O. Bharathan
Vs. K. Sudhakaran & Anr [1996] INSC 197 (6 February 1996)
Venkataswami
K. (J) Venkataswami K. (J) Verma, Jagdish Saran (J) K.Venkataswami, J.
CITATION:
1996 AIR 1140 JT 1996 (2) 384 1996 SCALE (1)688
ACT:
HEAD NOTE:
This
appeal under Section 116A of the Representation of the People Act 1951
(hereinafter referred to as "the Act") is preferred against the
judgment and order in Election Petition No. 4 of 1991 of the Kerala High Court.
The appellant was the elected candidate to Kerala legislative assembly from No
11, Edakkad constituency. The election was held on 12th June, 1991. There were only three candidates in the field. The
appellant was polled 54965 votes and the first respondent was polled 54746
votes and the appellant having secured 219 votes more than the first respondent
was declared as successful candidate. That declaration was challenged by the
first respondent by filing an Election Petition as mentioned above.
The
election of the appellant was challenged by the first respondent on a single
ground at the trial on which alone evidence was let in and which found favour
with the High court could be stated by setting out ground (B) as given in the
Election Petition :
"B.
Similarly large number of other void votes have also been illegally cast and
received at the time of the polling which took place on the 12th June, 1991 to the Edakkad Assembly
Constituency. In the voters' list, the names of some persons who are one and
the same but whose names have been entered more than once in the voters' list
with intentional slight difference in the House No. with variation in the
description of their names, in their father's/husband's names etc.
Taking
into advantage that position more than one vote has been cast in the names of
such persons. Under section 62 of the Representation of the People Act, 1951,
no person shall at any election vote in the same constituency more than once
and, if he does so vote, all his votes in that constituency shall be void. The
petitioner respectfully submits that persons whose names and other details are
mentioned in the list, produced along with as Annexure-B to the petition, have
exercised more than one votes in the election aforesaid to the Edakkad No.11
Assembly Constituency. Since the names and other details of such persons are
far too numerous, the petitioner is producing along with the petition a list
containing the names and details as Annexure-B to this petition. The reception
of the aforesaid votes from the aforesaid persons, was improper and amounted to
receiving votes improperly and reception of void votes. More than 1114 votes
have been received from the aforesaid persons. Thus about 1114 void votes have
been received in the elections to the No. 11 Edakkad Assembly Constituency.
Those
votes have been counted and taken into account in declaring the first
respondent as elected. The petitioner submits that the reception of such void
votes has materially affected the results of the elections. The petitioner has
reasons to believe that votes that have been cast in the name of those persons
whose names appear in Annexure-B have all gone in favour of the first
respondent. If those votes are scrutinized, inspected and excluded, undoubtedly
it will be revealed that the result of the election in so far as it concerns
the first respondent, the returned candidate, has been materially affected by
reception of void votes. If those votes are excluded undoubtedly the petitioner
would be found to have obtained a majority of the valid votes. But for the
reception of the aforesaid void votes the first respondent would never have
been declared elected, and instead the petitioner would have been declared
elected." In support of this ground the first respondent (Election
Petitioner) has examined as many as 322 witnesses and filed Exhibits numbering
about 1293. In the light of the oral and documentary evidence, the learned
Judge initially rendered an interim judgment on 10.8.1992 giving a finding as
follows:
"I
find that 269 votes are void under Section 62(4) of the Representation of the
People Act, 1951 and I have also found 39 votes have been cast by persons whose
names were not included in the electoral roll. These votes were cast by
impersonation under Section 62(1) of the Act. These votes must have been
accepted as valid votes by the returning officer at the time of counting. This
amounts to improper reception of votes as envisaged under Section 100(1) (d)
(iii) of the Act. As the first respondent was declared elected by by a margin
of 219 votes, the declaration of these votes as void and invalid may materially
affect the result of the returned candidate. These votes have to be searched
out and excluded from the total number of votes." In order to find out the
candidate in whose favour those votes have been cast, the learned Judge overruling
the objection raised by the learned counsel for the appellant/elected candidate
that the suggestion to open the ballot boxes to examine the ballot papers would
violate the secrecy of the ballot, ordered for opening of the ballot boxes to
examine the ballot papers for the purpose mentioned above. This job was
entrusted to the joint Registrar of the High Court who after verification found
out of 308 vold/ invalid votes, (namely 269+39) 306 of such votes have been
polled in favour of the appellant/elected candidate. In view of the said report
given by the joint Registrar, the learned Judge found that those 306 votes
counted in favour of the elected candidate must be deducted and after so doing,
the Appellant/Elected candidate was found to have secured only 54659 which is
less than 8/ votes secured by the Election Petitioner (first respondent
herein). As a consequence of this finding while setting aside the election of
the appellant as void, the learned judge further declared the first respondent
as duly elected to the said constitutuency.
Aggrieved
by the above judgment and order of the Kerala High Court, the present appeal
has been filed by the appellant. Though several arguments concerning procedural
irregularities and legal infirmities in the order were pointed out, we do not
consider it necessary to go into all those points in the view we propose to
take which in our opinion will be sufficient for the disposal of this case.
From
the facts narrated above, it will be seen that the learned judge has found on the
basis of appreciation of evidence let in before him that 306 votes polled in favour
of the appellant were either void or invalid and as such they should be
deducted from the votes polled in his favour.
For
coming to the conclusion that 269 votes polled were void, the learned Judge
found on appreciation of oral evidence that witnesses examined on the side of
the Election Petitioner (respondent No.1) have either admitted that they have
voted two times or they must be deemed to have voted two times in view of the
similarity of the signatures in two counter-foils alleged to be related to
those witnesses.
Learned
Senior counsel appearing for the appellant vehemently attacked the conclusion
of the learned judge that the witnesses have admitted their signatures and also
the fact of voting twice. According to the learned counsel such finding being
perverse cannot be sustained in respect of at least 65 witnesses corresponding
to 130 votes. To support his contention, learned counsel as samples pointed out
certain portions from the evidence of the witnesses and also certain portions
from the Judgment of the learned Judge himself.
As a
sample of oral evidence, he invited our attention to the evidence of P.W.53
P.W. 53 in the Chief Examination has stated as follows :
"I
cast my vote in Mavllayi polling station. The polling station was in Cherumavilayi
U.P. school. (Ext.711 Marked) Ext. P.711 counterfoil contronted to the witness
and the witness denies the signature. (Ext.P.712 marked) Ext.P.712 counterfoil
shown to the witness. The signature in that also is denied by the witness. Ext.P.391
Declaration shown to the witness.
Witness
admits the signature. Voter No.142 Othenanchalil K.K.Chandri w/o Chandran of
polling station no.69 is myself. I have still doubt whether Ext.P. 712 is
signed by me.
I am
certain that the signature found in Ext.P. 711 is not my signature." On
the above evidence the conclusion of the learned judge is as follows :
"According
to PW53 she had cast only one vote No.142. The corresponding counterfoil is
marked as Ext. P 711. When this was confirmed to the witness she denied the
signature therein. Ext. P 712 is the counterfoil corresponding to voter No.239.
The signature in Ext.P 711 and Ext. P 712 are almost similar. There is slight
variation.
But
that does not affect the petitioner's case, as the signature in Ext. P 712 is
exactly similar to the signature put by the witness in the deposition.
Therefore, it is clear that voter No. 142 and 239 in Ext.P60 is one and the
same person and that voter has cast more than one vote. In the result. I
declare that vote cast against counterfoil No. 070975 (Ext.P. 711) of polling
station No. 69 and the vote case against counterfoil No. 070258 (Ext.P.712) and
polling station No.69 are void." In another instance the learned Judge
held as follows :
"The
signature of the witness in the deposition does not tally with the signature
found in these two counterfoils. On a comparison of the signature in Ext.P 713
and P 714 I have little doubt that the same witness has cast two votes.
Therefore,
I declare that vote cast against counterfoil No. 070653 (Ext,P 713) of polling
station No.69 and the vote cast against counterfoil No.070309 (Ext.P 714) of
polling station No.69 are void." While appreciating the evidence of P.W.69
the Court held as follows :
"P.W.
69 admits that he is voter No. 1392 in Ext. P 53 electoral roll. The witness
also admits that voter No.563 in Ext.p 47 refers to him. According to this
witness he had cast vote in polling station No. 53. The two counterfoils were shown
to the witness and he denied both. In the cross-examination, however, he stated
that he has no connection with kadampeth house and that voter No. 1392 in Ext.
P 53 is not himself. The signatures in the two counterfoils are not closely
similar. So it cannot be said that both votes were cast by P.W. 69.
The
signature in Ext.P.762 has got similarity with the signature of the witness in
the deposition, So the vote against Ext.P.761 must have been cast by some other
person. Therefore, I hold that the vote cast against counterfoil No.062682 (Ext.P
761) in polling station No. 61 is invalid vote." The evidence of P.W. 146
reads as follows :
"My
father's name is Chathukutty.
My
house is Challivalappil. My mother's name is Lakshmi and I am a driver by
profession. Ext. P 50.
Sl.No.
1192 Balakrishnan Chathukutty aged 30 is myself, Sl.No. 47 in Ext P 103 Balakrishnan
Chathukutty Nambiar is not myself.
My
father is not Chathukutty Nambiar, (Counterfoil Nos. 120847 and 056691 are
marked as Ext.P 936 and 937). Witness denies both the signatures. I have cast
only one vote." Cross-examination by Ist respondent's counsel:
"In
Ext. P.50 against Sl.no.642 the house No, shown is 245, it is not my house
number. I have no connection with the house by name krishnalayam. Sl.No.642 is
on krishnan Nambiar. I am a member or Thiyya community, (Witness says that he
is in possession of driving licence and shows the same before court and his
name has been written there as C.V.Balakrishana. The driving licence also
contains a photograph of the witness." On the above evidence, the High
Court found as follows:
"P.W.146
Balakrishnan admits that his father's name is Chathukutty and his mother's name
is Lakshmi.
He
also admits that he is voter No.1192 in Ext. P 50 electoral roll, but he denies
that he is voter No.47 in one Balakrishnan Chathukutty Nambiar and according to
this witness his father is not Chathukutty Nambiar and that he belongs to Thiyya
community. But it is pertinent to note that in Ext.P.50 voter No.1192 is shown
as resident of house No.245. In the original voters' list of polling station
No.50, house No. 245 is described as krishnalayam and voter No. 642 is one L.
Krishnan Nambiar.
P.W.146
is not in a position to explain as to how his name happened to be included as a
resident of the house of krishnan Nambiar. So even in the admitted entry there
is voter No. 1192 in Ext.P 50. The corresponding counterfoil is marked as Ext.
P 937. Even though the witness denies his signature therein, that is to be
taken as his admitted signature as it corresponds with his admitted entry. The
signature in Ext. P 937 is strikingly similar to the signature in Ext. P 36
counterfoil.
So, it
is clear that the person who put the signature in Ext. P 937 must have put the
signature in Ext.P 936 also. Therefore, it is proved that there is not only
similarity in the name but there is close similarity between the two signatures
also. So, I hold that P.W. 146 had cast two votes. In the result, I declare
that the vote cast against counterfoil No. 120847 (Ext.P936) in polling station
No.115 and the vote cast against counterfoil No.056691 (Ext. p 937) in polling
station No.56 are void." Likewise while commenting on P.W. 149 the Court
held as follows :
"According
to the witness she had cast vote in polling station No.91 as voter No.683. The
corresponding counterfoil, marked as Ext. P 942, was shown to the witness. She
denied the signature therein. Ext.P 943, the counterfoil of voter No.1143 in
Ext, P 78 was shown to the witness. She denied that signature also. But on a bare
perusal of these two signatures it can be seen that there is close resemblance
between the two. The similarity in name and the close resemblance of the two
signatures in the counterfoils would clearly establish that P.W. 149 had cast
two votes. In the signature in Ext.P 942 and 943 the first letter 'K` is so
conspicuous and the style of writing and the figure of the signatures are
exactly similar.
Under
the above circumstances, I hold that P.W. 149 had cast two votes. Therefore,
the vote case against counterfoil No. 093440 (Ext.P 942) in polling station
No.91 and the vote cast against counterfoil No. 091398 (Ext.P 943) in polling
station No.89 are declared void." Similar are the cases regarding 65
witnesses at least.
This
is not seriously disputed by the learned counsel for the first respondent.
Though the signatures are challenged, the learned judge overruling the
objection raised by the learned counsel for the appellant herein that unless
the disputed signatures are compared with the admitted signatures, the same
cannot be taken into account proceeded to compare the signatures by himself and
found that they are either similar or slightly varying.
It
appears that the learned Judge has decided the question of void and invalid
votes on insufficient materials and evidence in the case. Majority of the
witnesses denied that they have voted more than once and they have also denied
their signatures in the counterfoils. Under such circumstances, the learned
judge could have summoned documents containing admitted signatures for
comparison by an expert and also by comparing them himself. Instead the learned
judge understood the hazardous task of comparing hundreds of disputed
signatures which are not having individual characteristics to set aside the
election of a candidate, the appellant herein.
The
learned Judge in the course of the judgment has observed as follows :
"Most
of the witnesses either denied their signatures or expressed their inability to
indentify their signatures. In the case of some well-educated persons when
counterfoils containing the signature were shown to them, they stated that they
could not identify the signatures. Every reasonable prudent person would be
able to identify his signature whenever the signature is shown to him."
Notwithstanding the above fact, namely, the learned Judge while doubting the
testimony of the witnesses, instead of confronting them in a legal way to get
the truth, jumped to his own conclusion. The learned judge in the course of
appreciating the scope of Section 73 of the Evidence Act and having given a
finding that under Section 73 of the Evidence Act a disputed signature could be
compared only with the admitted signatures, proceeded to compare the signatures
found in the counterfoils to find out whether both the signatures were to be by
the same person.
On the
peculiar facts of this case, the learned Judge erred in taking upon himself the
task of comparing the disputed signatures on the counterfoils without the aid
of an expert or the evidence of persons conversant with the disputed
signatures. Therefore, the approach made by the learned judge is not in
conformity with the spirit of Section 73 of the Evidence Act. Though the
rulings of this Court in State vs. Pali Ram (AIR 1979 SC 14) and Fakhruddin vs.
State of Madhya Pradesh (AIR 1967 SC 326) were brought to
his notice, the learned judge proceeded to compare the disputed signatures by
himself and decided the issue. While doing so, the learned judge observed as follows
:
"So
all these witnesses are in the habit of occasionally putting their signature.
Strangely enough most of the witnesses either denied their signature or
expressed their inability to identify their signature. Even in the case of some
well-educated persons when counterfoils containing the signatures were shown to
them, they stated that they could not identify the signatures. Every reasonable
prudent person would be able to identify his signature whenever the signature
is shown to him. It is clear that these witnesses denied their signatures or
failed to identify the signature with a definite purpose that at least one
signature should not be taken as the admitted signature so as to make a
comparison with the denied signature. It is also possible that the witnesses
who had cast more than one vote pretended that they could not identify any of
the signatures to make believe that they had not cast more than one vote. The
denial of the signatures and the failure of these witnesses to identify their
own signatures is to be viewed in the background of similarity of the
signatures found in the various counterfoils." Again the learned Judge
observed as follows :
"It
is true that under Section 73 of the Evidence Act a disputed signature could be
compared only with the admitted signature or signature proved to the satisfaction
of the court to have been written or made by that person. Reliance was placed
on the decision reported in State (Delhi Admn.) vs. Pali Ram (AIR 1979 SC 14)
and contended that it is not advisable that a judge should take up the task of
comparing the admitted handwriting with the disputed one to find out whether
the two agree with each other and the prudent course is to obtain the opinion
and assistance of an expert. This opinion was expressed by the Supreme Court in
a criminal case while considering the question whether the accused had
committed the offence of forgery and chearing. In Fakhruddin vs. State of Madhya Pradesh (AIR 1967 SC 1326), the Supreme
Court observed that comparison of the handwriting by the court with the other
documents not challenged as fabricated, upon its own initiative and without the
guidance of an expert is hazardous and inconclusive. These observations were
made in the facts and circumstances of such case. But, in the instant case, comparison
of the signature found in the counterfoil are made to ascertain whether both
signatures were put by the same person."
*********************************** "In the instant case, several
witnesses who are alleged to have exercised their franchise more than once
admitted that their names have been included in the electoral roll. They would
say that they cast only one vote. In cases where their names are entered more
than once in the electoral roll these witnesses admitted one entry and denied
the other. The counterfoil corresponding to the admitted entry in the electoral
roll must contain the signature of the voter. Even though this signature has
also been denied by the witness or rather failed to be identified by the
witness, it can safely be taken as the admitted signature of the witness. That signature
could be very well compared with the signature appearing in the disputed
counterfoil." *********************************** "So the standard of
strict proof can be insisted only in the election petition wherein the election
is sought to be set aside on the ground of corrupt practice.
In the
instant case it can only be said that standard of proof should be of high
nature, as an election petition is not liable to be set aside on vague or
inaccurate evidence, and the court must uphold an election when two different
views are reasonably possible, from the evidence adduced in the case."
*********************************** "As already pointed out by me the
close similarity in the signature in the counterfoils is also a strong proof to
show that the entry related to the same person. It is also important to note
that most of the witnesses denied their signatures in both the counterfoils.
They could not identify their own signature and it is also clear that many of
these witnesses changed their signatures and put different signatures in the
deposition. In some cases the witnesses were asked to give specimen signatures
and these specimen signatures were taken in open court and they are marked as
exhibits in the case. The specimen signatures in many cases do not tally with
the signatures found in the counterfoil of the voter, who admittedly cast his
vote as voter against a particular serial number.
With
this broad outline in the evidence I propose to consider the evidence of each
witness who allegedly cast vote more than once." It is on the basis of
such conclusion the learned Judge arrived at the finding that 269 votes were
void as one voter has voted twice. As pointed out earlier at least in the cases
of 65 such witnesses (that means 130 votes) where the signatures are not
admitted the findings of the learned judge cannot be supported for the reasons
given earlier. It those 130 votes which were declared void and found polled in favour
of the appellant herein are taken into account in his favour, certainly the appellant
must be found to have secured more votes than the first respondent herein.
The
learned Judge in our view was not right either in brushing aside the principles
laid down by this Court in AIR 1979 SC 14 (supra) on the ground that it was not
a criminal case or taking upon himself the hazardous task of adjudicating upon
the genuineness and authenticity of the signatures in question even without the
assistance of a skilled and trained person whose services could have been
easily availed of. Annulling the verdict of popular will is as much a serious
matter of grave concern to the society as enforcement of laws pertaining to
criminal offences, if not more. Though it is the province of the expert to act
as judge or jury after a scientific comparison of the disputed signatures with
admitted signatures, the caution administered by this Court is to the course to
be adopted in such situations could not have been ignored unmindful of the
serious repercussions arising out of the decision to be ultimately rendered. To
quote it has been held in AIR 1979 SC 14 (supra) ;
"The
matter can be viewed from another angle also. Although there is no legal bar to
the Judge using his own eyes to compare the disputed writing with the admitted
writing, even without the aid of the evidence of any handwriting expert, the
Judge should, as a matter of prudence and caution, hesitate to base his finding
with regard to the identify of a handwriting which forms the sheet- anchor of
the prosecution case against a person accused of an offence, solely on
comparison made by himself. It is therefore, not advisable that a judge should
take upon himself the task of comparing the admitted writing with the disputed
one to find out whether the two agree with each other: and the prudent course
is to obtain the opinion and assistance of an expert." The necessity for
adhering to the said sound advise and guidance is all the more necessary in a
case where hundreds of signatures are disputed and the striking dissimilarities
noticed by the Court at the time of trial of the Election Petition.
The
learned counsel appearing for the first respondent was not able to convince us
that the learned Judge was right in comparing the signatures himself at any
rate in the peculiar facts and circumstances of the case and rendering the
findings against the appellant herein. As we are satisfied on the peculiar
facts of this case also that the learned Judge was not right in deciding
hundreds of the disputed signatures by comparing the counterfoils by himself to
declare the votes as void, we need not go into other arguments advanced before
us.
As we
find that at least 130 votes are validly polled in favour of the appellant for
the reasons given earlier then he must be held to have secured 43 votes more
then the first respondent herein.
In the
result, we hold that the learned Judge was not right in declaring the election
of the appellant as void and declaring the first respondent as duly elected.
Accordingly, the appeal is allowed and the Election petition is dismissed with
costs throughout.
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