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SUPREME COURT OF INDIA
D.G. PALEKAR, P.N. BHAGWATI AND V.R. KRISHNA IYER, JJ.
Rahim Khan Appellant
Versus
Khurshid Ahmed and others, Respondents.
Civil Appeal No. 816 of 1973, D/- 8-8-1974.
– every witness need not be mentioned as a sources and even source informant need not be examined necessarily whether the omission to do so in a given case reflects on the credibility of the evidence depends on the facts and circumstances of the case. It depends on the over all circumstances and the fairness of the trial –
– neither Section 87 nor Section 83 nor even Rule 94A and Form 25 requires this drastic attitude, as held in Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290, it is required that source of information to be mentioned at the earliest stage and it is a wholesome rule to prevent after tought. But every witness need not be mentioned as a source and every source informant need not be examined necessarily. Whether the omission to do so in a given case reflects on the credibility of the evidence depends on the facts and circumstances of the case. It depends on the overall circumstances and the fairness of the trial.
– there is no golden rules for appraising human testimony. In assessing its worth Judges can err honestly just as witness can make honestly mistaken statements under oath. The extraction of what should constitute the credible foundation of judicially sound judgment an art which nothing except sound commonsense and prudence combined with experience is can teach. A sound judgment must disclose a fair attempt to “separate the grain from the chaff”
– Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290. It is not required that a witness must be proved to be a perjurer because his evidence is discarded. It may be enough if his evidence appears to be quite improbable or to spring from such tainted or biased or dubious a source as to be unsafe to be acted upon without corroboration from evidence other than that of the witness himself.
The evidence of every witness is an election case cannot be dubbed as intrinsically suspect or defective. It cannot be equated with that of an accomplice in a criminal case whose testimony has according to a rule of practice though not of law, to be corroborated in material particulars before it is relied upon, as held in Pratap Singh v. Rajinder Singh, AIR 1975 SC 1045.
– as held in Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290 = 1975(1) SCR 643, an election once held should not be treated in a light hearted manner and the Court should insist on clear and cogent testimony compelling it to uphold the corrupt practice alleged against the returned candidate. So has been the view in Baburao Bagaji Karemore v. Govind, AIR 1974 SC 405 = 1974(2) SCR 429, that the Court should examine the evidence having regard to the fact that where the electorate has chosen their candidate at an election their choice is not to be lightly upset. Also held in Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, that in an election contest it is the public interest, not the parties claims, which is the paramount concern. These decisions were referred to with approval in the case of Balwan Singh v. Prakash Chand, AIR 1976 SC 1187.
– the Court will be cautious and circumspect in accepting the oral testimony. In Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290 = 1975(1) SCR 643, the Supreme Court emphasised the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a-dozen witnesses apparently respectable and dis-interested to speak to short of simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no X-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been intended through the judicial apparatus. It was regarded to be extremely unsafe, in the present climate of kilkenny cat election competitions and partism witnesses wearing robes of veracity, to upturn a hard won election victory merely because lip service to corrupt practice has been rendered by some sanctimonious witnesses. The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man’s public life. Hence held in Kanhaiyalal v. Mannalal, AIR 1976 SC 1886, that the oral testimony will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable source from an independent source.
– it is unsafe to accept oral evidence in an election petition at its face value without looking for assurance from some surer circumstances of unimpeachable documents, as held in Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290 = 1975(1) SCR 643; Kanhiya Lal v. Manna Lal, AIR 1976 SC 1886 = 1976(3) SCC 646. It was held in Amolak Singh v. Bhagwandas, AIR 1977 SC 813, that the oral evidence lacked assurance from any unlying circumstances or unimpeachable documents.
–On the basis of the decision in Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290 = (1975) 1 SCR 643; D. Venkata Reddy v. R. Sultan, AIR 1976 SC 1590 = (1976) 3 SCR 445, Ramjit Prasad Singh v. Ram Bilas Jha, AIR 1976 SC 2573 = (1977) 1 SCR, 741, it could be safely stated that the charge of bribery is in the nature of a criminal charge and has got to be proved beyond doubt as held in Ramanbhai Nagjibhai Patel v. Jasvantsingh Udesingh Dabhi, AIR 1978 SC 1162, the standard of proof required to prove the charge beyond doubt. Evidence merely probabilising and endeavouring to prove the fact on the basis of preponderance of probability is not sufficient to establish such a charge. See also decisions in Ram Jiwan Singh v. Sis Ram, AIR 1976 SC 932; Amolak Singh v. Bhagwandas, AIR 1977 SC 813.
– it is not that every help by a candidate to fellow candidate constitutes corrupt practice. Such financial aid must be to induce the latter not to withdraw from the election, as held in Rahim Khan v. Khurshid Khan, AIR 1975 SC 290. The narrow point that survived for the scrutiny of the Supreme Court was as to whether the appellant did commit the corrupt practice under Section 123(1), by placing at the disposal of candidate (respondent No. 9), Car DLF 675 and promising him the hire charges and running expenses thereof with a view to his continuance as candidate, the ultimate gain being the seduction of the Harijan electors away from the Congress candidate. The charge could not be brought home. As in the case of Chanda Singh v. Shiv Ram Verma, AIR 1975 SC 403, if a defeated candidate can bribe into a few unscrupulous fellow candidates who have miserably failed at the polls and secured only paltry votes, any returned candidate can put to peril. The Court cannot accept at face value witnesses who have no in owning that they are conspirators in bribery for the sake of votesplitting at the elections. See also the decision in Abdul Hussain Mir v. Samsul Huda, AIR 1975 SC 1612. See also decision in Shri Ram Dev v. Sarala Prashar, 1972(3) SCC 862.
– it is not uncommon to find that during elections posters and handbills are printed without complying with the requirements of Section 127–A. The reason as pointed out in Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290 is that there is no agency of the law which takes prompt action after due investigation, with the result that no printer or candidate or other propagandist during elections bothers about the law and he is able successfully to spread scandal without a trace of source, knowing that nothing will happen until long after the election when in a burdensome litigation the question is raised. Hence it was suggested in Kanwar Lal Gupta v. Amarnath Chawla, AIR 1975 SC 308, that there should be some independent semi–judicial instrumentality set up by law, which would immediately investigate, even while the election fever is on and propaganda and canvassing are in progress and the evidence is raw and fresh how the offending hand bills and posters have come into existence who has printed them and who is responsible for getting them printed for ‘violations thrive where prompt check is unavoidable’.
Judgment
KRISHNA IYER, J:- By a plurality of less than 2000 votes the appellant was declared elected from the Nuh constituency to the Haryana Assembly in the general election held on March 11, 1972. He was an Independent candidate while his main rival; the first respondent, represented the Indian National Congress. There were three others in the field two of whom were Independents and the third a Jan Sangh nominee- all of them polled poorly. In the electoral history of the constituency fickle fortune has been smiling now on the appellant, now on the first respondent. It also happens that while the appellant had been a Deputy Minister when he was elected to the Haryana Legislative Assembly last from the same constituency in 1967, at the following general election in May 1968 to the same Assembly (before its term the Assembly was dissolved and the non-Congress Government went out of office) the first respondent was elected and he became a Member of the Cabinet formed by the Congress party. The next election fell in 1972 where both figured as combatants from Nuh and we are concerned with the validity of the result declared in favour of the appellant by the returning officer in the present appeal, the High Court having set aside the election.
2. It is apparent that the competitive politics of the Nuh constituency has expressed itself through the appellant and the first respondent for quite a long time now and, as the voting figures of the latest poll shows the contest has been contentious and close. In such battles of the ballot where personal feuds foul the air, the decencies and norms set by the law may often be the first casualty. Anyway the disappointed first respondent hastened to challenge the appellant s election on various grounds of "corrupt practices". The High Court has upheld a few of them and voided the appellant s election, a miss being as good as a mile. The campaign pollutants must be kept down at the polls if electoral disenchantment is not to grip the general community. The Court, in this regard, is the sentinel on the quivive.
3. Shri Bindra, learned counsel for the appellant, has argued the case in minute detail, countered by Shri Sharma, for the first respondent; but since at the appellate level jejune infirmities and probative trivialities may not tilt the scales even on the principle of Juncta Juvant, we will focus largely on the major circumstances. The correct appellate perspective in an election case has been indicated by this Court and we are bound to set out our sights on those lines. In Laxminarayan v. Returning Officer, AIR 1974 SC 66 at p. 78 the implied limitations on the appellate power under Section 116-A were stated thus:
"It can reappraise the evidence and reverse the trial court s findings of fact. But like any other power it is not unconfined: It is subject to certain inherent limitations in relation to a conclusion of fact. While the trial court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanour, the appellate Court is confined to their evidence on record.
x x x x
In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this he must do something more than merely ask for a reassessment of the evidence. He must show wherein the assessment has gone wrong."
In Karemore s case AIR 1974 SC 405 at pp. 413, 420 this position was re-stated thus:
"Before a finding of fact by a Trial Court can be set aside it must be established that the Trial Judge s findings were clearly unsound, perverse or have been based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies. This is not to say that a Trial Judge can be treated as infallible in determining which side is indulging in falsehoods or exaggerations ........
x x x x x x x
While, as we have said earlier, it is open to this Court to reappraise the evidence and consider the propriety, correctness or legality of t
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