1974 Supreme(SC) 329

SUPREME COURT OF INDIA
H.R. KHANNA, M.H. BEG AND V.R. KRISHNA IYER, JJ.
Vatal Nagaraj, Appellant
Versus
R. Dayanand Sagar, Respondent.
Civil Appeal No. 1738 of 1973, D/-11-10-1974.

Headnote:appreciation of evidence — power of the supreme Court on appeal - evidence and proof — variance between pleading an proof — particulars of corrupt practices

       

       – where the High Court (Trial Court), has had an overall view of the case through the very process of oral and documentary unfolding, that panoramic perception cannot be equated with the studious perusal of the printed record by a Higher Court. Where the Trial Court has watched the delivery of testimony by the witnesses, some with equivocating unveracity, others with nervous truthfulness or confident glibness, its opinion on credibility is entitled to much credit at the appellant stage. Of course, even among the judiciary a subjective factor in judging men and maters may creep in and so complete dependence on the assessment of human candour and cunning by trial judges can degenerate into legal superstition, as held in Vatal Nagaraj v. R. Dayanand Sagar, AIR 1975 SC 349. As held in Gangadhar Yeshwant Bhandare v. Erasmo De Jesus Sequiria, AIR 1975 SC 972, the Supreme Court in an election appeal normally does not interfere with this appraisement of the evidence of the witnesses by the High Court unless such appraisement is afflicted with some glaring infirmity. See also decision in Indira Nehru Gandhi . The Statement regarding distribution of pamphlets in the case of Kanhaiyalal v. Mannalal, AIR 1976 SC 1886, appeared to the Supreme Court open to grave suspicion rather smacked of padding. In the case of Virendra Kumar v. Vimal Kumar, AIR 1976 SC 2169, the first and foremost question which was required to be determined was whether it was the appellant who got the offending leaflet printed. It was felt necessary to go into the question of printing of the leaflet as the finding in respect thereof is bound to have, as held in Prabhu Narayana v. A.K. Srivastave, AIR 1975 SC 968 = 1975(3) SCC 788, an important being on the question of its distribution either by the appellant or with his consent and a discussion of evidence regarding printing provides a satisfactory method of assuring oneself as to whether the distribution was made, as alleged, by the appellant or with his consent. In this case it was found on evidence that the appellant himself was responsible for the publication of the leaflet, which means distribution of the printed material. The Supreme Court, with reference to unimpeachable, direct and circumstantial evidence could show that the High Court failed to consider in its proper perspective that the only conclusion v. Raj Narain, AIR 1975 SC 1590. As held in the case of Pratap Singh v. Rajinder Singh, AIR 1975 SC 1045, it is not the practice of the Supreme Court to reasses evidence or to perform the duties of the Trial Court, even in election first appeals, unless no other course is left open to it, but under factual considerations, it was held that it was a fit case to be sent back to the High Court for reconsideration by the High Court after recalling such witnesses as may be considered necessary. In the case of N. Vimala Devi v. Madhusudhana Reddy, AIR 1975 SC 1135, on re-appreciation of the evidence, the Supreme Court came to the conclusion that it is satisfactorily established that pamphlets were printed and distributed at the instance of the respondent. As held in Ramji Prasad Singh v. Ram Bilas Jha, AIR 1976 SC 2573, in the absence of any evidence of impeachable nature and particularly in the absence of any contemporaneous complaint in regard to the allegation of bribery, it would be unsafe to accept the bare word of the appellant and is witnesses on such a serious charge. The bribery is quasi-criminal in nature and it was held that such a charge must be proved not by a mere preponderance of probabilities but beyond a reasonable doubt. That proof was found lacking in this case, which could reasonable have been grieved at was that the distribution of the leaflet (which has not been disbelieved by the High Court to have been made), was by and with the consent of appellant or his election agent. Also held in Nongtomham Ibomeha Singh v. Leisangthem Chandramani Singh, AIR 1977 SC 682 that the Supreme Court should not normally interfere in an election appeal with the High Court’s oral appraisement of oral evidence of witnesses unless such appraisement is vitiated by some glaring infirmity. In this case no such infirmity could be found. There is total consensus of judicial opinion that a charge of corrupt practice under the Act has to be proved beyond reasonable doubt and the standard of proof in the same as in a criminal case as held in Mahant Shree Nath v. Choudhury Ranbir Singh, 1970(3) SCC 647. In the case of A Younus Kunju v. R.S. Unni, AIR 1984 SC 960, the High Court applied the right standard in the matter of appreciation of the material placed before it and has came to hold that the allegations of corrupt practice within the meaning of Section 123(4) of the Act, has not been proved. In such a situation as pointed out in Boddepalli Rajgopala Rao v. N.G. Ranga, AIR 1971 SC 267, the Supreme Court observed that the finding of the learned trial Judge is based upon appreciation of evidence of the witnesses in the light of probabilities. A Charge of corrupt practice under the Act must be established by clear and cogent evidence. When the Court of first instance on a consideration of the evidence of the witnesses has refused to place any reliance upon their testimony the burden lying upon the party setting up a plea of corrupt practice becomes no lighter in appeal. The charge cannot be held established merely upon suspicion or preponderance of probabilities. Unless the appellant establishes that the appreciation of evidence was vitiated by gross misreading or misconception of the evidence or because of failure to consider important pieces of evidence which had a bearing on the charge or because of serious irregularities in procedure which amount to a denial of a fair trial the appellate Court will not proceed to reappreciate the evidence on which the findings are recorded by the Court of first instance on the credibility of witnesses. As held in the case of Mohd. Yonus Saleem v. Shivkumar Shastri, AIR 1974 SC 1218, in the matter of appreciation of oral testimony in an election dispute, the Supreme Court in an appeal under Section 116A, must be convincing and clinching reasons to take a contrary view from that of the High Court. It is not enough that another view is merely possible to take on the oral evidence. Strict proof of the allegations is called for and in this case the Supreme Court held that the High Court rightly declined to accept the oral evidence of the appellant’s side and rightly preferred that on the respondents side. As held in the case of Shreewant Kumar Choudhary v. Baidyanath Panjair, AIR 1971 SC 717, the practice of the Supreme Court is not to re-appreciate the evidence, especially on a question of corrupt practice. In Meghraj Patodia v. R.K. Birla, AIR 1973 SC 1295, it was held that taking into consideration the fact that a plea of corrupt practice is somewhat akin to a criminal charge and further fact that election case are tried by experienced Judges of the High Court, the Supreme Court ordinarily does not go behind the findings of the fact reached by the trial Judge who had the benefit of seeing the witnesses examined before him unless there is something basically wrong in the conclusions reached by him or the procedure adopted by him. This is not a rule of law but a rule of prudence. These observations were quoted and followed in the case of Pampakavi Rayappa Belagali v. B.D. Jatti, AIR 1971 SC 1348 = 1971(2) SCR 611. In the case of Sumitra Devi v. Sheo Shankar Prasad Yadav, AIR 1973 SC 215, the Supreme Court was satisfied that the High Court has taken into consideration all the material circumstances and has appreciated the evidence from the correct prospective. It has been the consistent practice of the Supreme Court not to interfere with the findings on questions of fact unless there is some grave or palpable error in the appreciation of the evidence on the basis of which the finding are arrived at. The decision in Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 was followed. In the case of Ram Awadesh Singh v. Sumitra Devi, AIR 1972 SC 580, the charge of corrupt practice were sought to be established only by oral evidence. It was urge that the High Court failed to take an overall view of the evidence adduced, that the High Court erred in not relying on the evidence relating to an instance when the same is spoken to by a single witness and that the High Court erred in rejecting the testimony of some of the witnesses on the ground that they were change witnesses. The Supreme Court held that none of these contentions had any merit. Each instance of corrupt practice pleaded had to be established separately. If every one of those instances are not proved, all of them put together cannot be accepted as true because of the volume of evidence. It was held by the Supreme Court in the case of Hardeo Narain Singh v. Surajdeo Singh, 1972(4) SCC 278, on appreciation of the evidence that the High Court rightly accepted the oral evidence as well as documentary evidence adduced on behalf of the petitioner and came to the conclusion that the appellant was guilty of corrupt practice. As held in Raghuvir Singh v. Raghubir Singh, AIR 1970 SC 442, in the matter of appreciating oral evidence, the appellate Courts attach great value to the opinion formed by the trial Judge. That should be more so in the case of an election petition containing charges of corrupt practices, firstly because these charges are quasi-criminal in character and secondly they are tried by a Judge of the High Court. The Supreme Court does not re-appreciate oral evidence unless there are special reasons for doing so. Also held in Narbada Prasad v. Chhaganlal, AIR 1969 SC 395, where there is evidence which the Judge considers truthful not on the probabilities of the case but because the Judge on his observation of the manner in which the witness deposed, the appellate Court should be slow to deport from the conclusion of the trial Judge.

       

       – facts constitutive of corrupt practice must be averred in the petition itself or brought in by amendment by leave of the Court, within the limitation period. The opposite party is thus put on guard as to what charges he has to meet. Particulars, illustrative of corrupt practices alleged, stand on a different footing. Even if there have been initial omissions in pleading, they can be made up by Court’s leave, at any time. As in the case of Vatal Nagaraj v. R. Dayanand Sagar, AIR 1975 SC 349, what is more to the point have for it is common case that errors in particulars of cat numbers have at any stage been rectified in the case-proof at minor variance with alleged particulars may be allowed, the course open to the opposite party being to satisfy that the trial Judge of prejudice sustained and of opportunity for adducing rebutting evidence. To shot out cogent and clear evidence of particulars of corrupt practice on procedural technicalities is to orphan the real, though absent viz, the silent constituency. As held in Harsingh Charan Mohanty v. Surendra Mohanty, AIR 1974 SC 47, evidence contrary to pleadings cannot be considered.