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PETITIONER: N.HORANGSE

       Vs.

RESPONDENT: M. TSUBONGS

DATE OF JUDGMENT13/03/1985

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA

CITATION:  1985 AIR  843            1985 SCR  (3) 342  1985 SCC  Supl.  171     1985 SCALE  (1)417

ACT:      Election law-Corrupt practice under section 123(1), 123 (3A) and  123 (6) of the Representation of People Act, 1951- Appreciation of  evidence-Burden of  proof  of  election  of Corrupt practice  is upon  the election  petitioner and  not upon the  elected candidate-Presentation  by way of exchange of gifts  under the  custom of  the village  long before the election process commenced and given not to procure votes or to induce  the recipients  to cast  their votes  cannot fall under expression "corrupt practice".

HEADNOTE:      Tsubongse the  election petitioner  and the  respondent herein who  contested from the Longkhim-Chre constituency of the  Nagaland   Legislative  Assembly   as  a  Congress  (I) candidate in  the election held on 10.11.82 lost by a margin of 133  votes to  Horangse the  appellant and  who  was  the Deputy  Speaker   of  the  last  legislative  Assembly.  The respondent filed an election petition on the ground that the appellant was  guilty of  four instances of corrupt practice falling under Section 123(1) of the Representation of People Act, 1951 and on three other grounds, namely; (1) display of a banner with the caption "do not sell Nagaland to India", a corrupt practice  within the  meaning of Section 123 (3A) of the Act; (2) exceeding the limit of expenditure amounting to corrupt practice within the meaning of Section 123(6) of the Act and  (3) use  of government  vehicles for the purpose of the election.  The  learned  Single  Judge,  who  tried  the election petition,  found only  one of the aforesaid grounds of corrupt  practice, namely, presentation of four red waist coats  proved   and  the   other  grounds  not  proved,  and therefore, he  allowed the  election petition  and set aside the appellant’s election on that ground. Hence the appeal.      Allowing the appeal, the Court ^      HELD :In an election petition, the  petitioner who alleges corrupt practice must prove his case which is disputed by the returned candidate indepen- 343 dently -  of the  fact whether  the returned  candidate  has proved his defence or  not. [348E]      Here on the evidence of R.Ws. 1 to 5, the appellant got

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the waist  coats distributed  through P.W. 14 who was then a staunch worker  of the  Naga National  Democratic  Party  in September,  1982   long  before  the  election  process  had started, as  per the custom of Nagas to make gifts in return for the  gifts received  by dignitaries. The evidence let in by the  respondent election  petitioner to prove the item of alleged corrupt  practice on  the part  of the  appellant is wholly insufficient  and unacceptable  to prove  the  charge satisfactorily.  Though  in  the  election  petition  it  is clearly alleged  that the  appellant gave red waist coats to P.Ws. 11  to 13  and Lithsabha  at 4  p.m. On  27.10.82  for inducing them  to cast  their votes  in his  favour  in  the presence of P.Ws. 14 and 15 and they witnessed the offer and reported the  matter subsequently  to the respondent, P. Ws. 14 and  15 do not claim in their evidence personal knowledge about the  offer on  presentation of  the waist coats by the appellant to  these four persons and about the inducement of the appellant  to cast  their votes  in favour.  Admittedly, P.W. 14  had asked  P.Ws. 11, 12 and 13 to remember the date and time  of the  appellant’s visit to their houses where he claims to  have  gone  alongwith  P.W.  15  soon  after  the departure of  the appellant from each of those places. It is clear that  these three  witnesses,  P.Ws.  11  to  13  have mentioned the  date and  month of the appellant’s visit only on the basis of what P.W. 14 told them to remember. P. W. 14 who was  a staunch  worker of the NNDP and had switched over to the Congress (I) Party to which P.W. 15 belongs, sometime before the  election, and  P.W. 16 are interested witnesses. P.W. 15  has stated  in  his  evidence  that  the  appellant appealed to the people of the village to cast their votes in his favour  and that he went to the houses of P.Ws. 11 to 13 in Lirise  village only thereafter. If that is so, it is not likely that  the appellant,  then the  Deputy Speaker  would have carried  the gunny  or hessian bag containing the waist coats himself  without being  accompanied even  by a  single worker or  sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the  recipients to  cast their votes in his favour. The evidence  of P.Ws. 11 to 13 that P.Ws. 14 and 15 came to their houses  within minutes  after the  appellant left  the places and  asked them  about what had been given to them by the appellant  and that  when they  told them that red waist coats have  been given to then- with a request to favour him with their  votes, and  they asked them to remember the date and time  and not  to deny  the matter  later- P.W.  14  has stated so  in his evidence-is artificial and unreliable. The evidence of P.Ws. 11 to 15 about the date of the appellant’s visit to  Lirise village  and the  presentation of  the  red waist coats  to P.Ws.  11 to  13 and  another is equally not impressive. Therefore,  the appellant cannot be said to have committed any "corrupt practice".                                             [351B-C; 350C-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.  1236 (Nce) Of 1975      Appeal under  Section 116A  of the  R.P. Act  from  the order date 1.2.84 of the Gauhati High Court in E.P. No. 3 of 1983.      C. S. Vaidyanathan for the Appellant.      Kapil Sibal,  K K  Lahiri and Mrs. Manik Karanjwala for the Respondent.      The Judgment of the Court was delivered by

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344      VARADARAJAN,  J.  This  appeal  by  the  respondent  in Election Petition  No. 3 of 1983 on the file of Gauhati High Court is  directed against  the judgment of a learned Single Judge, allowing  the election petition and setting aside the election of  the appellant  Horangse from  the Longkhim-Chre constituency of  the Nagaland  Legislative Assembly  on  the ground of corrupt practice, namely, presentation of four red waist-coats to  three Gaon  Burahs and  one Barik  of Lirise village on  27-10-1982 to induce them to cast their votes in his favour.      The respondent/election  petitioner, M.  Tsubongse  who contested as  a Congress (I) candidate lost to the appellant who contested  as a Naga National Democratic Party candidate (for short  ’NNDP’) by a margin of 133 votes in the election held on  10-11-1982. He  filed his election petition seeking the appellant’s  election to be set aside on the ground that he was  guilty of four instances of corrupt practice falling under s.  123(1) of  the Representation  of People Act, 1951 (for short  ’the Act’)  and on  three other grounds, namely: (1) display  of a  banner with  the  caption  "Do  not  sell Nagaland to India", a corrupt practice within the meaning of s. 123(3A) of the Act (2) exceeding the limit of expenditure amounting to  corrupt practice  within  the  meaning  of  s. 123(6) of the Act and (3) use of government vehicles for the purpose of the election. The learned Single Judge, who tried the election  petition, found  only  one  of  the  aforesaid grounds of  corrupt practice,  namely, presentation  of four red waist coats proved and the other grounds not proved, and he  allowed   the  election   petition  and  set  aside  the appellant’s election  on  that  ground.  It  is,  therefore, necessary to  set out  the case  of the  parties briefly  in regard to this single ground.      The result  of the  election  held  on  10-11-1982  was announced on the day of counting 12-11-1982 by the Returning Officer, Tuesung.  The respondent  had  secured  3082  valid votes while the appellant, who was the Deputy Speaker of the last Legislative Assembly of Nagaland had secured 3215 valid votes and  was declared  elected by a majority of 133 votes. The respondent  alleged in  the election  petition that  the appellant gave  four red waist coats to the voters Lisechem, P.W. 11, Lithrongse, P.W. 12, Murimong, P.W. 13 and Lithsaba at 4.00  p.m. On  27-10-1982 for inducing them to cast their votes in  his favour  in the  presence of . Tsarise, P.W. 14 and Tselongse,  P.W. 15  of Lirise village who witnessed the offer and reported the matter later to the respondent. 345      The appellant  denied that  the waist  coats were given either by  himself or  in order  to induce the recipients to cast their votes in his favour. His case was that he visited Lirise village  some time  prior to  October  1982  and  was received by the villagers who considered him as one of their leaders. In view of the custom of Nagas to receive guests or others and  exchange gifts,  he sent  five waist coats to be given to  four Gaon  Burabs and  the  eldest  Barik  of  the village long  before the election process started. The waist coats ware  not given  to procure  votes or  to  induce  the recipients to cast their votes in his favour. Thus he denied that he  committed and  corrupt practice  and contended that the election  petition is  not bona  fide and has been filed only to harass him.      During the  trial the appellant’s case was that he sent the five  waist coats  as gifts  through Tsarise, P.W. 14 in September 1982  and that  he did  not personally  distribute them after  the election  process had  started in  order  to

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induce the recipients to cast their votes in his favour. The dispute was thus confined to the date of distribution of the waist coats,  namely, whether  they were  given in September 1982 or on 27-10-1982, as to whether the appellant gave them personally or  sent them  through P.W.  14 and as to whether they were given to induce the recipients to cast their votes in  favour   of  the  appellant  or  only  to  keep  up  the appellant’s promise  made in  August 1982 to send some gifts in return for the gift made to him E earlier as per custom.      The respondent  examined Lisechem, P.W, 11, Lithrongse, P.W.  12,   Murimong  P.W.  13,  B.  Tsarise,  P.W.  14  and Tselongse,  P.W.   15  for  proving  this  item  of  corrupt practice. On the side of the appellant there is the evidence of the  appellant R.W.  1, Chupongse,  R.W. 3, Krishna Kumar R.W., 4 and Yanstsasi R.W, 5 about this charge.      On a consideration of the oral and documentary evidence the learned  Judge of the High Court found that this item of charge of corrupt practice is proved beyond reasonable doubt and he  accordingly allowed  the election  petition and  set aside the appellant’s election as stated above. However, the learned Judge  did not  rule  out  that  the  appellant  had distributed red waist coats in September 1982 as‘observed by him in paragraph 15 of his judgement which will be extracted in due course. 346      The appellant,  R.W. 1  has denied in his evidence that he went  to Lirise  village on  27-10-1982 or  presented the waist coats  personally. He  has stated that he visited that village two  or three days after 15-8-1982 at the request of the Head  Gaon Burah,  R.W. 3,  and was welcomed by the Gaon Burahs and  others where  P.W. 14, then a leading worker and member of  the NNDP  was also  present and  was taken to the house of R.W. 3 and presented with a shawl as per the custom of the  Nagas and that as he had gone there urgently and had not taken  anything to  make a  gift by way of return as per the custom,  he promised  to send  some gifts  later and  he thereafter ordered  under Ex.  dated 2-9-1982 for the making of five  red waist  coats through  Krishna Kumar, R.W. 4 and got them  from him  on 10-9-1982  and sent  them in the same month through  P.W. 14  being distributed to the Gaon Burahs of  Lirise   village.  He  has  stated  that  he  filed  the nomination paper on 13-10-1982 and that P.W. 14 who was Area Council Member joined the Congress (T) party in the midst of the election  and  supported  the  Congress  (I)  candidate. Krishna Kumar, R.W. 4, the proprietor of a tailoring firm at Kohima has corroborated the evidence of R.W. I about placing of the  order Ex.  on 2-9-1982  and taking  delivery of  the waist coats  on 10-9-1982. He has stated that Ex. written by the appellant is signed by him and that as the appellant was a known  person he  delivered the waist coats though Ex. was not surrendered  to him  on 10-9-1982.  The Head Gaon Burah, R.W. 3  has corroborated  the evidence of R.W. l that he met the appellant  at Longkhim  in August 1982 and requested him to visit  Lirise village  and that  he accordingly  came  to Lirise village  and was  received in the Mong Mong month and presented with  a cloth,  and that  the appellant  regretted that he  had not  brought anything to be presented by way of return and  promised  to  send-waist  coats  later.  He  has further stated  that P.W.  14 subsequently told him that the waist coats  had arrived  and  he  thereupon  asked  him  to distribute them  and give  one of  them to him also and they were given  to him  and other  Gaon Burahs. Yanstasi, R.W. 5 has  corroborated   the  evidence   of  R.W.   3  about  the appellant’s  visit,   saying  that  two  months  before  the election held in November 1982 he had gone to Lirise to meet

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the appellant,  and that  the appellant  was received by the villagers and  taken to  the Head  Gaon  Burah’s  house  and presented with  a  sangtam  cloth  and  that  the  appellant regretted that he had not brought any present to be given by him and assured that he would send waist coats later. R.W. 5 was Head Gaon Burah and he became Special 347      D.B. at  Seotsing from 15-9-1983. He has denied that he had worked  for the  appellant in the elections held in 1977 and 1982,  in both  of  which  he  had  been  declared  duly elected. R.W.  3 has not been cross examined seriously about the month of the appellants visit to Lirise village, namely, Mong Mong month, which according to the evidence of R.W.5 is September in-which  the Mong  Mong festival is celebrated by the Nagas.  Ex.C was  not filed in the court at the earliest stage. R.W  I has  stated in his evidence that his wife came across it  after he  had filed  his written statement in the election petition  and gave  it to  him for  being  Produced during the  trial. May  be, noreliance could be placed on Ex to find out when the waist coats were ordered to be made and about when  they were  actually delivered  by R.W.4  to  the appellant. P.W.14  has not been cross-examined regarding the month in  which he  left the  NNDP and  joined Congress  (I) party, which  according to his evidence, was in August 1982. Similarly R.W.  I has  not been  cross-examined  about  when P.W.14 left  the NNDP  and joined  the Congress  (I)  party, which according  to his  evidence, was  in the  midst of the election in  which he  filed the  nomination paper  on 13 10 1982. It  is not  improbable that the appellant had sent the waist coats through P.W.14 who was a prominent member of the NNDP and  the Area  Council member  at that  time for  being distributed to  the Gaon  Burahs by  way of  return  of  the present of the shawl made to him during his earlier visit as per the  custom amongst  Nagas to  exchange gifts during the visit of  important persons  like M.L.As.  and  others.  The appellant was the Deputy Speaker of the Nagaland Legislative Assembly at  that time. The said custom amongst the Nagas is spoken to  even by  respondent P.W.1  who has  stated in his evidence that normally villagers also would present gifts to visiting M.L.As.  and the visiting M.L.As. also would . make presents to the villagers as per the custom of the Nagas. We find no  satisfactory reason  for rejecting  the evidence of R.Ws. 1  to 5. As a matter of fact, even the learned counsel for the  respondent in  this appeal  before the  trial court does  not   appear  to   have   seriously   challenged   the acceptability of  the evidence  of these  witnesses  in  the course Or  his  arguments  before  the  learned  Judge.  The learned   Judge has stated in his judgment in regard to this matter thus:  "It has  been contended  that even  if  it  is assumed that  the respondent  (appellant in this appeal) had taken delivery  of five  red waist  coats on  10-9 -1982  as reflected in Ex. C, this would not rule out the distribution in October  1982. It  is further  submitted by  the  learned counsel for  the petitioner (respondent in this appeal) that even if 348 distribution  of   some  waist  coats  had  taken  place  in September 1982  as deposed by R.Ws. 4 and 5, the same is not enough to  discard the  allegation of  distribution of other waist coats  in October  1982. This submission is apparently right inasmuch  as because  some persons  had been  given in September 1982 in pursuance of assurance made in August 1982 it would  not by itself rule out the giving of such gifts in October, more  so when  the price of one waist coat seems to be around Rs. 100"

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    The sum  of Rs. 100 per piece mentioned by R.W.1 in his evidence is  the price  of each of the blankets which he had distributed to  some persons  in the village in 1981 and not of each of the waist coats given in 1982. It is not the case of any  of the parties that waist coats were presented by or at the  instance of the appellant once in September 1982 and again to  the same  Gaons Burah  in October  1982. Nor is it probable that  only waist  coat would have been presented on both the  occasions to  the same  individuals  Even  if  the evidence of  R.Ws. 1 to 5 is considered to be unsatisfactory to prove  that the  red waist  coats were  presented only in September 1982  and not  in October 1982, that does not mean that the  respondent’s case  that the  red waist  coats were given to P.Ws. 11, 12 and 13 on 27.10.1982 to induce them to cast t  heir votes in favour of the appellant stands proved. The respondent  has to  prove his  case which is disputed by the  appellant   independently  of   the  fact  whether  the appellant has proved his defence or not.      Now we  proceed to  consider the evidence of P.Ws.11 to 15.  Lisechem,  P.W.11,  a  Gaon  Burah  of  Lirise  village mentioned  the  date  of  the  appellant’s  visit  first  as 27.9.1982 and  then corrected  it as  27.10.1982  and  again stated that  he does  not remember  the  month  or  dale  of receipt of  the waist  coat by him from the appellant and he has added that it was after the date of the election. He has stated that  the appellant  came to  his house on 27.10.1982 and gave him a red waist coat and asked him to cast his vote in  his   favour  and   not  to   inform  others  about  the presentation of  the waist  coat and  that  soon  after  the appellant left  his house, P.Ws. 14 and 15 came to his house and asked  him about  what had  been given  to  him  by  the appellant and  he thereupon  showed that  waist coat to them and told them that it was given to him.      Lithrongse’  P.W.12,   another  Gaon  Burah  of  Lirise village has 349 stated that  the appellant came to his house at 4.00 p.m. On 27.10.1982 and  presented a  red waist coat to him and asked him to  cast his  vote in his favour and that soon after the appellant left  his house,  P.Ws 14  and 15  came there  and asked him  as to what was given to him and he thereupon told them that the appellant gave him a waist coat and they asked him to remember it and not to deny it later. He is unable to deny  that  appellant  visited  the  village  in  August  or September 1982  or to  say  whether  it  was  in  1981  when admittedly he  received a  blanket from  the appellant  on a prior occasion  when the appellant was the Deputy Speaker of the Legislative  Assembly. It is seen from his evidence that P.W. 15  belongs to  the Congress (I) party and that P.W. 14 was previously  in the  NNDP and had subsequently joined the Congress (I) party.      Muri Mong,  P.W. 13 of Lirise village has stated in his evidence that  the appellant  came to his village after 4.00 p.m. On  27.10. 1982  and presented  a red waist coat to him and asked  him to  cast his  vote in  his favour  and that a minute after  the appellant  left his house, P.Ws. 14 and 15 came there  and asked  him if  a waist coat was presented to him by  the appellant.  He has  denied that P.W. 14 gave the waist coat  to him  in the first party of September 1982 and that the  appellant did not visit his village or present the waist coat  on 27.10.1982.  He has  stated that he is an old man and that he does not remember months and dates.      Tsarise, P.W.  14 who  was admittedly in the NNDP and a supporter of that party previously claims to have joined the Congress (I)  party in  August 1982.  He has  stated in  his

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evidence that  the  appellant  came  to  Lirise  village  on 27.10.1982 and  visited the  houses of P.W.11, Lithsabha and P.Ws. 12 and 13 in that order at about 4.00 p m. and that he and P.W.15  went to those houses within a few  minutes after the appellant’s  departure  from  there  and  those  persons individually told  them that the appellant gave them a waist coat and  asked them  to cast  their votes in his favour. He has admitted that when he visited the house of P.Ws.11 to 13 and Lithsaba he asked them to remember the date and the time and not  to deny  it later. He has denied that the appellant sent the  red waist  coats through  him in the early part of September 1982  for  distribution  amongst  Gaon  Burahs  of Lirise village.      Tsalongse, P.W.  15 does  not remember  the date of the appellant’s visit  to Lirise  village. He has, stated in his evidence that the 350 appellant came  to the  village in  the election  period and asked the  people to  cast their  votes in  his  favour.  He claims to  have gone  to ‘the  house of  P.W. 14 and to have seen from  there the  appellant visiting  the houses of P.W. 11. Lithsaba  and P.Ws.  12 and  13 one after, the other. He has stated  that he  and P.W.  14 went  to those houses soon after the  appellant left  the places  and they individually told them  that the appellant gave red waist coats and asked them to  cast their  votes in his favour. He has denied that the appellant  neither visited  Lirise village nor presented waist coat on 27.10.1982.      It is  significant to  note that though in the election petition it  is clearly  alleged that the appellant gave red waist coats  to P.Ws. 11 to 13 and Lithsabha at 4.00 p.m. On 27.10.1982 for  inducing them  to cast  their votes  in  his favour in the presence of P.Ws. 14 and 15 and they witnessed the offer  and  reported  the  matter  subsequently  to  the respondent P.Ws.  14 and  15 do  not claim in their evidence personal knowledge about the offer presentation of the waist coats by  the appellant  to these four persons and about the inducement of  the appellant  to cast  their  votes  in  his favour. Admittedly,  P. Al. 14 had asked P.Ws. 11, 12 and 13 to remember  the date  and time  of the appellant’s visit to their houses  where he claims to have gone alongwith P.W. 15 soon after the departure of the appellant from each of those places. It is clear that these three witnesses. P.Ws. I l to 13 have  mentioned the  date and  month of  the  appellant’s visit only  on the  basis of  what  P.W.  14  told  them  to remember. P  W. 14, who was a staunch worker of the NNDP and had switched over to the Congress (I) party to which P.W. 15 belongs, some time before  the  election. and  P.W. 15  are the  interested witnesses. P.W. 15  has stated  in  his  evidence  that  the  appellant appealed to the people of the village to cast their votes in his favour and that he went to the houses of P.Ws. I l to 13 in Lirise  village only thereafter. If that is so, it is not likely that  the appellant,  then the  Deputy Speaker  would have carried  the gunny  or hessian bag containing the waist coats himself  without being  accompanied even  by a  single worker or  sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the  recipients to  cast their votes in his favour. The evidence  of P.Ws. 11 to 13 that P.Ws. 14 and 15 came to their houses  within minutes  after the  appellant left  the place and  asked them  about what  had been given to them by the appellant  and that  when they  told them that red waist coats have been given to them with a request to 351

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favour him with their votes, they asked them to remember the date and  time and  not to deny the matter later-P.W. 14 has stated so  in his  evidence-is artificial and unreliable. We are, therefore,  not impressed  with the evidence of P.Ws.11 to 15  about the  date of  the appellant’s  visit to  Lirise village and the presentation of the red waist coats to P.Ws. 11 to  13 and others. On the evidence of R.Ws. 1 to 5, which we accept,  we find  that the  appellant got the waist coats distributed through  P.Ws. 14  who was then a staunch worker of the  NNDP in  September 1982  long  before  the  election process had started as per the custom of Nagas to make gifts in  return  for  the  gifts  received  by  dignitaries.  The evidence let  in by  the respondent  to prove  this item  of alleged corrupt  practice on  the part  of the  appellant is wholly insufficient  and unacceptable  to prove  the  charge satisfactorily. We  are, therefore,  unable  to  uphold  the judgment of the learned Judge, setting aside the appellant’s election on  the ground  of the alleged corrupt practice. We accordingly allow  the appeal  with costs in both the courts and set aside the judgment of the learned Judge. S.R.                                         Appeal allowed. 352