Kalyan Kumar Gogoi Vs Ashutosh Agnihotri

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4820 OF 2007

Kalyan Kumar Gogoi ... Appellant

Versus

Ashutosh Agnihotri and another ... Respondents

J U D G M E N T

J.M. Panchal, J.

This appeal, filed under Section 116A of the

Representation of People Act, 1951 (“the Act” for short), is

directed against judgment dated August 28, 2007,

rendered by the learned Single Judge of the Gauhati High

Court in Election Petition No. 4 of 2006, by which the

prayers made by the appellant to declare the election of

the respondent No. 2, who is returned candidate from

Legislative Assembly Constituency of Dibrugarh, to be

void and to order repoll in Polling Station No. 124 Manik

Dutta L.P. School (Madhya) of 116 Dibrugarh Legislative

Assembly Constituency, are rejected.

2. The facts emerging from the record of the case are

as under: -

A notice was published inviting nominations from

eligible candidates to contest the Assam State Legislative

Assembly Election for 116 Dibrugarh Constituency as

required by Section 31 of the Act read with Rule 3 of the

Conduct of Election Rules, 1961, notifying the schedule

of the election, which was as under: -

1. Issue of notification 10.3.2006

2. Last date for making nomination

17.3.2006

3. Scrutiny of nomination papers 18.3.2006

4. Last date for withdrawal of candidature

20.3.2006

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5. Date of poll

03.4.2006

6. Counting of votes 11.5.2006

7. Date before which election process Shall be completed 20.5.2006

The appellant filed his nomination papers to contest

the Assam State Legislative Assembly Elections from 116

Dibrugarh Legislative Assembly Constituency as an

approved candidate of the Indian National Congress.

Along with him, the respondent No. 2 herein filed his

nomination papers as the candidate of Bhartiya Janata

Party for the said constituency. There were six other

candidates also, who were in fray and had filed their

nomination papers for contesting the said election. Upon

scrutiny of the nomination papers of the eight

candidates, papers of seven candidates including those of

the appellant and the respondent No. 2 were declared

valid by the Returning Officer. The polling took place for

the Constituency in question on April 3, 2006. It may be

mentioned that in 116 Dibrugarh Legislative Assembly

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Constituency, in all there were 126 notified polling

stations, names/particulars of which were published

under Section 25 of the Act. On the date of polling one

notified polling station, i.e., Polling Station No. 124 was

not set up in the notified school, namely, Manik Dutta

L.P. School (Madhya) and instead, the polling was

conducted in another school, namely, Chiring Gaon

Railway Colony L.P. School, which was admittedly not a

notified polling station. It is not in dispute that the

polling in the said non-notified polling station started at

7.00 A.M. The case of the appellant is that as the polling

in the non-notified polling station continued up to 12.30

P.M., there was confusion and chaos amongst the voters

and many of them went away without casting their votes.

The appellant claims that his election agent lodged

complaint before the Deputy Commissioner, Dibrugarh,

who was also the Returning Officer, for the constituency

concerned and, therefore, the polling station was shifted

to the notified school and was made functional later on.

It is necessary to mention that out of the total 1050

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voters whose names were registered at the polling station

located at the school notified, 557 voters had cast their

votes, which constitute, according to the appellant,

53.8% of votes while the total polling percentage in the

entire constituency was 67.23%. The counting of the

votes for the election of the said constituency took place

on May 12, 2006 and results were declared on the same

day. The respondent No. 2 was declared elected having

polled 28,424 votes as the appellant could secure 28,249

votes out of total valid votes of 79,736. Thus the margin

of the votes between the appellant and the respondent

No. 2 was of 175 votes.

On the same day, the appellant lodged a complaint

before the Returning Officer demanding repoll at the

polling station concerned inter alia making grievance that

the shifting of the polling station from the notified area to

Chiring Gaon Railway Colony L.P. School was illegal and

deprived many voters from exercising their right of

franchise due to utter confusion and/or chaos. The

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appellant also made grievance about the manner in

which the Electronic Voting Machines were shifted from

Chiring Gaon Railway Colony L.P. School to Manik Dutta

L.P. School (Madhya). In response to this complaint the

Deputy Commissioner and District Election Officer,

Dibrugarh, addressed a letter dated May 20, 2006 to the

appellant mentioning that the problem about the

functioning of Polling Station notified was solved

immediately on the day of the polling under the guidance

of the Election Observer in the presence of the Zonal

Officer, Sector Officer of the Constituency Magistrate and

Polling Agents and as the complaint lodged by the

appellant was found to be an after thought, the same was

not entertained.

3. Thereupon, the appellant filed Election Petition No.

4 of 2006 on June 21, 2006 before the Gauhati

High Court under Sections 80, 80(A) and 81 of the

Act seeking a declaration that the election of the

respondent No. 2 from constituency concerned was

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void and an order directing repolling in Polling

Station notified be made.

4. The respondent No. 2 filed his written statement

mentioning amongst other facts that the shifting of

the polling station from a notified place to a non-

notified place and thereafter rectifying the defect did

not vitiate the election nor had materially affected

his result of the election. The respondent No. 1, i.e.,

Mr. Ashutosh Agnihotri, who was then District

Election Officer, Dibrugarh and Returning Officer,

filed his reply mentioning, inter alia, that though in

the morning polling was held at a non-notified

polling station, namely, Chiring Gaon Railway

Colony L.P. School instead of Manik Dutta L.P.

School (Madhya), voters were not deprived of their

right of casting vote. The respondent No. 1 further

stated that the appellant had never raised, prior to

the declaration of the result, any objection or made

any complaint about initial voting having taken

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place at the polling station which was not notified or

about subsequent shifting of the polling station to

the notified place.

5. On the basis of pleadings of the parties, necessary

issues for determination were framed and evidence

was led by the parties. The appellant examined in

all twelve witnesses whereas the respondent No. 2

examined six witnesses.

6. According to the learned Judge since the election

petition was filed challenging the result of the

returned candidate on the ground of non-

compliance of the provisions of the Act and the

Rules of 1961, the election petitioner, i.e., the

appellant was required to prove such non-

compliance and also that such non-compliance had

materially affected the result of the election as proof

of mere non-compliance of any of the provisions of

the Act or the Rules framed thereunder by itself

without showing that such non-compliance had

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materially affected the result of the election of the

returned candidate would not be sufficient to

declare the election of the respondent No. 2 void

under Section 100(1)(d)(iv) of the Act. The learned

Judge held that the evidence adduced established

that the distance between the two schools was

hardly about 100 meters. The learned Judge also

noticed that the evidence established that polling in

the Chiring Gaon Railway Colony L.P. School had

continued only up to 9.30 A.M. and after shifting

the polling station to the notified school at around

9.45 A.M., the polling was resumed/had restarted

at about 9.55 A.M. On consideration of the

evidence, the learned Judge concluded that the

Polling Station No. 124 was not set up in the

notified place initially but was subsequently set up

at the notified place and thus there was breach of

provisions of Sections 25 and 56 of the Act as well

as Rule 15 of the Rules of 1961. The learned Judge

examined the contention of the appellant that the

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Presiding Officer having found that the Polling

Station No. 124 was set up in a non-notified place

was duty bound to adjourn the polling which was

taking place at the said polling station in exercise of

powers conferred by Section 57(1) of the Act and the

Presiding Officer having not done so, the election of

the respondent No. 2 was liable to be set aside.

However, the learned Judge found that the

appellant had neither pleaded violation of any of the

provisions of Section 57 of the Act nor led evidence

to prove that the setting up of the Polling Station in

a non-notified place and its subsequent shifting to

the notified place amounted to ‘sufficient cause’

within the meaning of Section 57 of the Act and,

therefore, concluded that it was not necessary to

decide the said contention. On examination, the

contention of the appellant, that the error and/or

irregularity, namely, setting up of the polling station

at the wrong place and subsequent shifting of the

same at the notified place, committed during the

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conduct of the election, should have been reported

by the Returning Officer forthwith to the Election

Commission and failure to so report, has vitiated

the election of the respondent No. 2, was found to

be without any substance because, according to the

learned Judge, there was no pleading relating to

breach of Section 58(1)(b) or commission of

irregularity and/or error likely to vitiate the poll and

it was further held that question of taking steps

under Section 58 of the Act would arise only in a

case where destruction of ballot boxes, E.V.M. is

pleaded and proved and not otherwise. The case of

the appellant that shifting was made to the notified

place without sealing the EVM and other election

materials also, was not accepted by the learned

Judge because except the appellant, no other

person present at that point of time at Chiring Gaon

Railway Colony L.P. School had stated anything

about the non-sealing of the EVM and other election

materials.

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7. Having held that there was non-compliance of the

provisions of Sections 25 and 56 of the Act and Rule

15 of 1961 Rules, the learned Judge further

examined the question whether such non-

compliance had materially affected the result of the

election. After noticing that the question as to

whether the infraction of law has materially affected

the result of the election or not, is purely a question

of fact, it was held that no presumption or any

inference of fact can be raised that the result of the

election of the returned candidate must have been

materially affected and the fact that such infraction

had materially affected the result of the election,

must be proved by adducing cogent and reliable

evidence. The learned Judge thereafter discussed

the evidence on record and concluded that none of

the witnesses had stated that a large number of

voters had left the notified place without casting

their votes because of non-availability of the polling

facility at the notified place. In view of the above

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mentioned conclusions, the learned Judge held that

initially voting, which had taken place at the non-

notified place, had not materially affected the

election result of the respondent No. 2 and

dismissed the election petition by the impugned

judgment, giving rise to the instant appeal.

8. This Court has heard the learned counsel for the

parties at length and in great detail. This Court has

also considered the documents forming part of the

present appeal.

9. The first grievance made by Dr. Rajiv Dhavan,

learned senior counsel for the appellant, was that a

wrong test of burden of proof, namely, absolute test

was adopted by the learned Judge of the High

Court, which could not have been adopted in view of

the provisions of Section 100(1)(d)(iv) of the Act and

the test of either broad probabilities or the test of

sufficiency of evidence should have been applied

while considering the question whether polling at

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the non-notified place and curtailing of time of

voting had materially affected the result of the

election. According to the learned counsel for the

appellant, the hearsay rule on appreciation of

evidence cannot be made applicable while

determining the question whether polling at the

non-notified place and curtailing of time of voting

had materially affected the result of the election, so

far as a candidate contesting election and his agents

are concerned and, therefore, reliable testimony of

the appellant and that of his agents should have

been accepted by the learned Judge. According to

the learned counsel for the appellant, one of the

reasons given by the High Court for disbelieving

some of the witnesses was that though they were

illiterate, they had filed affidavits in English

language through their lawyer and on being asked

about the contents of the affidavit, they had stated

that they were not in position to explain the same,

forgetting the material fact that they had acted

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through their lawyer and the lawyer on the basis of

instructions given by them had prepared their

affidavits. The learned counsel argued that the

reasons assigned by the learned Judge in the

impugned judgment for dismissing the Election

Petition filed by the appellant are not only

erroneous but contrary to the evidence on record

and, therefore, this Court should accept the appeal.

10. Mr. Nagendra Rai, learned counsel for the

respondent No. 2, argued that burden of proof was

rightly placed on the appellant in view of several

reported decisions of this Court, which firmly lay

down the principle that the ground pleaded for

setting aside an election, must be proved beyond

reasonable doubt and, therefore, no error can be

said to have been committed by the learned Judge

in applying the principle of burden of proof to the

facts of the case. According to the learned counsel

for the respondent No. 2, hearsay evidence remains

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hearsay and the said rule has to be applied to all

matters including the determination of the question

whether voting at the non-notified place and

curtailing of time of voting had materially affected

the result of the election of the respondent No. 2. It

was, therefore, pleaded that it is not correct to

argue that hearsay rule cannot be made applicable

while determining the validity of election of the

returned candidate under Section 100(1)(d)(iv) of the

Act. What was maintained before this Court by the

learned counsel for the respondent No. 2 was that

on behalf of the illiterate people, affidavits were

prepared by lawyer without making the illiterate

people aware about the contents of the affidavits

and, therefore, the High Court was justified in

brushing aside the evidence of those witnesses

while considering the question whether polling at a

non-notified place had, in fact, affected the result of

election materially. The learned counsel submitted

that cogent and convincing reasons have been given

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by the learned Judge in the impugned judgment for

dismissing the election petition filed by the

appellant and, therefore, this Court should not

interfere with the same in the instant appeal, more

particularly, when the period left at the disposal of

the respondent No. 2, so far as his term as MLA is

concerned, is less than a year.

11. The first question to be considered is whether there

had been or not a breach of the Act and the Rules in

the conduct of the election at this constituency. It

is hardly necessary for this Court to go over the

evidence with a view to ascertaining whether there

was or was not a breach of the Act and the Rules in

the conduct of the election concerned. Having read

the evidence on record, this Court is in entire

agreement with the decision of the learned Single

Judge that by the change of venue of casting votes,

breach of the provisions of Sections 25 and 56 of

the Act read with Rule 15 of the Rules of 1961 was

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committed by the officials who were in charge of the

conduct of the election at this constituency.

12. This shows that the matter is governed by Section

100(1)(d)(iv) of the Act. The question still remains

whether the condition precedent to the avoidance of

the election of the returned candidate which

requires proof from the election petitioner, i.e., the

appellant that the result of the election had been

materially affected insofar as the returned

candidate, i.e., the respondent No. 2, was

concerned, has been established in this case.

13. This Court finds that the learned Judge has

recorded a finding that cogent and reliable evidence

should be adduced by an election petitioner when

election of the successful candidate is challenged on

the ground of breach of provisions of Section

100(1)(d)(iv) of the Act. The contention advanced by

Dr. Rajiv Dhavan, learned counsel for the appellant,

that the test of either broad probabilities or the test

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of sufficiency of evidence should be applied while

deciding the question whether the result of the

elected candidate is materially affected or not

cannot be accepted. Section 100(1)(d)(iv) of the Act

reads as under: -

“100. Grounds for declaring election to be void. – (1) Subject to the provisions of sub- section (2) if the High Court is of opinion –

(a) to (c) ...........................................

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected –

(i) to (iii) ............................................

(iv) by any non-compliance with the provisions of the Constitution or of this Act or any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.”

14. It may be mentioned that here in this case non-

compliance with the provisions of the

Representation of People Act, 1951 and the Election

Rules of 1961 was by the officers, who were in-

charge of the conduct of the election and not by the

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elected candidate. It is true that if clause (iv) is read

in isolation, then one may be tempted to come to

the conclusion that any non-compliance with the

provisions of the Constitution or of the Act of 1951

or any Rules of 1961 Rules or orders made under

the Act would render the election of the returned

candidate void, but one cannot forget the important

fact that clause (d) begins with a rider, namely, that

the result of the election, insofar as it concerns a

returned candidate, must have been materially

affected. This means that if it is not proved to the

satisfaction of the Court that the result of the

election insofar as it concerns a returned candidate

has been materially affected, the election of the

returned candidate would not be liable to be

declared void notwithstanding non-compliance with

the provisions of the Constitution or of the Act or of

any Rules of 1961 Rules or orders made thereunder.

It is well to remember that this Court has laid down

in several reported decisions that the election of a

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returned candidate should not normally be set aside

unless there are cogent and convincing reasons.

The success of a winning candidate at an election

cannot be lightly interfered with. This is all the

more so when the election of a successful candidate

is sought to be set aside for no fault of his but of

someone else. That is why the scheme of Section

100 of the Act, especially clause (d) of sub-Section

(1) thereof clearly prescribes that in spite of the

availability of grounds contemplated by sub-clauses

(i) to (iv) of clause (d), the election of a returned

candidate shall not be voided unless and until it is

proved that the result of the election insofar as it

concerns a returned candidate is materially

affected. The volume of opinion expressed in

judicial pronouncements, preponderates in favour of

the view that the burden of proving that the votes

not cast would have been distributed in such a

manner between the contesting candidates as would

have brought about the defeat of the returned

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candidate lies upon one who objects to the validity

of the election. Therefore, the standard of proof to

be adopted, while judging the question whether the

result of the election insofar as it concerns a

returned candidate is materially affected, would be

proof beyond reasonable doubt or beyond pale of

doubt and not the test of proof as suggested by the

learned counsel for the appellant.

This part of the case depends upon the ruling of

this Court in Vashisht Narain Sharma vs. Dev Chandra

(1955) 1 SCR 509 : AIR 1954 SC 513. In that case,

there was a difference of 111 votes between the returned

candidate and the candidate who had secured the next

higher number of votes. One candidate by name of Dudh

Nath Singh was found not competent to stand election

and the question arose whether the votes wasted on

Dudh Nath Singh, if they had been polled in favour of

remaining candidates, would have materially affected the

fate of the election. Certain principles were stated as to

22

how the probable effect upon the election of the

successful candidate, of votes which were wasted (in this

case effect of votes not cast) must be worked out. Two

witnesses were brought to depose that if Dudh Nath

Singh had not been a candidate for whom no voting had

to be done, the voters would have voted for the next

successful candidate. Ghulam Hasan, J. did not accept

this kind of evidence. It is observed as follows: -

“It is impossible to accept the ipse dixit of witnesses coming for one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and the election must stand.”

While interpreting the words “the result of the election

has been materially affected” occurring in Section

100(1)(c), this Court in the said case notified that these

words have been the subject of much controversy before

the Election Tribunals and the opinions expressed were

23

not uniform or consistent. While putting the controversy

at rest, it was observed as under: -

“These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate.”

In another para in the said decision it is observed: -

“It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognized that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged.”

15. Again, in Paokai Haokip vs. Rishang and others

AIR 1969 SC 663, the appellant who was the returned

candidate from the Outer Manipur Parliamentary

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Constituency had received 30,403 votes as against the

next candidate, who had received 28,862 votes. There

was thus a majority of 1541 votes.

The candidate, who had secured the second largest

number of votes, had filed election petition. The main

ground of attack, which had succeeded in the Judicial

Commissioner’s Court, was that polling was disturbed

because of numerous circumstances. These were that

the polling centres were, in some cases, changed from the

original buildings to other buildings of which due

notification was not issued earlier, with the result that

many of the voters who had gone to vote at the old polling

booths had found no arrangement for voting and rather

than going to the new polling station, had gone away

without casting their votes. The second ground was that

owing to firing by the Naga Hostiles, the voting at some of

the polling stations was disturbed and almost no votes

were cast. The third ground was that the polling hours,

at some stations, were reduced with the result that some

25

of the voters, who had gone to the polling station, were

unable to cast their votes.

This Court considered the evidence led in the said

case and after concluding that by the change of venue

and owing to the firing, a number of voters had, probably

failed to record their votes, held that the matter was

governed by Section 100(1)(d)(iv) of the Act. Having held

so, the Court then proceeded to consider the question

whether the condition precedent to the avoidance of the

election of the returned candidate, which requires proof

from the election petitioner that the result of the election

had been materially affected insofar as the returned

candidate was concerned, was established. After

extensively quoting from Vashisht Narain Sharma’s case

the Court noticed that witnesses were brought forward to

state that a number of voters did not vote because of

change of venue or because of firing and that they had

decided to vote en bloc for the election petitioner. This

Court, on appreciation of evidence led in that case held

26

that the kind of evidence adduced was merely an

assertion on the part of the witnesses, who could not

have spoken for 500 voters for the simple reason that

casting of votes at an election depended upon a variety of

factors and it was not possible for anyone to predict how

many or which proportion of votes would have gone to

one or the other of the candidates. Therefore, the Court

refused to accept the statement even of a Headman that

the whole village would have voted in favour of one

candidate to the exclusion of the others. The Court in

the said case examined the polling pattern in the election

and after applying the law of averages, concluded that it

was demonstrated at once that the election petitioner

could not have expected to wipe off the large arrears

under which he was labouring and that he could not

have, therefore, made a successful bid for the seat, even

with the assistance of the voters who had not cast their

votes. Noting that the learned Judicial Commissioner

had reached the conclusion by committing the same

error, which was criticized in Vashisht Narain Sharma’s

27

case, this Court observed that the learned Judicial

Commissioner had taken the statement of the witnesses

at their worth and had held on the basis of those

statements that all the votes that had not been cast,

would have gone to the election petitioner. This Court

ruled in the said case that for this approach adopted by

the learned Judicial Commissioner there was no

foundation in fact, it was a surmise and it was anybody’s

guess as to how these people who had not voted, would

have actually voted. This Court, on appreciation of

evidence, held that the decision of the learned Judicial

Commissioner that the election was in contravention of

the Act and the Rules was correct, but that did not alter

the position with regard to Section 100(1)(d)(iv) of the Act,

which required that election petitioner must go a little

further and prove that the result of the election had been

materially affected. After holding that the election

petitioner had failed to prove that the result of the

election insofar as it concerned the returned candidate,

had been materially affected, the appeal was allowed and

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it was declared that the election of the returned

candidate would stand. What is important to notice is

that while allowing the appeal of the returned candidate,

the Court has made following pertinent observations

regarding burden of proof which hold the field even

today: -

It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way of determining the burden, the law should say it and not the courts. It is only in given instances that, taking the law as it is, the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not.”

16.In the light of the principles stated above what this

Court has to see is whether the burden has been

successfully discharged by the election petitioner by

demonstrating to the Court positively that the poll

would have gone against the returned candidate if the

breach of the provisions of the Act and the Rules had

29

not occurred and proper poll had taken place at the

notified polling station.

17.Before considering the question posed above, it would

be relevant to deal with the argument raised by the

learned counsel for the appellant that hearsay rule of

appreciation of evidence would not be applicable to

the determination of the question whether the result

of the election of the respondent No. 2 was materially

affected because of change of venue of the polling

station.

18.The word ‘evidence’ is used in common parlance in

three different senses : (a) as equivalent to relevant (b)

as equivalent to proof and (c) as equivalent to the

material, on the basis of which courts come to a

conclusion about the existence or non-existence of

disputed facts. Though, in the definition of the word

“evidence” given in Section 3 of the Evidence Act one

finds only oral and documentary evidence, this word

is also used in phrases such as : best evidence,

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circumstantial evidence, corroborative evidence,

derivative evidence, direct evidence, documentary

evidence, hearsay evidence, indirect evidence, oral

evidence, original evidence, presumptive evidence,

primary evidence, real evidence, secondary evidence,

substantive evidence, testimonial evidence, etc. The

idea of best evidence is implicit in the Evidence Act.

Evidence under the Act, consists of statements made

by a witness or contained in a document. If it is a

case of oral evidence, the Act requires that only that

person who has actually perceived something by that

sense, by which it is capable of perception, should

make the statement about it and no one else. If it is

documentary evidence, the Evidence Act requires that

ordinarily the original should be produced, because a

copy may contain omissions or mistakes of a

deliberate or accidental nature. These principles are

expressed in Sections 60 and 64 of the Evidence Act.

31

19.The term ‘hearsay’ is used with reference to what is

done or written as well as to what is spoken and in its

legal sense, it denotes that kind of evidence which

does not derive its value solely from the credit given to

the witness himself, but which rests also, in part, on

the veracity and competence of some other person.

The word ‘hearsay’ is used in various senses.

Sometimes it means whatever a person is heard to

say. Sometimes it means whatever a person declares

on information given by someone else and sometimes

it is treated as nearly synonymous with irrelevant.

The sayings and doings of third person are, as a rule,

irrelevant, so that no proof of them can be admitted.

Every act done or spoken which is relevant on any

ground must be proved by someone who saw it with

his own eyes and heard it with his own ears.

20.The argument that the rule of appreciation of hearsay

evidence would not apply to determination of the

question whether change of venue of polling station

32

has materially affected the result of the election of the

returned candidate, cannot be accepted for the simple

reason that, this question has to be determined in a

properly constituted election petition to be tried by a

High Court in view of the provisions contained in Part

VI of the Representation of the People Act, 1951 and

Section 87(2) of the Act of 1951, which specifically

provides that the provisions of the Indian Evidence

Act, 1872, shall subject to the provisions of the Act,

be deemed to apply in all respects to the trial of an

election petition. The learned counsel for the

appellant could not point out any provision of the Act

of 1951, which excludes the application of rule of

appreciation of hearsay evidence to the determination

of question posed for consideration of this Court in

the instant appeal.

21.Here comes the rule of appreciation of hearsay

evidence. Hearsay evidence is excluded on the ground

that it is always desirable, in the interest of justice, to

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get the person, whose statement is relied upon, into

court for his examination in the regular way, in order

that many possible sources of inaccuracy and

untrustworthiness can be brought to light and

exposed, if they exist, by the test of cross-

examination. The phrase “hearsay evidence” is not

used in the Evidence Act because it is inaccurate and

vague. It is a fundamental rule of evidence under the

Indian Law that hearsay evidence is inadmissible. A

statement, oral or written, made otherwise than a

witness in giving evidence and a statement contained

or recorded in any book, document or record

whatever, proof of which is not admitted on other

grounds, are deemed to be irrelevant for the purpose

of proving the truth of the matter stated. An assertion

other than one made by a person while giving oral

evidence in the proceedings is inadmissible as

evidence of any fact asserted. That this species of

evidence cannot be tested by cross-examination and

that, in many cases, it supposes some better

34

testimony which ought to be offered in a particular

case, are not the sole grounds for its exclusion. Its

tendency to protract legal investigations to an

embarrassing and dangerous length, its intrinsic

weakness, its incompetency to satisfy the mind of a

Judge about the existence of a fact, and the fraud

which may be practiced with impunity, under its

cover, combine to support the rule that hearsay

evidence is inadmissible.

22.The reasons why hearsay evidence is not received as

relevant evidence are: (a) the person giving such

evidence does not feel any responsibility. The law

requires all evidence to be given under personal

responsibility, i.e., every witness must give his

testimony, under such circumstance, as expose him

to all the penalties of falsehood. If the person giving

hearsay evidence is cornered, he has a line of escape

by saying “I do not know, but so and so told me”, (b)

truth is diluted and diminished with each repetition

35

and (c) if permitted, gives ample scope for playing

fraud by saying “someone told me that...........”. It

would be attaching importance to false rumour flying

from one foul lip to another. Thus statement of

witnesses based on information received from others

is inadmissible.

23.In the light of the above stated principles of law, this

Court will have to decide the question whether it is

proved by the appellant, beyond reasonable doubt

that the result of the election, insofar as the

respondent No. 2 is concerned, was materially affected

because of change of venue of the polling station. The

first attempt made by the appellant is to establish

that about 200 to 300 voters had gone away without

casting their votes when they found that no

arrangements were made for casting votes at the

notified place.

24. The evidence in this case, which has been brought out

by the election petitioner, is the kind of evidence

36

which has been criticized by this Court in several

reported decisions. The analysis of the evidence

tendered by the witnesses of the appellant makes it

very clear that none of them had seen big number of

voters, i.e., 200/300 returning back without casting

their votes, because the polling station was initially

arranged at a non-notified place and was

subsequently shifted to the notified place. In fact, a

close analysis of the evidence tendered by the

witnesses of the appellant indicates that they have

exaggerated the facts. For example, Dr. Kalyan

Kumar Gogoi, i.e., the appellant as PW-1, had stated

in his evidence that the distance between Manik

Dutta L.P. School (Madhya) and Chiring Gaon Railway

Colony L.P. School was about one and half kilometers

whereas as a material fact, the distance found was

hardly 440 feet and the schools were visible from each

other. What is relevant to notice is that his evidence

further discloses that he was informed by his workers,

i.e., Durlav Kalita and Pushpanath Sharma that a

37

large number of voters could not cast their votes. He

does not claim that he himself had seen the voters

returning because of specification of non-notified

place as place for voting. The worker Durlav Kalita

has not been examined by appellant and the second

worker Pushpanath Sharma, who has been examined

as PW3, has not been found to be reliable by this

Court, hence the assertion of the appellant that he

was told by his abovenamed two workers that a large

number of voters had gone away without casting their

votes when they found that no arrangements for

casting votes at the notified place were made, will

have to be regarded as hearsay evidence and,

therefore, inadmissible in evidence. The evidence of

Dugdha Chandra Gogoi PW-2 establishes that he was

the election agent of the appellant and according to

him he had informed the appellant that about 200 to

300 voters had gone away when they had found that

no arrangements were made for voting at the notified

venue. However, he has in no uncertain terms stated

38

during his cross-examination that he had set up

booths at Manik Dutta L.P. School (Madhya) Polling

Station as well as Chiring Gaon Railway Colony L.P.

School. If that was so, those who had come for voting

at Manik Dutta L.P. School (Madhya) Polling Station

between 7.00 A.M. to 9.45 A.M., could have been

directed to go to Chiring Gaon Railway Colony L.P.

School Polling Station and vice versa after the polling

station was shifted from non-notified place to the

notified place. Therefore, his assertion that he had

informed the appellant that about 200 to 300 voters

had gone away without casting their votes when it was

found by them that no voting arrangements were

made at the notified venue, does not inspire

confidence of this Court. Similarly, witness

Pushpanath Sharma, examined by the appellant as

PW-3, has stated that on reaching Manik Dutta L.P.

School (Madhya), he had learnt that the polling

station was not set up there and there was utter

confusion. The witness has thereafter stated that he

39

had enquired about non-setting up of polling station

at the notified place and learnt that, unable to locate

the polling station set up at a place which was not

notified, many voters had left without casting their

votes. This is nothing else but hearsay evidence and

it would be hazardous to act upon such an evidence

for the purpose of setting aside the election of an

elected candidate. Moreover, this Court finds that

PW-6, i.e., Sri Pranjal Borah, has stated that on the

day of the poll, i.e., on April 3, 2006 at about 11.30

O’clock in the morning when he went to cast his vote

at 124 Manik Dutta L.P. School (Madhya) polling

station, i.e., the notified place, he found that the

polling station was not set up there. This has turned

out to be utter lie because as per the finding recorded

by the learned Single Judge on appreciation of

evidence with which this Court completely agrees on

re-appreciation of evidence, is that by 9.45 A.M. the

notified Polling Station had started functioning fully

and the voters were found standing in queue to cast

40

their votes. Similar is the state of affairs so far as

evidence of witness No. 8 Smt. Subarna Borah and

witness No. 9 Smt. Pratima Borah are concerned. It

means that the witnesses are not only unreliable but

have tendency to state untrue facts. One of the

grounds mentioned by the learned Single Judge of the

High Court for disbelieving the witnesses of the

appellant is that they were illiterate, but their

affidavits were got prepared in English language

through lawyer which were treated as their

examination-in-chief. There is no denial by the

appellant that the witnesses were illiterate and that

their affidavits were prepared by the lawyer and were

presented before the Court. The persons, who had

put their thumb marks on the affidavits, which were

in English language, could have been hardly made

aware about the English contents of the affidavits

sworn by them. The evidence tendered by the

appellant to establish that about 200 to 300 voters

had gone back on not finding the polling station at the

41

notified place has not inspired the confidence of the

learned Single Judge of the High Court, who had

advantage of observing demeanour of the witnesses.

On re-appreciation of the said evidence it has not

inspired confidence of this Court also. Under the

circumstances, this Court finds that it is hazardous to

rely upon the evidence adduced by the appellant for

coming to the conclusion that because of specification

of wrong place as polling station, the result, so far as

the same concerns respondent No. 2, was materially

affected. It is relevant to notice that the election in

question had taken place on April 3, 2006 and the

result was declared on May 11, 2006. However, for

the first time the appellant filed a complaint regarding

polling having taken place at a non-notified place only

on May 12, 2006. Further, in the belatedly filed

complaint, it was never claimed by the appellant that

casting of the votes had taken place initially at a non-

notified place and, therefore, about 200 to 300 voters,

who had gone to the notified place to cast their votes,

42

had returned back without casting their votes, when

they had learnt that the polling station was not set up

at the notified place. Similarly, in the Election

Petition it is nowhere mentioned by the appellant that

before the shifting of the notified place polling station,

voters, who were roughly 200 to 300 in number, had

to return back without casting their votes. The

evidence adduced by the appellant does not establish

beyond reasonable doubt that about 200 to 300 voters

had gone away, without casting their votes when it

was found by them that no arrangements were made

for casting votes at the notified place. The finding

recorded by the learned Single Judge on this point is

eminently just and is hereby upheld. What is relevant

to notice is that out of 1050 voters, whose names were

registered at the notified polling station, 557 voters

had cast their votes. It means that the voting

percentage was 53.8%. The assertion made by the

witnesses of the appellant that roughly about 200 to

300 voters could not cast their votes because of

43

shifting of official polling station, cannot be believed

for the other weighty reason that the general pattern

of polling not only in this constituency but in the

whole of India is that all the voters do not always go to

the polls. Voting in India is not compulsory and,

therefore, no minimum percentage of votes has been

prescribed either for treating an election in a

constituency as valid or for securing the return of a

candidate at the election. The voters may not turn up

in large number to cast their votes for variety of

reasons such as an agitation going on in the State

concerned on national and/or regional issues or

because of boycott call given by some of the

recognized State parties, in the wake of certain

political developments in the State or because of

disruptive activities of some extremist elements, etc.

It is common knowledge that voting and abstention

from voting as also the pattern of voting, depend upon

complex and variety of factors, which may defy

reasoning and logic. Depending on a particular

44

combination of contesting candidates and the political

party fielding them, the same set of voters may cast

their votes in a particular way and may respond

differently on a change in such combination. Voters,

it is said, have a short lived memory and not an

inflexible allegiance to political parties and

candidates. Election manifestos of political parties

and candidates in a given election, recent happenings,

incidents and speeches delivered before the time of

voting may persuade the voters to change their mind

and decision to vote for a particular party or

candidate, giving up their previous commitment or

belief. In Paokai Haokip vs. Rishang AIR 1969 SC

663, this Court has taken judicial notice of the fact

that in India all the voters do not always go to the

polls and that the casting of votes at an election

depends upon a variety of factors and it is not

possible for anyone to predicate how many or which

proportion of votes will go to one or the other of the

candidate. Therefore, 200 to 300 voters not casting

45

their votes can hardly be attributed to change of

venue of the polling station, though the evidence on

record does not indicate at all that about 200 to 300

voters had gone back without casting their votes.

Even if it assumed for sake of argument that about

200 to 300 voters had gone away without casting their

votes on learning that no polling station was set up at

the notified place, this Court finds that no evidence

relating to the pattern of voting as was disclosed in

the various polling booths at which the voters had in

fact gone, was adduced by the appellant, as was

adduced in case of Paokai Haokip (supra) on the

basis of which the law of averages was arrived at

against the election petitioner therein. Therefore, it is

very difficult to accept the ipse dixit of the appellant

and his witnesses that if 200 to 300 had not gone

away without casting their votes due to non-setting up

of notified polling station, they would have voted in

favour of the appellant. There is no warrant for

drawing presumption that those, who had gone away

46

without casting votes, would have cast their votes in

favour of the appellant, if there had been no change of

venue of voting. Vashisht Narain’s case insists on

proof. In the opinion of this Court, the matter cannot

be considered on possibility. There is no room for a

reasonable judicial guess.

25.The heads of substantive rights in Section 100(1) are

laid down in two parts: the first dealing with

situations in which the election must be declared void

on proof of certain facts and the second in which the

election can only be declared void if the result of the

election, insofar as it concerns the returned

candidate, can be held to be materially affected on

proof of some other facts. The appellant has totally

failed to prove that the election of the respondent No.

2, who is returned candidate, was materially affected

because of non-compliance with the provisions of the

Representation of the People Act, 1951, or Rules or

Orders made under it.

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26.On the facts and in the circumstances of the case this

Court is of the firm opinion that the learned Single

Judge of the High Court did not commit any error in

dismissing the petition filed by the appellant

challenging the election of the respondent No. 2.

Therefore, the appeal, which lacks merits, deserves to

be dismissed.

27.For the foregoing reasons, the appeal fails and is

dismissed. There shall be no order as to costs.

.....................................J. [J.M. Panchal]

.....................................J. [Gyan Sudha Misra]

New Delhi; January 18, 2011.

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KALYAN KUMAR GOGOI Vs ASHUTOSH AGNIHOTRI

KALYAN KUMAR GOGOI Vs ASHUTOSH AGNIHOTRI