Kandru Majhi vs Budheswar Majhi

Sankar Prasad Mitra, J.—In this petition the election of the Respondent No. 1 from the 220 Bandwan Assembly Constituency in the district of Purulia, has been challenged. This was a mid-term election which took place on February 9, 1969. The issues raised herein were as follows:

(1) Were the corrupt practices alleged in para. 12 of the petition and in the various sub-paragraphs thereof or any of them committed in the election?

(2) Were such corrupt practices or any of them committed by the Respondent No. 1 or any of his agents or his election agent or by other persons with the consent of the Respondent No. 1 or his election agent as alleged in para. 12 of the petition?

(3) Was the result of the election materially affected (a) by improper reception, refusal, or rejection of votes or (b) by noncompliance with the provisions of the Constitution and the Representation of the People Act, 1951, and Rules and Orders thereunder as alleged in para. 14 of the petition ?

(4) To what relief, if any, is the Petitioner entitled ?

Issue No. (3) was not pressed at all. A few vague allegations were made by the Petitioner when he was on the witness-box; but counsel appearing for him did not advance any arguments in support of this issue. We are, therefore, concerned with issues Nos. (1) and (2) except that the Respondent No. 1 had no election agent. In various sub-paragraphs of para. 12 of the petition numerous allegations of corrupt practices have been made against the Respondent No. 1. Broadly speaking, these are allegations of bribery indulged in by the Respondent No. 1 in various places within his constituency with a view to induce voters either individually or collectively to vote for him. In course of the trial the Petitioner withdrew many of the allegations from time to time. There are also some allegations which were not formally given up but were not proved. The defence of the Respondent No. 1 is a plea of alibi. He has said that he had not visited the places mentioned in para. 12 of the petition at all.

I have, therefore, first to consider whether his plea of alibi can be accepted and, if not, what is the effect thereof. Secondly, most of the persons alleged to have been birded have said to me that at the time they accepted money they did not know that they were committing an offence. In the premises, I have to decide whether their evidence should require corroboration. I intend to dispose of, these two points first before taking up the allegations of corrupt practices on which counsel for the Petitioner ultimately relied.

Budheswar Majhi, the Respondent No. 1, has deposed before this Court that the Congress office at Purulia placed a jeep at his disposal only on February 5, 1969, when he started moving round his constituency on an extensive scale. Since the vehicle could be used by him only for four days, he found it impossible to visit all the principal centers in his constituency. The result was that he did not visit at all the places where he was alleged to have bribed voters either individually or collectively. In Q. 124, Budheswar says that before the evening of February 5 he was carrying on his election work on a bicycle and was also visiting places nearby on foot. In Qs. 980-984 his evidence is that he does not remember the places he had visited before February 5, 1969; but he does remember what had happened after he got the jeep from the Congress office. In Qs. 807-808, his positive evidence is that he used the jeep given to him by the District Congress office on February 6 to 9, 1969. He could not get it earlier. In Qs. 719-732, he gives a list of places which he could not visit at all. He says he did not visit (1) Madhubon, (2) Janijhar, (3) Krishtopur, (4) Radhamohanpur, (5) Bikramdih, (6) Gangamannamodi, (7) Sirka, (8) Dhadka, (9) Kutchia, (10) Akrow and (11) Kumra. Of these eleven villages seven villages have been referred to in the petition as places of alleged commission of corrupt practices. These are (1) Madhubon, (2) Radhamohanpur, (3) Bikramdhi, (4) Gangamannamodi, (5) Sirka, (6) Dhadka and (7) Akrow. He says he tried to visit principally those villages in which the Santhali speaking people live. He is himself a Santhal and the villages he did not visit were those where there were either no Santhali speaking people or a very few of them. His opponent Kandru Majhi, the Petitioner herein, is also a Santhal, but he expected that voters belonging to his community might be ''kind enough'' to vote in his favour. He had only four days time to visit different places in his constituency by jeep. If he had got the vehicle earlier, he would have gone to the places mentioned above. He made representations to the District Congress office to let him have a jeep earlier, but the Congress office could not comply with his request.

It is to be noted that this plea of alibi has not been satisfactorily taken in the written statement of Budheswar Majhi. In para. 4(b) of the written statement he has stated that on February 8, 1969, he was at Manbazar, about 23 miles away from Sikra, Modidih and Gangamanna where, it is alleged, he bribed certain persons on February 8, 1969. In para. 4(f) of the written statement he has denied that a few days before the election he went to Radhamohanpur of Bikramdih; but so far as the other places are concerned, the written statement does not say that he did not visit them at all. The written statement is also silent about the non-availability of the jeep till the evening of February 5, 1969, with the result that he could not visit the villages mentioned in para. 12 of the petition to carry on his election propaganda. Where the defence in an election petition is a plea of alibi, the Court naturally expects that the written statement should specifically bring it out; but the written statement of Budheswar Majhi suffers from the infirmity that the plea of alibi has not. been properly pleaded.

The next point of be noted is that this plea of alibi was not suggested to the Petitioner''s witnesses except as hereinafter stated.

To Kandru Majhi, the Petitioner, it was suggested that on February 8,1969, Budheswar was not present at Tolamudidi in the village Gangamanna. Kandru says that he does not know whether Budheswar was present or not. Bulu Mudi can say so. To Bulu Mudi also the same suggestion was made in Q. 706 and he has denied it. Again in Q. 647 it was suggested to Kandru that on February 8, 1969, Budheswar was present at Manbazar and not at Tolamudidi. In Q. 649 the suggestion to Kandru was that the allegation in para. 12(b) of the petition was untrue, the allegation being that on February 8, 1969, Budheswar Majhi came to the village Gangamanna and gave to Paban Mohato a sum of Rs. 50. Kandru''s answer is that Paban could say whether or not he accepted money. To Paban Mohato there were two suggestions. The first suggestion was that Budheswar did not go to Gangamanna on February 8, 1969, and the second suggestion was that Budheswar did not know Paban at all. Paban has denied both of them. In Q. 651 it was suggested to the Petitioner that the allegation in para. 12(c) of the petition was incorrect. The allegation is that on February 8, 1969, Budheswar went to the village Tolamudidi and paid the sum of Rs. 100 to Bulu Mudi. Kandru has stated that only Bulu Mudi and Ganesh Mudi (in whose presence the money was paid) can speak about the incident. In Q. 784 the suggestion to the Petitioner was that the Respondent No. 1 never went to village Bikramdih a few days before the polling and never met Iswar Mohato there. The Petitioner''s reply is that Iswar Mohato and others would be able to say whether the Congress candidate went there. This suggestion was made to Iswar Mohato in Q. 573 and has been denied by him. Mr. Ajoy Ghose, the Learned Counsel for the Respondent No. 1, has also draft my attention to a few other suggestions, with respect to the plea of alibi, made to different witnesses. To Sambhu Mohato who had spoken of the incidents at village Ankrow the suggestion in Q. 233 was that Budheswar did not know him. There was no suggestion that Budheswar never visited Ankrow. To Lakshman Mohato, another witness on Ankrow, it was suggested that Budheswar did not go to Ankrow three or four days before the election nor did he know Lakshman or Rajani Mohato or meet Lakshman or Rajani or Ashari Mohato (Qs. 638 and 642). The witness has denied the suggestion. Gopal Mohato was a witness on Bikramdih. To him the suggestion was that Budheswar did not visit Bikramdih and Budheswar did not know either Gopal or Iswar Mohato (Qs. 433 and 435). The suggestions were denied. Netai Mohato was a witness on Gangamanna. It was suggested to him that Budheswar did not go to Gangamanna on February 8, 1969, or on any other date in connection with the midterm poll. It was suggested to him that Budheswar did not ask him or Paban Mohato to work for Budheswar or to pay to the voters Re. 1 or Rs. 2 each. It was also suggested to him that Budheswar did not know him at all. The witness has not accepted any of these suggestions: vide Qs. 709 and 711.

Counsel for the Respondent did not invite my attention to any other suggestion made by him or any of his learned colleagues either to the Petitioner or to the Petitioner''s witnesses regarding the plea of alibi. It is apparent that the suggestions that were made were confined to a few places only like Tolamudidi, Gangamanna and Bikramdih and none of the witnesses were confronted with the case of the Respondent No. 1 that owing to non-availability of the jeep earlier or difficulties of conveyance the Respondent No. 1 could not visit many of the important villages in his constituency including those mentioned in para. 12 of the petition. To my mind, this suggestion should have been specifically made to the Petitioner and at least to his material witnesses, particularly in view of the fact that these witnesses were almost invariably speaking of the arrival of Budheswar and others at their respective places by a jeep. The legal consequences of the failure to do so were explained by this Court in A.E.G. Carapiet Vs. A.Y. Derderian, in these words:

The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at the trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on the high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent''s witnesses in turn so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the Plaintiff''s account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and, secondly, because such subsequent testimony has no chance of being tested and corroborated.

In the light of these principles it is evident that the plea of alibi which Budheswar set up on the witness-box should have not only been pleaded with precision in his written statement but also properly suggested to the Petitioner and his witnesses in cross-examination. For reasons best known to the counsel for the Respondent No. 1, however, that was not done in the manner required by, law.

There is one other evidentiary aspect of this matter which may be conveniently disposed of at this stage. In para. 12(b), (c) & (d) of the petition the complaint is that Budheswar visited Ganga-manna, Tolamudidi and Sirka and made payments of - moneys to different persons with the object of inducing voters to vote for him. All these visits had occurred on February 8, 1969. In para. 4(b) of the written statement Budheswar alleges that on February 8, 1969, he was at Manbazar which was about 23 miles away from Sirka, Mudidi and Gangamanna. This is practically the only specific plea of alibi in the written statement of the Respondent No. 1. Let us now examine the oral evidence on this plea. Budheswar has stated that he spent the night of February 7 at Manbazar in the house of a Kaviraj whom he described as ''Dr. Annada'' or ''Annada Babu''. On the 8th morning, after taking tea at Annada Babu''s place, he and three others including Satya Sen started in a jeep and visited Bonmogra, Bisri, Hariduara; Kumari, Kasipur and Bargaria. At Bargaria they took their mid-day meal and thereafter visited Jamtaria and reached Quilapal in the evening and thereafter they returned to the Congress office at Bandwan at about 9 p.m. dropping Satya Sen at Chila. The rest of the party spent the night of February 8 at the Bandwan Congress office (Qs. 138-148). When Budheswar''s attention was specifically drawn to para. 4(b) of the written statement, he has said that on the morning of February 8 he and his party were at Manbazar. He could not explain why he did not mention the names of the other places he had visited on February 8 starting from Manbazar in the morning: vide Qs. 571-581.

I would now examine the evidence of Budheswar''s companion Satya Sen. Satya Sen has also said that they spent the night of February 7 at Manbazar and in the morning of February 8 they left Manbazar and visited various places throughout the day. At night they returned to Bandwan (Qs. 89 and 160). In other words, Satya Sen has more or less corroborated the tour programme of February 8 narrated by Budheswar.

In course of his long depositions, however, Budheswar has given a somewhat different story of his programme of February 8 which the counsel for the Petitioner commented upon. In Qs. 50-53 Budheswar has said that he received a total sum of Rs. 3,500 from his District Congress office. According to Budheswar, the money was paid to him by installments and the last instalment of Rs. 500 was handed over to him on February 8, 1969 (Q. 449). In other words, on February 8, 1969, he had to go to the District Congress office at Purulia to receive this last instalment of Rs. 500. This is a story that contradicts, according to the counsel for the Petitioner, the other story of his tour programme of February 8, 1969.

But let us not worry about these contradictions. It is enough to say that the specific plea of alibi taken in para. 4(b) of the written statement has not been proved by Budheswar on the witness-box. In his oral testimony he did not stick to his statement that he was at Manbazar on February 8, 1969, except in the morning.

We have now to examine a far more serious matter. Budheswar''s principal defence is that owing to non-availability of the jeep, except for the last few days before the election, he could not visit all the villages in his constituency including those specified in para. 12 of the petition. Budheswar''s Return of election expenses filed with the appropriate authority tells, however, a different story. A copy of this Return is Ex. H in this proceeding. From item No. (3) of Ex. H it appears that Budheswar had to incur expenses on repairs of the jeep and for purchase of petrol and Mobil oil consumed by the jeep from January 21, 1969 to February 7, 1969. This shows that the jeep was in his possession for a period much longer than what was alleged by him, i.e., for about 16 days.

Budheswar has stated in his evidence that he had submitted a correct statement of his Return of election expenses (Qs. 805 and 806). According to him, various pieces of papers were received from various persons and he made over those papers to one Sudhir Babu of the Purulia District Congress Committee office who had prepared the Return of his election expenses. Budheswar had only signed the Return. Sudhir Babu was the Secretary of the District Committee. It was he who was making payments for election expenses of candidates. And since he had prepared the Return, Budheswar thought that it was correct. Budheswar had seen that from the Return it would appear that the jeep was used by him from January 21 ; but he states that, in fact, he had used the jeep for four days only, that is, on February 6-9 (Qs. 829-835). Budheswar admits that one (Kamal Mohato, a Congress worker of Ashpara, had obtained a jeep from Bandwan and was moving about in that jeep (Qs. 838-845). He could not realize whether Kamal Mohato was using the jeep for Budheswar''s election campaign (Q. 862). His answers to Qs. 863 and 864 are as follows:

Q. 863. Therefore, on the first occasion you saw Kamal Mohato in a jeep you did not realize that he had gone out in that jeep in connection with your election work ?

I have already submitted... that I do not know anything about the expenses which have been mentioned in the statement. I submit that I do mot know anything. I was asked to put my signature and I signed it only on belief. I do not know whether good or bad has been done.

Q. 864. I am not suggesting that your election Return is incorrect ?

At that time the jeep did not carry any flag.

The above answers of Budheswar are but feeble attempts to wriggle out of an uncomfortable position. Let us now examine what Satya Kinkar Sen had to say on this topic. This witness is definite that only one jeep was used in Budheswar''s election and it was used on February 6-9, 1969 (Qs. 325 and 326). It is also his evidence that all expenses for the jeep were incurred by him and these were incurred between February 5 and February 10, 1969. (Qs. 678-680).

In this state of the evidence the only person who could explain the discrepancy between the oral testimony of Budheswar and Satya Sen on the one hand and the statements made in the Return of election expenses on the other, was Sudhir Babu, the Secretary of the Purulia District Congress Committee; but he has not been called. The other person who might have thrown some light on this subject was Kamal Mohato; but Kamal Mohato has not also been called. In Satya Vir Vs. State, it has been held that the omission on the part of the accused to produce all important evidence in support of his plea of alibi which could easily have been produced raises the presumption against him under illus. (g) to Section 114, Evidence Act, that it would, if produced, have been unfavorable to him. In these circumstances, I am justified in rejecting the evidence of Budheswar Majhi that owing to the non-availability of the jeep he was unable to visit various places in his constituency including those mentioned in para. 12 of the petition.

Mr. Ajoy Ghose, the Learned Counsel for Budheswar, contends that Ex. H is inadmissible in evidence as it is nothing but a copy of a private document. Moreover, the original accounts under the provisions of the Representation of the People Act are to be kept by the candidate or his election agent. A copy of this original account is filed with the appropriate authorities as the Return of election expenses. And Ex. H is a copy of that copy which was filed. Mr. Ghose refers to the case of Smt. Krishna Subala Bose v. Dhanapati Dutta AIR 1957 Gal. 59 . It has been held in this case that when a copy is prepared from another copy, it does not come within the meaning of secondary evidence in Section 63, Evidence Act, unless it is compared with the original. Mr. Ghose also refers to Petlad Turkey Red Dye Works Co. Ltd. Vs. Dyes and Chemical Workers'' Union, Petlad and Another, to show that the facts stated in the balance-sheet of a company have to be proved like any other fact.

To appreciate the relevance and admissibility of Ex. H we have to refer to some of the provisions of the Evidence Act and the Representation of the People Act, 1951.

Section 17 of the Evidence Act defines an ''admission''. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, which is made by any of the persons, and under the circumstances mentioned in the following sections of the Act. Section 18 provides, inter alia, that statements made by a party to the proceeding are admissions. Section 21 prescribes, inter alia, that admissions are relevant and may be proved as against the persons who make them. Relying on these provisions of the Evidence Act the Petitioner, it seems, is entitled to rely on Budheswar''s admission in his Return of election expenses that a jeep was used in his election from January 21,1969, to February 7,1969. He has also stated orally in this Court that the jeep was in use till February 9, 1969 ; but the question remains as to how far the Return of election expenses can be relied on for these purposes. Now,, Section 77 of the Representation of the People Act, 1951, says, inter alia, that every candidate at an election shall keep separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof both dates inclusive. The account shall contain such particulars as may be prescribed. Then, Section 78 says, inter alia, that every contesting candidate at an election shall, within 30 days from the date of election of the returned candidate, lodge with the District Election officer an account of his election expenses which shall be a true copy of the account kept by him. These provisions make it clear that a contesting candidate has the obligation under the statute to keep a separate and correct account of his election expenses and lodge a true copy of this account with the District Election officer within the prescribed time. Indeed, u/s 10A the Election Commission has the power to disqualify a person for a period of three years for Membership of Parliament and State Legislature for failure to lodge the account of election expenses in the manner laid down in Sections 77 and 78. We now come to the Conduct of Election Rules, 1961, framed under the statute. Rules 86 to 90 are Rules relating to election expenses. Rule 88 specifically provides that any person shall on payment of a fee of one rupee be entitled to inspect any such account and on payment of such fee as may be fixed by the Election Commission in this behalf be entitled to obtain attested copies of such account or any part thereof. Exhibit H-produced in this Court is the attested copy contemplated by Rule 88. It can, therefore, by reason of the special provisions of the Representation of the. People Act, 1951, and the Rules made thereunder, be said to be a certified copy of public record of a private document within the meaning of Sub-section (2) of Section 74 read with Section 77 of the Evidence Act. From this point of view the objection to its admissibility cannot, in my opinion, be sustained.

The entry relating to expenses on the jeep from January 21 onwards in Ex. H cuts at the root of Budheswar''s plea of alibi which must be rejected. We have, therefore, to examine now the legal effect of rejection of the defence of alibi. In Satya Vir v. State (Supra) it has been held that where an accused pleads alibi, it would be taking things in their natural sequence to examine defence evidence relating to that plea first. That is why, in this judgment, I have; first discussed Budheswar''s plea of alibi. Budheswar''s failure to establish this plea does not, however, mean that he has committed the offences alleged in para. 12 of the petition. A Special Bench of this Court in Sarat Chandra Dhupi Vs. Emperor, has observed that whenever a defence of alibi is set up and that defence utterly breaks down, it is a strong inference that if the prisoner was not in fact where he says he was then in all probability he was where the prosecution says he was. At any rate, says the Special Bench, the line of defence adopted arid the failure to substantiate it is an element which it is right to take into consideration in deciding whether or not the accused is guilty. Applying these principles to the facts of this case I have to observe that Budheswar''s failure to substantiate his plea of alibi leads to the inference that in all probability he had visited the places, He is alleged to. have visited in para. 12 of. the petition. This is an element to be taken into consideration in deciding whether he has committed the offences alleged against him; but the burden of proving these allegations must be discharged by the Petitioner before Budheswar can be held to be guilty of the charge of bribery within the meaning of the Representation of the People Act, 1951.

In Bharadwaj Singh Vs. State, on the complaint of, Harimati Dasi, Harries C.J. has observed:

I do not think it is necessary to point out that an accused cannot be convicted where there is no evidence against him merely because his evidence is disbelieved. If that was so, then countless people would be wrongly convicted merely on the ground that the Court has disbelieved the usual defence tendered, namely, of alibi.

In this case, I have disbelieved Budheswar''s defence of alibi; but I have to examine in each case presented to me on behalf of the Petitioner whether the allegations against Budheswar have been established beyond doubt.

The Supreme Court also made a similar approach in Dr. M. Chenna Reddy v. V. Ramachandra Rao and Anr. Civil Appeal No 1449 (N.C.E.) of 1968 in its judgment on an election matter delivered on. December 17, 1968. Mr. Chatterjee, the counsel for the Petitioner, addressed me on Budheswar''s ability to spend money on his election. I am not dealing with this aspect of Mr. Chatterjee''s argument. The amounts Budheswar is alleged to have paid to different persons as inducements, are small amounts. Moreover, neither he nor Satya Sen complained to me that the election campaign of Budheswar had suffered for want of funds. On the contrary, Budheswar has said to me in Q. 215 that he paid money wherever he went and apart from that he paid money to his workers. He asserts, however, that he never paid any money with a view to induce voters in any manner whatsoever: vide Q. 45. Mr. Chatterjee has submitted to me that there is evidence to show that large sums of money were spent by or on behalf of Budheswar Majhi on February 6, 7 and 8,1969. According to the counsel, it is, therefore, permissible to infer that these moneys were utilized for bribery. In my opinion, such inference would be unreasonable. A candidate may have to spend larger sums of money during the last few days of the election campaign; but it does not necessarily follow that such sums were spent on bribery. The Court will require far more convincing evidence to come to a conclusion of this nature. The proof of a corrupt practice requires cogent and reliable evidence. The charge must be satisfactorily established. It cannot be established by mere preponderance of probability.

Counsel for Budheswar had argued on insufficiency of pleadings. I do not think any useful purpose would be served by dwelling on such points in this judgment. The parties have gone to the trial despite the absence of full particulars and the petition cannot be dismissed owing to defects in pleadings at this stage. In Bhagwan Datta Shastri Vs. Ram Ratanji Gupta and Others, it has been observed that there can be no doubt that the requirement of full particulars of corrupt practice in the election petition is of paramount importance, but where, notwithstanding the absence of particulars, evidence is allowed to be given and taken, the question would not be one of the absence of jurisdiction but as to whether there has been any material prejudice occasioned by the absence of particulars. In the instant case, I do not think any material prejudice has been caused to the Respondent No. 1. The petition has been heard for a fairly long time and Budheswar had more than ample opportunity of meeting the cases made out by the Petitioner''s witnesses. In these circumstances, it would be unnecessary to discuss insufficiency of pleadings in this judgment.

Mr. Somnath Chatterjee, the counsel for the Petitioner, has also relied on judgments of the Supreme Court and the Punjab and Assam High Courts for the propositions (a) that the consent of the candidate to a corrupt practice may be inferred from circumstantial evidence and (b) that adverse inference can be drawn for failure of a candidate charged with corrupt practice to call material witnesses. As these are undisputed propositions, an elaborate discussion on them is wholly unnecessary.

I propose at this stage to examine the arguments advanced before me on the necessity of corroboration of evidence adduced by accomplices. In this election petition, as I have already stated, most of the witnesses on behalf of the Petitioner have deposed that Budheswar gave them diverse sums of money and promised to pay further amounts after the election in consideration of their voting for him and inducing others to vote for him. They have said that at the time they accepted moneys from Budheswar they did not know that they were committing any offence or any corrupt practice. Mr. Somnath Chatterjee''s contention before me has been that the evidence of these accomplices needs no corroboration at all. In order to be an accomplice, argues the Learned Counsel, mens rea is an essential element to be taken into consideration. And if it is proved that the accomplice did not know at the time of committing the corrupt practice that what he was doing was illegal, he was not an ''accomplice'' in the eye of law and the Court should have no hesitation in accepting his uncorroborated testimony. These propositions of Mr. Chatterjee have been seriously disputed by counsel for the Respondent No. 1. Numerous decisions have been cited on behalf of both the parties. The legal propositions that emerge from these decisions, may be conveniently summarised at this stage to dispose of one of the principal contentions which arises for my consideration in the present case. The word ''accomplice'' has to been defined by the Evidence Act. But it means a person who knowingly or voluntarily co-operates with or aids and assists another in the commission of a crime. To render a person an accomplice his participation in the crime must be criminally corrupt. A participles criminis in respect of the actual crime charged is an accomplice; vide AIR 1942 221 (Oudh) ; Ismail v. Emperor AIR 1947 Lah. 220; In Re: Ambujam Ammal, ; Amulya Ratan Mukherjee v. The State 74 C.W.N. 378 and Mohd. Husain Umar Kochra etc. Vs. K.S. Dalipsinghji and Another etc., .

To determine, therefore, whether or not a person is an accomplice the element of mens rea is an essential ingredient to be taken into consideration ; but while dealing with cases of statutory offences, Courts have not rigidly adhered to this view. A sound rule of construction undoubtedly is to construe a statutory provision creating an offence in conformity with the Common Law rather than against it unless the statute, (a) expressly or (b) by necessary implication, excluded mens rea. It is excluded by necessary implication when it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. Such a construction obviously depends on the object of the statute and the provisions thereof: vide Nathulal Vs. State of Madhya Pradesh, ; Sarjoo Prasad Vs. The State of Uttar Pradesh, and State of Maharashtra v. Mayer Hans George AIR 1964 S.C. 722.

In the instant election petition we are concerned with bribery which is deemed to be a corrupt practice u/s 123 of the Representation of the People Act, 1951. Bribery has been defined in Section 123(1)(A) & (B) of the Act. It means, inter alia, any gift, offer or promise by a candidate of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing an elector to vote at an election and also the receipt of or agreement to receive any gratification, whether as a motive or a reward by any person whomsoever for himself or any other person for voting or attempting to induce any elector to vote. For the purpose of this clause, it is stated in the ''explanation'', the term ''gratification'' is not restricted to pecuniary gratification or gratification estimable in money and it includes all forms of entertainment and all forms of employment for reward, but it does not include payment of any expenses bona fide incurred at, or for the purpose of any election and duly'' entered in the account of election expenses referred to in Section 78 of the Act. The question is whether a person who accepts gratification is an ''accomplice'' in the commission of the corrupt practice of ''bribery'' within the meaning of the statute unless he knows at the time of acceptance that this is a corrupt practice under the Act. According to the authorities cited above, mens res can be excluded by necessary implication only when the Court comes to the conclusion that the object of the statute would otherwise be defeated. What, indeed, is the object of the Representation of the People Act, 1951 } Going through the relevant provisions of the statute particularly the provisions relating to ''corrupt practices'' one is left with the impression that the object of the statute is to ensure a free, fair and democratic election without which the very foundation of Indian democracy would be at stake and the Constitution to which the people owe their allegiance would be reduced to a mockery. From this point, of view it is clear that, so far as corrupt practices are concerned, mens rea has been excluded by necessary implication. A person who accepts gratification whether he has knowledge of the provisions of Section 123(1) of the Representation of the People Act, 1951, or hot, is an ''accomplice'' a participes criminis in the commission of the corrupt practice. The view that I have taken can be supported by the opinions expressed in two decisions of the Supreme Court. In Jagan Nath Vs. Jaswant Singh and Others, it was observed that one of the essentials of election law was to safeguard the purity of the election process. In Sheo Sadan Singh Vs. Mohan Lal Gautam, it has been held that an election petition alleging corrupt practices etc. against the Respondent does not abate or become infructuous on the dissolution of the assembly by the President''s proclamation under Article 356(1) of the Constitution. The Supreme Court is of the view that in an election petition the contest is really between the constituency on the one side and the person or persons complained of on the other. Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the Petitioner. The reasons for the elaborate provisions, according to the Supreme Court, are to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds. These observations of their Lordships of the Supreme Court make me convinced that the object of the statute we are dealing with would be defeated unless, so far as corrupt practices are concerned, the element of mens rea is excluded by necessary implication.

We can approach the problem before us from another point of view. In The Legal Remembrancer, Bengal v. Ambika Chamn Dalal ILR (1946) Cal. 127 (130) a Division Bench of this Court has observed that the English Common Law is not the criminal law in force in India. Every offence, of which the Indian Courts can take cognizance, is clearly defined by statute. The Indian Legislature has embodied many of the principles of English Common Law modified to suit Indian conditions in the criminal law of India. But, instead of enacting a general, principle such as nemo est reus nisi mens sit rea, the Indian Legislature has included in the definition of each offence a clear statement of the mental condition necessary to constitute the offence. If, in any case, the Indian Legislature has omitted to prescribe a particular mental condition, the presumption is that the omission is intentional. this Court observes further that where an Indian statute is ambiguous or its meaning obscure, it is proper to refer to the principles of English Common Law to resolve the ambiguity or elucidate the-meaning; but where the statute is free from ambiguity and the meaning is clear, the Courts are not justified in importing words into the statute or refusing to give effect to the clear meaning of the statute or giving a forced or unnatural meaning to the words of the statute in order to make it conform with the principles of Common Law.

We need not discuss whether this decision can be supported in the light of the views subsequently expressed by the Supreme Court, but that Court itself in Indo-China Steam Navigation Co. Ltd. Vs. Jasjit Singh, Additional Collector of Customs and Others, has compared the provisions of different Sub-sections of Section 167 of the Sea Customs Act, 1878, and has arrived at the conclusion that where the Legislature wanted to introduce knowledge or intention actuating the commission of the offence as an essential element of the offence, it has used appropriate words to indicate that intention. And the failure to use similar words in Section 167(12A) cannot be regarded as accidental but must be held to be deliberate and a person may be convicted u/s 167(12A) even in the absence of mens rea.

Let us try to apply these principles to the relevant provisions of the Representation of the People Act, 1951. We have seen that in defining the corrupt practice of bribery, the Act is silent as to the mental condition of the person who accepts gifts or gratifications for voting or inducing others to vote at an election. These are provisions of Section 123(1)(B) of the Act. But Section 123(4) prescribes another instance of corrupt practice. This corrupt practice consists of the publication by a candidate or his agent or any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate''s election.

It is manifest on a comparison of the provisions of Section 123(1)(B) with those of Section 123(4) that mens tea is an essential ingredient in the latter but not in the former. In other words, a person who receives gratification for the purpose of voting or inducing others to vote at an election commits a corrupt practice whether he is conscious of the offence or not. It is no defence, to say that he did not know that he was committing an offence. The Petitioner''s witnesses, who are alleged to have accepted bribes, are accomplices in the commission of an offence irrespective of their knowledge of the offence. The next question that falls for determination is the advisability of accepting their evidence without corroboration.

Section 133 of the Evidence Act provides that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. But Section 114, illus. (b) provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. The combined effect of these two provisions has been repeatedly considered by Courts both in India and in England. In Rameshwar Vs. The State of Rajasthan, it has been observed that-the rule laid down in King v. Baskerville (1916) 2 K.B. 658 with regard to the admissibility of the uncorroborated evidence of an accomplice is also the law in India. The rule is that such evidence is admissible in law; but it has long been a rule of practice, which has virtually become equivalent to a rule of law, that the Judge must warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice. The only clarification necessary for purposes of our country is where this class of offence is sometimes tried by a Judge without the aid of a jury. In these cases, it is necessary that the Judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reason for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.

For the purposes of the present petition the principle to be borne in mind, therefore, is that uncorroborated testimony of an accomplice is admissible, but if a conviction is based on such uncorroborated evidence, the Judge must give the reasons why he has considered &. safe to convict without corroboration. This principle has been reiterated in numerous decisions although the choice of words to express it has not been the same. References may be made to Haroon Haji Abdulla Vs. State of Maharashtra, ; AIR 1949 257 (Privy Council); Kashmira Singh Vs. State of Madhya Pradesh, ; Bhiva Doulu Patil Vs. State of Maharashtra, ; Bhanu Prosad v. State of Gujarat; Piara Singh v. State of Punjab and Hussain Umar v. Dalip Singhji. Indeed, in the latest Supreme Court decisions on the subject strong observations have been made in favour of corroboration. For instance, in Bhanu Prosad v. State of Gujarat AIR 1968 S.C. 1323 (1327) and in Piara Singh v. State of Punjab it is observed that no conviction can be based on accomplice evidence unless it is corroborated in material particulars and in Hussain Umar v. Dalip Singhji it is stated that the combined effect of Sections 133 and 114, illus. (b) is that, though a conviction based upon accomplice evidence is legal, the Court will not accept such evidence unless it is corroborated in material particulars.

The position, therefore, is that it is unsafe to convict an accused on uncorroborated testimony of his accomplices unless there are compelling reasons to dispense with corroboration and these reasons must be clearly noted in the judgment.

The next point is about the nature of corroboration that is required. The corroboration, it is well-settled, must be by independent testimony and confirm in material particulars not only that the crime has been committed but also that the accused has committed the crime. The corroboration may be by direct or circumstantial evidence: vide The State of Bihar Vs. Basawan Singh, ; Ramanlal Mohanlal Pandya Vs. The State of Bombay, ; Major E.G. Barsay Vs. The State of Bombay, ; Piara Singh Vs. The State of Punjab, ; Amulya Ratan Mukherjee v. State (Supra) and Hussain Umar v. Dalip Singhji (Supra).

There is another point which ought to be noted at this stage. A difference has to be borne in mind between the evidence of accomplices and the evidence of partisan or interested witnesses. Accomplice evidence, as we have seen, almost invariably requires corroboration. In the case of partisan or interested witnesses the Supreme Court in Masalti Vs. State of U.P., , has said:

There is not doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence, whether or not the evidence strikes the Court as genuine, whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence ; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

In this election petition quite a few witnesses appeared before this Court who seemed to be interested in the victory of the Petitioner or the party represented by the Petitioner. In weighing their evidence a cautious approach will have to be made.

With these preliminary observations I now proceed to deal with the allegations of corrupt practices which were ultimately pressed by counsel for the Petitioner in the same order as I have been invited to consider them. All these allegations, it is unnecessary to add, have been denied seriatim in the written statement of the Respondent No. 1.

In para. 12(c) of the petition the allegation is that on February 8, 1969, the Respondent No. 1 went to Tolamudidi of Ganga-manna and met Bulu Mudi, one of the leading persons of Tola. The Respondent No. 1 asked Bulu Mudi to vote for him., The Respondent No. 1 gave to Bulu Mudi Rs. 100 in the presence of Ganesh Mudi and Ghalu Sabar. These three persons were entreated by the Respondent No. 1 to induce the voters with that money. Accordingly, these three persons distributed some of the money amongst some of the voters of that village. The election took place on the following day, namely, February 9, 1969.

Mr. Roy, the counsel for the Petitioner, referred casually to the evidence of the Petitioner on this alleged incident, but he said that the Petitioner had no direct knowledge and his statements were hearsay. The real witness was Bui-li-Mudi himself. Mr. Roy, to start with, drew my attention to Qs. 599 to 609. Here, Bulu Mudi has said that when he accepted money he was not aware that it was illegal to do so.'' Mr. Roy contends that in the absence of mens rea Bulu was. not an accomplice. For reasons already stated I do not accept this contention.

Bulu Mudi, the principal witness on this sub-paragraph of para. 12, apart from being an accomplice, has come out with a different story on the witness-box. He says that Budheswar gave him Rs. 100 and promised that later on he would give more money for making payments to those persons who would be persuaded to vote in his favour: vide Qs. 21 and 52. The promise of further payment has not been alleged in para. 12(c) of the petition. There is also a document marked Ex. D which is a statement on this incident signed by Bulu Mudi and made over to the Lok Sevak Sangha, the party of the Petitioner, on March 10, 1969. In this document also the promise of further payment has not been mentioned. Secondly, both in para. 12(c) of the petition and in Ex. D the case is that Budheswar paid money to Bulu Mudi in the presence of Ganesh Mudi and Ghalu Sabar. On the witness-box Bulu''s story is that there were seven persons at the time of payment of the sum of Rs. 100 by Budheswar amongst whom a sum of Rs. 70 was distributed at the rate of Rs. 10 each and the balance Rs. 30 was kept for purchase of tea and pakoras to be supplied to voters on the date of the election. These seven persons were Ganesh Mudi, Sambhu Mudi, Bhakta Mudi, Chuna Sabar, Ghalu Sabar, Khanda Sabar and Bulu himself (Qs. 22, 23, 55, 57, 446, 449, 494 and 595). Moreover, in Ex. D Bulu Mudi has stated that a sum of Re. 1 or Rs. 2 was paid to Chuna Sabar, Khanda, Sabar, Sambhu Mudi, Bhakta Mudi and others; but in his evidence he says that he did not make that statement to the writer of Ex. D, namely Atal Mohato; on the contrary, he told Atal Mohato that the persons named above were paid Rs. 10 each (Qs.494 and 495). Then, again, his case on the witness-box is that these seven persons acted according to the instructions of Budheswar on the date of election (Q. 24). In other words, tea and pakoras were purchased with the said sum of Rs. 30 and supplied to voters on the date of election, according to him, under Budheswar''s instructions. This is not a case made either in the petition or in Ex. D.

Mr. Roy, the Learned Counsel for the Petitioner, has said that the contradictions aforesaid are but minor contradictions which should be ignored. At any rate, they do not demolish the statements in para. 12(c) of the petition. He has said further that I should be impressed with the childlike simplicity of Bulu Mudi. It may be that by reason of these contradictions alone the Petitioner''s case in para. 12(c) of the petition cannot be rejected. But I do not consider them to be minor contradictions. �

The main weakness of the Petitioner''s case is that no independent witness has corroborated the evidence of Bulu Mudi on the allegation of payment of money by Budheswar as inducements to voters and I have not found any reason to accept Bulu''s testimony without corroboration (I shall discuss this point in details a little later). The only person who tried to support Bulu Mudi was, Bhusan Chandra Mohato; but he has no direct knowledge about Budheswar paying any money to Bulu Mudi. Bhusan saw Paban Mohato, Bulu Mudi, Netai Mohato and Ganesh Mudi canvassing in the mid-term election for the Congress party on the date of election. He thought that probably they had been given some money because they did not support the Congress party in the prior election. Three days later he made enquiries of Bulu Mudi when Bulu told him about receipt of money from Budheswar (Qs. 15-21, 420-424 and 441-460). Even the enquiry that he made of Bulu appears to be a very casual enquiry. Three days after the election Bhusan went to Phani Mudi. At Phani Mudi''s place he met Bulu Mudi. He did not ask any questions on his own, but Bulu himself told him that they had taken money from Budheswar for working for the Congress (Qs. 462-467). Bhusan did not also think it necessary to ask Bulu why he was working for the Congress party on the date of the election although Bhusan was the ''head and soul'' of the Lok Sevak Sangha in his village (Qs. 483-484). Although Bhusan was not interested in ascertaining the facts from Bulu, either on the date of election or even subsequently, he was responsible for the steps ultimately taken to collect Bulu''s evidence and to bring him to this Court. The reason is that a few days after the election a meeting of the workers of the Lok Sevak Sangha was held and the workers were asked'' to collect data regarding corrupt practices that took place in the election: vide Q. 487.

The position, therefore, is that Bhusan has not corroborated Bulu''s story of receiving money from Budheswar. On the contrary, the manner in which he obtained the news appears to be rather extraordinary.

There are other contradictions and inconsistencies in Bulu''s evidence which I now propose to point out. Bulu has stated that on the day before the date of election Budheswar came to Bulu''s place with Ganesh Mudi. Budheswar enquired of him, inter alia, who the villagers were going to vote for. Bulu said to Budheswar that the villagers would take that decision on the date of election. Thereupon Budheswar wanted to give to Bulu a sum of Rs. 100 so that the villagers would cast their votes in favour of Budheswar''s symbol. At this suggestion of Budheswar, Bulu proposed that some other villagers should be called and their views ascertained before any money was accepted. Bulu called a few other villagers and there was a discussion amongst them. Thereafter Bulu accepted Budheswar''s proposal and Budheswar paid Rs. 100 to him. There were seven persons present whose names have been stated hereinbefore who took Rs. 10 each and Rs. 30 was kept for tea and pakoras for the voters on the date of election. There were two head-men of the village Tolamudidi, namely, Bulu and Ganesh Mudi. At the point of time Budheswar paid money to Bulu Mudi, three persons were present, namely, Ganesh Mudi, Ghalu Sabar and Bulu himself. The others named above were called later. Bulu admits that both Ganesh Mudi and Bulu were known to Budheswar fairly well, but he could not explain why Budheswar did not pay money to Ganesh who was also a head-man but came with Ganesh to Bulu for paying the money: vide Qs. 17-23, 168, 175-179, 510-513 and 677-681.

Before we examine the doubts that arise out of these answers of Bulu, it would be necessary to probe into Bulu''s evidence and of Bhusan''s evidence a little further. Bulu has categorically stated that he (generally) listens to Bhusan Mohato because Bhusan is a person from the Lok Sevak Sangha (Q. 134). Bulu admits that he is grateful to the Lok Sevak Sangha and its leaders for the Hal Satyagraha conducted by them (Q. 167). Bhusan Mohato has stated that in 1967 he had political discussions with Paban, Netai, Bulu and Gour Mudi. They worked for the Lok Seyak Sangha in the general election of 1967. They used to talk to Bhusan and other workers of the Lok Seyak Sangha and move with them in the village during the election campaign (Qs. 425-428 and 583).

It is clear, therefore, that Bulu at least in 1967 was a supporter of the Lok Sevak Sangha and, if his evidence is to be accepted, he changed his party allegiance in the mid-term election of 1969 upon receiving a sum of Rs. 100 from Budheswar out of which he kept for himself only a very small sum. One of the weaknesses of his story is that he could not explain why Budheswar did not pay the money to Ganesh Mudi who was also a head-man in the village, but had to come to him with Ganesh to make the proposal of inducing voters to vote for him in consideration of various sums of money. Moreover, it does not appear from the evidence how the said sum of Rs. 100 came to be fixed and whether Budheswar made any enquiries as to how many voters could be induced with this small sum of money. - Then, again, it is Bulu''s definite case that only three persons were present when the money was paid, but he goes on to say that the initial distribution was amongst seven persons. The whole story from these points of view appear to be unbelievable.

Ganesh Mudi, Who is supposed to have come with Budheswar, has not been called to support Bulu in spite of the assurance of Kandru Majhi, the Petitioner, that Ganesh Mudi would be called (Qs. 643-648). Kandru Majhi also mentioned the name of Lakshman Mudi in connection with this incident (Q. 139), but he also has not been called. Nor does Lakshman''s name appear in Ex. D.

The next aspect of the matter which struck me was the absurdity of Bulu''s story. He says that Budheswar paid to him Rs. 100 and promised to pay him more for inducing voters; but the number of voters, according to him, was only 40 and he did not know how much'' each would ask for at the time he received the money: vide Qs. 52, 256-269 and 281-287. Secondly, Bulu has not been very consistent with regard to the purpose for which the money was paid. To start with, he has said that out of the sum of Rs. 100 which Budheswar gave to him, he kept Rs. 10 only for distribution amongst the voters. He distributed Rs. 6 at the rate of Re. 1 each to six voters. The balance of Rs. 4 was utilized to go from one place to another and for the efforts that Bulu had to make for Budheswar. He does not know how the others, who were paid at the rate of Rs. 10 each, had utilized their moneys (Qs. 28-34). Then he says in Q. 261 that Budheswar gave Rs. 100 to him for setting up an organisation in the village so that he and his friends could induce Voters to vote for Budheswar or the Congress party and also for making payments to those who would vote for Budheswar. Thirdly, on the witness-box For the first time Bulu has come out with a new story of how the initial balance of Rs. 30 was spent. He says that with this money they purchased and offered pan, biri, tea and telebhaja to voters. He cannot say_ how many voters could be entertained with this sum of Rs. 30. This was not done, however, under the instructions of Budheswar; but Bulu and his friends knew that if money was to be spent for election, it was to be spent in that way. Election, according to him, is a kind of festival in the village and even female members of different families come out with their children. Stray persons join as well. And all these persons had to be treated with the articles of food mentioned above (Qs. 632-641). This is a case which was not made either in the petition or in Ex. D. It is also interesting to note that in Qs. 636-641 Bulu first said that when Budheswar gave Rs. 100 to him, Budheswar said to him that they might utilize the money in any manner they liked with a view to mobilize the support of the villagers in favour of Budheswar. And the manner in which the money was actually spent was decided upon by Bulu and his friends. By these answers he was letting down the Petitioner; but in Q. 641 he changed the trend of his previous answers and said that the voters were paid at the rate of Re. 1 or Rs. 2 each at the instructions of Budheswar.

The next aspect of Bulu''s evidence is that he was told by Bhusan Mohato, Sagar Mqhato and Banamali Mohato�all workers of Lok Sevak Sangha, that Bulu was a voter (Qs. 403-407). I have already said that Bulu does not remember how many persons were entertained with the balance sum of Rs. 30, but they were voters: as well as non-voters. The entertainment of voters and non-voters started at about 12 o''clock and went on for the rest of the day till the money was exhausted and Bulu and his friends returned home. Pan and ''biris� were purchased for elderly persons and sweetmeats for the children. The children were not voters, but their mothers who came to vote could not leave them behind. Gobardhan and Sagar Mohato, two of the villagers, had opened shops for selling pan, bin, telebhaja etc. on the day of election. Sagar Mohato is a worker of the Lok Sevak Sangha, Bulu called many voters as well as others to Sagar Mohato''s shop for entertaining them; but Sagar Mohato did not ask him why he was doing all that. Bulu also gave, in front of Sagar Mohato''s shop, small coins to voters both male and female as well as others for purchase of articles of food from the shop, but even then Sagar Mohato was not surprised as ''at that time he did not know what was going on''. Bulu does not know whether Sagar Mohato had heard what Bulu was telling the voters. He does not know whether Sagar Mohato understood what Bulu was trying to do. All that he can say is that there was some sort of a mela before Sagar Mohato''s shop. Many persons were moving here and there ; but Sagar Mohato did not ask Bulu what was happening (Qs. 642-673). These are fantastic answers to which no Court can attach any credence.

What I have said in the foregoing paragraphs is enough to come to the conclusion that no reliance can be placed on the uncorroborated testimony of Bulu Mudi.

Mr. Roy, the counsel for the Petitioner, suggested that there were no inconsistencies between Bulu''s evidence and his statements in Ex. D. He said that if the purchased after the word dilam in the last but four lines of the document be removed and it was placed after the word pravitike in the last but three lines, there would be no contradiction between the document and Bulu''s evidence. I do not agree with Mr. Roy. Reading the document as a whole my impression is that the punctuations in this document are quite correct and what is stated in the document is different from what Bulu said on the witness-box. If Mr. Roy''s reading of the document were correct, the last sentence in the document would not be sufficiently expressive as well as grammatically incorrect. Needless to repeat that neither the petition nor the document says that there were entertainments of voters and non-voters with tea, pakodas, sweetmeats etc. To my mind, it would be most unsafe to place reliance on the uncorroborated testimony of a witness like Bulu Mudi. I, therefore, hold that the allegations in para. 12(c) of the petition have not been proved.

In para. 12(q) it is alleged that at Pargela Booth No. 38 5ri Bimal Kumar Maiti, assistant farm manager, District Fishery Officer, was the presiding officer. Sri Jogendra Nath Mohato, the head ''teacher of Pargela Primary School, was the third polling officer who was in charge of ''supplying ink for the voters'', that is he was deputed to put the indelible ink, mark on the voters'' fingers. But the third polling officer did not turn up at the commencement of the poll. Thereupon the presiding officer engaged the polling agent of the Congress party named Sabitri Bala Mohato to do the work of the third polling officer. The Petitioner''s polling agent Baidyanath Mohato protested against this decision of the presiding officer without any result. Taking advantage of this appointment Sabitri Bala Mohato pointed out to the voters that they should put the rubber stamp on the symbol of the Congress candidate. Sabitri Bala, in spite of the protest by the Petitioner''s agent, was allowed to continue her activities till 9 a.m. when the third polling officer arrived.

Quite a few witnesses were examined by both the parties on the allegations in para. 12(q). It is unnecessary to discuss the evidence of all these witnesses or the elaborate arguments advanced before me on their evidence. Assuming that all the allegations in para. 12(q) are true, there is no evidence whatsoever to show that Budheswar had anything to do either with the appointment of Sabitri Bala in place of the third polling officer or with the alleged illegal activities of Sabitri Bala. Mr. Roy, the counsel for the Petitioner, has submitted to me that Budheswar''s consent to the acts of Sabitri Bala should be inferred from the facts that (a) Sabitri Bala''s father Bhusan is a leading member of the Congress party at Pargela, (b) Budheswar visited Bhusan only a few days before the election and (c) the polling officers engaged at this booth were supplied with their meals in the evening before the date of poll by Bhusan. Firstly, there is no allegation in the petition that the polling officers had their dinners before the election at the expense of Bhusan. Secondly, it would be too far-fetched to think that Budheswar''s visit to Bhusan, a leader of the Congress party at Pargela, three days before the election, had any connection either with Jogen Mohato''s ''sudden absence'' from the polling station in the morning or with Sabitri''s consequent appointment or with Sabitri''s. illegal activities, if any. Since Budheswar''s connivance has not been proved, the only argument possible on behalf of the Petitioner is an argument based on Section 100(l)(d)(ii) of the Representation of the People Act, 1951. The argument is that the result of the election, insofar as it concerns the returned candidate, has been materially affected by a corrupt practice committed in the interest of the returned candidate by his agent. It is doubtful whether the alleged activities of Sabitri after her appointment by the presiding officer can be said to be activities as an agent of Budheswar. But assuming that is so, let us try to ascertain whether the result of the election has been materially affected by what Sabitri had done. Budheswar has won this election by a margin of 1,433 votes, I asked M� Roy to satisfy me on the evidence on record that the result of this election had been materially affected by Sabitri''s attempts to influence voters in the manner described in para. 12(q) of the petition. No voter of Booth No. 38 of Pargela has come up before me to say that he or she was sought to be influenced by Sabitri. The Petitioner''s own polling agent Baidyanath Mohato was examined on this point. In Q. 45 this witness has said that Sabitri pointed out the symbol of the Congress party on the ballot papers to about 50 or 60 voters.

I now quote below Baidyanath Mohato''s answers to Qs. 517-521 which would show how little reliance can be-placed on a witness like him.

Q. 517. How many voters did you observe ?

By guess only I can give you the number because it happened long time back. I have no exact recollection. I myself observed about 8 or 10 cases of voters. Sabitri Bala was doing that illegal act and she had started the thing from before. I think then she committed that illegal act in cases of 50 or 60 voters.

Q. 518. How many voters did you observe who were being indicated by Sabitri Bala to vote on the two bullocks with a yoke on�please mention the exact number ?

I myself observed that in the case of 8 or 10 female voters. Then I came to the conclusion that since 50 to 60 voters had come, she did that thing in the cases of those 50 to 60 voters.

Q. 519. Did Sabitri Bala continue this illegal activity even after you had made protest to the presiding officer ?

After I made protest she did not continue that. She was then doing the work properly.

Q. 520. You watched Sabitri Bala for 8 to 10 minutes and in those 8 to 10 minutes how many/ voters took delivery of ballot papers from her with a view to vote? The number of voters within that period of 8 or 10 minutes would be about 4 or 5, not more than that. But I have said the number as 8 or 10.

Q. 521. Is it your evidence'' that in those 8 to 10 minutes about 8 to 10 voters took ballot papers from Sabitri Bala ?

Eight or 10 voters were standing. They were taking the ballot papers and I observed in cases of 8 or 10 voters as to what she was doing. After I observed that illegal act and after making myself satisfied I protested.

It is manifest that Baidyanath Mohato was merely speaking of his conjectures. He first said that 8 or 10 voters were influenced by Sabitri. He then reduced the number to 4 or 5. And by pure guess he formed the opinion that she tried to influence 50 to 60 female voters.

Assuming that all that the Petitioner has stated in para. 12(q) is true and assuming also that all that the Petitioner''s polling agent. Baidyanath Mohato has stated is also true, the result of this election was not materially affected by the alleged corrupt practices by Sabitri Bala and, as such, it would be useless to discuss the evidence of the other witnesses on this point. This election cannot be set aside on the basis of allegations made in para. 12(q) of the petition. These allegations might have been of some relevance in naming persons (if any) guilty of corrupt practices; but simply on the evidence of a witness like Baidyanath Mohato no corrupt practice can be held to have been proved.

I now proceed to deal with the allegations in para. 12(b) of the petition. It is stated that on February 8, 1969, the Respondent No. 1 went to a village called Gangamanna and met Paban Mohato, Netai Mohato and others and told them that he was a new-comer in the political field and should be given a chance in preference to the Lok Sevak Sangha. To ensure the votes of the village the Respondent No. 1 gave to Paban Mohato a sum of Rs. 50 in order to influence voters on payment of Re. 1 or Rs. 2 to each of them. He also promised to send more money for the purpose. Paban Mohato shared the amount with some of the voters so that they might also cast their votes in favour of the Respondent No. 1.

Let us start with the pleadings in para.-12(b). Here, it is stated that Budheswar met Paban Mohato, Netai Mohato ''and others''. There are no particulars as to who these ''others'' were. The name of Netai is mentioned, but it is not stated that Netai shared any portion of the money which Budheswar had paid to Paban: Then there is a promise of Budheswar ''to send more money for the purpose''. Firstly, the amount of the further sum is not stated. Secondly, the promise does not fit in with the circumstances inasmuch as the promise is made on February 8 and the election was to take place en February 9. If payments were to be made to individual voters on the day of election this was an useless promise. The next statement in para. 12(b) is that Paban Mohato ''shared the amount with some of the voters''. The names of these voters are not disclosed. The place where the meeting was held in the village Gangamanna is not also mentioned. Nor is it stated whether Budheswar went alone or was accompanied by others. Apart from these defects in the pleadings, there is a document in this connection marked Ex. B. This is a document alleged to have been signed by Paban Chandra Mohato and Netai Mohato on the altered date of March IS, 196.9. The petition, incidentally, was filed on March 27, 1969. In this document also the place of the meeting is not mentioned (the oral evidence is that the meeting took place at Netai Mohato''s residence: vide deposition of Paban Mohato, Q. 9). The document does not say who accompanied Budheswar (the oral evidence is that Kushadhaj Mohato and Kamal Mohato came with him: vide deposition of Paban Mohato, Q. 9). The document says that Budheswar promised that after the election he would give a reward to Paban. The petition tells a different story. The document says that Paban and Netai, out of the money paid by Budheswar, gave moneys to Bahadur Mohato, Dhananjay Mohato, Gangaram Mohato, Bijoy Mohato, Charan Mohato and Jyoti Mohato. These names have not been mentioned in the petition but have been mentioned in the oral evidence except that of Charan. Neither in the petition nor in the document is it indicated that Netai Mohato also took money; but the oral evidence is that Netai was a participant in the distribution: vide deposition of Paban Mohato, Q. 17-23.

Besides these discrepancies the principal weakness of the Petitioner''s case is that both Paban and Netai are accomplices and no independent witness was called to corroborate them so far as payment of money by Budheswar is concerned. Bhusan Mohato might have seen them canvassing for Budheswar on the day of election. Exhibit B might also have been executed in the presence of Bhusan Mohato, but he has no personal knowledge of receipt of money from Budheswar either by Paban or Netai or both. Moreover, Bhusan is a partisan or interested witness being a worker of the Lok Sevak Sangha. Then, again, it is Paban''s evidence that there are 400 to 500 voters in the village Gangamanna (Q. 35). It is indeed surprising that Budheswar paid to Paban only Rs. 50 to influence 400 to 500 voters.

I can go on multiplying contradictions and inconsistencies ; but I am only concentrating on some of the salient features by way of illustrations. Let me now touch upon the alleged attempts by Paban to recover the further promise of Budheswar for ''reward''. Paban Mohato said on the witness-box that Budheswar wanted to pay a further sum of Rs. 50 (Q. 90). He complained to Bhusan Mohato, when the election was over, that Budheswar was not fulfilling his promise (Q. 95). Bhusan, as I have said, is a worker of the Lok Sevak Sangha. He never went to Budheswar Majhi to realize the promised further sum of Rs. 50. He went to Kamal Mohato. The reason why he went to Kamal Mohato was that Budheswar told them that the balance of Rs. 50 would be paid either by Budheswar himself or by Kamal Mohato or by Kushadhaj (Qs. 543-551). Kamal Mohato disappointed him although he went to him twice (Qs. 559-560). He did not go to Kushadhaj at all (Q. 557). It is in evidence that Kamal Mohato lives at Ashpara (Q. 546) and Budheswar in Chandra (Q. 547). The distance between Chandra and Ashpara is 3 miles (Q. 548). Kushadhaj resides at Madhupur (Qs. 552-553). The distance between Gangamanna and Madhupur and between Ganga-manna and Ashpara are almost equal (Qs. 554-556).

It seems to me that the alleged approach by Paban Mohato to Kamal Mohato for the alleged further sum of Rs. 50 is not worthy of credit. I was not at all convinced by Paban''s explanations for not approaching Budheswar directly to realize this further sum of Rs. 50. He has not also explained why he did not approach Kushadhaj when Kamal Mohato failed to satisfy him.

Lastly, the purpose for which money was paid by Budheswar has been variedly stated in the petition, in Ex. B and in the oral testimony. Paban''s evidence is that the sum of Rs. 50 was to be distributed amongst the voters at the rate of Re. 1 or Rs. 2 per head (Q. 17). There were between 400 and 500 voters; but Budheswar''s instruction was to influence as many voters as possible with the small sum of Rs. 50 (Qs. 35-36 and 92). The money was actually distributed amongst a few voters on the date of election who were paid Re. 1 or Rs. 2 per head and they were asked to cast their votes for the Congress party (Q. 26). Netai Mohato, the compatriot of Paban, has a different story to tell. He. says that the sum of Rs. 50 was to be distributed amongst influential persons in the village to induce them to persuade their supporters to vote for the Congress (Qs. 17 and 20). The idea was, according to Netai Mohato, to form a group of influential persons in the village who would operate in favour of the Congress party (Q. 21). Paban Mohato distributed the money amongst seven persons including Netai (Qs. 48-50). It is manifest that there are vast differences between the purpose of payment described by Paban and the purpose described by Netai. In the face of these contradictions no Court can possibly accept uncorroborated testimonies. I could have cited numerous other instances of unreliability of these witnesses, but that would be unnecessary in the context of the legal principles.! have discussed above. Mr. Somnath Chatterjee has argued that assuming that Paban and Netai are accomplices, it would be legal to proceed on their evidence except that it should be scrutinised with a cautious mind. In a case of discrepancy between pleadings and the supporting document, namely Ex. B, and further discrepancies in oral testimonies, I am of opinion that it would be unsafe to rely on the evidence either of Netai or of Paban. I do not accept the Petitioner''s allegations in para. 12(b) of the petition.

Mr. Chatterjee for the Petitioner next invited my attention to the charges levelled against Budheswar in para. 12(h) of the petition. In this sub-paragraph it is alleged that the Respondent No. 1 approached a party of Chhounritya at a village called Ankrow a few days before the poll and gave to Rajani Kanta Mohato, one of their head-men, in the presence of others a sum of Rs. 10 on the understanding that they would give their votes to the Respondent No. 1. The Respondent No. 1 also promised to give a further sum of Rs. 25 afterwards if he would be satisfied with the efforts of the Chhounritya party in his favour in the election.

The two principal witnesses in support of this sub-paragraph are Rajani Mohato and Lakshman Mohato. In the petition it is stated that the sum of Rs. 10 was paid to Rajani in the presence of ''others''. The names of these ''others'' are not mentioned nor is mentioned the place or the specific date of payment. Rajani Mohato has said that he brought the sum of Rs. 10 given by Budheswar to the members of the Chhou party and said to them that Budheswar had promised to give a further sum of Rs. 25 after the election and had requested the members of the party to cast their votes in his favour (Q. 38). After the election the younger members of the party asked Rajani to go to Purulia to purchase dresses for the party. Rajani said to them that he had received only Rs. 10 from Budheswar and had not yet recovered the balance of Rs. 25. He was, therefore, unable to purchase things at that moment. The younger members of the party became annoyed as Rajani" had caused them to cast their votes in favour of Budheswar. They demanded that the balance should be paid by Rajani himself. Rajani thereupon went to Bistu Mohato who was connected with the Lok Sevak Sangha and narrated all the incidents to him (Qs, 45-53). Bistu Mohato is the head-man of the village (Q. 173).

I would now refer to some of the depositions of Lakshman Mohato. According to this witness, Budheswar asked him also to vote for the Congress and gave Rs. 10 in his presence on his own for the Chhou party (Qs. 142-144). After the election there was a row (described by Lakshman as hattogol) over the balance of Rs. 25. Lakshman knew that Budheswar did not pay the balance and that was the cause of the row. The other members of the party were pressing both Rajani and Lakshman for the- money. They asked Rajani to pay the money. They were alleging that Rajani and Lakshman had received the entire sum of Rs. 35. When the other members accosted Lakshman and started demanding the money, Lakshman asked Rajani to pay the amount; but Rajani said to them that he had received only a sum of Rs. 10 (Qs. 329-333).

It is clear, therefore, that Rajani and Lakshman are accomplices and there is no independent corroboration of their evidence on the point of actual payment of money by Budheswar. It is difficult for me to accept their uncorroborated testimonies for many reasons; but I shall point out just a few of them. Both Rajani and Lakshman are not only accomplices but appeared to be supporters or sympathizers of the Lok Sevak Sangha. Rajani has frankly stated that Lok Sevak Sangha had rendered help to the villagers. On one occasion, he says, "when our bullocks and ploughs were stopped by the Congress people this Lok Sevak Sangha came forward and helped us by supplying ploughs and bullocks" (Q. 54). Aran Chandra Ghose (a leader of the Lok Sevak Sangha who has been conducting this litigation on behalf of the Petitioner) came to Ankrow, when ploughs and bullocks were stopped, and made arrangements for supplies of ploughs and bullocks to the villagers. It was at that time that the villagers came to know Arun Chandra Ghose (Q. 216). Explaining the matter further Rajani says that the forest guards prevented the villagers from cutting ploughs from the jungle ; they were ''Congress people''; Arun Chandra Ghose appeared on the scene and with his help the villagers could get their ploughs. This is an incident which occurred six or seven years ago. The people of the village who live on agriculture considered Arun Chandra Ghose to be a great benefactor and had reasons to be grateful to him. At one point of time Rajani said he did not know whether it was the ''Congress people'' or the forest guards who were causing the mischief, but the trend of his evidence is that this was being done at the instance of the Congress party: vide Qs. 273-285. Rajani has categorically stated that he has love and respect for Arun Chandra Ghose (Q. 446). Lakshman Mohato also tells more or less the same story. He first says that� he does not belong to any political party and he is not connected with the Lok Sevak Sangha (Qs. 8-10). He talks of a. Hal Satyagraha launched by his villagers. The sale or purchase of hal or jowal or plough was stopped and the Lok Sevak Sangha came forward to help the villagers. The Government was responsible for this mischief. The villagers including Lakshman went out in a procession. The Hal Satyagraha launched by the Lok Sevak Sangha under the leadership of Arun Chandra Ghose was successful and the villagers got back their ploughs. The villagers were happy as they could cultivate their lands (Qs. 562-575). Lakshman had also joined a Satyagraha in Calcutta as a supporter of the Lok Sevak Sangha and had courted imprisonment. Arun Chandra Ghose arranged for the release of those arrested. Arun Chandra Ghose also met them in prison (Qs. 576-588). This was a Satyagraha staged in Calcutta under the banner of the Lok Sevak Sangha in November/December 1967. The purpose of the Satyagraha is described by Lakshman in these words: Some improper act was done by some Government. Some one by the name of Dharma Vira did something wrong. That Satyagraha was in that connection. Lakshman courted imprisonment and was in jail for 10 or 15 days (Qs. 526-553).

The depositions discussed above are enough'' to show that Lakshman is an active worker of the Lok Sevak Sangha and Rajani is a sympathiser of that organisation. That is why it is all the more difficult for me to accept their uncorroborated evidence of receipt of money from Budheswar for the Chhou party to mobilize support for the Congress candidate.

I, therefore, hold that the allegations in para. 12(h) of the petition have not been proved.

Let us now take up sub-para, (g) of para. 12. In this subparagraph it is alleged that the Respondent No. 1 deputed Sambhu Mohato of village Ankrow to arrange for tea, pakora etc. on February 9, 1969, for entertainment of the voters who were to vote in his favour. The Respondent No. 1 gave Rs. 15 to Sambhu Mohato for that purpose. Sambhu Mohato discharged his responsibility and some of the voters were seen entertaining themselves with materials supplied by him.

69.. The substance of para. 12(g), therefore, is that Sambhu Mohato was asked to entertain voters who were to vote for the Respondent No. 1. Now, Section 123(l)(A)(b) of the Representation of the People Act, 1951, provides, inter alia, that bribery is any gift, offer or promise with the object directly or indirectly of inducing an elector to vote at an election. Section 123(B)(h) provides, inter alia, that bribery is the receipt or agreement to receive any gratification by any person whomsoever for himself or any other person for voting or inducing or attempting to induce an elector to vote. The explanation to these provisions stipulates, inter alia, that the term ''gratification'' is not restricted to pecuniary gratification or gratification estimable in money and it includes all forms of entertainment and all forms of payment for reward.

On the pleadings, therefore, Sambhu Mohato is an accomplice. In his evidence he says that with the sum of Rs. 15 (which he received from Budheswar) he did not entertain only himself but called a few persons in the village and along with them consumed tea, pan, pakora etc. These other persons are Bhusan Mohato, Surendra Mohato, Pelu Mohato and Bhandu Mohato (Qs. 47-49). Budheswar gave him two five-rupee notes and five one-rupee notes (Q. 181). Bhusan Mohato has said, however, that Budheswar gave five two-rupee notes and one five-rupee note (Q. 241).

There are contradictions between Sambhu and Bhusan as to how the money was utilized. Sambhu''s evidence on this aspect of the matter I have already discharged. Bhusan''s evidence is different. His definite case is that with the sum of Rs. 15 biris, pans and matches were purchased and about 20 or 25 voters were entertained with these articles: vide Qs. 30, 92 and 242. Bhusan before casting his vote was given a bundle of biris, ''one match'' and a pan. He received articles worth forty paise that was sufficient for him for a day. He expected to get something more from Sambhu; but as Sambhu was the head-man of the village he did not demand any accounts (Qs. 271 and 381).:.

It is clear from the depositions discussed above that both Sambhu and Bhusan are accomplices. One accomplice cannot corroborate another. In any event, Bhusan did not corroborate Sambhu on material particulars. Moreover, Bhusan''s name does not appear in the petition at all. There is no other independent corroboration of their evidence. Secondly, Sambhu appears, to be a supporter of the Lok Sevak Sangha and it is, indeed, strange that he changed his loyalties in lieu of a few pieces of pan, biri and pakora. Sambhu attends meetings of the Lok Seyak Sangha (Qs. 204-207). He is aware of the benefits conferred on villagers by the Hal Satyagraha'' of the Lok Sevak Sangha and has reasons to be thankful and obliged to Arun Chandra Ghose, a leader of the Lok Sevak Sangha (Qs. 211-229). Naturally, I have to approach Sambhu''s evidence with caution and this cautious approach prompts me to hold that the allegations in para. 12(g) have not been established in this Court. Mr. Somnath Chatterjee said that Sambhu did not belong to any political party and I should hold that he had spoken the truth. I am not impressed by this argument. From Sambhu''s demeanor on the witness-box I was convinced that his sympathies were overwhelmingly in favour of the Lok Sevak Sangha.

I now proceed to para. 12(j) of the petition. Here, it is alleged that a few days before the poll the Respondent No. 1 went to the village Bikramdih. He met Iswar Mohato and others of that village and gave Rs. 15 for organizing the Yubak Sangha of that village and promised to give a further sum of Rs. 40 on the understanding that the votes of the villagers would be secured for the Respondent No. 1.

It is to be noted that the expression ''a few days before the polling'' is rather vague. Secondly, the expression ''Iswar Mohato and others'' is also vague particularly in view of the fact that Kandru Majhi, the Petitioner, has stated before me who these ''others'' were. According to him, he gathered the information relating to the allegations in para. I2(j) from Iswar Mohato and Gopal Mohato (Q. 266). But Gopal Mohato''s name he has not mentioned in the petition.

That Iswar is an accomplice appears from the pleading itself. Gopal is also an accomplice: vide Gopal''s depositions, Qs. 19 and 20; but there is no independent corroboration of their evidence. Moreover, the most glaring contradiction between Gopal and Iswar is on th.9 purpose for which Budheswar''s money was to be utilized. Gopal says that Budheswar wanted to know whether ''we had any organisation or not''. Gopal told him that they had an. organisation. Then Budheswar gave them money and he also asked them whether they had made up their minds to cast their votes in favour of any particular candidate. They told Budheswar that they had not taken any decision. Budheswar then asked them to cast their votes in his favour. The sum of Rs. 15 was still lying with them as the idea was to purchase musical instruments for the Kirtan party upon realizing the promised balance of Rs. 40 from Budheswar. They might have also purchased a ''bed-sheet'' for the Kirtan party. No individual member of the Kirtan party was to be benefited by Budheswar''s money (Qs. 33, 37-39 and 55-58). Let us compare these answers with those of Iswar Mohato, the principal witness of the Petitioner, on this paragraph. According to Iswar, Budheswar said, "It is good that you have got a village party and it is Yubak Sangha Dal� a Kirtan party. Please see that the members of the Yubak Sangha Dal cast their votes in my favour and you also give your votes to me. I shall give some money for your Yubak Sangha Dal party." Iswar then asked the three other members of the Kirtan party present there, namely, Gopal, Kulada and Amulya, whether they were ready to accept the money and cast their votes as requested by Budheswar. All the three persons agreed to the proposal. Gopal, Kulada and Amulya also told Iswar that with Budheswar''s money various things for the Kirtan party, such as, chadar, khol and kartal could be purchased. Budheswar thereafter said to Iswar that as he had not sufficient money with him at that time he wanted to give Rs. 15 and promised to pay Rs. 40 after the election (Qs. 9-15).

When I heard the above answers of Gopal and Iswar, it seemed to me that Budheswar was probably making donations to the Kirtan party to mobilize support for him in the village with the help of that party; but the answers which Iswar Mohato gave to Qs. 38-43, did not fit in with this theory. These questions and answers are as follows:

Q. 38. Thereafter having the discussions with the other persons what step did you take ?

I told them, "since money has been accepted I request all of you to be present at the polling station on the date of election as early as possible and here are the papers which were handed over to me by Budheswar and see it carefully and give your votes in favour of this symbol on the date of election"

Q. 39. So altogether there were 16 persons, about 15 persons of the Kirtan party and yourself the reporter of the negotiation ? That is so.

Q. 40. And for these 16 persons Budheswar Majhi paid Rs. 15 in the first instance and promised to pay another sum of Rs. 40 later on, is that right ?

That is so.

Q. 41. So for the votes of 16 persons altogether he had made an estimate of spending Rs. 55, is that your evidence ?

That is so.

Q, 42. To purchase the votes of 16 persons Budheswar agreed to spend Rs. 55, is that what you want to say ?

Yes.

Q. 43. Then between the date of the election and the day on which you took the money, what were your activities in connection with the election ?

I asked the members of the Kirtan party to be present at the polling station on the date of polling as early as possible. And they should go there after taking their meals. I told them that I would also be present at the polling station as early as possible and would explain to them for whom to cast their votes.

Questions 38 and 43 were put to Iswar Mohato by the counsel for the Petitioner and the other questions were put by me. One can understand a proposal for a donation of Rs. 55 to the Kirtan party in order that the members of the party could be purchased to work for the Congress candidate ; but it is difficult to believe that Budheswar Majhi would be willing to spend Rs. 55 to, purchase only 16 votes.

There is another reason why I am hesitant to accept the uncorroborated testimonies of Iswar Mohato and Gopal Mohato, Iswar has frankly told me that in his locality Arun Chandra Ghose, a leader of the Lok Sevak Sangha, is very widely respected and whenever he addresses any meetings, "we go there and others also go": vide Qs. 327-334. Iswar''s answer to Q. 335 is still more interesting. The question and the answer are as follows:

Why have you come (to Calcutta), is it because Arun Babu had told you to come, because you have love and respect for Arun Babu, is that why you have come ?

I have come here out of love and respect that I have for him. Because he conducted the Hal Satyagraha and did many other things, we listen to him whatever he tells us to do.

The same difficulty arises with respect to Gopal. Mohato. Gopal Mohato is not aware of the existence of any political party in his area. He has not heard of the Congress party, the Communist party or the Praja Socialist party ; but he knows Aruri Chandra Ghose and he also knows that there is a party called a Sangha (Qs. 111-119 and 235-239). Later on, he admits that he knows the name of the Congress party, but they do not hold any meetings in his village. Meetings are held by the Lok Sevak Sangha which are addressed by Arun Chandra Ghose and he attends those meetings (Qs. 253-257). Gopal knows about the Hal Satyagraha launched by Arun Babu and others although he does not precisely know how it was conducted. His answers to Qs. 345-347 are these:

Q. 345. You told earlier that due to that Satyagraha your hal was restored to the people of Purulia ? Yes.

Q. 346. And did you also get back your hal ? Yes.

Q. 347. So, you have reasons to be grateful to Arun Chandra Ghose ? Yes. Arun Babu worked for our cause and he brought me here for the purpose of giving evidence.

In Q. 360, Gopal says that sometimes he goes to Ankrow if sent for by Arun Babu and this shows how close he is to Arun Chandra Ghose.

In these circumstances, it is to my mind most unsafe to accept the evidence tendered in Court by Iswar Mohato and Gopal Mohato without independent corroboration leaving aside other deficiencies which I had noticed.

In para. 12(k) of the petition it is alleged that on February 8,1969, the Respondent No. 1 went to Babulal Modak of Bandwan and told him that he would have to prepare tea and pakora etc. at his election camp at Bandwan. And the Respondent No. 1 gave him Rs. 40 for expenses for the materials and promised to give him Rs. 10 as remuneration. Babulal Modak did his work at the camp of the Respondent No. 1 and spent the sum of Rs. 40 on purchase of oil, besan, tea, sugar, milk etc. After the poll Babulal Modak repeatedly asked for his remuneration of Rs. 10, but the Respondent No. 1 did not give it to him. Babulal then made a petition to the Secretary of the Lok Sevak Sangha for his help in the matter. In para. 12(1) it is stated that on the day of poll, that is, on February 9,1969, at Bandwan, Babulal Modak was preparing tea, pakora etc. with temporary establishment in the Congress camp which was opened on behalf of the Respondent No. 1. During the polling hours Gurupada Haider, Golak Nag, Lalit Haider, Santosh Das and others who were in charge of election work of the Respondent No. 1 were seen asking the voters to come to this camp and to entertain themselves with tea, pakora etc. free of costs and to give their votes in favour of the Respondent No. 1. Being enticed in this way many of the voters indulged in enjoying whatever they could get free of cost.

Babulal Modak has deposed in support of these allegations and the relevant documents have also been tendered; but Babulal''s case has been considerably damaged by other witnesses of the Petitioner as well as the Petitioner himself. Fatik Chandra Haider was one of such witnesses. He was asked in Q. 87 what Babulal Modak was doing in the shop for preparing tea and pakora very close to the Congress polling camp. Fatik''s answer is: Lalit Haider, Golak Nag and Prahlad Haider were making all arrangements and were paying for preparation of tea and pakora there; they were bringing people and asking them to take tea and pakora free of charges." This is not the case made in the petition. Nor is it the case-of Babulal Modak.

Babulal Modak in Q. 318 is categorical that on the day of election he had supplied tea and pakora from his shop to the voters quite openly and there was no secrecy about it. Kandru Majhi, the Petitioner, was the contesting candidate and the person most vitally affected by the activities of Babulal Modak. On February 9,1969, he had seen Babulal Modak. He had to pass along Babulal''s shop to go to the polling booth at Bandwan. He saw Babulal while going to that booth and coming back from the booth in his shop at the side of the road (Qs. 956-958). Lalit Haider, Golak Nag and Santosh Das of the Congress camp were collecting the voters in groups of 10 or 15. Kandru''s own workers were also engaged in similar type of activities; but Kandru did not see Babulal Modak or any one else of the Congress party entertaining voters with tea and pakora (Qs. 977-979).

Babulal is an accomplice. Fatik Haldar did not fully corroborate his evidence as he said that the Congress workers whom he had named were paying for the tea and pakora that the voters were having from Babulal''s shop. There is no evidence that such payments, if any, were made with Budheswar''s consent. There is also No. evidence that by reason of such payments, if any, the result of the election was materially affected. But there was another witness named Sasibhusan Mohato, admittedly a friend of Kandru Majhi and a sympathiser of the Lok Sevak Sangha, who was called to corro1 borate Babulal. Sasibhusan Mohato proved himself to be thoroughly unreliable as we shall presently see. Sasi saw the entertainment of voters with tea and pakora prepared by Babulal. He thought, however, that although such entertainment was going against the interest of his friend Kandru Majhi, the result of the election would not be affected by what was happening in one of the polling booths only (Q. 491). This, answer of Sasi gave me the impression that Sasi at least knew that what was happening was not desirable and he realised that the activities of Babulal and the Congress workers, who had resorted to entertainment of voters or a large scale, were going against the interest of Kandru Majhi. Sasi thereafter traveled on a bicycle with Kandru Majhi who was going to other polling stations for more than three hours, but in course of his conversation with Kandru on the bicycle for this long period he did not tell Kandru that the Congress workers were indulging in entertaining voters near the polling booth at Bandwan with the assistance of Babulal Modak. The reason that he gives for his ominous silence is, indeed, strange.. He says that, although he is a supporter of Lok Sevak Sangha at heart and regarded I Kandru Majhi as his friend, Kandru did not extend to him the treatment that he deserved. He did not give him any responsible work in such a big matter as an election (Q. 499). This is an explanation which did not impress me at all particularly in view of the detailed description of how the entertainment was taking place in the Congress camp given by Sasibhusan Mohato in his evidence: vide Qs. 15-76. In Q. 77, Sasi says that he had observed the activities of Babulal and the Congress workers for about five minutes. Then again, in Qs. 501 and 502, when he was asked why he did not feel inclined to speak to Kandru Majhi about the illegalities within the Congress camp at Bandwan at a time Kandru chose him as his companion to visit various polling stations traveling with him on the same bicycle. His answer was, "There was no necessity of telling that to him from my side. Moreover, why should he listen to me. I was an ordinary public." I watched Sasi very closely on the witness-box when he was making these statements. I was convinced that he was telling an untruth, and whether or not the allegations in para. 12(k) and (1) were true at least Sasibhusan Mbhato had not seen any of the activities either of Babulal or of the Congress workers. From this point of view it is impossible for me to hold that Sasibhusan Mohato''s evidence has any corroborative value.

The next aspect of the matter is that Babulal himself has damaged his own case. In Qs. 11 and 12, he has said that the day before the election Budheswar Majhi called him at the place of Golak Nag. There Budheswar told him: "Tomorrow the election is going to be held. I am a candidate fighting that election. The voters are to be entertained with tea and pakora. You prepare pakora and tea to be supplied to the voters." Budheswar gave him Rs. 40 and promised to give him a further sum of Rs. 10 as remuneration for his labour. Babulal adds that at this place of Golak Nag many other persons whom he did not know, were present.

It is interesting to compare these statements of Babulal with a document marked Ex. C. This is a petition addressed to Arun Chandra Ghose, leader of the Lok Sevak Sangha. In this petition Babulal sets out the facts relating to his transactions with Budheswar for supply of tea and pakora to voters and appeals to Arun Chandra Ghose to help him realize his remuneration of Rs. 10 which Budheswar promised to pay him. In this document dated April 26, 1969, the place of Golak Nag is not mentioned at all. On the contrary, it is stated that on February 8, 1969, Budheswar came to Babulal room and the discussions between Budheswar and Babulal took place in that room.

Secondly, in Ex. C it is stated that Budheswar requested Babulal to open a shop for tea and pakora at Budheswar''s expense in the voting camp of Budheswar at Bandwan; but in Q. 55 Babulal has said that he did not have to shift his own shop but went on supplying tea and pakora horn, his own shop which was by the side of Budheswar''s camp.

Then again, Babulal does not also know whether he had supplied tea and pakora to Budheswar''s workers or to voters. In fact, he does not know who were the workers and who were voters (Q. 115). He knows only one or two voters in his village. (Q. 115A).

The position, therefore, is that for proving the allegations in para. 12(k) & (1) the Petitioner has produced Babulal Modak who is an accomplice. An attempt was made to corroborate his evidence by bringing Fatik Haider and Sasi Mohato, but they did not succeed in creating a favorable impression on my mind. Moreover, Babulal''s own evidence is full of contradictions. In these circumstances, I do not think that it will be proper for me to hold that Budheswar has committed the corrupt practices alleged in para. 12(k) &: (1) of the petition.

Lastly, Mr. Chatterjee for the Petitioner referred to the allegations in para. 12 (o) of the petition. In this sub-paragraph it is alleged that the Petitioner on February 9,1969, went to Dhadka (Booth No. 75) to inspect the polling. He reached Dhadka at about 11 a.m. His polling agents and workers informed him that as the polling was going in his favour, agents and workers of the Respondent No. 1 became desperate and started canvassing unchecked inside the booth. The presiding officer was paying no heed to complaints made on behalf of the Petitioner. The Petitioner''s agents an& workers protested against such conduct. But the persons who are working for the Respondent No. 1, were exhibiting show of violence and creating a reign of terror to bully the voters in supporting their candidate. The Petitioner upon hearing all this was approaching the presiding officer; some persons named in the said sub-paragraph jumped over him and began pushing him rudely to oust him from the polling station. After they had pushed the Petitioner to some distance he was rescued by his party-men. The Petitioner came back from that place and lodged a complaint at the Police. Station at Bandwan, but after this incident the voters became afraid and the Petitioner had to suffer materially.

Several witnesses have examined on this sub-paragraph as in- the cases of the other sub-paragraphs ultimately relied on by the Petitioner. But for purposes of the present election petition there is no need to discuss the evidence of these witnesses or the discrepancies between the documents tendered and the pleadings or those between the documents and the oral evidence. There is no averment nor is there any proof that the alleged incidents at Dhadka had occurred at the instance of or with the consent of Budheswar Majhi, the returned candidate. Naturally, the allegations have to be judged in the light of the provisions in Section 100(l)(d)(ii) of the Representation of the People Act, 1951. In other words, the election of the returned candidate cannot be declared void unless it is proved that the result of the election has been materially affected by the corrupt practices alleged to have been committed at Dhadka by the agents of Budheswar Majhi. The pleading in para. 12(o) includes two averments, namely, (i) the polling was going on in favour of the Petitioner and (ii) the Petitioner has suffered materially by reason of the incidents alleged therein. None of these averments has been proved by the Petitioner before me although the burden of proof lay heavily on him. In Paokai v. Rishang A.LR. 1966 S.C. 663 the election of the returned candidate from a Parliamentary constituency of Manipur was challenged. It was proved that by change of certain polling centers and owing to firing by certain hostile elements a number of voters probably failed to record their votes which they would have done if the polling had gone on smoothly and according to rules, but the election Petitioner failed to prove that by such circumstances the election had been materially affected. The Supreme Court has held in these circumstances that the election of the returned candidate cannot be declared void. The Supreme Court has said that the fact that the election is in contravention of the Act and the Rules does not alter the position with regard to Section 100(l)(d)(iv) of the Act. That section requires that the election Petitioner must go a little further and prove that the result of the election had been materially affected. The Supreme Court points out that the burden of proof in England in the exact reverse of that laid down by the Indian statute. There the returned candidate has to prove that the non-compliance or mistake did not affect the result of the election. In India, the burden is upon the election Petitioner to show affirmatively that the result of the election has been materially affected. In such cases, says the Supreme Court, the Courts have to see whether this burden has been successfully discharged by the election Petitioner by demonstrating to the Court, either positively or even reasonably, that the poll would have gone against the returned candidate if the breach of the rules had not occurred and proper poll had taken place at the polling stations including those at which it did not. The Supreme Court has said further that it is no doubt true that the burden which is placed by law is very strict, even if it is strict the Courts must apply it; and it is for the Legislature to consider whether it should be altered, In the earlier case of Vashit Narain Sharma Vs. Dev Chandra and Others, also it was laid down that the onus of proving that the result of the election had been materially affected lay upon the Petitioner.

In the instant case, assuming that all the allegations of sub-para, (o) of para. 12 are true, the Petitioner has failed to discharge the onus of proving that the result of his election has been materially affected by illegalities committed by agents and workers of the returned candidate. In these premises, it is wholly unnecessary for me to give my finding on the facts alleged in para. 12(o) Incidentally, it may be rioted that the Petitioner lodged a complaint at the local Police Station and a criminal case was also started against certain persons. But that case was subsequently withdrawn. Indeed, from the evidence on record it cannot be said with certainty that Kandru Majhi was assaulted in the manner described by him. Aran Chandra Ghose has said in Q. 3 81. that in the evening of February 9 he did not see any signs of injury on the body of Randru Majhi.

Mr. Somnath Chatterjee, the counsel for the Petitioner, did not rely on any other allegation made against Budheswar Majhi in the petition. Briefly speaking, the position is that the allegations of corrupt practices [leaving aside for the time being those in para. 12(o) & (q)] ultimately pressed by the counsel for the Petitioner were sought to be proved either by accomplices who were not corroborated at all or by accomplices who were claimed to be corroborated by unreliable or partisan witnesses. Moreover; the accomplices themselves have made inconsistent statements further contributing to their unreliability. So far as the allegations in para. 12(o) & (q) are concerned, the Petitioner has failed to prove that the alleged incidents had materially affected the result of the election and it became irrelevant for me to consider whether the statements made therein were true.

In these premises, this election petition is dismissed. But I shall, deprive the Respondent No. 1 of the costs of this petition as he has failed to establish his defence of alibi. Each party will/therefore, bear and pay its own costs.