KALYAN KUMAR GOGOI Vs ASHUTOSH AGNIHOTRI
Bench: J.M. PANCHAL,GYAN SUDHA MISRA, , ,
Case number: C.A. No.-004820-004820 / 2007
Diary number: 29420 / 2007
Advocates: ANUPAM LAL DAS Vs
SANJAY KUMAR VISEN
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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
2
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
3
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
4
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
5
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
6
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
7
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
8
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
9
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
10
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.
11
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
12
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
13
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
14
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
15
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
16
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
17
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
18
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
19
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
20
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
21
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
24
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
28
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,
30
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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