TMI Blog1975 (2) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 123(5) of the Act, was committed by the appellant: 123(5). The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under sub-section (1) of section 29 for the poll : Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purposes of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel sp hired is a vehicle or vessel not propelled by mechanical power Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost, for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant has relied upon the decision of this Court in Rahim Khan v. Khurshid Ahmed Ors.,(1) where Krishna Iyer, J., speaking for this Court, said (at p. 666) :- An election once held is not to be treated in a lighthearted manner and defeated candidates or disgruntled electors should not get away with it by Ming election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically sacred public act, not of one person or _of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to act aside or declare, void an election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returned candidate is adduced. Indeed, election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which has been concluded . In Rahim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of them shaken in cross-examination and I do ,act see any good reason for discarding their sworn word. As would be seen later, they actually plied their trucks for the returned candidate on the 11th of March, 1972... a fact which clinches the matter against him . The denial of the returned candidate were rejected by the learned Judge on the ground that threw were made by a highly interested party. After having been taken through the judgment we are not satisfied that the learned Judge did anything more than to rather mechanically accept the oral and documentary evidence given to support the charge. We certainly do not find there any consideration or discussion of a number of infirmities which have been placed before us both in the oral and documentary evidence adduced to support the, charge. We think that this is so because the learned Judge seems to have held the view that a mere consideration of probabilities, without applying a strict standard of proof beyond reasonable doubt to a charge of corrupt practice was enough here. After going through the evidence relating to the use of each truck, and repeating, rather mechanically, that this evidence on behalf of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... honestly mistaken statements under oath. The extraction of what should constitute the credible foundation of judicially sound judgment is an art which nothing except sound common sense and prudence combined with experience can teach. A sound judgment must disclose a fair attempt to separate the grain from the chaff as it has often been said. Section 3 of the Evidence Act lays down: A fact is said to be proved when after considering the matters before it, the Court either believes it to exist or con- siders its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists . Hence it has sometimes been argued that the same standard of proof applies to all types of cases. Such a contention seems plausible. But, what has to be borne in mind is that, in judging the evidence of a grave charge, prudence dictates that the belief in its correctness should form the basis of a judicial verdict of guilt only if that belief reaches a conviction beyond reasonable doubt. If prudence is the real test, it prescribes differing standards of proof in differing circumstances. Its requirements preclude any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of the appellant that, either as a general rule. in election cases, or on the facts of this particular case, the evidence of the motordrivers must be necessarily rejected simply because it is oral testimony of drivers of trucks who had formed a Union which had once invited and garlanded the respondent. We, however, think that the evidence had to be more carefully scrutinized than the High Court was disposed to do it. As was Pointed out in Rahim Khan's case (supra), evidence considered unsafe to be acted upon by a judicial Tribunal need not be necessarily false. Turning to the 4th ground- of objection, relating the prosecutions of truck drivers by the Police for alleged offenses said to have taken place on 11.3.1972, we find that the High Court accepted the allegation that the' drivers were challenge on 11.3. 1972 without commenting on some conflicting evidence as to the date on which the motor drivers were challenge. In reply, it has been contended that witnesses who could have given more, evidence on this question were not only given up by the petitioner respondent but also by the appellant as- the date of challans was accepted or not questioned on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not advanced before the High Court. We think that we ought to have the benefit of scrutiny of the whole evidence on this question by the High Court and its findings thereon. We are not prepared to proceed on the assumption that the respondent could easily get evidence fabricated as he had been a minister. We may now deal with the first three grounds of objection, all relating to what is called the Pukar Register. It is true that Uggar Sain, P.W. 24, who was called to prove the Pukar Register, did not actually depose in %*hose handwriting the entries in it were made, or what could or could not be property entered here. The trend of cross- examination, however, shows that it proceeded on the assumption that Uggar Sain, P.W. 24, was actually making entries in it. But, neither this fact was proved in the examination-in-chief nor was the course of business, according to which entries could be made in the Register, including entries of alleged payments by the respondent, proved. A number of question raised before us,( throwing some suspicion on the authenticity of the entries in this Pukar Register and the dates on which they could be or were made seem to us to be entirely new. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved. It too readily accepted the evidence, both oral and documentary, without examining all the defects of it which have been sought to be placed before us. We are left with an unavoidable impression that important aspects of the case were neither satisfactorily brought out clearly by the evidence in the case nor examined by the High Court despite the voluminous evidence led by the parties and the lengthy judgment delivered by the Tribunal. We also find that the Court adopted a standard of proof which is not strict enough in appraising the worth of evidence produced to support a charge of corrupt practice. As it is not the practice of this Court to reassess evidence or to perform the duties of the Trial Court, even in election first appeals, unless no other course is left open to it, we think that this is a fit case in which we should send back the case for reconsideration by the High Court after recalling such witnesses as may be considered necessary by it, and, in particular, Uggar Sain, P.W. 24, so that at least the Pukar Register, assumed to have been duly proved, may be proved in accordance with law. We think that the objections to the proof of this document, and of entrie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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