S.S. Chadha, J.
(1) The only question which arises for decision in this election petition under Section 81 of the Representation of the People. Act, 1951 (hereinafter referred to as the Act) calling in question theelection of Shri Babu Ram Solanki to the Metropolitan council for Delhi. from Constituency No. 45-Ram, Nagar is whether the respondent may be said to be guilty of corrupt practice contemplated by sub-section of Section 123 of the Act and by reason of the alleged fact of. the , of, or appeal to religious symbol of Durga Mata seated on a lion visible on a board affixed at Chowk opposite Hanuman Mandir, Multani Dhanda, Delhi, within the said constituency.
(2) The total number of seats in the Metropolitan Council for Delhi as provided in section 3 of the Delhi Administration.Act, 1966 to be filled by persons chosen by direct election from territorial constituencies is 56. By virtue of section 9 of the said Act, the provisions cantained in Farts Iii to Xi of the Act and of any rules and orders made there under, for the time being in force, have been made applicable to the election of the members of the Metropolitan Council of Delhi (hereinafter referred to as the Metropolitan Council). Section 10 of the said Act provides that the Metropolitan Council, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer, and the expiration of the said period of five years shall operate as a dissolution of the Metropolitan Council. The last election of Members to the Metropolitan Council took place in 1972 for the term of 5 years and the same expired in 1977 which necessitated the elections for 56 members to the Metropolitan Council from 56 territorial constituencies. The election programme as notified by the Election Commission was as under :- Last date for filing the nomination, papers. 18-5-1977 Date of scrutiny of nomination papers. 19-5-1977 Last date of withdrawal. 21-5-1977 Date of Polling. 12-6-1977 Date of counting. 14-6-1977 (The dates have been wrongly given in the election petition, but correct dates were admitted at the time of the Hearing of the arguments by the Counsel).
(3) Nine candidates filed their nomination papers before the Returning Officer who accepted the nomination papers on the date of scrutiny. Three of the candidates later withdrew their nominations or candidatures. Consequently, there remained in election contest six candidates. Polling took place on 12th June, 1977. Counting took place on 14th June, 1977. As a result of the counting, the Refurning Officer declared the respondent as having been elected. The respondent secured 12,695 votes as against 9,569 polled by the petitioner
(4) It is pleaded in, the election petition that .the election of the respondent is liable to be vitiated and held void on the ground that corrupt practices have been committed by the respondent and his election agent and by other persons with their consent in, the election in question. It is further pleaded that in any case the result of the election in so far as it concerns the returned candidate has been materially affected by such corrupt practices committed in the interest of the returned candidate, being corrupt practices committed by the agents other than the election agent of the returned candidate. The particulars of the corrupt practice are given thus.
(5) The respondent was the Congress nominee and the petitioner was the Janata Party nominee. The election to the Delhi Municipal Corporation also took place simultaneously to the election in question. The Delhi Metropolitan Council constituency No. 45 comprised two Municipal wards, namely. Ram Nagar Municipal Ward No. 78 and Qadam Sharif Municipal Ward No. 79 from which two candidates were set up by the Congress Party and two candidates were set up by the Janata Party. The candidates set up by the Congress Party from these Municipal Wards supported the candidature of the candidate set up by the Congress Party for Metropolitan Council constituency in question. The respondent was being supported by S/Shri Leela Ram Anand and Purshotam Lal Wason who were the Congress Party nominees from these Municipal Wards comprising the Metropolitan Council constituency in question. Both were the agents in respect of the election of the respondent in question. The respondent managed to get himself admitted in the Willingdon Nursing Home, New Delhi on the basis of false allegations that he was given injuries by the workers of the Janata Party. The respondent his election agent Shri Attar Singh and Shri Guizari Lal Chopra conspired to prepare an appeal to the voters of the constituency. A board was prepared containing the appeal and also the portrait of Durga Mata seated on a Lion which is a deity worship by Hindus of all sections. This board was displayed from 6th June, 1977 to 8th June, 1977 conspicuously at Chowk opposite Hanuman Mandir, Multani Dhanda, Delhi which forms a part of the constituency in question. The appeal was made and the religious symbol was used pursuant to the conspiracy hatched by the respondent his election agent and other agents at the Willingdon Nursing Home which was subscribed by all the three candidates.
(6) The appeal made in the said board is. reproduced in Para 10 of the election petition in Roman, but I will give a free translation : 'An appeal made by Shri Babu Ram Solanki from Willingdon Hospital. * * * * Bed No. 4-A, 1st Floor, Nursing Home. The residents of my constituency, sisters, brothers and the friends. * * * * As you are aware of the fact that on 5-6-197? the workers of the Janata Party made a murderous assault on me an,d my other companions with bricks, stones and bottles while we were sitting in the Congress Office, situate at Jhandewalan Road, as a result of which many Congress workers including myself sustained grievous injuries. I remember you people very much while lying on the hospital bed. I would have come personally to you people at your door step in order to make an appeal for casting your vote in my favor, but I am helpless as I have been advised not to move and speak for a period of 21 days. You are to fight my election. You are to represent me and my success is your success. You are also requested to elect Shri Purshotam Lal Wason from Ram Nagar constituency as a candidate for Municipal Corporation, and Shri Leela Ram Anand from Qadam Sharif constituency. 'Jai Mata Di' The general public as also the workers of Ram Nagar and Qadam Sharif are requested that a 'Vishal Bhagwati Jagaran' would be held at this place if Shri Babu Ram Solanki and his companions are declared elected. Photo Durga Mata. Lying pose of Babu Ram Solanki.'
(7) It is then alleged that the picture of Durga Mata, a Hindu deity seated on a lion which is widely and universally worshipped by all sections of Hindus was depicted in the said board to solicit votes for the respondent and two other Municipal Wards candidates; that the use of religious symbol comprising Durga Mata seated on a lion is considered by all Hindus in the highest esteem was made by the respondent for the furtherance of his election prospects; that the respondent and his election agent and his other agents acting with their consent committed all the corrupt practices falling under Section 123(3) of the Act and that the respondent is guilty of commission of the said corrupt practices by himself and by his agents.
(8) The respondent has taken the extreme position that no such board was displayed. The written statement is a total denial of the material allegations in the election petition. It is denied that the respondent Shri Attar Singh or Shri Guizari Lal Chopra conspired to prepare any appeal to the voters of the constituency. It is denied that Shri Attar Singh was the election agent of the respondent. It has also been denied that any board was prepared containing an appeal and the portrait of Durga Mata as alleged. The respondent denied that any bourd was displayed conspicuously or otherwise in the Chowk opposite Hanuman Mandir, Multani Dhanda, Delhi or at any other place by the respondent or by any other person with his consent. The respondent further denied that any appeal was made and areligious symbol was used pursuant to any conspiracy or otherwise. It was also denied that any propaganda was carried out jointly or severally by the Municipal Candidates, namely, S/Shri Leela Ram Anand and Purshotam Lal Wason.
(9) One of the preliminary objections also raised in the written statement is that the election petition does not comply with the requirements of Section 83 of the Act inasmuch as it does not contain a concise statement of material facts on which the petitioner relies and does not state forthwith full particulars of the corrupt practice alleged by the petitioner including as full a statement as possible of the parties alleged to have committed the corrupt practice and the date and place of the commission of that corrupt practice. As the particulars of the date and place of the commission of the corrupt practice are detailed in the election petition, I framed a preliminary issue on October 28, 1977 to the effect whether the election petition sets forth full particulars of the persons who are alleged to have committed the corrupt practice with the consent of the respondent and/or his election agents, and if not, to what effect. The names of the person using and/or appealing to religious symbol was considered by me to be a material fact to formulate a complete cause of action for corrupt practice. At the time of arguments on the preliminary issues on 5th December, 1977, Shri R. P. Bansal, learned counsel for the election petitioner rightly conceded before me that the names of the persons using and/or appealing to the religious symbol have to be incorporated in the election petition but his contention was that they have been so given. I found that particulars of the persons have been given to the extent necessary for ensuring a fair and effective trial of the petition. 'The other persons' had been left vague in the election petition but Mr. Bansal confined the commission of corrupt practice by the respondent his election agent Shri O.P.Trehan and other agents, namely, S/Shri Leela Ram Anand Purshotam Lal Wason, Attar Singh and Gulzari Lal Chopra. The names of these persons except Shri O. P. Trehan had been disclosed and particularised in the election petition itself but the name of the election agent was not given and had only been given in the replication. As the commission of corrupt practice by the election agent was pleaded in the election petition itself, I could have called upon the petitioner to amplify the 'election agent' by giving the name of the election agent, but since the name has been particularised in the replication and was already on the record, calling any further information was an empty formality. I, thereforee, directed that the parties will go to trial on the following issues :--
1. Whether the respondent is guilty of the commission of the corrupt practice of the use of and/or appeal to religious symbol, himself, and/or by his election agent Shri 0m Prakash Trehan, and/or by his agents S/Shri Leela Ram Anand, Purshotam Lal Wason, Attar Singh and/or Guizari Lal Chopra with the consent of the respondent or his election agent
2.Whether the result of the election in so far as it concerns the returned candidate has been materially affected by such corrupt practice
Issue No. 1
(10) The charge against the respondent is that the board of the language contained in para 10 of the election petition containing the portrait of Durga Mata seated on a lion and showing the respondent in a lying pose on a hospital bed was displayed during the elections. The photographic prints of the board are Ext. P. W. 8/3 and Ext. P.W. 8/4. The free translation of the language contained in the board has already been reproduced by me in the earlier part of the judgment. The respondent has taken the extreme position that no such board was ever displayed. The first question that arises for consideration is (assuming that such a board was displayed) does that consitute the use of and/or appeal to a religious symbol for the furtherance of the prospects of the election of the respondent or for prejudicially affecting the election of any candidate. Use of and/or appeal to religious symbol for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate is deemed to be a corrupt practice as provided in Section 123(3) of the Act which reads as follows:- '123. Corrupt practices :-The following shall be deemed to be corrupt practices for the purposes of this Act :- (3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election. agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols. or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'
(11) The first part of the appeal made by the respondent makes reference to the murderous assault on 5th June, 1977 on the respondent and his companions with bricks, stones and bottles by the workers of the Janata Party. This is only a criticism of the misdeeds of the Janata Party and its workers, even if the assault was made by them. Section 123(3) of the Act prohibits an appeal to vote or refrain from voting on account of religion, race, caste, and community. It does not prohibit appeal to vote on the ground of misdeeds or supposed misdeeds of a party. The first part of the appeal by itself does not amount to a corrupt practice.
(12) The second part is the appeal in conjunction with the pictorial part of Durga Mata seated on a lion. With the pictorial part, the words 'Jai Mata Di' have been used. Thereafter the general public as also the workers of Ram Nagar and Qadam Shariff are requested that a 'Vishal Bhagwati Jagaran' would be held at that place if Shri Babu Ram Solanki and his companions are declared elected. Two questions would arise in connection with this:-
(1)Whether the symbol used has any .special religious significance. If Durga Mata seated on a lion has no religious significance, the use in the manner will not convert that use into a use of a religious symbol.
(2)Whether its inscription on the board which was displayed amounts to the use of or appeal to religious symbol.
(13) Before dealing with the evidence, I may refer to the two decisions of the Supreme Court and one of this Court as to the meaning of religious symbol. In Jagdev Singh Sidhanti v. Pratap Singh Daulta and others. : 6SCR750 , their lordships of the Supreme Court considered the question whether 'Om' flag could be regarded as a religious symbol. Their lordships of the Supreme court said that the word 'Om' was respected by the Hindus generally and had a special significance in the Hindus scriptures. Their Lordshops observed-
'BUTit is difficult to regard 'Om' which is a preliminary to an incantation or to religious books as having religious significance, 'Om' it may be admitted is regarded as having high spiritual or mystical efficacy : it is used at the commencement of 'the recitations of religious prayers. But the attribute of spiritual significance will not necessarily impart to its use on a flag the character of a religious symbol in the context in which the expression religious symbol occurs in the section with which we are concerned. A symbol stands for or represents something material or abstract in order to be a religious symbol, there must be a visible representation of a thing or concept which is religious. To 'Om' high spiritual of mystical efficacy is undoubtedly ascribed; but its use on a flag does not symbolise religion, or anything religious.'
(14) In Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and others, : 1SCR712 the question raised was whether 'Dhruva Star' was a religious symbol. While holding that 'Dhruva Star' had no religious significance and its use in the manner made would not convert that use into use of a religious symbol, their lordships observed:-
'THEbasic concept of Hindu religion is that the supreme being is in every 'inanimate' object, plant, creature or person i.e. in the entire creation and that the entire creation is within the Supreme Being. If thereforee, according to the fundamental concept of Hindu religion. God or Divinity is the reality or the substance of everything that exists, it would not be possible to say that any particular object is a symbol of the Hindu religion. It is true that various deities in the Hindu pantheon are associated with some specific objects, birds or animals. Thus, for example, Shiva is associated with a trident and a coiled cobra round his neck ; Vishnu is associated with the cobra 'Shesha on which he reclines as upon a bed; the eagle is associated with Vishnu as his vehicle ; the goddess Lakshmi is associated with lotus upon which she stands and so on and so forth.'
(15) In Election Petition No. 1 of 1967, Amar Nath Gupta v. Ram Gopal Shatwata, decided 22nd March, 1968 (3) S. K. Kapur, J. after referring to the law laid down by the Supreme Court observed :-
''from these decisions it emerges that symbol is a visible representation of a thing or concept which is religious. The basic characteristic of the symbol is its figurative quality and the second characteristic may be described as its perceptibility. 'The symbol must have its innate power which implies a power inherent within it that distinguishes it from the mere sign is important in itself. Yet another important characteristic of the symbol is its acceptability and implies that the symbol is socially, rooted and socially supported'.
(16) That takes me to the evidence of the parties about the meaning assigned to the symbol of Durga Mata seated on a lion in Hindu religion. Shri Harbans Lal who was a Janata Party candidate for elections to the Municipal Corporation of Delhi from Ward No. 78 as Public Witness 2 deposes that the portrait of Durga Mata seated on a lion is worshipped by Hindus and is given great respect; that the Hindu voters of the Constituency No. 45 were influenced by this appeal by Shri Babu Ram Solanki; that they considered that Babu Ram Solanki is a great worshipper of Durga Mata and that this not only affected the results of the respondent; but also affected the witness's results in the election; Shri Khem Chand, Public Witness 3 who is a Pujari of Shiv Hanuman Mandir says that Durga Mata has the highest place in the deities of Hindus; that most of the deities derive their power from Durga Mata and all Devis and Devtas pay homage to Durga Mata; that there are nine Devis and out of them Durga Mata is supreme and that there are some sections of Hindu who worship either Ram or Krishana or Hanuman or other deities but all sections of Hindus worship Durga Mata. In the cross-examination, the witness stated that he derived the knowledge from a book known as 'Durga Satpati'. On the request of the counsel for the respondent the witness brought the book called 'Shri Durga Sapt Shati Bhasha Tikka' which is Ext. Public Witness 31. This book, according to the witness, contains the origin of Mata, her deeds for destroying demons, blessing on the Devatas and mode of achieving Shanti (peace) Shri Joginder Nath Kapur, who was the election agent of Shri Chander Bhan Verma, the Janata Party candidate from Ward No. 79 for election to the Municipal Corporation of Delhi as Public Witness 6 states that Durga Mata has a purificative position in Hindus; that Hindus look towards her with respect; that Hindus remember her always whenever they want to commence a job; that the portrait of Durga Mata was displayed with a view to influence voters and to get their votes; and that the Jesuit of the appeal made on the said board was that all the three Janata .Party candidates lost to the Congress Party. Shri Des Raj Bhatia, who was the election agent of the petitioner as Public Witness 7 deposes that in this Kalyug all he Hindus worship Durga Mata as a destroyer of all evils and as a protector of good and that this board had the effect of 'ilting the results of the election. Shri Chander Bhan Verma, the Janata Party candidate from Ward No. 79 as Public Witness 10 says that the religious symbol of the portrait of Durga Mata was shown on the board to influence the Hindu voters in favor of the respondent and other two candidates; that Hindus have great respect and regard for Durga Mata; and that the effect of the display of the board on the Voters in the area was that they told them that they are Nastiks. The petitioner's statement is also to the effect that Durga Mata is held in great esteem in Hindu religion just as 'Ram' and 'Krishna' and that use of the religious symbol comprising Durga Mata seated on a lion was to influence the voters, as a result of which they lost the elections. The respondent does not rebut this evidence at all. Counsel for the respondent directed his cross-examination against Public Witness 2 and Public Witness 3 in this regard
(17) Symbol is the term given to a visible object representing to the mind the semblance of something which is not shown but realised by association with it. In the words of their Lordships of the Supreme Court, a symbol stands for or represents something material or abstract in order to be a religious symbol, there 'must be visible representation of a thing which- is religious. The basic idea of the Hindu religion is the conception of an absolute, all embracing spirit, the Brahma, being the one and only one reality, itself unconditioned, and the original cause and ultimate goal of all individual souls. The ceaseless working of the Absolute spirit, as a creative, conservative, and destructive principle is represented by the divine personalities of Brahma, Vishnu and Siva. At the commencement of their idolatry, the Hindus confined their worship to visible object',, such as the sun, the moon, the stars and the elements. At the establishment, of,idolatry in India,. Trimurti originated. The Hindus understand .by the word Trimurti the three principal divinities whom they acknowledge i.e. Brahma, Vishnu and Siva. Trimurti proper signifies the three powers viz, Creation. the 'special attribute of Brahma, Preservation, the attributes of Vishnu and Destruction, the attributes of Siva. They are also worshipped separately and receive the homage of the devotees. From these there sprung a multitude of others and he Hindus went on so as to deify other gods and goddesses. Various deities in the- Hindu pantheon came to be represented and associated. The vast mapority of Hindus worship the Gods Vishnu and Siva with their wives. Then each of the principal gods is supposed to have associated with him his own particular Shakti, as an indispensable complement enabling him to perform properly his cosmic functions. The Shakti thus came to be worshipped. The divine object of the adoration of the Saktas is Siva's wife in one or other of her numerous forms, benign or terrible. The forms amongst others in which she is worshipped is 'Durga' and 'Kali'. I am not going in an exhaustive narration as Mr. Chawla has not seriously contended that Durga Mata seated on a lion is not a religious symbol. The portrait of Durga Mata seated on a lion-is a visible representation. The unrebutted oral testimony is that Durga Mata is venerated by Hindus of all sections. The idols of Durga Mata find place in all temples/Mandirs. The symbol is thus socially rooted and socially supported. The symbol represents the Shakti-the power and satisfies the test laid down by the Supreme Court to make it a religious symbol. Durga Mata seated on a lion is respected and held in high esteem and her qualities and deeds as perceived by the Hindus amongst electorates are bound to arouse the religious sentiments. The use of and an appeal to this religious symbol tends to arouse religious sentiments which is bound to further the prospects of election thus transgrassing Section 123(3) of the Act.
(18) The next question is whether its inscription on the board amounts to the use of or an appeal to religious symbol. The symbol standing by itself may not be an appeal in the name of religion but when used in the manner on the board will amount to the use of or an appeal to religious symbol for furtherance of the prospects art the election. I do not find any difficulty in reading into the language of the appeal and the promise of the 'Vishal Bhagwati Jagaran' in case of success, that the religious symbol, if displayed, was for the furtherance of the prospects of election of the respondent. The unrebutted oral testimony is that the use and/or appeal titled the election results in favor of the respondent. The overall effect of the religious symbol is to be considered in the light of the appeal made by the respondent from bed No. 4-A, First Floor, Nursing Home of the Willingdon Hospital and his address to the sisters, brothers, friends and residents of the constituency. The respondent states that he would have come personally to the people at their door step in order to make an appeal for casting their vote in his favor but he is helpless as he has been advised not to move. The electorates of the constituency are requested to fight the respondent's election as they are to represent the respondent and his success is their success. The greetings to the electors are given by the words 'Jai Mata Di'. Thereafter there is a promise of a 'Vishal Bhagwati Jagaran' if the respondent and his two companions are declared elected. By the promise of 'Vishal Bhagwati Jagaran' the electors are clearly told that the blessings of Durga Mata would be invoked if they make the respondent and his companions successful. A referance to a deity venerated in Hindu religion and the promise of 'Vishal Bhagwati Jagaran' in case of success necessarily amounts to an appeal to the religious sentiments of the electorates. The electors are clearly told in unequivocal terms that they will receive the blessing of the deity portrayed at the Jagaran when the three candidates are declared elected. In other words, it is an appeal to the religious sentiments by the use of portrait for furtherance of the prospects of the election.
(19) That takes me to the' consideration of contemporaneous documentary evidence and oral evidence on the record about the factum or otherwise of display of the board. Actual place of user of the appeal and the portrait of Durga Mata seated on a lion is alleged to be on a board displayed conspicuously on the Chowk opposite to Hanuman Mandir, Multani Dhanda which forms part of the constituency in question. It is averred in the election petition that ''a report about making of the appeal and use of religious symbol by the respondent and his election agents and other agents was made to the police also'. The petitioner as Public Witness 13 deposes that he lodged a complaint with the police about the display of the board by the respondent; that the complaint was lodged on 7th of June, 1977; that when the delivered the complaint to the in charge Police post, he was told that this is not a cognizable offence and that the was also told that the officer-in-charge will, However, make enquiries. In the cross-examination the petitioner states that he handed over the complaint to Shri B. K. Gupta, S. 1. personally at about 7.45 P.M. or 8.00 P.M. Shri B. K. Gupta is produced as Public Witness 5 who deposes that a complaint was filed in Police Post Nabi Karim on 7th June, 1977 at 8.00 P.M. by Shri Mohan Lal Indoria and it was received by him and that Ex. Public Witness 4/1 19 that complaint, In cross examination he states that he went to the spot immediately after he received the complaint from the petitioner and did not find any board displayed on Chowk Hanuman Mandir, Multani Dhanda. This statement was against the case of the petitioner about the display of the board till 8th June, 1977. The petitioner, thereforee, before She close of his evidence moved an application, being I.A. 721 of 1978, for a direction for production of the Roznamcha of the police post Nabi Karim containing the movements and relevant entries for 7th June, 1977 from Shri Krishan Lal S. I. who was summoned by the respondent as a witness for 20th February, 1978. On the statement of the counsel for the respondent that he is not tendering Shri Krishan Lal S. I. as his own witness as Shri Krishan Lal had already appeared as Public Witness 4, I considered it a fit case to exercise my discretion under Order 18 rule 17 of the Code of Civil Procedure and recalled P.W. 4 along with the Roznamcha of police post Nabi Karim relating to 7th June, 1977. On recall Public Witness 4 says that the departure of Shri B. K. Gupta S. I. along with various officials is shown at 6.45 P.M. in connection with :he arrangement for a public meeting at Jhandewalan and the return is shown at 1.10 A.M. on the midnight of 7th and 8th June, 1977. It is thus clear that Shri B. K. Gupta S. I. had not visited the spot on 7th June, 1977 at 8 P.M. or immediately thereafter as otherwise an entry to that effect would have existed in. the Roznamcha. But then he was also not at the Police Post Nabi Karim to receive the complaint from the petitioner. The complaint contains an endorsement of its first page to the effect 'received at 8 P.M. sd/- B. K. Gupta S. 1.7-6-77' which is obviously a fabrication.
(20) The complaint Ext. Public Witness 4/1 contains an endorsement of Shri B. K. Gupta S.I. on a separate page in these terms.
'Ipersonally visited the spot as mentioned in the attached application at the same lime, but there was no board like this photo pitched there'.
the prayer made in the complaint dated 7th June, 1977 was that the objectionable board should be got removed immediately and the objectionable board should be taken into police custody. It seems that Shri B. K. Gupta was not prepared to oblige the petitioner to the extent desired by the petitioner, as the board was never taken into the police custody, Shri B. K. Gupta could not give his report that the board was being displayed on 7th June, 1977 at 8 P.M. or soon thereafter and yet he neglected or failed to take it into the police custody. Entries could not be made later in the Roznamcha which is a police record maintained in the regular course of its business, to the effect that the offending board was taken into police custody. Shri B. K. Gupta, thereforee, had no option but to report that there was no board like the photo pitched at the site. If the complaint had been received in the normal course of the duties Shri B. K. Gupta, it is probable that he would have ensured that its entry was being made there and then in the complaint register maintained by the police post Nabi Karim. The complaint register may not be a register required to be maintained under the Punjab Police Rules which are applicable to Delhi, but is a register which is maintained in the normal course of business by a police post. In the cross-examination Mr. Gupta states that he gave the complaint to the Munshi the next day, but did not check the comolaint register to ascertain whether this complaint was in fact entered in the complaint register or not. He is avoiding the question which may be asked about the entries in the complaint register. It is clear that the complaint and the report Ext. Public Witness 4/1 is a forgery not only on account of the absence of the entries of the visit in the Roznamcha, but also because of the manner of the entries of the complaint in the complaint register.
(21) The election petition contains an averment that a report about the making of the appeal and use of religious symbol by the respondent was made to the police also. The respondent was served with the notice for 7th of September, 1977 when time was sought for filing the written statement. There is evidence on the record in the statement of the respondent as R.W. 9 that he filed an application dated 26th September, 1977 with the police post Nabi Karim seeking information if any application or a report was made by Shri Mohan Lal Indoria between 6th of June, 1977 to 10th of June, 1977 and if received what action was taken. This application was received by Shri Krishan Lal S.I. who marked it to H.C. Gian Singl. H. C. Gian Singh examined the record and reported that no application or report was received from Shri Mohan Lal Indoria between the period 6th June, 1977 to 10th June, 1977 and as no report was received no action was taken. The original application and the report are Ext. Public Witness 4/2 and was admitted as correct by Shri Krishan Lal S.I. as Public Witness 4. Public Witness 4 also deposes in the cross-examination that he had verified the report as correct, checked up the complaint register in September, 1977 before recording the certificate and then appended his signatures. Public Witness 4 was summoned by the petitioner to produce the complaint of Shri Mohan Lal Indoria dated 7th June, 1977 and also the complaint register dated 7th June, 1977 in which the complaint of Shri Mohan Lal Indoria was entered/lodged but no questions were put in the examination-in-chief by the petitioner relating to entries in the complaint register. In cross-examination Public Witness 4 says that there is no entry of 7th of June, 1977 for filing any such complaint. He says there is an entry in this Register on 8th June, 1977 of filing of the complaint by Shri Mohan Lal Indoria. It was put to the witness that the entry of 8th of June, 1977 is an interpolation in this Register. The witness answers that a doubt was cast in his mind by this entry made on 8th June, 1977 and he, thereforee, reported this matter to the senior officers for investigation. The witness is categorical that he did not find any entry of the filing of the complaint by the petitioner in the register from 6th June, 1977 to 10th June, 1977 when he recorded the certificate on 26th September, 1977. There is a running Seriall number of complaints entered in the register. On 5th June, 1977 the entries are at Seriall Nos. 421, 422, 423, 424 and 425. There is no entry on 6th June, 1977 and 7th June, 1977. The next entry is on 8th June, 1977. The disputed entry is the first entry on the next page under 8th June, 1977. The dates are given in one line. The entries on that date are given below the line of the date. There are no entries made against the line where the date is written. On 8th June, 1977, the disputed entry is '826', The next Seriall number 426 is changed to 426-A. The Seriall number entered on the original complaint is '826'. The entry '826' in the register reads as :
'826dated 6-9-1977/6611/PG dated 1-9-1977, Reference No. 120, S.D.P.O./O.R. 31st August, 1977 received from the Scheduled Castes Welfare Association, Doctor Ambedkar Bhawan, New Delhi.'
Seriall No. 826 could not appear between Seriall No. 425 and 426-A. It could not be entered on 7th June, 1977 as there was no entry in the register on 6th June, 1977 and 7th June, 1977 and the entries on 5th June, 1977 are to the extreme end of the page. The Seriall number under date 8th June, 1977 had already proceeded from 426 onwards. 426 is changed to 426-A and the disputed entry is made on the top of the page. Public Witness 4 further states that he found the complaint and the report in the records in November or December 1977 when he reported the matter to the senior officers for further investigation. The manner in which the entry exists and is explained by Public Witness 4 leaves no manner of doubt in my mind that the entry of 8th June. 1977 about the complaint of Shri Mohan Lal Indoria containing a request relating to a board of Congress Party, is an interpolation in the register made sometime after September, 1977. The manner of the entries as stated by Public Witness 4 in the cross-examination are in accord with the original register which has been kept on the record. I find no reason to disbelieve Public Witness 4. If his evidence is accepted then it condusively establishes that no complaint was filed on 7th June, 1977 by the petitioner.
(22) Seeing this material on the record, the counsel for the petitioner made a suggestion to the respondent in the cross-examination that the complaint was entered in the police records and he managed to have those records changed so as to cause a suspicion about the filing of the complaint on 7th June, 1977 and that the respondent got a false statement recorded through Shri B. K. Gupta about his visit to Chowk Hanuman Mandir. This is catching at a straw. The counsel is himself destroying the testimony of Public Witness 5 on which the petitioner wanted to rely for contemporaneous documentary evidence of the complaint and the photographic print of the board attached with that complaint. The petitioner filed his. list of witnesses on 13th December, 1977 and included the name of in charge, Police Post Nabi Karim to appear along with the complaint and complaint register. The trial of the election petition was fixed with effect from 13th February, 1978. The respondent filed the list of witnesses dated 22nd December, 1977 and had included the name of Shri Krishan Lal Sub Inspector, in charge Police Post, Nabi Karim, as well as the name of Shri Gian Singh Head Constable, Police Post Nabi Karim. If the petitioner had any desire to question the authenticity of the complaint register, he could have chosen not to produce Shri Krishan Lal as his own witness, and in that case could have availed of an opportunity of cross-examining Shri Krishan Lal when he appeared as respondent's witness. The petitioner, thereforee, cannot take any advantage by merely suggesting the respondent that the police records have been changed. Cogent and positive evidence is required to rebut the presumption of the maintenance of the records in due course of business. For the above reasons, I hold that the complaint Ex. Public Witness - 4/1 was not lodged in the normal course of business on 7th June, 1977 and was later fabricated and kept in the records of the police post Nabi Karim.
(23) But one has to bear in mind that the use of fabricated written evidence by a party does not relieve the Court from the duty of examining the whole of the evidence adduced on both sides and of deciding the truth of the matters in issue. It may be that the process was employed to support a just cause. As the decision is to be based solely on oral testimony the task of extracting the truth is very difficult.
(24) I may recall that the case of the petitioner is that the respondent managed to get himself admitted in the Willingdon Nursing Home, New Delhi on the basis of a false allegation that he was given injuries by the workers of the Janata Party: that getting admission in the Willingdon Nursing Home by the respondent was an election stunt ; that the respondent his election agents, Shri Attar Singh and Shri Gulzari Lal Chopra conspired to prepare an appeal to the voters of the constituency and that a board was prepared containing the appeal and also the portrait of Durga Mata seated on a lion which is a deity worshipped by the Hindus of all sections. The venue of the hatching of the conspiracy is alleged to be at Willingdon Nursing Home. As a rightly argued by Mr. Chawla, the evidence of the conspiracy depends upon the slender threat of Shri Dharam Pal, Public Witness 9. In the examination- in-chief he deposes that the respondent is his Bhua's son; that he came to know on 5th June, 1977 that there was a clash between the workers of Janata Party and Shri Babu Ram Solanki and his workers in which Shri Babu Ram Solanki was injured ; that he went to see the respondent in Willingdon Hospital ; that at that time he found Sarvashri Attar Singh, O. P. Trehan and Guizari Lal Chopra sitting with Shri Babu Ram Solanki ; that at that time in his presence Shri Babu Ram Solanki told Sarvashri Attar Singh, O. P. Trehan and Guizari Lal Chopra to have .in appeal issued on his behalf and also promising a Jagaran of Durga Mata and that it was also suggested that a portrait of Durga Mata be made and the board should be affixed in some chowk of the area of the constituency. The story of conspiracy put forward by Shri Dharam Pal does not inspire confidence having regard to the improbabilities therein discussed hereinafter. In the cross-examination the witness states that Shri Babu Ram Solanki is the son of his mother's sister's husband's sister. The relationship of the witness with the respondent is too remote to compel the witness to go to the Willingdon Hospital to ask the welfare of the respondent. The witness admits that his mother had four sisters yet he is unable to give the number of sister's of his Mausaus or their names. The witness admits that he was not told the number of the bed or name of the ward in which the respondent was admitted in the hospital. The possibility of finding the respondent by chance is meagre. The witness states that he went 'to the Emergency during the visiting hours and he saw the respondent lying on the bed. It is common knowledge that in Emergency the visitors are not allowed. It is highly improbable that the witness would have been allowed entry in the Emergency ward unchecked- The witness further states that three named persons were asking the welfare of the respondent and the talk commenced in the presence of the witness. The conspiracies are always hatched in secrecy and it is hard to believe that the talk commenced in the presence of the witness. This visit by the witness is the solitary visit. The witness admits that he had not visited any relations in the hospital to ask about their welfare either after 5th of June, 1977 till date or even before that date except on one occasion when the witness visited the respondent in the hospital when the respondent had a paralytic attack. The respondent denies having the paralytic attack. The hatching of the conspiracy is alleged in the election petition to be in the Willingdon Nursing Home whereas the witness visits the respondent in the 'Emergency'. This change in the stand of the petitioner had to be resorted to as the respondent was removed from the Emergency of the Willingdon Hospital to a special ward in Nursing Home on 6th June, 1977, sometime after 9.45 A.M. as is evident from the history sheet Ext. Public Witness 1/1.
(25) Shri Dharam Pal is not prepared to speak truth on matters on which there is no dispute. The name of the witness was included in the list of witnessed dated 13th December, 1977. The witness wanted to sound as an independent witness and deposed that it was only 5 to 6 days back that he was told by the petitioner that his name has been given as a witness, and he was brought in the Court only that day (15th February, 1978). The witness was seen in the Court room when the evidence of the respondent was being recorded and even on the first day when the arguments were being addressed and I brought this fact to the notice of the counsel for the petitioner when he laid stress on the independency of the testimony. The witness states in one breath that he had no interest in the elections but when confronted he had to admit that he was interested from the childhood and, thereforee, fought elections as a candidate from Ram Nagar constituency in the bye-elections of the Metropolitan Council held on the death of Shri Satya Prakash Makan. As against this testimony of Public Witness 9, Shri Gulzari Lal Chopra and Shri O. P. Trehan have both appeared (besides the respondent) and stated on oath that they never visited the respondent in Willingdon Hospital on 5th June, 1977 or thereafter. The hatching of the conspiracy is, thereforee not established on the record. The respondent was admitted in the Willingdon Hospital at 11.05 A:M. on 5th June, 1977. The display of the board could be a corrupt practice if the appeal was by the respondent or his agent or by any other person with the consent of the respondent or his election agent. Shri O. P. Trehan is nominated as an, Election agent on 9th June, 1977 as is clear from the testimony of Shri N. Diwakar, Returning Officer. The nomination papers are Exts. R.W. 11and R.W. 12. Under section 40 of the Act a candidate at an election may appoint in the prescribed manner any one person to be his election agent and when any such appointment is made, notice of the appointment hall be given in the prescribed manner to the Returning Officer. Rule 8 of the Conduct of Election Rules, 1961 prescribes the manner of appointment and the form to be used. Form No. 8 shows that the appointment of the election agent is from the day the nomination form is signed by the candidate. Shri O. P. Trehan could not be the election agent before 9th June, 1977. The respondent could be made responsible for the acts and deeds of Shri O. P. Trehan and other named persons only if some bond in the nature of agency with the consent had been established between them and the act of display of the board which it is proposed to attribute to the respondent as a corrupt practice, mast be in furtherance of the common design. For this there is no evidence on the record except the statement of Shri Dharam Pal which has already been discarded by me.
(26) The other oral evidence of the petitioner consists of the statement of Shri Joginder Nath Kapur, Public Witness 6, who was the in charge of election to Ward No. 79 of the Municipal Corporation of Delhi from where Shri Chander Bhan Verma was contesting the elections. He professes to be a witness along with Shri Des Raj Bhatia to the affixation of the board displaying the portrait of Durga Mata seated on a lion and the appeal of Shri Babu Ram Solanki. He says he saw Sarvashri Gulzari Lal Chopra, Leela Ram Anand, Purshotam Lal Wason,, Om Prakash Trehan and Attar Singh amongst the Congress workers who were affixing the board on 6th June, 1977 at 8.00 A.M. He states that he brought a photographer at about 9.15 A.M. and got the board photographed through Shri Vijay Babu Shri Des Raj Bhatia, Public Witness 6 who was the election agent of the petitioner, corroborates P.W. 6 to the affixation of the board by the named persons. Shri Hukum Chand, Public Witness 11 who is admittedly running a shop located in the building of Hanuman Mandir, also deposes that he saw on, 6th June, 1977 at 8 or 8.30 A.M. the affixation of the board by the two candidates for election to the Municipal Corporation, namely, Shri Leela Ram Anand and Shri Purshotam Lal Wason and the agent of the respondent namely. Shri Om Prakash Trehan and other persons, namely, Shri Attar Singh and Shri Gulzari Lal Chopra. Shri Vasu Dev Arya, Public Witness 12 who is a resident of the area also says that the board was got affixed by Sarvashri Gulzari Lal Chopra, Leela Ram Anand, Purshotam Lal Wason and others and he saw the board for the first time on 6th June, 1977 at about 8 or 8.15 A.M. when it was being affixed at the spot. Shri Harbans Lal Public Witness 2 who was the Janata candidate from Ward No. 78, Shri Chander Bhan Verma P.W. 10, who was the Janata candidate from ward No. 79 and the petitioner each say that the board was displayed from 6th June, 1977 to 8th June, 1977 in front of Chowk opposite Hanuman Mandir within constituency No. 45. Each of these witnesses recall with fair accuracy the language of the appeal contained on the board, the portrait of Durga Mata seated on a lion, the promise of 'Vishal Bhagwati Jagaran' in case of success of the respondent and his two companions and the lying pose of the respondent as on a hospital bed. Most of the witnesses identify photographic prints Exts. Public Witness 8/3 and Public Witness 8/4 as the photograph of the board that was displayed at Chowk opposite Hanuman Mandir.
(27) Mr. D. D. Chawla in his cross-examination of the petitioner's witnesses attempted to shake the credit of the witnesses by bringing out interest and partisanship. Except Public Witness 11 and Public Witness 12, the other witnesses are those whom the Court would ordinarily desire to hear on the issue and their testimony cannot be discarded merely on account of interest. Public Witness Ii and Public Witness 12 are from the locality and would in normal circumstances know of the happenings in the locality. Mr. Chawla brought out in limelight the variations an,d minor discrepancies in the statement of witnesses. I have carefully considered the entire evidence. There are no discrepancies in the material portions of the evidence. There are variations but only in unimportant details. In examining oral evidence with a view to test whether the several witnesses who bear testimony on the same facts are worthy of credit regard is to be had to the deposition on material facts. I find they substantially agree to the display of the board from about 8 A.M. on, 6th June, 1977 to 8th June, 1977 at Chowk, opposite Hanuman Mandir, and to the language used in the appeal to the voters. They also agree to the use of religious symbol of Durga Mata, seated on a lion and to the promise of 'Vishal Bhagwati Jagaeran' at that very spot in case of success of the three candidates. The statement of Public Witness Ii and Public Witness 12 on the material fact of the display of the board an,d to the language contained in the statement is not weakened by the mode in which they speak as is argued by Mr. Chawla. The minds of human beings are so differently constituted and so much influenced by differences of experience that the same facts viewed may produce in different individuals very different decree of belief. Then the minor discrepancy may arise because of failure to recall with accuracy the events deposed because of extent of interest. The minor discrepancies are bound to occur in human testimony and mathematical precision, in the statement of witnesses cannot be expected. Mr. Chawla attempted to shake the credit of witnesses and at places there are slips, but on material particulars of the display of the board none of the witnesses left the ground.
(28) In rebuttal the respondent produced Shri Gulzari Lal Chopra as R.W. 2, Shri O. P. Trehan the election agent of the respondent as R.W. 6, Shri Purshotam Lal Wason the Congress candidate from Ward No. 78 as R.W. 7, Shri Leela Ram Anand the Congress candidate from Ward No. 79 as R.W. 8, Shri Ramesh Chand R.W. 4 and Shri Amarjit Mugo R.W. 5 the shopkeeper and resident respectively of the locality, besides himself entering in the witness box. Their stand on oath is again of complete denial. Identical is the criticism of Shri R. P. Bansal on the testimony of the respondent's witnesses. The Court would like to bear all those persons who have been named by the petitioner and his witnesses responsible for displaying the board. This evidence cannot be discarded on account of interest, personal in case of Shri Purshotam Lal Wason and Shri Leela Ram Anand.
(29) There is thus direct conflict of oral testimony. The witnesses of the petitioner swearing point blank to the display of the board containing an appeal from Shri Babu Ram Solanki and the use of or appeal to religious symbol of Durga Mata scated on a lion for the furtherance of the prospects of the election of the respondent and his two companions ; the witnesses of the respondent swearing with equal distinctness to the non-existence of any such display. The evidence is diametrically opposed in this material fact. The discrediting circumstances of the oral testimony of the petitioner are these :
(30) Firstly, it is the use of the fabricated written evidence by the petitioner in the complaint dated 7th June, 1977 and the report Ext. P.W. 4/1. The complaint bears the signatures of the petitioner. The fabricated material is clearly established to be the contrivance of the petitioner raising a fair presumption against the whole of the evidence produced by the petitioner. Secondly, the foundation of the petitioner's story that the conspiracy was hatched at Willingdon Nursing Home has crumbled in the light of discussion on the testimony of Shri Dharam Pal. Thirdly, the petitioner had to make a shift in the venue of the hatching of the conspiracy from Willingdon Nursing Home to Emergency as Public Witness 1 produced the history sheet Ext. Public Witness 1/1, wherein it was noted that the respondent was in, Emergency on 6th June, 1977. The shifting stand discredits the testimony. Fourthly, the credibility of the oral testimony when tested intrinsically does not stand the test. Shri Ram Niwas, Public Witness 1, record clerk, Willingdon Hospital was produced to depose about the admission of the respondent at 11.05 A.M. on 5th June, 1977 and to give particulars of the injuries received. He also produced the original case sheet of the respondent which is Ext. Public Witness 1/1 (marked collectively). Ext Public Witness 1/1, shows that the respondent was brought to Emergency at 11.05 A.M. on 5th June, 1977 and after examination was ordered to be admitted at 11.45 A.M. to Dr. N. Singh's unit. The respondent was seen in Emergency by Dr. V. S. Wadhwa at 9.20 A.M. on 6th June, 1977 when he directed repeat X-ray Chest. Then there is a writing marked A to A on Ext. Public Witness 1/1 in the hand of the respondent reading: 'Requested Sir, I want to have my treatment done in Spl. Ward in, Nursing Home. I am willing to pay for expenses. sd/- Babu Ram Solanki Ex. M. C. 6-6-1977 9.45 A.M.' There are orders dated 6th June, 1977 on the history sheet purported to have been made by Dr. Wadhwa reading 'transferred to spl. Wd/4-A N.N.H.A.' It means transferred to special ward-4A, New Nursing Home. The respondent was thus transferred sometime after 9.45 A.M. on 6th June, 1977 from Emergency to the Special Ward, Bed No. 4A of the Nursing Home. The witnesses of the petitioner to the affixation of the board say that it was being fixed at about 8 A.M. on 6th June, 1977 and Exts. Public Witness 8/3 and Public Witness 8/4 are the photographic prints of that board. The photographic prints read in Hindi 'Bed No. 4-A Pahly Manzil Nursing Home'. The photographs are stated to have been taken by Shri Vijay Kumar Public Witness 8 at 9 or 9.30 A.M. on 6th June, 1977. It is impossible to believe that the board could contain the bed number as 4-A of the Nursing Home, when it was allotted after 9.45 A.M. on 6th June, 1977, when the respondent was transferred to the Nursing Home. It is not a difference of merely two hours which could be attributed to the failure of the memory of the witnesses. The admission to the Nursing Home, the allotment of the bed number, the communication to the named conspirators, the obtaining of the services of the painter, the time consumed in the painting of the board and then the arrangement for its affixation at the spot would have taken considerable time; if it was done by the agents of the respondent. The only inference that can be drawn as a result of this intrinsic test is that the board was not affixed at about 8 A.M. on 6th June, 1977 and it is falsely deposed by the petitioner's witnesses. 'Falsus in uno, falsus in omnibus' (false in one particular false in all). This doctrine is not mandatory rule of evidence but involves the question of weight of evidence which a Court may apply in a given set of circumstances. But the falsehood in one material particular is so glaring as utterly to destroy confidence in the witnesses altogether. Fifthly, the credibility of the oral testimony of the petitioner when tested extrinsically with the human behavior does not also stand the test. The petitioner though admits that the longer the board kept displayed at the spot, the worst effect it will have on his election ; that when he saw the board on 6th June, 1977 at about 1.30 or 2 P.M. he was also aware of the fact that thousands of people pass through this way and the board will influence those persons and that he was aware of the fact that the display of the portrait of Durga Mata was a corrupt practice, yet the petitioner does not send any telegram or lodge any complaint with the Chief Election Commissioner, the Chief Electoral Officer or the Returning Officer. The petitioner even does not go to the Janata Party offices to complain about the board containing the portrait of Durga Mata. The petitioner then admits that the matter could be reported orally to a police station or to a police post, but did not lodge the oral complaint on the flimsy plea that the Munshis there hesitate in writing oral complaints. If the petitioner wanted to file a written complaint it could have been done on 6th June, 1977 itself. The Explanationn for delay in lodging the report because of the late supply of a photographic print is not convincing. Shri Vijay Babu, the photographer admits that the prints could be made ready in 2 to 3 hours, but did not supply because of prestige. This sounds absurd especially when the photographer is a new comer in the profession. A new entrant would be more interested in satisfying the customers needs than standing on false prestige that the customers would think that it is an easy job as deposed. It is not the normal human conduct that the petitioner would not have acted immediately in all directions if the board had in fact been displayed.
(31) Apart from the discrediting circumstances, in civil cases what is required or considered sufficient is preponderance of probability while in election petitions as in criminal cases owing to serious consequences, the persuasion of the commission of corrupt practice must amount to such a moral certaintity as convinces the mind of the Court, as reasonable men beyond all reasonable doubt. The principles of law governing election disputes and especially in regard to the charge of a commission of corrupt practice were restated by their Lordship of the Supreme Court in M. Narayana Rao v. G. Venkata Reddy and others, : 1SCR490 in these words :-
'THATthe charge of commission of corrupt practice has to be proved and established beyond doubt like a criminal charge or a quasi-criminal charge but not exactly in the manner of establishment of the guilt in a criminal prosecution giving the liberty to the accused to keep mum. The charge has to be proved on appraisal of the evidence adduced by both sides especially by the election petitioner. That the election held and results declared on the choice of the voters should not be lightly interfered with or set aside by a court of law. After all, in the holding of a fresh election are involved numerous botherations, tremendous expenses, loss of public time and money and the uncertainty of public representation from a particular constituency. A charge of corrupt practice is easy to level but difficult to prove. If it is sought to be proved only or mainly by oral evidence without there being contemporaneous documents to support it, Court should be very careful in scrutinizing the oral evidence and should not lightly accept it unless the evidence is credible, trustworthy, natural and showing beyond doubt the commission of corrupt practice, as alleged. It must always be borne in mind that the consequences of setting aside of an election on the ground of corrupt parctice are very serious for the candidate concerned as well as others involved in it. A court, thereforee, should reach its conclusion with care and caution taking into consideration the broad probabilities the natural conduct of the persons involved and the special situation in which a corrupt, practice is alleged to have been committed.'
I have examined the testimony of the petitioner in the background of the above principles and detailed the discrediting circumstances. The evidence of the petitioner is not credible and trustworthy to establish the alleged corrupt practice beyond doubt. The petitioner thus fails.
(32) In fairness to the counsel I may note the argument asking me to draw an adverse inference for the non-production of Shri Attar Singh who was a party to the conspiracy- To Shri O. P. Trehan who was produced as R.W. 6, it was not suggested as to who Shri Attar Singh is. ft was only suggested that Shri Gulzari Lal Chopra was the election agent of Shri Leela Ram Anand but R.W. 6 denied the suggestion for want of knowledge. To Shri Purshotam Lal Wason, R.W. 7, a suggestion is put that Shri Gulzari Lal Chopra and Shri Attar Singh were members of the Executive Committee of the Congress Block at the time of last elections and this was denied. To Shri Leela Ram Anand, R.W. 8 the suggestion was not put that Shri Attar Singh is the agent of the witness. R.W. 8 stated that he does not know Shri Attar Singh. To the respondent a suggestion is put that Shri Attar Singh was the election-in-charge of the elections of Shri Leela Ram Anand. The respondent admits that one Shri Attar Singh is one of the voters in the constituency, but he could not say if that Attar Singh is the same person who has been mentioned in the election petition The petitioner himself is not sure as to who this Attar Singh is and how could the respondent establish the identity. On this material, no adverse inference can be drawn against the respondent for the non-production of Shri Attar Singh. Mr. Bansal also wants me to draw adverse inference for the non-production of Shri Lachmi Narain, Shri Ram Lal Aggarwal and Shri Ram Roop. The name of the later two witnesses are included in the list of witnesses dated 22nd December, 1977 of the respondent. Shri Laxmi Narain is the person who got the nomination form of election agent and polling agents signed from the respondent. Shri Ram Lal Aggarwal is having a shop in front of Chowk Hanuman Mandir. Shri Ram Roop lives in a lane which leads to Hanuman Mandir. These three persons are not named by the petitioner or his witnesses and need not be produced by the respondent for denial. Credibility of the version does not depend upon the number of witnesses.
(33) The result of the above discussion is that I hold issue No. 1 against the petitioner.
(34) Issue No. 2. : In view of my findings on issue No. 1, issue No. 2 does not survive for decision.
(35) Issue No. 3.: The result is that the Election Petition is dismissed. I am not allowing costs to the respondent as his testimony is not straightforward. He has deliberately withheld information of facts which are not material and not in dispute.