TaxTMI 
TaxTMI 
1996 (2) TMI 539
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 exercis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 E....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enied 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ures 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 ....