Gauhati High Court
Borgaram Deuri vs Premodhar Bora And Ors. on 19 December, 2002
Equivalent citations: AIR2003GAU135, AIR 2003 GAUHATI 135, (2003) 1 GAU LT 541
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
ORDER Ranjan Gogoi, J.
1. The election of the respondent No. 1 to the Legislative Assembly of the State of Assam from the No. 109 Bihpuria Legislative Assembly Constituency in the election held on 10-5-2001 has been called into question by means of the present election petition. The notification calling upon the electors of all the Assembly Constituencies of the State including the No. 109 Bihpuria Legislative Constituency was issued on 16-4-2001 pursuant whereto as many as 9 (nine) candidates including the election petitioner and the respondent No. 1 filed their nominations from the constituency in question. The poll was held on 10-5-2001 and the counting of votes commenced from 13-5-2001. At the end of the counting, the petitioner having secured 1272 votes less than the respondent No. 1, the Returning Officer declared the respondent No. 1 to be duly elected from the said constituency. Aggrieved, the instant election petition has been filed.
2. The case of the election petitioner as unfolded by the pleadings on record would go to show that the election of the returned candidate has been challenged on a number of grounds. The commission of corrupt practice under Section 123 (3) and (3A) of the Representation of the People Act, 1951 by the returned candidate as well as his agents with the knowledge and consent of the returned candidate has been alleged by the election petitioner. The commission of corrupt practice of bribery within the meaning of Section 123(1) of the Act by the respondent No. 2, another candidate in the fray, as well as the commission of corrupt practice of Booth Capturing within the meaning of Section 123(8) of the Act has also been alleged. Anomalies in the counting of votes resulting in improper reception of votes in favour of the returned candidate thereby materially affecting the result of the election is another ground of challenge in the present election petition.
Coming to the specific pleadings advanced by the election petitioner, it is noticed that in so far as the commission of corrupt practice under Section 123 (3) and (3A) of the Act is concerned, three specific instances have been cited in the election petition. In a meeting held on 25-4-2001 at the Rang-Manch at Santapur Panch-Ali, the election petitioner as also two of his agents Sri Monoranjan Sarma and Sri Ghana Kanta Baruah, are alleged to have delivered speeches urging the voters not to vote for the election petitioner and the other tribal candidates and instead, to vote for the returned candidate on the ground that as the constituency had been represented on two earlier occasions by tribal candidates :f a tribal candidate is to be returned once again, the constituency will become a tribal/reserved constituency and the general category people would come under the subjugation of the tribals. The two agents of the returned candidate i.e. Sri Monoranjan Sarma and Sri Ghana Kanta Baruah are alleged to be the office bearers of an organisation called "Sadharan Jati Bikash Parishad", which was dedicated to the anti-tribal cause. The said organisation represented by the said two agents as aforesaid, openly declared its support for the returned candidate. Similar speeches urging the voters not to vote for the election petitioner and other tribal candidate were alleged to have been made by the election petitioner along with the aforesaid two agents in a meeting held at Raidangia Namghar on 1-5-2001 at about 1.00 p.m. as well as in a meeting held in the bazar area of the Bihpuria town on 7-5-2001.
In the election petition, it is further alleged and pleaded that Yarn and Spray Machines were distributed by the agents and workers of the respondent No. 2 who was sponsored in the election by the Asom Gana Parishad so as to induce the voters to vote for the Asom Gana Parishad. It is further alleged that on 10-5-2001 at about 10.30 a.m., one Jagannath Doley, a leader of the Asom Gana Parishad, assaulted and intimidated the voters who had assembled in front of Polling Station No. 87 (Dikrongmukh L.P. School) to cast their votes as a result of which assault and intimidation, one Bapuram Tayeng, a Congress worker, was seriously injured and the said person along with many others could not cast their votes. The commission of corrupt practice within the meaning of Section 123(8) of the Act has been pleaded on the aforesaid basis.
The election petitioner has further pleaded that on the date of counting of votes i.e. 13-5-2001, large scale anomalies had taken place as a result of which many ballot papers marked in favour of the election petitioner, were counted in favour of the returned candidate. Complaints were lodged in this regard before the Returning Officer which were enclosed to the election petition and subsequently, exhibited in the course of the trial of the case as Ext. P/4 and Ext.P/5.
3. The respondent No. 1 i.e. the returned candidate has contested the claims made in the election petition by filing a written statement. According to the respondent No. 1, the allegations made in the election petition are false and incorrect and none of the incidents as alleged, had occurred. The returned candidate, therefore, contended that his election is valid and no declaration to the effect that the said election is void, as prayed for, is liable to be issued by this Court.
The respondent No. 2 in spite of receipt of notice has chosen not to contest the proceedings.
4. On the basis of the rival pleadings of the parties, as many as 8 (eight) issues were framed for trial in the case. The issues as framed, may be conveniently extracted hereinbelow :--
1) Whether the respondent No. 1 Shri Premodhar Bora committed corrupt practice within the meaning of Section 123(3) and Section 123(3A) of the Representation of People Act, 1951. On 25-4-2001 while delivering a speech at Santhapur, Bhipuria by appealing to the voters to vote for him and to refrain from voting for the petitioner On the ground that he (petitioner) belongs to Scheduled Tribe Community and shouted a Slogan "Bhipuria Baso"?
2) Whether Shri Jogen Sarma has committed the corrupt practice within the meaning of Section 123(1) of the Act with the consent of respondent No. 2 by distributing yarn to the voters on 29-4-2001 at Gonakdalani?
3) Whether any meeting was held at Raidangia Namghar at about 1.00 p.m. of 1-5-2001, and if so, whether respondent No. 1 and Shri Monoranjan Sarma and Shri Ghanakanta Baruah committed corrupt practice by appealing to the voters to vote for respondent No. 1 and to refrain from voting for the petitioner on the ground that he belongs to Scheduled Tribe Community?
4) Whether on 7-5-2001 at a meeting in a market house in Bihpuria Town, respondent No. 1 appealed to the voters present there to vote for him and to refrain from voting in favour of the petitioner on the ground that the petitioner belongs to S. T. Community and if he is elected again the said constituency will be reserved for S. T. Community ?
5) Whether on 9-5-2001 at about 8 p.m. at Narayanpur under Bhipuria Police Station Sri Jagannath Doley distributed spray machines to voters with the consent of respondent No. 2 and induced the voters to vote for respondent No. 2 ?
6) Whether the petitioner is entitled to a direction for a recount of votes of 109, Bihpuria L.A. Constituency on the basis of the complaints filed by him before the Returning Officer.
7) Whether the election of the respondent No. 1 is liable to be declared void and whether the petitioner is entitled to any other reliefs ?
8) Whether on the day of polling i.e. on 10-5-2001 at about 10.30 a.m. Shri Jagannath Doley and AGP Veteran worker assaulted and intimidated the voters of Congress(I) causing grievous hurt and dislocation of the left armjoint of Shri Bapuram Tayung a Congress supporter while he had gone to cast his vote at Tikirai in the Polling Station No. 87 of Dikrongmukh L.P. School. Whether due to the above violent action the Congress(I) voters refrained from casting their votes in the aforesaid polling station ?
5. The election petitioner has examined as many as 17 witnesses in support of the pleaded case whereas the returned candidate has examined 10 witnesses. A fairly large number of documents were proved and exhibited by both the parties.
6. Before adverting to a consideration of the evidence and materials on record for determination of the issues framed in the case, as the primary ground of challenge of the election petitioner is one relating to commission of corrupt practice by the returned candidate, it may be apposite to briefly recapitulate the principles of law relating to burden of proof and the yardstick that has to be adopted by the Court in determining a charge of corrupt practice. The principles having been succintly stated by this Court in the case of Sri Mazibur Rahman v. Sri Khonehedur Rahman Khan, reported in (1986) 1 Gauhati LR 209, and the same may be usefully reproduced hereinbelow :--
"(1) Allegation of corrupt practice is quasi-criminal in nature, or is substantially akin to criminal charges, because it not only vitiates the election but also disqualifies the person concerned from taking part in it for a considerable long time or may extinguish the man's public life. Razik Ram v. J. S. Chouhan, AIR 1975 SC 667; D. Venkata Reddy v. R. Sultan, AIR 1976 SC 1599; Amolak Chand v. Bhagwandas, AIR 1977 SC 813.
(2) So a grave and heavy onus rests on the accuser to establish it by clear, cogent and reliable evidence beyond reasonable doubt. It cannot be established by a mere balance of probabilities. Razik Ram (supra); Nizamuddin v. Narbada Prasad, AIR 1975 SC 1909; M. Narayana Rao v. G. Venkata Reddy, AIR 1977 SC 208; K. M. Mani v. P. J. Antony, AIR 1979 SC 234; N. C. Zeliang v. Aju Newmai, AIR 1981 SC 8 and R. B. Singh v. R. B. Jha, AIR 1976 SC 2573". To this, I would add not, that the corrupt practice has to be proved to the hilt by the election petitioner the standard of proof of such an allegation being the same as a charge of fraud in a criminal case, as stated in Sultan Salahuddinv. Mohd. Osmani, (1980) 3 SCC 281 ; (AIR 1980 SC 1347).
(3) Two corollories follow from this : First, even strong suspicion would not be sufficient a la Narendra v. Manikrao, AIR 1977 SC 2171 (para 11); and secondly, benefit of doubt belongs to the returned candidate, vide, Abdul Hussain Mir v. Shamsul Huda, (1975) 4 SCC 533 : (AIR 1975 SC 1612) (para 5).
(4) There is, however, one difference between a criminal action and an election petition. The same is that the election trial does not give liberty to the other side to keep mum, and the charge has to be examined on appraisal of the evidence adduced by both the sides. M. Narayana (supra) and M. Chenna Reddy v. V. R. Rao, (1968) 40 ELR 390 (SC).
(5) Oral evidence has to be judged with greatest care as very often the evidence is of partisan witnesses like workers, agents, supporters and friends who have to be regarded as highly interested. So corrobora-tion from independent source, unlying circumstances, or contemporaneous and unimpeachable documents is sought for as a matter of prudence to lend assurance to the verbal testimony. D. Venkata Reddy (supra), Kanhaiyalal v. Mannalal, AIR 1976 SC 1886; Rahim Khan v. Khursid Ahmed, AIR 1975 SC 290 and Lakshmi Raman v. Chandan Singh, AIR 1977 SC 587.
(6) Mere consistency in the evidence may not weigh, as tutored witnesses are capable of being consistent. So, if the evidence is fraught with inherent improbabilities and replete with unnatural tendencies. Court may reject the same. D. Venkata Reddy (supra)."
7. In so far as the proposition No. 4 laid down by this Court in the case of Mazibur Rahman (1986 (1) Gauhati LR 209) (supra) is concerned, the same may be understood to have been further magnified by the Apex Court in its judgment in the case of Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, reported in AIR 1995 SC 2284 and the following passage from the judgment of the Apex Court would sum up the present position in so far as the proposition No. 4 laid down by this Court in the case of Mazibur Rahman (supra) is concerned.
"The evidence led in support of the corrupt practice must therefore, not only be cogent and definite but if the election petitioner has to succeed, he must establish definitely and to the satisfaction of the Court the charge of corrupt practice which he levels against the returned candidate. The onus lies heavily on the election petitioner to establish the charge of corrupt practice and in case of doubt the benefit goes to the returned candidate. In the case of an election petition, based on allegations of commission of corrupt practice, the standard of proof is generally speaking that of criminal trials, which requires strict proof of the charge beyond a reasonable doubt and the burden of proof is on the petitioner and that burden does not shift. (See with advantage : Nihal Singh v. Rao Birendra Singh, (1970) 3 SCC 239; Om Prabha Jain v. Charan Das, 1975 (Supp) SCR 107 : AIR 1975 SC 1417; Daulat Ram Chauhan v. Anand Sharma, (1984) 2 SCR 419 : AIR 1984 SC 621 and Quamarul Islam v. S. K. Kanta, 1984 Supp (3) SCC 5; 1994 AIR SCW 1598 : (AIR 1994 SC 1733).
14. By this proposition, however, we should not be understood to mean or imply that the returned candidate is absolved from his liability to bring forth evidence on the record to rebut the case of the petitioner and to particularly prove such facts which are within his special knowledge (S. 106, Evidence Act). Though, the nature of allegations in cases alleging corrupt practices are quasi-criminal and the burden is heavy on him who assails an election but unlike in a criminal trial, where an accused has the liberty to keep silent, during the trial of an election petition the returned candidate has to place before the Court his version and to satisfy the Court that he had not committed the corrupt practice as alleged in the petition and wherever necessary by adducing evidence besides giving his sworn testimony denying the allegations. However, this stage reaches if and when the election petitioner leads cogent and reliable evidence to prove the charges levelled against the returned candidate as, only then, can it be said that the former has discharged his burden. That necessarily means, that if the election petitioner fails to adduce such evidence which may persuade the court to draw a presumption in his favour the returned candidate will not be required to discharge his burden by adducing evidence in rebuttal. While on this point it will be also pertinent to mention that the election petitioner has to establish the charge by proof beyond reasonable doubt and not merely by preponderance of probabilities as in civil action."
ISSUE No. 1 :--
This issue pertains to the alleged speeches made by the election petitioner and his agents Shri Monoranjan Sarma and Sri Ghana Kanta Baruah in the meeting held at Santapur Rang Manch on 25-4-2001.
The allegations of the election petitioner, if proved to be correct, would indeed attract the provisions of Section 123(3) and (3A) of the Act. The evidence, therefore, will have to be scrutinised by this Court. The election petitioner has examined himself, his election agent Sri Lakhi Kanta Hazarika as P.W.2 and another worker and supporter, Shri Giridhar Gohain, as P.W.3 in support of the said allegations. The evidence of the aforesaid P.Ws. have a common thread. All the three persons were returning on the said date i.e. on 25-4-2001 to Bihpuria in a vehicle and while crossing Santapur Panch-Ali, they saw a crowd gathered in a meeting. They stopped the vehicle and after alighting from the same, they went closer to hear what was being addressed in the meeting. They found the election petitioner and his two agents, Sri Monoranjan Sarma and Sri Ghana Kanta Baruah delivering the allegedly incriminating speeches. To disprove the said allegations, the returned candidate has examined himself and 5 (five) other witnesses i.e. R.W.2 Abdul Hussain, R.W.3 Sri Kanta Lahan, R.W.4 Sri Dharmeswar Saikia, R.W.6 Sri Chinadhar Dauri and R.W.7 Sri Monoranjan Sarma. According to the witnesses examined on behalf of the returned candidate, while a meeting was held in Santapur Rang Manch on 25-4-2001, in the said meeting only the returned candidate was present who had requested the voters to vote for him so as to enable him to serve the constituency. Neither Sri Monoranjan Sarma nor Sri Ghana Kanta Baruah were present and no such speech/speeches, as alleged, were delivered in the said meeting.
The arguments advanced on behalf of the election petitioner in so far as the present issue is concerned, is that though in the pleadings of the election petitioner it has been specifically averred that the two agents of the election petitioner-Sri Monoranjan Sarma and Sri Ghana Kanta Baruah were present in the meeting held at Santapur Rang Manch on 25-4-2001 and had delivered anti-tribal speeches urging the voters not to vote for the tribal candidates and to save the constituency from being turned into a tribal constituency, what has been denied is that no such speech, as alleged, were made. The presence of the aforesaid two agents at the venue of the meeting is not denied. Learned counsel Mr. D. K. Bhattacharjee, therefore, argues that the denial not being specific, the fact that the aforesaid two agents were present in the venue of the meeting must, therefore, be taken to have been admitted. The argument is sought to be negatived by Mr. J. M. Choudhury, learned counsel appearing on behalf of the returned candidate by contending that on the ratio of law laid down by the Apex Court in the case of Dr. Jagjit Singh v. Giani Kartar Singh, reported in AIR 1966 SC 733, it has been held that mere absence of specific denials would not be conclusive proof of the charge of corrupt practice which has to be proved by the election petitioner beyond all reasonable doubt by tendering cogent and reliable evidence.
The oral evidence tendered by the election petitioner is contended to be unworthy of credit on the ground that in cross-examination of the petitioner's witnesses, all of them have admitted that though they were residents of the locality and had been present at the venue of the meeting for 15/ 20 minutes, they could not recognise any of the persons present in the meeting. This is contended to be unnatural and the explanation offered by the said witnesses that no such recognition could be made as the audience was sitting facing the stage and only their backs were visible, is not at all convincing. The witnesses examined on behalf of the petitioner are also attacked as being partisan witnesses and fault has sought to be found on the ground that no independent witness from the village has been examined by the election petitioner.
Coming to the evidence tendered by the respondents' witnesses, the learned counsel for the election petitioner contends that no reliance ought to be placed on the said witnesses as they are not only interested witnesses but there are serious exaggerations, embellishments and contradictions in the evidence tendered by the said witnesses of the returned candidate. D.W. 1 in his deposition as well as in the cross-examination has shown an unnatural tendency to suppress the fact that Sri Monoranjan Sarma and Sri Ghana Kanta Baruah were known to him. The aforesaid two persons who acted as the counting agents of the returned candidate are stated by the returned candidate, in his evidence, to have been so appointed without his knowledge. In fact, the returned candidate disclaims any knowledge that the said two persons had worked as his counting agents though in his evidence, he has admitted that he had seen the two persons in the counting hall. The evidence of R.W. 2 ought to be discarded as the questions put to him in his examination-in-chief are leading questions. The evidence of R.W. 3 is exaggerated as he had stated that in the meeting held at Santapur Rang Manch over 1500 persons were present. The evidence of R.Ws. 4 and 6 are contended to be unworthy of credit on similar ground. Coming to the evidence of R.W. 7 Sri Monoranjan Sarma, it is contended on behalf of the election petitioner that he is an interested witness as his father was a student of the respondent No. 1. The witness has given evasive answers to the questions put to him with regard to his role as an office-bearer of the Sadharan Jati Bikash Parishad. The veracity of the evidence tendered by R.W. 7 is also sought to be attacked on the ground that the organisation of which he was an office bearer, is dedicated to the anti-tribal cause and the said organisation had openly declared support for the returned candidate. R.W. 7 is, therefore, not a truthful witness, it is argued.
8. An analysis of the evidence and counter evidence adduced by the parties in so far as the meeting held at Santapur Rang Manch on 25-4-2001 and the alleged speeches made therein, are concerned, reveals that the evidence of both sides are replete with inconsistencies and improbabilities. Certain unnatural aspects are noticeable in the evidence adduced by the both sides. There is nothing on record to make one version inherently improbable and the other version eminently acceptable. The witnesses examined by both sides are also partisan in character and no independent witness has been examined by either party. Keeping in mind, the principles laid down in an earlier part of the judgment for determining the correctness of a charge of commission of corrupt practice by the returned candidate in an election and having regard to the fact that such charge must be proved beyond all reasonable doubt, I am of the considered view that the evidence on record being what it is, the first issue must be answered in the negative and against the election petitioner.
9. Before proceeding to decide the other issues, one aspect of the argument advanced on behalf of the election petitioner must be dealt with at this stage.
Learned counsel for the election petitioner has consistently attacked the admissibility of the evidence tendered by the witnesses of the returned candidate on the ground that such evidence would not be admissible as the same have been obtained by means of questions which would partake the character of "leading questions." In the examination of the witnesses of the returned candidate what has been done is that the statements made by the election petitioner and his witnesses in the course of their depositions in Court, in support of the allegations made in the election petition, had been put to the said witnesses and thereafter, the witnesses had been asked whether the said statements are correct and/or otherwise. The answers coming in the negative from the witnesses of the returned candidate have been recorded 'under objection.' It is the contention of the learned counsel for the election petitioner that the questions put to the witnesses of the returned candidate are leading questions and the answers given by the witnesses to such questions would therefore not be admissible in evidence. Therefore, all of such evidence must be excluded. I have noticed the questions put to the witnesses of the returned candidate in their examination-in-chief and the answers given by them to the said questions. The witnesses examined on behalf of the returned candidate were at liberty to narrate the events as they had happened. The questions put to the said witnesses do not contain any inbuilt answer. The objections raised on behalf of the election petitioner on this score must, therefore, be overruled and this Court must proceed to scrutinise the intrinsic worth of the evidence adduced by the witnesses examined on behalf of the returned candidate.
ISSUE NO. 3 :--
This issue pertains to the alleged meeting held at Raidangia Namghar at about 1.00 p.m. of 1-5-2001 and the speeches alleged to have been made therein by the election petitioner and his two agents Sri Monoranjan Sarma and Sri Ghana Kanta Baruah.
The witnesses examined by the election petitioner on this issue are P.W. 3 Sri Giridhar Gohain, P.W. 4 Sri Kushal Baruah, P.W. 5 Sri Dibyojyoti Bhuyan and P.W. 6 Sri Putul Bhuyan whereas the witnesses examined on behalf of the returned candidate are the returned candidate himself (R.W. 1), R.W. 5 Sri Tulsi Rajkhowa, R.W. 7 Sri Monoranjan Sarma and P.W. 8 Sri Bhupen Sarma.
P.W. 3, Giridhar Gohain in his deposition has stated that one day while moving around in a Tata Sumo vehicle in connection with election works he along with Padumi Deori, the wife of the election petitioner had to stop in front of the Raidangia Namghar due to obstruction on the road. He could see a meeting being held in the Namghar and the returned candidate addressing the said meeting. According to this witness, the returned candidate was appealing to the persons present not to vote for any of the tribal candidates and instead to vote for him in order to make the general category people free from tribal control. Sri Monoranjan Sarma and Sri Ghana Kanta Baruah were also present in the said (sic).
P.W. 4 Sri Kushal Baruah is a resident of Raidangia village and he has deposed that a meeting was held at Raidangia Namghar on the said date i.e. on 1-5-2001 wherein the returned candidate had addressed the gathering by making an appeal to the voters not to vote for tribal candidates in order to save the constituency from becoming a tribal constituency. According to this witness, an announcement regarding the meeting to be held at Namghar on 1-5-2001 was made on the previous day. In cross-examination, this witness stated that many persons were present in the meeting. He could name one Sri Dibyojyoti Bhuyan (P.W. 5), Sri Putul Bhuyan (P.W. 6) and one Sri Thaneswar Koch. Though he is a resident of Raidangia village, he could not name any of the persons of the village who were present in the meeting as he could not recollect such names. This witness has admitted that both P.W. 5 and P.W. 6 who were present in the meeting were residents of another village. According to this witness, only the returned candidate spoke in the meeting. P.W. 5 was a chance witness as he was proceeding through Raidangia village to an-other village. According to this witness, as the meeting was held in the Namghar, he happened to stop by and notice the election petitioner and his two agents Sri Monoranjan Sarma and Sri Ghana Kanta Baruah delivering the speeches in question. In cross-examination, the witness stated that he is related to the election petitioner.
P.W. 6 in his deposition has claimed to have attended the meeting held at Raidangia Namghar in which meeting, the returned candidate and Sri Monoranjan Sarma and Sri Ghana Kanta Baruah had made speeches asking the voters not to vote for the election petitioner or any tribal candidate in order to save the constituency from becoming a tribal constituency. According to this witness, the aforesaid two persons Sri Monoranjan Sarma and Sri Ghana Kanta Baruah were the office-bearers of the Sadharan Jati Bikash Parishad which organisation had been formed to work against the tribal interest. In the said meeting, slogans like "Bihpuria Basao," "do not vote for tribal candidate" were raised by the returned candidate.
The returned candidate in his deposition has stated that during the election time, no meeting was held by him in any of the Namghars of the Raidangia village. Similar is the evidence of the other witnesses examined on behalf of the returned candidate.
Mr. D. K. Bhattacharjee, learned counsel appearing for the election petitioner in the course of his arguments, has submitted that there is nothing unnatural in the evidence of the witnesses examined on behalf of the election petitioner which would make their evidence unworthy of credit. The witnesses also do not stand discredited in cross-examination. On the other hand, the stand taken by the returned candidate that no meeting at all was held in any of the Namghars in the Raidangia village during the election time is a wholly unnatural and improbable story which ought not to be believed. The evidence of R.W. 8, the election agent, it is contended, is equally unnatural, He being the election agent of the returned candidate and a local man, by disclaiming any knowledge of the distance between Raidangia village and Santapur Panch Ali, has shown a tendency to shy away from Raidangia village. The evidence of the witnesses of the returned candidate, therefore, according to the learned counsel, ought to be disbelieved.
The arguments advanced on behalf of the election petitioner have been sought to be countered by the learned counsel appearing on behalf of the returned candidate by contending that there is nothing unnatural in the version of the returned candidate that no meeting was held in any of the Namghars in the Raidangia village during the election time. Learned counsel has pointed out that one Imran Hussain, who according to the witnesses of the election petitioner had also addressed the meeting at Raidangia Namghar was a listed witness of the election petitioner but the said witness was not examined. That apart, the witnesses examined on behalf of the election petitioner have only named each other as the persons present in the meeting allegedly held in the Namghar and two of such witnesses examined by the election petitioner are residents of another village.
10. The arguments and counter arguments advanced on behalf of the rival parties have been duly considered. Once again, the ultimate picture that emerges from an analysis of the evidence on record is a case of affirmation by one side of an event having taken place and denial of such event by the other side. There is nothing in the evidence of the witnesses examined by either side which would make one story wholly acceptable and the other inherently incredible. The charge being one of the commission of corrupt practice and the standard of proof required to establish such charge being proof beyond reasonable doubt, on the state of the evidence on record, the charge brought has to fall. This issue, therefore, is decided against the election petitioner.
ISSUE NO. 4 :--
This issue pertains to the meeting held at Bihpuria bazar on 7-5-2001 and the alleged speeches made therein by the returned candidate and his two agents Sri Monoranjan Sarma and Sri Ghana Kanta Baruah.
The witnesses examined by the election petitioner on this issue are P.W. 7 Salla-Ud-Din Ahmed and P.W. 8 Amir-Ud-Din Ahmed.
P.W. 7 Salla-Ud-Din Ahmed has deposed that one day, while he was going to the market, he found a meeting being held in the open space in the market area, P.W. 8 Amir-Ud-Din Ahmed was with him. Both of them, in fact, were out for marketing. According to this witness, the election petitioner and thereafter Sri Ghana Kanta Baruah addressed the meeting and made speeches to the effect that the voters must not vote for the tribal candidates in order to save the constituency from becoming a tribal constituency and they should vote for the returned candidate. P.W. 8 has corroborated the evidence of P.W, 7 and in addition, he has stated that Sri Monoranjan Sarma as well as one Imran Hussain were also present in the meeting. He, however, could not name any person present in the meeting unlike P.W. 7 who had named 3 persons to be present in the said meeting. This witness, in cross-examination, has admitted that he is the General Secretary of the District Congress. Both P.W. 7 and P.W. 8 in their cross-examination stated that they have not informed anybody about the said meeting.
On this issue, the returned candidate has examined R.W. 9 Imran Hussain and R.W. 10 Sri Dimbeswar Sonowal who claim to have been present in the said meeting. The aforesaid witnesses have deposed that no such speeches as alleged, were made by the election petitioner and further that Sri Monoranjan Sarma and Sri Ghana Kanta Baruah were not present in the said meeting.
11. While the witnesses examined on behalf of the election petitioner are contended to be partisan and, therefore, unworthy of credit, the evidence tendered by the said witnesses have also been challenged as unnatural, P.W. 8 is the General Secretary of the District Congress and P,W. 7 is admittedly his constant companion. Both the witnesses did not report to anybody about the meeting held at Bihpuria bazar and incriminating speeches made therein.
Their evidence, therefore, is unworthy of credit and no reliance ought to be placed on the same, it is contended on behalf of the returned candidate.
In so far as the witnesses examined on behalf of the returned candidate are concerned, the learned counsel for the election petitioner contends that the said witnesses not being named in the list of witnesses filed by the returned candidate and that too, belatedly i.e. on 25-10-2001, after closure of evidence of the election petitioner, no reliance should be placed on the testimony of R.W. 9 and R.W. 10. The said witnesses have come to depose in Court on their own which makes them highly interested, it is argued. That apart, the reasons cited by the returned candidate, in his application for leave to examine P.W. 9 and P.W. 10 i.e. their names could not be mentioned in the list of witnesses filed earlier due to inadvertence is incorrect inasmuch as the two witnesses have deposed that they had informed the returned candidate of their knowledge as to what had transpired in the meeting held at Bihpuria bazar only about a week prior to the date of their deposition. If the evidence of R.W. 9 are discarded, the evidence of the election petitioner with regard to the meeting held at Bihpuria bazar and speeches delivered therein stand unrebutted, contends the learned counsel for the election petitioner.
12. The submissions advanced by the respective counsels have been duly considered. This Court by order dated 13-11-2002 passed in Misc. Case No. 70 of 2002 has already decided the objections raised by the election petitioner with regard to the examination of R.W. 9 and R.W. 10. What this Court, therefore, has now to consider is the intrinsic worth of the evidence tendered by the said witnesses. The picture that emerges from a detailed consideration of the evidence tendered by both sides on this issue is again the same. There is an affirmation by the election petitioner and a denial by the returned candidate. There is nothing on record that makes one version wholly acceptable and the other totally unacceptable. In such a situation, following the decision rendered on Issue No. 1 and Issue No. 3, this issue also has to be decided against the election petitioner.
13. Before proceeding to deciding the other issues, two subsidiary issues which appears to have crept up from the evidence and materials tendered by the parties with regard to Issues Nos. 1, '3 and 4 has to be answered. The first of the aforesaid two subsidiary issues is whether the performance of duties of an election agent by Sri Monoranjan Sarma and Sri Ghana Kanta Baruah who have been proved to be teachers of a provincialised school would vitiate the election of the returned candidate. The second question is whether the Sadharan Jati Bikash Parishad of which Sri Monoranjan Sarma and Sri Ghana Kanta Baruah have been proved to be the officebearers is an anti-tribal organisation and the support of the said organisation to the candidature of the returned candidate would have any effect on the election of the returned candidate.
Coming to the first of the aforesaid two subsidiary questions what this Court has noticed is that though Sri Monoranjan Sarma and Sri Ghana Kanta Baruah have been proved to be teachers of a Govt. provincialised school, their role as counting agents of the returned candidate would not attract the provisions of Section 123(7) of the Act, firstly, because the said two persons do not belong to any of the categories of Government servants mentioned in Section 123(7) of the Act and in any case, their role as counting agents of the returned candidate cannot be deemed to be in assistance of the election prospects of the returned candidate by virtue of Explanation 2 to Section 123(7) of the Act.
In so far as the second subsidiary question is concerned, what this Court has noticed is that the elaborate cross-examination of R. W. 7, Sri Manoranjan Sarma, clearly reveals that the Sadharan Jati Bikash Parishad is an organisation dedicated to work for the upliftment of the general category people and there is no material for this Court to hold that the said organisation is in any way an anti-tribal body and is dedicated to fight against the tribal cause. The support of the said organisation to the candidature of the returned candidate, therefore, would not have any material effect on the result of the election. In view of the aforesaid conclusion reached, it would be hardly necessary for this Court to go into any indepth examination of the contentions raised by either of the parties with regard to the admissibility and evidentiary value of the newspaper item marked with the letter "Z-1".
ISSUES NO. 2 AND 5 :--
The aforesaid two issues relate to the commission of corrupt practice of bribery within the meaning of Section 123(1) of the Act by the respondent No. 2 Sri Kesharam Bora. The aforesaid allegations of commission of corrupt practice not being in respect of the returned candidate, the issues framed can have relevance to the present case only if such alleged commission of corrupt practice by the respondent No. 2 has materially affected the result of the election of the returned candidate. The case has not been projected from the aforesaid perspective either in the pleadings or in the evidence adduced on behalf of the election petitioner. That apart, the evidence of the witnesses examined by the election petitioner in this regard i.e. P.W. 9, P. W.14 and P.W. 15 are to the effect that yarn and spray machines were distributed by one Jogen Sarma and Jagannath Doley, respectively, to the voters as an inducement to vote for the Asom Gana Parishad candidate. No positive role is ascribed to the respondent No. 2 to such alleged distribution of yarn and spray machines, in the evidence led on behalf of the election petitioner, so as to establish that such distribution with the added appeal to vote for the Asom Gana Parishad was with the knowledge and consent of the respondent No. 2. Not only the charges of corrupt practice levelled against the respondent No. 2 have not been established, nothing has been proved as to how and in what manner, the same has materially affected the result of the election of the returned candidate. Both the aforesaid issues are, therefore, decided against the election petitioner.
ISSUE NO. 8 :--
This issue relates to alleged commission of corrupt practice under Section 123(8) of the Act by one Jagannath Doley, an A.G.P. leader.
14. The witnesses examined by the election petitioner to prove the aforesaid aspect of the case are P.W. 11, P.W. 12 and P. W. 16. According to the aforesaid witnesses, on the day of poll i.e. 10-5-2001, one Jagannath Doley, a Member of the Mishing Autonomous Council and a leader of the Asom Gana Parishad entered the polling station No. 87 at Dikrongmukh L. P. School and had intimidated the polling staff on duty and after coming out, had assaulted the voters who were standing in the queue to cast their votes as a result of which one Bapuram Tayeng has sustained injury and further, he could not cast his vote along with many others. The evidence on the aforesaid issue is against the Respondent No. 2 and not against the returned candidate. Learned counsel for the election petitioner by laying emphasis on the expression "other person" appearing in Section 123(8) of the Act has contended that the aforesaid actions of Sri Jagannath Doley which stands proved by the evidence on record would amount to booth capturing within the meaning of Clause (c) to Section 135A of the Act and, therefore, the same would vitiate the election of the returned candidate. The argument has to be negatived as it overlooks the expressed language of Section 100(1)(b) of the Act which empowers the High Court to declare the election of the returned candidate to be void, if in the opinion of the Court, any corrupt practice has been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. Section 123(8) of the Act only defines the expression 'booth capturing'.
15. ISSUE NO. 6 :--
The election petitioner has pleaded that the counting of votes which took place on 13-5-2001 was marred by very many anomalies in the course of which a large number of votes cast in favour of the election petitioner were counted against the name of the returned candidate. In respect of the alleged anomalies which took place no material particulars or any description thereof, has been pleaded. Two contemporaneous documents i.e. the complaints to the Returning Officer submitted by the election petitioner have been enclosed to the election petition and have been exhibited as Ext. P/4 and Ext. P/5 in the course of the trial. In the said documents, what has been mentioned is that the election petitioner had suspicion with regard to the counting of votes and anomalies committed in the course of such counting. No other particulars have been mentioned. The oral evidence adduced by the election petitioner in this regard apart from his own testimony consists of the evidence of P.W. 2, P.W. 3 and P.W. 17. Though the Table and Hall number in respect of which such alleged anomalies took place is consistent i.e. Table No. 3 of Hall No. II, there is no consistency in the evidence of the witnesses as to the number of ballot papers with regard to which such anomalies had taken place. While the election petitioner has deposed that according to his estimate, about 2000 votes cast in his favour were counted against the returned candidate, according to P.W. 2, such number may have been between 2000 and 3000. P.W. 3 who was a counting agent assigned to another table, had no knowledge about, any anomaly whereas P.W. 17 Sarupai Tamuli, the counting agent of the election petitioner assigned against Table No. 3 of Hall No. II, has deposed that the number of ballot papers in respect of which anomalies were committed had progressively increased with each round of counting starting from 50 in the first round to about 1500 in the last round. Such anomalies, according to the petitioner's witnesses, were committed by the counting supervisor assigned to the said table i.e. Table No. 3 of Hall No. II. Yet, no steps were taken to ascertain the name of the said counting supervisor. In the documents exhibited as Ext. P/4 and Ext. P/5, the fact that anomalies were committed right from the first round of counting which continued until the last round, has also not been mentioned. The evidence of the returned candidate, R.W. 1 and his election agent, R.W. 8, apart from the denials, demonstrates that Central Observers were moving around in the counting halls from one table to another on the day of counting and no complaint was lodged with any of the said Election Observers while the counting was in progress.
The case sought to be proved by the election petitioner in so far as the anomalies in the counting of votes is concerned is one under Section 100(1)(d)(iii) of the Act. The anomalies in counting must, therefore, have resulted improper reception of any vote/ votes in favour of the returned candidate thereby materially affecting the result of the election. The exact number of votes in respect of which the anomalies were allegedly committed, is neither pleaded in the election petition nor mentioned in Exts. P/4 and P/5. The oral evidence adduced on behalf of the petitioner does not show any consistency as to the number of votes which were illegally counted in favour of the returned candidate, as alleged. The minimum particulars in respect of such votes necessary to generate even a prima facie satisfaction in the Court have not been brought on record by the election petitioner. Consequently, this issue must also be answered against the election, petitioner.
16. In view of the foregoing discussions, this Court, is inclined to hold that the election petitioner is not entitled to any of the reliefs as claimed and that this election petition is wholly without any merit. It is accordingly dismissed with costs which is quantified at Rs. 5,000/-.