JUDGMENT

RANGANATH MISRA, J. :— This appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the Act) is directed against the decision of the Kerala High Court dismissing the election petition of the appellant whereby he challenged the election of respondent No. 1 as a member of the Kerala Legislative Assembly from Constituency No. 125 Eravipuram in the Quilon district of that State. Election was held on 19-5-82 and the result was declared on the following day. There were eight candidates in all but the main contest was between the appellant and the respondent No. 1. The appellant polled 37,073 while respondent No. 1 polled 37,862. There was, therefore, an excess of 789 votes. All the remaining candidates together polled about 2,000 votes.

2. Challenge to the election was laid on two grounds :- namely, commission of corrupt practices within the meaning of sub-sections (2), (4) and 7 of See. 123 of the Act and several irregularities in the course of counting leading to wrong conclusion regarding the result. The returned candidate joined issue and denied these allegations. The learned Election Judge in the High Court came to hold that the appellant had failed to bring home the charges of corrupt practices. He also did not accept the plea of irregularities in counting of ballot-papers. A request made to him for recount was rejected and on these conclusions he held that the election petition was liable to be dismissed.

3. Appellants counsel conceded that the allegations of corrupt practices covered by sub-section (2) of Section 123 of the Act would not be pressed. He also fairly accepted the position that the evidence relating to obtaining or procuring of assistance for the furtherance of the prospects of respondent No. 1s election from government servants was inadequate as found by the High Court. Two grounds were, therefore, pressed in support of the appeal, namely, the allegations of corrupt practice within the Section 123(4) of the Act and the allegations of irregularities in the matter of counting of ballot-papers.

3-A. Section 123 (4) provides :

"123. The following shall be deemed to be corrupt practices for the purposes of this Act :-

(4) The publication by a candidate or his agent or by 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 candidates election."

Admittedly Azeez was the election agent of respondent No. 1. In paragraphs 4 to 8 of the election petition, it had been alleged that election agent Azeez published a statement dated 13-5-1982 in the form of a hand-bill making false but serious allegations against the appellant touching his personal character and conduct. It was alleged that the appellant had caused the murder of one Omana, a lady worker supporting the respondent No. 1 because she refused to support his campaign. A meeting was held on 14-5-1982 at a place known Tatamala Junction to condemn and condole the said death. It was represented that the death was caused on the ground that the said helpless lady was not prepared to work for him. Azeez along with other election workers carried wide scale propaganda with loud-speakers. At the said meeting there were many speakers including Azeez and the respondent No. 1 who spoke in the same strain as the contents of the hand-bill. This was done with a view to affecting the prospects of the appellants election. Similar propaganda was said to have been made by them until canvassing stopped. The respondent No. 1 denied these allegations in the written statement. According to the appellant the corrupt practices within the meaning of Section 123 (4) of the Act related to distribution of the h