V. RAMASWAMI, J.
1. This appeal is brought under Section 116-A of the Representation of the People Act, 1951 (Act 43 of 1951) against the judgment of the Madhya Pradesh High Court dated 8th January, 1968 in Election Petition No. 8 of 1967 whereby the High Court dismissed the election petition filed by the appellant under Section 80 of that Act.
2. In the General Election for the Madhya Pradesh Legislative Assembly that took place on the 20th February, 1967 in the Constituency No. 184 i.e. Banda Constituency in Sagar District, the appellant and the respondent besides four other persons were the contesting candidates. The respondent, Mr Ramcharan Pujari, who was a candidate on behalf of the Jan Sangh party, was declared to be elected on the 21st February, 1967 having secured 12,731 votes. The appellant secured 11,908 in that election. The appellant thereafter challenged the election of the respondent on the ground of various corrupt practices alleged to have been committed in para 2 and 3 of the Election Petition. It was further pleaded that the Polling Officers and the other polling staff did not comply with the provisions of the Representation of the Peoples Act, 1951 (Act 43 of 1961) (hereinafter called “the Act”) and the Rules thereunder or the orders made under the Act. In his written statement the respondent controverted each one of the allegations made in the election petition. After consideration of the oral and documentary evidence adduced by the parties, Mr Justice S.P. Bhargava held that the allegations made by the appellant were not established. As many as 16 issues were framed in the case, but we are concerned in this appeal only with Issues 12, 14, 5, 8 and 4 which are reproduced below:
“12. (a) Whether 2 or 3 days before the polling, the respondent got distributed through his polling agent Shri Ramsingh Lodhi rupees one per voter to several electors of Village Khaharmau in order to induce them to vote for the respondent by affixing their seal on ‘Deepak’ symbol?
(b) Whether the payment of this gratification with the object of directly or indirectly inducing the voters to vote for the respondent is a corrupt practice done with the consent or connivance of the respondent or his agent and invalidates his election?
14. (a) Whether on 18-2-1967 the respondent offered a gift or reward to the Sounr Community of Village Boodhakhera one patromax lamp and a large size ‘farsh’ as an inducement for obtaining votes for himself from the voters of that community?
(b) Whether on 23-2-1967 the respondent through his polling agent Birjusingh paid Rs 120 at Banda to Bijain Sounr of Boodhakhera asking him to purchase and offered patromax of his own choice?
(c) Whether the offer of gift or reward as well as the payment of gratification of Rs 120 with the object of directly or indirectly inducing the voters of Boodhakhera to vote for the respondent is a corrupt practice with the consent or connivance of the respondent or his agent invalidating his election?
5.(a) Whether on 15-2-1967 at night time in Village Baraitha, the respondent with the help of his workers and supporters named in the petition convened a meeting of the Jains at the Jain Temple there and after appealing to them not to vote for the Congress candidate as the Congress was not preventing slaughter of cows and thus offending their religious belief and feelings and thereafter made them take oath by their religion not to vote for the Congress, but only for the candidate of Jan Sangh which stood for prevention of cow-slaughter?
(6) If so, does this amount to corrupt practice under Section 123 of the Representation of People Act, 1951?
8.(a) Whether Laxman Ramdeo, Presiding Officer, at the polling station Mudari Bujurg was an old associate of the respondent in the Rashtriya Swayam Sewak Sangh and was detained along with him in Jail about the year 1947-48 when that association was declared unlawful?
(b) Whether Laxman Ramdeo was specifically warned by the Returning Officer not to commit breach of rules?
(c) Whether Laxman Ramdeo also underwent a training called ‘O.T.C’ in the Jan Sangh?
(d) Whether Laxman Ramdeo changed the place of polling booth of Mudari Bujurg from the place initially fixed to another about half a furlong away and also re-allotted the duties of the polling staff assigned to the said booth for the purpose of helping the respondent inside the booth?
(e) Whether Laxman Ramdeo asked the voters to vote for the respondent by putting their voting mark on ‘Deepak’ and even himself put such voting mark on ‘Deepak’ in the voting papers of some voters after taking those from them?
(f) Whether in these ways he interfered seriously with the free exercise of votes by the voters and further the prospect of the respondent by abusing his office contrary to the provisions of law?
If so, has the result of the election been materially affected by his alleged irregularity?
4 (a) Whether on 15-2-1967 (Wednesday) in the afternoon at the Banda Market and on 16-2-1967 (Thursday) at village Bara in the market, and on 17-2-1967 (Friday) in the night at about 8 p.m. in Banda in a meeting addressed by him, the respondent first verbally appealed to the voters to vote for him, who was a Jan Sangh candidate, if they want to prevent the slaughter of cows and their progeny and thus save the Hindu religion and Hindu civilisation from extinction and not for the Congress candidate as the Congress Party was permitting the slaughter of cows and bullocks which are regarded as sacred by Hindu religion and thus destroying Hindu religion, and thereafter he and his workers, named by the petitioner distributed the handbills entitled ‘Savdhan Apki Dharmik Bhavanaon par bhayanker vajraghat’ a copy of which is filed by the petitioner?
(b) If so, whether this amount to a corrupt practice under Section 123 of the Representation of People Act, 1951?”
3. Counsel on behalf of the appellant pressed his argument only with regard to these issues, and said that he will not challenge the findings of Mr Justice S.P. Bhargava with regard to other issues.
As regards Issue 12, two witnesses Ram Singh (PW 41) and Dhokal (PW 42) were examined on behalf of the appellant. Ramsingh deposed that in the last election he worked as a polling agent of the appellant at Kharmau polling station. The respondent had given him Rs 35 two or three days before the date of the polling. The respondent had told him at that time that he should secure the votes of his acquaintances for him without any payment. If he could not succeed in such an attempt, then he should pay Re 1 to each voter and get his vote polled for the respondent. In cross-examination, Ramsingh admitted that he had not rendered any account of Rs 35 which he had received from Ramcharan Pujari, Dhokal (PW 42) said that he received Re 1 from Ramsingh to vote for the respondent and his wife had also received Re 1 from Ramsingh. In cross-examination he admitted that Ramsingh straightaway told him that he should vote for “Deepak” and gave Re 1 each to him and to his wife. According to Dhokal, no attempt was at all made by Ramsingh to persuade him to vote for Ramcharan Pujari without any payment. It is manifest that both Ramsingh and Dhokal are participants in an illegal act and therefore unless there is some independent corroboration of their evidence it is not possible to place reliance thereon. No such corroborative evidence was produced in this case on behalf of the appellant. The High Court was not hence prepared to accept the statement of either Ramsingh or Dhokal as truthful. We see no reason to differ from the High Court in its estimate regarding the credibility of the two witnesses. We hold that Issue 12 was rightly decided by the High Court against the appellant.
4. As regards Issue 12, three witnesses Birjusingh (PW 47), Bajai (Vijay) Saur (PW 38) and Prahlad (PW 49) were examined on behalf of the appellant, Birjusingh worked as polling agent of the respondent at Budakhada. According to this witness, the respondent came to his village two days before the date of election and asked him as to who was the Mukhiya of that community. Birjusingh informed him that Bijaiya (PW 48) was the Mukhiya. Then Birjusingh and Ramcharan and two or three other persons went to the Mukhiya. The respondent requested the Mukhiya that all the members of his community should vote for him and said that if he was declared successful in the election he was willing to give the community a gas lantern and a “farsh”. Birjusingh stated that he had accompanied Bijaiya Saur to Banda to get the gas lantern and the “farsh” from Ramcharan Pujari according to his promise. However, Ramcharan told them that he had no gas-lantern or “farsh” with him and instead gave Rs 120 to Bijaiya for the purchase of the articles. Bijaiya PW 48 and Prahlad PW 49 gave evidence to the same effect and supported the version of Bijai PW 48. The High Court has pointed out that the time and place of payment has not been mentioned in the election petition, but they were disclosed for the first time in the course of the trial. The High Court was not impressed by the evidence of Birjusingh and Bijai who were participants in the illegal act. The evidence of PW 49 offers no material corroboration to that of Birjusingh and Bijai. Counsel on behalf of the appellant took us through the evidence of Birjusingh (PW 47), Bijai (PW 48) and Prahlad (PW 49) but we see no reason to differ from the High Court as regards the credibility of their evidence. We hold that this issue must be answered against the appellant.
5. As regards Issue 5, the appellant has examined G.S. Chhina (PW 29), S.O. Baratha, Sukhdin (PW 44), Jamuna Prasad (PW 45) and Bandolal (PW 50). The evidence of G.S. Chhina (PW 29) is to the effect that the respondent had convened a meeting in the Jain Temple at Baratha and his workers Khubchand (PW 11) and Dr Deepchand (PW 12) were present at the meeting. Khubchand told the meeting that member of the Jain community should vote for the Jan Sangh candidate and not for the Congress candidate as the Congress was not preventing the slaughter of cows which was against the principle of “Ahimsa”. It is alleged that after the said appeal the Jain voters were asked to take oath to vote for the Jan Sangh candidate and not for the Congress candidate. The High Court has disbelieved the evidence of G.S. Chhina (PW 29) holding that there was no adequate reason why the witness should go to Jain Temple on that day for purpose of attending the meeting. As regards Sukhdin (PW 44) and Jamuna Prasad (PW 45), the High Court observed that the story of the oath being taken by the Jain voters was not mentioned in the election petition and was a subsequent development. Jamuna Prasad (PW 45) referred in support of his evidence to a letter Ex. P-12 said to have been written on 16-2-1967 by the witness to his relation Bandolal (PW 50). The High Court has held that Ex. P-12 was concocted subsequently for the purpose of this case and that the evidence of Jamuna Prasad (PW 45) and Bandolal (PW 50) as regards Ex. P-12 was false. Mr Rameshwar Nath read the contents of the original letter Ex. P-12 during the course of the hearing. The language of the letter suggest that it was carefully drafted after taking legal advice and could not have been written in the normal course of Jamuna Prasad (PW 45). In our opinion, the High Court has taken a correct view of the evidence and this issue must be answered against the appellant.
6. With regard to Issue 8, the finding of the High Court is that Laxman Ramdeo, Presiding Officer, was an old associate of the respondent and was detained along with him in jail about the year 1947-48. The High Court further held that an oral warning was given to Laxman Ramdeo not to campaign for Jan Sangh candidate. As regards the change of the polling booth, the High Court has found that the place of polling booth at Mudari Bujurg was changed to the new school about half a furlong away from the old school. But there is no allegation made in the election petition that due to the change of place of voting, the result of the election so far as it concerned the respondent had been materially affected. According to Section 100(i)(d) (iv) of the Act if there had been any non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the appellant must show that the result of the election in so far it concerns the returned candidate has been materially affected, if he wants the election of the returned candidate to be declared void. There is no evidence on this point and even assuming that the polling booth was first fixed to be the old school and it was subsequently changed by Laxman Namdeo without the permission of the appropriate authority, the election cannot be held to be void in the absence of any proof that the result of the election was materially affected so far as it concerned the appellant. On Issue 8(e) the appellant examined Nanhe (PW 33), Puttobai (PW 34), Mst. Parvatibai (PW 37) and Nanda (PW 38) who all stated that Laxman Namdeo had induced them to vote for the Jan Sangh candidate inside the polling booth. The High Court found the evidence of these witnesses to be unreliable. Mr Rameshwar Nath took us through the evidence of these witnesses and we see no reason to differ from the view taken by the High Court on this point.
7. With regard to Issue 4, Mr Rameshwar Nath confined his argument to the meeting of February 16, 1967 held at Village Bara. The allegation of the appellant is that the respondent and Kunjansingh had addressed a meeting in the market at Bara on 16-2-1967 and distributed the handbills similar to Ex. P-1 there. It is admitted by the respondent that he had addressed the meeting. But he denied having made any appeal on the ground of religion and has denied that the hand-bill Ex. P-1 had been distributed there. The appellant examined five witnesses, Balmakund (PW 18), Ghasiram (PW 19). Jagannath Prasad Jain (PW 20), Motilal (PW 21) and Nathulal (PW 22), in support of his case on this point. Except Jagannath Prasad all other witnesses said that in the speech delivered by the respondent it was stated that “to cast one vote in favour of Congress was committing the sin of killing a cow”. The High Court has held that no such allegation was made in the election petition, and so, the evidence of PWs 18, 19, 21 and 22 on this point could not be believed. As regards the distribution of hand-bills, the oral evidence is conflicting to some extent. PW 19 and PW 21 said that after Ramcharan Pujari and Kunjansingh addressed the meeting, handbills similar to Ext. P-1 were distributed by the appellant. Jagannath Prasad (PW 20) did not say anything about the distribution of any hand-bills. Balmukand (PW 18) said that Ramcharan Pujari addressed the meeting but the distribution of hand-bills was made by both the respondent and Kunjansingh. Nathulal (PW 21) said that only respondent had addressed the meeting and he only distributed the handbills. In rebuttal of the evidence, Ramcharan Pujari examined himself and one more witness Hazarilal Tamrakar (RW 4). On scrutiny of the evidence given by both the parties in the case, the High Court has reached the conclusion that the evidence given on behalf of the appellant was not credible and there was no proof that on 16-2-1967 the respondent made any appeal on the ground of religion in the meeting held at Bara market. The High Court further held that the distribution of handbills similar to Ext P-1 was not established. We see no reason to differ from the finding of the High Court.
But even on the assumption that the evidence adduced by the appellant is true, the case will not fall within the mischief of Section 123(2)(a)(ii) and (b) of the Act, which read as follows:
“123. The following shall be deemed to be corrupt practices for the purposes of this Act:
* * *
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his election agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that —
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who —
* * *
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,
shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.”
8. According to the appellant's evidence the respondent said at the meeting “Congress Government slaughters the cows. She spoils the culture of Hindu religion. Hindu religion cannot be protected by Congress”. “If one vote is cast for Congress, it is equal to slaughter of a cow”. (See the evidence of PW 18, Balmakund). In Ex. P-1, it is said that “Congress wants to continue the slaughter of bullocks”. It is not the allegation of the appellant that the respondent said that “the voters will commit the sin of cow-slaughter if they vote for Congress”. On the contrary the allegation is that the Congress Party was out to kill the bullocks and cows. The leaflet Ex. P-1 is levelled against the Congress Party, and there is no invocation of divine displeasure upon the voters who choose to vote for the Congress Party. It follows that the case does not fall within the definition of “undue influence” under Section 123(2)(a)(ii) of the Act. Mr Rameshwar Nath referred to the decision of this Court in Narbada Prasad v. Chhagan Lal1 where it was held that the statement “if the voters voted for the Congress Party they would be committing the sin of go-hatya”, was tantamount to an attempt to induce the voters to believe that they would become or would be rendered an object of divine displeasure within the meaning of Section 123(2)(a)(ii) of the Act. As we have already pointed out, the alleged statement of the respondent in the present case is different and the principle laid down by this Court in Narbada Prasad case1 is not applicable. We hold that Issue 4 was rightly answered against the appellant.
9. For the reasons already expressed, we hold that there is no merit in the appeal which is accordingly dismissed with costs.