prove 1 that a procession was taken out by the appellant in Yadiki on February 28 1972 and 2 that the appellant personally distributed the pamphlet to various persons in the course of the procession
So far as the appellant is concerned he has denied that he ever took out any procession in Yadiki on February 28 1972
It was further narrated that February 28 1972 being Monday was a Shandy Day on which the village market fair was held and it was therefore not possible to take out a procession on that day
appellant s further case was that he had merely gone from house to house in the village in order to solicit votes for him
This is undoubtedly permissible under the election law
In view of the unsatisfactory nature of the evidence led by the contesting respondent on this point it is not necessary for us to enter into an arena of controversy regarding the question whether or not the appellant to ok out a procession
Assuming that he did the sole question is whether the appellant personally distributed any pamphlet to any body at Yadiki on February 
479 28 1972 as alleged by the contesting respondent
The evidence of A PWs
27  28 is almost identical because both of them alleged to be paid workers of the appellant had participated in the procession and saw the appellant distributing the pamphlet
The appellant however seriously disputed the fact that these witnesses had ever been hired or engaged by him for doing his election work
On the question of the issue relating to the expenses incurred by the appellant the learned Judge clearly found that it was not proved that PWs
27  28 had been appointed by the appellant
Even while considering the evidence of these two witnesses on this point the learned Judge observed thus Since there were discrepancies in the matter of talking cf the terms and the place where they were talked over and the person before whom such terms were talked over I held that it was unsafe to include the salaries of those persons in the return of election expenses filed by Venkatareddy ie Ext
Though PW 27 and PW 28 did not prove that they were appointed by the 1st respondent D Vankatareddy for the purposes of writing on the walls of various villages on behalf of respondent No 1
 The learned Judge however chose to act on the evidence of these witnesses because according to him PWs
35  37 had corroborated the evidence of these witnesses
We will deal with the evidence of P Ws 35  37 a little later but the fact remains that as the appellant has emphatically denied having ever appointed these witnesses as his workers and the Judge having himself held that this fact was not proved it was not open to the learned Judge to have still speculated that they might have been the workers of the appellant
Thus there can be only two possibilities either these two witnesses were not employed by the appellant at all in which case there would be absolutely no occasion for their presence in the procession which according to them was only in their capacity of being workers of the appellant
If this is so then the entire evidence of these witnesses falls to the ground
Assuming however that they worked for the appellant then their evidence appears to be of a turn coat type which is interested and tained and cannot be acted upon without corroboration
While commenting upon the credibility of a turn coat witness this Court in Rahim Khan vs Khurshil Ahmed and others1 observed as follows r But more curious is the turn coat type of witnesses who claimed to be and often were the polling agents or workers of the appellant ti11 the election was over but in the post election period when the Respondent No l s party had formed a Government quietly shifted their loyalty and gave evidence in proof of the averments in the petition
it is conceivable that these persons who had collaborated with the appellant in the malpractices alleged were possessed of the urge to unburden their bosoms of the truth of their own evil doing and hurried into the witness box to swear veraciously to what took place actually
But the 1 1974 2 SCS 660 480 more probable explanation would be that these swivel chair witnesses with India rubber consciences came under the influence of Respondent No 1 for invisible consideration and spoke dubiously in support of their present patron
 Moreover it seems to us that even on its intrinsic merits the evidence of these two witnesses does not inspire confidence
They have only in a general way stated that they had participated in the procession and that the pamphlet Ext
A l was distributed by the appellant and a number of other persons
They did not give any details as to whom the pamphlets were distributed and at what place
So far as PW 27 is concerned he admits that he is an illiterate person and identifies the pamphlet only by colour and by alphabets
This is however a very unconvincing identification and it is not safe to act on the same P W 27 further admits that 8 or 10 days after the election Sultan had come over to the house of Radhakrishna who had sent for both the PWs 27  28 and they were asked to give evidence regarding the work they had done for the appellant
The witness further stated that he accepted the offer and wrote down something on the paper He also admits that Radhakrishna had helped Sultan the contesting respondent in the elections
It is therefore clear that both PWs
27  28 were procured by PW 35 Radhakrishna who was a supporter of the contesting respondent in the election
The witness PW 27 had voluntarily worked for the appellant and appears to have readily accepted the offer of the contesting respondent to depose for him against the appellant without having any sense of decorum or decency and appears to have transferred his loyalty to the contesting respondent
In these circumstances the evidence of PW 27 is not worthy of credence
The evidence of P 28 also suffers from the same infirmity as that of PW 27
Apart from that the evidence of PW 28 does not appear to be reliable because he admits that he was brought to Hyderabad fol  giving evidence and stayed there for 10 days
He further admits that Sultan the contesting respondent was meeting his expenses
In these circumstances therefore it is clear that the witness was fully tutored and then brought to give evidence for the contesting respondent
In these circumstances we do not choose to place any reliance on the evidence of PWs 27  28
The next witness on the point is PW 35 who is undoubtedly an interested witness inasmuch he is a supporter of Sultan who had worked for him in the election and was also his polling and counting agent
This witness states that a procession was taken out by the appellant at Yadiki on February 28 1972 which was headed by drummers followed by a band set
He says in a general manner that the appellant and his workers were distributing the pamphlets
He identifies Ext
A l as a pamphlet given to him
But in cross examination at P 561 of the Paper Book Vol
III he clearly admits that the pamphlet was given to him by a worker of the appellant Venkata
Reddy and not by Venkata Reddy himself
As the evidence regarding distribution of the pamphlet by the workers has to be excluded from consideration his evidence clearly shows that the appellant himself did not give any pamphlet to him
Thus his evidence does not appear to be of any assistance to the contesting respondent and we fail to understand how the learned Judge has read the 481 statement of this witness as corroborating the evidences of PWs
27 1 and 28 which is the sole ground on which the evidence of this witness has been accepted by the learned Judge
It seems to us that the learned Judge has completely overlooked the important admission made by PW 35 in his evidence which shatters the case of the contesting respondent regarding distribution of the pamphlet by the i appellant to this witness
The last witness on the point is PW 37
He is also an interested witness and bears an animus against the appellant inasmuch 
as he is said to have filed a complaint against the appellant who is alleged to have beaten him during the election
It appears that the police did not register any case on the basis of his complaint and according to the witness the matter is still pending in revision
The witness further deposes that he knew the appellant since about 20 to 25 years although he gives his age as only 28 years
This demonstrates the utter falsity of his statement
He further admits that he was working for Sultan and that the appellant Venkata Reddy saw him working for Sultan even prior to the date when the procession was taken out at Yadiki
According to the witness the pamphlet was given to him by the appellant
It is difficult to believe that the appellant after having known that the witness was working for Sultan would have given such an offensive pamphlet to him and create adverse evidence against him
Lastly the witness admits at pp
577 578 of the Paper Book Vol
III that five or six days after the procession was taken out by the appellant Sultan had come to Yadiki and he had told Sultan about the incident
Thus according to the witness Sultan came to know about the distribution of the pamphlet Ext
A l to the witness near about the end of February and yet it is astounding that he did not make any mention of this fact either in paragraph 39 of his petition or even in the material particulars which he gave by virtue of the amendment
We have already indicated that the evidence discloses that Sultan was informed long before he filed the election petition that the pamphlet was distributed by the appellant to the named persons who were known to the appellant and yet this fact was not mentioned in the particulars given by the contesting respondent
This conduct clearly shows that the entire story is purely a figment of imagination of the contesting
respondent and his sup porters and has been bolstered upto unseat the appellant
For these reasons therefore we are not in a position to place implicit reliance on the testimony of this witness also
It would thus appear that even in Yadiki the contesting respondent could not get hold of any independent witness to prove the distribution of the pamphlet by the appellant
According to the PWs
Yadiki is a big village and if a procession was taken out by the appellant there must have been a r large number of persons present in the procession and it is impossible to believe that the appellant could not get hold of a single person who was in any way unconnected with him to prove that the pamphlet like Ext
A l was distributed to any such person
Both on the charge of the offer of bribe as also on the charge of distribution of objectionable pamphlet the contesting respondent has chosen to examine only those witnesses who are in some way or the other totally interested in the contesting respondent or connected with him
Thus the evidence of the witnesses referred to above does not satis 482 factorily prive that the appellant had distributed the pamphlet Ext
A l to any body in Yadiki on February 28 1972 as alleged by the contesting respondent
The contesting respondent has therefore failed to prove this part of his case
In view of this finding it is not necessary to go to the evidence produced by the appellant
Never theless R Ws 11 16 and 17 have deposed on oath that no procession was taken out in Yadiki and that no pamphlet like Ext
A l was ever distributed by the appellant
Even if we ignore the evidence of these witnesses as the contesting respondent has not proved his allegation c on this part of the case he must fail
We will now deal with the allegation of the contesting respondent regarding distribution of the pamphlet by the appellant in village Gundala on March 5 1972
On this point the contesting respondent relies on the evidence of PWs 1 2 3 4 and 7
Here also the evidence of these witnesses is a composite one seeking to prove the distribution of the pamphlet not only by the appellant but also by his workers and we have got to ignore that part of the evidence which relates to the distribution of the pamphlet by the workers of the appellant
To begin with the evidence of PWs 1 and 3 has been disbelieved by the learned Judge having regard to other items regarding payment of the bribe by the appellant to these witnesses and the Judge has held that they were in the nature of accomplices
In this connection the learned Judge has observed at pp
1319 1320 of the Paper Book Vol
VI as follows Since PWs 1 and 3 also say that they had actively helped Venkatareddy in the distribution of the offensive pamphlets and thus they helped the 1st respondent in committing a corrupt practice under section 1233 and Section 123 3 A of the Representation of the People Act even in regard to this corrupt practice PWs 1 and 3 can either be equated to accomplices or regarded as person who actively helped Venkatareddy in the commission of a corrupt practice
Their evidence even in this behalf requires corroboration in material particulars by independent testimony
 Indeed if this is the character and tenor of these witnesses it would be difficult to place any reliance on the evidence of these witnesses on any point
Further more according to the evidence of these two witnesses they had actively helped the appellant in the election and now they are coming forward against the appellant and in favour of the contesting respondent in order to unseat the appellant
Their evidence is also of a turn coat type and therefore tainted
In these circumstances no reliance can be placed on the evidence of such witnesses
However
even on merits they do not appear to be reliable witnesses
PWl states that he belongs to Gundala and then ten days prior to the polling the contesting respondent Sultan had contacted him in the village and asked him and others to cast their votes in his favour
The witness and others assured the contesting respondent that they had always been voting for the Congress and they will therefore vote for him
After the contesting respondent had left the village the appellant Venkata Reddy came 483 to the village in a jeep and he asked the witness and other persons A to vote for him
But the witness and other persons explained to the appellant that on earlier occasions all of them had voted for the Congress and so this time too they will do the same
Thereupon the appellant is said to have made an appeal on communal grounds saying that the Congress is always in the habit of giving tickets to the Muslims and not to Hindus and tried to wean them away from the Congress fold
There was thus an exchange of words between the witness and others and ultimately the appellant paid some money to the witness
This allegation has been disbelieved by the learned Judge
Therefore to start with the very genesis on the basis of which the witness has deposed disappears and there was no occasion for the appellant to have given any pamphlet to the witness
The witness proceeds to state that after the exchange of these talks the appellant gave the pamphlet to the witness and he took the pamphlets to village Ammenapalli and gave the pamphlets to the voters of that village
We are however not concerned here with the distribution of the pamphlets by the workers of the appellant
The witness identifies the pamphlet Ext
A l as the one having been given to him
According to the witness the appellant had gone to him ten days before the polling and the witness states thus at p 125 of the Paper Book Vol II D It was for the first time that I came to know Venkata Reddi on the day when he visited our village ie ten days prior to the polling date
 This would mean that the appellant had contacted the witness on or about February 20 1972
But the definite case made out by the contesting respondent in his petition is that so far as the village Gundala is concerned the pamphlet was distributed by the appellant on March 5 1972 ie Only four days before the polling
In these circumstances therefore the evidence of this witness is falsified by the particulars given by the contesting respondent in his petition and on this ground alone his evidence has to be rejected as being contrary to the pleadings
Further more it appears that the witness is a staunch supporter of the Congress and on his own showing he had been voting for the Congress in all the elections
The witness admits at p 134 of the Paper Book Vol II that in the previous election also the witness had worked for the Congress
In these circumstances therefore the evidence of this witness does not appear to be creditworthy
The next witness on the point is PW 2 who states that the con testing respondent Sultan had visited the locality and had asked him to vote for him
Thereafter the appellant came to his village and was accompanied by PW 1
The witness states that the appellant Venkata Reddy asked him to vote for the Swatantra Party
This knocks the bottom out of the evidence of this witness because it is nobody s case that the appellant was the candidate sponsored by the Swatantra Party and it is the admitted case that the appellant was an independent candidate
This also reveals the falsity of the story narrated by the witness
The witness then states that after having asked the witness to vote for the Swatantra Party the appellant gave 484 him a paper which contained the cycle symbol
On seeing Ext A l the witness identified it as the same paper which was given to him
The witness further admits that he is illiterate and it is therefore not understandable how he identified the pamphlet Ext
The witness did not show that paper to any body on that day and later on he showed it and got it read over to him and thereafter he decided to vote for the appellant as the Muslims were bad people
In fact in an unguarded moment he has said that he decided to vote for the Congress and then changed his statement as appears from the endorsement made by the Court
In cross examination the witness admits that ten days after the elections were over Sultan had come to his village and asked him why he did not vote for the Congress
There upon the witness told him that the appellant Venkata Reddy had distributed the pamphlet and asked him to vote for him
The witness further categorically states that he showed the pamphlet given to him by the appellant to Sultan and he was asked by Sultan to preserve 
the pamphlet so that it may be used in the Court as and when necessary
According to the witness this event took place only ten days after the election ie some time in the middle of March 1972 and well before the election petition was filed
Indeed if what the witness says was absolutely true then Sultan had come in possession of the most damaging evidence against the appellant long before the petition was filed and yet he did not choose to mention this fact either in his petition before amendment or after
Even the pamphlet was not produced along with the documents as being the pamphlet shown to him by the witness but the appellant rest contented by asking the witness to keep the pamphlet with him
It is not at all understand r able or intelligible as to why the pamphlet was not produced by the 
witness when he came to the witness box for his examination in chief and it was left only to the question to be put by the Court after lunch break when the pamphlet was produced
Could the contesting respondent having known those facts take the risk that if the Court did not ask any question then the pamphlet would not be produced by the witness at all All this therefore shows that the evidence of this witness is untrue and is a frame up in order to support the allegation made by the contesting respondent against the appellant
This brings us to the evidence of PW 3
The learned Judge has also seriously commented on the credibility of this witness so far as other allegations were concerned and therefore to begin with the evidence of this witness is tainted
Further more the evidence of 1 this witness is of a turn coat type because he is said to have worked for the appellant and after the election he deposed for the contesting respondent
PW 3 also gives almost a similar story as PW 1 regarding the communal appeal said to have been made by the appellant
He also states that the appellant paid him Rs 500 for working and helping him in the election
This allegation has been disbelieved by the learned Judge
Another factor which impairs the credit of this witness is his admission that at the time of the polling he was instrumental in getting the false votes cast
In this connection the witness states at p 149 of the Paper Book Vol II thus Boya Nagamma and Venkatappa were residents of my village
They were dead before the polling date
The 485 votes were cast in their names
Myself and PW 1 got the votes cast in their names
Votes were cast in the names of persons who were not present on the polling date
Myself and PW 1 got such votes cast in the names of the villagers who were absent from the village on the polling date
 It would thus appear that the witness was of such low morals and characterless as he went to the extent of getting votes cast in the names of persons who were already dead or who were not at all present at the polling booths
It is difficult to place any reliance on the evidence of a witness of such character
For these reasons therefore we are not in a position to place any faith this witness
According to PW 4 Sultan had come to his village in order to solicit votes in his favour and he was accompanied by PWs 1  3 and PW 22
In the presence of these witnesses Sultan asked the witness lo vote in favour of the Congress and he assured Sultan that all the villagers had decided to vote for the Congress
It would thus be seen that when Sultan had gone to the witness s residence PWs 1  3 who had been the workers of the appellant had accompanied the adversary of the appellant even at that time
Thereafter according to the witness when Venkata Reddy came to him and asked him to vote for him and here also the PWs 1  3 had accompanied the appellant
This shows the unreliable character of PWs
I  3
The witness again narrates the same story that the appellant made a communal appeal to the witness and asked him on ground of religion to vote for him
Thereafter the appellant give him the pamphlet
It might be mentioned here that no case has been set out by the contesting respondent either in his petition or in the particulars given by him that the appellant had made any oral appeal of a communal nature to any person either before or after distributing the pamphlet Ext
In these circumstances the evidence of PWs
t to 4 on the point that the appellant had made an oral appeal cannot be accepted as being contrary to the pleadings and thus the most integral part of the evidence of these witnesses falls to the ground
According to PW 4 the pamphlet was given by the appellant to the witness and thereafter he left
We find it very difficult to believe that if the appellant was really serious in getting the votes of these persons he would just hand over the pamphlet and go away without trying to explain the purpose and the contents of the pamphlet particularly when he knew that PW 5 and others had their inclination towards the Congress
In the first place if he knew that PW 4 and other villagers had their inclination towards the Congress and had decided to vote for the Congress he would not risk giving the pamphlets to such persons at all and even if he did it is difficult to believe that he will distribute the pamphlets in such a casual and cavalier manner
Finally PW 4 just like other witnesses also states that ten days after the elections were over Sultan had come to his village and he was informed by the witness about the distribution of the offensive pamphlet and the Oral appeal made on communal grounds made by the appellant and yet we do not find the name of any of these witnesses including PW 4 in the petition as being the persons lo whom the pamphlets were distributed
This appears to be a very substantial ground on which the evidence of these witnesses should 486 be rejected because it proved the intrinsic falsity of the evidence
There does not appear to be any earthly reason why after having been informed by PWs
l to 4 and others whose case has been discussed above the contesting respondent would not mention these facts in his election petition when the same came to his knowledge well before filing of his election petition
The learned Judge appears to have completely overlooked this aspect of the matter which introduces an intrinsic infirmity in the evidence of the witnesses
For these reasons we reject the evidence of PW 4
The last whitens on the point is PW 8
His evidence is almost identical with that of PW 4
According to the witness the contesting respondent Sultan came to the village ten days prior to the date of polling
That would be near about February 28 1972 and asked the witness to vote for the Congress
The witness assured the contesting respondent that he would vote for the Congress
Three days prior to the date of polling the appellant came to the village accompanied by PWs 1  3 and the witness informed him that they had decided to vote for the Congress
Thereupon the appellant again made a communal appeal to them gave him a pamphlet and walked away
Thus the evidence of this witness also suffers from the very same infirmities which we have pointed out in respect of PW 4
At p 231 of the Paper Book Vol II the witness contradicts himself and states that the appellant merely gave him a pamphlet and asked him to vote for him
He did not say anything more
Thus the story of an oral appeal is given a complete go by in the later part of his evidence
It is impossible to believe that the appellant would try to procure the vote of the witness knowing fully well that he had decided to vote for the Congress and quietly parted from the witness after giving him the most damaging evidence against him
For these reasons therefore we are not in a position to place any reliance on the evidence of PW 8
This is all the evidence that the contesting respondent has led in proof of the fact that the appellant had personally distributed the pamphlets in the village Gundala on March S 1972
After careful consideration of the evidence produced by the contesting respondent we are clearly of the opinion that the evidence is not worthy of credence and the contesting respondent has failed to prove by clear and cogent evidence that the pamphlets were distributed by the appellant personally to any person in Gundala or for that matter to P Ws 1 2 3 4 and 8
In view of our finding that the evidence led by the contesting respondent on this point is unsatisfactory it is not necessary for us to refer to the evidence given in rebuttal by the appellant which is necessarily of a negative nature
The last limb of the case comprises the alleged distribution of the pamphlet Ext
A l by the appellant
to persons in village Guntakal on February 22
PW 24 is Thirupathi Rao a registered medical practitioner Guntakal
To start with the witness admits that he worked for the Congress
The witness goes on to state that the appellant had come to his dispensary and had asked for his support but PW 24 told him that he belonged to the Congress and therefore he could not help others
Thereafter the appellant is said to have given him the pam 487 phlet Ext
A l and the witness pointed out that the pamphlet was very offensive
Thereupon the appellant is said to have made some sort of a communal appeal to the witness and having left the pamphlet with him walked away
The witness has categorically stated that after the oral communal appeal was made by the appellant the witness told him that he saw no difference of religion caste creed and that he could not support him
It is impossible to believe that the appellant knowing full well that the witness was an educated person and a Doctor practising at Guntakal and not a mere illiterate voter would make any communal appeal to him much less when he was told in plain terms by the witness that he was a Congress worker
In these circumstances would the appellant still have given the pamphlet to this witness and created an unimpeachable evidence against him
There is no doubt that the witness is not an independent witness but is an interested one because not only he Cr was a Congress worker but also acted as a counting agent for Sultan as he admitted in his evidence
Further more the oral appeal said to have been made by the appellant is not at all mentioned in the election petition
Apart from being a Congress worker he held an important position in the Congress party being the Vice President of the Town Congress Committee right from 1967
The witness further admitted that being the Vice President of the Town Congress Committee he was an important member of the Congress party at Guntakal
The witness further states that when Sultan came to Guntakal he showed the pamphlet to him and this happened even before the date of the polling
In fact he showed the pamphlet to Sultan five or six days before the date of the polling
It surpasses our imagination that if an important congressman like PW 24 would have informed Sultan four or five days before the polling that an offensive pamphlet like Ext
A l was given to him by the appellant the contesting respondent would take it lying down and would refrain from taking any action in the matter
We have already pointed out that Sultan was not of a quiet type of men but had made several complaints to the police officers and it is impossible to believe that if he had known from such an important source like PW 24 that an offensive pamphlet was being distributed during the election he would have taken no action against the appellant by moving the authorities concern ed or in informing the police and the congress circles
Far from it he did not even mention this fact either in his election petition or in the particulars which he gave thereafter
We fail to understand how the contesting respondent could have failed to mention such an important incident in his pleadings at any stage
This clearly shows that the evidence bf PW 24 is not correct
The appellant who appears to be a responsible man would not have been so foolish as to have left in the hands of PW 24 the pamphlet in question knowing full well his strong views in the matter
The witness further admitted that he was deposing to this point for the first time in the Court and he had not told this fact to any one else
How can we believe that PW 24 holding such an important post in the Congress organisation would have failed to draw the attention of the authorities in the Congress Party regarding the distribution of an offensive pamphlet by the appellant which may have seriously impaired the election prospects of the candidate of the Congress
For these reasons therefore we are not in a position to place any reliance on the evidence of this witness
488 The next witness is PW 25
This witness admits that he voted for the Congress candidate Sultan and supported his candidature during the election
According to him fifteen days prior to the date of polling he along with Sultan and others were moving in the ward canvassing for votes in favour of Sultan
Eight days prior to the date of polling which would mean near about the
1st March the appellant Vankata Reddy along with others came to the house of the witness in a jeep and Ram chandra Gaud who was supporter of the appellant told the witness to  help Vellkata Reddy
The witness however explained to them that he had always been supporting the Congress and stood committed to Sultan and therefore he could not support the appellant
Thereafter Ramchandra Gaud threatened the witness that he would destroy the partner ship business in which he was a partner if he did not help the appellant
In view of the threat given by Ramchandra Gaud the witness decided to work for the appellant
Thereafter the appellant gave a bundle of pamphlets containing the cycle symbol to be distributed to various persons
That is how according to the witness the pamphlet came in his pos session
In order to prove that he was a worker of the appellant he produce Ext
A 40 which is a polling agent form assigned by the appellant
To begin with this witness also appears to be of a turn coat type and his evidence is tainted and cannot be accepted without any corroboration
It is difficult to believe the story that it was because of duress that he agreed to work for the appellant because if that was so then the partnership which is still continuing while the threat remains the k witness would not have dared to depose against the appellant in order to help Sultan and yet he has done it
The witness has clearly admitted that the partnership is still continuing and therefore the danger with which the witness was faced and which made him work for the appellant still continues and it is not understandable how the witness could suddenly change colours
Further more the witness admits at p 474 of the Paper Book Vol
III that the appellant had given the pamphlet to the witness eight days prior to the date of polling which would mean near about February 28 or March 1 1972 but according to the material particulars given by the contesting respondent in the election petition as amended the date of distribution of the pamphlet at Guntakal is mentioned as February 22 1972
Thus the evidence of this witness being contrary to the pleadings must be disregarded
In these circumstances therefore we are not in a position to place any reliance on the evidence of this type
This bring us to the evidence of PW 33
We have fully discussed the evidence of this witness on issue No 7 on the allegation of bribery and have disbelieved him
We have also pointed out that PW 33 was a staunch supporter of the contesting respondent and appears to be an omnibus witness so as to support the contesting respondent on all points and supply the missing links
The witness states that PW 18 and Venkata Reddy the appellant went from house to house in the ward soliciting votes
Both these persons came to the house of the witness while he was standing in front of his house
Both of them distributed pamphlets and went away
The witness being a staunch supporter of the con testing respondent it is most unlikely that the appellant would distribute the pamphlet of all persons to him
Further more the witness only deposed in a very general manner that both PW 18 and the appellant 489 gave the pamphlet to him
The witness admits that he had read the pamphlet and yet he states that he did not complain to the police that the pamphlet may lead to communal trouble particulary when the pamphlet was distributed according to the witnes about fourteen or fifteen days prior to the date of polling
The witness further admits that four or five days prior to the date of polling Sultan had come to Guntakal and the witness had informed him about the pamphlet and yet Sultan also did not mention this fact in the material particulars given in his election petition after the amendment
For these reasons therefore we are satisfied that this witness has merely tried to oblige the contesting respondent being his intimate friend and staunch supporter
The last witness on this point is PW 36 Abdul Jabbar
Having regard to the offensive contents of the pamphlet Ext
A l it is impossible to believe that the appellant even as a person of ordinary prudence would have distributed the pamphlet to a Muslim and a person who had also worked for Sultan
By distributing such a pamphlet to a Muslim he would not only hurt the feelings of such a Muslim but would alienate the entire sympathy of the Muslim community
Only a mad person can do a thing like that or take such a suicidal step
According to this witness the appellant had come to Guntakal where the witness stayed gave him the pamphlet and went away
Thus the very short and summary manner in which the appellant handed over the pamphlet and went away clearly shows that the story of the distribution of the pamphlet by the appellant is a complete myth
According to the witness he was i11iterate and he  showed the pamphlet to PW 24 Thirupati Rao who read it out to him
PW 24 does not say that PW 36 Abdul Jabbar had come to him with the pamphlet or that he had read out its contents and explained the same to the witness
It was suggested by Mr Shiv Shankar for the contesting respondent that it is possible that the appellant may not have known that the witness was a Muslim
We are however unable to accept this contention because according to the witness he was an Ayurvedic Medical Practitioner and an important person in Guntakal
It is also difficult to believe that the appellant would distribute pamphlets indiscriminately without trying to find out whether the persons to whom the pamphlets were given were Muslims or not
PW 36 is also a staunch supporter of the contesting respondent
Thus the evidence of this witness does not appear to be worthy of credence
Thus on a consideration of the evidence of the witnesses mentioned above we are satisfied contesting respondent has not proved that any pamphlet was distributed by the appellant personally to PWs 24 25 33  36 in Guntakal or to any other person for that matter
In view of our finding that the contesting respondent has failed to prove this part of the case it is not necessary to refer to the evidence led by the appellant which is of a negative character
Reference may be made to the evidence of RW 28 who is a Labour Leader and whose evidence shows that no such pamphlet was ever distributed by the appellant
The witness states that he is a senior stenographer attached to the DMO Southern Railway and is also the Assistant General Secretary of one of the Unions of the Railway employees at Guntakal
The witness on being shown the pamphlet Ext
A l emphatically denied that any such pamphlet was given to him or was distributed by or on behalf of the appel 490 lant in the whole of the railway colony which consists of as many as 6000 to 8000 voters
Indeed if the appellant had distributed the pamphlets with a view to secure votes on communal grounds he would not have missed to distribute the pamphlets to the voters in the Railway colony and if this was done the witness would have undoubtedly come to know about it
This is undoubtedly an intrinsic circumstance which supports the case of the appellant that no pamphlet of the type of Ext
A 1 was ever distributed in GuntakaI Apart from this we may overemphasize even at the risk of repetition that there are two important infirmities appearing in the evidence led by the contesting respondent on the charge of distributing the pamphlet Ext
A l at various places which are sufficient to prove the falsity of the charge
In the first place the evidence of P Ws
I to 4 8 22 24 33 and other witnesses discussed above clearly discloses that the contesting respondent had come to know not only during the election but even a few days before polling that such a pamphlet like Ext
A l was in existence and was also shown to the contesting respondent by the witnesses mentioned above and he was also plainly told that this pamphlet was distributed by the appellant personally
In spite of this neither the contesting respondent mentioned these facts in his petition giving the full details nor in the material particulars nor did he take any action against the appellant by reporting the matter about the pamphlet to the authorities concerned
He did not disclose this fact even to his own Congress organization although this was a matter which on his own showing ruined his election prospects and in all probability the Congress should have been informed about this fact
Mr Shiv Shankar appearing for the contesting respondent realized the weight of this circumstance which went to falsify the case of the contesting respondent and submitted that the inaction on the part of Sultan was due to the fact that he was advised by his lawyers not to take any action in the matter
Sultan as no doubt deposed to this effect in his evidence
Indeed if this was a fact then we should have expected that the contesting respondent should have given this explanation in his election petition or should have examined the lawyer who had given him such an advice
Secondly even if this explanation be accepted there does not appear to be any reason why the contesting respondent should not have mentioned the names of the persons who had told him that an offensive pamphlet had been distributed to them by the appellant in his petition or in the material particulars when Sultan was definitely informed of those facts
These two infirmities apart from other defects are sufficient to dislodge the case of the contesting respondent on issue No 26 and lead us to the inevitable inference that these facts were not true and were clearly an after thought and had been introduced for the first time in the evidence through the aid and support of purely partisan witnesses
Lastly it was also urged by Mr Shiv Shankar learned counsel for the contesting respondent that the evidence of P W 11 clearly shows that the pamphlet in question was in existence during the election
The learned Judge has disbelieved the evidence of this witness as being based on hearsay
The witness alleges to have received the pamphlet from his wife who was not examined as a witness
Thus the very 491 source from which he is said to have got the pamphlet disappears and that being an integral part of his evidence we find it extremely unsafe to rely on the evidence of this witness and fully agree with the reasons given by the learned Judge for disbelieving this witness
Mr Shiv Shankar learned counsel for the contesting respondent submitted that the evidence shows that pamphlets like Exts
A 70 to A 78 were undoubtedly printed by the contesting respondent and they contain the name of the Printing Press
He argued that if the contesting respondent would have printed the pamphlet Ext
A l then he would have mentioned the name of the Press
We cannot accept this argument because the pamphlet is so offensive in nature that any person who printed the same would never try to disclose publicly the name of the Press lest action in law may be taken against the Press
It was then contended that the contesting respondent being a Muslim is not likely to say such offensive and communal things against his own community
This is also a matter of pure speculation
Various persons react to different circumstances in different ways and if a person is motivated or animated by a particular purpose he can go to any length to achieve his end
Therefore the mere fact that the contesting respondent belonged to the Muslim community cannot by itself exclude the possibility of his having circulated the pamphlet Ext
A l and printing it so as to use it as a powerful instrument against the appellant by putting the blame on him
The contesting respondent undoubtedly owns a Press and if he wanted to do such a thing there was nothing to prevent him from achieving his object
These are speculative matters and in the view we take of the evidence led by the parties in this case it is not necessary for us to give a clear finding
as to who printed the pamphlet in question
All that is necessary to be determined in view of the pleadings of the parties was whether the pamphlet in question was printed by the appellant or distributed by him personally
The contesting respondent has not adduced any satisfactory evidence on this point whereas the appellant has through his evidence which is of a negative character shown that the probabilities were that the appellant had not distributed this pamphlet Ext
On a careful consideration of the entire evidence and circumstances of the case whether we apply the standard of proof by virtue of the benefit of doubt or that of preponderence of probabilities the conclusion is inescapable that the contesting respondent has failed to prove his allegations regarding the payment of bribe contained in issue No 7 and the distribution of the pamphlet by the appellant personally comprised in issue No 26
The learned Judge in accepting the case of the contesting respondent overlooked certain fundamental features inherent improbabilities intrinsic infirmities the weak and interested nature of the evidence and other facts which we have fully elaborated in our judgment
We therefore hold that the appellant Venkata Reddy was not guilty of any corrupt practices as alleged by the contesting respondent
In these circumstances we are not in a position to allow the judgment of the High Court to stand
492 The appeal is accordingly allowed and the order of the single Judge declaring the election of the appellant Venkata Reddy void and setting aside the same is hereby quashed
The appellant would be 1 entitled to his costs throughout


Summary:
The respondent who was a Muslim was the Congress candidate for election to the State Legislative Assembly
He challenged the appellant s election and the High Court allowed the election petition on three grounds 1 that the appellant committed a corrupt practice under a 1231 Representation of the People Act 1951 in that he offered a bribe to the respondent to induce him not to contest the election 2 that the appellant committed corrupt practice under section 1233A in that he issued and personally distributed a pamphlet containing communal allegations with a view to create ill feeling among the voters and 3 that the appellant s agents distributed that pamphlet with the appellant s contest
Allowing the appeal to this Court  HELD 1a While it is necessary to protect the purity of elections by ensuring that the candidate do not secure the valuable votes of the people by undue influence fraud communal porpaganda
bribery or other corrupt practices the valuable verdict of the people at the polls must be given due respect and should not be disregarded or set at naught on vague frivolous or fanciful allegations or on evidence which is of a shaky or pre varicating character
450F G H b Tho onus lies heavily on the election petitioner to make out a strong case for setting aside the election
He must in order to succeed
plead all material particulars and prove them by clear and Cogent evidence
450G 451K c The allegations of corrupt practice being in the nature of a quasicriminal charge must be proved beyond reasonable doubt
When the election petitioner seeks to drove the charge by purely partisan evidence of his workers agents
supporters and friends the court would have to approach the evidence with great care and caution and would as a matter of prudence though not as a rule of law require corroboration of such evidence from independent quarters unless the court in fully satisfied that the evidence is so creditworthy and true that no corroboration to lend further assurance Is necessary
451A d The attempt of the agents or supporters of the defeated candidate is always to get the election set aside by fair means or foul and the evidence of such witnesses must therefore be regarded as highly interested and tainted evidence
451C D e When the evidence led by the election petitioner even though consistent is fraught with inherent improbabilities and replete with unnatural tendencies the court may refuse to accept such evidence because consistency alone h not the conclusive test of truth
It is however difficult to lay down any rule of universal application and each case will have to be decided on its facts
451D E Bhanu Kumar Shastri vs Mohan Lal Sukhadia  Ors  Rahim Khan vs Khurshid Ahmed  Ors
  Abdul Hussain Mir vs Shamsul Huda and another  and Ghasi Ram vs Dal Singh  Ors   followed
14 L522SCI76 446 2 In the present case the High Court correctly adumbrated the legal propositions but had not correctly applied them to the facts and evidence
It also applied different standards in appreciating the evidence
It readily accepted ll the evidence of two witnesses on one issue while rejecting as partisan and interested on another issue
453A D 3 The cumulative effect of the inherent improbabilities and the intrinsic infirmities of the evidence for the respondent and the unnatural conduct of the respondent and his witnesses lead to the conclusion that the respondent had failed to prove the allegation of the offer of bribe
465B C a The respondent bore a serious animus against the appellant and yet it was alleged that the appellant offered him a bribe even though they were not well acquainted with each other
458G 460D 
b The offer was alleged to have been made in the presence of two witnesses  in a crowded place  and pressed upon the respondent even though he spurned it
The High Court is not right in its view that an offer could have been made as alleged and that only for actual payment a secluded place could be chosen
458F H 459B C c The High Court is also not right in its view that because the appellant was
at the Taluk Office when the respondent went there the appellant would have offered the bribe
On the contrary the respondent for that very reason might have concocted this story of the offer of bribe
457E F d The High Court failed to consider i that while it is easy to make an allegation of offer of bribe it is very difficult for the person against whom it is made to rebut it 457G E ii that the allegation was sought to be proved by the respondent by the partisan and highly interested testimony of two witnesses and was sought to be corroborated by the equally interested testimony of two others to whom the incident was alleged to have been narrated shortly thereafter
and that t he respondent had not examined any independent witness even though such witness were available 457H 458A iii that the appellant would not have attempted to bribe the respondent because the respondent had the support of the Congress and even if he with drew the Congress would have put up another candidate
461B CI iv that the respondent had not complained about the bribe either to the local Congress committee or to the police and 461F G 464D E v that there was no reference either to the corroborating witnesses or to the narration of the incident of the offer of the bribe to those witnesses in the petition
If it were true it is unlikely that the respondent would have omitted a reference to it
464A B e Further
the fact of repetition of the story of the offer of bribe to the two corroborating witnesses was a material particular or an additional fact pertaining to the averments In the petition and not a mere matter of evidence
Since it was nob mentioned in tho petition it has to be excluded from consideration
464B C f As the alleged offer is an electoral offence of a quasi criminal nature the onus of proving it was initially on the respondent but he failed to discharge the onus
464A H g If such a serious allegation is allowed to be proved against a successful
Candidate by partisan interested and improbable evidence without any independent corroboration it would give an easy handle to the defeated candidates to destroy the sanctity of the electoral process
464A 465B 4 The respondent has not adduced any satisfactory evidence that the r offending pamphlet was printed by the appellant or distributed by him personally whereas the appellant has through his evidence Though of a 447 negative character shown that the probabilities are that the appellant did not A have it printed and that he did not distribute it
491E F a  Distribution of an objectionable pamphlet is a corrupt practice under section 1234 and the pamphlet in the present case containing communal propaganda comes under section 1233A as well
471G H 474E b The allegation of publishing such an objectionable pamphlet is easy to make and difficult to rebut
The court must subject the tainted and interested evidence regarding its publication to the strictest scrutiny because it can be printed by the defeated candidate in any press with secrecy
circulated among his supporters and he can make them say that it was printed published and circulated by the successful candidate
471H 472B Baburao Bagaji Karemoga and ors
vs Govind  Ors  followed
c The appellant had denied the printing or publication of the pamphlet and  the respondent failed to discharge his initial onus of proving that the appellant printed and distributed it
472D E d Since there were a considerable number of Muslim voters in the constituency the appellant  would not have taken the risk of offending them by circulating such a pamphlet
The respondent on the other hand had a strong motive to reverse the appellant s election by any possible means and he had his own press
472H 474F G H e The High Court was wrong in its approach that since the pamphlet contained anti Muslim propaganda it would not have been printed by the respondent
An unsuccessful candidate motivated by the desire to unseat a successful candidate would stood to any device to show that the successful candidate was guilt of a corrupt practice
472G f Merely because the respondent disclosed the name of the press where he got some other pamphlets printed it could not be contended by him that he would have disclosed the name of the press which printed the offending pamphlet if he got it printed
The contents of the pamphlet were so offensive that the printer would not have taken the risk of disclosing the name of the press and expose it to legal action
491B C g Most of the witnesses for the respondent who stated that the pamphlet was given to them before or during the election were of the turn coat type that is
persons who claimed to have worked for the appellant but gave evidence for the respondent and tho others were in some way or the other totally interested in the respondent or connected with him
479F Rahim Khan vs Khurshid Ahmed and others  followed
F h one witness gave evidence that he received the pamphlet from his wife during the election
but since she was not examined the evidence was rightly rejected by the High Court
490H 491A i The High Court held that the pamphlet was in existence before or during the election applying the test that the pamphlet was produced by tho witness who stated that it was given to him by the appellant
But that cannot be a safe criterion because the respondent could have handed it over to the witness before he have evidence
Further
the probabilities are that it was not then in existence
471C E i Respectable witness of the appellant gave evidence that no such pamphlet was circulated for then they would have known about it
Also considering its provocative language it is unlikely that the Government officials posted to prevent any communal propaganda by the candidates would have failed to notice it
473B 474G H ii Further the respondent would not have failed to give in the petition or in the material particulars furnished by him later the name of the persons from whom he came to know about the pamphlet
The respondent collected materials for filing the election petition soon after the appellant was declared 448 elected and more than a month before filing it
In spite of such a full and complete opportunity before filing the petition and later when the appellant applied for further particulars regarding the distribution of the pamphlet the respondent merely gave the names of certain villages and the dates on which the pamphlet was alleged to have been distributed but he did not mention tho name of a single person to whom the pamphlet hadbeen distributed by the appellant personally even though according to the led by the respondent he
was in possession of such damaging evidence against the appellant
470B 471B 475A B 490C E iii The respondent had made several complaints to the police about various matters but did not complain about the pamphlet either to the police or the local Congress committee
If his silence was due to legal advice as contended he should have given the explanation in The petition or examined the lawyer who gave such an advice 487E F 490E E 5 a Section 81 of the Representation of the People Act 1951 provides that the election petition shall be filed within 45 days From tho date of the election of the returned candidate
Therefore any allegation of corrupt practice which is not made in the election petition filled within the time allowed by the statute cannot be allowed by way of an amendment under section 865 because that would amount to extending the period of limitation peremp orily fled by the A
The ambit of section 865 is extremely narrow
It requires three essential conditions which arc the sire qua non to be fulfilled before an amendment could be allowed namely i that the amendment seeks merely to amplify the particulars of a corrupt practice ii that the corrupt practice whoso particulars are to be given must have been previously alleged in the election petition itself and iii that the amendment is in the opinion of the court necessary for ensuring a fair and effective trial of the petition
The power of amendment or amplification is thus restrict ed only to amplify the material particulars of any corrupt practice which had been previously alleged in the election petition and the court has no power to allow an amendment by permitting the election petitioner to amplify the material particulars of a corrupt practice which was specifically pleaded In the petition for that would amount to introducing a new corrupt practice after the expiry of the period of limitation a result which was never envisaged by the statute
466H 467B C E Hl Samant N Balakrishna etc
vs George Fernandez  Ors etc
   followed
b In the present case reading the averments in election petition as a whole however broadly or liberally they are construed the irresistible inference is that the respondent had laid special stress on the fact of distribution of the pamphlet by the appellant alone
Wherever the averment of distribution of the pamphlet is made in the petition it is stated that it was done by the appellant
There is absolutely no averment that tho pamphlet was distributed by tho agent workers or supporters or friends of the appellant
Hence it could not be con tended by the respondent that tho averments include not merely distribution by the appellant but also by his agents and workers
Since there was no pleading at all by the respondent that the pamphlet was distributed by his agents etc particulars supplied by the respondent in his application for amendment of his
petition on the point of distribution by agents etc must be completely disregarded
The court also has no jurisdiction to allow such particular to be given with respect to tho fact that the pamphlets were distributed by the agents and supporters of the appellant
Therefore the amendment in respect of the third ground on which the judgment of the High Court was based should not have been allowed the particulars mentioned by the respondent on this item
must be disregarded the evidence given by him should be excluded from consideration and the finding of the High Court should be set aside
468H 469D E F c The attention of tho High Court was not drawn by the appellant to this aspect but as it is a pure question of law and amounts to violation of the statutory mandate in section 865 this Court can decide on the correctness of the order of the High Court allowing particulars regarding distribution of pamphlet by the agents etc of the appellant
469D E 449