DATTAJI SAKHARAM SHINDE Vs. PREMANAND VITHAL AWALE

JUDGEMENT

(1.) AFTER review of pleadings and appreciation of evidence His Lordship proceeds]. The burden of proving that the election) of a successful candidate is liable to be set aside lies heavily upon the petitioner and unless this is established, not by mere preponderance of probability, but by cogent and reliably evidence beyond any reasonable doubt, the petition must fail. (See Jagdev Singh v. Pratap Singh : [1964]6SCR750 .) Mr. Kamerkar submitted that these observations are appropriate in the context of an election petition alleging corrupt practice. He submitted that the same standard would not apply where the basis of the petition was not corrupt practice. I am unable to agree. The emphasis is on the fact that the election of a successful candidate should not be lightly set aside. The same responsibility that lies on the petitioner in an election petition alleging corrupt practice also lies upon him in a petition which challenges the election on other grounds.

(2.) MR . Mehta drew my attention to the judgment of the Supreme Court in Chand -mal v. State of Rajasthan : 1976CriLJ679 . The Supreme Court observed that it is well settled that when a case rests entirely on circumstantial evidence the evidence must satisfy three tests. Firstly, the circumstances from which an inference is sought to be drawn, must be cogently and firmly established; Secondly, these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the charge is established, that is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that sought to be drawn. The observations were made in the context of a criminal case but no doubt apply equally to an election petition which partakes of a quasi criminal character. My attention has also been drawn to a judgment of the Supreme Court wherein in an election petition resting entirely on circumstantial evidence, a similar approach was adopted. (See Ram Ram v. Smt. Prasanni : [1959]1SCR1403 ).

(3.) THIS is not to say that the four circumstances which I have held are established: do not raise the most grave suspicion, suspicion which remains unallayed. But, of course, suspicion however grave is not enough.