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TMI Blog2011 (1) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 Constituenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya). 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 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. Ashutos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant that the 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 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... den 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in several reported decisions that the election of a 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 candidate lies upon one who objects to the validity of the election. Therefore, the standard of proof to be adopted, while judging the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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. 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 competenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 to 300 voters had gone back on not finding the polling station at the 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, had returned back without casting their votes, when they had l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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