1. The election petitioner seeks declaration that the election of the first respondent from 270-Hanumkonda Assembly Constituency in the State of Andhra Pradesh is void and further to declare the petitioner as having been duly elected.

2. The case of the election petitioner is as follows: Pursuant to the notification issued by the Election Commission, polling in respect of 270-Hanumkonda Assembly Constituency was conducted on 18.9.1999 As many as 14 candidates contested in the said election. The election petitioner contested as an independent candidate whereas the first respondent contested as a candidate of Bharatiya Janata Party (BJP); the second respondent contested as a Congress-I candidate and all others contested in the said election as independent candidates. Counting of votes was commenced on 6.10.1999 and on the morning of 7.10.1999 the result was declared. The petitioner secured 33,146 votes, the second respondent Congress-I candidate secured 38,488 and the first respondent secured 52,752 votes. The Respondents 3 to 13 secured 1,950, 963, 893, 686, 664, 581, 338, 274, 260, 242 and 117 votes respectively and they lost their deposits. The Returning Officer declared the first respondent as having been elected as he secured highest number of votes among them.

3. The result of the election was materially affected by corrupt practices committed by the first respondent and his agents with his consent. The first respondent through his agents and henchmen with his consent bribed the electorate through DWACRA Groups, Youth Clubs, Student Cricket Clubs, Youth Associations, Mahila Sangams, etc., by distributing cash and by giving gifts like cricket kits, cooking utensils and thereby induced electorate to vote in his favour.

4. The first respondent and his party workers, agents including the chief election agent with his consent distributed monies to the voters in Muchella Nagaram, Hasanparthy Mandal. One Gouri Samba Reddy, local BJP leader of Nagaram Village distributed monies in the village with the consent of the returned candidate. One Smt. Poreddy Kotnala, wife of Poreddy Papi Reddy, President of DWACRA Group was one of such recipients. The said Samba Reddy gave an amount of Rs. 8,000/- to the said Komala and asked her to distribute the same among the members of DWACRA Group and requested her to see the votes of DWACRA members and their families be polled in favour of the first respondent. On 28.9.1999 when Samba Reddy met the said Komala at vegetable market at 6.00 a.m asked her as to why she had not distributed the money and used filthy language against her. The said Komala replied that she distributed the amount and votes were also polled in favour of the returned candidate. Despite the same, when Samba Reddy continued to abuse her, after having informed the same to the members of DWCARA Group and Mahila Sangam, she proceeded to the Police Station to lodge a complaint against him. However, the members of DWACRA Group prevented her and conducted a panchayat on 29.9.1999 at about 9.00 a.m whereat they made Samba Reddy to tender an apology to her. On the same day at about 11.00 a.m, when Komala and her husband were going in front of the house of Samaba Reddy, again he abused her in filthy language and uttered to commit suicide by consuming any pesticide. Subsequently, Komala committed suicide by consuming pesticide and the incident was reported in newspapers on 1.10.1999 Her husband made a complaint to the police pursuant to which the Crime No. 131/99 was registered at Hasanparthy Police Station.

5. Subsequent to the death of Smt Komala, some of the organizations such as Naaya Porata Committee, Stri Janabhudaya Samstha constituted themselves as fact finding body and visited Nagaram Village on 1-10-1999 and gathered information which revealed that the first respondent distributed monies Rs. 500/- each to the members of DWACRA Group to cast their votes in his favour. The fact finding body revealed the information to the members which was published on 6.10.1999 in Vaartha Telugu Daily.

6. Subsequent to the death of Komala, Women Federation in Hasanparthy organised rasta roko under the leadership of Smt. Jhansi and demanded a detailed enquiry into the episode and for grant of ex gratia to her family members. Smt. Seelam Saraswati, Sarpanch of Hasanparthy Village who participated in the rasta roko said that the first respondent distributed monies for the purpose of getting votes. Similarly, Smt. Mekala Bhagyalakshmi, Smt. Bairi Lakshmi, Smt. Kamalamma, Smt. Suverna, Smt. Bujjamma, Smt. Radhamma, leaders of Mahila Associations who participated in the rasta roko also said that the first respondent through his agents with his consent spent money lavishly by distributing the same among various groups in the Mandal. All of them submitted a memorandum to the Mandal Revenue Officer, Hasanparthy, to that effect and it was published in Newspaper on 2.10.1999 in Vaartha Telugu Daily.

7. One Sri Paranjyoti, local BJP leader came to the house or Nalla Dayakar, the President of Adarsh Youth Club in a vehicle along with Gym material and gave him an amount of Rs. 5,000/- and Gym material for the purpose of distributing the same amongst the members of the Youth Club. The said Dayakar promised Paranjyoti that he would see that the members of the Club would vote in favour of the first respondent and instructed accordingly the members of the Youth Club. The petitioner after coming to know of the same submitted a written complaint to the Assistant Returning Officer/Mandal Revenue Officer, Hanumkonda, on 15.9.1999 requesting him to take immediate action. However, he failed to take any action.

8. On 14.9.1999 at about 11.30 a.m, one Venu Madhav and Jagadish came to the house of Purnachandar and all of them went to nearby Hotel Sri Lakshmi and during their discussions Jagadish requested the others to ensure the votes in Teachers' colony and in the friends' circle should be voted in favour of the first respondent and for that purpose he promised to give an amount of Rs. 10,000/- for distributing the same among the voters and on that day he gave an amount of Rs. 4,000/-.

9. On the same day at about 1.00 p.m, Jagadish met one Goutham at his residence and requested him to work for the first respondent while giving an amount of Rs. 10,000/- for the purpose of distributing the same in the locality so as to see that the votes are polled in favour of the first respondent. The said Jagadish is the nephew of the first respondent and he sought to influence the voters in that locality through Goutham and Venu Madhav by bribing the voters as aforesaid.

10. One Sri G. Ravi, the local BJP leader and who has been running a STD booth met one G. Satish, the President of Kakatiya Youth Association on 15.9.1999 at about 5.00 p.m He requested Satish to work for the first respondent and see that the votes in the locality of Kakatiya Colony and votes of Youth Association were polled in favour of the first respondent after distributing the same in the locality. Further, he gave a cricket kit to the Youth Association. Thus, the said Ravi sought to influence the voters through G. Satish by bribing them.

11. On 16.9.1999 one Kondal Reddy of Vangapadu Village along with Sambaiah and others met the members of Mahila Sangam, Smt. Domera Neelamma, Smt. T. Radha, Smt. K. Narasamma and others gave them cooking utensils and requested them to see the votes of their family members polled in favour of the first respondent. The members of the Mahila Sangam voted in favour of the first respondent.

12. Thus, the first respondent through his agents and party workers induced the electorate to vote in his favour by bribing them and thereby resorted to corrupt practices and thereby secured more than 14,000 votes against the petitioner and thus the result of the election was materially affected by such corrupt practices. But for the corrupt practices the petitioner would have obtained a majority of votes and hence the petition.

13. The first respondent resisted the election petition by filing a written statement. He denied of the material averments made in the election petition imputing corrupt practices to him. It is the further case of the first respondent that the election petition is bad for want of material particulars and, therefore, there has been no triable issue in the election petition and is liable to be dismissed in limine.

14. The 14th respondent/Returning Officer filed a separate written statement. He too denied the material averments made in the election petition.

15. Issues were framed on 5.12.2000 Due to mistake, again issues were framed on 20.6.2002 after the dismissal of E.A No. 700/2000 oblivious of the fact that issues were settled earlier. They are more or less the same. It is, therefore, expedient to recast the issues to the following effect:

(1) Whether it is a fact that the first respondent and his party workers, Agents including the Chief Election Agent with the consent of the first respondent distributed monies to the voters in Muchella Nagaram, Hasanparthy Mandal in Hanumkonda Assembly Constituency?

(2) Whether it is a fact that Sri Gouri Samba Reddy distributed monies in the Nagaram Village with the consent of the first respondent?

(3) Whether it is a fact that Sri G. Samba Reddy gave Rs. 8,000/- to Smt. P. Komala and asked her to distribute the same among the members of the DWACRA Group?

(4) Whether the said Samba Reddy questioned Smt. P. Komala as to why she did not distribute the monies to the voters and abused her in filthy language, which ultimately led to her committing suicide?

(5) Whether the Nyaya Porata Committee and Stri Janabhudaya Samstha were constituted as a fact finding body and made enquiries in Nagaram Village on 1.10.1999 which revealed that the first respondent distributed monies at Rs. 500/- each to the members of the DWACRA Group?

(6) Whether one Sri Paranjyoti gave Rs. 5,000/- and Gym material to one Nalla Dayakar, President of Adarsh Youth Club, NGO's Colony, Hanumakonda at about 10.00 a.m, on 12.9.1999 for the purpose of distribution and use of the Youth Club and the said Nalla Dayakar promised to the said Paranjyoti that he would see the members of the Club vote in favour of the first respondent?

(7) Whether one Sri Venn Madhav and Sri Jagadish met Purnachandar on 14.9.1999 at about 11.30 a.m, at his house and the said Jagadish requested Purnachandar to ensure that the votes in the Teachers' Colony and his friends circle are cast in favour of the first respondent promising to give Rs. 10,000/- out of which an amount of Rs. 4,000/- was paid?

(8) Whether on 14.9.1999 at about 1.00 p.m, the said Jagadish met Goutam and requested him to work for the first respondent and gave Rs. 10,000/- for the purpose of distribution in the locality and requested him to see that the youth in the locality including their families should vote in favour of the first respondent?

(9) Whether one Sri G. Ravi met G. Satish, President of Kakatiya Youth Association on 15.9.1999 at about 5.00 p.m, and requested him to see that the votes in the locality of Kakatiya Colony including the votes of Youth Association are polled in favour of the first respondent and offered Rs. 10,000/- for distribution in the locality and gave Cricket Kit to Youth Association?

(10) Whether it is a fact that one Sri Kondal Reddy of Vangapadu Village along with Sambaiah and others met the members of Mahila Sangam, Smt. Domera Neelamma, Smt. T. Radha, Smt. K. Narasamma, and others of Vangapadu Village on 16.9.1999 and gave cooking utensils, to them and requested to see the votes of their family members are cast in favour of the first respondent?

(11) Whether the election of the first respondent is vitiated by the corrupt practices?

(12) Whether the election petition is devoid of merits and lack of material particulars which constitute a cause of action and whether the averments made in the petition are vague, baseless, unfounded and do not disclose any cause of action?

(13) To what relief?

16. At the time of enquiry, as many as ten witnesses were examined on the side of the petitioner and Exs. A.1 to A.6 were got marked and seven witnesses were examined and Exs. B.1 and B.2 were got marked on the side of the first respondent.

17. There has been no gainsaying about the total electorate, number of votes polled, number of valid votes, rejected votes and number of votes secured by the contesting candidates individually. The election petitioner secured 33,146 votes qua the first respondent who secured 52,572 votes. The second respondent/Congress-I candidate although secured more votes than the petitioner, he is not assailing the election of the first respondent. All other candidates have lost their deposits. The first respondent has been eventually declared to have been duly elected with a margin of 19,426 votes qua the petitioner. The election of the first respondent is now being sought to be assailed on the ground that the first respondent resorted to corrupt practices by distributing money to the voters and by giving cricket kits, cooking utensils, etc., to youth and various women organizations. While denying flatly these allegations, the first respondent seeks to contend that there has been no triable issue inasmuch as the allegations mentioned in the election petition are lacking in material particulars and, therefore, they cannot be taken into consideration.

18. As many as six instances have been quoted by the petitioner inter alia in the election petition alleging corrupt practices. As can be seen from the specific averments made in the election petition, these corrupt practices are said to have been resorted not by the first respondent himself but by his agents and representatives. Thus, there has been no allegation on the part of the first respondent directly indulging in corrupt practices. Having regard to this backdrop, it is to be seen as to whether the petitioner could substantiate his claim. It may be mentioned here that the relief sought for in the election petition that the petitioner shall be declared as having been elected is given up. Even otherwise, such a relief cannot be granted in view of the judgment of the Apex Court in Prakash Khandre v. Dr. Vijay Kumar Khandre, (2002) 5 SCC 568. That apart, having regard to the fact that the second respondent Congress-I candidate secured more votes than the election petitioner the request of the petitioner cannot be acceded to. In any view of the matter, such a-relief cannot be granted in favour of the petitioner.

19. Issues 2 to 5 pertain to one incident. Issues 6 to 10 pertain to individual and separate instances. Issues 1 and 11 are the comprehensive issues encompassing in themselves the totality of the circumstances in the case. Issue No. 12 is a technical issue pertaining to the maintainability of the election petition. I shall now proceed to consider these Issues separately.

Issue Nos. 2 to 5:

20. The quintessence of the case of the petitioner seems to be that one Gouri Samba Reddy who is the local BJP leader gave an amount of Rs. 8,000/- to one Smt. Poreddy Komala, the President of DWACRA Group for distributing the same amongst the members in the Group, by asking her to see that their votes were polled in favour of the first respondent. On 28.9.1999 at about 6.00 a.m, the said Samba Reddy happened to meet Smt. Komala at vegetable market when he questioned her as to why she did not distribute the money and abused her in a filthy language. The said Komala is said to have replied that she distributed some of the amount amongst the members of DWACRA Group and the balance was kept for the purpose of registration of DWACRA Association. Later she complained about the said incident to the members of DWACRA Group and proceeded to lodge a complaint with the police. However, she was stopped by the other members. On the next day a panchayat was conducted at 9.00 a.m, whereat the said Samba Reddy was made to tender apology to Poreddy Komala. On the same day at 11.00 a.m, Samba Reddy again abused her in a filthy language while she was going along with her husband in front of the former's house which led to the incident of committing suicide by the said Komala on the same day night. On the complaint given by the husband of the said Komala the police registered a case against the said Samba Reddy. The incident is further said to have ignited the ire of the women organizations which conducted rasta roko on 1.10.1999 Some of the women organizations constituted themselves as fact finding bodies, made enquiries in the village, gathered information which revealed that the returned candidate distributed at the rate of Rs. 500/- to each member of DWACRA Groups and the same was published by print media. It is further said that Mahila Sangam also submitted a memorandum to Mandal Revenue Officer and also brought the same to the notice of the Election Commission and the District Collector.

21. From the above facts, it is obvious that there has been no direct involvement of the petitioner. The whole case of the petitioner appears to be that Samba Reddy with the consent of the first respondent resorted to the said corrupt practices. To prove the said incident, there has been the oral evidence of P.Ws 1, 6 to 8 and 10, besides the documentary evidence of Exs. A.1 and A.3 Ex. A.1 is the certified copy of the First Information Report registered against the said Samba Reddy under Section 306 of the Indian Penal Code. The crime is said to have been registered against him on a report lodged by one Papi Reddy, the husband of the deceased Poreddy Komala. The said Papi Reddy, the author of the original of Ex. A.1, has not been examined in this case to prove the contents thereof. Ex. A.1 remained unproved by not examining the maker thereof. In the absence of any such proof, Ex. A.1 looses every significance. Even the evidence of P.W 8, the witness examined to prove the conversation between the deceased Komala and Sambi Reddy which eventually led to the incident of Komala committing suicide cannot prove Ex. A.1 The contents of Ex. A.1 shall have to be proved only by examining the maker thereof.

22. The other document which is sought to be relied upon by the petitioner is Ex. A.3 Ex. A.3 is a paper clipping containing the news item published in Vaartha Daily. It is to the effect that the persons responsible for the suicide of Poreddy Komala should be punished and that in a democratic country the Government failed in providing appropriate place to the women and that BJP and TDP Governments were showing stepmotherly attitude towards the womenfolk and the organizations demanded payment of ex gratia to the family of the deceased. There has been no whisper in this paper clipping about the alleged corrupt practice. This document per se is not admissible being in the nature of second-hand hearsay evidence. The person who has given the report to newspaper has not been examined. Therefore, this document too as in the case of Ex. A.1 shall have to be eschewed from consideration. I am reinforced in my above view by a judgment of the Apex Court in Manmohan Kalia v. Sri Yash, (1984) 3 SCC 499 : AIR 1984 SC 1161. The Apex Court in Quamarul Islam v. S.K Kanta, 1994 Supp (3) SCC 5 : AIR 1994 SC 1733, reiterated the same view. In para 48, the Apex Court held thus:

“Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the Editor and Publisher, PW4 by itself cannot amount to proving the contents of the newspaper reports. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act. The learned Trial Judge could not treat the newspaper reports as duly ‘proved’ only by the production of the copies of the newspaper. The election petitioner also examined Abrar Razi, PW5, who was the polling agent of the election petitioner and a resident of the locality in support of the correctness of the reports including advertisements and messages as published in the said newspaper. We have carefully perused his testimony and find that his evidence also falls short of proving the contents of the reports of the alleged speeches or the messages and the advertisements, which appeared in different issues of the newspaper. Since, the maker of the report which formed basis of the publications, did not appear in the Court to depose about the facts as perceived by him, the facts contained in the published reports were clearly inadmissible. No evidence was led by the election petitioner to prove the contents of the messages and the advertisements as the original manuscript of the advertisements or the messages was not produced at the trial. No witness came forward to prove the receipt of the manuscript of any of the advertisements or the messages or the publication of the same in accordance with the manuscript. There is no satisfactory and reliable evidence on the record to even establish that the same were actually issued by IUML or MYL, ignoring for the time being, whether or not the appellant had any connection with IUML or MYL or that the same were published by him or with his consent by any other person or published by his election agent or by any other person with the consent of his election agent. The evidence of the election petitioner himself or of PW4 and PW5 to prove the contents of the messages and advertisements in the newspaper in our opinion was wrongly admitted and relied upon as evidence of the contents of the statement contained therein.”

23. There remains the oral evidence of P.Ws 1 and 5 to 10. P.W 1 the election petitioner has no personal knowledge even on his own showing. He specifically deposed that he came to know about the corrupt practices through his followers and then lodged a report in Ex. A.2 on 15.9.1999 with the Assistant Returning Officer. Apart from the fact that the said document is a self-serving statement, it reads that the author thereof has come to know through his sympathizers that the first respondent has been distributing the money and gift articles in the locality to induce the voters. It is only an office copy of the petitioner. In the wake of the denial of the first respondent on the ground that it is a concocted document, the petitioner is expected to summon the original from the appropriate authority. The original is not forthcoming in this case. That apart, P.W 1 in his cross-examination admitted that no acknowledgement was given to him by the District Collector in token of having received the original of Ex. A.2 and he did not know what happened to the report given to the District Collector. In ordinary course, P.W 1 ought to have insisted for an acknowledgement to be given by the Collector. There has been no explanation on his part as to why he did not do so. In that view of the matter, Ex. A.2 looses its significance and becomes a piece of paper containing self-serving statement of the petitioner besides being vague. In my considered view, such a document cannot afford the required corroboration to the testimony of P.W 1. There is nothing to appreciate the evidence of P.W 1 since he has no personal knowledge on his own showing.

24. Let us now see the oral evidence of P.Ws 6 to 8 and 10. The evidence of P.W 6 shows that he saw Samba Reddy abusing the deceased Komala articulating as to why she did not distribute the amount to the voters properly which was sent by the first respondent. He admitted in the cross-examination that he is a member of TDP. The evidence of P.W 7 shows that there had been a Panchayat held by the women organizations whereat Samba Reddy is said to have tendered apology to the deceased Komala. This witness too admitted that he is the President of Youth Club. The evidence of P.W 8 shows that he saw Samba Reddy abusing Komala. In the cross-examination, he admitted that his mother is MPTC Member and he is an active member of TDP. The evidence of P.W 10 shows that she made enquiries about the cause of death of the deceased Komala and came to know that Samba Reddy was responsible for her death. Her evidence lacks in material particulars as to what is the source of information which prompted her to come to such a conclusion. Obviously, the witness has no personal knowledge on her own showing. It is not known whence the information has been gathered. In the absence of any such proof, the evidence of P.W 10 is relegated to that of mere hearsay. To inspire the confidence of the Court, such evidence is not sufficient. Above all when the husband of the deceased Komala himself is not coming forth to depose; who is the material witness; what credence can be attached to this type of oral evidence shall have to be seen. Grave allegation of abetting to commit suicide punishable under Section 306 of the Indian Penal Code against the said Samba Reddy and yet another grave allegation of Samba Reddy resorting to corrupt practices by asking the deceased Komala to distribute the money among the members of DWACRA Groups have been made. The evidence required to substantiate such allegations shall be clear and convincing and should inspire the confidence of the Court and the degree of proof having regard to the nature of the allegations made shall be beyond any doubt like in a criminal case. The type of evidence available on record coming from P.Ws 1, 6 to 8 and 10 does not inspire the confidence of the Court.

25. The oral evidence of these witnesses shall have to be appreciated with reference to the specific averments made in the election petition. It is averred in the election petition in para 7 that one G. Samba Reddy gave an amount of Rs. 8,000/- to Smt. P. Komala and asked her to distribute the same among the members of the DWACRA Group and that confessedly acting at the behest of the returned candidate, he requested her to see votes of all DWACRA members and their families be polled in favour of the returned candidate and that subsequent to the date of poll, the said Samba Reddy met Komala at vegetable market on 28.9.1999 at 6.00 a.m, and asked her as to why she had not distributed the money and further questioned her saying “Neevu Bharatiya Janata Party daggara votlu vehistamani dabbulu teesukoni panchakunda vunchukunnavu. Enduku panchaledu? Neevu vyabhicharivi” and that Komala replied that some of the amount had been distributed by her among the members keeping the remaining amount for the purpose of registration of the Association. A perusal of the articulations said to have been made by Samba Reddy italicised in the election petition clearly reveals that the said Komala received the money from BJP on the premise that she would get the votes polled and did not distribute the same. This obviously shows that the money was taken from the party but not from the candidate. The averment further shows that Samba Reddy claimed himself to have been acting at the behest of the first respondent. Apart from the fact that there has been no supporting evidence to prove the same, it does not reveal that there has been consent on the part of the first respondent for such an act on the part of Samba Reddy who styled himself as an agent. The consent shall have to be pleaded and proved. Any amount of evidence, which is not consistent with the specific pleading made inter alia in para 7 of the election petition cannot be considered. The Apex Court in Surinder Singh v. Hardial Singh, (1985) 1 SCC 91, held in para 34 thus:

“Disturbing the meeting as alleged in para 5 of the election petition in our view is not covered under sub-section (2) of Section 123 of the Act and is clearly an electoral offence dealt with by Section 127 of the Act. The allegations contained in para 6 of the election petition would perhaps come within Section 123(2)(a)(i) of the Act. In para 5 of the election petition the following fact had been pleaded:

“Then Respondent 1 told them not to allow the meeting to proceed at any cost and himself stayed behind.”

If this statement of fact is accepted consent of the appellant for disturbing the meeting can be found but in the absence of any specific plea that it was appellant's instruction that the electors should be threatened, the facts alleged in para 6 of the election petition cannot be accepted to have been with the consent of the appellant. Mr. Shanti Bhusan, learned Counsel for Respondents 1 and 2 has not disputed, and in our opinion rightly, that allegations of corrupt practice have to be strictly pleaded with material particulars and evidence beyond the ambit of plea would not be permitted to be led. Though there is some oral evidence to implicate the appellant, even for what followed the disturbance to the meeting, we do not think in the absence of the requisite plea such evidence can be entertained for any effective purpose.”

26. Very recently in V. Narayana Swamy v. C.P Thirunavukkarasu, (2000) 2 SCC 294, the Apex Court reiterated the same view.

27. For the above reasons, the oral evidence of P.Ws 1, 6 to 8 and 10 cannot be considered without any pinch of salt. Above all, it does not establish clearly that there has been consent on the part of the first respondent for the acts on the part of Samba Reddy even assuming for a moment that such an allegation is proved. Therefore, the oral evidence adduced on these issues falls far short of the requisite proof and shall have to be eschewed from consideration.

28. For the foregoing reasons, Issues 2 to 5 are answered in the negative.

Issue No. 6:

29. In proof of this issue, P.W 5 has been examined. According to the evidence of this witness, one Paranjyoti met him and informed him that the first respondent sent Gym material and an amount of Rs. 5,000/- and requested him to see that votes of the members of the Club were polled in favour of the first respondent. The witness further deposed that when he was at the polling booth, the first respondent met him and verified as to Paranjyoti had given the material and money or not. In the cross-examination, he admitted that he was the TDP worker and that on behalf of the party they organised a dharna in protest of refusing seat to the election petitioner by TDP. No other supporting evidence has been adduced on this issue except the sole testimony of P.W 5. The testimony of this witness that when he was at the polling booth the first respondent met him and verified as to whether Paranjyoti had given Gym material and money or not appears to be an improvement and an afterthought, having not been specifically pleaded in the election petition. In view of the inconsistency in the pleading and proof, the testimony of P.W 5 looses significance.

30. Having regard to the degree of proof required in such cases, the evidence of P.W 5 who obviously was not happy with his own Telugu Desam Party for having refused seat to the petitioner, alone cannot inspire the confidence of the Court. The learned Senior Counsel appearing for the petitioner contends that there has been no rebuttal evidence on the side of the first respondent and non-examination of Paranjyoti is fatal to the case of the first respondent. I am afraid that I cannot accede to the said contention for the simple reason that it is for the petitioner to prove his case. Having regard to the nature of the allegations made in the election petition, namely corrupt practices, the proof is certainly not by the test of preponderance of probabilities unlike in a civil case. The petitioner, therefore, cannot throw the blame on the first respondent while seeking shelter under the same. It is for him to establish the allegation made against the first respondent. Even assuming for a moment that the evidence of P.W 5 is true that Paranjyoti met him and gave him the Gym material and cash of Rs. 5,000/-, nowhere it has been pleaded in the election petition that the said Paranjyoti with the consent of the first respondent had done so. In the absence of any such consent on the part of the returned candidate, the acts of his followers and agents cannot validly bind him. When the consent has not been specifically pleaded, the evidence of P.W 5 that the first respondent verified with him at the polling booth as to whether Paranjyoti had distributed Gym material and the amount, cannot be accepted for want of the necessary pleading. This evidence of P.W 5 for the above reasons cannot bring home the issue.

Issue No. 7:

31. In proof of this issue, the petitioner examined P.W 3. According to the evidence of this witness, one Jagadish the nephew of the first respondent met him and made enquiries about one Purnachander and that in his presence he gave an amount of Rs. 4,000/- to Purnachander informing him that he would give the balance amount for distributing the same to the voters to help his uncle. Even on the own showing of this witness, Purnachander is an independent person having no affiliation to any of the political parties and he gave the amount to the said Purnachander. However, the said Purnachander was not examined in this case. No other evidence to bear out the testimony of this witness has been adduced. The petitioner in his evidence has not spoken to anything about this incident. The comment that no rebuttal evidence has been adduced on the side of the first respondent, as discussed hereinabove, cannot be countenanced. For the above reasons, in my considered view, the testimony of this witness does not inspire the confidence of the Court and therefore cannot be accepted without any pinch of salt.

Issue No. 8:

32. In proof of this issue, P.W 2 has been examined. According to the evidence of this witness, Jagadish came and informed him that he had been sent by his father-in-law to help him in the elections and he then sent an amount of Rs. 10,000/- with a request to distribute the same to the persons known to him. No doubt this witness says that he had done so at the behest of the first respondent through Jagadish. The evidence of this witness is in the nature of an accomplice as he squarely admitted that he knew pretty well that bribing the electorate was an offence. The evidence of P.W 3 shall have to be considered at this juncture. According to the evidence of P.W 3, when Jagadish enquired about P.W 2, he asked one of his friends, by name, Ravi to show the house of P.W 2 to the said Jagadish. But P.W 2 did not speak anything about the presence of Ravi, the friend of P.W 3. In that view of the matter, the evidence of P.W 2 cannot be taken into consideration without any pinch of salt. The specific evidence of this witness that Jagadish informed him that he (Jagadish) had been sent by his father-in-law and gave an amount of Rs. 10,000/- for distributing the same to the persons known to him stating that he was asked to do so by his father-in-law is not supported by any pleading in the election petition. In the absence of any such plea in the election petition the testimony of this witness suggesting consent on the part of the first respondent appears to be an improvement and an afterthought and, therefore, such evidence of a witness who is trying to make an improvement in the case does not, in my considered view, inspire the confidence of the Court. In that view of the matter, the sole testimony of P.W 2 cannot bring home squarely the issue.

Issue No. 9:

33. In proof of this issue, P.W 4 has been examined. P.W 4 claims himself to be the President of Kakatiya Youth Association. According to the evidence of this witness, one G. Ravi met him on 15.9.1999 at about 5.00 p.m, and informed him that an amount of Rs. 10,000/- was sent by the first respondent and gave that amount of Rs. 10,000/- and a cricket kit for distributing the amount to the residents of the colony requesting them to vote in favour of the first respondent. The evidence of this witness too suffers from the same vice of lack of proper pleading. The categorical evidence of this witness that Ravi informed him that an amount of Rs. 10,000/- was sent by the first respondent for the purpose of distributing the same to the voters since having not been supported by a pleading to that effect in the election petition appears to be an improvement and an afterthought. In the cross-examination, he admitted that there has been no record to show that he was the President of Kakatiya Youth Association. This type of evidence alone cannot, in my considered view, inspire the confidence of the Court and bring home the issue convincingly.

Issue No. 10:

34. The allegation is that the first respondent distributed utensils to the members of Mahila Sangam through one Kondal Reddy. P.W 9 has been examined in this connection. She claims herself to be the President of Mahila Sangam at Vangapadu Village. In the cross-examination, she admitted that her group is affiliated to TDP. This type of evidence alone cannot at all bring home the allegation of corrupt practices in an election petition squarely and convincingly having regard to the degree of proof required to bring home the alleged corrupt practice.

35. Even assuming for a moment that the oral testimony of P.Ws 2, 3, 4, 5 and 9 is true, such an evidence cannot help the petitioner in proving the alleged corrupt practices. It has not been specifically pleaded in the election petition that the persons who are alleged to have indulged in the corrupt practices have done so with the consent of the returned candidate. Of course, in para 6 of the election petition it has been averred in a general way that the election in question has been materially affected by the corrupt practices committed by the returned candidate, his agents with his consent under Section 123 of the Representation of the People Act, 1951 (for short ‘the RP Act’) and that the Respondent No. 1 committed various corrupt practices specifically the returned candidate, his election agents and his henchmen with his consent bribed the electorate by way of distributing cash through DWACRA Groups, youth clubs, student cricket clubs, youth associations, mahila sangham, etc., and thereby induced electorate to vote in his favour. This summarization is not sufficient enough when in other paras of election petition, the petitioner sought to categorize each corrupt practice in detail. In the absence of any such consent on the part of the returned candidate, they become the individual acts of those persons who are said to have indulged in such acts. It is germane in this context to refer to Section 123 of the RP Act which may be extracted hereunder to the extent it is necessary for the present purposes:

“123. Corrupt practices.—The following shall be deemed to be corrupt practices for the purpose of this Act;

1. “Bribery”, that is to say—

(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing—

(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or

(b) an elector to vote or refrain from voting at an election, or as a reward to—

(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or

(ii) an elector for having voted or refrained from voting;

(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward—

(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or

(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.

Explanation.—For the purpose of this clause the term “gratification” is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in Section 78.”

36. From a perusal of the above provision, it is obvious that indulging in bribery shall be by a candidate or his agent or by any other person with the consent of the candidate or his election agent. Even if the agent of the candidate or any other person without the necessary consent of the candidate indulges in such corrupt practices, of course, for the benefit of the candidate it will not amount to candidate indulging in corrupt practices. In the instant case, such consent has not been pleaded specifically in the election petition. For that reason alone, the oral testimony of the witnesses-P.Ws 2 to 5 and 9 shall have to be eschewed from consideration. That apart, such an evidence cannot bring home the charge of corrupt practice alleged against the first respondent. Therefore, the Issues 6 to 10 shall have to be answered in the negative.

Issue Nos. 1, 11, 12 and 13:

37. These issues are the comprehensive issues encompassing in themselves the whole gamut of the case. The election of the first respondent is now sought to be assailed mainly on the ground of corrupt practices. It is alleged that the first respondent resorted to the corrupt practices by distributing monies, utensils, cricket kits, Gym material, etc., to woo the voters to cast their votes in his favour. Section 83 of the RP Act is germane in this context to be considered at this juncture. It reads as under:

“83. Contents of petition.—(1) An election petition—

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.”

38. A perusal of the above excerpted provision shows that the election petition shall contain first a concise statement of material facts and then material particulars whenever the corrupt practice is pleaded. Therefore, the petitioner is required to furnish the material particulars of the instances where the returned candidate is said to have indulged in corrupt practices.

39. The Apex Court in Samant N. Balakrishna v. George Fernandez, (1969) 3 SCC 238 : AIR 1969 SC 1201, held thus:

“There may be some overlapping between material facts and particulars but the two are quite distinct. The material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information and to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words ‘material facts’ will be lost. The facts which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. An election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information.

The election petition shall disclose the actual and specific assistance with which the elected person can be charged in violation of the provisions of the Act.”

40. The Apex Court in Hardwari Lal v. Kanal Singh, (1972) 1 SCC 214 : AIR 1972 SC 515, reiterated the same proposition of law. It was held thus:

“‘Particulars’ on the other hand, are “the details” of the case set up, by the party. ‘Material particulars’ within the contemplation of clause (b) of Section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). ‘Particulars’ serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full more detailed and more informative.”

41. Again in Shri Udhav Singh v. Madhav Rao Scindia , (1977) 1 SCC 511 : AIR 1976 SC 744, the Apex Court has succinctly distinguished the “material facts” and “material particulars”.

42. In Azhar Hussain v. Rajiv Gandhi, 1994 Supp (2) SCC 446 : AIR 1994 SC 2277, it was held that an election petition must be dismissed if the mandatory requirements of Section 83 of the RP Act are not complied with.

43. Very recently in V. Narayana Swamy v. C.P Thirunavukkarasu (supra) it was held thus:

“In case of defect in material facts, the petition is to be rejected at the out set, but in case of defect in material particulars it can be cured subsequently. But where in spite of having sufficient opportunity to cure the defect in material particulars, petitioner files to cure the defect, petition has to be rejected. It is not the duty of the High Court to suo motu direct the petitioner to furnish better particulars.

The omission of a single material facts leads to an incomplete cause of action and the statement of claim becomes bad.”

44. It may be mentioned here that the first respondent filed an application requesting this Court to reject the election petition precisely on the same point that the election petition lacks in material particulars. That application has been dismissed by this Court on the ground that it is a curable defect and the petitioner can cure the defect at any point of time. Notwithstanding the same, the election petitioner has not chosen to amend the petition by furnishing better particulars. Various corrupt practices have been alleged as can be seen from Issues 6 to 10 and 2 to 5. All such corrupt practices require certainly the details, namely the date and time, the place etc. Except the bald allegation that monies have been given for distribution and articles like cooking utensils, Gym material, cricket kits have been given, no other details were furnished. Such allegations require some more details as to when and where and at what time they have been given. It may be further mentioned that the allegations if proved would have the effect of setting aside the mandate of the people in returning a particular candidate. The purity of the election and sanctity of the votes in such cases would be lost on account of the corrupt practices sought to be indulged by the returned candidate. To outweigh the view of the people, which is the majority, the proof required must be so strong and convincing.

45. It is now well settled that the charge of corrupt practice is substantially akin to a criminal charge. It entails serious penal consequences too. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections in future for considerably long time. Therefore such accusations shall have to be proved like a criminal charge. In Ch. Razik Ram v. Ch. J.S Chouhan, (1975) 4 SCC 769 : AIR 1975 SC 667, the Apex Court held thus:

“It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt. Charge of corrupt practice, which cannot be established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it must hold the same as not proved.

A Court embarking upon an appreciation of evidence, without this rudder and compass, is apt to find itself at sea, mistaking every flotsam for shore, suspicion for proof and illusion for reality.”

46. Similarly in Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611 : AIR 1986 SC 3, a three Judge Bench of the Apex Court held that in respect of allegation of corrupt practices, strict proof is necessary. In N.C Zeilang v. Aju Newmai, 1980 Supp SCC 591 : AIR 1981 SC 8, Magraj Patodia v. R.K Birla, (1970) 2 SCC 888 : AIR 1971 SC 1295, K.M Mani v. P.J Anthony, (1979) 2 SCC 221 : AIR 1979 SC 234, Laxmi Narayana Nayak v. Ramratan Chaturvedi, (1990) 2 SCC 173, Ramji Prasad Singh v. Ram Bilas Jha, (1977) 1 SCC 260 : AIR 1976 SC 2573, and R.P Moidutty v. P.T Kunju Mohammad, (2000) 1 SCC 481, the Supreme Court reiterated the same principle.

47. In A. Younus Kunju v. R.S Unni, (1984) 3 SCC 346, in para 5 the Apex Court held that the oral evidence of witness belonging to rival political party cannot form sole basis of proof of corrupt practice, as it comes from tainted source.

48. In view of the said observations of the Apex Court, the oral evidence of P.Ws 1 to 10 who independently seek to prove various corrupt practices mentioned in issues 6 to 10 without there being any corroboration cannot safely be taken into consideration inasmuch as the testimony of majority of these witnesses is emanating from a tainted source since they too belong to the party to which the election petitioner belongs and when the election petitioner denied the party ticket these people supported his candidature as against the party decision. Therefore, such type of evidence cannot be held to be sufficient enough to bring home the charges of corrupt practices alleged in this case.

49. Sri S. Ramachandra Rao, learned Senior Counsel appearing for the petitioner, seeks to contend that it will be difficult to get direct evidence in proof of the allegation of a corrupt practice and it is open to the Court to infer from the circumstantial evidence. He seeks to rely upon a judgment of the Apex Court reported in Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611 : AIR 1986 SC 3. In para 20 the Apex Court sought to rely upon its earlier judgment in Samant N. Balakrishna v. George Fernandez and quoted the dictum thus:

“The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must point unerringly to the conclusion and must not admit of any other explanation.”

50. The learned Senior Counsel further represents that even a single corrupt practice committed by the candidate or his election agent or by any other person with the consent of the candidate or his election agent, is fatal to the election. Much emphasis is sought to be laid on Issues 2 to 5. There can be no quarrel with the proposition of law sought to be highlighted by the learned Senior Counsel. If the corrupt practice alleged and covered by Issues 2 to 5 is proved undoubtedly notwithstanding the finding to be given on all other issues in the negative, that is sufficient enough to interfere with the election of the first respondent. But the question is the proof and the quality of evidence adduced. There are no circumstances emanating from the record from which it can be inferred the necessary consent on the part of the first respondent. It is settled law that the circumstances in regard thereto must be in the first instance fully established and the proved circumstances shall not be susceptible of any other hypothesis than the one which clearly and unerringly points out the required inference. Before that, it must be shown before the Court as to what are the circumstances emanating from the record. No such circumstances have been pointed out in this case, nor are they discernible from the record. The whole effort on the part of the petitioner seems to be to take advantage of the situation when Poreddi Komala committed suicide. The facts leading to such an act on the part of the deceased woman, if assumed to be true for a moment, would only establish the alleged act on the part of Samba Reddy. The question that the Samba Reddy had the necessary consent of the first respondent is an altogether a different issue and indeed becomes the material issue to be proved in this case. To prove such consent on the part of the first respondent, there must be direct or circumstantial evidence. As discussed hereinabove and the specific averment made in the election petition excerpted hereinabove would suggest that it is the party which has given the money but not the candidate in which event the necessary consent on the part of first respondent is excluded. For the above reasons, the contention of the learned Senior Counsel cannot be countenanced. For the reasons hereinabove discussed, I am of the considered view that the election petitioner has failed in establishing various corrupt practices alleged inter alia in the election petition and for that reason, the election of the first respondent cannot be interfered with.

51. In the result, the Election Petition fails and is accordingly dismissed with costs. The Advocate's fee is fixed at Rs. 2,500/- (Rupees Two thousand and five hundred).