TMI Blog2003 (8) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... ckward Classes. The caste certificate furnished by the respondent before the Returning Officer was also under cloud, in respect whereof, the Returning Officer entertained grave suspicion as a result of which she lodged an FIR on the basis of which a Criminal Case has also been registered against the respondent. He was also arrested in connection with that case. However, the Returning Officer accepted the nomination paper of the respondent for contesting the aforesaid election. The election was held on 17.2.2000 and the result was ultimately declared on 26.2.2000 declaring respondent Dinesh Chaudhary as elected, having polled 46850 votes whereas the petitioner appellant had secured 39897 votes which was next to the highest polled in favour of the respondent. As indicated above, the petitioner filed an election petition challenging the election of the respondent, amongst other, on the ground that he was not entitled to contest from a reserved constituency as a Scheduled Caste candidate since he is Kurmi by caste. In this light, the case of the petitioner was that the nomination paper of the respondent was wrongly accepted by the Returning Officer. More particularly, since the Retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er issue no.3 is undoubtedly on the question as to whether the respondent Dinesh Chaudhary is Kurmi by caste or is a Pasi having allegedly borne of Deo Kumari Devi belonging to S.C. community. Both parties understood the issue no.3 in the same manner and have led oral and documentary evidence on the point. The oral evidence led on behalf of the petitioner is to the effect that Bhagwan Singh, the father of Dinesh Chaudhary is Kurmi by caste and his wife Jago Devi is also a Kurmi. Some residents of village Adai have also been examined by the petitioner to state that there was no person by the name of Dinesh Chaudhary in that village and they denied the fact that the respondent was borne of Deo Kumari Devi in village Adai. The respondent also examined several witnesses to support his case. One Ram Eqbal Singh has been examined as DW1, aged about 70 years, belonging to village Adai, saying that Bhagwan Singh of village Bhavanichak had some sort of affinity with Deo Kumari Devi and about 50 years ago they married, out of their marriage Dinesh Chaudhary and Naresh Chaudhary were borne, and after the birth of the second son Bhagwan Singh had severed all relationship with Deo Kumari Devi a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent and Bhagwan Singh and Deo Kumari Devi. There was no occasion for the appellant to examine Bhagwan Singh or any member of his family once it was given out by the appellant that Bhagwan Singh and his wife Jago Devi both are Kurmi by caste. The facts of which special knowledge is with the respondent, he alone had to prove those facts by adducing the best evidence on the point of his being a Pasi by caste. It may, however, be pertinent again to quote one of the observations of the High Court, which is as follows : The position of burden of proof as would be on principle of law that any fact which has been asserted by a person should be proved by him and if the same has been proved prima facie then only the burden is shifted to the adverse party to rebut the same. But such sort of shifting of burden and placing of variations remain only an academic one when both parties adduce evidence in support of their contention on the vexed issue. In the light of the above observations it is only to be decided on the basis of the evidence adduced by both the parties as to who has been able to prove one's case. It is true that the respondent has examined some witnesses belonging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved, is not anywhere mentioned specifically in the election petition. It is a queer observation and the approach adopted by the High Court. There was no occasion to state further in the election petition that the respondent was borne of Jago Devi out of her wedlock with Bhagwan Singh who are husband and wife and Kurmis by caste unless it is proved by the other side by any evidence that the petitioner had knowledge of the alleged marriage of Bhagwan Singh with a Pasi lady namely, Deo Kumari Devi in another village namely, Adai, where Bhagwan Singh never resided nor Deo Kumari Devi was ever brought to reside with Bhagwan Singh in his village. However, on the basis of untenable observation, as indicated above, the High Court found : So the prima facie fact regarding the case of the respondent could not be proved from the side of the election petitioner. But definitely a doubt could be created regarding the caste of the respondent as already stated above. Strangely enough we again find yet another fragile and strange observation as follows : The election petitioner himself in his evidence had not denied categorically that the respondent had not been born to the womb of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some other place was wholly within the special knowledge of the respondent. In AIR 1974 SC 1957, Virendra Kumar Saklecha Vs. Jagjiwan and Ors., the allegation of threatening voters with divine displeasure in speech delivered in some meetings was not accepted and an adverse inference was drawn due to non-production of material witness and the notes made by him at the meeting. In yet another case in reported AIR 1964 SC 40, Lachman Utamchand Kirpalani Vs. Meena alias Mota, a matrimonial dispute in which the question as to whether or not the wife had left the husband's place with the consent of husband's parents , non-production of parents of the husband led to adverse inference drawn against the husband. In the case in hand the respondent was supposed to prove the facts within his special knowledge by adducing best evidence namely, Bhagwan Singh and Deo Kumari Devi, which he failed to do. In these circumstances, the High Court erred in observing that the appellant should have examined Bhagwan Singh. The case of the parties is clear from their pleadings and the evidence adduced by them as indicated above. The petitioner challenged the status of respondent Dinesh Chaud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of the other party. We feel that this case would not be applicable in the facts and circumstances of the case in hand. On the other hand, the onus to prove facts within the special knowledge of respondent no. 1, would lie upon him alone to prove those facts. We have already held that best evidence of the respondent's case that his mother was a Pasi has been withheld. In this connection, we may peruse Section 106 of the Evidence Act also which reads as under:- when any fact is especially within the knowledge of any person, the burden of proving to that effect is upon him. . Apart from the above, the appellant had also discharged his burden by proving the fact that the father of respondent No. 1 is Bhagwan Singh, a Kurmi by caste married to Jago Devi also a Kurmi by caste. The natural inference in such circumstances would be that the respondent would, in normal course of events, be a Kurmi by caste. If there is anything contrary to the normal course of events, as pleaded in this case of another marriage of Bhagwan Singh in some other village namely Adai with Deo Kumari Devi who never came to live with Bhagwan Singh in his village nor Bhagwan Singh ever lived there. Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evi also a lady Kurmi by caste. It is also stated that the respondent and his brother are married with Kurmi ladies. These are the material facts relating to the plea raised by the appellant that the respondent is not a Scheduled Caste. We don't think if the respondent means to say that the petitioner should have stated in the petition that the respondent is not born of Deo Kumari Devi said to be married to Bhagwan Singh in Village Adai. If at all these facts would be in the special knowledge of respondent, Bhagwan Singh and Deo Kumari Devi hence not required to be pleaded in the Election Petition. It is not possible as well. In this connection, a reference may be made to a decision of this Court reported in AIR 1960 SC 770 Balwan Singh Vs. Lakshmi Narain and Ors. This case also relates to Election matter and it was held that facts which are in the special knowledge of the other party could not be pleaded by the Election Petitioner. It was found that particulars of the arrangement of hiring or procuring a vehicle would never be in the knowledge of the petitioner, such facts need not and cannot be pleaded in the petition. The learned counsel for the respondent then submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the date of scrutiny objectors could not produce any document or proof to the effect that Dinesh Chaudhary did not belong to Scheduled Caste. Amongst several objections filed against the nomination of Dinesh Chaudhary it is given out there that Dinesh Chaudhary belongs to Kurmi community and his father and mother both are Kurmis. The fact which is quite clear is that the Returning Officer had grave doubt about the veracity of the caste certificate to the extent that she lodged an FIR against the candidate namely Dinesh Chaudhary. In support of the suspicion entertained about the caste certificate being fabricated, she had a report from the District Welfare Officer, Gaya. A criminal case was registered and the respondent was also arrested. It is only surprising that despite such a grave suspicion and initiation of criminal proceedings against the candidate the Returning Officer still accepted his nomination paper. She has stated that on 1.2.2000 after she had lodged the report there was lot of opposition in respect of the nomination paper of the respondent. She has admitted that the respondent was a nominee of the ruling party in the State. She postponed the matter for the next ..... X X X X Extracts X X X X X X X X Extracts X X X X
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