Judgment

BHARUCHA, J.:- This is an appeal under the provisions of the Representation of the People Act, 1951, against the judgment and order of the High Court of Andhra Pradesh whereby the election of the appellant before us to the Andhra Pradesh Legislative Assembly from the Tanuku Assembly Constituency was declared void and set aside in view of the finding that he had committed the corrupt practice prescribed by Section 123(3) of the Act.

2. Section 123(3), inter alia, states that

"the appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion ........ or the use of or appeal to religious symbols for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any other candidate is a corrupt practice. "

3. The respondent, a candidate of the Telugu Desam Party, secured the largest number of votes at the said election, which was held on 22nd November, 1989. The High Court found that during the election campaign posters depicting N. T. Rama Rao, the leader of the Telugu Desam Party, in the role of Lord Krishna, blowing a conch shell, had been used. The offending poster bore at the top a sloka from the Bhagavad Gita, which said, roughly translated, that the Lord would be born upon this earth in age after age to establish dharma or righteousness. At its bottom the offending poster stated that the deceitful Congress, which had sold out the country, should be defeated. It was the contention of the election petitioner before the High Court, who was a voter in the Constituency, that the offending posters had been exhibited by or at the behest of the successful candidate. It was held by the High Court that it had no doubt that the offending poster was a religious symbol, its implication being that N. T. Rama Rao, who was an incarnation of Lord Krishna, exhorted voters to defeat the deceitful Congress. The High Court went on to consider whether the offending posters had been affixed by the successful candidate or his election agent or by any person with the consent of the successful candidate or his election agent. It came to the conclusion that it was clear from the evidence "that the respondent or his agent or other persons with his consent have used religious symbol for the furtherance of the prospects of the respondent or for prejudicially affecting the election of the Congress I candidate". Accordingly, the corrupt practice under Section 123(3) was found to have been established. The High Court did not accept the case of the election petitioner in regard to the other corrupt practices that had been alleged. Upon the basis of the finding In regard to the corrupt practice under Section 123(3), the High Court allowed the election petition, declared the election of the successful candidate to be void and set it aside.

4. As aforesaid, the successful candidate is in appeal.

5. The election petition alleged that the "respondent herein ......and, with his consent and connivance, his followers, supporters and his party men and election agent had resorted to large scale display of wall posters and paintings on the walls of the picture of Lord Krishna". The offending posters, which were described, had been pasted on walls at important places in all villages and towns throughout the constituency and also on the sides of vans and vehicles used for canvassing. The election petition stated that particulars of some of the instances where, inter alia, the offending posters were exhibited were given in Schedule A thereto. Schedule A gave various addresses whereat the offending posters had been pasted. Photographs would, it was stated, be produced in support of the allegation and four witnesses, would depose thereto, namely, Pericherla Rama Krishna Raju, Dukka Suri Appa Rao, Allabani Venkanna, Venni Subba Rao. The Schedule also referred to "oil painting and posters" on the p