TMI Blog1971 (5) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was found to have received 21,143 votes, while the respondent election petitioner received 19,358 notes. The remaining candidates got very few votes ranging between 7 and 694. The election of the appellant was challenged by the respondent on various grounds, of which we need mention only two grounds which have been accepted by the High Court of Patna and on the basis of which the election of the appellant has been set aside. These grounds relate to commission of the corrupt practices of undue influence Under Section 123(2) and of making appeal on the ground of caste Under Section 123(3) of the Act. 2. The pleading in respect of the first ground of undue influence, which has been found against the appellant, relates to the incidents in two villages, Dumduma and Mukhraon. In the election petition, here was a general pleading that the appellant managed to use force in order to check the workers and innocent voters, who were supporting the candidature of the respondent, from going to the villages and the polling stations to canvass and cast their votes and he further managed to get bogus votes polled in his favour in place of those voters as well as other voters. It was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... organisations in the caste during the last five years or so. The allegation is that Swamiji, accompanied by the appellant and one Bhola Rai of the same caste, went to a number of villages and appealed to individual voters there to vote for the appellant on the ground that he was a member of the caste, that he had, with great difficulty, obtained a ticket from the Central Board of the Congress Party, and that, if he was defeated on this occasion, the members of the caste would lose prestige and position in the various villages. He also wrote letters to some important members of the caste, including one Ram Chandra Sharma of village Harpur, who was working for the respondent. Ram Chandra Sharma was also Bhumihar by caste and was not on good terms with the appellant. Swamiji appealed to him, on the ground of caste, to give up the disputes and support the appellant. This is the appeal on the ground of caste which has been held established by the High Court and forms the second ground for setting aside the election of the appellant. The High Court, in dealing with this case, in its judgment first dealt with the second ground relating to the appeal on the ground of caste which constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter was the statement of Ramchandra Sharma and two questions were put to him. One question was that the letter was a forgery which he denied. The second question was that he had obtained this letter from Swamiji and this was also denied by him. It is significant to note that this latter is written on a postal inland letter and bears the postal stamp of 2nd January, 1969 as the date on which this letter was posted at Varanasi. There is not even a suggestion that this postal stamp has in any way been procured by Ram Chandra Sharma or the respondent or any one else so as to manoeuvra a forgery of this letter. In view of this postal stamp, there can be no doubt that this letter must have been written some time on or before the 2nd January, 1969 at which time there was m question of an election petition being filed, because the election had not yet been held. In fact, the Election Commissioner called upon the constituency to elect the candidate by the notification dated 1st January, 1969 and even the date of nomination was a subsequent date, viz., 8th January, 1969. There can be no justification for assuming that as early as 2nd January, 1969, before even the election process had starte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. A mere suggestion made as a guess work that there was collusion between Swamiji and Ram Chandra Sharma can provide no justification for not examining him when no evidence at all had been tendered to prove that Swamiji and Ram Chandra Sharma were in any way great friends or that Ram Chandra Sharma had some influence on Swamiji as a result of which he could induce him to collude and write this letter at that early stage in January, 1969 in advance of the election. In fact, whatever evidence there is on the record points to a closer association between the appellant and Swamiji then any association between Ram Chandra Sharma and Swamiji. So far as the second ground for non-examination is concerned, it was the appellant's own fault that he did not examine Swamiji at the earlier stage before closing his evidence. In any case, he had the alternative that, when the Court refused to examine Swamiji as a Court witness, he could have made a request to the Court to permit him to summon and examine Swamiji as his own witness; but no such request was made to the Court. In these circumstances, the fact that the appellant did not try to give the only possible evidence which he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caste. Such an appeal does not by itself constitute the corrupt practice Under Section 123(3) of the Act. However, this letter is of great value in assessing the evidence of witnesses who have been examined to prove the oral appeals on the ground of caste made by Swamiji in various villages. The oral appeals were made in villages Harpur, Piprarh and Kanahari on the 19th December, 1968, in villages Sujatpur and Chhitandihra on the 20th December, 1968 and in village Kuchhila on 22nd January, 1969 This letter was sent by Swamiji on 2nd January, 1969, subsequent to the appeals made in the various villages, mentioned above, except the appeal made in village Kuchhila. The letter is addressed to Ram Chandra Sharma of village Harpur; and the oral evidence that an appeal was made to Ram Chandra Sharma by Swamiji on the 19th December, 1968 finds some support from 'his letter, as Swamiji in this letter refers to an earlier oral appeal made by him to Ram Ghandra Sharma when Ram Chandra Sharma did not respond to that appeal. The fact that Swamiji referred to such earlier appeal gives great support to the evidence of the witnesses who have been examined to prove that such an appeal was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make the appeal to Ram Chandra Sharma, is also highly interested witness. Their were denials, without support from any other circumstance, could not be held to disprove the case which was supported by good evidence tendered on behalf of the respondent. Four other resident, of Harpur were examined to say that no such visit of Swamiji took place on 19th December, 1968 Their evidence was rightly considered insufficient by the High Court, because the visit could have taken place without the knowledge of those witnesses if those witnesses were not in the village on that day or, in the alternative, they did not see Swamiji, Bhola Rai and the appellant coming to the village, because they were in their houses, and these persons only went to the house of Ram Chandra Sharrna. In these circumstances, the finding of commission of corrupt practice of making an appeal on the ground of caste in respect of village Harpur recorded by the High Court has to be upheld 9. With regard to the appeals in the other villages Piprarh, Kanahari, Sujatpur and Chhitandihra, which were made on 19th or 20th Dec., 1968, the finding recorded by the High Court again is that the evidence given on behalf of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , be slightly interested in him, Nathuni Rai at least is an independent witness He is also one of the persons whose name came to the knowledge of the respondent only when Rajnarain Rai in his evidence mentioned his presence at the time of the caste appeal and, consequently, he had to be summoned at that late stage All these witness in respect of the caste appeal in various villages have been believed by the High Court. Nothing of importance has been brought to our notice which would justify our holding that these witnesses are unreliable and differing from the assessment of their evidence made by the High Court. The appellant's evidence in respect of these caste appeals consists primarily of the statements of the appellant himself and Bholarai who are both highly interested and whose evidence did not impress the High Court. The other witnesses examined could not competently disprove the caste appeals, because there was no guarantee that they were present at the time when Swamiji actually made the caste appeals. Further, we have the fact that an appeal on the ground of caste in favour of the appellant was actually made by Swamiji in writing to Ramchandra Sharma, though for a sli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the circumstance that letter Ext I proves beyond doubt that Swamiji was a supporter of the appellant, wielded influence amongst the Bhumihar Brahmins and even made an appeal in writing to Ramchandra Sharma on that ground 10 support the appellant and give up his support to the respondent. Consequently, we hold that the finding of the High Court that Swami Bimlaland Saraswati made appeals to various persons in several villages to vote for the appellant on the ground of being members of the Bhumihar Brahmin caste in the presence of the appellant is correct, so that the appellant is guilty of commission of the corrupt practice failing under the provisions of Section 123(3) of the Act and, on this ground at least, the election of the appellant has been rightly set aside. 11. So far as the ground of undue influence is concerned, learned Counsel appearing for the appellant challenged the decision of the High Court on two alternative grounds. One ground was that the finding recorded by the High Court was to the effect chat the workers of the respondent were prevented from going to do canvassing on behalf of the respondent and such interference with the workers does not amount to undu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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