Rajasthan High Court - Jodhpur
C.P.Joshi vs Kalyan Singh Chouhan & Anr on 31 August, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
S.B. Election Petition No. 1/2009
C.P. Joshi Vs. Kalyan Singh Chouhan
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
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:: J U D G M E N T ::
C.P. Joshi Vs. Kalyan Singh Chouhan
S. B. ELECTION PETITION NO. 1/2009.
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Date of Judgment :::: 31st August 2012.
PRESENT
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. M.S. Singhvi, Senior Advocate with Mr. Arun Bhansali and
Hemant Dutt, for the petitioner.
Mr. L.R. Mehta with Mr. Vijay Bishnoi and Mr. Ramit Mehta, for
the respondent.
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REPORTABLE BY THE COURT:
PRELIMINARY The petitioner Shri C. P. Joshi, who had been the candidate of Indian National Congress from the Nathdwara Legislative Constituency No. 176 in the general elections held on 04.12.2008 for constitution of the 13th Rajasthan Legislative Assembly, has preferred this election petition questioning the result whereby the respondent Shri Kalyan Singh Chouhan, the candidate of Bhartiya Janta Party, was declared elected, defeating him by a margin of one (01) vote.
The petitioner has questioned the election of the respondent essentially on two counts: One, that the wife of the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 2 respondent cast her votes at two Polling Stations namely, Polling Station No. 39 and Polling Station No. 40 of the said Nathdwara Legislative Assembly Constituency No. 176; and Second, that some of the votes as mentioned in the petition were improperly received wherefor the genuine voters submitted their tender votes. The petitioner has prayed for the orders for recount of the votes while excluding the votes cast twice over by the wife of the respondent; and further, while excluding the improperly received votes and in their place, including the tendered votes of the genuine voters.
Although the factual matrix of the case lies rather in a narrow compass but, the nature of dispute and the stand of respective parties have led to multiple questions during the course of long-drawn trial of the petition and so also during the length of arguments. Some of the objections raised and the interlocutory applications moved during the course of trial have been kept pending decision, which shall be taken up hereafter at the appropriate place and juncture, for being co-related with some particular question calling for determination or any particular line of arguments.
Worthwhile it is to notice at the outset that so far the question regarding tendered votes is concerned, though initially in the petition, the petitioner gave out the particulars regarding six (06) such votes but, during the course of trial and arguments, the case in regard to four (04) such votes has been given up; and the material evidence on record, oral and documentary, is in relation to only two (02) of them. Hence, so S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 3 far tendered votes are concerned, the matter shall be considered herein only in regard to those two (02) votes.
It may also be pointed out that initially, in this election petition, the Election Commission of India was joined as a party respondent No. 2 and the returned candidate Shri Kalyan Singh Chouhan was joined as the respondent No. 1. However, by an order dated 10.07.2009, the Election Commission was deleted from the array of parties and thereby, only the respondent No. 1 Shri Kalyan Singh Chouhan has remained as the sole respondent in the case and has, accordingly, been referred herein. Although, in the pleadings as originally filed, the expression 'respondent No.1' was used and the pleadings have otherwise not been amended hence, the same expression would occur at some of the places herein, particularly when any part is reproduced but, evident it is that such expression now refers only to the sole respondent. PLEADINGS OF THE PARTIES For comprehension of the issues involved in the matter on the stand of the respective parties, necessary it is to take note of the relevant pleadings. Firstly, the relevant contents of the petition could be summarised as follows:
The petition In this petition, the petitioner has referred to the fact that general elections to constitute 13th Rajasthan Legislative Assembly were notified by the Election Commissioner; and in S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 4 exercise of the powers conferred by Section 30 of the Representation of the People Act, 1951 ('the Act of 1951'), the Election Commission issued a notification dated 10.11.2008 notifying the programme for holding the elections. The petitioner has referred to the different dates for making of nominations etc. and has pointed out that the date of poll was fixed as 04.12.2008 and the date of counting of votes as 08.12.2008.
In paragraph 4 of the petition, the petitioner has averred that he filed his nomination paper in four sets from Nathdwara Legislative Assembly Constituency No. 176 as a candidate of Indian National Congress on 17.11.2008 whereas, the respondent filed his nomination paper in four sets from this constituency as a candidate of Bhartiya Janta Party. The petitioner has averred that his name appears at serial number 365 in Part No. 82 of the Electoral Roll of the Nathdwara Legislative Assembly Constituency No. 176; and that the respondent had shown his name appearing at serial number 483 in Part No. 39 of the Electoral Roll of this constituency.
The petitioner has further averred that after the date of withdrawal, in all, 7 candidates remained in the fray including himself and the respondent; and that polling for the election was held on 04.12.2008 when the voters exercised their right of franchise by Electronic Voting Machines ('EVMs'). The petitioner is said to have appointed Shri Subhash Choudhary, Advocate as his election agent.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 5 The petitioner has further pointed out that the counting of votes for the said Constituency No. 176 took place on 08.12.2008 where, after counting the postal ballots, the controlling units of EVMs were opened and the votes recorded therein were counted; then, the Returning Officer prepared the tabulation of the votes cast in favour of each of the candidate and the rejected votes; and at the end of the counting, it was found that the respondent had secured one (01) vote more than those secured by the petitioner. However, the tendered votes were not counted.
The petitioner has further averred that although an application for re-count was made on his behalf and pursuant to the order thereupon, re-count was undertaken but the result remained unchanged. The petitioner has, thereafter, given out the details of the votes polled in favour of each candidate, of the rejected votes, and of the tendered votes as under:-
S.No. Name of Candidate Party Affiliation No. of votes polled 1 Kalyan Singh Chouhan Bhartiya Janta Party 62216 2 C. P. Joshi Indian National Congress 62215 3 Ramesh Chandra Communist Party of India 2632 4 Lalit Tiwari Bahujan Samaj Party 609 5 Devendra Kumar Independent 425 6 Ram Chandra Independent 1251 7 Laxmi Lal Mali (Saini) Independent 2659 Total Number of Rejected Votes 158 Total Number of Tendered Votes 10 S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 6 The petitioner has averred that the election of the respondent from Nathdwara Legislative Assembly Constituency No. 176 is liable to be declared void for the reasons: (a) that the wife of the respondent, "Smt. Kalpana Kunwar", who is also known by the name "Smt. Kalpana Singh", is registered at two places in the Electoral Rolls of this constituency; and she did cast the votes at two places namely, at Polling Station No. 39 and Polling Station No. 40; and (b) that the tendered votes by the genuine voters were not counted.
The allegation regarding casting of two votes by the wife of the respondent has been the bone of contention in this matter and the substantial part of trial has been directed towards this allegation alone. During the course of arguments, contentions have also been urged on behalf of the respondent about the effect of the averments taken in the petition and verification as made by the petitioner. Looking to the questions arising for determination, it appears appropriate to reproduce in extenso the pleading in this regard. The petitioner has averred in paragraph 12 of the petition as under:-
"12. That the wife of respondent no.1, Smt.Kalpana Kunwar is also known by the name Smt.Kalpana Singh. Smt.Kalpana Kunwar and Smt.Kalpana Singh is one and the same person. The name of the wife of respondent no.1 namely, Smt.Kalpana Kunwar is registered at two places in the Electoral Roll of Nathdwara Legislative Assembly Constituency No.176. In Part No.39 of Electoral Roll of Nathdwara Legislative Assembly Constituency No.176, the name of Smt.Kalpana Kunwar is registered at serial number 484 as Smt.Kalpana Singh. In Part No.40 of Electoral Roll of Nathdwara Legislative Assembly Constituency No.176, the name of Smt.Kalpana Kunwar is registered at serial number 727 as Smt.Kalpana Kunwar. In the aforesaid election, Smt.Kalpana Kunwar cast her vote S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 7 at polling station no.39 (Jeeva Kheda, Tehsil Nathdwara) in her name entered in Part 39 of the Electoral Roll at serial number 484. In the aforesaid election, Smt. Kalpana Kunwar also cast a vote at polling station no.40 (Kotharia, Tehsil Nathdwara) in her name which appeared in the Electoral Roll at serial number 727 in Part 40. Two votes having been cast by Smt.Kalpana Kunwar, both the votes cast by her are liable to be rejected being void. The petitioner further submits that Smt.Kalpana Kunwar, being wife of the respondent no.1, has cast both these votes in favour of the respondent no.1."
The petitioner has taken the ground in regard to the aforesaid facts in ground (A) of the petition as under:-
"(A) That the result of election to Nathdwara Legislative Assembly Constituency No.176 in so far as it concerns the respondent no.1 has been materially affected for the reason that the name of Smt. Kalpana Kunwar (wife of the respondent no.1) has been recorded at two places in the Electoral Roll of Nathdwara Legislative Assembly Constituency No.176.
Smt. Kalpana Kunwar cast votes twice i.e. at both the places namely, at polling station no.39 at serial number 484 of Electoral Roll and at polling station no. 40 at serial number 727 of Electoral Roll. In view of the provisions contained in Section 62(4) of the Act of 1951, both the votes cast by Smt. Kalpana Kunwar are void and are liable to be rejected. Smt. Kalpana Kunwar having voted for respondent no.1 being her husband, the two votes cast by her are liable to be excluded from the total number of votes polled in favour of the respondent no.1. On exclusion of the aforesaid two votes cast by Smt. Kalpana Kunwar, the petitioner would be found to have secured larger number of votes than the votes secured by the respondent no.1. There being violation of Section 62(4) of the Act of 1951, the result of the election from Nathdwara Legislative Assembly Constituency No.176 in so far as it concerns the respondent no.1 has been materially affected by non-compliance of the provisions of the Act of 1951 and the election of the respondent no.1 is liable to be declared void."
As noticed hereinbefore, the petitioner initially made the claim that the result of the election from the said Nathdwara Constituency was further materially affected on account of S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 8 improper reception of such votes as were cast by practicing impersonation by six persons who were not the genuine voters; and that those six votes were required to be rejected and in their place, the votes cast by the genuine voters through tendered ballot papers were required to be counted. However, during the course of trial and arguments, the submissions in regard to the tendered ballot papers have been confined to two such votes only and, therefore, appropriate it is to refer to the pleadings in regard to such two votes only.
In the first place, the petitioner has averred that at Polling Station No. 27 (Gudla, Tehsil Nathdwara, District Rajsamand), the name of Smt. Kamla wife of Shri Champa Lal appeared at serial number 311 in the Electoral Roll but when this voter reached the Polling Station for casting her vote, it was found that somebody else had already cast the vote on her serial number by Electronic Voting Machine by practicing impersonation. The petitioner has averred that the Presiding Officer at the concerned Polling Station put the questions to the said Smt. Kamla wife of Shri Champa Lal regarding her identity and, on her giving satisfactory reply, asked her to put the thumb impression against the entry relating to her name in Form No. 17-B; and upon her putting such thumb impression, supplied her a tendered ballot paper and she did cast her vote on such tendered ballot paper.
The second assertion about impersonation and tendered vote has been made in regard to the voter named Kana son of S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 9 Roda, whose name appeared at serial number 1122 in Part No. 61 of the Electoral Roll. It is averred that when the said voter reached Polling Station No. 61 (Sema, Tehsil Nathdwara, District Rajsamand), it was found that somebody else had already cast the vote by EVM on his serial number by practicing impersonation. In regard to this voter also, the petitioner has averred that the Presiding Officer put him the questions regarding identity and on being satisfied, took his signatures on Form No. 17-B and then, supplied him a tendered ballot paper; and Shri Kana son of Shri Roda did cast his vote on the tendered ballot paper.
As noticed, the petitioner had taken the averments concerning four other tendered ballot papers also which are not being narrated for the case in that regard having been given up. However, for the purpose of reference and to complete the narration of pleadings, it may be noticed that at the initial stage, the petitioner averred in the petition that it was a case of improper reception of eight (08) votes, six (06) being those votes where genuineness of the voter was in question and two (02) being the votes cast by the wife of the respondent; and hence, according to the petitioner, the result of the election from Nathdwara Legislative Assembly Constituency No. 176 had been materially affected.
The petitioner has averred that an application was moved on 15.12.2008 by Shri Subhash Choudhary, his election agent, for supplying certified copies of the marked copies of the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 10 Electoral Rolls of the concerned Polling Stations, the certified copies of the Forms of Declaration given by the voters, who had cast tendered votes and the certified copies of Forms Nos. 17-A and 17-B. This application was, however, rejected by the District Election Officer.
While asserting that the election of the respondent was liable to be declared void under the provisions contained in Sections 100(1)(d)(iii) and Section 100(1)(d)(iv) of the Act of 1951, the petitioner filed this election petition on 16.01.2009 with the following prayers:-
"(i) this election petition may kindly be allowed;
(ii) two votes cast by Smt.Kalpana Kunwar at Polling Stations No.39 and 40 at S.No.484 and 727 respectively of the electoral roll of Nathdwara Legislative Assembly Constituency No.176 may be ordered to be decoded and excluded from the valid votes;
(iii) an order for recount of votes be made and six votes cast at polling stations no.27, 61, 73, 117, 180 and 199 initially through Electronic Voting Machines in the name of voters at serial numbers 311, 1122, 146, 714, 866 and 502 respectively of the Electoral Roll of Nathdwara Legislative Assembly Constituency No.176 be excluded by way of decoding from the total votes and the tendered ballot papers cast by the genuine voters against these serial numbers be opened and be counted;
(iv) the election of the respondent no.1 Shri Kalyan Singh Chouhan from Nathdwara Legislative Assembly Constituency No.176 be declared void.
(v) Costs of the election petition may kindly be awarded to the petitioner."
The verification as made by the petitioner at the foot of the petition and in the supporting affidavit has also formed a part of the submissions in this matter as regard the petitioner's S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 11 knowledge of the relevant facts and, therefore, the contents of paragraph-5 of the affidavit, which are in tune with the verification of the petition, could be noticed as under:-
"5. That the averments contained in paras no. 1,2,3,4,5,6,7,11,23,24 and prayer clauses (i) to (v) of the annexed election petition are true and correct to my own knowledge; the averments contained in paras no. 12,13,14,15,16,17 and 18 of the annexed election petition are true and correct based on the information received from my polling agents and believed to be true; the averments contained in paras no. 8, 9, 10 and 21 of the annexed election petition are true and correct based on the information received from my election agent and believed to be true and the averments contained paras no. 19,20, 22 and its sub- paras (A) and (B) of the annexed election petition are true and correct based on the legal advice received & believed to be true."
The reply The respondent in his reply has not denied the basic facts about holding of general elections, issuance of notification, filing of nominations by himself and the petitioner, holding of the polls on 04.12.2008, counting of votes on 08.12.2008, prayer for re-count on behalf of the petitioner, ultimate declaration of result whereby he was declared elected for having secured one (01) vote more than the petitioner, the number of votes polled by each candidate, the number of rejected votes and the number of tendered votes. The respondent has, however, maintained that he was declared elected for having secured largest number of valid votes; and that no request was made on behalf of the petitioner for counting of the tendered votes. According to the respondent, S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 12 the election agent of the petitioner expressed his satisfaction with the re-counting, as is evident from the report of the Returning Officer.
The respondent has denied that the petitioner was entitled to call in question his election on any ground whatsoever; and has maintained that each and every ground mentioned in the election petition was emphatically denied by him being untenable and incorrect. The respondent has further averred that the election agent of the petitioner did not make any grievance about the votes cast at the six polling stations mentioned in paragraph Nos.13 to 18 of the election petition and did not seek their rejection on the ground that they were cast by the persons other than the genuine voters. It is further averred that no such grievance was made that the vote cast by the wife of the respondent should not be accepted as valid for her having cast the votes at two polling stations i.e., at Station No.39 in her name entered at serial No.484; and at Station No.40 in her name entered at serial No.727.
It is submitted that since the application for re-counting filed on behalf of the petitioner did not contain any request for exclusion of the questioned votes, the allegations in paragraph Nos.12 to 19 of the petition deserve to be ignored and rejected. The respondent has further averred in regard to impersonation as under:-
"That Rule 36 of the Rules of 1961, inter alia, provides for challenging the identity by the polling agents of the candidates by depositing a sum of two rupees in cash with the Presiding Officer for each S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 13 such challenge. None of the polling agents of the contesting candidates including that of the petitioner, challenged the identity of any of the persons claiming to be electors mentioned in the relevant entries of the electoral roll at the polling stations mentioned in Para Nos. 13 to 18 of the Election Petition and this clearly shows that there was no voting by impersonation and the allegations of the petitioner regarding the voting by impersonation are an after-thought and have been pressed into service only for the purpose of filing the Election Petition under reply."
The respondent has put specific denial on the allegations that his wife was known by two names "Smt. Kalpana Kunwar"
and "Smt. Kalpana Singh"; or that his wife was registered at two places in the Electoral Roll of Nathdwara Legislative Assembly Constituency No.176; or that she cast two votes i.e., at Polling Station No.39 in the name entered at serial No.484 and so also at Polling Station No.40 with her name entered at serial No.727.
The respondent has averred that his wife did not cast any vote at Polling Station No.39 and that she did cast her vote, but only at Polling Station No.40. In this regard, it is averred that the respondent's wife is known only by the name Smt. Kalpana Kunwar and she is registered only at serial No.727 in Part 40 where her photograph also appears. It is pointed out that there is no photograph of the voter registered at serial No.484 in Part 39. While maintaining that his wife has never been described as Smt.Kalpana Singh, the respondent has averred that the petitioner has tried to mislead this Court and to create a ground for himself by filing a petition on the basis of similarity of the names of the husband of two different S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 14 ladies, one Smt. Kalpana Singh, aged 30 years and the other one being his wife, Smt.Kalpana Kunwar, aged 36 years. It is also averred that the respondent's wife is holding the degrees of Master of Commerce and Master of Arts and it was not expected that she would cast the votes at two places in the same election for the similarity of names of the ladies and thereby take the risk of getting her husband's election declared void. It is also maintained that the wife of the respondent is having Electoral Photo Identity Card (EPIC) pertaining to Polling Station No.40, Entry No.727. The respondent has further referred to the Handbook for Presiding Officers containing the procedure for recording of votes to assert that it was not possible for a person to cast his/her vote at two different places. As paragraph 12 of the petition has been reproduced hereinabove, appropriate it is to reproduce paragraph 12 of the reply also in extenso as under:-
"12- That Para No. 12 of the Election Petition is not admitted, as alleged. It is denied, "That the wife of respondent no. 1, Smt. Kalpana Kunwar, is also known by the name Smt. Kalpana Singh". It is also denied that Smt. Kalpana Kunwar and Smt. Kalpana Singh is one and the same person". It is further denied that, "The name of the wife of respondent no. 1 namely, Smt. Kalpana Kunwar is registered at two places in the Electoral Roll of Nathdwara Legislative Assembly Constituency No. 176". The submission of the petitioner to the effect that, "In Part 39 of Electoral Roll of Nathdwara Legislative Assembly Constituency No. 176, the name of Smt. Kalpana Kunwar is registered at serial number 484 as Smt. Kalpana Singh.", is not correct and is denied. The name of the wife of answering respondent is Smt. Kalpana Kunwar and not "Kalpana Singh" and is registered at Sl. No. 727 only in the Electoral Roll Part No. 40 of the above Constituency and not in Part 39 of the Electoral Roll. It is denied that, "Smt. Kalpana Kunwar cast her vote at S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 15 polling station no. 39 (Jeeva Kheda, Tehsil Nathdwara) in her name entered in Part 39 of the Electoral Roll at serial number 484." It is submited that the wife of the answering respondent, Smt. Kalpana Kunwar only cast her vote at Polling Station No. 40 (Kotharia, Tehsil Nathdwara) in her name which appears in the Electoral Roll at serial No. 727 in Part 40. The allegation of the petitioner to the effect that the wife of the answering respondent Smt. Kalpana Kunwar cast her vote also at Polling Station number 39 and that she cast two votes, is denied, therefore, the submission of the petitioner to the effect that, "Two votes having been cast by Smt. Kalpana Kunwar, both the votes cast by her are liable to be rejected being void.", is incorrect and untenable and is once more denied. Likewise, the submission of the petitioner to the effect that, "Smt. Kalpana Kunwar, being wife of the respondent no. 1, has cast both these votes in favour of the respondent no. 1.", is absolutely incorrect and unfounded and is again denied. The wife of the answering respondent, Smt. Kalpana Kunwar, did not cast vote at Polling Station No. 39 and she cast her vote only at Polling Station No. 40. As already submitted above, the name of the wife of the answering respondent is Kalpana Kunwar and not Kalpana Singh and that is why, the photograph of Smt. Kalpana Kunwar appears only in Part 40 at Serial No. 727 and there is no photograph of the registered voter in Part 39 at Serial No. 484. The answering respondent reiterates that his wife's name is Kalpana Kunwar and not Kalpana Singh. She has not described herself as Kalpana Singh at any time or place and she has always been known and she has always been described as Kalpana Kunwar and not as Kalpana Singh. The answering respondent produces herewith copy of PAN card, Electoral Photo Identity Card (EPIC), certificate of registration of vehicle and copy of Insurance polices in the name of Smt.Kalpana Kunwar jointly marked as Annex.R/4.The petitioner has tried to mis-lead this Hon'ble Court and create a ground for himself for filing the Election Petition on the basis of similarity of the name of the husband of two different ladies one having the name of Kalpana Singh aged 30 years and the other - the wife of the respondent Smt. Kalpana Kunwar, aged 36 years. Such a false ground cannot be made subject matter of any inquiry for trial and deserves to be rejected out right at the thresh-hold.
It is relevant to mention here that the wife of the answering respondent Smt. Kalpana Kunwar is Master of Commerce and also Master of Arts (Sociology) and it cannot be expected of her that she would cast vote at two places in the same election merely because the entry Kalpana Singh, on account of the similarity of the name of husband with the name of the husband of Smt. Kalpana Kunwar and take the risk of getting her husband's election declared 'void'. It S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 16 is further relevant to point-out here that the wife of the answering respondent, Smt. Kalpana Kunwar, is having Electoral Photo Identity Card [EPIC] pertaining to Polling Station 40 Entry No. 727. It is only after verifying her identity on the basis of the EPIC and the photo appearing in the voters list, she was allowed to cast her vote at Polling Station No. 40 in Sl. No. 727.
A perusal of paragraph 1 to 1.3 of Chapter XIX [Application For Indelible Ink And Obtaining Signature/Thumb Impression Of Elector Before Permitting Him To Record His Vote of the Handbook for Presiding Officers] and paragraph No. 1.1 of Chapter XX [Recording of Votes and Voting Procedure], leaves no manner of doubt that it is not possible for a person to be able to cast his/her vote at two different places on the basis of the entries referred to and relied upon by the petitioner in the para under reply."
In continuity of the above, reply to ground (A) of the petition could also be taken note of as under:-
"(A) That Ground Para No. (A) of the Election Petition is denied. It is denied, "That the result of election to Nathdwara Legislative Assembly Constituency No.176 in so far as it concerns the respondent no. 1 has been materially affected for the reason that the name of Smt. Kalpana Kunwar (wife of the respondent no. 1) has been recorded at two places in the Electoral Roll of Nathdwara Legislative Assembly Constituency No.176. Smt. Kalpana Kunwar cast votes twice i.e. at both the places namely, at polling station no. 39 at serial number 484 of Electoral Roll and at polling station no. 40 at serial number 727 of Electoral Roll. In view of the provisions contained in Section 62 (4) of the Act of 1951, both the votes cast by Smt. Kalpana Kunwar are void and are liable to be rejected." The submission of the petitioner to the effect that, "Smt. Kalpana Kunwar having voted for respondent no. 1 being her husband, the two votes cast by her are liable to be excluded from the total number of votes polled in favour of the respondent no. 1" and likewise, the submission of the petitioner to the effect that, "On exclusion of the aforesaid two votes cast by Smt. Kalpana Kunwar, the petitioner would be found to have secured larger number of votes than the votes secured by the respondent no. 1.", are incorrect and are denied. It is denied that "There being violation of Section 62 (4) of the Act of 1951" and, therefore, the submission of the petitioner to the effect that, "the result of the election from Nathdwara Legislative Assembly Constituency No.176 in so far as it concerns the respondent no. 1 S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 17 has been materially affected by non-compliance of the provisions of the Act of 1951 and the election of the respondent no. 1 is liable to be declared void", is incorrect and is once more denied."
In regard to the averments about impersonation and improper reception of the votes and tendered votes, the respondent has referred to an application under Order VI Rule 16 CPC as filed by him for striking out the unnecessary and frivolous pleadings. It may be pointed out that the said application under Order VI Rule 16 CPC was considered and rejected by the Hon'ble Predecessor Judge of this Court on 19.11.2009. Be that as it may, the respondent has denied that the result of the election in question had been materially affected on account of improper reception of those votes which were initially cast by Electronic Voting Machines by impersonation; or by improper reception of votes cast by his wife. In the reply, the answering respondent has also referred to the last line of paragraph 12 of the election petition wherein, it has been averred that the wife of the respondent cast the alleged vote in favour of the respondent; and it is contended that such allegations have not been made in relation to the alleged tendered votes.
In the additional pleas, the respondent has reiterated the submissions that at the time of voting, counting or re-counting, no objection was raised regarding voting by impersonation and, therefore, it is maintained that the petitioner is not entitled to press into service the ground in that regard in the election S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 18 petition. In regard to four of the referred cases of the voters, the respondent has pointed out the fact that clear photographs against the names of the persons were available and it is submitted that voting by impersonation was not at all possible. It is also alleged in the reply that the petitioner has made such averments after looking into the marked voters list and Form No.17-A and 17-B whose inspection was prohibited for maintaining secrecy of ballot. The answering respondent has levelled the allegation that the Treasury Office of the Collectorate, Rajsamand was opened in the night on 31.12.2008 with a view to enable the petitioner, an influential person, to have a look into the voters list. These allegations read as under:-
"Without prejudice, the answering respondent humbly submits, the petitioner is not entitled to press into service the averments of Para Nos.13 to 18 and the contents of Para (B) of the ground, inter alia, for the reason that he has made these allegations after looking into marked voters list and forms No.17-A and 17-B, whose even inspection is prohibited for maintaining and preserving secrecy of votes with the connivance of the Officers of the Collectorate and Treasury. In this connection, the answering respondent humbly submits that the Treasury Office of Collectorate Rajsamand was opened in the night of 31.12.2008 with a view to enable the petitioner, who is State President of Congress Party and also present Cabinet Minister in the Government of India and who is a very influential Congress leader, to have a look into the marked voters list and the Form No.17-A and 17-B to enable him to file the Election Petition under reply on the averments contained in Paras No.12 to
19. On account of the eminent position which the petitioner has been holding in the ruling party for the last so many years, the answering respondent has every reason to believe that the petitioner who had not made any grievance about the allegations contained in Paras No.12 to 19 of the Election Petition at any time either during the voting or during counting and re- counting, which was done on his request, could not have been able to file the Election Petition without the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 19 averments contained in Paras 12 to 19 and the grounds. In this connection, the petitioner is submitting herewith the complaints filed by him on 20.1.2009, 5.2.2009, the reply of the Collector, Rajsamand, dated 16.4.2009 and the detailed written submissions submitted by the answering respondent in response to the said letter of the Collector, Rajsamand dated 12.5.2009 and the same are filed herewith and marked as Annex.R/6. It is submitted that no action was taken by the collector or the Election Commission till date."
The respondent would also maintain that all steps had been taken by the Government for training of the polling officers regarding use of photos and identity cards so as to eliminate voting by impersonation and hence, the allegations regarding voting by impersonation in paragraph Nos.13 and 18 and regarding double voting deserve to be ignored. The respondent has reiterated the denial as regards the allegation about double voting by his wife in the additional pleas as follows:-
"{D}. That the allegation about the double voting by the wife of the answering respondent Smt.Kalpana Kunwar having been made by the petitioner merely on the basis of the alleged similarity in the name entered in Sl.No.484 Part 39 (as Smt.Kalpana Singh) and the name entered in Sl.No.427 Part No.40 (as Smt.Kalpana Kunwar) deserves to be ignored for the simple reason that the name entered in Sl.No.484 Part 39 is not Kalpana Kunwar, but is Kalpana Singh, about which the answering respondent has emphatically stated that his wife is not Kalpana Singh and her name is Kalpana Kunwar, and does not contain any photograph and that being so, the question of the wife of the answering respondent, Kalpana Kunwar, voting twice in the said election, is totally ruled-out and cannot even arise and hence, the same deserves to be ignored and rejected on this ground alone."
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 20 With and on the submissions aforesaid, the respondent has prayed that the election petition be dismissed. ISSUES In this election petition, on the material propositions occurring in the pleadings of the parties, the following issues were framed on 05.05.2010:-
"(i) Whether Smt.Kalpana Kunwar W/o the respondent, is also known as Kalpana Singh and whether she cast her vote at two Polling Stations viz. Polling Station No.39 and Polling Station No.40 of the Nathdwara Legislative Assembly Constituency No.176 and if so, what is the effect on the election of the respondent?
(ii) Whether the six votes mentioned in Para Nos.13 to 18 of the election petition were initially improperly received and should be removed from the valid votes and in their place tendered votes should be taken into account?
(iii) Relief."
SUMMARY OF THE PROCEEDINGS/INTERLOCUTORY MATTERS At this juncture and before embarking upon the evidence, appropriate it shall be to take note of the relevant aspects from the record of proceedings, inter alia, for comprehension of the matters already concluded as also the matters that might require determination herein.
This election petition was considered on 25.02.2009 when it was found to be within time and having been filed with the requisite compliance of the Rules. It was also noticed that the petitioner was not seeking declaration for himself to be the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 21 elected candidate; and the Election Commission of India was impleaded as a party (respondent No.2) in view of the relief claimed. The summonses were, accordingly, ordered to be issued to the respondents. Looking to the facts of the case, with reference to Rule 94(AA) read with Rule 93(1A) of the Conduct of Election Rules, 1961 ('the Rules of 1961'), it was ordered that the District Election Officer, Rajsamand would keep and preserve all the election material including the voting machines and their controlling units of Nathdwara Legislative Assembly Constituency No. 176 and shall not open the same nor shall allow inspection to anybody without the leave of the Court.
On 25.03.2009, the respondent No. 2 was found served; and a preliminary reply was also filed on its behalf. The respondent No. 1 was not served and, while declining the prayer for substituted service, fresh summons was ordered to be issued. After service, on 29.04.2009, the respondent No. 1 submitted two applications: one under Section 86 of the Act of 1951; and another under Section 86(1) thereof.
On 18.05.2009, arguments were heard on the preliminary objection as raised on joinder of the Election Commission as also the other objection taken by the respondent No. 1 about non-joinder of necessary parties. The said objections/applications were decided by separate orders dated 10.07.2009. By the first order, the application as moved by the present respondent under Section 86(1) ibid. was S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 22 considered wherein it was contended that the petitioner has not only filed the petition for declaring the election of the respondent as void but, on the averment of having secured larger number of votes, the petitioner was also claiming a declaration in his favour of being duly elected, though such a relief was not mentioned in the prayer clause. The respondent contended that in the given situation, all the candidates who contested the election were necessary parties to the petition. Such contentions were rejected with reference to Sections 82 and 84 of the Act of 1951 with the finding that the election petition was competent even without claiming the consequential relief of further declaration in his favour which the petitioner could have but had not claimed. After observing that the procedure of election petition was governed by special law, the Court found no merit in the application under Section 86(1) ibid. and rejected the same. By the other order of the even date, i.e., 10.07.2009, the objection as taken in regard to the impleadment of respondent No. 2, the Election Commission of India, was upheld and the respondent No. 2 was ordered to be deleted from the array of parties. The matter was, then, adjourned for filing of the reply by the respondent.
Thereafter, on 11.08.2009, the respondent, instead of filing reply, moved an application (IA No. 12086/2009) under Order VI Rule 16 of the Code of Civil Procedure ('CPC') with the prayer that the pleadings in paragraphs Nos. 13 to 19 of the petition be struck out. The petitioner filed a reply to this S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 23 application; and the respondent filed a rejoinder thereto. However, while this application remained pending, the respondent filed his reply to the main petition on 13.10.2009.
Then, on 23.10.2009, the petitioner submitted an application for summoning of the documents. The respondent filed a reply opposing this application and seeking permission to inspect the same.
Thereafter, by an order dated 19.11.2009, the petitioner's application for summoning of the record was allowed in relation to the documents mentioned at serial numbers 4 to 35 and 45 with the observations that summoning of those documents would help the Court in framing proper issues and placing the burden correctly.
By another order of the even date i.e., 19.11.2009, the application as moved by the respondent for striking out the pleadings was rejected with the observations that the pleadings were neither frivolous nor unnecessary. It was observed that the petitioner was not supposed to plead in regard to the question of impersonation as to who cast the earlier votes because there was available prima facie satisfaction of the Election Officer about the genuineness of the voters, to whom the tendered ballot papers were issued.
The Court referred to the decision of the Hon'ble Supreme Court in the case of Dr. Wilfred D'Souza Vs. Francis Menino Jesus Ferrao : AIR 1977 SC 286 to observe that the tendered votes are required to be counted on proving of the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 24 necessary facts; and that counting of tendered votes is not that of re-counting but is counting of genuine votes, which is a right of a candidate.
It appears from the record of proceedings that two petitions for special leave to appeal bearing numbers 33725/2009 and 34688/2009 were filed before the Hon'ble Supreme Court by the respondent against the aforesaid orders passed in this petition and both were decided by a common order dated 16.12.2009. In SLP (C) No. 33725/2009, the Hon'ble Supreme court considered the submissions of the present respondent, the returned candidate, that the documents ordered to be summoned were inadmissible in law and the election petitioner had not raised any of the grounds warranting summoning of these documents. The Hon'ble Supreme Court disposed of this petition with the following observations:-
"We make it clear that the petitioner would be at liberty to raise these grounds/relevancy or admissibility of these documents when these documents are sought to be used by the respondent herein in the proceedings. It was also pointed out that these documents, some are confidential in nature and they may expose the secrecy of the election. The Returning Officer is directed to produce the documents in a sealed cover, only after hearing the parties, and if necessary, open the sealed cover having due regard to the sanctity of the secrecy of ballot.
The petitioner herein would be at liberty to raise all objections regarding admissibility and relevancy of the documents at the time of the hearing.
The special leave petition is disposed of accordingly."
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 25 The other petition bearing number 34688/2009 was simply dismissed by the Hon'ble Supreme Court.
On 07.12.2009, the Sub-Divisional Magistrate, Nathdwara produced the documents as directed by this Court except that mentioned at Sl. No. 34, the video CD containing the videography of polling process relating to Polling Station No. 39 for which, it has been given out that videography at Polling Station No.39 was not carried out.
Then, on 04.01.2010, the respondent moved another application under Section 86 of the Act of 1951 with the submissions that the petitioner had not served the copy of list of documents filed by him with the election petition and hence, the petition was liable to be dismissed. This application was considered and rejected by this Court with costs of Rs. 5000/- on 10.02.2010.
The aforesaid order dated 10.02.2010 was also sought to be challenged before the Hon'ble Supreme Court in SLP (C) No. 8212/2010 that was dismissed by the Hon'ble Supreme Court on 01.04.2010.
In the meantime, the matter was taken up for admission/denial of the documents on 16.02.2010 when an objection was raised by the respondent against opening of the packets containing marked copy of the Electoral Roll, Register of Entries in Form No. 17-A and the list of tendered votes in Form No. 17-B. These objections were rejected by the order S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 26 dated 25.03.2010 with the observations, inter alia, that the summoned documents were required to be opened for the purpose of obtaining admission/denial after scrutiny of the documents and such a process would not violate the secrecy. This order was also questioned before the Hon'ble Supreme Court in SLP (C) No. 10633/2010 that was disposed of by the Hon'ble Supreme Court on 23.04.2010 with a slight modification in the order passed by this Court and making it clear that the tendered votes were not be opened so as to maintain sanctity/security of the ballot papers at the given stage. The Hon'ble Supreme Court ordained-
"Going by the impugned judgment, it is not clear whether tendered votes themselves are opened or the list alone of the tendered votes would be opened. Any way, tendered votes shall not be opened so that it may maintain sanctity/security of the ballot papers at this stage.
Subject to this modification, the special leave petition is disposed of."
Then, on 29.04.2010, the sealed packets containing the documents and material were opened and admission/denial was obtained from the respondent while maintaining the secrecy of the tendered ballot papers. The video CD sent in the sealed cover of Polling Station No. 40 was not opened as agreed to by both the parties. However, it was distinctly noticed from the communication received from the Election Officer that videography/photography was not carried out for Polling Station No. 39.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 27 An event took place before the Court on 29.04.2010 in the process of admission/denial that has formed the part of contentions of the parties. The respondent initially made an entry of admission on Form No. 17-A of Polling Station No. 40 for Entry No. 727 but, after consulting his Advocate, made the endorsement on the document as being "not admitted". This particular event was taken note of; and being relevant for the questions posed, the observations of the Court are reproduced as under:-
"For form no.17A for polling booth no.40 for voter no.727, the respondent initially made entry by admitting the document, however, after consulting his advocate, made endorsement that the document is not admitted. However, all other documents were also admitted or denied by the respondent with the consultation of the learned advocate of the respondent."
Then, on 05.05.2010, admission/denial of the petitioner was obtained; and the office was directed on the prayer of the parties to supply the certified copies of the relevant documents. Thereafter, the learned counsel for the parties were heard on the question of framing of issues and the issues were framed, as have already been reproduced hereinbefore. The parties were directed to file the list of documents; and the petitioner was also directed to submit the requisite process if the witnesses were desired to be summoned; and the matter was fixed for evidence on 06.07.2010.
However, in the meantime, an application was moved on behalf of the respondent for summoning of the record in S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 28 relation to some of the polling stations and the tendered votes which had otherwise not been referred in the petition or the reply. This application was dismissed by the order dated 24.05.2010 for the respondent having failed to establish any case for summoning of the referred documents and their relevancy for the purpose of deciding the issues involved in the matter.
Thereafter, the petitioner's evidence commenced; the petitioner himself was examined on 6th, 7th and 8th July 2010 and other witnesses were examined on different dates. The other part of the order-sheets relating to summoning and examination of the witnesses need not be dilated upon but some other interlocutory matters do deserve mention.
During the course of his evidence, the petitioner moved two applications (IA Nos.12698/2010 and 13518/2010) respectively on 23.09.2010 and 01.10.2010 essentially with the submissions that Form No. 17-A of Polling Stations No. 39 as also of Polling Station No. 40 contained the signatures of Smt. Kalpana Singh alias Smt. Kalpana Kunwar in English and that the respondent had annexed with his reply a copy of the certificate of registration pertaining to a tractor bearing number RJ 30 RA 0063 in the name of his wife Kalpana Singh alias Smt. Kalpana Kunwar. The petitioner submitted that he had reliably learnt that in the loan documents of Rajsamand Sahakari Bhoomi Vikas Bank as well as in the office of District Transport Officer, the signatures of the wife of the respondent S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 29 were available in English as Kalpana Singh. The petitioner submitted that he had approached an expert Shri Ajay Sharma for obtaining report on the signatures of the said Kalpana Singh @ Smt. Kalpana Kunwar and in order to enable the expert to submit his report on such signatures, the original of Form No. 17-A was required to be made available to the expert. The petitioner also sought summoning of the original record of the loan documents executed by Smt. Kalpana Kunwar @ Smt. Kalpana Singh in respect of the said tractor bearing registration number RJ 30 RA 0063 and the original record pertaining to the registration of the tractor from the District Transport Officer, Rajsamand for being made available to the expert. The respondent filed detailed replies contending against these applications. These applications were considered in the order dated 19.11.2010 wherein, the Court found no necessity of summoning the documents or permitting the petitioner to produce an expert's report at the given stage but kept the matter open with the following observations:-
"So far as the contention of the learned counsel for the petitioner is concerned, in the facts of the case and in view of the judgment of the Supreme Court in the case of O.Bharathan (supra) the court itself will not be in position to compare the signatures in dispute and instead of comparing all the signatures by the court, the opinion of the expert can be obtained. There is no dispute that if needed, the original documents can be sent to the expert by taking special care if there is apprehension of tampering with the documents during the course of examination process or there is apprehension of misplacing of the original documents and if expert can examine the documents in the court office, the appropriate arrangements can be made for providing the documents to the expert in the court, but looking to the totality of the facts of the case and particularly when the signatures of respondent's wife are yet to S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 30 be put before the respondent's wife who is named as witness of the respondent, then certainly at this stage, I do not find any just reason for obtaining the expert opinion for the signatures of the respondent's wife on disputed documents. If she admits the signatures, there may not be any necessity of sending the documents for obtaining the opinion of the expert. If she disputes the documents and denies the signatures, then appropriate order can be passed by the court for obtaining the opinion of the expert if required.
The learned counsel for the petitioner submitted that the petitioner wants to produce expert's opinion and evidence when his evidence is going on without waiting for the evidence of the respondent and his witness, that is evidence of his wife. It is true that the petitioner can produce the evidence which the petitioner wants to produce at the time when his evidence is going on but this procedure can be molded so as to fit in the circumstance which may avoid the unnecessary evidence.
Therefore, at this stage, neither the documents are required to be summoned nor are required to be sent for obtaining expert's opinion. However, the petitioner, will be at liberty to seek both the reliefs at appropriate stage after or during the evidence of the respondent's wife."
It may be pointed out that Smt. Kamla wife of Shri Champa Lal, the voter related with tendered vote at Polling Station No.27, had been cited as one of the witnesses by the petitioner but she did not turn up and the petitioner proceeded to close his evidence on 23.12.2010.
Thereafter, the respondent was examined on 01.02.2011, 02.02.2011 and 17.02.2011. In cross-examination, several documents were put to the respondent, which were duly marked exhibit.
It may be noticed that in the meantime, the petition for special leave to appeal as filed by the respondent against the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 31 aforesaid order dated 24.05.2010 declining summoning of documents was considered and, with granting of leave, the appeal bearing number 870/2011, was considered and dismissed by the Hon'ble Supreme Court with a detailed order dated 24.01.2011. The prayer on behalf of the respondent for summoning of the record pertaining to other four tendered votes was found rightly declined by the Hon'ble Supreme Court; and the judgment in Dr.Wilfred D'Souza's case (supra) was distinguished on the points in issue with the observation that in that case, a recrimination petition had been filed. The Hon'ble Supreme Court, inter alia, observed as under:-
".......In the instant case, an application had been filed to summon the other 4 tendered votes, also making a submission that those documents were required by the parties to resolve the controversy without giving any reason or justification for the same. Admittedly, there is no reference to these 4 tendered votes either in the election petition or in the written statement. The said 4 tendered votes neither had been relied upon in the reply by the appellant nor had been entered in the list of documents. Thus, the judgment in this case is quite distinguishable from the case at hand."
It may also be noticed that on 30.03.2011, when the matter was going on for the respondent's evidence, some of the witnesses had been produced, and some of the witnesses were dropped, a prayer came up for summoning of the witnesses relating to other tendered votes to which objection was raised on behalf of the petitioner. Such an objection was sustained by the order dated 30.03.2011 with this Court referring to its order dated 24.05.2010 as also the above S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 32 quoted observations from the order of the Hon'ble Supreme Court dated 24.01.2011. The witnesses relating to the other votes cast were not allowed to be produced.
On 30.03.2011 itself, when the witness DW-3 Shanti Lal Kalal was being examined, who was the Presiding Officer of Polling Station No.73 at Fauj Mohalla, several objections cropped up. Firstly, in his examination-in-chief, the witness was put a question with respect to Entry No. 173 relating to one Seema wife of Kailash in the marked copy of the Electoral Roll wherefor an objection was raised on behalf of the petitioner that such an entry was not a matter of pleading. This objection was sustained with reference to the very same reasons as contained in the aforesaid orders of this Court dated 24.05.2010 and of the Hon'ble Supreme Court dated 24.01.2011. Then, in the cross-examination, the same witness was put the questions in relation to another voter Mst. Bargat Bano wife of Gani and then, a question was put to the witness with respect to the tendered vote alleged to have been cast by the said Mst.Bargat Bano for which, an objection was raised on behalf of the respondent. This objection was rejected by a separate detailed order of the even date, i.e., 30.03.2011 with reference to the fact that pleadings in regard to the said voter Mst. Bargat Bano were contained in paragraph 15 of the petition. The contention of the respondent that the petitioner did not examine the said witness Mst. Bargat Bano was also considered and it was observed that merely for this reason, the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 33 petitioner was not precluded from putting relevant questions to the witness who was the Presiding Officer of Polling Station No. 73. Then, this witness was sought to be put the questions in the nature of cross-examination by the learned counsel for the respondent for which, an objection was raised by the petitioner. This objection was also considered and decided by a separate detailed order of the even date, i.e., 30.03.2011 and looking to the questions posed to the witness in the cross- examination and the law applicable, the prayer as made by the respondent was granted. The statements of this witness were completed, in this manner, on 30.03.2011.
During the course of trial further, the respondent moved another application (IA No. 6262/2011) seeking "correction in the name of witness No. 46 in the list of witnesses", who had been referred as: "46 - Surendra Singh S/o Gamer Singh R/o Village Dagwada, Dhani Rebariyan, Post Utharda, Tehsil Nathdwara BJP Polling Agent at Booth No. 40." It was submitted that the intention in relation to item No. 46 in the list of witnesses was to enlist the BJP Polling Agent of Booth No. 40 but due to inadvertence and oversight, the particulars came to be given of the BJP Polling Agent at Booth No. 39. The particulars of the person who was allegedly the Polling Agent of BJP at Booth No. 40 in the said elections were stated in the application as: "Shri Suresh Acharya son of Shri Sunder Lal Acharya, resident of Maliyon Ka Mohalla, Kothariyan, Village and Post Kothariyan, Tehsil Nathdwara". It was further S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 34 submitted that at the time of filing the list of witnesses, inadvertently, the name of Shri Surendra Singh son of Gamer Singh came to be mentioned and this mistake came to the notice of the respondent only when the said Shri Surendra Singh, upon contacting, pointed out that he was not the Polling Agent at Booth No. 40. It was prayed that the particulars at item No. 46 may be allowed to be corrected by replacing the name of Shri Surendra Singh with the name of said Shri Suresh Acharya; and the summons in relation to Surendra Singh may be cancelled. Another application (IA No. 6444/2011) was also moved with the prayer that the said Shri Suresh Acharya may be included in the list of witnesses and may be allowed to be summoned.
This Court, after accepting that the respondent intended to examine the Polling Agent of Polling Station No. 40 and after noticing that the case was still continuing in evidence, considered it just and proper and in the interest of justice to allow the amendment of the list of witnesses with substitution of the particulars as prayed. Thus, the application (IA No. 6262/2011) was allowed by the order dated 03.05.2011. By a separate order, the named witness was also allowed to be summoned as prayed.
Then, while the matter was on the fag end of the evidence, the respondent moved another application (IA No. 10636/2011) with the submissions that so far the two tendered votes were concerned, evidence had appeared on record in S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 35 relation to the voters at Polling Station No. 27 and 61 (Smt. Kamla wife of Shri Champa Lal and Shri Kana son of Shri Roda respectively); and no evidence has been adduced in relation to other voters. It was submitted that in the interest of justice and in terms of prayer (iii) of the election petition, the votes initially cast in relation to the said two voters may be decoded and the tendered votes cast by them may be counted. The respondent prayed as under:-
"It is most humbly and respectfully prayed that this application may kindly be allowed and necessary directions be issued to the Election Commission of India for decoding the vote cast at polling Booth No.27 at Sr. No.133 and votes cast at polling Booth No.61 at Sr.No.238 and 428 and after their exclusion from the total votes the tender votes cast by Smt. Kamla wife of Shri Champa Lal and Kana son of Shri Roda respectively may kindly be counted. "
This application being related to one of the issues, it was considered expedient to take up the same at the time of final decision for the reason that the issues were not to be taken up in piecemeal and that too, at the stage when the matter had progressed sufficiently in evidence. This application (IA No. 10636/2011) was, therefore, kept pending.
In evidence, lastly, the wife of the respondent Smt. Kalpana Kunwar was examined as DW-9 on 27.07.2011. It may be observed that at the time of conclusion of the statements of DW-9, the learned counsel for the petitioner moved an application (IA No.11828/2011) with the prayer for summoning of her Income Tax Returns with the submissions S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 36 that such returns would be necessary for the purpose of establishing her hand-writing. When no other question was sought to be put to the witness, in the totality of the circumstances, the testimony of the said witness (DW-9) was closed at the given stage with the rider that in accordance with requirement, at the future stage, the Court would consider, if necessary, re-summoning of this witness. Then, the petitioner moved another application (IA No.12274/2011) on 30.07.2011 for sending of the document for hand-writing expert's report. These applications were also kept pending by the order dated 24.08.2011, to be considered at the time of final hearing.
During the course of long-drawn arguments, the respondent moved yet another application (IA No.19505/2011) with reference to Sections 56 and 57 of the Indian Evidence Act and Section 151 CPC with the prayer for taking judicial notice of the three documents filed with the application namely:
(i) the mark-sheet of Secondary School Examination 1979, as said to have been issued in the name of his wife and said to be carrying her date of birth as 10.04.1962; (ii) a certified copy of the register said to be containing the particulars and dates of distribution of Photo Identity Cards of the voters of Polling Station No. 39 as issued by the Electoral Registration Officer, Nathdwara; and (iii) a certified copy of the list of voters pertaining to Polling Station No. 39 whose photography had not taken place. The petitioner filed a reply to this application and apart from maintaining that the documents could not be taken S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 37 into consideration at the given stage, alleged that the document relating to distribution of cards was a creation of manipulation;
and certain supporting documents were also filed by the petitioner in this regard. The respondent filed a rejoinder to this reply and, while denying the allegation regarding manipulation of record, filed further documents, said to be related with his wife's college education. The learned counsel for the parties have been heard on this application too during the course of arguments in this election petition.
SUMMARY OF THE EVIDENCE AND OTHER RELEVANT MATERIAL ON RECORD With pleadings, issues and the proceedings having been noticed, now, and before entering into the process of determination of the questions involved in the matter, appropriate it shall be to have a glimpse of the evidence adduced by the parties and other relevant material on record.
The petitioner has examined five witness in oral evidence namely, PW-1 C.P. Joshi, the petitioner himself, PW-2 Amar Singh Meena, the Polling Officer at Polling Station No. 40, PW- 3: Rai Singh, said to be the polling agent of the petitioner at Polling Station No. 39, PW-4 Soorveer Singh, said to be the polling agent of the petitioner at Polling Station No. 40, and PW-5 Kana, the person said to be the genuine voter at serial number 1122 of Polling Station No. 61. The relevant part of the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 38 testimony of these witnesses shall be examined at the appropriate places hereafter.
The petitioner has produced several documents in evidence, which shall also be referred at the relevant places. However, the particulars of the documents so produced are summarised hereunder while arranging the same in the possible and feasible order with reference to the facts of the case and the points arising for determination:
S.No. Exhibit Description
1 Ex.11: Nomination Form of the respondent
Kalyan Singh in the Assembly
Elections, 2008.
2 Ex.21. Final result of Nathdwara Assembly Elections 2008.
3 Ex.1: Page 31 of Marked copy of electoral roll of Polling Booth No.40 4 Ex.22 Entire marked copy of electoral roll of Polling Booth No.40 5 Ex.2: Relevant page of Form No.17A of (Part of Ex.14) Polling Booth No.40 6 Ex.14: Entire register containing Form No.17- A of Polling Booth No.40.
7 Ex.3: Relevant page of marked copy of (Part of Ex.14) electoral roll of Polling Booth No.39. 8 Ex.23. Entire marked copy of electoral roll of Polling Booth No.39 9 Ex.5: Relevant page of Form No.17A of Polling Booth No.39 (Entire register of Form No.17A of Polling Booth No.39 has been produced) 10 Ex.9: Certificate dated 14.12.09 issued by the Electoral Registration Officer, Nathdwara stating that present part No. 39 was earlier comprised in parts Nos. 85 & 86; and that present part No. 40 was earlier comprised in parts Nos. 82 & 83 S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 39 S.No. Exhibit Description 11 Ex.10: Voter List of part No.86.
12 Ex.12: Voter List of part No.83 13 Ex.15: Relevant page of the Voter List for the year 2009 of Polling Booth No.40.
14 Ex.16: Relevant page of the Voter List for the year 2009 of Polling Booth No.39 15 Ex.17: Relevant page of the Voter List for the year 2010 of Polling Booth No.39 16 Ex.18: Amendment in the voter list for the year 2010 for Polling Booth No.39.
17 Ex.20. Voter List of Polling Booth No.41. 18 Ex.4: Praganak Abhilekh IRE-014 19 Ex.13: Photo I.D. Card of Smt. Kalpna 20 Ex.19. Documents Annexure-A/1, Annexure-
A/2 filed along with IA No.13518/2010 21 Ex.25 Copy of marks sheet of B.A. Year 2000, Meera Girls College, Udaipur.
22 Ex.8 Statements of Kalyan Singh recorded in Sessions Case No.7/2000 23 Ex.6: Certified copy of Nomination Form of Zila Parishad, Year 2000 24 Ex.7: Certified copy of Nomination Form of Zila Parishad, Year 2005 25 Ex.24 Election result of Zila Parishad dated 8.2.2000 Besides the aforesaid documents, a C.D. Containing videography/photography of Polling Station No.40 has also been exhibited as Article-I. The respondent has examined in all nine witness namely DW-1 Kalyan Singh Chouhan, the respondent himself, DW-2 Prem Singh, the Presiding Officer at Polling Station No. 61, DW-3 Shanti Lal, the Polling Officer at Polling Station No. 73, DW-4 Smt. Kamla, said to be the genuine voter at Sl. No. 311 S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 40 at Polling Station No. 27, DW-5 Lalit Tiwari, said to be one of the candidates in the election in question as the candidate of Bahujan Samaj Party, DW-6 Suresh Chandra Acharya, said to be the polling agent of the respondent at Polling Station No. 40, DW-7 Lalu Ram, said to be the polling agent of the respondent at Polling Station No. 39, DW-8, Bheem Singh Chauhan, said to be one of the workers of BJP and present at Polling Station No. 39, and DW-9 Kalpana Kunwar, the wife of the respondent.
The respondent has also produced several documents in evidence that shall be referred at the relevant places. However, again, the particulars of the documents so produced are summarised hereunder while arranging the same, as far as possible and feasible, issue-wise. The documents at Sl. Nos. 1 to 14 essentially relate to the aspects concerning tendered votes whereas the other documents at Sl. Nos. 15 to 22 relate to issue No. 1 and corollary aspects.
S.No. Exhibit Description
1 Ex.D3: Marked copy of electoral roll of Polling
Booth No.117
2 Ex.D4: Form No.17A of Polling Booth No.117
3 Ex.D5: Form No.17B of Polling Booth No.117
4 Ex.D6: Marked copy of electoral roll of Polling
Booth No.199
5 Ex.D7: Form No.17B of Polling Booth No.199
6 Ex.D8: Form No.17A of Polling Booth No.199
7 Ex.D9: Form No.17B of Polling Booth No.73
8 Ex.D17: Form No.17A of Polling Booth No. 73
9 Ex.D10: Form No.17B of Polling Booth No.61
S.B. Election Petition No. 1/2009
C.P. Joshi Vs. Kalyan Singh Chouhan
41
S.No. Exhibit Description
10 Ex.D11: Relevant page of Form No.17A of
Polling Booth No.61 (Entire register of
Form No. 17A of Polling Booth No. 61
has also been separately marked Ex.
D11).
11 Ex.D16: Marked copy of electoral roll of Polling
Booth No. 61
12 Ex.D18: Marked copy of Electoral Roll of
Polling Booth No.27
13 Ex.D19: Form No.17A of Polling Booth No.27
14 Ex.D20: Form No.17B of Polling Booth No.27
Ex.D12: PAN Card of Kalpna Kanwar
(Copy of PAN card of Kalpna Kanwar
15 is Ex. D12A)
16 Ex.D13: Original voter ID Card of Kalpna
Kanwar (Copy of Voter ID Card of
Kalpna Kanwar is Ex.D13A)
17 Ex.D14: Original Certificate of Registration of
Tractor No.RJ30-RA-0063 (Copy of
certificate of Registration of Tractor
No.RJ30-RA-0063 is Ex.D14A)
18 Ex.D15: Original LIC Policy of Kalpna Kanwar
(Copy of LIC Policy of Kalpna Kanwar
is Ex.D15A)
19 Ex.D1: Application for recounting
20 Ex.D2: Report relating to recounting
21 Ex.Dw6/1: Photo copy of appointment letter of
Polling Agent of Booth No.40 (Suresh
Acharya).
22 Ex.Dw7/1: Copy of appointment letter of Polling
Agent of Booth No.39 (Lalu Ram
Gameti)
It may also be noticed that apart from the aforesaid, there had been other documents like Annexure-5 filed with the reply, being the copies from the electoral rolls concerning different voters; and Annexure-6, being various communications relating to the complaints of the respondent about interference of the petitioner in the record for the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 42 purpose of filing the election petition. While the petitioner has admitted the documents at Annexure-5 of the reply, those at Annexure-6 have been denied.
However, the documents collectively placed as Annexure-6 with the reply have not been marked exhibit in evidence and apparent it is that the respondent has given up his case of allegations against the petitioner about interference with the record for the purpose of filing the election petition. This matter relating to the allegations by the respondent against the petitioner is left at that only.
Apart from the above documents as produced by the respective parties, as noticed, the respondent moved an application (IA No. 19505/2011) on 08.11.2011 with reference to Sections 56 and 57 of the Indian Evidence Act and Section 151 CPC and filed certain documents with the request for taking judicial notice of the same. These documents are: (i) a copy of the mark-sheet of the Secondary School Examination 1979, said to be of the wife of the respondent in her maiden name "Kum. Kalpana Rathore" and bearing her date of birth as 10.04.1962; (ii) a certified copy of the register containing the particulars and dates of issuance and distribution of Photo Identity Cards of the voters of Part No. 39, Dhani Rebariyan, Tehsil Nathdwara, District Rajsamand as issued by the Electoral Registration Officer (SDM, Nathdwara); and (iii) a certified copy of the list of voters pertaining to Part No. 39 of Nathdwara Legislative Assembly Constituency No. 176, whose photography had not been taken place from 27.06.2010 to S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 43 06.07.2010, as prepared by Booth Level Officer of Part No. 39. This copy is also issued by the same Electoral Registration Officer (SDM, Nathdwara).
While contending against the aforesaid application, the petitioner has filed with his reply a certified copy issued by the same Electoral Registration Officer (SDM, Nathdwara) with the copy of the communication dated 27.06.2010 by him to the Assistant Electoral Registration Officer, Nathdwara for distribution of the Photo ID Card.
In the rejoinder to the reply filed by the petitioner, the respondent has, however, produced (i) a copy of the mark- sheet of first year examination of Three Year Degree Course, 1982, in the name of "Miss Kalpana Rathore" with Enrolment No. 81-1154, as issued on 17.11.2011; (ii) a copy of the marks- sheet of second year examination in the same name of "Miss Kalpana Rathore" at Enrolment No. 81-1154 as issued on 16.11.2011; and (iii) a certificate from the Rajasthan University, Jaipur dated 17.11.2011 stating that Kalpana Rathore daughter of Ram Singh passed B.Com Supplementary Examination in the year 1984 at Enrolment No. 81-1154.
Determination of the questions/points arising in the matter Having taken into comprehension the proceedings of this election petition; and the pleadings, issues and description of the evidence and other material on record, the questions involved in the matter could be taken up for determination.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 44 In this matter, issue No. 1 has been the real bone of contention where the petitioner has alleged double voting by the wife of the respondent; and the respondent has emphatically denied such allegation. Substantial and major part of the trial of this election petition has been directed towards issue No. 1 only. So far issue No. 2 regarding tendered votes is concerned, as noticed, the case has got confined to two such votes only; and in that regard too, not much of dispute remains. Appropriate does it appear to take up issue No. 2 alongwith its corollary aspects for determination before issue No. 1 and its related questions.
ISSUE NO. 2
Issue No.2 has been framed in this case essentially with reference to the averments contained in paragraph Nos.13 to 18 of the petition that at the initial stage, the votes at the referred Polling Stations and serial numbers were improperly received where someone else voted while impersonating the genuine voter; and that the genuine voter, upon reaching the Polling Station established his /her identity and was, therefore, allowed to cast tendered vote. As commented at the outset, the question in this issue now remains limited only in regard to two votes of Polling Station Nos.27 and 61.
As noticed, at the initial stage, the respondent put to serious contention the averments regarding tendered votes even to the extent that an application under Order VI Rule 16 CPC was moved for striking out such pleadings as being S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 45 frivolous and unnecessary that was, of course, dismissed. Then, in the reply too, the respondent has denied the averments as taken in the petition in regard to such tendered votes.
However, at the later stage, there has been a shift in the stand of the respondent and in fact, the respondent attempted summoning of the documents relating to all the tendered votes in the constituency. The prayer as made in relation to the votes not forming the subject-matter of the petition was declined by the order dated 24.05.2010. The respondent even filed an appeal before the Hon'ble Supreme Court (Appeal No.870/2011) with a contention with reference to the decision in Dr. Wilfred D'Souza's case (supra) that all the tendered votes were required to be counted. As already noticed, the Hon'ble Supreme Court did not accept the contention of the respondent and the said appeal was dismissed on 24.01.2011. The respondent persisted with his attempt to seek enquiry into all the tendered votes and, thus, even cited the witnesses relating to other Polling Station Nos.68, 124 and 192 and they were sought to be summoned, again with reference to the contention that all the tendered votes were to be counted. The application moved in this regard was, however, rejected on 13.03.2011. Another attempt was made by producing the witness DW-3 Shanti Lal Kalal, the Presiding Officer at Polling Station No.73 in relation to a tendered vote cast by one Seema but the Court declined the evidence in that regard although the statement of the same witness in regard to one of S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 46 the other tendered voter, Bargat Bano, was allowed. It may also be noticed that even in the cross-examination of the petitioner as carried on 08.07.2010, the respondent did produce the documents Exhibits D-3 to D-5 relating to the voter at Entry No. 714 of Polling Station No. 117; as Exhibits D-6 to D-8 relating to the voter at Entry No. 502 of Polling Station No. 199; and as Exhibits D-9 and D-17 relating to the voter at Polling Station No. 73. The documents have also been produced by the respondent as Exhibits D-10, D-11 and D-16 relating to the voter at Entry No. 1122 at Polling Station No. 61 i.e., Kana son of Roda, who has been examined by the petitioner as PW-5. The respondent has further produced the documents Exhibits D-18 to D-20 relating to voter at Entry No. 311 of Polling Station No. 27 i.e., Smt. Kamla wife of Champa Lal, who was cited as witness by the petitioner also but was examined as the respondent's witness, DW-4.
From the above, this much is apparent that the respondent himself, during the course of trial, has produced such documents and witnesses as if make out a case of re- count of tendered votes. In fact, at the last stage of the matter, the respondent himself moved the application (IA No.10636/2011) with the prayer as already quoted hereinbefore that the initial votes cast at the said Polling Station Nos. 27 and 61 may be excluded and the tendered votes cast by Smt. Kamla wife of Champa Lal (DW-4) and by Kana son of Roda (PW-5) may be counted. Thus, the shift in the stand of the respondent, to have the tendered votes S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 47 counted, is more than conspicuous.
In any case, the fact of the matter remains that ultimately before the Court, there are three witnesses examined in relation to the tendered votes namely, PW-5 Kana son of Roda, as examined by the petitioner and said to be the voter of Polling Station No.61 at serial number 1122. The Presiding Officer of the said Polling Station No.61 Shri Prem Singh has been examined by the respondent as DW-2. The other witness in relation to the tendered vote is DW-4 Smt. Kamla wife of Champa Lal, the voter of Polling Station No.27 at serial number 311.
In regard to this issue, the learned counsel for the petitioner has referred to the evidence on record and submitted that the fact of twice over non-genuine votes having been cast at Polling Station No.61 (at serial numbers 238 and 428 in the document Ex.D/11 - Form No. 17A) by impersonation as against the true voter at serial number 1122 i.e., Kana PW-5 is clear on the face of record. Similarly, in relation to the voter Smt. Kamla of Polling Station No.27 (serial number 311), other than genuine voter having been cast the vote at serial No.133 of the concerning Form No.17A (Ex.D/19) is also established. It is submitted that from the testimony of these witnesses, it is also clear that they, upon reaching the polling stations and on being informed of the fact about casting of the vote against their respective names, established their identity and were allowed to cast the tendered votes.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 48 The learned counsel has referred to the decision in Dr. Wilfred D' Souza's case (supra) and submitted that on the established principles, the votes earlier cast are required to be removed out and tendered votes are required to be counted. The learned counsel for the respondent has also not put this aspect of the matter into much of the contention but submitted that the glaring fact like the one emanating from the document Ex.D/11 remains that two persons were allowed to cast the votes as voter number 1122 at Polling Station No.61 and then, in the document Ex.D/10 (Form No.17B) in regard to the signatures of the tendered voter, reference was made only to the vote cast at serial number 428 but not to that at serial No.238. According to the learned counsel, this nature mistakes and omissions clearly nullify the submissions made on behalf of the petitioner about presumption of all official acts being performed as per rules. This part of the contention has essentially been directed towards the contention as urged on behalf of the petitioner in issue No. 1 on presumption of validity of the official acts; and shall be considered at the relevant place in issue No.1. For the present purpose, suffice is to notice that the learned counsel were ad idem on the point that once the genuineness of the true voter is established, his tendered vote is required to be counted after excluding both the votes earlier cast against the serial number pertaining to him.
As noticed, in fact, the respondent himself has moved the application for decoding of concerned votes and counting S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 49 of tendered votes in relation to these two voters , Kana PW-5 and Smt. Kamla DW-4. This application as moved by the respondent before commencement of the final arguments in the matter was kept pending by the order dated 12.07.2011.
After having taken into comprehension all the facts and circumstances of the case, the principles of law as enunciated in Dr. Wilfred D' Souza's case (supra) appear to be having direct application hereto. Therein, the Hon'ble Supreme Court observed and held as under:-
".....Before, however, a tendered ballot paper can be taken into account during the proceedings of election petition evidence would have to be led on the following two points:
(1) The person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number. (2) It was such genuine voter who marked the tendered ballot paper.
So, far as the first point is concerned, the evidence of the genuine voter that he had not cast such initial vote would normally and in the absence of any circumstance casting doubt regarding its veracity be sufficient. Once the above two points are proved, the following consequences would follow:
(a) The court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast; and
(b) The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked.
15. It may also be mentioned that the proper occasion for scrutinizing tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters."
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 50 The present case directly answers to all the parameters as delineated by the Hon'ble Supreme Court in Dr. Wilfred D' Souza's case and all the necessary ingredients for ordering re- count in relation to the said two tendered votes. It has been established with the testimony of Kana (PW-5) and Smt. Kamla (DW-4) that someone else did cast the vote/votes on the particular serial numbers in the electoral rolls referable to them; and that they, the genuine voters, marked the tendered ballot papers after establishing their identity. There is nothing to doubt the veracity of the statements made by these two witnesses. In relation to PW-5 Kana, noticeable it is that his testimony is corroborated by, and all the necessary requirements are established with the statements of DW-2 Prem Singh, the Presiding Officer of Polling Station No. 61, who has, inter alia, said,-
"....When vote of a voter is already cast and some person comes and claims himself to be genuine voter then first we will satisfy ourself about the genuineness of the person. If he satisfies about his genuineness, then a tender vote is issued to him. In this enquiry we also enquire whether said person himself had already cast vote or not. It it wrong to suggest that for giving a tender vote to a voter the Presiding Officer is required to obtain signature of such claimed genuine voter. On Ex.D.10, i.e. Form 17B at place C to D my signature is there. Entry in Ex.D.10 at S.No. 1 is in the name of Kana s/o Roda. Against name of Kana s/o Roda voter's Number is written as 1122. In this Ex.D.10 in column no.4 there is entry of No.428 which is of Form 17A. Against this entry of Kana s/o Roda in Ex.D.10, in last column A to B signature is of Kana. Inadvertently, I stated that signature of subsequent voter is not obtained on form 17B. In Ex.D.11 at page 43(page itself has been marked Ex.D.11 on 8.7.2010), my signature is A to B. In Ex.D.11 at page 43 at S.No.428 there is entry of voter no.1122 in second column which is marked as 'Y'.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 51 It is true that subsequent to casting of vote at S.No.238 and 428 as recorded in Ex.D.11 other person came and claimed himself to be genuine voter and he was given tender Ballot Paper and in view of my enquiry I say that person who was issued tender Ballot Paper vote was the genuine voter and the two earlier persons were not the genuine persons."
Of course, the concerned Polling Officer of the Polling Station No. 27 has not been produced but in the totality of the circumstances and more or less undeniable position, there appears no reason to doubt the veracity of the statements made by Smt. Kamla, DW-4. Then, the requirement of narrow margin between the votes of two candidates, as indicated by the Hon'ble Supreme Court, cannot be better met than the case of the present nature where the margin between the candidates has been the thinnest possible minimum i.e., of one (01) vote only. Obvious it is that improper rejection or acceptance of any vote is going to have a direct and material effect on the result of this election.
Thus, while disposing of the application (IA No.10636/2011), it is held in issue No.2 that: (i) the vote cast at Polling Station No.27 as against the name of voter at serial number 311 through EVM is required to be excluded from the total votes; and the tendered ballot marked by the voter Kamla wife of Champa Lal is required to be opened and counted; and
(ii) the votes cast at Polling Station No.61 as against the name of voter at serial number 1122 through EVM are required to be excluded from the total votes; and the tendered ballot marked by the voter Kana son of Roda is required to be opened and counted.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 52 Though the learned counsel for the respondent attempted to suggest that in the true application of the principles enunciated in the case of T.A.Ahammed Kabeer Vs. A.A.Azeez & Ors.: (2003) 5 SCC 650, a case of re-counting is not even made out and this aspect was not considered in the earlier orders passed in this matter but, such submissions need no further dilatation for the orders already passed and for the admitted position of both the parties that the said two tendered votes are required to be counted after exclusion of the earlier votes cast with reference to the serial number of the genuine voters. In fact, counting of these tendered votes would not that be akin to re-counting but would be of counting of genuine votes, which is always necessary for maintaining the purity of an election.
ISSUE NO. 1
It has already been noticed that all the major aspects related to and relevant for issue No.1 remain thoroughly contested. Issue No.1 as framed itself projects the basic question involved in the matter i.e., as to whether the wife of the respondent did cast her votes at two places i.e., at Polling Station No.39 and Polling Station No.40 (for the contextual continuity and convenience, this aspect has also been referred herein as that of "double voting").
The petitioner maintains that the wife of the respondent, who is known by the name "Kalpana Kunwar" as also by the name "Kalpana Singh", was registered as a voter at two places S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 53 i.e., at serial number 484 in Part No.39 and at serial number 727 in Part No.40; and she did cast her vote at both the places viz., at Polling Station No.39 and at Polling Station No.40. On the other hand, the stand of the respondent and his witnesses, which include his wife (DW-9), has been clear and specific that the wife of the respondent is known only by the name "Smt. Kalpana Kunwar"; that she was registered only in Part No.40; and that she cast her vote only at Polling Station No.40.
The disputed registration has been of the voter at serial number 484 in Part No.39 in the name "Smt. Kalpana Singh"
with her husband's name as "Shri Kalyan Singh". The respondent alleges that such particulars of the voter at serial number 484 in Part No.39 do not refer to his wife; and that the petitioner has attempted to mislead the Court with an attempt to take advantage of the similarity of the first name of the lady as that of his wife and so also the similarity in the husband's name i.e., the name by which the respondent is known.
The learned counsel for the parties have advanced substantial number of arguments in support of their respective stand. From the submissions as made, several points with their relevant subsidiary/incidental points arise for determination for proper and effective adjudication of issue No.1. Broadly speaking, the major points arising, severally and inter-dependently, for determination are:
First, as to whether the case as set up by the petitioner in regard to the allegations of double voting by the wife of the respondent suffers from want of relevant pleadings and basis S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 54 of the allegations; and as to what is the effect of the fact that the objection regarding double voting was not raised at the earlier stages of polling and counting?
Secondly, as to whether the wife of the respondent Kalyan Singh Chouhan bears the name Smt. Kalpana Kunwar but is also known as Smt. Kalpana Singh; and she signs in English as Kalpana Singh?
Thirdly, as to whether the name of wife of the respondent was registered at two places in the electoral roll of Nathdwara Legislative Assembly Constituency No.176 i.e., at Sl. No.484 in Part No.39 and Sl. No.727 in Part No.40?
Fourthly, as to whether the wife of the respondent, who admittedly voted at Polling Station No.40, did not put her signatures at the relevant documents while so voting?
Fifthly, as to whether the wife of the respondent did cast her vote at Polling Station No.39 too and thereby, voted at two places?
The points above could now be taken up for determination, in their chronology; but, of course, the ancilliary/incidental points, interwoven in the points above shall also be considered at the relevant stage.
Point No.1 In regard to the want of requisite pleading and want of raising objections at the earlier stages, the learned counsel for the respondent has strenuously argued that though the petitioner has attempted to suggest a case of double voting by S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 55 the wife of the respondent but the pleadings are lacking in material facts inasmuch as the basis of such allegations is not forthcoming in the pleadings. The learned counsel submitted that basis of a particular pleading is different than the evidence in that regard; that the basis is required to be pleaded; and in the absence thereof, the allegations as made regarding different names of the wife of the respondent, her registration at two places, and double voting by her, all remain baseless and do not call for consideration and adjudication. The learned counsel referred to the verification as made at the foot of the petition and in the supporting affidavit wherein the petitioner has verified the contents of paragraph 12 of the petition as being the averments which are believed to be true by him but no basis of such belief has been stated. It is submitted that the petitioner, in his statement, has suggested that the fact about double voting came to his notice on being divulged by his agents/workers in the meeting dated 14.12.2008 but neither the facts regarding the alleged meeting dated 14.12.2008 have been pleaded nor the source of information has been disclosed. The submission of the learned counsel has been that the pleading being bereft of the requisite basis, the entire case of the petitioner falls to the ground. The learned counsel for the respondent has referred to and relied upon the decisions in Jitendra Bahadur Singh Vs. Krishna Behari & Ors.:AIR 1970 SC 276, Dr.Jagjit Singh Vs. Giani Kartar Singh & Ors.: AIR 1966 SC 773 and Vadivelu Vs. Sundaram & Ors.:
AIR 2000 SC 3230.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 56 Per contra, the learned counsel for the petitioner submitted that the petitioner has made all the averments as necessary and as required. According to the learned counsel, it was not necessary for the petitioner to disclose the names of the polling agents who divulged the information or the date of his receiving knowledge; and for the purpose of Section 83 of the Act of 1951, the averments are complete when the petitioner has stated about his having received the information with relevant particulars regarding the allegations. The learned counsel for the petitioner has referred to the decisions in Manphul Singh Vs. Surinder Singh: (1973) 2 SCC 599, Ashwani Kumar Sharma Vs. Yaduvansh Singh & Ors.: (1998) 1 SCC 416, Virender Nath Gautam Vs. Satpal Singh & Ors.:
AIR 2007 SC 581, A.Neelalohithadasan Nadar Vs. George Mascrene & Ors.:1994 Supp (2) SCC 619 and Smt.Rekha Rana Vs. Jaipal Sharma & Ors.: AIR 2009 SC 2946.
The learned counsel has also referred to the fact that such objection about shortcomings in the pleadings was taken at the earlier point of time also by the respondent by moving an application under Order VI Rule 16 CPC in regard to the averments in paragraphs Nos.13 to 18 that was rejected by the order dated 19.11.2009; and the SLP against the same was also rejected by the Hon'ble Supreme Court on 16.12.2009.
Having given a thoughtful consideration to the rival submissions, this Court is unable to sustain the objections as S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 57 urged on behalf of the respondent regarding lack of basis in the petition.
Paragraph 12 of the petition has been reproduced hereinabove carrying the allegations about double voting by the wife of the respondent. The petitioner has pleaded the facts and allegations about the two names of the respondent's wife, about her registration at two places, and about her casting the votes at two places. The petitioner has not verified such averments on the basis of his own knowledge but has specifically stated that such averments were believed to be true and correct based on the information received from his polling agent. What turns out in the present case is that the material facts have been pleaded and, of course, all the details and particulars forming the basis of the averments have not been stated in the petition. Stating of all such details and particulars in the petition was not even required. In the case of Virender Nath Gautam (supra) as relied upon by the learned counsel for the petitioner, the Hon'ble Supreme Court has pointed out the distinction between 'material facts' and 'particulars' in the following:-
"33. A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 58
34. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."
Further, paragraph 14 of the judgment in A.Neelalohithadasan Nadar's case (supra) is sufficient to
negate the contentions as urged by the learned counsel for the respondent on the shortcoming in the pleading as taken in the present petition. Therein, the Hon'ble Supreme Court found the pleadings sufficient in regard to double voting when the election petitioner, on the basis of some information, was able to entertain the belief; and he was held entitled to plead that fact on his own entertained belief. The Hon'ble Supreme Court said,-
"14. Another argument put forth by Mr Prashant Bhushan was that the pleadings in the election petition were insufficient to justify inspection inasmuch as except for mentioning that there had been double voting by 19 persons nothing else was stated about the basis on which the election petitioner came to the conclusion that these names, which apparently had appeared twice in the electoral roll, belonged to one and the same person and that those persons had in fact voted twice. It was also commented that no material facts, in the form of affidavits by single persons or polling agents alleging that they had seen and heard about those persons having voted twice was filed in support of the petition. It is maintained that in the absence of evidence of these particulars being pleaded as to the source of knowledge of double voting it was dangerous to allow enquiring into such an allegation on the bare allegation of double registration of votes and possible double voting. We have pondered over this matter but regretfully do not accept the argument of the learned counsel. If a name has been registered twice enabling a person to take the advantage of voting in two different polling S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 59 stations, Section 62 mandates that if he polls both these votes then both votes are void. A void vote cast is a vote void ab initio. In the nature of things the void taint in the election would have to be traced to the election papers for without that bare oral evidence would be of no use, and at best would be word against word, making application of Section 62(4) wellnigh impossible. If the election petitioner on some information, material or otherwise is able to entertain the belief that a particular voter, double registered, is known to have voted twice, he can certainly plead to that fact on his own entertained belief and need not ordinarily resort to giving details of the sources of his information or knowledge or the entertainment of his belief because registration of double vote is by itself the starting point; the exercise of both votes being the second. The election petitioner had specifically mentioned and in clear-cut terms that 19 persons had double voted. The question was not resoluble merely on oral evidence, whether they had or had not, except to put those persons into the witness box, hear their version and confront them with the election papers. The sphere of enquiry at that stage is to the voting and not for discovering the name of the person to whom the vote was cast. That inevitably has to be found out after double voting or impersonated voting has been found out leading to the new step to trace them and nullify them. On the pleading of the parties as such, on both sides, a case for inspection at the stage when it was done had been made out. We thus find no error committed in the approach of the High Court."
(emphasis supplied) Though the learned counsel for the respondent has attempted to distinguish the decision in A.Neelalohithadasan's case with the submissions that therein, both the parties were ad idem about the factum of double voting but, in the opinion of this Court, such a distinction does not take away the applicability of the ratio of the decision as to what and how much is required to be pleaded.
There is no doubt about the propositions as emanating from the decisions of the Hon'ble Supreme Court in Jitendra Bahadur Singh and other cases relied upon by the learned S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 60 counsel for the respondent on the requirement that the pleading should contain the statement of the material facts but, as noticed, the petitioner has pleaded the material facts about his allegation of double voting by the wife of the respondent and has distinctly stated the same to be based on his belief generated by the information from his polling agents. As to when such information was divulged and by whom and in what manner, might all be the matters of particulars but cannot be said to be of such material facts that in their absence, the petition be dubbed as lacking in essential pleading.
It has forcefully been submitted on behalf of the respondent that at the earlier stage of the election process, particularly at the time of polling, counting and even in the request for re-counting, no grievance was made that the vote/s cast by his wife should not be accepted for she having cast the votes at two polling stations i.e., at Station No.39 in her name entered at serial number 484 and at Station No.40 in her name entered at serial number 727. It is contended that for this reason, the allegations as now put forward by way this election petition deserve to be rejected. The contention remains meritless.
It is neither the evidence on record nor could it be presumed that such a crucial fact about casting of two votes by the wife of the respondent was known to the petitioner or his agent/s at the time of polling or counting so as to be put in objections. Other way round, even if it be assumed that despite knowledge, such a fact was omitted to be mentioned at the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 61 earlier point of time, it is hardly of any bearing. If any voter, be it the wife of the respondent or anyone, has cast the votes more than once at the same election and for the same constituency, the votes so cast are void per Section 62 (4) of the Act of 1951 that reads as under:-
"(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void."
Thus, if a person casts vote more than once at any election, all his votes in that constituency are void as per the mandate of law; and they are definitely required to be declared so and removed out of count whenever occasion arises, irrespective of whether any objection about double or multiple voting by one voter had been taken earlier or not.
Mere not raising of the objection at the earlier point of time does not furnish immunity to the void votes in the enquiry in election petition. The matter concerns purity of election and obviously, the fundamentals are of counting the valid and genuine votes and to remove out the invalid votes. It is not a case of any such contractual or akin legal right where any aspect of acquiescence or waiver would operate against any particular claim. A vote declared void by the statute remains void for all the time and for all purposes.
Thus the contentions about want of raising objection earlier and want of requisite pleading deserve to be, and are, hereby rejected. Hence, the first point for determination as S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 62 formulated hereinabove stands answered against the respondent.
Point No.2 So far the second point is concerned, it has arisen in the background of the facts that the referred voter at serial number 727 of Part No.40 bears the name "Smt.Kalpana Kunwar"
whereas the referred voter at serial number 484 of Part No.39 bears the name "Smt.Kalpana Singh"; and the alleged signatures in relation to the votes cast as against the said entries in the electoral roll (at number 727 of 40 and number 484 of 39), as available in the Voters Registers Ex.2 and Ex.4 are in English as Kalpana Singh.
It is the case of the petitioner that the wife of the respondent bears the name "Smt.Kalpana Kunwar" but is also known as "Smt.Kalpana Singh" and that she signs in English as "Kalpana Singh". The witness Rai Singh examined by the petitioner as PW-3 has asserted that he has a distant relationship with the respondent and that the respondent's wife is known as Kalpana Singh. Per contra, the respondent and his wife have categorically denied such assertions of the petitioner and his witness that she is also known as Smt. Kalpana Singh and is signing in English as Kalpana Singh. The learned counsel for the parties have extensively referred to the oral and documentary evidence on record.
In regard to this point, in the opinion of this Court, multiple documents are not required to be deeply analysed and S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 63 dilated upon because in the form of cogent and rather decisive evidence an undeniable and indisputable document is available as produced by the respondent himself, the original whereof was brought before the Court by his wife (DW-9). It is her PAN Card (Ex.D/12). It is not in dispute that this PAN Card belongs to the wife of the respondent. The fact of the matter remains that on this PAN Card, her signatures are available in English as "Kalpana Singh". This aspect was precisely put to her in cross-examination and the question-answer in that regard appear as follows:-
"Question: Whether the signatures marked A to B on the document Ex.D/12 are yours?
Answer: It has been a matter of a time past, and I don't remember."
The witness attempted to suggest some kind of ignorance by alleging that PAN Card was prepared by her husband but could dare not deny her signatures in English as occurring therein. She could only say that she did not remember, being an old matter. It has not been her statement that signatures as available on the PAN Card are not hers. The learned counsel for the respondent has argued that the signatures on the PAN Card are not the original one but are picked up by electronic means from some other papers. This argument hardly cuts any ice. The PAN Card is a document admissible in evidence and its contents do form the part of evidence. It is not the case that anybody has interpolated or interfered with the signatures that appear on the PAN Card S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 64 while or after scanning from the original. As noticed, the wife of the respondent has merely tried to brush aside the pertinent question in this regard by stating failing memory.
There is yet another document - the Enumerator's Register (Ex.4) whereby the names of two other wives of the respondent were sought to be deleted from the electoral roll and the name of the present wife was sought to be inserted. The respondent has admitted his signatures on this document but has attempted to suggest that he signed the blank-form and all the particulars were filled in by the enumerator. In the first place, this suggestion itself remains hollow; and is neither plausible nor acceptable. The document (Ex.4) is clearly binding on the respondent with his signatures thereupon. Even if it be assumed that the enumerator fill in the form, obviously, he could not have mentioned the names to be deleted and to be inserted without being supplied with such information. In any case, it is clear from the document (Ex.4) that the name sought to be inserted was earlier stated as "Kalpana Kunwar" and then, the word 'Kunwar' ('कवर') in Hindi was scored out and the word 'Singh' ('स ह') in Hindi was inserted instead. The learned counsel for the petitioner has rightly argued that either way, this document makes out the case that wife of the respondent was known by the name Kalpana Singh and hence, the word 'Singh' ('स ह') was inserted after scoring out the word 'Kunwar' ('कवर'). This document is another strong indicator that the wife of the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 65 respondent is known by the name Kalpana Singh.
The learned counsel for the respondent has argued that this document (Ex.4) is not covered by any of the rules referable to preparation of electoral rolls and then, this document, which was not earlier mentioned in the list of documents but was called by way of application, clearly carries interpolation where the word 'Kunwar' ('कवर') has been changed to 'Singh' ('स ह').
In the opinion of this Court, this document cannot be so lightly brushed aside once it has been duly exhibited in evidence nor the respondent could be held not bound by it. On the basis of this document (Ex.4), revision of rolls was carried out. The learned counsel for the petitioner has rightly pointed out that Ex.4 is the document meant for general revision of rolls under Rule 25 of the Registration of Electors Rules, 1960 and for this purpose, Form No.6 of the said Rules was not required to be used.
The material witness in this case, i.e., the wife of the respondent DW-9 Kalpana Kunwar, had the opportunity to explain several of the relevant facts and she was indeed put to cross-examination on all the relevant aspects including those emanating from and related with the Enumerator's record (Ex.4), the electoral roll pertaining to Part No.86 (that has now been comprised in Part No.39) for the year 2002 (Ex.10) and the electoral roll of Part No.39 (Ex.3) but she had simply avoided to give specific reply to all the material questions; and S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 66 her stock answer had been that she had no knowledge about the concerning documents and entries therein. This part of her cross-examination with the observations of the Court could be taken note of as under: -
"I do not know as to who got my name included in the voter list after the marriage.
The witness was shown the register marked Ex.4 containing the Enumerators' Record and was posed the question that by this document her name got included and the names of Shanker Kunwar and Urmila Knunwar, other wifes of Kalyan Singh, got excluded from the voters list to which the witness answered that she was unable to say anything about this document. However, the witness stated that the contents of the document are not in the handwriting of Kalyan Singhji and his signatures are there at portion marked A to B. The witness was shown the entry at the portion marked C to D and was suggested that by this entry, the name of the wife of Kalyan Singh got included but the name stated had been Kalpana Singh. To this suggestion the witness answered that Kalpana Singh is not my name but my name is Kalpana Kunwar. The witness further stated that at the portion marked C to D in Ex.4, the word "Kunwar"
has been scored out and the word "Singh" inserted.
The witness was shown the electoral roll Ex.10 pertaining to the year 2002 of Nathdawara Legislative Assembly Constituency in relation to the area known as Dagwara and was suggested that the name of Dule Singh father of Kalyan Singh, Kalyan Singhji himself and then Kalpana Singh wife of Kalyan Singh are mentioned at S.No.867, 868 and 869 respectively which the witness again answered that she has no knowledge about this document and can't say about this.
I can't say if my name got included as per the document Ex.4 and then appeared in the voters list for the first time in the document Ex.10.
The witness was shown the marked copy of electoral roll of polling station No.39 (Ex.3) and was suggested that the names of Kalyan Singhji, the witness herself and Yogendra Singh are mentioned at S.Nos.483, 484 and 485 respectively to which the witness again answered that I have no knowledge about these entries."
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 67 There is other corroborative evidence available on record like the Photo Identity Card (Ex.13) issued in the name of Kalpana Singh, which is said to be belonging to the respondent's wife. This fact is disputed on behalf of the respondent and it is contended that as per the record, photo of the voter concerned was not taken until 06.07.2010 and it cannot be the ID Card of the voter concerned. It is, however, noticed, as rightly pointed out on behalf of the petitioner, that DW-6 Suresh Chandra Acharya, the respondent's own witness, has admitted that this document (Ex.13) belongs to the wife of the respondent. This witness, DW-6 Suresh Chandra Acharya, was produced by the respondent essentially to assert that his wife did not sign while voting at Polling Station No.40. This aspect regarding her signing or not while voting at Station No.40 would be examined later in the fourth point for determination but noticeable it is that this witness asserted about himself knowing the wife of the respondent well as he had been visiting their residence regularly for the purpose of taking the children of the respondent to school in his taxi. He has also asserted having met Kalpanaji, wife of the respondent, while taking the children or receiving payment. This witness specifically asserted that he could identify Kalpanaji if her ID Card was shown to him. Thereupon, what was shown to him in the first place was the document Ex.D/13A and after looking at the same, he replied that the same was the identity card of S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 68 Kalpana Kunwar. Thereafter, this witness was shown the document Ex.13 as filed by the petitioner and after looking at the same, he replied that the same was identity card of Kalpana Kunwar. This witness has not been re-examined for any clarification by the respondent.
The suggestion as made on behalf of the respondent that photograph was not taken until 06.07.2010 and that the ID Card of the other voter cannot be with the petitioner are hardly of any bearing in the matter. The fact of the matter remains that the particular document has been placed on record and when shown to a witness who asserted his ability to identify the wife of the respondent, did reply after looking at the document that it was the identity card of the wife of the respondent.
The petitioner's witness Rai Singh has also deposed that he was a distant relative of the respondent and his house was situated just opposite the house of the respondent. He has asserted having seen the wife of the respondent and has further asserted that her name was Smt. Kalpana Singh and she was also known as Kalpana Kunwar. The respondent has extensively cross-examined him on the point with the suggestion that the ladies in their family were not using the word 'Singh' after their name; and that the respondent's other wives did not have the middle name as 'Singh'. It was also suggested in the cross-examination that the witness was annoyed for the respondent having not purchased his land when offered for sale and for the respondent having not S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 69 helped him in a criminal case registered against his nephew. In the opinion of this Court, the suggestions as made to Rai Singh in cross-examination do not demolish whole of his statement where he said that the wife of the respondent was Smt. Kalpana Singh and she was also known as Kalpana Kunwar.
In any case, as observed hereinabove, there is a cogent and powerful piece of evidence in the form of the admitted document i.e., the PAN Card of the wife of the respondent where her signatures appear as Kalpana Singh and there is strong corroborative evidence in the form of the Enumerator's Register (Ex.4) showing that the name of the wife of the respondent was mentioned as Kalpana Singh. In the opinion of this Court, these two documents clinch the issue that Kalpana Singh is the name of the wife of the respondent.
There are other documents available on record marked as Exhibit 19 which were filed alongwith IA No.13518/2010 and being related to an application moved to the Rajsamand Zila Sahahari Bhumi Vikas Bank Ltd., Rajsamand for taking a loan for purchase of a tractor by the respondent's wife. In these documents, at several places, the signatures of the respondent's wife appear in Hindi and English both; and in English, the signatures are distinctly making out the words "Kalpana Singh". It is asserted on behalf of the respondent that his wife signed only in Hindi but the interesting part of the matter is that Hindi signatures as occurring in such documents are making out the words "Kalpana Chouhan" and not S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 70 "Kalpana Kunwar". Be that as it may, it has, again, not been established that anybody made any interpolation in the said documents. The possibility of the wife of the respondent putting signatures both in Hindi and English is not ruled out.
In a cumulative effect of the evidence available on record, this Court has no hesitation in coming to the conclusion that the wife of the respondent is also known as Kalpana Singh and does sign in English as Kalpana Singh.
The second point as formulated above is answered in favour of the petitioner and against the respondent.
In fact, there would be other circumstances unfurling hereinafter fortifying the finding that "Smt. Kalpana Singh" is definitely the name of the wife of the respondent Shri Kalyan Singh Chouhan.
Point No.3 The third point for determination as formulated hereinabove has been the most contentious matter: as to whether the wife of respondent was registered as voter at two places, i.e., Part No.40 as well as Part No.39. As noticed, registration of her name in Part No.40 is not a matter of dispute. It is an admitted case of the respondent and his wife that she was registered as a voter in Part No.40 and did vote at Polling Station No.40 with reference to such registration. The question is as to whether she was registered in Part No.39 too.
The petitioner has alleged, with reference to the entry in the electoral roll of Part No.39 of the year 2008 [Ex.23; more S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 71 particularly the relevant page Ex.3], that the entry at serial number 484 refers to the wife of the respondent. The respondent and his wife, however, have denied this allegation.
When we examine the document Ex.23, it is found that the entry just preceding serial number 484 is that of serial number 483 and it refers, admittedly, to none other but the respondent Kalyan Singh. Interestingly, the entry next to 484, i.e., entry number 485 is of the respondent's son Yogendra Singh. These three consecutive entries at serial numbers 483, 484 and 485 record the house number also and in all the three entries, the house number is '18'. The only lacking part in these entries is that at serial number 484, the photograph and identity card number of the voter are not available. Else, the particulars as stated in these three entries read as under:-
"483. RJ/18/141/252448 न म : कल णस ह प त क न म : डलस ह मक न ख : 18 आ : 48 सलग : रष"
"484.
न म : कल न स ह
तत क न म : कल ण स ह
मक न ख : 18
आ : 30 सलग : स "
"485. RJ/18/141/000872
न म : गन" स ह
प त क न म : कल ण स ह
मक न ख : 18
आ : 20 सलग : रष"
The learned counsel for the petitioner has referred to Rule 6(1) of the Registration of Electors Rules, 1960 and submitted that thereby and thereunder, the names in the electoral roll are to be ordinarily arranged according to house S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 72 number and, therefore, the aforesaid 3 consecutive entries containing the same house number relate to the persons residing in the same house. The referred Rule 6(1) of the Rules of 1960 reads as under: -
"6. Order of names.-(1) The names of electors in each part of the roll shall be arranged according to house number, unless the chief electoral officer, subject to any general or special instructions issued by the Election Commission, determines in respect of any part that the alphabetical order is more convenient or that the name shall be arranged partly in one way and partly in the other."
For the aforesaid consecutive entries 483, 484 and 485 carrying the same house number, i.e., 18; and 483 being that of the respondent and 485 being that of the respondent's son, the indications, in the normal and natural course of things, are that the entry of the lady at serial number 484 with husband's name Kalyan Singh ought to be that of the respondent Kalyan Singh's wife. The name in entry 484 is, of course, "Kalpana Singh" but as already held hereinabove, Kalpana Singh is equally the name of the wife of the respondent, who is also known as Kalpana Kunwar.
Another relevant feature emanates from the voter list of the year 2010 for Part No.39 (Ex.17). Therein, admittedly the name of the respondent, his sons Yogendra Singh and Deependra Singh appear at serial numbers 500, 502 and 503 respectively; and the entry at serial number 501 is of Kalpana Singh. All these 4 consecutive entries carry house number as S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 73 '18'. Further, the amended voter list of the year 2010 of Part No.39 has also been produced as Ex.18. Therein, amendments have been stated, which include entry number 501 in the name of Kalpana Singh wife of Kalyan Singh at House No.18 and photograph has appeared and so also, the ID card number. Similarly, entry number 503 is also added in the name of Deependra Singh son of Kalyan Singh at House No.18 with photograph and particulars of ID card. The statement of the respondent in regard to Ex.17 and 18 is as under: -
"After seeing the voter list 2010 for booth/part no.39 (which is marked as Ex.17), my name is entered at entry no.500 (marked as A to B), my son's name is entered at C to D at S.No.502 and my second son's name is entered at S.No.503 (marked as E to F). It is wrong to say that in Ex.17, the entry at S.No.501 in the name of Kalpana Singh is entry of my wife (501 entry is marked as G to H). In Ex.17 at entry no.501 and 503 of Kalpana Singh and Dipendra Singh respectively there are no photographs printed for these entries.
After seeing the amendments in the voter list of the year 2010 of polling booth no.39, which is marked Ex.18, witness stated that at S.No.501 the name mentioned Kalpana Singh is not of my wife. Entry no.501 in amended list of the voters of the year 2010 is not of my wife. The entry no.501 in Ex.18 is marked as A to B. In Ex.18 in entry no.503 there is name of my son Dipendra Singh and also his photo appears in this entry and entry no.503 is marked as C to D. In Ex.18 in entry A to B at S.No.501 the photo shown is not of my wife. My name is Kalyan Singh and my wife's name is Kalpana Kanwar.
Question:
Whether in Ex.17 and Ex.18 in entry no.501 name written as Kalyan Singh is your's or not? Answer:
Since Kalpana Singh is not my wife therefore, the name written as Kalyan Singh in this entry is not mine.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 74 Question:
In entry no.500, 501, 502, 503 the house no.18 is given and this house no.18 is your's.
Answer:
In my village house numbers have not been given."
As observed, the indications prima facie generated from the entries in the document Ex.23, i.e., the voter list of Part No.39 of the year 2008 at numbers 483, 484 and 485 are that in the normal and natural course of conduct and so also in the ordinary operation of law, these entries ought to be of the persons residing in the same house and entry number 484 ought to be that of the respondent's wife. These indications get strengthened with the fact that in the revision of rolls, the said entry in the name of Kalpana Singh wife of Kalyan Singh at the same house No.18 has been maintained (now at serial number 501); between the entries relating to the respondent (serial number 500) and his sons (serial numbers 502 and
503).
The case of the respondent is that only the entry at number 727 in the electoral roll of Part No.40 relates to his wife. The relevant part of this particular electoral roll of Part No.40 has been marked as Ex.1 and the entire document is marked as Ex.22. A significant feature from this document is that there are several entries appearing in relation to house number 153; and the entries bearing numbers 726 and 727 are as follows:
"726 KHT/1323575 न म : कल णस ह प त क न म : डलस ह मक न ख : 153 आ : 48 सलग : रष"
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 75 "727 KHT/1323583 न म : कल न कवर तत क न म : कल णस ह मक न ख : 153 आ : 36 सलग : स "
Both these entries do carry the photographs. The entry at serial number 727 is admittedly of the respondent's wife. The interesting and significant part of the case is that the entry at the aforesaid serial number 726 is of the respondent alone.
The significant aspect of the matter further is that in the revision of rolls with deletion of certain names from Part No.40, the aforesaid entries pertaining to Kalyan Singh and Kalpana Kunwar both were deleted, as appears from the document Ex.15. The respondent has admitted that he got struck out the name of his wife and himself from the voters list of Part No.40 per the amended list Ex.15. The respondent also admitted that he got struck out his name because the same appeared at both the places, i.e., Part No.39 as also Part No.40. This part of the statement of the respondent reads as under:-
"It is true that I got struck off name of my wife and myself from the voter list of the booth no.40. It is wrong to say that I got struck off my name and my wife Kalpana's name because of the reason that there were entries of both at two places, but I got it because my name was entered at both the places, i.e., booth no.39 and booth no.40. It may be true that in certified copy of the voter list of the booth no.40 for the year 2009, there is entry of deletion of my name and deletion of name of my wife. The relevant page of certified copy of the voter list of the year 2009 of booth no.40 is marked as Ex.15. The relevant entry of deletion of name of the respondent and Kalpana Kanwar is A to B."
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 76 A pertinent aspect of the matter surfaces from the document Ex.15, i.e., the process of revision of rolls pertaining to Part No.40. The respondent, admittedly, got his name deleted from Part No.40 as, admittedly, it was appearing twice over i.e., in Part No.39 and so also in Part No.40. Alongside deletion of the respondent's own entry in Part No.40 in the revision of the year 2009, the entry pertaining to the wife of the respondent, i.e., Kalpana Kunwar of house No.153 was also deleted. The respondent could dare not deny this crucial fact that Kalpana Kunwar's entry too got deleted under the document Ex.15.
A crucial question remains unanswered and unexplained by the respondent that if at all the name of his wife was also deleted from Part No.40 alongside himself; and if she was otherwise not having any entry anywhere else, as to what was done for insertion of her name in the voter list? This all has been done at the time when the respondent had been elected and then, this election petition has been continuing with serious allegations of double voting by the wife of the respondent in the elections of 2008. The respondent has given a cryptic reply that it might be true that Ex.15 contains entry of deletion of his name as well as the name of his wife. It cannot be accepted that the respondent or his wife got her name struck out of Part No.40 for no reason or without having a corresponding entry at some other place. It is not the case of the respondent or his wife that she is registered as the voter anywhere else. With S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 77 getting deletion in the year 2009 from Part No.40, the respondent and his wife themselves have made it loud and clear that they were registered at two places and hence, got their entries deleted from Part No.40.
The only logical inference, in the backdrop of the fact that the respondent has otherwise continued to be registered at Part No.39 and other entries of the names of his sons also appear in continuity and in the same house number, is that the entry in between these entries, i.e., at serial number 484 in the questioned electoral roll in the name of Kalpana Singh, is of the respondent's wife.
Another significant aspect of the matter remains that the respondent has not led any evidence to even remotely suggest if the lady at number 484, whose entry as a voter stands right after his entry (483) and right before his son's entry (485) in the same house (18), was any other existing individual. The respondent has also not shown if there was any other Kalyan Singh in his house. The logical and legal inference as available from the documentary evidence reaches finality and conclusiveness for nothing being available on record to rebut.
Further, as already held hereinbefore, the respondent and his wife are wrongly suggesting that she is known only by the name of Kalpana Kunwar. She is known by the name Kalpana Singh also; and she had herself signed for the purpose of PAN Card in English as "Kalpana Singh". The Enumerator's register (Ex.4) corroborates the fact that it was the request made for insertion of the name of the respondent's S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 78 wife as Kalpana Singh with deletion of names of his two earlier wives.
In a cumulative effect on the evidence available on record, this Court has no hesitation in answering point No.3 also in favour of the petitioner and against the respondent and to hold that the name of the wife of the respondent was registered at the relevant time at two places in the electoral roll of Nathdwara Legislative Assembly Constituency No.176, i.e., in Part No.39 and in Part No.40.
Even when it is held that the wife of the respondent bears both the names Kalpana Kunwar and Kalpana Singh and she signs in English as Kalpana Singh and was registered at two places at Part No.39 and Part No.40, the question still remains as to whether she voted at both the places, i.e., at Polling Stations Nos.39 and 40?
The relevant question to precede this core question arises out of the stand as taken by the respondent that though his wife did cast the vote at Polling Station No.40 but did not sign while voting. Therefore, arises the fourth point for determination as formulated.
Point No.4 As observed, the fourth point for determination has arisen in the wake of the position that has been taken by the respondent that though his wife did vote at Polling Station No.40 but did not affix her signatures on the relevant document while so voting.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 79 It has been stated by the respondent DW-1 Kalyan Singh in his examination-in-chief that his wife told him about herself having cast the vote at one place and that being at Polling Station No.40. He has also stated that he had cast his own vote at Polling Station No.39. He has, however, denied that the signatures appearing in the Register 17A relating to Polling Station No.40 (Ex.2) at serial number 715 carrying the entry in relation to voter number 727 at mark A to B, are the signatures of his wife. The witness was also confronted with the averments as taken in the reply to the election petition and the event related with admission denial on 29.04.2010. The relevant part of the statement could be taken note of as under:-
"I cast my vote in this election of 2008. I cast my vote in Booth NO.39. My wife also cast vote in Booth No.40 and she told me so. My wife cast vote which has been entered at S.No.727 in voter list Ex.1 of Polling Booth NO.40. I do not know whether the signature of the voter is obtained in the register 17A before he is allowed to cast vote and this is known to the polling officer. It is wrong to say that in register 17A at S.No.715 of Ex.2 against the entry 727 A to B is my wife's signature.
Question: In reply to election petition at page no.6 you have mentioned that "it is submitted that the wife of answering respondent------ in the electorall roll NO. 727 in Part 40 marked A to B" It is further relevant to point out at page 8 you have mentioned that "it is further relevant to point out ----- polling station No.40 at S.No.727 marked C to D."
Ans: So far as her casting of vote is concerned, she told me that she did cast vote at Booth No.40 but after seeing form 17A of Booth No.40 Ex.2 witness stated that entry A to B is not signature of his wife. This is wrong to say that my wife is since literate and post-graduate, she sign in English as Kalpana Singh- I always saw her singing in Hindi and not in English.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 80 Question: On 29.4.2010 first you admitted signature on form 17A (Ex.2) marked as A to B then after consultation with your Advocate you denied the signatures?
Ans: I admitted/denied documents after consulting with my Advocates for all documents." DW-6 Suresh Chandra Acharya was allegedly the election agent of the respondent at Polling Station No.40. In his statement, the assertion has specifically come up that the wife of the respondent did not put her signatures while voting because a lot of ladies were accompanying her and the agent of the petitioner, Soorveer Singh (PW-4), raised the objection that they were rather canvassing whereupon the Presiding Officer asked her to vote and to leave quickly. The witness has asserted that the wife of the respondent quickly left after casting her vote; and it was found only after her leaving that her signatures had not been obtained on the relevant register wherefor the persons were sent to fetch her but they came back and informed that she had already left; and the officer said that the aspect relating to the signatures of Kalpana Kunwar would be taken care of later. The witness has also stated that there occurred a dialogue between himself and Soorveer Singh and media persons gathered and took the photographs whereafter the polling was continued that ended at the closing time; and that they left the place after polling and sealing of the boxes and the requisite photography. This part of testimony of DW-6 could be taken note of as under:-
"Kalpana Kanwar arrived at Polling Booth No.40 for casting her vote at about 4.30 - 4.45 p.m. S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 81 A large crowd gathered upon her arrival as she was the wife of B.J.P. candidate. When she entered inside the Polling Booth, a lot of ladies accompanied her and upon such large gathering, Shri Shoorveer Singh raised objection that these people were rather canvasing and were not entitled to do so.
Thereupon, the Officers present in the Booth ordered that Kalpana Kanwar should quickly cast her vote and leave the place. Thereupon, she immediately produced her I.D. Card and left quickly after casting her vote.
When she had just left, the Officer sitting at the Booth found that her signatures had not been obtained on the relevant register and therefore, sent the persons available there to fetch her. Thereafter, the persons who had gone to fetch her came back and informed that she had already left.
At the relevant time, already a large number of persons were waiting in the queue for casting their votes and a substantial crowd was already there and closing time was also approaching so the Officers in the Booth ordered that polling be continued and be done fast. So far the aspect of signatures of Kalpana Kanwar was concerned, the Officers said that it would be taken care of later. Thereupon, Shri Shoorveer Singh raised objection and made a request that she should be called for such signatures. Thereupon, there occurred a dialogue between us and various media persons also came and took various Photograhs of the scene; whereafter the matter was pacified, the polling was continued and with the end of the polling time, the polling was closed. After packing and sealing of the ballot boxes and requisite Photography we left the place."
The witness was put in the cross-examination, inter alia, the questions on the procedure to be adopted at the polling booth for a voter to cast the vote. Then, in regard to the respondent's wife, it was suggested to him that only after her putting the signatures and ink having been put on the finger that she cast the vote to which, he again denied and asserted that she did not put her signatures that led to the dialogue.
DW-9, Kalpana Kunwar, wife of the respondent, has categorically denied the signatures marked A to B at Entry S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 82 No.715 of Form 17A (Ex.2) at A to B. The witness has reiterated in her cross-examination that though she went to Polling Station No.40 but she did not sign while voting.
The learned counsel for the petitioner has put a scathing attack on the stand so taken by the respondent with the submissions that this is a story developed as an afterthought. It is submitted that the crucial fact that the wife of the respondent omitting to sign while voting at Polling Station No.40 was not stated in the reply. The learned counsel referred to the decisions in Manubhai Nandlal Amersey Vs. Popatlal Manilal Joshi & Ors.: AIR 1969 SC 734, Sri Harasingh Charan Mohanty Vs. Surendra Mohanty: AIR 1974 SC 47, Kalyan Singh Chouhan Vs. C.P.Joshi: AIR 2011 SC 1127 (the present case only), Harihar Prasad Singh & Ors. Vs. Balmiki Prasad Singh & Ors.: (1975) 1 SCC 212, Janak Dulari Devi & Anr. Vs. Kapildeo Rai & Anr.: (2011) 6 SCC 555, Bondar Singh & Ors. Vs. Nihal Singh & Ors.: (2003) 4 SCC 161 and Vinod Kumar Arora Vs. Smt.Surjit Kaur: AIR 1987 SC 2179 (1) to submit that the evidence as led by the respondent contrary to and away from the pleadings cannot be looked at.
The learned counsel submitted that as per the requirements of the rules, a voter cannot cast the vote without putting signatures on the relevant document and has referred to Rule 49-L of the Rules of 1961; and contended that there is always a presumption of the correctness of the official work per Section 114 (e) of the Evidence Act and when the wife of the respondent did vote at Polling Station No.40 and her signatures S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 83 do appear in the Register in Form 17A with reference to her voter serial number i.e., 727, the presumption would be of her having put the signatures. The learned counsel has referred to the decisions in Chandrakant Uttam Chodankar Vs. Dayanand Rayu Mandrakar & Ors.: AIR 2005 SC 547 (1), P.J.Ratnam Vs. D.Kanikaram & Ors.: AIR 1964 SC 244, MD, Army Welfare Housing Organisation Vs. Sumangal Service (P) Ltd.: (2004) 9 SCC 619 and Lal Babu Hussein & Ors. Vs. Electoral Registration Officer & Ors.: (1995) 3 SCC 100. The learned counsel further submitted that with the testimony of PW-2 Amar Singh, the Polling Officer at Polling Station No.40, it is established that all the acts were carried out in accordance with law and then, no question was put to him that the respondent's wife cast the vote without putting her signatures on the register or that she left without signing.
The learned counsel further submitted that the fact of the respondent's wife having cast the vote at Booth No.40 and having put the signatures is further fortified in the testimony of PW-4 Soorveer Singh, the election agent of the petitioner who was never put to the suggestion about there being rush wherefor the respondent's wife could not sign while voting. The learned counsel also contended that admittedly, all the papers relating to the polling at Station No.40 were sealed in the presence of all concerned; and definitely, the signatures are available in regard to the vote cast at the serial number referable to the wife of the respondent. According to the learned counsel, after sealing, such signatures could not have S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 84 appeared in the register. The learned counsel also referred to the order-sheet dated 29.04.2010 recording the event as has been noticed while taking note of the record of the proceedings hereinabove. The learned counsel submitted that initially, the respondent did put an admission on Form No.17A (Ex.2) but later on changed it to denial after a so-called advice from the lawyer. According to the learned counsel, it had not been the case of the respondent that his wife ever instructed his lawyer and, therefore, he could not have denied the fact with reference to the lawyer's advice. The submission has been that the respondent himself had been waivering and trying to shy away from the hard facts that would ultimately reach to the most crucial fact about double voting by his wife.
Per contra, the learned counsel for the respondent has strenuously argued that the presumption under Section 114 (e) of the Evidence Act may be drawn as regards official acts but no such presumption is envisaged in respect of private or individual acts. According to the learned counsel, no presumption can be drawn about the respondent's wife signing while voting at Station No.40. Further, the learned counsel referred to the testimony of DW-3 Shanti Lal and to the other documentary evidence on record showing some shortcoming, lacuna or want of definite compliance of the requirements of the rules and submitted that these shortcomings themselves show that there cannot be any such presumption that each and every act in the course of election has been performed in a regular manner.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 85 After having given a thoughtful consideration of the rival submissions and having examined the record, this Court has not an iota of doubt that the wife of the respondent while casting her vote at Polling Station No.40 did put her signatures on the relevant register at the relevant place.
In the first place, the submission on behalf of the petitioner that the case as sought to be suggested by the petitioner had not been set up specifically in the pleadings could be examined. In the opinion of this Court, the same principles as have been noticed and applied hereinbefore in regard to want of particulars in the petitioner's own pleadings would largely apply herein too. As to whether the wife of the respondent, in fact, did sign while voting cannot be considered to be a fact in the specific knowledge of the respondent at the time of filing of the reply and this fact essentially partakes the characteristics of particulars. Thus, even if not pleaded specifically by the respondent in his reply, it cannot be said that he is disentitled to suggest the same in the trial. The respondent has pleaded the basic fact in the reply that his wife has informed him about having cast her vote at Polling Station No.40; and that she did not cast the vote at Polling Station No.39.
The decisions as cited by the learned counsel for the petitioner including those in Manubhai Nandlal Amersey, Sri Harasingh Charan Mohanty, Vinod Kumar Arora (supra) essentially dealing with issues of either want of pleading the material fact or of leading evidence contrary to the pleadings, S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 86 do not have a direct application to the present case. Of course, a party is not entitled to give up the case as set up in the pleadings and to propound a new and different one in evidence but, when such essential fact cannot be presumed to be in the knowledge of the respondent at the time of filing of the reply; and is essentially that of particulars, this Court would not reject the case as set up by the respondent only on this ground.
However, this Court would hasten to make it clear at this juncture that only the suggestion of the petitioner that case of the respondent be rejected outright for want of necessary pleadings is not being accepted and else, the correctness of suggestion as made by the respondent would definitely call for scrutiny and is taken up hereafter.
Coming to the question of drawing presumption about official acts having been done in regular course, this Court finds the contentions on behalf of the petitioner not without substance. It has rightly been argued on behalf of the petitioner that when any official act is performed per Section 114 (e) of the Evidence Act, the Court will draw a statutory presumption that the act has been regularly performed. In the case of Chandrakant Uttam Chodankar (supra), the Hon'ble Supreme Court applied the principle in regard to the question of presentation of election petition and service of true copy on the respondent and opined that the presence of endorsement of registry of High Court that true copies were filed at the time of presentation of the petition and that the election petition 'was in S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 87 order' gave rise to the presumption that true copies were served on the respondent. The onus was held lying on the person seeking to rebut the correctness of the official work. In the case of P.J. Ratnam and M.D. Army Welfare Housing Organization (supra) the principle has again been stated that there exists a presumption as regards official transactions having been done in the regular course of business and onus of proving to the contrary lies on the person seeking to dispute. In the case of Lal Babu Hussein (supra), the Hon'ble Supreme Court observed about applicability of such presumption to the registration of electoral roll and pointed out that it may be presumed that the official act performed under the provisions of 1950 Act or the 1960 Rules were regularly done.
The submission of the learned counsel for the respondent that there is no presumption as regards private acts and hence, there will not be a presumption of the respondent's wife signing while voting, in the opinion of this Court, does not correctly co-relate with the matter in issue. The presumption is about official act being done in a regular manner. Thus, if the law requires that no elector would be allowed to cast the vote unless he has put the signature or thumb impression on the register of votes; and an elector has, in fact, voted, the presumption is towards the official act that he was allowed to cast the vote after affixing the signatures/thumb impressions on the register of votes.
So far the individual's acts/actions are concerned, if they follow the official acts or they are to be performed as per official S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 88 requirement for further consequential performance, they would get clubbed with the official act so far the question of presumption under Section 114 (e) of the Evidence Act is concerned.
In the opinion of this Court, the other submission made on behalf of the respondent on the question of presumption are rather far stretched. A mistake here or a mistake there or some technical flaw here or there would not take away the fundamental principle of Section 114 (e) of the Evidence Act as explained and applied by the Hon'ble Supreme Court in the above referred decisions. Per Section 114 ibid., the Court may presume existence of certain facts which it thinks likely to have happened having regard to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case; and per illustration (e) thereof, the Court may presume that judicial and official acts have been regularly performed.
It has been pointed out with reference to the rules and the instructions issued to the Polling Officers that for the purpose of voting, a voter is, inter alia, required to put the signatures on the concerned register before being allowed to cast the vote. Clause (1) of Rule 49-L of the Rules of 1961 reads as under:-
"49-L. Procedure for voting by voting machines.-
(1) Before permitting an elector to vote, the polling officer shall-
(a) record the electoral roll number of the elector as entered in the marked copy of the electoral roll in a register of voters in Form 17-A. S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 89
(b) obtain the signature or the thumb impression of the elector on the said register of votes; and
(c) mark the name of the elector in the marked copy of the electoral roll to indicate that he has been allowed to vote:
Provided that no elector shall be allowed to vote unless he has his signature or thumb impression on the register of voters."
In the Handbook as said to have been issued by the Election Commission of India for the purpose of elections where EVMs are used, point No.8.1 emphasizes the requirements that the voter's slip shall be prepared for an elector after putting mark with indelible ink on his forefinger, making of entry in the register of votes and obtaining his signature/thumb impression on that register.
The presumption would, therefore, be that the voters were allowed to cast the vote as per the procedure laid down; and when the procedure requires taking of signatures, such signatures were, in fact, obtained. However, a decisive conclusion cannot be reached on the basis of presumption alone in this case because, by its very nature, the presumption can be displaced. However, for displacement of such presumption, onus is heavy on the respondent to prove that his wife did not sign while voting at Station No.40. Therefore, now on this point, the matter of analysis is as to whether the respondent has been able to displace the presumption. Thus, the testimony of the relevant witnesses may be examined.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 90 The witnesses produced on behalf of the petitioner in relation to the things that were transacted at Station No.40 are two, namely, PW-2 Amar Singh Meena and PW-4 Soorveer Singh. PW-2 Amar Singh Meena had been the Polling Officer of Polling Station No.40, which he had referred in the name of the place, i.e., "Kothariya". This witness gave out the process of polling which is adopted and then, testified to his signatures at place C to D of the said register in Form No.17A (Ex.2). He has also testified to the fact that videography was carried out at the Polling Station concerned and has referred to the photographs at different slides showing himself wearing sweater. The witness has, of course, said that he did not know whether photographs of all the voters were recorded in the CD or not. The significant part of the matter is that this witness was not cross-examined at all. The entire of his testimony could be read as under: -
"Last election of the Rajasthan State Assembly was held on 4th Dec., 2008. In that election I was assigned duty of Polling Officer of Polling Station at Kothariya in Assembly Constituency No.176. In the process of polling when voter enters the booth first officer will verify the identity of the voter and then said voter will be sent to another officer of the Polling party. Second Officer will obtain signature of the voter in Form No.17A. Said voter thereafter i.e., after signing of the form no.17A will go to the third officer of the Polling Party, who in turn will put mark on the finger of the voter. Then voter will go to the fourth officer of the Polling Party who will start the electronic voting machine, which allows the voter to cast vote, upon which the voter can cast the vote to the candidate of his choice. I cannot say anything about the voter even after looking into the marked copy of the electroll. In Ex.2 at page no.72 in the bottom my signature is at place "C" to "D". I signed each page of the register containing the register17A. I have no knowledge in column No.4 meant for putting remarks, what remarks are put. In Polling Station where I was posted as S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 91 Polling Officer, Videography was conducted. In CD Article-1 my Photos are at slide nos.100_5333, 100_5334 100_5335 and 100_4678 and I am in these Photos wearing brown sweater. In the CD Article-1 photographs of the voters who came to cast vote in the said election have been recorded. Thereafter, the witness stated that I do not know whether photograph of all the voters have been recorded in the CD or not. In the CD photographs are of the voters only and the members of the polling party.
Cross-Examination of the counsel for the respondent: Nil"
Another witness examined by the petitioner in relation to Polling Station No.40 is PW-4 Soorveer Singh. He has testified to the facts that he was at Polling Booth No.40 as the agent of the petitioner; that he knew the respondent and his wife; and that videography was conducted at Booth No.40. The witness identified his photographs from the CD and so also, the photographs of Smt. Kalpana at slide No.100_5296. The witness stated that after 7-8 days from the date of declaration of result, a meeting was convened of congress workers, which was attended by several persons and therein, he informed the petitioner that there was double voting by Smt. Kalpana. The witness in his cross-examination stated that Rai Singh (PW-3) told him that the respondent's wife and the respondent did cast their vote at Polling Station No.39; and himself having stated that Smt. Kalpana voted at Polling Booth No.40 also. Thereafter, in the length of cross-examination, the witness has been posed the questions about his relation with Shri Kalyan Singh,which he denied. The witness further stated that he knew the respondent's wife, who used to visit Chamunda Mata Temple at Kothariya, that was also visited by himself and that S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 92 the Pujari of the temple told him 3 years back about the identity of the wife of the respondent. He has also stated about his himself knowing the former wife of the respondent, Urmila, who too used to visit the temple. He does not know about any other marriage of the respondent. The witness has also stated that he was residing at Kothariya since his birth, that his father contested the election for the post of Sarpanch and in the said election, the respondent was the opposite candidate. The witness has further been cross-examined extensively on his father's contesting election for the office of Sarpanch against the respondent and the respondent having canvassed against his father in the last election etc. As regards the respondent's wife, the question put to him had been that her name was recorded at serial number 727 as Kalpana Kunwar and not Kalpana Singh. Then, he was cross-examined on the point that on 04.12.2008, whether the petitioner's agent Subhash Choudhary or the petitioner came to Booth No.40 or not and he answered in the negative. The witness further stated that he remained seated on the booth regularly and another agent was Shri Dharmendra Singh who used to come to meet him but did not sit regularly. He further stated that the respondent's wife Kalpana Kunwar came to vote at about 2-3 p.m. and he did not know whether any mark was on her finger at the time of polling. The witness further stated that none of the relatives of respondent Shri Kalyan Singh came to cast the vote because their names were not in the voter list of Booth No.40. This part of the testimony deserves to be noticed and reads as under: -
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 93 "......Another polling agent on booth no.40 was Dharmendra Acharaya. During entire polling period I remained seated on the booth and Sh. Dharmendra Acharaya used to come to meet me and he did not sit regularly during polling period. Respondent's wife Kalpana Kanwar came to vote at about 2-3 PM. I do not know whether any mark was on the finger of Kalpana Kanwar at the time of polling. At this polling booth none of the relatives of the respondent Kalyan Singh came to cast vote because their names were not in the voter list of booth no.40."
The cross-examination further proceeded on the questions about Subhash Choudhary and about his own attending the meeting with the petitioner; and as to whether Subhash Choudhary was present there or not, as to whether Subhash Choudhary met him after declaration of the result or not; and about the venue of the meeting etc. The witness in the last stated that he had the knowledge of casting of two votes by Kalpana Kunwar before the meeting but did not inform the petitioner C.P. Joshi about double voting by Kalpana Kunwar earlier. The witness has denied the suggestion that there was no double voting by the respondent's wife or that he was giving a false statement.
The conspicuously missing aspect of the entire story on the part of the respondent is that the suggestion that Kalpana Kunwar did not sign while voting at Station No.40 was not put to the Polling Officer PW-2 and not even to the petitioner's witness PW-4 Soorveer Singh. This omission cannot be ignored and rather sounds more loud when seen in the context of the event seriously harped on by the learned counsel for the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 94 petitioner that the signatures at Station No.40 in relation to entry No.727 were admitted in the first place but were denied later in consultation with the lawyer.
There is a specific story suggested with production of DW-6 Suresh Chandra Acharya that a crowd got collected at the booth and objection was raised by Soorveer Singh and, therefore, Kalpana Kunwar quickly cast her vote and left without signing; and people having been sent to fetch her but she had left; and the polling officer having stated that the aspect of signatures would be taken care of later. However, all these happenings, having a material bearing on the case as sought to be set up by the respondent, were not suggested whether to the Polling Officer of Station No.40 (PW-2) or to Soorveer Singh (PW-4). As noticed, PW-2 was not cross- examined at all. Then, the only thing suggested to PW-4 Soorveer Singh in this regard was as to whether there was any mark on the finger of Kalpana Kunwar at the time of polling. The suggestion was not even as to whether mark was put on the finger or not; and the suggestion was never that she did not sign. What to say of displacing the presumption, large clouds of doubts hover heavily on the story as suggested by the respondent.
The clouds of doubts get thickened with the fact that the concerned register (Ex.2) specifically carries the signatures as against the entry pertaining to voter number 727 at page 72; particularly when examined in conjunction with the specific assertion of DW-6 Suresh Chandra Acharya that Kalpanaji S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 95 came at about 4.30-4.45 p.m., that 20-30 persons cast their votes after her before closing, and that he remained there until the last and left only after packing and sealing of the ballot boxes and requisite photographs. It has rightly been argued on behalf of the petitioner that if signatures were not affixed by voter number 727, who indeed voted at entry number 715 (i.e., admittedly the wife of the respondent) then, how the signatures at all appeared in the register at the relevant entry? The witness DW - 6 had left after packing and sealing of the boxes and the requisite photography. The fact that the signatures are there is not at all in doubt or dispute. In the ordinary course, the signature could only be of the voter number 727, who is none other than the wife of the respondent.
The thick clouds above, which have already taken much heat off the suggestion as made by the respondent and his wife that she did not sign while voting at Station No.40, in their cumulative effect burst into fortifying the presumption that in the voter's register 17A, the signature against a particular entry would relate to the voter number and belonging to him/her.
The presumption, with total rejection of the case of respondent and his wife, takes this Court to the conclusion beyond any doubt that the signatures as occurring at serial number 715, pertaining to voter number 727, belong to the wife of the respondent alone and none else. She did sign while voting at Station No. 40.
Thus point number 4 as formulated also stands answered against the respondent.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 96 However, even when it is held that: the wife of the respondent bears both the names Kalpana Kunwar and Kalpana Singh; that she signs in English as Kalpana Singh; that she was registered at two places namely, Part No.39 and Part No.40; and that she did sign while voting at Station No. 40, the question still remains as to whether she voted at both the places, i.e., at Polling Stations Nos.39 and 40? Her voting at Station No. 40 is not in dispute. Thus, now, comes the last major point for consideration i.e., as to whether she voted at Station No. 39 too?
Point No.5 In order to assert that the wife of the respondent did cast her vote at Polling Station No.39, the petitioner has examined Rai Singh as PW-3. The part of his testimony as regards the name of wife of the respondent has already been dealt with hereinabove in the relevant point. So far the point as to whether the wife of the respondent cast her vote at Station No.39, it is noticed that in the examination-in-chief, this witness stated himself being the Polling Agent for Booth No.39, his distant relationship with the respondent and respondent's wife and in the elections, the wife of the respondent having cast the vote at Polling Station No.39. The witness has corroborated the fact that 4-5 days from the date of declaration of result, there was a meeting of congress party workers of the candidate Shri C.P.Joshi i.e., the petitioner. The witness has S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 97 stated that in this meeting, about 100-150 workers were present and they informed that Smt.Kalpana Singh cast her vote twice. The witness has further asserted that on the same Booth No.39, respondent Kalyan Singh, his brothers Prithvi Singh, Sajjan Singh and Gamer Singh and his children Yogendra Singh, Deependra and other family members also cast their votes. As regards his presence at Polling Booth No.39, the witness stated that he was given appointment letter to act as Polling Agent of Shri C.P.Joshi for Booth No.39; that he alone was the agent for the said booth with no reliever; and that he stayed at the booth from morning to evening. The witness stated that he did not remember the time at which the respondent's wife cast her vote or himself cast the vote but stated that Smt.Kalpana Kunwar cast the vote before himself and he cast the vote in the last. He would further say that his photograph was available on the voters register of Booth No.39 but he did not remember whether Kalpana Kunwar's photograph was there on the list. He has stated that in the marked copy of voters list (Ex.3) of Station No.39, his name was at serial number 520 bearing his photograph too and Kalpana Singh's name was at 484 having no photograph and that she was permitted to cast the vote after verifying her identity from ration card which he did not object.
The testimony of this witness in regard to the core fact about casting of vote by the wife of the respondent at Polling Station No.39 has come under serious attack and criticism by the learned counsel for the respondent. The learned counsel S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 98 has referred to the register (Ex.5) and submitted that as per the entry therein, the witness Rai Singh did cast the vote as one of the earliest voters as entry pertaining to him appears at serial number 2 of the register whereas the disputed entry pertaining to voter number 484 appears at serial number 327 in the register which is much later in time. The inconsistency as indicated by the learned counsel for the respondent is definitely available in the voters register (Ex.5) and Rai Singh appears to have cast his vote at the very opening of the polling but this inconsistency alone is not sufficient to discredit the witness altogether. The fact of the matter remains that there is entry at serial number 327 of the said register (Ex.5) which specifically makes out that the voter of serial number 484 did cast the vote. As already held, the voter at serial number 484 is none other but the wife of the respondent. It may be pointed out that by way of later part of evidence, it was sought to be suggested that Rai Singh did not remain seated inside the booth regularly. This Court is unable to find as to what the respondent seeks to project from such an assertion. In any case, this suggestion was never put to Rai Singh that he did not remain seated there regularly. Another incongruity of the respondent's case surfaces in an omission in cross-examination of Rai Singh. PW-3 Rai Singh specifically asserted that he was the Polling Agent of Congress Party (i.e., of the petitioner) and that Shri Surendra Singh was the BJP Polling Agent (i.e., of the respondent). This witness was never suggested that it was Lalu Ram (produced as DW-7) who was the Polling Agent for S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 99 the respondent sitting inside the said Polling Station No.39.
The respondent has produced some of the witnesses to suggest that his wife did not cast the vote at Polling Station No.39. One such witness is DW-5 Lalit Tiwari. He took part in the election as a candidate of Bahujan Samaj Party in the said election alongside the petitioner and respondent from Nathdwara Assembly Constituency. The sum and substance of his examination-in-chief is that on 04.12.2008, the date of polling, though he was moving around in different areas but was particularly concentrating on Polling Station No.39 and spent maximum time thereat. According to the witness, Shri Rai Singh was there at Station No.39 as Polling Agent of Congress Party and Shri Surendra Singh and Shri Lalu Ram Gameti were there as polling agents of Bhartiya Janata Party. The witness would say that he saw Rai Singh sitting there in his first visit at about 8:30 a.m. but on his second and third visit later in the day, did not find Rai Singh there. The witness has further stated that his subsequent visits were with a gap of about half an hour and one hour while he was regularly taking rounds. He saw Rai Singh firstly in the morning and then once in the afternoon and lastly in the evening. He saw Lalu Ram Gameti there twice or thrice. On the core aspect about wife of the respondent visiting Polling Station No.39, the witness answered that neither she appeared to cast her vote in his presence nor he came to know if she at all came to cast her vote. This part of the testimony of the witness reads as under:-
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 100 "Question: Did Kalpana Kanwar w/o Kalyan Singh Chouhan, the returned candidate visit Polling Station No.39 in your presence?
Answer: Neither she appeared to cast her vote in my presence nor I came to know if she at all came to cast her vote."
The witness in the beginning of his cross-examination has pointed out that he had completed his graduation and then LL.B. (previous) and was carrying on publication work since the year 1975 and was carrying on business at Noida. He has also stated that he was engaged in politics practically from his student life. The witness answered in cross-examination that he visited about 20 to 25 polling stations on 04.12.2008 and that he did not spend much time on all the polling stations located at a distance of about 2 to 3 kms. and mainly concentrated on the stations where he was expecting substantial number of votes. The witness was suggested that his name occurs at Polling Station No.41 Kothariya to which in the first place, he answered in the vague term but then, admitted that the entry at serial number 969 of Polling Station No.41 refers to himself. The witness was also posed the question about the number of votes received by him at different polling stations including 3 votes at Polling Station No.39 to which he answered that it was a matter different as to how many votes a candidate expects and how many he gets. Then, up-came the crucial aspect of the questioning about marked copy of electoral roll (Ex.3) and the entries at 483 and 484 whereby he was suggested that the marking show that such persons did cast their vote. The answer of the S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 101 witness had been that by looking at the document, he could not say as to what did it mean. The last part of his testimony reads as under:-
"The witness was shown page 23 of the marked copy of the electoral roll (Ex.3) contained in the envelop and was asked about the entries at S.No.483 and 484 that the markings therein show that such persons did cast their votes. The witness replied that by looking at this document, I cannot say as to what does it mean."
So far the witness DW-5 Lalit Tiwari is concerned, nothing much turns upon his testimony. He had admittedly not been available at Polling Station No.39 all through the day. He had been a candidate in the election as a Member of Bahujan Samaj Party. Such an answer by this witness who is fairly literate, knowledgeable and actively engaged in politics right from student life does not inspire confidence. The answer by this witness to the entries in the marked copy of electoral roll had only been of avoidance. On the whole, the testimony of this witness is of no assistance to the respondent.
The respondent has also examined as DW-7 Shri Lalu Ram who worked as Polling Agent at Polling Booth No.39 under the appointment letter (Ex.DW7/1). The witness has asserted that he reached the Polling Station at 7 O' clock in the morning and worked there until 5.00 p.m. The witness categorically asserted in his examination-in-chief that he knew the wife of the respondent; and that she did not come on the said Booth No.39 to cast her vote. The witness also asserted that Shri Rai Singh, the agent of the petitioner was going out of S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 102 the booth at some intervals and kept on coming and going but himself remained seated inside the booth throughout.
In the cross-examination, the witness has pointed out that he had studied upto 3rd standard and had been visiting the house of Kalyan Singh and had the occasions to meet his wife. The witness has pointed out that he was working in agriculture on contract basis with Shri Kalyan Singh. The witness has also pointed out that Surendra Singh was another polling agent of the respondent but he remained sitting outside the booth. The witness stated having come out of the booth only once for toilet purpose and else, having taken refreshment inside the booth. He has denied the suggestion of taking turns with Surendra Singh for sitting inside the booth and has also denied the suggestion that Rai Singh remained there at the booth all through. The witness stated that Rai Singh had the weakness for smoking and hence, was leaving the booth very often for the purpose of smoking. The witness has further stated the procedure adopted for a voter to cast the vote in the manner that the voter was given the entry on the basis of voter ID card, he would show the slip to the employee, who would put ink mark on the finger and then, permit the voter to go for casting the vote; that the official election party would keep on marking the voter list and that they would also obtain the signatures of the voters on the concerned register.
Thereafter, the witness stated having himself cast the vote at the same polling booth but would not remember his serial number in the voter list.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 103 Thereafter, the witness was shown the marked copy of the electoral roll (Ex.3) and entry number 483 therein. The witness pointed out that this entry related to the respondent. The witness was put to the suggestion that there was a mark on the concerned entry showing that the person has cast his vote to which, the witness in the first place answered in the negative. The witness was then shown entry number 156 at page 31 and admitted that the said entry related to himself. The witness was then suggested that red line drawn on the entry was indicative of his casting the vote to which, he answered in the affirmative. Then, entry number 483 was again shown to the witness with the suggestion that the red line drawn therein was indicative of Shri Kalyan Singh having cast the vote to which, the witness answered that Shri Kalyan Singh did come to cast his vote. Thereafter, the witness was shown entry number 484 and was suggested that similar red line has been drawn there which was indicative of the concerned person having cast the vote to which, the witness answered in affirmative. The witness denied the suggestion that wife of Shri Kalyan Singh was also known by the name Kalpana Singh. He further denied the suggestion that wife of Shri Kalyan Singh came to Booth No.39 and cast the vote thereat.
What the petitioner has been able to elicit from DW-7 Lalu Ram had been that the person at entry No.484 in the marked copy of electoral roll of Booth No.39 did cast the vote; and that entry No.483 relates to Shri Kalyan Singh who too cast his vote.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 104 The another witness produced by the respondent in assertion of the case that his wife did not cast the vote at Station No.39 has been DW-8 Bheem Singh Chouhan. This witness stated having reached Polling Station No.39 at about 8.30 in the morning after casting his vote at Kallakhedi and having remained there outside the booth for the purpose of issuing slips to the voters. The witness asserted that the petitioner's polling agent Rai Singh kept on moving in and out of the booth and did go to his house for taking meals. The witness further stated that the respondent Kalyan Singh came to cast his vote at about 9 - 9.15 a.m. and two sons of respondent and so also, his brother came there to cast their votes. The witness answered in the cross-examination that usually, before the day of polling, the number slips are distributed to the voters; and on the question that the voters already having the slips would not have visited the table outside the booth, he answered that usually true it was but a voter of the party concerned would normally meet the persons at the table before casting the vote. The witness has stated his acquaintance with the respondent since the days of schooling; and has given out the names of wives of the respondent and that the respondent has 4 sons and 2 daughters. He has given the name of elder son as Lokendra Singh and younger one as Deependra Singh and later on stated that Yogendra Singh is also known as Lokendra Singh; and he identified the names of Yogendra Singh appearing at serial number 485 and that of Deependra Singh at serial number 649. When posed S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 105 the question as to who of the two came first to cast the vote, the witness initially answered that he had not come after taking that much of training for answering and did not remember minute details but then, stated that both the brothers came together and he could not say as to who of them went inside first.
As regards the wife of the respondent, the witness has asserted that he was the person who got settled their marriage. The witness further stated that there were 2 agents of the party Lalu Ram and Surendra Singh at Station No.39; and that Lalu Ram alone sat inside the booth throughout the day, who might have come out once for toilet purpose. He has also stated that he was sitting about 200 meters away from the polling booth in an open area and might have left the table for a minute or so for toilet purpose. The witness has denied the suggestion that his statement about Rai Singh's leaving the booth was wrong and has maintained that Rai Singh did not remain inside the booth throughout. The witness has also declined the suggestion that Surendra Singh and Lalu Ram were taking turns for duty inside the booth and maintained that it was Lalu Ram who remained inside throughout. He has also denied the suggestion of having not visited Polling Booth No.39. The witness has asserted that the voters related with his party would come to the table and even otherwise, the table was so placed that the voters coming and going would be seen and that even if he would be in the process of drawing a slip, arrival or departure of any person would be in his knowledge.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 106 Thereafter, the witness was posed the question that in the year 2000 he got a ticket from BJP to contest against Kalyan Singh, the respondent, who was then the Congress candidate, to which the witness answered that he did not contest the election. The witness was shown the result-sheet (Ex.24) of the elections dated 08.02.2000 for Zila Parishad, Rajsamand and was suggested that he did contest the election and lost. The witness stated that there being the party symbol, he did get the votes but did not contest the election as such.
So far as the testimony of this witness DW-8 Bheem Singh is concerned, his credibility has been shaken in the last part of the cross-examination where he attempted to suggest that in the year 2000 he did get the ticket to contest against Kalyan Singh but did not contest. It is noticed from the document Ex.24 that he was a candidate in the election and lost. The witness tried to sidetrack the uncomfortable suggestion while stating that he did not contest the election but got the votes for the party symbol. The document Ex.24 shows that he was the candidate of Ward No.7 in Zila Parishad elections and got 3788 votes as against the 8406 polled by Kalyan Singh. It is difficult to swallow the cryptic suggestion that the witness got the vote only for party symbol but he did not contest.
Then, from his statement this much is clear that the respondent Kalyan Singh, his brother Prithvi Singh and so also, his 2 sons did cast their votes at Polling Station No.39. The presence of Shri Bheem Singh at Polling Station No.39 is S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 107 otherwise not evidenced by any documentary evidence and he appears more to be of a made-up witness whose own Polling Booth had been No.46 and he did cast vote thereat. His close proximity with the respondent and his wife is, of course, stated in the assertion that he was the person instrumental in settling the marriage relation of the respondent and his wife.
This much is apparent that the person at entry No.484 did cast her vote at Station No.39. As already held hereinabove that the person at 484 of Polling Station No.39 is none other but the wife of the respondent. In the face of the direct documentary evidence available on record that the person at 484 did cast the vote and in the face of the finding that it is none other but the wife of the respondent, the oral evidence of Shri Lalu Ram and Shri Bheem Singh can only be rejected on the point that she did not come to cast the vote.
The point No.5 as formulated stands answered against the respondent and it is held that his wife did cast her vote at Polling Station No.39 with reference to entry number 484.
In their cumulative effect, the findings on points Nos.2 to 5 hereinabove essentially conclude the entire issue No.1 in favour of the petitioner and against the respondent and it is required to be held that the wife of the respondent bears both the names Kalpana Kunwar and Kalpana Singh; that she signs in English as Kalpana Singh; that she was registered at two places namely, Part No.39 and Part No.40; that she did sign while voting at Station No.40; and that she did vote at Station No.39 too and thereby she indulged in double voting.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 108 Before closing the matter on issue No.1, a few other aspects, either kept pending or cropping during the course of submissions may be taken note of and may be disposed of. Interlocutory Applications-Other Objections-Misc. Matters:
After the conclusions which this Court has reached in the present case, the question as to whether the signatures as occurring in the referred Voters Register in Form No.17A i.e., Ex.2 and Ex.5 are of the wife of the respondent, need not detain the Court. It has been found in major point No.4 above that the respondent's wife did sign while voting at Station No.40; and it has also been found that she did vote at Station No.39. The petitioner had regularly made the prayer for comparison of signatures of the respondent's wife from the beginning and the applications made in that regard were kept pending. Even while approaching the close of cross- examination of the respondent's wife, the petitioner reiterated the prayer and sought summoning of her income-tax returns. In the opinion of this Court, all such prayers are now rendered unnecessary when the finding has, otherwise, been reached with analysis of the record that the respondent's wife did vote at both the places. The prayers for comparison of signatures or calling for hand-writing expert's report were for that purpose only. Therefore, no further orders are required on such applications and they shall stand disposed of with this judgment.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 109 The learned counsel for the respondent stressed on a submission that the petitioner had rather avoided enquiry into the comparison of signatures; and when the wife of the respondent was in the witness-box, the petitioner could have, but did not, ask for her signatures or handwriting for the purpose of comparison. This submission, again, does not yield anything to the respondent. The petitioner had regularly made the prayers for comparison of the signatures and even in the last, made a prayer for requisitioning the income-tax records where her admitted signatures would be available.
The aspect of the Court itself taking up comparison of the signatures with reference to Section 73 of the Evidence Act has also come up during the course of arguments and decisions have been cited by the learned counsel for the parties in that regard. It does not appear necessary to go into those questions in detail in the present case because this Court has otherwise arrived at the relevant finding of fact on the basis of the evidence on record and that concludes issue No.1. However, for observations, this much may be put on record that the signatures of voter number 727 in Ex.2 and those of voter number 484 in Ex.5 are carrying stark similarities. No further dilation on this aspect appears necessary for what has been discussed and found hereinbefore.
A proposition as put forward on behalf of the respondent after conclusion of the evidence also deserves to be disposed S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 110 of and it is related with the application IA No.19505/2011. The contents of this application have already been referred in the narrations hereinbefore. The petitioner has put this application to stiff opposition. The respondent has filed further documents in rejoinder to the reply to this application. It has been argued on behalf of the respondent that the Court should take judicial notice of such documents. This Court is unable to find any substance in such an application moved after closure of the evidence. By way of application and further by way of rejoinder, certain documents are sought to be made the part of record with the request to the Court to take judicial notice of the same. The documents are of the alleged educational certificates of the wife of the respondent and the particulars of distribution of photo identity cards. All these documents were never filed, whether with the reply or during the course of evidence. In the application, not even a word has been stated as to why and for what purpose these documents were being filed; and why the same were not filed earlier. The petitioner in his reply has referred to certain documents indicative that the document No.(ii) as proposed for judicial notice is rather of manipulation where 15 persons are said to have been distributed the cards although as per particulars from the Registration Office, only 14 cards were printed for the relevant place. Interestingly, in the proposed document No.(ii), the name at item No.14 is of Kalpana Singh and at item No.13 of Navala son of Pokhar with ID Card No.RJ/18/141/252687. The same particulars of Navala son of Pokhar are repeated at S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 111 item No.15 with the same ID Card No.RJ/18/141/252687. The document is prima facie a questionable one. The other documents, if at all they relate to the wife of the respondent, nothing prevented the respondent and his wife to procure and produce the same earlier. Be that as it may, nothing turns on these documents. Interestingly, the respondent has not made prayer for production of these documents on record, probably because any such prayer would have required him to state the reasons for not producing earlier.
Apart from the above, if at all the date of birth of the respondent's wife is sought to be asserted as 10.04.1962 on the basis of such educational certificates, the fact of the matter is that her admitted documents, i.e., PAN Card (Ex.D/12) and LIC Policy (Ex.D/15) state the date of birth as 12.12.1972. The application could only be considered as a last desperate attempt on the part of the respondent to somehow avoid decision of the material issues on evidence. The application (IA No.19505/2011) is required to be and is hereby rejected.
It may also be observed that during the course of testimony of the petitioner PW-1 C.P. Joshi, when he deposed about the signatures on the voters register (Ex.2 and Ex.5), the objections were raised and the same were deferred for decision at the final stage. So far these objections are concerned, they can only be ignored for the reason that his testimony on the aspect related with issue No.1 has been relevant to the extent he produced the concerned documents and stated his entertained belief on the basis of the facts S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 112 divulged by his agents; and else the relevant facts have come on record with the testimony of relevant witnesses. These objections are, therefore, ignored.
Similarly, an objection has been raised during the course of arguments that Subhash Choudhary,the agent of the petitioner at the time of counting has not been produced in evidence and an adverse inference is required to be drawn against the petitioner. In relation to the facts of the present case and the question arising for determination, it is difficult to appreciate as to what particular and material fact the petitioner withheld by not producing Subhash Choudhary. It remains a matter of fact that Subhash Choudhary made an application for re-counting and therein, nothing was stated about double voting by the respondent's wife or about tendered votes. In this regard it has already been held hereinbefore that not stating of such facts in the application is not fatal to this petition and in any case, does not infuse life into the void votes. This objection too has no bearing on the matters in issue and is ignored.
After having reached to the conclusion in issue No.1 that the wife of the respondent did cast the votes at both the places and thereby indulged in double voting and consequently, both the votes cast by her are required to be declared void; and looking to the margin of victory, the least possible minimum of one (01) vote, the election of the respondent is required to be declared void.
The petitioner has not prayed for the relief of declaration in his favour. Obviously, an order for re-count is required to be S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 113 made. It may be observed that the learned counsel for the parties have cited several decisions on the principles relating to the order for re-count. Those decisions do not appear requiring much detailed discussion for the reason that herein, the difference of votes had been only of one (01) vote and the finding that has been reached that the petitioner's wife did indulge in double voting, her votes are void and are required to be excluded. In relation to the two of the voters who voted by tendered ballots also, the case has been made out for inclusion of their tendered votes with exclusion of the non-genuine votes earlier cast in their names. The matter remains settled that an order of re-count is not to be readily passed at the mere asking. However, in the present case, for the findings which this Court has reached, a clear case for re-count is made out. Hence, the authorities cited by the learned counsel for the parties are not being discussed in detail.
Before closing down the matter on issue No.1, this Court is constrained to observe that the respondent and his wife had not been truthful and indulged in giving false evidence while making wrong assertions on material facts which were in their knowledge. They and such other persons who have been the party to such perjury before the Court deserve to be dealt with appropriately.
Before passing final orders, this Court cannot help placing on record its impressions that the respondent consciously chose to take the line of defence that his wife did not sign while voting at Polling Station No.40 and that she was S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 114 not registered at Polling Station No.39. As has been found, she was registered at both the places and voted at both the places. It appears that this particular line of defence was resorted to by the respondent for the material reason that the photograph of the voter at 484 of Station No.39 did not appear and further for the fact that videography was carried out at Station No.40. Voting by the respondent's wife at Booth No.40 was undeniable and had to be admitted. Thus, the story of her not signing was cooked up, which had no legs to stand. The respondent and his wife having conjured up such stories which were false to their knowledge, have obviously asked for consequences.
A particular fact has been indicated in this judgment hereinabove that there had been a remarkable shift in the stand of the respondent during the course of trial as regards tendered votes. In the first place, the case of the petitioner regarding tendered votes was put to strong opposition and even the pleadings were suggested as being frivolous and vexatious. At the later point of time, the respondent himself had been keen to get the tendered votes counted. Even in the last, the application came up for decoding of tendered votes. The conduct of the respondent had not been free from doubt and the record of the proceedings taken as a whole indicate that such shift in the stand qua tendered votes was itself to somehow avoid enquiry into the aspect related to double voting by his wife. As has been found, she did vote at two places and the story as suggested before the Court had been of utter falsehood. Obviously, the respondent and the related S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 115 witnesses are liable for the consequences.
Apart from the respondent and his wife, there is another person namely DW-6 Suresh Chandra Acharya who has boldly and specifically asserted that the respondent's wife did not sign while voting at Station No.40. This part of his testimony has been found to be wrong. This witness is also, in regard to this part of statement, had indulged in perjury and deserves to be dealt with accordingly.
There had been one more person who did not state all the facts correct. He is DW-7 Lalu Ram who asserted that the wife of the respondent did not come to Polling Booth No.39 to cast her vote. He was one of the polling agents at Booth No.39. This witness had, of course, answered in the affirmative about the voter at Entry No.484 of Station No.39 having voted as appearing from the marked copy of electoral roll but asserted that respondent's wife did not come to cast the vote at Station No.39. This witness is also required to be dealt with for perjury.
There had been two more witnesses whose statements too had been bordering on the periphery of falsehood namely, DW-5 Lalit Tiwari and DW-8 Bheem Singh Chauhan who attempted to assert that the wife of the respondent did not come to cast the vote at Booth No.39. However, specific presence of these witnesses all through the relevant time at Polling Station No.39 has been doubted and thus, as regards perjury, they are given benefit of doubt and are left at that only.
S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 116 However, so far the respondent Kalyan Singh Chouhan, respondent's wife Smt.Kalpana Kunwar alias Kalpana Singh (DW-9), Shri Suresh Chandra Acharya (DW-6) and Shri Lalu Ram Gameti (DW-7) are concerned, they are required to be dealt with for giving false evidence.
This Court is constrained to observe that the matter relates to purity of elections which are held to represent the will of the people. Falsehood is an anathema to the entire adjudicatory process and so also to the election process. In the given set of circumstances, this Court is, per force, required to direct that appropriate proceedings for prosecution of the persons found indulging in perjury ought to be adopted. Relief and directions:
For the conclusions which this Court has reached, this election petition is required to be, and is hereby, allowed in the following manner:-
(1) As it is held that Smt. Kalpana Kunwar, also known as Smt. Kalpana Singh, the wife of the respondent, did cast two votes at Polling Stations Nos.39 and 40 at serial numbers 484 and 727 respectively of the electoral roll of Nathdwara Legislative Assembly Constituency No.176, both the votes cast by her are ordered to be decoded and excluded from the valid votes.
(2) In view of the finding on issue No. 2, it is held that the votes cast at Polling Stations Nos. 27 and 61 initially through S.B. Election Petition No. 1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan 117 Electronic Voting Machines in the name of voters at serial numbers 311 and 1122 respectively, of the Electoral Roll of Nathdwara Legislative Assembly Constituency No.176 were not cast by genuine voters; and these votes are ordered to be excluded by way of decoding and the tendered ballot papers cast by the genuine voters against these serial numbers are ordered to be opened and counted.
(3) The election of the respondent Shri Kalyan Singh Chouhan from Nathdwara Legislative Assembly Constituency No.176 is declared void.
(4) The petitioner is held entitled to the costs of the election petition quantified at Rs.51,000/- [fifty one thousand] payable by the respondent.
(5) In the circumstances of the case and for the observations above, the Registrar General is directed to take steps for lodging of appropriate criminal case against the respondent Kalyan Singh Chouhan, the respondent's wife Smt.Kalpana Kunwar alias Kalpana Singh (DW-9), Shri Suresh Chandra Acharya (DW-6) and Shri Lalu Ram Gameti (DW-7).
(DINESH MAHESHWARI),J.
MK/cp goyal /Mohan/ S/1 S.B. Election Petition No.1/2009 C.P. Joshi Vs. Kalyan Singh Chouhan DATE OF ORDER: 31st August 2012.
HON'BLE MR. JUSTICE DINESH MAHESHWARI <><><> Judgment pronounced today.
The Election Petition is allowed with the following reliefs and directions:
"(1) As it is held that Smt. Kalpana Kunwar, also known as Smt. Kalpana Singh, the wife of the respondent, did cast two votes at Polling Stations Nos.39 and 40 at serial numbers 484 and 727 respectively of the electoral roll of Nathdwara Legislative Assembly Constituency No.176, both the votes cast by her are ordered to be decoded and excluded from the valid votes.
(2) In view of the finding on issue No. 2, it is held that the votes cast at Polling Stations Nos. 27 and 61 initially through Electronic Voting Machines in the name of voters at serial numbers 311 and 1122 respectively, of the Electoral Roll of Nathdwara Legislative Assembly Constituency No.176 were not cast by genuine voters; and these votes are ordered to be excluded by way of decoding and the tendered ballot papers cast by the genuine voters against these serial numbers are ordered to be opened and counted.
(3) The election of the respondent Shri Kalyan Singh Chouhan from Nathdwara Legislative Assembly Constituency No.176 is declared void.
(4) The petitioner is held entitled to the costs of the election petition quantified at Rs.51,000/- [fifty one thousand] payable by the respondent.-2-
(5) In the circumstances of the case and for the observations above, the Registrar General is directed to take steps for lodging of appropriate criminal case against the respondent Kalyan Singh Chouhan, the respondent's wife Smt.Kalpana Kunwar alias Kalpana Singh (DW-9), Shri Suresh Chandra Acharya (DW-6) and Shri Lalu Ram Gameti (DW-7)."
Having regard to the circumstances of the case and the implication of the judgment and order as passed by the Court today, it appears in the interest of justice that the operation and effect of this judgment be kept in abeyance for a period of 30 days from today. Ordered accordingly.
Office to take the requisite steps.
(DINESH MAHESHWARI), J.
cpgoyal/-