Dass Gupta, J.
1. The appellant Brij Mohan Singh and the respondent Priya Brat Narain Sinha were among the candidates who contested the Aurangabad Constituency seat for the Bihar Legislative Assembly at the General Election held in 1962. The polling took place on February 21, 1962. The appellant received a majority of votes and was declared elected. The respondent Priya Brat Babu who was the sitting member was defeated on April 9, 1962, he filed a petition challenging the validity of the appellant's election. He prayed for a declaration that the election of the appellant Brij Mohan Singh be declared void and that he (Priya Brat Narain Sinha) be declared to have been duly elected to the Bihar Legislative Assembly from the Aurangabad Constituency. Among the grounds on which the appellant's election was challenged were these three :-
(1) That the appellant was born on October 15, 1937 and was thus under 25 years of age on the date of filing the nomination papers and therefore disqualified under Art. 137 of the Constitution from being a member of the Bihar Legislative Assembly;
(2) That he held subsisting contracts under the Bihar Government in his individual and personal capacity and was thus disqualified under s. 7(d) of the Representation of the People Act;
(3) That the appellant, and with his consent, his party-men Rameshwar Prasad Singh and others (whose names are mentioned) were directly responsible for publication and distribution of copies of leaflets containing direct insinuations and aspersions against the respondent's personal character, these being false to the knowledge of the appellant.
2. The Election Tribunal held on a consideration of the oral and documentary evidence produced before it that none of these or the other grounds on which the validity of the election was challenged had been established. Accordingly, the Tribunal dismissed the petition.
3. On appeal, the High Court of Judicature at Patna set aside the judgment and order of the Election Tribunal and made an order setting aside the election of the appellant Brij Mohan Singh to the Bihar Legislative Assembly. The High Court however refused the respondent's prayer to be declared duly elected.
4. Against this order of the High Court the present appeal has been preferred on a certificate granted by the High Court under Art. 133(1)(b) of the Constitution.
5. The only grounds that appear to have been pressed before the High Court were the three which we have mentioned above. The High Court agreed with the Election Tribunal that the allegation that the appellant held a contract under the Government in his personal capacity had not been established. As regards the other two grounds the High Court disagreed with the Election Tribunal. The High Court held that the appellant was below the age of 25 years on the date of filing the nomination and was therefore not qualified to be a candidate for the Bihar Legislative Assembly. The High Court also held that the appellant had published a leaflet Ex. 10 containing attacks upon the personal character of the respondent and was thus guilty of a corrupt practice within the meaning of s. 123(4) of the Representation of the People Act. As already stated, the High Court set aside the election of the appellant.
6. The findings of the High Court on the question of age and also on the question of publication of the document Ex. 10 have been challenged before us. It was also urged that in any case the pamphlet Ex. 10 did not amount to an attack on the personal character of the respondent.
[After considering the evidence his Lordship concluded that it was not proved that the appellant had committed any corrupt practice or that he was below twenty-five years on the date of filing of nomination papers. On the question whether an entry made in an official record maintained by an illiterate public servant, by some one else at his request is relevant under s. 35 of the Evidence Act his Lordship held :]
7. On an examination of the physical appearance on the hathchitha and the entries made therein, the evidence of the Chowkidar and the circumstances under which this document was ultimately produced before the Tribunal we are inclined to agree with the view of the Election Tribunal that this is a genuine document which was maintained by the Chowkidar in the discharge of his official duty. If the document had been manufactured to assist the appellant we do not think it likely that the Chowkidar would have refused to produce it readily when summoned to do so. The fact that a warrant of arrest had to be executed against him is a convincing circumstance that the Chowkidar was unwilling to produce it. We are not impressed by the argument of Mr. Sarjoo Prasad that the omission of the Chowkidar to produce the document in obedience to the summons and the issue of warrant of arrest to secure its production were all pre-arranged to create an atmosphere for the acceptance of the document as genuine. The appellant's lawyers before the Election Tribunal could not possibly have been sure that the Tribunal would in the last resort issue a warrant of arrest. It is not likely that they would take such risk so that the document might not come at all.
8. In our opinion, this document is genuine and is the book that was maintained by the Chowkidar for noting the births in his llaka during the years 1934 to 1936. The entry therein showing the birth of a son to Sarjoo Singh on October 15, 1935 can however be of no assistance to the appellant unless this entry is admissible in evidence under the Evidence Act. If this entry had been made by the Chowkidar himself this entry would have been relevant under s. 35 of the Evidence Act. Admittedly, however, the Chowkidar himself did not make it. Mr. Agarwal tried to convince us that when an illiterate public servant is unable to make an entry himself and he gets the entry made by somebody else this should be treated as an entry made by the public servant. This argument must be rejected. The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability if its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by illiterate Chowkidar, by somebody else at his request does not come within s. 35 of the Evidence Act. It is not suggested that the entry is admissible in evidence under any other provision of the Evidence Act. The entry in the hath-chitha has therfore to be left out of consideration in coming to a conclusion about the appellant's age.
9. Strong reliance was placed on behealf of the petitioner-respondent on three documents Ex. 2, Ex. 8 and Ex. 18. The first of these is the admission register of Aurangabad Town School where the appellant took his admission as a student on January 19, 1946. In the entry as regards his admission in the register the date of birth is shown as October 15, 1937 and the age as eight years, three months and three days. The second Exhibit (Ex. 8) is an application made by the appellant on August 26, 1959 for the post of a Sub-Inspector of Police. Here also the date of birth is shown as October, 15, 1937. The third document is Ex. 18. It is a certificate issued by the Bihar School Examination Board for his passing the Matriculation Examination. This also states the date of birth as October 15, 1937.
10. An objection was faintly raised by Mr. Agarwal as regards the admissibility of Ex. 2 on the ground that the register is not an official record or a public register. It is unnecessary to consider this question as the fact that such an entry was really made in the admission register showing the appellant's date of birth as October 15, 1937 has all along been admitted by him. His case is that this was an incorrect statement made at the request of the person who went to get him admitted to the school. The request was made, it is suggested, to make him appear two years younger than he really was so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The appellant's case is that once this wrong entry was made in the admission register it was necessarily carried forward to the Matriculation Certificate and was also adhered to in the application for the post of a Sub-Inspector of Police. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant's explanation. Taking all the circumstances into consideration we are of opinion that the explanation may very well be true and so it will not be proper for the court to base any conclusion about the appellant's age on the entries in these three documents, viz., Ex. 2, Ex. 8 and Ex. 18.
11. On an examination of the entire evidence, oral and documentary, we therefore reach the position that the petitioner-respondent has not been able to prove that the appellant Brij Mohan was below 25 years of age on the date of filing of nomination papers while the appellant himself has also not been able to show that he was at least 25 years of age on that date. It cannot be disputed and is not disputed that the burden of proving that the appellant's age was below 25 years on the date of his nomination was on the petitioner-respondent. The petition in so far as it is based on the ground that the appellant was below 25 years of age on the date of his nomination must therefore fail.
12. This brings us to the question of the alleged commission of a corrupt practice under Section 123(4) of the Representation of the People Act. The petitioner's case was that the pamphlet Ex. 10 contained statements in relation to his personal character reasonably calculated to prejudice the prospects of his election, that these statements were false and the appellant either believed them to be false or did not believe them to be true and that this was published by Brij Mohan himself and also by other persons with his consent. To prove such publication the petitioner relied strongly on the testimony of some witnesses who spoke of the distribution of such pamphlets in Bazars and other places in the constituency and even more strongly on the evidence to the effect that the order for printing these pamphlets, was given to the press by Brij Mohan's agent, Rameshwar Prasad Singh, that Brij Mohan paid for it and that the manuscript itself was in Brij Mohan's own handwriting. The oral testimony about the distribution of the pamphlets is of very little value. We have examined the evidence of each of these witnesses and find that the comment of the Election. Tribunal that they have given the story in a parrot-like manner is justified. They are all partisan witnesses and could easily be induced to give such evidence falsely. The Election Tribunal found them unworthy of credit. It does not also seem that the High Court was prepared to rely on this evidence by itself. The High Court was, however, convinced from the evidence of the Proprietor of the Press who gave evidence as Court Witness No. 2 that this pamphlet was printed under Brij Mohan's orders and was paid for by him; and only in view of this conclusion it considered the evidence of the witnesses examined on behalf of the petitioner-respondent to be 'fairly strong.'
13. There can be no doubt that this pamphlet Ex. 10 was printed at the Gokul Press, Aurangabad, Gaya. Sheonandan Prasad is the proprietor of this press and was its proprietor in February 1962 when this pamphlet was printed. He has produced the order book of the press and indicated the Entry No. 62 in that book as the entry in respect of the printing of this pamphlet at his press. He also produced the manuscript from which the pamphlet was printed. It is interesting to notice that this witness did not appear before the Tribunal on August, 27, 1962 inspite of the service of two summons on him to appear on that date. It was when a notice was served on him to show cause why he should not be prosecuted under Section 114 of the Indian Penal Code that he appeared before the Tribunal. That was on August 31, 1962. Then on September 3, 1962 he showed cause against his prosecution. Thereafter on September 4, 1962 he produced the order book of his press and the document said to be the manuscript for the pamphlet. As entry No. 62 in the order book now stands, it purports to show that this pamphlet with the words 'Bagula Neta Se Hoshiar' was printed there. For, under the words indicating the place of residence of the person who gave this order these words 'Bagula Neta Se Hoshiar' appear. They are however in different ink from the rest of the handwriting in that entry and are clearly an interpolation. Sheonandan himself admits that he inserted these words before filing the book before the Tribunal either on September 3, 1962 or on September 4, 1962. He further made a significant admission in these words: 'Because of the request of Naulakh Singh I made the insertion in the Register some time on the 3rd or 4th of September so that the member may easily understand the order in the Register by which the said parody was ordered to be printed.' Naulakh is admittedly one of these who worked for the respondent during the election. It is not possible to accept a witness who has admittedly made a false document in the manner as a witness of truth. The fact that he confessed having made the interpolation does not improve his credibility.
14. It is also worth noticing that this Entry No. 62 mentions three kinds of things as printed:-- (1) 1,000 copies of poster; (2) 2,000 copies of notice and (3) 2,000 copies of ballot papers. The pamphlet Ex. 10 is clearly not included in the terms 'poster'; it is certainly not a ballot paper; and it will hardly be right to call it a notice.
15. On a consideration of all the circumstances we are of opinion that no reliance can be placed on his testimony and no conclusion can be based on his evidence as regards the printing of this pamphlet under orders from the appellant.
16. Naulakh who is another witness who has tried by his evidence to connect Brij Mohan with the printing of this pamphlet, is equally untrustworthy. He stated that during the first week of February 1962 when he went to Gokul Press Aurangabad he found Rameshwar Prasad Singh there and saw in Rameshwar Prasad's hand a manuscript similar to this pamphlet and that in his presence Rameshwar Prasad placed orders for printing this parody in the press. He says that he read the manuscript and thus understood that it was directed against Priya Brat Babu. He could not however remember for what purpose he visited Gokul Press on that day. This, one has to remember is the witness at whose request Sheonandan, the Proprietor of the Gokul Press made the interpolation in the order book. No reliance can be placed on the evidence of such a witness.
17. It is interesting to notice that though some document was produced in court by Sheonandan as the manuscript from which the pamphlet had been printed and it was petitioner's case that this document was in Brij Mohan's own handwriting no attempt was made to prove the identity of the writer by examining a hand-writing, expert or otherwise.
18. P.N. Singh (P. W. 60) who claims to have seen the manuscript of Ex. 10 in the Gokul Press in January 1962 and states that this manuscript was in Brij Mohan's own handwriting was not even recalled to identify the writing of the document that was produced by Sheonandan as the manuscript, as Brij Mohan's.
19. On a consideration of the entire evidence we are of opinion that the petitioner-respondent has not been able to prove the publication of this pamphlet Ex. 10 by the appellant or his agent or by any other person with the consent of the appellant or his election agent. We therefore accept as correct the conclusion of the Election Tribunal that the commission of any corrupt practice by the appellant under Section 123(4) of the Representation of the People Act has not been proved and that the contrary view taken by the High Court is wrong.
20. In view of our conclusion on the question of publication we have not thought it necessary to examine whether the other ingredients of a corrupt practice under Section 123(4) were established.
21. As neither of the two grounds on which the High Court based its conclusion can be sustained, the High Court's order allowing the Election Petition must be set aside.
22. Accordingly, we allow the appeal, set aside the order of the High Court and restore the order of the Election Tribunal dismissing the election petition. The appellant will get his costs from respondent No. 1 throughout.