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CASE NO.: Appeal (civil)  1300 of 2003

PETITIONER: Borgaram Deuri                                           

RESPONDENT: Premodhar Bora and Anr.          

DATE OF JUDGMENT: 05/01/2004

BENCH: CJI & S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA, J:

       The election petitioner is the appellant herein.  He  filed the said petition questioning the election held on  10.5.2001 and the result whereof was declared on 13th May,  2001 declaring the first respondent herein as having been  elected from 109 Bihpuria Constituency in the Assam  Legislative Assembly General Elections.   

The appellant attributed corrupt practices against the  first respondent herein purported to be under Section 123(3)  and Section 123(3A) of the Representation of the People Act,  1951.

The full particulars of alleged corrupt practices had  been set forth in the petition which are as under :    (i) "On 25.4.2001 at about 2 P.M. when  the petitioner was coming from  Bahgora Deurigaon to Biphuria Town  in a Tata Sumo (hired) vehicle  accompanied by his wife and workers  of the party Sri Lakhi Kanta  Hazarika and Sri Giridhar Gohain  after paying a visit to Shiv Mandir  (Kundi Mama Mandir) the petitioner  and his superiors on their way  themselves saw a gathering of about  200 men who were being addressed by  the respondent No. 1 Sri Premodhar  Bora from the stage platform of  Rangamanch situated at Santhapur  within Biphuria Police Station as a  part of his election campaign.  The  petitioner halted there for a while  and hear the respondent No. 1, the  returned candidate urging upon  appealing to the gathering to vote  for the respondent/ returned  candidate and to refrain from  voting for the petitioner on the  ground that the petitioner belongs  to the Scheduled Tribe Community,  he further shouted a slogan  "Biphuria Bachao".  The respondent  No. 1 also appealed to the members

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of the gathering to refrain from  voting in favour of any candidate  belonging to ’Scheduled Tribe  Community’.  The respondent No. 1  made this appeal to promote a  feeling of enmity and hatred  between different classes of the  people of 109 Biphuria Legislative  Assembly Constituency.  It may be  mentioned here that in the meeting  aforesaid the respondent No. 1 was  accompanied by his agents namely  Sri Ghanakanta Baruah and Sri  Monoranjan Sharma and they also  delivered speeches before the  gathering with specific slogan to  vote for the respondent No. 1 and  to refrain from voting in favour of  the petitioner on the ground that  the petitioner belongs to Scheduled  Tribe Community.  The respondent  No. 1 and his aforesaid two agents  made the aforesaid slogan appealed  to the members to caste vote for  the respondent No. 1 and to refrain  from voting in favour of the  petitioner for furtherance of the  prospect of the election of  respondent No. 1 and for  prejudicially affecting the  election of the petitioner.   

(ii) On 1.5.2001, respondent No. 1 Sri  Premadhar Boar along with Shri  Monoranjan Sharma and Ghanakanta  Borua both are counting agents of  Mr. Premodhar (Respondent No. 1)  and also Government servants both  are teachers of Nehru Higher  Secondary School, Jamuguri under  Bihpuria Constituency organized a  meeting at village Raidongia  Namghar at about 1 P.M. where about  200 voters attended the meeting.   In the meeting, the respondent No.  1 Sri Premodhar Bora and two other  persons mentioned above delivered  speeches in succession and appealed  to the persons present in the  meeting and to the people at large  with the use of loud speakers to  vote for him i.e. the respondent  No. 1 and to refrain from voting in  favour of the petitioner on the  ground that the petitioner belongs  to Scheduled Tribe Community.  This  appeal was made by the respondent  No. 1 and his two agents present  there for the furtherance of the  prospects of the election of  respondent No. 1 and for  prejudicially affecting the  election of the petitioner.  Sri  Giridhar Gohain, Dlbyajyoti Bhuyan  and other Congress workers

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witnessed the meeting and clearly  saw the respondent No. 1 hurling  the above language prejudicially  affecting the prospect of the  election of the petitioner.

(iii) On 7.5.2001, respondent No. 1  accompanied by Sri Ghanakanta  Baruah and Monoranjan Sharma and  others held a meeting at Bihpuria  Town at Ward No. 4 in a market  house at about 6 P.M. which was  attended by about 150 voters of the  said locality.  In the said meeting  respondent No. 1 specifically  appealed to persons present in the  meeting and the traders of the  market to vote for him and to  refrain from voting in favour of  the petitioner on the ground that  the petitioner is a S.T. candidate  and if he is elected from the  constituency, the constituency will  be made reserved for S.T.  Community.  By this words  respondent No. 1 promoted a feeling  of enmity and hatred between  different classes of persons of  that locality prejudicially  affecting the election of the  petitioner.  One Sri Rohini Bhuyan,  working President Block Congress  Committee, Bihpuria and Sri  Salauddin a Congress Worker  witnessed the meeting and heard the  speeches of Ghanakanta Barua and  Monoranjan Sharma."

       The first respondent herein in his written statement  denied and disputed the said allegations.  The parties  adduced their respective evidences before the High Court.   The High Court proceeded on the basis that the allegations  made in the election petition would amount to corrupt  practice within the meaning of Sections 123(3) and 123(3)(A)  of the Act.  

As regard the meeting dated 25.4.2001, it was held:

"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 both the  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

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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."

       In relation to the second meeting held on 1.5.2001, it  was held: "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 fail. This issue,  therefore, is decided against the  election petitioner."  

       As regard the third meeting dated 7.5.2001, the High  Court observed:

"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.,

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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."

       Mr. S.B. Sanyal, the learned senior counsel appearing  on behalf of the appellant would submit that the High Court  committed a manifest error in arriving at the aforementioned  conclusions insofar as it applied wrong legal tests as  regard appreciation of evidence.  The learned counsel would  contend that the High Court even did not refer to the news  item dated 19.4.2001 published in the newspaper "Azir Assam"  which would prove the contents of the speech delivered by  the President of the Coordination Parishad wherein the  speakers asked the voters not to caste their votes in favour  of the appellant and Shri Kesoram Boro from wherever and  from which party they contest.  Such and appeal, Mr. Sanyal  would contend, was evidently made to spread hatred against  members of a Scheduled Tribe which amounts to corrupt  practice.  Relying on the decisions of this Court in Birbal  Singh Vs. Kedar Nath [(1976) 4 SCC 691], Mr. Sanyal would  aruge that the interestedness  of a witness cannot itself be  a ground to disbelieve him as certain witnesses may also be  interested in speaking the truth.

       The allegations of corrupt practices must conform to  the provisions contained in Sections 123(3) and 123(3)(A) of  the Act.  It is not in dispute that Section 83 of the  Representation of People Act is mandatory in nature.  It is  imperative that the election petitioner must disclose the  source of his information in the election petition fully.

       The allegations of corrupt practices are viewed  seriously.  They are considered to be quasi-criminal in  nature.  The standard of proof required for proving corrupt  practice for all intent and purport is equated with the  standard  expected  in  a  criminal  trial. However, the  difference between an election petition and a criminal trial  is, whereas  an accused has the liberty to keep silence,  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.  The burden of the

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election petitioner, however, can be said to have been  discharged only if and when he leads cogent and reliable  evidence to prove the charges levelled against the returned  candidate.  For the said purpose, the charges must be proved  beyond reasonable doubt and not merely by preponderance of  probabilities as in civil action. (See Gajanan Krishnaji  Bapat and another Vs. Dattaji Raghobaji Meghe and others,  AIR 1995 SC 2284, Surinder Singh Vs. Hardial Singh and Ors.  1985 (1) SCR 1059, R.P. Moidutty Vs. P.T. Kunju Mohammad and  Another, (2001) 1 SCC 481 and Mercykutty Amma Vs. Kadavoor  Sivadasan and another, 2003 AIR SCW 6306).  

       The witnesses examined by the appellant in support of  his allegation in relation to the first meeting was found to  be unworthy of any trust by the High Court.  The witnesses   though admitted that they were the residents of the locality  and had been present in the meeting, could not recognize any  of the persons present therein.  Admittedly, no independent  witness from the village had been examined by the election  petitioner.  The High Court, however, although found fault  with the nature of the evidence adduced by the first  respondent herein but in making the observations as in  paragraph 8 of the judgment and, as noticed hereinbefore,  the High Court must be held to have meant that the appellant  has not been able to discharge heavy burden.   

       Spreading of hatred on communal basis is an offence.   The appellant herein did not lodge any First Information  Report.  No contemporaneous documentary evidence has been  brought on record to show that the first respondent had  spread hatred towards member of another community or caste.   The contents of the news item whereupon Mr. Sanyal relied  having not been proved by examining the reporter, the same  could not have been exhibited legally on the statement of  the witness that the report had been published in the  newspaper.  It was, therefore,  inadmissible in evidence.   

       Even otherwise the manner in which the alleged corrupt  practice has taken place does not inspire confidence.  Normally a candidate would not commit an offence in presence  of another candidate.  It is also wholly unlikely that such  statements would be made openly.  Even if it had been done,  it is expected that independent witnesses would come forward  to testify the veracity thereof.   

       In Quamarul Islam Vs. S.K. Kanta and Others [1994 Supp  (3) SCC 5], this Court held:

"48. Newspaper reports by themselves are  not evidence of the contents thereof.   Those reports are only hearsay evidence.   These have to be proved and the manner  of proving a newspaper report is well  settled."

       So far as the allegations as regard the meeting held on  1.5.2001 is concerned, the High Court, for valid and cogent  reasons, did not accept the testimonies of the witnesses  examined on behalf of the appellant.  P.W. 4 Shri Kushal  Baruah in cross-examination could name only P.W. 5 and P.W.

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6 to be present in the meeting although he is a resident of  the same village.  P.W. 5 and P.W. 6 admittedly belong to  another village.  He also admitted that only the first  respondent spoke in the meeting.  The evidence of P.W. 5 was  not believed on the ground that he was a chance witness.  He  

furthermore contradicted P.W. 4 by saying that even the two  agents of the first respondent delivered speech.  He further  admitted that he is related to the election petitioner.  The  High Court noticed that one of the listed witness Shri  Raidangia Namghar had not been examined and the witnesses  examined on behalf of the election petitioner only named  each other as the person present in the meeting and nobody  else.

       So far as the third meeting dated 7.5.2001 is  concerned, the entire case of the appellant rested on two  witnesses viz. P.W. 8 and P.W. 7.  P.W. 8 admittedly was the  General Secretary of the District Congress and P.W. 7  admittedly was his constant companion.  The names of the  other witnesses examined by the appellant did not figure in  the list of the witnesses filed earlier by the appellant.

       In Birbal Singh (supra) this Court while holding that  the court should be on its guard while evaluating the  testimony of interested witnesses observed that they must be  subjected to a closer scrutiny.  

       This Court in no uncertain terms stated that in a given  case the Court would be justified in rejecting that evidence  unless it is corroborated from an independent source.   Applying the said test also, the evidence of P.W. 7 and P.W.  8 cannot be believed.

       The High Court itself while disbelieving the said  witnesses noticed that they did not report to anybody about  the meeting held at Bihpuria Bazar and incriminating  speeches made therein.  The findings of the High Court,  therefore, are in consonance with the legal tests laid down  by this Court in Birbal Singh (supra).

       On analyzing the materials on record, it is, therefore,  evident that the appellant had not been able to prove the  charges of corrupt practice against the first respondent  herein by adducing clear-cut evidence which can be said to  be wholly credible and reliable.  The charges of corrupt  practice were needed to be proved beyond doubt which the  first respondent failed to do.

       It is beyond any cavil that the allegations of corrupt  practice must be pleaded strictly in terms of Section 83 of  the Representation of People Act and proved beyond all  reasonable doubt.

        For the aforementioned reasons, we are of the opinion  that the judgment of the High Court cannot be faulted.   

       This appeal, therefore, being devoid of any merit is  dismissed.  No costs.