1. This petition has been filed against the judgment dated 26-10- 2016 passed by the Senior Civil Judge Laxmangarh, District Alwar (Election Tribunal), whereunder the election petition (38/2015) filed by the respondent-election petitioner (hereinafter the EP'') challenging the election of the petitioner-returned candidate (hereinafter ''the RC'') was allowed. The election of the RC as Sarpanch of village Panchayat Tasai, Panchayat Samiti Kathumar, District Alwar was set aside.
2. Election of the RC to the post of Sarpanch of village Panchayat Tasai, Panchayat Samiti Kathumar, District Alwar was called in question under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter ''the Act of 1994'') read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter ''the Rules of 1994'') by the EP inter alia alleging that the RC had sired a third child on 21-10-2007 after the cut off date of 27-11-1995 rendering him ineligible to contest the election to the post of Sarpanch held in January, 2015 under Section 19(l) of the Act of 1994. It was submitted that the RC had only disclosed two children, Aman born on 7-4-2004 and Abhay born on 15-4-2006, in his nomination form. The fact of the third child was suppressed by him to circumvent ineligibility. The RC''s educational qualification to contest the election was also questioned. It was prayed that the election of the RC be set aside and the EP with the second highest number of votes at the election be declared elected as Sarpanch.
3. On notice on the election petition, the RC filed a reply of denial and asserted that he was not disqualified as alleged. It was alleged that the certificate with regard to third child being born to him on 21-10-2007 relied upon by the EP was fraudulently procured with the desire of undoing his election. It was asserted that RC had the requisite educational qualification of class VIII pass to contest the election on the post of Sarpanch. Based on the pleadings, the Tribunal framed following issues:-
"VERNACULAR MATTER OMITTED"
4. In support of his case the EP examined himself as Aw-1 and
Satyendra Singh A2-3 and exhibited 33 documents. While the RC
examined himself Naw-1, Mukesh Singh Naw-2 and Birbal NAw-3
and exhibited 14 documents.
5. The trial court has from the evidence before it more particularly Ex.15, 19, 27 and 31 admissible under Section 35 of the Evidence Act, 1872 and Ex.14 Birth certificate of Krishna born on 21-10-2007 with father Sanjay and mother Meena admissible as public document under Section 17(2) of the Registration of Births and Deaths Act, 1969 (hereinafter ''the Act of 1969'') concluded that aside of two admitted and disclosed children of Sanjay Singh, Aman born on 7-4-2004 and Abhay born on 15-4-2006, the RC had also fathered a third son Krishna born on 21-10-2007 at Zanana Hospital Alwar. Defence evidence of the RC in the form of ration card, survey report and certificates from the private schools was found of little probative worth against the contra overwhelming evidence. The trial court thus found the RC ineligible to contest the election to the post of Sarpanch of village Tasai, Panchayat Samiti Kathumar, District Alwar in terms of Section 19(l) of the Act of 1994 and he yet having contested and won it, set it asdie. Hence this petition.
6. Mr. Kamlakar Sharma, Senior Advocate appearing with Mr.S.S. Hasan for the petitioner submitted that the finding of the trial court with regard to RC having fathered a third son, Krishna on 21-10- 2007 is wholly perverse and vitiated by the failure of the trial court to reckon for the evidence to the contrary produced by the RC before it. He submitted that in any event the Yogya Dampati Vivran Register (Ex.19) purportedly drawn by employees of Medical Health and Family Welfare department reflecting three children having been born to Sanjay Singh, the RC were mere photo copies which were not admissible in evidence before the trial court. The trial court also committed, Mr. Kamlakar Sharma submitted, a palpable perversity in treating Ex.27 the Delivery Registration Register at the Zanana Hospital Alwar recording the birth of a son to RC''s wife Meenu on 21-10-2007, inasmuch as the name of father of the newly born child in the said register was not Sanjay Singh but Sanjay Thakur and of his mother Monu not Meenu, the RC''s wife. Mr. Kamlakar Sharma submitted that the birth certificate (Ex.14) issued by the Registrar, Births and Deaths, Nagar Parishad Alwar on 10-2-2015 was an improperly procured document as it purportedly was issued on an application moved by RC, when in fact no such application was moved by him. It could thus not have been read in evidence or in any event had little probative worth. It was submitted that in fact the RC had lodged a complaint with the Registrar, Births and Deaths Certificate with regard to the birth certificate of Krishna having been issued on a forged application under his alleged signatures. Mr. Kamlakar Sharma submitted that the trial court on the basis of inadmissible and suspect evidence of this kind ought not to have set aside the election of a public representative, reflective of the democratic will. The impugned judgment setting aside the RC''s election thus be set aside, he submitted.
7. Mr. Sudesh Bansal, appearing for the respondent EP submitted that exhibits including Ex.14 Krishna''s birth certificate, evidencing the RC as his father and Meena as his mother, Ex.19 being Yogya Dampati Vivaran Register and Ex.31 being Yogya Dampati Vivran tracking register, all prepared by government employees in the exercise of their public functions in the due course of their duties reflected the RC having three children, rendering him ineligible under Section 19(l) of the Act of 1994. It was submitted that Exhibit- 14 was a certified copy issued under Section 17(2) of the Act of 1969 and a public document within the meaning of Section 76 of the Evidence Act, 1969 whose admissibility cannot be questioned and which by itself was proof of Krishna being the 3rd child of RC. Mr. Sudesh Bansal submitted that a mere complaint about the birth certificate of Krishna recording his birth on 21-10-2007 being issued on a forged application is of no relevance to the admissibility and probative worth of a certified copy of a birth certificate issued by the jurisdictional registrar. He submitted that the law is that improperly procured evidence is admissible in evidence. There is no legal prohibition thereagainst.
8. Mr. Sudesh Bansal submitted that in any event the complaint of the RC was not that Ex.14 was forged, fabricated or dehors the entry in the register of birth maintained by the jurisdictional registrar under the Act of 1969, but only that it was fraudulently procured. Mr. Sudesh Bansal empahsised that the RC did not even state that he had made any attempt for correction of the entry with regard to Krishna''s birth in regard to which the Ex.14 was issued, in terms of Section 15 of the Act of 1963. Mr. Sudesh Bansal submitted that photo copies of Exhibits 19 and 31 were exhibited without any objection before the trial court. And now it does not lie in the mouth of the RC to raise objection as to their admissibility at this stage in this petition. It was further submitted that Ex.27 being delivery register at the Zanana Hospital Alwar records the birth of a child to Sanjay Thakur and one Monu resident of village Tasai. He submitted that the mere inexact description of the parents of the child so born by the hospital stall was not by itself an escape. He submitted that from the evidence on record it was an admitted fact that there was no other person by the name of Sanjay in the village Tasai other than the returned candidate nor one with a wife name Monu. An intelligent view of the matter and appreciation of evidence by the trial court in conjunction with other evidences on record combined to establish to the requisite preponderance of probability that the birth recorded in Exhibit 27, the delivery register of the Zanana hospital Alwar was of a child to Sanjay Singh, the RC and his wife Meenu, albeit recorded as Monu carelessly or with an eye to confuse the identity of the child''s parents. Counsel submitted that in the appreciation of evidence the trial court has the advantage of noting the demeanour of the witness and its appreciation of evidence cannot be easily for the mere asking upset by a writ court exercising supervisory jurisdiction under Article 227 of the Constitution of India. Mr. Sudesh Bansal submitted that the trial court has reckoned for all EP''s evidences and of the RC including the ration card relied upon by him reflecting only two sons as also the certificates issued by the schools only with regard to Aman born on 13-9-2005 and Abhay on 6-6-2006 as children of RC, but found on balance of evidence before it that case of EP with regard to ineligibility of the RC to contest the election in terms of Section 19(l) of the Act of 1994 having sired three children after 27-11-1995 was made out. It was submitted that the impugned judgment does not even remotely suffer perversity, patent illegality impinging on the trial court''s jurisdiction to warrant interference by this court. Heard. Considered.
9. Section 10 of the Act of 1969 provides that it shall be the duty inter alia of any midwife or any other medical or health attendant at a birth or death to notify it to the jurisdictional Registrar within such time and in such manner as it may be prescribed. Section 15 of the Act of 1969 provides that if it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under the Act is erroneous in form or substance, or has been fraudulently or improperly made, he may subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled, correct the error or cancel the entry by suitable entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation. Section 16 of the Act of 1969 mandates that every Registrar shall keep in the prescribed form a register of births and deaths for the registration area or any part thereof in relation to which he exercises jurisdiction. Section 17 of the Act of 1969 provides for search of births and deaths register subject to any rules made in this behalf by the State Government including rules relating to the payment of fees and postal charges. Any person can obtain an extract from such register relating to any birth or death. Sub section 2 of Section 17 of the Act of 1969 provides that all extracts given under Section 17 shall be certified by the Registrar or any other officer authorised by the State Government to give such extracts as provided in Section 76 of the Indian Evidence Act, 1872 and shall be admissible in evidence for the purpose of proving the birth or death to which the entry relates.
10. Exhibit 14 on record of the trial court was the birth certificate issued by the Registrar, Births and Deaths Alwar testifying to the factum of Krishna being born to RC''s wife Meenu on 21-10-2007. It records the RC as the father. The said certificate though dated 10-2- 2015 reflects the fact that it was issued on the basis of an entry in the Register of birth made on 23-10-2007 about a child''s birth on 21- 10-2007 (This is corroborated by Ex.27 Delivery Registration Register). In terms of 17(2) of the Act of 1969 the said certificate is a public document within the meaning of Section 76 of the Evidence Act, 1872 and admissible in evidence. It stands proved under Section 74 of the Evidence Act, 1872 without its maker being examined in court. The mere fact that a complaint was made with regard to the issue of the said certificate purportedly on an application with a forged signature of the RC is of no event, particularly when the RC made no attempt for correction of said entry with regard to birth of his son on 21-10-2007. The RC''s complaint of the application for issue of Birth certificate of Krishna having forged would take its own course. But neither the admissibility nor the probative value of Ex.14 birth certificate would be compromised. To dislodge the probative worth of Ex.14, the RC was free to lead evidence in rebuttal, call for the register of births maintained by the concerned registrar and summon him to testify on the alleged falsity of the Ex.14 recording that Krishna was born to the RC and his wife Meena on 21-10- 2007. That was not done. Consequences would follow.
11. In the case of Gopi Chand Arya Vs. Smt.Bedamo Kuer [AIR 1966 Patna 231] the Division Bench held that a presumption of correctness attaches to an entry in the register of Births and Deaths and heavy onus would lie, upon the one who contests its correctness, by bringing in evidence of probative worth to dislodge it. It was held in the aforesaid case that the presumption of correctness must attach to a certificate, albeit relating in the aforesaid case to a death, as it was a certified copy of a public document.
12. In Toral Mahto Vs. Chandeshwar Mahto [AIR 1972 Patna 13] the Division Bench held that a public document can be admitted in evidence without calling as a witness the officer who prepared it. In the case of Smt. Vanajakshamma Vs. P.Gopala Krishna [AIR 1970 Mysore 305] it was held that the register of birth and death maintained by the Municipality is a public document and certified copy of its extract is admissible to prove contents of such documents.
13. As far as the alleged improper procurement of Ex.14, i.e. the birth certificate of Krishna is concerned, as long as the evidence is relevant to determination of the issue before the court the manner in which it was obtained, is of no event. In Pushpa Devi Jatia Vs. M.L. Wadhawan [(1987)3 SCC 367] the Apex Court has held that if the evidence is relevant, the court is not concerned with the method by which it was obtained. The court noted with approval the view of the Judicial Committee of the Privy council in Kuruma Vs. Reginam [(1955)1 All ER 236, 239] where it was held that the test to apply (both in civl and criminal cases) in considering which evidence is admissible is whether it is relevant to the matter in issue. If it is, the court is not concerned with how it was obtained. The court also approved R.V. Sang [(1979)2 All ER 1222, 1230-31] where it was held that the court has no discretion to refuse to admit relevant evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained as long as the evidence is relevant to the adjudication of the dispute before it.
14. Aside of the admissibility, proof and probative worth of Ex.14 for reasons detailed above and the failure of the RC to bring on record any contrary evidence at all to displace the presumption of the correctness of a public document, there was other evidence on record in the form of extracts of public register maintained by the medical and Health department Ex.17 (Yogya Dampati Tracking Register), Ex.19 (Yogya Dampati Vivran Register) and Ex.31 (Yogya Dampati Register) admissible under Section 35 of the Evidence Act, 1872 to prove that the RC had three children while he had only disclosed two of them. No doubt Ex.17, 19 and 31 were photocopies. But they were all exhibited and marked so without any objection during trial. That is the end of the matter as to their admissibility as the objection as to documents being photocopies and not certified copies is one that relates to the mode of proof only.
15. In the case of RVE Venkatachalla Gounder Vs. Arulmigu Viswesaraswami & VP Temple [(2003)8 SCC 752] the Apex court held that ordinarily an objection to admissibility of evidence should be taken when it is tendered and not subsequently, and where objection as to admissibility of a document in evidence does not per se dispute the admissibility of document in evidence for reasons of legal prohibition, but is directed towards the mode of proof holding it to be irregular or insufficient, such objection cannot be allowed to be taken subsequent to the document having been admitted in evidence. The Apex Court held that so was the rule of fair play for if the objection as to the mode of admissibility of a document were to be taken at the appropriate time it would have put the party relying on such document to notice and enabled it to tender evidence by the mode prescribed and to cure the defect pointed out as to admissibility at the relevant time before the court. It was held that omission to object to a document being tendered in evidence and marked Exhibit in such situation becomes fatal, because by the failure to do so by a party, the other one tendering the evidence is entitled to act on an assumption that the opposite party is not serious about the mode of proof of document. It was held that waiver would operate in such situation on a party subsequently raising objection on the ground of mode of proof of a document already admitted.
16. In the instant case it is also relevant to note that Ex.17 (Yogya Dampati Tracking Register), Ex.19 (Yogya Dampati Vivran Register), Ex.31 (Yogya Dampati Register) being photo copies of entries relating to the RC were obtained by the EP under the Right to Information Act, were endorsed by the jurisdictional Medical officers and when submitted in evidence before the trial court were not objected to, but marked as exhibits. I am of the considered view that no objection as to the admissibility of these documents for reason of being only photocopies and not certified copies can be raised at this stage. These documents are admissible under Section 35 of the Evidence Act, 1872, which reads thus:-
"35. Relevancy of entry in Public record or an electronic record made in
performance of duty.- An entry in any public or other official book,
register or record or an electronic record, stating a fact in issue or relevant
fact, and made by a public servant in the discharge of his official duty, or
by any other person in performance of a duty specially enjoined by the law
of the country in which such book, register, or record or an electronic
record is kept, is itself a relevant fact."
17. In the case of Karicherry Charadan Nair Vs. Edayillam
Kunhambu Nair [AIR 1982 Kerala 232] it was held that entries in
cultivation registers and registers of Paddy Producers and Rent
Receivers are admissible even without examining the public servant
who made the entries. It was held that the combined effect of
Sections 35, 65(e), 76, 77 and 79 of the Evidence Act, 1872 is to
enable proof of public documents by production of certified copies of
the entries. Where such certified copies are produced law does not
insist on the maker of these entries to be examined in court in proof
of the entries.
18. Further, this court in the case of Smt.Ummed Kanwar Vs. Prabhu Singh [2012(4) WLC 14] has held that standard of proof required in an election petition founded on ineligibility of RC is not to be proved beyond reasonable doubt. The burden on the EP is to prove her case on preponderance of probability. The evidence laid should be capable of leading to a reasonable inference that the fact in issue i.e. of the ineligibility of RC has been proved. Reference was made to the judgment of the Apex court in the case of Maharashtra State Board of Secondary & Higher Secondary Education Vs. K.S. Gandhi [(1991)2 SCC 716] wherein it was held that standard of proof in case other than criminal is not proof beyond reasonable doubt, but based on preponderance of probability and where a reasonable and probable inference can be drawn from the facts and evidence on record in favour of the plaintiff, his petition is to be allowed.
19. The standard of proof required in the underlying election petition laid by the EP alleging that the RC was not eligible to contest the election to the post of Sarpanch of village Tasai, Panchayat Samiti Kathumar in view of three children all born subsequent to 27-11- 1995 was preponderance of probability, I am of the considered view that there was adequate evidence of probative worth on record before the trial court to hold in favour of the EP and against the RC. Not the least the birth certificate dated 10-2-2015 (Ex.14) regarding birth of Krishna on 21-10-2007 to RC''s wife Meenu as also the extracts of the Yogya Dampati Register (Ex.19) and Yogya Dampati Tracking Register (Ex.17) as maintained by the concerned department in the regular course of their work and discharge of duties. The Evidence Act, 1872 defines "proved" as "A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". There was clearly adequate proof before the trial court that Krishna born on 21-10-2007 and that the RC Sanjay Singh and his wife Meenu had three children. Two Aman born on 7-4-2004, Abhay born on 15-4-2006 and the third Krishna born on 21-10-2007. This rendered the RC ineligible to contest the election for the post of Sarpanch under Section 19(l) of the Act of 1994.
20. In the circumstances, I am of the considered view that nothing perverse or illegal can be attributed to the findings of the trial court that the RC Sanjay Singh was ineligible to contest the election to the post of Sarpanch of village Tasai, Panchayat Samiti Kathumar District Alwar when it was held on 18-1-2015. Consequently, I find no force in the petition. Dismissed.
