Deuri Vs. Premodhar Bora and Anr  Insc 5 (5 January 2004)
& S.B. Sinha. S.B. Sinha, J:
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
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.
full particulars of alleged corrupt practices had been set forth in the petition
which are as under:
"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 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.
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
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
witnessed the meeting and clearly saw the respondent No. 1 hurling the above
language prejudicially affecting the prospect of the election of the
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.
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.
regard the meeting dated 25.4.2001, it was held:
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
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 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
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:
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.
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.
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.
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 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.
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.
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 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 Sivadasan and another, 2003 AIR SCW 6306).
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.
of hatred on communal basis is an offence.
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.
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.
the manner in which the alleged corrupt practice has taken place does not
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.
SCC 5], this Court held:
Newspaper reports by themselves are not evidence of the contents thereof.
reports are only hearsay evidence.
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. 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.
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.
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.
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
the said test also, the evidence of P.W. 7 and P.W. 8 cannot be believed.
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
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.
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.
the aforementioned reasons, we are of the opinion that the judgment of the High
Court cannot be faulted.
appeal, therefore, being devoid of any merit is dismissed. No costs.