D. Biswas, Actg. C.J.
1. This petition u/s 80 and 80A of the Representation of People Act, 1951, hereinafter referred to as the Act has been filed by the petitioner Shri
Mohibul Haque challenging the election of the sole respondent Shri Banendra Kumar Mushahary to the Assam Legislative Assembly from No. 24
Gauripur Legislative Assembly Constituency in the general election held in the year 2001.
2. The petitioner was a candidate from Indian National Congress while the Respondent was a candidate of Asom Gana Parishad. The result of the
election was declared on 14.5.2001 declaring the respondent elected from the above constituency. The petitioner had polled 47332 votes as
against 50624 polled by the Respondent.
3. The election of the respondent has been challenged on the ground of corrupt practice of bribery and booth capturing. It is alleged that on
8.5.2001 at about 9 P.M., the returned candidate along with two other unknown persons visited the house of Md. Jalaluddin Sheikh at village
Chapgarh Part-1 within the jurisdiction of Polling Station No. 48(Ka). The said two unknown persons collected some villagers, namely - Md.
Abdul Sattar, Ajijur Rahman, Kashim Ali Sheikh, Md. Samsul Haque and Noor Mohammad Sarkar and they were paid Rs. 2000 each by the
returned candidate as consideration for casting their votes in his favour. The respondent also handed over a bundle of 500 rupee notes to Prof.
Noor Mohammad Sarkar directing him to distribute the same to the villagers of Chapgarh Part-1. The petitioner came to know of the same
transaction on 15.5.2001 from Md. Jalaluddin Sheikh and Prof. Noor Mohammad Sarkar.
4. On the same day, the returned candidate also visited the house of Md. Abdul Jabbar Sarkar at Batuatoli Village along with two other unknown
persons. The two unknown persons brought Md. Sabahan Alt, Md. Abdul Karim Bepari, Md. Haidar Ali Sarkar and Md. Nurazzaman Sarkar to
the house of Md. Abdul Jabbar Sarkar. The respondent also paid Rs. 2,000 each to all the villagers as consideration for favour in the election. The
petitioner was informed of the incident by Md. Abdul Jabbar Sarkar on 15.5.2001.
5. With regard to booth capturing, it is alleged that on 10.5.2001, the day of poll, the returned candidate himself along with his supporters captured
Polling Station Nos. 1, 1(A), 2 and 2(A), 14 and 14(A), 15 and 15(A), 17 and 17(A) by force, took possession of the ballot papers and other
voting materials. They prevented voters present their from exercising their right of franchise and stamped the ballot papers registering votes in his
favour.
6. The returned candidate along with 15 unknown persons armed with fire arms in two white coloured Sumo Vehicles came to the Polling Station
Nos. 1 and 1(A) at about 6.15 A.M., ordered the Polling Officers to go to the next room and took possession of the ballot papers. The persons
accompanying the returned candidate stamped the ballot papers and also fixed their thumb impression in the counter foils. In these counter foils the
roll numbers of the voters were not recorded. The entire exercise was completed within half an hour and, by that time, a few voters assembled
near the polling station. But, they were chased away by the respondent and his companions. Thereafter, the returned candidate left the polling
station towards Dukhisukhi Village.
7. The allegation of forceful seizure of polling station and illegal marking of votes have been made in respect of all the polling stations by the
returned candidate as well as his election agent Shri Jyotish Chandra Roy with the help of armed persons. The high percentage of votes cast in
Polling Station No. 5 and 5(A) and abnormally higher percentage of votes polled in favour of the returned candidate in some polling stations have
been cited in support of the allegation of ''corrupt practice''.
8. The petitioner was informed of the aforesaid incidents relating to booth capturing by the returned candidate with the help of armed supporters at
about 10 A.M. The petitioner submitted a complaint to the Returning Officer on 10.5.2001 at 10 A.M. complaining about the booth capturing and
mass rigging by the Returned Candidate. On the same day, at 11 A.M., the petitioner faxed a complaint to the Chief Election Commissioner of
India informing of booth capturing and mass rigging in 40 polling stations. Another complaint was also sent to the Chief Electoral Officer, Assam by
fax complaining about mass scale booth capturing and rigging.
9. The petitioner also took exception with regard to the manner in which the counting of votes took place. According to the petitioner, the ballot
papers relating to Polling Station No. 1 and 1(A) were on Table No. 1. The petitioner and his agents noticed that all the ballot papers of Polling
Station No. 1 were sealed on the election symbol of the returned candidate. The ballot papers were not properly marked as per provisions of
Section 39 of the Conduct of Election Rules, 1961. Objection was lodged to the Assistant Returning Officer with request for cancellation of all the
ballot papers. The matter was referred to the Returning Officer and as per his order the ballot papers pertaining to Polling Station No. 1 were kept
separately. However, at the end of the second round of counting, the Returning Officer declared that as per instruction received Torn the Election
Commissioner of India, counting would proceed. Accordingly, 551 defective ballots polled in favour of the returned candidate were also taken into
consideration.
10. The respondent in his written statement denied the allegations made in the plaint. It is submitted that the petition is not maintainable for non-
joinder of essential parties and non-disclosure of material facts. The allegation of corrupt practice, bribery and booth capturing by the respondent
and his election agent and other workers and supporters have also been denied. According to the answering respondent, the allegations of
payment of monies to the voters are incorrect and fabricated. It is further averred that there was no irregularities in the counting process and the
petitioner himself had admitted in writing at the end of each round of counting that the counting was proper.
11. On consideration of the pleadings and after hearing the learned Counsel for the parties, the following issues were framed :
(i) Whether the election petition is maintainable in its present form ?
(ii) Whether the election of the respondent is vitiated by corrupt practice of bribery as alleged in paragraphs 6 and 7 of the election petition ?
(iii) Whether the election of the respondent has been vitiated because of corrupt practice of booth capturing as alleged in paragraphs 8 to 13 of the
election petition ?
(iv) Whether there was any irregularity in the counting process vitiating the result of the election of the respondent ?
(v) What reliefs, if any, the parties are entitled to ?
12. The petitioner has examined as many as 12 witnesses in support of his election petition including himself. The respondent examined himself and
22 other witnesses. Both the parties also tendered documentary evidence.
13. I have heard Mr. S.S. Dey, learned Counsel for the petitioner and also Mr. N.M. Lahari, learned senior counsel assisted by Mr. N.
Choudhury, learned Counsel for the respondent.
14. Issue No. 1 :
The issue relating to the maintainability of the petition was not raised during the course of the argument. There is nothing on record to show that the
petition is not maintainable. The objection as to maintainability raised earlier has been settled in Miscellaneous Cases No. 9 of 2002 and 20 of
2003. Hence, this issue stands answered in favour of the petitioner.
15. Issue No. 2 :
In paragraphs - 6 and 7 of the election petition, it has been alleged that the respondent had paid moneys to the electors of Chapgarh Part-I and
Batuatoli Villages on 8.5.2001. The petitioner got the information about payment of moneys on 15th May, 2001 from Md. Jalaluddin Sheikh, Prof.
Noor Mohammad Sarkar and Md. Abdul Jabbar. The petitioner (PW 1) in his evidence reiterated his statements made in paragraphs 6 and 7 and
said that he came to know of the same from the aforesaid three persons. In his cross-examination he admitted that he was not present on the
occasion when the voters were bribed. But none of the three witnesses who have reported to him about the payment of moneys to the Villagers of
Chapgarh Part-1 and Batuatoli has been examined by the petitioner. Therefore, his statement that he was informed by the aforesaid three persons
about payment of moneys to the voters remains uncorroborated.
Md. Sobahan Ali, P.W. 2 deposed that on 8.5.2001 he was in his house. At about 11 A.M., two unknown persons called him from outside and
told him that the Respondent wanted him to go to the house of Md. Abdul Jabbar Sarkar. He along with his brother-in-law Md. Haidar Ali Sarkar
went to the house of Md. Abdul Jabbar Sarkar where respondent was found sitting in courtyard along with Abdul Karim Bepari and Kachu. The
respondent offered him Rs. 2000 and told him to distribute it to the poor voters so that they may not cast their votes in favour of the petitioner. He
further stated that the money is still with him and he had not disbursed it to the voters. He further stated that he informed the petitioner about the
incidence on 15.5.2001. In his cross-examination he stated that he did not inform about the incidence to any person except the petitioner till
15.5.2001, i.e., one day after the result of die election was announced. It appears that he came to Gauripur about 11 K.M, away to inform the
election petitioner about the incidence.
P.W. 3 - Md. Haydar Ali Sarkar is a residence of Village Balajan. On 8.5.2001, he went to the house of his sister-in-law at Batuatoli Village who
was seriously ill. In the night at around 10/10.30 P.M., some persons informed them that the Respondent has come to the residence of Abdul
Jabbar Sarkar and they are required to go there. This witness along with his brother-in-law (P.W. 2) went to the house of Md. Abdul Jabbar
Sarkar where the Respondent offered him Rs. 2000. His brother-in-law was initially unwilling to accept the money. The Respondent also asked
him about his identity and offered him Rs. 2000 out he refused to accept the same. In his cross-examination he stated that he did not know the
person who had called him to go to the house of Md. Abdul Jabbar Sarkar. He denied a suggestion that he is a supporter of the election petitioner
and deposed as per election petitioner''s instruction.
P.W.s 1, 2 and 3 are witnesses to the allegation of bribery. P.W. 1 is a reported witness. The persons who had reported him have also not been
examined. P.W. 1 stated that Md. Jalaluddin informed him that Respondent along with other persons went to their house at 9 P.M. and paid them
Rs. 2,000, but Md. Jalaluddin has not been examined in this case. P.W. 2 claimed that he was given Rs. 2,000 to be distributed to the poor voters
for not casting votes in favour of the election petitioner. It is not understood as to why the returned candidate had not solicit votes in his favour and
instead told them not to cast votes in favour of he election petitioner. P.W. 3 is a chance witness. He is not a resident of Batuatoli Village and,
therefore, there cannot be any reason for the respondent to offer him money, particularly when he was not known to him. Besides, P.W. 3 did not
report the matter to the election petitioner. Situated, thus, a strong doubt arises as to the credibility of P.Ws. 2 and 3, If they are truly honest, they
should have reported the matter to the petitioner without loss of time. The claim by P.W. 2 that the money is still with him also leads to an adverse
presumption. He did not hand over the money to the election petitioner on 15.5.2001 when he went to his house at Gauripur to report about the
matter. He is still holding the money. The evidence of P.Ws. 2 and 3 because of these infirmities cannot be acted upon to conclude that the
respondent had bribed the electors of Chapgarh Part-1 and Batuatoli Villages. Non-examination of the three persons named in the election petition
creates a strong doubt as to the authenticity of the petitioner''s claim. The respondent in his evidence has totally denied the charge. Nothing could
be elicited out of him or from other witnesses during the course of cross-examination to show that the respondent was present at Chapgarh Part-1
and Batuatoli Village, as alleged by P.Ws. 2 and 3. According to the respondent (R.W.23), he did not come out of the house after 4 P.M. on
8.5.2001 when the campaign ended except for casting his vote on 10.5.2001. He confined himself inside the house for security reasons. He has
been supported by R.Ws. 21 and 22, the security personnel who were attached with the respondent from before the day of election. The evidence
of R.W.s 21, 22 and 23 read together belie the evidence of P.W.s 2 and 3 that the respondent personally went to the house of Md. Abdul Jabbar
Sarkar and Md. Jalaluddin Sheikh. The quality and quantity of evidence required for the purpose of establishing a charge of bribery are not there in
the instant case.
Hence, this issue is decided against the petitioner.
16. Issue No. 3 :
Issue No. 3 relates to the allegation of booth capturing and large scale rigging made in paragraphs 8 to 13 of the election petition,
At the very outset, I would like to refer to the evidence of the election petition in brief. The election petition is not an eye witness to the alleged
booth capturing and rigging of election. According to the election petitioner, on the day of election the respondent went to Postibari Polling booth
with some armed persons in two white coloured Tata Sumo Vehicles. They threatened the Presiding Officer Shri Dhrubo Kumar Brahma (R.W.
13) and his election agents, namely - Md. Anyad Ali and Saifur Rahman and compelled them to seal the ballot papers in favour of the respondent.
The voters in the queue could not cast their votes. The Presiding Officer had no option but to obey the direction of the respondent. Altogether 551
votes were cast in favour of the respondent. They were in a hurry and by mistake they used the round seal of the Presiding Officer while marking
the ballots instead of the specified seal. In the same fashion they entered the Dukhi Sukhi Polling Station, took possession of the booth, compelled
the police personnel present there to surrender and to mark the ballot papers in his favour. This polling station is 10/12 K.M. way from Postibari.
After Dukhi Sukhi Polling Station they went to Malandubi and Jaldoba Polling Stations. In the same way they captured Malandubi booth and
marked the ballots in favour of the respondent. They resorted to blank firing to scare away the voters. After Malandubi and Jaldoba, they went to
Kursakathi Polling Station, threatened the people present there, captured and marked the ballots in favour of the respondent. According to the
election petitioner, the respondent himself took leading part in capturing the booths. The petitioner further stated that Shri Jyotish Chandra Roy, the
election agent of the respondent was sent to Tulshijhora Polling Station with a Jeep and an Ambassador car boarded with 10/12 armed persons.
They also captured Tulshijhora Polling Station and in the similar fashion marked the ballots in favour of the Respondent No. 2. Thereafter, they
went to Debitola and Parbatijorwar Polling Stations and marked ballot papers in favour of the Respondent by threat and force. All these polling
stations named by the petitioner are situated in deep forest area. According to the election petitioner, the respondent and his party captured as
many as 40 polling booths and rigged the election. However, the petitioner in his examination-in-chief itself stated that he was not present in all
these polling stations, but was reported about the incidents by his polling agents and voters. On 10.5.2001, apprehending trouble, the election
petitioner submitted a written complaint to the Returning Officer to the effect that there was possibility of booth capturing in 40 polling stations. On
the same day, the election petitioner also sent a faxed message to the Election Commission of India and Chief Electoral Officer. According to him,
the Returning Officer did not give any importance to the complaint lodged by him before and also on the day of the election. It is further averred
that because of these corrupt practices, he lost the election by a margin of 3292 votes.
In his cross-examination the election petitioner admitted that he was not present at the time of booth capturing. It appears from his statement in
cross-examination that apart from Presiding Officer, there were three other polling officers in each polling stations besides the police personnel
deployed by the District Administration. He, however, denied a suggestion that there were armed police personnel posted at each polling stations
by the authority. On the day of election, the petitioner did not go out of his house except for casting his vote. On Md. Amzad Ali and Md. Saifur
Rahman came to his house and reported about the booth capturing. On 10.5.2001, at about 9.30 A.M., he complained to the Returning Officer
about the booth capturing of Pastibari over telephone. He further stated that the polling agents and voters of the locality of Dukhi Sukhi Village
came to his house at 9.30 A.M. and informed him about booth capturing.
It appears from the evidence of the election petitioner, both in chief and cross-examination, that Md. Amzad Ali, Md. Saifur Rahman, Md.
Sakawat Hussain, Md. Faizar Ali, Md. Samwaar Hussain, Md. Ali and Md. Azizul Haque had reported him about booth capturing and large scale
rigging of election. But, of all these seven witnesses, only Md. Amzad Ali has been examined as P.W. 4. Md. Amzad Ali was the polling agent of
the election petitioner at Pastibari Middle Vernacular School Polling Station. Shri Dhrubo Kumar Brahma (R.W. 13), Presiding Officer, who was
alleged threatened according to P.W. 1, has been examined by the respondent. He has categorically stated that the election was free and fair.
Capturing of 40 booths and casting of votes cannot be made possible within a span of two-and-half hours.
According to Md. Amzad Ali, the respondent along with 14/15 armed persons entered Postibari Polling Station No. 1 at about 7,15 A.M., took
possession of the ballot papers from the Presiding Officer and polling officers and sealed the ballot papers marking on the election symbol of the
respondent. Some of them also went to nearby Polling Station No. 1(A), took possession of the ballot papers and marked them registering votes
in favour of the respondent. According to him, he informed the election petitioner about the incident at 9 A.M. In his cross-examination, this
witness further stated that mere were no police personnel in the polling station and the casting was due to start at 7 A.M. In support of the
allegation of booth capturing and rigging, the petitioner also examined P.W. 5 Md. Abdul Hussain, P.W. 6 Md. Haidar Ali, P.W. 7 Md. Nasir
Khan, P.W. 8 Md. Abdul Rahman Pradhani, P.W. 9 Md. Khan Minnas Ali, P.W. 10 Md. Sofior Rahman, P.W. 11 Md. Abul Hussain Pradhani
and P.W. 12 Md. Ahial Hoque, most of them are polling agents and workers of the election petitioner. All these witnesses have deposed about the
manner in which the booths have been captured by the respondent and his election agent Shri Jyotish Chandra Roy with the help of armed
personnel. According to them, there were no police personnel in most of the polling stations and the respondent and his election agent Jyotish
Chandra Roy set out in two groups to capture the polling booths numbering 40. It appears from their evidence, both in chief as well as in cross-
examination that by 9/9.30 A.M. that the process of booth capturing and rigging was completed in about 40 polling stations spread over the
constituency. All these witnesses denied the suggestion put to them that they were deposing as per instructions of the election petitioner.
The evidence of booth capturing and rigging of the witnesses above will have to be weighed along with the evidence of the official witnesses
examined by the returned candidate in order to determine the evidentiary value of the statements made by them.
The features that emerge from the statements of the above witnesses are that the respondent himself and his election agent Shri Jyotish Chandra
Roy in two groups set out to capture the polling stations and rigged the election. Further, the entire process was completed before 9.30 A.M., i.e.,
within two-and-half hours. By 9/9.30 A.M., the witnesses named by the election petitioner reported to him about the incidents. That apart, the
evidence of the witnesses show that were was no armed police guard in any of the polling stations and this facilitated booth capturing without any
hindrance.
R.W. 1, Smti Gyatri Baruah, IAS was the Deputy Commissioner and Returning Officer of Dhubri District. The Returning Officer in her evidence
stated that before election, they had identified the sensitive polling stations and planned security measures. According to her, the election petitioner,
a few days before the polling, submitted an application identifying certain polling stations as sensitive and prayed for necessary precaution. Ext-2 is
the complaint submitted by the election petitioner. It mentions of 40 polling stations as sensitive. The witness immediately informed the
Superintendent of Police as well as the Election Observer deputed by the Election Commission of India, Steps were taken accordingly. She did
not receive any report from any of the Presiding Officers about booth capturing. On receipt of the complaint, on the day of election, she had
deputed the Additional Superintendent of Police and Additional Deputy Commissioner to enquire into the matter. After due enquiry, they reported
that everything was peaceful. The Observer of the Election Commission of India also visited all the sensitive polling stations as mentioned by the
election petitioner.
R.W. 2, Shri Apurba Jiban Baruah, IPS was the Superintendent of Police at the relevant time. He stated that the administration received complaint
from the election petitioner beforehand and, accordingly, they planned major security arrangement. The administration deployed armed and other
para-military forces for the purpose of maintaining law and order during the election to neutralise threat perception from the extremists. As a
normal practice, this witness stated that one constable and one home guard were deployed to each polling booth and in sensitive areas, one section
or half section of armed police pickets were deployed. In addition to Army and Police personnel, BSF personnel were also deployed to the
sensitive polling stations. According to him, he along with the returning officer went out to verify and ascertain the truth of the complaint. On
enquiry, they found that the allegation that some voters were prevented by a group (bodo people) from casting votes is not correct. In the morning
hours, Shri Jyotirmoy Chakraborty, Deputy Inspector General of Police also went out and found that the allegation of booth capturing was not
correct. R.W. 4, Shri Arun Kr. Debnath, the Zonal Magistrate, was in-charge of the polling stations in so far law and order is concerned. He
stated that the election was held in a peaceful atmosphere. He also tendered in evidence Ext-Q, Ext-Q-1 and Ext.Q-2 to show that precautionary
measures were taken before the election in all the sensitive polling stations. R.W. 5, Shri B.N. Choudhury, was the Zonal Magistrate of Zone-B as
per master plan prepared for smooth conduct of the election. His duty was to ensure free and fair election. According to him, the election was held
in a peaceful atmosphere. He further stated that Army and CRPF personnel were also deployed for maintaining law and order in sensitive polling
stations.
The evidence of the aforesaid official witnesses clearly indicate that the administration was aware of the sensitive areas and prepared a master plan
beforehand for smooth conduct of the election. The administration also deployed, in addition to the civil police, Army, CRFP and BSF personnel
for maintaining law and order. That apart, other officials entrusted with election duty were also on move to take care of any untoward incident for
ensuring free and fair election. These witnesses have been cross-examined by the election petitioner. The Returning Officer in her cross-
examination made it clear that she had received only one complaint and that she had visited all the polling stations on the same day in the evening
hours in order to ascertain the veracity of the complaint made. R.W. 2, Superintendent of Police, in his cross-examination stated that he had visited
7/8 polling stations in Rupsi area along with the Returning Officer. Similarly, both. R.W. 4 and 5 also reiterated what they have stated in
examination-in-chief. Nothing could be elicited out of these witnesses to show that there were booth capturing and rigging, as alleged by the
election petitioner.
R.W. 6, Shri P. Mushahari, R.W. 7, Shri Nareshwar Brahma, R.W. 8 Shri Tishilal Rabha, R.W. 9 Shri Amar Rabha, R.W. 10 Shri Bhuban
Chandra Sarkar, R.W. 11 Shri Jitendra Ch. Nath, R.W. 12 Shri Madan Mohan Saha, R.W. 13 Shri Dhruba Kumar Brahma, R.W. 14 Shri
Maneswar Brahma, R.W. 15 Shri Dilip Kr. Basumatary, R.W. 16 Shri Bhumewar Gayatri, R.W. 17 Shri Binoy Ch. Karmakar, R.W. 18 Shri
Subodh Karmakar, R.W. 19 Shri Harekrisna Modak and R.W 20 Shri Birendra Nath Brahma were either Presiding Officers or Polling Officers
deployed by the authority for conduct of the election. All of them stated that the election was peaceful and there was no incident of booth capturing
and rigging. They also proved the reports submitted at the end of the poll. All these reports show that against the relevant column, the Presiding
Officers indicated that there was no report of snatching of ballot boxes and ballot papers, and no complaint about any violence. These reports have
been tendered in evidence by the respective Presiding Officers indicating that the election was held in a free and fair atmosphere. These documents
marked as Ext. A to Ext. P support the statements made orally by these witnesses that there was nothing wrong in the election process. None of
the Presiding Officers, as is required under law, has made any complaint to the Returning Officer about any disturbance in their respective polling
stations. In some of the reports, the word ""NIL"" was stuck-off and in place thereof endorsements were made that there was no snatching of
ballots, etc. Either way, it shows that there was nothing adverse in the reports of the Presiding Officer. The word ""NIL"" also suggest that the
election was free and fair.
In the above background, we may now refer to the evidence of the returned candidate-R.W.23. According to him, he defeated the election
petitioner by a margin of 3292 votes. He further stated that he was also declared elected from this constituency in the year 1996 defeating the
election petitioner by a margin of 3400 votes. In view of the law and order situation, this witness added that the administration provided adequate
security measures. All candidates were given security cover, i.e., service of two security personnel and three commandoes. The security personnel
attached to him were moving with him during the election campaign. He was not allowed to move-alone without security people. In addition, five
police personnel were also deputed as house-guard and they also followed the respondent whenever he went out. Due to threat perception from
the extremists, this witness claimed that he never went out after sunset. The election campaign ended at 4.00 P.M. on 8.5.2001 and thereafter he
did not go out of the house till the day of election when he went out around noon to cast his vote in Basbari Polling Station. He denied that he had
distributed moneys to the electors and visited the house of Md. Abdul Jabbar and Md. Jalaluddin and others for influencing the voters. This witness
has been cross-examined by the election petitioner. His statement in cross-examination shows that in Polling Station No. 1, he had secured cent
percent votes. His election agent Shri Jyotish Chandra Roy was in-charge of the control room through out the day wherefrom he was giving
information to the respondent. There is nothing in his cross-examination which can be of any use to the petitioner. The statement of this witness that
he did not go out of the house without the security personnel and did not leave his house after 4.00 P.M. of 8.5.2001 is supported by R.W.21 Shri
Gopeswar Das and R.W. 22 Shri Purnakanta Rabha, Head Police Constable and Havildar of SSB Branch of the State Police respectively. Both
of them in unequivocal term stated that they had always accompanied the Respondent whenever he went out for election campaign. The
respondent, according to them, went out for election campaign during the day time only. According to them, the returned candidate came back
home by 4.00 P.M. on 8.5.2001 after completion of campaign and, thereafter, did not go out except for casting his votes on 10.5.2001. The
statement of R.W. 21 and R.W.22 support the claim of the respondent that all throughout the day, he was in his house except for a brief moment
when he went out to the polling station to cast his vote.
The evidence led by the election petitioner about capturing of 40 polling booths within two and half hours by two groups of armed persons led by
the returned candidate and his election agent Shri Jyotish Chandra Roy do not inspire the confidence of this Court. It is because the polling stations
are situated kilometers apart and there were adequate number of security force on duty to guard against any unlawful activity. It is also evident
from the evidence of the official witnesses that adequate precautionary measures were taken ahead to prevent any untoward incident on the day of
the poll. The evidence of the Presiding Officers and Polling Officers and, the reports submitted by them clearly indicate that there was no snatching
of ballot, intimidation of voters or violence of any kind on the day of poll. The evidence of the official witnesses, Presiding Officers and the Polling
Officers and the police personnel establish the fact that the allegations of large scale booth capturing and rigging of election is not correct. It is not
acceptable that all the official witnesses including Presiding and Polling Officers were hostile to the election petitioner. As against this, the evidence
of the election petitioner and his witnesses sound like a fiction. The witnesses examined by the election petitioner were his polling agents and no
independent person has been examined either from the voters or the villagers in order to bring home the charge labeled by him against the
respondent. Striking a balance between the two sets of evidence, this Court has no alternative but to conclude that the election petitioner has failed
to establish the charge of large-scale booth capturing and rigging of election.
For the discussions above, this issue is answered against the election petitioner,
17. Issue No. 4 :
The allegation of alleged irregularities in the counting process is to be dealt with in this issue.
It has been averred in the election petition that there were irregularities in the counting process particularly with regard to the ballots of Polling
Stations Nos. 1 and 1(A). It is averred that the ballots not properly marked were also accounted for and credited to the account of the
respondent. The respondent in his written statement denied the aforesaid allegation and asserted that the agents of the election petitioner put their
signatures on the relevant official documents after end of every round of counting without any objection.
Strangely, the election petitioner (P.W. 1) did not say anything about any irregularity in the counting process. Not only the election petitioner but
also his witnesses did not utter a single word about irregularities in the counting process. It is, therefore, not understood as to why allegations have
been made in the election petition about irregularities in the counting process. This omission of the election petitioner is suggestive of embellishment.
This issue stands answered against the election petitioner.
18. Issue No. 5 :
In view of the decisions in the aforesaid issues, the election petition has to be dismissed. The allegation of corrupt practice is quasi-criminal in
nature because it not only vitiate the election but also disqualifies the person concerned from taking part in the election for a considerably long time.
Therefore, grave and heavy onus rest on the election petitioner to establish the charge of corrupt practice by fair, cogent and reliable evidence
beyond reasonable doubt. Mere balance of probabilities cannot establish the charge of corrupt practice. This Court in Rainbow Ezung Vs. Mhao
Lotha and Others, further held that mere consistency in the evidence may not weigh as the tutored witnesses are capable of being consistent.
The evidence adduced and discussed hereinbefore are capable of raising a doubt only. It cannot be accepted as proof of bribery and booth
capturing. On the factual matrix available, the judgments relied upon by the election petitioner, namely - D. Venkata Reddy Vs. R. Sultan and
Others, ; Ch. Razik Ram Vs. Ch. Jaswant Singh Chouhan and Others, ; Pratap Singh Vs. Rajinder Singh and Another, ; R. Puthunainar Alhithan,
etc. Vs. P.H. Pandian and others, ; S. Harcharan Singh Vs. S. Sajjan Singh and Others, ; C. Narayanaswamy Vs. C.K. Jaffer Sharief and Others,
; T.A. Ahammed Kabeer Vs. A.A. Azeez and Others, and Ghasiram Majhi Vs. Omkar Singh, cannot improve petitioner''s case. The election
petition cannot but be dismissed as the analysis of the evidence on record clearly show that the petitioner has failed to discharge his burden to
prove the charge of corrupt practices.
ORDER
19. The election petition is hereby dismissed with cost of Rs. 5,000. The security amount deposited to be forfeited.