http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

CASE NO.: Appeal (civil)  4676 of 2005

PETITIONER: Desh Raj

RESPONDENT: Bodh Raj

DATE OF JUDGMENT: 30/11/2007

BENCH: K. G. Balakrishnan & R. V. Raveendran

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 4676 OF 2005

K.G. Balakrishnan CJI.

       This statutory appeal under section 116A of the Representation of  People Act 1951, is filed by an Election Petitioner against the judgment  dated 7.6.2005 of the Himachal Pradesh High Court dismissing his Election  Petition No.1 of 2003 challenging the election of the respondent (Bodh Raj)  as Member of Legislative Assembly from 35-Gangath (SC) Assembly  Constituency.  

2.      The case of the appellant in brief is that 35-Gangath Assembly  Constituency is reserved for scheduled castes, that he and the respondent,  among others were candidates for election from the said constituency. In the  said election held on 26.2.2003, the respondent secured the highest number  of votes namely 24499 and was declared as elected. The respondent had in  his nomination paper declared that he belongs to a scheduled caste (Lohar)  and in support of his claim, had produced a caste certificate dated  16.12.1991 issued by the Executive Magistrate, Indora, District Kangra  certifying that he belonged to scheduled caste of Lohar. Only a few days  before the polling, the appellant learnt that respondent does not belong to  Lohar caste but belongs to ’Tarkhan’ caste which is not a scheduled caste in  the State of Himachal Pradesh. According to Appellant, the respondent was  disqualified to contest the election in the Assembly Constituency reserved  for scheduled caste and therefore, the election of the respondent was void.  

3.      The respondent resisted the said election petition. In his written  statement, he asserted that he belonged to Lohar caste (a Scheduled Caste)  and was eligible and qualified to contest as a candidate for the reserved  Assembly Constituency (35-Gangath).  He also contended that he was not  served a complete and attested copy of election petition and therefore, the  petition was liable to be rejected.  

4.      Issues 1 to 3 framed by the High Court (relating to the respondent’s  contention that he was not served a complete and attested true copy of the  election petition)  were treated and tried as the preliminary  issues and held  against the respondent by order dated 26.9.2003. Thereafter, evidence was  led in regard to the issues (4) to (6) which read thus:

(4)     Whether the respondent is not a member of Lohar Caste (SC) and was  not qualified on the date of his election to fill the seat in the  Assembly, from reserved Constituency for SC?

(5)     Whether nomination paper of respondent has wrongly and improperly  been accepted?

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

(6)     Relief

After appreciating the oral and documentary evidence, the learned Single  Judge of the High Court by Judgment dated 7.6.2005 held that the appellant  failed to prove that respondent did not belong to a schedule caste (Lohar)  and was not qualified to contest the election to the assembly seat reserved  for scheduled caste. As a consequence, he dismissed the petition. The said  judgment is under challenge in this appeal.  

5.      It is not in dispute that a person who does not belong to a scheduled  caste, cannot offer himself as a candidate for election to a reserved  constituency. Article 173 of the Constitution prescribes the qualification for  membership of the State Legislature and provides that a person shall not be  qualified to be chosen to fill a seat in the legislature of a State unless he is a  citizen of India, not less than 25 years of age, and possesses such other  qualifications as may be prescribed in that behalf by or under any law made  by Parliament. Section 5 of the Representation of People Act, 1951 (’Act’ for  short) made by the Parliament prescribes the qualification for membership of  a Legislative Assembly. It provides that a person shall not be qualified to be  chosen to fill a seat in the Legislative Assembly of a State, reserved for the  scheduled castes of that State, unless he is a member of any of those  scheduled castes and he is an elector for any Assembly Constituency in that  State. Section 100 of the Act enumerates the grounds for declaring an  election to be void. Clause (a) of sub-section (1) thereof provides that if the  High Court is of the opinion that on the date of his election, a return  candidate was not qualified, or was disqualified, to be chosen to fill the seat  under the Constitution or under the Act, the High Court shall declare the  election of the returned candidate to be void. Thus, if a candidate who  contests the election, representing himself by belonging to a schedule caste,  is shown in a proceeding contesting his election, as not belonging to a  schedule caste of the state, his election is liable to be declared as void.  Therefore, the only question that arises for our consideration is whether the  appellant had proved that the respondent does not belong to ’Lohar Caste’ - a  scheduled caste of the State of Himachal Pradesh.  

6.      The appellant had let in oral evidence by examining some residents of  the respondent’s village Mohtli - Jagdish Raj (PW7), Satpal (PW8), Joginder  Singh (PW9) and Mohal Lal (PW10)  to show that the respondent belonged  to ’Tarkhan’ caste. He also let in documentary evidence in the nature of  school records (Ex.PW-2/A, Exs.PW-3/A and 3/B), birth register extracts  (Exs.PW-6/A, 6/B, and 6/C) and Pariwar Register maintained by the Gram  Sabha (Exs.PW-4/A, 4/B, 4/C and 4/D) to show that the caste of respondent  was ’Tarkhan’ and that after 1990 respondent had attempted to represent that  his caste as Lohar. We will first consider the oral evidence.  

7.      Jagdish Raj (PW7) stated that the respondent’s mother and his father  were cousins, that he and respondent belong to Tarkhan caste and are  residents of Mohtli village. According to him, the village has three  Mohallas. About ten families of Tarkhan caste and those belonging to the  Rajput caste reside in Jaildar Mohalla. Persons belonging to the scheduled  castes of Chamar, Mahashay, Batwal and Bazigar reside in the Harijan  Mohalla. Brahmins reside in the Brahmin Mohalla. He stated that no one  belonging to ’Lohar’ caste resided in the village. He also states that  respondent’s parents were Milkhi Ram and Giano Devi. He also gave the  names of other Tarkhan families in the village who were the relatives of the  respondent. His evidence was rejected by the High Court on the ground that  the witness had admitted that his grandfather had worked as a Blacksmith  and a person who worked as a blacksmith was called as a Lohar and a person  who worked as Carpenter was called as Tarkhan and on the ground that he  was not in a position to say the degree of relationship between his father and  respondent’s mother, when he claimed that they were cousins.   

8.      Satpal (PW8), another resident of Mohtli village, stated that  respondent was a Tarkhan by caste, that he knew respondent’s father Milkhi  Ram as also his relatives who all belonged to Tarkhan caste and who were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

displaced persons who had come from Pakistan and settled in the village  Mohtli. He also stated that Mohtli village is divided into three areas namely  Brahman Abadi where Brahamins lived, Jaildar Mohalla where Tarkhan and  Rajput families resided and a separate Mohalla where people belonging to  scheduled castes - Chamar, Mahashay, Batwal and Bazigar resided and that  there was no Lohar family in the village Mohtli. He also stated that except  respondent, there was no other person known as Bodh Raj son of Milkhi  Ram in the village Mohtli. The evidence of this witness was rejected by the  High Court on the ground that the witness was able to state the number of  issues of each son and daughter of Milkhi Ram.    9.      Joginder Singh (PW9), another resident of Mohtli village, stated that  respondent belonged to Tarkhan caste, that he also knew the respondent’s  father Milkhi Ram as also their relatives who all belonged to Tarkhan caste.  He also stated that Milkhi Ram had five children namely three sons (Sat Pal,  Yashh Pal and Bodh Raj) and two daughters (Satya Devi and Raj Rani) and  the respondent was youngest among the five issues of Milkhi Ram. He also  stated that Tarkhans and Rajputs reside in Jaildar Mohalla, that persons  belonging to scheduled castes of Chamar, Bazigar, Batwal and Mahashay  resided in a separate Mohalla, and Brahmins resided in another separate  Mohalla. The evidence of this witness was rejected on the ground that he  was a sympathizer towards BJP party to which the appellant belonged and  therefore, inimical towards respondent who belonged to Congress Party.  

10.     Mohan Lal (PW10) who is also a resident of the Mohtli, stated that  respondent belonged to Tarkhan caste and that there was no person other  than respondent in the village who is known as Bodh Raj, son of Milkhi  Ram and that no Lohar family resides in the Village Mohtli. His evidence  was rejected by the High Court on the ground that he did not know  respondent’s father Milkhi Ram and had not stated the occupation of the  respondent’s family members.  

11.     The appellant Desh Raj gave evidence as PW-11. He stated that  respondent belonged to Tarkhan caste and was not qualified to contest the  election for a seat reserved for scheduled castes. He stated that only 4 to 5  days before the polling, he came to know from his workers that respondent  belonged to a backward caste (BC) and not a scheduled caste. His evidence  by the High Court was rejected as he had no person knowledge about the  caste of the respondent.  

12.     We may also refer to the evidence of the respondent’s witnesses  hailing from the village Mohtli. RW-1 Yash Pal, respondent’s elder brother,  examined as RW-1 stated that he and respondent are Lohars by occupation.  He also stated that Basaba Ram and Nasib Chand who are related to him  were also Lohars by ’occupation’. In his cross-examination, he stated that his  father Milkhi Ram had five children (three sons and two daughters), that the  respondent was the youngest, that his grandfather’s name was Gopi, that he  and respondent studied in the village school, and that respondent was  carrying on the business of scooter repairs. Tilak Raj examined as RW-4  stated that respondent, and his relations Khazana Ram and Basaba Ram were  Lohar by caste as they were doing the job of Lohars. Ved Prakash (RW-6)  stated that respondent and his brothers as also Basaba Ram and Khazana  Ram worked as Lohars and were, therefore, belonged to Lohar caste. He  admitted that he was elected as the Pradhan and respondent was elected as  Up Pradhan of Mohtli Gram Panchayat in the year 1990 that both belonged  to congress party. He also admitted that gram panchayat maintained a  register known as Pariwar Register, that Pradhan of the gram panchayat was  the overall custodian of all records and that the details of all families  residing in the panchayat areas including names, age, address, caste etc., are  recorded in the said register. He admitted that in the Ex.PW4/A, the Pariwar  Register relating to the year 1976, the caste of respondent and his family had  been shown as Tarkhan and that then corrected as ’Lohar’. Ram Singh (RW- 7) stated that he knew respondent’s father Milkhi Ram and his three sons  including respondent were belonged to Lohar caste. He also stated that he  had seen the members of the respondent’s family working as Lohar and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

therefore, he stated that he belonged to the caste of Lohar. Bua Butta (RW-8)  another resident of Mohtli village stated that he knew the respondent, that  respondent was a Lohar by caste. According to him, because he used to get  agricultural iron implements prepared and repaired by him, the respondent  belonged to Lohar caste. He asserted that except respondent there is no other  Bodh Raj, son of Milkhi Ram in the Mohtli village. Maggai Singh (RW-11)  who is a resident of a neighbouring village of Surajpur stated that he used to  get Lohar’s job done from Milkhi Ram, Khazana Ram and Chaina Ram and  that ’since they were working as Lohars, they were Lohars by caste. He also  clarified that he had not enquired about their castes and that it is possible  that respondent and his family may be Tarkhans.  

13.     What emerges from the aforesaid oral evidence is that while the  witnesses examined by the appellant (PWs 7, 8, 9 and 10), who all belonging  to Mohtli village to which respondent belonged, stated that they knew him  and his family well and that he belonged to Tarkhan caste. The cross- examination of these witnesses (PWs 7, 8, 9 and 10) has not brought out  anything significant to disbelieve their evidence. On the other hand, the  evidence of the witnesses of respondent (RWs 1, 4, 6, 7, 8 and 11) has been  to highlight the occupation of respondent and his relatives. They have all  stated that because the respondent’s family and relatives were doing the job  of Lohars, they belong to the caste of ’Lohar’. In fact, the evidence of  appellant’s elder brother Yash Pal in his short examination-in-chief,  extracted below, is significant :  "I know the respondent. He is my brother. We are Lohars by  occupation. Name of my father is Milkhi Ram. I know Basawa  Ram and Nasib Chand also. They are related to me. They are  also Lohars by occupation."    

14.     We will next consider the documentary evidence. Ex.PW-2/A is the  admission and withdrawal Register of Government Primary School, Mohtli  for the relevant period. Entry at Sl. No.1739 in the said Register shows that  Bodh Raj, son of Milkhi Ram, Labourer (date of birth 2.5.1956; caste:  Tarkhan) was admitted on 16.4.1962 to the First Standard and his name was  struck off due to lack of attendance on 11.2.1964. There is another entry  relating to Bodh Raj, son of Milkhi Ram of Mohtli village at Sl. No. 1959.  This entry shows that Bodh Raj, son of Milkhi Ram (date of birth 2.5.1956,  caste : Tarkhan) was admitted to the second standard. The portion of the  sheet where the date of admission was noted is torn and it is however,  evident from the other entries in the sheet that the admission for the second  time was made in April, 1964. The entry also shows that he studied up to 5th  standard and completed his education in the school on 31.3.1967.  

15.     Ex.PW-3/A is the application form for admission given to the  government Secondary school by Milkhi Ram. It gives the name of the  student as Bodh Raj, father’s name as Milkhi Ram, date of birth as 2.5.1956  and the caste as Tarkhan. It contains the thumb mark of Milkhi Ram.  Ex.PW-3/B is the Admission Register of Mohtli Government Middle School  for the period 1962 to 1969. Entry No.778 relates to Bodh Raj son of Milkhi  Ram, Mazdoor, caste Tarkhan. The admission was noted in a page at the top  of which was the date 11.9.1967. As the next page starts with the date  4.4.1968, it is to be inferred that the admission to the middle school was in  the year 1967-68.     

16.     Ex.PW-6/A is the extract of the Birth Register maintained by the  Indora Police Station (page 376 entry no.27) whose limits include Mohtli  village. Ex.PW-6/B is the true English translation of Ex. PW/6A which is in  Urdu. Ex. PW6/C is the certificate of birth. They relate to the birth of the  fifth child of Milkhi Ram (son of Gopi Ram) and Smt. Giano, on 2.5.1956.  The place of residence of the parents is shown as Mohtli and their caste is  shown as Tarkhan. The name of the male child is shown as Bodh Ram. The  registration was made on 16.5.1956, on the report of the Chowkidar.  

17.     Ex.PW-4/A, Ex.PW-4/B, Ex.PW-4/C and Ex.PW-4/D are the Pariwar  Register of Mohtli Village for the years 1976, 1977, 1982-89 and 1990

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

onwards. The said register is maintained as required by the relevant rules  relating to Gram Sabhas. In Ex.PW-4/A relating to the year 1976, the family  of Yash Pal is shown as consisting of Yash Pal, his wife Prem Lata, daughter  Guddi and brother Bodh Raj. Under the column ’whether scheduled caste or  scheduled tribe’, the caste is entered as ’Tarkhan’, which is struck off and  substituted by the word ’Lohar’ without any attestation regarding correction.  In Ex.PW-4/B is the pariwar register relating to the year 1977, the entry  relating to Sat Pal and his family shows that his family consisted of himself,  his wife Kamlesh, his brothers Yash Pal and Bodh Raj and his children  Asha, Nirasha and Sushil Kumar. Under the column ’whether scheduled  caste or scheduled tribe’, the caste is entered as ’Tarkhan’ which is struck off  and substituted by the words ’Lohar’ without any attestation regarding  correction. In Ex.PW-4/C which is the Pariwar register for the year 1982- 1989, the entry regarding the  family of Sat Pal shows the family as  consisting of himself, his wife Kamlesh, his children Asha, Nirasha and  Sushil Kumar, his brother Yash Pal and his wife Prem Lata and child Guddi  and another brother Bodh Raj. Here again, under the column ’whether  scheduled caste or scheduled tribe’, the entry is ’Tarkhan’ which is struck off  and substituted by the word ’Lohar’ without any attestation regarding the  correction. Ex.PW-4/D is the Pariwar register for the year 1990 onwards and  in this register, the family of Bodh Raj is shows as consisting of himself, his  wife Kunti Devi and children Rajiv Kumar and Pankaj Kumar and under the  column ’whether scheduled caste or schedule tribe’, the caste is shown as  ’Lohar’.  

18.     The High Court has rejected all these documents as either not proved  or not of any evidentiary value. We may now consider whether they were  properly proved.  

19.     Ex.PW-2/A (admission and withdrawal register of the government  primary school, Mohtli) was produced by PW-2 (Kamla Kumari) employed  in the Government primary school, Mohtli, in response, summons issued to  the said school to produce the said register. She also gave evidence  regarding entries nos. 1739 and 1959 relating to Bodh Raj and gave the  particulars entered in regard to Bodh Raj under the said two entries. In her  cross-examination, she stated that she has been posted in the said school for  the last two years and that she had not made the said entries. The High Court  has rejected the said School Register on the ground that the said register  Ex.PW-2/A and the entries therein relating to Bodh Raj merely on the  ground that PW-2 was not the author of the entries and she has no personal  knowledge about the entries. The High Court relied on the decision of this  Court in Birad Mal Singhvi vs. Anand Purohit [AIR 1988 SC 1796].  

20.     Section 35 of the Evidence Act provides that an entry in any public or  other official book or register or record, stating a fact in issue or relevant fact  and made by a public servant in the discharge of his official duty or by any  other person in performance of a duty specifically enjoined by law of the  country in which such book or register is kept, is itself a relevant fact.  Having regard to the provisions of Section 35, entries in school admission  registers in regard to age, caste etc., have always been considered as relevant  and admissible. [See : Umesh Chandra vs. State of Rajasthan - 1982 (2)  SCC 202 and State of Punjab vs. Mohinder Singh - 2005 (3) SCC 702]. In  Kumari Madhuri Patil vs. Addl. Commissioner [1994 (6) SCC 241], this  Court observed that caste is reflected in relevant entries in the public records  or school or college admission register at the relevant time and certificates  are issued on its basis. In Birad Mal Singhvi (supra), this Court after  referring to the ingredients of section 35 held thus :  

"An entry relating to date of birth made in the school register is relevant  and admissible under section 35 of the Act, but the entry regarding to the  age of a person in a school register is of not much evidentiary value to  prove the age of the person in the absence of material on which the age  was recorded\005\005 The entries regarding dates of birth contained in the  scholar’s register and the secondary school examination have no probative  value, as no person on whose information the dates of birth of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

aforesaid candidates was mentioned in the school record, was examined.  In the absence of the connecting evidence, the documents produced by the  respondent, to prove the age of the aforesaid two candidates have no  evidentiary value."

This Court further held unless the parents, or persons conversant with their  date of birth were examined, the entry in the school register by itself will not  have much evidentiary value. In this case, we are concerned with the ’caste’  and not the date of birth. The residents of a village have more familiarity  with the ’caste’ of a co-villager, than the date of birth of the co-villager.  Several villagers who knew the respondent and their father, including a  cousin of the respondent has been examined and they have stated the caste of  the respondent. Appellant has also produced other documentary evidence  which clinch the issue, namely the application made by the respondent’s  father for admission of respondent to school, birth register extract and  village Pariwar Register extracts to establish the caste of the respondent.  Further the said entries in the school register were made nearly forty years  prior to the election petition. When read with other oral and documentary  evidence, it cannot be said that Ex.PW-2/A has no evidentiary value even by  applying the strict standards mentioned in Birad Mal Sanghvi.  

21.     We will next refer to Ex. PW3/A and Ex. PW3/B produced by PW-3  Smt. Indersh Bala, Principal of the Mohtli Senior Secondary School in  response to a summons issued by the High Court. Ex. PW3A is application  for admission submitted to the School by Milkhi Ram, father of Bodh Raj,  registered as Sl.No.478. Ex.PW-3/B is the School Admission Register and  entry 778 showed that Bodh Raj son of Milkhi Ram, caste Tarkhan, was  admitted to Middle School and had passed 8th standard from the school.  PW-3 stated that the particulars mentioned in the entry were that he was the  son of Milkhi Ram, resident of village Mohtli and that his caste was  Tarkhan. In her cross-examination, she stated that she was working in the  said school for the last about one and half years and has no personal  knowledge about the entries made therein. The High Court rejected both  Ex.PW-3/A and PW-3/B on the ground that the date of Ex.PW-3/A was not  clear and can be read as 22.4.1996 or 23.4.1968 and neither of those dates  correlated to Ex.PW-3/B as that showed that admission must have been  made between 11.9.1967 and 4.4.1968. It is evident from Ex.PW-2/A that  Bodh Raj left the primary school on 31.3.1967. The date on which the  application for admission was registered was seen as ’22.4.196__’. Only  regarding the last figure in the ’year’ the court had a doubt whether it was ’6’  or ’7’ or ’8’ as that would make the year 1966, or 1967, or 1968. Merely  because there was difficulty in reading one figure in the date cannot be a  ground to refuse to accept Ex.PW-3/A. The said application submitted by  Milkhi Ram, containing his thumb mark, being a document more than 30  years old attracts the presumption under section 90 of evidence Act. As  Ex.PW-3/A gives the caste as ’Tarkhan’, it has to be treated as clinching  evidence. Ex.PW-3/B which was also produced from proper custody in  pursuance of summons issued from the court showed that Bodh Raj, son of  Milkhi Ram, Tarkhan caste, belonging to Mohtli village studied upto 8th  standard. Here again it should be noticed that the evidence of the witnesses  of both appellant and respondent is that there is only one Bodh Raj, son of  Milkhi Ram in Mohtli village. Therefore, there was no justification to hold  that there were some irreconcilable difference between Ex.PW-3/A and  Ex.PW-3/B and rejected both the documents. Another reason given by the  High Court to reject the said evidence is that Ex.PW-3/B showed that the  Bodh Raj had passed the 8th Standard and whereas he had stated in his cross  examination that his qualification is under ’middle’. The High Court  interpreted this as having failed in 8th standard, and considered the said  statement as a contradiction and therefore, an additional ground for rejecting  Ex.PW-3/B. The Respondent had been evasive in his evidence about his date  of birth and particulars of his relatives in the village, to avoid being linked to  the caste mentioned in the school records. Therefore, his statement that he  was under ’middle’ was not a ground to reject the correction of Ex.PW-3/B.  Insofar as the evidentiary value of Ex.PW-3/B, our observation with  reference to Ex.PW-2/A equally apply to Ex.PW-3/B also.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

22.     We are of the view that the High Court  committed an error in  ignoring the entries in the admission and withdrawal registers of the  government primary and middle schools, Mohtli (Ex. PW-2/A and Ex. PW- 3/B). We have already noticed the evidence (of PW8 and RW8) that there is  only one Bodh Raj, son of Milkhi Ram in the village of Mohtli. Respondent  does not claim that there was any other Bodh Raj, son of Milkhi Ram in the  village of Mohtli. Respondent, who was examined as RW-5, specifically  admits that he studied in the Government primary school, Mohtli. He gives  his age as 48 years in 2004 which corresponds with the age that is entered in  the said register. When he was put a specific question about his date of birth  that is 2.5.1956 (which was the date entered in the said registers), the  respondent gave an evasive answer stating that he did not know whether his  date of birth was 2.5.1956. What is significant is that he did not deny that his  date of birth was 2.5.1956. In fact RW-9 examined by respondent admitted  that date of birth of respondent is 2.5.1956. The admission of the respondent  that he was born around 1956 and was a resident of Mohtli village and  studied in the government primary school, Mohtli, when read with the  School records, prove beyond doubt that the entries in Ex. PW2/A and Ex.  PW3/B referred to above relating to Bodh Raj, son of Milkhi Ram of Mohtli  village, Tarkhan caste, refers to respondent.  

23.     In response of summons issued by the High Court, PW-6 Naresh Sood  working as Projectionist in the office of CMO, Dharmashala, brought the  birth register and maintained by the Indora Police Station. The relevant entry  relating to birth of the fifth child of Milkhi Ram and Giano of Mohtli village  of Tarkhan caste on 2.5.1956 was marked as Ex.PW-6/A. An English  translation of the Urdu extracts was Ex.PW-6/B, and the certificate as   Ex.PW-6/C. The said register and the extract showed the name of the child  as ’Bodhu Ram’. It also shows that the entry was made on 16.5.1956 on the  information given by the, Chowkidar. The High Court rejected the said  evidence merely on the ground that the name of the child was mentioned as  ’Buddu Ram’ and not as Bodh Raj. This again is a public record relating to  births maintained as per Rules in the usual course of discharge of official  functions. The Punjab Police Rules, 1934 (applicable to Himachal Pradesh)  require maintenance of a Register of Births and Deaths at the Police Station  (vide Rule 22.45 in Chapter XXII relating to Police Station. Rule 22.66  gives the manner of maintaining such Register. Clause (5) states that birth  and death registers shall be retained at the Police Station for one year after  the date of last entry and shall be sent to the Civil Surgeon for record. The  Rule requires the village Watchman should diligently report births and  deaths of his village diligently. Therefore the said birth records ought to  have been accepted by the High Court. The High Court has rejected the  Birth Extract and certificate as they relate to Buddu Ram and not Bodh Raj.  It is quite possible that the person who gave information mentioned the  name as Buddu Ram instead of Bodh Raj or that the child was also known as  Buddu Ram initially. But what is relevant is that fifth child of Milkhi Ram  and Giano of Mohtli village who belonged to Tarkhan caste was born on  2.5.1956. It is nobody’s case that Milkhi Ram and Giano of Mohtli village  had some other fifth child born on 2.5.1956.  

24.     In pursuance of summons issued by the court, Chunni Lal, the  Panchayat Secretary of Gram Panchayat, Mohtli (PW-4) produced the  Pariwar register prepared and maintained as required under the Rules  relating to Gram Sabhas. The pariwar registers for the years 1976, 1977,  1982 to 1989 and 1990 onwards were produced as Exs.PW-4/A,  PW-4/B,   PW-4/C and  PW-4/D. In Ex.PW-4/A, Bodh Raj was shown as family  member of elder brother Yash Pal. In Exs.PW-4/B  and PW-4/C, he was  shown as a family member of elder brother Sat Pal. In all these registers, the  family was shown as of Tarkhan caste. Against the column ’whether   scheduled caste or scheduled tribe’, the entry was ’Tarkhan’ which was struck  off and substituted by the entry Lohar. The correction was not attested. On  the other hand, Ex.PW-4/D relating to the period of 1990 onwards showed  the respondent himself as the head of his family and his caste as Lohar.   RW-6, Ved Prakash, was the Pradhan of the Mohtli Gram Panchayat elected

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

for two terms in 1985 and 1990. He also had admitted that the gram Sabha  was maintaining a pariwar register containing the details of all families  residing in the panchayat area including their ages, occupations, castes etc.   The suggestion put by respondent (RW-5) and Ved Prakash [RW6] (Pradhan  during 1985-1995 and elected in 1990) was that when respondent became  the Up-Pradhan of the Mohtli Gram Panchayat in 1990, he managed to get  the entries in Exs.PW-4/A, PW-4/B, and PW-4/C, relating to caste namely  ’Tarkhan’ struck off and substituted the word ’Lohar’. The suggestion of  course was denied. If the substitution was with reference to the entry in only  one register, it could have been explained away as a mistake. But it is  significant that the registers of the years 1976, 1977 and 1982-1989 all show  the caste of the family as ’Tarkhan’ and all the entries are struck off and  substituted by the word ’Lohar’. The High Court has refused to rely on Ex.  PW4/A, B, C only on the ground that the entries in the register contained  some other corrections and that the manner in which they were maintained  raised a doubt about the probative value of the document. We are of the view  that in the absence of any satisfactory explanation of the caste ’Tarkhan’  being struck off and substituted by ’Lohar’, the conclusion is that they were  all done subsequent to 1990 when respondent became the Up-Pradhan.  

25.     The evidence let in by appellant clearly establish the following :  

(a)     Respondent was born in and is a resident of Mohtli village. His date of  birth is 2.5.1956.

(b)     Respondent is the last and fifth child of his parents are Milki Ram and  Giano. Respondent is the only ’Bodh Raj’, son of Milkhi Ram in  Mohtli village.

(c)     Respondent was a student of government primary and middle schools,  Mohtli. The school records show that Respondent is the son of Milkhi  Ram of Mohtli and his caste was Tarkhan on the basis of particulars  furnished by his father.   (d)     In the birth register maintained in the jurisdictional Police Station as  per the Punjab Police Rules, his date of birth was registered as  2.5.1956 and the caste of his parents was shown as Tarkhan;  

(e)     That in the Pariwar Registers maintained by the Gram Sabha between  1976 and 1989, the caste of his family was shown as ’Tarkhan’ and  that sometime thereafter, it was struck off and shown as ’Lohar’.  

The evidence of the residents of Mohtli village (PWs.7 to 10) support the  same. There is nothing in the cross-examination of PWs.7 to 10 to disbelieve  their statements that the respondent belonged to Tarkhan caste. However,  even if we exclude the entire oral evidence, the documentary evidence  produced by the appellant, to which we have adverted to above, clearly  demonstrate that the respondent’s father and his family members including  respondent had always held out to be and accepted as persons belonging to  Tarkhan caste. It was only after 1990, the respondent tried to show that he  belonged to Lohar caste.  

26.     The Learned counsel for the respondent submitted that in view of Ex.  PW4/D and Ex.RW-5A, he should be considered as having established that  he belongs to Lohar caste. Ex. PW-4/D is the Pariwar Register extract for the  year 1990 onwards. The same no doubt shows the caste of respondent as  Lohar. But when Ex.PW-4/D is read in conjunction with PW-4/A, PW-4/B  and PW-4/C which are the Pariwar Register extracts relating to the previous  years (1976, 1977 and 1982-1989) where his caste was shown as Tarkhan  and later altered as ’Lohar’, the entry in Ex.PW-4/D becomes a self serving  statement. The respondent was elected as the Upapradhan of Mohtli Gram  Panchayat in the year 1990 (RW-6, Ved Prakash, belonging to his party was  elected as Pradhan). In his capacity as Upapradhan he had access to the  records of the Panchayat, and it is obvious that with the intention of  representing himself as belonging to a Scheduled Caste of Lohar, had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

ensured that his caste was shown as Lohar in PW-4/D. The alteration of  the  entries relating to caste in Exs.PW4/A, 4/B and 4/C, from ’Tarkhan’ to  ’Lohar’ should be looked at in this background, particularly when it is seen  that the correction of caste by striking out ’Tarkhan’ is not only in regard to  the family of respondent but also in the case of some of the relatives of the  respondent.     In so far as the caste certificate Ex.RW-5/A issued by the  Executive Magistrate, Indora, relied on by respondent, it has to be observed  that such caste certificates are not given after a thorough investigation.  When the caste of respondent is in issue and when primary evidence  regarding caste is led by appellant, and the attempt of respondent to claim to  be a ’Lohar’ from 1990 is evident, the caste certificate issued by the  Executive Magistrate on 1.12.1991 cannot be taken as evidence to prove the  caste of the respondent. The decision of this Court in R. Palanimuthu vs.  Returning Officer [1984 (Supp.) SCC 77], supports this position. In Madhuri  Patil (supra), this court observed that when the school records show a  particular caste, the caste certificates issued to the candidates and his  relatives by the Executive Magistrate showing a different caste should be  ignored.  Reference was also made to the caste certificate of two relatives.  But they are also of the period subsequent to 1990 when respondent started  showing that he belonged to Lohar caste. They have to be ignored as  observed by this Court in Madhuri Patil (supra).  

27.     In view of the above, we are of the view that the appellant has clearly  established that the respondent and his family belong to Tarkhan caste which  is not a scheduled caste in Himachal Pradesh. It is also clear that from  around 1990, the respondent has made efforts to show his caste as ’Lohar’, a  scheduled caste. Consequently, we hold that the respondent who did not  belong to a Scheduled Caste, was not qualified to be chosen to fill a seat in  the Legislative Assembly reserved for Scheduled Castes.  

28.     Therefore, we allow this appeal, set aside the judgment of the High  Court and declare the election of the returned candidate (Bodh Raj) from 35- Gangath Assembly Constituency in the 2003 Election, to be void. Parties to  bear their respective costs.