Case: Shri Beli Ram Vs. Shri Nand Kumar and Others

do not think we can accept this evidence as true. In the first place, Amrita Sharma was the niece of the appellant and was, therefore, interested in supporting him. Secondly, the counterfoil of the ballot paper issued in the name of Amrita Sharma bore a thumb imprecision and not a signature and it is difficult to believe that Amrita Sharma who had passed her Middle Standard Examination and was undergoing training in Punch Training School should have affixed her thumb imprecision instead of her signature on the counterfoil of the ballot paper. Thirdly, according to Amrita Sharma, she was accompanied by her sister-in-law Ram Piari and both of them cast their votes, but the counterfoil of the ballot paper issued in the name of Ram Piari clearly showed that it was not Ram Piari who cast her vote but some one else in her name because the thumb impression on the counterfoil did not tally with the specimen thumb impression of Ram Piari. Moreover, Om Prakash PW 7 clearly stated that Amrita Sharma did not cast her vote as she was at Punch Training School. The vote cast in the name of Amrita Sharma was, therefore, clearly a spurious vote. The vote cast in the name of Bhagat Ram was also challenged on behalf of the first respondent as spurious but we do not think the evidence on record is sufficient to sustain this challenge. Bhagat Ram stated in his evidence as RW 18 that he cast his vote at Kalideh Polling Station and apart from the negative evidence of Om Prakash PW 7, there is nothing to doubt the veracity of his statement. There was a thumb impression on the counterfoil of the ballot paper issued in the name of Bhagat Ram and it would have been quite easy for the first respondent to take a spaceman thumb impression of Bhagat Ram RW 18 and compare it with the thumb impression on the counterfoil of the ballot paper, but this was not done by the first respondent and, therefore, without anything more, we cannot conclude that the vote cast in his name was a spurious vote. Bidhi Chand also deposed in the course of the evidence given by him as RW 16 that he cast his vote at Brevi Polling Station. The only ground on which this statement of Bidhi Chand was sought to be challenged on behalf of the first respondent was that the counterfoil of the ballot paper issued in his name bore a thumb impression and it was highly unlikely that an educated person like him who had passed his Intermediate Examination would place his thumb impression instead of his signature on the counterfoil of the ballot paper. But the foundation for this challenge was not laid in the cross-examination of Bidhi Chand and he was not asked as to why he placed his thumb impression instead of a signature on the counterfoil of the ballot paper nor was his specimen thumb impression taken for the purpose of comparing it with the thumb impression on the counterfoil of the ballot paper. It is, therefore, not possible to accept the contention of the first respondent that the vote cast in the name of Bidhi Chand was a spurious vote. The result of this discussion is that in addition to the four spurious votes cast in the names of Ram Piari, Padam Nath, Kishorilal and Vishwanath, one more spurious vote must be held to have been cast in the name of Amrita Sharma and hence five spurious votes must be excluded in counting the total votes polled in favour of the appellant.20. That takes us to be last ground of challenge urged on behalf of the first respondent and that ground of challenge was that the application for recount made by the first respondent to the Returning Officer on March 12, 1973, receipt of which was acknowledged by the Returning Officer under Ex. PW 43/3, was wrongly rejected by the Returning Officer and a recount ought to have been made by him. The contention of the first respondent was that if a recount had been made, it would have been clearly ascertained that he had secured higher number of votes than the appellant. Considerable argument was advanced before us in regard to this contention, but we do not think it necessary to deal with the same, since we find that the High Court had adequately dealt with this contention and rightly held that the Returning Officer was justified in rejecting the application made by the first respondent for recount of votes. We agree with the reasoning which prevailed with the High Court in reaching this conclusion. We are also of the view that the High Court was right in not acceding to the application of the first respondent for recount of votes in court. The first respondent did not make out any case for recount of votes and the High Court was justified in turning down his request in that behalf.21. These were the only arguments advanced on behalf of the parties. We find as a result of the aforesaid discussion that, at the highest, only the following votes counted in favour of the appellant : eleven votes in respect of Hidayatpur voters, nine votes cast in the names of Dhanraj, Shakuntala, Lekhraj, Leela Sharma and Vishwanath and five votes cast in the names of Ram Piari, Padam Nath, Kishorilal, Vishwanath and Amrita Sharma. This means that the total number of votes counted in favour of the appellant would be liable to be reduced by not more than 25 votes. But the difference between the votes polled by the appellant and the first respondent, as found by the Returning Officer, was 51 and therefore, even if the difference were reduced by 25 votes, the result of the election would not be affected since the appellant would still have secured the highest number of votes. The election of the appellant cannot, in the circumstances, be set aside as invalid.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The contention of the first respondent was that if a recount had been made, it would have been clearly ascertained that he had secured higher number of votes than the appellant. Considerable argument was advanced before us in regard to this contention, but we do not think it necessary to deal with the same, since we find that the High Court had adequately dealt with this contention and rightly held that the Returning Officer was justified in rejecting the application made by the first respondent for recount of votes. We agree with the reasoning which prevailed with the High Court in reaching this conclusion. We are also of the view that the High Court was right in not acceding to the application of the first respondent for recount of votes in court. The first respondent did not make out any case for recount of votes and the High Court was justified in turning down his request in that behalf.21. These were the only arguments advanced on behalf of the parties. We find as a result of the aforesaid discussion that, at the highest, only the following votes counted in favour of the appellant : eleven votes in respect of Hidayatpur voters, nine votes cast in the names of Dhanraj, Shakuntala, Lekhraj, Leela Sharma and Vishwanath and five votes cast in the names of Ram Piari, Padam Nath, Kishorilal, Vishwanath and Amrita Sharma. This means that the total number of votes counted in favour of the appellant would be liable to be reduced by not more than 25 votes. But the difference between the votes polled by the appellant and the first respondent, as found by the Returning Officer, was 51 and therefore, even if the difference were reduced by 25 votes, the result of the election would not be affected since the appellant would still have secured the highest number of votes. The election of the appellant cannot, in the circumstances, be set aside as invalid.We also agree with the High Court that the allegations made by the first respondent against Ishardas Gupta, the Returning Officer, in regard to the tying up of the used ballot papers into packets and sealing them and refusing permission to the first respondent and his election agent to affix his own seal are not substantiated. The discussion of these allegations by the High Court is adequate and satisfactory and the High Court has given clear and cogent reasons for rejecting the evidence led on behalf of the first respondent on this point. We see no reason to interfere with the conclusion reached by the High Court.These were the only arguments advanced on behalf of the parties. We find as a result of the aforesaid discussion that, at the highest, only the following votes counted in favour of the appellant : eleven votes in respect of Hidayatpur voters, nine votes cast in the names of Dhanraj, Shakuntala, Lekhraj, Leela Sharma and Vishwanath and five votes cast in the names of Ram Piari, Padam Nath, Kishorilal, Vishwanath and Amrita Sharma. This means that the total number of votes counted in favour of the appellant would be liable to be reduced by not more than 25 votes. But the difference between the votes polled by the appellant and the first respondent, as found by the Returning Officer, was 51 and therefore, even if the difference were reduced by 25 votes, the result of the election would not be affected since the appellant would still have secured the highest number of votes. The election of the appellant cannot, in the circumstances, be set aside as invalid.That takes us to be last ground of challenge urged on behalf of the first respondent and that ground of challenge was that the application for recount made by the first respondent to the Returning Officer on March 12, 1973, receipt of which was acknowledged by the Returning Officer under Ex. PW 43/3, was wrongly rejected by the Returning Officer and a recount ought to have been made by him.The contention of the first respondent was that if a recount had been made, it would have been clearly ascertained that he had secured higher number of votes than the appellant. Considerable argument was advanced before us in regard to this contention, but we do not think it necessary to deal with the same, since we find that the High Court had adequately dealt with this contention and rightly held that the Returning Officer was justified in rejecting the application made by the first respondent for recount of votes. We agree with the reasoning which prevailed with the High Court in reaching this conclusion. We are also of the view that the High Court was right in not acceding to the application of the first respondent for recount of votes in court. The first respondent did not make out any case for recount of votes and the High Court was justified in turning down his request in that behalf.The net result of this discussion in regard to the issue of double voting, therefore, is that an aggregate of nine votes were liable to be rejected as invalid and they must be left out of consideration in counting the total votes polled in favour of the appellant.