PETITIONER:
O. BHARATHAN
Vs.
RESPONDENT:
K. SUDHAKARAN AND ANOTHER
DATE OF JUDGMENT: 06/02/1996
BENCH:
VENKATASWAMI K. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1996 AIR 1140 JT 1996 (2) 384
1996 SCALE (1)688
ACT
HEADNOTE
JUDGMENT
JUDGMENTK.Venkataswami, J.
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.