TMI Blog1968 (7) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... re the appellant and respondents 2 to 5. The appellant received 9622 votes as against the second respondent who obtained 8030 votes. The other contesting candidates received fewer votes in comparison. The present election petition was filed, not by any of the defeated candidates, but by an elector to the Legislative Assembly Constituency. In the array of the respondents in the High Court one Ram Kishen s/o Lakshmi Narain Deswali was also joined because his nomination paper was rejected by the Returning Officer. A point was made about this rejection in the High Court and we shall come to it in due course. The election petition was based on two broad facts. The first was that the nomination paper of Ram Kishen was wrongly rejected and the other fact comprised allegations of corrupt practices on the part of the returned candidate and his election agent. These corrupt practices consisted of oral speeches connected with the Manifesto of the Jan Sangh relating to cow slaughter in India. During the course of the speeches, it was alleged the returned candidate, who belongs to the Jan Sangh and his election agent Ram Niwas Somani made speeches at 19 villages in which they referred to thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion paper of Ram Kishen was filed on February 20, 1967. The date of scrutiny was 21st of the same month. Ram Kishen had two alternatives before him. One was to produce any of the documents mentioned before the returning officer or to have filed it earlier with his nomination paper. He did neither. He produced a certificate from an officer who it is not proved to our satisfaction had the authority to issue a certified copy of the electoral roll. He also added an affidavit on his own part in which the gist of the entry was given. Indeed the certificate of the Tehsildar was based on the affidavit which was annexed to the certificate. There was no compliance with the provisions of s. 33(5) of the Representation of the People Act and there was no power in the court to dispense with this requirement. It is a well-understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all, Other modes of compliance are excluded. Even the certificate of the Tehsildar was not a certified or a true copy of the entry. It only gave the gist of the entry taken from the affidavit. It contains a mistake because the village Dholgaon is mentioned w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Chief Minister (D. P. Misra) addressed a gathering of about 2000 persons. The speeches made at that meeting need not be referred to here because they do not bear upon the present matter. The Jansangh then followed and held its own meeting. Many spoke at that meeting including the returned candidate, Narbada Prasad who also goes under the name of Kinkarji. The election petitioner examined in this connection three witnesses and also examined himself. These witnesses are Bulchand (P.W. 2), Babulal (P.W. 7) Chandragopal (P.W. 15). The election petitioner is P.W. 17. It is argued by the learned counsel for the appellant that the testimony of PWs. 2, 7 and 15 should not have been accepted because there were many discrepancies in the versions of these witnesses as to what was said at the meeting. There are also some arguments regarding the credibility of each of these witnesses and we shall briefly refer to these two points now. P.W. 2 Balchand stated that he had not gone specifically to the meeting but that the meeting was thrust upon him. He had gone on the 11th to the house of an ailing relative and was with him in the evening when the meeting took place. This meeting was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tends that this speech, even if it is accepted from the version of P.W.s 2 and 7 did not amount to the kind of corrupt practice which is made a ground for setting aside elections under s. 123(2)(ii). Whether we should believe the witnesses or not involves how far we should enter into facts. No doubt, an appeal before this Court under section 116A is an appeal as of right and is open both on facts and law; still the practice of the courts has uniformly been to give the greatest assurance to the assessment of evidence made by the Judge who hears the witnesses and watches their demeanour and judges of their credibility in the first instance. 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 re-assessment of the evidence. He must show wherein the assessment has gone wrong. Where the court of first instance relies upon probabilities alone, the appellate court may be in as good position as the court of trail in judging of the probabilities; but where the court of trial relies upon its own sense of the credibility of a witness the appellate court is certainly at a disadvantage, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of the Jansangh in making such speeches and had therefore come forward to depose truthfully as to what had happened. This witness no doubt spoke' about Kannod but he lent assurance to the statements of P.W.2 (Balchand), P.W. 7 (Babulal) and P.W. 15 (Chandergopal) about Khategaon. The learned Judge although he examined the two, incidents separately, seemed to have viewed the entire propaganda of Kinkarji as integrated and has drawn the conclusion from both aspects of the case taken together. Therefore the case comes to this, that the witnesses who spoke about the speech at Khategaon were not unanimous as to the version of the speech, but that in our opinion is not a circumstance of vital importance, because. speeches were also made at Kannod in which the returned candidate made similar observation about the sin of gohatya. The witnesses here are P.W. 4. (Narsingh Dass), P.W. 8 (Mazharul Haq) and P.W. 10 (K. L. Tiwari). We shall now refer to what they stated. P.W 4 (Narsingh Das) stated that on February 16, 967 there was a meeting in his village in front of Ramniwas Somani's house. This Somani was the election agent of the returned candidate. At this meeting both Somani an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to believe that they would become or would be rendered an object divine displeasure or spiritual censure. In our opinion a statement of this kind falls within this provision of the section. It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness. It is also believed that of the cardinal sins is that of gohatya. Therefore it is quite obvious that to remind the voters that they would be committing the sin of gohatya would be to. remind them that they would be objects of divine displeasure or spiritual censure, Kinkarji went beyond the permitted limits of canvassing and exhortation when he added to the legitimate manifesto of his party this observation that by voting for the congress or the congress candidate the voters would be objects of divine displeasure or spiritual censure. In our opinion both spiritual censure and divine displeasure are implicit in the speeches as made. The case, therefore, falls clearly within s. 123 (2)(ii) of the Representation of the People Act, 1951. It will be encumbering this judgment if we record the incidents which relate to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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