Das Gupta, J.

1. The appellant Brij Mohan Singh and the respondent Priya Brat Narain Sinha were among the candidates who contested the Aurangabad Constituency seat for the Bihar Legislative Assembly at the General Election held in 1962. The polling took place on February 21, 1962. The appellant received a majority of votes and was declared elected. The respondent Priya Brat Babu who was the sitting member was defeated on April 9, 1962, he filed a petition challenging the validity of the appellants election: He prayed for a declaration that the election of the appellant Brij Mohan Singh be declared void and that he (Priya Brat Narain Sinha) be declared to have been duly elected to the Bihar Legislative Assembly from the Aurangabad Constituency. Among the grounds on which the appellants election was challenged were these three :

(1) That the appellant was born on October 15, 1937 and was thus under 25 years of age on the date of filing the nomination papers and therefore disqualified under Art. 137 of the Constitution from being a member of the Bihar Legislative Assembly;

(2) That he held subsisting contracts under the Bihar Government in his individual and personal capacity and was thus disqualified under Section 7(d) of the Representation of People Act;

(3) That the appellant, and with his consent, his party men Rameshwar Prasad Singh and others (whose names are mentioned) were directly responsible for publication and distribution of copies of leaflets containing direct insinuations and aspersions against the respondents personal character, these being false to the knowledge of the appellant.

2. The Election Tribunal held on a consideration of the oral and documentary evidence produced before it that none of these or the other grounds on which the validity of the election was challenged had been established. Accordingly, the Tribunal dismissed the petition.

3. On appeal, the High Court of Judicature at Patna set aside the judgment and order of the Election Tribunal and made an order setting aside the election of the appellant Brij Mohan Singh to the Bihar Legislative Assembly. The High Court however refused the respondents prayer to be declared duly elected.

4. Against this order of the High Court the present appeal has been preferred on a certificate granted by the High Court under Art. 133(1)(b) of the Constitution.

5. The only grounds that appear to have been pressed before the High Court were the three which we have mentioned above. The High Court agreed with the Election Tribunal that the allegation that the appellant held a contract under the Government in his personal capacity had not been established. As regards the other two grounds the High Court disagreed with the Election Tribunal. The High Court held that the appellant was below the age of 25 years on the date of filing the nomination and was therefore not qualified to be a candidate for the Bihar Legislative Assembly. The High Court also held that the appellant had published a leaflet Ex.10 containing attacks upon the personal character of the respondent and was thus guilty of a corrupt practice within the meaning of S. 123(4) of the Representation of the People Act. As already stated, the High Court set aside the election of the appellant.

6. The findings of the High Court on the question of age and also on the question of publication of the document Ex. 10 have been challenged before us. It was also urged that in any case the pamphlet Ex. 10 did not amount to an attack on the personal character of the respondent.

7. Both the parties adduced oral and documentary evidence on the question of age. While the respondent (the petitioner in the Election Petition) tried to prove that the appellant Brij Mohan Singh was born on October 15, 1937 the appellants attempt was to prove that he was born on October 15, 1935. The oral testimony on either side is equally useless and unreliable. The three persons who gave evidence on behalf of the respondent to show that Brij Mohan Singh was born in 1937 are (1) Dharamdeo Singh, P. W. 6; (2) Raghonarain Singh, P.W. 7 and (3) Ramjanam Singh, P. W. 61.

8. Dharam Deo Singhs story is that he met appellants father Sarjoo on the Dushera day in 1937 when he had gone to Aurangabad to see the immersion ceremony of goddess Durga and that at once Sarjoo gave him the good news that a son had been born to him on that day. He admits that he was no relation of Sarjoo nor does he claim to have been his friend. They did not even belong to the same village. It is not probable in these circumstances that Sarjoo would volunteer to this witness the news of the birth of a son to him. P. W. 7, Ragho Narain Singh has also made a statement that Brij Mohan Singh was born on the Dushera day of P. W. 37. It is interesting to notice that he does not disclose from whom he got this information. He has said that he was Manager of Kunda Estate and Law Superintendent of Hasauli Estate in P. W. 37 and attended the Thuzi of these estates which used to be held on the Dushera day in 1937. He has said that Sarjoo Singh came to the Tauzi of the Hasauli Estate on that day in 1937 and stayed there till about 2 p. m. Assuming that one reads into his evidence a statement which he has refrained from making expressly, that Sarjoo told him about the birth of a son to him, we have to take note of the fact that Sarjoo was neither his friend nor relation. There is no explanation as to why Sarjoo would come and volunteer such a statement to him. It has to be noticed in this connection that this witness if President of Aurangabad Mandal Committee of the Congress and admittedly worked for the Congress before the election and did election compaign in Kunda in Aurangabad at the last General Elections for Priya Brat Babu who was the Congress candidate. It is not possible in these circumstances to place any reliance on his testimony. Ramjanam Singh, P. W. 61 who has also said that Brij Mohan Singh was born on Dushera day in 1937 claims to be Brij Mohans mausera Bhai; i. e. Brij Mohans Mothers sisters son. He also claims to have been told about Brij Mohan Singhs birth on Dushera day in 1937. It is interesting to note that although he claims to be such a close relation of Brij Mohan he could not give the name of Brij Mohans sister. He also admitted his inability to give the year of birth of any member in Brij Mohans family. Ultimately, he admitted in cross-examination that he did not know any one in Brij Mohans family excepting Brij Mohan. But even about Brij Mohan he could not say in which year Brij Mohan was married and in which village. The last damaging statement which he made in cross-examination was that he had consultations with Priya Brat Babu about the evidence he had to give and that this consultation took place on February 11, 1962, that is, even before the date of polling. This witness is therefore clearly a thoroughly unreliable witness. We have no doubt that he had no knowledge about Brij Mohans date of birth and has deliberately given false evidence to help the petitioner, Priya Brat Narain Singh.

9. On behalf of the appellant evidence was given by his father Sarjoo Singh and several other persons to show that he was born in October, 1935. These witnesses are also all interested persons and though some of them were apparently more competent to give evidence about Brij Mohans date of birth than the petitioners witnesses, we find it difficult to base any conclusion on this question on their evidence. Nor can we find anything in the evidence of the witnesses which supports the petitioners story that the appellant was born in 1937. The High Court seems to think that the statement of Maheshi Singh, R. W. 4 that Brij Mohans father Sarjoo Singh was appointed a peon before the birth of Brij Mohan, takes with Sarjoos own evidence that he was appointed a peon for the first time in 1936 lends some support to the petitioners case. We do not think it will be reasonable to attach much weight to Maheshi Singhs statement that Sarjoo was appointed a peon before Brij Mohans birth. It has to be remembered that he was speaking of an event which took place between 25 and 27 years age and could easily make a mistake as to sequence of the event of Brij Mohans birth and the appointment of Sarjoo as a peon. In our opinion, it will be as unsafe to accept his statement that Sarjoo was appointed a peon before the birth of Brij Mohan as it would be to accept his evidence in examination-in-chief indicating that Brij Mohan was born in Kartik 1935. Besides all that, what his statement in cross-examination shows is that Brij Mohan was born in 1936 or thereafter; Brij Mohan would still be over 25 years of age on the date of nomination if to was born up to January, 1937 and this is not ruled out by this statement, even if any reliance can be placed upon it.

10. On an examination of the oral testimony on other side we are of opinion that no conclusion on the question of age can be based on that evidence.

11. It is proper to point out that the Tribunal which had the opportunity of seeing the witnesses rejected the evidence of the petitioners witnesses as untrustworthy and did not also place any reliance on the testimony of the witnesses examined on behalf of the appellant. The High Court, which has clearly not accepted the evidence given on behalf of the appellant, has also not based its conclusion on the oral testimony given on behalf of the petitioner. It is true that it has ultimately accepted the petitioners case; but that is on the basis of the documentary evidence, which we shall discuss later.

12. The Tribunal arranged for the appellants medical examination as regards his age by the Civil Surgeon, Gaya, who was then examined as a court witness. The witness gave evidence on the basis of the ossification of thyroid cartilege and the character of the third molar and other factors disclosed by X-ray examination of Brij Mohan. The Civil Surgeons opinion was that Brij Mohan was 27 on the date of examination in 1962. We agree with the High Court that no value can be attached to this evidence.

13. This leaves for consideration the documentary evidence that has been adduced in the case.

14. The document on which the Election Tribunal mainly based its conclusion in favour of the appellant is a hath-chitha stated to have been maintained by the Chowkidar of the village Dabura Khurd where the appellant was born. In this document there is an entry purporting to show the date of birth of a son to Sarjoo Singh a resident of the Village Dabura Khurd on October 15, 1935. It is nobodys case that this Sarjoo Singh, a resident of Dabura Khurd, was any other person than the appellants father. It does not also appear to be disputed that the appellant was the eldest child of Sarjoo Prasad Singh. If this entry is available in law it would be a strong and indeed almost conclusive evidence of the appellants case that he was born on October 15, 1935. The High Court was however of opinion that this was a fabricated document brought into existence for the purpose of this case and further that it was not admissible in evidence in the circumstances of the case. In view of the difference of opinion between the Election Tribunal and the High Court as regards the genuineness of this document we have examined it closely and carefully. We do not think the High Courts conclusion that the document (hath-chitha) was fabricated for the purpose of this case is justified on the materials on the record.

15. The document was produced before the Tribunal by Jogeshwar Dusadh Chowkidar (R.W. 58). It appears that a summons was first sent to him at the instance of the appellant for appearance in court with the hath-chitha of the Village Dabura Khurd for the years 1934 to 1936. He did not obey that summons. A warrant was then issued for the arrest and production of the Chowkidar before the Tribunal along with these hath-chithas. This warrant was executed on September 19. The chowkidar was arrested and produced before the Tribunal the following day through a lawyer the hath-chitha book which has later been marked as Ex. K. Giving evidence on oath on November 5, 1962 he has said that he was working as a Chowkidar of Dabura village for the last 33 years and that when Sarjoo Singhs eldest son Brij Mohan Singh was born he got an entry about his birth made in this hath-chitha book. As he is illiterate he used to have the entries in the Hath-Chitha Book made during this period by Ganpat Singh and Khelawan Singh. The judgment of the High Court states that this witness appears to be a lying witness in view of the numerous statements elicited from him in cross-examination that it appeared that this witness was suborned to depose in favour of Brij Mohan Singh at a late stage and that the hath-chitha was brought into existence subsequently to lend support to his case.

16. One reason given by the High Court for doubting the genuineness of the document is that the hath-chitha bahi should have been deposited in the police station after it had been exhausted and should not have been in the custody of the Chowkidar. Another reason given is that Azim Khan or S. K. Sahai whose endorsement appeared in the hath-chitha were not shown to have been officers-in-charge of the police station at the relevant time. Yet another reason for the High Courts suspicion about the genuineness of the hath-chitha book appears to be that Ganpat Singh and Khelawan Singh whose handwritings the book is said to contain are both dead. The fact that the Chowkidar did not disclose to the Sub-Inspector, at the time of the execution of the warrant of arrest, that the hath-chitha was with him, is stated as a further reason for thinking that it was brought into existence at a later stage. None of these reasons bear scrutiny. We have gone through all the, statements made by this witness in cross-examination and do not find anything to justify the High Courts charcterisation of the witness as a lying witness". We see nothing surprising or suspicious in that two persons Ganpat and Khelawan whose statements the document is said to contain are dead. It has to be remembered that the entries are claimed to have been made about more than 25 years ago. Even if Ganpat and Khelawan Singh were young people then one need not feel surprised that they are dead now. Nothing has been shown to us that the rules required the hath-chitha book to be deposited in the police station after it was exhausted. The fact that the Chowkidar did not disclose to the Sub-Inspector at the time of his arrest that he had this document with him is also easily explained. It was not difficult for him to understand that important and influential persons set great store by this document so that he thought the wisest course for him would be to produce it in court through a lawyer. It also appears to us to be of little consequence that Azim Khan and S. K. Sahai have not been shown to the officers-in-charge of the police station at the relevant time. For it is not unusual that some other police officer though he is not the officer-in-charge, would put his initials on the hath-chitha book. It may be mentioned in this connection that Respondents Witness No. 64 Osmond a retired Inspector of the Bihar police - said that Azim Khan was an Assistant Sub-Inspector attached to Aurangabad Thana in 1935. He has, it is true, also said about S.K. Sahai that he was not attached to Aurangabad Thana in 1934. It has to be remembered however that his witness himself had nothing to do with the Aurangabad Thana at the time and that he has admitted that he did not know S.K. Sahai. It will not be proper therefore to base on his evidence a conclusion that S. K. Sahai was not an officer of the Aurangabad Thana during the period for which his initials appear on the hathchitha book.

17. On an examination of the physical appearance on the hath-chitha and the entries made therein, the evidence of the Chowkidar and the circumstances under which this document was ultimately produced before the Tribunal we are inclined to agree with the view of the Election Tribunal that this is a genuine document which was maintained by the Chowkidar in the discharge of his official duty. If the document had been manufactured to assist the appellant we do not think it likely that the Chowkidar would have refused to produce it readily when summoned to do so. The fact that a warrant of arrest had to be executed against him is a convincing circumstance that the Chowkidar was unwilling to produce it. We are not impressed by the argument of Mr. Sarjoo Prasad that the omission of the Chowkidar to produce the document in obedience to the summons and the issue of warrant of arrest to secure its production were all pre- arranged to create an atmosphere for the acceptance of the document as genuine. The appellants lawyers before the Election Tribunal could not possibly have been sure that the Tribunal would in the last resort issue a warrant of arrest. It is not likely that they would, take such risk so that the document might not tome at all.

18. In our opinion, this document is genuine and is the book that was maintained by the Chowkidar for noting the births in his llaka during the years 1934 to 1936. The entry therein showing the birth of a son to Sarjoo Singh on October 15, 1935 can however be of no assistance to the appellant unless this entry is admissible in evidence under the Evidence Act. If this entry had been made by the Chowkidar himself this entry would have been relevant under S. 35 of the Evidence Act. Admittedly, however, the Chowkidar himself did not make it. Mr. Agarwal tried to convince us that when an illiterate public servant is unable to make an entry himself and he gets the entry made by somebody else this should be treated as an entry made by the public servant. This argument must be rejected. The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within S.35 of the Evidence Act. It is not suggested that the entry is admissible in evidence under any other provision of the Evidence Act. The entry in the hathchitha has therefore to be left out of consideration in coming to a conclusion about the appellants age.

19. Strong reliance was placed on behalf of the petitioner-respondent on three documents Ex. 2, Ex. 8 and Ex. 18. The first of these is the admission register of Aurangabad Town School where the appellant took his admission as a student on January 19, 1946. In the entry as regards his admission in the register the date of birth is shown as October 15, 1937 and the age as eight years, three months and three days. The second Exhibit (Ex. 8) is an application made by the appellant on August 26, 1959 for the post of a Sub-Inspector of Police. Here also the date of birth is shown as October, 15, 1937. The third document is Ex. 18. It is a certificate issued by the Bihar School Examination Board for his passing the Matriculation Exmaination. This also states the date of birth as October 15, 1937.

20. An objection was faintly raised by Mr. Agarwal as regards the admissibility of Ex. 2 on the ground that the register is not an official record or a public register. It is unnecessary to consider this question as the fact that such an entry was really made in the admission register showing the appellants date of birth as October 15, 1937 has all along been admitted by him. His case is that this was an incorrect statement made at the request of the person who went to get him admitted to the school, the request was made, it is suggested, to make him appear two years younger than he really was so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The appellants case is that once this wrong entry was made in the admission register it was necessarily carried forward to the Matriculation Certificate and was also adhered to in the application for the post of a Sub-Inspector of Police. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an act of making a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellants explanation. Taking all the circumstances into consideration we are of opinion that the explanation may very well be true and so it will not be proper for the court to base any conclusion about the appellants age on the entries in these three documents. viz., Ex. 2, Ex. 8 and Ex. 18.

21. On an examination of the entire evidence, oral and documentary, we therefore reach the position that the petitioner-respondent has not been able to prove that the appellant Brij Mohan was below 25 years of age on the date of filing of nomination papers while the appellant himself has also not been able to show that he was at least 25 years of age on that date. It cannot be disputed and is not disputed that the burden of proving that the appellants age was below 25 years on the date of his nomination was on the petitioner-respondent. The petition in so far as it is based on the ground that the appellant was below 25 years of age on the date of his nomination must therefore fail.

22. This brings us to the question of the alleged commission of a corrupt practice under S.123(4) of the Representation of the People Act. The petitioners case was that the pamphlet Ex.10 contained statements in relation to his personal character reasonably calculated to prejudice prospects of his election, that these statements were false and the appellant either believed them to be false or did not believe them to be true and that this was published by Brij Mohan himself and also by other persons with his consent. To prove such publication the petitioner relied strongly on the testimony of some witnesses who spoke of the distribution of such pamphlets in Bazars and other places in the constituency and even more strongly on the evidence to the effect that the order for printing these pamphlets was given to the press by Brij Mohans agent. Rameshwar Prasad Singh, that Brij Mohan paid for it and that the manuscript itself was in Brij Mohans own handwriting. The oral testimony about the distribution of the pamphlets is of very little value. We have examined the evidence of each of these witnesses and find that the comment of the Election Tribunal that they have given the story in a parrot-like manner is justified. They are all partisan witnesses and could easily be induced to give such evidence falsely. The Election Tribunal found them unworthy of credit. It does not also seem that the High Court was prepared to rely on this evidence by itself. The High Court was, however, convinced from the evidence of the Proprietor of the Press who gave evidence as Court Witness No. 2 that this pamphlet was printed under Brij Mohans orders and was paid for by him, and only in view of this conclusion it considered the evidence of the witnesses, examined on behalf of the petitioner-respondent to be "fairly strong."

23. There can be no doubt that this pamphlet Ex.10 was printed at the Gokul Press, Aurangabad, Gaya, Sheonandan Prasad is the proprietor of this press and was its proprietor in February 1962 when this pamphlet was printed. He has produced the order book of the press and indicated the Entry No. 62 in that book as the entry in respect of the printing of this pamphlet at his press. He also produced the manuscript from which the pamphlet was printed. It is interesting to notice that this witness did not appear before the Tribunal on August 27, 1962 in spite of the service of two summons on him to appear on that date. It was when a notice served on him to show cause why he should not be prosecuted under S. 174 of the Indian Penal Code that he appeared before the Tribunal. That was on August 31, 1962. Then, on September 3, 1962 he showed cause against his prosecution. Thereafter on September 4, 1962 he produced the order book of his press and the document said to be the manuscript for the pamphlet. As entry No. 62 in the order book now stands, it purports to show that this pamphlet with the words Bagula Neta Se Hoshiar was printed there for, under the words indicating the place of residence of the person who gave this order these words "Bagula Neta Se Hoshiar" appear. They are however in different ink from the rest of the handwriting in that entry and are clearly an interpolation. Sheonandan himself admits that he inserted these words before filing the book before the Tribunal either on September 3, 1962 or on September 4, 1962. He further made a significant admission in these words; "Because of the request of Naulakh Singh I made the insertion in the Register some time on the 3rd or 4th of September so that the member may easily understand the order in the Register by which the said parody was ordered to be printed." Naulakh is admittedly one of these who worked for the respondent during the election. It is not possible to accept a witness who has admittedly made a false document in the manner as a witness of truth. The fact that he confessed having made the interpolation does not improve his credibility.

24. It is also worth noticing that this Entry No. 62 mentions three kinds of things as printed:- (1) 1,000 copies of poster; (2) 2,000 copies of notice and (3) 2,000 copies of ballot papers. The pamphlet Ex.10 is clearly not included in the terms "poster"; it is certainly not a ballot paper; and it will hardly be right to call it a notice.

25. On a consideration of all the circumstances we are of opinion that no reliance can be placed on his testimony and no conclusion can be based on his evidence as regards the printing of this pamphlet under orders from the appellant.

26. Naulakh who is another witness who has tried by his evidence to connect Brij Mohan with the printing of this pamphlet, is equally untrustworthy. He stated that during the first week of February 1962 when he went to Gokul Press Arurangabad he found Rameshwar Prasad Singh there and saw in Rameshwar Prasads hand a manuscript similar to this pamphlet and that in his presence Rameshwar Prasad placed orders for printing this parody in the press. He says that he read the manuscript and thus understood that it was directed against Priya Brat Babu. He could not however remember for what purpose he visited Gokul Press on that day. This, one has to remember is the witness at whose request Sheonandan, the Proprietor of the Gokul Press made the interpolation in the order book. No reliance can be placed on the evidence of such a witness.

27. It is interesting to notice that though some document was produced in court by Sheonandan as the manuscript from which the pamphlet had been printed and it was petitioners case that this document was in Brij Mohans own handwriting no attempt was made to prove the identity of the writer by examining a hand-writing expert or otherwise.

28. P. N. Singh (P.W. 60) who claims to have seen the manuscript of Ex. 10 in the Gokul Press in January 1962 and states that this manuscript was in Brij Mohans own handwriting was not even recalled to identify the writing of the document that was produced by Sheonandan as the manuscript, as Brij Mohans.

29. On a consideration of the entire evidence we are of opinion that the petitioner respondent has not been able to prove the publication of this pamphlet Ex. 10 by the appellant or his agent or by any other person with the consent of the appellant or his election agent. We therefore accept as correct the conclusion of the Election Tribunal that the commission of any corrupt practice by the appellant under S. 123 (4) of the Representation of the People Act has not been proved and that the contrary view taken by the High Court is wrong.

30. In view of our conclusion on the question of publication we have not thought it necessary to examine whether the other ingredients of a corrupt practice under S. 123 (4) were established.

31. As neither of the two grounds on which the High Court based its conclusion can be sustained, the High Courts order allowing the Election Petition must be set aside.

32. Accordingly, we allow the appeal, set aside the order of the High Court and restore the order of the Election Tribunal dismissing the election petition. The appellant will get his costs from respondent No. 1 throughout.

33. Appeal allowed.