M. Hidayatullah, C.J.
1. This is an appeal under Section 116A read with Section 98 of the Representation of the People Act against the decision of the Election Tribunal, Morena, in Election Petition No. 247 of 1957 decided on 31 March 1958. The petition was filed by the present appellant Jamuna Prasad Singly who was an elector in the constituency. The election relates to the Legislative Assembly of the State from the Ambah single-member constituency. As many as 7 candidates contested the election, and the first respondent Shri Ramnivas was returned as elected.
2. In his petition the present appellant set out a number of grounds which were all decided against him with the result that the election petition was ordered to be dismissed. In this appeal the findings on most of the major points have been challenged before us, but the discussion of the election appeal can be dealt with under 14 distinct heads. In addition to the corrupt practices which were alleged against the returned candidate and others, there are matters of a procedural character, which are also included. We need not try to separate the two because the sequel will show our decision both on the procedural aspect of the case and on merits.
3. I. By an order dated the 24th September 1957, issue No. 18 which was framed in the case was disallowed. Previous to this an application had been made on the 5th August 1957 for the amendment of an averment on which the issue was based. The application for amendment itself was dismissed by an order dated the 12th August 1957. The appellant challenges not only the order of dismissal of the contention contained in the 18th issue but also questions the order of the Tribunal with regard to the decision on the amendment question. We shall deal first with the amendment and then pass on to the decision of the issue.
4. In view of the fact that in the petition which was filed the petitioner had alleged that Huzuri dacoit had exercised undue influence over electors of the Ambah constituency between the 28th February 1957 and 4th March 1957 and had threatened the electors with injury to life and property and thus compelled them to vote for respondent No. 6, the issue, which was framed, correctly reflected this aspect of the controversy and mentioned specifically that the acts of Huzuri dacoit were calculated to benefit respondent No. 6.
If this was a fact, there would be a corrupt practice committed in the interests of respondent No. 6, and in view of the provisions of Sections 100 and 123 of the Representation of the People Act this matter could not be gone into in an enquiry against the present returned candidate. By his application for amendment the petitioner sought to change respondent No. 6 to respondent No. 1. It may be pointed out that a period of almost four months had passed between the filing of the petition and the date of the application for amendment.
During this time some of the respondents had already filed their written statements, and the first respondent, who was affected by the amendment, had also tendered his written statement on the 5th August when the application for amendment was made. In view of this delay the Tribunal did not accept the plea that the amendment was bona fide or was sought with is little delay as was possible. The Tribunal, therefore, disallowed the amendment.
The application for amendment of the original petition by correction of clerical and typing errors contains no other correction of such a vital nature as this. We do not think that for a long period of four months the petition would not have been scanned by the petitioner or his counsel. If so a mistake of this vital character would have been noticed much earlier. Indeed, there was no need for the counsel for the petitioner or the petitioner to have written 'No. 6' in handwriting in another part if the allegation had been made in respect of the first respondent.
The typist had left that place blank. We are of the opinion that the allegation was made without advertence to the law on the subject and that after instructing themselves about the law the persona concerned felt that the allegation ought to have been made against the first respondent, and the petition was sought to be corrected. In view of the long delay and the fact that the written statements on the original allegation were already in, we do not think that the Tribunal erred in disallowing the amendment.
5. Once this question is decided in this manner and the petition is not corrected, it is manifest enough that the decision of the Tribunal in rejecting the contention as affecting the election of the returned candidate cannot be questioned. That election can only be questioned if a corrupt practice is proved as required by the terms of Section 100 and not a corrupt practice with reference to any of the other defeated candidates. We accordingly uphold the decision of the Tribunal on this part of the case.
6. II. The next contention of the appellant was that some of the allegations regarding undue influence on behalf of the returned candidate were not allowed to go to trial. These allegations were contained in sub-paragraphs (3) and (4) of paragraph 12(c) of the petition and were the subject-matter of the same issue. In these sub-paragraphs the reference is to the first respondent, and it is alleged that gangs of dacoits, particularly of Rooplal and Lakhan Singh, were openly canvassing for this respondent. It was then alleged that the said gangs of dacoits of Rooplal and Lakhan Singh canvassed the voters on or before the 6th March 1957 in 15 villages, which were named.
The Tribunal held that the fact that these persons were canvassing did not connote any corrupt practice, and the appellant-petitioner therefore sought to connect these sub-paragraphs with other paragraphs of the petition, to which the Tribunal did not agree. In our opinion, these allegations did not amount to an allegation of corrupt practice, however reprehensible it may be for people to have gone to seek the assistance of gangs of dacoits. We say nothing about the truth of the matter because the issue was not allowed to go to tral and was disallowed. We think that the decision of the Tribunal on this part of the case is impeccable.
7. III. The next ground is the disallowance of the application for amendment of paragraph 12(B) (ix) of the petition, where respondent No. 6 was sought to be changed to respondent No. 1. The Tribunal rejected this application by its order dated August 12, 1958. What we have said earlier applies here equally. There is no force in this submission.
8. IV. The next contention of the appellant is that the decision of the Tribunal that corrupt practice alleged to he committed by candidates other than respondent No. 1 could not he investigated under the petition and the Tribunal had no jurisdiction to enquire into the facts relating to them was wrong. The Tribunal had by its order dated 24th September 1957 ordered that these allegations should be struck off.
A bare perusal of Section 100 of the Representation of the People Act clearly shows that corrupt practices committed with the consent of the returned candidate or his election agent or by any other person in the interests of the returned candidate can alone be the subject-matter of enquiry, and it is on the basis of such corrupt practices alone that the election can be declared to be void. It is quite clear that if corrupt practices are committed by other candidates in the field they cannot be put to the account of the returned candidate and a case made out against him. This part of the decision of the, Tribunal, therefore, is correct, and we do not think that there is any flaw in the reasoning of the Tribunal.
9. V. The appellant next asked for a reconsideration of the order dated 8-10-1957 by which certain issues (Nos. 11 to 17 and 20) were ordered to be not triable. These concern Annexure A, which was circulated on behalf of the 5th respondent and contained false statements against respondents 1 and 2. It was contended that this amounted to the publishing of a statement believed to be false or not believed to be true etc. and was a corrupt practice within Section 123 of the Representation of the People Act. Here again, we are not concerned with a false statement made by any person against any candidate but a false statement designed to better the prospects of a returned candidate.
It cannot be said that the false statements contained in Annexure A were designed to better the prospects of the returned candidate because in those statements respondents 1 and 2 were both maligned and charged with some heinous acts. In view of this, we do not think that the Tribunal was in error in refusing to try this issue because it did not fall squarely within the provisions of Section 100 or Section 123 of the Representation of the People Act,
10. VI. By the same order dated 8-10-1957, issues Nos. 21 and 22 were said to be not triable. These issues related to allegations that the villages bordering the river Chambal and Kunwari ravines were disturbed areas where election campaign could not be carried out and were under the influence of gangs of dacoits, particularly of Rooplal and Lakhan Singh, and that the gangs of these dacoits, particularly of Rooplal and Lakhan Singh, were openly canvassing for respondent No. 1 among the voters, specially of the villages mentioned in paragraph 12(C) (4) of the petition.
These allegations did not amount to any averment of a corrupt practice. Whether the dacoits were canvassing for the first respondent or the 6th respondent or any of the candidates is a matter which has not been tried and is one on which we need not pronounce any opinion. But taking the averment for what it is worth it is quite clear that there was no assertion of any corrupt practice committed by either the returned candidate or his election agent or any person in the interest of the returned candidate.
No doubt, the intention is to aver that some kind of pressure was being exercised upon the voters of this locality. But allegations with regard to those were specifically made in another context, and we shall come to those allegations in their turn. In these issues and in the averments on which they were based there is no semblance of any averment that any undue influence or any corrupt practice was perpetrated. In view of this, we do not think that the order of the Tribunal can be questioned.
11. VII. The next contention of the appellant was that a handbill (Annexure C), was issued by certain Government servants in favour of the 6th respondent. By an order dated 11-10-1957 the Tribunal rejected this issue as not triable in a petition filed against the election of the 1st respondent, We think that the reasoning which we have given above in relation to certain other averments against the 6th respondent also applies equally here, and we think that the Tribunal was quite right in not trying an issue which related to the 6th respondent and not the first respondent.
12. The petitioner then made a general statement that Government servants were canvassing tor the first respondent. The allegation was not made with the particularity which the law insists upon and therefore by an order dated 18-10-1957 the Election Tribunal refused to try the issue. Paragraph 13 of the election petition contains the averments on this subject. It will be noticed that the allegations do not satisfy the conditions laid down in the Act with regard to particulars and the Tribunal was therefore quite correct in refusing, in the absence of specific particulars, to allow the matter to go to trial.
13. VIII. The same can be said of paragraph 16 of the election petition on which issue No. 33 was based. That paragraph contained aspersions against respondent No. 5 and the corrupt practices committed by him and the 6th respondent and their agents and their associates. It was alleged at that time that this was with the consent of respondents Nos. 1, 5 and 6. It was also contended that the election was not a free election because undue influence was exercised by these respondents amongst the electors. The allegation lacked particulars, and it is manifest that under the scheme of the Representation of the People Act this kind of allegation could not go to trial.
14. IX. We then come to the decision on issues 24(a), (b), and (c). These were framed on the allegations contained in the petition that voters residing in villages Rudhaoli, Agenda, Ruhar, Barwai, and Ratanbasai were threatened by one Gitaram, who had taken with him to these villages Dulare and Narsingh, brothers of Rooplal dacoit, in the jeep car of the first respondent between the 2nd and 5th March 1957.
The allegation was that the voters of these villages were told to beware if they voted for any party but the Congress because dire consequences would ensue if they voted otherwise. The evidence on this part of the case was brought to our notice, and it was contended before us that the evidence was wrongly assessed by the Tribunal. The Tribunal did not accept the evidence of the witnesses who were cited to prove these allegations that the first respondent and Gitaram had gone in a jeep to these villages between the 1st March and 5th March 1957 and had threatened the voters of that area.
15. The villages were mentioned in sub-paragraphs (5) and (6) of paragraph 12(C) of the petition, and the allegation is also contained therein. We have scrutinized the evidence on this part of the case, and we find that the attempt is to prove through the mouth of a few witnesses belonging to the party of the second respondent or interested in his party. On the other hand, the first respondent has examined three witnesses to show that no such thing happened in the villages concerned, and these persons have categorically denied that any such visit was made.
16. We do not think that we should scan at large the evidence which has been very properly considered by the Tribunal. We may state here that an appellate Court should be slow to interfere with a finding unless the appellant can demonstrate that the finding is erroneous. By merely pointing out that a possible contrary view of the evidence could be taken, the appellant does not discharge the burden which he bears as an appellant.
Where the testimony of a witness is accepted or rejected on a consideration of the probabilities, the appellate Court may be in as good a position as the trial Court to re-examine the probabilities and to accept or reject the testimony anew; but where the decision of the trial Court, which had the opportunity of seeing the witnesses in the box and watching their demeanour, and which had also the chance of comparing one testimony against another, is based on the credibility of such witnesses, the appellate Court should be exceedingly slow to reach a different conclusion even if that different conclusion may appear possible.
This is laid down by their Lordships of the Privy Council in a series of cases to which this Court has referred in other election cases. It is not necessary to encumber this order with a citation of those authorities. It is an accepted proposition of law that an appellate Court does not start by rewriting a judgment according to its own wishes simply because it has the power of reviewing the evidence again. What the appellate Court does is to see whether the view taken by the trial Court is reasonably open in the circumstances of the case and in the light of the evidence. That another view was also possible is not the test or the criterion. The appellant in discharging the burden has to show that when all is said and done there is a substantial balance in his favour on which the appraisal of the evidence should be reversed.
17. Having considered this evidence, to which we need not refer in detail because it has been dealt with by the Election Tribunal, we are quite satisfied that the view which has found favour with the Election Tribunal was correct. Indeed, we think we may say that had the matter been before us even for the first time, we would have reached the same conclusion with regard to this testimony, and in saying so we think that we need not give the same reasons again.
18. X and XI. This brings us to two other matters of a like nature which were covered by issues 26(a), (b) and (d). Here again the allegation was that the voters in the villages Silaoli, Sikhara, Kichol, Bhadaoli, Arron, Dhorra, Dhinderi, Kuratha, Raipur and Senthra were threatened. The evidence is conflicting on this part of the case as well and the allegation is on a par with that which we have discussed with regard to issue 24.
We may point out here also that the local inhabitants of these villages have not supported the petitioner. It was contended by the learned counsel for the petitioner-appellant that these villagers were still under the influence of the dacoits in whose name they were threatened and that the villagers are not likely to support the version of the petitioner. We do not think that that is a sufficient ground for rejecting the testimony of the local inhabitants, namely, the voters who have denied that they voted under any duress.
The witnesses who have been brought to support the case of the petitioner have been found to possess considerable interest in the candidate in whom the petitioner is interested and their testimony has therefore to be received with considerable caution. The Tribunal, which had the chance of seeing these witnesses, has rejected the testimony led on behalf of the petitioner, and we may say here that the reasons advanced by the Tribunal are sufficient to discredit them.
We do not think that any useful purpose will be served by reviewing at large over again the evidence which was read in extenso to us because we think that the view as regards the credibility of these witnesses should not lightly be reversed and further because we take the same view of the credibility of these witnesses. In view of this, we do not see any reason to interfere with the findings given by the Tribunal on this issue.
19. XII. In issues 30 and 31, the findings on which are questioned, the point in dispute was whether the polling station at Nagra had been changed without notice to the voters. The proclamation of the place of poll shows that polling was to be held in the Government School building. At Nagra there is an old school building in which the school is functioning and a new school building which is being constructed by the Government.
The allegation was that though polling was to be in the old school building it was at the last minute held in the new school building under construction. It was alleged that Sabasingh one of the persons who was canvassing for the first respondent, has his house close by, and that this indirectly influenced the voters into thinking that, if Sabasingh could arrange to have the place of poll shifted from the old school building to the new, the voters must give their votes for the candidate in whom Sabasingh was interested.
In our opinion, this reasoning is somewhat farfetched. All that could be said was that by the change of venue the voters were left in doubt and could not reach the place. That, however, is not the allegation; and no attempt has been made to establish any such thing. The proclamation itself was somewhat vague inasmuch as it only said 'Government School Building' without specifying whether the old school building was meant or the half-constructed one.
Be that as it may, we do not think that the proximity of Sabasingh's house had anything whatever to do with the result of the poll because in the polling booth nobody is there to see how a voter has cast his vote and the voter who voted in secrecy had no reason to fear Sabasingh or the proximity of his house. We think that the decision on this issue by the Tribunal is manifestly correct and we decline to interfere.
20. XIII. That leaves over two points in the case on which a certain amount of argument took place. Issues 4, 5, 8, 9 and 10 dealt with the rejection of the nomination paper of the seventh respondent Jhandulal, This Jhandulal was described in the voters' list as 26 years of age and it appears that he had filed an affidavit in proof of his age before the Returning Officer. Later, on enquiry it was found that Jhandulal was under 25 years of age and was not a competent voter.
As a result, his nomination paper was also rejected. It was contended that Jhandulal was really above 25 years of age and the rejection of his nomination paper brought the matter within Section 100(1)(c) of the Representation of the People Act and the election was therefore void. If the nomination paper of Jhandulal was wrongly rejected, then it is manifest that the election would be void because Section 100(1)(c) of the Representation of the People Act does not admit of any qualifications.
The petitioner, however, failed because Jhandu-lal's age was wrongly given by him. Jhandulal was described as born on 5-6-1934 in the Admission Register of the Middle School, Ambah (Ex. D-3). D. W. 34 Ramchandra Verma, Principal, Inter College, Ambah, also deposed that in the application for seeking admission to the IX class his date of birth was shown as 5-6-1934.
In the Register of Scholars at Ambah High School, the entry with regard to Jhandulal's age was 22nd September 1937. This was on the basis of an affidavit sworn on 29-11-1955, Ex. D-2 which was filed there. No doubt, Jhandulal sworn an affidavit (Ex. P-1) on 11th September 1956 to show a different age. But the Returning Officer went by the entries in the School Register which were certainly made prior to any dispute with regard to the age of Jhandulal and could be accepted as more authentic.
Whichever date one takes -- whether of 1934 or of 1937 -- it is quite obvious that in March 1957 Jhandulal had not reached the age of 25. The decision therefore of the Tribunal, based as it was on the evidence, was certainly correct. It may be pointed out that Jhandulal in the course of the trial of the petition also stated that he did not question the decision of the Returning Officer declaring him to be below the age or 25. The petitioner examined P. W. 2 Dr. Joseph, whose testimony, however, was so indefinite that no reliance could be placed, upon it to find out the accurate age of Jhandulal.
We may point out here that it was futile for any doctor to attempt to determine whether the impugned age of the person was 24, 25 or 26. We may state that probably no test exists by which correct age can be determined accurately at this age level. The Tribunal also drew an adverse inference against the petitioner because a certain part of the evidence was not brought before it. We do not think that an adverse inference need have been drawn because the affidavits of Jhandulal himself were conflicting and the Tribunal had already seen that between the affidavits filed to secure a verdict of valid nomination and the earlier affidavit the one to rely upon was the latter.
We think that the Returning Officer was suite correct in refusing to accept the affidavit filed before him in view o the evidence existing in the School Register as to the age of Jhandulal. Since Jhandulal was below 25 years of age, there can be no question that his nomination paper was validly rejected. That being the case, the provisions of Section 100(1)(c) of the Representation of the People Act are not attracted to the case at all.
21. XIV. This leaves over for consideration only issues 32(a) and (b). The allegation here is that the returned candidate Ramnivas carried the voters from village Senthra to the polling station at Porsa in a truck No. M. B. C. 1273 belonging to one Sbankersingh (D. W. 39) on the date of the poll. The learned counsel for the answering respondent contended that this was not a proper averment in view of the decision of their Lordships of the Supreme Court in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, 1955-2 SCR 428: ((S) AIR 1955 SC 610).
His contention was that to bring the case within the provisions of Section 123(6) of the Representation of the People Act it had further to be averred that the truck was hired or procured by Ramnivas, the returned candidate. He also contended that it has now been ruled by their Lordships of the Supreme Court that in the absence of such an allegation the matter cannot go to trial because the case is of a quasi-criminal nature.
He relied upon the decision of their Lordships of the Supreme Court reported in Harish Chandra v. Triloki Singh, (S) AIR 1957 SC 444. Even otherwise also, the learned counsel for the respondent contended, this point was not satisfactorily proved, and he cited the well-known rulings on the subject of the powers of the appellate Court to take a different view of the evidence from that taken by the Court below.
22. We need not go into the question whether the averment was complete or not and whether in view of Section 83 of the Representation of the People Act, more particulars were needed because, in our opinion, the decision on facts given by the Tribunal is correct.
23. It may be pointed out that the only corrupt practice charged against the returned candidate is the employment of just one truck to carry the voters from village Senthra to the polling station at Porsa. It was admitted before us that the distance between two villages is only three miles. We questioned whether there was any evidence to show that there was any special difficulty in the way of the voters going from Senthra to Porsa, and we found on enquiry that there were no such circumstances.
It would, therefore, appear rather strange for a returned candidate who had secured almost half the votes cast in the constituency to employ just one truck to carry about 100 odd voters from village Senthra to Porsa. The allegation contains recitals of certain names and it is with the assistance of such names that the truth or falsehood of the allegation can be examined. As is often the case, the evidence on this part is radically opposite on the two sides. On the one hand, there is the evidence that the voters of village Senthra were carried in this truck to the polling station and on the other side there is the evidence that this truck was lying in the village Badapura out of repair and was not serviceable and was not so used.
24. We may point out that the owner of the truck. Shankersingh (D. W. 39), stated that his truck was not usable at that time; but he admitted frankly that he was not present in the village and that the truck was in the custody of his driver Gendasingh alias Baba. Nobody examined Baba, and both sides attempted to charge the other with dereliction of duty in not bringing the best evidence in his possession. The learned counsel for the appellant contended that after the answering respondent had brought in Shankersingh, the owner of the truck, as a witness, he might well have gone further and brought also the driver Baba as his witness.
The other side replied by saying that Baba's name was shown as a witness for the petitioner and the list was put before us. We find that Gendasingh alias Baba was witness No. 97. We think that in a case of this kind, which is quasi criminal, the burden was on the petitioner to establish his case and he cannot wait for the defence to bring in the material witness. If Baba's testimony was really material for the decision of this issue, the burden would be upon the petitioner to bring that witness into the Court so that his testimony could be usefully examined.
Otherwise, it would be tantamount to saying that the eye-witnesses need not be examined by the prosecution and it be left to the accused to bring them in his defence to show that he had not committed the murder. We do not think that a case of this kind admits of any reversal of burden of proof. The burden has to be discharged by the petitioner and no adverse inference can be drawn against the returned candidate charged with corrupt practice for failure to bring a material witness who would have thrown light upon the transaction. That burden must remain on the petitioner, and if he does not bring the witness, it does not lie in his mouth to say that that witness ought to have been examined in rebuttal by the returned candidate or that an adverse inference be drawn.
25. The evidence on this part of the case, as we have pointed out, is conflicting. Bhogiram (F. W. 241 names a number of persons who had travelled on the truck to Porsa. It is remarkable that though the names of Kammodilal (P. W. 16), Malkhansingh (P. W. 17) and Lakhansingh (P. W. 18) were mentioned as passengers on this truck, these persons when they were examined as witnesses did not claim to have travelled by that truck.
They however, supported the case of the petitioner that a truck was employed to carry voters of village Senthra to Porsa. Similarly, there is a vital difference between the evidence of Bhogiram (P. W. 24) and Laxminarayan (P. W. 13) and the evidence of Gopalsingh 9P. W. 19). Gopalsingh (P. W. 19) claimed that he was looking after the sending of the voters to the polling station at Porsa.
But this claim of his is opposed to the evidence of the other two witnesses. If we go by the evidence given by the other witnesses, we find that Gopalsingh had travelled by that truck to the polling station at Porsa. One of the witnesses stated that Gopalsingh was seated by the side of the driver when the truck made the journey. We cannot think that there should be such a discrepancy and the discrepancy exists not between the witnesses who have come for the defending candidate, but between those on behalf of the petitioner himself.
The number of voters in village Senthra would not be large, and it is remarkable that these witnesses should make so many conflicting statements even on such a small matter when they remember every other detail. Similarly, the evidence of Malkhansingh (P. W. 22) and Manikchand (P. W. 23) merely demonstrates that the truck was in use on that day and halted behind the Kendra Bhawan, when certain persons alighted therefrom, who, on being questioned, stated that they were voters from village Senthra and that they were going to vote for the answering respondent Ramnivas.
26. An additional piece of evidence was that not only was the truck utilized for this purpose but also Ramnivas in a jeep had accompanied the voters' truck all the way from Senthra to Porsa. The answering respondent examined one of the persons named Gajveer (D. W. 18), who was alleged to have travelled on the truck; but he denied that any truck was ever used or that he had travelled in it. Similarly, the answering respondent examined two other witnesses Kalyansingh (D. W. 19) and Badriprasad (D. W. 20), residents of Senthra. who stated that no truck was utilised for carrying voters from this village to Porsa.
In view of the interest which has been demonstrated by the Tribunal, in so far as the witnesses for the petitioner are concerned, we are satisfied that we cannot take a different view of the matter, because the testimony of the witnesses for the petitioner himself is conflicting and is open to great suspicion of fabrication. We are therefore satisfied that the finding given on this part of the case is correct.
27. We may state here that in view of the purity of elections which we must maintain, we had the entire evidence read to us in Court and commented upon by the learned counsel for the appellant. We are of opinion that nothing has been shown to us in the comments of the learned counsel which would demonstrate an error of the Tribunal. In view of the principles which we have already detailed above, we do not think that we should take a different view of the facts on this part of the case and we are also otherwise not inclined so to do,
28. The result therefore is that the appeal has no substance. It fails and is dismissed with costs. Counsel's fee Rs. 100/-.