Pradip Buragohain vs Pranati Phukan

announced by the Returning Officer for the said

constituency, however, declared the respondent Smt.

Pranati Phukan set up by the National Congress Party

elected by a margin of nearly 20,000 votes over the

appellant who emerged as her nearest rival. Aggrieved by

the outcome of the electoral contest the appellant filed

election petition No.5 of 2006 before the High Court at

Gauhati assailing the election of the respondent on the

ground that the same was vitiated by several acts of corrupt

practice allegedly committed by the respondent. The 3

appellant enumerated seven specific instances of corrupt

practices in support of his case. The first of these acts of

corrupt practices alleged by the appellant was committed on

29th March, 2006 at Langherjan Tea Estate where some

voters residing in the said locality and enrolled in the

electoral rolls for polling stations no.38 and 39 of the

constituency had assembled. According to the appellant,

when the respondent arrived at the place mentioned above

she requested the gathering to cast their votes in her favour

and gave Rs.500/- each to the voters present there.

3. The second act of corrupt practice allegedly committed

by the respondent was on the same day at about 9.00 p.m.

when she along with her supporters and party workers went

to Line No.9, Baghmara village near M/s Makum Motors and

requested the voters of polling stations no.77, 78 and 79

assembled there to cast their votes in her favour by offering

Rs.500/- each to those present there.

4

4. The third act of corrupt practice allegedly committed by

the respondent was at about 12.00 noon on 31st March,

2006 when she is alleged to have visited labour line of

Desam Tea Estate situated near the playground of Desam

Tea Estate and induced the voters present there to cast their

votes for her by offering them Rs.500/- each. Shri Hiranya

Mantri, election agent of the respondent, is also alleged to

have offered Rs.500/- each to some of the voters named in

the petition when he visited the labour line of Desam Tea

estate on the same at about 4.00 p.m., constituting the

fourth act of corrupt practice committed in the course of the

electoral process.

5. The fifth act of corrupt practice is alleged to have been

committed by the respondent at Chakalia Harimandir at

Panibura village at about 1.30 p.m. on 1st April, 2006 when

she offered Rs.500/- each to the voters named in the

petition to induce them to vote for her. Shri Hiranya Mantri,

the election agent of the respondent, accompanied by Shri

Rajen Lahon is also alleged to have visited Nabajyoti L.P. 5

School premises at Panibura Pathar village on the same day

and offered Rs.500/- each to some of the voters named in

the petition who were present there, constituting the sixth

act of corrupt practice.

6. The seventh act of corrupt practices committed by the

respondent was in the form of a feast allegedly organized by

her on the date of the poll i.e. 3rd April, 2006 in a premises

belonging to a garden employee of Namrup Tea Estate near

polling station no.88 of the constituency. According to the

averments made in the election petition the respondent

visited the aforesaid place with her supporters Smt. Runu

Arandhara, President of Dibrugarh Zila Parishad at about

10.00 a.m. and inaugurated the feast. The feast was

enjoyed by the voters of polling station no.88 and was

arranged by congress workers with the help of the money

allegedly given by the respondent. It is also alleged that the

respondent herself invited the voters to the feast and

requested them to vote in her favour.

6

7. In the written statement filed by the respondent the

allegations made in the election petition were strongly

refuted giving rise to fifteen issues. Six out of these issues

pertained to the maintainability of the election petition while

the remaining nine dealt with the commission of the corrupt

practices alleged against the respondent and the

consequences flowing from the same.

8. In support of his case the appellant examined as many

as twenty nine witnesses apart from getting his own

deposition recorded. The respondent also stepped into the

witness box but remained content with examining her

election agent as RW 2. By the judgment impugned in this

appeal, the High Court decided Issues 1 to 6 in favour of the

appellant. Issue nos.7 to 13 relating to the acts of corrupt

practices alleged by the appellant were, however, decided

against the appellant and in favour of the respondent,

resulting in the dismissal of the election petition. The High

Court held that the oral evidence adduced by the appellant

in support of his allegations did not establish the 7

truthfulness thereof. The High Court was also of the view

that although complaints were alleged to have been made to

the authorities conducting and supervising the election

process yet copies of the said complaints had not been

produced. The explanation offered by the appellant for non-

production of the said complaints was rejected by the High

Court as unacceptable. The witnesses examined by the

appellant were found to be either partisan or untrustworthy

on account of their association with the appellant and the

Naharkatia Sports Association of which he is the President.

Relying upon the decisions of this Court, the High Court held

that a corrupt practice ought to be established by cogent

and reliable evidence which evidence the appellant had

failed to adduce. The present appeal assails the correctness

of the said order, as noted above.

9. The law relating to proof of corrupt practices under the

Representation of People Act has been authoritatively

declared by this Court in a long line of decisions starting

with Sarju Pershad Ramdeo Sahu v. Raja Jwaleshwari 8

Pratap Narain Singh and Ors. (AIR 1951 SC 120). It is

not, in our opinion, necessary to refer to all the decisions

that have been delivered by this Court on the subject over

the past six decades since Sarju Pershad's case (supra).

Reference to some of them only should suffice. From a

conspectus of the pronouncements of this Court three

distinct aspects emerge that need to be kept in view while

dealing with an election dispute involving commission of

corrupt practices. The first and foremost of these aspects to

be borne in mind is the fact that a charge of corrupt practice

is in the nature of a criminal charge and has got to be

proved beyond doubt. The standard of proof required for

establishing a charge of corrupt practice is the same as is

applicable to a criminal charge. This implies that a charge of

corrupt practice is taken as proved only if there is clear cut

evidence which is entirely credible by the standards of

appreciation applicable to such cases. (See Rahim Khan v.

Khurshid Ahmed and Ors. (1974) 2 SCC 660, D.

Vankata Reddy v. R. Sultan and Ors. (1976) 2 SCC 455 9

and Ramji Prasad Singh v. Ram Bilas Jha and Ors.

(1977) 1 SCC 260.)

10. The second aspect that distinctly emerges from the

pronouncements of this Court is that in an election dispute it

is unsafe to accept oral evidence at its face value unless the

same is backed by unimpeachable and incontrovertible

documentary evidence. The danger underlying acceptance of

such oral evidence in support of a charge of corrupt practice

was lucidly stated by this Court in Rahim Khan's case

(supra) in the following words:

"We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a- dozen witnesses apparently respectable and dis-interested, to speak to short and simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no X-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkenny-cat election competitions and partisan witnesses wearing robes of veracity, 10

to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life."

11. To the same effect is the decision of this Court in M.

Narayana Rao v. G. Venkata Reddy & Ors. (1977) 1

SCC 771 where this Court observed:

"A charge of corrupt practice is easy to level but difficult to prove. If it is sought to be proved only or mainly by oral evidence without there being contemporaneous document to support it, court should be very careful in scrutinizing the oral evidence and should not lightly accept it unless the evidence is credible, trustworthy, natural and showing beyond doubt the commission of corrupt practice, as alleged."

12. Reference may also be made to the decision of this

Court in Dadasaheb Dattatraya Pawar & Ors. v.

Pandurang Raoji Jagtap & Ors. (1978) 1 SCC 504

where this Court expressed a similar sentiment and Laxmi

Narayan Nayak v. Ramratan Chaturvedi & Ors. (1990) 11

2 SCC 173 where this Court upon a review of the decisions

on the subject held the following principles applicable to

election cases involving corrupt practices:

"(I) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law vide Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987) Supp. SCC 93 and Kona Prabhakara Rao v. M. Seshagiri Rao (1982) 1 SCC 442.

(II) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue vide Manphul Singh v. Surinder Singh (1973) 2 SCC 599, Kona Prabhakara Rao v. M. Seshagiri Rao Rao (1982) 1 SCC 442 and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987) Supp. SCC 93.

(III) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100 vide Jumuna Prasad Mukhariya v. Lachhi Ram AIR 1954 SC 686 and Rahim Khan v. Khurshid Ahmed (1974) 2 SCC 660. (IV) The evidence produced before the court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny vide Ram Sharan Yadav v. Thakur Muneshwar Nath Singh (1984) 4 SCC 649.

12 (V) It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or unimpeachable documents vide Rahim Khan v. Khurshid Ahmed (1974) 2 SCC 660, M. Narayana Rao v. G. Venkata Reddy (1977) 1 SCC 771, Lakshmi Raman Acharya v. Chandan Singh (1977) 1 SCC 423 and Ramji Prasad Singh v. Ram Bilas Jha (1977) 1 SCC 260.

(VI) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded vide Rahim Khan v.

Khurshid Ahmed (1974) (2) SCC 660, Mohan Singh v. Bhanwarlal AIR 1964 SC 1366 and Ramji Prasad Singh v. Ram Bilas Jha (1977) 1 SCC 260."

13. The decision of this Court in Thakur Sen Negi v. Dev

Raj Negi and Anr. 1993 Supp (3) SCC 645 also states

the same proposition and highlights the danger underlying

acceptance of oral evidence in an election dispute as

witnesses in such disputes are generally partisan and rarely

independent. This Court observed:

"It must be remembered that in an election dispute the evidence is ordinarily of partisan witnesses and rarely of independent witnesses and, therefore, the court must be slow in accepting oral evidence unless it is corroborated by reliable and dependable material. It must be remembered that the 13

decision of the ballot must not be lightly interfered with at the behest of a defeated candidate unless the challenge is on substantial grounds supported by responsible and dependable evidence."

14. The third aspect that is equally important and fairly

well-settled is that while as a Court of first appeal there are

no limitations on the powers of this Court in reversing a

finding of fact or law which has been recorded on a

misreading or wrong appreciation of the evidence or law, it

would not ordinarily disregard the opinion by the trial Judge

more so when the trial Judge happens to be a High Court

Judge who has recorded the evidence and who has had the

benefit of watching the demeanour of the witnesses in

forming first-hand opinion regarding their credibility.

15. In Sarju Pershad's case (supra) this Court stated the

approach to be adopted in an appeal arising out of an

election dispute in the following words:

"The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such 14

cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact."

16. Reference may also be made to the recent decision of

this Court in P.C. Thomas v. P.M. Ismail & Ors. (2009)

10 SCC 239 where this Court observed:

"This Court in Gajanan Krishnaji Bapat (1995) 5 SCC 347 has observed that although being the court of first appeal, this Court has no inhibition in reversing such a finding, of fact or law, which has been recorded on a misreading or wrong appreciation of the evidence or the law, but ordinarily the appellate court attaches great value to the opinion formed by the trial Judge, more so when the trial Judge happens to be a High Court Judge, had recorded the evidence and had the benefit of watching the demeanour of witnesses in forming first-hand opinion of them in the process of evaluation of evidence. This Court should not interfere with the findings of fact recorded by the trial court unless there are compelling reasons to do so."

15 17. Coming to the facts of the case at hand the evidence

adduced by the appellant to substantiate the charges leveled

by him against the respondent comprises oral depositions of

as many as 30 witnesses including the appellant himself.

The High Court has critically evaluated the said evidence and

given reasons why the same was insufficient to prove the

charge of corrupt practice leveled against the respondent.

The High Court noted, and in our opinion rightly so, that the

evidence adduced by the appellant did not inspire confidence

and was therefore insufficient to establish the charge of

corrupt practice leveled against the respondent. We have

been taken through the deposition of the witnesses

examined by the parties at considerable length and we see

no reason much less any compelling reason to take a view

different from the one taken by the High Court regarding the

credibility or the sufficiency of the evidence led by the

appellant to prove the charge. We do not consider it

necessary to discuss the deposition of each witness 16

examined on behalf of the appellant for that exercise has

been done by the High Court in detail which we find

satisfactory. We may all the same note a few significant

features that emerge from the deposition of the witnesses

examined by the appellant and that impinge seriously upon

the case of the appellant. The first and the foremost feature

that needs to be noticed is the fact that neither the appellant

nor his election agent (PW 30) claims to be a witness to any

act of corrupt practice alleged against the respondent. The

entire case of the appellant as set up before the High Court

and even before us is that the acts of corrupt practice

allegedly committed by respondent were reported to the

appellant or his election agent by different individuals from

time to time. The second aspect which is noteworthy is that

the affidavit sworn by the witnessess in regard to each

incident of alleged corrupt practice is a carbon copy of the

other. The witnesses have admitted in their cross-

examination that the affidavits were drawn by the counsel

for the appellant in his chamber. A parrot like story has thus 17

emerged from the depositions of the witnesses in regard to

each one of the incidents which we consider unsafe to

believe for purposes of setting aside an electoral process in

which the appellant has lost the election by a huge margin of

nearly 20000 votes.

18. The third aspect which we find noteworthy is that the

witnesses examined by the appellant appear to be partisan

in character. For instance PW-23 Smt. Gita Romoni has

admitted in her cross-examination that she had come to

depose before the Court at the instance of the election agent

of the appellant. She has also admitted that she was a

member of Naharkatia Sports Association of which the

appellant is the President. She appears to have readily

accepted the bribe offered to her but failed to report the

matter to any authority except to the petitioner. Similarly,

PW-23 Smt. Gita Romoni is also a sportsperson and plays

football for Naharkatia Sports Association of which the

appellant is the President. This is true even in regard to PWs

8 and 9 who happen to be father and daughter respectively, 18

the latter being a football player associated with Naharkatia

Sports Association. The incident of bribery alleged against

the respondent at labour line of Desam ea Estate was not

reported by these two witnesses to anyone and not even to

the Manager of the tea garden concerned. So also PWs 15

and 16 are father and daughter whose testimony has been

disbelieved by the High Court for good reasons while dealing

with Issue No.13 pertaining to the commission of corrupt

practice of bribery by Shri Hiranya Mantri, the election agent

of the respondent at Nabajyoti L.P. School premises. Suffice

it to say that the deposition of the witnesses has been

evaluated by the High Court and rejected for cogent

reasons. In the absence of a palpable error in the

appreciation of the said evidence we see no reason to strike

a discordant note.

19. The last but not the least of noteworthy aspects to

which we must refer at this stage is the absence of any

documentary evidence to show that any complaints were

filed by the appellant or his election agent before the 19

Election Commission of India or any other authority upon

receipt of reports regarding commission of the corrupt

practice by the respondent. The appellant's version in cross-

examination and that given by his election agent is that such

complaints were filed before the Chief Election Commission,

the Chief Election Officer of the District, the Returning

Officer and the Constituency Magistrate in writing and

against proper acknowledgement. But neither any copy of

complaint so made nor the acknowledgment regarding their

receipt by the concerned authorities has been produced at

the trial. What is important is that copies of the alleged

complaints relating to the incident of bribery were said to be

available with the election agent of the appellant but the

same were not annexed to the petition or produced at the

trial. The explanation offered for this omission on the part of

the appellant and his election agent is that the election

petition had been filed hurriedly. The High Court has, in our

opinion, rightly rejected that explanation as totally

unacceptable. Even assuming that the election petition had 20

been filed hurriedly on account of constraints of period of

limitation prescribed for the same, nothing prevented the

appellant from placing the said complaints on record or

having the same summoned from the concerned authorities

to whom they were addressed. Non-production of the

documents admittedly available with the appellant that

would lend credence to the version set up by the appellant

that the incident of corrupt practice was reported to him

and/or to his election agent would give rise to an adverse

inference against the appellant that either such complaints

were never made or if the same were made they did not

contain any charge regarding the commission of corrupt

practices by the respondent in the manner and on the dates

and the places alleged in the petition. We may in this regard

refer to illustration (g) to Section 114 of the Evidence Act

which permits the Court to draw an adverse presumption

against the party in default to the effect that evidence which

could be but is not produced would, if produced, have been

unfavourable to the person who withholds it. The rule is 21

contained in the well-known maxim : omnia praesumuntur

contra spoliatorem. If a man wrongfully withholds evidence,

every presumption to his disadvantage consistent with the

facts admitted or proved will be adopted. We need to remind

ourselves that in an election dispute where oral evidence is

generally partisan in character as has been demonstrated in

the present case, the non-production of documentary

material that could lend support to the appellant's charge of

bribery against the respondent would assume great

importance. Absence of a plausible explanation for non-

production of the documentary evidence would completely

discredit the version which the oral evidence attempts to

support.

20. Before parting with the discussion on the evidence

adduced by the appellant we may note one other factor that

needs to be mentioned. In her deposition the respondent

has denied her presence at Langherjan Tea Estate on 29th

March, 2006 or at any place near the said tea estate. She

also denied her presence on 29th March, 2006 at 9.00 p.m. 22

at Line No.9, Baghmara village near M/s Makum Motors

where she is alleged to have committed the corrupt practice

of offering bribe to the voters. The allegation that she was

at the Desam Tea Estate on 31st March, 2006 and went to

the labour line of the said estate has also been denied by

her specifically in her examination-in-chief. The fact that she

had organized a public feast at a quarter belonging to tea

garden employee on 3rd April, 2006, has also been similarly

denied in no uncertain terms. It is significant that the above

statements and denials of the respondent have not been

seriously questioned in cross-examination. In the absence of

cross-examination on these aspects regarding the denial of

the respondent about her presence at the places where she

is alleged to have committed the corrupt practices would

imply that the statement made by her has not been

seriously disputed by the appellant. At any rate, there is

nothing in the cross-examination to discredit the version of

the respondent leave alone suggest that she was making a

false statement regarding her presence at the places where 23

she is alleged to have committed the acts of corrupt

practices.

21. In conclusion we would say that even taking the most

charitable view of the evidence which the appellant has

adduced in support of his case, all that may be said is that a

second opinion on the same material was possible. That,

however, is not by itself sufficient for this Court to upset the

judgment of the High Court or interfere with the result of a

hard earned electoral victory. We may gainfully extract the

following passage from the decision of this Court in Ram

Singh and Ors. v. Col. Ram Singh 1985 (Supp) SCC

611:

"In borderline cases the courts have to undertake the onerous task of, "disengaging the truth from falsehood, to separate the chaff from the grain". In our opinion, all said and done, if two views are reasonably possible - one in favour of the elected candidate and the other against him - courts should not interfere with the expensive electoral process and instead of setting at naught the election of the winning candidate should uphold his election giving him the benefit of the doubt. This is more so where allegations of fraud or undue influence are made."

24 22. Having regard to the seriousness of the charge of

corrupt practice, and the nature of the evidence that has

been adduced by the appellant the present is a fit case

where we ought to give the benefit of doubt to the

respondent and leave her election untouched.

23. In the result this appeal fails and is hereby dismissed

but in the circumstances without any order as to costs.

.................................J. (D.K. JAIN)

.................................J. (T.S. THAKUR) New Delhi July 7, 2010